Chapter 11 - Trial And Matters Incident Thereto
CHAPTER 11 - TRIAL AND MATTERS INCIDENT THERETO
ARTICLE 1 - SELECTION AND CHALLENGES OF JURIES
7-11-101. Impaneling in criminal cases.
Trial juries for criminal actions indistrict courts and in circuit courts are formed in the same manner as trialjuries in civil actions.
7-11-102. Trial of accused.
In all criminal cases the jury summoned andimpaneled according to the laws relating to the summoning or impaneling ofjuries in other cases, shall try the accused.
7-11-103. Peremptory challenges.
(a) The defendant may challenge peremptorily, in capital cases,twelve (12) jurors, in other felonies eight (8) jurors, and in misdemeanorsfour (4) jurors. The prosecution may challenge peremptorily, in capital cases,twelve (12) jurors, in other felonies eight (8) jurors, and in misdemeanorsfour (4) jurors. The number of peremptory challenges allowed to the prosecutionshall be multiplied by the number of defendants on trial in each case. Eachdefendant shall be allowed separate peremptory challenges.
(b) All challenges made under subsection (a) of this sectionshall be secret challenges.
7-11-104. Trial of challenges for cause.
Both the defense and the prosecution maychallenge jurors for cause prior to the jury being sworn. Challenges for causeshall be tried by the court.
7-11-105. General grounds for challenging jurors.
(a) The following is good cause for challenge to any personcalled as a juror in a criminal case:
(i) That he was a member of the grand jury which found theindictment;
(ii) That he has formed or expressed an opinion as to the guiltor innocence of the accused, or is biased or prejudiced for or against theaccused;
(iii) In a case in which the death penalty may be imposed, hestates that his views on capital punishment would prevent or substantiallyimpair performance of his duties as a juror in accordance with his oath oraffirmation and the instructions of the court;
(iv) That he is a relation within the fifth degree to the personalleged to be injured, or attempted to be injured, by the offense charged or tothe person on whose complaint the prosecution was instituted, or to thedefendant;
(v) That he has served on a petit jury which was sworn in thesame cause against the same defendant, and which jury either rendered a verdictwhich was set aside, or was discharged after hearing the evidence;
(vi) That he has served as a juror in a civil case broughtagainst the defendant for the same act;
(vii) That he has been subpoenaed as a witness in the case.
(b) The same challenges for cause shall be allowed in criminalprosecutions that are allowed to parties in civil cases.
7-11-106. Opinion formed from news reports or rumors.
(a) It is not cause for challenge that a person called to actas a juror in a criminal case has formed or expressed an opinion as to theguilt or innocence of the accused from news media reports or rumor if:
(i) The prospective juror states that he can lay aside hisimpression or opinion and render a verdict based on the evidence presented incourt; and
(ii) The court is satisfied, from the examination of theprospective juror or from other evidence, that he will render an impartialverdict according to the law and the evidence submitted to the jury at trial.
7-11-107. Oath or affirmation.
As soon as the jury is selected an oath oraffirmation shall be administered to the jurors providing, in substance, thatthey and each of them will well and truly try the matter in issue between thestate of Wyoming, plaintiff, and the named defendant, and render a true verdictaccording to the evidence.
ARTICLE 2 - TRIAL
7-11-201. Order of proceedings.
(a) After the jury has been impaneled and sworn, the trialshall proceed in the following order:
(i) The counsel for the state shall state the case of theprosecution, and may briefly state the evidence by which he expects to sustainit;
(ii) The defendant or his counsel may then state his defense andmay briefly state the evidence he expects to offer in support of it, or maywait until the evidence on the part of the state is closed;
(iii) The state shall first produce its evidence; the defendantwill then produce his evidence;
(iv) The state will then be confined to rebutting evidenceunless the court, for good reasons, in furtherance of justice, shall permit itto offer evidence in chief;
(v) When the evidence is concluded, either party may requestinstructions to the jury on the points of law, which shall be given or refusedby the court. The instructions shall be reduced to writing;
(vi) Before the argument of the case is begun, the court shallimmediately, and before proceeding with other business, charge the jury. Thecharge shall be reduced to writing by the court, if either party requests it.No charge or instruction provided for in this section, when written or given,shall be orally qualified, modified or explained to the jury by the court. Allwritten charges and instructions, shall be taken by the jury in theirretirement and returned with their verdict into court, and shall remain on filewith the papers of the case;
(vii) When the evidence is concluded, and the charge given by thecourt, unless the case is submitted without argument, the counsel for the stateshall commence, the defendant or his counsel follow, and the counsel for thestate shall conclude the argument to the jury.
