Title 6(B)

Title 6(B). THE JUDICIARY -- CRIMINAL

Part IV. Criminal Proceedings

Chapter 41. Procedure

Section 6.4101. Process obligatory upon Police.

(1) Process in a criminal proceeding, contempt proceeding, or in juvenile delinquency proceeding, issued pursuant to law or rule, is obligatory upon a police officer having knowledge thereof. A police officer who receives process promptly makes a diligent effort to execute or serve it either personally or through another police officer.

(2) This section applies to a show cause order in contempt, an order of attachment of a person, a summons, an order issued in a civil contempt proceeding or juvenile delinquency proceeding, and to process in a criminal proceeding.

Section 6.4102. Dismissal. The Attorney General may by leave of Court file a dismissal of an information, complaint or citation to terminate a prosecution. Filing of a dismissal may not occur during trial without the accused's consent. If there is unnecessary delay in bringing an accused to trial, the Court may dismiss an information, complaint, or citation.

Section 6.4103. Security to keep the peace.

(1) Upon filing of a complaint that a person has threatened or is likely to commit an offense against the person or property of another the Court examines under oath the complainant and witnesses, and has the complaint put in writing for signature under oath by the complainant.

(2) If the Court reasonably believes that an offense may occur, the Court issues a warrant to a police officer, stating the substance of the complaint and directing the officer to apprehend the accused and bring him before the Court at a certain time.

(3) If the accused denies the complaint, the Court examines the complainant under oath. If it appears that there is no reasonable ground to fear the commission of an offense, the Court discharges the accused. If the Court determines that the prosecution was malicious and without proper cause, it may enter judgment against the complainant for the costs of the prosecution.

(4) If the Court finds there is good cause to fear the commission of an offense, it may require the accused to enter into an undertaking in a sum the Court finds reasonable, to keep the peace toward the Government and the complainant. The accused deposits the sum in cash with the Court or with Court approval gives bond in the same amount with sufficient surety. If the accused does not affect the undertaking, the Court may find the accused in contempt.

(5) An undertaking to keep the peace is valid and binding for six months, subject to extension upon renewal of the complaint. If the accused effects the undertaking, the Court discharges him. If the accused does not effect the undertaking, the Court may find the accused in contempt of Court.

(6) If the Court finds after hearing that the defendant has violated an undertaking to keep the peace, the Court may direct a forfeiture of the whole or part of the deposit or bond, enforcing the forfeiture as in a forfeiture of bail. If the accused fulfills an undertaking to keep the peace, the Court returns his deposit or releases his bond.

Section 6.4104. Motor vehicle offense. By rule the Court may provide:

(1) a procedure for pre-trial payment of a fine in lieu of trial for an offense provided in Chapter 7 of Title 13; and

(2) a schedule of fines.

Chapter 42. Arrest Warrant

Section 6.4201. Issuance of warrant. Only a justice of the Court issues a warrant of arrest.

Section 6.4202. Citation. When a police officer may lawfully arrest a person without a warrant he may serve a citation upon the person in lieu of arrest, if he determines that the public interest does not require an arrest.

Section 6.4203. Complaint following arrest without warrant. When a person arrested without a warrant comes before the Court and a complaint has not yet issued, the Court orders that a complaint issue forthwith.

Section 6.4204. Effect of irregularity. The appellate court does not invalidate or set aside a Court proceeding, finding, order, or sentence because of an error or omission, technical or otherwise, in an arrest warrant, unless it finds that the error or omission has prejudiced an accused.

Section 6.4205. Warrant or penal summons upon complaint.

(1) A person seeking the issuance of an arrest warrant personally appears and makes a complaint before the Court.

(2) If the complaint states the essential facts constituting an offense by a person named or described therein, and if the Court finds probable cause to believe commission of the offense complained of by the person named or described, the Court may issue a warrant for arrest of the person, or a penal summons.

