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to Table of Contents Laws
of the Confederated Salish and Kootenai Tribes, Codified
Revised: April 15, 2003
(1) to provide for the just determination of every criminal proceeding; (2) to protect the rights of individuals; and (3) to secure simplicity in procedure, fairness in administration, and the elimination of unjustifiable expense and delay. 2-2-102. General definitions. Unless otherwise specified in a particular section, the following definitions shall apply to this chapter: (1)
"Arraignment" means the formal act of calling a defendant into open
court in order that the defendant may enter a plea on the charge(s)
against her or him. (2)
"Arrest" means formally taking a person into custody in accordance with
the manner authorized by law. (3) "Bail" means the security given, in the form of cash, stocks, bonds, real property, or any other form of approved collateral, for the primary purpose of insuring the presence of the defendant in a pending criminal proceeding. (4) "Charge" means a written statement presented to the Court accusing a person of commission of an offense, and includes a complaint or information. (5) "Citation" means a written direction that is issued by a law enforcement officer and that requests a person to appear before the court at a stated time and place to answer a charge for the alleged commission of an offense. (6) "Conditional release" means releasing a defendant from lawful custody, pending a criminal proceeding, after placing specific restrictions or regulations on the activities and associations of the defendant. (7) "Contents", when used with respect to oral, wire, radio, television, satellite, or computer communications, means not only the actual words or substances of the communication, but any information concerning the implied or intended meaning of the communication, the existence of the communication, and the identities of the parties to the communication as well. (8) "Contraband" means any property which is unlawful in itself, used for any unlawful purpose, or used in connection with or derived from any unlawful property or transaction. (9) "Conviction" means a judgment or sentence entered upon a plea of guilty or no contest, or upon a verdict or finding of a defendant's guilt rendered by a legally constituted jury or by a court of competent jurisdiction authorized to try the case without a jury. Once a conviction has been expunged, it is no longer considered a conviction under Tribal law. (10) "Coroner" means a law enforcement officer, or other person designated by the Tribal Council, to inquire into the causes and circumstances of any death occurring due to violence or unexplainable causes. (11) "Counsel" means an attorney or a Tribal Advocate. (12) "Defendant" means a person who has been charged by the Tribes of allegedly violating a Tribal law and is appearing before the Tribal Court as a result of the charge or charges. (13) "Elder" or "older person" means a Tribal member or other individual residing on the Reservation who is
(14) "Family member" or "household member" means a spouse, former spouse, person related by blood or marriage, person residing with the offender due to adoption or foster placement, any person currently cohabiting with the offender at any time during the year immediately preceding the commission of any alleged abuse. (15) "Frisk" means an external patting of a person's outer clothing. (16) "Included offense" means an offense that:
(17) "Indian" means a person who is enrolled in a federally recognized Indian tribe or who is recognized as a Canadian Indian. (18) "Judgment" means an adjudication by the Tribal Court that the defendant is guilty or not guilty, and if the adjudication is that the defendant is guilty, the judgment includes the sentence pronounced by the Court. (19) "Law enforcement officer" means any person who by virtue of his or her office or employment by the Tribes or by another government is vested by law with a duty to
(20) "Mental disorder" means any organic, mental, or emotional impairment which has substantial adverse effects on an individual's cognitive or volitional functions. It does not include an abnormality manifested only by repeated criminal or other antisocial behavior. (21) "Notice to appear" means a written document, issued by a clerk of the Tribal Court or a law enforcement officer, requesting the named person to appear before a judge at the stated time and date in Tribal Court to answer a charge for the alleged commission of an offense. (22) "Offender" means a person who has been convicted of an offense enumerated in Chapter 1 of this Title. (23) "Offense" means a violation of a penal statute contained in the Code of Criminal Offenses, Chapter 1, Title II, of the CSKT Laws, Codified. (24) "Parole" means the release from jail of a prisoner by the Court prior to the expiration of the prisoner's term, subject to any conditions imposed by the Court and the supervision of the Tribal Probation Officer. (25) "Personal recognizance" means the release from lawful custody of a defendant upon his or her promise to appear in court at all appropriate times. (26) "Probation" means the release by the Tribal Court without imprisonment, of an offender a defendant found guilty of a crime upon verdict or plea, subject to conditions imposed by the Tribal Court, and subject to supervision by the Tribal Probation Officer or his or her designee upon direction of the Court. (27) "Sentence" means the punishment imposed on an offender by the court and may include incarceration, labor on Tribally-owned property while incarcerated, restitution, or any combination thereof, together with participation in any rehabilitative programs ordered by the court. (28) "Statement" means
(29) "Subpoena" means a court order commanding a person to:
(30) "Summons" means a written order issued by the court that commands a person to appear before the court at a stated time and place to answer a charge for the offense set forth in the order. (31) "Temporary roadblock" means any structure, device, or other method used by law enforcement officers to control the flow of traffic through a point on a highway or road whereby all vehicles may be slowed or stopped. (32) "Witness" means a person whose testimony is desired in a criminal action, prosecution or proceeding. 2-2-103. Criminal jurisdiction. (1) An Indian defendant is subject to prosecution in Tribal Court for any offense enumerated in Chapter 1 of this Title or another Tribal statute committed totally or partially within the exterior boundaries of the Flathead Reservation. (2) An offense is committed partially within the Flathead Reservation if either the conduct which is an element of the offense or the result which is an element occurs within the exterior boundaries of the Flathead Reservation. (3) An offense based on an omission to perform a duty imposed by Tribal law is committed within the exterior boundaries of the Flathead Reservation, regardless of the location of the defendant at the time of the omission.
(2) No inference may be drawn from a defendant's exercise of the right not to testify. 2-2-105. Subsequent prosecutions. (1) A subsequent prosecution will not constitute double jeopardy when the previous prosecution was properly terminated under any of the following circumstances:
(2) The following actions will not constitute an acquittal of the same offense if the complaint was:
Investigative Procedures
(2) No person subpoenaed under this provision is required to give testimony or produce any evidence which may incriminate her or him, unless granted immunity. (3) An investigative subpoena may only be issued by a judge when supported by an affidavit of the Prosecutor sufficient to show that the administration of justice requires the testimony or information being sought. 2-2-202. Relief from improper subpoena. A person aggrieved by a subpoena issued pursuant to this part may, within a reasonable time, file a motion to dismiss the subpoena and, in the case of a subpoena duces tecum, to limit its scope. The motion must be granted if the subpoena was improperly issued or, in the case of a subpoena duces tecum, if it is overly broad in its scope.
