REPUBLIC OF THE MARSHALL ISLANDS

 

Rules of Criminal Procedure

 

effective May 1, 2005

 

TITLE I. APPLICABILITY

Rule 1. Scope; Definitions; Interpretation

(a) Scope

(b) Definitions

(c) Interpretation

Rule 2. Courts

(a) Jurisdiction

(b) Court Officials

 

TITLE II. PRELIMINARY PROCEEDINGS

Rule 3. Statement of Charges

(a) Information

(b) Citation

(c) Amendments

(d) Bill of Particulars

Rule 4. Arrest Warrant or Summons on an Information; Oral Orders

(a) Issuance

(b) Form

(c) Execution or Service, and Return

(d) Issuance of oral order in lieu of warrant or penal summons by Community Court

Rule 4.1. Use of Citations

Rule 5. Initial Appearance

(a) In General

(b) Arrest Without a Warrant

(c) Reserved

(d) Procedure

(e) Video Teleconferencing

Rule 5.1. Preliminary Hearing

(a) In General

(b) Reserved

(c) Scheduling

(d) Extending the Time

(e) Hearing and Finding

(f) Discharging the Defendant

(g) Recording the Proceedings

 

TITLE III. JOINDER OF OFFENSES AND DEFENDANTS

Rule 6. Reserved

Rule 7. Reserved

Rule 8. Joinder of Offenses or Defendants

(a) Joinder of Offenses.

(b) Joinder of Defendants

Rule 9. Reserved

 

TITLE IV. ARRAIGNMENT AND PREPARATION FOR TRIAL

Rule 10. Arraignment

(a) In General

(b) Waiving Appearance

(c) Video Teleconferencing

Rule 11. Pleas

(a) Entering a Plea

(b) Considering and Accepting a Guilty or Nolo Contendere Plea

(c) Plea Agreement Procedure

(d) Withdrawing a Guilty or Nolo Contendere Plea

(e) Finality of a Guilty or Nolo Contendere Plea

(f) Admissibility or Inadmissibility of a Plea, Plea Discussions, and Related Statements

(g) Recording the Proceedings

(h) Harmless Error

Rule 12. Pleadings and Pretrial Motions

(a) Pleadings

(b) Pretrial Motions

(c) Motion Deadline

(d) Ruling on a Motion

(e) Waiver of a Defense, Objection, or Request

(f) Recording the Proceedings

(g) Defendantís Continued Custody or Release Status

Rule 13. Joint Trial of Separate Cases

Rule 14. Relief from Prejudicial Joinder

(a) Relief

(b) Defendantís Statements

Rule 15. Depositions

(a) When Taken

(b) Notice

(c) Defendantís Presence

(d) Expenses

(e) Manner of Taking

(f) Use as Evidence

(g) Objections

(h) Depositions by Agreement Permitted

Rule 16. Disclosure and Discovery

(a) When

(b) Motions

(c) Disclosure by the Government

(d) Disclosure by Government to Defendant by Court Order Requiring a Showing of Good Cause

(e) Disclosure by Defendant to Government Without Court Order

(f) Disclosure by Defendant to Government by Court Order Requiring a Showing of Good Cause

(g) Manner of Making Disclosure

(h) Continuing Duty to Disclose

(i) Use of Matters Disclosed

(j) Matters Not Subject to Disclosure

(k) Protective Orders

(l) Sanctions

Rule 17. Subpoena

(a) Content

(b) Defendant Unable to Pay

(c) Producing Documents and Objects

(d) Service

(e) Place of Service

(f) Issuing a Deposition Subpoena

(g) Contempt

(h) Attendance of Child as Witness

(i) Detention and release of witness

Rule 17.1. Pretrial Conference

 

TITLE V. RESERVED

Rule 18. Reserved

Rule 19. Reserved

Rule 20. Reserved

Rule 21. Reserved

Rule 22. Reserved

 

TITLE VI. TRIAL

Rule 23. Jury or Non-jury Trial

(a) Jury Trial

(b) Jury Size

(c) Non-jury Trial

Rule 24. Trial Jurors

(a) Examination

(c) Peremptory Challenges

Rule 25. Judgeís Disability

(a) During Trial

(b) After a Verdict or Finding of Guilty

Rule 26. Taking Testimony

Rule 26.1. Foreign Law Determination

Rule 26.2. Reserved

Rule 26.3. Mistrial

Rule 27. Proving an Official Record

Rule 28. Interpreters

Rule 29. Motion for a Judgment of Acquittal

(a) At the Close of the Governmentís Case

(b) Reserving Decision

(c) After Jury Verdict or Discharge

(d) Conditional Ruling on a Motion for a New Trial

Rule 29.1. Trial Procedure

(a) Opening Statements

(b) Calling Witnesses

(c) Administering Oath

(d) Direct Examination

(e) Cross-Examination

(f) Re-direct Examination

(g) Prosecution Closes

(h) Consideration of Prosecutionís Evidence

(i) The Defense

(j) Defense Closes

(k) Rebuttal

(l) Summation

(m) Examination of Witnesses by the Court

Rule 30. Jury Instructions

(a) In General

(b) Ruling on a Request

(c) Time for Giving Instructions

(d) Objections to Instructions

Rule 31. Jury Verdict

(a) Return

(b) Partial Verdicts, Mistrial, and Retrial

(c) Lesser Offense or Attempt

(d) Jury Poll

 

TITLE VII. POST-CONVICTION PROCEDURES

Rule 32. Sentencing and Judgment

(a) Definitions

(b) Time of Sentencing

(c) Reserved

(d) Reserved

(e) Reserved

(f) Reserved

(g) Reserved

(h) Reserved

(i) Sentencing

(j) Defendantís Right to Appeal

(k) Judgment

Rule 32.1. Revoking or Modifying Probation or Supervised Release

(a) Initial Appearance

(b) Revocation

(c) Modification

(d) Disposition of the Case

Rule 32.2. Seized Property

(a) Retention

(b) Disposition

Rule 33. New Trial

(a) Defendantís Motion

(b) Time to File

Rule 34. Arresting Judgment

(a) In General

(b) Time to File

Rule 35. Correcting or Reducing a Sentence

(a) Correcting Clear Error

(b) Reducing a Sentence for Substantial Assistance

Rule 36. Clerical Error

Rule 37. Reserved

Rule 38. Staying a Sentence or a Disability

(a) Reserved

(b) Imprisonment

(c) Fine

(d) Probation

(e) Restitution and Notice to Victims

(f) Disability

Rule 39. Reserved

 

TITLE VIII. SUPPLEMENTARY AND SPECIAL PROCEEDINGS

Rule 40. Reserved

Rule 41. Search and Seizure

(a) Scope and Definitions

(b) Authority to Issue a Warrant

(c) Persons or Property Subject to Search or Seizure

(d) Obtaining a Warrant

(e) Issuing the Warrant

(f) Executing and Returning the Warrant

(g) Motion to Return Property

(h) Motion to Suppress

(i) Forwarding Papers to the Clerk

(j) Confidentiality of Warrant Information

(k) Oral order in lieu of search warrant.

(l) Entering building or ship to execute search warrant

Rule 42. Criminal Contempt

(a) Disposition After Notice

(b) Summary Disposition

(c) Review and Appeal

 

TITLE IX. GENERAL PROVISIONS

Rule 43. Defendantís Presence

(a) When Required

(b) When Not Required

(c) Waiving Continued Presence

Rule 44. Right to and Appointment of Counsel

(a) Right to Appointed Counsel

(b) Reserved

(c) Inquiry Into Joint Representation

Rule 45. Computing and Extending Time

(a) Computing Time

(b) Extending Time

(c) Additional Time After Service

Rule 46. Release from Custody; Supervising Detention

(a) Before Trial

(b) During Trial

(c) Pending Sentencing or Appeal

(d) Pending Hearing on a Violation of Probation or Supervised Release

(e) Surety

(f) Bail Forfeiture

(g) Exoneration

(h) Supervising Detention Pending Trial

(i) Forfeiture of Property

Rule 47. Motions and Supporting Affidavits

(a) In General

(b) Form and Content of a Motion

(c) Timing of a Motion

(d) Memorandum of Points and Authorities and Affidavit Supporting a Motion

(e) Argument

Rule 48. Dismissal

(a) By the Government

(b) By the Court

Rule 49. Serving and Filing Papers

(a) When Required

(b) How Made

(c) Notice of a Court Order

(d) Filing

Rule 50. Prompt Disposition

Rule 51. Preserving Claimed Error

(a) Exceptions Unnecessary

(b) Preserving a Claim of Error

Rule 52. Harmless and Plain Error

(a) Harmless Error

(b) Plain Error

Rule 53. Courtroom Photographing and Broadcasting Prohibited

Rule 54. Reserved

Rule 55. Records

(a) Upon Appeal

(b) Trials Other than Appeals

(c) Language

(d) Clerical Mistakes

(e) Lost Records

(f) Signing and Transmittal of Records

(g) Responsibility for the Record

(h) Duties of Clerk of Courts

(i) Records Open to the Public

Rule 56. When Court Is Open

(a) In General

(b) Office Hours

(c) Special Hours

Rule 57. Impounding and Disposition of Funds and Other Property

(a) Impounding

(b) Disposition

Rule 58. Reserved

Rule 59. Procedure Not Otherwise Specified

Rule 60. Title

Rule 61. Effective Date

 

-------------------------------------

 

TITLE I. APPLICABILITY

 

Rule 1. Scope; Definitions; Interpretation

 

(a) Scope

 

(1) In General. These rules govern the procedure in all criminal proceedings in the Republic of the Marshall Islands.

 

(2) Community Courts. Community Courts need only follow such parts of these rules that specifically mention them, and, in other matters may follow generally recognized local customs or their own best judgment as to procedure, provided such custom or judgment is not inconsistent with law and does not militate against a just determination of the issues. Provided, further, that a Community Court may follow any other parts of these rules which are not expressly limited to some other court or courts.

 

(3) Excluded Proceedings. Proceedings not governed by these rules include:

 

(A) the extradition and rendition of a fugitive;

 

(B) a civil property forfeiture for violating a statute;

 

(C) the collection of a fine or penalty;

 

(D) a proceeding under a statute governing juvenile delinquency to the extent the procedure is inconsistent with the statute and applicable rules; and

 

(E) a proceeding against a witness in a foreign country.

 

(b) Definitions. The following definitions apply to these rules:

 

(1) ďcourtĒ means a judge performing functions authorized by law.

 

(2) ďgovernmentĒ means the Government of the Republic or a local government as appropriate.

 

(3) ďgovernment prosecutorĒ means:

 

(A) the Attorney General or an authorized deputy or assistant;

 

(B) when applicable to cases arising under a local government ordinance, a local government prosecutor authorized by the Attorney-General; and

 

(C) any other attorney or person authorized by the Attorney-General to conduct proceedings under these rules as a prosecutor.

 

(4) ďjudgeĒ means a judge of the Republicís Supreme Court, High Court, District Court or a Community Court.

 

(5) ďoathĒ includes an affirmation.

 

(6) ďorganizationĒ means a legal entity other than a natural person.

 

(7) ďpolice officerĒ means a member of the Republicís Department of Public Safety or a local government police force authorized to act as a police officer.

 

(8) ďRepublicĒ means the Republic of the Marshall Islands.

 

(9) ďRules of Civil ProcedureĒ mean the Marshall Islands Rules of Civil Procedure.

 

(10) ďRules of EvidenceĒ or ďRule of EvidenceĒ means the Marshall Islands Rules of Evidence.

 

(c) Interpretation. These rules are to be interpreted to provide for the just determination of every criminal proceeding, to secure simplicity in procedure and fairness in administration, and to eliminate unjustifiable expense and delay.

 

Rule 2. Courts

 

(a) Jurisdiction. Before proceeding with an arraignment or trial, the court, including a Community Court, must satisfy itself that it is authorized to try the defendant and the offense with which the defendant is charged; provided, however, a court that does not have jurisdiction to try a case may conduct the first appearance and the preliminary hearing under these rules.

 

(b) Court Officials. Official reporters or interpreters must before assuming their duties take an oath to perform such duties to the best of their ability. Other court personnel are not required to take such an oath.

 

TITLE II. PRELIMINARY PROCEEDINGS

 

Rule 3. Statement of Charges

 

(a) Information. The information is a plain, concise, and definite written statement of the essential facts constituting the offense charged signed by a government prosecutor. All felonies and any misdemeanor filed in the first instance in the High Court (except contempt proceedings) must be prosecuted by a written information. Any other misdemeanor may also be prosecuted by an information. When an information is filed in any case, it constitutes the formal statement upon which the defendant is to be tried and any variance between the information and the citation is immaterial. An information need not contain a formal introduction or conclusion. A count may incorporate by reference an allegation made in another count. A count may allege that the means by which the defendant committed the offense are unknown or that the defendant committed it by one or more specified means. For each count, the information must give the official or customary citation of the statute, rule, regulation, or other provision of law that the defendant is alleged to have violated. Unless the defendant was misled and thereby prejudiced, neither an error in a citation nor a citationís omission is a ground to dismiss the information or to reverse a conviction. Upon the defendantís motion, the court may strike surplus usage from the information.

