(1) Crime and delinquency are complex social problems requiring the attention and efforts of the criminal justice system, and the people of American Samoa.

(2) The function of the criminal justice system must be coordinated more efficiently and effectively.

(3) Training, records, evaluation, technical assistance and public education must be encouraged and focused on the improvement of the criminal justice system and the generation of new methods for the prevention and reduction of crime and delinquency.

History: 1978, PL 15-107 § 1.

46.0102 Creation-Composition-Staffing.

(a) There is within the executive branch the American Samoa Criminal Justice Planning Board which is under the jurisdiction of the Governor.

(b) The Board consists of 14 members appointed by the Governor. Members are selected from among residents of the Territory who are representative of the criminal justice system, including but not limited to: police agencies; the judiciary, prosecutorial and defense counsel; adult correctional and rehabilitative agencies, and juvenile justice agencies; elected officials; local government; public or private agencies related to the criminal justice system; and private citizens; and in compliance with the Omnibus Crime Control and Safe Streets Act of 1968, as amended, the Juvenile Justice and Delinquency Prevention Act of 1974, as amended, and other applicable federal acts. The chairman is selected by the Board from among its members. Members serve without compensation or other emoluments.

(c) Members shall serve for a 2-year term and may be reappointed; provided, that of the members first appointed, one-half serve a 2-year term and one-half serve a one-year term; and provided further, that the terms of those members who serve by virtue of the office they hold shall be concurrent with their service in the office from which they derive their membership.

(d) Should any member cease to be an officer or employee of the unit or agency he is appointed to represent, his membership on the board shall terminate immediately and a new member shall be appointed in the same manner as his predecessor to fill the unexpired term. Other vacancies occurring, except those by the expiration of a term, shall be filled for the balance of the unexpired term in the same manner as the original appointment within 30 days of the vacancy.

(e) The Governor appoints a Director, who serves at the pleasure of the Governor. Other staff personnel are employed in accordance with the career service and other applicable Territorial laws and regulations. The Director may contract for consulting services as may be necessary and authorized to carry out the purposes of this chapter.

History: 1978, PL 15-107 § 2.

46.0103 Meetings-Quorum-Committees-Rules.

(a) The Board shall meet quarterly, and at other times designated by the chairman.

(b) 7 members constitute a quorum.

(d) All meetings of the Board at which public business is discussed or final action is taken are open to the public.

(e) The Board shall adopt rules which govern its operations provided they are in accordance with 4.1001 et seq.

History: 1978, PL 15-107 § 3.

46.0104 Powers and duties.

The Board shall:

(1) serve as the Territorial Planning Agency under the Omnibus Crime Control and Safe Streets Act of 1968 and the Juvenile Justice and Delinquency Prevention Act of 1974 as amended, and other related federal acts;

(2) advise and assist the Governor in developing policies, plans, programs, and budgets for improving the coordination, administration and effectiveness of the criminal justice system in the Territory;

(3) prepare a Territorial Comprehensive Criminal Justice Plan on behalf of the Governor;

(4) establish goals, priorities, and standards for the reduction of crime and improvement of the administration of justice in the Territory;

(5) recommend legislation to the Governor and Legislature in the criminal justice field;

(6) monitor and evaluate programs and projects aimed at reducing crime and delinquency and improving the administration of justice;

(7) cooperate with and provide technical assistance to public and private agencies relating to the criminal justice system;

(8) apply for, contract for, receive, and expend for its purposes any appropriations or grant for the Territory, the Federal Government, or any other source public or private, in accordance with the appropriations process;

(9) have the authority to collect from any governmental entity information, data, reports, statistics, or other material which is necessary to carry out the board’s functions; and

(10) perform other duties as may be necessary to carry out the purposes of this chapter.

History: 1978, PL 15-107 § 4.

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Chapter 02

LAW ENFORCEMENT

Sections:

46.0201 Appointment of officers.

46.0202 Security guards-Appointment and powers.

46.0203 Firearms.

46.0201 Appointment of officers.

The Commissioner of Public Safety shall appoint deputy law enforcement officers as the exigencies of the public service may require. Persons appointed and commissioned under this section they shall have and may exercise all of the powers and authority of a police officer.

History: 1979, PL 16-18 § 1.

46.0202 Security guards-Appointment and powers.

Employees of the airport manager engaged as security guards, upon specific authorization and direction of the Commissioner, shall have all of the powers of police officers, including the power of arrest; provided, that such powers shall remain in force and effect only while the security guards are in actual performance of their duties as security guards.

History: 1979, PL 16-18 § 2.

46.0203 Firearms.

(a) A law enforcement officer to whom a firearm has been issued in accordance with the provisions of 46.4233 is required to have the firearm so issued in his possession while on duty.

(b) For the purposes of this act “law enforcement officer” means a member of the police force of the Territory.

(c) The Commissioner of Public Safety shall establish a training and certification program for the use of arms and other police weapons by the Territory’s law enforcement officers before issuance of these arms and weapons to the law enforcement officers. The Commissioner must submit in writing his training and certification program to the Governor for approval.

History: 1981, PL 17-30 § 1.

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Chapter 03

(RESERVED)

Chapter 04

(RESERVED)

Chapter 05

GENERAL PROVISIONS

Sections:

46.0501 Conformance with Federal Rules of Criminal Procedure.

46.0502 Rights of defendants.

46.0501 Conformance with Federal Rules of Criminal Procedure.

Except as otherwise provided in this Code, or by rules adopted by the Chief Justice, the criminal procedure in the High Court and in the District Courts shall conform as nearly as may be practical to the Federal Rules of Criminal Procedure.

History: 1962, PL 7-36; 1969, PL 11-54.

Case Notes:

Rule 7(e), Federal Rules of Criminal Procedure, violated because amended information charged defendant with additional offenses not charged in original information. Rule 48(a) should have been followed. Government v. Utu, ASR (1977).

Rule 31(c), Federal Rules of Criminal Procedure, conviction of necessarily included offense, is available under this section. Means impossible to commit greater without first having committed lesser. Verdict may be returned without a specific request for such. Government v. Maleko, ASR (1976).

Criminal procedure in courts of American Samoa shall conform as nearly as may be practical to Federal Rules of Criminal Procedure. RCAS 3.0606. Fanene v. Government. 4 ASR 957 (1968).

Statute explicitly recognizing power of Chief Justice to make exceptions to rules is clearly not inconsistent with constitutional provision for judicial independence. Rev'd Const. Am. Samoa Art. III § 2; A.S.C.A. § 46.0501. American Samoa Government v. Tile, 8 A.S.R.2d 120 (1988).

Reasonable legislative regulation of judicial procedure does not necessarily conflict with judicial independence. Rev'd Const. Am. Samoa Art. III § 2; A.S.C.A. § 46.0501. American Samoa Government v. Tile, 8 A.S.R.2d 120 (1988).

The Chief Justice's rulemaking authority under A.S.C.A. § 46.0501 does not include the power to amend unambiguous legislative enactments setting out the prerequisites to appeal. Fa'amaoni v. American Samoa Government, 20 A.S.R.2d 127 (1992).

46.0502 Rights of defendants.

Every defendant in a criminal case before a Court of American Samoa is entitled to:

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

(2) consult counsel before trial and to have a representative of his own choosing assist him in his defense at the trial;

(3) apply to the Court for further time to prepare his defense, which the Court shall grant if it is satisfied that the defendant will otherwise be substantially prejudiced in his defense;

(4) bring with him to the trial such material witnesses as he may desire or to have them summoned by the Court at his request;

(5) give evidence on his own behalf at his own request at the trial, although he may not be compelled to do so. If he fails to so testify, such failure shall not be construed as evidence against him; but if he does so testify, he may be cross-examined like other witnesses.

(6) be exempt from testifying against himself;

(7) appeal;

(8) a speedy, public and oral trial.

History: 1962, PL 7-36; 1972, PL 12-40 § 1.

Case Notes:

As officers of the court, members of the bar may be appointed, without compensation if necessary, as counsel to insure that indigent criminal defendants receive legal representation. Rev. Const. Am. Samoa Art. I, § 6; A.S.C.A. §§ 46.0502(2), 46.1001. American Samoa Government v. Wilson, 23 A.S.R.2d 159 (1993).

Right to effective assistance of counsel applies in American Samoa. Am. Samoa Rev. Const. Art I, § 6; A.S.C.A. §§ 46.0502, 46.1001. Suisala v. Moaali'itele, 6 A.S.R.2d 15 (1987).

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Chapter 06

JURISDICTION AND VENUE

Sections:

46.0601 Adjournment to hold session elsewhere.

46.0602 Transfer of case.

46.0601 Adjournment to hold session elsewhere.

In any case where the interest of justice or the convenience of parties, witnesses or the Court requires, the Chief Justice or the Associate Justice may order that a session of any division of the High Court adjourn from the Court House to sit at any appropriate place in American Samoa.

History: 1969, PL 11-54.

46.0602 Transfer of case.

Any case brought in the High Court or in a district court may, in the interest of justice and for the convenience of the parties and witnesses, be transferred by order of the Chief Justice or the Associate Justice to any court in which it might have been brought originally.

History: 1962, PL 7-36; 1966, PL 9-40.

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Chapter 07

SEARCH AND SEIZURE (RESERVED)

Chapter 08

WARRANT AND ARREST

Sections:

46.0801 Warrant required.

46.0802 Examination of complainant-Affidavit.

46.0803 Warrant of arrest and commitment-Issuance.

46.0804 Warrant of arrest and commitment-Form.

46.0805 Authority to arrest without warrant when.

46.0806 Arrest without warrant by private person.

46.0807 Arrest without warrant-Affidavit and application for warrant.

46.0801 Warrant required.

Except as provided in 46.0805 and 46.0806, no arrest may be made except upon warrant, duly issued in accordance with the provisions of this chapter.

History: 1963, PL 8-3.

Case Notes:

Reflecting the common-law rules, the exceptions to American Samoa's arrest-warrant requirement include arrests of felony suspects near a crime scene shortly after a crime's commission, arrests for misdemeanors and felonies committed in an officer's presence, and arrests based on "reasonable grounds" that a felony or breach of the peace has been committed. U.S. Const. Amend. IV; Rev. Const. Am. Samoa Art. I, § 5; A.S.C.A. §§ 46.0801 et seq. American Samoa Government v. Gotoloai, 23 A.S.R.2d 65 (1992).

