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In the Matter of

)

ARIZONA RULES OF CRIMINAL

)

PROCEDURE

)

__________________________________)

Arizona Supreme Court

No. R-17-0002

FILED 08/31/2017

ORDER

AMENDING THE ARIZONA RULES OF

CRIMINAL PROCEDURE

A petition having been filed proposing to amend the Arizona

Rules of Criminal Procedure and comments having been received,

upon consideration,

IT IS ORDERED that the current provisions of the Arizona Rules

Criminal Procedure, all associated comments, and Form 7 of Rule 41

(but none of Rule 41’s other forms, which shall remain in effect),

are hereby abrogated, effective January 1, 2018.

IT IS FURTHER ORDERED that the proposed amended Arizona Rules

of Criminal Procedure, associated comments, and Forms 7 and 30 of

proposed amended Rule 41, as set forth in Attachment A, are hereby

adopted, effective January 1, 2018, and shall apply:

(1)

in all actions filed on or after January 1, 2018;

(2)

in all other actions pending on January 1, 2018,

and

except to the extent that the court in an affected action

Arizona Supreme Court No. R-17-0002

Page 2 of 216

determines that applying the rule or amendment would be infeasible

or work an injustice, in which event the former rule or procedure

applies.

DATED this 31st day of August, 2017.

________/S/_________

SCOTT BALES

Chief Justice

Arizona Supreme Court No. R-17-0002

Page 3 of 216

TO:

Hon. Joseph C. Welty

Hon. David L. Mackey

Elizabeth B. Ortiz

Dominic Emil Draye

David K. Byers

Hon. Ronald S. Reinstein

Hon. Juan Pablo Guzman

Mark C. Faull

Jon M. Sands

Jennifer Y. Garcia

Alexandra LeClair

Ellen Hoecker

Charlotte G Merrill

Amy Armstrong

Emily Skinner

Colleen Clase

Steven J. Twist

Jessica A. Gattuso

Eric John Aiken

Beverly J. Rudnick

Bill V. Amato

Rule 28 Distribution list

iii

ATTACHMENT A

Arizona Rules of Criminal Procedure

I. General Provisions ......................................................................................................... 3

Rule 1. Scope, Purpose and Construction, and Other General Provisions ........... 3

Rule 1.1. Scope ........................................................................................................ 3

Rule 1.2. Purpose and Construction ........................................................................ 3

Rule 1.3. Computation of Time ............................................................................... 3

Rule 1.4. Definitions................................................................................................ 4

Rule 1.5. Interactive Audiovisual Systems ............................................................. 5

Rule 1.6. Form of Documents ................................................................................. 6

Rule 1.7. Filing and Service of Documents............................................................. 9

Rule 1.8. Clerk’s Distribution of Minute Entries and Other Documents .............. 11

Rule 1.9. Motions, Oral Argument, and Proposed Orders .................................... 11

II. Preliminary Proceedings ............................................................................................ 12

Rule 2. Commencement of Criminal Proceedings ................................................. 12

Rule 2.1. Misdemeanors ........................................................................................ 12

Rule 2.2. Felonies .................................................................................................. 12

Rule 2.3. Content of Complaint............................................................................. 13

Rule 2.4. Duty of Magistrate upon Presentation of Complaint ............................. 13

Rule 2.5. Refusal to Provide a DNA Sample ........................................................ 13

Rule 3. Arrest Warrant or Summons upon Commencement of Criminal

Proceedings ................................................................................................................. 14

Rule 3.1. Issuance of Summons or Warrant .......................................................... 14

Rule 3.2. Content of a Warrant or Summons ........................................................ 15

Rule 3.3. Execution and Return of Warrant; Defective Warrants ......................... 15

Rule 3.4. Service of Summons .............................................................................. 16

Rule 4. Initial Appearance ....................................................................................... 18

Rule 4.1. Procedure upon Arrest ........................................................................... 18

Rule 4.2. Initial Appearance .................................................................................. 19

Rule 4.3. Initial Appearance Masters .................................................................... 20

Rule 5. Preliminary Hearing .................................................................................... 20

Rule 5.1. Right to a Preliminary Hearing; Waiver; Continuance.......................... 20

Rule 5.2. Summoning Witnesses; Record of Proceedings .................................... 21

Rule 5.3. Nature of the Preliminary Hearing......................................................... 22

Rule 5.4. Determining Probable Cause ................................................................. 22

Rule 5.5. Review of a Magistrate’s Probable Cause Determination ..................... 23

Rule 5.6. Transmittal and Transcription of the Record ......................................... 23

Rule 5.7. Preservation of Recording ..................................................................... 24

Rule 5.8. Notice if an Arraignment Is Not Held ................................................... 24

III. Rights of Parties ........................................................................................................ 24

Rule 6. Right to Counsel; Duties of Counsel; Court-Appointed Attorneys,

Investigators, and Experts......................................................................................... 24

Rule 6.1. Right to Counsel; Right to a Court-Appointed Attorney; Waiver of the

Right to Counsel ..................................................................................................... 24

Rule 6.2. Appointment of Counsel for Indigent Defendants................................. 25

Rule 6.3. Duties of Counsel; Withdrawal.............................................................. 26

Rule 6.4. Determining Whether a Person Is Indigent ........................................... 27

Rule 6.5. Manner of Appointment......................................................................... 27

Rule 6.6. Compensation of Appointed Counsel .................................................... 28

Rule 6.7. Appointment of Investigators and Expert Witnesses for Indigent

Defendants .............................................................................................................. 28

Rule 6.8. Standards for Appointment and Performance of Counsel in Capital

Cases ....................................................................................................................... 29

Rule 7. Release ........................................................................................................... 31

Rule 7.1. Definitions.............................................................................................. 31

Rule 7.2. Right to Release ..................................................................................... 32

Rule 7.3. Conditions of Release ............................................................................ 35

Rule 7.4. Procedure ............................................................................................... 36

Rule 7.5. Review of Conditions; Revocation of Release ...................................... 37

Rule 7.6. Transfer and Disposition of Bond .......................................................... 39

Rule 8. Speedy Trial .................................................................................................. 41

Rule 8.1. Priorities in Scheduling Criminal Cases ................................................ 41

Rule 8.2. Time Limits ............................................................................................ 41

Rule 8.3. Prisoner’s Right to a Speedy Trial ......................................................... 42

Rule 8.4. Excluded Periods ................................................................................... 43

Rule 8.5. Continuing a Trial Date ......................................................................... 44

Rule 8.6. Denial of Speedy Trial ........................................................................... 44

Rule 8.7. Accelerating Trial .................................................................................. 44

Rule 9. Presence of the Defendant, Witnesses, and Spectators............................. 44

Rule 9.1. The Defendant’s Waiver of the Right to Be Present ............................. 44

Rule 9.2. Defendant’s Forfeiture of the Right to Be Present Due to Disruptive

Conduct................................................................................................................... 44

Rule 9.3. Exclusion of Witnesses and Spectators ................................................. 45

Rule 10. Change of Judge or Place of Trial ............................................................ 46

Rule 10.1. Change of Judge for Cause .................................................................. 46

Rule 10.2. Change of Judge as a Matter of Right.................................................. 47

Rule 10.3. Changing the Place of Trial ................................................................. 49

Rule 10.4. Transfer to Another County ................................................................. 49

Rule 11. Incompetence and Mental Examinations ................................................ 50

Rule 11.1. Definitions, Effect of Incompetence, and Right to Counsel ................ 50

Rule 11.2. Motion for an Examination of a Defendant’s Competence to Stand

Trial ........................................................................................................................ 50

Rule 11.3. Appointment of Experts ....................................................................... 51

Rule 11.4. Disclosure of Experts’ Reports ............................................................ 52

Rule 11.5. Hearing and Orders .............................................................................. 53

Rule 11.6. Later Hearings ...................................................................................... 56

Rule 11.7. Privilege and Confidentiality ............................................................... 57

Rule 11.8. Examination of a Defendant’s Mental Status at the Time of the Offense

................................................................................................................................ 58

Rule 11.9. Capital Cases........................................................................................ 58

IV. Pretrial Procedures ................................................................................................... 59

Rule 12. The Grand Jury.......................................................................................... 59

Section One: Rules for Grand Juries ....................................................................... 59

vii

Rule 12.1. Selecting and Preparing Grand Jurors ................................................. 59

Rule 12.2. Grounds to Disqualify a Grand Juror................................................... 59

Rule 12.3. Grand Jury Foreperson ......................................................................... 60

Rule 12.4. Who May Be Present During Grand Jury Sessions ............................. 60

Rule 12.5. Appearance of a Person Under Investigation ...................................... 60

Rule 12.6. Indictment ............................................................................................ 61

Rule 12.7. Record of Grand Jury Proceedings ...................................................... 61

Rule 12.8. Challenge to a Grand Jury or a Grand Juror ........................................ 61

Rule 12.9. Challenge to Grand Jury Proceedings .................................................. 62

Section Two: Rules for State Grand Juries ............................................................. 62

Rule 12.21. Applicability of Other Provisions of Rule 12 .................................... 62

Rule 12.22. Selection and Preparation of State Grand Jurors ............................... 63

Rule 12.23. Size of State Grand Jury .................................................................... 63

Rule 12.24. Location of State Grand Jury Sessions .............................................. 63

Rule 12.25. Preservation of State Grand Jury Evidence ....................................... 64

Rule 12.26. Return of Indictment .......................................................................... 64

Rule 12.27. Disclosure of a Lack of Indictment.................................................... 64

Rule 12.28. Challenge to State Grand Jury, Grand Juror, or Grand Jury

Proceedings............................................................................................................. 64

Rule 12.29. Expenses of Prospective and Selected State Grand Jurors ................ 65

Rule 13. Indictment and Information ..................................................................... 65

Rule 13.1. Definitions and Construction ............................................................... 65

Rule 13.2. Timeliness of an Information and Dismissal ....................................... 66

Rule 13.3. Joinder .................................................................................................. 66

Rule 13.4. Severance ............................................................................................. 66

Rule 13.5. Amending Charges; Defects in the Charging Document .................... 67

Rule 14. Arraignment ............................................................................................... 68

Rule 14.1. General Provisions ............................................................................... 68

Rule 14.2. When an Arraignment Is Held ............................................................. 68

Rule 14.3. The Defendant’s Presence ................................................................... 69

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Rule 14.4. Proceedings at Arraignment................................................................. 69

Rule 14.5. Proceedings in Counties Where No Arraignment Is Held ................... 70

Rule 15. Disclosure .................................................................................................... 70

Rule 15.1. The State’s Disclosures ........................................................................ 70

Rule 15.2. The Defendant’s Disclosures ............................................................... 75

Rule 15.3. Depositions .......................................................................................... 79

Rule 15.4. Disclosure Standards............................................................................ 80

Rule 15.5. Excision and Protective Orders............................................................ 82

Rule 15.6. Continuing Duty to Disclose; Final Disclosure Deadline; Extension . 82

Rule 15.7. Disclosure Violations and Sanctions ................................................... 84

Rule 15.8. Disclosure Before a Plea Agreement Expires or Is Withdrawn;

Sanctions................................................................................................................. 85

Rule 16. Pretrial Motions and Hearings ................................................................. 85

Rule 16.1. General Provisions ............................................................................... 85

Rule 16.2. Procedure on Pretrial Motions to Suppress Evidence.......................... 86

Rule 16.3. Pretrial Conference .............................................................................. 87

Rule 16.4. Dismissal of Prosecution ..................................................................... 88

Rule 17. Pleas of Guilty and No Contest; Submitting a Case on the Record ...... 88

Rule 17.1. The Defendant’s Plea ........................................................................... 88

Rule 17.2. Advising of Rights and Consequences of a Guilty or No Contest Plea

................................................................................................................................ 91

Rule 17.3. A Court’s Duty to Determine Whether a Plea Is Entered Voluntarily

and Intelligently ...................................................................................................... 92

Rule 17.4. Plea Negotiations and Agreements ...................................................... 92

Rule 17.5. Withdrawal of a Plea............................................................................ 93

Rule 17.6. Admitting a Prior Conviction .............................................................. 93

Rule 17.7. Submitting a Case on the Record ......................................................... 93

Rule 18. Trial by Jury; Waiver; Selection and Preparation of Jurors ................ 94

Rule 18.1. Trial by Jury ......................................................................................... 94

Rule 18.2. Additional Jurors.................................................................................. 95

Rule 18.3. Jurors’ Information .............................................................................. 95

Rule 18.4. Challenges ............................................................................................ 96

Rule 18.5. Procedure for Jury Selection ................................................................ 98

Rule 18.6. Jurors’ Conduct .................................................................................. 101

Rule 19. Trial ........................................................................................................... 103

Rule 19.1. Conduct of Trial ................................................................................. 103

Rule 19.2. Presence of the Defendant at Trial ..................................................... 105

Rule 19.3. Admonitions....................................................................................... 106

Rule 19.4. A Judge’s Death, Illness, or Other Incapacity ................................... 106

Rule 19.5. Presence of a Representative of a Minor or Incapacitated Victim .... 107

Rule 19.6. Sequestration ...................................................................................... 107

Rule 20. Judgment of Acquittal or Unproven Aggravator ................................. 107

Rule 21. Jury Instructions and Verdict Forms .................................................... 108

Rule 21.1. Applicable Law .................................................................................. 108

Rule 21.2. Requests for Instructions and Verdict Forms .................................... 108

Rule 21.3. Rulings on Instructions and Verdict Forms ....................................... 108

Rule 21.4. Verdict Forms for Necessarily Included Offenses or Attempts ........ 108

Rule 22. Deliberations ............................................................................................. 109

Rule 22.1. Instructions and Retirement ............................................................... 109

Rule 22.2. Materials Used During Deliberations ................................................ 109

Rule 22.3. Repeating Testimony and Additional Instructions ............................ 109

Rule 22.4. Assisting Jurors at Impasse ................................................................ 110

Rule 22.5. Discharging a Jury ............................................................................. 111

Rule 23. Verdict ....................................................................................................... 111

Rule 23.1. Form of Verdict; Sealed Verdict ........................................................ 111

Rule 23.2. Types of Verdicts ............................................................................... 112

Rule 23.3. Polling the Jury .................................................................................. 112

Rule 24. Post-Trial Motions ................................................................................... 113

Rule 24.1. Motion for New Trial ......................................................................... 113

Rule 24.2. Motion to Vacate Judgment ............................................................... 114

Rule 24.3. Modification of Sentence ................................................................... 115

Rule 24.4. Clerical Error ..................................................................................... 116

Rule 25. Procedure After a Verdict or Finding of Guilty Except Insane .......... 116

Rule 26. Judgment, Presentence Report, Presentencing Hearing, Sentence ..... 116

Rule 26.1. Definitions; Scope.............................................................................. 116

Rule 26.2. Time to Render Judgment .................................................................. 116

Rule 26.3. Sentencing Date and Time Extensions .............................................. 117

Rule 26.4. Presentence Report ............................................................................ 117

Rule 26.5. Diagnostic Evaluation and Mental Health Examination ................... 118

Rule 26.6. Court Disclosure of Reports Before Sentencing ................................ 118

Rule 26.7. Presentencing Hearing; Prehearing Conference ................................ 119

Rule 26.8. The State’s Disclosure Duty; Objections and Corrections to a

Presentence Report ............................................................................................... 120

