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EVIDENCE
TABLE OF CONTENTS
CHAPTER ONE
GENERAL PROVISIONS
101 Scope
102 Purpose and
Construction
103 Rulings on
Evidence
104 Preliminary
Questions
105 Limited
Admissibility
106 Remainder or
Related Writings or Recorded Statements
CHAPTER TWO
JUDICIAL NOTICE
201 Judicial
Notice of Adjudicative Facts
CHAPTER THREE
PRESUMPTIONS
301 Presumptions
in General in Civil Actions and Proceedings
CHAPTER FOUR
RELEVANCY AND ITS LIMITS
401 Definition of
"Relevant Evidence"
402 Relevant
Evidence Generally Admissible Irrelevant Evidence Inadmissible
403 Exclusion of
Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time
404 Character
Evidence Not Admissible to Prove Conduct; Exceptions; Other Crimes
405 Methods of
Proving Character
406 Habit;
Routine Practice
407 Subsequent
Remedial Measures
408 Compromise
and Offers to Compromise
409 Payment of
Medical and Similar Expenses
410
Inadmissibility of Pleas, Offers of Pleas, and Related Statements
411 Liability
Insurance
CHAPTER FIVE
PRIVILEGES
501 Privileges
Recognized Only as Provided
502 Lawyer-Client
Privilege
503 Physician and
Psychotherapist-Patient Privilege
504 Husband and
Wife Privilege
505 Religious
Privilege
506 Political
Vote
507 Trade Secrets
508 Secrets of
the Tribal Government and Other Official Information: Governmental Privileges
509 Identity of
Informer
510 Waiver of
Privilege by Voluntary Disclosure
511 Privileged
Matter Disclosed Under Compulsion or without Opportunity to Claim Privilege.
512 Comment Upon
and Inference From Claim of Privilege; Instruction
CHAPTER SIX
WITNESSES
601 General Rules
of Competency
602 Lack of
Personal Knowledge
603 Oath or
Affirmation
604 Interpreters
606 Competency of
Juror as Witness
607 Who May
Impeach
608 Evidence of
Character and Conduct of Witness
609 Impeachment
by Evidence of Conviction of Crime
610 Religious
Beliefs or Opinions
611 Mode and
Order of Interrogation and Presentation
612 Writing Used
to Refresh Memory
613 Prior
Statements of Witnesses
614 Calling and
Interrogation of Witnesses by Court
615 Exclusion of
Witnesses
CHAPTER SEVEN
OPINIONS AND EXPERT TESTIMONY
701 Opinion
Testimony by Lay Witnesses
702 Testimony by
Experts
703 Bases of
Opinion Testimony by Experts
704 Opinion on
Ultimate Issue
705 Disclosure of
Facts or Data Underlying Expert Opinion
705 Court
Appointed Experts
CHAPTER EIGHT
HEARSAY
801 Definitions
802 Hearsay Rule
803 Hearsay
Exceptions; Availability of Declarant Immaterial
804 Hearsay
Exceptions; Declarant Unavailable
805 Hearsay
Within Hearsay
806 Attacking and
Supporting Credibility of Declarant
CHAPTER NINE
AUTHENTICATION AND IDENTIFICATION
901 Requirement
of Authentication or Identification
902
Self-Authentication
903 Subscribing
Witness' Testimony Unnecessary
CHAPTER TEN
CONTENTS OF WRITING, RECORDINGS, AND PHOTOGRAPHS
1001 Definitions
1002 Requirement
1003
Admissibility
1004
Admissibility
1005 Public
Records
1006 Summaries
1007 Testimony
or
1008 Functions
of Court and Jury
CHAPTER ELEVEN
MISCELLANEOUS RULES
1101
Applicability of Rules
1102 Amendments
1103 Title
CHAPTER ONE
GENERAL PROVISIONS
Section 101. Scope
This Title governs
evidentiary questions in all proceedings in the Courts of the Tribe, whether
civil, criminal, juvenile, or otherwise except as may be otherwise specifically
provided by Tribal law.
Section 102. Purpose and Construction
This Title shall be
constructed to secure fairness in administration, elimination of unjustifiable
expense and delay, and promotion of growth and development of the law of
evidence to the end that the truth may be ascertained and proceedings justly
determined.
Section 103. Rulings on Evidence
(a) Effect of
erroneous ruling. Error may not be predicated, nor a judgment reversed or
modified, upon a ruling which admits or excludes evidence unless a substantial
right of the party is affected, and:
(1) Objection. In case the ruling is one admitting evidence, a timely
objection or motion to strike appears of record, stating the specific ground
of objection, if the specific ground was not apparent from the context; or
(2) Offer of proof. In case the ruling is one excluding evidence, the
substance of the evidence was made known to the court by offer of proof, or
was apparent from the context within which questions were asked.
(b) Record of offer
and ruling. The court may add any other or further statement which shows the
character of the evidence, the form in which it was offered, the objection made,
and the ruling thereon. It may direct the making of an offer in question and
answer form.
(c) Hearing of jury. In
jury cases, proceedings shall be conducted, to the extent practicable, so as to
prevent inadmissible evidence from being suggested to the jury by any means,
such as making statements or offers of proof or asking questions in the hearing
of the jury. Questions on evidentiary matters known to be in issue prior to
trial may be determined by a hearing prior to trial, and the matter does not
have to be raised at the trial by the party whose evidence is ruled inadmissible
in order to preserve the error so long as the error is apparent from the
transcript of the hearing. Questions which arise concerning the admissibility of
evidence during the trial may be resolved in open Court, if practicable, at a
hearing at the bench out of the hearing of the jury, if practicable, or a recess
may be taken and a hearing held upon the admissibility of the evidence at issue.
(d) Plain error. Nothing
in this Section precludes taking notice of plain errors affecting substantial
rights although they were not brought to the attention of the court.
Section 104. Preliminary Questions
(a) Questions of
admissibility generally. Preliminary questions concerning the qualification
of a person to be a witness, the existence of a privilege, or the admissibility
of evidence shall be determined by the court, subject to the provisions of
subdivision (b). In making its determination it is not bound by this Title
except those provisions with respect to privileges.
(b) Relevancy
conditioned on fact. When the relevancy of evidence depends upon the
fulfillment of a condition of fact, the court shall admit it upon, or may admit
it subject to, the introduction of evidence sufficient to support a finding of
the fulfillment of the condition.
(c) Hearing of jury. Hearings
on the admissibility of confessions in a criminal case shall in all cases be
conducted out of the hearing of the jury. Hearings on other preliminary matters
shall be so conducted when the interests of justice require or, when an accused
in a criminal case is a witness, if he so requests.
(d) Testimony by
accused. The accused in a criminal case does not, by testifying upon a
preliminary matter, or other matter which would be heard outside the hearing of
the jury, if any, subject himself to cross-examination as to other issues in the
case. The accused in a criminal case waives his right against self-incrimination
as to all issues in the case by testifying upon any fact pertaining to any
element of the charge against him during the actual trial of the case before the
jury or other finder of fact.
(e) Weight and
credibility. This Section does not limit the right of a party to introduce
before the jury evidence relevant to weight or credibility.
Section 105. Limited Admissibility
When evidence which is
admissible as to one party or for one purpose but not admissible as to another
party or for another purpose is admitted, the court, upon request, shall
restrict the evidence to its proper scope and instruct the jury accordingly.
Section 106. Remainder or Related Writings or Recorded
Statements
When a writing or
recorded statement or part thereof is introduced by a party, an adverse party
may require him at that time to introduce any other part or any other writing or
recorded statement which ought in fairness to be considered contemporaneously
with it.
CHAPTER TWO
JUDICIAL NOTICE
Section 201. Judicial Notice of Adjudicative Facts
(a) Scope of Chapter. This
Chapter governs only judicial notice of adjudicative facts.
(b) Kinds of facts. A
judicially noticed fact must be one not subject to reasonable dispute in that it
is either
(1) generally known
within the territorial jurisdiction of the Court, or,
(2) capable of accurate
and ready determination by resort to sources whose accuracy cannot reasonably
be questioned.
(c) When
discretionary. The Courts may take judicial notice, whether requested or
not.
(d) When mandatory.
The Courts shall take judicial notice if requested by a party and supplied with
the necessary information, or when required to do so by Tribal law.
