No person shall twice be put in jeopardy for the same offense
under this chapter, nor shall he be compelled in any criminal case
to be a witness against himself. The accused shall have the right
to a speedy and public trial, the right to be confronted with witnesses
against him, the right to assistance of counsel at his own expense
and the right to demand trial by an impartial jury if the offense,
or combination of offenses, charged is punishable by imprisonment;
provided, however, that in the event that the Tribal Prosecutor informs
the Tribal Court before the case comes to trial that a period of imprisonment
will not be sought, a defendant shall have no right to a jury trial.
If the defendant is subsequently convicted of the offense following
a bench trial or plea, the Tribal Court shall not impose a period
of imprisonment for the convicted offense.
A.
Upon request of the defendant or Tribal Prosecutor or upon the Tribal
Court's own initiative, the Tribal Court shall issue subpoenas
to compel the testimony of witnesses or the production of books, records,
documents or other physical evidence relevant to the determination
of the case that does not impose an undue burden on the person possessing
the evidence. An employee of the Tribal Court may act on behalf of
the Tribal Court and issue subpoenas which have been signed by the
Tribal Court Chief Judge.
B.
A subpoena shall bear the signature of the Tribal Court Chief Judge
and shall state the name of the Tribal Court, the name of the person
or description of the physical evidence to be subpoenaed, the title
of the proceeding, and the date, time and place where the witness
is to appear or the evidence is to be produced.
A.
A subpoena may be served at any place within or without the confines
of the Reservation.
B.
A subpoena may be served by any law enforcement officer or other
person appointed by the Tribal Court for such purpose. Service of
a subpoena shall be made by delivering a copy of it to the person
named or by leaving a copy at his usual place of residence or business
with any person of suitable age and discretion who also resides or
works there.
C.
Proof of service of the subpoena shall be filed with the Tribal Court
by noting on the back of a copy of the subpoena the date, time and
place that it was served and noting the name of the person to whom
it was delivered. Proof of service shall be signed by the person who
actually served the subpoena.
In the absence of a justification satisfactory to the Tribal
Court, a person who fails to obey a subpoena may be deemed to be in
contempt of Tribal Court.
A.
Each witness answering a subpoena shall be entitled to a fee of $25
per day for each day the witness's services are required in Tribal
Court, plus the current United States General Services Administration
privately owned vehicle mileage reimbursement rate per mile for travel
to and from the Tribal Court.
[Amended 3-17-2016 by Res. No. 03-17-16-05]
B.
The expenses provided for in this section shall be paid by the Tribe
upon completion of the trial, but such expenses associated with witnesses
called by the defendant may be taxed as costs against the defendant
if he is found guilty, and in such case a judgment for the costs of
witnesses shall be entered against the defendant; provided, however,
that no defendant shall be imprisoned solely because of his inability
to pay such costs.
C.
If the Tribal Court finds that a complaint was not filed in good
faith, but with a frivolous or malicious intent, it may order the
expenditures incurred under this section, and such order shall constitute
a judgment against the complainant.
A.
The prosecution shall present its case first, followed by the defendant.
If rebuttal is required, the prosecution shall proceed first, followed
by the defendant. The Tribe shall prosecute the charge by presenting
the testimony of the law enforcement officer and any other witnesses
who have information that support the charge. In presenting such evidence,
the Tribe may employ a tribal official, professional attorney, or
other approved spokesperson.
B.
All testimony of witnesses shall be given orally under oath in open
Tribal Court and subject to the right of cross-examination. Documentary
and tangible evidence shall also be received in open Tribal Court
and available to the defendant. The Tribal Court shall not be bound
by formal rules of evidence but shall use its own discretion as to
what evidence it deems necessary and relevant to the case.
C.
The defendant may be found guilty of a lesser offense not necessarily
included in the offense charged without the necessity of having been
formally charged with the lesser offense.
D.
Except upon the direction of the Tribal Court Judge when required
to maintain decorum in Tribal Court proceedings, the defendant shall
be present in Tribal Court at every stage of the trial, including
selection of the jury, return of the verdict, and imposition of the
sentence.
E.
The defendant is presumed to be innocent. At the conclusion of the
evidence, the prosecution and defendant each in turn shall summarize
the proof and make final argument, with the prosecution having the
right to speak last.
F.
All records relating to statements or confessions of the defendant
or reports of physical, mental or other scientific tests or examinations
relating to or performed on the defendant when in the possession or
control of the Tribe shall be open to inspection and copying by the
defendant.
A.
Subject to the requirements contained in § 8.8-15 of this chapter, any person accused of a crime punishable by imprisonment shall be granted a jury trial, upon his or her request made at the time of arraignment or by a written request filed with the Clerk of the Tribal Court at least fifteen (15) days before the date set for trial. A jury shall consist of at least six (6) persons selected at random from a list of eligible jurors prepared each year by the Tribal Court that reflects a fair cross section of the community and does not systematically exclude any distinctive group in the community.
[Amended 3-17-2016 by Res. No. 03-17-16-05]
B.
Juries.
