RULES OF CRIMINAL PROCEDURE

I.   SCOPE, PURPOSE
AND CONSTRUCTION

      Rule 1.   Scope.   These rules govern the procedure in all criminal proceedings in the Kosrae State court.

      Rule 2.    Purpose and Construction.   These rules are intended to provide for the just determination of every criminal proceeding.  They shall be construed  to secure simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay.
 
      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 judge or clerk of this Court.

II.   PRELIMINARY PROCEEDINGS

      Rule 4.   Arrest Warrant or Summons.
 
     (a)    Issuance.  If it appears to the judge 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 discretion of the judge or upon the request of the government, 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.

     (c)    Form.
 
          (1)    Warrant.    The warrant shall be signed by a judge and shall contain the name of the defendant, or, if his name is unknown, any name or description by which he 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 judge.

          (2)    Summons.   The summons shall be in the same from as the warrant except that it shall summon the defendant to appear before a judge at a stated time and place.

     (d)    Execution or Service; and Return.
 
          (1)    By Whom.  The warrant shall be executed by a policeman or by some other officer authorized by law or, when the judge 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 State of Kosrae.

          (3)    Manner.   The warrant shall be executed by the arrest of the defendant. The officer need not have the warrant in his possession oat the time of the arrest, but upon request he shall show the warrant to the defendant as soon as possible. If the Officer does not have the warrant in his possession at the time of the arrest, he 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 business with some person of suitable age and discretion 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 judge before whom the defendant is brought pursuant to Rule 5.  At the request of the government and unexecuted warrant shall be returned to the judge by whom it was issued and shall be cancelled by him.  On or before the return day the person to whom a summons was delivered for service shall make return thereof to the judge before whom the summons is returnable.  At the request of the government made at any time while the complaint is pending, a warrant returned unexecuted and not cancelled or a summons returned unserved or a duplicate thereof may be delivered by the judge to the policeman or other authorized person for execution or service.

      Rule 5.    Initial Appearance.
 
          (a)    In General.   An officer making an arrest with or without a warrant shall take the arrested person without unnecessary delay before the judge.  If a person arrested without a warrant is brought before a judge, 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)   Vacant.
 
          (c)    Notification of Rights.   The arrested or summoned defendant shall not be called upon to plead at the initial appearance.  The judge shall inform the defendant of the complaint written or verbal against him and of any affidavit filed, of his right to retain counsel, of his right to request the assignment of counsel if he is unable to obtain counsel and of the general circumstances under which he may secure pretrial release.  he shall inform the defendant that he is not required to make a statement and that any statement made by him may be used against him. he shall allow the defendant to bail as provided by statute or rule.

III.   THE INFORMATION

      Rule 6.   Vacant.

      Rule 7.   The Information.
 
          (a)    Use.  Offense shall be prosecuted by information.
 
          (b)    Vacant.

          (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, stating for each count the citations of the statutes, rules, regulations, or other provisions of law which the defendant is alleged to have violated.  It shall be signed by the attorney or trial counselor for the government.

               (2)    Vacant.

               (3)    Harmless Error.   Error in the citation or description or its omission shall not be grounds for dismissal of the information or for reversal of a conviction if the error or omission did not mislead the defendant to his 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 arraignment or within ten days after arraignment 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.

      Rule 8.   Joinder of Offense 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 similar character or are based on the same act 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.   Vacant.

     IV.   ARRAIGNMENT AND
PREPARATION FOR TRIAL

      Rule 10.   Arraignment.  Arraignment shall be conducted in open court and shall consist of reading the information to the defendant or stating to him the substance of the charge and calling on him to plead thereto.  He shall be given a copy of the information before he is called upon to plead.

      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 address the defendant personally in open court and inform him of, and determine that he understands, the following:

               (1)  the nature of the charge to which the plea is offered, and maximum possible penalty provided by law; and

               (2)  if the defendant is not represented by counsel, that he has the right to be represented by counsel at every stage of the proceeding against him and, if necessary, one will be appointed to represented him; and

               (3)  that he has the right to plead not guilty or to persist in that plea if it has already been made, and he has 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 against him, and the right not to be compelled to incriminate himself; and

               (4)  that if his plea of guilty or nolo contendere is accepted by the court, there will not be a further trial of any kind, so that by pleading guilty or nolo contendere he waives the right to a trial and

               (5)  if the court intends to question the defendant under oath, on record, and in the presence of counsel about the offense to which he has pleaded, that his answers may later be used against him 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.  The court shall also inquire as to whether the defendant's willingness to plead guilty or nolo contendere results from prior discussions between the attorney for the government and the defendant or his attorney.
 