7-11-202. Presence of defendant.
Except as otherwise provided by thissection, the defendant shall be present at the arraignment, at every stage ofthe trial, including the impaneling of the jury, and the return of the verdictand at the imposition of sentence. In prosecution for offenses not punishableby death, the defendant's voluntary absence after the trial has been commencedin his presence shall not prevent continuing the trial to and including thereturn of the verdict. A corporation may appear by counsel for all purposes. Inprosecutions of all misdemeanor cases, the court, with the written consent ofthe defendant, may permit arraignment, plea, and imposition of sentence in adefendant's absence. The defendant's presence is not required at a reduction ofsentence hearing.
7-11-203. Dismissal for unnecessary delay.
If there is unnecessary delay in presentingthe charge to a grand jury or in filing an information against a defendant whohas been held to answer to the district court, or if there is unnecessary delayin bringing a defendant to trial, the court may dismiss the indictment,information or complaint.
7-11-204. Applicability of civil procedure provisions and rules.
To the extent practicable and when nototherwise specifically provided, procedures relating to conduct of the jury,admonitions of the court and the manner of returning verdicts, shall begoverned by the Wyoming Code of Civil Procedure and the Wyoming Rules of CivilProcedure.
7-11-205. Discharge of jury before verdict without prejudice.
(a) If a jury is discharged for any of the following reasons before reaching a verdict, the discharge shall be without prejudice to theprosecution:
(i) Sickness of a juror or other accident or calamity requiringdischarge of the jury;
(ii) Failure of the jury to return a verdict; or
(iii) Dismissal of the proceeding due to a failure of thecomplaint, information or indictment to properly charge the offense.
7-11-206. Separation of jury.
(a) In the trial of any criminal case to a jury, the court may,except for capital cases allow the jurors to separate during the trial andafter the case is submitted to them.
(b) In the trial of any capital case to the jury, the courtmay, with the consent of the defendant and the district attorney, allow thejurors to separate during the trial and after the case is submitted to them.
(c) If the jurors are permitted to separate, they shall beadmonished by the court that they shall not discuss the case with anyone exceptwhile deliberating in the jury room, and are not to form or express an opinionexcept during their deliberations in the jury room.
ARTICLE 3 - MENTAL ILLNESS OR DEFICIENCY
7-11-301. Definitions.
(a) As used in this act:
(i) "Designated examiner" means a licensedpsychiatrist, or other physician with forensic training or a licensedpsychologist with forensic training;
(ii) "Facility" means the Wyoming state hospital orother facility designated by the court which can adequately provide for thesecurity, examination or treatment of the accused;
(iii) "Mental deficiency" means a defect attributableto intellectual disability, brain damage and cognitive disabilities;
(iv) "This act" means W.S. 7-11-301 through 7-11-307.
7-11-302. Trial or punishment of person lacking mental capacity.
(a) No person shall be tried, sentenced or punished for thecommission of an offense while, as a result of mental illness or deficiency, helacks the capacity, to:
(i) Comprehend his position;
(ii) Understand the nature and object of the proceedings againsthim;
(iii) Conduct his defense in a rational manner; and
(iv) Cooperate with his counsel to the end that any availabledefense may be interposed.
7-11-303. Examination of accused to determine fitness to proceed;reports; commitment; defenses and objections.
(a) If it appears at any stage of a criminal proceeding, bymotion or upon the court's own motion, that there is reasonable cause tobelieve that the accused has a mental illness or deficiency making him unfit toproceed, all further proceedings shall be suspended.
(b) The court shall order an examination of the accused by adesignated examiner. The order may include, but is not limited to, anexamination of the accused at the Wyoming state hospital on an inpatient oroutpatient basis, at a local mental health center on an inpatient or outpatientbasis, or at his place of detention. In selecting the examination site, thecourt may consider proximity to the court, availability of an examiner, and thenecessity for security precautions. If the order provides for commitment of theaccused to a designated facility, the commitment shall continue no longer thana thirty (30) day period for the study of the mental condition of the accused. The prosecuting attorney and counsel for the accused shall cooperate inproviding the relevant information and materials to the designated examiner,and the court may order as necessary that relevant information be provided tothe examiner.
(c) Written reports of the examination shall be filed with theclerk of court. The report shall include:
(i) Detailed findings;
(ii) An opinion as to whether the accused has a mental illnessor deficiency, and its probable duration;
(iii) An opinion as to whether the accused, as a result of mentalillness or deficiency, lacks capacity to comprehend his position, to understandthe nature and object of the proceedings against him, to conduct his defense ina rational manner, and to cooperate with his counsel to the end that anyavailable defense may be interposed;
(iv) Repealed By Laws 2009, Ch. 31, 2.
