reglab/statecodes huggingface dataset:
2023 Montana Code Annotated › Title 46. Criminal Procedure › Chapter 16. Trial › Part 1. General Provisions › 46-16-111. Formation of trial jury

46-16-111. Formation of trial jury.
(1) Trial juries in criminal cases are formed in the same manner as trial juries in civil cases.
(2) The qualifications of jurors and excuses from jury duty are prescribed in Title 3, chapter 15, part 3.
History: (1)En. 95-1905 by Sec. 1, Ch. 196, L. 1967; Sec. 95-1905, R.C.M. 1947; (2)En. 95-1909 by Sec. 1, Ch. 196, L. 1967; amd. Sec. 1, Ch. 131, L. 1974; Sec. 95-1909, R.C.M. 1947; amd. Sec. 28, Ch. 184, L. 1977; R.C.M. 1947, 95-1905, 95-1909(2)(a); amd. Sec. 5, Ch. 51, L. 1981; amd. Sec. 2, Ch. 92, L. 1989; amd. Sec. 189, Ch. 800, L. 1991; Sec. 46-16-301, MCA 1989; redes. 46-16-111 by Code Commissioner, 1991.
2023 Montana Code Annotated › Title 46. Criminal Procedure › Chapter 16. Trial › Part 1. General Provisions › 46-16-112. Motion to discharge jury panel

46-16-112. Motion to discharge jury panel.
(1) Any objection to the manner in which a jury panel has been selected or drawn must be raised by a motion to discharge the jury panel. Except for good cause shown, the motion must be made at least 5 days prior to the term for which the jury is drawn.
(2) The motion must be in writing supported by affidavit and must state facts that show that the jury panel was improperly selected or drawn.
(3) If the motion states facts that show that the jury panel has been improperly selected or drawn, it is the duty of the court to conduct a hearing. The burden of proof is on the movant.
(4) If the court finds that the jury panel was improperly selected or drawn, the court shall order the jury panel discharged and the selection or drawing of a new panel in the manner provided by law.
History: En. 95-1908 by Sec. 1, Ch. 196, L. 1967; R.C.M. 1947, 95-1908; amd. Sec. 190, Ch. 800, L. 1991; Sec. 46-16-302, MCA 1989; redes. 46-16-112 by Code Commissioner, 1991.
2023 Montana Code Annotated › Title 46. Criminal Procedure › Chapter 16. Trial › Part 1. General Provisions › 46-16-114. Examination of prospective jurors

46-16-114. Examination of prospective jurors.
(1) The clerk of court shall make available to the parties a list of prospective jurors with their questionnaires when the names have been drawn.
(2) The prosecutor and the defendant or the defendant's attorney shall conduct the examination of prospective jurors. The judge may conduct an additional examination. The judge may limit the examination by the defendant, the defendant's attorney, or the prosecutor if the examination is improper.
History: En. 95-1909 by Sec. 1, Ch. 196, L. 1967; amd. Sec. 1, Ch. 131, L. 1974; amd. Sec. 28, Ch. 184, L. 1977; R.C.M. 1947, 95-1909(1), (3); amd. Sec. 191, Ch. 800, L. 1991; Sec. 46-16-303, MCA 1989; redes. 46-16-114 by Code Commissioner, 1991.
2023 Montana Code Annotated › Title 46. Criminal Procedure › Chapter 16. Trial › Part 1. General Provisions › 46-16-115. Challenges for cause

46-16-115. Challenges for cause.
(1) Each party may challenge jurors for cause, and each challenge must be tried by the court.
(2) A challenge for cause may be taken for all or any of the following reasons or for any other reason that the court determines:
(a) having consanguinity or relationship to the defendant or to the person who is alleged to be injured by the offense charged or on whose complaint the prosecution was instituted;
(b) standing in the relation of guardian and ward, attorney and client, master and servant, landlord and tenant, or debtor and creditor with or being a member of the family or in the employment of the defendant or the person who is alleged to be injured by the offense charged or on whose complaint the prosecution was instituted;
(c) being a party adverse to the defendant in a civil action or having complained against or been accused by the defendant in a criminal prosecution;
(d) having served on the grand jury that found the indictment or on a coroner's jury that inquired into the death of a person whose death is the subject of the indictment or information;
(e) having served on a trial jury that tried another person for the offense charged or a related offense;
(f) having been a member of a jury formerly sworn to try the same charge, the verdict of which was set aside or which was discharged without verdict after the case was submitted to it;
(g) having served as a juror in a civil action brought against the defendant for the act charged as an offense;
(h) if the offense charged is punishable with death, having any conscientious opinions concerning the punishment as would preclude finding the defendant guilty, in which case the person must neither be permitted nor compelled to serve as a juror;
(i) having a belief that the punishment fixed by law is too severe for the offense charged; or
(j) having a state of mind in reference to the case or to either of the parties that would prevent the juror from acting with entire impartiality and without prejudice to the substantial rights of either party.
(3) An excuse from service on a jury is not a cause of challenge but the privilege of the person excused.
History: En. 95-1909 by Sec. 1, Ch. 196, L. 1967; amd. Sec. 1, Ch. 131, L. 1974; amd. Sec. 28, Ch. 184, L. 1977; R.C.M. 1947, 95-1909(2)(b), (4); amd. Sec. 6, Ch. 51, L. 1981; amd. Sec. 192, Ch. 800, L. 1991; Sec. 46-16-304, MCA 1989; redes. 46-16-115 by Code Commissioner, 1991.
2023 Montana Code Annotated › Title 46. Criminal Procedure › Chapter 16. Trial › Part 1. General Provisions › 46-16-116. Peremptory challenges

