Criminal Defense

RULE 8. SPEEDY TRIAL

Rule 8.1. Priorities in scheduling criminal cases

a. Priority of Criminal Trials. The trial of criminal cases shall have priority over the trial of civil cases. Any scheduling conflicts will be resolved in accordance with Rule 5(j), Uniform Rules of Practice .

b. Preferences. The trial of defendants in custody and defendants whose pretrial liberty may present unusual risks shall be given preference over other criminal cases.

c. Duty of Prosecutor. The prosecutor shall advise the court of facts relevant to determining the order of cases on the calendar.

d. Duty of Defense Counsel. The defendant’s counsel shall advise the court of the impending expiration of time limits in the defendant’s case. Failure to do so may result in sanctions and should be considered by the court in determining whether to dismiss an action with prejudice pursuant to Rule 8.6 .

e. Extraordinary Cases. Within 25 days after the arraignment in Superior Court either party may apply in writing to the court for a hearing to establish extraordinary circumstances requiring the suspension of Rule 8 in a particular case. Within 5 days of the receipt of the application the court shall hold the hearing and make findings of fact. The findings shall be immediately transmitted to the Chief Justice who may approve or decline to approve them. Upon approval of the findings by the Chief Justice, they shall be returned to the trial court where upon motion of either party the trial court may suspend the provisions of Rule 8 and reset the trial date for a time certain.

Rule 8.2. Time limits

a. General. Subject to the provisions of Rule 8.4 , every person against whom an indictment, information or complaint is filed shall be tried by the court having jurisdiction of the offense within the following time periods:

(1) Defendants in Custody. 150 days from arraignment if the person is held” in custody”, except as provided in subsection (a), paragraph (3) of this section.

(2) Defendants Released From Custody. 180 days from arraignment if the person “is released” under Rule 7, except as provided in subsection (a), paragraph (3) of this section.

(3). Complex Cases. One year from arraignment for cases in which the indictment, information or complaint is filed between December 1, 2002 and December 1, 2005, and for subsequent cases 270 days from arraignment if the person is charged with any of the following:
(i) 1st Degree Murder, except as provided in paragraph (a)(4) of this rule,
(ii) Offenses that will require the court to consider evidence obtained as the result of an order permitting the interception of wire, electronic or oral communication,
(iii) Any complex cases as determined by a written factual finding by the court.

(4). Capital Cases. Eighteen months from arraignment, if the state files a notice of intent to seek the death penalty:

b. Waiver of Appearance at Arraignment. If a person has waived an appearance at arraignment pursuant to Rule 14.2 , the date of the arraignment held without the defendant’s presence shall be considered the arraignment date for purposes of subsection (a), paragraphs (1), (2), (3), and (4) of this rule.

c. New Trial. A trial ordered after a mistrial or upon a motion for a new trial shall commence within 60 days of the entry of the order of the court. A trial ordered upon the reversal of a judgment by an appellate court shall commence within 90 days of the service of the mandate of the Appellate Court.

d. Extension of Time Limits. These time limits may be extended pursuant to Rule 8.5 .

e. Trial Dates. In all superior court cases except those in which Rule 8 has been suspended pursuant to Rule 8.1 (e), the court shall, either at the time of arraignment in superior court or at a pretrial conference, set a trial date for a time certain.

Rule 8.3. Right to speedy trial of persons in prison within or without the state

a. Persons Without the State. Within 90 days after receipt of a written request from any person charged with a crime and incarcerated without the state, or within a reasonable time after otherwise learning of such person’s incarceration without the state, the prosecutor shall take action as required by law to obtain such person’s presence for trial. Within 90 days after the defendant has been delivered into the temporary custody of the appropriate authority of this state, he or she shall be brought to trial.

b. Persons Within the State.
(1) Any person who is imprisoned in this state may request final disposition of any untried indictment, information or complaint pending against the person in this state. The request shall be in writing addressed to the court in which the charge is filed and to the prosecutor charged with the duty of prosecuting it, and shall set forth the place of imprisonment.
(2) Within 30 days after a detainer has been filed against a prisoner incarcerated within this state, the prosecutor charged with the duty of prosecuting the charge from which the detainer results, shall inform the prisoner of the detainer and of the prisoner’s right to request its final disposition under Rule 8.3(b)(1).
(3) Within 90 days after sending such a request to the court and prosecutor, the prisoner shall be brought to trial upon the charge.
(4) The escape from custody of a prisoner subsequent to the prisoner’s request for final disposition of an untried indictment, information or complaint shall void the request.

