Navajo Rules of Criminal Procedure Cite as Nav. R. Cr. P.

These rules were were approved by the Judicial Conference of the Navajo Nation in Resolution No. SCO-5-90 on October 4, 1990; and by the Judiciary Committee of the Navajo Nation Council in Resolution JCO-15-90 on October 11, 1990.  The rules became effective on November 1, 1990.

• Index

I.       SCOPE OF RULES AND DEFINITIONS

RULE 1.     Scope.

These Rules govern the procedure in all criminal proceedings in the District Courts of the Navajo Nation and shall be known as the Navajo Rules of Criminal Procedure and may be cited as Nav. R. Cr. P.  In all situations not provided for by rule or statute, the court may regulate the course of proceedings in any lawful manner not inconsistent with these Rules or any applicable statute.

Rule 1.1      Definitions and Terms.

1.1(a)      Counsel.  The term “counsel” as used in these Rules shall include all members of the Navajo Nation Bar Association and any other authorized representative of a party.

1.1(b)     Conformed Copy. A conformed copy is a copy of a pleading, which shows the court stamp placed upon the original at the time of filing.

1.1(c)      Pronoun Usage. Whenever a masculine or feminine pronoun is used it shall be deemed to include both males and females.

1.1(d)     Warrants of Arrest. Warrants to arrest are any writs signed by a judge directing the attachment of a body and include bench warrants and warrants to apprehend.

RULE 2.     Construction and Purpose.

2(a)         Construction.  These Rules shall be construed consistently with the laws of the Navajo Nation.

2(b)        Purpose.  These Rules are intended to provide for the just determination of criminal proceedings.  They shall be construed to secure simplicity in procedure, fairness in administration, and the elimination of unjustifiable expense and delay.

RULE 3.     Computation of Time.

3(a)         Time Periods.  In computing any period of time under these Rules, by order of court or by any applicable law, the day of the act or event from which the designated period of time begins to run is not to be included.  The last day of the period so computed shall be included unless it is a Saturday, a Sunday, or a court holiday in which event the period runs until the end of the next business day which is not a Saturday, Sunday, or a court holiday.

3(b)        Time Periods for Service by Mail.  Whenever a party has a right or is required to take some action within a prescribed period of time after service of a notice or other paper and such service is allowed and made by mail, five (5) days shall be added to the prescribed period.

RULE 4.     Size of Paper; Copies; Conformed Copies

4(a)         Paper Size.  All pleadings and other papers, except traffic citations, filed in any proceeding governed by these Rules shall be on paper measuring 8-1/2 x 11 inches.

4(b)        Signed Original.  A party filing any document with the court shall submit a manually signed original.

4(c)        Conformed Copies.  A party desiring copies for any purpose shall submit such a copy or copies to the court.  A party desiring to be mailed a conformed copy shall provide the court with a self-addressed stamped envelope at the time the request for a conformed copy is made.

II.      GENERAL RULES OF PLEADING.

RULE 5.     Pleadings.

5(a)         Form.  Every pleading shall have a caption identifying the court, the title of the action, the type of pleading and the case number(s) or space therefore, and space for the clerk’s stamp and other certifications.

5(b)        Motions.  All applications and petitions to the court shall be by written motion, unless made in open court during a hearing or trial.  Each motion shall state the grounds and shall set forth the relief or order sought:

(1)              Motions containing factual allegations may be supported by affidavit.

(2)              Procedural motions based upon these Rules may cite the enabling authority in the body of the motion, and further supporting papers shall not be required.

(3)              Motions raising issues of law shall be supported by memoranda of law or briefs.

5(c)        Ex Parte Communications.  Ex parte communications and private hearings with the court are prohibited and ex parte written communications shall be returned to the sender by the clerk of the court as though not filed.

RULE 6.     Service and Filing.

