§ 15-6. Criminal discovery

(a) Discovery procedure.

(1) A party seeking discovery in the Cherokee Courts must, before filing any motion before a judge, request in writing that the other party comply voluntarily with the discovery request. Upon receiving a negative or unsatisfactory response, or upon the passage of 14 calendar days following the receipt of the request without response, the party requesting discovery may file a written motion for discovery under the provisions of this Rule concerning any matter as to which voluntary discovery was not made pursuant to request. Motions for discovery must be in writing, specifying the grounds therefore and detailing the request for voluntary disclosure and must be filed with the Clerk and served on the opposing party/counsel at least five days prior to the scheduled hearing, which must take place during a previously scheduled term of criminal court, unless the parties stipulate otherwise.

(2) To the extent that discovery authorized in this Rule is voluntarily made in response to a request, the discovery is deemed to have been made under an order of the court for the purposes of this Rule.

(3) A defendant may as a matter of right request voluntary discovery from the Tribe under subsection (a)(1) above not later than the fourteenth calendar day after either:

(i) The service of notice upon him that a warrant, criminal summons, statement of charges or other approved criminal process has issued, or

(ii) The appointment of counsel—whichever is later.

(4) The Tribe may as a matter of right request voluntary discovery from the defendant, when authorized under this Rule, at any time not later than the fourteenth calendar day after disclosure by the Tribe with respect to the category of discovery in question.

(b) Disclosure of evidence by the Tribe—Information subject to disclosure.

(1) Statement of defendant. Upon motion of a defendant, the court must order the prosecutor:

(i) To 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 Tribe the existence of which is known or by the exercise of due diligence may become known to the prosecutor; and

(ii) To divulge, in written or recorded form, the substance of any oral statement relevant to the subject matter of the case made by the defendant, regardless of to whom the statement was made, within the possession, custody or control of the Tribe, the existence of which is known to the prosecutor or becomes known to him prior to or during the course of trial; except that disclosure of such a statement is not required if it was made to an informant whose identity is a prosecution secret and who will not testify for the prosecution, and if the statement is not exculpatory. If the statement was made to a person other than a law-enforcement officer and if the statement is then known to the Tribe, the Tribe must divulge the substance of the statement no later than 12 o'clock noon, on Wednesday prior to the beginning of the week during which the case is calendared for trial. If disclosure of the substance of defendant's oral statement to an informant whose identity is or was a prosecution secret is withheld, the informant must not testify for the prosecution at trial.

(2) Statement of a codefendant. Upon motion of a defendant, the court must order the prosecutor:

(i) To permit the defendant to inspect and copy or photograph any written or recorded statement of a codefendant which the Tribe intends to offer in evidence at their joint trial; and

(ii) To divulge, in written or recorded form, the substance of any oral statement made by a codefendant which the Tribe intends to offer in evidence at their joint trial.

(3) Defendant's prior record. Upon motion of the defendant, the court must order the Tribe to furnish to the defendant a copy of his prior criminal record, if any, as is available to the prosecutor.

(4) Documents and tangible objects. Upon motion of the defendant, the court must order the prosecutor to permit the defendant to inspect and copy or photograph books, papers, documents, photographs, motion pictures, mechanical or electronic recordings, buildings and places, or any other crime scene, tangible objects, or copies or portions thereof which are within the possession, custody, or control of the Tribe and which are material to the preparation of his defense, are intended for use by the Tribe as evidence at the trial, or were obtained from or belong to the defendant.

(5) Reports of examinations and tests. Upon motion of a defendant, the court must order the prosecutor to provide a copy of or to permit the defendant to inspect and copy or photograph results or reports of physical or mental examinations or of tests, measurements or experiments made in connection with the case, or copies thereof, within the possession, custody, or control of the Tribe, the existence of which is known or by the exercise of due diligence may become known to the prosecutor. In addition, upon motion of a defendant, the court must order the prosecutor to permit the defendant to inspect, examine, and test, subject to appropriate safeguards, any physical evidence, or a sample of it, available to the prosecutor if the Tribe intends to offer the evidence, or tests or experiments made in connection with the evidence, as an exhibit or evidence in the case.

(6) Statements of Tribe's witnesses.

