Title 46, Title 46

(1) The court may allow an information to be amended in matters of substance at any time, but not less than 5 days before trial, provided that a motion is filed in a timely manner, states the nature of the proposed amendment, and is accompanied by an affidavit stating facts that …

(1) A grand jury may only be drawn and summoned when the district judge, in the judge's discretion, considers a grand jury to be in the public interest and orders the grand jury to be drawn or summoned. The composition and drawing of a grand jury must be in accordance with the pr…

(1) The prosecutor may challenge the panel of a grand jury on the ground that the grand jury was not selected, drawn, or summoned according to law and may challenge an individual juror on the ground that the juror is not legally qualified. Challenges must be made before the admin…

The district court shall appoint one of the jurors to be lead juror. The lead juror has the power to administer oaths or affirmations and shall sign all indictments. The lead juror or another juror designated by the lead juror shall keep a record of the number of jurors concurrin…

When the county attorney or attorney general is the subject of a grand jury investigation, the district court shall appoint a special prosecutor. If a special prosecutor is appointed, the county attorney's or attorney general's office may not participate in an official capacity, …

Subject to any right to an open hearing in contempt proceedings, the court shall order a hearing on matters affecting a grand jury proceeding to be closed. This requirement may not affect a defendant's discovery rights after the filing of the indictment.

The prosecutor, witnesses, interpreters, and a stenographer or operator of a recording device used for the purpose of taking the evidence may be present while the grand jury is in session. No person other than the jurors may be present while the grand jury is deliberating or voti…

The grand jury shall inquire into those matters as directed by the court summoning the jury and shall inquire into other matters as presented by the prosecutor.

When a grand jury is impaneled and sworn, it must be charged by the judge who summoned it. In making the charge, the district court shall instruct the jury as to its duties and the matters that jurors may consider. The prosecutor may bring additional matters before the grand jury…

(1) A subpoena requiring the attendance of a witness before the grand jury may be signed and issued by the county attorney, by the lead juror of the grand jury, or by the judge of the district court. (2) The fees and mileage of witnesses subpoenaed pursuant to this section must b…

In the investigation of a charge, the grand jury shall receive no other evidence than that given by witnesses produced and sworn before it or that furnished by legal evidence or the deposition of a witness.

(1) The grand jury may at all times ask the advice of the judge. Unless advice is asked, the judge may not be present during the sessions of the grand jury. (2) The prosecutor may at all times appear before the grand jury for the purpose of giving information or advice relative t…

(1) The grand jury shall either appoint a stenographer to take in shorthand the testimony of witnesses or the testimony must be taken by a recording device, but the record so made must include the testimony of all witnesses on that particular investigation. (2) The stenographic r…

(1) Disclosure of matters occurring before the grand jury other than its deliberations and the vote of any juror may be made to any prosecutor or investigator of this state and prosecutors or investigators from any other state or the federal government for use in the performance …

When the grand jury certifies the completion of business before it and the district court concurs, the grand jury must be discharged by the district court.

(1) Except as provided in subsection (2), all expenses of the grand jury, including expenses for special prosecutors, experts, investigators, and interpreters, if any, must be paid by the county. The treasurer of the county shall pay the expenses out of the general fund of the co…

(1) The grand jury shall find an indictment when all the evidence before it taken together would in its judgment warrant a conviction by a trial jury. An indictment may be found only upon the concurrence of at least eight grand jurors. (2) If a complaint or information is pending…

(1) An indictment, when found by the grand jury, must be signed by and presented by the lead juror to the district court in the presence of the grand jury and must be filed with the clerk. The district court shall then issue an arrest warrant or summons for the defendant. (2) If …

(1) The charge must be in writing and in the name of the state or the appropriate county or municipality and must specify the court in which the charge is filed. The charge must be a plain, concise, and definite statement of the offense charged, including the name of the offense,…

(1) Two or more offenses or different statements of the same offense may be charged in the same charging document in a separate count, or alternatively, if the offenses charged, whether felonies or misdemeanors or both, are of the same or similar character or are based on the sam…

(1) When two or more persons are included in the same charge, the court may, at any time before the defendants have gone into their defense, on the application of the prosecutor, direct any defendant to be discharged so that the defendant may be a witness for the prosecution. (2)…

(1) When the same transaction may establish the commission of more than one offense, a person charged with the conduct may be prosecuted for each offense. (2) A defendant may not, however, be convicted of more than one offense if: (a) one offense is included in the other; (b) one…

(1) When two or more offenses are known to the prosecutor, are supported by probable cause, and are consummated prior to the original charge and jurisdiction and venue of the offenses lie in a single court, a prosecution is barred if: (a) the former prosecution resulted in an acq…

When conduct constitutes an offense within the jurisdiction of any state or federal court, a prosecution in any jurisdiction is a bar to a subsequent prosecution in this state if: (1) the first prosecution resulted in an acquittal or in a conviction and the subsequent prosecution…

A prosecution is not a bar if: (1) the former prosecution was before a court that lacked jurisdiction over the defendant or the offense; or (2) the former prosecution resulted in a judgment of conviction that was held invalid in a postconviction hearing.

