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The Law and Order Code of the Ute Indian Tribe of the Uintah and Ouray Reservation

Received: 1988

TITLE XII - UTE INDIAN RULES OF CRIMINAL PROCEDURE

 

I. SCOPE, PURPOSE AND CONSTRUCTION

Rule 1. Scope, Purpose and Construction.

(1) These rules govern the procedure in all criminal proceedings in the Ute Indian Tribal Court and all preliminary or supplementary procedures as specified herein.

(2) Every proceeding in which a person is charged with an offense of any degree and brought to trial and punished is a criminal proceeding.

(3) 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.

II. PRELIMINARY PROVISIONS

Rule 2. Prosecution of Offenses.

(1) No person shall be punished for an offense except upon a legal conviction, including a plea or admission of guilt in open court, by a court of competent jurisdiction, provided, however, that no incarceration or other disposition of one accused of an offense prior to trial in accordance with these rules shall be deemed a punishment.

(2) All criminal proceedings shall be prosecuted in the name of the Ute Indian Tribe, Plaintiff, against the person charged with an offense, referred to as the Defendant.

Rule 3. Rights of Defendant.

In all criminal proceedings, the Defendant shall have the following rights:

(1) To appear and defend in person or by counsel, except:

(a) Trial of Class B and C offenses may be prosecuted without the presence of the Defendant upon a showing that the Defendant has received actual notice five (5) days prior to the proceeding;

(b) The Defendant may represent himself or be represented by an adult enrolled Tribal member, or by any attorney admitted to practice before the Ute Tribal Court, but no Defendant shall have the right to have appointed professional counsel provided at the tribe's expense.

(2) To be informed of the nature of the charges against him and to have a copy thereof;

(3) To testify in his own behalf, or to refuse to testify regarding the charge against him, provided, however, that once a defendant takes the stand to testify on any matter relevant to the immediate proceeding against him, he shall be deemed to have waived all right to refuse to testify in that criminal proceeding;

(4) To confront and cross examine all witnesses against him, subject to the Rules of Evidence;

(5) To compel by subpoena the attendance of witnesses in his own behalf;

(6) To have a speedy public trial by an impartial judge or jury as provided in these rules;

(7) To appeal in all cases;

(8) To prevent his present spouse from testifying against him, except:

(a) in any casein which the offense charged is alleged to have been committed against the spouse, or the children of either the spouse or the defendant, or against the marital relationship;

(b) Any testimony by the spouse in the defendant's behalf will be deemed a waiver of this privilege.

(9) Not to be twice put in jeopardy by the Ute Tribal Court for the same offense.

Rule 4. Limitations.

(a) Class A offenses — 5 years;

(b) Class B offenses — 2 years;

(c) Class C offenses — 1 year.

 

III. PRELIMINARY PROCEEDINGS

Rule 5. The Complaint

(1) The complaint is a written statement of the essential facts constituting the offense charged.

(2) All complaints shall be made upon oath before a judge of the Ute Tribal Court.

(3) The complaint must state:

(a) The name of the person accused, if known, or some other name if not known plus whatever description of the person accused is known;

(b) The general location where the offense was committed;

(c) The general name and code designation of the offense;

(d) A short, concise statement of the specific acts or omissions to act complained of;

(e) The person against whom or against whose property the offense was committed, if known, otherwise no statement need be made;

(f) The date and approximate time of the commission of the offense, if known;

(g) The name of the person filing the complaint.

No minor omission from or error in the form of the complaint shall be grounds for dismissal of the case unless some significant prejudice against the defendant can be shown to result therefrom.

(4) It shall not be necessary to charge a specific class (Class A, B, or C) of an offense which depends for the degree of punishment upon some factual finding (e.g., the value of the property taken in a theft offense). If a factual allegation is made which will supply the information needed to determine the degree of the offense, such allegation shall be considered as true for all preliminary matters (e.g., setting bail). If no such factual allegation is made, the offense shall be considered, for all preliminary matters, to be of the least degree possible under the facts alleged.

(5) The judge issuing the complaint shall examine such complainant under oath to ascertain his knowledge as to the facts alleged in the complaint and determine if probable cause exists to issue such complaint.

(6) If it appears from the complaint and the examination of the complainant that probable cause exists to believe that an offense has been committed, the judge will issue the complaint by affixing his signature thereto.

