At time United States assumed control of American Samoa, treaty was in effect that applied laws of any nation signing treaty which judge considered appropriate for criminal offenses, and customs of Samoa were applied with respect to natives. American Samoa v. Willis, 1 A.S.R. 635.

Conviction may stand even though no person actually witnessed crime. American Samoa v. Sale, 2 A.S.R. 635.

Clerk of Court has no authority to excuse person from standing trial for criminal offense. Government v. Si’u, 3 A.S.R. 479.

Order issued in open court is binding from the moment it is announced, whether or not it is ever reduced to writing. American Samoa Government v. Laumoli, 12 A.S.R.2d 111.

A.S.C.A. § 46.0501 does not make 18 U.S.C.S. § 3144 applicable to the Territory. A.S.C.A. § 46.0501 brings our criminal procedure into conformance with the Federal Rules of Criminal Procedure, not with every rule of criminal procedure applicable in the federal courts. The term “Federal Rules of Criminal Procedure” refers specifically to the 68 rules, which go by that title. 18 U.S.C.S. § 3144, while a rule of criminal procedure applicable to federal courts, is not part of the Federal Rules of Criminal Procedure. In Re Proceedings to Compel Attendance of May Fitiausi, 29 A.S.R.2d 71.

Criminal procedure in the High Court must conform as nearly as practical to the Federal Rules of Criminal Procedure. The High Court will consider interpretations of the federal rules by federal courts to be highly persuasive in the interpretation of the local rules, which mirror the federal rules. American Samoa Gov’t v. Lafoga, 30 A.S.R.2d 110.

§ 1(2) —Jurisdiction

Fact there is no indictment by grand jury nor jury trial in American Samoa does not deprive High Court of jurisdiction over criminal matters arising herein. American Samoa v. Willis, 1 A.S.R. 635.

Court acquires personal jurisdiction in criminal case if defendant is personally served with summons while in American Samoa. Government v. Tobu Boeki, K.K., 4 A.S.R. 843.

Court acquires personal jurisdiction in criminal case against foreign corporation if it has local registered agent or is “doing business” in American Samoa. Government v. Tobu Boeki, K.K., 4 A.S.R. 843.

Unlike federal rules of criminal procedure promulgated under the authority of Congress and binding on federal courts to the same extent as statutes, territorial rules are made by the Court itself, so that a time limit provided by territorial rule is not as obviously jurisdictional as a similar limit provided by federal rule. Rev’d Const. Am. Samoa art. III § 2; A.S.C.A. § 3.1002(c). American Samoa Gov’t v. Tile, 8 A.S.R.2d 120.

Because the High Court’s rules were promulgated solely on its own authority, they must give way to territorial statutes defining the court’s jurisdiction, unless the statutes themselves are unconstitutional. American Samoa Gov’t v. Falefatu, 17 A.S.R.2d 114.

A change of venue for a criminal prosecution is not available under the Trial Court Rules of Criminal Procedure. A.S.G. v. Fruean, 31 A.S.R.2d 1.

There is not undue prejudice to a criminal defendant so great as to deny a defendant a fair and impartial trial when newspaper accounts of an assault and the victim’s death were largely exculpatory and the government has stipulated that the defendants did not cause the victim’s death. A.S.G. v. Fruean, 31 A.S.R.2d 1.

There is no other venue available for ASG’s felony prosecutions other than the High Court of American Samoa. A.S.G. v. Pu`aa, 31 A.S.R.2d 73.

§ 1(3) —Prosecutorial Discretion

The exercise of prosecutorial discretion cannot be challenged by one who himself is neither prosecuted nor threatened with prosecution. Fetui v. Am. Samoa Gov’t, 2 A.S.R.2d 52 (Trial Div. 1985).

Court will not interfere with the exercise of prosecutorial discretion unless it is shown that such discretion was unconstitutionally vested in the prosecutor or that it has been abused or exercised in an arbitrary, capricious, or discriminatory manner. American Samoa Gov’t v. Julio, 9 A.S.R.2d 128.

§ 2 Criminal Complaints, Indictments, and Bills of Information

§ 2(1) —Generally

Court rule providing for criminal prosecution by petition contravenes statute and usurps discretionary function of executive branch, thereby violating constitutionally mandated separation of powers. Lutali v. Pereira, 1 A.S.R.2d 58 (Trial Div. 1981).

Although power to govern derives from Congress, government of American Samoa possesses characteristics of a state and local government, and may therefore prosecute felonies by information rather than indictment. Am. Samoa Gov’t v. Simona, 1 A.S.R.2d 91 (Trial Div. 1983).

Indictment by grand jury is not a fundamental right and is not required in American Samoa. Simona v. Am. Samoa Gov’t, 2 A.S.R.2d 9 (App. Div. 1984).

Cases in other jurisdictions taking an extremely narrow view of the power of courts to construe indictments, motivated by a vestigial regard for the technical rules of common law pleading or by concern for the separation of powers between grand juries and prosecutors, are not helpful in determining the validity of a criminal information in a territory that does not have grand juries and in which pleadings are to be construed in order to do justice. Rule 7, Trial Court Rules of Criminal Procedure. American Samoa Gov’t v. Tauasosi, 3 A.S.R.2d 66.

Even if an arrest was illegal, a bill of information setting forth criminal charges is not necessarily void. U.S. Const. Amend. IV. American Samoa Gov’t v. Meleisea, 24 A.S.R.2d 32.

Even if an arrest was illegal, a bill of information setting forth criminal charges is not necessarily void. U.S. Const. Amend. IV. American Samoa Gov’t v. Tagaloa, 24 A.S.R.2d 37.

Under T.C.R.Cr.P. 8(b), multiple defendants may be charged in a single information where it is alleged that different acts were part of a scheme constituting forgery, and joinder is proper if all of the offenses charged arose out of the same series of transactions. American Samoa Gov’t v. Afuola, 4 A.S.R.3d 84 (Trial Div. 2000).

Under the Rules of Criminal Procedure, an information is required to set forth a plain, concise, and definite written statement of the essential facts constituting the offense charged. Am. Samoa Gov’t v. Wang, 6 A.S.R.3d 212 (Trial Div. 2002).

§ 2(2) —Indictments

Provisions of Article V and VI of amendments to Constitution of United States relating to right to be tried on indictment returned by grand jury and jury of peers do not apply to American Samoa because form of government was established to suit conditions of locality, and justice cannot be administered according to form in United States. American Samoa v. Willis, 1 A.S.R. 635.

Indictment by grand jury is not a fundamental right and is not required in American Samoa. Simona v. Am. Samoa Gov’t, 2 A.S.R.2d 9 (App. Div. 1984).

§ 2(3) —Amending an Information

An information may generally be amended in form or substance at any time prior to verdict as long as the substantial rights of a defendant are not prejudiced. T.C.R.Cr.P. 8. American Samoa Gov’t v. Bryce, 27 A.S.R.2d 1.

An amendment to an information will be allowed as long as the defendant is well apprised. T.C.R.Cr.P. 8. American Samoa Gov’t v. Bryce, 27 A.S.R.2d 1.

T.C.R.Cr.P. 7(e) grants the Court discretion to permit the prosecution to amend an information if no additional or different offense is charged. American Samoa Gov’t v. Afuola, 4 A.S.R.3d 110 (Trial Div. 2000).

If a criminal defendant has had sufficient time to prepare for the amended information such that he is not considered to be taken by surprise, he is not prejudiced and the amendment is permitted. Am. Samoa Gov’t v. Toilolo, 6 A.S.R.3d 106 (Trial Div. 2002).

A key to determining whether a proposed change in an information will result in prejudice to the criminal defendant is consistency in the underlying factual accusations. Am. Samoa Gov’t v. Toilolo, 6 A.S.R.3d 106 (Trial Div. 2002).

Where original information included factual allegations of all the elements of the additional charge in amended information, where defendants were provided three months to prepare for trial, and where defendants failed to show prejudice from new charge, aside from greater probability of conviction, amendment to information was proper. Am. Samoa Gov’t v. Toilolo, 6 A.S.R.3d 106 (Trial Div. 2002).

§ 2(4) —Sufficiency of Information

The sufficiency of a criminal information is to be judged by whether it states the essential facts of the alleged crime in a way that gives the defendant fair notice of what he is being charged with. Rule 7, Trial Court Rules of Criminal Procedure. American Samoa Gov’t v. Tauasosi, 3 A.S.R.2d 66.

Language in an information alleging that defendant “fired a shotgun toward certain people” implicitly charged that defendant intended the probable results of such an act. Rule 7, Trial Court Rules of Criminal Procedure. American Samoa Gov’t v. Tauasosi, 3 A.S.R.2d 66.

Where a criminal information was otherwise sufficient to charge intentional second degree murder, and where throughout the proceedings the prosecution had obviously been attempting to prove that defendant had acted intentionally and there had been no objection from defense counsel, the inclusion of the word “recklessly” in a part of the information separate from the description of the alleged conduct was mere surplusage rather than an essential limiting term in the information. American Samoa Gov’t v. Tauasosi, 3 A.S.R.2d 66.

Criminal charge using statutory language is permissible providing the statute sets forth fully, directly and expressly, without any uncertainty or ambiguity, all the elements needed to comprise the offense intended to be punished. T.C.R.Cr.P. 7(c). American Samoa Gov’t v. Afamasaga, 17 A.S.R.2d 145.

Though a bill of information must plainly, concisely, and definitely state in writing the essential facts constituting the offense charged, it need not set forth facts and evidentiary details needed to establish each element of the charged offense. T.C.R.Cr.P. 7(c). American Samoa Gov’t v. Afamasaga, 17 A.S.R.2d 145.

Bill of information charging sodomy without specifying which of the various sexual acts constituting an element of the offense was alleged, sufficiently informed defendant of the nature of the charges to enable him to prepare his defense and did not subject him to double jeopardy since he could refer to the entire record of the preliminary examination, not just the bill of information, when claiming double jeopardy from a subsequent prosecution. American Samoa Gov’t v. Afamasaga, 17 A.S.R.2d 145.

A bill of information using the language of the criminal statute is sufficient as long as the statute sets forth all of the elements constituting the offence. American Samoa Gov’t v. Luki, 21 A.S.R.2d 84.

Intended to give a criminal defendant adequate notice of the charge against him, a bill of information is made with sufficient specificity if it fully and unambiguously sets forth the elements constituting the offense. American Samoa Gov’t v. Schuster, 24 A.S.R.2d 15.

A bill of particulars is not required as long as a defendant has enough information to adequately prepare a defense, avoid surprise at trial, and protect him against a second prosecution for an inadequately described offense; as such, a defendant is required to look at all of the government’s sources and not simply the information formally charging him with the crime. American Samoa Gov’t v. Wilson, 24 A.S.R.2d 26.

Merely reciting the statutory language of the offense does not satisfy the requirement of T.C.R.Cr.P. 7(c)(1) that the information contain a “plain, concise and definite written statement of the essential facts constituting the offense charged.” American Samoa Gov’t v. Loau, 4 A.S.R.3d 142 (Trial Div. 2000).

Where circumstances indicated that there was a victim of crime, and a weapon used in its perpetration, government was obliged to identify both in its information. American Samoa Gov’t v. Loau, 4 A.S.R.3d 142 (Trial Div. 2000).

Failure of government to identify victim of assault in its information exposed defendant to double jeopardy. American Samoa Gov’t v. Loau, 4 A.S.R.3d 142 (Trial Div. 2000).

Failure of government to identify weapon used in assault in its information prejudiced defendant’s ability to prepare for trial. American Samoa Gov’t v. Loau, 4 A.S.R.3d 142 (Trial Div. 2000).

Where government had not pled information with sufficient specificity, Court opted to allow Defendant to move for Bill of Particulars and warn government of future dismissal rather than to grant Defendant’s request for immediate dismissal. American Samoa Gov’t v. Loau, 4 A.S.R.3d 142 (Trial Div. 2000).

T.C.R.Cr.P. 7(c)(1) requires a definite written statement of the essential facts constituting the offense charged in a criminal information, and where a criminal information recites the statutory language as to an offense, and asserts a date of the offense, but does not name the victim, it does not sufficiently put the defendant on notice, and potentially subjects him to multiple prosecutions. American Samoa Gov’t v. Faumuina, 4 A.S.R.3d 196 (Trial Div. 2000).

Dismissal of a defective criminal information is not warranted where it can be cured in response to a bill of particulars as to the identity of the victim and the specifics of the actions constituting the offense. American Samoa Gov’t v. Faumuina, 4 A.S.R.3d 196 (Trial Div. 2000).

An information is to be measured by two criteria: 1) whether the facts stated show the essential elements of the offense charged so as to enable a defendant to prepare his or her defense; and 2) whether the facts alleged are sufficient to ensure against double jeopardy in a second prosecution. Am. Samoa Gov’t v. Wang, 6 A.S.R.3d 212 (Trial Div. 2002).

A continuing offense may be charged without specifying individual acts as a basis for criminal conduct. Am. Samoa Gov’t v. Wang, 6 A.S.R.3d 212 (Trial Div. 2002).

The offenses of Promoting Prostitution and Abuse of Child, when defendant alleged to have encouraged prostitution, are continuing course of conduct offenses that can be charged without specifying individual acts. Am. Samoa Gov’t v. Wang, 6 A.S.R.3d 212 (Trial Div. 2002).

Where defendant alleged to committed offenses of Promoting Prostitution and Abuse of Child by encouraging child to engage in prostitution, jury did not need to agree that victims had committed a particular act of prostitution in order to convict. Am. Samoa Gov’t v. Wang, 6 A.S.R.3d 212 (Trial Div. 2002).

An information using only statutory language is permissible as long as the statute sets forth fully, directly, and expressly, without any uncertainty or ambiguity, all the elements necessary to constitute the offense intended to be punished. Am. Samoa Gov’t v. Wang, 6 A.S.R.3d 212 (Trial Div. 2002).

A criminal defendant is expected to look at all of the sources provided by the government and not simply at the information formally charging him with the crime. Am. Samoa Gov’t v. Wang, 6 A.S.R.3d 212 (Trial Div. 2002).

§ 2(5) —Arguments Inconsistent with Information

Where prosecution explicitly and unequivocally argued that the defendant should be found guilty of intentional second-degree murder, and defense counsel responded by contesting the charge on the merits rather than by asserting its inconsistency with the information, defense counsel had waived any variance between the information and a conviction of intentional second degree murder or any lesser-included offense. American Samoa Gov’t v. Tauasosi, 3 A.S.R.2d 66.

§ 2(6) —Bill of Particulars

A bill of particulars may be amended at any time subject to such conditions as justice requires, pursuant to T.C.R.Cr.P. Rule 7(f). American Samoa Gov’t v. Tali, 25 A.S.R.2d 21.

The bill of particulars, an ancient aid to pleading and procedure, has survived in the federal rules of procedure for criminal cases, but not for civil cases. It provides a basis upon which the defense can formulate strategy when the charges, though legally sufficient, are vaguely stated. American Samoa Gov’t v. Tali, 25 A.S.R.2d 21.

The criteria for sufficiency of a bill of particulars is whether the defendant has been fully informed of the charges well in advance of trial, and has been afforded ample opportunity to prepare his defense. To be fully informed of the charges means that the bill of particulars sufficiently apprises the defendant of the theory of the charge against him, and of the general character of the evidence sustaining the charge. American Samoa Gov’t v. Tali, 25 A.S.R.2d 21.

§ 2(7) —Probable Cause Determinations

No criminal information can be filed in the High Court without a prior judicial determination that probable cause exists to believe the defendant committed the crime with which he is charged. T.C.R.C.P. 5.1. Galea`i v. Atofau, 16 A.S.R.2d 76.

§ 2(8) —Multiplicitous Charging

Government’s attempt to charge both forgery and conspiracy for a single forgery constituted multiplicitous charging and was not allowed. American Samoa Gov’t v. Afuola, 4 A.S.R.3d 110 (Trial Div. 2000).

The proper remedy for a multiplicitous information is an election or consolidation of the offending counts, and dismissal of the surplus counts. American Samoa Gov’t v. Afuola, 4 A.S.R.3d 110 (Trial Div. 2000).

Where the Government improperly charges multiplicitous counts in its information, the entire indictment need not be dismissed, but leave should be granted to amend the information. American Samoa Gov’t v. Afuola, 4 A.S.R.3d 110 (Trial Div. 2000)

§ 2(9) —Pro Se Pleadings

In examining pro se pleadings, the court does so without regard to the technical niceties demanded of attorney-drafted pleadings. Siaumau v. Am. Samoa Gov’t, 7 A.S.R.3d 130 (Trial Div. 2003).

§ 3 Pleas

§ 3(1) —Generally

If a defendant wishes to limit the scope of his civil liability without unreservedly admitting his guilt, he can seek to enter a plea of nolo contendere, although the government or the Court might reject such a plea bargain, or the Court might accept the plea and impose the maximum legal sentence. Galea`i v. Atofau, 16 A.S.R.2d 76.

A plea of nolo contendere is recognized as having no effect beyond the action in which it is entered and no evidentiary value as an admission of guilt. American Samoa Gov’t v. Solaita, 27 A.S.R.2d 9.

A nolo contendere plea is provided for the purpose of facilitating compromise in the plea bargaining process by allowing the accused to avoid an admission of guilt and the attendant evidentiary impact of that admission in potential future proceedings. American Samoa Gov’t v. Solaita, 27 A.S.R.2d 9.

The High Court generally rejects plea agreements under T.C.R.Cr. P. 11 (e)(1)(C) that remove the court’s discretion in sentencing except in very rare occasions where the interests of justice were found to be better served by their acceptance. American Samoa Gov’t v. Masaniai, 28 A.S.R.2d 7.

A plea agreement that does not state a disposition allowable under applicable law is invalid. The Territory’s criminal law has been codified, so the fact that a disposition is not disallowed does not make it available to the sentencing court. A.S.C.A. §§ 46.3102-3104. American Samoa Gov’t v. Nofoagatotoa, 30 A.S.R.2d 20.

There is only one exception to the general requirement that the court must deal with criminal offenders as proscribed in Chapter 19 of the Criminal Justice Act (A.S.C.A. § 46.1901 et seq.). This exception provides for the option of deferred proceedings, upon a plea of guilt or finding of guilt, in the context of a possession of a controlled substance charge, under Title 13. A.S.C.A. § 13.1024. There is no parallel provision for deferred proceedings in the context of assault related prosecutions.American Samoa Gov’t v. Nofoagatotoa, 30 A.S.R.2d 20.

Where prisoner alleged that plea agreement entered was not one he had agreed to and that instead of pleading guilty to Counts I and VI, he had been forced to plea to counts I, II, and V, court would not address the illegality of his punishment under counts II and V as prisoner had not yet begun serving those sentences. Siaumau v. Am. Samoa Gov’t, 7 A.S.R.3d 130 (Trial Div. 2003).

§ 3(2) —Court’s Duties

When criminal defendant has agreed to plead guilty in exchange for agreement by prosecutor to request a particular sentence, court must specifically warn defendant that prosecutor’s recommendation is not binding on the court and that he will have no right to withdraw his guilty plea if the court imposes a harsher sentence. Rule 11(e)(2), Trial Court Rules of Criminal Procedure. Uiliata v. American Samoa Gov’t, 3 A.S.R.2d 102.

§ 3(3) —Sufficient Factual Basis

To satisfy rule requiring court to find a factual basis for accepting a guilty plea, the sentencing judge must develop a record of that basis, for example by having the accused describe his criminal conduct, or by asking the defendant whether he understands the charges against him and whether he committed the acts charged in the indictment. T.C.R.Cr.P. Rule 11(f). Suisala v. Moaali’itele, 6 A.S.R.2d 15.

Judicial assessment of factual basis for accepting a guilty plea may be made at any time prior to judgment and sentencing and may be based on any evidence sufficiently articulated in the record. T.C.R.Cr.P. Rule 11(f). Suisala v. Moaali’itele, 6 A.S.R.2d 15.

Difference between defendant’s testimony and prosecution evidence did not preclude court from finding sufficient factual basis for accepting guilty plea when aggregation of evidence fully justified acceptance of plea. Suisala v. Moaali’itele, 6 A.S.R.2d 15.

§ 3(4) —Voluntarily Made

The fear of receiving a greater sentence does not negate the voluntariness of a plea. American Samoa Gov’t v. Pearson, 4 A.S.R.3d 56 (Trial Div. 2000).

A guilty plea is valid only if it is voluntarily and intelligently made. American Samoa Gov’t v. Pearson, 4 A.S.R.3d 56 (Trial Div. 2000).

A guilty plea is voluntarily and intelligently made if it is done with sufficient awareness of the relevant circumstances and likely consequences. American Samoa Gov’t v. Pearson, 4 A.S.R.3d 56 (Trial Div. 2000).

§ 3(5) —Interpretation of Plea Agreements

Where prosecutor and defendant differed over whether waiver of preliminary hearing alone or whether waiver and plea to third case were consideration for dismissal of first two cases, dismissal of two cases in exchange for the waiver was unlikely and therefore agreement properly construed in government’s favor. American Samoa Gov’t v. Felise, 1 A.S.R.3d 171 (Trial Div. 1997).

Despite differing interpretations of agreement, neither interpretation specifically prohibited prosecutor from presenting facts of two alleged escapes as basis for probation revocation in other, unrelated case. Therefore, prosecutor did not breach agreement with defendant. American Samoa Gov’t v. Felise, 1 A.S.R.3d 171 (Trial Div. 1997).

In determining the scope of a plea agreement, the Court looks to the reasonable understanding of the parties. American Samoa Gov’t v. Pearson, 4 A.S.R.3d 56 (Trial Div. 2000).

§ 3(6) —Breach of Plea Agreements

For a plea agreement to be valid, the government must honor its plea bargain with the defendant. American Samoa Gov’t v. Pearson, 4 A.S.R.3d 56 (Trial Div. 2000).

Where government had promised not to recommend any specific sentence beyond what was recommended by the probation officer, and then, when probation officer made no recommendation, advocated the maximum sentence for two counts, to run consecutively, prosecutor breached promise that was part of plea agreement. American Samoa Gov’t v. Pearson, 4 A.S.R.3d 56 (Trial Div. 2000).

It is irrelevant whether a breach of the plea agreement is intentional or not, it is a breach nonetheless. American Samoa Gov’t v. Pearson, 4 A.S.R.3d 56 (Trial Div. 2000).

There is no such thing as harmless error in sentencing when a prosecutor has breached a plea agreement. American Samoa Gov’t v. Pearson, 4 A.S.R.3d 56 (Trial Div. 2000).

The proper remedy for breach of a promise to refrain from making a sentencing recommendation is resentencing before judges different than those who imposed the sentence. American Samoa Gov’t v. Pearson, 4 A.S.R.3d 56 (Trial Div. 2000).

Where defendant’s sentence had been vacated and he had received new date for sentencing by different judges, he nonetheless was not entitled reasonable bail prior to the new sentencing hearing based on his guilty pleas and previous attempt to escape the territory. American Samoa Gov’t v. Pearson, 4 A.S.R.3d 56 (Trial Div. 2000).

§ 3(7) —Withdrawal of Pleas

RESERVED

§ 4 Parties & Procedure

§ 4(1) —Bifurcated Proceedings

During the first phase of a bifurcated criminal trial involving the defense of diminished mental capacity, the court limited the evidence to whether the defendant is or would be guilty, assuming the absence of any mental disease or defect such as would render him incapable of understanding the difference between right and wrong, incapable of conforming his conduct to such a standard, or otherwise incapable of having any requisite mental element of the crimes charged or of any lesser-included offenses. A.S.C.A. §§ 46.1301-46.1302. American Samoa Gov’t v. Taylor, 19 A.S.R.2d 99.

During the first phase of a bifurcated criminal trial involving the defense of diminished mental capacity, though necessarily concerned with the defendant’s thoughts relevant to the charged offenses, the court limited both parties from addressing such questions by expert testimony from psychiatrists or psychologists or by other evidence calculated to show that defendant did or not have a mental disease or defect. A.S.C.A. §§ 46.1301-46.1302, 46.1304. American Samoa Gov’t v. Taylor, 19 A.S.R.2d 99.

During the “guilt” phase of a bifurcated criminal trial, the government may not make any use of statements made by the defendant to the government’s expert witness or of any evidence discovered as a result of such statements that would not ultimately have been discovered had the statements not been made, unless the defendant put a fact at issue which could only be effectively addressed by the otherwise-inadmissible evidence and if required in the interest of justice. A.S.C.A. §§ 46.1301-46.1302, 46.1304. American Samoa Gov’t v. Taylor, 19 A.S.R.2d 99.

If the defendant is found guilty of one or more crimes in the first phase of a bifurcated criminal trial involving the defense of diminished mental capacity, the trial will proceed to the second stage, during which the parties may present evidence on whether the defendant had a mental disease or defect which would either support an insanity defense or tend to negate the existence of any requisite mental elements of the crime or crimes. A.S.C.A. §§ 46.1301-46.1302. American Samoa Gov’t v. Taylor, 19 A.S.R.2d 99.

During the second phase of a bifurcated criminal trial involving the defense of diminished mental capacity, the government may use evidence obtained during its expert’s examination of the defendant or as a result of such evidence, including but not limited to statements made by the defendant to the expert. A.S.C.A. §§ 46.1301-46.1302, 46.1304. American Samoa Gov’t v. Taylor, 19 A.S.R.2d 99.

§ 4(2) —Severance of Charges or Defendants

The decision to sever properly joined defendants is at the trial court’s discretion and should be granted only if there is a serious risk that a joint trial would compromise a defendant’s specific trial right or prevent the jury from making a reliable judgment about guilt or innocence. T.C.R.Cr.P. 8(b), 14. American Samoa Gov’t v. Fealofa’i, 24 A.S.R.2d 10.

In exercising their discretion as to granting separate trials, most courts refuse to grant a severance despite the anticipated exculpatory testimony of a co-defendant. T.C.R.Cr.P. 14. American Samoa Gov’t v. Schuster, 24 A.S.R.2d 15.

The decision to sever properly joined defendants is at the trial court’s discretion and should be granted only if there is a serious risk that a joint trial would compromise a defendant’s spec ific trial right or prevent the jury from making a reliable judgment about guilt or innocence. T.C.R.Cr.P. 8(b), 14. American Samoa Gov’t v. Wilson, 24 A.S.R.2d 26.

The court will grant severance only if there is a serious risk that a joint trial would compromise a specific trial right to one of the defendants or prevent the jury from making a reliable judgment about guilt or innocence. American Samoa Gov’t v. Fairholt, 28 A.S.R.2d 26.

The trial court abuses its discretion in refusing a severance when the defendant is denied a fair trial because the prejudice in a joint trial cannot be effectively alleviated and thus compels separate trials. A.S.G. v. Pu`aa, 31 A.S.R.2d 73.

The existence of antagonistic defenses among codefendants is cause for severance when the defenses conflict to the point of being irreconcilable and mutually exclusive. A.S.G. v. Pu`aa, 31 A.S.R.2d 73.

The court clearly has a continuing duty at all stages of the trial to grant severance if prejudice does appear. A.S.G. v. Pu`aa, 31 A.S.R.2d 73.

The decision to order severance is left within the sound discretion of the trial court and is reviewed for an abuse of discretion. Pua’a v. American Samoa Gov’t, 3 A.S.R.3d 39 (App. Div. 1999).

The touchstone for determining whether severance is necessary in the context of mutually antagonistic defenses is whether the jury is unable to assess the guilt or innocence of each defendant on an individual and independent basis. Mutually exclusive defenses are said to exist when acquittal of one codefendant would necessarily call for the conviction of the other. Pua’a v. American Samoa Gov’t, 3 A.S.R.3d 39 (App. Div. 1999).

Mere comment by co-defendant’s counsel as to evidence of defendant’s guilt does not constitute his acting as second prosecutor such as to require severance of defendants. Pua’a v. American Samoa Gov’t, 3 A.S.R.3d 39 (App. Div. 1999).

Trial court’s redaction of part of co-defendant’s statement before presentation to the jury does not require severance where portion redacted did not exculpate the defendant. Pua’a v. American Samoa Gov’t, 3 A.S.R.3d 39 (App. Div. 1999).

When right to confrontation problems may be caused by hearsay statements of a codefendant to be used in joint trial, a court must consider remedial action, including severance. American Samoa Gov’t v. Ropati, 3 A.S.R.3d 104 (Trial Div. 1999).

T.C.R.Cr.P. 14 allows severance of defendants for trial if the prejudice to a defendant outweighs the interests of judicial economy where it is shown that a joint trial would compromise a specific trial right or would prevent the jury from making a reliable judgment regarding the guilt or innocence of each defendant; antagonistic defenses are not prejudicial per se. American Samoa Gov’t v. Afuola, 4 A.S.R.3d 110 (Trial Div 2000).

§ 4(3) —Joinder of Offenses

All evidence tending to show guilt is broadly prejudicial, but does not preclude joinder of similar charges under T.C.R.Cr.P. 8. T.C.R.Cr.P. 8. American Samoa Gov’t v. Bryce, 27 A.S.R.2d 1.

Judicial economy and legitimate public interests favor a joinder of all offenses against the accused. American Samoa Gov’t v. Antonio, 28 A.S.R.2d 165.

Whether joinder of offenses or defendants is appropriate is determined on a case by case basis. American Samoa Gov’t v. Antonio, 28 A.S.R.2d 165.

Judicial economy and legitimate public interests favor a joinder of all offenses against the accused. American Samoa Gov’t v. Antonio, 28 A.S.R.2d 165.

Whether joinder of offenses or defendants is appropriate is determined on a case by case basis. American Samoa Gov’t v. Antonio, 28 A.S.R.2d 165.

Counts pertaining to the same defendant under T.C.R.Cr.P. 8(a) may be joined if they are of the same or similar character, even if the offenses are distinct and unrelated. Rule 8(a) recognizes the adverse effect on defendants of having evidence of multiple unrelated crimes presented in one proceeding, but this negative effect is outweighed by gains in trial economy when one of the criteria of the rule are met. For this reason, a defendant must show strong or substantial prejudice flowing from the joinder to demonstrate an abuse of discretion by a trial court. American Samoa Gov’t v. Antonio, 28 A.S.R.2d 165.

All evidence tending to show guilt is broadly prejudicial, but does not preclude joinder of similar charges under T.C.R.Cr.P. 8. T.C.R.Cr.P. 8. American Samoa Gov’t v. Bryce, 27 A.S.R.2d 1.

§ 4(4) —Joinder of Defendants

Whether joinder of offenses or defendants is appropriate is determined on a case by case basis. American Samoa Gov’t v. Antonio, 28 A.S.R.2d 165.

