San Ildefonso Pueblo Code
Received: 1996
TITLE
IV - RULES OF CRIMINAL PROCEDURE
CHAPTER 8 - PRE-TRIAL PROCEDURE
Sec. 8.1 - Rules to Govern.
These rules govern the procedures in all criminal cases in the Courts of the Pueblo of San Ildefonso. These rules are intended to provide for fair trial and the just determination of every criminal proceeding before the Courts. These rules shall be construed to secure simplicity in procedure, fairness in administration, and the elimination of unjustifiable expense and salary.
Sec. 8.2 - Complaint.
Any criminal complaint filed in the Court to be valid shall state the following facts:
(1) The name of the complaining witness, the name of the defendant and the statement whether the defendant is an Indian within the exterior boundaries of the Pueblo of San Ildefonso or on the other lands under the jurisdiction of the Pueblo of San Ildefonso.
(2) A short statement of the acts constituting the offense in ordinary language, including the alleged acts and the time and place of the acts, making reference to the section of the Criminal Offenses. If the acts constitute more than one offense, such offense should be stated separately. Crimes may be charged using the language of this Code.
(3) The name of the Judge before whom the complaint was filed and the date of filing. A complaint shall be signed by the complaining witness and the Judge.
(4) Prior to the signing of any criminal complaint by the Judge involving a family dispute, the Judge may counsel with the parties, or refer them to someone designated by him as Peacemaker in an effort to resolve the dispute between the parties, according to the tradition and custom of the Pueblo of San Ildefonso, or the Judge may divert the offending party to an appropriate treatment or rehabilitation center if the facts warrant.
Sec. 8.3 - Warrant to Apprehend.
An arrest warrant shall be issued by the Judge.
(1) After a complaint has been filed from which it appears that there is probable cause to believe that an offense in violation of this Code has been committed and is considered serious and that the defendant has committed it.
(2) The warrant shall contain:
A. The name of the person to be arrested or if his name is unknown, any description by which he can be identified with reasonable certainty;
B. The offense or offenses charged in the complaint;
C. The date of issuance and signature of the Judge.
(3) No warrant shall be issued more than three (3) years after the commitment of any alleged offense.
(4) In lieu of an arrest warrant, the Judge may issue a summons or citation naming the defendant and offense charged and ordering the person to appear before him at a specified time and place to enter a plea to the charge.
Sec. 8.4 - Execution of Warrant of Summons.
The warrant, summons, or citation still be executed or served by a Law Enforcement Officer within the jurisdiction of the Pueblo of San Ildefonso or in "hot pursuit" of the person or persons. Upon execution of the warrant, summons, or citation or the failure to find the defendant, the Law Enforcement Officer shall endorse the warrant, summons, or citation and return it to the Clerk of the Court. Any unexecuted warrant, summons or citation may be canceled at any time by the Judge who issued it.
Sec. 8.5 - Law Enforcement Officer.
Law Enforcement Officers shall include any police officer, probation and parole officer, juvenile officer, game warden or livestock or range inspector, or other officer commissioned by the Governor of the Pueblo of San Ildefonso or by the Federal Government to make arrests.
Sec. 8.6 - Arrests.
No Law Enforcement Officer, or other officer commissioned to make arrests, shall arrest any person for any offense defined by this Code unless:
(1) The offense was committed in the presence of the Officer, or
(2) The Officer had probable cause in believe that the person has committed such an offense, or
(3) A warrant has been issued for the arrest of the person.
Sec. 8.7 - Warnings.
When any person is arrested, he shall:
(1) Be informed of the right to remain silent and that any statement made by him may be used against him;
(2) Be informed of the complaint against him;
(3) Be informed of his right to retain lay counsel or professional attorney at his own expense;
(4) If arrested pursuant to a warrant, receive a copy of the warrant and complaint at the time of arrest or as soon thereafter as possible.
Sec. 8.8 - Bail.
Every person charged with an offense before the Court may be admitted to bail, after photographing and fingerprinting, before conviction (or after conviction if an appeal is pending) as provided under these conditions.
(1) Acceptance by the Tribal Court of a cash surety bond or undertaking as will in the opinion of the Judge ensure the appearance of the defendant on the date set for trial, giving consideration to the nature and circumstances of the offenses and the character, reputation, and previous criminal record of the defendant and his residence.