          (e)     Plea Agreement Procedure.
 
               (1)     In General.  The attorney for the government and the attorney for the defendant or the defendant when acting pro se may engage in discussions with a view toward reaching an agreement that, upon the entering of a plea of guilty or nolo contendere to a charged offense or to a lesser or relation offense, the attorney for the government will move for dismissal of other charges, or make a recommendation, or agree not to oppose the defendant's request for a particular sentence, with the understanding that such recommendation or request shall not be binding upon the Court.  The court shall not participate in any such discussions.

               (2)     Notice of Such Agreement.  If a plea agreement has been reached by the parties, the court shall, on the record, require the disclosure of the agreement in open court or, on a showing of good cause, in camera, at the time the plea is offered.  The court shall advise the defendant that if the court in sentencing does not comply with the government's recommendation or request, the disposition of the case may be less favorable to the defendant than that contemplated by the plea agreement, but the defendant nevertheless has no right to withdraw his plea.

               (3)     Vacant.

               (4)     Rejection of a Plea Agreement for Dismissal of Charges.     If the court rejects the plea agreement's recommendation for dismissal of specified charges, the court shall, on the record, inform the parties and advise the defendant personally in open court or, on a showing of good cause, in camera, of this fact.

               (5)   Vacant.

               (6)   Vacant.

          (f)     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 a factual basis for the plea.

          (g)     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.

      Rule 12.  Motions before Trial; Defenses and Objections.
 
          (a)     Pleadings and Motions.    Pleadings in criminal proceedings shall be the information and the pleas of not guilty, guilty, and nolo contendere.  All other pleas and demurrers and motions to quash are abolished, and defenses and objections  raised before trial which heretofore could have been raised by one or more of them shall be raised only by motion to dismiss or to grant appropriate relief, as provided  in these rules.

          (b)     Pre  Trial  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)     Request for discovery under Rule 26; or

               (5)     Requests for a severance of charges or defendants under Rule 14;

          (c)     Motion Date. The court may, at the time of the initial appearance or arraignment 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.  As soon as 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 the rule.

               (2)    At the Request of the Defendant.  As soon as 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 finding on the record.

          (f)     Effect of Failure to Raise Defenses or Objections. Failure by a party to raise defenses or 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)    Record.  A verbatim record shall be made of all proceedings at the hearing, including such findings of facts 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 his 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 or Act of the Legislature of the State of Kosrae 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 a 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 circumstance of the case it is in the interest of justice that the testimony of a prospective witness of 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.

          (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 him 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.

          (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 his 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 his 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 his 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, apart or all of a deposition, so far as otherwise admissable 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 Kosrae Rules of Evidence, or the witness gives testimony at the trial or hearing inconsistent with his 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 party, an adverse party may require him to offer all of it which is relevant to the party offered and any party may offer other parts.

          (f)    Objections to Deposition Testimony.    Objections to depositions 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.

      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 of 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 know, 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 r 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 know, 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 his 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 the 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 his relevant written or recorded statement, and the record of any felony convictions of such proposed witnesses.

                    (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 therefore.

               (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.

               (3)     Vacant.

          (b)     Disclosure of Evidence by the Defendant.
 
               (1)     Information Subject to Disclosure.
 
                    (A)     Document 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  and copy or photograph books, papers, documents, photographs, tangible objects, or copies of 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 by the government, the defendant, on request of the government, 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 his testimony.

                    (C)     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 report, 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 defense of the case, or of statements made by the defendant, or by government or defense witnesses, to the defendant, his agents or attorneys.

          (c)     Continuing Duty to Disclosure.    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, the party shall promptly notify the other party or his attorney or 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 at 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 make specify the time, place, and manner of making the discovery and inspection and may prescribe such terms and conditions as are just.

          (e)     Vacant.
 
      Rule 17.  Subpoena.
 
          (a)     For Attendance of Witnesses; Form; Issuance.    A subpoena shall be issued by the clerk of 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 given testimony at the time and place specified therein.  The clerk shall  issue a subpoena, signed 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 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 Kosrae State 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 therein.  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 policeman 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 (1) 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 state of Kosrae, or any governmental officer or agency charged with the responsibility of enforcing the criminal laws and the State of Kosrae.  At or before the time stated for appearance in a 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 State of Kosrae.