Rule 6. Arrest — Warrant or Summons.

(1) Upon the issuance of the complaint, a warrant of arrest or a summons shall issue to bring the defendant named in the complaint before a judge of the Ute Tribal Court.

(2) Whenever it is provided that a warrant may issue for the arrest of a person charged with a commission of a Class B or C offense, the judge shall issue, or cause to be issued, a summons instead of a warrant, unless he has reasonable ground to believe that the person will not appear upon a summons, in which case he shall issue a warrant of arrest. A warrant of arrest shall issue in all cases in which a Class A offense is charged.

(a) Such service may be accomplished any place within the exterior boundaries of the Uintah and Ouray Indian Reservation as defined in Article I of the Constitution of the Ute Indian Tribe of the Uintah and Ouray Reservation.

(b) The date, time, and place of service or arrest shall be endorsed on the warrant or summons along with the name of the person serving such which shall be returned to the Court, and a copy of which, so endorsed, shall be left with the person served.

(c) An officer need not have the warrant in his possession at the time of arrest; but, if he does not, he shall inform the defendant that a warrant has been issued, the nature of the charge, and shall provide the defendant with a copy of the arrest warrant and complaint not later than at the time of entering a plea by the defendant.

(d) If reasonably possible, a properly endorsed copy of the summons or warrant plus a copy of the complaint shall be given to the defendant at the time of service or arrest.

Rule 7. Arraignment.

(4) The defendant shall be provided with a copy of the complaint if he has not before received one.

Rule 8. Commitments.

(2) Pending investigation of charges or pending dial, a temporary commitment shall be issued.

Rule 9. Joinder of Offenses and of Defendants.

Rule 10. Pleas.

(1) A defendant may plead guilty or not guilty. The Court shall not accept a plea of guilty without first addressing the defendant personally and determining that the plea is made voluntarily with understanding of the nature of the charge and the consequences of the plea. If the defendant refuses to plead or if the Court refuses to accept a plea of guilty, the Court shall enter a plea of not guilty. The Court shall not enter a judgment upon a plea of guilty unless it is satisfied that there is a factual basis for the plea.

(2)The defendant, with the consent of the Court and of the prosecuting attorney, may plead guilty to any lesser offense than that charged which is included in the offenses charged in the complaint or to any lesser degree of the offense charged.

Rule 11. Pleadings and Motions Before Trial; Defenses and Objections.

(1) Pleadings in criminal proceedings shall consist of the complaint and the plea of either guilty or not guilty. All other pleas and motions shall be made in accordance with these rules.

(2) Motions raising defenses and objections may be made as follows:

(a) Any defenses or objections which are capable of determination other than at trial may be raised before dial by motion.

(b) Defenses and objections based on defects in the institution of the prosecution of the complaint other than that it fails to show jurisdiction in the Court or fails to charge an offense may be raised on motion only before trial or such shall be deemed waived, unless the Court for good cause shown grants relief from such waiver. Lack of jurisdiction or failure to charge an offense may be raised as defenses or noticed by the Court on its own motion at any stage of the proceeding.

(c) Such motions shall be made in writing and filed with the Court at least five (5) business days before the day set for trial. Such motions will be argued before trial on the date of trial unless the Court directs otherwise. Decision on such motions shall be made by the judge and not by the jury.

(d) If a motion is decided against a defendant, the trial shall proceed as if no motion were made. If a motion is decided in favor of a defendant, the judge shall alter the proceedings or enter judgment as is appropriate in light of the decision.

Rule 12. Trial Together of Charges.

(1) The Court may order two or more defendants tried together if they could have been joined in a single complaint or may order a single defendant cried on more than one complaint at a single trial.

(2) If it appears that a defendant or the Ute Indian Tribe is prejudiced by a joinder of offenses or other defendants for trial together, the Court may order separate complaints and may order separate trials or provide such other relief as justice requires. In ruling on a motion for severance, the Court may order the Tribe to deliver to the Court for inspection in chambers, any statements made by a defendant which the Tribe intends to introduce in evidence at the trial.

Rule 13. Discovery and Inspection.