(2) Proceedings conducted under this part are secret except to the extent that they supply probable cause for arresting or charging a defendant in a subsequent criminal action or are admissible in a later criminal trial. A person who divulges the contents of the Prosecutor's affidavit or the proceedings without legal privilege to do so is punishable for contempt of court. (3) All penalties for perjury or preparing, submitting, or offering false evidence apply to proceedings conducted under this part. 2-2-204. Self-incrimination -- immunity. (1) No person subpoenaed to give testimony pursuant to this part may be required to make a statement or to produce evidence that may be personally incriminating. (2) The prosecutor may, with the approval of the judge who authorized the issuance of the subpoena, grant a person subpoenaed immunity from the use of any compelled testimony or evidence or any information directly or indirectly derived from the testimony or evidence against that person in a criminal prosecution. (3) Nothing in this part prohibits a prosecutor from granting immunity from prosecution for or on account of any transaction, matter, or thing concerning which a witness is compelled to testify if the prosecutor determines, in the prosecutor's sole discretion, that the best interest of justice would be served by granting immunity. (4) After being granted immunity, no person may be excused from testifying on the grounds that the testimony may be personally incriminating. Immunity may not extend to prosecution or punishment for false statements given pursuant to the subpoena. (5) Nothing in this part requires a witness to divulge the contents of a privileged communication unless the privilege is waived as provided by law. 2-2-205. Authorization for search and seizure. A search of a person, object, or place may be made and evidence, contraband, and persons may be seized when a search is made: (1) by the authority of a search warrant; or (2) in accordance with federally judicially recognized exceptions to the warrant requirement. 2-2-206. Scope of search after arrest. When a lawful arrest is effected, a law enforcement officer may make a reasonable search of the person arrested and the area within such person's immediate presence, without a search warrant, for the purpose of: (1) protecting the officer from attack; (2) discovering and seizing the fruits of the crime; (3) discovering and seizing instruments, articles, or other property which may have been used in the commission of the offense, or which may constitute evidence of the offense, in order to prevent its destruction; or (4) preventing the person from escaping. 2-2-207. Execution of a search warrant. (1) A "search warrant" is a court order:
(2) Every judge has the authority to issue warrants for the search of persons, premises, and property and the seizure of goods, instruments, articles, or items. (3) Search warrants shall only be executed by law enforcement officers between the hours of 6:00 a.m. and 10:00 p.m., unless the issuing judge otherwise authorizes the warrant to be served anytime day or night. (4) Before entering the premises named in a search warrant, the law enforcement officer shall give appropriate notice of her or his identity, authority and purpose to the person to be searched, or to the person in apparent control of the premises to be searched. (5) Before undertaking any search or seizure pursuant to the warrant, the executing law enforcement officer shall read and give a copy of the original or duplicate original warrant to the person to be searched, or to the person in apparent control of the premises to be searched. If the premises are unoccupied or there is no one in apparent control, the law enforcement officer shall leave a copy of the warrant suitably affixed to the premises. (6) If the warrant is executed, a duplicate copy and a receipt for all articles taken shall be left with any person at the place from which any items were seized. The inventory of the items shall be made in the presence of the applicant for the warrant and the person from whose possession or premises the property was taken, if present, or in the presence of at least one credible person other than the applicant for the warrant. (7) Failure to give or leave a receipt of all items seized shall not render the seized property inadmissible at any subsequent trial. (8) Only reasonable and necessary force may be used to execute a search warrant. (9) The executing officer shall return the warrant to the Tribal Court within the time limit shown on the face of the warrant. A warrant is only effective within 10 days of the date of issuance. Warrants not executed within such time limits are void. (10) A warrant issued under this section shall not be held invalid due to minor irregularities in the warrant which do not substantially affect any rights of a person named in the warrant. 2-2-208. Grounds for a search warrant. (1) No search warrant shall issue except upon a written or oral sworn statement of a law enforcement officer or Tribal prosecutor, based upon reliable information and stating facts sufficient to support probable cause to believe that an offense has been committed, particularly describing the place, object or persons to be searched and who or what is to be seized, which sufficiently shows probable cause exists to indicate a search will discover:
(2) When a warrant is requested based on oral testimony, communicated by telephone or otherwise, a judge shall:
(3) A judge may require the applicant to furnish further testimony or documentary evidence in support of the application for the warrant. 2-2-209. Scope of search. (1) The scope of any search shall only include those areas specifically authorized by the warrant and is limited to the least restrictive means reasonably necessary to discover the persons or property specified in the warrant. (2) Upon discovery of the person or property named in the warrant, the law enforcement officer shall take possession or custody of the person or property and search no further under the authority of the warrant. (3) If, in the course of an authorized search, the law enforcement officer discovers property not specified in the warrant and the officer has probable cause to believe the discovered property constitutes evidence of the commission of a criminal offense, the officer may also take possession of that property. 2-2-210. What may be seized with search warrant. A warrant may be issued under this section to search for and seize any: (1) evidence; (2) contraband; or (3) person for whose arrest there is probable cause, for whom there has been a warrant of arrest issued, or who is unlawfully restrained. 2-2-211. Seizures related to controlled substances. (1) As used in this statute "controlled substance" means any substance designated as a dangerous drug pursuant to Section 2-1-1401. (2) The following are subject to forfeiture:
(3) All property subject to forfeiture under subsection (2) of this section may be seized by an officer under a search warrant. Seizure without a warrant may be made if:
(4) Controlled substances that are possessed, transferred, offered for transfer, manufactured, prepared, cultivated, compounded, or processed in violation of 2-1-1401 and that are seized under the provisions of this part are contraband and shall be summarily forfeited to the Tribes. Controlled substances which are seized or come into the possession of the Tribes and the owners of which are unknown are contraband and shall be summarily forfeited to the Tribes. 2-2-212. Procedures for seizures related to controlled substances. (1) Property seized pursuant to Section 2-2-211 (2)(a), (c), (d), or (e) is subject to summary forfeiture. (2) Property seized pursuant to Section 2-2-211 (2)(b) is subject to the following procedure. An officer who seizes such property shall, within 45 days of the seizure, file a petition to institute forfeiture proceedings with the Clerk of the Court. The Clerk shall issue a summons at the request of the petitioner, who shall cause the same to be served upon all owners or claimants of the property as provided by the civil procedures of this Code. (3) Within 14 days after the service of the petition and summons, the owner or claimant of the seized property shall file a verified answer to the allegations concerning the use of the property described in the petition to institute forfeiture proceedings. No extension of the time for filing the answer may be granted and failure to answer within 14 days bars the owner or claimant from presenting evidence at any subsequent evidentiary hearing unless extraordinary circumstances exist.
(4) If the court finds that the property was not used for the purpose charged or that the property was used without the knowledge or consent of the owner, it shall order the property released to the owner of record as of the date of the seizure. (5) If the court finds that the property was used for the purpose charged and that the property was used with the knowledge or consent of the owner, the property shall be disposed of as follows:
(6) In making a disposition of property under this part, the court may take any action to protect the rights of innocent persons. (7) Whenever property is seized, forfeited and sold under the provisions of this part, the net proceeds of the sale must be distributed as follows:
2-2-213. Disposition of seized property not associated with a drug-related crime. (1) A hearing may be requested before the Tribal Court within 10 working days of any seizure to determine the disposition of all property seized by law enforcement officers. (2) Upon satisfactory proof of ownership, the property shall be delivered to the owner, unless such property is contraband or is to be used as evidence in a pending case. (3) Non-contraband property taken as evidence shall be returned to the owner after final judgment has been rendered. (4) Non-contraband property may be returned to the owner prior to final judgment upon application to and at the discretion of the court. (5) Property confiscated as contraband or taken as evidence and of unknown ownership and unclaimed for six months shall become the property of the Tribes and may be:
2-2-214. Investigative stop. In order to obtain or verify an account of the person's presence or conduct or to determine whether to arrest the person, a law enforcement officer may stop any person or vehicle that is observed in circumstances that create a particularized suspicion that the person or occupant of the vehicle has committed, is committing, or is about to commit an offense.
(1) may frisk the person and take other reasonable steps necessary for protection if the officer has reasonable cause to suspect that the person is armed and presently dangerous to the officer or another person present; (2) may take possession of any object that is discovered during the course of the frisk if the officer has probable cause to believe the object is a deadly weapon; (3) may demand the name and present address of the person; and (4) shall inform the person, as promptly as possible under the circumstances and in any case before questioning the person, that the officer is a law enforcement officer, that the stop is not an arrest but rather a temporary detention for an investigation, and that upon completion of the investigation, the person will be released if not arrested. 2-2-216. Roadblocks. (1) Law enforcement officers may use a temporary roadblock in order to apprehend a person suspected of committing a criminal offense. (2) Unless exigent circumstances exist justifying a departure from the requirements given below, the minimum requirements to be met by law enforcement officers when establishing roadblocks include:
2-2-217. Duration of stop. A stop authorized under Section 2-2-214 and Section 2-2-216 may not last longer than is necessary to effectuate the purpose of the stop.
