Chapter 4.04 RULES OF CRIMINAL PROCEDURE

These rules govern the procedure in all criminal proceedings in the Puyallup Tribal Court (“the Court”) and all preliminary, supplementary, and special proceedings as specified in this Code. Every proceeding in which a person is charged with a criminal offense of any degree and subject to a jail sentence is a criminal proceeding. [Res. 100418A (04/10/18)]

4.04.020 Rule 2 – Purpose and construction.

These rules are intended to provide for the just and speedy determination of every criminal proceeding in the Court. These rules must be construed to secure simplicity in procedure, fairness in administration, and the elimination of unjustifiable expense and delay.

These rules are designed to provide a uniform and simplified set of procedures to govern criminal cases before the Court, consistent with the requirements of justice and sound judicial administration. They are meant to supplement and to encourage the application of traditional and customary concepts of the Puyallup Tribe, consistent with concepts of substantial fairness and due process.

These rules must be liberally construed to allow for the discretion of the Puyallup Tribal Court Judge (“Judge”) in pursuing substantial fairness in particular cases. Interpretation and application of these rules must assure, to the greatest degree possible, equal treatment for every defendant brought before the Court regardless of age, sex, race, family ties, or financial status. Where substantive rights are involved the interpretation of these rules must be construed strictly in favor of the defendant. [Res. 100418A (04/10/18)]

4.04.030 Rule 2.1 – Jurisdiction.

Generally. The Court is vested with jurisdiction to enforce all provisions of this Code, as amended from time to time, against any person violating any provision of the Puyallup Tribal Criminal Traffic Code (Chapter 5.08 PTC) or the Puyallup Tribal Criminal Code (Chapter 5.12 PTC) or both within the exterior boundaries of the Puyallup Indian Reservation or other Tribal lands, which includes all usual and accustomed fishing areas reserved and secured to the Puyallup Tribe of Indians under the Medicine Creek Treaty, and against any Tribal member exercising treaty hunting and fishing rights beyond the boundaries of the Puyallup Indian Reservation. The Court is also vested with the power to impose protection orders against non-Indians in accordance with the provisions of this Code. [Res. 100418A (04/10/18)]

4.04.040 Rule 2.2 – Definitions.

Terms not otherwise specifically defined in this Code are defined in the Puyallup Tribal Criminal Traffic Code (Chapter 5.08 PTC) or the Puyallup Tribal Criminal Code (Chapter 5.12 PTC). For purposes of this Code, the following definitions apply:

(a) “Bail” means amount of money set by the Judge which must be posted by a defendant in order to gain their release until trial, or appellate proceedings.

(b) “Bench warrant” means a warrant issued directly by a Judge to a Police Officer for the arrest of a person who has been held in contempt, disobeyed a subpoena, failed to appear for a hearing or trial, or any other lawful reason.

(c) “Bond” means the security given to a corporate surety on behalf of a defendant for the primary purpose of insuring the defendant’s presence in a pending criminal proceeding.

(d) “Complaint” means the document signed by the Prosecutor charging a person with a criminal offense or violation.

(e) “Court Clerk” means the person whose duty it is to establish and maintain dockets and records for the Court, to assist in preparing Court reports, and to carry out any other duties of the Court on behalf of the Judges, as well as assist the public.

(f) “Criminal street gang” means a group of three or more persons who follow common beliefs, code of conduct, name, and identifier, have a general geographic territory, have a formal or informal hierarchical structure, and attempt to accomplish their goals individually or collectively by means of criminal activity.

(g) “Defendant” means the accused in a criminal case; similar to respondent.

(h) “Deposition” means the testimony of a witness taken upon request of the other party, not in open Court, but in the course of an attempt to take testimony, reduced to writing, and duly authenticated under oath or affirmation, and intended to be used in the trial.

(i) “Discovery” means the disclosure of information that was previously unknown; a pretrial device that can be used by one party to obtain facts and information about the case from the other party in order to assist the party’s preparation for trial; includes depositions, production of documents or things, permission to enter upon land or other property to inspect or photograph, physical and mental examinations, and requests for admissions. See also “deposition” and “production of documents.”

(j) “Disposition” means the result of the case; disposed: no further action is necessary in the case.

(k) “Domestic violence” means abusive behavior in any relationship that is used by one member of a family or household against another. Domestic violence includes physical, sexual, emotional, economic, or psychological actions or threats of actions that influence another person. This includes any behaviors that intimidate, manipulate, humiliate, isolate, frighten, terrorize, coerce, threaten, blame, hurt, injure, or wound someone.

(l) “Ex parte” means an order made by the Court on the application of one party without notice to, or argument from, the other party.

(m) “Family member” or “household member” means a spouse, former spouse, person related by blood or marriage, person residing with the offender due to adoption or foster placement, or any person currently cohabiting with the offender at any time during the year immediately preceding the commission of any alleged abuse.

(n) “Gang” means any combination, conspiracy, understanding, or similar arrangement in law or in fact of three or more persons that, through its membership or through the agency of any member, engages in a course or pattern of criminal activity. It may include any combination of persons organized formally or informally, so constructed that the organization will continue in operation even if individual members enter or leave the organization. It does not include political organizations that regularly practice or otherwise advocate civil disobedience.

(o) “Good cause” means sufficient grounds from a legal point of view; substantial and convincing reason.

(p) “Incarceration” or “imprisonment” means the confinement or detention of an offender pursuant to Court ordered sentencing, including, but not limited to, confinement in a jail or correctional facility, treatment facility, residential detention, or by electronic monitoring.

(q) “Legal financial obligation” means a Court ordered fine, Court costs, restitution, or payments to a victim’s compensation fund.

(r) “Mental disorder” means any organic, mental, or emotional impairment which has substantial adverse effects on an individual’s cognitive or volitional functions. It does not include an abnormality manifested only by repeated criminal or other antisocial behavior.

(s) “Motion” means a request that a Judge make a ruling or take some other action; an application for a ruling or order to a Court or Judge in favor of the party making the motion; generally made in reference to a pending action or may address a matter in the Court’s discretion or concern a point of law.

(t) “Personal recognizance” means the release from lawful custody of a defendant upon their promise to appear in Court at all scheduled Court appearances.

(u) “Petition” means a formal written request to the Court for a specific action.

(v) “Plea” means the defendant’s formal answer to a criminal charge.

(w) “Police Officer,” “Tribal Police Officer,” “Law Enforcement Officer,” or “Officer” means any officer sworn or authorized by the Puyallup Tribe of Indians.

(x) “Probation” means the release by the Court of an offender, without imprisonment, who has been found guilty of a crime upon verdict or plea, subject to any lawful conditions imposed by the Court, and subject to supervision by the Probation Officer upon direction of the Court.

(y) “Probation Officer” means any probation officer authorized by the Puyallup Tribe of Indians.

(z) “Production of documents” means the process or act of providing copies of documents or other written material at the request of another party in a case. See also “discovery.”

(aa) “Prosecutor” or “Tribal Prosecutor” means the Prosecutor for the Puyallup Tribe of Indians.

(bb) “Public defender” means any criminal defense attorney who the Tribe currently contracts with to provide defense counsel for Tribal members or others who may be eligible for these services. May also be referred to as “counsel for the defendant” if the defendant has elected to receive the services of the public defender.

(cc) “Service of process” means the legal methods of delivering documents to an opposing party in a lawsuit and proving to the Court (by filing a certificate of service) that the papers were received. The delivery of an official Court document is done by an official authorized by the Tribe.

(dd) “Summons” means a document issued by the Court that commands a person to appear before the Court at a stated time and place.

(ee) “Subpoena” means the Court’s order to a person that they appear in Court to give testimony or produce documents.

(ff) “Surety” means a person or company that insures or guarantees that another person will fulfill their obligation.

(gg) “Treatment facility” means any center for the treatment of mentally ill or chemically dependent persons, including detoxification centers.

(hh) “Violent offenses” means crimes that are characterized by extreme physical force, including assault, aggravated assault, vehicular assault, battery, reckless endangerment, robbery, criminal homicide, vehicular homicide, unlawful imprisonment, kidnapping, intimidation, indecent liberties, unlawful intercourse, rape, arson, and burglary.

(ii) “Waiver” means the intentional or voluntary renunciation, repudiation, abandonment, or surrender of a known right.

(jj) “Warrant” means a document issued by the Court expressly authorizing and directing a Police Officer to execute an arrest or conduct a search of specifically delineated places in accordance with this Code.

(kk) “Weapons” means firearms, guns, knives, or anything used or designed to be used in destroying, defeating, or injuring a person.

(ll) “Witness” means a person whose testimony is desired in a criminal action, prosecution, or proceeding.

(mm) “Writ” means a written Court order requiring specific action by the person or entity to whom the order is directed. [Res. 100418A (04/10/18)]

4.04.050 Rule 2.3 – Severability.

If any part(s) or the application or both of any part of this Code is held invalid, any such holding will not affect the validity of the remaining parts of this Code. [Res. 100418A (04/10/18)]

4.04.060 Rule 2.4 – Sovereign immunity.

Nothing in this Code constitutes a waiver or impairs the sovereign immunity of the Puyallup Tribe, or any of its subordinate boards or bodies. [Res. 100418A (04/10/18)]

Subchapter 2. Preliminary Proceedings

Part I

4.04.070 Rule 3 – Complaint.

(a) All prosecutions for violations of this Code must be commenced by a complaint. The complaint is a sworn written statement of the essential facts charging that a named or otherwise identifiable individual(s) has committed a particular offense.

(b) Complaint Filed by Prosecutor. The Prosecutor may file a complaint for an offense constituting a violation of the Puyallup Tribal Criminal Traffic Code (Chapter 5.08 PTC) or the Puyallup Tribal Criminal Code (Chapter 5.12 PTC), when the Prosecutor has probable cause to believe the offense was committed and probable cause to believe the offense was committed by the person charged.

(1) Be in writing and in the name of the Puyallup Tribe of Indians;

(2) State the name of the accused, if known, and if not known, designate the accused by description by which they can be identified with reasonable certainty;

(A) The description must be specific and particular to the accused and must be more than common race or common gender;

(3) Bear the signature of the complainant or arresting Police Officer or Prosecutor;

(4) State the name and section number of the Tribal code alleged to have been violated;

(5) State the facts constituting the offense in the exact words of the specific section of the Puyallup Tribal Criminal Traffic Code (Chapter 5.08 PTC) or the Puyallup Criminal Code (Chapter 5.12 PTC) alleged to have been violated; provided, that this statement indicates the specific acts of the person charged which constitute the offense;

(6) State the name of the person against whom or against whose property the offense was committed, if known; otherwise no entry under this number is needed;

(7) State the time and general location of the offense as definitely as can be done; and

(8) State the name of the person filing the complaint or summons and complaint and the source of their knowledge;

(A) A complaint signed by a Prosecutor need not be witnessed but the Prosecutor shall immediately file the complaint with the Court. A complaint signed by a complainant, other than a Prosecutor, must be witnessed by a Judge or Clerk of the Court.

(d) Sufficiency. Under these rules, a complaint must allow the Judge to determine from the face of the complaint whether the individual charged in the complaint should be brought before the Court to answer for an alleged violation of a specific Tribal law. The complaint must, at a minimum, set forth with particularity the facts alleged to constitute a criminal violation of a specific section of the Puyallup Tribal Criminal Traffic Code (Chapter 5.08 PTC) or the Puyallup Tribal Criminal Code (Chapter 5.12 PTC). In addition, the complaint must indicate the source of the complainant’s knowledge.

(e) Arrest Followed by a Complaint. If a Police Officer makes an arrest without a warrant of a person for an offense, the person arrested must be taken without unnecessary delay before the Judge for an initial appearance. Afterwards, the Prosecutor shall file a complaint in the Court and shall give a copy of the complaint to the defendant at or before the time they are arraigned. The defendant may be admitted to bail prior to the filing of the complaint.

(f) Summons. Unless the Judge orders a warrant, the Court Clerk shall issue a summons if a sworn complaint has been filed. The summons must contain the date, time, and place of appearance of the defendant. A copy of the complaint must be attached to and served with the summons. [Res. 100418A (04/10/18)]

4.04.080 Rule 4 – Arrest by warrant or summons upon complaint.

(a) Issuance. If a Judge determines from the complaint, or from an affidavit or affidavits filed with the complaint, that there is probable cause to believe that an offense has been committed and that the defendant named has committed the offense then a warrant for the arrest of the defendant may be issued to any Police Officer authorized by law to execute it. More than one warrant or summons may be issued on the same complaint. At the request of the Prosecutor, the Judge may issue a summons, instead of a warrant, to a person authorized to serve it. A Judge may issue more than one warrant or summons on the same complaint. If a defendant fails to appear in response to the summons, the Judge may issue a warrant immediately.

(1) Probable Cause. The Judge must determine from the face of the complaint whether or not probable cause exists to believe that a violation of the Puyallup Tribal Criminal Traffic Code (Chapter 5.08 PTC) or the Puyallup Tribal Criminal Code (Chapter 5.12 PTC) has been committed and that the person(s) named in the complaint committed the violation. Only upon such a determination as to probable cause can an arrest warrant or a summons be issued. If the Judge determines that probable cause does not exist, they shall dismiss the complaint without prejudice and refuse to issue a warrant or summons.

(2) Hearsay. A complaint can be based upon hearsay information and still establish probable cause. The complaint need not contain direct personal observations of the information contained in the complaint as long as the Judge is provided with facts supporting the credibility and reliability of any informant from which the Judge can make their own independent judgment.

(3) Facts Constituting an Offense. Rules 3 and 4 (PTC 4.04.070 and this section) require that an arrest warrant be issued only upon a written complaint filed under oath setting forth the essential facts constituting the offense charged, sufficient to support a finding of probable cause that the crime has been committed and that the person named in the complaint committed the offense.

(b) Form.

(1) Warrant. The Judge issuing the warrant shall sign the warrant and it must contain the name of the defendant or, if their name is not known, a physical description by which they can be identified with reasonable certainty; the description must be specific and particular to the accused and must be more than common race or common gender.

(2) The warrant must describe the offense charged in the complaint. It must command that the defendant be arrested without unnecessary delay and brought before the Judge.

(3) Summons. The summons must be in the same form as a warrant requiring the defendant to appear before the Court at the stated time and place.

(c) When the accused is arrested pursuant to a warrant, they must be brought before the Court, without unnecessary delay, and at such time a copy of the complaint and warrant must be given to the Judge. Also, at that time, the Judge may either:

(1) Admit the accused to bail or release them on personal recognizance, subject to the least restrictive conditions that will reasonably ensure the attendance of the accused at further Court proceedings, and supply the accused with a copy of the summons; or

(2) Order the accused to be held in custody and proceed without unnecessary delay with arraignment in accordance with PTC 4.04.230. [Res. 100418A (04/10/18)]

4.04.090 Rule 4.1 – Warrant or summons by telephone or other reliable electronic means.

A Judge may issue a warrant or summons telephonically or by any other reliable electronic means. (See the Puyallup Tribal Court’s “courtroom procedures.”) [Res. 100418A (04/10/18)]

4.04.100 Rule 4.2 – Arrest without warrant.

A Police Officer may make an arrest without warrant if the Officer has probable cause to believe a person has committed an offense within the jurisdiction of the Puyallup Tribe or is named in an arrest warrant in accordance with PTC 4.04.080(c). [Res. 100418A (04/10/18)]

4.04.110 Rule 4.3 – Arrest by warrant upon failure to appear.

If an accused, on whom a summons has been served pursuant to these rules, fails to appear in person or by counsel at the place and time specified by these rules, a bench warrant may be issued by the Judge for the arrest of the accused. [Res. 100418A (04/10/18)]

4.04.120 Rule 4.4 – Execution of warrant – Service of summons.

(a) Warrant Executed by Whom. A warrant issued according to these rules must be executed by a Police Officer within the exterior boundaries of the Puyallup Indian Reservation or other Tribal lands.

(b) Due Diligence. Police Officers executing a warrant or any person serving a summons shall use due diligence in the execution of arrest warrants or service of summons. Service or execution must take place within a reasonable time of its issuance to avoid unnecessary delays. Any accused person is entitled to know as soon as possible of a charge made against them.

(c) Service of Summons. A summons or complaint issued pursuant to these rules must be served by any person who is 18 years of age or over and who is not a witness or a party to the action; service may be accomplished by delivering a copy of the summons or complaint to a person who is 18 years of age or over and who resides at the defendant’s usual place of abode. Personal service of the summons must be attempted first. Service may then be attempted by mailing a copy to the defendant’s last known address by certified mail, restricted delivery, and return receipt requested. If the defendant’s address is located within the exterior boundaries of the Puyallup Indian Reservation, it must be mailed at least 10 days before the defendant is required to appear before the Puyallup Tribal Court. Service by certified mail must be complete upon return of the receipt signed by the defendant.

(1) If all available forms of service have been attempted and have failed, then, as a last resort, service by first class mail to the defendant’s last address of record will be permitted.

(A) Exception. A complaint must be served by personal or certified mail, return receipt requested.

(d) Return. The Police Officer executing the warrant or the person serving the summons shall make return of the document to the Court by making a short, written statement of how service was accomplished and the point where the service was accomplished. If service is accomplished by mail, the return receipt must be attached to the statement. [Res. 100418A (04/10/18)]

4.04.130 Rule 4.5 – Arrest procedure.

(a) Upon taking an arrested person into custody, and before interrogation, any arresting Police Officer shall inform the person being arrested that:

(1) They have the right to remain silent;

(2) Anything they say can be used against them in Court; and

(3) They have the right to talk to an attorney for advice before they ask questions and to have an attorney present during any questioning.

(b) Any arresting Police Officer may use objectively reasonable and necessary force in the arrest of a person. For purposes of bail, plea agreements, alternative resolutions, sentencing, or any other necessary purpose, the Court may consider the following questions in determining whether the use of force was objectively reasonable and necessary:

(1) Was the use of force proportional to the person’s resistance?

(2) Was there an urgent need to use force?

(3) Could the Officer have used lesser force and still safely accomplished the arrest?

(4) Did the Officer’s conduct precipitate the use of force?

(5) Was the Officer’s language or behavior appropriate and professional?

If the Court finds that the use of force in an arrest was not objectively reasonable and necessary, the Court shall preserve this finding in the record for the defendant.

