Tennessee Rules of Criminal Procedure

RULE 1. SCOPEThese rules govern the procedure in all criminal proceedings conducted in all courts of record in Tennessee. Additionally they govern procedure in the General Sessions Courts of the state to the extent of:(a) the institution of criminal proceedings pursuant to Rules 3, 3.5, and 4;(b) the disposition of criminal charges pursuant to Rule 5;(c) preliminary examinations pursuant to Rule 5.1;(d) subpoena, pursuant to Rule 17;(e) venue as outlined in Rule 18;(f) search and seizure pursuant to Rule 41;(g) assignment of counsel as provided in Rule 44;(h) the use of electronic audio visual equipment to conduct initial appearances as provided by Rule 43.(i) in any other situation where the context clearly indicates applicability.

RULE 2. PURPOSE AND CONSTRUCTIONThese 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 and of unnecessary claims on the time of jurors.

RULE 3. THE AFFIDAVIT OF COMPLAINTThe affidavit of complaint is a written statement alleging that a person has committed an offense and alleging the essential facts constituting the offense charged. The affidavit of complaint shall be made upon oath before a magistrate or a neutral and detached court clerk who is capable of the probable cause determination required by Rule 4.

RULES 3.1 TO 3.4 [RESERVED]

RULE 3.5 CRIMINAL CITATION(a) Use of Citations. The use of citations in arrests for misdemeanors shall be as otherwise provided by law.(b) Reference to Citations. All references in these rules to citations shall be construed as meaning citations issued pursuant to law.

RULE 4. ARREST WARRANT OR SUMMONS UPON COMPLAINT(a) Issuance. If it appears from the affidavit of complaint or supporting affidavits filed with the affidavit of 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 be issued by a magistrate or clerk to any officer authorized by law to execute it, or a criminal summons for the appearance of the defendant shall issue in lieu thereof. Before ruling on a request for a warrant, the magistrate or clerk may examine under oath the complainant and any witnesses the complainant may produce. The magistrate or clerk may issue a criminal summons instead of a warrant. The district attorney general may direct the clerk to issue either a criminal summons or a warrant. More than one warrant or criminal summons may issue on the same complaint. If a

defendant fails to appear in response to the criminal summons, a warrant shall issue. The issuance of every warrant and summons in each county shall be recorded forthwith in a docket book kept by the clerk for the Court of General Sessions.(b) Probable Cause. The finding of probable cause shall be based upon evidence, which may be hearsay in whole or in part provided there is a substantial basis for believing the source of the hearsay to be credible and for believing that there is a factual basis for the information furnished.(c) Form.(1) Warrant. The arrest warrant shall be signed by the magistrate or clerk, shall contain the name of the defendant or, if the name is unknown, any name or description by which the defendant can be identified with reasonable certainty, and shall show the county in which the warrant was issued. It shall describe the offense charged in the affidavit of complaint. It shall command that the defendant be arrested and brought before the nearest appropriate magistrate of the county from which the warrant for arrest issued.A defendant arrested in one county on a warrant issued in another county for the commission of an offense for which the maximum punishment is imprisonment for ten (10) years or less is entitled to be admitted to bail in the county of arrest by the same officials and in the same manner as if arrested in the county issuing the warrant, subject to the following provisions:(A) The appropriate clerk or magistrate shall fix the amount of bail to be required and shall set it forth on the face of the warrant; and(B) The sheriff of the county in which the arrest is made or his or her deputy shall transmit the undertaking of bail to the Sheriff of the county from which the warrant issued, who shall return it to the court as provided in T.C.A. § 40-1206.(2) Summons. The criminal summons shall be in the same form as the warrant except that it shall summon the defendant to appear before a magistrate at a stated time and place.(d) Execution or Service; and Return.(1) By Whom. The arrest warrant shall be executed by an officer authorized by law. The criminal summons may be served by any person authorized to serve a summons in a civil action.(2) Territorial Limits. The arrest warrant or criminal summons may be executed or served in any county within this state.(3) Manner. The arrest warrant shall be executed by the arrest of the defendant. The officer need not have the warrant in the officer's possession at the time of the arrest, but upon request shall show the warrant to the defendant as soon as possible. If the officer does not have possession of the warrant at the time of the arrest, the officer shall then inform the defendant of the offense charged and of the fact that a warrant has been issued. The criminal summons shall be served in the same manner as a summons in a civil action.(4) Return; Reissuance. The officer executing a warrant shall make return thereof to the magistrate or clerk or other officer before whom the defendant is brought pursuant to Rule 5. At the request of the district attorney general any unexecuted warrant shall be returned to the magistrate or clerk by whom it was issued who shall cancel it. On or before the return day the person to whom a criminal summons was delivered for service shall make return thereof to the magistrate or clerk before whom the summons is returnable. At the request of the district attorney general made at any time while the affidavit of complaint is pending, a warrant returned unexecuted and not cancelled or a summons returned unserved or a duplicate thereof may be delivered by the magistrate or clerk to any authorized person for execution or service.