Rule 8.4. Excluded periods

The following periods shall be excluded from the computation of the time limits set forth in Rules 8.2 and 8.3 :

a. Delays occasioned by or on behalf of the defendant, including, but not limited to, delays caused by an examination and hearing to determine competency or mental retardation, the defendant’s absence or incompetence, or his or her inability to be arrested or taken into custody in Arizona.

b. Delays resulting from a remand for new probable cause determination under Rules 5.5 or 12.9 .

c. Delays resulting from extension of the time for disclosure under Rule 15.6 .

d. Delays necessitated by congestion of the trial calendar, but only when the congestion is attributable to extraordinary circumstances, in which case the presiding judge shall promptly apply to the Chief Justice of the Arizona Supreme Court for suspension of any of the Rules of Criminal Procedure.

e. Delays resulting from continuances in accordance with Rule 8.5 , but only for the time periods prescribed therein.

f. Delays resulting from joinder for trial with another defendant as to whom the time limits have not run when there is good cause for denying severance. In all other cases, severance should be granted to preserve the applicable time limits.

g. Delays resulting from the setting of a transfer hearing pursuant to Rule 40 of these rules.

Rule 8.5. Continuances

a. Form of Motion. A continuance of a trial may be granted on the motion of a party. Any motion must be in writing and state with specificity the reason(s) justifying the continuance.

b. Grounds for Motion. A continuance of any trial date shall be granted only upon a showing that extraordinary circumstances exist and that delay is indispensable to the interests of justice. A continuance may be granted only for so long as is necessary to serve the interests of justice. In ruling on a motion for continuance, the court shall consider the rights of the defendant and any victim to a speedy disposition of the case. If a continuance is granted, the court shall state the specific reasons for the continuance on the record.

c. Other Continuances. No further continuances shall be granted except as provided in Rules 8.1 (e), 8.2 (e) and 8.4 (d).

Rule 8.6. Denial of speedy trial

Violations. If the court determines after considering the exclusions of Rule 8.4 , that a time limit established by Rules 8.2(a), 8.2(b), 8.2(c), 8.2 (d), 8.3(a), 8.3(b)(2), or 8.3 (b)(3) has been violated, it shall on motion of the defendant, or on its own initiative, dismiss the prosecution with or without prejudice.

Rule 8.7. Acceleration of trial

Where special circumstances relating to the victim so warrant, the court may accelerate the trial to the earliest possible date that is consistent with the defendant’s right to a fair trial. If necessary, the presiding judge shall assign another judge of the court to preside at trial in order to insure that the trial commences as scheduled.

RULE 7. RELEASE

Rule 7.1. Definitions and applicability of rule

a. Own Recognizance. “Own recognizance” means release without any condition of an undertaking relating to, or deposit of, security.

b. Appearance Bond. An “appearance bond” is an undertaking, on a form approved by the Supreme Court, to pay to the clerk of the court a specified sum of money upon failure of a person released to comply with its conditions.

c. Secured Appearance Bond. A “secured appearance bond” is an appearance bond secured by deposit with the clerk of security equal to the full amount thereof.

d. Security. “Security” is cash, a surety’s undertaking, or any property of value, deposited with the clerk to secure an appearance bond. The value of such property shall be determined by the clerk, or at the clerk’s or a party’s request, by the court.

e. Surety. A “surety” is one, other than the person released, who executes an appearance bond and binds himself or herself to pay its amount if the person released fails to comply with its conditions. A surety shall file with an appearance bond an affidavit that he or she is not an attorney or person authorized to take bail, and that he or she owns property in this state (or is resident of this state owning property) worth the amount of the appearance bond, exclusive of property exempt from execution and above and over all liabilities, including the amount of all outstanding appearance bonds entered into by him or her, specifying such property, the exemptions and liabilities thereon, and the number and amount of such appearance bonds.

f. Professional Bondsman. Any person who is surety simultaneously on more than four appearance bonds is a “professional bondsman.” No person may be a professional bondsman unless the person annually certifies in writing under oath to the clerk of the Superior Court that he or she
(1) Is a resident of this state;
(2) Has sufficient financial net worth to satisfy reasonable obligations as a surety;
(3) Agrees to assume an affirmative duty to the court to remain in regular contact with any defendant released pursuant to an appearance bond on which the person is a surety;
(4) Has not been convicted of a felony, except as otherwise provided by A.R.S. § 20-340.03 ;
(5) Has no judgments arising out of surety undertakings outstanding against him or her;
(6) Has not, within a period of two years, violated any provisions of these rules or any court order.