6(a)         Manner.  Unless otherwise specified in these Rules, the manner and sufficiency of service of motions and all other pleadings and documents shall be governed by the Rules of Civil Procedure.

6(b)        Notice of Orders.  Immediately after the signing by the judge of any order in a criminal case, other than in open court, the clerk shall serve a copy upon all parties.

RULE 7.     No Joinder.

7(a)         No Joinder of Offenses.  No defendant shall be charged with more than one count on the same complaint.  A defendant shall be charged one count per complaint even if the crimes charged are of similar character, or are based on the same act or on a series of acts, which are part of a single scheme.

7(b)        No Joinder of Defendants.  Only one defendant shall be charged in one complaint even if more than one defendant is alleged to have taken part in the same act or series of acts constituting the crime charged.

III.    PRELIMINARY PROCEEDINGS                   

RULE 8.     Criminal Complaint.

8(a)         Commencement of Criminal Proceedings.  A criminal proceeding is commenced by the prosecutor filing with the court a complaint in the name of the Navajo Nation.

8(b)        Contents of Criminal Complaint.  The criminal complaint shall contain the following:

(1)              The identity of the defendant, which shall include as much of the following as can be reasonably ascertained:

(A)            The defendant’s name or, if his name is unknown, any name or description by which he can be identified with reasonable certainty;

(B)            The defendant’s census number, if any;

(C)            The defendant’s address, if known.

(2)              The essential facts, including jurisdictional facts, constituting the offense.

(3)              The statutory name of the offense.

(4)              The section(s) of the Navajo Tribal Code the defendant is alleged to have violated.

(5)              The signature of the prosecutor and complainant.

8(c)        Unnecessary Allegations.  Any unnecessary allegations contained in a complaint shall be deemed surplusage and disregarded.

8(d)        Incomplete or Defective Complaint.  A complaint that does not meet the requirements set forth in this Rule shall be subject to dismissal on the court’s own motion or on the motion of the defendant.  Such dismissal based upon an error, omission, or defect in the complaint may be without prejudice, or the prosecution may be given leave to amend the complaint.

RULE 9      Criminal Summons: Form

9(a)         Content of Summons.  Upon the filing of a criminal complaint the clerk may issue a criminal summons to the defendant(s) to appear. The summons shall be signed by the clerk of the issuing court and shall be attached to the complaint.  It shall contain the following:

(1)              The name of the defendant, or sufficient description to identify the defendant with reasonable certainty;

(2)              The description of the offense(s) charged;

(3)              Notice that at arraignment, the defendant will be expected to enter a plea to the offense(s) charged;

(4)              A recommendation that defendant consult with legal counsel before arraignment;

(5)              Notice that failure to appear at the arraignment will result in issuance of a warrant for the defendant’s arrest.

9(b)        Failure to Appear.  If a defendant fails to appear in person at the time and place specified on the summons, the court may issue a Warrant for Arrest.

9(c)        Service and Return of Summons.

(1)              A criminal summons shall be served by a police officer of the Navajo Nation.

(2)              A criminal summons shall be served within the territorial jurisdiction of the Navajo Nation.

(3)              A criminal summons shall be served upon the defendant by delivering a copy to the defendant personally.

(4)              If the officer serving the criminal summons is unable to find the defendant, he shall make due return not later than fifteen (15) days after he receives it.  His return shall state the reasons he was unable to serve the summons.

RULE 10    Arrest Warrant upon Complaint

10(a)       Application for Arrest Warrant.  If it appears from the complaint that there is probable cause to believe that an offense was committed, and the defendant has committed it, an arrest warrant shall be issued upon written application of the prosecutor.  The application must show one or more of the following circumstances:

(1)              Defendant has failed to appear for arraignment or failed to respond to a criminal summons;

(2)              Defendant is on probation for a prior offense;

(3)              Probable cause to believe that the defendant will not obey a criminal summons;

(4)              Probable cause to believe that the defendant will leave the jurisdiction of the Navajo Nation.