(v) A recommendation as to whether the accused should be heldin a designated facility for treatment pending determination by the court ofthe issue of mental fitness to proceed; and
(vi) A recommendation as to whether the accused, if found by thecourt to be mentally fit to proceed, should be detained in a designatedfacility pending further proceedings.
(d) The clerk of court shall deliver copies of the report tothe district attorney and to the accused or his counsel. The report is not apublic record or open to the public. After receiving a copy of the report, boththe accused and the state may, upon written request and for good cause shown,obtain an order granting them an examination of the accused by a designatedexaminer of their own choosing. For each examination ordered, a reportconforming to the requirements of subsection (c) of this section shall befurnished to the court and the opposing party.
(e) If the initial report contains the recommendation that theaccused should be held in a designated facility pending determination of theissue of mental fitness to proceed, the court may order that the accused becommitted to or held in a designated facility pending determination of mental fitnessto proceed. The court may order the involuntary administration ofantipsychotic medications to a person accused of a serious crime as defined inW.S. 7-6-102(a)(v) to render the accused competent to stand trial, provided thecourt finds:
(i) There are important governmental interests at stakeincluding, but not limited to:
(A) Bringing the accused to trial;
(B) Timely prosecution;
(C) Assuring the accused has a fair trial.
(ii) The involuntary administration of antipsychotic medicationswill significantly further the governmental interest and the administration ofthe medication is:
(A) Substantially likely to render the accused competent tostand trial; and
(B) Substantially unlikely to have side effects that willinterfere significantly with the ability of the accused to assist counsel inconducting a trial defense, thereby rendering the trial unfair.
(iii) That any alternative and less intrusive treatments areunlikely to achieve substantially the same results; and
(iv) The administration pursuant to a prescription by a licensedpsychiatrist of the antipsychotic medications is medically appropriate and isin the best medical interests of the accused in light of the accused's medicalcondition.
(f) If neither the state, nor the accused or his counselcontests the opinion referred to in paragraph (c)(iii) of this section relativeto fitness to proceed, the court may make a determination and finding of recordon this issue on the basis of the report filed or the court may hold a hearingon its own motion. If the opinion relative to fitness to proceed is contestedthe court shall hold a hearing on the issue. The report or reports may bereceived in evidence at any hearing on the issue. The party contesting anyopinion relative to fitness to proceed has the right to summon andcross-examine the persons who rendered the opinion and to offer evidence uponthe issue.
(g) If the court determines that the accused is mentally fit toproceed, the court may order that the accused be held in confinement, becommitted to a designated facility pending further proceedings, or be releasedon bail or other conditions. If the court determines that the accused lacksmental fitness to proceed, the proceedings against him shall be suspended andthe court shall commit him to a designated facility to determine whether thereis substantial probability that the accused will regain his fitness to proceed:
(i) The examiner shall provide a full report to the court, theprosecuting attorney and the accused or his counsel within ninety (90) days ofarrival of the accused at the designated treating facility. If the examiner isunable to complete the assessment within ninety (90) days the examiner shallprovide to the court and counsel a summary progress report which informs thecourt that additional time is necessary to complete the assessment, in whichcase the examiner may have up to an additional ninety (90) days to provide thefull report for good cause shown, as follows:
(A) The full report shall assess:
(I) The facility's or program's capacity to provide appropriatetreatment for the accused;
(II) The nature of treatments provided to the accused;
(III) What progress toward competency restoration has been madewith respect to the factors identified by the court in its initial order;
(IV) The accused's current level of mental disorder or mentaldeficiency and need for treatment, if any; and
(V) The likelihood of restoration of competency and the amountof time estimated to achieve competency.
(B) Upon receipt of the full report, the court shall hold ahearing to determine the accused's current status. The burden of proving thatthe accused is fit to proceed shall be on the proponent of the assertion. Following the hearing, the court shall determine by a preponderance of theevidence whether the accused is:
(I) Fit to proceed;
(II) Not fit to proceed with a substantial probability that theaccused may become fit to proceed in the foreseeable future; or
(III) Not fit to proceed without a substantial probability thatthe accused may become fit to proceed in the foreseeable future.