The meaning of statutory provisions generally requiring an arrest warrant must be ascertained in light of the purpose of promoting efficient law enforcement, while protecting individual rights, and of the traditional and almost universal practice of warrantless arrests. U.S. Const. Amend. IV; Rev. Const. Am. Samoa Art. I, § 5; A.S.C.A. §§ 46.0801 et seq. American Samoa Government v. Gotoloai, 23 A.S.R.2d 65 (1992).

Arrests and searches are treated differently because "unreasonable search and arrest" provisions are concerned with restricting the use of general search warrants, not with prohibiting warrantless felony arrests; as such, warrantless arrests are permissible if supported by probable cause. U.S. Const. Amend. IV; Rev. Const. Am. Samoa Art. I, § 5; A.S.C.A. §§ 46.0801 et seq. American Samoa Government v. Gotoloai, 23 A.S.R.2d 65 (1992).

46.0802 Examination of complainant-Affidavit.

(a) When a complaint is laid before the Chief Justice, the Associate Justice or any associate judge, for the commission of a public offense triable in American Samoa, the justice or judge must examine the complainant under oath and take his affidavit in writing and cause it to be subscribed by him.

(b) The affidavit must set forth the facts stated by the complainant tending to establish the commission of the offense and the guilt of the defendant. If necessary, such affidavit may be made upon the information and belief of the affiant, provided the facts and the source of the information are stated in the affidavit.

History: 1962, PL 7-36.

46.0803 Warrant of arrest and commitment-Issuance.

If the Chief Justice, Associate Justice or other judge is satisfied from an affidavit that the offense complained of has been committed, and that there is reasonable ground to believe that the defendant has committed it, he shall issue a warrant of arrest and commitment in the case of felonies, and a summons in the case of misdemeanors; except that if it is made to appear in such affidavit that the safety of the defendant or the public so requires, the Chief Justice, Associate Justice or other judge shall issue a warrant of arrest and commitment in the case of misdemeanors.

History: 1962, PL 7-36.

46.0804 Warrant of arrest and commitment-Form.

(a) A warrant of arrest and commitment is an order in writing, in the name of the government, signed by the Chief Justice, Associate Justice or an Associate Judge, commanding the arrest of the defendant by the chief of police or any other police officer of American Samoa. The warrant must specify the offense charged and the name of the defendant. If the defendant’s name is unknown to the official issuing the warrant, the defendant may be designated therein by any name.

(b) The affidavit of the complainant or prosecutor shall be upon, or attached to, the warrant.

(c) If the offense is bailable, the warrant shall so provide, stating the amount of bail which may be posted, designating the particular court before which the defendant is to appear, and specifying that appearance is to be made at the next sitting of the court.

(d)The warrant may be in substantially the following form:

(e)

THE GOVERNMENT OF AMERICAN SAMOA WARRANT OF ARREST AND COMMITMENT

American Samoa

The Government of American Samoa to the Chief of Police or any other police officer of American Samoa:

Information on oath having been this day laid before me by________________, that the crime of________________ has been committed, and accusing_________________thereof, you are hereby commanded forthwith to arrest the above named___________________ , and to commit him to prison to answer said charge, unless he shall give bail in the sum of $____________, to appear at the next sitting of the_____________________ (Name of court).

Dated this____day of , 19—.
Signed:

Chief Justice of American Samoa

Associate Justice of American Samoa

Associate Judge of American Samoa

(Cross out two of above)

History: 1962, PL 7-36.

46.0805 Authority to arrest without a warrant when.

A police officer is authorized, and it is his duty, to make an arrest without a warrant, in the following cases:

(1) when a felony is committed in his presence;

(2) to prevent the commission of a felony;

(3) of persons found near the scene of a felony and suspected of committing it, where such suspicion is based on reasonable grounds and the arrest follows the crime by a short time;

(4) when a misdemeanor is committed in his presence;

(5) to prevent a breach of the peace when he has reasonable grounds to believe that a breach of the peace is about to be committed;

(6) of persons who obstruct justice by assaulting him or otherwise interfering with him while he is discharging his duty;

(7) of persons who are in danger of life or limb and whose arrest is necessary for their protection.

History: 1963, PL 8-3.

Case Notes:

Warrantless arrest for misdemeanor committed in officer’s presence must be made as soon thereafter as reasonably possible; failure to arrest during 15-hour interim removes case from "in presence" exception of paragraph (4) and arrest is invalid. Government v. Ponausuia. ASR (1976).

Generally, an arrest, whether with or without a warrant, must be supported by probable cause. Rev. Const. Am. Samoa Art. I, § 5; A.S.C.A. § 46.0805(3). American Samoa Gov't v. Luki, 21 A.S.R.2d 82 (1992).

A confession will be suppressed if the government fails to meet its burden of showing that probable cause for a warrantless arrest existed when it was made. Rev. Const. Am. Samoa Art. I, § 5; A.S.C.A. § 46.0805(3). American Samoa Gov't v. Luki, 21 A.S.R.2d 82 (1992).

46.0806 Arrest without warrant by private person.

Any person other than a police officer is authorized, and it is his duty, to make an arrest without a warrant when a felony is committed in his presence or to prevent the commission of a felony about to be committed in his presence.

History: 1963, PL 8-3.

46.0807 Arrest without warrant-Affidavit and application for warrant.

(a) Any police officer or other person making an arrest without a warrant in accordance with this chapter shall immediately thereafter make an affidavit and apply to the Chief Justice, Associate Justice or an Associate Judge of the High Court for a warrant of arrest and commitment of the person under arrest.

(b) Nothing in this section may be so construed as to prevent the detention for not to exceed 36 hours of any person lawfully arrested by a police officer when the arresting officer deems the same necessary for the safety of the person arrested or the public.

History: 1963, PL 8-3; 2002, PL 27-20.

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Chapter 09

CRIMINAL EXTRADITION

Sections:

46.0901 Short title.

46.0902 Interpretation.

46.0903 Definitions.

46.0904 Duty of Governor to arrest persons charged with crimes in other states.

46.0905 Surrender of persons charged with crime.

46.0906 Assistance in investigating demand for surrender.

46.0907 Demand for extradition-Form.

46.0908 Warrant for extradition-Contents.

46.0909 Governor to sign warrant of arrest when.

46.0910 Authority to arrest.

46.0911 Authority of arresting officer.

46.0912 Rights of arrested persons-Writ of habeas corpus-Penalty for denial of rights.

46.0913 Confinement of arrested persons.

46.0914 Warrant to apprehend person charged with crime.

46.0915 Lawful arrest-By officer or private citizen without a warrant.

46.0916 Commitment to jail required when.

46.0917 Admission to bail by bond.

46.0918 Discharge or recommitment.

46.0919 Failure to appear and surrender-Forfeit of bond.

46.0920 Effect of prosecution in territory prior to demand.

46.0921 Inquiry into guilt of accused.

46.0922 Recall and reissuance of warrants.

46.0923 Demand for person charged with crime in American Samoa-Warrant issued.

46.0924 Demand for person charged with crime in American Samoa-Written application-verification.

46.0925 Exemption of extradited persons from civil process.

46.0926 Trial of extradited person for other crimes.

46.0901 Short title.

This chapter may be cited as the Uniform Criminal Extradition Law.

History: 1965, PL 9-13.

46.0902 Interpretation.

This chapter shall be so interpreted and construed as to effectuate its general purpose to make uniform the law of those states which enact it.

History: 1965, PL 9-13.

46.0903 Definitions.

Where appearing in this chapter the following apply:

(a) “Executive authority” includes the Governor and any person performing the functions of Governor in any State or Territory other than this Territory.

(b) “Governor” includes any person performing the function of Governor by authority of the law of this Territory.

(c) “State” refers to any other State or Territory, organized or unorganized, of the United States of America other than the Territory of American Samoa.

History: 1965, PL 9-13.

46.0904 Duty of Governor to arrest persons charged with crimes in other states.

Subject to the qualifications of this chapter and the provisions of the Constitution of the United States controlling and acts of Congress in pursuance thereof, it is the duty of the Governor of this Territory to have arrested and delivered up to the United States Government authorities or executive authority of any other state of the United States Government any person charged in that state or by the United States Government with treason, felony or other crime, who has fled from justice and is found in this Territory.

History: 1965, PL 9-13; amd 1991 PL 22-15.

46.0905 Surrender of persons charged with crime.

The Governor of this Territory may also surrender on demand of the executive authority of any other State, any person in this Territory charged in such other state in the manner provided in 46.0909 with committing an act in this Territory or in a third state intentionally resulting in a crime in the state whose executive authority is making the demand: and the provisions of this chapter not otherwise inconsistent shall apply to such notwithstanding that the accused was not in that state at the time of the commission of the crime and has not fled therefrom.

History: 1965, PL 9-13.

46.0906 Assistance in investigating demand for surrender.

When a demand is made upon the Governor of this Territory by the executive authority of another state for the surrender of a person so charged with crime, the Governor may call upon the Attorney General or any prosecuting officer in this Territory to investigate or assist in investigating the demand and to report to him the situation and circumstances of the person so demanded and whether he ought to be surrendered.

History: 1965, PL 9-13.

46.0907 Demand for extradition-Form.

No demand for the extradition of a person charged with crime in another state may be recognized by the Governor unless it is in writing and is accompanied by a copy of an indictment found in the state having jurisdiction of the crime, or by an information supported by affidavit, or by a copy of an affidavit made before a magistrate there, together with a copy of any warrant which was issued thereon. The indictment, information or affidavit made before the magistrate must substantially charge the person demanded with having committed a crime under the laws of that state and the copy must be authenticated by the executive authority making the demand, which shall be prima facie evidence of its truth.

History: 1965, PL 9-13.

46.0908 Warrant for extradition-Contents.

A warrant of extradition may not be issued unless the documents presented by the executive authority making the demand show that:

(1) except in cases arising under 46.0905, the accused was present in the demanding state at the time of the commission of the alleged crime and thereafter fled from the state;

(2) the accused is now in this territory;

(3) the accused is lawfully charged, by indictment found, or by information filed by a prosecuting officer and supported by affidavit to the facts, or by affidavit made before a magistrate in that state, with having committed a crime under the laws of that state, or that he has been convicted of a crime in that state and has escaped from confinement or broken his parole.

History: 1965, PL 9-13.

