FOR THE TRIAL DIVISION OF THE SUPREME COURT
FEDERATED STATES OF MICRONESIA
I. SCOPE, PURPOSE AND CONSTRUCTION
Rule 1. Scope. These rules govern the procedure in all criminal proceedings in the trial division of the Supreme Court of the Federated States of Micronesia; and, whenever specifically provided in one of the rules, at proceedings before state judicial officers.
Comment: These rules in general are based upon the United States federal rules of criminal procedure, with appropriate changes in the names. For ease of reference, the numbers of these rules are the same as their counterparts in the United States federal rules.
Rule 2. Purpose and Construction. These rules are intended to provide for the just determination of criminal proceedings. They shall be construed to secure simplicity in procedure, fairness in administration and elimination of unjustifiable expense and delay.
Annotations: The Rules of Criminal Procedure were designed to avoid technicalities and gamesmanship in criminal pleading. They are to be construed to secure simplicity in procedure. Convictions should not be reversed, nor informations thrown out, because of minor, technical objections which do not prejudice the accused. Laion v. FSM, 1 FSM Intrm.
503, 518 (App. 1984).
II. PRELIMINARY PROCEEDINGS
Rule 3. The Complaint. The complaint is a written statement of the essential facts constituting the offense charged. It shall be made upon oath before a judicial officer or a clerk of this court.
Rule 4. Arrest Warrant or Summons upon Complaint.
(a) Issuance. If it appears from the complaint, or from affidavit(s) filed with the complaint, that there is probable cause to believe that an offense has been committed and that the defendant has committed it, a warrant for the arrest of the defendant shall issue to any officer authorized by law to execute it. Upon the request of the attorney for the government, a summons instead of a warrant shall issue. More than one warrant or summons may issue on the same complaint. If a defendant fails to appear in response to the summons, a warrant shall issue.
(b) Probable Cause. The finding of probable cause may be based upon hearsay evidence in whole or in part.
(1) Warrant. The warrant shall be signed by a judicial officer and shall contain the name of the defendant or, if the name is unknown, any name or description by which the defendant can be identified with reasonable certainty. It shall describe the offense charged in the complaint. It shall command that the defendant be arrested and brought before a judicial officer.
(2) Summons. The summons shall be in the same form as the warrant except that it shall summon the defendant to appear before a judicial officer at a stated time and place.
(d) Execution or Service; and Return.
(1) By Whom. The warrant shall be executed by a police officer or by some other officer authorized by law or, when the judicial officer issuing the warrant has found exceptional circumstances requiring execution of the warrant by some other person, by another person specifically authorized in the warrant. The summons may be served by any person authorized to serve a summons in a civil action.
(2) Territorial Limits. The warrant may be executed or the summons may be served at any place within the jurisdiction of the Federated States of Micronesia.
(3) Manner. The warrant shall be executed by the arrest of the defendant. The warrant need not be in the officer's possession at the time of the arrest, but upon request the officer shall show the warrant to the defendant as soon as possible. If the warrant is not in the officer's possession at the time of the arrest, the officer shall then inform the defendant of the offense charged and of the fact that a warrant has been issued. The summons shall be served upon the defendant by delivering a copy to the defendant personally, or by leaving it at the defendant's dwelling house or usual place of abode or of business with some person of suitable age and discretion then residing or employed there. Reasonable attempts shall also be made to assure that the person served understands the meaning of the summons and what the person served is required to do.
(4) Return. The officer executing a warrant shall make return thereof to the judicial officer before whom the defendant is brought pursuant to Rule 5. At the request of the attorney for the government any unexecuted warrant shall be returned to the judicial officer by whom it was issued, for cancellation by that judicial officer. On or before the return day the person to whom a summons was delivered for service shall make return thereof to the judicial officer before whom the summons is returnable. At the request of the attorney for the government made at any time while the complaint is pending, a warrant returned unexecuted and not canceled or a summons returned unserved or a duplicate thereof may be delivered by the judicial officer to a police officer or other authorized person for execution or service.
Annotations: Without probable cause, no search warrant may be obtained and no unconsented search may be conducted. FSM v. George, 1 FSM Intrm. 449, 461 (Kos. 1984).
Rule 5. Initial Appearance.
(a) Upon Complaint. An officer making an arrest under a warrant issued upon a complaint or any person making an arrest without a warrant shall take the arrested person without unnecessary delay before the nearest available justice of the FSM Supreme Court or, in the event that a justice of the FSM Supreme Court is not reasonably available, before a state judicial officer authorized by the laws of the Federated States of Micronesia. If a person arrested without a warrant is brought before a judicial officer, a complaint shall be filed forthwith which shall comply with the requirements of Rule 4(a) with respect to the showing of probable cause.
(b) Upon Information. After an information has been filed pursuant to Rule 7, a hearing shall be held before the nearest available justice of the FSM Supreme Court or, in the event that a justice of the FSM Supreme Court is not available, before a state judicial officer authorized by the laws of the Federated States of Micronesia.
(c) Notification of Rights. When a person, arrested with or without a warrant or given a summons, appears initially before a judicial officer pursuant to subsections (a) or (b) of this rule, the person may be required to plead, at the discretion of the judicial officer. The judicial officer shall read or summarize to the defendant the complaint or information and any affidavit filed therewith. The judicial officer shall inform the defendant of the defendant's right to retain counsel, or to request the assignment of counsel if the defendant is unable to obtain counsel, and of the general circumstances under which the defendant may secure pretrial release. The judicial officer shall inform the defendant that the defendant is not required to make a statement and that any statement made by the defendant may be used against the defendant. The judicial officer shall allow the defendant reasonable time and opportunity to consult counsel and shall detain or conditionally release the defendant as provided by statute or in these rules.
(d) Initial Appearance Before a State Judicial Officer. If a justice of the FSM Supreme Court is not reasonably available under Rule 5(a), the arrested person shall be brought before a state judicial officer authorized by the laws of the Federated States of Micronesia, and such officer shall inform the person of the rights specified in Rule 5(c) and may authorize the detention or conditional release of the arrested person under the terms provided for in these rules. The state judicial officer shall immediately transmit any written order of release or of confinement and any papers filed concerning the case to the clerk of the FSM Supreme Court within the state. Upon the release of the defendant the state judicial officer shall order the defendant to appear at the next sitting of the FSM Supreme Court in the state.
III. THE INFORMATION
Rule 6. Vacant.
Rule 7. The Information.
(a) Use. Offenses shall be prosecuted by information.
(c) Nature and Contents.
(1) In General. The information shall be a plain, concise and definite written statement of the essential facts constituting the offense charged. It shall be signed by the attorney for the government. It need not contain a formal commencement, a formal conclusion or any other matter not necessary to such statement. Allegations made in one count may be incorporated by reference in another count. It may be alleged in a single count that the means by which the defendant committed the offense are unknown or that he committed it by one or more specified means. The information shall state for each count the citation of the statute, rule, regulation or other provision of law which the defendant is alleged to have violated.
(3) Harmless Error. Error in the citation or description or its omission shall not be ground for dismissal of the information or for reversal of a conviction if the error or omission did not mislead the defendant to the defendant's prejudice.
(d) Surplusage. The court on motion of the defendant may strike surplusage from the information.
(e) Amendment. The court may permit an information to be amended at any time before finding if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced.
(f) Bill of Particulars. The court may direct the filing of a bill of particulars. A motion for a bill of particulars may be made before the initial appearance or within ten days after the initial appearance or at such later time as the court may permit. A bill of particulars may be amended at any time subject to such conditions as justice requires.
Annotations: It is sufficient that an information set forth the offense in the words of the statute itself, when the information sufficiently apprises the defendant of the charges against which he must be prepared to defend and is sufficiently detailed to enable the defendant to plead this case as a bar to future prosecutions for the same offense. Laion v. FSM, 1 FSM Intrm. 503, 516-17 (App. 1984)
Rule 7 does not require the information to specifically plead the general principles of responsibility in the National Criminal Code, such as aiding and abetting, which do not themselves enunciate substantive offenses. Engichy v. FSM, 1 FSM
Intrm. 532, 542 (App. 1984)
Rule 7(c) requires that the government's reliance upon aggregation to bring an alleged crime within the jurisdictional boundaries of the court be plainly disclosed to the defendant in the information. Fred v. FSM, 3 FSM Intrm.
141, 144 (App. 1987).
No person may be convicted of liability for the crimes of another unless the information specifically alleges that the defendant aided and abetted and that said information provides specific acts constituting the means of aiding and abetting so as to afford the defendant adequate notice to prepare his defense. 11 F.S.M.C. 301(4) (1987 Supp.).
Rule 8. Joinder of Offenses and of Defendants.
(a) Joinder of Offenses. Two or more offenses may be charged in the same information in a separate count for each offense if the offenses charged are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.
(b) Joinder of Defendants. Two or more defendants may be charged in the information if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses. Such defendants may be charged in one or more counts together or separately and all of the defendants need not be charged in each count.
Rule 9. Warrant or Summons Upon Information.
(a) Issuance. Upon the request of the attorney for the government the court shall issue a warrant for each defendant named in an information supported by a showing of probable cause under oath as is required by Rule 4(a). Upon the request of the attorney for the government a summons instead of a warrant shall issue. If no request is made, the court may issue either a warrant or a summons in its discretion. More than one warrant or summons may issue for the same defendant. The clerk shall deliver the warrant or summons to the police officer or other person authorized by law to execute or serve it. If a defendant fails to appear in response to the summons, a warrant shall issue.