Capacity to act as a professional bondsman may be revoked or withheld by the clerk, or by the court, for violation of any provision of this rule.

g. Applicability. This rule shall not apply to minor traffic offenses.

Rule 7.2. Right to release

a. Before Conviction; Persons Charged With an Offense Bailable as a Matter of Right. Any person charged with an offense bailable as a matter of right shall be released pending or during trial on the person’s own recognizance, unless the court determines, in its discretion, that such a release will not reasonably assure the person’s appearance as required. If such a determination is made, the court may impose the least onerous condition or conditions contained in Rule 7.3 (b) which will reasonably assure the person’s appearance.

b. Before Conviction; Persons Charged With an Offense Not Bailable as a Matter of Right. A person shall not be released on bail if the court finds the person is not bailable pursuant to A.R.S. Const. Art. 2, § 22 and A.R.S. § 13- 3961 . If the allegation involves A.R.S. § 13-3961 (A)(5), the person shall not be considered bailable if the court finds (1) that the proof is evident or the presumption great that the person committed a serious offense, and (2) probable cause that the person entered or remained in the United States illegally.

c. After Conviction

(1) Superior Court. After a person has been convicted of any offense for which the person will in all reasonable probability suffer a sentence of imprisonment, the person shall not be released on bail or on the person’s own recognizance unless it is established that there are reasonable grounds to believe that the conviction may be set aside on a motion for new trial, reversed on appeal, or vacated in any post-conviction proceeding. The release of a person pending appeal shall be revoked if the person fails to prosecute the appeal diligently.

(2) Limited Jurisdiction Courts.

(A) Conditions of Release Upon Appeal. After a defendant has been convicted of any offense for which a sentence of incarceration has been imposed, upon filing of a timely notice of appeal, the defendant shall remain, pending appeal, under the same release conditions imposed at or subsequent to the time of the defendant’s initial appearance or arraignment, except as provided in this subsection (c) (2). The release of the defendant pending appeal shall be revoked if the defendant fails to prosecute the appeal diligently. A defendant held in custody pending appeal shall be released in the event the defendant’s sentence is completed before the appeal has been decided.

(B) Motion to Amend Conditions of Release. Upon the filing of a timely notice of appeal, the state, or the court on its own motion, may move to amend the conditions of release when it appears there is a substantial risk that:

(i) the defendant presents a danger to any person or the community; or

(ii) the defendant is unlikely to return to court if subsequently ordered to appear on the particular matter.

(C) Hearing. The court shall set a hearing on such an application within three days of the filing of the motion. Such hearing may be continued for good cause shown. The defendant may be detained pending the hearing. At the hearing, which shall be on the record, the defendant is entitled to representation by counsel. Any testimony of the defendant shall not be admissible in other proceedings except as it may relate to compliance with prior conditions of release, perjury, or impeachment.

(D) Findings. Based on findings stated on the record, the court may amend the conditions of release in accordance with Rule 7.3 . In determining the method of release or the amount of bail, the judicial officer shall, on the basis of available information, consider the nature and circumstances of the offense, family or local ties, employment, financial resources, character and mental condition, the length of residence in the community, the record of arrests, convictions, and appearances at court proceedings.

(E) Superior Court Review. If the trial court enters an order setting a bond or requiring incarceration while the appeal is taken, the defendant may petition the superior court, at any time after such order is entered, to stay the execution of sentence and to allow the defendant to be released without bond or to require a lower bond.

d. Burden of Proof. preponderance of the evidence. The prosecutor shall bear the burden of establishing factual issues under Rule 7.2 (a), (b) and (c) (2). The defendant shall bear the burden of establishing factual issues under Rule 7.2 (c) (1).

Rule 7.3. Conditions of release

a. Mandatory Conditions. Every order of release under this rule shall contain the following conditions:
(1) That the person appear to answer and submit to the orders and process of the court having jurisdiction of the case;
(2) That the person refrain from committing any criminal offense;
(3) That the person not depart the state without leave of court;
(4) If released after judgment and sentence, that the person diligently prosecute his or her appeal.
(5) If a person charged with an offense listed in A.R.S. section 13- 610 (O)(3) has been summoned to appear in court, the court shall order that the person report within five days after release to the arresting law enforcement agency or its designee and submit a sample of buccal cells or other bodily substances for DNA testing as directed and provide proof of compliance at the next scheduled court proceeding. The judicial officer shall advise the person that willful failure to comply with this order shall result in revocation of the person’s release, including arrest and confinement for violation of a condition of release, as provided in Rule 7.5 and A.R.S. 13-3967.

