Navajo Rules of Criminal Procedure Cite as Nav. R. Cr. P.
These rules were were approved by the Supreme Court of the Navajo Nation in Order No. SCO-5-90 on October 4, 1990; and by the Judiciary Committee of the Navajo Nation Council in Resolution JCO-15-90 on October 11, 1990. The rules became effective on November 1, 1990.
I. SCOPE OF RULES AND DEFINITIONS
RULE 1. Scope.
These Rules govern the procedure in all criminal proceedings in the District Courts of the Navajo Nation and shall be known as the Navajo Rules of Criminal Procedure and may be cited as Nav. R. Cr. P. In all situations not provided for by rule or statute, the court may regulate the course of proceedings in any lawful manner not inconsistent with these Rules or any applicable statute.
Rule 1.1 Definitions and Terms.
1.1(a) Counsel. The term ďcounselĒ as used in these Rules shall include all members of the Navajo Nation Bar Association and any other authorized representative of a party.
1.1(b) Conformed Copy. A conformed copy is a copy of a pleading, which shows the court stamp placed upon the original at the time of filing.
1.1(c) Pronoun Usage. Whenever a masculine or feminine pronoun is used it shall be deemed to include both males and females.
1.1(d) Warrants of Arrest. Warrants to arrest are any writs signed by a judge directing the attachment of a body and include bench warrants and warrants to apprehend.
RULE 2. Construction and Purpose.
2(a) Construction. These Rules shall be construed consistently with the laws of the Navajo Nation.
2(b) Purpose. These Rules are intended to provide for the just determination of criminal proceedings. They shall be construed to secure simplicity in procedure, fairness in administration, and the elimination of unjustifiable expense and delay.
RULE 3. Computation of Time.
3(a) Time Periods. In computing any period of time under these Rules, by order of court or by any applicable law, the day of the act or event from which the designated period of time begins to run is not to be included. The last day of the period so computed shall be included unless it is a Saturday, a Sunday, or a court holiday in which event the period runs until the end of the next business day which is not a Saturday, Sunday, or a court holiday.
3(b) Time Periods for Service by Mail. Whenever a party has a right or is required to take some action within a prescribed period of time after service of a notice or other paper and such service is allowed and made by mail, five (5) days shall be added to the prescribed period.
RULE 4. Size of Paper; Copies; Conformed Copies
4(a) Paper Size. All pleadings and other papers, except traffic citations, filed in any proceeding governed by these Rules shall be on paper measuring 8-1/2 x 11 inches.
4(b) Signed Original. A party filing any document with the court shall submit a manually signed original.
4(c) Conformed Copies. A party desiring copies for any purpose shall submit such a copy or copies to the court. A party desiring to be mailed a conformed copy shall provide the court with a self-addressed stamped envelope at the time the request for a conformed copy is made.
II. GENERAL RULES OF PLEADING.
RULE 5. Pleadings.
5(a) Form. Every pleading shall have a caption identifying the court, the title of the action, the type of pleading and the case number(s) or space therefore, and space for the clerkís stamp and other certifications.
5(b) Motions. All applications and petitions to the court shall be by written motion, unless made in open court during a hearing or trial. Each motion shall state the grounds and shall set forth the relief or order sought:
(1) Motions containing factual allegations may be supported by affidavit.
(2) Procedural motions based upon these Rules may cite the enabling authority in the body of the motion, and further supporting papers shall not be required.
(3) Motions raising issues of law shall be supported by memoranda of law or briefs.
5(c) Ex Parte Communications. Ex parte communications and private hearings with the court are prohibited and ex parte written communications shall be returned to the sender by the clerk of the court as though not filed.
RULE 6. Service and Filing.
6(a) Manner. Unless otherwise specified in these Rules, the manner and sufficiency of service of motions and all other pleadings and documents shall be governed by the Rules of Civil Procedure.
6(b) Notice of Orders. Immediately after the signing by the judge of any order in a criminal case, other than in open court, the clerk shall serve a copy upon all parties.
RULE 7. No Joinder.
7(a) No Joinder of Offenses. No defendant shall be charged with more than one count on the same complaint. A defendant shall be charged one count per complaint even if the crimes charged are of similar character, or are based on the same act or on a series of acts, which are part of a single scheme.
7(b) No Joinder of Defendants. Only one defendant shall be charged in one complaint even if more than one defendant is alleged to have taken part in the same act or series of acts constituting the crime charged.
III. PRELIMINARY PROCEEDINGS
RULE 8. Criminal Complaint.
8(a) Commencement of Criminal Proceedings. A criminal proceeding is commenced by the prosecutor filing with the court a complaint in the name of the Navajo Nation.
8(b) Contents of Criminal Complaint. The criminal complaint shall contain the following:
(1) The identity of the defendant, which shall include as much of the following as can be reasonably ascertained:
(A) The defendantís name or, if his name is unknown, any name or description by which he can be identified with reasonable certainty;
(B) The defendantís census number, if any;
(C) The defendantís address, if known.
(2) The essential facts, including jurisdictional facts, constituting the offense.
(3) The statutory name of the offense.
(4) The section(s) of the Navajo Tribal Code the defendant is alleged to have violated.
(5) The signature of the prosecutor and complainant.
8(c) Unnecessary Allegations. Any unnecessary allegations contained in a complaint shall be deemed surplusage and disregarded.
8(d) Incomplete or Defective Complaint. A complaint that does not meet the requirements set forth in this Rule shall be subject to dismissal on the courtís own motion or on the motion of the defendant. Such dismissal based upon an error, omission, or defect in the complaint may be without prejudice, or the prosecution may be given leave to amend the complaint.
RULE 9 Criminal Summons: Form
9(a) Content of Summons. Upon the filing of a criminal complaint the clerk may issue a criminal summons to the defendant(s) to appear. The summons shall be signed by the clerk of the issuing court and shall be attached to the complaint. It shall contain the following:
(1) The name of the defendant, or sufficient description to identify the defendant with reasonable certainty;
(2) The description of the offense(s) charged;
(3) Notice that at arraignment, the defendant will be expected to enter a plea to the offense(s) charged;
(4) A recommendation that defendant consult with legal counsel before arraignment;
(5) Notice that failure to appear at the arraignment will result in issuance of a warrant for the defendantís arrest.
9(b) Failure to Appear. If a defendant fails to appear in person at the time and place specified on the summons, the court may issue a Warrant for Arrest.
9(c) Service and Return of Summons.
(1) A criminal summons shall be served by a police officer of the Navajo Nation.
(2) A criminal summons shall be served within the territorial jurisdiction of the Navajo Nation.
(3) A criminal summons shall be served upon the defendant by delivering a copy to the defendant personally.
(4) If the officer serving the criminal summons is unable to find the defendant, he shall make due return not later than fifteen (15) days after he receives it. His return shall state the reasons he was unable to serve the summons.
RULE 10 Arrest Warrant upon Complaint
10(a) Application for Arrest Warrant. If it appears from the complaint that there is probable cause to believe that an offense was committed, and the defendant has committed it, an arrest warrant shall be issued upon written application of the prosecutor. The application must show one or more of the following circumstances:
(1) Defendant has failed to appear for arraignment or failed to respond to a criminal summons;
(2) Defendant is on probation for a prior offense;
(3) Probable cause to believe that the defendant will not obey a criminal summons;
(4) Probable cause to believe that the defendant will leave the jurisdiction of the Navajo Nation.