 

(b) Citation. The citation is a written order to appear before a court at a time and place named therein to answer a criminal charge briefly described in the citation. Any misdemeanor tried in the first instance in the District Court or a Community Court may be prosecuted by a citation in place of an information if signed by a government prosecutor. A citation must contain a warning that failure to obey it will render the defendant liable to be charged under an information upon which a warrant of arrest may be issued. The court may accept a fixed-sum payment in lieu of the defendantís appearance on a citation and end the case, but the sum may not exceed the maximum fine allowed by law.

 

(c) Amendments. Unless a substantial right of the defendant is prejudiced, the court may permit the government to amend an information or citation at any time before the verdict or finding.

 

(d) Bill of Particulars. The court may direct the government to file a bill of particulars. The defendant may move for a bill of particulars before or within 10 days after arraignment or at a later time if the court permits. The government may amend a bill of particulars subject to such conditions as justice requires.

 

Rule 4. Arrest Warrant or Summons on an Information.

 

(a) Issuance. If one or more affidavits filed with an information establishes probable cause to believe that an offense has been committed and that the defendant committed it, the judge must issue an arrest warrant to an officer authorized to execute it. At the request of a government prosecutor, the judge must issue a summons, instead of a warrant, to a person authorized to serve it. A judge may issue more than one warrant or summons on the same information. If a defendant fails to appear in response to a summons, a judge may, and upon request of a government prosecutor must, issue a warrant.

 

(b) Form

 

(1) Warrant. A warrant must:

 

(A) contain the defendantís name or, if it is unknown, a name or description by which the defendant can be identified with reasonable certainty;

 

(B) describe the offense charged in the information or attached copy of the information;

 

(C) command that the defendant be arrested and brought without unnecessary delay before a judge; and

 

(D) be signed by a judge.

 

(2) Summons. A summons must be in the same form as a warrant except that it must require the defendant to appear before a judge at a stated time and place. It also must contain a warning that failure to obey will render the defendant liable to arrest upon a warrant.

 

(c) Execution or Service, and Return

 

(1) By Whom. Only a police officer or other authorized officer may execute a warrant or serve a summons.

 

(2) Location. A warrant may be executed, or a summons served, within the jurisdiction of the Republic or anywhere else a statute authorizes an arrest.

 

(3) Manner.

 

(A) A warrant is executed by arresting the defendant. Upon arrest, an officer possessing the warrant must show it to the defendant and orally explain its substance. If the officer does not possess the warrant, the officer must inform the defendant of the warrantís existence and of the offense charged and, at the defendantís request, must show the warrant to the defendant as soon as possible.

 

(B) A summons is served on an individual defendant:

 

(i) by delivering a copy to the defendant personally; or

 

(ii) by leaving a copy at the defendantís residence or usual place of abode or employment with a person of suitable age and discretion residing or employed at that location and by mailing a copy to the defendantís last known address.

 

(C) A summons is served on an organization by delivering a copy to an officer, to a managing or general agent, or to another agent appointed or legally authorized to receive service of process. A copy must also be mailed to the organizationís last known address or to its principal place of business elsewhere in the Republic.

 

(4) Return.

 

(A) After executing a warrant, the officer must sign a report of the officerís actions thereon, showing the date and place of the arrest, and must return the warrant and the report to the judge before whom the defendant is brought in accordance with Rule 5, or the court named in the warrant if the defendant is released on bail or personal recognizance before being brought before a court or official. At the request of a government prosecutor, an unexecuted warrant must be brought back to and canceled by a judge.

 

(B) At or before the time stated in a summons for appearance of the defendant, the person who served the summons must sign a report of the personís actions thereon, showing the date, place, and method of service, and return the summons and report to the court named in the summons.

 

(C) At the request of a government prosecutor, a judge may deliver an unexecuted warrant, an unserved summons, or a copy of the warrant or summons to the police officer or other authorized person for execution or service.

 

(d) Issuance of oral order in lieu of warrant or penal summons by Community Court(d)

 

(1) A Community Court or any judge thereof may, if the court or judge deems the public interest so requires, issue an oral order in place of either a warrant of arrest or a penal summons, which shall have the same force and effect within the territorial jurisdiction of that court as a warrant or penal summons.

 

(2) Such an oral order may be served by orally communicating the substance thereof to the defendant and the report of execution or service of such an order may be made orally.

 

(3) Any person making an arrest on an oral order or serving such an order in place of a penal summons shall report all the essential facts to the court or official before whom the defendant is brought or ordered to appear.

 

(4) Any person by going to trial before a Community Court without requesting a copy of the charges against him thereby waives his right to have a copy in advance of trial in that court, but he does not thereby waive his right to such copy before trial in a District Court in the event of an appeal.

 

Rule 4.1. Use of Citations

 

A police officer in any case in which the officer may lawfully arrest a person without a warrant, may, subject to such limitations as superiors may impose, issue and serve a citation upon the person instead of making an arrest, if the officer deems that the public interest does not require an arrest.

 

Rule 5. Initial Appearance

 

(a) In General

 

(1) Appearance Upon an Arrest.

 

(A) A person making an arrest within the Republic must take the defendant without unnecessary delay before a judge, usually within 24 hours excluding weekends and holidays, unless a statute provides otherwise.

 

(B) A person making an arrest outside the Republic must take the defendant without unnecessary delay before a judge, unless a statute provides otherwise.

 

(2) Exceptions. If a defendant is arrested for violating probation or supervised release, Rule 32.1 applies.

 

(3) Appearance Upon a Summons or Citation. When a defendant appears in response to a summons under Rule 4 or citation under Rule 4.1, a judge must proceed under Rule 5(d).

 

(b) Arrest Without a Warrant. If a defendant is arrested without a warrant, an information meeting Rule 4(a)ís requirement of probable cause must be promptly filed in an appropriate court.

 

(c) Reserved

 

(d) Procedure

 

(1) Advice. At the defendantís initial appearance, the judge must inform the defendant of the following:

 

(A) the defendantís right to be informed of the nature and cause of the accusations against the defendant and of the information or citation filed with the court,

 

(B) the defendantís right to challenge the arrestís legality,

 

(C) the defendantís right to see and contact legal counsel, family and employer,

 

(D) the defendantís right to be charged or released within a reasonable time,

 

(E) the defendantís right to remain silent and that anything said can be used against the defendant,

 

(F) the defendantís right to retain legal counsel and, if the defendant does not have the funds to retain legal counsel, to have the court appoint legal counsel for the defendant at no charge,

 

(G) the defendantís right to pretrial release subject to reasonable assurance that the defendant will not flee or gravely endanger public safety, and

 

(H) any right to a preliminary hearing.

 

(2) Consulting with Counsel. The judge must allow the defendant reasonable opportunity to consult with counsel.

 

(3) Detention or Release. The judge must detain or release the defendant as provided by the Constitution, statute, and these rules.

 

(4) Plea. A defendant may be asked to plead only under Rule 10.

 

(e) Video Teleconferencing. Video teleconferencing may be used to conduct an appearance under this rule if the defendant consents.

 

Rule 5.1. Preliminary Hearing

 

(a) In General. A judge must conduct a preliminary hearing unless:

 

(1) the defendant waives the hearing; or

 

(2) the defendant is only charged with a misdemeanor offense and a judge has issued an arrest warrant or a penal summons upon good cause that the misdemeanor offense charged was committed and that the defendant committed it.

 

(b) Reserved

 

(c) Scheduling. The judge must hold the preliminary hearing within a reasonable time, but no later than 10 days after the initial appearance if the defendant is in custody and no later than 45 days if not in custody.

 

(d) Extending the Time. With the defendantís consent and upon a showing of good causeótaking into account the public interest in the prompt disposition of criminal casesóa judge may extend the time limits in Rule 5.1(c) one or more times. If the defendant does not consent, the judge may extend the time limits only on a showing that extraordinary circumstances exist and justice requires the delay.

 

(e) Hearing and Finding. At the preliminary hearing, the defendant may cross-examine adverse witnesses and may introduce evidence but may not object to evidence on the ground that it was unlawfully acquired. If the judge finds good cause to believe an offense has been committed and the defendant committed it, the judge must promptly require the defendant to appear for further proceedings.

 

(f) Discharging the Defendant. If the judge finds no good cause to believe an offense has been committed or the defendant committed it, the judge must dismiss the statement of charges and discharge the defendant. A discharge does not preclude the government from later prosecuting the defendant for the same offense.

 

(g) Recording the Proceedings. The preliminary hearing must be recorded by a court reporter or by a suitable recording device. A recording of the proceeding may be made available to any party upon request. A copy of the recording and a transcript may be provided to any party upon request and upon any payment required by applicable regulations.

 

TITLE III. JOINDER OF OFFENSES AND DEFENDANTS

 

Rule 6. Reserved

 

Rule 7. Reserved

 

Rule 8. Joinder of Offenses or Defendants.

 

(a) Joinder of Offenses. An information or citation may charge a defendant in separate counts with two or more offenses if the offenses charged are of the same or similar character, or are based on the same act or transaction, or are connected with or constitute parts of a common scheme or plan. The counts in an information may charge a defendant with felonies, misdemeanors, or both.

 

(b) Joinder of Defendants. An information may charge two or more defendants if they are alleged to have participated in the same act or transaction, or in the same series of acts or transactions, constituting an offense or offenses. The defendants may be charged in one or more counts together or separately. All defendants need not be charged in each count.

 

Rule 9. Reserved.

 

TITLE IV. ARRAIGNMENT AND PREPARATION FOR TRIAL

 

Rule 10. Arraignment

 

(a) In General. An arraignment must be conducted in open court and must consist of:

 

(1) ensuring that the defendant has a copy of the information or citation;

 

(2) reading the information or citation to the defendant or stating to the defendant the substance of the charge; and then

 

(3) asking the defendant to plead to the information or citation.

 

The court shall inform the defendant that failure to appear after arraignment may be deemed a waiver or forfeiture of the right to be present during the trial and that the trial will continue in the defendantís absence.

 

(b) Waiving Appearance. A defendant need not be present for the arraignment if

 

(1) the defendant, in a written waiver signed by both the defendant and defense counsel, has waived appearance and has affirmed that the defendant received a copy of the information or citation, that the plea is not guilty, and that the defendant understands that the defendantís failure to appear at trial may be deemed a waiver or forfeiture of the right to be present during the trial and that the trial will continue in the defendantís absence; and

 

(2) the court accepts the waiver.

 

(c) Video Teleconferencing. Video teleconferencing may be used to arraign a defendant if the defendant consents.

 

Rule 11. Pleas

 

(a) Entering a Plea

 

(1) In General. A defendant may plead not guilty, guilty, or (with the courtís consent) nolo contendere.

 

(2) Conditional Plea. With the consent of the court and the government, a defendant may enter a conditional plea of guilty or nolo contendere, reserving in writing the right to have an appellate court review an adverse determination of a specified pretrial motion. A defendant who prevails on appeal may then withdraw the plea.

 

(3) Nolo Contendere Plea. Before accepting a plea of nolo contendere, the court must consider the partiesí views and the public interest in the effective administration of justice.

 

(4) Failure to Enter a Plea. If a defendant refuses to enter a plea or if a defendant organization fails to appear, the court must enter a plea of not guilty.

 

(b) Considering and Accepting a Guilty or Nolo Contendere Plea

 

(1) Advising and Questioning the Defendant. Before the court accepts a plea of guilty or nolo contendere, the defendant may be placed under oath, and the court must address the defendant personally in open court. During this address, the court must inform the defendant of, and determine that the defendant understands, the following:

 

(A) governmentís right, in a prosecution for perjury or false statement, to use against the defendant any statement that the defendant gives under oath;

 

(B) the right to plead not guilty, or having already so pleaded, to persist in that plea;

 

(C) the right to be presumed innocent until proven guilty beyond a reasonable doubt;

 

(D) the right to a speedy and public trial before an impartial tribunal and, if applicable, before a jury;

 

(E) the right to adequate time and facilities to prepare a defense;

 

(F) the right to represent himself or to be represented by legal counselóand if necessary have the court appoint counsel at no cost to himóat trial and at every other stage of the proceeding;

 

(G) the right at trial to confront and cross-examine adverse witnesses, to remain silent and be protected from compelled self-incrimination, to object to illegally obtained evidence, such as the fruits of an illegal search or seizure or an illegally obtained confession, to testify and present evidence, and to compel the attendance of witnesses;

 

(H) the defendantís waiver of these trial rights if the court accepts a plea of guilty or nolo contendere;

 

(I) the nature of each charge to which the defendant is pleading;

 

(J) any maximum possible penalty, including imprisonment, fine, and term of supervised release;

 

(K) any mandatory minimum penalty;

 

(L) any applicable forfeiture;

 

(M) any court ordered restitution; and

 

(N) the terms of any plea-agreement provision waiving the right to appeal or to collaterally attack the sentence.

 

(2) Ensuring That a Plea Is Voluntary. Before accepting a plea of guilty or nolo contendere, the court must address the defendant personally in open court and determine that the plea is voluntary and did not result from force, threats, or promises (other than promises in a plea agreement).

 

(3) Determining the Factual Basis for a Plea. Before entering judgment on a guilty plea, the court must determine that there is a factual basis for the plea.