(2) The amount of the bail shall not exceed twice the minimum fine for each offense charged, but in no event shall the bail be set for more than $500.00.
(3) The defendant also may be released by the Judge on or before the arraignment before the Court upon the defendant's own recognizance.
Sec. 8.9 - Forfeiture.
Upon good cause shown, the Court may increase or decrease the bail originally set (but not over $500.00). If the defendant fails to appear before the Court as lawfully required, the Court may direct on entry of such failure to be made in the record, order the forfeiture of the bond or cash deposit and issue a warrant for the arrest of the defendant.
Sec. 8.10 - Return of Surety.
Any cash or other property given as security by the surety or defendant shall be returned by the Court upon the entry of a not guilty verdict or the issuance of a commitment order unless the case is appealed in which cash bail or surety may be extended.
Sec. 8.11 - Detention.
No person shall be detained, jailed or imprisoned under this Code for a period longer than seventy-two (72) hours (exclusive of Saturdays and Sundays and holidays) without a preliminary (arraignment) hearing before the Tribal Court and shall be released from custody after seventy-two (72) hours if no hearing is held and no temporary commitment order is issued. During the period of detention, the person may be taken under protective custody to a treatment center if, in the opinion of the Officer, this procedure is necessary for the well-being of the arrested or detained party. If a longer time than seventy-two (72) hours is needed before being brought before a Judge, the person shall be released on his own recognizance or bail pending time of arraignment.
Sec. 8.12 - Arraignment Procedure.
At the arraignment:
(1) The complaint shall be read to the defendant who shall be properly identified.
(2) The Judge shall explain the offense and the penalties prescribed by this Code to the defendant and shall-determine that the defendant understands the nature of the charge and possible penalties.
(3) The Judge shall advise the defendant of his right to remain silent and that any statement made by the defendant may be used against the defendant and the right at his own expense to the assistance of lay counsel or Professional attorney admitted to practice before the Court of the Pueblo of San Ildefonso and the right to a trial by jury, under the provisions of this Code.
(4) The Judge shall ask the defendant to plead as follows: guilty, not guilty or no contest. A plead of 'no contest' shall be interpreted by the Court for the purpose of sentencing in the same way as admission of guilt. If the defendant refuses or fails to plead, or if the Court does not accept the defendant's plea of guilty, the Court shall direct the entry of a plea of not guilty on behalf of the defendant.
(5) The Judge shall be satisfied that any plea is made at the free will of the defendant.
(6) The Judge may defer any further action in the case and take the case under advisement upon defendant's agreement to enter a treatment or rehabilitation facility.
Sec. 8.13 - Sentencing.
If the Court is convinced that the defendant pleaded guilty of his free will or pleads no contest, the Court shall accept the plea and shall sentence the defendant immediately or within a reasonable period during which time the defendant may be detained by temporary commitment, released on bill or on own recognizance. Before sentencing, the police report shall be read by the arraignment officer and the Judge shall acknowledge that the police report is sufficient for finding of guilt.
Sec. 8.14 - Trial Date.
If the defendant enters a plea of not guilty, the Court shall set a date for trial which shall be not less than five (5) days nor, unless based on due cause, more than sixty (60) days from the date of arraignment.
Sec. 8.15 - Release.
The defendant may be eligible for release from custody while awaiting trial in accordance with the provisions of this Code.
Sec. 8.16 - Order for Detention.
Unless so released, the Judge may order the detention of the defendant by signing a temporary commitment to that effect.
Sec. 8.17 - Commitments.
There shall be issued for each person held for trial or sentencing a temporary commitment and for each person held after sentence has been passed a final commitment.
Sec. 8.18 - Search and Seizure, Warrant.
Every Judge of the Tribal Court shall have the power to issue warrants for search and seizure of property within the jurisdiction of the Court provided that no warrant shall be issued except:
(1) Upon probable cause that an offense has been committed supported by oath or affirmation signed by the complaining witness naming or describing the person and particularly describing the items or articles to be seized, the place to be searched and the reasons for its issuance.
(2) To an Officer to be served between 7:00 A.M. and 10:00 P.M., unless the Judge for good cause authorizes service at another time and such authorization is noted on the warrant.
Sec. 8.19- Search and Seizure, No Warrant.
No Law Enforcement Officer shall search or seize any property without warrant nor shall any property seized be admitted into evidence unless:
(1) The Officer has reasonable cause to believe that the person in possession of such property is engaged in the commission of an offense.