10(b) Contents of Warrant. The arrest warrant shall be signed by the issuing judge and it shall contain the following:
(1) Name of the defendant, or sufficient description to identify the defendant with reasonable certainty;
(2) Description of the offense(s) charged;
(3) A statement that the defendant is to be arrested and detained and brought before the judge without unnecessary delay;
(4) Pending arraignment the judge may set bond and endorse the amount on the warrant;
(5) An arrest warrant shall not be invalidated nor shall any person in custody thereon be discharged, because of a defect in form. The warrant may be amended to remedy the defect in form.
10(c) Execution and Return of Warrant for Arrest.
(1) By whom. The warrant shall be directed to, and may be executed by, all police officers in the Navajo Nation.
(2) Manner of Execution. A warrant shall be executed by arresting the defendant. If the officer does not have the warrant in his possession at the time of the arrest, he shall inform the defendant of the offense(s) charged and of the fact that a warrant has been issued and shall show the warrant to the defendant as soon as possible.
(3) Return. Return of the warrant shall be made to the issuing court.
RULE 11. Arrest Without Warrant.
11(a) When Arrest Without Warrant Authorized. A person may be arrested without a warrant by a police officer of the Navajo Nation when:
(1) The arresting officer witnesses the event(s) which constitute the offense; or
(2) The arresting officer has probable cause to believe that an offense has been committed and that the person to be arrested has committed the offense.
11(b) Filing a Criminal Complaint after Arrest without Warrant. When a person is arrested without a warrant and a criminal complaint has not yet been filed, the prosecutor shall file a criminal complaint on the next day on which the court for the district in which the defendant is being held is open following the arrest. If no criminal complaint is filed by the time the court closes on said day, the defendant may be released.
RULE 12. Arraignment.
12(a) Purpose. The purpose of the arraignment is to bring the defendant before the court; to advise the defendant of the specific nature of the charges against him; to advise the defendant of his rights under the law; and to ask the defendant to enter a plea.
(1) Arraignment of a defendant in custody shall be within the time provided by law. A defendant not arraigned within the time provided shall be released.
12(c) Arraignment Procedure. An arraignment shall be conducted in the English language for the record, and if necessary in the Navajo language for the defendantís understanding, and it shall proceed according to the following steps:
(1) The defendant shall be given a copy of the complaint;
(2) The case name and number shall be called and the defendant shall stand and face the Bench;
(3) The court shall ascertain the defendantís name, date of birth, tribal membership, if any, census and/or social security number, if any;
(4) The court shall read the complaint to the defendant and ask the defendant if he understands the charges and give an oral explanation if necessary;
(5) The judge shall inform the defendant of his rights including the right:
(i) To remain silent;
(ii) To have counsel at his or her own expense. (The defendant shall also be informed that the court may appoint counsel if defendant cannot afford counsel.)
(iii) To plead not guilty;
(iv) To confront and cross-examine witnesses;
(v) To be released or admitted to bail unless certain findings are made to the contrary;
(vi) To trial by jury;
(vii) To a speedy and public trial;
(viii) To all witnesses;
(ix) To file a writ of habeas corpus.
(6) The judge shall inform the defendant of the maximum penalty which could be imposed if the defendant were found guilty of or pleaded guilty to the offense(s) charged.
(7) After the judge informs the defendant of his rights, the defendant shall then be called upon to plead to the charge(s).
IV. PARTICULARIZED RIGHTS.
RULE 13. Trial by Jury.
13(a) Demand. The defendant may demand a jury trial at the time of the arraignment or within 15 days thereafter or it will be deemed waived.
13(b) Procedure. The demand may be made orally at the arraignment or shall be in writing if made after arraignment. If made orally, the judge or the clerk of the court shall note the demand in writing in the court file, including the date of the demand.
RULE 14. Assistance of Counsel.
14(a) Right to Counsel. Every defendant has the right to the assistance of counsel at defendantís own expense.
14(b) Indigency. Upon a showing of indigence, the court may appointment counsel for such a defendant, and the court may order counsel to serve without pay.
14(c) List of Navajo Nation Bar Association Members. The clerk of the district court shall maintain a list of all active members of the Navajo Nation Bar Association from which counsel shall be appointed.
RULE 15. Release Prior to Trial.
15(a) Release on Personal Recognizance. At the initial appearance before a judge, any person charged with a violation of law may be ordered released pending trial on personal recognizance unless the judge makes a specific finding that such release will not reasonably assure the appearance of the defendant at trial.
15(b) Release upon Conditions. Upon a finding a specified in Rule 15(a), the judge may permit release under conditions; which will reasonably assure the appearance of the defendant for trial including the following:
(1) Placement of restrictions on the activities, travel, association, or place of abode of the defendant during the period of release relevant to the defendantís appearance as required; or
(2) The execution of a cash bond; or
(3) A condition requiring the return of the defendant to custody after specified hours.
15(c) Order of Release. The court releasing the defendant shall issue an Order of Release containing a statement of the conditions imposed and the penalties of violating the conditions of release, and advising the defendant that a Warrant of Arrest may be issued immediately upon any violation. The defendant shall sign or place an identifying mark on the Order agreeing to the release and conditions.
15(d) Denial of Release. If there is reason to believe that the defendant is dangerous to public safety or that the defendant will commit a serious crime, or will seek to intimidate any witness, or will otherwise unlawfully interfere with the administration of justice if released, or for any other reason allowed by law, then the court may deny release or may order the defendant to abide by any other condition(s) necessary to the orderly administration of justice. The court must state the reasons for the record.
15(e) Amendment of Conditions of Release. Upon motion by a party, with notice to the opposing party, the court may amend any conditions of release at any time to impose additional or different conditions. Such motion shall be determined promptly.
15(f) Review of Conditions of Release; Revocation of Release; Forfeiture of Return of Bond.
(1) When there is reason to believe a breach of condition of release has occurred, on motion by the prosecutor or on the courtís own motion, the court may order the defendant arrested for the purpose of reviewing the conditions of release.
(2) After review of the circumstances, if the court determines that the conditions should be modified or the release revoked, it shall so order. A record of the review hearing shall be made. The Rules of Evidence shall not apply to such review hearings.
(3) If there is a breach of a condition of bail the court shall order forfeiture of the bond.
15(g) Return of Bond.
(1) If a case is dismissed prior to trial or during trial, where the defendant has complied with all the terms and conditions of the bail, the bond shall be returned;
(2) Bond shall be refunded only to the person posting such bond.
RULE 16. Presence of Defendant.
16(a) Presence Required. Except as otherwise provided by this Rule, the defendant shall be present at the arraignment and at every stage of the trial, including the impaneling of the jury and return of the verdict, and at the imposition of sentence.
16(b) Continued Presence not Required. The progress of the trial to and including the return of the verdict shall not be prevented and the defendant shall be considered to have waived the right to be present whenever a defendant who was present at the beginning of the trial.
(1) Voluntarily leaves the courtroom after the trial has begun (even where defendant has not been informed by the court that the defendant is obligated to remain during the trial); or
(2) After being warned by the court, engages in conduct that justifies removal from the courtroom.