(C) If the court makes a determination pursuant to subdivision(B)(I) of this paragraph, the court shall proceed with the trial or any otherprocedures as may be necessary to adjudicate the charges;
(D) If the court makes a determination pursuant to subdivision(B)(II) of this paragraph, the court may order that the accused remaincommitted to the custody of the designated facility for the purpose of treatmentintended to restore the accused to competency;
(E) If the court makes a determination pursuant to subdivision(B)(III) of this paragraph, the court shall order the accused released from thecustody of the designated facility unless proper civil commitment proceedingshave been instituted and held as provided in title 25 of the Wyoming statutes.The continued retention, hospitalization and discharge of the accused shall bethe same as for other patients.
(ii) If it is determined pursuant to subdivision (i)(B)(II) ofthis subsection that there is substantial probability that the accused willregain his fitness to proceed, the commitment of the accused at a designatedfacility shall continue until the head of the facility reports to the courtthat in his opinion the accused is fit to proceed. If this opinion is notcontested by the state, the accused or his counsel, the criminal proceedingshall be resumed. If the opinion is contested, the court shall hold a hearingas provided in subsection (f) of this section. While the accused remains at adesignated facility under this subsection, the head of the facility shall issuea full report at least once every three (3) months in accordance with therequirements of subparagraph (i)(A) of this subsection on the progress theaccused is making towards regaining his fitness to proceed.
(h) A finding by the court that the accused is mentally fit toproceed shall not prejudice the accused in a defense to the crime charged onthe ground that at the time of the act he was afflicted with a mental illnessor deficiency excluding responsibility. Nor shall the finding be introduced inevidence on that issue or otherwise brought to the notice of the jury. Nostatement made by the accused in the course of any examination or treatmentpursuant to this section and no information received by any person in thecourse of the examination or treatment shall be admitted in evidence in anycriminal proceeding then or thereafter pending on any issue other than that ofthe mental condition of the accused.
(j) Notwithstanding any provision of this section, counsel forthe accused may make any and all legal objections which are susceptible of afair determination prior to trial without the personal participation of theaccused.
7-11-304. Responsibility for criminal conduct; plea; examination;commitment; use of statements by defendant.
(a) A person is not responsible for criminal conduct if at thetime of the criminal conduct, as a result of mental illness or deficiency, helacked substantial capacity either to appreciate the wrongfulness of hisconduct or to conform his conduct to the requirements of law. As used in thissection, the terms mental illness or deficiency mean only those severelyabnormal mental conditions that grossly and demonstrably impair a person'sperception or understanding of reality and that are not attributable primarilyto self-induced intoxication as defined by W.S. 6-1-202(b).
(b) As used in this section, the terms "mental illness ordeficiency" do not include an abnormality manifested only by repeatedcriminal or otherwise antisocial conduct.
(c) Evidence that a person is not responsible for criminalconduct by reason of mental illness or deficiency is not admissible at thetrial of the defendant unless a plea of "not guilty by reason of mentalillness or deficiency" is made. A plea of "not guilty by reason ofmental illness or deficiency" may be pleaded orally or in writing by thedefendant or his counsel at the time of his arraignment. The court, for goodcause shown, may also allow that plea to be entered at a later time. Such aplea does not deprive the defendant of other defenses.
(d) In all cases where a plea of "not guilty by reason ofmental illness or deficiency" is made, the court shall order anexamination of the defendant by a designated examiner. The order may include,but is not limited to, an examination of the defendant at the Wyoming statehospital on an inpatient or outpatient basis, at a local mental health centeron an inpatient or outpatient basis, or at his place of detention. Inselecting the examination site, the court may consider proximity to the court,availability of an examiner and the necessity for security precautions. If theorder provides for commitment of the defendant to a designated facility, thecommitment shall continue no longer than a forty-five (45) day period for theobservation and evaluation of the mental condition of the defendant, which timemay be extended by the approval of the court.
(e) If an examination of a defendant's fitness to proceed hasbeen ordered pursuant to W.S. 7-11-303, an examination following a plea of"not guilty by reason of mental illness or deficiency" shall notoccur, or be ordered, until the court has found the defendant is competent toproceed under W.S. 7-11-303.
(f) A written report of the examination shall be filed with theclerk of court. The report shall include:
(i) Detailed findings, including, but not limited to, the dataand reasoning that link the opinions specified in paragraphs (ii) and (iii) ofthis subsection;
(ii) An opinion as to whether the defendant has a mental illnessor deficiency;
(iii) An opinion as to whether at the time of the allegedcriminal conduct the defendant, as a result of mental illness or deficiency,lacked substantial capacity to appreciate the wrongfulness of his conduct or toconform his conduct to the requirements of law.