          (f)    For Taking Deposition; Place of Examination.

               (1)    Issuance.  An order to take a deposition authorized the issuance by the clerk of subpoenas for the persons named or described therein.

               (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 him 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.

      Rule 17.1    Pre trial 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 matter 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 his attorney at the conference shall be used against the defendant unless the admissions are reduced to writing and signed by the defendant and his attorney.  This rule shall not be revoked in the case of a defendant who is not represented by counsel.

V.   VENUE

      Rule 18.  Place of Prosecution and Trial.    Except as otherwise permitted by statute or by these rules, the prosecution shall be held in the Kosrae State Court in Tofol.

      Rule 19.    Vacant.
 
      Rule 20.    Vacant.
 
      Rule 21.    Vacant.
 
      Rule 22.    Vacant.

VI.   TRIAL

      Rule 23.   Findings by the Court Upon Trial.  The court shall make a general finding and shall in addition, or request made before the general findings, find the facts specially.  Such findings may be oral.  If an opinion or memorandum of decision is filed, it will be sufficient if the findings of fact appear therein.

      Rule 24.    Vacant.

      Rule 25.    Justice; Disability.    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 he cannot perform those duties because he did not preside at the trial or for any other reason, he may in his discretion 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 Kosrae State Legislature 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 given 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 law.

      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 his attorney, as the case may be, to produce, for the examination and use of moving party, any statement of the witness that is in their possession and 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 his 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

          (d)    Recess for Examination of Statement.  Upon delivery of the statement to the moving party, the court, upon application of the 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 in 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 him; or

               (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 thereof.

      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 Acquittal.
 
          (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 closed of the evidence offered by the government  is not granted, the defendant may offer evidence without having reserved the right.

          (b)    Vacant.

          (c)    Motion After Finding of Guilt.  A motion for judgement of acquittal may be made or renewed within 7 days after the court makes a finding of guilt or within such further time as the court may fix during the 7-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.

      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 rebuttal.

      Rule 30.   Vacant.

      Rule 31.   Finding.
 
          (a)    Return.  The finding of the judge shall be returned in open court.

          (b)    Vacant.

          (c)    Conviction of Lesser Offense.  The defendant may be found guilty of an offense necessarily included in the offense charge or of an attempt to commit either the offense charged or an offense necessarily included therein if the attempt is an offense.
 
          (d)    Vacant
 
          (e)    Vacant

VII.   JUDGMENT

      Rule 32.   Sentence and Judgment.
 
          (a)    Sentence.
 
               (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 him if he wishes to make a statement in his 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 his 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 apply 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 defendant.

          (b)    Judgment.
 
               (1)    In General.  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.
 
         (b)    Vacant.
 
         (c)    Pre sentence Investigation.
 
               (1)    When Made.  The Probation Officer of the Court shall make a pre sentence investigation and report to the court before the imposition of sentence or the granting of probation unless, with the permission of the court, the defendant waives a pre sentence investigation and report, or the court finds that there is in the record information sufficient to enable the meaningful exercise of sentencing discretion, and the court explains this finding on the record.  The report shall not be submitted to the court or its contents disclosed to anyone unless the defendant has pleaded guilty or nolo contendere or has been found guilty, except that a judge may, with the written consent of the defendant, inspect a pre sentence report ay any time.     

               (2)   Report.   The report of the pre sentence investigation shall contain any prior criminal record of the defendant and such information about his characteristics, his financial condition and the circumstances affecting his behavior as may be helpful in imposing sentence or in granting probation or in the correction treatment of the defendant, and such other information as may be required by the court.

               (3)   Disclosure.
 
                    (A)    Before imposing sentence the court shall upon request permit the defendant, or his counsel if he is so represented, to read the report of the pre sentence investigation exclusive of any recommendation as to sentence, 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 or 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 his counsel an opportunity to comment thereon and, at the discretion of the court, to introduce testimony or other information relating to any alleged factual inaccuracy contained in the pre sentence report.

                    (B)    If the court is of the view that there is information in the pre sentence 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 the sentence, and shall give the defendant or his counsel an opportunity to comment thereto.  The statement may be made to the parties in camera.

                    (C)    Any material disclosed to the defendant  or his counsel shall also be disclosed to the attorney for the government.

