2010 Wyoming Statutes
Title 7 - Criminal Procedure
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 in district courts and in circuit courts are formed in the same manner as trial juries in civil actions.

 

7-11-102. Trial of accused.

 

In all criminal cases the jury summoned and impaneled according to the laws relating to the summoning or impaneling of juries 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 misdemeanors four (4) jurors. The prosecution may challenge peremptorily, in capital cases, twelve (12) jurors, in other felonies eight (8) jurors, and in misdemeanors four (4) jurors. The number of peremptory challenges allowed to the prosecution shall be multiplied by the number of defendants on trial in each case. Each defendant shall be allowed separate peremptory challenges.

 

(b) All challenges made under subsection (a) of this section shall be secret challenges.

 

7-11-104. Trial of challenges for cause.

 

Both the defense and the prosecution may challenge jurors for cause prior to the jury being sworn. Challenges for cause shall be tried by the court.

 

7-11-105. General grounds for challenging jurors.

 

 

(a) The following is good cause for challenge to any person called as a juror in a criminal case:

 

(i) That he was a member of the grand jury which found the indictment;

 

(ii) That he has formed or expressed an opinion as to the guilt or innocence of the accused, or is biased or prejudiced for or against the accused;

 

(iii) In a case in which the death penalty may be imposed, he states that his views on capital punishment would prevent or substantially impair performance of his duties as a juror in accordance with his oath or affirmation and the instructions of the court;

 

(iv) That he is a relation within the fifth degree to the person alleged to be injured, or attempted to be injured, by the offense charged or to the person on whose complaint the prosecution was instituted, or to the defendant;

 

(v) That he has served on a petit jury which was sworn in the same cause against the same defendant, and which jury either rendered a verdict which was set aside, or was discharged after hearing the evidence;

 

(vi) That he has served as a juror in a civil case brought against 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 criminal prosecutions 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 act as a juror in a criminal case has formed or expressed an opinion as to the guilt or innocence of the accused from news media reports or rumor if:

 

(i) The prospective juror states that he can lay aside his impression or opinion and render a verdict based on the evidence presented in court; and

 

(ii) The court is satisfied, from the examination of the prospective juror or from other evidence, that he will render an impartial verdict 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 or affirmation shall be administered to the jurors providing, in substance, that they and each of them will well and truly try the matter in issue between the state of Wyoming, plaintiff, and the named defendant, and render a true verdict according to the evidence.

 

ARTICLE 2 - TRIAL

 

7-11-201. Order of proceedings.

 

 

(a) After the jury has been impaneled and sworn, the trial shall proceed in the following order:

 

(i) The counsel for the state shall state the case of the prosecution, and may briefly state the evidence by which he expects to sustain it;

 

(ii) The defendant or his counsel may then state his defense and may briefly state the evidence he expects to offer in support of it, or may wait until the evidence on the part of the state is closed;

 

(iii) The state shall first produce its evidence; the defendant will then produce his evidence;

 

(iv) The state will then be confined to rebutting evidence unless the court, for good reasons, in furtherance of justice, shall permit it to offer evidence in chief;

 

(v) When the evidence is concluded, either party may request instructions to the jury on the points of law, which shall be given or refused by the court. The instructions shall be reduced to writing;

 

(vi) Before the argument of the case is begun, the court shall immediately, and before proceeding with other business, charge the jury. The charge 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. All written charges and instructions, shall be taken by the jury in their retirement and returned with their verdict into court, and shall remain on file with the papers of the case;

 

(vii) When the evidence is concluded, and the charge given by the court, unless the case is submitted without argument, the counsel for the state shall commence, the defendant or his counsel follow, and the counsel for the state shall conclude the argument to the jury.

 

7-11-202. Presence of defendant.

 

Except as otherwise provided by this section, the defendant shall be present at the arraignment, at every stage of the trial, including the impaneling of the jury, and the return of the verdict and at the imposition of sentence. In prosecution for offenses not punishable by death, the defendant's voluntary absence after the trial has been commenced in his presence shall not prevent continuing the trial to and including the return of the verdict. A corporation may appear by counsel for all purposes. In prosecutions of all misdemeanor cases, the court, with the written consent of the defendant, may permit arraignment, plea, and imposition of sentence in a defendant's absence. The defendant's presence is not required at a reduction of sentence hearing.