(c) A Police Officer does not need the warrant in their possession at the time of arrest; but, if the Officer does not have the warrant in their possession, they shall inform the defendant that a warrant has been issued and the nature of the charge. The arrested person must be provided with a copy of the arrest warrant and complaint as soon as practicable, but no later than at the time of the arraignment. [Res. 100418A (04/10/18)]

4.04.140 Rule 4.6 – Fresh pursuit.

(a) Any arresting Police Officer may continue in fresh pursuit of a person, including outside the exterior boundaries of the Puyallup Indian Reservation and other Tribal lands, if the person:

(1) Is reasonably believed by the Officer to have committed an offense on the Reservation;

(2) Has committed, or attempted to commit, any offense or civil infraction on the Reservation in the presence of the Officer; or

(3) Is named in an outstanding warrant of arrest for a criminal offense.

(b) When an arrest following fresh pursuit occurs outside of the exterior boundaries of the Puyallup Indian Reservation and other Tribal lands but within the state of Washington, the arresting Police Officer shall return the arrested individual to the Reservation. [Res. 100418A (04/10/18)]

4.04.150 Rule 4.7 – Quashing warrants.

(a) If the Court issues a bench warrant because of a defendant’s failure to appear or for another reason, the defendant or their counsel may file a motion and proposed order to quash a warrant. The filing of a motion to quash a warrant does not quash the warrant and the defendant remains subject to an arrest warrant.

(b) At the time of the filing, the Court Clerk shall set the motion to quash on the Court’s next available warrant quash calendar and enter the date and time on the motion.

(c) The defendant or their counsel shall provide notice of the motion to the Prosecutor, even in cases when the defendant is on probation, and shall file with the Court a certificate of service.

(d) If the defendant has not been the subject of a criminal bench warrant issued by the Court prior to the issuance of the current warrant, the Court may quash the warrant without a hearing, strike the warrant quash hearing from the docket, and direct all parties to appear at the next scheduled hearing. This procedure may only be exercised once per defendant unless the Court finds good cause, which must be stated in writing.

(1) If applicable, the defendant or their counsel must provide the defendant’s mailing address where the notice will be mailed. Notice by first class mail to the defendant’s address of record will be deemed proper notice. If the defendant fails to provide a valid mailing address, the defendant must appear in person at a warrant quash hearing.

(e) In any case where, prior to the issuance of the current warrant, the defendant has had at least one bench warrant issued for failing to appear at a hearing for which he had notice, a hearing must be scheduled.

(1) The warrant will not be quashed unless the defendant pays the following nonrefundable administrative fee per hearing number for quashing the warrant:

(A) First motion to quash: no charge.

(B) Second motion to quash: $20.00.

(D) Fourth motion to quash: $100.00 or the amount of bail established by the Court on the warrant, whichever is lower.

(E) Fifth and higher motion to quash: the defendant must pay the amount of bail established by the Court on the warrant up to $500.00.

(2) The defendant shall also appear at the hearing and personally sign for their next Court date.

(3) If the defendant fails to appear at the scheduled warrant quash hearing, the motion will be stricken from the docket and the warrant will remain active. A stricken motion due to a defendant’s failure to appear at the warrant quash hearing will be included in determining the amount of the defendant’s nonrefundable administrative fee for future motions to quash warrants.

Unless directed otherwise by Tribal Council, all administrative fees collected will be applied to cover the costs of Court services. [Res. 100418A (04/10/18)]

Part II

4.04.160 Rule 5 – Initial appearance.

(a) Generally. The initial appearance is a proceeding at which an individual first appears before the Judge following an arrest for a criminal offense. The purpose of the initial appearance is for the Judge to inform the defendant of the basis of their arrest, conduct a probable cause determination, advise the defendant of their rights, if necessary, appoint a public defender, and conduct a bail review hearing if applicable.

(1) The Court must conduct an initial hearing for any defendant in custody during the first 48 hours of custody, excluding weekends and legal holidays, unless good cause has been shown or at the request of the defendant.

(b) Appearance upon Arrest. After an arrest, Police Officers shall take the defendant before the Judge without any unnecessary delay and no later than 48 hours after the defendant is taken into custody, in accordance with subsection (a)(1) of this section.

(1) If a defendant is arrested without a warrant, a complaint meeting PTC 4.04.080’s arrest warrant issuance requirement of probable cause or a statement of probable cause must be promptly filed with the Court Clerk, and a probable cause determination under subsection (b)(1)(A) of this section must immediately take place. The Judge shall release the defendant from custody if no complaint or statement is filed at the time of the initial appearance.

(A) Probable Cause Determination. If the Judge finds probable cause to believe an offense has been committed and the defendant committed it, the Judge must require the defendant to appear for further proceedings. If no probable cause is found to continue the detention after a warrantless arrest, the Judge shall release the defendant from custody in accordance with subsection (e) of this section.

(2) If a defendant is arrested pursuant to the execution of a warrant, the Judge shall detain or release the defendant as provided in these rules.

(c) Advisement of Rights. Upon a finding of probable cause, the Judge shall advise the defendant of the following rights and opportunities:

(1) The right to be informed of the charge(s).

(2) The right to be informed of the maximum penalties for the charge(s).

(3) The right to confront and cross-examine witnesses against them.

(4) The right to present witnesses.

(5) The right to a trial by judge or jury of six persons, which may be waived in writing.

(6) The right to a speedy trial.

(7) The right to a public trial.

(8) The right to be protected against self-incrimination, which includes the right to testify or not testify.

(9) The right to be free from the threat of double jeopardy.

(10) The right to counsel at their own expense and effort, or the defendant may be eligible for the services of the public defender, which requires an intake process.

(11) The right to appeal a final decision.

(12) The right to petition for a writ of habeas corpus.

(d) Bail. The Judge may admit the defendant to bail at the end of this rule’s proceedings in accordance with PTC 4.04.860(a) and 4.04.870, and in accordance with the Puyallup Tribal Bail Schedule (Chapter 4.04R PTC).

(e) No Probable Cause Finding. If the Judge finds no probable cause to believe an offense has been committed or the defendant committed it, the Judge shall dismiss the complaint without prejudice and discharge the defendant. A discharge shall not preclude the Prosecutor from later prosecuting the defendant for the same offense.

(f) Video Teleconferencing Permitted. Video teleconferencing may be used to conduct an appearance under this rule if the defendant is in custody and consents or if the defendant is excluded from the Court due to disruptive behavior and is returned to custody. [Res. 100418A (04/10/18)]

4.04.170 Rule 6 – Not applicable.

[Res. 100418A (04/10/18)]

4.04.180 Rule 7 – Charging document.

See Rule 3 (PTC 4.04.070). [Res. 100418A (04/10/18)]

4.04.190 Rule 8 – Joinder of offenses.

The charging document may charge a defendant in separate counts with two or more offenses if the offenses charged are of the same or similar character, or are based on the same act or transaction, or are connected with or constitute parts of a common scheme or plan. [Res. 100418A (04/10/18)]

4.04.200 Rule 8.1 – Joinder of defendants.

The charging document may charge two or more defendants if they are alleged to have participated in the same act or transaction, or in the same series of acts or transactions, constituting an offense or offenses. The defendants may be charged in one or more counts together or separately. All defendants need not be charged in each count. [Res. 100418A (04/10/18)]

4.04.210 Rule 8.2 – Prejudice to defendant(s).

The Judge, in making the decision as to consolidation under this rule, must ensure that the rights of individual defendants are not jeopardized by consolidation. Any defendant that does not wish to have their case joined with the other defendants may petition the Court to have the case separated. [Res. 100418A (04/10/18)]

4.04.220 Rule 9 – Not applicable.

[Res. 100418A (04/10/18)]

4.04.230 Rule 10 – Arraignment.

(a) An arraignment must be conducted in open Court on the defendant’s first appearance in Court after their initial appearance, unless the defendant is granted a continuance to seek assistance of counsel, to determine which plea to enter or for other good reason. The Judge shall advise each defendant of their right to have the arraignment continued upon a request for good cause which may be made at any time prior to pleading guilty or not guilty. If no such request is made, the Judge may proceed with the arraignment in accordance with this rule.

(b) The Court must hold an arraignment hearing for any defendant in custody 120 hours after the initial appearance, excluding weekends and legal holidays, unless good cause has been shown or at the request of the defendant. Failure to hold an arraignment hearing within the required time will result in the release of the defendant.

(c) The Court must hold an arraignment hearing for any defendant not in custody no later than 30 days after the complaint is filed or the date of arrest, whichever is later, unless good cause has been shown or at the request of the defendant.

(1) Bail. If the defendant is in custody and has not yet been admitted to bail, the Judge may admit the defendant to bail in accordance with PTC 4.04.860(a) and 4.04.870, and in accordance with the Puyallup Tribal Bail Schedule (Chapter 4.04R PTC).

(d) Before the defendant is called upon to plead guilty or not guilty, the Judge shall conduct the following proceedings:

(1) The complaint must be read to the defendant or the substance of the charge contained in the complaint must be stated to him.

(2) The defendant must be given a copy of the complaint or summons and complaint, if one has not been previously served.

(3) The defendant must be advised of the maximum penalty which the Judge may impose in the event of conviction.

(e) The defendant shall appear in person unless the appearance has been waived under subsections (f) and (g) of this section.

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

(1) In a signed, written waiver, the defendant may waive their appearance and affirm that they received a copy of the information and that their plea is not guilty; and

(2) The Court accepts the waiver.

(g) Video Teleconferencing Permitted. Video teleconferencing may be used to conduct an appearance under this rule if the defendant is in custody and consents or if the defendant is excluded from the Court due to disruptive behavior and is returned to custody. [Res. 100418A (04/10/18)]

4.04.240 Rule 11 – Pleas.

(a) Generally. A defendant, personally or by counsel, may enter a plea of guilty, not guilty, or no contest. If the defendant refuses to enter a plea, the Court shall enter a plea of not guilty on behalf of the defendant.

(b) Advisement of Rights. Before accepting the defendant’s plea, the Judge shall advise the defendant of the following rights and opportunities, if the defendant has not previously been advised:

(1) The right to be informed of the charge(s).

(2) The right to be informed of the maximum penalties for the charge(s).

(3) The right to confront and cross-examine any witnesses against them.

(4) The right to present witnesses.

(5) The right to a trial by judge or trial by jury of six persons, which may be waived in writing.

(6) The right to a speedy trial.

(7) The right to a public trial.

(8) The right to be protected against self-incrimination, which includes the right to testify or not testify.

(9) The right to be free from the threat of double jeopardy.

(10) The right to counsel at their own expense and effort or they may be eligible for the services of the public defender, which requires an intake process.

(11) The right to appeal a final decision.

(12) The right to petition for a writ of habeas corpus.

The defendant may waive formal reading of these rights in open Court.

(1) Ask defendant if they want a jury trial or if they waive their right to a jury trial. If defendant requests a jury trial, the case will be placed on the jury trial calendar. If defendant waives their right to a jury trial, the Judge shall record the waiver in the case record. The Judge may continue the case to allow defendant time to decide.

(2) Set the date and time for trial, or for further proceedings.

(3) Advise the defendant of their right to bail if the defendant is still in custody upon arrest with or without warrant. If bail has not yet been set, the Judge shall set bail, and if the bail has already been set, the amount shall be reviewed.

(d) Plea of Guilty. The Court shall not accept the plea of guilty without first addressing the defendant personally and determining that the plea is made voluntarily with understanding of the nature of the charge, and explaining fully to the defendant their right to trial by jury, their right to engage counsel, and the maximum penalty possible for the offense charged.

(1) If a defendant refuses to enter a plea or if the Judge refuses to accept a plea of guilty, the Judge shall enter a plea of not guilty. The Judge shall not enter a judgment upon a plea of guilty unless they are satisfied that the defendant is pleading guilty because they, in fact, committed the offense of which they are charged.

(2) A plea of guilty shall not be entered except by the defendant in person.

(3) A plea of guilty may be withdrawn:

(A) At the Judge’s discretion, and a plea of not guilty or no contest substituted; or

(B) Before sentencing, upon adequate or compelling reason given by the defendant.

(4) A defendant may be permitted to enter a guilty plea to a lesser degree of the offense charged, or to a lesser offense included within the offense charged, and, if so, the reasons for the acceptance of the plea must be set forth in the order of the Court, and any recommendations by an Officer or the Prosecutor, with the reasons therefor, must be stated in writing and filed in the official files of the case.

(5) Upon acceptance of a plea of guilty, the Judge may sentence immediately or, on the Court’s own motion or the request of either party, schedule a sentencing hearing in order to allow sufficient time for the involved parties to obtain any information necessary for the imposition of a just sentence.

(e) Plea of No Contest. The Court shall not accept the plea of no contest without first addressing the defendant personally and determining that the plea is made voluntarily with an understanding of the nature of the charge, and the plea is not the result of force or threats or promises apart from any plea arrangements which may have been entered into between the Prosecutor and the defendant. A defendant may plead no contest only with the consent of the Judge. The defendant shall not make an admission of guilt but the defendant must accept the sentence recommended by the Prosecutor in exchange for not contesting the charge. The plea will be accepted by the Court only after due consideration of the views of the party and the interest of the public in the effective administration of justice.

(f) Guilty or No Contest Plea Information. The Court shall advise the defendant that if they enter a plea of guilty or no contest, there will not be a formal trial and, in effect, they have waived their right to a trial and all trial rights by such a plea, and any further statements they make to either the Court or to a Police Officer or other persons concerning the violation or charge can be used against him either in that proceeding or in any future prosecution. The Court shall also advise the defendant that by entering the plea, the defendant may face additional consequences, including the forfeiture of property, the loss of certain employment opportunities, disqualification from certain governmental benefits, and enhanced punishment if the defendant is convicted of another crime in the future. [Res. 100418A (04/10/18)]

4.04.250 Rule 11.1 – Plea agreements.

(a) Plea Agreement. A plea agreement may be entered into any time prior to verdict or finding of guilt by Judge or jury. The Prosecutor and counsel for the defendant, or the defendant acting pro se, may engage in discussions toward reaching an agreement that, upon entering a plea of guilty or no contest to a charged offense or to a lesser or related offense, the Prosecutor will do any of the following:

(1) Move for dismissal of other charges;

(2) Make a recommendation or agree not to oppose the defendant’s request for a particular sentence, with the understanding that such recommendation or request shall not be binding on the Judge; or

(3) Agree that a specific sentence is the appropriate disposition of the case.

(b) Judicial Participation in Plea Process. The Judge presiding over the pending cause of action shall not participate in any such discussions. At the request of the presiding Judge, the Prosecutor, or counsel for the defendant, or the defendant acting pro se, a nonpresiding Judge may facilitate and participate in such discussions. The participating Judge’s role is to facilitate a discussion where the parties can come to a resolution themselves. If a nonpresiding Judge participates, they shall not preside over any future trial or sentencing hearing in the same matter.

(c) Notice of Such Plea Agreement. If a plea agreement has been reached by the Prosecutor and the defendant, the Court shall require on the record disclosure of the agreement in open Court or, on a showing of good cause, in chambers at the time the plea is offered.

(d) Acceptance of a Plea Agreement. If the Judge accepts the plea agreement, the entire agreement must be accepted. The Judge shall inform the defendant that it will be embodied in the judgment and sentence the disposition provided for in the plea agreement.

(e) Rejection of a Plea Agreement. If the Judge rejects the sentencing stipulations of the plea agreement in whole or in part, the Court shall, on the record, inform the defendant and the Prosecutor of this fact, advise the defendant personally in open Court or, on showing of good cause, in chambers, that the Court is not bound by the plea agreement and that the Court will afford the defendant an opportunity to withdraw their plea and advise the defendant that if they persist in entering a plea of guilty or a plea of no contest the disposition of the case may be less favorable to the defendant than contemplated by the plea agreement’s sentencing stipulations.

(f) Time of Plea Agreement Procedure. Except for good cause shown, the Judge must be notified of the plea agreement at the time of pretrial hearing or as soon thereafter as possible, but in all cases prior to trial.

(g) Inadmissibility of Withdrawn Pleas, Offers of Pleas and Related Statements. Any evidence of a plea of guilty, later withdrawn, or a plea of no contest to the offense charged or any other offense, or of statements made in connection with the plea, is not admissible in any other criminal proceeding or in any civil cases against the defendant who made the plea or offer. However, evidence of a statement made in connection with or relevant to a plea of guilty, later withdrawn, or a plea of no contest to the offense charged or any other offense is admissible in a criminal proceeding for perjury or false statement if the statement was made by the defendant under oath and on record.

(h) Determining Accuracy of Plea. The Judge shall not enter a judgment on a tendered plea of guilty or no contest without first making an inquiry to satisfy themselves that there is a factual basis for the plea. The Court should satisfy itself, by inquiry of the parties or by examining the presentence report, or otherwise, that the defendant’s admitted conduct constitutes the offense charged.

(i) Record of Proceedings. A verbatim record of the proceedings at which the defendant enters a plea of guilty or no contest must include whether a nonpresiding Judge facilitated and participated in the plea process, the Court’s advice to the defendant, the inquiry into the voluntariness of the plea, including any plea agreement, and inquiry into the accuracy of the plea.

(j) Fulfillment of Promises Made. When a guilty plea rests in any significant degree on a promise or agreement reached between the Prosecution and the defendant the agreement must be fulfilled once the guilty plea is entered. If the bargain is not fulfilled, the guilty plea may be rendered involuntary.

(k) Harmless Error. A variance from the requirements of this rule will result in a harmless error if it does not affect the defendant’s substantial rights. [Res. 100418A (04/10/18)]

4.04.260 Rule 11.2 – Alternative resolutions.

(a) Deferred Prosecution, Also Called “Pretrial Diversion.” Deferred prosecution is an alternative to prosecution that diverts certain offenders who believe their charged conduct is the result of, or caused by, alcoholism, drug addiction, or mental health issues into a program of supervision and services administered by the Puyallup Tribe Probation Department (or other Tribal programs).

Deferred prosecution is offered in the sole discretion of the Prosecutor.

To be eligible, a defendant:

(1) Must not have been the subject of a deferred prosecution in a criminal matter before this Court within the last 48 months;

(2) Must not currently be the subject of a deferred prosecution in a criminal matter before this Court; and

(3) Must not have entered a plea of guilty or no contest to or been convicted of a Class A or Class B domestic violence offense in this Court in the last 12 months.

(b) Deferred Prosecution Agreements.

