Rules of Criminal Procedure

 

RULES OF CRIMINAL PROCEDURE

 

C. Trial Court Rules (TCR)

 

II. Rules of Criminal Procedure

 

TABLE OF CONTENTS

 

Rule 1. Title and Scope

 

Rule 2. Purpose and Construction

 

Rule 3. The Complaint

 

Rule 4. Arrest Warrant or Summons Upon Complaint

 

Rule 5. Initial Appearance Before the District Court

 

Rule 5.1. Preliminary Examination

 

Rule 6. (Omitted)

 

Rule 7. The Information

 

Rule 8. Joinder of Offenses and of Defendants

 

Rule 9. (Omitted)

 

Rule 10. Arraignment

 

Rule 11. Pleas

 

Rule 12. Pleadings and Motions before Trial; Defenses and Objections

 

Rule 12.1. Notice of Alibi

 

Rule 12.2. Notice of Defense Based Upon Mental Condition

 

Rule 13. Trial Together of Complaint or Information

 

Rule 14. Relief from Prejudicial Joinder

 

Rule 15. Depositions

 

Rule 16. Discovery and Inspection

 

Rule 17. Subpoenas

 

Rule 17.1. Pretrial Conference

 

Rule 18. Venue

 

Rule 19. (Omitted)

 

Rule 20. (Omitted)

 

Rule 21. (Omitted)

 

Rule 22. (Omitted)

 

Rule 23. Trial by Jury or by the Court

 

Rule 24. Trial Jurors

 

Rule 25. Judge; Disability

 

Rule 26. Taking of Testimony

 

Rule 26.1 Determination of Foreign Law

 

Rule 26.2. (Omitted)

 

Rule 27. Proof of Official Record

 

Rule 28. (Omitted)

 

Rule 29. Motion for Judgment of Acquittal

 

Rule 29.1. Closing Argument

 

Rule 30. Instructions

 

Rule 31. Verdict

 

Rule 32. Sentence and Judgment

 

Rule 33. New Trial

 

Rule 34. Arrest of Judgment

 

Rule 35. Correction or Reduction of Sentence

 

Rule 36. Clerical Mistakes

 

Rule 37. Abrogated

 

Rule 38. Stay of Execution

 

Rule 40. (Omitted)

 

Rule 41. Search and Seizure

 

Rule 42. (Omitted)

 

Rule 43. Presence of the Defendant

 

Rule 44. Right to and Assignment of Counsel

 

Rule 45. Time

 

Rule 46. Release From Custody

 

Rule 47. Motions

 

Rule 48. Dismissal

 

Rule 49. Service and Filing of Papers

 

Rule 50. (Omitted)

 

Rule 51. Exceptions Unnecessary

 

Rule 52. Harmless Error and Plain Error

 

Rules 53-60. (Omitted)

 

 

 

RULES OF CRIMINAL PROCEDURE (TCRCrP)

 

 

 

RULE 1.TITLE AND SCOPE

 

These rules govern the procedure in all criminal proceedings in the courts of American Samoa and they shall be known as the Rules of Criminal Procedure and cited as TCRCP.

 

RULE 2.PURPOSE AND CONSTRUCTION.

 

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

 

RULE 3.THE COMPLAINT.

 

The complaint is a written statement of the essential facts constituting the offense charged. It shall be made upon oath before a district court judge or justice of the High Court. The prosecution of all criminal offenses must be commenced by complaints in the district court.

 

RULE 4.ARREST WARRANT OR SUMMONS UPON COMPLAINT.

 

(a) Issuance. If it appears 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 has committed it, a warrant for the arrest of the defendant shall issue to any officer authorized by law to execute it. Upon the request of the attorney for the government a summons instead of a warrant shall issue. More than one warrant or summons may issue on the same complaint. If a defendant fails to appear in response to the summons, a warrant shall issue.

 

(b) Probable Cause. The finding of probable cause may be based upon hearsay evidence in whole or in part.

 

(c) Form.

 

(1) Warrant. The warrant shall be signed by the district court judge or justice of the High Court and shall contain the name of the defendant or, if his name is unknown, any name or description by which he can be identified with reasonable certainty. It shall describe the offense charged in the complaint. It shall command that the defendant be arrested and brought before the nearest available judge or justice at the next sitting of the district court or the High Court.

 

(2) Summons. The summons shall be in the same form as the warrant except that it shall summon the defendant to appear before the district court or the High Court at a stated time and place.

 

(d) Execution or Service; and Return.

 

(1) By Whom. The Warrant shall be executed by a marshal, police officer or other officer authorized by law. The summons may be served by any person authorized to serve a summons in a civil action.

 

(2) Territorial Limits. The warrant may be executed or the summons may be served at any place within the jurisdiction of American Samoa.

 

(3) Manner. The warrant shall be executed by the arrest of the defendant. The officer need not have the warrant in his possession at the time of arrest, but upon request he shall show the warrant to the defendant as soon as possible. If the officer does not have the warrant in his possession at the time of the arrest, he shall then inform the defendant of the offense charged and of the fact that a warrant has been issued. The summons shall be served upon a defendant by delivering a copy to him personally, or by leaving it at his dwelling house or usual place of abode with some person of suitable age and discretion then residing therein and by mailing a copy of the summons to the defendant's last known address if known.

 

(4) Return. The officer executing a warrant shall make return thereof to the district court judge before whom the defendant is brought pursuant to 5 TCRCrP. At the request of the attorney for the government any unexecuted warrant shall be returned to the district court judge by whom it was issued and shall be canceled by him. On or before the return day the person to whom a summons was delivered for service shall make return thereof to the district court judge before whom the summons is returnable. At the request of the attorney for the government made at any time while the complaint is pending, a warrant returned unexecuted and not canceled or a summons returned unserved or a duplicate thereof may be delivered by the district court judge to the marshal or other authorized person for execution or service.

 

RULE 5.INITIAL APPEARANCE BEFORE THE DISTRICT COURT.

 

(a) In General. An officer making an arrest under a warrant issued upon a complaint or any person making an arrest without a warrant shall take the arrest person without unnecessary delay before the next sitting of the district court. If a person arrested without a warrant is brought before the district court, a complaint shall be filed forthwith which shall comply with the requirements of 2(a) TCRCrP with respect to the showing of probable cause. When a person, arrested with or without a warrant or given a summons, appears initially before the district court, the district court shall proceed in accordance with the applicable subdivisions of this rule.

 

(b) If the charge against the defendant is triable by the district court, the district court shall proceed in accordance with these rules and any applicable statutes.

 

(c) Offenses Not Triable by a District Court Judge. If the charge against the defendant is not triable by a district court judge, the defendant shall not be called upon to plead. The district court judge shall inform the defendant of the complaint against him and of any affidavit filed therewith, of his right to retain counsel, of his right to request the assignment of counsel if he is unable to obtain counsel, and of the general circumstances under which he may secure pretrial releases. He shall inform the defendant that he is not required to make a statement and that any statement made by him may be used against him. The judge shall also inform the defendant of his right to a preliminary examination. He shall allow the defendant reasonable time and opportunity to consult counsel and shall admit the defendant to bail as provided by statute or in these rules.