 

7-11-203. Dismissal for unnecessary delay.

 

If there is unnecessary delay in presenting the charge to a grand jury or in filing an information against a defendant who has been held to answer to the district court, or if there is unnecessary delay in 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 not otherwise specifically provided, procedures relating to conduct of the jury, admonitions of the court and the manner of returning verdicts, shall be governed by the Wyoming Statutes of Civil Procedure and the Wyoming Rules of Civil Procedure.

 

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 the prosecution:

 

(i) Sickness of a juror or other accident or calamity requiring discharge of the jury;

 

(ii) Failure of the jury to return a verdict; or

 

(iii) Dismissal of the proceeding due to a failure of the complaint, 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 and after the case is submitted to them.

 

(b) In the trial of any capital case to the jury, the court may, with the consent of the defendant and the district attorney, allow the jurors to separate during the trial and after the case is submitted to them.

 

(c) If the jurors are permitted to separate, they shall be admonished by the court that they shall not discuss the case with anyone except while deliberating in the jury room, and are not to form or express an opinion except 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 licensed psychiatrist, or other physician with forensic training or a licensed psychologist with forensic training;

 

(ii) "Facility" means the Wyoming state hospital or other facility designated by the court which can adequately provide for the security, examination or treatment of the accused;

 

(iii) "Mental deficiency" means a defect attributable to 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 the commission of an offense while, as a result of mental illness or deficiency, he lacks the capacity, to:

 

(i) Comprehend his position;

 

(ii) Understand the nature and object of the proceedings against him;

 

(iii) Conduct his defense in a rational manner; and

 

(iv) Cooperate with his counsel to the end that any available defense 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, by motion or upon the court's own motion, that there is reasonable cause to believe that the accused has a mental illness or deficiency making him unfit to proceed, all further proceedings shall be suspended.

 

(b) The court shall order an examination of the accused by a designated examiner. The order may include, but is not limited to, an examination of the accused at the Wyoming state hospital on an inpatient or outpatient basis, at a local mental health center on an inpatient or outpatient basis, or at his place of detention. In selecting the examination site, the court may consider proximity to the court, availability of an examiner, and the necessity for security precautions. If the order provides for commitment of the accused to a designated facility, the commitment shall continue no longer than a thirty (30) day period for the study of the mental condition of the accused. The prosecuting attorney and counsel for the accused shall cooperate in providing the relevant information and materials to the designated examiner, and the court may order as necessary that relevant information be provided to the examiner.

 

(c) Written reports of the examination shall be filed with the clerk of court. The report shall include:

 

(i) Detailed findings;

 

(ii) An opinion as to whether the accused has a mental illness or deficiency, and its probable duration;

 

(iii) An opinion as to whether the accused, as a result of mental illness or deficiency, lacks capacity to comprehend his position, to understand the nature and object of the proceedings against him, to conduct his defense in a rational manner, and to cooperate with his counsel to the end that any available defense may be interposed;

 

(iv) Repealed By Laws 2009, Ch. 31, 2.

 

(v) A recommendation as to whether the accused should be held in a designated facility for treatment pending determination by the court of the issue of mental fitness to proceed; and

 

(vi) A recommendation as to whether the accused, if found by the court to be mentally fit to proceed, should be detained in a designated facility pending further proceedings.

 

(d) The clerk of court shall deliver copies of the report to the district attorney and to the accused or his counsel. The report is not a public record or open to the public. After receiving a copy of the report, both the 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 designated examiner of their own choosing. For each examination ordered, a report conforming to the requirements of subsection (c) of this section shall be furnished to the court and the opposing party.

 

(e) If the initial report contains the recommendation that the accused should be held in a designated facility pending determination of the issue of mental fitness to proceed, the court may order that the accused be committed to or held in a designated facility pending determination of mental fitness to proceed. The court may order the involuntary administration of antipsychotic medications to a person accused of a serious crime as defined in W.S. 7-6-102(a)(v) to render the accused competent to stand trial, provided the court finds:

 

(i) There are important governmental interests at stake including, 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 medications will significantly further the governmental interest and the administration of the medication is:

 

(A) Substantially likely to render the accused competent to stand trial; and

 

(B) Substantially unlikely to have side effects that will interfere significantly with the ability of the accused to assist counsel in conducting a trial defense, thereby rendering the trial unfair.

