Rules of Criminal Procedure – Comment Period Closed August 11, 2017

URCrP 007 Amend. The provisions in existing rule 7 are being divided into separate rules, each dealing with a different subject. Rule 7 will now address initial proceedings for class A misdemeanors and felonies.

URCrP 007A New. The rule addresses procedures for class B & C misdemeanors and infractions. The rule also adds specific provisions on pretrial release conditions.

URCrP 007B New. The rule addresses preliminary hearings. The rule generally reflects existing language.

URCrP 007C New. The rule addresses the procedures for material witnesses. The rule generally follows existing language.

URCrP 009 New. The new rule 9 will establish procedures for warrantless arrests. Of particular interest to practitioners may be the time-frames related to pretrial release decisions and deadlines for filing informations.

URCrP 009A New. The rule creates procedures for arrests pursuant to a warrant and includes specific procedures on pretrial release decisions.

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4 thoughts on “Rules of Criminal Procedure – Comment Period Closed August 11, 2017
  1. Martin V. Gravis

    Proposed Rule 007B does not reflect current law regarding preliminary hearings. Under current law the State cannot refile a case that was dismissed after the magistrate determined that the state had failed to show probable cause unless the state get permission from the court after showing that they have new evidence that was not available at the time of the first hearing.

  2. James Brady

    Proposed Rule 9(2), presents practical problems.

    Rule 9(g)(2) requires an information be filed within four days of arrest. When does the four day count begin? If a person is arrested at 1:00 am Monday, do we not count Monday and make Tuesday the first day of the four? If he is arrested at 11:30 pm Monday night, is Tuesday the first day of the four? Suggestion: Clarification of whether the four day count begins at 12:01 am or at 8:00 am the morning following an arrest would help uniform application in the state.

    Rule (9)(2) requires a person to be released if no information is filed by 5:00 pm on the fourth day. Who will be required to remain at work after 5 pm each day to confirm that the deadline was breached and issue an order to release a defendant after 5:00 pm? Or, will the defendant wait until the next business day to be released? If the defendant waits past 5:00 pm on a Friday, the business next day could be Monday or Tuesday. Suggestion: Would the committee consider making the filing deadline 3:00 pm on the fourth day? This would allow clerks time to open a file, assign the case, file the information and confirm if any defendant is in custody without a timely information being filed the report that information to a judge and allow time for the judge to issue a release before the end of the work day?


    Rule (9)(2)(a)

  3. James Brady

    Rule 7 does not identify a deadline for holding a first appearance on felonies or class A misdemeanors. Rule 9 sets a deadline of 24 hours following arrest for PC and pre-trial release review and sets a four day deadline to file the information. Is the Committee satisfied setting deadlines for PC and pre-trial release review, and for filing an information, but not setting a deadline for conducting a First Appearance hearing? Is this scheduling item intentionally left to be determined by each district, or each judge depending on the resources of their court location?


  4. Will Carlson

    While proposed rule 007C generally follows existing language, prosecutors have discovered that existing language poses serious impracticalities in obtaining a material witness warrant against uncooperative witnesses. Under the rule, after a magistrate is given good cause to believe a material witness will not appear and testify, the magistrate must issue a bond rather than a warrant. A warrant is only an option if the witness (who the magistrate already has good cause to believe will not appear and testify) fails or refuses to post the bond. This process wrongly assumes that uncooperative witnesses will nevertheless keep the parties and court apprised of their location so that they can be served with notice of the bond and determine whether or not they will post the bond after already demonstrating evidence they will not cooperate with the proceeding. For transient and hiding witnesses, this procedural requirement effectively prevents a material witness warrant from ever being issued.

    As an alternative, the rule should be amended to focus on 1- how a magistrate obtains good cause to believe a material witness is uncooperative, and 2- empower the magistrate to issue a material witness warrant when that good cause exists. The following is one possible draft:


    (1) WARRANT. On motion of the prosecuting authority or the defendant, after an Information or an Indictment has been filed with a court, the court may issue a warrant, subject to reasonable bail, for the arrest of a material witness. The warrant shall issue only on a showing, by affidavit or on the record in open court, that the testimony of the witness is material and that
    (a) The witness is refusing or has refused to obey a lawfully issued subpoena; or
    (b) It is or is likely to be impractical to secure the presence of the witness by subpoena.

    (2) HEARING. After the arrest of the witness, the custodial authority shall notify the issuing court before the end of the next business day. The court shall provide a hearing for the witness within 48 hours of arrest or, upon a showing of good cause, within a reasonable period of time after being notified of the arrest. The witness is entitled to be represented by a lawyer. Upon a request by an indigent witness in custody, the court shall appoint a lawyer to represent the witness.

    (3) RELEASE/DETENTION. The witness may be released upon the posting of bail or upon compliance with other conditions set by the court. Prior to release, the court may order the witness to be examined and cross-examined before the court in the presence of the defendant and the testimony shall be recorded. If the witness is unavailable or fails to appear at any subsequent hearing or trial when ordered to do so, the recorded testimony may be used at the hearing or trial in lieu of the personal testimony of the witness.