Part 3 Commencing Prosecution 2-2-301. Citation. Prosecution for all Class A offenses shall be initiated by citation issued by a law enforcement officer upon Probable cause where the officer has attested to the truth of the allegations contained in the citation under oath. 2-2-302. Complaint. (1) All criminal prosecutions for Class B, Class C, Class D, and Class E offenses shall be initiated by complaint. (2) The complaint is a written statement of the essential facts constituting the offense charged. (3) Application for leave to file a complaint shall be made by a Tribal prosecutor to a judge. An application shall either be by affidavit supported by such evidence as the judge may require or be based on the sworn oral statement of a Tribal prosecutor made on the record. When leave to file a complaint has been granted, a warrant or summons may issue for the defendant's arrest or appearance. The Tribal prosecutor shall file the complaint within 30 days after leave of court is granted. (4) The complaint shall contain:
(5) No minor omission from or error in the form of the complaint shall be grounds for dismissal unless the defendant is shown to be significantly prejudiced by the omission or error. (6) A specific Class of an offense need not be included in the complaint. If a factual allegation is contained in the complaint which will supply the information needed to determine the degree of the offense, the Judge may use that information to determine bail. If no factual allegation is made, the offense shall be considered the least degree possible under the offense charged, for the purposes of setting bail. (7) The judge issuing the complaint shall examine the complainant under oath to:
2-2-303. Amending the complaint. (1) A complaint may be amended in matters of substance at any time prior to arraignment without leave of the Tribal Court. (2) A complaint may be amended in matters of substance at any time not less than 5 days before trial with leave of the Tribal Court. (3) When the prosecution seeks leave to amend a complaint as to a matter of substance, the prosecutor shall file:
(4) If the motion is timely filed and the amended complaint is supported by probable cause, the court shall grant leave to amend. (5) The defendant shall be arraigned on the amended complaint without unreasonable delay. (6) The defendant shall be given a reasonable period of time to prepare for trial on the amended complaint. (7) The court may permit a complaint to be amended as to form at any time before a verdict or a finding if no additional or different offense is charged and if the substantial rights of the defendant are not prejudiced. (8) No charge may be dismissed because of a formal defect which does not tend to prejudice any substantial right of the defendant. 2-2-304. Joinder and severance of offenses and defendants. (1) Two or more offenses or different statements of the same offense may be charged in the same complaint in separate counts, or alternatively, if the offenses charged are of the same or similar character and are based on the same transactions connected together or constituting parts of a common scheme or plan. Allegations made in one count may be incorporated by reference in another count. (2) The Tribal Court may order that different offenses or counts set forth in the complaint be tried separately or consolidated. (3) The prosecution is not required to elect between the different offenses or counts set forth in the complaint and the defendant may be convicted of any number of the offenses charged, except as provided in section 2-2-306. Each offense of which the defendant is convicted must be stated in the verdict or the finding of the Tribal Court. 2-2-305. Discharge of codefendant. (1) When two or more persons are included in the same charge, the Tribal Court may, at any time prior to the defendants presenting their cases and upon application of the prosecutor, direct any defendant be discharged so that the defendant may be a witness for the prosecution. (2) When two or more persons are included in the same complaint and the Tribal Court determines that there is insufficient evidence to prosecute one of the named defendants, the Tribal Court must discharge that defendant before the evidence is closed so that the discharged defendant may be a witness for the codefendant. 2-2-306. Multiple charges from the same transaction. (1) When the same transaction may establish the commission of more than one offense, a person charged with conduct may be prosecuted for each offense. (2) A person may not, however, be convicted of more than one offense if:
Arrest and Related Procedures
(2) All necessary and reasonable force may be used in making an arrest, but the person arrested shall not be subject to any greater restraint than is necessary to hold or detain the person. (3) All necessary and reasonable force may be used to effect an entry into any building or property or part thereof to make an authorized arrest. 2-2-402. Time of making arrest. An arrest may be made any day of the week and at any time of the day or night. A person, however, cannot be arrested in her or his home or private dwelling at night for a Class A, Class B, or Class C offense without an arrest warrant specifically permitting arrest at night except for an offense involving damage to a person and the provisions of 2-2-403 are followed.
(2) When an arrest is made without an arrest warrant, the arresting officer must inform the person to be arrested, as soon as practicable, of his or her authority to make the arrest and the reasons for making the arrest. (3) A law enforcement officer may arrest a person, including at her or his place of residence, without an arrest warrant if the officer has probable cause to believe the person is committing or has committed abuse against an elder, family member, or household member, regardless of whether the offense took place in the responding law enforcement officer's presence. (4) Arrest is the preferred response in situations:
(5) If an arrest is made without a warrant, the Court shall make a determination of the existence of probable cause for the arrest within 48 hours of the arrest. (6) For any class of offense, in lieu of making a custodial arrest, a law enforcement officer may issue a citation requiring the defendant to appear in Tribal Court at a designated time and on a designated date. (7) An arrest made outside the boundaries of the Flathead Reservation shall be valid if made pursuant to the laws of the jurisdiction where the arrest occurred. 2-2-404. Arrest warrants. (1) An arrest warrant shall be issued by a judge, based on a sworn complaint or affidavit showing there is probable cause to believe an offense has been committed and the named person has committed the offense. The warrant shall:
(2) A law enforcement officer shall, as soon as practicable, inform the person named in the arrest warrant of:
(3) A copy of the arrest warrant must be shown to the person arrested, as soon as practicable. (4) An arrest made pursuant to a warrant shall not be dismissed due to minor irregularities in the warrant which do not substantially affect any rights of the arrested person. 2-2-405. Notice of rights prior to interrogation. (1) Prior to questioning any person in custody, a law enforcement officer must inform the person in clear and unequivocal terms of the following rights:
(2) Any statement obtained in violation of these rights may not be admitted into evidence. (3) The fact that a person chooses to remain silent cannot be used against her or him in any subsequent criminal proceedings. 2-2-406. Summons. (1) The Tribal Court may or, upon request of a prosecutor, shall issue a summons instead of an arrest warrant. (2) The summons may be served personally or by first-class mail. (3) A summons shall:
2-2-407. Written report when no arrest made in abuse situation. When a law enforcement officer is called to the scene of a reported incident of elder or domestic abuse but does not make an arrest, the officer shall file a written report with the commanding officer stating the reasons for deciding not to make an arrest.
(2) The notice given by the law enforcement officer must include furnishing the injured party with a copy of the following statement: IF YOU ARE THE VICTIM OF DOMESTIC ABUSE, the Tribal Prosecutor's Office can file criminal charges against your abuser. You also have the right to go to court and file a petition requesting:
2-2-409. Extradition. (1) If a Tribal law enforcement officer arrests an individual based on a warrant issued by the State of Montana, or a reasonable belief that a warrant has been issued by the State of Montana, the Tribes may hold such individual for up to forty-eight hours, after any Tribal sentence has been served, for transport by State officials. If State officials do not retrieve the defendant within that time, he or she shall be released. The defendant shall be entitled to bail at the amount set in the State warrant. (2) If a Tribal law enforcement officer arrests an individual pursuant to Section 2-2-403 above based on a warrant from a jurisdiction other than the State of Montana, or based on a reasonable belief that a warrant has been issued by a jurisdiction other than the State of Montana, he shall be entitled to a hearing before the Tribal Court on the following issues:
After being fully informed of his or her rights, the defendant may, in writing, waive the right to a hearing. If not waived, the hearing shall be held within two days of the arrest, and the defendant shall have the right to be represented by the Tribal Defenders Office. Prior to the hearing the defendant shall be entitled to bail at the sum set in the warrant. (3) If at the hearing the Court does not find these factors to be established by the Tribal Prosecutor by clear and convincing proof, it shall order the defendant immediately released. If at the hearing the Court finds these factors to be established by the Tribal Prosecutor by clear and convincing proof, it shall order the defendant held for a reasonable time not to exceed ten days, after any Tribal sentence has been served, for the other jurisdiction to retrieve the defendant. After the hearing the defendant may be admitted to bail in an amount set by the Tribal Court, on the condition that he or she surrender himself or herself at a specified time, and on such additional restrictions as the Court deems appropriate. If such other jurisdiction does not retrieve the defendant within that time, the defendant shall be released. (4) Nothing in this section shall be considered to limit or restrict an individual's right to seek a writ of habeas corpus under Section 1-2-722.
Initial Appearance, Presence of Defendant, and Right to Counsel
(2) A person not arrested shall appear for an initial appearance at the time and place designated in the citation or summons. (Rev. 1-27-00.) 2-2-502. Duty of court at initial appearance. (1) The judge shall inform the defendant of:
(2) The judge shall admit the defendant to bail as provided by Section 2-2-602 of this Code. 2-2-503. Presence of defendant. Unless otherwise set forth in this chapter, a defendant shall be present at all stages of the proceedings. The Court in its discretion may allow the defendant to appear through counsel.
(2) If the defendant desires counsel and is indigent as defined in Section 1-2-402, and if the court desires to retain imprisonment as a sentencing option or if the interests of justice so require, the court shall assign the Tribal Defender's Office to provide counsel to the defendant. (3) If the defendant wishes to obtain private counsel, the court shall grant a reasonable time prior to arraignment for defendant's attorney to enter an appearance in the cause. (4) A defendant may waive the right to counsel when the court ascertains that the waiver is made knowingly, voluntarily, and intelligently in writing.
