GCA Title 8, Chapter 1
8 GCA CRIMINAL PROCEDURE CH. 1 GENERAL PROVISIONS
TITLE 8 CRIMINAL PROCEDURE
SOURCE: Enacted by P.L. 13-186 (Sept. 2, 1976) as the Criminal Procedure Code of Guam. Codified in Title 8 Guam Code Annotated by P.L. 15-104:7 (Mar. 5, 1980) and amended as indicated herein. 2007 COMMENT: Prior to being placed in the Guam Code Annotated, criminal procedure statutes were published in 1977 in a hard-bound publication entitled ‘Criminal Procedure and P.L. 13-187’ by the Compiler of Laws. The 1977 publication contained an introduction statement that explained the general intent of Criminal Procedure Code as it existed at the time. The 1977 introduction is included here in its entirety:
[1977] INTRODUCTION
The two laws contained in this Volume are, together with the Criminal and Correctional Code, a product of the Guam Law Revision Commission, which was established by P.L. 12-93. Public Law 13-187 is a law which amends the general laws of Guam to conform with the terminology and sentencing structure of the Criminal and Correctional Code and the Criminal Procedure Code. Most particularly, P.L. 13-187 brings the myriad of separate sentences found throughout the laws of Guam in no set pattern into conformity with the criminal classifications and sentences established by the new Codes. The Criminal Procedure Code (P.L. 13-186) supersedes Part II of the Penal Code of Guam and existing, court-adopted, Rules of Criminal Procedure. The Law Revision Commission, having observed the interaction (and confusion) between Part II of the Penal Code and the Rules of Criminal Procedure, decided that all major criminal rules should be in statutory form. Thus, these Rules are intended to wholly supersede existing Rules of Criminal Procedure. It is for this reason that no ‘Rules of Criminal Procedure’ adopted by the Court have been attached to this Volume. Those rules which the Court may adopt have not yet been adopted. Even a cursory examination will reveal that the Criminal Procedure Code, as adopted, makes significant changes. Yet this Code is not designed to cause a revolution in Criminal Procedure, only rapid evolution. Special attention should be directed towards the areas of pre-trial release, grand jury proceedings, preliminary examinations, depositions and discovery. The purpose and effect of these changes is explained in the Notes following the pertinent sections. Most of the significant changes in substance are based upon comparable provisions in the more recent federal rules or legislation and on standards proposed by the American Bar Association Project on (Minimum) Standards for Criminal Justice. The original comments and cross-references to sources of this and the other Codes in the series were prepared by the Executive Director of the Law Revision Commission before passage of the Codes. I have added, deleted and modified these comments and notes where necessary to reflect the law as actually passed by the Legislature. It was the expressed desire of the Commission that such comments accompany the publication of these Codes. The various penal sections of law occurring throughout the laws of Guam were enacted separately from each other and from the Penal Code. Thus, each act has tended to set its own penalties without reference to a general system of sentences. Public Law 13-187 amends these penalty sections, among others, to provide each crime with a penalty which conforms to the standard classification found in the Criminal and Correctional Code, namely felonies, felonies by degree, misdemeanor, petty misdemeanor and violation. Individual sentences have been eliminated. The Table of Contents for P.L. 13-187 reflects the section amended, the subject matter of the section and the new penalty or other amendment, or repeal. CHARLES H. TROUTMAN Compiler
NOTE TO ANNOTATIONS
In contrast to the Criminal and Correctional Code, this Code does not contain ‘Sources’, ‘Cross-references’ and ‘Comments.’ Unlike the Criminal & Correctional Code, the Criminal Procedure Code takes from sources which are already enacted as law or promulgated as court rules, either local court rules or the Federal Rules of Criminal Procedure. Thus, no new discussion of intent is needed in most cases. That is already available from the standard sources. Therefore, following each Section of this Code will be a ‘Note’ which will include any necessary commentary and the appropriate citation to the source and any cross-references. No comment or cross-referencing has been added to P.L. 13-187,
8 GCA CRIMINAL PROCEDURE CH. 1 GENERAL PROVISIONS
as this part of the three laws is self-explanatory, amending the remainder of the Government Codes, Civil and Civil Procedure Codes to conform with the substantive revisions of the Criminal & Correctional Code and the Criminal Procedure Code.
ABBREVIATIONS USED
- Guam Penal Code is cited as ‘Guam PC § _____’ ‘G.P.C. § _____.’
- Government Code of Guam is cited as ‘Govt. Code § _____.’
- Civil Code of Guam is cited as ‘Civ. Code § _____.’
- 1970 Code of Criminal Procedure cited as ‘Code Crim. Proc. § _____.’