(1) At any time before trial, a Prosecutor and counsel for the defendant, or the defendant when acting pro se, may agree to a deferred prosecution for a specified period of time based on one or more of the following conditions:

(A) That the defendant shall not be convicted of any offense during the specified period of time;

(B) That the defendant shall not engage in specified activities, conduct, and associations bearing a relationship to the conduct upon which the charge against the defendant is based;

(C) That the defendant shall participate in a supervised rehabilitation program, which may include treatment, counseling, training, and education;

(D) That the defendant shall make restitution in a specified manner for harm or loss caused by the offense even though the defendant is not pleading guilty to and has not been convicted of the offense giving rise to the victim’s losses;

(E) Community service; and

(F) Any other reasonable conditions agreed upon by the parties.

(2) Contents of Agreement. All deferred prosecution agreements are subject to approval by the Court. The agreement must be in writing, must be signed by both parties, and must state that once the Court approves the agreement, a stay will go into effect until the agreement is terminated by date or violation of the terms of the agreement which results in the stay of proceedings being lifted; the agreement must also state that the defendant’s right to speedy trial will be stayed. The agreement may include stipulations concerning the admissibility of the police report, specified testimony, or dispositions if the deferred prosecution is revoked. The agreement must be filed with the Court along with a copy of the police report, testimonies, or dispositions, if they are included as stipulations in the agreement.

(3) Violations of Agreement. The prosecution must be deferred for the period specified in the agreement unless there has been a violation of its terms. As an alternative to lifting the stay of proceedings, sanctions may be imposed for a violation of the agreement without revoking the agreement in its entirety, with the consent of the defendant. If the defendant does not consent to sanctions, the stay of proceedings will be lifted and the prosecution resumed. The conditions of the agreement must be monitored by the Probation Department, the Court, or any other department named by the Court in the agreement. The agreement must state which department will be responsible for monitoring the agreement.

(4) Termination of Deferred Prosecution. Whenever the Court has deferred the prosecution and after expiration of the period of deferral and after the defendant’s successful completion of any conditions of deferral, upon motion by the Court, the defendant, or the defendant’s counsel, the Court shall enter an order of dismissal of charges.

(c) Deferred Prosecution Petitions. A person charged with a criminal offense in the Puyallup Tribal Court who believes their charged conduct is the result of, or caused by, alcoholism, drug addiction, or mental health issues may petition the Court to be considered for an order granting them entrance into a deferred prosecution program.

(1) Limitation. Any person who has been the subject of a deferred prosecution in a criminal matter pending before this Court within the last 48 months or who has entered a plea of guilty or no contest to or been convicted of a Class A or Class B domestic violence offense in this Court in the last 12 months shall not be entitled to petition for a deferred prosecution.

(2) Contents and Support of Petition. The petition for deferred prosecution:

(A) Must contain the petitioner’s sworn admission to specifically articulated facts constituting a violation of the Criminal Code, stipulation to the admissibility and sufficiency of the facts contained in the written police report or testing facility report or both, acknowledgment that the Court will not accept a petition for deferred prosecution from a person who sincerely believes that they are innocent of the alleged violation of the Criminal Code or sincerely believes that they do not, in fact, suffer from a problem with drugs or alcohol or both, and the written acknowledgement of the petitioner that they suffer from a problem with alcohol, drugs, or mental health; the admissions and acknowledgments will be automatically admissible in Court in proceedings to grant or revoke the deferred prosecution, but shall not be admissible in any other proceeding unless the deferred prosecution is revoked;

(B) Must be supported by a treatment facility report indicating either “SP-1” (significant problem requiring a one-year treatment program) or “SP-2” (significant problem requiring a two-year treatment program) and proposing a corresponding treatment program; the treatment facility report must be filed with the petition for deferred prosecution and served on the Prosecutor;

(C) Must contain the signed agreement of the petitioner, stating their obligation to comply with all the requirements of the treatment program proposed by the treatment facility report if the deferred prosecution is granted; and

(D) Must contain the specific written acknowledgment of the petitioner that if the deferred prosecution is revoked, the petitioner’s admission to facts under subsection (c)(2)(A) of this section will be automatically admissible and sufficient to support a finding that the petitioner committed a violation of the Criminal Code, and the Court will enter judgment to that effect.

If the petition is not approved or is withdrawn before approval, evidence pertaining to or resulting from the petition is inadmissible in any proceeding or trial.

(3) Contents of Treatment Plan. The written treatment plan must be contained in the treatment facility report filed with the petition for deferred prosecution as required in subsection (c)(2)(B) of this section. The following requirements must be contained in the written treatment plan:

(A) Total abstinence from alcohol and all other nonprescribed mind-altering drugs;

(B) Participation in an intensive inpatient or intensive outpatient program in a KCC or a Court approved alcohol or drug treatment program;

(C) Participation in a minimum of two meetings per week of an alcoholism self-help recovery support group or drug self-help recovery support group or both, as determined by the treatment facility, for the duration of the treatment plan;

(D) Participation in an alcoholism self-help recovery support group or drug self-help recovery support group or both, as determined by the treatment facility, from the date of Court approval of the treatment plan to entry into intensive treatment;

(E) Weekly approved outpatient counseling, group or individual, for a minimum of six months following the intensive phase of treatment;

(F) Monthly outpatient contact, group or individual, for the remainder of the deferred prosecution period;

(G) The decision to include the use of prescribed drugs, such as disulfiram, as a condition of treatment, must be reserved to the treatment facility and the petitioner’s physician;

(H) All treatment within the purview of this section must occur within or be approved by the treatment facility or a Court approved alcoholism or drug treatment program;

(I) Signature of the petitioner agreeing to the terms and conditions of the treatment plan;

(J) The promise of the treatment facility to provide the Court and the parties with a statement every three months for the first year, and for two-year programs, every six months for the second year regarding: (i) the petitioner’s cooperation with the treatment plan, and (ii) the petitioner’s progress or failure in treatment. These statements must be made as a declaration by the person who is personally responsible for providing the treatment;

(K) The promise of the treatment facility to immediately report to the Court and parties any noncompliance by the petitioner with the requirements of their treatment ordered under this deferred prosecution program.

(4) Hearing on Petition for Deferred Prosecution.

(A) The petition for deferred prosecution and the treatment center report must be filed with the Court and served on the Prosecutor no less than 14 days prior to the hearing on the petition.

(B) The Court shall not grant a petition without a hearing in open Court attended personally by the petitioner.

(i) The petitioner has stipulated to facts constituting a violation of the Criminal Code and has stipulated to the admissibility and sufficiency of the facts as contained in the written police report or the testing facility report or both;

(ii) The petitioner has stipulated to the admissibility of these facts in any hearing on the underlying violation held subsequent to revocation of the order granting deferred prosecution, and that in the hearing such stipulated facts would be used to enter a finding that the petitioner did commit the violation;

(iii) The petitioner has acknowledged and waived the right to testify, the right to a speedy trial, the right to call witnesses to testify, the right to cross-examine, the right to present evidence in their defense, and the right to a jury trial; and

(iv) The petitioner’s statements were made knowingly and voluntarily.

Such findings must be included in the order granting deferred prosecution.

(D) If the Court approves the treatment plan and the petitioner agrees to comply with its terms and conditions and agrees to pay the cost, if any, of the treatment, the Court shall make an entrance upon the person’s Court docket showing that the person has been accepted for deferred prosecution. A copy of the treatment plan must be attached to the docket, which must then be removed from the regular Court dockets and filed in a special Court deferred prosecution file.

(E) If the petition is not approved or is withdrawn before approval, evidence pertaining to or resulting from the petitioner’s statements in the petition or from the treatment center report is inadmissible in any trial on the alleged violations, but will be available for use after a determination that a violation was committed in determining an appropriate sanction.

(F) An order granting deferred prosecution must require compliance with the program proposed by the treatment center report for the specified period (one year or two years) during the term of the deferred prosecution.

(5) Revocation of Deferred Prosecution. If a petitioner, who has been accepted for a deferred prosecution, fails or neglects to carry out and fulfill any term or condition or both of the petitioner’s treatment plan or any term or condition or both of the deferred prosecution order, or violates any provision of this section, the treatment facility shall immediately report such breach to the Court, the Prosecutor, and the petitioner or petitioner’s attorney or spokesperson of record, together with its recommendation. The Court upon receiving such a report shall hold a hearing to determine whether the petitioner should be removed from the deferred prosecution program. At the hearing, evidence must be taken of the petitioner’s alleged failure to comply with the treatment plan and the petitioner will have the right to present evidence on their own behalf. The Court shall either order that the petitioner continue on the treatment plan or be removed from deferred prosecution. If removed from deferred prosecution, the Court shall enter judgment based on the sworn admission of facts contained in the petition and any other evidence adduced at the hearing, and the Court shall then lift the stay of the proceedings, and the prosecution will commence.

(6) Order on Successful Completion of Deferred Prosecution. A hearing must be held after the conclusion of the one-year or two-year program. At least 14 days’ notice must be given before the hearing, and it may be noted by either party and scheduled by the Court Clerk. At the conclusion of the hearing, if it appears to the Court that the petitioner satisfactorily complied with the order of deferred prosecution and the treatment plan, the Court shall then dismiss with prejudice the allegations on which the offense was based.

(d) Deferred Judgment. Also called “deferred adjudication,” may occur when a defendant has entered a plea of guilty or no contest. At the discretion of the Judge, the Court will not enter the defendant’s guilty or no contest plea, and instead must require the defendant to satisfy conditions of the deferred judgment, which must be the same or similar to the conditions set forth in subsections (b)(1)(A) through (F) of this section. When the defendant successfully completes all conditions, the Court shall dismiss the charges against the defendant and the defendant is released from further obligation. If the defendant does not successfully complete all conditions of the deferred judgment, the Court shall enter judgment and sentence. [Res. 100418A (04/10/18)]

Part III

4.04.270 Rule 12 – Pretrial motions.

(a) Generally. Any defense or objection which is capable of determination other than at trial and which is not required to be raised during arraignment may be raised prior to trial by a written motion. All substantive motions must be raised prior to trial.

(b) Specifically. Pretrial motions may include:

(1) Motions for use of interpreter;

(2) Motion for continuance of trial;

(3) Motion to dismiss complaint for lack of jurisdiction or for failure to charge an offense;

(4) Motion for Relief from Prejudicial Joinder. If it appears the defendant or their case is prejudiced by a joinder of offenses or joinder of defendants in a complaint for trial together, the Judge may order separate trials, grant a severance of the defendants, or provide whatever other relief justice may require. In ruling on a motion by defendant for severance, the Judge may order the Prosecutor to deliver any statements or confessions, for inspection privately in the Judge’s chambers, made by defendants which the Prosecutor intends to introduce in evidence at trial;

(5) Motion for Pretrial Conference. At any time after the filing of the complaint, the Court, upon motion of any party or upon its own motion, may order one or more conferences to consider such matters that will promote a fair and expeditious trial. At the conclusion of the conference, the Judge shall prepare and file a memorandum of the matters agreed upon;

(6) Motion to Suppress Evidence. A motion to suppress evidence may be made when it is learned through discovery or other pretrial procedures that an opposing party intends to introduce evidence that is inadmissible under these rules.

(c) Any defense to lack of jurisdiction or for failure to charge an offense may be raised at any stage of the proceedings by the defense or sua sponte by the Court.

(d) A motion in limine, made in writing, may be raised at any stage of the proceedings, including at trial. A motion in limine must concern only procedural issues.

(e) Time and Manner of Making and Opposing Motions. Motions made under this rule must be in writing and supported by the reasons for the motion, and the motion must be filed no later than 10 days before the trial date. Such motions must be served on the opposing party simultaneously with the filing of the motion. Response in opposition to such motions must be made in writing and supported by the reasons for the motion, and the motion must be filed no later than five days before the trial date. Responses in opposition must be served simultaneously with the filing of the motion. The Judge, at their discretion, may direct that any motion be made orally.

(f) Determination of Motions. The Judge may enter judgment on pretrial motions solely on any papers filed, or they may set a date and time for hearing of pretrial motions. [Res. 100418A (04/10/18)]

4.04.280 Rule 12.1 – Pretrial conference.

At any time prior to trial, upon motion of either party, the Court may order a conference to consider matters which will promote a fair and expeditious trial. Any matters agreed upon must be reduced to writing and signed by the defendant and their attorney. If no attorneys are involved, the writing must be signed by the defendant. Any conference ordered may be conducted in the Puyallup language. If the Puyallup Tribal Court is a court of record, the record must be kept in the English language for purposes of appeal. At the conclusion of the conference, the Judge shall prepare and file a memorandum of the matters agreed upon. [Res. 100418A (04/10/18)]

4.04.290 Rule 12.2 – Pretrial hearings.

(a) In every criminal case in which the defendant pleads not guilty, the Court shall set a date for a pretrial hearing. The purpose of the hearing is to present motions, complete plea bargaining, or to set a trial date and readiness hearing.

(b) If the defendant fails to appear at the pretrial hearing after receiving proper notice, forfeiture of bail will be ordered and the Court will issue a bench warrant for the defendant’s arrest unless the defendant’s appearance has been excused by the Court.

(c) Unless the pretrial hearing is continued to another date or the case is resolved at the hearing, the Court shall set a jury trial. If the right to jury trial is waived, the Court shall set a bench trial date. [Res. 100418A (04/10/18)]

4.04.300 Rule 12.3 – Trial readiness hearing.

(a) At least 15 days prior to a trial date, a readiness hearing must be held; the exact date will be decided by the Court. All parties shall attend the trial readiness hearing. At the readiness hearing, the following matters will be concluded: stipulations of facts; all plea negotiations; exchange of witness lists; providing of any discovery not previously completed; and motions on legal issues arising since the last pretrial hearing or due to new evidence.

(b) At the readiness hearing, the parties must notify the Court that they are ready or not for trial. If both parties state that they are ready for trial, the case will subsequently be tried by jury, unless waived by the defendant, or concluded by a plea of guilty, plea of no contest or a dismissal of the charge(s).

(c) If, after the readiness hearing, the defendant decides to plead guilty, plead no contest, the plaintiff moves to dismiss, or if either party seeks a continuance of the trial date, the parties shall notify the other party and the Court Clerk. The Clerk shall then set the matter for a change of plea hearing or a motion hearing on the next available Court calendar.

(d) Failure of the defendant to be present at the readiness hearing will result in the issuance of a bench warrant for failure to appear, forfeiture of bail, and the striking of the jury trial date. [Res. 100418A (04/10/18)]

4.04.310 Rule 12.5 – Notice of alibi.

Notice by Defendant. In the event that the defendant intends to produce evidence that they were not at the place specified in the complaint at the time of the alleged crime, they must serve upon the Prosecutor, within a reasonable time after the entry of a plea of not guilty, a statement in writing, specifying the place where they claim to have been and the names and addresses of the witnesses they will call to support this defense of alibi.

Upon receiving this statement, the Prosecutor shall advise the defendant of the names and addresses of any additional witnesses who may be called to refute such alibi, or within a reasonable time after their identity becomes known to the Prosecutor.

Neither the Prosecutor nor the defendant will be permitted at the trial to introduce evidence inconsistent with this specification unless the Court, for good cause, permits this specification. The Court may exclude evidence on the defendant’s behalf, that he or she was in a place other than that specified by the Prosecutor, unless the Court is satisfied that such evidence should be admitted. The sanction for noncompliance with this rule is the exclusion of any alibi evidence at trial. Such exclusion is, however, in the discretion of the Judge. [Res. 100418A (04/10/18)]

4.04.320 Rule 13 – Joint trial of separate cases.

The Court may order that separate cases be tried together as though brought in a single charge if all offenses and all defendants could have been joined in a single charge. [Res. 100418A (04/10/18)]

4.04.330 Rule 14 – Relief from prejudicial joinder.

If it appears that a defendant or the Prosecution is prejudiced by a joinder of offenses or joinder of defendants in a charging document or by such joinder for trials together, the Court may order an election or separate trials of counts, grant a severance of defendants, or provide whatever other relief justice requires. In ruling on a motion by a defendant for severance, the Court may order the Prosecutor to deliver to the Court for inspection in camera any statements or confessions made by the defendants which the Prosecution intends to introduce in evidence at the trial. [Res. 100418A (04/10/18)]

4.04.340 Rule 15 – Depositions.

(a) When Taken. At any time after the arraignment, the Court may, upon motion of a party and notice to the parties, order a deposition and the Court may also require that any nonprivileged papers, designated books, documents, or tangible objects be produced at the same time and place of the deposition.

The Court may order a deposition when:

(1) The Court finds that the prospective witness is unable to attend, or unable to be interviewed by a party, or is prevented from attending a trial or hearing;

(2) A witness refuses to discuss the case with either party and the testimony of the witness is both material and necessary; and

(3) There is good cause shown to take the deposition.

A witness is not unavailable under subsection (a)(1) of this section unless the party seeking the deposition has made a good faith effort to obtain the witness’s presence at trial. The party seeking the deposition shall prove they made a good faith effort to obtain the presence of a witness by presenting evidence of their effort.

The Court may decide to allow the admissibility of a deposition to preserve testimony.

(b) Notice of Taking. When a deposition is granted, the Court shall determine the time and place of the deposition. The defendant shall be present at the time and place set forth for examination unless in writing they waive the right to be present. The defendant’s attorney may cross-examine the witness at the time of taking the deposition or may examine the witness if he is called by the defendant.

(c) How Taken. The deposition must be taken by tape recorder, as is used in the Court for reporting purposes. Objections to testimony must be made at the time of the deposition and the Judge shall rule on the objection at the earliest convenient time. Cross-examination must be allowed the same as would be allowed at the trial itself. Depositions of a defendant shall not be taken without their written consent.

(d) Use. Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of the deponent as witness, for the purpose of discovery, or as substantive evidence under circumstances permitted by this Code, the Court, and the Federal Rules of Evidence. [Res. 100418A (04/10/18)]

4.04.350 Rule 16 – Discovery.

(a) Disclosure of Evidence by Prosecution.

Information Subject to Disclosure.

(1) Generally. The Prosecution shall provide automatic and prompt disclosure of any exculpatory evidence which is known by the Prosecution, or which by the exercise of due diligence may become known to the Prosecution.

(2) Statement of Defendant. Upon the defendant’s request, the Prosecutor shall permit the defendant to inspect and copy or photograph: any relevant written or recorded statements made by the defendant, or copies of such statements made, within the possession, custody or control of the Prosecution, the existence of which is known, or by the exercise of due diligence may become known, to the Prosecution; the substance of any oral statement made by the defendant, which the Prosecution intends to offer in evidence at the trial, whether made before or after arrest in response to interrogation by any person then unknown to the defendant to be an agent of the Prosecution.