Bail 2-2-601. Release prior to criminal proceedings. A person charged with any offense is bailable before conviction and shall be released from custody by the court upon reasonable conditions that ensure the appearance of the defendant and protect the safety of the community or of any person. 2-2-602. Release or detention. (1) The release or detention of the defendant must be determined immediately upon the defendant's initial appearance. (2) The criteria for determining the conditions of release include, but are not limited to the following:
(3) The Court may in its discretion grant temporary release from custody under any conditions the Court deems appropriate. 2-2-603. Release on own recognizance and reasonable bail. (1) Any person in custody, if otherwise eligible for bail, may be released on his personal recognizance subject to such conditions as the court may reasonably prescribe to assure his appearance when required. (2) In all cases, the amount set for bail must be reasonable. (3) Reasonable bail reflects an amount which is:
2-2-604. Conditions upon defendant's release. (1)The court may impose any condition that will reasonably ensure the appearance of the defendant as required or that will ensure the safety of any person or the community, including, but not limited to the following conditions:
(2) The court shall subject the defendant to the least restrictive condition or combination of conditions that will ensure the defendant's appearance and provide for protection of any person or the community. At any time, the court may, upon a reasonable basis, amend the order to impose additional or different conditions of release upon its own motion or upon the motion of either party. 2-2-605. Bail schedule. (1) The Chief Judge of the Tribal Court shall establish and post a schedule of bail for offenses to be used by law enforcement officers. (2) A law enforcement officer may accept bail on behalf of the Tribal Court whenever the amount of bail is specified in the warrant of arrest or in accordance with the posted bail schedule. (3) When a law enforcement officer accepts bail, based on an arrest warrant or current bail schedule, the officer shall give a signed receipt to the offender setting forth the bail received and the name of the person posting the bail. At the earliest time practicable, the law enforcement officer shall deliver the bail and duplicate copy of the bail receipt to the Tribal Court; obtaining a receipt for the bail delivered from a Clerk of Court. (4) The Chief Judge of the Tribal Court shall replace any existing bail schedule with a revised bail schedule by January 31 of each year. (5) Bail may be specifically set by a judge for any offense not listed on the posted bail schedule. 2-2-606. Changing bail or conditions of release. (1) Upon application by the Tribes or the defendant, the Tribal Court may increase or reduce the amount of bail, alter the conditions in the bail or release order, or revoke bail. (2) Reasonable notice of such application must be given to the opposing parties or their attorneys by the applicant. 2-2-607. Forms of bail. (1) Bail may be furnished in the following ways, as the court may require:
(2) The amount of the bond must ensure the appearance of the defendant at all times required through all stages of the proceeding and remain in effect until final sentence is pronounced in open court. (3) Nothing in this part prohibits a surety from surrendering the defendant in a case in which the surety feels insecure in accepting liability for the defendant. 2-2-608. Property and surety bonds. (1) If property posted as a condition of release is personal property, the defendant or sureties shall file a sworn schedule that must contain a list of the personal property, including a description of each item, its location and market value, and the total market value of all items listed. (2) If the property is real estate the defendant or sureties shall file a sworn schedule that must contain a legal description of the property, a description of any encumbrance on the property, including the amount of each encumbrance and its holder, and the market value of the unencumbered equity owned by the defendant or sureties; (3) If the property is a written undertaking with sureties, each surety must be a Reservation resident and worth the amount specified in the undertaking, exclusive of property exempt from execution; but the court may allow more than two sureties to justify severally and in amounts less than that expressed in the undertaking if the whole justification is equivalent to the amount required. (4) If the property posted is a commercial bond, it may be executed by any domestic or foreign surety company that is qualified to transact surety business in Montana. The undertaking must state the following:
(5) The court may examine the sufficiency of an undertaking and take any action it considers proper to ensure that a sufficient undertaking is posted. 2-2-609. Release of bail. When all conditions of release have been satisfactorily performed and the defendant has been discharged from any obligations imposed by the Tribal Court, the court shall return any security posted by the defendant to satisfy bail requirements.
(2) This section provides the exclusive remedy for a violation of a release order. A defendant may not be charged with contempt or found in contempt for violation of a release order. (3) Neither a cash bond nor a commercial bond may be forfeit for violation of release conditions, except for failing to appear for court proceedings without a lawful excuse. (4) Notice of an order of forfeiture must be mailed to the defendant and the defendant's sureties at their last-known address(es) within 10 working days of the date of the order or the bond becomes void. (Rev. 1-27-00.) 2-2-611. Forfeiture order. (1) If within 90 days of the forfeiture order, the defendant, or the defendant's surety, appears and presents evidence justifying the defendant's failure to appear or otherwise meet the conditions found in the release order, the Tribal Court may direct the forfeiture of the bail to be discharged upon such terms as are just. (2) If the forfeiture order is not discharged by the Tribal Court, the court shall proceed with the forfeiture of bail as follows:
(3) If a surety bond has been posted as bail, execution may be issued against the sureties or the surety company in the same manner as executions in civil actions. (Rev. 1-27-00.) 2-2-612. Surrender of defendant. (1) At any time before the forfeiture of bail:
(2)
The law enforcement officer will detain the defendant in the officer's
custody and shall file a certificate, acknowledging the surrender, in
court. The court may then order the bail exonerated.
Part 7 Arraignment of the Defendant 2-2-701. Joint defendants. Defendants who are jointly charged may be arraigned separately or together in the discretion of the court. 2-2-702. Procedure on arraignment. (1) A defendant shall be arraigned in open Tribal Court whenever a complaint has been filed by a Tribal prosecutor. Arraignment consists of reading the charge, unless the defendant waived the reading, and supplying a copy of it to the defendant and calling on the defendant to plead to the charge. (2) If a defendant waives his or her right to counsel in writing, the court may arraign the defendant at the initial appearance. (3) Prior to accepting any plea at the time of arraignment, the presiding judge must:
2-2-703. Plea alternatives. (1) A defendant shall enter a plea of guilty, not guilty, or, if the judge agrees, no contest, to all charges each charge contained in the complaint. A plea of no contest may be accepted by a judge only after due consideration of the views of the parties and interest of the Tribes in the effective administration of justice. (2) The court may not accept a plea of guilty or no contest without first determining:
(3) A defendant pleading not guilty must inform the judge at the time of arraignment if a jury trial is requested. (4) If a defendant voluntarily enters a plea of guilty the judge may impose a sentence at that time or, on the court's own motion or the request of either party, schedule a sentencing hearing in order to allow sufficient time for the involved parties to obtain any information deemed necessary for the imposition of a just sentence. (5) Prior to the imposition of any sentence, the judge shall allow the defendant an opportunity to inform the court of any extenuating or mitigating circumstances which should be considered by the court in imposing penalties. (6) With the approval of the court and the consent of the prosecutor, a defendant may enter a plea of guilty or no contest, reserving the right, on appeal from the judgment, to review the adverse determination of any specified pretrial motion. If the defendant prevails on appeal, the defendant must be allowed to withdraw the plea. (Rev. 1-27-00.) 2-2-704. Record of arraignment. The Clerk of Court shall prepare and keep a record of all arraignment proceedings.
(2) A plea bargain agreement may be entered into anytime prior to a verdict or finding of guilt by judge or jury. (3) Final plea bargain offers shall be given to the defendant no later than 8 working days prior to trial. Plea bargains entered into up to 5 days prior to trial will be reviewed by the court and approved if not unconscionable. After that time, plea bargains will receive heightened scrutiny with no assurance being given of the acceptability of such plea bargains. (4) If a plea agreement has been reached by the parties, the court shall, on the record, require a disclosure of the agreement in open court at the time the plea is offered. 2-2-706. Telephonic change of plea. In exceptional circumstances and at its discretion, the court may accept a defendant's change of plea through a recorded telephonic proceeding.