(1) Warrant. The form of the warrant shall be as provided in Rule 4(c) (1) except that it shall be signed by the clerk, it shall describe the offense charged in the information and it shall command that the defendant be arrested and brought before the court. The amount of bail may be fixed by the court and endorsed on the warrant.
(2) Summons. The summons shall be in the same form as the warrant except that it shall summon the defendant to appear before the court at a stated time and place.
(c) Execution or Service; and Return.
(1) Execution or Service. The warrant shall be executed or the summons served as provided in Rule 4(d)(1), (2), and (3). A summons to a corporation shall be served by delivering a copy to an officer or to a managing or general agent or to any other agent authorized by appointment or by law to receive service of process and, if the agent is one authorized by statute to receive service and the statute so requires, by also mailing a copy to the corporation's last known address within the Federated States of Micronesia or at its principal place of business. The officer executing the warrant shall bring the arrested person promptly before the court.
(2) Return. The officer executing a warrant shall make return thereof to the court. At the request of the attorney for the government any unexecuted warrant shall be returned and canceled. On or before the return day the person to whom a summons was delivered for service shall make return thereof. At the request of the attorney for the government made at any time while the information is pending, a warrant returned unexecuted and not canceled or a summons returned unserved or a duplicate thereof may be delivered by the clerk to the police officer or other authorized person for execution or service.
IV. PREPARATION FOR TRIAL
Rule 10. Vacant.
Rule 11. Pleas.
(a) Alternatives. A defendant may plead not guilty, guilty, or nolo contendere. If a defendant refuses to plead or if a defendant corporation fails to appear, the court shall enter a plea of not guilty.
(b) Nolo Contendere. A defendant may plead nolo contendere only with the consent of the court. Such a plea shall be accepted by the court only after due consideration of the views of the parties and the interest of the public in the effective administration of justice.
(c) Advice to Defendant. Before accepting a plea of guilty or nolo contendere, the court must in open court inform the defendant personally of, and determine that the defendant understands, the following:
(1) the nature of the charge to which the plea is offered, and the maximum possible penalty provided by law; and
(2) that the defendant has the right to be represented by counsel at every stage of the proceeding and, if necessary, one will be appointed; and
(3) that the defendant has the right to plead not guilty or to persist in that plea if it has already been made, and the right to a trial and at that trial has the right to the assistance of counsel, the right to confront and cross-examine witnesses, and the right against compelled self-incrimination; and
(4) that if the defendant pleads guilty or nolo contendere there will not be a further trial of any kind, so that pleading guilty or nolo contendere will be a waiver of the right to a trial; and
(5) that upon a plea of guilty or nolo contendere, the court may ask questions about the offense, and if the defendant answers these questions under oath, on record, and in the presence of counsel, the answers may later be used against the defendant in a prosecution for perjury or false statement.
(d) Insuring That the Plea is Voluntary. The court shall not accept a plea of guilty or nolo contendere without first, by addressing the defendant personally in open court, determining that the plea is voluntary and not the result of force or threats or of promises apart from a plea agreement.
(e) Plea Agreement Procedure.
(1) In General. The prosecutor and counsel for the defendant, or the defendant when acting pro se, may enter into plea agreements that, upon the entering of a plea of guilty or nolo contendere to a charged offense or to an included or related offense, the prosecutor will take certain actions or adopt certain positions, including the dismissal of other charges and the recommending or not opposing of specific sentences or dispositions on the charge to which a plea was entered. The court shall not participate in discussions leading to such plea agreements nor be bound thereby.
(2) Notice of Plea Agreement. Any plea agreement shall be disclosed by the parties to the court at the time the defendant tenders his plea. Failure by the prosecutor to comply with such agreement shall be grounds for withdrawal of the plea.
(3) Notice of Agreement to Victims. The government shall notify any victim(s) of the crime(s) charged of any proposed plea agreement, and obtain the comments of the victim, prior to tendering the agreement to the court. Absent a showing of good cause, the court may reject any proposed plea agreement submitted without compliance with this requirement.
(4) Warning to Defendant. Upon disclosure of any plea agreement, the court shall not accept the tendered plea unless the defendant is informed that that the court is not bound by such agreement.
(5) Determining Accuracy of Plea. Notwithstanding the acceptance of a plea of guilty, the court should not enter a judgment upon such plea without making such inquiry as shall satisfy it that there is factual basis for the plea.
(f) Record of Proceedings. A verbatim record of the proceedings at which the defendant enters a plea shall be made and, if there is a plea of guilty or nolo contendere, the record shall include, without limitation, the court's advice to the defendant, the inquiry into the voluntariness of the plea, and the inquiry into the accuracy of the plea.
Annotations: The plea bargaining process contemplates that plea agreements will be submitted to the trial judge for acceptance or rejection, and the court's judicial comments on the documents cannot customarily be used as a basis for disqualification. FSM v. Skilling, 1 FSM Intrm. 464, 481 (Kos. 1984).
Rule 11(e)(1)(c) calls for implementation of the terms of the plea agreement by the Court if the court accepts the agreement. FSM v. Dores, 1 FSM Intrm.
580, 585 (Pon. 1984).
A defendant who enters into a written plea agreement shall be subject to punishment for violating the terms of the agreement. Id. at 587.
Rule 12. Motions before Trial; Defense and Objections.
(a) Pleadings and Motions. Pleadings in criminal proceedings shall be the information and the pleas of not guilty, guilty and nolo contendere. No other pleas, demurrers or motions to quash shall be allowed, and any defenses and objections raised before trial shall be raised only by motion to dismiss or to grant appropriate relief, as provided in these rules.
(b) Pretrial Motions. Any defense, objection, or request which is capable of determination without the trial of the general issue may be raised before trial by motion. Motions may be written or oral at the discretion of the judge. The following must be raised prior to trial:
(1) Defenses and objections based on defects in the institution of the prosecution; or
(2) Defenses and objections based on defects in the information (other than that it fails to show jurisdiction in the court or to charge an offense which objections shall be noticed by the court at any time during the pendency of the proceedings); or
(3) Motions to suppress evidence; or
(4) Requests for discovery under Rule 16; or
(5) Requests for severance of charges or defendants under Rule 14; or
(6) Requests for appointment of assessor(s) under 4 F.S.M.C. 113.
(c) Motion Date. The court may, at the time of the initial appearance or as soon thereafter as practicable, set a time for the making of pretrial motions or requests and, if required, a later date of hearing.
(d) Notice by the Government of the Intention to Use Evidence.
(1) At the Discretion of the Government. At the initial appearance or as soon thereafter as is practicable, the government may give notice to the defendant of its intention to use specified evidence at trial in order to afford the defendant an opportunity to raise objections to such evidence prior to trial under subdivision (b)(3) of this rule.
(2) At the Request of the Defendant. At the initial appearance or as soon thereafter as is practicable the defendant may, in order to afford an opportunity to move to suppress evidence under subdivision (b)(3) of this rule, request notice of the government's intention to use (in its evidence in chief at trial) any evidence which the defendant may be entitled to discover under Rule 16 subject to any relevant limitations prescribed in Rule 16.
(e) Ruling On Motion. A motion made before trial shall be determined before trial unless the court, for good cause, orders that it be deferred for determination at the trial of the general issue or until after finding, but no such determination shall be deferred if a party's right to appeal is adversely affected. Where factual issues are involved in determining a motion, the court shall state its essential findings on the record.
(f) Effect of Failure to Raise Defenses or Objections. Failure by a party to raise defenses of objections or to make requests which must be made prior to trial, at the time set by the court pursuant to subdivision (c), or prior to any extension thereof made by the court shall constitute waiver thereof, but the court for cause shown may grant relief from the waiver.
(g) Records. A verbatim record shall be made of all proceedings at the hearing, including such findings of fact and conclusions of law as are made orally.
(h) Effect of Determination. If the court grants a motion based on a defect in the institution of the prosecution or in the information, it may also order that the defendant be continued in custody or that bail be continued for a specified time pending the filing of a new information. Nothing in this rule shall be deemed to affect the provisions of any Act of the Congress of the Federated States of Micronesia relating to periods of limitations.
Rule 13. Trial Together of Informations. The court may order two or more informations to be tried together if the offenses, and the defendants if there is more than one, could have been joined in a single information. The procedure shall be the same as if the prosecution were under such single information.
Rule 14. Relief from Prejudicial Joinder. If it appears that a defendant or the government is prejudiced by a joinder of offenses or of defendants in an information or by such joinder for trial together, the court may order an election or separate trials of counts, grant a severance of defendants or provide whatever other relief justice requires. In ruling on a motion by a defendant for severance the court may order the attorney for the government to deliver to the court for inspection in camera any statements or confessions made by the defendants which the government intends to introduce in evidence at the trial.
Rule 15. Depositions.
(a) When Taken. Whenever due to exceptional circumstances of the case it is in the interest of justice that the testimony of a prospective witness of a party be taken and preserved for use at trial, the court may upon motion of such party and notice to the parties order that testimony of such witness be taken by deposition and that any designated book, paper, document, record, recording, or other material not privileged, be produced at the same time and place. If a witness is committed for failure to give bail to appear to testify at a trial or hearing, the court on written motion of the witness and upon notice to the parties may direct that the witness' deposition be taken. After the deposition has been subscribed the court may discharge the witness.