(g) The clerk of court shall deliver copies of the report tothe district attorney and to the defendant or his counsel. The report shallnot be a public record or open to the public. If an examination provided undersubsection (d) of this section was conducted, the report may be received inevidence and no new examination shall be required unless requested under thissubsection. Within five (5) days after receiving a copy of the report, thedefendant or the state, upon written request, may obtain an order granting anexamination of the defendant by a designated examiner chosen by the requesterof the examination.
(h) Except as otherwise provided in this subsection, nostatement made by the defendant in the course of any examination or treatmentpursuant to this section and no information received by any person in thecourse thereof is admissible in evidence in any criminal proceeding on anyissue other than that of the mental condition of the defendant. If thedefendant testifies in his own behalf, any statement made by him in the courseof any examination or treatment pursuant to this section may be admitted:
(i) For impeachment purposes; or
(ii) As evidence in a criminal prosecution for perjury.
7-11-305. Pleas of not guilty and not guilty by reason of mentalillness or deficiency; burden of proof; expert witnesses.
(a) When a defendant couples a plea of not guilty with a pleaof not guilty by reason of mental illness or deficiency, proof shall besubmitted before the same jury in a continuous trial on whether the defendantin fact committed the acts charged, on the remaining elements of the alleged criminaloffense and on the issue of mental responsibility of the defendant. In additionto other forms of verdict submitted to the jury, the court shall submit averdict by which the jury may find the defendant not guilty by reason of mentalillness or deficiency excluding responsibility.
(b) The prosecution shall prove beyond a reasonable doubt allthe elements of the offense charged. Every defendant is presumed to be mentallyresponsible. The defendant shall have the burden of going forward and proving bythe greater weight of evidence that, as a result of mental illness ordeficiency, he lacked capacity either to appreciate the wrongfulness of hisconduct or to conform his conduct to the requirements of the law.
(c) Only the designated examiners who examined the defendantpursuant to W.S. 7-11-303 or 7-11-304 are competent witnesses to testify as tothe defendant's mental responsibility.
(d) In addition, the state and the defendant may summon otherexpert witnesses who did not examine the defendant. Such experts are notcompetent to testify as to the mental responsibility of the defendant; however,they may testify as to the validity of the procedures followed and the generalscientific propositions stated by other witnesses.
(e) The designated examiner who examined the defendant maytestify as to and explain the nature of his examinations, his diagnosis ofmental illness or deficiency of the defendant, and his opinion as to thedefendant's ability to appreciate the wrongfulness of his conduct or to conformhis conduct to the requirements of law. The designated examiner may becross-examined as to his competence and the credibility of his diagnosis andhis opinion.
7-11-306. Disposition of persons found not guilty by reason of mentalillness or deficiency excluding responsibility.
(a) After entry of a judgment of not guilty by reason of mentalillness or deficiency excluding responsibility, the court shall, on the basisof evidence given at trial or at a separate hearing, make an order as providedin subsection (b), (c) or (d) of this section.
(b) If the court finds that the person is no longer affected bymental illness or deficiency, or that he no longer presents a substantial riskof danger to himself or others and is not in need of care, supervision ortreatment, the court shall order him discharged from custody.
(c) If the court finds that the person is affected by mentalillness or deficiency and presents a substantial risk of danger to himself orothers, but can be controlled adequately and given proper care, supervision andtreatment if released on supervision, the court shall order him releasedsubject to the supervisory orders of the court as are appropriate in theinterests of justice and the welfare of the defendant. The court may appointany person or state, county or local agency which the court considers capableof supervising the person upon release. Upon receipt of an order issued underthis subsection, the person or agency appointed shall assume the supervision ofthe person pursuant to the direction of the court. Conditions of release in theorder of the court may be modified from time to time and supervision may beterminated by order of the court. If upon a hearing the state shows by apreponderance of the evidence that the person released on supervision underthis subsection can no longer be controlled adequately by supervision, thecourt may order the person committed to the Wyoming state hospital or otherdesignated facility for custody, care and treatment.
(d) If the court finds that the person is affected by mentalillness or deficiency and presents substantial risk of danger to himself orothers and that he is not a proper subject for release or supervision, thecourt shall order him committed to the Wyoming state hospital or otherdesignated facility for custody, care and treatment.
(e) Following the first ninety (90) days of commitment to theWyoming state hospital or other designated facility under this section, if atany time the head of the facility is of the opinion that the person is nolonger affected by mental illness or deficiency, or that he no longer presentsa substantial risk of danger to himself or others, the head of the facilityshall apply to the court which committed the person for an order of discharge.The application shall be accompanied by a report setting forth the factssupporting the opinion of the head of the facility. Copies of the applicationand report shall be transmitted by the clerk of the court to the districtattorney. The court shall hold a hearing on this matter as soon as possible. If the state opposes the recommendation of the head of the facility, the statehas the burden of proof by a preponderance of the evidence to show that theperson continues to be affected by mental illness or deficiency and continuesto present a substantial risk of danger to himself or others and should remainin the custody of the designated facility.