(3) If the Court is doubtful that a complaint states sufficient grounds for the issuance of an arrest warrant or penal summons, and if the complainant consents, it may refer the complaint to the Office of the Attorney General for investigation and report, withholding action for a reasonable time pending report by the Office of the Attorney General. If the complainant does not consent to a referral, or, if following referral the Court does not receive the report within a reasonable time, the Court examines under oath the complainant, witnesses offered by the complainant and other witnesses summoned by the Court, giving the accused the opportunity to be present and defend. If the Court is satisfied from a report by the Office of the Attorney General that there is probable cause to believe commission of the complained offense by the accused, it issues an arrest warrant or penal summons.

Section 6.4206. Use of penal summons.

(1) For a misdemeanor the Court issues a penal summons to appear before the Court at a time and place stated in the penal summons, unless the Court finds that the public interest requires the accused's arrest.

(2) Upon request of a complainant the Court may issue a penal summons.

(3) If following service of a penal summons an accused fails to appear in response to the penal summons for cause found inadequate by the Court, the Court issues an arrest warrant.

Section 6.4207. Execution of warrant; service of penal summons. A police officer or person authorized in a warrant or penal summons executes the warrant or serves the summons within the State. Service of a penal summons is upon the accused by delivering a copy to him personally and explaining its substance to him in a language he understands or by leaving it at the accused's dwelling house or usual place of employment or business with a person of suitable age and discretion then residing or employed therein and explaining its substance to him.

Section 6.4208. Return of service.

(1) A person who has executed a warrant writes on the warrant his signed statement of arrest, showing the date and place of arrest, and delivers the warrant to the Court.

(2) At or before the time stated in a penal summons for appearance of an accused the person who receives the summons for service writes on the summons a signed statement of his actions and delivers the summons to the Court. If he has served the summons, the report states the date, place, and method of service.

Section 6.4209. Issuance of arrest warrant or penal summons on information. The Attorney General or person designated in writing by him may file in the Court signed application for the issuance of an arrest warrant or penal summons. If the information states the essential facts constituting an offense by a person named or described in the information with a supporting written sworn statement, showing to the Court's satisfaction that there is probable cause to believe the commission of the offense by the person named or described, the Court, upon request of the Attorney General, issues a warrant or summons as provided in Section 6.4205 (2).

Chapter 43. Search Warrant

Section 6.4301. Definition. In this chapter the term "property" includes a document, book, paper, or tangible object.

Section 6.4302. Issuance of warrant. Only a justice of the Court issues a search warrant.

Section 6.4303. Property subject to warrant. A search warrant may apply only to the following:

(1) property, of which the law prohibits possession;

(2) property stolen or taken under false pretenses or embezzled, or found and fraudulently appropriated;

(3) a forged instrument or counterfeit coin intended for passing or an instrument or material for making them;

(4) arms or munitions prepared for insurrection or riot;

(5) property needed as evidence or otherwise in the trial of an accused; or

(6) property designed, or intended for use, in the commission of an offense.

Section 6.4304. Procedure. A person who seeks issuance of a search warrant personally appears before the Court and makes application setting forth the grounds for issuance. The Court may receive a supporting statement under oath. The application and statement may be either written or oral. If the Court finds practicable, it places an oral application in writing for signature and oath by the person making it. If the Court is satisfied that grounds for the application exist or that there is probable cause to find that they exist, it issues a search warrant identifying the property and naming or describing the person or place for search.

Section 6.4305. Time of execution and return. A search warrant orders a police officer to search the person or place named for the stated property. A warrant orders service in the daytime, except that, if an application for warrant or a statement under oath in support of the application state with certainty that the property is on the person or in the place for search, the warrant may direct execution at any time. A warrant designates that the Court will receive return of the warrant. It designates the period for execution and return of the warrant which does not exceed ten days.

Section 6.4306. Execution and return of warrant.

(1) The person seizing property pursuant to a search warrant gives to the person from whom or from whose premises he seized the property a copy of the warrant and a receipt for the seized property or leaves the copy and receipt at the place from which he seized the property.