T.C.R.Cr.P. 14 does not give one co-defendant the standing to raise the issue of prejudice due to joinder on behalf of his co-defendants. If one co-defendant’s testimony might prejudice others, it is their decision whether or not to move for a severance. American Samoa Gov’t v. Fairholt, 28 A.S.R.2d 26.

Whether joinder of offenses or defendants is appropriate is determined on a case by case basis. American Samoa Gov’t v. Antonio, 28 A.S.R.2d 165.

The trial court must weigh the prejudice to a defendant by a joint trial against the interests of judicial economy, and factor in the means of lessening the detriment. A.S.G. v. Pu`aa, 31 A.S.R.2d 73.

§ 5 Pre-Trial Matters

§ 5(1) —Generally

While pre‑trial motions in criminal matters should ordinarily be heard in a timely manner, an inflexible policy in this regard is inappropriate. Each situation must be individually considered. American Samoa Gov’t v. Tali, 25 A.S.R.2d 21.

§ 5(2) —Initial Appearance

T.C.R.Cr.P. 5(a) and A.S.C.A. § 46.0807(b) serve different purposes, and are not inconsistent. Rule 5(a) is meant to apply when a person is arrested and it is contemplated that he will be charged with a crime. Section 46.0807(b), on the other hand, contemplates the situation where a person is arrested and needs to be held for some period of time for his own safety or to protect the public safety, but will not be charged with a crime. American Samoa Gov’t v. Lolesio, 30 A.S.R.2d 24.

§ 5(3) —Continuances

In the interest of judicial economy, we place the burden on defendants to give the court sufficient reason to continue trial. American Samoa Gov’t v. Fairholt, 28 A.S.R.2d 26.

§ 5(4) —Competence to Stand Trial

The Court may order a mentally incompetent defendant to be confined for a maximum of 120 days; within 120 days a hearing shall be held to determine whether the defendant has become competent to stand trial and, if not, whether there is a substantial probability that he will attain competency within one year or the maximum term of imprisonment for the crime charged. A.S.C.A. § 46.1305 American Samoa Gov’t v. Taylor, 16 A.S.R.2d 44.

The Court may order a mental examination of a defendant. A.S.C.A. § 46.1303. American Samoa Gov’t v. Taylor, 16 A.S.R.2d 44.

A defendant will be found incompetent to stand trial if he does not have a sufficient and present ability to consult with his lawyer with a reasonable degree of rational understanding or a rational as well as factual understanding of the proceedings against him. American Samoa Gov’t v. Taylor, 18 A.S.R.2d 42.

Although tests to assess general intelligence, capability of abstract thought, and presence of mental disorders had not been specifically “validated” for Samoans or Pacific Islanders as a group, there was little risk that such tests would give false results when applied to a Samoan defendant in determining his competency to stand trial. American Samoa Gov’t v. Taylor, 18 A.S.R.2d 42.

All persons are presumed to be sane or mentally competent unless a preponderance of the evidence indicates otherwise. American Samoa Gov’t v. Sumajestad, 4 A.S.R.3d 232 (Trial Div. 2000).

The court is explicitly authorized by A.S.C.A. § 46.1303 to order psychiatric evaluations of criminal defendants to determine competence to stand trial. American Samoa Gov’t v. Fa’afia, 7 A.S.R.3d 111 (Trial Div. 2003).

In the context of criminal trials, a defendant’s competency to stand trial and his or her presentation of an insanity defense require two different legal standards. American Samoa Gov’t v. Fa’afia, 7 A.S.R.3d 111 (Trial Div. 2003).

Incompetence to stand trial is a factor when determining whether due process requires a court-appointed expert on the issue of insanity. American Samoa Gov’t v. Fa’afia, 7 A.S.R.3d 111 (Trial Div. 2003).

The test for determining whether an individual is competent to stand trial is whether he has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and whether he has a rational as well as factual understanding of the proceedings against him. American Samoa Gov’t v. Fa’afia, 7 A.S.R.3d 111 (Trial Div. 2003).

§ 5(5) —Motions to Suppress Evidence

Provision in American Samoa constitution that requires exclusion of evidence does not entitle Defendant to litigate Fourth Amendment claim before magistrate as well as trial court. Am. Samo Gov’t v. Foma’i, 1 A.S.R.2d 61 (Trial Div. 1982).

Trial judge’s findings of facts at a suppression hearing are reviewed for clear error. Fuimaono v. Am. Samoa Gov’t, 6 A.S.R.3d 67 (App. Div. 2002).

§ 5(6) —Pre-Trial Conferences

RESERVED

§ 5(7) —Notice of Alibi

RESERVED

§ 5(8) —Defense Based on Mental Condition

Under A.S.C.A. § 46.1303, the court may order a psychiatric evaluation on the motion of either party or sua sponte. American Samoa Gov’t v. Sumajestad, 4 A.S.R.3d 232 (Trial Div. 2000).

The scope of the court-ordered mental examination in a criminal case, unless otherwise specified, is to determine whether (1) defendant is competent to stand trial and (2) whether he was sane at the time of the criminal act charged. American Samoa Gov’t v. Sumajestad, 4 A.S.R.3d 232 (Trial Div. 2000).

Defendant’s action in turning himself in to police with a cache of controlled substances in his possession was not conduct in and of itself so bizarre as to constitute a showing sufficient to require the court to order a psychiatric evaluation. American Samoa Gov’t v. Sumajestad, 4 A.S.R.3d 232 (Trial Div. 2000).

Due process requires a court to provide an indigent defendant access to a competent psychiatrist if he shows that his sanity at the time of the offense will be a significant factor at trial. American Samoa Gov’t v. Fa’afia, 7 A.S.R.3d 111 (Trial Div. 2003).

To show that his sanity is truly at issue, a criminal defendant must do more than simply offer undeveloped assertions that the services of a court-appointed psychiatrist would be beneficial, but instead must demonstrate a substantial basis for the defense, presenting specific evidence to demonstrate that his sanity at the time of the offense was questionable. American Samoa Gov’t v. Fa’afia, 7 A.S.R.3d 111 (Trial Div. 2003).

Criminal defendant’s declaration that he intended to use insanity as an affirmative defense, alone, did not suffice to establish a substantial basis for ordering a court-appointed psychiatrist. American Samoa Gov’t v. Fa’afia, 7 A.S.R.3d 111 (Trial Div. 2003).

§ 5(9) —Notice of Intent to Use Evidence

RESERVED

§ 5(10) —Release from Custody

A prisoner already in custody who is merely returned to custody following an escape does not possess the liberty interest protected by T.C.R.Cr.P. 5. American Samoa Gov’t v. Lafoga, 30 A.S.R.2d 110.

The fact that the trial court judge, during in-chambers conference, remarked that if appellant were found guilty, he would be held in custody pending sentencing did not constitute a threat that the judge would penalize appellant for exercising his right to a jury trial. Pule v. American Samoa Gov’t, 1 A.S.R.3d 7 (App. Div. 1997).

First degree assault, possession of a controlled substance, and the production of a controlled substance are “infamous crime[s]” which are not bailable under the Revised Constitution if, a) the presumption is great that the Defendant committed the crime, and, b) releasing the Defendant will constitute a danger to the community. American Samoa Gov’t v. Samana, 1 A.S.R.3d 166 (Trial Div. 1997).

The Revised Constitution requires the Court to determine whether the Defendant is a threat to society, and does not require the heightened standard of proof by “clear and convincing” evidence. American Samoa Gov’t v. Samana, 1 A.S.R.3d 166 (Trial Div. 1997).

18 U.S.C.A. § 3148 (concerning bail) contains no provision specifying its application to American Samoa. American Samoa Gov’t v. Stephens, 2 A.S.R.3d 117 (Trial Div. 1998).

Bail may be revoked if the reviewing court is satisfied that conditions of bail have been violated, and that the defendant is unlikely to abide by conditions of release. American Samoa Gov’t v. Stephens, 2 A.S.R.3d 117 (Trial Div. 1998).

That a person is unlikely to abide by conditions of release may be established by a preponderance of the evidence. American Samoa Gov’t v. Stephens, 2 A.S.R.3d 117 (Trial Div. 1998).

Bail decisions rest on predictions of a defendant’s future behavior, and a defendant’s past violations of a release order barring contact with the complainant shed light on this issue. American Samoa Gov’t v. Stephens, 2 A.S.R.3d 117 (Trial Div. 1998).

A defendant’s submission that he is no longer a danger to the complainant since she has left American Samoa will not be accepted where his intimidation and harassment of her caused her to flee to Boise, Idaho where he has called her at her current place of employment, and his motion for reconsideration of bail revocation will be denied. American Samoa Gov’t v. Stephens, 2 A.S.R.3d 117 (Trial Div. 1998).

A motion to suppress field test results, on the basis that the tests are not scientifically valid, will not be granted where the government asserts that it intends to use them at trial to establish chain of custody and not to prove the nature of the substance; but if the government fails to introduce further forensic evidence as to the nature of the substance, the defendant may renew his motion. American Samoa Gov’t v. Kaplan, 3 A.S.R.3d 86 (Trial Div. 1999).

In deciding whether to grant defendant a bond the court may consider: (1) defendant’s demonstrated propensity for violent behavior toward others, (2) attempts to contact and influence victims, (3) efforts to deceive the court in obtaining release on bond, (4) the nature of the charges and (5) the attendant circumstances as deposed to by the arresting officer in his affidavit in support of the arrest warrant. American Samoa Gov’t v. Siaumau, 4 A.S.R.3d 247 (Trial Div. 2000).

Bond may be denied where it appears defendant not only committed an infamous crime but that he is a danger to the complainant and society if released on bail. American Samoa Gov’t v. Siaumau, 4 A.S.R.3d 247 (Trial Div. 2000).

Bond denied to defendant, charged with multiple assaults, where defendant had demonstrated a propensity for violent behavior toward others, has attempted to contact and influence the victim in protective custody with the government, and presented fraudulent bail documents to the court. American Samoa Gov’t v. Siaumau, 4 A.S.R.3d 247 (Trial Div. 2000).

From the face of the statute, the court does not appear to have discretion in ordering forfeiture of bail if a condition of the bond is violated. T.C.R.Cr.P. 46(e)(1). American Samoa Gov’t v. Togialeoli, 30 A.S.R.2d 130.

Failure to appear for trial and violating travel restrictions are ample justification for forfeiture of a bond. American Samoa Gov’t v. Togialeoli, 30 A.S.R.2d 130.

§ 5(11) —Discovery Generally

Request that government investigate each of its prospective witnesses at criminal trial in order to ascertain whether any witness had a criminal record in another jurisdiction, and inform defense counsel of any such record, was beyond the scope of defendant’s right to discovery. American Samoa Gov’t v. Talamoa, 10 A.S.R.2d14.

Photographs are discoverable, as they do not explicitly nor implicitly fall under the confines of T.C.R.Cr.P. 16(a)(2). American Samoa Gov’t v. Isaia, 29 A.S.R.2d 224.

§ 5(12) —Depositions

The taking of depositions in criminal cases is generally disfavored. Am. Samoa Gov’t v. Tuilagi, 7 A.S.R.3d 61 (Trial Div. 2003).

T.C.R.Cr.P. 15 allows depositions in cases of exceptional circumstances. Am. Samoa Gov’t v. Tuilagi, 7 A.S.R.3d 61 (Trial Div. 2003).

The court looks to several factors in determining whether a party in a criminal case has demonstrated exceptional circumstances warranting the taking of a deposition. Such factors include: (1) whether the desired witness is unavailable to testify at trial, (2) whether the witness’ testimony is material to the moving party’s case and (3) whether the taking of the deposition would cause injustice to the nonmoving party. Am. Samoa Gov’t v. Tuilagi, 7 A.S.R.3d 61 (Trial Div. 2003).

§ 5(13) —Disclosure of Information & Witnesses

Provision of territorial constitution prohibiting deprivation of life, liberty, or property without due process of law prohibits prosecution from suppressing any evidence favorable to an accused where the evidence is material either to guilt or punishment. Rev’d Const. Am. Samoa art. I § 2. American Samoa Gov’t v. Talamoa, 10 A.S.R.2d14.

General request by defense counsel for any evidence in the possession of the prosecution that might tend to exculpate the defendant was within the scope of rule prohibiting suppression of material evidence favorable to the accused. Rev’d Const. Am. Samoa art. I § 2. American Samoa Gov’t v. Talamoa, 10 A.S.R.2d14.

When a defendant makes a request for discovery and disclosure of exculpatory information, the prosecutor’s responses are inadequate when the prosecutor does not make a diligent inquiry from all relevant branches of government, as he or she must answer for the government as a whole. American Samoa Gov’t v. Whitney, 20 A.S.R.2d 46.

In responding to a defendant’s request for discovery and disclosure of exculpatory information, the prosecutor must identify specifically by category the reason for which an item is not produced. American Samoa Gov’t v. Whitney, 20 A.S.R.2d 46.

Once the potential for an unfair trial has been cured, no Brady violation is possible, since Brady is premised on the right to a fair trial. American Samoa Gov’t v. Whitney, 20 A.S.R.2d 46.

A non-capital criminal defendant is not constitutionally or procedurally entitled to a list of the prosecution’s prospective witnesses. U.S. Const. Amend. V; Rev. Const. Am. Samoa Art. I, § 2; T.C.R.Cr.P. 16(a)(2). American Samoa Gov’t v. Wilson, 24 A.S.R.2d 26.

Failure to disclose, or late disclosure of, evidence is prejudicial when the evidence would provide a significant chance of establishing a reasonable doubt that would not otherwise exist. American Samoa Gov’t v. Solaita, 27 A.S.R.2d 9.

To establish a Brady violation, a defendant must demonstrate that the prosecution suppressed evidence that was favorable to the defense or exculpatory and was material. American Samoa Gov’t v. Solaita, 27 A.S.R.2d 9.

The mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish “materiality” in the constitutional sense. American Samoa Gov’t v. Solaita, 27 A.S.R.2d 9.

A defendant must show a “significant chance” that the evidence suppressed by the government would have produced reasonable doubt as to guilt. American Samoa Gov’t v. Solaita, 27 A.S.R.2d 9.

Identities of rebuttal witnesses are not freely discoverable. T.C.R.Cr.P. 16. American Samoa Gov’t v. Solaita, 27 A.S.R.2d 9.

T.C.R.Cr.P. 12(d)(2) implicitly allows a defendant to request that the government provide him with a list of the evidence it intends to use at trial for its case in chief. However, Rule 12(d)(2) is not explicitly mandatory, except for a defendant’s discovery of items listed in T.C.R.Cr.P. 16(a). Nor is a sanction provided. American Samoa Gov’t v. Isaia, 29 A.S.R.2d 224.

The government should normally provide notice of its intention to use evidence at trial, either on its own initiative, see T.C.R.Cr.P. 12(d)(1), or upon the request of defense counsel. See T.C.R.Cr.P. 12(d)(2). In appropriate cases, where the government has failed to comply with a defendant’s request, the court will compel compliance. American Samoa Gov’t v. Isaia, 29 A.S.R.2d 224.

The informer’s privilege is in reality the government’s privilege to withhold from disclosure the identity of persons who furnish information of violations of law to officers charged with enforcement of that law. American Samoa Gov’t v. Samana, 30 A.S.R.2d 1.

The public interest in protecting the flow of information must be balanced against the individual’s right to prepare his defense. Where the disclosure of an informer’s identity is relevant and helpful to the defense of an accused, or is essential to a fair determination of the cause, the privilege must give way. American Samoa Gov’t v. Samana, 30 A.S.R.2d 1.

An in camera hearing to disclose an informant’s identity is not granted merely because a confidential informant was relied on to obtain a search warrant. The confidential informant must also somehow be important to the government’s case in chief. American Samoa Gov’t v. Samana, 30 A.S.R.2d 1.

If a defendant can develop sufficient evidence which puts the existence or reliability of the confidential informant in question, the defendant may move for an in camera hearing on the question of disclosure of the informant’s identity. American Samoa Gov’t v. Samana, 30 A.S.R.2d 1.

The court may hold an in camera hearing with a confidential informant to aid in determining whether an affiant made a false statement knowingly or recklessly when the defendant does not have enough evidence to quash a warrant but has presented evidence in that direction. American Samoa Gov’t v. Samana, 30 A.S.R.2d 37.

Mere categorical denials of a person’s culpability by third parties are not exculpatory such that they must be preserved by the police and are not Brady material. American Samoa Gov’t v. Pearson, 2 A.S.R.3d 63 (Trial Div. 1998).

Although Brady applies to evidence with cross-examination value, evidence may not be proffered where it is known to be untruthful, and such proffer would be professional misconduct by an attorney. American Samoa Gov’t v. Pearson, 2 A.S.R.3d 63 (Trial Div. 1998).

§ 5(14) —Witness Identifications

Eyewitness identification evidence is unreliable and must be suppressed as violating due process if suggestive identification procedures have led to a very substantial likelihood of irreparable misidentification. American Samoa Gov’t v. Afamasaga, 17 A.S.R.2d 145.

Identification obtained by an impermissibly suggestive identification procedure may be admitted if it was nonetheless reliable, considering the totality of the circumstances, since the critical factor determining admission is reliability. American Samoa Gov’t v. Afamasaga, 17 A.S.R.2d 145.

In assessing the reliability of identification evidence obtained by an impermissibly suggestive identification procedure, courts must consider the witness’ chance to view the criminal when the crime occurred, his attentiveness, how accurately he previously described the criminal, how certainly he identified the defendant when confronted with him, and how much time elapsed between the crime and the confrontation, and weigh against such factors the corrupting effect of the suggestive identification. American Samoa Gov’t v. Afamasaga, 17 A.S.R.2d 145.

Though identification procedure whereby complainant identified defendant in a one-on-one confrontation at police station was impermissibly suggestive, under the totality of the circumstances it was not so unfair as to violate due process, since complainant identified defendant without police prompting or comment, had seen him shortly before the crime, and at the scene of the crime had described physical characteristics and clothing of her assailant which matched defendant and had pointed out a third party who not only had also seen defendant before the crime but then identified him to the police immediately afterwards. American Samoa Gov’t v. Afamasaga, 17 A.S.R.2d 145.

Even an impermissibly suggestive identification procedure does not render identification testimony inadmissible if, in the totality of circumstances, the identification was nonetheless reliable. American Samoa Gov’t v. Fealofa’i, 24 A.S.R.2d 10.

In determining the admissibility of identification testimony, the corrupting effect of the suggestive identification is weighed against (1) the witness’ opportunity to view the criminal at the time of the crime, (2) the witness’ degree of attention, (3) the accuracy of his prior description of the criminal, (4) the level of certainty demonstrated at the confrontation, and (5) the time between the crime and confrontation. American Samoa Gov’t v. Fealofa’i, 24 A.S.R.2d 10.

A one-on-one show up is inherently suggestive; however, suggestiveness of the identification process does not, by itself, merit suppression. American Samoa Gov’t v. Bernard, 26 A.S.R.2d 56.

The factors to be considered in determining the admissibility of identification testimony are the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and confrontation. American Samoa Gov’t v. Bernard, 26 A.S.R.2d 56.

Suggestive show-up identification procedures may deny an accused the fairness of due process. American Samoa Gov’t v. Leali`ie`e, 4 A.S.R.3d 113 (Trial Div. 2000).

Suggestive show-up identification procedures do not render an identification inadmissible if it is still reliable under the totality of circumstances. American Samoa Gov’t v. Leali`ie`e, 4 A.S.R.3d 113 (Trial Div. 2000).

In determining whether an identification is reliable under the totality of circumstances, the Court must weight five principal factors against the corrupting effect of a suggestive identification: (1) the opportunity of the witness to view the criminal at the time of the crime, (2) the witness’ degree of attention, (3) the accuracy of the witness’ prior description of the criminal, (4) the level of certainty demonstrated at the confrontation, and (5) the time between the crime and the confrontation. American Samoa Gov’t v. Leali`ie`e, 4 A.S.R.3d 113 (Trial Div. 2000).

Where defendant was placed in room unhandcuffed, together with other individuals in civilian clothing and uniformed officers, where defendant was not placed in any distinguishing location and where victim was asked to look through window to see if she recognized anyone inside, such procedures were not so suggestive as to outweigh other circumstances supporting reliability of identification. American Samoa Gov’t v. Leali`ie`e, 4 A.S.R.3d 113 (Trial Div. 2000).

§ 5(15) —Subpoena of Witnesses

Under Article I, Section 6 of the Revised Constitution of American Samoa, a defendant accused of a crime is guaranteed the right to compel the attendance of witnesses in his/her favor. American Samoa Gov’t v. Talamoni, 27 A.S.R.2d 123.

However, a subpoena may be quashed if a trial court determines the subpoena to be an oppressive and unreasonable use of the process of the court. American Samoa Gov’t v. Talamoni, 27 A.S.R.2d 123.

Under the Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings, Haw. Rev. Stat. ch. 836 (1993) (“Uniform Act”), there are two requirements for the extradition of a witness: (1) the territory of which the request is made must have a reciprocal provision for “commanding persons within its borders to attend and testify in criminal prosecutions . . . in [Hawaii]”; and (2) the witness requested must be “material.” However, a witness may not be extradited from American Samoa because it has not adopted the Uniform Act. It also has no analogous provision for extraditing material witnesses to other jurisdictions or for securing witnesses in foreign jurisdictions to testify here. In Re Proceedings to Compel Attendance of May Fitiausi, 29 A.S.R.2d 71.

§ 5(16) —Juveniles

SEE FAMILY LAW § 3(5) – RIGHTS IN COURT

Prosecution may not wait until juvenile defendant reaches 18 and then prosecute defendant as adult—this decision must be made by High Court. Government v. Fuaalii, 4 A.S.R. 828.

There is no constitutional right to be tried as a juvenile in criminal matters; legislature may therefore vest in attorney general the discretion whether to institute ordinary criminal proceedings or juvenile proceedings against a minor fourteen years of age or older, who has allegedly committed a violent crime. American Samoa Gov’t v. Julio, 9 A.S.R.2d 128.

In the absence of statute creating right to certification hearing to determine whether to prosecute minor as a juvenile or an adult, the minor has no due process right to such a hearing. American Samoa Gov’t v. Julio, 9 A.S.R.2d 128.

Territorial statute vesting discretion in attorney general to proceed against certain minors as adults was not constitutionally defective due to alleged inconsistency with general purpose of juvenile justice statute to accord special treatment to minors, since both the general rules of statutory construction and the specific language of another statutory provision indicated that the exception was deliberate and purposeful. A.S.C.A. §§ 45.0103(9)(B)(I), 45.0115(c)(2)(a). American Samoa Gov’t v. Julio, 9 A.S.R.2d 128.

A.S.C.A. § 45.0115(c)(2) confers upon the Attorney General’s Office power to prosecute an individual 14 years or older as an “adult” for felony crimes involving violence. American Samoa Gov’t v. Pino, 1 A.S.R.3d 193 (Trial Div. 1997).

The judiciary in American Samoa has the power under to certify an underage individual as an adult for the purposes of criminal proceedings under A.S.C.A. § 45.0115(c)(1). However, it has no power to interfere with a prosecution under A.S.C.A. § 45.0115(c)(2). American Samoa Gov’t v. Pino, 1 A.S.R.3d 193 (Trial Div. 1997).

The Juvenile Justice Act exclusively uses “chronological age,” and not “mental age” to determine whether or not a particular defendant qualifies for treatment as a “child” or as an “adult.” American Samoa Gov’t v. Pino, 1 A.S.R.3d 193 (Trial Div. 1997).

The Juvenile Justice Act was designed to encompass any and all situations in which children break the law, and was not intended to permit certain juveniles to commit misdemeanor assaults without subjecting them to answer for their behavior through some form of adjudicatory proceeding. American Samoa Gov’t v. Fa’apito, 1 A.S.R.3d 199 (Trial Div. 1997).

A.S.C.A. Sec. 45.0115(c)(2) does not prevent the Attorney General from charging certain children with misdemeanors as well as felonies, under certain circumstances, including when the child’s conduct is a crime of violence. American Samoa Gov’t v. Fa’apito, 1 A.S.R.3d 199 (Trial Div. 1997).

While there are a number of other provisions in the Juvenile Justice Act that talk about dealing with children as adults only in the context of felony charges, the Act expressly contemplates prosecution of children for felonies and misdemeanors. American Samoa Gov’t v. Fa’apito, 1 A.S.R.3d 199 (Trial Div. 1997).

Where the government prosecutes a child as an adult for a crime of violence the child is not a “juvenile” within the meaning of the Juvenile Justice Act and the High Court cannot assert jurisdiction over the matter under A.S.C.A. Sec. 3.0208(a)(4). American Samoa Gov’t v. Fa’apito, 1 A.S.R.3d 199 (Trial Div. 1997).

Where the government prosecutes a child as an adult for a crime of violence, the High Court does not have jurisdiction over this case under A.S.C.A. Sec. 45.0115(a)(1), which grants the trial division of the High Court exclusive jurisdiction over cases concerning “any delinquent child, as defined in subsections (2) and (9) of 45.0103”, because a child charged with a crime of violence is excluded from the definition of “delinquent child” under A.S.C.A. Sec. 45.0103(9)(B)(I). American Samoa Gov’t v. Fa’apito, 1 A.S.R.3d 199 (Trial Div. 1997).

§ 5(17) —Collateral Estoppel

Territorial government was not estopped from rearresting a prisoner where: (1) the prisoner, although ineligible for parole, had been paroled because of a clerical error; (2) prisoner had been released for only twenty-eight days before his rearrest, so that he had not been reintegrated into the community and could show no substantial injury resulting from his release and rearrest; (3) since there had been no significant reintegration into the community, no serious injustice was worked by the rearrest; and (4) since the prisoner had been recently convicted of a violent crime, it was not clear that the public interest would not be unduly damaged by the estoppel. Atuatasi v. American Samoa Gov’t, 9 A.S.R.2d 67.

Even under the mutuality doctrine, which has largely been abandoned, the government could sue a convicted criminal for civil damages, and the defendant would be estopped to deny the facts entailed by his conviction. Galea`i v. Atofau, 16 A.S.R.2d 76.

Collateral estoppel applies whether defendant’s conviction resulted from a trial or from a guilty plea, even if induced by a plea bargain. Galea`i v. Atofau, 16 A.S.R.2d 76.

With the abandonment of the mutuality requirement, individual victims of crime can now benefit from collateral estoppel in the same ways and to the same extent that the government has always done. Galea`i v. Atofau, 16 A.S.R.2d 76.

Majority rule gives judgments based on guilty pleas the same collateral effect as other criminal convictions and, as such, are conclusive of all issues that would have been resolved by a conviction following a trial. Galea`i v. Atofau, 16 A.S.R.2d 76.

The traditional requirement is that a party should be estopped only with respect to those matters that were genuinely at issue and genuinely decided in the earlier case. Galea`i v. Atofau, 16 A.S.R.2d 76.

At least when a defendant’s admission to a crime was made upon the advice of competent counsel, collateral estoppel applies with respect to issues which were distinctly and directly put at issue by the pleadings, which were central rather than peripheral to the proceeding, and which were essential to the outcome. Galea`i v. Atofau, 16 A.S.R.2d 76.

Neither a guilty plea nor a verdict after trial estops the defendant with respect to any issue not squarely resolved by the judgment; with respect to these elements a plaintiff must present evidence other than the guilty plea, and a defendant is free to controvert any such evidence. Galea`i v. Atofau, 16 A.S.R.2d 76.

Because a guilty plea in a prior criminal action necessarily eliminates a full and contested presentation of evidence on the issues and may only indicate a compromise or an expectation of a more advantageous disposition of a criminal accusation, the policy underlying collateral estoppel would not be truly served by making a guilty plea conclusive in a civil action. Amisone v. Talaeai, 23 A.S.R.2d 52.

§ 5(18) —Failure to Prosecute

Where the government seeks to resume a prosecution over five and one half years after it filed a criminal complaint and obtained a warrant for the defendant’s arrest, this constitutes an unreasonable failure, neglect, or refusal to prosecute which would authorize the court to dismiss the case. American Samoa Gov’t v. Lavata’i, 1 A.S.R.3d 164 (Trial Div. 1997).

§ 5(19) —Immunity from Prosecution

When a witness testifies for the government in the expectation of immunity from prosecution, such a person has an equitable claim to immunity from prosecution. American Samoa Gov’t v. Hunkin, 3 A.S.R.3d 116 (Trial Div. 1999).

The court’s approval is not needed in order for a prosecutor’s grant of immunity to be binding; however, the prosecutor should give notice to the court of any immunity it grants. American Samoa Gov’t v. Hunkin, 3 A.S.R.3d 116 (Trial Div. 1999).

§ 5(20) —Change of Venue

Motion for change of venue based on pre-trial publicity and alleged actual prejudice resulting therefrom was premature where jury panel had yet to undergo voir dire. American Samoa Gov’t v. Fang, 7 A.S.R.3d 104 (Trial Div. 2003).

Change of venue is an unsuitable remedy to address jury prejudice in American Samoa. American Samoa Gov’t v. Fang, 7 A.S.R.3d 104 (Trial Div. 2003).

A.S.C.A. § 46.0601 is not directed to changes of venue based on potential jury prejudice, but applies in circumstances where it would be more convenient for the court to sit elsewhere. American Samoa Gov’t v. Fang, 7 A.S.R.3d 104 (Trial Div. 2003).

A change of venue is not constitutionally required so long as the court assures a fair trial. American Samoa Gov’t v. Fang, 7 A.S.R.3d 104 (Trial Div. 2003).

§ 6 Trial

§ 6(1) —Bifurcated Proceedings

The bifurcated-proceedings statute divides the inquiry into whether the defendant “committed the criminal act charged” and whether he was “insane at the time of the commission of the criminal act.” A.S.C.A. §§ 46.1301-46.1302. American Samoa Gov’t v. Taylor, 19 A.S.R.2d 99.

In a bifurcated criminal trial, the jury is not exposed to evidence of the defendant’s mental capacity until the jury makes an independent finding as to whether the defendant committed the act charged. A.S.C.A. §§ 46.1301-46.1302. American Samoa Gov’t v. Taylor, 19 A.S.R.2d 99.

Although a defense of diminished mental capacity is arguably comprehended within the “guilt” phase of a bifurcated trial, the interests in a fair trial and an orderly proceeding may be better served by reserving all evidence of mental disease or defect for the “insanity” phase because a jury is likely to view the evidence as being highly probative of issues other than the criminal defendant’s mental state, and a limiting instruction would likely be ineffective. A.S.C.A. §§ 46.1301-46.1302. American Samoa Gov’t v. Taylor, 19 A.S.R.2d 99.

Defense counsel’s motion for a bifurcated criminal trial constituted an implicit waiver of any objection to a procedure which, although clearly consistent with the legislative purpose of the bifurcated-trial statute, is not clearly authorized regarding a defense of diminished mental capacity. A.S.C.A. §§ 46.1301-46.1302. American Samoa Gov’t v. Taylor, 19 A.S.R.2d 99.

