RULES OF THE COMMUNITY COURT (2026)
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Chapter 5
RULES OF THE COMMUNITY COURT
Article I.
In General
Sec. 5-1.
Application of law.
Secs. 5-2—5-20. Reserved.
Article II.
Civil Procedure
Secs. 5-21—5-34. Reserved.
Sec. 5-35.
Juries.
Secs. 5-36—5-58. Reserved.
Article III.
Receivers
Sec. 5-59.
Application for appointment.
Sec. 5-60.
Hearing on application.
Sec. 5-61.
Findings of fact.
Sec. 5-62.
Qualifications of receiver.
Sec. 5-63.
Bond.
Sec. 5-64.
Removal or suspension of receiver; termination of receivership.
Secs. 5-65—5-90. Reserved.
Article IV.
Rules of Criminal Procedure
Division 1.
Scope, Purpose and Construction
Rule 1.
Scope.
Rule 2.
Interpretation.
Rule 2.1.
Definitions.
Secs. 5-91—5-120. Reserved.
Division 2.
Preliminary Proceedings
Rule 3.
Rule 3.1.
Rule 3.2.
Rule 3.3.
Commencement of criminal proceeding.
Arrest without a warrant.
Initial appearance of an arrested person.
Complaint against an arrested person; form of complaint; prosecution of complaint.
Rule 4.
Arrest warrant; presumption of summons.
Rule 4.1.
Search warrants.
Rule 5.
Arraignment.
Rule 5.1.
Setting of trial date.
Secs. 5-121—5-149. Reserved.
Division 3.
Rule 6.
Rule 6.1.
Rule 7.
Rule 7.1.
Rule 7.2.
Rule 7.3.
Rule 8.
Rule 9.
Rule 9.1.
Rights of Parties
Assistance of counsel.
Appointment of counsel for indigent defendant (reserved).
Right to trial by jury.
Speedy trial rights.
Excluded periods and continuances.
Remedy for denial of speedy trial rights.
Consideration for release pending trial.
Defendant's right to be present.
Defendant's waiver of his or her presence.
CD5:1
COMMUNITY CODE OF ORDINANCES
Rule 9.2.
Defendant serving sentence in other jurisdiction.
Rule 10.
Change of judge.
Rule 10.1.
Unavailability of judge.
Rule 10.2.
Competency to stand trial.
Secs. 5-150—5-182. Reserved.
Division 4.
Pretrial Motions and Discovery
Rule 11.
Pleas.
Rule 12.
Pretrial motions.
Rule 12.1.
Notice of an alibi defense.
Rule 12.2.
Notice of an insanity defense; mental examination.
Rule 12.3.
Notice of a public authority defense.
Rule 13.
Joinder.
Rule 14.
Relief from prejudicial joinder.
Rule 15.
General standards governing discovery.
Rule 15.1.
Discovery by prosecutor.
Rule 15.2.
Disclosure by defendant.
Rule 15.3.
Depositions.
Rule 15.4.
Disclosure by order of the court.
Rule 15.5.
Excision and protective orders.
Rule 15.6.
Continuing duty to disclose.
Rule 15.7.
Sanctions.
Rule 16.
Pretrial conference.
Rule 16.1.
Procedure on pretrial motions to suppress.
Rule 16.2.
Withdrawal of jury trial request or waiver of jury trial.
Rule 16.3.
Dismissals of prosecution.
Secs. 5-183—5-210. Reserved.
Division 5.
Trial
Rule 17.1.
Jury or nonjury trial.
Rule 17.2.
Challenges.
Rule 17.3.
Procedure for selecting the trial jury.
Rule 17.4.
Preparation of jurors.
Rule 18.
Trial proceedings.
Rule 18.1.
Exclusion of witnesses and public.
Rule 18.2.
Presence of defendant.
Rule 19.
Directed verdict.
Rule 20.1.
Requests for instructions and forms of verdict.
Rule 20.2.
Rulings on instructions and forms of verdict.
Rule 21.1.
Retirement of jurors.
Rule 21.2.
Materials used during deliberation.
Rule 21.3.
Further review of evidence and additional instructions.
Rule 21.4.
Assisting jurors at impasse.
Rule 21.5.
Discharge.
Rule 22.1.
Jury verdict.
Rule 22.2.
Types of verdicts.
Rule 22.3.
Conviction of necessarily included offenses (reserved).
Rule 22.4.
Polling of the jury.
Secs. 5-211—5-246. Reserved.
Division 6.
Rule 23.
Rule 24.1.
Rule 24.2.
Rule 25.
Rule 26.1.
Rule 26.2.
Post-Trial Proceedings and Sentencing
Motions for new trial.
Motion to vacate sentence.
Motion to modify or correct sentence.
Sealed proceedings and records.
Definitions for post-verdict proceedings.
Time for rendering judgment.
CD5:2
RULES OF THE COMMUNITY COURT
Rule 26.3.
Rule 26.4.
Rule 26.5.
Rule 26.6.
Rule 26.7.
Date of sentencing; extension.
Presentence report.
Contents of the presentence report.
Request for aggravation or mitigation hearing.
Notice of objections; special duty of the prosecutor; corrections to
presentence report.
Rule 26.8.
Presence of the defendant.
Rule 26.9.
Pronouncement of judgment and sentence.
Rule 26.10.
Duty of the court after pronouncing sentence.
Rule 26.11.
Fines and restitution.
Rule 26.12.
Resentencing.
Rule 26.13.
Entry of judgment and sentence.
Secs. 5-247—5-289. Reserved.
Division 7.
Probation and Parole
Rule 27.1.
Rule 27.2.
Rule 27.3.
Manner of imposing probation and parole.
Modification and clarification of conditions and regulations.
Early termination of probation and no early termination of
parole.
Rule 27.4.
Order and notice of discharge.
Rule 27.5.
Initiation of revocation proceedings; securing the probationer's
presence; notice.
Rule 27.6.
Initial appearance after arrest.
Rule 27.7.
Revocation of probation.
Rule 27.8.
Admissions by the probationer.
Rule 27.9.
Revocation of parole.
Rule 27.10.
Rejection of probation.
Secs. 5-290—5-316. Reserved.
Division 8.
Powers of the Court
Rule 29.1.
Rule 29.2.
Rule 29.3.
Rule 29.4.
Subpoenas.
Contempt of court.
Procedure for contempt committed in the presence of the court.
Disposition and notice of contempt committed outside the
presence of the court.
Rule 29.5.
Punishment for contempt and disqualification of judge.
Secs. 5-317—5-345. Reserved.
Division 9.
Deferred Prosecution and Sentence
Rule 30.1.
Deferred prosecution and deferred sentencing.
Rule 30.2.
Resumption of prosecution and sentence.
Rule 30.3.
Dismissal of prosecution.
Secs. 5-346—5-374. Reserved.
Division 10.
Motions and Time Computations
Rule 31.1.
Motions.
Rule 31.2.
Hearing; oral arguments.
Rule 31.3.
Requests to be in writing.
Rule 31.4.
Service and filing.
Rule 31.5.
Time.
Sec. 5-375.
Forms.
Secs. 5-376—5-433. Reserved.
Article V.
Rule 1.
Supp. No. 6
Rules of Civil Appellate Procedure
Scope of rule.
CD5:3
COMMUNITY CODE OF ORDINANCES
Rule 1.1.
Definitions.
Rule 2.
Parties permitted to appeal.
Rule 2.2.
Notice.
Rule 3.
Time for filing notice of appeal and consolidation of appeals.
Rule 4.
Form and contents of the notice of appeal.
Rule 5.
Responsibility of the parties; transcripts.
Rule 6.
Record on appeal.
Rule 7.
Transmission of the record.
Rule 8.
Filing and service.
Rule 9.
Time computation and extension of time.
Rule 10.
Motions.
Rule 11.
Motion to dismiss.
Rule 12.
Briefs.
Rule 12.1.
Briefs on cross-appeals.
Rule 12.2.
Accelerated appeals.
Rule 13.
Oral arguments.
Rule 14.
Stay of appeal.
Rule 15.
Disposition and orders.
Rule 16.
Stays and injunctive relief.
Rule 17.
Certified questions.
Rule 18.
Composition of justices.
Rule 19.
Opinions and disposition.
Rule 20.
Entry of judgment.
Rule 21.
Petitions for panel rehearing.
Rule 22.
Issuance of mandate.
Rule 23.
Substitution of parties.
Rule 24.
Withdrawal of counsel.
Rule 25.
Amicus curiae.
Rule 26.
Extraordinary writs.
Rule 27.
Writ of habeas corpus.
Rule 28.
Appeal as indigent.
Rule 29.
Interest on civil judgments.
Rule 30.
Prevailing party may be entitled to costs.
Rule 31.
Sealed proceedings and records.
Rule 32.
Suspension of rules.
Secs. 5-434—5-465. Reserved.
Article VI.
Rule 1.
Rule 1.1.
Rule 2.
Rule 2.1.
Rule 3.
Rule 4.
Rule 5.
Rule 6.
Rule 7.
Rule 8.
Rule 9.
Rule 10.
Rule 11.
Rule 12.
Rule 12.1.
Rule 13.
Rule 14.
Rule 15.
Rule 16.
Rule 17.
Supp. No. 6
Rules of Criminal Appellate Procedure
Scope of rule.
Definitions.
Appeal rights in criminal cases.
Appeal rights in juvenile cases.
Time for filing notice of appeal, special action, and consolidation
of appeals.
Form and contents of the notice of appeal.
Responsibility of the parties.
Record on appeal.
Transmission of the record.
Filing and service.
Time computation and extension of time.
Motions.
Motion to dismiss.
Briefs.
Briefs on cross-appeals.
Oral arguments.
Stay of appeal.
Disposition and orders.
Stays.
Certified questions.
CD5:4
RULES OF THE COMMUNITY COURT
Rule 18.
Composition of justices.
Rule 19.
Opinions and disposition.
Rule 20.
Entry of judgment.
Rule 21.
Petitions for panel rehearing.
Rule 22.
Issuance of mandate.
Rule 23.
Death of party.
Rule 24.
Withdrawal of counsel.
Rule 25.
Amicus curiae.
Rule 26.
Sealed proceedings and records.
Rule 27.
Suspension of rules.
Sec. 5-466.
Notice of appeal form.
Secs. 5-467—5-495. Reserved.
Article VII.
Community Rules of Evidence
Division 1.
General Provisions
Rule 101.
Title; definitions.
Rule 102.
Purpose and applicability of the rules.
Rule 103.
Rulings on evidence.
Rule 104.
Preliminary questions.
Rule 105.
Limiting evidence.
Rule 106.
Remainder of or related writings or recorded statements.
Secs. 5-496—5-520. Reserved.
Division 2.
Judicial Notice
Rule 201.
Judicial notice of adjudicative facts.
Secs. 5-521—5-555. Reserved.
Division 3.
Presumptions In Civil Cases
Rule 301.
Presumptions in civil cases generally.
Secs. 5-556—5-585. Reserved.
Division 4.
Relevance and Its Limits
Rule 401.
Test for relevant evidence.
Rule 402.
General admissibility of relevant evidence.
Rule 403.
Exclusion of relevant evidence for special circumstances.
Rule 404.
Character evidence; crimes or other acts.
Rule 405.
Methods of proving character.
Rule 406.
Habit; routine practice.
Rule 407.
Subsequent remedial measures.
Rule 408.
Compromise offers and negotiations.
Rule 409.
Offers to pay medical and similar expenses.
Rule 410.
Pleas, plea discussions and related statements.
Rule 411.
Liability insurance.
Rule 412.
Sex-offense cases: the victim's sexual behavior.
Rule 413.
Character evidence in sexual misconduct cases.
Secs. 5-586—5-613. Reserved.
Division 5.
Rule 501.
Rule 502.
Rule 503.
Rule 504.
Rule 505.
Supp. No. 6
Privileges
Privilege in general.
Counsel-client privilege and work product; limitations on waiver.
Physician-patient privilege.
Religious or spiritual communications.
Marital privilege.
CD5:5
COMMUNITY CODE OF ORDINANCES
Secs. 5-614—5-630. Reserved.
Division 6.
Witnesses
Rule 601.
Competency to testify in general.
Rule 602.
Need for personal knowledge.
Rule 603.
Oath or affirmation to testify truthfully.
Rule 604.
Interpreter.
Rule 605.
Judge's competency as a witness.
Rule 606.
Juror's competency as a witness.
Rule 607.
Who may impeach a witness.
Rule 608.
A witness' character for truthfulness or untruthfulness.
Rule 609.
Impeachment by evidence of a criminal conviction.
Rule 610.
Religious beliefs or opinions.
Rule 611.
Mode and order of examining witnesses and presenting evidence.
Rule 612.
Writing used to refresh a witness' memory.
Rule 613.
Witness' prior statements.
Rule 614.
Court's calling or examining a witness.
Rule 615.
Excluding witnesses.
Secs. 5-631—5-664. Reserved.
Division 7.
Opinions and Expert Testimony
Rule 701.
Opinion testimony by lay witnesses.
Rule 702.
Testimony by expert witnesses.
Rule 703.
Bases of an expert's opinion testimony.
Rule 704.
Opinion on an ultimate issue.
Rule 705.
Disclosing the facts or data underlying an expert's opinion.
Rule 706.
Court appointed expert witnesses.
Secs. 5-665—5-693. Reserved.
Division 8.
Hearsay
Rule 801.
Definitions that apply to this division within this Community
Code of Ordinances; exclusions from hearsay.
Rule 802.
The rule against hearsay.
Rule 803.
Exceptions to the rule against hearsay; regardless of whether
the declarant is available as a witness.
Rule 804.
Exceptions to the rule against hearsay; when the declarant is
unavailable as a witness.
Rule 805.
Hearsay within hearsay.
Rule 806.
Attacking and supporting the declarant's credibility.
Rule 807.
Residual exception.
Secs. 5-694—5-725. Reserved.
Division 9.
Authentication and Identification
Rule 901.
Authenticating or identifying evidence.
Rule 902.
Evidence that is self-authenticating.
Rule 903.
Subscribing witness' testimony.
Secs. 5-726—5-750. Reserved.
Division 10.
Rule 1001.
Rule 1002.
Rule 1003.
Rule 1004.
Rule 1005.
Supp. No. 6
Contents of Writings, Recordings, and Photographs
Definitions that apply to this division within this Community
Code of Ordinances.
Requirement of the original.
Admissibility of duplicates.
Admissibility of other evidence of content.
Copies of public records to prove content.
CD5:6
RULES OF THE COMMUNITY COURT
Rule 1006.
Rule 1007.
Rule 1008.
Summaries to prove content.
Testimony or statement of a party to prove content.
Functions of the court and jury.
Article VIII.
Division 1.
I.
II.
III.
IV.
V.
VI.
VII.
VIII.
IX.
X.
XI.
Regulation of the Practice of Law
Rules and Application for Admission to Practice
Licensing requirement.
Establishment of admissions committee.
Admissions examination.
Character and fitness application.
Professionalism course.
Continuing legal education.
Ongoing duty to report.
Pro hac vice admission.
Oath of office.
Practice pending admission.
Certified limited practice students.
Division 2.
Rules of Professional Conduct
Preamble.
Subdivision I.
Rule 1.1.
Rule 1.2.
Client-Advocate Relationship
Rule 1.12.
Rule 1.13.
Rule 1.14.
Rule 1.15.
Rule 1.16.
Rule 1.17.
Rule 1.18.
Competence.
Scope of representation and allocation of authority between
client and advocate.
Diligence.
Communication.
Fees.
Confidentiality of information.
Conflict of interest: Current clients: General.
Conflict of interest: Current clients: Specific rules.
Duties to former clients.
Imputation of conflicts of interest: General rule for advocate
with a firm.
Special conflicts of interest for former and current government
officers and employees.
Former judge, arbitrator, mediator or other third-party neutral.
Organization as client.
Client with diminished capacity.
Safekeeping property.
Declining or terminating representation.
Sale of law practice.
Duties to prospective client.
Rule 2.1.
Rule 2.2.
Rule 2.3.
Rule 2.4.
Advisor.
Reserved.
Evaluation for use by third persons.
Advocate serving as third-party neutral.
Rule 1.3.
Rule 1.4.
Rule 1.5.
Rule 1.6
Rule 1.7.
Rule 1.8.
Rule 1.9.
Rule 1.10.
Rule 1.11.
Subdivision II.
Counselor
Subdivision III.
Rule 3.1.
Rule 3.2.
Rule 3.3.
Rule 3.4.
Supp. No. 7
Advocate
Meritorious claims and contentions.
Expediting litigation.
Candor toward the tribunal.
Fairness to opposing party and counsel.
CD5:7
COMMUNITY CODE OF ORDINANCES
Rule 3.5.
Rule 3.6.
Rule 3.7.
Rule 3.8.
Rule 3.9.
Rule 3.10.
Impartiality and decorum of the tribunal.
Trial publicity.
Advocate as witness.
Special responsibilities of a prosecutor.
Advocate in other proceedings.
Credible and material exculpatory information about a convicted
person.
Subdivision IV.
Rule 4.1.
Rule 4.2.
Rule 4.3.
Rule 4.4.
Truthfulness in statements to others.
Communication with person represented by counsel.
Dealing with unrepresented person.
Respect for rights of third persons.
Subdivision V.
Rule 5.1.
Rule 5.2.
Rule 5.3.
Rule 5.4.
Rule 5.5.
Rule 5.6.
Rule 5.7.
Rule 5.8.
Transactions with Persons Other Than Clients
Srpmic Legal Departments, Advocate Firms, and Associates
Responsibilities of partners, managers, and supervisory advocates.
Responsibilities of a subordinate advocate.
Responsibilities regarding non-advocate assistants.
Professional independence of an advocate.
Unauthorized practice; multijurisdictional practice.
Restrictions on right to practice.
Responsibilities regarding law-related services.
Accepting appointments.
Subdivision VI.
Rule 6.1.
Rule 6.2.
Rule 6.3.
Membership in legal services organization.
Law reform activities affecting client interests.
Nonprofit and court-sponsored limited legal service programs.
Subdivision VII.
Rule 7.1.
Rule 7.2.
Rule 7.3.
Rule 7.4.
Rule 7.5.
Rule 7.6.
Maintaining the Integrity of the Profession
Admission and disciplinary actions.
Judicial and legal officials.
Reporting professional misconduct.
Misconduct.
Disciplinary authority; choice of law.
Division 3.
Part A.
Part B.
Part C.
Information about Legal Services
Communications concerning an advocate's services.
Advertising.