(1) The police, or prosecutor, shall, upon request, permit the defendant or his attorney to inspect and copy any statements or confessions, or copies thereof, made by the defendant if such are within the possession or control of reasonably obtainable by the police or prosecution. The police and prosecution shall make similarly available copies of reports of physical, mental or scientific tests or examinations relating to or done on the defendant

(2) The defendant or his attorney shall reveal by written notice to the Court at least five (5) working days before trial the names of any witnesses upon whom the defense intends to rely to provide an alibi defense for the defendant. Failure to provide such notice will prevent the use of such witnesses by the defense unless it can be shown by the defense that prior notice was impossible or that no prejudice to the prosecution has resulted, in which case the judge may order the trial delayed or make such other orders as tend to assure a just determination of the case.

Rule 14. Subpoena.

(1) A subpoena is an order of court issued by a judge or the clerk of the Court. It shall contain the name of the Court, the title of the case, and shall command each person to whom it is directed to attend and give testimony or produce for use at vial objects names, at the time and place specified therein. The clerk may issue subpoenas, signed and otherwise complete except for the name of the person or thing subpoenaed, to a defendant upon request.

(2) A subpoena may be served by any police officer or court employee or any person over the age of 18 years who is not a party. Service shall be accomplished by handing a copy of the subpoena to the person named therein. No fees or mileage allowance need be tendered with service.

(3) A subpoena may be served any place within the territorial jurisdiction of the Ute Tribal Court.

 

IV. TRIAL

Rule 15. Trial by Jury or By the Court.

(1) All trials of offense shall be by the Court without a jury unless the defendant files a request for a jury trial and ten dollars ($10.00) jury fee not less than two weeks prior to the date set for trial. A judge may in his discretion waive the ten dollar ($10.00) jury fee.

(2) Juries shall be composed of six (6) members with one alternate if such is deemed advisable by the Court.

(3) In a case tried without a jury, the judge shall make a general finding of guilt or innocence and shall, upon request of any party, make specific findings which may be embodied in a written decision.

Rule 16. Trial Jurors.

(1) Jurors shall be drawn from the list of eligible jurors, prepared as provided elsewhere in this Law and Order Code, by the clerk in advance of trial. Jurors to sit at trial shall be drawn by lot from the group of potential jurors by the judge or clerk at trial.

(2) The Court shall permit the defendant or his counsel and the prosecutor to examine the jurors and the Court itself may make such an examination.

(3) Challenges regarding jury members may be taken as follows:

(a) Each side shall be entitled to three (3) peremptory challenges;

(b) Either side may challenge any juror for cause;

(c) An alternate juror shall be treated as a regular juror for purpose of challenges.

(4) The alternate juror shall be dismissed prior to the jury's retiring to deliberate if he has not first been called to replace an original juror who has become for any reason unable or disqualified to serve.

Rule 17. Judge Disability.

(1) If by reason of death, sickness or other disability, the judge before whom a jury trail has commenced is unable to proceed with the trail, any other Tribal judge may, upon certifying that he has familiarized himself with the record of the trial, proceed with the trail.

(2) If by reason of death, sickness or other disability, the judge before whom the defendant has been tried is unable to perform the required duties of a judge after the verdict or finding of guilt, any other Tribal judge may perform those duties unless such judge feels he cannot fairly perform those duties in which case a new trial may be granted. A new trial shall not be granted if all that remains to be done is the sentencing of a defendant.

Rule 18. Evidence.

Rule 19. Expert Witnesses and Interpreters.

(1) Either party may call expert witnesses of their own selection and each bear the cost of such.

(2) The Court may appoint an interpreter of its own selection and each party may provide their own interpreters. An interpreter through whom testimony is received from a defendant or witness or communicated to a defendant or other witness shall be put under oath to faithfully and accurately translate and communicate as required by the Court.

(3) The trial judge or clerk may act as interpreter with the consent of all parties.

Rule 20. Motion for Judgment of Acquittal.

Rule 21. Instructions.

At the close of the evidence or at such earlier time during the trial as the Court reasonably direct, any party may file written requests that the Court instruct the jury on the law as set forth in the request. At the same time, copies of such requests shall be furnished to adverse parties. The Court shall inform counsel of its proposed action upon the requests prior to the arguments of counsel to the jury, but the Court shall instruct the jury after the arguments are completed. No party may assign as error any portion of the charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of the objection. Opportunity shall be given to make the objection out of the hearing or if necessary out of the presence of the jury.