§ 6(2) —Due Process of Law

SEE CONSTITUTIONAL LAW § 7(1) – DUE PROCESS

Police may initiate prosecution for traffic offense by issuing ordinary traffic citation and summons even well after all parties have left the scene of the offense, and due process does not require usual procedural protection of full criminal prosecution. A.S.C.A. §§ 22.0802, 22.0803. American Samoa Gov’t v. Ofa, 6 A.S.R.2d 1.

Court order for confinement of prisoner, after his trial and conviction for attempted rape, was issued pursuant to due process of law and could be enforced without further judicial proceedings. American Samoa Gov’t v. Peni Samana, 8 A.S.R.2d 1.

Due process of law was not denied to a convict who had been released from detention in violation of court order and who was subsequently re-arrested, where (1) convict’s lawyer was notified immediately of his re-arrest and did not request a hearing, (2) a hearing was held as soon as the convict’s new lawyer requested one; (3) the scope and period of confinement after re-arrest did not exceed that imposed by the original court order, which had itself been issued pursuant to due process of law. American Samoa Gov’t v. Peni Samana, 8 A.S.R.2d 1.

That some people may misconstrue an otherwise clear judgment and sentence, and even that a clerical employee of the parole board did misconstrue it, does not render the judgment and sentence so vague and ambiguous as to deprive the person convicted of due process of law. Atuatasi v. American Samoa Gov’t, 9 A.S.R.2d 67.

Reincarceration of an inadvertently released prisoner denies due process of law only where, under all the circumstances of the case, reincarceration would contravene fundamental principles of liberty and justice. Atuatasi v. American Samoa Gov’t, 9 A.S.R.2d 67.

Reincarceration of an inadvertently released prisoner did not deny due process of law where the release was due to a ministerial mistake and where, having been released for only twenty-eight days prior to his rearrest, the prisoner had not been so thoroughly reintegrated into society that his rearrest would contravene fundamental principles of liberty and justice. Atuatasi v. American Samoa Gov’t, 9 A.S.R.2d 67.

The heart of due process in parole revocation cases is a concern for basic fairness — the non-arbitrary treatment of a probationer or parolee by the state. American Samoa Gov’t v. Lam Yuen, 11 A.S.R.2d 118.

Requirements of due process in parole revocation proceedings include the parolee’s right to hear the evidence against him, to be heard in person and to present witnesses and documentary evidence, and to confront and cross-examine adverse witnesses unless the hearing officer specifically finds good cause for not allowing such confrontation. American Samoa Gov’t v. Lam Yuen, 11 A.S.R.2d 118.

In some cases, such as when an illegal sentence was pronounced on a defendant unrepresented by counsel or when the circumstances surrounding an error of law made it impossible for counsel to call it to the Court’s attention within ten days, a statutory ten-day limit might amount to an unconstitutional denial of liberty without due process of law. U.S. Const. Amends. V, XIV; Revised Const. of American Samoa art. I, § 2; A.S.C.A. § 46.2402(a). American Samoa Gov’t v. Falefatu, 17 A.S.R.2d 114.

That a criminal may be unable to determine the exact punishment and exceptions to punishment does not render criminal statutes unconstitutional; a person is only entitled to know the maximum punishment available. American Samoa Gov’t v. Falefatu, 17 A.S.R.2d 114.

No constitutional right to rehabilitation at public expense exists, nor do statutes authorizing rehabilitation programs or early release give any particular criminal a constitutionally protected “liberty interest” in participating in them. American Samoa Gov’t v. Falefatu, 17 A.S.R.2d 114.

Denial of an interpreter generally requires a showing of actual prejudice to the defense to justify reversal on appeal. Kim v. American Samoa Gov’t, 17 A.S.R.2d 193.

Defendant’s appeal of an interlocutory order denying his asserted absolute right to appointment of an interpreter on request falls within the collateral order exception since he is asserting a right not to be tried under such circumstances, and such right is effectively unreviewable, since denial of an interpreter generally requires a showing of prejudice to obtain a reversal. Kim v. American Samoa Gov’t, 17 A.S.R.2d 193.

Neither the Due Process Clause of the Fifth Amendment nor the right to a fair trial guaranteed by the Sixth Amendment gives a non-indigent defendant the right to a court-appointed and government-paid interpreter. Kim v. American Samoa Gov’t, 17 A.S.R.2d 193.

Trial judge has wide discretion in deciding whether to appoint an interpreter and need not accept defendant’s assertion that he needs one as dispositive, but must balance defendant’s right to confrontation and effective assistance against the public’s interest in the economical administration of criminal law. Kim v. American Samoa Gov’t, 17 A.S.R.2d 193.

American Samoa Constitution guarantees a court-appointed interpreter only to an indigent defendant who will otherwise be unable to understand the proceedings against him or to communicate with his counsel. Kim v. American Samoa Gov’t, 17 A.S.R.2d 193.

The overlap of the statutes defining sodomy and deviate sexual assault does not violate a criminal defendant’s due process. A.S.C.A. §§ 46.3611, 46.3612. American Samoa Gov’t v. Whitney, 20 A.S.R.2d 29.

There is no need for application of the rule of lenity, where two statutes that overlap do not possess internal conflict or ambiguity. American Samoa Gov’t v. Whitney, 20 A.S.R.2d 29.

When the statutes in question clearly define the conduct proscribed and the punishment available under each, due process is satisfied. American Samoa Gov’t v. Whitney, 20 A.S.R.2d 29.

In passing both a sodomy and a deviate sexual assault statute, the Fono has indicated that a prosecutor has the discretion to chose between charging a Class B or Class C felony for the same conduct. A.S.C.A. §§ 46.3611, 46.3612. American Samoa Gov’t v. Whitney, 20 A.S.R.2d 29.

As each of two statutes has its own penalty provisions, neither a prosecutor nor a defendant is free to choose among various sentencing provisions. American Samoa Gov’t v. Whitney, 20 A.S.R.2d 29.

Although a defendant is not to be prejudiced because of his indigent circumstances, he is not entitled to a transcript as of right simply upon demand. American Samoa Gov’t v. Suiaunoa, 24 A.S.R.2d 161.

If, as a matter of trial strategy, counsel declines to cross-examine a witness or avoids asking certain questions, the defendant’s right to confront witnesses is not violated. Man v. American Samoa Gov’t, 29 A.S.R.2d 66.

A demonstration of actual prejudice is a necessary but not sufficient element of a due process claim arising from pre‑accusatory delay. The court must also consider the reasons for the delay as well as the prejudice to the accused. American Samoa Gov’t v. Logovi`i, 30 A.S.R.2d 143.

In considering the reasons for pre‑accusatory delay, broad leeway is given for prosecutorial discretion and legitimate investigative purposes. Conversely, a delay that is imposed for purely tactical reasons is probably violative of due process. American Samoa Gov’t v. Logovi`i, 30 A.S.R.2d 143.

When a pre‑accusatory delay is caused by prosecutorial neglect rather than by intentional tactical delay, the evidence of actual prejudice to the defendant must be compelling to sustain a dismissal based on due process. American Samoa Gov’t v. Logovi`i, 30 A.S.R.2d 143.

The unavailability of witnesses resulting from an extended delay is not enough by itself to demonstrate that the defendant cannot receive a fair trial. The defendant must show how the testimony of the missing witnesses would have been exculpatory. American Samoa Gov’t v. Logovi`i, 30 A.S.R.2d 143.

Even where Court is uninfluenced by the prosecutor’s sentencing recommendation, due process requires that the sentence be vacated. American Samoa Gov’t v. Pearson, 4 A.S.R.3d 56 (Trial Div. 2000).

Where the government seeks an enhanced sentence based on allegations of recidivism, due process requires that the defendants be given adequate notice and an opportunity to be heard on the recidivism issue prior to sentencing. American Samoa Gov’t v. Samana, 3 A.S.R.3d 27 (App. Div. 1999).

Where criminal defendant had moved to exclude evidence of his prior conviction, and motion was heard prior to sentencing, he had received notice and been afforded an opportunity to be heard in accordance with the requirements of due process and his enhanced sentence was therefore constitutional. American Samoa Gov’t v. Samana, 3 A.S.R.3d 27 (App. Div. 1999).

Suggestive show-up identification procedures may deny an accused the fairness of due process. American Samoa Gov’t v. Leali`ie`e, 4 A.S.R.3d 113 (Trial Div. 2000).

Use of defendant’s pre-arrest, pre-Miranda silence as substantive evidence of guilt at trial does not violate privilege against self-incrimination or right to due process. Isaia v. Am. Samoa Gov’t, 6 A.S.R.3d 3 (App. Div. 2002).

A fair trial in a fair tribunal is a basic requirement of due process. American Samoa Gov’t v. Fang, 7 A.S.R.3d 104 (Trial Div. 2003).

Due process requires that a jury trial include: (1) a charge fairly made and fairly tried in a public tribunal free of prejudice, passion, excitement, and tyrannical power; (2) a panel of impartial, indifferent jurors; and (3) a verdict based on evidence received in open court, not from outside sources. American Samoa Gov’t v. Fang, 7 A.S.R.3d 104 (Trial Div. 2003).

§ 6(3) —Equal Protection

SEE CONSTITUTIONAL LAW § 7(2) – EQUAL PROTECTION

Statutory scheme under which the same act may be punished under either of two statutes, with prosecutor having discretion to choose under which statute to prosecute, does not violate equal protection clause of federal constitution. U.S. Const. amend. 14. American Samoa Gov’t v. Macomber, 8 A.S.R.2d 182.

Statutory scheme under which two statutes define two different crimes, but proof of extra element is required by statute prescribing higher penalty, does not violate equal protection clause of federal constitution. U.S. Const. amend. 14. American Samoa Gov’t v. Macomber, 8 A.S.R.2d 182.

Statute drawing a distinction between people whose licenses were suspended for driving under the influence and people whose licenses were suspended for other reasons had a rational basis, since classification was based on conduct rather than status and legislature believed there was a special need to deter and punish drunken driving. A.S.C.A. § 22.0223. American Samoa Gov’t v. Macomber, 8 A.S.R.2d 182.

Even under equal protection analysis more stringent than the rational basis test, statute punishing those who drove after their licenses had been suspended for driving under the influence did not create unconstitutional classification, since (1) statutory distinction was not incoherent or unclear; (2) court should not substitute its opinion for that of the legislature on relative culpability, need for deterrence, and other factors necessary to determine range of appropriate sentences for various offenses; (3) drunken driving does appear to present special problems that might suggest the need for special statutory treatment. U.S. Const. amend 14; A.S.C.A. § 22.0223. American Samoa Gov’t v. Macomber, 8 A.S.R.2d 182.

There is a rational basis for a legislative distinction between (1) people who drive under the influence and then drive with a suspended license; and (2) those who commit other sorts of conduct punishable by suspension and then drive with a suspended license; therefore, a statute embodying such a distinction did not deny equal protection of the laws. U.S. Const. Am. 14. Macomber v. American Samoa Gov’t, 12 A.S.R.2d 29.

The freedom to travel is one of the freedoms a convicted criminal may lose; therefore, a requirement that a convict spend part or all of his probation outside the Territory does not unconstitutionally abridge any such right. American Samoa Gov’t v. Falefatu, 17 A.S.R.2d 114.

To prevail under the defense of selective prosecution, a defendant must show that his prosecution was deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification, and that others similarly situated have not been prosecuted. American Samoa Gov’t v. Lafoga, 30 A.S.R.2d 110.

Selective prosecution claims are reviewed under ordinary equal protection standards. American Samoa Gov’t v. Lafoga, 30 A.S.R.2d 110.

A claim for selective prosecution based on the publicity in a case is analyzed under the rational basis standard. American Samoa Gov’t v. Lafoga, 30 A.S.R.2d 110.

Under the rational-basis test, the government need only show that its actions are rationally related to a legitimate state interest. American Samoa Gov’t v. Lafoga, 30 A.S.R.2d 110.

§ 6(4) —Double Jeopardy

When each of two crimes requires proof of an element not included in the other, and when defendant sought severance of the two charges and immediately pleaded guilty to the less serious offense, trial on the other charge does not constitute double jeopardy. American Samoa Gov’t v. Moafanua, 4 A.S.R.2d 33.

A crime that requires proof of specific intent is not a lesser-included offense of a crime that does not require proof of specific intent and must be separately charged. Tauasosi v. American Samoa Gov’t, 7 A.S.R.2d 5.

For double-jeopardy purposes, a crime is a separate offense and not a lesser-included offense if each statutory provision requires proving a fact which the other does not. U.S. Const. Amend. V; Rev. Const. Am. Samoa Art. I, § 6. American Samoa Gov’t v. Fealofa’i, 24 A.S.R.2d 10.

The entire record, and not simply the information or indictment, is scrutinized in a double-jeopardy challenge. U.S. Const. Amend. V; Rev. Const. Am. Samoa Art. I, § 6. American Samoa Gov’t v. Meleisea, 24 A.S.R.2d 32.

Prison discipline does not preclude a subsequent criminal prosecution based on double jeopardy. American Samoa Gov’t v. Lafoga, 30 A.S.R.2d 110.

Appellant’s convictions for both Driving under the Influence (A.S.C.A. § 22.0707) and Careless Driving Causing Injury and Property Damage (A.S.C.A. § 22.0701) did not contravene A.S.C.A. § 46.3107(3) as neither violation was necessarily a violation of the other. Pule v. American Samoa Gov’t, 1 A.S.R.3d 7 (App. Div. 1997).

The double jeopardy clause of the Fifth Amendment applies to alterations in sentencing. Pedro v. Am. Samoa Gov’t, 6 A.S.R.3d 27 (App. Div. 2002).

At the core of the double jeopardy clause is the principle that a defendant must not be punished more than once for the same offense. Pedro v. Am. Samoa Gov’t, 6 A.S.R.3d 27 (App. Div. 2002).

A trial court’s determination as to whether a criminal defendant’s double jeopardy rights have been violated is reviewed de novo. Fuimaono v. Am. Samoa Gov’t, 6 A.S.R.3d 67 (App. Div. 2002).

American Samoa’s double jeopardy clause affords the same protections as does the Federal Constitution. Fuimaono v. Am. Samoa Gov’t, 6 A.S.R.3d 67 (App. Div. 2002).

The double jeopardy clause of American Samoa’s constitution protects an accused against a second prosecution for the same offense after acquittal, a second prosecution for the same offense after conviction, and multiple punishments for the same offense. Fuimaono v. Am. Samoa Gov’t, 6 A.S.R.3d 67 (App. Div. 2002).

Determination of the “same offense” is the cornerstone of any double jeopardy analysis. Fuimaono v. Am. Samoa Gov’t, 6 A.S.R.3d 67 (App. Div. 2002).

American Samoa utilizes the same-elements test, otherwise known as the ‘Blockburger test,’ which inquires whether each offense contains an element not contained in the other; if not, they are the same offense and double jeopardy bars additional punishment and successive prosecution. Fuimaono v. Am. Samoa Gov’t, 6 A.S.R.3d 67 (App. Div. 2002).

A.S.C.A. § 46.3107(4) does not speak to subsequent prosecutions, but is applicable only when determining whether one specific statute allows for multiple convictions arising out of one transaction. Fuimaono v. Am. Samoa Gov’t, 6 A.S.R.3d 67 (App. Div. 2002).

A single transaction can give rise to distinct offenses under separate statutes without violating the Double Jeopardy Clause. Fuimaono v. Am. Samoa Gov’t, 6 A.S.R.3d 67 (App. Div. 2002).

A.S.C.A. § 46.3107(4) did not apply to case where defendant had been charged under three separate statutes, and none of the charges arose out of the same statute. Fuimaono v. Am. Samoa Gov’t, 6 A.S.R.3d 67 (App. Div. 2002).

A lesser included offense is one whose elements are a subset of the charged offense. Am. Samoa Gov’t v. Vaai, 6 A.S.R.3d 221 (Trial Div. 2002).

When there are overlapping statutes providing different penalties no lesser offense instruction need be given. Am. Samoa Gov’t v. Vaai, 6 A.S.R.3d 221 (Trial Div. 2002).

When some statutory provisions expressly mention a requirement, the omission of that requirement from other statutory provisions implies that the legislature intended both the inclusion of the requirement and the exclusion of the requirement. Am. Samoa Gov’t v. Vaai, 6 A.S.R.3d 221 (Trial Div. 2002).

§ 6(5) —Self Incrimination

In a joint trial, co-defendants have the right to refuse to testify based on their privilege against self-incrimination. American Samoa Gov’t v. Fairholt, 28 A.S.R.2d 26.

The trial court must, upon request, instruct the jury that no inference can be drawn from defendant’s refusal to testify. Pua’a v. American Samoa Gov’t, 3 A.S.R.3d 39 (App. Div. 1999).

Prosecution’s comment on a defendant’s silence, which occurs after arrest and Miranda warnings, is not allowed. American Samoa Gov’t v. Faletogo, 4 A.S.R.3d 190 (Trial Div. 2000).

Article I, Section 6 of the Revised Constitution of American Samoa prohibits a person from being compelled to testify against himself or herself in a criminal case. American Samoa Gov’t v. Kava, 4 A.S.R.3d 240 (Trial Div. 2000).

Although self-incriminating statements of a suspect under interrogation without a prior Miranda warning are subject to the exclusionary rule, the suspect must be in custody and subject to official interrogation. American Samoa Gov’t v. Galumalemaga, 5 A.S.R.3d 24 (Trial Div. 2001).

Defendant returning from unsupervised work release was subjected to routine search on prison grounds which revealed contraband in his shoe. Without threats, deceptions, intimidations, or Miranda warnings, officer conducting search began on-the-scene questioning and defendant immediately answered. Defendant’s right against self-incrimination was not violated and statements to officer are admissible. American Samoa Gov’t v. Galumalemaga, 5 A.S.R.3d 24 (Trial Div. 2001).

The Revised Constitution of American Samoa guarantees individuals the right against self-incrimination and requires that any confession be voluntary. American Samoa Gov’t v. Alataua, 5 A.S.R.3d 77 (Trial Div. 2001).

The right against self-incrimination requires that anyone in police custody be advised, before interrogation by the police, of his or her right to remain silent, and right to counsel. American Samoa Gov’t v. Alataua, 5 A.S.R.3d 77 (Trial Div. 2001).

Independent evidence that someone committed an alleged crime is the traditional minimal means of corroboration permitting admission of a defendant’s incriminating statements. Am. Samoa Gov’t v. Ropati, 7 A.S.R.3d 69 (Trial Div. 2003).

§ 6(6) —Right to a Speedy Trial

In case of misdemeanors, prosecution must be commenced within six months after commission of crime or offense. (CAS 807.) Government v. Palafu, 3 A.S.R. 556.

There is no fixed formula for determining when the right to a speedy trial has been violated; each case must be determined on its own facts. Rev’d Const. Am. Samoa, art. 1 § 6. Pene v. American Samoa Gov’t, 12 A.S.R.2d 43.

Relevant factors in determining if right to speedy trial violated include the length of delay, the reasons for the delay, whether defendant demanded trial, and the prejudice to defendant resulting from delay. Rev’d Const. Am. Samoa, art. 1 § 6. Pene v. American Samoa Gov’t, 12 A.S.R.2d 43.

Defendant’s right to speedy trial was not violated, even though the delay was over a year and a prompt trial had been demanded, where the reasons for the delay were substantial, including the need to entertain and grant motions to quash many subpoenas inappropriately issued by defendant and also to conduct competency examinations; and where defendant was not substantially prejudiced by the delay, as he was not incarcerated and the documentary nature of the evidence minimized the danger of fading memories. Rev’d Const. Am. Samoa, art. 1 § 6. Pene v. American Samoa Gov’t, 12 A.S.R.2d 43.

A defendant’s right to a speedy trial in a criminal prosecution is protected by Article I Section 6 of the Revised Constitution of American Samoa. American Samoa Gov’t. v. Togialua, 3 A.S.R.3d 78 (1999).

Accused’s right to a speedy trial had not been abridged where jury trial was set for a time nearly seven (7) months post-arraignment, where defendant did not object to trial date at original trial setting, where defendant was charged with a homicide-related offense requiring substantial preparation and where criminal caseload of court was significant. American Samoa Gov’t v. Togiailua, 3 A.S.R.3d 78 (1999).

The right of a defendant in a criminal prosecution to a speedy trial is a fundamental right of an accused guaranteed by Article I, Section 6 of the Revised Constitution of American Samoa of 1966, and the Sixth Amendment to the United States Constitution. American Samoa Gov’t v. Majhor, 7 A.S.R.3d 147 (Trial Div. 2003).

The right of a defendant in a criminal prosecution to a speedy trial attaches when a defendant is officially accused. American Samoa Gov’t v. Majhor, 7 A.S.R.3d 147 (Trial Div. 2003).

Whether the right to a speedy trial has been violated must be determined on case-by-case basis and balancing the length of delay, reasons for delay, timeliness and vigor of the defendant’s assertion of the right, and the degree of prejudice to the defendant. American Samoa Gov’t v. Majhor, 7 A.S.R.3d 147 (Trial Div. 2003).

A threshold showing that the length of delay is presumptively prejudicial to the defendant usually triggers the need to consider the remaining factors. In general one year is presumptively prejudicial. American Samoa Gov’t v. Majhor, 7 A.S.R.3d 147 (Trial Div. 2003).

In addressing the right to a speedy trial, the court considers whether the delay is deliberate, neutral, or valid. Intentional prosecutorial delay, usually for some strategic purpose, is always suspect. American Samoa Gov’t v. Majhor, 7 A.S.R.3d 147 (Trial Div. 2003).

Unless the defendant is suffering actual prejudice by the delay, the timeliness of her speedy trial demand does not of itself override the reasons for delay noted above. American Samoa Gov’t v. Majhor, 7 A.S.R.3d 147 (Trial Div. 2003).

Recognized prejudice from delay usually encompasses oppressive pretrial incarceration, anxiety and concern, or impairment of defenses. The defendant must demonstrate actual prejudice in one or more of these three areas, or in some other significant way. American Samoa Gov’t v. Majhor, 7 A.S.R.3d 147 (Trial Div. 2003).

In light of justifiable reasons for the delay, the defendant’s pretrial incarceration and heightened anxiety, if any, during the delay are not persuasive reasons to proceed with the trial within a week. American Samoa Gov’t v. Majhor, 7 A.S.R.3d 147 (Trial Div. 2003).

§ 6(7) —Trial by Jury

Disqualification of jurors in Samoa on basis of their inability to speak, read, or understand English would defeat concept of randomness that underlies idea of trial by impartial jury. American Samoa Gov’t v. Agasiva, 4 A.S.R.2d 110.

A defendant does not have the right to a trial by any particular jury or jurors, but only to a trial by a competent and impartial jury. U.S. Const. Amend. VI. American Samoa Gov’t v. Fealofa’i, 24 A.S.R.2d 10.

No right exists for a citizen of another country to be tried in American Samoa by a jury of his compatriots. A.S.C.A. § 46.1504(1). American Samoa Gov’t v. Schuster, 24 A.S.R.2d 102.

It is the exclusive function of the jury to determine the credibility of witnesses, resolve evidentiary conflicts and draw reasonable inferences from proven facts. American Samoa Gov’t v. Tauala, 25 A.S.R.2d 179.

In the absence of any contrary evidence, the court will not assume a tainted jury. American Samoa Gov’t v. Snow, 26 A.S.R.2d 78.

It is the trial court’s province to determine whether or not news media materials have the possibility of prejudicing the jury. A special jury voir dire is not essential to that determination, and a defendant has no right to be granted this procedure. American Samoa Gov’t v. Snow, 26 A.S.R.2d 78.

Having neglected to request a sequestered jury, defendant cannot now complain of the jury’s minimal exposure to daily life. American Samoa Gov’t v. Snow, 26 A.S.R.2d 78.

No rule requires a jury to deliberate for any set length of time, and a verdict reached in about five minutes will be upheld. American Samoa Gov’t v. Su`a, 31 A.S.R.2d 8.

A juror may not impeach his own verdict once the jury has been discharged. American Samoa Gov’t v. Su`a, 31 A.S.R.2d 8.

While “extraneous” influences on the jury’s deliberations can overturn a jury verdict, evidence of discussions among jurors, intimidation or harassment of one juror by another, and other intrajury influences on the verdict is not competent to impeach a verdict. American Samoa Gov’t v. Su`a, 31 A.S.R.2d 8.

A.S.C.A. § 3.0232(b), which seems to mandate that jury voir dire is the court’s exclusive province, prevails over any court rule to the contrary. See T.C.R.Cr.P. 24(a). American Samoa Gov’t v. Pu`aa, 31 A.S.R.2d 73.

The fact that the trial judge alerted Appellant’s counsel as to the costs associated with a jury trial constituted no cognizable prejudice to Appellant as Appellant ultimately received a jury trial. Pule v. American Samoa Gov’t, 1 A.S.R.3d 7 (App. Div. 1997).

A.S.C.A. § 3.0232(b) requires all jury trials to be heard before two associate judges sitting with either the Chief or Associate Justice, even if the jury trial is held before the district court. Stowers v. Am. Samoa Gov’t, 7 A.S.R.3d 16 (App. Div. 2003).

Every defendant charged with an offense carrying a maximum possible punishment of over 6 months of imprisonment, whether appearing before the High Court or the district court, has the right to a jury trial. Stowers v. Am. Samoa Gov’t, 7 A.S.R.3d 16 (App. Div. 2003).

Due process is violated when inflammatory and pervasive publicity taints a jury pool, resulting in preconceived ideas by often misinformed jurors. American Samoa Gov’t v. Fang, 7 A.S.R.3d 104 (Trial Div. 2003).

There are two ways in which to show that a jury has been unfairly tainted against a criminal defendant—presumed (or inherent) prejudice and actual prejudice. American Samoa Gov’t v. Fang, 7 A.S.R.3d 104 (Trial Div. 2003).

In order to demonstrate actual prejudice to a jury trial defendant, he or she must show that it is reasonably likely that a fair and impartial jury cannot be secured. American Samoa Gov’t v. Fang, 7 A.S.R.3d 104 (Trial Div. 2003).

Actual prejudice to criminal defendant by pretrial publicity can only be discerned by reviewing both the extent and nature of the pre-trial publicity and the responses of the prospective jurors through voir dire. American Samoa Gov’t v. Fang, 7 A.S.R.3d 104 (Trial Div. 2003).

A showing of presumed prejudice is rare, and is reserved for exceptional cases where the influence of the news media negatively pervades the proceedings, either in the community or courtroom. American Samoa Gov’t v. Fang, 7 A.S.R.3d 104 (Trial Div. 2003).

Unlike actual prejudice, presumed prejudice can be proven without voir dire of potential jurors, but in order to do so, a criminal defendant bears a heavy burden and must show oversaturation of highly sensationalized news coverage against him or her. American Samoa Gov’t v. Fang, 7 A.S.R.3d 104 (Trial Div. 2003).

Where criminal defendants produced six newspaper articles covering events leading up to their trials for promoting prostitution and also a number of letters to the editor slanted against them on account of their race, but failed to show any coverage in the radio or television mediums, Court refused to find presumed prejudice at pre-trial stage, but would allow defendants to demonstrate actual prejudice at voir dire phase of trial. American Samoa Gov’t v. Fang, 7 A.S.R.3d 104 (Trial Div. 2003).

Where issue of tainted jury was raised, pre-trial, before court, defense attorneys were allowed opportunity to submit questionnaires, in advance of trial, so that issue of juror prejudice could be thoroughly addressed. American Samoa Gov’t v. Fang, 7 A.S.R.3d 104 (Trial Div. 2003).

§ 6(8) —Right to a Public Trial

Neither the rights to free speech and a free press nor a criminal defendant’s constitutional right to a public trial preclude a court from excluding members of the public from the courtroom during the testimony of juvenile complaining witness in a rape case, where the court has determined after a public hearing that such exclusion is necessary to protect the witness’s psychological well-being or to prevent her from being harassed and intimidated. American Samoa Gov’t v. Masaniai, 4 A.S.R.2d 156.

Trial judge may exclude spectators from the courtroom during testimony when necessary to protect or shield the witness; to prevent embarrassment or emotional disturbance; or to enable a reluctant witness to testify to material facts. American Samoa Gov’t v. Masaniai, 6 A.S.R.2d 114.

Trial judge properly decided, after a public hearing at which each spectator had an opportunity to express reasons for his or her desire to remain in the courtroom, that the public should be excluded during the testimony of a youthful rape victim when trial judge found that certain spectators wished to be present in order to intimidate the witness. American Samoa Gov’t v. Masaniai, 6 A.S.R.2d 114.

Exclusion of spectators from courtroom under exigent circumstances did not violate criminal defendant’s right to a public trial or the public’s right to be present. U.S. Const. Amends. I, VI. American Samoa Gov’t v. Masaniai, 6 A.S.R.2d 114.

§ 6(9) —Opening and Closing Arguments

A trial court has wide latitude and discretion in supervising the time limits, the scope, and the extent of argument and summation. Rulings on such issues are subject to review for abuse of discretion. Pule v. American Samoa Gov’t, 1 A.S.R.3d 7 (App. Div. 1997).

In case where closing argument limited to two minutes, strong evidence was presented of Appellant’s guilt, and rule limiting closing argument had dubious effect on jury’s verdict, it was not abuse of discretion to impose such a time limitation. Pule v. American Samoa Gov’t, 1 A.S.R.3d 7 (App. Div. 1997).

Where counsel fails to timely object to the trial court’s rulings on the time limits, scope, and extent of argument, there must be a showing of plain error to afford a basis of reversal. Pule v. American Samoa Gov’t, 1 A.S.R.3d 7 (App. Div. 1997).

Where the evidence against a defendant is overwhelming and would not have affected the jury’s verdict, the Court’s time limitation on closing arguments will not constitute plain error. Pule v. American Samoa Gov’t, 1 A.S.R.3d 7 (App. Div. 1997).

§ 6(10) —Motion for Judgment of Acquittal

After the jury returns a guilty verdict, a defendant may move that the court set aside the verdict and enter a judgment of acquittal. T.C.R.Cr.P. Rule 29(c). American Samoa Gov’t v. Tauala, 25 A.S.R.2d 179.

In considering a motion for acquittal, a trial court must determine whether, viewing all the evidence in the light most favorable to the Government and drawing all reasonable inferences and credibility choices in favor of the jury’s verdict, a reasonable trier of fact could find that the evidence established guilt beyond a reasonable doubt. American Samoa Gov’t v. Tauala, 25 A.S.R.2d 179.

The court should set aside a guilty verdict only if the evidence weighs heavily enough against the verdict that a miscarriage of justice may have occurred, not merely because the court might have reached a different result. American Samoa Gov’t v. Samana, 2 A.S.R.3d 58 (Trial Div. 1998).