Solicitation of clients.
Communication of fields of practice and specialization.
Firm names and letterheads.
Political contributions to obtain legal engagements or appointments by judges.
Subdivision VIII.
Rule 8.1.
Rule 8.2.
Rule 8.3.
Rule 8.4.
Rule 8.5.
Public Service
Rules of Judicial Conduct
Preamble.
Scope.
Terminology.
Application.
Applicability of this Code.
Pro tempore judge.
Time for compliance by new judges.
Canon 1
Rule 1.1.
Supp. No. 7
Compliance with the law.
CD5:8
RULES OF THE COMMUNITY COURT
Rule 1.2.
Rule 1.3.
Promoting confidence in the judiciary.
Avoiding abuse of the prestige of judicial office.
Canon 2
Rule 2.1.
Rule 2.2.
Rule 2.3.
Rule 2.4.
Rule 2.5.
Rule 2.6.
Rule 2.7.
Rule 2.8.
Rule 2.9.
Rule 2.10.
Rule 2.11.
Rule 2.12.
Rule 2.13.
Rule 2.14.
Rule 2.15.
Rule 2.16.
Giving precedence to judicial duties.
Impartiality and fairness.
Bias, prejudice, and harassment.
External influences on judicial conduct.
Competence, diligence, and cooperation.
Ensuring the right to be heard.
Responsibility to decide.
Decorum, demeanor, and communication with jurors.
Ex parte communication.
Judicial statements.
Disqualification.
Supervisory duties.
Administrative appointments.
Disability and impairment.
Responding to judicial and advocate misconduct.
Cooperation with disciplinary authorities.
Canon 3
Rule 3.1.
Rule 3.2.
Rule 3.3.
Rule 3.4.
Rule 3.5.
Rule 3.6.
Rule 3.7.
Rule 3.8.
Rule 3.9.
Rule 3.10.
Rule 3.11.
Rule 3.12.
Rule 3.13.
Rule 3.14.
Rule 3.15.
Rule 3.16.
Supp. No. 7
Extrajudicial activities in general.
Appearances before governmental bodies and consultation with
government officials.
Acting as a character witness.
Appointments to governmental positions.
Use of nonpublic information.
Affiliation with discriminatory organizations.
Participation in educational, religious, charitable, fraternal, or
civic organizations and activities.
Appointments to fiduciary positions.
Service as arbitrator or mediator.
Practice of law.
Financial, business, or remunerative activities.
Compensation for extrajudicial activities.
Acceptance and reporting of gifts, loans, bequests, benefits, or
other things of value.
Reimbursement of expenses and waivers of fees or charges.
Financial reporting requirements.
Conducting weddings.
CD5:8.1
RULES OF THE COMMUNITY COURT
(b) Jury trials in traffic violation cases. There
shall be no jury trials in cases where a person is
charged with a traffic violation when:
ARTICLE I. IN GENERAL
Sec. 5-1. Application of law.
(a) In all actions before the courts of the
Community, the law of the Community shall be
controlling. The law of the Community consists
of this Community Code of Ordinances and
common law of the Community. The common law
of the Community is composed of both the customary law of the Community and the rules of law
and decisions of the Community court.
(b) In cases where this Community Code of
Ordinances is silent as to an issue of procedural
law, the court may, in its discretion, use procedural
rules or laws of the United States to fashion a
remedy.
(1)
The exclusive penalty is a fine; or
(2)
The court determines after a request for
jury trial is made that no penalty of
imprisonment shall be imposed in the
event the defendant is found guilty.
(c) Right to jury trial. In cases where the
possibility of imprisonment exists, the defendant
shall have the right to elect a trial by jury upon
request.
(d) Jury procedure.
(1)
(c) In determining issues of law, the Community court may use as a resource cases decided
by the courts of the following:
(1)
Indian tribes;
(2)
The United States; and
(3)
The several states and territories of the
United States.
(Code 1981, § 5-1; Code 2012, § 5-1; Ord. No.
SRO-164-93, § 1, 2-3-1993; Ord. No. SRO-4022012, § 5-1, 5-30-2012)
Jury list to be prepared; cases involving
special tribal criminal jurisdiction pursuant to chapter 6, article 1, section 6-0(c)
and (d) and chapter 10, article VII, section 10-251(b) and (c) of the Salt River
Pima-Maricopa Indian Community Code
of Ordinances. Within 30 days prior to
January 1 of each calendar year, the
Community Council shall cause a jury
list to be prepared consisting of the following, which shall be presented to the
Community court when it is completed:
a.
All of the members of the Salt River
Pima-Maricopa Indian Community
over the age of 18 years who are not
judges of the Community court,
employees of the Community court,
or employees of the Community
police department;
b.
All employees of the Salt River PimaMaricopa Indian Community government (excluding enterprises) over
the age of 18 years who are not
Community members and who are
not judges of the Community court,
employees of the Community court,
or employees of the Community
police department.
Secs. 5-2—5-20. Reserved.
ARTICLE II. CIVIL PROCEDURE*
Secs. 5-21—5-34. Reserved.
Sec. 5-35. Juries.
(a) Jury trials in civil cases. Jury trials may
be ordered by the court in civil cases only upon
the stipulation in writing of all of the plaintiffs
and defendants. The court shall have the discretion in cases where such a stipulation is filed
with it to either order a jury trial or not. The
court's order shall not be subject to appeal.
*Editor’s note—The Community Court's Rules of Civil
Procedure are publically available on the Community Court's
internet site. The Court Rules Committee is currently revising the Rules of Civil Procedure and when enacted these
amended rules will be codified in this article.
Supp. No. 6
§ 5-35
CD5:9
(2)
Jury list to be prepared; all other criminal
cases and civil cases. Within 30 days
prior to January 1 of each calendar year,
the Community Council shall cause a
jury list to be prepared consisting of all of
the members of the Salt River Pima-
§ 5-35
COMMUNITY CODE OF ORDINANCES
Maricopa Indian Community over the
age of 18 years who are not judges of the
Community court, employees of the Community court or employees of the Community police department. This list shall
be presented to the Community court
when it is completed.
(3)
How constituted. A jury shall consist of
six individuals drawn from the jury list.
The drawing will be by some disinterested
person or persons appointed by the judge.
A minimum of ten names shall be drawn
from which the selections will be made.
Any party to the case may challenge not
more than two members of the panel so
chosen, except for cause.
(4)
Cause for excusing a prospective juror.
The judge may excuse a prospective juror
only if the prospective juror states that
any circumstances of relationship or kinship with any of the parties will cause
that juror to be biased as to any of the
parties, or that a prospective juror's
knowledge of facts in regard to the case
to be presented will predispose the
prospective juror to make a decision
without regard to what is presented in
the case, and the judge shall excuse a
prospective juror in such circumstances
only if the judge is satisfied that the
juror's statement is true and correct.
(5)
(6)
(7)
Conduct of voir dire. Only the judge shall
question the prospective jurors in regard
to their qualifications to serve on a jury.
The parties or their attorneys or advocates
may submit questions to the judge for
such questioning and the judge may use
such questions.
Verdict. The judge shall instruct the jury
in the law governing the case; and the
jury shall bring a verdict for the complainant or the defendant. The judge shall
render judgment in accordance with the
verdict and existing laws. In civil cases,
a majority of four of the six jurors is
necessary for a verdict.
Jurors ' fees. All persons who are
subpoenaed to serve as members of a
Supp. No. 6
panel from which a jury is to be chosen
shall be entitled to compensation for
each day or part thereof such services are
required in court. The amount of such
compensation shall be determined from
time to time by resolution of the Salt
River Pima-Maricopa Indian Community
Council. Such compensation shall be
uniform for all members of any such
panel.
(Code 1981, § 5-25; Code 2012, § 5-25; Ord. No.
SRO-161-93, § 1, 1-27-1993; Ord. No. SRO-3972012, 6-1-2012; Ord. No. SRO-402-2012, § 5-25,
5-30-2012; Ord. No. SRO-540-2022, 2-23-2022,
eff. 5-1-2022; Ord. No. SRO-568-2023, 9-202023)
Secs. 5-36—5-58. Reserved.
ARTICLE III. RECEIVERS
Sec. 5-59. Application for appointment.
Application for the appointment of a receiver
shall be in the form of a verified petition filed in
the Community court. The petition shall set
forth the facts supporting the application. The
petition shall be accompanied with affidavits
concerning the debts of the entity that is the
subject of the receivership.
(Code 1981, § 5-50; Code 2012, § 5-50; Ord. No.
SRO-98-85, 4-24-1985; Ord. No. SRO-402-2012,
§ 5-50, 5-30-2012)
Sec. 5-60. Hearing on application.
The Community court shall hold a public
hearing within 30 days of the filing of the
petition. Notice of the hearing shall be given to
all interested parties by registered mail or in
such other manner as the court may by order
provide.
(Code 1981, § 5-51; Code 2012, § 5-51; Ord. No.
SRO-98-85, 4-24-1985; Ord. No. SRO-402-2012,
§ 5-51, 5-30-2012)
Sec. 5-61. Findings of fact.
The judge of the Community presiding at the
hearing shall make findings of fact concerning
the eligibility of the receiver, the scope of the
CD5:10
RULES OF THE COMMUNITY COURT
receiver's duties, any bond required to be posted
by the receiver, compensation to the receiver and
requirements concerning periodic accountings to
the Community court.
(Code 1981, § 5-52; Code 2012, § 5-52; Ord. No.
SRO-98-85, 4-24-1985; Ord. No. SRO-402-2012,
§ 5-52, 5-30-2012)
Sec. 5-62. Qualifications of receiver.
(a) The Community court shall not appoint as
a receiver a member of the immediate family of
any owner of the subject matter of the receivership, any employee or officer of the Community,
or any person otherwise interested in the subject
matter of the receivership except under the
provisions of subsection (b) of this section.
(b) After such notice as the Community court
shall find is adequate, and if no party shall have
objected, the court may appoint a person interested
in the subject matter of the receivership if the
court finds the subject matter of the receivership
has been abandoned or that the duties of the
receiver will consist chiefly of physical preservation of the property (including crops growing
thereon), collection of rents or the maturing,
harvesting and disposition of crops then growing
thereon.
(Code 1981, § 5-53; Code 2012, § 5-53; Ord. No.
SRO-98-85, 4-24-1985; Ord. No. SRO-402-2012,
§ 5-53, 5-30-2012)
Sec. 5-64. Removal or suspension of
receiver; termination of
receivership.
(a) Dismissal of action. An action wherein a
receiver has been appointed shall not be dismissed
except by order of the Community court.
(b) Termination of receivership. A receivership may be terminated upon motion served with
at least ten days notice upon all parties who
have appeared in the proceedings. In the notice
of hearing, the Community court shall require
that a final account and report be filed and
served upon all parties served with the notice.
The final account and report shall include an
audit of the books and records of receivership.
An opportunity for written objections to said
account shall be provided. In the termination
proceedings the court shall take such evidence as
is appropriate and shall make such order as is
just concerning its termination, including all
necessary orders in regard to the fees and costs
of the receivership.
(c) Suspension; removal of receiver. The Community court may at any time suspend a receiver
and may, upon notice, remove a receiver and
appoint another.
(Code 1981, § 5-55; Code 2012, § 5-55; Ord. No.
SRO-98-85, 4-24-1985; Ord. No. SRO-402-2012,
§ 5-55, 5-30-2012)
Secs. 5-65—5-90. Reserved.
Sec. 5-63. Bond.
Before entering upon his or her duties, the
receiver, if the Community court so requires,
shall file a bond to be approved by the Community court. The bond shall be in the amount
fixed by the order of appointment and conditioned
that the receiver shall faithfully discharge his or
her duties and obey orders of the Community
court. The receiver shall make an oath to the
same effect, which oath shall be endorsed on the
bond. The clerk of the Community court shall
thereupon deliver to the receiver a certificate of
his or her appointment. The certificate shall
contain a description of the property involved in
the action.
(Code 1981, § 5-54; Code 2012, § 5-54; Ord. No.
SRO-98-85, 4-24-1985; Ord. No. SRO-402-2012,
§ 5-54, 5-30-2012)
Supp. No. 6
Art. IV, Rule 2
ARTICLE IV. RULES OF CRIMINAL
PROCEDURE
DIVISION 1. SCOPE, PURPOSE AND
CONSTRUCTION
Rule 1. Scope.
These rules govern the procedure in all criminal
proceedings in the Community court. These rules
shall be known as the Salt River Pima-Maricopa
Indian Community Rules of Criminal Procedure
(SR-RCP).
(Code 2012, § 5-31(rule 1); Ord. No. SRO-3952012, § 5-31(rule 1), 6-1-2012; Ord. No. SRO-4022012, § 5-31(rule 1), 5-30-2012)
CD5:11
Rule 2
COMMUNITY CODE OF ORDINANCES
Rule 2. Interpretation.
These rules shall be interpreted to provide for
the just determination of every criminal proceeding, to secure simplicity in procedure and fairness in administration, and to eliminate delay
and unjustifiable expense.
(Code 2012, § 5-31(rule 2); Ord. No. SRO-3952012, § 5-31(rule 2), 6-1-2012; Ord. No. SRO-4022012, § 5-31(rule 2), 5-30-2012)
Rule 2.1. Definitions.
The following words, terms and phrases, when
used in this article, shall have the meanings
ascribed to them in this section, except where
the context clearly indicates a different meaning:
Advocate means a person who is authorized to
practice law before the Community court and
who is not a licensed attorney.
Arrest means the person has been taken into
custody by a police officer.
Attorney means a person who meets the following criteria: the person must be a graduate of
a law school, licensed to practice law in any state
of the United States, and has been authorized to
practice law by the Community court.
Code means this Community Code of
Ordinances of the Salt River Pima-Maricopa
Indian Community.
Community or SRPMIC means Salt River
Pima-Maricopa Indian Community.
Court means the Salt River Pima-Maricopa
Indian Community Court as defined in this
Community Code of Ordinances.
belief that a criminal offense was committed or is
being committed by the person charged with or
arrested for the offense.
Prosecutor means a person or persons
authorized by the Community under article II,
chapter 4.5 to represent the Community in
criminal cases.
Voluntary means a person acts of own free will
without coercion or force.
Working or business day means any day except
weekends and designated Community holidays.
(Code 2012, § 5-31(rule 2.1); Ord. No. SRO-3952012, § 5-31(rule 2.1), 6-1-2012; Ord. No. SRO402-2012, § 5-31(rule 2.1), 5-30-2012)
Rule 2.2. Notice.
All parties, attorneys, and advocates are
required to ensure that the court has current
contact information for purposes of providing
notice of hearings, filing deadlines, and other
scheduling issues. Notice will be deemed sufficient under this chapter if provided to a party
or their attorney or advocate of record through
any means reasonably calculated to provide actual
notice including personal service, first class mail,
or through an electronic mail account on file
with the court unless another rule or specific
court order requires another form of notice.
(Ord. No. SRO-526-2021, 10-4-2020)
Secs. 5-91—5-120. Reserved.
DIVISION 2. PRELIMINARY PROCEEDINGS
Counsel has the same meaning as the term
"advocate" or "attorney."
Rule 3. Commencement of criminal
proceeding.
Incompetent means a person is unable to
understand the criminal proceedings against the
person or a person is unable to assist in the
person's own defense in criminal prosecution.
Criminal actions are commenced by filing a
complaint with the court or by an arrest of a
person without a warrant as set forth in Rule
3.1. Traffic offenses with criminal sanctions may
be commenced by a traffic citation, an arrest of a
person under Rule 3.1, or by a complaint.
(Code 2012, § 5-31(rule 3); Ord. No. SRO-3952012, § 5-31(rule 3), 6-1-2012; Ord. No. SRO-4022012, § 5-31(rule 3), 5-30-2012)
Mental health professional means a licensed
psychiatrist or psychologist.
Probable cause means an existence of
circumstances that would lead to a reasonable
Supp. No. 6
CD5:12
RULES OF THE COMMUNITY COURT
Rule 3.1. Arrest without a warrant.
If a person is arrested without a warrant, the
arresting officer, without unreasonable delay,
shall prepare the probable cause statement,
which shall be delivered either physically or by
electronic means to the court by the arresting
officer or the officer's agent without delay.
(Code 2012, § 5-31(rule 3.1); Ord. No. SRO-3952012, § 5-31(rule 3.1), 6-1-2012; Ord. No. SRO402-2012, § 5-31(rule 3.1), 5-30-2012)
(a) Time limits and purpose. An arrested person
shall be brought before a judge no later than 48
hours after arrest for the person's initial appearance. At the arrested person's initial appearance, the court shall:
(1)
Obtain the arrested person's true name,
physical and mailing addresses;
(2)
Advise the arrested person of the nature
of the charge(s);
(3)
Advise the arrested person of the right to
remain silent;
(4)
Advise the arrested person of the right to
counsel;
(5)
Determine whether probable cause exists
to believe a criminal and/or a traffic
offense has been committed in violation
of this Community Code of Ordinances.
If no probable cause is found, the judge
shall order the release of the arrested
person for the arrested offense.
(b) Finding of probable cause. If probable
cause is found by the judge, the judge shall:
Determine the conditions of release pursuant to Rule 8;
(2)
Advise the defendant of the next court
appearance date;
(3)
Provide written notice to the defendant
of his or her rights pursuant to the
Indian Civil Rights Act (25 USC §§ 1301-
Supp. No. 6
1304), as amended by the Violence Against
Women Act Reauthorization Act of 2022.
(Code 2012, § 5-31(rule 3.2); Ord. No. SRO-3952012, § 5-31(rule 3.2), 6-1-2012; Ord. No. SRO402-2012, § 5-31(rule 3.2), 5-30-2012; Ord. No.
SRO-569-2023, 9-20-2023)
Rules committee comment note to subsection (a) of
this rule. Although the Rule allows for the defendant's
initial appearance to occur within 48 hours of arrest, the
court should make best efforts to schedule the initial appearance within 24 hours of arrest.
Rule 3.3. Complaint against an arrested
person; form of complaint;
prosecution of complaint.
Rule 3.2. Initial appearance of an
arrested person.
(1)
Art. IV, Rule 4
(a) Complaint against an arrested person. If a
person was arrested without a warrant, a prosecutor shall file a complaint bearing a prosecutor's
signature within 72 hours of the person's arrest.
If a complaint that bears the signature of a
prosecutor is not filed within 72 hours of the
person's warrantless arrest, the person shall be
released immediately. If a prosecutor's office
files a notice of declination of prosecution, the
defendant shall be released from custody for the
arrested offense.