b. Additional Conditions. An order of release may include the first one or more of the following conditions reasonably necessary to secure a person’s appearance:
(1) Execution of an unsecured appearance bond in an amount specified by the court;
(2) Placing the person in the custody of a designated person or organization agreeing to supervise him or her;
(3) Restrictions on the person’s travel, associations, or place of abode during the period of release;
(4) Any other condition not included in (5) or (6) which the court deems reasonably necessary;
(5) Execution of a secured appearance bond; or
(6) Return to custody after specified hours.

Rule 7.4. Procedure

a. Initial Decision. At the initial appearance before a magistrate, a determination of the conditions of release shall be made. The court shall issue an order containing the conditions of release and shall inform the accused of the conditions, the possible consequences of their violation, and that a warrant for his or her arrest may be issued immediately upon report of a violation.

b. Subsequent Review of Conditions. Any party may move for reexamination of the conditions of release whenever the case is transferred to a different court or the motion alleges the existence of material facts not previously presented to the court. The court may, on motion of any party, or on its own initiative, modify the conditions of release after giving the parties an opportunity to respond to the proposed modification. The motion shall comply with the requirements of this rule, Rule 35 and Rule 39. If the motion involves whether the person shall be held without bail, the motion need not allege new material facts and a hearing on the motion shall be held on the record as soon as practicable but not later than seven days after filing of the motion.

c. Evidence. Release determinations under this rule may be based on evidence not admissible under the rules of evidence.

d. Review of Bond. The court before which a misdemeanor is pending shall, no more than 10 days after arraignment, review the case file concerning the conditions of release of any defendant held in custody on bond for the purpose of determining the propriety of amending the conditions of release.

Rule 7.5. Review of conditions; revocation of release

a. Issuance of Warrant or Summons. Upon verified petition by the prosecutor stating facts or circumstances constituting a breach of the conditions of release, the court having jurisdiction over the defendant released may issue a warrant or summons under Rule 3.2, to secure the defendant’s presence in court. A copy of the petition shall be served with the warrant or summons.

b. Victim’s Right to Petition for Revocation of Bond or Modification of Conditions of Release. After consultation with the prosecutor, and if the prosecutor decides not to file a petition pursuant to section (a) of this Rule, the victim may petition the court to revoke the bond or release on personal recognizance of the defendant, or otherwise modify the conditions of the defendant’s release, based on the victim’s notarized statement asserting that harassment, threats, physical violence or intimidation against the victim or the victim’s immediate family by the defendant or on behalf of the defendant has occurred.

c. Hearing; Review of Conditions; Revocation.

(1) Modification of Conditions of Release. If, after a hearing on the matters set forth in the petition, the court finds that the person released has wilfully violated the conditions of release, the court may impose different or additional conditions upon his or her release. However, if the defendant has violated the conditions of an appearance bond executed as a condition of release, the court shall determine conditions reasonably necessary to secure that person’s appearance in the future. If the violation is not excused, the court shall not impose less restrictive conditions of release. If the court determines that an increase in the amount of a secured appearance bond is necessary, that security shall be in addition to any previously existing security.

(2) Revocation of Release. The court may revoke release of a person charged with a felony if, after hearing, the court finds (A) that there is probable cause to believe that the person committed a felony during the period of release and that the proof is evident or the presumption great as to the present charge; or (B) that the person poses a substantial danger to any person or the community, that no other conditions of release will reasonably assure the safety of the other person or the community, and that the proof is evident or the presumption great as to the present charge.

d. Revocation of Release; DNA Testing. The prosecutor may file a motion stating facts or circumstances constituting probable cause to believe that a defendant who has been ordered as a condition of release to provide a sample of buccal cells or other bodily substances for DNA testing pursuant to A.R.S. section 13-3967 (F)(4) and provide proof of compliance has not complied with that order At the defendant’s next court appearance, the court shall proceed in accordance with the requirements of this rule and A.R.S. section 13- 3967 (F)(4).

e. Revocation of release; Ten-print fingerprinting. If a defendant fails to timely present a completed mandatory 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 shall be released from custody after being ten-print fingerprinted.