(e) Opportunity to be
heard. A party is entitled upon timely request to an opportunity to be heard
as to the propriety of taking judicial notice and the tenor of the matter
noticed. In the absence of prior notification, the request may be made after
judicial notice has been taken.
(f) Time of taking
notice. Judicial notice may be taken at any stage of the proceeding.
(g) Instructing jury. In
a civil action or proceeding, the court shall instruct the jury to accept as
conclusive any fact judicially noticed. In a criminal case, the court shall
instruct the jury that it may, but is not required to, accept as conclusive any
fact judicially noticed.
CHAPTER THREE
PRESUMPTIONS
Section 301. Presumptions in General in Civil Actions
and Proceedings
In all civil and criminal
actions and proceedings, a presumption imposes upon the party against whom it is
directed the burden of going forward with evidence to rebut or meet the
presumption, but does not shift the risk of non- persuasion, which remains upon
the party on whom it was originally cast.
CHAPTER FOUR
RELEVANCY AND ITS LIMITS
Section 401. Definition of "Relevant Evidence"
"Relevant
evidence" means evidence having any tendency to make the existence of any
fact that is of consequence to the determination of the action more probable or
less probable than it would be without the evidence.
Section 402. Relevant Evidence Generally Admissible
Irrelevant Evidence Inadmissible
All relevant evidence is
admissible, except as otherwise provided by the Constitution of the Tribe, by
Act or Ordinance of the Executive Committee of the Tribe, by this Title, or by
other rules prescribed by the Supreme Court of the Tribe pursuant to statutory
authority. Evidence which is not re]evant is not admissible.
Section 403. Exclusion of Relevant Evidence on Grounds
of Prejudice, Confusion, or Waste of Time
Although relevant,
evidence may be excluded if its probative value is substantially outweighed by
the danger of unfair prejudice, confusion of the issues, or misleading the jury,
or by considerations of undue delay, waste of time, or needless presentation of
cumulative evidence, or if it is inadmissible pursuant to some Section of this
Title.
Section 404. Character Evidence Not Admissible to Prove
Conduct; Exceptions; Other Crimes
(a) Character evidence
generally. Evidence of a person's character or a trait of his character is
not admissible for the purpose of proving that he acted in conformity therewith
on a particular occasion, except;
(1) Character of
accused. Evidence of a pertinent tait of his character offered by an
accused, or after the accused has offered such character evidence;
(2) Character of
victim. Evidence of a pertinent trait of character of the victim of the
crime offered by an accused, or by the prosecution to rebut the same after the
accused has offered such character evidence, or evidence of a character trait
of peacefulness of the victim offered by the prosecution in a homicide case to
rebut evidence that the victim was the first aggressor;
(3) Character of
witness. Evidence of the character of a witness, as provided in Sections
607, 608, and 609 of this Title.
(4) Other crimes,
wrongs, or acts. Evidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to show that he acted
in conformity therewith. It may, however, be admissible for other purposes,
such as proof of motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident.
Section 405. Methods of Proving Character
(a) Reputation or
opinion. In all cases in which evidence of character or a trait of character
of a person is admissible, proof may be made by testimony as to reputation or by
testimony in the form of an opinion. On cross-examination, inquiry is allowable
into relevant specific instances of conduct.
(b) Specific instances
of conduct. In cases in which character or a trait of character of a person
is an essential element of a charge, claim, or defense, proof may also be made
of specific instances of his conduct.
Section 406. Habit; Routine Practice
Evidence of the habit of
an person or of the routine practice of an organization, whether corroborated or
not and regardless of the presence of eyewitnesses, is relevant to prove that
the conduct of the person or organization on a particular occasion was in
conformity with the habit or routine practice.
Section 407. Subsequent Remedial Measures
When after an event,
measures are taken which, if taken previously, would have made the event less
likely to occur, evidence of the subsequent measures is not admissible to prove
negligence or culpable conduct in connection with the event, in order to
encourage additional safety measures to be taken for the protection of the
public whether or not the previous measures were sufficient to prevent a finding
of negligent or culpable conduct. This Section does not require the exclusion of
evidence of subsequent measures when offered for another purpose, such as
proving ownership, control, or feasibility of precautionary measures, if
controverted, or impeachment.
Section 408. Compromise and Offers to Compromise
In order to encourage the
non-judicial settlement of disputes, evidence of:
(a) furnishing or
offering or promising to furnish, or
(b) accepting or offering
or promising to accept, a valuable consideration in compromising or attempting
to compromise a claim which was disputed as to either validity or amount, is not
admissible to prove liability for or invalidity of the claim or its amount.
Evidence of conduct or statements made in compromise negotiations is likewise
not admissible. This Section does not require the exclusion of any evidence
otherwise discoverable merely because it is presented in the course of
compromise negotiations. This Section also does not require exclusion when the
evidence is offered for another purpose, such as proving bias or prejudice of a
witness, negativing a contention of undue delay, or proving an effort to
obstruct a criminal investigation or prosecution.
Section 409. Payment of Medical and Similar Expenses
In order to encourage
non-judicial settlement of disputes and to encourage persons to assist one
another for their joint benefit, evidence of furnishing or offering or promising
to pay, or the payment of medical, hospital, or similar expenses occasioned by
an injury is not admissible to prove liability for the injury. Evidence of
payment of such charges may be introduced by the person making such payment for
the purpose of reducing a judgment for damages.
Section 410. Inadmissibility of Pleas, Offers of Pleas,
and Related Statements
(a) Except as otherwise
provided in this Section, evidence of a plea of guilty, later withdrawn, or a
plea of nolo contendere, or of any offer to plead guilty or nob contendere to
the crime charged or any other crime, or of statements made in connection with,
and relevant to, any of the foregoing pleas or offers, is not admissible in any
civil or criminal proceeding against the person who made the plea or offer.
However, evidence of a statement made in connection with, and relevant to, a
plea of guilty, later withdrawn, a plea of nob contendere, or an offer to plead
guilty or nob contendere to the crime charged or any other crime, is admissible
in a criminal proceeding for perjury or false statement if the statement was
made by the defendant under oath, on the record, and in the presence of counsel.
(b) A plea of guilty
which has not been withdrawn, and statements made in connection therewith are
admissible if relevant in any criminal or civil proceeding.
Section 411. Liability Insurance
(a) Evidence that a
person was or was not insured against liability is not admissible upon the issue
whether he acted negligently or otherwise wrongfully. This Section does not
require the exclusion of evidence of insurance against liability when offered
for another purpose, such as proof of agency, ownership, or control, or bias or
prejudice of a witness.
(b) In the sound
discretion of the Tribal District Court, and subject to any exclusionary rule
promulgated by Supreme Court of the Tribe, evidence that a person was or was not
insured against liability and the limits of coverage and other relevant factors
is admissible in a bifurcated jury or judge trial sounding in tort, or
otherwise, in the second phase of the trial upon the issue of the amount of
actual and consequential damages to be awarded, after liability has been
determined in the first phase of the trial, as provided in the Civil Procedure
Act.
CHAPTER FIVE
PRIVILEGES
Section 501. Privileges Recognized Only as Provided
Except as otherwise
provided by the Tribal Constitution or Tribal Statute, including this Title, or
rules promulgated by the Supreme Court of the Tribe pursuant to legislative
authority, or as may be required by federal law, no person has a privilege to:
(a) refuse to be a
witness;
(b) refuse to disclose
any matter;
(c) refuse to produce any
object or writing; or
(d) prevent another from
being a witness or disclosing any matter or producing any object or writing.
Section 502. Lawyer-Client Privilege
(a) Definitions.
As used in this Section:
(1) A
"Client" is a person, public officer, or corporation, association,
or other organization or entity, either public or private, who is rendered
professional legal services by a lawyer, or who consults a lawyer with a view
to obtaining professional legal services from him.
(2) A representative of
the client is one having authority to obtain professional legal services, or
to act on advice rendered pursuant thereto, on behalf of the client.
(3) A
"lawyer" is a person authorized, or reasonably believed by the
client to be authorized, to engage in the practice of law by any Indian tribe,
or state, or nation.
(4) A
"representative of the lawyer" is one employed by the lawyer to
assist the lawyer in the rendition of professional legal services.