46-16-116. Peremptory challenges.
(1) Each defendant is allowed eight peremptory challenges in capital cases and six in all other cases tried in the district court before a 12-person jury. There may not be additional challenges for separate counts charged in the indictment or information.
(2) If the indictment or information charges a capital offense as well as lesser offenses in separate counts, the maximum number of challenges is eight.
(3) The state is allowed the same number of peremptory challenges as all of the defendants.
(4) In a criminal case tried before a six-person jury, the prosecution and all the defendants are allowed three peremptory challenges each.
(5) When the parties in a criminal case in the district court agree upon a jury consisting of a number of persons other than 6 or 12, they shall also agree in writing upon the number of peremptory challenges to be allowed.
History: En. 95-1909 by Sec. 1, Ch. 196, L. 1967; amd. Sec. 1, Ch. 131, L. 1974; amd. Sec. 28, Ch. 184, L. 1977; R.C.M. 1947, 95-1909(6); amd. Sec. 193, Ch. 800, L. 1991; Sec. 46-16-305, MCA 1989; redes. 46-16-116 by Code Commissioner, 1991; amd. Sec. 36, Ch. 262, L. 1993.
2023 Montana Code Annotated › Title 46. Criminal Procedure › Chapter 16. Trial › Part 1. General Provisions › 46-16-117. Time for challenges

46-16-117. Time for challenges.
All challenges must be interposed before the jury is sworn unless the cause of challenge is discovered after the jury is sworn and before the introduction of any evidence, in which case the court, in its discretion, may allow the challenge to be interposed.
History: En. 95-1909 by Sec. 1, Ch. 196, L. 1967; amd. Sec. 1, Ch. 131, L. 1974; amd. Sec. 28, Ch. 184, L. 1977; R.C.M. 1947, 95-1909(5); Sec. 46-16-306, MCA 1989; redes. 46-16-117 by Code Commissioner, 1991.
2023 Montana Code Annotated › Title 46. Criminal Procedure › Chapter 16. Trial › Part 1. General Provisions › 46-16-118. Alternate jurors

46-16-118. Alternate jurors.
(1) The court may direct that one or more alternate jurors be selected in the same manner as principal jurors. The alternate jurors shall take the same oath as the principal jurors.
(2) Each party shall have one additional peremptory challenge for each alternate juror.
(3) Alternate jurors, in the order in which they are called, shall replace jurors who, prior to the time the jury arrives at its verdict, become unable or disqualified to perform their duties. An alternate juror may not join the jury in its deliberation unless called upon by the court to replace a member of the jury. An alternate juror's conduct during the period in which the jury is considering its verdict is regulated by instructions of the trial court. An alternate juror who does not replace a principal juror must be discharged after the jury arrives at its verdict.
History: En. 95-1909 by Sec. 1, Ch. 196, L. 1967; amd. Sec. 1, Ch. 131, L. 1974; amd. Sec. 28, Ch. 184, L. 1977; R.C.M. 1947, 95-1909(7); amd. Sec. 194, Ch. 800, L. 1991; Sec. 46-16-307, MCA 1989; redes. 46-16-118 by Code Commissioner, 1991.
2023 Montana Code Annotated › Title 46. Criminal Procedure › Chapter 16. Trial › Part 1. General Provisions › 46-16-120. Misdemeanor offenses

46-16-120. Misdemeanor offenses.
In all cases in which the defendant is charged with a misdemeanor offense, the defendant may appear by counsel only, although the court may require the personal attendance of the defendant at any time.
History: En. Sec. 125, Ch. 800, L. 1991.
2023 Montana Code Annotated › Title 46. Criminal Procedure › Chapter 16. Trial › Part 1. General Provisions › 46-16-121. Felony offenses

46-16-121. Felony offenses.
(1) Except as otherwise provided in Title 46, the defendant in all cases in which a felony is charged must be present at the initial appearance, arraignment, entry of plea, preliminary examination, trial, and sentencing or when otherwise required by the court.
(2) The defendant may be present at all other proceedings.
(3) The presence of the defendant is not required before the supreme court.
History: En. Sec. 126, Ch. 800, L. 1991.
2023 Montana Code Annotated › Title 46. Criminal Procedure › Chapter 16. Trial › Part 1. General Provisions › 46-16-122. Absence of defendant from trial

46-16-122. Absence of defendant from trial.
(1) In a misdemeanor case, if the defendant fails to appear in person, either at the time set for the trial or at any time during the course of the trial and if the defendant's counsel is authorized to act on the defendant's behalf, the court shall proceed with the trial unless good cause for continuance exists.
(2) If the defendant's counsel is not authorized to act on the defendant's behalf as provided in subsection (1) or if the defendant is not represented by counsel, the court, in its discretion, may do one or more of the following:
(a) order a continuance;
(b) order bail forfeited;
(c) issue an arrest warrant; or
(d) proceed with the trial after finding that the defendant had knowledge of the trial date and is voluntarily absent.
(3) After the trial of a felony offense has commenced in the defendant's presence, the absence of the defendant during the trial may not prevent the trial from continuing up to and including the return of a verdict if the defendant:
(a) has been removed from the courtroom for disruptive behavior after receiving a warning that removal will result if the defendant persists in conduct that is so disruptive that the trial cannot be carried on with the defendant in the courtroom; or
(b) is voluntarily absent and the offense is not one that is punishable by death.
(4) Nothing in this section limits the right of the court to order the defendant to be personally present at the trial for purposes of identification unless defense counsel stipulates to the issue of identity.
History: En. Sec. 127, Ch. 800, L. 1991; amd. Sec. 37, Ch. 262, L. 1993.
2023 Montana Code Annotated › Title 46. Criminal Procedure › Chapter 16. Trial › Part 1. General Provisions › 46-16-123. Absence of defendant on receiving verdict or at sentencing

46-16-123. Absence of defendant on receiving verdict or at sentencing.
(1) In all misdemeanor cases, the verdict may be returned and the sentence imposed without the defendant being present.
(2) (a) In all felony cases, the defendant shall appear in person when the verdict is returned or the sentence is imposed unless, after the exercise of due diligence to procure the defendant's presence, the court finds that it is in the interest of justice that the verdict be returned and the sentence be pronounced in the defendant's absence.
(b) For purposes of subsection (2)(a), the defendant's appearance may be through the use of two-way electronic audio-video communication, allowing all of the participants to be heard in the courtroom by all present and allowing the party speaking to be seen. Audio-video communication may be used if neither party objects and the court agrees to its use and has informed the defendant that the defendant has the right to object to its use. The audio-video communication must operate as provided in 46-12-201.
History: En. Sec. 128, Ch. 800, L. 1991; amd. Sec. 4, Ch. 222, L. 2005.
2023 Montana Code Annotated › Title 46. Criminal Procedure › Chapter 16. Trial › Part 1. General Provisions › 46-16-129. Pretrial diversion program state special revenue account