Pretrial Motions and Discovery
(2) Failure of a party to raise defenses or objections or to make requests that must be made prior to trial, except lack of jurisdiction or the failure of a complaint to state an offense which must be noticed by the court at any time during the pendency of a proceeding, constitutes a waiver of the defense, objection, or request. The court, for good cause shown, may grant relief from any waiver provided in this section. (3) Motions in Limine should be made at least 5 days before trial, unless good cause is shown. 2-2-802. Suppression of evidence. (1) A defendant aggrieved by an unlawful search and seizure may move to suppress as evidence anything obtained by the unlawful search and seizure. The motion must be filed at least 10 days before trial, unless good cause is shown for waiving this time restriction. (2) The motion must specify the evidence sought to be suppressed and the grounds upon which the motion is based. (3) When the motion to suppress challenges the admissibility of evidence obtained without a warrant, the prosecution has the burden of proving, by a preponderance of the evidence, that the search and seizure were valid. (4) If the motion is granted, the evidence is not admissible at trial. 2-2-803. Motion to suppress confession or admission. (1) A defendant may move to suppress as evidence any confession or admission given by her or him on the ground that it was not voluntary or that was otherwise obtained in violation of his or her rights. (2) The motion must be filed at least 10 days before trial, unless good cause is shown for waiving this time restriction. (3) If the allegations of the motion state facts which, if true, show that the confession or admission was not voluntarily made or was otherwise obtained in violation of the defendant's rights, the Tribal Court shall conduct a hearing on the merits of the motion. The prosecution must prove by a preponderance of the evidence that the confession or admission was not obtained in violation of the defendant's rights. (4) The issue of admissibility of the confession or admission may not be submitted to the jury. If the confession or admission is determined to be admissible, the circumstances surrounding the making of the confession or admission may be submitted to the jury as bearing upon the credibility or the weight to be given to the confession or admission. (5) If the motion to suppress is granted, the confession or admission may not be admitted into evidence by the prosecution at the time of trial. (Rev. 1-27-00.) 2-2-804. Disclosure by prosecution. (1) At the time of the initial appearance, the prosecutor shall disclose to the defendant the name of the person, if any, against whom the offense was committed if not disclosed in the complaint. (2) At the arraignment or as soon thereafter as practicable the defendant may request notice of all evidence the prosecutor intends to use in the prosecution case-in-chief at trial. (3) Upon defendant's request, any of the following information or evidence which is within the possession, custody, or control of the Tribal Prosecutor is subject to disclosure and production and may be copied or photographed, as appropriate for the item, by the defendant:
(4) At the same time, the prosecutor shall inform the defendant of, and make available to the defendant for examination and reproduction, any written or recorded material or information within the prosecutor's control regarding:
(5) Attorney work product of the Tribal Prosecutor's office is not subject to disclosure and production. (6) The Prosecution shall provide written notice of any evidence of other crimes, wrongs, or acts, that it intends to offer under Rule 404(b) of the Federal Rules of Evidence, at least two weeks prior to the close of discovery. The notice shall describe the evidence in sufficient detail to inform the Defendant of the date, time, place, and witnesses to the alleged incidents, and shall also state the purpose for which such evidence shall be offered. (7) The obligations imposed by this section are continuing. 2-2-805. Disclosure by defendant. (1) At any time after the filing of a complaint, the defendant,in connection with the particular offense charged, shall upon written request of the prosecutor and approval of the court:
(2) Except as provided in Section (4), not later than the close of discovery upon request of the prosecution or at another time as the court for good cause may permit, the defendant or defendant's counsel shall make available to the prosecutor for testing, examination, or reproduction:
(3)
(4) Attorney work product of defense counsel is not subject to disclosure or production. (5) The obligations imposed by this section are continuing. 2-2-806. Severance. (1) A defendant may move for severance of defendants or charges. Such motion shall be filed at least 10 days prior to trial unless otherwise directed by the Tribal Court. (2) If it appears that the defendant is prejudiced by a joinder of related prosecutions or defendants in a single charge, or by a joinder of separate charges or defendants for trial, the Tribal Court may order separate trials, grant a severance of defendants, or provide any other relief as justice may require. 2-2-807. Notice of alibi. (1) At the time of the pretrial conference or order, the prosecutor shall provide a written statement of the time, date, and place at which the alleged offense was committed. (2) If a defendant intends to rely upon a defense of alibi, the defendant will so notify the prosecutor, in writing, within 10 days of receiving the information required by subsection (1). (3) Defendant's notice of alibi defense shall state the specific place or places where the defendant claims to have been at the time of the alleged offense and the names and addresses of the witnesses the defendant intends to call to establish such alibi. 2-2-808. Motion for continuance. The defendant or the Tribes may file a written motion for continuance, or the court may continue the proceedings on its own motion. If a party so moves less than 10 days before a scheduled hearing or trial, the Tribal Court may require that the motion be supported by an affidavit, whether or not the motion is opposed by the adverse party. This section, however, shall be applied in a manner which insures criminal cases are tried with due diligence consistent with the rights of the defendant to a speedy trial.
(2) In the interest of justice, the Tribal Court may order a pretrial conference based on its own motion. (3) At the conclusion of any pretrial conference, the presiding judge shall prepare and file a memorandum of the matters agreed upon. No admissions made by the defendant or defendant's counsel at the conference shall be used against the defendant unless the admissions are reduced to writing and signed by the defendant and the defendant's counsel. (4) In the interest of judicial economy, the Court may Order the parties to prepare a proposed Pretrial Order, without a pretrial conference, for the Court's signature. 2-2-810. Pretrial diversion. (1) (a) At any time, the prosecutor and a defendant who has counsel or who has voluntarily waived counsel may agree to the deferral of a prosecution for a specified period of time based on one or more of the following conditions:
(2) The witness whose deposition is to be taken may be required by subpoena to attend at any place designated by the court, taking into account the convenience of the parties and of the witness. (3) If it appears upon the affidavit of counsel for a party that good cause exists to believe that a witness will not respond to a subpoena and the administration of justice requires, a judge may issue an arrest warrant commanding the arrest of a material witness. The arrest warrant must further order a deposition to be taken without unnecessary delay. A person may not be imprisoned for the purpose of securing testimony in any criminal proceeding longer than is necessary to take the person's deposition. 2-2-812. Procedure for taking depositions. (1) The party at whose instance a deposition is to be taken shall give to every other party reasonable written notice of the time and place for taking the deposition. The notice must state the name and address of each person to be examined. On motion of the party upon whom the notice is served, the court for cause shown may extend or shorten the time or change the place for taking the deposition. (2) A deposition must be taken in the manner provided in civil actions. However, a deposition may not be taken of a party defendant without the defendant's consent, and the scope and manner of examination and cross-examination must be restricted as would be allowed in the trial itself. (3) The deposition must be filed with the court making the order and held until the trial. Either party shall make available to the other party or the other party's counsel for examination and use at the taking of the deposition any relevant, nonprivileged statement of the witness being deposed that is in the possession of either party. (4) Objections to deposition testimony or evidence may be reserved for subsequent determination by the court. (5) Unless a defendant in custody has waived, in writing, the right to be present at the taking of a deposition, the officer having custody of the defendant must be notified of the time and place set for the deposition. The officer having custody shall produce the defendant and keep the defendant in the presence of a witness during the deposition. (6) A defendant not in custody who fails to appear, without good cause, at the taking of a deposition after being notified of the time and place set for the deposition will be considered to have waived the right to be present. The waiver includes a waiver of any objection to the taking and use of the deposition based upon that right. (7) Whenever a deposition is taken at the instance of the prosecution or whenever a deposition is taken at the instance of a defendant who is unable to bear the expense of taking a deposition, the court shall direct that the cost of the transcript of the deposition be paid by the Tribes. 2-2-813. Use of depositions at trial. Any deposition may be used by any party for any purpose allowed by the Federal Rules of Evidence.
Part
9
2-2-902. Evidence of mental disorder admissible as an affirmative defense. Evidence that the defendant suffered from a mental disorder is admissible to prove that the defendant could not appreciate the criminality of his conduct. This is an affirmative defense which the defendant has the burden of proving by a preponderance of the evidence.
2-2-904. Examination of defendant. (1) If the defendant or the defendant's counsel files a written motion requesting an examination or if the issue of the defendant's fitness to proceed is raised by the Court, prosecution, or defense counsel, the Court shall appoint at least one qualified psychiatrist or licensed clinical psychologist to examine and report upon the defendant's mental condition. (2) 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 not exceeding 60 days or a longer period as the court determines to be necessary for the purpose and may direct that a qualified psychiatrist or licensed clinical psychologist retained by the defendant be permitted to witness and participate in the examination. (3) In the examination, any method may be employed that is accepted by the medical or psychological profession for the examination of those alleged to be suffering from a mental disorder. The cost of the examination must be paid by the Tribes. (Rev. 1-27-00.) 2-2-905. Prosecution's right to examination. (1) When the defense discloses the report of the examination to the prosecution or files a notice of the intention to rely on a defense of mental disorder, the prosecution is entitled to have the defendant examined by a qualified psychiatrist or licensed clinical psychologist. (2) The report must be disclosed to the defense within 10 days of its receipt by the prosecution. (Rev. 1-27-00.) 2-2-906. Access to defendant for examination. If either the defendant or the prosecution wishes the defendant to be examined by a qualified psychiatrist or licensed clinical psychologist selected by the one proposing the examination in order to determine the defendant's fitness to proceed or whether the defendant was able to appreciate the criminality of his conduct, the examiner shall be permitted to have reasonable access to the defendant for the purpose of the examination.
(2) If the examination cannot be conducted by reason of the unwillingness of the defendant to participate in the examination, the report must state that fact and must include, if possible, an opinion as to whether the unwillingness of the defendant was the result of a mental disorder. (Rev. 1-27-00.) 2-2-908. Psychiatric or psychological testimony upon trial. (1) Upon trial, any psychiatrist or licensed clinical psychologist who reported under this part may be called as a witness by the prosecutor or by the defense. Both the prosecution and the defense may summon any other qualified psychiatrist or licensed clinical psychologist to testify, but no one who has not examined the defendant is competent to testify to an expert opinion with respect to the mental condition of the defendant, as distinguished from the validity of the procedure followed by or the general scientific propositions stated by another witness. (2) When a psychiatrist or licensed clinical psychologist who has examined the defendant testifies concerning the defendant's mental condition, the psychiatrist or licensed clinical psychologist may make a statement as to the nature of the examination and the medical or psychological diagnosis of the mental condition of the defendant. The expert may make any explanation reasonably serving to clarify the expert's examination and diagnosis, and the expert may be cross-examined as to any matter bearing on the expert's competency or credibility or the validity of the expert's examination or medical or psychological diagnosis. 2-2-909. Form of verdict and judgment. When the defendant is found not guilty of the charged offense or offenses or any lesser included offense for the reason that due to a mental disorder could not appreciate the criminality of his conduct, the verdict and the judgment must state that reason.
