[TITLE
II - LAW AND ORDER CODE - SUBPART E] - EVIDENCE
CHAPTER ONE - GENERAL PROVISIONS
Section 101. Scope
This Title
governs evidentiary questions in all proceedings in the Courts of the
Tribes, 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 Tribes, by Act or Ordinance of the Business Committee of the
Tribes, by this Title, or by other rules prescribed by the Supreme Court
of the Tribes pursuant to statutory authority. Evidence which is not
relevant 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 trait of his
character offered by an accused, or by the prosecution to rebut
the same 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 nolo 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 nolo contendere,
or an offer to plead guilty or nolo 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 Tribes,
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
ride 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 Tribes
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 "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.
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
ride 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
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 Tribes.
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 Tribal Government and Other Official
Information: Governmental Privileges
(a) If
the law of the United States creates a governmental privilege that
the courts of these Tribes 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 Tribes, 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 Tribes
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 Tribes 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 Tribes, 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 not 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
Ride. 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.
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.
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 Business 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 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.
(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.
(1) 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 Tribes 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 nolo
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 person, 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 Business 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 Tribes, 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 Business Committee or rule prescribed
by the Supreme Court of the Tribes 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 Business 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 Business 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 that they 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 Tribes and to all other criminal or civil
controversies which are subject to the lawful jurisdiction of the
Courts of the Tribes.
(b) This
Title applies generally to civil