Title III – Criminal Code (2025)
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Title III – Criminal Code
Criminal Code of the Three Affiliated Tribes of the Fort Berthold Indian Reservation
This Act is called the Three Affiliated Tribes Criminal Code of the Fort Berthold Indian Reservation. It
was implemented beginning on July 1, 2025.
LEGISLATIVE HISTORY
Resolution # 25-172-FWF
3-1
3-1-1
Rules of Criminal Procedure
Scope
Except as otherwise provided by the Three Affiliated Tribes Tribal Code and section 3-1-37,
these rules govern the practice and procedure in all criminal proceedings in the Tribal courts of
the Fort Berthold Indian Reservation (or “Reservation”).
3-1-2
Purpose and Construction
These rules are intended to provide for the just determination of every criminal proceeding. They
shall be construed to secure simplicity in procedure, fairness in administration, and the
elimination of unjustifiable expense and delay.
3-1-3
Titles
These rules shall be known as the Three Affiliated Tribes Rules of Criminal Procedure and may
be cited as T.A.T.R. Crim.P.
3-1-4
3-1-4.1
Complaint
General
All criminal prosecutions for violation of Tribal law shall be initiated by a complaint. The
complaint is a written statement of the essential facts constituting the offense charged.
a Contents:
(i) The name of the jurisdiction where it is filed;
(ii) The names of the person(s) complained of, if the defendant(s) name is known, and
if not, then such name(s) as may be given by the complainant;
(iii) A written statement of the complainant describing in ordinary language the nature
of the offense committed, including the time, and place as near as may be
ascertained; and
(iv) The section of the Tribal Code allegedly violated.
b Filing: The completed complaint must be filed by the Tribal prosecutor with the clerk
of court who shall mark thereon the date and time of filing.
c Amendment: The judge may permit a complaint to be amended at any time before a
finding or verdict if no additional or different offense is charged and if substantial
rights of the defendant are not prejudiced.
3-1-5
3-1-5.1
Arrest Warrant or Summons Upon Complaint
Written Warrant
If it appears to the Tribal court judge or magistrate judge from the complaint, and from any
affidavit filed with the complaint that there is probable cause to believe a criminal offense has
been committed by the defendant, a warrant for the arrest of the defendant upon the complaint
may be issued directing any authorized law enforcement officer to execute it. The finding of
probable cause must be based upon evidence, which may be hearsay in whole or in part, provided
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there is a substantial basis for believing the source of the hearsay to be credible and for believing
that there is a factual basis for the information furnished. The Tribal court judge or magistrate
judge shall deny the issuance of a warrant if he finds that there is not probable cause to believe
that the offense charged has been committed by the named accused.
3-1-5.2
Telephonic Warrant
The Tribal court judge or magistrate judge may consider information communicated by
telephone or other reliable electronic means when reviewing a complaint or deciding whether to
issue a warrant or summons. If the Tribal court judge or magistrate judge decides to proceed
under this rule, the following procedures apply:
a The Tribal court judge or magistrate judge must place the applicant under oath and
may examine the applicant and any person on whose testimony the application is based.
b If the applicant does no more than attest to the contents of a written declaration
submitted by reliable electronic means, the Tribal court judge or magistrate judge must
acknowledge the attestation in writing on declaration. If the Tribal court judge or
magistrate judge considers additional testimony or exhibits, the Tribal court judge or
magistrate judge must:
(i) Ensure the testimony is recorded verbatim by electronic recording device, by court
reporter or recorder, or in writing;
(ii) Ensure any recording or notes are filed, transcribed on request, and any
transcription is certified as accurate;
(iii) Sign any other written record and ensure it is certified as accurate and filed; and
(iv) Ensure the exhibits are filed.
c The applicant must prepare a proposed duplicate original of a complaint, warrant, or
summons, and must read or otherwise transmit its contents verbatim to the Tribal court
judge or magistrate judge.
d If the applicant reads the contents of the proposed duplicate original, the Tribal court
judge or magistrate judge must enter those contents into an original complaint, warrant,
or summons. If the applicant transmits the contents by reliable electronic means, the
transmission received by the Tribal court judge or magistrate judge may serve as the
original.
e The Tribal court judge or magistrate judge may modify the complaint, warrant, or
summons. The Tribal court judge or magistrate judge must then:
(i) Transmit the modified version to the applicant by reliable electronic means; or
(ii) File the modified version and direct the applicant to modify the proposed duplicate
original accordingly.
f To issue the warrant or summons, the Tribal court judge or magistrate judge must:
(i) Sign the original documents;
(ii) Enter the date and time of issuance on the warrant or summons; and
(iii) Transmit the warrant or summons by reliable electronic means to the applicant or
direct the applicant to sign the Tribal court judge or magistrate judge’s name and
enter date and time on the duplicate original.
g Absent a finding of bad faith, evidence obtained from a warrant issued under this rule
is not subject to suppression on the grounds that issuing the warrant in this manner was
unreasonable under the circumstances.
3-1-5.3
Summons
A summons may be issued in lieu of a warrant if the Tribal court judge or magistrate judge has
reason to believe that the named accused will appear in response to it.
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a
3-1-5.4
Form
a
b
3-1-5.5
Failure of Defendant to Appear After Summons - If a defendant who has been duly
summoned fails to appear, or if there is reasonable cause to believe that he will fail to
appear, a warrant of arrest shall be issued.
Warrant – The warrant shall be in writing, in the name of the Three Affiliated Tribes
of the Fort Berthold Indian Reservation and shall be signed by the issuing Tribal court
judge or magistrate judge. It shall state:
(i) The defendant’s name or, if unknown, a name or description by which the
defendant can be identified with reasonable certainty and address, if known, of the
accused who is to be arrested;
(ii) The date and place of issuance;
(iii) The description of the offense charged;
(iv) A command that the defendant be arrested and brought before the nearest available
Tribal court judge or magistrate judge;
(v) The name and title of the issuing judicial officer with a legible signature; and
(vi) It may also have endorsed upon it the amount of bail recommended or accepted.
Summons – The summons shall be in the same form as the warrant except that it shall
summon the defendant to appear before the person issuing it, or another person therein
designated at a stated time and place and shall inform the defendant that if he fails to
appear, a warrant for his arrest shall be issued.
Execution of Service
a Execution of Warrant – The warrant shall be directed to law enforcement officers of
the Three Affiliated Tribes, and any authorized law enforcement jurisdiction which has
been granted such authority by the Tribal Business Council or outside the Reservation
to any law enforcement officer and shall be executed only by a law enforcement officer.
It shall be executed by the arrest of the defendant and may be executed any place upon
the Reservation by a law enforcement officer authorized to act within the Reservation
and elsewhere by any law enforcement officer authorized to act in the place of arrest.
The officer need not have the warrant in his possession at the time of arrest, but if he
has the warrant or a copy thereof at the time, he shall show it to the defendant
immediately upon request. If the officer does not have the warrant or a copy thereof in
his possession at the time of arrest, he shall inform the defendant of the offense charged
and of the fact that a warrant has been issued, and upon request he shall show the
warrant or a copy thereof to the defendant as soon as possible.
b Service of Summons – The summons shall be served as follows:
(i) By leaving a copy personally with the defendant, or
(ii) Mailing a copy of the same to the defendant at his known address at least fourteen
(14) days prior to the stated date of his appearance, or
(iii) By leaving a copy, with a member of his household who is over the age of eighteen
(18) years, at his place of residence.
(iv) The summons may be served by any person over the age of eighteen (18) years.
c Return – The person executing the warrant or summons shall make a return thereof to
the designated Tribal court judge or magistrate judge before whom the defendant is
brought or ordered to appear. An unexecuted warrant or summons shall be returned to
the Tribal court judge or magistrate judge who may either cancel the same or receive
it.
No person arrested under a warrant or appearing in response to a summons shall be
discharged from custody or dismissed because of any informality in the warrant or
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summons, and the warrant or summons may be amended so as to remedy the
informality.
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3-1-6.1
Arrest
General
Arrest is the taking of a person into custody in order that he may be held to answer for a criminal
offense; and the taking of a person into custody in response to a citation for contempt to be held
to answer to the court for the same.
3-1-6.2
Authorized Arrest
No person shall be arrested upon the Reservation except by a law enforcement officer authorized
to make arrests therein and then only when:
a The officer shall have a warrant signed by a Tribal court judge or magistrate judge or
an authenticated copy of a warrant signed by a judge of a Court of the State of North
Dakota or of the United States, which has been presented to the Fort Berthold Tribal
Court for recognition and a Tribal court judge or magistrate judge thereafter does issue
a command for the arrest of such person, or the officer knows for a certainty that such
warrant has been issued;
b The offense shall have occurred in the presence of the arresting officer; or
c The officer shall have probable cause based upon reliable information that the person
to be arrested has committed an offense; or
d Pursuant to the provisions of Chapter 24, Domestic Violence and Covered Crimes,
subsection 3-24-17.1, Mandatory Arrest.
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3-1-7.1
Notification of Rights at Time of Arrest
Advice of Rights
Immediately upon arrest, or as soon thereafter as practice, the arrested person shall be advised
of the following rights:
a That he has the right to remain silent.
b That any statements made by him may be used against him in court.
c That he has the right to obtain counsel at his own expense. That if he does not wish to
obtain counsel at his own expense, he may obtain the services of the public defender
at no expense to himself.
d If he begins to answer questions or make statements, he may choose to stop the same
at any time.
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3-1-8.1
Initial Appearance Before the Tribal Court Judge or Magistrate Judge
General
An officer making an arrest shall take the arrested person without unnecessary delay before the
nearest available Tribal court judge or magistrate judge. If a person arrested without a warrant
is brought before the Tribal court judge or magistrate judge, a complaint shall be filed as soon
as reasonably possible. A copy of the complaint shall be given within a reasonable time to the
arrested person and to any Tribal court judge or magistrate judge before whom he is brought.
3-1-8.2
Statement by Tribal Court Judge or Magistrate Judge at the Initial Appearance
In all cases, the person arrested shall be informed of:
a The charge against him and of any accompanying affidavit;
b His right to remain silent;
c That any statement made by him may be later used against him;
d His right to advice of counsel before making any statement or answering any questions;
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e
f
g
h
i
His right to obtain the services of the public defender should he choose not to hire
counsel;
His right to be represented by his counsel at every stage of the proceedings;
His right to be admitted to bail pursuant to the provisions of section 3-1-9;
His right to a jury trial upon demand if he faces a penalty of incarceration; and
His right to appear and defend in person or by counsel.
The Tribal court judge or magistrate judge shall then set bail in accordance with the provisions
of section 3-1-9.
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3-1-9.1
Release from Custody
Release Prior to Trial
Any person charged with an offense shall, at his initial appearance before a Tribal court judge
or magistrate judge, be ordered released pending trial in his personal recognizance or upon the
execution of an unsecured appearance bond, unless the Tribal court judge or magistrate judge
determines, in the exercise of this discretion, that release will not reasonably assure the
appearance of the defendant as required. In that event the Tribal court judge or magistrate judge
may:
a Release him to the custody of a designated person or organization agreeing to assure
the accused’s appearance.
b Release him upon reasonable restrictions on his travel, association, or place of
residence during the period of release.
c Release him upon the deposit of himself or others of bond, either cash or collateral, in
an amount specified by the Tribal court judge, magistrate judge or a bail schedule. The
Tribal court judge or magistrate judge, in his discretion, may require that the accused
post only a portion of the total bond, the full sum to become due if the accused fails to
appear as ordered.
d Release him upon any other condition deemed reasonably necessary to assure the
appearance of the accused as required.
e A person may be held and not released if the person is under the influence of drugs or
alcohol and the Tribal court judge or magistrate judge finds the person may be a danger
to himself or others if released.
f In determining which conditions of release will reasonably assure appearance, the
Tribal court judge or magistrate judge, on the basis of available information, shall take
into account the nature and circumstance of the offense charged, the weight of the
evidence against the accused, the accused’s family ties, employment, financial
resources, character and mental condition, the length of his residence in the
community, his record of convictions, and his record of appearance at court
proceedings or of flight to avoid prosecution or failure to appear voluntarily at court
proceedings.
3-1-9.2
Conditions Upon Release
The conditions imposed upon release shall be entered upon an appropriate order and the
defendant shall be informed of the fact that a warrant for his arrest will be issued immediately
upon any violation of the same.
3-1-9.3
Review by Court if Detention Continues
A person for whom conditions of release are imposed and who after 48 hours from the time of
initial appearance continues to be detained as a result of his inability to meet the conditions of
release, shall be entitled, upon request, to have the conditions reviewed by a Tribal court judge
or magistrate judge.
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3-1-9.4
Amendment of Release Conditions
A Tribal court judge or magistrate judge ordering the release of a person on any conditions
specified in this section may at any time amend his order to impose additional or different
conditions of release.
3-1-9.5
Disposition by Forfeiture of Collateral Security
This section shall not be construed to prevent the disposition of any case or class of cases by
forfeiture of collateral security where that disposition is authorized by the court.
3-1-9.6
Release During Trial
A person released before trial shall continue on release during trial under the same terms and
conditions as were previously imposed unless the court determines that other terms or conditions
or termination of release are necessary to assure his presence during trial or to assure that his
conduct will not obstruct the orderly and expeditious progress of the trial.
3-1-9.7
Release Pending Appeal
Application for release after judgment of conviction shall be made in the first instance in the
trial court. If the trial court refuses to release pending appeal, or imposes conditions of release,
the court shall state in writing the reasons for such action taken. Thereafter, if an appeal is
pending, a motion for release, or for modification of the conditions of release, pending review
may be made to the MHA Supreme Court or one of the justices thereof. The motion shall be
determined promptly upon such papers, affidavits, and portions of the record as the parties shall
present and after reasonable notice to the appellee. The MHA Supreme Court or a justice thereof
may order the release of the appellant pending disposition of the motion.
3-1-9.8
Forfeiture of Bail
a Declaration – If there is a breach of condition of a bond, before the court shall declare
a forfeiture of the bail, the defendant must be afforded an opportunity to respond to the
revocation request.
b The court may direct that a forfeiture be set aside if it appears that justice does not
require the enforcement of the forfeiture.
c Enforcement – If a forfeiture has not been set aside, the court shall enter a judgment of
default and execution may issue thereon. By entering into a bond, the obligors submit
to the jurisdiction of the Tribal court and irrevocably appoint the clerk of Tribal court
as their agent upon whom any papers affecting their liability may be served. Their
liability may be enforced without the necessity of an independent action after service
of notice by mail at the obligor’s last-known address.
3-1-9.9
Exoneration
Exoneration of bail is the termination of the obligation of bail pending final disposition of the
case. Exoneration of bail occurs under the following circumstances:
a The defendant is found mentally incompetent to stand trial; or
b The case is dismissed; or
c The defendant is acquitted after a trial; or
d The defendant is found guilty after a trial; and
e If the defendant is the depositor of the bail and is adjudged guilty of the offense, if the
judgment of the court includes a fine, the bail may be applied toward payment of the
fine.
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3-1-9.10
Supervision of Detention
The court shall supervise the detention of the defendant pending trial, for the purpose of
preventing all unnecessary detention.
3-1-9.11
Release on Bail by Law Enforcement Officer
Any law enforcement officer authorized to do so by the court may admit an arrested person to
bail pursuant to the bail schedule or release upon personal recognizance. Police shall have
available a bail schedule prepared by the court which shall be used for setting bond where such
conditions of release are authorized but the court. Any police officer who refuses to release an
accused on bail shall bring such accused before a Tribal court judge or magistrate judge for
review at the first available opportunity without unnecessary delay.
3-1-10
3-1-10.1
Joinder of Offenses and Defendants
Joinder of Offenses
Two or more offenses may be charged in the same complaint with a separate count for each
offense if the offenses charged are of the same or similar character or are based upon the same
act or transaction or on two or more acts or transactions connected or constituting parts of the
common scheme or plan.
