Title
7. Rules of Evidence
Adopted 12-11-03,
affirmed by Resolution
No. 03-12-04
Title
7. Rules of Evidence
Adopted
December 11, 2003
PART II. PIT RIVER TRIBE RULES OF EVIDENCE
PART II. PIT RIVER RULES OF EVIDENCE
CHAPTER 1. GENERAL
RULE 100 - SHORT TITLE
Rules
100 to 1008 shall be known and may be cited by their respective Rule
number, as the Pit River Evidence Code, or PRRE (Example: PRRE Rule
100).
(Originally
Adopted 12-3-03; Resolution # 03-12-04; Code 2004)
RULE 101 - APPLICABILITY OF PIT RIVER EVIDENCE CODE
(A) The
Pit River Evidence Code applies to the Pit River Indian Tribal Court.
(B) The
Pit River Evidence Code applies generally to civil actions, suits
and proceedings, and to contempt proceedings except those in which
the court may act summarily.
(C) Rules
503 to 518 relating to privileges apply at all stages of all actions,
suits and proceedings.
(D) Rules
100 to 412 and Rules 601 to 1008 do not apply in the following situations:
(1)
The determination of questions of fact preliminary to admissibility
of evidence when the issue is to be determined by the Court under
Rule 104.
(2)
Issuance of warrants of arrest, bench warrants or search warrants.
(3)
Shelter care hearings and proceedings to determine proper disposition
of a child in accordance with the PRT Family Law Code.
(Originally
Adopted 12-3-03; Resolution # 03-12-04; Code 2004)
RULE 102 - PURPOSE AND CONSTRUCTION
(A) The
Pit River Evidence Code shall be construed 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.
(B) The
purpose of these rules of evidence is to ensure that the tribal court
is able to determine the truth of a matter with a minimum of delay,
confusion, and uncertainty.
(C) The
Rules of Evidence used in state and federal courts shall not apply
to hearings in the Pit River Tribal Court. But where there is more
than one kind of evidence about the same subject, the judge should
hear the most reliable kind of evidence. In oral testimony, persons
who testify from their personal knowledge, such as first-hand observation
of or participation in the event described shall be preferred as witnesses
to persons who have second-hand knowledge of the event.
(Originally
Adopted 12-3-03; Resolution # 03-12-04; Code 2004)
RULE 103 - RULINGS ON EVIDENCE
(A) Effect
of Erroneous Ruling. Evidential error is not presumed to be prejudicial.
Reversible error may not be predicated 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 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) Plain
Error. Nothing in this rule precludes taking notice of plain errors
affecting substantial rights although they were not brought to the
attention of the court.
(Originally
Adopted 12-3-03; Resolution # 03-12-04; Code 2004)
RULE 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 subsection (B) of this Rule. In making
its determination the Court is not bound by the rules of evidence
except those 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 subject to, the introduction of evidence sufficient to support
a finding of the fulfillment of the condition.
(C)
Testimony by Accused. The accused does not, by testifying upon
a preliminary matter, become subject to cross-examination as to other
issues in the case.
(Originally
Adopted 12-3-03; Resolution # 03-12-04; Code 2004)
RULE 105 - LIMITED ADMISSIBILITY
(A) 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.
(B) Self-Incrimination
(1)
The defendant in a criminal prosecution shall not be made to testify
against his or her will. However, incriminating statements which
the defendant made voluntarily out of court may be presented in
court.
(2)
If a defendant in a criminal prosecution chooses to testify on matters
other than those related to his or her guilt or innocence, cross-examination
shall be limited to the areas of defendant's testimony and to matters
which indicate defendant's credibility.
(3)
Every person who appears as a witness in Pit River Tribal Court
has the right to refuse to answer a question if the answer may tend
to incriminate the witness.
(Originally
Adopted 12-3-03; Resolution # 03-12-04; Code 2004)
RULE 106 - WHEN PART OF TRANSACTION PROVED, WHOLE ADMISSIBLE
When part
of an act, declaration, conversation or writing is given in evidence
by one party, the whole on the same subject, where otherwise admissible,
may at that time be inquired into by the other; when a letter is read,
the answer may at that time be given; and when a detached act, declaration,
conversation or writing is given in evidence, any other act, declaration,
conversation or writing which is necessary to make it understood may
at that time also be given in evidence.
(Originally
Adopted 12-3-03; Resolution # 03-12-04; Code 204)
CHAPTER 2. JUDICIAL NOTICE
RULE
201 SCOPE
(A) Rule
201 governs judicial notice of adjudicative facts. Rule 202 governs
judicial notice of law.
(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 trial
court; or
(2)
Capable of accurate and ready determination by resort to sources
whose accuracy cannot reasonably be questioned.
(C) When
Mandatory or Discretionary
(1)
A court may take judicial notice, whether requested or not.
(2)
A court shall take judicial notice if requested by a party and supplied
with the necessary information.
(D) 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.
(E)
Time of Taking Notice. Judicial notice may be taken at any stage
of the proceeding.
(Originally
Adopted 12-3-03; Resolution # 03-12-04; Code 2004)
RULE 202 - KINDS OF LAW
Law judicially
noticed is defined as:
(A) The
decisional, constitutional and public ordinances and statutory law
of the Pit River Tribe, another Federally recognized Indian Tribe,
the United States and any state, territory or other jurisdiction of
the United States.
(B) Public
and private official acts of the legislative, executive and judicial
departments of the Pit River Tribe, another Federally recognized Indian
Tribe, the United States, and any state, territory or other jurisdiction
of the United States.
(C) Rules
of professional conduct for members of any tribal, state or Federal
Association.
(D) Regulations,
ordinances and similar legislative enactments issued by or under the
authority of the Pit River Tribe, another Federally recognized Indian
tribe, the United States or any state, territory or possession of
the United States.
(E) Rules
of Court or any court of the Pit River Tribe, another Federally recognized
Indian tribe, or any court of record of the United States or of any
state, territory or other jurisdiction of the United States.
(F) The
law of an organization of nations and of foreign nations and public
entities in foreign nations.
