Tribe: Fort McDowell Yavapai Nation
Rule 17. – Release prior to trial.
(a)In General. At a defendant’s appearance before the Court on an offense, the Court shall determine whether the defendant may be released prior to trial and, if so, under what conditions. A defendant may;1.Be released on his or her own recognizance; or2.Be released upon payment of a cash bond to ensure the defendant’s appearance at future hearings and compliance with all conditions of release imposed; or3.Be ordered to comply with a condition or any combination of conditions under subsection (c) of this Rule.4.Be temporarily detained to permit the revocation of conditional release; or5.Detained pursuant to subsection (e) of this Rule.6.There shall be no third party release in adult criminal matters.(b)Release on Own Recognizance or Appearance Bond. The Court shall order the pretrial release of the defendant on his or her own recognizance, or upon payment of an appearance bond in an amount specified by the court, subject to the condition that the defendant not commit any criminal offenses in any jurisdiction and comply with any and all release conditions imposed during the period of release, unless the Court determines that such release will not reasonably assure the appearance of the defendant or the defendant is not able to comply with the release conditions imposed or such release will endanger the safety of any other person or the community.(c)Release on Conditions. If the Court determines that the release described in subsection (b) of this Rule will not reasonably assure the defendant’s appearance as required or will endanger the safety of any other person or the community, the Court will order the pretrial release of the defendant with the mandatory conditions outlined in subsection (1) below as well as any further conditions, including but not limited to those outlined in subsection (2) below or combination of conditions that the Court determines as reasonably necessary to assure the defendant’s appearance as required and the safety of any other person and the community:1.Mandatory Conditions:a.That the defendant not commit any criminal offenses in any Federal, state, local or tribal jurisdiction during the period of release;b.That the defendant appear for all future proceedings;c.That any failure to appear for future hearings may result in a forfeiture of any bail or bond posted on behalf of or by the defendant; andd.That the defendant keep the Court apprised at all times of the person’s residence and contact information and any change in such information.2.Other Conditions:a.Restrictions on the defendant’s travel, associations or place of abode during the period of release;b.No contact or no negative contact with specified individuals, as may be appropriate;c.Psychological or psychiatric assessment for the sole purpose of determining whether the person is a danger to him or herself or others;d.Maintain employment, or if unemployed, actively seek employment;e.Maintain or commence an educational program;f.avoid all contact with an alleged victim of the crime and with a potential witness who may testify about the offense;g.Report on a regular basis to a designated agency, including law enforcement and/or probation;h.Comply with a specified curfew;i.Refrain from possessing a firearm, destructive device, or other dangerous weapon;j.Refrain from the use of alcohol, or any use of a narcotic drug or other controlled substance, as defined in section 102 of the Controlled Substances Act (21 U.S.C. section 802, et seq.), without a prescription by a licensed medical practitioner;k.Undergo available medical, psychological, or psychiatric treatment, including treatment for drug or alcohol dependency, and remain in the specified institution if required for that purpose;l.Satisfy any other condition that is reasonably necessary to assure the defendant’s appearance as required and to assure the safety of any other person or the community.3.Limitations: The Court may not impose a financial condition that results in the pretrial detention of the defendant.4.Amendment of Conditions: The Court may, at any time with hearing, amend the order to impose additional or different conditions of release.(d)Temporary Detention to Permit Revocation of Conditional Release. If the Court determines that the defendant:1.Is, and was at the time the offense was committed:a.On release pending trial from any Federal, State, local or tribal jurisdiction; orb.On release pending imposition or execution of sentence, appeal of a sentence or conviction or completion of sentence in any Federal, state, local or tribal jurisdiction; orc.Is on probation or parole in any jurisdiction; and2.The defendant may flee or pose a danger to any other person or the community; the Court shall order the defendant detained, for a period of not more than ten (10) days, excluding intermediate Saturdays, Sundays, Tribally recognized or declared holiday or days when the Tribal Council has closed governmental business and direct the Nation to notify the appropriate Court, probation or parole official or appropriate law enforcement official. If the official fails or declines to take such person into custody during that ten (10) day period, the defendant shall be treated in accordance with other provisions of this section.(e)Detention. The Court shall hold a detention hearing to determine whether any condition(s) set forth in this Rule will reasonably assure the defendant’s appearance and the safety of any other person or the community upon motion of the Nation. If the Court finds that no condition or combination of conditions will reasonably assure the defendant’s appearance or that the defendant will not comply with release conditions as required and the safety of any other person and the community, the Court shall order that the defendant be detained pretrial. A rebuttable presumption arises that no condition or combinations thereof will reasonably assure the appearance of the defendant and/or compliance with any conditions of release and/or the safety of any other person or the community if the Court finds one of the following apply:1.The defendant has been convicted of a Federal offense or an offense in a State, local, or tribal jurisdiction that would have been a Federal offense had the circumstances rendered Federal jurisdiction appropriate under the following conditions:a.A crime of violence, or an offense listed