(5) A communication is
"confidential" if not intended to be disclosed to third persons
other than those to whom disclosure is made in furtherance of the retention of
professional legal services to the client or those reasonable necessary for
the transmission of the communication, including close relatives who assist
the client in obtaining legal counsel and whom the client requests to be
present during discussions with the lawyer for the purpose of obtaining
representation.
(b) General rule of
privilege. A client has a privilege to refuse to disclose and to prevent any
other person from disclosing confidential communications made for the purpose of
facilitating the rendition of professional legal services to the client
(1) between himself or
his representative and his lawyer or his lawyer's representative,
(2) between his lawyer
and the lawyer's representative,
(3) by him or his
representative or his lawyer or a representative of the lawyer to a lawyer or
a representative of a lawyer representing another party in a pending action
and concerning a matter of common interest therein
(4) between
representatives of the client or between the client and a representative of
the client, or (5) among lawyers and their representatives representing the
same client.
(c) Who may claim the
privilege. The privilege may be claimed by the client, his guardian or
conservator or close relative who assists in obtaining legal representation, the
personal representative of a deceased client, or the successor, trustee, or
similar representative of a corporation, association, other organization,
whether or not in existence. The person who was the lawyer or the lawyer's
representative at the time of the communication is presumed to have authority to
claim the privilege on behalf of the client.
(d) Exceptions.
There is no privilege under this Section:
(1) Furtherance of
crime or fraud. If the services of the lawyer were sought or obtained to
enable or aid anyone to commit or plan to commit what the client knew or
reasonably should have known to be a crime or fraud;
(2) Claimants
through same deceased client. As to a communication relevant to an issue
between parties who claim through the same deceased client, regardless of
whether the claims are by testate or intestate succession or by intervivos
transaction;
(3) Breach of duty
by a lawyer or client. As to a communication relevant to an issue of
breach of duty by the lawyer to his client or by the client to his lawyer;
(4) Document
attested by a lawyer. As to a communication relevant to an issue
concerning an attested document to which the lawyer is an attesting witness;
(5) Joint clients. As
to a communication relevant to a matter of common interest between or among
two or more clients if the communication was made by any of them to a lawyer
retained or consulted in common, when offered in an action between or among
any of the clients or;
(6) Public officer
or agency. As to a communication between a public officer or agency and
its lawyers unless the communication concerns a pending or contemplated
investigation, claim, or action and the court determines that disclosure will
seriously impair the ability of the public officer or agency to process the
claim or conduct a pending investigation, litigation, or proceeding in the
public interest. Communications of the Tribal Attorney to the Tribe are not
within this exception unless such communications have been released for public
information by the appropriate Tribal officials.
Section 503. Physician and Psychotherapist - Patient
Privilege
(a) Definitions.
As used in this Section:
(1) A 'tpatient"
is a person who consults or is examined or interviewed by a physician or
psychotherapist.
(2) A
"physician" is a person authorized to practice medicine or the
healing arts by any Indian tribe, or state, or nation, or reasonably believed
by the patient so to be.
(3) A
"psychotherapist" is:
(i) a person
authorized to practice medicine or the healing arts by any Indian tribe, or
state, or nation, or reasonably believed by the patient so to be, while
engaged in the diagnosis or treatment of a mental or emotional condition,
including alcohol or drug addiction, or
(ii) a person
licensed or certified as a psychologist under the laws of any Indian tribe,
or state, or nation, while similarly engaged.
(4) A communication is
"confidential" if not intended to be disclosed to third persons,
except persons present to further the interest of the patient in the
consultation, examination, or interview, persons reasonably necessary for the
transmission of the communication, or persons who are participating in the
diagnosis and treatment under the direction of the physician or
psychotherapist, including members of the patient's family.
(b) General rule of
privilege. A patient has a privilege to refuse to disclose and to prevent
any other person from disclosing confidential communications made for the
purpose of diagnosis or treatment of his physical, mental or emotional
condition, including alcohol or drug addiction, among himself, his physical or
psychotherapist, and persons who are participating in the diagnosis or treatment
under the direction of the physician or psychotherapist, including members of
the patient's family.
(c) Who may claim the
privilege. The privilege may be claimed by the patient, his guardian or
conservator, or the personal representative of a deceased patient. The person
who was the physician or psychotherapist at the time of the communication, and
any other persons directly involved in treatment sessions, are presumed to have
authority to claim the privilege but only on behalf of the patient.
(d) Exceptions.
(1) Proceeding for
hospitalization. There is no privilege under this Section for
communications relevant to an issue in proceedings to hospitalize the patient
for mental illness, if the physician or psychotherapist in the course of
diagnosis or treatment has determined that the patient is in need of
hospitalization.
(2) Examination by
order of court. If the court orders an examination of the physical, mental
or emotional condition of a patient, whether a party or a witness,
communications made in the course thereof are not privileged under this
Section with respect to the particular purpose for which the examination is
ordered unless the court orders otherwise.
(3) Condition an
element of claim or defense. There is no privilege under this Section as
to a communication relevant to an issue of the physical, mental or emotional
condition of the patient in any proceeding in which he relies upon the
condition as an element of his claim or defense or, after the patient's death,
in any proceeding in which any party relies upon the condition as an element
of his claim or defense.
Section 504. Husband and Wife Privilege
(a) Definition. A
communication is confidential if it is made privately by any person to his or
her spouse and is not intended for disclosure to any other person.
(b) General rule of
privilege. An accused in a criminal proceeding has a privilege to prevent
his spouse from testifying as to any confidential communication between the
accused and the spouse.
(c) Exceptions.
There is no privilege under this Section in a proceeding for legal separate or
divorce between the parties when the communication is relevant to the issues in
the action for separate maintenance or divorce, or in which one spouse is
charged with a crime against the person or property of:
(1) the other,
(2) a child of either,
(3) a person residing
in the household of either, or
(4) a third person
committed in the course of committing a crime against any of them.
Except in an action brought by the Tribe to protect a child subject to abuse,
neglect, or other cause which is sufficient to maintain a juvenile court action,
testimony received pursuant to this exception in an action for divorce or legal
separate between the husband and wife may not be used or referred to in any
other proceeding between either the husband or wife and third persons.
Section 505. Religious Privilege
(a) Definitions.
As used in this Section:
(1) A
"clergyman" is a minister, priest, rabbi, accredited Christian
Science Practitioner, Native American Church Roadman, properly authorized
traditional band or society headsman or firekeeper or other similar
functionary of a religious organization of a recognized active traditional
Tribal religion, or an individual reasonably believed so to be by the person
consulting him.
(2) A communication is
"confidential" if made privately and not intended for further
disclosure except to other persons present or to other persons to whom
disclosure would be privileged under this Title if the disclosure had been
made directly to such other person in furtherance of the purpose of the
communication.
(b) General rule of
privilege. A person has a privilege to refuse to disclose and to prevent
another from disclosing a confidential communication by the person to a
clergyman in his professional character as spiritual adviser.
(c) Who may claim the
privilege. The privilege may be claimed by the person, by his guardian or
conservator, or by his personal representative if he is deceased. The person who
was the clergyman at the time of the communication, is presumed to have
authority to claim the privilege but only on behalf of the communicant.
Section 506. Political Vote
(a) General rule of
privilege. Every person has a privilege to refuse to disclose the tenor of
his vote at any political election conducted by secret ball ot.
(b) Exceptions. This
privilege does not apply if the court finds that the vote was cast illegally or
determines that the disclosure should be compelled pursuant to the election laws
of the Tribe.
Section 507. Trade Secrets
A person has a privilege,
which may be claimed by him or his agent or employee, to refuse to disclose and
to prevent other persons from disclosing a trade secret owned by him, if the
allowance of the privilege will not tend to conceal fraud or otherwise work
injustice, If disclosure is directed, the court shall take such protective
measures as the interest of the holder of the privilege and of the parties and
the interests of justice require.
Section 508. Secrets of the Tribe Government and Other
Official Information: Governmental Privileges
(a) If the law of the
United States creates a governmental privilege that the courts of this Tribe
must recognize under the Constitution and statutes of the United States, the
privilege may be claimed as provided by the law of the United States.
(b) No other special
governmental privilege is recognized except as created by the Constitution or
statutes of the Tribe, including this Title.