(Originally
Adopted 12-3-03; Resolution # 03-12-04; Code 2004)
CHAPTER 3. BURDEN OF PERSUASION
BURDEN OF PRODUCING EVIDENCE; PRESUMPTIONS
RULE 301 - ALLOCATION OF THE BURDEN OF PERSUASION
A party
has the burden of persuasion as to each fact the existence or nonexistence
of which the law declares essential to the claim for relief or defense
the party is asserting.
(Originally
Adopted 12-3-03; Resolution # 03-12-04; Code 2004)
RULE 302 - PRESUMPTIONS IN CIVIL PROCEEDINGS
In civil
actions and proceedings, a presumption imposes on the party against
whom it is directed the burden of proving that the nonexistence of the
presumed fact is more probable than its existence.
(Originally
Adopted 12-3-03; Resolution # 03-12-04; Code 2004)
RULE 303 - CONFLICTING PRESUMPTIONS
If presumptions
are conflicting, the presumption applies that is founded upon weightier
considerations of policy and logic. If considerations of policy and
logic are of equal weight, neither presumption applies.
(Originally
Adopted 12-3-03; Resolution # 03-12-04; Code 2004)
RULE 304 - PRESUMPTIONS
(A) The
following are presumptions:
(1)
A person intends the ordinary consequences of a voluntary act.
(2)
A person takes ordinary care of the person's own concerns.
(3)
Evidence willfully suppressed would be adverse to the party suppressing
it.
(4)
Money paid by one to another was due to the latter.
(5)
A thing delivered by one to another belonged to the latter.
(6)
An obligation delivered to the debtor has been paid.
(7)
A person is the owner of property from exercising acts of ownership
over it or from common reputation of the ownership of the person.
(8)
A person in possession of an order on that person, for the payment
of money or the delivery of a thing, has paid the money or delivered
the thing accordingly.
(9)
A person acting in a public office was regularly appointed to it.
(10)
Official duty has been regularly performed.
(11)
A court, or judge acting as such, whether in the Pit River Tribe,
or any other federally recognized Indian tribe, or a state or country,
was acting in the lawful exercise of the jurisdiction of the court.
(12)
Private transactions have been fair and regular.
(13)
The ordinary course of business has been followed.
(14)
A promissory note or bill of exchange was given or indorsed for
a sufficient consideration.
(15)
An endorsement of a negotiable promissory note, or bill of exchange,
was made at the time and place of making the note or bill.
(16)
A writing is truly dated.
(17)
A letter duly directed and mailed was received in the regular course
of the mail.
(18)
A person is the same person if the name is identical.
(19)
A person not heard from in seven years is dead.
(20)
Persons acting as copartners have entered into a contract of co-partnership.
(21)
A man and woman deporting themselves as husband and wife have entered
into a lawful contract of marriage.
(22)
A thing once proved to exist continues as long as is usual with
things of that nature.
(23)
The law has been obeyed.
(24)
An uninterrupted adverse possession of real property for 20 years
or more has been held pursuant to a written conveyance.
(25)
A trustee or other person whose duty it was to convey real property
to a particular person has actually conveyed it to the person, when
such presumption is necessary to perfect the title of the person
or the person's successor in interest.
(B) A
statute or ordinance providing that a fact or a group of facts is
prima facie evidence of another fact establishes a presumption within
the meaning of this Rule.
(Originally
Adopted 12-3-03; Resolution # 03-12-04; Code 2004)
CHAPTER 4. RELEVANCY
RULE 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.
(Originally
Adopted 12-3-03; Resolution # 03-12-04; Code 2004)
RULE 402 - RELEVANT EVIDENCE GENERALLY ADMISSIBLE
All relevant
evidence is admissible, except as otherwise provided by the Pit River
Evidence Code, by the Constitutions of the Pit River Tribe and the United
States or by the ordinance statute and decisional law of the Pit River
Tribe. Evidence which is not relevant is not admissible.
(Originally
Adopted 12-3-03; Resolution # 03-12-04; Code 2004)
RULE 403 - EXCLUSION OF RELEVANT EVIDENCE ON GROUNDS OF PREJUDICE,
CONFUSION OR UNDUE DELAY
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 finder of fact, or by considerations of undue delay
or needless presentation of cumulative evidence.
(Originally
Adopted 12-3-03; Resolution # 03-12-04; Code 2004)
RULE 404 - CHARACTER EVIDENCE: ADMISSIBILITY
(A) Admissibility
Generally. Evidence of a person's character or trait of character
is admissible when it is an essential element of a charge, claim or
defense.
(B) Admissibility
for Certain Purpose Prohibited; Exceptions. Evidence of a person's
character is not admissible for the purpose of proving that the person
acted in conformity therewith on a particular occasion, except:
(1)
Character of Witness. Evidence of the character of a witness, as
provided in Chapter 6; or
(2)
Character for Violent Behavior. Evidence of the character of a party
for violent behavior offered in a civil assault and battery case
when self-defense is pleaded and there is evidence to support such
defense.
(C) 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 the person 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.
(Originally
Adopted 12-3-03; Resolution # 03-12-04; Code 2004)
RULE 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.
(1)
In cases in which character or a trait of character of a person
is admissible under Rule 404(A), proof may also be made of specific
instances of the conduct of the person.
(2)
When evidence is admissible under Rule 404(C), proof may be made
of specific instances of the conduct of the person.
(Originally
Adopted 12-3-03; Resolution # 03-12-04; Code 2004)
RULE 406 - HABIT; ROUTINE PRACTICE
(A) Evidence
of the habit of a 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.
(B) As
used in this Rule, "habit" means a person's regular practice
of meeting a particular kind of situation with a specific, distinctive
type of conduct.
(Originally
Adopted 12-3-03; Resolution # 03-12-04; Code 2004)
RULE 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. This Rule 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.
(Originally
Adopted 12-3-03; Resolution # 03-12-04; Code 2004)
RULE 408 - COMPROMISE AND OFFERS TO COMPROMISE
(A) Evidence
of furnishing or offering or promising to furnish, or 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.
(B) Evidence
of conduct or statements made in compromise negotiations is likewise
not admissible.
(C) Subsection
(A) of this Rule does not require the exclusion of any evidence otherwise
discoverable merely because it is presented in the course of compromise
negotiations.
