proposed crim rules

8/14/2019 Proposed Crim Rules

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RULES OF CRIMINAL PROCEDURE UNDER CONSIDERATIONOR TO BE CONSIDERED BY CRIMINAL RULES STUDY COMMITTEE10 OCTOBER 2008i. GENERAL PROVISIONS Rule 10.3 Presence of Witnesses and SpectatorsRule 11. Change of the Place of TrialRule 1. General Provisions Rule 11.1 Change of VenueRule 1.1 Scope Rule 11.2 Transfer to another CountyRule 1.2 Purpose and ConstructionRule 1.3 Computation and Enlargement of Time Rule 12. Incompetency and Mental ExaminationsRule 1.4 Definitions Rule 12.1 Effect of Incompetency; DefinitionRule 1.5 Information on Each Pleading and Motion Rule 12.2 Examination of Defendant's Mental ConditionRule 1.6 Service of Copies and Certificate of ServiceRule 1.7 Interactive Audiovisual Devices Rule 12.3 Appointment of ExpertsRule 1.8 Local Rules Rule 12.4 Disclosure of Mental Health Evidence

Rule 12.5 Hearings and OrdersII. PRELIMINARY PROCEEDINGS Rule 12.6 Subsequent HearingsRule 12.7 PrivilegeRule 2. Commencement of Criminal ProceedingsRule 2.1 Commencement of Criminal Proceedings iV. PRETRIAL PROCEDURESRule 2.2 Duty of Judge upon Making of a ComplaintRule 13. The Grand JuryRule 3. Arrest Warrant or Summons upon Rule 13.1 Selection and Preparation of Grand JuryCommencement of Criminal Proceedings Rule 13.2 Instructions, Duties, and Powers of Grand JuryRule 3.1 Issuance of Arrest Warrant or Summons Rule 13.3 Grounds for Disqualification of Grand Juror in aRule 3.2 Contents of Arrest Warrant or Summons; Particular ActionExecution, Return; Arrest without a Warrant Rule 13.4 Grand Jury ForepersonRule 13.5 Recalcitrant Witnesses; Contempt

Rule 4. Search warrants Rule 13.6 Persons Authorized to be Present DuringRule 4.1 Issuance of Search Warrant Sessions of the Grand Jury; Grand Jury SecrecyRule 4.2 Warrant Upon Oral Testimony Rule 13.7 Grand Jury ProceedingsRule 4.3 Contents of Search Warrants; Time of Execution; Rule 13.8 Challenge to Grand Jury ProceedingsIncidental AuthorityRule 4.4 Execution and Return with Inventory; Custody of Rule 14. IndictmentProperty; Return of Papers to Court Rule 14.1 Scope of Rules Applicable to Felony CasesRule 4.5 Unlawfully Seized Property; Disposition of Seized Rule 14.2 Definition; Nature and ContentsProperty Rule 14.3 Amendment of Indictments; Defects inIndictmentsRule 5. Arrest and Initial AppearanceRule 5.1 Procedure upon Arrest Rule 15. Arraignment and PleasRule 5.2 Initial Appearance Rule 15.1 Necessity of ArraignmentRule 15.2 Proceedings at ArraignmentRule 6. Preliminary Hearing Rule 15.3 Entry of Plea of Guilty or No ContestRule 6.1 Right to a Preliminary Hearing; Waiver; Rule 15.4 Plea Negotiations and AgreementsPostponementRule 6.2 Proceedings at Preliminary Hearing Rule 16. Pleadings and Pretrial MotionsRule 16.1 GenerallyIII. RIGHTS OF PARTIES Rule 16.2 Time for Making MotionsRule 16.3 Motion Deadline; Hearings and Rulings onRule 7. Counsel MotionsRule 7.1 Right to Counsel; Waiver Rule 16.4 Effects of RulingsRule 7.2 Procedure for Appointment of Counsel forIndigent Defendants; Appearance; Withdrawal Rule 17. DisclosureRule 7.3 Determination of Indigency; Appointment of Rule 17.1 Scope of Rule 17Counsel; Compensation Rule 17.2 Disclosure by the ProsecutionRule 7.4 Standards of Appointment of Trial and Appellate Rule 17.3 Disclosure by DefendantCounsel in Death Penalty Cases Rule 17.4 DepositionsRule 17.5 General StandardsRule 8. Release (Reserved) Rule 17.6 Excision and Protective OrdersRule 17.7 Continuing Duty to Disclosure; Final DisclosureRule 9. Trial Setting Deadline; ExtensionRule 9.1 Docket; Scheduling; Duty of Prosecutor; Rule 17.8 SanctionsContinuance Rule XX DismissalRule 10. Presence of Defendant, Witnesses, andSpectators

Rule 10.1 Right of Defendant to be Present; WaiverRule 10.2 Defendant's Forfeiture of Right to be Present


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V. TRIAL Rule 28. Retention of Records and EvidenceRule 18. Trial by Jury; Waiver; Selection and Preparation Vii' APPEAL AND OTHER POST-CONVICTION RELIEFof Petit JuryRule 18.1 Trial by Jury Rule 29. Appeals from Justice or Municipal CourtRule 18.2 Jury Information Rule 29.1 Notice of Appeal; Filing; ContentsRule 18.3 Challenges Rule 29.2 Record; CostsRule 18.4 Procedure for Selecting a Jury Rule 29.3 Appearance BondsRule 18.5 Oath and Preliminary InstructionRule 18.6 Note Taking by Jurors Rule 30. Appeals from County CourtRule 18.7 Jury Sequestration Rule 30.1 Notice and Filng

Rule 30.2 BondRule 19.1 Proceedings at TrialRule 19.2 Bifurcated Trials Rule 31. Appeals to the Mississippi Supreme Court andRule 19.3 Additional Duties of Court Reporters Court of AppealsRule 20. Motions for a Judgment of Acquittal Rule 32. Post-Conviction Collateral ReliefRule 21. Jury Instructions ViI. POWERS OF COURTRule 22 Deliberation Rule 33. Criminal ContemptRule 22.1 Retirement of Jurors Rule 33.1 DefinitionRule 22.2 Materials used During Deliberation Rule 33.2 Summary Procedure for Direct ContemptRule 22.3 Additional Instructions and Further Review of Rule 33.3 Disposition of Indirect and Other Contempts;Evidence Notice and HearingRule 22.4 Assisting Jurors at Impasse Rule 33.4 Disqualification of JudgeRule 22.5 Discharge

Rule 35.1 Motions: Form, Content, Rights of Reply, andRule 23. Verdict LengthRule 23.1 Time and Form of Verdict Rule 35.2 Hearing; Oral ArgumentRule 23.2 Types of Verdict Rule 35.3 Waiver of Formal RequirementsRule 23.3 Necessity for Forms of Verdict Rule 35.4 Service and FilngRule 23.4 Partial Verdicts and Mistrial Rule 35.5 Presentation of Orders to the CourtRule 23.5 Jury Poll Rule 35.6 Entry of Order and Duty of Clerk

VI. POST-VERDICT PROCEEDINGS Rule XX Subpoenas FORMSRule 24. Post-Trial MotionsRule 24.1 Motion for a New TrialRule 24.2 Motion in Arrest of JudgmentRule 24.3 Denial by Operation of LawRule 24.4 Clerical ErrorRule 26.1 Definitions; ScopeRule 26.2 Judgment; TimeRule 26.3 Presentence ReportRule 26.4 Diagnostic Evaluation and Mental HealthExaminationRule 26.5 Disclosure of the Presentence, Diagnostic, andMental Health ReportsRule 26.6 Sentence HearingRule 26.7 Presence of the DefendantRule 26.8 Pronouncement of Judgment and SentenceRule 26.9 Fine, Restitution, or Other Monetary Obligationfollowing Adjudication of GuiltRule 26.10 Consecutive or Concurrent SentencesRule 26.11 Re-SentencingRule 26.12 Entry of Judgment and Sentence; Warrant ofAuthority to Execute Sentence

Rule 27.4

ProbationGranting ProbationModification and Clarification of Conditions andRegulationsExtension of Term of Probation; Termination;Order of DischargeInitiation of Revocation Proceedings; Securingthe Offender's Presence; ArrestInitial Appearance After ArrestRevocation of ProbationOther Proceedings

Rule 27.Rule 27.1Rule 27.2Rule 27.3

Rule 27.5Rule 27.6Rule 27.7


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MISSISSIPPI RULES OF CRIMINAL PROCEDURE

Rule 1 General Provisions

Rule 1.1 Scope.These rules are the Mississippi Rules of Crimal Procedure and shal governthe procedure in all crimal proceedigs in all courts within the State ofMississippi, except traffic violations in justice and municipal courts. They maybe cited as "MRCrP _ "

Rule 1.2 Purpose and Construction.These rues are to be interpreted to provide for the just and speedydetermiation of every crimial proceedig, to secure simplicity in procedureand fairness in admiistration, to eliate unjustifiable delay and expense, andto protect the fundamental rights of the individual while preserving the publicwelfare.