2-2-911. Determination of fitness to proceed -- effect of finding of unfitness -- expenses. (1) The issue of the defendant's fitness to proceed may be raised by the Court, by the defendant or the defendant's counsel, or by the prosecutor. When the issue is raised, it must be determined by the Court. If neither the prosecutor nor the defendant's counsel contests the finding of the report, the court may make the determination on the basis of the report. If the finding is contested, the Court shall hold a hearing on the issue. If the report is received in evidence upon the hearing, the parties have the right to subpoena and cross-examine the psychiatrists or licensed clinical psychologists who joined in the report and to offer evidence upon the issue. (2)
(3) If the court determines that the defendant lacks fitness to proceed because the defendant has a disability that is expected to continue indefinitely that is attributable to mental retardation, or related neurological conditions or illnesses, the proceeding against the defendant must be dismissed and the prosecutor shall petition the court in the manner provided in Title III, Chapter 5, of this Code. (4) The fact that the defendant is unfit to proceed does not preclude any legal objection to the prosecution that is susceptible to fair determination prior to trial and that is made without the personal participation of the defendant. (5) The expenses of sending the defendant to an appropriate institution, of keeping the defendant there, and of bringing the defendant back are chargeable to the Tribes. 2-2-912. Proceedings if fitness regained. When the court, on its own motion or upon the application of the prosecution or the defendant or the defendant's legal representative, determines, after a hearing if a hearing is requested, that the defendant has regained fitness to proceed, the proceeding must 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 proceedings, the court may dismiss the charge and may order the defendant to be discharged or, subject to the law governing the civil commitment of persons suffering from serious mental illness set forth in Ordinance 98, order the defendant committed to an appropriate institution.
(2) The court shall evaluate the nature of the offense with which the defendant was charged. If the offense:
(3) A person so committed must have a hearing within 180 days of confinement to determine the person's present mental condition and whether the person must be discharged or released or whether the commitment may be extended because the person continues to suffer from a mental disorder that renders the person a danger to the person or others. The hearing must be conducted by the court that ordered the commitment. The court shall cause notice of the hearing to be served upon the person, the person's counsel, the prosecutor, and the court that originally ordered the commitment. The hearing is a civil proceeding, and the burden is upon the Tribes to prove by clear and convincing evidence that the person may not be safely released because the person continues to suffer from a mental disorder that causes the person to present a substantial risk of:
(4) According to the determination of the court upon the hearing, the person must be discharged or released on conditions the court determines to be necessary or must be committed to appropriate mental health facility for custody, care, and treatment. (5) A professional person shall review the status of the person each year. At the time of the annual review, the defendant, or his counsel, may petition for discharge or release of the person. Upon request for a hearing, a hearing must be held pursuant to the provisions of subsection (3). 2-2-914. Discharge or release upon motion. (1) If the director of the appropriate mental health facility believes that a person committed may be discharged or released on condition without danger to the person or others because the person no longer suffers from a mental disorder that causes the person to present a substantial risk of serious bodily injury or death to the person or others, a substantial risk of an imminent threat of bodily injury to the person or others, the director shall notify the defendant's counsel, who shall make application for the discharge or release of the person in a report to the Tribal Court and shall send a copy of the application and report to the prosecutor. (2) The person committed may also make application to the court for discharge or release as part of the person's annual treatment review. (3) The court shall then appoint at least one person who is either a qualified psychiatrist or licensed clinical psychologist to examine the person and to report as to the person's mental condition within 60 days or a longer period that the court determines to be necessary for the purpose. To facilitate the examinations and the proceedings on the examinations, the court may have the person confined in any mental health facility located near the place where the court sits that may be suitable for the temporary detention of persons suffering from a mental disorder. (4) The committed person or the person's attorney may secure a professional person of the committed person's choice to examine the committed person and to testify at the hearing. If the person wishing to secure the testimony of a professional person is unable to do so because of financial reasons, the court shall appoint an additional professional person to perform the examination. Whenever possible, the court shall allow the committed person or the person's attorney a reasonable choice of an available professional person qualified to perform the requested examination. The professional person must be compensated by the Tribes. (5) If the court is satisfied by the report filed under subsection (1) and the testimony of the reporting psychiatrist or licensed clinical psychologist that the committed person may be discharged or released on condition because the person no longer suffers from a mental disorder that causes the person to present a substantial risk of serious bodily injury or death to the person or others, a substantial risk of an imminent threat of physical injury to the person or others the court shall order the person's discharge. (6) (a) If the court is not satisfied, it shall promptly order a hearing to determine whether the person may safely be discharged or released on the grounds that the person no longer suffers from a mental disorder that causes the person to present a substantial risk of:
2-2-915. Application for discharge or release by committed person. A committed person may make application for discharge or release to the Tribal Court by which the person was committed, and the procedure to be followed upon the application is the same as that prescribed in the preceding section. However, an application by a committed person need not be considered until the person has been confined for a period of not less than 6 months from the date of the order of commitment, and if the determination of the court is adverse to the application, the person may not be permitted to file a further application until 1 year has elapsed from the date of any preceding hearing on an application for the person's release or discharge.
(2) The court may retain jurisdiction to revoke a conditional release for no longer than 5 years. (3)
If the court finds that the conditional release should be revoked, the
court shall immediately order the person to be recommitted, subject
to discharge or release only in accordance with the procedures provided
in this part.
Trial 2-2-1001. Right to a jury trial. (1) A defendant charged with a Class B, Class C, Class D, or Class E offense has a right to trial by jury of six fair and impartial jurors. (2) A defendant may waive the right to a jury trial in a written voluntary statement to the Court. (3) A defendant must maintain contact with his or her counsel. By failing to maintain contact with counsel, a defendant waives his or her right to a jury trial. 2-2-1002. Priority on the Tribal Court calendar. (1) Prosecutions against defendants held in custody must be disposed of in advance of prosecutions against defendants released on bail, unless otherwise directed by the Tribal Court. (2) Criminal actions take precedence over civil actions when determining a hearing or trial date. 2-2-1003. Questions of law and fact. (1) Issues of fact shall be submitted to the jury, unless a defendant has waived the right to a jury trial. Where there is no jury, issues of fact shall be submitted to the judge. (2) All questions of law must be decided by the judge. 2-2-1004. Rules of evidence in criminal cases. Unless otherwise directed by a specific code provision, the Federal Rules of Evidence apply in criminal actions. Privileges will be those recognized under Tribal Law.
2-2-1006. Burden of proof. A plea of not guilty requires that the prosecution prove beyond a reasonable doubt that the crime alleged was committed and that the defendant committed every necessary element of it.
(2) Unless waived, the prosecution and the defense will be afforded an opportunity to make an opening statement, prior to the presentation of any evidence or testimony. The defense may reserve her or his opening statement until after the prosecution has presented its case in chief. (3) After presenting the opening statement(s), the prosecution must offer evidence supporting the allegations contained in the complaint. The defense shall be given an opportunity to cross-examine any witness called by the prosecution. (4) After the prosecution has rested its case, the defense may give any reserved opening statement and present any defenses or evidence relating to the allegations contained in the complaint. The prosecution shall be given an opportunity to cross-examine any witness called by the defense. (5) Rebuttal evidence may be presented by the prosecution after the conclusion of the defense case when appropriate, and, if necessary, surrebuttal evidence may be offered by the defense. (6) No new evidence may be presented after the prosecution and the defense have rested their cases, unless allowed by the judge in the interest of justice. (7) In a trial by jury, after the close of evidence and before the closing statements arguments are given, the instructions on the law of the case, as submitted in writing by the prosecution and defense shall be considered singly by the court and each one shall be:
All instructions shall be in writing and filed as part of the record. (8) After the judge reads the instructions to the jury and gives the jury a copy of the same, the prosecution and the defense may make a closing argument. The prosecution precedes the defense and may also make a rebuttal closing argument. (9) The jury, or the judge if the case is tried without a jury, shall render a verdict upon the conclusion of the case. If the case is tried to a judge, the verdict shall set forth the court's findings of fact, conclusions of law and a judgment of guilty or not guilty. If the case is tried to a jury, the verdict shall be guilty or not guilty in accordance with the facts and the jury instructions. 2-2-1008. Insufficient evidence. If the Tribal Court determines at the close of the prosecution's case in chief, or at the conclusion of the case, that the evidence presented is insufficient to sustain a conviction for the charged offense or offenses, the Tribal Court may, on its own motion or on the motion of the defense, dismiss the action and discharge the defendant. No new trial may be granted unless the judgment of acquittal is vacated or reversed on appeal.