 

A defendant is entitled to a preliminary examination, unless waived, when charged with any offense other than a misdemeanor which is to be tried by the High Court. If the defendant waives preliminary examination, the district court judge shall forthwith hold him to answer in the High Court. If the defendant does not waive the preliminary examination, the judge shall schedule a preliminary examination. Such examination shall be held within a reasonable time but in any event not later than 10 days following the initial appearance if the defendant is in custody and no later than 20 days if he is not in custody. With the consent of the defendant and upon a showing of good cause, taking into account the public interest in the prompt disposition of criminal cases, time limits specified in this subdivision may be extended one or more times by the district court judge. In the absence of such consent by the defendant, time limits may be extended by the district court judge only upon a showing that extraordinary circumstances exist and that delay is indispensable to the interests of justice.

 

RULE 5.1.PRELIMINARY EXAMINATION.

 

(a) Probable Cause Finding. If from the evidence it appears that there is probable cause to believe than an offense has been committed and that the defendant committed it, the district court judge shall forthwith hold him to answer in the High Court. The finding of probable cause may be based upon hearsay evidence in whole or in part. The defendant may cross-examine witnesses against him and may introduce evidence in his own behalf. Objections to evidence on the ground that it was acquired by unlawful means are not properly made at the preliminary examination. Motions to suppress must be made to the High Court as provided in 12 TCRCrP.

 

(b) Discharge of Defendant. If from the evidence it appears that there is not probable cause to believe that an offense has been committed or that the defendant committed it, the district court judge shall dismiss the complaint and discharge the defendant. The discharge of the defendant shall not preclude the government from instituting a subsequent prosecution for the same offense.

 

(c) Records. After concluding the proceeding the district court judge shall transmit forthwith to the clerk of court all papers in the proceeding. The district court judge shall promptly make or cause to be made a record or summary of such proceeding.

 

(1) On timely application to a district court judge, the attorney for a defendant in a felony case to be tried before the High Court may be given the opportunity to have the recording of the hearing on preliminary examination made available for his information in connection with any further hearing or in connection with his preparation for trial. The district court may appoint the place for and define the conditions under which such opportunity may be afforded counsel.

 

(2) On application of a defendant addressed to the High Court or any justice thereof, an order may issue that the district court judge make available a copy of the transcript, or of a portion thereof, to defense counsel. Such order shall provide for prepayment of costs of such transcript by the defendant unless the defendant makes a sufficient affidavit that he is unable to pay or to give security therefore, in which case the transcript shall be paid for by the Court from available funds. Counsel for the government may move also that a copy of the transcript, in whole or in part, be made available to it, for good cause shown, and an order may be entered granting such motion in whole or in part, on appropriate terms, except that the government need not prepay costs nor furnish security therefor.

 

RULE 6. (OMITTED).

 

RULE 7.THE INFORMATION.

 

(a) Use of Information. All felony offenses shall be initiated in the High Court by the filing of an information.

 

(b) (OMITTED).

 

(c) Nature and Contents.

 

(1) In General. The information shall be a plain, concise and definite written statement of the essential facts constituting the offense charged. It shall be signed by the attorney for the government. It need not contain a formal commencement, a formal conclusion or any other matter not necessary to such statement. Allegations made in one count may be incorporated by reference in another count. It may be alleged in a single count that the means by which the defendant committed the offense are unknown or that he committed it by one or more specified means. The information shall state for each count the official or customary citation of the statute, rule, regulation or other provision of law which the defendant is alleged therein to have violated.

 

(2) Criminal Forfeiture. No judgment of forfeiture may be entered in a criminal proceeding unless the information shall allege the extent of the interest or property subject to forfeiture.

 

(3) Harmless Error. Error in the citation or its omission shall not be ground for dismissal of the information or for reversal of a conviction if the error or omission did not mislead the defendant to his prejudice.

 

(d) Surplusage. The court on motion of the defendant may strike surplusage from the information.

 

(e) Amendment of Information. The court may permit an information to be amended at any time before verdict or finding if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced.

 

(f) Bill of Particulars. The court may direct the filing of a bill of particulars. A motion for a bill of the filing of a bill of particulars. A motion for a bill of particulars may be made before arraignment or within ten days after arraignment or at such later time as the court may permit. A bill of particulars may be amended at any time subject to such conditions as justice requires.

 

RULE 8.JOINDER OF OFFENSES AND OF DEFENDANTS.

 

(a) Joinder of Offenses. Two or more offenses may be charged in the same information in a separate count for each offense if the offenses charged, whether felonies or misdemeanors or both, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.

 

(b) Joinder of Defendants. Two or more defendants may be charged in the same information 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. Such defendants may be charged in one or more counts together or separately and all of the defendants need not be charged in each count.

 

RULE 9. (OMITTED).

 

RULE 10.ARRAIGNMENT.

 

Arraignments shall be conducted in open court and shall consist of reading the complaint or information to the defendant or stating to him the substance of the charge and calling on him to plead thereto. He shall be given a copy of the complaint or information before he is called upon to plead.

 

RULE 11.PLEAS.

 

(a) Alternatives. A defendant may plead not guilty, guilty, or nolo contendere. If a defendant refuses to plead or if a defendant corporation fails to appear, the court shall enter a plea of not guilty.

 

(b) Nolo Contendere. A defendant may plead nolo contendere only with the consent of the court. Such a plea shall be accepted by the court only after due consideration of the views of the parties and the interest of the public in the effective administration of justice.

 

(c) Advice to Defendant. Before accepting a plea of guilty or nolo contendere, the court must address the defendant personally in open court and inform him of, and determine that he understands, the following:

 

(1) the nature of the charge to which the plea is offered, the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law; and

 

(2) if the defendant is not represented by an attorney, that he has the right to be represented by an attorney at every stage of the proceeding against him and, if necessary, one will be appointed to represent him; and

 

(3) that he has the right to plead not guilty or to persist in that plea if it has already been made, and, if applicable, that he has the right to be tried by a jury and at that trial has the right to the assistance of counsel, the right to confront and cross-examine witnesses against him, and the right not to be compelled to incriminate himself; and

 

(4) that if he pleads guilty or nolo contendere there will not be a further trial of any kind, so that by pleading guilty or nolo contendere he waives the right to a trial; and

 

(5) that if he pleads guilty or nolo contendere, the court may ask him questions about the offense to which he has pleaded, and if he answers these questions under oath, on the record, and in the presence of counsel, his answers may later be used against him in a prosecution for perjury or false statement.

 

(d) Insuring That the Plea is Voluntary. The court shall not accept a plea of guilty or nolo contendere without first, by addressing the defendant personally in open court, determining that the plea is voluntary and not the result of force or threats or of promises apart from a plea agreement. The court shall also inquire as to whether the defendant's willingness to plead guilty or nolo contendere results from prior discussions between the attorney for the government and the defendant or his attorney.

 

(e) Plea Agreement Procedure.

 

(1) In General. The attorney for the government and the attorney for the defendant or the defendant when acting pro se may engage in discussions with a view toward reaching an agreement that, upon the entering of a plea of guilty or nolo contendere to a charged offense or to a lesser or related offense, the attorney for the government will do any of the following:

 

(A) move for dismissal of other charges; or

 

(B) 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 upon the court; or

 

(C) agree that a specific sentence is the appropriate disposition of the case.

 

The court shall not participate in any such discussions.

 

(2) Notice of Such Agreement. If a plea agreement has been reached by the parties, the court shall, on the record, require the disclosure of the agreement in open court or, on a showing of good cause, in camera, at the time the plea is offered. If the agreement is of the type specified in subdivision (e)(1)(A) or (C), the court may accept or reject the agreement, or may defer its decision as to the acceptance or rejection until there has been an opportunity to consider the presentence report. If the agreement is of the type specified in subdivision (e)(1)(A) or (C), the court may accept or reject the agreement, or may defer its decision as to the acceptance or rejection until there has been an opportunity to consider the presentence report. If the agreement is of the type specified in subdivision (e)(1)(B), the court shall advise the defendant that if the court does not accept the recommendation or request the defendant nevertheless has no right to withdraw his plea.