10(b)      Contents of Warrant.  The arrest warrant shall be signed by the issuing judge and it shall contain the following:

(1)              Name of the defendant, or sufficient description to identify the defendant with reasonable certainty;

(2)              Description of the offense(s) charged;

(3)              A statement that the defendant is to be arrested and detained and brought before the judge without unnecessary delay;

(4)              Pending arraignment the judge may set bond and endorse the amount on the warrant;

(5)              An arrest warrant shall not be invalidated nor shall any person in custody thereon be discharged, because of a defect in form.  The warrant may be amended to remedy the defect in form.

10(c)       Execution and Return of Warrant for Arrest.

(1)              By whom.  The warrant shall be directed to, and may be executed by, all police officers in the Navajo Nation.

(2)              Manner of Execution.  A warrant shall be executed by arresting the defendant.  If the officer does not have the warrant in his possession at the time of the arrest, he shall inform the defendant of the offense(s) charged and of the fact that a warrant has been issued and shall show the warrant to the defendant as soon as possible.

(3)              Return.  Return of the warrant shall be made to the issuing court.

RULE 11.   Arrest Without Warrant.      

11(a)       When Arrest Without Warrant Authorized.  A person may be arrested without a warrant by a police officer of the Navajo Nation when:

(1)              The arresting officer witnesses the event(s) which constitute the offense; or

(2)              The arresting officer has probable cause to believe that an offense has been committed and that the person to be arrested has committed the offense.

11(b)      Filing a Criminal Complaint after Arrest without Warrant.  When a person is arrested without a warrant and a criminal complaint has not yet been filed, the prosecutor shall file a criminal complaint on the next day on which the court for the district in which the defendant is being held is open following the arrest.  If no criminal complaint is filed by the time the court closes on said day, the defendant may be released.

RULE 12.   Telephonic Court Orders.

12(a)       Purpose.  The purpose of the arraignment is to bring the defendant before the court; to advise the defendant of the specific nature of the charges against him; to advise the defendant of his rights under the law; and to ask the defendant to enter a plea.

12(b)      Time.

              (1)     Arraignment of a defendant in custody shall be within the time provided by law.  A defendant not arraigned within the time provided shall be released.

12(c)       Arraignment Procedure.  An arraignment shall be conducted in the English language for the record, and if necessary in the Navajo language for the defendant’s understanding, and it shall proceed according to the following steps:

(1)              The defendant shall be given a copy of the complaint;

(2)              The case name and number shall be called and the defendant shall stand and face the Bench;

(3)              The court shall ascertain the defendant’s name, date of birth, tribal membership, if any, census and/or social security number, if any;

(4)              The court shall read the complaint to the defendant and ask the defendant if he understands the charges and give an oral explanation if necessary;

(5)              The judge shall inform the defendant of his rights including the right:

(i)                To remain silent;

(ii)              To have counsel at his or her own expense. (The defendant shall also be informed that the court may appoint counsel if defendant cannot afford counsel.)

(iii)            To plead not guilty;

(iv)            To confront and cross-examine witnesses;

(v)              To be released or admitted to bail unless certain findings are made to the contrary;

(vi)            To trial by jury;

(vii)          To a speedy and pubic trial;

(viii)        To all witnesses;

(ix)            To file a writ of habeas corpus.

(6)              The judge shall inform the defendant of the maximum penalty which could be imposed if the defendant were found guilty of or pleaded guilty to the offense(s) charged.

(7)              After the judge informs the defendant of his rights, the defendant shall then be called upon to plead to the charge(s).

IV.     PARTICULARIZED RIGHTS.

RULE 13.   Trial by Jury.

13(a)       Demand.  The defendant may demand a jury trial at the time of the arraignment or within 15 days thereafter or it will be deemed waived.