Juries 2-2-1101. Motion to discharge a jury panel. (1) Any objection to the manner in which the venire has been selected or drawn shall be raised by motion to discharge the jury. The motion shall be made at least 7 days prior to the trial date. (2) The motion shall be made in writing supported by an affidavit which shall state facts which show that the venire was improperly selected or drawn. (3) If the motion states facts which would show that the venire was improperly selected or drawn, it shall be the duty of the Tribal Court to conduct a hearing. The burden of proof shall be on the movant. (4) If the Tribal Court finds that the jury was improperly selected or drawn, the court shall order the jury discharged and the selection or drawing of a new jury. 2-2-1102. Examination of prospective jurors. (1) After sending summons and at least 10 days before trial, the Clerk of Court shall notify the prosecution and defense the names and addresses of the members of the jury panel. (2) In selecting a jury from among the panel members, the initial questioning of the jurors shall be conducted by the judge in order to determine whether each prospective juror is capable of being fair and impartial. Questions to be asked by the court include whether a panel member:
(3) Any panel member whom the Tribal Court determines incapable of acting with impartiality and without prejudice to the rights of either party shall be excused. (4) After questioning by the judge, the prosecutor and defendant or defense counsel may question the panel members to determine impartiality. Either party may question the panel members concerning the nature of the burden of proof in criminal cases and the presumption of innocence. The judge may limit the prosecutor's and defendant's or defense counsel's examination of a panel member when the judge believes such examination to be improper. 2-2-1103. Challenges. (1) The prosecution and defense shall have unlimited challenges for cause. Each challenge must be tried and determined by the Court at the time the challenge is made. (2) The prosecution and defense shall have three peremptory challenges and one peremptory challenge in the event that an alternate juror is selected, unless a lesser number is agreed to by the parties in writing. (3) All challenges must be made to the Tribal Court before the jury is sworn. When a potential challenge for cause is discovered after the jury is sworn and before the introduction of any evidence, the Tribal Court may allow a challenge for cause to be made. 2-2-1104. Conduct of jury during trial. (1) Once empaneled, jurors shall be instructed by the judge that it is their duty not to converse among themselves or with anyone else on any subject connected with the trial, or to form or express any opinion thereon, until the issues of the case are finally submitted to them. (2) At each adjournment recess prior to submission of the case to the jury, the judge shall instruct the jurors as to whether they may separate or must remain in the care of the bailiff or other proper officer of the court. 2-2-1105. View of relevant place or property. (1) Upon request by the prosecution or defense, the Court may allow the jury to view any place or property deemed pertinent to the just determination of the case. (2) If viewing of a place or property is deemed appropriate, the Court shall place the jury under the custody of the bailiff, or other proper officer of the court, who shall then transport the jury to the viewing place. (3) The place or property will be shown to the jury by a person appointed by the court for that purpose, and the jurors may personally inspect the same. (4) The bailiff, or other proper officer of the court, must insure that no person speaks or otherwise communicates with the jury, on any subject connected with the trial, while viewing the place or property or traveling to or from the viewing site. (5) After the jury has viewed the place or property, the bailiff, or other proper officer of the court, shall return the jurors to the courtroom without unnecessary delay or at a specified time, as directed by the court. 2-2-1106. Jury instructions. (1) General instructions may be furnished by the Tribal Court. When either the defendant or the prosecutor desires a special instruction to be given to the jury, such proposed instruction shall be reduced to writing, signed by the party offering the instruction and delivered to the judge at least 5 days before trial unless a different time is established by the judge. For good cause shown, the parties may supplement or withdraw instructions at the close of evidence. (2) All jury instructions shall adequately inform the jurors of:
(3) The party not offering a proposed instruction shall be allowed reasonable opportunity to examine the proposed instruction and object to it. The objection must specifically state on what grounds the instruction is not an accurate statement of the law or is not an appropriate instruction for this particular case and, therefore, should not be given. (4) A dispute regarding a proposed jury instruction must be settled outside of the jury's presence by the court which may hold a settlement hearing. (5) A record must be made at a hearing to settle instructions. (6) A party may not appeal as error any portion of the instructions or omission from the instructions unless an objection was made specifically stating the matter objected to, and the grounds for the objection, at the settlement of instructions or in writing prior to a settlement hearing. (7) The presence of the defendant is not required during the settlement of instructions. (8) After all evidence has been presented, and before closing arguments, the court shall give both general and specific instructions to the jurors. (9) For the record, but not for the jury, the court shall mark or endorse each instruction in such a manner that it shall distinctly appear what proposed instructions were rejected, what were given in whole and what were modified, together with the court's reasons for giving as requested, as modified, or refusing a proposed instruction. (10) All proposed instructions are part of the court record. All objections to jury instructions must be noted on the court record, as well as the Tribal Court's reasons for either giving as requested, as modified, or refusing a proposed instruction. 2-2-1107. Jury deliberations. (1) After closing arguments, the court shall commit the jury to the care of a bailiff or other officer of the court who shall keep the jurors together and prevent communication between the jurors and others. (2) Upon retiring to deliberate, the jurors shall select a juror as foreperson. (3) After the jury has retired for deliberation, if there is any disagreement among the jurors as to the testimony or if the jurors desire to be informed on any point of law arising in the cause, they shall notify the bailiff or the officer appointed to keep them together, who shall then notify the court. The information requested may be given, in the discretion of the court, after consultation with the parties. 2-2-1108. Items that may be taken into jury room. Upon retiring for deliberation, the jurors may take with them the written jury instructions read by the court, notes of the proceedings taken by themselves, and all exhibits that have been received as evidence in the cause that in the opinion of the court will be necessary.
2-2-1110. Form of verdict. (1) The jury shall return a verdict as instructed by the court and for each offense charged. The verdict must be unanimous in all criminal actions. The verdict must be signed by the foreperson and returned by the jury to the judge in open court. (2) When two or more defendants are involved in the case before the jury, the jurors may reach a verdict regarding any one of the defendants. If the jury cannot agree with respect to all the defendants, the defendant or defendants as to whom it does not agree may be tried again. 2-2-1111. Polling the jury. When a verdict is returned, but before it is recorded, the jury shall be polled at the request of any party or upon the court's own motion. If the results of the poll show that the verdict does not reflect unanimous concurrence by each juror, the jury may be directed to return for further deliberations or may be discharged at the court's discretion.
(2) 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 in the offense charged. (3) A lesser included offense instruction must be given when there is a proper request by one of the parties and the jury, based on the evidence, could be warranted in finding the defendant guilty of a lesser included offense. (4) When a lesser included offense instruction is given, the court shall instruct the jury that it must reach a verdict on the crime charged before it may proceed to a lesser included offense. Upon request of the defendant at the settling of instructions, the court shall instruct the jury that it may consider the lesser included offense if it is unable after reasonable effort to reach a verdict on the greater offense. 2-2-1113. Discharging jurors. When the jury has reached a verdict or has determined that it shall be is unable to either acquit or find the defendant guilty, even with additional deliberation, the court shall discharge the jurors from service.
(2) After hearing the motion for a new trial, the court may, in the interest of justice:
(3)
The granting of a new trial places the parties in the same position
as if there had been no trial.
Part 12 Sentence and Judgment 2-2-1201. Rendering judgment and pronouncing sentence. (1) This Part controls all sentencing in all circumstances. Changes in Montana Law do not apply unless expressly adopted by Tribal Council. (2) The judgment shall be rendered in open court. (3) If the verdict or finding is not guilty, judgment shall be rendered immediately and the defendant shall be discharged from custody or from the obligation of his or her bail bond. (4) (a) If the verdict or finding is guilty, sentence shall be pronounced and judgment rendered within a reasonable time.