RULE 17. Venue.
17(a) Where Filed. Except as provided in these Rules, criminal complaints shall be filed in the judicial district in which some act which is the basis for the criminal complaint (in whole or in part) is alleged to have taken place.
17(b) Transfer. For good cause, the court on motion of a party or its own motion may transfer any proceeding to any other district court for hearing.
17(c) Good Cause. ďGood causeĒ as used in this Rule includes:
(1) Pretrial publicity in the district in which the proceeding is pending which may substantially impair the ability of either the Navajo Nation or the defendant to get a fair hearing.
(2) Convenience of witnesses.
(3) The inability of the court in which the action is pending to hear the matter within a time period consistent with ďspeedy trialĒ considerations.
17(d) Consent of Judge. If the judge making the transfer does not intend to hear the proceeding following transfer, the written consent of the presiding judge of the district court to which the proceeding is transferred shall be obtained prior to transferring the action.
RULE 18. Disqualification of Judge.
Disqualification of a judge shall be done in the same manner as in civil actions.
RULE 19. Mental Competency.
19(a) Effect of Incompetency. A person shall not be tried, convicted, sentenced or punished for an offense while, as a result of mental illness or defect, he is unable to understand the proceedings against him or to assist in his own defense.
19(b) Motion for Examination. At any time after arraignment, any party, or the court on its own motion, may move for an examination to determine whether a defendant is competent to stand trial or to investigate his mental condition at the time of the offense. The motion shall state the facts upon which the mental examination is sought.
19(c) Procedure for Examination. If the motion is granted, the court, in conference with the prosecution and counsel for the defendant or the defendant pro se, shall order examination as follows:
(1) Identify one or more mental health experts who will perform the examination and submit the report.
(2) Have the experts make available to all parties copies of their reports, except that any statement or summary of statements of the defendant concerning the offense charged shall be made available only to the defendantís counsel or the defendant pro se.
19(d) Competency Hearing and Orders.
(1) Hearing. When the examinations have been completed, the court shall hold a hearing to determine the defendantís competency to stand trial. The parties may introduce other evidence regarding the defendantís mental condition, or by written stipulation, submit the matter of the expertsí reports.
(2) Orders. After the hearing:
(A) If the court finds that the defendant is competent to stand trial, proceedings shall continue without delay.
(B) If the court determines that the defendant is incompetent to stand trial, and that there is not substantial probability that the defendant will become competent within a reasonable period of time, it shall:
(i) Order the defendant civilly committed if it finds that his condition warrants such commitment according to the standards provide by law; or
(ii) Release the defendant.
(C) If the court determines that the defendant is incompetent to stand trial, but there is a substantial probability that the defendant will become competent within a reasonable time, it may, (i) order the defendant committed to an institution authorized to receive such persons for a period not exceeding the earlier of six (6) months, or (ii) make any other order appropriate to the circumstances.
(D) The court may order any person responsible for the defendantís treatment under Rules 19(d)(2)(B)(i) and 19(d)(2)(C) to submit periodic reports on the defendantís status to the court, the prosecutor, and the defendantís counsel or the defendant pro se.
19(e) Subsequent Hearings on Competency to Stand Trial.
(1) The court shall hold a hearing to redetermine the defendantís competency:
(A) Upon receiving a report from an authorized official of the institution in which a defendant is hospitalized under Rule 19(d)(2)(B)(i) or 19(d)(2)(c) stating that in his opinion the defendant has become competent to stand trial; or
(B) Upon motion of the defendant; or
(C) At the expiration of the maximum period set by the court.
(2) Finding of Competency. If the court finds that the defendant is competent, the regular proceedings shall commence again without delay, the defendant being entitled to repeat any proceeding if there are reasonable grounds to believe he has prejudiced by his previous incompetency.
(3) Finding of Continuing Incompetency. If the court finds that the defendant is still incompetent, it shall proceed in accordance with Rules 19(d)(2)(B) and 19(d)(2)(C).
(4) Dismissal of Charges. The court may in its discretion dismiss the charges against any defendant adjudged incompetent at any time. Upon dismissal of the charges, the defendant shall be released from custody unless the court finds that his condition warrants civil commitment.
(1) General Restrictions. No evidence of any kind obtained under this Rule shall be admissible at any proceeding to determine guilt or innocence unless the defendant presents evidence intended to rebut the presumption of sanity.
(2) Privileged Statements of the Defendant.
(A) No statement of the defendant obtained under these provisions, or resulting evidence concerning the events, which form the basis of the charges against him, shall be admissible at the trial of guilt or innocence or at any subsequent proceeding to determine guilt or innocence, without his consent.
(B) No statement of the defendant or resulting evidence obtained under these provisions, concerning any other events or transactions, shall be admissible at any proceeding to determine his guilt or innocence of criminal charges based on such events or transaction.
RULE 20. Waiver of Rights.
Unless otherwise specifically provided by law, the defendant may waive any substantive or procedural right. The court shall accept the waiver if it is satisfied that the waiver is intelligently, knowingly, and voluntarily made.
RULE 21. Pleas.
21(a) Alternatives. A defendant may plea guilty, not guilty, or no contest with permission of the court. A no contest plea shall be treated by the court as a plea of guilty for purposes of sentencing. Silence, nods, and refusals to plead shall be entered as pleas of no guilty.
21(b) Acceptance of Plea. The court shall accept a plea of guilty or no contest upon determining that the plea is voluntary and not the result of force, threats, or promises, apart from a plea bargain.
21(c) Withdrawal of a Guilty Plea. A defendant may not withdraw a plea of guilty unless the defendant makes a showing to the district court that the plea of guilt was the result of duress, or was in any way not voluntary.
RULE 22. Plea Agreements.
22(a) Procedure. The prosecutor, and defense counsel or the defendant pro se may engage in discussion for the purpose of entering into a plea agreement. The court shall not participate in any such discussions. The plea agreement shall be in writing and accepted by the court before any actions are taken pursuant to the agreement. The victim may participate in plea agreement discussions.
22(b) Revocation. A plea agreement may be revoked by any party prior to its acceptance by the court.
22(c) Determining the Accuracy of the Agreement and the Voluntariness and
Intelligence of the Plea. The parties shall file the agreement with the court. The court shall question the defendant personally to determine that the defendant understands the plea agreement and agrees to its terms and that it contains all the terms of the agreement.
22(d) Acceptance of Plea. After making such determinations, the court shall either accept or reject the tendered negotiated plea. The court shall not be bound by any provision in the plea agreement regarding the sentence or the terms and conditions of probation to be imposed, if, after accepting the agreement and reviewing a presentence report, it rejects the provisions as inappropriate.
22(e) Rejection of Plea. If an agreement or any provision thereof is rejected by the court, it shall give the defendant an opportunity to withdraw his plea, advising him that if he permits his plea to stand, the disposition of the case may be less favorable to him than that contemplated by the agreement.
22(f) Disclosure and Confidentiality. When a plea agreement or any term is accepted, the agreement or such term shall become part of the record. However, if no agreement is reached, or if the agreement is revoked, rejected by the court, or withdrawn or if the judgment is later vacated or reversed, neither the plea discussion nor any resulting agreement, plea or judgment, nor statements made at a hearing on the plea, shall be admissible against the defendant in any criminal or civil action or administrative proceeding.