Despite bad conduct of government agents during trial, reversal is not warranted on the basis of cumulative error; where there is no trial error of significance, there is no cumulative error. Pua’a v. American Samoa Gov’t, 3 A.S.R.3d 39 (App. Div. 1999).

§ 6(11) —Mistrial

Mistrial issues are usually fact intensive, and, therefore, are largely within the trial court’s discretion. American Samoa Government v. Solaita, 27 A.S.R.2d 9.

A mistrial is a last resort and should not be declared absent a showing of a high degree of necessity, or manifest necessity. American Samoa Government v. Solaita, 27 A.S.R.2d 9.

In granting a mistrial, a trial court must explicitly find no reasonable alternatives. American Samoa Government v. Solaita, 27 A.S.R.2d 9.

Where prosecutors have improperly introduced evidence of defendant’s pleas of nolo contendere in previous criminal proceedings, court will not grant a mistrial, but will strike and disregard the evidence. American Samoa Gov’t v. Solaita, 27 A.S.R.2d 9.

The decision of whether to move for a mistrial rather than continuing with the empaneled jury is purely strategic, and therefore not challengeable on appeal. Man v. American Samoa Gov’t, 29 A.S.R.2d 66.

Although government agents behave reprehensibly during a trial by talking to newspaper reporters and discussing their testimony with each other in direct violation of a trial court’s orders, and by initially lying to the trial court about such violations, and by lying under oath during cross-examination about meeting with the prosecution to discuss testimony, and although the agents are held in contempt by the trial court, it is not necessarily error to deny a motion for mistrial under such circumstances. Pua’a v. American Samoa Gov’t, 3 A.S.R.3d 39 (App. Div. 1999).

A trial court should grant a mistrial for prosecutorial misconduct if it appears more probable than not that the alleged misconduct affected the jury’s verdict. Pua’a v. American Samoa Gov’t, 3 A.S.R.3d 39 (App. Div. 1999).

A trial court’s denial of a mistrial motion is reviewed to determine if such denial was an abuse of discretion. Pua’a v. American Samoa Gov’t, 3 A.S.R.3d 39 (App. Div. 1999).

Where an officer’s misconduct occurs in open court, and defense counsel is given every opportunity to make hay out of the officer’s misleading answers in cross-examination and in closing argument, and because catching a government agent prevaricating on the stand provides a significant boost to a defense, such behavior does not make a compelling case for a mistrial. Pua’a v. American Samoa Gov’t, 3 A.S.R.3d 39 (App. Div. 1999).

§ 6(12) —Jury Instructions

Jury instructions may be written in simple, conversational language. Lavata’i v. Am. Samoa Gov’t, 2 A.S.R.2d 8 (App. Div. 1984).

Where government’s case is based on more than just a defendant’s presence, and the jury is properly instructed on all elements of the crime, then a ‘mere presence’ instruction is unnecessary. American Samoa Gov’t v. Samana, 2 A.S.R.3d 58 (Trial Div. 1998).

The trial court must, upon request, instruct the jury that no inference can be drawn from defendant’s refusal to testify. Pua’a v. American Samoa Gov’t, 3 A.S.R.3d 39 (App. Div. 1999).

Whether the court’s instructions to the jury correctly state the elements of a crime or adequately covered a defendant’s proffered defense is reviewed de novo. American Samoa Gov’t v. Samana, 3 A.S.R.3d 27 (App. Div. 1999).

Defense counsel’s failure to request a “no inference” instruction is not outside the wide range of professionally competent assistance which is constitutionally required, nor does such failure demonstrate a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different; competent counsel could specifically choose not to request such instruction because it can be perceived as highlighting in the jurors’ minds the defendant’s failure to testify. Pua’a v. American Samoa Gov’t, 3 A.S.R.3d 39 (App. Div. 1999).

Whether a given jury instruction is an adequate substitute for a defendant’s requested instruction is reviewed as a matter of law, and there is no error where the trial court rejects a defendant’s request that the jury be instructed that if it “believes that a witness willfully and deliberately testified falsely, then it may disregard all of the witness’ testimony,” and instead instructs the jury that “in considering the testimony of any witness, you may take into account whether the witness willfully testified falsely in any respect,” since such instruction is an adequate substitute for the requested one, and though it may not be as strongly worded as the requested instruction, the meaning of the instruction is identical in that a witness’ untruthfulness as to one issue may be used in evaluating the witness’ answers on other issues. Pua’a v. American Samoa Gov’t, 3 A.S.R.3d 39 (App. Div. 1999).

Whether a trial court’s instructions adequately present a defendant’s theory of the case is a question of law reviewed de novo. Fonoti v. Am. Samoa Gov’t, 6 A.S.R.3d 77 (App. Div. 2002).

A trial court’s formulation of jury instructions is reviewed for an abuse of discretion. Fonoti v. Am. Samoa Gov’t, 6 A.S.R.3d 77 (App. Div. 2002).

When reviewing jury instructions, the relevant inquiry is whether the instructions as a whole are misleading or inadequate to guide the jury’s deliberation. Fonoti v. Am. Samoa Gov’t, 6 A.S.R.3d 77 (App. Div. 2002).

Generally, a defendant is entitled to an instruction on any defense for which sufficient evidence exists for a jury to find in his favor, but is not entitled to a particular form of an instruction so long as the jury is adequately instructed on the defendant’s theory of the defense. Fonoti v. Am. Samoa Gov’t, 6 A.S.R.3d 77 (App. Div. 2002).

§ 6(13) —Sufficienct Evidence/Burden of Proof

The jury’s finding that an injury had occurred was not clearly erroneous where there was testimony that the victim “experienced pain in his legs, side and back.” Pule v. American Samoa Gov’t, 1 A.S.R.3d 7 (App. Div. 1997).

Where the evidence against a defendant is so strong that the absence of the purported error would not have changed the jury’s verdict, plain error is seldom found. Pule v. American Samoa Gov’t, 1 A.S.R.3d 7 (App. Div. 1997).

For an appellant to prevail on a claim of insufficient evidence, he must show that no rational trier of fact, viewing the evidence in the light most favorable to the prosecution, could have found the essential elements of the crime beyond a reasonable doubt. Suani v. American Samoa Gov’t, 1 A.S.R.3d 28 (App. Div. 1997).

In evaluating the sufficiency of the evidence the inquiry is not whether the evidence excludes every hypothesis except guilt, but whether the trial court could reasonably arrive at its verdict. Suani v. American Samoa Gov’t, 1 A.S.R.3d 28 (App. Div. 1997).

There is sufficient evidence to support a conviction if, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. American Samoa Gov’t v. Samana, 3 A.S.R.3d 27 (App. Div. 1999).

In reviewing sufficiency of the evidence claims the appellate court determines whether viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Pua’a v. American Samoa Gov’t, 3 A.S.R.3d 39 (App. Div. 1999).

It is well within the province of the jury to draw reasonable inferences from proven facts. Thus, circumstantial evidence and inferences drawn from it may be sufficient to sustain a conviction. Pua’a v. American Samoa Gov’t, 3 A.S.R.3d 39 (App. Div. 1999).

Where government introduced uncontradicted testimony that defendant transported a suitcase containing several hundred grams of methamphetamine to Samoa, paid for his first class airline ticket in cash, the clothes in the suitcase fit defendant and although defendant claimed to have been paid $500 at the Honolulu airport to take a suitcase of unknown contents to Samoa, he had only $5.29 on his person at the time of his arrest in Samoa, the jury could reasonably infer defendant knew he was transporting contraband. Pua’a v. American Samoa Gov’t, 3 A.S.R.3d 39 (App. Div. 1999).

Beyond a reasonable doubt should not be treated as an impossible hurdle. Faifaiese v. Am. Samoa Gov’t, 6 A.S.R.3d 10 (App. Div. 2002).

Upon review of facts, verdict must stand if it is determined that rational trier of fact could find guilt beyond reasonable doubt. Faifaiese v. Am. Samoa Gov’t, 6 A.S.R.3d 10 (App. Div. 2002).

If, upon review of the facts, it is determined that a rational trier of fact could find guilt beyond reasonable doubt, the verdict must stand. Faletogo v. Am. Samoa Gov’t, 6 A.S.R.3d 22 (App. Div. 2002).

In reviewing a trial court’s findings of fact, the test is not whether facts in the record may support a decision for the appellant, but whether sufficient evidence supported the trial court’s decision. Williams v. Am. Samoa Gov’t, 6 A.S.R.3d 35 (App. Div. 2002).

The standard of beyond a reasonable doubt is not treated as an impossible hurdle. Williams v. Am. Samoa Gov’t, 6 A.S.R.3d 35 (App. Div. 2002).

Where government’s expert witness performed 2 of the 3 standard forensic tests to determine whether substance was marijuana, was unable to perform the third due to the fact that the substance was no longer in plant form, but nonetheless concluded that the substance was marijuana, there was sufficient evidence to support jury’s finding that the substance in defendant’s possession was marijuana. Fuimaono v. Am. Samoa Gov’t, 6 A.S.R.3d 67 (App. Div. 2002).

The test for determining if there is sufficient evidence to support a conviction is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Fonoti v. Am. Samoa Gov’t, 6 A.S.R.3d 77 (App. Div. 2002).

A jury has the the exclusive province of determining the credibility of witnesses and an appellate court must assume that the jury resolved all credibility matters in a manner which supports the verdict. Fonoti v. Am. Samoa Gov’t, 6 A.S.R.3d 77 (App. Div. 2002).

§ 6(14) —Record of Proceedings

Electronic recording device satisfies statutory requirement for a stenographic record and a trial de novo is not required for an appeal from district court when an adequate record has been made below. Vaela’a v. Am. Samoa Gov’t, 1 A.S.R.2d 70 (App. Div. 1983).

§ 7 Punishment

§ 7(1) —General Provisions

There is no regulation affixing maximum sentence for assault and battery in Samoa, and there is no law of United States making assault and battery a crime and affixing sentence thereto, since federal courts apply laws of states in which assault and battery occurred. American Samoa v. Willis, 1 A.S.R. 635.

Where there is no federal law for assault and battery and no law in American Samoa, court will look to laws of territories and states which are available to determine maximum sentence. American Samoa v. Willis, 1 A.S.R. 635.

Sentence of six months imprisonment for assault and battery is equal to maximum in Alaska and California for first offense, and although severe, is not illegal, it being within the power of trial court. American Samoa v. Willis, 1 A.S.R. 635.

Imprisonment in Samoa is construed to mean imprisonment at hard labor during whole or any part of sentence. Akeimo v. Mulu, 2 A.S.R. 89.

Court may take into consideration fact accused thought he was excused from searching for beetle by chief in mitigation of sentence for violating statute requiring such search. Government v. Si’u, 3 A.S.R. 479.

According to law, felony is a crime which is punishable by death or imprisonment for life or more than one year, and all other crimes are misdemeanors. (CAS 801.) Government v. Palafu, 3 A.S.R. 556.

Sentence of 30 years at ordinary labor for second degree murder is less than maximum life imprisonment provided by law and cannot as matter of law be considered unreasonable or excessive punishment. (CAS 4.0453.) Fanene v. Government, 4 A.S.R. 957.

The reasons for imprisonment include preventing the defendant from committing other crimes, rehabilitation, deterrence of others, and punishment. Am. Samoa Gov’t v. To’oto’o, 2 A.S.R.2d 86 (App. Div. 1985).

Although no crimes or criminals are identical, similar crimes committed by similar defendants should receive similar sentences. Am. Samoa Gov’t v. To’oto’o, 2 A.S.R.2d 86 (App. Div. 1985).

Insofar as T.C.R.Cr.P. 35 purports to extend or abolish the mandatory deadline for alleging errors of law in a criminal sentence, it is in direct conflict with the statute; as such, the statute must prevail over the judge-made rule. A.S.C.A. § 43.2402(a). T.C.R.Cr.P. 35. American Samoa Gov’t v. Falefatu, 17 A.S.R.2d 114.

The Court may correct an illegal sentence at any time. T.C.R.Cr.P. 35. American Samoa Gov’t v. Falefatu, 17 A.S.R.2d 114.

Although T.C.R.Cr.P. 35 is derived, almost verbatim, from the Federal Rules of Criminal Procedure, the federal courts are not subject to a statutory, jurisdictional limitation such as applies to the High Court of American Samoa. A.S.C.A. § 43.2402(a); T.C.R.Cr.P. 35; Fed. R. Crim. P. 35. American Samoa Gov’t v. Falefatu, 17 A.S.R.2d 114.

A bill of attainder and ex post facto law, under Rev. Const. Am. Samoa, art. 1, § 13, apply only to criminal laws. In Re Matai Title “Mulitauaopele”, 29 A.S.R.2d 169.

A bill of attainder imposes punishment without judicial process. In Re Matai Title “Mulitauaopele”, 29 A.S.R.2d 169.

An ex post facto law creates a crime out of an innocent act when it was committed or applies a harsher penalty than the one in force when a criminal act was committed. In Re Matai Title “Mulitauaopele”, 29 A.S.R.2d 169.

T.C.R.Cr.P. 35(a), which states that an illegal sentence may be corrected at any time, conflicts with and must give way to A.S.C.A. § 46.2402, which requires that a motion for new trial shall be filed within ten days after entry of the judgment or sentence. American Samoa Gov’t v. Leiataua, 30 A.S.R.2d 157.

The sentencing court may take into account retributive goals as well as rehabilitative goals, when framing an appropriate sentence. American Samoa Gov’t v. Tua`ililiu, 30 A.S.R.2d 151.

A judgment and sentence entered over 10 years ago is final and not open to further reconsideration by the sentencing court. Any relief from sentence, in the way of commutation, lies exclusively within the executive’s competence. See Section 9, Art. IV, Rev`d. Const. of Am. Samoa. A.S.G. v. Adams, 31 A.S.R.2d 112.

The intended deterrent effect of the sentence in a criminal case is of paramount importance. American Samoa Gov’t v. Pu’aa, 1 A.S.R.3d 170 (Trial Div. 1997).

The term “custody”, used in A.S.C.A. § 22.0223, is not statutorily defined and its common meaning is broader than “confinement” which is limited to detention in a penal institution. Sagapolutele v. American Samoa Gov’t, 3 A.S.R.3d 34 (App. Div. 1999).

The common law has traditionally allowed courts the discretion to combine confinement with probation, work release and other alternatives as opposed to mandating straight confinement. Sagapolutele v. American Samoa Gov’t, 3 A.S.R.3d 34 (App. Div. 1999).

Where statute required convicted offender to spend at least 90 days in custody, court could, at its discretion fashion a sentence which included work release or other sentencing alternatives. Sagapolutele v. American Samoa Gov’t, 3 A.S.R.3d 34 (App. Div. 1999).

The sentencing court’s dispositional options under A.S.C.A. § 13.1022 are substantially limited, and probation is not an appropriate disposition there. Isaia v. Am. Samoa Gov’t, 6 A.S.R.3d 3 (App. Div. 2002).

The power to commute sentences is reserved to the Governor under Article IV, Section 9 of the Revised Constitution of American Samoa. The Court may not, pursuant to a writ of habeas corpus or otherwise, commute a prisoner’s sentence. Siaumau v. Am. Samoa Gov’t, 7 A.S.R.3d 130 (Trial Div. 2003).

§ 7(2) —Cruel & Unusual Punishment

Requiring prisoners to perform road work does not inflict cruel and unusual punishment. U.S. Const. Amend. VIII. American Samoa Gov’t v. Agasiva, 6 A.S.R.2d 32.

Allegations that prison officials treated different inmates differently were neither proved nor entitled to judicial consideration. American Samoa Gov’t v. Agasiva, 6 A.S.R.2d 32.

The mere fact that a person who has committed a serious crime is required for that reason to return to his own country is not, absent extraordinary circumstances, either cruel or unusual. U.S. Const., Amend. VIII. American Samoa Gov’t v. Falefatu, 17 A.S.R.2d 114.

§ 7(3) —Miscellaneous Constitutional Restrictions

A prison may not constitutionally impose compulsory religious observances, but their imposition does not justify a prisoner’s escape. Am. Samoa Gov’t v. Taufoou, 2 A.S.R.2d 25 (Trial Div. 1984).

Blanket imposition of religious programs on unconsenting inmate violates establishment and freedom of religion clauses of both federal and territorial constitutions. U.S. Const. Amend. I; Rev’d Const. Am. Samoa art. I, § I.. American Samoa Gov’t v. Agasiva, 6 A.S.R.2d 32.

Prisoners have a constitutional right of access to the courts and a right of access to a threshold level of legal information or aid. Since the High Court maintains the only public law library in the Territory, where an incarcerated criminal defendant is proceeding pro se, the prisoner’s demand for access to the High Court library is legitimate. However, the prisoner is not constitutionally guaranteed unlimited access to the law library. Security considerations and avoidance of abuse may require the prisoner to accept occasional, but regular access to the library rather than access according to his whim. The prisoner is only entitled to a reasonable amount of time to use the library. Adams v. Reavis, 1 A.S.R.3d 104 (Trial Div. 1997).

§ 7(4) —Deportation

Although federal courts have generally held that it is beyond the power of a sentencing court to order that the defendant leave the jurisdiction, such orders have been a regular feature of criminal sentences in American Samoa for many years. American Samoa Gov’t v. Falefatu, 17 A.S.R.2d 114.

Criminal convictions are proper grounds for deportation. A.S.C.A. § 41.0616(4), (6), (9), (10), (11), (16); 8 U.S.C. § 1251(a)(5), (11), (14), (15), (16). American Samoa Gov’t v. Falefatu, 17 A.S.R.2d 114.

A person who has been “convicted of a crime involving moral turpitude committed within 5 years after any entry” is deportable; if he were outside the territory, he would be excludable as a convicted felon. A.S.C.A. §§ 41.0615(8), 41.0617(4). American Samoa Gov’t v. Falefatu, 17 A.S.R.2d 114.

§ 7(5) —Probation

§ 7(5)(a) —Generally

Probation’s public protection purpose includes the protection of particular people from the probationer, as well as deterring the probationer from future misconduct. American Samoa Gov’t v. Falefatu, 17 A.S.R.2d 114.

Under the 1987 amendment to the probation statute, sentencing judges are free to impose probation for reasons other than the rehabilitation-related provisions of the statute. A.S.C.A. §§ 46.2203, 46.2206. American Samoa Gov’t v. Falefatu, 17 A.S.R.2d 114.

Unless otherwise provided in penalty enactments of Title 46, sentencing court in its discretion may find that appropriate disposition of particular case should involve probation rather than simply imprisonment. Isaia v. Am. Samoa Gov’t, 6 A.S.R.3d 3 (App. Div. 2002).

Misconduct by a probationer who has served a period of detention but not completed his full term of probation may be sanctioned by the supervising court, and may be required to serve all or part of the remaining probation term in detention. Pedro v. Am. Samoa Gov’t, 6 A.S.R.3d 27 (App. Div. 2002).

A.S.C.A. § 13.1022 excludes probation from the court’s sentencing options. Williams v. Am. Samoa Gov’t, 6 A.S.R.3d 35 (App. Div. 2002).

§ 7(5)(b)—Terms of Probation

Sentencing court may require convicted defendant to serve multiple periods of detention as conditions of multiple terms of probation, but the periods of detention must be served concurrently and the aggregate period of detention cannot exceed the statutory maximum. A.S.C.A. §§ 46.2206, 46.2207. American Samoa Gov’t v. Masaniai, 6 A.S.R.2d 114.

The Court’s power over probationers is strictly limited to the term of the probation, which may not exceed five years. A.S.C.A. § 46.2204. American Samoa Gov’t v. Falefatu, 17 A.S.R.2d 114.

A.S.C.A. § 46.2204(a)(1), which provides limitations on the terms during which probation may remain conditional, and A.S.C.A. §46.2206(2), which makes provisions for terms of detention during probation, are in pari materia but are not in contradiction; the former governs the length of time during which a defendant’s probation may be revoked, and the latter limits the duration of incarceration during a defendant’s probation, and so these statutes are non-contradictory, harmonious, and therefore valid. American Samoa Gov’t v. Alo, 2 A.S.R.3d 91 (Trial Div. 1998).

The “term” of probation is the length of a defendant’s probation as determined by the sentencing court within the maximum limits established by statute. Pedro v. Am. Samoa Gov’t, 6 A.S.R.3d 27 (App. Div. 2002).

The statutes do not provide any clear grant of authority for the courts to enlarge a probation terms. Pedro v. Am. Samoa Gov’t, 6 A.S.R.3d 27 (App. Div. 2002).

Unless earlier terminated by the court, the term of probation generally expires at the end of its duration. Pedro v. Am. Samoa Gov’t, 6 A.S.R.3d 27 (App. Div. 2002).

The law authorizes the court under certain circumstances to discharge a defendant from the conditions of probation prior to the expiration of his term of probation. Pedro v. Am. Samoa Gov’t, 6 A.S.R.3d 27 (App. Div. 2002).

A.S.C.A. § 46.2209 only allows modification or enlargement of conditions of probation, not the length of the term of probation. Pedro v. Am. Samoa Gov’t, 6 A.S.R.3d 27 (App. Div. 2002).

The statutory powers of the court to enforce conditions of probation must be initiated (or made manifest) prior to the expiration of the term of probation. Pedro v. Am. Samoa Gov’t, 6 A.S.R.3d 27 (App. Div. 2002).

Probation cannot remain “conditional” beyond the maximum term. Pedro v. Am. Samoa Gov’t, 6 A.S.R.3d 27 (App. Div. 2002).

§ 7(5)(c)—Conditions of Probation

Release of prisoner within two weeks after court had sentenced him to a year of detention as condition of probation, whether called a furlough, work release, reward for good behavior, compassionate leave, or by another label, violated statutes and court order. American Samoa Gov’t v. Doletorts, 3 A.S.R.2d 63

Prisoner serving a term of detention as a condition of probation was under the direct jurisdiction of the court, which had the power to prescribe conditions of detention. American Samoa Gov’t v. Masaniai, 5 A.S.R.2d 152.

Where court had ordered that prisoner not be allowed to leave correctional facility without permission of the court except for emergency medical treatment, prison officials had no authority to allow prisoner to appear in court for post conviction motions without requesting permission of court. American Samoa Gov’t v. Masaniai, 5 A.S.R.2d 152.

Court’s purpose in imposing detention as a condition to probation, during which jurisdiction over the prisoner remains with the High Court rather than with prison officials, is to enable the court to monitor and control the extent to which prisoners are allowed to leave the correctional facility. American Samoa Gov’t v. Masaniai, 5 A.S.R.2d 152.

Amendment to probation statute, allowing court to impose detention as a condition of probation for up to one-third of the maximum term of imprisonment, was intended to give court the power to prevent the early release of dangerous criminals. A.S.C.A. § 46.2206. American Samoa Gov’t v. Peni Samana, 8 A.S.R.2d 1.

Parole and conditional probation statutes provide two alternative modes of sentencing, with the mandatory period of detention limited to one-third of the sentence in both cases but conditional probation statute allowing the court to exercise greater control over the conditions of detention. A.S.C.A. §§ 46.2206, 46.2304, 46.2701 et seq. American Samoa Gov’t v. Peni Samana, 8 A.S.R.2d 1.

Statute allowing court to impose detention as a condition of probation did not violate the constitutional provision allowing governor to grant pardons, since any prisoner pardoned by the governor could no longer be incarcerated. Rev. Const. Am. Samoa art. IV § 9; A.S.C.A. § 46.2206. American Samoa Gov’t v. Peni Samana, 8 A.S.R.2d 1.

Where probation statute originally provided that probation could be imposed only in cases where incarceration was not necessary for the protection of the public, and also provided that a brief period of detention could be imposed as a condition of probation, but statute was later amended to provide that such detention could be imposed for up to fifteen years, the later enactment implicitly amended the earlier; court could therefore impose detention as a condition of probation not only for the purpose of rehabilitation, but also where incarceration was deemed necessary for the protection of the public. A.S.C.A. §§ 46.2203, 46.2206. Atuatasi v. American Samoa Gov’t, 9 A.S.R.2d 67.

There is no inconsistency in suspending a “sentence of imprisonment” while simultaneously imposing “detention” as a condition of probation, where statutes use these terms to denote two alternative modes of sentencing. A.S.C.A. §§ 46.2206, 46.2301 et seq. Atuatasi v. American Samoa Gov’t, 9 A.S.R.2d 67.

The High Court has continuing jurisdiction to terminate or modify the conditions of probation throughout the entire term of probation. A.S.C.A. § 46.2205. American Samoa Gov’t v. Falefatu, 17 A.S.R.2d 114.

An untimely motion for a new trial was construed to be one to terminate conditions of probation. A.S.C.A. § 46.2205. American Samoa Gov’t v. Falefatu, 17 A.S.R.2d 114.

The High Court has the power to impose detention as a condition of probation for a period equivalent to one-third of the maximum sentence of imprisonment authorized by law. A.S.C.A. § 46.2206. American Samoa Gov’t v. Falefatu, 17 A.S.R.2d 114.

Conditions of probation are valid if they are reasonably related either to rehabilitation or to public protection, at least if the entire sentence considered as a whole was reasonably calculated to achieve both of these purposes. A.S.C.A. § 46.2205. American Samoa Gov’t v. Falefatu, 17 A.S.R.2d 114.

In imposing conditions of probation, the sentencing judge is well-situated to know whether a particular offender needs to be insulated from his past environment, his associates, his victim, or those who assisted in his prosecution, as well as the best methods to assure such insulation. American Samoa Gov’t v. Falefatu, 17 A.S.R.2d 114.

Requiring a probationer to reside in a certain place may be imposed for the protection of the public, particularly the victim and others who may have assisted in the prosecution, and to remove the defendant from an environment found to have contributed to his criminal behavior. American Samoa Gov’t v. Falefatu, 17 A.S.R.2d 114.

In a criminal case, a court may require a defendant to leave the territory as a condition of probation and may impose other probationary conditions reasonably related to the purposes of probation beyond those conditions enumerated in the statute. A.S.C.A. §§ 41.0614, 46.2205. American Samoa Gov’t v. Salu, 22 A.S.R.2d 48.

Although increasing a criminal penalty is to subject the defendant to double punishment for the same offense in violation of the Fifth Amendment to the United States Constitution, the court may modify a period of detention ordered as a condition of probation in view of changed circumstances. American Samoa Gov’t v. Leiataua, 30 A.S.R.2d 93.

“Conditions” of probation are those requirements established by the court for the defendant to follow during part or all of the term of probation. Pedro v. Am. Samoa Gov’t, 6 A.S.R.3d 27 (App. Div. 2002).

Detention during the term of probation is designated by statute as a permissible condition of probation. Pedro v. Am. Samoa Gov’t, 6 A.S.R.3d 27 (App. Div. 2002).

Conditions of probation may generally be revoked or modified at any time by the court. Pedro v. Am. Samoa Gov’t, 6 A.S.R.3d 27 (App. Div. 2002).

Where a defendant violates a condition of probation prior to the expiration or termination of his probation term, the court may revoke probation and either require execution of a previously suspended sentence, impose an authorized sentence upon a defendant, or continue the defendant on probation with existing, modified or enlarged conditions of probation. Pedro v. Am. Samoa Gov’t, 6 A.S.R.3d 27 (App. Div. 2002).

A.S.C.A. § 46.2209 only allows modification or enlargement of conditions of probation, not the length of the term of probation. Pedro v. Am. Samoa Gov’t, 6 A.S.R.3d 27 (App. Div. 2002).

Probation cannot remain “conditional” beyond the maximum term. Pedro v. Am. Samoa Gov’t, 6 A.S.R.3d 27 (App. Div. 2002).

§ 7(6) —Parole

Employee of Attorney General may make recommendation to Parole Board for reduction of sentence. (CAS 4.0203.) Fanene v. Government, 4 A.S.R. 957.

Powers of pardon and parole granted to executive by statutes and constitution do not give the executive carte blanche to ignore court orders and sentences. American Samoa Gov’t v. Doletorts, 3 A.S.R.2d 63.

Where prisoner had not served one-third of his sentence of imprisonment, parole board had no jurisdiction to entertain his application for parole, and parole board order was of no legal effect. A.S.C.A. §§ 46.2304, 46.2702. Atuatasi v. Moaali`itele, 8 A.S.R.2d 53.

Where one section of parole statute provided that parole should not be given unless institutional confinement is deemed unnecessary, and later amendment to another section of the statute was clearly designed to allow court to impose probation and conditional detention in certain cases where confinement is deemed necessary, the general rule stated in the earlier provision does not operate as a limitation on the power granted by the later provision. A.S.C.A. §§ 46.2203, 46.2206. American Samoa Gov’t v. Peni Samana, 8 A.S.R.2d 1.

Statute providing for parole of prisoner who has served one-third of his sentence of imprisonment has no application to probationer whose sentence of imprisonment has been suspended and who is serving a term of detention, for a period no greater than one-third of the suspended sentence of imprisonment, as a condition of his probation. A.S.C.A. §§ 46.2203, 46.2206(3), 46.2209. American Samoa Gov’t v. Peni Samana, 8 A.S.R.2d 1.

Prisoner whose sentence of imprisonment was suspended but who was required to serve a term of detention as a condition of probation, under a statute providing that such term could be no greater than one-third of the suspended sentence of imprisonment, was not unfairly deprived of the opportunity to apply for parole, since he would be released from detention on the same day that he would otherwise have been eligible to apply for parole. A.S.C.A. §§ 46.2206, 46.2304, 46.2701 et seq. American Samoa Gov’t v. Peni Samana, 8 A.S.R.2d 1.

Warden who released prisoner in violation of court order, on the authority of invalid order of parole board, was in continuing violation of court order for as long as the prisoner remained at large. American Samoa Gov’t v. Peni Samana, 8 A.S.R.2d 1.

Prisoner who was sentenced to detention as a condition of probation, under statute limiting such conditional detention to one-third of the maximum prescribed term of imprisonment for the crime of which he was convicted, was not arbitrarily denied access to parole where under parole statute he would have been required to serve one-third of his sentence before becoming eligible for parole. A.S.C.A. §§ 46.2206, 46.2304(a)(1). Atuatasi v. American Samoa Gov’t, 9 A.S.R.2d 67.

§ 7(7) —Parole Revocation

Parole revocation process may be flexible enough to consider evidence including letters, affidavits, and other material that would not be admissible in an adversary criminal trial. American Samoa Gov’t v. Lam Yuen, 11 A.S.R.2d 118.

Transcript from a preliminary examination may be considered at a parole revocation hearing. American Samoa Gov’t v. Lam Yuen, 11 A.S.R.2d 118.