(b) Contents of criminal complaint. The
complaint shall be in writing and contain a
statement of the essential facts constituting the
offense charged, the name of the defendant, the
approximate date and time of the offense charged,
the place where the offense occurred, and a
citation of this Community Code of Ordinances
provision under which the offense is charged.
The complaint shall bear the original signature
of a duly authorized prosecutor. Technical errors
in the complaint that do not deprive the defendant
of fair notice of the offenses charged shall not be
grounds for dismissal and the complaint may be
amended for technical errors at the discretion of
the court.
(c) Prosecution of complaint. The Community
shall prosecute all such complaints through an
authorized prosecutor, including, but not limited
to a special prosecutor.
(Code 2012, § 5-31(rule 3.3); Ord. No. SRO-3952012, § 5-31(rule 3.3), 6-1-2012; Ord. No. SRO402-2012, § 5-31(rule 3.3), 5-30-2012)
CD5:13
Rule 4
COMMUNITY CODE OF ORDINANCES
Rule 4. Arrest warrant; presumption of
summons.
(a) Issuance. A judge may issue an arrest
warrant or summons upon request of the prosecutor, after a complaint has been filed, and the
judge determines that there is probable cause to
believe the offense has been committed and the
defendant committed the offense.
(b) Presumption of summons. There shall be a
presumption in favor of issuing a summons,
unless the court finds:
(1)
The defendant has no reliable address
within the Community at which to receive
a summons;
(2)
The defendant has confirmed active warrants in any jurisdiction;
(3)
The nature of the offense poses a threat
to the health, safety and welfare of the
victim or the Community;
(4)
The offense is related to an escape from
lawful custody or resistance of lawful
arrest;
(5)
The defendant has other criminal matters pending at the time the offense was
alleged to have occurred; or
(6)
The defendant has a history of failures to
appear that indicate defendant is unlikely
to respond to the summons.
(c) Arrest warrant procedure. An arrest warrant will be issued by the court when the judge
reasonably believes that the warrant is necessary. The arrest warrant shall be delivered to the
defendant at the time of the arrest or no later
than the initial appearance of the defendant.
When an arresting officer is not in possession of
the arrest warrant at the time of arrest, the
officer shall inform the defendant that such a
warrant has been issued, that the officer is
acting pursuant to the arrest warrant and that a
copy of the warrant will be delivered to the
defendant by his or her initial appearance.
(d) Form of warrant. A warrant must contain
the name of the defendant, information by which
the person arrested may be identified with reasonable certainty, and a description of the offenses
Supp. No. 6
charged. The warrant must be signed by a
Community judge. A warrant of arrest shall not
be invalidated, nor shall any person in custody
be discharged because the warrant contains
technical or clerical errors. The warrant may be
amended by any judge to remedy the defect.
(e) Execution of a warrant. A warrant is
executed by arresting the defendant. Upon an
arrest, the arresting officer shall notify the
defendant of the existence of the warrant and of
the offenses charged. After executing the warrant, the warrant shall be returned to the issuing court before whom the defendant is brought.
Only officers authorized under the ordinance to
make arrests or a federal police officer may
arrest a person pursuant to a Community arrest
warrant.
(f) Authority for a warrantless arrest. A Community police officer or federal law enforcement
officer may arrest a person when the officer has
probable cause.
(g) Summons. A summons shall contain the
same information as a warrant, but shall also
include the date, time and location that the
defendant is ordered to appear. If a defendant
fails to appear after having been served with a
summons, the court may issue an arrest warrant.
(Code 2012, § 5-31(rule 4); Ord. No. SRO-3952012, § 5-31(rule 4), 6-1-2012; Ord. No. SRO-4022012, § 5-31(rule 4), 5-30-2012)
Rule 4.1. Search warrants.
Any judge of the Community shall have the
authority to issue warrants for search and seizure
of the premises or property of any person, and
traits of a person including, but not limited to
blood, saliva, voice exemplar, handwriting
exemplar, and fingerprints, under the jurisdiction of Community, or under rules of comity. No
search warrant shall be issued except on probable cause, supported by a sworn affidavit, that
an offense has been committed in violation of
this Community Code of Ordinances, naming or
describing the property to be seized and the
place to be searched. Service of warrants of
search and seizure shall be made only by a
Community police officer or federal law enforce-
CD5:14
RULES OF THE COMMUNITY COURT
ment officer. If the warrant is domesticated
pursuant to rules of comity, the warrant may be
executed by the authorized agent of the issuing
jurisdiction. All warrants shall bear the signature
of a judge of the Community court.
(Code 2012, § 5-31(rule 4.1); Ord. No. SRO-3952012, § 5-31(rule 4.1), 6-1-2012; Ord. No. SRO402-2012, § 5-31(rule 4.1), 5-30-2012)
Rule 5. Arraignment.
(a) Time period. Within ten calendar days
after initial appearance under Rule 3.2, the
defendant shall appear before a judge for arraignment. If a defendant appears on a summons, the
arraignment shall proceed on the defendant's
first appearance before a judge.
(b) Arrest without a warrant. If a defendant is
arrested without a warrant, a complaint meeting
requirements of Rule 3.3, must be filed prior to
arraignment.
(c) Procedure.
(1)
The judge shall read the complaint to the
defendant in the language that the
defendant understands; and
(2)
The judge shall also advise the defendant
of the following:
charges. If the defendant refuses or
is unable to enter a plea, the court
shall enter a plea of "not guilty" on
behalf of the defendant.
(3)
A copy of the complaint shall be given to
the defendant or to defendant's counsel.
(Code 2012, § 5-31(rule 5); Ord. No. SRO-3952012, § 5-31(rule 5), 6-1-2012; Ord. No. SRO-4022012, § 5-31(rule 4.2), 5-30-2012)
Rule 5.1. Setting of trial date.
(a) If a plea is "not guilty," then the court
shall set a hearing date pursuant to Rule 7.1.
This hearing may be any of the following:
(1)
A trial date; or
(2)
A change of plea hearing date; or
(3)
A status hearing date.
(b) Setting a change of plea hearing date or a
status hearing date rather than a trial date
requires the consent of the prosecutor and the
defendant.
(c) If a change of plea hearing date or status
hearing date is set, then the period of time
between the arraignment date and the next
scheduled hearing shall be waived pursuant to
Rule 7.2.
(d) If a trial date is set, and if the defendant is
not notified of a trial date at the time of his or
her entry of a not guilty plea, then no later than
ten days after arraignment, the court shall give
notice to the defendant of a trial date.
(Code 2012, § 5-31(rule 5.1); Ord. No. SRO-3952012, § 5-31(rule 5.1), 6-1-2012; Ord. No. SRO402-2012, § 5-31(rule 5.1), 5-30-2012; Ord. No.
SRO-565-2023, 9-20-2023)
a.
The right to remain silent.
b.
The right to a trial by jury.
c.
The right to confront and cross
examine his or her accusers, to plead
not guilty, and to call witnesses.
d.
The right to have the assistance of
counsel for the charges.
e.
The right to be considered for release
pending trial or if the defendant is
released, any modification of release
conditions.
Secs. 5-121—5-149. Reserved.
The maximum sentence that could
be imposed if the defendant were to
be found guilty or plead guilty to
the charges.
Rule 6. Assistance of counsel.
f.
g.
Supp. No. 6
After the defendant is advised of his
or her rights set forth in subsection
(c)(2) of this rule, the defendant
shall be asked to enter a plea to the
Rule 6
DIVISION 3. RIGHTS OF PARTIES
(a) Right to be represented by counsel. A
defendant shall be entitled to be represented by
counsel in any criminal proceeding.
(1) If the defendant is facing incarceration of
one year or less as a sanction for each
charged offense, the judge shall cause to
be appointed counsel for the defendant.
CD5:15
Rule 6
COMMUNITY CODE OF ORDINANCES
(2)
If the defendant is facing a sentence of
imprisonment greater than one year for
a single offense, the judge shall cause to
be appointed an attorney to represent
the defendant.
(3)
If the defendant is charged with an offense
of domestic violence or violation of a
protection order arising out of chapter
10, article VII, section 10-253, the judge
shall cause to be appointed an attorney
to represent the defendant.
(4)
If the defendant is charged with an offense
enumerated in chapter 6, section 6-0(d),
the judge shall cause to be appointed an
attorney to represent the defendant.
(5)
The right to be represented shall include
the right to consult in private with counsel
or the counsel's agent as soon as feasible
after a defendant is taken into custody,
at reasonable times thereafter and sufficiently in advance of a proceeding to
allow adequate preparation thereof.
(6)
The defendant may reject an appointed
counsel and inform the court of the intention to retain counsel at own expense.
(b) Waiver of right to counsel. A defendant
may waive his or her right to counsel under
subsection (a) of this section, in open court, after
the court has ascertained that he or she knowingly, intelligently and voluntarily desires to
forego counsel. A defendant may withdraw a
waiver of his or her right to counsel at any time.
A subsequent retention of counsel shall not
entitle the defendant to repeat any previous
proceedings. If there is a question of a defendant's
competency, defendant shall have appointed
counsel until the defendant has been found to be
competent.
(c) Unreasonable delay in retaining counsel.
If a defendant appears without counsel at any
proceeding after having been given a reasonable
opportunity to retain counsel, the court may
proceed with the matter, with or without securing a waiver of counsel under subsection (b) of
this section.
Supp. No. 6
(d) Notice of appearance. At his or her first
appearance on behalf of a defendant, privately
retained counsel for the defendant shall file a
notice of appearance with the court. No counsel
shall make an appearance without first being
authorized to practice within the Community
courts. With the court's permission, a counsel
who has not yet been authorized to practice in
the Community court, may make a limited appearance on behalf of the defendant upon submission
of an application. The counsel shall inform the
clerk of the court and the office of the prosecutor
or its designee, of all contact information including, but not limited to, mailing address, e-mail
address, telephone number and facsimile number.
(e) Duty of continuing representation. The
counsel representing the defendant at any
proceeding shall continue to represent the
defendant in all further proceedings in the court,
including filing the notice of appeal unless the
court permits the counsel to withdraw. The
counsel's duty to represent the defendant will
continue until either a notice of appeal is filed or
the time to file the notice of appeal has expired.
(Code 2012, § 5-31(rule 6); Ord. No. SRO-3952012, § 5-31(rule 6), 6-1-2012; Ord. No. SRO-4022012, § 5-31(rule 6), 5-30-2012; Ord. No. SRO541-2022, 2-23-2022, eff. 5-1-2022; Ord. No.
SRO-569-2023, 9-20-2023)
Rule 6.1. Appointment of counsel for
indigent defendant (reserved).
The court should appoint counsel for the
defendant where defendant faces incarceration
as a potential punishment upon finding of guilt
for the charged offense if a defendant is unable
to obtain counsel at his or her own expense.
Before appointing counsel, the court should first
determine that the defendant is indigent. The
defendant shall be examined under oath regarding defendant's financial resources by the court.
The court may order the defendant to reimburse
the Community for the whole or partial cost of
counsel as a condition of appointment of counsel.
The court shall appoint an attorney to represent
the defendant if the defendant is charged with
an offense that carries a potential sentence of
CD5:16
RULES OF THE COMMUNITY COURT
imprisonment exceeding one year upon a conviction for a single offense. In all other cases, the
court may appoint an advocate or an attorney.
(Code 2012, § 5-31(rule 6.1); Ord. No. SRO-3952012, § 5-31(rule 6.1), 6-1-2012; Ord. No. SRO402-2012, § 5-31(rule 6.1), 5-30-2012)
Rule 7. Right to trial by jury.
(a) Demand for jury trial. If a defendant is
charged with an offense where the maximum
sentence of imprisonment after a conviction for
each charged offense carries a sentence of
imprisonment not exceeding six months, the
defendant may demand a jury trial. The defendant
shall demand the jury trial in writing at least 30
days prior to a trial date or another date set by
the court. If a demand is not made within the
time limits set forth in this rule, the right to jury
trial is waived. For good cause, the court may
permit the defendant to request a jury trial after
the deadline for demand for jury trial has elapsed.
(b) Right to jury trial. If a defendant is charged
with an offense where the maximum sentence of
imprisonment is greater than six months for a
conviction for each charged offense, defendant
shall be entitled to a jury trial. If a defendant is
charged with more than one offense in the
complaint and the maximum sentence of imprisonment is greater than six months for a conviction
for any of the charged offense in the same
complaint, the defendant shall be entitled to a
jury trial without a demand. Defendant may
waive the right to a jury trial by submitting a
written request.
Rule 7.1. Speedy trial rights.
(a) All defendants. Every person against whom
a complaint is filed shall be tried within 150 days
of the arraignment except for those excluded
periods set forth in Rule 7.2.
(b) Defendants in custody. A defendant who
has been ordered detained shall be tried within
120 days from the date of defendant's arraignment for the offenses that was the basis for the
order of detention.
(c) Defendants released from custody. Every
person released from custody under Rule 8, shall
be tried within 150 days from arraignment.
(d) New trial. A trial ordered after a mistrial,
upon a motion for new trial, or reversed on
appeal shall commence within 60 days of the
order or mandate.
(e) Extension of time limits. These time limits
may be extended by Rule 7.2.
(Code 2012, § 5-31(rule 7.1); Ord. No. SRO-3952012, § 5-31(rule 7.1), 6-1-2012; Ord. No. SRO402-2012, § 5-31(rule 7.1), 5-30-2012)
Rule 7.2. Excluded periods and continuances.
The following periods shall be excluded from
the computation of time limits set forth in Rule
7.1:
(1)
(c) Traffic offenses without imprisonment.
There shall be no right to a jury trial where a
person is charged with a traffic violation when:
(1)
The exclusive penalty is a fine; or
(2)
The court determines after a request for
jury trial is made that no penalty of
imprisonment shall be imposed in the
event the defendant is found guilty.
(Code 2012, § 5-31(rule 7); Ord. No. SRO-3952012, § 5-31(rule 7), 6-1-2012; Ord. No. SRO-4022012, § 5-31(rule 7), 5-30-2012)
Supp. No. 6
Rule 7.2
CD5:17
(2)
Delays on behalf of the defendant. Delays
occasioned on behalf of or for the benefit
of the defendant, including but not limited
to:
a.
Determine
defendant;
competency
of
the
b.
If the defendant is incarcerated in
another jurisdiction;
c.
While the defendant is on absconder
status;
d.
Defendant's request to prepare for
trial; and
e.
While the plea agreement is under
consideration by the court.
Interest of justice. Any delays resulting
from continuances granted by the court
Rule 7.2
COMMUNITY CODE OF ORDINANCES
the defendant's appearance for trial or
ensure the safety of the Community, the
court may release defendant with conditions as follows:
at the request of a party to serve the
interest of justice. A continuance may
only be granted as long as it is necessary
to serve the interests of justice. The
court shall state the specific reasons for
the continuance and the excluded period
of time.
(Code 2012, § 5-31(rule 7.2); Ord. No. SRO-3952012, § 5-31(rule 7.2), 6-1-2012; Ord. No. SRO402-2012, § 5-31(rule 7.2), 5-30-2012)
Rule 7.3. Remedy for denial of speedy
trial rights.
(a) Dismissal. If the court determines that
the defendant's speedy trial rights under Rule
7.1, have been violated, the court shall dismiss
the complaint upon defendant's motion or on its
own motion. The court shall have the discretion
to dismiss the case with or without prejudice.
(2)
Release on conditions. If the court
determines that a release on own
recognizance will not reasonably ensure
Supp. No. 6
CD5:18
Execution of a cash bond;
c.
Placing the person in the custody of
a designated person or organization
agreeing to supervise him or her;
d.
Restriction on the person's travel,
association, curfew or place of
residence during the period released;
e.
Any other condition which the court
deems reasonably necessary, including electronic monitoring.
(4)
Detention after determination of guilt. If
a defendant is found guilty or pleads
guilty to an offense which is likely to
result in a sentence of imprisonment, the
court may order that the defendant be
taken into custody. The defendant shall
receive credit for any presentence
incarceration towards the offense of
conviction.
(5)
Forfeiture of bond.
Rule 8. Consideration for release pending
trial.
Release on own recognizance. At initial
appearance or arraignment, any defendant
charged with the violation of law may be
ordered released pending trial on own
recognizance unless the judge determines
that such release will not reasonably
ensure the appearance of the defendant
for trial.
b.
Revocation and modification of conditions of release. Upon motion of any party
or on the court's own motion and with
notice to all parties, the court may amend
the conditions of release at any time. If
there is reason to believe that the
defendant has knowingly violated the
terms of conditions of release, the court
on its own motion or at the request of the
prosecutor may issue a warrant for the
arrest of the defendant to determine if
the defendant has violated the conditions
of release. If the court finds by a
preponderance of evidence that the
defendant has violated the conditions of
release, the court may detain the
defendant pending trial.
Rules committee note to this rule. The burden of
ensuring that speedy trial rights are not violated should fall
on the parties as well as the court. There may be circumstances
where the court may make mathematical errors and if it is
discovered by either party, the matter should be brought to
the attention of the court prior to the speedy trial violation
occurring.
(1)
Execution of an unsecured personal
bond in an amount specified by the
court;
(3)
(b) Duties of parties. All parties shall notify
the court of any speedy trial time violations
under Rule 7.1.
(Code 2012, § 5-31(rule 7.3); Ord. No. SRO-3952012, § 5-31(rule 7.3), 6-1-2012; Ord. No. SRO402-2012, § 5-31(rule 7.3), 5-30-2012)
The court shall impose conditions that will
ensure the appearance of the defendant and the
safety of the Community prior to trial.
a.
a.
Notice and hearing. If, the court has
issued an arrest warrant for the
defendant under subsection (3) of
RULES OF THE COMMUNITY COURT
this rule, the court shall notify the
person posting the bond in writing
that the warrant was issued within
ten days of the issuance of the warrant. The court shall also set a
hearing within a reasonable time
not to exceed 30 days requiring the
defendant and the person posting
the bond to show cause as to why
the bond should not be forfeited.
The court shall notify the defendant,
the person posting the bond, and
the prosecution of the hearing in
writing. The hearing may proceed
without the defendant or the person
posting the bond if sufficient proof
exists that the defendant and the
person posting the bond, if any,
were given notice of the hearing.
b.
c.
Forfeiture. If at the hearing, the
violation is not explained or excused,
the court may enter an appropriate
order of judgment forfeiting all or
part of the amount of the bond,
which shall be enforceable by the
Community as any civil judgment.
Order of forfeiture. After entering
an order of forfeiture, the court
shall forward:
1.