Rule 1.3 Computation and Enlargement of Time.(a) Computation. In computig any period of tie prescribed or alowed bythese rues, by order of court, or by any applicable statute, the day of the act,event, or default from which the designated period of tie begins to run shallnot be included. The last day of the period so computed shall be included,unless it is a Saturday, a Sunday, or a legal holiday, as definedby statute, or anyother day when the courthouse or the clerk's office is in fact closed, whetherwith or without legal authority, in which event the period runs unti the end ofthe next day which is not a Saturday, a Sunday, a legal holiday, or any other daywhen the courthouse or the clerk's office is closed. When the period of tieprescribed or alowed is less than seven days, intermediate Saturdays, SUndays,and legal holidays shall be excluded in the computation. In the event any legalholiday falls on a Sunday, the next followig day shall be a legal holiday.(b) Enlargement. When by these rules or by notice given thereunder or byorder of court an act is requied or alowed to be done at or with a specifiedtie, the court for cause shown may at any tie in its discretion:

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(1) with or without motion or notice order the period enlarged if requesttherefor is made before the expiration of the period origialy prescribedor as extended by a previous order, or

(2) upon motion made after the expiration of the specified period permitthe act to be done where failure to act was the result of excusableneglect.

But a court may not, except as provided elsewhere in these rules, extend thetie for makig a motion for new trial, for takig an appeal, or for makig amotion for a judgment of acquittal pursuant to Rule 20.(c) Unaffected by Expiration of Term. The doing of any act or the takig ofany proceedig permitted by these rules is not affected or lited by theexistence or expiration of a term of court.(d) Motions. A written motion, other than one which may be heard ex parte,and notice of the hearing thereof shall be served not later than five days beforethe tie fixed for the hearing, unless a different period is fixed by these rules orby order of the court. Such an order may for cause shown be made on ex parteapplication. Except as otherwse provided in these Rules or permitted by thecourt, opposing affidavits must be served not later than one day before thehearing.(e) Additional Time Mter Service by MaiL. Whenever a party has the rightor is requied to do some act or take some proceedigs within a prescribedperiod after the service of a notice or other paper and the notice or paper isserved by mai, three days shall be added to the prescribed period.

Rule 1.4 Definitions.Unless otherwse defined in a particular rue, whenever they appear in theserules, the terms below shal have the following meanings:(a) "Charge" means a complaint, indictment, or bil of information.(b) "Complaint" includes crimal affdavit.(c) "Indictment" includes a tre bil from the grand Jur or a bil ofinformation in lieu thereof.

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(d) "Law Enforcement Offcer" means a law enforcement officer certifiedpursuant to Miss. Code Ann. 45-6-11, or any other officer, employee or agentof the State of Mississippi or any political subdivision thereof who is requiedby law to:

(1) maintain public order;(2) make arrests for offenses, whether that duty extends to al offenses oris lited to specific offenses; or

(3) investigate the commssion or suspected commission of offenses.(e) "Offense" means conduct for which a sentence to a term of imprisonment,or the death penalty, or for which a fine is provided by any law of ths state orby any law, local law, or ordinance of a political subdivision of this state.(f) "Person" means a human being, and where appropriate, a public or privatecorporation, an unicorporated association, a partnership, a simar legal entity,a government or a governmental instrmentalty.

(g) "Prosecutig Attorney" means any municipal or county attorney, distrctattorney, attorney general, and others acting under their specific diection andauthority, or such other person appointed or charged by law with theresponsibilty for prosecuting an offense.

(h) "Sentencing Court" includes the court which imposed or imposes sentenceand any court to which jurisdiction has been transferred.(i) "Field Supervsor" includes those actig under the specific diection andauthority of the supervisor or supervsing agency.

Rule 1.5 Information on Each Pleading and Motion.All pleadigs, motions, or other applications to the court shall bear the name,address, and office phone number of the attorney who wi tr the case and, ifdifferent from the attorney who wi tr the case, the name, address, and officephone number of the attorney who wi be prepared to argue the pleadig,motion or other application.

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Rule 1.6 Size of Paper.All pleadigs and other papers fied in any proceedig governed by these ruesshall be on paper measuring 8 1/2 inches x 11 inches. Notwthstandig theforegoing, exhibits or attachments to pleadigs may be folded and fastened topages of the specified size. An exhibit or attachment not in compliance withthe foregoing provisions may be filed only if it appears that compliance is notreasonably practicable.

Rule 1.7 Servce of Copies and Certificate of Servce.Unless otherwse ordered by the court, all pleadigs, motions, or applicationsto the court, except the initial pleadig or indictment, must be served by anyform of service authorized by Rule 5 of the Mississippi Rules of CiviProcedure on all attorneys of record for the parties, or on the pares when notrepresented by an attorney, and the person filg the same shal also fie anorigial certificate of service certifying that a correct copy has been provided tothe attorneys or to the parties, the manner of servce, and to whom it wasserved. Except as alowed by this rule or allowed by the court for good causeshown, the clerk may not accept for filg any document which is notaccompanied by a certificate of service.

Rule 1.8 Interactive Audiovisual Devices(a) General Provisions. When the appearance of a defendant or counsel isrequied in any court, subject to the provisions of this Rule, the appearancemay be made by the use of an interactive audiovisual device, including videoconferencing equipment. An interactive audiovisual device shal at a miniumoperate so as to enable the court and all parties to view and converse with eachother simultaneously.

(b) Requirements. In using an interactive audiovisual device the followig arerequired:(1) a full record of the proceedigs shall be made as provided inapplicable statutes and rules;(2) the court shall determine that the defendant knowigly, intellgently,and voluntariy agrees to appear at the proceeding by an interactiveaudiovisual device; and

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(3) provisions shall be made to allow for confidential communicationsbetween the defendant and counsel prior to and during the proceedig.(c) Proceedings. Appearance by interactive audiovisual device, includigvideo conferencing, may be permitted in the discretion of the court at anyproceedig except that:

(1) written stipulation of the parties is requied in all proceedigs prior tothe commencement of the proceedig, except in intial appearance andnot guity arraignment;

(2) this Rule 1.8 shal not apply to any trial, evidentiary hearing, orprobation violation hearig; and

(3) ths Rule 1.8 shall not apply to any felony sentencing.Rule 1.9 Local Court Rules(a) When Permissible. The conferences of circuit and county cour judgesmay hereafter make local rules and amendments thereto concerng practice intheir respective courts not inconsistent with these rues. Likewise, any court byaction of a majority of the judges thereof may hereafter make local rules andamendments thereto concerning practice in their respective courts notinconsistent with these rules. In the event there is no majority, the senior judgeshall have an additional vote.(b) Procedure for Approval. All such local rues adopted before beingeffective must be submitted to the Supreme Court of Mississippi for approval.Upon receipt of such proposed rues and prior to any approval of the same, theSupreme Court may submit them to the Supreme Court Advisory Committeeon Rules for advice as to whether any such rules are consistent or in conflctwith these rues or any other rues adopted by the Supreme Court.(c) Publication. All local rues hereinafter approved by the Supreme Courtshall be submitted for publication on the court's website and in the SouthernReporter (Mssissippi cases).

Rule 2 Commencement of Criminal Proceedings

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Rule 2.1 Commencement of Criminal Proceedings.(a) Commencement. All crimal proceedigs shall be commenced either bycomplait or by indictment.(b) Complaint. A complait is a written statement made upon oath before ajudge or officer authorized by law to administer oaths, settig forth essentialunderlying facts and circumstances constitutig an offense and allegig that thedefendant committed the offense.

CommentUnder Rule 2.1 (a), the procedure for commencing a crial proceedingis either by complaint or by indictment. By definition, "complaint" includes"affidavit," and "indictment" includes "information in lieu thereof." See Rule_ This is in accord with Article 2, Section 27, of the MississippiConstitution of 1890, and consistent with Miss. Code Ann. 99-1-7. Whilethe usual procedure for commencing a crimnal action is by complait, thegrand jury also may act on matters presented to it without there being acomplait, and thus the initial chargig instrment commencing the action isthe indictment. See Rule

Under Rule 2.1(b), a complait must be made under oath, and mustallege the essential underlying facts and circumstances which establish that acrial offense has been committed and that the defendant committed theoffense.

Rule 2.2 Duty of Judge upon Making of a Complaint.(a) Probable Cause Determination. If it appears from the complait and theevidence, if any, submitted that there is probable cause to believe that theoffense complaied of has been committed and that there is probable cause tobelieve that the defendant commtted it, the judge shall proceed under Rule 3.1.(b) Evidence. The findig of probable cause shall be based upon evidence,which may be hearsay in whole or in part provided there is a substantial basisfor believing the source of the hearsay to be credible and for believing thatthere is a factual basis for the information furnished. Before ruling on arequest for a warrant, the judge may examie under oath the complainant andany witnesses the complaiant may produce.

Comment

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Rule 2.2(a) requies the judge to determe from the complait and anyevidence submitted therewith whether there is probable cause to believe that anoffense has been commtted and whether there is probable cause to believe thatthe defendant commtted it. Rule 2.2(b) allows the probable causedetermiation to be made in whole or in part based on credible hearsay, andallows the judge to examie under oath the complainant and any witnesses thecomplaiant may produce.

The puroses served by Rule 2.2 are in accord with Mississippi law andthe mandates of the Fourth Amendment to the United States Constitution. Asthe United States Supreme Court stated in Giordenello v. United States, 357 U.S.480,486, 78 S.Ct. 1245, 1250,2 L.Ed.2d 1503 (1958):

The purpose of the complaint, then, is to enable the udge) ... todetermie whether the 'probable cause' requied to support a warrantexists. The udge) must judge for himself the persuasiveness of the factsrelied on by a complai(ant) to show probable cause. (The judge) shouldnot accept without question the complainant's mere conclusion that theperson whose arrest is sought has committed a crie.