(2) Promptly following completion of the search, the person executing a search warrant writes on the warrant a signed statement of action taken pursuant to the warrant, showing the date of the search, the person or place searched, and the person to whom he gave a copy of the warrant and a receipt for the property taken or the place where he left the copy and receipt. He delivers to the Court the warrant, with a written inventory of property taken, and the property seized.

(3) The seizing person writes the inventory in the presence of the applicant for the warrant and the person from whose possession or premises he seized the property, 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 he seized the property following the seizing person's signed sworn statement that the inventory is a true account of all property seized by him pursuant to the warrant. Upon return of a search warrant and a request the Court provides a copy of an inventory to the person from whom or from whose premises the executing person seized the property and to the applicant for the warrant.

Section 6.4307. Hearing following return of search warrant. If a person contests the grounds on which a warrant has issued, upon return of the warrant the Court hears testimony, reducing the testimony of each witness to writing for the witness' signature. If the Court finds that the seized property is not the property described in the warrant or that probable cause does not exist for the grounds upon which the Court issued the warrant, the Court orders restoration of the property to the person from whom the executing party seized it. If it appears to the Court that the seized property is the property described in the warrant and that probable cause exists for the grounds upon which it issued the warrant, the Court orders retention or disposal of the property by the Government pursuant to law.

Section 6.4308. [Filing] of search warrant and accompanying papers. Upon return of a warrant the Court retains together the warrant, the inventory, relevant documents, and an order made for disposition of the seized property.

Section 6.4309. Entrance for execution of warrant. If a search warrant designates a building or ship as a place for search, the person executing the warrant may enter without demanding permission if he finds the building or ship open. If he finds the building or ship closed, he first demands entrance in a loud voice and states that he wants to execute a search warrant. If an occupant does not immediately open the door, gate, or bar to entrance, the executing person may force an entrance, by breaking if necessary. Upon entering he may demand that an occupant open for inspection a part of the building or ship, a closet, or closed space within the area designated in the warrant in which he has reason to suspect concealment of the property. If refused, he may gain access by breaking. A demand or statement of a person executing a search warrant is in a language known to an occupant.

Section 6.4310. Motion for return of property and suppression of evidence. A person aggrieved by an unlawful search or seizure may move for return of the property and suppression of the use of seized property as evidence. A motion to suppress occurs before trial or hearing unless opportunity did not exist before trial or hearing or the accused was not aware of the ground for the motion, or the Court entertains the motion at the trial or hearing. Upon the making of a motion the Court reviews an order made upon the return of the warrant and receives evidence on an issue of fact. If the Court grants the motion, it orders the return of the seized property to the owner, unless it is subject to lawful detention, and orders that the property is not admissible in evidence.

Section 6.4311. Sale of perishable property. The Court may order the sale of perishable seized property and disposition of the proceeds pursuant to law or rule.

Section 6.4312. Effect of irregularity. The appellate court does not invalidate or set aside a court proceeding, finding, order, or sentence for an error or omission, technical or otherwise, in a search warrant proceeding, unless it finds that the error or omission has prejudiced the accused.

Chapter 44. Accused's Rights

Section 6.4401. Rights. An accused has the right to:

(1) have in advance of trial a copy of the charge upon which he is to be tried;

(2) consult counsel before trial and to have counsel of his choosing defend him at trial;

(3) apply to the Court for a continuance to prepare his defense, which the Court grants upon finding that prejudice to the defendant's defense would occur without an extension;

(4) call at trial witnesses of his choosing and to have witnesses summoned by the Court at his request;

(5) on his initiative give evidence on his own behalf at trial; and

(6) have proceedings interpreted for his benefit when he is unable to understand them.

Chapter 45. Pre-trial Matters

Section 6.4501. Prosecution. The conduct of a criminal prosecution is in the name of the State of Kosrae.

Section 6.4502. Initial appearance.