RULE 5. INITIAL APPEARANCE BEFORE MAGISTRATE(a) In General. Any person arrested except upon a capias pursuant to an indictment or presentment shall be taken without unnecessary delay before the nearest appropriate magistrate of the county from which the warrant for arrest issued, or the county in which the alleged offense occurred if the arrest was made without a warrant unless a citation is issued pursuant to Rule 3.5. If a person arrested without a warrant is brought before a magistrate, an affidavit of complaint shall be filed forthwith. When an arrested person appears initially before a magistrate, the magistrate shall proceed in accordance with this rule.(b) Small Offenses Triable by Magistrate. If the offense charged is a small offense triable by the magistrate under T.C.A. §§ 40-117 and 40-408, without regard to the plea, the magistrate shall advise the defendant of the charge, and determine defendant's plea. If the defendant pleads guilty the magistrate may hear such evidence as is necessary to a sound judgment and sentence the defendant to pay a fine. If the defendant pleads not guilty, the case shall be set for trial at some future day and the defendant's pretrial release dealt with under the provisions of applicable law unless the defendant agrees to an immediate trial. If the defendant is convicted, appeal lies as a matter of right to the Circuit or Criminal Court for a trial de novo without a jury.(c) Other Misdemeanors.(1) Upon Plea of Guilty. If the offense charged is a misdemeanor, but of greater magnitude than a small offense, the magistrate shall inquire how the defendant pleads to the charge. If the plea is guilty, the magistrate shall advise the defendant of the defendant's right to be prosecuted only upon an indictment or presentment, and to be tried by a jury. Unless the defendant expressly waives these rights in writing, the magistrate shall set a preliminary examination to be had within ten days if the defendant remains in custody and within thirty days if released under Rule 46, unless the defendant waives preliminary examination, in which case the magistrate may bind the defendant over to the grand jury. If the defendant offers to waive the right to a grand jury investigation and a trial by jury, the court may permit it if the district attorney general or the district attorney general's representative does not then object. In the event of such waiver, the magistrate shall hear the case upon the guilty plea and fix such sentence as the evidence warrants and the law directs. An appeal shall lie from a judgment upon a plea of guilty to a misdemeanor after waiver of grand jury investigation and jury trial, but only as to the sentence imposed.(2) Upon Plea of Not Guilty. If the plea is not guilty, the magistrate shall set the case for a preliminary examination within ten days if the defendant remains in custody and within thirty days if released under applicable law, unless the preliminary examination is expressly waived in writing, in which case the magistrate may then bind the defendant over to the grand jury. If the defendant offers to waive in writing the right to a grand jury investigation and a trial by jury and submit the judgment in the case to the jurisdiction of the general sessions court, and the district attorney general does not object, the magistrate may after such written waiver hear the case upon the plea of not guilty and enter such verdict and judgment as the evidence warrants and the law directs, including any fine or jail sentence prescribed by law for such misdemeanor. The State shall have no appeal from a judgment of acquittal. The defendant may appeal a guilty judgment or the sentence imposed, or both, to the circuit or criminal court for a trial de novo as provided by law.(d) Felonies. If the offense charged is a felony, the defendant shall not be called upon to plead. The magistrate shall inform the defendant of:(1) the charge and the contents of the affidavit of complaint,

(2) the right to counsel,(3) the right to appointed counsel if indigent,(4) the right to remain silent and give no statement,(5) the fact that any statement given voluntarily may be used against the defendant,(6) the general circumstances under which the defendant may obtain pretrial release, and(7) the right to a preliminary examination.If the defendant waives preliminary examination, the magistrate shall forthwith bind the defendant over to the grand jury. If the defendant does not waive preliminary examination, the magistrate shall set a preliminary examination within ten days if the defendant remains in custody, and within thirty days if released under applicable law.(e) Indictment Before Preliminary Examination. Any defendant arrested prior to indictment or presentment for any offense, whether misdemeanor or felony, except small offenses, shall be entitled to a preliminary hearing upon the defendant's request therefor, whether the grand jury of the county be in session or not.If the defendant is indicted during the period of time in which the preliminary hearing is being continued, or at any time before accused has been afforded a preliminary hearing on a warrant, whether at the defendant's own request or that of the prosecutor, the defendant may dismiss the indictment upon motion to the court. Provided, however, that no such Motion to Dismiss shall be granted after the expiration of thirty days from the date of the defendant's arrest.(f) The presence of the defendant at the initial appearance shall be governed by the provisions of Rule 43 of the Tennessee Rules of Criminal Procedure.

RULE 5.1 PRELIMINARY EXAMINATION(a) Probable Cause Finding. If from the evidence it appears that an offense has been committed and that there is probable cause to believe that the defendant committed it, the magistrate shall forthwith bind the defendant over to the grand jury and either release the defendant pursuant to applicable law or commit the defendant to jail by a written order. The finding that an offense has been committed and that there is probable cause to believe that the defendant committed it shall be based upon evidence which may not be inadmissible hearsay except documentary proof of ownership and written reports of expert witnesses. The defendant may cross-examine witnesses against him or her and may introduce evidence. Rules excluding evidence from consideration by the magistrate on the ground that it was acquired by unlawful means are applicable. The evidence of the witnesses is not required to be reduced to writing by the magistrate, or under the magistrate's direction, and signed by the respective witnesses; but the proceedings shall be preserved by electronic recording or its equivalent and when the defendant is subsequently indicted such recording shall be made available for listening to by the defendant or defendant's counsel to the end that they may be apprised of the evidence introduced upon the preliminary examination.(b) Discharge of Defendant. If it does not appear from the evidence that an offense has been committed and that there is probable cause for believing the defendant committed it, the magistrate shall discharge the defendant. The discharge of the defendant shall not preclude the State from instituting a subsequent prosecution for the same offense.(c) Records. After concluding the proceeding the magistrate shall transmit forthwith to the clerk of the criminal court all papers and records in the proceedings in those cases wherein probable cause is found. Where probable cause is not found, the records and papers will be returned to the clerk of the general sessions court.