These Rules, includig Rule 2.2, do not disturb the special proceduresestablished by Miss CODE ANN. 99-3-28, regardig ''Warrants againstteachers, jail officers or counselors at adolescent offender programs," whichprovides in part:(B) efore an arrest warant shall be issued agaist any teacher who is alicensed public school employee as defined in Section 37-9-1, a certifiedjai officer as defined in Section 45-4-9, a counselor at an adolescentoffender program created under Section 43-27-201 et seq., or a swornlaw enforcement officer with ths state as defined in Section 45-6-3 fora crinal act, whether misdemeanor or felony, which is alleged to haveoccurred whie the teacher, jai officer, counselor at an adolescentoffender program or law enforcement officer was in the performance ofofficial duties, a probable cause hearing shall be held before a circuitcourt judge. The purose of the hearing shal be to determe if adequateprobable cause exists for the issuance of a warrant. Al parties testifyingin these proceedigs shall do so under oath. The accused shall have theright to enter an appearance at the hearing, represented by legal counselat his own expense, to hear the accusations and evidence against hi; hemay present evidence or testify in his own behalf.

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Rule 3 Arrest Warrant or Summons upon Commencement of CriminalProceedingsRule 3.1 Issuance of Arrest Warrant or Summons.(a) Issuance. Upon a findig of probable cause made pursuant to Rule 2.2, orupon a finding that such a determiation has previously been made, the judgeshall immediately cause to be issued a summons or an arrest warrant.(b) Summons; Subsequent Issuance of Arrest Warrant. (1) Summons. If thedefendant is not in custody, if the offense charged is bailable as a matter ofright, and if there is no reason to believe that the defendant wi not respond tothe summons, a summons may be issued, at the sole discretion of the issuingjudge.(2) Subsequent Issuance if Arrest Warrant. If a defendant who has been dulysummoned fails to appear, or if after issuance of a summons there is reasonablecause to believe that the defendant wi fail to appear, or if for any reason thesummons cannot be served or delivered, an arrest warrant shall issue.(c) Docketing Case. A case shal be docketed upon service of a summons orupon the defendant's arrest.(d) Traffic Citations Unaffected. The use of tickets, citations, or affdavitsfor traffic violations shal be as otherwse provided by law.

CommentRule 3.1 (a) provides that, upon a finding of probable cause pursuant toRule 2.2, the judge shall cause to be issued a summons or an arrest warrant.Rule 3.1 (a) also contemplates that a summons or warrant shall issue upon a

finding that a probable cause determiation has previously been made, forexample by a competent court of another jurisdiction. See Miss. Code Ann. 99-21-1 (''Warrant for arrest of fugitives") (Any conservator of the peace, uponcomplait on oath made before him, or on other satisfactory evidence, that anyperson withn this state has committed treason, felony, or other crie in someother state or territory, and has fled from justice may issue a warrant for thearrest of such person as if the offense had been committed in this state). Rule3.1 (a) further recognizes that it is within the power of the court to issue morethan one summons or arrest warrant in a particular case, as needed, based upona single complaint.

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Rule 3.1 (b) gives the judge discretion to cause a summons to be issued ifthree criteria are met: if the defendant is not in custody; if the offense isbaiable as a matter of right; and if there is no reason to believe the defendantwi not respond to a summons. Hence the judge is permtted to cause asummons to be issued in those cases in which an arrest warrant is not necessarto secure the presence of the defendant and there is little apprehension that thedefendant wi flee. Rule 3.1 (b) makes no distinction between felony andmisdemeanor cases.

There are many reasons to use a summons in lieu of an arrest warrant inappropriate cases. The use of a summons reduces the burden that the crimaljustice system places on those accused of crime. Moreover, whie in custody, adefendant represents a heavy financial burden on the judicial system. Alindications from other jurisdictions and the federal system are that the use of asummons in lieu of an arrest warrant has been operationaly successful, and itsuse is recommended where indicated. The approach taken here is consistentwith the release standards favoring recognizance bonds set out in Rule _'

While there is no specific sanction imposed agaist one who fails torespond to a summons, Rule 3.1 (b) (2) makes it clear that should the defendantfai to respond, or if there later arses a reasonable lielihood that the defendantwi not respond, or if the summons cannot be served, an arrest warrant shallissue.

Rule 3.1 (c) faciltates the trackig and management of cases by providigthat a case shall be docketed upon the service of a summons or upon thedefendant's arrest.Rule 3.1 (d) provides that these rules do not affect the use of tickets,citations, or affdavits for traffic violations. Traffic violations are governed bystatute, includig the Uniform Traffic Ticket Law, Miss. Code Ann. 63-9-21,and not, for example, by Rules 3.1 and 3.2 herein.

Rule 3.2 Contents of Arrest Warrant or Summons; Execution, Return;Arrest without a Warrant.(a) Arrest Warrant. An arrest warrant issued upon a complait shall be signedby the issuig judge. The arrest warrant shal contai the complete name of thedefendant, or if the name is unknown, any name or description by which thedefendant can be identified with reasonable certaity; it shall state the offense

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with which the defendant is charged; and it shal command that the defendantbe arrested and brought before the issuing judge, or, if the issuig judge isunavailable, before the nearest or most accessible judge having jurisdiction. Ifthe defendant is baiable as a matter of right, the arrest warrant may state theconditions of the defendant's release on recognizance or an amount of an. appearance bond or a secured appearance bond predetermied by the court.(b) Summons. The summons shal be in the same form as the arrest warrant,except that it shall summon the defendant to appear at a stated tie and placewithin a reasonable tie from the date of issuance. At the discretion of theissuing judge, the summons may command the defendant to report to adesignated place to be photographed and fingerprinted prior to appearance inresponse to the summons. Failure to so report for photographing orfingerprintig shall result in issuance of a warrant for the defendant's arrestunless good cause for such failure is shown. If, upon the defendant'sappearance, the defendant has not been photographed and fingerprinted, theissuig judge shall diect that the defendant be promptly photographed andfingerprin ted.(c) Execution of Arrest Warrant, Return. (1) By Whom. The arrest warrantshall be diected to and may be executed by any officer authorized by lawwithin the State of Mississippi.

(2) Manner of Execution. An arrest warrant shall be executed by arrest of thedefendant.(3) Return. The offcer executig an arrest warrant shal endorse thereon themanner and date of execution, shal subscribe the offcer's name, and shalpromptly return the arrest warrant to the clerk of the court specified in thearrest warrant.(d) Service of Summons. The summons may be served by any officerauthoried by law in the same manner as a summons in a civil action, exceptthat service may not be by publication. In addition, at the offcer's discretion, asummons may be served by certified mai, requing a signed receipt or someequivalent thereof. In the event the summons is served by certified mai, returnof the receipt signed by the defendant shal be pria facie evidence of service.The offcer serving the summons shal make return of the summons in thesame manner as provided in Rule 3.2(c)(3) for making return of an arrestwarrant.

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(e) Defective Arrest Warrant. An arrest warrant shall not be invaldated norshall any person in custody thereon be discharged because of a defect in form.The arrest warrant may be amended to remedy such defect.(f) Cancellation. At the request of the prosecuting attorney any unexecutedwarrant shall be returned to the judge by whom it was issued who shall cancelit.(g) Reissuance. At the request of the prosecutig attorney made at any tiewhile the complait is pencfg, a warrant retuned unexecuted and notcancelled or a summons returned unserved or a duplicate thereof may bedelivered by the judge to any authorized person for execution or service.(h) Arrest without a Warrant. A law enforcement offcer or private personmay arrest a person without a warrant as provided by law. In all cases ofarrests without a warrant, the person makig such arrest must inform theaccused of the object and cause of the arrest, except when the accused is in theactual commission of the offense, or is arrested on pursuit. A private personmakig an arrest shall deliver the person arrested without unnecessary delay toa judge or law enforcement officer. If the person arrested is taken to a lawenforcement offcer, the officer shall proceed as provided in Rule 5.1.

CommentRule 3.2(a) provides that an arrest warrant based on a complaint must be

signed by the issuig judge, on a finding of probable cause; must contain thecomplete name of the defendant or some description by which the defendantcan be identified with reasonable certainty; must state the offense with whichthe defendant is charged; and must command the defendant be arrested andbrought before the issuig judge, if available, or otherwse before the nearest ormost accessible judge havig jurisdiction. The name or description are mattersof form which may be amended as provided in Rule 3.2(e).Where circumstances dictate issuance of an arrest warrant rather than asummons, yet there is reason for use of recognizance release, Rule 3.2(a) gives

the issuig judge the flexibilty of allowig a personal recognizance release oncertain conditions as contemplated in Rules The release of anarrested defendant on recognance would not preclude the defendant's havingto appear at the initial hearing, but might preclude the defendant's spendig thenight in jail unnecessariy. Alternatively, the issuing judge has discretion to set

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an appearance bond or secured appearance bond in the warrant, if thedefendant is baiable as a matter of right.Rule 3.2(b) specifies that the defendant shal be requied to report at a

specified tie and place within a reasonable tie from the issuance of thesummons. The issuig judge has discretion to order that the defendant befingerprinted and photographed prior to appearance; if the summons doesdiect the defendant to so appear, the rule makes clear that faiure to complywi result in the issuance of a warrant for the defendant's arrest, unless "goodcause" is shown. Otherwse, the judge shall diect that the defendant bepromptly photographed and fingerprited on the defendant's appearance.