(f) Ninety (90) days after the order of commitment, any personcommitted to the designated facility under this section may apply to thedistrict court of the county from which he was committed for an order ofdischarge upon the grounds that he is no longer affected by mental illness ordeficiency, or that he no longer presents a substantial risk of danger tohimself or others. The application for discharge shall be accompanied by areport of the head of the facility which shall be prepared and transmitted asprovided in subsection (e) of this section. The court shall hold a hearing onthis matter as soon as possible. The applicant shall prove by a preponderanceof the evidence his fitness for discharge. An application for an order ofdischarge under this subsection filed within six (6) months of the date of aprevious hearing shall be subject to summary disposition by the court.
(g) If the court, after a hearing upon any application fordischarge, or application for modification or termination of release onsupervision, under subsections (c) through (f) of this section, finds that theperson is no longer affected by mental illness or deficiency, or that he nolonger presents a substantial risk of danger to himself or others, the courtshall order him discharged from custody or from supervision. If the court findsthat the person is still affected by a mental illness or deficiency andpresents a substantial risk of danger to himself or others, but can becontrolled adequately if he is released on supervision, the court shall orderhim released on supervision as provided in subsection (c) of this section. Ifthe court finds that the person has not recovered from his mental illness ordeficiency and presents a substantial risk of danger to himself or others andcannot adequately be controlled if he is released on supervision, the courtshall order him remanded for continued care and treatment.
(h) In any hearing under this section the court may appoint one(1) or more designated examiners to examine the person and submit reports tothe court. Reports filed with the court shall include, but need not be limitedto, an opinion as to the mental condition of the person and whether the personpresents a substantial risk of danger to himself or others. To facilitateexamination, the court may order the person placed in the temporary custody ofany designated facility. If neither the district attorney nor the defendant orhis counsel, if any, contests the findings of the report filed with the court,the court may make the determination on the basis of the report filed with thecourt. If the report is contested, the court shall hold a hearing on the issue.If the report is received in evidence at the hearing, the party who conteststhe report has the right to summon and to cross-examine the examiners whosubmitted the report and to offer evidence upon the issue. Other evidenceregarding the person's mental condition may be introduced by either party.
7-11-307. Treatment of defendant committed to state hospital.
In all cases in which the defendant iscommitted to the Wyoming state hospital under the provisions of this act, thedefendant shall be received and treated in the same manner as all other personscommitted to the institution and be subject to the same rules and regulations.Due caution shall be exercised to prevent the escape of the defendant.
ARTICLE 4 - TESTIMONY AND WITNESSES
7-11-401. Testimony of defendant.
The defendant in all criminal cases, in allthe courts in this state, may be sworn and examined as a witness, if he soelects, but the defendant shall not be required to testify in any case unlesshe has been lawfully granted immunity from prosecution, penalty or forfeiture.The neglect or refusal of a defendant to testify without immunity having beengranted shall not create any presumption against him, nor shall any referencebe made to, nor shall any comment be made upon, his neglect or refusal totestify.
7-11-402. Subpoena of witnesses for indigent defendants.
(a) Upon application of a defendant and upon a satisfactoryshowing that the defendant is financially unable to pay the fees of a witnessand that the presence of the witness is necessary to an adequate defense, thecourt shall order that a subpoena be issued for service on a named witness andorder that all fees and costs incurred be paid as provided by subsection (b) ofthis section.
(b) If the court orders a subpoena to be issued under thissection, the costs incurred and the fees of the witness so subpoenaed shall bepaid by the public defender's office.
7-11-403. Applicability of rules and civil procedure provisions.
(a) To the extent practicable and when not otherwisespecifically provided, the provisions of the Wyoming Rules of Civil Procedure,the Wyoming Rules of Evidence and the Wyoming Code of Civil Procedure shallgovern in criminal cases, relative to:
(i) Compelling the attendance and testimony of witnesses;
(ii) The examination of witnesses and the administering of oathsand affirmations;
(iii) Proceedings for contempt; and
(iv) Proceedings to enforce the remedies and protect the rightsof parties.
7-11-404. Summoning of person within this state to appear as witnessin another state.