(b) Notice of Taking. The party at whose instance a deposition is to be taken shall give to every party reasonable written notice of the time and place for taking the deposition. The notice shall state the name and address of each person to be examined. On motion of a party upon whom the notice is served, the court for cause shown may extend or shorten the time or change the place for taking the deposition. The officer having custody of a defendant shall be notified of the time and place set for the examination and shall, unless the defendant waives in writing the right to be present, produce the defendant at the examination. A defendant not in custody shall have the right to be present at the examination upon request subject to such terms as may be fixed by the court, but the defendant's failure, absent good cause shown, to appear after notice and tender of expenses in accordance with subdivision (c) of this rule shall constitute a waiver of that right and of any objection to the taking and use of the deposition based upon that right.
(c) Payment of Expenses. Whenever a deposition is taken at the instance of the government, or whenever a deposition is taken at the instance of a defendant who is unable to bear the expenses of the taking of the deposition, the court may direct that the expense of travel and subsistence of the defendant and the defendant's attorney for attendance at the examination and the cost of the transcript of the deposition shall be paid by the government.
(d) How Taken. Subject to such additional conditions as the court shall provide, a deposition shall be taken and filed in the manner provided in civil actions except as otherwise provided in these rules, provided that (1) in no event shall a deposition be taken of a party defendant without that defendant's consent, and (2) the scope and manner of examination and cross-examination shall be such as would be allowed in the trial itself. The government shall make available to the defendant or defendant's counsel for examination and use at the taking of the deposition any statement of the witness being deposed which is in the possession of the government and to which the defendant would be entitled at the trial.
(e) Use. At the trial or upon any hearing, a part or all of a deposition, so far as otherwise admissible under the rules of evidence, may be used as substantive evidence if the witness is unavailable, as unavailability is defined in Rule 804(a) of the FSM Rules of Evidence, or the witness gives testimony at the trial or hearing inconsistent with that witness' deposition.
Any deposition may also be used by any party for the purpose of contradicting or impeaching the testimony of the deponent as a witness. If only a part of a deposition is offered in evidence by a party, an adverse party may require that party to offer all of it which is relevant to the part offered and any party may offer other parts.
(f) Objections to Deposition Testimony. Objections to deposition testimony or evidence or parts thereof and the grounds for the objection shall be stated at the time of the taking of the deposition.
(g) Deposition by Agreement Not Precluded. Nothing in this rule shall preclude the taking of a deposition, orally or upon written questions, or the use of a deposition, by agreement of the parties with the consent of the court.
Annotations: The burden of showing whether "exceptional circumstances" under Rule 15(a) exist is upon the defendant; what must be shown is that the witness would be material and that such testimony would be for the benefit of the moving party or in some other way in the interest of justice. Wolfe v. FSM, 2 FSM Intrm. 115, 122 (App. 1985).
Rule 16. Discovery and Inspection.
(a) Disclosure of Evidence by the Government.
(1) Information Subject to Disclosure.
(A) Statement of Defendant. Upon request of a defendant the government shall permit the defendant to inspect and copy or photograph: any relevant written or recorded statements made by the defendant, or copies thereof, within the possession, custody or control of the government, the existence of which is known, or by the exercise of due diligence may become known, to the attorney for the government; the substance of any oral statement which the government intends to offer in evidence at the trial made by the defendant whether before or after arrest in response to interrogation by any person then known to the defendant to be a government agent.
(B) Defendant's Prior Record. Upon request of the defendant, the government shall furnish to the defendant such copy of his prior criminal record, if any, as is within the possession, custody, or control of the government, the existence of which is known, or by the exercise of due diligence may become known, to the attorney for the government.
(C) Documents and Tangible Objects. Upon request of the defendant the government shall permit the defendant to inspect and copy or photograph books, papers, documents, photographs, tangible objects, buildings or places, or copies or portions thereof, which are within the possession, custody or control of the government, and which are material to the preparation of the defendant's defense, or are intended for use by the government as evidence in chief at the trial, or were obtained from or belong to the defendant.
(D) Report of Examinations and Tests. Upon request of a defendant the government shall permit the defendant to inspect and copy or photograph any results or reports of physical or mental examinations, and of scientific tests or experiments, or copies thereof, which are within the possession, custody, or control of the government, the existence of which is known, or by the exercise of due diligence may become known, to the attorney for the government, and which are material to the preparation of the defense or are intended for use by the government as evidence in chief at the trial.
(E) Prosecution Witnesses. Upon request of a defendant the government shall provide to the defendant the name and address of any person whom the prosecuting attorney intends to call as a witness together with the witness' relevant written or recorded statement, and the record of any felony convictions of such proposed witness.
(F) Material Favorable to Defendant. Upon request of a defendant the government shall provide to the defendant any material or information which tends to negate the guilt of the defendant as to the offense charged or would tend to reduce his punishment therefor.
(2) Information Not Subject to Disclosure. Except as provided in paragraphs (A), (B), and (D) of subdivision (a)(1), this rule does not authorize the discovery or inspection of reports, memoranda, or other internal government documents made by the attorney for the government or other government agents in connection with the investigation or prosecution of the case.
(b) Disclosure of Evidence by the Defendant.
(1) Information Subject to Disclosure.
(A) Documents and Tangible Objects. If the defendant requests disclosure under subdivision (a)(1)(C) or (D) of this rule, upon compliance with such request by the government, the defendant, on request of the government, shall permit the government to inspect and copy or photograph books, papers, documents, photographs, tangible objects, or copies or portions thereof, which are within the possession, custody or control of the defendant and which the defendant intends to introduce as evidence in chief at the trial.
(B) Reports of Examinations and Tests. If the defendant requests disclosure under subdivision (a)(1)(C) or (D) of this rule, upon compliance with such request of the government, the defendant shall permit the government to inspect and copy or photograph any results or reports of physical or mental examinations and of scientific tests or experiments made in connection with the particular case, or copies thereof, within the possession or control of the defendant, which the defendant intends to introduce as evidence in chief at the trial or which were prepared by a witness whom the defendant intends to call at the trial when the results or reports relate to that witness' testimony.
(C) Defenses and Defense Witnesses. The defendant, on request of the government, shall state the nature of any defense which he intends to use at trial and the name and address of any person whom the defendant intends to call in support thereof.
(2) Information Not Subject to Disclosure. Except as to scientific or medical reports, this subdivision does not authorize the discovery or inspection of reports, memoranda, or other internal defense documents made by the defendant, or the defendant's attorneys or agents in connection with the investigation or defense of the case, or of statements made by the defendant, or by government or defense witnesses, to the defendant or agents or attorneys of the defense.
(c) Continuing Duty to Disclose. If, prior to or during trial, a party discovers additional evidence or material previously requested or ordered, which is subject to discovery or inspection under this rule, or discovers additional witnesses or defenses, such party shall promptly notify the other party or that other party's attorney or the court of the existence of the additional evidence, material, witness or defense.
(d) Regulation of Discovery.
(1) Protective and Modifying Orders. Upon a sufficient showing the court may at any time order that the discovery or inspection be denied, restricted, or deferred, or make such other order as is appropriate. Upon motion by a party, the court may permit the party to make such showing, in whole or in part, in the form of a written statement to be inspected by the judge alone. If the court enters an order granting relief following such an ex parte showing, the entire text of the party's statement shall be sealed and preserved in the records of the court to be made available to the appellate court in the event of an appeal.
(2) Failure to Comply With a Request. If any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this rule, the court may order such party to permit the discovery or inspection, grant a continuance, or prohibit the party from introducing evidence not disclosed, or it may enter such other order as it deems just under the circumstances. The court may specify the time, place and manner of making the discovery and inspection and may prescribe such terms and conditions as are just.
Comment: Rule 16(b)(1)(C) requires defendants, upon request, to disclose all defenses and the identity of defense witnesses.
Note that Rule 16 contemplates discovery requests and responses directly by and to the parties; no motion to the court is necessary. Thus, neither discovery requests nor responses under Rule 16 should be filed with the court except to the extent necessary to enable the court to perform its regulatory role under Rule 16(d).
Rule 17. Subpoena.
(a) For Attendance of Witnesses; Form; Issuance. A subpoena shall be issued by the clerk of the court under the seal of the FSM Supreme Court. It shall state the name of the court and the title of the proceeding, and shall command each person to whom it is directed to attend and give testimony at the time and place specified therein. The clerk shall issue a subpoena, signed and with the seal of the FSM Supreme Court, but otherwise in blank to a party requesting it, who shall fill in the blanks before it is served.
(b) Defendants Unable to Pay. The court shall order at any time that a subpoena be issued for service on a named witness upon an ex parte application of a defendant upon a satisfactory showing that the defendant is financially unable to pay the fees of the witness and that the presence of the witness is necessary to an adequate defense. If the court orders the subpoena to be issued the costs incurred by the process and the fees of the witness so subpoenaed shall be paid in the same manner in which similar costs and fees are paid in case of a witness subpoenaed in behalf of the government.
(c) For Production of Documentary Evidence and of Objects. A subpoena may also command the person to whom it is directed to produce the books, papers, documents or other objects designated. The court on motion made promptly may quash or modify the subpoena if compliance would be unreasonable or oppressive. The court may direct that books, papers, documents or objects designated in the subpoena be produced before the court at a time prior to the trial or prior to the time when they are to be offered in evidence and may upon their production permit the books, papers, documents or objects or portions thereof to be inspected by the parties and their attorneys.