- 1970 Code of Civil Procedure cited as ‘Code Civ. Proc. § _____.’
- Criminal & Correctional Code of 1977 cited as ‘Crim. & Corr. Code § _____.’
- Criminal Procedure Code of 1977 cited as ‘Crim. Proc. Code § , or ‘CPC §.’
- American Law Institute, Model Penal Code (Proposed Official Draft 1962) cited as ‘M.P.C. § _____.’
- California Joint Legislative Committee for Revision of the Penal Code, Penal Code Revision Project (Tentative Drafts 1, 2, & 3 dated Sept. 1967, June 1968 & July 1969) cited as ‘Cal. § _____ (T.D. (1, 2, or 3), 196_).’
- California Joint Legislative Committee for Revision of the Penal Code, Penal Code Revision Project (Staff Draft entitled ‘The Criminal Code,’ 1971) cited as ‘Cal. § _____(1971).’
- Massachusetts Criminal Law Revision Commission, Criminal Code of Mass. (Proposed 1972), cited as ‘Mass. ch. § _____.’
- New Jersey Criminal Law Revision Commission, New Jersey Penal Code (Final Report, 1971) (two volumes) cited as ‘1 or 2 N.J. §_____.’
- § 1.01. Short Title.
- § 1.05. Severability Clause.
- § 1.07. General Applicability; Court Rules.
- § 1.09. Traffic Court Rules to be Adopted by Judicial Council; De Novo Appeal Allowed to Superior Court.
- § 1.11. Rights of Defendant Enumerated.
- § 1.13. Presence of Defendant: When Mandatory, Permissive.
- § 1.15. Indictments; When Required.
- § 1.17. Preliminary Examination: When Required, Waived.
- § 1.19. Conviction Only by Verdict, Finding or Plea.
- § 1.21. Granting of Immunity: Procedure.
- § 1.23. Photographs, Broadcasting in Courtroom Permitted.
- § 1.25. Computation of Time.
- § 1.27. Motions to be in Writing; Exceptions.
- § 1.29. Motions: Service, Time, Filing With Court.
- § 1.31. Court Always Open.
§ 1.01. Short Title.
This Title 8 of the Guam Code Annotated shall be known as Criminal Procedure. COMMENT: This Title is adopted by P.L. 13-186 (Sept. 2, 1976) in order to minimize possible confusion with the Code of Civil Procedure when initials are used to refer to a particular code. P.L. 15-104:7 (Mar. 5, 1980) reenacted this Code as Title 8 of the Guam Code Annotated and changed its name to conform with the new title format.
§ 1.05. Severability Clause.
If any provision of this Code, or the application thereof to any person or circumstance, is held invalid, such invalidity shall not affect any other provision or application of this Code which can be given effect without the invalid provision or application, and to this end the provisions of this Code are severable. COMMENT: Section 1.05 adds a severability clause to this Code and covers this Code plus all amendments thereto. While no such clause was placed in the former Penal Code, the courts have assumed its existence by case law.
§ 1.07. General Applicability; Court Rules.
(a) The provisions of this Code govern the practice and procedure in every criminal proceeding prosecuted in the name of Guam. They are intended to provide for the just determination of every criminal proceeding and shall be construed to secure simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay. (b) The Judicial Council may provide by rule for the practice and procedure in criminal proceedings only to the extent such rules are not inconsistent with the provisions of this Code. Subject to this limitation, the Judicial Council may prescribe rules in the manner provided by § 66 of the Code of Civil Procedure. (c) If no procedure is provided by this Code or by rule, the court may proceed in any lawful manner not inconsistent with its own rules or with any applicable statute. (d) Nothing in this Code shall be construed in any way to amend, repeal or affect the provisions of 19 GCA Chapter 5 (Family Court), or limit the jurisdiction of the Court in the administration and enforcement of that chapter.
8 GCA CRIMINAL PROCEDURE CH. 1 GENERAL PROVISIONS
CHAPTER 1 GENERAL PROVISIONS
8 GCA CRIMINAL PROCEDURE CH. 1 GENERAL PROVISIONS
COMMENT: The second sentence of § 1.07(a) is substantively the same as former Rule 2 and former Guam PC § 4. However, the remainder of the section completely reverses prior law. Formerly, non-substantive, statute. See former Code Civ. Proc. § 66 (P.L. 12-085, § 3 (Jan. 16, 1974)). Now, the procedure in criminal cases is made statutory by this Code and the courts may not alter any rule contained in this Code. The changed approach is due to two factors. First, many matters of criminal procedure involve fundamental rights - bail, jury, types of pleas, arraignment, indictment; preliminary hearing, etc. - and it is believed that these matters should be fixed in law. Secondly, the issue of whether a matter is subject to the Criminal Procedure portion of the Penal Code or to court rule has been a SOURCE of confusion and litigation. Thus, the Committee believed that there should be only one SOURCE of major criminal rules - this Code. 2024 NOTE : Reference to ‘Territory’ replaced with ‘Guam’ pursuant to 1 GCA § 420. NOTE: A Guam Supreme Court was created by P.L. 21-147 (Jan. 14, 1993). However, this section was not changed by that law, and the Supreme Court does not come into effect until after a number of statutory requirements have first been met. So, for criminal matters, this Chapter remains law, and the Rules promulgated by this Title must still be altered only by the Legislature.