 

(iii) That any alternative and less intrusive treatments are unlikely to achieve substantially the same results; and

 

(iv) The administration pursuant to a prescription by a licensed psychiatrist of the antipsychotic medications is medically appropriate and is in the best medical interests of the accused in light of the accused's medical condition.

 

(f) If neither the state, nor the accused or his counsel contests the opinion referred to in paragraph (c)(iii) of this section relative to fitness to proceed, the court may make a determination and finding of record on this issue on the basis of the report filed or the court may hold a hearing on its own motion. If the opinion relative to fitness to proceed is contested the court shall hold a hearing on the issue. The report or reports may be received in evidence at any hearing on the issue. The party contesting any opinion relative to fitness to proceed has the right to summon and cross-examine the persons who rendered the opinion and to offer evidence upon the issue.

 

(g) If the court determines that the accused is mentally fit to proceed, the court may order that the accused be held in confinement, be committed to a designated facility pending further proceedings, or be released on bail or other conditions. If the court determines that the accused lacks mental fitness to proceed, the proceedings against him shall be suspended and the court shall commit him to a designated facility to determine whether there is substantial probability that the accused will regain his fitness to proceed:

 

(i) The examiner shall provide a full report to the court, the prosecuting attorney and the accused or his counsel within ninety (90) days of arrival of the accused at the designated treating facility. If the examiner is unable to complete the assessment within ninety (90) days the examiner shall provide to the court and counsel a summary progress report which informs the court that additional time is necessary to complete the assessment, in which case the examiner may have up to an additional ninety (90) days to provide the full report for good cause shown, as follows:

 

(A) The full report shall assess:

 

(I) The facility's or program's capacity to provide appropriate treatment for the accused;

 

(II) The nature of treatments provided to the accused;

 

(III) What progress toward competency restoration has been made with respect to the factors identified by the court in its initial order;

 

(IV) The accused's current level of mental disorder or mental deficiency and need for treatment, if any; and

 

(V) The likelihood of restoration of competency and the amount of time estimated to achieve competency.

 

(B) Upon receipt of the full report, the court shall hold a hearing to determine the accused's current status. The burden of proving that the accused is fit to proceed shall be on the proponent of the assertion. Following the hearing, the court shall determine by a preponderance of the evidence whether the accused is:

 

(I) Fit to proceed;

 

(II) Not fit to proceed with a substantial probability that the accused may become fit to proceed in the foreseeable future; or

 

(III) Not fit to proceed without a substantial probability that the 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 other procedures 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 remain committed to the custody of the designated facility for the purpose of treatment intended 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 the custody of the designated facility unless proper civil commitment proceedings have been instituted and held as provided in title 25 of the Wyoming statutes. The continued retention, hospitalization and discharge of the accused shall be the same as for other patients.

 

(ii) If it is determined pursuant to subdivision (i)(B)(II) of this subsection that there is substantial probability that the accused will regain his fitness to proceed, the commitment of the accused at a designated facility shall continue until the head of the facility reports to the court that in his opinion the accused is fit to proceed. If this opinion is not contested by the state, the accused or his counsel, the criminal proceeding shall be resumed. If the opinion is contested, the court shall hold a hearing as provided in subsection (f) of this section. While the accused remains at a designated facility under this subsection, the head of the facility shall issue a full report at least once every three (3) months in accordance with the requirements of subparagraph (i)(A) of this subsection on the progress the accused is making towards regaining his fitness to proceed.

 

(h) A finding by the court that the accused is mentally fit to proceed shall not prejudice the accused in a defense to the crime charged on the ground that at the time of the act he was afflicted with a mental illness or deficiency excluding responsibility. Nor shall the finding be introduced in evidence on that issue or otherwise brought to the notice of the jury. No statement made by the accused in the course of any examination or treatment pursuant to this section and no information received by any person in the course of the examination or treatment shall be admitted in evidence in any criminal proceeding then or thereafter pending on any issue other than that of the mental condition of the accused.

 

(j) Notwithstanding any provision of this section, counsel for the accused may make any and all legal objections which are susceptible of a fair determination prior to trial without the personal participation of the accused.

