White Earth Band of Chippewa, Comprehensive Law and Order Manual

WHITE EARTH BAND OF CHIPPEWA RULES OF CRIMINAL PROCEDURE

RULE 1. SCOPE, APPLICATION, GENERAL PURPOSE AND CONSTRUCTION

Rule 1.01 Scope and Application

By order of the White Earth Reservation Tribal Council, pursuant to the Constitution of the Minnesota Chippewa Tribe, the White Earth Band of Chippewa Indians establish these Rules of Criminal Procedure to govern the procedure in prosecutions for gross misdemeanors, misdemeanors, and petty misdemeanors in the White Earth Tribal Court. These rules will govern the procedure of the tribal court to ensure and protect the rights of parties subject to the jurisdiction of the White Earth Reservation. Except where expressly provided otherwise, misdemeanors as referred to in these rules shall include statutes, codes, local ordinances, charter provisions, rules or regulations punishable either alone or alternatively by a fine of not more than $5000.00 or by imprisonment of not more than 1 year.

Rule 1.02 Purpose and Construction

These rules are intended to provide for the just and speedy determination of criminal proceedings without the purpose or effect of discrimination based upon race, color, creed, religion, national origin, sex, marital status, status with regard to public assistance, disability, handicap in communication, sexual orientation, or age. They shall be construed to secure simplicity in procedure, fairness in administration, and the elimination of unjustifiable expense and delay.

RULE 2. COMPLAINT

Rule 2.01 Contents; Before Whom Made

The complaint is a written signed statement of the essential facts constituting the offense charged. With the exception of traffic matters which can be initiated by tab charge, all criminal prosecutions for violation of the White Earth Band Law & Order Codes shall be initiated by complaint.

Except as provided in Rules 11.06 and 15.08, the complaint shall be made upon oath before a judge or judicial officer of the tribal court, a clerk or deputy clerk of court, or a notary public.

Except as provided in Rules 6.01, Subd. 3, 11.06 and 15.08, the facts establishing probable cause to believe that an offense has been committed and that the defendant committed it shall be set forth in writing in the complaint, and may be supplemented by supporting affidavits or by sworn testimony of witnesses taken before the issuing judge or judicial officer. If sworn testimony is taken, a note so stating shall be made on the face of the complaint by the issuing officer. The testimony shall be recorded by a reporter or recording instrument and shall be transcribed and filed. Upon the information presented, the judge or judicial officer shall determine whether there is probable cause to believe that an offense has been committed and that the defendant committed it. When the offense alleged to have been committed is punishable by fine only, the determination of probable cause may be made by the clerk or deputy clerk of court if authorized by court order.

Any complaint, supporting affidavits, or supplementary sworn testimony made or taken upon oath before the issuing judge or judicial officer pursuant to this rule may be made or taken by telephone, facsimile transmission, video equipment, or similar device at the discretion of such judge or judicial officer.

Rule 2.02 Approval of Prosecuting Attorney

A complaint shall not be filed or process issued thereon without the written approval, endorsed on the complaint, of the prosecuting attorney authorized to prosecute the offense charged, unless such judge or judicial officer as may be authorized by law to issue process upon the offense certifies on the complaint that the prosecuting attorney is unavailable and the filing of the complaint and issuance of process thereon should not be delayed.

Rule 2.03 Complaint Forms

For all complaints charging an offense, the prosecuting attorney or such judge or judicial officer authorized by law to issue process pursuant to Rule 2.02 shall use an appropriate form authorized and supplied by the tribal court administrator or a word processor-produced complaint form in compliance with the supplied form and approved by the tribal court administrator. If for any reason such form is unavailable, failure to comply with this rule shall constitute harmless error under Rule 26.01.

RULE 3. WARRANT OR SUMMONS UPON COMPLAINT

Rule 3.01 Issuance

If it appears from the facts set forth in writing in the complaint and any supporting affidavits or supplemental sworn testimony that there is probable cause to believe that an offense has been committed and that the defendant committed it, a summons or warrant shall be issued. A summons shall be issued rather than a warrant unless it reasonably appears that there is a substantial likelihood that the defendant will fail to respond to a summons, or the defendant’s whereabouts is not reasonably discoverable, or the arrest of the defendant is necessary to prevent imminent harm to the defendant or another. If issued, a warrant for the arrest of the defendant shall be issued to any person authorized by law to execute it.

The warrant or summons shall be issued by a judge or judicial officer of the tribal court. Provided that when the offense is punishable by fine only, the clerk or deputy clerk of court may also issue the summons when authorized by court order.

When the offense is punishable by fine only, a summons shall be issued in lieu of a warrant.

The issuing officer shall issue a summons whenever requested to do so by the prosecuting attorney authorized to prosecute the offense charged in the complaint.

If a defendant fails to appear in response to a summons, a warrant shall issue.

Rule 3.02 Contents of Warrant or Summons

Subd. 1. Warrant. The warrant shall be signed by the issuing officer and shall contain the name of the defendant, or, if unknown, any name or description by which the defendant can be identified with reasonable certainty. It shall describe the offense charged in the complaint, or the warrant and complaint may be combined in one form. For all offenses, the amount of bail shall and other conditions of release may be set by the issuing officer and endorsed on the warrant.

Subd. 2. Directions of Warrant. The warrant shall direct that the defendant be brought promptly before the tribal court if it is in session. If the tribal court is not in session, the warrant shall direct that the defendant be brought before a judge or judicial officer of the tribal court, without unnecessary delay, and in any event not later than 36 hours after the arrest exclusive of the day of arrest, weekends and legal holidays, or as soon thereafter as such judge or judicial officer is available.

Subd. 3. Summons. The summons shall summon the defendant to appear at a stated time and place to answer the complaint before the tribal court and shall be accompanied by a copy of the complaint.

Rule 3.03 Execution or Service of Warrant or Summons; Certification

Subd. 1. By Whom. The warrant shall be executed by an officer authorized by law. The summons may be served by any officer authorized to serve a warrant, and if served by mail, it may also be served by the clerk of the tribal court.

Subd. 2. Territorial Limits. The warrant may be executed or the summons may be served at any place within the White Earth Reservation and where otherwise allowed.

Subd. 3. Manner. The warrant shall be executed by the arrest of the defendant. If the offense charged is a misdemeanor, the defendant shall not be arrested on Sunday or between the hours of 10:00 o’clock p.m. and 8:00 o’clock a.m. on any other day except by direction of the issuing officer, endorsed on the warrant when exigent circumstances exist or when the person named in the warrant is found on a public highway or street. The officer need not have the warrant in possession at the time of the arrest, but shall inform the defendant of the existence of the warrant and of the charge.

The summons shall be served on an individual defendant by delivering a copy to the defendant personally or by leaving it at the defendant’s house or usual place of abode with some person of suitable age and discretion then residing therein or by mailing it to the defendant’s last known address. A summons directed to a corporation shall be issued and served in the manner prescribed by law for service of a summons on corporations in civil actions or by mail addressed to the corporation at its principal place of business or to an agent designated by the corporation to receive service of process.

Subd. 4. Certification; Unexecuted Warrant or Summons. The officer executing the warrant shall certify the execution thereof to the tribal court.

On or before the date set for appearance the officer or clerk of court to whom a summons was delivered for service shall certify the service thereof to the tribal court.

At the request of the prosecuting attorney made at any time while the complaint is pending, a warrant returned unexecuted or a summons returned unserved or a duplicate thereof may be delivered by the issuing officer to any authorized officer or person for execution or service.

Rule 3.04 Defective Warrant, Summons or Complaint

Subd. 1. Amendment. A person arrested under a warrant or appearing in response to a summons shall not be discharged from custody or dismissed because of any defect in form in the warrant or summons, if the warrant or summons is amended so as to remedy the defect.

Subd. 2. Issuance of New Complaint, Warrant or Summons. During pretrial proceedings affecting any person arrested under a warrant or appearing in response to a summons issued upon a complaint, the proceedings may be continued to permit a new complaint to be filed and a new warrant or summons issued thereon, provided the prosecuting attorney promptly moves for such continuance on the ground:

(a) that the initial complaint does not properly name or describe the defendant or the offense charged; or

(b) that on the basis of the evidence presented at the proceeding it appears that there is probable cause to believe that the defendant has committed a different offense from that charged in the complaint and that the prosecuting attorney intends to charge the defendant with such offense.

If the proceedings are continued, the new complaint shall be filed and process issued thereon as soon as possible. In misdemeanor cases, if the defendant during the continuance is unable to post any bail which might be required under Rule 6.02, Subd. 1, then the defendant must be released subject to such non-monetary conditions as deemed necessary by the tribal court under that rule.

RULE 4. PROCEDURE UPON ARREST UNDER WARRANT
FOLLOWING A COMPLAINT OR WITHOUT A WARRANT

Rule 4.01 Arrest Under Warrant

A defendant arrested under a warrant issued upon a complaint shall be taken before the tribal court, judge or judicial officer as directed in the warrant.

Rule 4.02 Arrest Without a Warrant

Following an arrest without a warrant:

Subd. 1. Release by Arresting Officer. If the arresting officer or the officer’s superior determines that further detention is not justified, such officer or the officer’s superior shall immediately release the arrested person from custody.

Subd. 2. Citation. The arresting officer or the officer’s superior may issue a citation to and release the arrested person as provided by these rules, and must do so if ordered by the prosecuting attorney or by a judge or judicial officer of the tribal court or by any person designated by the tribal court to perform that function.

Subd. 3. Notice to Prosecuting Attorney. As soon as practical after the arrest, the arresting officer or the officer’s superior shall notify the prosecuting attorney of the arrest.

Subd. 4. Release by Prosecuting Attorney. The prosecuting attorney may order the arrested person released from custody.

Subd. 5. Appearance Before Judge or Judicial Officer

(1) Before Whom and When. An arrested person who is not released pursuant to this rule or Rule 6 shall be brought before the nearest available judge of the tribal court or a judicial officer of the tribal court. The defendant shall be brought before such judge or judicial officer without unnecessary delay, and in any event, not more than 36 hours after the arrest, exclusive of the day of arrest, Sundays, and legal holidays, or as soon thereafter as such judge or judicial officer is available. Provided, however, in misdemeanor cases, a defendant who is not brought before a judge or judicial officer within the 36-hour limit, shall be released upon citation as provided in Rule 6.01, Subd. 1.

(2) Complaint Filed; Order of Detention; Gross Misdemeanors Not Charged Under White Earth Band Motor Vehicles & Highways Code Sec. 1-6-26 (Driving While Under the Influence of Intoxicating Liquor or Drugs). At or before the time of the defendant’s appearance as required by Rule 4.02, Subd. 5(1), a complaint shall be presented to the judge or judicial officer authorized to issue criminal process upon the offense charged in the complaint. The complaint shall be filed forthwith except as provided by Rule 28.04 and an order for detention of the defendant may be issued, provided (1) the complaint contains the written approval of the prosecuting attorney or the certificate of the judge or judicial officer as provided by Rule 2.02; and (2) the judge or judicial officer determines from the facts set forth separately in writing or with the complaint and any supporting affidavits or supplemental sworn testimony that there is probable cause to believe that an offense has been committed and that defendant committed it. Otherwise, the defendant shall be discharged, the complaint and any supporting papers shall not be filed, and no record made of the proceedings.

(3) Complaint or Tab Charge; Misdemeanors; Gross Misdemeanors Charged Under White Earth Band Motor Vehicles & Highways Code Sec. 1-6-26 (Driving While Under the Influence of Intoxicating Liquor or Drugs). If there is no complaint made and filed by the time of the defendant’s first appearance in tribal court as required by this rule for a misdemeanor charge or a gross misdemeanor charge under White Earth Band Motor Vehicles & Highways Code Sec. 1-6-26 (Driving While Under the Influence of Intoxicating Liquor or Drugs), the clerk shall enter upon the records a brief statement of the offense charged including a citation of the statute, code, rule, regulation, ordinance or other provision of law which the defendant is alleged to have violated. This brief statement shall be a substitute for the complaint and is referred to as a tab charge in these rules. However, in a misdemeanor case, if the judge orders, or if requested by the person charged or defense counsel, a complaint shall be made and filed. If the defendant has not already pled guilty and a complaint has not been made and filed in a gross misdemeanor case charged under White Earth Band Motor Vehicles & Highways Code Sec. 1-6-26 (Driving Under the Influence of Intoxicating Liquor or Drugs), the complaint shall be made, served and filed within 48 hours of the defendant’s appearance on the tab charge if the defendant is in custody or within 10 days of the defendant’s appearance on the tab charge if the defendant is not in custody. Service of such a gross misdemeanor complaint shall be as provided by Rule 28.02 and may include service by U.S. mail. In a misdemeanor case, the complaint shall be made and filed within 48 hours after the demand therefor if defendant is in custody or within thirty (30) days of such demand if the defendant is not in custody. If no valid complaint has been made and filed within the time required by this rule, the defendant shall be discharged, the proposed complaint, if any, and any supporting papers shall not be filed, and no record shall be made of the proceedings. A complaint is valid when it (1) complies with the requirements of Rule 2, and (2) the judge has determined from the complaint and any supporting affidavits or supplemental sworn testimony that there is probable cause to believe that an offense has been committed and that the defendant committed it. Upon the filing of a valid complaint in a misdemeanor case, the defendant shall be arraigned. When a charge has been dismissed for failure to file a valid complaint and a valid complaint is thereafter filed, a warrant shall not be issued on that complaint unless a summons has been issued first and either could not be served, or, if served, the defendant failed to appear in response thereto.

Rule 4.03. Probable Cause Determination

Subd. 1. Time Limit. When a person arrested without a warrant is not earlier released pursuant to this rule or Rule 6, a judge or judicial officer shall make a probable cause determination without unnecessary delay and in any event within 48 hours from the time of the arrest including the day of arrest, Saturdays, Sundays and legal holidays. If the tribal court determines that probable cause does not exist or if there is no determination as to probable cause within the time as provided by this rule, the person shall be released immediately.

Subd. 2. Application and Record. The facts establishing probable cause to believe that an offense has been committed and that the person arrested committed it shall be submitted upon oath either orally or in writing. The oath shall be administered by the judge or judicial officer for any facts submitted orally and may also be administered by the clerk or deputy clerk of court or a notary public for any facts submitted in writing. Any oral testimony shall be recorded by reporter or recording instrument and shall be retained by the judge or judicial officer or by the judge’s or judicial officer’s designee. Any written or oral facts or other information submitted upon oath to establish probable cause may be made or taken by telephone, facsimile transmission, video equipment or similar device at the discretion of the reviewing judge or judicial officer. The person requesting a probable cause determination shall advise the reviewing judge or judicial officer of any prior request for a probable cause determination on this same incident or of any prior release of the arrested person on this same incident for failure to obtain a probable cause determination within the time limit as provided by this rule.

Subd. 3. Prosecuting Attorney. No request for determination of probable cause may proceed without the approval, in writing or orally on the record, of the prosecuting attorney authorized to prosecute the matter involved, or by affirmation of the applicant upon the application that the applicant has contacted the prosecuting attorney and the prosecuting attorney has approved the request, or unless the judge or judicial officer reviewing probable cause certifies in writing that the prosecuting attorney is unavailable and the determination of probable cause should not be delayed. If, in the discretion of the prosecuting attorney, a complaint complying with Rule 2 is obtained within the time limit provided by this rule, it shall not be necessary to obtain any further determination of probable cause under this rule to justify continued detention of the defendant.

Subd. 4. Determination. Upon the information presented, the tribal court shall determine whether there is probable cause to believe that an offense has been committed and that the person arrested committed the offense. If probable cause is found, the tribal court may set bail or other conditions of release or release the arrested person without bail pursuant to Rule 6. If probable cause is not found, the arrested person shall be released immediately. The determination of the tribal court shall be in writing and shall indicate whether probable cause was found, and, if so, for what offense, whether oral testimony was received concerning probable cause, and the amount of any bail or other conditions of release which the tribal court may have set. A written notice of the tribal court’s determination shall be provided to the arrested person forthwith.

RULE 5. PROCEDURE ON FIRST APPEARANCE

Rule 5.01. Statement to the Defendant

A defendant arrested with or without a warrant or served with a summons or citation appearing initially before a judge or judicial officer shall be advised of the nature of the charge. The tribal court shall first determine whether the defendant is handicapped in communication. A defendant is handicapped in communication if, (a) because of either a hearing, speech or other communications disorder, or (b) because of difficulty in speaking or comprehending the English language, the defendant cannot fully understand the proceedings or any charges made against the defendant or is incapable of presenting or assisting in the presentation of a defense. If a defendant is handicapped in communication, the judge or judicial officer shall appoint a qualified interpreter to assist the defendant throughout the proceedings. The proceedings at which a qualified interpreter is required are all those covered by the rules which are attended by the defendant. A defendant who has not previously received a copy of the complaint, if any, and supporting affidavits and the transcription of any supplementary testimony, shall be provided with copies thereof. Upon motion of the prosecuting attorney, the court shall require that the defendant be booked, photographed, and fingerprinted. In cases of gross misdemeanors, the defendant shall not be called upon to plead.

The judge, judicial officer, or other duly authorized personnel shall advise the defendant substantially as follows:

(a) that the defendant is not required to say anything or submit to interrogation and that anything the defendant says may be used against the defendant in this or any subsequent proceeding;

(b) that the defendant has a right to counsel in all subsequent proceedings, including police line-ups and interrogations, and if the defendant appears without counsel and is financially unable to afford counsel, that counsel will forthwith be appointed without cost to the defendant charged with an offense punishable upon conviction by incarceration;

(c) that the defendant has a right to communicate with defense counsel and that a continuance will be granted if necessary to enable defendant to obtain or speak to counsel;

(d) that the defendant has a right to a jury trial or a trial to the court;

(e) that if the offense is a misdemeanor, the defendant may either plead guilty or not guilty, or demand a complaint prior to entering a plea;

(f) that if the offense is a gross misdemeanor punishable under White Earth Band Motor Vehicles & Highways Code Sec. 1-6-26 (Driving While Under the Influence of Intoxicating Liquor or Drugs) and a complaint has not yet been made and filed, a complaint must be issued within 10 days if the defendant is not in custody or within 48 hours if the defendant is in custody.

The judge, judicial officer, or other duly authorized personnel may advise a number of defendants at once of these rights, but each defendant shall be asked individually before arraignment whether the defendant heard and understood these rights as explained earlier.

Rule 5.02. Appointment of Counsel

Subd. 1. Gross Misdemeanors. If the defendant is not represented by counsel and is financially unable to afford counsel, the judge or judicial officer shall appoint counsel for the defendant.

Subd. 2. Misdemeanors. Unless the defendant charged with a misdemeanor punishable upon conviction by incarceration voluntarily waives counsel in writing or on the record, the tribal court shall appoint counsel for the defendant who appears without counsel and is financially unable to afford counsel. The tribal court shall not accept the waiver unless the tribal court is satisfied that it is voluntary and has been made by the defendant with full knowledge and understanding of the defendant’s rights. If the tribal court is not so satisfied, it shall not proceed until the defendant is provided with counsel of either the defendant’s choosing or by assignment.

Notwithstanding the waiver, the tribal court may designate counsel to be available to assist and to consult with a defendant who cannot afford counsel at all stages of the proceedings.

A defendant who proceeds at the arraignment without counsel does not waive the future right to counsel and the tribal court must inform the defendant that the defendant continues to have that right at all stages of the proceeding. Provided that for misdemeanor offenses not punishable upon conviction by incarceration, the tribal court may appoint an attorney for a defendant financially unable to afford counsel when requested by the defendant or interested counsel or when such appointment appears advisable to the tribal court in the interests of justice to the parties.

Subd. 3. Standard of Indigency. A defendant is financially unable to obtain counsel if financially unable to obtain adequate representation without substantial hardship for the defendant or the defendant’s family.

Subd. 4. Financial Inquiry. An inquiry to determine financial eligibility of a defendant for the appointment of counsel shall be made whenever possible prior to the court appearance and by such persons as the tribal court may direct. This inquiry may be combined with the pre-release investigation provided for in Rule 6.02, Subd. 3.

Subd. 5. Partial Eligibility and Reimbursement. The ability to pay part of the cost of adequate representation at any time while the charges are pending against a defendant shall not preclude the appointment of counsel for the defendant. The tribal court may require a defendant, to the extent able, to compensate the governmental unit charged with paying the expense of appointed counsel.

Rule 5.03. Date of Rule 8 Appearance in Tribal Court; Consolidation of Appearances Under Rule 5 and Rule 8

If the defendant is charged with a gross misdemeanor and has not waived the right to a separate appearance under Rule 8 as provided in this rule, the judge or judicial officer shall set a date for such appearance before the tribal court in accordance with a schedule or other directive established by order of the tribal court, which appearance date shall not be later than fourteen (14) days after the defendant’s initial appearance before such judge or judicial officer under Rule 5.

The defendant shall be informed of the time and place of such appearance and ordered to appear as scheduled. The time for appearance may be extended by the tribal court for good cause.

Notwithstanding any rule to the contrary, in gross misdemeanor cases, the defendant may be permitted to waive the separate appearance otherwise required by this rule and Rule 8. Any such waiver shall be made either in writing or orally on the record in open court. If a separate appearance under Rule 8 is waived by the defendant, all of the functions and procedures provided for by both Rule 5 and Rule 8 shall take place at the one consolidated appearance.

Rule 5.04. Plea in Misdemeanor Cases

Subd. 1. Entry of Plea. When a valid complaint has been made and filed, or a brief statement entered on the record as authorized under Rule 4.02, Subd. 5(3), the defendant shall be called upon to plead or be given time to plead. The arraignment shall be conducted in open court. A defendant may appear by counsel and a corporation shall appear by counsel or by a duly authorized officer.

Subd. 2. Guilty Plea. If the defendant enters a plea of guilty, the presentencing and sentencing procedure provided by these rules shall be followed.

Subd. 3. Not Guilty Plea and Jury Trial. If the defendant enters a plea of not guilty to a charge on which entitled to a jury trial, the defendant shall be asked to exercise or waive that right. The defendant may waive jury trial either personally in writing or orally on the record in open court. If the defendant fails to waive or demand a jury trial, a jury trial demand shall be entered in the record.

Subd. 4. Demand or Waiver of Evidentiary Hearing. If the defendant pleads not guilty and a notice of evidence and identification procedures has been given by the prosecution as required by Rule 7.01, the defendant and the prosecution shall each either waive or demand an evidentiary hearing as provided by Rule 12.04. Such demand or waiver may be made either orally on the record or in writing and shall be made at the first court appearance after the notice has been given by the prosecution.

Subd. 5. Special Appearances Abolished. Special appearances are abolished and any challenge to the personal jurisdiction of the tribal court shall be decided as provided in Rule 10.02.

Rule 5.05. Bail or Release

The judge or judicial officer shall set and advise the defendant of the conditions under which the defendant may be released under these rules for appearance.

Rule 5.06. Record

Minutes of the proceedings shall be kept unless the judge or judicial officer directs that a verbatim record thereof shall be made, and provided that any plea of guilty to an offense punishable by incarceration shall comply with the requirements of Rule 13.05 and Rule 15.09.

RULE 6. PRE-TRIAL RELEASE

Rule 6.01 Release on Citation by Law Enforcement Officer Acting Without Warrant

Subd. 1. Mandatory Issuance of Citation.

(1) For Misdemeanors.

(a) By Arresting Officers. Law enforcement officers acting without a warrant, who have decided to proceed with prosecution, shall issue citations to persons subject to lawful arrest for misdemeanors, unless it reasonably appears to the officer that arrest or detention is necessary to prevent bodily harm to the accused or another or further criminal conduct, or that there is a substantial likelihood that the accused will fail to respond to a citation. The citation may be issued in lieu of an arrest, or if an arrest has been made, in lieu of continued detention. If the defendant is detained, the officer shall report to the tribal court the reasons for the detention. Ordinarily, for misdemeanors not punishable by incarceration, a citation shall be issued.

(b) At Place of Detention. When a person is arrested without a warrant for a misdemeanor or misdemeanors and is brought to a police station or jail, the officer in charge of the police station or jail shall issue a citation in lieu of continued detention unless it reasonably appears to the officer that detention is necessary to prevent bodily harm to the accused or another or further criminal conduct or that there is a substantial likelihood that the accused will fail to respond to a citation. If the defendant is detained, the officer in charge shall report to the tribal court the reasons for the detention. Provided, however, that for misdemeanors not punishable by incarceration, a citation shall be issued.

(2) For Misdemeanors and Gross Misdemeanors When Ordered by Prosecuting Attorney or Judge. An arresting officer acting without a warrant or the officer in charge of a police station or other authorized place of detention to which a person arrested without a warrant has been brought shall issue a citation in lieu of continued detention if so ordered by the prosecuting attorney or by the judge of tribal court or by any person designated by the tribal court to perform that function.

Subd. 2. Permissive Authority to Issue Citations for Gross Misdemeanors. When a law enforcement officer acting without a warrant is entitled to make an arrest for a gross misdemeanor or a person arrested without a warrant for a gross misdemeanor is brought to a police station or jail, the officer in charge of the police station or jail may issue a citation in lieu of arrest or in lieu of continued detention if an arrest has been made, unless it reasonably appears to the officer that arrest or detention is necessary to prevent bodily harm to the accused or another or further criminal conduct or that the accused may fail to appear in response to the citation.

Subd. 3. Form of Citation. A citation shall direct the accused to appear before the tribal court at a specified time and place or contact the court to schedule an appearance. The citation shall state that if the defendant fails to appear at or contact the tribal court as directed in response to the citation, a warrant of arrest may issue. A summons or warrant issued because of a defendant’s failure to respond to a citation may be based upon sworn facts establishing probable cause as set forth in or with the citation and attached to the complaint.