3-1-10.2
Joinder of Defendants
Two or more defendants may be charged in the same complaint if they are alleged to have
participated in the same act or transaction or in the same series or acts or transactions constituting
one or more offenses. Such defendants may be charged in one or more counts together or
separately and all the defendants need not be charged in each count.
3-1-11
3-1-11.1
Arraignment
General
The arraignment is bringing of an accused before the court, informing him of his rights and of
the charge against him, receiving his plea, and setting bail as appropriate in accordance with
section 3-1-9.
3-1-11.2
Where and How Held
The arraignment shall be held in open court without unnecessary delay after the accused is taken
into custody or after the initial appearance if appropriate, and in no instance shall the
arraignment be later than the next regularly scheduled session of court in cases where the
defendant has not met the conditions of release ordered pursuant to section 3-1-9.
3-1-11.3
Rights of Accused
At the arraignment, the accused shall be informed of:
a Those rights as set out in subsection 3-1-8.2;
b The rights to enter a plea of guilty or not guilty to the charge against him; and
c Before an accused is required to plead to any criminal charge, the Tribal court judge
or magistrate judge shall:
(i) Read the complaint to the accused and determine that he understands the same and
the section of the Tribal Code which he is charged with violating, including the
maximum authorized penalty; and
(ii) Advise the accused that the arraignment will be postponed should he desire to
consult with counsel.
d The accused may waive reading of the complaint.
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3-1-11.4 Receipt of Plea at Arraignment
a If the defendant refuses to plead, the court shall enter a plea of not guilty. When a
defendant has entered a plea of not guilty or when the court has entered a plea of not
guilty for him, the Tribal court judge or magistrate judge shall then inform him of a
pre-trial date or preliminary hearing date in the event of a felony charge and set
conditions of bail prior to trial.
b If the accused pleads “guilty” to the charge, the judge or magistrate judge shall not
accept the plea without first determining that:
(i) The defendant understands that by entering a plea of guilty, he waives his right to
further trial of any kind, his right to confront his accuser, his right to remain silent
and his rights against self-incrimination;
(ii) That the plea is voluntarily made and is not the result of threats, promise, or
coercion;
(iii) Whether the plea is a result of plea discussions made between the prosecuting
attorney and the defendant or his attorney; and
(iv) That a basis in fact exists for the acceptance of the plea.
3-1-11.5
Plea Agreement Procedure
a The prosecuting attorney and the attorney for the defendant may engage in discussions
with a view toward reaching an agreement that, upon the entering of a plea of guilty to
a charged offense or to a lesser or related offense, the prosecuting attorney will move
for dismissal of other charges or will recommend or not oppose the imposition of a
particular sentence or will do both. The court shall not participate in any such
discussions.
b If a plea agreement has been reached by the parties which contemplates entry of a plea
of guilty in the expectation that a specific sentence will be imposed or that other
charges before the court will be dismissed, the parties shall disclose the same to the
court in open court at the time that the plea is offered. Thereupon the court may accept
or reject the agreement.
c If the court accepts the plea agreement, it shall inform the defendant that it may
integrate into the judgment and sentence the disposition called for in the plea
agreement or another disposition which may be more favorable to the defendant than
that provided for in the plea agreement.
d If the court rejects the plea agreement, it shall inform the parties of this fact, and afford
the defendant the opportunity to withdraw his plea, advise the defendant that if he
persists in his guilty plea, the disposition of the case may be less favorable to the
defendant than that contemplated by the plea agreement.
e If a plea discussion does not result in a plea of guilty, or if a plea of guilty is not
accepted or withdrawn, or if judgment on a plea of guilty is reversed on review, neither
the plea discussion nor any resulting plea, agreement, or reversed judgment shall be
admissible in any subsequent proceeding of this charge whether criminal, civil, or
administrative.
3-1-11.6
Judgment after Acceptance of Plea
If the Tribal court judge or magistrate judge accepts the guilty plea of the defendant, he may
thereupon impose sentence and enter judgment or he may defer sentencing for a reasonable time
to obtain any information he deems necessary for the imposition of a just sentence. In every
case, the defendant shall be afforded an opportunity to inform the court of facts in mitigation of
the sentence and to address the court personally by way of allocution.
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If the charge of the complaint is for an offense listed in Chapter 3-24, Domestic Violence and
Covered Crimes, before final disposition in the case, the court must make certain compliance
with the victim rights as listed in subsection 3-24-21.1 have been provided to the victim.
3-1-11.7
Guilty Plea by Defendant Only
In no case shall a plea of guilty be put in by anyone except the defendant himself in open court.
3-1-12
3-1-12.1
Withdrawal of Plea
Discretion to Withdraw Plea
The court may, in its discretion, allow a defendant to withdraw a plea and enter a different plea
whenever it appears that the interest of justice and fairness would be served by doing so.
3-1-13
3-1-13.1
Pleadings and Before Trial
Pleadings
Pleadings in criminal proceedings shall be the complaint and the plea of not guilty, nolo
contendere (no contest), or guilty.
3-1-13.2
Motion for Lack of Jurisdiction
A motion that the court lacks jurisdiction may be made at any time while the case is pending.
3-1-13.3
Pretrial Motions
The following defenses, objections, and requests must be raised by pretrial motion if the basis
for the motion is then readily available, and the motion can be determined without a trial on the
merits:
a A defect in the institution of the prosecution, including:
(i) Improver venue;
(ii) Charging delay;
(iii) A violation of the right to speedy trial;
(iv) Selective or vindictive prosecution; or
(v) An error in the preliminary hearing, for felony charges.
b A defect in the complaint, including:
(i) Joining two or more offenses in the same count (duplicity);
(ii) Charging the same offense in more than one count (multiplicity);
(iii) Lack of specificity;
(iv) Improper joinder; and
(v) Failure to state an offense.
c Suppression of evidence.
d Severance of charges or defendants under section 3-1-14.
e Discovery under section 3-1-17.
3-1-13.4
Notice of Intention to Use Evidence
At the arraignment or as soon afterward as practicable:
a The Tribal prosecutor may notify the defendant of its intent to use specified evidence
at trial in order to afford the defendant an opportunity to object before the trial pursuant
to subsection 3-1-13.3(c).
b The defendant may have an opportunity to move to suppress evidence under subsection
3-1-13.3(c), request notice of the prosecution’s intent to use in its evidence-in-chief at
trial, any evidence that the defendant may be entitled to discover under section 3-1-17.
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3-1-13.5 Notice of Alibi Defense
A defendant who intends to offer an alibi defense must serve written notice on the prosecuting
attorney of any intended alibi defense and file the notice within the time provided for the making
of pretrial motions or afterwards as the court directs. The notice must state:
a Each specific place where the defendant claims to have been at the time of the alleged
offense; and the name, address, and telephone number, if any, of each witness on whom
the defendant intends to rely.
b If the defendant serves notice pursuant to this section, the prosecuting attorney must
disclose in writing to the defendant or the defendant’s attorney:
(i) The name, address, and telephone number, if any, of each witness the prosecution
intends to rely on to establish defendant’s presence at the scene of the alleged
offense; and
(ii) Each prosecution rebuttal witness to the defendant’s alibi defense.
c Unless the court directs otherwise, the prosecuting attorney must give its subsection 31-13.5(b) disclosure within fourteen (14) days after the defendant serves notice of an
intended alibi defense under subsection 3-1-13.5(a), but not later than fourteen (14)
days before trial.
d Both the defendant and the prosecuting attorney must promptly disclose in writing to
the other party the name, address, and telephone number, if any, of each additional
witness if:
(i) The disclosing party learns of the witness before or during the trial; and
(ii) The witness should have been disclosed under subsections 3-1-13.5(a) or (b) if the
disclosing party had known of the witness earlier.
e For good cause, the court may grant an exception to any requirement of subsection 31-13.5(a)-(d).
f 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 prohibit the
defendant’s right to testify.
g 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.
3-1-13.6
Notice of Lack of Criminal Responsibility by Reason of Mental Disease or Defect Defense
A defendant who intends to assert a defense of lack of criminal responsibility by reason of
mental disease or defect at the time of the alleged offense must so notify the prosecuting attorney
in writing and file notice within the time provided for filing a pretrial motion or at any later time
the court sets. A defendant who fails to do so cannot later rely on the defense of lack of criminal
responsibility. 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.
a 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 whether the
defendant had the mental state required for the offense charged, the defendant must,
within the time provided for filing pretrial motion or at any later time the court sets,
notify the prosecuting attorney in writing of this intention and file the notice. 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.
b In an appropriate case the court may, upon motion of the prosecuting attorney, order
the defendant to submit to an examination by one or more mental health professionals
retained by the Tribal government through the prosecuting attorney.
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c
d
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
based on the statement, and no other fruits of the statement may be admitted in
evidence against the accused in any criminal, civil, or administrative proceeding except
on an issue regarding mental condition on which the defendant has introduced
evidence.
If the defendant fails to give notice under subsection 3-1-13.6(a) or does not submit to
an examination when ordered under subsection 3-1-13.6(b), the court may exclude any
expert evidence from the defendant on the issue of the defendant’s mental disease,
mental defect, or any other mental condition bearing on the defendant’s guilt.
Evidence of an intention of which notice was given under subsections 3-1-13.6(a) or
(b), which is later withdrawn, is not, in any civil, criminal, or administrative
proceeding, admissible against the person who gave notice of the intention.
3-1-13.7
Motion Date
The court may, at the arraignment or as soon afterward as practicable, set a deadline for the
parties to make pretrial motions and may also schedule a motion hearing. At any time before the
trial, the court may extend the deadline for pretrial motions. If the court does not set one, the
deadline is the start of the trial.
3-1-13.8
Ruling on Motion
A motion before trial shall be determined before trial unless the court 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 determining a motion, the court
shall state its finding on the record.
3-1-13.9
Effect of Failure to Raise Defense or Objections
A failure to make the motions requested to be made prior to trial shall constitute a waiver thereof
unless the court for good cause shown grants relief from such waiver.
3-1-13.10 Records
All proceedings at the hearing, including the finds of fact and conclusions of law made orally,
shall be recorded verbatim.
3-1-13.11 Effect of Determination
If the court grants a motion based on a defect in instituting the prosecution or in the complaint,
it may order that the defendant be held in custody or that his bail be continued for a specified
time pending the filing of a new complaint.
3-1-14
3-1-14.1
Trial Joinder
Joinder of Complaints
The court may order two or more complaints to be tried together if the offenses and the
defendants, if there are more than one, could have been joined in a single complaint. The
procedure shall be the same as if the prosecution were under a single complaint. The court’s
order is discretionary.
3-1-14.2
Separate Trials for Defendants
If prejudice would result to the defendants or the prosecution, the court may order separate trials.
11
3-1-15
3-1-15.1
Relief from Prejudicial Joinder
Joinder of Offenses or Defendants
If the joinder of offenses or defendants in a complaint or consolidation for trial appears to
prejudice a defendant or prosecution, the court may order separate trial on the counts, sever the
defendants’ trials, or provide any other relief that justice requires.
3-1-15.2
Inspection of Evidentiary Use of Defendant’s Statement
Before ruling on a defendant’s motion to sever, the court may order the prosecuting attorney to
deliver to the court for in-camera inspection any defendant’s statements that the prosecution
intends to use as evidence.
3-1-16
3-1-16.1
Depositions
When Taken
At any time after the defendant has appeared, any party may take testimony of any person by
deposition including audio-visual depositions, except:
a The defendant may not be deposed unless the defendant consents and the defendant’s
lawyer, if the defendant has one, is present or the defendant waives the lawyer’s
presence.
b A discovery deposition may be taken after the time set by the court only with leave of
court.
c A deposition to perpetuate testimony may be taken only with leave of court, which
must be granted upon motion of any party if it appears that the deponent may be able
to give material testimony but may be unable to attend a trial or hearing.
d Upon a motion of a party or of the deponent and upon a showing that the taking of the
deposition does or will unreasonably annoy, embarrass, or oppress, or cause undue
burden or expense to, the deponent or a party, the court in which the prosecution is
pending may order that the deposition not be taken or continued or may limit the scope
and manner of its taking. Upon demand of the objecting party or deponent, the taking
of the deposition may be suspended for the time necessary to make the motion.
e A victim may refuse to participate in a deposition requested by the defendant or the
defendant’s attorney.
3-1-16.2
Motion to Perpetuate Testimony
If a party is granted leave to take a deposition to perpetuate testimony, the court, upon motion
of the party and a showing of probable cause to believe that the deponent would not respond to
a subpoena, by order must direct a law enforcement officer to take the deponent into custody
and hold the deponent until the taking of the deposition begins but shall not hold longer than six
(6) hours and then keep the deponent in custody during the taking of the deposition. If the
motion is by the prosecuting attorney, the court, upon further motion by the prosecuting attorney
and a showing of probable cause to believe the defendant would not otherwise attend the taking
of the deposition, may make the same order for the defendant.
3-1-16.3
Written Notice of Deposition
The party at whose instance the deposition is to be taken shall give all parties reasonable written
notice of the name and address of each person to be examined, the time and place for the
deposition and the manner of recording. Upon motion of a party or of the deponent, the court
may change the time, place, or manner of record.
3-1-16.4
Manner of Deposition
The deposition must be taken in the manner provided in civil actions.
12
3-1-16.5
Location of Deposition
The deposition must be taken at any location agreed upon by the parties or a location designated
by the court.
3-1-16.6 Presence of Defendant
a The defendant may be present at the taking of a discovery deposition, but if the
defendant is in custody, the defendant may be present only with leave of court.
b The defendant must be present at the taking of a deposition to perpetuate testimony,
but if the defendant’s counsel is present at the taking:
(i) The court may excuse the defendant from being present if the defendant appears
before the court and understandingly and voluntarily waives the right to be present.
(ii) The taking of the deposition may continue if the defendant, present when it
commenced, leaves voluntarily; or
(iii) If the deposition’s taking is presided over by a judicial officer, the judicial officer
may direct that the deposition’s taking, or part of the deposition’s taking be
conducted in the defendant’s absence if the judicial officer has justifiably excluded
the defendant because of the defendant’s disruptive conduct.
c If the defendant is not present at the commencement of the taking of the deposition to
perpetuate testimony and the defendant’s absence has not been excused:
(i) Its taking may proceed, in which case the deposition may be used only as a
discovery deposition; or
(ii) If the deposition is taken at the instance of the prosecution, the prosecuting attorney
may direct that commencement of its taking be postponed until the defendant’s
attendance can be obtained, and the court, upon application of the prosecuting
attorney, by order may direct a law enforcement officer to take the defendant into
custody during the taking of the deposition.
3-1-16.7
Payment of Deposition Costs
If the deposition is taken at the instance of the prosecution, the court may, and in all cases where
the defendant is unable to bear the expense, the court must direct the Tribal government to pay
the expense of the taking of the deposition, including the reasonable expenses of travel and
subsistence of defense counsel and, if the deposition is to perpetuate testimony or if the court
permits for a discovery deposition, of the defendant in attending the deposition.
3-1-16.8
Use of Deposition at Trial
So far as otherwise admissible under the rules of evidence, a deposition to perpetuate testimony
may be used as substantive evidence at the trial or upon any hearing if the deponent is
unavailable as defined in Fed. R. Ev. 804(a). A discovery deposition may then be used if the
court determines that the use is fair considering the nature and extent of the total examination at
the taking thereof, but it may be offered by the prosecution only if the defendant was present at
its taking. If only a part of a deposition is offered in evidence by a party, an adverse party may
require the offering of all of it that is relevant to the part offered.
3-1-16.9
Objections to Deposition
Objections to receiving in evidence a deposition or part of a deposition may be made as provided
in civil actions.
3-1-16.10 Agreement on Depositions
Nothing in this section precludes the taking of a deposition, orally or upon written questions, or
the use of a deposition, by agreement of the parties.
