FSM SUPREME COURT

Rule 1. Scope. These rules govern the procedure in all criminal proceedings in the trial division of the Supreme Court of the Federated States of Micronesia; and, whenever specifically provided in one of the rules, at proceedings before state judicial officers.

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

Annotations: The Rules of Criminal Procedure were designed to avoid technicalities and gamesmanship in criminal pleading. They are to be construed to secure simplicity in procedure. Convictions should not be reversed, nor informations thrown out, because of minor, technical objections which do not prejudice the accused. Laion v. FSM, 1 FSM Intrm. 503, 518 (App. 1984).

(a) Issuance. If it appears 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 request of the attorney for the government, a 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.

(1) Warrant. The warrant shall be signed by a judicial officer and 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. It shall describe the offense charged in the complaint. It shall command that the defendant be arrested and brought before a judicial officer.

(1) By Whom. The warrant shall be executed by a police officer or by some other officer authorized by law or, when the judicial officer 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.

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

(a) Upon Complaint. An officer making an arrest under a warrant issued upon a complaint or any person making an arrest without a warrant shall take the arrested person without unnecessary delay before the nearest available justice of the FSM Supreme Court or, in the event that a justice of the FSM Supreme Court is not reasonably available, before a state judicial officer authorized by the laws of the Federated States of Micronesia. If a person arrested without a warrant is brought before a judicial officer, 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) Upon Information. After an information has been filed pursuant to Rule 7, a hearing shall be held before the nearest available justice of the FSM Supreme Court or, in the event that a justice of the FSM Supreme Court is not available, before a state judicial officer authorized by the laws of the Federated States of Micronesia.

(c) Notification of Rights. When a person, arrested with or without a warrant or given a summons, appears initially before a judicial officer pursuant to subsections (a) or (b) of this rule, the person may be required to plead, at the discretion of the judicial officer. The judicial officer shall read or summarize to the defendant the complaint or information and any affidavit filed therewith. The judicial officer shall inform the defendant of the defendant's right to retain counsel, or to request the assignment of counsel if the defendant is unable to obtain counsel, and of the general circumstances under which the defendant may secure pretrial release. The judicial officer shall inform the defendant that the defendant is not required to make a statement and that any statement made by the defendant may be used against the defendant. The judicial officer shall allow the defendant reasonable time and opportunity to consult counsel and shall detain or conditionally release the defendant as provided by statute or in these rules.

(d) Initial Appearance Before a State Judicial Officer. If a justice of the FSM Supreme Court is not reasonably available under Rule 5(a), the arrested person shall be brought before a state judicial officer authorized by the laws of the Federated States of Micronesia, and such officer shall inform the person of the rights specified in Rule 5(c) and may authorize the detention or conditional release of the arrested person under the terms provided for in these rules. The state judicial officer shall immediately transmit any written order of release or of confinement and any papers filed concerning the case to the clerk of the FSM Supreme Court within the state. Upon the release of the defendant the state judicial officer shall order the defendant to appear at the next sitting of the FSM Supreme Court in the state.

(1) In General. The information shall be a plain, concise and definite written statement of the essential facts constituting the offense charged. It shall be signed by the attorney for the government. It need not contain a formal commencement, a formal conclusion or any other matter not necessary to such statement. Allegations made in one count may be incorporated by reference in another count. It may be alleged in a single count that the means by which the defendant committed the offense are unknown or that he committed it by one or more specified means. The information shall state for each count the citation of the statute, rule, regulation or other provision of law which the defendant is alleged to have violated.

(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 the initial appearance or within ten days after the initial appearance 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.