Subd. 4. Lawful Searches. The issuance of a citation does not affect a law enforcement officer’s authority to conduct an otherwise lawful search.

Subd. 5. Persons in Need of Care. Notwithstanding the issuance of a citation, a law enforcement officer may take the cited person to an appropriate medical facility if that person appears mentally or physically incapable of self care.

Rule 6.02. Release by Judge, Judicial Officer or Court

Subd. 1. Conditions of Release. Any person charged with an offense shall be released without bail pending the first court appearance when ordered by the prosecuting attorney, the judge of tribal court, or by any person designated by the tribal court to perform that function. Upon appearance before a judge, judicial officer, or the tribal court, a person so charged shall be ordered released pending trial or hearing on personal recognizance or on order to appear or upon the execution of an unsecured appearance bond in a specified amount, unless the tribal court, judge or judicial officer determines, in the exercise of discretion, that such a release will be inimical of public safety or will not reasonably assure the appearance of the person as required. When such a determination is made, the tribal court, judge or judicial officer shall, either in lieu of or in addition to the above methods of release, impose the first of the following conditions of release which will reasonably assure the appearance of the person for trial or hearing, or when otherwise required, or, if no single condition gives that assurance, any combination of the following conditions:

(a) place the person in the care and supervision of a designated person or organization agreeing to supervise the person;

(b) place restrictions on the travel, association or place of abode during the period of release;

(c) require the execution of an appearance bond in an amount set by the tribal court with sufficient solvent sureties, or the deposit of cash or other sufficient security in lieu thereof; or

(d) impose any other condition deemed reasonably necessary to assure appearance as required, including a condition requiring that the person return to custody after specified hours.

In any event, the tribal court shall also fix the amount of money bail without other conditions upon which the defendant may obtain release.

The defendant’s release shall be conditioned on appearance at trial or hearing, including the omnibus hearing, evidentiary hearing and the pretrial conference prescribed by these rules, or at the taking of any deposition that may be ordered by the tribal court.

Subd. 2. Determining Factors. In determining which conditions of release will reasonably assure such appearance, the judge, judicial officer or tribal court shall on the basis of available information, take into account the nature and circumstances of the offense charged, the weight of the evidence against the accused, the accused’s family ties, employment, financial resources, character and mental condition, length of residence in the community, record of convictions, record of appearance at court proceedings or flight to avoid prosecution, and the safety of any other person or of the community.

Subd. 3. Pre-Release Investigation. In order to acquire the information required for determining the conditions of release, an investigation into the accused’s background may be made prior to or contemporaneously with the defendant’s appearance before the tribal court, judge or judicial officer. The tribal court’s probation service or other qualified facility available to the court may be directed to conduct the investigation. Any information obtained from the defendant in response to the inquiry during the course of the investigation and any evidence derived from such information shall not be used against the defendant at trial. This shall not preclude the use of evidence obtained by other independent investigation.

Subd. 4. Review of Conditions of Release. Upon motion, the tribal court shall review the conditions of release.

Rule 6.03 Violation of Conditions of Release

Subd. 1. Warrant. Upon an application of the prosecuting attorney alleging that a defendant has violated the conditions of release, the judge or judicial officer of the tribal court may issue a warrant directing that the defendant be arrested and taken forthwith before such judge or judicial officer of the tribal court. A summons directing the defendant to appear before such judge or judicial officer of the tribal court at a specified time shall be issued instead of a warrant unless it reasonably appears that there is a substantial likelihood that the defendant will fail to respond to the summons or when the whereabouts of the defendant is unknown.

Subd. 2. Arrest Without Warrant. A law enforcement officer having probable cause to believe that a released defendant has violated the conditions of release may, if it is impracticable to secure a warrant or summons as provided in this rule, arrest the defendant and take the defendant forthwith before such judge or judicial officer of the tribal court. In a misdemeanor case, a citation shall be issued in lieu of an arrest or continued detention unless it reasonably appears that the arrest or detention is necessary to prevent bodily harm to the accused or another or to prevent further criminal conduct, or that there is a substantial likelihood that the defendant will fail to respond to the citation.

Subd. 3. Hearing. After hearing and upon finding that the defendant has violated conditions imposed on release, the judge or judicial officer of the tribal court shall continue the release upon the same conditions or impose different or additional conditions for defendant’s possible release as provided for in Rule 6.02, Subd. 1.

Subd. 4. Commission of Crime. When it is shown that a complaint has been filed charging a defendant with the commission of a crime while released pending adjudication in tribal court of a prior charge, the tribal court may, after notice and hearing, review and revise the conditions of possible release as provided for in Rule 6.02, Subd. 1.

Rule 6.04 Forfeiture

The procedure for forfeiture of an appearance bond shall be as follows:

When a person in a criminal prosecution is under bond to appear and answer and fails to perform the conditions of the bond, the law enforcement authorities shall apprehend that person in the manner provided in Rule 6.03 of these rules. After default on a bond, a surety may, with permission of the court, pay to the court administrator the amount for which the surety was bound as surety, with costs as the court may direct. When payment is made, the surety is fully discharged of any obligation under the bond. The court may forgive or reduce the bond forfeiture according to the circumstances of the case and the situation of the party on any terms and conditions it considers just and reasonable.

Rule 6.05 Supervision of Detention

The tribal court shall exercise supervision over the detention of defendants within the tribal court’s jurisdiction for the purpose of eliminating all unnecessary detention. The officer in charge of a detention facility shall make at least biweekly reports to the prosecuting attorney and to the tribal court listing each defendant who has been held in custody pending criminal charges, arraignment, trial, sentencing, or revocation of probation for a period in excess of ten (10) days in gross misdemeanor cases, and in excess of two (2) days in misdemeanor cases.

Rule 6.06 Trial Date in Misdemeanor Cases

A defendant shall be tried as soon as possible after entry of a not guilty plea. On demand made in writing or orally on the record by the prosecuting attorney or the defendant, the trial shall be commenced within sixty (60) days from the date of the demand unless good cause is shown upon the prosecuting attorney’s or the defendant’s motion or upon the tribal court’s initiative why the defendant should not be brought to trial within that period. The time period shall not begin to run earlier than the date of the not guilty plea. Where the defendant is in custody, trial shall be commenced within ten (10) days of demand and if not so commenced, the defendant shall be released subject to such non-monetary release conditions as may be required by the tribal court under Rule 6.02, Subd. 1.

RULE 7. NOTICE BY PROSECUTING ATTORNEY OF EVIDENCE AND IDENTIFICATION PROCEDURES; COMPLETION OF DISCOVERY

Rule 7.01 Notice of Evidence and Identification Procedures

In any case where a jury trial is to be held, when the prosecution has (1) any evidence against the defendant obtained as a result of a search, search and seizure, wiretapping, or any form of electronic or mechanical eavesdropping; (2) any confessions, admissions or statements in the nature of confessions made by the defendant; (3) any evidence against the defendant discovered as a result of confessions, admissions or statements in the nature of confessions made by the defendant; or (4) when in the investigation of the case against the defendant, any identification procedures were followed, including but not limited to lineups or other observations of the defendant and the exhibition of photographs of the defendant or of any other persons, the prosecuting attorney shall notify the defendant or defense counsel of such evidence and identification procedures. In gross misdemeanor cases notice shall be given in writing on or before the date set for the defendant’s initial appearance in the tribal court as provided by Rule 5.03. In misdemeanor cases, notice shall be given either in writing or orally on the record in tribal court on or before the date set for the defendant’s pretrial conference if one is scheduled or seven (7) days before trial if no pretrial conference is to be held.

Such written notice may be given either personally or by ordinary mail to the defendant’s or defense counsel’s last known residential or business address or by leaving it at such address with a person of suitable age and discretion then residing or working there.

Rule 7.02 Notice of Additional Offenses

The prosecuting attorney shall notify the defendant or defense counsel in writing of any additional offenses, the evidence of which may be offered at the trial under any exceptions to the general exclusionary rule. In cases of gross misdemeanors, the notice shall be given at or before the omnibus hearing under Rule 11 or as soon after the omnibus hearing as the offenses become known to the prosecuting attorney. In misdemeanor cases, the notice shall be given at or before the pretrial conference under Rule 12 if held or as soon thereafter as the offense becomes known to the prosecuting attorney. If no pretrial conference is held, then the notice shall be given at least seven (7) days before trial or as soon thereafter as known to the prosecuting attorney. Such additional offenses shall be described with sufficient particularity to enable the defendant to prepare for trial. The notice need not include offenses for which the defendant has been previously prosecuted or those that may be offered in rebuttal of the defendant’s character witnesses or as a part of the occurrence or episode out of which the offense charged against defendant arose.

Rule 7.03 Completion of Discovery

Before the date set for the omnibus hearing in gross misdemeanor cases, the prosecution and defendant shall complete the discovery that is required by Rule 9.01 and Rule 9.02 to be made without the necessity of an order of the tribal court.

In misdemeanor cases, without order of the tribal court the prosecuting attorney on request of the defendant or defense counsel shall, prior to arraignment or at any time before trial, permit the defendant or defense counsel to inspect the police investigatory reports. Any other discovery shall be by consent of the parties or by motion to the tribal court.

RULE 8. DEFENDANT’S INITIAL APPEARANCE BEFORE THE TRIBAL COURT FOLLOWING THE COMPLAINT OR TAB CHARGE IN GROSS MISDEMEANOR CASES

Rule 8.01 Place of Appearance and Arraignment

The defendant’s initial appearance following the complaint or, for a gross misdemeanor under White Earth Band Motor Vehicles & Highways Code Sec. 1-6-26 (Driving While Under the Influence of Intoxicating Liquor or Drugs), a tab charge under this rule shall be held in the tribal court.

The defendant shall be arraigned upon the complaint or the complaint as it may be amended or, for gross misdemeanors under White Earth Band Motor Vehicles & Highways Code Sec. 1-6-26 (Driving While Under the Influence of Intoxicating Liquor or Drugs), the tab charge, but may only enter a plea of guilty at that time. If the defendant does not wish to plead guilty, no other plea shall be called for and the arraignment shall be continued until the omnibus hearing when pursuant to Rule 11.09 the defendant shall plead to the complaint or the complaint as amended or be given additional time within which to plead.

Rule 8.02 Plea of Guilty

At an initial appearance under this rule, the defendant may enter a plea of guilty to a gross misdemeanor or misdemeanor as permitted under Rule 15. If the defendant enters a plea of guilty, the pre-sentencing and sentencing procedures provided by these rules shall be followed.

Rule 8.03 Demand or Waiver of Hearing

If the defendant does not plead guilty, the defendant and the prosecution shall each either waive or demand a hearing as provided by Rule 11.02 on the admissibility at trial of any of the evidence specified in the notice given by the prosecuting attorney under Rule 7.01 or the admissibility of any evidence obtained as the result of such evidence.

Rule 8.04 Plea and Time and Place of Omnibus Hearing

(a) If the defendant does not plead guilty, the omnibus hearing on the issues as provided for by Rules 11.03 and 11.04 shall be held within the time hereinafter specified.

(b) If hearing on either of the issues set forth in Rule 8.03 is demanded, the omnibus hearing shall also include the issues provided for by Rule 11.02.

(c) The omnibus hearing provided for by Rule 11 shall be scheduled for a date not later than twenty-eight (28) days after the defendant’s appearance before the tribal court under this rule. The tribal court may extend such time for good cause related to the particular case upon motion of the prosecuting attorney or defendant or upon the court’s initiative.

Rule 8.05 Record

A verbatim record shall be made of the proceedings at the defendant’s initial appearance before the tribal court under this rule.

Rule 8.06 Conditions of Release

In accordance with the rules governing bail or release, the tribal court may continue or amend those conditions for defendant’s release set by the tribal court previously.

RULE 9. DISCOVERY IN GROSS MISDEMEANOR CASES

Rule 9.01 Disclosure by Prosecution

Subd. 1. Disclosure by Prosecution Without Order of Tribal Court. Without order of the tribal court and except as provided in Rule 9.01, Subd. 3, the prosecuting attorney on request of defense counsel shall, before the date set for omnibus hearing provided for by Rule 11, allow access at any reasonable time to all matters within the prosecuting attorney’s possession or control which relate to the case and make the following disclosures:

(1) Trial Witnesses; Other Persons.

(a) The prosecuting attorney shall disclose to defense counsel the names and addresses of the persons intended to be called as witnesses at the trial together with their prior record of convictions, if any, within the prosecuting attorney’s actual knowledge. The prosecuting attorney shall permit defense counsel to inspect and reproduce such witnesses’ relevant written or recorded statements and any written summaries within the prosecuting attorney’s knowledge of the substance of relevant oral statements made by such witnesses to prosecution agents.

(b) The fact that prosecution has supplied the name of a trial witness to defense counsel shall not be commented on in the presence of the jury.

(c) The prosecuting attorney shall disclose to defense counsel the names and the addresses of persons having information relating to the case.

(2) Statements. The prosecuting attorney shall disclose and permit defense counsel to inspect and reproduce any relevant written or recorded statements which relate to the case within the possession or control of the prosecution, the existence of which is known by the prosecuting attorney, and shall provide defense counsel with the substance of any oral statements which relate to the case.

(3) Documents and Tangible Objects. The prosecuting attorney shall disclose and permit defense counsel to inspect and reproduce books, transcripts, law enforcement officer reports, reports on prospective jurors, papers, documents, photographs and tangible objects which relate to the case and the prosecuting attorney shall also permit defense counsel to inspect and photograph buildings or places which relate to the case.

(4) Reports of Examinations and Tests. The prosecuting attorney shall disclose and permit defense counsel to inspect and reproduce any results or reports of physical or mental examinations, scientific tests, experiments or comparisons made in connection with the particular case. The prosecuting attorney shall allow the defendant to have reasonable tests made. If a scientific test or experiment of any matter, except those conducted under White Earth Band Motor Vehicles & Highways Code, may preclude any further tests or experiments, the prosecuting attorney shall give the defendant reasonable notice and an opportunity to have a qualified expert observe the test or experiment.

(5) Criminal Record of Defendant and Defense Witnesses. The prosecuting attorney shall inform defense counsel of the records of prior convictions of the defendant and of any defense witnesses disclosed under Rule 9.02, Subd. 1(3)(a) that are known to the prosecuting attorney provided the defense counsel informs the prosecuting attorney of any such records known to the defendant.

(6) Exculpatory Information. The prosecuting attorney shall disclose to defense counsel any material or information within the prosecuting attorney’s possession and control that tends to negate or reduce the guilt of the accused as to the offense charged.

(7) Scope of Prosecutor’s Obligations. The prosecuting attorney’s obligations under this rule extend to material and information in the possession or control of members of the prosecution staff and of any others who have participated in the investigation or evaluation of the case and who either regularly report or with reference to the particular case have reported to the prosecuting attorney’s office.

Subd. 2. Discretionary Disclosure Upon Order of Court.

(1) Matters Possessed by Other Governmental Agencies. Upon motion of the defendant, the tribal court for good cause shown shall require the prosecuting attorney, except as provided by Rule 9.01, Subd. 3, to assist the defendant in seeking access to specified matters relating to the case which are within the possession or control of an official or employee of any tribal governmental agency, but which are not within the control of the prosecuting attorney. The prosecuting attorney shall use diligent good faith efforts to cause the official or employee to allow the defendant access at any reasonable time and in any reasonable manner to inspect, photograph, copy, or have reasonable tests made.

(2) Nontestimonial Evidence from Defendant on Defendant’s Motion. Upon motion of the defendant who has been arrested, cited or charged under these rules, the tribal court for good cause shown may require the prosecuting attorney to provide for defendant to participate in a lineup, to speak for identification by witnesses or to participate in other procedures which would require a court order to accomplish.

(3) Other Relevant Material. Upon motion of the defendant, the trial court at any time before trial may, in its discretion, require the prosecuting attorney to disclose to defense counsel and to permit the inspection, reproduction or testing of any relevant material and information not subject to disclosure without order of court under Rule 9.01, Subd. 1, provided, however, a showing is made that the information may relate to the guilt or innocence of the defendant or negate the guilt or reduce the culpability of the defendant as to the offense charged. If the motion is denied, the tribal court upon application of the defendant shall inspect and preserve any such relevant material and information.

Subd. 3. Information Non-Discoverable. The following information shall not be discoverable by the defendant:

(1) Work Product.

(a) Opinions, Theories or Conclusions. Unless otherwise provided by these rules, legal research, records, correspondence, reports or memoranda to the extent that they contain the opinions, theories or conclusions of the prosecuting attorney or members of the prosecution staff or officials or official agencies participating in the prosecution.

(b) Reports. Except as provided in Rules 9.01, Subd. 1(1) to (6), reports, memoranda or internal documents made by the prosecuting attorney or members of the prosecution staff or by prosecution agents in connection with the investigation or prosecution of the case against the defendant.

(2) Prosecution Witnesses Under Prosecuting Attorney’s Certificate. The information relative to the witnesses and persons described in Rule 9.01, Subd. 1(1) and 1(2) shall not be subject to disclosure if the prosecuting attorney files a written certificate with the trial court that to do so may endanger the integrity of a continuing investigation or subject such witnesses or persons or others to physical harm or coercion, provided, however, that non-disclosure under this rule shall not extend beyond the time the witnesses or persons are sworn to testify at the trial.

Rule 9.02. Disclosure by Defendant.

Subd. 1. Information Subject to Discovery Without Order of Court. Without order of the tribal court, the defendant on request of the prosecuting attorney shall, before the date set for the omnibus hearing provided for by Rule 11, make the following disclosures:

(1) Documents and Tangible Objects. The defendant shall disclose and permit the prosecuting attorney to inspect and reproduce books, papers, documents, photographs, and tangible objects which the defendant intends to introduce in evidence at the trial or concerning which the defendant intends to offer evidence at the trial, and shall also permit the prosecuting attorney to inspect and reproduce reports on prospective jurors and to inspect and photograph buildings or places concerning which the defendant intends to offer evidence at trial.

(2) Reports of Examinations and Tests. The defendant shall disclose and permit the prosecuting attorney to inspect and reproduce any results or reports of physical or mental examinations, scientific tests, experiments and comparisons made in connection with the particular case within the possession or control of the defendant which the defendant intends to introduce in evidence at the trial or which were prepared by a witness whom the defendant intends to call at the trial when the results or reports relate to testimony of the witness.

(3) Notice of Defense and Defense Witnesses and Criminal Record.

(a) Notice of Defense. The defendant shall inform the prosecuting attorney in writing of any defense, other than that of not guilty, on which the defendant intends to rely at the trial, including but not limited to the defense of self-defense, entrapment, mental illness or deficiency, duress, alibi, double jeopardy, statute of limitations, collateral estoppel, or intoxication. The defendant shall supply the prosecuting attorney with the names and addresses of persons whom the defendant intends to call as witnesses at the trial together with their record of convictions, if any, within the defendant’s actual knowledge.

A defendant who gives notice of intent to rely on the defense of mental illness or mental deficiency shall also notify the prosecuting attorney of any intent to additionally rely on the defense of not guilty.

(b) Statements of Defense and Prosecution Witnesses. The defendant shall permit the prosecuting attorney to inspect and reproduce any relevant written or recorded statements of the persons whom the defendant intends to call as witnesses at the trial and also statements of prosecution witnesses obtained by the defendant, defense counsel, or persons participating in the defense, and which are within the possession or control of the defendant and shall permit the prosecuting attorney to inspect and reproduce any written summaries within the defendant’s knowledge of the substance of any oral statements made by such witnesses to defense counsel or obtained by the defendant at the direction of defense counsel.

(c) Alibi. If the defendant intends to offer evidence of an alibi, the defendant shall also inform the prosecuting attorney of the specific place or places where the defendant contends to have been when the alleged offense occurred and shall inform the prosecuting attorney of the names and addresses of the witnesses the defendant intends to call at the trial in support of the alibi.

As soon as practicable, the prosecuting attorney shall then inform the defendant of the names and addresses of the witnesses the prosecuting attorney intends to call at the trial to rebut the testimony of any of the defendant’s alibi witnesses.

(d) Criminal Record. Defense counsel shall inform the prosecuting attorney of any prior convictions of the defendant provided the prosecuting attorney informs defense counsel of the record of prior convictions known to the prosecuting attorney.

(e) Entrapment. A defendant who gives notice of intention to rely on the defense of entrapment, shall include in the notice a statement of the facts forming the basis for the defense, and elect whether to have the defense submitted to the tribal court or to the jury.

The entrapment defense may not be submitted to the tribal court unless the defendant waives jury trial upon that issue as provided by Rule 22.01, Subd. 1(2).

If the entrapment defense is submitted to the tribal court, the hearing thereon shall be included in the omnibus hearing under Rule 11 or in the evidentiary hearing provided for by Rule 12. The tribal court shall make findings of fact and conclusions of law on the record supporting its decision.

Subd. 2. Discovery Upon Order of Court.

(1) Disclosures Permitted. Upon motion of the prosecuting attorney with notice to defense counsel and a showing that one or more of the discovery procedures hereafter described will be of material aid in determining whether the defendant committed the offense charged, the trial court at any time before trial may, subject to constitutional limitations, order a defendant to:

(a) Appear in a lineup;

(b) Speak for identification by witnesses to an offense or for the purpose of taking voice prints;

(c) Be fingerprinted or permit the defendant’s palm prints or footprints to be taken;

(d) Permit measurements of the defendant’s body to be taken;

(e) Pose for photographs not involving re-enactment of a scene;

(f) Permit the taking of samples of the defendant’s blood, hair, saliva, urine, and other materials of the defendant’s body which involve no unreasonable intrusion thereof; provided, however, that the tribal court shall not permit a blood test to be taken except upon a showing of probable cause to believe that the test will aid in establishing the guilt of the defendant;

(g) Provide specimens of the defendant’s handwriting; and

(h) Submit to reasonable physical or medical inspection of the defendant’s body.

(2) Notice of Time and Place of Disclosures. Whenever the personal appearance of the defendant is required for the foregoing purposes, reasonable notice of the time and place thereof shall be given by the prosecuting attorney to defense counsel.

(3) Medical Supervision. Blood tests shall be conducted under medical supervision, and the tribal court may require medical supervision for any other test ordered pursuant to this rule when the tribal court deems such supervision necessary. Upon motion of the defendant, the tribal court may order the defendant’s appearance delayed for a reasonable time or may order that it take place at the defendant’s residence, or some other convenient place.

(4) Notice of Results of Disclosure. Unless otherwise ordered by the tribal court, the prosecuting attorney, within five (5) days from the date the results of the discovery procedures provided by this rule become known, shall make available to defense counsel a report of the results.

(5) Other Methods Not Excluded. The discovery procedures provided for by this rule do not exclude other lawful methods available for obtaining the evidence discoverable under the rule.

Subd. 3. Information Not Subject to Disclosure by Defendant; Work Product. Unless otherwise provided by these rules, legal research, records, correspondence, reports or memoranda to the extent they contain the opinions, theories, or conclusions of the defendant or defense counsel or persons participating in the defense are not subject to disclosure.

Subd. 4. Failure to Call Witness. The fact that a witness’ name is on a list furnished by defendant to the prosecution under this rule shall not be commented on in the presence of the jury.

Rule 9.03 Regulation of Discovery

Subd. 1. Investigations Not to be Impeded. Except as otherwise provided as to matters not subject to discovery or covered by protective orders, neither the counsel for the parties nor other prosecution or defense personnel shall advise persons having relevant material or information (except the accused) to refrain from discussing the case with opposing counsel or from showing opposing counsel any relevant materials, nor shall they otherwise impede opposing counsel’s investigation of the case.

Subd. 2. Continuing Duty to Disclose.

(a) If subsequent to compliance with any discovery rule or order, a party discovers additional material, information or witnesses subject to disclosure, that party shall promptly notify the other party of the existence of the additional material or information and the identity of the witnesses.

(b) Each party shall have a continuing duty at all times before and during trial to supply the materials and information required by these rules.

Subd. 3. Time, Place and Manner of Discovery and Inspection. An order of the tribal court granting discovery shall specify the time, place and manner of making the discovery and inspection permitted and may prescribe such terms and conditions as are just.

Subd. 4. Custody of Materials. Any materials furnished to an attorney under discovery rules or orders shall remain in the custody of and be used by the attorney only for the purpose of conducting that attorney’s side of the case, and shall be subject to such other terms and conditions as the tribal court may prescribe.

Subd. 5. Protective Orders. Upon a showing of cause, the trial court may at any time order that specified disclosures be restricted or deferred, or make such other order as is appropriate. All material and information to which a party is entitled must be disclosed in time to afford counsel the opportunity to make beneficial use of it.

Subd. 6. In Camera Proceedings. Upon application of any party with notice to the adverse party, the trial court upon a showing of good cause therefor may permit any showing of cause for denial or regulation of discovery, or portion of such showing, to be made in camera. A record shall be made of the proceedings. If the tribal court enters an order granting relief following a showing in camera, the entire record of such showing shall be sealed and preserved in the records of the tribal court, to be made available to the reviewing court in the event of an appeal or habeas corpus proceedings.

Subd. 7. Excision. When some parts of certain material are discoverable under these rules, and other parts not discoverable, as much of the material shall be disclosed as is consistent with discovery rules. Material excised pursuant to judicial order shall be sealed and preserved in the records of the tribal court to be made available to the reviewing court in the event of an appeal or habeas corpus proceedings.

Subd. 8. Sanctions. If at any time it is brought to the attention of the trial court that a party has failed to comply with an applicable discovery rule or order, the tribal court may upon motion and notice order such party to permit the discovery or inspection, grant a continuance, or enter such order as it deems just in the circumstances. Any person who willfully disobeys a court order under these discovery rules may be held in contempt.