Rule 3.2(c)(1) states that an arrest warrant be diected to and executedby "any officer authorized by law within the State of Mississippi." Presently,Mississippi Law authorizes a broad range of officers to make arrests. See Miss.Code Ann. 99-3-1(1) ("Arrests for crimes and offenses may be made by thesheriff or his deputy or by any constable or conservator of the peace within hiscounty, or by any marshal or policeman of a city, town or vilage within thesame, or by any United States Marshal or Deputy United States Marshal, or,when in cooperation with local law enforcement offcers, by any other federallaw enforcement officer who is employed by the United States government,authorized to effect an arrest for a violation of the United States Code, andauthorized to carry a firearm in the performance of his duties."); 99-3-2(federal law enforcement officers' authority to make arrests). Rule 3.2(c)(2)provides that an arrest warrant is executed by arrest of the defendant and Rule3.2(c)(3) requies that an executed arrest warrant be endorsed, subscribed, andreturned promptlY to the specified clerk of court.

Rule 3.2(d) is designed to make service of the summons as easy andexpeditious as possible. The function of the summons is solely to apprise thedefendant of the charges and to notify the defendant to appear; accordingly,the rule provides that service may be made in the same manner as in a civilaction, except that service by publication is prohibited. The person servng thesummons should be guided by considerations of convenience and economy,as well as the lieliood that the defendant wil personally receive thenotification.

Under Rule 3.2(e), a mere defect in form wi not invalidate an arrestwarrant. Normally, aliases, fictitious names, and descriptions are matters ofform and may be amended if shown to be incorrect.

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Rule 3.2(f) provides that an unexecuted warrant shall be returned to andcancelled by the issuig judge at the request of the prosecutig attorney.Relatedly, Rule 3.2(g) provides that at the request of the prosecutig attorneymade while the complait is pending, a warrant returned unexecuted and notcancelled, or a summons returned unserved, (or a duplicate of either), may bedelivered by the judge for execution or service.

Rule 3.2(h) states that a law enforcement offcer or private person maymake warrantless arrests as provided by law. Miss. Code Ann. 99-3-7 (1)provides that:An officer or private person may arrest any person withoutwarrant, for an indictable offense commtted, or a breach of the peacethreatened or attempted in his presence; or when a person hascommitted a felony, though not in his presence; or when a felony hasbeen committed, and he has reasonable ground to suspect and believethe person proposed to be arrested to have committed it; or on acharge, made upon reasonable cause, of the commission of a felony bythe party proposed to be arrested.

Warrantless arrests are also authorized by Miss. Code. Ann. 99-3-7(2) ("Anylaw enforcement officer may arrest any person on a misdemeanor chargewithout having a warrant in his possession when a warrant is in factoutstanding for that person's arrest and the officer has knowledge throughofficial channels that the warrant is outstanding for that person's arrest.");Miss. Code. Ann. 99-3-7 (3) (warrantless arrests by law enforcement officersfor acts of domestic violence and related matters); Miss. Code Ann. 99-3-7(2)(a) and (4)(a) ("Any person authorized by a cour of law to supervise ormonitor a convicted offender who is under an intensive supervision programmay arrest the offender when the offender is in violation of the terms orconditions of the intensive supervision program, without having a warrant" onthe conditions requied therein.); Miss. Code. Ann. 99-3-15 (warrantlessarrest of escaped offender).

In all cases of arrests without a warrant, the person making such arrestmust inform the accused of the object and cause of the arrest, except when theaccused is in the actual commission of the offense or is arrested on pursuit.Because Mississippi law authorizes private persons to make warrantless arrests,it is important to note that Rule 3.2(h) requies a private person makig anarrest to deliver diectly the person arrested to a judge or law enforcementofficer; if the person arrested is taken to a law enforcement officer, the offcershall proceed as provided in Rule 5.1.13


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Rule 4 Search Warrants

Rule 4.1 Issuance of Search Warrants.(a) Definition of Search Warrant. A search warrant is a written order, in thename of the State, county, or municipality, signed by a judge authorized by lawto issue search warrants, diected to any law enforcement offcer as defined byRule _, commanding the officer to search for and seize a person orproperty. "Property" includes documents, books, papers, any other tangibleobjects, and information.(b) Persons or Property Subject to Search and Seizure.A search warrant authorized by ths rue may be issued for any of the followig:

(1) evidence of a crime;(2) contraband, fruts of crime, or other things crialy possessed;(3) property designed for use, intended for use, or which is being or hasbeen used in committig a crime;(4) a person who is the subject of an outstandig arrest warrant, or whois unlawfuly restrained.

(c) Hearsay. The finding that there is probable cause to believe that thegrounds for the application exist may be based upon hearsay evidence, in wholeor in part, provided that there is a substantial basis for believing the evidenceunder the totalty of the circumstances before the judge, includig thecredibilty of the informer and the basis of the informer's knowledge.Rule 4.2 Warrant on Mfidavit.(a) In General. A warrant other than under Rule 4.3 shal issue on swornaffidavit presented to the issuig judge authoried by law to issue searchwarrants, establishing grounds for issuig the warrant.(b) Examination. Before rulng on a request for a warrant, the judge mayfurther examie, under oath, the affant and any witnesses the affant mayproduce. Such additional sworn examination shal be recorded by a courtreporter, by recordig equipment, or preserved by other means, and shall beconsidered part of the affidavit for purposes of those proceedings; provided,

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however, that in reproducing any additional sworn testimony, theconfidentialty of confidential informants shal be preserved.(c) Issuance. If the judge is satisfied that probable cause to believe thatgrounds for the application exist, the judge shall issue a warrant namig ordescribing the person or property to be seized, and namig or describing theperson or place to be searched.

Rule 4.3 Warrant Upon Remote Communication Oral Testimony.(a) General Rule. When reasonable under the circumstances, a judge mayissue a warrant based upon sworn testiony communicated by telephone orother reliable electronic means. The findig of probable cause for a warrantupon such testiony may be based on the same kid of evidence as issufficient for a warrant upon affidavit.(b) Recording and Certification of Testimony. (1) Oath. When a telephonecaller informs the judge that the purpose of the telephone cal is to request awarrant, the judge shall immediately place under oath each person whosetestiony forms a basis of the application and each person applying for thewarrant.(2) Record. If a voice recordig device is available, the judge shall record bymeans of such device all of the call after the caller informs the judge that thepurose of the cal is to request a warrant. Otherwse, an accurate and completerecord shal be made by other means. If a voice recording device is used or astenographic record made, the judge shall have the record transcribed, shallcertify the accuracy of the transcription, and shall fie a copy of the originalrecord and the transcription with the court. If a record is made by other means,the judge shal fie a signed copy with the court.

(c) Application. The person who is requestig the warrant shal prepare adocument to be known as a duplicate origial warrant and shal read orotherwse transmit the contents of such duplicate original warrant verbati tothe issuing judge. If the applicant reads the contents of the proposed duplicateoriginal warrant, the judge shal enter what is so read on a document to beknown as the original warrant. If the applicant transmits the contents byreliable electronic means, the transmission may serve as the original warrant.(d) Modification. The issuig judge may modify the original warrant. Thejudge must transmit any modified warrant to the applicant by reliable electronic

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means or diect the applicant to modify the proposed duplicate original warrantaccordingly.(e) Issuance. If the judge is satisfied that there is probable cause to believethat the grounds for the application exist, the judge shall order the issuance of awarrant and imediately sign the origial warrant, enter on its face the exactdate and time it is issued, and transmit it by reliable electronic means to theapplicant or directi the person requestig the warrant to sign the judge'sname on the duplicate original warrant.(f) Contents. The contents of a warrant upon remote communication shall bethe same as the contents of a warrant upon affidavit.(g) Additional Rule for Execution. The person who executes the warrantshall enter the exact tie of execution on the face of the duplicate origialwarrant.(h) Motion to Suppress Precluded. Absent a finding of bad faith, evidenceobtaied pursuant to a warrant issued under ths Rule 4.3 is not subject to amotion to suppress on the ground that the circumstances were not such as tomake it reasonable to dispense with a written affidavit.

Rule 4.4 Contents of Search Warrants; Time of Execution; IncidentalAuthority.(a) Contents of Search Warrant. The search warrant shall be diected to andserved by a law enforcement offcer. It shall command such officer (or suchofficer's designees) to search, within a specified tie not to exceed ten (10)days, the person or place named for the person or property items specified andto bring an inventory thereof before the court. The warrant shall designate thecourt to which the warrant and an inventory of the property specified shall bereturned. The judge shall endorse the warrant, showig the hour, date, and thename of the law enforcement officer to whom the warrant was delivered forexecution, and a copy of such warrant and the endorsement thereon shall beadmissible in evidence in the courts.(b) Time of Execution. A search warrant must be executed in the daytimeunless the issuig judge states in the warrant, according to the character of theapplication, that it may be executed any tie of the day or night.

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(c) Authority to Break and Enter. To execute the warrant, the lawenforcement officer may break into any house, dwellng, vehicle, or structure,or any part thereof, or anythg therein, if:(1) after notice of the officer's authority and purpose, the officer receivesno response within a reasonable tie;(2) after notice of the officer's authority and purose, the offcer isrefused admittance; or

(3) the particular circumstances and the objective articulable facts aresuch that a reasonable officer would believe that givig notice of theofficer's authority and purose before entering would endanger thesafety of any person or result in the destrction of evidence.

(d) Incidental Seizure of other Property. A law enforcement offcerexecuting a search warrant may seize any property discovered in the course ofthe execution of the warrant if the officer has reasonable cause to believe thatthe item is subject to seizure under subsection 4.1 (b) of this Rule, even if theproperty is not enumerated in the warrant.(e) Photographs, etc. A law enforcement officer executig a search warrantmay make or cause to be made photographs, measurements, impressions orscientific tests.(f) Incidental Search of a Person. A law enforcement officer executig asearch warrant diectig a search of any premises or vehicle may search anyperson present on the premises or vehicle if either of the followig applies:

(1) it is reasonably necessary to protect the officer or others from the useof any weapon that may be concealed upon the person; or(2) it reasonably appears that property or items enumerated in the searchwarrant may be concealed upon the person.

