The defendant is presumed innocent. No person will be put in jeopardy twice for the same offense under this chapter, nor will he/she be compelled in any criminal case to be a witness against himself or herself. The defendant will have the right to a speedy and public trial; the right to cross-examine the witnesses against him/her; the right to assistance of counsel at his or her own expense; and the right to demand a trial by an impartial jury if the offense, or combination of offenses charged, is punishable by incarceration. However, in the event that the Tribal Prosecutor informs the Tribal Court before the case comes to trial that a period of incarceration will not be sought, a defendant will 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 may not impose a period of incarceration for the convicted offense.
A.
Upon request of the defendant or Tribal Prosecutor, or upon the Tribal Court's own initiative, the Tribal Court may 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.
B.
A subpoena must bear the signature of the Chief Judge of the Tribal Court and must state the name of the Tribal Court issuing the subpoena, 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 presented.
A.
A subpoena may be served on or off the Tribe's trust land.
B.
A subpoena may be served by a tribal law enforcement officer or other law enforcement officer deputized by the Tribe to enforce tribal law. Service of a subpoena must be made by delivering a copy to the person named or by leaving a copy of the subpoena at his or her 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 must 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 the subpoena was delivered. Proof of service must be signed by the person who actually served the subpoena.
A person who fails to obey a subpoena may be held in contempt of Tribal Court.
A.
Each witness answering a subpoena will be entitled to witness compensation and expense reimbursement as established by the Tribal Court.
B.
The expenses provided for in this section will be paid by the Tribal Court upon completion of the witness' service, but such expenses associated with witnesses called by the defendant may be taxed as costs against the defendant if he or she is found guilty, and in such case, a judgment for the costs of witnesses will be entered against the defendant, provided that no defendant will ever be incarcerated solely based on his or her inability to pay such costs.
A.
The prosecution must present its case first, followed by the defendant. If rebuttal is required, the prosecution will proceed first, followed by the defendant. The Tribe will prosecute the charge by presenting the testimony of witnesses who have information that supports the charge.
B.
All witness testimony will be given orally, under oath, and subject to the right of cross-examination. The Tribal Court may allow telephone testimony, based on necessity. Documentary and tangible evidence will also be received in open Tribal Court and available to the defendant.
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 discretion of a Tribal Court Judge when required to maintain decorum in Tribal Court proceedings, the defendant must be present in the Tribal Court at every stage of the trial, including selection of the jury, return of the verdict, and imposition of the sentence.
E.
At the conclusion of the evidence, the prosecution may give a closing argument followed by the defense, with the prosecution having the right to give a rebuttal to the defense's closing argument.
A.
Subject to the requirements contained in Article V, § 8.3-16 of this chapter, any person accused of a crime when incarceration is sought by the Prosecutor will be granted a jury trial upon his/her request made at the time of arraignment or by a written request filed with the Tribal Court Administrator at least 35 days before the date set for trial.
B.
A jury must consist of at least six tribal citizens selected at random from a list of eligible jurors prepared by the Tribal Court.
C.
The process of identifying potential jurors will begin with a listing of all tribal citizens who are 18 years of age or older and who reside in the Tribe's five-county service area (Allegan County, Barry County, Kalamazoo County, Kent County, Ottawa County).
D.
The following individuals will be excluded from jury duty: those who have been convicted of a felony within the preceding 10 years, unless the felony was incurred protecting the sovereign rights of Indian tribes; those serving on Tribal Council; those who are serving as a Judge, officer, or employee in the Tribal Court; and those who are employees of the Gun Lake Public Safety Department.
E.
The Tribal Court Judge will determine the number of names drawn at random who will be sent juror questionnaires for completion and return to the Tribal Court.
F.
Upon a showing of sufficient hardship, persons burdened by such other circumstances that jury duty would cause extraordinary hardship for them may be excused from jury duty. Such hardship must be substantially greater than would be ordinarily experienced by other persons serving as jurors.
G.
The "jury roster" will consist of those who are on the potential juror list mentioned in § 8.3-27B above who are not excluded or excused.
H.
Under the direction and supervision of the Tribal Court Judge, the number of individual names drawn at random to be summoned for any particular trial from the jury roster will be determined and the listing of such names will comprise the jury pool.
I.
A person summoned to serve as a juror who has not been excused pursuant to any provisions of this chapter or by order of the Tribal Court who fails to appear in accordance to the terms of the summons; who fails to complete and return the jury questionnaire; or who, having appeared, absents himself or herself 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/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.
J.
The jury selection process will begin by selecting six names at random. As potential jurors are excused, an alternate will be called as a replacement.
K.
The Court and each party may question members of the panel of prospective jurors for the purpose of selecting a jury. In addition to disqualifying jurors for cause as determined by the Tribal Court Judge, each side will be entitled to three peremptory challenges without assigning any cause.
L.
Each member of the jury pool called to service and each juror who serves upon a jury will be entitled to compensation at a rate established by the Tribal Court.
M.
The Tribal Court Judge will instruct the jury with regard to the applicable law. The jury will 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 will be furnished to the opposing party. The Tribal Court Judge will inform each party of his/her proposed action upon each request prior to the arguments to the jury, but the Tribal Court Judge will deliver his/her instructions to the jury only after arguments are completed. No party may assign as error any portion of the Tribal Court Judge's charge or any omission unless the party makes his/her objection and reason for it before the jury retires to consider its verdict. Opportunity must be given to make the objection out of the hearing of the jury.
N.
After private deliberation, the jury will return to the Tribal Court Judge in open court a verdict of "guilty" or "not guilty" with respect to each defendant and each charge. A verdict of conviction in criminal cases will require a unanimous vote of the jury.