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3-1-17
3-1-17.1
Discovery and Inspection
Disclosure of Evidence by Prosecuting Attorney
Information subject to disclosure by the prosecuting attorney:
a Upon a defendant’s written request, the prosecuting attorney must disclose to the
defendant and make available for inspection, copying, or photographing all of the
following:
(i) Any relevant written or recorded statement by the defendant, if:
(i) The statement is within the prosecution’s possession, custody, or control; and
(ii) The prosecuting attorney knows, or through due diligence could know, that the
statement exists;
(ii) The portion of any written record containing the substance of any relevant oral
statement made before or after arrest if the defendant made the statement in
response to interrogation by a person the defendant knew to be an agent of state,
tribal or federal government.
(iii) The defendant’s recorded testimony in any judicial proceeding relating to the
charged offense; and
(iv) The substance of any other oral statement made by the defendant, before or after
arrest, in response to interrogation by a person the defendant knew to be an agent
of the state, tribal or federal government.
b Upon a defendant’s request, if the defendant is an organization such as a corporation,
partnership, association, or labor union, the prosecution must disclose to the defendant
any statements described in subsection 3-1-17.1(b) if the prosecution contends that the
person making the statement:
(i) Was legally able to bind the defendant regarding the subject of the statement
because of that person’s position as the defendant’s director, officer, employee, or
agent; or
(ii) Was personally involved in the alleged conduct because of that person’s position
as the defendant’s director, officer, employee, or agent.
c Upon a defendant's written request, the prosecution must furnish the defendant with a
copy of the defendant’s prior criminal record, if any, that is within the prosecution’s
possession, custody, or control if the prosecuting attorney knows, or through due
diligence could know, that the record exists.
d Upon a defendant’s written request, the prosecuting attorney must permit the defendant
to inspect and to copy or photograph books, papers, documents, data, photographs,
tangible objects, buildings, or places, or copies or portions of any of these items, if the
item is within the prosecution’s possession, custody, or control, and:
(i) The item is material to prepare the defense;
(ii) The prosecution intends to use the item in its case-in-chief at trial; or
(iii) The item was obtained from or belongs to the defendant.
e Upon the defendant’s written request, the prosecuting attorney must permit a defendant
to inspect and to copy or photograph the results or reports of any physical or mental
examinations, and of any scientific tests or experiments if:
(i) The item is within the prosecution’s possession, custody, or control;
(ii) The prosecuting attorney knows, or through due diligence could know, that the
item exists; and
(iii) The item is material to prepare the defense or the prosecution intends to use the
item in its case-in-chief at the trial.
f Upon the defendant’s written request, the prosecution must give to the defendant a
written summary of any testimony that the prosecution intends to use under
Fed.R.Ev.702, 703, or 705 during its case-in-chief at trial. If the prosecution requests
discovery under subsection 3-1-17.2(c) and the defendant complies, the prosecution
14
g
must, upon defendant’s written request, give to the defendant a written summary of
testimony that the prosecution intends to use under Fed.R.Ev.702, 703, or 705 as
evidence at trial on the issue of the defendant’s mental condition. Expert witness
summaries must describe the witness’s opinions, the bases and reasons for those
opinions, and the witness’s qualifications.
Except as provided in this section, this rule does not authorize the discovery or
inspection of reports, memoranda, or other internal prosecution documents made by an
attorney for the prosecution or other prosecution agent in connection with investigating
or prosecuting the case. Nor does this rule authorize discovery or inspection of
statements made by prosecution witnesses or prospective prosecution witnesses (other
than the defendant) to agents of the prosecution except as provided in subsection 3-117.4.
3-1-17.2
Defendant’s Disclosure of Evidence
Information subject to disclosure by the defendant:
a If a defendant, in writing, requests disclosure under subsection 3-1-17.1(d), and the
prosecution complies, then the defendant, upon written request of the prosecution, must
permit the prosecution to inspect and to copy or photograph books, papers, documents,
data, photographs, tangible objects, buildings or places, or copies or portions of any of
these items if:
(i) The item is within the defendant’s possession, custody, or control; and
(ii) The defendant intends to use the item in the defendant’s case-in-chief at trial.
b If a defendant, in writing, requests disclosure under subsection 3-1-17.1(e) and the
prosecution complies, the defendant, upon written request of the prosecution, must
permit the prosecution to inspect and to copy or photograph the results or reports of
any physical or mental examination and of any scientific test or experiment if:
(i) The item is within the defendant’s possession, custody, or control; and
(ii) The defendant intends to use the item in the defendant’s case-in-chief at trial or
intends to call the witness who prepared the report, and the report relates to the
witness’s testimony.
c The defendant must, upon written request of the prosecution, give to the prosecution a
written statement of any testimony that the defendant intends to use under
Fed.R.Ev.702, 703, or 705 as evidence at trial, if:
(i) The defendant requests disclosure under subsection 3-1-17.1(f) and the
prosecution complies; or
(ii) The defendant has given notice under subsection 3-1-13.6(a) with the intent to
present expert testimony on the defendant’s mental condition. This summary must
describe the witness’s opinions, bases and reasons for these opinions, and the
witness’s qualifications.
d Except for scientific or medical reports, this section does not authorize the discovery
or inspection of reports, memoranda, or other documents made by the defendant or the
defendant’s attorney or agent during the case’s investigation or defense or of
statements made to the defendant, or the defendant’s attorney or agent, by the
defendant, a prosecution or defense witness, or a prospective prosecution or defense
witness.
3-1-17.3
Continuing Duty to Disclose Evidence and Regulation by the Court
a A party who discovers additional evidence or material before or during trial must
promptly disclose its existence to the other party or the court if:
(i) The evidence or material is subject to discovery or inspection under this section;
and
15
b
c
d
3-1-17.4
(ii) The other party previously requested, or the court ordered, its production.
Regulating discovery by the court:
(i) At any time, the court may, for good cause, deny, restrict, or defer discovery or
inspection, or grant other appropriate relief.
(ii) Upon motion, the court may permit a party to show good cause by a written
statement that the court will inspect in-camera. If relief is granted following a
showing in-camera, the court must preserve the entire text of the party’s statement
under seal.
If a party fails to comply with subsection 3-1-17.3 or with an order issued under this
section, the court may:
(i) Order that party to permit the discovery or inspection, specify its time, place,
manner, and prescribe other just terms and conditions;
(ii) Grant a continuance of the trial;
(iii) Prohibit that party from introducing undisclosed evidence;
(iv) Relieve the requesting party from making disclosure required under this section;
or
(v) Enter any other order that is just under the circumstances.
Subsection 3-1-13.5 governs discovery of alibi witnesses.
Demand for Production of Names, Addresses, and Statements of Witnesses; Codefendant
Statements; and Statements of Other Persons
a Upon a defendant’s written request, the prosecution must furnish the defendant:
(i) A written list of the names and addresses of all prosecution witnesses that the
prosecution intends to call during its case-in-chief;
(ii) Any statements made by the listed prosecution witnesses; and
(iii) Any records of prior criminal convictions of the listed prosecution witnesses that
the prosecuting attorney knows, or through due diligence could know, that the
records exist.
b A prosecutor may not disclose victim contact information, including the address of the
victim, if the victim has requested nondisclosure. If a defendant makes a written
request for discovery of the names, addresses, and statements of witnesses, the
prosecuting attorney must be allowed to perpetuate the testimony of those witnesses
under subsection 3-1-16.2.
c Upon a defendant’s written request, the prosecution must permit the defendant to
inspect and to copy or photograph any relevant written or recorded confession,
admission, or statement of a codefendant, or copies of any of these items if:
(i) The item is within the prosecution’s possession, custody, or control; and
(ii) The prosecution knows, or through due diligence could know, that the item exists.
d Upon a defendant’s written request, the prosecution must permit the defendant to
inspect and to copy or photograph any relevant written or recorded statement of any
person if:
(i) The statement is within the prosecution’s possession, custody, or control;
(ii) The prosecuting attorney knows, or through due diligence could know, that the
statement exists; and
(iii) The statement is not available to the defendant under subsection 3-1-17.1 or 3-117.4(a) or (b).
e The term “statement” as used in Section 3-1-17.4 means:
(i) A written statement made by the witness, codefendant, or other person and signed
or otherwise adopted by the declarant; or
(ii) A stenographic, mechanical, electronic, or other record, or a transcription of a
record, which is a verbatim recital of an oral statement made by a witness,
16
codefendant, or other person to an agent of the prosecution and recorded
contemporaneously with the making of an oral statement.
3-1-18
3-1-18.1
Search Warrant Defined: Search and Seizure
Search Warrant
A search warrant is a written order, signed by a Tribal court judge or magistrate judge, directed
to a Tribal law enforcement officer, ordering him to conduct a search of a particular place, which
is described in the order, and to seize and take possession of the property described in the order.
3-1-18.2
Authority to Issue
Every Tribal court judge or magistrate judge shall have the power to issue search warrants for
the search and seizure of property and premise of any person under the jurisdiction of the court.
3-1-18.3
Property Which May Be Seized with a Warrant
A warrant may authorize the seizure of:
a Property that constitutes evidence of the commission of a criminal offense; or
b Contraband, the fruits of a crime, or things otherwise criminally possessed; or
c Property designed or intended for use, or which is or has been used as the means of
committing a criminal offense.
3-1-18.4
Issuance and Contents
No warrant shall be issued except upon probable cause. Said probable cause shall be supported
by written sworn statement of the applicant for said warrant and such others who have reliable
information supporting probable cause. The Tribal court judge or magistrate judge’s finding of
probable cause may be based upon hearsay in whole or in part.
3-1-18.5
Execution and Return with Inventory
The warrant shall be executed only by Tribal law enforcement officers. The officer taking
property under warrant shall give the person from whom or from whose premises the property
was taken a copy of the warrant and a receipt for the property taken, if he is present, or if not
present, shall leave a copy and receipt at the place from which the property was taken. The return
shall be made within the time limit shown on the warrant, which shall not be longer than ten
(10) days from the date of issuance and shall be accompanied by a written inventory of any
property seized. Warrants not returned within the time specified shall be void.
3-1-18.6
Motion for Return of Property
A person may make a motion to the trial court for the return of the property seized on the grounds
that he is entitled to lawful possession of the property and that the same was illegally seized.
The Tribal court judge or magistrate judge shall receive evidence on any issue of fact necessary
to the decision of the motion. If the motion is granted, the property shall be returned and shall
not be admissible as evidence at any hearing or trial. This motion shall be made before a
complaint has been filed, if made after a complaint is filed, it shall be treated as a motion to
suppress under section 3-1-13.3(c).
3-1-18.7
Return of Papers to Clerk
The Tribal court judge or magistrate judge before whom the warrant is returned shall attach to
the warrant a copy of the return, inventory, and all other papers in connection with the warrant
and shall file them with the clerk of the Tribal court.
3-1-19
Search Without Warrant
No Tribal officer shall conduct any search without a valid warrant except:
17
a
b
c
d
Incident to a lawful arrest;
With the consent of the person being searched;
Upon probable cause to believe that the person searched may be armed and dangerous;
or
When the search is of a motor vehicle and the officer has probable cause to believe that
it contains contraband, drugs, stolen or embezzled property.
3-1-20
3-1-20.1
Disposition of Seized Property
Return of Seized Property
After final judgment has been entered, unless a motion made pursuant to subsection 3-1-18.6
has been granted, the court shall hold a hearing to determine ownership of all property seized
by the police. Upon satisfactory proof of ownership, and after the time for appeal has passed,
the property shall be delivered to the owner unless such property is contraband or illegal to
possess in which case it shall be sold at public auction, retained for the use of the Tribe, or
destroyed.
3-1-21
3-1-21.1
Subpoena
For Attendance of Witness and Production of Evidence Form: Issuance
Every subpoena shall be issued by the Tribal court judge, magistrate judge, or the clerk of court
and shall state the name of the court and the title of the action and shall command each person
to whom it is directed to attend and bring with him what is demanded and give testimony at a
time and place specified therein.
A subpoena may be issued upon the request of any party or upon the court’s own initiative and
shall compel the attendance of a witness or the production of books, records, documents, or
other physical evidence necessary to the fair determination of the case and not an undue burden
on the person possessing the evidence.
3-1-21.2
Costs
Every witness answering a subpoena shall be entitled to a fee of fifteen (15) dollars for each day
his service is required by the court. In addition, the court may order payment of reasonable travel
expenses not to exceed the current established Tribal mileage rate and five (5) dollars per diem.
a The fees and expenses provided for in this section shall be paid by the defendant upon
completion of the trial if he requested the subpoena. If the Tribe requested the
subpoena, the fees and expenses incidental thereto may be taxed as costs against the
defendant if he is found guilty, provided that no defendant shall be incarcerated solely
because he is unable to pay such costs immediately.
b If the defendant is indigent, the fees and expenses provided for by this section shall be
paid by the Tribe and may be taxed at cost if the defendant is found guilty.
c Costs of production of books, documents and other physical evidence shall be as
allowed by the court and shall be borne by the party requesting the production of the
same.
3-1-21.3
Frivolous Requests
If the court finds that the subpoena was not requested in good faith but with a frivolous or
malicious intent it may order the requesting party to reimburse the Tribe for any expenses
incurred under this section and such order shall constitute a judgment upon which execution
may levy.
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3-1-21.4
Service
a A subpoena may be served at any place within or without the confines of the
Reservation, but any subpoena to be served outside the Reservation shall be issued by
a Tribal court judge or magistrate judge.
b A subpoena may be served by any Tribal police officer or other person designated by
the court for such purpose. Service shall be made by delivering a copy of the subpoena
to the person named or by leaving a copy at his place of residence with any competent
person sixteen (16) years of age or older who also resides there.
c Proof of service shall be filed with the clerk of court by noting on the subpoena the
date, time and place of service and the name of the person who served the subpoena.
3-1-21.5
Taking of Deposition
An order to take a deposition authorizes the issuance by the Tribal court judge or magistrate
judge of subpoenas for the person named or described therein. A witness whose deposition is to
be taken may be required by subpoena to attend any place designated by the trial court.
3-1-21.6
Contempt: Failure to Obey Subpoena
Failure of a person, in the absence of justification satisfactory to the court, may be deemed
contempt of the court from which the subpoena was issued, and a bench warrant may be issued
for his arrest.
3-1-22
3-1-22.1
Place of Trial
Where Trial Shall be Held
In all criminal prosecutions the trial shall be in the Tribal Courthouse in New Town, North
Dakota, or such other place as may be designated by the Tribal Business Council through
legislative authority.
3-1-23
Evidence
The Federal Rules of Evidence shall apply to all criminal proceedings in the Fort Berthold Tribal
Court.
3-1-24
3-1-24.1
Time for Jury Request
Request and Composition of Juries
A person charged with a crime which upon conviction has a potential jail sentence must request
a jury trial at the arraignment or submit a written request within thirty (30) days from the date
of arraignment. Juries shall be comprised of six (6) residents of the Reservation and as may be
required by law, non-Indian residents of the counties which are located in the Reservation.
3-1-24.2
When Jury Trial Not Required
If the court determines no jail sentence will be imposed, then no jury trial shall be required.
3-1-24.3
Trials Without Jury
In a trial held before a Tribal court judge or magistrate judge a general finding of guilty or not
guilty shall be made.
3-1-25
Jury Trial Selection – REPEALED (see Title 1, Chapter 2, Section 1- Jury Selection)
19
3-1-26
3-1-26.1
Sentencing and Judgment
Imposition of Sentence
Sentence shall be imposed, or other authorized disposition made without unreasonable delay.
Pending disposition, the court may commit the defendant or continue or alter the bail. Before
imposing sentence, the court shall:
a Afford counsel an opportunity to speak on behalf of the defendant, and
b Address the defendant personally to determine whether he wishes to make a statement
in his own behalf or wishes to present any information in mitigation of punishment or
which would require the court to withhold pronouncement of judgment or sentence; if
the defendant expresses a desire to do so, the court shall provide him with such
opportunity. The prosecution shall be given an opportunity to be heard on any matter
material to the imposition of sentence.
c In the event that the criminal charge is one under Chapter 24, Domestic Violence and
Covered Crimes, the court must adhere to victim rights provided in subsection 3-2421.1 before pronouncement of judgment or sentence.