Rule 22. Verdict.

(1) The verdict of the jury shall be unanimous. It shall be returned by the jury to the judge in open court.

(2) If there are two or more defendants, the jury may at any time during its deliberations return a verdict or verdicts with respect to a defendant or defendants as to whom it has agreed; it the jury cannot agree as to all, the defendant or defendants as to whom it does not agree may be tried again.

(3) The defendant may be found guilty of an offense necessarily included in the offense charged or of an attempt to commit either the offense charged or an offense necessarily included therein if such an attempt is an offense, without the necessity of the defendant having been formally charged with such lesser offenses or with attempt.

(4) When a verdict is returned and before it is recorded, the jury shall be polled at the request of any party or upon the Court's own motion. If upon the poll there is not unanimous concurrence, the jury may be directed to retire for further deliberations or may be discharged.

 

V. JUDGMENT

Rule 23. Sentence and Judgment.

(2) Sentence shall be set forth as follows:

(a) Sentence shall be imposed without unreasonable delay as provided in this Code. Pending sentence the Court may commit the defendant to jail or continue or alter the bail. Before imposing sentence, the Court shall afford counsel an opportunity to speak on behalf of the defendant and shall address the defendant personally and ask him if he wishes to make a statement in his own behalf and to present any information in mitigation of punishment.

(b) After imposing sentence in a case which has gone to trial on a plea of not guilty, the Court shall advise the Defendant of his right to appeal.

(3) The determination and imposition of sentence shall be in accordance with the provisions on sentencing set forth in the Ute Indian Criminal Code.

(4) A motion to withdraw a plea of guilty may be made only before sentence is imposed or imposition of sentence is suspended; but to correct manifest injustice the Court after sentence may set aside the judgment of conviction and permit the Defendant to withdraw his plea.

Rule 24. New Trial.

The Court, on motion of a defendant, may grant a new trial to him if required in the interest of justice. If trial was by the Court without a jury, the Court, on motion of a defendant for a new trial, may vacate the judgment, if entered, take additional testimony, and direct the entry of a new judgment. A motion for a new trial based on the ground of newly discovered evidence may be made only within one month after final judgment, but if an appeal is pending the Court may grant the motion only on remand of the case. A motion for a new trial based on any other grounds shall be made within seven (7) days after verdict or finding of guilty or within such further time as the Court may fix during the seven-day period.

Rule 25. Arrest of Judgment.

The Court, on motion of a Defendant, shall dismiss the action if the complaint does not charge an offense of if the Court was without jurisdiction of the offense charged. The motion in arrest of judgment shall be made within seven (7) days after verdict or finding of guilty or plea of guilty, or within such further time as the Court may fix during the seven-day period.

Rule 26. Correction or Reduction of Sentence.

The Court may correct an illegal sentence at any time and may correct a sentence imposed in an illegal manner within thirty days after the sentence is imposed, or within thirty days after receipt by the Court of a mandate issued upon affirmance of the judgment or dismissal of the appeal. The Court may also reduce a sentence upon revocation of probation as provided in this Code.

Rule 27. Clerical Mistakes.

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.

 

VI. APPEAL

Rule 28. Right of Appeal; How Taken.

(1) The defendant has the right to appeal from the following:

(a) A final judgment of conviction;

(b) From an order made, after judgment, affecting his substantial rights.

(2) The Tribe has the right to appeal from the following:

(a) A judgment of dismissal in favor of the Defendant upon a motion to dismiss based on any procedural irregularity occurring before trial;

(b) An order arresting judgment or acquitting the defendant contrary to the verdict of the jury or before such verdict can be rendered;

(c) An order of the Court directing the jury to find for the Defendant;

(d) An order made after judgment affecting the substantial rights of the Tribe.

(3) A notice of appeal must be filed within 10 days of the entry of the final judgment or other appealable order and such must be served on all parties except the party filing the appeal.

(4) The Clerk of the trial court will prepare and transmit to the appellate court the record of the case appealed including a transcript or copy of the minutes taken in alt proceedings relevant thereto.

(5) The party taking the appeal shall be referred to as the appellant and the other party as the respondent. The name of the case will be the same as the name used at trial except the names of parties not involved in the appeal may be omitted.