A copy of the forfeiture order
to
the
defendant,
the
defendant's counsel, and the
person posting the bond; and
2.
A copy of a signed forfeiture
order to the Community. The
bond shall be forfeited to the
Community. A forfeiture of
bond under this rule does not
preclude the court from setting
new bond or other conditions
of release.
(6)
Bond forfeiture hearing. Prosecution may
be permitted to participate in the bond
forfeiture hearing, but shall not be
required to participate in the hearing.
(7)
Right of counsel at hearing. The defendant
or the person posting the bond may have
counsel at his or her own expense at the
bond forfeiture hearing.
Supp. No. 6
(8)
Rule 9.1
Return of bond.
a.
Termination of proceeding. If the
defendant has complied with the
conditions of release or the case is
dismissed prior to trial, the bond
shall be returned to the person who
posted the bond.
b.
At any time before violation of release
conditions. Upon a motion of the
defendant or the Community, if the
court finds that there is no further
need for an appearance bond, it
shall exonerate the appearance bond
and order the return of bond to the
person who posted the bond.
(Code 2012, § 5-31(rule 8); Ord. No. SRO-3952012, § 5-31(rule 8), 6-1-2012; Ord. No. SRO-4022012, § 5-31(rule 8), 5-30-2012)
Rule 9. Defendant's right to be present.
A defendant shall have a right to be present
for arraignment, pretrial proceedings, at every
stage of the trial, and at the imposition of
sentence. The defendant may waive his or her
right to be present pursuant to Rules 9.1 and 9.2.
Code 2012, § 5-31(rule 9); Ord. No. SRO-3952012, § 5-31(rule 9), 6-1-2012; Ord. No. SRO-4022012, § 5-31(rule 9), 5-30-2012)
Rule 9.1. Defendant's waiver of his or her
presence.
(a) Proceeding in defendant ' s absence. A
defendant may waive his or her right to be
present at a proceeding if the defendant
voluntarily absents himself or herself from the
proceeding. If the defendant fails to appear for a
proceeding, the proceeding in the defendant's
absence may occur upon the motion of the prosecutor if the court determines that the defendant's
absence is voluntary and proceeding in the
defendant's absence would be in the interest of
justice. In determining whether the defendant'
absence is voluntary, the court shall consider
whether the defendant had personal notice of the
time of the proceeding, informed of the right to
be present at the proceeding, the defendant's
past appearance or failure to appear for proceeding in the case, and any warning given to the
CD5:19
Rule 9.1
COMMUNITY CODE OF ORDINANCES
defendant that the matter would proceed if the
defendant fails to appear for the matter. Interest
of justice factors that the court may consider are
the hardship and inconvenience to victims and/or
witnesses, the prejudice to the prosecutor's case,
as well as any inconvenience to the court if the
proceeding does not go forward. The defendant
shall not be sentenced in his or her absence
without the defendant's written consent.
(b) Disruptive or disorderly conduct. A
defendant who voluntarily engages in disruptive
or disorderly conduct after having been warned
by the court that the continued disruptive or
disorderly conduct will result in forfeiture of his
or her right to be present for the proceeding shall
forfeit his or her right to be present at the
proceeding. A defendant may reacquire his or
her right to be present for the proceeding if the
defendant gives personal assurance to the court
of his or her intended good behavior. A defendant
may be excluded from the proceeding without
any additional warning if the defendant engages
in further disruptive or disorderly conduct. If
the defendant has been removed under this rule,
the court shall use reasonable means to enable
the defendant to hear, observe, or be informed of
the proceedings and give the defendant reasonable opportunity to consult with defendant's
counsel at reasonable intervals.
(c) Additional sanctions. In addition to sanctions imposed for disruptive or disorderly conduct
by the defendant, the court may impose sanctions under Rule 29.2 for contempt.
(Code 2012, § 5-31(rule 9.1); Ord. No. SRO-3952012, § 5-31(rule 9.1), 6-1-2012; Ord. No. SRO402-2012, § 5-31(rule 9.1), 5-30-2012)
Rule 9.2. Defendant serving sentence in
other jurisdiction.
If a defendant is serving a sentence of imprisonment/jail in another jurisdiction and the defendant
has a charge pending in the court, the defendant
may request by writing to the court and to the
prosecutor to plead guilty to the Community
offense(s) and to have his or her sentence that
he/she is serving in another jurisdiction be credited
towards any sentence imposed in his or her
Community charge(s). Under this rule, a
Supp. No. 6
defendant and the prosecutor may reach an
agreement on the charge(s) and the sentence for
the court's consideration. A defendant who makes
this request agrees to give up his or her right to
be present for the guilty plea and sentence
hearing. The court may accept the agreement
reached by the defendant and the prosecutor and
make a determination of guilt and impose a
sentence without the defendant being personally
present. The clerk of the court shall forward a
copy of the determination of guilt and sentence
to the defendant. This rule does not give the
defendant the right to resolve the case.
(Code 2012, § 5-31(rule 9.2); Ord. No. SRO-3952012, § 5-31(rule 9.2), 6-1-2012; Ord. No. SRO402-2012, § 5-31(rule 9.2), 5-30-2012)
Rule 10. Change of judge.
(a) For cause. Prior to trial or a hearing, the
prosecutor or the defendant shall be entitled to a
change of judge if the assigned judge cannot
conduct a fair and impartial hearing or trial
without prejudice or bias. The party requesting
the change of judge must file a motion verified by
affidavit of the moving party and must allege
specific grounds for the change of judge prior to
commencement of the hearing or trial. A party
may make an oral request for change of judge
with leave of court. The hearing on the motion
for change of judge for cause shall be heard by a
judge other than the challenged judge. If the
hearing judge determines by preponderance of
evidence that grounds exist for bias or prejudice,
the matter shall be reassigned to another judge.
(b) Entitlement. In any criminal case, each
party has a matter of right to a change of judge.
The party requesting the change in judge shall
file a "notice of change of judge" within ten days
of arraignment. A party loses the right to change
of judge under Rule 10(b), if the party participates
in any contested matter in the case, pretrial
hearing, or trial before the challenged judge or
fails to file the notice no later than ten days after
arraignment. Each party may exercise this right
once in any case.
(c) Reassignment of a judge. If a change of
judge is granted, the case shall be immediately
reassigned to another judge.
CD5:20
RULES OF THE COMMUNITY COURT
(d) Duties of a challenged judge. Upon filing a
motion for a change of judge for cause, the
challenged judge shall proceed no further on the
case except to issue temporary orders as may be
necessary in the interest of justice before the
case can be reassigned. The challenged judge
may enter an order recusing himself/herself from
the case.
(Code 2012, § 5-31(rule 10); Ord. No. SRO-3952012, § 5-31(rule 10), 6-1-2012; Ord. No. SRO402-2012, § 5-31(rule 10), 5-30-2012; Ord. No.
SRO-548-2022, 9-28-2022)
Rule 10.1. Unavailability of judge.
If the judge before whom a trial or other
criminal proceeding is pending becomes unavailable, the case shall be immediately reassigned to
another judge. If, in the opinion of the new judge,
after a review of the record, the continuation of
the proceeding would be prejudicial to either the
prosecutor or a defendant, the judge shall order
a new trial or proceeding.
(Code 2012, § 5-31(rule 10.1); Ord. No. SRO-3952012, § 5-31(rule 10.1), 6-1-2012; Ord. No. SRO402-2012, § 5-31(rule 10.1), 5-30-2012)
mental examination is sought. If the court
determines that an examination to determine
defendant's competency is warranted, the court
shall order that the defendant undergo a mental
health evaluation by a mental health professional to determine the defendant's competency
to stand trial. On the motion of the defendant or
with the defendant's consent, the court may
order a screening examination for a guilty except
insane plea to be conducted by a mental health
professional.
(c) Medical records and records related to the
offense. All available medical records and records
related to the offense in the party's control shall
be provided to the examining mental health
expert by the party seeking the examination
within seven days of the court's order authorizing the examination.
Rule 10.2. Competency to stand trial.
(a) Policy. A person shall not be tried, convicted,
sentenced or punished for a violation of Community law while, as a result of a mental illness,
defect, or disability, the person is unable to
understand the proceedings against him or her
or to assist in his or her own defense. 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. The presence of a mental illness,
defect, or disability alone is not grounds for
finding a defendant incompetent to stand trial.
(b) Procedure. At any time after a complaint
is filed, the defendant or the prosecutor may
request in writing or the court on its own motion
may order, an examination of the defendant to
determine whether a defendant is competent to
understand the proceedings against the defendant.
The motion shall state the facts upon which the
Supp. No. 6
Rule 10.2
CD5:20.1
RULES OF THE COMMUNITY COURT
(d) Report of examination. Within 45 days of
the court's order authorizing examination of the
defendant to determine the defendant's competency to stand trial, the examiner shall submit a
written report to the court. Upon receipt of the
report, the court will copy and distribute the
expert's report to defendant's counsel. The defendant's counsel shall have five business days to
redact any statements of the defendant or summary of the defendant's statements pertaining to
the charged offense from the written report and
submit a copy of the report, with any redactions,
to the court for distribution to the prosecution. In
any event, statements of the defendant obtained
under these provisions regarding the charged
offense(s) or other crimes shall not be admissible
at or at any subsequent proceeding to determine
guilt or innocence, without the defendant's consent. For good cause, the time for filing the report
by the examiner may be extended for additional
30 days.
(e) Hearing. Within 30 days after the mental
health professional's report has been submitted to
the court, the court shall hold a hearing to determine the defendant's competency. The parties
may introduce other evidence regarding the defendant's mental condition, or by written stipulation, submit the matter on the report(s).
d.
(2)
Secs. 5-150—5-182. Reserved.
DIVISION 4. PRETRIAL MOTIONS AND
DISCOVERY
Rule 11. Pleas.
(a) Entering a plea.
Finds by preponderance of evidence that
the defendant is competent, proceedings
shall continue within 60 days. The defendant is entitled to repeat any proceeding
if there are reasonable grounds to believe
defendant was prejudiced by defendant's
previous incompetency;
Determines that the defendant is incompetent the court shall:
a.
Release the defendant from custody
for the charges if in custody;
b.
Dismiss the charges with prejudice;
c.
Refer the matter to Community prosecutor's office to pursue civil commitment of the defendant if the defendant poses danger to himself/herself
or to the Community or if the defendant is severely disabled;
Appoint a guardian ad litem.
(g) Confidentiality of the reports. The examination reports under this rule shall be treated as
confidential by the court and counsel in all respects. After the case proceeds to trial or the
defendant is found to be unable to regain competence, the court shall order the reports sealed.
The court may order the reports opened only for
further competency evaluation or examination or
when necessary to assist in mental health treatment or in a proceeding for civil commitment.
(Code 2012, § 5-31(rule 10.2); Ord. No. SRO-3952012, § 5-31(rule 10.2), 6-1-2012; Ord. No. SRO402-2012, § 5-31(rule 10.2), 5-30-2012)
(1)
Conditional plea. With the consent of the
court and the prosecutor, a defendant
may enter a conditional plea of guilty or
no contest, reserving in writing the right
to have an appellate court review an adverse determination of a specified pretrial
motion. A defendant who prevails on appeal may then withdraw the plea.
(2)
No contest plea. Before accepting a plea of
no contest, the court must consider the
parties' views and the public interest in
the effective administration of justice. The
court may not accept a plea of no contest
without the consent of the prosecutor.
(f) Orders. After the hearing, if the court:
(1)
Art. IV, Rule 11
(b) Considering and accepting a guilty or no
contest plea.
CD5:21
(1)
Advising and questioning the defendant.
Before the court accepts a plea of guilty or
no contest, the court must address the
defendant personally in open court. During this address, the court must inform
the defendant of, and determine that the
defendant understands, the following:
a.
The right to plead not guilty, or having so pled, to persist in that plea;
Art. IV, Rule 11
b.
The right to a jury trial;
c.
The right to be represented by counsel at trial and at every other stage
of the proceeding;
d.
(2)
(3)
COMMUNITY CODE OF ORDINANCES
The right at trial to confront and
cross examine witnesses who are
against the defendant, to be protected from compelled self-incrimination, to testify and present evidence,
and to compel the attendance of witnesses;
a.
Not bring, or will move to dismiss
other charges;
b.
Recommend, or agree not to oppose
the defendant's request for a particular sentence; and
c.
Agree that a specific sentence is the
appropriate disposition of the case.
(2)
Disclosing a plea agreement. Plea agreements shall be entered on the record and
in open court unless the court finds that
good cause exists to seal the proceedings.
(3)
e.
The defendant's waiver of these trial
rights if the court accepts a plea of
guilty or no contest;
f.
The nature of each charge to which
the defendant is pleading;
g.
Any maximum possible penalty, including imprisonment, fine and term
of probation;
Rejecting a plea agreement. If the court
rejects a plea agreement containing stipulations of the parties, the court must do
the following on the record and in open
court unless the court finds that good
cause exists to seal the proceedings:
h.
Any mandatory minimum penalty;
a.
i.
The court's authority to order restitution; and
Inform the parties that the court
rejects the plea agreement;
b.
j.
The terms of any plea agreement
provision waiving the right to appeal.
Advise the defendant personally that
the court is not required to follow the
plea agreement and give the defendant the opportunity to withdraw
the plea;
c.
Advise the defendant personally that
if the plea is not withdrawn, the
court may dispose of the case less
favorably toward the defendant than
the plea agreement contemplated;
and
d.
The parties are entitled to reassignment of the case to a judge.
Ensuring that a plea is voluntary. Before
accepting a plea of guilty or no contest,
the court must address the defendant
personally in open court and determine
that the plea is voluntary and did not
result from force, threats, or promises
(other than promises in a plea agreement).
Determining the factual basis for a plea.
Before entering judgment on a guilty plea,
the court must determine that there is a
factual basis for the plea.
(c) Plea agreement procedure.
(1)
lesser or related offense, the plea agreement may specify that the prosecutor will:
In general. The parties may discuss and
reach a plea agreement. The assigned
trial judge must not participate in these
discussions without the consent of both
parties. If the defendant pleads guilty or
no contest to either a charged offense or a
(d) Withdrawing a guilty or no contest plea. If
the court rejects a plea agreement, a defendant
may withdraw a plea of guilty or no contest plea.
After the court imposes the sentence, the defendant may not withdraw a plea of guilty or no
contest, and the plea may be set aside only on
direct appeal. The court may allow a defendant to
withdraw his or her guilty or no contest plea prior
to sentencing to correct a manifest injustice as
long as the defendant's withdrawal of the plea
does not prejudice the Community. If the defendant's guilty or no contest plea is withdrawn, all
CD5:22
RULES OF THE COMMUNITY COURT
the original charges that existed before any changes
or dismissal were made as part of the plea agreement shall be reinstated.
(e) Inadmissibility of a plea, plea discussions,
and related statements. If the court rejects the
plea agreement, or the judgment is vacated or
reversed, neither the plea discussions nor any
statements made at a hearing on the plea shall be
admissible against the defendant in any criminal
or forfeiture proceedings.
(Code 2012, § 5-31(rule 11); Ord. No. SRO-3952012, § 5-31(rule 11), 6-1-2012; Ord. No. SRO-4022012, § 5-31(rule 11), 5-30-2012; Ord. No. SRO412-2013, 3-1-2013)
Rules committee note to subsection (d) of this rule.
There may be limited circumstances where a defendant should
be allowed to withdraw his or her plea of guilt or no contest to
avoid manifest injustice prior to sentencing. The following are
nonexhaustive examples where a defendant should be allowed
to withdraw his or her plea of guilt or no contest: the plea was
entered involuntarily; the defendant did not have effective
assistance of counsel where the defendant was represented by
counsel; the defendant did not understand the nature of the
charges; there was insufficient factual basis for the plea; or
change in law.
Rule 12. Pretrial motions.
(a) Pretrial motions.
(1)
In general. All motions, other than one
made during a trial or a hearing, must be
made in writing and comply with Rule
31.1. Motions may be made orally with
the court's permission.
(2)
Motions that may be made before trial. A
party may raise by pretrial motion any
defense, objection, or request that the
court can determine without a trial of the
general issue.
(3)
Motions that must be made before trial.
The following shall be raised before trial:
a.
A motion alleging a defect in instituting the prosecution;
b.
A motion alleging a defect in the
complaint, but at any time while the
case is pending, the court may hear
a claim that the complaint fails to
invoke the court's jurisdiction or to
state an offense;
Art. IV, Rule 12.1
c.
A motion to suppress evidence or
suppress statements;
d.
A Rule 15, motion for discovery.
(b) Motions deadline. The court may set a
deadline for the parties to make pretrial motions
and may also schedule a motion hearing. If the
court does not set a deadline for motions, the
motion deadline shall be 30 days prior to trial.
Parties may make motions in limine at any time.
Generally, motions, defenses, or requests not timely
raised should be precluded unless the party making the motion did not know the basis for the
motion exercising reasonable diligence and the
party raises the motion promptly upon learning of
the basis of the motion.
(c) Ruling on a motion. The court must decide
every pretrial motion before trial unless it finds
good cause to defer a ruling. The court must not
defer ruling on a pretrial motion if the deferral
will adversely affect a party's right to appeal.
When factual issues are involved in deciding a
motion, the court must state its essential findings
on the record.
(Code 2012, § 5-31(rule 12); Ord. No. SRO-3952012, § 5-31(rule 12), 6-1-2012; Ord. No. SRO-4022012, § 5-31(rule 12), 5-30-2012)
Rule 12.1. Notice of an alibi defense.
(a) Notice to prosecutor. If the defendant intends to raise the defense of alibi, the defendant
must serve written notice to the prosecutor of any
intended alibi defense. The defendant's notice
must state:
(1)
Each specific place where the defendant
claims to have been at the time of the
alleged offense; and
(2)
The name/aliases, if available, address,
and telephone number of each alibi witness on whom the defendant intends to
rely.
(b) Disclosing prosecutor witnesses. If the defendant serves a notice as set forth in subsection
(a) of this rule, the prosecutor must disclose in
CD5:23
Art. IV, Rule 12.1
COMMUNITY CODE OF ORDINANCES
writing to the defendant or the defendant's counsel 15 days after receiving the defendant's notice:
(1)
The name, address, and telephone number of each witness the prosecutor intends
to rely on to establish the defendant's
presence at the scene of the alleged offense; and
(2)
Each prosecutor's rebuttal witness to the
defendant's alibi defense.