Rule 26.9. The Defendant’s Presence ................................................................. 120

Rule 26.10. Pronouncing Judgment and Sentence .............................................. 120

Rule 26.11. A Court’s Duty After Pronouncing Sentence .................................. 121

Rule 26.12. Defendant’s Compliance with Monetary Terms of a Sentence ....... 122

Rule 26.13. Consecutive Sentences ..................................................................... 123

Rule 26.14. Resentencing .................................................................................... 123

Rule 26.15. Special Procedures upon Imposing a Death Sentence ..................... 123

Rule 26.16. Entry of Judgment and Sentence; Warrant of Authority to Execute

Sentence ................................................................................................................ 123

Rule 27. Probation and Probation Revocation ..................................................... 124

Rule 27.1. Conditions and Regulations of Probation .......................................... 124

Rule 27.2. Intercounty Transfers ......................................................................... 124

Rule 27.3. Modification of Conditions or Regulations ....................................... 126

Rule 27.4. Early Termination of Probation ......................................................... 127

Rule 27.5. Order and Notice of Discharge .......................................................... 127

Rule 27.6. Petition to Revoke Probation and Securing the Probationer’s Presence

.............................................................................................................................. 128

Rule 27.7. Initial Appearance After Arrest ......................................................... 128

Rule 27.8. Probation Revocation ......................................................................... 128

Rule 27.9. Admissions by the Probationer .......................................................... 130

Rule 27.10. Victims’ Rights in Probation Proceedings ....................................... 130

Rule 27.11. Probation Review Hearing Regarding Sex Offender Registration .. 131

Rule 28. Retention and Destruction of Records and Evidence ........................... 132

Rule 28.1. Duties of the Clerk ............................................................................. 132

Rule 28.2. Disposition of Evidence ..................................................................... 133

Rule 28.3. Retroactive Application ..................................................................... 134

Rule 29. Restoring Civil Rights or Vacating a Conviction .................................. 134

Rule 29.1. Grounds; Notice ................................................................................. 134

Rule 29.2. Application ......................................................................................... 134

Rule 29.3. Hearing Date ...................................................................................... 135

Rule 29.4. State’s Response ................................................................................ 135

Rule 29.5. Disposition ......................................................................................... 135

Rule 29.6. Special Provisions for Sex Trafficking Victims ................................ 135

Rule 30.

[Reserved] ............................................................................................... 135

Rule 31. Appeals ...................................................................................................... 136

Section One: General Provisions ............................................................................ 136

Rule 31.1. Scope; Precedence; Definitions ......................................................... 136

Rule 31.2. Notice of Appeal or Notice of Cross-Appeal .................................... 136

Rule 31.3. Suspension of These Rules; Suspension of an Appeal; Computation of

Time; Modifying a Deadline ................................................................................ 139

Rule 31.4. Consolidation of Appeals................................................................... 140

Rule 31.5. Appointment of Counsel on Appeal; Waiver of the Right to Appellate

Counsel ................................................................................................................. 141

Rule 31.6. Filing Documents with an Appellate Court; Document Format; Service

and Proof of Service ............................................................................................. 142

Rule 31.7. Stay of Proceedings ........................................................................... 143

Section Two: The Record on Appeal; Briefs and Argument ............................... 143

Rule 31.8. The Record on Appeal ....................................................................... 143

Rule 31.9. Transmission of the Record to the Appellate Court .......................... 148

Rule 31.10. Content of Briefs .............................................................................. 150

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Rule 31.11. Appendix .......................................................................................... 152

Rule 31.12. Length and Form of Briefs............................................................... 153

Rule 31.13. Due Dates; Filing and Service of Briefs .......................................... 154

Rule 31.14. Provisions Applicable Only to Briefs in Capital Case Appeals ...... 157

Rule 31.15. Amicus Curiae ................................................................................. 158

Rule 31.16. Supplemental Citation of Legal Authority ...................................... 159

Rule 31.17. Oral Argument in the Court of Appeals .......................................... 160

Section Three: Appellate Court Procedures and Decisions ................................. 161

Rule 31.18. Petition for Transfer ......................................................................... 161

Rule 31.19. An Appellate Court’s Orders and Decisions ................................... 161

Rule 31.20. Motion for Reconsideration ............................................................. 162

Rule 31.21. Petition for Review .......................................................................... 163

Rule 31.22. Appellate Court Mandates ............................................................... 167

Rule 31.23. Warrant of Execution ....................................................................... 169

Rule 31.24. Voluntary Dismissal ........................................................................ 170

Rule 32. Post-Conviction Relief ............................................................................. 170

Rule 32.1. Scope of Remedy ............................................................................... 170

Rule 32.2. Preclusion of Remedy ........................................................................ 172

Rule 32.3. Nature of a Post-Conviction Proceeding and Relation to Other

Remedies .............................................................................................................. 172

Rule 32.4. Filing of Notice and Petition, and Other Initial Proceedings............. 173

Rule 32.5. Contents of a Petition for Post-Conviction Relief ............................. 177

Rule 32.6. Response and Reply; Amendments; Review ..................................... 178

Rule 32.7. Informal Conference .......................................................................... 178

Rule 32.8. Evidentiary Hearing ........................................................................... 179

Rule 32.9. Review ............................................................................................... 180

Rule 32.10. Review of an Intellectual Disability Determination in Capital Cases

.............................................................................................................................. 183

Rule 32.11. Extensions of Time; Victim Notice and Service ............................. 183

Rule 32.12. Post-Conviction Deoxyribonucleic Acid Testing ............................ 184

xiii

V. Miscellaneous ............................................................................................................ 186

Rule 33. Criminal Contempt .................................................................................. 186

Rule 33.1. Definition ........................................................................................... 186

Rule 33.2. Summary Disposition of Contempt ................................................... 187

Rule 33.3. Disposition of Contempt by Notice and Hearing .............................. 187

Rule 33.4. Jury Trial; Disqualification of the Citing Judge ................................ 188

Rule 34. Subpoenas ................................................................................................. 188

Rule 35.

[Reserved] ............................................................................................... 189

Rule 36.

[Reserved] ............................................................................................... 189

Rule 37. Report of Court Dispositions .................................................................. 189

Rule 37.1. Final Disposition Report .................................................................... 189

Rule 37.2. State’s Duty to File a Disposition Form with the Court .................... 189

Rule 37.3. Reporting Procedure .......................................................................... 190

Rule 37.4. Procedure on Appeal .......................................................................... 190

Rule 38. Suspension of Prosecution for a Deferred Prosecution Programs ...... 191

Rule 38.1. Application for a Suspension Order................................................... 191

Rule 38.2. Resuming Prosecution ....................................................................... 191

Rule 38.3. Dismissal of Prosecution ................................................................... 191

Rule 39. Victims’ Rights ......................................................................................... 192

Rule 40. Transfer for Juvenile Prosecution .......................................................... 197

Rule 41. Forms......................................................................................................... 199

Form 30. Certificate of Compliance .................................................................... 203

xiv

Rules of Criminal Procedure

Prefatory Comment to the 2018 Amendments

The 2018 amendments make extensive changes to the Arizona Rules of Criminal

Procedure (“ARCrP”).

These amendments “restyle” the ARCrP in a manner similar to the 2017 restyling of

the Arizona Rules of Civil Procedure. The 2018 version of the ARCrP adds informative

titles and subheadings, which should make particular rules and sections easier to locate. By

using clearer language and, if possible, plain English, these rules should be easier to

understand. The restyled rules avoid long sentences, ambiguous terminology (such as the

word “shall”), and legal jargon. These rules also use consistent formatting conventions and

terminology.

The amended rules also include substantive changes, including but not limited to the

following:

(a)

Rule 1 has been extensively reorganized and revised to include a

variety of provisions regarding the form of documents, service, and electronic filing. The

changes are generally consistent with the 2017 amendments to the Arizona Rules of Civil

Procedure.

(b)

Rule 7, which deals generally with release, conditions for release, and

revocation of release, has been revised to conform to the recommendations of the FAIR

Justice Task Force.

(c)

An amendment to Rule 8.2 requires that a trial begin within 90 days

after a court enters an order for a new trial under Rule 32 or in a collateral federal

proceeding.

(d)

A new Rule 11.8 provides a separate rule for the determination of a

defendant’s mental status at the time of the offense. Currently, that inquiry is in the same

rule, and subject to the same requirements, as a determination of a defendant’s competence

to stand trial.

(e)

New provisions were added to Rule 15 to augment a party’s disclosure

obligations if the party’s intends to call a “cold” expert, i.e., a witness who will be testifying

about general principles without reference to any of the facts of the case.

(f)

The multiple hearing provisions in former Rule 16.3, 16.4, and 16.5—

including provisions for an “omnibus” hearing—were replaced by a single Rule 16.3

governing pretrial conferences.

(g)

Rule 20 was amended to permit a defendant to make a post-verdict

motion for acquittal without having made such a motion before the close of the evidence.

(h)

Former Rule 30 was abrogated because it is largely duplicative of the

Superior Court Rules of Appellate Procedure-Criminal.

(i)

Rule 31, which deals generally with appeals in criminal cases, has

been extensively revised to conform the rule to changes made in 2015 and 2017 to the

Arizona Rules of Civil Appellate Procedure.

(j)

Rule 32.6 was amended to modify when a court must decide whether

a Rule 32 petition should be summarily dismissed. In a noncapital case, the court must still

rule within 20 days after the reply brief is due, but the amended rule permits the court to

extend that deadline if good cause exists. The amendments also increases the time

permitted for summary dismissal in a capital case to 60 days, and permits the court to

extend that deadline if good cause exists to do so.

(k)

Rule 32.12(d) was amended to remove the requirement that before

ordering a post-conviction DNA testing, a court must find that the evidence is in a condition

that allows DNA testing to be conducted. Given the current state of the art, such a

determination cannot be made without actually performing the testing.

The wording of an amended rule may be very different, or only slightly different, from

the rule that it replaces. The intent of these differences is to make the ARCrP more

functional, and easier to understand and use. Prior case law continues to be authoritative,

unless it would be inappropriate because of a new requirement or provision in these

amended rules.

The amended rules attempt to incorporate substantive requirements previously

contained within comments to the former ARCrP. Because of that, these amendments

delete most of those comments, along with comments that have long ago outlived their

usefulness. Parties may continue to refer to comments to pre-2018 versions of the ARCrP

to the extent those comments still apply to these amended rules.

I. General Provisions

Rule 1. Scope, Purpose and Construction, and Other General Provisions

Rule 1.1. Scope

These rules govern procedures in all criminal proceedings in Arizona state courts, unless

specifically stated otherwise in a particular rule.

Rule 1.2. Purpose and Construction

These rules are intended to provide for the just and speedy determination of every

criminal proceeding. Courts, parties, and crime victims should construe these rules to

secure simplicity in procedure, fairness in administration, the elimination of unnecessary

delay and expense, and to protect the fundamental rights of the individual while

preserving the public welfare.

Rule 1.3. Computation of Time

(a) General Time Computation. When computing any time period more than 24 hours

prescribed by these rules, by court order, or by an applicable statute, the following

rules apply:

(1) Day of the Event. Exclude the day of the act or event from which the designated

time period begins to run.

(2) Last Day. Include the last day of the period, unless it is a Saturday, Sunday or

legal holiday, in which case the period ends on the next day that is not a

Saturday, Sunday, or legal holiday.

(3) Time Period Less Than 7 Days. If the time period is less than 7 days, exclude

intermediate Saturdays, Sundays and legal holidays from the computation.

(4) Next Day. The “next day” is determined by counting forward when the period is

measured after an event, and backward when measured before an event.

(5) Additional Time After Service. If a party may or must act within a specified

time after service and service is made under a method authorized by Rule

1.7(c)(2)(C), (D), or (E), 5 calendar days are added after the specified time

period would otherwise expire under (a)(1)-(4), except as provided in Rule

31.3(d). This provision does not apply to the clerk’s distribution of notices,

minute entries, or other court-generated documents.

(b) If an Arraignment Is Not Held. If an arraignment is not held under Rule 14.5, the

date of arraignment for the purpose of computing time is the date the defendant

receives notice of the next court date under Rule 5.8.

Rule 1.4. Definitions

(a) The Defendant. “The defendant” is a person named as such in a complaint,

indictment, or information. “The defendant” as used in these rules includes an arrested

person who at the time of arrest is not named in a charging document. “The

defendant” in the context of certain rules includes the attorney who represents the

defendant.

(b) Limited Jurisdiction Court. A “limited jurisdiction court” is a justice court under

A.R.S. §§ 22-101 et seq., or a municipal court under A.R.S. §§ 22-401 et seq.

arrest of a person charged with a public offense and includes the Chief Justice and

justices of the Supreme Court, judges of the superior court, judges of the court of

appeals, justices of the peace, and judges of a municipal court.

(d) Parties. “Parties” means the State of Arizona and the defendants in a case. Use of the

word “party” in these rules means either, or any, party.

(e) Person. “Person” includes an entity.

(f) Presiding Judge.

(1) For the Superior Court. The superior court presiding judge is the county’s

presiding judge. In a county that has only one superior court judge, that judge is

the presiding judge. In other counties, the Chief Justice of the Supreme Court

designates the presiding judge, who may appoint other judges to carry out one or

more of the presiding judge’s duties.

(2) For a Limited Jurisdiction Court. If a court consists only of one judge, that

judge is the presiding judge. In courts having more than one judge, the presiding

judge is designated by the appropriate authority.

(g) The State. “The State” means the State of Arizona, or any other Arizona state or

local governmental entity that files a criminal charge in an Arizona court. “The State”

in the context of certain rules includes the prosecutor representing the State.

(h) Victim. “Victim” means a person as defined in A.R.S. § 13-4401.

Rule 1.5. Interactive Audiovisual Systems

(a) Generally. If the appearance of a defendant or counsel is required in any court, the

appearance may be made by using an interactive audiovisual system that complies

with the provisions of this rule. Any interactive audiovisual system must meet or

exceed minimum operational guidelines adopted by the Administrative Office of the

Courts.

(b) Requirements. If an interactive audiovisual system is used:

(1) the system must operate so the court and all parties can view and converse with

each other simultaneously;

(2) a full record of the proceedings must be made consistent with the requirements of

applicable statutes and rules; and

(3) provisions must be made to:

(A) allow for confidential communications between the defendant and defendant’s

counsel before, during, and immediately after the proceeding;

(B) allow a victim a means to view and participate in the proceedings and ensure

compliance with all victims’ rights laws;

law; and

(D) allow for use of interpreter services when necessary and, if an interpreter is

required, the interpreter must be present with the defendant absent compelling

circumstances.

(1) In the Court’s Discretion. A court may require a defendant’s appearance by use

of an interactive audiovisual system without the parties’ consent at any of the

following:

(A) an initial appearance;

(B) a misdemeanor arraignment;

(D) a hearing on a motion to continue that does not include a waiver of time under

Rule 8;

(E) a hearing on an uncontested motion;

(F) a pretrial or status conference;

(G) a change of plea in a misdemeanor case; or

(H) an informal conference held under Rule 32.7.

(2) Generally Not Permitted. A court may not require a defendant’s appearance by

use of an interactive audiovisual system at any trial, contested probation violation

hearing, felony sentencing, or felony probation disposition hearing, unless the

court finds extraordinary circumstances and the parties consent by written

stipulation or on the record.