3-1-26.2
Notification of Right to Appeal
After imposing sentence in a case which has gone to trial with a finding of guilty, the court shall
advise the defendant of his right to appeal. There shall be no duty on the court to advise the
defendant of any right to appeal after sentence is imposed following a plea of guilty.
3-1-26.3
Judgment
A judgment of conviction shall set forth the plea, the verdict, and the adjudication and sentence.
If the defendant is found not guilty or is entitled to be discharged, judgment shall be entered
accordingly. The judgment shall be signed by the Tribal court judge or magistrate judge and
entered by the clerk.
3-1-26.4
Presentence Investigation
All matters concerning presentence investigation rest within the sole discretion of the trial judge.
3-1-27
3-1-27.1
New Trial
Granting of New Trial
The court may, upon motion of the defendant, grant a new trial to prevent manifest injustice.
The motion must be made in writing and must specify the defects and errors complained of or
reason for the motion. A motion for new trial must be made within seven (7) days after verdict
or finding of guilt unless it is based upon newly discovered evidence, in which case it must be
made within thirty (30) days of said discovery and within two (2) years of final judgment.
3-1-28
3-1-28.1
Arrest of Judgment
Motion to Arrest Judgment
The court on motion of a defendant shall arrest judgment if:
a The complaint does not charge an offense; or
b The court was without jurisdiction of the offense charged.
3-1-28.2
Such motion must be made within seven (7) days of pronounced judgment.
3-1-29
3-1-29.1
Clerical Mistakes
Correction of Mistakes or Errors
Clerical mistakes in judgments, orders, or other parts of the record and errors in the record
arising from oversight or omission may be corrected by the court at any time and after such
notice, if any, as the court orders.
20
3-1-30
3-1-30.1
Probation
Applicability – Where a sentence of imprisonment has been imposed on a convicted offender,
the court may, in its discretion, suspend the serving of such sentence or a portion of such
sentence and release the person on probation under any reasonable conditions deemed
appropriate by the court, provided that the period of probation shall not exceed eighteen months.
3-1-30.2
Violation of Probation
Any person who violates the terms of his probation may be required by the court to serve the
sentence originally imposed or such part of it as the court may determine to be suitable giving
consideration to all the circumstances, provided that such revocation of probation shall not be
ordered without a hearing before the court at which the offender shall have the opportunity to
explain his actions.
3-1-31
3-1-31.1
Parole and Pardon
Tribal Parole and Pardon Board
The Chairman of Mandan, Hidatsa, Arikara (hereinafter “MHA”) Nation shall establish and
appoint an MHA Tribal Parole and Pardon Board (hereinafter “Board”) which shall be
comprised of three (3) members who shall serve a four (4) year term. The Board shall be
comprised of one (1) attorney of good standing licensed in any jurisdiction of the United States
and two (2) members of the Tribal membership at large. Additionally, one (1) alternate member
shall be appointed who shall serve in the event a conflict of interest causes a Board member to
be recused from consideration of the parole or pardon request.
a The Board will meet quarterly to review all parole and pardon requests;
b The Board must publish the dates of all scheduled meetings;
c All applications for parole or pardon of a Tribally imposed sentence must be submitted
to the Board forty-five (45) days prior to the scheduled meeting of the Board;
d The Board must notify the victim(s) of the scheduled meeting date on the application
of a convicted offender for which the person was a victim of the offense of conviction;
e The Board will consider all germane information regarding the conviction, including
new mitigating information regarding the conviction, the impact of substance abuse
and behavioral health issues and needs, the personal and social development and
achievements of the applicant, and any significant problems or circumstances the
applicant may be encountering due to the conviction;
f The Board shall have authority to review all documents on file with the Tribal court
regarding the crime of conviction; and
g The Board shall issue a recommendation to grant or deny the request for parole or
pardon which shall be submitted to the Tribal Business Council of the MHA Nation
who must concur or reject the recommendation by a majority vote.
3-1-31.2
Eligibility of Parole or Pardon
Any person sentenced to at least six months incarceration by the Tribal court to detention or
labor shall be eligible for parole or pardon after the person has served one-half (1/2) of the
sentence imposed by the Tribal court.
3-1-31.3
Violations of Parole or Pardon
Any person who violates the conditions of his parole or pardon may be required by the court to
serve the whole of the original sentence, provided that such revocation of parole or pardon shall
not be ordered without a hearing before the Board at which time the offender shall have the
opportunity to explain his actions.
21
3-1-32
3-1-32.1
Appeals
Filing the Notice of Appeal
An appeal from an order or final judgment of the Tribal court permitted as of right to the MHA
Supreme Court shall be taken by filing a notice of appeal with the clerk of the Tribal court within
the time allowed by subsection 3-1-32.2.
3-1-32.2
Time for Appeal: When Taken
The notice of appeal shall be filed within thirty (30) days after entry of the judgment or order
appealed from. If a motion is made pursuant to section 3-1-26 or section 3-1-27, notice of appeal
must be filed within ten (10) days after the entry of the order denying the motion. A judgment
or order is entered within the meaning of this subdivision when it is entered in the criminal
docket. The MHA Supreme Court may, in its discretion, extend the time for filing a notice of
appeal for a period not to exceed thirty (30) days from the expiration of the time prescribed by
this section.
3-1-32.3
Content of Notice of Appeal
The notice of appeal shall specify the party or parties taking the appeal, and shall designate the
verdict, judgment, or order or part thereof appealed from.
3-1-32.4
Service of Notice of Appeal
The clerk of MHA Supreme Court shall serve notice of the filing of the notice of appeal either
by personal service or by mail addressed to the parties. The clerk of MHA Supreme Court also
dockets the notice of appeal in the Tribal appeals court docket. The clerk of MHA Supreme
Court shall note on each copy the date on which the notice of appeal was filed. The clerk of
MHA Supreme Court shall also note in the docket the names of the parties to whom copies have
been mailed, with the date of mailing.
3-1-32.5
Transmittal to Appeals Court
Within five (5) days after the notice of appeal is filed with the Tribal court, the clerk shall
transmit the same to the MHA Supreme Court by docketing in the Tribal appeals court docket
the notice of appeal, the verdict, the judgment, or any order of the court from which the appeal
is taken, the complaint, and the undertaking on appeal and all documents and papers filed in the
action.
3-1-32.6
Designation of Parties on Appeal
A party appealing shall be known as appellant and an adverse party shall be known as appellee.
3-1-32.7
Supervision in Appeals Court
The supervision and control of the proceeding on appeal shall be in the appellate court from the
time the appeal is taken. The MHA Supreme Court, at any time after an appeal is taken may
entertain a motion to dismiss the appeal or direct the trial court to modify or vacate any order
made by the Tribal court relating to the prosecution from which the appeal is taken, including
any order fixing or denying bail.
3-1-33
3-1-33.1
Stay of Execution and Relief of Pending Review
Staying of Incarceration Pending Appeal
A sentence of imprisonment, if an appeal is taken, may be stayed by the trial court upon such
terms and conditions as the court deems proper.
22
3-1-33.2
Fine
A sentence to pay a fine or fine and costs, if an appeal is taken, may be stayed by the trial court
upon such terms as the trial court deems proper. The trial court may require the defendant to
deposit the whole or any part of the fine and costs with the Tribal court clerk, or to give bond
for the payment thereof, or to submit an examination of assets, and it may make an appropriate
order to restrain the defendant from dissipating his assets.
3-1-34
3-1-34.1
Dismissal
By Prosecuting Attorney
No criminal case shall be dismissed by any prosecuting attorney except upon motion and with
the court’s approval. Such a motion shall be supported by a written statement concisely stating
the reason for the motion. The statement shall be filed with a record of the case and be open to
public inspection. A dismissal may not be ordered during trial without the defendant’s consent.
3-1-34.2
By the Court
If there is unnecessary delay in filing a complaint against a defendant who has been arrested or
for whose arrest a warrant has been issued, or if there is unnecessary delay in bringing a
defendant to trial, the court may dismiss the complaint.
3-1-35
Calendars
The court administrator shall provide for placing criminal actions or proceedings upon the
calendar. Preference shall be given to criminal cases as far as practicable. The court may make
such orders for advancement or continuance of a criminal action or proceeding as may be
necessary in the interest of justice.
3-1-36
Regulation of Conduct in Courtroom
No camera, sound recorder, or other device, except those operating for official purposes, by or
under the direction of the court, shall be used to photograph, record, or broadcast proceedings
of the court, nor shall such devices be brought in or allowed to remain in the courtroom while
proceedings are in progress.
3-1-37
3-1-37.1
Application and Exception
Courts
These rules govern the practice and procedure in all criminal proceedings in the Tribal courts of
the Three Affiliated Tribes as prescribed in section 3-1-1.
3-1-37.2
Proceedings Not Applicable to this Chapter
a Habeas Corpus - These rules do not apply to proceedings on any application for a writ
of Habeas Corpus had in the courts of this Reservation.
b Mental Health Proceedings – These rules do not apply to mental health proceedings.
c Other Proceedings – these rules do not apply to:
(i) Extradition and rendition of fugitives.
(ii) Forfeiture of property for a violation of a statute of the Three Affiliated Tribes.
(iii) The collection of fines and penalties.
(iv) Proceedings under the Juvenile Court Act.
(v) An action to determine paternity of a child born out of wedlock.
3-1-38
3-1-38.1
Effective Date: Statutes Superseded
Effective Date
These rules will take effect on July 1, 2025. They govern all criminal proceedings thereafter
commenced and, so far as practicable, all proceedings then pending.
23
3-1-38.2
Statutes Superseded
Upon the taking of effect of these rules, all statutes and parts of statutes in conflict herewith and
the statutes listed as superseded in the Table of Statutes affected are superseded.
3-2
3-2-1
3-2-1.1
Provisions for Criminal Practice
Scope
Governing Provisions
Except as otherwise provided by this Three Affiliated Tribes’ Tribal Code and as provided by
section 3-1-37, these provisions govern the practice and procedure in all criminal proceedings
in the Tribal courts of the Fort Berthold Indian Reservation. This code shall be known as the
Three Affiliated Tribes Criminal Code and cited as T.A.T.C.C.
3-2-2
3-2-2.1
Purpose and Construction
Regulation of Formal Steps
These provisions are intended to regulate the formal steps in an action or other judicial
proceeding and include the judicial process for enforcing rights and duties recognized by
substantive law and for justly administering redress for infraction of them. They shall be
construed to secure simplicity in procedure, fairness in administration, and the elimination of
unjustifiable expense and delay.
3-2-3
3-2-3.1
Provisions and Principles of Construction
Definition of Offenses
The general purpose of the provisions governing the definition of offenses are:
a To forbid and prevent conduct that unjustifiably and inexcusably inflicts or threatens
substantial harm to individual or public interests.
b To subject to public control people whose conduct indicates that they are disposed to
commit crimes.
c To safeguard conduct that is without fault from condemnation as criminal.
d To give warning of the nature of the conduct declared to constitute an offense; and
e To differentiate on reasonable grounds between serious and minor offenses.
3-2-3.2
Sentencing and Treatment of Offenders
The general purpose of the provisions governing the sentencing and treatment of offenders are:
a To prevent the commission of offenses.
b To promote the correction and rehabilitation of offenders.
c To safeguard offenders against excessive, disproportionate, or arbitrary punishment.
d To give fair warning of the nature of the sentences that may be imposed on conviction
of an offense.
e To differentiate among offenders with a view to a just individualization in their
treatment.
f To define, coordinate, and harmonize the powers, duties and functions of the courts
and administrative officers and agencies responsible for dealing with offenders.
g To advance the use of the general accepted scientific methods and knowledge in the
sentencing and treatment of offenders.
h To integrate responsibility for the administration of the correctional system.
3-2-3.3
Fair Import of Terms
The provisions of this code shall be construed according to the fair import of their terms but
when language is susceptible of differing constructions it shall be interpreted to further the
general purposes stated in this section and the special purpose conferred by this code shall be
24
exercised in accordance with the criteria stated in this code and, insofar as such criteria are not
decisive, to further the general purpose so stated in section 3-2-2.
3-2-4
3-2-4.1
Territorial Applicability
Except as otherwise provided in this section, a person may be convicted of an offense under
these laws for actions taken within the exterior boundaries of the Fort Berthold Indian
Reservation which are committed by his own conduct or the conduct of another for which he is
legally accountable if:
a Either the conduct which is an element of the offense occurs in the Reservation, or the
result of such conduct if such an element occurs in the Reservation; or
b Conduct occurring outside the jurisdiction of the Reservation is sufficient under the
law of this code if such conduct constitutes an attempt to commit an offense within the
Reservation and the conduct shows a substantial step or an overt act in furtherance of
that attempt; or
c Conduct occurring outside the jurisdiction of the Reservation is sufficient under the
laws of this criminal code to constitute a conspiracy to commit an offense within the
Reservation if such conduct shows a substantial step or an overt act in furtherance of
that conspiracy within the Reservation; or
d Conduct occurring within the exterior boundaries of the Reservation which establishes
complicity in the commission of, or an attempt, solicitation, or conspiracy to commit,
an offense in another jurisdiction which also is an offense under this code of the
Reservation; or
e The offense consists of the omission to perform a legal duty imposed by this code of
the Reservation with respect to domicile, residence or a relationship to a person, thing,
or transaction on the Reservation; or
f The offense is based on a criminal code of the Reservation which expressly prohibits
conduct outside the exterior boundaries of the Reservation, when the conduct bears a
reasonable relation to a legitimate interest of the Reservation and actor knows or should
know that his conduct is likely to affect that interest.
3-2-4.2
The above subsection 3-2-4.1(a) does not apply when causing a particular result is an element
of an offense and the result is caused by conduct occurring outside the Fort Berthold Indian
Reservation which would not constitute an offense if the result had occurred there unless the
actor purposely or knowingly caused the result within the Reservation.
3-2-4.3
When the offense is homicide, either the death of the victim or the bodily impact causing death
constitutes a "result", within the meaning of subsection 3-2-4.1(a) and if the body of a homicide
victim is found within the exterior boundaries of the Fort Berthold Indian Reservation, it is
presumed that such result occurred within the Reservation.
3-2-4.4
The Fort Berthold Indian Reservation includes the land and water and together with the air space
above such land and water with respect to which the Three Affiliated Tribes have legislative
jurisdiction.
3-2-5
3-2-5.1
Offense Defined by Published Statutes
No conduct constitutes an offense unless it is a crime or violation under this code or another
ordinance of the Fort Berthold Indian Reservation.
3-2-5.2
The provisions of this code are applicable to offenses defined by other ordinances unless this
code otherwise provides.
25
3-2-5.3
This section does not affect the power of the Tribal court to punish for contempt or to utilize
any sanction authorized by law for the enforcement of an order or a civil judgment or decree.
3-2-6
3-2-6.1
Prior Offenses
The revised code does not apply to offenses committed prior to its effective date and prosecution
for such offenses shall be governed by the prior law, which is continued in effect for that
purpose, as if this code were not in force. For the purpose of section 3-2-7, an offense was
committed prior to the effective date of this code if any of the elements of the offense occurred
prior to the effective date of this code. In any case pending on or after the effective date of this
code, involving an offense committed prior to the effective date:
a Procedural provisions of this code shall govern, as far as they are justly applicable, and
their application does not introduce confusion or delay.
b Provisions of this code providing a defense or mitigation shall apply, with the consent
of the defendant.
c The court, with the consent of the defendant, may impose sentence under the previous
provision of this code applicable to the offense and the offender.
3-2-7
Prior Sentences
Provisions of this code governing the treatment and the release or discharge of prisoners,
probationers and parolees shall apply to persons under sentence for offenses prior to the effective
date of this code, except that the minimum or maximum period of their detention or supervision
shall in no case be increased.