 

(c) Plea Agreement Procedure

 

(1) In General. A government prosecutor and the defendantís attorney, or the defendant when proceeding pro se, may discuss and reach a plea agreement. The court must not participate in these discussions. If the defendant pleads guilty or nolo contendere to either a charged offense or a lesser or related offense, the plea agreement may specify that a government prosecutor will:

 

(A) not bring, or will move to dismiss, other charges;

 

(B) recommend, or agree not to oppose the defendantís request, that a particular sentence or sentencing range is appropriate (such a recommendation or request does not bind the court); or

 

(C) agree that a specific sentence or sentencing range is the appropriate disposition of the case, or that a particular policy statement or sentencing factor does or does not apply (such a recommendation or request binds the court once the court accepts the plea agreement).

 

(2) Disclosing a Plea Agreement. The parties must disclose the plea agreement in open court when the plea is offered, unless the court for good cause allows the parties to disclose the plea agreement in camera.

 

(3) Judicial Consideration of a Plea Agreement.

 

(A) To the extent the plea agreement is of the type specified in Rule 11(c)(1)(A) or (C), the court may accept the agreement or reject it.

 

(B) To the extent the plea agreement is of the type specified in Rule 11(c)(1)(B), the court must advise the defendant that the defendant has no right to withdraw the plea if the court does not follow the recommendation or request.

 

(4) Accepting a Plea Agreement. If the court accepts the plea agreement, it must inform the defendant that to the extent the plea agreement is of the type specified in Rule 11(c)(1)(A) or (C), the agreed disposition will be included in the judgment.

 

(5) Rejecting a Plea Agreement. If the court rejects a plea agreement containing provisions of the type specified in Rule 11(c)(1)(A) or (C), the court must do the following on the record and in open court (or, for good cause, in camera):

 

(A) inform the parties that the court rejects the plea agreement;

 

(B) advise the defendant personally that the court is not required to follow the plea agreement and give the defendant an opportunity to withdraw the plea; and

 

(C) advise the defendant personally that if the plea is not withdrawn, the court may dispose of the case less favorably toward the defendant than the plea agreement contemplated.

 

(d) Withdrawing a Guilty or Nolo Contendere Plea

 

(1) before the court accepts the plea, for any reason or no reason; or

 

(2) after the court accepts the plea, but before it imposes sentence if:

 

(A) the court rejects a plea agreement under Rule 11(c)(5); or

 

(B) the defendant can show a fair and just reason for requesting the withdrawal.

 

(e) Finality of a Guilty or Nolo Contendere Plea. After the court imposes sentence, the defendant may not withdraw a plea of guilty or nolo contendere, and the plea may be set aside only on direct appeal or collateral attack.

 

(f) Admissibility or Inadmissibility of a Plea, Plea Discussions, and Related Statements. The admissibility or inadmissibility of a plea, a plea discussion, and any related statement is governed by Rule of Evidence 410.

 

(g) Recording the Proceedings. The proceedings during which the defendant enters a plea must be recorded by a court reporter or by a suitable recording device. If there is a guilty plea or a nolo contendere plea, the record must include the inquiries and advice to the defendant required under Rule 11(b) and (c).

 

(h) Harmless Error. A variance from the requirements of this rule is harmless error if it does not affect substantial rights.

 

Rule 12. Pleadings and Pretrial Motions

 

(a) Pleadings. The pleadings in a criminal proceeding are the information or citation, and the pleas of not guilty, guilty, and nolo contendere.

 

(b) Pretrial Motions

 

(1) In General. Rule 47 applies to a pretrial motion.

 

(2) Motions That May Be Made Before Trial. A party may raise by pretrial motion any defense, objection, or request that the court can determine without a trial of the general issue.

 

(3) Motions That Must Be Made Before Trial. The following must be raised before trial:

 

(A) a motion alleging a defect in instituting the prosecution;

 

(B) a motion alleging a defect in the information or citationóbut at any time while the case is pending, the court may hear a claim that the information or citation fails to invoke the courtís jurisdiction or to state an offense;

 

(C) a motion to suppress evidence;

 

(D) a Rule 14 motion to sever charges or defendants; and

 

(E) a Rule 16 motion for discovery.

 

(4) Notice of the Governmentís Intent to Use Evidence.

 

(A) At the Governmentís Discretion. Upon the filing of the information or citation, the government may notify the defendant of its intent to use specified evidence at trial in order to afford the defendant an opportunity to object before trial under Rule 12(b)(3)(C).

 

(B) At the Defendantís Request. Upon the filing of the information or citation, the defendant may, in order to have an opportunity to move to suppress evidence under Rule 12(b)(3)(C), request notice of the governmentís intent to use (in its evidence-in-chief at trial) any evidence that the defendant may be entitled to discover under Rule 16.

 

(c) Motion Deadline. The court may, at the arraignment or as soon afterward as practicable, set a deadline for the parties to make pretrial motions and may also schedule a motion hearing.

 

(d) Ruling on a Motion. The court must decide every pretrial motion before trial unless it finds good cause to defer a ruling. The court must not defer ruling on a pretrial motion if the deferral will adversely affect a partyís right to appeal. When factual issues are involved in deciding a motion, the court must state its essential findings on the record.

 

(e) Waiver of a Defense, Objection, or Request. A party waives any Rule 12(b)(3) defense, objection, or request not raised by the deadline the court sets under Rule 12(c) or by any extension the court provides. For good cause, the court may grant relief from the waiver.

 

(f) Recording the Proceedings. All proceedings at a motion hearing, including any findings of fact and conclusions of law made orally by the court, must be recorded by a court reporter or a suitable recording device.

 

(g) Defendantís Continued Custody or Release Status. If the court grants a motion to dismiss based on a defect in instituting the prosecution, in the information, it may order the defendant to be released or detained for a specified time until a new information is filed. This rule does not affect any statutory period of limitations.

 

Rule 13. Joint Trial of Separate Cases

 

The court may order that separate cases be tried together as though brought in a single information or citation if all offenses and all defendants could have been joined in a single information or citation.

 

Rule 14. Relief from Prejudicial Joinder

 

(a) Relief. If the joinder of offenses or defendants in an information or a consolidation for trial appears to prejudice a defendant or the government, the court may order separate trials of counts, sever the defendantsí trials, or provide any other relief that justice requires.

 

(b) Defendantís Statements. Before ruling on a defendantís motion to sever, the court may order a government prosecutor to deliver to the court any defendantís statement that the government intends to use as evidence.

 

Rule 15. Depositions

 

(a) When Taken

 

(1) In General. A party may move that a prospective witness be deposed in order to preserve testimony for trial. The court may grant the motion because of exceptional circumstances and in the interest of justice. If the court orders the deposition to be taken, it may also require the deponent to produce at the deposition any designated material that is not privileged, including any book, paper, document, record, recording, or data.

 

(2) Detained Material Witness. A witness who is detained under Rule 17(i) may request to be deposed by filing a written motion and giving notice to the parties. The court may then order that the deposition be taken and may discharge the witness after the witness has signed under oath the deposition transcript.

 

(b) Notice

 

(1) In General. A party seeking to take a deposition must give every other party reasonable written notice of the depositionís date and location. The notice must state the name and address of each deponent. If requested by a party receiving the notice, the court may, for good cause, change the depositionís date or location.

 

(2) To the Custodial Officer. A party seeking to take the deposition must also notify the officer who has custody of the defendant of the scheduled date and location.

 

(c) Defendantís Presence

 

(1) Defendant in Custody. The officer who has custody of the defendant must produce the defendant at the deposition and keep the defendant in the witnessís presence during the examination, unless the defendant:

 

(A) waives in writing the right to be present; or

 

(B) persists in disruptive conduct justifying exclusion after being warned by the court that disruptive conduct will result in the defendantís exclusion.

 

(2) Defendant Not in Custody. A defendant who is not in custody has the right upon request to be present at the deposition, subject to any conditions imposed by the court. If the government tenders the defendantís expenses as provided in Rule 15(d) but the defendant still fails to appear, the defendantóabsent good causeówaives both the right to appear and any objection to the taking and use of the deposition based on that right.

 

(d) Expenses. If the deposition was requested by the government, the court mayóor if the defendant is unable to bear the deposition expenses, the court mustóorder the government to pay:

 

(1) any reasonable travel and subsistence expenses of the defendant and the defendantís attorney to attend the deposition; and

 

(2) the costs of the deposition transcript.

 

(e) Manner of Taking. Unless these rules or a court order provides otherwise, a deposition must be taken and filed in the same manner as a deposition in a civil action, except that:

 

(1) A defendant may not be deposed without that defendantís consent.

 

(2) The scope and manner of the deposition examination and cross-examination must be the same as would be allowed during trial.

 

(3) The government must provide to the defendant or the defendantís attorney, for use at the deposition, any statement of the deponent in the governmentís possession to which the defendant would be entitled under Rule 16.

 

(f) Use as Evidence. A party may use all or part of a deposition as provided by the Rules of Evidence.

 

(g) Objections. A party objecting to deposition testimony or evidence must state the grounds for the objection during the deposition.

 

(h) Depositions by Agreement Permitted. The parties may by agreement take and use a deposition with the courtís consent.

 

Rule 16. Disclosure and Discovery.

 

(a) When. Discovery may commence upon the filing of the information or citation.

 

(b) Motions. Requests or motions for discovery must be made not later than 20 days after arraignment in the court having jurisdiction to try the offense charged. Requests must be answered within 10 days after service of the request. The court may enlarge or shorten the times herein specified.

 

(c) Disclosure by the Government

 

(1) Except as otherwise provided in these Rules as to protective orders, the government must, upon written request of defendantís counsel, disclose to defendantís counsel such part or all of the following material and information within its possession or control designated in said request:

 

(A) The names and last known addresses of persons whom the government intends to call as witnesses at any hearing or at the trial, together with their written or recorded statements, and existing memoranda, reporting or summarizing part or all of their oral statements;

 

(B) Any written or recorded statements and the substance of any oral statements made by the defendant or by a co‑defendant, a list of all witnesses to the making and a list of all witnesses to the acknowledgment of such statements, and the last known addresses of such witnesses;

 

(C) Any reports or statements of experts, made in connection with the particular case, including results of physical or mental examinations and of scientific tests, experiments, or comparisons, and a written summary of any testimony that the government intends to use under Rules 702, 703, or 705 of the Rules of Evidence during its case-in-chief at trial. The summary must describe the witnessís opinions, the bases and reasons for those opinions, and the witnessís qualifications;

 

(D) Any books, papers, documents, photographs, or objects, which the government intends to introduce into evidence at the hearing or trial or which were obtained from or belong to the defendant;

 

(E) Any record of prior criminal convictions of the defendant and any persons the government intends to call as witnesses at a hearing or the trial;

 

(F) If there has been any photographic or electronic surveillance (including wiretapping), relating to the offense with which the defendant is charged, of the defendant or of conversations to which the defendant was a party or of the defendantís premises; this disclosure must be in the form of a written statement by counsel for the government briefly setting forth the facts pertaining to the time, place, and persons making the same; and

 

(G) Any material or information, within the possession or control of the government, which tends to negate the guilt of the defendant as to the offense charged, mitigate the degree of the offense charged, or reduce the punishment.

 

(2) The request provided for by this Rule must be made by serving a copy of the request upon counsel for the government and each defendant to be tried jointly with the defendant. The original of such request must be filed in the court having jurisdiction to try the case.

 

(3) If the defense in its request designates material or information which would be discoverable under this rule if in the possession or control of the government, but which is, in fact, in the possession or control of other governmental personnel, the government must use diligence and make good faith efforts to cause such materials to be made available to the defense counsel, and if the governmentís efforts are unsuccessful and such material or other governmental personnel are subject to the jurisdiction of the court, the court, upon request, must issue suitable subpoenas or orders to cause such material or information to be made available to the government for disclosure to the defense.

 

(d) Disclosure by Government to Defendant by Court Order Requiring a Showing of Good Cause

 

(1) The defense may make a written motion in the court having jurisdiction to try said case requesting the government to disclose material and information not covered by Rule 16(c). Such motion must specify the material or information sought to be disclosed. If the court finds the request to be reasonable, the court must order the government to disclose to the defendant that material and information requested which is found by the court to be relevant and material to the defendantís case.

 

(2) The court must specify the material and information to be disclosed and the time and manner in which the government must make disclosure under this rule.

 

(3) If any material and information which the court orders the government to disclose under this rule is in the possession or control of other governmental personnel, the government must use diligence and make good faith efforts to cause such material to be made available to the defense; and if the governmentís efforts are unsuccessful and such material or other governmental personnel are subject to the jurisdiction of the court issuing such order, said court, upon request, must issue suitable subpoenas or orders to cause such material to be made available to the government for disclosure to the defense.

 

(e) Disclosure by Defendant to Government Without Court Order

 

(1) Except as otherwise provided in these Rules as to protective orders, and subject to constitutional limitations, on written request by the government, the defendant must disclose to counsel for the government such part or all of the following material or information within the defendantís possession or control designated in such request:

 

(A) Any reports or statements of experts made in connection with the particular case, including results of physical or mental examinations and of scientific tests, experiments, or comparisons, which the defense intends to introduce into evidence at a hearing or trial, and a written summary of any testimony that the defendant intends to use under Rules 702, 703, or 705 of the Rules of Evidence during the defendantís case-in-chief at trial. The summary must describe the witnessís opinions, the bases and reasons for those opinions, and the witnessís qualifications. Notwithstanding the above, those portions of any of the above containing statements made by the defendant need not be disclosed;

 

(B) The names and last known addresses of persons, other than defendant, whom defendant intends to call as witnesses at any hearing or at the trial, together with their written or recorded statements, and existing memoranda reporting or summarizing part or all of their oral statements;

 

(C) Those parts of any books, papers, documents, photographs, or objects, except such as contain statements of the defendant, which the defendant intends to introduce in evidence at a hearing or trial;

 

(D) If the defendant intends to rely on the defense of insanity at the time of the offense, disclosure of such intent must be in the form of a written statement by counsel for the defendant; and

 

(E) If the defendant intends to rely on the defense of alibi and the government in its request specifies the place, date, and time of the crime charged, disclosure must be in the form of a written statement by counsel for the defendant, announcing such intent and giving specific information as to the place at which the defendant claims to have been at the time of the alleged offense, and, as particularly as is known, the names and addresses of the witnesses by whom the defendant proposes to establish such alibi.