(i) In any criminal prosecution brought by the Tribe, no statement or report in the possession of the Tribe that was made by a Tribe witness or prospective Tribe witness, other than the defendant, shall be the subject of subpoena, discovery, or inspection until that witness has testified on direct examination in the trial of the case.

(ii) After a witness called by the Tribe has testified on direct examination, the court shall, on motion of the defendant, order the Tribe to produce any statement of the witness in the possession of the Tribe that relates to the subject matter as to which the witness has testified. If the entire contents of that statement relate to the subject matter of the testimony of the witness, the court shall order it to be delivered directly to the defendant for his examination and use.

(iii) If the Tribe claims that any statement ordered to be produced under this section contains matter that does not relate to the subject matter of the testimony of the witness, the court shall order the Tribe to deliver that statement for the inspection of the court in camera. Upon delivery the court shall excise the portions of the statement that do not relate to the subject matter of the testimony of the witness. With that material excised, the court shall then direct delivery of the statement to the defendant for his use. If, pursuant to this procedure, any portion of the statement is withheld from the defendant and the defendant objects to the withholding, and if the trial results in the conviction of the defendant, the entire text of the statement shall be preserved by the Tribe and, in the event the defendant appeals, shall be made available to the appellate court for the purpose of determining the correctness of the ruling of the trial judge. Whenever any statement is delivered to a defendant pursuant to this subsection, the court, upon application of the defendant, may recess proceedings in the trial for a period of time that it determines is reasonably required for the examination of the statement by the defendant and his preparation for its use in the trial.

(iv) If the Tribe elects not to comply with an order of the court under subsection (ii) or (iii) to deliver a statement to the defendant, the court shall strike from the record the testimony of the witness, and direct the jury to disregard the testimony, and the trial shall proceed unless the court determines that the interests of justice require that a mistrial be declared.

(v) The term "statement," as used in subsection (ii), (iii), and (iv) in relation to any witness called by the Tribe means:

a. A written statement made by the witness and signed or otherwise adopted or approved by him;

b. A stenographic, mechanical, electrical, or other recording, or a transcription thereof, that is a substantially verbatim recital or an oral statement made by the witness and recorded contemporaneously with the making of the oral statements.

(7) DNA laboratory reports. The defendant shall have the right to obtain a copy of DNA laboratory reports provided to the Tribe revealing that there was a DNA match to the defendant that was derived from a CODIS match during a comparison search involving the defendant's DNA sample, in accordance with the procedure set forth in (a) above.

(8) Production of documents not required. Except as provided in (b)(1), (b)(2) ,(b)(3), and (b)(5) above, this Rule does not require the production of reports, memoranda, or other internal documents made by the prosecutor, law-enforcement officers, or other persons acting on behalf of the Tribe in connection with the investigation or prosecution of the case, or of statements made by witnesses or prospective witnesses of the Tribe to anyone acting on behalf of the Tribe.

(9) Voluntary disclosures. Nothing in this Rule prohibits a prosecutor from making voluntary disclosures in the interest of justice.

(c) Disclosure of evidence by the defendant—Information subject to disclosure.

(1) Documents and tangible objects. If the court grants any relief sought by the defendant under (b)(4), above, the court must, upon motion of the Tribe, order the defendant to permit the Tribe to inspect and copy or photograph books, papers, documents, photographs, motion pictures, mechanical or electronic recordings, 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 in evidence at the trial.

(2) Reports of examinations and tests. If the court grants any relief sought by the defendant under (b)(5), above, the court must, upon motion of the Tribe, order the defendant to permit the Tribe to inspect and copy or photograph results or reports of physical or mental examinations or of tests, measurements or experiments made in connection with the case, or copies thereof, within the possession and control of the defendant which the defendant intends to introduce in evidence 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 his testimony. In addition, upon motion of a prosecutor, the court must order the defendant to permit the prosecutor to inspect, examine, and test, subject to appropriate safeguards, any physical evidence or a sample of it available to the defendant if the defendant intends to offer such evidence, or tests or experiments made in connection with such evidence, as an exhibit or evidence in the case.

(3) Notice of affirmative defenses. A defendant who intends to assert a defense of alibi, duress, entrapment, self-defense, accident, automatism, public authority, involuntary intoxication, or voluntary intoxication must give notice to the Tribe of the intent to offer such defense at trial. Notice of defense as described in this subsection is inadmissible against the defendant. Notice of defense must be given in writing not less than 28 calendar days prior to trial, and the defendant must file a copy of the notice with the clerk.