(3) Documents and Tangible Items. Upon request of a defendant, the Prosecution shall permit the defendant to inspect and copy or photograph books, reports, papers, documents, photographs, electronic surveillance, tangible objects, buildings or places, or copies or portions of such items, which are within the possession, custody, or control of the Prosecution, and which are material to the preparation of the defense and are intended for use by the Prosecution at trial, or were obtained from or belong to the defendant.

(4) Reports of Examinations and Tests. Upon request of the defendant, the Prosecution shall permit the defendant to inspect, copy, or photograph books, reports, papers, documents, photographs, tangible objects, buildings or places, or copies or portions of such examinations and tests which are within the possession, custody, or control of the Prosecutor, the existence of which is known, or by the exercise of due diligence may become known, to the Prosecution, and which are material to the preparation of the defense or are intended for use by the Prosecutor at trial.

(5) List of Witnesses. Upon request of the defendant, the Prosecution shall deliver to the defendant a list of witnesses which they intend to call. Failure of the Prosecution to call any witness on the list shall not be grounds for comment by the defendant for failure to call that witness.

(A) Upon request, the defendant may interview any of the Prosecution’s witnesses ex parte and without the Prosecution present. The defendant may also record the encounter for impeachment purposes, and the Prosecution shall make reasonable efforts to make the witnesses available for interview. If the defendant is unable to interview a witness, they may request a deposition for discovery purposes only. The Court may order a deposition if the witness requested is uncooperative. The Court may order any unreasonable party to bear the cost.

(B) The Prosecution shall not interview the defendant without prior consent from the defendant.

Information Not Subject to Disclosure.

(6) Except as provided in subsections (a)(2), (3), and (4) of this section, this rule shall not authorize the discovery or inspection of reports, memoranda, internal Tribal documents made by the Prosecution or made by other agent(s) of the Prosecution in connection with the investigation or prosecution of the case, as well as statements made by Prosecution witnesses or prospective Prosecution witnesses, or other work product or confidential evidence, unless ruled as exculpatory within the discretion of the Judge.

(b) Disclosure of Evidence by Defense.

Information Subject to Disclosure.

(1) Documents and Tangible Objects. If the defendant requests disclosures under subsection (a)(3) or (4) of this section, upon compliance with such request by the Prosecution, the defendant, on request of the Prosecution, shall permit the Prosecution to inspect, copy or photograph books, reports, papers, documents, photographs, tangible objects, buildings or places, or copies or portions of such examinations and tests which are within the possession, custody, or control of the defendant and which the defendant intends to introduce as evidence at trial.

(2) Reports of Examinations and Tests. If the defendant requests disclosure under subsection (a)(4) or (5) of this section, upon compliance with such request by the Prosecution, the defendant, on request of the Prosecution, shall permit the Prosecution to inspect, copy, or photograph books, reports, papers, documents, photographs, tangible objects, buildings or places, or copies or portions of such examinations and tests which are within the possession, custody, or control of the defendant, which the defendant intends to introduce as evidence at trial or which were prepared by a witness whom the defendant intends to call at the trial when the results or reports relate to testimony.

(3) List of Witnesses. Upon request of the Prosecution, the defendant shall deliver to the Prosecution a list of witnesses which they intend to call. Failure of the defendant to call any witness on the list shall not be grounds for comment by the Prosecution for failure to call that witness.

(A) Upon request, the Prosecution may interview any of the defendant’s witnesses ex parte and without the defendant present. The Prosecution may also record the encounter for impeachment purposes, and the defendant shall make reasonable efforts to make the witnesses available for interview. If the Prosecution is unable to interview a witness, they may request a deposition for discovery purposes only. The Court may order a deposition if the witness requested is uncooperative. The Court may order any unreasonable party to bear the cost.

(B) The defendant shall not interview the victim without the prior consent of the victim.

Information Not Subject to Disclosure.

(4) Except as to scientific or medical reports, this subsection does not authorize the discovery or inspection of reports, memoranda, or other internal defense documents made by the defendant, or their attorneys or agents in connection with the investigation or defense of the case, or of statements made by the defendant, or by defense witnesses, or by prospective defense witnesses, to the defendant, or the defendant’s agents or attorneys.

(1) A party who discovers additional evidence or material before or during trial must promptly disclose its existence to the other party or the Court if:

(A) The evidence or material is subject to discovery or inspection under this rule; and

(B) The other party previously requested, or the Court ordered, its production.

(d) Regulation of Discovery.

(1) At any time and for good cause, the Court may deny, restrict, or defer discovery or inspection, or grant other appropriate relief. Either party may show good cause by submitting a written statement that the Court will inspect ex parte. If relief is granted, the Court must preserve the entire text of the party’s statement under seal.

(2) Failure to Comply with Request. If at any time during the course of the proceedings it is brought to the attention of the Court that a party has failed to comply with this rule, the Court may order such party to permit the discovery or inspection, grant a continuance, or prohibit the party from introducing evidence not disclosed, or it may enter any other order it deems just under the circumstances. The Court may specify the time, place, and manner of making discovery and inspection and may prescribe such terms and conditions as are just. [Res. 100418A (04/10/18)]

4.04.360 Rule 17 – Subpoena.

(a) For Attendance of Witnesses – Form – Issuance. A Court Clerk, under the authority of the Judge, shall issue any subpoenas. The subpoena must state the name of the Court, the title, if any, of the proceeding and it must command each person to whom it is directed to attend and give testimony at the time and place specified in the subpoena. The Clerk shall issue a subpoena, signed and sealed, but otherwise in blank, to the party requesting it, the party shall fill in the blanks before it is served, and the party shall file copies of those subpoenas and their return of service with the Court.

(b) Production of Documents or Objects. The Court may, if compliance would not be unreasonably oppressive, require a witness by subpoena to produce certain documents or objects specifically described in the subpoena. Production may be ordered prior to trial so that the actual trial itself can be expedited. This rule is not intended to provide an additional means of discovery, but only to expedite trial by providing a time and place for the inspection of subpoenaed materials.

(c) Service. A subpoena may be served by a Police Officer, bailiff, or any person who is 18 years of age or over and who is not a party to the action or related in the third degree to the party requesting the subpoena. Personal service of subpoenas will only be made within the jurisdiction of the Puyallup Tribe.

(1) If the subpoena is being served on a person who resides outside the jurisdiction of the Puyallup Tribe, service by first class mail to the person’s last address of record will be permitted.

(d) Proof of Service. Proof of service of a subpoena must be made by the person who served the subpoena in accordance with subsection (c) of this section. If the person to be served cannot be located, the person who attempted to serve the subpoena shall file a statement of attempt to serve which must describe their efforts at service.

(e) Contempt. The Court may deem the failure of any person to obey a subpoena without adequate excuse contempt of the Court. After proper notice and hearing, the Court may impose any penalties available for contempt under PTC 4.04.790 or 4.04.800 upon the person.

(1) Material Witnesses.

(A) Warrant. On motion of the Prosecution or the defendant, the Court may issue a warrant, subject to bail, for the arrest of a material witness. The warrant may be issued only on a showing, by affidavit or on the record in open Court, that the testimony of the witness is material and that:

(i) The witness has refused to submit to a deposition ordered by the Court; or

(ii) The witness has refused to obey a lawfully issued subpoena; or

(iii) It may become impracticable to secure the presence of the witness by subpoena. Unless otherwise ordered by the Court, the warrant must be executed and returned in the same manner as an arrest warrant.

(B) Hearing. After the arrest of the witness, the Court shall hold a hearing no later than the next Court day. The witness will be entitled to be represented by counsel at their own expense or as appointed at the discretion of the Court.

(C) Release – Detention. Upon a determination that the testimony of the witness is material and that one of the conditions set forth in subsections (e)(1)(A)(i) through (iii) of this section exists, the Court shall set conditions for release of the witness. Release of a material witness may be delayed for a reasonable period of time until the testimony or deposition of the witness can be taken. [Res. 100418A (04/10/18)]

4.04.370 Rules 18 through 22 – Not applicable.

[Res. 100418A (04/10/18)]

Subchapter 3. Proceedings

Part I

4.04.380 Rule 23 – Trial by Court.

(a) Waiver of Right to Trial by Jury. Upon a waiver by the defendant of their right to a trial by jury at least 10 days before the trial readiness hearing, a trial by the Court will commence in accordance with these rules. The waiver by a defendant of their right to trial by jury must be an express waiver made intelligently and with an understanding of the consequences. Upon receipt of a written waiver of a jury trial, the Judge shall address the defendant personally in Court and on the record to ascertain that the defendant does personally and voluntarily waive their right to a trial by jury.

(b) Generally. The Prosecution has the burden of proving beyond a reasonable doubt that the defendant is guilty of an offense as charged. The Judge shall decide all issues of law and all issues of fact submitted to the Court. Parties may stipulate to factual issues and submit them for acceptance by the Court. If an opinion or memorandum of decision is filed, it will be considered sufficient if the findings of fact appear in the document.

(c) Trial Priority. Defendants held in custody have priority on the trial calendar over defendants released on bail, unless otherwise directed by the Court.

(d) Order of Trial. Trials must be conducted as set forth below and in accordance with these rules, unless the order is changed by the presiding Judge for good cause:

(1) Opening Statements. Both parties shall have the right to make an opening statement to summarize for the Court the facts, evidence, and arguments each will present and rely on during trial. The Prosecution shall present its statement first and the defense may make its opening statement at that time or after the Prosecution has completed the presentation of its case. Either side may waive the opening statement.

(2) Presentation of Prosecution’s Case. Upon the completion of the opening statements, the Prosecution shall present to the Court all the evidence and testimony of witnesses on the Prosecution’s side of the case. The defense must be given the opportunity to cross-examine any witnesses called by the Prosecution.

(3) Presentation of Defendant’s Case. Upon the completion of the presentation of the Prosecution’s case and after making any appropriate motions, the defense shall present to the Court all the evidence and testimony of witnesses for the defendant’s case. The Prosecution must be given an opportunity to cross-examine any witness called by the defense.

(4) Rebuttal. Rebuttal evidence may be presented by the Prosecution after the conclusion of the defense’s case when appropriate.

(5) Evidence. New evidence shall not be presented after the Prosecution and the defense have rested their cases, unless allowed by the Judge in the interest of justice.

(6) Closing Arguments. After the presentation of both sides of the case, both parties may make closing arguments in which they interpret the facts, argue the law, and generally summarize the case as they interpret it. Either side may waive their right to make closing arguments.

(7) Judgment. Upon the conclusion of the case, the Judge shall render a verdict.

(e) Objections. Objections may be made by either party to test the validity of any procedural, substantive, or evidentiary matter before the Court during any hearing or at trial. All objections must be made at the time the objectionable matter arises and the specific reasons for the objection must be stated. The Court may either rule immediately on the objection or take the matter under advisement for a later ruling.

(f) Motions at Trial. Both parties may make motions at trial; all motions must be made and submitted to the Court in writing unless otherwise directed by the Court throughout the course of the trial. Both parties will have the opportunity to argue their respective positions on any motion made. [Res. 100418A (04/10/18)]

4.04.390 Rule 23.1 – Trial by jury.

(a) Generally. The Prosecution has the burden of proving beyond a reasonable doubt that the defendant is guilty as charged. The Judge shall decide all issues of law submitted to the Court. The jury shall decide all issues of fact submitted to the Court. Parties may stipulate to factual issues and submit them for acceptance by the Court.

(b) Trial Priority. Defendants held in custody have priority on the trial calendar over defendants released on bail, unless otherwise directed by the Court.

(c) Jury Trial. Any adult defendant must have the right to a trial by jury of their peers. The jury must be composed of six persons and one alternate. To meet the standard of reasonable doubt, a decision unanimous in agreement by at least five of the six jurors is required.

(d) Waiver of Jury Trial. In addition to the procedures in PTC 4.04.380(a), the right to a jury trial will be considered waived by the defendant if the defendant fails to appear for the jury trial after receiving notice of the jury trial date.

(e) Order of Trial. Trials must be conducted as set forth below and in accordance with these rules, unless the order is changed by the presiding Judge for good cause:

(1) Opening Statements. Both parties shall have the right to make an opening statement to summarize for the Court and the jury the facts, evidence and arguments each will present and rely on during trial. The Prosecution shall present its statement first and the defense shall have the option of making its opening statement at that time or after the Prosecution has completed the presentation of its case. Either side may waive the opening statement.

(3) Presentation of Defendant’s Case. Upon the completion of the presentation of the Prosecution’s case and after making any appropriate motions, the defense shall present to the Court all the evidence and testimony of witnesses for the defendant’s case. The Prosecution must be given the opportunity to cross-examine any witnesses called by the defense.

(4) Rebuttal. Rebuttal evidence may be presented by the Prosecution after the conclusion of the defense’s case when appropriate.

(5) Closing Arguments. After the presentation of both sides of the case, both parties shall have the right to make closing arguments in which they may interpret the facts, argue the law and generally summarize the case as they interpret it. Either side may waive their right to make closing arguments.

(6) Jury Instructions. The Court shall give final instructions after the close of evidence and before the closing arguments are given. All instructions must be in writing and filed as part of the record.

(7) Jury Deliberations. Upon completion of the closing arguments and the reading of instructions to the jury by the Court, the jury shall retire to a place where privacy and freedom from outside interference and interruption are assured. The jury members shall first elect from among their members a foreman who shall act as spokesman for the jury. They shall then evaluate and weigh the evidence, resolve the conflicts and inconsistencies, apply the law to the facts as previously instructed by the Court and reach a verdict of guilty or not guilty by a vote of at least five out of six. The foreman shall notify the Judge when a verdict has been reached.

(f) Objections. Objections may be made by either party to test the validity of any procedural, substantive, or evidentiary matter before the Court during any hearing at trial. All objections shall be made at the time the objectionable matter arises and the specific grounds thereof shall be stated. The Court shall either rule immediately on the objection or take the matter under advisement for a later ruling in its discretion.

(g) Motions at Trial. Both parties may make motions at trial; all motions must be made and submitted to the Court in writing unless otherwise directed by the Court throughout the course of the trial. Both parties will have the opportunity to argue their respective positions on any motion made. [Res. 100418A (04/10/18)]

4.04.400 Rule 24 – Trial jurors.

(a) Eligible Jurors. The Court Administrator shall prepare a list of eligible jurors each year. The list must be comprised of all persons 18 years of age or older who are members of the Puyallup Indian Tribe who reside within the exterior boundaries of the Puyallup Indian Reservation or other Tribal lands, or within a radius of 50 miles outside the exterior boundaries of the Reservation.

(b) Juror Summons. Persons selected to serve on a jury shall be summoned by mail or personal service.

(1) The mailing of jury summons must be accomplished by the Puyallup Tribal Mail-Out Committee (“Mail-Out Committee”). The Court Clerk shall send notice of the jury trial date and the actual jury summons form to the Enrollment Department, along with a randomly drawn number to be applied repetitively against the membership roll, for juror selection. The Enrollment Department shall then draw a pool of potential jurors, based upon the number provided by the Court, and they shall forward each juror’s name and address to the Mail-Out Committee. The Mail-Out Committee shall mail the summons in postage prepaid envelopes. The Executive Secretary of Administration shall keep a record of the date the jury summons were served through executing a “certificate of service” which will be provided by the Court Clerk, noting the names of the potential jurors who were served with the summons. One certificate of service is sufficient for this purpose. The Executive Secretary of Administration shall file a copy of the certificate with the Puyallup Tribal Court, in order to record the service date. A jury summons that is properly addressed to the person’s current mailing address, postage prepaid, and sent in the normal course of business will be presumed to have reached the addressee.

(2) Personal service must be accomplished by handing it to the person summoned or leaving it at the person’s dwelling, house, or usual place of abode with a person 18 years of older and of suitable discretion that resides there.

(3) The following are exempted from the pool of potential jurors:

(A) Tribal Council members;

(B) Attorneys at law;

(D) Officials and staff of the Enrollment Department;

(E) Tribal Court staff;

(F) Prosecutor’s Office; and

(G) Probation Department staff.

(1) Court Examination. The Court itself may conduct the examination of prospective trial jurors and afterwards may permit the Prosecution and counsel for the defendant to supplement the examination with voir dire in accordance with subsection (c)(2) of this section, or the Court may conduct all of the examination and ask any questions supplied by either the Prosecution or the defendant as it deems proper.

(2) Voir Dire. The Prosecution and defense, in that order, will have the opportunity to ask questions of the prospective jurors as they are individually called upon by the Court to determine if there is any reason why a particular candidate should not be seated as a juror. Both parties may question the validity of any question asked by the other party of a prospective juror and the Court may rule on the validity of the question.

(3) Challenges. When both parties have completed their voir dire questioning, they shall confer privately with the Judge and state all challenges they have to make against any prospective juror.

(A) Peremptory Challenges. Both parties will have three peremptory challenges with which they may disqualify any prospective juror and will not need to state any reason for doing so. If there is more than one defendant, three additional peremptory challenges may be granted per defendant.

(B) Challenges for Cause. When it is established that a prospective juror is prejudiced, biased, or otherwise unable to sit as a fair and impartial juror, they may be disqualified by a challenge for cause by either party. The allowance or disallowance of a challenge for cause will be within the discretion of the Court. The number of challenges for cause by either party is unlimited.

(i) Discretion of the Court. The Judge hearing the particular case in the Court may decide on the bias of potential jurors on challenges for cause. The decision whether or not to dismiss a potential juror for cause will be made on the basis of whether or not the Judge believes the individual challenged could give both parties a fair trial. Peremptory challenges are in the sole discretion of the party making the challenge so long as the challenge is not based on race, ethnicity, or sex.

(4) Oath to Trial Jury. After the six members and one alternate of the jury have been selected and seated, the Court shall administer an oath by which the jury swears that it will act fairly and impartially in the trial it will hear.

(d) Penalty for Failure of Juror to Appear. At the Court’s discretion, a person summoned for jury service who intentionally fails to appear as directed may be fined $50.00 or held in contempt of Court or both.

(e) Juror Fee. Each juror will be entitled to receive a fee for each day serving on jury duty, in an amount established by the Court rules; provided, that the juror does not receive compensation through their employer. [Res. 100418A (04/10/18)]

4.04.410 Rule 25 – Judge disability.

(a) During Jury Trial. If, by reason of death, sickness, or other disability, the Judge before whom a jury trial has commenced is unable to proceed with the trial, any other Judge regularly sitting or assigned to the Court may proceed and complete the trial. A defendant may move for a new trial due to the disability of the original trial Judge. Such a motion will be denied unless the defendant can demonstrate to the Court prejudice sufficient to overcome the cost and time required for a new trial.