Annotations: It is sufficient that an information set forth the offense in the words of the statute itself, when the information sufficiently apprises the defendant of the charges against which he must be prepared to defend and is sufficiently detailed to enable the defendant to plead this case as a bar to future prosecutions for the same offense. Laion v. FSM, 1 FSM Intrm. 503, 516-17 (App. 1984)

Rule 7 does not require the information to specifically plead the general principles of responsibility in the National Criminal Code, such as aiding and abetting, which do not themselves enunciate substantive offenses. Engichy v. FSM, 1 FSM Intrm. 532, 542 (App. 1984)

No person may be convicted of liability for the crimes of another unless the information specifically alleges that the defendant aided and abetted and that said information provides specific acts constituting the means of aiding and abetting so as to afford the defendant adequate notice to prepare his defense. 11 F.S.M.C. 301(4) (1987 Supp.).

(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 the same or similar character or are based on the same act or transaction or on two or more acts 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.

(a) Issuance. Upon the request of the attorney for the government the court shall issue a warrant for each defendant named in an information supported by a showing of probable cause under oath as is required by Rule 4(a). Upon the request of the attorney for the government a summons instead of a warrant shall issue. If no request is made, the court may issue either a warrant or a summons in its discretion. More than one warrant or summons may issue for the same defendant. The clerk shall deliver the warrant or summons to the police officer or other person authorized by law to execute or serve it. If a defendant fails to appear in response to the summons, a warrant shall issue.

(1) Warrant. The form of the warrant shall be as provided in Rule 4(c) (1) except that it shall be signed by the clerk, it shall describe the offense charged in the information and it shall command that the defendant be arrested and brought before the court. The amount of bail may be fixed by the court and endorsed on the warrant.

(1) Execution or Service. The warrant shall be executed or the summons served as provided in Rule 4(d)(1), (2), and (3). A summons to a corporation shall be served by delivering a copy to an officer or to a managing or general agent or to any other agent authorized by appointment or by law to receive service of process and, if the agent is one authorized by statute to receive service and the statute so requires, by also mailing a copy to the corporation's last known address within the Federated States of Micronesia or at its principal place of business. The officer executing the warrant shall bring the arrested person promptly before the court.

(2) Return. The officer executing a warrant shall make return thereof to the court. At the request of the attorney for the government any unexecuted warrant shall be returned and canceled. On or before the return day the person to whom a summons was delivered for service shall make return thereof. At the request of the attorney for the government made at any time while the information is pending, a warrant returned unexecuted and not canceled or a summons returned unserved or a duplicate thereof may be delivered by the clerk to the police officer or other authorized person for execution or service.

(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.

(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 a trial and at that trial has the right to the assistance of counsel, the right to confront and cross-examine witnesses, and the right against compelled self-incrimination; and

(5) that upon a plea of guilty or nolo contendere, the court may ask questions about the offense, and if the defendant answers these questions under oath, on 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.

(1) In General. The prosecutor and counsel for the defendant, or the defendant when acting pro se, may enter into plea agreements that, upon the entering of a plea of guilty or nolo contendere to a charged offense or to an included or related offense, the prosecutor will take certain actions or adopt certain positions, including the dismissal of other charges and the recommending or not opposing of specific sentences or dispositions on the charge to which a plea was entered. The court shall not participate in discussions leading to such plea agreements nor be bound thereby.

(3) Notice of Agreement to Victims. The government shall notify any victim(s) of the crime(s) charged of any proposed plea agreement, and obtain the comments of the victim, prior to tendering the agreement to the court. Absent a showing of good cause, the court may reject any proposed plea agreement submitted without compliance with this requirement.

(f) 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.

Annotations: The plea bargaining process contemplates that plea agreements will be submitted to the trial judge for acceptance or rejection, and the court's judicial comments on the documents cannot customarily be used as a basis for disqualification. FSM v. Skilling, 1 FSM Intrm. 464, 481 (Kos. 1984).

(a) Pleadings and Motions. Pleadings in criminal proceedings shall be the information and the pleas of not guilty, guilty and nolo contendere. No other pleas, demurrers or motions to quash shall be allowed, and any defenses and objections raised before trial shall be raised only by motion to dismiss or to grant appropriate relief, as provided in these rules.

(b) Pretrial 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) At the Discretion of the Government. At the initial appearance or as soon thereafter as is 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 this rule.