(3) By Stipulation. For any proceeding not included in (c)(1) and (c)(2), the parties

may stipulate that the defendant may appear at the proceeding by use of an

interactive audiovisual system. The parties must file a stipulation before the

proceeding begins or state the stipulation on the record at the start of the

proceeding. Before accepting the stipulation, the court must find that the

defendant knowingly, intelligently and voluntarily agrees to appear at the

proceeding by use of an interactive audiovisual system.

(4) Change in Hearing’s Scope. If the scope of a hearing expands beyond that

specified in (c)(1) and (c)(3), the court must reschedule a videoconference and

require the defendant’s personal appearance.

Rule 1.6. Form of Documents

(a) Caption. Documents filed with the court must contain the following information as

single-spaced text, typed or printed, on the first page of the document:

(1) to the left of the center and at the top of the page:

(A) the filing attorney’s or self-represented litigant’s name, address, telephone

number, and email address; and

(B) if an attorney, the attorney’s State Bar of Arizona attorney identification

number, any State Bar of Arizona law firm identification number, and the

name of the party the attorney represents;

(2) centered on the page and immediately below the filer information, the title of the

court;

(3) below the title of the court and to the left of the center of the page, the title of the

action or proceeding;

(4) opposite the title, in the space to the right of the center of the page, the case

number of the action or proceeding; and

(5) immediately below the case number, a brief description of the document.

(b) Document Format.

(1) Generally. Unless the court orders otherwise, all filed documents, other than a

document submitted as an exhibit or attachment to a filing, must be prepared as

follows:

(A) Text and Background. The text must be black on a plain white background.

All documents filed must be single-sided.

(B) Type Size and Font. Notwithstanding any local rule, every typed document

must use at least a 13-point type size. The court prefers proportionally spaced

serif fonts. Footnotes must be in at least a 13-point type size and must not

appear in the space required for the bottom margin.

(i) Exhibits, attachments to documents, or documents from jurisdictions

outside Arizona that are larger than the specified size must be folded to the

specified size or folded and fastened to pages of the specified size.

(ii) Exhibits or attachments to documents smaller than the specified size must

be fastened to pages of the specified size.

(iii) A document that is not in compliance with these provisions may be filed

only if compliance is not reasonably practicable.

(D) Margins and Page Numbers. Page margins must be at least one inch on the

top and bottom of the page and between one inch and 1½ inches on each side.

Except for the first page, the bottom margin must include a page number.

(E) Handwritten Documents. Handwritten documents are discouraged, but if a

document is handwritten, the text must be legibly printed and not include

cursive writing or script.

(F) Line Spacing. Text must be double-spaced and may not exceed 28 lines per

page, but headings, quotations, and footnotes may be single-spaced. A singlespaced quotation must be indented on the left and right sides.

(G) Headings and Emphasis. Headings must be underlined, in italics, or in bold

type, or in any combination of the three. Underlining, italics, or bold type also

may be used for emphasis.

(H) Citations. Case names and citation signals must be in italics or underlined.

(I) Originals. Unless filing electronically, only originals may be filed. If it is

necessary to file more than one copy of a document, the additional copies may

be photocopies or computer-generated duplicates.

(J) Court Forms. Printed court forms, court-generated form, and forms generated

by a court-authorized electronic filing system or vendor may deviate from the

requirements of this rule. Such court forms must be single-sided. They may be

single-spaced, but any signature lines must be at least two lines below the last

line of text. All hard-copy court forms must be on paper of sufficient quality

and weight to assure legibility upon duplication, microfilming, or imaging.

(2) Signatures. Every document filed with the court must include the attorney of

record’s signature. If there is no attorney of record, the document must include

the signature of a self-represented person.

document may be filed electronically.

(1) Format.

(A) File Type. A document filed electronically that contains text, other than a

scanned document image that is submitted under this rule, must be in a textsearchable .pdf, .odt, or .docx format or other format permitted by

Administrative Order. A text-searchable .pdf format is preferred. A proposed

order must be in a form that permits it to be modified, such as .odt or .docx

format or other format permitted by Administrative Order, and must not be

password protected.

(B) File Size. A document exceeding the file size limits allowed by the court’s

electronic filing portal may be broken up into multiple files to accommodate

such a limit.

(2) Formats of Attachments.

(A) Generally. An exhibit and other attachment to an electronically filed

document may be filed electronically if it is attached to the same submission

as either a scanned image or an electronic copy using an approved file type

and format.

(B) Official Records. A scanned copy of an official record may be filed

electronically if it contains an official seal of authority or its equivalent.

electronically if it contains the notary’s signature and stamp or seal.

(D) Certified Mail, Return Receipt Card. When establishing proof of service by a

form of mail that requires a signed and returned receipt, the return receipt may

be filed electronically if both sides of the return receipt card are scanned and

filed.

(E) National Courier Service. When establishing proof of service by a national

courier service, the receipt for such service may be filed electronically by

scanning and filing the receipt.

(3) Bookmarks and Hyperlinks.

(A) Bookmarks. A bookmark is a linked reference to another page within the

same document. An electronically filed document may include bookmarks. A

document that is incapable of bookmarking may be made accessible by a

hyperlink. Bookmarks are encouraged.

(B) Hyperlinks. A hyperlink is an electronic link in a document to another

document or to a website. An electronically filed document may include

hyperlinks. Material that is not in the official court record does not become

part of the official record merely because it is made accessible by a hyperlink.

Hyperlinks are encouraged.

(4) Originals. An electronically filed document (or a scanned copy of a document

filed in hard copy) constitutes an “original” under Arizona Rule of Evidence

1002.

(5) Signature. All electronic filings must be signed. A person may sign an

electronic document by placing the symbol “/s/” on the signature line above the

person’s name. An electronic signature is equivalent to an ink signature on paper.

Rule 1.7. Filing and Service of Documents

(a) “Filing with the Court” Defined. The filing of a document with the court is

accomplished only by filing it with the clerk. If a judge permits, a document may be

submitted directly to a judge, who must transmit it to the clerk for filing and notify the

clerk of the date of its receipt.

(b) Effective Date of Filing.

(1) Paper Documents. A document is deemed filed on the date the clerk receives

and accepts it. If a document is submitted to a judge and is later transmitted to

the clerk for filing, the document is deemed filed on the date the judge receives

it.

(2) Electronically Filed Documents. An electronically filed document is filed on

the date and time the clerk receives it. Unless the clerk later rejects the document

based on a deficiency, the date and time shown on the email notification from the

court’s electronic filing portal or as displayed within the portal is the effective

date of filing. If a filing is rejected, the clerk must promptly provide the filing

party with an explanation for the rejection.

(3) Late Filing Because of an Interruption in Service. If a person fails to meet a

deadline for filing a document because of a failure in the document’s electronic

transmission or receipt, the person may file a motion asking the court to accept

the document as timely filed. On a showing of good cause, the court may enter

an order permitting the document to be deemed filed on the date that the person

originally attempted to transmit the document.

(4) Incarcerated Parties. If a party is incarcerated and another party contends that

the incarcerated party did not timely file a document, the court must deem the

filing date to be the date when the document was delivered to jail or prison

authorities to deposit in the mail.

document with any court must serve a copy of the document on all other parties as

follows:

(1) Serving an Attorney. If a party is represented by an attorney, service under this

rule must be made on the attorney unless the court orders service on the party.

(2) Service Generally. A document is served under this rule by any of the

following:

(A) handing it to the person;

(B) leaving it:

(i) at the person’s office with a clerk or other person in charge or, if no one is

in charge, in a conspicuous place in the office; or

(ii) if the person has no office or the office is closed, at the person’s dwelling

or usual place of abode with someone of suitable age and discretion who

resides there;

service is complete upon mailing;

(D) delivering it by any other means, including electronic means other than that

described in (c)(2)(E), if the recipient consents in writing to that method of

service or if the court orders service in that manner—in which event service is

complete upon transmission; or

(E) transmitting it through an electronic filing service provider approved by the

Administrative Office of the Courts, if the recipient is an attorney of record in

the action—in which event service is complete upon transmission.

(3) Certificate of Service. The date and manner of service must be noted on the last

page of the original of the served document or in a separate certificate, in a form

substantially as follows:

A copy has been or will be mailed/emailed/hand-delivered [select one]

on [insert date] to:

[Name of opposing party or attorney]

[Address of opposing party or attorney]

If the precise manner in which service has actually been made is not noted, it

will be presumed that the document was served by mail. This presumption will

only apply if service in some form has actually been made.

Rule 1.8. Clerk’s Distribution of Minute Entries and Other Documents

(a) Generally. The clerk must distribute, either by U.S. mail, electronic mail, or attorney

drop box, copies of every minute entry to all parties.

(b) Electronic Distribution. The clerk may distribute minute entries, notices and other

court-generated documents to a party or a party’s attorney by electronic means.

Electronic distribution of a document is complete when the clerk transmits it to the

email address that the party or attorney has provided to the clerk.

Rule 1.9. Motions, Oral Argument, and Proposed Orders

(a) Content. A motion must include a memorandum that states facts, arguments, and

authorities pertinent to the motion.

(b) Service of Motion; Response; Reply. The moving party must serve the motion on

all other parties. No later than 10 days after service, another party may file and serve a

response, and, no later than 3 days after service of a response, the moving party may

file and serve a reply. A reply must be directed only to matters raised in a response. If

no response is filed, the court may deem the motion submitted on the record.

supporting memorandum, may not exceed 11 pages, exclusive of attachments, and a

reply may not exceed 6 pages, exclusive of attachments.

(d) Waiver of Requirements. On a party’s request or on its own, the court may waive a

requirement specified in this rule, or it may overlook a formal defect in a motion.

(e) Oral Argument. On a party’s request or on its own, the court may set a motion for

argument or hearing.

(f) Proposed Orders. A proposed order must be prepared as a separate document and

may not be included as part of a motion, stipulation, or other document. There must

be at least two lines of text on the signature page of a proposed order. A party must

serve the proposed order on the court and all other parties. A party must not file a

proposed order, and the court will not docket it, until a judge has reviewed and signed

it. Absent a notice of filing, proposed orders will not be part of the record.

II. Preliminary Proceedings

Rule 2. Commencement of Criminal Proceedings

Rule 2.1. Misdemeanors

(a) Limited Jurisdiction Courts. The State may commence misdemeanor and petty

offense actions triable in limited jurisdiction courts by filing with the court:

(1) an Arizona Traffic Ticket and Complaint;

(2) any complaint form approved by the Arizona Supreme Court; or

(3) a complaint under Rule 2.3.

(b) Superior Court. The State may commence a misdemeanor action by filing an

indictment or information directly in the superior court. A prosecutor also may

commence a misdemeanor action not otherwise triable in the superior court by filing a

complaint in the Justice Court under Rule 2.2(b) and then following the procedures

applicable in felony cases.

Rule 2.2. Felonies

The State may commence a felony action by the following:

(a) the return of an indictment under Rule 12 which may, but need not, be preceded by a

complaint; or

(b) filing a complaint in a limited jurisdiction court, or in superior court with permission

of a judge of such court.

Rule 2.3. Content of Complaint

(a) Complaint, Generally. A complaint is a written statement of the essential facts

constituting a public offense. A complaint must be:

(1) signed by a prosecutor;

(2) sworn before a magistrate; or

(3) made in compliance with A.R.S. § 13-3903.

(b) Electronic Oath or Signature. The constitutional requirement that a complaint

must be under oath is satisfied by an electronic oath or by an affidavit containing an

electronic signature of a peace officer or a law enforcement agency representative

under penalty of perjury.

with any offense listed in A.R.S. §§ 13-1401 et seq., 13-3101 et seq., 13-3501 et seq.,

or 13-3551 et seq., or an offense in which the victim was a juvenile at the time of the

offense, the prosecuting agency must advise the clerk at the time of filing the charge

that the case is subject to Supreme Court Rule 123(g)(1)(D)(ii)(h).

Rule 2.4. Duty of Magistrate upon Presentation of Complaint

(a) Complaint Under Oath. If a complaint is presented under Rule 2.3(a)(2), the

magistrate must determine whether there is probable cause to believe an offense has

been committed and whether the defendant committed it. If the magistrate finds

probable cause, the magistrate must proceed under Rule 3.1. If the magistrate does not

find probable cause, the magistrate must dismiss the complaint.

(b) Complaint Signed by a Prosecutor. If a complaint is signed by a prosecutor, the

magistrate must proceed under Rule 3.1.

Rule 2.5. Refusal to Provide a DNA Sample

If an arresting authority or custodial agency files a petition under penalty of perjury

stating that a person in custody for an offense listed in A.R.S. § 13-610(O)(3) refused to

provide buccal cells or other bodily substances for DNA testing, the court must order that

the person appear at a designated time and place and permit the taking of buccal cells or

other bodily substances for DNA testing. The arresting authority or custodial agency

must serve the person with a copy of the court order before or at the time of taking the

sample.

Rule 3. Arrest Warrant or Summons upon Commencement of Criminal

Proceedings

Rule 3.1. Issuance of Summons or Warrant

(a) Issuance. A summons commands a defendant to appear before a magistrate. A

warrant commands the arrest of a defendant by a peace officer for the purpose of

bringing a defendant before a magistrate.

(1) Return of Indictment. If a grand jury returns an indictment, the court must

promptly issue a warrant or summons, or a notice of supervening indictment

under Rule 12.7(c).

(2) Finding of Probable Cause. If a magistrate makes a finding of probable cause

under Rule 2.4(a), the court must promptly issue a warrant or summons.

(3) Prosecutor’s Complaint. If a prosecutor presents a signed complaint, the court

must promptly issue a summons or, if the court finds probable cause, the court

may issue a warrant.

(b) Preference for Summons. Unless there is good cause to issue a warrant, a court

should issue a summons if the defendant is not in custody, the offense charged is

bailable as a matter of right, and there is reason to believe that the defendant will

appear. If a prosecutor requests a warrant, the prosecutor must state the reasons for

issuing a warrant rather than a summons.

probable cause exists that the defendant committed the offense or find that such a

determination was previously made. The court may issue an initial arrest warrant if:

(1) a defendant failed to appear after being served with a summons;

(2) there is good cause to believe that the defendant will not appear; or

(3) a summons cannot readily be served or delivered.

(d) Pre-Disposition Warrant. After the initial appearance and before the disposition of

a case, the court may issue a warrant to secure a defendant’s appearance if the

defendant fails to appear after receiving proper notice.

(e) Warrants in Criminal ATTC Cases. If a person served with an Arizona Traffic

Ticket and Complaint provides a written promise to appear in court at a designated

time and date and fails to appear, personally or by counsel, on or before that date, the

court may issue a warrant. If a complaint is filed under A.R.S. § 13-3903(F), the court

must issue a warrant for that proceeding.

Rule 3.2. Content of a Warrant or Summons

(a) Warrant. A warrant must:

(1) be signed by the issuing magistrate;

(2) contain the defendant’s name or, if the defendant’s name is unknown, any name

or description by which the defendant can be identified with reasonable certainty;

(3) state the charged offense and whether the offense is one to which victims’ rights

provisions apply;

(4) command that the defendant be arrested and brought before the issuing

magistrate or, if the issuing magistrate is absent or unable to act, the nearest or

most accessible magistrate in the same county or in the county of arrest if the

defendant is arrested outside the county where the warrant was issued; and

(5) state the amount of an appearance bond, if the defendant is bailable as a matter of

right.