 

(2) The request provided for by this rule must be made by serving a copy of the request upon the defendant or the defendantís attorney, and upon each defendant or the defendantís attorney who is to be tried jointly with the defendant. The original of such request must be filed in the court having jurisdiction to try the case.

 

(f) Disclosure by Defendant to Government by Court Order Requiring a Showing of Good Cause

 

(1) Subject to constitutional limitations, the government may make a written motion in the court having jurisdiction to try the case requesting the defendant to disclose material and information not covered in Rule 16(e). Such motion must specify the material or information sought to be disclosed. If the court finds the request to be reasonable, the court must order the defendant to disclose to the government that material and information requested which is found by the court to be relevant and material to the governmentís case.

 

(2) Upon motion by the government, and subject to constitutional limitations and any other safeguards deemed appropriate by the court, and upon a showing of good cause, the court may order the defendant to:

 

(A) Appear in a lineup;

 

(B) Speak for identification;

 

(C) Be fingerprinted;

 

(D) Pose for photographs not involving re-enactment of a scene;

 

(E) Try on articles of clothing;

 

(F) Provide a sample of the defendantís handwriting;

 

(G) Submit to the taking of specimens of material from under defendantís fingernails;

 

(H) Submit to the taking of samples of the defendantís blood, hair, and other materials of the defendantís body, which involve no unreasonable intrusion thereof;

 

(I) Submit to a reasonable physical or medical inspection of the defendantís body; and

 

(J) Submit to an examination to determine the existence of insanity at the time of the offense, if the defendant gives notice under Rule 16(e)(1)(D) of intent to rely on the defense of insanity at the time of the offense. The court may, at the request of a party or on its own motion, order that defendant to submit to a competency examination to determine the defendantís mental competency to stand trail.

 

(3) If requested by any party, the court must hear evidence on the necessity of discovery requested under Rule 16(f)(2).

 

(4) In its order directing discovery under this rule, the court must make the grounds for its decision a part of the record.

 

(5) The court must specify the material and information to be disclosed and the time and manner in which the defendant must make disclosure under this rule.

 

(6) The defendant shall have the right to have counsel present during any disclosure under Rule 16(f)(2).

 

(7) Rule 16(f)(2) shall not apply to investigative procedures before the filing of an information.

 

(g) Manner of Making Disclosure. Unless otherwise ordered by the court, disclosure under Rules 16(c) through 16(f) must be:

 

(1) In a manner agreed to by the government and the defendant, or

 

(2) By the party making disclosure notifying opposing counsel that the material and information to be disclosed may be inspected, obtained, tested, copied, or photographed at a specified time and place and whether suitable facilities are available.

 

(h) Continuing Duty to Disclose. If subsequent to complying with a request for disclosure or order of court, a party discovers information that the party would have been required to disclose under the request or order, the party must furnish such additional information to opposing counsel, and if the additions are discovered during trial, the court also must be notified.

 

(i) Use of Matters Disclosed. Any information or materials obtained pursuant to these rules must be used only for the purpose of preparation and trial of the case.

 

(j) Matters Not Subject to Disclosure. The following matters shall not be subject to disclosure:

 

(1) Legal research, or records, correspondence, reports, or memoranda to the extent that they contain the opinions, theories, or conclusions of counsel for the government or members of counselís legal or investigative staff, or of the defendant, defense counsel, or members of the defendantís legal or investigative staff;

 

(2) An informantís identity where identity is a prosecution secret, a failure to disclose will not infringe the constitutional rights of the defendant, and disclosure is not essential to a fair determination of the cause. Disclosure must not be denied hereunder as to the identity of an informant to be produced at a hearing or trial; and

 

(3) Any material or information which involves a substantial risk of prejudice to national security, where a failure to disclose will not infringe the constitutional rights of the defendant, and where disclosure is not essential to a fair determination of the cause. Disclosure must not be denied hereunder as to material or information which is to be disclosed at a hearing or trial.

 

(k) Protective Orders. The court may at any time, on motion and for good cause shown, order:

 

(1) Specified disclosures be denied, regulated, restricted, or deferred, or make such other order as it deems appropriate, provided that all material to which a party is entitled must be disclosed in time to permit counsel to make beneficial use thereof;

 

(2) Non‑discoverable parts or portions contained in otherwise discoverable material or information may be excised and the balance thereof only be disclosed, and the excised parts or portions must be sealed, impounded, or preserved in the records of the court, to be made available to a reviewing court in the event of an appeal; and

 

(3) At any proceeding for showing cause for denial, regulation, restriction or deferment of disclosure, or any portions thereof, that such be made in camera, with a record made of such proceeding and the entire record of such in camera proceeding must be sealed, impounded, and preserved in the records of the court, to be made available to a reviewing court in the event of an appeal.

 

(l) Sanctions. If at any time during the course of the proceeding it is brought to the attention of the court that a party has failed to comply with an applicable discovery rule or an order issued pursuant thereto, the court may order such party to make disclosure of material and information not previously disclosed, grant a continuance, exclude such evidence, or enter such other orders as it deems just under the circumstances. Willful violation by counsel of an applicable discovery rule or an order issued pursuant thereto may subject counsel to appropriate sanctions by the court.

 

Rule 17. Subpoena

 

(a) Content. A subpoena must state the courtís name and the title of the proceeding, include the seal of the court, and command the witness to attend and testify at the time and place the subpoena specifies.

 

(b) Defendant Unable to Pay. Upon a defendantís ex parte application, the court must order that a subpoena be issued for a named witness if the defendant shows an inability to pay the witnessís fees and the necessity of the witnessís presence for an adequate defense. If the court orders a subpoena to be issued, the process costs and witness fees will be paid in the same manner as those paid for witnesses the government subpoenas.

 

(c) Producing Documents and Objects

 

(1) In General. A subpoena may order the witness to produce any books, papers, documents, data, or other objects the subpoena designates. The court may direct the witness to produce the designated items in court before trial or before they are to be offered in evidence. When the items arrive, the court may permit the parties and their attorneys to inspect all or part of them.

 

(2) Quashing or Modifying the Subpoena. On motion made promptly, the court may quash or modify the subpoena if compliance would be unreasonable or oppressive.

 

(d) Service. A police officer or any nonparty who is at least 18 years old may serve a subpoena. The server must deliver a copy of the subpoena to the witness and must tender to the witness one dayís witness-attendance fee and the legal mileage allowance. The server need not tender the attendance fee or mileage allowance when the Republic, a government officer, or a government agency has requested the subpoena. Service may be made either (i) by delivering a copy of the subpoena to the witness and orally explaining the substance thereof to him in a language generally understood in the locality and, if practicable, in one understood by the person named, or (ii) by leaving it at his dwelling house or usual place of abode or of employment with some person of suitable age and discretion residing or employed therein, and orally explaining the substance thereof as above provided. At or before the time stated for appearance in a subpoena, the person who served the subpoena must sign a report of his actions thereon and have it delivered to the court that issued the subpoena. His report must show the date, place, and method of service.

 

(e) Place of Service

 

(1) In the Republic. A subpoena requiring a witness to attend a hearing or trial may be served at any place within the Republic.

 

(2) In a Foreign Country. If the witness is in a foreign country, the subpoena may be served where authorized by law, treaty, or government agreement, in such manner as the court may authorize or direct.

 

(f) Issuing a Deposition Subpoena

 

(1) Issuance. A court order to take a deposition authorizes the clerk to issue a subpoena for any witness named or described in the order.

 

(2) Place. After considering the convenience of the witness and the parties, the court may orderóand the subpoena may requireóthe witness to appear anywhere the court designates.

 

(3) Oral Orders by Community Courts. A Community Court judge may, if the judge deems the public interest so requires, issue an oral order in place of a written subpoena which will have the same force and effect within the territorial jurisdiction of that court as a subpoena. Such order may be served by orally communicating the substance thereof to the person subpoenaed. Report of service of such an order may be made orally.

 

(g) Contempt. The court may hold in contempt a witness who, without adequate excuse, disobeys a subpoena, or oral order in place of one, issued by a judge.

 

(h) Attendance of Child as Witness. When the testimony of a child under 14 years of age is desired, the parent or guardian may be subpoenaed to bring the child to attend as a witness.

 

(i) Detention and release of witness.

 

(1) Whenever the court has reason to believe that a witness may be intimidated or become unavailable at the trial, the witness may be detained as a material witness; provided, that no such person shall be detained for a period of more than 10 days without a further order being made. A report of such detention shall be made forthwith in the manner provided for the transmission of the record.

 

(2) A person detained as a material witness shall be entitled to be released as a matter of right upon giving bail for appearance as witness in an amount fixed by the court ordering the detention or any higher court. The court ordering the detention, or any higher court, may order the witness's release without bail if the witness has been detained for an unreasonable length of time and may modify at any time the requirement as to bail.

 

Rule 17.1. Pretrial Conference

 

On its own, or on a partyís motion, the court may hold one or more pretrial conferences to promote a fair and expeditious trial. When a conference ends, the court must prepare and file a memorandum of any matters agreed to during the conference. The government may not use any statement made during the conference by the defendant or the defendantís attorney unless it is in writing and is signed by the defendant and the defendantís attorney.

 

TITLE V. RESERVED

 

Rule 18. Reserved

 

Rule 19. Reserved

 

Rule 20. Reserved

 

Rule 21. Reserved

 

Rule 22. Reserved

 

TITLE VI. TRIAL

 

Rule 23. Jury or Non-jury Trial

 

(a) Jury Trial. If the defendant is entitled to a jury trial, the trial must be by jury unless the defendant waives a jury trial in open court or in writing and the court approves.

 

(b) Jury Size. A jury consists of 4 persons unless otherwise provided by law.

 

(c) Non-jury Trial. In a case tried without a jury, the court must find the defendant guilty, not guilty, guilty of a lesser included offense (naming the lesser offense), or that the charge is merged in that of a more serious charge in which it is necessarily included. A lesser included offense is as defined in Rule 31(c). If before the finding a party requests, the court must state its specific findings of fact in open court or in a written decision or opinion.

 

Rule 24. Trial Jurors

 

(a) Examination

 

(1) In General. The court may examine prospective jurors or may permit the attorneys for the parties to do so.

 

(2) Court Examination. If the court examines the jurors, it must permit the attorneys for the parties to:

 

(A) ask further questions that the court considers proper; or

 

(B) submit further questions that the court may ask if it considers them proper.

 

(b) Alternate Jurors.

 

(1) In General. The court may impanel 5 or 6 prospective jurors to allow for 1 or 2 alternate jurors to replace any jurors who are unable to perform or who are disqualified from performing their duties.

 

(2) Procedure.

 

(A) The fifth and sixth prospective jurors must have the same qualifications and be selected and sworn in the same manner as any other juror.

 

(B) Alternate jurors shall be chosen by lot by the Clerk of the Court at the end of the trial and shall replace jurors in the same sequence in which they were selected. An alternate juror who replaces a juror has the same authority as the other jurors.

 

(3) Retaining Alternate Jurors. The court may retain alternate jurors after the jury retires to deliberate. The court must ensure that a retained alternate does not discuss the case with anyone until that alternate replaces a juror or is discharged. If an alternate replaces a juror after deliberations have begun, the court must instruct the jury to begin its deliberations anew.

 

(c) Peremptory Challenges. Each side is entitled to two peremptory challenges to prospective jurors. The court may allow additional peremptory challenges to multiple defendants, and may allow the defendants to exercise those challenges separately or jointly.

 

Rule 25. Judgeís Disability

 

(a) During Trial. Any judge regularly sitting in or assigned to the court may complete a jury trial if:

 

(1) the judge before whom the trial began cannot proceed because of death, sickness, or other disability; and

 

(2) the judge completing the trial certifies familiarity with the trial record.

 

(b) After a Verdict or Finding of Guilty

 

(1) In General. After a verdict or finding of guilty, any judge regularly sitting in or assigned to a court may complete the courtís duties if the judge who presided at trial cannot perform those duties because of absence, death, sickness, or other disability.

 

(2) Granting a New Trial. The successor judge may grant a new trial if satisfied that:

 

(A) a judge other than the one who presided at the trial cannot perform the post-trial duties; or

 

(B) a new trial is necessary for some other reason.

 

Rule 26. Taking Testimony

 

In every trial the testimony of witnesses must be taken in open court, unless otherwise provided by a statute or, upon good cause, by court order (e.g., the testimony of a child victim of sexual abuse maybe take other than in open court where the court finds it is necessary to protect the welfare of the particular child, the child witness would be traumatized, not by the courtroom generally but, by the presence of the defendant, and the emotional distress suffered by the child witness in the presence of the defendant is more than de minimis).