(b) During Bench Trial. If, by reason of death, sickness, or other disability, the Judge before whom a bench trial has commenced is unable to proceed with the trial, a mistrial must be declared. A new trial must commence before any other Judge regularly sitting or assigned to the Court.

(c) After Verdict or Finding of Guilt. If, by reason of absence, death, sickness, or other disability, the Judge before whom the defendant has been tried is unable to perform their duties after the verdict or finding of guilt, any other Judge regularly sitting may perform such duties and may order a new trial to be held. [Res. 100418A (04/10/18)]

4.04.420 Rule 26 – Not applicable.

[Res. 100418A (04/10/18)]

4.04.430 Rule 27 – Proof of official record.

A party may prove an official record, an entry in such a record, or the lack of a record or entry in the same manner as in a civil action. [Res. 100418A (04/10/18)]

4.04.440 Rule 28 – Interpreters.

The Court may select, appoint, and set the reasonable compensation for an interpreter. The compensation must be paid from funds provided by law or by the Court, as the Court may direct. [Res. 100418A (04/10/18)]

Part II

4.04.450 Rule 29 – Motion for judgment of acquittal.

(a) Motion before Submission to Jury. After the close of the Prosecution’s evidence or after the close of all the evidence, the Court on the motion of a defendant or on its own motion shall enter a judgment of acquittal of any offense charged in the complaint if the evidence is insufficient to sustain a conviction of such offense(s). If a defendant’s motion for judgment of acquittal at the close of evidence offered by the Prosecution is not granted, the defendant may proceed to offer evidence without having reserved the right to do so.

(b) Reservation of Decision on Motion. If a motion for judgment of acquittal is made at the close of all of the evidence, the Court may reserve decision on the motion, submit the case to the jury, and decide the motion either before the jury returns a verdict or after it returns a verdict, or after it returns a verdict of guilty or is discharged without returning a verdict.

(c) Motion after Discharge of Jury. If the jury returns a verdict of guilty or is discharged without having returned a verdict, a motion for judgment of acquittal may be made or renewed immediately after the jury is discharged, or within a set period of time as determined by the Court; if the verdict of guilty is returned, the Court may, on such motion, set aside the verdict and enter a judgment of acquittal. If no verdict is returned, the Court may enter a judgment of acquittal.

(d) Standard for Granting Motion. The standard on a motion for judgment of acquittal is whether, viewing the evidence presented in the light most favorable to the Prosecution, a reasonable jury could decide that this admissible evidence was adequate and sufficient to support a conclusion of defendant’s guilt beyond a reasonable doubt. If the Judge decides that a reasonable jury could hold the defendant guilty, the motion must be denied. If there does exist some doubt that the Judge believes that a reasonable jury might disagree, the motion must be denied. If, however, the Judge concludes that a reasonable jury would necessarily have to have reasonable doubt, the motion must be granted.

(e) Waiver of the Motion. The defendant must make a motion for judgment of acquittal at the close of all the evidence or they have waived their right to the motion. A motion for judgment of acquittal made at the close of the Prosecution’s evidence and denied must be renewed at the close of all the evidence or it is waived. [Res. 100418A (04/10/18)]

4.04.460 Rule 29.1 – Motions at trial.

(a) Motions at Trial. Both parties may make motions at trial; all motions must be made and submitted to the Court in writing, unless otherwise directed by the Court throughout the course of the trial. Both parties will have the opportunity to argue their respective positions on any motion made. [Res. 100418A (04/10/18)]

4.04.470 Rule 29.2 – Habeas corpus.

(a) Availability of Writ.

(1) Except as provided in subsection (a)(2) of this section every person within the jurisdiction of the Puyallup Tribe imprisoned or otherwise restrained of liberty may prosecute a writ of habeas corpus to inquire into the cause of imprisonment or restraint and, if illegal, to be delivered from imprisonment or restraint.

(2) The writ of habeas corpus is not available to attack the validity of the conviction or sentence of a person who has been adjudged guilty of an offense by a court of competent jurisdiction and has exhausted the remedy of appeal, nor is it available to attach to the legality of an order revoking a suspended or deferred sentence. Moreover, a person may not be released on a writ of habeas corpus due to any technical defect in commitment not affecting the person’s substantive rights.

(3) A habeas corpus petitioner shall exhaust all Tribal Court remedies before seeking any other remedy available to them.

(b) Issuance of Writ.

(1) Application for a writ of habeas corpus is made by petition signed either by the party for whose relief it is intended or by a person on the petitioner’s behalf, and must be filed with the Court Clerk. The application must specify:

(A) That the petitioner is unlawfully imprisoned or restrained of liberty;

(B) Why the imprisonment or restraint is unlawful;

(D) Name the parties to the writ: all parties must be named or otherwise described so that they may be identified. The Chief of Police, Prosecutor, and Chief Judge of the Tribal Court must all be named. The Chief of Police, Tribal agency, or Tribal entity who the petitioner claims has restrained their liberty must be named as the respondent.

(1) Any Justice of the Court of Appeals for the Puyallup Tribe may grant a writ of habeas corpus upon petition by or on behalf of any person imprisoned or otherwise restrained of liberty within the jurisdiction of the Puyallup Tribe.

(2) After a petition for writ of habeas corpus is presented to the Court, the Judge shall immediately issue an order directing the respondent, through the Prosecutor, to show cause why the writ should not be allowed, unless the petition on its face is barred by subsection (a)(2) of this section, or is otherwise frivolous. The Prosecutor shall represent the Chief of Police, Tribal agency, or Tribal entity in any proceedings. The show cause order must be served as soon as practicable on both the respondent and Prosecutor by personal service or service by first class mail to the mailing addresses on file with the Tribe, unless otherwise directed by the Court. Upon issuance of a show cause order:

(A) The Judge shall order the respondent, through the Prosecutor, to appear in writing in opposition to the issuance of the writ as soon as is practicable and not more than 72 hours from the date, excluding weekends and holidays, that the show cause order issues.

(B) The Judge shall rule on the show cause order within five days after the respondent, through the Prosecutor, files a written appearance in opposition or the appearance period expires, whichever comes first. Upon making a ruling, the Judge shall do one of the following, as appropriate:

(i) If the motions, files, and records of the case conclusively show that the petitioner is entitled to no relief, issue a judgment denying the petition without prejudice and explain the reason for denial.

(ii) If the motions, files, and records of the case conclusively show that the petitioner is entitled to relief, issue a writ of habeas corpus requiring that a return be made.

(d) Refusal to Obey Writ Is Contempt. If a person commanded by the writ refuses to obey, that person must be held in contempt.

(e) Habeas Remedy Not Available. Civil actions shall not constitute a sufficient “severe restraint on individual liberty” to warrant a habeas remedy under this rule, including:

(1) Removal from Tribal employment, loss of Tribal benefits, and restrictions on entering into certain Tribal facilities;

(2) Removal from Tribal Council or office, loss of Tribal benefits, and restrictions on entering into certain Tribal facilities;

(3) Eviction from unsafe housing;

(4) Exclusion of non-member Indian from the Reservation; and

(5) Tribal government election results or procedures. [Res. 100418A (04/10/18)]

4.04.480 Rule 29.3 – Extradition.

Nothing in this chapter will be considered to limit or restrict an individual’s right to seek a writ of habeas corpus in Tribal Court. If a Police Officer arrests an individual based on a warrant issued by another jurisdiction, or a reasonable belief that a warrant has been issued, the Officer may hold such individual for up to 48 hours for transport by authorized officials after any sentence from the Court has been served. If officials representing the other jurisdiction do not retrieve the defendant within that time, they must be released. [Res. 100418A (04/10/18)]

4.04.490 Rule 29.4 – Speedy trial.

(a) Right to a Speedy and Public Trial. A defendant held in jail pending trial must be brought to trial no later than 90 days after the date of arraignment. A defendant released from jail, whether or not subjected to conditions of release pending trial, must be brought to trial no later than 180 days after the date of arraignment. The following extensions of time limits apply to their specific sections, despite the preceding time limits:

(1) Revocation of Release. A defendant whose release has been revoked by the Court must be brought to trial no later than 90 days following the revocation or previously scheduled trial date, whichever is sooner.

(2) Failure to Appear. When a defendant fails to appear for any hearing, the Judge may vacate any future hearings on the Court calendar and the Judge may issue a bench warrant. Such failure to appear constitutes a waiver of the right to a speedy trial. When the defendant next appears before the Court, the Judge may either begin the speedy trial clock at zero, restart the speedy trial clock from the time the defendant failed to appear, or restart the speedy trial clock from the time the defendant returns to Court.

(A) The following periods of delay must be excluded in computing the time for the purposes of this rule:

(i) Any period of delay resulting from other proceedings concerning the defendant, including:

a. Any examinations, to determine the mental competency or physical capacity of the defendant;

b. Delay resulting from transportation of any defendant from another district, or to and from places of examination or hospitalization, except that any time consumed in excess of 10 days from the date an order of removal or an order directing such transportation, and the defendant’s arrival at the destination shall be presumed to be unreasonable; and

c. Delay reasonably attributable to any period, not to exceed 30 days, during which any proceeding concerning the defendant is actually under advisement by the Court.

(3) Trial Preparation Time. The defendant is entitled to reasonable time to prepare for trial after entering a plea of not guilty.

(4) Extensions. When a trial is not begun on the date set because of unavoidable or unforeseen circumstances beyond the control of the Court or the parties, the Court, even if the time for trial has expired, may extend the time within which trial must be held in increments of no more than 10 Court days for a bench trial and no more than 15 Court days for a jury trial, unless the defendant will be substantially prejudiced in their defense. The Court must state on the record or in writing the reasons for the extension.

(5) Disqualification of Judge. In the event that the trial Judge is disqualified by affidavit or the Judge disqualifies themselves under PTC 4.16.200(a) through (c) the speedy trial date will be extended beyond its current expiration by 15 days.

(6) Continuances. The Court may continue a trial beyond the speedy trial period as follows:

(A) Upon a waiver made on the record by the defendant or all defendants. The waiver will be effective when approved by the Court on the record or in writing.

(B) On motion of the Prosecutor, the Court, or a party, the Court may continue the case when required in the administration of justice and when the defendant will not be substantially prejudiced in the presentation of the defense. The motion must be filed on or before the date set for trial or the last day of any continuance or extension granted pursuant to this rule. The Court must state on the record or in writing the reasons for the continuance. The bringing of such motion by or on behalf of any party waives that party’s objection to the requested delay.

(7) Waiver of Speedy Trial. A defendant may waive their right to a speedy trial. The waiver must be made by the defendant on the record. When the defendant is absent from the hearing and the absence is excused by the Court, the defendant may authorize their counsel to enter their waiver and consent on the record. The waiver must be to a date certain. When a defendant who has waived the right to counsel is absent from the hearing and the absence is excused by the Court, the defendant’s waiver must be made before the hearing date and must be in writing and be signed by the defendant. The waiver must be to a date certain. [Res. 100418A (04/10/18)]

4.04.500 Rule 30 – Jury instructions.

(a) Filing. By the date of the trial readiness hearing, or at a later time if directed by the Court, either party may file a written request that the Court instruct the jury on the law as stated in the requests. At that same time, the party filing the request shall give copies of request and instructions to the adverse party.

(1) Format. Each instruction must be labeled and must be numbered at the bottom center of the page to identify the party submitting the instruction (e.g., “Plaintiff’s Instruction No. 1”), and must include any citation to the authority that forms the basis for it. All instructions must be short, concise, understandable, and neutral statements of law. Argumentative instructions are improper and will not be given.

(b) Objections. Each party shall file its objections, if any, to the jury instructions proposed by any other party no later than five business days before trial. Any such objections must recite the proposed instruction in its entirety and specifically highlight the objectionable language contained in the instructions. The objection must contain both a concise argument why the proposed language is improper and citation to relevant legal authority. Where applicable, the objecting party must submit, in conformity with subsection (a)(1) of this section, an alternative instruction covering the pertinent subject matter or principle of law. Either party may submit a brief written reply in support of its proposed instructions on the day of trial. The Court shall inform both parties of its decision regarding the requests prior to their arguments to the jury, but the Court shall instruct the jury in regards to the instructions after the arguments are completed.

(1) No party may assign as error any portion of the charge or omission from the instructions unless they object to the instructions before the jury retires to consider its verdict, stating distinctly the matter to which they object and the grounds of their objection. Opportunity must be given to make the objection out of the hearing of the jury and, on request of any party, out of the presence of the jury.

(c) Discretion of the Court. The Court may decide whether to include the requested instructions or not to include the requested instructions. In addition, the decision whether or not to permit the jury to have a written copy of the instructions is discretionary with the Judge. [Res. 100418A (04/10/18)]

4.04.510 Rule 31 – Verdict.

(a) Upon the completion of the closing arguments, the Court or jury, as the case may be, shall render its verdict.

(b) Verdict by Court. The Court shall enter a verdict of guilty if it believes the defendant to be guilty beyond a reasonable doubt; otherwise, the Court shall render a verdict of not guilty. The Court may render a verdict immediately after closing arguments or may take the case under advisement and rule on it at set later date.

(c) Verdict by Jury. If at least five of the six jurors have found beyond a reasonable doubt that the defendant is guilty, the Court shall render a verdict of guilty. Otherwise, the Court shall render a verdict of not guilty in accordance with subsection (d) of this section or order a mistrial in accordance with subsection (h) of this section.

(1) Return. The verdict in a trial by jury must be unanimous among at least five of the six jurors. It shall be returned by the jury to the Judge in open Court.

(d) Verdict of Not Guilty. If a verdict of not guilty is rendered by either the Court or the jury, judgment must be rendered immediately and the defendant must be immediately released from custody.

(e) Verdict of Guilty. If a verdict of guilty is rendered by either the Court or jury, the Court shall advise the defendant(s) in open Court, set a date for sentencing, and enter a judgment of guilty in the Court’s records.

(1) Conviction of Lesser Offense. The defendant may be found guilty of an offense necessarily included in the offense charged or in an attempt to commit either the offense charged or an offense necessarily included in it if the attempt is an offense.

(f) Several Defendants. If there are two or more defendants, the jury at any time during its deliberations may return a verdict or verdicts with respect to a defendant or defendants as to whom it has agreed; if the jury cannot agree with respect to all, the defendant or defendants as to whom it does not agree may be tried again.

(g) Poll of Jury. When a verdict is returned and before it is recorded, the jury may be polled at the request of any party or upon the Court’s own motion. If upon the poll there is not the required concurrence, the jury may be directed to retire for further deliberations or they may be discharged.

(h) Mistrial. If a mistrial is declared because there is a hung jury or deadlocked jury when the verdict is returned, or if the Judge declares a mistrial for any other reason, the Judge shall order the case reset with a new trial date and seek the recommendation of the Prosecution. In that event, the Prosecution may seek to:

(1) Move forward with a new trial;

(2) Enter into a plea agreement with the defendant in accordance with PTC 4.04.250; or

(3) Dismiss the charges.

(A) After hearing the Prosecution’s recommendation, the Judge may accept the recommendation or dismiss the charges if a second prosecution would result in gross unfairness to the defendant.

(B) If the defendant is to be tried again following a declaration by the judge of a mistrial or following an order of that judge for a new trial, the trial must begin no later than 90 days from the date the action occasioning the retrial becomes final. [Res. 100418A (04/10/18)]

Part III

4.04.520 Rule 32 – Judgment and sentencing.

(a) Judgment. The Judge shall sign the judgment and the Clerk shall enter it on the record.

(1) A judgment of conviction must be stated in the plea, the verdict, or the findings and the adjudication and sentence as well.

(2) If the defendant is found not guilty or for any other reason is entitled to be discharged, judgment will be entered accordingly.

(b) Presentence Investigation.

(1) When Made. If the Court deems it helpful, it may request a presentence investigation be made by a Probation Officer or any other competent person whom the Court requests to conduct such an investigation. This presentence investigation, if required, must be conducted and a report issued prior to the sentencing hearing or a change of plea hearing.

(A) The defendant shall not be required by the Court or Probation to submit to an interview prior to a change of plea being entered.

(2) Reports. The reports must contain any prior criminal record of the defendant and any information as to their character, financial condition, behavior, and other factors which may be helpful in imposing a judgment and sentence, or in granting probation to the defendant, how much time the defendant has been incarcerated, and any other information as may be required by the Court.

(3) Disclosure. Before imposing sentence, if the Court has requested and received a presentence report, the Court shall make the entire report available to the defendant’s counsel, defendant, and Prosecutor.

(c) Withdrawal of Plea of Guilty. A motion to withdraw a plea of guilty or no contest may be made only before sentence is imposed or sentence is suspended. To correct manifest injustice, the Court after sentencing may set aside a judgment of conviction and permit the defendant to withdraw their plea of guilty.

(d) Probation. After conviction of an offense, the Judge may place the defendant on probation.

(e) Legal Financial Obligations. When a defendant is convicted of a crime, the Court may impose legal financial obligations as part of the judgment and sentence. Legal financial obligations include victim restitution; crime victims’ compensation fees; costs associated with the offender’s prosecution and sentence; fines; penalties; and assessments. Legal financial obligations will be non-interest bearing.

(1) The defendant must be fully informed of all potential consequences of a restitution agreement and restitution must be determined in an amount certain, with a clear maximum amount of restitution, at a hearing within 180 days of judgment and sentencing or the date of entry into a deferred prosecution or deferred judgment; the hearing may be waived in writing by agreement of the parties. The Court may continue the restitution hearing for good cause past the 180-day deadline. Restitution must be based on easily ascertainable damages for injury to or loss of property, actual expenses incurred for treatment for injury, and lost wages resulting from injury. Restitution shall not include reimbursement for damages for mental anguish, pain and suffering, or other intangible losses.

(2) The Court may take into consideration the defendant’s ability to pay when considering whether to impose financial obligations; except when considering whether to impose victim restitution, the Court shall not take into consideration the defendant’s ability to pay. In determining the amount and method of payment of costs, the Court may take account of the financial resources of the defendant and the nature of the burden that payment of costs will impose. A defendant who is not in default in the payment of legal financial obligations may petition for remission of all or part of the obligations owed, except for victim restitution, if payment of the amount due will result in manifest hardship to the defendant or the defendant’s family. The defendant shall prove by a preponderance of the evidence that hardship or inability to pay or both exists.