(i) As to the defense of alibi, the court may order, upon motion by the Tribe, the disclosure of the identity of alibi witnesses no later than 14 calendar days before trial. If disclosure is ordered, upon a showing of good cause, the court shall order the Tribe to disclose any rebuttal alibi witnesses no later than seven calendar days before trial. If the parties agree, the court may specify different time periods for this exchange so long as the exchange occurs within a reasonable time prior to trial.

(ii) As to only the defenses of duress, entrapment, automatism, public authority, or involuntary intoxication, notice by the defendant shall contain specific information as to the nature and extent of the defense.

(4) Insanity and mental conditions. A defendant who intends to assert a defense of insanity, mental infirmity, or diminished capacity at the time of the alleged offense, or expert evidence relating to a mental disease or defect or any other mental condition of the defendant bearing on the issue of guilt, must so notify the Tribal Prosecutor in writing not less than 28 calendar days prior to trial, and file a copy of the notice with the clerk. Such notice shall contain specific information as to the nature and extent of the defense. A defendant who fails to do so cannot rely on an insanity, mental infirmity, or diminished capacity defense. The court may, for good cause, allow the defendant to file the notice late, grant additional trial-preparation time, or make other appropriate orders.

(5) Discovery and inspection of documents not authorized. Except as provided in (c)(2) and (c)(3), above, and in Cherokee Rule of Criminal Procedure 11, this Rule does not authorize the discovery or inspection of reports, memoranda, or other internal defense documents made by the defendant or his attorneys or agents in connection with the investigation or defense of the case, or of statements made by the defendant, or by prosecution or defense witnesses, or by prospective prosecution witnesses or defense witnesses, to the defendant, his agents, or attorneys.

(d) Continuing duty to disclose.

(1) If a party, subject to compliance with an order issued pursuant to this Rule, discovers prior to or during trial additional evidence or decides to use additional evidence, and the evidence is or may be subject to discovery or inspection under this Rule, he must promptly notify the attorney for the other party of the existence of the additional evidence.

(e) Regulation of discovery.

(1) Upon written motion of a party and a finding of good cause, which may include, but is not limited to a finding that there is a substantial risk to any person or physical harm, intimidation, bribery, economic reprisals, or unnecessary annoyance or embarrassment, the court may at any time order that discovery or inspection be denied, restricted, or deferred, or may make other appropriate orders.

(2) The court may permit a party seeking relief under subsection (e)(1) to submit supporting affidavits or statements to the court for in camera inspection. If thereafter the court enters an order granting relief under subsection (e)(1), the material submitted in camera must be sealed and preserved in the records of the court to be made available to the appellate court in the event of an appeal.

(3) An order of the court granting relief under this Rule must specify the time, place, and manner of making the discovery and inspection permitted and may prescribe appropriate terms and conditions.

(4) If at any time during the course of the proceedings the court determines that a party has failed to comply with this Rule or with an order issued pursuant to this Rule, the court in addition to exercising its contempt powers may:

(i) Order the party to permit the discovery or inspection; or

(ii) Grant a continuance or recess; or

(iii) Prohibit the party from introducing evidence not disclosed; or

(iv) Declare a mistrial; or

(v) Enter other orders that are just and appropriate under the circumstances.

(5) Prior to finding any sanctions appropriate, the court shall consider both the materiality of the subject matter and the totality of the circumstances surrounding an alleged failure to comply with this Rule or an order issued pursuant to this Rule.

(6) No party is entitled to nor may they seek any remedy from the court for any discovery violation if they have failed to comply with the provisions of this Rule.

(f) Applicability.

(1) The procedures and requirements contained in this Section shall not apply to criminal offenses for which a defendant is not subject to any term of imprisonment.

(2) The procedures and requirements contained in this Section shall not apply to infractions, waivable traffic offenses, or private charges in which non-official members of the general public have initiated criminal charges.

(3) In the case of charges described in (f)(1) and (2), above, neither the Tribe nor the defendant shall have any duty to provide discovery except as otherwise provided by law.

(Ord. No. 480, 5-13-2013 )