(d) Service. A subpoena may be served by a police officer or by any other person who is not a party and who is not less than 18 years of age. Service of a subpoena shall be made by delivering a copy thereof to the person named and, by tendering to him the fee for one day's attendance and the mileage allowed by law. Reasonable attempts shall also be made to assure that the person served understands the meaning of the subpoena and what the person served is required to do. Fees and mileage need not be tendered to the witness upon service of a subpoena issued in behalf of the Federated States of Micronesia, or any governmental officer or agency charged with the responsibility of enforcing the criminal laws of the national government of the Federated States of Micronesia. At or before the time stated for appearance in the subpoena, the person to whom such a subpoena is delivered for service shall write a report of his action on it, sign it and have it delivered to the court named therein. If he has served the subpoena, his report shall show the date, place, and method of service.
(e) Place of Subpoena. A subpoena requiring the attendance of a witness at a hearing or trial may be served at any place within the Federated states of Micronesia.
(f) For Taking Deposition; Place of Examination.
(1) Issuance. An order to take a deposition authorizes the issuance by the clerk of subpoenas for the persons named or described herein.
(2) Place. The witness whose deposition is to be taken may be required by subpoena to attend at any place designated by the court, taking into account the convenience of the witness and the parties.
(g) Contempt. Failure by any person without adequate excuse to obey a subpoena served upon that person may be deemed a contempt of the court.
(h) Information Not Subject To Subpoena. Statements made by witnesses or prospective witnesses may not be subpoenaed from the government or the defendant under this rule, but shall be subject to production only in accordance with the provisions of Rules 16(a)(1)(E) and 26.2.
Comment: This rule requires that a reasonable attempt should be made to supplement the mere writing with additional explanation, because of the multiplicity of languages in Micronesia and the greater likelihood here than in the United States that one served with a subpoena will be unable to read the words of the document.
The references in Rules 17(b) and 17(d) are included in anticipation that payment of witness fees and mileage may be required in the future.
Rule 17.1. Pretrial Conference. At any time after the filing of the information the court upon motion of any party or upon its own motion may order one or more conferences to consider such matters as will promote a fair and expeditious trial. At the conclusion of a conference the court shall prepare and file a memorandum of the matters agreed upon. No admissions made by the defendant or the defendant's attorney at the conference shall be used against the defendant unless the admissions are reduced to writing and signed by the defendant and the defendant's attorney. This rule shall not be invoked in the case of a defendant who is not represented by counsel.
Rule 18. Place of Prosecution and Trial. Except as otherwise permitted by statute or by these rules, the prosecution shall be in the state in which the offense was committed. The court shall fix the place of trial within the state with due regard to the convenience of the defendant and the witnesses and the prompt administration of justice.
Rule 19. Vacant.
Rule 20. Transfer from the State for Plea and Sentence.
(a) Information Pending. A defendant arrested, held, or present in a state other than that in which an information is pending against that defendant may state in writing a wish to plead guilty or nolo contendere, to waive trial in the state in which the information is pending, and to consent to disposition of the case in the state in which he was arrested, held, or present, subject to the approval of the attorneys for the government in each state. Upon receipt of the defendant's statement and of the written approval of the attorneys for the government, the FSM Supreme Court clerk in the state in which the information is pending shall transmit the papers in the proceeding or certified copies thereof to the clerk of this court for the state in which the defendant is arrested, held, or present, and the prosecution shall continue in that state.
(b) Information Not Pending. A defendant arrested, held, or present in a state other than the state in which a complaint against the defendant is pending may state in writing a wish to plead guilty or nolo contendere, to waive trial in the state in which the warrant was issued, and to consent to disposition of the case in the state in which the defendant was arrested, held, or present subject to the approval of the attorneys for the government for each state. Upon receipt of the defendant's statement and of the written approval of the attorneys for the government and upon filing of an information, the clerk of this court in the state in which the warrant was issued shall transmit the papers in the proceeding or certified copies thereof to the clerk of this court for the state in which the defendant was arrested, held, or present, and the prosecution shall continue in that state.
(c) Effect of Not Guilty Plea. If after the proceeding has been transferred pursuant to subdivision (a) or (b) of this rule the defendant pleads not guilty, the clerk shall return the papers to the court in which the prosecution was commenced, and the proceeding shall be restored to the docket of that court. The defendant's statement of a wish to plead guilty or nolo contendere shall not be used against the defendant.
Rule 21. Transfer of Cases for Trial. For the convenience of parties and witnesses, and in the interest of justice, the court upon motion of the defendant may transfer the proceeding to another state. When a transfer is ordered the clerk shall transmit to the FSM Supreme Court clerk in the state to which the proceeding is transferred all papers in the proceedings or duplicates thereof and any bail taken, and the prosecution shall continue in that state.
Rule 22. Time of Motion to Transfer. A motion to transfer under these rules may be made at such time as the court or these rules may prescribe.
Rule 23. Findings By The Court Upon
Trial. The court shall make a general finding and shall in addition, on request made before the general finding, find the facts specially and make necessary conclusions of law. Such findings and conclusions may be oral. If an opinion or memorandum of decision is filed, it will be sufficient if the findings of fact and conclusions of law appear therein.
Annotations: While Rule 23 does not
require specific findings of fact and conclusions of law unless requested by a
party, some explanation by the trial court of the legal reasoning and grounds
for deciding factual issues is highly desirable if not essential, not only
because an explanation may help the defendant and other citizens understand and
accept the decision but also to assist the appellate court in reviewing the
decision. Joker v. FSM, 2 FSM Intrm.
38, 47 (App. 1985).
Although specific findings
are not mandated by Rule
23, it is helpful for the trial court to specifically set out findings,
at least orally at the conclusion of the trial. Alaphonso v. FSM, 1 FSM
Intrm. 209, 225 n.10 (App. 1982).
Rule 24. Vacant.
Rule 25. Justice, Disability After Finding of Guilt.
If by reason of absence, death, sickness or other disability the justice
before whom the defendant has been tried is unable to perform the duties to be
performed by the court after a finding of guilt, any other justice regularly
sitting or assigned may perform those duties; but if such other justice is
satisfied that a justice who did not preside at the trial cannot perform those
duties or that it is appropriate for any other reason, such other justice may
exercise the discretion to grant a new trial.
Rule 26. Taking of Testimony. In all trials the
testimony of witnesses shall be taken orally in open court, unless otherwise
provided by an Act of the Congress of the Federated States of Micronesia or by
any rule adopted by this court.
Rule 26.1. Determination of Foreign Law. A party who
intends to raise an issue concerning the law of a foreign country shall give
reasonable written notice. The court, in determining foreign law, may
consider any relevant material or source, including testimony, whether or not
submitted by a party or admissible under the Rules of Evidence of this court.
The court's determination shall be treated as a ruling on a question of
Rule 26.2. Production of Statements of Witnesses.
(a) Motion for Production. After a witness other than
the defendant has testified on direct examination, the court, on motion of a
party who did not call the witness, shall order the attorney for the government
or the defendant and the defendant's attorney, as the case may be, to produce,
for the examination and use of the moving party, any statement of the witness
then in their possession that relates to the subject matter concerning which the
witness has testified.
(b) Production of Entire Statement. If the entire
contents of the statement relate to the subject matter concerning which the
witness has testified, the court shall order that the statement be delivered to
the moving party.
(c) Production of Excised Statement. If the other
party claims that the statement contains matter that does not relate to the
subject matter concerning which the witness has testified, the court shall order
that it be delivered to the court in camera. Upon inspection, the court
shall excise the portions of the statement that do not relate to the subject
matter concerning which the witness has testified, and shall order that the
statement, with such material excised, be delivered to the moving party.
Any portion of the statement that is withheld from the defendant over the
defendant's objection shall be preserved by the attorney for the government,
and, in the event of a conviction and an appeal by the defendant, shall be made
available to the appellate court for the purpose of determining the correctness
of the decision to excise the portion of the statement.
(d) Recess for Examination of Statement. Upon
delivery of the statement to the moving party, the court, upon application of
that party, may recess proceedings in the trial for the examination of such
statement and for preparation for its use in the trial.
(e) Sanction for Failure to Produce Statement. If the
other party elects not to comply with an order to deliver a statement to the
moving party, the court shall order that the testimony of the witness be
stricken from the record and that the trial proceed, or, if it is the attorney
for the government who elects not to comply, shall declare a mistrial if
required by the interest of justice.
(f) Definition. As used in this rule, a "statement"
of a witness means:
(1) a written statement
made by the witness that is signed or otherwise adopted or approved by that
(2) a substantially
verbatim recital of an oral statement made by the witness that is recorded
contemporaneously with the making of the oral statement and that is contained in
a stenographic, mechanical, electrical, or other recording or a transcription
Rule 27. Proof of Official Record. An official record
or an entry therein or the lack of such a record or entry may be proved in the
same manner as in civil actions.
Rule 28. Interpreters. The court may appoint an
interpreter of its own selection and may fix the reasonable compensation of such
interpreter. Such compensation shall be paid out of funds provided by law
or by the government, as the court may direct.