When a criminal court imposes a term of imprisonment with execution suspended, the sentence is the term of imprisonment, which does not begin unless and until probation is revoked. This sentence is distinct from any detention that is a condition of probation. American Samoa Gov’t v. Leiataua, 30 A.S.R.2d 157.

Unlike a criminal sentence, the court may modify a detention that is a condition of probation under changed circumstances without finding that the party has violated probation. American Samoa Gov’t v. Leiataua, 30 A.S.R.2d 157.

Although A.S.C.A. § 46.2072(b) does not create strict time parameters for considering or acting upon a parole application, it does plainly indicate that the application must be evaluated “[u]pon receipt.” This language clearly does not permit the Parole Board to unduly delay consideration of a parole application in order to get several hearings out of the way at the same time, or for other reasons of convenience. American Samoa Gov’t v. Adams, 29 A.S.R.2d 160.

The decision by the Board of whether or not to release a prisoner on parole is a discretionary matter. American Samoa Gov’t v. Adams, 29 A.S.R.2d 180.

This list of three conditions of release is not a comprehensive enumeration of what may be required, but is instead an enumeration of the minimum requirements. The statutory language is inclusive and not preclusive, and the Board is free to place other conditions upon parole which it finds “reasonable,” as long as the enumerated minimum requirements are included. American Samoa Gov’t v. Adams, 29 A.S.R.2d 180.

Where parole has been revoked, the parole violator serves not only the balance of his unexpired prison term but also, as an additional prison term, all of his or her parole term. Pedro v. Am. Samoa Gov’t, 6 A.S.R.3d 27 (App. Div. 2002).

§ 7(8) —Conditions upon Release

Evidence that members of convict’s family had been having economic and psychological problems since his incarceration was insufficient to justify his release pending appeal, where the crimes of which he had been convicted were serious felonies involving sexual abuse of a minor child, his behavior in connection with the crimes and the subsequent proceedings had been characterized by violence and other revenge against family members, and the appeal schedule had been accelerated so as to minimize the period of detention between conviction and appellate review. American Samoa Gov’t v. Masaniai, 5 A.S.R.2d 143.

Court that ordered defendant released from mental institution, to which he had been committed after being found not guilty of first degree murder by reason of insanity, did not act unconstitutionally in imposing conditions (1) that he reside with his wife in Los Angeles unless granted permission by the court to reside elsewhere; (2) that he refrain from use of alcohol; and (3) that he consult with a physician periodically. American Samoa Gov’t v. Satele, 7 A.S.R.2d 154.

Court order permitting release of a prisoner should not be construed to require the release of the prisoner when such release would be contrary to the best judgment of the commissioner of public safety and when defendant’s counsel had not informed the court that release had been denied by the commissioner. American Samoa Gov’t v. Felise (Mem.), 11 A.S.R.2d 132.

Attempts by warden and prisoner to cover their tracks, by omitting any record of the prisoner’s comings and goings from the prison log book and by lying in court when asked whether the prisoner had been released, were inconsistent with their contentions that they had not fully understood the court’s order prohibiting release of the prisoner. American Samoa Gov’t v. Laumoli, 12 A.S.R.2d 111.

Where defendant had been found not guilty by reason of insanity of two murder charges, trial judge’s conclusions that a controlled environment was necessary to minimize the risk that the defendant’s dangerous condition would recur was supported in the record, and new evidence purporting to show that defendant was no longer dangerous was based primarily on defendant’s physical weakness and lack of co‑ordination, court could not conclude that defendant would no longer be dangerous if released into the general population. American Samoa Gov’t v. Satele, 14 A.S.R.2d 95.

In light of the Court’s concern about defendant’s proximity to the victim, evidence supporting a request for work release should include the testimony or affidavit of the proposed employer setting forth the terms of employment; the testimony or affidavit of the Warden of the Correctional Facility indicating whether the defendant is, in his judgment, a good candidate for work release; and testimony of the Child Protection officials who have been counseling the victim and her family. American Samoa Gov’t v. Li`a, 16 A.S.R.2d 23.

The Commissioner of Public Safety does not possess unbridled discretion to release willy nilly persons sentenced by the court to a term of imprisonment at the Territorial Correctional Facility. See A.S.C.A. § 46.2303(c). A.S.G. v. Ki, 31 A.S.R.2d 118.

§ 7(9) —Work Release

A.S.C.A. § 46.2521 vests supervision of the work release program at the Territorial Correctional Facility with the Warden and therefore the Court lacks authority to grant work release pursuant to a writ of habeas corpus. Siaumau v. Am. Samoa Gov’t, 7 A.S.R.3d 130 (Trial Div. 2003).

§ 8 Post-Verdict Motions

§ 8(1) —Motion for New Trial

New trial will not be granted because of absence of witness unless absence was ground of application for continuance or valid excuse is given for not having made application. Tigi v. Government, 4 A.S.R. 902.

Party cannot speculate on winning a favorable verdict despite absence of witness and when failing, successfully ask for new trial. Tigi v. Government, 4 A.S.R. 902.

A motion for new trial is addressed to the sound discretion of the trial court and trial court’s decision will not be overturned on review except upon manifest abuse. Am. Samoa Gov’t v. To’oto’o, 2 A.S.R.2d 61 (App. Div. 1985).

A motion for a new trial in a criminal case “shall be filed within 10 days after the announcement of judgment or sentence.” A.S.C.A. § 46.2402(a). American Samoa Gov’t v. Falefatu, 17 A.S.R.2d 114.

The ten-day time limit to file a motion for a new trial is mandatory and jurisdictional; errors of law not raised within ten days of judgment or sentence are waived, at least insofar as they concern the right to appeal. A.S.C.A. §§ 43.0802(a), 46.2402(a). American Samoa Government v. Falefatu, 17 A.S.R.2d 114.

The formal style or caption of a motion for a new trial is not essential to fulfill the statutory requirement; nor must the motion specifically request a new trial rather than some lesser or different form of relief, as long as the asserted errors are susceptible of such relief. A.S.C.A. §§ 43.0802(a), 46.2402(a). American Samoa Government v. Falefatu, 17 A.S.R.2d 114.

What is essential to a motion for a new trial is that it be filed within the statutory period and that it fully apprises the court of the asserted errors in the judgment or sentence, so that the trial court may consider for itself whether any such errors occurred and make appropriate corrections. American Samoa Gov’t v. Falefatu, 17 A.S.R.2d 114.

In the context of a motion for a new trial, the purpose of this particularity requirement is to avoid unnecessary appeals by giving the trial court itself a chance to correct any errors it may have made. Toleafoa v. American Samoa Gov’t, 26 A.S.R.2d 20.

T.C.R.Cr.P. Rule 33 provides that the court, on a defendant’s motion, may grant a new trial if required in the interest of justice. When the court considers such a motion, the burden is on a convicted defendant to show that some error was committed and that error was prejudicial to him. American Samoa Gov’t v. Snow, 26 A.S.R.2d 78.

The 10-day time period mandated by A.S.C.A. § 46.2402(a) for filing a motion for new trial does not begin to accrue until the defendant is sentenced. American Samoa Gov’t v. Tiumalu, 28 A.S.R.2d 136.

The court will treat a motion for new trial, which was filed after verdict but before sentencing, as being timely filed. American Samoa Gov’t v. Tiumalu, 28 A.S.R.2d 136.

Under T.C.R.Cr.P. 33, the court can grant a new trial to a defendant “if required in the interest of justice.” American Samoa Gov’t v. Suani, 29 A.S.R.2d 189.

Although it is within the court’s discretion whether to grant a new trial, the court will not do so unless it has clearly erred in its findings or conclusions during the original trial. American Samoa Gov’t v. Suani, 29 A.S.R.2d 189.

A finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. American Samoa Gov’t v. Suani, 29 A.S.R.2d 189.

A new trial may be granted to a criminal defendant if required in the interests of justice. American Samoa Gov’t v. Samana, 2 A.S.R.3d 58 (Trial Div. 1998).

Except under special circumstances, the rules of criminal procedure do not allow a defendant to continually raise new arguments after others fail, and where a motion is styled as one for reconsideration, but actually seeks a de novo hearing to present new evidence, it goes beyond the bounds of a motion for new trial/reconsideration. American Samoa Gov’t v. Pearson, 2 A.S.R.3d 102 (Trial Div. 1998).

A motion for new trial/reconsideration is designed to give the trial court the opportunity to correct errors and make appropriate changes, if necessary, in order to obviate unnecessary appeals. American Samoa Gov’t v. Pearson, 2 A.S.R.3d 102 (Trial Div. 1998).

In reviewing a motion for new trial, the court has broad power to grant relief. It is within the court’s discretion to weigh the evidence and consider the credibility of the witnesses. Am. Samoa Gov’t v. Ropati, 7 A.S.R.3d 69 (Trial Div. 2003).

A new trial should be granted only if it is in the interest of justice, and when a court finds there to have been no legal errors, there is no reason to grant such motion. Am. Samoa Gov’t v. Ropati, 7 A.S.R.3d 69 (Trial Div. 2003).

§ 8(2) —Motion for Arrest of Judgment

RESERVED

§ 8(3) —Motion to Vacate Sentence

Although a defendant cannot be convicted of a crime unless the evidence establishes his guilt beyond a reasonable doubt, a conviction should not be vacated merely because at some time after the conviction the accumulation of evidence against the defendant falls slightly below this standard. American Samoa Gov’t v. Masaniai, 4 A.S.R.2d 183.

That a complaining witness in a sexual assault case later recants her testimony does not of itself require that the conviction be vacated. American Samoa Gov’t v. Masaniai, 4 A.S.R.2d 183.

Conviction of father for sex crimes against his minor daughter should not be vacated on account of later statement by the complaining witness that she had testified falsely at trial, at least where (1) other witnesses reaffirmed their testimony concerning defendant’s admissions and (2) court concluded from testimony and demeanor of complaining witness that she had testified truthfully at trial and had been moved to recant only because of pressure from her family and a desire to help her father. American Samoa Gov’t v. Masaniai, 4 A.S.R.2d 183.

§ 8(4) —Motion to Correct or Reduce Sentence

Motion for reduction of sentence must be made within 120 days of sentencing; this time limit cannot be extended. T.C.R.Cr.P. Rules 35, 45. American Samoa Gov’t v. Tile, 8 A.S.R.2d 120.

§ 8(5) —Stays of Proceedings

In determining whether a legal question is substantial enough to grant a stay of execution of a criminal sentence or release pending appeal, a substantial question is a close question or one that very well could be decided the other way. American Samoa Gov’t v. Leiataua, 30 A.S.R.2d 130.

Because the language of A.S.C.A. § 46.2401 is weighted against granting a stay of execution of a criminal sentence, a person seeking a stay bears the burden of showing that a close question of law exists. American Samoa Gov’t v. Leiataua, 30 A.S.R.2d 130.

When two criminal sentences are identical and are running concurrently, the upholding of one is sufficient to deny the stay of execution without examination of the other. American Samoa Gov’t v. Leiataua, 30 A.S.R.2d 130.

§ 8(6) —Habeas Corpus & Conditions of Confinement

Actual custody is not necessary for habeas corpus relief. Tumui v. Fa’alevao, 2 A.S.R.2d 33 (Trial Div. 1983).

Habeas corpus proceeding serves to question the lawfulness of a conviction and confinement, not the merits of the underlying criminal charge, and such a proceeding must not be used as substitute for appeal. Suisala v. Moaali’itele, 6 A.S.R.2d 15.

Under the rule requiring court to read pleadings broadly when necessary to promote justice, court would view prisoner’s second motion for reduction of sentence as a petition for habeas corpus rather than dismissing it as a repetition of previously denied motion. T.C.R.C.P. Rule 8(f). American Samoa Gov’t v. Agasiva, 6 A.S.R.2d 32.

Counsel’s failure to file a requested appeal of a criminal conviction violates defendant’s right to effective assistance of counsel, justifies habeas corpus relief without a showing by defendant of prejudice or doubtfulness of guilt, and entitles defendant to an out-of-time appeal. U.S. Const. Amend. VI. American Samoa Gov’t v. Agasiva, 6 A.S.R.2d 32.

While the judiciary cannot ordinarily employ writ of habeas corpus to review prison management or the conditions of a prisoner’s otherwise lawful confinement, exceptional prison circumstances rising to the level of constitutional deprivations are within the court’s jurisdiction. American Samoa Gov’t v. Agasiva, 6 A.S.R.2d 32.

Prisoner was entitled to habeas corpus relief from prison conditions that placed him in danger of grave physical and psychological harm. American Samoa Gov’t v. Agasiva, 6 A.S.R.2d 32.

Territorial government, having taken a person into custody and sought his commitment on the ground that he was a danger to himself and others, had an obligation to provide adequate treatment for his condition. American Samoa Gov’t v. Tofiga, 14 A.S.R.2d 30.

The Government’s right to hold a prisoner gives rise to a correlative duty to protect that prisoner against assault and injury, especially when the prisoner is an immigration detainee who has been convicted of no crime. Rakhshan v. Tuilefano, 18 A.S.R.2d 18.

A prisoner detained for immigration purposes is entitled to relief from conditions of confinement that include exposure to other inmates of proven vicious temperament. Rakhshan v. Tuilefano, 18 A.S.R.2d 18.

It is not unreasonable to confine an immigration detainee and other non-dangerous inmates within an enclosed building for two hours a day while a dangerous inmate exercises and attends religious services. Rakhshan v. Tuilefano, 18 A.S.R.2d 46.

When a dangerous inmate threatens other inmates, he and not the others, should be isolated. Rakhshan v. Tuilefano, 18 A.S.R.2d 46.

The Government has the discretion to save money by detaining inmates in the Tafuna Correctional Facility, rather than in a high-security institution in the United States, provided that it can do so without violating its constitutional and legal obligations to protect fellow inmates and members of the general public from those whom it has taken within its custody. Rakhshan v. Tuilefano, 18 A.S.R.2d 46.

The writ of habeas corpus or “the great writ” is to provide “immediate relief from illegal detention.” Suisala v. Moaali`itele, 6 A.S.R 2d 15, 18 (Trial Div. 1987). Habeas corpus is not a vehicle for the courts to inquire into management of the prison system, unless “exceptional circumstances” rise to the level of “constitutional deprivation.” American Samoa Gov’t v. Adams, 29 A.S.R.2d 160.

When an incarcerated criminal must leave the jurisdiction of the court in order to receive the specialized medical diagnosis then indicated, the medical release gives the person a temporary reprieve from the period of detention and dilutes the punishment, rehabilitative, and deterrent aspects of the detention. The addition of one half-day of detention, or more if appropriate, for every day of release from detention is intended to strengthen the detention objectives in a way that is rationally related to the manner in which it was weakened by the reprieve from detention. American Samoa Gov’t v. Leiataua, 30 A.S.R.2d 93.

When an incarcerated criminal must leave the jurisdiction of the court in order to receive the specialized medical diagnosis then indicated and the person further weakens the detention purposes by needlessly prolonging the stay in outside the jurisdiction, added detention time may aim at inducing the criminal to complete medical tests and return to American Samoa in a timely manner. American Samoa Gov’t v. Leiataua, 30 A.S.R.2d 93.

The court has jurisdiction on matters of prison administration, an executive function based on our inherent jurisdiction to ensure that the court’s process is properly enforced and not negated through arbitrary executive action. A.S.G. v. Ki, 31 A.S.R.2d 118.

The Revised Constitution of American Samoa provides for the writ of habeas corpus under Article I, Section 7. Siaumau v. Am. Samoa Gov’t, 7 A.S.R.3d 130 (Trial Div. 2003).

The writ of habeas corpus provides immediate relief from illegal detention. Siaumau v. Am. Samoa Gov’t, 7 A.S.R.3d 130 (Trial Div. 2003).

Where prisoner moved for writ of habeas corpus, court properly considered only the term of imprisonment under which he was currently serving, not additional terms which he was to serve in the future and which were consecutive to his present one. Siaumau v. Am. Samoa Gov’t, 7 A.S.R.3d 130 (Trial Div. 2003).

Habeas corpus is not a vehicle for the courts to inquire into management of the prison system, unless “exceptional circumstances” exist, rising to the level of a “constitutional deprivation.” Siaumau v. Am. Samoa Gov’t, 7 A.S.R.3d 130 (Trial Div. 2003).

§ 8(7) —Post Verdict Motions Generally

A defendant’s rights under the Sixth Amendment to the United States Constitution and Article I, section 14 of the Revised Constitution of American Samoa to be present at trial does not entitle a defendant to be present at post-judgment motions. Am. Samoa Gov’t v. Vaitautolu, 2 A.S.R.2d 70 (Trial Div. 1985).

The Trial Division of the High Court lacks any authority to overturn final judgments and sentences in criminal matters. Any relief from the judgment and sentence is exclusively within the executive’s authority through commutation, reprieve or pardon. A.S.G. v. McKenzie, 31 A.S.R.2d 151.

§ 9 Appeals

§ 9(1) —Generally

Evidence supports appellant’s knowledge of right to appeal and lack of desire to appeal. Fanene v. Government, 4 A.S.R. 957.

Trial court rule authorizing the government to file a new criminal complaint for the same offense after dismissal of the complaint by district court for lack of probable cause provided government with an adequate remedy where government claimed the complaint should not have been dismissed. T.C.R.Cr.P. 5.1(b). American Samoa Gov’t v. District Court, 10 A.S.R.2d 18.

Appellate court could not assume, from the mere fact of dismissal of criminal complaints by the district court that dismissal resulted from misconstruction of a statute rather than the insufficiency of the evidence. A.S.C.A. § 46.2405(a)(1). American Samoa Gov’t v. Hirata, 12 A.S.R.2d 22.

Where defendant asserts a right, which is or includes a right not to bear the burden of the suit itself, regardless of the outcome, he may immediately appeal a denial of that right under the collateral order exception. Kim v. American Samoa Gov’t, 17 A.S.R.2d 193.

Under A.C.R. 10(b)(2), the appellant is required to provide the Appellate Division with record adequate to permit a fair and adequate review. Faifaiese v. Am. Samoa Gov’t, 6 A.S.R.3d 10 (App. Div. 2002).

§ 9(2) —Power of Appellate Court

It is not province of appellate court to determine credibility of conflicting evidence, since presumption is in favor of verdict, and appellate court will not interfere when evidence is conflicting, if there is material evidence to support verdict such as admission by defendant himself that he was owner of pig which went astray in violation of criminal statute. American Samoa v. Makuati, 1 A.S.R. 663.

Ordinarily it is not within province of appellate court to determine credibility of conflicting evidence since presumption is in favor of verdict and appellate court will not interfere when evidence is conflicting if there is material evidence tending to support verdict. American Samoa v. Sale, 2 A.S.R. 635.

In case of appeals from District Court, Appellate Division of the High Court may review facts as well as law, and in criminal appeals, appellate court may set aside judgment of conviction, order new trial, commute, reduce, or suspend execution of sentence. Fe’a v. Government, 3 A.S.R. 496.

Appellate court may commute, reduce (but not increase) or suspend execution of sentence. (CAS 3.0503) Tigi v. Government, 4 A.S.R. 894.

Appellate court will use authority to reduce or modify sentence. (CAS 3.0503) Tigi v. Government, 4 A.S.R. 902.

Power of Appellate Division to reduce or suspend execution of sentence is only present when timely appeal is filed. (CAS 3.0503) Fanene v. Government, 4 A.S.R. 957.

Order on appeal is effectively unreviewable when a showing of prejudice to the defense is required to obtain a reversal. Kim v. American Samoa Gov’t, 17 A.S.R.2d 193.

Appellate court will not set aside trial court’s findings of fact in absence of clear error. Faifaiese v. Am. Samoa Gov’t, 6 A.S.R.3d 10 (App. Div. 2002).

§ 9(3) —Time for Appeals

In order for Appellate Court to have jurisdiction, Notice of Appeal to Appellate Division of the High Court must be filed within 30 days after judgment of trial court. Fanene v. Government, 4 A.S.R. 957.

Legislative intent to procedural statute is that time for appeals should be limited in manner similar to other jurisdictions. Fanene v. Government, 4 A.S.R. 957.

Although courts of American Samoa apply federal rules only “where it is applicable,” this does not confer upon Appellate Division jurisdiction to extend time for appeal even if special circumstances exist. Fanene v. Government, 4 A.S.R. 957.

American Samoa procedure for appeals from Trial Division to Appellate Division of the High Court incorporates United States Federal Rules’ provisions as to time and procedure. Fanene v. Government, 4 A.S.R. 957.

Where appeal is not taken within time fixed by statute, jurisdiction cannot be conferred upon appellate court by consent of parties or by waivers. Fanene v. Government, 4 A.S.R. 957.

In appeal proceeding there is no right to a transcript without charge after time for appeal has expired. Fanene v. Government, 4 A.S.R. 957.

§ 9(4) —Appellate Jurisdiction

Where appeal is not taken within time fixed by statute, jurisdiction cannot be conferred upon appellate court by consent of parties or by waivers. Fanene v. Government, 4 A.S.R. 957.

It would be inappropriate to grant interim relief on an appealed motion when the court believes it is without jurisdiction of the appeal. Kim v. American Samoa Government, 17 A.S.R.2d 1.

§ 9(5) —Good Faith

Counsel who believes requested appeal of criminal conviction to be frivolous must so advise the court, request permission to withdraw, and file a brief identifying any points in the record that could conceivably support an appeal. American Samoa Gov’t v. Agasiva, 6 A.S.R.2d 32.

In the criminal context, good faith is judged by an objective standard, meaning that an appeal is taken in good faith if it raises a non-frivolous issue. American Samoa Gov’t v. Suani, 30 A.S.R.2d 27.

The burden to prove that a criminal appeal is frivolous rests with the government. American Samoa Gov’t v. Suani, 30 A.S.R.2d 27.

§ 9(6) —Right to Appeal

Statute authorizing the government to appeal from dismissal of criminal complaint where dismissal arose from construction of statute provided government with an adequate remedy for errors of law by district court. A.S.C.A. § 46.2405. American Samoa Gov’t v. District Court, 10 A.S.R.2d 18.

Where statutory right of appeal from alleged errors of law by district court provided government with an adequate remedy, government’s petition to High Court for writ of mandamus should be denied. A.S.C.A. § 46.2405. American Samoa Gov’t v. District Court, 10 A.S.R.2d 18.

Where the government appeals from an order dismissing criminal charges, it must show that dismissal resulted from the misconstruction of the statute upon which prosecution was founded. A.S.C.A. § 46.2405(a)(1). American Samoa Gov’t v. Hirata, 12 A.S.R.2d 22.

§ 9(7) —Appellate Standards of Review

“Plain error” is defined as an error or defect which affects substantial rights. Pule v. American Samoa Gov’t, 1 A.S.R.3d 7 (App. Div. 1997).

A trial court’s factual findings are deferred to unless clearly erroneous. Pua’a v. American Samoa Gov’t, 3 A.S.R.3d 39 (App. Div. 1999).

Under the plain-error standard there must be (1) error, (2) that is plain, and (3) that affects substantial rights. If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error seriously affects the fairness, integrity, or public reputation of the judicial proceedings. Isaia v. Am. Samoa Gov’t, 6 A.S.R.3d 3 (App. Div. 2002).

Appellate court will not set aside trial court’s findings of fact in absence of clear error. Faifaiese v. Am. Samoa Gov’t, 6 A.S.R.3d 10 (App. Div. 2002).

In determining whether the trial court committed clear error, the test is not whether facts in the record may support a decision for an appellant, but whether sufficient evidence supported the trial court’s decision. Faifaiese v. Am. Samoa Gov’t, 6 A.S.R.3d 10 (App. Div. 2002).

An abuse of discretion is a plain error, discretion exercised to an end not justified by the evidence, a judgment that is clearly against the logic and effect of the facts as are found. Faifaiese v. Am. Samoa Gov’t, 6 A.S.R.3d 10 (App. Div. 2002).

Under the abuse of discretion standard, a reviewing court cannot reverse unless it has a definite and firm conviction that the court below committed a clear error of judgment in the conclusion it reached upon weighing of the relevant factors. Faifaiese v. Am. Samoa Gov’t, 6 A.S.R.3d 10 (App. Div. 2002).

An appellate court will not set aside a trial court’s findings of fact in the absence of clear error. Faletogo v. Am. Samoa Gov’t, 6 A.S.R.3d 22 (App. Div. 2002).

An appellate court will not set aside a trial court’s findings of fact in the absence of clear error. Williams v. Am. Samoa Gov’t, 6 A.S.R.3d 35 (App. Div. 2002).

The standard of beyond a reasonable doubt is not treated as an impossible hurdle. Williams v. Am. Samoa Gov’t, 6 A.S.R.3d 35 (App. Div. 2002).

If, upon review of the facts, it is determined that a rational trier of fact could find guild beyond reasonable doubt, the verdict must stand. Williams v. Am. Samoa Gov’t, 6 A.S.R.3d 35 (App. Div. 2002).

A trial court’s determination as to whether a criminal defendant’s double jeopardy rights have been violated is reviewed de novo. Fuimaono v. Am. Samoa Gov’t, 6 A.S.R.3d 67 (App. Div. 2002).

Trial judge’s findings of facts at a suppression hearing are reviewed for clear error. Fuimaono v. Am. Samoa Gov’t, 6 A.S.R.3d 67 (App. Div. 2002).

A trial judge’s determination that reasonable suspicion existed sufficient to justify a stop is reviewed de novo. Fuimaono v. Am. Samoa Gov’t, 6 A.S.R.3d 67 (App. Div. 2002).

Whether a trial court’s instructions adequately present a defendant’s theory of the case is a question of law reviewed de novo. Fonoti v. Am. Samoa Gov’t, 6 A.S.R.3d 77 (App. Div. 2002).

A trial court’s formulation of jury instructions is reviewed for an abuse of discretion. Fonoti v. Am. Samoa Gov’t, 6 A.S.R.3d 77 (App. Div. 2002).

Whether a criminal defendant has a statutory right to a jury trial is a question of law to be reviewed de novo. Stowers v. Am. Samoa Gov’t, 7 A.S.R.3d 16 (App. Div. 2003).

§ 9(8) —Timeliness of Response Briefs

RESERVED

§ 10 Interrogation and Miranda

§ 10(1) —Generally

Defendant’s oral confession was not admissible at trial when it had been given during custodial interrogation, after both an oral and a written denial of criminal activity, after police indicated that a confession and the return of allegedly stolen goods would bring a legal end to the matter, and before police administered Miranda warnings. American Samoa Gov’t v. Malota, 5 A.S.R.2d 101.

Defendant’s written confession was not admissible at trial, even though police had given Miranda warnings, when both the warnings and the confession were immediately preceded by the unconstitutional extraction of an oral confession. American Samoa Gov’t v. Malota, 5 A.S.R.2d 101.

The Miranda rule applies in American Samoa. In order for a statement, made by a suspect in custody, to be admissible, the suspect must have voluntarily, knowingly, and intelligently waived his rights to remain silent and to an attorney. The totality of the circumstances surrounding an interrogation must reveal both an uncoerced choice and the requisite level of comprehension in order to conclude that a suspect waived his Miranda rights. American Samoa Gov’t v. Pino, 1 A.S.R.3d 186 (Trial Div. 1997).

Territorial law prohibits introduction into evidence of statements by child in response to interrogation by police unless a parent, guardian or legal custodian were advised, at the time of interrogation, of the child’s right to remain silent, that any statements made may be used against him in a court of law, of the right to the presence of an attorney during the interrogation, and of the right to have counsel appointed. American Samoa Gov’t v. Pino, 1 A.S.R.3d 186 (Trial Div. 1997).

A criminal defendant must be apprised of his or her rights, including the right to remain silent, whenever the accused is subject to custodial interrogation. American Samoa Gov’t v. Faletogo, 4 A.S.R.3d 190 (Trial Div. 2000).

A person must be warned of particular rights, and have validly waived them, prior to any statements being made during custodial interrogation. American Samoa Gov’t v. Kava, 4 A.S.R.3d 240 (Trial Div. 2000).

On-the-scene investigative questioning in prison setting does not require Miranda warnings. American Samoa Gov’t v. Galumalemaga, 5 A.S.R.3d 24 (Trial Div. 2001).

A suspect’s right against self-incrimination arises in the context of custodial interrogation. Am. Samoa Gov’t v. Malala, 7 A.S.R.3d 49 (Trial Div. 2003).

If a suspect requests counsel during custodial interrogation, interrogation must cease until counsel is made available, even if the suspect later attempts to waive that right. Am. Samoa Gov’t v. Malala, 7 A.S.R.3d 49 (Trial Div. 2003).

The rule that interrogation must cease once a suspect invokes his right to counsel applies even if renewed interrogation concerns a separate investigation. Am. Samoa Gov’t v. Malala, 7 A.S.R.3d 49 (Trial Div. 2003).

The right to have the assistance of counsel attaches at or after the time that judicial proceedings have been initiated. Am. Samoa Gov’t v. Malala, 7 A.S.R.3d 49 (Trial Div. 2003).

After the right to the assistance of counsel attaches, the accused has the right to rely on counsel as a ‘medium’ between himself and the State. Am. Samoa Gov’t v. Malala, 7 A.S.R.3d 49 (Trial Div. 2003).

The right to the assistance of counsel is violated when the State obtains incriminating statements by knowingly circumventing the accused’s right to have counsel present in a confrontation between the accused and a state agent. Am. Samoa Gov’t v. Malala, 7 A.S.R.3d 49 (Trial Div. 2003).

Where right to assistance of counsel attaches, if an accused does not affirmatively request counsel, further interrogation is not forbidden as long as the accused properly waives his right. Am. Samoa Gov’t v. Malala, 7 A.S.R.3d 49 (Trial Div. 2003).

If an accused affirmatively requests the assistance of counsel, further interrogation is prohibited without counsel present, despite a waiver of Miranda rights. Am. Samoa Gov’t v. Malala, 7 A.S.R.3d 49 (Trial Div. 2003).

The right to counsel, unlike the right against self-incrimination, only applies to crimes that constitute the same offense. Am. Samoa Gov’t v. Malala, 7 A.S.R.3d 49 (Trial Div. 2003).

When the right to counsel attaches, it encompasses offenses that, even if not formally charged, would be considered the same offense under the Blockburger test. Am. Samoa Gov’t v. Malala, 7 A.S.R.3d 49 (Trial Div. 2003).

Miranda warnings are not required when a suspect, not under arrest, voluntarily agrees to accompany police to the station and is released after a brief interview—even though the questioning took place in a coercive atmosphere. Am. Samoa Gov’t v. Laumatia, 7 A.S.R.3d 155 (Trial Div. 2003).

§ 10(2) —Custody

Police officers’ actions in taking suspect to station, questioning him about crime, and leaving him temporarily with another officer who was to ensure that he did not leave amounted to a custodial interrogation that was illegal if undertaken without probable cause to arrest. American Samoa Gov’t v. Malota, 5 A.S.R.2d 101.