RULE 8. JOINDER OF OFFENSES AND DEFENDANTS(a) Mandatory Joinder of Offenses. Two or more offenses shall be joined in the same indictment, presentment, or information, with each offense stated in a separate count, or consolidated pursuant to Rule 13 if the offenses are based upon the same conduct or arise from the same criminal episode and if such offenses are known to the appropriate prosecuting official at the time of the return of the indictment(s), presentment(s), or information(s) and if they are within the jurisdiction of a single court. A defendant shall not be subject to separate trials for multiple offenses falling within this subsection unless they are severed pursuant to Rule 14.(b) Permissive Joinder of Offenses. Two or more offenses may be joined in the same indictment, presentment, or information, with each offense stated in a separate count, or consolidated pursuant to Rule 13 if the offenses constitute parts of a common scheme or plan or if they are of the same or similar character.(c) Joinder of Defendants. Two or more defendants may be joined in the same indictment, presentment, or information:(1) if each of the defendants is charged with accountability for each offense included; or(2) if each of the defendants is charged with conspiracy, and some of the defendants are also charged with one or more offenses alleged to be in furtherance of the conspiracy; or(3) even if conspiracy is not charged and all of the defendants are not charged in each count if the several offenses charged:(i) were part of a common scheme or plan; or(ii) were so closely connected in respect to time, place, and occasion that it would be difficult to separate proof of one charge from proof of the others.

RULE 13. CONSOLIDATION OR SEVERANCEConsolidation. The court may order consolidation of two or more indictments, presentments, or informations for trial if the offenses and all defendants could have been joined in a single indictment, presentment, or information pursuant to Rule 8.Severance. The court may order a severance of offenses or defendants before trial if a severance could be obtained on motion of a defendant or of the State pursuant to Rule 14.

RULE 14. SEVERANCE OF OFFENSES AND DEFENDANTS(a) Timeliness of Motion; Waiver; Double Jeopardy. A defendant's motion for severance of offenses or defendants must be made before trial, except that a motion for severance may be made before or at the close of all evidence if based upon a ground not previously known. Severance is waived if the motion is not made at the appropriate time. A Motion by the State for severance of counts or defendants may be granted only prior to trial, except by consent of the defendant. If a motion for severance is granted during the trial and if the motion was made or consented to by the defendant, the granting of the motion shall not bar a subsequent trial of that defendant on the offenses severed.(b) Severance of Offenses.(1) If two or more offenses have been joined or consolidated for trial pursuant to Rule 8(b), the defendant shall have a right to a severance of the offenses unless the offenses are part of a common scheme or plan and the evidence of one would be admissible upon the trial of the others.(2) If two or more offenses have been joined or consolidated for trial pursuant to Rule 8(a), the

court shall grant a severance of offenses in any of the following conditions:(i) if before trial on motion of the State or the defendant it is deemed appropriate to promote a fair determination of the defendant's guilt or innocence of each offense.(ii) if during trial with consent of the defendant it is deemed necessary to achieve a fair determination of the defendant's guilt or innocence of each offense. The court shall consider whether, in light of the number of offenses charged and the complexity of the evidence to be offered, the trier of fact will be able to distinguish the evidence and apply the law intelligently as to each offense.(iii) if the Court finds merit in both a motion by the district attorney general for a continuance based upon exigent circumstances that temporarily prevent the State from being ready for trial of the joined prosecutions and an objection by the defendant to the continuance based on a demand for speedy trial. If the Court grants a severance under this subdivision, it shall also grant a continuance of the prosecutions wherein the exigent circumstances exist.(c) Severance of Defendants.(1) If a defendant moves for a severance because an out-of-court statement of a codefendant makes reference to the defendant but is not admissible against the defendant, the court shall determine whether the State intends to offer the statement in evidence at trial. If so, the court shall require the prosecuting attorney to elect one of the following courses:(i) a joint trial at which the statement is not admitted into evidence or at which, if admitted, the statement would not constitute error; or(ii) a joint trial at which the statement is admitted into evidence only after all references to the moving defendant have been deleted, if, as deleted, the confession will not prejudice the moving defendant; or(iii) severance of the moving defendant.(2) The court, on motion of the State or on motion of the defendant other than under subdivision (c)(1), shall grant a severance of defendants if:(i) before trial, it is deemed necessary to protect a defendant's right to a speedy trial or it is deemed appropriate to promote a fair determination of the guilt or innocence of one or more defendants; or(ii) during trial, with consent of the defendant to be severed, it is deemed necessary to achieve a fair determination of the guilt or innocence of one or more defendants.(d) Failure to Prove Grounds for Joinder of Defendants. If a defendant moves for severance at the conclusion of the State's case or at the conclusion of all the evidence, and if there is not sufficient evidence to support the allegation upon which the moving defendant was joined for trial with the other defendant or defendants, and if, in view of this lack of evidence, severance is deemed necessary to achieve a fair determination of the moving defendant's guilt or innocence, the court shall grant a severance.

RULE 18. VENUE(a) Except as otherwise provided by statute or by these rules, offenses shall be prosecuted in the county where the offense was committed.(b) If one or more elements of an offense are committed in one county and one or more elements in another, the offense may be prosecuted in either county.(c) Offenses committed on the boundary of two (2) or more counties may be prosecuted in either county.(d) Offenses committed wholly or in part outside this state, under circumstances that give this

state jurisdiction to prosecute the offender, may be prosecuted in any county in which an element of the offense occurs, or in the case of an offense committed wholly outside this state in any county in which the offender is found.