(1) Upon arrest or within a reasonable time after arrest an accused comes before the Court in an initial appearance at which the Court:

(a) informs the accused of:

(1) the charge;

(2) the right to counsel;

(3) the right to release on bail pursuant to law; and

(b) allows the accused reasonable time and opportunity to consult counsel upon his request;

(c) informs the accused of his right to a preliminary examination, to waive the examination, and the consequences of waiver;

(d) informs the accused that he is free to refrain from making a statement and that the prosecution may use a statement against him; and

(e) sets bail pursuant to law, upon the accused's request, or alters bail previously set, in its discretion.

(2) The Court does not request the accused person to plead at an initial appearance.

Section 6.4503. Preliminary examination.

(1) If an accused does not waive preliminary examination, the Court hears the evidence at a preliminary examination within a reasonable time following an initial appearance.

(2) If before trial the Court has released an accused on bail or personal recognizance and the accused requests a preliminary examination by the Court, the Court sets a preliminary examination, giving the accused and the State reasonable notice.

(3) The Court grants a reasonable continuance at the accused's or State's request for the preparation of evidence. The accused has the right to release on bail pursuant to law during a continuance.

(4) In a preliminary examination an accused may cross-examine witnesses against him and may introduce evidence in his own behalf.

(5) If an accused waives preliminary examination or, if from the evidence it appears to the Court that there is probable cause to believe that the accused has committed an offense, the Court:

(a) sets trial;

(b) fixes, continues, or alters bail pursuant to law; and

(6) If following the preliminary examination it appears to the Court that the warrant of arrest, complaint or other statement of the charge does not properly name or describe the accused or that, although not guilty of the offense specified, there is probable cause to find that the accused has committed some other offense, the Court holds the accused to answer for the offense shown by the evidence.

(7) If the accused does not waive preliminary examination and from the evidence it does not appear to the Court that there is probable cause to believe that the accused has committed an offense, the Court discharges him.

Chapter 46. Bail

Section 6.4601. Right. A person arrested for an offense has the right to release by the Court on bail before conviction, unless he is under the influence of intoxicating drink or drugs and the Court determines that he will be offensive to the general public.

Section 6.4602. Setting. The Court may set bail upon issuance of an arrest warrant by endorsement on the warrant, or at any time prior to conviction. The Court may release a person following a stay of execution of sentence.

Section 6.4603. Notice by Police. When an arrested person, for whom the Court has not set bail or to whom has once denied bail in the case of murder in the first degree, notifies a police officer that he wants to give bail, the police officer through his chain of command notifies the Court which may order the appearance of the arrested person before the Court.

Section 6.4604. Amount. The Court sets bail in an amount which it finds will insure the accused's presence in the future, taking into account the nature and circumstances of the offense charged, the weight of the evidence against the accused, the danger the accused poses to the community, and the accused's financial ability and character.

Section 6.4605. Form and disposition; sureties. The Court may accept cash or bonds or notes of the United States as bail. Upon giving of a bail bond the Court may require a surety. The Court may accept a person of good standing in the community who is in a position of moral or customary authority over the accused, such as his father or the head of his extended family group, as surety without the pledging of property if the [the] Court considers that the surety will reasonably guarantee the appearance of the accused. Otherwise, a surety is not acceptable unless the combined net worth beyond all just debts and obligations is not less than the amount of the bond. The Court may require a surety to furnish proof of his sufficiency by oath or otherwise. The Clerk of Court has custody of all property, money and materials given as bail.

Section 6.4606. Modification. For cause shown the Court may increase or decrease the amount of bail, require an additional surety, or allow a substitution of surety. If the Court requires an increase ~~with~~ [in] the amount of bail or an additional surety, it may order the accused's detention unless he gives bail in the increased amount or furnishes the additional surety.

Section 6.4607. Exoneration and release. Upon the satisfaction of bail conditions, a deposit of cash in the amount of a bail bond, or a timely surrender of the accused into custody, the Court exonerates an obligor and releases the bail.

Section 6.4608. Personal recognizance. In the case of arrest for a misdemeanor the Court may order an accused's release on personal recognizance in a sum set by the Court, or without security, into the custody of a responsible member of the community, if the accused's usual place of abode or business or employment is in the State.