(2) At the Request of the Defendant. At the initial appearance or as soon thereafter as is 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 findings on the record.

(f) Effect of Failure to Raise Defenses or Objections. Failure by a party to raise defenses of 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.

(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 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 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 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.

(a) When Taken. Whenever due to exceptional circumstances of the case it is in the interest of justice that the testimony of a prospective witness of a 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. If a witness is committed for failure to give bail to appear to testify at a trial or hearing, the court on written motion of the witness and upon notice to the parties may direct that the witness' deposition be taken. After the deposition has been subscribed the court may discharge the witness.

(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 the defendant 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, but the defendant's failure, absent good cause shown, to appear after notice and tender of expenses in accordance with subdivision (c) of this rule shall constitute a waiver of that right and of any objection to the taking and use of the deposition based upon that right.

(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 the defendant's 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 that defendant's 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 defendant's 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, a part or all of a deposition, so far as otherwise admissible 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 FSM Rules of Evidence, or the witness gives testimony at the trial or hearing inconsistent with that witness' 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 a party, an adverse party may require that party to offer all of it which is relevant to the part offered and any party may offer other parts.

Annotations: The burden of showing whether "exceptional circumstances" under Rule 15(a) exist is upon the defendant; what must be shown is that the witness would be material and that such testimony would be for the benefit of the moving party or in some other way in the interest of justice. Wolfe v. FSM, 2 FSM Intrm. 115, 122 (App. 1985).

(A) Statement of Defendant. Upon request of a defendant the government 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 government, the existence of which is known, 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 or 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 known, 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 the defendant's 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 a 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 the witness' relevant written or recorded statement, and the record of any felony convictions of such proposed witness.

(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.

(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 government, the defendant, on request of the government, shall permit the government 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 Examinations and Tests. If the defendant requests disclosure under subdivision (a)(1)(C) or (D) of this rule, upon compliance with such request of the government, the defendant 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 that witness' 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 government or defense witnesses, to the defendant or agents or attorneys of the defense.

(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, or discovers additional witnesses or defenses, such party shall promptly notify the other party or that other party's attorney or the court of the existence of the additional evidence, material, witness or defense.

(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 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.

Note that Rule 16 contemplates discovery requests and responses directly by and to the parties; no motion to the court is necessary. Thus, neither discovery requests nor responses under Rule 16 should be filed with the court except to the extent necessary to enable the court to perform its regulatory role under Rule 16(d).

(a) For Attendance of Witnesses; Form; Issuance. A subpoena shall be issued by the clerk of the court under the seal of the FSM Supreme 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 give testimony at the time and place specified therein. The clerk shall issue a subpoena, signed and with the seal of the FSM Supreme Court, 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 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. 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 police officer 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 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 Federated States of Micronesia, or any governmental officer or agency charged with the responsibility of enforcing the criminal laws of the national government of the Federated States of Micronesia. At or before the time stated for appearance in the 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.

(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.

Comment: This rule requires that a reasonable attempt should be made to supplement the mere writing with additional explanation, because of the multiplicity of languages in Micronesia and the greater likelihood here than in the United States that one served with a subpoena will be unable to read the words of the document.

Rule 17.1. Pretrial 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 matters 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 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 18. Place of Prosecution and Trial. Except as otherwise permitted by statute or by these rules, the prosecution shall be in the state in which the offense was committed. The court shall fix the place of trial within the state with due regard to the convenience of the defendant and the witnesses and the prompt administration of justice.

(a) Information Pending. A defendant arrested, held, or present in a state other than that in which an information is pending against that defendant may state in writing a wish to plead guilty or nolo contendere, to waive trial in the state in which the information is pending, and to consent to disposition of the case in the state in which he was arrested, held, or present, subject to the approval of the attorneys for the government in each state. Upon receipt of the defendant's statement and of the written approval of the attorneys for the government, the FSM Supreme Court clerk in the state in which the information is pending shall transmit the papers in the proceeding or certified copies thereof to the clerk of this court for the state in which the defendant is arrested, held, or present, and the prosecution shall continue in that state.