46-16-129. Pretrial diversion program state special revenue account.
(1) There is an account in the state special revenue fund established in 17-2-102 to the credit of the judicial branch to be known as the pretrial diversion program account.
(2) The purpose of the account is to fund a pilot project in five counties to analyze the costs and benefits of the following:
(a) the risk associated with an offender being released into the community prior to the offender's trial date; and
(b) the potential or actual savings in jail costs for not having the offender incarcerated during that time.
History: En. Sec. 1, Ch. 456, L. 2019.
2023 Montana Code Annotated › Title 46. Criminal Procedure › Chapter 16. Trial › Part 1. General Provisions › 46-16-130. Pretrial diversion

46-16-130. Pretrial diversion.
(1) (a) Prior to the filing of a charge, the prosecutor and a defendant who has counsel or who has voluntarily waived counsel may agree to the deferral of a prosecution for a specified period of time based on one or more of the following conditions:
(i) that the defendant may not commit any offense;
(ii) that the defendant may not engage in specified activities, conduct, and associations bearing a relationship to the conduct upon which the charge against the defendant is based;
(iii) that the defendant shall participate in a supervised rehabilitation program, which may include treatment, counseling, training, or education;
(iv) that the defendant shall make restitution in a specified manner for harm or loss caused by the offense; or
(v) any other reasonable conditions.
(b) The agreement must be in writing, must be signed by the parties, and must state that the defendant waives the right to speedy trial for the period of deferral. The agreement may include stipulations concerning the admissibility of evidence, specified testimony, or dispositions if the deferral of the prosecution is terminated and there is a trial on the charge.
(c) The prosecution must be deferred for the period specified in the agreement unless there has been a violation of its terms.
(d) The agreement must be terminated and the prosecution automatically dismissed with prejudice upon expiration and compliance with the terms of the agreement.
(2) A condition of pretrial diversion may be for the court to refer a defendant for evaluation to determine the appropriateness of proceedings pursuant to Title 53, chapter 21.
(3) Except as provided in 46-1-1104 and 46-1-1204, after a charge has been filed, a deferral of prosecution may be entered into only after the prosecutor provides notice to the court.
(4) A prosecution for a violation of 61-8-1002 or aggravated driving under the influence as defined in 61-8-1001 may not be deferred.
History: En. Sec. 129, Ch. 800, L. 1991; amd. Sec. 38, Ch. 262, L. 1993; amd. Sec. 4, Ch. 447, L. 1995; amd. Sec. 5, Ch. 342, L. 2001; amd. Sec. 3, Ch. 153, L. 2013; amd. Sec. 1, Ch. 67, L. 2015; amd. Sec. 2, Ch. 424, L. 2015; amd. Sec. 24, Ch. 498, L. 2021.
2023 Montana Code Annotated › Title 46. Criminal Procedure › Chapter 16. Trial › Part 1. General Provisions › 46-16-131. Justifiable use of force -- burden of proof

46-16-131. Justifiable use of force -- burden of proof.
In a criminal trial, when the defendant has offered evidence of justifiable use of force, the state has the burden of proving beyond a reasonable doubt that the defendant's actions were not justified.
History: En. Sec. 9, Ch. 332, L. 2009.
2023 Montana Code Annotated › Title 46. Criminal Procedure › Chapter 16. Trial › Part 2. Rules of Evidence for Criminal Cases › 46-16-201. Applicability of rules of evidence and civil rules

46-16-201. Applicability of rules of evidence and civil rules.
The Montana Rules of Evidence and the statutory rules of evidence in civil actions are applicable also to criminal actions, except as otherwise provided.
History: En. Sec. 2078, Pen. C. 1895; re-en. Sec. 9279, Rev. C. 1907; re-en. Sec. 11977, R.C.M. 1921; Cal. Pen. C. Sec. 1102; re-en. Sec. 11977, R.C.M. 1935; Sec. 94-7209, R.C.M. 1947; redes. 95-3001 by Sec. 29, Ch. 513, L. 1973; R.C.M. 1947, 95-3001; amd. Sec. 195, Ch. 800, L. 1991.
2023 Montana Code Annotated › Title 46. Criminal Procedure › Chapter 16. Trial › Part 2. Rules of Evidence for Criminal Cases › 46-16-202. Evidence on trial for treason

46-16-202. Evidence on trial for treason.
Upon a trial for treason, the defendant cannot be convicted unless upon the testimony of two witnesses to the same overt act or upon confession in open court, nor can evidence be admitted of an overt act not expressly charged in the indictment or information, nor can the defendant be convicted unless one or more overt acts be expressly alleged therein.
History: En. Sec. 169, p. 243, Bannack Stat.; re-en. Sec. 294, p. 235, Cod. Stat. 1871; re-en. Sec. 294, 3d Div. Rev. Stat. 1879; re-en. Sec. 295, 3d Div. Comp. Stat. 1887; en. Sec. 2079, Pen. C. 1895; re-en. Sec. 9280, Rev. C. 1907; re-en. Sec. 11978, R.C.M. 1921; Cal. Pen. C. Sec. 1103; re-en. Sec. 11978, R.C.M. 1935; Sec. 94-7210, R.C.M. 1947; redes. 95-3002 by Sec. 29, Ch. 513, L. 1973; R.C.M. 1947, 95-3002.
2023 Montana Code Annotated › Title 46. Criminal Procedure › Chapter 16. Trial › Part 2. Rules of Evidence for Criminal Cases › 46-16-204. Defendant presumed innocent -- reasonable doubt