(3) Prior to payment of any other monetary obligations, the defendant’s payments must be first applied to any victim restitution costs that have not been fully compensated from other sources. After restitution is fully satisfied, payment is distributed proportionally in the following order: first to insurance or other sources with respect to a loss that has provided compensation to victims; second to crime victims’ assessments; and third to costs, fines, and other assessments required by the Court. Costs of incarceration, if ordered by the Court, will be satisfied last.

(4) The requirement that defendant pay a monthly sum toward a legal financial obligation is a condition of the sentence and the defendant is subject to penalties for noncompliance. Sanctions for a willful failure to pay can include incarceration or other penalties such as community service. If the failure to pay is not willful, the Court may modify the defendant’s legal financial obligations; the defendant shall prove by a preponderance of the evidence that a hardship or inability to pay exists.

(5) Civil contempt sanctions may also apply to a defendant who fails to pay financial obligations. If the Court finds that the failure to pay was willful, the Court may impose contempt sanctions including incarceration. If the Court determines the failure to pay was not willful, the Court may modify the terms of payment, or reduce or revoke the amount of the financial obligation.

(f) Sentence.

(1) Imposition of Sentence. The sentence will be imposed immediately following either conviction by the Court or jury, upon a plea of guilty, or the Court may grant a continuance and decide the sentence at set later date if good cause to do so can be shown by the requesting party. Before imposing sentence, the Court shall afford counsel an opportunity to speak on behalf of the defendant and the Court shall address the defendant personally and ask if they wish to make a statement on their own behalf and if they wish to present any information in mitigation of punishment. The Prosecutor shall have an equal opportunity to speak to the Court if they desire. Considerations in sentencing include:

(A) The crime committed;

(B) The prospects of rehabilitation of the offender;

(D) The offender’s criminal history;

(E) The safety of the community, victim, or the offender;

(F) Victim impact statements;

(G) The offender’s ability to pay a fine; and

(H) Other factors the Court deems relevant.

(2) Notification of Right to Appeal. Following imposition of the judgment, the Court shall inform the defendant that they have a right to appeal providing the defendant was found guilty by either the Court or the jury. An appeal shall not exist upon a plea of guilty. At the defendant’s request, the Court Clerk shall prepare and file a notice of appeal on behalf of the defendant. [Res. 100418A (04/10/18)]

4.04.530 Rule 32.1 – Post trial motions.

Either party may make motions, all of which must be made in writing unless otherwise directed by the Court, after the verdict or judgment has been rendered. Both parties must have the opportunity to argue their respective positions on any motion made. [Res. 100418A (04/10/18)]

4.04.540 Rule 32.2 – Procedures for appeal.

(a) Grounds for Appeal. A party may appeal a final order of the Court to the Puyallup Tribal Court of Appeals upon an allegation, made in good faith, that an error was made by the Puyallup Tribal Court that prejudiced the outcome of the proceedings before that Court or that an error was made by that Court in the interpretation of law.

(b) Notice of Appeal. The party wishing to appeal shall file a notice of appeal with both Courts within 20 days after the decision being appealed is rendered.

(c) Defendant’s Appeal Bond. The defendant’s notice of appeal to the Puyallup Tribal Court shall be accompanied by a bond in the amount of $50.00, which will be returned if they prevail on appeal or forfeited if they do not. [Res. 100418A (04/10/18)]

4.04.550 Rule 32.3 – Record on appeal.

(a) Record on Appeal. The record on appeal must consist of the recording or transcript of proceedings in the Court and all documents, exhibits, motions, briefs, and memoranda filed with the Court in that case along with all rulings, opinion, findings of fact, and conclusions of law issued by the Court.

(b) Transcript, Cost. Any party requesting a transcript of the proceedings before the Court shall bear the cost of the transcript. In the event the Appellate Court requires that a written transcript be provided on appeal, it will be provided to both parties free of charge. [Res. 100418A (04/10/18)]

4.04.560 Rule 33 – New trial.

After a verdict of guilty has been rendered against the defendant, they may make a motion for a new trial. The motion must specifically allege the errors made by the Court during the trial which form the basis for the motion. The defendant shall file the motion within 20 days after the initial verdict was rendered. The motion must be granted or denied as justice dictates. [Res. 100418A (04/10/18)]

4.04.570 Rule 34 – Arrest of judgment.

(a) The Court on motion of the defendant may grant a stay of execution for as long as justice dictates after judgment has been entered. A motion on arrest of judgment may only be based upon failure of the complaint to charge an offense or upon lack of jurisdiction of the Court over the offense.

(1) A motion for arrest of judgment must be served and filed within 10 days after judgment has been entered. The motion for arrest of judgment must identify the specific reasons as listed in subsection (a) of this section and law as to each ground on which the motion is based. [Res. 100418A (04/10/18)]

4.04.580 Rule 35 – Correction or reduction of sentence.

The Court may correct an illegal sentence at any time and may correct a sentence imposed in an illegal manner at any time before the sentence has been satisfied under the disposition. Or, if upon appeal it is so ordered, the Court may correct the sentence immediately upon order from the Appellate Court. The Court may also reduce a sentence upon revocation of probation as provided by law. [Res. 100418A (04/10/18)]

4.04.590 Rule 35.1 – Motion to set aside the verdict.

The defendant may file a motion to set aside the verdict if they believe the jury verdict was contrary to the law or the evidence presented at trial. The defendant shall file the motion within 20 days after the initial verdict was rendered. The Court will set the jury verdict aside only where it finds there was insufficient evidence to support the verdict and there was reasonable doubt as to the defendant’s guilt as a matter of law. [Res. 100418A (04/10/18)]

4.04.600 Rule 36 – Clerical error.

Clerical mistakes in judgments, orders or other parts of the record and errors in the records arising from oversight or omission may be corrected by the Court at any time, as the Court orders. [Res. 100418A (04/10/18)]

4.04.610 Rule 37 – Not applicable.

[Res. 100418A (04/10/18)]

4.04.620 Rule 38 – Stay of execution and relief pending review.

(a) Stay of Execution.

(1) Imprisonment. A sentence of imprisonment must be stayed if an appeal is made by the defendant and notice of appeal is filed with the Court Clerk or by the Clerk on behalf of the defendant within seven days after imposition of judgment.

(2) Fine. A sentence to pay a fine or a fine and costs if an appeal is taken may be stayed by the Court upon the filing of the notice of appeal; provided, that the Court may require the defendant pending appeal to deposit the whole, or any part, of the fine and costs in the registry of the Court, or give a bond for payment of it.

(3) Probation. An order placing the defendant on probation may be admitted to probation if they have been sentenced to imprisonment pending the appeal.

(b) Bail. The defendant may be allowed to post bail if they have been sentenced to imprisonment pending the appeal. [Res. 100418A (04/10/18)]

4.04.630 Rule 39 – Not applicable.

[Res. 100418A (04/10/18)]

4.04.640 Rule 40 – Not applicable.

[Res. 100418A (04/10/18)]

Subchapter 4. Supplementary and Special Proceedings

4.04.650 Rule 41 – Search and seizure.

(a) Suppression. Evidence obtained by Police Officers, or other Tribal agent, by unlawful search and seizure in violation of the individual’s constitutional rights or rights under the Indian Civil Rights Act is inadmissible to be used in a criminal proceeding.

(b) Property Which May Be Seized with the 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;

(2) Contraband, material objects acquired in consequence of commission of a criminal offense, or things otherwise criminally possessed; and

(3) Property that has been used, designed, or intended to commit or conceal the commission of a criminal offense. [Res. 100418A (04/10/18)]

4.04.660 Rule 41.1 – Evidence.

(a) All evidence which the Court deems proper and necessary for reaching a true and just verdict, provided it is otherwise admissible, shall be admitted subject to rules governing the permissible scope of search and seizure. In reaching a decision on the admissibility of any evidence, the Court may defer to the Federal Rules of Criminal Evidence and the Washington State Rules of Evidence.

(b) Witnesses. The testimony of witnesses shall be in person, unless the witness, for good reason, is or will be unable to appear personally in Court, in which case arrangements shall be made by the party calling the witness, for both parties to simultaneously question the witness under oath for purposes of obtaining a written statement for presentation to the Court at trial. Before either party relies or comments on a written statement at trial, it shall be presented to the Judge and they shall strike out any questions, answers or statements they deem improper. Any witness testifying in Court or being questioned for purposes of a written statement shall be subject to direct examination by the party who called them as a witness, cross-examination by the opposing party, redirect examination by the party who called them and re-cross-examination by the opposing party.

(c) The Defendant as a Witness. The defendant cannot be compelled to testify as a witness. If the defendant invokes this privilege and does not testify, the Court and jury shall not consider such action as an indication of evidence of guilt. If the defendant voluntarily testifies he or she shall be subject to direct, cross, redirect, and re-cross-examination, the same as any other witness.

(d) Requirement of the Original. An original writing, recording, or photograph is required in order to prove its content unless these rules provide otherwise.

(1) For the purpose of proving the content of a writing, recording, or photograph, the original itself is regarded as the primary or best evidence, unless the item of evidence can be authenticated or identified to the satisfaction of the Court. To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.

(e) Proof of Official Record. Proof of written records, photographs, and other documentary evidence may be presented as long as they are reliably identified by the party offering them or if they are certified as true and accurate copies by a reliable source. [Res. 100418A (04/10/18)]

4.04.670 Rule 41.2 – Issuance of search warrant.

(a) Only a Judge of the Puyallup Tribal Court shall issue a search warrant.

(b) Application for a search warrant may be made only by the Prosecutor or a Police Officer acting on behalf of the Tribe.

(c) The application for the proposed warrant must consist of a sworn affidavit setting forth the facts and circumstances tending to show that such things are in the places, or in the possession of individuals, to be searched. The affidavit can be based upon hearsay so long as a basis for crediting the hearsay is also presented in the affidavit; the source of the affiant’s and the informer’s knowledge must also be shown. But, more conclusory statements made by the affiant shall not be sufficient to support probable cause.

(1) Necessity of Affidavit. A search warrant will be issued only upon a sworn affidavit which presents facts to the Judge upon which they can independently find that probable cause exists sufficient to issue the warrant. The existence of probable cause sufficient to support the issuance of the search warrant must be determined by the Judge from the face of the affidavit. However, affidavits do not have to be extremely detailed or perfect. They should be interpreted consistent with common sense and the dictates of the circumstances. It is proper under this rule to use printed affidavit forms so long as sufficient information about the case at hand is provided on the form.

(d) Instead of the written affidavit described in subsection (c) of this section, the Judge may take an oral statement under oath by telephonic or electronic means when circumstances exist making it impractical for a Prosecutor or Police Officer to obtain a warrant in person. The oral statement must be recorded. In such cases, the recording of the sworn oral statement, and the transcribed statement, will be considered to be an affidavit for the purposes of this subsection. In such cases, the Judge shall certify receiving the recording of the sworn oral statement and the transcribed statement, and it must be retained as a part of the record of proceedings for the issuance of a warrant. [Res. 100418A (04/10/18)]

4.04.680 Rule 41.3 – Affidavit hearing.

(a) Before ruling on the application, the Judge may require the person making the affidavit to appear personally, examine the statement, the affiants, the applicant and any witnesses they may produce, and may call such witnesses they consider necessary to a decision. The Court shall record the hearing and it must be made part of the affidavit. The record shall be admissible as evidence on any motion to suppress.

(b) If the Judge finds that the application meets the requirements of PTC 4.04.690, and that, on the basis of the record made before them, the grounds for the application exist, or there is probable cause to believe they exist, and that the search will discover things specified in the application and subject to seizure under PTC 4.04.650(b)(1) through (3), the Judge shall issue a search warrant based on their findings and in accordance with the requirements of PTC 4.04.670. If the Judge finds that the application does not meet the requirements of PTC 4.04.690, the Judge shall deny the application.

(c) The Judge may orally authorize, through telephonic means or otherwise, a Police Officer or Officer of the Court to sign the Judge’s name on a duplicate original warrant. A duplicate original warrant will be a search warrant for the purposes of this rule, and it must be returned to the Judge. In such cases, a Judge shall enter on the face of the original warrant the exact time of the issuance of the warrant and the Judge shall sign and file the original warrant in the manner provided by law.

(d) Until the warrant is executed, the proceedings upon application for a search warrant must be conducted with secrecy appropriate to the circumstances. [Res. 100418A (04/10/18)]

4.04.690 Rule 41.4 – Contents of search warrant.

(a) A search warrant must be dated and must authorize its execution by a Police Officer authorized by law to execute search warrants.

(b) The warrant must state, or describe with particularity:

(1) The identity of the Judge issuing the warrant and the date the warrant was issued;

(2) The name of the person to be searched, or the location and designation of the premises or places to be searched;

(3) The things constituting the object of the search;

(4) The things authorized to be seized; and

(5) The period of time in which the warrant must be executed shall not exceed 10 days from the date of issuance. [Res. 100418A (04/10/18)]

4.04.700 Rule 41.5 – Execution of search warrant.

(a) Except as otherwise provided in this rule, the search warrant must be executed between the hours of 7:00 a.m. and 7:00 p.m. and within 10 days from the date of issuance. If reasonable cause is shown and an appropriate provision in the warrant exists, the Judge issuing the warrant may, by endorsement upon the face of the warrant, authorize its execution at any time of the day or night and may further authorize its execution after 10 days from date of issuance.

(1) A search warrant must be executed only within the period specified, at the times authorized by the warrant, and by any Police Officer charged with its execution. The Officer may be accompanied by any other authorized person(s) as may be reasonably necessary for the successful execution of the warrant with all practicable safety.

(b) The executing Officer shall, before entering the premises, give appropriate notice of their identity, authority, and purpose to the person to be searched, or to the person in apparent control of the premises to be searched.

(c) Before undertaking any search or seizure pursuant to the warrant, the executing Officer shall read and give a copy of the warrant to the person to be searched, or to the person in apparent control of the premises to be searched. If the premises are unoccupied or there is no one in apparent control, the Officer shall leave a copy of the warrant suitably affixed to the premises. The Officer shall also give to the person to be searched or to the person in apparent control of the premises to be searched a receipt for any property taken. [Res. 100418A (04/10/18)]

4.04.710 Rule 41.6 – Return of search warrant.

(a) If a search warrant is not executed within the time specified by the warrant, the Police Officer shall immediately return the warrant to the issuing Judge.

(b) An Officer who has executed a search warrant shall, as soon as reasonably possible and in no event later than the date specified in the warrant, return the warrant to the issuing Judge together with a signed list of things seized setting forth the date and time of search.

(c) The issuing Judge shall file the warrant and list returned to the Court, with the record of the proceedings on the application for the warrant. [Res. 100418A (04/10/18)]

4.04.720 Rule 41.7 – Scope of search.

(a) A search conducted pursuant to a search warrant issued by the Puyallup Tribal Court must be conducted only within the exterior boundaries of the Puyallup Indian Reservation regardless of whether the property is restricted, held in trust, or held in fee simple. It can be conducted only at the place described in the warrant and not elsewhere and must be conducted within the time period stated in the warrant.

(b) The scope of search must be limited to those items authorized by the warrant and is reasonably necessary to discover the persons or things specified in the warrant. Upon discovery of the persons or things specified in the warrant, the Police Officer shall take possession or custody of them and search no further than under authority of the warrant. If in the course of the search the Officer discovers things not specified in the warrant, which the Officer has probable cause to reasonably believe to be subject to seizure under PTC 4.04.650(b)(1) through (3), the Officer shall apply for issuance of a warrant under PTC 4.04.670(d) before taking possession of the thing(s) discovered. [Res. 100418A (04/10/18)]

4.04.730 Rule 41.8 – List of things seized.

Promptly upon completion of the search, the Police Officer shall make a list of the things seized, and the Officer shall deliver a receipt embodying the list to the person from whose possession they are taken, or the person in apparent control of the premises or vehicle from which they are taken. If the vehicle or premises are unoccupied or there is no one present in apparent control, the executing Officer shall leave the receipt suitably affixed to the vehicle or premises. [Res. 100418A (04/10/18)]

4.04.740 Rule 41.9 – Use of force in executing warrants.

The executing Police Officer and other Officers accompanying and assisting them may use the degree of force, short of deadly physical force, against persons, or to effect an entry, or to open containers, as is reasonably necessary for the execution of the search warrant with all practicable safety. [Res. 100418A (04/10/18)]

4.04.750 Rule 41.10 – Handling and disposition of things seized.

(a) If a Police Officer makes an arrest in connection with the seizure, they shall, as soon afterwards as is reasonably possible, make a written list of the things seized and furnish a copy of the list to the defendant.

(b) If no claim to rightful possession has been established the Court shall order that the things be delivered to the officials having responsibility under the applicable laws for selling, destroying or otherwise disposing of contraband, forfeited, or unclaimed goods.

(c) If things seized in connection with an arrest are not needed for evidentiary purposes, and if a person having a rightful claim establishes their identity and right to possession beyond a reasonable doubt to the satisfaction of the seizing Officer, the Officer may summarily return the things seized to their rightful possessor. If the things seized are perishable and it is not possible to return them to their rightful possessor, the seizing Officer may dispose of the items as justice and the necessities of the case require. [Res. 100418A (04/10/18)]

4.04.760 Rule 41.11 – Motion for return or restoration of things seized.

(a) Within 90 days after actual notice of any seizure, or at such later date as the Court in its discretion may allow:

(1) An individual from whose person, property, or premises things have been seized may file a motion with the Court requesting the return of things seized to the person or premises from which they were seized.

(2) Any other person with a claim to rightful possession of the things seized may file a motion with the Court requesting the return of things seized to the petitioner. [Res. 100418A (04/10/18)]

4.04.770 Rule 41.12 – Grounds for motion for restoration of things seized.

(a) A motion for the return or restoration of things seized must be based on the ground that the petitioner has a valid claim to rightful possession of the property, because of one or more of the following reasons:

(1) The things had been stolen or otherwise converted, and the petitioner is the owner or rightful possessor;

(2) The things seized were not in fact subject to seizure;

(3) The petitioner, by license or otherwise, is lawfully entitled to possess things otherwise subject to seizure;

(4) Although the things seized were subject to seizure, the petitioner is or will be entitled to their return or restoration upon the Court’s determination that they are no longer needed for evidentiary purposes; or

(5) The parties in the case have stipulated that the things seized may be returned to the petitioner.