Subd. 9. Filing. Unless the tribal court orders otherwise for the purpose of a hearing or trial, discovery disclosures made pursuant to Rule 9 shall not be filed under the provisions of Rule 28.04.

The party making the disclosures shall prepare an itemized descriptive list identifying the disclosures without disclosing their contents and shall file the list as provided by Rule 28.04.

RULE 10. PLEADINGS AND MOTIONS BEFORE TRIAL; DEFENSES AND OBJECTIONS

Rule 10.01 Pleadings and Motions

Pleadings in criminal proceedings shall be by complaint or tab charge and the pleas prescribed by these rules. Defenses, objections, issues, or requests which are capable of determination without trial on the merits shall be asserted or made before trial by a motion to dismiss or to grant appropriate relief.

Rule 10.02 Motions Attacking Jurisdiction of the Tribal Court in Misdemeanor Cases

A motion to dismiss for want of personal jurisdiction shall not be made until after a complaint is filed and a not guilty plea entered unless the motion is heard and determined summarily. Notice of such a motion shall be given either orally on the record in court or in writing to the prosecution. Such notice shall be given no more than seven (7) days after entry of the not guilty plea or any challenge to the personal jurisdiction of the tribal court is waived unless the court for good reason shown grants relief from the waiver. The motion shall be served, heard and determined.

Rule 10.03 Waiver

The motion shall include all defenses, objections, issues and requests then available to the moving party. Failure to include any of them in the motion constitutes a waiver thereof, but the tribal court for good cause shown may grant relief from the waiver. However, lack of jurisdiction over the offense or the failure of the complaint to charge an offense shall be noticed by the court at any time during the pendency of the proceeding. The defendant does not waive any defenses or objections by including them in any motion with other defenses, objections or issues.

Rule 10.04 Service of Motions; Hearing Date

Subd. 1. Service. In gross misdemeanor cases, motions shall be made in writing and served upon opposing counsel not later than three (3) days before the omnibus hearing unless the court for good cause shown permits the motion to be made and served at a later time.

In misdemeanor cases, except as otherwise permitted by Rule 10.04, Subd. 2, motions shall be made in writing and along with any supporting affidavits shall be served upon opposing counsel at least three (3) days before they are to be heard and no more than thirty (30) days after the arraignment unless the court for good cause shown permits the motion to be made and served at a later time.

Subd. 2. Hearing Date. In gross misdemeanor cases, unless the motion is served after the omnibus hearing, it shall be heard at that hearing and shall be determined as provided by Rule 11.07.

In misdemeanor cases, if a pretrial conference is held, the motion shall be heard there unless the court directs otherwise for the purpose of hearing witnesses or for other good cause. If the motion is not heard at a pretrial conference, it shall be heard immediately prior to trial, provided that the court may upon agreement by the prosecutor and defense counsel summarily hear and determine the motion at arraignment. If the motion is heard at the arraignment, it need not be in writing, but a record shall be made of the proceedings and in the court’s discretion witnesses may be called. The motion shall be determined before trial as provided by Rule 12.07.

RULE 11. OMNIBUS HEARING IN GROSS MISDEMEANOR CASES

If the defendant does not plead guilty at the initial appearance before the tribal court following a complaint or, for a gross misdemeanor under White Earth Band Motor Vehicles & Highways Code Sec. 1-6-26 (Driving While Under the Influence of Intoxicating Liquor or Drugs), following a tab charge, a hearing shall be held as follows:

Rule 11.01. Place of Hearing

The hearing shall be held in the tribal court in the judicial district wherein the alleged offense was committed.

Rule 11.02 Hearing on Evidentiary Issues

Subd. 1. Evidence. If the defendant or prosecution has demanded a hearing on either of the issues specified by Rule 8.03, the court shall hear and determine them upon such evidence as may be offered by the prosecution or the defense.

Subd. 2. Cross-Examination. Upon such hearing, the defendant and the prosecution may cross-examine the other’s witnesses.

Rule 11.03 Motions

The tribal court shall hear and determine all motions made by the defendant or prosecution, including a motion that there is an insufficient showing of probable cause to believe that the defendant committed the offense charged in the complaint, and receive such evidence as may be offered in support or opposition. Each party may cross-examine any witnesses produced by the other. A finding by the tribal court of probable cause shall be based upon the entire record including reliable hearsay in whole or in part.

Rule 11.04 Other Issues

The omnibus hearing may include a pretrial dispositional conference to determine whether the case can be resolved without scheduling it for trial. The tribal court shall ascertain any other constitutional, evidentiary, procedural or other issues that may be heard or disposed of before trial and such other matters as will promote a fair and expeditious trial, and shall hear and determine them, or continue the hearing for that purpose as permitted by Rule 11.07.

If the prosecution has given notice under Rule 7.02 of intention to offer evidence of additional offenses, upon motion a hearing shall be held to determine their admissibility and whether there is clear and convincing evidence that defendant committed the offenses.

Rule 11.05. Amendment of Complaint

The complaint may be amended as prescribed by these rules.

Rule 11.06. Pleas

At the hearing the defendant may be permitted to plead to the offense charged in the complaint or to a lesser included offense, or an offense of lesser degree as permitted by Rule 15.

Rule 11.07. Continuances; Determination of Issues

Upon motion of the prosecuting attorney or the defendant or upon the tribal court’s initiative, the court may continue the hearing or any part thereof from time to time as may be necessary for good cause related to the particular case. All issues presented at the omnibus hearing shall be determined within 30 days after the defendant’s appearance under Rule 8 unless a later determination is required for good cause related to the particular case. When issues are determined, the tribal court shall make appropriate findings in writing or orally on the record. The issues presented at the omnibus hearing shall be consolidated for hearing except as otherwise permitted by these rules.

Rule 11.08 Record

Subd. 1. Recording. A verbatim record of the proceedings shall be made.

Subd. 2. Transcript. Upon timely application to the reporter, counsel for the defendant or for the prosecution shall be furnished with a transcript of the proceedings upon the following conditions:

(a) If the transcript is to be furnished to defense counsel, the costs thereof shall be prepaid except when the defendant is represented by the public defender or assigned counsel, or when the defendant makes a sufficient affidavit of inability to pay or secure the costs and the tribal court orders that the defendant be supplied with the transcript at the expense of the appropriate governmental unit.

(b) The prosecution shall be furnished with the transcript without prepayment of costs.

(c) When a transcript is furnished to counsel, a copy shall be filed with the clerk of the tribal court.

Subd. 3. Filing. The record and all papers and exhibits in the proceeding shall be filed or placed in the custody of the clerk of the tribal court. Upon order of the court any exhibit may be returned to the party producing it.

Rule 11.09 Plea; Trial Date

If the defendant is not discharged the defendant shall plead to the complaint or be given additional time within which to plead. If the defendant pleads not guilty, a trial date shall then be set. A defendant shall be tried as soon as possible after entry of a not guilty plea. On demand made in writing or orally on the record by the prosecuting attorney or the defendant, the trial shall be commenced within sixty (60) days from the date of the demand unless good cause is shown upon the prosecuting attorney’s or the defendant’s motion or upon the tribal court’s initiative why the defendant should not be brought to trial within that period. The time period shall not begin to run earlier than the date of the not guilty plea. If trial is not commenced within 120 days after such demand is made and the not guilty plea is entered, the defendant, except in exigent circumstances, shall be released subject to such non-monetary release conditions as may be required by the tribal court under Rule 6.02, Subd. 1.

Rule 11.10 Exclusion of Witnesses

Before or during any omnibus or other pretrial hearing or proceeding, witnesses may be sequestered or excluded from the courtroom, prior to their appearance, in the discretion of the tribal court.

RULE 12. PRETRIAL CONFERENCE AND EVIDENTIARY HEARING IN MISDEMEANOR CASES

Rule 12.01. Pretrial Conference

A pretrial conference may be held in such cases and at such time as the tribal court orders to consider the motions and other issues referred to in Rules 12.02 and 12.03. Such motions and other issues shall be heard immediately prior to trial whenever there has been no pretrial conference or whenever the tribal court has so ordered for the purpose of hearing witnesses or for other good cause.

Rule 12.02. Motions

The tribal court shall hear and determine all motions made by the defendant or prosecution and receive such evidence as may be offered in support or opposition. The defendant may offer evidence in defense, and the defendant and prosecution may cross-examine the other’s witnesses.

Rule 12.03. Other Issues

The tribal court shall ascertain any other constitutional, evidentiary, procedural or other issues that may be heard or disposed of before trial and such other matters as will promote a fair and expeditious trial, and shall hear and determine them, or continue the hearing for that purpose.

If the prosecution has given notice under Rule 7.02 of intention to offer evidence of additional offenses, upon motion a hearing shall be held to determine their admissibility and whether there is clear and convincing evidence that defendant committed the offenses.

Rule 12.04. Hearing on Evidentiary Issues

Subd. 1. Evidence. If the defendant or the prosecution has demanded a hearing on the issue specified by Rule 7.01, the tribal court shall hear and determine the issue upon such evidence as may be offered by the prosecutor or the defense.

Subd. 2. Cross-Examination. Upon such hearing, the defendant and the prosecution may cross-examine the other’s witnesses as to the evidentiary and identification issues raised as specified in Rule 7.01.

Subd. 3. Time. Any evidentiary hearing shall be held separately from the trial when the trial is to be before a jury and in the discretion of the tribal court may be held either separately or as part of the trial when the trial is to the court. Any separate hearing shall be held immediately prior to trial unless the tribal court for good cause otherwise orders.

Rule 12.05. Amendment of Complaint

The complaint, if any, may be amended at the pretrial conference as prescribed by these rules.

Rule 12.06. Pleas

At the pretrial conference the defendant may be permitted to withdraw any prior plea and to enter a plea of guilty to the offense charged or such other different offense as permitted in Rule 15.08.

Rule 12.07. Continuances; Determination of Issues

The tribal court may continue the pretrial conference as necessary and for the purpose of taking testimony or other good cause, and may continue the determination of any issues or motions until the day of trial. All motions and issues including those raised at the evidentiary hearing shall be determined before trial begins unless otherwise agreed to by the prosecution and the defense. When the motions and issues are determined, the tribal court shall make appropriate findings in writing or orally on the record.

Rule 12.08. Record

Subd. 1. Record. Unless waived by counsel, a verbatim record of the proceedings at the evidentiary hearing shall be made.

Subd. 2. Transcript and Filing. Transcript and filing shall be governed by the provisions of Rule 11.08, Subd. 2 and Subd. 3.

RULE 13. ARRAIGNMENT IN GROSS MISDEMEANOR CASES

The arraignment shall be conducted as follows:

Rule 13.01. In Open Court

The arraignment shall be conducted in open court.

Rule 13.02. Right to Counsel

If the defendant other than a corporation appears without counsel, the tribal court shall advise the defendant of the right to counsel, and when required, shall appoint counsel pursuant to Rule 5.02.

Rule 13.03. Copy and Reading of Charges

The defendant shall be provided with a copy of the complaint if it has not been previously provided. The complaint shall be read to the defendant unless the reading is waived. For gross misdemeanors under White Earth Band Motor Vehicles & Highways Code Section 1-6-26 (Driving While Under the Influence of Intoxicating Liquor or Drugs) prosecuted by tab charge pursuant to Rule 4.02, Subd. 5(3), the tab charge shall be read to the defendant.

Rule 13.04. Plea

The defendant shall be called on to plead or may be given time to plead.

Rule 13.05. Record

A verbatim record of the arraignment shall be made.

RULE 14. PLEAS

Rule 14.01. Pleas Permitted

A defendant may plead as follows:

(a) Guilty.

(b) Not guilty.

(c) Not guilty by reason of mental illness or mental deficiency.

(d) Double jeopardy or that prosecution is barred by any provision of the White Earth Band Criminal Code, either of which may be pleaded with or without the plea of not guilty.

Rule 14.02. Who May Plead

Subd. 1. By an Individual in Gross Misdemeanor Cases. A plea to a complaint or, for a gross misdemeanor under White Earth Band Motor Vehicles & Highways Code Sec. 1-6-26 (Driving While Under the Influence of Intoxicating Liquor or Drugs), a tab charge by an individual defendant shall be made orally on the record by the defendant in person.

Subd. 2. By an Individual in Misdemeanor Cases. A plea to a complaint or tab charge by an individual defendant shall be made orally on the record or by the petition to plead guilty provided for in Rule 15.03, Subd. 2. If the tribal court is satisfied that the defendant has knowingly and voluntarily waived the right to be present, the plea may be entered by counsel.

Subd. 3. By a Corporation. A plea by a corporate defendant shall be made by counsel or a corporate officer, and shall be made orally on the record or in writing.

Subd. 4. Defendant’s Refusal to Plead. If the defendant stands mute or refuses to plead, of if the tribal court refuses to accept a plea of guilty, the court shall proceed as if the defendant had entered a plea of not guilty.

If a defendant corporation fails to appear, the trial court upon proof of the commission of the offense charged may enter judgment of conviction and impose such sentence as may be appropriate.

Rule 14.03. Time of Plea

At any time during the proceedings, except as provided by Rule 8.01, a defendant may appear before the tribal court to enter a plea of guilty to the offense charged or to some other offense pursuant to a plea agreement reached under Rule 15.04. To schedule such an appearance, the defendant shall file a written request with the clerk of tribal court indicating the offense to which the defendant wishes to plead guilty. Upon receiving such a request, the clerk shall schedule an appearance before the tribal court at the earliest available date, which date, in any event, shall be not later than fourteen (14) days after the filing of the request. The clerk shall then notify the defendant and the prosecuting attorney of the time and place of such court appearance.

RULE 15. PROCEDURE UPON PLEA OF GUILTY;
PLEA AGREEMENTS; PLEA WITHDRAWAL;
PLEA TO LESSER OFFENSE

Rule 15.01 Acceptance of Plea; Questioning Defendant; Gross Misdemeanor Cases

Before the tribal court accepts a plea of guilty, the defendant shall be sworn and questioned by the tribal court with the assistance of counsel as to the following:

1. Name, age and date and place of birth and whether the defendant is handicapped in communication and, if so, whether a qualified interpreter has been provided for the defendant.

2. Whether the defendant understands the crime charged.

3. Specifically, whether the defendant understands that the crime charged is (name the offense) committed on or about (month) (day) (year) in County, Minnesota on the White Earth Reservation (and that the defendant is entering a plea of guilty to the crime of (name of offense) which is a lesser degree or lesser included offense of the crime charged).

4. a. Whether the defendant has had sufficient time to discuss the case with defense counsel.

b. Whether the defendant is satisfied that defense counsel is fully informed as to the facts of the case, and that defense counsel has represented the defendant’s interests and fully advised the defendant.

5. Whether the defendant has been told by defense counsel and understands that upon a plea of not guilty, there is a right to a trial by jury and that a finding of guilty is not possible unless all jurors agree.

6. a. Whether the defendant has been told by defense counsel and understands that there will not be a trial by either a jury or by a judge without a jury if the defendant pleads guilty.

b. Whether the defendant waives the right to a trial.

7. Whether the defendant has been told by defense counsel, and understands that if the defendant wishes to plead not guilty and have a trial by jury or by a judge, the defendant will be presumed to be innocent until guilty is proved beyond a reasonable doubt.

8. a. Whether the defendant has been told by defense counsel, and understands that if the defendant wishes to plead not guilty and have a trial, the prosecutor will be required to have the prosecution witnesses testify in open court in the defendant’s presence, and that the defendant will have the right through defense counsel, to question these witnesses.

b. Whether the defendant waives the right to have those witnesses testify in the defendant’s presence in court and be questioned by defense counsel.

9. a. Whether the defendant has been told by defense counsel and understands that if the defendant wishes to plead not guilty and have a trial, the defendant will be entitled to require any defense witnesses to appear and testify.

b. Whether the defendant waives this right.

10. Whether defense counsel has told the defendant and the defendant understands:

a. That the maximum penalty that the court could impose for the crime charged (taking into consideration any prior conviction or convictions) is imprisonment for             years.

b. That if a minimum sentence is required by statute the court may impose a sentence of imprisonment of not less than             months for the crime charged.

11. Whether defense counsel has told the defendant that the defendant discussed the case with one of the prosecuting attorneys, and that the respective attorneys agreed that if the defendant entered a plea of guilty the prosecutor will do the following: (state the substance of the plea agreement).

12. Whether defense counsel has told the defendant and the defendant understands that if the court does not approve the plea agreement, the defendant has an absolute right to withdraw the plea of guilty and have a trial.

13. Whether, except for the plea agreement, any policeman, prosecutor, judge, defense counsel, or any other person, made any promises or threats to the defendant or any member of the defendant’s family, or any of the defendant’s friends, or other persons in order to obtain a plea of guilty.

14. Whether defense counsel has told the defendant and the defendant understands that if the plea of guilty is for any reason not accepted by the court, or is withdrawn by the defendant with the court’s approval, or is withdrawn by court order on appeal or other review, that the defendant will stand trial on the original charge (charges) namely, (state the offenses) (which would include any charges that were dismissed as a result of the plea agreement) and that the prosecution could proceed just as if there had never been any agreement.

15. a. Whether the defendant has been told by defense counsel and understands, that if the defendant wishes to plead not guilty and have a jury trial, the defendant can testify if the defendant wishes, but that if the defendant decided not to testify, neither the prosecutor nor the judge could comment to the jury about the failure to testify.

b. Whether the defendant waives this right, and agrees to tell the court about the facts of the crime.

16. Whether with knowledge and understanding of these rights the defendant still wishes to enter a plea of guilty or instead wishes to plead not guilty.

17. Whether the defendant makes any claim of innocence.

18. Whether the defendant is under the influence of intoxicating liquor or drugs or under mental disability or under medical or psychiatric treatment.

19. Whether the defendant has any questions to ask or anything to say before stating the facts of the crime.

20. What is the factual basis for the plea.

(NOTE: It is desirable that the defendant also be asked to acknowledge signing the Petition to Plead Guilty, suggested form of which is contained in the Appendix A of these rules; that the defendant has read the questions set forth in the petition or that they have been read to the defendant, and that the defendant understands them; that the defendant gave the answers set forth in the petition; and that they are true.)

Rule 15.02. Acceptance of Plea; Questioning Defendant; Misdemeanor Cases

Before the tribal court accepts a plea of guilty to any offense punishable upon conviction by incarceration, any plea agreement shall be explained in open court. The defendant shall then be questioned by the tribal court or counsel in substance as follows:

1. Specifically whether the defendant understands that the crime charged is (name the offense) committed on or about (month) (day) (year) in County, Minnesota on the White Earth Reservation (and that the defendant is pleading guilty to the crime of (name of offense)).

2. Whether the defendant realizes that the maximum possible sentence is 90 days imprisonment and a fine in the amount allowed by applicable law. (Under applicable law, if the maximum sentence is less, it should be so stated).

3. Whether the defendant knows there is a right to the assistance of counsel at every stage of the proceedings and that counsel will be appointed for a defendant unable to afford counsel.

4. Whether the defendant knows of the right:

(a) to trial by the court or a jury and that a finding of guilty is not possible in a jury unless all jurors agree;

(b) to confront and cross-examine all prosecution witnesses;

(c) to subpoena and present defense witnesses;

(d) to testify or remain silent at trial or at any other time;

(e) to be presumed innocent and that the White Earth Band must prove its case beyond a reasonable doubt; and

(f) to a pretrial hearing to contest the admissibility at trial of any confessions or admissions or of any evidence obtained from a search and seizure.

5. Whether the defendant waives these rights.

6. Whether the defendant understands the nature of the offense charged.

7. Whether the defendant believes that what the defendant did constitutes the offense to which the defendant is pleading guilty.

The tribal court with the assistance of counsel, if any, shall then elicit sufficient facts from the defendant to determine whether there is a factual basis for all elements of the offense to which the defendant is pleading guilty.

Where the guilty plea is being entered at the defendant’s first appearance in tribal court, the statement as to the defendant’s rights required by Rule 5.01 may be combined with the questioning required above prior to entry of a guilty plea.

Rule 15.03. Alternative Methods in Misdemeanor Cases

Subd. 1. Group Warnings. The tribal court may advise a number of defendants at once as to the consequences of a plea and as to their constitutional rights as specified in questions 2, 3, and 4 above. Before such a procedure is followed the tribal court shall first determine whether any defendant is handicapped in communication. If so, the tribal court must provide the services of a qualified interpreter to any such defendant and should provide the warnings contemplated by this rule to any such defendant individually. The court’s statement in a group warning shall be recorded and each defendant when called before the court shall be asked whether the defendant heard and understood the statement. The defendant shall then be questioned on the record as to the remaining matters specified in Rule 15.02.

Subd. 2. Petition to Plead Guilty. The defendant or defense counsel may file with the tribal court a petition to plead guilty as provided for in the Appendix B to Rule 15 signed by the defendant indicating that the defendant is pleading guilty to the specified misdemeanor offense with the understanding and knowledge required of defendants personally entering a guilty plea under Rule 15.02.

Rule 15.04. Plea Discussion and Plea Agreements

Subd. 1. Propriety of Plea Discussions and Plea Agreements. In cases in which it appears that it would serve the interest of the public in the effective administration of criminal justice under the principles set forth in Rule 15.04, Subd. 3(2), the prosecuting attorney may engage in plea discussions for the purpose of reaching a plea agreement. The prosecuting attorney may engage in plea discussions and reach a plea agreement with the defendant or through defense counsel.

Subd. 2. Relationship Between Defense Counsel and Defendant. Defense counsel shall conclude a plea agreement only with the consent of the defendant and shall ensure that the decision to enter a plea of guilty is ultimately made by the defendant.

Subd. 3. Responsibilities of the Trial Court Judge.

(1) Disclosure of Plea Agreement. If a plea agreement has been reached which contemplates entry of a plea of guilty, the trial court judge may permit the disclosure of the agreement and the reasons therefor in advance of the time for tender of the plea. When such a plea is tendered and the defendant questioned, the trial court judge shall reject or accept the plea of guilty on the terms of the plea agreement. The tribal court may postpone its acceptance or rejection until it has received the results of a pre-sentence investigation. If the court rejects the plea agreement, it shall so advise the parties in open court and then call upon the defendant to either affirm or withdraw the plea.

(2) Consideration of Plea in Final Disposition. The tribal court may accept a plea agreement of the parties when the interest of the public in the effective administration of justice would thereby be served. Among the considerations which are appropriate in determining whether such acceptance should be given are:

(a) That the defendant by pleading guilty has aided in ensuring the prompt and certain application of correctional measures;

(b) That the defendant has acknowledged guilt and shown a willingness to assume responsibility for the criminal conduct;

(c) That the concessions will make possible the application of alternative correctional measures which are better adapted to achieving rehabilitative, protective, deterrent or other purposes of correctional treatment, or will prevent undue harm to the defendant;

(d) That the defendant has made trial unnecessary when there are good reasons for not having a trial;

(e) That the defendant has given or offered cooperation which has resulted or may result in the successful prosecution of other offenders engaged in serious criminal conduct;

(f) That the defendant by pleading has aided in avoiding delay in the disposition of other cases and thereby has contributed to the efficient administration of criminal justice.

Rule 15.05 Plea Withdrawal

Subd. 1. To Correct Manifest Injustice. The tribal court shall allow a defendant to withdraw a plea of guilty upon a timely motion and proof to the satisfaction of the court that withdrawal is necessary to correct a manifest injustice. Such a motion is not barred solely because it is made after sentence. If a defendant is allowed to withdraw a plea after sentence, the tribal court shall set aside the judgment and the plea.

Subd. 2. Before Sentence. In its discretion the tribal court may also allow the defendant to withdraw a plea at any time before sentence if it is fair and just to do so, giving due consideration to the reasons advanced by the defendant in support of the motion and any prejudice the granting of the motion would cause the prosecution by reason of actions taken in reliance upon the defendant’s plea.

Subd. 3. Withdrawal of Guilty Plea Without Asserting Innocence. The defendant may move to withdraw a plea of guilty without an assertion of not guilty of the charge to which the plea was entered.

Rule 15.06. Plea Discussions and Agreements Not Admissible

If the defendant enters a plea of guilty which is not accepted or which is withdrawn, neither the plea discussions, nor the plea agreement, nor the plea shall be received in evidence against or in favor of the defendant in any criminal, civil, or administrative proceeding.

Rule 15.07. Plea to Lesser Offenses

With the consent of the prosecuting attorney and the approval of the tribal court, the defendant shall be permitted to enter a plea of guilty to a lesser included offense or to an offense of lesser degree. Upon motion of the defendant and hearing thereon the tribal court may accept a plea of guilty to a lesser included offense or to an offense of lesser degree, provided the court is satisfied following hearing that the prosecution cannot introduce evidence sufficient to justify the submission of the offense charged to the jury or that it would be a manifest injustice not to accept the plea. In either event, the plea may be entered without amendment of the complaint or tab charge.

Rule 15.08. Plea to Different Offense

With the consent of the prosecuting attorney and the defendant, the defendant may enter a plea of guilty to a different offense than that charged in the original tab charge or complaint. If the different offense is a gross misdemeanor, other than a gross misdemeanor under White Earth Band Motor Vehicles & Highways Code Sec. 1-6-26 (Driving While Under the Influence of Intoxicating Liquor or Drugs), a new complaint shall be signed by the prosecuting attorney and filed in the tribal court. The complaint shall be in the form prescribed by Rule 2.01 and Rule 2.03, except that it need not be made upon oath and the facts establishing probable cause to believe the defendant committed the offense charged need not be provided. If the different offense is a misdemeanor or a gross misdemeanor under White Earth Band Motor Vehicles & Highways Code Sec. 1-6-26 (Driving While Under the Influence of Intoxicating Liquor or Drugs), the defendant may be charged by complaint or tab charge as provided in Rule 4.02, Subd. 5(3) with the new offense and the original charge shall be dismissed.