(b) Summons.

(1) Form. A summons must be in the same form as a warrant except it must

summon the defendant to appear at a date, time and place no more than 30 days

after an indictment, information, or complaint is filed.

(2) Photograph and Fingerprints. At the prosecutor’s request or by court order, the

summons may command the defendant to report to a designated place to be

photographed and fingerprinted before the defendant’s appearance in response to

the summons. If the defendant fails to report to be photographed and

fingerprinted as directed, the defendant may be arrested when the defendant

appears in response to the summons and the magistrate must order the defendant

to report immediately for photographing and fingerprinting.

(3) 10-Print Fingerprints Required. If a summons is issued for a defendant who is

charged with a felony offense, a violation of A.R.S. §§ 13-1401 et seq., a

violation of A.R.S. §§ 28-1301 et seq., or a domestic violence offense as defined

in A.R.S. § 13-3601, the summons must direct the defendant to provide 10-print

fingerprints to the applicable law enforcement agency.

Rule 3.3. Execution and Return of Warrant; Defective Warrants

(a) By Whom. The warrant is directed to, and may be executed by, all peace officers in

Arizona.

(b) Manner of Execution. A warrant is executed by arresting the defendant named in

the warrant. The officer does not need to possess the warrant when the arrest is made,

but the officer must show the warrant to the defendant as soon as possible if the

defendant asks to see it. If the officer does not have the warrant when the arrest is

made, the officer must inform the defendant of the charged offense and the fact that a

warrant has been issued.

magistrate at the initial appearance.

(d) Defective Form. A defect in form does not invalidate the warrant or require the

release of a person in custody. A magistrate may amend a warrant to correct a defect

in form.

Rule 3.4. Service of Summons

(a) Territorial Limits of Effective Service. A summons may be served anywhere

within Arizona.

(b) Service by Mail. A summons may be served by first-class mail or by certified mail,

return receipt requested. Return of the signed receipt is presumptive evidence of

service.

by:

(1) delivering the summons to that individual personally;

(2) leaving the summons at that individual’s dwelling or usual place of abode with

someone of suitable age and discretion who resides there; or

(3) delivering the summons to an agent authorized by appointment or by law to

receive service of process.

(d) Serving a Minor. Unless (e) applies, a minor less than 16 years old may be served

by delivering the summons to the minor in the manner set forth in (c) and also

delivering the summons:

(1) to the minor’s parent or guardian, if any of them reside or may be found within

Arizona; or

(2) if none of them resides or is found within Arizona, to any adult having the care

and control of the minor, or any person of suitable age and discretion with whom

the minor resides.

(e) Serving a Minor Who Has a Guardian. If a court has appointed a guardian for a

minor, the minor must be served by serving the guardian in the manner set forth in (c),

and separately serving the minor in that same manner.

(f) Serving a Person Adjudicated Incompetent Who Has a Guardian. If a court has

declared a person to be insane, gravely disabled, incapacitated, or mentally

incompetent to manage that person’s property, and has appointed a guardian for the

person, the person must be served by serving the guardian in the manner set forth in

(c), and separately serving the person in that same manner.

(g) Serving a Corporation, Partnership, or Other Unincorporated Association. A

domestic or foreign corporation, partnership, or other unincorporated association may

be served by delivering the summons to a partner, an officer, a managing or general

agent, or any other agent authorized by appointment or by law to receive service of

process and—if the agent is one authorized by statute and the statute so requires—by

also mailing the summons to the defendant.

(h) Serving a Corporation if an Authorized Officer or Agent Is Not Found Within

Arizona.

(1) Generally. If a domestic corporation, or a foreign corporation authorized to

transact business in Arizona, does not have an officer or an agent within Arizona

on whom process can be served, the corporation may be served by depositing

two copies of the summons with the Arizona Corporation Commission.

Following this procedure constitutes personal service on that corporation.

(2) Evidence. If the sheriff of the county in which the action is pending states in the

return that, after diligent search or inquiry, the sheriff has been unable to find an

officer or agent of such corporation on whom process may be served, the

statement constitutes prima facie evidence that the corporation does not have

such an officer or agent in Arizona.

(3) Commission’s Responsibilities. The Arizona Corporation Commission must

retain one of the copies of the summons being served for its records and

immediately mail the other copy, postage prepaid, to the corporation or any of

the corporation’s officers or directors, using any address obtained from the

corporation’s articles of incorporation, other Corporation Commission records, or

any other source.

Rule 4. Initial Appearance

Rule 4.1. Procedure upon Arrest

(a) Prompt Initial Appearance. An arrested person must be promptly taken before a

magistrate. At the initial appearance, the magistrate will advise the arrested person of

those matters set forth in Rule 4.2. If the initial appearance does not occur within 24

hours after arrest, the arrested person must be immediately released from custody.

(b) On Arrest Without a Warrant. A person arrested without a warrant must be taken

before the nearest or most accessible magistrate in the county of arrest. A complaint,

if not already filed, must be promptly prepared and filed. If a complaint is not filed

within 48 hours after the initial appearance before the magistrate, the arrested person

must be immediately released from custody and any pending preliminary hearing

dates must be vacated.

(1) Arrest in the County of Issuance. A person arrested in the county where the

warrant was issued must be taken before the magistrate who issued the warrant

for an initial appearance. If the magistrate is absent or unable to act, the arrested

person must be taken to the nearest or most accessible magistrate in the same

county.

(2) Arrest in Another County. If a person is arrested in a county other than the one

where the warrant was issued, the person must be taken before the nearest or

most accessible magistrate in the county of arrest. If eligible for release as a

matter of right, the person must then be released under Rule 7.2. If not released

immediately, the arrested person must be taken to the issuing magistrate in the

county where the warrant originated, or, if that magistrate is absent or unable to

act, before the nearest or most accessible magistrate in the county where the

warrant originated.

(d) Assurance of Availability of Magistrate and the Setting of a Time for Initial

Appearance. Each presiding judge must make a magistrate available every day of

the week to hold the initial appearances required under Rule 4.1(a). The presiding

judge also must set at least one fixed time each day for conducting initial appearances,

and notify local law enforcement agencies of the fixed time(s).

(e) Sample for DNA Testing; Proof of Compliance. If the arresting authority is

required to secure a sample of buccal cells or other bodily substances for DNA testing

under A.R.S. § 13-610(K), it must provide proof of compliance to the court before the

initial appearance.

Rule 4.2. Initial Appearance

(a) Generally. At an initial appearance, the magistrate must:

(1) determine the defendant’s true name and address and, if necessary, amend the

formal charges to correct the name and instruct the person to promptly notify the

court of any change of address;

(2) inform the defendant of the charges and, if available, provide the person with a

copy of the complaint, information, or indictment;

(3) inform the defendant of the right to counsel and the right to remain silent;

(4) determine whether there is probable cause for purposes of release from custody,

and, if no probable cause is found, immediately release the person from custody;

(5) appoint counsel if the defendant requests and is eligible for appointed counsel

under Rule 6;

(6) permit and consider any victim’s oral or written comments concerning the

defendant’s possible release and conditions of release;

(7) determine the conditions of release under Rule 7.2, including whether the

defendant is non-bailable under article 2, section 22 of the Arizona Constitution

and A.R.S. § 13-3961;

(8) order a summoned defendant to be 10-print fingerprinted no later than 20

calendar days by the appropriate law enforcement agency at a designated time

and place if:

(A) the defendant is charged with a felony offense, a violation of A.R.S. §§ 131401 et seq. or A.R.S. §§ 28-1301 et seq., or a domestic violence offense as

defined in A.R.S. § 13-3601; and

(B) the defendant does not present a completed mandatory fingerprint compliance

form to the court, or if the court has not received the process control number;

and

(9) order the arresting agency to secure a sample of buccal cells or other bodily

substances for DNA testing if:

(A) the defendant is in-custody and was arrested for an offense listed in

A.R.S. § 13-610(O)(3); and

(B) the court has not received proof of compliance with A.R.S. § 13-610(K).

(b) Felonies Charged by Complaint. If a defendant is charged in a complaint with a

felony, in addition to following the procedures in (a), the magistrate must:

(1) inform the defendant of the right to a preliminary hearing and the procedures by

which that right may be waived; and

(2) unless waived, set the time for a preliminary hearing under Rule 5.1.

charged with a misdemeanor or indicted for a felony and defense counsel is present or

the defendant waives the presence of counsel, the magistrate may arraign a defendant

under Rule 14 during an initial appearance under (a). If, however, the magistrate lacks

jurisdiction to try the offense, the magistrate may not arraign the defendant and must

instead transfer the case to the proper court for arraignment. If the court finds that

delaying the defendant’s arraignment is indispensable to the interests of justice, the

court when setting a date for the continued arraignment must provide sufficient notice

to victims under Rule 39(b)(2).

Rule 4.3. Initial Appearance Masters

(a) Appointment. A county’s presiding judge may appoint one or more masters to

conduct initial appearances under Rule 4. Masters under this rule have a one-year

term and may be reappointed for additional terms.

(b) Compensation. The presiding judge will set masters’ compensation, which will be

paid from any available funding source the presiding judge identifies.

individual has sufficient education and work experience to conduct initial appearances

as a master under this rule. Masters do not need to be members of the State Bar of

Arizona. Before assignment, a master must successfully complete relevant training

regarding the law, procedures, and judicial conduct. Masters must receive annual

training concerning changes in relevant statutes, rules, and case law.

(d) Authority and Assignment. The master’s authority is limited to conducting initial

appearances. Presiding judges may assign masters only if no justice of the peace,

magistrate, or judge pro tempore is reasonably available to conduct initial

appearances.

Rule 5. Preliminary Hearing

Rule 5.1. Right to a Preliminary Hearing; Waiver; Continuance

(a) Right to a Preliminary Hearing. A defendant has a right to a preliminary hearing if

charged in a complaint with a felony. A preliminary hearing must commence before a

magistrate no later than 10 days after the defendant’s initial appearance if the

defendant is in custody, or no later than 20 days after the defendant’s initial

appearance if the defendant is not in custody, unless:

(1) the complaint is dismissed;

(2) the hearing is waived;

(3) the defendant has been transferred from the juvenile court for criminal

prosecution on specified charges; or

(4) the magistrate orders the hearing continued under (c).

(b) Waiver. The parties may waive a preliminary hearing but the waiver must be in

writing and the defendant, defense counsel, and the State must sign it.

(1) Release Absent Continuance. If a preliminary hearing for an in-custody

defendant did not commence within 10 days as required under (a) and was not

continued, the defendant must be released from custody, unless the defendant is

charged with a non-bailable offense, in which case the magistrate must

immediately notify that county’s presiding judge of the reasons for the delay.

(2) Continuance. On motion or on its own, a magistrate may continue a preliminary

hearing beyond the 20-day deadline specified in (a). A magistrate may continue

the hearing only if it finds that extraordinary circumstances exist and that delay is

indispensable to the interests of justice. The magistrate also must file a written

order detailing the reasons for these findings. The court must promptly notify the

parties of the order.

(3) Resetting Hearing Date. If the magistrate orders a continuance, the order must

reset the preliminary hearing for a specific date to avoid uncertainty and

additional delay.

(d) Hearing Demand. A defendant who is in custody may demand that the court hold a

preliminary hearing as soon as practicable. In that event, the magistrate must set a

hearing date and must not delay its commencement more than necessary to secure the

attendance of counsel, a court reporter, and necessary witnesses.

Rule 5.2. Summoning Witnesses; Record of Proceedings

(a) Summoning Witnesses. If requested, the magistrate must issue subpoenas to secure

the attendance of witnesses.

(b) Record of Proceedings. The magistrate must make a verbatim record of the

preliminary hearing. Proceedings may be recorded by a certified court reporter or by

electronic or other means authorized by the superior court presiding judge. But if a

party requests that a certified court reporter record the proceedings, the court must

record the proceedings in that manner, unless the court is located in an area where a

certified court reporter is not reasonably available.

Rule 5.3. Nature of the Preliminary Hearing

(a) Procedure.

(1) Permitted Evidence. During a preliminary hearing, a magistrate may admit

evidence only if it is material to whether there is probable cause to hold the

defendant for trial.

(2) Cross-Examination; Witness Statements. All parties have the right to crossexamine a witness who testifies in person at the hearing, and to review any of the

witness’s previous written statements before conducting cross-examination.

(3) Probable Cause Ruling. At the close of the State’s case, the magistrate must

determine and state for the record whether the State’s case establishes probable

cause.

(4) Offer of Proof. If the magistrate rules that there is probable cause, the defendant

may make a specific offer of proof to the contrary, including the identities of

witnesses who would testify or produce the offered evidence. The magistrate

must allow the defendant to present the offered evidence, unless the magistrate

determines that, even if true, the evidence would be insufficient to rebut the

probable cause finding.

(b) Unlawfully Obtained Evidence. A court must not exclude evidence during a

preliminary hearing solely on the ground that it was obtained unlawfully.

Rule 5.4. Determining Probable Cause

(a) Holding a Defendant to Answer. If a magistrate finds that there is probable cause to

believe that an offense has been committed and that the defendant committed it, the

magistrate must file a written order holding the defendant to answer for the offense

before the superior court. Upon request, the magistrate may reconsider the conditions

of release.

(b) Amending the Complaint. A magistrate may grant a motion to amend a complaint

so that its factual allegations conform to the evidence, but the magistrate must not

hold the defendant to answer for crimes different than those charged in the original

complaint.

which may include hearsay in the following forms:

(1) a written report of an expert witness;

(2) documentary evidence, even without foundation, if there is a substantial basis for

believing that foundation will be available at trial and the document is otherwise

admissible; or

(3) a witness’s testimony about another person’s declarations if such evidence is

cumulative or if there are reasonable grounds to believe that the declarant will be

personally available for trial.

(d) Lack of Probable Cause. The magistrate must dismiss the complaint and discharge

the defendant if a magistrate finds that there is not probable cause to believe that an

offense has been committed or that the defendant committed it.

Rule 5.5. Review of a Magistrate’s Probable Cause Determination

(a) Grounds. The superior court may review a magistrate’s determination to bind over a

defendant only if the defendant files a motion for a new probable cause finding. The

court may grant the motion only if the defendant was denied a substantial procedural

right or the magistrate’s probable cause finding was not supported by credible

evidence. If the motion challenges the sufficiency of the evidence supporting the

probable cause finding, it must state specifically the ways in which credible evidence

was lacking.

(b) Timeliness. A motion under this rule must be filed no later than 25 days after the

preliminary hearing is completed.

transcript and exhibits admitted at the preliminary hearing.

(d) Relief. If the court grants a motion for a new probable cause finding, the court must

remand the action to the magistrate with appropriate instructions. Unless a new

preliminary hearing is commenced within 15 days after the remand order is filed, the

case must be dismissed.

Rule 5.6. Transmittal and Transcription of the Record

(a) Transmittal. The magistrate must transmit to the superior court clerk the record of

any preliminary hearing no later than 3 days after the hearing is waived or completed.

The transmittal must be accompanied by a transmittal certification form and include

any documents or exhibits submitted at the hearing.