(1) If the defendant is held to answer after a preliminary examination, after the defendant has waived a preliminary examination, after the district court has granted leave to file an information, or after an indictment has been returned, the judge may: (a) require any material w…

(1) Except as provided in this section, pretrial proceedings and records of those proceedings are open to the public. If, at the pretrial proceedings, testimony or evidence is presented that is likely to threaten the fairness of a trial, the presiding officer shall advise those p…

The defendant must be arraigned in the court that has trial jurisdiction of the charge.

The court may direct any official who has custody of the defendant to bring the defendant before the court to be arraigned.

Defendants who are jointly charged may be arraigned separately or together in the discretion of the court.

(1) Arraignment must be conducted in open court and must consist of reading the charge to the defendant or stating to the defendant the substance of the charge and calling on the defendant to plead to the charge. The defendant must be given a copy of the charging document before …

If on the arraignment the defendant requires it, the defendant must be allowed a reasonable time, not less than 1 day, to answer or otherwise plead to the indictment, information, or complaint. The answer may include appropriate pretrial motions.

(1) A defendant may plead guilty, not guilty, or, with the consent of the court and the prosecutor, nolo contendere. If a defendant refuses to plead or if a defendant corporation fails to appear, the court shall enter a plea of not guilty. (2) The court may not accept a plea of g…

The court must prepare and keep a written record of all arraignment proceedings. In district courts a verbatim record of all arraignment proceedings must be made, preserved, and filed with the court.

(1) Before accepting a plea of guilty or nolo contendere, the court shall determine that the defendant understands the following: (a) (i) the nature of the charge for which the plea is offered; (ii) the mandatory minimum penalty provided by law, if any; (iii) the maximum penalty …

(1) The prosecutor and the attorney for the defendant, or the defendant when acting pro se, may engage in discussions with a view toward reaching an agreement that, upon the entering of a plea of guilty or nolo contendere to a charged offense or to a lesser or related offense, th…

(1) The court may not accept a guilty plea without determining that there is a factual basis for the plea in charges of felonies or misdemeanors resulting in incarceration. (2) A defendant who is unwilling to admit to any element of the offense that would provide a factual basis …

Any variance from the procedure required by 46-12-211 that does not affect the substantial rights of the defendant must be disregarded.

(1) Except for good cause shown, any defense, objection, or request that is capable of determination without trial of the general issue must be raised at or before the omnibus hearing unless otherwise provided by Title 46. (2) Failure of a party to raise defenses or objections or…

(1) A motion made before trial must be determined before trial unless the court, for good cause, orders it deferred for determination at the trial of the general issue or until after the verdict, but a determination may not be deferred if a party's right to appeal is adversely af…

(1) Except for good cause shown, if the prosecution seeks treatment of the accused as a persistent felony offender or a persistent felony offender under supervision, notice of that fact must be given at or before the omnibus hearing pursuant to 46-13-110. (2) The notice must spec…

(1) Within a reasonable time following the entry of a not guilty plea but not less than 30 days before trial, the court shall hold an omnibus hearing. (2) The purpose of the hearing is to expedite the procedures leading up to the trial of the defendant. (3) The presence of the de…

(1) The defendant or the prosecutor may move for a continuance. If the motion is made more than 30 days after arraignment or at any time after trial has begun, the court may require that it be supported by affidavit. (2) The court may upon the motion of either party or upon the c…

(1) The defendant or the prosecution may move for a change of place of trial on the ground that there exists in the county in which the charge is pending such prejudice that a fair trial cannot be had in the county. (2) If the district court determines that there exists in the co…

If the court determines that a motion to dismiss based upon the grounds of lack of jurisdiction or improper place of trial is well-founded, it may, instead of ordering dismissal, order the cause transferred to a court of competent jurisdiction or to a proper place of trial.

When a trial occurs after a change of place of trial and a retrial is required, the cause must be returned to the county in which the charge was originally properly filed for further proceedings.