46.0909 Governor to sign warrant of arrest when.

If the Governor decides that the demand should be complied with, he shall sign a warrant of arrest which shall be sealed with the Territorial seal and be directed to the Attorney General, Public Safety Commissioner, sheriff or other person whom he may think fit to entrust with the execution thereof. The warrant must substantially recite the facts necessary to the validity of its issue.

History: 1965, PL 9-13.

46.0910 Authority to arrest.

The warrant shall authorize the officer or other person to whom directed to arrest the accused at any place where he may be found within the Territory and to command the aid of all peace officers in the execution of the warrant, and to deliver the accused subject to the provisions of this law, to the duly authorized agent of the demanding state.

History: 1965, PL 9-13.

46.0911 Authority of arresting officer.

Every officer or other person empowered to make the arrest shall have the same authority, in arresting the accused, to command assistance therein, as the Attorney General, Public Safety Commissioner, the sheriff and other officers have by law in the execution of any criminal process directed to them, with the like penalties against those who refuse their assistance.

History: 1965, PL 9-13.

46.0912 Rights of arrested persons-Writ of habeas corpus-Penalty for denial of rights.

(a) No person arrested upon such warrant may be delivered over to the agent whom the executive authority demanding him has appointed to receive him unless he has been informed of the demand made for his surrender and of the crime with which he is charged and that he has the right to demand legal counsel.

(b) If the prisoner, his friends or counsel state that he or they desire to test the legality of the arrest, the prisoner shall be taken forthwith before the High Court of American Samoa in this Territory, who shall fix a reasonable time to be allowed him within which to apply for a writ of habeas corpus. When such writ is applied for, notice thereof, and of the time and place of hearing thereon, shall be given to the Attorney General of American Samoa and to the agent of the demanding state.

(c) An officer who delivers for extradition a person in his custody under the Governor’s warrant, in disobedience to this section, shall be guilty of a misdemeanor, and shall be fined not more than $1,000, or imprisoned not more than 6 months, or both.

History: 1965, PL 9-13.

46.0913 Confinement of arrested persons.

The officer or person executing the Governor’s warrant of arrest, or the agent of the demanding state to whom the prisoner may have been delivered, may, when necessary, confine the prisoner in the jail of the government, and the warden of such jail must receive and safely keep the prisoner until the person having charge of him is ready to proceed on his route, such person being chargeable with the expense of keeping.

History: 1965, PL 9-13.

46.0914 Warrant to apprehend person charged with crime.

Whenever any person within this territory is charged, on the oath of any credible person before any judge or magistrate of this Territory, with the commission of a crime in any other state and, except in cases arising under 46.0905, with having fled from justice, or whenever complaint has been made before the High Court of American Samoa setting forth on the affidavit of any credible person in another state that a crime has been committed in such other state and that the accused has been charged in such state with the commission of the crime and, except in cases arising under 46.0905, has fled therefrom and is believed to have been found in this territory, the judge or magistrate shall issue a warrant directed to the Attorney General, Public Safety Commissioner or sheriff directing him to apprehend the person charged wherever he may be found in this Territory and bring him before the High Court of American Samoa to answer the charge or complaint and affidavit. A certified copy of the sworn charge or complaint and affidavit upon which the warrant is issued shall be attached to the warrant.

History: 1965, PL 9-13.

46.0915 Lawful arrest-By officer or private citizen without warrant.

The arrest of a person may also be lawfully made by an officer or a private citizen without a warrant, upon reasonable information that the accused stands charged in the courts of another state with a crime punishable by death or imprisonment for a term exceeding 1 year; but when so arrested the accused must be taken before the High Court of American Samoa with all practicable speed and complaint must be against him under oath setting forth the ground for the arrest as in 46.0914, and thereafter, his answer shall be heard as if he had been arrested on a warrant.

History: 1965, PL 9-13.

46.0916 Commitment to jail required when.

If, from the examination before the High Court of American Samoa, it appears that the person held is the person charged with having committed the crime alleged, that he probably committed the crime and, except in cases arising under 46.0905, that he has fled from justice, the High Court of American Samoa must commit him to jail by a warrant reciting the accusation, for such a time specified in the warrant as will enable the arrest of the accused to be made under a warrant of the Governor on a requisition of the executive authority of the state having jurisdiction of the offense unless the accused gives bail as provided in this chapter, or until he is legally discharged.

History: 1965, PL 9-13.

46.0917 Admission to bail by bond.

Unless the offense with which the prisoner is charged is shown to be an offense punishable by death or life imprisonment under the laws of the state in which it was committed, the High Court of American Samoa must admit the person arrested to bail by bond or undertaking with sufficient sureties and in such sum as the court deems proper for his appearance before it at a time specified in such bond or undertaking, and for his surrender to be arrested upon the warrant of the Governor of this Territory.

History: 1965, PL 9-13.

46.0918 Discharge or recommitment.

If the accused is not arrested under warrant of the Governor by the expiration of the time specified in the warrant, bond or undertaking, the High Court of American Samoa may discharge him, or may recommit him to a further day, or may again take bail for his appearance and surrender. At the expiration of the second period of commitment, or if he has been bailed and appeared according to the terms of his bond or undertaking, the court may either discharge him or may require him to enter into a new bond or undertaking to appear and surrender himself at another day.

History: 1965, PL 9-13.

46.0919 Failure to appear and surrender-Forfeit of bond.

If the prisoner is admitted to bail and fails to appear and surrender himself according to the condition of his bond, the High Court by proper order shall declare the bond forfeited; and recovery may be had thereon in the name of the Territory as in the case of other bonds or undertakings given by the accused in criminal proceedings within this Territory.

History: 1965, PL 9-13.

46.0920 Effect of prosecution in territory prior to demand.

If a criminal prosecution has been instituted against an accused under the laws of this Territory and is still pending, the Governor, at his discretion, may either surrender him on the demand of the executive authority of another state or may hold him until he has been tried and discharged, or convicted and punished in this Territory.

History: 1965, PL 9-13.

46.0921 Inquiry into guilt of accused.

The guilt or innocence of the accused as to the crime of which he is charged may not be inquired into by the Governor, or in any proceeding, after the demand for extradition accompanied by a charge of crime in legal form as provided in this chapter has been presented to the Governor, except as it may be involved in identifying the person held as the person charged with the crime.

History: 1965, PL 9-13.

46.0922 Recall and reissuance of warrants.

The Governor may recall his warrant of arrest or may issue another warrant whenever he deems proper.

History: 1965, PL 9-13.

46.0923 Demand for person charged with crime in American Samoa-Warrant issued.

Whenever the Governor of this Territory demands a person charged with crime in this territory from the chief executive of any other state or from the chief judge of the Superior Court of the District of Columbia, he shall issue a warrant under the seal of this Territory to some agent commanding him to receive the person charged and convey him to the proper officer of the government.

History: 1965, PL 9-13.

46.0924 Demand for person charged with crime in American Samoa-Written application-Verification.

(a) When return to this Territory of a person charged with a crime in this Territory is required, the Attorney General or his assistant shall present to the Governor his written application for a requisition for the return of the person charged, in which application shall be stated the name of the person so charged, the crime charged against him and the approximate time, place and circumstances of its committal, the state in which he is believed to be, including the location of the accused therein at the time the application is made, and certifying that in the opinion of the Attorney General or his assistant the ends of justice require the arrest and return of the accused to this Territory for trial and that the proceeding is not instituted to enforce a private claim.

(b) The application shall be verified by affidavit, executed in duplicate, and accompanied by two certified copies of the information and affidavit filed with the High Court of American Samoa stating the offense with which the accused is charged. The Attorney General or his assistant may also attach such further affidavits and other documents in duplicate, as he shall deem proper to be submitted with such application.

(c) One copy of the application with the action of the Governor indicated by endorsement thereon, and one of the certified copies of the indictment or complaint or information and affidavit shall be filed in the office of the Secretary of American Samoa to remain of record in that office. The other copies of all papers shall be forwarded with the Governor’s requisition.

History: 1965, PL 9-13.

46.0925 Exemption of extradited persons from civil process.

A person brought into this Territory on extradition based on a criminal charge shall not be subject to service of personal process in civil actions arising out of the same facts as such criminal charge until he has been convicted in the criminal proceeding, or if acquitted, until he has had ample opportunity to return to the state from which he was extradited.

History: 1965, PL 9-13.

46.0926 Trial of extradited person for other crimes.

After a person has been brought back to this Territory upon extradition proceedings, he may be tried in this Territory for other crimes which he may be charged with having committed here as well as that specified in the requisition for his extradition.

History: 1965, PL 9-13.

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Chapter 10 RIGHT TO COUNSEL

Sections:

46.1001 Representation of indigent persons.

(a) The public defender shall represent as counsel, without charge, each indigent person who is under arrest for or charged with committing a felony, misdemeanor, immigration law, or traffic violation; and

(1) the defendant requests it; or

(2) the court, on its own motion or otherwise, so orders and the defendant does not affirmatively reject, of record, the opportunity to be represented by legal counsel in the proceeding.

(b) The public defender shall represent indigent persons charged in any court with crimes which constitute juveniles upon whom a delinquency petition is filed or who are in any way restrained by court order, process, or otherwise; persons held in any institution against their will by process or otherwise for the treatment of any disease or disorder or confined for the protection of the public; and those persons charged with violations of the traffic code; provided

(1) the indigent person, or his parent or legal guardian, in delinquency, requests it; or

(2) the court, on its own motion or otherwise, so orders, the defendant, or his parent or legal guardian.

History: 1962, PL 7-36; 1969, PL 11-54.

Case Notes:

Right to effective assistance of counsel applies in American Samoa. Am. Samoa Rev. Const. Art I, § 6; A.S.C.A. §§ 46.0502, 46.1001. Suisala v. Moaali'itele, 6 A.S.R.2d 15 (1987).

The bifurcated-proceedings statute divides the inquiry into whether the defendant "committed the criminal act charged" and whether he was "insane at the time of the commission of the criminal act." A.S.C.A. §§ 46.1301-46.1302. American Samoa Gov't v. Taylor, 19 A.S.R.2d 99 (1991).