(D) Subsection
(A) of this Rule also does not require exclusion when the evidence
is offered for another purpose, such as proving bias or prejudice
of a witness, negating a contention of undue delay, or proving an
effort to obstruct a criminal investigation or prosecution.
(Originally
Adopted 12-3-03; Resolution # 03-12-04; Code 2004)
RULE 409 - PAYMENT OF MEDICAL AND SIMILAR EXPENSES
Evidence
of furnishing or offering or promising to pay medical, hospital or similar
expenses occasioned by an injury is not admissible to prove liability
for the injury. Evidence of payment for damages arising from injury
or destruction of property is not admissible to prove liability for
the injury or destruction.
(Originally
Adopted 12-3-03; Resolution # 03-12-04; Code 2004)
RULE 410 - LIABILITY INSURANCE
(A) Except
where lack of liability insurance is an element of an offense, evidence
that a person was or was not insured against liability is not admissible
upon the issue whether the person acted negligently or otherwise wrongfully.
(B) Subsection
(A) of this Rule does not require the exclusion of evidence of insurance
against liability when offered for another purpose, such as proving
agency, ownership or control, or bias, prejudice or motive of a witness.
(Originally
Adopted 12-3-03; Resolution # 03-12-04; Code 2004)
CHAPTER 5. PRIVILEGES
RULE 501 - LAWYER-CLIENT PRIVILEGE
(A) Definitions.
As used in this Rule, unless the context requires otherwise:
(1)
"Client" means a person, public officer, 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 the lawyer.
(2)
"Confidential communication" means a communication not
intended to be disclosed to third persons other than those to whom
disclosure is in furtherance of the rendition of professional legal
services to the client or those reasonably necessary for the transmission
of the communication.
(3)
"Lawyer" means a person authorized, or reasonably believed
by the client to be authorized, to practice law in any state or
nation, or in the Pit River Tribal Court as a lawyer or Advocate.
(4)
"Representative of the client" means a principal, an employee,
an officer or a director of the client:
a.
Who provides the client's lawyer with information that was acquired
during the course of, or as a result of, such person's relationship
with the client as principal, employee, officer or director, and
is provided to the lawyer for the purpose of obtaining for the
client the legal advice or other legal services of the lawyer;
or
b.
Who, as part of such person's relationship with the client as
principal, employee, officer or director, seeks, receives or applies
legal advice from the client's lawyer.
(5)
"Representative of the lawyer" means one employed to assist
the lawyer in the rendition of professional legal services, but
does not include a physician making a physical or mental examination.
(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 the client or the client's representative and the client's
lawyer or a representative of the lawyer;
(2)
Between the client's lawyer and the lawyer's representative;
(3)
By the client or the client's lawyer to a lawyer representing another
in a matter of common interest;
(4)
Between representatives of the client or between the client and
a representative of the client; or
(5)
Between lawyers representing the client.
(C) Who
May Claim the Privilege. The privilege created by this Rule may
be claimed by the client, a guardian or conservator of the client,
the personal representative of a deceased client, or the successor,
trustee, or similar representative of a corporation, association,
or 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 but only on behalf
of the client.
(D) Exceptions.
There is no privilege under this Rule:
(1)
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)
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 inter vivos transaction;
(3)
As to a communication relevant to an issue of breach of duty by
the lawyer to the client or by the client to the lawyer;
(4)
As to a communication relevant to an issue concerning an attested
document to which the lawyer is an attesting witness; or
(5)
As to a communication relevant to a matter of common interest between
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 any of the clients.
(Originally
Adopted 12-3-03; Resolution # 03-12-04; Code 2004)
RULE 502 - PSYCHOTHERAPIST-PATIENT PRIVILEGE
(A) Definitions.
As used in this Rule, unless the context requires otherwise:
(1)
"Confidential communication" means a communication not
intended to be disclosed to third persons except:
a.
Persons present to further the interest of the patient in the
consultation, examination or interview;
b.
Persons reasonably necessary for the transmission of the communication;
or
c.
Persons who are participating in the diagnosis and treatment under
the direction of the psychotherapist, including members of the
patient's family.
(2)
"Patient" means a person who consults or is examined or
interviewed by a psychotherapist.
(3)
"Psychotherapist" means a person who is:
a.
Licensed, registered, certified or otherwise authorized under
the laws of any state or any Federally recognized Indian Tribe
to engage in the diagnosis or treatment of a mental or emotional
condition; or
b.
Reasonably believed by the patient so to be, while so engaged.
(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 purposes of diagnosis or treatment of the patient's mental
or emotional condition among the patient, the patient's psychotherapist
or persons who are participating in the diagnosis or treatment under
the direction of the psychotherapist, including members of the patient's
family.
(C) Who
May Claim the Privilege. The privilege created by this Rule may
be claimed by:
(1)
The patient.
(2)
A guardian or conservator of the patient.
(3)
The personal representative of a deceased patient.
(4)
The person who was the psychotherapist, but only on behalf of the
patient. The psychotherapist's authority so to do is presumed in
the absence of evidence to the contrary.
(D) General
Exceptions. The following is a nonexclusive list of limits on
the privilege granted by this Rule:
(1)
If the judge orders an examination of the mental, physical or emotional
condition of the patient, communications made in the course thereof
are not privileged under this Rule with respect to the particular
purpose for which the examination is ordered unless the judge orders
otherwise.
(2)
There is no privilege under this rule as to communications relevant
to an issue of the mental or emotional condition of the patient:
a.
In any proceeding in which the patient relies upon the condition
as an element of the patient's claim or defense; or
b.
After the patient's death, in any proceeding in which any party
relies upon the condition as an element of the party's claim or
defense.
(3)
Except as provided in the Law and Order Code, there is no privilege
under this Rule for communications made in the course of a mental
examination for the purposes of determining the persons ability
to understand the nature of the case or issue at hand.
(Originally
Adopted 12-3-03; Resolution # 03-12-04; Code 2004)
RULE 503 - PHYSICIAN-PATIENT PRIVILEGE
(A) Definitions.
As used in this Rule, unless the context requires otherwise:
(1)
"Confidential communication" means a communication not
intended to be disclosed to third persons except:
a.