Chapter 47. Witnesses

Section 6.4701. Summons. The Court or a Court official authorized in writing by the Court, may issue a witness summons in a proceeding. The Court may determine that a person's failure without adequate excuse to obey a witness summons is a contempt of court.

Section 6.4702. Detention. If the Court has cause to find that a material witness may be subject to intimidation or, for other reason unavailable at trial, the Court may make a written order for his detention, for a period not exceeding twenty-one days without the issuance of a further order. A person detained as a material witness has the right to release upon giving bail for his appearance as witness in an amount fixed by the Court or the appellate court. The Court or appellate court may order the witness' release without bail if his detention exceeds an unreasonable length of time and may modify the bail requirements at any time.

Chapter 48. Juveniles

Section 6.4801. Definition. In this chapter:

(1) "Delinquent child" includes a minor who violates State or national law, except a traffic law; [who] does not subject himself to the reasonable control of a parent, teacher, guardian, or custodian, being wayward or habitually disobedient; [who] is habitually absent from home or school without good reason; or [who] injures or endangers his or other's morals or health.

(2) "Juvenile traffic offender" is a minor who violates a State traffic law.

Section 6.4802. Procedures. The Court by rule provides a flexible procedure for a criminal proceeding involving an accused who is a minor, including:

(1) report by a welfare or probation officer in advance of trial;

(2) detention, when necessary, apart from adult offenders;

(3) an informal hearing in closed session; and

(4) interrogation of parent or guardian and release in his custody if appropriate.

A criminal proceeding involving a minor occurs in accordance with this chapter and rule, except that the Court may treat an offender over the age of sixteen in all respects as an adult if the Court determines that his physical and mental maturity justify.

Section 6.4803. Finding of delinquency. A Court finding that a person is a delinquent child does not constitute a criminal conviction.

Section 6.4804. Contributing to delinquency. If in a juvenile delinquency proceeding the Court finds that a person is encouraging, causing, or contributing to an act or condition which results in an adjudication of the delinquency of a child, the Court may require the person to come before it, and after hearing, order the person to perform a duty owed by the person to the child, or refrain from doing anything inconsistent with a duty, and, upon the person's failure to comply with the order, proceed against him for criminal or civil contempt.

Section 6.4805. Appeal. An adjudication or order in a juvenile delinquency proceeding is subject to appeal as in civil actions, without the payment of the filing fee.

Section 6.4806. Confinement. The court may order the confinement of a delinquent child in a place, under conditions, and for a period not exceeding the period of confinement provided by law for the offense which the Court determines are in the delinquent child's best interests.

Section 6.4807. Liability of parent for act of child.

(1) A parent or guardian having custody of a minor has the duty to control the minor and has the power to exercise parental control and authority over the minor. If the Court finds at a hearing that a parent or guardian having custody of a minor has failed or neglected to subject him to reasonable parental control and authority, and that the failure or neglect is the proximate cause of the minor's act upon which the Court based a finding of delinquency, the Court may require the parent or guardian to enter into a recognizance with sufficient surety, in an amount which the Court finds reasonable, conditioned upon the faithful discharge of the conditions of probation of the minor.

(2) If the child commits a subsequent act for which the Court finds him delinquent, or violates a condition of probation and the Court finds at a hearing that the failure or neglect of the parent or guardian to subject him to reasonable parental control and authority or to faithfully discharge a condition of the minor's probation is the proximate cause of the minor's act upon which the Court bases the subsequent finding of delinquency, or by which the minor violated a conditions of probation, the Court may order application of the recognizance in payment of damage caused by the minor, for payment into the Treasury.

(3) A parent or guardian having the power to exercise parental control over a minor shall be liable for any fine and/or for any damage award imposed on the minor for the commission of a motor vehicle offense described in Kosrae State Code Title 13, Chapter 7. The Court may enforce this liability as it would any monetary judgment.