46-16-204. Defendant presumed innocent -- reasonable doubt.
A defendant in a criminal action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt whether the defendant's guilt is satisfactorily shown, the defendant must be found not guilty.
History: En. Sec. 186, p. 245, Bannack Stat.; re-en. Sec. 307, p. 237, Cod. Stat. 1871; re-en. Sec. 307, 3d Div. Rev. Stat. 1879; re-en. Sec. 308, 3d Div. Comp. Stat. 1887; en. Sec. 2072, Pen. C. 1895; re-en. Sec. 9273, Rev. C. 1907; re-en. Sec. 11971, R.C.M. 1921; Cal. Pen. C. Sec. 1096; re-en. Sec. 11971, R.C.M. 1935; Sec. 94-7203, R.C.M. 1947; redes. 95-2901 by Sec. 29, Ch. 513, L. 1973; R.C.M. 1947, 95-2901; amd. Sec. 196, Ch. 800, L. 1991; Sec. 46-16-601, MCA 1989; redes. 46-16-204 by Code Commissioner, 1991.
2023 Montana Code Annotated › Title 46. Criminal Procedure › Chapter 16. Trial › Part 2. Rules of Evidence for Criminal Cases › 46-16-211. Who are competent witnesses

46-16-211. Who are competent witnesses.
The rules for determining the competency of witnesses in civil actions are applicable also to criminal actions and proceedings, except as otherwise provided in this code.
History: En. Sec. 2440, Pen. C. 1895; re-en. Sec. 9482, Rev. C. 1907; re-en. Sec. 12175, R.C.M. 1921; Cal. Pen. C. Sec. 1321; re-en. Sec. 12175, R.C.M. 1935; Sec. 94-8801, R.C.M. 1947; redes. 95-3010 by Sec. 29, Ch. 513, L. 1973; R.C.M. 1947, 95-3010.
2023 Montana Code Annotated › Title 46. Criminal Procedure › Chapter 16. Trial › Part 2. Rules of Evidence for Criminal Cases › 46-16-212. Competency of spouses

46-16-212. Competency of spouses.
(1) Neither spouse may testify to the communications or conversations between spouses that occur during their marriage unless:
(a) consent of the defendant-spouse is obtained;
(b) the defendant-spouse has been charged with an act of criminal violence against the other; or
(c) the defendant-spouse has been charged with abuse, abandonment, or neglect of the other spouse or either spouse's children.
(2) Except as provided in subsection (1), a spouse is a competent witness for or against the other spouse.
History: En. Sec. 2441, Pen. C. 1895; re-en. Sec. 9483, Rev. C. 1907; amd. Sec. 1, Ch. 111, L. 1915; re-en. Sec. 12176, R.C.M. 1921; Cal. Pen. C. Sec. 1322; re-en. Sec. 12176, R.C.M. 1935; Sec. 94-8802, R.C.M. 1947; redes. 95-3011 by Sec. 29, Ch. 513, L. 1973; amd. Sec. 50, Ch. 184, L. 1977; R.C.M. 1947, 95-3011; amd. Sec. 197, Ch. 800, L. 1991.
2023 Montana Code Annotated › Title 46. Criminal Procedure › Chapter 16. Trial › Part 2. Rules of Evidence for Criminal Cases › 46-16-213. Testimony of person legally accountable

46-16-213. Testimony of person legally accountable.
A person may not be found guilty of an offense on the testimony of one responsible or legally accountable for the same offense, as defined in 45-2-301, unless the testimony is corroborated by other evidence that in itself and without the aid of the testimony of the one responsible or legally accountable for the same offense tends to connect the defendant with the commission of the offense.
History: En. 95-3012 by Sec. 13, Ch. 513, L. 1973; amd. Sec. 51, Ch. 184, L. 1977; R.C.M. 1947, 95-3012; amd. Sec. 198, Ch. 800, L. 1991.
2023 Montana Code Annotated › Title 46. Criminal Procedure › Chapter 16. Trial › Part 2. Rules of Evidence for Criminal Cases › 46-16-215. Use of confession

46-16-215. Use of confession.
Before an extrajudicial confession of the defendant to the crime charged may be admitted into evidence, the prosecution shall introduce independent evidence tending to establish the commission of the crime charged.
History: En. Sec. 199, Ch. 800, L. 1991.
2023 Montana Code Annotated › Title 46. Criminal Procedure › Chapter 16. Trial › Part 2. Rules of Evidence for Criminal Cases › 46-16-216. Repealed

46-16-216. Repealed.
Sec. 5, Ch. 488, L. 2007.
History: En. Sec. 200, Ch. 800, L. 1991; amd. Sec. 2, Ch. 288, L. 1991.
2023 Montana Code Annotated › Title 46. Criminal Procedure › Chapter 16. Trial › Part 2. Rules of Evidence for Criminal Cases › 46-16-226. Definitions

46-16-226. Definitions.
As used in 46-16-226 through 46-16-229, the following definitions apply:
(1) "Child witness" means an individual who is:
(a) 13 years of age or younger at the time the individual is called as a witness in a criminal proceeding involving a sexual or violent offense; or
(b) under 16 years of age at the time that the individual is called as a witness in a criminal proceeding involving a sexual or violent offense and who is an individual with a developmental disability, as defined in 53-20-102.
(2) "Sexual offense" means any violation of or attempt, solicitation, or conspiracy to commit a violation of 45-5-502, 45-5-503, 45-5-504, 45-5-507, 45-5-625, [45-5-705(1)(b)], 45-5-706, or 45-5-711.
(3) "Violent offense" means any violation of or attempt, solicitation, or conspiracy to commit a violation of 45-5-102, 45-5-103, 45-5-202, 45-5-206, 45-5-210, 45-5-212, 45-5-213, 45-5-215, 45-5-302, 45-5-303, 45-5-401, 45-6-103, or 45-9-132.
History: En. Sec. 1, Ch. 488, L. 2007; amd. Sec. 12, Ch. 394, L. 2017; amd. Sec. 22, Ch. 167, L. 2023.
2023 Montana Code Annotated › Title 46. Criminal Procedure › Chapter 16. Trial › Part 2. Rules of Evidence for Criminal Cases › 46-16-227. Raising issue of testimony of child witness outside presence of defendant -- motion by prosecution or defense

46-16-227. Raising issue of testimony of child witness outside presence of defendant -- motion by prosecution or defense.
Upon a motion by the prosecution or defense if the defense intends to call a child witness other than the victim in its case in chief, a court shall conduct a hearing to consider whether the testimony of a child witness may be taken outside the presence of the defendant and communicated to the courtroom by two-way electronic audio-video communication.
History: En. Sec. 2, Ch. 488, L. 2007.
2023 Montana Code Annotated › Title 46. Criminal Procedure › Chapter 16. Trial › Part 2. Rules of Evidence for Criminal Cases › 46-16-228. Hearing -- procedure -- evidence that may be received -- protection for child witness