Rule 15.09. Record of Proceedings

Upon a guilty plea to an offense punishable by incarceration, either a verbatim record of the proceedings shall be made, or in the case of misdemeanors, a petition to enter a plea of guilty, as provided in the Appendix B to Rule 15, shall be filed with the tribal court. If a written petition to enter a plea of guilty is submitted to the tribal court, it shall be in the appropriate form as set forth in Appendix A and Appendix B to this rule. In gross misdemeanor cases, any verbatim record made in accordance with this rule shall be transcribed and filed with the clerk of tribal court within 30 days after the date of sentencing. In misdemeanor cases, any such record need not be transcribed unless requested by the tribal court, the defendant or the prosecuting attorney.

Rule 15.10. Use of Guilty Plea Petitions When Defendant Handicapped in Communications

In all cases in which a defendant is handicapped in communication because of difficulty in speaking or comprehending the English language, the tribal court may not accept a guilty plea petition unless the defendant is first able to review it with the assistance of a qualified interpreter and the tribal court establishes on the record that this has occurred. Whenever practicable, the tribal court should use multilingual guilty plea petitions to insure that the defendant understands all rights being waived, the nature of the proceedings, and the petition.

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APPENDIX A TO RULE 15

WHITE EARTH RESERVATION TRIBAL COURT

Court File #_______

White Earth Reservation,

PETITION TO ENTER PLEA OF GUILTY

vs.

____________

Defendant.

TO: THE ABOVE NAMED COURT

I, _______, defendant in the above entitled action do respectfully represent and state as follows:

1. My full name is _______. I am years _______ old, my date of birth is _______. The last grade that I went through in school is _______.

2. If filed in my case, I have received, read and discussed a copy of the Complaint.

3. I understand the charge made against me in this case.

4. Specifically, I understand that I have been charged with the crime of _______ committed on or about _______ in _______ County, Minnesota, on the White Earth Reservation (and that the crime I am talking about is _______ which is a lesser degree or lesser included offense of the crime charged).

5. I am represented by an attorney whose name is _______ and:

a. I feel that I have had sufficient time to discuss my case with my attorney.

b. I am satisfied that my attorney is fully informed as to facts of this case.

c. My attorney has discussed possible defenses to the crime that I might have.

d. I am satisfied that my attorney has represented my interests and has fully advised me.

6. I (have) (have never) been a patient in a mental hospital.

7. I (have) (have not) talked with or been treated by a psychiatrist or other person for a nervous or mental condition.

8. I (have) (have not) been ill recently.

9. I (have) (have not) recently been taking pills or other medicines.

10. I (do) (do not) make the claim that I was so drunk or so under the influence of drugs or medicine that I did not know that I was doing at the time of the crime.

11. I (do) (do not) make the claim that I was acting in self-defense or merely protecting myself or others at the time of the crime.

12. I (do) (do not) make the claim that the fact that I have been held in jail since my arrest and could not post bail caused me to decide to plead guilty in order to get the thing over with rather than waiting for my turn at trial.

13. I (was) (was not) represented by an attorney when I (had a probable cause hearing). (If I have not had a probable cause hearing)

a. I know that I could now move that the complaint against me be dismissed for lack of probable cause and I know that if I do not make such a motion and go ahead with entering my plea of guilty, I waive all right to successfully object to the absence of a probable cause hearing.

b. I also know that I waive all right to successfully object to any errors in the probable cause hearing when I enter my plea of guilty.

c. For gross misdemeanor driving while intoxicated charges under White Earth Band Motor Vehicles & Highways Code Sec. 1-6-26 (Driving While Under the Influence of Intoxicating Liquor or Drugs) if a complaint has not been filed, I know that I could request that a complaint be filed and that I waive my right to do so. I know that I could move that any complaint filed against me be dismissed for lack of probable cause. I also know that if I plead guilty, I waive all right to object to the absence of a probable cause hearing.

14. My attorney has told me and I understand:

a. That the prosecutor for the case against me, has:

i. physical evidence obtained as a result of searching for and seizing the evidence;

ii. evidence in the form of statements, oral or written that I made to police or others regarding this crime;

iii. evidence discovered as a result of my statements or as a result of the evidence seized in a search;

iv. identification evidence from a lineup or photographic identification;

v. evidence the prosecution believes indicates that I committed one or more other crimes.

b. That I have a right to a pre-trial hearing before a judge to determine whether or not the evidence the prosecution has could be used against me if I went to trial in this case.

c. That if I requested such a pre-trial hearing I could testify at the hearing if I wanted to, but my testimony could not be used as substantive evidence against me if I went to trial and could only be used against me if I was charged with the crime of perjury. (Perjury means testifying falsely.)

d. That I (do) (do not) now request such a pre-trial hearing and I specifically (do) (do not) now waive my right to have such a pre-trial hearing.

e. That whether or not I have had such a hearing I will not be able to object tomorrow or any other time to the evidence that the prosecutor has.

15. I have been told by my attorney and I understand:

a. That if I wish to plead not guilty I am entitled to a trial by a jury and all jurors would have to agree I was guilty before the jury could find me guilty.

b. That if I plead guilty I will not have a trial by either a jury or by a judge without a jury.

c. That with knowledge of my right to a trial I now waive my right to a trial.

16. I have been told by my attorney and I understand that if I wish to plead not guilty and have a trial by jury or a trial by judge I would be presumed innocent until my guilt is proved beyond a reasonable doubt.

17. I have been told by my attorney and I understand:

a. That if I wish to plead not guilty and have a trial the prosecutor would be required to have the witnesses testify against me in open court in my presence and that I would have the right, through my attorney, to question these witnesses.

b. That with knowledge of my right to have the prosecution’s witnesses testify in open court in my presence and questioned by my attorney, I now waive this right.

18. I have been told by my attorney and I understand:

a. That if I wish to plead not guilty and have a trial I would be entitled to require any witnesses that I think are favorable to me to appear and testify at trial.

b. That with knowledge of my right to require favorable witnesses to appear and testify at trial I now waive this right.

19. I have been told by my attorney and I understand:

a. That a person who has prior convictions or a prior conviction can be given a longer term of imprisonment because of this.

b. That the maximum penalty that the tribal court could impose for this crime (taking into consideration any prior conviction or convictions) is imprisonment for years. That if a minimum sentence is required by statute the tribal court may impose a sentence of imprisonment of not less than months for this crime.

c. That a person who participates in a crime by intentionally aiding, advising, counseling and conspiring with another person or persons to commit a crime is just as guilty of that crime as the person or persons who are present and participating in the crime when it is actually committed.

d. That my present probation or parole could be revoked because of the plea of guilty to this crime.

20. I have been told by my attorney and I understand:

a. That my attorney discussed this case with one of the prosecuting attorneys and that my attorney and the prosecuting attorney agreed that if I entered a plea of guilty, the prosecutor would do the following:

(Give the substance of the agreement.)

b. That if the tribal court does not approve this agreement:

i. I have an absolute right to then withdraw my plea of guilty and have a trial.

ii. Any testimony that I have given concerning the guilty plea could not be used against me unless I am charged with the crime of perjury based on this testimony.

21. That except for the agreement between my attorney and the prosecuting attorney:

a. No one—including my attorney, any policeman, prosecutor, judge, or any other person—has made any promises to me, to any member of my family, to any of my friends or other persons, in order to obtain a plea of guilty from me.

b. No one—including my attorney, any policeman, prosecutor, judge, or any other person—has threatened me or any member of my family or my friends or other persons, in order to obtain a plea of guilty from me.

22. My attorney has told me and I understand that if my plea of guilty is for any reason not accepted by the tribal court, or if I withdraw the plea, with the tribal court’s approval, or if the plea is withdrawn by court order on appeal or other review:

a. I would then stand trial on the original charge (charges) against me, namely                         (which would include any charges that were dismissed as a result of the plea agreement entered into by my attorney and the prosecuting attorney.

b. The prosecution could proceed against me just as if there had been no plea of guilty and no plea agreement.

23. My attorney has told me and I understand that if my plea of guilty is accepted by the judge I have the right to appeal, but that any appeal or other court action I may take claiming error in the proceedings probably would be useless and a waste of my time and the tribal court’s.

24. My attorney has told me and I understand that a judge will not accept a plea of guilty for anyone who claims to be innocent.

25. I now make no claim that I am innocent.

26. I have been told by my attorney and I understand that if I wish to plead not guilty and have a jury trial:

a. That I could testify at trial if I wanted to but I could not be forced to testify.

b. That if I decided not to testify neither the prosecutor nor the judge could comment on my failure to testify.

c. That with knowledge of my right not to testify and that neither the judge nor the prosecutor could comment on my failure to testify at trial I now waive this right and I will tell the judge about the facts of the crime.

27. That in view of all above facts and considerations I wish to enter a plea of guilty.

Dated this day of _______, 19

____________
DEFENDANT

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APPENDIX B TO RULE 15

WHITE EARTH RESERVATION TRIBAL COURT

Court File # _______

White Earth Reservation,

MISDEMEANOR PETITION

TO ENTER PLEA OF GUILTY

vs.

______________

Defendant.

TO: THE ABOVE-NAMED COURT:

I wish to enter a plea of guilty in the above-entitled case and I hereby state to the Court the following:

1. I am the defendant in this case, my full name is                        _______ and my date of birth is                       _______.

2. I am charged with                       in violation of                       _______.

3. I hereby plead guilty to the offense of                        in violation of                       .

4. I am pleading guilty because on                        in the County of                        on the White Earth Reservation and within the State of Minnesota I committed the following acts: (state sufficient facts to establish a factual basis for all elements of the offense to which the defendant is pleading guilty.)

5. I understand that the maximum possible sentence for the misdemeanor offense to which I am pleading guilty is 90 days imprisonment or a fine of             or both.

6. RIGHT TO AN ATTORNEY. I understand that I have the right to be represented by an attorney and that an attorney will be appointed to represent me without cost to me if I cannot afford to pay for an attorney.

7. I have fully discussed the charge(s), my constitutional rights, and this petition with my attorney,                       .

[or]

7a. WAIVER OF ATTORNEY. I give up my right to be represented by an attorney and any right I might have to request that an attorney be appointed to represent me.

8. I understand that I also have the following constitutional rights which I knowingly and voluntarily give up:

a. The right to a trial to the tribal court or to a jury in which I am presumed innocent until proven guilty beyond a reasonable doubt and in which all jurors in a jury trial must agree I am guilty before the jury could find me guilty.

b. The right to confront and cross-examine all witnesses against me.

c. The right to remain silent or to testify for myself.

d. The right to subpoena and present witnesses to testify for me in my defense.

e. The right to a pretrial hearing to contest the admissibility at trial of any confessions or admissions or of any evidence obtained from a search and seizure.

9. I am entering my plea of guilty freely and voluntarily and without any promises except as indicated in number 10 below.

10. I am entering my plea of guilty based on the following plea agreement with the prosecutor:

(if none, so state).

11. I understand that if the tribal court does not approve this agreement I have the right to withdraw my plea of guilty and have a trial.

12. I understand that if this plea of guilty is accepted I have the right to be present at the time of sentencing and to speak and to present evidence on my behalf.

13. I hereby request to be present at the time of sentencing.

[or]

13a. I hereby knowingly and voluntarily give up my right to be present upon (entry of my plea and) sentencing and request that the tribal court sentence me in my absence, but according to any plea agreement that might be contained in this petition.

 

Dated this day of _______, 19

 

______________

Signature of Defendant

______________

Printed Name of Defendant

I, _______, state that I am the attorney for the defendant in the above-entitled criminal action; that I personally explained the contents of the above petition to the defendant; and that I personally observed the defendant date and sign the above petition.

Dated this             day of _______, 19

 

______________

Attorney for Defendant

PETITION AND PLEA OF GUILTY ACCEPTED BY

______________

Judge of Tribal Court Date

 

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RULE 16. PROCEEDINGS FOR MENTALLY ILL OR MENTALLY DEFICIENT

Rule 16.01 Competency to Proceed

Subd. 1. Competency to Proceed Defined. A defendant shall not be permitted to waive counsel who lacks sufficient ability to knowingly, voluntarily, and intelligently waive the constitutional right to counsel, to appreciate the consequences of the decision to proceed without representation by counsel, to comprehend the nature of the charge and proceedings, the range of applicable punishments, and any additional matters essential to a general understanding of the case. The tribal court may not proceed under this rule before a lawyer consults with the defendant and the lawyer has an opportunity to be heard by the tribal court. A defendant shall not be permitted to enter a plea or be tried or sentenced for any offense if the defendant:

(1) lacks sufficient ability to consult with a reasonable degree of rational understanding with defense counsel; or

(2) is mentally ill or mentally deficient so as to be incapable of understanding the proceedings or participating in the defense.

Subd. 2. Proceedings. If during the pending proceedings, the prosecuting attorney, defense counsel, or the tribal court has reason to doubt the competency of the defendant, then the prosecuting attorney or defense counsel by motion or the tribal court on its initiative shall raise that issue. Any such motion may be brought over the objection of the defendant. The motion shall set forth the facts constituting the basis for the motion, but defense counsel shall not divulge communications in violation of the attorney-client privilege. The bringing of the motion by defense counsel does not waive the attorney-client privilege. If the tribal court determines upon motion of the prosecuting attorney or defense counsel or upon initiative of the court that there is reason to doubt the defendant’s competency as defined by this rule, the tribal court shall suspend the criminal proceedings and shall proceed as follows:

(1) Misdemeanors. If the charge is a misdemeanor, the tribal court shall either proceed according to this rule, or cause civil commitment proceedings to be instituted against the defendant, or unless contrary to the public interest, dismiss the case.

(2) Probable Cause—Gross Misdemeanor. In the case of a gross misdemeanor, unless the issue of probable cause has previously been determined, the tribal court, upon motion, before proceeding further shall determine whether there is sufficient probable cause stated on the face of the complaint. If the tribal court determines that the complaint does not state sufficient probable cause to believe the defendant committed the offense charged, the charges against the defendant shall be dismissed.

(3) Medical Examination. The tribal court shall appoint at least one examiner to examine the defendant and report to the tribal court on the defendant’s mental condition.

If the defendant is otherwise entitled to release, confinement for the examination may not be ordered if the examination can be done adequately on an outpatient basis. The tribal court may make appearance for the outpatient examination a condition of the defendant’s release. If the examination cannot be adequately done on an outpatient basis or if the defendant is not otherwise entitled to be released, the court may order the defendant confined in a state mental hospital or other suitable hospital or facility for the purpose of such examination for a specified period not to exceed 60 days. If the defendant or prosecution has retained a qualified psychiatrist or clinical psychologist or physician experienced in the field of mental illness, the tribal court on request of the defendant or prosecuting attorney shall direct that such psychiatrist or psychologist or physician be permitted to observe the examination and to also examine the defendant. The tribal court shall further direct that if any of the mental-health professionals appointed to examine the defendant concludes that the defendant presents an imminent risk of serious danger to another person, is imminently suicidal, or otherwise needs emergency intervention, the mental-health professional shall promptly notify the prosecuting attorney, defense counsel, and the tribal court.

(4) Report of Examination. At the conclusion of the examination, a written report of the examination shall be forwarded to the judge who ordered the examination, and the judge shall cause copies of the report to be delivered forthwith to the prosecuting attorney and to defense counsel. The contents of the report shall not be otherwise disclosed until the hearing on the defendant’s competency. The report of the examination shall include without limitation:

(1) A diagnosis of the mental condition of the defendant.

(2) If the defendant is mentally ill or mentally deficient, an opinion as to: (a) the defendant’s capacity to understand the criminal proceedings and to participate in the defense; (b) whether the defendant presents an imminent risk of serious danger to another person, is imminently suicidal, or otherwise needs emergency intervention; (c) the treatment required, if any, for the defendant to attain or maintain competence with an explanation of the appropriate treatment alternatives by order of choice, including the extent to which the defendant can be treated without being committed to an institution and the reasons for rejecting such treatment if institutionalization is recommended; and (d) whether there is a substantial probability that with treatment or otherwise the defendant will ever attain the competency to proceed, and if so, in approximately what period of time, and the availability of the various types of acceptable treatment in the local geographical area, specifying the agencies or settings in which the treatment might be obtained and whether it would be available to an outpatient.

(3) A statement of the factual basis upon which the diagnosis and opinion are based.

(4) If the examination could not be conducted by reason of the defendant’s unwillingness to participate therein, a statement to that effect with an opinion, if possible, as to whether the defendant’s unwillingness was the result of mental illness or deficiency.

Subd. 3. Hearing and Determination of Competency.

(1) Request for Hearing. If either party files written objections to the report within ten (10) days after the receipt of a copy thereof, the tribal court, upon notice to the parties, shall hold a hearing on the issue of the defendant’s competency to proceed.

(2) Going Forward with Evidence. If the defense moved for the examination, the defense shall go forward first with evidence at the hearing. If the examination was on motion of the prosecuting attorney or on the initiative of the tribal court, the prosecuting attorney shall go forward first with evidence unless the court otherwise directs.

(3) Report and Evidence. At the hearing, evidence as to the defendant’s mental condition may be admitted, including the report of the person who examined the defendant at the direction of the tribal court. The person who prepared the report or any individual designated by that person as a source of information for preparation of the report, other than the defendant or defense counsel, is considered the court’s witness and may be called and cross-examined by either party.

(4) Defense Counsel as Witness. To the extent that doing so does not divulge communications in violation of the attorney-client privilege, defense counsel may relate to the tribal court, subject to examination by the prosecuting attorney, personal observations of and conversations with the defendant. Those disclosures do not automatically disqualify defense counsel from continuing to represent the defendant. The tribal court may inquire of defense counsel concerning the attorney-client relationship and the defendant’s ability to communicate effectively with defense counsel. However, the tribal court may not require defense counsel to divulge communications in violation of the attorney-client privilege. The prosecuting attorney may not cross-examine defense counsel responding to the court’s inquiry.

(5) Determination Without Hearing. If neither the prosecution nor the defense files written objections to the report within the ten day period, the tribal court without a hearing may determine the defendant’s competency to proceed upon the basis of the report.

(6) Decision and Sufficiency of Evidence. If upon consideration of the report and the evidence reviewed at any hearing, the tribal court finds by the greater weight of the evidence that the defendant is competent, the tribal court shall enter an order finding that the defendant is competent. Otherwise, the tribal court shall enter an order finding that the defendant is incompetent.

Subd. 4. Effect of Finding on Issue of Competency to Proceed.

(1) Finding of Competency. If the tribal court determines that the defendant is competent to proceed, the criminal proceedings against the defendant shall be resumed.

(2) Finding of Incompetency. If the charge against the defendant is a misdemeanor and the tribal court determines that the defendant is incompetent to proceed, the charge shall be dismissed. If the charge against the defendant is a gross misdemeanor and the tribal court determines that the defendant is incompetent to proceed, the criminal proceedings against the defendant shall be further suspended except as provided by Rule 16.01, Subd. 6.

(a) Finding of Mental Illness. If the tribal court determines that the defendant is mentally ill so as to be incapable of understanding the criminal proceedings or participating in the defense, and the defendant is under civil commitment as mentally ill, the tribal court may order that the commitment be continued, and if not under commitment, the tribal court shall cause civil commitment proceedings to be instituted against the defendant. The commitment or continuing commitment shall be subject to the supervision of the trial court as provided by Rule 16.01, Subd. 5.

(b) Finding of Mental Deficiency. If the tribal court finds the defendant to be mentally deficient so as to be incapable of understanding the criminal proceedings or participating in the defense, and the defendant is under commitment as mentally deficient to the guardianship of the commissioner of public welfare, the tribal court shall order the defendant remanded to the care and custody of the commissioner, and if not under commitment, the tribal court may cause civil commitment proceedings to be instituted against the defendant. The commitment or continuing commitment shall be subject to the supervision of the trial court as provided by Rule 16.01, Subd. 5.

(c) Appeal. Either party shall have the right of appeal to the Court of Appeals from a determination of the probate court upon the civil commitment proceedings. The appeal shall be on the record only pursuant to Rule 24. In all civil commitment proceedings instituted under this rule, a verbatim record of the proceedings shall be made.

Subd. 5. Continuing Supervision by the Tribal Court in Gross Misdemeanor Cases. The head of the institution to which the defendant is committed under civil commitment proceedings, or if the defendant is not committed to an institution, the officer or other person charged with the defendant’s supervision or to whom the defendant has been committed, shall report periodically to the trial court, at such times as the court shall provide, on the defendant’s mental condition with an opinion as to the defendant’s competency to proceed. The reports shall be made not less than once every six months unless otherwise ordered. Copies of the reports shall be furnished to the prosecuting attorney and to defense counsel.

When the tribal court on application of the prosecuting attorney, defense counsel, the defendant, or the person having supervision over the defendant, or on the court’s initiative, determines, after a hearing with notice to the parties, that the defendant is competent to proceed, the criminal proceedings against the defendant shall be resumed. Unless the criminal charges against the defendant have been dismissed as provided by Rule 16.01, Subd. 6, the trial court and the prosecuting attorney shall be notified of any proposed institutional transfer, partial institutionalization status, and any proposed termination, discharge, or provisional discharge of the civil commitment. The prosecuting attorney shall have the right to participate as a party in any proceedings concerning such proposed changes in the defendant’s civil commitment or status.

Subd. 6. Dismissal of Criminal Proceedings. The criminal proceedings shall be dismissed upon the expiration of three years from the date of the finding of the defendant’s incompetency to proceed unless the prosecuting attorney, before the expiration of the three-year period, files a written notice of intention to prosecute the defendant when the defendant has been restored to competency.

Subd. 7. Determination of Legal Issues Not Requiring Defendant’s Participation. The fact that the defendant is incompetent to proceed shall not preclude defense counsel from making any legal objection or defense which is susceptible of fair determination before trial without the personal participation of the defendant.

Subd. 8. Admissibility of Defendant’s Statements. When a defendant is examined under this rule, any statement made by the defendant for the purpose of the examination and any evidence derived from the examination shall be admissible in evidence at the proceedings to determine whether the defendant is competent to proceed.

Subd. 9. Credit for Time Spent in Confinement. If the tribal court orders criminal proceedings resumed on a finding that defendant is competent to proceed, and the defendant is convicted of the charge, the time the defendant has spent confined to a hospital or other facility under this rule shall be credited upon any jail or prison sentence imposed.

Rule 16.02 Medical Examination of Defendant Upon Defense of Mental Deficiency or Mental Illness

Subd. 1. Authority of Tribal Court to Order Examination. The tribal court may order a mental examination of the defendant when the defense has notified the prosecuting attorney pursuant to Rule 9.02, Subd. 1(3)(a) of an intention to assert a defense of mental illness or deficiency, when the defendant in a misdemeanor case pleads not guilty by reason of mental illness or mental deficiency, or when at the trial of the case, the defendant offers evidence of such mental condition.

Subd. 2. Examination of the Defendant. If the tribal court orders a mental examination of the defendant, it shall appoint at least one examiner to examine the defendant and report upon the defendant’s mental condition. For the purpose of the examination, the tribal court, upon a special showing of need therefor, may order the defendant to be confined to a hospital or other suitable facility for a specified period not to exceed 60 days. If the defendant or prosecution has retained an examiner, the court on request of the defendant or prosecuting attorney shall direct that such examiner be permitted to observe the mental examination and to conduct a mental examination of the defendant also.

Subd. 3. Refusal of Defendant to be Examined. If the defendant does not participate in the examination so that the examiner is unable to make an adequate report to the tribal court, the court may prohibit the defendant from introducing evidence of the defendant’s mental condition, may strike any such evidence previously introduced, may permit any other party to introduce evidence of defendant’s refusal to cooperate and to comment thereon to the trier of the facts, and may make any such other ruling as it deems just.

Subd. 4. Report of Examination. At the conclusion of the examination, a written report of the examination shall be forwarded to the judge who ordered the examination, and the tribal court shall cause copies of the report to be delivered forthwith to the prosecuting attorney and to defense counsel. The contents of the report shall not otherwise be disclosed except as hereafter provided by this rule. The report of the examination shall contain:

(1) A diagnosis of the defendant’s mental condition as requested by the tribal court;

(2) If so directed by the tribal court an opinion as to whether, because of mental illness or deficiency, the defendant at the time of the commission of the offense charged was laboring under such a defect of reason as not to know the nature of the act constituting the offense with which defendant is charged or that it was wrong;

(3) Any opinion requested by the tribal court that is based on the examiner’s diagnosis;

(4) A statement of the factual basis upon which the diagnosis and any opinion are based.

If the examination cannot be conducted by reason of the defendant’s unwillingness to participate, the report shall so state and shall include, if possible, an opinion as to whether the unwillingness of the defendant was the result of mental illness or deficiency.

Subd. 5. Admissibility of Evidence at Trial. No evidence derived from the examination shall be received against the defendant unless the defendant has previously made his or her mental condition an issue in the case. If the defendant’s mental condition is an issue, any party may call the person who examined the defendant at the direction of the tribal court to testify as a witness at the trial and that person shall be subject to cross-examination by any other party. The report or portions thereof may be received in evidence to impeach the testimony of the person making it.

Subd. 6. Admissibility of Defendant’s Statements. When a defendant is examined under Rule 16.01 or Rule 16.02, or both, the admissibility at trial of any statements made by the defendant for the purposes of the examination and any evidence obtained as a result of such statements shall be determined by the following rules:

(1) Notice by Defendant of Sole Defense of Mental Condition. If a defendant notifies the prosecuting attorney under Rule 9.02, Subd 1(3)(a) of an intention to rely solely on the defense of mental illness or deficiency or if the defendant in a misdemeanor case relies solely on the plea of not guilty by reason of mental illness or mental deficiency pursuant to Rule 14.01(c), statements made by the defendant for the purpose of the mental examination and evidence obtained as a result of the statements shall be admissible at the trial upon that issue.