(c) Continuing duty to disclose. Both prosecutor and the defendant must promptly disclose in
writing to the other party the name, address, and
telephone number of each additional witness if:
(1)
The disclosing party learns of the witness
before or during trial; and
(2)
The witness should have been disclosed
under subsection (a) or (b) of this rule if
the disclosing party had known of the
witness earlier.
(d) Exceptions. For good cause, the court may
grant an exception to any requirement of subsections (a) through (c) of this rule.
Rule 12.2. Notice of an insanity defense;
mental examination.
(a) Notice of an insanity defense. A defendant
who intends to assert a defense that the person
was insane at the time of the alleged offense must
so notify the prosecutor in writing within the time
provided for filing a pretrial motion, or at any
later time the court sets, and file a copy of the
notice with the clerk. A defendant who fails to
give notice is precluded from asserting an insanity defense. The court may, for good cause, allow
the defendant to file the notice late, grant additional trial preparation time or make other appropriate orders.
(b) Notice of expert evidence of a mental condition. If a defendant intends to introduce expert
evidence relating to a mental disease or defect or
any other mental condition of the defendant bearing on the issue of guilt, the defendant must,
within the time provided for filing a pretrial
motion or at any later time the court sets, notify
the prosecutor in writing of such intention and
file a copy of the notice with the clerk. The court
may, for good cause, allow the defendant to file the
notice late, grant the parties additional trial preparation time, or make other appropriate orders.
(e) Timeliness. The defendant shall comply with
subsection (a) of this rule within the time period
set forth for filing pretrial motions or at any later
time the court sets. The names of the intended
alibi witnesses and rebuttal witnesses shall be
filed with the court.
(f) Failure to comply. If a party fails to comply
with this rule, the court may exclude the testimony of any undisclosed witness regarding the
defendant's alibi. This rule does not limit the
defendant's right to testify.
(g) Inadmissibility of withdrawn intention. Evidence of an intention to rely on an alibi defense,
later withdrawn, or of a statement made in connection with that intention, is not, in any civil or
criminal proceeding, admissible against the person who gave notice of the intention.
(Code 2012, § 5-31(rule 12.1); Ord. No. SRO-3952012, § 5-31(rule 12.1), 6-1-2012; Ord. No. SRO402-2012, § 5-31(rule 12.1), 5-30-2012)
CD5:24
(c) Mental examination.
(1)
Authority to order an examination; procedures.
a.
The court may order the defendant
to submit to a mental health examination under Rule 10.2.
b.
If the defendant provides notice under subsection (a) of this rule, the
court must, upon the Community's
motion, order the defendant to be
examined by a mental health professional. If the defendant provides notice under subsection (b) of this rule
the court may, upon the Community's
motion, order the defendant to be
examined under procedures ordered
by the court.
c.
The parties may stipulate to determination of mental illness based upon
the defendant's past mental health
and medical records.
RULES OF THE COMMUNITY COURT
(2)
Inadmissibility of a defendant's statements. No statement made by a defendant
in the course of any examination conducted under this rule (whether conducted with or without the defendant's
consent), no testimony by the expert based
on the statement, and no other fruits of
the statement may be admitted into evidence against the defendant in any criminal proceeding except on an issue regarding mental condition on which the
defendant has introduced evidence of incompetency or evidence requiring notice
under subsection (a) or (b) of this rule.
Rule 12.3. Notice of a public authority defense.
(a) Notice of the defense and disclosure of witnesses.
(d) Failure to comply. If the defendant fails to
give notice under subsection (b) of this rule or
does not submit to an examination when ordered
under subsection (c) of this rule, the court may
preclude the defendant from offering any mental
health professional's testimony or opinion evidence on the issue of the defendant's mental
disease, mental defect, or any other mental condition bearing on the defendant's guilt.
(e) Inadmissibility of withdrawn intention. Evidence of an intention as to which notice was
given under subsection (a) or (b) of this rule, later
withdrawn, is not, in any civil or criminal proceeding, admissible against the person who gave
notice of the intention.
(1)
Notice in general. If a defendant intends
to assert a defense of actual or believed
exercise of public authority on behalf of a
law enforcement agency at the time of the
alleged offense, the defendant must notify
the prosecutor in writing and must file a
copy of the notice with the court within
the time provided for filing a pretrial
motion, or at any later time the court sets.
The notice may be filed under seal with
the court's approval.
(2)
Contents of notice. The notice must contain the following information:
The defendant had a mental defect or
disease; and
(2)
As a result of this mental defect or disease, the defendant lacked substantial
capacity either to appreciate the criminality of the defendant's conduct or to conform the defendant's conduct to the requirements of law.
(Code 2012, § 5-31(rule 12.2); Ord. No. SRO-3952012, § 5-31(rule 12.2), 6-1-2012; Ord. No. SRO402-2012, § 5-31(rule 12.2), 5-30-2012)
CD5:25
a.
The law enforcement agency involved;
b.
The agency member on whose behalf
the defendant claims to have acted;
and
c.
The time during which the defendant claims to have acted with public authority.
(3)
Response to the notice. The prosecutor
must serve a written response on the
defendant or the defendant's counsel within
ten days after receiving the defendant's
notice, but no later than 20 days before
trial. The response must admit or deny
that the defendant exercised the public
authority identified in the defendant's notice.
(4)
Disclosing witnesses.
(f) Burden of proof. To prevail on the defense of
insanity, the defendant shall bear the burden of
proof by clear and convincing evidence that at the
time of the charged offense:
(1)
Art. IV, Rule 12.3
a.
Prosecutor's request. The prosecutor
may request in writing that the defendant disclose the name, address,
and telephone number of each witness the defendant intends to rely on
to establish a public authority defense. Prosecutor may serve the request when the prosecutor serves its
response to the defendant's notice
Art. IV, Rule 12.3
COMMUNITY CODE OF ORDINANCES
under subsection (a)(3) of this rule,
or later, but must serve the request
no later than 20 days before trial.
b.
c.
(5)
Defendant's response. Within seven
days after receiving the prosecutor's
request, the defendant must serve
the prosecutor a written statement
of the name, address, and telephone
number of each witness.
Prosecutor's reply. Within seven days
after receiving the defendant's statement, prosecutor must serve on the
defendant or the defendant's counsel
a written statement of the name,
address, and telephone number of
each witness the prosecutor intends
to rely on to oppose the defendant's
public authority defense.
Additional time. The court may, for good
cause, allow a party additional time to
comply with this rule.
(b) Continuing duty to disclose. Both counsel
for the defendant and the prosecutor must promptly
disclose in writing to the other party the name,
address, and telephone number of any additional
witness if:
(1)
The disclosing party learns of the witness
before or during trial; and
(2)
The witness should have been disclosed
under subsection (a)(4) of this rule if the
disclosing party had known of the witness
earlier.
(c) Failure to comply. If a party fails to comply
with this rule, the court may exclude the testimony of any undisclosed witness regarding the
public-authority defense. This rule does not limit
the defendant's right to testify.
(d) Protective procedures unaffected. This rule
does not limit the court's authority to issue appropriate protective orders or to order that any
filings be under seal.
(e) Inadmissibility of withdrawn intention. Evidence of an intention as to which notice was
given under subsection (a) of this rule, later
withdrawn, is not, in any civil or criminal proceeding, admissible against the person who gave
notice of the intention.
(Code 2012, § 5-31(rule 12.3); Ord. No. SRO-3952012, § 5-31(rule 12.3), 6-1-2012; Ord. No. SRO402-2012, § 5-31(rule 12.3), 5-30-2012)
Rule 13. Joinder.
Upon a motion by the prosecutor or the defendant(s), the court may order that separate cases
or separate defendants be tried together as though
brought in a single complaint if all offenses and
all defendants could have been joined in a single
complaint. In determining whether the cases or
defendants should be consolidated, the court shall
consider whether the offenses are:
(1)
Of similar or the same character;
(2)
Based upon the same conduct or are otherwise connected together; and/or
(3)
Alleged to have been part of a common
scheme.
(Code 2012, § 5-31(rule 13); Ord. No. SRO-3952012, § 5-31(rule 13), 6-1-2012; Ord. No. SRO-4022012, § 5-31(rule 13), 5-30-2012)
Rule 14. Relief from prejudicial joinder.
(a) Relief. If the joinder of offenses or defendants in a complaint, or a consolidation for trial
appears to prejudice a defendant or the prosecutor, the defendant(s) or prosecutor may request
the court to order separate trials of counts, sever
the defendants' trials, or provide any other relief
that justice requires.
(b) Defendant's statements. Before ruling on a
defendant's motion to sever, the court may order
the prosecutor to disclose any of the defendant's
statement that the prosecutor intends to use as
evidence. The court may also order that the
defendant's statements be redacted to ensure
fairness to defendant(s).
(Code 2012, § 5-31(rule 14); Ord. No. SRO-3952012, § 5-31(rule 14), 6-1-2012; Ord. No. SRO-4022012, § 5-31(rule 14), 5-30-2012)
Rules committee note to subsection (b) of this rule.
Under Indian Civil Rights Act, a defendant has right to
confrontation. Any statements of a nontestifying defendant
that incriminates a co-defendant should not be admitted
without proper redaction of the names of the co-defendants.
CD5:26
RULES OF THE COMMUNITY COURT
furnished under this rule, or that a matter contained in the notice of defenses is
not raised, shall not be commented upon
at the trial, unless the court on motion of
a party, allows such comment after finding that the inclusion of the witness' name
or defense constituted an abuse of the
applicable disclosure rule.
Rule 15. General standards governing discovery.
The following shall apply to all discovery under
this rule:
(1)
Statements.
a.
b.
(2)
A writing signed or otherwise
adopted or approved by a person;
2.
A mechanical, electrical or other
recording of a person's oral communications or a transcript
thereof; and
3.
A writing containing a verbatim record or a summary of a
person's oral communications.
Superseded notes. Handwritten notes
which have been substantially incorporated into a statement shall not be
considered a statement.
Materials not subject to disclosure.
a.
b.
(3)
Definition. Whenever it appears in
this rule, the term "statement" means:
1.
Art. IV, Rule 15.1
(4)
Use of materials. Any materials furnished
to counsel pursuant to this rule shall not
be disclosed to the public, but only to
others to the extent necessary to the proper
conduct of the case.
(Code 2012, § 5-31(rule 15); Ord. No. SRO-3952012, § 5-31(rule 15), 6-1-2012; Ord. No. SRO-4022012, § 5-31(rule 15), 5-30-2012)
Rules committee note to this rule. The purpose of
discovery is to notify the opposition of the party's case-in-chief
in return for reciprocal discovery and to avoid unnecessary
delay and surprise. The rules pertaining to discovery should
be read to promote the purpose behind requiring disclosure. As
a practical matter, without liberal disclosure, defendants and
the prosecutor may not be able make an informed decision to
settle a case or proceed to trial.
Rule 15.1. Discovery by prosecutor.
Work product. Disclosure shall not
be required of legal research or of
records, correspondence, reports or
memoranda to the extent that they
contain the opinions, theories or conclusions of the prosecutor, members
of the prosecutor's legal or investigative staff or law enforcement officers,
or of defense counsel or defense counsel's legal or investigative staff.
(a) Matters relating to guilt, innocence or punishment. No later than ten working days after the
arraignment or at such time as the court may
direct, prosecutor shall serve the defendant with
copies of the following materials and information
within the prosecutor's possession or control:
Informants. Disclosure of the existence of an informant or of the identity of an informant who will not be
called to testify shall not be required
where disclosure would result in substantial risk to the informant or to
the informant's operational effectiveness, provided that the failure to
disclose will not infringe the constitutional rights of the accused unless
the disclosure is ordered by the court
under Rule 15.4.
Failure to call a witness or raise a defense.
The fact that a witness' name is on a list
CD5:27
(1)
The names and physical addresses, if
known, of all persons whom the prosecutor will call as witnesses in the case-inchief together with relevant written or
recorded statements of those witnesses;
(2)
All statements of the defendant and of
any person who will be tried with the
defendant;
(3)
The names and addresses of experts who
have personally examined a defendant or
any evidence in the particular case, together with the results of physical examinations and of scientific tests, experiments or comparisons, including all written
reports or statements made by them in
connection with the particular case;
Art. IV, Rule 15.1
COMMUNITY CODE OF ORDINANCES
(4)
A list of all papers, documents, photographs or tangible objects which the prosecutor will use at trial or which were
obtained from or purportedly belong to
the defendant;
(5)
A list of all prior convictions of the defendant which the prosecutor will use at trial
or at sentencing;
(6)
A list of all prior acts of the defendant
which the prosecutor will use to prove
motive, intent, or knowledge or otherwise
use at trial;
(7)
All material or information which tends
to mitigate or negate the defendant's guilt
as to the offense charged, or which would
tend to reduce the defendant's punishment therefor, including all Community
conviction(s) that goes to the credibility of
the witness(es) whom the prosecutor expects to call at trial;
(8)
Original reports, any supplemental reports, search warrant affidavits and return, and probable cause statements prepared by law enforcement agency in
connection with the charged offense.
(b) Possible collateral issues. At the same time
the prosecutor shall inform the defendant and
make available to the defendant for examination
and reproduction any written or recorded material or information within the prosecutor's possession or control regarding:
(1)
Whether there has been any electronic
surveillance of any conversations to which
the accused was a party, or of the accused's business or residence;
(2)
Whether a search warrant has been executed in connection with the case; and
(3)
Whether or not the case involved an informant, and, if so, the informant's identity, if the defendant is entitled to know
either or both of these facts under Rule
15.5(a).
the prosecutor will use to impeach the witness at
trial, and make available to the defendant for
examination, testing and reproduction any specified items contained in the list submitted under
subsection (a)(4) of this rule. The prosecutor may
impose reasonable conditions, including an appropriate stipulation concerning chain of custody, to
protect physical evidence produced under this
section.
(d) Extent of prosecutor's duty to obtain information. The prosecutor's obligation under this
rule extends to material and information in the
possession or control of members of the prosecutor's staff and of any other persons who have
participated in the investigation or evaluation of
the case and who are under the prosecutor's
control.
(e) Disclosure of rebuttal evidence. Upon receipt of the notice of defenses required from the
defendant under Rule 15.2(b), the prosecutor shall
disclose the names and addresses of all persons
whom the prosecutor will call as rebuttal witnesses together with their relevant written or
recorded statements.
(Code 2012, § 5-31(rule 15.1); Ord. No. SRO-3952012, § 5-31(rule 15.1), 6-1-2012; Ord. No. SRO402-2012, § 5-31(rule 15.1), 5-30-2012)
Rules committee note to this rule. At the present time,
the Community does not have the authority to utilize National
Criminal Information Center (NCIC) or Arizona Criminal
Information Center (ACIC) that are maintained by the Federal Bureau of Investigations and Arizona Department of
Public Safety. Mandatory disclosures pertaining to a witness's
or defendant's criminal convictions are limited only to convictions arising in Community court.
Rule 15.2. Disclosure by defendant.
(a) Physical evidence. At any time after the
filing of a complaint, upon written request of the
prosecutor, the defendant, in connection with the
particular crime with which the defendant is
charged, shall:
(c) Additional disclosure upon request and specification. The prosecutor, upon written request,
shall disclose to the defendant a list of the prior
convictions of a specified defense witness which
CD5:28
(1)
Appear in a lineup;
(2)
Speak for identification by witnesses;
(3)
Be fingerprinted, palm-printed, footprinted
or voiceprinted;
(4)
Pose for photographs not involving reenactment of an event;
RULES OF THE COMMUNITY COURT
(5)
Try on clothing;
(6)
Permit the taking of samples of his or her
hair, blood, saliva, urine or other specified
materials which involve no unreasonable
intrusions of his or her body;
(7)
(8)
Provide specimens of his or her handwriting; or
Submit to a reasonable physical or medical inspection of his or her body, provided
such inspection does not include psychiatric or psychological examination.
The defendant shall be entitled to the presence of
counsel at the taking of such evidence. This rule
shall supplement and not limit any other procedures established by law.
(b) General notice of defenses. Within 20 working days after the arraignment or at such other
time as the court may direct, the defendant shall
provide the prosecutor with a written notice specifying all defenses as to which the defendant will
introduce evidence at trial, in addition to those
required to be disclosed under Rules 12.1 through
12.3, self-defense, entrapment, impotency, marriage, insufficiency of a prior conviction, mistaken
identity, and good character. The notice shall
specify for each defense the persons, including the
defendant, whom the defendant will call as witnesses at trial in support thereof. It may be
signed by either the defendant or defendant's
counsel, and shall be filed with the court.
written reports and statements, made by
them in connection with the particular
case; and
(3)
(2)
The names and physical addresses, if
known, of all persons, other than that of
the defendant, whom he or she will call as
witnesses at trial, together with all statements made by them in connection with
the particular case;
The names and addresses of experts whom
the defendant will call at trial, together
with the results of the defendant's physical examinations and of scientific tests,
experiments or comparisons, including all
A list of all papers, documents, photographs and other tangible objects which
the defendant will use at trial.
(d) Additional disclosure upon request and specification. The defendant, upon written request,
shall make available to the prosecutor for examination, testing, and reproduction any specified
items contained in the list submitted under subsection (c)(3) of this section.
(e) Extent of defendant's duty to obtain information. The defendant's obligation under this
rule extends to material and information within
the possession or control of the defendant, his or
her counsel and agents.
(Code 2012, § 5-31(rule 15.2); Ord. No. SRO-3952012, § 5-31(rule 15.2), 6-1-2012; Ord. No. SRO402-2012, § 5-31(rule 15.2), 5-30-2012)
Rule 15.3. Depositions.*
(a) Availability. Upon motion of any party or a
witness, the court may in its discretion order the
examination of any person except the defendant
upon oral deposition under the following circumstances:
(c) Disclosures by defendant. Simultaneously
with the notice of defenses submitted under subsection (b) of this rule, the defendant shall serve
the prosecutor's office information and copies of
the following:
(1)
Art. IV, Rule 15.3
(1)
A party shows that the person's testimony
is material to the case and that there is a
substantial likelihood that the person will
not be available at the time of trial;
(2)
A party shows that the person's testimony
is material to the case or necessary to
adequately prepare a defense or investigate the offense, that the person was not a
witness at the preliminary hearing or at
the probable cause phase of the juvenile
transfer hearing, and that the person will
not cooperate in granting a personal interview.
(b) Motion for taking deposition. A motion for
deposition shall specify the time and place for
taking the deposition and the name and address
of each person to be examined, together with
designated papers, documents, photographs or
CD5:29
*Note—Enactment of SRO-421-2013 unreserved this Rule.