(c) Privileges
Recognized. The following governmental privileges are recognized:
(1) Elected members of
the Tribal Legislature have a privilege against disclosure of their mental
processes and reasoning in the casting of any vote by them at a duly
constituted meeting of that body, except in cases where it is alleged that
unlawful influence or bribery or attempted bribery was involved in that vote.
This privilege may be claimed only by the member and is waived if the member
testifies as to such matters.
(2) Justices, Judges,
and Magistrates have a privilege against disclosure of their mental processes
and reasoning in the determination of any matter before them in any proceeding
collateral to that matter, except in a collateral proceeding where it is
alleged that unlawful influence or bribery or attempted bribery was involved
in the underlying matter. The explanation and reasons for the decision of
Judicial Officers which should appear on the record shall be sufficient. This
Section shall not preclude the Supreme Court of the Tribe from remanding an
action to a Judge or Magistrate for further findings of fact or conclusions of
law in order to obtain an adequate record for review or to determine all
issues necessary to a decision in a case.
(3) Tribal Officers
charged with the institution of legal proceedings before any agency of the
Tribe or the Tribal Courts to enforce Tribal law have a privilege against
disclosure of their mental processes and reasoning in the determination of any
matter brought before them for a decision as to whether or not to institute
such legal proceedings.
(d) Effect of
sustaining claim. If a claim of governmental privilege is sustained and it
appears that a party is thereby deprived of material evidence, the court shall
make any further orders the interests of justice require, including striking the
testimony of a witness, declaring a mistrial, finding against the Government
upon an issue as to which the evidence is relevant, or dismissing the action.
Section 509. Identity of Informer
(a) Rule of privilege.
The Tribe, the United States, or a state, or subdivision thereof having police
powers have a privilege to refuse to disclose the identify of a person who has
furnished information relating to or assisting in an investigation of a possible
violation of a law to a law enforcement officer or member of a legislative
committee or its staff conducting an investigation.
(b) Who may claim.
The privilege may be claimed by an appropriate representative of the public
entity to which the information was furnished.
(c) Exceptions:
(1) Voluntary
disclosure; informer a witness. No privilege exists under this Section if
the identity of the informer or his interest in the subject matter of his
communication has been disclosed to those who would have cause to resent or be
adversely affected by the communication by a holder of the privilege or by the
informer's own action, or if the informer appears as a witness for the
government.
(2) Testimony on
relevant issue. If it appears in the case that an informer may be able to
give testimony relevant to any issue in a criminal case or to a fair
determination of a material issue on the merits in a civil case to which a
public entity is a party, and the informed public entity invokes the
privilege, the court shall give the public entity an opportunity to show in
camera facts relevant to determining whether the informer can, in fact, supply
that testimony. The showing will ordinarily be in the form of affidavits, but
the court may direct that testimony be taken if it finds that the matter
cannot be resolved satisfactorily upon affidavit. If the courts finds that
there is a reasonable probability that the informer can give the testimony,
and the public entity elects not to disclose his identity, in criminal cases
the court on motion of the defendant or on its own motion shall grant
appropriate relief, which may include one or more of the following: requiring
the prosecuting attorney to comply with a defense request for relevant
information, granting the defendant additional time or a continuance,
relieving the defendant from making disclosures otherwise required of him,
prohibiting the prosecuting attorney from introducing specific evidence, and
dismissing charges. In civil cases, the court may make any order the interests
of justice require. Evidence submitted to the court in camera
shall be sealed and preserved to be made available to the Supreme Court in the
event of an appeal, and the contents shall ndt otherwise be revealed without
consent of the informed public entity. All counsel and parties are permitted
to be present at every stage of proceedings under this subdivision except a
showing in camera at which no counsel or party shall be permitted to be
present.
Section 510. Waiver of Privilege by Voluntary Disclosure
A person upon whom this
Chapter confers a privilege against disclosure waives the privilege if he or his
predecessor while holder of the privilege voluntarily discloses or consents to
disclosure of any significant part of the privileged matter. This Section does
not apply if the disclosure itself is privileged.
Section 511. Privileged Matter Disclosed Under
Compulsion or without Opportunity to Claim Privilege.
A claim of privilege is
not defeated by a disclosure which was (1) compelled erroneously or (2) made
without opportunity to claim the privilege.
Section 512. Comment Upon and Inference From Claim of
Privilege; Instruction
(a) Comment or
inference not permitted. The claim of a privilege, whether in the present
proceeding or upon a prior occasion, is not a proper subject of comment by judge
or counsel. No inference may be drawn therefrom.
(b) Claiming privilege
without knowledge of jury. In jury cases, proceedings shall be conducted, to
the extent practicable, so as to facilitate the making of claims of privilege
without the knowledge of the jury.
(c) Jury instruction. Upon
request, any party against whom the jury might draw an adverse inference from a
claim of privilege is entitled to an instruction that no inference may be drawn
therefrom.
CHAPTER SIX
WITNESSES
Section 601. General Rules of Competency
Every person is competent
to be a witness except as otherwise provided in this Title or other relevant
Tribal law.
Section 602. Lack of Personal Knowledge
A witness may not testify
to a matter unless evidence is introduced sufficient to support a finding that
he has personal knowledge of the matter. Evidence to prove personal knowledge
may, but need not, consist of the testimony of the witness himself. This Section
is subject to the provisions of Section 703, relating to opinion testimony by
expert witnesses.
Section 603. Oath or Affirmation
Before testifying, every
witness shall be required to declare that he will testify truthfully, by oath or
affirmation administered in a form calculated to awaken his conscience and
impress his mind with his duty to do so.
Section 604. Interpreters
An interpreter is subject
to the provisions of this Title relating to qualification as an expert and the
administration of an oath or affirmation that he will make a true translation.
Section 605. Competency of Judge as Witness
The judge presiding at
the trial may not testify in that trial as a witness. No objection need be made
in order to preserve the point.
Section 606. Competency of Juror as Witness
(a) At the trial.
A member of the jury may not testify as a witness before that jury in the trial
of the case in which he is sitting as a juror. If he is called to testify the
opposing party shall be afforded an opportunity to object out of the presence of
the jury.
(b) Inquiry into
validity of verdict or indictment. Upon an inquiry into the validity of a
verdict or indictment, a juror may not testify as to any matter or statement
occurring during the course of the jury's deliberations or to the effect of
anything upon his or any other juror's mind or emotions as influencing him to
assent to or dissent from the verdict or concerning his mental processes in
connection therewith, except that a juror may testify on the question whether
extraneous prejudicial information was improperly brought to the jury's
attention whether the jury determined the verdict, amount of damages, sentence
or other matter relevant to a determination of the issues in the case by
flipping a coin or other method determined purely by chance, or whether any
outside influence was improperly brought to bear upon any juror. Nor may his
affidavit or evidence of any statement by him concerning a matter about which he
would be precluded from testifying be received for these purposes.
Section 607. Who May Impeach
The credibility of a
witness may be attacked by any party, including the party calling him.
Section 608. Evidence of Character and Conduct of
Witness
(a) Opinion and
reputation evidence of character. The credibility of a witness may be
attacked or supported by evidence in the form of opinion or reputation, but
subject to these limitations:
(1) the evidence may
refer only to character for truthfulness or untruthfulness, and
(2) evidence of
truthful character is admissible only after the character of the witness for
truthfulness has been attacked by opinion or reputation evidence or otherwise.
(b) Specific instances
of conduct. Specific instances of the conduct of a witness, for the purpose
of attacking or supporting his credibility, other than conviction of crime as
provided in Section 609, may not be proved by extrinsic evidence. Specific
instances of conduct may, however, in the discretion of the Court, if probative
of truthfulness or untruthfulness, be inquired into on cross-examination of the
witness:
(1) concerning his
character for truthfulness or untruthfulness, or
(2) concerning the
character for truthfulness or untruthfulness of another witness as to which
character the witness being cross-examined has testified.
(c) Special Rule for
Criminal cases. The giving of testimony, whether by an accused or by any
other witness, does not operate as a waiver of his privilege against
self-incrimination when examined with respect to matters which relate only to
credibility.
Section 609. Impeachment by Evidence of Conviction of
Crime
(a) General Rule.