3-2-8
3-2-8.1
Method of Prosecution When Conduct Constitutes More than One Offense
When the same conduct of a defendant may establish the commission of more than one offense,
the defendant may be prosecuted for each such offense. He may not, however, be convicted of
more than one offense if:
a One offense is included in the other, as defined in subsection 3-2-8.1(d);
b One offense consists only of a conspiracy or other form of preparation to commit the
other;
c Inconsistent findings of fact are required to establish the commission of the offenses;
d The offense differs only in that one is defined to prohibit a designated kind of conduct
generally and the other to prohibit a specific instance of such conduct; or
e The offense is defined as a continuing course of conduct and the defendant’s course of
conduct was uninterrupted, unless the law provides that specific periods of such
conduct constitute a separate offense.
3-2-9
3-2-9.1
Limitation on Separate Trials for Multiple Offenses
Except as provided in section 3-2-10, a defendant shall not be subject to separate trials for
multiple offenses based on the same conduct or arising from the same criminal episode if such
offenses are known to the appropriate prosecuting officer at the time of the commencement of
the first trial and are within the jurisdiction of the Tribal court.
3-2-10
3-2-10.1
Authority of the Court to Order Separate Trials
When a defendant is charged with two or more offenses based on the same conduct or arising
from the same criminal episode, the court, on application of the prosecutor or attorney of the
defendant, may order any such charge to be tried separately, if it is satisfied that justice so
requires.
26
3-2-11
3-2-11.1
Conviction of Lesser Included Offenses Permitted
Upon a request filed by the defendant or prosecutor, the court may instruct the jury that the
defendant can be convicted of a lesser included offense of the offense charged in the complaint.
An offense is so included when:
a It shares some, but not all, of the elements of the charged offense.
b It consists of an attempt or solicitation to commit the offense charged or to commit an
offense otherwise included therein.
c The crimes are of a similar character and based on the same act or common plan; or
d It differs from the offense charged only in the respect that a less severe injury or risk
of injury to the same person, property, or public interest or a lesser kind of culpability
suffices to establish its commission.
3-2-12
3-2-12.1
Charging Offenses Together
The prosecutor may charge the lesser included offense together with the greater offense in the
complaint, however, only one offense can provide the basis for conviction. The defendant cannot
be found guilty of both offenses because the elements of the lesser included offense are part of
the greater offense.
3-2-13
3-2-13.1
Submission of Lesser Included Offense to Jury
The court shall not be obligated to charge the jury with respect to a lesser included offense unless
there is a rational basis for a verdict acquitting the defendant of the greater offense charged and
convicting him of the lesser included offense.
3-2-14
3-2-14.1
Prosecution Barred by Former Prosecution for the Same Offense
When a prosecution is for a violation of the same provision of this code and is based upon the
same facts as a former prosecution, it is barred by such former prosecution under the following
circumstances:
a The former prosecution resulted in an acquittal unless such acquittal has been set aside
because of an error of law prejudicial to the prosecution. There is an acquittal if the
prosecution resulted in a finding of not guilty by the trier of fact or in a determination
that there was insufficient evidence to warrant a conviction. A finding of guilty of a
lesser included offense is an acquittal of the greater inclusive offense although the
conviction is subsequently set aside.
b The former prosecution was terminated, after the complaint had been filed by a final
order or judgment for the defendant, which has not been set aside, reversed, or vacated,
and which necessarily required a determination inconsistent with a fact or a legal
proposition that must be established for conviction of the offense.
c The former prosecution was improperly terminated. Except as provided in this
subsection there is an improper termination of a prosecution if the termination is for
reasons not amounting to an acquittal, and it takes place after the first witness is sworn
but before verdict. Termination under any of the following circumstances is not
improper:
(i) The defendant consents to the termination or waives, by motion to dismiss or
otherwise, his right to object to the termination.
(ii) The trial court finds that the termination is necessary because:
(i) It is physically impossible to proceed with the trial in conformity with the law.
(ii) There is a legal defect in the proceedings which would make any judgment
entered upon a verdict reversible as a matter of law; or
(iii) Prejudicial conduct, in or outside the courtroom, makes it impossible to
proceed with the trial without injustice to either the defendant or the Three
27
Affiliated Tribes, unless the prejudicial conduct is that of the prosecutor and
the court finds that such conduct was done to obtain a mistrial; or
(iv) The jury is unable to agree upon a verdict; or
(v) False statements of the juror on voir dire prevent a fair trial.
3-2-15
3-2-15.1
Prosecution Barred by Former Prosecution for Different Offenses
Although a prosecution is for a violation of a different provision of the statute than a former
prosecution which is based on different facts, it is barred by such former prosecution under the
following circumstances:
a The former prosecution resulted in an acquittal of defendant in a charged offense as
defined in section 3-2-14, and the subsequent prosecution is for:
(i) Any offense conduct of which the defendant should have been charged on the first
prosecution; or
(ii) Any offense conduct for which the defendant should have been tried on the first
prosecution under section 3-2-14, unless the court ordered a separate trial of the
charges of such offense conduct; or
(iii) The same offense conduct, unless the subsequent charged offense requires proof
of a fact not required by the other previous charged offense, of which the defendant
was formerly convicted or acquitted, and the present offense for which he is
subsequently prosecuted and the law defining such offenses is intended to prevent
a substantially different harm or evil.
b The second offense was not consummated when the former trial commenced.
(i) The former prosecution was terminated, after the complaint was filed by an
acquittal or by a final order or judgment for the defendant which has not been set
aside, reversed, or vacated and which acquittal, final order, or judgment necessarily
required a determination inconsistent with a fact which must be established for
conviction of the second offense.
(ii) The former prosecution was terminated as improper as defined in section 3-2-14,
and the subsequent prosecution is for an offense for which the defendant could
have been charged had the former prosecution not been improperly terminated.
3-2-16
3-2-16.1
Former Prosecution in Another Jurisdiction
When conduct constitutes an offense within the concurrent jurisdiction of the Three Affiliated
Tribes and of the United States or other legal entity with jurisdiction, a prosecution in any other
jurisdiction is not a bar to a subsequent prosecution on the Fort Berthold Indian Reservation.
3-2-17
Former Prosecution before Court Lacking Jurisdiction or when Fraudulently Procured by the
Defendant
A prosecution is not a bar within the meaning of sections 3-2-14, 3-2-15, and 3-2-16 under any
of the following circumstances:
a The former prosecution was before a court which lacked jurisdiction over the defendant
or the offense.
b The former prosecution was procured by the defendant without the knowledge of the
appropriate prosecuting officer and with the purpose of avoiding the sentence which
might otherwise be imposed; or
c The former prosecution resulted in a judgment of conviction which was held invalid in
a subsequent proceeding on a writ of habeas corpus, coram nobis or similar process.
3-2-17.1
3-2-18
3-2-18.1
Proof and Presumptions
No person may be convicted of an offense unless each element of such offense is proven beyond
a reasonable doubt. A person is presumed innocent until proven guilty. The fact that the accused
28
has been arrested, confined, or charged with the offense gives rise to no inference of guilt at the
accused’s trial.
3-2-18.2
In this section 3-2-18, the prosecuting attorney shall not be required to:
a Negate a defense by allegation in the charging document;
b Negate a defense by proof, unless the issue is in the case as a result of evidence
sufficient to raise a reasonable doubt on the issue; or
c Disprove an affirmative defense unless, and until, there is evidence supporting such
defense.
3-2-18.3
A ground of defense is affirmative, within the meaning of subsection 3-2-18.2(c) when:
a It arises under a section of this code which so provides; or
b It relates to an offense defined by an ordinance other than this code and such ordinance
so provides; or
c It involves a matter of excuse or justification peculiarly within the knowledge of the
defendant on which he can fairly be required to adduce supporting evidence.
3-2-18.4
When the application of this code depends upon the finding of a fact which is not an element of
an offense, unless this code otherwise provides:
a The burden of proving the fact is on the prosecution or defendant, depending on whose
interest or contention will be furthered if the finding should be made; and
b The fact must be proved to the satisfaction of this court or jury as the case may be.
3-2-18.5
When this code establishes a presumption with the respect to any fact which is an element of an
offense, it has the following consequences:
a When there is evidence of the fact which give rise to the presumption, the issue of the
existence of the presumed fact must be submitted to the jury, unless the court is
satisfied that the evidence as a whole clearly negates the presumed fact; and
b When the issue of the existence of the presumed fact is submitted to the jury, the court
shall charge that while the presumed fact must, on all the evidence, be proved beyond
reasonable doubt, the law declares that the jury may regard the facts giving rise to the
presumption as sufficient evidence of the presumed fact.
3-2-19
3-2-19.1
General Definitions
In this code, unless a different meaning plainly applies:
a “Act” or “action” means a bodily movement whether voluntary or involuntary.
b “Acted”, “acts,” and “actions” include, where relevant, “omitted to act” and “omissions
to act”.
c “Actor” includes, where relevant, a person guilty of an omission.
d “Bodily Injury” means any impairment of physical condition, including physical pain.
e “Conduct” means an action or omission and its accompanying state of mind, or where
relevant, a series of acts and omissions.
f “Court” means all courts of the Fort Berthold Indian Reservation and shall include the
District, Juvenile, and Appellate courts.
g “Dangerous weapon” has the meaning as defined in Title 3, Chapter 20 “Weapons and
Explosives” in subsection 3-20-1.1(a).
h “Person”, “her”, “his”, and “actor” include any man, woman, or child.
i “Elements of an offense” means:
(i) The forbidden conduct.
(ii) The attendant circumstances specified in the definition and grading of the offense.
(iii) The required culpability; and
29
(iv) Any required result; and the nonexistence of a defense as to which there is evidence
sufficient to raise reasonable doubt on the issue.
j “Involuntary” has the meaning specified in subsection 3-2-20.1(a).
k “Material element of an offense” means an element that does not relate exclusively to
the statute of limitations, jurisdiction, venue, or to another matter similarly
unconnected with:
(i) The harm or evil, incident to conduct, sought to be prevented by the law defining
the offense, or
(ii) The existence of a justification or excuse for such conduct.
l “Purposely” has the meaning specified in subsection 3-2-22.2(a) and equivalent terms
such as “with purpose”, “designed”, or “with design” have the same meaning.
m “Intentionally” or “with intent” means purposely.
n “Knowingly” has the meaning specified in subsection 3-2-22.2(b) and equivalent terms
such as “knowing” or “with knowledge” have the same meaning.
o “Recklessly” has the meaning specified in subsection 3-2-22.2(c) and equivalent terms
such as "recklessness", or "with recklessness" have the same meaning.
p “Negligently” the meaning specified in subsection 3-2-22.2(d) and equivalent terms
such as "negligence" or "with negligence" have the same meaning.
q “Omission” means a failure to act.
r “Ordinance” includes this criminal code and other related ordinances of the Fort
Berthold Indian Reservation along with amendatory changes hereafter.
s “Reasonably believes” or “reasonable belief” designates a belief which the actor is not
reckless or negligent in holding.
3-2-20
3-2-20.1
3-2-21
3-2-21.1
General Principles of Liability Requirement of Voluntary Act; Omission as a Basis of Liability
for an Act
A person is not guilty of an offense unless his liability is based on conduct which includes a
voluntary act or the omission to perform an act of which he is physically capable.
a The following are not voluntary acts within the meaning of this section:
(i) A reflex or convulsion.
(ii) A bodily movement during unconsciousness or sleep.
(iii) Conduct during hypnosis or resulting from hypnotic suggestion.
(iv) A bodily movement that otherwise is not a product of the effort or determination
of the actor, either conscious or habitual.
b Liability for the commission of an offense may not be based on an omission
unaccompanied by action unless:
(i) The omission is expressly made sufficiently by the law defining the offense; or
(ii) A duty to perform the omitted act is otherwise imposed by law.
c Possession is an act within the meaning of this section if the possessor knowingly
procured or received the thing possessed or was aware of his control thereof for a
sufficient period to have been able to terminate his possession.
Absolute Liability
Notwithstanding any other provisions of existing law and unless a subsequent ordinance
otherwise provides:
a When absolute liability is imposed with respect to any material element of an offense
defined by ordinance other than this code and a conviction is based upon such liability,
the offense constitutes a violation; and
b Although absolute liability is imposed by law with respect to one or more of the
material elements of an offense defined by a statute other than this code, the culpable
commission of the offense may be charged and proved, in which event negligence with
30
respect to such elements constitutes sufficient culpability and the classification of the
offense and the sentence that may be imposed therefore upon conviction are
determined by section 3-9-2 and Title 3, Chapter 9 of this code.
3-2-22
3-2-22.1
General Requirement of Culpability
Minimum Requirements
Minimum requirements of culpability must be established. Except as provided in subsection 32-23.1, a person is not guilty of an offense unless he acted intentionally, knowingly, recklessly,
or negligently, as the law may require, with respect to each material element of the offense.
3-2-22.2
Kinds of Culpability Defined
a Intentionally - a person acts intentionally with respect to a material element of an
offense when:
(i) If the element involves the nature of his conduct or a result thereof, it is his
conscious object to engage in conduct of that nature or to cause such a result; and
(ii) If the element involves the attendant circumstances, he is aware of the existence of
such circumstances or he believes or hopes that they exist.
b Knowingly - a person acts knowingly with respect to a material element of an offense
when:
(i) If the element involves the nature of his conduct or the attendant circumstances,
he is aware that his conduct is of that nature or cause such a result; and
(ii) If the element involves the attendant circumstances, he is aware of the existence of
such circumstances or he believes or hopes that they exist.
c Recklessly - a person acts recklessly with respect to a material element of an offense
when he consciously disregards a substantial and unjustifiable risk that the material
element exists or will result from his conduct. The risk must be of such nature and
degree that, considering the nature and purpose of the actor’s conduct and the
circumstances known to him, its disregard involves a gross deviation from the standard
of conduct that a law-abiding person would observe in the actor’s omission.
d Negligently - a person acts negligently with respect to a material element of an offense
when he should be aware of a substantial and unjustifiable risk that the material
element exists or will result from his conduct. The risk must be of such nature and
degree that the actor’s failure to perceive it, considering the nature and purpose of his
conduct, and the circumstances known to him, involves a gross deviation from the
standard of care that a reasonable person would observe in the actor’s situation.
3-2-22.3
Culpability Required Unless Otherwise Provided
When culpability sufficient to establish a material element of an offense is not prescribed by
law, such element is established if a person acts intentionally, knowingly, or recklessly with
respect thereto.
3-2-22.4
Prescribed Culpability Requirement Applied to all Material Elements
When the law defining an offense prescribes the kind of culpability that is sufficient for the
commission of an offense, without distinguishing among the material elements thereof, such
provision shall apply to all the material elements of the offense, unless a contrary purpose plainly
appears.
3-2-22.5
Substitutes for Negligence, Recklessness, and Knowledge
When the law provides that negligence suffices to establish an element of an offense, such
element also is established if a person acts purposely, knowingly, or recklessly. When reckless
suffices to establish an element, such element also is established if a person acts intentionally.
31
3-2-22.6
Requirement of Intent Satisfied if Intent is Conditional
When a particular intent is an element of an offense, the element is established although such
intent is conditional, unless the condition negates the harm or evil sought to be prevented by the
law defining the offense.
3-2-22.7
Requirement of Knowledge Satisfied by Knowledge of High Probability
When knowledge or existence of a particular fact is an element of an offense, such knowledge
is established if a person is aware of a high probability of its existence, unless he actually
believes that it does not exist.
Requirement of Willfulness Satisfied by Acting Knowingly
A requirement that an offense be committed willfully is satisfied if a person acts knowingly with
respect to the material elements or the offense, unless a purpose to impose further requirements
appears.
3-2-22.8
3-2-22.9
Culpability as to Illegality of Conduct
Neither knowledge nor recklessness or negligence as to whether conduct constitutes an offense
or as to the existence, meaning, or application of the law determining the elements of an offense
is an element of such offense, unless the definition of the offense or this code so provides.
3-2-22.10 Culpability as Determinant of Grade of Offense
When the degree of an offense depends on whether the offense is committed intentionally,
knowingly, recklessly, or negligently, its severity shall be the lowest for which the determinative
kind of culpability is established with respect to any material element of the offense.