Rule 29. Motion For Judgment of
(a) Motion Before Parties Rest. The court on motion
of a defendant or of its own motion shall order the entry of judgment of
acquittal of one or more offenses charged in the information after the evidence
of either side is closed if the evidence is insufficient to sustain a conviction
of such offense or offenses. If a defendant's motion for judgment of
acquittal at the close of the evidence offered by the government is not granted,
the defendant may offer evidence without having reserved the
(c) Motion After Finding of Guilt. A motion for
judgment of acquittal may be made or renewed within seven days after the court
makes a finding of guilt or within such further time as the court may fix during
the seven day period. If a finding of guilt is made the court may on such
motion set aside the finding and enter judgment of acquittal. It shall not
be necessary to the making of such a motion that a similar motion has been made
prior to the parties resting.
Annotations: The proper question in a Rule 29 motion is
whether there is such evidence that reasonable persons could find guilt beyond a reasonable doubt; it is not a
requirement that the evidence compel, but only that
it is capable of or sufficient to persuade a finder of fact to reach a verdict
of guilt by the requisite standard. Andohn v. FSM, 1 FSM
Intrm. 433, 442 (App. 1984).
Rule 29.1. Closing Argument. After the closing of
evidence the prosecution shall open the argument. The defense shall be
permitted to reply. The prosecution shall then be permitted to reply in
Rule 30. Vacant.
Comment: See Rule 23 and the accompanying
Rule 31. Finding.
(a) Return. The finding of the judge shall be
returned in open court.
(c) Conviction of Lesser Offense. The defendant may
be found guilty of an offense necessarily included in the offense charged or of
an attempt to commit either the offense charged or an offense necessarily
included therein if the attempt is an offense.
Jurisdiction over a particular crime places in the trial division of the FSM
Supreme Court the necessary authority to find the defendant guilty of any
offense necessarily included in the offense charged. Runmar v.
FSM, 3 FSM Intrm. 308, 316 (App. 1988)
The general rule of
criminal procedure is that jurisdiction over a particular crime places in the
trial division the necessary authority to find the defendant guilty of any
offense necessarily included in the offense charged. Kosrae v.
Tosie, 4 FSM Intrm. 61, 63 (Kos. 1989).
Rule 32. Sentence and Judgment.
(1) Imposing of Sentence. Sentence shall be imposed
without unreasonable delay. Before imposing sentence the court shall
afford counsel an opportunity to speak on behalf of the defendant and shall
address the defendant personally and ask if the defendant wishes to make a
statement in the defendant's own behalf and to present any information in
mitigation of punishment. The attorney for the government shall have an
equivalent opportunity to speak to the court.
(2) Notification of Right to Appeal. After imposing
sentence in a case which has gone to trial on a plea of not guilty, the court
shall advise the defendant of the right to appeal and of the right of a person
who is unable to pay the cost of an appeal to apply for leave to appeal in forma
pauperis. There shall be no duty on the court to advise the defendant of
any right of appeal after sentence is imposed following a plea of guilty or nolo
contendere. If the defendant so requests, the clerk of the court shall
prepare and file forthwith a notice of appeal on behalf of the
(b) Judgment. A judgment of conviction shall set
forth the plea, the findings, and the adjudication and sentence. If the
defendant is found not guilty or for any other reason is entitled to be
discharged, judgment shall be entered accordingly. The judgment shall be
signed by the judge and entered by the clerk.
(c) Presentence Investigation.
(1) When Made. Upon order of the court, the office of
the justice ombudsman shall make a presentence investigation and report to the
court before the imposition of sentence or the granting of
(2) Report. The report of the presentence
investigation shall contain any prior criminal record of the defendant and such
information about the defendant's characteristics, financial condition and
circumstances affecting the defendant's behavior as may be helpful in imposing
sentence or in granting probation or in the correctional treatment of the
defendant, and such other information as may be required by the
At least 72 hours before imposing sentence the court shall upon request
permit the defendant, or counsel if the defendant is represented, to read the
report of the presentence investigation, but not to the extent that in the
opinion of the court the report contains diagnostic opinion which might
seriously disrupt a program of rehabilitation, sources of information obtained
upon a promise of confidentiality, or any other information which, if disclosed,
might result in harm, physical or otherwise, to the defendant or other persons;
and the court shall afford the defendant or the defendant's counsel an
opportunity to comment on the presentence report and, at the discretion of the
court, to introduce testimony or other information relating to any alleged
factual inaccuracy contained in it.
If the court is of the view that there is information in the presentence
report which should not be disclosed under subdivision (c)(3)(A) of this rule,
the court in lieu of making the report or part thereof available shall state
orally or in writing a summary of the factual information contained therein to
be relied on in determining sentence, and shall give the defendant or his
counsel an opportunity to comment thereon. The statement may be made to
the parties in camera.
Any material disclosed to the defendant or the defendant's counsel shall
also be disclosed to the attorney for the government.
If the comments of the defendant and his counsel or testimony or other
information introduced by them allege any factual inaccuracy in the presentence
investigation report or the summary of the report or part thereof, the court
shall, as to each matter controverted, make (i) a finding as to the allegation,
or (ii) a determination that no such finding is necessary because the matter
controverted will not be taken into account in sentencing.
Any copies of the presentence investigation report made available to the
defendant or the defendant's counsel and the attorney for the government shall
be returned to the probation officer immediately following the imposition of
sentence or the granting of probation, unless the court, in its discretion
(d) Withdrawal of Plea of Guilty. A motion to
withdraw a plea of guilty or nolo contendere may be made only before sentence is
imposed or imposition of sentence is suspended; but to correct manifest
injustice the court after sentence may set aside the judgment of conviction and
permit the defendant to withdraw the plea.
Rule 32.1. Revocation of Modification of Probation or Supervised
(a) Revocation of Probation or Supervised
(1) Preliminary Hearing. Whenever a probationer is
held in custody on the ground that the person has violated a condition of
probation or supervised release, the person shall be afforded a prompt hearing
before a judicial officer in order to determine whether there is probable cause
to hold the person for a revocation hearing. The probationer shall be
notice of the preliminary hearing and its purpose and of the alleged
an opportunity to appear at the hearing and to present
upon request, the opportunity to question adverse witnesses unless, for
good cause, the judicial officer decides that justice does not require the
appearance of the witness; and
notice of the right to be represented by counsel.
The proceedings shall be
recorded stenographically or by an electronic recording device. If
probable cause is found to exist, the person shall be held for a revocation
hearing. The person may be released pursuant to Rule 46(c) pending the
revocation hearing. If probable cause is not found to exist, the
proceeding shall be dismissed.
(2) Revocation Hearing. The revocation hearing,
unless waived by the person, shall be held within a reasonable time. The
person shall be given:
written notice of the alleged violation of probation;
disclosure of the evidence supporting the charge;
an opportunity to appear and to present evidence;
the opportunity to question adverse witnesses; and
notice of the right to be represented by counsel.
(b) Modification of Probation. A hearing and
assistance of counsel are required before the terms or conditions of probation
or supervised release can be modified, unless the relief granted is favorable to
the person on probation or supervised release.
(c) Confinement by Justice Ombudsman. Any justice
ombudsman of the Federated States of Micronesia Supreme Court is empowered to
require confinement of any person subject to probation or supervised release, or
other court-imposed restrictions or conditions, upon presentation of such person
to the jailer by the justice ombudsman, and execution of a written statement by
the justice ombudsman that the justice ombudsman:
(1) has determined that
there is no judicial officer immediately available to issue an order for
(2) has probable cause to
believe that the person presented at the jail has violated conditions or terms
of the sentence or order to which the person is subject; and
(3) will file a copy of
his written statement with the clerk's office of the Supreme Court of the
Federated States of Micronesia and will notify a justice of this court as soon
as reasonably possible but in any event within sixty (60) hours of the time of
Upon fulfillment of the
above conditions, the jailer shall accept and retain custody of such person as
instructed in writing by the justice ombudsman up to a maximum of 72 hours, and
then shall release such person in absence of further notice from the
Rule 33. New Trial. The court on motion of a defendant
may grant a new trial to that defendant if required in the interests of justice.
The court on motion of a defendant for a new trial may vacate the judgment
if entered, take additional testimony and direct the entry of a new judgment.
A motion for a new trial based on the ground of newly discovered evidence
may be made only before or within two years after final judgment, but if an
appeal is pending the court may grant the motion only on remand of the case.
A motion for a new trial based on any other grounds shall be made within
seven days after the finding of guilt or within such further time as the court
may fix during the seven day period.
Rule 34. Arrest of Judgment. The court on motion of a
defendant shall arrest judgment if the information does not charge an offense or
if the court was without jurisdiction of the offense charged. The motion
in arrest of judgment shall be made within seven days after the finding of
guilt, or after plea of guilty or nolo contendere, or with such further time as
the court may fix during the seven-day period.
Rule 35. Correction or
Reduction of Sentence.
(a) Correction of Sentence. The court may correct an
illegal sentence at any time and may correct an unreasonable sentence or a
sentence imposed in an illegal manner within the time provided herein for the
reduction of sentence.
(b) Reduction of Sentence. The court may reduce a
sentence within 120 days after the sentence is imposed, or within 120 days after
receipt by the court of a mandate issued upon affirmance of the judgment or
dismissal of the appeal, or within 120 days after entry of any order or judgment
of the FSM Supreme Court denying review of, or having the effect of upholding, a
judgment of conviction. Changing a sentence from a sentence of
incarceration to a grant of probation shall constitute a permissible reduction
of sentence under this subdivision. The court may also reduce a sentence
as provided by statute.