Rule 7.6. Transfer and Disposition of Bond
a. Transfer Upon Supervening Indictment. An appearance bond or release order issued to assure the defendant’s presence for proceedings following the filing of a felony complaint in justice of the peace court shall automatically be transferred to the same charge prosecuted by indictment, even though the felony complaint is dismissed.

b. Filing and Custody of Appearance Bonds and Security. Appearance bonds and security shall be filed with the clerk of the court in which a case is pending or the court where the initial appearance is held. Whenever the case is transferred to another court, any appearance bond and security shall also be transferred.

c. Forfeiture Procedure.

(1) Notice and Hearing. If at any time it appears to the court that the released person has violated a condition of an appearance bond, it shall issue a bench warrant for the person’s arrest. Within ten days after the issuance of the warrant, the court shall notify the surety, in writing or by electronic means, that the warrant was issued The court shall also set a hearing within a reasonable time not to exceed 120 days requiring the parties and any surety to show cause why the bond should not be forfeited. The court shall notify the parties and any surety of the hearing in writing or by electronic means.

(2) Forfeiture. If at the hearing, the violation is not explained or excused, the court may enter an appropriate order of judgment forfeiting all or part of the amount of the bond, which shall be enforceable by the state as any civil judgment.

d. Exoneration.

(1) At any time before violation that the court finds that there is no further need for an appearance bond, it shall exonerate the appearance bond and order the return of any security deposited.

(2) If the surety, in compliance with the requirements of A.R.S. § 13-3974 , surrenders the defendant to the sheriff of the county in which the prosecution is pending, or delivers an affidavit to the sheriff stating that the defendant is incarcerated in this or another jurisdiction, and the sheriff reports the surrender or status to the court, the court may exonerate the bond.

(3) In all other instances, the decision whether or not to exonerate a bond shall be within the sound discretion of the court.

e. Post-Forfeiture Notice. After entering an order of forfeiture, the court shall forward: (1) a copy of the forfeiture minute entry to the defendant, the defendant’s attorney, and the surety; and (2) a copy of a signed forfeiture minute entry to the county attorney for collection.

Rule 6.1.

a. Defendant’s  Right to be Represented by Counsel.
1. in any criminal proceeding,

a. except petty offenses such as traffic violations where there is no prospect of imprisonment or confinement after a judgment of guilty.

2. the right to be represented shall include 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 times thereafter, and sufficiently in advance of a proceeding to allow adequate preparation.

b. Right to Appointed Counsel. An indigent defendant shall be entitled to have an attorney appointed to represent him:

a. in any criminal proceeding which may result in punishment by loss of liberty, and

b. in any other criminal proceeding in which the court concludes that the interests of justice so require.

c. Waiver of Rights to Counsel. Defendant can waive if:
1. in writing,

2. after the court has ascertained that he or she knowingly, intelligently and voluntarily desires to forego the right to representation.

Consequence:  the court may appoint an attorney to advise him during any stage of the proceedings. Such advisory counsel shall be given notice of all matters of which the defendant is notified.

d. Unreasonable Delay in Retaining Counsel. If a non-indigent defendant, or an indigent defendant who has refused appointed counsel in order to retain private counsel, appears without counsel at any proceeding after having been given a reasonable opportunity to retain counsel, the court may proceed with the matter, with or without securing a written waiver or appointing counsel under section (c) to advise the defendant during the proceeding.

e. Withdrawal of Waiver. A defendant may withdraw a waiver of his rights to counsel at any time. However, defendant will not be entitled to repeat any proceeding previously held or waived solely on the grounds of the subsequent appointment or retention of counsel.

Rule 6.2. Appointment of counsel

The presiding judge of each county shall establish a procedure for appointment of counsel by the Superior Court, or by limited jurisdiction courts, for each indigent person entitled thereto.

In all capital trial proceedings, the presiding judge must appoint two attorneys pursuant to the standards set forth in Rule 6.8 (b). At the time of his or her appointment, lead counsel may select co-counsel so long as co-counsel is willing to accept the appointment and meets all of the requirements of Rule 6.8 (b)(2). If lead counsel does not name co-counsel upon accepting an appointment, the court shall select co-counsel.