(b) Transcript Preparation and Filing. If a party makes a written request and avows

that there is a material need for a transcript, the court must order a certified court

reporter or an authorized transcriber of an electronic recording to prepare a transcript.

The court reporter or transcriber must file the transcript in the superior court no later

than 20 days after the order’s filing.

Rule 5.7. Preservation of Recording

The clerk must retain and preserve any electronic recording of a preliminary hearing in

the same manner as required for the original notes of a certified court reporter under Rule

28.1(c).

Rule 5.8. Notice if an Arraignment Is Not Held

(a) Notice. If a defendant is held to answer in a county where an arraignment is not held

as provided in Rule 14.1(d), the magistrate must:

(1) enter a plea of not guilty for the defendant and provide the defendant and defense

counsel with a notice specifying that a plea of not guilty has been entered;

(2) set dates for a trial or pretrial conference;

(3) advise the parties in writing of the dates set for further proceedings and other

important deadlines;

(4) advise the defendant of the defendant’s right to be present at all future

proceedings, that any proceeding may be held in the defendant’s absence, and

that if the defendant fails to appear, the defendant may be charged with an

offense and a warrant may be issued for the defendant’s arrest; and

(5) advise the defendant of the right to a jury trial, if applicable.

(b) Notice Form. The magistrate must provide written notice to the defendant of the

matters in (a). The defendant and defense counsel must sign the notice and return it to

the court.

III. Rights of Parties

Rule 6. Right to Counsel; Duties of Counsel; Court-Appointed Attorneys,

Investigators, and Experts

Rule 6.1. Right to Counsel; Right to a Court-Appointed Attorney; Waiver of the

Right to Counsel

(a) Right to Be Represented by Counsel. A defendant has the right to be represented by

counsel in any criminal proceeding. The right to be represented by counsel includes

the right to consult privately with counsel, or the counsel’s agent, as soon as feasible

after a defendant has been taken into custody, at reasonable times after being taken

into custody, and sufficiently in advance of a proceeding to allow counsel to

adequately prepare for the proceeding.

(b) Right to a Court-Appointed Attorney.

(1) As of Right. An indigent defendant is entitled to a court-appointed attorney:

(A) in any criminal proceeding that may result in punishment involving a loss of

liberty; or

(B) for the limited purpose of determining release conditions at or following the

initial appearance, if the defendant is detained after a misdemeanor charge is

filed.

(2) Discretionary. In any other criminal proceeding, the court may appoint an

attorney for an indigent defendant if required by the interests of justice.

(3) Definition of “Indigent.” For the purposes of this rule, “indigent” means a

person who is not financially able to retain counsel.

waiver is in writing and if the court finds that the defendant’s waiver is knowing,

intelligent, and voluntary. After a defendant waives the right to counsel, the court may

appoint advisory counsel for the defendant at any stage of the proceedings. In all

further matters, the court must give advisory counsel the same notice that is given to

the defendant.

(d) Unreasonable Delay in Retaining Counsel. If a defendant appears at a proceeding

without counsel, the court may proceed if:

(1) the defendant is indigent and has refused appointed counsel; or

(2) the defendant is not indigent and has had a reasonable opportunity to obtain

counsel.

(e) Withdrawal of Waiver. A defendant may withdraw a waiver of the right to counsel

at any time. But the fact that counsel is later appointed or retained does not alone

establish a basis for repeating any proceeding previously held or waived.

Rule 6.2. Appointment of Counsel for Indigent Defendants

(a) Procedure. The presiding judge of each county must establish a procedure for the

superior court and limited jurisdiction courts to appoint counsel for indigent

defendants.

(b) Capital Trial Proceedings. In all capital trial proceedings where the defendant is

indigent, the presiding judge must appoint two attorneys—lead counsel and cocounsel—under Rule 6.8(b). The appointed lead counsel may designate co-counsel if

co-counsel is willing to accept the appointment and meets the requirements of Rule

6.8. If lead counsel does not promptly designate co-counsel, the court must do so.

Rule 6.3. Duties of Counsel; Withdrawal

(a) Notice of Appearance.

(1) Generally. Before representing the defendant in court, counsel—whether

privately retained or appointed by the court—must file a notice of appearance.

(2) Earlier Appearance in a Limited Jurisdiction Court. Counsel who has filed a

notice of appearance in a felony case in a limited jurisdiction court does not need

to file a new notice of appearance if the defendant is bound over to superior

court.

(b) Duty of Continuing Representation. Unless the court permits counsel to withdraw,

counsel who represents a defendant at any stage of a case has a continuing duty to

represent the defendant in all further proceedings in the trial court, including the filing

of a notice of appeal.

(1) If the Defendant Is Ineligible for Appointed Counsel. Appointed counsel may

not withdraw after arraignment on the ground that the defendant is ineligible for

appointed counsel unless counsel shows that withdrawal will not disrupt the

orderly processing of the case.

(2) If the Case Is Set for Trial. After a case is set for trial, the court may not permit

counsel to withdraw unless counsel files a motion that provides:

(A) the name and address of new counsel and a signed statement from the new

counsel that acknowledges the trial date and avows that the new counsel will

be prepared for trial; or

(B) ethical grounds for withdrawing.

(d) Duty of Defense Counsel to Preserve the File. Defense counsel must:

(1) maintain records of the case in a manner that will inform successor counsel of all

significant developments relevant to the case; and

(2) make available to successor counsel the client’s complete records and files, as

well as all information regarding every aspect of the representation.

(e) Duty of Successor Counsel to Collect the File in a Capital Case. Immediately

upon undertaking representation of a defendant in a capital case in which the

defendant was previously represented by counsel, defense counsel must collect the

complete file from prior counsel and maintain the records and files in a manner that

complies with (d).

Rule 6.4. Determining Whether a Person Is Indigent

(a) Questionnaire. To show indigency, a defendant must complete under oath a

financial resources form approved by the Supreme Court. A judicial officer

responsible for determining whether a defendant is indigent may question the

defendant under oath regarding the defendant’s financial resources. Before

questioning, the court must advise the defendant of the penalties for perjury set forth

in A.R.S. §§ 13-2701 et seq.

(b) Redetermination of Indigency. If there is a material change in circumstances, the

defendant, defense counsel, or the State may request that the court make a new

indigency determination.

(1) Generally. If a court finds that a defendant can afford to pay part of the cost of

appointed counsel without incurring substantial hardship, the court may order the

defendant to pay that amount to the clerk.

(2) Failure to Pay. A defendant’s failure to pay an amount ordered by the court is

not a basis for finding the defendant in contempt, and appointed counsel may not

withdraw solely on this ground. But the county or municipality may enforce an

order under (c)(1) as a civil judgment.

(3) Court Order Required. Without court approval, an attorney, organization, or

agency may not request or accept payment from the defendant for providing legal

services under the court appointment.

Rule 6.5. Manner of Appointment

(a) Appointment Order. The court must appoint counsel by a written order and provide

a copy of the order to the defendant, the appointed attorney, and the State.

(b) Public Defender Appointment. In counties that have a public defender, the court

must appoint the public defender to represent persons entitled to appointed counsel

whenever the public defender is authorized by law to undertake the representation and

is able to do so.

appoint a private attorney. In appointing private counsel, the court must take into

account the skill likely to be required in handling the case.

(d) Requests for Representation Before a Grand Jury. A request for appointment of

counsel must be made and processed as if proceedings had already begun in superior

court.

Rule 6.6. Compensation of Appointed Counsel

(a) Where to File a Compensation Claim. A private attorney appointed to represent an

indigent defendant must file a claim for compensation as provided by local rule in the

county in which the appointment was made or from which the appeal was taken.

(b) When to File a Compensation Claim.

(1) Trial Court. Trial counsel may file claims for compensation at intervals

permitted by the court, and must file a final claim at the completion of all trial,

sentencing, or post-conviction proceedings.

(2) Appellate Court. Appellate counsel may file claims for compensation at

intervals permitted by the court, and must file a final claim at the completion of

all appellate proceedings.

compensation for services rendered in a limited jurisdiction court.

(d) Amount of Compensation. An attorney must be reasonably compensated for the

services performed, considering the hours worked, the experience of counsel, the

seriousness and complexity of the case, the quality of the work performed, and any

other relevant factors. The manner of determining reasonable compensation is

provided by local rule and A.R.S. § 13-4013.

Rule 6.7. Appointment of Investigators and Expert Witnesses for Indigent

Defendants

(a) Appointment. On application, if the court finds that such assistance is reasonably

necessary to adequately present a defense at trial or at sentencing, the court may

appoint an investigator, expert witnesses, and/or, in a felony matter, a mitigation

specialist for an indigent defendant at county or city expense.

(b) Ex Parte Proceeding. A defendant may not make an ex parte request under this rule

without showing a need for confidentiality. The court must make a verbatim record of

any ex parte proceeding, communication, or request, which must be available for

appellate review.

specialist” is a person qualified by knowledge, skill, experience, or other training as a

mental health or sociology professional to investigate, evaluate, and present psychosocial and other mitigation evidence.

(d) Capital Case. In a capital case, a defendant should make any motion for an expert or

mitigation specialist no later than 60 days after the State makes its disclosure

under Rule 15.1(i)(3).

Rule 6.8. Standards for Appointment and Performance of Counsel in Capital Cases

(a) Generally. To be eligible for appointment in a capital case, an attorney must:

(1) have been a member in good standing of the State Bar of Arizona for at least 5

years immediately before the appointment;

(2) have practiced criminal litigation in Arizona state courts for 3 years immediately

before the appointment;

(3) have demonstrated the necessary proficiency and commitment that exemplifies

the quality of representation appropriate to capital cases;

(4) have successfully completed, within one year before the initial appointment, at

least 6 hours of relevant training or educational programs in the area of capital

defense; and successfully completed within one year before any later

appointment, at least 12 hours of relevant training or educational programs in the

area of criminal defense;

(5) be familiar with and guided by the performance standards in the 2003 American

Bar Association Guidelines for the Appointment and Performance of Defense

Counsel in Death Penalty Cases, and the 2008 Supplementary Guidelines for the

Mitigation Function of Defense Teams in Death Penalty Cases.

If an attorney is a member in good standing of the State Bar of Arizona, the attorney’s

practice in a federal jurisdiction or in another state may be considered for purposes of

satisfying the requirements of (a)(1) and (a)(2).

(b) Trial Counsel.

(1) Lead Counsel. To be eligible for appointment as lead trial counsel, an attorney

must meet the requirements of (a) and must have:

(A) practiced criminal litigation in Arizona state courts for 5 years immediately

before the appointment; and

(B) been lead counsel in at least 9 felony jury trials that were tried to completion,

and have been lead counsel or co-counsel in at least one capital jury trial.

(2) Co-Counsel. To be eligible for appointment as co-counsel, an attorney must be a

member in good standing of the State Bar of Arizona and meet the requirements

of (a)(4) and (a)(5).

must meet the qualifications set forth in (a) and the attorney must:

(1) within 3 years immediately before the appointment, have been lead counsel in an

appeal in a case in which a death sentence was imposed (including petitions for

review of post-conviction proceedings); and prior experience as lead counsel in

the appeal of at least 3 felony convictions; or

(2) prior experience as lead counsel in merits briefing in the appeal of at least 6

felony convictions, including two appeals from first- or second-degree murder

convictions.

(d) Post-Conviction Counsel. To be eligible for appointment as post-conviction counsel,

an attorney must meet the qualifications set forth in (a) and the attorney must:

(1) within 3 years immediately before the appointment, have been lead counsel in a

trial in which a death sentence was sought or in an appeal or post-conviction

proceeding in a case in which a death sentence was imposed, and prior

experience as lead counsel in the appeal of at least 3 felony convictions and a

trial or post-conviction proceeding with an evidentiary hearing; or

(2) have been lead counsel in the appeal of at least 6 felony convictions, including

two appeals from first- or second-degree murder convictions, and lead counsel in

at least two felony trials or post-conviction proceedings with evidentiary

hearings.

(e) Exceptions. In exceptional circumstances, a court may appoint an attorney who does

not meet the qualifications set forth in this rule if:

(1) the Supreme Court consents;

(2) the attorney meets the requirements set forth in (a)(3)-(5);

(3) the attorney’s experience, stature, and record establishes that the attorney’s

ability significantly exceeds the standards set forth in this rule; and

(4) the attorney associates with a lawyer who meets the qualifications set forth in

this rule and the associating attorney is appointed by the court for this purpose.

COMMENT

Rule 6.8(a). The American Bar Association Guidelines for the Appointment and

Performance of Defense Counsel in Death Penalty Cases (2003) and the 2008

Supplementary Guidelines for the Mitigation Function of Defense Teams in Death

Penalty Cases constitute a compendium of effective capital defense representation

practices. Counsel should be guided by those practices in exercising independent

professional judgment. The guidelines do not, however, impose independent

requirements on courts. If, for example, the guidelines recommend resources or services

from a court, counsel must show a need for that resource or service based on the facts of

the particular case. A deviation from the guidelines is not per se ineffective assistance of

counsel. The standard for evaluating counsel’s performance continues to be that set forth

in Strickland v. Washington, 466 U.S. 668 (1984).

Rule 7. Release

Rule 7.1. Definitions

(a) Own Recognizance. “Own recognizance” is a release of a defendant without

requiring the posting of a bond as a condition of release.

(b) Unsecured Appearance Bond. An “unsecured appearance bond” is an undertaking,

on a form approved by the Supreme Court, to pay the clerk a specified sum of money

upon the defendant’s failure to comply with the conditions of the bond.

deposited by the defendant or someone acting on the defendant’s behalf.

(d) Deposit Bond. A “deposit bond” is a partially-secured appearance bond in which the

defendant, or someone acting on the defendant’s behalf other than a professional

bondsman, deposits a percentage of the full bond amount in cash.

(e) Secured Appearance Bond. A “secured appearance bond” is an appearance bond

secured by deposit with the clerk of security equal to the full amount of the bond.

(f) Security. “Security” is cash, a surety’s undertaking, or any property of value,

deposited with the clerk to secure an appearance bond. The value of that property is

determined by the clerk or, at the clerk’s or a party’s request, by the court.

(g) Surety. A “surety” is a person or company, other than the defendant, who executes

an appearance bond and agrees to pay the amount of the bond if the defendant fails to

comply with its conditions. A surety must file an affidavit with an appearance bond

stating that the surety is not an attorney or person authorized to take bail, and that the

surety owns property in Arizona (or is an Arizona resident owning property) with a

value equal to or more than the amount of the appearance bond. The property’s value

is calculated after deducting the amount exempt from execution and all liabilities,

including the amount of any other outstanding appearance bonds that the surety has

entered into involving the same property.

(h) Professional Bondsman. Any person who is a surety simultaneously on more than 4

appearance bonds is a “professional bondsman.” A person may not be a professional

bondsman unless the person annually certifies in writing under oath to the superior

court clerk that the person:

(1) is an Arizona resident;

(2) is licensed with the Arizona Department of Insurance under A.R.S. § 20-340.01;

(3) has sufficient financial net worth to satisfy reasonable obligations as a surety;

(4) agrees to assume an affirmative duty to the court to remain in regular contact

with any defendant released under an appearance bond on which the person is a

surety;

(5) has not been convicted of a felony, except as otherwise provided in A.R.S. § 20340.03;

(6) has no outstanding judgments arising out of surety undertakings; and

(7) has not, within a period of two years, violated any provisions of these rules or

any court order.