Persons present to further the interest of the patient in the
consultation, examination or interview;
b.
Persons reasonably necessary for the transmission of the communication;
or
c.
Persons who are participating in the diagnosis and treatment under
the direction of the physician, including members of the patient's
family.
(2)
"Patient" means a person who consults or is examined or
interviewed by a physician.
(3)
"Physician" means a person
a.
Authorized and licensed or certified to practice medicine in any
state or nation, including licensed or certified naturopathic
and chiropractic physician, or
b.
Recognized or Certified by the Tribal Council of the Pit River
Tribe as a Tribal Medicine Man or Healer, or reasonably believed
by the patient so to be, while engaged in the diagnosis or treatment
of a physical condition.
(B) General
Rule of Privilege. A patient has a privilege to refuse to disclose
and to prevent any other person from disclosing confidential communications
in a civil action, suit or proceeding, made for the purposes of diagnosis
or treatment of the patient's physical condition, among the patient,
the patient's physician or persons who are participating in the diagnosis
or treatment under the direction of the physician, including members
of the patient's family.
(C) Who
May Claim the Privilege. The privilege created by this Rule may be
claimed by:
(1)
The patient;
(2)
A guardian or conservator of the patient;
(3)
The personal representative of a deceased patient; or
(4)
The person who was the physician, but only on behalf of the patient.
Such person's authority so to do is presumed in the absence of evidence
to the contrary.
(D) General
Exceptions. The following is a nonexclusive list of limits on the
privilege granted by this Rule:
(1)
If the judge orders an examination of the physical condition of
the patient, communications made in the course thereof are not privileged
under this Rule with respect to the particular purpose for which
the examination is ordered unless the judge orders otherwise.
(2)
Except as provided in this Law and Order Code, there is no privilege
under this Rule for communications made in the course of a physical
examination for the purposes of determining the persons ability
to understand the nature of the case or issue at hand.
(Originally
Adopted 12-3-03; Resolution # 03-12-04; Code 2004)
RULE 504 - NURSE-PATIENT PRIVILEGE
A licensed
professional nurse shall not, without the consent of a patient who was
cared for by such nurse, be examined in a civil action or proceeding,
as to any information acquired in caring for the patient, which was
necessary to enable the nurse to care for the patient.
(Originally
Adopted 12-3-03; Resolution # 03-12-04; Code 2004)
RULE 505 - SCHOOL EMPLOYEE-STUDENT PRIVILEGE
(A) A
certificated staff member of an elementary or secondary school shall
not be examined in any civil action or proceeding, as to any conversation
between the certificated staff member and a student which relates
to the personal affairs of the student or family of the student, and
which if disclosed would tend to damage or incriminate the student
or family.
(B) A
certificated school counselor regularly employed and designated in
such capacity by a public school shall not, without the consent of
the student, be examined as to any communication made by the student
to the counselor in the official capacity of the counselor in any
civil action or proceeding or a criminal action or proceeding in which
such student is a party concerning the past use, abuse or sale of
drugs, controlled substances or alcoholic liquor.
(Originally
Adopted 12-3-03; Resolution # 03-12-04; Code 2004)
RULE 506 - CLINICAL SOCIAL WORKER-CLIENT PRIVILEGE
A clinical
social worker licensed by the Pit River Tribe or by the California State
Board of Clinical Social Workers shall not be examined in a court proceeding
as to any communication given the clinical social worker by a client
in the course of noninvestigatory professional activity when such communication
was given to enable the licensed clinical social worker to aid the client,
except:
(A) When
the client or those persons legally responsible for the client's affairs
give consent to the disclosure;
(B) When
the client initiates legal action or makes a complaint against the
licensed clinical social worker to the board;
(C) When
the communication reveals a clear intent to commit a crime which reasonably
is expected to result in physical injury to a person;
(D) When
the information reveals that a minor was the victim of a crime, abuse
or neglect; or
(E) When
the licensed clinical social worker is a public or Pit River Tribal
employee and the employer has determined that examination in a court
proceeding is necessary in the performance of the duty of the social
worker as a public or Pit River Tribal employee.
(Originally
Adopted 12-3-03; Resolution # 03-12-04; Code 2004)
RULE 507 - HUSBAND-WIFE PRIVILEGE
(A) As
used in this Rule, unless the context requires otherwise:
(1)
"Confidential communication" means a communication by
a spouse to the other spouse and not intended to be disclosed to
any other person.
(2)
"Marriage" means a marital relationship between husband
and wife, legally recognized under the laws of the Pit River Tribe
or the State of California.
(B) In
any action, a spouse has a privilege to refuse to disclose and to
prevent the other spouse from disclosing any confidential communication
made by one spouse to the other during the marriage. The privilege
created by this subsection may be claimed by either spouse. The authority
of the spouse to claim the privilege and the claiming of the privilege
is presumed in the absence of evidence to the contrary.
(C) There
is no privilege under this Rule:
(1)
In all actions in which one spouse is charged with bigamy or with
an offense or attempted offense against the person or property of
the other spouse or of a child of either, or with an offense against
the person or property of a third person committed in the course
of committing or attempting to commit an offense against the other
spouse;
(2)
As to matters occurring prior to the marriage; or
(3)
In any civil action where the spouses are adverse parties.
(Originally
Adopted 12-3-03; Resolution # 03-12-04; Code 2004)
RULE 508 - CLERGY-PENITENT PRIVILEGE
(A) Definitions.
As used in this Rule, unless the context requires otherwise:
(1)
"Confidential communication" means a communication made
privately and not intended for further disclosure except to other
persons present in furtherance of the purpose of the communication.
(2)
"Member of the clergy" means a minister of any church
or spiritual leader of any church, religious or spiritual denomination
or organization, or Healer recognized or certified as such by the
Tribal Council of the Pit River Tribe, or accredited Christian Science
practitioner who in the course of the discipline or practice of
that church, denomination or organization is authorized or accustomed
to hearing confidential communications and, under the discipline
or tenets of that church, denomination or organization, has a duty
to keep such communications secret.
(B) General
Rule of Privilege. A member of the clergy shall not, without the consent
of the person making the communication, be examined as to any confidential
communication made to the member of the clergy in the member's professional
character.