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Chapter 11

APPEARANCE AND BAIL (RESERVED)

Chapter 12

PRELIMINARY EXAMINATION AND COMMENCEMENT OF ACTION

Sections:

46.1220 Prosecution of complaints.

46.1221 Summons.

46.1220 Prosecution of complaints.

All criminal prosecutions shall be brought in the name of the “Government of American Samoa”. The Attorney General shall prosecute all criminal cases before the High Court. The prosecution of misdemeanors may be initiated by complaint or by criminal information. The prosecution of felonies may be initiated only by criminal information.

History: 1962, PL 7-36; 1969, PL 11-54.

46.1221 Summons.

(a) When a complaint is laid before the Chief Justice, Associate Justice or an Associate Judge, of the commission of a public offense triable in American Samoa, the justice or judge may, in lieu of issuing a warrant of arrest and commitment, issue a summons commanding and directing the defendant to appear before a specified court at a time certain in the future to answer to the charge. The offense charged must be stated in the summons.

(b) If the defendant fails to appear before the court specified, in response to the summons, the justice or judge may issue a warrant of arrest and commitment in the manner provided in this title.

History: 1962, PL 7-36.

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Chapter 13

MENTAL COMPETENCY OF ACCUSED

Sections:

46.1301 Application of 46.1616 through 46.1626.

46.1302 Procedure on plea of not guilty.

46.1303 Motion for examination.

46.1304 Order for examination.

46.1305 Hearing to determine status.

46.1306 Presumptions-Evidence.

46.1307 Proceedings after sanity determination.

46.1308 Confinement.

46.1309 Treatment as outpatient.

46.1310 Jurisdiction of the High Court.

Research Guide: Following each section of this chapter appear the various codes, and their sections, upon which the criminal code was based. The following abbreviations apply:

ASC—American Samoa Code as of 13 December 1978.

MCC—Missouri Criminal Code, enacted as Senate Bill 60 in 1977, effective 1 January 1979.

MPC— Model Penal Code.

MPCC—Proposed Criminal Code for the State of Missouri prepared by the Committee to Draft a Modern Criminal Code, October 1973.

46.1301 Application of 46.1301 through 46.310.

Under 46.1301 through 46.l3l0 and 46.3216, the following persons are subject to confinement for mental incompetency or insanity in American Samoa:

(1) defendants found mentally incompetent to stand criminal trial; or

(2) defendants found insane at the time of the commission of a criminal act.

History: 1979, PL 16-43 § 2.

Case Notes:

In a bifurcated criminal trial, the jury is not exposed to evidence of the defendant's mental capacity until the jury makes an independent finding as to whether the defendant committed the act charged. A.S.C.A. §§ 46.1301-46.1302. American Samoa Gov't v. Taylor, 19 A.S.R.2d 99 (1991).

When a crime includes an intent element, a finding of guilt in the first part of a bifurcated trial also implicitly includes a finding that the defendant either had the requisite intent or would have had it but for the mental disease or defect. A.S.C.A. §§ 46.1301-46.1302. American Samoa Gov't v. Taylor, 19 A.S.R.2d 99 (1991).

Although a defense of diminished mental capacity is arguably comprehended within the "guilt" phase of a bifurcated trial, the interests in a fair trial and an orderly proceeding may be better served by reserving all evidence of mental disease or defect for the "insanity" phase because a jury is likely to view the evidence as being highly probative of issues other than the criminal defendant's mental state, and a limiting instruction would likely be ineffective. A.S.C.A. §§ 46.1301-46.1302. American Samoa Gov't v. Taylor, 19 A.S.R.2d 99 (1991).

During the first phase of a bifurcated criminal trial involving the defense of diminished mental capacity, the court limited the evidence to whether the defendant is or would be guilty, assuming the absence of any mental disease or defect such as would render him incapable of understanding the difference between right and wrong, incapable of conforming his conduct to such a standard, or otherwise incapable of having any requisite mental element of the crimes charged or of any lesser-included offenses. A.S.C.A. §§ 46.1301-46.1302. American Samoa Gov't v. Taylor, 19 A.S.R.2d 99 (1991).

During the first phase of a bifurcated criminal trial involving the defense of diminished mental capacity, though necessarily concerned with the defendant's thoughts relevant to the charged offenses, the court limited both parties from addressing such questions by expert testimony from psychiatrists or psychologists or by other evidence calculated to show that defendant did or not have a mental disease or defect. A.S.C.A. §§ 46.1301-46.1302, 46.1304. American Samoa Gov't v. Taylor, 19 A.S.R.2d 99 (1991).

During the "guilt" phase of a bifurcated criminal trial, the government may not make any use of statements made by the defendant to the government's expert witness or of any evidence discovered as a result of such statements that would not ultimately have been discovered had the statements not been made, unless the defendant put a fact at issue which could only be effectively addressed by the otherwise-inadmissible evidence and if required in the interest of justice. A.S.C.A. §§ 46.1301-46.1302, 46.1304. American Samoa Gov't v. Taylor, 19 A.S.R.2d 99 (1991).

If the defendant is found guilty of one or more crimes in the first phase of a bifurcated criminal trial involving the defense of diminished mental capacity, the trial will proceed to the second stage, during which the parties may present evidence on whether the defendant had a mental disease or defect which would either support an insanity defense or tend to negate the existence of any requisite mental elements of the crime or crimes. A.S.C.A. §§ 46.1301-46.1302. American Samoa Gov't v. Taylor, 19 A.S.R.2d 99 (1991).

During the second phase of a bifurcated criminal trial involving the defense of diminished mental capacity, the government may use evidence obtained during its expert's examination of the defendant or as a result of such evidence, including but not limited to statements made by the defendant to the expert. A.S.C.A. §§ 46.1301-46.1302, 46.1304. American Samoa Gov't v. Taylor, 19 A.S.R.2d 99 (1991).

Defense counsel's motion for a bifurcated criminal trial constituted an implicit waiver of any objection to a procedure which, although clearly consistent with the legislative purpose of the bifurcated-trial statute, is not clearly authorized regarding a defense of diminished mental capacity. A.S.C.A. §§ 46.1301-46.1302. American Samoa Gov't v. Taylor, 19 A.S.R.2d 99 (1991).

Research Guide: 15 ASC 7801.

46.1302 Procedure on plea of not guilty.

Where a defendant pleads not guilty to the commission of a criminal act, then, before the defendant is subject to confinement under subsection (2) of 46.1301, it must first be found that the defendant committed the criminal act charged.

History: 1979, PL 16-43 § 2.

Case Notes:

Research Guide: 15 ASC 7802.

46.1303 Motion for examination.

The court may order a mental examination of a defendant upon motion of the defendant or the government, or upon the court’s own motion, at any time before judgment.

History: 1979, PL 16-43 § 2.

Case Notes:

The Court may order a mental examination of a defendant. A.S.C.A. § 46.1303. American Samoa Government v. Taylor, 16 A.S.R.2d 44 (1991).

Research Guide: 15 ASC 7803.

46.1304 Order for examination.

(a) Upon the order of the court, a defendant undergoes a mental examination by a psychiatrist or other person medically or otherwise qualified to give an opinion of the defendant’s mental condition.

(b) Unless otherwise specified by the court, the scope of the examination pertains to whether:

(1) the defendant is mentally competent to stand trial; and

(2) the defendant was sane at the time of the commission of the criminal act charged.

History: 1979, PL 16-43 § 2.

Case Notes:

The testimony of the government's expert may, in some circumstances, include statements made to him by a criminal defendant during the compelled examination, although the witness may testify only about the alleged mental disease or defect and not about "guilt or innocence" (i.e., about whether the defendant would be guilty in the absence of any such disease or defect). A.S.C.A. § 46.1304. American Samoa Gov't v. Taylor, 19 A.S.R.2d 99 (1991).

A criminal defendant who puts his mental capacity at issue may be compelled to submit to an examination by the government's expert, who may testify about his observations and conclusions. A.S.C.A. § 46.1304. American Samoa Gov't v. Taylor, 19 A.S.R.2d 99 (1991).

Research Guide: 15 ASC 7804.

46.1305 Hearing to determine status.

Upon completion of the mental examination of the defendant, the court conducts a hearing to determine the defendant’s mental status. If on the basis of the hearing the court finds:

(1) That the defendant is not mentally competent to stand trial, then the court orders the defendant confined. If the defendant is confined on this basis only, the order shall contain a provision for a hearing within 120 days, unless, for good cause shown, the court orders an extension not to exceed 120 days. The purpose of the hearing is to determine whether there is a substantial probability that the defendant will recover mental competence to stand trial within 1 year from the date of the hearing or the maximum imprisonment imposable under the charge filed against the defendant whichever is lesser. If the court determines there is a substantial probability that the defendant will attain mental competence to stand trial within that period, then the defendant may be further confined; provided, that confinement is justified by progress toward attainment of competency to stand trial and is accompanied by appropriate mental health care and treatment. If the court determines at the hearing or any time later that there is not a substantial probability that the defendant will attain mental competence to stand trial within that period, then the defendant must be released or recommitted under alternative commitment procedures.

(2) That the defendant was insane at the time of the commission of the criminal act, then the court shall order the defendant to be confined, unless it appears to the court that the defendant has fully recovered his sanity, in which case the defendant is released. After a finding of insanity and within 6 months, an additional hearing is held to determine whether the defendant’s sanity has been fully recovered. Upon a finding that defendant’s sanity has not been recovered, the defendant may make further applications for hearings on the defendant’s recovery of sanity provided that 1 year elapses between the applications, and further provided that:

(A) the burden of proving recovery of sanity is on the defendant;

(B) upon the expiration of the maximum imprisonment imposable against the defendant provided by virtue of the criminal charges filed against defendant, the defendant must be released or recommitted according to alternative commitment procedures.

History: 1979, PL 16-43 § 2.

Case Notes:

The Court may order a mentally incompetent defendant to be confined for a maximum of 120 days; within 120 days a hearing shall be held to determine whether the defendant has become competent to stand trial and, if not, whether there is a substantial probability that he will attain competency within one year or the maximum term of imprisonment for the crime charged. A.S.C.A. § 46.1305 American Samoa Government v. Taylor, 16 A.S.R.2d 44 (1990).

Research Guide: 15 ASC 7805

46.1306 Presumptions-Evidence.

(a) All persons are presumed sane or mentally competent.

(b) In the sound discretion of the court, any evidence may be received relative to the defendant’s mental competence or sanity at any proceeding to determine that competence or sanity. Within this framework, traditional rules of evidence affect the weight, but not the admissibility, of evidence.

History: 1979, PL 16-43 § 2.