(b) Information Not Pending. A defendant arrested, held, or present in a state other than the state in which a complaint against the defendant is pending may state in writing a wish to plead guilty or nolo contendere, to waive trial in the state in which the warrant was issued, and to consent to disposition of the case in the state in which the defendant was arrested, held, or present subject to the approval of the attorneys for the government for each state. Upon receipt of the defendant's statement and of the written approval of the attorneys for the government and upon filing of an information, the clerk of this court in the state in which the warrant was issued shall transmit the papers in the proceeding or certified copies thereof to the clerk of this court for the state in which the defendant was arrested, held, or present, and the prosecution shall continue in that state.

(c) Effect of Not Guilty Plea. If after the proceeding has been transferred pursuant to subdivision (a) or (b) of this rule the defendant pleads not guilty, the clerk shall return the papers to the court in which the prosecution was commenced, and the proceeding shall be restored to the docket of that court. The defendant's statement of a wish to plead guilty or nolo contendere shall not be used against the defendant.

Rule 21. Transfer of Cases for Trial. For the convenience of parties and witnesses, and in the interest of justice, the court upon motion of the defendant may transfer the proceeding to another state. When a transfer is ordered the clerk shall transmit to the FSM Supreme Court clerk in the state to which the proceeding is transferred all papers in the proceedings or duplicates thereof and any bail taken, and the prosecution shall continue in that state.

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

Annotations: While Rule 23 does not require specific findings of fact and conclusions of law unless requested by a party, some explanation by the trial court of the legal reasoning and grounds for deciding factual issues is highly desirable if not essential, not only because an explanation may help the defendant and other citizens understand and accept the decision but also to assist the appellate court in reviewing the decision. Joker v. FSM, 2 FSM Intrm. 38, 47 (App. 1985).

Rule 25. Justice, Disability After Finding of Guilt. 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 a justice who did not preside at the trial cannot perform those duties or that it is appropriate for any other reason, such other justice may exercise the discretion to grant a new trial.

Rule 26.1. Determination of Foreign Law. A party who intends to raise an issue concerning the law of a foreign country shall give 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.

(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 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 then in their possession that relates to the subject matter concerning which the witness has testified.

(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 the defendant's 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 to the appellate court for the purpose of determining the correctness of the decision to excise the portion of the statement.

(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 by the interest of justice.

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

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

Annotations: The proper question in a Rule 29 motion is whether there is such evidence that reasonable persons could find guilt beyond a reasonable doubt; it is not a requirement that the evidence compel, but only that it is capable of or sufficient to persuade a finder of fact to reach a verdict of guilt by the requisite standard. Andohn v. FSM, 1 FSM Intrm. 433, 442 (App. 1984).

Annotations: Jurisdiction over a particular crime places in the trial division of the FSM Supreme Court the necessary authority to find the defendant guilty of any offense necessarily included in the offense charged. Runmar v. FSM, 3 FSM Intrm. 308, 316 (App. 1988)

The general rule of criminal procedure is that jurisdiction over a particular crime places in the trial division the necessary authority to find the defendant guilty of any offense necessarily included in the offense charged. Kosrae v. Tosie, 4 FSM Intrm. 61, 63 (Kos. 1989).

(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 if the defendant wishes to make a statement in the defendant's 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 the 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 appeal 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. 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.

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

(A) At least 72 hours before imposing sentence the court shall upon request permit the defendant, or counsel if the defendant is represented, to read the report of the presentence investigation, 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 of 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 the defendant's counsel an opportunity to comment on the presentence report and, at the discretion of the court, to introduce testimony or other information relating to any alleged factual inaccuracy contained in it.

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

(D) If the comments of the defendant and his counsel or testimony or other information introduced by them allege any factual inaccuracy in the presentence investigation report or the summary of the report or part thereof, the court shall, as to each matter controverted, make (i) a finding as to the allegation, or (ii) a determination that no such finding is necessary because the matter controverted will not be taken into account in sentencing.

