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RULE WILL AFFECT SUMMARY AND IMPACT

Rule 1.6

R-06-0016

Contact: Mark Meltzer

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Judges
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Rule 1.6 governs a defendant’s appearance in a criminal proceeding through an “interactive audiovisual system”, i.e., by video-conferencing.

The 2009 amendments to Rule 1.6 create three categories of proceedings for the appearance of a defendant by video-conferencing:

  1. Proceedings where the defendant’s appearance by video-conference is not allowed (trials, contested probation violation hearings, and a sentencing or probation disposition hearing in a felony case.) An exception may be made only upon the court’s finding of extraordinary circumstances, and with consent of the parties by written stipulation or upon the record.

  2. Proceedings where the defendant’s appearance by video-conference is in the sole discretion of the judicial officer (initial appearances, not-guilty arraignments, guilty arraignments for misdemeanors, hearings on motions to continue that do not involve waivers of time, hearings on uncontested motions, pretrial conferences, changes of plea in misdemeanor cases, and informal conferences in PCR matters.)

  3. Proceedings where the parties may stipulate that the defendant can appear by video-conference (this applies to any proceeding not specifically excluded or included above.) The stipulation is subject to court approval.

If a hearing where the defendant appears by video-conference expands beyond what was anticipated, the court may continue the hearing to allow the defendant’s personal appearance in the courtroom.

A new provision concerning interpreters requires the interpreter to be present with the remote defendant (i.e., at the jail) absent “compelling circumstances”.

Impact:

  • The court has discretion to conduct certain proceedings where the defendant appears by video-conference. See Rule 1.6(d).

  • A simple court form that provides a stipulation between parties that a defendant can appear by video-conference might prove useful. See Rule 1.6(e).

  • The order adopting the amendments to Rule 1.6 requires operational standards for video-conferencing. A new ACJA section containing operational standards is anticipated in late December 2009 or January 2010.

  • The proposed section of the ACJA would require that judicial officers and staff be trained on the operation and optimal use of the interactive audiovisual system.

See further Rule 10 of the Rules of Procedure for Civil Traffic Violation Cases, infra.


Rule 2.3(b)

R-08-0039

R-08-0039 Corrective Order

Contact: Melinda Hardman

Superior Courts
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Judges
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This new provision was adopted in conjunction with the amendments to Rule 123 of the Rules of the Supreme Court.

When a charging document is filed in a criminal case in which a juvenile is alleged to be the victim of any offense listed in A.R.S. Title 13, chapter 14 (sexual offenses) or chapter 35.1 (offenses concerning sexual exploitation of children), the prosecutor must advise the clerk that the case is subject to the provisions of Supreme Court Rule 123(g)(1)(C)(ii)(h). Under this provision of Rule 123, the charging document will not be accessible by remote electronic access.

Impact:

Record custodians will need to ensure that EDMS and CMS systems correctly flag these records so they are not viewable by unauthorized users.


Rules 3.2, 4.2, 7.5, 14.3, 26.10, and Form 3(a)

R-09-0029

Adopted on a emergency basis, effective January 1, 2010 Public comments due May 20, 2010

Contact: Patrick Scott

Superior Courts
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Judges
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These amendments deal with procedures for obtaining fingerprints in criminal proceedings.

Existing Rule 3.2 requires that a defendant who is summoned to court on a felony or a specified misdemeanor must be fingerprinted by the appropriate law enforcement agency. The amendment to this rule requires that the summoned defendant provide “ten-print fingerprints” to the law enforcement agency.

Impact:

At an initial appearance pursuant to Rule 4.2(a), if the defendant does not present a completed mandatory fingerprint compliance form, or if the court has not received the process control number, the court shall order that the defendant within twenty days be ten-print fingerprinted at a designated time and place by the appropriate law enforcement agency. A parallel process is set forth in the amendments to Rule 14.3(h) for defendants who are summoned to appear at an arraignment.