(a) If a judge of a court of record in any state which by itslaws has made provision for commanding persons within that state to attend andtestify in criminal prosecutions in this state certifies under the seal of thecourt that there is a criminal prosecution pending in such court, that aperson being within this state is a material witness in the prosecution, andthat his presence will be required for a specified number of days, uponpresentation of the certificate to any judge of a court of record in thecounty in which such person is, the judge shall fix a time and place forhearing and shall notify the witness of the time and place.
(b) If at the hearing the judge determines that the witness ismaterial and necessary, that it will not cause undue hardship to the witness tobe compelled to attend and testify in the prosecution in the other state andthat the laws of the state in which the prosecution is pending and of any otherstate through which the witness may be required to pass by ordinary course oftravel will give to him protection from arrest and the service of civil andcriminal process, he shall issue a summons with a copy of the certificate attached,directing the witness to attend and testify in the court where the prosecutionis pending at a time and place specified in the summons.
(c) A witness who is summoned to attend and testify in acriminal prosecution in another state as provided by this section, shall not becompelled to attend unless he is paid or tendered by some properly authorizedperson compensation including mileage for each mile traveled by the ordinaryroute to and from the court where the prosecution is pending and witness feesfor each day that he is required to travel and attend as a witness. Themileage and witness fees shall be at the same rate paid other witnesses underthe laws of the state requiring attendance. A witness who has been paid ortendered the compensation required by this subsection and who fails withoutgood cause to attend and testify as directed in the summons, shall be punishedin a manner provided for the punishment of any witness who disobeys a summonsissued from a court of record in this state.
7-11-405. Summoning of person in another state to appear as witness inthis state.
(a) If a person in any state, which by its laws has madeprovisions for commanding persons within its borders to attend and testify incriminal prosecutions in this state, is a material witness in a prosecutionpending in a court of record in this state, a judge of the Wyoming court mayissue a certificate under the seal of the court stating these facts andspecifying the number of days the witness will be required. This certificateshall be presented to a judge of a court of record in the county in which thewitness is found.
(b) If the witness is summoned to attend and testify in thecriminal prosecution in this state, he shall be paid or tendered payment formileage for each mile traveled by the ordinary route to and from the courtwhere the prosecution is pending and witness fees for each day that he isrequired to travel and attend as a witness at the same rate paid otherwitnesses under the laws of this state. A witness who has appeared inaccordance with the provisions of the summons shall not be required to remainwithin this state a longer period of time than the period mentioned in thecertificate of the Wyoming court.
7-11-406. Exemption of out-of-state witness from arrest or service ofprocess.
(a) If a person comes into this state pursuant to a summonsdirecting him to attend and testify in a criminal prosecution in this state heshall not while in this state pursuant to the summons be subject to arrest orthe service of process, civil or criminal, in connection with matters whicharose before his entrance into this state under the summons.
(b) If a person passes through this state while going toanother state pursuant to a summons to attend and testify in a criminalprosecution in that state or while returning therefrom, he shall not while sopassing through this state be subject to arrest or the service of process,civil or criminal, in connection with matters which arose before his entranceinto this state under the summons.
7-11-407. Procedures for taking depositions.
Procedures for the taking of depositions incriminal cases shall be governed by the Wyoming Rules of Criminal Procedure.
7-11-408. Videotape depositions.
(a) In any case in which the defendant is charged with incestas defined in W.S. 6-4-402(a) or sexual assault as defined in W.S. 6-2-302through 6-2-304 and 6-2-314 through 6-2-317 and a child less than twelve (12)years of age is the victim, the judge may order the taking of a videotapedeposition of the child. The videotaping shall be done under the supervision ofthe court.
(b) Persons allowed to be present at the videotaping of thedeposition are the child, the judge, prosecutor, defendant and defense counsel,a family member who was not a witness to the offense or a support person forthe child and any technicians required to operate the equipment.
(c) Before ordering the deposition, the judge shall find that:
(i) The child's testimony would be relevant and material;
(ii) The best interests of the child would be served bypermitting the videotape deposition;
(iii) A potential physical or psychological harm to the child islikely to occur if the child is required to testify which would effectivelyrender the child incapable to testify at the trial; and
(iv) The defendant or his legal counsel has the opportunity tobe present and to cross-examine the child at the videotape deposition.
(d) The judge may deny the defendant's face-to-faceconfrontation of the child at the videotape deposition if:
(i) The defendant is alleged to have inflicted physical harm oris alleged to have threatened to inflict physical harm upon the child, andphysical or psychological harm to the child is likely to occur if there is aface-to-face confrontation of the child by defendant;
(ii) The defendant's legal counsel will have reasonableopportunity to confer with his client before and at any time during thevideotape deposition; and
(iii) The defendant will have opportunity to view and hear theproceedings while being taken.