3-2-23
3-2-23.1
Inapplicable Culpability Requirements
The requirements of culpability prescribed in section 3-2-22 do not apply to:
a Offenses which constitute violations, unless the requirement involved is included in
the definition of the offense or the court determines that its application is consistent
with effective enforcement of the law defining the offense; or
b Offenses defined by ordinances other than this code, as far as a legislative purpose to
impose absolute liability for such offenses with respect to any material element plainly
appears.
3-2-24
3-2-24.1
Causal Relationship Between Conduct and Result
Conduct is the cause of result when:
a It is an antecedent but for which the result in question would not have occurred; and
b The relationship between the conduct and result satisfies any additional casual
requirements imposed by this code or by the law defining the offense.
3-2-25
Divergence Between Result Designed or Contemplated and Actual Result or Between Probable
and Actual Result
When intentionally or knowingly causing a particular result is an element of an offense, the
element is not established if the actual result is not within the purpose of the contemplation of
the actor unless:
a The actual result differs from the designed or contemplated result, as the case may be,
only in the respect that a different person or different property is injured or affected or
that the injury or harm designed or contemplated would have been more serious or
more extensive than that caused; or
b The actual result involves the same kind of injury or harm designed or contemplated
and is not too remote or accidental in its occurrence to have a just bearing on the actor’s
liability or on the gravity of his offense.
3-2-25.1
32
3-2-25.2
When recklessly or negligently causing a particular result is an element of an offense, the
element is not established if the actual result is not within the risk of which the actor is aware
or, in the case of negligence, of which he should be aware unless:
a The actual result differs from the probable result only in the respect that a different
person or different property is injured or affected or that the probable injury or harm
would have been more serious or more extensive than that caused; or
b The actual result involves the same kind of injury or harm as the probable result and is
not too remote or accidental in its occurrence to have a just bearing on the actor’s
liability or on the gravity of his offense.
3-2-25.3
When causing a particular result is a material element of an offense for which absolute liability
is imposed by law, the element is not established unless the actual result is a probable
consequence of the actor’s conduct.
3-2-26
3-2-26.1
Liability for Conduct of Another; Complicity
A person is guilty of an offense if it is committed by his own conduct or by the conduct of
another person for which he is legally accountable, or both. A person is legally accountable for
conduct of another person when:
a Acting with the kind of culpability that is sufficient for the commission of the offense,
he causes an innocent or irresponsible person to engage in such conduct; or
b He is made accountable for the conduct of such other person by this code or by the law
defining the offense; or
c He is an accomplice of such other person in the commission of the offense. A person
is an accomplice of such other person in the commission of an offense if:
(i) With the purpose of promoting or facilitating the commission of the offense, he:
(i) Solicits such other person to commit it; or
(ii) Aids or agrees or attempts to aid such other person in planning or committing
it; or
(iii) Having a legal duty to prevent the commission of the offense, fails to make
proper effort to do so; or,
(iv) His conduct is expressly declared by law to establish his complicity.
d When causing a particular result is an element of an offense, an accomplice in the
conduct causing such result is an accomplice in the commission of that offense, if he
acts with the kind of culpability, if any, with respect to the result that is sufficient for
the commission of the offense.
e A person who is legally incapable of committing a particular offense himself may be
guilty thereof if it is committed by the conduct of another person for which he is legally
accountable, unless such liability is inconsistent with the purpose of the provision
establishing his incapacity.
f Unless otherwise provided by this code or by the law defining the offense, a person is
not an accomplice in an offense committed by another person if:
(i) He is a victim of that offense; or
(ii) The offense is so defined that his conduct is inevitably incident to its commission;
or
(iii) He terminates his complicity prior to the commission of the offense and
(i) Wholly deprives it of its effectiveness in the commission of the offense; or
(ii) Gives timely warning to the law enforcement authorities or otherwise makes
proper effort to prevent the commission of the offense.
g An accomplice may be convicted on proof of the commission of the offense and of his
complicity therein, though the person accused to have committed the offense has not
33
been prosecuted or convicted or has been convicted of a different degree of offense or
has an immunity to prosecution of conviction or has been acquitted.
3-3
3-3-1
Criminal Extradition Procedure
The TAT Extradition Official, appointed by the Chairman of the Judicial Committee, shall have
the authority to have apprehended and delivered up to the executive authority of any Indian
tribe, state, or the United States, any person charged with or convicted of a felony, who has fled
from justice and is found within the exterior boundaries of the Fort Berthold Indian Reservation.
3-3-2
A formal demand for extradition must be made in writing by the demanding sovereign alleging
that the individual was present within the jurisdiction of the demanding sovereign at the time of
the commission of the alleged crime and that, thereafter, he fled from the jurisdiction of the
sovereign. Accompanying the formal demand shall be a copy of any warrant outstanding against
the individual, a copy of any judgment of conviction or any sentence imposed in execution
thereof, or a statement by an appropriate agent of the demanding sovereign that the individual
has escaped from confinement or has violated the terms or conditions of his bail, probation, or
parole. Additionally, the TAT Extradition Official shall receive a copy of any indictment, a copy
of any information or complaint supported by an affidavit, or a copy of an affidavit made before
a magistrate judge or judge in said jurisdiction. The indictment, information, complaint, or
affidavit made before a magistrate judge or judge must charge the individual whose extradition
is demanded with having committed a felony under the laws of that sovereign. The copy of the
indictment, information, complaint, affidavit, judgment of conviction, or sentence shall be
authenticated by an appropriate agent of the demanding sovereign.
3-3-3
If the TAT Extradition Official determines that the demand should be complied with, he shall
cause a Tribal court judge or magistrate judge to sign a warrant for apprehension which shall be
directed to the TAT law enforcement office for execution. The warrant shall authorize any TAT
law enforcement officer to apprehend the individual at any time and any place where he may be
found within the Fort Berthold Indian Reservation, and to command the aid of all TAT law
enforcement officers in the execution of the warrant.
3-3-4
No individual apprehended under such warrant shall be delivered directly over to an agent of
the demanding sovereign. He shall first be taken forthwith before a Tribal court judge or
magistrate judge who shall inform him of the demand made for his extradition, the felony with
which he has been charged or of which he has been convicted, and his right to demand and
secure legal counsel, and his right to a full hearing to challenge the proposed extradition.
3-3-5
A full hearing shall be held within seventy-two (72) hours after the individual is apprehended
to test the validity of the arrest. It will be presumed that the individual arrested desires a full
hearing, unless the individual waives such hearing by executing in the presence of a Tribal court
judge or magistrate judge a writing which states that he consents to the return to the demanding
sovereign without a full hearing on the proposed extradition.
3-3-6
If, from the examination of the evidence presented at a hearing before a Tribal court judge or
magistrate judge, it appears that the individual held is, in fact, the individual whose extradition
is demanded and that he has fled from justice, the Tribal court judge or magistrate judge shall,
by an order reciting his determination, commit him to a Tribal detention facility until such time,
not exceeding thirty (30) days, for the TAT Extradition Official to notify and surrender him to
an agent of the demanding sovereign.
34
3-3-7
The TAT Extradition Official shall also have the authority to demand the return of an individual
charged with a Tribal crime, with escaping from confinement, or with violating the terms or
conditions of his bail, probation, or parole within the Fort Berthold Indian Reservation, from the
executive authority of any other sovereign authorized to receive such demand.
3-3-8
When the return to the Fort Berthold Indian Reservation of an individual charged with or
convicted of a crime within the Reservation is required, a Tribal court judge or magistrate judge
shall present to the TAT Extradition Official a written application for the return of such
individual. The application shall state the name of the individual, the crime with which he has
been charged or of which he has been convicted, the approximate time, place and circumstances
of its commission, and the jurisdiction in which he is believed to be, including location of the
individual in such jurisdiction, at the time the application is made. The application shall certify
that, in the opinion of the Tribal court judge or magistrate judge, the ends of justice require the
arrest and return of the individual to the Reservation for trial or other hearing and that the
proceeding is not instituted to enforce a private claim.
3-3-9
An individual returned to the Fort Berthold Indian Reservation by means of extradition based
on a criminal charge shall not be subject to personal service of process in any civil action arising
out of the same circumstances involved in the criminal proceeding, until he has been finally
convicted or, if acquitted, until he has had reasonable opportunity to return to the jurisdiction
from which he was extradited.
An exception to this section’s prohibition on personal service of process in civil action arising
out of the same circumstances involved in the criminal proceeding is if the criminal proceeding
is brought under Chapter 24, Domestic Violence and Covered Crimes, which allows the issuance
of a protection order to the victim of the crime.
3-3-10
Nothing contained in these Three Affiliated Tribes Criminal Code Provisions and Procedures
shall be deemed to constitute a waiver by the Three Affiliated Tribes of their right, power, or
privilege to try such demanded individual for any crime committed within the Fort Berthold
Indian Reservation or of their right, power, or privilege to regain custody of such individual by
extradition proceedings for the purpose of trial, sentence, or punishment for any crime
committed within the Reservation.
3-4
3-4-1
3-4-1.1
Statute of Limitations
Statute of Limitations
No prosecution shall be maintained under this Three Affiliated Tribes Criminal Code unless the
action has been commenced within one (1) year after the commission of the offense for Class 2,
3, and 4 misdemeanors and three (3) years for Class 1 Misdemeanor and five (5) years for Felony
offenses.
a There is no limitation on the time in which a prosecution for murder must be
commenced. It may be commenced at any time after the death of the victim.
b No statute of limitation shall preclude the prosecution for an offense involving the
sexual or physical abuse or assault, or kidnapping, of a child under the age of eighteen
(18) years.
3-4-2
3-4-2.1
Completed Offense
An offense is committed when every element defining an offense occurs. For purposes of the
statute of limitations clock, time starts to run on the day after the offense is committed.
35
3-4-2.2
A prosecution is commenced either when a complaint is filed or when a warrant or other process
is issued, provided that such warrant or process is executed without unreasonable delay.
3-4-3
3-4-3.1
Tolling of Limitations
A period of limitation does not run:
a During any time when the accused is continuously absent from the Reservation or has
no reasonably ascertainable place of abode or work within the Reservation.
b During any time when the prosecution against the accused for the same conduct is
pending on this Reservation.
3-4-4
3-4-4.1
Concealed Crime
The statute of limitations otherwise applicable to a criminal act is tolled where:
a The criminal act is concealed; or
b The victim is under the influence of a person in a position of trust.
3-4-5
3-4-5.1
Speedy Trial
Trial must be commenced within one (1) year after the arraignment. The following actions shall
toll the speedy trial clock:
a The defendant absconds from the jurisdiction of the Fort Berthold Indian Reservation;
or
b The defendant fails to appear for proceedings subsequent to arraignment.
3-5
3-5-1
3-5-1.1
Bail
Definitions
As used in this chapter, unless the context otherwise requires:
a “Bail Bond Agent” means any person who has obtained a business license from the
TAT and registered bond information with the Tribal Employment Rights Office
(TERO) which shows appointment by an insurer, by power of attorney, to execute or
countersign bail bonds for the insurer in connection with the judicial proceedings and
charges and receives money for this service.
b “ Commissioner” means the Tribal Employment Rights Director.
c “Bail” is to obtain release of a person charged with an offense by ensuring future
attendance in Tribal court through security being taken and compelling the accused to
remain within the jurisdiction of the Tribal court.
d “Bail Bond” is a written undertaking, executed by the defendant or one or more
sureties, that the defendant will render himself amenable to the processes of the Tribal
court, and that in the event he fails to do so, the signers of the bond will pay to the
court the amount of money specified in the order fixing bail.
3-5-2
3-5-2.1
License Required
No individual, individual, partnership, corporation, or limited liability company may engage in
the provision of any bail bond without –
a Obtaining a business license to conduct business on the Fort Berthold Indian
Reservation from the Three Affiliated Tribes; and
b Submitting proof, as part of the TERO licensing process, of appointment by an insurer,
by power of attorney, to execute or countersign bail bonds for the insurer in connection
with judicial proceedings and charged offenses; and
c Submitting proof of authority to receive money for such an insurer for the extension of
bail bond services.
d No license is required of a private person who may post bail for a relative or friend of
the person subject to such bail restriction.
36
3-5-3
3-5-3.1
Persons Disqualified as Bail Bond Agents
The following persons or classes may not be bail bond agents and may not directly or indirectly
receive any benefits from the execution of any bail bond: jailers, police officers, magistrate
judges, court judges, and court personnel of the Three Affiliated Tribes Tribal Court, sheriffs,
deputy sheriffs, or any person having the power to arrest, or having anything to do with the
control of tribal, federal, or state prisoners.
3-5-4
3-5-4.1
Bail
Any person charged with a criminal offense may be eligible for bail by the Three Affiliated
Tribes Tribal Court, at any time prior to final judgment or pending appeal to the MHA Supreme
Court, in accordance with the provisions of this chapter. If bail is not met, the defendant shall
be confined pending the outcome of the criminal proceedings.
3-5-5
3-5-5.1
Bail Hearing
A bail hearing must be held by a Tribal court judge or magistrate judge when a person is charged
with a Class 1 Misdemeanor or Felony offense. All Class 2, 3, and 4 Misdemeanor offenses will
be set through a Tribal bonding schedule which will be set by the Chief Judge and Chief of
Police with review and approval authority by the Tribe’s Judicial Committee. The Tribal
bonding schedule shall be reviewed annually and made available to the public.
3-5-6
3-5-6.1
Taking of Bail
The taking of bail consists of the acceptance by the Tribal court of sufficient cash in the form of
a money order or cashier’s check, or surety bond to ensure the appearance of the defendant.
Bond may be posted with law enforcement by means of depositing one hundred percent (100%)
of the bond in the form of a money order, cashier’s check, or using the services of a licensed
bonding agent. Law enforcement shall forward such money order, cashier’s check, or notice of
bond to the Tribal court.
3-5-7
3-5-7.1
Bond Forfeiture and Enforcement
Bail bond agents shall be notified by the clerk of court, in writing by certified mail, return receipt
requested, within five (5) days of the defendant’s appearance or failure to appear. The bail bond
agent shall then have no more than sixty (60) calendar days to submit one hundred percent
(100%) of the established bond schedule amount to the court. However, should the bail bond
agent locate and physically bring or cause to be brought to the court the defendant who failed to
appear within the sixty (60) day period, the bail bond agent may petition the court for a return
of the forfeited bond, but shall be responsible for paying five percent (5%) of the bail amount
for court costs. Upon filing, the clerk of court shall enter in the register of actions the date and
amount of the bond, and the name or names of the surety thereon for the bond.
3-5-7.2
Pursuant to subsection 3-1-9.8 of this code, the court may direct a forfeiture to be set aside if it
appears justice does not require the enforcement of the forfeiture:
a Enforcement - If a forfeiture has not been set aside, the court shall enter a judgment of
default and execution may issue thereon.
3-5-8
3-5-8.1
Setting of Bail
Bail shall be fixed in such amount and in such form as, in the judgment of the Tribal court, will
ensure the presence of the defendant in court proceedings of the case. When setting the bail, the
Tribal court judge or magistrate judge shall take into consideration:
a The nature and circumstances of the offense charged.
b The character and reputation of the defendant.
c The previous criminal record of the defendant.
37
d
e
The probability of the defendant appearing at the hearing or trial of the case; and
The safety of the victims, tribal members, and general public.
3-5-8.2
In no case shall bail exceed four (4) times the maximum fine for the offense charged.
3-5-9
3-5-9.1
Release of Defendant
Upon the execution of the requisite recognizance or bail bond, the Tribal court shall issue an
order for the release of the defendant. Upon the delivery of such an order to a law enforcement
officer, the defendant shall be released upon the terms and conditions contained in the court
order.
3-5-10
3-5-10.1
Forfeiture of Bail
If the defendant fails to appear in court as lawfully required, the court shall direct an entry of
such failure and forfeiture of bail to be made on the record, without further proceedings. The
court shall thereafter issue a warrant for the arrest of the defendant.