RULE 21. CHANGE OF VENUE(a) In all criminal prosecutions the venue may be changed upon motion of the defendant, or upon the court's own motion with the consent of the defendant, if it appears to the court that, due to undue excitement against the defendant in the county where the offense was committed or any other cause, a fair trial probably could not be had.(b) A motion for change of venue shall be accompanied by affidavit(s) averring facts constituting the alleged undue excitement or other cause upon which the motion is based. The State may file counter-affidavits.(c) In a multi-county judicial circuit a change of venue shall be to the nearest county in the judicial circuit in which the prosecution is pending where the same cause for change of venue does not exist. If the same cause for change of venue exists in all other counties in the judicial circuit, the venue shall be changed to the nearest county where the same cause for change of venue does not exist.(d) In a single-county judicial circuit the venue shall be changed to the nearest county where the same cause for change of venue does not exist.(e) If in the opinion of the court there are two (2) or more adjoining counties, or counties about equidistant, to which the case might be removed under the provisions of this Rule, the court shall determine to what county the cause shall be removed.(f) If a change of venue is ordered, the clerk shall make out a full and complete transcript of the record and proceedings in the cause, and transmit the same, together with the indictment and all other papers on file, to the clerk of the receiving court, which transcript shall be entered on the minutes of the receiving court.(g) The sheriff of the county, if the defendant is in the sheriff's custody, shall, on the order of the court, transfer and deliver such defendant to the sheriff of the county to which the venue is changed, who shall receive and detain the defendant in custody until legally discharged.(h) The receiving court may release the defendant on bail or upon recognizance.(i) The receiving court shall take cognizance of the cause, and proceed therein to trial, judgment, and execution, in all respects as if the indictment had been found in that court.(j) The receiving court may also enforce the attendance of the prosecutor and witnesses, both on behalf of the state and of the defendant, by recognizance or undertaking of bail, as in other cases.(k) All fines and forfeitures in such cases go to the county in which the indictment was found, and judgment must be rendered accordingly. The fees of all jurors and witnesses, on being properly certified by the clerk of the receiving court, are a charge on the county in which the indictment was found, in like manner as if the trial had not been removed.

RULE 22. TIME OF MOTION FOR CHANGE OF VENUEA motion for change of venue under these rules shall be made at the earliest date after which the cause for the change of venue is said to have arisen.

RULE 16. DISCOVERY AND INSPECTION(a) Disclosure of Evidence by the State.(1) Information Subject to Disclosure.

(A) Statement of Defendant. Upon request of a defendant the State shall 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 State, the existence of which is known, or by the exercise of due diligence may become known, to the district attorney general; the substance of any oral statement which the State intends to offer in evidence at the trial made by the defendant whether before or after arrest in response to interrogations by any person then known to the defendant to be a law enforcement officer; and recorded testimony of the defendant before a grand jury which relates to the offense charged. Where the defendant is a corporation, limited liability company, limited liability partnership, partnership, association or labor union, the court may grant the defendant, upon its motion, discovery of relevant recorded testimony of any witness before a grand jury who (1) was, at the time of the testimony, so situated as an officer or employee as to have been able legally to bind the defendant in respect to conduct constituting the offense, or (2) was, at the time of the offense, personally involved in the alleged conduct constituting the offense and so situated as an officer or employee as to have been able legally to bind the defendant in respect to the alleged conduct in which the witness was involved. Upon a determination by the State to place co-defendants on trial jointly, the State shall promptly furnish each defendant who has moved for discovery under this subdivision with all information discoverable under this subdivision as to each co-defendant.(B) Defendant's Prior Record. Upon request of the defendant, the State shall furnish to the defendant such copy of the defendant's prior criminal record, if any, as is within the possession, custody or control of the State, the existence of which is known, or by the exercise of due diligence may become known, to the district attorney general.(C) Documents and Tangible Objects. Upon request of the defendant, the State 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 State, and which are material to the preparation of the defendant's defense or are intended for use by the State as evidence in chief at the trial, or were obtained from or belong to the defendant.(D) Reports of Examinations and Tests. Upon request of a defendant the State 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 State, the existence of which is known, or by the exercise of due diligence may become known, to the district attorney general and which are material to the preparation of the defense or are intended for use by the State as evidence in chief at the trial.(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 State documents made by the district attorney general or other State agents or law enforcement officers in connection with the investigation or prosecution of the case, or of statements made by State Witnesses or prospective State Witnesses.(3) Grand Jury Transcripts. Except as provided in Rule 6 and subdivision (a)(1)(A) of this rule, these rules do not relate to discovery or inspection of recorded proceedings of a grand jury.(4) Failure to Call Witness. The mere fact that a witness' name is on a list furnished under this rule shall not be grounds for comment upon a failure to call the witness.(b) Disclosure of Evidence by the Defendant.(1) Information Subject to Disclosure.(A) Documents 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 State, the defendant, on request of the State, shall permit the State to inspect and copy or photograph books, papers, documents, photographs, 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 as evidence in chief at the trial.(B) Reports of Examination and Tests. If the defendant requests disclosure under subdivision (a)(1)(C) or (D) of this rule, upon compliance with such request by the State, the defendant, on request of the State, shall permit the State 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 the witness's testimony.(2) Information Not Subject to Disclosure. Except as to scientific or medical reports, this subdivision does not authorize the discovery or inspection of reports, memoranda, or other internal defense documents made by the defendant, or the defendant's attorneys or agents in connection with the investigation or defense of the case, or of statements made by the defendant, or by State or defense witnesses, or by prospective State or defense witnesses, to the defendant, the defendant's agents or attorneys.(3) Failure to Call Witness. The mere fact that a witness' name is on a list furnished under this rule shall not be grounds for comment upon a failure to call a witness.(c) Continuing Duty to Disclose. 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, the party shall promptly notify the other party or the other party's attorney or the court of the existence of the additional evidence or material.(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 reviewing courts 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 may specify the time, place, and manner of making the discovery and inspection and may prescribe such terms and conditions as are just.(e) Alibi Witnesses. Discovery of alibi witnesses is governed by Rule 12.1.