For the purpose of attacking the credibility of a witness, evidence that he has
been convicted of a crime shall be admitted if elicited from him or established
by public record during cross-examination but only if the crime
(1) was punishable by
death or imprisonment in excess of one year under a federal or state law,
under which he was convicted, and the Court determines that the probative
value of admitting this evidence outweighs its prejudicial effect to the
defendant (if it is the defendant in a criminal case whose credibility is
being questioned), or
(2) involved dishonesty
or false statement, regardless of the punishment or jurisdiction involved or
(3) was punishable by
banishment or imprisonment for six months, or is otherwise classified as a
serious offense under the laws of an Indian Tribe in whose Courts the
conviction was obtained.
(b) Time limit.
Evidence of a conviction under this Section is not admissible if a period of
more than ten years has lapsed since the date of the conviction or of the
release of the witness from the confinement or other punishment imposed for that
conviction, whichever is the later date, unless the Court determines, in the
interests of justice, that the probative value of the conviction supported by
specific facts and circumstances substantially outweighs its prejudicial effect.
However, evidence of a conviction more that 10 years old as calculated herein,
is not admissible unless the proponent gives to the adverse party sufficient
advance written notice of intent to use such evidence to provide the adverse
party with a fair opportunity to contest the use of such evidence. Subject to
subsection (c) of this Section and the discretion of the Court, such convictions
are admissible if other admissible convictions not ten years old as calculated
herein have occurred since the conviction in question.
(c) Effect of pardon,
annulment, or certificate of rehabilitation.
Evidence of a conviction is not admissible under this Section if:
(1) the conviction has
been the subject of a pardon, annulment, certificate of rehabilitation, or
other equivalent procedure based on a finding of the rehabilitation of the
person convicted, and that person has not been convicted of a subsequent crime
which would be admissible under subparagraph (a) above, or
(2) the conviction has
been the subject of a pardon, annulment, or other equivalent procedure based
on a finding of innocence.
(d) Juvenile
adjudications. Evidence of juvenile adjudications is generally not
admissible under this Section. The Court may, however, in a criminal case allow
evidence of a juvenile adjudication of a witness, other than the accused, if
conviction of the offense would be admissible to attack the credibility of an
adult and the Court is satisfied that admission in evidence is necessary for a
fair determination of the issue of guilt or innocence of the accused.
(e) Pendency of appeaL
The pendency of an appeal therefrom does not render evidence of a conviction
inadmissible. Evidence of the pendency of an appeal is admissible when evidence
of the underlying convictions in the case has been introduced.
Section 610. Religious Beliefs or Opinions
Evidence of the beliefs
or opinions of a witness on matters of religion is not admissible for the
purpose of showing that by reasons of their nature his credibility is impaired
or enhanced.
Section 611. Mode and Order of Interrogation and
Presentation
(a) Control by Court.
The Court shall exercise reasonable control over the mode and order of
interrogating witnesses and presenting evidence so as to:
(1) make the
interrogation and presentation effective for the ascertainment of the truth,
(2) avoid needless
consumption of time, and
(3) protect witnesses
from unnecessary harassment or undue embarrassment.
(b) Scope of
cross-examination. Cross-examination should be limited to the subject matter
of the direct examination and matters affecting the credibility of the witness.
The Court may, in the exercise of discretion, permit inquiry into additional
matters as if on direct examination.
(c) Leading questions.
A leading question is ordinarily a question which calls for a yes or no answer.
Leading questions should not be used on the direct examination of a witness
except as may be necessary to develop his testimony. Ordinarily leading
questions should be permitted on cross- examination. When a party calls a child
of young age, or other person who may have significant trouble understanding
questions due to age, infirmity, lack of understanding of the English language,
or other cause, a hostile witness, an adverse party, or a witness identified
with an adverse party, interrogation may be by leading questions.
Section 612. Writing Used to Refresh Memory
(a) If a witness uses a
writing to. refresh his memory either while testifying or before testifying, an
adverse party is entitled to have the writing produced at the hearing, to
inspect it, to cross-examine the witness thereon, and to introduce in evidence
those portions which relate to the testimony of the witness.
(b) If it is claimed that
the writing contains matters not related to the subject matter of the testimony
the Court shall examine the writing in camera, exercise any portions not so
related and order delivery of the remainder to the party entitled thereto. Any
portion withheld over objections shall be preserved and made available to the
Supreme Court in the event of an appeal. If a writing is not produced or
delivered pursuant to order of the Court under this Section, the Court shall
make any order justice requires, except that in criminal cases when the
prosecution elects not to comply, the Court may declare a mistrial.
Section 613. Prior Statements of Witnesses
(a) Examining witness
concerning prior statements. In examining a witness concerning a prior statement
made by him, whether written or not, the statement need not be shown nor its
contents disclosed to him at that time, but on request the same shall be shown
or disclosed to opposing counsel.
(b) Extrinsic evidence of
prior inconsistent statements of witness. Extrinsic evidence of a prior
inconsistent statement by a witness is not admissible unless the witness is
afforded in opportunity to explain or deny the same and the opposing party is
afforded an opportunity to interrogate him thereon, or the interests of justice
otherwise require. This provision does not apply to admissions of a party
opponent as defined in Section 801(d)(2).
Section 614. Calling and Interrogation of Witnesses by
Court
(a) Calling by Court. The
Court may, on its own motion or at the suggestion of a party, call witnesses,
and all parties are entitled to cross- examine witnesses thus called.
(b) Interrogation by
Court. The Court may interrogate witnesses, whether called by itself or by a
party.
(c) Objections. Objections
to the calling of witnesses by the Court or to interrogation by it may be made
at the time or at the next available opportunity when the jury is not present.
Ordinarily, the Court should exercise its authority to call or question
witnesses with great restraint in a jury trial.
[History: PUBLIC LAW #SF-85-63, June 21, 1985.]
Section 615. Exclusion of Witnesses
At the request of a party
the Court shall order witnesses excluded so that they cannot hear the testimony
of other witnesses, and it may make the order of its own motion. This request
may be made by a party by requesting that the Court "invoke the rule"
or words of similar import. This rule does not authorize exclusion of
(1) a party who is a
natural person, or
(2) an officer or
employee of a party, designated as its representative by its attorney, when
the party is not a natural person, or
(3) a person whose
presence is shown by a party to be essential to the presentation of his cause.
[History: PUBLIC LAW #SF-85-63, June 21, 1985.]
CHAPTER SEVEN
OPINIONS AND EXPERT TESTIMONY
Section 701. Opinion Testimony by Lay Witnesses
If the witness is not
testifying as an expert, his testimony in the form of opinion or inferences is
limited to those opinions or inferences which are:
(a) rationally based on
the perception of the witness;
(b) helpful to a clear
understanding of his testimony or the determination of a fact in issue; and
(c) upon a subject which
it is presumed that the general public has sufficient knowledge to reach a
reasonable opinion, conclusion, or inference.
Section 702. Testimony by Experts
If scientific, technical,
or other specialized knowledge will assist the trier of fact to understand the
evidence or to determine a fact in issue, a witness qualified as an expert by
knowledge, skill, experience, training, or education, may testify thereto in the
form of an opinion or otherwise.
Section 703. Bases of Opinion Testimony by Experts
The facts or data in the
particular case upon which an expert bases an opinion or inference may be those
perceived by or made known to him at or before the hearing. If of a type
reasonably relied upon by experts in the particular field in forming opinions or
inferences upon the subject, the facts or data need not be admissible in
evidence.
Section 704. Opinion on Ultimate Issue
Testimony in the form of
an opinion or inference otherwise admissible is not objectionable because it
embraces an ultimate issue to be decided by the trier of fact.
Section 705. Disclosure of Facts or Data Underlying
Expert Opinion
The expert may testify in
terms of opinion or inference and give his reasons therefore without prior
disclosure of the underlying facts or data, unless the Court requires otherwise.
The expert may in any event be required to disclose the underlying facts or data
on cross-examination.
Section 706. Court Appointed Experts
(a) Appointment.
The Court may on its own motion or on the motion of any party enter an order to
show cause why expert witnesses should not be appointed, and may request the
parties to submit nominations. The Court may appoint any expert witnesses agreed
upon by the parties, and may appoint expert witnesses of its own selection. An
expert witness shall not be appointed by the Court unless he consents to act. A
witness so appointed shall be informed of his duties by the Court in writing, a
copy of which shall be filed with the clerk, or at a conference in which the
parties shall have opportunity to participate. A witness so appointed shall
advise the parties of his findings, if any; his deposition may be taken by any
party; and he may be called to testify by the Court or any party. He shall be
subject to cross-examination by each party, including a party calling him as a
witness.