(b) If the motion is granted, the property must be returned to the owner or to the place where it was seized. If the motion is denied, the property must remain available for use in the trial subject to a motion to suppress. A motion to suppress evidence may be made before the Puyallup Tribal Court as provided in Rule 12 (PTC 4.04.270). [Res. 100418A (04/10/18)]

4.04.780 Rule 41.13 – Disputed possession rights.

(a) If, upon consideration of a motion for return or restoration of things seized, it appears to the Court that the things should be returned or restored, but there is a substantial question whether they should be returned to the person from whose possession they were seized or to some other person, or there is a substantial question among several claimants to rightful possession, the Court may:

(1) Return the things to the person from whose possession they were seized; or

(2) Impound the things seized and set a further hearing, assuring that all persons with a possible possessory interest in the things in question receive due notice and an opportunity to be heard.

(b) If there is no substantial question whether the things should be returned to the person from whose possession they were seized, they must be returned to the person upon the release of the defendant from custody. [Res. 100418A (04/10/18)]

4.04.790 Rule 42 – Criminal contempt.

(a) Summary Disposition. A criminal contempt may be punished summarily if the Judge certifies that they saw or heard the conduct constituting the contempt and that it was committed in the actual presence of the Court. The order of contempt must recite the facts as entered on the record by the Judge.

(b) Disposition Upon Notice and Hearing. Except as provided in subsection (a) of this section, a criminal contempt may be entered upon notice and hearing allowing a reasonable time for the preparation of the defense and must state the essential facts constituting a criminal contempt, which may be made in open Court orally by the Judge in the presence of the defendant and the Prosecution. The defendant is entitled to a hearing on the contempt charge when the facts upon which the charge is based involve acts committed by the defendant outside the presence of the Court. Upon a finding of guilty, the Court shall enter an order fixing the punishment. [Res. 100418A (04/10/18)]

4.04.800 Rule 42.1 – Contempt.

(a) Any person(s) found guilty of any of the following acts must be held in contempt of Court and must be punished as directed by the Court:

(1) Disorderly, contemptuous, or insolent behavior toward the Judge while Court is being held, or tending to interrupt the due course of a trial or other judicial proceeding;

(2) A breach of the peace, boisterous conduct, or violent disturbance in the presence of the Judge, or in the immediate vicinity of the Court being held by the Judge, or tending to interrupt the due course of a trial or other judicial proceeding;

(3) Disobedience or resistance to the carrying out of a lawful order or process made or issued by the Judge;

(4) Disobedience to a subpoena duly serviced, or refusing to be sworn in or to answer as a witness;

(5) Rescuing or interfering with any person or property in the custody of a Police Officer acting under an order of the Court or process of the Court; or

(6) Failure to appear for jury duty when properly notified.

(b) A contempt may be punished summarily if the Judge certifies that they saw or heard the conduct constituting the contempt and that it was committed in the actual presence of the Court. The order of contempt must recite the facts as entered on the record by the Judge.

(c) When a contempt is not committed in the actual presence of the Judge, an arrest warrant may be issued by such Judge, after which the person who is charged must then be arrested and brought before the Judge at which time the accused must be given an opportunity to be heard in their defense. The Judge may convict or discharge them of the charge. [Res. 100418A (04/10/18)]

Subchapter 5. General Provisions

4.04.810 Rule 43 – Defendant’s presence.

(a) The defendant shall be present in person at all proceedings in their case unless this rule, Rule 5 (PTC 4.04.160), or Rule 10 (PTC 4.04.230) provides otherwise, or the Judge directs that the defendant may appear by counsel for all or certain proceedings.

(b) Waiving Continued Presence.

(1) Generally. A defendant who was initially present at trial, or who had pleaded guilty or no contest, may waive the right to be present under the following circumstances:

(A) When the defendant is voluntarily absent after the trial has begun, regardless of whether the Court informed the defendant of an obligation to remain during trial;

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

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

(c) Refusal to Appear While in Custody. If a defendant in custody refuses to appear at a mandatory proceeding in their case and their appearance has not been waived or excused by the Court, the Judge shall issue a written order for the defendant to appear. If the defendant refuses to appear as directed by order of the Court, the Judge may hold the defendant in contempt in accordance with PTC 4.04.790 or 4.04.800. [Res. 100418A (04/10/18)]

4.04.820 Rule 43.1 – Defendant’s rights.

In a criminal action the defendant is entitled:

(a) To appear and to be represented by legal counsel at their own expense.

(b) To be informed of the nature of the charge(s) against them and have a written copy of the charges.

(d) To have the Court compel the witnesses against them to appear and testify.

(e) To cross-examine and question the witnesses against them.

(f) To call witnesses on their own behalf and to have the Court issue subpoenas within its jurisdictional limits notifying the witnesses to appear.

(g) To a speedy trial.

(h) To a public trial.

(i) To a trial by Judge or jury.

(j) To be protected against self-incrimination, which includes to testify or not testify.

(k) If found guilty, the right to appeal.

(l) To petition for a writ of habeas corpus. [Res. 100418A (04/10/18)]

4.04.830 Rule 44 – Right to assignment of counsel.

(a) At a defendant’s first appearance before the Court, the Court must advise the defendant of their right to have counsel provided at their own expense and effort, or they may be eligible for the services of the public defender, based on eligibility, so long as that service is offered by the Tribe.

(1) Counsel shall not be approved to represent a defendant unless he is admitted to practice before and is in good standing with the Puyallup Tribal Bar.

(2) At their first appearance, defendant’s counsel shall make an oral notice of appearance on the record and enter a written notice of appearance, and then serve a copy on the Prosecutor as soon as possible. Counsel who have entered an appearance or who have been appointed by the Court shall continue such representation until relieved by the Court.

(3) The Puyallup Tribe of Indians provides public defense counsel as a courtesy service to eligible defendants. This service is not required by Puyallup Tribal law or by the Indian Civil Rights Act and is subject to the discretion of the Puyallup Tribe.

(4) A defendant who voluntarily dismisses an available public defender offered by the Tribe is not eligible for further public defender services. In this situation, the defendant may obtain counsel at their own expense and effort. The defendant may only re-engage the services of the public defender if they send a request in writing to the Court to have the public defender represent them and they cannot afford an attorney of their own choosing. [Res. 100418A (04/10/18)]

4.04.840 Rule 45 – Time.

Computation. In computing any period of time, the date of the act or event from which the designated period of time begins to run shall not be included. The last day of the time period must be included, unless it is a Saturday, a Sunday, or a legal holiday. When a period of time prescribed or allowed is less than seven days, intermediate Saturdays, Sundays, and legal holidays must be excluded in the computation. As used in these rules, “legal holiday” includes holidays as listed in the Puyallup Tribe of Indian’s Holiday Schedule for the current fiscal year. [Res. 100418A (04/10/18)]

4.04.850 Rule 46 – Release from custody.

(a) Release Prior to Trial. A defendant may be released from custody by any one or more of the following ways: upon posting bail, upon their own recognizance, or upon conditions set by the Court prior to trial, including being entered into the Tribal Electronic Monitoring Program. Bail must be fixed in an amount by the Court or by the bail schedule regularly used by the Court. The burden of establishing that the defendant will not flee or pose a danger to any other person or to the community rests with the defendant.

(b) Release During Trial. A person released before trial shall continue on release during trial on the same terms and conditions as were previously imposed, unless the Court determines that other terms and conditions or termination or release are necessary to assure that their conduct will not obstruct the orderly and expeditious progress of the trial.

(c) Pending Sentence and Notice of Appeal. A defendant may continue on release if a presentence investigation is ordered by the Court or may be continued on release pending appeal, if a notice of appeal is filed as provided for in this Code. The burden of establishing that the defendant will not flee or pose a danger to any other person or to the community rests with the defendant. If a fine only has been imposed and the defendant has filed a notice of appeal, a bond sufficient to cover the payment of the fine, costs of the Court, and cost of appeal must be approved by the Judge before release is granted. [Res. 100418A (04/10/18)]

4.04.860 Rule 46.1 – Bail.

(a) Entitlement. Every defendant not appearing for a probation violation will be entitled to bail. A defendant may be released upon bail, upon their own recognizance, or upon conditions set by the Court prior to trial. Bail is allowable pending appearances before the Court, or, if after conviction, during any stay of execution or pending appeal. The Judge may set at the close of the initial appearance, unless justifiable circumstances exist that require bail to be set at the close of the arraignment.

(1) The Court may hold probationers appearing for a probation violation without bail for a specified time pending the violation of probation hearing held in accordance with Rule 46.2 (PTC 4.04.870). Probationers appearing for a probation violation may be entitled to bail if the probationer can give the Court probable cause to believe that:

(A) There is no substantial risk that the defendant will fail to appear as required and will not otherwise pose a substantial risk to the integrity of the judicial process;

(B) There is no substantial risk that the defendant will pose a danger to another or to the community; and

(b) Discretion. The decision as to whether or not to grant release on bail or otherwise is within the discretion of the Court. However, if there is little likelihood that the defendant will flee or not appear in Court at a specified time, they should be released prior to trial. This prevents punishment prior to proving guilt. Bail or release on other conditions will be granted pending review of a conviction.

(c) Amount. Bail must be fixed in an amount by the Court that in the judgment of the Judge is necessary and sufficient to insure the defendant’s presence at future Court proceedings at which defendant’s presence is required or by the bail schedule regularly used by Tribe.

(d) In setting bail, the Court shall consider the following factors:

(1) If the defendant has a substantial history of voluntarily failing to appear before the Court;

(2) The nature and circumstances of the charge;

(3) The defendant’s employment status;

(4) The defendant’s present residence;

(5) The defendant’s connection to the community;

(6) The danger to any person or the community that would be posed by the defendant’s release;

(7) The defendant’s financial condition;

(8) Whether the defendant is the primary caregiver of an elderly household member, a minor child, or a vulnerable adult; and

(9) Whether the defendant is the sole income earner for their household.

(e) Justification of Sureties. No corporate surety (commercial bail bondsman) will be permitted to post bail on behalf of the defendant unless the surety has been approved by the Tribal Council for use on the Reservation under any terms and conditions that the Tribal Council will require. No bonds will be approved by the Court unless the surety appears to be qualified. No surety will be required to justify if cash is posted in the amount of the bond.

(f) Forfeiture.

(1) Notice of Order of Forfeiture. The Judge shall issue a notice of an order of forfeiture of the bail if the defendant fails to appear, or for any other breach of the condition of the bond. The notice of an order of forfeiture must be delivered to the person posting bail on the defendant’s behalf.

(A) If the defendant personally appears in Court (whether compulsory or voluntary) within 30 days of the notice of the order of forfeiture, to obtain a release of the order and reinstatement of the bail, upon proper showing of their inability to appear as required, the Court may release the order of forfeiture, forfeit the bail and require new bail, increase the bail amount, or return the defendant to custody. The Court may also maintain any previously posted bail.

(2) Entry of Order of Forfeiture. If the defendant fails to personally appear in Court within 30 days of the notice of an order of forfeiture, or fails to make a proper showing of their inability to appear as required, the bail will automatically forfeit without further order of the Court, and any posted bail will automatically be forfeited to the Puyallup Tribe of Indians.

(3) Enforcement. If the defendant fails to appear as required by any condition of release, the surety, whether corporate or private, may be ordered to deliver the body of the defendant before the Court within 30 days of the judgment entered against them in the amount of the bond.

(4) Vacating Order of Forfeiture. After the entry of the order of forfeiture, the Court may vacate the judgment in whole or in part under such conditions applying to the setting aside of the forfeiture upon a finding of good cause. For “good cause” to be found, the defendant shall demonstrate that they suffered a disability or illness that prevented their appearance before the Court within 30 days of the notice of order of forfeiture.

(5) Exoneration. When the condition of the bond has been satisfied or the forfeiture has been set aside or vacated, the Court shall exonerate the obligors and release any bail. A surety may be exonerated by a deposit of cash in the amount of the bond or by timely surrender of the defendant into custody. [Res. 100418A (04/10/18)]

4.04.870 Rule 46.2 – Probation.

(a) Purpose. The Puyallup Tribe’s Probation Department’s primary purpose is to encourage individuals to take responsibility for their life choices while supporting them to become productive citizens of the Puyallup Tribe and community. The Probation Department acts as the eyes and ears of the judicial branch of the Puyallup Tribe, observing and reporting on the offender’s progress within their individualized plan.

(b) Probation. After conviction of an offense, the defendant may be placed on probation. In cases where the defendant is 18 years of age or older, probation may be either unsupervised or supervised; the Court may order unsupervised probation only if the defendant is convicted of no more than a Class B offense. In cases where the defendant is less than 18 years of age, probation may be supervised or unsupervised; the Court may order unsupervised probation only if the defendant has no prior criminal history and is convicted of no more than a Class C offense.

(c) Duration. Each probation must be for a period specified by the Court; however, the probation period must not exceed two years, unless good cause is shown by the Prosecution to exceed the two-year limit or by agreement of the Prosecution and the defendant. Upon termination of the probation period and satisfaction of any conditions imposed, the defendant must be relieved of any obligations imposed by the Court and will have satisfied their sentence.

(d) Unsupervised Probation. Unsupervised probation must be conditioned upon the defendant satisfying any legal and financial obligation ordered by the Court, not committing any further offense prohibited by any federal, state, local, or Tribal law. Defendants who fail to comply with these conditions may have their probation revoked by the Court or may be ordered to supervised probation by the Court.

(e) Supervised Probation. Supervised probations must be carried out under the supervision of a Probation Officer and may contain as many reasonable conditions which reasonably relate to the offense as set by the Court; these conditions are to be carried out under the supervision of the Probation Officer. Conditions may include:

(1) Meet family responsibilities;

(2) Undergo medical, psychiatric, or other rehabilitative treatment, and enter and remain in a specified institution if recommended;

(3) Undergo any outpatient rehabilitative treatment as prescribed in the order;

(4) Actively seek and obtain gainful employment, education, or technical training;

(5) Refrain from the use of all intoxicants, illegal drugs, or drugs that are illegal without a prescription, unless so prescribed by a physician, and submit to any urine analysis or portable breathalyzer test ordered;

(6) No possession of firearms or other dangerous weapons;

(7) Satisfy any legal financial obligations ordered by the Court;

(8) Remain in the jurisdiction of the Court and notify the Court and Probation Officer of any change of address or employment;

(9) Report to the Probation Officer as ordered;

(10) Allow the Probation Officer to visit their home, school, or place of employment;

(11) With Court approval, participate in and comply with a Tribally administered Tribal Electronic Monitoring Program; and

(12) Post a bond conditioned on the performance of any obligation or condition.

(f) Modification. During the period of probation, the Court may, on application of the Prosecution, the defendant, or on its own motion, modify the requirements imposed on defendant, add further requirements, or discharge the defendant for good cause.

(g) Violation of Probation. A violation of the terms of probation will occur when a defendant fails to satisfy any condition of their probation. Unless they are already before the Court, the Court shall issue a summons or arrest warrant upon a filing of a petition by the Prosecutor to revoke defendant’s probation alleging that the defendant has violated the terms of probation and should be subject to sanctions or revocation or both.

(h) Revocation of Probation. The Court may revoke probation when the Tribe, through the Prosecutor, demonstrates by a preponderance of the evidence that the defendant committed at least one of the following acts:

(1) Willfully and substantially violated the terms of probation;

(2) Willfully and habitually violated the terms of probation; or

(3) Committed a “serious violation” within the first 90 days of probation.

(A) Serious Violations. A “serious violation” occurs when the defendant is:

(i) Convicted in any jurisdiction of any degree of a crime of violence, including any violence that is sexual in nature, domestic violence, violence involving a minor under the age of 18 years old, or violence involving a firearm or other dangerous weapon;

(ii) Convicted in any jurisdiction of a Class A or B (or jurisdictional equivalent of a felony) controlled substance offense; or

(iii) Convicted in any jurisdiction of violating any order of protection or no contact order or both.

Such convictions must occur after the defendant is sentenced to probation; provided, that the pending criminal charges are not disclosed to the Court at the time of sentencing. If the defendant discloses any pending charges at the time of sentencing, the Court may exempt convictions under those charges from this section, subsections (h)(1) through (3) of this section.

(i) Revocation of Probation – Preliminary Hearing and Revocation Hearing. The Court shall not revoke probation except after a hearing at which the defendant is present and apprised on the grounds on which the revocation action is proposed. If the defendant is in custody solely for violating a condition of probation then the Court shall not revoke probation except after a preliminary hearing is conducted within a reasonable time under all the circumstances to determine if there is probable cause to hold the defendant and after conducting a revocation hearing, at which the allegations must be proved by the Prosecution. The defendant may be admitted to bail pending such hearings.

(1) A defendant will be entitled to a preliminary hearing before the Court after receiving notice of the hearing to revoke probation that includes: the purpose for the hearing, the grounds for the violation, the defendant’s right to appear, and the defendant’s right to have counsel provided at their own expense and effort, or they may be eligible for the services of the public defender, based on eligibility, so long as that service is offered by the Tribe. Notice to the defendant may be accomplished by personal service or service by first class mail to the mailing address of the facility where the defendant is being held. The defendant may waive the preliminary hearing in writing. At the hearing, the Court shall advise the defendant of the following rights:

(A) The right to written notice of the alleged violation and the grounds for the violation;

(B) The right to disclosure of the evidence against the defendant;

(C) The right to appear, present evidence, and question any witness, unless the Court determines that the interest of justice does not require the witness to appear.

(2) Revocation hearings will be conducted by the Court without a jury and must be held within a reasonable time. At the hearing, the Court shall advise the defendant of the following rights:

(A) The right to written notice of the alleged violation and the grounds for the violation;

(B) The right to disclosure of the evidence against the defendant;

(C) The right to appear, present evidence, and question any witness, unless the Court determines that the interest of justice does not require the witness to appear;

(D) The right to retain counsel at their own expense and effort, or, if eligible, to be represented by the public defender provided by the Tribe; and

(E) An opportunity to make a statement and present any information and relevant evidence in mitigation.

(3) After a revocation hearing under these rules and after considering the evidence, the Court may:

(A) Reinstate the defendant’s probation, with or without extending the term or modifying or enlarging the conditions;

(B) Terminate the sentence of probation and impose the original sentence as set forth in the order on judgment and sentence; or

The Court may conduct a separate disposition hearing if warranted.

(j) Probation Period Tolled. Upon a filing of a petition by the Prosecutor to revoke defendant’s probation, the Court may issue a warrant for the defendant’s arrest if a defendant fails to appear at any hearing for which their personal appearance was ordered and properly noticed. The defendant shall receive no credit for time on probation while the warrant is active and the probation period will be tolled until the warrant is executed or quashed. The Court’s power to revoke a sentence of probation and to impose another sentence extends beyond the expiration of the term of probation for any period reasonably necessary to determine whether a violation occurred and revocation is warranted if, prior to the expiration of probation, a warrant or summons has been issued on the basis of an allegation of such a violation.