 

(3) Acceptance of a Plea Agreement. If the court accepts the plea agreement, the court shall inform the defendant that it will embody in the judgment and sentence the disposition provided for in the plea agreement.

 

(4) Rejection of a Plea Agreement. If the court rejects the plea agreement, the court shall, on the record, inform the parties of this fact, advise the defendant personally in open court or, on a showing of good cause, in camera, that the court is not bound by the plea agreement, afford the defendant the opportunity to then withdraw his plea, and advise the defendant that if he persists in his guilty plea or plea of nolo contendere the disposition of the case may be less favorable to the defendant than that contemplated by the plea agreement.

 

(5) Time of Plea Agreement Procedure. Except for good cause shown, notification to the court of the existence of a plea agreement shall be given at the arraignment or at such other time, prior to trial, as may be fixed by the court.

 

(6) Inadmissibility of Pleas, Offers of Pleas, and Related Statements. Except as otherwise provided in this paragraph, evidence of a plea of guilty, later withdrawn, or a plea of nolo contendere, or of an offer to plead guilty or nolo contendere to the crime charged or any other crime, or of statements made in connection with, and relevant to, any of the foregoing pleas or offers, is not admissible in any civil or criminal proceeding against the person who made the plea or offer. However, evidence of a statement made in connection with, and relevant to, a plea of guilty, later withdrawn, a plea of nolo contendere, or an offer to plead guilty or nolo contendere to the crime charged or any other crime, is admissible in a criminal proceeding for perjury or false statement if the statement was made by the defendant under oath, on the record, and in the presence of counsel.

 

(f) Determining Accuracy of Plea. Notwithstanding the acceptance of a plea of guilty, the court should not enter a judgment upon such plea without making such inquiry as shall satisfy it that there is a factual basis for the plea.

 

(g) Record of Proceedings. A verbatim record of the proceedings at which the defendant enters a plea shall be made and, if there is a plea of guilty or nolo contendere, the record shall include, without limitation, the court's advice to the defendant, the inquiry into the voluntariness of the plea including any plea agreement, and the inquiry into the accuracy of a guilty plea.

 

RULE 12.PLEADINGS AND MOTIONS BEFORE TRIAL; DEFENSES AND OBJECTIONS.

 

(a) Pleadings and Motions. Pleadings in criminal proceedings shall be the complaint and information, and the pleas of not guilty, guilty and nolo contendere. All other pleas and demurrers and motions to quash are abolished, and defenses and objections raised before trial which heretofore could have been raised by one or more of them shall be raised only by motion to dismiss or to grant appropriate relief, as provided in these rules.

 

(b) Pretrial Motions. Any defense, objection, or request which is capable of determination without the trial of the general issue may be raised before trial by motion. Motions may be written or oral at the discretion of the judge. The following must be raised prior to trial:

 

(1) Defenses and objections based on defects in the institution of the prosecution; or

 

(2) Defenses and objections based on defects in the information (other than that it fails to show jurisdiction in the court or to charge an offense which objections shall be noticed by the court at any time during the pendency of the proceedings); or

 

(3) Motions to suppress evidence; or

 

(4) Requests for discovery under Rule 2.16; or

 

(5) Requests for a severance of charges or defendants under 14 TCRCrP.

 

(c) Motion Date.

 

The court may, at the time of the arraignment or as soon thereafter as practicable, set a time for the making of pretrial motions or requests and, if required, a later date of hearing.

 

(d) Notice by the Government of the Intention to Use Evidence.

 

(1) At the Discretion of the Government. At the arraignment or as soon thereafter as is practicable, the government may give notice to the defendant of its intention to use specified evidence at trial in order to afford the defendant an opportunity to raise objections to such evidence prior to trial under subdivision (b)(3) of this rule.

 

(2) At the Request of the Defendant. At the arraignment or as soon thereafter as is practicable the defendant may, in order to afford an opportunity to move to suppress evidence under subdivision (b)(3) of this rule, request notice of the government's intention to use (in its evidence in chief at trial) any evidence which the defendant may be entitled to discover under 16 TCRCrP subject to any relevant limitations prescribed in 16 TCRCrP.

 

(e) Ruling on Motion. A motion made before trial shall be determined before trial unless the court, for good cause, orders that it be deferred for determination at the trial of the general issue or until after verdict, but no such determination shall be deferred if a party's right to appeal is adversely affected. Where factual issues are involved in determining a motion, the court shall state its essential findings on the record.

 

(f) Effect of Failure to Raise Defenses or Objections. Failure by a party to raise defenses or objections or to make requests which must be made prior to trial, at the time set by the court pursuant to subdivision (c), or prior to any extension thereof made by the court, shall constitute waiver thereof, but the court for cause shown may grant relief from the waiver.

 

(g) Records. A verbatim record shall be made of all proceedings at the hearing, including such findings of fact and conclusions of law as are made orally.

 

(h) Effect of Determination. If the court grants a motion based on a defect in the institution of the prosecution or in the information, it may also order that the defendant be continued in custody or that his bail be continued for a specified time pending the filling of a new information. Nothing in this rule shall be deemed to affect the provisions of any Act of the Fono relating to periods of limitations.

 

RULE 12.1.NOTICE OF ALIBI.

 

(a) Notice by Defendant. Upon written demand of the attorney for the government stating the time, date, and place at which the alleged offense was committed, the defendant shall serve within ten days, or at such different time as the court may direct, upon the attorney for the government a written notice of his intention to offer a defense of alibi. Such notice by the defendant shall state the specific place or places at which the defendant claims to have been at the time of the alleged offense and the names and addresses of the witnesses upon whom he intends to rely to establish such alibi.

 

(b) Disclosure of Information and Witness. Within ten days thereafter, but in no event less than ten days before trial, unless the court otherwise directs, the attorney for the government shall serve upon the defendant or his attorney a written notice stating the names and addresses of the witnesses upon whom the government intends to rely to establish the defendant's presence at the scene of the alleged offense and any other witnesses to be relied on to rebut testimony of any of the defendant's alibi witnesses.

 

(c) Continuing Duty to Disclose. If prior to or during trial, a party learns of an additional witness whose identity, if known, should have been included in the information furnished under subdivision (a) or (b), the party shall promptly notify the other party or his attorney of the existence and identity of such additional witness.

 

(d) Failure to Comply. Upon the failure of either party to comply with the requirements of this rule, the court may exclude the testimony of any undisclosed witness offered by such party as to the defendant's absence from or presence at, the scene of the alleged offense. This rule shall not limit the right of the defendant to testify in his own behalf.

 

(e) Exceptions. For good cause shown, the court may grant an exception to any of the requirements of sub-divisions (a) through (d) of this rule.

 

(f) Inadmissibility of Withdrawn Alibi. Evidence of an intention to rely upon an alibi defense, later withdrawn, or of statements made in connection with such intention, is not admissible in any civil or criminal proceeding against the person who gave notice of the intention.

 

RULE 12.2.NOTICE OF DEFENSE BASED UPON MENTAL CONDITION.