22(g) Withdrawal of Plea under a Plea Agreement. The court, in its discretion, may allow withdrawal of a plea of guilty or no contest under a plea agreement when necessary to correct a manifest injustice. Upon withdrawal, the charges against the defendant as they existed before any amendment, reduction or dismissal made a part of a plea agreement, shall be reinstated automatically.
RULE 23. Deferred Prosecution.
23(a) Application for Suspension Order.
(1) Whenever after the filing of a complaint, but prior to a plea of guilty or trial, the prosecutor determines that it would serve the ends of justice to suspend further prosecution of a defendant for participation in a deferred prosecution program, the prosecutor may make a written motion to the court for suspension of prosecution.
(2) The motion of the prosecutor shall set forth facts showing that the defendant shall be allowed to participate in a deferred prosecution program, and a written consent signed by the defendant and his counsel, if any, agreeing to the participation by the defendant in the program shall be filed with the motion. The program shall be described in detail.
(3) After the filing of a motion by the prosecutor as provided in this Rule, the court may order that further proceedings be suspended. If the defendant is in custody, the court may order him released.
(4) Restitution or Reparation Agreement. A suspension order may be the result of or reflect discussions among the prosecutor, the victim, the defense counsel or the defendant pro se resulting in a restitution or reparation agreement.
(5) An Order deferring prosecution under this Rule shall toll any speedy trial objection by the defendant.
23(b) Resumption of Prosecution.
(1) If the prosecutor reasonably believes that the defendant has not fulfilled any or all the conditions of the deferred prosecution program, he may file a motion to revoke suspension. The affidavit setting forth facts supporting the motion shall be attached.
(2) If the motion is granted, the court shall vacate the order suspending prosecution and order that the prosecution of the defendant be resumed.
(3) After prosecution is ordered resumed the defendant shall be tried on the original charges.
23(c) Dismissal of Prosecution. If the defendant satisfactorily completes the terms of the deferred prosecution program, the court, upon motion of a party, shall order the charges dismissed with prejudice.
RULE 24. General Standards.
24(a) Materials Not Subject to Disclosure.
(1) Work Product. Disclosure shall not be required of legal research or of records, correspondence, reports or memoranda to the extent that they contain the opinions, theories or conclusions of the prosecutor or members of his legal or investigative staff, or of defense counsel or his legal or investigative staff.
(2) Informants. Disclosure of the existence of an informant or of the identity of an informant who will not be called to testify shall not be required where disclosure would result in substantial risk to the informant or to his operational effectiveness, provided the failure to disclose will not infringe the civil rights of the accused.
24(b) Failure to Call a Witness or Raise a Defense. The fact that a witness whose name is on a list furnished under this Rule is not called to testify, or that a matter contained in the notice of defenses is not raised, shall not be commented upon at the trial, unless the court on motion of a party, allows such comment after finding that the inclusion of the witnessí name or the defense constituted an abuse of the applicable disclosure rule.
24(c) Use of Materials. Any materials furnished to counsel pursuant to this Rule shall not be disclosed to the public but only to others to the extent necessary to the proper conduct of the case.
24(d) Continuing Duty to Disclose. If at any time after a disclosure has been made, any party discovers additional information or material, which would be subject to disclosure, had it then been known, such party shall promptly notify all other parties of the existence of such additional material and make an appropriate disclosure.
RULE 25. Disclosure by Navajo Nation.
25(a) Notice to Defendant of Witness. At the time of arraignment of a defendant, the prosecution shall give to the defendant a list of the witnesses with their addresses, which the prosecution intends to use against him. No other witnesses shall be allowed to testify against him except on notice to the defendant and with permission of the court.
25(b) Matters Relating to Guilt, Innocence or Punishment. No later than ten (10) days after the arraignment, the prosecutor shall make available to the defendant for examination and reproduction the following material and information within the prosecutionís possession or control:
(1) All statements of the defendant and of any person who will be tried with the defendant;
(2) The names and addresses of experts who have personally examined the defendant or any evidence in the particular case, together with the results of physical examinations and of scientific tests, experiments or comparisons including all written reports or statements made by such experts in connection with the particular case.
(3) A list of all papers, documents, photographs or tangible objects which the prosecution will use at trial or which were obtained from or purportedly belonged to the defendant.
(4) A list of all prior convictions of the defendant which the prosecutor will use at trial;
(5) A list of all prior acts of the defendant which the prosecutor intends to use to prove motive, intent, knowledge, or otherwise use at trial.
(6) All material or information, which tends to mitigate or negate the defendantís guilt as to the offense charged, or which would tend to reduce his punishment thereof, including all prior convictions of witnesses whom the prosecutor expects to call at trial.
25(c) Possible Collateral Issues. Within ten (10) days from the date of arraignment the prosecutor shall make available to the defendant information as to whether there was any electronic surveillance of the defendant, or of the defendantís business or residence; whether a search warrant has been executed in connection with the case; and whether or not the case has involved an informant.
25(d) Additional Disclosure Upon Request and Specification. The defendant may request additional disclosure from the prosecution by a motion. Any such motion shall specify the nature of the additional disclosure and the need.
25(e) Extent of Prosecutorís Duty to Obtain Information. The prosecutorís obligation under this Rule extends to material and information in the possession or control of members of his staff and of any other persons who have participated in the investigation or evaluation of the case and who are under the prosecutorís control.
25(f) Statement of Compliance. Not less than twenty (20) days prior to trial, the prosecutor shall file with the court a statement of compliance stating that the prosecutor has fully met his disclosure obligations under this Rule.
RULE 26. Disclosure by the Defendant.
26(a) Pretrial Examination of Defendant. Upon written request by the prosecutor to the defendant or his counsel, the prosecutor may seek a pretrial examination of the defendant as to any matter, which is permissible. Such a request by the prosecutor shall specify the nature of the examination and a copy of the request shall be filed with the court.
26(b) Notice of Affirmative Defenses. Within twenty (20) days from the date of arraignment, the defendant shall serve notice to the prosecutor of the affirmative defenses to the charge(s). Such affirmative defenses include, but are not limited to: alibi, entrapment, and other defenses allowed by law. The notice of defenses shall be accompanied by a list of those witnesses that the defendant will call as witnesses at trial in support of each noticed affirmative defense.
RULE 27. Depositions.
27(a) Availability. Upon motion of any party or a witness, the court may, upon a showing of good cause by the moving party, order the examination of any person except the defendant upon oral deposition.
27(b) Manner of Taking. Any depositions allowed under this Rule shall be taken in the manner as provided in the Navajo Rules of Civil Procedure. The defendant shall have the right to be present at any such deposition unless defendant waives the right to presence as provided in these Rules.
27(c) Use. Depositions may be used in the manner provided for under the Navajo Rules of Evidence.
RULE 28. Sanctions.
28(a) Types of 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 any provisions of this Rule or any order issued pursuant thereto, the court may impose any sanction which it finds just under the circumstances, including, but not limited to:
(1) Ordering disclosure of the information not previously disclosed;
(2) Granting a continuance;
(3) Holding a witness, party, or counsel in contempt;
(4) Precluding a party from calling a witness, offering evidence, or raising a defense not disclosed; and
(5) Declaring a mistrial when necessary to present a miscarriage of justice.