13(b)      Procedure.  The demand may be made orally at the arraignment or shall be in writing if made after arraignment.  If made orally, the judge or the clerk of the court shall note the demand in writing in the court file, including the date of the demand.

RULE 14.   Assistance of Counsel.

14(a)       Right to Counsel.  Every defendant has the right to the assistance of counsel at defendant’s own expense.

14(b)      Indigency.  Upon a showing of indigence, the court may appointment counsel for such a defendant, and the court may order counsel to serve without pay.

14(c)       List of Navajo Nation Bar Association Members.  The clerk of the district court shall maintain a list of all active members of the Navajo Nation Bar Association from which counsel shall be appointed.

RULE 15.   Release Prior to Trial.

15(a)       Release on Personal Recognizance.  At the initial appearance before a judge, any person charged with a violation of law may be ordered released pending trial on personal recognizance unless the judge makes a specific finding that such release will not reasonably assure the appearance of the defendant at trial.

15(b)      Release upon Conditions.  Upon a finding a specified in Rule 15(a), the judge may permit release under conditions; which will reasonably assure the appearance of the defendant for trial including the following:

(1)              Placement of restrictions on the activities, travel, association, or place of abode of the defendant during the period of release relevant to the defendant’s appearance as required; or

(2)              The execution of a cash bond; or

(3)              A condition requiring the return of the defendant to custody after specified hours.

15(c)       Order of Release.  The court releasing the defendant shall issue an Order of Release containing a statement of the conditions imposed and the penalties of violating the conditions of release, and advising the defendant that a Warrant of Arrest may be issued immediately upon any violation.  The defendant shall sign or place an identifying mark on the Order agreeing to the release and conditions.

15(d)      Denial of Release.  If there is reason to believe that the defendant is dangerous to public safety or that the defendant will commit a serious crime, or will seek to intimidate any witness, or will otherwise unlawfully interfere with the administration of justice if released, or for any other reason allowed by law, then the court may deny release or may order the defendant to abide by any other condition(s) necessary to the orderly administration of justice.  The court must state the reasons for the record.

15(e)       Amendment of Conditions of Release.  Upon motion by a party, with notice to the opposing party, the court may amend any conditions of release at any time to impose additional or different conditions.  Such motion shall be determined promptly.

15(f)       Review of Conditions of Release; Revocation of Release; Forfeiture of Return of Bond.

(1)              When there is reason to believe a breach of condition of release has occurred, on motion by the prosecutor or on the court’s own motion, the court may order the defendant arrested for the purpose of reviewing the conditions of release.

(2)              After review of the circumstances, if the court determines that the conditions should be modified or the release revoked, it shall so order.  A record of the review hearing shall be made.  The Rules of Evidence shall not apply to such review hearings.

(3)              If there is a breach of a condition of bail the court shall order forfeiture of the bond.

15(g)       Return of Bond.

(1)              If a case is dismissed prior to trial or during trial, where the defendant has complied with all the terms and conditions of the bail, the bond shall be returned;

(2)              Bond shall be refunded only to the person posting such bond.

RULE 16.   Presence of Defendant.

16(a)       Presence Required.  Except as otherwise provided by this Rule, the defendant shall be present at the arraignment and at every stage of the trial, including the impaneling of the jury and return of the verdict, and at the imposition of sentence.

16(b)      Continued Presence not Required.  The progress of the trial to and including the return of the verdict shall not be prevented and the defendant shall be considered to have waived the right to present whenever a defendant who was present at the beginning of the trial.

(1)              Voluntarily leaves the courtroom after the trial has begun (even where defendant has not been informed by the court that the defendant is obligated to remain during the trial); or

(2)              After being warned by the court, engages in conduct that justifies removal from the courtroom.

RULE 17.   Venue.

17(a)       Where Filed.  Except as provided in these Rules, criminal complaints shall be filed in the judicial district in which some act which is the basis for the criminal complaint (in whole or in part) is alleged to have taken place.