 

(a) Defense of Insanity. If a defendant intends to rely upon the defense of insanity at the time of the alleged crime, he shall, within the time provided for the filing of pretrial motions or at such later time as the court may direct, notify the attorney for the government in writing of such intention and file a copy of such notice with the clerk. If there is a failure to comply with the requirements of this subdivision, insanity may not be raised as a defense. The court may for cause shown allow late filing of the notice or grant additional time to the parties to prepare for trial or make such other order as may be appropriate.

 

(b) Mental Disease or Defect Inconsistent with the Mental Element Required for the Offense Charged. If a defendant intends to introduce expert testimony relating to a mental disease, defect, or other condition bearing upon the issue of whether he had the mental state required for the offense charged, he shall, within the time provided for the filing of pretrial motions or at such later time as the court may direct, notify the attorney for the government in writing of such intention and file a copy of such notice with the clerk. The court may for cause shown allow late filing of the notice or grant additional time to the parties to prepare for trial or make such other order as may be appropriate.

 

(c) Psychiatric Examination. In an appropriate case the court may, upon motion of the attorney for the government, order the defendant to submit to a psychiatric examination by a psychiatrist designated for this purpose in the order of the court. No statement made by the accused in the course of any examination provided for by this rule, whether the examination shall be with or without the consent of the accused, shall be admitted in evidence against the accused on the issue of guilt in any criminal proceeding.

 

(d) Failure to Comply. If there is a failure to give notice when required by subdivision (b) of this rule or to submit to an examination when ordered under subdivision (c) of this rule, the court may exclude the testimony of any expert witness offered by the defendant on the issue of his mental state.

 

RULE 13.TRIAL TOGETHER OF COMPLAINT OR INFORMATION.

 

The court may order two or more complaints or information to be tried together if the offenses, and the defendants if there is more than one, could have been joined in a single complaint or information. The procedure shall be the same as if the prosecution were under such single complaint or information.

 

RULE 14.RELIEF FROM PREJUDICIAL JOINDER.

 

If it appears that a defendant or the government is prejudiced by a joinder of offenses or of defendants in a complaint or an information or by such joinder for trial 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 attorney for the government to deliver to the court for inspection in camera any statements or confessions made by the defendants which the government intends to introduce in evidence at the trial.

 

RULE 15.DEPOSITIONS.

 

(a) When Taken. Whenever due to exceptional circumstances of the case it is in the interest of justice that the testimony of a prospective witness of a party be taken and preserved for use at trial, the court may upon motion of such party and notice to the parties order that testimony of such witness be taken by deposition and that any designated book, paper, document, record, recording, or other material not privileged, be produced at the same time and place. If a witness is committed for failure to give bail to appear to testify at a trial or hearing, the court on written motion of the witness and upon notice to the parties may direct that his deposition be taken. After the deposition has been subscribed the court may discharge the witness.

 

(b) Notice of Taking. The party at whose instance a deposition is to be taken shall give to every party reasonable written notice of the time and place for taking the deposition. The notice shall state the name and address of each person to be examined. On motion of a party upon whom the notice is served, the court for cause shown may extend or shorten the time or change the place for taking the deposition. The officer having custody of a defendant shall be notified of the time and place set for the examination and shall, unless the defendant waives in writing the right to be present, produce him at the examination and keep him in the presence of the witness during the examination, unless, after being warned by the court that disruptive conduct will cause him to be removed from the place of the taking of the deposition, he persists in conduct which is such as to justify his being excluded from that place. A defendant not in custody shall have the right to be present at the examination upon request subject to such terms as may be fixed by the court, but his failure, absent good cause shown, to appear after notice and tender of expenses in accordance with subdivision (c) of this rule shall constitute a waiver of that right and of any objection to the taking and use of the deposition based upon that right.

 

(c) Payment of Expense. Whenever a deposition is taken at the instance of the government, or whenever a deposition is taken at the instance of a defendant who is unable to bear the expenses of the taking of the deposition, the court may direct that the expense of travel and subsistence of the defendant and his attorney for attendance at the examination and the cost of the transcript of the deposition shall be paid by the government.

 

(d) How Taken. Subject to such additional conditions as the court shall provide, a deposition shall be taken and field in the manner provided in civil actions except as otherwise provided in these rules, provided that (1) in no event shall a deposition be taken of a party defendant without his consent, and (2) the scope and manner of examination and cross-examination shall be such as would be allowed in the trial itself. The government shall make available to the defendant or his counsel for examination and use at the taking of the deposition any statement of the witness being deposed which is in the possession of the government and to which the defendant would be entitled at the trial.

 

(e) Use. At the trial or upon any hearing, a part or all of a deposition, so far as otherwise admissible under the rules of evidence, may be used as substantive evidence if the witness is unavailable, as unavailability is defined in 804(a) TCREv, testimony at the trial or hearing inconsistent with or the witness gives his deposition. Any deposition may also be used by any party for the purpose of contradicting or impeaching the testimony of the deponent as a witness. If only a part of a deposition is offered in evidence by a party, an adverse party may require him to offer all of it which is relevant to the part offered and any party may offer other parts.

 

(f) Objections to Deposition Testimony. Objections to deposition testimony or evidence or parts thereof and the grounds for the objection shall be stated at the time of the taking of the deposition.

 

(g) Deposition by Agreement Not Precluded. Nothing in this rule shall preclude the taking of a deposition, orally or upon written questions, or the use of a deposition, by agreement of the parties with the consent of the court.

 

RULE 16.DISCOVERY AND INSPECTION.

 

(a) Disclosure of Evidence by the Government.

 

(1) Information Subject to Disclosure.

 

(A) Statement of Defendant. Upon request of a defendant the government shall permit the defendant to inspect and copy or photograph; any relevant written or recorded statements made by the defendant, or copies thereof, within the possession, custody or control of the government, the existence of which is known, or by the exercise of due diligence may become known, to the attorney for the government; and the substance of any oral statement which the government intends to offer in evidence at the trial made by the defendant whether before or after arrest in response to interrogation by any person when known to the defendant to be a government agent; where the defendant is a corporation, partnership, association or labor union, the court may grant the defendant, upon its motion, discovery of relevant recorded testimony of any witness who (1) was, at the time of his testimony, so situated as an officer or employee as to have been able legally to bind the defendant in respect to conduct constituting the offense, or (2) was, at the time of the offense, personally involved in the alleged conduct constituting the offense and so situated as an officer or employee as to have been able legally to bind the defendant in respect to that alleged conduct in which he was involved.

 

(B) Defendant's Prior Record. Upon request of the defendant, the government shall furnish to the defendant such copy of his prior criminal record, if any, as is within the possession, custody, or control of the government, the existence of which is known, or by the exercise of due diligence may become known, to the attorney for the government.

 

(C) Documents and Tangible Objects. Upon request of the defendant the government shall permit the defendant to inspect and copy or photograph books, papers, documents, photographs, tangible objects, buildings or places, or copies or portions thereof, which are within the possession, custody or control of the government, and which are material to the preparation of his defense or are intended for use by the government as evidence in chief at the trial, or ere obtained from or belong to the defendant.

 

(D) Reports of Examination and Tests. Upon request of a defendant the government shall permit the defendant to inspect and copy or photograph any results or reports of physical or mental examinations, and of scientific tests or experiments, or copies thereof, which are within the possession, custody, or control of the government, the existence of which is known, or by the exercise of due diligence may become known, to the attorney for the government, and which are material to the preparation of the defense or are intended for use by the government as evidence in chief at the trial.