Rule 36. Clerical Mistakes. Clerical mistakes in
judgments, orders or other parts of the record and errors in the record arising
from oversight or omission may be corrected by the court at any time and after
such notice, if any, as the court orders.
Rule 37. Vacant.
Rule 38. Stay of Execution, and Relief Pending
(a) Stay of Execution.
(2) Imprisonment. A sentence of imprisonment shall be
stayed if an appeal is taken and the defendant is released pending disposition
of appeal pursuant to Rule 9(b) of the FSM Rules of Appellate Procedure.
If not stayed, the court may recommend to the Attorney General that the
defendant be retained under conditions, and at a place, which permit the
defendant to assist in the preparation of the appeal.
(3) Fines, Costs and Restitution. A sentence to pay a
fine, restitution or costs, if an appeal is taken, may be stayed by the trial
court or by the Appellate Division upon such terms as the court deems proper.
The court may require the defendant pending appeal to deposit the whole or
any part of the fine, restitution or costs in the registry of the trial court,
or to give bond for the payment thereof, or to submit to an examination of
assets, and it may make any appropriate order to restrain the defendant from
dissipating his assets.
(4) Probation. An order placing the defendant on
probation may be stayed if an appeal is taken. If not stayed, the court
shall specify when the term of probation shall commence. If the order is
stayed the court shall fix the terms of the stay.
Rule 39. Vacant.
IX. SUPPLEMENTARY AND SPECIAL
Rule 40. Commitment to Another District.
(a) Appearance Before Judicial Officer. A person
arrested in a state other than that in which the offense is alleged to have been
committed, shall be taken without unnecessary delay before the nearest available
justice of the Supreme Court or, in the event that a justice of the Supreme
Court is not reasonably available, before a state judicial officer authorized to
act on behalf of the FSM Supreme Court pursuant to the laws of the Federated
States of Micronesia. The initial appearance shall be conducted in
accordance with Rule 5. The person shall be held to answer upon a finding
that such person is the person named in the information or warrant. If the
defendant is held to answer, he shall be held to answer in the state in which
the prosecution is pending, provided that a warrant is issued in that state if
the arrest was made without a warrant, upon production of the warrant or a
certified copy thereof.
(b) Statement by Judicial Officer. In addition to the
statements required by Rule
5, the judicial officer shall inform the defendant of the provisions of
(c) Papers. If a defendant is held or discharged, the
papers in the proceeding and any bail taken shall be transmitted to the clerk of
the court in the state in which the prosecution is pending.
(d) Arrest of Probationer or Supervised Releasee. A
person arrested for a violation of probation or supervised release in a state
other than the state of that person's supervision shall be taken without
unnecessary delay before the nearest available justice of the Supreme Court or,
in the event that a justice of the Supreme Court is not reasonably available,
before a state judicial officer authorized to act on behalf of the FSM Supreme
Court pursuant to the laws of the Federated States of Micronesia. The
judicial officer shall:
(1) proceed if
jurisdiction over the person is transferred to that state;
(2) hold a prompt
preliminary hearing if the alleged violation occurred in that state, and either
(i) hold the person to answer in the state having probation supervision or (ii)
dismiss the proceedings; or
(3) otherwise order the
person held to answer in the state having supervision upon production of
certified copies of the judgment or order of probation or supervised release,
the warrant, and the application for he warrant, and upon a finding that this is
the person named in the warrant.
(e) Arrest for Failure to Appear. If a person is
arrested on a warrant in a state other than that in which the warrant was
issued, and the warrant was issued because of the failure of the person named
therein to appear as required pursuant to a subpoena or the terms of his
release, the person arrested shall be taken without unnecessary delay before the
nearest available justice of the Supreme Court or, in the event that a justice
of the Supreme Court is not reasonably available, before a state judicial
officer authorized to act on behalf of the FSM Supreme Court pursuant to the
laws of the Federated States of Micronesia. Upon production of the warrant
or a certified copy thereof and upon a finding that this is the person named in
the warrant, the judicial officer shall hold the person to answer in the state
in which the warrant was issued.
(f) Release or Detention. If a person was previously
detained or conditionally released in another state where a warrant or
information issued, the judicial officer shall take into account the decision
previously made and the reasons set forth therefor, if any, but will not be
bound by that decision. If the judicial officer amends the release or
detention decision or alters the conditions of release, the judicial officer
shall set forth the reasons therefor in writing.
Rule 41. Search and Seizure.
(a) Authority to Issue Warrant. A search warrant
authorized by this rule may be issued by a judicial officer upon the request of
a police officer or an attorney for the government.
(b) Property or Persons Which May be Seized With a Warrant.
A warrant may be issue under this rule to search for and seize any (1)
property that constitutes evidence of the commission of a criminal offense; or
(2) contraband, the fruits of crime, or things otherwise criminally possessed;
or (3) property designed or intended for use or which is or has been used as the
means of committing a criminal offense; or (4) person for whose arrest there is
probable issue, or who is unlawfully restrained.
(c) Issuance and Contents.
(1) Warrant Upon Affidavit. A warrant shall issue
only on affidavit(s) sworn to before an FSM Supreme Court clerk or a judicial
officer and establishing that grounds for the application exist or that there is
probable cause to believe that they exist. The judicial officer shall
issue a warrant identifying the property or person to be seized and naming or
describing the person or place to be searched. The finding of probable
cause may be based upon hearsay evidence in whole or in part. Before
ruling on a request for a warrant the judicial officer may require the affiant
to appear personally and may examine under oath the affiant and any witnesses
the affiant may produce, provided that such proceeding shall be taken down by a
court reporter or recording equipment and made a part of the record underlying
the application for warrant. The warrant shall be directed to a police
officer. It shall command the police officer to search, within a specified
period of time not to exceed ten days, the person or place named for the
property or person specified. The warrant shall be served in the daytime,
unless the issuing authority, by appropriate provision in the warrant, and for
reasonable cause shown, authorized its execution at times other than daytime.
It shall designate the judicial officer to whom it shall be
(2) Warrant Upon Oral Authorization.
General Rule. At times when no judicial
official is available within a State upon specific written or oral authorization
by a justice of the Supreme Court, this court's clerk of courts or justice
ombudsman in that State may issue a warrant based upon papers filed with the
Federated States of Micronesia Supreme Court and satisfying all other
requirements of this Rule
41, the contents of which are communicated by telephone or by other
appropriate means to the authorizing justice. The following procedures
shall be employed.
Application. The person who is
requesting a warrant shall file with this court in the state where no judicial
officer is then available documents which that person believes satisfy all
requirements of Rule
41, together with documents showing unavailability of a judicial officer
in the state. This court's clerk of court or justice ombudsman in that
state shall then administer the oath for the affidavit(s) submitted to establish
the grounds for the application. Application for the warrant may then be
made by use of either of the following methods:
Telephone. Upon request of the person
asking for the warrant, the clerk of court or justice ombudsman shall promptly
place a call to a justice of the Supreme Court and the documents shall be read
verbatim to the justice. This may be done in the presence of the person
making application, and that person may participate in the telephone
conversation, but the clerk of court or justice ombudsman must remain physically
present throughout the telephone conversation and shall verify the accuracy of
the reading of the documents.
Submission of Documents. A full
duplicate original set of the documents may be forwarded to the justice with
written certification by the clerk of courts or justice ombudsman that the
papers submitted are true and complete copies of the original documents filed
with the court.
Authorization. If the justice is
satisfied that grounds for the application exist or that there is probable cause
to believe that they exist, he shall authorize the clerk of courts or justice
ombudsman to issue a warrant identifying the property or person to be seized,
naming or describing the place to be searched, and indicating the period during
which the warrant will remain in effect. Before signing the warrant, the
clerk of courts or justice ombudsman shall read the warrant to the justice.
If the warrant is satisfactory, the justice may authorize the clerk or the
justice ombudsman to sign it, whereupon the authorized person shall immediately
sign the original warrant, and duplicate copy thereof and enter on the face of
both documents the time when the warrant was ordered to be issued and the name
of the authorizing justice.
Records. Upon issuance of a warrant
pursuant to this rule, one copy of all documents involved shall be retained by
the clerk of courts and duplicate copies of all documents shall immediately be
forwarded to the authorizing justice.
(d) Execution and Returns With Inventory. The police
officer taking property under the warrant shall give to the person from whom or
from whose premises the property was taken a copy of the warrant and a receipt
for the property taken or shall leave the copy and receipt at the place from
which the property was taken. The return shall be made promptly and shall
be accompanied by a written inventory of any property taken. The inventory
shall be made in the presence of the applicant for the warrant and the person
from whose possession or premises the property was taken, if they are present,
or in the presence of at least one credible person other than the applicant for
the warrant or the person from whose possession or premises the property was
taken, and shall be verified by the police officer. The judicial officer
shall upon request deliver a copy of the inventory to the person from whom or
from whose premises the property was taken and to the applicant for the
(e) Motions for Return of Property. A person
aggrieved by an unlawful search and seizure or by the deprivation of property
may move the court for the return of the property on the ground that such person
is entitled to lawful possession of the property. The court shall receive
evidence on any issue of fact necessary to the decision of the motion. If
the motion is granted the property shall be returned to the movant, although
reasonable conditions may be imposed to protect access and use of the property
in subsequent proceedings. If a motion for return of property is made or
comes on for hearing after an information is filed, it shall be treated also as
a motion to suppress under Rule
(f) Motion to Suppress. A motion to suppress evidence
may be made in as provided in Rule
(g) Return of Papers to Clerk. The justice or state
judicial officer before whom the warrant is returned shall attach to the warrant
a copy of the return, inventory and all other papers in connection therewith and
shall file them with the clerk of the FSM Supreme Court in the
(h) Definitions. The term "property" is used in this
rule to include documents, books, papers and any other tangible objects.