28(b) Defendantís Failure to Comply. If the defendant fails to comply with Rule 26, the prosecution need make no further disclosure except material or information, which tends to mitigate or negate defendantís guilt as to the offense charged, as set forth in Rule 25(b)(6).
VII. PRETRIAL MOTION PRACTICE.
RULE 29. General Provisions.
29(a) Scope of Rule. This Rule shall govern the procedure to be followed between arraignment and trial unless specifically provided by another rule.
29(b) Motions to Be Made Within Fifteen Days of Arraignment. The following motions must be made within fifteen (15) days following arraignment or will be deemed waived:
(1) Motion for Change of Venue;
(2) Demand for Jury Trial;
(3) Motions relating to conditions of pretrial release;
(4) Motion to Dismiss for defects in the complaint;
(5) Motion to Amend the Complaint.
29(c) Motions to Be Made Twenty-Days Before Trial. The following motions must be made at least twenty (20) days before trial or will be deemed waived[;] unless good cause is shown for a different time period.
(1) All discovery motions.
(2) Motion for Severance.
(3) Motion to Disqualify the Judge.
(4) Motion to Name Additional Witnesses.
(5) Motion based on Denial of a Speedy Trial.
(6) All pretrial evidentiary motions, including Motions to Suppress.
(7) A motion raising the lack of mental capacity.
29(d) Rebuttal of Presumptions on Waiver. All the presumptions on waiver because of untimeliness may be rebutted by the moving party showing good cause why the motion was not timely made and why granting the late motion will be in the interest of substantial justice.
29(e) Motions for Continuance. Motions for continuances may be granted for good cause shown. A motion for continuance filed less than ten (10) days before trial will not be considered unless unforeseenable or exigent circumstances are shown and the moving party did not unreasonably delay in seeking the continuance.
29(f) Withdrawal of Counsel. Whenever counsel has once appeared either in open court or by pleading to represent a defendant, such counsel shall be responsible to the court for his actions and shall not be allowed to withdraw from the case except by order of the court upon written motion naming new counsel and stating good cause with notice to the defendant. Any entry of appearance made by counsel shall be deemed a general entry of appearance.
29(g) Motions Challenging Jurisdiction. Motions challenging the jurisdiction of the court or otherwise raising substantive rights secured by law which are not otherwise referred to in this Rule, may be raised at any time before judgment is entered.
29(h) Response to Motions. All motions may be answered in writing within ten (10) days from service upon a party opponent.
RULE 30. Procedure on Pretrial Motions to Suppress Evidence.
30(a) Defendant Represented by Counsel. Where a defendant is represented by counsel, the defendant shall make a Motion to Suppress Evidence at least twenty (2) days before the date of trial. Such a motion and accompanying memorandum must be served on the prosecutor. The prosecutor shall have ten (10) days to respond to the Motion to Suppress, and such response may be served upon defendantís counsel by mail.
30(b) Defendant without Counsel. Whenever an issue concerning the violation of the civil rights of a defendant by the use of specific evidence arises before trial, and the defendant is not represented by counsel, the court shall inform the defendant that:
(1) He may, but need not, testify at a pretrial hearing on the circumstances surrounding the acquisition of the evidence.
(2) If he does testify at the hearing, he will be subject to cross-examination;
(3) If he does testify at the hearing, he does not waive his right to remain silent during the trial; and
(4) If he does testify at the hearing, neither this fact nor his testimony at the hearing shall be mentioned to the trial jury unless he testifies at trial concerning the same matters.
RULE 31. Pretrial Conference.
31(a) Pretrial Order. The court may order a pretrial conference on any pending criminal matter, but where the defendant has requested trial by jury, the court shall order a pretrial conference.
31(b) Issues Addressed. If a pretrial conference is ordered, the following issues may be addressed:
(1) Outstanding pretrial motions;
(2) Stipulations of fact or particular legal issues to be tried;
(3) Jury instructions to be given at trial.
31(c) Additional Issues Addressed. The court may identify other issues to be resolved at the pretrial conference. Where issues at the pretrial conference go beyond those set forth in Rule 31(b), the court shall give notice to the prosecutor and to counsel for the defendant of those issues to be resolved at the time the notice of pretrial conference is sent out by the court.
31(d) Mandatory when Jury Trial Requested. When a request for a jury trial is made, a pretrial conference shall be scheduled at the time of the request. The pretrial conference shall be held no less than twenty (2) days after the request for jury trial.
(1) At the pretrial conference the prosecutor and the defendant shall:
(A) Finalize the list of witnesses to be called at the trial. After the pretrial conference, no additions to the list shall be allowed except upon a showing to the court that the existence of the witness or the content of the witnessesí proposed testimony could not have been discovered earlier;
(B) Finalize the list of exhibits and mark them for identification;
(C) Specify what pretrial motions will be filed;
(D) Determine whether there will be a plea bargain. If a plea bargain is entered, no jury trial shall be scheduled. If a plea bargain is not entered at the pretrial conference, the court shall not consider any plea bargain agreement thereafter including the date of the jury trial;
(E) Make any motions for pretrial diversion.
(2) At the pretrial conference, the prosecutor shall make any motions to dismiss any or all charges.
(3) If the prosecutor fails to attend the pretrial conference or fails to submit the information required above, the court shall dismiss the case.
(4) If the defendant fails to attend the pretrial conference, the court shall issue a bench warrant.
RULE 32. Dismissal of Prosecution.
32(a) Dismissal. The court shall enter an order dismissing a case if the prosecutor files for dismissal of the complaint;
32(b) Dismissal for Lack of Prosecution. Cases may be dismissed by the court for lack of prosecution.
RULE 33. Trial by Jury.
33(a) By Jury. The number of jurors required to try a case and render a verdict shall be as provided by law.
33(b) Withdrawal of Jury Trial Demand. The defendant may withdraw his demand for trial by jury with consent of the prosecution and the court.
(1) Voluntariness. Before accepting a withdrawal the court shall address the defendant personally, advise him of his right to a jury trial and ascertain that the withdrawal is knowingly, voluntarily, and intelligently made.
(2) Form of Withdrawal. A withdrawal of jury trial demand under this Rule shall be made in writing or in open court on the record.
RULE 34. Obtaining Jurors.
34(a) The Procedure for Obtaining Jurors. The clerk of the court shall mail juror questionnaires once every six (6) months for the purpose of establishing a pool of qualified and available Navajo and non-Navajo jurors. The mailing shall go only to eligible people. No employees of the Judicial Branch shall be called to serve as jurors. Jurors shall respond to juror questionnaires within fifteen (15) days from the date of the juror questionnaires are mailed, and jurors shall be informed on the face of the questionnaire that failure to respond may subject the potential juror to citation for contempt of court. The juror questionnaires shall form the basis for the clerk to issue summonses as needed for jury trials. The clerk shall issue juror summonses for the likely number of persons need to be called to provide juries for the requested jury trials for any given month. These summonses shall be served by the Navajo Police or by certified mail.
34(b) Maintenance of Jury List. The clerk of the court shall maintain the juror questionnaires and the names of jurors summoned in the office of the clerk for review by the prosecution and by the defense.