Rule 6.3. Duties of Counsel; Withdrawal

a. Notice of Appearance. At his or her first appearance in any court on behalf of a defendant, an attorney must file a notice of appearance on a form provided by the clerk of the court. (applies to private and appointed counsel)

b. Duty of Continuing Representation. Representation must continue in all further proceedings in the trial court, including filing of notice of appeal, unless the court permits attorney to withdraw.

c. Duty Upon Withdrawal. No attorney shall be permitted to withdraw after a case has been set for trial except upon motion accompanied by the name and address of another attorney, together with a signed statement by the substituting attorney that he or she is advised of the trial date and will be prepared for trial. Appointed counsel may withdraw after the arraignment on the grounds of his or her client’s ineligibility only upon a showing that withdrawal will not disrupt the orderly processing of the case.

d. Duty of Defense Counsel to Preserve the File in a Capital Case. Defendant’s counsel shall maintain the records of a capital case in a manner that will inform successor counsel of all significant developments relevant to the litigation, and provide the client’s complete records and files, as well as all information regarding every aspect of the representation, to successor counsel.

e. Duty of Successor Counsel to Collect and Preserve the File in a Capital Case. Immediately upon undertaking representation, defendant’s counsel shall collect the complete file from prior counsel, and maintain the records and files in a manner that complies with subsection (d) above.

Rule 6.4. Determination of indigency

a. Standard. “indigent” = not financially able to employ counsel.

b. Questionnaire. A defendant desiring to proceed as an indigent must complete under oath a questionnaire concerning that defendant’s financial resources, on a form approved by the Supreme Court. The defendant shall be examined under oath regarding defendant’s financial resources by the judge, magistrate, or court commissioner responsible for determining indigency. The defendant shall, prior to said questioning, be advised of the perjury penalties as set forth in A.R.S. § 13 2701 et seq.

c. Reconsideration. After a determination of indigency has been made, if there has been a material change in circumstances, either the defendant, the appointed attorney, or the prosecutor may move for reconsideration of that determination.

Rule 6.5. Manner of appointment

a. Order of Appointment. Whenever counsel is appointed, the court shall enter an order to that effect, a copy of which shall be given or sent to the defendant, the attorney appointed, and the prosecutor.

b. Appointment of Public Defender. In counties which have a public defender, the public defender shall represent all persons entitled to appointed counsel whenever he or she is authorized by law and able in fact to do so.

c. Other Appointments. If the public defender is not appointed, a private attorney shall be appointed to the case. All criminal appointments shall be made in a manner fair and equitable to the members of the bar, taking into account the skill likely to be required in handling a particular case.

d. Requests for Representation Before Grand Jury. A request for appointment of counsel under Rule 12.6 shall be made and processed as if proceedings had already commenced in Superior Court.

Rule 6.6. Appointment of counsel during appeal

The trial or Appellate Court shall appoint new counsel for a defendant legally entitled to such representation on appeal, when prior counsel is permitted to withdraw.

Rule 6.7. Compensation of appointed counsel

a. Times for Filing Claims. A private attorney appointed to represent an indigent defendant in a trial or appellate court shall file claims for compensation for services rendered at the completion of all trial, sentencing, or post-conviction proceedings and at the completion of all appellate proceedings as provided by local rule in the county in which the appointment was made or from which the appeal was taken.

b. Amount of Compensation. shall be as provided by local rule and A.R.S. § 13-4013. An attorney shall receive a sum representing reasonable compensation for the services performed, considering the hours worked, the experience of counsel, the quality of the work performed, and any amount actually paid by the defendant under section (d). However, the aggregate amount paid by the defendant and the county shall not exceed the full amount paid by the county alone to the appointed attorneys in comparable cases.

c. Entitlement for Limited Jurisdiction Court Representation. An attorney shall be entitled to compensation for services rendered whether or not a criminal case reaches superior court.

d. Contribution by the Defendant. If in determining that a person is indigent under Rule 6.4 (a), the court finds that such person has financial resources which enable him or her to offset in part the costs of the legal services to be provided, the court shall order him or her to pay to the appointed attorney or the county, through the clerk of the court, such amount as it finds he or she is able to pay without incurring substantial hardship to himself or herself or to his or her family. Failure to obey an order under this section shall not be grounds for contempt or grounds for withdrawal by the appointed attorney, but an order under this section may be enforced by the payee in the manner of a civil judgment. Except as authorized herein, no person, organization or governmental agency may request or accept any payment or promise of payment for assisting in the representation of a defendant by court appointment.

Rule 6.8. Standards for appointment and performance of counsel in capital cases.

a. General. To be eligible for appointment in a capital case, an attorney

(1) Shall have been a member in good standing of the State Bar of Arizona for at least five years immediately preceding the appointment;

(2) Shall have practiced in the area of state criminal litigation for three years immediately preceding the appointment; and

(3) Shall have demonstrated the necessary proficiency and commitment which exemplify the quality of representation appropriate to capital cases.

b. Trial Counsel.