(E) Any copies of the presentence investigation report made available to the defendant or the defendant's 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.

(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 the plea.

(1) Preliminary Hearing. Whenever a probationer is held in custody on the ground that the person has violated a condition of probation or supervised release, the person shall be afforded a prompt hearing before a judicial officer in order to determine whether there is probable cause to hold the person for a revocation hearing. The probationer shall be given:

The proceedings shall be recorded stenographically or by an electronic recording device. If probable cause is found to exist, the person shall be held for a revocation hearing. The person may be released pursuant to Rule 46(c) pending the revocation hearing. If probable cause is not found to exist, the proceeding shall be dismissed.

(c) Confinement by Justice Ombudsman. Any justice ombudsman of the Federated States of Micronesia Supreme Court is empowered to require confinement of any person subject to probation or supervised release, or other court-imposed restrictions or conditions, upon presentation of such person to the jailer by the justice ombudsman, and execution of a written statement by the justice ombudsman that the justice ombudsman:

(3) will file a copy of his written statement with the clerk's office of the Supreme Court of the Federated States of Micronesia and will notify a justice of this court as soon as reasonably possible but in any event within sixty (60) hours of the time of confinement.

Rule 33. New Trial. The court on motion of a defendant may grant a new trial to that defendant if required in the interests of justice. The court on motion of a defendant for a new trial may vacate the judgment if entered, take additional testimony and direct the entry of a new judgment. 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 seven days after the finding of guilt or within such further time as the court may fix during the seven 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 seven days after the finding of guilt, or after plea of guilty or nolo contendere, or with such further time as the court may fix during the seven-day period.

(b) Reduction of Sentence. The court may reduce a sentence 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 judgment or dismissal of the appeal, or within 120 days after entry of any order or judgment of the FSM Supreme Court denying review of, or having the effect of upholding, a judgment of conviction. Changing a sentence from a sentence of incarceration to a grant of probation shall constitute a permissible reduction of sentence under this subdivision. The court may also reduce a sentence as provided by statute.

(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 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 the appeal.

(3) Fines, Costs and Restitution. A sentence to pay a fine, restitution or costs, if an appeal is taken, may be stayed by the trial court or by the Appellate Division 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, restitution or costs in the registry of the trial 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.

(a) Appearance Before Judicial Officer. A person arrested in a state other than that in which the offense is alleged to have been committed, shall be taken without unnecessary delay before the nearest available justice of the Supreme Court or, in the event that a justice of the Supreme Court is not reasonably available, before a state judicial officer authorized to act on behalf of the FSM Supreme Court pursuant to the laws of the Federated States of Micronesia. The initial appearance shall be conducted in accordance with Rule 5. The person shall be held to answer upon a finding that such person is the person named in the information or warrant. If the defendant is held to answer, he shall be held to answer in the state in which the prosecution is pending, provided that a warrant is issued in that state if the arrest was made without a warrant, upon production of the warrant or a certified copy thereof.

(d) Arrest of Probationer or Supervised Releasee. A person arrested for a violation of probation or supervised release in a state other than the state of that person's supervision shall be taken without unnecessary delay before the nearest available justice of the Supreme Court or, in the event that a justice of the Supreme Court is not reasonably available, before a state judicial officer authorized to act on behalf of the FSM Supreme Court pursuant to the laws of the Federated States of Micronesia. The judicial officer shall:

(3) otherwise order the person held to answer in the state having supervision upon production of certified copies of the judgment or order of probation or supervised release, the warrant, and the application for he warrant, and upon a finding that this is the person named in the warrant.