 

(2) Information Not Subject to Disclosure. Except as provided in paragraphs (A), (B), and (D) of subdivision (a) (1), this rule does not authorize the discovery or inspection of reports, memorandum, or other internal government documents made by the attorney for the government or other government agents in connection with the investigation or prosecution of the cases, or of statements made by government witnesses or prospective government witnesses.

 

(3) (OMITTED).

 

(b) Disclosure of Evidence by the Defendant.

 

(1) Information Subject to Disclosure.

 

(A) Documents and Tangible Objects. If the defendant requests disclosure under subdivision (a)(1)(C) or (D) of this rule, upon compliance with such request by the government, the defendant, on request of the government shall permit the government to inspect and copy or photograph books, papers, documents, photographs, tangible objects, or copies or portions thereof, which are within the possession, custody, or control of the defendant and which the defendant intends to introduce as evidence in chief at the trial.

 

(B) Reports of Examinations and Tests. If the defendant requests disclosure under subdivision (a)(1)(C) or (D) of this rule, upon compliance with such request by the government, the defendant, on request of the government, shall permit the government to inspect and copy or photograph any results or reports of physical or mental examinations and of scientific tests or experiments made in connection with the particular case, or copies thereof, within the possession or control of the defendant, which the defendant intends to introduce as evidence in chief at the trial or which were prepared by a witness whom the defendant intends to call at the trial when the results or reports relate to his testimony.

 

(2) Information Not Subject to Disclosure. Except as to scientific or medical reports, this subdivision does not authorize the discovery or inspection of reports, memoranda, or other internal defense documents made by the defendant, or his attorneys or agents in connection with the investigation or defense of the case, or of statements made by the defendant, or by government or defense witnesses, or by prospective government or defense witnesses, to the defendant, his agents or attorneys.

 

(c) Continuing Duty to Disclose. If, prior to or during trial, a party discovers additional evidence or material previously requested or ordered, which is subject to discovery or inspection under this rule, he shall promptly notify the other party or his attorney or the court of the existence of the additional evidence or material.

 

(d) Regulation of Discovery.

 

(1) Protective and Modifying Orders. Upon a sufficient showing the court may at any time order that the discovery or inspection be denied, restricted, or deferred, or make such other order as is appropriate. Upon motion by a party, the court may permit the party to make such showing, in whole or in part, in the form of a written statement to be inspected by the judge alone. If the court enters an order granting relief following such an ex parte showing, the entire text of the party's statement shall be sealed and preserved in the records of the court to be made available to the appellate court in the event of an appeal.

 

(2) Failure to Comply with a 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 such other order as it deems just under the circumstances. The court may specify the time, place and manner of making the discovery and inspection and may prescribe such terms and conditions as are just.

 

(e) Alibi Witnesses. Discovery of alibi witnesses is governed by 12.1 TCRCrP.

 

RULE 17.SUBPOENA

 

(a) For Attendance of Witnesses; Form; Issuance. A subpoena shall be issued by the clerk under the seal of the court. It shall state the name of the court and the title, if any, of the proceeding, and shall command each person to whom it is directed to attend and give testimony at the time and place specified therein. The clerk shall issue a subpoena, signed and sealed but otherwise in blank to a party requesting it, who shall fill in the blanks before it is served.

 

(b) Defendants Unable to Pay. The court shall order at any time that a subpoena be issued for service on a named witness upon an ex parte application of a defendant upon a satisfactory showing that the defendant is financially unable to pay the fees of the witness and that the presence of the witness is necessary to an adequate defense. If the court orders the subpoena to be issued the costs incurred by the process and the fees of the witness so subpoenaed shall be paid in the same manner in which similar costs and fees are paid in case of a witness subpoenaed in behalf of the government.

 

(c) For Production of Documentary Evidence and of Objects. A subpoena may also command the person to whom it is directed to produce the books, papers, documents or other objects designated therein. The court on motion made promptly may quash or modify the subpoena if compliance would be unreasonable or oppressive. The court may direct that books, papers, documents or objects designated in the subpoena be produced before the court at a time prior to the trial or prior to the time when they are to be offered in evidence and may upon their production permit the books, papers, documents or objects or portions thereof to be inspected by the parties and their attorneys.

 

(d) Service. A subpoena may be served by the marshal, by his deputy or by any other person who is not a party and who is not less than 18 years of age. Service of a subpoena shall be made by delivering a copy thereof to the person named.

 

(e) Place of Service.

 

(1) (OMITTED).

 

(2) (OMITTED).

 

(3) In American Samoa. A subpoena requiring the attendance of a witness at a hearing or trial may be served at any place within American Samoa.

 

(f) For Taking Deposition; Place of Examination.

 

(1) Issuance. An order to take a deposition authorizes the issuance by the clerk of the court subpoenas for the persons named or described therein.

 

(2) Place. The witness whose deposition is to be taken may be required by subpoena to attend at any place designated by the trial court, taking into account the convenience of the witness and the parties.

 

(g) Contempt. Failure by any person without adequate excuse to obey a subpoena served upon him may be deemed a contempt of the court from which the subpoena issued.

 

(h) Information Not Subject to Subpoena. Statements made by witnesses or prospective witnesses may not be subpoenaed from the government or the defendant under this rule, but shall be subject to production only in accordance with the provisions of 26.2 TCRCrP.

 

RULE 17.1PRETRIAL CONFERENCE.

 

At any time after the filing of the information the court upon motion of any party or upon its own motion may order one or more conferences to consider such matters as will promote a fair and expeditious trial. At the conclusion of a conference the court shall prepare and file a memorandum of the matters agreed upon. No admissions made by the defendant or his attorney at the conference shall be used against the defendant unless the admissions are reduced to writing and signed by the defendant and his attorney. This rule shall not be invoked in the case of a defendant who is not represented by counsel.

 

RULE 18.VENUE.

 

The government must proof that the crime of which the defendant is accused was committed in the Territory.

 

RULE 19. (OMITTED).

 

RULE 20. (OMITTED).

 

RULE 21. (OMITTED).

 

RULE 22. (OMITTED).

 

RULE 23.TRIAL BY JURY OR BY THE COURT.

 

(a) Trial by Jury. Cases required to be tried by jury shall be so tried unless the defendant waives a jury trial in writing with the approval of the court.

 

(b) Juries shall be of six qualified persons.

 

(c) Trial Without a Jury. In a case tried without a jury the court shall make a general finding and shall in addition, on request made before the general finding, find the facts specially. Such findings may be oral. If an opinion or memorandum of decision is filed, it will be sufficient if the findings of fact appear therein.

 

RULE 24.TRIAL JURORS.

 

(a) Examination. Voir dire of prospective jurors shall be conducted by the Court. The court may permit the defendant or his attorney and the attorney for the government to supplement the examination by such further inquiry as it deems proper or shall itself pose to the prospective jurors such additional questions submitted by the parties or their attorneys as it deems proper.

 

(b) Peremptory challenges. In the High Court each side is entitled to 6 peremptory challenges. In the District Court each side is entitled to 3 peremptory challenges. If there is more than one defendant, the court may allow the defendants additional peremptory challenges and permit them to be exercised separately or jointly in which cases the prosecution will be entitled to an equal number of challenges.