(b) Compensation.
Expert witnesses so appointed are entitled to reasonable compensation in
whatever sum the Court may allow. The compensation thus fixed is payable from
the Court fund, said fund to be reimbursed by the parties in such proportion and
at such time as the Court directs, and thereafter charged in like manner as
other costs.
(c) Disclosure of
Appointment. In the exercise of its discretion, the Court may authorize
disclosure to the jury of the fact that the Court appointed the expert witness.
(d) Parties' Experts
of Own Selection. Nothing in this Section limits the parties in calling
expert witnesses of their own selection.
CHAPTER EIGHT
HEARSAY
Section 801. Definitions
The following definitions
apply under this Chapter:
(a) Statement. A
"Statement" is:
(1) an oral or written
assertion or
(2) Non-verbal conduct
of a person, if it is intended by him as an assertion.
(b) Declarant. A
"declarant" is a person who makes a statement.
(c) Hearsay. "Hearsay"
is a statement, other than one made by the declarant while testifying at the
trial or hearing, offered in evidence to prove the truth of the matter asserted.
This Section generally includes affidavits and notarized statements unless made
admissible by some one of these rules.
(d) Statements which
are not hearsay. A statement is not hearsay if-.
(1) Prior statement
by witness. The declarant testifies at the trial or hearing and is subject
to cross-examination concerning the statement, and the statement is:
(i) inconsistent with
his testimony, and was given under oath subject to the penalty of perjury at
a trial, hearing, or other proceeding, or in a deposition, or
(ii) consistent with
his testimony and is offered to rebut an express or implied charge against
him of recent fabrication or improper influence or motive, or
(iii) one of
identification of a person or object made after perceiving him or it; or
(2) Admission by
party-opponent. The statement is offered against a party and is:
(i) his own
statement, in either his individual or a representative capacity or
(ii) a statement of
which he has manifested his adoption or belief in its truth, or
(iii) a statement by
a person authorized by him to make a statement concerning the subject, or
(iv) a statement by
his agent or servant concerning a matter within the scope of his agency or
employment, made during the existence of the relationship, or
(v) a statement by a
co-conspirator of a party during the course and in furtherance of the
conspiracy.
Section 802. Hearsay Rule
Hearsay is not admissible
except as provided by this Title or by other rules prescribed by the Tribal
Supreme Court pursuant to statutory authority or by Act or Ordinance of the
Executive Committee.
Section 803. Hearsay Exceptions; Availability of
Declarant Immaterial
The following are not
excluded by the hearsay rule, even though the declarant is available as a
witness:
(a) Present sense
impression. A statement describing or explaining an event or condition made
while the declarant was perceiving the event or condition, or immediately
thereafter.
(b) Excited utterance.
A statement relating to a startling event or condition made while the declarant
was under the stress of excitement caused by the event or condition.
(c) Then existing
mental, emotional, or physical condition. A statement of the declarant's
then existing state of mind, emotion, sensation, or physical condition (such as
intent, plan, motive, design, mental feeling, pain, and bodily health), but not
including a statement of memory or belief to prove the fact remembered or
believed unless it relates to the execution, revocation, identification, or
terms of declarant's will.
(d) Statements for
purposes of medical diagnosis or treatment. Statements made for purposes of
medical diagnosis or treatment and describing medical history, or past or
present symptoms, pain, or sensations, or the inception or general character of
the cause or external source thereof insofar as reasonably pertinent to
diagnosis or treatment.
(e) Recorded
recollection. A memorandum or record concerning a matter about which a
witness once had knowledge but now has insufficient recollection to enable him
to testify fully and accurately, shown to have been made or adopted by the
witness when the matter was fresh in his memory and to reflect that knowledge
correctly. If admitted, the memorandum or record may be read into evidence but
may not itself be received as an exhibit unless offered by an adverse party.
(f) Records of
regularly conducted activity. A memorandum, report, record, or data
compilation, in any form, concerning acts, events, conditions, opinions, or
diagnoses, made at or near the time by, or from information transmitted by, a
person with knowledge, if kept in the course of a regularly conducted business
activity, and if it was the regular practice of that business activity to make
the memorandum, report, record, or data compilation, all as shown by the
testimony of the custodian or other qualified witness, unless the source of
information or the method or circumstances of preparation indicate lack of
trustworthiness. The term "business" as used in this paragraph
includes business, institution, association, profession, occupation, and calling
of every kind, whether or not conducted for profit.
(g) Absence of entry
in records kept in accordance with the provisions of Subsection (f). Evidence
that a matter is not included in the memoranda reports, records, or data
compilations, in any form, kept in accordance with the provisions of Subsection
(f), to prove the non-occurrence or nonexistence of the matter, if the matter
was of a kind of which a memorandum, report, record, or data compilation was
regularly made and preserved, unless the sources of information or other
circumstances indicate lack of trustworthiness.
(h) Public records and
reports. Records, reports, statements, or data compilations, in any form, of
public offices or agencies, setting forth
(1) the activities of
the office or agency, or
(2) matters observed
pursuant to duty imposed by law as to which matters there was a duty to
report, excluding, however, in criminal cases matters observed by police
officers and other law enforcement personnel, or
(3) in civil actions
and proceedings and against the Government in criminal cases, factual findings
resulting from an investigation made pursuant to authority granted by law,
unless the sources of information or other circumstances indicate lack of
trustworthiness.
(i) Records of vital
statistics. Records or data compilations, in any form, of birth, fetal
deaths, deaths, or marriages, if the report thereof was made to a public office
pursuant to requirements of law.
(j) Absence of public
record or entry. To prove the absence of a record, report, statement, or
data compilation, in any form, was regularly made and preserved by a public
office or agency, evidence in the form of a certification in accordance with
Section 902, or testimony, that diligent search failed to disclose the record,
report, statement, or data compilation, or entry.
(k) Records of
religious organizations. Statements of births, marriages, divorces, deaths,
legitimacy, ancestry, relationship by blood, marriage, or other similar acts of
personal or family history, contained in a regularly kept record of a religious
organization.
(l) Marriage,
baptismal, and similar certificates. Statements of fact contained in a
certificate that the maker performed a marriage or other ceremony or
administered a sacrament, made by a clergyman, public official, or other person
authorized by the rules or practices of a religious organization or by law to
perform the act certified, and purporting to have been issued at the time of the
act or within a reasonable time thereafter.
(m) Family records.
Statements of fact concerning personal or family history contained in family
Bibles, genealogies, charts, engravings on rings, inscriptions on family
portraits, engravings on urns, crypts, or tombstones, or the like.
(n) Records of
documents affecting an interest in property. The record of a document
purporting to establish or affect an interest in property, as proof of the
content of the original recorded document and its execution and delivery by each
person by whom it purports to have been executed, if the record is a record of a
public office and an applicable statute authorizes the recording of documents of
that kind in that office.
(o) Statements in
documents affecting an interest in property. A statement contained in a
document purporting to establish or affect an interest in property if the matter
stated was relevant to the purpose of the document, unless dealings with the
property since the document was made have been inconsistent with the truth of
the statement or the purport of the document.
(p) Statements in
ancient documents. Statements in a document in existence twenty years or
more the authenticity of which is established.
(q) Market reports,
commercial publications. Market quotations, tabulations, lists, directories,
or other published compilations, generally used and relied upon by the public or
by persons in particular occupations.
(r) Learned treatises.
To the extent called to the attention of an expert witness upon
cross-examination, or relied upon by him in direct examination, statements
contained in published treatises, periodicals, or pamphlets on a subject of
history, medicine, or other science or, established as a reliable authority by
the testimony or admission of the witness or by other expert witness or by
judicial notice. If admitted, the statements may be read into evidence but may
not be received as exhibits.
(s) Reputation
concerning personal or family history. Reputation among members of his
family by blood, adoption, or marriage, or among his associates, or in the
community, concerning a person's birth, adoption, marriage, divorce, death,
legitimacy, relationship by blood, adoption, or marriage, ancestry, or other
similar fact of his personal or family history.