(6) Within ten (10) days after the receipt by the appellate court of the trial court record, the appellant shall file a brief supporting his position on appeal. Within twenty (20) days after receipt of a copy of appellant's brief, the respondent shall file its brief. As soon thereafter as possible, the appellate court shall decide the case and may schedule and hold a hearing on the appeal. Each party shall file four copies of its brief with the Court.

Rule 29. Stay of Judgment and Relief Pending Review.

(1) A sentence of imprisonment may be stayed if an appeal is taken and the defendant may be given the opportunity to make bail. Any defendant not making bail or otherwise obtaining release pending appeal shall have all time spent in incarceration counted towards his sentence in the matter under appeal.

(2) A sentence to pay a fine or a fine and costs, may be stayed pending appeal upon motion of the defendant but the Court may require the Defendant to pay such money subject to return if the appeal should favor the defendant and negative the requirement for paying such.

Rule 30. Appellate Court Review of Appeal.

(1) If the appeal is irregular in any substantial particular, the appellate court may order, upon motion of the respondent, either the correction of the defects or the dismissal of the appeal.

(2) The appellate court will decide the appeal on the basis of the briefs submitted without oral argument unless oral argument is requested by any party to the appeal or by the Court on its own motion.

(3) The appellate court will issue a written opinion or such separate opinions as required to fully explain the court's disposition of the case. No order or disposition of an appeal shall be effective unless concurred in by at least two (2) judges though their reasoning for such disposition need not concur.

(4) The appellate court shall make one of the following determinations of the appeal:

(a) Affirm the trial court result;

(b) Reverse or vacate the trial court judgment and remand for disposition in accordance with the order of the appellate court;

(c) The judgment of the trial court will be deemed affirmed if no majority disposition can be reached by the appellate court.

VII. GENERAL PROVISIONS

Rule 31. Search and Seizure

(1) A search warrant authorized under this rule may be issued by a Tribal judge on request of a Tribal police officer, or any police officer or law enforcement officer of the federal, state or municipal government.

(2) A warrant may be issued under this rule to search for and seize any

(a) Property that constitutes evidence of the commission of a crime;

(b) Contraband, the fruits of crime, or things otherwise criminally possessed;

(c) Property designed or intended for use or which is or has been used, as the means of committing a criminal offense.

(3) A warrant shall issue only on an affidavit or affidavits sworn to before a Tribal judge and establishing grounds for issuing the warrant. If the judge is satisfied that grounds for the application exist or that there is probable cause to believe that they exist, he shall issue a warrant identifying the property and naming or describing the person or place to be searched. The finding of probable cause may be based on hearsay evidence either in whole or in part. Before ruling on a request for a warrant, the judge may require the affiant to appear personally and be examined under oath. The warrant shall be directed to any police or law enforcement officer or official and shall command such person or persons to search, within a specified period of time not to exceed 10 days, the person or place named for the property specified. The warrant shall be served in the daytime unless the issuing judge otherwise authorizes on the warrant. The warrant shall be returned to the judge after service or at the end of the 10-day period.

(4) The officer taking property under a 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 or shall leave the copy and receipt at the place from which the property was taken. The return to the issuing judge shall be made promptly and shall be accompanied by an inventory of the property taken.

(5) A person aggrieved by an unlawful search and seizure may move the Tribal court for the return of the property on the ground that he is entitled to lawful possession of the property illegally seized. The judge may 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 at any hearing or trial.

(6) No law enforcement officer shall search or seize any premises, property or person without a search warrant unless he knows or has reasonable cause to believe that the person in possession of such property is engaged in the commission of an offense or such is done incident to a lawful arrest or under such other circumstances in which it would not be reasonable to require the obtaining of a warrant prior to the search.

(7) A law enforcement officer may stop any person in a public place whom he has probable cause to believe is in the act of committing an offense, or has committed an offense, or is attempting to commit an offense and demand of him his name, address, an explanation of his actions and may, if he has reasonable grounds to believe his own safety or the safety of others nearby is endangered, conduct a frisk type search for weapons of such person.

(8) The term "property" is used in this rule to include documents, books, papers, and any other tangible object. The term "daytime" as used in this rule shall mean the hours from 6:00 o'clock a. m. to 10:00 o'clock p. m., according to local time.