(2) The search is incidental to a lawful detention of a motor vehicle or lawful arrest or is reasonably related to the offense for which the defendant is taken into custody.
(3) The Officer has probable cause to believe that the person has in possession contraband or fruits of the crime and the time to get a warrant would endanger the Officer's safety or seriously risk the destruction of the evidence.
Sec. 9.1 - Right to jury.
Criminal cases shall be tried by the Court unless the defendant demands a jury trial. Any defendant charged with a criminal offense under this Code which could result, by law or custom, in punishment by confinement is entitled to a jury trial on demand. The demand may be made orally at the preliminary hearing or arraignment or by written application to the court three (3) days thereafter.
Sec. 9.2 - Trial.
The trial should proceed in the following manner, before the Court if no jury trial is demanded; if, the defendant is entitled to and has demanded a trial by jury, and after the jury has been impaneled as provided by the rules of the Court and sworn by the Judge:
(1) The Clerk shall read the complaint and state the defendant's plea.
(2) The Court shall give all of its rulings on motions already filed and accept any pre-trial notions for ruling by the Court. All arguments on motions shall be made outside the hearing of the jury in a trial by jury.
(3) The opening statements shall be made by the Prosecutor or person acting in such capacity followed by the defendant or his lay counsel or professional attorney. The Prosecutor may waive an opening statement and the defendant may waive an opening statement or reserve the right to make an opening statement after the prosecution has rested its case.
(4) Evidence shall be presented in support of the charge, and the defendant, lay counsel or professional attorney shall have the right to cross examine any witnesses called by the Prosecutor.
(5) The testimony of witnesses shall be taken orally in open Court, but upon motion of prosecutor or defendant, lay counsel or professional attorney, witnesses may be sequestered or excluded until called upon to testify. Testimony can also be given as evidence by properly executed sworn affidavits, dispositions or written interrogatories. Physical evidence shall be introduced and admitted only after a proper foundation has been laid as to its relevancy.
(6) The defendant any make a motion for judgment of not guilty or directed verdict of acquittal at the close of the evidence offered by the prosecution. If the evidence is not sufficient to support a conviction of the offense charged (beyond a reasonable doubt), the Court shall order the entry of judgment of not guilty or a directed verdict of acquittal of the offense charged.
(7) The Court nay also enter judgment of not guilty on its own motion after the evidence on either side is closed, and shall do so if the evidence is not sufficient to support a conviction of the offense charged beyond a reasonable doubt.
(8) After the prosecution has rested its case, the defendant, lay counsel or professional attorney shall have the burden to proceed with the defense and evidence in support thereof, and the prosecution shall have the right to cross-examine any witnesses called by the defendant, lay counsel or professional attorney.
(9) The parties may then offer rebutting testimony only on matters relating to direct testimony, except that the Court may, in the interest of justice, permit the introduction of newly discovered evidence.
(10) The prosecution and the defendant, lay counsel or professional attorney may then present final arguments in the case, the prosecution having the right to open and close.
(11) The Judge shall charge the jury orally or in writing stating the law as applicable to the case. At any time during the trial, the Judge may give the jury such instruction as to the law as he considers necessary. The Judge shall instruct the jury that the defendant is presumed to be innocent, that the burden of proof rests on the prosecution, that the evidence must show beyond a reasonable doubt that the defendant has committed the crime charged, that if the defendant did not testify, that his failure to testify shall not be considered as evidence that he is guilty, and that the verdict of the jury must be a majority vote, meaning that all but one (1) jury member must agree to the verdict.
(12) Objections to the instructions not made before the jury determines its verdict shall be deemed waived. The Federal Rules of Evidence shall be followed as applicable.
Sec. 9.3 - Rights of Defendant.
In all criminal prosecutions, the defendant shall have the following rights:
(1) The right to be present throughout the proceeding and to defend himself in person, by lay counsel or professional attorney at his own expense.
(2) The right to know the nature and cause of the charge and to receive a copy of the complaint.
(3) The right to present witnesses and to meet the witnesses against him face to face and cross-examine them.
(4) The right to compulsory process to obtain the testimony of witnesses and physical evidence in his behalf.
(5) The right to a speedy and public trial and a trial by an impartial jury if conviction could result in punishment by confinement under this Code.