(e) A videotape deposition may be admitted at trial in lieu ofthe direct testimony of the child, if the judge finds, after hearing, that:
(i) The visual and sound qualities of the videotape aresatisfactory;
(ii) The videotape is not misleading;
(iii) All portions of the videotape that have been ruledinadmissible have been deleted; and
(iv) A potential physical or psychological harm to the child islikely to occur if the child is required to testify which would effectivelyrender the child incapable to testify at the trial.
(f) Children unable to articulate what was done to them will bepermitted to demonstrate the sexual act or acts committed against them with theaid of anatomically correct dolls. Such demonstrations will be under thesupervision of the court and shall be videotaped to be viewed at trial, andshall be received into evidence as demonstrative evidence.
(g) Videotapes which are part of the court record are subjectto a protective order to preserve the privacy of the child.
(h) If the prosecutor elects to utilize a videotaped depositionpursuant to this section and the videotape has been taken and is admissible,the child may not testify in court without the consent of the defendant.
ARTICLE 5 - VERDICT and SENTENCE
7-11-501. Return of verdict; poll of jury.
In all criminal cases the verdict shall beunanimous. It shall be returned by the jury to the judge in open court. Beforethe verdict is accepted and recorded, the jury shall be polled at the requestof any party or upon the court's own motion. If upon the poll there is notunanimous concurrence, the jury may be directed to retire for furtherdeliberations or may be discharged.
7-11-502. Conviction of necessary included offense or attempt.
In any criminal case the defendant may befound guilty of an offense necessarily included in the offense charged or of anattempt to commit either the offense charged or an offense necessarily includedtherein.
7-11-503. Execution of jail sentence.
When any person convicted of an offense issentenced to imprisonment in the county jail, the court shall order thedefendant into the custody of the sheriff, who shall deliver him, togetherwith the record of conviction, to the jailor, in whose custody he shall remainin the jail of the proper county, until the term of his confinement expires,or he is pardoned or otherwise legally discharged.
7-11-504. Commitment until fine and costs paid.
If a defendant sentenced to pay a fine orcosts defaults in payment, the court may order the defendant to show cause whyhe should not be committed to jail. If the court finds that the defendant'sdefault is willful or is due to a failure on defendant's part to make a goodfaith effort to obtain the funds required for the payment, the court may orderhim committed until the fine or costs, or a specified part thereof, is paid.The defendant shall be given a credit for each day of imprisonment at the rateprovided by W.S. 6-10-105, and may earn additional credits against his fine orcosts for work performed as provided by W.S. 7-16-101 through 7-16-104.
7-11-505. Payment of costs of prosecution.
Payment of the costs of prosecution may beadded to and made a part of the sentence in any felony or misdemeanor case ifthe court determines that the defendant has an ability to pay or that areasonable probability exists that the defendant will have an ability to pay.
7-11-506. Trial transcript for indigent prisoner upon appeal.
Any person sentenced to imprisonment in astate penal institution, who appeals to the supreme court, may file, in thecourt in which that person was convicted, a petition requesting that the personbe furnished with a stenographic transcript of the proceedings at that person'strial. The petition shall be verified by the petitioner and shall state factsshowing that at the time of conviction and at the time of filing the petitionthat person was without financial means to pay for the transcript. If the judgewho imposed sentence, or any other judge of the court, finds that the defendantis without financial means with which to obtain the transcript of theproceedings at trial, the judge shall order the reporter to transcribe anoriginal and copy of the reporter's notes. The original of the transcript shallbe filed with the clerk and the copy shall be delivered to the defendantwithout charge. The reporter's fees for preparation of the transcript shall bethe same as those prescribed in W.S. 5-3-410, and shall be paid by the countyin which the conviction is had.
7-11-507. Advisement of loss of firearms rights upon conviction.
(a) No judgment of conviction shall be entered upon a plea ofguilty or nolo contendere to any charge which may result in thedisqualification of the defendant to possess firearms pursuant to theprovisions of 18 U.S.C. 922(g)(1), (9) and 924(a)(2) or other federal lawunless the defendant was advised in open court by the judge:
(i) Of the collateral consequences that may arise from thatconviction pursuant to the provisions of 18 U.S.C. 921(a)(33), 922(g)(1),(9) and 924(a)(2); and
(ii) That if the defendant is a peace officer, member of thearmed forces, hunting guide, security guard or engaged in any other professionor occupation requiring the carrying or possession of a firearm, that he maynow, or in the future, lose the right to engage in that profession oroccupation should he be convicted.