 

(c) Alternate Jurors. The court may direct that not more than 3 jurors in addition to the regular jury be called and impanelled to sit as alternate jurors. Alternate jurors in the order in which they are called shall replace jurors who, prior to the time the jury retires to consider its verdict, become or are found to be unable or disqualified to perform their duties. Alternate jurors shall be drawn in the same manner, shall have the same qualifications, shall be subject to the same examination and challenges, shall take the same oath and shall have the same functions, powers, facilities and privilege as the regular jurors. An alternate juror who does not replace a regular juror shall be discharged after the jury retires to consider its verdict. Each side is entitled to 1 peremptory challenge in addition to those otherwise allowed by law if 1 or 2 alternate jurors are to be impanelled and 2 peremptory challenges if 3 alternate jurors are to be impanelled. The additional peremptory challenges may be used against an alternate juror only, and the other peremptory challenges allowed by these rules may not be used against an alternate juror.

 

Effective May 14, 1984

 

RULE 25.JUDGE; DISABILITY.

 

(a) During 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 in or assigned to the court, upon certifying that he has familiarized himself with the record of the trial, may proceed with and finish the trial.

 

(b) 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 the duties to be performed by the court after a verdict or finding of guilt, any other judge regularly sitting in or assigned to the court may perform those duties; but if such other judge is satisfied that he cannot perform those duties because he did not preside at the trial or for any other reason, he may in his discretion grant a new trial.

 

RULE 26.TAKING OF TESTIMONY.

 

In all trials the testimony of witnesses shall be taken orally in open court, unless otherwise provided by an Act of the Fono or by these rules, the American Samoa Rules of Evidence, or other rules adopted by the High Court.

 

RULE 26.1.DETERMINATION OF FOREIGN LAW.

 

A party who intends to raise an issue concerning the law of a foreign country shall give reasonable written notice. The court, in determining foreign law, may consider any relevant material or source, including testimony, whether or not submitted by a party or admissible under the American Samoa Rules of Evidence. The court's determination shall be treated as a ruling on a question of law.

 

RULE 26.2. (OMITTED).

 

RULE 27. PROOF OF OFFICIAL RECORD.

 

An official record or an entry therein or the lack of such a record or entry may be proved in the same manner as in civil actions.

 

RULE 28. (OMITTED).

 

RULE 29.MOTION FOR JUDGMENT OF ACQUITTAL.

 

(a) Motion Before Submission to Jury. Motions for directed verdict are abolished and motions for judgment of acquittal shall be used in their place. The court on motion of a defendant or of its own motion shall order the entry of judgment of acquittal of one or more offenses charged in the information after the evidence on either side is closed if the evidence is insufficient to sustain a conviction of such offense or offenses. If a defendant's motion for judgment at the close of the evidence offered by the government is not granted, the defendant may offer evidence without having reserved the right.

 

(b) Reservation of Decision on Motion. If a motion for judgment of acquittal is made at the close of all 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 of guilty or is discharged without having returned 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 within 7 days after the jury is discharged or within such further time as the court may fix during the 7-day period. If a verdict of guilty is returned the court may on such motion set aside the verdict and enter judgment of acquittal. If no verdict is returned the court may enter judgment of acquittal. It shall not be necessary to the making of such a motion that a similar motion has been made prior to the submission of the case to the jury.

 

RULE 29.1CLOSING ARGUMENT.

 

After the closing of evidence the prosecution shall open the argument. The defense shall be permitted to reply. The prosecution shall then be permitted to reply in rebuttal.

 

RULE 30.INSTRUCTIONS.

 

At the close of the evidence or at such earlier time during the trial as the court reasonably directs, any party may file written request that the court instruct the jury on the law as set forth in the requests. At the same time copies of such requests shall be furnished to adverse parties. The court shall inform counsel of its proposed action upon the requests prior to their arguments to the jury, but the court shall instruct the jury after the arguments are completed. No party may assign as error any portion of the charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection. Opportunity shall 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.

 

RULE 31.VERDICT.

 

(a) Return. The verdict shall be unanimous. It shall be returned by the jury to the judge in open court.

 

(b) 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 as to whom it does not agree may be tried again.

 

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

 

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

 

(e) Criminal Forfeiture. If the information alleges that an interest or property is subject to criminal forfeiture, a special verdict shall be returned as to the extent of the interest or property subject to forfeiture, if any.

 

RULE 32.SENTENCE AND JUDGMENT.

 

(a) Sentence.

 

(1) Imposition of Sentence. Sentence shall be imposed without unreasonable delay. Before imposing sentence, the court shall afford counsel an opportunity to speak on behalf of the defendant and shall address the defendant personally and ask him if he wishes to make a statement in his own behalf and to present any information in mitigation of punishment. The attorney for the government shall have an equivalent opportunity to speak to the court.

 

(2) Notification of Right to Appeal. After imposing sentence in a case which has gone to trial on a plea of not guilty, the court shall advise the defendant of his right to appeal and of the right of a person who is unable to pay the cost an appeal to apply for leave to appeal in forma pauperis. There shall be no duty on the court to advise the defendant of any right of appeal after sentence is imposed following a plea of guilty or nolo contendere. If the defendant so requests, the clerk of the court shall prepare and file forthwith a notice of appeal on behalf of the defendant.

 

(b) Judgment.

 

(1) In General. A judgment of conviction shall set forth the plea, the verdict or findings, and the adjudication and sentence. If the defendant is found not guilty or for any other reason is entitled to be discharged, judgment shall be entered accordingly. The judgment shall be signed by the judge and entered by the clerk.

 

(2) Criminal Forfeiture. When a verdict contains a finding of property subject to a criminal forfeiture, the judgment of criminal forfeiture shall authorize the Attorney General to seize the interest or property subject to forfeiture, fixing such terms and conditions as the court shall deem proper.

 

(c) Presentence Investigation.

 

(1) When Made. The probation service of the court shall make a presentence investigation and report to the court before the imposition of sentence or the granting of probation unless, with the permission of the court, the defendant waives a presentence investigation and report, or the court finds that there is in the record information sufficient to enable the meaningful exercise of sentence discretion, and the court explains this finding on the record.

 

The report shall not be submitted to the court or its contents disclosed to anyone unless the defendant has pleaded guilty or nolo contendere or has been found guilty, except that a judge may, with the written consent of the defendant, inspect a presentence report at any time.

 

(2) Report. The report of the presentence investigation shall contain any prior criminal record of the defendant and such information about his characteristics, his financial condition and the circumstances affecting his behavior as may be helpful in imposing sentence or in granting probation or in the correctional treatment of the defendant, and such other information as may be required by the court.

 

(3) Disclosure.

 

(A) Before imposing sentence the court shall upon request permit the defendant, or his counsel if he is so represented, to read the report of the presentence investigation exclusive of any recommendation as to sentence, but not to the extent that in the opinion of the court the report contains diagnostic opinion which might seriously disrupt a program of rehabilitation, sources of information obtained upon a promise of confidentiality, or any other information which, if disclosed, might result in harm, physical or otherwise, to the defendant or other persons; and the court shall afford the defendant or his counsel an opportunity to comment thereon and, at the discretion of the court, to introduce testimony or other information relating to any alleged factual inaccuracy contained in the presentence report.

 

(B) If the court is of the view that there is information in the presentence report which should not be disclosed under subdivision (c)(3)(A) of this rule, the court in lieu of making the report or part thereof available shall state orally or in writing a summary of the factual information contained therein to be relied on in determining sentence, and shall give the defendant or his counsel an opportunity to comment thereon. The statement may be made to the parties in camera.

 

(C) Any material disclosed to the defendant or his counsel shall also be disclosed to the attorney for the government.

 

(D) Any copies of the presentence investigation report made available to the defendant or his counsel and the probation officer immediately following the imposition of sentence or the granting of probation, unless the court, in its discretion otherwise directs.