(Originally
Adopted 12-3-03; Resolution # 03-12-04; Code 2004)
RULE 509 - COUNSELOR-CLIENT PRIVILEGE
A professional
counselor or a marriage and family therapist licensed by the Pit River
Tribe or by the appropriate California licensing board shall not be
examined as to any communication given the counselor or therapist by
a client in the course of a noninvestigatory professional activity when
such communication was given to enable the counselor or the therapist
to aid the client, except:
(A) When
the client or those persons legally responsible for the affairs of
the client give consent to the disclosure. If both parties to a marriage
have obtained marital and family therapy by a licensed marital and
family therapist or a licensed counselor, the therapist or counselor
shall not be competent to testify in a domestic relations action other
than child custody action concerning information acquired in the course
of the therapeutic relationship unless both parties consent;
(B) When
the client initiates legal action or makes a complaint against the
licensed professional counselor or licensed marriage and family therapist
to the appropriate licensing board;
(C) When
the communication reveals the intent to commit a crime or harmful
act; or
(D) When
the communication reveals that a minor is or is suspected to be the
victim of crime, abuse or neglect.
(Originally
Adopted 12-3-03; Resolution # 03-12-04; Code 2004)
RULE 510 - STENOGRAPHER-EMPLOYER PRIVILEGE
A stenographer
shall not, without the consent of the stenographer's employer, be examined
as to any communication or dictation made by the employer to the stenographer
in the course of professional employment.
(Originally
Adopted 12-3-03; Resolution # 03-12-04; Code 2004)
RULE 511 - PUBLIC OFFICER PRIVILEGE
A public
or Pit River Tribal officer shall not be examined as to public records
determined to be exempt from disclosure under the law of the Pit River
Tribe.
(Originally
Adopted 12-3-03; Resolution # 03-12-04; Code 2004)
RULE 512 - DISABLED PERSON-SIGN LANGUAGE INTERPRETER PRIVILEGE
(A) As
used in this Rule:
(1)
"Disabled person" means a person who cannot readily understand
or communicate the spoken English language, or cannot understand
proceedings in which the person is involved, because of deafness
or because of a physical hearing impairment or cannot communicate
in the proceedings because of a physical speaking impairment.
(2)
"Sign language interpreter" or "interpreter"
means a person who translates conversations or other communications
for a disabled person or translates the statements of a disabled
person.
(B) A
disabled person has a privilege to refuse to disclose and to prevent
a sign language interpreter from disclosing any communications to
which the disabled person was a party that were made while the interpreter
was providing interpretation services for the disabled person. The
privilege created by this Rule extends only to those communications
between a disabled person and another, and translated by the interpreter,
that would otherwise be privileged under Rules 503 to 518.
(Originally
Adopted 12-3-03; Resolution # 03-12-04; Code 2004)
RULE 513 - NON-ENGLISH SPEAKING PERSON-INTERPRETER PRIVILEGE
(A) As
used in this Rule:
(1)
"Interpreter" means a person who translates conversations
or other communications for a non-English speaking person or translates
the statements of a non-English speaking person.
(2)
"Non-English speaking person" means a person who, by reason
of place of birth or culture, speaks a language other than English
and does not speak English with adequate ability to communicate
in the proceedings.
(B) A
non-English speaking person has a privilege to refuse to disclose
and to prevent an interpreter from disclosing any communications to
which the non-English speaking person was a party that were made while
the interpreter was providing interpretation services for the non-English
speaking person. The privilege created by this Rule extends only to
those communications between a non-English speaking person and another,
and translated by the interpreter, that would otherwise be privileged
under Rules 503 to 518.
(Originally
Adopted 12-3-03; Resolution # 03-12-04; Code 2004)
RULE 514 - IDENTITY OF INFORMER
(A) As
used in this Rule, "unit of government" means the government
of the Pit River Tribe, another Federally recognized Indian Tribe,
Federal Government or any state or political subdivision thereof.
(B) A
unit of government has a privilege to refuse to disclose the identity
of a person who has furnished information relating to or assisting
in an investigation of a possible violation of law to a law enforcement
officer or member of a legislative committee or its staff conducting
an investigation.
(C) The
privilege created by this Rule may be claimed by an appropriate representative
of the unit of government if the information was furnished to an officer
thereof.
(D) No
privilege exists under this Rule:
(1)
If the identity of the informer or the informer's interest in the
subject matter of the communication has been disclosed to those
who would have cause to resent 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 unit of government.
(2)
If it appears from the evidence in the case or from other showing
by a party that an informer may be able to give testimony necessary
to a fair determination of a material issue on the merits in a civil
case to which the unit of government is a party, and the unit of
government invokes the privilege, and the judge gives the unit of
government 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 judge may
direct that testimony be taken if the judge finds that the matter
cannot be resolved satisfactorily upon affidavit. If the judge finds
that there is a reasonable probability that the informer can give
the testimony, and the unit of government elects not to disclose
the identity of the informer, the judge in civil cases, may make
any order that justice requires. Evidence submitted to the judge
shall be sealed and preserved to be made available to the appellate
court in the event of an appeal, and the contents shall not otherwise
be revealed without consent of the unit of government. All counsel
and parties shall be permitted to be present at every stage of proceedings
under this paragraph except a showing in camera, at which no counsel
or party shall be permitted to be present.
(3)
If information from an informer is relied upon to establish the
legality of the means by which evidence was obtained and the judge
is not satisfied that the information was received from an informer
reasonably believed to be reliable or credible. The judge may require
the identity of the informer to be disclosed. The judge shall, on
request of the unit of government, direct that the disclosure be
made in camera. All counsel and parties concerned with the issue
of legality shall be permitted to be present at every stage of proceedings
under this paragraph except a disclosure in camera, at which no
counsel or party shall be permitted to be present. If disclosure
of the identity of the informer is made in camera, the record thereof
shall be sealed and preserved to be made available to the appellate
court in the event of an appeal, and the contents shall not otherwise
be revealed without consent of the unit of government.