The term "daytime" is used in this rule to mean the hours from 6:00 a.m.
to 10:00 p.m. according to local time.
Rule 42. Criminal Contempt.
(a) Summary Disposition. A criminal contempt may be
punished summarily if the justice directly saw or heard the conduct constituting
the contempt and so certifies, provided however, that no punishment of a fine of
more than $100 or imprisonment may be imposed by summary disposition. The
order of contempt shall recite the facts and shall be signed by the judge and
entered of record.
(b) Disposition Upon Notice and Hearing. A criminal
contempt except as provided in subdivision (a) of this rule shall be prosecuted
on notice. The notice shall state the time and place of hearing, allowing
a reasonable time for the preparation of the defense, and shall state the
essential facts constituting the criminal contempt charged, describing it as
such. The notice may be given orally by the judge in open court in the
presence of the defendant or, on application of the government attorney or an
attorney appointed by the court for that purpose, by an order to show cause or
an order of arrest. The defendant is entitled to admission to bail as
provided in these rules. If the contempt charged involves disrespect to or
criticism of a judge, that judge is disqualified from presiding at the trial or
hearing except with the defendant's consent or except as required by the rule of
necessity. Upon a finding of guilt the court shall enter an order fixing
Comment: Compare with
the National Judiciary Act, 4 F.S.M.C. 119.
Rule 43. Presence.
(a) Presence of Defendant Required. The defendant
shall be present at the initial appearance, at the time of the plea, if any, at
every stage of the trial including the finding of the court, and at the
imposition of sentence, except as otherwise provided by this
(b) Continued Presence of Defendant Not Required. The
further progress of the trial to and including the finding of the court shall
not be prevented and the defendant shall be considered to have waived the right
to be present whenever a defendant voluntarily absent has been informed by the
court of the obligation to remain during the trial.
(c) Presence of Defendant Not Required. A defendant
need not be present in the following situations:
(1) A corporation may
appear by counsel for all purposes.
(2) In prosecutions for
offenses punishable by fine or by the imprisonment for not more than one year or
both, the court, with the written consent of the defendant, may permit initial
appearance, plea, trial and the imposition of sentence in the defendant's
(3) At a conference or
argument upon a question of law.
(4) At a reduction of
sentence under Rule 35.
(d) Presence of Parents, Guardians or Supervisors. In
any case where the defendant is 22 years of age or younger, counsel for the
defense is responsible for identifying the parents or other person(s) with
primary supervisory responsibility for that accused, and assuring the presence
of such person(s) at all hearings in the case. At the discretion of the
trial court, any hearing after the initial appearance may be postponed for
noncompliance with this requirement, and other sanctions may be
(e) Presence of Victims. The government shall be
responsible for notifying any victim(s) of crimes charged of the hearing dates
and that the victim should feel free to attend all proceedings. At the
discretion of the trial court, hearings may be postponed in those instances
where the victim has not been so notified in advance.
Rule 44. Right to and Assignment of Counsel.
(a) Right to Assigned Counsel. Every defendant who is
unable to obtain counsel shall be entitled to have counsel assigned at every
stage of the proceedings from his initial appearance through appeal, unless the
defendant waives such appointment.
(c) Joint Representation. Whenever two or more
defendants have been jointly charged pursuant to Rule 8(b), or have been joined for trial pursuant
to Rule 13, and are represented by the same retained or assigned counsel or by
retained or assigned counsel who are associated in the practice of law, the
court shall promptly inquire with respect to such joint representation.
Unless it appears that there is good cause to believe no conflict of
interest is likely to arise, the court shall take such measures as may be
appropriate to protect each defendant's right to counsel.
Rule 45. Time.
(a) Computation. In computing any period of time the
day of the act or event from which the designated period of time begins to run
shall not be included. The last day of the period so computed shall be
included, unless it is a Saturday, a Sunday, or a legal holiday, in which event
the period runs until the end of the next day which is not a Saturday, a Sunday,
or a legal holiday. When a period of time prescribed or allowed is less
than eleven days, intermediate Saturdays, Sundays and legal holidays shall be
excluded in the computation. As used in these rules, "legal holiday"
includes New Year's Day, Federated States of Micronesia Constitution Day (May
10), Independence Day (November 3), Christmas Day, and any other day appointed
as a holiday by the President or the Congress of the Federated States of
(b) Enlargement. When an act is required or allowed
to be done at or within a specified time, the court for cause shown may at any
time in its discretion (1) with or without motion or notice, order the period
enlarged if request therefore is made before the expiration of the period
originally prescribed or as extended by a previous order or (2) upon motion made
after the expiration of the specified period permit the act to be done if the
failure to act was the result of excusable neglect; but the court may not extend
the time for taking any action under Rules 29, 33, 34, and 35, except to the extent and under the conditions
stated in them.
(d) For Motions. A written motion, other than one
which may be heard ex parte, and notice of the hearing thereof shall be served,
with a memorandum of points and authorities, not later than 14 days before the
time specified for the hearing unless a different period is fixed by order of
the court. For cause shown such an order may be made on ex parte
application. When a motion is supported by affidavit, the affidavit shall
be served with the motion.
Unless the court otherwise
directs, the party opposing the motion shall not later than ten days after the
service of the motion upon such party, file and serve responsive papers.
When a motion is opposed by affidavit, the affidavit shall be served with
the responsive papers. The responsive papers shall consist of either (1) a
memorandum of points and authorities, or (2) a written statement of
non-opposition to the motion.
Failure by the moving party
to file the memorandum of points and authorities shall be deemed a waiver by the
moving party of the motion; such failure by the opposing party shall constitute
a consent to the granting of the motion.
(e) Additional Time After Service by Mail. Whenever a
party has the right or is required to do an act within a prescribed period after
the service of a notice or other paper upon such party and the notice or other
paper is served upon that party by mail, six days shall be added to the
Rule 46. Release from Custody.
(a) Release Prior to Trial.
(1) Any person charged
with an offense shall, at the initial appearance before a judicial officer be
ordered released pending trial on his personal recognizance or upon the
execution of an unsecured appearance bond in an amount specified by the judicial
officer, unless the officer determines, in the exercise of discretion, that such
a release will not reasonably assure the appearance of the person as required,
or the protection of the victim or the community from danger of physical
violence posed by the defendant. When such a determination is made, the
judicial officer shall, either in lieu of or in addition to the above methods of
release, impose the first of the following conditions which will reasonably
assure the appearance of the person for trial and the safety of the victim and
the community or, if no single condition gives that assurance, any combination
of the following conditions:
place the person in the custody of a designated person or organization
agreeing to supervise the person;
place restrictions on the travel, association, or place of abode of the
person during the period of release;
require the execution of a bond or the deposit of cash bail in a specified
amount, in the registry of the court, with any such deposit of cash to be
returned upon the performance of the conditions of release;
impose any other condition deemed reasonably necessary to assure
appearance as required, including a condition requiring that the person return
to custody after specified hours; or
after a hearing on the matter, order detention of the person.
The hearing shall be held at the initial appearance unless that person, or
the attorney for the government, seeks a continuance. Except for good
cause, a continuance may not exceed three days. During a continuance, the
person shall be detained. At the hearing, the person shall be afforded an
opportunity to testify, to present witnesses and cross-examine witnesses who
appear, and to present any other information. The facts the judicial
officer uses to support a finding that no condition or combination of conditions
short of detention will reasonably assure the safety of any other person or the
community, or the presence of the defendant at further proceedings, shall be
supported by clear and convincing evidence. The hearing may be reopened
after a determination by the judicial officer, if the judicial officer finds
that information exists that was not known at the time of the hearing and that
has a material bearing on the issue whether there are conditions of release that
will reasonably assure the appearance of the person as required and the safety
of any other person and the community.
(2) In determining which
conditions of release will reasonably assure appearance and safety, the judicial
officer shall, on the basis of available information, take into account the
nature and circumstances of the offense charged, the weight of the evidence
against the accused, the accused's family ties, employment, financial resources,
character and mental condition, the length of residence in the community and
record of convictions, and the accused's record of appearance at court
proceedings or of flight to avoid prosecution or failure to appear at court
(3) A judicial officer
authorizing the release of a person under this section shall issue an
appropriate order containing a statement of the conditions imposed, if any,
shall inform such person of the penalties applicable to violations of the
conditions of release and shall advise that a warrant for the person's arrest
will be issued immediately upon any such violation.
(4) A person for whom
conditions of release are imposed and who after twenty-four hours from the time
of the release hearing continues to be detained as a result of an inability to
meet the conditions of release, shall, upon application, be entitled to have the
conditions reviewed by the judicial officer who imposed them. Unless the
conditions of release are amended and the person is thereupon released, the
judicial officer shall set forth in writing the reasons for requiring the
conditions imposed. A person who is ordered released on a condition which
requires return to custody after specified hours shall, upon application, be
entitled to a review by the judicial officer who imposed the condition.
Unless the requirement is removed and the person is thereupon released on
another condition, the judicial officer shall set forth in writing the reasons
for continuing the requirement. In the event that the judicial officer who
imposed conditions of release is not available, any other judicial officer may
review such conditions.