RULE 35. Jury Selection.
35(a) Swearing in Panel. All members of the panel staff affirm that they will answer truthfully all questions concerning their qualifications.
35(b) Calling a Full Jury Box. The court shall then call to the jury box a number of jurors equal to the number to be selected. The court may call a sufficient number of jurors to allow for alternates.
35(c) Examination by the Court. The court shall initiate the examination of jurors by identifying the parties and their counsel, briefly outlining the nature of the case, and explaining the purposes of the examination. The court shall then ask any questions which it thinks necessary to determine the prospective jurorís qualifications to serve in the case on trial.
35(d) Examination by Counsel. The counsel for the prosecution and the defense shall examine the jurors under the supervisions of the court. The court may limit the number of questions or the time for examination by counsel. The court may allow one or more jurors to be examined apart from other jurors.
35(e) Scope of Examination. The examination of the prospective jurors shall be limited to inquiries as to the basis for challenges for cause or to information sufficient to enable the parties intelligently to exercise their peremptory challenges.
35(f) Challenges for Cause. At any time that cause for disqualifying a juror appears, the court shall excuse the juror and call another member of the panel to the jury box. Challenges for cause shall be made out of the hearing of jurors, but challenges and decisions made on them shall be recorded by the clerk.
35(g) Exercise of Peremptory Challenges. The prosecution shall have three (3) peremptory challenges, and the defense shall have three (3) peremptory challenges. The parties may exercise their peremptory challenges throughout the examination of the jurors.
35(h) Selection of Jury. When a member equal to the number to constitute the jury plus the alternates, if any, have been selected and the peremptory challenges have been closed, these shall constitute a jury.
35(i) Selection of Alternates. Just before the jury retires to begin deliberations, the clerk shall by lot determine the juror or jurors to be designated as alternates. The alternates, where utilized, shall not retire for deliberation unless one of the regular jurors is incapacitated during the course of the deliberations.
RULE 36. Preparation of Jurors.
36(a) Oath. Each juror shall take the following oath:
ďDo you affirm that you will give careful attention to the proceedings, abide by the courtís instructions, and render a verdict in accordance with the law and evidence presented to you?Ē
36(b) Preliminary Instructions. Immediately after the jury is sworn, the court shall instruct the jury concerning its duties, its conduct, the order of proceedings and the basic legal principles that will govern the proceedings.
RULE 37. Conduct of Trial.
37(a) Order of Proceedings. The trial shall proceed in the following order unless otherwise directed by the court:
(1) The complaint shall be read and the plea of the defendant stated.
(2) The prosecutor may make an opening statement.
(3) The defendant may then make an opening statement or may defer such opening statement until the close of the prosecutionís evidence.
(4) The prosecutor shall offer the evidence in support of the complaint.
(5) The defendant may then make an opening statement, if it was deferred, and offer evidence in defense.
(6) Evidence in rebuttal shall then be offered.
(7) The parties may present arguments, the prosecutor having the opening and closing.
(8) The judge shall then instruct the jury if it is a trial by jury.
With the courtís permission, the parties may agree to any other order of proceeding.
37(b) Subpoenas. Subpoenas shall be requested and issued in the same manner as in civil actions.
RULE 38. Separation and Detention of Jurors.
The court may permit jurors to separate or, on motion of any party, may require them to be sequestered in charge of a proper officer whenever they leave the jury box. The court shall admonish the jurors not to converse among themselves or with anyone else on any subject connected with the trial, or to permit themselves to be exposed to news accounts of the proceedings, or to form or express any opinion thereon until the action is finally submitted to them. No contact either with the parties or their counsels or their witnesses shall be allowed. If the jurors are permitted to separate, they shall also be admonished not to view the place where the offense allegedly was committed.
RULE 39. Judgment of Acquittal.
39(a) Before Verdict. On motion of a defendant or on its own initiative, the court shall enter a judgment of acquittal of one or more offenses charged in a complaint after the evidence on either side is closed if there is no evidence on either side is closed if there is no evidence shown beyond a reasonable doubt to warrant a conviction. The courtís decision on a defendantís motion shall not be reserved, but shall be made immediately.
39(b) After Verdict. A motion for judgment of acquittal made before verdict may be renewed by a defendant immediately after the return of the verdict.
RULE 40. Instructions.
40(a) Applicable Procedure. The procedure relating to instructions to the jury in civil actions shall apply to criminal actions, except as otherwise provided.
40(b) Requests for Instructions and Forms of Verdict. At the close of the evidence or at such earlier time as the court directs, counsel for each party shall submit to the court his written proposed instructions and proposed forms of verdict and shall furnish copies to the other parties.
RULE 41. Rulings on Instructions and Forms of Verdict.
41(a) Conference. The court shall confer with counsel and inform them of its proposed action upon requests for instructions and forms of verdict prior to final argument to the jury.
41(b) Duty of Court. The court shall not inform the jury as to which instructions, if any, are included at the request of a particular party.
41(c) Waiver of Error. No party may assign as error on appeal the courtís giving or failure to give any instruction or portion thereof or to the submission or the failure to submit a form of verdict unless said party objects thereto before the jury retires to consider its verdict, stating distinctly the matter objected to and the grounds of the objection.
RULE 42. Deliberations.
42(a) Retirement. The jurors shall then retire in the custody of the court officer and promptly elect a foreperson and consider their verdict.
42(b) Permitting the Jury to Disperse. The court may permit the jurors to disperse after their deliberations have commenced, instructing them when to reassemble, and giving the admonitions of Rule 38.
RULE 43. Materials Used During Deliberations.
Upon retiring for deliberation the jurors shall take with them:
(a) Forms of verdict approved by the court:
(b) All written or recorded instructions given by the court;
(c) Such tangible evidence as the court may direct.
RULE 44. Further Review of Evidence and Additional Instructions.
After the jurors have retired to consider their verdict, if they desire to have any testimony repeated, or if they or any party request additional instructions, the court may recall them to the courtroom and order the testimony read or give appropriate additional instructions. The court may also order other testimony read or give other instructions, so as not to give undue prominence to the particular testimony or instructions requested. Such testimony may be read or instructions given only after notice to the parties.
RULE 45. Discharge.
The court shall discharge the jurors when:
(a) Their verdict has been recorded;
(b) Upon expiration of such time as the court deems proper, it appears that there is no reasonable probability that the jurors can reach a unanimous verdict; or
(c) A necessity exists for their discharge.
RULE 46. Verdict.
46(a) Verdict in Writing. A verdict of the jury shall be in writing, signed by the foreperson and returned to the judge in open court.
46(b) General Verdicts. Except as otherwise specified in this Rule, the jury shall in all cases render a verdict finding the defendant either guilty or not guilty.
46(c) Insanity Verdicts. When the jury determines that a defendant is not guilty by reason of insanity, the verdict shall so state.
46(d) Different Offenses. If different counts or offenses are charged in the complaint(s), the verdict shall specify each count or offense of which the defendant has been found guilty or not guilty.
46(e) Multiple Defendants. If there is more than one defendant, separate verdicts shall be returned for each defendant.
46(f) Poll. After the verdict is returned and before the jury is discharged, it shall be polled at the request of any party or upon the courtís own initiative. If the responses of the jurors do not support the verdict, the court may direct them to retire for further deliberations or they may be discharged.