(Originally
Adopted 12-3-03; Resolution # 03-12-04; Code 2004)
RULE 515 - WAIVER OF PRIVILEGE BY VOLUNTARY DISCLOSURE
A person
upon whom Rules 503 to 518 confer a privilege against disclosure of
the confidential matter or communication waives the privilege if the
person or the person's predecessor while holder of the privilege voluntarily
discloses or consents to disclosure of any significant part of the matter
or communication. This Rule does not apply if the disclosure is itself
a privileged communication. Voluntary disclosure does not occur with
the mere commencement of litigation or, in the case of a deposition
taken for the purpose of perpetuating testimony, until the offering
of the deposition as evidence. Voluntary disclosure does occur, as to
psychotherapists in the case of a mental or emotional condition and
physicians in the case of a physical condition upon the holder's offering
of any person as a witness who testifies as to the condition.
(Originally
Adopted 12-3-03; Resolution # 03-12-04; Code 2004)
RULE 516 - PRIVILEGED MATTER DISCLOSED UNDER COMPULSION OR WITHOUT
OPPORTUNITY TO CLAIM PRIVILEGE
Evidence
of a statement or other disclosure of privileged matter is not admissible
against the holder of the privilege if the disclosure was:
(A) Compelled
erroneously; or
(B) Made
without opportunity to claim the privilege.
(Originally
Adopted 12-3-03; Resolution # 03-12-04; Code 2004)
RULE 517 - COMMENT UPON OR INFERENCE FROM CLAIM OF PRIVILEGE
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 from a claim of privilege.
(Originally
Adopted 12-3-03; Resolution # 03-12-04; Code 2004)
RULE 518 - EFFECT ON EXISTING PRIVILEGES
Unless
expressly provided in these Rules, all existing privileges created under
the Constitution or ordinances of the Pit River Tribe are recognized
and shall continue to exist until changed or repealed according to law.
(Originally
Adopted 12-3-03; Resolution # 03-12-04; Code 2004)
CHAPTER 6. WITNESSES
RULE 601 - GENERAL RULE OF COMPETENCY
Except
as provided in Rules 601 to 606, any person who, having organs of sense,
can perceive, and perceiving can make known the perception to others,
may be a witness.
(Originally
Adopted 12-3-03; Resolution # 03-12-04; Code 2004)
RULE 602 - LACK OF PERSONAL KNOWLEDGE
Subject
to the provisions of Chapter 7, a witness may not testify to a matter
unless evidence is introduced sufficient to support a finding that the
witness has personal knowledge of the matter. Evidence to prove personal
knowledge may, but need not, consist of the testimony of the witness.
(Originally
Adopted 12-3-03; Resolution # 03-12-04; Code 2004)
RULE 603 - OATH OR AFFIRMATION
(A) Before
testifying, every witness shall be required to declare that the witness
will testify truthfully, by oath or affirmation administered in a
form calculated to awaken the conscience of the witness and impress
the mind of the witness with the duty to do so.
(B) An
oath may be administered as follows: The person who swears holds up
one hand while the person administering the oath asks: "Under
penalty of perjury, do you solemnly swear that the evidence you shall
give in the issue (or matter) now pending between _______ and _______
shall be the truth, the whole truth and nothing but the truth, so
help you God?" If the oath is administered to any other than
a witness, the same form and manner may be used. The person swearing
must answer in an affirmative manner.
(Originally
Adopted 12-3-03; Resolution # 03-12-04; Code 2004)
RULE 604 - INTERPRETERS
An interpreter
is subject to the provisions of the Pit River Evidence Code relating
to qualification as an expert and the administration of an oath or affirmation
that the interpreter will make a true translation.
(Originally
Adopted 12-3-03; Resolution # 03-12-04; Code 2004)
RULE 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.
(Originally
Adopted 12-3-03; Resolution # 03-12-04; Code 2004)
RULE 606 - WHO MAY IMPEACH
The credibility
of a witness may be attacked by any party, including the party calling
the witness.
(Originally
Adopted 12-3-03; Resolution # 03-12-04; Code 2004)
RULE 607 - EVIDENCE OF CHARACTER AND CONDUCT OF WITNESS
(A) The
credibility of a witness may be attacked or supported by evidence
in the form of opinion or reputation, but:
(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 the conduct of a witness, for the purpose of attacking
or supporting the credibility of the witness, other than conviction
of crime as provided in Rule 608, may not be proved by extrinsic evidence.
Further, such specific instances of conduct may not, even if probative
of truthfulness or untruthfulness, be inquired into on cross- examination
of the witness.
(Originally
Adopted 12-3-03; Resolution # 03-12-04; Code 2004)
RULE 608 - IMPEACHMENT BY EVIDENCE OF CONVICTION OF CRIME
(A) For
the purpose of attacking the credibility of a witness, evidence that
the witness has been convicted of a crime shall be admitted if elicited
from the witness or established by public record, but only if the
crime:
(1)
Was punishable by death or imprisonment in excess of one year under
the law under which the witness was convicted, or
(2)
Involved false statement or dishonesty, regardless of the punishment.
(B) Evidence
of a conviction under this Rule is not admissible if:
(1)
A period of more than ten (10) years has elapsed since the date
of the conviction or of the release of the witness from the confinement
imposed for that conviction, whichever is the later date; or
(2)
The conviction has been expunged by pardon, reversed, set aside
or otherwise rendered nugatory.
(C) When
the credibility of a witness is attacked by evidence that the witness
has been convicted of a crime, the witness shall be allowed to explain
briefly the circumstances of the crime or former conviction; once
the witness explains the circumstances, the opposing side shall have
the opportunity to rebut the explanation.
(D)
The pendency of an appeal therefrom does not render evidence of a
conviction inadmissible. Evidence of the pendency of an appeal is
admissible.
(E) An
adjudication by a juvenile court that a child is within its jurisdiction
is not a conviction of a crime.
(F) A
conviction of any offense designated as a violation by the law of
the jurisdiction, in which the conviction occurred, may not be used
to impeach the character of a witness in any civil action or proceeding.