(t) Reputation
concerning boundaries or general history. Reputation in a community, arising
before the controversy, as to boundaries of or customs affecting lands in the
community, and reputation as to events of general history important to the Tribe
or community or State or nation in which located.
(u) Reputation as to
character. Reputation of a person's character among his associates or in the
community.
(v) Judgment of
previous conviction. Evidence of a final judgment, entered after a trial or
upon a plea of guilty (but not upon a plea of nob contendere), adjudging a
person guilty of a crime or offense, to prove any fact essential to sustain the
judgment in the criminal case as against persons in any civil case, but not
against the accused in a criminal case. The pendency of an appeal may be shown
but does not affect admissibility.
(w) Other exceptions.
A statement not specifically covered by any of the foregoing exceptions but
having equivalent circumstantial guarantees of trustworthiness, if the Court
determines that
(1) the statement is
offered as evidence of a material fact;
(2) the statement is
more probative on the point for which it is offered that any other evidence
which the proponent can procure through reasonable efforts; and
(3) the general
purposes of this Title and the interests of justice will best be served by
admission of the statement into evidence.
However, a statement may not be admitted under this exception unless the
proponent of it makes known to the adverse party in writing sufficiently in
advance of the trial or hearing to provide the adverse party with a fair
opportunity to prepare to meet it, his intention to offer the statement and the
particulars of it, including the name and address of the declarant.
Section 804. Hearsay Exceptions; Declarant Unavailable
(a) Definition of
unavailability. "Unavailability as a witness" includes situations
in which the declarant:
(1) is exempted by
ruling of the Court on the ground of privilege from testifying concerning the
subject matter of his statement; or
(2) persists in
refusing to testify concerning the subject matter of his statement despite an
order of the Court to do so; or
(3) testifies to a lack
of memory of the subject matter of his statement; or
(4) is unable to be
present or to testify at the hearing because of death or then existing
physical or mental illness or infirmity; or
(5) is absent from the
hearing and the proponent of his statement has been unable to procure his
attendance (or in the case of a hearsay exception under subdivision (b) (2),
(3), or (4), his attendance or testimony) by process or other reasonable
means.
A declarant is not available as a witness if his exemption, refusal, claim of
lack of memory, inability, or absence is due to the procurement or wrongdoing of
the proponent of his statement for the purpose of preventing the witness from
attending or testifying.
(b) Hearsay
exceptions. The following are not excluded by the hearsay rule if the
declarant is unavailable as a witness:
(1) Former
testimony. Testimony given as a witness at another hearing of the same or
a different proceeding, or in a deposition taken in compliance with law in the
course of the same or another proceeding, if the party against whom the
testimony is now offered, or, in a civil action or proceeding, a predecessor
in interest, had an opportunity and similar motive to develop the testimony by
direct, cross, or redirect examination.
(2) Statement under
belief of impending death. In a prosecution for homicide or in a civil
action or proceeding, a statement made by a declarant while believing that his
death was imminent, concerning the cause or circumstances of what he believed
to be his impending death.
(3) Statement
against interest. A statement which was at the time of its making so far
contrary to the declarant's pecuniary or proprietary interest, or so far
tended to subject him to civil or criminal liability, or to render invalid a
claim by him against another, that a reasonable man in his position would not
have made the statement unless he believed it to be true. A statement tending
to expose the declarant to criminal liability and offered to exculpate the
accused is not admissible unless corroborating circumstances clearly indicate
the trustworthiness of the statement.
(4) Statement of
personal or family history.
(i) statement
concerning the declarant's own birth, adoption, marriage, divorce,
legitimacy, relationship by blood, adoption, or marriage, ancestry, or other
similar fact of personal or family history, even though declarant had no
means of acquiring personal knowledge of the matter stated; or
(ii) a statement
concerning the foregoing matters, and death also, of another person, if the
declarant was related to the other by blood, adoption, or marriage or was so
intimately associated with the other's family as to be likely to have
accurate information concerning the matter declared.
(5) Other
exceptions. A statement not specifically covered by any of the foregoing
exceptions but having equivalent circumstantial guarantees of trustworthiness,
if the Court determines that:
(i) the statement is
offered as evidence of a material fact;
(ii) the statement is
more probative on the point for which it is offered than any other evidence
which the proponent can procure through reasonable efforts; and
(iii) the general
purposes of this Title and the interests of justice will best be served by
admission of the statement into evidence. However, a statement may not be
admitted under this exception unless the proponent of it makes known to the
adverse party in writing sufficiently in advance of the trial or hearing to
provide the adverse party with a fair opportunity to prepare to meet it, his
intention to offer the statement and the particulars of it, including the
name and address of the declarant.
Section 805. Hearsay Within Hearsay
Hearsay included within
hearsay is not excluded under the hearsay rule if each part of the combined
statements conforms with an exception to the hearsay rule provided in this
Title.
Section 806. Attacking and Supporting Credibility of
Declarant
When a hearsay statement,
or a statement defined in Section 801(d)(2)(iii), (iv), or (v), has been
admitted in evidence, the credibility of the declarant may be attacked, and if
attacked may be supported, by any evidence which would be admissible for those
purposes if declarant had testified as a witness. Evidence of a statement or
conduct by the declarant at any time, inconsistent with his hearsay statement,
is not subject to any requirement that he be afforded an opportunity to deny or
explain. If the party against whom a hearsay statement has been admitted calls
the declarant as a witness, the party is entitled to examine him on the
statement as if under cross-examination.
CHAPTER NINE
AUTHENTICATION AND IDENTIFICATION
Section 901. Requirement of Authentication or
Identification
(a) General provision.
The requirement of authentication or identification as a condition precedent to
admissibility is satisfied by evidence sufficient to support a finding that the
matter in question is what its proponent claims.
(b) Illustrations. By way
of illustration only, and not by way of limitation, the following are examples
of authentication or identification conforming with the requirements of this
Section:
(1) Testimony of
witness with knowledge. Testimony that a matter is what it is claimed to
be.
(2) Non-expert
opinion on handwriting. Non-expert opinion as to the genuineness of
handwriting, based upon familiarity not acquired for purposes of the
litigation.
(3) Comparison by
trier or expert witness. Comparison by the trier of fact or by expert
witnesses with specimens which have been authenticated.
(4) Distinctive
characteristics and the like. Appearance, contents, substance, internal
patterns, or other distinctive characteristics, taken in conjunction with
circumstances.
(5) Voice
identification. Identification of a voice, whether heard firsthand or
through mechanical or electronic transmission or recording, by opinion based
upon hearing the voice at any time under circumstance connecting it with the
alleged speaker.
(6) Telephone
conversations. Telephone conversations, by evidence that a call was made
to the number assigned at the time by the telephone company to a particular
person or business, if:
(i) in the case of a
persoq, circumstances, including self- identification, show the person
answering to be the one called, or
(ii) in the case of a
business, the call was made to a place of business and the conversation
related to business reasonably transacted over the telephone.
(7) Public records
or reports. Evidence that a writing authorized by law to be recorded or
filed and in fact recorded or filed in a public office, or a purported public
record, report, statement, or data compilation, in any form, is from the
public office where items of this nature are kept.
(8) Ancient document
or data compilation. Evidence that a document or data compilation, in any
form:
(i) is in such
condition as to create no suspicion concerning its authenticity,
(ii) was in a place
where it, if authentic, would be likely to be, and
(iii) has been in
existence 20 years or more at the time it is offered.
(9) Methods provided
by statute or rule. Any method of authentication or identification
provided by Act or Ordinance of the Executive Committee or by other rules
prescribed by the Tribal Supreme Court pursuant to statutory authority.
Section 902. Self-Authentication
Extrinsic evidence of
authenticity as a condition precedent to admissibility is not required with
respect to the following:
(1) Domestic public
documents under seal. A document bearing a seal purporting to be that of
the United States, or of any Indian Tribe, State, District, Commonwealth,
territory, or insular possession thereof, or the Trust Territory of the
Pacific Islands, or of a political subdivision, department, officer, or agency
thereof, and a signature purporting to be an attestation or execution.
(2) Domestic public
documents not under seal. A document purporting to bear the signature in
his official capacity of an officer or employee of any entity included in
paragraph (1) hereof, having no seal, if a public officer having a seal and
having official duties in the district or political subdivision of the officer
or employee certifies under seal that the signer has the official capacity and
that the signature is genuine.