17(b)      Transfer.  For good cause, the court on motion of a party or its own motion may transfer any proceeding to any other district court for hearing.

17(c)       Good Cause.  “Good cause” as used in this Rule includes:

(1)              Pretrial publicity in the district in which the proceeding is pending which may substantially impair the ability of either the Navajo Nation or the defendant to get a fair hearing.

(2)              Convenience of witnesses.

(3)              The inability of the court in which the action is pending to hear the matter within a time period consistent with “speedy trial” considerations.

17(d)      Consent of Judge.  If the judge making the transfer does not intend to hear the proceeding following transfer, the written consent of the presiding judge of the district court to which the proceeding is transferred shall be obtained prior to transferring the action.

RULE 18.   Disqualification of Judge.

Disqualification of a judge shall be done in the same manner as in civil actions.

RULE 19.   Mental Competency.

19(a)       Effect of Incompetency.  A person shall not be tried, convicted, sentenced or punished for an offense while, as a result of mental illness or defect; he is unable to understand the proceedings against him or to assist in his own defense.

19(b)      Motion for Examination.  At any time after arraignment, any party, or the court on its own motion, may move for an examination to determine whether a defendant is competent to stand trial or to investigate his mental condition at the time of the offense.  The motion shall state the facts upon which the mental examination is sought.

19(c)       Procedure for Examination.  If the motion is granted, the court, in conference with the prosecution and counsel for the defendant or the defendant pro se, shall order examination as follows:

(1)              Identify one or more mental health experts who will perform the examination and submit the report.

(2)              Have the experts make available to all parties copies of their reports, except that any statement or summary of statements of the defendant concerning the offense charged shall be made available only to the defendant’s counsel or the defendant pro se.

19(d)      Competency Hearing and Orders.

(1)              Hearing.  When the examinations have been completed, the court shall hold a hearing to determine the defendant’s competency to stand trial.  The parties may introduce other evidence regarding the defendant’s mental condition, or by written stipulation, submit the matter of the experts’ reports.

(2)              Orders.  After the hearing:

(A)            If the court finds that the defendant is competent to stand trial, proceedings shall continue without delay.

(B)            If the court determines that the defendant is incompetent to stand trial, and that there is not substantial probability that the defendant will become competent within a reasonable period of time, it shall:

(i)                Order the defendant civilly committed if it finds that his condition warrants such commitment according to the standards provide by law; or

(ii)              Release the defendant.

(C)            If the court determines that the defendant is incompetent to stand trial, but there is a substantial probability that the defendant will become competent within a reasonable time, if any, (i) order the defendant committed to an institution authorized to receive such persons for a period not exceeding the earlier of six (6) months, or (ii) make any other order appropriate to the circumstances.

(D)            The court may order any person responsible for the defendant’s treatment under Rules 19(d)(2)(B)(i) and 19(d)(2)(C) to submit periodic reports on the defendant’s status to the court, the prosecutor, and the defendant’s counsel or the defendant pro se.

19(e)       Subsequent Hearings on Competency to Stand Trial.

(1)              The court shall hold a hearing to redetermine the defendant’s competency:

(A)            Upon receiving a report from an authorized official of the institution in which a defendant is hospitalized under Rule 19(d)(2)(B)(i) or 19(d)(2)(c) stating that in his opinion the defendant has become competent to stand trial; or

(B)            Upon motion of the defendant; or

(C)            At the expiration of the maximum period set by the court.

(2)              Finding of Competency.  If the court finds that the defendant is competent, the regular proceedings shall commence again without delay, the defendant being entitled to repeat any proceeding if there are reasonable grounds to believe he has prejudiced by his previous incompetency.

(3)              Finding of Continuing Incompetency.  If the court finds that the defendant is still incompetent, it shall proceed in accordance with Rules 19(d)(2)(B) and 19(d)(2)(C).