Rule 32. Arrest.

(1) An arrest is the taking of a person into custody in the manner authorized bylaw. An arrest may be made by either a police or law enforcement officer or by a private person.

(2) A police or law enforcement officer may make an arrest in obedience to an arrest warrant, or he may, without a warrant, arrest a person:

(a) For an offense committed in his presence;

(b) When he has reasonable cause for believing the person to have committed an offense, although noon his presence, and there is reasonable cause for believing that such person before a warrant can be obtained may

(i) flee the jurisdiction or conceal himself to avoid arrest, or

(ii) destroy or conceal evidence of the commission of an offense, or

(iii) injure or annoy another person or damage property belonging to another person.

(c) When the person arrested has committed a Class A or B offense although noon his presence;

(d) When a Class A or B offense has, in fact, been committed and he has reasonable cause to believe the person arrested committed such offense;

(e) Upon the verbal complaint of another that an offense has been committed and that the person arrested has committed it;

(f) At night, when there is reasonable cause to believe that he has committed an offense.

(3) A private person may arrest another

(a) For an offense committed or attempted in his presence;

(b) When the person arrested has committed a Class A offense although not in his presence;

(c) When a Class A offense has been committed and he has reasonable cause for believing the person arrested to have committed it.

(a) Must inform the person to be arrested of his intention to arrest him, of the cause or reason for the arrest, and his authority to make it, except when the person to be arrested is actually engaged in the commission of, or an attempt to commit an offense, or is pursued immediately after its commission or an escape or if such is not reasonably possible under the circumstances;

(b) Must show the warrant of arrest if such exists and is demanded as soon as is practicable;

(c) If a law enforcement officer, may use reasonable force and use all necessary means to effect the arrest if the person to be arrested either flees or forcibly resists after receiving information of the officer's intent to arrest;

(d) If a law enforcement officer, may break open a door or window of a building in which the person to be arrested is, or is reasonably believed to be, after demanding admittance and explaining the purpose for which admittance is desired;

(e) May search the person arrested and take from him and put into evidence all weapons he may have about his person;

(f) Shall, as soon as is reasonably possible, deliver the person arrested to a police officer, or do as commanded by the arrest warrant or deliver the person arrested to the jail and obtain a complaint and arrest warrant;

(g) May, if a law enforcement officer, and in fresh pursuit, continue in such fresh pursuit and arrest upon capture the person pursued even if such occurs outside the territorial boundaries of the Uintah and Ouray Indian Reservation. All persons so arrested may be returned to the Reservation by the arresting officer if the arrest occurs in the State of Utah. Otherwise, the arrested person will be turned over to local police officials pending extradition proceedings.

Rule 33. Extradition.

(1) The Chief Judge, with the consent of the Tribal Business Committee, may, upon receipt of certified copies of a complaint, information or indictment, and arrest warrant plus a request to extradite from the executive authority of any Tribal, state or the federal government, cause to be arrested and delivered to such executive authority, any person subject to the jurisdiction of the Ute Tribal Court who is charged with a felony and who has fled from justice and is seeking to use the Reservation as a refuge.

(2) The Tribal Business Committee shall be the only entity which may request the extradition to the Reservation of any person otherwise subject to the jurisdiction of the Ute Tribal Court who has committed a Class A or a Class B offense on the Reservation and thereafter fled from the Reservation to avoid prosecution.

Rule 34. Bail; Release From Custody.

(1) Except as herein provided, all persons arrested for offenses under this Law and Order Code and incarcerated shall be given the opportunity to make bail and be released pending their trial or appeal.

(2) A bail schedule for Class B and C offenses shall be adopted by the Court and a defendant may obtain release from jail at any time prior to arraignment by posting the amount or amounts of bail specified in the bail schedule for the offense or offenses charged; provided, however, that if the arresting officer or complaining witness shall certify to the jailer, or if the jailer shall certify based on his own observation, that the defendant is at the time he is brought to the jail unconscious or in an intoxicated or apparently intoxicated condition, or for any reason does not appear to be in a conscious and sober condition, such defendant shall not be allowed to post bail according to the bail schedule for 8 hours. The defendant shall be informed by the jailer of his right to make bail at the appropriate time such is available. Bail for Class A offenses may be set only by a judge upon consideration of the relevant factors and must be set or denied within 24 hours following arrest.