§ 1.09. Traffic Court Rules to be Adopted by Judicial Council; De Novo Appeal allowed to Superior Court.
(a) Notwithstanding the provisions of § 1.07, the Judicial Council may, in its discretion, adopt such rules governing the procedure in the Traffic Court, a division of the Superior Court, as it shall deem necessary to secure simplicity and uniformity in procedure, fairness in administration and the elimination of unjustifiable expense and delay. (b) Such rules may be inconsistent or conflict with the procedures provided in this Code. However, the defendant in any proceeding before the Traffic Court shall have the right to appeal to the Superior Court and obtain a trial de novo in any case. (c) Nothing in this Section or any rule promulgated pursuant thereto shall preclude the Attorney General from prosecuting any offense in the Superior Court prior to the entry of a plea of guilty or commencement of trial. 2024 NOTE: Superior Court Traffic Court Rules adopted by Prom. Order No. PRM 20-003-02 (Apr. 3, 2024). COMMENT: This Section continues the existing relationship between the Superior Court and its Traffic Court division.
§ 1.11. Rights of Defendant Enumerated.
In any criminal action, the defendant is entitled:
- (a) To a speedy and public trial. (b) To defend in person and with counsel. Every defendant accused of a crime who is financially unable to employ counsel shall be entitled to have counsel assigned at public expense to represent him at every stage of the proceedings from his initial appearance before the court through appeal, unless he waives such appointment. (c) To be informed of the nature and cause of the accusation against him. (d) To be exempt from being called to testify and from testifying against himself. (e) To be allowed to testify in his own behalf; if he fails to testify, such failure shall not be construed as evidence against him; but if he does so testify, he may be cross-examined in the same manner as other witnesses. (f) To have compulsory process issued for obtaining witnesses in his behalf. (g) To produce witnesses on his behalf and to be confronted with the witnesses against him, in the presence of the court, except that:
8 GCA CRIMINAL PROCEDURE CH. 1 GENERAL PROVISIONS
(1) Hearsay evidence may be admitted to the extent that it is otherwise admissible in a criminal action under the law of Guam. (2) The deposition of a witness taken in the action may be read to the extent that is otherwise admissible under § 70.70. (h) To appeal. 2024 NOTE : Reference to ‘Territory’ replaced with ‘Guam’ pursuant to 1 GCA § 420. COURT DECISIONS: C.A.9 1969. The first nine Amendments of the U.S. Constitution are made directly applicable to the federal prosecutions in the territory, but only those which are mandated upon the states by the second sentence of the 14th Amendment of the U.S. Constitution are mandated upon Guam by incorporation in the Organic Act of the second sentence of the 14th Amendment of the U.S. Constitution. People v. Inglett, 417 F.2d 123 (1969). D. C.Guam App. Div. 1979. The Prosecutor’s reference to Defendant’s silence is not in violation of the 5th Amendment of the U.S. Constitution if the reference is not intended to raise, nor does raise, in the jury’s mind a negative inference or an inference of guilt of the Defendant. People v. Pador, D.C.Guam, App.Div., Cr. 50-A. Decided January 24, 1978. D.C.Guam App.Div. 1981. The right of defendant Okada to a speedy trial [§ 1.11(a)] was violated when her trial date was postponed to allow the presiding judge to preside over this trial even though a trial date was opened before another court on the scheduled date and there was no reason to show why the trial should not be held on the scheduled date other than the preference of the presiding judge. People v. Okada, D.C.Guam App.Div.1980, Cr.App. 78-00041A; Government’s appeal from decision dismissed by Ninth Circuit for lack of authority by the Government to appeal criminal cases to it, People v. Okada, C.A.9 1981, _____ F.2d _____. But Congress corrected the lack of power to appeal when it enacted 48 U.S.C.A. § 1493 in 1984. D.C. GUAM APP. DIV. 1981. This case was remanded to the Superior Court to determine whether, because the counsel in the action was defending two defendants and where it is clear that the counsel emphasized the defense of one person and