 

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 the time of the criminal conduct, as a result of mental illness or deficiency, he lacked substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law. As used in this section, the terms mental illness or deficiency mean only those severely abnormal mental conditions that grossly and demonstrably impair a person's perception or understanding of reality and that are not attributable primarily to self-induced intoxication as defined by W.S. 6-1-202(b).

 

(b) As used in this section, the terms "mental illness or deficiency" do not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct.

 

(c) Evidence that a person is not responsible for criminal conduct by reason of mental illness or deficiency is not admissible at the trial of the defendant unless a plea of "not guilty by reason of mental illness or deficiency" is made. A plea of "not guilty by reason of mental illness or deficiency" may be pleaded orally or in writing by the defendant or his counsel at the time of his arraignment. The court, for good cause shown, may also allow that plea to be entered at a later time. Such a plea does not deprive the defendant of other defenses.

 

(d) In all cases where a plea of "not guilty by reason of mental illness or deficiency" is made, the court shall order an examination of the defendant by a designated examiner. The order may include, but is not limited to, an examination of the defendant at the Wyoming state hospital on an inpatient or outpatient basis, at a local mental health center on an inpatient or outpatient basis, or at his place of detention. In selecting the examination site, the court may consider proximity to the court, availability of an examiner and the necessity for security precautions. If the order provides for commitment of the defendant to a designated facility, the commitment shall continue no longer than a forty-five (45) day period for the observation and evaluation of the mental condition of the defendant, which time may be extended by the approval of the court.

 

(e) If an examination of a defendant's fitness to proceed has been ordered pursuant to W.S. 7-11-303, an examination following a plea of "not guilty by reason of mental illness or deficiency" shall not occur, or be ordered, until the court has found the defendant is competent to proceed under W.S. 7-11-303.

 

(f) A written report of the examination shall be filed with the clerk of court. The report shall include:

 

(i) Detailed findings, including, but not limited to, the data and reasoning that link the opinions specified in paragraphs (ii) and (iii) of this subsection;

 

(ii) An opinion as to whether the defendant has a mental illness or deficiency;

 

(iii) An opinion as to whether at the time of the alleged criminal conduct the defendant, as a result of mental illness or deficiency, lacked substantial capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law.

 

(g) The clerk of court shall deliver copies of the report to the district attorney and to the defendant or his counsel. The report shall not be a public record or open to the public. If an examination provided under subsection (d) of this section was conducted, the report may be received in evidence and no new examination shall be required unless requested under this subsection. Within five (5) days after receiving a copy of the report, the defendant or the state, upon written request, may obtain an order granting an examination of the defendant by a designated examiner chosen by the requester of the examination.

 

(h) Except as otherwise provided in this subsection, no statement made by the defendant in the course of any examination or treatment pursuant to this section and no information received by any person in the course thereof is admissible in evidence in any criminal proceeding on any issue other than that of the mental condition of the defendant. If the defendant testifies in his own behalf, any statement made by him in the course of 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 mental illness or deficiency; burden of proof; expert witnesses.

 

 

(a) When a defendant couples a plea of not guilty with a plea of not guilty by reason of mental illness or deficiency, proof shall be submitted before the same jury in a continuous trial on whether the defendant in fact committed the acts charged, on the remaining elements of the alleged criminal offense and on the issue of mental responsibility of the defendant. In addition to other forms of verdict submitted to the jury, the court shall submit a verdict by which the jury may find the defendant not guilty by reason of mental illness or deficiency excluding responsibility.

 

(b) The prosecution shall prove beyond a reasonable doubt all the elements of the offense charged. Every defendant is presumed to be mentally responsible. The defendant shall have the burden of going forward and proving by the greater weight of evidence that, as a result of mental illness or deficiency, he lacked capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law.

 

(c) Only the designated examiners who examined the defendant pursuant to W.S. 7-11-303 or 7-11-304 are competent witnesses to testify as to the defendant's mental responsibility.

 

(d) In addition, the state and the defendant may summon other expert witnesses who did not examine the defendant. Such experts are not competent to testify as to the mental responsibility of the defendant; however, they may testify as to the validity of the procedures followed and the general scientific propositions stated by other witnesses.

 

(e) The designated examiner who examined the defendant may testify as to and explain the nature of his examinations, his diagnosis of mental illness or deficiency of the defendant, and his opinion as to the defendant's ability to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law. The designated examiner may be cross-examined as to his competence and the credibility of his diagnosis and his opinion.