46.1307 Proceedings after sanity determination.

Criminal proceedings may be resumed against a defendant after a finding by the court that:

(1) the defendant, previously found incompetent to stand trial, is now competent to do so; or

(2) the defendant is found mentally competent at the hearing preceding the mental examination to determine the defendant’s competency.

History: 1979, PL 16-43 § 2.

Research Guide: 15 ASC 7807.

46.1308 Confinement.

All orders for confinement pertain to confinement in a correctional facility in American Samoa; provided, that the court is authorized to establish other places, both within and outside American Samoa, for confinement or treatment of a particular person confined by virtue of the provisions of this chapter; and provided that the court may establish and require the defendant to observe a program of mental treatment to be carried out at the place of confinement or elsewhere.

History: 1979, PL 16-43 § 2.

Research Guide: 15 ASC 7808.

46.1309 Treatment as outpatient.

A defendant in a criminal case whose mental incompetence or insanity has been stipulated by the parties, or who has been found incompetent or insane under 46.1301 through 46.1310 and 46.3216, may, by stipulation of the parties and the permission of the court, be treated as an outpatient of a mental health facility without required confinement. In that instance the court may make orders as it sees fit for the mental treatment and physical placement of the defendant.

History: 1979, PL 16-43 § 2.

Research Guide: 15 ASC 7809.

46.1310 Jurisdiction of the High Court.

Proceedings under 46.1301 through 46.1310 and 46.3216, are heard by the court which has jurisdiction over the charged criminal offense.

History: 1979, PL 16-43 § 2.

Research Guide: 15 ASC 7810.

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Chapter 14

EVIDENCE (RESERVED)

Chapter 15

JURY

Sections:

46.1501 Policy.

46.1502 Prohibition of discrimination.

46.1503 Definitions.

46.1504 Grounds of disqualification.

46.1505 Disqualification by interest.

46.1506 Exemptions.

46.1507 Excused for cause only.

46.1508 Pay-Mileage fee.

46.1509 Certificate for jury pay.

46.1510 Jury commission.

46.1511 Master list.

46.1512 Master jury wheel.

46.1513 Juror qualification form.

46.1514 Questing of prospective juror.

46.1515 Summons for examination of prospective jurors.

46.1516 Misrepresentation of material facts.

46.1517 Qualified jury wheel.

46.1518 Certified jury lists.

46.1519 Drawing of trial jury.

46.1520 Summoning of jurors.

46.1521 Requests for exemption or excuse.

46.1522 Jurors disqualified, exempted, or excused.

46.1523 Term of jurors.

46.1524 Challenging compliance with selection procedures.

46.1525 Preservation of records.

46.1526 Protection of jurors’ employment.

46.1527 Use of electronic or electromechanical devices for drawing trial juries.

46.1501 Policy.

It is the policy of this Territory that all persons selected for jury service be selected at random from a fair cross-section of the population of the area served by the court, and that all qualified nationals and U.S. citizens who are residents of this Territory have the opportunity in accordance with this chapter to be considered for jury service in this Territory and an obligation to serve as jurors when summoned for that purpose.

History: 1980, PL 16-70 § 1.

46.1502 Prohibition of discrimination.

A national shall not be excluded from jury service in this Territory on account of race, color, religion, sex, national origin, economic status, or on account of a physical handicap except as provided in paragraph (3) of 46.1504.

History: 1980, PL 16-70 § 1.

46.1503 Definitions.

As used in this chapter:

(a) “Clerk” and “Clerk of the Court” include any deputy clerk.

(b) “Court” means the High Court and District Court of this Territory, and includes, when the context requires, any judge of the court.

(c) “Jury wheel” means any physical device or electronic system for the storage of the names or identifying numbers of prospective jurors.

(d) “Name” when used in connection with prospective jurors, includes identifying numbers of the jurors.

(e) “National” means a person who owes permanent allegiance to the United States. For purposes of this act the word “national” also includes persons who are citizens of the United States of America.

(f) “Physical handicap” means a physical impairment which substantially limits one or more of a person’s major life activities.

(g) "Resident” means a person, who has lived in this Territory for at least 90 days.

History: 1980, PL 16-70 § 1.

46.1504 Grounds of disqualification.

A prospective juror is disqualified to serve as a juror if he:

(1) is not a National of the United States, 18 years old and a resident of the Territory:

(2) is unable to read, speak, and understand the English or Samoan language;

(3) is incapable, by reason of his physical or mental disability, of rendering satisfactory jury service; but a person claiming this disqualification may be required to submit a physician’s certificate as to the disability and the certifying physician is subject to inquiry by the court at its discretion; or

(4) has been convicted of a felony in a Territorial, State, or Federal court and not pardoned.

History: 1980, PL 16-70 § 1.

Case Notes:

Fact that jurors who speak only Samoan must receive jury instructions through translator does not violate constitutional right to due process; need for translation is inevitable in bilingual territory where many witnesses and jurors speak one language but not the other. 46 A.S.C.A. § 46.1504. American Samoa Government v. Agasiva, 4 A.S.R.2d 110 (1987).

No right exists for a citizen of another country to be tried in American Samoa by a jury of his compatriots. A.S.C.A. § 46.1504(1). American Samoa Government v. Schuster, 24 A.S.R.2d 102 (1993).

Territorial statute permitting jurors who can read, speak, and understand Samoan but not English does not violate defendant's constitutional right to effective assistance of counsel. 46 A.S.C.A. § 46.1504. American Samoa Government v. Agasiva, 4 A.S.R.2d 110 (1987).

46.1505 Disqualification by interest.

No person shall sit as a juror in any case in which his relative by affinity or by consanguinity within the 3d degree is interested, either as a plaintiff or defendant, or in the issue of which the juror has, either directly or through such relative, any pecuniary interest.

History: 1980, PL 16-70 § 1.

46.1506 Exemptions.

A person may claim exemption from service as a juror if he is:

(1) an attorney at law;

(2) a head of an executive department, an elected official, or a judge of the United States or the Territory;

(3) a minister or priest following his profession;

(4) a practicing physician or dentist;

(5) a member of the armed forces or militia when on active service, or an active member of a police or fire department.

History: 1980, 16-70 § 1.

46.1507 Excused for cause only.

A juror shall not be excused by a court for slight or trivial cause, but only when it appears that jury duty would entail a serious personal hardship, or that for other good cause he should be excused either temporarily or otherwise.

History: 1980, PL 16-70 § 1.

46.1508 Pay-Mileage fee.

The pay of jurors shall be $10 for each half day, and $20 for each day of actual attendance at court, and in addition 20¢ for each mile actually and necessarily traveled in going only. The mileage fee may be allowed to a juror although, upon his request, he is excused from jury service, or claims exemption from jury service, provided he reports in person at the time for which he was summoned. In the discretion of the court any juror who incurs expenses for transportation, board, and lodging as a result of the distance he resides from the location of the court may be reimbursed for actual expenses.

History: 1980, PL 16-70 § 1.

46.1509 Certificate for jury pay.

At least once each month, the clerk shall certify the number of days each juror has attended court and the amount due to him. Each juror shall state on oath to the clerk the number of miles traveled for which he is entitled to mileage.

History: 1980, PL 16-70 § 1.

46.1510 Jury commission.

A Jury Commission of 5 members is established to perform the duties prescribed by this chapter under the supervision and control of the court. The Jury Commission shall be composed of the Clerk of the Court and 4 Jury Commissioners appointed by the Chief Justice prior to 15 January of each year, for a term of 1 year from and after 15 January. The Jury Commissioners must be Nationals of the United States and residents of the Territory. Any Jury Commissioner may be removed by the appointing power for any reason considered sufficient by the appointing power. No more than 3 Commissioners shall be members of the same political district. If a vacancy occurs in the office of a Jury Commissioner at any time, another Commissioner shall be similarly appointed to fill the vacancy. Each Jury Commissioner, except the Clerk of Court appointed to the Commission, shall be allowed for services on the Jury Commission such compensation as may be determined by the judge or judges to be just and reasonable, not to exceed $400 per year, payable out of court expense funds.

History: 1980, PL 16-70 § 1.

46.1511 Master list.

(a) Not less than once each year the Jury Commission shall compile a master list. The master list shall consist of all voter registration lists for the Territory, which may be supplemented with names from other lists of persons resident therein such as lists of taxpayers and driver’s licenses. This includes names, address, and social security numbers taken from income tax returns and estimates.

(b) Whoever has custody, possession, or control of any of the lists which are to be used in compiling the master list, shall make the list available to the Jury Commission for inspection, reproduction, and copying at all reasonable times.

History: 1980, PL 16-70 § 1.

46.1512 Master jury wheel.

Not less than once each year the Jury Commission shall, by random selection, place in the master jury wheel the names of prospective jurors taken from the master list, in such number as the Jury Commission determines should be processed in order to provide the number of jurors required for the ensuing year. From time to time an additional number may be determined by the Jury Commission or ordered by the court to be placed in the master jury wheel.

History: 1980, PL 16-70 § 1.

46.1513 Juror qualification form.

The Jury Commission shall prepare an alphabetical list of the names in the master jury wheel, which shall not be disclosed to any person other than pursuant to this chapter or specific order of the court. The Jury Commission shall mail to every name on such list a juror qualification form accompanied by instructions to fill out and return the form by mail to the clerk within 10 days after its receipt. The form shall be subject to approval by the court as to matters of form and shall elicit the name, address of resident, age of the prospective juror, other information pertinent to disqualification or exemption from jury service, and such other matters as may be ordered by the court. The form further shall contain the prospective juror’s declaration that his responses are true to the best of his knowledge and his acknowledgment that a willful misrepresentation of a material fact may be punished by a class B misdemeanor. Notarization of the juror qualification form shall not be required. If the prospective juror is unable to fill out the form, another person may do it for him and shall indicate that he has done so and the reason there for. Upon failure or refusal of any person duly receiving the juror qualification form to complete and return it as required, or in case of an omission, ambiguity, or error in a returned form, the court, after first summoning the person to appear before the clerk to complete or correct the form, may punish the person for contempt.

History: 1980, PL 16-70 § 1.

46.1514 Questing of prospective juror.

At the time of his appearance for jury service, or at the time of any interview before the court, Jury Commission, or clerk, any prospective juror may be required or permitted to fill out another juror qualification form in the presence of the court, Jury Commission, or clerk, at which time the prospective juror may be questioned, but only with regard to his questions contained on the form and grounds for his exemption, excuse or disqualification. Any information thus acquired by the court, jury commission, or clerk shall be noted on the juror qualification form.