(1) Lead counsel. To be eligible for appointment as lead counsel, an attorney must meet the qualifications set forth in section (a) of this rule and the following:
(i) Shall have practiced in the area of state criminal litigation for five years immediately preceding the appointment;
(ii) Shall have been lead counsel in at least nine felony jury trials that were tried to completion and have been lead counsel or co-counsel in at least one capital murder jury trial;
(iii) Shall be familiar with and guided by the performance standards in the 2003 American Bar Association Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases; and
(iv) Shall have attended and successfully completed, within one year prior to the initial appointment, at least six hours of relevant training or educational programs in the area of capital defense, and within one year prior to any subsequent appointment, at least twelve hours of relevant training or educational programs in the area of criminal defense.

(2) Co-counsel. To be eligible for appointment as co-counsel, an attorney must be a member in good standing of the State Bar of Arizona and shall have attended and successfully completed, within one year prior to the initial appointment, at least six hours of relevant training or educational programs in the area of capital defense, and within one year prior to any subsequent appointment, at least twelve hours of relevant training or educational programs in the area of criminal defense. Section (b)(1)(iii) applies to co-counsel.

c. Appellate and Post-conviction Counsel. To be eligible for appointment as appellate or post-conviction counsel, an attorney must meet the qualifications set forth in section (a) of this rule and the following:

(1) Within three years immediately preceding the appointment have been lead counsel in an appeal or post-conviction proceeding in a case in which a death sentence was imposed, as well as prior experience as lead counsel in the appeal of at least three felony convictions and at least one post-conviction proceeding that resulted in an evidentiary hearing. Alternatively, an attorney must have been lead counsel in the appeal of at least six felony convictions, at least two of which were appeals from first or second degree murder convictions, and lead counsel in at least two post-conviction proceedings that resulted in evidentiary hearings.

(2) Have attended and successfully completed, within one year prior to the initial appointment, at least six hours of relevant training or educational programs in the area of capital defense, and within one year prior to any subsequent appointment, at least twelve hours of relevant training or educational programs in the area of criminal defense.

(3) Shall be familiar with and guided by the performance standards in the 2003 American Bar Association Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases.

d. Exceptional Circumstances. In exceptional circumstances and with the consent of the Supreme Court, an attorney may be appointed who does not meet the qualifications set forth in sections (a)(1) and (2), (b) and (c) of this rule, providing that the attorney’s experience, stature and record enable the Court to conclude that the attorney’s ability significantly exceeds the standards set forth in this rule and that the attorney associates with himself or herself a lawyer who does meet the standards set forth in this rule. Section (b)(1)(iii) and (c)(3) shall apply to attorneys appointed under this section.

Rule 5.1.

a. Right to Preliminary Hearing.
1. Complaint must charge a felony

2. If in custody, hearing must take place before a magistrate no later than 10 days following Defendant’s initial appearance

a. If Def. is released, no later than 20 days after initial appearance, unless:

i. complaint has been dismissed;

ii. The hearing is waived

1. Requirement for waiver: in writing, signed by the defendant, def’s counsel and the prosecutor.

iii. defendant has been transferred from the juvenile court for criminal prosecution on specified charges;

iv. The magistrate orders the hearing postponed

1. If a preliminary hearing has not been commenced within 10 days, the defendant shall be released from custody automatically, unless he or she is charged with a non-bailable offense, whereupon the magistrate shall immediately notify the presiding judge of that county of the delay and the reasons therefor.

2. Upon motion of any party or magistrate’s initiative, the magistrate may postpone the hearing beyond the 20-day limit upon finding that

a. extraordinary circumstances exist; and

b. that delay is indispensable to the interests of justice,

3. Magistrate’s Obligation:  enter a written order detailing the reasons for his finding and giving the parties prompt notice thereof.

3. Demand for Hearing. A defendant in custody may demand that the preliminary hearing be held as soon as practicable.  If this is done, the magistrate must commence the hearing with only such delay as is necessary to secure the attendance of counsel, court reporter and necessary witnesses.

Rule 5.2. Summoning of witnesses and record of proceedings

The magistrate shall:
1. issue process to secure the attendance of witnesses; and

2. shall provide for a verbatim record of proceedings,

a. which may be by a certified court reporter, electronic, or other means in the discretion of the Presiding Judge of the Superior Court

i. unless a certified court reporter is requested by a party. Such a request must be honored unless the court is in a geographic location where certified court reporters are not reasonably available.