 

7-11-306. Disposition of persons found not guilty by reason of mental illness or deficiency excluding responsibility.

 

(a) After entry of a judgment of not guilty by reason of mental illness or deficiency excluding responsibility, the court shall, on the basis of evidence given at trial or at a separate hearing, make an order as provided in subsection (b), (c) or (d) of this section.

 

(b) If the court finds that the person is no longer affected by mental illness or deficiency, or that he no longer presents a substantial risk of danger to himself or others and is not in need of care, supervision or treatment, the court shall order him discharged from custody.

 

(c) If the court finds that the person is affected by mental illness or deficiency and presents a substantial risk of danger to himself or others, but can be controlled adequately and given proper care, supervision and treatment if released on supervision, the court shall order him released subject to the supervisory orders of the court as are appropriate in the interests of justice and the welfare of the defendant. The court may appoint any person or state, county or local agency which the court considers capable of supervising the person upon release. Upon receipt of an order issued under this subsection, the person or agency appointed shall assume the supervision of the person pursuant to the direction of the court. Conditions of release in the order of the court may be modified from time to time and supervision may be terminated by order of the court. If upon a hearing the state shows by a preponderance of the evidence that the person released on supervision under this subsection can no longer be controlled adequately by supervision, the court may order the person committed to the Wyoming state hospital or other designated facility for custody, care and treatment.

 

(d) If the court finds that the person is affected by mental illness or deficiency and presents substantial risk of danger to himself or others and that he is not a proper subject for release or supervision, the court shall order him committed to the Wyoming state hospital or other designated facility for custody, care and treatment.

 

(e) Following the first ninety (90) days of commitment to the Wyoming state hospital or other designated facility under this section, if at any time the head of the facility is of the opinion that the person is no longer affected by mental illness or deficiency, or that he no longer presents a substantial risk of danger to himself or others, the head of the facility shall apply to the court which committed the person for an order of discharge. The application shall be accompanied by a report setting forth the facts supporting the opinion of the head of the facility. Copies of the application and report shall be transmitted by the clerk of the court to the district attorney. 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 state has the burden of proof by a preponderance of the evidence to show that the person continues to be affected by mental illness or deficiency and continues to present a substantial risk of danger to himself or others and should remain in the custody of the designated facility.

 

(f) Ninety (90) days after the order of commitment, any person committed to the designated facility under this section may apply to the district court of the county from which he was committed for an order of discharge upon the grounds that he is no longer affected by mental illness or deficiency, or that he no longer presents a substantial risk of danger to himself or others. The application for discharge shall be accompanied by a report of the head of the facility which shall be prepared and transmitted as provided in subsection (e) of this section. The court shall hold a hearing on this matter as soon as possible. The applicant shall prove by a preponderance of the evidence his fitness for discharge. An application for an order of discharge under this subsection filed within six (6) months of the date of a previous hearing shall be subject to summary disposition by the court.

 

(g) If the court, after a hearing upon any application for discharge, or application for modification or termination of release on supervision, under subsections (c) through (f) of this section, finds that the person is no longer affected by mental illness or deficiency, or that he no longer presents a substantial risk of danger to himself or others, the court shall order him discharged from custody or from supervision. If the court finds that the person is still affected by a mental illness or deficiency and presents a substantial risk of danger to himself or others, but can be controlled adequately if he is released on supervision, the court shall order him released on supervision as provided in subsection (c) of this section. If the court finds that the person has not recovered from his mental illness or deficiency and presents a substantial risk of danger to himself or others and cannot adequately be controlled if he is released on supervision, the court shall 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 to the court. Reports filed with the court shall include, but need not be limited to, an opinion as to the mental condition of the person and whether the person presents a substantial risk of danger to himself or others. To facilitate examination, the court may order the person placed in the temporary custody of any designated facility. If neither the district attorney nor the defendant or his 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 the court. 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 contests the report has the right to summon and to cross-examine the examiners who submitted the report and to offer evidence upon the issue. Other evidence regarding 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 is committed to the Wyoming state hospital under the provisions of this act, the defendant shall be received and treated in the same manner as all other persons committed 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 all the courts in this state, may be sworn and examined as a witness, if he so elects, but the defendant shall not be required to testify in any case unless he has been lawfully granted immunity from prosecution, penalty or forfeiture. The neglect or refusal of a defendant to testify without immunity having been granted shall not create any presumption against him, nor shall any reference be made to, nor shall any comment be made upon, his neglect or refusal to testify.