Background

Subsection (3) was added by State Law 7-14

Section 6.4808. Juvenile traffic offenders. Juvenile traffic offenders shall be subject to citation and prosecution for the commission of any motor vehicle offense described in Kosrae State Code Title 13, Chapter 7, to the same extent as an adult. The Court shall treat juvenile traffic offenders in all respects as an adult.

Background

Added by State Law 7-14.

Chapter 49. Sentencing

Section 6.4901. Sentencing. In imposing or suspending the execution of a sentence, or in suspending the imposition of sentence and granting probation, the Court gives due recognition to the State's custom and tradition and may hear evidence of the convicted's good or bad character, including a criminal record.

Section 6.4902. Fine. When an offense is punishable by fine the Court may give directions regarding payment of a fine as it finds just. Upon default of payment of a fine the Court at any time may order the defendant's imprisonment for a period of time in its discretion, and may modify an order as it finds justice requires, until full payment of a fine or the completion of an imprisonment ordered in default of payment. An accused has a right to be heard before the Court imposes or modifies a sentence. A period of imprisonment pursuant to this section does not exceed the period of time provided by law for the offense.

Section 6.4903. Residence. In lieu of or in addition to other lawful punishment, the Court may order that a person found guilty of an offense establish and maintain a place of residence within a specified area for a period not exceeding the period of imprisonment provided by law for the offense.

Section 6.4904. Restitution, compensation and forfeiture. Upon conviction of the wrongful or unlawful sale, purchase, use or possession of property, or of a wilful wrong causing damage to another, in lieu of or in addition to other lawful punishment, the Court may order restitution or compensation to the owner or person damaged or the forfeiture of the property to the Government or a municipal government.

Section 6.4905. Closing of business; revocation.

(1) Upon conviction of an offense involving the sale of a harmful article or the operation of an unlawful business, in lieu of or in addition to other lawful punishment, the Court may order the vacating, or closing for a specified time, of the place of sale or business.

(2) Upon conviction of an offense the Court may revoke a license or permit related to the offense granted pursuant to State law.

Section 6.4906. Labor. If a sentence of imprisonment is applicable in lieu of ordering imprisonment, the Court may sentence the accused to perform hard labor in accordance with his physical ability on a public project for a period not exceeding the period of imprisonment provided by law for the offense.

Section 6.4907. Place of confinement. Upon sentencing a person to imprisonment the Court designates the place of confinement in the commitment order.

Section 6.4908. Suspension of sentence. In imposing a sentence of imprisonment upon a person convicted of an offense the Court may direct suspension of the execution of sentence on conditions. A court's subsequent conviction of the person of another offense has the effect of revoking the suspension of the execution of the previous sentence, unless the Court otherwise directs.

Section 6.4909. Probation.

(1) Upon entering a judgment of conviction the Court may suspend the imposition of sentence when satisfied that a suspension of sentence will serve the ends of justice and the best interests of the public and the defendant, and may direct that the suspension continue for a period of time, not exceeding the period provided by law for the offense upon conditions placing the person on probation, under the charge and supervision of a probation officer or other designated person designated during suspension.

(2) Upon a convicted's violation of a condition of probation during a probationary period the Court may issue a warrant for the convicted's arrest, after giving the person an opportunity to be heard and to rebut evidence presented against him, revoke the probation.

(3) Upon revocation of probation the Court may impose a sentence which it may have initially imposed if the Court has not suspended imposition of sentence.

(4) The Court may at any time during a period of probation modify an order of suspension of imposition of sentence. When it finds a termination of probation serves the ends of justice and the best interests of the public and the defendant, and when the good conduct and reform of the person held on probation warrants it, the Court may at any time terminate the period of probation and discharge the convicted. If the Court has not revoked the order of probation and pronounced sentence, it discharges the defendant at the end of the period of probation.

(5) Upon discharge of a convicted without imposition of sentence the Court vacates the judgment of conviction.

(6) When the Court vacates a judgment of conviction in a proceeding pursuant to this section, no person may for any purpose treat the person who is the subject of the judgment as if the Court had convicted him in that proceeding.