IX. POST-VERDICT PROCEEDINGS.
RULE 47. Post-Trial Motions.
47(a) Motion for New Trial.
(1) New Trial. When the defendant has been found guilty by a jury or by the court, the court on motion of the defendant, or on its own motion, may order a new trial.
(2) Timeliness. A motion for a new trial shall be made no later than ten (10) days after the verdict has been rendered.
(3) Grounds. The court may grant a new trial for any of the following reasons:
(A) The verdict is contrary to law or to the evidence.
(B) The prosecutor has been guilty of misconduct.
(C) The juror or jurors have been guilty of misconduct by:
(i) Receiving evidence not properly admitted during the trial;
(ii) Deciding the verdict by lot;
(iii) Perjury or willfully failing to respond truthfully to a direct question posed during the examination;
(iv) Receiving a bribe or pledging his vote in any other way;
(v) Becoming intoxicated during the course of the deliberations; or
(vi) Conversing before the verdict with any interested party about the outcome of the case.
(D) The court has erred as a matter of law, or in the instructions of the jury on a matter of law to the substantial prejudice of a party.
(E) For any reason not due to the defendantís fault, the defendant has not received a fair or impartial trial.
(4) Admissibility of Juror Evidence to Impeach the Verdict. When the validity of a verdict is challenged under Rule 47(a)(3)(C), the court may receive the testimony or affidavit of any witness, including members of the jury, relating to the misconduct of a juror, court official, or third person. No testimony or affidavit shall be received which inquires into the subjective motives or mental processes which led a juror to assent or dissent from the verdict.
47(b) Motion to Vacate Judgment.
(1) Grounds for Motion. The defendant may, within ten (10) days after sentencing, move to vacate the judgment upon grounds that:
(A) The court was without jurisdiction; or
(B) Newly discovered material facts exist;
(C) The conviction was obtained contrary to law.
47(c) Notice to Supreme Court. If a party files a post trial motion after having previously filed a notice of appeal, the party shall immediately send a copy of the motion to the clerk of the Navajo Nation Supreme Court.
RULE 48. Clerical Mistakes.
Clerical mistakes in judgments, orders, or other parties of the record, and errors in the record arising from oversight or omission, may be corrected by the court at any time upon notice to the parties.
RULE 49. Procedure After Verdict of Finding of Not Guilty by Reason of Insanity.
When the court or jury finds a defendant not guilty by reason of insanity, the trial court may order the prosecutor to commence civil commitment proceedings against the defendant according to law. The court and parties may consider the sufficiency of testimony at trial on the issues relevant to civil commitment in determining the need for further examinations under the law.
RULE 50. Sentence and Judgment--Upon Conviction.
50(a) Sentence. Sentence shall be imposed without unreasonable delay.
(1) Before imposition of sentence the defendant shall be permitted to make a statement in his own behalf and to present any information, including hearsay evidence, in mitigation. The defendantís counsel and the prosecutor shall also be allowed to speak.
(2) The court may set a date and time for sentencing and direct that a presentence report be prepared and submitted to the court by the Probation and Parole Officer.
(3) The presentence report shall contain any prior criminal record of the defendant and other information as the court may direct. The defendant shall be given a copy of the report prior to sentencing and the defendant shall be permitted to comment on it.
(4) Pending sentence, the court may continue bail or may commit the defendant.
Factors to be considered by a sentencing court pursuant to Title 17 would be contained in a presentence report, which is therefore mandated. Baker v. Greyeyes.
How multiple sentences are to run must be determined and conveyed to both the defendant and Department of Corrections at the time of sentencing, otherwise they are presumed to run concurrently. The duty of a court to be clear is expressed in the traditional law that those in authority must respectfully regulate with clarity, TíŠadoo ałkíehůlůnŪ Kíť bee ŪŪshjŠnŪgo
. Baker v. Greyeyes.
50(b) Judgment. A judgment of conviction shall state the charge, the plea, the verdict, and the sentence. The judgment shall be signed by the judge and entered in the official records by the clerk.
50(c) Notification of Right to Appeal. After imposing sentence in a case, which has gone to trial on a plea of not guilty, the court shall inform the defendant of his right to file an appeal.
50(d) Modification of Sentence. Upon motion the court may correct any unlawful sentence or one imposed in an unlawful manner within twenty (20) days after the entry of sentence.
50(e) Re-Sentencing. Where a judgment or sentence, or both, have been set aside on appeal, by collateral attack or on a post-trial motion, the court may not impose a sentence for the same offense, or a different offense based on the same conduct, which is more severe than the prior sentence unless it concludes, on the basis of evidence concerning conduct by the defendant occurring after the original sentencing proceeding, that the prior sentence is in appropriate.
RULE 51. Order of Commitment.
If the sentence of the court is not suspended or the defendant is not placed on probation, or a fine is not paid, the court shall order the defendant committed until the defendant has satisfied the sentence according to law.
RULE 52. Probation and Parole.
52(a) Probation. After conviction, and prior to actual incarceration, the defendant may be placed on probation as provided by law.
52(b) Parole. After conviction and a period of actual incarceration, a defendant may be placed on parole as provided by law.
52(c) Imposition of Probation or Parole. The court may impose conditions on probation/parole to promote as a priority, education and rehabilitation. In addition, the probation officer may place regulations on the probation/parole to implement the conditions imposed by the court and not inconsistent with them. All conditions and regulations shall be in writing singed by the probationer/parolee and the probation officer and a copy given to the probationer/parolee.
52(d) Modification and Clarification of Conditions and Regulations. The court may modify any condition, which it has imposed and any regulation imposed by a probation officer. A probation officer may also modify or clarify any regulation. A probationer/parolee or a probation officer, at any time prior to absolute discharge, may request the court to modify or clarify any condition or regulation. A written copy of any modification or clarification shall be given to the probationer/parolee.
52(e) Early Termination of Probation/Parole. At any time during the term of probation/parole, upon motion of the prosecutor or on motion of the court, the court, after notifying the prosecutor, may terminate probation/parole and discharge the probationer/parolee.
52(f) Order and Notice of Discharge. Upon expiration or early termination of a term of probation/parole, the court shall order the probationer/parolee to be discharged, and the clerk of the court shall give the probationer/parolee a certified copy of the order of discharge.
RULE 53. Petition and Summons to Revoke Probation/Parole.
53(a) Petition to Revoke Probation/Parole. If there is a reasonable cause to believe that a probationer/parolee has violated a written condition or regulation of probation/parole, the probation officer responsible for the probationerís/paroleeís conduct may recommend to the prosecutor to file a petition with the court to revoke probation/parole.
53(b) Issuance of Summons or Arrest Warrant. After a petition to revoke probation/parole has been filed by the prosecutor, the court may issue a summons directing the probationer/parolee to appear for a revocation hearing. If the petition on its face shows probable cause to believe that the probationer/parolee will not appear in response to the summons, the court may issue a warrant for the probationerís/paroleeís arrest.
53(c) Contents of Summons and Service. The summons must state the essential facts constituting the probation/parole violation, orders the defendant to appear at a specified time and place for an initial appearance, and be served by delivering a copy to the defendant personally or mailed to him by certified mail.