 

7-11-402. Subpoena of witnesses for indigent defendants.

 

 

(a) Upon application of a defendant and upon a satisfactory showing that the defendant is financially unable to pay the fees of a witness and that the presence of the witness is necessary to an adequate defense, the court shall order that a subpoena be issued for service on a named witness and order that all fees and costs incurred be paid as provided by subsection (b) of this section.

 

(b) If the court orders a subpoena to be issued under this section, the costs incurred and the fees of the witness so subpoenaed shall be paid by the public defender's office.

 

7-11-403. Applicability of rules and civil procedure provisions.

 

(a) To the extent practicable and when not otherwise specifically provided, the provisions of the Wyoming Rules of Civil Procedure, the Wyoming Rules of Evidence and the Wyoming Statutes of Civil Procedure shall govern in criminal cases, relative to:

 

(i) Compelling the attendance and testimony of witnesses;

 

(ii) The examination of witnesses and the administering of oaths and affirmations;

 

(iii) Proceedings for contempt; and

 

(iv) Proceedings to enforce the remedies and protect the rights of parties.

 

7-11-404. Summoning of person within this state to appear as witness in another state.

 

 

(a) If a judge of a court of record in any state which by its laws has made provision for commanding persons within that state to attend and testify in criminal prosecutions in this state certifies under the seal of the court that there is a criminal prosecution pending in such court, that a person being within this state is a material witness in the prosecution, and that his presence will be required for a specified number of days, upon presentation of the certificate to any judge of a court of record in the county in which such person is, the judge shall fix a time and place for hearing and shall notify the witness of the time and place.

 

(b) If at the hearing the judge determines that the witness is material and necessary, that it will not cause undue hardship to the witness to be compelled to attend and testify in the prosecution in the other state and that the laws of the state in which the prosecution is pending and of any other state through which the witness may be required to pass by ordinary course of travel will give to him protection from arrest and the service of civil and criminal 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 prosecution is pending at a time and place specified in the summons.

 

(c) A witness who is summoned to attend and testify in a criminal prosecution in another state as provided by this section, shall not be compelled to attend unless he is paid or tendered by some properly authorized person compensation including mileage for each mile traveled by the ordinary route to and from the court where the prosecution is pending and witness fees for each day that he is required to travel and attend as a witness. The mileage and witness fees shall be at the same rate paid other witnesses under the laws of the state requiring attendance. A witness who has been paid or tendered the compensation required by this subsection and who fails without good cause to attend and testify as directed in the summons, shall be punished in a manner provided for the punishment of any witness who disobeys a summons issued from a court of record in this state.

 

7-11-405. Summoning of person in another state to appear as witness in this state.

 

 

(a) If a person in any state, which by its laws has made provisions for commanding persons within its borders to attend and testify in criminal prosecutions in this state, is a material witness in a prosecution pending in a court of record in this state, a judge of the Wyoming court may issue a certificate under the seal of the court stating these facts and specifying the number of days the witness will be required. This certificate shall be presented to a judge of a court of record in the county in which the witness is found.

 

(b) If the witness is summoned to attend and testify in the criminal prosecution in this state, he shall be paid or tendered payment for mileage for each mile traveled by the ordinary route to and from the court where the prosecution is pending and witness fees for each day that he is required to travel and attend as a witness at the same rate paid other witnesses under the laws of this state. A witness who has appeared in accordance with the provisions of the summons shall not be required to remain within this state a longer period of time than the period mentioned in the certificate of the Wyoming court.

 

7-11-406. Exemption of out-of-state witness from arrest or service of process.

 

 

(a) If a person comes into this state pursuant to a summons directing him to attend and testify in a criminal prosecution in this state he shall not while in this state pursuant to the summons be subject to arrest or the service of process, civil or criminal, in connection with matters which arose before his entrance into this state under the summons.

 

(b) If a person passes through this state while going to another state pursuant to a summons to attend and testify in a criminal prosecution in that state or while returning therefrom, he shall not while so passing through this state be subject to arrest or the service of process, civil or criminal, in connection with matters which arose before his entrance into this state under the summons.

 

7-11-407. Procedures for taking depositions.