(e) Arrest for Failure to Appear. If a person is arrested on a warrant in a state other than that in which the warrant was issued, and the warrant was issued because of the failure of the person named therein to appear as required pursuant to a subpoena or the terms of his release, the person arrested shall be taken without unnecessary delay before the nearest available justice of the Supreme Court or, in the event that a justice of the Supreme Court is not reasonably available, before a state judicial officer authorized to act on behalf of the FSM Supreme Court pursuant to the laws of the Federated States of Micronesia. Upon production of the warrant or a certified copy thereof and upon a finding that this is the person named in the warrant, the judicial officer shall hold the person to answer in the state in which the warrant was issued.

(f) Release or Detention. If a person was previously detained or conditionally released in another state where a warrant or information issued, the judicial officer shall take into account the decision previously made and the reasons set forth therefor, if any, but will not be bound by that decision. If the judicial officer amends the release or detention decision or alters the conditions of release, the judicial officer shall set forth the reasons therefor in writing.

(b) Property or Persons Which May be Seized With a Warrant. A warrant may be issue 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 issue, or who is unlawfully restrained.

(1) Warrant Upon Affidavit. A warrant shall issue only on affidavit(s) sworn to before an FSM Supreme Court clerk or a judicial officer and establishing that grounds for the application exist or that there is probable cause to believe that they exist. The judicial officer shall issue a warrant identifying the property or person 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 the affiant may produce, provided that such proceeding shall be taken down by a court reporter or recording equipment and made a part of the record underlying the application for warrant. The warrant shall be directed to a police officer. It shall command the police officer to search, within a specified period of time not to exceed ten days, the person or place named for the property or person 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.

(A) General Rule. At times when no judicial official is available within a State upon specific written or oral authorization by a justice of the Supreme Court, this court's clerk of courts or justice ombudsman in that State may issue a warrant based upon papers filed with the Federated States of Micronesia Supreme Court and satisfying all other requirements of this Rule 41, the contents of which are communicated by telephone or by other appropriate means to the authorizing justice. The following procedures shall be employed.

(B) Application. The person who is requesting a warrant shall file with this court in the state where no judicial officer is then available documents which that person believes satisfy all requirements of Rule 41, together with documents showing unavailability of a judicial officer in the state. This court's clerk of court or justice ombudsman in that state shall then administer the oath for the affidavit(s) submitted to establish the grounds for the application. Application for the warrant may then be made by use of either of the following methods:

(1) Telephone. Upon request of the person asking for the warrant, the clerk of court or justice ombudsman shall promptly place a call to a justice of the Supreme Court and the documents shall be read verbatim to the justice. This may be done in the presence of the person making application, and that person may participate in the telephone conversation, but the clerk of court or justice ombudsman must remain physically present throughout the telephone conversation and shall verify the accuracy of the reading of the documents.

(2) Submission of Documents. A full duplicate original set of the documents may be forwarded to the justice with written certification by the clerk of courts or justice ombudsman that the papers submitted are true and complete copies of the original documents filed with the court.

(C) Authorization. If the justice is satisfied that grounds for the application exist or that there is probable cause to believe that they exist, he shall authorize the clerk of courts or justice ombudsman to issue a warrant identifying the property or person to be seized, naming or describing the place to be searched, and indicating the period during which the warrant will remain in effect. Before signing the warrant, the clerk of courts or justice ombudsman shall read the warrant to the justice. If the warrant is satisfactory, the justice may authorize the clerk or the justice ombudsman to sign it, whereupon the authorized person shall immediately sign the original warrant, and duplicate copy thereof and enter on the face of both documents the time when the warrant was ordered to be issued and the name of the authorizing justice.

(d) Execution and Returns With Inventory. The police officer taking property under the warrant shall give to the person from 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 police officer. 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 Return of Property. A person aggrieved by an unlawful search and seizure or by the deprivation of property may move the court for the return of the property on the ground that such person is entitled to lawful possession of the property. The court shall receive evidence on any issue of fact necessary to the decision of the motion. If the motion is granted the property shall be returned to the movant, although reasonable conditions may be imposed to protect access and use of the property in subsequent proceedings. If a 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.

(g) Return of Papers to Clerk. The justice 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 the FSM Supreme Court in the state.