Rule 4.5 Execution and Return with Inventory; Custody of Propert;Return of Papers to Court.(a) Receipt and Inventory. The law enforcement offcer taking propert oritems under the search warrant shall give to the person from whom or fromwhose premises the propert was taken, or shall leave at the place from which

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the property was taken, a copy of the search warrant endorsed with a copy ofan inventory of the property taken. The inventory shal be made in thepresence of the person from whose possession or premises the property wastaken, if that person is present, and shall be verified by the law enforcementofficer executing the search warrant.(b) Return of Papers to Court. The law enforcement officer executig thesearch warrant shal promptly return the search warrant, along with anyinventory of property seized, to the court specified in the search warrant, whoshall forward the documents to the appropriate clerk for retention. Unexecutedsearch warrants shall be retuned to and may be destroyed by the court.(c) Custody of Property. All property or things taken pursuant to a warrantshall be retained in the custody of the seizing offcer or agency, subject to theorder of the court in which the warrant was issued, or any other court in whichsuch property or things is sought to be used as evidence.

Rule 4.6 Unlawfully Seized Propert; Disposition of Seized Propert.(a) Motion for Return of Unlawfully Seized Property. A person aggrievedby an unlawful search and seizure may move the court for the retun of theproperty seized on the ground that the person is entitled to lawful possessionof the property which was ilegally seized. The judge shal receive evidence onany issue of fact necessary to the decision of the motion. If the motion isgranted, the property shall be restored. If a motion for return of property ismade or comes on for hearing after an indictment or information is filed, itmay be treated also as a motion to suppress evidence.(b) Motion to Suppress. A motion to suppress may be made afterindictment. However, any evidence that is seized pursuant to a search warrantshall not be suppressed as a result of a violation of these Rules except asrequied by the United States Constitution or the Constitution of the State ofMississippi.

(c) Disposition of Seized Property.(1) GenerallY. When property is seized pursuant to a search warrant, it shalbe retained under the direction of the judge. If seized property is not to beused as evidence, or is no longer needed as evidence, it shal be disposed of asfollows.

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(2) Propert Governed ry Statute. If there is a specific statute concerningdisposition of the seized property, disposal of the property shall be inaccordance therewith.(3) Procedure in Absence if Statutory Provisions. If there is no specific statuteconcernig disposition of the seized property, the seized propert shall bereturned to the owner, unless:

(i) a statute declares the property to be contraband, in which event thecourt shall order the property destroyed, if the court determies thatdestruction is in the public interest; otherwse() if the court does not order destrction of contraband propert, or ifthe owner of noncontraband property does not claim it with sixmonths after it is no longer needed as evidence, the court shal order:(A) sale of the property at a public sale or auction, if the court concludesthat such wi probably result in a bid greater than the costs of the sale.The proceeds of the sale shall be admiistered by the court; or(B) if the court concludes that the cost of a public sale would probablyexceed the highest bid, the court may order the property transferred to apublic or a nonprofit institution or destroyed, or may otherwse ordersuch disposition as it deems appropriate.

(4) Motions; Ex Parte Orders. The court may, on its own motion or the motionof any interested person, render an ex parte order for the disposition of propertyas herein provided. Otherwse, the court in its discretion may requie a motionfrom the apparent owner or the person in possession of the property at thetie of the seizure.

(5) Destruction if Controlled Substances. Notwthstanding any provision of law tothe contrary, an official laboratory may destroy any controlled substance,controlled substance paraphernalia, or both, in its possession without an orderof court after a period of five years from the date of seizure. Any laboratoryintendig to destroy a controlled substance, controlled substance paraphernalia,or both, pursuant to this subsection shall give the seizing agency and thedistrict attorney thirty days written notice filed with the clerk prior to suchdestrction. If the seizing agency or the district attorney objects to suchdestrction, no destrction shall occur.

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Rule 5 Arrest and Initial AppearanceRule 5.1 Procedure upon Arrest.(a) Telephone Call. Any person under arrest shall be afforded a reasonableopportunity to make a telephone call to, or otherwse make effectivecommunication with, any person the accused may choose, without undue delay.(b) On Arrest without a Warrant. A person arrested without a warrant:

(1) May, unless prohibited by law, be notified in writig by a lawenforcement officer to appear either at a specified tie and place or at atie and place set forth in a subsequent notice and may be released; or

(2) Shall be released by a law enforcement offcer upon execution of anappearance bond set according to Rule , and directed toappear either at a specified tie and place or at a time and place set forthin a subsequent notice; or(3) If not released pursuant to subsections (b)(1) or (b)(2) above, theaccused shall be taken without undue delay, except in no event later thanforty-eight (48) hours after arrest, before a judge who shall proceed asprovided in Rule 5.2 for initial appearances. If the person arrested is nottaken before a judge as so requied, then, unless the offense for whichthe person was arrested is not a bailable offense, the person shall bereleased upon execution of an appearance bond in the amount of theminium bond set in Rule_, and shal be diected to appear either ata specified tie and place or at a tie and place set forth in a subsequentnotice; or(4) In the event the defendant is released on the miimum bond amountprovided in the bail schedule, the prosecutig attorney may file a motionwith the court to reconsider the bond amount and the conditions ofrelease, and the procedures thereafter shall be in accordance with Rule

If a person arrested without a warrant has been released and diected to appearwithout havig been taken before a judge for a probable cause determiation,the officer or private person who made the arrest shal without undue delaymake a complaint before a judge as provided in Rule 2.1. If the judge findsprobable cause, the complaint shall be served on the defendant in the manner20


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provided in Rule 3.2 for service of summons, or shall be delivered to thedefendant at the time of the defendant's appearance. If no complait is fied, orif the judge does not find probable cause, the proceedigs shall be termatedand the person arrested shall promptly be notified and advised that anappearance wi not be requied. Notification shal be made by the judge orclerk of the court by mai diected to the defendant at the defendant's lastknown address.(c) On Arrest with a Warrant.(1) If provision therefor has been made by the judge issuing the arrest warrant,a person arrested with a warrant shal be released on an appearance bond in theamount set in accordance with Rule _ and diected to appear either at aspecified tie and place or at a tie and place set forth in a subsequent notice.

(2) If the person arrested cannot meet the conditions of release provided in thewarrant, or if no such conditions are prescribed,(i) If such person was arrested pursuant to a warrant issued on acomplaint, the accused shall be taken without undue delay, except in noevent later than seventy-two (72) hours after arrest, before a judge, whoshall proceed as provided in Rule 5.2. If the person arrested has not beentaken before a judge as requied herein, unless the charge upon whichthe person was arrested is not a baiable offense, such person shal bereleased upon execution of an appearance bond in the amount of themium bond set forth in Rule _ and shall be diected to appeareither at a specified tie and place or at a tie and place set forth in asubsequent notice, or() If such person was arrested pursuant to a warrant issued upon anindictment, the accused shall be taken without undue delay before acircuit judge, who shall proceed as provided in Rules _'

(3) Upon request, the defendant shal be given a copy of the charges.Comment

Rule 5.1 (a) gives official sanction to common existig practice. Theopportunity to make a telephone cal represents the mium requiement,and should therefore not be read to deny the appropriate use of additionalmeans of communication, electronic or otherwse. Fundamental fainessdictates that a person who has been taken into custody be allowed tocommunicate to another that the accused is being held by the police and

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charged with a crime. Rule 5.1(a) thus serves to protect an accused's state andfederal constitutional rights to bai, counsel, and due process.Rule 5.1 (b) lists the options avaiable to law enforcement offcers in the

case of warrantless arrests. An offcer may: (1) release the offender on personalrecognizance and issue a notice requiing the person to appear at a specified orsubsequently scheduled time and place; or (2) release the offender on executionof an appearance bond set accordig to Rule _ and diect the person toappear at a specified or subsequently scheduled tie and place; or (3) take theoffender into custody and provide the person with an opportunity to make bai.A person may not be released on recognizance where prohibited by law, suchas Miss. Code Ann. 99-5-37 ("Mandatory appearance in domestic violencecases. In any arrest for a misdemeanor which is an act of domestic violence, asdefined in Section 97-3-7, no bai shall be granted unti the person arrested hasappeared before a judge of the court of competent jurisdiction. The defendantshall be brought before a judge at the first reasonable opportunity, not toexceed twenty-four (24) hours from the tie of the arest. In calculatig thetwenty-four (24) hours, weekends and holidays shall be included. Theappearance may be by telephone.").

Under Rule 5.1 (b) (3), if a person is taken into custody, the person shalbe taken without undue delay, and in no event later than forty-eight (48) hoursafter arrest, before a judge who shall proceed with an initial appearance asprovided in Rule 5.2. If the person arrested is not taken before a judge withinforty-eight (48) hours as so requied, the person detained must be released onexecution of an appearance bond in the miimum amount set pursuant to Rule_ and diected to appear at a specified or subsequently scheduled tie andplace. Rule 5.1(b)(3) conforms to the United States Supreme Court's holdingsin Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854 (1975), and Riverside v. Mcuughlin,500 U.S. 44 (1991).