RULE 54. Proceedings at the Initial Appearance of Probationer/Parolee.
54(a) Initial Appearance. At the initial appearance, the court shall address the probationer/parolee personally and shall determine that the probationer/parolee understands the following:
(1) The nature of the violation of the terms of probation/parole alleged;
(2) The right to counsel if the probationer or parolee is not represented by counsel;
(3) The right to cross-examine witnesses who testify against him;
(4) His right to present witnesses in his behalf;
(5) The Navajo Nation must prove the violation unless he admits it;
(6) If the alleged violation involved a criminal offense for which he has not yet been tried, the probationer/parolee shall be advised that regardless of the outcome of the present matter, he may still be tried for that offense, and any statement made by him regarding the present matter may be used to impeach his testimony at the trial.
The probationer/parolee shall then be allowed to either admit or deny the alleged violations.
54(b) Waiver of Rights and Admission. If the probationer/parolee wishes to waive his rights under Rule 54(a) and admit the violations, the court shall determine that his admission is voluntary and not the result of force, threats or promises, and that there is a factual basis for the admission.
54(c) Scheduling Revocation Hearing. If the probationer/parolee denies the allegations of violations, the court shall set a date and time for the revocation hearing unless:
(1) the probationer/parolee does not desire time to prepare a reasonable defense, evidence or witnesses, and either has counsel or makes waiver of counsel; and
(2) the Navajo Nation is read to proceed with its evidence.
54(d) Initial Appearance after Arrest. When a probationer/parolee is arrested on a warrant, his probation officer shall be notified immediately, and the probationer/parolee shall be taken without unreasonable delay before the court for an initial appearance.
54(e) Detention after Initial Appearance. If the court does not release the probationer/parolee following the initial appearance pending a revocation hearing, the revocation hearing shall [b]e held no more than seven (7) days after the initial appearance.
RULE 55. Revocation Hearing.
55(a) Hearing Procedure.
(1) A hearing to determine whether a probationer/parolee has violated a written condition or regulation of probation/parole shall be held before the court no less than seven (7) days and no more than twenty (20) days after the initial appearance, unless the court, upon the request of the probationer/parolee, made in writing or in open court on the record, sets the hearing for another date.
(2) The probationer/parolee shall be present at the hearing.
(3) Each party may present evidence and shall have the right to cross-examine witnesses who testify.
(4) If the court finds a violation of a condition or regulation of probation/parole, it shall make specific findings of fact, which establishes the violation.
55(b) Non Appearance of Probationer/Parolee. If the probationer/parolee fails to appear at the time set for the hearing and the court is satisfied that reasonable efforts have been made to give the probationer/parolee notice, it may:
(1) Hearing evidence in support of each allegation of violation;
(2) Make specific findings of each violation; and
(3) Revoke probation or parole.
55(c) Record. A verbatim record of the initial appearance, violation hearing, and disposition shall be made.
RULE 56. Revocation of Probation or Parole in Probationís/Paroleeís Absence.
56(a) Petition. If there is reasonable cause to believe that a probationer/parolee has violated a written condition or regulation of probation/parole and the probationerís/paroleeís whereabouts are not known, the probation officer responsible for the probationerís or paroleeís conduct may recommend to the prosecutor to file a petition to revoke probation/parole in the probationerís/paroleeís absence. The petition shall be verified and shall include:
(1) Each violation of the conditions and regulations of probation/parole;
(2) An allegation that the whereabouts of the probationer/parolee is unknown;
(3) Efforts made to locate the probationer/parolee; and
(4) The probationerís/paroleeís last known address.
56(b) Revocation Hearing. If the court finds the petition to be sufficient and finds that the probationer/parolee cannot be located, the court may proceed to a revocation hearing.
RULE 57. Disposition.
If the probationer/parolee admits the violation or the courts finds from the evidence that he committed it, the court may enter revoke, modify or continue probation/parole. If the court revokes probation or parole, the court shall require the probationer/parolee to serve the original sentence plus an additional one-half of the sentence as a penalty for the violation.
X. GENERAL RULES OF CRIMINAL PROCEDURE.
RULE 58. Search and Seizure.
58(a) Authority to Issue Warrant. Upon application of a law enforcement officer or the prosecutor, a search warrant may be issued by any judge of the Navajo Nation.
58(b) Property or Persons Which may be Seized with a Warrant. A warrant may be issued under this Rule to search for and seize any:
(1) Property that constitutes evidence of the commission of a criminal offense; or
(2) Contraband, the fruits of crime, or things otherwise criminally possessed; or
(3) Property intended for use of which is or has been used as the means of committing a criminal offense; or
(4) Person alleged to be a victim of a crime, or for whom an arrest warrant has been issued or for an alleged fugitive from justice.
58(c) Warrant upon Affidavit; Issuance and Content.
(1) No search warrant shall be issued except on probable cause, supported by affidavit, name or describing the person and particular description of the property to be seized and the place to be searched. As used in this Rule, Ďprobable causeí shall be based upon substantial evidence, which may be hearsay in whole or in part, provided there is a substantial basis for believing the source of hearsay to be credible and for believing that there is a factual basis for the information furnished.
(2) Before ruling on an application for a search warrant the judge may require the affiant to appear and may question, under oath, the affiant and witnesses, if any, in a proceeding on record, which shall become part of the affidavit.
(3) The warrant shall be directed to a law enforcement officer of the Navajo Nation, commanding the officer to search, within a specified period of time not to exceed ten (10) days, the person or place named for the person or property specified.
58(d) Execution and Return of Inventory. The officer taking property under the warrant shall give to the person from whom or from whose premises the property was taken a copy of the warrant a receipt for the property taken or shall leave the copy and receipt at the place from which the property was taken. The prosecutor shall upon request deliver a copy of the inventory to the person from whom or from whose premises the property was taken.
58(e) Motion for Return of Property. A person alleging an unlawful search and seizure may move the district court for the district in which the property was seized for the return of the property on the grounds that he is entitled to lawful possession of the property which was illegally seized. The judge shall receive evidence on any issue of fact necessary to the decision of the motion. If the motion is granted the property shall be restored and it shall not be admissible in evidence at any hearing at trial.
58(f) Return of Papers to Clerk. The officer executing the warrant shall attach to the warrant a copy of the return, inventory and all other papers in connection with the warrant, and return them to the prosecutor, who shall file them with the clerk of the court for the district in which the property was seized.
RULE 59. Calendars.
Priority in setting shall be given to criminal proceedings insofar as possible.
RULE 60. Interpreter.
Upon request by the defendant, the victim, or the Navajo Nation, the court may appoint an interpreter. The court may require the party requesting the interpreter to be responsible for any related costs.
RULE 61. Appeal Rule.
61(a) Appeals. An appeal may be taken in the manner provided by the rule of the Navajo Nation Supreme Court for criminal appeals.
61(b) Stay of Execution Pending Appeal. The district court may stay any of the following pending appeal:
(1) Imprisonment. A sentence of imprisonment may be stayed if an appeal is taken and the court may require bail.
(2) Fine. A sentence to pay a fine may be stayed if an appeal is taken. The court may require the defendant pending appeal to deposit all or part of the find and costs with the court, or give bond for such payment.
(3) Probation. As order placing the defendant on probation may be stayed if an appeal is taken.
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