Art. IV, Rule 15.3
COMMUNITY CODE OF ORDINANCES
other tangible objects, not privileged, to be produced at the same time and place. The court may
change such terms and specify any additional
conditions governing the conduct of the proceeding.
(c) Manner of taking. Except as otherwise provided herein or by order of the court, depositions
shall be taken in the manner provided in civil
actions. With the consent of the defendant, the
court may order that a deposition be taken on
written interrogatories in the manner provided in
civil actions. Any statement of the witness being
deposed which is in the possession of any party
shall be made available for examination and use
at the taking of the deposition to any party who
would be entitled thereto at trial. A deposition
may be recorded by other than stenographic means,
such as, by an audio or video recording device. If
a deposition is recorded by other than stenographic means, the party taking the deposition
shall provide the opposing party with a copy of the
recording within 14 days after the taking of the
deposition or not less than ten days before trial,
whichever is earlier. The parties may stipulate, or
the court may order, that a deposition be taken by
telephone, consistent with the provisions of Rule
15.3(d).
(h) Deposition by agreement. Nothing shall preclude the taking of the deposition, the use of the
deposition, by the agreement of the parties with
consent of the court.
(Code 2012, § 5-31(rule 15.3); Ord. No. SRO-3952012, § 5-31(rule 15.3), 6-1-2012; Ord. No. SRO402-2012, § 5-31(rule 15.3), 5-30-2012; Ord. No.
SRO-422-2013, § 5-31(rule 15.3), 6-1-2013)
Rule 15.4. Disclosure by order of the court.
Upon motion of the defendant or the prosecutor
showing that the defendant or the prosecutor has
substantial need in the preparation of defendant's
or prosecutor's case for additional material or
information not otherwise covered by Rule 15.1 or
15.2, and that the defendant or the prosecutor is
unable without undue hardship to obtain the
substantial equivalent by other means, the court
in its discretion may order any person to make it
available to him or her. The court may, upon the
request of any person affected by the order, vacate
or modify the order if compliance would be unreasonable or oppressive.
(Code 2012, § 5-31(rule 15.4); Ord. No. SRO-3952012, § 5-31(rule 15.4), 6-1-2012; Ord. No. SRO402-2012, § 5-31(rule 15.4), 5-30-2012)
Rule 15.5. Excision and protective orders.
(d) Presence of defendant. A defendant shall
have the right to be present at any examination
under Rule 15.3(a)(1) and (a)(2). If a defendant is
in custody, the officer having custody shall be
notified by the moving party of the time and place
set for the examination and shall, unless the
defendant waives, in writing, the right to be
present, produce the defendant at the examination and remain with the defendant during it.
(a) Discretion of the court to deny, defer or
regulate discovery. Upon motion of any party
showing good cause the court may at any time
order that disclosure of the identity of any witness be deferred for any reasonable period of time
not to extend beyond five days prior to the date set
for trial, or that any other disclosures required by
this rule be denied, deferred or regulated when it
finds that:
(e) Use Depositions may be used in the manner
consistent with Rules of Evidence adopted by the
court.
(f) Expenses. The party seeking the deposition
shall bear the cost of the deposition.
(g) Objection to deposition testimony. Objections to the deposition testimony or evidence and
the grounds for the objection shall be stated at the
time of taking of the deposition.
(1)
The disclosure would result in a risk or
harm outweighing any usefulness of the
disclosure to any party; and
(2)
The risk cannot be eliminated by a less
substantial restriction of discovery rights.
(b) Discretion of the court to authorize excision.
Whenever the court finds, on motion of any party,
that only a portion of a document or other material is discoverable under these rules, it may
CD5:30
RULES OF THE COMMUNITY COURT
authorize the party disclosing it to excise that
portion of the material which is nondiscoverable
and disclose the remainder.
order issued pursuant thereto, the court may
impose any sanction which it finds just under the
circumstances, including, but not limited to:
(c) Protective and excision order proceedings.
On motion of the party seeking a protective or
excision order, or submitting for the court's determination the discoverability of any material or
information, the court may permit the party to
present the material or information for the inspection of the judge alone. The counsel for all other
parties shall be entitled to be present when such
presentation is made, but is not entitled to view
the submission.
(d) Preservation of record. If the court enters
an order that any material, or any portion thereof,
is not discoverable under this rule, the entire text
of the material shall be sealed and preserved in
the record to be made available to the appellate
court in the event of an appeal.
(Code 2012, § 5-31(rule 15.5); Ord. No. SRO-3952012, § 5-31(rule 15.5), 6-1-2012; Ord. No. SRO402-2012, § 5-31(rule 15.5), 5-30-2012)
Rule 15.6. Continuing duty to disclose.
If, at any time after an initial disclosure has
been made, any party who discovers additional
information or material which would be subject to
disclosure had it then been known, such party
shall promptly notify all other parties of the
existence of such additional material, and make
an appropriate disclosure. Each party shall continue to disclose materials subject to disclosure in
Rules 15.1 and 15.2, as it becomes available and
exercise due diligence in obtaining and disclosing
materials that are subject to disclosure in Rules
15.1 and 15.2.
(Code 2012, § 5-31(rule 15.6); Ord. No. SRO-3952012, § 5-31(rule 15.6), 6-1-2012; Ord. No. SRO402-2012, § 5-31(rule 15.6), 5-30-2012)
Art. IV, Rule 16
(1)
Ordering disclosure of the information
not previously disclosed;
(2)
Granting a continuance;
(3)
Holding a witness, party, or counsel in
contempt;
(4)
Precluding a party from calling a witness,
offering evidence, or raising a defense not
disclosed;
(5)
Declaring a mistrial when necessary to
prevent a miscarriage of justice; or
(6)
Dismissal of a case with or without prejudice.
(b) Cessation of prosecutor's obligations. If the
defendant fails to comply with Rule 15.2, the
prosecution need make no further disclosure except material or information which tends to mitigate or negate defendant's guilt as to the offense
charged as set forth in Rule 15.1(a)(7), or as
ordered by the court.
(Code 2012, § 5-31(rule 15.7); Ord. No. SRO-3952012, § 5-31(rule 15.7), 6-1-2012; Ord. No. SRO402-2012, § 5-31(rule 15.7), 5-30-2012)
Rules committee note to this rule. The severity of the
sanction imposed should be proportional to the severity of the
violation. Only in rare circumstances should a case be dismissed for a discovery violation. Likewise, only in rare circumstances should a defendant be precluded from presenting a
defense for a discovery violation. In determining the appropriate sanction, the court should consider whether the violator
acted in good faith or bad faith and whether the sanctions
would promote the interests of justice.
Rule 16. Pretrial conference.
(a) Pretrial order. If a pretrial conference is set
in a non-jury trial, the court shall set out the
pretrial conference at least 30 days prior to the
trial date.
(b) Issues addressed. If a pretrial conference is
ordered, the following issues may be addressed:
Rule 15.7. Sanctions.
(a) Failure to comply. If at any time during the
course of the proceeding it is brought to the
attention of the court that a party has failed to
comply with any provisions of this rule or any
CD5:31
(1)
Outstanding pretrial motions;
(2)
Stipulations of fact or particular legal
issues to be tried;
(3)
Jury instructions to be given at trial.
Art. IV, Rule 16
COMMUNITY CODE OF ORDINANCES
(c) Additional issues addressed. The court may
identify other issues to be resolved at the pretrial
conference. Where issues at the pretrial conference go beyond those set forth in subsection (b) of
this rule, the court shall give notice to the parties
of the issues to be addressed at the time the notice
of pretrial conference is sent out by the court.
(d) Mandatory when jury trial set. When a
request for a jury trial is made or when the
defendant is entitled to a jury trial, a pretrial
conference shall be scheduled at the time of the
request. The pretrial conference shall be held no
less than 15 days before the trial date. At the
pretrial conference, the prosecutor and the defendant shall:
(1)
Finalize the list of witness to be called at
the trial. After the pretrial conference, no
additions to the list shall be allowed except upon a showing to the court that the
existence of the witness or the content of
the witness' proposed testimony could not
have been discovered earlier;
(2)
Finalize the list of exhibits and mark
them for identification;
(3)
Specify what additional pretrial motions
will be filed;
(4)
Determine whether the parties have
reached a disposition.
(e) Additional pretrial conference. The court
may set additional pretrial conferences either on
its own or upon the request of either party.
(Code 2012, § 5-31(rule 16); Ord. No. SRO-3952012, § 5-31(rule 16), 6-1-2012; Ord. No. SRO-4022012, § 5-31(rule 16), 5-30-2012)
Rule 16.1. Procedure on pretrial motions to
suppress.
(a) Duty of court to inform defendant. Whenever an issue concerning the constitutionality of
the use of specific evidence against the defendant
arises before trial, and the defendant is not represented by counsel, the court shall inform the
defendant that:
(1)
The defendant may, but need not, testify
at a pretrial hearing on the circumstances
surrounding the acquisition of the evidence;
(2)
If the defendant testifies at the hearing,
the defendant will be subject to cross
examination;
(3)
If the defendant testifies at the hearing,
the defendant does not waive his or her
right to remain silent during the trial;
and
(4)
If the defendant testifies at the hearing,
neither this fact nor defendant's testimony at the hearing shall be mentioned
at the actual trial unless the defendant
testifies at trial concerning the same matters. If a defendant testifies at both the
pretrial suppression hearing and at trial,
the defendant may be subject to cross
examination at trial regarding defendant's previous testimony given at the
pretrial suppression hearing.
(b) Burden of proof on pretrial motions to suppress evidence. The prosecutor shall have the
burden of proving, by a preponderance of the
evidence, the lawfulness in all respects of the
acquisition of all evidence which the prosecutor
will use at trial.
(Code 2012, § 5-31(rule 16.1); Ord. No. SRO-3952012, § 5-31(rule 16.1), 6-1-2012; Ord. No. SRO402-2012, § 5-31(rule 16.1), 5-30-2012)
Rule 16.2. Withdrawal of jury trial request
or waiver of jury trial.
(a) Withdrawal of jury trial demand. Demand
for jury trial shall only be withdrawn on consent
of the defendant.
(b) Form of withdrawal or waiver. A withdrawal or waiver of jury trial demand under this
rule shall be made in writing or in open court on
the record.
(Code 2012, § 5-31(rule 16.2); Ord. No. SRO-3952012, § 5-31(rule 16.2), 6-1-2012; Ord. No. SRO402-2012, § 5-31(rule 16.2), 5-30-2012)
Rule 16.3. Dismissals of prosecution.
(a) On prosecutor's motion. The court, on motion of the prosecutor shall order that a prosecution be dismissed at any time upon finding that
the purpose of the dismissal is not to avoid the
provisions of Rule 7.1.
CD5:32
RULES OF THE COMMUNITY COURT
(b) On defendant's motion. The court, on motion
of the defendant, shall order that a prosecution
be dismissed upon finding that the complaint is
insufficient as a matter of law.
(c) Record. The court shall state, on the record,
its reasons for ordering dismissal of any prosecution.
(d) Effect of dismissal. Dismissal of a prosecution shall be without prejudice to commencement of another prosecution, unless the court
order finds that the interests of justice require
that the dismissal be with prejudice.
(e) Release of defendant; exoneration of bond.
When a prosecution is dismissed, the defendant
shall be released from custody only on the charges
being held for the dismissed charge and any
appearance bond for the dismissed charges shall
be exonerated.
(Code 2012, § 5-31(rule 16.13); Ord. No. SRO395-2012, § 5-31(rule 16.3), 6-1-2012; Ord. No.
SRO-402-2012, § 5-31(rule 16.3), 5-30-2012)
Secs. 5-183—5-210. Reserved.
Rule 17.3
trial, the trial judge shall issue a decision within
five business days after the conclusion of the
trial.
(Code 2012, § 5-31(rule 17.1); Ord. No. SRO-3952012, § 5-31(rule 17.1), 6-1-2012; Ord. No. SRO402-2012, § 5-31(rule 17.1), 5-30-2012; Ord. No.
SRO-542-2022, 2-23-2022, eff. 5-1-2022)
Rule 17.2. Challenges.
(a) Challenge to the panel. Either party may
challenge the panel on the ground that in its
selection there has been a material departure
from the requirements of law. Challenges to the
panel shall specify the facts on which the challenge is based. Challenges shall be made and
decided before any individual juror is examined.
(b) Challenge for cause. When there is reasonable ground to believe that a juror cannot render
a fair and impartial verdict, the court, on its own
initiative, or on motion of any party, shall excuse
the juror from service in the case. A challenge for
cause may be made at any time, but may be
denied for failure of the party making it to
exercise due diligence.
(c) Peremptory challenges.
(1)
DIVISION 5. TRIAL
Rule 17.1. Jury or nonjury trial.
(a) Jury size and fees generally. In general, a
jury consists of six individuals drawn from the
jury list prepared pursuant to section 5-35(d)(1)
and 5-35(d)(2). Any fees payable for jury service
shall be pursuant to section 5-35(d)(7).
(b) Stipulation for a smaller jury. At any time
before the verdict, the parties may, with the
court's approval, stipulate in writing or pronounce
in open court that the jury may consist of fewer
than six persons.
(c) Nonjury trial. In a case tried without a
jury, the court must find the defendant guilty or
not guilty or if applicable, not guilty by reason of
insanity. If a party requests, before the finding of
guilty or not guilty, the court must state its
specific findings of fact in open court or in a
written decision or opinion. If the trial judge
does not issue a decision at the conclusion of the
Supp. No. 4
In general. Both parties shall be allowed
two peremptory challenges. A party may
exercise fewer than the allowable peremptory challenge(s) subject to limitations in
Rule 17.3(g).
(2)
If an alternate juror is selected under
Rule 17.3(h), neither party shall be
entitled to additional peremptory challenges.
(Code 2012, § 5-31(rule 17.2); Ord. No. SRO-3952012, § 5-31(rule 17.2), 6-1-2012; Ord. No. SRO402-2012, § 5-31(rule 17.2), 5-30-2012)
Rule 17.3. Procedure for selecting the
trial jury.
(a) Swearing panel. All members of the panel
shall swear or affirm that they will truthfully
answer all questions concerning their qualifications.
(b) Calling jurors for examination. The court
or clerk shall then call to the jury box a number
of jurors equal to the number to serve plus the
CD5:33
Rule 17.3
COMMUNITY CODE OF ORDINANCES
number of alternates plus the number of peremptory challenges allowed the parties. Alternatively,
and at the court's discretion, all prospective
jurors may be examined by court and counsel.
There shall be at least ten names drawn from the
jury list.
(c) Inquiry by the court. The court shall initiate the examination of jurors by identifying the
parties and their counsel, briefly outlining the
nature of the case, and explaining the purposes
of the examination. The court shall ask any
questions which it thinks necessary to determine
the prospective jurors' qualifications to serve in
the case on trial.
(d) Voir dire examination. The court shall
conduct a thorough oral examination of prospective jurors. Upon the request of any party, the
court shall permit that party a reasonable time
to conduct a further oral examination of the
prospective jurors. The court may impose reasonable limitations with respect to questions allowed
during a party's examination of the prospective
jurors, giving due regard to the purpose of such
examination. In addition, the court may terminate
or limit voir dire on grounds of abuse. Nothing in
this rule shall preclude the use of written questionnaires to be completed by the prospective jurors,
in addition to oral examination. Parties are
encouraged to submit written proposed voir dire
questions at least seven days prior to trial.
(e) Scope of examination. The examination of
prospective jurors shall be limited to inquiries
directed to challenge for cause or to information
to enable the parties to exercise intelligently
their peremptory challenges.
exhausted. Failure of a party to exercise a
challenge in turn shall operate as a waiver of the
party's remaining challenges, but shall not deprive
the other party of any remaining challenges. If
the parties fail to exercise the full number of
challenges allowed, the clerk shall strike the
jurors on the bottom of the list until only the
number to serve, plus an alternate, if any remain.
Peremptory challenges shall be made outside the
presence of the jurors.
(h) Selection of jury and an alternate juror.
The persons remaining in the jury box or on the
list of the panel of prospective jurors shall
constitute the jurors for the trial. Just before the
jury retires to begin deliberations, the clerk
shall, by lot, determine the juror or jurors to be
designated as an alternate. The alternate, upon
being physically excused by the court, shall be
instructed to continue to observe the admonitions to jurors until the alternate juror is informed
that a verdict has been returned or the jury has
been discharged. In the event a deliberating
juror is excused due to inability or disqualification to perform required duties, the court may
substitute an alternate juror, unless disqualified, to join in the deliberations. If an alternate
joins the deliberations, the jury shall be instructed
to begin deliberations anew. In general, the
court may empanel no more than two alternate
jurors in addition to the regular jury.
(Code 2012, § 5-31(rule 17.3); Ord. No. SRO-3952012, § 5-31(rule 17.3), 6-1-2012; Ord. No. SRO402-2012, § 5-31(rule 17.3), 5-30-2012)
Rule 17.4. Preparation of jurors.
(f) Challenge for cause. At any time that
cause for disqualifying a juror appears, the court
shall excuse the juror before the parties are
called upon to exercise their peremptory challenges. Challenges for cause shall be made out of
the hearing of the jurors, but a record shall be
made.
(a) Oath. Each juror shall take the following
oath: "Do you swear or affirm that you will give
careful attention to the proceedings, abide by the
court's instructions, and render a verdict in
accordance with the law and evidence presented
to you?"
(g) Exercise of peremptory challenges. Following examination of the jurors, the parties shall
exercise their peremptory challenges on the clerk's
list by alternating strikes, beginning with the
prosecutor, until the peremptory challenges are
(b) Preliminary instructions. Immediately after
the jury is sworn, the court shall instruct the
jury concerning its duties, its conduct, the order
of proceedings, the procedure for submitting
written questions of witnesses or of the court as
Supp. No. 4
CD5:34
RULES OF THE COMMUNITY COURT
set forth in subsection (d) of this section, and the
elementary legal principles that will govern the
proceeding.
Supp. No. 4
CD5:34.1
Rule 17.4
RULES OF THE COMMUNITY COURT
Art. IV, Rule 18
ing the witness shall have a right to
conduct a redirect of the witness. The
redirect shall be limited in scope to areas
covered on cross examination. Re-cross
examination shall not be permitted without explicit permission of the court and if
permission is granted, the scope of the
recross examination shall be to the redirect examination.
(c) Note taking; access to juror notes and notebooks. The court shall instruct the jurors that
they may take notes regarding the evidence presented. The court shall provide materials suitable
for this purpose. In its discretion, the court may
authorize documents and exhibits to be included
in notebooks for use by jurors during trial to aid
them in performing their duties. Jurors shall
have access to their notes and notebooks during
recesses and deliberations. After the jury has
rendered its verdict, the notes shall be collected
by the bailiff or clerk who shall destroy them
promptly.