The clerk or the court may revoke or withhold a professional bondsman’s capacity to

act as surety if the bondsman violates this rule’s provisions.

Rule 7.2. Right to Release

(a) Before Conviction; Bailable Offenses.

(1) Presumption of Innocence. A defendant charged with a crime but not yet

convicted is presumed to be innocent.

(2) Right to Release. Except as these rules otherwise provide, any defendant

charged with an offense bailable as a matter of right must be released pending

and during trial on the defendant’s own recognizance with only the mandatory

conditions of release required under Rule 7.3(a). This rule does not apply if the

court determines that such a release will not reasonably assure the defendant’s

appearance or protect the victim, any other person, or the community from risk

of harm by the defendant. If the court makes such a determination, it must

impose the least onerous conditions of release set forth in Rule 7.3(d).

(3) Determining Method of Release or Bail Amount. In determining the method of

release or the amount of bail, the court must consider the factors set forth in

A.R.S. § 13-3967(B).

(b) Before Conviction: Non-Bailable Offenses. The court must not release a defendant

on bail if it finds the defendant is not bailable under applicable law.

(1) Superior Court.

(A) Before Sentencing. After a defendant is convicted of an offense for which the

defendant will, in all reasonable probability, receive a sentence of

imprisonment, the court may not release the defendant on bail or on the

defendant’s own recognizance unless:

(i) the court finds that reasonable grounds exist to believe that the conviction

may be set aside on a motion for new trial, judgment of acquittal, or other

post-trial motion; or

(ii) the parties stipulate otherwise and the court approves the stipulation.

(B) After a Sentence Involving Imprisonment. If a defendant is convicted of a

felony offense and is sentenced to prison, the court may not release the

defendant on bail or on the defendant’s own recognizance pending appeal

unless the court finds the defendant is in such a physical condition that

continued confinement would endanger the defendant’s life.

released under (c)(1)(A) or (B), the court must impose conditions that will

protect the victim, any other person, or the community from risk of harm by

the defendant.

(D) After Sentence, Pending Appeal. If a defendant is released pending appeal but

fails to diligently pursue the appeal, the court must revoke the release.

(E) Release upon Sentence Completion. A defendant held in custody pending

appeal must be released if the term of incarceration is completed before the

appeal is decided.

(2) Limited Jurisdiction Courts.

(A) Conditions of Release on Appeal. If a defendant files a timely notice of

appeal of a conviction for an offense for which the court has imposed a

sentence of incarceration, the defendant may remain out of custody under the

same conditions of release imposed at or after the defendant’s initial

appearance or arraignment.

(B) Lack of Diligence on Appeal. If a defendant is released pending appeal but

fails to diligently pursue the appeal, the court must revoke the release.

(i) Upon the filing of a timely notice of appeal, the court—on motion or on its

own—may amend the conditions of release if it finds a substantial risk

exists that the defendant presents a danger to the victim, another person or

the community, or the defendant is unlikely to return to court if required to

do so after the appeal concludes.

(ii) The court must hear a motion under this rule no later than 3 days after

filing, although it may continue the hearing for good cause. The defendant

may be detained pending the hearing. The hearing must be on the record,

and the defendant is entitled to representation by counsel. Any testimony

by the defendant is not admissible in another proceeding except as it

relates to compliance with prior conditions of release, perjury, or

impeachment. The court must state its findings on the record.

(iii) The court may amend the conditions of release in accordance with the

standards set forth in Rule 7.3 and Rule 7.4(b). In determining the method

of release or the amount of bail, the court must consider the nature and

circumstances of the offense, family or local ties, employment, financial

resources, the defendant’s character and mental condition, the length of

residence in the community, the record of arrests or convictions, the risk of

harm to the victim, other persons, or the community, and appearances at

prior court proceedings.

(D) Release upon Sentence Completion. A defendant held in custody pending

appeal must be released if the defendant’s term of incarceration is completed

before the appeal is decided.

(E) Superior Court Review. If the trial court enters an order setting a bond or

requiring incarceration during the appeal, the defendant may petition the

superior court to stay the execution of sentence and to allow the defendant’s

release either without bond or on a reduced bond.

(d) Burden of Proof. A court must determine issues under (a) and (c) by a

preponderance of the evidence. The State bears the burden of establishing factual

issues under (a), (b) and (c)(2). The defendant bears the burden of establishing factual

issues under (c)(1).

Rule 7.3. Conditions of Release

(a) Mandatory Conditions. Every order of release must contain the following

conditions:

(1) the defendant must appear at all court proceedings;

(2) the defendant must not commit any criminal offense;

(3) the defendant must not leave Arizona without the court’s permission; and

(4) if a defendant is released during an appeal after judgment and sentence, the

defendant will diligently pursue the appeal.

(b) Mandatory Condition if Charged with an Offense Listed in A.R.S. § 13610(O)(3).

(1) Generally. If a defendant is charged with an offense listed in A.R.S. § 13610(O)(3) and has been summoned to appear in court, the court must order the

defendant to report to the arresting law enforcement agency or its designee no

later than 5 days after release, and submit a sample of buccal cells or other bodily

substances for DNA testing as directed. The defendant must provide proof of

compliance at the next scheduled court proceeding.

(2) Required Notice. The court must inform the defendant that a willful failure to

comply with an order under (b)(1) will result in revocation of release.

such an order is reasonable and necessary to protect a victim from physical harm,

harassment, intimidation, or abuse. The court also may impose as a condition of

release one or more of the following conditions, if the court finds the condition is

reasonable and necessary to secure the defendant’s appearance or to protect another

person or the community from risk of harm by the defendant. In making

determinations under this rule, the court must consider the results of a risk assessment

approved by the Supreme Court and, if provided, a law enforcement agency’s lethality

assessment.

(1) Non-Monetary Conditions. A court may impose the following non-monetary

conditions:

(A) placing the defendant in the custody of a designated person or organization

that agrees to provide supervision;

(B) restricting the defendant’s travel, associations, or residence;

(D) engaging in certain described activities, or consuming intoxicating liquors or

any controlled substance that is not properly prescribed;

(E) requiring the defendant to report regularly to and remain under the supervision

of an officer of the court;

(F) returning the defendant to custody after specified hours; or

(G) imposing any other non-monetary condition that is reasonably related to

securing the defendant’s appearance or protecting others or the community

from risk of harm by the defendant.

(2) Monetary Conditions.

(A) Generally. A court’s imposition of a monetary condition of release must be

based on an individualized determination of the defendant’s risk of nonappearance, risk of harm to others or the community, and the defendant’s

financial circumstances. The court may not rely on a schedule of charge-based

bond amounts, and it must not impose a monetary condition that results in

unnecessary pretrial incarceration solely because the defendant is unable to

pay the imposed monetary condition.

(B) Least Onerous Alternative. If the court determines a monetary condition is

necessary, it must impose the least onerous type of condition in the lowest

amount necessary to secure the defendant’s appearance or protect other

persons or the community from risk of harm by the defendant.

include the following:

(i) an unsecured appearance bond;

(ii) a deposit bond;

(iii) another type of secured bond; and

(iv) a cash bond.

Rule 7.4. Procedure

(a) Initial Appearance. At an initial appearance, the court must issue an order

containing the conditions of release. The order must inform the defendant of the

conditions and possible consequences for violating a condition, and that the court may

immediately issue a warrant for the defendant’s arrest if there is a violation.

(b) Later Review of Conditions.

(1) Generally. On motion or on its own, a court may reexamine the conditions of

release if the case is transferred to a different court or a motion alleges the

existence of material facts not previously presented to the court.

(2) Motion Requirements and Hearing. The court may modify the conditions of

release only after giving the parties an opportunity to respond to the proposed

modification. A motion to reexamine the conditions of release must comply with

victims’ rights requirements provided in Rule 39.

(3) Non-Bailable Offenses. If the motion involves whether the defendant should be

held without bail, it need not allege new material facts. The court must hold a

hearing on the record as soon as practicable, but no later than 7 days after the

motion’s filing.

is not admissible under the Arizona Rules of Evidence.

(d) Review of Conditions of Release for Misdemeanors. No later than 10 days after

arraignment, the court must determine whether to amend the conditions of release for

any defendant held in custody on bond for a misdemeanor.

(e) Appointment of Counsel. The court must appoint counsel in any case in which the

defendant is eligible for the appointment of counsel under Rule 6.1(b).

COMMENT

Rule 7.4(d). The rule’s intent is to assure that a defendant will not spend more time in

jail based on an inability to post bond than the defendant would spend after completing a

sentence imposed for the charge, and to ensure that no defendant becomes lost in the

system. The court should document its review of the case file.

Rule 7.5. Review of Conditions; Revocation of Release

(a) On State’s Petition. If the State files a verified petition stating facts or circumstances

showing the defendant has violated a condition of release, the court may issue a

summons or warrant under Rule 3.2, or a notice setting a hearing, to secure the

defendant’s presence in court and to consider the matters raised in the petition. A

copy of the petition must be provided with the summons, warrant, or notice.

(b) On Pretrial Services’ Report. If pretrial services submits a written report to the

court stating facts or circumstances showing the defendant has violated a condition of

release, the court may issue a summons or warrant under Rule 3.2, or a notice setting

a hearing, to secure the defendant’s presence in court and to consider the matters

raised in the report. A copy of the report must be provided to the State and provided

with the summons, warrant, or notice.

victim may petition the court to revoke the defendant’s bond or own recognizance

release, or otherwise modify the defendant’s conditions of release. Before filing a

petition, the victim must consult with the prosecutor about the requested relief. The

petition must include a statement under oath by the victim asserting any harassment,

threats, physical violence, or intimidation by the defendant, or on the defendant’s

behalf, against the victim or the victim’s immediate family.

(d) Hearing; Modification of Conditions; Revocation.

(1) Modification of Conditions of Release. After a hearing on the matters set forth

in the petition or report, the court may impose different or additional conditions

of release if it finds that the defendant has willfully violated the conditions of

release.

(2) Revocation of Release on a Felony Offense. The court may revoke release of a

defendant charged with a felony if, after a hearing, the court finds that the proof

is evident or presumption great as to the present charge and:

(A) probable cause exists to believe that the defendant committed another felony

during the period of release; or

(B) the defendant poses a substantial danger to another person or the community,

and no other conditions of release will reasonably assure the safety of the

other person or the community.

(e) Revocation of Release: DNA Testing. The State may file a motion asking the court

to revoke a defendant’s release for failing to comply with the court’s order to provide

a sample of buccal cells or other bodily substances for DNA testing under A.R.S. §

13-3967(F)(4) and to provide proof of compliance. The motion must state facts

establishing probable cause to believe that the defendant has not complied with the

order. At the defendant’s next court appearance, the court must proceed in accordance

with this rule’s requirements and A.R.S. § 13-3967(F)(4).

(f) Revocation of Release: 10-print Fingerprinting. If a defendant fails to timely

present a completed mandatory fingerprint compliance form or if the court has not

received the process control number, the court may remand the defendant into custody

for 10-print fingerprinting. If otherwise eligible for release, the defendant must be

released from custody after being 10-print fingerprinted.

Rule 7.6. Transfer and Disposition of Bond

(a) Transfer upon Supervening Indictment. An appearance bond or release order

issued following the filing of a felony complaint in justice court will automatically be

transferred to a criminal case in superior court after an indictment is filed that alleges

the same charges.

(b) Filing and Custody of Appearance Bonds and Security. A defendant must file an

appearance bond and security, if ordered, with the clerk of the court in which a case is

pending or the court in which the initial appearance is held. If the case is transferred

to another court, the transferring court must transfer any appearance bond and

security.

(1) Arrest Warrant and Notice to Surety. If the court is informed that the defendant

has violated a condition of an appearance bond, it may issue a warrant for the

defendant’s arrest. No later than 10 days after the warrant’s issuance, the court

must notify the surety, in writing or electronically, that the warrant was issued.

(2) Hearing and Notice. After issuing the arrest warrant, the court must set a

hearing within a reasonable time, no later than 120 days after it issued the

warrant, requiring the parties and any surety to show cause why the bond should

not be forfeited. The court must notify the parties and any surety of the hearing in

writing or electronically. The forfeiture hearing may be combined with a Rule

7.5(d) hearing.

(3) Forfeiture. If the court finds that the violation is not excused, it may enter an

order forfeiting all or part of the bond amount, and the State may enforce that

order as a civil judgment. The order must comply with Arizona Rule of Civil

Procedure 58(a).

(d) Exoneration.

(1) Generally. If the court finds before a violation that there is no further need for

an appearance bond, it must exonerate the bond and order the return of any

security.

(2) Amount Returned. When a deposit bond or cash bond is exonerated, the court

must order the return of the entire amount deposited unless forfeited under Rule

7.6(c)(3) or the bond depositor authorizes it be applied to a financial obligation.

(3) If the Defendant Is Surrendered, In-Custody, or Transferred. The court must

exonerate the bond if:

(A) the surety surrenders the defendant to the sheriff of the county in which the

prosecution is pending, and:

(i) the surrender is on or before the day and time the defendant is ordered to

appear in court; and

(ii) the sheriff informs the court of the defendant’s surrender;

(B) the defendant is in the custody of the sheriff of the county in which the

prosecution is pending on or before the day and time the defendant is ordered

to appear in court under the following conditions:

(i) the surety provides the sheriff with an affidavit of surrender of the

appearance bond; and

(ii) the sheriff reports the defendant is in custody and that the surety has

provided an affidavit of surrender of the appearance bond; or

was released or transferred to the custody of another government agency,

preventing the defendant from appearing in court on the scheduled court date

and the surety establishes:

(i) the surety did not know and could not have reasonably known of the

release or transfer or that a release or transfer was likely to occur; and

(ii) the defendant’s failure to appear was a direct result of the release or

transfer.

(4) Conditions When Not Required to Exonerate Bond. The court is not required to

exonerate the bond under (d)(2)(C) if a detainer was placed on the defendant

before the bond was posted or the release or transfer to another government

agency was for 24 hours or less.

(5) Other Circumstances. In all other instances, the decision whether or not to

exonerate a bond is within the discretion of the court.

(6) Post-Forfeiture Notice. After filing an order of forfeiture, the court must

provide:

(A) a copy of the order to the State, the defendant, the defendant’s attorney, and

the surety; and

(B) a copy of a signed order to the county attorney for collection.

Rule 8. Speedy Trial

Rule 8.1. Priorities in Scheduling Criminal Cases

(a) Priority of Criminal Trials. A trial of a criminal case has priority over a trial of a

civil case.

(b) Preferences. The trial of a defendant in custody, and the trial of a defendant whose

pretrial liberty may present unusual risks, have preference over other criminal cases.

priority of cases for trial.

(d) Duty of Defense Counsel. Defense counsel must advise the court of an impending

expiration of time limits. A court may sanction counsel for failing to do so, and

should consider a failure to timely notify the court of an expiring time limit in

determining whether to dismiss an action with prejudice under Rule 8.6.