Pursuant to Rule 5.1(b)(4), if a person arrested without a warrant hasbeen released and diected to appear without having first been taken before ajudge, the officer or private person who made the arrest must "without unduedelay" make a complaint before a judge as provided in Rule 2.1. If the judgefinds probable cause, the complait may be given to the defendant at thedefendant's first appearance or may be served on the defendant as provided inRule 3.2. Under this procedure, many, if not most, defendants wi make theirfirst court appearance at arraignment, or perhaps even at trial if arraignment iswaived. In the event no complait is fied or probable cause for the warrantlessarrest is not found, the proceedigs shall be termiated and the judge or court

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clerk must promptly notify the person by mai that appearance in court wi notbe requied.Under Rule 5.1(c), a person arrested pursuant to a warrant is in a

different situation. If the warrant is issued on a complaint or an indictment,there has been an ex parte probable cause determiation by a judge or grandjury. The issuig judge wi also usually have set conditions of release. Evenso, if the person cannot meet the conditions of release, or if no such conditionsare prescribed, a person arrested pursuant to a warrant issued on a complait isentitled to go before a judge within 72 hours after arrest for an initialappearance; if the person so arrested is not taken before a judge within 72hours, the person must be released on execution of an appearance bond in themiimum amount set pursuant to Rule _ and diected to appear at aspecified or subsequently scheduled tie and place. If a person is arrestedpursuant to a warrant issued on an indictment, the authority to review releaseconditions is reserved to the circuit court, which must proceed without unduedelay.

Rule 5.2 Initial Appearance.(a) Generally. Every person in custody and not under indictment shal betaken, without unnecessary delay and in accordance with Rule 5.1, before ajudge for an initial appearance. At the defendant's initial appearance, the judgeshall:

(1) Ascertain the defendant's tre name and address, and amend theformal charge if necessary to reflect this information, instrcting thedefendant to notify the court promptly of any change of address;(2) Inform the defendant of the charges and provide the defendant witha copy of the complaint; and(3) If the arrest has been made without a warrant, determie whetherprobable cause exists to believe that the defendant committed thecharged offense, in accordance with the procedures for making aprobable cause determation provided in Rule 2.2(a). If the judge findsthere is probable cause, a complait shall promptly be prepared, fied,and served on the defendant. If the judge finds no probable cause forthe warrantless arrest, or if the judge fais to make a probable causedetermination, the defendant shall be released.

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(b) Further Requirements. At the defendant's intial appearance, the judgeshall also advise the defendant of the followig:(1) That the defendant has the right to remai silent and that anystatements made may be used against the defendant;(2) If the defendant is unrepresented, that the defendant has the right toassistance of an attorney, and that if the defendant is unable to afford anattorney, an attorney wi be appointed as required by law;(3) That the defendant has the right to communicate with an attorney,famiy or friends, and that reasonable means wi be provided to enablethe defendant to do so; and

(4) The conditions under which the defendant may obtai release, if any.(c) Felony Cases. When a defendant is charged by complaint withcommission of a felony, the judge shall also:

(1) Inform the defendant of the right to demand a preliary hearingand the procedure by which that right may be exercised; and(2) If so demanded, set the tie for a preliary hearig in accordancewith Rule 6.1.

(d) Initial Appearance Not Required. In all cases where the defendant isreleased from custody, or has been indicted by a grand jur, the defendant shallnot be entitled to an initial appearance.

CommentThe purpose of Rule 5.2 is to insert the judicial process between thepolice and the defendant at the earliest practicable tie in order to minimizethe effects of carelessness, abuse of power, or unavoidable error in the policefunction. Rule 5.2 insures procedural compliance with Miranda v. Arizona, 384U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and Escobedo v. Illinois, 378 U.S.478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), as well as provides for the promptdetermiation of the conditions for release. This contiues the policycontained in Miss. Code Ann. 99-3-17 and prior URCCC 6.03. Rule 5.2(a)dispenses with this procedure where the defendant has already been released orhas been indicted. See also Rule 5.2(d). This liewise contiues the ruepreviously contaied in URCCC 6.05.

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Subsection (a)(l) assures the formal accuracy of the defendant's nameand address in the official records. Subsection (a)(2) assures that the defendantis properly advised of the charges, which can be accomplished by giving thedefendant a copy of the complait. Subsection (a)(3) provides for a probablecause determiation in cases of arrest without a warrant employing theprocedures provided in Rule 2.2. If probable cause is found, a complaint shallpromptly be prepared, fied, and served on the defendant. If no probable causeis found, or if no probable cause determation is made, the defendant shall bereleased.

Rule 5.2(b) (1) requires the judge to advise the defendant of the right toremain silent. Under subsection (b) (2), the judge must give notice to thedefendant of the right to counsel and of the right to appointed counsel underRule 7.1. It is neither intended nor expected that a determiation of thedefendant's right to appointed counsel would be made or counsel appointed atthe intial appearance. Under subsection (b) (4), the judge is requied todetermie the conditions of release. The range of possible conditions and thestandards and procedures are set forth in Rule _'

Rule 5.2(c)(4) imposes the additional burden at the initial appearance ofinformig a defendant charged with a felony but not yet indicted of the right todemand a preliary hearing and, if demanded, of settig a tie for thehearing in accordance with Rule 6.1. Under Rule 5.2(a)( 4), if the defendant hasbeen released from custody, or has been indicted, there is no right to aprelinary hearing. See Rule 6.1 (a).

Pursuant to Miss. Code Ann. 99-1-23, with the defendant's consent,initial appearances may be held over closed circuit television. Specifically thestatute provides that "(w)hen the physical appearance in person in court isrequired of any person who is represented by counsel and held in a place ofcustody or confinement operated by the state or any of its politicalsubdivisions, upon waiver of any right such person may have to be physicalypresent, such personal appearance may be made by means of closed circuittelevision from the place of custody or confinement."Rule 5.2(d) also underscores that a defendant who has been releasedfrom custody, or who has been indicted, is not entided to an intial appearance.

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Rule 6.1 Right to a Preliminary Hearing; Waiver; Postponement.(a) Right to a Preliminary Hearing. A defendant who has been releasedfrom custody, or who has been indicted by a grand jur, shall not be entitled toa prelinary hearing. Otherwise, a defendant charged by complaint with thecommission of a felony and in custody may demand a preliar hearing. Ifdemanded, the preliary hearig shall commence with thirty (30) daysfollowig the demand for preliary hearig unless:

(1) The complait has been dismissed;(2) The hearig is subsequently waived;(3) The hearig is postponed as provided in subsection (d); or(4) Before commencement of the hearing, the defendant is releasedfrom custody or an indictment charging the same offense has beenreturned by the grand jur.

(b) Waiver. A preliary hearing, once demanded, may be subsequentlywaived in open cour or by written waiver, signed by the defendant anddefendant's counsel, if any.(c) Delay. If a preliary hearing has not been commenced within thirty (30)days as requied by subsection (a), unless postponed as provided in subsection(d), the defendant shall be released on recognance, unless the defendant ischarged with a non-baiable offense, or unless release is prohibited by Article 3, 29, paragraph (2), of the Mississippi Constitution of 1890, in which case thejudge shall imediately notify a judge of that circuit of the delay and thereasons therefor. The circuit judge may thereupon order that the hearing be setfor a specified tie.

(d) Postponement. Upon motion of any party, or upon the judge's ownintiative, the preliary hearng may be postponed beyond the tie litsspecified in subsection (a), upon a findig that circumstances exist that justifydelay, and in that event the court shal enter a written order detaig thereasons for the findig and shall give the parties prompt notice thereof.

Comment

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Accordigly, Rule 6.1(a) grants an accused held in custody and chargedwith a felony (and not under indictment) the right to a preliary hearig.However, Rule 6.1(a)(4) provides that, where the defendant is released fromcustody or an indictment is returned prior to commencement of the hearig,the accused is no longer entitled to the prelinary hearig.

Rule 6.1(c) states that if a prelinar hearg is not commenced with30 days as requied by subsection (a), and is not postponed as allowed bysubsection (d), the defendant shal be released on recognizance, unless theoffense is non-baiable or, importantly, unless release is prohibited by Article 3, 29, paragraph (2), of the Mississippi Constitution of 1890, which provides:

If a person charged with committig any offense that is punishable bydeath, life imprisonment or imprisonment for one (1) year or more inthe penitentiary or any other state correctional facilty is granted bai and(a) if that person is indicted for a felony commtted while on bai; or (b)if the court, upon hearing, finds probable cause that the person hascommitted a felony while on bail, then the court shall revoke bail andshall order that the person be detained, without further bai, pendig trialof the charge for which bai was revoked. For the puroses of thssubsection (2) only, the term "felony" means any offense punishable bydeath, life imprisonment or imprisonment for more than five (5) yearsunder the laws of the jursdiction in which the crime is committed. Inaddition, grand larceny shall be considered a felony for the puroses ofths subsection.

Under Rule 6.1(d), postponement is readiy allowed for any reasons that"justify delay."

Rule 6.2 Proceedings at Preliminary Hearing.(a) Procedure. At a preliary hearig the judge shall determe probablecause and the conditions for release, if any. All parties shall have the right tocross-examie personally the witnesses testifying and, subject to the provisionsherein, introduce evidence. Only evidence that is relevant to these questionsshall be admitted.At the close of the prosecution's case, includig cross-examination ofprosecution witnesses by the defendant, the judge shall determine and state forthe record whether the prosecution's case establishes probable cause. Thedefendant may then make a specific offer of proof, including the names of

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witnesses who would testify or produce the evidence offered. The judge shallalow the defendant to present the offered evidence, unless the judgedetermies that it would be insufficient to rebut the findig of probable cause.(b) Process. Unless otherwse ordered by the court for good cause shown,process shall issue to secure the attendance of witnesses requested by thedefendant, the prosecutig attorney, or the court.(c) Hearsay Evidence. The findings by the court shal be based onsubstantial evidence, which may be hearsay, in whole or in part.(d) Suppression Motions Inapplicable. Objections to evidence on theground that it was acquied by unlawful means are not properly made at theprelinary hearing.