(2) Separate Trial of Defenses. If a defendant notifies the prosecuting attorney under Rule 9.02, Subd. 1(3)(a) of an intention to rely on the defense of mental illness or mental deficiency together with a defense of not guilty, or if the defendant in a misdemeanor case pleads both not guilty and not guilty by reason of mental illness or mental deficiency, there shall be a separation of the two defenses with a sequential order of proof before the tribal court or jury in a continuous trial in which the defense of not guilty shall be heard and determined first, and then the defense of the defendant’s mental illness or deficiency.

(3) Effect of Separate Trial. If the defendant relies on the two defenses, the statements made by the defendant for the purpose of the mental examination and any evidence obtained as a result of such statements shall be admissible against the defendant only at that stage of the trial relating to the defense of mental illness or mental deficiency.

(4) Procedure Upon Separated Trial of Defenses.

(a) Instructions to Jury. When the two defenses are separated for trial under this rule, the jury shall be informed at the commencement of the trial that the two defenses have been interposed; that the defense of not guilty will be tried first and then the defense of mental illness or mental deficiency; that if the jury finds that the elements of the offense charged have not been proved, the defendant will be acquitted; that if the jury finds the elements of the offense have been proved, the defense of mental illness or deficiency will then be tried and determined by the jury.

(b) Proof of Elements of Offense—Effect. Upon the trial of the defense of not guilty the jury, or the tribal court, if a jury is waived, shall determine whether the elements of the offense charged have been proved beyond a reasonable doubt.

If the tribal court or jury determines that the elements of the offense have not been proved beyond a reasonable doubt, a judgment of acquittal shall be entered.

If the tribal court or jury determines that the elements of the offense have been proved beyond a reasonable doubt, the defense of mental illness or mental deficiency shall then be tried and determined by the jury, or by the tribal court, if a jury is waived, and based upon that determination the jury or tribal court shall render a verdict or make a finding: (1) of not guilty by reason of mental illness; or (2) of not guilty by reason of mental deficiency; or (3) of guilty. The tribal court shall enter judgment accordingly. The defendant shall have the burden of proving the defense of mental illness or mental deficiency by a preponderance of the evidence.

Subd. 7. Simultaneous Examinations. The tribal court may order that the examination for competency to proceed under Rule 16.01, an examination for civil commitment as mentally ill or mentally deficient, and the examination authorized by Rule 16.02 be conducted simultaneously.

Subd. 8. Legal Effect of Finding of Not Guilty by Reason of Mental Illness or Deficiency.

(1) Mental Illness. When a defendant is found not guilty by reason of mental illness, and the defendant is under civil commitment as mentally ill, the tribal court shall order that the commitment be continued, and if not under commitment, the court may cause civil commitment proceedings to be instituted against the defendant and that the defendant be detained in a state hospital or other facility pending completion of the proceedings. The commitment or continuing commitment in gross misdemeanor cases shall be subject to the supervision of the trial court as provided by Rule 16.02, Subd. 8(4).

(2) Mental Deficiency. When a defendant is found not guilty by reason of mental deficiency and the defendant is under commitment to the guardianship of the commissioner of public welfare, the tribal court shall order the defendant remanded to the care and custody of the commissioner, and if not under such commitment, the court may cause civil commitment proceedings to be instituted against the defendant. The commitment or continuing commitment shall be subject to the supervision of the trial court as provided by Rule 16.02, Subd. 8(4).

(3) Appeal. Either party shall have the right to appeal to the Court of Appeals from a determination of the tribal court upon the civil commitment proceedings. The appeal shall be taken on the record only pursuant to Rule 24. In all commitment proceedings instituted under this rule, a verbatim record of the proceedings shall be made.

(4) Continuing Supervision. In gross misdemeanor cases only, the trial court and the prosecuting attorney shall be notified of any proposed institutional transfer, partial hospitalization status, and any proposed termination, discharge, or provisional discharge of the civil commitment. The prosecuting attorney shall have the right to participate as a party in any proceedings concerning such proposed changes in the defendant’s civil commitment or status.

Rule 16.03. Disclosure of Reports and Records of Defendant’s Mental Examinations.

Subd. 1. Order for Disclosure. If a defendant notifies the prosecuting attorney under Rule 9.02, Subd. 1(3)(a) of an intention to rely on the defense of mental illness or mental deficiency, the trial court, on motion of the prosecuting attorney and notice to defense counsel may order the defendant to furnish either to the court or to the prosecuting attorney copies of all medical reports and hospital and medical records previously or thereafter made concerning the mental condition of the defendant and relevant to the issue of the defense of mental illness or mental deficiency. If the copies of the reports and records are furnished to the court, the court shall inspect them to determine their relevancy. If the court determines they are relevant, they shall be delivered to the prosecuting attorney. Otherwise, they shall be returned to the defendant.

If the defendant is unable to comply with the court order, a subpoena duces tecum may be issued under Rule 18.

Subd. 2. Use of Reports and Records. If an order for disclosure of reports and records under Rule 16.03, Subd. 1 is entered and copies thereof are furnished to the prosecuting attorney, the reports and records and any evidence obtained therefrom may be admitted in evidence only upon the issue of the defense of mental illness or mental deficiency when that issue is the sole defense or when it is tried as provided by Rule 16.02, Subd. 6(4).

RULE 17. DEPOSITIONS

Rule 17.01. When Taken

Whenever there is a reasonable probability that the testimony of a prospective witness will be used at hearing or at trial under any of the conditions specified in Rule 17.06, Subd. 1, the tribal court may, at any time after the filing of a complaint or entry of a tab charge upon the records, upon motion and notice to the parties, order that the testimony of such witness be taken by oral deposition before any designated person authorized to administer oaths and that any designated book, paper, document, record, recording or other material, not privileged, be produced at the same time and place. The order shall also direct the defendant to be present at the taking of the deposition and, if the defendant is handicapped in communication, that a qualified interpreter be present for the defendant.

Rule 17.02. Notice of Taking

The party or person at whose instance a deposition is to be taken shall give to every other party reasonable notice of the time and place for taking the deposition. The notice shall state the name and address of each person to be examined. Unless otherwise ordered by the tribal court the notice to the defendant shall be served personally on all of the defendants. The notice shall inform them that they are required by order of the court to personally attend the taking of the deposition, and a copy of the court order shall be attached to the notice. An officer having custody of any of the defendants shall be notified of the time and place set for the deposition and shall produce them at the examination and keep them in the presence of the witness during the examination.

Rule 17.03. Expenses of Defendant and Counsel; Failure to Appear

Subd. 1. Expenses, Defendant and Counsel. If a defendant is unable to bear the expenses of travel and subsistence of himself or herself and defense counsel for attendance at the examination, the court shall direct that such expenses be paid at public expense.

Subd. 2. Failure to Appear. If a defendant who is not confined fails to appear at the examination without reasonable excuse after having received notice thereof, the deposition may be taken and used to the same extent as though the defendant had been present.

Rule 17.04. How Taken

Subd. 1. Oral Deposition. Depositions shall be taken upon oral examination.

Subd. 2. Oath and Record of Examination. The witness shall be put on oath and a verbatim record of the testimony of the witness shall be made.

The testimony shall be taken stenographically and transcribed unless the tribal court orders otherwise.

In the event the tribal court orders that the testimony at a deposition be recorded by other than stenographic means, the order shall designate the manner of recording, preserving, and filing the deposition, and may include other provisions to assure that the recorded testimony will be accurate and trustworthy. If the order is made, a party may nevertheless arrange to have a stenographic transcription made at that party’s own expense.

Subd. 3. Scope and Manner of Examination—Objections—Motion to Terminate.

(a) In no event shall the deposition of a party defendant be taken without the defendant’s consent.

(b) The scope and manner of examination and cross-examination shall be the same as that allowed at trial. Each party having possession of a statement of the witness being deposed shall make the statement available to the other party for examination and use at the taking of a deposition if such other party would be entitled to the statement at the trial.

(c) All objections made at the time of the examination to the qualifications of the person taking the deposition, or to the manner of taking it, or to the evidence presented, or to the conduct of any party, and any other objection to the proceedings shall be recorded by the person before whom the deposition is taken. Evidence objected to shall be taken subject to the objections.

(d) At any time during the taking of the deposition, on motion of a party or of the deponent, and upon a showing that the examination is being conducted in bad faith, or in such manner as to annoy, embarrass, or oppress the deponent or party or to elicit privileged testimony, the tribal court may order the person conducting the examination to cease forthwith from taking the deposition, or may limit the scope and manner of taking the deposition by ordering as follows: (1) that certain matters not be inquired into, or that the scope of the examination be limited to certain matters; (2) that the examination be conducted with no one present except persons designated by the tribal court.

Upon demand of the objecting party or deponent, the taking of the deposition shall be suspended for the time necessary to move for the order.

Rule 17.05. Transcription, Certification and Filing

When the testimony is fully transcribed, the person before whom the deposition was taken shall certify on the deposition that the witness was duly sworn and that the deposition is a verbatim record of the testimony given by the witness. Such person shall then securely seal the deposition in an envelope endorsed with the title of the case and marked "Deposition of (here insert name of witness)" and shall promptly file it with the tribal court in which the case is pending or send it by registered or certified mail to the clerk thereof for filing.

Upon the request of a party, documents and other things produced during the examination of a witness, or copies thereof, shall be marked for identification and annexed as exhibits to the deposition, and may be inspected and copied by any party. If the person producing the exhibits requests their return, the person taking the deposition shall mark them, and, after giving each party an opportunity to inspect and copy them, return the exhibits to the parties producing them. The exhibits may then be used in the same manner as if annexed to the deposition.

Rule 17.06. Use of Deposition

Subd. 1. Unavailability of Witness. At the trial, or upon any hearing, a part or all of a deposition, so far as otherwise admissible, under the rules of evidence, may be used as substantive evidence if it appears: (a) that the witness is dead or unable to be present to testify at the trial or hearing because of then existing physical or mental illness or infirmity; or (b) that the party offering the deposition has been unable to procure the attendance of the witness by subpoena, order of court, or other reasonable means.

Subd. 2. Inconsistent Testimony. A deposition may be used as substantive evidence if the witness gives testimony at the trial or hearing inconsistent with the deposition or if the witness persists at the hearing or trial in refusing to testify despite an order of the court to do so.

Subd. 3. Impeachment. Any deposition may also be used by any party for the purpose of contradicting or impeaching the testimony of the deponent as a witness.

A deposition may not be used if it appears that the absence of the witness was procured or caused by the party offering the deposition, unless part of the deposition has previously been offered by another party.

Rule 17.07. Effect of Errors and Irregularities in Depositions

Subd. 1. As to Notice. All errors and irregularities in the order or notice for taking a deposition are waived unless written objection is served promptly upon the party giving the notice.

Subd. 2. As to Disqualification of Officer. Objection to taking a deposition because of disqualification of the person before whom it is to be taken is waived unless made before the taking of the deposition begins or as soon thereafter as the grounds for disqualification become known or could be discovered with reasonable diligence.

Subd. 3. As to Taking of Deposition. Objections to the competency, relevancy, or materiality of testimony are not waived by failure to make them before or during the taking of the deposition unless the ground of the objection is one which might have been obviated or removed if presented at that time.

Subd. 4. As to Completion and Return of Deposition. Errors and irregularities in the manner in which the testimony is transcribed or the deposition is prepared, recorded, certified, sealed, endorsed, transmitted, filed or otherwise dealt with by the person taking the deposition under these rules are waived unless a motion to suppress the deposition or some part thereof is made with reasonable promptness after such defect is, or with due diligence might have been, ascertained.

Rule 17.08 Deposition by Stipulation

The parties may by written stipulation provide that depositions may be taken before any person, at any time or place, upon any notice, and in any manner, and when so taken may be used like other depositions. These rules to the extent not inconsistent with the stipulation shall otherwise govern the taking of the deposition.

RULE 18. SUBPOENA

Rule 18.01. For Attendance of Witnesses; Form; Issuance

Subd. 1. A subpoena may be issued in a criminal proceeding only for the attendance of a witness at a hearing or trial before the tribal court, or for attendance at the taking of a deposition.

Subd. 2. By Whom Issued. A subpoena shall be issued by the clerk under the seal of the tribal court. It shall state the name of the court and the title of the proceeding if the subpoena be for a hearing or a trial before the court. The subpoena shall command each person to whom it is directed to attend and give testimony at the time and place specified therein. The clerk shall issue a subpoena, or a subpoena for the production of documentary evidence or tangible things, signed and sealed but otherwise in blank to the party requesting it, who shall fill in the blanks before it is served.

Subd. 3. Unrepresented Defendant. A subpoena shall not be issued at the request of a defendant not represented by counsel without an order of court authorizing its issuance. The defendant’s request to the tribal court may be oral and the court’s order may be either oral, if noted in the court’s record, or written.

Rule 18.02 For Production of Documentary Evidence and of Objects

A subpoena may also command the person to whom it is directed to produce the books, papers, documents or other objects designated therein. The tribal court on motion made properly may quash or modify the subpoena if compliance would be unreasonable or oppressive. The tribal court may direct that books, papers, documents or objects designated in the subpoena, including medical reports and medical and hospital records ordered to be disclosed under Rule 16.03, Subd. 1, be produced before the court at a time prior to the trial or prior to the time when they are to be offered in evidence and may upon their production permit them to be inspected by the parties or their attorneys.

Rule 18.03. Service

A subpoena may be served by the sheriff, by a deputy sheriff, or any other person at least 18 years of age who is not a party. Service of a subpoena upon a person named therein shall be made by delivering a copy thereof to such person or by leaving a copy at the person’s usual place of abode with some person of suitable age and discretion then residing therein. Additionally, a subpoena may be served by U.S. mail, but such service is effective only if the person named therein returns a signed admission acknowledging personal receipt of the subpoena. Fees and mileage need not be tendered in advance.

Rule 18.04 Place of Service

A subpoena requiring the attendance of a witness may be served at any place, regardless of the fact that it is not within the boundaries of the White Earth Reservation or the State of Minnesota.

Rule 18.05. Contempt

Failure to obey a subpoena without adequate excuse is a contempt of court.

Rule 18.06. Witness Outside the State

The attendance of a witness who is outside the boundaries of the White Earth Reservation or the State of Minnesota may be secured as provided by law.

RULE 19. PETTY MISDEMEANORS AND VIOLATIONS BUREAUS

Rule 19.01. Definition of Petty Misdemeanor

As used in these rules, petty misdemeanor means a misdemeanor offense punishable only by fine of not more than $100 or such other dollar amount as is established by the White Earth Band of Chippewa Indians as the maximum fine for a petty misdemeanor.

Rule 19.02. Designation as Petty Misdemeanor by Sentence Imposed

A conviction is deemed to be for a petty misdemeanor as defined by Rule 19.01 if the sentence imposed is within the limits provided by that rule for a petty misdemeanor.

Rule 19.03. Violations Bureaus

Subd. 1. Establishment. The tribal court may establish misdemeanor violations bureaus at the places it determines.

Subd. 2. Fine Schedules. Upon the establishment of a violations bureau, the tribal court judges shall adopt and as necessary revise a uniform fine schedule setting forth fines for all statutory petty misdemeanors and for such other statutory misdemeanors as the judges may select which may be paid to the violations bureau in lieu of a court appearance by the defendant.

Subd. 3. Fine Payment. A defendant shall be advised in writing before paying a fine to a violations bureau that such a payment constitutes a plea of guilty to the misdemeanor designated and an admission that the defendant understands that the defendant has the rights which the defendant voluntarily waives:

a. to a trial to the tribal court or to a jury;

b. to be represented by counsel;

c. to be presumed innocent until proven guilty beyond a reasonable doubt;

d. to confront and cross-examine all prosecution witnesses; and

e. to either remain silent or to testify for the defense.

Subd. 4. Functions of Violations Bureau. The violations bureau shall process all citations for misdemeanors included on the uniform fine schedule, accept all fines payable on such citations at the bureau, set dates for arraignments on such citation charges to be heard in tribal court, accept bail, keep proper records and accounts and perform such other duties as the court prescribes.

Subd. 5. Procedures of the Violations Bureau. The tribal court shall supervise and the clerk shall operate the misdemeanor violations bureau. The tribal court shall, consistent with these rules, issue rules governing the duties and operation of the bureaus. The clerk shall assign one or more deputy clerks to discharge and perform the duties of the bureaus.

Rule 19.04. Designation as a Petty Misdemeanor in a Particular Case

If at or before the time of arraignment or trial on an alleged misdemeanor violation, the prosecuting attorney certifies to the tribal court that in the prosecuting attorney’s opinion it is in the interests of justice that the defendant not be incarcerated if convicted, the alleged offense shall be treated as a petty misdemeanor if the defendant consents and the tribal court approves.

Rule 19.05. Procedure in Petty Misdemeanor Cases

Subd. 1. No Right to Jury Trial. There shall be no right to a jury trial upon a misdemeanor charge which by operation of Rule 19.04 is to be treated as a petty misdemeanor.

Subd. 2. Right to Appointed Counsel. The tribal court shall not appoint counsel to represent such a defendant who is charged with a misdemeanor which by operation of Rule 19.04 is to be treated as a petty misdemeanor.

Subd. 3. General Procedure. A defendant charged with a petty misdemeanor violation is presumed innocent until proven guilty beyond a reasonable doubt and except as otherwise provided in Rule 19 the procedure in petty misdemeanor cases shall be the same as for misdemeanors punishable by incarceration.

Rule 19.06. Effect of Conviction

A petty misdemeanor shall not be considered a crime.

RULE 20. [RESERVED FOR FUTURE USE]

RULE 21. SPECIAL RULES GOVERNING PREJUDICIAL PUBLICITY

The following rules shall govern when any question of potentially prejudicial publicity is raised:

Rule 21.01. Pretrial Hearings—Motion to Exclude Public

The following rules shall govern the issuance of any court order excluding the public from any pretrial hearing and restricting access to any transcripts or court orders developed from such closed pretrial hearings.

Subd. 1. Grounds for Exclusion of Public. All pretrial hearings shall be open to the public. However, all or part of such hearing may be closed to the public on motion of the defendant or the prosecuting attorney or on the court’s initiative on the ground that dissemination of evidence or argument adduced at the hearing may interfere with an overriding interest including that it may disclose matters that may be inadmissible in evidence at the trial and likely to interfere with a fair trial by an impartial jury. The motion shall not be granted unless the court determines that there is a substantial likelihood of such interference. In determining the motion the court shall consider reasonable alternatives to closing the hearing and the closure shall be no broader than is necessary to protect the overriding interest involved.

Subd. 2. Notice to Adverse Counsel. If, prior to trial, counsel for either the prosecution or the defense has evidence that counsel believes may be the subject of an exclusionary order, counsel has a duty first to advise opposing counsel of that fact and suggest that both counsel meet privately with the presiding judge in closed court and disclose to the court the problem. If counsel for either side refuses to meet with the court, the court may order counsel to be present in closed court.

Subd. 3. Meeting in Closed Court and Notice of Hearing. In closed court the court shall review the evidence outlined by counsel that may be the subject of a restrictive order. If the court feels that any of the proffered evidence may properly be the subject for a restrictive order, the court shall immediately docket a notice of hearing on a motion for a restrictive order made by either counsel or by the court. Such notice shall be docketed in at least 24 hours before the hearing and shall be reasonably calculated to afford the public and the news media with an opportunity to be heard on whether the overriding interest claimed justifies closing the hearing to the public and the news media.

Subd. 4. Hearing. At the hearing held pursuant to such notice, the trial court shall advise all present that evidence has been disclosed to it that may be the subject of a closure order and shall give the public and the news media an opportunity to suggest any alternatives to a restrictive order.

Subd. 5. Findings of Fact. No exclusion order shall issue without the court setting forth the reasons therefor in written findings of fact. Such findings must include a review of alternatives to closure and a statement of why the court believes such alternatives are inadequate. Any matter to be decided which does not present the risk of revealing inadmissible, prejudicial information shall be decided openly and on the record.

Subd. 6. Records. Whenever under this rule all or part of any pretrial hearing is closed to the public, a complete record of those proceedings shall be made and upon request shall be transcribed at public expense and filed and shall be available to the public following the completion of the trial or disposition of the case without trial. For the protection of innocent persons, the court may order that names be deleted or substitutions be made therefor in the record.

Subd. 7. Appellate Review. Anyone represented at the hearing or aggrieved by an order granting or denying an exclusion or restrictive order under this rule may petition the Court of Appeals for review, which shall be the exclusive method for obtaining review.

The Court of Appeals shall determine upon the hearing record whether the moving party sustained the burden of justifying the order under the conditions specified in this rule, and may reverse, affirm, or modify the order issued.

Rule 21.02. Restrictive Orders

Except as provided in Rules 21.01, 22.03, Subd. 6, and 28.04, the following rule shall govern the issuance of any court order restricting public access to public records relating to a criminal proceeding:

Subd. 1. Motion and Notice.

(a) A restrictive order may be issued only upon motion and after notice and hearing.

(b) Notice of the hearing shall be given in the time and manner and to such interested persons, including the news media, as the court may direct, provided that the notice shall be docketed at least 24 hours before the hearing and shall be reasonably calculated to afford the public and the news media with an opportunity to be heard on the matter.

Subd. 2. Hearing.

(a) At the hearing, the moving party shall have the burden of establishing a factual basis for the issuance of the order under the conditions specified in Subd. 3.

(b) The public and news media shall have a right to be represented at the hearing and to present evidence and arguments in support of or in opposition to the motion and to suggest any alternatives to the restrictive order.

(c) A verbatim record shall be made of the hearing.

Subd. 3. Grounds for Restrictive Order. The court may issue a restrictive order under this rule only if the court concludes on the basis of the evidence presented at the hearing that:

(a) Access to such public records will present a substantial likelihood of interfering with the fair and impartial administration of justice.

(b) All reasonable alternatives to the restrictive order are inadequate.

The restrictive order shall be no broader than is necessary to protect against the potential interference with the fair and impartial administration of justice.

Subd. 4. Findings of Fact. The Court shall make written findings of the facts and statement of the reasons supporting the conclusions upon which an order granting or denying the motion is based. If the restrictive order is granted, the findings of fact shall include a review of the alternatives to the restrictive order and a statement of why the Court believes such alternatives to be inadequate.

Subd. 5. Appellate Review.

(a) Anyone represented at the hearing or aggrieved by an order granting or denying a restrictive order may petition the Court of Appeals for review, which shall be the exclusive method for obtaining review.

(b) The Court of Appeals shall determine upon the hearing record whether the moving party sustained the burden of justifying the restrictive order under the conditions specified in Subd. 3. of this rule, and the Court of Appeals may reverse, affirm, or modify the order issued.

RULE 22. TRIAL

Rule 22.01. Trial by Jury or by the Court

Subd. 1. Trial by Jury.

(1) Right to Jury Trial.

(a) Offenses Punishable by Incarceration. A defendant shall be entitled to a jury trial in any prosecution for an offense punishable by incarceration. All trials shall be in the tribal court.

(b) Misdemeanors Not Punishable by Incarceration. In any prosecution for the violation of a misdemeanor not punishable by incarceration, trial shall be to the court.

(2) Waiver of Trial by Jury.

(a) Waiver Generally. The defendant, with the approval of the court may waive jury trial provided the defendant does so personally in writing or orally upon the record in open court, after being advised by the court of the right to trial by jury and after having had an opportunity to consult with counsel.

(b) Waiver When Prejudicial Publicity. The defendant shall be permitted to waive jury trial whenever it is determined that (a) the waiver has been knowingly and voluntarily made, and (b) there is reason to believe that, as the result of the dissemination of potentially prejudicial material, the waiver is required to assure the likelihood of a fair trial.

(3) Withdrawal of Waiver of Jury Trial. Waiver of jury trial may be withdrawn by the defendant at any time before the commencement of trial.

(4) Waiver of Number of Jurors Required by Law. At any time before verdict, the parties, with the approval of the court, may stipulate that the jury shall consist of a lesser number than that provided by law. The court shall not approve such a stipulation unless the defendant, after being advised by the court of the right to trial by a jury consisting of the number of jurors provided by law, personally in writing or orally on the record in open court agrees to trial by such reduced jury.

(5) Number Required for Verdict. A unanimous verdict shall be required in all cases.

(6) Waiver of Unanimous Verdict. At any time before verdict, the parties, with the approval of the court, may stipulate that the jury may render a verdict on the concurrence of a specified number of jurors less than that required by law or these rules. The court shall not approve such a stipulation unless the defendant, after being advised by the court of the right to a verdict on the concurrence of the number of jurors specified by law, personally in writing or orally on the record waives the right to such a verdict.

Subd. 2. Trial Without a Jury. In a case tried without a jury, the court, within 7 days after the completion of the trial, shall make a general finding of guilty, not guilty, or if such pleas have been made, a general finding of not guilty by reason of mental illness or mental deficiency, double jeopardy, or that prosecution is barred by the White Earth Band Criminal Code, if appropriate. The court, within 7 days after the general finding in gross misdemeanor cases, shall in addition specifically find the essential facts in writing on the record. In misdemeanor and petty misdemeanor cases, such findings shall be made within 7 days after the filing of the notice of appeal. If an opinion or memorandum of decision is filed, it is sufficient if the findings of fact appear therein. If the court omits a finding on any issue of fact essential to sustain the general finding, it shall be deemed to have made a finding consistent with the general finding.