                    (D)    Any copies of the pre sentence investigation report made available to the defendant or his 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 otherwise directs.

                    (E)    Vacant.

          (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 his plea.

          (e)    Vacant.

      Rule 32.1     Revocation or Modification of Probation.
 
          (a)     Revocation of Probation.
 
               (1)     Preliminary Hearing.  Whenever a probationer is held in custody on the grounds that he has violated a condition of his probation and the revocation hearing cannot be held immediately, either because no Justice of the State Court is then available to preside over the revocation hearing or for other reasons, he shall be afforded a prompt hearing before a judicial officer in order to determine whether there is probable cause to hold the probationer for a revocation hearing. The probationer shall be given:

                    (A)   notice of the preliminary hearing and its purpose and of the alleged violation of probation;

                    (B)   an opportunity to appear at the hearing and present evidence in his own behalf;

                    (C)   upon request, the opportunity to question witnesses against him unless, for good cause, the judicial officer decides that justice does not require the appearance of the witness; and

                    (D)   notice of his right to be represented by counsel.  If the judicial officer finds that probable cause exists he shall make a determination concerning eligibility for the release pursuant to the standards specified in Rule 46(c).

               (2)   Revocation Hearing.  The revocation hearing, unless waived by the probationer shall be held within a reasonable time and presided over by a Justice of the State Court.  The probationer shall be given:

                    (A)     written notice of the alleged violation of probation.  

                    (B)     disclosure of the evidence against him;

                    (C)     an opportunity to appear and to present evidence in his own behalf;

                    (D)     the opportunity to question witnesses against him; and

                    (E)     notice of his right to represented by counsel.

          (b)     Modification of Probation.       A hearing and assistance of counsel are required before the terms or conditions of probation can be modified, unless the relief granted to the probationer upon his request, or the court's own motion, is favorable to him.  

      Rule 33.   New Trial.   The court on motion of a defendant may grant a new trial to him if required in the interests of justice, or it may vacate the judgement  if entered, take additional testimony and direct the entry of a new judgement.  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 7 days after a finding of guilty or within such further time as the court may fix during the 7-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 7 days after the finding of guilty, or after plea of guilty or nolo contendere, or within such further time as the court may fix during the 7-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 a sentence imposed in an illegal manner within the time provided herein for the reduction of sentence.

          (b)    Reduction of Sentence.  The court may modify a sentencing order 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 judgement or dismissal of the appeal, or within 120 days after entry of any order or judgment of the Appellate Division of the Supreme Court of the Federated States of Micronesia denying review of, or having the effect of upholding a judgment of conviction.

COMMENT:    The wording of this rule is changed from "may reduce a sentence" to "may modify a sentencing order" to clarify the fact that the rule does not encroach upon the governor's powers to commute sentences.  See Kosrae State vs Kilafwa Mongkeya, Criminal Case No. 98-87.

      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.

VIII.   APPEAL

      Rule 37.    Vacant

      Rule 38.     Stay of Execution, and Relief Pending Review.
 
               (a)    Stay of Execution
 
                    (1)    Vacant

                    (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 order or 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 his appeal.

                    (3)    A sentence to pay a fine or fine and costs, if an appeal is taken, may be stayed by the court or by the Appellate Division of the FSM Court 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 and costs in the registry of the state 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 may 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 PROCEEDINGS

      Rule 40.    Vacant.

      Rule 41.   Search and Seizure.
 
          (a)   Authority to Issue Warrant. A search warrant authorized by this rule may be issued by a judge upon the request of a policeman or an attorney for the government.

          (b)     Property of Persons Which May be Seized with a Warrant.     A warrant may be issued 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 cause, or who is unlawfully restrained.

          (c)     Issuance and Contents
 
               (1)     Warrant upon Affidavit or Recorded Oral Testimony.     A warrant shall issue only on an affidavit or affidavits, or oral testimony recorded verbatim, sworn to before a judicial officer and establishing the grounds for issuing the warrant.  If the judicial officer is satisfied that grounds for the application exist or that there is probable cause to believe that they exist, he  shall issue a warrant identifying the property 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 he may produce, provided that such proceeding shall be taken down by a court reporter or recording equipment and made a part of the affidavit.  The warrant shall be directed to a policeman.  It shall command the policeman to search, within a specified period of time not to exceed 10 days, the person or place named for the property 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 returned.