(a) Summary Disposition. A criminal contempt may be punished summarily if the justice directly saw or heard the conduct constituting the contempt and so certifies, 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, describing 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 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 charged 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 or except as required by the rule of necessity. Upon a finding of guilt the court shall enter an order fixing the punishment.

(a) Presence of Defendant Required. The defendant shall be present at the initial appearance, at the time of the plea, if any, 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 of Defendant 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 the right to be present whenever a defendant voluntarily absent has been informed by the court of the obligation to remain during the trial.

(2) In prosecutions for offenses punishable by fine or by the imprisonment for not more than one year or both, the court, with the written consent of the defendant, may permit initial appearance, plea, trial and the imposition of sentence in the defendant's absence.

(d) Presence of Parents, Guardians or Supervisors. In any case where the defendant is 22 years of age or younger, counsel for the defense is responsible for identifying the parents or other person(s) with primary supervisory responsibility for that accused, and assuring the presence of such person(s) at all hearings in the case. At the discretion of the trial court, any hearing after the initial appearance may be postponed for noncompliance with this requirement, and other sanctions may be applied.

(e) Presence of Victims. The government shall be responsible for notifying any victim(s) of crimes charged of the hearing dates and that the victim should feel free to attend all proceedings. At the discretion of the trial court, hearings may be postponed in those instances where the victim has not been so notified in advance.

(c) Joint Representation. Whenever two or more defendants have been jointly charged pursuant to Rule 8(b), or have been joined for trial pursuant to Rule 13, and are represented by the same retained or assigned counsel or by retained or assigned counsel who are associated in the practice of law, the court shall promptly inquire with 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 each defendant's right to counsel.

(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, in which event the period runs until the end of the next day which is not a Saturday, a Sunday, or a legal holiday. When a period of time prescribed or allowed is less than eleven 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, Federated States of Micronesia Constitution Day (May 10), Independence Day (November 3), Christmas Day, and any other day appointed as a holiday by the President or the Congress of the Federated States of Micronesia.

(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, 34, and 35, except to the extent and under the conditions stated in them.

(d) For Motions. A written motion, other than 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.

Unless the court otherwise directs, the party opposing the motion shall not later than ten days after the service of the motion upon such party, 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 of non-opposition to 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 such party and the notice or other paper is served upon that party by mail, six days shall be added to the prescribed period.

(1) Any person charged with an offense shall, at the initial appearance before a judicial officer be ordered released pending trial on his personal recognizance or upon the execution of an unsecured appearance bond in an amount specified by the judicial officer, unless the officer determines, in the exercise of discretion, that such a release will not reasonably assure the appearance of the person as required, or the protection of the victim or the community from danger of physical violence posed by the defendant. When such a determination is made, the judicial officer shall, either in lieu of or in addition to the above methods of release, impose the first of the following conditions which will reasonably assure the appearance of the person for trial and the safety of the victim and the community or, if no single condition gives that assurance, any combination of the following conditions:

(E) after a hearing on the matter, order detention of the person. The hearing shall be held at the initial appearance unless that person, or the attorney for the government, seeks a continuance. Except for good cause, a continuance may not exceed three days. During a continuance, the person shall be detained. At the hearing, the person shall be afforded an opportunity to testify, to present witnesses and cross-examine witnesses who appear, and to present any other information. The facts the judicial officer uses to support a finding that no condition or combination of conditions short of detention will reasonably assure the safety of any other person or the community, or the presence of the defendant at further proceedings, shall be supported by clear and convincing evidence. The hearing may be reopened after a determination by the judicial officer, if the judicial officer finds that information exists that was not known at the time of the hearing and that has a material bearing on the issue whether there are conditions of release that will reasonably assure the appearance of the person as required and the safety of any other person and the community.

(2) In determining which conditions of release will reasonably assure appearance and safety, the judicial officer 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 residence in the community and record of convictions, and the accused's record of appearance at court proceedings or of flight to avoid prosecution or failure to appear at court proceedings.