By agreement of the defendant and the prosecuting attorney, a case may be submitted to and tried by the court based on stipulated facts. Before proceeding in this manner, the defendant shall acknowledge and waive the rights to testify at the trial, to have the prosecution witnesses testify in open court in the defendant’s presence, to question those prosecution witnesses, and to require any favorable witnesses to testify for the defense in court. The agreement and the waiver shall be in writing or orally on the record. Upon submission of the case on stipulated facts, the court shall proceed as on any other trial to the court. If the defendant is found guilty based on the stipulated facts, the defendant may appeal from the judgment of conviction and raise issues on appeal the same as from any trial to the court.

Rule 22.02. Selection of Jury

Subd. 1. Selection and Qualifications. The jury list shall be composed of the names of persons enrolled on the White Earth Reservation who reside within the exterior boundaries of the reservation and who are qualified by law to serve as jurors and shall otherwise be selected as provided by law. The jury shall be drawn from the jury list and summoned, as prescribed by law.

Subd. 2. List of Prospective Jurors. Upon request the clerk of court shall furnish the parties with a list of the names and addresses of the persons on the jury panel. The parties shall also have access to such other information as the clerk has obtained from prospective jurors.

Subd. 3. Challenge to Panel. Either party may challenge the jury panel on the ground that there has been a material departure from the requirements of law governing the selection, drawing or summoning of the jurors. The challenge shall be in writing, specifying the facts constituting the grounds of the challenge, and shall be made before a jury is sworn. If the opposing party objects to either the sufficiency of the challenge or the facts on which it is based, the court shall hear and determine the challenge.

Subd. 4. Voir Dire Examination.

(1) Purpose—By Whom Made. A voir dire examination shall be conducted for the purpose of discovering bases for challenge for cause and for the purpose of gaining knowledge to enable an informed exercise of peremptory challenges, and shall be open to the public. The judge shall initiate the voir dire examination by identifying the parties and their respective counsel and by briefly outlining the nature of the case. The judge shall then put to the prospective juror or jurors any questions which the judge thinks necessary touching their qualifications to serve as jurors in the case on trial and may give such preliminary instructions as are set forth in Rule 22.03, Subd. 4. Before exercising challenges, either party may make a reasonable inquiry of a prospective juror or jurors in reference to their qualifications to sit as jurors in the case. A verbatim record of the voir dire examination shall be made at the request of either party.

(2) Sequestration of Jurors.

(a) Court’s Discretion. In the discretion of the court the examination of each juror may take place outside the presence of other chosen and prospective jurors.

(b) Prejudicial Publicity. Whenever there is a significant possibility that individual jurors will be ineligible to serve because of exposure to prejudicial material, the examination of each juror with respect to the juror’s exposure shall take place outside the presence of other chosen and prospective jurors.

(3) Order of Drawing, Examination and Challenge.

(a) Uniform Rule. Jurors shall be drawn, examined, and challenged as follows:

1. The court shall first direct that such a number of the members of the jury panel be drawn and called as will equal the number of which the jury shall be composed for trial of the case plus the number of peremptory challenges available to all the parties and the number of any alternate jurors.

2. The prospective jurors so drawn and called shall take their place in the jury box and be sworn to answer truthfully to the questions asked them relative to their qualifications to serve as jurors in the case.

3. The prospective jurors shall be examined as to their qualifications, first by the court, then by the parties, commencing with the defendant.

4. A challenge for cause may be made at any time during voir dire by any party. At the close of voir dire any additional challenges for cause shall be made, first by the defense and then by the prosecution.

5. If any prospective juror is challenged and excused for cause another shall be drawn from the jury panel so that the number in the jury box will remain equal to the number initially called.

6. After both parties have had an opportunity to challenge for cause, each, commencing with the defendant, may exercise alternately the peremptory challenges permitted by these rules.

7. When the peremptory challenges have been exercised, the jury shall be selected from the remaining prospective jurors in the order in which they were called until the number selected equals the number of which the jury shall be composed for trial of the case plus the alternate jurors, if any.

(b) By Order of Court. The court may order that the jurors be drawn, examined, and challenged as provided by Rule 22.02, Subd. 4(3)(b) or (c) as follows:

1. The court shall first direct that such a number of the members of the jury panel be drawn and called as will equal the number of which the jury shall be composed for trial of the case plus the number of any alternate jurors.

2. The prospective jurors so drawn and called shall take their place in the jury box and be sworn to answer truthfully questions asked them relative to their qualifications, first by the court, then by the parties, commencing with the defendant.

3. The prospective jurors shall be examined as to their qualifications, first by the court, then by the parties, commencing with the defendant.

4. Upon completion of defendant’s examination of a prospective juror, the defendant shall be permitted to exercise a challenge for cause or a peremptory challenge as permitted by these rules as to that juror. A juror who is excused shall be replaced by another member of the panel. The replacement juror shall be examined and challenged after previously drawn jurors have been examined and challenged.

5. Upon completion of the examination and any challenge of each prospective juror by the defendant, the prosecution may examine such prospective juror and may challenge the juror for cause or peremptorily. A juror who is excused shall be replaced by another member of the panel who shall be subject to examination and challenge in accordance with this rule.

6. This process of jury selection shall continue until the number of persons of which the jury shall be composed for trial of the case plus any alternate jurors is selected and sworn as the trial jury.

(c) By Order of Court.

1. The court shall direct that one prospective juror at a time be drawn from the jury panel for examination.

2. The prospective juror so drawn shall be sworn to answer truthfully questions asked relative to the prospective juror’s qualifications to serve as a juror in the case.

3. The prospective juror shall be examined by the court and then by the parties, commencing with the defendant.

4. Upon completion of defendant’s examination, the defendant may challenge the juror for cause or peremptorily as permitted by these rules.

5. If the juror is excused, another prospective juror shall be drawn from the panel and shall be examined and subject to challenge in the same manner.

6. A prospective juror who is not excused after examination by the defendant may be examined by the prosecution and may be challenged for cause or peremptorily by the prosecution.

7. This process of selection shall continue until the number of persons of which the jury shall be composed for trial of the case is selected and sworn as the trial jury plus the number of any alternate jurors.

Subd. 5. Challenge for Cause.

(1) Grounds. A juror may be challenged for cause by either party upon the following grounds:

1. The existence of a state of mind on the part of the juror, in reference to the case or to either party, which satisfies the court that the juror cannot try the case impartially and without prejudice to the substantial rights of the party challenging.

2. A felony conviction unless the juror’s civil rights have been restored.

3. The lack of any of the qualifications prescribed by law to render a person a competent juror.

4. A physical or mental defect which renders the juror incapable of performing the duties of a juror.

5. The consanguinity or affinity, within the ninth degree, to the person alleged to be injured by the offense charged, or to the person on whose complaint the prosecution was instituted, or to the defendant, or to any of the attorneys in the case.

6. Standing in relation of guardian and ward, attorney and client, employer and employee, landlord and tenant, or being a member of the family of the defendant, or of the person alleged to be injured by the offense, or on whose complaint the prosecution was instituted.

7. Being a party adverse to the defendant in a civil action, or having complained against, or been accused by the defendant, in a criminal prosecution.

8. Having served on a trial jury which has tried another person for the same or a related offense to that charged in the complaint or tab charge or a related complaint or tab charge.

9. Having been a member of a jury formerly sworn to try the same complaint or tab charge or a related complaint or tab charge.

10. Having served as a juror in any case involving the defendant.

(2) How And When Exercised. A challenge for cause may be oral and shall state the grounds on which it is based. The challenge shall be made before the juror is sworn to try the case, but the court for good cause shown may permit it to be made after the juror is sworn but before all the jurors constituting the jury are sworn. If a challenge for cause is made and the court sustains the challenge, the juror shall be excused.

(3) By Whom Tried. If the opposing party objects to the sufficiency of a challenge for cause or the facts on which it is based, all issues of law or fact arising upon the challenge shall be tried and determined by the court.

Subd. 6. Peremptory Challenges. The defendant shall be entitled to five and the prosecution to three peremptory challenges. If there is more than one defendant, the court may allow the defendants additional peremptory challenges and permit them to be exercised separately or jointly, and in that event the prosecution’s peremptory challenges shall be correspondingly increased. All peremptory challenges shall be exercised out of the hearing of the jury panel.

Subd. 7. Order of Challenges to the Panel and to Individual Jurors.

Challenges to the panel and to individual jurors shall be made in the following order:

(a) To the panel.

(b) To an individual juror for cause.

(c) Peremptory challenge to an individual juror.

Subd. 8. Alternate Jurors. A trial judge may impanel alternate or additional jurors whenever in the judge’s discretion, the judge believes it advisable to have such jurors available to replace jurors who, prior to the time the jury retires to consider its verdict, become unable or disqualified to perform their duties. An alternate juror who does not replace a principal juror shall be discharged after the jury retires to consider its verdict. Alternate jurors, in the order in which they are called, shall replace jurors who prior to the time the jury retires to consider its verdict, become unable or disqualified to perform their duties. Alternate jurors shall be drawn in the same manner, have the same qualifications, and be subject to the same examination and challenges for cause as the regular jurors. No additional peremptory challenges shall be allowed for alternate jurors except that unused peremptory challenges for the regular jury may be exercised against alternate jurors. If a juror becomes unable or disqualified to perform a juror’s duties after the jury has retired to consider its verdict, a mistrial shall be declared unless the parties agree pursuant to Rule 22.01, Subd. 1(4) that the jury shall consist of a lesser number than that selected for the trial.

Rule 22.03. Procedures During Trial

Subd. 1. Presence of Defendant.

(1) Presence Required. The defendant shall be present at the arraignment, at the time of the plea, at every stage of the trial including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, except as otherwise provided by these rules. If the defendant is handicapped in communication, a qualified interpreter for that defendant shall also be present at each of these proceedings.

(2) Continued Presence Not Required. The further progress of a trial to and including the return of the verdict shall not be prevented and the defendant shall be considered to waive the right to be present whenever:

(a) a defendant voluntarily and without justification absents himself or herself after trial has been commenced; or

(b) a defendant after warning engages in conduct which is such as to justify being excluded from the courtroom because it tends to interrupt the orderly procedure of the court and due course of the trial. As an alternative to exclusion, the court may use all such methods of restraint as will ensure the orderly procedure of the court and the due course of the trial.

(3) Presence Not Required. A defendant need not be present in the following situations:

(a) a corporation may appear by counsel for all purposes;

(b) in the case of gross misdemeanors, on defendant’s motion, the court may excuse the defendant from attendance at any proceeding except arraignment, plea, trial, and imposition of sentence; and

(c) in prosecutions for misdemeanors, the court shall permit arraignment and plea in the defendant’s absence if the court is satisfied that the defendant has knowingly and voluntarily waived the right to be present. The court with the written consent of the defendant, or the defendant’s oral consent in open court, may permit trial, and imposition of sentence in the defendant’s absence.

(d) The court in its discretion and upon agreement of the defendant may allow the participation by telephone of one or more parties, counsel, or the judge in any proceedings in which the defendant would otherwise be permitted to waive personal appearance under these rules.

Subd. 2. Custody and Restraint of Defendants and Witnesses.

(a) During the trial the defendant shall be seated so as to effectively consult with defense counsel and to see and hear the proceedings.

(b) An incarcerated defendant or witness shall not appear in court in the distinctive attire of a prisoner.

(c) Defendants and witnesses shall not be subjected to physical restraint while in court unless the trial judge has found such restraint reasonably necessary to maintain order or security. A trial judge who orders such restraint shall state the reasons on the record outside the presence of the jury. Whenever physical restraint of a defendant or witness occurs in the presence of jurors trying the case, the judge shall on request of the defendant instruct those jurors that such restraint is not to be considered in assessing the proof and determining guilt.

Subd. 3. Use of Courtroom. Whenever appropriate in view of the notoriety of the case or the number or conduct of news media representatives present at any judicial proceeding, the court shall ensure the preservation of decorum by instructing those representatives and others as to the permissible use of the courtroom and other facilities of the court, the assignment of seats to news media representatives on an equitable basis, and other matters that may affect the conduct of the proceeding.

Subd. 4. Preliminary Instructions. After the jury has been impaneled and sworn, and before the opening statements of counsel, the court may instruct the jury as to the respective claims of the parties and as to such other matters as will aid the jury in comprehending the trial procedure and sequence to be followed. Preliminary instructions may also include such matters as burden of proof, presumption of innocence, the necessity of proof of guilt beyond a reasonable doubt, the elements which the jury may consider in weighing testimony or determining credibility of witnesses, rules applicable to opinion evidence, and such other rules of law, including the essential elements of the offense, as the court may deem essential to the proper understanding of evidence. Such preliminary instructions shall be disclosed to the parties before they are given and either party may object to any specific instruction or propose other instructions be given prior to trial.

Subd. 5. Sequestration of the Jury.

(1) In the Discretion of the Court. During the period from the time the jurors are sworn until they retire for deliberation upon their verdict, the court, in its discretion, may either permit them and any alternate jurors to separate during recesses and adjournments or direct that they be continuously kept together during such period under the supervision of proper officers. With the consent of the defendant the court, in its discretion, may allow the jurors to separate over night during deliberation. The officers shall not speak to or communicate with any juror concerning any subject connected with the trial nor permit any other person to do so, and shall return the jury to the courtroom at the next designated trial session.

(2) On Motion. Either party may move for sequestration of the jury at the beginning of trial or at any time during the course of the trial. Sequestration shall be ordered if it is determined that the case is of such notoriety or the issues are of such a nature that, in the absence of sequestration, highly prejudicial matters are likely to come to the attention of the jurors. Whenever sequestration is ordered, the court in advising the jury of the decision shall not disclose which party requested sequestration.

Subd. 6. Exclusion of the Public From Hearings or Arguments Outside the Presence of the Jury. The following rules shall govern the issuance of any court order excluding the public from any portion of the trial that takes place outside the presence of the jury and restricting access to any transcripts or orders developed from such closed portions of the trial:

(1) Grounds for Exclusion of Public. If the jury is not sequestered, the court on its initiative or on motion of the defendant or the prosecuting attorney may order that the public be excluded from any portion of the trial that takes place outside the presence of the jury on the ground that dissemination of evidence or argument adduced at the hearing may interfere with an overriding interest including that it is likely to interfere with a fair trial by an impartial jury. The motion shall not be granted unless it is determined that there is a substantial likelihood of such interference. In determining the motion the court shall consider reasonable alternatives to closing such portion of the trial and the closure shall be no broader than is necessary to protect the overriding interest involved.

(2) Notice to Adverse Counsel. If, during trial, counsel for either the prosecution or the defense has evidence that counsel believes may be the subject of an exclusionary order, counsel has a duty first to advise opposing counsel of that fact and suggest that both counsel meet privately with the presiding judge in closed court and disclose to the court the problem. If counsel for either side refuses to meet with the court, the court may order counsel to be present in closed court.

(3) Meeting in Closed Court and Notice of Hearing. In closed court the court shall review the evidence outlined by counsel that may be the subject of a restrictive order. If the court feels that any of the proffered evidence may properly be the subject for a restrictive order, the court shall immediately docket a notice of hearing on the court’s initiative or on a motion for a restrictive order made by either counsel. Such notice shall be docketed at least 24 hours before the hearing and shall be reasonably calculated to afford the public and the news media with an opportunity to be heard on whether the overriding interest claimed justifies the hearing to the public and the news media.

(4) Hearing. At the hearing held pursuant to such notice, the trial court shall advise all present that evidence has been disclosed to it that may be the subject of a closure order and shall give the public and the news media an opportunity to suggest any alternatives to a restrictive order.

(5) Findings of Fact. No exclusion order shall issue without the court setting forth the reasons therefor in written findings of fact. Such findings must include a review of alternatives to closure and a statement of why the court believes such alternatives are inadequate. Any matter to be decided which does not present the risk of revealing inadmissible, prejudicial information shall be decided openly and on the record.

(6) Records. Whenever under this rule part of the proceedings are closed to the public, a complete record of those proceedings shall be made and upon request shall be transcribed at public expense and filed and shall be available to the public following the completion of the trial. For the protection of innocent persons, the court may order that names be deleted or substitutions therefore be made in the record.

(7) Appellate Review. Anyone represented at the hearing or aggrieved by an order granting or denying an exclusion or restrictive order under this rule may petition the Court of Appeals for review, which shall be the exclusive method for obtaining review.

The Court of Appeals shall determine upon the hearing record whether the moving party sustained the burden of justifying the order under the conditions specified in this rule, and may reverse, affirm, or modify the order issued.

Subd. 7. Cautioning Parties, Witnesses, Jurors and Judicial Employees; Insulating Witnesses. Whenever appropriate, the court shall order attorneys, parties, witnesses, jurors, and employees and officers of the court not to make extra-judicial statements relating to the case or the issues in the case for dissemination by any means of public communication during the course of the trial.

Witnesses may be sequestered or excluded from the courtroom, prior to their appearance, in the discretion of the court.

Subd. 8. Admonitions to Jurors. Appropriate admonitions shall be given to the jury during the trial not to read, listen to, or watch reports about the case appearing in the news media.

Subd. 9. Questioning Jurors About Exposure to Potentially Prejudicial Material in the Course of a Trial. If it is determined that material disseminated outside the trial proceedings raises serious questions of possible prejudice, the court may on its initiative and shall on motion of either party question each juror, out of the presence of the others, about the juror’s exposure to that material. The examination shall take place in the presence of counsel, and a verbatim record of the examination shall be kept.

Subd. 10. View by Jury.

(a) When the court is of the opinion that a viewing by the jury of the place where the offense being tried was committed, or any other place involved in the case, will be helpful to the jury in determining any material factual issue, it may in its discretion, at any time before the closing arguments, order that the jury be conducted to such place.

(b) The jury must be kept together during the viewing under the supervision of a proper officer appointed by the court. The judge and a court reporter must be present, and with the judge’s permission any other person may be present. The prosecuting attorney, the defendant and defense counsel may as a matter of right be present, but the right may be waived.

(c) The purpose of the viewing shall be solely to permit visual observation by the jury of the place in question, and neither the parties, counsel, nor the jurors while viewing the place may engage in discussion concerning the significance or implications of anything under observation or concerning any issue in the case.

Subd. 11. Order of Jury Trial. The order of a jury trial shall be substantially as follows:

(a) The jury shall be selected and sworn.

(b) The court may deliver preliminary instructions to the jury.

(c) The prosecuting attorney may make an opening statement to the jury, confining the statement to the facts the prosecuting attorney expects to prove.

(d) The defendant may make an opening statement to the jury, or may make it immediately before offering evidence in defense. The statement shall be confined to a statement of the defense and the facts the defendant expects to prove in support thereof.

(e) The prosecution shall offer evidence in support of the complaint or tab charge.

(f) The defendant may offer evidence in defense.

(g) The prosecution may offer evidence in rebuttal of the defense evidence, and the defendant may then offer evidence in rebuttal of the prosecution’s rebuttal evidence. In the interests of justice, the court may permit either party to offer evidence upon the party’s original case.

(h) At the conclusion of the evidence, the prosecution may make a closing argument to the jury.

(i) The defendant may then make a closing argument to the jury.

(j) On the motion of the prosecution, the court may permit the prosecution to reply in rebuttal if the court determines that the defense has made in its closing argument a misstatement of law or fact or a statement that is inflammatory or prejudicial. The rebuttal must be limited to a direct response to the misstatement of law or fact or the inflammatory or prejudicial statement.

(k) The court shall charge the jury.

(l) The jury shall retire for deliberation and, if possible, render a verdict.

Subd. 12. Note Taking. Jurors may take notes of the evidence presented at the trial and may keep these notes with them when they retire for deliberation.

Subd. 13. Substitution of Judge.

(1) Before or During Trial. If by reason of death, sickness or other disability, the judge before whom pretrial proceedings or a jury trial has commenced is unable to proceed, any other judge sitting in or assigned to the court, upon certification of familiarity with the record of proceedings or trial, may proceed with and finish the proceedings or trial.

(2) After Verdict or Finding of Guilt. If by reason of absence, death, sickness or other disability, the judge before whom the defendant has been tried is unable to perform the duties to be performed by the court after a verdict or finding of guilt, any other judge sitting in or assigned to the court may perform those duties; but if such other judge is satisfied that those duties cannot be performed because of not presiding at the trial, such judge may grant a new trial.

(3) Interest or Bias of Judge. No judge shall preside over a trial or other proceeding if that judge is disqualified. A request to disqualify a judge for cause shall be heard and determined by the chief judge or the assistant chief judge if the chief judge is the subject of the request.

(4) Notice to Remove. The defendant or the prosecuting attorney may serve on the other party and file with the court administrator a notice to remove the judge assigned to a trial or hearing. The notice shall be served and filed within seven (7) days after the party receives notice of which judge is to preside at the trial or hearing, but not later than the commencement of the trial or hearing. No notice to remove shall be effective against a judge who has already presided at the trial, omnibus hearing, or other evidentiary hearing of which the party had notice, except upon an affirmative showing of cause on the part of the judge. After a party has once disqualified a presiding judge as a matter of right, that party may disqualify the substitute only upon an affirmative showing of cause.

(5) Recusal. A judge without a motion may recuse himself or herself from presiding over a trial or other proceeding.

(6) Assignment of New Judge. Upon the removal, disqualification, disability, recusal, or unavailability of a judge under this rule, the chief judge shall assign any other judge under the authority of the tribal court to hear the matter. If there is no other judge of the tribal court who is qualified to hear the matter, the chief judge shall notify the tribal council. The tribal council shall then assign a judge of another jurisdiction to preside over the matter.

Subd. 14. Exceptions.

(1) Exceptions Abolished. Exceptions to rulings or orders of the court or to the actions of a party are abolished. It is sufficient that a party, at the time the ruling or order of court is made or sought or the action of a party taken, makes known to the court the action which the party desires the court to take or the party’s objections to the action of the court or of a party and the grounds therefor; and, if a party has no opportunity to object to a ruling or order or action at the time it is made or taken the absence of an objection does not thereafter prejudice the party.

(2) Bills of Exception and Settled Cases Abolished. The bill of exceptions and settled case shall not be required. The record of the case for the purposes for which a bill of exceptions or settled case was heretofore required shall consist of the papers filed in the trial court, the offered exhibits, and the minutes of the court, and the transcript of the proceedings, if any.

Subd. 15. Evidence. In all trials the testimony of witnesses shall be taken in open court, unless otherwise provided by these rules.

Subd. 16. Interpreters. The court may appoint an interpreter of its own selection and may fix reasonable compensation for the interpreter. The compensation shall be paid out of funds provided by law.

Subd. 17. Motion for Judgment of Acquittal.

(1) Motions Before Submission to Jury. Motions for directed verdict are abolished and motions for judgment of acquittal shall be used in their place. After the evidence on either side is closed, the court on motion of a defendant or on its initiative shall order the entry of a judgment of acquittal of one or more offenses charged in the tab charge or complaint if the evidence is insufficient to sustain a conviction of such offense or offenses.

(2) Reservation of Decision on Motion. If the defendant’s motion is made at the close of the evidence offered by the prosecution, the court may not reserve decision of the motion. If the defendant’s motion is made at the close of all the evidence, the court may reserve decision on the motion, submit the case to the jury and decide the motion either before the jury returns a verdict or after it returns a verdict or is discharged without having returned a verdict. If the defendant’s motion is granted after the jury returns a verdict of guilty, the court shall make written findings specifying its reasons for entering a judgment of acquittal.

(3) Motion After Discharge of Jury. If the jury returns a verdict of guilty or is discharged without having returned a verdict, a motion for judgment of acquittal may be made or renewed within 15 days after the jury is discharged or within such further time as the court may fix during the 15-day period. If a verdict of guilty is returned the court may on such motion set aside the verdict and enter judgment of acquittal, in which case the court shall make written findings specifying its reasons for entering a judgment of acquittal. If no verdict is returned, the court may enter judgment of acquittal. Such motion is not barred by defendant’s failure to make a similar motion prior to the submission of the case to the jury.

Subd. 18. Instructions.

(1) Requests for Instructions. At the close of the evidence or at such earlier time during the trial as the court reasonably directs, any party may file written requests that the court instruct the jury on the law as set forth in the requests. At the same time copies of such requests shall be furnished to all parties. The court shall inform counsel of its proposed action upon the requests prior to the arguments to the jury, and such action shall be made a part of the record.

(2) Proposed Instructions. The court may, and upon request of any party shall, before the arguments to the jury, inform counsel what instructions will be given and all such instructions may be stated to the jury by either party as a part of the party’s argument.

(3) Objections to Instructions. No party may assign as error any portion of the charge or omission therefrom unless the party objects thereto before the jury retires to consider its verdict. The matter to which objection is made and the grounds of the objection shall be specifically stated. Opportunity shall be given to make the objection out of the hearing of the jury and, on request of any party, out of the presence of the jury. All objections to instructions and the rulings thereon shall be included in the record. All instructions, whether given or refused, shall be made a part of the record. An error in the instructions with respect to fundamental law or controlling principle may be assigned in a motion for a new trial though it was not otherwise called to the attention of the court.

(4) Giving of Instructions. The court in its discretion shall instruct the jury either before or after the arguments are completed except, at the discretion of the court, preliminary instructions need not be repeated. The instructions may be in writing and in the discretion of the court a copy may be taken to the jury room when the jury retires for deliberation.

(5) Contents of Instructions. In charging the jury the court shall state all matters of law which are necessary for the jury’s information in rendering a verdict and shall inform the jury that it is the exclusive judge of all questions of fact. The court shall not comment on the evidence or the credibility of the witnesses, but may state the respective claims of the parties.

Subd. 19. Jury Deliberations and Verdict.

(1) Materials to Jury Room. The court shall permit the jury, upon retiring for deliberation, to take to the jury room exhibits which have been received in evidence, or copies thereof, except depositions and may permit a copy of the instructions to be taken to the jury room.

(2) Jury Requests to Review Evidence.