(e) Amendment of Complaint. The complait may be amended at any tieto conform to the evidence, unless substantial rights of the defendant would beprejudiced.(f) Presenting the Case to the Grand Jury. If from the evidence it appearsthat there is probable cause to believe that an offense has been committed, andthat the defendant commtted it, the judge shall bind the defendant over toawait action of the grand jur.

(g) Discharge of the Defendant. If from the evidence it appears that there isno probable cause to believe that an offense has been committed or that thedefendant committed it, the defendant shal be discharged from custody. Thedischarge of the defendant shall not preclude the state from presentig thesame offense to a grand jur.

CommentRule 6.2(a) lits the issues at a preliminary hearig to probable causeand the conditions of release. A defendant is permtted to cross-examiewitnesses and, on a proper showing of relevance, present testiony andevidence. Rule 6.2(b) complements these rights by providing defendants with

process to secure the attendance of witnesses, unless otherwse ordered by thecourt on a showig of good cause.

Rule 6.2(a) strives to serve judicial economy by requiing the judge, atthe close of the prosecution's case, to determe whether the prosecution hasestablished probable cause. If so, the defendant may then make a specific28


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offer of proof. The judge must alow the defendant to present the offeredevidence, unless the judge determies that it would be insufficient to rebut theexisting probable cause finding.

Rule 6.2( c) notes the admissibilty of hearsay, which is in accord withMiss. R. Evid. 1101(b)(3) (except for rues pertaig to privileges, rues ofevidence inapplicable in probable cause hearings in crimal cases). There is noconstitutional requiement that hearsay evidence be excluded from a probablecause hearing. See Rule 5.1(a), Fed. R. Crim. P.; Coleman v. Burnett 477 F.2d1187, n. 89 (D.C.Cir. 1973); Costello v. United States, 350 U.S. 359, 76 S.Ct. 406,100 L.Ed. 397 (1956) (upholdig a grand jury indictment based solely onhearsay testiony). See also Hurtado v. Califrnia, 110 U.S. 516, 4 S.Ct. 111, 28L.Ed. 232 (1884). Allowig hearsay at preliary heargs is in keeping withthe dished role assigned such hearings.

Rule 6.2(f) provides that if probable cause is found, the judge shall bindthe defendant over to the grand jur. In makig a determiation of probablecause, the United States Supreme Court has adopted the "totality of thecircumstances" approach. See IllinoiS v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76L.Ed.2d 527 (1983); Massachusetts v. Upton, 466 U.S. 727, 104 S.Ct. 2085, 80L.Ed.2d 721 (1984). Subsection (g) requies the defendant to be discharged ifprobable cause is not found, without prejudice to the state from presentig thesame offense to a grand jury.

Rule 7 CounselRule 7.1 Right to Counsel; Waiver.(a) Right to be Represented by CounseL. A defendant shal be entitled to berepresented by counsel in any crimnal proceeding, except in those pettyoffenses such as traffc violations where there is no prospect of imprisonmentor confinement after a judgment of guty. The right to be represented shallinclude the right to consult in private with an attorney, or the attorney's agent,as soon as feasible after a defendant is taken into custody, at reasonable tiesthereafter, and sufficiently in advance of a proceedig to allow adequatepreparation therefor.(b) Right to Appointed CounseL. An indigent defendant shal be entitled tohave an attorney appointed in any crial proceeding which may result inpunishment by loss of liberty, in any other crimal proceeding in which thecourt concludes that the interests of justice so requie, or as requied by law.

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(c) Waiver of Right to CounseL. A defendant may waive the right to counselin writig or on the record, after the court has ascertaied that the defendantknowigly, intellgently, and voluntarily desires to forgo that right. At the tie

of acceptig a defendant's waiver of the right to counsel, the court shall informthe defendant that the waiver may be withdrawn and counsel appointed orretained at any stage of the proceedigs. When a defendant waives the right tocounsel, the court may appoint an attorney to advise the defendant durg anystage of the proceedigs. Such advisory counsel shal be given notice of allmatters of which the defendant is notified.. (d) Unreasonable Delay in Retaining CounseL. If a nonindigent defendantappears without counsel at any proceeding after havig been given a reasonabletie to retai counsel, the cause shall proceed. If an indigent defendant whohas refused appointed counsel in order to obtai private counsel appearswithout counsel at any proceedig after having been given a reasonable tie toretain counsel, the court shall appoint counsel unless the indigent defendantwaives the right under this rule. If the indigent defendant contiues to refuseappointed counsel, the cause shall proceed.(e) Withdrawal of Waiver. A defendant may withdraw a waiver of the right tocounsel at any tie but wi not be entitled to repeat any proceedig previouslyheld or waived solely on the grounds of the subsequent appointment orretention of counseL.

CommentRule 7.1 establishes gudelies for the representation of both indigentand nonidigent crial defendants. The basis of Rule 7.1 is the right of anaccused to be represented by counsel in all crimal prosecutions under theSixth Amendment to the United States Constitution and Art. 3, See. 26, of the

Mississippi Constitution of 1890.

For the puroses of subsection (a), the term "crimal proceeding"includes any stage of the crinal process, from accusation through appeal, andin collateral proceedigs arising from the initiation of a crimal action agaistthe defendant, such as post-conviction proceedigs and appeals therefrom,extradition proceedings, probation revocation proceedigs, and other lieproceedigs which are adversary in natue, regardless of the designation of thecourt in which they occur or the classification of the proceedigs as civil orcrial, and without regard to whether a "crimnal proceeding" has or has not

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been commenced under Rule 2.1. The provision that a defendant may consultwith the attorney's agent is added for the convenience of the attorney.Rule 7.1(b) is adopted from Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct.

792, 9 L.Ed.2d 799 (1963), on remand 153 So.2d 299; Argersinger v. Hamlin, 407U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972); Miss. Code Ann. 99-15-15; andABA, Standards Relating to Providing Defense Services, 4.1 (ApprovedDraft, 1968). Counsel may be appointed at any point in the proceedigs.Under subsection (b), there are two facets to the question of whencounsel is to be appointed to represent an indigent defendant. The first is

whether the right to appointed counsel arises at all. In Argersinger v. Hamlin, 407U.S. 25, 37, 92 S.Ct. 2006,32 L.Ed.2d 530 (1972), the Supreme Court held thatcounsel must be appointed in any crimal prosecution, "whether classified aspetty, misdemeanor, or felony, ... that actualy leads to imprisonment even fora brief period." Whie under Scott v. Illinois, 440 U.S. 367, 99 S.Ct. 1158, 59L.Ed.2d 383 (1979), counsel need not be appointed in misdemeanor caseswhen the defendant is merely fined, pursuant to Alabama v. Shelton, 535 U.S.654, 122 S.Ct. 1764 (2002), a suspended sentence that may "end up in theactual deprivation of a person's liberty" may not be imposed unless thedefendant was accorded "the guiding hand of counsel." Necessarily, ths wirequie that the judge determe before trial that, regardless of the evidencepresented, the maximum punishment wi not include incarceration or asuspended sentence of imprisonment. This already occurs in traffic cases wherethe judge knows in advance that upon conviction the punishment wi not beimprisonment and that the custom and practice is to fine, even whenimprisonment is a legal alternative.

The second is that, if the defendant is entitled to appointed counsel, atwhat point in the process is counsel to be appointed. Under the SixthAmendment, there is clearly a right to counsel at trial. Gideon v. Wainwright, 372U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). Prior to trial the right exists atarraignment and at a preliary hearing. Following the "critical stage" test, theUnited States Supreme Court has also held that an indigent is entitled toappointed counsel at a pre-trial, post-indictment lieup, United States v. Wade,388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), but not at a pre-indictment lieup, Kirry v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411(1972). Using a different test, namely whether the proceedig is a "trial-lieadversary confrontation" between the defendant and government, the Courthas held there is no right to have appointed counsel present at a photographicdisplay. United States v. Ash, 413 U.S. 300, 93 S.Ct. 2568,37 L.Ed.2d 619 (1973).

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Under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966),and Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964),presence of counsel is requied, if requested, durig pre-indictment questioningif information so obtained is to be admitted as evidence at triaL. At the otherend of the crimal prosecution, an indigent has a right to appointed counsel atsentencing, Mempa v. Rhcr, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967),and in a first appeal granted as a matter of right from a crimal conviction,Douglas,v. Califrnia, 372 U.S. 353, 83 S.Ct. 814,9 L.Ed.2d 811 (1963).

Mississippi Law is more expansive. As the Mississippi Supreme Courtstated in Ormond v. State, 599 So.2d 951, 956 (Miss. 1992):

the right to counsel (under Mississippi law) attaches earlier than does thesixth amendment right. Williamson, 512 So.2d at 876; Page v. State, 495So.2d 436, 439 (Mss.1986). This right attaches "once the proceedigsagainst the defendant reach the accusatory stage." Williamson, 512 So.2dat 876; Page, 495 So.2d at 439. The "accusatory stage" is defined byMississippi law to occur when a warrant is issued or, "by binding over orrecognizing the offender to compel his appearance to answer theoffense, as well as by indictment or affidavit." Miss. Code Ann. 99-1-7(1972). This right to counsel (also) "attaches at the point in tie when'the intial appearance ... ought to have been held....' " Vea4 585 So.2d at699 (emphasis added). (Under Rule 5.1(b)(3), an initial appearance is tobe held within 48 hours when the defendant is arrested without awarrant and held in custody.)