Rule 5.3. Nature of the preliminary hearing

a. Procedure.
The preliminary hearing shall:
1. be held before a magistrate;

2. magistrate shall admit only such evidence as is material to the question whether probable cause exists to hold the defendant for trial.

Rights at Hearing:
1. All parties shall have the right to cross-examine the witnesses testifying personally against them,

2. to review their previous written statements prior to such cross-examination.

3. The defendant may then make a specific offer of proof, including the names of witnesses who would testify or produce the evidence offered. The magistrate shall allow the defendant to present the offered evidence, unless the magistrate determines that it would be insufficient to rebut the finding of probable cause.

Conclusion of Hearing:
At the close of the prosecution’s case, including cross-examination of prosecution witnesses by the defendant, the magistrate shall determine and state for the record whether the prosecution’s case establishes probable cause.

Objections/Exclusion of Evidence Request: Rules or objections calling for the exclusion of evidence on the ground that it was obtained unlawfully shall be inapplicable in preliminary hearings.

Rule 5.4. Determination of probable cause
State’s Burden of Proof: establish probable cause to charge the offense(s) in the Complaint based on substantial evidence (defined below)

a. Holding a Defendant to Answer. If it appears from the evidence that there is probable cause to believe that an offense has been committed and that the defendant committed it, the magistrate shall enter a written order holding the defendant to answer before the Superior Court and, upon request, reconsider the conditions of release.

b. Amendment of Complaint. The complaint may be amended at any time to conform to the evidence, but the magistrate shall not hold the defendant to answer for a crime different from that charged in the original complaint.

c. Evidence. The finding of probable cause shall be based on substantial evidence, which may be hearsay in whole or in part in the following forms:
(1) Written reports of expert witnesses;
(2) Documentary evidence without foundation, provided there is a substantial basis for believing such foundation will be available at trial and the document is otherwise admissible;
(3) The testimony of a witness concerning the declarations of another or others where such evidence is cumulative or there is reasonable ground to believe that the declarants will be personally available for trial.

d. State’s Failure to establish Probable Cause/Discharge of the Defendant. If there is not probable cause to believe that an offense has been committed or that the defendant committed it, the magistrate shall dismiss the complaint and discharge the defendant.

Rule 5.5. Review of preliminary hearing.

a. Grounds.
1. shall be reviewable in the Superior Court

2. only by a motion for a new finding of probable cause

3. motion must allege that

a. defendant was denied a substantial procedural right, or

b. that no credible evidence of guilt was adduced. –and-

c. allege specifically the ways in which such evidence was lacking.

b. Timeliness. Review motion must be filed no later than 25 days after the completion of the preliminary hearing.

c. Evidence. Review of the evidence shall be limited to the certified transcript of the proceedings.

d. Relief. If the motion is granted, the case shall be returned to the magistrate with appropriate instructions. *If a new preliminary hearing is not commenced within 15 days after entry of the remand order, the case shall be dismissed.

Rule 5.6. Transmittal and transcription of record.

Within 3 days after waiver or conclusion of the preliminary hearing, the magistrate shall transmit the verbatim record of the preliminary hearing, if any, all papers and records in the case, and a prescribed transmittal form, to the clerk of the Superior Court.
*No verbatim record shall be transcribed absent a written request by a party avowing that there is a material need for the transcript, in which case a certified transcript shall be filed in Superior Court no later than 20 days after receipt of such request. Failure to timely file this certified transcript may be treated as a contempt of court.

5.7. Preservation of recording.

The clerk shall retain and preserve any electronic recording of a preliminary hearing in the same manner as required for the original notes of a certified court reporter pursuant to Rule 28.1(c), Rules of Criminal Procedure .

Rule 5.8. Entering a not guilty plea

a. Notice. In a county where an arraignment is not held as provided in Rule 14.1 (d), if a defendant is held to answer the magistrate shall:

(1) Enter a plea of not guilty for the defendant and prepare and provide the defendant and defendant’s counsel with a notice specifying that a plea of not guilty has been entered.

(2) Set the date for the trial or pretrial conference.

(3) Advise the parties in writing of the dates set for further proceedings and other important deadlines.

(4) Advise the defendant of the defendant’s right to be present at all future proceedings, that any proceeding may be held in the defendant’s absence and that the defendant may be charged with an offense and a warrant may be issued for defendant’s arrest.

(5) Advise the defendant of the right to jury trial, if applicable.

b. Form of Notice. Notice to the defendant as provided in Rule 5.8 (a) shall be in writing and signed by the defendant and defendant’s counsel.