(4)              Dismissal of Charges.  The court may in its discretion dismiss the charges against any defendant adjudged incompetent at any time.  Upon dismissal of the charges, the defendant shall be released from custody unless the court finds that his condition warrants civil commitment.

19(f)       Privilege.

(1)              General Restrictions.  No evidence of any kind obtained under this Rule shall be admissible at any proceeding to determine guilt or innocence unless the defendant presents evidence intended to rebut the presumption of sanity.

(2)              Privileged Statements of the Defendant.

(A)            No statement of the defendant obtained under these provisions, or resulting evidence concerning the events, which form the basis of the charges against him, shall be admissible at the trial of guilt or innocence or at any subsequent proceeding to determine guilt or innocence, without his consent.

(B)            No statement of the defendant or resulting evidence obtained under these provisions, concerning any other events or transactions, shall be admissible at any proceeding to determine his guilt or innocence of criminal charges based on such events or transaction.

RULE 20.   Waiver of Rights.

Unless otherwise specifically provided by law, the defendant may waive any substantive or procedural right.  The court shall accept the waiver if it is satisfied that the waiver is intelligently, knowingly, and voluntarily made.        

V.      PLEAS.

RULE 21.   Pleas.

21(a)       Alternatives.  A defendant may plea guilty, not guilty, or no contest with permission of the court.  A no contest plea shall be treated by the court as a plea of guilty for purposes of sentencing.  Silence, nods, and refusals to plead shall be entered as pleas of no guilty.

21(b)      Acceptance of Plea.  The court shall accept a plea of guilty or no contest upon determining that the plea is voluntary and not the result of force, threats, or promises, apart from a plea bargain.

21(c)       Withdrawal of a Guilty Plea.  A defendant may not withdraw a plea of guilty unless the defendant makes a showing to the district court that the plea of guilt was the result of duress, or was in any way not voluntary.

RULE 22.   Plea Agreements.

22(a)       Procedure.  The prosecutor, and defense counsel or the defendant pro se may engage in discussion for the purpose of entering into a plea agreement.  The court shall not participate in any such discussions.  The plea agreement shall be in writing and accepted by the court before any actions are taken pursuant to the agreement.  The victim may participate in plea agreement discussions.

22(b)      Revocation.  A plea agreement may be revoked by any party prior to its acceptance by the court.

22(c)       Determining the Accuracy of the Agreement and the Voluntariness and

Intelligence of the Plea.  The parties shall file the agreement with the court.  The court shall question the defendant personally to determine that the defendant understands the plea agreement and agrees to its terms and that it contains all the terms of the agreement.

22(d)      Acceptance of Plea.  After making such determinations, the court shall either accept or reject the tendered negotiated plea.  The court shall not be bound by any provision in the plea agreement regarding the sentence or the terms and conditions of probation to be imposed, if, after accepting the agreement and reviewing a presentence report, it rejects the provisions as inappropriate.

22(e)       Rejection of Plea.  If an agreement or any provision thereof is rejected by the court, it shall give the defendant an opportunity to withdraw his plea, advising him that if he permits his plea to and, the disposition of the case may be less favorable to him than that contemplated by the agreement.

22(f)       Disclosure and Confidentiality.  When a plea agreement or any term is accepted, the agreement or such term shall become part of the record.  However, if no agreement is reached, or if the agreement is revoked, rejected by the court, or withdrawn or if the judgment is later vacated or reversed, neither the plea discussion nor any resulting agreement, plea or judgment, nor statements made at a hearing on the plea, shall be admissible against the defendant in any criminal or civil action or administrative proceeding.

22(g)       Withdrawal of Plea under a Plea Agreement.  The court, in its discretion, may allow withdrawal of a plea of guilty or no contest under a plea agreement when necessary to correct a manifest injustice.  Upon withdrawal, the charges against the defendant as they existed before any amendment, reduction or dismissal made a part of a plea agreement, shall be reinstated automatically.