RULE 17. SUBPOENA(a) For Attendance of Witnesses; Form; Issuance. Every subpoena shall be issued by the clerk or other authorized officer of the court. It shall state the name of the court and the title of the proceeding, and it shall command each person to whom it is directed to attend and give testimony at the time and place and for the party specified therein. The clerk or other authorized

officer shall issue a subpoena, or a subpoena for the production of documentary evidence, 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 the 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 state.(c) For Production of Documentary Evidence and of Objects. A subpoena may also command a person to whom it is directed to produce the books, papers, documents, or tangible things designated therein. The court, upon motion made promptly and in any event by the time specified in the subpoena for compliance therewith, may quash or modify the subpoena if compliance would be unreasonable or oppressive. The court may condition denial of the motion upon the advancement by the party in whose behalf the subpoena is issued of the reasonable cost of producing the books, papers, documents or tangible things. The court may direct that books, papers, documents or tangible things 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 them to be inspected by the parties and their attorneys.(d) Service. A subpoena may be served by any person authorized to serve process, or the witness may acknowledge service in writing on the subpoena. Service of the subpoena shall be made by delivering or offering to deliver a copy thereof to the person to whom it is directed or by leaving a copy thereof with an adult occupant of the person's usual place of residence.(e) Place of Service. A subpoena requiring the attendance of a witness at a hearing or trial may be served any place within the state.(f) For Taking Depositions; Place of Examination.(1) An order to take a deposition authorizes the issuance by the clerk of the court in which the proceeding is pending of subpoenas for the persons named or described therein.(2) A resident of the state may be required to give a deposition only in the county wherein the person resides or is employed or transacts the person's business in person or at such other convenient place as is fixed by the court. A non-resident of the state may be required to attend only in the county where the non-resident is served with subpoena or at such other place as is fixed by the court.(g) Contempt. Refusal by any person without adequate excuse to obey a subpoena served upon the person may be deemed a contempt of the court from which the subpoena issued.(h) Information Not Subject to Subpoena. Statements by witnesses or prospective witnesses may not be subpoenaed from the state or the defendant under this rule, but shall be subject to production only in accordance with the provisions of Rule 26.2.

RULE 17.1 PRETRIAL CONFERENCEAt any time after the filing of the indictment, presentment or information, the court upon motion of any party or upon its own motion may order one or more conferences to consider such matters as will promote a fair and expeditious trial and, to the extent feasible, will minimize the time that jurors are not directly involved in the trial or deliberations. At the conclusion of the conference, the court shall prepare and file a memorandum of the matters agreed upon. No admissions made by the defendant or the defendant's attorney at the conference shall be used against the defendant

unless the admissions are reduced to writing and signed by the defendant and the defendant's attorney. This rule shall not be invoked in the case of a defendant who is not represented by counsel.

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, limited liability company or limited liability partnership 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 the defendant of, and determine that he or she understands, the following:(1) the nature of the charge to which the plea is offered, the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law; and(2) if the defendant is not represented by an attorney, that he or she has the right to be represented by an attorney at every stage of the proceeding and, if necessary, one will be appointed; and(3) that the defendant has the right to plead not guilty or to persist in that plea if it has already been made, and the right to be tried by a jury and at that trial the right to the assistance of counsel, the right to confront and cross examine witnesses against him or her, and the right against compelled self-incrimination; and(4) that if the defendant pleads guilty or nolo contendere there will not be a further trial of any kind except as to sentence so that by pleading guilty or nolo contendere the defendant waives the right to a trial; and(5) that if the defendant pleads guilty or nolo contendere, the court may ask the defendant questions about the offense to which he or she has pleaded, and if the defendant answers these questions under oath, on the record, and in the presence of counsel, the answers may later be used against the defendant 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 district attorney general and the defendant or the defendant's attorney.(e) Plea Agreement Procedure.(1) In General. The district attorney general 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 related offense, the district attorney general will do any of the following:(A) move for dismissal of other charges; or(B) 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; or(C) agree that a specific sentence is the appropriate disposition of the case.