 

Rule 26.1. Foreign Law Determination

 

A party intending to raise an issue of foreign law must provide the court and all parties with reasonable written notice. Issues of foreign law are questions of law, but in deciding such issues a court may consider any relevant material or sourceóincluding testimonyówithout regard to the Rules of Evidence.

 

Rule 26.2. Reserved

 

Rule 26.3. Mistrial

 

Before ordering a mistrial, the court must give each defendant and the government an opportunity to comment on the propriety of the order, to state whether that party consents or objects, and to suggest alternatives.

 

Rule 27. Proving an Official Record

 

A party may prove an official record, an entry in such a record, or the lack of a record or entry in the same manner as in a civil action.

 

Rule 28. Interpreters

 

The court may select, appoint, and set the reasonable compensation for an interpreter. If the defendant requires an interpreter for other than Marshallese to English or English to Marshallese translation, the court may require the defendant to bear the costs of compensating the interpreter. If the defendant cannot afford to pay these costs, the court may require the government to pay the interpreterís compensation.

 

Rule 29. Motion for a Judgment of Acquittal

 

(a) At the Close of the Governmentís Case. After the government closes its evidence or after the close of all the evidence, the court on the defendantís motion must enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction. The court may on its own consider whether the evidence is insufficient to sustain a conviction. If the court denies a motion for a judgment of acquittal at the close of the governmentís evidence, the defendant may offer evidence without having reserved the right to do so.

 

(b) Reserving Decision. The court may reserve decision on the motion, proceed with the trial (where the motion is made before the close of all the evidence), submit the case to the jury, and decide the motion either before the jury returns a verdict or after it returns a verdict of guilty or is discharged without having returned a verdict. If the court reserves decision, it must decide the motion on the basis of the evidence at the time the ruling was reserved.

 

(c) After Jury Verdict or Discharge

 

(1) Time for a Motion. A defendant may move for a judgment of acquittal, or renew such a motion, within 7 days after a guilty verdict or after the court discharges the jury, whichever is later, or within any other time the court sets during the 7-day period.

 

(2) Ruling on the Motion. If the jury has returned a guilty verdict, the court may set aside the verdict and enter an acquittal. If the jury has failed to return a verdict, the court may enter a judgment of acquittal.

 

(3) No Prior Motion Required. A defendant is not required to move for a judgment of acquittal before the court submits the case to the jury as a prerequisite for making such a motion after jury discharge.

 

(d) Conditional Ruling on a Motion for a New Trial

 

(1) Motion for a New Trial. If the court enters a judgment of acquittal after a guilty verdict, the court must also conditionally determine whether any motion for a new trial should be granted if the judgment of acquittal is later vacated or reversed. The court must specify the reasons for that determination.

 

(2) Finality. The courtís order conditionally granting a motion for a new trial does not affect the finality of the judgment of acquittal.

 

(3) Appeal.

 

(A) Grant of a Motion for a New Trial. If the court conditionally grants a motion for a new trial and an appellate court later reverses the judgment of acquittal, the trial court must proceed with the new trial unless the appellate court orders otherwise.

 

(B) Denial of a Motion for a New Trial. If the court conditionally denies a motion for a new trial, an appellee may assert that the denial was erroneous. If the appellate court later reverses the judgment of acquittal, the trial court must proceed as the appellate court directs.

 

Rule 29.1. Trial Procedure Rule

 

The following is the usual trial procedure, which may be modified by the court to fit the circumstances of a particular case.

 

(a) Opening Statements. Prior to the presentation of evidence, the prosecution may make an opening statement. The defendant make may an opening statement after that given by the prosecution, unless defendant elects to make an opening statement after the conclusion of the prosecutionís case and before presenting evidence. The opening statement may not be used to argue law, but may identify what the prosecution or the defendant expects the evidence to be or how that evidence will prove the case. Counsel must refrain from making remarks that cannot be proven, but may state fully the matters counsel expects to prove by admissible evidence. Although counsel may argue as forcefully and ably as counselís abilities permit, counsel may not inflame the passions of the jury or appeal to jury prejudice.

 

(b) Calling Witnesses. After making any such statement, the prosecution will call its witnesses in such order as to permit the facts to be presented to the court in as clear and logical a sequence as possible.

 

(c) Administering Oath

 

(1) An oath of affirmation must be administered by the presiding judge or the clerk or assistant clerk of court to each witness before the witness testifies.

 

(2) Any procedure which appeals to the conscience of the person to whom the oath or affirmation is administered and which binds the person to speak the truth or to perform the personís duties truthfully is sufficient.

 

(3) Persons who have peculiar forms which they recognize as obligatory and believers in other than the Christian religion may be sworn in their own manner, or in accordance to the peculiar ceremonies of the religion which they profess and declare to be binding.

 

(d) Direct Examination. Each witness called on behalf of the prosecution will first be examined by the prosecutor..

 

(e) Cross‑Examination. After each witness has given evidence, the defendant or defendantís counsel may cross‑examine the witness upon any matters relevant to the case and the credibility of the witness.

 

(f) Re‑direct Examination. The prosecution may re‑examine any of its witnesses upon any matter appearing in the cross‑examination or, with the courtís consent, upon any other matter.

 

(g) Prosecution Closes. After all of the witnesses for the prosecution have been called and examined, the case for the prosecution will be deemed closed.

 

(h) Consideration of Prosecutionís Evidence. After the close of the case for the prosecution, the court will pursuant to Rule 29(a) consider whether the evidence introduced by the prosecution is sufficient to support the charge.

 

(i) The Defense

 

(1) After the consideration of the prosecutionís evidence and any action taken thereon as provided in paragraph (h) above, the court will call upon the defendant or defendantís counsel to present defendantís defense in respect to the charges against the defendant.

 

(2) The defendant may make an opening statement, if the defendant has not done so earlier. The defendant may also call and examine any witnesses for the defense in the same manner as is provided for the prosecution above. These witnesses are subject to cross‑examination by the prosecution in the same manner as is provided for the defense above.

 

(j) Defense Closes. After all the witnesses have been called and examined, the case for the defense will be deemed closed.

 

(k) Rebuttal. With leave of the court, the prosecution may call or re‑call any witness for the purpose of rebutting any material statement made by a witness for the defense, or for the purpose of giving testimony on any new matter raised by the defense. Similarly, with leave of court, the defendant may be permitted to call or re‑call any witness for the purpose of rebutting any material statement made by a rebuttal witness for the prosecution, or for the purpose of giving testimony on any new matter raised during the rebuttal. Such leave to call or re‑call witnesses in rebuttal should be freely granted whenever a new matter of substantial consequence has been introduced by the opposing party. The court should take care to see that each party has an actual opportunity to present all the material and admissible evidence available to the party.

 

(l) Summation. After all the witnesses have testified, the prosecution and the defense may make closing arguments and summations. The prosecution must sum up first, and the defense second. The prosecution is allowed a rebuttal argument. Only one statement may be made on behalf of each defendant. Closing arguments may sum up the facts of the case, review reasonable inferences deducible from the evidence, deal with any matters of law that require argument, respond to opposing counsel, and plead for mercy or justice. Counsel may not express personal opinions as to the credibility of a witness or the weight of the evidence. Counsel may not argue facts not admitted into evidence. Counsel may not inflame the passions of the jury or appeal to their prejudice against the defendant. During closing argument, the prosecution may not comment on the defendantís failure to testify, unless the defense raises the issue of the defendantís silence, then the prosecution, during rebuttal, may comment on the defendantís silence. The prosecution may comment on the strength of the governmentís case and point out that its evidence was not contradicted.

 

(m) Examination of Witnesses by the Court. The court may at any stage of the trial question any witnesses and may call or re‑call any witnesses at any time before finding, if it considers it necessary in the interests of justice.

 

Rule 30. Jury Instructions

 

(a) In General. Any party may request in writing that the court instruct the jury on the law as specified in the request. The request must be made at the close of the evidence or at any earlier time that the court reasonably sets. When the request is made, the requesting party must furnish a copy to every other party.

 

(b) Ruling on a Request. The court must inform the parties before closing arguments how it intends to rule on the requested instructions.

 

(c) Time for Giving Instructions. The court may instruct the jury before or after the arguments are completed, or at both times.

 

(d) Objections to Instructions. A party who objects to any portion of the instructions or to a failure to give a requested instruction must inform the court of the specific objection and the grounds for the objection before the jury retires to deliberate. An opportunity must be given to object out of the juryís hearing and, on request, out of the juryís presence. Failure to object in accordance with this rule precludes appellate review, except as permitted under Rule 52(b).

 

Rule 31. Jury Verdict

 

(a) Return. The jury must return its verdict to a judge in open court. The verdict must be unanimous.

 

(b) Partial Verdicts, Mistrial, and Retrial.

 

(1) Multiple Defendants. If there are multiple defendants, the jury may return a verdict at any time during its deliberations as to any defendant about whom it has agreed.

 

(2) Multiple Counts. If the jury cannot agree on all counts as to any defendant, the jury may return a verdict on those counts on which it has agreed.

 

(3) Mistrial and Retrial. If the jury cannot agree on a verdict on one or more counts, the court may declare a mistrial on those counts. The government may retry any defendant on any count on which the jury could not agree.

 

(c) Lesser Offense or Attempt. A defendant may be found guilty of any of the following:

 

(1) an offense necessarily included in the offense charged;

 

(2) an attempt to commit the offense charged; or

 

(3) an attempt to commit an offense necessarily included in the offense charged, if the attempt is an offense in its own right.

 

(d) Jury Poll. After a verdict is returned but before the jury is discharged, the court must on a partyís request, or may on its own, poll the jurors individually. If the poll reveals a lack of unanimity, the court may direct the jury to deliberate further or may declare a mistrial and discharge the jury.

 

TITLE VII. POST-CONVICTION PROCEDURES

 

Rule 32. Sentencing and Judgment

 

(a) Definitions. The following definitions apply under this rule:

 

(1) ďCrime of violence or sexual abuseĒ means:

 

(A) a crime that involves the use, attempted use, or threatened use of physical force against anotherís person or property; and

 

(B) a crime under Sections 113-116, 131-135, 145, and 152 of the Criminal Code, 31 MIRC Chp. 1, and any amendments or replacements thereof.

 

(2) ďVictimĒ means an individual against whom the defendant committed an offense for which the court will impose sentence.

 

(b) Time of Sentencing

 

(1) In General. The court must impose sentence without unnecessary delay.

 

(2) Reserved.

 

(c) Reserved

 

(d) Reserved

 

(e) Reserved

 

(f) Reserved

 

(g) Reserved

 

(h) Reserved

 

(i) Sentencing

 

(1) Reserved.

 

(2) Introducing Evidence; Producing a Statement. The court may permit the parties to introduce evidence on the sentencing of the defendant.

 

(3) Reserved.

 

(4) Opportunity to Speak.

 

(A) By a Party. Before imposing sentence, the court must:

 

(i) provide the defendantís attorney an opportunity to speak on the defendantís behalf;

 

(ii) address the defendant personally in order to permit the defendant to speak or present any information to mitigate the sentence; and

 

(iii) provide a government prosecutor an opportunity to speak equivalent to that of the defendantís attorney.

 

(B) By a Victim. Before imposing sentence, the court must address any victim of a crime of violence or sexual abuse who is present at sentencing and must permit the victim to speak or submit any information about the sentence. Whether or not the victim is present, a victimís right to address the court may be exercised by the following persons if present:

 

(i) a parent, legal guardian, or other principle care-giver, if the victim is younger than 18 years or is incompetent; or

 

(ii) one or more family members or relatives the court designates, if the victim is deceased, incapacitated, or requests that another family member speak on the victimís behalf.

 

(C) In Camera Proceedings. Upon a partyís motion and for good cause, the court may hear in camera any statement made under Rule 32(i)(4).

 

(j) Defendantís Right to Appeal

 

(1) Advice of a Right to Appeal.

 

(A) Appealing a Conviction. If the defendant pleaded not guilty and was convicted, after sentencing the court must advise the defendant of the right to appeal the conviction.

 

(B) Appealing a Sentence. After sentencingóregardless of the defendantís pleaóthe court must advise the defendant of any right to appeal the sentence.

 

(C) Appeal Costs. The court must advise a defendant who is unable to pay appeal costs of the right to ask for permission to appeal in forma pauperis.

 

(D) Failure to Give Notice. The courtís failure to give the defendant notice of the right to appeal does not affect the time to appeal, or relieveóor authorize the court to relieveóa partyís failure to appeal within the allowed time.

 

(2) Reserved.

 

(k) Judgment. In the judgment of conviction, the court must set forth the plea, the jury verdict or the courtís findings, the adjudication, and the sentence. If the defendant is found not guilty or is otherwise entitled to be discharged, the court must so order. The judge must sign the judgment, and the clerk must enter it.

 

Rule 32.1. Revoking or Modifying Probation or Supervised Release

 

(a) Initial Appearance.

 

(1) Person in Custody. A person held in custody for violating probation or supervised release must be taken without unnecessary delay before a judge.

 

(2) Upon a Summons. When a person appears in response to a summons for violating probation or supervised release, a judge must proceed under this rule.

 

(3) Advice. The judge must inform the person of the following:

 

(A) the alleged violation of probation or supervised release;

 

(B) the personís right to retain counsel or to request that counsel be appointed if the person cannot obtain counsel; and

 

(C) the personís right, if held in custody, to a preliminary hearing under Rule 32.1(b)(1).