(k) Dispositions to Be in Writing. The Court shall determine the appropriate disposition after the revocation hearing and issue any such orders in writing. [Res. 100418A (04/10/18)]

4.04.880 Rule 46.3 – Tribal Electronic Monitoring Program.

(a) Use.

(1) The Tribal Electronic Monitoring Program (“TEMP”) is hereby authorized for use for any offenses under the Puyallup Tribal Criminal Traffic Code (Chapter 5.08 PTC) or the Puyallup Tribal Criminal Code (Chapter 5.12 PTC), or both.

(2) The TEMP may be used at the Court’s discretion at any stage of the proceedings under this chapter, including post-judgment and any probationary periods.

(3) The Court shall require any person authorized to enter the TEMP to comply with all rules and requirements of the TEMP Policies and Procedures. [Res. 100418A (04/10/18)]

4.04.890 Rule 46.4 – Temporary release from incarceration.

Upon a showing of compelling necessity by defense counsel’s motion, along with supporting evidence, the Court may permit the temporary release of a pretrial defendant to the custody of a Police Officer or an authorized third person, subject to appropriate conditions of temporary release. The Prosecutor will have an opportunity to object to a motion for a temporary release and to request conditions of temporary release. Temporary release examples include: attending the funeral of an immediate family member or household member, attending to a critically ill minor child or parent, or other immediate and compelling personal matters. [Res. 100418A (04/10/18)]

4.04.900 Rule 47 – Motions.

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

(b) Form and Content of a Motion. A motion must be in writing, unless the Court permits the party to make the motion by other means. A motion must state the grounds on which it is based and the relief or order sought. A motion may be supported by affidavit.

(c) Timing of a Motion. A party must serve a written motion, other than one that the Court may hear ex parte, and any hearing notice no later than 10 days before the hearing date, unless a rule or Court order sets a different period. For good cause, the Court may set a different period upon ex parte application.

(d) Affidavit Supporting a Motion. The moving party must serve any supporting affidavit with the motion. A responding party must serve any opposing affidavit no later than one day before the hearing, unless the Court permits service at a later time. [Res. 100418A (04/10/18)]

4.04.910 Rule 48 – Dismissal.

(a) By the Court. Whenever, in the opinion of the presiding Judge, the plaintiff has failed to state a cause of action, a nonjustifiable action is presented or other such basic defect exists which renders any judicial action improper, the Judge may, on their own motion, dismiss that action with or without prejudice.

(b) By the Prosecution. The Prosecution in any criminal proceeding, with the concurrence of the arresting Police Officer, may recommend to the Court, in chambers, that a case be dismissed; provided, that good cause exists for that recommendation. [Res. 100418A (04/10/18)]

4.04.920 Rule 49 – Service and filing of papers.

(a) Service – When Required. Any written document filed with the Court by a party must be served upon the other party.

(b) Service – How Made. Service may be accomplished by delivering a copy of the document to any person who is 18 years of age or over who is of suitable discretion who resides at the party’s usual place of abode. Personal service of the document must be attempted first. Service may then be attempted by mailing a copy to the party’s last known address by certified mail, restricted delivery, and return receipt requested.

(1) If all available forms of service have been attempted and have failed, then, as a last resort, service by first class mail to the defendant’s last address of record will be permitted.

(A) Exception. A complaint must be served by personal or certified mail, return receipt requested.

(2) If the other party who is being served is represented by an attorney, all documents must be served at the attorney’s office or to the attorney’s mailing address. Copies shall not be sent to the opposing party if they are represented by an attorney.

(c) Service – Made by Whom. Service must be made by a Police Officer, bailiff, or any person who is 18 years of age or over and who is not a party to the action, except where otherwise prescribed in these rules.

(d) Proof of Service. Proof of service must be made by the person serving a document by filing promptly after completion of service a sworn signed statement containing the name of the person served, the document served, and the date, time, and place served.

(e) Territorial Limits. Service may be made anywhere within the jurisdiction of the Puyallup Tribe.

(f) Notice of Orders. Immediately upon the entry of an order, the Court Clerk shall mail to each party a notice of the order, and the Court Clerk shall make a note in the docket of the mailing.

(g) Filing. Filing must be accomplished by delivering the original and one copy of a document to the Clerk who shall stamp it with the date. All papers required to be served must be filed with the Court. [Res. 100418A (04/10/18)]

4.04.930 Rule 50 – Prompt disposition of cases.

The Court may provide for the placing of criminal proceedings on appropriate calendars. Preference must be given to criminal proceedings of persons confined to jail as far as practicable. [Res. 100418A (04/10/18)]

4.04.940 Rule 51 – Exceptions unnecessary.

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

(b) Preserving a Claim of Error. A party may preserve a claim of error by informing the Court, when the Court ruling or order is made or sought, of the action the party wishes the Court to take, or the party’s objection to the Court’s action and the grounds for that objection. If a party does not have an opportunity to object to a ruling or order, the absence of an objection does not later prejudice that party. [Res. 100418A (04/10/18)]

4.04.950 Rule 52 – Harmless and plain error.

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

(b) Plain Error. A plain error that affects substantial rights may be considered even though it was not brought to the Court’s attention. [Res. 100418A (04/10/18)]

4.04.960 Rule 53 – Regulation of conduct in courtroom.

All persons in the courtroom must abide by all Court Rules adopted by the Chief Judge in accordance with Chapter 4.16 PTC regarding the conduct of individuals in the courtroom. The taking of photographs in the courtroom during judicial proceedings or electronic broadcasting of judicial proceedings from the courtroom shall not be permitted by the Court, unless the defendant consents in writing. [Res. 100418A (04/10/18)]

4.04.970 Rule 54 – Application and exception.

(a) Courts. These rules must apply to all criminal proceedings in the Court.

(b) Exception. The Children’s Court of the Puyallup Tribe, where a person under 18 years of age has been accused of a crime, may provide for proceedings in the nature of a criminal action with rules other than these, if the Tribal Council has approved such rules. [Res. 100418A (04/10/18)]

4.04.980 Rule 55 – Court records and files.

The Court Clerk, under the discretion and supervision of the Chief Judge, shall keep all Court records and files in their custody. The Clerk shall enter in the records every Court order or judgment and the date of entry. [Res. 100418A (04/10/18)]

4.04.990 Rule 56 – Courts and clerks.

The Court must be open for filing any paper, issuing, and returning process, making a motion, or entering an order during business hours on all days except Saturday, Sunday, and legal holidays.

The Court Clerk’s office with the Clerk or a deputy in attendance must be open during business hours on all days except Saturday, Sunday, and legal holidays. As used in these rules, “legal holiday” includes all holidays listed in the Puyallup Tribe of Indians’ Holiday Schedule for the current fiscal year. [Res. 100418A (04/10/18)]

4.04.1000 Rule 57 – Rules of Court.

(a) Rules of the Puyallup Tribal Court. Rules made by the Court for the conduct of criminal proceedings must be consistent with this Code and consistent with the adoption procedures of Chapter 4.16 PTC. After approval, copies of all rules made by the Court must be furnished to the Tribal Council upon their promulgation and copies of the rules must be made available to the public.

(b) Procedure Not Otherwise Specified. If no procedure is specifically prescribed by rule, the Court may proceed in any lawful manner that is not inconsistent with their rules or any applicable Tribal ordinance or any rule of the Tribe itself. [Res. 100418A (04/10/18)]

4.04.1010 Rule 57.1 – Calenders and dockets.

(a) The Court Clerk shall be responsible for controlling the calendar and dockets of the Court, under such systems as the Chief Judge of the Court shall establish.

(b) The Court Clerk shall post all criminal dockets no later than 24 hours before the applicable hearing. [Res. 100418A (04/10/18)]

4.04.1020 Rule 57.2 – Court reporter and recordings.

A court reporter shall record all trials. Any party requesting a copy of the trial recording must bear the cost for the recording. [Res. 100418A (04/10/18)]

4.04.1030 Rule 58 – Not applicable.

[Res. 100418A (04/10/18)]

4.04.1040 Rule 59 – Not applicable.

[Res. 100418A (04/10/18)]

4.04.1050 Rule 60 – Victim’s rights.

A crime victim has the following rights:

(a) The right to be reasonably protected from the accused.

(b) If requested by the victim, the right to reasonable, accurate, and timely notice of any public Court proceeding, or any parole proceeding involving the crime or of any release or escape of the accused.

(c) The right not to be excluded from any public Court proceeding, unless the Court, after receiving clear and convincing evidence, determines that testimony by the victim would be materially altered if the victim heard other testimony at that proceeding.

(d) The right to be reasonably heard at any public proceeding in the Court involving release, plea, sentencing, or any parole proceeding.

(e) The reasonable right to confer with the Prosecution in the case.

(f) The right to full and timely restitution as provided by law.

(g) The right to proceedings free from unreasonable delay.

(h) The right to be treated with fairness and with respect for their dignity and privacy.

(i) The right to present a written victim impact statement to the Court in accordance with PTC 4.04.520(f)(1), if the victim requests to do so. [Res. 100418A (04/10/18)]

4.04.1060 Rule 60.1 – Special privileges.

(a) Spousal Privileges.

(1) Spousal privilege is the manner of communication that husbands and wives share through words, looks, or behavior. Information shared between one or both of the spouses and another person is not privileged.

(2) When spousal privilege exists, one spouse cannot be compelled by Court order to testify or share information that was acquired during the course of the marriage. However, during a criminal proceeding in which one spouse is alleged to be a victim of a crime perpetrated by the other spouse, spousal privilege shall not apply.

(b) Advocate-Victim Privilege Applies in Domestic Violence Cases.

(1) An advocate shall not, without consent from a victim of domestic violence, disclose confidential communication between the victim and the advocate.

(2) An advocate shall not, without consent from a victim of domestic violence, disclose confidential written records and reports or both concerning the victim.

(3) An advocate shall immediately report the abuse, neglect, or abandonment to the Tribal Social Services Department or Tribal Law Enforcement and Children’s Protective Services as required under PTC 7.04.250, if they have reasonable cause to suspect that a child has been abused, neglected, or abandoned.

(4) An advocate shall immediately report the abuse, neglect, or abandonment to Tribal Law Enforcement and Tribal Adult Protective Services, if they have reasonable cause to suspect that an elder has been abused, neglected, or abandoned.

(5) As used in this subsection, “advocate” means an employee of or volunteer for a program for victims of domestic violence or other victims of crime who has a primary function of rendering advice, counseling, or assisting victims of domestic violence; supervising the employees or volunteers of the program; or administering the program. [Res. 100418A (04/10/18)]

4.04.1070 Rule 61 – Title.

These rules will be known and cited as the Rules of Criminal Procedure of the Puyallup Tribe of Indians. [Res. 100418A (04/10/18)]

4.04.1080 Rule 61.1 – Effective date.

These rules will take effect upon approval by the Puyallup Tribal Council. These rules must govern all criminal proceedings commenced after that date and, so far as practicable, all proceedings then pending. [Res. 100418A (04/10/18)]

Subchapter 6. Domestic Violence Procedures

4.04.1090 Full faith and credit for criminal actions.

(a) A permanent, temporary, or ex parte protection order issued by any other court, federal, state, or tribal, must be accorded full faith and credit, and enforced as if it were an order of the Puyallup Tribal Court if:

(1) It was issued by a court that had jurisdiction over the parties and subject matter;

(2) Reasonable notice and opportunity to be heard are given to the person against whom the order is sought sufficient to protect that person’s right to due process; and

(3) The provisions of the enforcement of foreign judgments, PTC 4.08.310, are followed.

(b) Faxed copies of a protection order must be recognized as valid when sent by any other court. [Res. 100418A (04/10/18)]

4.04.1100 Tribal registry of protective orders.

(a) Police Officers, Court Clerks, and Prosecutors shall enter valid certified foreign orders for protection in the Tribal registry when they are presented by any Police Officer or the Prosecutor and deemed to be valid by the Tribal Court.

(b) The Puyallup Tribal Court shall keep a registry of Court approved protective orders or TROs issued by the Puyallup Tribe or by foreign courts which lists the order of protection or the temporary restraining order, the name of the victim, the name of the alleged perpetrator, the geographical areas within which the victim is protected (for example, work, home, etc.), and the date of expiration. [Res. 100418A (04/10/18)]

4.04.1110 Mutual protective orders.

In criminal domestic violence cases, the Tribal Court shall not grant protective orders to both parties unless:

(a) Both spouses file a claim;

(b) The Court determines through detailed findings of fact that both spouses acted primarily as aggressors; and

4.04.1120 Order transmittal.

(a) The Clerk of the Court shall forward a copy of an order for protection by, on, or before the next business day to the appropriate law enforcement agency specified in the order.

(b) Upon receipt of the order, the law enforcement agency shall enter the order into the Tribe’s computer-based criminal intelligence information system.

(c) The information entered in the computer-based system must include: notice to law enforcement; whether the order was served by the Court to the defendant by personal service, by mail, or by publication and, whenever available, expiration date. [Res. 100418A (04/10/18)]

4.04.1130 Surrender of weapons during arrest.

Incident to an arrest, or in the course of securing a crime scene, involving domestic violence, a Law Enforcement Officer may:

(a) Seize all weapons that are alleged to have been involved in the commission of an offense; or used to threaten another; or

(b) Seize a weapon that is in the plain view or which is located during a search authorized by a person having authority to consent to the search.

“Weapons,” as used in this title, are defined as firearms, guns, knives, and anything used or designed to be used in destroying, defeating, or injuring a person. [Res. 100418A (04/10/18)]

4.04.1140 Surrender of weapons after arrest.

During the judicial proceedings regarding a domestic violence offense, the Prosecutor may request that the Court require that all weapons in the defendant’s household or possession be surrendered. In these situations, the surrender of weapons is without regard to ownership of the weapons; weapons owned by a third party may be subject to confiscation. [Res. 100418A (04/10/18)]

4.04.1150 Surrender of weapons while subject to a protection order.

A person who is subject to an order of protection shall not possess any firearms during the time the order is in place. Police Officers who have an order of protection against them will only be allowed to carry firearms and ammunition while on duty. [Res. 100418A (04/10/18)]

4.04.1160 Mandatory arrests for domestic violence incidents.

(a) A Police Officer, with or without a warrant, shall arrest and take into custody a person subject to the criminal jurisdiction of the Puyallup Tribe of Indians when the Officer has probable cause to believe that the person has committed an assault or battery; or violated a Court order restraining the person from acts or threats of violence or excluding the person from a residence, workplace, school or daycare, or imposing any other conditions or restrictions upon the person; or other act of domestic violence as defined in PTC 7.16.020.

(b) Within 24 hours of the occurrence of domestic violence, or other acts as defined in subsection (a) of this section, the Officer shall make all diligent efforts to arrest the person whom the Officer reasonably believes to be the primary physical aggressor. [Res. 100418A (04/10/18)]

4.04.1170 Holding a defendant.

Any person arrested must be held without bail, in the custody of the Tribal Police Department, for a period of 72 hours as a mandatory cooling-off period; provided, however, that the Court shall conduct a hearing at the earliest possible date following the arrest and the detention must continue under the terms of this section only if the Court determines that there is probable cause to believe that the person arrested has committed an assault or battery, or other act of domestic violence as defined in PTC 7.16.020; and the Court reasonably determines the person is incapable of refraining from further acts of domestic violence as defined in PTC 7.16.020. [Res. 100418A (04/10/18)]

4.04.1180 Surrender of weapon after guilty plea.

In all cases that result in a plea of guilty or a verdict of guilty involving a domestic violence offense, the Prosecutor shall request the Court to order the defendant to immediately surrender all weapons they own or which are easily accessible and located at their primary residence. If the Court does so order the surrender of such weapons, it must be for a minimum length of time equal to the number of months the defendant is to be on probation. The defendant shall turn the weapon over to the Puyallup Tribal Law Enforcement Department; Police Officers shall then hold the weapon for safekeeping. [Res. 100418A (04/10/18)]

4.04.1190 Impact statement of the victim.

After conviction or plea of guilty, the Court, upon request from any party, may allow the victim to provide an impact statement about the physical, mental, emotional, or property damage which the defendant is alleged to have caused. An impact statement may be provided in a sworn statement, verbally, or through an advocate. [Res. 100418A (04/10/18)]

Subchapter 7. Gang-Related Procedures

4.04.1200 Gang-related criminal offenses.

(a) Offenses will be denominated as gang-related when the defendant or offender or both have:

(1) Been classified or identified by Puyallup Tribal Law Enforcement as involved in gang activities; and

(2) The offense occurs within the gang or advances a gang purpose.

(b) Law Enforcement will use a field information report or gang information report or both to identify or classify an individual involved in a gang-related offense as gang-related. [Res. 100418A (04/10/18)]

4.04.1210 Seizure of weapons upon arrest.

Incident to an arrest, or in the course of securing a crime scene, involving a gang-related offense, a Law Enforcement Officer may:

(a) Seize all weapons that are alleged to have been involved in the commission of an offense; or used to threaten another; or

(b) Seize a weapon that is in the plain view or which is located during a search authorized by a person having authority to consent to the search.

“Weapons,” as used in this title, are defined as firearms, guns, knives, and anything used or designed to be used in destroying, defeating, or injuring a person. [Res. 100418A (04/10/18)]

4.04.1220 Surrender of weapons after conviction.

In any criminal case that results in a plea or verdict of guilty for any gang-related offense, the Court, upon the request of the Prosecutor, may order the defendant, as a condition of probation, to immediately surrender to the Puyallup Tribal Law Enforcement Department for safekeeping all weapons they own, possess or have under their care or control, for the duration of the term of probation. [Res. 100418A (04/10/18)]

4.04.1230 Mandatory arrests for gang-related incidents.

A Police Officer, with or without a warrant, may arrest and take into custody a person subject to the criminal jurisdiction of the Puyallup Tribe of Indians when the Officer has probable cause to believe that the person has committed a violent gang-related offense. [Res. 100418A (04/10/18)]

4.04.1240 Enhancement of penalties for multiple gang-related offenses.

The Tribe may request the Judge in a trial by Court, or the jury in a trial by jury, to enhance the penalty for the current conviction, by one degree, for any individual who has been convicted of two or more gang-related offenses, in any jurisdiction, within five years of the date of the current conviction. [Res. 100418A (04/10/18)]