(e) Suspension of Rule 8. No later than 25 days after a superior court arraignment,

either party may move for a hearing to establish extraordinary circumstances

requiring a suspension of Rule 8. No later than 5 days after the motion is filed, the

court must hold a hearing on the motion and make findings of fact about whether

extraordinary circumstances exist that justify the suspension of Rule 8. If the trial

court finds that Rule 8 should be suspended, the court must immediately transmit its

findings to the Supreme Court Chief Justice. If the Chief Justice approves the

findings, the trial court may suspend Rule 8’s provisions and reset the trial for a later

specified date.

Rule 8.2. Time Limits

(a) Generally. Subject to Rule 8.4, the court must try every defendant against whom an

indictment, information, or complaint is filed within the following times:

(1) Defendants in Custody. No later than 150 days after arraignment if the

defendant is in custody, except as provided in (a)(3).

(2) Defendants out of Custody. No later than 180 days after arraignment if the

defendant is released under Rule 7, except as provided in (a)(3).

(3) Defendants in Complex Cases. No later than 270 days after arraignment if the

defendant is charged with any of the following:

(A) first degree murder, except as provided in (a)(4);

(B) offenses that will require the court to consider evidence obtained as the result

of an order permitting the interception of wire, electronic, or oral

communication; or

(4) Capital Cases. No later than 24 months after the date the State files a notice of

intent to seek the death penalty under Rule 15.1(i).

(b) Waiver of Appearance at Arraignment. If a defendant waives an appearance at

arraignment under Rule 14.3, the date of an arraignment held in the defendant’s

absence is deemed to be the arraignment date.

no later than 60 days after entry of the court’s order. A trial ordered upon an appellate

court’s reversal of a judgment must begin no later than 90 days after the appellate

court issues its mandate. A new trial ordered by a state court under Rule 32 or a

federal court under collateral review must begin no later than 90 days after entry of

the court’s order.

(d) Extension of Time Limits. The court may extend the time limits in (a) and (c) under

Rule 8.5.

(e) Specific Date for Trial. The superior court must set a specific trial date either at the

arraignment or a pretrial conference, unless the court has suspended Rule 8.

Rule 8.3. Prisoner’s Right to a Speedy Trial

(a) Prisoner in Another State. Within 90 days after receiving a written request from a

person charged with a crime who is incarcerated in another state, or within a

reasonable time after otherwise learning of the person’s incarceration, the State must

take action as required by law to obtain that person’s presence for trial. The defendant

must be brought to trial no later than 90 days after having been delivered into the

custody of the appropriate authority of the State of Arizona.

(b) Prisoner in Arizona.

(1) Request for Final Disposition. A defendant imprisoned in Arizona may request

the final disposition of any untried indictment, information, or complaint pending

in Arizona. The request must be in writing, addressed to the court in which the

case is filed, and to the responsible prosecuting agency. The request must state

the defendant’s place of imprisonment.

(2) Detainer. No later than 30 days after a detainer is filed against a defendant

incarcerated in Arizona, the prosecuting agency that is prosecuting the charge

that resulted in the detainer must inform the defendant about the detainer and

about the defendant’s right to request its final disposition under (b)(1).

(3) Deadline for Acting on a Request. The defendant must be brought to trial on the

charge no later than 90 days after sending a request for final disposition to the

court and prosecutor.

(4) Escape from Custody. A defendant’s request for final disposition is void if the

defendant later escapes from custody.

Rule 8.4. Excluded Periods

(a) Generally. Delays caused or resulting from the following time periods are excluded

from the time computations set forth in Rules 8.2 and 8.3:

(1) those caused by or on behalf of the defendant, whether or not intentional or

willful, including, but not limited to, delays caused by an examination and

hearing to determine competency or intellectual disability, the defendant’s

absence or incompetence, or the defendant’s inability to be arrested or taken into

custody in Arizona;

(2) a remand for a new probable cause determination under Rules 5.5 or 12.9;

(3) a time extension for disclosure under Rule 15.6;

(4) trial calendar congestion, but only if the congestion is due to extraordinary

circumstances, in which case the presiding judge must promptly apply to the

Supreme Court Chief Justice to suspend Rule 8 or any other Rule of Criminal

Procedure;

(5) continuances granted under Rule 8.5;

(6) joinder for trial with another defendant for whom the time limits have not run, if

good cause exists for denying severance, but in all other cases, severance should

be granted to preserve the applicable time limits; and

(7) the setting of a transfer hearing under Rule 40.

(b) Excluding Time After a Finding of Competency or Restoration. If a court finds

that a defendant is competent, has been restored to competency, or is no longer

absent, and if the finding is made within 30 days of when the time limits in Rules 8.2

and 8.3 will otherwise expire, the court must exclude an additional 30 days in

computing the time limits under those rules.

Rule 8.5. Continuing a Trial Date

(a) Motion. A party may ask to continue trial by filing a motion stating the specific

reasons for the request.

(b) Grounds. A court may continue trial only on a showing that extraordinary

circumstances exist and that delay is indispensable to the interests of justice, and only

for so long as is necessary to serve the interests of justice. The court must consider the

rights of the defendant and any victim to a speedy disposition of the case. The court

must state specific reasons for continuing trial.

Rule 8.6. Denial of Speedy Trial

If the court determines, after excluding any applicable time periods, that a time limit

established by these rules has been violated, the court must dismiss the prosecution with

or without prejudice.

Rule 8.7. Accelerating Trial

If there are special circumstances relating to the victim or other good cause, the court

may accelerate the trial to the earliest possible date consistent with the defendant’s right

to a fair trial. The presiding judge may assign another judge to preside at trial to ensure

that the trial begins on the scheduled date.

Rule 9. Presence of the Defendant, Witnesses, and Spectators

Rule 9.1. The Defendant’s Waiver of the Right to Be Present

Except for sentencing or as these rules otherwise provide, a defendant’s voluntary

absence waives the right to be present at any proceeding. The court may infer that a

defendant’s absence is voluntary if the defendant had actual notice of the date and time of

the proceeding, notice of the right to be present, and notice that the proceeding would go

forward in the defendant’s absence.

Rule 9.2. Defendant’s Forfeiture of the Right to Be Present Due to Disruptive

Conduct

(a) Generally. A defendant who engages in disruptive conduct, after being warned that

such conduct will result in expulsion from a proceeding, forfeits the right to be

present at that proceeding. At the time of expulsion, the court must inform the

defendant that he or she can return upon a promise to the court of future orderly

conduct.

(b) Continuing Duty to Permit Participation. After expulsion, the court must use every

feasible means to allow the defendant to watch, hear, and be informed of the

proceeding’s progress, and to consult with counsel at reasonable intervals. The court

should inquire periodically if the defendant wishes to reacquire the right to be present.

proceeding if the defendant personally assures the court of future good behavior. If

the defendant later engages in disruptive conduct, the court may exclude the

defendant from the proceeding without additional warning.

Rule 9.3. Exclusion of Witnesses and Spectators

(a) Witnesses.

(1) Generally. The court may, and at the request of either party must, exclude

prospective witnesses from the courtroom during opening statements and other

witnesses’ testimony. If the court finds that a party’s claim that a person is a

prospective witness is not made in good faith, it may not exclude the person.

(2) Exceptions.

(A) Victim. A victim has a right to be present at all proceedings at which the

defendant has that right.

(B) Investigator. If the court enters an exclusion order, both the defendant and the

State are nevertheless entitled to the presence of one investigator at counsel

table.

(3) Instruction. As part of its exclusion order, the court must instruct the witnesses

not to communicate with each other about the case until all of them have

testified.

(4) After Testifying. Once a witness has testified on direct examination and has

been made available to all parties for cross-examination, the court must allow the

witness to remain in the courtroom, unless a party requests continued exclusion

because the witness may be recalled or the court finds that the witness’s presence

would be prejudicial to a fair trial.

(b) Spectators.

(1) Generally. All proceedings must be open to the public, including news media

representatives, unless the court finds, on motion or on its own, that an open

proceeding presents a clear and present danger to the defendant’s right to a fair

trial by an impartial jury.

(2) Record. The court must keep a complete record of any closed proceedings and

make it available to the public following the trial’s completion or, if no trial

occurs, the final disposition of the case.

representatives, during a witness’s testimony if the court finds it is reasonably

necessary to protect the witness’s safety or to protect the witness from embarrassment

or emotional disturbance.

Rule 10. Change of Judge or Place of Trial

Rule 10.1. Change of Judge for Cause

(a) Grounds. A party is entitled to a change of judge if the party shows that the assigned

judge’s interest or prejudice would prevent a fair and impartial hearing or trial.

(b) Procedure.

(1) Motion, Timing, and Form. A party seeking a change of judge for cause must

file a motion no later than 10 days after discovering that grounds exist, but may

not file a motion after a hearing or trial begins. The motion must state specific

grounds for the change of judge and be supported by an affidavit. Allegations of

interest or prejudice that prevent a fair and impartial hearing or trial that arise

after commencement of the hearing or trial may be preserved for appeal by

making an appropriate motion.

(2) Further Action by Judge. If a party files a timely motion for change of judge,

the judge should not proceed, except to enter necessary temporary orders before

the action can be transferred to the presiding judge or the presiding judge’s

designee. If the named judge is the presiding judge, that judge must assign the

motion to another judge.

(1) Hearing and Ruling. Promptly after a party files a timely motion under this

rule, the presiding judge must provide for a hearing on the motion before a judge

other than the challenged judge. After holding the hearing, the hearing judge

must decide the issues by a preponderance of the evidence and enter an order

stating findings and ruling on the motion. The hearing judge will then return the

matter to the presiding judge.

(2) Assignment or Reassignment. The presiding judge will promptly assign the

action back to the original judge if the motion is denied, or will make a new

assignment if the motion is granted.

(3) Effect on Other Defendants. If there are multiple defendants, the grant of a

motion for change of judge filed by one or more defendants does not require a

change of judge as to the other defendants, even though the change of judge may

result in severance for trial purposes.

Rule 10.2. Change of Judge as a Matter of Right

(a) Entitlement.

(1) Generally. Each side in a criminal case is entitled to one change of judge as a

matter of right. If two or more parties on a side have adverse or hostile interests,

the presiding judge or that judge’s designee may allow additional changes of

judge as a matter of right.

(2) Meaning of “Side.” Each case, including one that is consolidated, is treated as

having only two sides.

(3) Per Party Limit. A party exercising a change of judge as a matter of right is not

entitled to another change of judge as a matter of right.

(4) Inapplicability to Certain Proceedings. A party is not entitled to a change of

judge as a matter of right in a proceeding under Rule 32 or a remand for

resentencing.

(b) Procedure.

(1) Generally. A party may exercise a right to change of judge by filing a “Notice of

Change of Judge” signed by counsel or a self-represented defendant, and stating

the name of the judge to be changed. The notice also must include an avowal that

the party is making the request in good faith and not for an improper purpose. An

attorney’s avowal is in the attorney’s capacity as an officer of the court.

(2) “Improper Purpose.” “Improper purpose” means:

(A) for the purpose of delay;

(B) to obtain a severance;

(D) to remove a judge for reasons of race, gender or religious affiliation;

(E) for the purpose of using the rule against a particular judge in a blanket fashion

by a prosecuting agency, defender group, or law firm;

(F) to obtain a more convenient geographical location; or

(G) to obtain an advantage or avoid a disadvantage in connection with a plea

bargain or at sentencing, except as permitted under Rule 17.4(g).

(3) Further Action by the Judge. If a notice of change of judge is timely filed, the

judge should proceed no further in the action, except to enter any necessary

temporary orders before the action can be transferred to the presiding judge or

the presiding judge’s designee. If the named judge is the presiding judge, that

judge may continue to perform the functions of the presiding judge.

(1) Generally. Except as provided in (c)(2), or extended by local rule, a party must

file a notice of change of judge no later than 10 days after any of the following:

(A) the arraignment, if the case is assigned to a judge and the parties are given

actual notice of the assignment at or before the arraignment;

(B) the superior court clerk’s filing of a mandate issued by an appellate court; or

case to a judge.

(2) Exception. Despite (c)(1), if a new judge is assigned to a case less than 10 days

before trial (inclusive of the date of assignment), a notice of change of judge

must be filed, with appropriate actual notice to the other party or parties, no later

than by 5:00 p.m. on the next business day following actual receipt of a notice of

the assignment or by the start of trial, whichever occurs earlier.

(d) Assignment to a New Judge and Effect on Other Defendants.

(1) On Stipulation. If a notice of change of judge is timely filed, the notice may

inform the court that all the parties have agreed on a judge who is available and

willing to accept the assignment. Such an agreement may be honored and, if so,

it bars further changes of judge as a matter of right, unless the agreed-on judge

later becomes unavailable. If a judge to whom the action has been assigned by

agreement later becomes unavailable because of a change of calendar

assignment, death, illness, or other legal incapacity, the parties may assert any

rights under this rule that existed immediately before the assignment of the action

to that judge.

(2) Absent Stipulation. If a timely notice of judge has been filed and no judge has

been agreed on, the presiding judge must immediately reassign the action to

another judge.

(3) Effect on Other Defendants. If there are multiple defendants, a notice of change

of judge filed by one or more defendants does not require a change of judge as to

the other defendants, even though the notice of change of judge may result in

severance for trial purposes.

(e) Waiver. A party loses the right to a change of judge under this rule if the party

participates before that judge in any contested matter in the case, a proceeding under

Rule 17, or the beginning of trial.

(f) Following Remand. Unless previously exercised, a party may exercise a change of

judge as a matter of right following an appellate court’s remand for new trial, and no

event connected with the first trial constitutes a waiver. A party may not exercise a

change of judge as a matter of right following a remand for resentencing.

Rule 10.3. Changing the Place of Trial

(a) Grounds. A party is entitled to change the place of trial to another county if the party

shows that the party cannot have a fair and impartial trial in that place for any reason

other than the trial judge’s interest or prejudice.

(b) Prejudicial Pretrial Publicity. If the grounds to change the place of trial are based

on pretrial publicity, the moving party must prove that the dissemination of the

prejudicial material probably will result in the party being deprived of a fair trial.

that relief. The motion must be filed before trial, and, in superior court, at or before a

pretrial conference.

(d) Waiver. A party loses the right to change the place of trial if the party allows a

proceeding to begin or continue without raising a timely objection after learning of

the cause for challenge.

(e) Renewal on Remand. If an appellate court remands an action for a new trial on one

or more offenses charged in an indictment or information, all parties’ rights to change

the place of trial are renewed, and no event connected with the first trial constitutes a

waiver.

Rule 10.4. Transfer to Another County

If the court transfers a case to another county, the clerk in the transferring county must

transmit to the clerk in the receiving county the court file, any evidence in the clerk’s

custody, and any appearance bond or security. If the defendant is in custody, the sheriff in

the transferring county must transport the defendant to the sheriff of the receiving county.

The action will retain the case number and geographic designation of the matter while it

was in the transferring county.

Rule 11. Incompetence and Mental Examinations

Rule 11.1. Definitions, Effect of Incompetence, and Right to Counsel

(a) Definitions.

(1) Mental Illness, Defect, or Disability. “Mental illness, defect, or disability”

means a psychiatric or neurological disorder that is evidenced by behavioral or

emotional symptoms, including congenital mental conditions, conditions

resulting from injury or disease, and developmental disabilities as defined in

A.R.S. § 36-551.

(2) Incompetence. “Incompetence” means a defendant is unable to understand the

nature and objective of the proceedings or to assist in his or her defense because

of a mental illness, defect, or disability.