[Amended 3-17-2016 by Res. No. 03-17-16-05; 9-21-2017 by Res. No. 09-21-17-10]
(1)
Juries
generally. Eligible jurors are tribal members and other persons who
are permanent residents of the Pine Creek Indian Reservation who rent,
own, or otherwise reside in a dwelling place on the reservation and
persons who arc permanent residents of households residing in Tribally
owned rental housing units located on lands owned by the Tribe within
Calhoun County, Michigan, who has reached the age of 18 years of age,
is of sound mind and discretion, has never been convicted of a felony,
is not a member of the Tribal Council, or a Tribal Court Judge, officer
or employee of the Tribal Court or an employee of the Tribal Police
Department, including any detention center personnel.
(2)
Juries
for special domestic violence criminal jurisdiction. For purposes
of special domestic violence criminal jurisdiction a potential juror
for a special domestic violence criminal jurisdiction case must be
drawn from permanent residents of the Pine Creek Indian Reservation
who rent, own, or otherwise reside in a dwelling place on the reservation,
other persons who are permanent residents of households residing in
Tribally owned rental housing units located on lands owned by the
Tribe in Calhoun County, Michigan, and employees of the Tribal government
whose primary work station is located on lands which are held in trust
for the Band by the United States or located within 100 miles of the
NHBP Pine Creek Indian Reservation located in Fulton, Michigan.
C.
A current roster of at least twenty-five (25) persons who are eligible
for jury duty for juries generally and juries for special domestic
violence criminal jurisdiction shall be prepared and maintained by
the Tribal Court Clerk.
[Amended 3-17-2016 by Res. No. 03-17-16-05; 9-21-2017 by Res. No. 09-21-17-10]
D.
Under the supervision of the Tribal Court Clerk, witnessed by at
least two other adult persons, a panel of jurors shall be drawn by
lot from the jury roster. At trial, jury shall consist of six qualified
jurors selected in a random fashion from a panel of 12 eligible persons
take from the jury roster, none of whom has an interest in the case
or is related as spouse, parent, brother or sister to any of the parties
or their attorneys. If the jury panel is exhausted before a sufficient
number of jurors are selected for the trial jury, additional jurors
shall be drawn by lot from the jury roster from the panel until a
trial jury is selected.
E.
Upon a showing of sufficient hardship, satisfactory to the Tribal
Court Clerk, the following persons, upon their request, may be excluded
from the jury roster and jury panels:
(1)
Persons who reside outside of Pine Creek and more than 150 miles
from the Tribe's administrative offices.
(2)
Persons of such advanced age, infirmity or illness.
(3)
Persons burdened by such other circumstances or subject to such other
demands that jury service would cause extraordinary hardship for them.
Such hardship shall be substantially greater than would be experienced
ordinarily by other persons serving as jurors.
F.
Each member of a designated jury panel shall be served with a summons
signed by the Tribal Court Judge, indicating the place and time that
he or she is first to appear for jury service. The notice shall be
served by the Clerk of the Tribal Court, a member of the Tribal Police
Department, or any other person who may be designated in writing by
the Tribal Court. The notice shall be served not less than seventy-two
(72) hours prior to the designated time for initial appearance. After
such initial appearance, the times and places for attendance by those
persons included on the designated jury panel shall be prescribed
by the Tribal Court.
G.
A person summoned to serve as a juror who has not been excused pursuant
to any provisions of this chapter or by order of Tribal Court, who
fails to appear where and when summoned or who, having so appeared,
absents himself or herself therefrom without the permission of the
Tribal Court, or who renders himself or herself unfit to commence
or continue the duties of a juror may be held in contempt of Tribal
Court. In addition to the penalties for contempt of Tribal Court prescribed
by this chapter, he or she may be charged by the Tribal Court with
any costs incurred by the Tribal Court or by any other persons which
resulted from such failure to be present or from such misconduct.
H.
Each party may question members of the panel of prospective jurors
for the purpose of selecting a trial jury. In criminal cases, in addition
to disqualifying jurors for cause as determined by the Tribal Court
Judge, the prosecution and the defendant, each side shall be entitled
to three peremptory challenges without assigning any cause. Where
there is more than one defendant, they must join in a challenge before
it can be made, unless the Tribal Court, for due cause show, shall
permit otherwise or shall permit each defendant to exercise two peremptory
challenges.
I.
Each member of the jury panel called to service and each juror who
serves upon a jury shall be entitled to compensation at a rate determined
by the Tribal Court. All payment of compensation shall be supported
by vouchers signed by the presiding Tribal Court Judge. Such vouchers
shall be paid in order of presentation from available funds on deposit
for the purpose.
J.
The Tribal Court Judge shall instruct the jury with regard to the
applicable law, and the jury shall decide all questions of fact on
the basis of that law. At the close of evidence or at such earlier
time during the trial as the Tribal Court Judge directs, any party
may file with the Tribal Court Judge written instructions on the law
which the party requests the Tribal Court Judge to deliver orally
to the jury. At the same time, copies of such requests shall be furnished
to the opposing party. The Tribal Court Judge shall inform each party
of his proposed action upon each request prior to the arguments to
the jury, but the Tribal Court Judge shall deliver his instructions
to the jury after arguments are completed. No party may assign as
error any portion of the Tribal Court Judge's charge or any omission
unless he makes his objection and reasons for it before the jury retires
to consider its verdict. Opportunity shall be given to make the objection
out of the hearing of the jury.
K.
After deliberation in private, the jury in criminal cases shall return
to the Tribal Court Judge in open court a verdict of "guilty" or "not
guilty" with respect to each defendant. A verdict of conviction in
criminal cases shall require a unanimous vote of the jury.