Where defendant voluntarily accompanied officers to police station where he was identified by complainant, photographed, given a Miranda warning before making a written statement, and then arrested without a warrant, motion to suppress the photos and statement as fruits of an unlawful seizure was denied since the evidence showed defendant was not in a custodial situation when the photos and statement were taken. American Samoa Gov’t v. Afamasaga, 17 A.S.R.2d 145.

Defendant’s statement made after a police officer asked “What happened?,” immediately upon encountering him a short distance from the crime scene, is admissible evidence because the defendant was neither in police custody nor undergoing custodial “interrogation.” American Samoa Gov’t v. Taylor, 19 A.S.R.2d 105.

A statement made by a person who was not in a custodial situation is not subject to suppression on Miranda grounds. U.S. Const. Amend. V. American Samoa Gov’t v. Fealofa’i, 24 A.S.R.2d 10.

A statement made by a person who was not in a custodial situation is not subject to suppression on Miranda grounds. U.S. Const. Amend. V. American Samoa Gov’t v. Maiava, 24 A.S.R.2d 20.

A statement made by a person who was not in a custodial situation is not subject to suppression on Miranda grounds. U.S. Const. Amend. V. American Samoa Gov’t v. Meleisea, 24 A.S.R.2d 32.

A person is in custodial detention when he or she is deprived of his or her freedom in any significant way. American Samoa Gov’t v. Faletogo, 4 A.S.R.3d 190 (Trial Div. 2000).

Custodial detention may exist even where a suspect is not taken to a police station or placed under arrest. American Samoa Gov’t v. Faletogo, 4 A.S.R.3d 190 (Trial Div. 2000).

In order to determine whether a custodial detention has taken place, courts ask whether, considering the person’s age, intellect, experience, and physical condition, the person should have believed that he or she was in custody. American Samoa Gov’t v. Faletogo, 4 A.S.R.3d 190 (Trial Div. 2000).

Where Plaintiff was instructed to exit his house and sit on a step outside while an investigatory search took place, but was not Mirandized or told that he was free to leave, Court nonetheless concluded that questioning occurred while investigation was ongoing and was of relatively short duration such that it did not constitute custodial interrogation. American Samoa Gov’t v. Faletogo, 4 A.S.R.3d 190 (Trial Div. 2000).

Traffic stops are generally not considered to qualify as custodial. American Samoa Gov’t v. Kava, 4 A.S.R.3d 240 (Trial Div. 2000).

If an individual is not in custodial interrogation, any self-incriminating statements he or she makes are fully admissible in evidence. American Samoa Gov’t v. Kava, 4 A.S.R.3d 240 (Trial Div. 2000).

On-the-scene questioning by police officers to determine whether a crime has been committed or is in progress, as distinguishable from custodial interrogation, does not require Miranda warnings. American Samoa Gov’t v. Galumalemaga, 5 A.S.R.3d 24 (Trial Div. 2001).

General test for determining whether there has been custodial interrogation—whether reasonable person would have believed he could not leave freely—has been held inapplicable in prison setting where question is whether, during interrogation, inmate was subjected to more than usual restraint on prisoner’s liberty to depart. American Samoa Gov’t v. Galumalemaga, 5 A.S.R.3d 24 (Trial Div. 2001).

In determining whether a criminal defendant was, for Miranda purposes, in a custodial situation when he or she gave a statement, the inquiry is whether there was a formal arrest or restraint on the person’s freedom of movement to the degree associated with a formal arrest. Am. Samoa Gov’t v. Laumatia, 7 A.S.R.3d 155 (Trial Div. 2003).

The initial determination of custody depends on the objective circumstances of the interrogation, not on the subjective views harbored by either the interrogating officers or the person being questioned. The relevant inquiry is how a reasonable man in the suspect’s position would have understood his situation. Am. Samoa Gov’t v. Laumatia, 7 A.S.R.3d 155 (Trial Div. 2003).

Custody does not result simply because an individual is questioned in the “coercive environment” of the station house. Am. Samoa Gov’t v. Laumatia, 7 A.S.R.3d 155 (Trial Div. 2003).

§ 10(3) —Interrogation

Although the police officer had just been given information implicating the defendant in the crime, the question “What happened?” was deemed to have been “investigatory” rather than “accusatory” because the officer was trying to gather preliminary and general information, rather than to elicit a confession. American Samoa Gov’t v. Taylor, 19 A.S.R.2d 105.

An interrogation takes place when a police officer asks accusatory, rather than investigatory, questions, intended to elicit a confession rather than preliminary and general information. American Samoa Gov’t v. Faletogo, 4 A.S.R.3d 190 (Trial Div. 2000).

§ 10(4) —Waiver of Rights

If a suspect “voluntarily, knowingly and intelligently” waives his rights to remain silent and to an attorney, a statement made by a suspect who is in custody is admissible; this applies to both volunteered statements and statements made after the suspect expressly states that he wants to make a statement and does not want a lawyer are admissible as evidence. U.S. Const. Amend. V. American Samoa Gov’t v. Gotoloai, 23 A.S.R.2d 65.

A defendant’s statements will not be suppressed when his assertion that his Miranda-rights waiver was coerced is contradicted by his pleadings and a police investigator’s testimony. American Samoa Gov’t v. Tauai, 24 A.S.R.2d 23.

Where evidence presented established that there was no police intimidation, coercion, or deception, when taking into account minor defendant’s age and level of intelligence, waiver of his Miranda rights was voluntarily, knowingly and intelligently given. American Samoa Gov’t v. Pino, 1 A.S.R.3d 186 (Trial Div. 1997).

Fact that defendant’s testable intelligence quotient was equal to a second grader did not establish that he was unable to understand his actions in waiving his Miranda rights. American Samoa Gov’t v. Pino, 1 A.S.R.3d 186 (Trial Div. 1997).

Low mental ability in and of itself is insufficient to establish that a defendant did not understand his rights. A suspect’s inability to read the Miranda form does not necessarily mean that he was unable to understand his rights as they were being read to him. American Samoa Gov’t v. Pino, 1 A.S.R.3d 186 (Trial Div. 1997).

Territorial law respecting the Miranda rule is complied with if either the parent or counsel present when Miranda warning read. American Samoa Gov’t v. Pino, 1 A.S.R.3d 186 (Trial Div. 1997).

Where a defendant has undergone a psychiatric examination and been found competent to stand trial and assist his counsel it seems logical to conclude that he would have been capable of understanding the very elemental rights that Miranda affords, notwithstanding his academic stunting. American Samoa Gov’t v. Pino, 1 A.S.R.3d 195 (Trial Div. 1997).

The Juvenile Justice Act of 1980 provides additional safeguards for juveniles beyond those discussed in Miranda v. Arizona, 384 U.S. 436 (1966). Under ASCA § 45.0204, the “parent, guardian or legal custodian” must be advised of the child’s Miranda rights in order for a waiver of those rights to be permissible. American Samoa Gov’t v. Pino, 1 A.S.R.3d 195 (Trial Div. 1997).

Where a juvenile is interviewed by police officers in the presence of the juvenile’s father the requirements of ASCA § 45.0204 are met. American Samoa Gov’t v. Pino, 1 A.S.R.3d 195 (Trial Div. 1997).

Functioning academically at a grade-school level does not necessarily preclude the comprehension of the basic rights Miranda affords. Evidence that a juvenile is able to function adequately outside school, testify clearly and intelligently and assist his counsel may establish the juvenile was and is capable of understanding his Miranda rights. American Samoa Gov’t v. Pino, 1 A.S.R.3d 195 (Trial Div. 1997).

The standard of proof to show a valid Miranda waiver is preponderance of the evidence, and a heavier burden of proof does not shift to the prosecution simply because a defendant asserts that he was in a “fragile state” due to intoxication and sleep deprivation, and so unable to properly waive his Miranda rights, where he was still able to engage in meaningful dialogue. American Samoa Gov’t v. Pearson, 2 A.S.R.3d 63 (Trial Div. 1998).

Where the totality of the circumstances surrounding an in-custody interrogation reveal that the suspect voluntarily, knowingly, and intelligently waived his rights to remain silent and to an attorney, any statement made by him is admissible. American Samoa Gov’t v. Sefo, 2 A.S.R.3d 94 (Trial Div. 1998).

Where a defendant repeatedly responds that he understands the Miranda rights being read to him, the police cannot be required to look beyond his own words and presume that he does not comprehend the plain language of Miranda. American Samoa Gov’t v. Vagavao, 3 A.S.R.3d 72 (Trial Div. 1999).

Where the facts are in dispute as to whether an arrestee was fully informed of his Miranda rights, the court’s finding of fact on that issue may take into account the experience and training of the officer. American Samoa Gov’t v. Kaplan, 3 A.S.R.3d 86 (Trial Div. 1999).

An individual must knowingly, intelligently, and voluntarily waive his Miranda rights prior to custodial interrogation by the police, in order for such questioning to be constitutional. American Samoa Gov’t v. Kava, 4 A.S.R.3d 240 (Trial Div. 2000).

The court must look to the totality of the surrounding circumstances to determine whether a confession is made voluntarily. American Samoa Gov’t v. Alataua, 5 A.S.R.3d 77 (Trial Div. 2001).

Totality of the circumstances surrounding defendant’s post-arrest interrogation demonstrated that his statement was voluntarily made where defendant had previously refused to talk to police officers but had asked to speak to specific officer, was advised of Miranda rights prior to questioning, and where there were no facts indicating defendant was either coerced or threatened. American Samoa Gov’t v. Alataua, 5 A.S.R.3d 77 (Trial Div. 2001).

The government bears the burden of proving by a preponderance of the evidence that a defendant waived his Miranda rights. Am. Samoa Gov’t v. Malala, 7 A.S.R.3d 49 (Trial Div. 2003).

The government bears the burden of proving by a preponderance of the evidence that a statement was voluntarily made. Am. Samoa Gov’t v. Malala, 7 A.S.R.3d 49 (Trial Div. 2003).

The court’s determinations that a criminal defendant has waived his Miranda rights and voluntarily made a confession are both based upon the totality of the circumstances. Am. Samoa Gov’t v. Malala, 7 A.S.R.3d 49 (Trial Div. 2003).

Despite the fact that suspect’s right to assistance of counsel had attached, because suspect had not requested counsel, had been warned and had validly waived his rights, there was no constitutional bar to the interrogation. Am. Samoa Gov’t v. Malala, 7 A.S.R.3d 49 (Trial Div. 2003).

Even if a suspect waives his Miranda rights, a court must still determine whether his confession was voluntary and obtained according to due process of law. Am. Samoa Gov’t v. Malala, 7 A.S.R.3d 49 (Trial Div. 2003).

The determination as to whether a confession is voluntarily made is based upon the totality of circumstances, including the length of the interrogation, its location, its continuity, the defendant’s maturity, education, physical condition, and mental health, the failure of police to advise the defendant of his rights and whether any overt police coercion was employed such as threats, violence or promises. Am. Samoa Gov’t v. Malala, 7 A.S.R.3d 49 (Trial Div. 2003).

A confession is not voluntary if circumstances show that the defendant’s will has been overborne or his capacity for self-determination critically impaired. Am. Samoa Gov’t v. Malala, 7 A.S.R.3d 49 (Trial Div. 2003).

§ 10(5) —Invoking Miranda Rights

After a defendant told police interrogators that he wished to have a lawyer before making a statement, it was impermissible for the officers to give the impression that making a statement to the police was required to participate in the legal process, by their responding that the defendant should make a statement and that a copy would be sent to his lawyer, especially in light of the intimidating circumstances he had faced earlier in his incarceration. American Samoa Gov’t v. Taylor, 19 A.S.R.2d 105.

Once a defendant invokes his right to counsel, interrogation is to cease until he had been allowed to consult a lawyer. American Samoa Gov’t v. Taylor, 19 A.S.R.2d 105.

If the interrogation proceeds in violation of a defendant’s right to counsel, the resulting statements of the defendant may not be used as evidence against him–not even statements which, but for the initial invocation of the right to counsel, would seem thoroughly voluntary. American Samoa Gov’t v. Taylor, 19 A.S.R.2d 105.

The privilege against self-incrimination is only a privilege against giving testimony or other communicative evidence against oneself, and does not protect the accused from giving real or physical evidence. Man v. American Samoa Gov’t, 29 A.S.R.2d 66.

Once a suspect has invoked the right to counsel, he must initiate any subsequent conversation. Am. Samoa Gov’t v. Malala, 7 A.S.R.3d 49 (Trial Div. 2003).

§ 10(6) —Evidence Obtained in Violation of Miranda

Court would suppress not only illegally obtained confessions, but also all inculpatory evidence obtained by police consequent to the confessions. American Samoa Gov’t v. Malota, 5 A.S.R.2d 101.

When a statement is suppressed as having been taken in violation of a defendant’s right to counsel, the suppression applies not only to the statement but also to any information the government may have discovered as a result of the statement, unless such information would have been “ultimately or inevitably” discovered without the statement. American Samoa Gov’t v. Taylor, 19 A.S.R.2d 105.

Defendant’s motion to dismiss is denied when he does not move to suppress any particular evidence alleged to have been discovered by the government as a result of a suppressed statement but instead moves for dismissal of the charges unless the government can affirmatively show that it can convict him without the use of any such evidence, especially when the evidence not only fails to show that the government plans to present any impermissible evidence but also indicates that the government has substantial evidence which was not discovered as a result of the suppressed statement. American Samoa Gov’t v. Taylor, 19 A.S.R.2d 105.

Merely giving Miranda warnings is insufficient to constitute an “intervening circumstance” severing the causal relationship between an illegal arrest and a confession, and such a confession must be suppressed. Rev. Const. Am. Samoa Art. I, § 5. American Samoa Gov’t v. Sefo, 21 A.S.R.2d 32.

A confession will be suppressed if the government fails to meet its burden of showing that probable cause for a warrantless arrest existed when it was made. Rev. Const. Am. Samoa Art. I, § 5; A.S.C.A. § 46.0805(3). American Samoa Gov’t v. Luki, 21 A.S.R.2d 82.

Only a statement made by a person in a custodial situation is subject to suppression on Miranda grounds. American Samoa Gov’t v. Faletogo, 4 A.S.R.3d 190 (Trial Div. 2000).

Prosecution’s comment on a defendant’s silence, which occurs after arrest and Miranda warnings, is not allowed. American Samoa Gov’t v. Faletogo, 4 A.S.R.3d 190 (Trial Div. 2000).

A defendant’s confession will be suppressed if it was obtained after police effectuated an illegal arrest, unless the causal connection between the arrest and the confession had become so attenuated that the latter shall not be deemed tainted by the former. Am. Samoa Gov’t v. Ropati, 7 A.S.R.3d 69 (Trial Div. 2003).

§ 11 Searches & Seizures

§ 11(1) —Generally

The use of artificial means to illuminate a darkened area is not a search and thus triggers no Fourth Amendment protection. American Samoa Gov’t v. Loia, 16 A.S.R.2d 1.

There is no legitimate expectation of privacy shielding the portion of the interior of an automobile that may be viewed from outside the vehicle. American Samoa Gov’t v. Loia, 16 A.S.R.2d 1.

Once the persons or things named in the warrant are found, the owner or occupant of a house has a legitimate expectation of privacy in areas of the house which have not been searched, and the warrant itself will no longer support police entry into previously unentered rooms. American Samoa Gov’t v. Seiuli, 29 A.S.R.2d 26.

Police officers may, upon reasonable suspicion, conduct a “protective sweep” of areas from which an endangering attack may be launched, even if this means entering unentered rooms. When a house is known to be a dangerous place, the potential for danger justifies a “cursory” search of the house and nearby vicinity for additional persons or weapons. American Samoa Gov’t v. Seiuli, 29 A.S.R.2d 26.

A search undertaken pursuant to a warrant must be directed in good faith toward the objects specified in the warrant. If the warrant has been allowed to become an object for a “general search” and it is not possible for the court to identify after the fact the discrete items of evidence which would have been discovered had the agents kept their search within the bounds permitted by the warrant, all seized evidence must be suppressed. American Samoa Gov’t v. Seiuli, 29 A.S.R.2d 26.

A search undertaken pursuant to a warrant must be directed in good faith toward the objects specified in the warrant. If the warrant has been allowed to become an object for a general search and it is not possible for the court to identify after the fact the discrete items of evidence which would have been discovered had the agents kept their search within the bounds permitted by the warrant, all seized evidence must be suppressed. Am. Samoa Gov’t v. Suani, 29 A.S.R. 2d 38.

Due process is violated only where there is flagrant disregard for the limitations of the search warrant, transforming the particularized warrant into a general search. Am. Samoa Gov’t v. Suani, 29 A.S.R. 2d 38.

Search warrant duly issued upon application is presumed valid until otherwise shown. American Samoa Gov’t v. Lam Yuen, 11 A.S.R.2d 118.

§ 11(2) —Privacy Expectations

Article I, Sec. 5 of the Revised Constitution of American Samoa, which guarantees the right of individuals “to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures”, protects only those with a legitimate expectation of privacy with respect to the area searched. American Samoa Gov’t v. Atafua, 1 A.S.R.3d 174 (Trial Div. 1997).

The right to be free from an unreasonable search is a personal right which may not be vicariously asserted. Even if the police violate someone else’s constitutional rights by failing to obtain a warrant before conducting a search on the property, such information does not justify exclusion of the seized evidence in a different person’s prosecution. American Samoa Gov’t v. Atafua, 1 A.S.R.3d 174 (Trial Div. 1997).

Article I, § 5 of the Revised Constitution of American Samoa guarantees the right of individuals “to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” American Samoa Gov’t v. Dunham, 1 A.S.R.3d 176 (Trial Div. 1997).

Article I, § 5 of the Revised Constitution of American Samoa attaches privacy rights only to those individuals who have legitimate expectations of privacy with respect to the searched area. American Samoa Gov’t v. Dunham, 1 A.S.R.3d 176 (Trial Div. 1997).

Where search at issue took place in the bush, and defendant neither asserted nor demonstrated that he had a property or possessory interest in area, he had no standing to complain of warrantless search. American Samoa Gov’t v. Dunham, 1 A.S.R.3d 176 (Trial Div. 1997).

Article I, § 5 of the Revised Constitution of American Samoa parallels the Fourth Amendment to the United States Constitution and provides a safeguard against “unreasonable searches and seizures.” American Samoa Gov’t v. Pino, 1 A.S.R.3d 186 (Trial Div. 1997).

Because Fourth Amendment rights are personal, where police exceeded the bounds of a person’s consent to search her premises, such violation of that person’s rights does not necessarily transmute to another person. American Samoa Gov’t v. Pearson, 2 A.S.R.3d 63 (Trial Div. 1998).

The personal rights of the Fourth Amendment may be asserted either through a privacy right, which attaches to a person who has an actual an actual subjective socially recognized expectation of privacy in the place searched, or a possessory interest in the place searched. American Samoa Gov’t v. Pearson, 2 A.S.R.3d 63 (Trial Div. 1998).

Neither a reasonable expectation of privacy, nor a possessory interest exists in a motel room where the person was found the lobby, nor in the premises of another where he did not regularly stay, and did not stay on the night at issue, and where the person subjectively knew he did not have permission to stay on the premises. American Samoa Gov’t v. Pearson, 2 A.S.R.3d 63 (Trial Div. 1998).

Although a third party’s rights may be compromised where he is commanded to surrender a person’s gun, the rights of that person are not implicated. American Samoa Gov’t v. Pearson, 2 A.S.R.3d 63 (Trial Div. 1998).

Individuals have a constitutional expectation of privacy in their “persons, houses, papers, and effects,” and generally, law enforcement officers must obtain a warrant to search these areas or for these things. American Samoa Gov’t v. Tauoa, 2 A.S.R.3d 81 (Trial Div. 1998).

The intimate activity of one’s home, not the protection of property rights, is the gauge of an expectation of privacy. American Samoa Gov’t v. Tauoa, 2 A.S.R.3d 87 (Trial Div. 1998).

Under Article I, § 5 of the Revised Constitution of American Samoa, which mirrors the Fourth Amendment of the United States Constitution, individuals are protected against unreasonable searches and seizures, and search or seizure warrants may not be issued without a showing of probable cause, and evidence obtained in violation of this section may not be admitted in any court. American Samoa Gov’t v. Sefo, 2 A.S.R.3d 94 (Trial Div. 1998).

For Fourth Amendment search protections to apply, a person must have either a possessory interest or privacy right in the area searched. American Samoa Gov’t v. Pearson, 2 A.S.R.3d 102 (Trial Div. 1998).

A Fourth Amendment right is a personal right which may not be vicariously asserted by another. American Samoa Gov’t v. Pearson, 2 A.S.R.3d 102 (Trial Div. 1998).

Where a defendant has a subjective expectation of privacy in a room searched at another’s residence, the onus is on the defendant to raise such issue at trial. American Samoa Gov’t v. Pearson, 2 A.S.R.3d 102 (Trial Div. 1998).

As a houseguest, a person has a reasonable expectation of privacy, but where the person is only an occasionally visitor, and does not spend the night with the host’s knowledge, he is not considered a houseguest; an overnight guest is one who is in the host’s home with the explicit knowledge and permission of the host. American Samoa Gov’t v. Pearson, 2 A.S.R.3d 102 (Trial Div. 1998).

The twelve factors set out in Minnesota v. Olson, 495 U.S. 91 (1990), are used in determining whether a person has standing as a houseguest. American Samoa Gov’t v. Pearson, 2 A.S.R.3d 102 (Trial Div. 1998).

Where a defendant’s father is a joint owner of a house, such is not dispositive of whether the defendant himself had a property interest in it or an expectation of privacy. American Samoa Gov’t v. Pearson, 2 A.S.R.3d 102 (Trial Div. 1998).

The Fourth Amendment of the U.S. Constitution is identical in relevant content to Article I, Section 5 of the Revised Constitution of American Samoa, and cases interpreting the Fourth Amendment provide appropriate guidance in applying this provision of the territorial constitution. American Samoa Gov’t v. Ve`ae`a, 2 A.S.R.3d 109 (Trial Div. 1998).

The Fourth Amendment does not require that every search be made pursuant to a warrant, but only prohibits unreasonable searches and seizures. American Samoa Gov’t v. Ve`ae`a, 2 A.S.R.3d 109 (Trial Div. 1998).

Individuals possess a diminished expectation of privacy with respect to automobiles. American Samoa Gov’t v. Ve`ae`a, 2 A.S.R.3d 109 (Trial Div. 1998).

Article 1, Section 5 of the Revised Constitution of American Samoa mirrors its federal counterpart in the Fourth Amendment under which the right of the people to be secure in their persons against unreasonable searches and seizures shall not be violated. American Samoa Gov’t v. Faumuina, 3 A.S.R.3d 94 (Trial Div. 1999).

Article I, Section 5 of the Revised Constitution of American Samoa being essentially identical in content regarding search and seizure to the Fourth Amendment of the United States Constitution, caselaw decided under the Fourth Amendment provides guidance in determining whether a warrantless search is unreasonable, and a search can be valid for multiple reasons. American Samoa Gov’t v. Agasiva, 3 A.S.R.3d 110 (Trial Div. 1999).

A person is entitled to Fourth Amendment protection in a place when he or she has a reasonable expectation of privacy. American Samoa Gov’t v. Faletogo, 4 A.S.R.3d 190 (Trial Div. 2000).

In determining whether person has right against unreasonable search and seizure, reasonable-expectation-of-privacy standard is clearly restricted when person asserting expectation is incarcerated or in custody. American Samoa Gov’t v. Galumalemaga, 5 A.S.R.3d 24 (Trial Div. 2001).

Inmate returning from work release has no reasonable expectation of privacy and, therefore, no right under Rev. Const. of Am. Samoa, Art. I, Sec. 5, regarding routine pat-down and shoe-search procedures, which only pose minimal degree of intrusion upon privacy. American Samoa Gov’t v. Galumalemaga, 5 A.S.R.3d 24 (Trial Div. 2001).

§ 11(3) —Probable Cause for Search Warrants

Whether a confidential informant’s tip supplies sufficient probable cause to issue a search warrant is to be tested by the totality of circumstances set forth in the affidavit. American Samoa Gov’t v. Peni Samana, 8 A.S.R.2d 1.

Under the totality of circumstances test for probable cause, the informant’s basis of knowledge and credibility are important but not determinative factors, and, despite deficiencies in those factors, a finding of probable cause may be supported where other corroborative information or indicia of reliability are set forth in the affidavit. American Samoa Gov’t v. Peni Samana, 8 A.S.R.2d 1.

Court reviewing a prior determination of probable cause to issue a warrant must ask whether the affidavit, viewed as a whole, provided a substantial basis for the finding of probable cause and may not make a post hoc, de novo determination. American Samoa Gov’t v. Peni Samana, 8 A.S.R.2d 1.

Affidavit that was based on a confidential informant’s tip, without direct information about how the informant obtained his knowledge, about the informant’s credibility, or about independent corroborative efforts of the police, and which contained no other indicia of reliability or corroborative information, was conclusory and did not support a finding of probable cause. American Samoa Gov’t v. Peni Samana, 8 A.S.R.2d 1.

Search and seizure clause of territorial constitution requires an independent finding of probable cause by a neutral and detached magistrate. Rev’d Const. Am. Samoa art. I, § 5. In re Siaumau, 12 A.S.R.2d 11.

In making an independent judicial finding of probable cause for a search, the judge may not rely merely on the prosecutor’s decision to file a complaint. Rev’d Const. Am. Samoa art. I, § 5. In re Siaumau, 12 A.S.R.2d 11.

Judge may independently find adequate basis for probable cause in a criminal complaint which not only contains directly incriminating information but also identifies the source of such information. Rev’d Const. Am. Samoa art. I, § 5. In re Siaumau, 12 A.S.R.2d 11.

Factual allegations given their common sense meaning may be sufficient to constitute probable cause for certain crimes. Rev’d Const. Am. Samoa art. I, § 5. In re Siaumau, 12 A.S.R.2d 11.

Criminal complaint containing factual allegations of complainant officer and sources upon which the officer based such allegations, including personal investigation with interviews of identified victim, eyewitness, and treating physician, was sufficient to sustain independent judicial finding of probable cause. Rev’d Const. Am. Samoa art. I, § 5. In re Siaumau, 12 A.S.R.2d 11.

Task of judge to whom officer had applied for a search warrant was to make a practical, common sense decision whether, given all the circumstances set forth in the affidavit before him, there was a fair probability that contraband or evidence of a crime would be found. American Samoa Gov’t v. Lam Yuen (Mem.), 13 A.S.R.2d 49.

Duty of court in reviewing the decision of the judge who issued search warrant is not to try the question anew but simply to ensure that the magistrate had a substantial basis for concluding that probable cause existed. American Samoa Gov’t v. Lam Yuen (Mem.), 13 A.S.R.2d 49.

Extrinsic evidence tending to corroborate information provided by an informant might be important to bolster a relatively weak showing on either of the two principal factors considered by issuing magistrates in such cases — the credibility of the informant and the basis of the informant’s knowledge — but is not necessary where neither of these factors needs bolstering. American Samoa Gov’t v. Lam Yuen (Mem.), 13 A.S.R.2d 49.

Judge was justified in finding probable cause to believe marijuana was present on premises, even without extrinsic corroborating evidence, where the police officer’s affidavit stated persuasively and with particularity the grounds for the officer’s belief that the informant was reliable and had a reliable basis for knowing whereof he spoke: that the officer had personally known the informant for over a year; that the informant had previously provided information which had proved reliable and trustworthy; that information provided by this informant had in fact been instrumental in securing more than one criminal conviction; and that the information provided to the officer was that the informant had not only been told about the existence and location of the substance by the defendant himself, but had also seen it personally and actually obtained samples. American Samoa Gov’t v. Lam Yuen (Mem.), 13 A.S.R.2d 49.

Test by police officer of samples provided by informant, which showed the substance to be marijuana, tended to corroborate only part of the informant’s story, and not the part tying the marijuana to the location in question; but if the officer had tried to corroborate that part of the story before applying for a warrant, defendant might well have been justified in complaining of a warrantless search. American Samoa Gov’t v. Lam Yuen (Mem.), 13 A.S.R.2d 49.

Court may consider the training, experience, and collective knowledge of the police officers seizing property in plain view when assessing whether probable cause existed to believe that such property was incriminating. American Samoa Gov’t v. Loia, 16 A.S.R.2d 1.

Rolled butt’s twisted ends are significant in assessing probable cause that the butts contained marijuana, since ends are usually twisted to preserve the contents for future use, a precaution more likely used with illegal and difficult to obtain substances like marijuana than with readily accessible substances like tobacco. American Samoa Gov’t v. Loia, 16 A.S.R.2d 1.

Fact that currency as well as rolled butts with twisted ends were visible in auto ashtray indicated that the ashtray was used to store items, not dispose of them, a use more probable for scarce substances like marijuana than common substances like tobacco. American Samoa Gov’t v. Loia, 16 A.S.R.2d 1.

When both a search warrant and its supporting affidavit are overbroad as to what items may be seized, the warrant is deficient even if construed in reference to the affidavit. American Samoa Gov’t v. Whitney, 20 A.S.R.2d 12.

Descriptions in a warrant must be specific enough to enable the person conducting the search to reasonably identify the things authorized to be seized. American Samoa Gov’t v. Whitney, 20 A.S.R.2d 12.

Warrants reciting generic categories and criminal statutes, without more, do not usually give enough guidance as to what items may be seized – although a warrant’s reference to a particular statute may, in certain circumstances not present here, satisfy the Fourth Amendment. American Samoa Gov’t v. Whitney, 20 A.S.R.2d 12.

When the only limitation contained in a warrant was that the items seized be somehow connected to listed activities and statutes, the warrant was far too broad. American Samoa Gov’t v. Whitney, 20 A.S.R.2d 12.

Warrants lacking in particularity are particularly troubling when the items to be seized have presumptive First Amendment protection. American Samoa Gov’t v. Whitney, 20 A.S.R.2d 12.

In deciding whether to issue a search warrant based on a confidential informant’s information, a magistrate makes a practical, common‑sense decision as to whether all the circumstances set forth in the supporting affidavit provide a substantial basis that probable cause exists. American Samoa Gov’t v. Leoso, 25 A.S.R.2d 103.

A finding of probable cause is to be given great deference on review, because of the strong constitutional preference that searches be authorized by warrants. American Samoa Gov’t v. Leoso, 25 A.S.R.2d 103.

In determining whether probable cause exists, for purposes of issuing a search warrant, a totality of circumstances test is used. A confidential informant’s veracity and his basis of knowledge are weighed as two elements in the totality of circumstances analysis, but not as two independent tests which must be separately satisfied. A deficiency in one of these two elements may be compensated for by a strong showing as to the other, or by some other indicia of reliability. American Samoa Gov’t v. Leoso, 25 A.S.R.2d 103.