(5) A judicial officer
ordering the release of a person on any condition specified in this section may
at any time amend the order to impose additional or different conditions of
release provided that, if the imposition of such additional or different
conditions results in the detention of the person as a result of an inability to
meet such conditions or in the release of the person on a condition requiring
return to custody after specified hours, the provisions of subsection (4) shall
(6) Information stated in,
or offered in connection with, any order entered pursuant to this section need
not conform to the rules pertaining to the admissibility of evidence in a court
(7) If it appears by
affidavit that the testimony of a person is material in any criminal proceeding,
and if it is shown that it may become impracticable to secure that person's
presence by subpoena, a judicial officer shall impose conditions of release
pursuant to Rule 46(a)(1) through
(6) above. No material witness shall be detained because of inability to
comply with any condition of release if the testimony of such witness can
adequately be secured by deposition, and if further detention is not necessary
to prevent a failure of justice. Release may be delayed for a reasonable
period of time until the deposition of the witness can be taken pursuant to Rule
(b) Release During Trial. A person released before
trial shall continue on release during trial under the same terms and conditions
as were previously imposed unless the court determines that other terms and
conditions or termination of release are necessary to assure that person's
presence during the trial or to prevent conduct that would obstruct the orderly
and expeditious progress of the trial.
(c) Pending Sentence and Notice of Appeal. A person
who has been convicted of an offense and is either awaiting sentence or has
filed an appeal shall be treated in accordance with the provisions of Rule 46(a)(1) through
(6) above unless the court or judge has reason to believe that no one or more
conditions of release will reasonably assure that the person will not flee or
pose a danger to any other person or to the community. If such a risk of
flight or danger is believed to exist, or if it appears that an appeal is
frivolous or taken for delay, the person may be ordered
(d) Justification of Sureties. Every surety, except a
corporate surety which is approved as provided by law, shall justify by
affidavit and may be required to describe in the affidavit the property by which
that surety proposes to justify and the encumbrances thereon, the number and
amount of other bonds and undertakings for bail entered into and remaining
undischarged, and all the surety's other liabilities. No bond shall be
approved unless the surety thereon appears to be qualified.
(1) Declaration. If there is a breach of condition of
a bond, the court shall declare a forfeiture of the bail.
(2) Setting Aside. The court may direct that a
forfeiture be set aside, upon such conditions as the court may impose, if it
appears that justice does not require the enforcement of the
(3) Enforcement. When a forfeiture has not been set
aside, the court shall on motion enter a judgment of a default and execution may
issue thereon. By entering into a bond the obligors submit to the
jurisdiction of the court and irrevocably appoint the clerk of the court as
their agent upon whom any papers affecting their liability may be served.
Their liability may be enforced on motion without the necessity of an
independent action. The motion and such notice of the motion as the court
prescribes may be served on the clerk of the court, who shall forthwith mail
copies to the obligors to their last known addresses, or if no specific address
is known to general delivery at the post office in the state where the obligor
is known to reside.
(4) Remission. After entry of such judgment, the
court may remit it in whole or in part under the conditions applying to the
setting aside of forfeiture in paragraph (2) of this
(f) Exoneration. When the condition of the bond has
been satisfied or the forfeiture thereof has been set aside or remitted, the
court shall exonerate the obligors and release any bail. A surety may be
exonerated by a deposit of cash in the amount of the bond or by a timely
surrender of the defendant into custody.
(g) Supervision of Detention Pending Trial. The court
shall exercise supervision over the detention of defendants and witnesses
pending trial for the purpose of eliminating all unnecessary
Annotations: The object of Rule 46(a)(2) is to
assure the presence of the defendant at trial so that justice may be done while
keeping in mind the presumption of innocence and permitting the defendant the
maximum amount of pre-trial freedom. The court should attempt to weigh the
various forces likely to motivate a defendant to stay and face trial, against
those forces likely to impel him to leave. FSM v. Jonas, 1 FSM
Intrm. 231a, 233 (Pon. 1982).
Rule 46(a)(1) requires
that, in determining the possibility of release prior to trial, the court should
release the defendant on the defendant's own recognizance unless the court
determines that such a release will not reasonably assure the presence of the
defendant at future proceedings. Id. at
Rule 47. Motions. An application to the court for an
order shall be by motion. A motion other than one made during a trial or
hearing shall be in writing unless the court permits it to be made orally.
It shall state the grounds upon which it is made and shall set forth the
relief or order sought. It may be supported by affidavit. The
requirements of time and for the submission of memoranda of points and
authorities are found in Rule
Rule 48. Dismissal.
(a) By Attorney for Government. The attorney for the
government may by leave of court file a dismissal of an information or complaint
and the prosecution shall thereupon terminate. Such a dismissal may be
filed during the trial without the consent of the defendant.
(b) By Court. If there is unnecessary delay in filing
an information against a defendant who has been held to answer, or if there is
unnecessary delay in bringing a defendant to trial, the court may dismiss the
information or complaint.
Annotations: While the prosecution has broad
discretion in determining whether to initiate litigation, once that litigation
is instituted in court, the court also has responsibility for assuring that
actions thereafter taken are in the public interest; therefore criminal
litigation can be dismissed only by obtaining leave of the court. FSM v.
Ocean Pearl, 3 FSM Intrm. 87, 91 (Pon.1987).
Rule 49. Service and Filing of Papers.
(a) Service: When Required. Written motions
other than those which are heard ex parte, written notices, designations of
record on appeal and similar papers shall be served upon each of the
(b) Service: How Made. Whenever under these
rules or by an order of the court service is required or permitted to be made
upon a party represented by an attorney, the service shall be made upon the
attorney unless service upon the party personally is ordered by the court.
Service upon the attorney or upon a party shall be made in the manner
provided in civil actions.
(c) Notice of Orders. Immediately upon the entry of
an order made on a written motion subsequent to the initial appearance the clerk
shall mail a notice thereof to each party, or shall have each party served with
a notice. The clerk shall note in the docket the provision and method of
(d) Filing. Papers required to be served shall be
filed with the court. Papers shall be filed in the manner provided in
civil actions. Unless otherwise ordered by the court, parties must file
with the court an original and one copy of all documents filed with the court
pursuant to these rules.
Rule 50. Vacant.
Rule 51. Exceptions Unnecessary. Exceptions to rulings
or orders of the court are unnecessary. It is sufficient that a party, at
the time the ruling or order of the court is made or sought, makes known to the
court the action which the party desires the court to take or the objection to
the action of the court and the grounds therefor; but if a party has no
opportunity to object to a ruling or order, the absence of an objection does not
thereafter prejudice that party.
Rule 52. Harmless Error and Plain Error.
(a) Harmless Error. Any error, defect, irregularity
or variance which does not affect substantial rights shall be
(b) Plain Error. Plain errors or defects affecting
substantial rights may be noticed although they were not brought to the
attention of the court.
Rule 53. Vacant.
Rule 54. Application and
(c) Application of Terms. As used in these rules the
following terms have the designated meanings.
"Attorney for the
government" means the Attorney General of the Federated States of Micronesia,
the chief law officer of a state of the Federated States of Micronesia created
by constitution, or a person designated by either of them.
"Justice of the Supreme
Court" means the Chief Justice of the Supreme Court, an associate justice of the
Supreme Court, or a judge or justice serving under special assignment given by
the Chief Justice of the Supreme Court pursuant to Article XI, Section 9(b) of the Constitution of the
Federated States of Micronesia, but only for the particular case or period of
time for which the assignment has been made.
"State judicial officer"
means a judge or justice of any court of record of a state of the Federated
States of Micronesia.
"Judicial Officer" means a
justice of the Supreme Court or a state judicial officer according to the
designated meanings of those terms given herein.
"Attorney" means any person
certified to appear before this court, as an attorney or as a trial counselor,
whether the certification is a general one, or only for a particular
Rule 55. Records. The clerk and assistant clerks of
the Supreme Court shall keep such records in criminal proceedings as the Chief
Justice shall prescribe. Among the records required to be kept by the
clerk shall be a book known as the "criminal docket" in which, among other
things, shall be entered each order or judgment of the court. The entry of
an order or judgment shall show the date the entry is made.
Rule 56. Courts and Clerks. The court shall be deemed
always open for the purpose of filing any proper paper, of issuing and returning
process and of making motions and orders. The clerk's office with the
clerk or an assistant in attendance shall be open during business hours on all
days except Saturdays, Sundays and legal holidays.
Rule 57. Rules of Court.
(b) Procedure Not Otherwise Specified. If no
procedure is specifically prescribed by rule, the court may proceed in any
lawful manner not inconsistent with these rules or with any applicable
Rule 58. Vacant.
Comment: This court does not anticipate
issuing an appendix of forms, but practitioners may wish to refer to the United
States federal rules appendix of forms for guidance.
Rule 59. Effective Date. The Rules of Criminal
Procedure originally took effect on July 11, 1981. They govern all
criminal proceedings thereafter commenced. This edition of the rules
includes all amendments adopted before April 25, 1990. For subsequent
amendments, refer to the General Court Orders of the FSM Supreme Court. As
far as just and practicable any amendments to these rules shall govern all
proceedings pending when the amendments are adopted.
Rule 60. Title. These rules may
be known and cited as the Rules of Criminal Procedure for the Trial Division of
the Supreme Court of the Federated States of Micronesia. The proper form
of citation shall be "FSM Crim. R. ___."