46-16-228. Hearing -- procedure -- evidence that may be received -- protection for child witness.
(1) A court shall conduct a hearing on a motion made under 46-16-227.
(2) The prosecution, if the prosecution made the motion pursuant to 46-16-227, or the defense, if the defense made the motion pursuant to 46-16-227, shall present evidence at the hearing made on the motion to prove the need for an order under 46-16-229.
(3) In ruling on the motion, the court shall consider the following factors:
(a) the age and maturity of the child witness;
(b) the possible effect that testifying in person might have on the child witness;
(c) the extent of the trauma that the child witness has already suffered;
(d) the nature of the testimony to be given by the child witness;
(e) the nature of the offense;
(f) threats made to the child witness or the child witness's family in order to prevent or dissuade the child witness from attending or giving testimony at any trial or court proceeding;
(g) conduct on the part of the defendant or the defendant's attorney that causes the child witness to be unable to continue the child witness's testimony; and
(h) any other matter that the court considers relevant.
(4) The court may consider hearsay evidence of reports or testimony by psychologists who have examined or treated the child witness.
History: En. Sec. 3, Ch. 488, L. 2007.
2023 Montana Code Annotated › Title 46. Criminal Procedure › Chapter 16. Trial › Part 2. Rules of Evidence for Criminal Cases › 46-16-229. Order for two-way electronic audio-video communication testimony -- finding by court -- procedure for conducting testimony

46-16-229. Order for two-way electronic audio-video communication testimony -- finding by court -- procedure for conducting testimony.
(1) The court shall order that the testimony of a child witness be taken by two-way electronic audio-video communication if, after considering the factors set forth in 46-16-228(3), the court finds by clear and convincing evidence that the child witness is unable to testify in open court in the presence of the defendant for any of the following reasons:
(a) the child witness is unable to testify because of fear caused by the presence of the defendant;
(b) the child witness would suffer substantial emotional trauma from testifying in the presence of the defendant; or
(c) conduct by the defendant or the defendant's attorney causes the child witness to be unable to continue testifying.
(2) If the court orders that the child witness's testimony be taken by two-way electronic audio-video communication, the testimony must be taken outside the courtroom in a suitable location designated by the judge. Examination and cross-examination of the child witness must proceed as though the child witness were testifying in the courtroom. The only persons who may be permitted in the room with the child witness during the child's testimony are:
(a) the judge or a judicial officer appointed by the court;
(b) the prosecutor;
(c) the defense attorney;
(d) the child's attorney;
(e) persons necessary to operate the two-way electronic audio-video communication equipment; and
(f) any person whose presence is determined by the court to be necessary to the welfare and well-being of the child witness.
(3) The defendant must be afforded a means of private, contemporaneous communication with the defendant's attorney during the testimony.
(4) This section does not preclude the presence of both a victim and the defendant in the courtroom together for purposes of establishing or challenging the identification of the defendant when identification is a legitimate issue in the proceeding.
History: En. Sec. 4, Ch. 488, L. 2007.
2023 Montana Code Annotated › Title 46. Criminal Procedure › Chapter 16. Trial › Part 4. Order of Trial › 46-16-401. Order of trial

46-16-401. Order of trial.
(1) After the jury is sworn but before the introduction of any evidence, the court may give the jury general instructions concerning the conduct of the trial. The court shall give the jury such cautionary instructions as may be required during the course of the trial.
(2) The prosecutor may make an opening statement and shall offer evidence in support of the prosecution. The defendant may make an opening statement prior to the prosecutor's offer of evidence or at the close of the prosecution's case but prior to the defendant's offer of evidence.
(3) The prosecutor and the defendant may, respectively, offer rebutting testimony only. However, the court, for good cause, may permit either party to offer evidence upon the original case at any time before the close of evidence.
(4) Prior to final arguments, the court shall inform the parties as to the instructions that will be given and read them to the jury.
(5) A written copy of the instructions, both general and special, must be delivered to the jury for its consideration during deliberations following the final arguments.
History: En. 95-1910 by Sec. 1, Ch. 196, L. 1967; amd. Sec. 18, Ch. 420, L. 1975; R.C.M. 1947, 95-1910; amd. Sec. 201, Ch. 800, L. 1991.
2023 Montana Code Annotated › Title 46. Criminal Procedure › Chapter 16. Trial › Part 4. Order of Trial › 46-16-402. When order may be departed from

46-16-402. When order may be departed from.
For good cause shown and in the discretion of the court, the order prescribed in 46-16-401 may be departed from.
History: En. 95-1911 by Sec. 1, Ch. 196, L. 1967; R.C.M. 1947, 95-1911; amd. Sec. 202, Ch. 800, L. 1991.
2023 Montana Code Annotated › Title 46. Criminal Procedure › Chapter 16. Trial › Part 4. Order of Trial › 46-16-403. Evidence insufficient to go to jury

46-16-403. Evidence insufficient to go to jury.
When, at the close of the prosecution's evidence or at the close of all the evidence, the evidence is insufficient to support a finding or verdict of guilty, the court may, on its own motion or on the motion of the defendant, dismiss the action and discharge the defendant. However, prior to dismissal, the court may allow the case to be reopened for good cause shown.
History: En. 95-1909 by Sec. 1, Ch. 196, L. 1967; amd. Sec. 1, Ch. 131, L. 1974; amd. Sec. 28, Ch. 184, L. 1977; R.C.M. 1947, 95-1909(9); amd. Sec. 203, Ch. 800, L. 1991.
2023 Montana Code Annotated › Title 46. Criminal Procedure › Chapter 16. Trial › Part 4. Order of Trial › 46-16-410. Settlement of jury instructions

46-16-410. Settlement of jury instructions.
(1) Any party may request special jury instructions. All requests for instructions must conform to the Uniform District Court Rules, and all instructions must be settled by the court out of the presence of the jury.
(2) A record must be made at the settlement of instructions.
(3) A party may not assign as error any portion of the instructions or omission from the instructions unless an objection was made specifically stating the matter objected to, and the grounds for the objection, at the settlement of instructions.
(4) The presence of the defendant is not required during the settlement of instructions.
History: En. Sec. 204, Ch. 800, L. 1991.
2023 Montana Code Annotated › Title 46. Criminal Procedure › Chapter 16. Trial › Part 5. Conduct of Jury › 46-16-501. Conduct of jury during trial