Under the amendments to Rule 7.5(e), if a defendant fails to timely present a completed fingerprint compliance form, or if the court has not received the process control number, the court on its own motion may remand the defendant into custody for ten-print fingerprinting. If otherwise eligible for release, the defendant must be released from custody after being ten-print fingerprinted.

At the time of pronouncement of sentence under Rule 26.10(b) on any felony offense or for a theft or DUI offense, the court shall permanently affix the defendant’s right index fingerprint to the sentencing document and to the final disposition report.

Amendments to the summons, Rule 41, Form 3(a) were made by an Order entered in R-08-0019 regarding DNA testing. In R-09-0029, additional non-conflicting amendments have been made to the summons form concerning the requirement for ten-print fingerprints.

See further Exhibit A to the Arizona Traffic Ticket and Complaint, Rules of Procedure for Traffic Cases and Boating Cases, infra.


Rule 6.3

R-08-0041

Contact: Mark Meltzer

Superior Courts

Judges

Rule 6.3 concerns the duties of defense counsel in a criminal case. The amendments to Rule 6.3 added two new paragraphs regarding defense counsel in a capital case.

New Rule 6.3(d) requires that defense counsel maintain records in a capital case “in a manner that will inform successor counsel of all significant developments relevant to the litigation” and that the complete record and file, as well as information “regarding every aspect of the representation” be provided to successor counsel.

New Rule 6.3(e) requires successor counsel to obtain the complete file of the previous counsel “immediately upon undertaking representation”. This provision also requires that successor counsel continue to preserve the file in a manner that complies with section 6.3(d).

Impact:

The rule provides for defense counsels’ efficient and timely transfer of the defendant’s complete file in a capital case, and it should improve capital case processing.


Rules 11.5 and 11.6

R-09-0028

Emergency effective date of September 30, 2009 Public comments due May 20, 2010

Contact: Mark Meltzer

Superior Courts

Judges
Clerks
Court Administrators
Probation Officers

A.R.S. § 13-4515(A) provides that “an order or combination of orders” issued pursuant to A.R.S. §§ 13-4512 and 13-4514 and that direct a defendant who has been found incompetent to a restoration to competency program, shall not be in effect for more than twenty-one months or the maximum possible sentence a defendant could have received, whichever is less.

A new subsection (B) was added in 2009 to A.R.S. § 13-4515. This new subsection provides that “the Court shall only consider the time a defendant actually spends in a restoration to competency program when calculating the time requirements pursuant to subsection A of this section.”

Impact:

New Rule 11.5(e) requires that the court calculate the time period in a manner consistent with the statutory amendment, i.e., by considering only the time a defendant actually spends in a restoration to competency program.

The changes to Rule 11.6 are technical and conforming corrections and will have no impact.


Rules 32.7

R-08-0042

Contact: Mark Meltzer

Superior Courts

Judges
Clerks
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Rule 32.7 pertains to informal conferences on petitions for post-conviction relief in a criminal case.

Impact:

The amendment to Rule 32.7 applies only to capital cases. The amendment makes the informal conference on a first notice of a petition for post-conviction relief in a capital case mandatory rather than discretionary. The court must hold, and the clerk must calendar, an informal conference within ninety days from the appointment of counsel.


Rules 39

R-08-0037

Contact: Carol Mitchell

Superior Courts
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Rule 39 provides for rights of crime victims. The amendment to Rule 39(a) amends the definition of “victim” to conform to A.R.S § 13-4401.

Impact:

In circumstances where a person has been killed or incapacitated as a result of an alleged criminal offense, that person’s grandparent, sibling, or any other person related to the person by consanguinity or affinity to the second degree (e.g., uncle, aunt, first cousin, niece, in-law) or any other lawful representative of the person are now included within the definition of “victim”. The court must afford to these individuals the rights provided to victims.


Rules 1.3

R-09-0025

Superior Courts
Justice Courts

Judges
Clerks

The amendment corrects an erroneous cross-reference in this rule. This is a “housekeeping amendment".