3-5-11
3-5-11.1
Return of Bail
Any security, given by the surety or the defendant, must be returned within five (5) working
days of a dismissal, not guilty verdict, or upon sentencing, unless the sentence is appealed, then
upon five (5) working days of the appellate decision.
3-6
3-6-1
3-6-1.1
Defenses
Definitions
In this chapter, unless a different meaning is plainly required:
a “Deadly Force” means force which the actor uses with the purpose of causing or which
he knows to create a substantial risk or causing death or serious bodily harm. Purposely
firing a firearm in the direction of another or another person is believed to constitute
deadly force. A threat to cause death or serious bodily harm, by the production of a
weapon or otherwise, so long as the actor’s purpose is limited to creating an
apprehension that he will use deadly force, if necessary, does not constitute deadly
force.
b “Dwelling” means any building or structure, though movable or temporary, or a portion
thereof, which is for the time being the actor’s home or place of lodging.
c “Force” means physical action, threat, or menace against another, and includes
confinement.
d “Intoxication” means a disturbance of mental or physical capacities resulting from the
introduction of substances into the body.
e “Premises” means all or any part of a building or real property, or any structure, vehicle
watercraft, or watercraft used for overnight lodging of persons, or used by persons for
carrying on business therein.
f “Self- induced intoxication” means intoxication caused by substances which the actor
knowingly introduces into his body, the tendency of which to cause intoxication he
knows or ought to know, unless he introduces them pursuant to medical device or under
such circumstance as would afford a defense to a charged crime.
g “Unlawful Force” means force, including confinement, which is employed without the
consent of the person against whom it is directed, and the employment of which
constitutes an offense or actionable tort or would constitute such offense except for a
defense not mounting to a privilege to use the force. Assent constitutes consent, within
the meaning of this code, whether it otherwise is legally effective, except assent to the
infliction of death or serious bodily harm.
38
3-6-2
3-6-2.1
Excuse or Mistake
Excuse
A person’s conduct is excused if he believes that the facts are such that his conduct is necessary
and appropriate for any of the purposes which would establish a justification or excuse under
this code, even though his belief is mistaken. However, if his belief is negligently or recklessly
held, it is not an excuse in a prosecution for an offense, for which negligence or recklessness
suffices the established culpability. Excuse under this section is a defense or affirmative defense
according to which type of defense would be established had the facts been as the person
believed them to be.
3-6-2.2
Mistake of Law
Except as otherwise expressly provided, a person’s good faith belief that conduct does not
constitute a crime is an affirmative defense, if he acted in a reasonable reliance upon a statement
of the law contained in:
a A statute of other enactment.
b A judicial decision, opinion, order, or judgment.
c An administrative order or grant of permission.
3-6-2.3
Mistake of Fact
Mistake of fact is a mistaken understanding or belief about a material fact or event that leads to
an illegal act. It is a defense to a crime if the mistake, if true, would negate a mental state that is
an element of the crime. Mistakes of fact can involve mistakes about a person’s identity,
characteristics, ownership of property, or existence of an event.
It is no defense to a charge of statutory rape that the defendant was mistaken as to the age of the
victim.
3-6-3
3-6-3.1
Intoxication
Except as provided in subsection 3-6-3.4, intoxication of the actor is not a defense unless it
negates an element of the offense.
3-6-3.2
When recklessness establishes an element of the offense, if the actor, due to self-induced
intoxication, is unaware of a risk of which he would have been aware had he been sober, such
unawareness is immaterial.
3-6-3.3
Intoxication does not constitute mental disease within the meaning of section 3-7-1.
3-6-3.4
Intoxication which is not self-induced is an affirmative defense if by reason of such intoxication,
the actor at the time of his conduct lacked substantial capacity either to appreciate its criminality
(wrongfulness) or to conform his conduct to the requirements of law.
3-6-3.5
Voluntary intoxication is a valid defense only to specific intent crimes.
3-6-4
3-6-4.1
Duress
It is an affirmative defense that the actor engaged in the conduct charged to constitute an offense
because he was coerced to do so by the use of, or a threat to use, unlawful force against his
person or the person of another, which a person of reasonable belief in his situation would have
been unable to resist.
a The defense provided by this section is unavailable if the actor recklessly placed
himself in a situation in which it was probable that he would be subjected to duress.
39
b
c
The defense is also unavailable if he was negligent in placing himself in such a
situation, whenever negligence suffices to establish culpability of the offense charged.
It is not a defense that the actor acted on the command of a spouse, unless the actor
acted under such coercion as would establish a defense under this section.
When the conduct of the actor would otherwise be justifiable under section 3-6-9, this
subsection does not preclude such defense.
3-6-5
3-6-5.1
Military Orders
It is an affirmative defense that the actor, in engaging in the conduct charged to constitute an
offense, did no more than execute an order of his superior in the armed services which he did
not reasonably know to be unlawful.
3-6-6
3-6-6.1
Consent
The consent of the victim to conduct which constitutes an offense or to the result thereof, is a
defense, if such consent negates an element of the offense or precludes the infliction of the harm
or evil sought to be prevented by the law defining the offense.
3-6-6.2
When conduct is charged to constitute an offense because it causes or threatens to cause bodily
harm, consent to such conduct or to the infliction of such harm is a defense if:
a The bodily harm consented to or threatened by the conduct consented to, is not serious;
b Conduct and harm are reasonably foreseeable hazards of joint participation in a lawful
athletic contest or competitive sport, or to any concerted activity of a kind forbidden
by law; or
c The consent establishes a justification for the conduct under subsection 3-6-6.3 of this
code.
3-6-6.3
Unless otherwise provided by this code or by the law defining the offense, assent does not
constitute consent if:
a It is given by a person who is legally incompetent to authorize the conduct charged to
constitute the offense;
b It is given by a person who by reason of youth, mental disease or defect or intoxication
is manifestly unable or known by the actor to be unable to make a reasonable judgment
as to the nature or harmfulness of the conduct charged to constitute the offense; or
c It is induced by force, duress or deception of a kind sought to be prevented by the law
defining the offense.
3-6-7
3-6-7.1
De Minimis Infractions
The court shall dismiss a prosecution if, having regard to the nature of the conduct charged to
constitute an offense and the nature of the attendant circumstances, it finds the defendant’s
conduct:
a Was within a customary license to tolerate, neither expressly negated by the person
whose interest was infringed nor inconsistent with the purpose of the law defining the
offense; or
b Presents such other extenuations that it cannot reasonably be regarded as foreseen by
the legislature in forbidding the offense.
c The court shall not dismiss a prosecution under subsection (b) above without filing a
written statement of its reasons.
3-6-8
3-6-8.1
Entrapment
A public law enforcement official or a person acting in cooperation with such an official,
perpetuates an entrapment, if for the purpose of obtaining evidence of the commission of an
40
3-6-8.2
offense, he induces or encourages another person to engage in conduct constituting such offense
by either:
a Making knowingly false representation designed to induce the belief that such conduct
is not prohibited; or
b Employing methods of persuasion or inducement which create a substantial risk that
such an offense will be committed by persons other than those who are ready to commit
it.
Except as provided in subsection 3-6-8.3 of this section, a person prosecuted for an offense shall
be acquitted if he proves by a preponderance of evidence that his conduct occurred in response
to an entrapment. The defense issue of entrapment shall be tried by the court in the absence of
the jury. The defense afforded by this section is unavailable when causing or threatening bodily
injury is an element of the offense charged and the prosecution is based on conduct causing or
threatening such injury to a person other than the person perpetrating the entrapment.
3-6-8.3
The defense afforded by this section is unavailable when causing or threatening bodily injury is
an element of the offense charged and the prosecution is based on conduct causing or threatening
such injury to a person other than the person perpetrating the entrapment.
3-6-9
3-6-9.1
Justification Generally – Choice of Evil
Except as otherwise expressly provided, justification or excuse under this chapter is a defense.
Conduct which the actor believes to be necessary to avoid a harm or evil to himself or to another
is justifiable, provided that:
a The harm or evil sought to be avoided by such conduct is not greater than that sought
to be prevented by the law defining the offense charged.
b Neither the code nor other law defining the offense provides exceptions or defenses
dealing with the specific situation involved; and
c A legislative purpose to exclude the justification claimed does not otherwise plainly
appear.
d When the actor was reckless or negligent in bringing about the situation requiring a
choice of harms or evils or in appraising the necessity for his conduct, the justification
afforded by this chapter is unavailable in a prosecution for any offense for which
reckless or negligence, as the case may be, suffices to establish culpability.
3-6-10
3-6-10.1
Justification and Affirmative Defense – Civil Remedies Unaffected
In any prosecution based on conduct which is justifiable under this chapter, justification is an
affirmative defense.
3-6-10.2
The fact that conduct is justifiable under this chapter does not abolish or impair any remedy for
such conduct which is available in any civil action.
3-6-11
3-6-11.1
Execution of Public Duty
Conduct engaged in by a public servant in the course of the person’s official duties is justified
when it is required or authorized by law, or:
a The law governing the execution of legal process;
b The judgment or order of a competent court or tribunal;
c The law governing the armed services of the lawful conduct of war; or
d Any other provision of law imposing a public duty.
3-6-11.2
A person who has been directed by a public servant to assist that public servant is justified in
using force to carry out the public servant’s direction, unless the action directed by the public
servant is plainly unlawful.
41
3-6-11.3
An actor is justified in using force upon another to affect that person’s arrest or prevent that
person’s escape when a public servant authorized to make the arrest or prevent the escape is not
available if the other person has committed, in the presence of the actor, any crime which the
actor is justified in using force to prevent, or if the other person has committed a felony involving
force or violence.
3-6-11.4
Conduct engaged in by an individual at the direction of a public servant, known by that
individual to be a law enforcement officer, to assist in the investigation of a criminal offense is
justified unless the individual knows or has a firm belief, unaccompanied by substantial doubt,
that the conduct is not within the law enforcement officer’s official duties or authority. For
purposes of this subsection, conduct “not within the law enforcement officer’s official duties or
authority” is conduct in which the law enforcement officer could not lawfully engage in that
officer’s official capacity. When practicable, permission must be obtained from a parent or
guardian of a minor who is under the age of eighteen (18) years and is neither married nor in the
military service of the United States before the minor may engage in conduct, other than the
providing of information, to assist in a criminal investigation under the direct supervision of a
public servant.
3-6-12
3-6-12.1
Use of Force in Self-Defense
Subject to provision of this section, the use of force upon or toward another person is justifiable
when the actor believes that such force is immediately necessary for the purpose of protecting
himself against the use of unlawful force by such other person in the present encounter.
3-6-12.2
The use of force is not justifiable under this section:
a To resist an arrest, to avoid execution of process, or other performance of duty by a
public servant under color of law; or
b To resist force used by the occupier or possessor of property or by another person on
his behalf where the actor knows that the person using the force is doing so under a
claim of right to protect the property, except that this limitation shall not apply if the
actor is a public officer acting in the performance of his duties or a person lawfully
assisting him therein or a person making or assisting in a lawful arrest.
3-6-12.3
To resist force used by the occupier or possessor of property or by another person on his behalf,
where the actor knows that the person using the force is doing so under a claim of right to protect
the property, except that this limitation shall not apply if the actor is a public officer acting in
the performance of his duties or a person lawfully assisting him therein or a person making or
assisting in a lawful arrest. The use of deadly force is not justifiable under this section unless
the actor believes that such force is necessary to protect himself against death, serious bodily
harm, kidnapping, or sexual assault compelled by force or threat; nor is it justifiable if:
a The actor, with the purpose of causing death or serious bodily harm, provoked the use
of force against himself in the same encounter; or
b The actor knows that he can avoid the necessity of using such force with complete
safety by retreating or by surrendering possession of a thing to a person asserting a
claim of right thereto or by complying with demand that he abstain from any action
which he has no duty to undertake except that:
(i) The actor is not obligated to retreat from his dwelling or place of work unless he
was the initial aggressor or is assaulted in his place of work by another person the
actor knows to be wrongfully present; or
(ii) The actor is a public officer justified in using force in the performance of his duties
or a person justified in using force in his assistance or a person justified in using
42
force in making an arrest or preventing such escape because of resistance or
threatened resistance by or on behalf of the person against whom such action is
directed; or
(iii) The actor has entered into mutual combat with another person or is the initial
aggressor unless he is resisting force which is clearly excessive in the
circumstances. A person’s use of defensive force after he withdraws from an
encounter and indicates to the other person that he has done so is justified if the
latter nevertheless continues or menaces unlawful action.
3-6-12.4
The justification afforded by this section extends to the use of confinement as protective force
only if the actor takes all reasonable measures to terminate the confinement as soon as he knows
that he safely can unless the person confined has been arrested on a charge of crime.
3-6-13
3-6-13.1
Use of Force for the Protection of Other Persons
Subject to the provision of this section and of section 3-6-12, the use of force upon or toward
the person of another is justifiable to protect a third person when:
a The person defended would be justified in defending himself;
b The actor believes that his intervention is necessary for the protection of such other
person; and
c The person coming to the defense has not, by provocation or otherwise, forfeited the
right of self-defense.
3-6-14
3-6-14.1
Use of Force for the Protection of Property
Subject to the provision of this section and section 3-6-2 the use of force upon or toward the
person of another is justifiable when the actor believes that such force is immediately necessary:
a To prevent or terminate an unlawful entry or other trespass upon land or a trespass
against or the unlawful carrying away of tangible, moveable property, provided that
such land or moveable property is, or is believed by the actor to be, in his possession
or in the possession of another person for whose protection he acts; or
b To affect an entry or re-entry upon land or to retake tangible moveable property,
provided that the actor believes that he or the person by whose authority he acts or a
person from whom he or such other person derives title was unlawfully dispossessed
of such land or movable property and is entitled to possession, and provided, further,
that:
(i) The force is used immediately or on fresh pursuit after such dispossession; or
(ii) The actor believes that the person against whom he uses force has no claim of right
to the possession of the property and, in the case of land, the circumstances, as the
actor believes that to be, are of such urgency that it would be an exceptional
hardship to postpone the entry or re-entry until a court order is obtained.
3-6-14.2
For purposes of subsection 3-6-14.1 of this section:
a A person who has parted with the custody of the property to another who refuses to
restore it to him is no longer in possession, unless the property is moveable and, was
and still is, located on the land of the person’s possession.
b A person who has been dispossessed of land does not regain possession thereof merely
by setting foot thereon.
c A person who has a license to use or occupy real property is deemed to be in possession
thereof except against the licensor acting under claim or right.
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3-6-14.3
Limitation of Justifiable Use of Force
a The use of force is justifiable under this section only if the actor first requests the
person against whom such force is used to desist from his interference with the
property, unless the actor believes that:
(i) Such request would be useless; or
(ii) It would be dangerous to himself or another person to make the request.
b The use of force to prevent or terminate a trespass is not justifiable under this section
if the actor knows that the exclusion of the trespasser will expose him to substantial
danger of serious bodily harm.
c The use of deadly force is not justifiable under this section unless the actor believes
that the person against whom the force is used:
(i) Is attempting to dispossess him of his dwelling other than under a claim of right to
its possession; or
(ii) Is attempting to commit or consummate arson; or
(iii) Has employed or threatened deadly force against or in the presence of the actor; or
(iv) The use of force, other than deadly force, is necessary to prevent the commission
or the consummation of a crime which would expose the actor or another in his
presence to substantial danger of serious bodily harm.
d The justification afforded by this section extends to the use of confinement as
protective force only if the actor takes all reasonable measures to terminate the
confinement as soon as he knows that he can do so safely unless the person confined
has been arrested on a charge of a crime.
e The justification afforded by this section extends to the use of a device for the purposes
of protecting property only if:
(i) The device is not designed or used in such a manner to cause or known to create a
substantial risk of causing death or serious bodily harm; and
(ii) The use of the particular device to protect the property from the entry or trespass
is reasonable under the circumstances, as the actor believes them to be; and
(iii) The device is one customarily used for such a purpose or reasonable care is taken
to make known to probable intruders the fact that it is used.
f The use of force to pass a person whom the actor believes to be purposely or knowingly
and unjustifiably obstructing the actor from going to a place to which he may lawfully
go is justifiable, provided that:
(i) The actor believes that the person against whom he uses force has no claim of right
to obstruct the actor;
(ii) The actor is not being obstructed from entry or movement on land which he knows
to be in the possession or custody of the person obstructing him, or in the
possession or custody of another person by whose authority the obstructer acts,
unless the circumstances as the actor believes them to be are of such urgency that
it would not be reasonable to postpone the entry or movement on such land until a
court order is obtained; and
(iii) The force used is not greater than would be justifiable if the person obstructing the
actor were using force against him to prevent his passage.