An otherwise insufficient statement by an informant can support the issuance of a search warrant if the police have corroborating evidence. Corroborating evidence is unnecessary if the informant’s credibility and basis for knowledge are sufficient. American Samoa Gov’t v. Leoso, 25 A.S.R.2d 103.

In determining whether information is too stale to establish probable cause supporting the issuance of a search warrant, the court considers the nature of the criminal activity, the length of the activity, and the nature of the property to be seized. American Samoa Gov’t v. Leoso, 25 A.S.R.2d 103.

If some portions of an affidavit contain material inadmissible to serve as a basis for the issuance of a search warrant, this fact does not invalidate the warrant if in addition the affidavit contains other essential allegations sufficient to establish probable cause. American Samoa v. Stephens, 29 A.S.R.2d 6.

Generic categories of items to be seized will generally not limit a search sufficiently to satisfy the Constitution, American Samoa Government v. Whitney, 20 A.S.R.2d 14-15 (Trial Div. 1992), but it is permissible to use general categories when circumstances make a more specific description of instrumentalities an impossibility. American Samoa v. Stephens, 29 A.S.R.2d 6.

When a warrant is generalized to support broader exploration than required to seize the supportable objects of the search, it violates the “particularity” requirement of Article I § 5. American Samoa v. Stephens, 29 A.S.R.2d 6.

An evidentiary hearing to review probable cause for a search warrant is only mandated where a defendant alleges deliberate falsehood or reckless disregard for the truth, and can support those allegations with an offer of proof. American Samoa Gov’t v . Samana, 1 A.S.R.3d 178 (Trial Div. 1997).

Probable cause for a warrant may be founded upon hearsay and information received from informants. American Samoa Gov’t v . Samana, 1 A.S.R.3d 178 (Trial Div. 1997).

A judge may issue a warrant without requiring informants to be produced, as long as there is a substantial basis for crediting the hearsay. American Samoa Gov’t v . Samana, 1 A.S.R.3d 178 (Trial Div. 1997).

Only affiant may be subject to impeachment at such evidentiary hearing determining existence of probable cause for warrant. American Samoa Gov’t v . Samana, 1 A.S.R.3d 178 (Trial Div. 1997).

Criminal defendant’s assertions that warrant relied on “general and vague” statements of confidential informant, and that confidential informant may be unreliable, or may not exist were insufficient to require evidentiary hearing reviewing propriety of warrant. American Samoa Gov’t v . Samana, 1 A.S.R.3d 178 (Trial Div. 1997).

As long as the information put forth by an informant is believed to be true by the warrant’s affiant, every fact recited in the warrant need not be correct or complete. American Samoa Gov’t v . Samana, 1 A.S.R.3d 178 (Trial Div. 1997).

Substantial basis existed for crediting hearsay of confidential informant where affiant investigated informant’s criminal history, verified the informant’s credibility with another police officer, and utilized his own knowledge to corroborate veracity of informant’s statements. American Samoa Gov’t v . Samana, 1 A.S.R.3d 178 (Trial Div. 1997).

Challenge to propriety of warrant must be more than conclusory and be supported by more than a mere desire to cross-examine affiant. American Samoa Gov’t v . Samana, 1 A.S.R.3d 178 (Trial Div. 1997).

The law enforcement privilege entitles the American Samoa Government to withhold from disclosure the identity of persons who furnish information of violations of law to officers charged with enforcement of that law. American Samoa Gov’t v . Samana, 1 A.S.R.3d 178 (Trial Div. 1997).

A trial court must balance the public interest in protecting the flow of information against the individual’s right to prepare his defense. American Samoa Gov’t v . Samana, 1 A.S.R.3d 178 (Trial Div. 1997).

The crime charged, the possible defenses, and the possible significance of the informer’s testimony are among factors that the court should consider in determining whether disclosure of a confidential informant’s identity is warranted. American Samoa Gov’t v . Samana, 1 A.S.R.3d 178 (Trial Div. 1997).

Disclosure of confidential informant’s identity was not appropriate where defendant was charged with cultivating and possessing marijuana on his land, officers had already located and seized the marijuana, and where examination of informant would not be relevant and helpful to defendant’s case. American Samoa Gov’t v . Samana, 1 A.S.R.3d 178 (Trial Div. 1997).

Under Article 1, Sec. 5 of the Revised Constitution of American Samoa, a judge is not required to learn the identity of a confidential informant upon whose information a warrant is issued. American Samoa Gov’t v. Fa’atulu, 1 A.S.R.3d 184 (Trial Div. 1997).

The Government is privileged to conceal the identity of an informant and the trial court is not required to conduct an in camera examination of the informant where the defendant makes no showing that an in camera examination of the informant by the court would develop information “relevant and helpful” to a particular legal theory advanced by the defendant. American Samoa Gov’t v. Fa’atulu, 1 A.S.R.3d 184 (Trial Div. 1997).

Where defendant sought an in camera hearing to test the reliability of the government’s confidential informant, he was required to make a substantial preliminary showing that (1) the affiant deliberately or recklessly included a false statement in the affidavit submitted in support of the search warrant, and (2) the fallacious statement was material to the issuing judge’s finding of probable cause. American Samoa Gov’t v. Samana, 2 A.S.R.3d 58 (Trial Div. 1998).

The presumption of the validity of an affidavit supporting a search warrant cannot be overcome by a self-serving statement purporting to refute the affidavit. American Samoa Gov’t v. Samana, 2 A.S.R.3d 58 (Trial Div. 1998).

When considering whether probable cause exists based on information provided by a confidential informant, the issuing judge should consider the basis for informant’s alleged knowledge and whether the information and the informant are reliable. American Samoa Gov’t v. Samana, 3 A.S.R.3d 27 (App. Div. 1999).

A defendant may challenge statements made in an affidavit supporting a warrant, but must meet three conditions in order to obtain a Franks hearing: (1) he must allege that specific statements in the affidavit were made with reckless disregard for the truth, and must provide reliable, sworn statements of supporting witnesses; (2) he may challenge the statement of the affiant only, not of the informant; (3) he must show that the remaining information in the warrant, apart from the information the defendant alleges to be false, would not support a finding of probable cause. American Samoa Gov’t v. Samana, 3 A.S.R.3d 27 (App. Div. 1999).

Whether an informant, cited in application for a warrant, has an adequate basis for his knowledge should be addressed in a direct challenge to the probable cause finding. American Samoa Gov’t v. Samana, 3 A.S.R.3d 27 (App. Div. 1999).

Where a defendant makes a showing that identification of the government’s confidential informant may be relevant and helpful to a possible defense at trial, a district court abuses its discretion if it fails to hold an in camera hearing on disclosure. American Samoa Gov’t v. Samana, 3 A.S.R.3d 27 (App. Div. 1999).

§ 11(4) —Execution of Search Warrants

The general rule governing the execution of search warrants is that only items named in the warrant may be seized. Am. Samoa Gov’t v. Suani, 29 A.S.R. 2d 38.

When there is an ambiguity on the face of a search warrant, the court may look to the circumstances surrounding the issuance of the warrant to discover its meaning. Am. Samoa Gov’t v. Suani, 29 A.S.R. 2d 38.

A warrant that anticipated a search for marijuana plants at least three feet tall, whether growing or harvested, provided authority to search only those containers and other spaces, which are large enough to conceal such plants. Am. Samoa Gov’t v. Suani, 29 A.S.R. 2d 38.

§ 11(5) —Knock & Announce Rule

RESERVED

§ 11(6) —Warrantless Searches

Pervasively regulated businesses that have long been subjected to close inspection and supervision, such as barbershops, may in proper circumstances be subjected to warrantless search. Am. Sam. Const. art. I § 5. Ferstle v. American Samoa Gov’t, 7 A.S.R.2d 26.

A warrantless search incident to valid arrest may include: (1) the person of the arrestee; and (2) the area within the arrestee’s immediate control. The area within an arrestee’s immediate control is the area where the arrested person might reach for either a weapon or evidentiary items. In addition to a comprehensive search of a defendant and the area within his immediate control, officers are authorized, upon reasonable suspicion, to make a “quick and limited” search or “protective sweep” of areas where a potential assailant may be hiding. American Samoa Gov’t v. Seiuli, 29 A.S.R.2d 26.

The test of the validity of a warrantless search is whether the search was reasonable under all the circumstances. American Samoa Gov’t v. Ve`ae`a, 2 A.S.R.3d 109 (Trial Div. 1998).

§ 11(7) —Terry Stops

A warrantless search is unless an exception exists to justify it, and a “Terry stop and frisk” is such an exception. American Samoa Gov’t v. Faumuina, 3 A.S.R.3d 94 (Trial Div. 1999).

A Terry frisk must be limited to what is necessary for the discovery of weapons which might be used to harm the officer or others. American Samoa Gov’t v. Faumuina, 3 A.S.R.3d 94 (Trial Div. 1999).

A Terry frisk is justified if it is reasonably related to the circumstances, and the search of a waist pouch is reasonable where the officer has reason to believe it contains a gun and ammunition. American Samoa Gov’t v. Faumuina, 3 A.S.R.3d 94 (Trial Div. 1999).

A Terry frisk must be justified at its inception, and the officer must be rightfully in the presence of the party frisked, and that is so when the party places himself in the officer’s presence. American Samoa Gov’t v. Faumuina, 3 A.S.R.3d 94 (Trial Div. 1999).

A Terry frisk is justified if the officer reasonably suspects that the party may be armed and dangerous; this standard is quite low (a good deal lower than probable cause) and considerable deference is afforded law enforcement authorities in this determination. It is reasonable for an officer to suspect that a person is armed if he sees what he believes to be the bulge of a gun in a waist pouch. American Samoa Gov’t v. Faumuina, 3 A.S.R.3d 94 (Trial Div. 1999).

It is reasonable for an officer to suspect that a person may be dangerous when the person is displeased at having poker machines seized, and persistently follows the team carrying out inspections for other illegal machines. American Samoa Gov’t v. Faumuina, 3 A.S.R.3d 94 (Trial Div. 1999).

A frisk is proper where an obvious bulge of a handgun provides probable cause to arrest and search on suspicion that the person is carrying a concealed firearm in violation of A.S.C.A. § 46.4203 (a)(1). American Samoa Gov’t v. Faumuina, 3 A.S.R.3d 94 (Trial Div. 1999).

A “Terry stop and frisk” is an exception to the requirement that police possess a warrant in order to conduct a search. American Samoa Gov’t v. Faumuina, 3 A.S.R.3d 99 (Trial Div. 1999).

A “frisk” is a measure used by police to determine whether a person is carrying a weapon and to neutralize the threat of physical harm. American Samoa Gov’t v. Faumuina, 3 A.S.R.3d 99 (Trial Div. 1999).

A frisk must be limited in scope to that which is necessary for the discovery of weapons which might be used to harm the officer or others nearby. American Samoa Gov’t v. Faumuina, 3 A.S.R.3d 99 (Trial Div. 1999).

A frisk is justified if it meets two requirements: (1) it must be reasonably related in scope to the circumstances; and (2) it must be justified at its inception. American Samoa Gov’t v. Faumuina, 3 A.S.R.3d 99 (Trial Div. 1999).

In order for a frisk to be justified at it inception, the law enforcement officer must be rightfully in the presence of the party frisked and must suspect that the party may be armed and dangerous. American Samoa Gov’t v. Faumuina, 3 A.S.R.3d 99 (Trial Div. 1999).

Considerable deference is afforded law enforcement authorities in their assessment of whether a suspect may be armed and dangerous. American Samoa Gov’t v. Faumuina, 3 A.S.R.3d 99 (Trial Div. 1999).

Police officers are authorized to stop an individual, or a vehicle, when they have a reasonable, articulable suspicion that the person has been, is, or is about to be engaged in criminal activity. American Samoa Gov’t v. Kava, 4 A.S.R.3d 240 (Trial Div. 2000).

A police officer may order the driver of a car to step out of it, even without a suspicion of criminal activity, if the vehicle has been legitimately stopped. American Samoa Gov’t v. Kava, 4 A.S.R.3d 240 (Trial Div. 2000).

A trial judge’s determination that reasonable suspicion existed sufficient to justify a stop is reviewed de novo. Fuimaono v. Am. Samoa Gov’t, 6 A.S.R.3d 67 (App. Div. 2002).

Police officers may conduct a temporary investigative stop of an individual, or his/her vehicle, if the stop is based upon reasonable suspicion. Fuimaono v. Am. Samoa Gov’t, 6 A.S.R.3d 67 (App. Div. 2002).

§ 11(8) —Vehicle & Inventory Searches

A motorist stopped by a traffic officer may be detained briefly by that Officer, upon a reasonable belief that the driver was under the influence, until a qualified officer may be summoned by radio to administer field sobriety tests. American Samoa Gov’t v. Berry, 25 A.S.R.2d 149.

Under A.S.C.A. § 22.0803 an officer at the scene of an accident must conduct a personal investigation, and upon reasonable and grounds to believe a misdemeanor traffic offense, (or infraction), has occurred, issue a traffic citation. American Samoa Gov’t v. Berry, 25 A.S.R.2d 149.

A.S.C.A. § 22.0803 authorizes an investigating officer to view the accident scene and follow any driver involved therein who is receiving medical treatment and, if reasonable grounds exist, to issue that driver a traffic citation. American Samoa Gov’t v. Berry, 25 A.S.R.2d 149.

Only a valid arrest for D.U.I. invokes the implied consent to chemical testing under A.S.C.A. § 22.0601 et. seq. American Samoa Gov’t v. Berry, 25 A.S.R.2d 149.

A.S.C.A.§ 22.0803 does not apply to felonies. American Samoa Gov’t v. Berry, 25 A.S.R.2d 149.

It is beyond dispute that a stop of a motor vehicle at a check point or roadblock is a seizure within the meaning of the 4th Amendment. The precise issue for the Court to decide in such cases is whether or not the seizure is unreasonable, and therefore, prohibited. American Samoa Gov’t v. Mata`u, 25 A.S.R.2d 152.

D.U.I. roadblocks advance a legitimate government interest with minimal intrusions upon the rights of the motoring public. American Samoa Gov’t v. Mata`u, 25 A.S.R.2d 152.

The U.S. Supreme Court did not expressly require identical procedures as those set forth in Michigan State Police v. Sitz to insure the constitutionality of a D.U.I. roadblock. Local procedures which were substantially similar were sufficient. American Samoa Gov’t v. Mata`u, 25 A.S.R.2d 152.

Judicial review proceeds from the determination of whether the seizure was reasonable, considering, and balancing the government’s compelling interest in protecting the motoring public from alcohol related traffic accidents, with the individual’s constitutional right to be free from unreasonable seizures. American Samoa Gov’t v. Mata`u, 25 A.S.R.2d 152.

A stop of a motor vehicle at a check point or roadblock is a seizure within the meaning of the 4th Amendment. American Samoa Gov’t v. Mata`u, 29 A.S.R.2d 4.

For a valid arrest of a driver involved in an accident under A.S.C.A. § 22.0803, an officer at the scene of an accident must conduct a personal investigation, and, upon reasonable grounds to believe a misdemeanor traffic offense (or infraction) has occurred, issue a traffic citation. American Samoa Gov’t v. Berry, 29 A.S.R.2d 1.

A.S.C.A. § 22.0803 authorizes an investigating officer to view an accident scene and follow any driver involved therein who is receiving medical treatment and, if reasonable grounds exist to believe a misdemeanor traffic offense (or infraction) has occurred, to issue that driver a traffic citation. American Samoa Gov’t v. Berry, 29 A.S.R.2d 1.

A D.U.I. roadblock, which is brief, with low intensity questioning, safe and uniformly conducted is a reasonable seizure, advancing a legitimate government interest with minimal intrusion upon the rights of the motoring public. American Samoa Gov’t v. Mata`u, 29 A.S.R.2d 4.

Judicial review of whether a D.U.I. roadblock satisfies the 4^th Amendment proceeds from the determination of whether the seizure was reasonable, considering and balancing the government’s compelling interest in protecting the motoring public from alcohol related traffic accidents, with the individual’s constitutional right to be free from unreasonable seizures. American Samoa Gov’t v. Mata`u, 29 A.S.R.2d 4.

A traffic stop and Field Sobriety Tests is not an arrest and, therefore, Miranda warnings are not required, regardless of whether the suspect has a right to refuse the tests. Man v. American Samoa Gov’t, 29 A.S.R.2d 66.

Field Sobriety Tests are physical evidence, not testimonial evidence, and do not violate the privilege against self-incrimination. Man v. American Samoa Gov’t, 29 A.S.R.2d 66.

Individuals possess a diminished expectation of privacy with respect to automobiles. American Samoa Gov’t v. Ve`ae`a, 2 A.S.R.3d 109 (Trial Div. 1998).

An inventory search is an exception to the warrant requirement. American Samoa Gov’t v. Ve`ae`a, 2 A.S.R.3d 109 (Trial Div. 1998).

In determining whether an inventory search is proper, the court views the particular circumstances of the case and weighs the governmental interests advanced against the privacy interests invaded. American Samoa Gov’t v. Ve`ae`a, 2 A.S.R.3d 109 (Trial Div. 1998).

Inventory search was proper where police bore responsibility for defendant’s personal property in vehicle, where possession of vehicle had been obtained by defendant without owner’s permission, where vehicle would soon be returned to person with adverse interests to individual and where search performed pursuant to standard, established procedures. American Samoa Gov’t v. Ve`ae`a, 2 A.S.R.3d 109 (Trial Div. 1998).

The discovery of a rifle in a pickup truck provides probable cause to search the rest of the vehicle under the warrantless search “automobile exception.” There being no exigent circumstances requirement, the lesser expectancy of privacy in vehicle allows search at the time of seizure or at any time thereafter. American Samoa Gov’t v. Agasiva, 3 A.S.R.3d 110 (Trial Div. 1999).

An inventory search of an impounded vehicle reasonably conducted in good faith under standard procedures of the Department of Public Safety is a valid search. American Samoa Gov’t v. Agasiva, 3 A.S.R.3d 110 (Trial Div. 1999).

Under the “automobile exception” to the general requirement of a search warrant, police may search a vehicle without a warrant if they have probable cause to believe that it contains contraband or fruits, instrumentalities, or evidence of a crime. American Samoa Gov’t v. Kava, 4 A.S.R.3d 240 (Trial Div. 2000).

If the police have probable cause to search a vehicle, they may search the entire vehicle and all containers within the vehicle that might contain the object for which they are searching. American Samoa Gov’t v. Kava, 4 A.S.R.3d 240 (Trial Div. 2000).

Where officers noticed a juvenile drinking an alcoholic beverage in the back of a moving pickup truck with an open beer container and a half-empty six pack next to her, confirmed the driver’s knowledge of such event and his own drinking, they possessed probable cause for a search of the truck’s cab for evidence of the crimes of driving under the influence of alcohol and consuming alcohol in a public place. American Samoa Gov’t v. Kava, 4 A.S.R.3d 240 (Trial Div. 2000).

Reasonable suspicion is based on an objective standard that looks to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the stop. Fuimaono v. Am. Samoa Gov’t, 6 A.S.R.3d 67 (App. Div. 2002).

Where officer’s stop was based solely on tip from reliable informant that suspect had recently been engaged in a criminal activity, such information was sufficient to warrant a brief investigatory traffic stop. Fuimaono v. Am. Samoa Gov’t, 6 A.S.R.3d 67 (App. Div. 2002).

§ 11(9) —Border & Customs Searches

The provisions of the Revised Constitution of American Samoa as relates to searches and seizures by the government are exactly the same as the rights guaranteed by the Fourth Amendment to the U.S. Constitution; and the Supreme Court of the United States has made it clear that a “border search” may be subject to a significantly less demanding standard than required for searches within the interior. American Samoa Gov’t v. Vagavao, 3 A.S.R.3d 72 (Trial Div. 1999).

The law regarding a border pat down search is unsettled, but at most it requires only the articulation of some facts which would lead a reasonable and objective customs officer to believe a search is necessary. American Samoa Gov’t v. Vagavao, 3 A.S.R.3d 72 (Trial Div. 1999).

Observations made by a trained customs officer which, in sum, indicate that a pat down search was not conducted arbitrarily, include that the defendant deviated from his typical travel patterns, that his baggy clothing could enable concealment of contraband, and that he initially refused to comply fully with the request that he lift his shirt for visual inspection of his waistband. American Samoa Gov’t v. Vagavao, 3 A.S.R.3d 72 (Trial Div. 1999).

As with border pat down searches, the requirements for a border strip search vary from circuit to circuit, but require a heightened level of suspicion because of the increased intrusiveness of this type of search. American Samoa Gov’t v. Vagavao, 3 A.S.R.3d 72 (Trial Div. 1999).

Coupled with observations which support a border pat down search, the discovery during the pat down of unusual bulges, and the defendant’s plaintive “please” would lead a rational person and a trained customs officer to reasonably conclude that a person was likely to be smuggling contraband into American Samoa. American Samoa Gov’t v. Vagavao, 3 A.S.R.3d 72 (Trial Div. 1999).

Except as required to determine whether a minimum threshold level of suspicion is met, the court will not as a general rule attempt to substitute its own judgment for that of trained, experienced customs officers. American Samoa Gov’t v. Vagavao, 3 A.S.R.3d 72 (Trial Div. 1999).

Border searches are subject to a significantly less demanding standard than that required for searches within the interior of the country. American Samoa Gov’t v. Enoka, 5 A.S.R.3d 81 (Trial Div. 2001).

A.S.C.A. § 27.1002(a), the statutory provision that authorizes border searches by American Samoa customs officials, is constitutional under Article I, Section 5 of the Revised Constitution of American Samoa and the Fourth Amendment to the U.S Constitution. American Samoa Gov’t v. Enoka, 5 A.S.R.3d 81 (Trial Div. 2001).

Foreign national had no privacy interest with respect to waist pouch, worn in plain view on the outside of his clothing, at border crossing. American Samoa Gov’t v. Enoka, 5 A.S.R.3d 81 (Trial Div. 2001).

The routine search of an article of luggage at a border crossing which requires no pat-down or other bodily incursion, does not invoke constitutional protections. American Samoa Gov’t v. Enoka, 5 A.S.R.3d 81 (Trial Div. 2001).

§ 11(10)—Consensual Searches

Family members of senior matai may not grant police permission to enter certain communal land in order to conduct a search. Am. Samoa Gov’t v. Esera, 1 A.S.R.2d 90 (App. Div. 1983).

Consent obviates the need for a search warrant. American Samoa Gov’t v. Ve`ae`a, 2 A.S.R.3d 109 (Trial Div. 1998).

Anyone who has a reasonable expectation of privacy in the place being searched may consent to a warrantless search. American Samoa Gov’t v. Ve`ae`a, 2 A.S.R.3d 109 (Trial Div. 1998).

Determination of consent to enter is judged by an objective standard. American Samoa Gov’t v. Ve`ae`a, 2 A.S.R.3d 109 (Trial Div. 1998).

The test for determining whether consent to search has been given is whether the facts available to the officer at the moment of entry warrant a man of reasonable causation in the belief that the consenting party had authority over the premises. American Samoa Gov’t v. Ve`ae`a, 2 A.S.R.3d 109 (Trial Div. 1998).

The scope of a consent search is determined by how a reasonable person would have understood the conversation between the officer and the person when consent was given. American Samoa Gov’t v. Ve`ae`a, 2 A.S.R.3d 109 (Trial Div. 1998).

An officer may conduct a search after receiving consent to conduct the search from a person with authority to give permission. American Samoa Gov’t v. Faletogo, 4 A.S.R.3d 190 (Trial Div. 2000).

A party with part ownership and full access to a home has authority to consent to a search by police. American Samoa Gov’t v. Faletogo, 4 A.S.R.3d 190 (Trial Div. 2000).

Where police obtained voluntary and intelligent consent of appellant’s wife, a person with apparent rights to use or occupy the property equal to those of the appellant, appellant had no grounds to contest the warrantless search of his home. Faifaiese v. Am. Samoa Gov’t, 6 A.S.R.3d 10 (App. Div. 2002).

§ 11(11)—Search Incident to Arrest

When a valid arrest is made, officers may make a full search of both the suspect and the area within his immediate control for weapons and evidence, and where police have probable cause to arrest a suspect, a search may precede a formal arrest. American Samoa Gov’t v. Sefo, 2 A.S.R.3d 94 (Trial Div. 1998).

A search incident to a lawful arrest is an exception to the requirement of a search warrant. American Samoa Gov’t v. Ve`ae`a, 2 A.S.R.3d 109 (Trial Div. 1998).

When a person is arrested, “immediate control area” searches are subject to case-by-case analysis of factors as to the risk to officers or evidence. American Samoa Gov’t v. Kaplan, 3 A.S.R.3d 86 (Trial Div. 1999).

A person in handcuffs is effectively limited as to the surrounding area over which he has “control,” and a search of such area is generally unwarranted; the fact of handcuffing is persuasive but does not alone cause such search to be illegal. American Samoa Gov’t v. Kaplan, 3 A.S.R.3d 86 (Trial Div. 1999).

Where an arrestee is handcuffed, the suspected crime is nonviolent in nature, the evidence of that crime is not easily destructible by a handcuffed arrestee, the arrestee was not surprised in the act of committing a crime, he is alone in a small shack and shows no sign of resistance, and two able officers are present, the degree of risk does not justify a warrantless search of the premises. American Samoa Gov’t v. Kaplan, 3 A.S.R.3d 86 (Trial Div. 1999).

A protective search is permissible after a suspect is handcuffed. American Samoa Gov’t v. Faumuina, 3 A.S.R.3d 94 (Trial Div. 1999).

Where police conducted second patdown of accused, subsequent to being arrested and handcuffed, such search was reasonable as a protective search. American Samoa Gov’t v. Faumuina, 3 A.S.R.3d 99 (Trial Div. 1999).

§ 11(12)—Plain View Doctrine

Under the “plain-view” doctrine, property may be seized without a warrant when: (1) the police officer’s initial intrusion or presence in an area is lawful; (2) his discovery of incriminating evidence is inadvertent; and (3) the incriminating nature of the property seized is immediately apparent. American Samoa Gov’t v. Loia, 16 A.S.R.2d 1.

Incriminating nature of property seized is immediately apparent when an officer has probable cause to believe that the property found in plain view is incriminating; certain knowledge of its incriminating nature is not required. American Samoa Gov’t v. Loia, 16 A.S.R.2d 1.

Warrantless seizure of marijuana “roaches” from auto ashtray was justified under the “plain view” doctrine, where officers first followed auto because it was speeding without tail lights, looked inside it with a flashlight to find the key in order to move it for reasons of safety, and while looking for the key saw currency and rolled and twisted cigarette butts in the auto ashtray. American Samoa Gov’t v. Loia, 16 A.S.R.2d 1.

The plain view doctrine is a recognized exception to the requirement of a search warrant in American Samoa, and permits a warrantless seizure of private property when three conditions are satisfied: (1) the police officer’s presence in the area is lawful; (2) the discovery of the evidence is inadvertent; and (3) the incriminating nature of the evidence is immediately apparent. American Samoa Government v. Loia, 16 A.S.R.2d 1, 3 (Trial Div. 1990). American Samoa Gov’t v. Seiuli, 29 A.S.R.2d 26.

Police officers would not be justified in seizing objects not listed in the warrant if they came into the plain view of the officer only after deliberate rummaging and after all items listed in the warrant had already been seized. American Samoa Gov’t v. Seiuli, 29 A.S.R.2d 26.

The “plain view” doctrine is a recognized exception to the requirement of a warrant in American Samoa, and permits a warrantless seizure of private property when three conditions are satisfied: (1) the police officer’s presence in the area must be lawful; (2) the discovery of the evidence must be inadvertent; and (3) the incriminating nature of the evidence must be immediately apparent. American Samoa Gov’t v. Loia, 16 A.S.R.2d 1, 3 (Trial Div. 1990). Am. Samoa Gov’t v. Suani, 29 A.S.R. 2d 38.

The plain view doctrine does not authorize search and seizure of items contained within objects like attache cases, file cabinets, and luggage that are themselves in plain view. A plain view seizure is limited to items that are clearly incriminating and that are inadvertently encountered in the course of a justifiable intrusion. Am. Samoa Gov’t v. Suani, 29 A.S.R.2d 38.

The contents of a container may not be discovered under the plain view exception unless it is “immediately apparent” that the container probably holds incriminating evidence (such as a weapon case might), or is of itself somewhat incriminating. Am. Samoa Gov’t v. Suani, 29 A.S.R. 2d 38.

Under the “plain view” exception the Exclusionary Rule, a warrantless seizure of private property may nevertheless be permitted when three requirements have been met: (1) the police officer must lawfully make an “initial intrusion” or otherwise properly be in a position from which he can view a particular area; (2) the officer must discover incriminating evidence inadvertently; and (3) it must be “immediately apparent” to the police that the items they observe may be evidence of a crime, contraband, or otherwise subject to seizure. American Samoa Gov’t v. Tuaolo, 3 A.S.R.3d 78 (Trial Div. 1999)..

If a search continues after all the items identified on a search warrant have been found, then further search activity may constitute an unlawful intrusion and render the plain view exception inapplicable. American Samoa Gov’t v. Tuaolo, 3 A.S.R.3d 78 (Trial Div. 1999)..

In determining whether the incriminating nature of the evidence was immediately apparent to the officer discovering it, the Court examines whether the police officer reasonably believed that the item might be contraband, stolen property or useful as evidence of a crime. American Samoa Gov’t v. Tuaolo, 3 A.S.R.3d 78 (Trial Div. 1999).

The test for evidence found in “plain view” does not demand any showing that the officer’s belief, in the incriminating nature of the item, be correct or more likely true than false. American Samoa Gov’t v. Tuaolo, 3 A.S.R.3d 78 (Trial Div. 1999).

Where an officer is legitimately within a vehicle being impounded incident to arrest, and inadvertently comes across an incriminating object by feeling it, the “plain feel” variation of the “plain view” doctrine applies. American Samoa Gov’t v. Agasiva, 3 A.S.R.3d 110 (Trial Div. 1999).

Police may make a warrantless seizure under the “plain view” exception when they: (1) are lawfully in a position to observe the item seized; (2) discover the item in plain view; and (3) immediately recognize the incriminating character of the item. American Samoa Gov’t v. Kava, 4 A.S.R.3d 240 (Trial Div. 2000).

§ 11(13)—Open Fields Doctrine & Curtilage

The special protection accorded by the Fourth Amendment against unreasonable searches is not extended to open fields. American Samoa Gov’t v. Tauoa, 2 A.S.R.3d 81 (Trial Div. 1998).