46-16-501. Conduct of jury during trial.
(1) The jurors sworn to try an action may at any time, in the discretion of the court, be permitted to separate or be ordered to remain sequestered in the charge of a proper officer. If sequestered, the officer must be sworn to keep the jurors together, to allow no person to communicate with the jury or to personally communicate with the jury on any subject connected with the trial, and to return the jury into court as directed.
(2) Whether permitted to separate or sequestered, at each adjournment of the court, the jurors must be admonished that it is their duty not to converse among themselves or with anyone else on any subject connected with the trial or to form or express any opinion on the trial until the cause is finally submitted to them.
(3) In all cases appealed to the supreme court, it must be conclusively considered that the court or judge gave the proper admonition in accordance with the provision of subsection (2) unless the record affirmatively shows the contrary.
History: En. 95-1904, 95-1913 by Sec. 1, Ch. 196, L. 1967; R.C.M. 1947, 95-1904(part), 95-1913(a), (e); amd. Sec. 205, Ch. 800, L. 1991.
2023 Montana Code Annotated › Title 46. Criminal Procedure › Chapter 16. Trial › Part 5. Conduct of Jury › 46-16-502. View of relevant place or property

46-16-502. View of relevant place or property.
When the court considers it proper that the jury view any place or personal property pertinent to the case, it will order the jury to be conducted in a body under the custody of the sheriff or bailiff to view the place or personal property in the presence of the court, the prosecutor, the defendant, and the defendant's counsel. The place or personal property will be shown them by a person appointed by the court for that purpose, and they may personally inspect the place or personal property. The sheriff or bailiff must be sworn to allow no person to speak or otherwise communicate with the jury or to personally communicate with the jury on any subject connected with the trial and to return them into the courtroom without unnecessary delay or at a specified time, as the court may direct.
History: En. 95-1912 by Sec. 1, Ch. 196, L. 1967; R.C.M. 1947, 95-1912; amd. Sec. 206, Ch. 800, L. 1991.
2023 Montana Code Annotated › Title 46. Criminal Procedure › Chapter 16. Trial › Part 5. Conduct of Jury › 46-16-503. Conduct of jury after retirement -- advice from court

46-16-503. Conduct of jury after retirement -- advice from court.
(1) When the jury retires to consider its verdict, an officer of the court must be appointed to keep the jurors together and to prevent conversations between the jurors and others.
(2) After the jury has retired for deliberation, if there is any disagreement among the jurors as to the testimony or if the jurors desire to be informed on any point of law arising in the cause, they shall notify the officer appointed to keep them together, who shall then notify the court. The information requested may be given, in the discretion of the court, after consultation with the parties.
History: En. 95-1913 by Sec. 1, Ch. 196, L. 1967; R.C.M. 1947, 95-1913(b), (d); amd. Sec. 18, Ch. 116, L. 1979; amd. Sec. 207, Ch. 800, L. 1991.
2023 Montana Code Annotated › Title 46. Criminal Procedure › Chapter 16. Trial › Part 5. Conduct of Jury › 46-16-504. Items that may be taken into jury room

46-16-504. Items that may be taken into jury room.
Upon retiring for deliberation, the jurors may take with them the written jury instructions read by the court, notes of the proceedings taken by themselves, and all exhibits that have been received as evidence in the cause that in the opinion of the court will be necessary.
History: En. 95-1913 by Sec. 1, Ch. 196, L. 1967; R.C.M. 1947, 95-1913(c); amd. Sec. 208, Ch. 800, L. 1991.
2023 Montana Code Annotated › Title 46. Criminal Procedure › Chapter 16. Trial › Part 5. Conduct of Jury › 46-16-505. Activity of court during jury's absence

46-16-505. Activity of court during jury's absence.
While the jury is absent, the court may adjourn or conduct other business, but it must be open for every purpose connected with the cause submitted to the jury until a verdict is returned or the jury discharged.
History: En. 95-1914 by Sec. 1, Ch. 196, L. 1967; R.C.M. 1947, 95-1914; amd. Sec. 209, Ch. 800, L. 1991.
2023 Montana Code Annotated › Title 46. Criminal Procedure › Chapter 16. Trial › Part 6. Verdict -- Disposition of Defendant › 46-16-603. Form of verdict

46-16-603. Form of verdict.
(1) The jury shall return a verdict as instructed by the court. The verdict must be unanimous in all criminal actions. The verdict must be signed by the lead juror and returned by the jury to the judge in open court.
(2) If there are two or more defendants, the jury, at any time during its deliberations, may return a verdict or verdicts with respect to a defendant or defendants as to whom it has agreed. If the jury cannot agree with respect to all, the defendant or defendants as to whom it does not agree may be tried again.
History: Ap. p. Sec. 1, Ch. 196, L. 1967; amd. Sec. 1, Ch. 131, L. 1974; amd. Sec. 28, Ch. 184, L. 1977; Sec. 95-1909, R.C.M. 1947; Ap. p. Sec. 1, Ch. 196, L. 1967; Sup. Ct. Ord. 11450-2-3-4, Oct. 10, 1968, eff. Dec. 1, 1968; amd. Sec. 2, Ch. 4, L. 1973; amd. Sec. 29, Ch. 184, L. 1977; Sec. 95-1915, R.C.M. 1947; R.C.M. 1947, 95-1909(8), 95-1915(1) thru (3); amd. Sec. 210, Ch. 800, L. 1991; amd. Sec. 1751, Ch. 56, L. 2009.
2023 Montana Code Annotated › Title 46. Criminal Procedure › Chapter 16. Trial › Part 6. Verdict -- Disposition of Defendant › 46-16-604. Poll of jury