(3) At the arraignment or other appropriate time, the judge shall set bail at an amount, not to exceed twice the maximum fine payable for the offense charged, which will tend to assure the appearance of the defendant at trial or at such time as his appearance is necessary. A defendant may at arraignment request that any bail posted under the bail schedule be reduced or that he be released as under (4) below.

(4) The judge may at his discretion release the defendant on his own recognizance, if it appears substantially certain, considering all relevant factors, that the defendant will appear at the appointed time.

(5) The required bail may be tendered in the form of cash, or a bail bond executed by two or more reliable persons as sureties subject to the jurisdiction of the Court in the form which the Court shall by rule direct.

(6) In the event the defendant fails to appear as required, the Court will forfeit any cash deposited or order the sureties of the bail bond to pay the designated amount to the Court. The liability of the sureties may be enforced by order of the Court without the necessity of an independent action or judgment.

(7) The Court may order the forfeiture of bail for non-appearance set aside if it appears that justice does not require the enforcement of the forfeiture.

(8) The Court may deny release on bail pending trial or appeal when a Class A offense is involved and it appears reasonably certain that the defendant will pose a serious threat to the safety and well being of the Reservation and its residents if released.

(9) The right to be released on bail as provided herein shall not accrue until charges under this Law and Order Code shall have been filed. Persons incarcerated in the Tribal jail for violation of federal or state laws shall be subject to be released on bail by the jurisdiction under whose authority the arrest was made according to the provisions of the laws under which their arrest was made. A person arrested for violation of federal law shall not be entitled to be released on bail until the prosecution of such charges has been declined by the U.S. Attorney, plus a reasonable time thereafter, not to exceed 36 hours after receipt of notification of such declination, in which charges for violation of this Law and Order Code, if any, may be filed.

Rule 35. Time Computations.

In computing any period of time in these Rules, the day of the act or event from which the designated period begins to run shall not be included, and the last day of the period will be included unless it is a Saturday or Sunday or a legal holiday. If a time period prescribed is less than 7 days, intermediate Saturdays, Sundays and legal holidays shall not be counted.

Rule 36. Motions.

An application to the Court for an order shall be by motion. A motion other than one made at trial or hearing shall be in writing unless the Court permits it to be made orally. It shall state the grounds upon which it is made and shall set forth the relief or order sought. It may be supported by affidavit and/or a memorandum or points and authorities.

Rule 37. Dismissal.

(1) The prosecuting attorney or representative of the Tribe serving as prosecuting attorney may move that a complaint be dismissed and upon the Court's granting such motion the prosecution of that complaint shall cease, the defendant shall be released and any bail or bail bond released. Such a dismissal shall not be made during trial without the consent of the defendant.

(2) If there is an unreasonable and unnecessary delay in bringing a defendant to trial, the Court may, on motion of the defendant or its own motion, dismiss the complaint.

Rule 38. Service and Filing of Papers.

(1) Written motions other than those which are heard ex parte, written notices and similar papers shall be served on each party in the manner provided for in civil actions.

(2) All papers required to be served shall also be filed with the Court.

Rule 39. Calendars.

(2) The Tribal Court shall schedule criminal trials no less frequently than one day per month.

(3) The Court may for good cause shown by either party direct that a trial be postponed to the next or some succeeding month. However, if the prosecution, for good cause shown, requests and is granted a delay, and if the defendant is incarcerated not having made bail, the defendant shall be released on his own recognizance pending the rescheduled trial.

Rule 40. Exceptions Unnecessary.

Rule 41. Harmless Error and Plain Error.

Rule 42. Regulation of Conduct in the Court Room.

Each judge may regulate the conduct of persons in his court room and may forbid the taking of photographs or other visual or audio recordation of proceedings occurring therein.

Rule 43. Records.

(1) The Chief Judge may, in conjunction with the other Tribal judges, promulgate rules governing criminal procedure not inconsistent with these rules and in supplement thereto, and copies of such rules shall be made available for public inspection and copying.

(2) If no procedure is specifically prescribed by rule, the Court may proceed in any lawful manner not inconsistent with these rules or the principles of justice and fairness underlying these rules.

Any forms adopted for use in the courts are illustrative and not mandatory.

Rule 46. Citation.

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