History: 1980, PL 16-70 § 1.

46.1515 Summons for examination of prospective jurors.

The jury commission may in its discretion, by court process, summon prospective jurors before it for examination. A person summoned for examination shall receive mileage as under 46.1508.

History: 1980, PL 16-70 § 1.

46.1516 Misrepresentation of material facts.

Any person who willfully misrepresents a material fact on a juror qualification form for the purpose of avoiding or securing service as a juror is guilty of a class C misdemeanor.

History: 1980, PL 16-70 § 1.

46.1517 Qualified jury wheel.

Upon return of the juror qualification forms, the jury commission shall, after careful investigation in each case, select for jury service all those persons whom it believes are qualified and not exempt; provided, that any person who is exempt may be selected if he waives his exemption. The names of the persons so selected shall be placed in the qualified jury wheel, to be used in compiling lists of jurors subject to service during the ensuing year: provided, that the jury commission may, with the approval of the court, excuse a prospective juror for any cause set forth under 46.1507, in which case the name of such excused person shall not be placed in the qualified jury wheel.

History: 1980, PL 16-70 § 1.

46.1518 Certified jury lists.

Every year the jury commission shall make and, not later than 5 January, file with the clerk of the court 1 or more certified lists of the names and addresses of 50 nationals, or such greater number as the court may order, subject to serve as jurors during the ensuing year from and after 15 January. At the same time the jury commission shall likewise file a separate certified list of the names and addresses of nationals subject to serve as trial jurors during the ensuing year, after 15 January, the number as the jury commission considers necessary. The certified lists of trial jurors shall be compiled from names drawn at random from the qualified jury wheel, and shall be prepared in alphabetical sequence. The names on the certified lists shall be open to public inspection, subject to order of the court.

History: 1980, PL 16-70 § 1.

46.1519 Drawing of trial jury.

(a) In the High Court, this section shall be applicable to the drawing of a trial jury and service thereon.

(b) Not later than 15 January of each year, the clerk shall draw at random from the names on the certified list of trial jurors such number of trial jury panels as is deemed sufficient for the ensuing year, each panel to consist of 18 names. When directed by the court, additional panels shall be drawn. The names and juror qualification forms for the prospective jurors on each panel shall be sealed in envelopes, 1 envelope for each panel. The envelopes shall remain sealed and in the custody of the clerk.

(c) Whenever a judge requires the services of a trial jury for use in proceedings before him or any other judge of the court, he may order the required number of panels from the clerk. Upon receipt by the judge of the envelopes containing the panels, the contents thereof shall be made available to the litigants concerned.

(d) The whole or any number of the jurors from a panel or panels ordered by a judge may be required to attend and serve. The names of those summoned and present, and not disqualified, excused or exempted, shall be placed in an appropriate container, from which there shall be drawn a sufficient number of names to constitute a trial jury. The drawing shall be by lot in open court under the supervision of the judge. There is no requirement that names on a particular panel be exhausted before those on another panel may be used in the drawing, and the names of jurors on different panels which have been transmitted to the judge may be mixed with each other in the container during the drawing. If a jury cannot be chosen for the trial of a case from the names placed in the container before the drawing commenced, additional names may be placed in the container. For this purpose additional panels may be ordered and the prospective jurors summoned. The judge may summon jurymen from among bystanders on consent of all parties.

(e) Prospective jurors in attendance but not actually serving in a trial before him shall be subject to such orders relative to further jury service as the judge deems appropriate, including service before other judges.

(f) Each panel ordered by a judge shall serve for a period of 30 days, commencing from the 1st day the panel is required to appear for service; provided, that any juror may be required to serve beyond the 30-day period for the trial of any case in which the selection of the jury commenced within that period. Upon completion of service by all members of a panel, such panel shall be returned to the clerk which shall not transmit such panel again to any judge until all other panels have been exhausted and other panels which served at a more remote time have been first transmitted for service.

(g) A judge may, having regard to the equitable distribution of jury service, excuse any juror after actual service in trial.

History: 1980, PL 16-70 § 1.

46.1520 Summoning of jurors.

(a) When so ordered by the court, the clerk shall transmit to the Commissioner of Public Safety or Marshal the names of jurors to be summoned. The Commissioner of Public Safety or Marshal, either personally or through an authorized subordinate, shall summon the persons named to attend the court by giving personal notice to each of the time and place of required appearance as fixed by order of the court. The court may order the summoning of jurors by any officer of the court and the service of summons by any form of personal notice, including notice by telephone.

(b) A juror who willfully or without reasonable excuse fails to attend after personal service of written summons by a Commissioner of Public Safety or Marshal may be arrested and punished for contempt.

History: 1980, PL 16-70 § 1.

46.1521 Requests for exemption or excuse.

If a person who is exempt or who believes himself to be entitled to be excused from jury duty, is summoned as a juror, he may, even though he did not request exemption or excuse previously, or was not exempted or excused by the jury commission, make his request for exemption or excuse to the judge of the court. The request may be made to the clerk or marshal, who shall deliver it to the judge, and if sufficient in substance, it shall be received as an excuse for nonattendance in person.

History: 1980, PL 16-70 § 1.

46.1522 Jurors disqualified, exempted, or excused.

Whenever a juror has been disqualified, exempted, or excused, that fact shall be noted on his juror qualification form, and he shall not be subject to service for the period of time commensurate with the nature and circumstances of his disqualification, exemption, or excuse.

History: 1980, PL 16-70 § 1.

46.1523 Term of jurors.

The persons whose names are placed on the certified lists filed by the jury commission shall be subject to service for 1 year from and after 15 January and until the filing of new certified lists, provided, that jurors may sit beyond the end of the period above prescribed for the trial of any case in which the selection of the jury commenced within said period.

History: 1980, PL 16-70 § 1.

46.1524 Challenging compliance with selection procedures.

(a) Promptly after the moving party discovered or by the exercise of diligence could have discovered the grounds therefor, and in any event before the trial jury is sworn to try the case, a party may move to stay the proceedings, and in a criminal case for other appropriate relief, on the ground of substantial failure to comply with this chapter in selecting the trial jury.

(b) Upon motion filed under subsection (a) containing a sworn statement of facts which, if true, would constitute a substantial failure to comply with this chapter, the moving party is entitled to present in support of the motion the testimony of a jury Commissioner or the clerk, any relevant records and papers not public or otherwise available used by the jury commission or the clerk, and any other relevant evidence. If the court determines that in selecting a trial jury there has been a substantial failure to comply with this chapter and that the moving party has been prejudiced thereby, the court shall stay the proceedings pending the selection of the jury in conformity with this chapter, or grant other appropriate relief.

(c) The procedures prescribed by this section are the exclusive means by which a person accused of a crime, the territory, or a party in a civil case may challenge a jury on the ground that the jury was not selected in conformity with this chapter.

(d) The contents of any records or papers used by the jury commission or the clerk in connection with the selection process shall not be disclosed except as provided by other provisions of this chapter, or in connection with preparation or presentation of a motion under subsection (a) or upon order of the court. The parties in a case may inspect, reproduce, and copy the records or papers at all reasonable times during the preparation and pendency of a motion under subsection (a).

History: 1980, PL 16-70 § 1.

46.1525 Preservation of records.

All records and papers compiled and maintained by the jury commission or the clerk in connection with selection and service of jurors shall be preserved by the clerk in connection with selection and service of jurors shall be preserved by the clerk for 4 years after the termination of the prescribed period of service and for any longer period ordered by the court.

History: 1980, PL 16-70 § 1.

46.1526 Protection of jurors employment.

(a) An employer shall not deprive an employee of his employment, or threaten or otherwise coerce him with respect thereto, because the employee receives a summons, responds thereto, serves as a juror, or attends court for prospective jury service.

(b) Any employer who violates subsection (a) is guilty of a class C misdemeanor.

(c) If an employer discharges an employee in violation of subsection (a), the employee within 90 days from the date of discharge may bring a civil action for recovery of wages lost as a result of the violation and for an order requiring the reinstatement of the employee. Damages recoverable shall not exceed lost wages for 6 weeks. If he prevails, the employee shall be allowed a reasonable attorney’s fee fixed by the court.

History: 1980, PL 16-70 § 1.

46.1527 Use of electronic or electromechanical devices for drawing trial juries.

Selections of citizens who are subject to jury duty and drawings of jury lists and panels may be made by means of electronic or electromechanical devices commonly designated as data processing equipment such as punch cards, electronic tape, random access files, and other solid state devices when they are available for their use and the court so orders.

History: 1980, PL 16-70 § 1.

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Chapter 16

TRIAL IN COURT (RESERVED)

CHAPTER 17

(RESERVED)

CHAPTER 18 VILLAGE COURT PROCEEDINGS

Sections:

46.1801 Designation of prosecutor-Filing complaint.

46.1802 Sentence for plea of guilty.

46.1803 Plea of not guilty-Trial.

46.1804 Rights of accused.

46.1805 Admissible evidence.

46.1806 Sentencing-Suspensions.

46.1807 Failure to appear or perform sentence.

46.1808 Retrial de novo-District Court.

46.1801 Designation of prosecutor-Filing complaint.

(a) The pulenuu of each village, or his designee, shall serve as prosecutor before the court for the village, except that when the pulenuu is to be a witness, he shall designate another person as prosecutor.

(b) When a pulenuu has evidence that a village regulation has been violated, he may file a complaint with the village court. The complaint shall be in writing and a copy shall be served on the accused prior to arraignment. The complaint shall advise the accused in effective and understandable language of the following:

(1) the nature of the charge against him and the specific regulation involved;

(2) the time and place of his arraignment for the entry of his plea and the time and place of his trial if he pleads not guilty;

(3) his rights as enumerated in 46.1804;

(4) his right to a retrial de novo before the district court as provided in 46.1808.

History: 1969, PL 11-54; 1971, PL 12-16 § 2; and 1979, PL 16-52 § 4.

Amendments: 1979 Subsection (a): deleted “district” from before “court”. Subsection (1,): substituted, “village court”, for “district court” in first sentence, and, in paragraph (4), substituted “district court” for “High Court”.

46.1802 Sentence for plea of guilty.

If an accused pleads guilty on arraignment before a village court, the court may find the accused guilty and sentence the accused as provided in 46.1806.