(3) A judicial officer 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 release and shall advise that a warrant for the person's arrest will be issued immediately upon any such violation.

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

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

(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 that person's presence by subpoena, a judicial officer shall impose conditions of release pursuant to Rule 46(a)(1) through (6) above. No material witness shall be detained because of inability to comply with any condition of release if the testimony of such witness can adequately be secured by deposition, and if further detention is not necessary to prevent a failure of justice. Release may be delayed for a reasonable period of time until the deposition of the witness can be taken 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 that person's presence during the trial or to prevent conduct that would obstruct the orderly and expeditious progress of the trial.

(c) Pending Sentence and Notice of Appeal. A person who has been convicted of an offense and is either awaiting sentence or has filed an appeal shall be treated in accordance with the provisions of Rule 46(a)(1) through (6) above unless the court or judge has reason to believe that no one or more 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.

(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 that surety proposes to justify and the encumbrances thereon, the number and amount of other bonds and undertakings for bail entered into and remaining undischarged, and all the surety's other liabilities. No bond shall be approved unless the surety thereon appears to be qualified.

(3) Enforcement. When a forfeiture has not been set aside, the court shall on motion enter a judgment of a default and execution may issue thereon. By entering into a bond the obligors submit to the jurisdiction of the court and irrevocably appoint the 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, or if no specific address is known to general delivery at the post office in the state where the obligor is known to reside.

(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.

Annotations: The object of Rule 46(a)(2) is to assure the presence of the defendant at trial so that justice may be done while keeping in mind the presumption of innocence and permitting the defendant the maximum amount of pre-trial freedom. The court should attempt to weigh the various forces likely to motivate a defendant to stay and face trial, against those forces likely to impel him to leave. FSM v. Jonas, 1 FSM Intrm. 231a, 233 (Pon. 1982).

Rule 46(a)(1) requires that, in determining the possibility of release prior to trial, the court should release the defendant on the defendant's own recognizance unless the court determines that such a release will not reasonably assure the presence of the defendant at future proceedings. Id. at 235.

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 state the grounds upon which it is made and shall set forth the relief or 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.

Annotations: While the prosecution has broad discretion in determining whether to initiate litigation, once that litigation is instituted in court, the court also has responsibility for assuring that actions thereafter taken are in the public interest; therefore criminal litigation can be dismissed only by obtaining leave of the court. FSM v. Ocean Pearl, 3 FSM Intrm. 87, 91 (Pon.1987).

(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 personally 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 the initial appearance the clerk shall mail a notice thereof to each party, or shall have each party served with a notice. 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. Papers shall be filed in the manner provided in civil actions. Unless otherwise ordered by the court, parties must file with the court an original and one copy of all documents filed with the court pursuant to these rules.

Rule 51. Exceptions Unnecessary. Exceptions to rulings or orders of the court are unnecessary. It is sufficient that a party, at the time the ruling or order of the court is made or sought, makes known to the court the action which the party desires the court to take or the objection to the action of the court and the grounds therefor; but if a party has no opportunity to object to a ruling or order, the absence of an objection does not thereafter prejudice that party.

"Justice of the Supreme Court" means the Chief Justice of the Supreme Court, an associate justice of the Supreme Court, or a judge or justice serving under special assignment given by the Chief Justice of the Supreme Court pursuant to Article XI, Section 9(b) of the Constitution of the Federated States of Micronesia, but only for the particular case or period of time for which the assignment has been made.

Rule 55. Records. The clerk and assistant clerks of the Supreme 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 or judgment shall show 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.

Rule 59. Effective Date. The Rules of Criminal Procedure originally took effect on July 11, 1981. They govern all criminal proceedings thereafter commenced. This edition of the rules includes all amendments adopted before April 25, 1990. For subsequent amendments, refer to the General Court Orders of the FSM Supreme Court. As far as just and practicable any amendments to these rules shall govern all proceedings pending when the amendments are adopted.