 

(4) Release or Detention. The judge must order that the person be detained, unless the judge finds by clear and convincing evidence that the person is not likely to flee or pose a danger to the safety of any other person or the community if released pending further proceedings. The burden of establishing that the person will not flee or pose a danger to any other person or to the community rests with the person.

 

(b) Revocation.

 

(1) Preliminary Hearing.

 

(A) In General. If a person is in custody for violating a condition of probation or supervised release, a judge must promptly conduct a hearing to determine whether there is good cause to believe that a violation occurred. The person may waive the hearing.

 

(B) Requirements. The hearing must be recorded by a court reporter or by a suitable recording device. The judge must give the person:

 

(i) notice of the hearing and its purpose, the alleged violation, and the personís right to retain counsel or to request that counsel be appointed if the person cannot obtain counsel;

 

(ii) an opportunity to appear at the hearing and present evidence; and

 

(iii) upon request, an opportunity to question any adverse witness, unless the judge determines that the interest of justice does not require the witness to appear.

 

(C) Referral. If the judge finds good cause, the judge must conduct a revocation hearing. If the judge does not find good cause, the judge must dismiss the proceeding.

 

(2) Revocation Hearing. Unless waived by the person, the court must hold the revocation hearing within a reasonable time. The person is entitled to:

 

(A) written notice of the alleged violation;

 

(B) disclosure of the evidence against the person;

 

(C) an opportunity to appear, present evidence, and question any adverse witness unless the court determines that the interest of justice does not require the witness to appear; and

 

(D) notice of the personís right to retain counsel or to request that counsel be appointed if the person cannot obtain counsel.

 

(c) Modification

 

(1) In General. Before modifying the conditions of probation or supervised release, the court must hold a hearing, at which the person has the right to counsel.

 

(2) Exceptions. A hearing is not required if:

 

(A) the person waives the hearing; or

 

(B) the relief sought is favorable to the person and does not extend the term of probation or of supervised release; and

 

(C) a government prosecutor has received notice of the relief sought, has had a reasonable opportunity to object, and has not done so.

 

(d) Disposition of the Case. The courtís disposition of the case is governed by Part XXIX of the Criminal Code, 31 MIRC Secís 181-192.

 

Rule 32.2. Seized Property

 

(a) Retention. Any property seized in connection with an alleged offense (unless the property is perishable) must be retained pending trial in accordance with the orders of the court. Such property must be produced in court, if practicable. If the property is perishable, the court may order that it be sold and the proceeds held until the disposition of the case.

 

(b) Disposition. At the termination of the trial the court may order that the property, or the funds resulting from the sale of the property, be restored to the owner or may make such other proper order as may be required that shall be incorporated in the record of the case.

 

Rule 33. New Trial

 

(a) Defendantís Motion. Upon the defendantís motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires. If the case was tried without a jury, the court may take additional testimony and enter a new judgment.

 

(b) Time to File.

 

(1) Newly Discovered Evidence. Any motion for a new trial grounded on newly discovered evidence must be filed within one year after the verdict or finding of guilty. If an appeal is pending, the court may not grant a motion for a new trial until the appellate court remands the case.

 

(2) Other Grounds. Any motion for a new trial grounded on any reason other than newly discovered evidence must be filed within 7 days after the verdict or finding of guilty, or within such further time as the court sets during the 7-day period.

 

Rule 34. Arresting Judgment

 

(a) In General. Upon the defendantís motion or on its own, the court must arrest judgment if:

 

(1) the statement of charges does not charge an offense; or

 

(2) the court does not have jurisdiction of the charged offense.

 

(b) Time to File. The defendant must move to arrest judgment within 7 days after the court accepts a verdict or finding of guilty, makes a finding of guilty, or after a plea of guilty or nolo contendere, or within such further time as the court sets during the 7-day period.

 

Rule 35. Correcting or Reducing a Sentence

 

(a) Correcting Clear Error. Within 7 days after sentencing, the court may correct a sentence that resulted from arithmetical, technical, or other clear error.

 

(b) Reducing a Sentence for Substantial Assistance.

 

(1) In General. Upon the governmentís motion made within one year of sentencing, the court may reduce a sentence if:

 

(A) the defendant, after sentencing, provided substantial assistance in investigating or prosecuting another person; and

 

(B) reducing the sentence accords with any applicable sentencing guidelines and policy statements.

 

(2) Later Motion. Upon the governmentís motion made more than one year after sentencing, the court may reduce a sentence if the defendantís substantial assistance involved:

 

(A) information not known to the defendant until one year or more after sentencing;

 

(B) information provided by the defendant to the government within one year of sentencing, but which did not become useful to the government until more than one year after sentencing; or

 

(C) information the usefulness of which could not reasonably have been anticipated by the defendant until more than one year after sentencing and which was promptly provided to the government after its usefulness was reasonably apparent to the defendant.

 

(3) Evaluating Substantial Assistance. In evaluating whether the defendant has provided substantial assistance, the court may consider the defendantís pre-sentence assistance.

 

Rule 36. Clerical Error

 

After giving any notice it considers appropriate, the court may at any time correct a clerical error in a judgment, order, or other part of the record, or correct an error in the record arising from oversight or omission.

 

Rule 37. Reserved

 

Rule 38. Staying a Sentence or a Disability

 

(a) Reserved

 

(b) Imprisonment

 

(1) Stay Granted. If the defendant is released pending appeal, the court must stay a sentence of imprisonment.

 

(2) Stay Denied; Place of Confinement. If the defendant is not released pending appeal, the court may recommend to the Attorney-General that the defendant be confined near the place of the trial or appeal for a period reasonably necessary to permit the defendant to assist in preparing the appeal.

 

(c) Fine. If the defendant appeals, the court may stay a sentence to pay a fine or a fine and costs. The court may stay the sentence on any terms considered appropriate and may require the defendant to:

 

(1) deposit all or part of the fine and costs into the courtís registry pending appeal;

 

(2) post a bond to pay the fine and costs; or

 

(3) submit to an examination concerning the defendantís assets and, if appropriate, order the defendant to refrain from dissipating assets.

 

(d) Probation. If the defendant appeals, the court may stay a sentence of probation. The court must set the terms of any stay.

 

(e) Restitution and Notice to Victims

 

(1) In General. If the defendant appeals, the court may stayóon any terms considered appropriateóany sentence providing for restitution.

 

(2) Ensuring Compliance. The court may issue any order reasonably necessary to ensure compliance with a restitution order or a notice order after disposition of an appeal, including:

 

(A) a restraining order;

 

(B) an injunction;

 

(C) an order requiring the defendant to deposit all or part of any monetary restitution into the courtís registry; or

 

(D) an order requiring the defendant to post a bond.

 

(f) Disability. If the defendantís conviction or sentence creates a civil or employment disability, the court may stay the disability pending appeal on any terms considered appropriate. The court may issue any order reasonably necessary to protect the interest represented by the disability pending appeal, including a restraining order or an injunction.

 

Rule 39. Reserved

 

TITLE VIII. SUPPLEMENTARY AND SPECIAL PROCEEDINGS

 

Rule 40. Reserved

 

Rule 41. Search and Seizure

 

(a) Scope and Definitions

 

(1) Scope. This rule does not modify any statute regulating search or seizure, or the issuance and execution of a search warrant in special circumstances.

 

(2) Definitions. The following definitions apply under this rule:

 

(A) ďPropertyĒ includes documents, books, papers, any other tangible objects, and information.

 

(B) ďDaytimeĒ means the hours between 6:00 a.m. and 10:00 p.m. according to local time.

 

(b) Authority to Issue a Warrant. At the request of a police officer or a government prosecutor, a High Court or District Court judge has authority to issue a warrant to search for and seize a person or property within the Republic and a Community Court judge has authority to issue a warrant to search for and seize a person or property within the judgeís territorial jurisdiction. Application for a warrant shall ordinarily be made to a judge of the District Court or a Community Court.

 

(c) Persons or Property Subject to Search or Seizure. A warrant may be issued for any of the following:

 

(1) evidence of a crime;

 

(2) contraband, fruits of crime, or other items illegally possessed;

 

(3) property designed for use, intended for use, or used in committing a crime; or

 

(4) a person to be arrested or a person who is unlawfully restrained.

 

(d) Obtaining a Warrant

 

(1) Probable Cause. After receiving an affidavit or other information, a judge must issue the warrant if there is probable cause to search for and seize a person or property under Rule 41(c).

 

(2) Requesting a Warrant in the Presence of a Judge.

 

(A) Warrant on an Affidavit. When a police officer or a government prosecutor presents an affidavit in support of a warrant, the judge may require the affiant to appear personally and may examine under oath the affiant and any witness the affiant produces.

 

(B) Warrant on Sworn Testimony. The judge may wholly or partially dispense with a written affidavit and base a warrant on sworn testimony if doing so is reasonable under the circumstances.

 

(C) Recording Testimony. Testimony taken in support of a warrant must be recorded by a court reporter or by a suitable recording device, and the judge must file the transcript or recording with the clerk, along with any affidavit.

 

(3) Requesting a Warrant by Telephonic or Other Means.

 

(A) In General. A judge may issue a warrant based on information communicated by telephone or other appropriate means, including facsimile transmission.

 

(B) Recording Testimony. Upon learning that an applicant is requesting a warrant, a judge must:

 

(i) place under oath the applicant and any person on whose testimony the application is based; and

 

(ii) make a verbatim record of the conversation with a suitable recording device, if available, or by a court reporter, or in writing.

 

(C) Certifying Testimony. The judge must have any recording or court reporterís notes transcribed, certify the transcriptionís accuracy, and file a copy of the record and the transcription with the clerk. Any written verbatim record must be signed by the judge and filed with the clerk.

 

(D) Suppression Limited. Absent a finding of bad faith, evidence obtained from a warrant issued under Rule 41(d)(3)(A) is not subject to suppression on the ground that issuing the warrant in that manner was unreasonable under the circumstances.

 

(e) Issuing the Warrant

 

(1) In General. The judge must issue the warrant to a police officer authorized to execute it.

 

(2) Contents of the Warrant. The warrant must identify the person or property to be searched, identify any person or property to be seized, and designate the judge to whom it must be returned. The warrant must command the officer to:

 

(A) execute the warrant within a specified time no longer than 10 days, plus whatever time the judge determines will be reasonably required for the officer to travel to the point where the search is to be made and to return such warrant to the appropriate judge;

 

(B) execute the warrant during the daytime, unless the judge for good cause, and after hearing statements under oath in support of a non‑daytime search, expressly authorizes execution at another time; and

 

(C) return the warrant to the judge designated in the warrant.

 

(3) Warrant by Telephonic or Other Means. If a judge decides to proceed under Rule 41(d)(3)(A), the following additional procedures apply:

 

(A) Preparing a Proposed Duplicate Original Warrant. The applicant must prepare a ďproposed duplicate original warrantĒ and must read or otherwise transmit the contents of that document verbatim to the judge.

 

(B) Preparing an Original Warrant. The judge must enter the contents of the proposed duplicate original warrant into an original warrant.

 

(C) Modifications. The judge may direct the applicant to modify the proposed duplicate original warrant. In that case, the judge must also modify the original warrant.

 

(D) Signing the Original Warrant and the Duplicate Original Warrant. Upon determining to issue the warrant, the judge must immediately sign the original warrant, enter on its face the exact time it is issued, and direct the applicant to sign the judgeís name on the duplicate original warrant.

 

(f) Executing and Returning the Warrant

 

(1) Noting the Time. The officer executing the warrant must enter on its face the exact date and time it is executed.

 

(2) Inventory. An officer present during the execution of the warrant must prepare and verify an inventory of any property seized. The officer must do so in the presence of another officer and the person from whom, or from whose premises, the property was taken. If either one is not present, the officer must prepare and verify the inventory in the presence of at least one other credible person.

 

(3) Receipt. The officer executing the warrant must:

 

(A) give a copy of the warrant and a receipt for the property taken to the person from whom, or from whose premises, the property was taken; or

 

(B) leave a copy of the warrant and receipt at the place where the officer took the property.

 

(4) Return. The officer executing the warrant must promptly return itótogether with a copy of the inventoryóto the judge designated on the warrant. The judge must, on request, give a copy of the inventory to the person from whom, or from whose premises, the property was taken and to the applicant for the warrant. The officer must verify the inventory with a statement signed and sworn to by him to the effect that the inventory is a true account of all property taken by him under the warrant.

 

(g) Motion to Return Property. A person aggrieved by an unlawful search and seizure of property or by the deprivation of property may move in court for the propertyís return. The court must receive evidence on any factual issue necessary to decide the motion. If it grants the motion, the court must return the property to the movant, but may impose reasonable conditions to protect access to the property and its use in later proceedings.

 

(h) Motion to Suppress. A defendant may move to suppress evidence in the court where the trial will occur, as Rule 12 provides.

 

(i) Forwarding Papers to the Clerk. The judge to whom the warrant is returned must attach to the warrant a copy of the return, of the inventory, and of all other related papers and must deliver them to the clerk.

 

(j) Confidentiality of Warrant Information. The record of proceedings regarding the issuance of a search warrant, including affidavits, recordings, and transcripts, must be kept sealed until the warrant is executed. However, the court may order prior release of these documents.