History: 1969, PL 11-54; and 1979, PL 16-52 § 5.

Amendments: 1979 Substituted “village court” for “district court”.

46.1803 Plea of not guilty-Trial.

If the accused pleads not guilty, he may be found guilty only after a trial before the village court. Trials shall be open to the public, and no trial may be held sooner than seven days after the accused has been served with a copy of the complaint.

History: 1969, PL 11-54; and 1979, PL 16-52 § 6.

Amendments: 1979 Substituted “village court” for “district court”.

46.1804 Rights of accused.

An accused shall have the right to:

(1) request and receive any time necessary to consult with counsel and to prepare his defense;

(2) be represented by the counsel of his choice at arraignment and trial;

(3) be present during the trial and to cross-examine witnesses presented against him;

(4) present any material evidence on his own behalf and to have witnesses summoned by the court as his request;

(5) testify in his own behalf or to refrain from testifying, as he may prefer.

History: 1969, PL 11-54.

46.1805 Admissible evidence.

The court shall consider only the evidence presented before it under oath or stipulated to; no other written statements of witnesses or other hearsay may be presented.

History: 1969, PL 11-54.

46.1806 Sentencing-Suspensions.

(a) If a village court finds an accused guilty it may sentence the accused to the penalty provided in the village regulations. If permitted by the village regulations, the village court, upon conviction, may impose a fine not to exceed $100 or may require the accused to perform labor for the village under the supervision of the pulenu’u not to exceed 25 hours total or 8 hours in any day, or both.

(b) The court shall have the discretion to suspend sentences or impose lesser penalties than are provided in the village regulations but the court may not impose a penalty greater than that provided in the regulations.

History: 1969, PL l1-54; and 1979, PL 16-52§ 7.

Reviser’s Comment: This section, originally codified as 15 ASC 6401, was repealed by PL 16-43, and later amended by PL 16-52.

46.1807 Failure to appear or perform sentence.

(a) If an accused fails to appear in village court as summoned, or appears but fails to perform a sentence, the court shall refer the matter to the district court of American Samoa.

(b) Upon referral to the matter, the judge shall issue an order requiring the accused to appear at the District Court and show cause why he should not appear in Village Court or perform the required sentence as the case may be.

(c) If the accused fails to show cause and the judge is satisfied that the proceedings in the village are entirely regular in that the requirements of this title and all other laws and regulations pertaining to village courts have been met, he shall order the accused to so appear or perform the sentence.

(d) If the accused fails to comply with any order of the District Court made pursuant to this section, he shall be in contempt of court and dealt with accordingly.

History: 1966, PL 9-30; 1969, PL 11-54; 1972, PL 12-64 § 1; and 1979, PL 16-52 § 8.

Amendments: 1979 Made name changes to conform section to the Distinct Court Act of 1979.

46.1808 Retrial de novo-District court.

(a) Any accused who is found guilty by

a village court shall be informed by the court of his right to have his case retried de novo before the district court of American Samoa; provided, he requests such a retrial within 10 days of the pronouncement of judgment.

(b) If the accused informs the village court that he desires a retrial before the district court, the village court shall vacate the judgment and the pulenu’u shall refer the case to the Attorney General.

(c) If the Attorney General determines that prosecution of the case is justified, he shall be responsible for the prosecution before the district court, with the assistance of the pulenu’u. The accused shall be entitled to all the rights of a criminal defendant before the district court.

(d) Upon conviction following a retrial for a violation of village regulations, the District Court may impose only those penalties which the village court could have.

(e) Except for retrials de novo in District Court, there shall be no appeal from or review of village court proceedings. There is no right of appeal from a judgment of the district court entered after a trial de novo.

History: 1969, PL 11-54; and 1979, PL 16-52 § 9.

Amendments: 1979 Specifics of retrial de novo were amended generally.

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Chapter 19

GENERAL SENTENCING PROVISIONS

Sections:

46.1901 Authorized dispositions.

46.1902 Felony or misdemeanor-Combination of dispositions.

46.1903 Infraction-Combination of dispositions.

46.1904 Offense by organization-Combination of dispositions.

46.1905 Interpretation of chapter.

46.1906 Classification of offenses.

46.1907 Classification of offenses outside this title.

46.1908 Presentence investigation and report.

46.1909 Presentence commitment for study.

46.1910 Role of court in sentencing-Effect of Ifoga ceremony.

Research Guide: Following each section of this chapter appears the various codes, and their sections, upon which the criminal code was based. The following abbreviations apply:

ASC—American Samoa Code as of 13 December 1978.

MCC—Missouri Criminal Code, enacted as Senate Bill 60 in 1977, effective 1 January 1979.

MPC—Model Penal Code.

MPCC—Proposed Criminal Code for the state of Missouri prepared by the Committee to Draft a Modern Criminal Code, October 1973.

46.1901 Authorized dispositions.

(a) Every person found guilty of an offense, whether defined in this title or in the American Samoa Code Annotated in accordance with the classifications in this chapter, shall be dealt with by the court in accordance with the provisions of this chapter, except that for offenses defined outside this title and not in accordance with the classifications of this chapter and not repealed, the term of imprisonment or the fine that may be imposed is that provided in the statute defining the offense.

History: 1979, PL 16-43 § 2; and 1980, PL 16-90 § 1.

Amendments: 1980 Amended to conform with penalties provided for in Tide 46, Criminal Justice.

Research Guide: MCC 557.011, 15 ASC 5003, 15 ASC 5005, 15 ASC 6401.

46.1902 Felony or misdemeanor-Combination of dispositions.

Whenever any person has been found guilty of a felony or a misdemeanor, the court shall make 1 or more of the following dispositions of the offender in any appropriate combination. The court may:

(1) sentence the person to a term of imprisonment as authorized by 46.2301 et seq.;

(2) sentence the person to pay a fine as authorized by 46.2101 et seq.;

(3) suspend the imposition of sentence, with or without placing the person on probation;

(4) pronounce sentence and suspend its execution, placing the person on probation;

(5) impose a period of detention as a condition of probation, as authorized by 46.2206;

(6) require the person to do ordinary labor.

The sentence shall be carried out under the direction of the pulenu’u of the person’s village, the Attorney General, or the county chief of the person’s county as the court may direct.

History: 1979, PL 16-43 § 2.

Case Notes:

Rule 11 of criminal procedure requires notice to defendant in plea agreement that he has no right to withdraw guilty plea if government’s recommendation of sentence is not followed by court. Uliata v. A.S.G., 3 A.S.R.2d 102 (App. Div.(1986)).

Research Guide: MCC 557.011, 15 ASC 5003, 15 ASC 5005, 15 ASC 6401.

46.1903 Infraction-Combination of dispositions.

Whenever any person has been found guilty of an infraction, the court shall make 1 or the following dispositions of the offender in any appropriate combination. This court may:

(1) sentence the person to pay a fine as authorized by 46.2 101 et seq.;

(2) suspend the imposition of sentence, with or without placing the person on probation;

(3) pronounce sentence and suspend its execution, placing the person on probation;

(4) require the person to do ordinary labor in the county of the person’s residence as provided in subsection (6) of 46.1902.

History: 1979, PL 16-43 § 2.

Research Guide: MCC 557.011, 15 ASC 5003, 15 ASC 5005, 15 ASC 6401.

46.1904 Offense by organization-Combination of dispositions.

Whenever any organization has been found guilty of an offense, the court shall make 1 or more of the following dispositions of the organization in any appropriate combination. The court may:

(1) sentence the organization to pay a fine as authorized by 46.2101 et seq.;

(2) suspend the imposition of sentence, with or without placing the organization on probation;

(3) pronounce sentence and suspend its execution, placing the organization on probation;

(4) impose any special sentence or sanction authorized by law including, but not limited to, requiring the officers or directors of the organization to do ordinary labor, as provided in subsection (6) of 46.1902.

History: 1979, PL 16-43 § 2.

Research Guide: MCC 557.011, 15 ASC 5003, 15 ASC 5005, 15 ASC 6401.

46.1905 Interpretation of chapter.

This chapter is not to be construed to deprive the court of any authority conferred by law to decree a forfeiture of property, suspend or cancel a license, remove a person from office, or impose any other civil penalty. An appropriate order exercising that authority may be included as part of any sentence.

History: 1979, PL 16-43 § 2.

Research Guide: MCC 557 011, 15 ASC 5003, 15 ASC 5005, 15 ASC 6401.

46.1906 Classification of offenses.

(a) Felonies are classified for the purpose of sentencing into the following 4 categories:

(1) class A felonies;

(2) class B felonies;

(3) class C felonies;

(4) class D felonies.

(b) Misdemeanors are classified for the purpose of sentencing into the following 3 categories:

(1) class A misdemeanors;

(2) class B misdemeanors;

(3) class C misdemeanors.

History: 1979, PL 16-43 § 2.

Research Guide: MCC 557 016, 15 ASC 1.

46.1907 Classification of offenses outside this title.

(a) Any offense defined outside this title which is declared to be a misdemeanor without specification its penalty is a class A misdemeanor.

(b) Any offense defined outside this title which is declared to be a felony without specification its penalty is a class D felony.

(c) For the purpose of applying the extended term provisions of 46.2305, and for determining the penalty for attempts and conspiracies, offenses defined outside of this title are classified as follows.

(1) If the offense is a felony:

(A) it is a class A felony if the authorized penalty includes death, life imprisonment, or imprisonment for a minimum term of 10 years or more;

(B) it is a class B felony if the term of imprisonment authorized exceeds 5 years but is less than 15 years;

(D) it is a class D felony if the maximum term if imprisonment is less than 5 years;

(2) If the offense is a misdemeanor:

(A) it is a class A misdemeanor if the authorized imprisonment exceeds 6 months in jail;

(B) it is a class B misdemeanor if the authorized imprisonment exceeds 15 days but is not more than 6 months;

(D) it is an infraction if there is no authorized imprisonment.

History: 1979, PL 16-43 § 2.

Research Guide: MCC 557.021, 15 ASC 2.

46.1908 Presentence investigation and report.

(a) A probation officer shall, unless waived by the defendant, make a presentence investigation in all felony cases and report to the court before any authorized disposition under 46.1901 through 46.1905. In all other cases before the court, the probation officer shall, if directed by the court, make a presentence investigation and report to the court before any authorized disposition under 46.1901 through 46.1905. The report shall not be submitted to the court or its contents disclosed to anyone until the defendant has pleaded guilty or been found guilty.