               (2)    Vacant.

          (d)    Execution and Return with Inventory.  The policeman taking property under the warrant shall give to the person form 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 policeman.  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 warrant.

          (e)    Motions for Returns of Property.    A person aggrieved by an unlawful search and seizure may move the court for the return of the property on the ground that he is entitled to lawful possession of the property which was illegally seized.  The justice shall receive evidence on any issue of fact necessary to the decision of the motion.  If the motion is granted the property shall be restored and it shall not be admissible in evidence at any hearing or trial.  If the 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 12.

          (f)    Motion to Suppress.    A motion to suppress evidence may be made as provided in Rule 12.

          (g)    Return of Papers to Clerk. The judge 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 court.

          (h)    Definition.  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 certifies that he saw or heard the conduct constituting the contempt and that it was committed in the actual presence of the court, 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 and describe 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 of 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 charge 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.  Upon a finding of guilt the court shall enter an order fixing the punishment.

X.   GENERAL PROVISION

      Rule 43.    Presence of the Defendant.
 
          (a)     Presence Required.     The defendant shall be present at arraignment, at the time of the plea, at every stage of the trial including the finding of the court, and at the imposition of sentence, except as otherwise provided by this rule.

          (b)     Continued Presence 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 his right to be present whenever a defendant, initially present, voluntarily absents himself after the trial has commenced.

          (c)     Presence Not Require.  A defendant need not be present in the following situations:

               (1)     A corporation may appear by counsel for all purposes.
 
               (2)     At a conference or argument upon a question of law.

               (3)     At a reduction of sentence under Rule 35.

      Rule 44.    Right to and Assignment of Counsel.
 
          (a)     Right to Assigned Counsel. Whenever two or more defendants have been jointly charged pursuant to Rule 89(b), or have been joined for trial pursuant to Rule 13, and are represented by the same retained or assigned counsel who are associated in the practice of law, the court shall promptly inquire with the 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 such 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, or, when the act to be done is the filing of some paper in court, a day on which weather or other conditions have made the office of the clerk of the court inaccessible in which event the period runs until the end of the next day which is not one of the aforementioned days.  When a period of time prescribed or allowed is less tan 7 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, Thanksgiving Day, Christmas Day, Liberation Day, and any other day appointed as a holiday by the Governor or Legislature of the State of Kosrae, or the Chief Justice of the Kosrae State Court.

          (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, and 34, except to the extent and under the conditions stated in them.

          (c)     Vacant.

          (d)     For Motions.  A written motion, other than one 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.  The party opposing the motion shall not later than 10 days after the service of the motion upon him, 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 that he will not oppose the motion.  Failure by the moving party to file the memorandum of points and authorities may be deemed a waiver by the moving party of the motion; such failure by the opposing party may 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 him and the notice or other paper is served upon him by mail, 6 days shall be added to the prescribed period.

      Rule 46.    Release from Custody.
 
          (a)     Release Prior to Trial.
 
               (1)     Any person charged with an offense shall, at this appearance before a Judge be ordered released pending trial on his personal recognizance or upon the execution of an unsecured appearance bond in an amount specified by the Judge, unless the Judge determines, in the exercise of his discretion, that such a release will not reasonably assure that the person will not flee or will not pose a danger to any person or to the community.  When such a determination is made, the Judge shall, either in lieu of or in addition to the above methods of release, impose the first of the following conditions of release which will reasonably assure that the person will not flee or pose a danger to any person or to the community or, if no single condition gives that assurance, any combination of the following conditions:

                    (A)     place the person in the custody of a designated person or organization agreeing to supervise him;

                    (B)     place restrictions of the travel, association, or place of abode of the person during the period of release;

                    (C)     require the execution of an appearance bond in a specified amount and the deposit in the registry of the court, in cash or other security as directed, of a sum not to exceed 10 per centum of the amount of the bond, such deposit to be returned upon the performance of the conditions of release;

                    (D)     require the execution of a bail bond with sufficient solvent sureties, or the deposit of cash in lieu thereof; or

                    (E)     impose any other conditions deemed reasonably necessary to assure appearance as required, including a condition requiring that the person returns to custody after specified hours.

               (2)     In determining which conditions of release will reasonably assure that the person will not flee or pose a danger to any person or to the community, the Judge 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 his residence in the community, his record of convictions, and his record of appearance at court proceedings or of flight to avoid prosecution or failure to appear at court proceedings.