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. If the agreement is of the type specified in subdivision (e)(1)(A) or (C), the court may accept or reject the agreement pursuant to subdivision (e)(4), or may defer its decision as to the acceptance or rejection until there has been an opportunity to consider the presentence report. If the agreement is of the type specified in subdivision (e)(1)(B), the court shall advise the defendant that if the court does not accept the recommendation or request the defendant nevertheless has no right to withdraw the plea.(3) Acceptance of a Plea Agreement. If the court accepts the plea agreement, the court shall inform the defendant that it will embody in the judgment and sentence the disposition provided for in the plea agreement.(4) Rejection of a Plea Agreement. If the court rejects the plea agreement, the court shall, on the record, inform the parties of this fact, advise the defendant personally in open court or, on a showing of good cause, in camera, that the court is not bound by the plea agreement, afford the defendant the opportunity to then withdraw the plea, and advise the defendant that if he or she persists in the guilty plea or plea of nolo contendere the disposition of the case may be less favorable to the defendant than that contemplated by the plea agreement.(5) Time of Plea Agreement Procedure. Except for good cause shown, notification to the court of the existence of a plea agreement shall be given at the arraignment or at such other time, prior to trial, as may be fixed by the court.(6) Inadmissibility of Pleas, Offers of Pleas, and Related Statements. Except as otherwise provided in this paragraph, evidence of a plea of guilty, later withdrawn, or a plea of nolo contendere, or of an offer to plead guilty or nolo contendere to the crime charged or any other crime, or of statements made in connection with, and relevant to, any of the foregoing pleas or offers, is not admissible in any civil or criminal proceeding against the person who made the plea or offer. However, evidence of a statement made in connection with, and relevant to, a plea of guilty, later withdrawn, a plea of nolo contendere, or an offer to plead guilty or nolo contendere to the crime charged or any other crime, is admissible in a criminal proceeding for perjury or false statement if the statement was made by the defendant under oath, on the record, and in the presence of counsel.(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 including any plea agreement, and the inquiry into the accuracy of a guilty plea.

RULE 23. TRIAL BY JURY(a) Trial by Jury. In all criminal cases except small offenses, trial shall be by jury unless the defendant waives a jury trial in writing with the approval of the court and the consent of the district attorney general. The defendant may waive jury trial at any time before the jury is sworn.

RULE 24. TRIAL JURORS (a) Examination. The court shall cause the prospective jurors to be sworn or affirmed to answer truthfully the questions they will be asked during the selection process, identify the parties and their counsel, and briefly outline the nature of the case. At or near the beginning of jury selection, the court shall permit counsel to introduce himself or herself and make brief, non-argumentative remarks that inform the potential jurors of the general nature of the case. The court may put to the respective jurors appropriate questions regarding their qualifications to serve as jurors in the case and shall permit questioning by the parties for the purpose of discovering bases for challenge for cause and enabling an intelligent exercise of peremptory challenges. The court, upon motion of a party or on its own motion, may direct that any portion of the questioning of a prospective juror be conducted out of the presence of the tentatively selected jurors and other prospective jurors.(b) Challenges for Cause. If the trial judge, after examination of any juror, is of the opinion that grounds for challenge for cause are present, the judge shall excuse that juror from the trial of the case. After the trial judge has tentatively determined that the jury meets the prescribed qualifications, adversary counsel may conduct further examination and challenges for cause may be exercised alternately by counsel for the respective parties. Any party may challenge a prospective juror for cause if:(1) there exists any ground for challenge for cause provided by law;(2) the prospective juror's exposure to potentially prejudicial information makes the person unacceptable as a juror. Both the degree of exposure and the prospective juror's testimony as to his or her state of mind shall be considered in determining acceptability. A prospective juror who states that he or she will be unable to overcome preconceptions shall be subject to challenge for cause no matter how slight the exposure. If the prospective juror has seen or heard and remembers information that will be developed in the course of trial, or that may be inadmissible but is not so prejudicial as to create a substantial risk that his or her judgment will be affected, the prospective juror's acceptability shall depend on whether the testimony as to impartiality is believed. If the prospective juror admits to having formed an opinion, he or she shall be subject to challenge for cause unless the examination shows unequivocally that the prospective juror can be impartial.(c) Peremptory Challenge and Procedure for Exercising. After prospective jurors have been passed for cause, counsel will submit simultaneously and in writing, to the trial judge, the name of any juror in the group of the first twelve who have been seated that either counsel elects to challenge peremptorily. Upon each submission, each counsel shall submit either a challenge or a blank sheet of paper. Neither party shall make known the fact that the party has not challenged. Replacement jurors will be seated in the panel of twelve in the order of their selection. If necessary, additional replacement jurors will then be examined for cause and, after passed, counsel will again submit simultaneously, and in writing, to the trial judge the name of any juror in the group of twelve that counsel elects to challenge peremptorily. This procedure will be followed until a full jury has been selected and accepted by counsel. Peremptory challenges may be directed to any member of the jury, and counsel shall not be limited to replacement jurors. Alternate jurors will be selected in the same manner. The trial judge will keep a list of those challenged and, if the same juror is challenged by both parties, each will be charged with the challenge. The trial judge shall not disclose to any juror the identity of the party challenging the juror.(d) Number of Peremptory Challenges. If the offense charged is punishable by death, each