 

(k) Oral order in lieu of search warrant.

 

(1) A Community Court or any judge thereof may, if the public interest so requires, issue an oral order in place of a search warrant. Such oral order shall have the same force and effect within the territorial jurisdiction of that court as a search warrant and must be returnable before the issuing court or judge.

 

(2) An oral order in place of a search warrant may be orally communicated to the person from whom or from whose premises the property is taken, and no inventory shall be required in such case, but the property seized must be brought promptly before the court or judge issuing the order, and the policeman executing it may orally report his actions thereon.

 

(3) The court or judge must, upon request, allow the applicant for the order and the person from whom or from whose premises the property was taken to view the property taken, and must report all actions in the matter to the clerk of courts as soon as possible.

 

(4) If the grounds on which the order was issued are controverted, the court or judge must proceed to take testimony orally. Such testimony need not be reduced to writing.

 

(l) Entering building or ship to execute search warrant. If a building or ship or any part thereof is designated as the place to be searched, the police officer executing the warrant or oral order in place of a warrant may enter without demanding permission if the officers finds the building or ship open. If the building or ship is closed, the officer shall first demand entrance in a loud voice and state that the officer desires to execute a search warrant or an oral order in place thereof as the case may be. If the doors, gates, or other bars to the entrance are not immediately opened, the officer may force an entrance, by breaking them if necessary. Having entered, the officer may demand that any other part of the building or ship, or any closet, or other closed space within the place designated in the search warrant in which the officer has reason to believe the property is concealed, be opened for his inspection, and, if refused, the officer may break them. Whenever practicable these demands and statements shall be made in a language generally understood in the locality. Notwithstanding the above, a court for good cause, and after hearing statements under oath in support of an unannounced entrance, may authorize execution of the warrant without an announced entrance. Good cause exists when announcing entrance would (1) create a danger to the police officersí safety, (2) allow suspects to escape, (3) likely result in the destruction of evidence sought to be seized, or (4) result in some other consequence improperly frustrating legitimate law enforcement efforts

 

Rule 42. Criminal Contempt

 

Subject to the provisions of Part VIII of the Judiciary Act 1983, 27 MIRC Secís 256-259, criminal contempt may be prosecuted as provided for in this rule.

 

(a) Disposition After Notice. Any person who commits criminal contempt may be punished for that contempt after prosecution on notice.

 

(1) Notice. The court must give the person notice in open court, in an order to show cause, or in an arrest order. The notice must:

 

(A) state the time and place of the trial;

 

(B) allow the defendant a reasonable time to prepare a defense; and

 

(C) state the essential facts constituting the charged criminal contempt and describe it as such.

 

(2) Appointing a Prosecutor. The court must request that the contempt be prosecuted by a government prosecutor, unless the interest of justice requires the appointment of another attorney. If the government declines the request, the court must appoint another attorney to prosecute the contempt.

 

(3) Counsel. The defendant in a criminal contempt proceeding is entitled to have the assistance of counsel and to introduce evidence either in defense or in explanation and mitigation of the penalty to be imposed.

 

(4) Bail. The defendant in a criminal contempt proceeding is entitled to be admitted to bail.

 

(5) Trial and Disposition. A person being prosecuted for criminal contempt must be released or detained as Rule 46 provides. If the criminal contempt involves disrespect toward or criticism of a judge, that judge is disqualified from presiding at the contempt trial or hearing unless the defendant consents. Upon a finding or verdict of guilty, the court must impose the punishment.

 

(b) Summary Disposition. Notwithstanding any other provision of these rules, the court (other than the Traditional Rights Court) may summarily punish a person who commits criminal contempt in its presence if the judge saw or heard the contemptuous conduct and so certifies. The contempt order must recite the facts, be signed by the judge, and be filed with the clerk.

 

(c) Review and Appeal. Contempt proceedings, whether summary or otherwise, in any court, including a Community Court, are subject to review and appeal to the same extent as other cases in that court, and the record must be forwarded in the same manner.

 

TITLE IX. GENERAL PROVISIONS

 

Rule 43. Defendantís Presence

 

(a) When Required. Unless this rule or Rule 10 provides otherwise, the defendant must be present at:

 

(1) the initial appearance, the initial arraignment, and the plea;

 

(2) every trial stage, including jury impanelment and the return of the verdict; and

 

(3) sentencing.

 

(b) When Not Required. A defendant need not be present under any of the following circumstances:

 

(1) Organizational Defendant. The defendant is an organization represented by counsel who is present.

 

(2) Misdemeanor Offense. The offense is punishable by fine or by imprisonment for not more than one year, or both, and with the defendantís written consent, the court permits arraignment, plea, trial, and sentencing to occur in the defendantís absence.

 

(3) Conference or Hearing on a Legal Question. The proceeding involves only a conference or hearing on a question of law.

 

(4) Sentence Correction. The proceeding involves the correction or reduction of sentence under Rule 35.

 

(c) Waiving Continued Presence

 

(1) In General. A defendant who was initially present at arraignment, or whose appearance at the arraignment was waived under Rule 10, waives the right to be present under the following circumstances:

 

(A) when the defendant is voluntarily absent during trial, regardless of whether the court informed the defendant that failure to appear after arraignment may be deemed a waiver or forfeiture of the right to be present during the trial and that the trial will continue in the defendantís absence;

 

(B) when the defendant is voluntarily absent during sentencing; or

 

(C) when the court warns the defendant that it will remove the defendant from the courtroom for disruptive behavior, but the defendant persists in conduct that justifies removal from the courtroom.

 

(2) Waiverís Effect. If the defendant waives the right to be present, the trial may proceed to completion, including the verdictís return and sentencing, during the defendantís absence.

 

Rule 44. Right to and Appointment of Counsel

 

(a) Right to Appointed Counsel. A defendant who is unable to obtain counsel is entitled to have counsel appointed to represent the defendant at every stage of the proceeding from initial appearance through appeal, unless the defendant waives this right.

 

(b) Reserved

 

(c) Inquiry Into Joint Representation

 

(1) Joint Representation. Joint representation occurs when:

 

(A) two or more defendants have been charged jointly under Rule 8(b) or have been joined for trial under Rule 13; and

 

(B) the defendants are represented by the same counsel, or counsel who are associated in law practice.

 

(2) Courtís Responsibilities in Cases of Joint Representation. The court must promptly inquire about the propriety of joint representation and must personally advise each defendant of the right to the effective assistance of counsel, including separate representation. Unless there is good cause to believe that no conflict of interest is likely to arise, the court must take appropriate measures to protect each defendantís right to counsel.

 

Rule 45. Computing and Extending Time

 

(a) Computing Time. Except as otherwise provided by law for particular purposes, in computing any time, other than one stated expressly in hours or more exactly than that, the following rules apply in computing any period of time specified in these rules or any court order:

 

(1) Day of the Event Excluded. Exclude the day of the act, event, or default that begins the period.

 

(2) Exclusion from Brief Periods. Exclude intermediate Saturdays, Sundays, and legal holidays when the period is less than 11 days.

 

(3) Last Day. Include the last day of the period unless it is a Saturday, Sunday, legal holiday, or day on which weather or other conditions make the clerkís office inaccessible. When the last day is excluded, the period runs until the end of the next day that is not a Saturday, Sunday, legal holiday, or day when the clerkís office is inaccessible.

 

(4) "Legal Holiday" Defined. As used in this rule, Ďílegal holidayí Ďmeans:

 

(A) the day set aside by statute for observing:

 

(i) New Yearís Day;

 

(ii) Memorial Day and Nuclear Victimís/Survivorís Day;

 

(iii) Good Friday;

 

(iv) Constitution Day;

 

(v) Fishermanís Day;

 

(vi) Dri Jerbal Day;

 

(vii) Manit Day;

 

(viii) Presidentsí Day;

 

(ix) Gospel Day;

 

(x) Christmas Day; and

 

(B) any other day declared a holiday by the Public Service Commission in consultation with the Cabinet.

 

(b) Extending Time

 

(1) In General. When an act must or may be done within a specified period, the court on its own may extend the time, or for good cause may do so on a partyís motion made:

 

(A) before the originally prescribed or previously extended time expires; or

 

(B) after the time expires if the party failed to act because of excusable neglect.

 

(2) Exceptions. The court may not extend the time to take any action under Rules 29, 33, 34, and 35, except as stated in those rules.

 

(c) Additional Time After Service. When these rules permit or require a party to act within a specified period after a notice or a paper has been served on that party, three days are added to the period if service occurs in the manner provided under Rule of Civil Procedure 5(b)(2)(B) or (C).

 

Rule 46. Release from Custody; Supervising Detention

 

(a) Before Trial. Pursuant to the provisions of Article II, Section 4(3) of the Constitution, pre-trial bail shall not be required in an amount greater than needed to ensure that the defendant will appear for trial, nor may any person be detained before trial when other means are available to provide reasonable assurance that the person will not flee or gravely endanger the public safety. In determining the conditions for pretrial release and whether the defendant shall be released upon recognizance, the judge shall consider:

 

(1) the nature and circumstances of the offense;

 

(2) the weight of the evidence;

 

(3) the character of the defendant;

 

(4) the defendantís family ties;

 

(5) the defendantís employment;

 

(6) the defendantís financial resources;

 

(7) the length of the defendantís residence in the community;

 

(8) any record of convictions;

 

(9) the defendantís record of appearance at court proceedings or of flight to avoid prosecution;

 

(10) any other available information relevant to whether the defendant is likely to appear at court proceedings; and

 

(11) any risk that the defendantís release would pose to a person or the public.

 

In addition to any specific conditions set by the court, pretrial release automatically includes the following conditions: that the defendant appear before the court where and when ordered to do so; that the defendant not depart from the atoll of the defendantís first appearance without the permission of the court; and that the defendant keep the peace and be of good behavior until final disposition of the case.

 

(b) During Trial. A person released before trial continues on release during trial under the same terms and conditions. But the court may order different terms and conditions or terminate the release if necessary to ensure that the person will be present during trial or that the personís conduct will not obstruct the orderly and expeditious progress of the trial.

 

(c) Pending Sentencing or Appeal. The court may release the person under such conditions as it deems appropriate and necessary if it finds that the person will not flee or pose a danger to any other person or to the community pending sentencing or appeal. The burden of establishing that the person will not flee or pose a danger to any other person or to the community rests with the person.

 

(d) Pending Hearing on a Violation of Probation or Supervised Release. Rule 32.1(a)(6) governs release pending a hearing on a violation of probation or supervised release.

 

(e) Surety. A person of good standing in the community who is in a position of moral or customary authority over the defendant, such as a parent, head of extended family group, or the chief of the personís lineage or clan, may be accepted as surety without the disclosure of property by way of justification, if the court taking bail or determining the sufficiency of the surety considers that such surety will reasonably guarantee the appearance of the defendant. Otherwise, the court may only approve a bond if the surety appears to be qualified. Such qualification must be demonstrated by the suretyís affidavit that its assets are adequate. The affidavit must include the following:

 

(1) the property that the surety proposes to use as security;

 

(2) any encumbrance on that property;

 

(3) the number and amount of any other un-discharged bonds and bail undertakings the surety has issued; and

 

(4) any other liability of the surety.

 

Notwithstanding anything in these rules to the contrary, no judge, clerk, assistant clerk, or other court official and no lawyer or trial assistant practicing or appearing in the Marshall Islands courts shall be accepted as surety in any case or proceeding pending in any court of the Republic of the Marshall Islands.

 

(f) Bail Forfeiture

 

(1) Declaration. The court must declare the bail forfeited if a condition of the bond is breached.

 

(2) Setting Aside. The court may set aside in whole or in part a bail forfeiture upon any condition the court may impose if:

 

(A) the surety later surrenders into custody the person released on the suretyís appearance bond; or

 

(B) it appears that justice does not require bail forfeiture.

 

(3) Enforcement.

 

(A) Default Judgment and Execution. If it does not set aside a bail forfeiture, the court must, upon the governmentís motion, enter a default judgment.

 

(B) Jurisdiction and Service. By entering into a bond, each surety submits to the courtís jurisdiction and irrevocably appoints the clerk as its agent to receive service of any filings affecting its liability.

 

(C) Motion to Enforce. The court may, upon the governmentís motion, enforce the suretyís liability without an independent action. The government must serve any motion, and notice as the court prescribes, on the clerk. If so served, the clerk must promptly mail a copy to the surety at its last known address.

 

(4) Remission. After entering a judgment under Rule 46(f)(3), the court may remit in whole or in part the judgment under the same conditions specified in Rule 46(f)(2).

 

(g) Exoneration. The court must exonerate the surety and release any bail when a bond condition has been satisfied or when the court has set aside or remitted the forfeiture. The court must exonerate a surety who deposits cash in the amount of the bond or timely surrenders the defendant into custody.

 

(h) Supervising Detention Pending Trial

 

(1) In General. To eliminate unnecessary detention, the court may supervise the detention of any defendants awaiting trial and of any persons held as material witnesses.

 

(2) Reports. A government prosecutor must report biweekly to the court, listing each material witness held in custody for more than 10 days pending arraignment or trial. For each material witness listed in the report, a government prosecutor must state why the witness should not be released with or without a deposition being taken under Rule 15(a).

 

(i) Forfeiture of Property. The court may dispose of a charged offense by ordering the forfeiture of property, if a fine in the amount of the propertyís value would be an appropriate sentence for the charged offense.