In this vein, under Mississippi law, a participant in a lieup is entitled to have alawyer present if the lieup is held after proceedigs have reached theaccusatory stage. Wilson v. State, 574 So.2d 1324 (1990); Magee v. State, 542So.2d 228 (Mss. 1989)

Rule 7.1(c) provides the standards for waiver of the rights to counsel,applicable throughout these rules. It adopts the constitutional standard setdown in Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938);Von Moltke v. Gillies, 332 U.S. 708, 68 S.Ct. 316, 92 L.Ed. 309 (1948); Miranda v.Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (966), reh'g den. 87 S.Ct.11, 385 U.S. 890, 17 L.Ed.2d 121; and Argersinger v. Hamlin, 407 U.S. 25, 92S.Ct. 2006, 32 L.Ed.2d 530 (1972); and followed in Conn v. State, 170 So.2d 20(Mss. 1964). Generally, a defendant must be advised of the charges; of thepossible maximum sentence; whether, if convicted, the defendant is liely to besentenced to a term of imprisonment; and of the rights to be represented by

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counsel and to have counsel appointed if the defendant is indigent. Edwards v.Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), established that,once the right to counsel has been invoked, a waiver (no matter how voluntary)is invalid if made in response to further police questionig.

Subsection (c) also allows but does not requie the court to appointadvisory or standby counseL. Although a crimal defendant has an absoluteright to defend pro se under the Sixth Amendment, Faretta v. Califrnia, 422 U.S.806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), there may be instances where acourt wi deem the appointment of standby counsel advisable and in thedefendant's best interest. See Faretta, supra; McKaskle v. Wigins, 465 U.S. 168,104 S.Ct. 944, 79 L.Ed.2d 122 (1984) (reasonable actions by standby counseldid not violate Sixth Amendment rights even though the defendant objected tothe appointment of standby counsel); Mqyberr v. Penn.rlvania, 400 U.S. 455, 91S.Ct. 499, 27 L.Ed.2d 532 (1971); United States v. Theriault, 474 F.2d 359 (5thCir.) cert. denied, 411 U.S. 984, 93 S.Ct. 2278, 36 L.Ed.2d 960 (1973); ABA,Standards for Crimnal Justice, Special Functions if the Trial Judge 6-3.7 (2d ed.1986). The court is requied to inform the defendant that the waiver may bewithdrawn, as under subsection (e) the defendant has the burden of requestigcounsel if the defendant later decides to withdraw the waiver.

Rule 7 .1 (d) protects the court agaist diatory tactics by the defendant inretaining counsel while at the same tie preserving the defendant's right tocounseL. It allows an indigent defendant the opportunity to make a good faith,though unsuccessful, effort to obtain counsel, even though as a result theproceedig wi be delayed. See Cleveland v. United States, 322 F.2d 401 (D.C.Cir.),cert. denied, 375 U.S. 884, 84 S.Ct. 157, 11 L.Ed.2d 114 (1963); McConnell v.United States, 375 F.2d 905 (5th Cir.1967). The procedure may have the salutareffect of alowig an otherwse indigent defendant an opportunity to raisefunds to employ counsel of the defendant's choosing and thus reduce theburden on the appointed counsel system.

Under Rule 7.1(t7), the defendant can decide at any tie that it was amistake to waive counsel; the court should encourage an unrepresenteddefendant, at all stages, to obtai counseL. The defendant's right to withdraw awaiver of counsel is unlited; however, a defendant is not allowed to use lateappointment or retention of counsel to disrupt orderly and tiely processing ofthe case. Thus, a defendant cannot delay a scheduled proceeding, nor repeatone aleady held, solely because of a change of heart concerning the need forcounseL.

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Rule 7.2 Procedure for Appointment of Counsel for IndigentDefendants; Appearance; WithdrawaL.(a) Procedure for Appointment of Counsel for Indigent Defendants. (1)GenerallY. A procedure shall be established in each Circuit for appointment ofcounsel by the Circuit Court, or by limited jurisdiction courts, for each indigentperson entitled thereto.(2) Appointment a/Two Attornrys; Death Penalty Cases. In all tral proceedigs, thecourt may appoint two attorneys. In all death penalty trial proceedings, thecourt shal appoint two attorneys pursuant to the standards in Rule 7.4. At thetie of the appointment and subject to the approval of the court, lead counselmay select co-counsel so long as co-counsel is wig to accept theappointment and, in death penalty cases, meets all of the requiements of Rule7.4. If lead counsel does not name co-counsel upon acceptig an appointment,the court shall select co-counseL.(b) Notice of Appearance. Before or at a first appearance in any court onbehalf of a defendant, an attorney, whether privately retained or appointed bythe court, shal me a notice of appearance or, in lieu thereof, the court shalnote of record the attorney's appearance.

(c) Duty of Continuing Representation. Counsel representig a defendant atany stage followig indictment shall contiue to represent that defendant in allfurther proceedigs in the trial court, includig filng of notice of appeal, unlesscounsel withdraws for good cause as approved by the court.(d) WithdrawaL. Counsel may be permtted to withdraw for good causeshown; however, no attorney shall be permtted to withdraw after a case hasbeen set for trial except upon written motion statig the attorney's reasonstherefor.

CommentThe purpose of Rule 7.2 is to define minimum standards for therepresentation of crimal defendants. Rule 7.2(a) requies that each circuitshall establish governig local procedures for the appointment of counsel forindigent defendants. Local court rules are promulgated pursuant to M.R.C.P.83.

Rule (a)(2) recognizes the court's authority to appoint two attorneys inany appropriate case, and the court's duty to do so in all death penalty

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proceedigs. A "death penalty" proceedig is one in which the death penalty isa possible sentence. In this way, the term is synonymous with "capital crime."See Campbell v. State, 749 So.2d 1208 (Mss. Ct. App. 1999) ("Capital" cries arethose in which death or life imprisonment are each a possible sentence.)

Rule 7.2(b) insures that defendants are in fact represented by requiingcounsel to file a notice of appearance either at or before counsel's firstappearance or, instead, by requiing that the court note the attorney'sappearance on the record.

Rule 7.2(c) contemplates that the usual procedure wi be that counselretained privately or appointed at any stage followig indictment wi contiueto represent the defendant through all stages of the tral proceedigs, includigfilg notice of appeaL. In addition to being famiar with the case, continued

representation guarantees that a defendant's right of appeal is not lost in theperiod between termiation of trial counsel's responsibilties and retention orappointment of appellate counseL.Rule 7 .2( d) provides that once a case has been set for trial, counsel maymove to withdraw only by means of a written motion. Withdrawal wi bepermitted only on order in response to such motion. Normaly, appointedcounsel wi not be permitted to withdraw prior to appeaL. Of course, if thecourt allows counsel to withdraw, the court must see that new counsel isretained or appointed, unless the right to counsel has been properly waived

pursuant to Rule 7.1(c). In ths way, subsection (d) seeks to maitai theintegrity of the trial date whie also protectig the interests of the defendantand aidig the trial court in providing contiuity in legal representation.Nothing in Rules 7.2(c) or (d) lits the abilty of a court to employ alocal procedure whereby an attorney is appointed to represent a defendant for a

lited purpose or tie, after which another attorney is appointed or retaiedto represent the defendant for subsequent proceedigs.

Rule 7.3 Determination of Indigency; Appointment of Counsel;Compensation.(a) Standard for Indigency. The term "indigent" as used in these rues meansa person who is not financially able to employ counseL.(b) Mfidavit of Substantial Hardship. A defendant desirg to proceed as anindigent shall complete under oath an "Affidavit of Substantial Hardship"

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concernig that defendant's financial resources, on a form approved by theMississippi Supreme Court. The defendant may be examined under oathregardig defendant's financial resources by the judge responsible fordetermig indigency; the defendant shall, prior to said questionig, be advisedof the penalties for perjury as provided by law.(c) Reconsideration. After a determation of indigency or non-indigency hasbeen made, if there has been a material change in circumstances, either thedefendant, the appointed attorney, or the prosecutor may move forreconsideration.(d) Order of Appointment. Whenever counsel is appointed, the court shallenter an order to that effect, a copy of which shal be given or sent to thedefendant, the attorney appointed, and the prosecutor.(e) Appointment of Public Defender. In counties which have a publicdefender, the public defender shal represent all persons entitled to appointedcounsel whenever authorized by law and able in fact to do so.(f) Other Appointments. If the public defender is not appointed, a privateattorney shall be appointed to the case. All crial appointments shall bemade in a manner fair and equitable to the members of the bar, takig intoaccount the ski likely to be requied in handlng a particular case.(g) Requests for Representation Prior to Indictment. A request forappointment of counsel under Rule 7.1 shall be made and processed as ifproceedigs had already commenced in Circuit Court.(h) Appointment of Counsel During AppeaL. The tral or appellate courtshall appoint new counsel for a defendant legally entitled to such representationon appeal, when prior counsel is permtted to withdraw.(i) Compensation. A private attorney appointed to represent an indigent isentitled to compensation for services rendered as provided by law. A privateattorney so appointed shal be entitled to compensation for services rendered

whether or not a crinal case reaches circuit cour. Otherwse, no appointedcounsel may request or accept any payment or promise of payment for assistigin the representation of a defendant.(j) Expenses. As used herein the term "compensation for services" shallinclude any reasonable expenses necessariy incurred by appointed counsel in

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defense of an indigent client, includig fees and expenses of expert orprofessi

proposed crim rules

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