 

(E) (OMITTED).

 

(d) Withdrawal of Plea of Guilty. A motion to withdraw a plea of guilty or of nolo contendere may be made only before sentence is imposed or imposition of sentence is suspended; but to correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his plea.

 

(e) (OMITTED).

 

(f) (OMITTED).

 

RULE 32.1 (OMITTED).

 

RULE 33.NEW TRIAL. The court on motion of a defendant may grant a new trial to him if required in the interest of justice. If trial was by the court without jury the court on motion of a defendant for a new trial may vacate the judgment if entered, take additional testimony and direct the entry of a new judgment. A motion for a new trial based on the ground of newly discovered evidence may be made only before or within two years after final judgment, but if any appeal is pending the court may grant the motion only on remand of the case. A motion for a new trial based on any other grounds shall be made within 10 days after verdict or finding of guilty.

 

RULE 34.ARREST OF JUDGMENT. The court on motion of a defendant shall arrest judgment if the indictment or information does not charge an offense or if the court was without jurisdiction of the offense charged. The motion in arrest of judgment shall be made within 10 days after verdict or finding of guilty, or after plea of guilty or nolo contendere, or within such further time as the court may fix during the 10-day period.

 

RULE 35.CORRECTION OR REDUCTION OF SENTENCE.

 

(a) Correction of Sentence. The court may correct an illegal sentence at any time and may correct a sentence imposed in an illegal manner within the time provided herein for the reduction of sentence.

 

(b) Reduction of Sentence. The Court may reduce a sentence within 120 days after the sentence is imposed, or within 120 days after receipt by the court of a mandate issued upon affirmance of the judgment or dismissal of the appeal, or within 120 days after entry of any order or judgment of the appellate division denying review of, or having the effect of upholding, a judgment of conviction. The court may also reduce a sentence upon revocation of probation as provided by law. Changing a sentence from a sentence of incarceration to a grant of probation shall constitute a permissible reduction of sentence under this subdivision.

 

RULE 36.CLERICAL MISTAKES. Clerical mistakes in judgments, orders or other parts of the record and errors in the record arising from oversight or omission may be corrected by the court at any time and after such notice, if any, as the court orders.

 

RULE 37. (ABROGATED).

 

RULE 38.STAY OF EXECUTION.

 

(a) Death. A sentence of death shall be stayed if an appeal is taken.

 

(b) Imprisonment. A sentence of imprisonment shall be stayed if an appeal is taken and the defendant is released pending disposition of appeal pursuant to 9(b) ACR.

 

(c) Fine. A sentence to pay a fine or a fine and costs, if an appeal is taken, may be stayed by the trial court or by the appellate division upon such terms as the court deem proper. The court may require the defendant pending appeal to deposit the whole or any part of the fine and costs with the clerk of the court, or to give bond for the payment thereof, or to submit to an examination of assets, and it may make any appropriate order to restrain the defendant from dissipating his assets.

 

(d) Probation. An order placing the defendant on probation may be stayed if an appeal is taken. If not stayed, the court shall specify when the term of probation shall commence. If the order is stayed the court shall fix the terms of the stay.

 

(e) (ABROGATED).

 

(f) (ABROGATED).

 

RULE 39. (ABROGATED).

 

RULE 40. (OMITTED).

 

RULE 41.SEARCH AND SEIZURE.

 

(a) Authority to Issue Warrant. A search warrant authorized by this rule may be issued by a trial court judge or justice of the High Court upon request of an attorney for the government.

 

(b) Property or Persons Which May Be Seized With A Warrant. A warrant may be issued under this rule to search for and seize any (1) property that constitutes evidence of the commission of a criminal offense; or (2) contraband, the fruits of crime, or things otherwise criminally possessed; or (3) property designed or intended for use or which is or has been used as the means of committing a criminal offense; or (4) person for whose arrest there is probable cause, or who is unlawfully restrained.

 

(c) Issuance and Contents.

 

(1) Warrant upon Affidavit. A warrant other than a warrant upon oral testimony under paragraph (2) of this subdivision shall issue only on an affidavit or affidavits sworn to before the district court judge or justice of the High Court and establishing the grounds for issuing the warrant. If the judge or justice is satisfied that grounds for the application exist or that there is probable cause to believe that they exist, he shall issue a warrant identifying the property or persons to be seized and naming or describing the person or place to be searched. The finding of probable cause may be based upon hearsay evidence in whole or in part. Before ruling on a request for a warrant the judge or justice may require the affiant to appear personally and examine under oath the affiant and any witnesses he may produce, provided that such proceeding shall be taken down by a court reporter or recording equipment and made part of the affidavit. The warrant shall be directed to a marshal or police officer of American Samoa. It shall command the officer to search, within a specified period of time not to exceed 10 days, the person or place named for the property or person specified. The warrant shall be served in the daytime, unless the issuing authority, by appropriate provision in the warrant, and for reasonable cause shown, authorizes its execution at times other than daytime. It shall designate a judge or justice to whom it shall be returned.

 

(2) (OMITTED).

 

(d) Execution and Return with Inventory. The officer taking property under the warrant shall give to the person from whom or from whose premises the property was taken a copy of the warrant and a receipt for the property taken or shall leave the copy and receipt at the place from which the property was taken. The return shall be made promptly and shall be accompanied by a written inventory of any property taken. The inventory shall be made in the presence of the applicant for the warrant and the person from whose possession or premises the property was taken, if they are present, or in the presence of at least one credible person other than the applicant for the warrant or the person from whose possession or premises the property was taken, and shall be verified by the officer. The district court judge or justice of the High Court shall upon request deliver a copy of the inventory to the person from whom or from whose premises the property was taken and to the applicant for the warrant.

 

(e) Motion for Return of Property. A person aggrieved by an unlawful search and seizure may move in the trial court for the return of the property on the ground that he is entitled to lawful possession of the property which was illegally seized. The judge shall receive evidence on any issue of fact necessary to the decision of the motion. If the motion is granted the property shall be restored and it shall not be admissible in evidence at any hearing or trial.

 

(f) If a motion for return of property is made or comes on for hearing after an information is filed, it shall be treated also as a motion to suppress under 12 TCRCrP.

 

(g) Return of Papers to Clerk. The judge or justice before whom the warrant is returned shall attach to the warrant a copy of the return, inventory and all other papers in connection therewith and shall file them with the clerk of court.

 

(h) Scope and Definition. This rule does not modify any act, inconsistent with it, regulating search, seizure and the issuances and execution of search warrants in circumstances for which special provision is made. The "property" is used in this rule to include documents, books, papers and any other tangible objects. The term "daytime" is used in this rule to mean the hours from 6:00 a.m. to 8:00 p.m. according to local time.

 

RULE 42. (OMITTED).

 

RULE 43.PRESENCE OF THE DEFENDANT.

 

(a) Presence Required. The defendant shall be present at the arraignment, at the time of the plea, at every stage of the trial including the impanelling of the jury and the return of the verdict, and at the imposition of sentence, except as otherwise provided by this rule.

 

(b) Continued Presence Not Required. The further 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 his right to be present whenever a defendant, initially present,

 

(1) voluntarily absents himself after the trial has commenced (whether or not he has been informed by the court of his obligation to remain during the trial), or

 

(2) after being warned by the court that disruptive conduct will cause him to be removed from the courtroom, persists in conduct which is such as to justify his being excluded from the courtroom.

 

(c) Presence Not Required. A defendant need not be present in the following situations:

 

(1) A corporation may appear by counsel for all purposes.