The curtilage of the home is considered part of the home for Fourth Amendment purposes. American Samoa Gov’t v. Tauoa, 2 A.S.R.3d 81 (Trial Div. 1998).

Four useful factors in determining whether the area in question is part of the curtilage of the home are: (1) the proximity of the area to the home, (2) whether the area is included within an enclosure surrounding the home, (3) the nature of the uses to which the area is put, and (4) the steps taken by the resident to protect the area from observation by people passing by. American Samoa Gov’t v. Tauoa, 2 A.S.R.3d 81 (Trial Div. 1998).

The Fourth Amendment does not protect the merely subjective expectation of privacy, but only expectations that society is prepared to recognize as reasonable. American Samoa Gov’t v. Tauoa, 2 A.S.R.3d 81 (Trial Div. 1998).

An area need not be “open” or a “field” to fall under the “open field” exception to the Fourth Amendment. American Samoa Gov’t v. Tauoa, 2 A.S.R.3d 81 (Trial Div. 1998).

There is no societal interest in protecting the privacy of cultivation of crops that occur in open fields. American Samoa Gov’t v. Tauoa, 2 A.S.R.3d 81 (Trial Div. 1998).

Where clearing, located on side of mountain, could not be seen from the defendant’s home, was not enclosed, was used only for crop cultivation, and where no steps had been taken to protect it from observation, said clearing would not be considered part of the “curtilage” of the defendant’s home. American Samoa Gov’t v. Tauoa, 2 A.S.R.3d 81 (Trial Div. 1998).

Open fields do not give rise to an expectation of privacy, do not constitute “curtilage” and are not afforded the special protections of Article I, § 5 of the Revised Constitution of American Samoa. American Samoa Gov’t v. Tauoa, 2 A.S.R.3d 87 (Trial Div. 1998).

With regard to the Dunn four factor test for determining whether land is part of the “curtilage” of one’s home, no singular factor is controlling. American Samoa Gov’t v. Tauoa, 2 A.S.R.3d 87 (Trial Div. 1998).

The fact an area is held as communal land is not determinative with regard to its characterization as “curtilage” or “open fields.” American Samoa Gov’t v. Tauoa, 2 A.S.R.3d 87 (Trial Div. 1998).

§ 11(14)—Application of Exclusionary Rule

Evidence obtained from an illegal search and seizure is inadmissible, not only in criminal proceedings but also in probation revocation proceedings. Rev’d Const. Am. Samoa art. I § 5. American Samoa Gov’t v. Peni Samana, 8 A.S.R.2d 1.

The government was not estopped from arguing that a warrantless search and seizure was valid for purposes of a second possession charge where the second charge stemmed from marijuana found on defendant while booking him on an arrest warrant for a first possession charge, the warrant for the first charge was based on marijuana found during the warrantless search and seizure, and the warrantless search and seizure was held unlawful by the lower court in dismissing the first possessions charge stemming from the search; held, since the High Court was considering the second charge the legality of the warrantless search for that purpose was an issue properly before the court. American Samoa Gov’t v. Loia, 15 A.S.R.2d 126.

Exclusionary rule developed as a prophylactic measure against police excessiveness. American Samoa Gov’t v. Afamasaga, 17 A.S.R.2d 145.

Court need not decide whether an arrest was valid when the statement and photos sought to be suppressed were taken earlier, since there was no causal relationship between the arrest and the evidence sought to be suppressed. American Samoa Gov’t v. Afamasaga, 17 A.S.R.2d 145.

If the police are able to identify witnesses through independent investigation, the fact that the witnesses were also identified by illegally-seized evidence will not bar their testimony. American Samoa Gov’t v. Whitney, 20 A.S.R.2d 43.

If there is insufficient proof to show that a witness would have been discovered without using illegally-seized evidence, that witness’s testimony will be excluded. American Samoa Gov’t v. Whitney, 20 A.S.R.2d 43.

Although the time differential and intervening circumstances may sever the relationship between an illegal arrest and a confession, the culpability of the police does not abrogate the application of the territorial constitution’s exclusionary rule. Rev. Const. Am. Samoa Art. I, § 5. American Samoa Gov’t v. Sefo, 21 A.S.R.2d 32.

The good faith exception to the exclusionary rule, created by the Supreme Court in U.S. v. Leon, 468 U.S. 897 (1984), does not apply in the territory to the codification of the exclusionary rule in Art. I, Section 5 of the Revised Constitution of American Samoa. American Samoa v. Stephens, 29 A.S.R.2d 6.

The threshold question for suppressing all evidence obtained in a search is whether or not the behavior of the officers is so unconscionable as to rise to the level of a due process violation. Due process is violated only where there is flagrant disregard for the limitations of the search warrant, transforming the particularized warrant into a general search. American Samoa Gov’t v. Seiuli, 29 A.S.R.2d 6.

Generally, the exclusionary rule does not require the suppression of evidence within the scope of a warrant simply because other items outside the scope of the warrant were unlawfully taken as well. The threshold question for suppressing all evidence obtained in a search is whether or not the behavior of the police officers is so unconscionable as to rise to the level of a due process violation. Am. Samoa Gov’t v. Suani, 29 A.S.R. 2d 38.

In order to quash a warrant, the court must determine that the magistrate or judge in issuing the warrant was misled by information in the affidavit that the affiant knew was false or would have known was false except for his reckless disregard of the truth. American Samoa Gov’t v. Samana, 30 A.S.R.2d 37.

The fact that an affidavit contains a falsity is not enough to negate the probable cause underlying a warrant unless the affiant knew of or recklessly disregarded the falsity. American Samoa Gov’t v. Samana, 30 A.S.R.2d 37.

A defendant can challenge a facially valid warrant by showing that (1) the affidavit contains information that the affiant knew was false or would have known was false but for his reckless disregard for the truth; and that (2) absent the false information, the affidavit would not support a showing of probable cause to issue the warrant. American Samoa Gov’t v. Samana, 30 A.S.R.2d 98.

Once the defendant makes a preliminary showing that a warrant is invalid, the court must hold a hearing at the defendant’s request. American Samoa Gov’t v. Samana, 30 A.S.R.2d 98.

If the court concludes that a magistrate that issued a warrant was misled by information in an affidavit that was intentionally or recklessly false, then the evidence gained under the warrant must be suppressed. American Samoa Gov’t v. Samana, 30 A.S.R.2d 98.

When an officer discovers that an affidavit supporting a warrant contains substantially false matter after a warrant is issued but before the warrant is executed, the correct remedy is suppression when the officer reasonably should have known that the falsity casts doubt on the probable cause presented by the affidavit but does nothing about it. American Samoa Gov’t v. Samana, 30 A.S.R.2d 98.

Unlike the Fourth Amendment protection under the U.S. Constitution, whereby the exclusionary rule exists to deter police misconduct rather than existing as a personal constitutional right of the party aggrieved, the exclusionary rule may very well be a personal constitutional right in this jurisdiction under the American Samoa Constitution. U.S. Const. Amend IV, Am. Sam. Const. art I § 5. American Samoa Gov’t v. Samana, 30 A.S.R.2d 98.

When material information tending to seriously undermine the probable cause upon which a warrant was issued is received by the officer before the warrant is executed, the officer must provide this new information to the judge and have the warrant modified or have a new warrant issued. If he does not, and if the new information eliminates the basis for probable cause supporting the warrant, the warrant must be quashed and all evidence obtained under it suppressed. American Samoa Gov’t v. Samana, 30 A.S.R.2d 98.

For a warrant to be valid, an officer must objectively and reasonably believe that the judge’s determination of probable cause was correct. American Samoa Gov’t v. Samana, 30 A.S.R.2d 98.

When an officer proceeds to execute a warrant that the officer discovers is based on erroneous information and the new information substantially undermines the judge’s determination of probable cause, the evidence seized must be suppressed. American Samoa Gov’t v. Samana, 30 A.S.R.2d 98.

The test in a Franks inquiry is two-pronged: (1) did the officer knowingly or recklessly disregard the truth; and (2) absent the false information, does the affidavit lack probable cause for the issuing of the warrant? If the answer to either of these inquiries is negative, then the warrant remains valid and the evidence will not be suppressed. American Samoa Gov’t v. Samana, 30 A.S.R.2d 98.

Had police violated another individual’s constitutional rights in conducting warrantless search, such violation would not justify exclusion of the seized evidence against the named defendant. American Samoa Gov’t v. Dunham, 1 A.S.R.3d 176 (Trial Div. 1997).

Article 1, Section 5 of the Revised Constitution of American Samoa requires that a search warrant particularly describe the persons or things to be seized. Items seized in violation of Article 1, Section 5 shall not be admitted in any court. American Samoa Gov’t v. Tuaolo, 3 A.S.R.3d 78 (Trial Div. 1999).

The “inadvertent discovery” requirement of the Exclusionary Rule means that an officer may not rely on the plain-view doctrine only as a pretext, knowing in advance the location of certain evidence and intending to seize it. American Samoa Gov’t v. Tuaolo, 3 A.S.R.3d 78 (Trial Div. 1999).

Under the rule of exclusion, items seized illegally may be suppressed upon a timely motion; evidence obtained in violation of Constitutional protections shall not be admitted in any court. American Samoa Gov’t v. Faumuina, 3 A.S.R.3d 94 (Trial Div. 1999).

Under the Exclusionary Rule, items seized illegally may be suppressed upon a timely motion. American Samoa Gov’t v. Faumuina, 3 A.S.R.3d 99 (Trial Div. 1999).

The exclusionary rule in American Samoa requires that the Court prohibit introduction of that evidence at a criminal trial which is obtained in violation of Article I, Sections 5 and 6 of the Revised Constitution of American Samoa. American Samoa Gov’t v. Kava, 4 A.S.R.3d 240 (Trial Div. 2000).

The Exclusionary rule is explicitly established in the Revised Constitution of American Samoa. Faifaiese v. Am. Samoa Gov’t, 6 A.S.R.3d 10 (App. Div. 2002).

§ 11(15)—Arrests

A warrantless arrest is improper if the government does not present evidence on which a court may judge “reasonableness.” Rev. Const. Am. Samoa Art. I, § 5. American Samoa Gov’t v. Sefo, 21 A.S.R.2d 32.

Generally, an arrest, whether with or without a warrant, must be supported by probable cause. Rev. Const. Am. Samoa Art. I, § 5; A.S.C.A. § 46.0805(3). American Samoa Gov’t v. Luki, 21 A.S.R.2d 82.

A defendant was not illegally taken into custody without a warrant when he voluntarily agreed to a police officer’s request to go to the station for questioning. American Samoa Gov’t v. Luki, 21 A.S.R.2d 84.

Reflecting the “ancient common-law rule” that an officer may make a warrantless arrest if reasonable grounds of a felony’s commission exist, even if it occurred outside of his presence, a warrantless arrest is not invalid merely because a warrant could have been obtained but was not. U.S. Const. Amend. IV; Rev. Const. Am. Samoa Art. I, § 5. American Samoa Gov’t v. Gotoloai, 23 A.S.R.2d 65.

Arrests and searches are treated differently because “unreasonable search and arrest” provisions are concerned with restricting the use of general search warrants, not with prohibiting warrantless felony arrests; as such, warrantless arrests are permissible if supported by probable cause. U.S. Const. Amend. IV; Rev. Const. Am. Samoa Art. I, § 5; A.S.C.A. §§ 46.0801 et seq. American Samoa Gov’t v. Gotoloai, 23 A.S.R.2d 65.

Reflecting the common-law rules, the exceptions to American Samoa’s arrest-warrant requirement include arrests of felony suspects near a crime scene shortly after a crime’s commission, arrests for misdemeanors and felonies committed in an officer’s presence, and arrests based on “reasonable grounds” that a felony or breach of the peace has been committed. U.S. Const. Amend. IV; Rev. Const. Am. Samoa Art. I, § 5; A.S.C.A. §§ 46.0801 et seq. American Samoa Gov’t v. Gotoloai, 23 A.S.R.2d 65.

The meaning of statutory provisions generally requiring an arrest warrant must be ascertained in light of the purpose of promoting efficient law enforcement, while protecting individual rights, and of the traditional and almost universal practice of warrantless arrests. U.S. Const. Amend. IV; Rev. Const. Am. Samoa Art. I, § 5; A.S.C.A. §§ 46.0801 et seq. American Samoa Gov’t v. Gotoloai, 23 A.S.R.2d 65.

A person who was pursued for a traffic offense by a police officer, apprehended, identified, and taken into custody by another officer, taken to the Police Station, and subsequently administered field sobriety tests and then arrested for D.U.I. could not have been legally arrested at the Police Station. American Samoa Gov’t v. Berry, 25 A.S.R.2d 149.

Officers may upon reasonable grounds, arrest persons found near the scene of a felony within a short time after its commission. American Samoa Gov’t v. Berry, 25 A.S.R.2d 149.

A warrantless arrest of a suspect is reasonable where the suspect is found near the scene of a felonious crime, where there are reasonable grounds to believe that the suspect committed the crime, and where the arrest occurs within a short period of time after the crime has occurred. American Samoa Gov’t v. Pino, 1 A.S.R.3d 186 (Trial Div. 1997).

A child may be taken into temporary custody by a law enforcement officer without order of the court when there are reasonable grounds to believe that he or she has committed an act which would be a felony or misdemeanor if committed by an adult. American Samoa Gov’t v. Pino, 1 A.S.R.3d 186 (Trial Div. 1997).

The term “reasonable grounds,” in the context of an arrest, is substantially the same as “probable cause.” American Samoa Gov’t v. Pino, 1 A.S.R.3d 186 (Trial Div. 1997).

Probable cause for a warrantless arrest must exist at the time the arrest is made, and the government has the burden of showing that such probable cause existed. American Samoa Gov’t v. Pino, 1 A.S.R.3d 186 (Trial Div. 1997).

“Reasonable grounds” existed to detain juvenile suspect where officers knew that the victim’s body had been found that afternoon on beach, where they also knew that bruising on the victim’s neck indicated possible strangling in ocean, where suspect had been seen in area and at time that victim last seen alive, where suspect was reported to be acting nervously, and where suspect fled in response to request for information. American Samoa Gov’t v. Pino, 1 A.S.R.3d 186 (Trial Div. 1997).

Where officers came upon marijuana-growing operation and suspect spontaneously admitted to owning the growing marijuana, said officers had reasonable grounds to believe suspect had committed a felony and were justified under either A.S.C.A. § 46.0805(1) or § 46.0805(3) in conducting a warrantless arrest thereafter. American Samoa Gov’t v. Tauoa, 2 A.S.R.3d 81 (Trial Div. 1998).

Under A.S.C.A. § 46.0805, an arrest made without a warrant is authorized when a felony is committed in an officer’s presence, or if the person arrested is found near the scene of a felony, is reasonably suspected of committing it, and the arrest comes shortly after the crime. American Samoa Gov’t v. Sefo, 2 A.S.R.3d 94 (Trial Div. 1998).

Probable cause is more than bare suspicion and less than absolute certainty, and the existence of probable cause is determined from the totality of the circumstances; it can arise from witnessing the apparent purchase of drugs. American Samoa Gov’t v. Sefo, 2 A.S.R.3d 94 (Trial Div. 1998).

An arrest warrant must be issued by a neutral and detached magistrate. American Samoa Gov’t v. Moe, 3 A.S.R.3d 106 (Trial Div. 1999).

A magistrate impermissibly lacks neutrality where he or she is involved in law enforcement activities, has a pecuniary interest in the outcome of his decision, or has ‘wholly abandoned’ his judicial role. American Samoa Gov’t v. Moe, 3 A.S.R.3d 106 (Trial Div. 1999).

Justice’s action in alerting Attorney General to possible violation of statutory rape law by forwarding marriage waiver form to A.G.’s attention for such action as he “may deem appropriate” did not constitute law enforcement nor did it advocate prosecution, and justice was not prohibited from later reviewing and granting application for warrant of arrest of individual named in waiver form. American Samoa Gov’t v. Moe, 3 A.S.R.3d 106 (Trial Div. 1999).

Judges are the only officials authorized to issue arrest warrants in American Samoa. American Samoa Gov’t v. Moe, 3 A.S.R.3d 106 (Trial Div. 1999).

A police officer is authorized to make a warrantless arrest of a person who commits a misdemeanor in his presence, or to prevent a future breach of the peace; and the defendant was properly arrested under the valid public peace disturbance statute. American Samoa Gov’t v. Agasiva, 3 A.S.R.3d 110 (Trial Div. 1999).

Though police questioning takes place at a police station, that fact alone does not convert an otherwise volitional act into an arrest. Am. Samoa Gov’t v. Ropati, 7 A.S.R.3d 69 (Trial Div. 2003).

§ 11(16)—Detention of Foreign Nationals

Aliens may not be arrested without warrants unless the circumstances are extraordinary. Tumui v. Fa’alevao, 2 A.S.R.2d 33 (Trial Div. 1983).

Article 36(1)(b) of the Vienna Convention requires that foreign nationals arrested or otherwise detained be informed that they have right to notify the consular post of their country that they have been detained and that such communication be made without delay. American Samoa Gov’t v. Enoka, 5 A.S.R.3d 81 (Trial Div. 2001).

There may exist remedies where the consular notification requirement of the Vienna Convention has been violated, but exclusion of evidence is not one of them. American Samoa Gov’t v. Enoka, 5 A.S.R.3d 81 (Trial Div. 2001).

Violation of the Vienna Convention consular notification requirement does not require suppression of subsequently-obtained evidence in a criminal proceeding against a foreign national. American Samoa Gov’t v. Enoka, 5 A.S.R.3d 81 (Trial Div. 2001).

§ 12 Counsel

SEE LEGAL PROFESSION

§ 12(1) —General Provisions

While “practice of law” is a general term, it is sufficiently definite that its employment in a criminal statute satisfies the demands of due process. A.S.C.A. § 31.0104. Pene v. American Samoa Gov’t, 12 A.S.R.2d 43.

“Practice of law” includes legal representation of another in court or in settlement negotiations with opposing attorneys. A.S.C.A. § 31.0104. Pene v. American Samoa Gov’t, 12 A.S.R.2d 43.

§ 12(2) —Right to Counsel

An indigent defendant’s constitutional right to assistance of counsel includes the right to necessary investigative assistance. Am. Samoa Gov’t v. Tuvale, 2 A.S.R.2d 92 (Trial Div. 1986).

An indigent defendant who wishes to have an expert appointed or test conducted at public expense may move the court for such an order and, in accordance with certain procedures, may move and be heard ex parte if notice to the Attorney General would inhibit his defense. Am. Samoa Gov’t v. Tuvale, 2 A.S.R.2d 92 (Trial Div. 1986).

It is the responsibility of the executive branch to pay for those experts or tests ordered by the court for indigent defendants. Am. Samoa Gov’t v. Tuvale, 2 A.S.R.2d 92 (Trial Div. 1986).

Counsel should be appointed by the court without cost to a criminal defendant only when he is genuinely unable to pay for his own lawyer. American Samoa Gov’t v. Fesagaiga, 4 A.S.R.2d 29.

For the purpose of determining whether a criminal defendant is unable to pay for his own lawyer, the court should consider all funds available to the defendant from all sources, not just the income from his employment. American Samoa Gov’t v. Fesagaiga, 4 A.S.R.2d 29.

That criminal defendant’s case would almost certainly have been better conducted by a lawyer does not free the defendant from the consequences of his choice to represent himself; he is not entitled first to insist on his right to defend himself and then to insist that his conviction must be reversed because his defense was less than competent. Pene v. American Samoa Gov’t, 12 A.S.R.2d 43.

Constitutional right to assistance of counsel in traffic cases does not attach unless defendant is sentenced to serve time in jail. American Samoa Gov’t v. Malae, 10 A.S.R.2d 99.

Defendant is free to represent himself at any stage of criminal proceedings, including competency hearings. Pene v. American Samoa Gov’t, 12 A.S.R.2d 43.

Defendant’s right to assistance of counsel was not violated where he chose to represent himself and on appeal presented no evidence that such choice was involuntary or that he was unaware of attendant risks. Pene v. American Samoa Gov’t, 12 A.S.R.2d 43.

As officers of the court, members of the bar may be appointed, without compensation if necessary, as counsel to insure that indigent criminal defendants receive legal representation. Rev. Const. Am. Samoa Art. I, § 6; A.S.C.A. §§ 46.0502(2), 46.1001. American Samoa Gov’t v. Wilson, 23 A.S.R.2d 159.

Severe economic hardship is a factor which the court may appropriately consider in deciding whether to permit an attorney to withdraw as counsel. American Samoa Gov’t v. Wilson, 23 A.S.R.2d 159.

§ 12(3)—Effective Assistance of Counsel

An indigent defendant’s constitutional right to assistance of counsel includes the right to necessary investigative assistance. Am. Samoa Gov’t v. Tuvale, 2 A.S.R.2d 92 (Trial Div. 1986).

Territorial statute permitting jurors who can read, speak, and understand Samoan but not English does not violate defendant’s constitutional right to effective assistance of counsel. 46 A.S.C.A. § 46.1504. American Samoa Gov’t v. Agasiva, 4 A.S.R.2d 110.

Right to effective assistance of counsel applies in American Samoa. Am. Samoa Rev. Const. art I, § 6; A.S.C.A. §§ 46.0502, 46.1001. Suisala v. Moaali’itele, 6 A.S.R.2d 15.

Right to effective assistance of counsel entitles a criminal defendant not to errorless representation, but to meaningful adversarial testing of prosecution’s case. Suisala v. Moaali’itele, 6 A.S.R.2d 15.

Counsel can meet constitutional standard for effective assistance by advising client to plead guilty if that advice falls within the range of competent representation under the circumstances. Suisala v. Moaali’itele, 6 A.S.R.2d 15.

In order to overcome strong presumption of effectiveness and meet burden of proof, defendant attacking effectiveness of counsel must show specific unreasonable errors and a reasonable likelihood that absence of those errors would have changed the result of the case. Suisala v. Moaali’itele, 6 A.S.R.2d 15.

Defense counsel’s extensive pre-trial discovery, including interviewing witnesses, amassing and reviewing documents, and conferring with defendant, was well above constitutional standard of effective representation. Suisala v. Moaali’itele, 6 A.S.R.2d 15.

Counsel’s alleged failure to apprise court of facts tending to show defendant’s innocence did not amount to constitutionally ineffective representation when defendant failed to show how those facts could have changed the result at trial, and when defendant himself related those facts to the court at his sentencing. Suisala v. Moaali’itele, 6 A.S.R.2d 15.

Habeas corpus petitioner’s testimony that his attorney failed to advise him of the possibility and meaning of consecutive sentences was overcome by attorney’s contradictory testimony, since attorney’s credibility remained intact but petitioner’s credibility was undermined by his pattern of serious but unsupported allegations. Suisala v. Moaali’itele, 6 A.S.R.2d 15.

Evidence of full, adequate representation at sentencing hearing, combined with absence of any indication that resulting sentence was inappropriate, defeated habeas corpus petitioner’s argument that his counsel’s failure to move for post-trial reduction of sentence amounted to ineffective representation. Suisala v. Moaali’itele, 6 A.S.R.2d 15.

Counsel’s failure to assert defense of intoxication could not prejudice defendant’s right to effective assistance of counsel when proof of intoxication would not have legally negated the required criminal intent. American Samoa Gov’t v. Agasiva, 6 A.S.R.2d 32.

Defendant charged with traffic infraction who was represented by counsel in traffic case and had appeared in court with his counsel, who later chose to appear without counsel to plead guilty to the infraction, could not object to introduction of guilty plea as evidence in collateral prosecution for driving with suspended license on ground that he had been denied effective assistance of counsel. American Samoa Gov’t v. Malae, 10 A.S.R.2d 99.

In order to establish ineffective assistance of counsel, the claimant must prove both that defense counsel’s performance fell below an objective standard of reasonableness under prevailing professional norms, and that his defense was prejudiced by counsel’s substandard performance. Man v. American Samoa Gov’t, 29 A.S.R.2d 66.

The test for prejudice requires a showing that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Man v. American Samoa Gov’t, 29 A.S.R.2d 66.

The standard of proof for establishing ineffective assistance of counsel is viewed against a strong presumption of effectiveness. Man v. American Samoa Gov’t, 29 A.S.R.2d 66.

Matters of trial strategy are not challengeable on appeal. Man v. American Samoa Gov’t, 29 A.S.R.2d 66.

The representation of more than one accused by the same attorney is not per se violative of the Sixth Amendment’s constitutional guarantee of effective assistance of counsel. American Samoa Gov’t v. Amani, 2 A.S.R.3d 71 (Trial Div. 1998).

No bright-line rules exist with respect to situations involving conflicts of interest in a criminal case; the court must look at the particular facts to determine whether a Sixth Amendment violation is present. American Samoa Gov’t v. Amani, 2 A.S.R.3d 71 (Trial Div. 1998).

The Sixth Amendment does not guarantee an accused the right to perfect representation, but merely adequate and fair representation. American Samoa Gov’t v. Amani, 2 A.S.R.3d 71 (Trial Div. 1998).

In order to prove that a Sixth Amendment violation exists, the defendant must show both that: (1) counsel’s performance was deficient, having made errors so serious that counsel was not truly functioning as “counsel”; and (2) the deficient performance prejudiced the defendant’s defense. American Samoa Gov’t v. Amani, 2 A.S.R.3d 71 (Trial Div. 1998).

The United States Supreme Court defines the standard for judging attorney performance as that of reasonably effective assistance considering all the circumstances. American Samoa Gov’t v. Amani, 2 A.S.R.3d 71 (Trial Div. 1998).

A potential conflict of interest does not rise to the level of a constitutional violation; an actual present conflict of interest must exist to trigger judicial review. American Samoa Gov’t v. Amani, 2 A.S.R.3d 71 (Trial Div. 1998).

Where Deputy Public Defender was closely related to co-defendant and client-defendant asserted co-defendant, not he, was the culpable party, zealous representation of client would be directly averse to the interests of relative and therefore conflict of interest existed which foreclosed representation by Deputy Public Defender. American Samoa Gov’t v. Amani, 2 A.S.R.3d 71 (Trial Div. 1998).

Where court directed Public Defender’s Office to assign a separate, single attorney for each defendant, but to assign them in such fashion as the office preferred, conflict of interest which was subsequently created was an artificial one and the result of office mismanagement. American Samoa Gov’t v. Amani, 2 A.S.R.3d 71 (Trial Div. 1998).

Assignment of attorneys to criminal defendants within the Public Defender’s Office, when imprudent and resulting in an “artificial” conflict of interest can be cause for sanctions. American Samoa Gov’t v. Amani, 2 A.S.R.3d 71 (Trial Div. 1998).

The burden is on an accused to show both that his counsel acted incompetently and that without such incompetence, the case would likely have resulted in a different outcome. American Samoa Gov’t v. Pearson, 4 A.S.R.3d 56 (Trial Div. 2000).

Criminal defense attorneys are presumed to be effective. American Samoa Gov’t v. Pearson, 4 A.S.R.3d 56 (Trial Div. 2000).

An attorney’s legal advice is unconstitutionally deficient if it fails to meet the standard of “a reasonably competent attorney” in a criminal case. American Samoa Gov’t v. Pearson, 4 A.S.R.3d 56 (Trial Div. 2000).

Advising a client to plead guilty can meet the standard for effective assistance of counsel if that advice falls within the range of competent representation under the circumstances. American Samoa Gov’t v. Pearson, 4 A.S.R.3d 56 (Trial Div. 2000).

The number and length of meetings between a defendant and his counsel do not alone determine whether counsel rendered adequate advice. American Samoa Gov’t v. Pearson, 4 A.S.R.3d 56 (Trial Div. 2000).

A defendant cannot successfully claim coercion simply because he pled guilty after relying on counsel’s recommendation. American Samoa Gov’t v. Pearson, 4 A.S.R.3d 56 (Trial Div. 2000).

One meeting between a defendant and counsel may be sufficient to afford the defendant an adequate opportunity to understand a plea agreement. American Samoa Gov’t v. Pearson, 4 A.S.R.3d 56 (Trial Div. 2000).

In order to demonstrate ineffective assistance of counsel, a criminal defendant must show specific unreasonable errors and a reasonable likelihood that the absence of such errors would have changed the result of the case. Isaia v. Am. Samoa Gov’t, 6 A.S.R.3d 3 (App. Div. 2002).

The effective assistance of counsel requires a State or Territory to take steps to assure that the defendant has a fair opportunity to present his defense, and a court must assure that the basic tools of an adequate defense are provided to defendants who cannot afford to pay for them. American Samoa Gov’t v. Sanerivi, 7 A.S.R.3d 114 (Trial Div. 2003).

Interviewing witnesses is an essential ingredient to an attorney effectively representing a defendant in a criminal case, and one basic tool of an adequate defense is funds to pay the necessary and essential expenses of interviewing the material witnesses. American Samoa Gov’t v. Sanerivi, 7 A.S.R.3d 114 (Trial Div. 2003).

Before a court approves funding for services for an indigent, such a defendant generally must show why the requested services are necessary to an adequate defense, and what the defendant expects to find by using the services. American Samoa Gov’t v. Sanerivi, 7 A.S.R.3d 114 (Trial Div. 2003).

A court’s determination of what is necessary to an adequate defense should not be overly rigid, as long as a reasonable attorney would engage such services for a client having the independent financial means to pay for them. American Samoa Gov’t v. Sanerivi, 7 A.S.R.3d 114 (Trial Div. 2003).

§ 12(4)—Prosecutorial Misconduct

The government acts improperly when it introduces evidence of defendant’s pleas of nolo contendere in previous criminal proceedings. T.C.R.Ev. 410. American Samoa Gov’t v. Solaita, 27 A.S.R.2d 9.

Where the trial court determines that government agents’ misconduct during trial should not be lightly taken but did not materially or prejudicially compromise or otherwise damage the defense because the agents did not learn anything about the defense they would not have learned from the prosecution in discussing their testimony, and where the Defendant does not provide evidence that such determination is clearly erroneous, the court defers to the trial court’s factual determination that the misconduct did not affect the agents’ testimony. Pua’a v. American Samoa Gov’t, 3 A.S.R.3d 39 (App. Div. 1999).

Prosecution’s comment on a defendant’s silence, which occurs after arrest and Miranda warnings, is not allowed. American Samoa Gov’t v. Faletogo, 4 A.S.R.3d 190 (Trial Div. 2000).

§ 13 Extradition

§ 13(1) —General Provisions

RESERVED

§ 13(2) —Extradition Proceedings

RESERVED

§ 13(3) —of Witnesses

§ 13(4) —Evidence

The admissibility of evidence in an extradition proceeding is determined by the applicable extradition treaty. American Samoa Gov’t v. Enoka, 5 A.S.R.3d 81 (Trial Div. 2001).

CRIMINAL PROCEDURE

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