(a) If the jury, after retiring for deliberation, requests a review of certain testimony or other evidence, the jurors shall be conducted to the courtroom. The court, after notice to the prosecutor and defense counsel, may have the requested parts of the testimony read to the jury and permit the jury to re-examine the requested materials admitted into evidence.

(b) The court need not submit evidence to the jury for review beyond that specifically requested by the jury, but in its discretion the court may also have the jury review other evidence relating to the same factual issue so as not to give undue prominence to the evidence requested.

(3) Additional Instructions After Jury Retires.

(a) If the jury, after retiring for deliberation, desires to be informed on any point of law, the jurors, after notice to the prosecutor and defense counsel, shall be conducted to the courtroom. The court shall give appropriate additional instructions in response to the jury’s request unless (1) the jury may be adequately informed by directing their attention to some portion of the original instructions; (2) the request concerns matters not in evidence or questions which do not pertain to the law of the case; or (3) the request would call upon the judge to express an opinion upon factual matters that the jury should determine.

(b) The court need not give additional instructions beyond those specifically requested by the jury, but in its discretion the court may also give or repeat other instructions to avoid giving undue prominence to the requested instructions.

(c) The court after notice to the prosecutor and defense counsel may recall the jury after it has retired and give any additional instructions as the court deems appropriate.

(4) Deadlocked Jury. The jury may be discharged without having agreed upon a verdict if it appears that there is no reasonable probability of agreement.

(5) Polling the Jury. When a verdict is rendered and before the jury has been discharged, the jury shall be polled at the request of any party or upon the court’s initiative. The poll shall be conducted by the court or clerk of court who shall ask each juror individually whether the verdict announced is the juror’s verdict. If the poll does not conform to the verdict, the jury may be directed to retire for further deliberation or may be discharged.

(6) Impeachment of Verdict. Affidavits of jurors shall not be received in evidence to impeach their verdict. A defendant who has reason to believe that the verdict is subject to impeachment, shall move the court for a summary hearing. If the motion is granted the jurors shall be interrogated under oath and their testimony recorded.

(7) Partial Verdict. The court may accept a partial verdict when the jury has agreed on a verdict on less than all of the charges submitted, but is unable to agree on the remainder.

Rule 22.04. Post-Verdict Motions

Subd. 1. New Trial.

(1) Grounds. The court on written motion of the defendant may grant a new trial on any of the following grounds:

(a) If required in the interests of justice;

(b) Irregularity in the proceedings of the court, jury, or on the part of the prosecution, or any order or abuse of discretion, whereby the defendant was deprived of a fair trial.

(c) Misconduct of the jury or prosecution;

(d) Accident or surprise which could not have been prevented by ordinary prudence;

(e) Material evidence, newly discovered, which with reasonable diligence could not have been found and produced at the trial;

(f) Errors of law occurring at the trial, and objected to at the time or, if no objection is required by these rules, assigned in the motion;

(g) The verdict or finding of guilty is not justified by the evidence, or is contrary to law.

(2) Basis of Motion. A motion for new trial shall be made and heard on the files, exhibits and minutes of the court. Pertinent facts that would not be part of the minutes may be shown by affidavit except as otherwise provided by these rules. A full or partial transcript of the court reporter’s notes of the testimony taken at the trial or other verbatim recording thereof may be used on the hearing of the motion.

(3) Time for Motion. Notice of motion for a new trial shall be served within 15 days after verdict or finding of guilty. The motion shall be heard within 30 days after the verdict or finding of guilty, unless the time for hearing be extended by the court within the 30-day period for good cause shown.

(4) Time for Serving Affidavits. When a motion for new trial is based on affidavits, they shall be served with the notice of motion. The opposing party shall have 10 days after such service in which to serve opposing affidavits, which period may be extended by the court upon an order extending the time for hearing under this rule. The court may permit reply affidavits.

Subd. 2. Motion to Vacate Judgment. The court on motion of a defendant shall vacate judgment, if entered, and dismiss the case if the complaint or tab charge does not charge an offense or if the court was without jurisdiction of the offense charged. The motion shall be made within 15 days after verdict or finding of guilty or after plea of guilty, or within such time as the court may fix during the 15-day period. If the motion is granted, the court shall make written findings specifying its reasons for vacating the judgment and dismissing the case.

Subd. 3. Joinder of Motions . Any motions for judgment of acquittal or to vacate judgment shall be joined with a motion for a new trial.

Subd. 4. New Trial on Court’s Initiative. The court, within 15 days after verdict or finding of guilty, with the consent of the defendant, may order a new trial upon any of the rounds specified in Rule 22.04, Subd, 1(1).

RULE 23. SENTENCE AND JUDGMENT

Rule 23.01. Conditions of Release

When a defendant has been convicted and is awaiting sentence, the court may continue or alter the conditions for defendant’s release, or may order confinement of the defendant, taking into account the conditions of release and the factors determining the conditions of release as provided by Rule 6.02, Subd. 1 and Subd. 2 and whether there is reason to believe that the defendant will flee or pose a danger to any person or to the community. The burden of establishing that the defendant will not flee or will not be a danger to any other person or to the community rests with the defendant.

Rule 23.02. Presentence Investigation in Misdemeanor Cases

In misdemeanor cases, the report of the presentence investigation may be oral if so directed by the court. If the presentence report is given orally, the defendant or defense counsel shall be permitted to hear the report.

Rule 23.03. Sentencing Proceedings

Subd. 1. Hearings. Hearings upon the presentence report and upon the sentence to be imposed upon the defendant shall be held as provided by law. Before the sentencing proceeding, in a misdemeanor or gross misdemeanor case, each party shall notify the opposing party and the court of any part of a written presentence report which the party intends to controvert by the production of evidence. Both the prosecutor and the defendant or defense counsel shall have an opportunity to controvert any part of an oral presentence report and for such purpose the court may continue the sentencing.

At the conclusion of the sentencing hearing, the court may state into the record findings of fact, conclusions of law and appropriate order on the issues submitted by the parties. Otherwise the court shall issue written findings of fact, conclusions of law and appropriate order within twenty days of the conclusion of the sentencing hearing.

If it is determined upon hearing that the sentencing worksheet or supplement submitted as a part of any presentence investigation report contains an error or errors, the court shall cause a corrected worksheet to be prepared.

The court may impose sentence immediately following the conclusion of the sentencing hearing.

Subd. 2. Defendant’s Presence at Hearing and Sentencing. Defendant must be personally present at the sentencing hearing and at the time sentence is pronounced except when excused pursuant to Rule 22.03, Subd. 1(3). If the defendant is handicapped in communication, a qualified interpreter for the defendant must also be present. Sentence may be pronounced against a corporation in the absence of counsel if counsel fails to appear on the date of sentence after reasonable notice thereof.

Subd. 3. Statements at Time of Sentencing. Before pronouncing sentence, the court shall give the prosecutor and defense counsel an opportunity to make a statement with respect to any matter relevant to the question of sentence including a recommendation as to sentence. The court shall also address the defendant personally and ask if the defendant wishes to make a statement in the defendant’s own behalf and to present any information before sentence. The court shall not accept any communication relative to sentencing that is not on the record without disclosing the contents to the defense and to the prosecution.

Subd. 4. Imposition of Sentence. When sentence is imposed the court:

(a) Shall state the precise terms of the sentence.

(b) Shall assure that the record accurately reflects all time spent in custody in connection with the offense or behavioral incident for which sentence is imposed. Such time shall be automatically deducted from the sentence and the term of imprisonment including time spent in custody as a condition of probation from a prior stay of imposition or execution of sentence.

(c) If the court elects to stay imposition or execution of sentence, and:

(1) Requires a period of probation, the court shall advise the defendant that a non-custodial probation time may not be credited against the sentence in the event that probation is ultimately revoked and sentence executed.

(2) If noncriminal conduct could result in revocation, the trial court should advise the defendant so that the defendant can be reasonably able to tell what lawful acts are prohibited.

(3) A written copy of the conditions of probation should be given to the defendant at the time of sentencing or soon thereafter.

(4) The defendant should be told that in the event of a disagreement with the probation agent as to the terms and conditions of probation, the defendant can return to the court for clarification if necessary.

Subd. 5. Notice of Right to Appeal. After imposition of sentence or granting of probation the court shall inform the defendant of the right to appeal the judgment of conviction or sentence or both.

Subd. 6. Record. A verbatim record of the sentencing proceedings shall be made. In gross misdemeanor cases any verbatim record made in accordance with this rule shall be transcribed and filed with the clerk of court for the trial court within 30 days after the date of sentencing. In misdemeanor cases any such record need not be transcribed unless requested by the court, the defendant, or the prosecuting attorney.

Subd. 7. Judgment. The clerk’s record of a judgment of conviction shall contain the plea, the verdict of findings, and the adjudication of sentence. If the defendant is found not guilty or for any other reason is entitled to be discharged, judgment shall be entered accordingly. The sentence or stay of imposition of sentence is an adjudication of guilt.

Subd. 8. Clerical Mistakes. Clerical mistakes in judgments, orders, or other parts of the record or errors in the record arising from oversight or omission may be corrected by the court at any time and after such notice, if any, as the court orders.

Subd. 9. Correction or Reduction of Sentence. The court at any time may correct a sentence not authorized by law. The court may at any time modify a sentence during either a stay of imposition or stay or execution of sentence except that the court may not increase the period of confinement.

Rule 23.04 Probation Revocation

Subd. 1. Commencement of Proceedings.

(1) Issuance of Revocation Warrant or Summons. Proceedings for the revocation of probation shall be commenced by the issuance of a warrant or a summons by the court based upon a written report showing probable cause to believe that the probationer has violated any conditions of probation. The written report shall include a description of the surrounding facts and circumstances upon which the request for revocation is based. In any case the court may issue a summons instead of a warrant whenever it is satisfied that a warrant is unnecessary to secure the appearance of the probationer. If the probationer fails to appear in response to a summons, a warrant may be issued.

(2) Contents of Warrant and Summons. Both the warrant and summons shall contain the name of the probationer, a description of the probationary sentence sought to be revoked, the signature of the issuing judge or judicial officer of the tribal court, and shall be accompanied by the written report upon which it was based. The amount of any bail or other conditions of release may be set by the issuing judge or judicial officer and endorsed on the warrant. The warrant shall direct that the probationer be brought promptly before the court that issued the warrant if it is in session. If that court is not in session the warrant shall direct that the probationer be brought promptly before a judge or judicial officer of that court, without unnecessary delay, and in any event not later than 36 hours after the arrest exclusive of the day of arrest, or as soon thereafter as such judge or judicial officer is available. The summons shall summon the probationer to appear at a stated time and place to respond to the revocation charges.

(3) Execution or Service of Warrant or Summons; Certification. Execution, service, and certification of the warrant or summons shall be as provided in Rule 3.03.

Subd. 2. First Appearance.

(1) Advice to Probationer. A probationer who initially appears before the court pursuant to a warrant or summons concerning an alleged probation violation, shall be advised of the nature of the violation charged. Prior to doing this, the judge, judicial officer, or other duly authorized personnel shall determine whether the probationer is handicapped in communication and, if so, appoint a qualified interpreter to assist the probationer throughout the probation violation proceedings. The probationer shall also be given a copy of the written report upon which the warrant or summons was based if the probationer has not previously received such report. The judge, judicial officer, or other duly authorized personnel shall further advise the probationer substantially as follows:

(a) That the probationer is entitled to counsel at all stages of the proceedings, and if financially unable to afford counsel, one will be appointed for the probationer upon request;

(b) That unless waived, a revocation hearing will be held to determine whether there is clear and convincing evidence that the probationer has violated any conditions of probation and that probation should therefore be revoked;

(c) That before the revocation hearing all evidence to be used against the probationer shall be disclosed to the probationer and the probationer shall be provided access to all official records pertinent to the proceedings;

(d) That at the hearing both the prosecution and the probationer shall have the right to offer evidence, present arguments, subpoena witnesses, and call and cross-examine witnesses, provided, however, that the probationer may be denied confrontation by the court when good cause is shown that a substantial risk of serious harm to others would exist if it were allowed. Additionally, the probationer shall have the right at the revocation hearing to present mitigating circumstances or other reasons why the violation, if proved, should not result in revocation;

(e) That the probationer has the right of appeal from the determination of the court following the revocation hearing.

(2) Appointment of Counsel. The appointment of counsel for a probationer financially unable to afford counsel shall be governed by the standards and procedures set forth in Rule 5.02.

(3) Conditions of Release. The probationer may be released pending appearance at the revocation hearing. In deciding upon the conditions of release and whether to release the probationer, the court shall take into account the conditions of release and the factors determining the conditions of release as provided by Rule 6.02, Subd. 1 and 2 and whether there is a reason to believe that the probationer will flee or pose a danger to any person in the community. The burden of establishing that the probationer will not flee or will not be a danger to any other person or the community rests with the probationer.

(4) Time of Revocation Hearing. The court shall set a date for the revocation hearing to be held within a reasonable time before the court which granted probation. If the probationer is in custody as a result of the revocation proceedings, the revocation hearing shall be held within seven days. If the probationer has allegedly violated a condition of probation by commission of a crime, the court may postpone the revocation hearing pending disposition of the criminal case whether or not the probationer is in custody.

(5) Record. A verbatim record shall be made of the proceedings at the probationer’s initial appearance before the court under this rule.

Subd. 3. Revocation Hearing.

(1) Hearing Procedures. The hearing shall be held in accordance with the provisions of Subd. 2(1)(a), (b), (c), and (d) of this rule.

(2) Finding of No Violation of Conditions of Probation. If the court finds that a violation of the conditions of probation has not been established by clear and convincing evidence, the revocation proceedings shall be dismissed, and the probationer’s probation continued under the conditions theretofore ordered by the court.

(3) Finding of Violation of Conditions of Probation. If the court finds upon clear and convincing evidence that any conditions of probation have been violated, or if the probationer admits the violation, the court may proceed as follows:

(a) Imposition of Sentence Stayed. If imposition of sentence was initially stayed, and probationer placed on probation, the court may again stay imposition of sentence or impose sentence and stay execution thereof, and in either event place the probationer on probation or impose sentence and order the execution thereof.

(b) Execution of Sentence. If execution of sentence initially imposed was stayed and probationer placed on probation, the court may continue the stay and place the probationer on probation or order execution of the sentence previously imposed.

(4) Record of Findings. A verbatim record shall be made of the proceedings at the revocation hearing and in any contested hearing the court shall make written findings of fact on all disputed issues including a summary of the evidence relied upon and a statement of the court’s reasons for its determination.

(5) The probationer or the prosecution may appeal from the court’s decision according to the procedure provided for appeal from a sentence by Rule 24.05.

Rule 23.05 Pretrial Diversion

Subd. 1. Agreements Permitted.

(1) Generally. After due consideration of the victim’s views and subject to the court’s approval, the prosecuting attorney and the defendant may agree that the prosecution will be suspended for a specified period after which it will be dismissed under Subd. 7 of this rule on condition that the defendant not commit a felony, gross misdemeanor, misdemeanor or petty misdemeanor offense during the period. The agreement may be entered orally on the record or the agreement shall be in writing and signed by the parties. It shall state that the defendant waives the right to a speedy trial. It may include stipulations concerning the existence of specified facts or the admissibility into evidence of specified testimony, evidence, or depositions if the suspension of prosecution is terminated and there is a trial on the charge.

(2) Additional Conditions. Subject to the court’s approval after due consideration of the victim’s views and upon a showing of substantial likelihood that a conviction could be obtained and that the benefits to society from rehabilitation outweigh any harm to society from suspending criminal prosecution, the agreement may specify one or more of the following additional conditions to be observed by the defendant during the period.

(a) that the defendant not engage in specified activities, conduct, and associations bearing a relationship to the conduct upon which the charge against the defendant is based;

(b) that the defendant participate in a supervised rehabilitation program, which may include treatment, counseling, training, and education;

(c) that the defendant make restitution in a specified manner for harm or loss caused by the crime charged; and

(d) that the defendant perform specified community service.

(3) Limitations on Agreements. The agreement may not specify a period longer or any condition other than could be imposed upon probation after conviction of the crime charged.

Subd. 2. Filing of Agreement; Release. Promptly after the agreement is made and approved by the court, the prosecuting attorney shall file any written agreement together with a statement that pursuant to the agreement the prosecution is suspended for a period specified in the statement. Upon the filing, the defendant shall be released from any custody under Rule 6.

Subd. 3. Modification of Agreement. Subject to Subd. 1 and 2 of this rule and with the court’s approval, the parties by mutual consent may modify the terms of the agreement at any time before its termination.

Subd. 4. Termination of Agreement; Resumption of Prosecution.

(1) Upon Defendant’s Notice. The agreement is terminated and the prosecution may resume as if there had been no agreement if the defendant files a notice that the agreement is terminated.

(2) Upon Order of Court. The court may order the agreement terminated and the prosecution resumed if, upon motion of the prosecuting attorney stating facts supporting the motion and upon hearing, the court files that:

(a) the defendant or defense counsel misrepresented material facts affecting the agreement, if the motion is made within six months after the date of the agreement; or

(b) the defendant has committed a material violation of the agreement, if the motion is made before the expiration of the period of suspension specified in the agreement.

Subd. 5. Emergency Order. The court by warrant may direct any officer authorized by law to bring the defendant forthwith before the court for the hearing of the motion if the court finds from affidavit or testimony that:

(a) there is probable cause to believe the defendant committed a material violation of the agreement; and

(b) there is a substantial likelihood that the defendant otherwise will not attend the hearing.

In any case the court may issue a summons instead of a warrant to secure the appearance of the defendant at the hearing.

Subd. 6. Release Status Upon Resumption of Prosecution. If prosecution resumes under Subd. 4 of this rule, the defendant shall return to the release status in effect before the prosecution was suspended unless the court imposes additional or different conditions of release under Rule 6.

Subd. 7. Termination of Agreement; Dismissal. If no motion by the prosecuting attorney to terminate the agreement is made, the agreement is terminated and the complaint or tab charge shall be dismissed by order of the court one month after expiration of the period of suspension specified by the agreement. If such a motion is then pending, the agreement is terminated and the complaint or tab charge shall be dismissed by order of the court upon entry of a final order denying the motion. Following a dismissal under this subdivision the defendant may not be further prosecuted for the offense involved.

Subd. 8. Termination and Dismissal Upon Showing of Rehabilitation.

The court may order the agreement terminated, dismiss the prosecution, and bar further prosecution of the offense involved if, upon motion of a party stating facts supporting the motion and opportunity to be heard, the court finds that the defendant has committed no later offenses as specified in the agreement and appears to be rehabilitated.

Subd. 9. Modification or Termination and Dismissal Upon Defendant’s Motion. If, upon motion of the defendant and hearing, the court finds that the prosecuting attorney obtained the defendant’s consent to the agreement as a result of a material misrepresentation by a person covered by the prosecuting attorney’s obligation under Rule 9.01, Subd. 1(7), the court may:

(a) order appropriate modification of the terms resulting from the misrepresentation; or

(b) if the court determines that the interests of justice require, order the agreement terminated, dismiss the prosecution, and bar further prosecution for the offense involved.

RULE 24. APPEALS TO COURT OF APPEALS

Rule 24.01. Scope of Rule

Subd. 1. Appeals from Tribal Court. Rule 24 governs the procedure for appeals in misdemeanor and gross misdemeanor cases from the tribal court to the Court of Appeals.

Subd. 2. Applicability of the Rules of Appellate Procedure. Except as otherwise provided in these rules, the White Earth Band of Chippewa Rules of Appellate Procedure to the extent possible shall govern appellate procedures in such cases.

Subd. 3. Suspension of Rules. In the interest of expediting decision, or for other good cause shown, the Court of Appeals may suspend the requirements or provisions of any of these rules in a particular case on application of a party or on its initiative and may order proceedings in accordance with its direction, but the Court of Appeals may not alter the time for filing notice of appeal except as provided by these rules.

Rule 24.02. Appeal by Defendant

Subd. 1. Review by Appeal. Except as provided by law for the issuance of the extraordinary writs and for the Post-Conviction Remedy, a defendant may obtain review of orders and rulings of the tribal court by the Court of Appeals only by appeal as provided by these rules. Writs of error are abolished.

Subd. 2. Appeal as of Right.

(1) Final Judgment and Postconviction Appeal. A defendant may appeal as of right from any adverse final judgment or from an order denying in whole or in part a petition for postconviction relief. A judgment shall be considered final within the meaning of these rules when there is a judgment of conviction upon the verdict of a jury or the finding of the court, and sentence is imposed or the imposition of sentence is stayed.

(2) Orders. A defendant may not appeal until final judgment adverse to the defendant has been entered by the trial court except that a defendant may appeal from an order refusing or imposing conditions of release or in gross misdemeanor cases from:

(a) an order granting a new trial when the defendant claims that the trial court should have entered a final judgment in the defendant’s favor; or

(b) an order, not on the defendant’s motion, finding the defendant incompetent to stand trial.

(3) Sentences. All sentences may be reviewed only pursuant to Rule 24.02, Subd. 3.

Subd. 3. Discretionary Appeal. The Court of Appeals in the interests of justice and upon petition of the defendant may allow an appeal from an order not otherwise appealable, except an order made during trial, in the manner provided by the White Earth Band of Chippewa Rules of Appellate Procedure, provided that the petition shall be served and filed within thirty days after entry of the order appealed.

Subd. 4. Procedure for Appeals Other than Sentencing Appeals.

(1) Service and Filing. An appeal shall be taken by filing a notice of appeal with the clerk of the appellate court together with proof of service on the prosecuting attorney and the clerk of the trial court in which the judgment or order appealed from is entered. A bond shall not be required of a defendant for exercising the right to appeal. Unless otherwise ordered by the appellate court, defendant need not file a certified copy of the judgment or order appealed from or a statement of the case. Failure of the defendant to take any other step than timely filing the notice of appeal does not affect the validity of the appeal, but is ground only for such action as the Court of Appeals deems appropriate, including dismissal of the appeal.

(2) Contents of Notice of Appeal. The notice of appeal shall specify the party or parties taking the appeal; shall give the names, addresses, and telephone numbers of all counsel and indicate whom they represent; shall designate the judgment or order from which appeal is taken; and shall state that the appeal is to the court of appeals.

(3) Time for Taking Appeal. An appeal by a defendant shall be taken within 90 days after final judgment or entry of the order appealed from in gross misdemeanor cases and within 10 days after final judgment or entry of the order appealed from in misdemeanor cases, except that an appeal from an order denying a petition for postconviction relief shall be taken within 60 days after entry of the order. A notice of appeal filed after the announcement of a decision or order, but before sentencing or entry of judgment or order shall be treated as filed after such entry or sentencing and on the day thereof. If a timely motion to vacate the judgment, for judgment of acquittal, or for a new trial has been made, the time for an appeal from a final judgment does not begin to run until the entry of an order denying the motion, and the order denying the motion may be reviewed upon the appeal from the judgment.

A judgment or order is entered within the meaning of these appellate rules when it is entered upon the record of the clerk of the tribal court.

For good cause the trial court or a judge of the Court of Appeals may, before or after the time for appeal has expired, with or without motion and notice, extend the time for filing a notice of appeal for a period not to exceed 30 days from the expiration of the time otherwise prescribed herein for appeal.

Subd. 5. Stay. When an appeal is taken by the defendant, the execution of judgment or sentence shall not be stayed unless a stay is granted by the trial court judge or a judge of the appellate court.

Subd. 6. Release of Defendant.

(1) Conditions of Release. Upon appeal, if the court grants a stay under Subd. 6 of this rule, the conditions for defendant’s release and the factors determining the conditions of release shall be governed by Rule 6.02, Subd. 1 and 2, except as hereinafter provided by this rule. The court shall also take into consideration that the defendant may be compelled to serve the sentence imposed before the appellate court has an opportunity to decide the case.

(2) Burden of Proof. Release pending appeal from a judgment of conviction upon which the defendant was sentenced to incarceration shall not be granted unless the defendant establishes to the satisfaction of the court that there is no substantial risk the defendant will not appear to answer the judgment following the conclusion of the appellate proceedings, that the defendant is not likely to commit a serious crime, intimidate witnesses, or otherwise interfere with the administration of justice, and that the appeal is not frivolous or taken for delay.

(3) Application for Release Pending Appeal. Application for release pending appeal shall be made in the first instance to the trial court. If the trial court refuses release pending appeal, or imposes conditions of release, the court shall state on the record the reasons for the action taken. Thereafter, if an appeal is pending, a motion for release, or for modification of the conditions of release, pending review may be made to the appellate court or a judge thereof. The motion shall be determined promptly upon such papers, affidavits, and portions of the record as the parties shall present and after reasonable notice to the prosecuting attorney. The appellate court or a judge thereof may order the release of the defendant pending disposition of the motion.

(4) Credit for Time Spent in Custody. All time the defendant is in custody pending an appeal shall be automatically deducted from the sentence imposed by the court.

Subd. 7. Record on Appeal. The record on appeal shall consist of the papers filed in the trial court, the offered exhibits, and the transcript of the proceedings, if any.

In lieu of the record as defined by this rule, the parties may within 60 days after filing of the notice of appeal prepare, sign, and file with the clerk of trial court a statement of the case showing how the issues presented by the appeal arose and were decided in the trial court, stating only the claims and facts essential to a decision. If the statement is accurate, it, together with such additions as the trial court may consider necessary to present the issues raised by the appeal, shall be approved by the trial court and shall be the record on appeal. Any recitation of the essential facts of the case, conclusions of law, the memorandum relating thereto of the trial court shall be included with the record. An appellant who intends to proceed on appeal with a statement of the case under this rule rather than by obtaining a transcript, or without a statement of the case or transcript, shall serve notice of intent to do so on respondent and the clerk of the trial court and file the notice with the clerk of the appellate court all within the time provided for ordering a transcript.