(Originally
Adopted 12-3-03; Resolution # 03-12-04; Code 2004)
RULE 609 - IMPEACHMENT FOR BIAS OR INTEREST
(A) The
credibility of a witness may be attacked by evidence that the witness
engaged in conduct or made statements showing bias or interest. However,
before this can be done, the statements must be related to the witness
and the conduct described, with the circumstances of times, places
and persons present, and the witness shall be asked whether the witness
made the statements or engaged in such conduct, and, if so, allowed
to explain. If the statements are in writing, they shall be shown
to the witness.
(B) If
a witness fully admits the facts claimed to show the bias or interest
of the witness, additional evidence of that bias or interest shall
not be admitted. If the witness denies or does not fully admit the
facts claimed to show bias or interest, the party attacking the credibility
of the witness may then offer evidence to prove those facts.
(C) Evidence
to support or rehabilitate a witness whose credibility has been attacked
by evidence of bias or interest shall be limited to evidence showing
a lack of bias or interest.
(Originally
Adopted 12-3-03; Resolution # 03-12-04; Code 2004)
RULE 610 - RELIGIOUS BELIEFS OR OPINIONS
Evidence
of the beliefs or opinions of a witness on matters of spirituality and
religion is not admissible for the purpose of showing that by reason
of their nature the credibility of the witness is impaired or enhanced.
(Originally
Adopted 12-3-03; Resolution # 03-12-04; Code 2004)
RULE 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 make the interrogation and presentation effective for the ascertainment
of the truth, avoid needless consumption of time and protect witnesses
from 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. Leading questions should not be used on the direct examination
of a witness except as may be necessary to develop the witness' testimony.
Ordinarily leading questions should be permitted on cross- examination.
When a party calls a hostile witness, an adverse party, or a witness
identified with an adverse party, interrogation may be by leading
questions.
(Originally
Adopted 12-3-03; Resolution # 03-12-04; Code 2004)
RULE 612 - WRITING USED TO REFRESH MEMORY
(A) If
a witness uses a writing to refresh their memory for the purpose of
testifying (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
into 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, excise 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 appellate
court in the event of an appeal.
(C) If
a writing is not produced or delivered pursuant to court order under
this Rule, the court shall make any order justice requires, except
that in criminal cases when the prosecution elects not to comply the
order shall be one striking the testimony or, if the court in its
discretion determines that the interests of justice so require, declaring
a mistrial.
(Originally
Adopted 12-3-03; Resolution # 03-12-04; Code 2004)
RULE 613 - PRIOR STATEMENTS OF WITNESSES
(A) In
examining a witness concerning a prior statement made by the witness,
whether written or not, the statement need not be shown nor its contents
disclosed to the witness at that time, but on request the same shall
be shown or disclosed to opposing counsel.
(B) Extrinsic
evidence of a prior inconsistent statement by a witness is not admissible
unless the witness is afforded an opportunity to explain or deny the
same and the opposite party is afforded an opportunity to interrogate
the witness thereon, or the interests of justice otherwise require.
This provision does not apply to admissions of a party-opponent as
defined in Rule 801.
(Originally
Adopted 12-3-03; Resolution # 03-12-04; Code 2004)
RULE 614 - EXCLUSION OF WITNESSES
At the
request of a party the court may order witnesses excluded until the
time of final argument, and it may make the order of its own motion.
This rule does not authorize exclusion of (1) a party who is a natural
person, or (2) an officer or employee of a party which is not a natural
person designated as its representative by its attorney, or (3) a person
whose presence is shown by a party to be essential to the presentation
of the party's cause.
(Originally
Adopted 12-3-03; Resolution # 03-12-04; Code 2004)
CHAPTER 7. OPINIONS AND EXPERT TESTIMONY
RULE 701 - OPINION TESTIMONY BY LAY WITNESSES
If
the witness is not testifying as an expert, testimony of the witness
in the form of opinions or inferences is limited to those opinions or
inferences which are:
(A) Rationally
based on the perception of the witness; and
(B) Helpful
to a clear understanding of testimony of the witness or the determination
of a fact in issue.
(Originally
Adopted 12-3-03; Resolution # 03-12-04; Code 2004)
RULE 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.
(Originally
Adopted 12-3-03; Resolution # 03-12-04; Code 2004)
RULE 703 - BASIS 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 the expert 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.
(Originally
Adopted 12-3-03; Resolution # 03-12-04; Code 2004)
RULE 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.
(Originally
Adopted 12-3-03; Resolution # 03-12-04; Code 2004)
RULE 705 - DISCLOSURE OF FACT OR DATA UNDERLYING EXPERT OPINION
An expert
may testify in terms of opinion or inference and give 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.
(Originally
Adopted 12-3-03; Resolution # 03-12-04; Code 2004)
CHAPTER 8. HEARSAY
RULE 801 - DEFINITIONS
As
used in Rules 801 to 806, unless the context requires otherwise:
(A) Statement.
A "statement" is:
(1)
An oral or written assertion; or
(2)
Nonverbal conduct of a person, if intended 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.
(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:
a.
Inconsistent with the testimony of the witness and was given under
oath subject to the penalty of perjury at a trial, hearing or
other proceeding, or in a deposition;
b.
Consistent with the testimony of the witness and is offered to
rebut an inconsistent statement or an express or implied charge
against the witness of recent fabrication or improper influence
or motive; or
c.
One of identification of a person made after perceiving the person.
(2)
Admission by Party-Opponent. The statement is offered against
a party and is:
a.
That party's own statement, in either an individual or a representative
capacity;
b.
A statement of which the party has manifested the party's adoption
or belief in its truth;
c.
A statement by a person authorized by the party to make a statement
concerning the subject;
d.
A statement by the party's agent or servant concerning a matter
within the scope of the agency or employment, made during the
existence of the relationship; or
e.
A statement by a coconspirator of a party during the course and
in furtherance of the conspiracy.
(3)
Statement in Deposition. The statement is made in a deposition
taken in the same proceeding or in a proceeding where the other
party has had an opportunity to cross-examine the person making
the statement.
(Originally
Adopted 12-3-03; Resolution # 03-12-04; Code 2004)
RULE 802 - HEARSAY RULE
Hearsay
is not admissible except as provided in Rules 801 to 830 or as otherwise
provided by law.