               (3)     A Judge 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 this release and shall advise him that a warrant for his arrest will be issued immediately upon any such violations.

               (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 his inability to meet the conditions of release, shall, upon application, be entitled to have the conditions reviewed by the Judge who imposed them.  Unless the conditions of release are amended and the person is there upon released, the Judge shall set forth in writing the reasons for requiring the conditions imposed.  A person who is ordered released on a condition which requires that he return to custody after specified hours shall, upon application be entitled to a review by the Judge who imposed the condition.  Unless the requirement is removed and the person is thereupon released on another condition, the Judge shall set forth in writing the reasons for continuing the requirement.  In the event that the Judge who imposed conditions is not available, any other Judge may review such conditions.

               (5)     Judge ordering the release of a person on any condition specified in this section may at any time amend his 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 his inability to meet such conditions or in the release of the person on a condition requiring him to return to custody after specified hours, the provisions of subsection (4) shall apply.

               (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 of law.

               (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 his presence by subpoena, a Judge shall impose conditions of release pursuant to Rule 46(a)(1) to (6) above.  No material witness shall be detained because of inability of comply with any condition of release if the testimony of such witness can adequately be secured by deposition, and further detention is not necessary to prevent a failure of justice.  Release may be delayed for a reasonable period of time pursuant to Rule 15.

          (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 his presence during the trial or to assure that his conduct will not obstruct the orderly and expeditious progress of the trial or pose a danger to any person or to the community.

          (c)     Pending Sentence and Notice of Appeal.   Eligibility for release pending sentence or pending notice of appeal or expiration of the time allowed for filing notice of appeal shall be in accordance with Rule 46 (A) (1) to (6) above it the defendant establishes to the court's satisfaction that one or more of such 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 detained.  The burden of establishing that the defendant will not flee or pose a danger to any other person or to the community rests with the defendant.

          (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 he proposes to justify and the encumbrances thereon, the number and amount of other bonds and undertaking for bail entered into by him and remaining undischarged and all his other liabilities.  No bond shall be approved unless the surety thereon appears to be qualified.

          (e)     Forfeiture.
 
               (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 forfeiture.

               (3)     Enforcement.  When a forfeiture has not been set aside, the court shall on motion enter a judgment of default and execution may issue thereon.  By entering into a bond the obligors submit to the jurisdiction of the court and irrevocably appoint a 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.

               (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 subdivision.

          (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 detention.

      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 estate the grounds upon which it is made and shall set forth the relief by 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 45

      Rule 48.   Dismissal.
 
          (a)     By Attorney for Government.  The attorney for the government may be leave of court file a dismissal of an information or complaint and the prosecution shall thereupon terminate.  Such a dismissal may not 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 it there is unnecessary delay in bringing a defendant to trial, the court may dismiss the information or complaint.

      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 parties.

          (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 himself 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 arraignment the clerk shall mail a notice thereof to each party, or shall have each party served with a notice thereof.  The clerk shall note in the docket the provision and method of notice.

          (d)     Filing.  Papers required to be served shall be filed with the court and shall conform to the requirements provided in civil actions.  Unless otherwise ordered by the court, parties must file with the court the original 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 and for all purposes for which an exception has heretofore been necessary it is sufficient that a party, at the time the rulings or order of the court is made or sought, makes known to the court the action which he desires the court to take or his objection to the action of the court and the grounds therefore; but if a party has no opportunity to object to a ruling or order, the absence of an objection does not thereafter prejudice him.

      Rule 52.    Harmless Error and Plain Error.
 
          (a)     Harmless Error.  Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.

          (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.    Vacant.

      Rule 55.   Records.  The clerk and assistant clerks of the Kosrae State 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 of judgment shall allow 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, but a court may provide by local rule or order that its clerk's office shall be open for specified hours on Saturdays or particular legal holidays.

      Rule 57.   Rules of court.
 
          (a)     Procedures 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 statute.

      Rule 58.   Vacant.

      Rule 59.   Effective Date.  These rules take effect on November 24, 1987.  They govern all criminal proceedings thereafter commenced and so far as just and practicable all proceedings then pending.

      Rule 60.  Title.  These rules may be known and cited as the Kosrae State Court Rules of Criminal Procedure.

      Rule 61.  These rules should be read in conjunction with the relevant statutory provisions in the Kosrae code.
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