Home
Back to Table of Contents

Absentee-Shawnee Tribe of Indians of Oklahoma

 

Evidence
Chapter Five. Privileges

Section 501. Privileges Recognized Only as Provided

Section 502. Lawyer-Client Privilege

Section 503. Physician and Psychotherapist--Patient Privilege

Section 504. Husband and Wife Privilege

Section 505. Religious Privilege

Section 506. Political Vote

Section 507. Trade Secrets

Section 508. Secrets of the Tribe Government and Other Official Information: Governmental Privileges

Section 509. Identity of Informer

Section 510. Waiver of Privilege by Voluntary Disclosure

Section 511. Privileged Matter Disclosed Under Compulsion or Without Opportunity to Claim Privilege

Section 512. Comment Upon and Inference From Claim of Privilege; Instruction

AST EVIDENCE Code Section 501
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.

Absentee Shawnee Evidence Code Section 501, AST EVIDENCE Code Section 501

 

 

 




AST EVIDENCE Code Section 502
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 inter vivos 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.

Absentee Shawnee Evidence Code Section 502, AST EVIDENCE Code Section 502

 

 

 




AST EVIDENCE Code Section 503
Section 503. Physician and Psychotherapist--Patient Privilege

(a) Definitions. As used in this section:

(1) A “patient” 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.

Absentee Shawnee Evidence Code Section 503, AST EVIDENCE Code Section 503

 

 

 




AST EVIDENCE Code Section 504
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.

Absentee Shawnee Evidence Code Section 504, AST EVIDENCE Code Section 504

 

 

 




AST EVIDENCE Code Section 505
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.

Absentee Shawnee Evidence Code Section 505, AST EVIDENCE Code Section 505

 

 

 




AST EVIDENCE Code Section 506
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 ballot.

(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.

Absentee Shawnee Evidence Code Section 506, AST EVIDENCE Code Section 506

 

 

 




AST EVIDENCE Code Section 507
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.

Absentee Shawnee Evidence Code Section 507, AST EVIDENCE Code Section 507

 

 

 




AST EVIDENCE Code Section 508
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.

Absentee Shawnee Evidence Code Section 508, AST EVIDENCE Code Section 508

 

 

 




AST EVIDENCE Code Section 509
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.

Absentee Shawnee Evidence Code Section 509, AST EVIDENCE Code Section 509

 

 

 




AST EVIDENCE Code Section 510
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.

Absentee Shawnee Evidence Code Section 510, AST EVIDENCE Code Section 510

 

 

 




AST EVIDENCE Code Section 511
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.

Absentee Shawnee Evidence Code Section 511, AST EVIDENCE Code Section 511

 

 

 




AST EVIDENCE Code Section 512
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.

Absentee Shawnee Evidence Code Section 512, AST EVIDENCE Code Section 512

Home  |   Search  |   Disclaimer  |   Privacy Statement  |   Site Map