46-16-604. Poll of jury.
When a verdict is returned, the jury shall be polled at the request of any party or upon the court's own motion. If upon the poll there is not the required concurrence, the jury may be directed to retire for further deliberations or may be discharged.
History: En. 95-1915 by Sec. 1, Ch. 196, L. 1967; Sup. Ct. Ord. 11450-2-3-4, Oct. 10, 1968, eff. Dec. 1, 1968; amd. Sec. 2, Ch. 4, L. 1973; amd. Sec. 29, Ch. 184, L. 1977; R.C.M. 1947, 95-1915(4).
2023 Montana Code Annotated › Title 46. Criminal Procedure › Chapter 16. Trial › Part 6. Verdict -- Disposition of Defendant › 46-16-605. Verdict of not guilty -- when defendant discharged

46-16-605. Verdict of not guilty -- when defendant discharged.
If a verdict of not guilty is returned and the defendant is not detained for any other legal cause, the defendant must be discharged as soon as the judgment is given.
History: En. 95-1916 by Sec. 1, Ch. 196, L. 1967; R.C.M. 1947, 95-1916; amd. Sec. 211, Ch. 800, L. 1991.
2023 Montana Code Annotated › Title 46. Criminal Procedure › Chapter 16. Trial › Part 6. Verdict -- Disposition of Defendant › 46-16-606. Reasonable doubt as to which offense convicts only of least offense

46-16-606. Reasonable doubt as to which offense convicts only of least offense.
When it appears beyond a reasonable doubt that the defendant has committed an offense but there is reasonable doubt as to whether the defendant is guilty of a given offense or one or more lesser included offenses, the defendant may only be convicted of the greatest included offense about which there is no reasonable doubt.
History: En. Sec. 186, p. 245, Bannack Stat.; re-en. Sec. 307, p. 237, Cod. Stat. 1871; re-en. Sec. 308, 3d Div. Comp. Stat. 1887; en. Sec. 2073, Pen. C. 1895; re-en. Sec. 9274, Rev. C. 1907; re-en. Sec. 11972, R.C.M. 1921; Cal. Pen. C. Sec. 1097; re-en. Sec. 11972, R.C.M. 1935; Sec. 94-7204, R.C.M. 1947; redes. 95-2902 by Sec. 29, Ch. 513, L. 1973; amd. Sec. 48, Ch. 184, L. 1977; R.C.M. 1947, 95-2902; Sec. 46-16-602, MCA 1989; redes. 46-16-606 by Code Commissioner, 1991; amd. Sec. 1752, Ch. 56, L. 2009.
2023 Montana Code Annotated › Title 46. Criminal Procedure › Chapter 16. Trial › Part 6. Verdict -- Disposition of Defendant › 46-16-607. Conviction of lesser included offense

46-16-607. Conviction of lesser included offense.
(1) The defendant may be found guilty of an offense necessarily included in the offense charged or of an attempt to commit either the offense charged or an offense necessarily included in the offense charged.
(2) A lesser included offense instruction must be given when there is a proper request by one of the parties and the jury, based on the evidence, could be warranted in finding the defendant guilty of a lesser included offense.
(3) When a lesser included offense instruction is given, the court shall instruct the jury that it must reach a verdict on the crime charged before it may proceed to a lesser included offense. Upon request of the defendant at the settling of instructions, the court shall instruct the jury that it may consider the lesser included offense if it is unable after reasonable effort to reach a verdict on the greater offense.
History: En. Sec. 212, Ch. 800, L. 1991.
2023 Montana Code Annotated › Title 46. Criminal Procedure › Chapter 16. Trial › Part 7. Motion for a New Trial › 46-16-701. Effect of new trial

46-16-701. Effect of new trial.
The granting of a new trial places the parties in the same position as if there had been no trial.
History: En. 95-2101 by Sec. 1, Ch. 196, L. 1967; amd. Sec. 35, Ch. 184, L. 1977; R.C.M. 1947, 95-2101(1); amd. Sec. 213, Ch. 800, L. 1991.
2023 Montana Code Annotated › Title 46. Criminal Procedure › Chapter 16. Trial › Part 7. Motion for a New Trial › 46-16-702. Motion for a new trial

46-16-702. Motion for a new trial.
(1) Following a verdict or finding of guilty, the court may grant the defendant a new trial if required in the interest of justice. A new trial may be ordered by the court without a motion or may be granted after motion and hearing.
(2) The motion for a new trial must be in writing and must specify the grounds for a new trial. The motion must be filed by the defendant within 30 days following a verdict or finding of guilty and be served upon the prosecution.
(3) On hearing the motion for a new trial, if justified by law and the weight of the evidence, the court may:
(a) deny the motion;
(b) grant a new trial; or
(c) modify or change the verdict or finding by finding the defendant guilty of a lesser included offense or finding the defendant not guilty.
History: En. 95-2101 by Sec. 1, Ch. 196, L. 1967; amd. Sec. 35, Ch. 184, L. 1977; R.C.M. 1947, 95-2101(2); amd. Sec. 19, Ch. 116, L. 1979; amd. Sec. 214, Ch. 800, L. 1991; amd. Sec. 1, Ch. 301, L. 1999.
2023 Montana Code Annotated › Title 46. Criminal Procedure › Chapter 17. Lower Court Proceedings › Part 1. Preliminary Matters -- Justices' and City Courts › 46-17-101. Repealed

46-17-101. Repealed.
Sec. 49, Ch. 262, L. 1993.
History: En. 95-2001 by Sec. 1, Ch. 196, L. 1967; R.C.M. 1947, 95-2001; amd. Sec. 2, Ch. 62, L. 1981.
2023 Montana Code Annotated › Title 46. Criminal Procedure › Chapter 17. Lower Court Proceedings › Part 1. Preliminary Matters -- Justices' and City Courts › 46-17-102. Record of proceedings

46-17-102. Record of proceedings.
A docket must be kept by the justice of the peace or city judge, in which must be entered each action and the proceedings of the court therein.
History: En. 95-2002 by Sec. 1, Ch. 196, L. 1967; R.C.M. 1947, 95-2002.
2023 Montana Code Annotated › Title 46. Criminal Procedure › Chapter 17. Lower Court Proceedings › Part 1. Preliminary Matters -- Justices' and City Courts › 46-17-103. Repealed