in 18 U.S.C. § 2332b(g)(5)(B) for which a maximum term of imprisonment of ten (10) years or more is prescribed;b.A crime for which the maximum sentence is life imprisonment or death;c.A crime for which the maximum term of imprisonment of ten (10) years or more is prescribed in the Controlled Substances Act (21 USC section 801 et seq.), the Controlled Substances Import and Export Act (21 USC section 951 et seq.) or the Maritime Drug Law Enforcement Act (46 USC App. 1901 et seq.);d.Any felony if such person has been convicted of two (2) or more offenses described in subparagraphs (a) through (c) of this paragraph or two (2) or more state, local, or tribal offenses that if Federal jurisdiction had been appropriate would have been an offense described in subsections (a) through (c) above, or a combination of such offenses; ore.Any felony that is not otherwise a crime of violence that involves a minor victim or that involves the possession or use of a firearm or destructive device, or any other dangerous weapon, or involved a failure to register under 18 USC 2250; or2.The offense committed in paragraph (1) of this subsection was committed while the defendant was on release pending trial in any jurisdiction; and3.A period of not more than five (5) years has elapsed since the date of conviction, or the release of the defendant from imprisonment for the offense described in subsection (1) of this paragraph, whichever is later.(f)Detention Hearing. The Court shall hold a hearing to determine whether any condition or combination of conditions will reasonably assure the defendant’s appearance as required and the safety of any other person and the community:1.Upon motion of the Nation in any case that involves and offense as described in subsection (e) above; or2.Upon motion of the Nation or upon the Court’s own motion in a case that involves:a.A serious risk that the defendant will flee; orb.A serious risk that the defendant will obstruct or attempt to obstruct justice, threaten, injure, intimidate, harass or attempt to threaten, injure, intimidate or harass a prospective witness or juror.
The facts the Court uses to support a finding that no condition or combination of conditions will reasonably assure the safety of any other person and the community shall be supported by clear and convincing evidence. The detention hearing shall be held immediately upon the defendant’s first appearance before the Court unless the defendant or the Nation seeks a continuance. Except for good cause, a continuance on defendant’s motion may not exceed five (5) days (not including the intermediate Saturdays, Sundays, Tribally recognized or declared holiday or days when the Tribal Council has closed governmental business) and on motion of the Nation, a continuance may not exceed three (3) days, (not including the intermediate Saturdays, Sundays, Tribally recognized or declared holiday or days when the Tribal Council has closed governmental business). During a continuance, the defendant shall be detained, and the Court, on motion from the Nation or sui sponte, may order that, while in custody, a defendant who appears to be a narcotics addict, receive a medical examination to determine whether such person is an addict. At the hearing, the defendant has the right to be represented by legal counsel. The defendant shall be afforded an opportunity to testify, to present witnesses, to cross-examine witnesses who appear at the hearing and to present information by proffer or otherwise. The rules concerning admissibility of evidence in criminal trials do not apply to the presentation and the consideration of information at the hearing. The defendant may be detained pending completion of the hearing. The hearing may be reopened, before or after a determination by the Court, at any time before trial if the Court finds that information exists that was not known to the movant 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 defendant s required and the safety of any other person and the community.
(g)Factors to be Considered. In determining whether there are conditions of release that will reasonably assure the defendant’s appearance as required and the safety of any other person and the community, the Court will consider the available information regarding the following:1.The nature and circumstance of the offense charged, including whether the offense is a crime of violence, or involves a minor victim or a controlled substance, firearm, explosive or destructive device;2.The weight of the evidence against the defendant;3.The history and characteristics of the defendant, including but not limited to:a.The defendant’s character, physical and mental condition, family ties, employment, financial resources, length of residence in the community, community ties, past conduct, history relating to drug or alcohol abuse, criminal history and record concerning appearance at court proceedings; andb.Whether, at the time of the current offense or arrest, the defendant was on probation, on parole or on other release pending trial, sentencing, appeal, or completion of sentence for an offense in any jurisdiction; and4.The nature and seriousness of the danger to any person or the community that would be posed by the defendant’s release.(h)Contents of Release Order. In a release order, the Court shall:1.Include a written statement that sets forth all the conditions to which the release is subject to, in a manner sufficiently clear and specific to serve as a guide for the defendant’s conduct.2.Advise the defendant of the penalties for violating a condition of release, including penalties for committing an offense while on pretrial release and the immediate issuance of a warrant for the defendant’s arrest.(i)Contents of Detention Order. In any detention order issued, the Court shall:1.Include written findings of fact and a written statement of the reasons for the detention;2.Direct the defendant to be remanded to the custody of the Fort McDowell Yavapai Nation pending the next hearing;3.Direct that the defendant be afforded reasonable opportunity to consult privately with legal counsel;4.Direct that the Fort McDowell Yavapai Nation transport the defendant to the next court hearing.(j)Presumption of Innocence. Nothing in this Rule shall be construed as modifying or limiting the presumption of innocence. […]
Read Full Text of Fort McDowell Yavapai Nation Code Chapter 5, Article III., Rule 17.