(d) Juror questions. Jurors shall be instructed
that they are permitted to submit to the court
written questions directed to witnesses or to the
court; and that opportunity will be given to counsel to object to such questions out of the presence
of the jury.
(e) Court may prohibit. Notwithstanding the
foregoing, for good cause, the court may prohibit
or limit the submission of questions to witnesses.
(Code 2012, § 5-31(rule 17.4); Ord. No. SRO-3952012, § 5-31(rule 17.4), 6-1-2012; Ord. No. SRO402-2012, § 5-31(rule 17.4), 5-30-2012)
(6)
The defendant may then make an opening
statement if it was deferred, and offer
evidence in his or her defense. If the
defendant has no evidence to offer and
deferred making an opening statement,
defendant shall not be allowed to make an
opening statement.
(7)
If a defendant offers evidence in his or her
defense, the prosecutor may offer rebuttal
evidence.
(8)
The parties may present closing arguments, the prosecutor proceeding first and
then defense, and finally prosecution's
rebuttal.
(9)
The judge shall then charge the jury.
(10) With the permission of court, the parties
may agree to any other method of proceeding.
Rule 18. Trial proceedings.
(a) Order of proceedings. The trial shall proceed in the following order unless otherwise directed by the court:
(1)
The complaint shall be read and the plea
of the defendant stated.
(2)
The prosecutor may make an opening
statement.
(3)
The defendant may then make an opening
statement or may defer such opening statement until the close of the prosecution's
evidence.
(4)
The prosecutor shall offer the evidence in
support of the charge.
(5)
The party calling the witness shall proceed first with direct examination. The
noncalling party shall have the opportunity to cross examine the witness. If the
noncalling party has exercised its right to
cross examine the witness, the party call-
(b) Proceedings when defendant is charged with
prior convictions. In all prosecutions in which a
prior conviction is alleged as a sentencing enhancement, the procedure shall be as follows:
CD5:35
(1)
The trial shall proceed initially as though
the sentencing allegations were not alleged. When the complaint is read all
reference to prior offenses or sentencing
allegations shall be omitted. During the
trial of the case, no instructions shall be
given, reference made, nor evidence received concerning the sentencing allegations, except as permitted by the court
after notice of intent to use the prior
conviction(s) has been provided to the
defendant prior to trial.
(2)
If the verdict is guilty, the trial judge shall
determine, unless the defendant has admitted to the allegation, the existence of
the allegation or prior conviction(s). The
Art. IV, Rule 18
COMMUNITY CODE OF ORDINANCES
defendant may only be tried on the prior
convictions that have been previously disclosed under Rule 15.1. The prosecutor
shall bear the burden of proof beyond a
reasonable doubt.
(Code 2012, § 5-31(rule 18); Ord. No. SRO-3952012, § 5-31(rule 18), 6-1-2012; Ord. No. SRO-4022012, § 5-31(rule 18), 5-30-2012)
Rule 18.1. Exclusion of witnesses and public.
(a) Witnesses. Upon motion of either party or
on its own motion, the court shall exclude the
witnesses(es) from the courtroom during the opening statements and the testimony of other witnesses. The court shall further direct the
witnesses(es) not to discuss the case with any
other witnesses until all of the witnesses(es) have
testified. Once a witness has testified on direct
examination and has been made available to all
parties for cross examination, the witness shall be
allowed to remain in the courtroom unless the
court finds that the presence of the witness would
be prejudicial to a fair trial.
(b) Public. All proceedings shall be open to the
public unless the court finds upon a motion by the
defendant, the open proceeding would jeopardize
the defendant's right to a fair trial by an impartial jury. If the proceeding is closed to the public,
a complete record shall be kept of the closed
proceeding and made available following the completion of the case.
(c) Testimony of a child witness or witness with
special needs. At the request of the prosecutor, the
defendant, or the guardian ad litem, if any, the
court may take protective steps to protect the
child witness during testimony. The protective
measures include the use of closed circuit television or other such similar recording device for the
purposes of interviewing or court testimony when
appropriate, and to have an advocate remain with
the child prior to and during any recording sessions. The use of closed circuit television or other
such similar recording device is appropriate when
the trial court, after hearing evidence, determines
this procedure is necessary to protect the particular child witness' welfare; and specifically finds
the child would be traumatized, not by the court-
room generally, but by the defendant's presence
and finds that the emotional distress suffered by
the child in the defendant's presence is more than
de minimus.
(d) Investigator. If the court orders the exclusion of the witnesses, the court may not exclude
the investigator for the defendant or the prosecutor.
(e) Victim. If a person is designated as a victim
of a crime, the victim shall be allowed to be
present in the courtroom for the entire proceeding.
(Code 2012, § 5-31(rule 18.1); Ord. No. SRO-3952012, § 5-31(rule 18.1), 6-1-2012; Ord. No. SRO402-2012, § 5-31(rule 18.1), 5-30-2012)
Rule 18.2. Presence of defendant.
The defendant has the right to be present at
every stage of the trial, including impaneling of
the jury, the giving of jury instructions, and the
return of the verdict. If the defendant has been
given notice of the trial date and the court determines, after reviewing the factors identified in
Rule 9.1, that the defendant voluntarily has not
appeared for trial, the trial may proceed in the
absence of the defendant at the request of the
prosecutor.
(Code 2012, § 5-31(rule 18.2); Ord. No. SRO-3952012, § 5-31(rule 18.2), 6-1-2012; Ord. No. SRO402-2012, § 5-31(rule 18.2), 5-30-2012)
Rule 19. Directed verdict.
(a) Before verdict. On motion of the defendant
or on its own motion, the court shall enter a
judgment of acquittal of one or more offenses
charged in the complaint after the evidence on
either side is closed if there is no substantial
evidence to warrant a conviction. The court's
decision on a defendant's motion shall not be
reserved, but shall be made with all possible
speed. Proceedings under this rule shall be conducted outside the presence of the jury.
(b) After verdict. A motion for judgment of
acquittal made before the verdict may be renewed
by a defendant within ten days after the verdict
was returned.
(Code 2012, § 5-31(rule 19); Ord. No. SRO-3952012, § 5-31(rule 19), 6-1-2012; Ord. No. SRO-4022012, § 5-31(rule 19), 5-30-2012)
CD5:36
RULES OF THE COMMUNITY COURT
Rule 20.1. Requests for instructions and
forms of verdict.
At the close of the evidence or at such earlier
time as the court directs, counsel for each party
shall submit to the court counsel's written requests for instructions and forms of verdict and
shall furnish copies to the other parties.
(Code 2012, § 5-31(rule 20.1); Ord. No. SRO-3952012, § 5-31(rule 20.1), 6-1-2012; Ord. No. SRO402-2012, § 5-31(rule 20.1), 5-30-2012)
Rule 20.2. Rulings on instructions and forms
of verdict.
(a) Conference. The court shall confer with
counsel and inform them of its proposed action
upon requests for instructions and forms of verdict prior to final argument to the jury.
ing them when to reassemble. The court shall
further instruct the jury that they are not to
discuss the matter among themselves unless all
jurors are reassembled. The jury shall be also
admonished not to converse with involved parties,
witnesses(es) or to view any evidence that was not
presented during trial.
(Code 2012, § 5-31(rule 21.1); Ord. No. SRO-3952012, § 5-31(rule 21.1), 6-1-2012; Ord. No. SRO402-2012, § 5-31(rule 21.1), 5-30-2012)
Rule 21.2. Materials used during deliberation.
Upon retiring for deliberation, the jurors shall
take with them:
(b) Duty of the court. The court shall not inform the jury which instructions, if any, are
included at the request of a particular party.
(c) Waiver of error. No party may assign as
error on appeal the court's giving or failing to give
any instruction or portion thereof or to the submission or the failure to submit a form of verdict
unless the party objects thereto before the jury
retires to consider its verdict, stating distinctly
the matter to which the party objects and the
grounds for the objection.
(d) Jurors' copies. The court's preliminary and
final instructions on the law shall be in written
form. A copy of the final instructions shall be
furnished to jurors before the jury retires for
deliberations.
(Code 2012, § 5-31(rule 20.2); Ord. No. SRO-3952012, § 5-31(rule 20.2), 6-1-2012; Ord. No. SRO402-2012, § 5-31(rule 20.2), 5-30-2012)
Rule 21.1. Retirement of jurors.
(a) Retirement. After instructing the jury, the
court shall appoint or instruct the jurors to elect a
foreperson. The jurors shall then retire in the
custody of a court officer and consider their verdict.
(b) Permitting the jury to disperse. The court
may in its discretion permit the jurors to disperse
after their deliberations have commenced, instruct-
Art. IV, Rule 21.3
(1)
Forms of verdict approved by the court,
which shall not indicate in any manner
the punishment subscribed to the offense(s);
(2)
All jurors' copies of written or recorded
instructions;
(3)
Their notes; and
(4)
Such tangible evidence as the court in its
discretion shall direct.
(Code 2012, § 5-31(rule 21.2); Ord. No. SRO-3952012, § 5-31(rule 21.2), 6-1-2012; Ord. No. SRO402-2012, § 5-31(rule 21.2), 5-30-2012)
Rule 21.3. Further review of evidence and
additional instructions.
After the jurors have retired to consider their
verdict, if they desire to have any testimony
repeated, or if they or any party request additional instructions, the court may recall them to
the courtroom and order the testimony read or
give appropriate additional instructions. The court
may also order other testimony read or give other
instructions, so as not to give undue prominence
to the particular testimony or instructions requested. Such testimony may be read or instructions given only after notice is given to the parties
and the parties shall have a right to be present
before any testimony is read to the jury or any
additional instructions are given.
(Code 2012, § 5-31(rule 21.3); Ord. No. SRO-3952012, § 5-31(rule 21.3), 6-1-2012; Ord. No. SRO402-2012, § 5-31(rule 21.3), 5-30-2012)
CD5:37
Art. IV, Rule 21.4
COMMUNITY CODE OF ORDINANCES
Rule 21.4. Assisting jurors at impasse.
If the jury advises the court that it has reached
an impasse in its deliberations, the court may, in
the presence of counsel, inquire of the jurors to
determine whether and how court and counsel
can assist them in their deliberative process.
After receiving the jury's response, if any, the
judge may direct that further proceedings occur
as appropriate.
(Code 2012, § 5-31(rule 21.4); Ord. No. SRO-3952012, § 5-31(rule 21.4), 6-1-2012; Ord. No. SRO402-2012, § 5-31(rule 21.4), 5-30-2012)
Rule 21.5. Discharge.
if the defendant poses danger to himself/herself or
to the Community or if the defendant is severely
disabled.
(c) Different offenses. If different counts or offenses are charged in the complaint, the verdict
shall specify each count or offense of which the
defendant has been found guilty or not guilty.
(d) Different degrees (reserved). When the verdict of guilty is to an offense which is divided into
degrees, the verdict shall specify the degree of
which the defendant has been found guilty.*
(Code 2012, § 5-31(rule 22.2); Ord. No. SRO-3952012, § 5-31(rule 22.2), 6-1-2012; Ord. No. SRO402-2012, § 5-31(rule 22.2), 5-30-2012)
The court shall discharge the jurors when:
(1)
Their verdict has been recorded as set
forth in Rule 22.1;
Rule 22.3. Conviction of necessarily included
offenses (reserved).†
(2)
Upon expiration of such time as the court
deems proper, it appears that there is no
reasonable probability that the jurors can
agree upon a verdict; or
Forms of verdicts shall be submitted to the jury
for all offenses necessarily included in the offense
charged, an attempt to commit the offense charged
or an offense necessarily included therein, if such
attempt is an offense. The defendant may not be
found guilty of any offense for which no form of
verdict has been submitted to the jury.
(Code 2012, § 5-31(rule 22.3); Ord. No. SRO-3952012, § 5-31(rule 22.3), 6-1-2012; Ord. No. SRO402-2012, § 5-31(rule 22.3), 5-30-2012)
(3) A necessity exists for their discharge.
(Code 2012, § 5-31(rule 21.5); Ord. No. SRO-3952012, § 5-31(rule 21.5), 6-1-2012; Ord. No. SRO402-2012, § 5-31(rule 21.5), 5-30-2012)
Rule 22.1. Jury verdict.
The verdict of the jury shall be in writing,
signed by all of the jurors and returned to the
judge in open court. The verdict must be unanimous.
(Code 2012, § 5-31(rule 22.1); Ord. No. SRO-3952012, § 5-31(rule 22.1), 6-1-2012; Ord. No. SRO402-2012, § 5-31(rule 22.1), 5-30-2012)
Rule 22.2. Types of verdicts.
(a) General verdicts. Except as otherwise specified in this rule, the jury shall in all cases render
a verdict finding the defendant either guilty or
not guilty.
(b) Insanity verdicts. When the jury determines that a defendant is not guilty by reason of
insanity, the verdict shall so state. If the jury
returns a verdict of not guilty by reason of insanity, the court shall refer the matter to prosecutor's
office to pursue civil commitment of the defendant
Rule 22.4. Polling of the jury.
After the verdict is returned and before the
jury is discharged, the jury shall be polled at the
request of any party or upon the court's own
initiative. If the responses to the jurors do not
support the verdict, the court may direct them to
retire for further deliberations or they may be
discharged.
(Code 2012, § 5-31(rule 22.4); Ord. No. SRO-3952012, § 5-31(rule 22.4), 6-1-2012; Ord. No. SRO402-2012, § 5-31(rule 22.4), 5-30-2012)
*Note—At the present time, this Code does not contain
any offenses that distinguish the severity of the offense by use
of different degrees. This provision should be implemented if
this Code changes in the future to distinguish the severity of
an offense by use of different degrees.
†Note— At the present time, attempt to commit a crime is
not a lesser included offense. If this Code is amended to
include attempt as a lesser included crime, this rule should be
implemented.
CD5:38
RULES OF THE COMMUNITY COURT
(7)
Secs. 5-211—5-246. Reserved.
DIVISION 6. POST-TRIAL PROCEEDINGS
AND SENTENCING
Rule 23. Motions for new trial.
(a) Defendant's motion. Upon the defendant's
motion, the court may vacate any judgment and
grant a new trial if the interest of justice so
requires. If the case was tried without a jury, the
court may take additional testimony and enter a
new judgment.
(b) Grounds. The court may grant a new trial
for any of the following reasons:
(1)
The verdict is contrary to law or the
weight of the evidence;
(2)
The prosecutor was guilty of misconduct;
(3)
A juror(s) has been guilty of misconduct
by:
(4)
a.
Receiving evidence not properly admitted during the trial;
b.
Deciding verdict by lot;
c.
Perjuring himself/herself or willfully
failing to respond fully to a direct
question posed during the voir dire
examination;
d.
Receiving a bribe or pledging his or
her vote in any way;
e.
Becoming intoxicated during the
course of the trial or deliberations;
f.
Conversing before the verdict with
any interested party about the outcome of the case;
The court has erred in the decision of a
matter of law, or in the instruction of the
jury on a matter of law to the substantial
prejudice of a party;
(5)
Newly discovered evidence that was discovered after trial and the defendant had
exercised due diligence in securing the
newly discovered evidence prior to trial
and the evidence would have probably
changed the outcome of the trial;
(6)
The defendant did not receive a fair trial;
Art. IV, Rule 24.2
If the defendant was tried in absentia, the
defendant establishes by preponderance
of evidence that the defendant's absence
was not voluntary or was through no fault
of the defendant.
(c) Time to file based upon newly discovered
evidence. Any motion for a new trial grounded on
newly discovered evidence must be filed within
one year after the verdict or finding of guilty. If an
appeal is pending, the court may not grant a
motion for a new trial until the appellate court
confers jurisdiction back to the Community court.
(d) Other grounds. Any motion for a new trial
grounded on any reason other than newly discovered evidence must be filed within 30 days after
the verdict or finding of guilty, or within such
further time as the court sets during the 30-day
period.
(Code 2012, § 5-31(rule 23); Ord. No. SRO-3952012, § 5-31(rule 23), 6-1-2012; Ord. No. SRO-4022012, § 5-31(rule 23.1), 5-30-2012)
Rule 24.1. Motion to vacate sentence.
The defendant or the prosecutor may move to
vacate the sentence if no jurisdiction existed at
the time of the conviction or the conviction was
obtained in violation of the Community Constitution or laws. The parties shall have one year from
the entry of judgment under this rule to seek to
vacate the sentence.
(Code 2012, § 5-31(rule 24.1); Ord. No. SRO-3952012, § 5-31(rule 24.1), 6-1-2012; Ord. No. SRO402-2012, § 5-31(rule 24.1), 5-30-2012)
Rule 24.2. Motion to modify or correct sentence.
The court may correct any unlawful sentence
or one imposed in unlawful manner within 30
days of the entry of judgment and sentence after
giving notice to the parties. The court may correct
any clerical errors or mistakes with notice to
parties. Parties shall have 30 days to file objections to correction of any clerical errors or mistakes after receiving notice.
(Code 2012, § 5-31(rule 24.2); Ord. No. SRO-3952012, § 5-31(rule 24.2), 6-1-2012; Ord. No. SRO402-2012, § 5-31(rule 24.2), 5-30-2012)
CD5:39
Art. IV, Rule 25
COMMUNITY CODE OF ORDINANCES
Rule 25. Sealed proceedings and records.
(a) Public access. To ensure the public's perception of the integrity and fairness of the courts, the
public should have access to the court files. The
presumption may be overcome when a compelling
reason exists that the public's right of access is
outweighed by the interests of the Community
and the parties in protecting the court's files from
public review.
(b) Request for sealing of record or proceeding.
The court, any party, or any interested person
may request to seal or redact the court records. If
the court sets a hearing, a reasonable notice of a
hearing must be given to the parties. The court
may order the court files and records in the
proceeding, or any part thereof, to be sealed or
redacted if the court makes and enters written
findings that the specific sealing or redaction is
justified by identified compelling privacy or safety
concerns that outweigh the public interest.
(c) Access to sealed or redacted record. Sealed
and redacted court records shall not be accessible
to the public or unauthorized court personnel
without a court order. Sealed and redacted records shall be kept in a sealed envelope with
notice that access is allowed only with an order of
the court.
(Code 2012, § 5-31(rule 25); Ord. No. SRO-3952012, § 5-31(rule 25), 6-1-2012; Ord. No. SRO-4022012, § 5-31(rule 25), 5-30-2012)
Rule 26.1. Definitions for post-verdict proceedings.