(b) Effect of Incompetence. A defendant may not be tried, convicted, or sentenced

while that defendant is incompetent. A defendant is not incompetent to stand trial

merely because the defendant has a mental illness, defect, or disability. This rule does

not bar a court from proceeding under A.R.S. § 36-3707(D).

representation by counsel as provided in Rule 6.

Rule 11.2. Motion for an Examination of a Defendant’s Competence to Stand Trial

(a) Motion and Order for Examination.

(1) Generally. At any time after an information is filed or an indictment is returned

in superior court or a misdemeanor complaint is filed, the court may, on motion

or on its own, order a defendant’s examination to determine whether the

defendant is competent to stand trial.

(2) Motion to Determine Competence. The moving party or the court must state

facts for the requested mental examination.

(3) Parties Authorized to Move for Competence Determination. Any party,

including a co-defendant, may move for a competence evaluation.

(4) Proposed Examiners. A party’s motion may include a list of 3 mental health

experts qualified under Rule 11.3 to conduct the examination. Any other party

may include such a list in its response to the motion.

(b) Medical and Criminal History Records. No later than 3 days after the appointment

of experts, the parties must provide the examining mental health experts with all of

the defendant’s available medical and criminal history records.

preliminary examination to assist the court in determining if reasonable grounds exist

to order the defendant’s further examination.

(d) Jurisdiction.

(1) Superior Court. The superior court has exclusive jurisdiction over all

competence hearings except as provided in (d)(2). If a limited jurisdiction court

determines that reasonable grounds exist for further competence hearings, it must

immediately transfer the matter to the superior court for the appointment of

mental health experts.

(2) Limited Jurisdiction Court. If the matter of a defendant’s competence arises in a

misdemeanor case in a limited jurisdiction court, a limited jurisdiction court

judge may hear the matter if the presiding superior court judge has issued an

administrative order authorizing the limited jurisdiction court to do so.

(e) If Defendant Is Competent. If any court determines that a defendant is either

competent or restored to competence, regular proceedings must proceed without

delay.

(f) Dismissal of Misdemeanor Charges. If the court finds that a person has been

previously adjudicated incompetent to stand trial under this rule, the court may hold a

hearing to dismiss any misdemeanor charge against the incompetent person under

A.R.S. § 13-4504.

Rule 11.3. Appointment of Experts

(a) Appointment of Experts.

(1) Definition of a “Mental Health Expert.” “Mental health expert” means a

physician licensed under A.R.S. §§ 32-1421 to -1437 or 32-1721 to -1730; or a

psychologist licensed under A.R.S. §§ 32-2071 to -2076.

(2) Generally. If the court finds that reasonable grounds exist for a competence

examination, it must appoint two or more qualified mental health experts to:

(A) examine the defendant;

(B) report to the court in writing no later than 10 business days after examining

the defendant; and

(3) Psychiatry Background. A party may request or the court may order that at least

one of the mental health experts be a physician specializing in psychiatry.

(4) Stipulation for Only One Examiner. With the court’s approval, the State and

the defendant may stipulate to the appointment of only one expert.

(5) Examiner Qualifications. A mental health expert must be:

(A) familiar with Arizona’s standards and statutes for competence and criminal

and involuntary commitment statutes;

(B) familiar with the treatment, training, and restoration programs that are

available in Arizona; and

demonstrated experience in forensics matters, required attendance at a courtapproved training program of not less than 16 hours and any court-required

continuing forensic education programs, and annual review criteria.

(6) Replacement. If the appointed expert is unable to examine the defendant within

the time allotted, the expert must immediately inform the court, and the court

may appoint a different expert to perform the examination.

(b) Custody Status of the Defendant During Competence Proceedings. Pending the

court’s determination of competence, the court must determine the defendant’s

custody status under A.R.S. § 13-4507.

(d) Additional Expert Assistance. If necessary for an adequate determination of the

defendant’s mental competence, the court may appoint additional experts and order

the defendant to submit to additional physical, neurological, or psychological

examinations.

Rule 11.4. Disclosure of Experts’ Reports

(a) Reports of Appointed Experts Under Rule 11.3.

(1) Deadline. An expert appointed under Rule 11.3 must submit a report to the court

no later than 10 business days after the expert’s examination is completed. The

expert must inform the court if the report cannot be made available at least 7

days before the scheduled hearing.

(2) Availability. An expert’s report completed under Rule 11.3 must be made

available to the examined defendant and the State, except that any statement by

the defendant about the charged offense or any other charged or uncharged

offense (or any summary of such a statement) may be made available only to the

defendant. Upon receipt, court staff will copy and provide the expert’s report to

the court and defense counsel. Defense counsel is responsible for editing a copy

of the report for the State. Defense counsel must provide the edited report to

court staff to be made available to the State no later than 3 days after receiving

the unedited report.

(b) Reports of Other Experts. For any other mental health expert who has personally

examined the defendant or any evidence in connection with the case to determine

competence or the defendant’s mental status at the time of the offense, the defendant

and the State must disclose to each other at least 15 business days before any Rule

11.5 hearing:

(1) the expert’s name and address;

(2) the results of any mental examinations, scientific tests, experiments, or

comparisons conducted on the defendant or on any evidence in the case by or on

the behalf of the mental health expert; and

(3) any written report or statement in connection with the case.

Rule 11.5. Hearing and Orders

(a) Hearing. No later than 30 days after the experts appointed under Rule 11.3 submit

their reports to the court, the court must hold a hearing to determine the defendant’s

competence. The court may grant additional time for good cause. The defendant and

the State may introduce other evidence about the defendant’s mental condition. If the

defendant and the State stipulate in writing or on the record, the court may determine

competence based solely on the experts’ reports.

(b) Orders.

(1) If Competent. If the court finds that the defendant is competent, the court must

direct that proceedings continue without delay.

(2) If Incompetent but Restorable.

(A) Generally. If a limited jurisdiction court determines that a defendant is

incompetent, it must either dismiss the charges on the State’s motion, or

transfer the case to the superior court for further proceedings. Upon transfer

from a limited jurisdiction court, or if the superior court determines that the

defendant is incompetent, it must order competency restoration treatment,

unless there is clear and convincing evidence that the defendant will not

regain competence within 15 months.

(B) Extended Treatment. The court may extend treatment for 6 months beyond

the 15-month limit if it finds that the defendant is progressing toward

competence.

be subject to treatment without consent.

(D) Treatment Order. A treatment order must specify:

(i) the place where treatment will occur;

(ii) whether the treatment is inpatient or outpatient under A.R.S. § 134512(A);

(iii) the means of transportation to the treatment site;

(iv) the length of treatment;

(v) the means of transporting the defendant after treatment; and

(vi) that the court is to be notified if the defendant regains competence before

the expiration of the treatment order.

(E) Modification and Limitation. The court may modify a treatment order at any

time. Treatment orders are effective for no longer than 6 months.

(3) If Incompetent and Not Restorable. If the court determines that the defendant is

incompetent and that there is no substantial probability that the defendant will

become competent within 21 months, the court may on request of the examined

defendant or the State do one or more of the following:

(A) remand the defendant to an evaluating agency approved and licensed under

Title 36 to begin civil commitment proceedings under A.R.S. §§ 36-501 et

seq.;

(B) order appointment of a guardian under A.R.S. §§ 14-5301 et seq.; or

(4) Additional Actions. If the court enters an order under (b)(3)(A) or (b)(3)(B), it

may retain jurisdiction and enter further orders as specified in A.R.S. §§ 13-4517

and 13-4518.

(1) Generally. The court must order the treatment supervisor to submit a report to

the court and to provide copies to defense counsel and the clinical liaison.

Defense counsel may redact the report under Rule 11.4(a)(2) before returning it

to the court to be provided to the State.

(2) When to Report. The treatment supervisor must submit a report:

(A) for inpatient treatment, 120 days after the filing of the court’s original

treatment order and then every 180 days after the first report;

(B) for outpatient treatment, every 60 days following the filing of the court’s

original treatment order;

trial;

(D) when the treatment supervisor concludes that the defendant will not be

restored to competence within 21 months of the court’s finding of

incompetence; and

(E) 14 days before the expiration of the court’s last treatment order.

(3) Content of Report.

(A) Generally. The treatment supervisor’s report must include at least the

following:

(i) the treatment supervisor’s name;

(ii) a description of the nature, content, extent, and results of the supervisor’s

examination of the defendant and any tests the supervisor conducted;

(iii) the facts on which the treatment supervisor’s findings are based; and

(iv) the treatment supervisor’s opinion regarding the defendant’s competence

to understand the nature of the court proceedings against the defendant and

to assist in his or her defense.

(B) If Still Incompetent. If the treatment supervisor finds the defendant is still

incompetent, the report also must include:

(i) the nature of the mental illness, defect, or disability that is the cause of the

incompetence;

(ii) a prognosis regarding the defendant’s restoration to competence and an

estimate of how long it will take to restore the defendant’s competence;

and

(iii) any recommendations for treatment modifications.

competence, the report also must include any limitations on the defendant’s

competence caused by medications used in the defendant’s treatment.

(d) Time Calculation. When calculating time limits under A.R.S. § 13-4515(A), the

court must consider only the time a defendant actually spends in a program to restore

competence.

COMMENT

The court should hold review hearings every two to three months to monitor a

defendant’s treatment status and progress.

Rule 11.6. Later Hearings

(a) Grounds. The court must hold an additional hearing to determine the defendant’s

competence:

(1) upon receiving a report from an authorized official of the institution in which a

defendant is treated under Rule 11.5(b)(2) or (b)(3)(A) stating that, in the

official’s opinion, the defendant has become competent to stand trial;

(2) upon a defendant’s motion supported by the certificate of a mental health expert

stating that, in the expert’s opinion, the defendant is competent to stand trial;

(3) at the expiration of the maximum period set by the court under Rule 11.5(b)(2);

(4) if the court determines that it is appropriate to do so.

(b) Experts. The court may appoint new mental health experts under Rule 11.3.

proceedings must begin again without delay. The defendant is entitled to repeat any

proceeding if there are reasonable grounds to believe the defendant was prejudiced by

previous incompetence.

(d) Finding of Continuing Incompetence. If the court finds that the defendant is still

incompetent, it must proceed in accordance with Rules 11.5(b)(2) or (3). If the court

determines that there is a substantial probability that the defendant will regain

competence in the foreseeable future, then the court may renew and may modify the

treatment order for no more than an additional 180 days.

(e) Dismissal of Charges. At any time after providing notice and a hearing under A.R.S.

§ 13-4515(C), the court may order the dismissal of the charges against a defendant

adjudged incompetent. The defendant must be released from custody upon dismissal

of the charges unless the court finds that the defendant’s mental condition warrants a

civil commitment hearing under A.R.S. §§ 36-501 et seq.

Rule 11.7. Privilege and Confidentiality

(a) Generally. Evidence obtained under Rule 11 is not admissible in a proceeding to

determine guilt, unless the defendant presents evidence, either directly or through

cross-examination, intended to rebut the presumption of sanity.

(b) Privileged Statements of the Defendant.

(1) Concerning the Charged Offense. Unless the defendant consents or the

exception in (a) applies, no statement of a defendant obtained under Rule 11, or

evidence resulting from such a statement, concerning the factual basis for the

charged offense is admissible at the defendant’s trial, or at any later proceeding

to determine guilt.

(2) Concerning Other Events or Transactions. Unless the defendant consents or

the exception in (a) applies, no statement of a defendant obtained under Rule 11,

or evidence resulting from such a statement, concerning any other event or

transaction is admissible at any later proceeding to determine the defendant’s

guilt.

(3) In Title 36 Proceedings. Notwithstanding (b)(1) and (b)(2), a statement of the

defendant obtained in a Rule 11 matter, or evidence resulting from that

statement, may be used by any party in a hearing to determine whether the

defendant is eligible for court-ordered treatment under Title 36, Chapter 5, or is a

sexually violent person.

(1) Generally. The court and counsel must treat reports of Rule 11 experts as

confidential in all respects. They may, however, disclose other expert reports to

mental health experts in proceedings related to A.R.S. §§ 13-4501 et seq. or as

excluded in A.R.S. §§ 13-4508 and 13-4516.

(2) Sealing. After the defendant is found competent or unable to regain competence,

the court must order the mental health experts’ reports sealed. By later order, the

court may grant access to a report, but only for further competence or sanity

evaluations, statistical study, the examined defendant’s mitigation investigation,

or if necessary to assist in mental health treatment for restoration of competence

or under A.R.S. § 13-502.

Rule 11.8. Examination of a Defendant’s Mental Status at the Time of the Offense

(a) Applicability. At any time after an information is filed or an indictment is returned in

superior court or a misdemeanor complaint is filed, an examination under this rule

may be requested separately from, or in addition to, an examination under Rule 11.2.

(b) Screening Report. On its own or on motion of the defendant or the State with the

defendant’s consent, the court may order an initial screening report to preliminarily

investigate the defendant’s mental status at the time of the offense.

under A.R.S. § 13-502 and a reasonable basis exists to support the defense, the court

may, on its own or on motion of the defendant or the State, order that an appointed

mental health expert provide a screening report. Either the screening report under (b)

or the examination under (c) must include the following:

(1) the defendant’s mental status at the time of the offense; and

(2) if the expert determines that the defendant suffered from a mental disease, defect,

or disability at the time of the offense, the relationship of the disease, defect, or

disability to the alleged offense.

(d) Required Records. No later than 3 days after the appointment of experts, the parties

must provide the examining mental health expert with all of the defendant’s available

medical and criminal history records. No later than 10 business days after the expert’s

appointment, the parties must provide the appointed expert with any additional

medical or criminal history records requested by the court or the appointed expert.

Rule 11.9. Capital Cases

Unless the defendant objects, the court in a capital case must order the defendant to

undergo one or more mental health examinations required under A.R.S. §§ 13-753 and

13-754.

IV. Pretrial Procedures

Rule 12. The Grand Jury

Section One: Rules for Grand Juries

Rule 12.1. Selecting and Preparing Grand Jurors

(a) Summons. Grand jurors are summoned and impaneled as provided by law.

(b) Voir Dire. Each prospective grand juror must be examined under oath or affirmation

to confirm that the prospective juror will act impartially and without prejudice, and

that the prospective juror is qualified under A.R.S. § 21-201. Inquiry also may be

made about other relevant subjects.

give careful attention to the proceedings, abide by the court’s instructions, and decide

matters placed before the grand jury in accordance with the law and evidence

presented to me (so help me God).”

(d) Instructions. The court must inform the grand jurors of:

(1) the duty to be present at each grand jury session;

(2) the duty to inquire into every offense that is presented;

(3) the duty of a grand juror to disqualify himself or herself in a particular matter for

any of the reasons listed in Rule 12.2;

(4) the duty to return an indictment only if they are convinced there is probable

cause to believe an offense has been committed and the person under

investigation committed it;

(5) the right to ask the State to present additional evidence; and

(6) the confidentiality of grand jury matters and materials, and the penalties for

unlawful disclosure.

Rule 12.2. Grounds to Disqualify a Grand Juror

A grand juror is disqualified from serving in any particular matter if the juror is:

(a) a witness in the matter;

(b) interested directly or indirectly in the matter under investigation;

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