Impact: None.


Rules of Criminal Procedure Previously Adopted on an Emergency Basis

Rules 7.3 and 7.5

Rules 2.7, 4.1, 4.2, and Rule 41 (Form 3a)

R-08-0019

Contact: Patrick Scott

Superior Courts
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Judges
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Amendments to these rules regarding samples for DNA testing were adopted on an emergency basis on September 26, 2008. These rules are now permanently adopted, with certain modifications.

Impact:

Rule 7.3(a): A mandatory condition of release for a person charged with an offense listed in A.R.S. § 13-610(O)(3) requires that the court order the person to provide a sample of buccal cells or substances to a law enforcement agency within five days of release, and to provide the court with proof of compliance at the next court hearing.

The judicial officer “shall” (rather than “may”) advise the person that a willful failure to comply with this order “shall” result in revocation of the person’s release.

Rule 7.5(d): A prosecutor may file a motion (rather than a verified petition) stating facts or circumstances that the defendant has failed to comply with the court’s order to submit a sample and to provide proof of compliance. The court shall proceed at the defendant’s next court appearance in accordance with the requirements of this rule and A.R.S. § 13-3967(F)(4) [“ If a person does not comply with an order issued pursuant to this subsection, the court shall revoke the person's release.”]

The Order adopting these revised rules also adopted the following additional modifications to the Rules of Criminal Procedure:

Rule 2.7: Upon petition by an arresting authority or a custodial agency stating that a person who is in custody for an offense listed in A.R.S. § 13-610(O)(3) has failed (refused) to provide a sample for DNA testing, the court shall order that the person appear at a designated time and place to permit the taking of a sample for DNA testing. The arresting authority or custodial agency is required to provide the person with a copy of the court order.

Rule 4.1(e): If an arresting authority is required to secure a sample for DNA testing, proof of compliance shall be provided to the court prior to the initial appearance.

Rule 4.2(a)(9): At the initial appearance of an in-custody defendant who was arrested for an offense listed in A.R.S. §13-610(O)(3), if the court has not received proof of compliance that a sample has been provided, the court shall order the arresting agency to secure a sample for DNA testing.

Rule 41, Form 3(a): The form of summons has been modified. The modified summons includes an order that the person appear at a specified law enforcement agency prior to the court appearance date and provide a sample for DNA testing. The defendant is directed to bring the summons to the law enforcement agency. The modified summons has a space for the law enforcement agency to place an inked stamp to confirm that the defendant has provided a DNA sample. The summons directs the defendant to bring the summons, with the law enforcement stamp, to the court appearance to prove that a sample has been provided as required by the summons.

See further Rules 23 and 28 of the Juvenile Court Rules, infra.


Rule 27.4

R-08-0024

Contact:
JL Doyle

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This amendment was adopted on an emergency basis effective December 31, 2008. It provides that the court may reduce the term of supervised probation for earned time credit, as provided by law.

Impact:

None or minimal. The court will consider petitions to award earned time credit and reduce terms of probation as is done currently for early termination petitions.


Rule 28.2

R-08-0026

Contact: Mark Meltzer

Superior Courts
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Judges
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This amendment was adopted on an emergency basis effective January 1, 2009. The rule amendment was prompted by the addition of A.R.S. § 13-4221 in 2008.

Impact:

Pursuant to A.R.S. § 13-4221, governmental entities are required to retain biological evidence that is obtained in connection with a felony sexual offense or a homicide for prescribed lengths of time. For persons convicted of these offenses, the time period is while the person remains incarcerated, or until the completion of the person’s supervised release. For a “cold case”, the time period is fifty-five years, or until a person who is convicted of the crime remains incarcerated or is under supervised release for the offense. The biological evidence must be retained so it can be made available for DNA testing. See further A.R.S. §13-4240: the court may order DNA testing of this evidence. The addition of the words “unless the law establishes evidentiary retention requirements” to Rule 28.2(b) is intended to address the statutory requirement of preserving biological evidence.