 

(2) In prosecutions for offenses punishable by fine or by imprisonment for not more than one year or both, the court, with the written consent of the defendant, may permit arraignment, plea, trial, and imposition of sentence in the defendant's absence.

 

(3) At a conference or argument upon a question of law.

 

(4) At a reduction of sentence under 35 TCRCrP.

 

RULE 44.RIGHT TO AND ASSIGNMENT OF COUNSEL.

 

(a) Right to Assigned Counsel. Every defendant who is unable to obtain counsel shall be entitled to have counsel assigned to represent him at every stage of the proceedings from his initial appearance before the district court through appeal, unless he waives such appointment.

 

(b) (OMITTED).

 

RULE 45.TIME.

 

(a) Computation. In computing any period of time the day of the act or event from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday, a Sunday or a legal holiday, in which event the period runs until the end of the next day which is not a Saturday, a Sunday, or a legal holiday. When a period of time prescribed or allowed is less than 7 days, intermediate Saturdays, Sundays and legal holidays shall be excluded in the computation. As used in these rules, "legal holiday" includes New Year's Day, Washington's Birthday, Flag Day, Memorial Day, Independence Day, Labor Day, Columbus Day, Veterans Day, Thanksgiving Day, Christmas Day, and any other day appointed as a holiday by the Governor or the Fono of American Samoa.

 

(b) Enlargement. When an act is required or allowed to be done at or within a specified time, the court for cause shown may at any time in its discretion (1) with or without motion or notice, order the period enlarged if request therefor is made before the expiration of the period originally prescribed or as extended y a previous order or (2) upon motion made after the expiration of the specified period permit the act to be done if the failure to act was the result of excusable neglect; but the court may not extend the time for taking any action under 29, 33, 34 and 35 TCRCrP except to the extent and under the conditions stated in them.

 

(c) (RESCINDED).

 

(d) For Motions; Affidavits. A written motion, other than one which may be heard ex parte, and notice of the hearing thereof shall be served not later than 5 days before the time specified for the hearing unless a different period is fixed by rule or order of the court. For cause shown such an order may be made on ex parte application. When a motion is supported by affidavit, the affidavit shall be served with the motion; and opposing affidavits may be served not less than 3 day before the hearing unless the court permits them to be served at a later time.

 

(e) Additional Time After Service by Mail. Whenever a party has the right or is required to do an act within a prescribed period after the service of a notice or other paper is served upon him by mail, 6 days shall be added to the prescribed period.

 

RULE 46.RELEASE FROM CUSTODY.

 

(a) Release Prior to Trial. Eligibility for release prior to trial shall be governed by Art. 1, Sec. 6 of the Revised Constitution of American Samoa. Subject to the constitutional restraints, a defendant may be released on his own recognizance at the discretion of the trial judge.

 

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

 

(c) Pending Sentence and Notice of Appeal. Eligibility for release pending sentence or pending notice of appeal or expiration of the time allowed for filing notice of appeal shall be up to the discretion of the court and upon such terms and conditions as it shall impose. 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.

 

(d) Justification of Sureties. Every surety, except a corporate surety which is approved as provided by law, shall justify by affidavit and may be required to describe in the affidavit the property by which he proposes to justify and the encumbrances thereon, the number and amount of other bonds and undertakings for bail entered into by him and remaining undischarged and all his other liabilities. No bond shall be approved unless the surety thereon appears to be qualified.

 

(e) Forfeiture.

 

(1) Declaration. If there is a breach of condition of a bond, the district court or High Court shall declare a forfeiture of the bail.

 

(2) Setting Aside. The court may direct that a forfeiture be set aside, upon such conditions as the court may impose, if it appears that justice does not require the enforcement of the forfeiture.

 

(3) Enforcement. When a forfeiture has not been set aside, the court shall on motion enter a judgment of default and execution may issue thereon. By entering into a bond the obligors submit to the jurisdiction of the district court or High Court and irrevocably appoint the clerk of court as their agent upon whom any papers affecting their liability may be served. Their liability may be enforced on motion without the necessity of an independent action. The motion and such notice of the motion as the court prescribes may be served on the clerk of court, who shall forthwith mail copies to the obligor to their last known addresses.

 

(4) Remission. After entry of such judgment, the court may remit it in whole or in part under the conditions applying to the setting aside of forfeiture in paragraph (2) of this subdivision.

 

(f) Exoneration. When the condition of the bond has been satisfied or the forfeiture thereof has been set aside or remitted, the court shall exonerate the obligor and release any bail. A surety may be exonerated by a deposit of cash in the amount of the bond or by a timely surrender of the defendant into custody.

 

(g) Supervision of Detention Pending Trial. The court shall exercise supervision over the detention of defendants and witnesses pending trial for the purpose of eliminating all unnecessary detention. The attorney for the government shall make a biweekly report to the court listing each defendant and witness who has been held in custody pending indictment, arraignment or trial for a period in excess of ten days. As to each witness so listed the attorney for the government shall make a statement of the reasons why such witness should not be released with or without the taking of his deposition pursuant to 15(a) TCRCrP. As to each defendant so listed the attorney for the government shall make a statement of the reasons why the defendant is still held in custody.

 

RULE 47.MOTIONS.

 

An application to the court for an order shall be by motion. A motion other than one made during a trial or hearing shall be in writing unless the court permits it to be made orally. It shall state the grounds upon which it is made and shall set forth the relief or order sought. It may be supported by affidavit.

 

RULE 48.DISMISSAL.

 

(a) By Attorney For Government. The Attorney General may by leave of court file a dismissal of an information or complaint and the prosecution shall thereupon terminate. Such a dismissal may not be filed during the trial without the consent of the defendant.

 

(b) By Court. If there is unnecessary delay in filing an information against a defendant who has been held to answer to the district court or High Court or if there is unnecessary delay in bringing a defendant to trial, the court may dismiss the information or complaint.

 

RULE 49.SERVICE AND FILING OF PAPERS.

 

(a) Service: When Required. Written motions other than those which are heard ex parte, written notices, designations of record on appeal and similar papers shall be served upon each of the parties.

 

(b) Service: How Made. Whenever under these rules or by an order of the court service is required or permitted to be made upon a party represented by an attorney, the service shall be made upon the attorney unless service upon the party himself is ordered by the court. Service upon the attorney or upon a party shall be made in the manner provided in civil actions.

 

(c) Notice of Orders. Immediately upon the entry of an order made on a written motion subsequent to arraignment the clerk shall place the order in the court file of each party and shall make a note in the docket. Lack of notice of the entry by the clerk does not affect the time to appeal or relieve or authorize the court to relieve a party for failure to appeal within the time allowed, except as permitted by Rule 4(b) of the American Samoa Rules of Appellate Procedure.

 

(d) Filing. Papers required to be served shall be filed with the court. Papers shall be filed in the manner provided in civil actions.

 

RULE 50. (OMITTED).

 

RULE 51.EXCEPTIONS UNNECESSARY.

 

Exceptions to rulings or orders of the court are unnecessary and for all purposes for which an exception has heretofore been necessary it is sufficient that a party, at the time the ruling or order of the court is made or sought, makes known to the court the action which he desires the court to take and the grounds therefor; but if a party has no opportunity to object to a ruling or order, the absence of an objection does not thereafter prejudice him.

 

RULE 52.HARMLESS ERROR AND PLAIN ERROR.

 

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

 

(b) Plain Error. Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.

 

RULES 53-60. (OMITTED).