(a) Judgment. The term "judgment" means the
adjudication of the court based upon the verdict of
the jury, upon the plea of the defendant, or upon
its own finding following a bench trial that the
defendant is guilty or not guilty.
(b) Sentence. The term "sentence" means the
pronouncement by the court of the penalty imposed upon the defendant after a judgment of
guilt.
(c) Determination of guilt. The term "determination of guilt" means a verdict of guilty by a jury,
a finding of guilt by the court following a bench
trial, or the acceptance of the plea of guilty or no
contest.
(Code 2012, § 5-31(rule 26.1); Ord. No. SRO-3952012, § 5-31(rule 26.1), 6-1-2012; Ord. No. SRO402-2012, § 5-31(rule 26.1), 5-30-2012)
Rule 26.2. Time for rendering judgment.
(a) Upon acquittal. When a defendant is acquitted of any charge, or of any count of any
charge, judgment pertaining to that count or to
that charge shall be pronounced and entered
immediately.
(b) Upon conviction. Upon a determination of
guilt on any charge, or on any count of any charge,
judgment pertaining to that count or to that
charge shall be pronounced and entered together
with the sentence.
(c) Factual determination. In the event the
trial court did not make an affirmative finding of
a factual basis for the plea pursuant to Rule 11,
before the entry of the judgment of guilt, the trial
court shall make such determination. One or
more of the following sources may be considered:
(1)
Statements made by the defendant;
(2)
Police reports; and
(3) Other satisfactory information.
(Code 2012, § 5-31(rule 26.2); Ord. No. SRO-3952012, § 5-31(rule 26.2), 6-1-2012; Ord. No. SRO402-2012, § 5-31(rule 26.2), 5-30-2012)
Rule 26.3. Date of sentencing; extension.
(a) Date of sentencing. Upon a determination
of guilt, the court may immediately proceed to
sentencing unless the court upon its own motion
or upon a request of the parties may set another
date for sentencing. The sentencing shall be held
within five days after determination of guilt except in cases where a presentence report is required by this Community Code of Ordinances.
The date may be extended for good cause.
(b) Extension of time. If a presentencing hearing is requested under Rule 26.6, or if good cause
is shown, the trial court may reset the date of
sentencing within 60 days after the determination of guilt.
(Code 2012, § 5-31(rule 26.3); Ord. No. SRO-3952012, § 5-31(rule 26.3), 6-1-2012; Ord. No. SRO402-2012, § 5-31(rule 26.3), 5-30-2012)
CD5:40
RULES OF THE COMMUNITY COURT
c.
Rule 26.4. Presentence report.
(a) When prepared. A presentence report shall
be prepared in all cases mandated by this Community Code of Ordinances. The court may require a presentence report in all cases in which it
has discretion over the penalty to be imposed. A
presentence report shall not be prepared until
after the determination of guilt has been made or
the defendant has entered a plea of guilty or no
contest. If a presentence report is ordered, the
sentencing date shall not be set earlier than 35
days after determination of guilt.
(b) When due. Except when a request under
Rule 26.3(a), has been granted, the presentence
report shall be delivered to the sentencing judge
and to parties at least ten calendar days before
the date set for sentencing.
(Code 2012, § 5-31(rule 26.4); Ord. No. SRO-3952012, § 5-31(rule 26.4), 6-1-2012; Ord. No. SRO402-2012, § 5-31(rule 26.4), 5-30-2012)
Verified information, stated in a
nonargumentative style, that assesses the
financial, social, psychological, and medical impact on any individual against whom
the offense has been committed; when
appropriate, the nature and extent of
nonincarceration programs and resources
available to the defendant;
(3)
When the law provides for restitution,
information sufficient for a restitution order; any other information that the court
requires.
(e) Exclusions. The presentence report must
exclude the following:
(a) In general. If ordered, the probation officer
must conduct a presentence investigation and
submit a report to the court before the court
imposes its sentence.
(c) Interviewing the defendant. The probation
officer who interviews a defendant as part of a
presentence investigation must, on request, give
the defendant's counsel reasonable notice of the
time and place of the interview and a reasonable
opportunity to attend the interview.
(1)
Any diagnoses that, if disclosed, might
seriously disrupt a rehabilitation program;
(2)
Any sources of information obtained upon
a promise of confidentiality; and
(3)
Any other information that, if disclosed,
might result in physical or other harm to
the defendant or others.
(f) Victim input. The probation officer shall
make reasonable efforts to obtain the views of the
victim regarding the offense and to obtain victim's
recommendation regarding sentencing. The victim's input shall be included in the presentence
report. If a victim is a juvenile, the probation
officer shall comply with the provisions of section
11-255.
(d) Presentence report. The presentence report
must contain the following information:
(1)
(g) Disclosing the report and recommendation.
(1)
Time to disclose. Unless the defendant
has consented in writing, the probation
officer must not submit a presentence
report to the court or disclose its contents
to anyone until the defendant has pleaded
guilty or no contest or has been found
guilty.
(2)
Sentence recommendation. If the probation officer makes a sentencing recommen-
The defendant's history and characteristics, including:
a.
Any verified criminal convictions of
the defendant regardless of the jurisdiction of the conviction;
b.
The defendant's financial condition;
and
Any circumstances affecting the defendant's behavior that may be helpful in imposing sentence or in correctional treatment;
(2)
Rule 26.5. Contents of the presentence report.
(b) Restitution. The probation officer must make
reasonable efforts to obtain restitution information and submit a report that contains sufficient
information for the court to order restitution.
Art. IV, Rule 26.5
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Art. IV, Rule 26.5
COMMUNITY CODE OF ORDINANCES
dation to the court, the sentencing recommendation shall be disclosed to the parties.
(Code 2012, § 5-31(rule 26.5); Ord. No. SRO-3952012, § 5-31(rule 26.5), 6-1-2012; Ord. No. SRO402-2012, § 5-31(rule 26.5), 5-30-2012)
Rules committee note to subsection (d)(1)(A) of this
rule. Under section 8-2, the court is required to consider
defendant's prior conduct in determining the sentence to be
imposed. Additionally, under section 8-6, the court is required
to consider the issues that may have contributed to the offense
conviction. The committee attempted to strike a balance by
only including verified criminal convictions and excluding
arrests that did not result in a conviction. The committee felt
that the judge should know the defendant's prior criminal
record, regardless of the jurisdiction of the conviction, to
ensure that the needs of the defendant will be addressed and
to protect the Community. A judge may presume the accuracy
of verified criminal conviction records unless rebutted by the
party opposing the use of the criminal conviction.
pared under Rule 26.5. The party shall state the
reason and any applicable authority for the objection.
(b) Special duty of the prosecutor. The prosecutor shall disclose any information upon discovery
by the prosecutor, if not already disclosed, which
would tend to reduce the punishment to be imposed.
(c) Corrections to presentence report. In the
event that the court sustains any objections to the
contents of a presentence report, the court may
take such action as it deems appropriate under
the circumstances, including, but not limited to:
Rule 26.6. Request for aggravation or mitigation hearing.
(a) Request for a presentencing hearing. When
the court has discretion as to the penalty to be
imposed, it may on its own initiative, and shall on
the request of any party, hold a presentencing
hearing at any time prior to sentencing to consider any mitigating or aggravating information.
(b) Nature, time and purpose of the presentencing hearing. A presentencing hearing shall not be
held until the parties have had an opportunity to
examine any reports prepared under Rules 26.4
and 26.5. At the hearing, any party may introduce
any reliable, relevant evidence, including hearsay, in order to show aggravating or mitigating
circumstances, to show why sentence should not
be imposed, or to correct or amplify the presentence,
diagnostic or mental health reports, the hearing
shall be held in open court and a complete record
of the proceedings made.
(Code 2012, § 5-31(rule 26.6); Ord. No. SRO-3952012, § 5-31(rule 26.6), 6-1-2012; Ord. No. SRO402-2012, § 5-31(rule 26.6), 5-30-2012)
Rule 26.7. Notice of objections; special duty
of the prosecutor; corrections to
presentence report.
(a) Notice of objections. Prior to sentencing or
presentence hearing, each party shall notify the
court and all other parties of any objection it has
to the contents of any presentence report pre-
(1)
Excision of objectionable language or sections of the report.
(2)
Ordering a new presentence report with
specific instructions and directions.
(3)
Directing a new presentence report to be
prepared by a different probation officer.
(4)
Directing the probation officer to make
corrections to the presentence report.
(d) Disclosure of corrected presentence report.
If the court exercises its authority under subsection (c) of this rule, the probation officer shall
disclose the new, excised, corrected, or amended
presentence report to the parties within ten calendar days of the court's order. Parties shall have
three calendar days to file any objections to the
new, excised, corrected, or amended presentence
report.
(Code 2012, § 5-31(rule 26.7); Ord. No. SRO-3952012, § 5-31(rule 26.7), 6-1-2012; Ord. No. SRO402-2012, § 5-31(rule 26.7), 5-30-2012)
Rule 26.8. Presence of the defendant.
The defendant has a right to be present at the
presentence hearing and shall be present at sentencing unless a defendant has requested a resolution of his or her case under Rule 9.2.
(Code 2012, § 5-31(rule 26.8); Ord. No. SRO-3952012, § 5-31(rule 26.8), 6-1-2012; Ord. No. SRO402-2012, § 5-31(rule 26.8), 5-30-2012)
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RULES OF THE COMMUNITY COURT
(2)
Rule 26.9. Pronouncement of judgment and
sentence.
Right to assistance of counsel.
a.
(a) Pronouncement of judgment. In pronouncing judgment, the court shall set forth the defendant's plea, the offense of which the defendant
was convicted or found guilty, and a determination of whether any sentencing enhancements are
applicable.
(b) Pronouncement of sentence. The court shall:
(1)
Give the defendant an opportunity to speak
on his or her own behalf;
(2)
State that it has considered the time the
defendant has spent in custody, if any, on
the present charge;
(3)
Explain to the defendant the terms of the
sentence or probation;
(4)
Specify the commencement date for the
term of imprisonment and any presentence
incarceration time that should be credited
towards the sentence imposed;
(5)
Direct the clerk of court to send to the
Community department of corrections or
probation office the sentencing order; and
(6)
Issue a written judgment within three
calendar days of sentencing.
(c) Sentencing policy. The court should impose
a sentence consistent with the policy set forth in
chapter 8.
(Code 2012, § 5-31(rule 26.9); Ord. No. SRO-3952012, § 5-31(rule 26.9), 6-1-2012; Ord. No. SRO402-2012, § 5-31(rule 26.9), 5-30-2012)
Rule 26.10. Duty of the court after pronouncing sentence.
After trial, the court shall, in pronouncing
judgment and sentence:
(1)
Appeal rights. Inform the defendant of his
or her right to appeal from the judgment,
sentence or both within the time limits
established in this Community Code of
Ordinances after the entry of judgment
and advise the defendant that failure to
file a timely appeal will result in the loss
of the right to appeal.
Art. IV, Rule 26.11
Own expense. If the sentence of imprisonment is one year or less for
each offense of conviction, the court
shall advise the defendant that the
defendant has the right to retain
counsel at the defendant's own expense.
b.
Appointed counsel. If the sentence of
imprisonment is more than one year
for each offense of conviction, the
court shall advise the defendant that
the defendant has a right to an assistance of attorney and if the defendant is unable to obtain an attorney
at the defendant's own expense, an
attorney will be appointed on behalf
of the defendant.*
(Code 2012, § 5-31(rule 26.10); Ord. No. SRO-3952012, § 5-31(rule 26.10), 6-1-2012; Ord. No. SRO402-2012, § 5-31(rule 26.10), 5-30-2012)
Rule 26.11. Fines and restitution.
(a) Method of payment; installments. The court
may permit payment of any fine or restitution, or
both, to be made within a specified period of time
or in specified installments. Restitution shall be
payable as promptly as possible in light of the
defendant's ability to pay.
(b) Method of payment; to whom. The payment
of a fine, restitution, or both shall be made to the
court, unless the court expressly directs otherwise. Monies received from the defendant shall be
applied first to satisfy the restitution order and
the payment of any restitution in arrears. The
court or the agency or person authorized by the
Community to accept payments should, as promptly
as practicable, forward restitution payments to
the victim.
(c) Action upon failure to pay a fine.
(1)
For defendants not on probation. If a
defendant fails to pay a fine or any installment thereof within the prescribed time,
the agency or person authorized to accept
*Note—Enactment of SRO-418-2013 unreserved subsection (2)b of this rule.
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Art. IV, Rule 26.11
COMMUNITY CODE OF ORDINANCES
payments shall, within five days, notify
the prosecutor and the Community court.
(2)
For defendants on probation. If a defendant on probation fails to pay a fine,
restitution or any installment thereof
within the prescribed time, the agency or
person authorized to accept payments shall
give notice of such delinquency to the
defendant's probation officer within five
days of the failure to make payments.
Court action upon failure of defendant not
on probation to pay fine or restitution.
Upon the defendant's failure to pay a fine
or restitution, the court shall require the
defendant to show cause why said defendant should not be held in contempt of
court and may issue a summons or a
warrant for the defendant's arrest.
(Code 2012, § 5-31(rule 26.11); Ord. No. SRO-3952012, § 5-31(rule 26.11), 6-1-2012; Ord. No. SRO402-2012, § 5-31(rule 26.11), 5-30-2012)
Rule 26.13. Entry of judgment and sentence.
The judgment of conviction and sentence shall
be complete and valid as of the time of their oral
pronouncement in open court. If the written judgment differs from oral pronouncement, the oral
pronouncement shall control unless the sentences
has been modified or corrected pursuant to Rules
24.1 and 24.2.
(Code 2012, § 5-31(rule 26.13); Ord. No. SRO-3952012, § 5-31(rule 26.13), 6-1-2012; Ord. No. SRO402-2012, § 5-31(rule 26.13), 5-30-2012)
(3)
Rule 26.12. Resentencing.
Where a judgment or sentence, or both have
been set aside on appeal or on a post-trial motion,
the court may not impose a sentence for the same
offense, or a different offense based on the same
conduct, which is more severe than the prior
sentence unless:
(1)
It concludes, on the basis of evidence
concerning conduct by the defendant occurring after the original sentencing proceeding, that the prior sentence is inappropriate;
(2)
The original sentence was unlawful and
on remand it is corrected and a lawful
sentence imposed; or
Secs. 5-247—5-289. Reserved.
DIVISION 7. PROBATION AND PAROLE
Rule 27.1. Manner of imposing probation
and parole.
(a) Probation. The sentencing court may impose on a probationer such conditions that will
promote rehabilitation. In addition, the appropriate probation officer or other person designated by
the court may impose on the probationer regulations which are necessary to implement the conditions imposed by the court and are not inconsistent with them. All conditions and regulations
shall be in writing, and a copy of them given to the
probationer. The probationer shall sign an acknowledgment of conditions and regulations of
probation at the time of sentencing.
Other circumstances exist under which
there is no reasonable likelihood that the
increase in the sentence is the product of
actual vindictiveness by the sentencing
judge.
(Code 2012, § 5-31(rule 26.12); Ord. No. SRO-3952012, § 5-31(rule 26.12), 6-1-2012; Ord. No. SRO402-2012, § 5-31(rule 26.12), 5-30-2012)
(1)
Probation conditions shall be imposed to
assist persons convicted to address the
issues that may have contributed to the
conviction. Conditions may include, but
shall not be limited to: counseling and
treatment for drug abuse, alcohol abuse,
and/or other issues that may affect criminal behaviors. Probation conditions shall
be reasonably related to the offender's
conviction, the safety of the Community,
and the rehabilitation of the offender.
(2)
The length of probation may be for a
period of time that exceeds the possible
time for incarceration. The length of the
probation term shall be as long as necessary to address any of the issues that may
have contributed to the conviction, but
(3)
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RULES OF THE COMMUNITY COURT
Art. IV, Rule 27.3
(1)
Any person sentenced to incarceration by
the Community court who is eligible for
parole, under chapter 8, may petition the
court for parole by filing a request for
parole with the clerk of the court.
(b) Time for request. At any time prior to
absolute discharge, a probationer, probation officer, counsel for the defendant, or prosecutor may
request the sentencing court to modify or clarify
any condition or regulation. Additionally, persons
entitled to restitution pursuant to a court order,
based upon a change of circumstances, may request the sentencing court at any time prior to
absolute discharge to modify the manner in which
restitution is paid.
(2)
A judge of the Community court must
conduct a hearing prior to issuing any
order granting parole. No parole shall be
granted without an order bearing the signature of the judge of the Community
court. The prosecutor and the victim shall
have an opportunity to address the court
prior to any grant of parole. The court
shall notify the prosecutor and the victim
at least five business days prior to the
hearing.
(c) Hearing. The court may, where appropriate, hold a hearing on any request for modification or clarification. The court should hold a
hearing on the requests for modification if it
would adversely affect the probationer. The court
also may accept a probationer's written consent to
an adverse modification of the terms of probation
without a hearing. A probationer is not entitled to
a hearing if the modification is in the defendant's
favor or the request is for a clarification of the
terms of probation.
(3)
Parole shall be supervised by a probation
officer and conditions of parole shall be
imposed consistent with chapter 8.
(d) Acknowledgement. A written copy of any
modification or clarification shall be given to the
probationer.
(Code 2012, § 5-31(rule 27.2); Ord. No. SRO-3952012, § 5-31(rule 27.2), 6-1-2012; Ord. No. SRO402-2012, § 5-31(rule 27.2), 5-30-2012)
the length of probationary period shall
not exceed the maximum time permitted
under chapter 8.
(b) Parole eligibility and conditions.
(4)
Parole shall not be available to offenders
whose charged offense requires mandatory incarceration under this Community
Code of Ordinances. If a defendant is
serving multiple sentences of incarceration that have been ordered to serve consecutively, the defendant shall not be eligible for parole until the defendant has
served at least one-half of each of the
sentences that was imposed and the sentence imposed was not mandatory under
this Community Code of Ordinances.
(Code 2012, § 5-31(rule 27.1); Ord. No. SRO-3952012, § 5-31(rule 27.1), 6-1-2012; Ord. No. SRO402-2012, § 5-31(rule 27.1), 5-30-2012)
Rule 27.3. Early termination of probation
and no early termination of parole.
Rule 27.2. Modification and clarification of
conditions and regulations.
(a) Eligibility for early termination of probation. After having been placed on probation for
one-half of the term ordered and upon motion of
the probation officer, the prosecutor's
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