3-6-15
3-6-15.1
Use of Force in Law Enforcement
The use of force by a law enforcement officer upon or toward the person of another is justifiable
when the officer is making or assisting in making a lawful arrest and the officer believes that
such force is immediately necessary to effect a lawful arrest.
44
3-6-15.2
The use of force is not justifiable under this section unless:
a The officer makes known the purpose of the arrest or believes that it is otherwise
known by or can reasonably be made known to the person to be arrested; and
b When the arrest is made under a warrant, and the warrant is valid or believed by the
officer to be valid.
3-6-15.3
The use of deadly force is not justifiable under this section unless:
a The arrest is for a felony; and
b The officer effecting the arrest is authorized to act as a law enforcement officer; and
c The officer believes that the force employed creates no substantial risk of injury to
innocent persons; and
d The officer believes that:
(i) The crime for which the arrest is made involved conduct including the use or
threatened use of deadly force; or
(ii) There is substantial risk that the person to be arrested will cause death or serious
bodily harm if his apprehension is delayed.
3-6-15.4
The use of force to prevent the escape of an arrested person from custody is justifiable when the
force could justifiably have been employed to effect the arrest under which the person is in
custody, except that a guard or other person authorized to act as a law enforcement officer is
justified in using any force, including deadly force, which he believes to be necessary to prevent
escape from a facility used for the detention of persons charged with or convicted of a crime.
3-6-15.5
The use of force upon or toward the person of another is justifiable when the officer believes
that such force is immediately necessary to prevent such other person from committing suicide,
or threatening bodily harm, damage to or loss of property or a breach of the peace, except that:
a Any limitations imposed by the other provisions of this chapter on the justifiable use
of force in self-protection of property, the effectuation of an arrest or the prevention of
an escape from custody shall apply notwithstanding the criminality of the conduct
against which such force is used; and
b The use of deadly force is not, in any event, justifiable under this subsection unless:
(i) The officer believes that there is a substantial risk that the person who he seeks to
prevent from committing a crime will cause death or serious bodily harm to another
unless the commission or the consummation of the crime is prevented and that the
use of force presents no substantial risk of injury to innocent persons; or
(ii) The officer believes that the use of such force is necessary to suppress a riot or
mutiny after the rioters or mutineers have been ordered to disperse and warned, in
any particular manner that the law may require, that such force will be used if they
do not obey.
3-6-15.6
The justification afforded by this section extends to the use of confinement as preventive force
only if the officer takes all reasonable measures to terminate the confinement as soon as he
knows that he safely can unless the person confined has been arrested on a charge of a crime.
3-6-16
3-6-16.1
Use of Force by Persons with Parental, Custodial, or Similar Responsibilities
The use of reasonable force upon a minor is justified under any of the following circumstances:
a When the actor being a parent, guardian, or other person responsible for the care and
supervision of a minor, or other person responsible for the care and supervision of a
minor for a special purpose, or person acting at the direction of any of the foregoing
persons, may use reasonable force upon the minor for the purpose of safeguarding or
45
b
c
d
promoting the minor’s welfare, including prevention and punishment of the minor’s
misconduct, and the maintenance of proper discipline.
If the person using reasonable force for the prevention and punishment of the minor’s
misconduct or the maintenance of proper discipline is a paid caregiver, that person
must be acting under written direction of the parent or guardian of the minor.
The reasonable force used may not create a substantial risk of death, serious bodily
injury, disfigurement, extreme pain, mental distress, or gross degradation.
A guardian or other person responsible for the care and supervision of an individual
who is incompetent, or a person acting at the direction of the guardian or responsible
person, may use reasonable force upon the individual for the purpose of safeguarding
or promoting the welfare of the individual, including the prevention of the individual’s
misconduct, or if the individual is in a hospital or other institution for care and custody,
for the reasonable discipline in the institution. The force used may not create a
substantial risk of death, serious bodily injury, disfigurement, or gross degradation.
3-6-16.2
A person responsible for the maintenance of order in a vehicle, train, vessel, aircraft, or other
carrier, or in a place in which others are assembled, or a person acting at the responsible person's
direction, may use force to maintain order.
3-6-16.3
A duly licensed physician, or a person acting at a duly licensed physician’s direction, may use
force to administer a recognized form of treatment to promote the physical or mental health of
a patient if the treatment is administered:
a In an emergency.
b With the consent of the patient, or, if the patient is a minor or an individual who is
incompetent, with the consent of the patient’s parent, guardian, or other person
entrusted with the patients care and supervision; or
c By order of a court of competent jurisdiction.
d A person may use force upon an individual about to commit suicide or suffer serious
bodily injury, to prevent the death or serious bodily injury of that individual.
3-6-17
3-6-17.1
Justification in Property Crimes
Conduct involving the appropriation, seizure, destruction, or damage to, intrusion on or
interference with property is justifiable under circumstances which would establish a defense or
privilege in a civil action based thereon, unless:
a This code or law defining the offense deals with the specified situation involved; or
b A legislative purpose to exclude the justification claimed otherwise plainly appears.
3-7
3-7-1
3-7-1.1
Criminal Responsibility
Mental Disease or Defect Excluding Responsibility
A person is not responsible for criminal conduct if at the time of such conduct as a result of
mental disease or defect he lacks substantial capacity either to appreciate the criminality of his
conduct or conform his conduct to the requirements of law.
3-7-1.2
As used in this chapter, the terms, “mental disease or defect”, do not include an abnormality
manifested only by repeated criminal or otherwise anti-social conduct.
3-7-2
3-7-2.1
Evidence of Mental Disease or Defect Admissible When Relevant to Element of the Offense
Evidence that the defendant suffered from a mental disease or defect is admissible whenever it
is relevant to prove that the defendant did or did not have a state of mind which is an element of
offense.
46
3-7-3
3-7-3.1
Mental Disease or Defect Excluding Responsibility is Affirmative Defense: Requirement of
Notice: Form of Verdict and Judgment When Finding of Irresponsibility is Made
Mental disease or defect excluding responsibility is an affirmative defense.
3-7-3.2
Evidence of mental disease or defect excluding responsibility is not admissible unless the
defendant, at the time of entering his plea of guilty or within ten (10) days thereafter or at such
time as the court may for good cause permit, files a written notice of the purpose to rely on such
defense.
3-7-3.3
When the defendant is acquitted on the grounds of mental disease or defect excluding
responsibility, the verdict and the judgment shall so state.
3-7-4
3-7-4.1
Mental Disease or Defect Excluding Fitness to Proceed
No person who, because of mental disease or defect lacks capacity to understand the proceedings
against him or to assist in his own defense shall be tried, convicted, or sentenced for the
commission of an offense so long as such incapacity endures.
3-7-5
3-7-5.1
Psychiatric Examination of Defendant with Respect to Mental Disease or Defect
Whenever the defendant has filed a notice of intention to rely on the defense of mental disease
or defect excluding responsibility, or there is reason to doubt his fitness to proceed, or reason to
believe that mental disease or defect of the defendant will otherwise become an issue in the
proceeding?, the court shall appoint at least one qualified psychiatrist to examine and report the
mental condition of the defendant. The court may order the defendant to be committed to a
hospital or other suitable facility for the purpose of the examination for a period of not exceeding
sixty (60) days or such longer period as the court determines to be necessary for the purpose and
may direct that a qualified psychiatrist, retained by the defendant, be permitted to witness, and
participate in the examination.
a In such an examination any method may be employed which is accepted by the medical
profession for the examination of those alleged to be suffering from mental disease or
defect.
b The report of the examination shall include the following:
(i) A description of the nature of the examination.
(ii) A diagnosis of the mental condition of the examination.
(iii) If the defendant suffers from a mental disease or defect, psychiatrist shall include
an opinion as to the defendant’s capacity to understand and assist in his own
defense.
(iv) When directed by the court, an opinion as to the capacity of the defendant to have
state of mind which is an element of the offense charged.
c If the examination cannot be conducted by reason of the unwillingness of the defendant
to participate therein, the report shall so state and shall include, if possible, an opinion
as to where such unwillingness of the defendant was the result of mental disease or
defect. The report of the examination shall be filed with the clerk of court who shall
cause copies to be delivered to the Tribal prosecutor and to counsel for the defendant.
3-7-6
Determination of Fitness to Proceed; Effect of Finding of Unfitness; Proceeding if Fitness is
Regained
When the defendant’s fitness to proceed is drawn in question, the issue shall be determined by
the court. If neither the prosecuting attorney nor counsel for the defendant contests the finding
of the report filed pursuant to section 3-7-5, the court shall hold a hearing on the issue. If the
report is received as evidence upon such hearing, the party who contests the finding thereof shall
3-7-6.1
47
have the right to summon and to cross examine the psychiatrists who drafted the report and to
offer evidence upon the issue.
3-7-6.2
If the court determines that the defendant lacks fitness to proceed, the proceeding against him
shall be suspended except as provided in subsection 3-7-6.3 of this section, and the court shall
commit him to the appropriate institution by order for so long as such unfitness shall endure.
When the court, on its own motion or upon the application of the tribal prosecutor, determines
after a hearing, if a hearing is requested, that the defendant has regained fitness to proceed, the
proceeding shall be resumed. If, however, the court is of the view that so much time has elapsed
since the commitment of the defendant that it would be unjust to resume the criminal proceeding,
the court may dismiss the charge and may order the defendant to be discharged or, subject to the
law governing the civil commitment of person suffering from mental disease or defect, order
the defendant to be committed to the appropriate institution.
3-7-6.3
The fact that the defendant is unfit to proceed does not preclude any legal objection to the
prosecution which is susceptible of fair determination prior to trial and without the personal
participation of the defendant.
3-7-7
Determination of Responsibility on Basis of Report; Access to Defendant by Psychiatrist of His
Own Choice
If the report filed pursuant to section 3-7-5 finds that the defendant, at the time of the criminal
conduct charged, suffered from a mental disease or defect which substantially impaired his
capacity to appreciate the criminality of his conduct or to conform his conduct to the
requirements of law, and the court, after a hearing, if a hearing is requested by the Tribal
prosecutor or the defendant’s attorney, is satisfied that such impairment was sufficient to
exclude responsibility, the court on motion of the defendant’s attorney shall enter judgment of
acquittal on the ground of mental disease or defect excluding responsibility.
3-7-7.1
3-7-7.2
When, notwithstanding the report filed pursuant to section 3-6-5, the defendant wishes to be
examined by a qualified psychiatrist or other expert of the defendant’s own choice, such
examiner shall be permitted to have reasonable access to the defendant for the purpose of such
examination.
3-7-8
3-7-8.1
Form of Expert Testimony When Issue of Responsibility Brought to Trial
Upon the trial, the psychiatrist who reported pursuant to section 3-6-5 may be called as a witness
by the prosecution, the defendant’s attorney, or the court. On the issue of defendant’s
responsibility being tried before a jury, the jury may be informed that the psychiatrist(s) were
designated by the court or the superintendent of the hospital at the request of the court, as the
case may be. If called by the court, the witness shall be subject to cross-examination by the
prosecution and by the defendant’s attorney. Both the prosecution and the defendant’s attorney
may summon any other qualified psychiatrist or other expert to testify, but no one who has not
examined the defendant shall be competent to testify to an expert opinion with respect to the
mental condition or responsibility of the defendant, as distinguished from the validity of the
procedure followed by, or the general scientific proposition stated by, another witness.
3-7-8.2
When a psychiatrist or other expert who has examined the defendant testifies concerning
defendant’s mental condition, the psychiatrist shall be permitted to make a statement as to the
nature of the defendant’s mental condition, and the psychiatrist’s examination, the psychiatrist’s
diagnosis of the mental condition of the defendant at the time of the criminality of the
defendant’s conduct, or for the defendant to conform his conduct to the requirements of law, or
for the defendant to have a particular state of mind, which is an element of the offense charged,
48
which may or may not have been impaired as a result of mental disease or defect at that time.
The psychiatrist shall be permitted to make an explanation reasonably serving to clarify the
psychiatrist’s diagnosis and opinion and may be cross-examined as to any matter bearing on the
psychiatrist’s competency, credibility, or the validity of the psychiatrist’s diagnosis or opinion.
3-7-9
3-7-9.1
Legal Effect of Acquittal on the Grounds of Mental Disease or Defect Excluding Responsibility;
Commitment; Release or Discharge
When a defendant is acquitted on the grounds of mental disease or defect excluding
responsibility, the court shall order him to be committed to the custody of the appropriate
institution for care and treatment.
3-7-9.2
If the director of the custodial institution is of the view that a defendant committed to his custody,
pursuant to subsection 3-7-9.1, may be discharged or released on conditions without danger to
himself or to others, the director shall make an application for the discharge or release of the
defendant in a report to the court by which the defendant was committed and shall transmit a
copy of such application and report to the court and tribal prosecutor. The court shall thereupon
appoint at least two qualified psychiatrists to examine the defendant and to report within sixty
(60) days, or a such longer period as the court determines to be necessary for the purpose, of
their opinion as to the defendant’s mental condition.
3-7-9.3
If the court is satisfied by the report filed pursuant to subsection 3-7-9.2 and such testimony of
the reporting psychiatrists as the court deems necessary, that the defendant may be discharged
or released on conditions without danger to himself or others, the court shall order the
defendant’s discharge or release on such conditions as the court determines to be necessary. If
the court is not so satisfied, it shall promptly order a hearing to determine whether the defendant
may safely be discharged or released. According to the determination of the court upon the
hearing, the defendant shall thereupon be discharged or released on such conditions as the court
determines to be necessary or shall be recommitted to the custody of the director of the custodial
institution, subject to discharge or release, only in accordance with the procedure prescribed
above in subsection 3-7-8.2.
3-7-9.4
If, within one year or sooner as the situation may require, after the conditional release of the
defendant, the court shall determine, after hearing evidence, that the conditions of release have
not been fulfilled and that for the safety of others the defendant’s conditional release should be
revoked, the court shall forthwith order the defendant to be recommitted to the director of the
appropriate custodial institution subject to discharge or release only in accordance with the
procedure prescribed above in subsection 3-7-8.2.
3-7-9.5
A committed defendant may make an application for discharge or release to the court by which
he was committed, and the procedure to be followed upon such application shall be the same as
that prescribed above in subsection 3-7-8.2. However, no such application by the defendant need
be considered until he has been confined for not less than one month from the date of the order
of commitment. If the determination of the court be adverse to the application, the defendant
shall not be permitted to file a further application until two (2) months have elapsed from the
date of any preceding hearing on an application for the defendant’s release or discharge.
49
3-7-10
3-7-10.1
3-7-11
3-7-11.1
Statement for Purpose of Examination or Treatment Inadmissible Except on Issue of Mental
Condition
Any statement made by the defendant subjected to psychiatric examination or treatment
pursuant to sections 3-7-5, 3-7-6, and 3-7-7 for the purposes of such examination or treatment
shall not be admissible in evidence against the defendant in any criminal proceeding on any
issue other than that of the defendant’s mental condition, whether or not it would otherwise be
deemed privileged communication.
Immaturity Excluding Criminal Conviction; Transfer of Proceeding to Juvenile Court
A person shall not be tried for or convicted of an offense if:
a At the time of the conduct charged to constitute the offense, he was less than sixteen
(16) years of age; or
b At the time of the conduct charged to constitute the offense, he was sixteen (16) or
seventeen
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