(3) Foreign public
documents. A document purporting to be executed or attested in his
official capacity by a person authorized by the laws of a foreign country to
make the execution or attestation, and accompanied by a final certification as
to the genuineness of the signature and official position:
(i) of the executing
or attesting person, or
(ii) of any foreign
official whose certificate of genuineness of signature and official position
related to the execution or attestation or is in a chain of certificates of
genuineness of signature and official position relating to the execution or
attestation.
A final certification may be made by a secretary of embassy or legation, consul
general, consul, vice consul, or consular agent of the United States, or a
diplomatic or consular official of the foreign county assigned or accredited to
the United States. If reasonable opportunity has been given to all parties to
investigate the authenticity and accuracy of official documents, the Court may,
for good cause shown, order that they be treated as presumptively authentic
without final certification or permit them to be evidenced by an attested
summary with or without final certification.
(4) Certified copies
of public records. A copy of an official record or report or entry
therein, or of a document authorized by law to be recorded or filed and
actually recorded or filed in a public office, including data compilations in
any form, certified as correct by the custodian or other person authorized to
make the certification, by certificate complying with Subsection (1), (2), or
(3) of this Section or complying with any Act or Ordinance of the Executive
Committee or rule prescribed by the Supreme Court of the Tribe pursuant to
statutory authority.
(5) Official
publications. Books, pamphlets, or other publications purporting to be
issued by public authority.
(6) Newspapers and
periodicals. Printed materials purporting to be newspapers or periodicals.
(7) Trade
inscriptions and the like. Inscriptions, signs, tags, or labels purporting
to have been affixed in the course of business and indicating ownership,
control, or origin.
(8) Acknowledged
documents. Documents accompanied by a certificate of acknowledgment
executed in the manner provided by law by a notary public or other officer
authorized by law to take acknowledgments or administer oaths.
(9) Commercial paper
and related documents. Commercial paper, signatures thereon, and documents
relating thereto to the extent provided by general commercial law.
(10) Presumptions
under Acts or Ordinances. Any signature, document, or other matter
declared by Act or Ordinance of the Executive Committee to be presumptively or
prima facie genuine or authentic.
Section 903. Subscribing Witness' Testimony Unnecessary
The testimony of a
subscribing witness is not necessary to authenticate a writing unless required
by the laws of the jurisdiction whose laws govern the validity of the writing.
CHAPTER TEN
CONTENTS OF WRITING, RECORDINGS, AND PHOTOGRAPHS
Section 1001. Definitions
For the purpose of this
article the following definitions are applicable:
(a) Writings and
recordings. "Writings" and "recordings" consist of
letters, words, or numbers or their equivalent, set down by handwriting,
typewriting, printing, photostating, photographing, magnetic impulse, mechanical
or electronic recording, or other form of data compilation.
(b) Photographs.
"Photographs" include still photographs, X-ray films, video tapes, and
motion pictures.
(c) Original. An
"Original" of a writing or recording is the writing or recording
itself or any counterpart intended to have the same effect by a person executing
or issuing it. An "Original" of a photograph includes the negative or
any print therefrom. If data are stored in a computer or similar device, any
printout or other output readable by sight, shown to reflect the data
accurately, is an "Original".
(d) Duplicate. A
"duplicate" is a counterpart produced by the same impression as the
original, or from the same matrix, or by means of photography, including
enlargements and miniatures, or by mechanical or electronic re- recording, or by
chemical reproduction, or by other equivalent techniques which accurately
reproduces the original.
Section 1002. Requirement of Original
The prove the content of
a writing, recording, or photograph, the original writing, recording, or
photograph is required, except as otherwise provided in this Title or by Act or
Ordinance of the Executive Committee.
Section 1003. Admissibility of Duplicates
A duplicate is admissible
to the same extent as an original unless:
(a) a genuine question is
raised as to the authenticity of the original or
(b) in the circumstances
it would be unfair to admit the duplicate in lieu of the original.
Section 1004. Admissibility of Other Evidence of
Contents
The original is not
required, and other evidence of the contents of a writing, recording, or
photograph is admissible if-
(a) Originals lost
or destroyed. All originals are lost or have been destroyed, unless the
proponent lost or destroyed them in bad faith; or
(b) Original not
obtainable. No original can be obtained by any available judicial process
or procedure; or
(c) Original in
possession of opponent. At a time when an original was under the control
of the party against whom offered, he was put on notice, by the pleadings or
otherwise, that the contents would be a subject of proof at the hearing, and
he does not produce the original at the hearing; or
(d) Collateral
matters. The writings, recording, or photograph is not closely related to
a controlling issue.
Section 1005. Public Records
The contents of an
official record, or of a document authorized to be. recorded or filed and
actually recorded or filed, including data compilation in any form, if otherwise
admissible, may be proved by copy, certified as correct in accordance with
Section 902 or testified to be correct by a witness who has compared it with the
original. If a copy which complies with the foregoing cannot be obtained by the
exercise of reasonable diligence, then other evidence of the contents may be
given.
Section 1006. Summaries
The contents of
voluminous writings, recordings, or photographs which cannot conveniently be
examined in Court may be presented in the form of a chart, summary, or
calculation. The originals, or duplicates, shall be made available for
examination or copying, or both by other parties at reasonable time and place.
The Court may order thafthey be produced in Court.
Section 1007. Testimony or Written Admission of Party
Contents of writings,
recordings, or photographs may be proved by the testimony or deposition of the
party against whom offered or by his written admission, without accounting for
the nonproduction of the original.
Section 1008. Functions of Court and Jury
When the admissibility of
other evidence of contents of writings, recordings, or photographs under this
Title depends upon the fulfillment of a condition of fact, the question whether
the condition has been fulfilled is ordinarily for the Court to determine in
accordance with the provisions of Section 104. However, when an issue is raised
(a) whether the asserted writing ever existed, or (b) whether another writing,
recording, or photograph produced at the trial is the original, or (c) whether
other evidence of contents correctly reflects the contents, the issue is for the
trier of fact to determine as in the case of other issues of fact.
CHAPTER ELEVEN
MISCELLANEOUS RULES
Section 1101. Applicability of Rules
(a) This Title applies to
all criminal and civil controversies arising from any transaction or occurrence
occurring on land which lies within the jurisdiction of the Tribe and to all
other criminal or civil controversies which are subject to the lawful
jurisdiction of the Courts of the Tribe.
(b) This Title applies
generally to civil actions and proceedings, to criminal actions and proceedings
and to contempt proceedings except those in which the Court may act summarily.
(c) The Chapter with
respect to privileges applies at all stages of all actions, cases, and
proceedings.
(d) This Title (other
than with respect to privileges) do not apply in the following situations:
(1) When the Court must
make preliminary findings of fact in order to rule on the admissibility of
evidence under Section 104.
(2) Proceedings for
extradition, preliminary examinations and arraignments in criminal cases,
sentencing, granting or revoking parole or probation, issuance of warrants for
arrest, criminal summonses, and search warrants, the dispositional phase of
juvenile proceedings, and proceedings with respect to release on bail or
otherwise.
Section 1102. Amendments
The Supreme Court shall
have the power to prescribe amendments to this Title except with respect to any
of these rules relating to privileges. Such amendments shall not take effect
until they have been reported in writing to the Absentee Shawnee Executive
Committee by the Chief Justice and until the expiration of ninety days after
they have been so reported; but if a majority of the participating Executive
Committee within that time shall by formal affirmative written action disapprove
any amendment so reported it shall not take effect. The effective date of any
amendment so reported may be deferred by a majority of the Absentee Shawnee
Executive Committee to a later date or until approved by them. Any rule whether
proposed or in force may be amended by an Act enacted by the Absentee Shawnee
Executive Committee. Any provision of law in force at the expiration of such
time and in conflict with any such amendment not disapproved shall be of no
further force or effect after such amendment has taken effect. Any proposed
amendment creating, abolishing, or modifying a privilege shall have no force or
effect unless it shall be approved by Act of the Executive Committee. Upon
becoming effective, all amendments made by the Tribal Supreme Court shall be
incorporated into this Title and thereafter have the force and effect of a
Tribal Statute.
Section 1103. Title
This Title may be known
and cited as the Rules of Evidence, or the Evidence Code of the Tribe.
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