(6) The right not to testify. The failure of the defendant to testify shall not be construed against him or be commented upon by the prosecution.
CHAPTER 10 - POST TRIAL PROCEDURE
Sec. 10.1 - Directed Verdict.
At any time after the close of the evidence, the Court may direct a verdict of acquittal. If no directed verdict of acquittal is ordered, the Court shall charge the jury as to the law and the jury shall retire to determine a verdict. The jury must render a verdict for conviction by majority vote of five (5) jurors on any charge in the complaint. After the verdict of the jury has been announced by the Judge, he shall discharge the jury. If the trial is without a jury, the finding of guilt or innocence shall be made by the Court.
Sec. 10.2 - Acquittal.
If the Court finds the defendant not guilty or the jury brings in a verdict of not guilty on all counts of the complaint, a judgment of not guilty or acquittal shall be announced by the Court and entered in the official records by the Clerk, along with the names of the jurors in the case, and the defendant shall be immediately discharged.
Sec. 10.3 - Conviction and Sentencing.
Within a reasonable time or immediately after a plea of guilty, a finding of the guilt by the Court, or a verdict of guilty by the jury, and after such pre-sentencing investigation as the Court may direct, the Court shall sentence the defendant in its discretion pursuant to the applicable provisions of this Code, and deliver to the Law Enforcement Officer a signed copy of the final commitment. The judgment of conviction shall state the charge, the plea, the verdict and the sentence. The judgment shall be signed by the Judge and entered in the official records by the Clerk. The final commitment shall direct that the prisoner be held in custody until the prisoner has satisfied the sentence according to law, or be held in suspension provided the convicted person follows a course of treatment and rehabilitation or other order of the Court.
Sec. 10.4 - Motion for New Trial.
A motion for a new trial to be held in the Tribal Court may be made by the defendant within seven (7) days after judgment. The Court shall grant a motion for a new trial for the cause set forth in the Rules of the Court, if such trial, in the discretion of the Court, is required in the interest of justice.
Sec. 10.5 - Right of Appeal.
Upon imposing sentence in a case which has gone to a trial after a plea of not guilty, the Court shall advise the defendant upon conviction by the Court or jury, if the defendant has not already been so advised, of his right to file an appeal within ten ( 10) days. All appeals shall be made in accordance with the Rules of the Court.
Sec. 10.6 - Probation.
After conviction of an offense by the Court or jury, the Court may suspend, upon such reasonable terms and conditions as it considers necessary, at any time, all or any part of the sentence or remainder of the sentence and release the prisoner on probation under the rules of the Court. In granting probation, the Judge shall consider the prior criminal record of the prisoner, his background, character, financial conditions, family obligations, and other conditions as specified in the Rules of the Court.
Sec. 10.7 - Violation of Probation and Parole.
If any person shall violate probation or parole, that person may be required to serve the balance of the original sentence (plus an additional sentence for probation or parole violation), but the Court shall not revoke probation or parole except after a hearing at which the defendant shall be present, advised of the charges on which revocation is proposed, and defend against the charges. The defendant may be admitted to bail pending such hearing.
Sec. 11.1 - Discretion of Court.
Any final commitment of the Court may include:
(1) Serving of sentence on weekends or in any other appropriate manner.
(2) Labor for public purposes of the Pueblo while in confinement or in lieu thereof.
(3) Confiscation of any material substance or equipment used in wrongful and illegal acts and making appropriate disposition thereof pursuant to this Code.
Sec. 11.2 - Credit.
The convicted person shall receive full credit toward his sentence for any time spent in confinement prior to final commitment in connection with the same offense, and further, shall be given one (1) additional day credit each week for good time served.
Sec. 11.3 - Confinement in Lieu of Fine.
No convicted person shall be confined solely because of inability to pay a fine, however, sentence may be imposed upon any convicted person who is able but refuses to pay a fine.
Sec. 11.4 - Payment of Fine.
When the defendant is sentenced to pay a fine, the Court may permit payment within a definite period or by installment. In the absence of such permission, a fine shall be payable forthwith. Fines and any installment thereof shall be payable to the Court Clerk, properly receipted for and entered upon the trial record and docket, and deposited weekly with the Pueblo Treasury.
Sec. 11.5 - Work Credit.
Any prisoner who performs work for the Tribe during the period of his sentence shall be given two (2) days credit for each one (1) day of satisfactory work performed.