46-17-103. Repealed.
Sec. 49, Ch. 262, L. 1993.
History: En. 95-2003 by Sec. 1, Ch. 196, L. 1967; amd. Sec. 19, Ch. 420, L. 1975; R.C.M. 1947, 95-2003.
2023 Montana Code Annotated › Title 46. Criminal Procedure › Chapter 17. Lower Court Proceedings › Part 2. The Trial -- Justices' and City Courts › 46-17-201. Juries in misdemeanor cases

46-17-201. Juries in misdemeanor cases.
(1) The parties in a misdemeanor case are entitled to a jury of six qualified persons but may agree to a number less than six at any time before the verdict.
(2) Upon consent of the parties, a trial by jury may be waived.
History: En. 95-2004 by Sec. 1, Ch. 196, L. 1967; amd. Sec. 30, Ch. 184, L. 1977; R.C.M. 1947, 95-2004(1); amd. Sec. 215, Ch. 800, L. 1991; amd. Sec. 2, Ch. 7, L. 1995; amd. Sec. 2, Ch. 129, L. 1997; amd. Sec. 2, Ch. 346, L. 1999.
2023 Montana Code Annotated › Title 46. Criminal Procedure › Chapter 17. Lower Court Proceedings › Part 2. The Trial -- Justices' and City Courts › 46-17-202. Formation of trial jury for justices', municipal, and city courts

46-17-202. Formation of trial jury for justices', municipal, and city courts.
(1) At the time of preparing the district court jury list under 3-15-404(6), the clerk of the district court shall prepare a jury list for each justice's, municipal, and city court within the county. Each list must consist of residents of the appropriate county, city, or town. The lists must be selected in any reasonable manner that ensures fairness, and each list must include a number of names sufficient to meet the annual jury requirements of the respective court. Additional lists may be prepared if required. The lists must be filed in the office of the clerk of the district court as provided in 3-15-403. The appropriate list must be posted in a public place in each county, city, or town, and the list must comprise the trial jury list for the ensuing year for the county, city, or town.
(2) Trial jurors must be summoned from the jury list by notifying each one orally that the person is summoned and of the time and place at which attendance is required.
History: En. 95-2005 by Sec. 1, Ch. 196, L. 1967; amd. Sup. Ct. Ord. 11450-2-3-4, Oct. 10, 1968, eff. Dec. 1, 1968; amd. Sec. 20, Ch. 420, L. 1975; amd. Sec. 31, Ch. 184, L. 1977; R.C.M. 1947, 95-2005; amd. Sec. 18, Ch. 379, L. 1983; amd. Sec. 216, Ch. 800, L. 1991; amd. Sec. 7, Ch. 441, L. 2003; amd. Sec. 4, Ch. 133, L. 2007.
2023 Montana Code Annotated › Title 46. Criminal Procedure › Chapter 17. Lower Court Proceedings › Part 2. The Trial -- Justices' and City Courts › 46-17-203. Plea of guilty -- use of two-way electronic audio-video communication

46-17-203. Plea of guilty -- use of two-way electronic audio-video communication.
(1) Before or during trial, a plea of guilty must be accepted, and a plea of nolo contendere may be accepted with the consent of the court and the prosecutor, when:
(a) subject to the provisions of subsection (3), the defendant enters a plea of guilty or nolo contendere in open court; and
(b) the court has informed the defendant of the consequences of the plea and of the maximum penalty provided by law that may be imposed upon acceptance of the plea.
(2) (a) Subject to subsection (2)(b), a plea of guilty or nolo contendere in a justice's court, city court, or other court of limited jurisdiction waives the right of trial de novo in district court. A defendant must be informed of the waiver before the plea is accepted, and the justice or judge shall question the defendant to ensure that the plea and waiver are entered voluntarily.
(b) A defendant who claims that a plea of guilty or nolo contendere was not entered voluntarily may move to withdraw the plea. If the motion to withdraw is denied, the defendant may, within 90 days of the denial of the motion, appeal the denial of a motion to withdraw the plea to district court. The district court may order the office of state public defender, provided for in 2-15-1029, to assign counsel pursuant to the Montana Public Defender Act, Title 47, chapter 1, hold a hearing, and enter appropriate findings of fact, conclusions of law, and a decision affirming or reversing the denial of the defendant's motion to withdraw the plea by the court of limited jurisdiction. The district court may remand the case. The defendant may not appeal the decision of the district court.
(3) For purposes of this section, in cases in which the defendant is charged with a misdemeanor offense, an entry of a plea of guilty or nolo contendere through the use of two-way electronic audio-video communication, allowing all of the participants to be observed and heard in the courtroom by all present, is considered to be an entry of a plea of guilty or nolo contendere in open court. Audio-video communication may be used if neither party objects and the court agrees to its use. The audio-video communication must operate as provided in 46-12-201.
History: En. 95-2004 by Sec. 1, Ch. 196, L. 1967; amd. Sec. 30, Ch. 184, L. 1977; R.C.M. 1947, 95-2004(2); amd. Sec. 3, Ch. 277, L. 1989; amd. Sec. 3, Ch. 163, L. 1997; amd. Sec. 17, Ch. 395, L. 1999; amd. Sec. 1, Ch. 354, L. 2003; amd. Sec. 50, Ch. 449, L. 2005; amd. Sec. 2, Ch. 144, L. 2013; amd. Sec. 17, Ch. 358, L. 2017; amd. Sec. 2, Ch. 430, L. 2019.
2023 Montana Code Annotated › Title 46. Criminal Procedure › Chapter 17. Lower Court Proceedings › Part 2. The Trial -- Justices' and City Courts › 46-17-204. Repealed

46-17-204. Repealed.
Sec. 49, Ch. 262, L. 1993.
History: En. 95-2004 by Sec. 1, Ch. 196, L. 1967; amd. Sec. 30, Ch. 184, L. 1977; R.C.M. 1947, 95-2004(4).
2023 Montana Code Annotated › Title 46. Criminal Procedure › Chapter 17. Lower Court Proceedings › Part 2. The Trial -- Justices' and City Courts › 46-17-205. Repealed

46-17-205. Repealed.
Sec. 49, Ch. 262, L. 1993.
History: En. 95-2004 by Sec. 1, Ch. 196, L. 1967; amd. Sec. 30, Ch. 184, L. 1977; R.C.M. 1947, 95-2004(3).