 

Procedures for the taking of depositions in criminal 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 incest as defined in W.S. 6-4-402(a) or sexual assault as defined in W.S. 6-2-302 through 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 videotape deposition of the child. The videotaping shall be done under the supervision of the court.

 

(b) Persons allowed to be present at the videotaping of the deposition 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 for the 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 by permitting the videotape deposition;

 

(iii) A potential physical or psychological harm to the child is likely to occur if the child is required to testify which would effectively render the child incapable to testify at the trial; and

 

(iv) The defendant or his legal counsel has the opportunity to be present and to cross-examine the child at the videotape deposition.

 

(d) The judge may deny the defendant's face-to-face confrontation of the child at the videotape deposition if:

 

(i) The defendant is alleged to have inflicted physical harm or is alleged to have threatened to inflict physical harm upon the child, and physical or psychological harm to the child is likely to occur if there is a face-to-face confrontation of the child by defendant;

 

(ii) The defendant's legal counsel will have reasonable opportunity to confer with his client before and at any time during the videotape deposition; and

 

(iii) The defendant will have opportunity to view and hear the proceedings while being taken.

 

(e) A videotape deposition may be admitted at trial in lieu of the direct testimony of the child, if the judge finds, after hearing, that:

 

(i) The visual and sound qualities of the videotape are satisfactory;

 

(ii) The videotape is not misleading;

 

(iii) All portions of the videotape that have been ruled inadmissible have been deleted; and

 

(iv) A potential physical or psychological harm to the child is likely to occur if the child is required to testify which would effectively render the child incapable to testify at the trial.

 

(f) Children unable to articulate what was done to them will be permitted to demonstrate the sexual act or acts committed against them with the aid of anatomically correct dolls. Such demonstrations will be under the supervision of the court and shall be videotaped to be viewed at trial, and shall be received into evidence as demonstrative evidence.

 

(g) Videotapes which are part of the court record are subject to a protective order to preserve the privacy of the child.

 

(h) If the prosecutor elects to utilize a videotaped deposition pursuant 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 be unanimous. It shall be returned by the jury to the judge in open court. Before the verdict is accepted and recorded, 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 unanimous concurrence, the jury may be directed to retire for further deliberations or may be discharged.

 

7-11-502. Conviction of necessary included offense or attempt.

 

In any criminal case 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 therein.

 

7-11-503. Execution of jail sentence.

 

When any person convicted of an offense is sentenced to imprisonment in the county jail, the court shall order the defendant into the custody of the sheriff, who shall deliver him, together with the record of conviction, to the jailor, in whose custody he shall remain in 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 or costs defaults in payment, the court may order the defendant to show cause why he should not be committed to jail. If the court finds that the defendant's default is willful or is due to a failure on defendant's part to make a good faith effort to obtain the funds required for the payment, the court may order him 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 rate provided by W.S. 6-10-105, and may earn additional credits against his fine or costs 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 be added to and made a part of the sentence in any felony or misdemeanor case if the court determines that the defendant has an ability to pay or that a reasonable 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 a state penal institution, who appeals to the supreme court, may file, in the court in which that person was convicted, a petition requesting that the person be furnished with a stenographic transcript of the proceedings at that person's trial. The petition shall be verified by the petitioner and shall state facts showing that at the time of conviction and at the time of filing the petition that person was without financial means to pay for the transcript. If the judge who imposed sentence, or any other judge of the court, finds that the defendant is without financial means with which to obtain the transcript of the proceedings at trial, the judge shall order the reporter to transcribe an original and copy of the reporter's notes. The original of the transcript shall be filed with the clerk and the copy shall be delivered to the defendant without charge. The reporter's fees for preparation of the transcript shall be the same as those prescribed in W.S. 5-3-410, and shall be paid by the county in 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 of guilty or nolo contendere to any charge which may result in the disqualification of the defendant to possess firearms pursuant to the provisions of 18 U.S.C. 922(g)(1), (9) and 924(a)(2) or other federal law unless the defendant was advised in open court by the judge:

 

(i) Of the collateral consequences that may arise from that conviction 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 the armed forces, hunting guide, security guard or engaged in any other profession or occupation requiring the carrying or possession of a firearm, that he may now, or in the future, lose the right to engage in that profession or occupation should he be convicted.

 

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