defendant is entitled to fifteen peremptory challenges, and the state is entitled to fifteen peremptory challenges for each defendant. If the offense charged is punishable by imprisonment for more than one year, each defendant is entitled to eight peremptory challenges, and the state is entitled to eight peremptory challenges for each defendant. If the offense charged is punishable by imprisonment for less than one year or by fine or both, each side is entitled to three peremptory challenges for each defendant.(e) Additional Jurors. The court may direct prior to the start of jury selection that one or more jurors in addition to the regular jury of twelve persons be called and impaneled. The additional jurors shall be drawn in the same manner, shall have the same qualifications, shall be subject to the same examination and challenges, shall take the same oath, and shall have the same functions, powers, facilities, and privileges as the regular jurors. For each additional juror to be selected, each side is entitled to one peremptory challenge for each defendant. Such additional peremptory challenges may be used against any regular or additional juror. The trial court in its discretion may use either of the following methods to select and impanel additional jurors:(1) During the jury selection or the trial of the case, there shall be no distinction made by the court as to which jurors are additional jurors and which jurors are regular jurors. Before the jury retires to consider its verdict, the court shall select by lot the names of the requisite number of jurors to reduce the jury to a body of twelve or such other number as the law provides. A juror who is not selected to be a member of the final jury shall be discharged when that jury retires to consider its verdict.(2) Following the selection of the jury of twelve regular jurors, the additional jurors shall be selected and impaneled as alternate jurors. Alternate jurors in the order in which they are called shall replace jurors who, prior to the time the jury retires to consider its verdict, become unable or disqualified to perform their duties. An alternate juror who does not replace a regular juror shall be discharged when the jury retires to consider its verdict.(f) Admonitions. The court shall give the prospective jurors appropriate admonitions regarding their conduct during the selection process. The Court shall also give the jurors, once they are sworn, appropriate admonitions regarding their conduct during the case. In each case these shall include admonitions:(1) not to communicate with other jurors or anyone else regarding any subject connected with the trial, nor to form or express any opinion thereon until the case is finally submitted to the jury;(2) to report promptly to the court any incident involving an attempt by any person improperly to influence any member of the jury or a violation by any juror of any of the court's admonitions; and(3) not to read, listen to, or view any news reports concerning the case. The court shall explain that the case must be decided solely and alone upon the evidence introduced upon the trial.(g) List of Prospective Jurors. Upon request the parties shall be furnished with a list of members of the jury panel, containing the following information with respect to each: name, address, occupation, name of spouse, occupation of spouse. The list shall also state whether each prospective juror has previously served on a criminal court jury; however, that information need not be provided prior to the day of trial.

RULE 24.1 JUROR INFORMATION(a) Notetaking. Jurors shall be instructed that they may take notes during the trial. The court shall provide suitable materials for this purpose. Jurors shall have access to their notes during recesses and deliberations. After the jury has rendered a verdict, the notes shall be collected by

court personnel who shall destroy them promptly.(b) Notebooks. When the court deems it helpful in a particular case, jurors may be provided with notebooks to use in collecting and organizing appropriate materials, including such items as jury instructions, copies of exhibits, and the juror's own notes. Counsel should be apprised of this procedure and invited to prepare exhibits and other materials in a way that facilitates their inclusion in the jurors' notebooks. At the end of the trial, the notebooks should be collected by court personnel and their contents destroyed, unless the court instructs to the contrary.(c) Juror Questions of Witnesses. In the court's discretion, a juror desiring to propound a question to a witness may be permitted to do so. The juror must put the question in written form and submit it to the judge through a court officer at the end of a witness' testimony. The judge shall review all such questions and, outside the hearing of the jury, shall consult the parties about whether the question should be propounded. The judge, in his or her discretion, may ask the juror's question in whole or part and may change the wording of the juror's question before propounding it to the witness. The judge may permit counsel to ask the question in its original or amended form in whole or part, in the judge's discretion. When juror questions are permitted, early in the trial jurors shall be instructed about the mechanics of asking a question. In addition, the jurors shall be instructed to give no meaning to the fact that the judge chose not to ask a question or altered the wording of a question submitted by a juror. A juror's question shall be anonymous, so that the juror's name is not included in the question. All jurors' questions, whether approved or disapproved by the court, shall be retained for the record.

RULE 25. DISABILITY OF JUDGE(a) During Trial. If by reason of death, sickness or other disability the judge before whom a jury trial has commenced is unable to proceed with the trial, any other judge regularly sitting in or who may be assigned to the court, upon certifying that he or she has become familiar with the record of the trial, may proceed with and finish the trial.(b) After Verdict of Guilt. If by reason of absence, death, sickness or other disability the judge before whom the defendant has been tried is unable to perform the duties to be performed by the court after a verdict of guilt, any other judge regularly sitting in or who may be assigned to the court may perform those duties. If the successor judge is satisfied that he or she cannot perform those duties because he or she did not preside at the trial or for any other reason, the successor judge may exercise the discretion to grant a new trial.

RULES 26 AND 26.1 [RESERVED]

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 trial court, on motion of a party who did not call the witness, shall order the attorney for the state or the defendant and the defendant's attorney, as the case may be, to produce, for the examination and use of the 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 had 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 the defendant's objection shall be preserved by the attorney for the state, and, in the event of a conviction and an appeal by the defendant, shall be made available to the appellate court for the purpose of determining the correctness of the decision to excise the portion of the statement.(d) Recess for Examination of Statement. Upon delivery of the statement to the moving party, the court, upon application of that 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 state who elects not to comply, shall declare a mistrial if required by the interest of justice.(f) Production of Statements at Pretrial Hearing. Except as herein provided, this rule shall apply at a hearing before the trial court on a motion under Rule 12(b).(g) 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 the witness; 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 26.3 ORDER OF EXPERT TESTIMONYIn trials involving conflicting expert testimony and with the consent of all parties, courts may reorder the ordinary proof process to increase the likelihood that jurors will be able to comprehend and evaluate expert testimony.

RULE 27. [RESERVED]

RULE 28. INTERPRETERSThe court may appoint an interpreter of its own selection and may fix the reasonable compensation of such interpreter. Such compensation shall be taxed as costs.