 

Rule 47. Motions and Supporting Affidavits

 

(a) In General. A party applying to the court for an order must do so by motion.

 

(b) Form and Content of a Motion. A motionóexcept when made during a trial or hearingómust be in writing, unless the court permits the party to make the motion by other means. A motion must state the grounds on which it is based and the relief or order sought and, if involving a question of law, must be accompanied by a memorandum of points and authorities that sets forth a brief statement of the case, the relief sought, the facts relied upon, the applicable law, and clear and concise argument in support of the motion. A motion may be supported by affidavit. When a motion is based on facts not appearing in the record, the court may hear the matter on written statements under oath, or the court may direct that the matter be heard wholly or partly on oral testimony or depositions.

 

(c) Timing of a Motion. A party must serve a written motionó other than one that the court may hear ex parteóand any hearing notice at least 5 days before the hearing date, unless a rule or court order sets a different period. For good cause, the court may set a different period upon ex parte application.

 

(d) Memorandum of Points and Authorities and Affidavit Supporting a Motion. The moving party must serve any supporting memorandum of points and authorities and affidavit with the motion. A responding party must serve any opposing memorandum of points and authorities and affidavit at least one day before the hearing, unless the court permits later service.

 

(e) Argument. Argument on any motion or other matter shall be allowed in the discretion of the court and when authorized must be as brief as is consistent with a fair representation of the matter under consideration.

 

Rule 48. Dismissal

 

(a) By the Government. The government may, with leave of court, dismiss an information or citation. The government may not dismiss the prosecution during trial without the defendantís consent.

 

(b) By the Court. The court may dismiss an information or citation if unnecessary delay occurs in bringing a defendant to trial.

 

Rule 49. Serving and Filing Papers

 

(a) When Required. A party must serve on every other party any written motion, written notice, designation of the record on appeal, or similar paper.

 

(b) How Made. Service must be made in the manner provided for a civil action. When these rules or a court order requires or permits service on a party represented by an attorney, service must be made on the attorney instead of the party, unless the court orders otherwise.

 

(c) Notice of a Court Order. When the court issues an order on any post-arraignment motion, the clerk must provide notice in a manner provided for in a civil action. The clerkís failure to give notice does not affect the time to appeal, or relieve - or authorize the court to relieve - a partyís failure to appeal within the allowed time.

 

(d) Filing. A party must file with the court a copy of any paper the party is required to serve with a certificate of service on other parties. A paper must be filed in a manner provided for in a civil action.

 

Rule 50. Prompt Disposition

 

Scheduling preference must be given to criminal proceedings as far as practicable.

 

Rule 51. Preserving Claimed Error

 

(a) Exceptions Unnecessary. Exceptions to rulings or orders of the court are unnecessary.

 

(b) Preserving a Claim of Error. A party may preserve a claim of error by informing the court - when the court ruling or order is made or sought - of the action the party wishes the court to take, or the partyís objection to the courtís action and the grounds for that objection. If a party does not have an opportunity to object to a ruling or order, the absence of an objection does not later prejudice that party. A ruling or order that admits or excludes evidence is governed by Rule of Evidence 103.

 

Rule 52. Harmless and Plain Error

 

(a) Harmless Error. Any error, defect, irregularity, or variance that does not affect substantial rights must be disregarded.

 

(b) Plain Error. A plain error that affects substantial rights may be considered even though it was not brought to the courtís attention.

 

Rule 53. Courtroom Photographing and Broadcasting Prohibited

 

Except as otherwise provided by a statute or these rules, the court must not permit the taking of photographs in the courtroom during judicial proceedings or the broadcasting of judicial proceedings from the courtroom.

 

Rule 54. Reserved

 

Rule 55. Records

 

(a) Upon Appeal. The record of any case upon appeal may be based on the record in the court below and need not duplicate or restate any matter therein. The record of the appeal must include the date (or dates) and place (or places) of hearing of the appeal; the name of the court; the names of the judges who heard the appeal; the notice of appeal; the name of counsel or parties personally participating and of any interpreter or reporter; all material testimony of every witness, if any, heard by the trial court (or the substance thereof); all written arguments submitted; any of the substance of oral arguments as the court may direct; the decision and the date it is rendered; any other orders of the court; and any written opinion given by the court.

 

(b) Trials Other than Appeals

 

(1) In the High Court. A record of every case (other than an appeal) must be taken down in longhand, shorthand, or other suitable recording device, except that only so much, if any, of oral arguments or oral statements of counsel need be included as the court may direct. This record must include the substance of all material testimony of every witness (which may be recorded in narrative or question and answer form). Unless and until an appeal is taken, the record of the case may be kept in the abbreviated form hereinafter provided for Community Courts (omitting testimony) with the original longhand or shorthand notes, or other original records, or a rough transcript thereof, filed in the office of the Clerk of Courts or the office of the judge who tried the case or as otherwise directed by the court. These original longhand or shorthand notes, or other original records, or rough transcript thereof, in any case may be destroyed on order of the High Court after two years from the final disposition of the case.

 

(2) In District Courts and Community Courts. Records of cases (other than appeals) before District and Community Courts must be kept in abbreviated form. Each record must include:

 

(A) the date (or dates) and place (or places) of the trial;

 

(B) the name of the Court and the names of the judge or judges who heard the case;

 

(C) the name, address, sex, and age of each defendant;

 

(D) the names of any interpreter, reporter, prosecutor, or counsel for the defendant;

 

(E) the name, date, and place of each offense charged, and as an annex, the original information or copy of the citation on which the defendant was tried or the substance thereof if oral;

 

(F) the plea of each defendant to each charge;

 

(G) the names and addresses of the witnesses, if any, who testify for the prosecution and those, if any, who testify for the defense;

 

(H) the finding on each charge;

 

(I) the sentence of each charge of which the defendant is found guilty, and if there is more than one sentence of imprisonment, a statement as to whether the sentence will run successively or concurrently;

 

(J) any other orders (such as confiscation, restitution, suspension of sentence, etc.); and

 

(K) any remarks that the court desires to add to assist in a proper understanding of the case upon review or appeal.

 

District Courts in felony cases must also include in the record the substance of the testimony of each witness and a brief description of any documents or objects received in evidence.

 

(3) Reports in Cases (Other than Felony Cases) Appealed From District Courts or Community Courts.

 

(A) Any party appealing from the decision of a District or Community Court in any case other than a felony case must file a draft report, containing the information specified below, within 30 days after the imposition of the sentence or entry of the judgment, order or decree appealed from. This draft report may be filed with the notice of appeal or at any time thereafter within the above‑mentioned 30‑day period. If no draft report is filed as above required, the appeal may be dismissed by the court appealed to.

 

(B) Such draft report must contain a concise statement of the grounds of appeal, unless these have been so stated in the notice of appeal, a statement of all rulings and the substance of all evidence needed for a full understanding of the question raised by the appeal, which are not already contained in the record of the court appealed from.

 

(C) One copy of the draft must be delivered or mailed by the party appealing to each adverse party. The judge who presided at the trial must hold a hearing on the draft report if any party files a written request therefore within 10 days of the filing of the draft report. Such a hearing may be held in any case if the trial judge deems best. The trial judge must thereupon settle the contents of the draft report. In doing this, the trial judge must make any changes in the draft deemed necessary to fairly summarize all that happened at the trial which is material to the questions raised by the appeal. The trial judge may order the party appealing to prepare a copy of the report as settled and submit the same to the trial judge within such time as the trial judge may fix. Failure to comply with such order constitutes sufficient ground for the dismissal of the appeal by the court appealed to. When an easily readable copy of the report as settled has been prepared, the trial judge must sign and file it. Upon the filing of the report, it will become a part of the record, which may in case of need be corrected or supplemented.

 

(D) If any trial judge fails to settle and file a report within 30 days after the draft report is filed, any party may file a petition verified by affidavit, setting forth in full the partyís claim with regard to such report and all facts material thereto, and deliver or send forthwith to all adverse parties a copy of said petition. Any adverse party may within 10 days thereafter file a counter affidavit, setting forth the adverse partyís claim with regard to such report and all facts material thereto, and must deliver or send a copy thereof to each adverse party. As soon as practicable, after the expiration of 10 days from the filing of such petition, the matter must be set for hearing in the court appealed to and action on the matter may then be taken in the same manner as if the report had been settled by the trial judge, but the court appealed to must consider the location of parties concerned and usual means of communication to and from such location and not take action affecting the merits until it feels all concerned have had reasonable notice and chance to prepare for hearing. That court may then make such order or orders as it deems best to enable it to make a just determination of the merits of the appeal. Every reasonable effort must be made to avoid having to take testimony in the court appealed to and that court must limit any testimony to the witnesses and matters it deems essential to a just determination of the appeal. In an extreme situation, however, it may order a trial de novo in the court appealed to.

 

(E) In any case in which the court appealed to is satisfied that it is not practical for an appealing party to submit a satisfactory draft report or to have this settled by the trial judge, the court appealed to may adopt such procedure as it deems necessary to accomplish justice, taking care to see that each party has an adequate opportunity to present and prepare to argue any ground of appeal advanced.

 

(F) If any party is represented by counsel, all action required by and all notices or copies required to be given to such party under this subparagraph number 3, must be taken by or given to that partyís counsel. All counsel and parties acting without counsel must cooperate with each other and the trial judge so as to enable the trial judge to settle and file a satisfactory report as promptly as possible. If no report has been settled and filed, they must similarly cooperate with each other and with the court appealed to so as to enable it to act fairly and promptly upon the appeal either without its taking any testimony or with the taking of as little testimony as practicable.

 

(c) Language. The proceedings and record of each case in any court, including a Community Court, may be either in the Marshallese or in the English language as the court deems best.

 

(d) 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.

 

(e) Lost Records. If before the conclusion of any case or before review or appeal, the record of such case is lost or destroyed, a certificate of the substance of the proceedings in the case must be accepted in place of the record. A sufficient certificate must be signed by any member of the court to the satisfaction of the reviewing authority or the court hearing the case on appeal, and must contain the charges, findings, and sentences, and the substance of the material testimony, if required to be included in the record, and of any orders in connection with the disposition of the case.

 

(f) Signing and Transmittal of Records. Each record in any court, including a Community Court, must be signed whenever practicable by all the judges who heard the case. It must be signed by at least one of them unless they are all deceased or incapacitated. Records must be promptly transmitted by the judge of any court, including a Community Court, who presided at the trial, to the clerk where the trial was held, and any correction made later must be similarly transmitted.

 

(g) Responsibility for the Record. The judge of any court, including a Community Court, who presides at any trial, hearing, or other proceeding, is responsible for the making of the record of that trial, hearing, or proceeding, and may require any other judge hearing the matter, or a reporter, or clerk, to assist him in making the record.

 

(h) Duties of Clerk of Courts. Clerk of Courts must keep such dockets, indexes, and records in addition to those herein required, as the Chief Justice of the High Court may from time to time prescribe. In addition to the functions prescribed by law and these rules, the Clerk of Courts must perform such duties as the Chief Justice of the High Court, or a judge for any of the courts for which the clerk acts, may direct.

 

(i) Records Open to the Public. Except as otherwise provided by Act of the Nitijela and these rules, all court records in the custody of the Clerk of Courts must be open to inspection by any person who handles the records carefully at any time the Clerkís office is open, unless otherwise expressly provided by law, except that the court may for cause shown order that any information the proceedings thereon be disclosed only to those required to take action in connection therewith until after the arrest of the defendant, or until his arraignment if he is arraigned without arrest, and any such order must be complied with. No charge may be made for permitting examination of records, nor may any explanation be required as to why a person wished to see a record.

 

Rule 56. When Court Is Open

 

(a) In General. A court is considered always open for any filing, and for issuing and returning process, making a motion, or entering an order.

 

(b) Office Hours. The clerkís officeówith the clerk, deputy or an assistant in attendanceómust be open during business hours on all days except Saturdays, Sundays, and legal holidays.

 

(c) Special Hours. A court may provide by rule or order that its clerkís office will be open for specified hours on Saturdays.

 

Rule 57. Impounding and Disposition of Funds and Other Property

 

(a) Impounding. A court may in its discretion impound, by an order directing any person to be charged with the care thereof, any money or other objects relative to proceedings before it, whether or not they have been received in evidence.

 

(b) Disposition. Receipts must be given for all fines and property forfeited. Property forfeited to the Republic may be disposed of as the court directs, or in accordance with such procedure as may be prescribed by the Constitution, Acts of the Nitijela, and by applicable accounting or other instructions with respect thereto. All fines collected and proceeds of property forfeited to the Republic under the order of any court, including the Community Court, must be treated and accounted for in accordance with law.

 

Rule 58. Reserved

 

Rule 59. Procedure Not Otherwise Specified

 

When no procedure has been directed in any matter that arises, a court may proceed in any manner not inconsistent with law or with these rules, which the court deems will promote justice.

 

Rule 60. Title

 

These rules may be known and cited as the Marshall Islands Rules of Criminal Procedure.

 

Rule 61. Effective Date

 

These rules, adopted by the High Court on April 25, 2005, shall take effect on May 1, 2005. They govern all proceedings in actions brought after they take effect and also all further proceedings in actions then pending, except to the extent that in the opinion of the court their application in a particular action pending when the amendments take effect would not be feasible or would work injustice, in which event the former procedures apply.

 

-------------------------------