(Originally
Adopted 12-3-03; Resolution # 03-12-04; Code 2004)
RULE 803 - HEARSAY EXCEPTION; AVAILABILITY OF DECLARANT IMMATERIAL
The following
Rules 804 through 830 are not excluded by Rule 802, even though the
declarant is available as a witness.
(Originally
Adopted 12-3-03; Resolution # 03-12-04; Code 2004)
RULE 804 - 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.
(Originally
Adopted 12-3-03; Resolution # 03-12-04; Code 2004)
RULE 805 - THEN EXISTING MENTAL, EMOTIONAL OR PHYSICAL CONDITION
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 or 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 the declarant's will.
(Originally
Adopted 12-3-03; Resolution # 03-12-04; Code 2004)
RULE 806 - 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 of external source thereof in so far
as reasonably pertinent to diagnosis or treatment.
(Originally
Adopted 12-3-03; Resolution # 03-12-04; Code 2004)
RULE 807 - RECORDED RECOLLECTION
A memorandum
or record concerning a matter about which a witness once had knowledge
but now has insufficient recollection to enable the witness to testify
fully and accurately, shown to have been made or adopted by the witness
when the matter was fresh in the memory of the witness 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.
(Originally
Adopted 12-3-03; Resolution # 03-12-04; Code 2004)
RULE 808 - RECORDS OF REGULARLY CONDUCTED ACTIVITY
A memorandum,
report, record, or data compilation, in any form, of 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
of circumstances of preparation indicate lack of trustworthiness. The
term "business" as used in this subsection includes business,
institution, association, profession, occupation, and calling of every
kind, whether or not conducted for profit.
(Originally
Adopted 12-3-03; Resolution # 03-12-04; Code 2004)
RULE 809 - ABSENCE OF ENTRY IN RECORDS KEPT IN ACCORDANCE WITH THE
PROVISIONS OF RULE 808
Evidence
that a matter is not included in the memoranda, reports, records, or
data compilations, and in any form, kept in accordance with the provisions
of this Chapter 8, to prove the nonoccurrence 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.
(Originally
Adopted 12-3-03; Resolution # 03-12-04; Code 2004)
RULE 810 - PUBLIC RECORDS AND REPORTS
Records,
reports, statements, or data compilations, in any form, of public offices
or agencies, setting forth:
(A) The
activities of the office or agency;
(B) 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
(C) 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.
(Originally
Adopted 12-3-03; Resolution # 03-12-04; Code 2004)
RULE 811 - RECORDS OF VITAL STATISTICS
Records
or data compilations, in any form, of births, fetal deaths, deaths or
marriages, if the report thereof was made to a public office pursuant
to requirements of law.
(Originally
Adopted 12-3-03; Resolution # 03-12-04; Code 2004)
RULE 812 - ABSENCE OF PUBLIC RECORD OR ENTRY
To prove
the absence of a record, report, statement, or data compilation, in
any form, or the nonoccurrence or nonexistence of a matter of which
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 Rule 902, or testimony, that diligent
search failed to disclose the record, report, statement, or data compilation,
or entry.
(Originally
Adopted 12-3-03; Resolution # 03-12-04; Code 2004)
RULE 813 - RECORDS OF RELIGIOUS ORGANIZATIONS
Statements
of births, marriages, divorces, deaths, legitimacy, ancestry, relationship
by blood or marriage, or other similar facts of personal or family history,
contained in a regularly kept record of a religious organization.
(Originally
Adopted 12-3-03; Resolution # 03-12-04; Code 2004)
RULE 814 - MARRIAGE, BAPTISMAL AND SIMILAR CERTIFICATES
A statement
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.
(Originally
Adopted 12-3-03; Resolution # 03-12-04; Code 2004)
RULE 815 - FAMILY RECORDS
Statements
of facts 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.
(Originally
Adopted 12-3-03; Resolution # 03-12-04; Code 2004)
RULE 816 - 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 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.
(Originally
Adopted 12-3-03; Resolution # 03-12-04; Code 2004)
RULE 817 - 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.
(Originally
Adopted 12-3-03; Resolution # 03-12-04; Code 2004)
RULE 818 - STATEMENTS IN ANCIENT DOCUMENTS
Statements
in a document in existence 20 years or more the authenticity of which
is established.
(Originally
Adopted 12-3-03; Resolution # 03-12-04; Code 2004)
RULE 819 - MARKET REPORTS AND 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.
(Originally
Adopted 12-3-03; Resolution # 03-12-04; Code 2004)
RULE 820 - TRIBAL ORAL HISTORY
Statements
of facts derived from the oral traditional histories of the Pit River
Tribe, generally used and relied upon by the adult members of the Pit
River Tribe, or if made by a person certified by the Tribal Council
of the Pit River Tribe as a Tribal Cultural Expert or Tribal Oral Historian.
(Originally
Adopted 12-3-03; Resolution # 03-12-04; Code 2004)
RULE 821 - REPUTATION CONCERNING PERSONAL OR FAMILY HISTORY
Reputation
among members of a person's family by blood, adoption or marriage, or
among a person's associates, or in the community, concerning a person's
birth, adoption, marriage, divorce, death, legitimacy, relationship
by blood or adoption or marriage, ancestry, or other similar fact of
a person's personal or family history.
(Originally
Adopted 12-3-03; Resolution # 03-12-04; Code 2004)
RULE 822 - 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 community, band, or state or nation
in which located. As used herein, "community" includes, without
limitation, any Indian Tribe.
(Originally
Adopted 12-3-03; Resolution # 03-12-04; Code 2004)
RULE 823 - REPUTATION AS TO CHARACTER
Reputation
of a person's character among associates of the person or in the community.
(Originally
Adopted 12-3-03; Resolution # 03-12-04; Code 2004)
RULE 824 - 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 no contest, adjudging a person guilty of a crime
other than a traffic offense, to prove any fact essential to sustain
the judgment, but not including, when offered by the government in a
criminal prosecution for purposes other than impeachment, judgments
against persons other than the accused. The pendency of an appeal may
be shown but does not affect admissibility.
(Originally
Adopted 12-3-03; Resolution # 03-12-04; Code 2004)
RULE 825 - JUDGMENT AS TO PERSONAL, FAMILY OR GENERAL HISTORY O