2-2-1202. Sentencing considerations. (1) Sentences imposed upon those convicted of crime must be based primarily on the following:
2-2-1203. Imposition of sentence. (1) No sentence shall be imposed until:
(2) Sentencing shall be imposed on all offenses pursuant to Tribal law. To the extent that any Montana statute incorporated into Tribal law provides a penalty that conflicts with Tribal sentencing law, Tribal sentencing law will control. (3) An offender found guilty of an offense may be sentenced to one or more of the following penalties:
(4) The court may impose any or all of the following restrictions or conditions as part of a sentence, suspended or otherwise, or a deferred imposition of sentence, for rehabilitative purposes or to protect the Reservation community:
(5) Unless the Tribal Court otherwise directs in its pronouncement of sentence, all sentences stemming from offenses occurring in the same transaction or course of conduct shall run concurrently and not consecutively. (6) Any monies paid to the Tribes or to the victim of an offense as a result of this provision shall be paid through the Clerk of Court. (7) Where the Court in its discretion deems it appropriate, a form of traditional punishment may be imposed in addition to or in place of any punishment provided in this Code. 2-2-1204. Execution of sentence. (1) If the offender is sentenced to imprisonment, the court shall deliver a Detention Order or Judgment outlining the specific requirements of detention to the Tribal law enforcement officers serving as Tribal jailers. The offender shall be discharged from custody by the Tribal law enforcement officers after satisfactorily fulfilling the conditions of the imposed sentence or upon earlier order of the court. (2) If judgment is rendered imposing a fine only, the offender must be discharged after making acceptable arrangements to pay the fine within the period of time specified by the court. The Tribal Court may also allow the offender to perform community service to offset any fine or allow the offender to be imprisoned until the fine is satisfied, applying $50.00 for every day served, unless a different amount is otherwise established by Tribal Council. If no such permission is included in the sentence, the fine shall be paid prior to formal release. (3) If judgment is rendered imposing both imprisonment and a fine, the offender shall be discharged after fulfilling the requirements of subsections (1) and (2) of this section. (4) The Court may in its discretion grant temporary release from custody under any conditions the Court deems appropriate. 2-2-1205. Restitution. (1) When restitution is ordered, the court shall specify the amount, method and payment schedule imposed upon the offender. Before restitution may be ordered, the defendant shall receive notice of the amount and terms requested and shall be entitled to a hearing upon his or her timely request. (2) The fact that restitution was ordered is not admissible as evidence in a civil action and has no legal effect on the merits of a civil action. (3) Except as otherwise provided in this subsection, restitution paid by an offender to an injured person must be deducted from any monetary award granted to said injured person in a civil action arising out of the facts or events which were the basis for the restitution. The court trying the civil action shall determine the amount of any reduction due to payment of restitution by an offender under this section. However, in the event that criminal and civil actions against an offender arising from the same transaction or events are heard in courts of different jurisdictions, one of which is the Tribal Court, the Tribal Court shall adjust offender's payments within its jurisdictional control for restitution or otherwise to assure that an injured party does not recover twice for the same harm. (4) An offender may petition for modification of sentence imposing restitution and request a hearing on the matter. The injured person shall be given notice by the offender of any proposed modification and afforded an opportunity to be heard on the proposed modification. 2-2-1206. Payment of fines and restitution. (1) All monies collected as the result of a fine imposed by the Tribal Court shall be paid through the Clerk of Court. Upon receiving the monies, the Clerk shall:
(2) All monies collected for restitution shall be paid through the Clerk of Court. Upon receiving the monies the Clerk shall:
2-2-1207. Revocation of parole or suspended or deferred sentence. (1) If a petition requesting revocation has been filed and a revocation hearing held, the Tribal Court may revoke a defendant's parole or suspension or deferral of sentence if a preponderance of the evidence shows the imposed conditions of the parole, or suspension, or deferral of sentence have been violated. (2) A petition seeking revocation of a parole or a suspended sentence or imposition of a sentence previously deferred must be filed during the period of parole, suspension or deferral, or within 5 days after the period of parole, suspension, or deferral ends if the offender's violation of a condition of parole or probation occurred within the final 48 hours prior to the end of the period. Expiration of a parole or the time ordered under a suspended or deferred sentence prior to a hearing for revocation does not deprive the Tribal Court of jurisdiction to rule on the revocation petition. (3) This is the exclusive remedy for violation of a condition of parole, or suspended or deferred sentence. 2-2-1208. Dismissal and expungement after deferred sentence. Whenever the court has deferred the imposition of sentence and after expiration of the period of deferral and after the defendants successful completion of any conditions of deferral, upon motion by the court, the defendant, or the defendant's counsel, the court shall allow the defendant to withdraw his or her plea of guilty or strike the verdict or judgment expunging the court records of all record of the proceedings by entering an order of dismissal of charges and expungement, inscribing each record of the proceedings with the word "Expunged" and sealing the file.
(2) Unless the offender shows that the nonpayment was not attributable to an intentional refusal to obey a Tribal Court order or the offender's failure to make a good faith effort to make the ordered payments, the Tribal Court may find the offender in contempt and order the person incarcerated until the fine is satisfied. Time served shall be credited against the fine at the rate of $50.00 per day unless otherwise set by the Tribal Council. (3) If the Court determines that the offender's nonpayment does not constitute contempt, the Court may modify the original sentence, judgment, or order, allowing the offender additional time to pay the fine or restitution or reducing the amount owed. 2-2-1210. Credit for time served. If a defendant has served any of the defendant's sentence under a commitment based upon a judgment that is subsequently declared invalid or that is modified during the term of imprisonment, the time served must be credited against any subsequent sentence received upon a new commitment for the same criminal act or acts. This does not include time served pursuant to Section 2-2-610(1)(c). (Rev. 1-27-00.)
(2) Any person incarcerated on a bailable offense who does not supply bail and against whom a fine is levied on conviction of the offense must be allowed a credit for each day of incarceration prior to conviction, except that the amount allowed or credited may not exceed the amount of the fine. The daily rate of credit for incarceration is $50.00 per day unless otherwise set by the Tribal Council. This does not include time served pursuant to Section 2-2-610(1)(c). (Rev. 1-27-00.)
(1) A defendant shall make an initial appearance in Traffic Court on the date and time specified on the traffic citation. If the defendant is under the age of eighteen (18) years, a parent or guardian must accompany the defendant to the initial appearance, be available to advise the defendant, and sign applicable forms with the defendant. (2) At the Initial Appearance, the judge shall advise the defendant of his or her rights and of the Traffic Court procedures for appearance. (3) After informing the defendant of the charge(s) and possible penalties, the judge shall ask the defendant how he or she pleads. (4) If the defendant pleads guilty or no contest, the judge shall then proceed to sentencing. After the judge informs the defendant of the sentence, the defendant may make arrangements for the payment of any fines imposed. A Judgment form shall be completed and signed by the judge and a copy shall be provided to the Defendant. The Judgment shall announce the Judgment rendered, sentence imposed, and the fine payment deadline. (5) If the defendant pleads not guilty, the judge shall schedule a date and time for a Traffic Court Bench Trial. Jury trials are not provided in Traffic Court. (6) If the defendant pleads not guilty, the judge shall order the citing officer to provide the defendant with a written report describing the circumstances of the offense. The report shall be provided at least 10 days before the trial.
(1) Traffic Court Bench Trials shall be held in the Tribal Courtroom on the date and time set in the Scheduling Order. Either the defendant or the citing officer may request a continuance of the bench trial which shall be granted for good cause by the Court. (2)The citing officer and the defendant each bear the responsibility of notifying the witnesses they wish to call to testify at the bench trial. Upon request by either party, the Court shall issue subpoenas for any witness whose testimony is necessary for a just adjudication of the case at trial. (3) Traffic Court Bench Trials shall be recorded as provided in § 2-2-1301 of this code and all witnesses shall be sworn before being allowed to testify. (4) The citing officer shall present the Tribes' case first. The citing officer may testify and present evidence to the Court. The Defendant may cross-examine the citing officer and any witnesses called by the citing officer. (5) After the citing officer has presented the Tribes' case, the defendant may then present his or her case to the Court. The defendant may elect to testify, but may not be required to testify. The defendant may call witnesses to testify on his or her behalf and may present other evidence regarding the charge(s). The citing officer may cross-examine the defendant's witnesses. (6) After the defendant has concluded his or her case, the parties may make concluding arguments before the Court. (7) On the record, after considering the testimony and evidence presented at trial, the judge shall find the defendant either guilty or not guilty on the charge(s). If the defendant is found guilty, the judge shall announce the sentence for each offense and the deadline for payment of fines or the completion of other penalties. The defendant may enter into a payment schedule agreement with the Court.
(1) If a defendant fails to appear in Traffic Court on the date and time scheduled for initial appearance or on the date and time scheduled for trial, the Judge may issue a warrant for the defendant's arrest. (2) If a juvenile defendant fails to appear in Traffic Court on the date and time scheduled for initial appearance or on the date and time scheduled for trial, the judge may issue a Summons for the defendant and for the defendant's parent or guardian to appear and show cause for non-appearance. (3) If a juvenile defendant and the defendant's parent or guardian fail to appear after having been summonsed to show cause, the Judge may issue a warrant for the arrest of the defendant's parent or guardian for contempt and may further refer the matter to Juvenile Court for action.
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