RULE 29. MOTION FOR JUDGMENT OF ACQUITTAL(a) Motion Before Submission to Jury. Motions for directed verdict are abolished and motions for judgment of acquittal shall be used in their place. 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 indictment or information after the evidence on 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 close of the evidence offered by the State is not granted, the defendant may offer evidence without having reserved the right.(b) Reservation of Decision on Motion. If a motion for judgment of acquittal is made at the close of all the evidence, the court may reserve decision on the motion, submit the case to the jury and decide the motion either before the jury returns a verdict or after it returns a verdict of guilty or is discharged without having returned a verdict.

(c) Motion After Discharge of Jury. If the jury returns a verdict of guilty or is discharged without having returned a verdict, a motion for judgment of acquittal may be made or renewed within 30 days of the date the order of sentence is entered or within such further time as the court may fix during the 30-day period. If the jury is discharged without having returned a verdict the 30-day period shall begin to run from the date the jury is discharged. If a verdict of guilty is returned the court may on such motion, set aside the verdict and after disposing of a motion for a new trial enter judgment of acquittal. The State shall have the right of appeal where the Court sets aside a verdict of guilty and enters a judgment of acquittal.

RULE 29.1 JURY ARGUMENT(a) Opening of Argument: Waiver. At the close of the evidence the State shall have the right to open the argument to the trier of facts. If the State desires that all argument be waived, it may offer to waive argument, and if the defendant agrees then no argument will be made. The State may not waive opening argument unless all argument is waived. After the State's opening argument the defendant may waive argument, in which event the State is not permitted further argument.(b) Scope of Argument. The State's opening argument shall cover the entire scope of the State's theory, and the State's closing argument shall be limited to the subject matter covered in the State's opening argument and the defendant's intervening argument. Defendant's argument is not limited to the matters actually argued by the State but may address any relevant and proper subject.(c) Number and Order of Arguments. The number of arguments permitted on behalf of the State beyond opening and closing, and the number in excess of one permitted each defendant, as well as the order and length of arguments shall be in the sound discretion of the trial judge, who shall allow adequate but not excessive time for the full presentation of the theory of the case and shall so control the order of argument that if more than two arguments are made for the State no defendant is deprived of the opportunity to answer a new argument made by the State against that defendant.(d) Purpose of Rule. It is the purpose of this rule to assure that all argument be waived only upon the consent of both sides; that the defendant shall be permitted to waive all remaining argument after the State opens; and that while the State, having the burden of proof, shall have the right to open and close the argument, this right shall not be exercised in such way as to deprive the defendant of the opportunity to fully answer all State argument. The trial judge upon motion shall enforce this purpose by appropriate rulings.

RULE 29.2 INTERIM COMMENTARYDuring the course of the trial, the court may permit counsel to address the jury in order to assist jurors in understanding the evidence that has been presented or will be presented. The trial court may place reasonable time limits on such statements and shall permit all counsel to respond to the remarks of any one lawyer.

RULE 30. INSTRUCTIONS(a) Special Requests. At the close of the evidence or at such earlier time during the trial as the court reasonably directs, any party may file written requests that the court instruct the jury on the law as set forth in the requests. At the same time copies of such requests shall be furnished to adversary counsel. The court shall inform counsel of its proposed action upon the requests, and

any other portion of the instructions concerning which inquiries are made, prior to their arguments to the jury. The court may, in its discretion, entertain requests for instructions at any time before the jury retires to consider its verdict.(b) Objections. After the judge has instructed the jury, the parties shall be given opportunity to object, out of hearing of the jury, to the content of an instruction given or to the failure to give a requested instruction, but failure to make objection shall not prejudice the right of a party to assign the basis of the objection as error in support of a motion for a new trial.(c) Character, Use, and Disposition of Instructions. In the trial of all felonies except where pleas of guilty have been entered, every word of the judge's instructions shall be reduced to writing before being given to the jury. The written charge shall be read to the jury, and the jury shall take it to the jury room when it retires to consider its verdict. The jury shall have possession of the written charge during its deliberations; and after the jury's deliberations have been concluded, the written charge shall be returned to the judge and filed with the record, but need not be copied into the minutes.(d) Timing of Jury Instructions.(1) At beginning of trial. Immediately after the jury is sworn, the court shall instruct the jury concerning its duties, its conduct, the order of proceedings, the general nature of the case, and the elementary legal principles that will govern the proceeding.(2) Before and After Closing Argument. Jury instructions on the applicable law may be given before or after closing argument, in the court's discretion. All or part of such instructions given before closing argument may be repeated after closing argument. Additional instructions concerning organizational and related matters also may be given after closing argument.

RULE 30.1 JURY EXAMINATION OF EXHIBITS [FN*]Upon retiring to consider its verdict, the jury shall take to the jury room all exhibits and writings which have been received in evidence, except depositions, for their examination during deliberations, unless the court for good cause, determines that an exhibit should not be taken to the jury room.

RULE 31. VERDICT(a) Return. The verdict shall be unanimous. The jury shall return it to the judge in open court.(b) Several Defendants. If there are two or more defendants, the jury at any time during its deliberations may return a verdict or verdicts with respect to a defendant or defendants as to whom it has agreed; if the jury cannot agree with respect to all, the defendant or defendants as to whom it does not agree may be tried again.(c) Conviction of Less Offense. The defendant may be found guilty of an offense necessarily included in the offense charged or of an attempt to commit either the offense charged or an offense necessarily included therein if the attempt is an offense.(d) Poll of Jury. When a verdict is returned and before it is recorded the jury shall be polled at the request of any party or upon the court's own motion. If upon the poll, there is not unanimous concurrence the jury may be directed to retire for further deliberations or may be discharged.