Subd. 8. Transcript of Proceedings and Transmission of the Transcript of Record. The White Earth Band of Chippewa Rules of Appellate Procedure to the extent applicable shall govern the transcript of the proceedings and the transmission of the transcript and record to the Court of Appeals, except that the transcript shall be ordered within 30 days after filing of the notice of appeal and may be extended by the appellate court for good cause shown. Any videotape or audiotape exhibits admitted at trial or hearing shall, if not previously transcribed, be transcribed at the request of either the appellant or the respondent. The transcript of any such exhibit then shall be included as part of the record. If the entire transcript is not to be included, the appellant, within the 30 days, shall file with the clerk of the appellate court and serve on the clerk of the trial court and respondent a description of the parts of the transcript which the appellant intends to include in the record and a statement of the issues the appellant intends to present on appeal. If the respondent deems a transcript of other parts of the proceedings to be necessary, the respondent shall order, with 10 days of service of the description or notification of no transcript, those other parts from the reporter deemed necessary, or serve and file a motion in the trial court for an order requiring the appellant to do so.

Subd. 9. Briefs. The appellant shall serve and file the appellant’s brief and appendix within 60 days after delivery of the transcript by the reporter or after the filing of the trial court’s approval of the statement pursuant to Subd. 8 of this rule. In all other cases, if the transcript is obtained prior to appeal or if the record on appeal does not include a transcript, then the appellant shall serve and file the appellant’s brief and appendix with the clerk of the appellate court within 60 days after the filing of the notice of appeal. The respondent shall serve and file the respondent’s brief and appendix, if any, within 45 days after service of the brief of appellant. The appellant may serve and file a reply brief within 15 days after service of the respondent’s brief. In all other respects the White Earth Band of Chippewa Rules of Appellate Procedure to the extent applicable shall govern the form and filing of briefs and appendices except that the appellant’s brief shall contain a statement of procedural history.

Subd. 10. Scope of Review. On appeal from a judgment, the court may review any pretrial or trial order or ruling, whether or not a motion for new trial has been made, and may review the denial of a motion for a new trial, or to vacate judgment or for judgment of acquittal, whether ruled upon before or after judgment. The court may review any other matter as the interests of justice may require.

Subd. 11. Action on Appeal. On appeal from a judgment, if the court affirms the judgment, it shall direct the sentence as pronounced by the trial court or as modified by the appellate court pursuant to Rule 24.05, Subd. 2, be executed. If it reverses the judgment, it shall either direct a new trial, or that the defendant be discharged or that the conviction be reduced to a lesser included offense or to an offense of lesser degree, as the case may require. If the conviction is reduced, the case shall be returned to the court which imposed the sentence for resentencing.

Subd. 12. Oral Argument.

(1) Allowance of Oral Argument. There shall be oral argument in every case if either party serves on adverse counsel and files with the clerk of the appellate court a request for it at the time of serving and filing the party’s initial brief, unless:

(a) oral argument is forfeited by respondent for failure to timely file a brief and appellant has either waived oral argument or not requested it;

(b) oral argument is waived; or

(c) the appellate court determines in the exercise of its discretion that oral argument is unnecessary because:

1. the dispositive issue or set of issues has been authoritatively settled; or

2. the briefs and record adequately present the facts and legal arguments and the decisional process would not be significantly aided by oral argument.

The clerk of the appellate court shall notify the parties when it has been determined that oral argument shall not be allowed under this provision. Any party so notified may request the court to reconsider its decision by serving on all other parties and filing with the clerk of the appellate court a written request for reconsideration within 5 days of receipt of the notification that no oral argument shall be allowed. If, under this provision, oral argument is not allowed, the case shall be considered as submitted to the court at the time the clerk of the appellate court notifies the parties that oral argument has been denied.

The Court of Appeals may direct presentation or oral argument in any case.

(2) Procedure Upon Oral Argument. Except in exigent circumstances, the oral argument shall be heard before the full panel to which the case has been assigned, and in any event shall be considered and decided by the full panel. Except as otherwise provided by this rule, the procedure upon oral argument including waiver and forfeiture of oral argument shall be as set forth in the White Earth Band of Chippewa Rules of Appellate Procedure.

Rule 24.03. Certification of Proceedings

If, upon the trial of any person convicted in any court, or if, upon any motion to dismiss a tab charge or complaint, or upon any motion relating to the tab charge or complaint, any question of law shall arise which in the opinion of the judge is so important or doubtful as to require a decision of the Court of Appeals, the judge shall, if the defendant shall request or consent thereto, report the case, so far as may be necessary to present the question of law, and certify the report to the Court of Appeals, whereupon all proceedings in the case shall be stayed until the decision of the Court of Appeals. Other criminal cases in such trial court involving or depending upon the same question, may, if the defendant so requests, or consents thereto, be stayed in like manner until the decision of the case so certified. Unless otherwise provided by order of the appellate court, the filing and serving of briefs upon certification shall be as provided in Rule 24.04, Subd. 2(3).

Rule 24.04. Appeal by Prosecuting Attorney

Subd. 1. Right of Appeal. The prosecuting attorney may appeal as of right to the Court of Appeals:

(a) in any case, from any pretrial order of the trial court except an order dismissing a complaint for lack of probable cause to believe the defendant has committed an offense or an order dismissing a complaint; and

(b) in any case, from an order granting postconviction relief; and

(c) in any case, from a judgment of acquittal by the trial court entered after the jury returns a verdict of guilty under Rule 22.03, Subd. 17(2) or (3); and

(d) in any case, from an order of the trial court vacating judgment and dismissing the case made after the jury returns a verdict or guilty under Rule 22.04, Subd. 2.

Subd. 2. Procedure Upon Appeal of Pretrial Order. The procedure upon appeal of a pretrial order by the prosecuting attorney shall be as follows:

(1) Stay. Upon oral notice that the prosecuting attorney intends to appeal a pretrial order, the trial court shall order a stay of proceedings of 5 days to allow time to perfect the appeal.

(2) Notice of Appeal. The prosecuting attorney shall file with the clerk of the appellate court a notice of appeal, a statement of the case, and a copy of the written request to the court reporter for such transcript of the proceedings as appellant deems necessary. The notice of appeal, the statement of the case, and request for transcript shall have attached at the time of filing, proof of service on the defendant or defense counsel and the clerk of the trial court in which the pretrial order is entered. Failure to serve or file the statement of the case, to request the transcript, to file a copy of such request, or to file proof of service does not deprive the Court of Appeals of jurisdiction over the prosecuting attorney’s appeal, but it is ground only for such action as the Court of Appeals deems appropriate, including dismissal of the appeal. The contents of the notice of appeal shall be as set forth in Rule 24.02, Subd. 4(2).

(3) Briefs. Within fifteen days of delivery of the transcripts, appellant shall file the appellant’s brief with the clerk of the appellate court together with proof of service upon the respondent. Within 8 days of service of appellant’s brief upon respondent the respondent shall file the respondent’s brief with said clerk together with proof of service upon the appellant. In all other respects the White Earth Band of Chippewa Rules of Appellate Procedure to the extent applicable shall govern the form and filing of briefs and appendices except that the appellant’s brief shall contain a statement of the procedural history.

(4) Oral Argument and Consideration. The provisions of Rule 24.02, Subd. 12 concerning oral argument shall apply to appeals by the prosecuting attorney provided that the date of oral argument or submission of the case to the court without oral argument shall not be more than 3 months after all briefs have been filed. The Court of Appeals shall not hear or accept as submitted any such appeals more than 3 months after all briefs have been filed and in such cases the lower court shall then proceed as if no appeal had been taken.

(5) Attorney’s Fees. Reasonable attorney’s fees and costs incurred shall be allowed to the defendant on such appeal which shall be paid by the governmental unit responsible for the prosecution involved.

(6) Joinder. The prosecuting attorney may appeal from one or several of the orders under this rule joined in a single appeal.

(7) Time for Appeal. The prosecuting attorney may not appeal under this rule until after the omnibus hearing has been held under Rule 11, or the evidentiary hearing and pretrial conference, if any, have been held under Rule 12, and all issues raised therein have been determined by the trial court. The appeal then shall be taken within 5 days after the defense, or the clerk of court pursuant to Rule 28.03, subsequently serves notice of entry of the order appealed from upon the prosecuting attorney or within 5 days after the prosecuting attorney is notified in court on the record of such order, which ever occurs first. All pretrial orders entered and to the prosecuting attorney prior to the trial court’s final determination of all issues raised in the omnibus hearing under Rule 11, or the evidentiary hearing and pretrial conference under Rule 12, may be included in this appeal. An appeal by the prosecuting attorney under this rule bars any further appeal by the prosecuting attorney from any existing orders not included in the appeal. No appeal of a pretrial order by the prosecuting attorney shall be taken after jeopardy has attached.

An appeal under this rule does not deprive the trial court of jurisdiction over pending matters not included in the appeal.

Subd. 3. Cross-Appeal by Defendant. Upon appeal by the prosecuting attorney, the defendant may obtain review of any pretrial or postconviction order which will adversely affect the defendant, by filing a notice of cross-appeal with the clerk of the appellate court, together with proof of service on the prosecuting attorney, within 10 days after service of notice of the appeal by the prosecuting attorney, provided that in postconviction cases the notice of cross-appeal may be filed within 60 days after the entry of the order granting or denying postconviction relief, if that is later. Failure to serve the notice does not deprive the Court of Appeals of jurisdiction over defendant’s cross-appeal, but is ground only for such action as the Court of Appeals deems appropriate, including dismissal of the cross-appeal.

Subd. 4. Conditions of Release. Upon appeal by the prosecuting attorney of a pretrial order, the conditions for defendant’s release pending the appeal shall be governed by Rule 6.02, Subd. 1 and Subd. 2. The court shall also consider that the defendant, if not released, may be confined for a longer time pending the appeal than would be possible under the potential sentence for the offense charged.

Subd. 5. Procedure Upon Appeal of Postconviction Order.

(1) Service and Filing. An appeal shall be taken by filing a notice of appeal with the clerk of the appellate court together with proof of service on the opposing counsel and the clerk of the trial court in which the order appealed from is entered. No fees or bond for costs shall be required for the appeal. Unless otherwise ordered by the appellate court, a certified copy of the order appealed from or a statement of the case need not be filed. Failure of the prosecuting attorney to take any other step than timely filing the notice of appeal does not affect the validity of the appeal, but is ground only for such action as the Court of Appeals deems appropriate, including dismissal of the appeal.

(2) Time for Taking an Appeal. An appeal by the prosecuting attorney of an order granting postconviction relief shall be taken within 60 days after entry of the order.

(3) Other Procedures. The provisions of Rule 24.02, Subd. 4(2), concerning the contents of the notice of appeal, Rule 24.02, Subd, 7, concerning the record on appeal, Rule 24.02, Subd. 8, concerning transcript of the proceedings and transmission of the transcript on record, Rule 24.02, Subd. 9, concerning briefs, Rule 24.02, Subd. 12, concerning oral argument, and Rule 24.04, Subd. 2(5), concerning attorney’s fees, shall apply to appeals by the prosecuting attorney of an order granting postconviction relief.

Subd. 6. Procedure Upon Appeal From Judgment of Acquittal or Vacation of Judgment After a Jury Verdict of Guilty.

(1) Service and Filing. An appeal shall be taken by filing a notice of appeal with the clerk of the appellate court together with proof of service on the opposing counsel and the clerk of the trial court in which the judgment or order appealed from is entered. No fees or bond for costs shall be required for the appeal. Unless otherwise ordered by the appellate court, a certified copy of the judgment or order appealed from or a statement of the case need not be filed. Failure of the prosecuting attorney to take any other step than timely filing the notice of appeal does not affect the validity of the appeal, but is ground only for such action as the Court of Appeals deems appropriate, including dismissal of the appeal.

(2) Time for Taking an Appeal. An appeal by the prosecuting attorney from either a judgment of acquittal after a jury verdict of guilty, or an order vacating judgment and dismissing the case after a jury verdict of guilty, shall be taken within 10 days after entry of the judgment or order.

(3) Stay and Conditions of Release. Upon oral notice that the prosecuting attorney intends to appeal from a judgment of acquittal after a jury verdict of guilty or from an order vacating judgment and dismissing the case after a jury verdict of guilty, the trial court shall order a stay of execution of the judgment or order of 10 days to allow time to perfect the appeal. The trial court shall also determine the conditions for defendant’s release pending the appeal, which conditions shall be governed by Rule 6.02, Subd. 1 and 2.

(4) Other Procedures. The provisions of Rule 24.02, Subd. 4(2), concerning the contents of the notice of appeal, Rule 24.02, Subd, 7, concerning the record on appeal, Rule 24.02, Subd. 8, concerning transcript of the proceedings and transmission of the transcript and record, Rule 24.02, Subd. 9, concerning briefs, Rule 24.02, Subd. 12, concerning oral argument, and Rule 24.04, Subd. 2(5), concerning attorney’s fees, shall apply to appeals by the prosecuting attorney from either a judgment of acquittal after a jury verdict of guilty or an order vacating judgment and dismissing the case after a jury verdict of guilty.

(5) Cross-Appeals. Upon appeal by the prosecuting attorney under this subdivision, the defendant may obtain review of any pretrial and trial orders and issues, by filing a notice of cross-appeal with the clerk of the appellate court, together with proof of service on the prosecuting attorney, within 30 days of the prosecutor filing notice of appeal or within 10 days after delivery of the transcript by the reporter, whichever is later. If this election is made and the jury’s verdict is ultimately reinstated, the defendant may not file a second appeal from the entry of judgment of conviction unless it is limited to issues, such as sentencing, that could not have been raised in the cross-appeal. The defendant may also elect to respond to the issues raised in the prosecutor’s appeal and reserve appeal of any other issues until such time as the jury’s verdict of guilty is reinstated. If reinstatement occurs, the defendant may appeal from the judgment using the procedures set forth in Rule 24.02, Subd. 2.

Rule 24.05. Appeal from Sentence Imposed or Stayed

Subd. 1. Procedure. The following procedures shall apply to the appeal of a sentence imposed or stayed as permitted by these rules:

(1) Notice of Appeal and Brief. Any party appealing a sentence shall file with the clerk of the appellate court, within 90 days after judgment and sentencing, (a) a notice of appeal, (b) 9 copies of an informal letter brief setting forth the arguments concerning the illegality or inappropriateness of the sentence, (c) an affidavit of service of the notice upon opposing counsel and the clerk of the trial court in which the sentence was imposed or stayed, and (d) an affidavit of service of the brief upon opposing counsel. A defendant appealing the sentence and the judgment of conviction has the option of combining the two appeals into a single appeal; when this option is selected the procedures established by Rule 24.02 of these rules shall continue to apply. The clerk of the appellate court shall not accept a notice of appeal from sentence unless accompanied by the requisite briefs and affidavit of service.

(2) Transmission of Record. Upon receiving a copy of the notice of appeal, the clerk of the trial court shall immediately forward to the clerk of the appellate court, (a) a transcript of the sentencing hearing and any written explanation of sentence by the trial court which is not already included in the transcript, (b) the sentencing guidelines worksheet, and (c) any presentence investigation report.

(3) Respondent’s Brief. Within 10 days of service upon respondent of the copy of the notice of appeal and appellant’s brief, a respondent choosing to respond shall serve an informal letter brief upon appellant and file with the clerk of the appellate court 9 copies of such brief.

(4) Other Procedures. The provisions of Rule 24.02, Subd. 4(2) concerning the contents of the notice of appeal, Rule 24.02, Subd. 5 concerning stays, Rule 24.02, Subd. 6 concerning the release of the defendant on appeal, and Rule 24.02, Subd. 12 concerning oral argument shall apply to sentence appeals under this rule.

Subd. 2. Action on Appeal. On appeal of a sentence, the court may review the sentence imposed or stayed to determine whether the sentence is inconsistent with statutory requirements, unreasonable, inappropriate, excessive, unjustifiably disparate, or not warranted by the findings of fact issued by the sentencing court. This review shall be in addition to all other powers of review presently existing. The court may dismiss or affirm the appeal, vacate or set aside the sentence imposed or stayed and direct entry of an appropriate sentence or order further proceedings to be had as the court may direct.

RULE 25. DISMISSAL

Rule 25.01. By Prosecuting Attorney

The prosecuting attorney may in writing or on the record, stating the reasons therefor, including the satisfactory completion of a pretrial diversion program, dismiss a complaint or tab charge without leave of court. In gross misdemeanor cases, if the dismissal is on the record, it shall be transcribed and filed.

Rule 25.02. By Court

If there is unnecessary delay by the prosecution in bringing a defendant to trial, the court may dismiss the complaint or tab charge.

RULE 26. HARMLESS ERROR AND PLAIN ERROR

Rule 26.01. Harmless Error

Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.

Rule 26.02. Plain Error

Plain errors or defects affecting substantial rights may be considered by the court upon motions for new trial, post-trial motions, and on appeal although they were not brought to the attention of the trial court.

RULE 27. MOTIONS

An application to the court for an order shall be by motion. A motion other than one made during a trial or hearing shall be in writing unless the court or these rules permit it to be made orally. The motion shall state the grounds upon which it is made and shall set forth the relief or order sought and may be supported by affidavit.

 

RULE 28. SERVICE AND FILING OF PAPERS

Rule 28.01. Service; Where Required

Written motions other than those which are heard ex parte, written notices, and other similar papers shall be served upon each of the parties.

Rule 28.02. Service; How Made

Whenever under these rules or by an order of court service is required or permitted to be made upon a party represented by an attorney, the service shall be made upon the attorney unless service upon the party personally is ordered by the court. Service upon the attorney or upon a party shall be made in the manner provided in civil actions or as ordered by the court or as required by these rules.

Rule 28.03. Notice of Orders

Immediately upon the entry of an order made on a written motion subsequent to arraignment the clerk shall mail to each party a copy thereof and shall make a record of the mailing. Lack of notice of the entry by the clerk does not affect the time to appeal or relieve or authorize the court to relieve a party for failure to appeal within the time allowed, except as permitted by these rules.

Rule 28.04. Filing

(a) Except as provided in Rule 9.03, Subd. 9, search warrants and search warrant applications, affidavits and inventories, including statements of unsuccessful execution, and papers required to be served shall be filed with the court. Papers shall be filed as provided in civil actions.

(b) Except as otherwise provided by this rule, search warrants and related documents need not be filed until after execution of the search or the expiration of ten days.

(c) A complaint, application, or affidavit requesting a warrant directing the arrest of a person or authorizing a search and seizure may contain or be accompanied by a request by the prosecuting attorney that the complaint, application or affidavit, any supporting evidence or information, and any order granting the request, not be filed.

(d) An order shall be issued granting the request in whole or in part, if the judge finds from affidavits, sworn testimony or evidence that there are reasonable grounds to believe that: (1) in the case of complaint or arrest documents, such filing may lead to any person to be arrested fleeing or hiding or otherwise preventing the execution of the warrant or (2) in the case of a search warrant application or affidavit, such filing may cause this search or a related search to be unsuccessful or could create a substantial risk of injuring an innocent person or severely hampering an ongoing investigation.

(e) The order shall further direct that upon the execution of and return of an arrest warrant, the filing required by Subd. (a) shall forthwith be complied with; and in the case of a search warrant, the application or affidavit in support thereof shall be filed forthwith following the commencement of any criminal proceeding utilizing evidence obtained in or as a result of the search, or at any other such time as directed by the judge. Until such filing, the documents and materials ordered withheld from filing shall be retained by the judge or the judge’s designee.

Rule 28.05. Facsimile Transmission

Facsimile transmission may be used for the sending of all complaints, orders, summons, warrants, and other documents including orders and warrants authorizing the interception of communications and arrest and search warrants. All procedural and statutory requirements for the issuance of a warrant or order, including the making of a record of the proceedings, shall be met. For all procedural and statutory purposes, a facsimile order or warrant issued by the court shall have the same force and effect as the original. The original order or warrant, along with any other documents, including affidavits, shall be delivered to the court administrator of the county in which the request or application therefor was made. Any facsimile transmissions received by the court shall be filed as required by Rule 28.04 for the original of the document transmitted.

RULE 29. TIME

Rule 29.01. Computation

Except as provided by Rules 3.02, Subd. 2, 4.02, Subd. 5(1), 4.02, Subd. 5(3), and 4.03, time shall be computed as follows:

The day of the act or event from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday, a Sunday, or a legal holiday, in which event the period runs until the end of the next day which is not a Saturday, a Sunday, or a legal holiday. When a period of time prescribed or allowed is seven days or less, intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation. As used in these rules, "legal holiday" includes New Year’s Day, Washington’s Birthday (President’s Birthday), Memorial Day, Independence Day, Labor Day, Columbus Day, Veteran’s Day, Thanksgiving Day, Christmas Day, and any other day appointed as a holiday by the President of the United States, the Congress of the United States, or the Senate of the United States.

Rule 29.02. Enlargement

When an act is required or allowed to be done at or within a specified time, the court for cause shown may at any time in its discretion (1) with or without motion or notice, order the period enlarged if request therefor is made before the expiration of the period originally prescribed or as extended by previous order, or (2) upon motion made after the expiration of the specified period permit the act to be done if the failure to act was the result of excusable neglect; but the court may not extend the time for taking any action under Rules 22.03, Subd. 17(3); 22.04, Subd. 1(3); or 22.04, Subd. 2, or except as provided by Rule 24.02, Subd. 4(3).

Rule 29.03 For Motions; Affidavits

A written motion, other than one which may be heard ex parte, and notice of the hearing thereof shall be served not later than five days before the time specified for the hearing unless a different period is fixed by rule or order of court. For cause shown such an order may be made on ex parte application. When a motion is supported by affidavit, the affidavit shall be served not less than one day before the hearing unless the court permits them to be served at a later time.

Rule 29.04. Additional Time After Service by Mail

Whenever a party has the right or is required to do an act within a prescribed period after the service of a notice or other paper upon the party and the notice or other paper is served upon the party by mail, three days shall be added to the prescribed period.

Rule 29.05. Unaffected by Expiration

The continued existence or the expiration of a term of court does not affect or limit the period of time provided for the doing of any act or the taking of any proceeding, or affect the power of the court to do any act or take any proceeding in any action which has been pending before it.

RULE 30. COURTS AND CLERKS

The tribal court shall be deemed open at all times for the purpose of filing any proper paper, of issuing and returning or certifying process and of making motions and orders. Unless the court orders otherwise, the court shall be deemed open at all times, except legal holidays, for the transaction of any other business that may be presented. The clerk’s office with the clerk or a deputy in attendance shall be open during business hours on all days except Saturdays, Sundays, or particular legal holidays.

RULE 31. SEARCH WARRANTS UPON ORAL TESTIMONY

Rule 31.01. General Rule

Subject to the limitations contained in this rule, an officer legally authorized to request a search warrant may make such a request upon sworn oral testimony, in whole or in part, to a judge or judicial officer. Oral testimony may be presented via telephone, radio, or other similar means of communication. Any written submissions may be presented or communicated by facsimile transmission as well as by other appropriate means.

Rule 31.02. When Request by Oral Testimony Appropriate

An oral request for a search warrant may only be made in circumstances that make it reasonable to dispense with a written affidavit. The judge or judicial officer should make this determination the initial focus of the oral warrant request.

Rule 31.03. Application

The person requesting the warrant shall prepare a document to be known as a duplicate original warrant and shall read the duplicate original warrant, verbatim, to the judge or judicial officer. The judge or judicial officer shall enter, verbatim, what is read on a document to be known as the original warrant. The judge or judicial officer may direct that the warrant be modified and any modification shall be included on both the original and the duplicate original warrant.

Rule 31.04. Testimony Requirements

When the officer informs the judge or judicial officer that the purpose of the communication is to request a search warrant, the judge or judicial officer shall:

(a) Immediately begin recording, electronically, stenographically, or longhand verbatim the testimony of all persons involved in making the warrant application. Alternatively, with the permission of the judge or judicial officer, the recording may be done by the applicant for the search warrant, provided that the tape or other medium on which the record is made shall be submitted to the issuing judge or judicial officer as soon as practical and, in any event, not later than the time for filing as provided by Rule 28.04.

(b) Identify for the record and place under oath each person whose testimony forms a basis of the application and each person applying for the warrant.

(c) As soon after the testimony is received as practical, the judge or judicial officer shall direct that the record of the oral warrant request be transcribed. The judge or judicial officer shall certify the accuracy of the transcription. If a longhand verbatim record is made the judge or judicial officer shall sign it.

Rule 31.05. Issuance of Warrant

If the judge or judicial officer is satisfied that the circumstances are such as to make it reasonable to dispense with a written affidavit, that the warrant request is in all other ways in conformity with the law, and that probable cause for issuance of the warrant exists, the judge or judicial officer shall order the issuance of a warrant by directing the person requesting the warrant to sign the judge or judicial officer’s name on the duplicate original warrant. The judge or judicial officer shall immediately sign the original warrant and enter on the face of the original warrant the exact time when the warrant was signed. The finding of probable cause for a warrant upon oral testimony may be based on the same kind of evidence as is sufficient for a warrant upon affidavit.

Rule 31.06. Filing

The filing of the original warrant, the duplicate original warrant, the certified transcript of the oral application for the warrant, any longhand verbatim record, and any related documents shall be in accordance with Rule 28.04. If the oral warrant request is recorded on tape or other electronic recording device, the original tape or other medium on which the record is made shall be filed with the court also.

Rule 31.07. Contents of Warrant

The contents of the warrant issued upon oral testimony shall be the same as the contents of a warrant upon affidavit.

Rule 31.08. Execution

The execution of a warrant obtained through oral testimony shall be subject to the same laws and principles that govern execution of any other search warrant. In addition, the person who executes the warrant shall enter the exact time of execution on the face of the duplicate original warrant.

Final Draft 8-29-97

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