(b) The presentence investigation report shall be prepared, presented, and utilized as may be provided by rule of court except that no court shall prevent the defendant or the attorney for the defendant from having access to the complete presentence investigation report and recommendations before any authorized disposition under 46.1901 through 46.1905.

(c) The defendant is not obligated to make any statement to a probation officer in connection with any presentence investigation.

History: 1979, PL 16-43 § 2.

Research Guide: MCC 557.026.

46.1909 Presentence commitment for study.

(a) In felony cases where the circumstances surrounding the commission of the crime or other circumstances brought to the attention of the court indicate a strong likelihood that the defendant is suffering from a mental disease or disorder, and the court desires more detailed information about the defendant’s mental condition before making an authorized disposition under 46.1901 through 46.1905, it may order the commitment of the defendant for mental examination.

(b) The court may commit the defendant to the Department of Health and order the defendant examined by a person or persons as the court or that department may designate. The cost of guarding and transporting any confined defendant to and from any place of examination shall be borne by the territory. Any commitment shall be for a period not exceeding 120 days.

(c) Within 40 days after the examination the person or persons making the examination or examinations shall transmit to the court a report of it including answers to any specific questions submitted by the court. The Clerk of the Court shall immediately supply copies of the report to the prosecuting attorney and to the defendant or his attorney.

(d) Any period of commitment to a facility of the Department of Health for the purpose of this section shall be credited against any term of imprisonment imposed upon the defendant.

History: 1979, PL 16-43 § 2.

46.1910 Role of court in sentencing-Effect of Ifoga ceremony.

(a) Upon a finding of guilt upon verdict or plea, except as provided in 46.3513, the court shall decide the extent or duration of sentence or other disposition to be imposed under all the circumstances, having regard to the nature and circumstances of the offense and the history and character of the defendant, and render judgment accordingly.

(b) In deciding the extent or duration of sentence or other disposition to be imposed, the court may, in addition to the factors included in subsection (a), reduce the extent or duration of the sentence or other disposition if the court finds that an ifoga ceremony has been performed.

(1) “Ifoga” means the Samoan custom of public apology.

(2) In deciding the extent or duration of sentence or other disposition to be imposed when an ifoga ceremony has been performed, the court may reduce the level of the crime by a maximum of 1 classification from the classification upon which judgment of guilt has been entered following a plea of guilty or trial.

History: 1979, PL 16-43 § 2.

Case Notes:

Mandatory application of subsection (c) 15 ASC 5005 inoperative due to young ace of defendant and prior satisfactory performance while in custody. Government v. Tuiiau. ASR (1977).

Research Guide: MCC 557.036. 15 ASC 5004, 15 ASC 5005, 15 ASC 6401.

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Chapter 20

RESTITUTION TO VICTIMS OF CRIME

Sections:

46.2001 Findings-Purpose.

46.2002 Establishment of restitution programs.

46.2003 Prohibition on victims paying court of filing fees

Research Guide: MCC 557 031, 15 ASC 7801 —7810.

46.2001 Findings-Purpose.

(a) The Legislature finds and declares that:

(1) the number of victims of crime increases daily;

(2) these victims suffer undue hardship by virtue of physical injury or loss of property;

(3) persons found guilty of causing this suffering should be under a moral and legal obligation to make adequate restitution to those injured by their conduct;

(4) restitution or reparation, or both, provided by criminal offenders to their victims, in money or service, may be an instrument of rehabilitation for offenders.

(b) The purpose of this chapter is to encourage the establishment of programs to provide for restitution to victims of crime by offenders who are sentenced, or who have been released on parole, or who are being held in the correctional and detention facility. It is the intent of the Legislature that restitution be utilized wherever feasible to restore losses to the victims of crime and to aid the offender in reintegration as a productive member of society.

History: 1978, PL 15-77 § 1.

46.2002 Establishment of restitution programs.

The Department of Public Safety may, as a means of assisting in the rehabilitation of persons committed to its care, establish programs and procedures whereby those persons may contribute toward restitution, in money or service, of those persons injured as a consequence of their criminal acts.

History: 1978, PL 15-77 § 1.

46.2003 Prohibition on victims paying court of filing fees.

In connection with the prosecution of any misdemeanor or felony domestic violence or sexual assault offense, the victim or abused shall not bear the costs associated with filing criminal charges and prosecution of a domestic violence or sexual assault defendant, including filing fees for criminal charges, costs associated with the issuance or service of a warrant protection order, or witness subpoena.

History: 1997 PL 25-11.

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Chapter 21

FINES

Sections:

46.2101 Felonies.

46.2102 Misdemeanors and infractions.

46.2103 Fines for corporations.

46.2104 Fine to be proportioned to burden of payment.

46.2105 Nonpayment-Warrant of arrest or summons.

46.2106 Default by corporation.

46.2107 Means of collection upon default.

46.2108 Revocation of a fine.

Research Guide: Following each section of this chapter appear the various codes, and their sections, upon which the criminal code was based, The following abbreviations apply:

ASC—American Samoa Code as of 13 December 1978.

MCC—Missouri Criminal Code, enacted as Senate Bill 60 in 1977, effective 1 January 1979.

MPC—Model Penal Code.

MPCC—Proposed Criminal Code for the state of Missouri prepared by the Committee to Draft a Modern Criminal Code, October 1973

46.2101 Felonies.

(a) A person who has been convicted of a class C or D felony may be sentenced:

(1) to pay a fine not exceeding $5,000; or

(2) if the offender has gained money or property through the commission of the crime, to pay an amount, fixed by the court, not exceeding 2 times amount of the offender’s gain from the commission of the crime. An individual offender may be fined not more than $20,000 under this provision.

(b) As used in this section, the term “gain” means the amount of money or the value of property derived from the commission of the crime. The amount of money or value of property returned to the victim of the crime or seized by or surrendered to lawful authority prior to the time sentence is imposed shall be deducted from the fine. When the court imposes a fine based on gain, the court shall make a finding as to the amount of the offender’s gain from the crime. If the record does not contain sufficient evidence to support such a finding, the court may conduct a hearing upon the issue.

History: 1979, PL 16-43 § 2.

Research Guide: MCC 560.016.

46.2102 Misdemeanors and infractions.

(a) Except as otherwise provided for an offense outside this part, a person who has been convicted of a misdemeanor or infraction may be sentenced to pay a fine not exceeding:

(1) $1,000 for a class A misdemeanor;

(2) $500 for a class B misdemeanor:

(3) $300 for a class C misdemeanor;

(4) $200 for an infraction.

(b) In lieu of a fine imposed under subsection (a), a person who has been convicted of a misdemeanor or infraction through which he derived “gain”, as defined in 46.2101, may be sentenced to a fine which does not exceed 2 times the amount of gain from the commission of the offense. An individual offender may be fined not more than $20,000 under this provision.

History: 1979, PL 16-43 § 2.

Research Guide: MCC 560.016

46.2103 Fines for corporations.

(a) A sentence to pay a fine, when imposed on a corporation for an offense defined in this title or for any offense defined outside this title for which no special corporate fine is specified, shall be a sentence to pay an a-mount, fixed by the court, not exceeding:

(1) $10,000 when the conviction is of a felony;

(2) $5,000 when the conviction is of a class A misdemeanor:

(3) $2,000 when the conviction is of a class B misdemeanor;

(4) $1,000 when the conviction is of a class C misdemeanor;

(5) $500 when the conviction is of an infraction;

(6) any higher amount not exceeding 2 times the amount of the corporation’s gain from the commission of the offense, as determined under 46.2101.

(b) In the case of an offense defined outside this title, if a special fine for a corporation is expressly specified in the statute that defines the offense, the fine fixed by the court shall be:

(1) an amount within the limits specified in the statute that defines the offense; or

(2) any higher amount not exceeding 2 times the amount of the corporation’s gain from the commission of the offense, as determined tinder 46.2101.

History: 1979, PL 16-43 § 2.

Research Guide: MCC 560 021.

46.2104 Fine to be proportioned to burden of payment.

(a) In determining the amount and the method of payment of a fine, the court shall, insofar as practicable, proportion the fine to the burden that payment will impose in view of the financial resources of a defendant. The court may not sentence an offender to pay a fine in any amount which will prevent him from making restitution or reparation to the victim of the offense.

(b) When any other disposition is authorized by statute, the court shall not sentence an individual to pay a fine only unless, having regard to the nature and circumstances of the offense and the history and character of the offender, it is of the opinion that the fine alone will suffice for the protection of the public.

(c) The court may not sentence an individual to pay a fine in addition to any other sentence authorized by 46.1901 through 46.1905 unless:

(1) he has derived a pecuniary gain from the offense; or

(2) the court is of the opinion that a fine is uniquely adapted to deterrence of the type of offense involved or to the correction of the defendant.

(d) When an offender is sentenced to pay a fine, the court may provide for the payment to be made within a specified period of time or in specified installments. If no delayed or installment provision is made a part of the sentence, the fine is payable immediately.

(e) When an offender is sentenced to pay a fine, the court may not impose at the same time an alternative sentence to be served in the event that the fine is not paid. The response of the court to nonpayment is determined only after the fine has not been paid, as under 46.2105 through 46.2107.

History: 1979, PL 16-43 § 2.

Research Guide: MCC 560 026.

46.2105 Nonpayment-Warrant of arrest or summons.

(a) When an offender sentenced to pay a fine defaults in the payment of the fine or in any installment, the court upon motion of the Attorney General or upon its own motion, may require him to show cause why he should not be imprisoned for nonpayment. The court may issue a warrant of arrest or a summons for his appearance.

(b) Following an order to show cause under subsection (a), unless the offender shows that his default was not attributable to an intentional refusal to obey the sentence of the court, or not attributable to a failure on his part to make a good faith effort to obtain the necessary funds for payment, the court may order the defendant imprisoned for a term not to exceed 180 days if the fine was imposed for conviction of a felony, misdemeanor, or infraction. The court may provide in its order that payment or satisfaction of the fine at any time will entitle the offender to his release from the imprisonment or, after entering the order, may at any time reduce the sentence for good cause shown, including payment or satisfaction of the fine.

(c) If it appears that the default in the payment of a fine is excusable under the standards set forth in subsection (b), the court may enter an or