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Yomba Shoshone Tribe Law and Order Code

Approved: 2001

TITLE SIX - EVIDENCE


A. DEFINITIONS


Sec. 1
Evidence

Statements and answers given by a witness, documents, objects, or anything else presented to the senses of the jury, the Judge, or which is judicially noticed


Sec. 2 Impeachment Evidence

Evidence introduced for the purpose of showing that a witness's testimony or other evidence is not to be believed. It may take the form of further evidence contradicting what the witness has said, or evidence that raises questions about the witness's reliability or credibility in general.


Sec. 3
Relevant Evidence

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.


Sec. 4
Natural Person and Person

A human being. The term "person" may also include, when appropriate, a corporation, association, or other organization.


Sec. 5
Presumption

A conclusion required by law to be drawn from certain evidence, in the absence of any conflicting evidence. Any presumption rebutted by a preponderance of the evidence disappears.


Sec. 6
Representative

A person who has been asked by a client to provide legal advice or help in representing the client in front of any official body such as a court or a hearing officer. The work may also include any employee or assistant of such a person.


B. ADMISSIBILITY IN GENERAL


Sec. 1
Relevance

a. All relevant evidence is admissible, except:

(1) as otherwise provided by provisions of the United States Constitution or Federal law that are applicable to the Tribal Court; or,

(2) when excluded by this Title.

b. Evidence which is not relevant is not admissible.


Sec. 2 Objections to Evidence

a. Any party may object to a question asked a witness, or an answer of a witness, or any other piece of evidence presented. If the Judge finds that the evidence is admissible, he shall overrule the objection. If the Judge finds that the evidence is inadmissible, he shall sustain the objection, exclude the evidence, and when appropriate, instruct the jury to disregard any inadmissible evidence that has already been introduced, presented, or otherwise disclosed to the jury.

b. If no objection is made during trial, a ruling of the Tribal Judge as to whether or not to admit a piece of evidence may not be questioned on appeal unless otherwise provided for by this Code.


Sec. 3
Appeals

a. If evidence is offered by one party and objected to by another, the Tribal Judge's decision on whether or not to admit the evidence may be appealed after trial, except that:

(1) A prosecutor in a criminal case may not appeal if the defendant is found not guilty.

(2) No party may appeal a ruling by the Tribal Judge as to the admissibility of evidence unless they are aggrieved by the final decision in the case and assert that the ruling in question is responsible for the final decision complained of.


Sec. 4 Effect of Decision on Appeal

a. If the Appeals Court decides:

(1) that the Tribal Judge's ruling was in error; and,

(2) that the error may have affected the outcome of the case; and,

(3) that the error was not harmless, it may, in a civil case, and shall, in a criminal case, declare the verdict or judgment to be void and without effect. The case shall then be returned to the trial court for a new trial.


Sec. 5
Judicial Notice

In addition to the evidence presented by the parties, the Judge may consider any matter of law or fact which is so generally known in the territorial jurisdiction of the Court that it's not subject reasonable dispute, or any matter of low or fact capable of ready determination from a source whose accuracy cannot be reasonably disputed. The Judge may take judicial notice of any matter of law or fact on the motion of a party or on his own initiative.


C. WITNESSES


Sec. 1 Judge and Jurors as Witnesses

a. The presiding Judge at the trial and the jurors hearing testimony in the trial shall not testify as witnesses in that trial. If any of them testifies at trial, no objection need be made in order to preserve the point for appeal; the Appeals Court shall follow the rules outlined in Chapter B, Section 4.

b. If a party requires the testimony of the Judge in order to properly present his case; he shall request, before trial, that another Judge hear the case. If this request is denied, the party may assert that this denial was in error in an appeal after trial.

c. No person who may be called as a witness in a case shall be seated as a juror in that case. Any juror who is discovered to have relevant evidence after being seated shall be disqualified from continuing as a juror.


Sec. 2
Exclusion of Witnesses

a. Except as otherwise provided, at the request of any party or on his own motion, the Judge shall order witnesses excluded from the courtroom so that they can't hear the testimony of other witnesses.

b. This Section does not authorize exclusion of:

(1) a party who is a natural person who is not and will not be called as a witness;

(2) an officer or employee of a party who is acting for that party before the Court;

(3) the representative of a party;.

(4) a person whose continuing presence is shown by a party to be essential to the presentation of his case; or,

(5) officers or employees of the Court.


Sec. 3 Control by Judge of questioning

a. The Judge shall exercise reasonable control over the presentation of evidence in order to:

(1) determine the truth;

(2) avoid a waste of time; and,

(3) protect witnesses from undue harassment or embarrassment.


Sec. 4 Order of Questioning

a. After a witness has been questioned by the party or parties calling him, the adverse party or parties shall have the right to cross-examine the witness. Cross-examination is limited to to subject matter of the direct examination and matters affecting the credibility of the witness, unless the Judge in the exercise of his discretion permits inquiry into additional matters as if on direct examination. At the completion of cross-examination, the party calling the witness has the right to conduct re-examination, limited to the matters raised in cross-examination. The adverse party may conduct a re-cross-examination limited to those matters raised on redirect examination.

b. The Judge may dispense with the formal order of questioning set out above. Any party may object to this action, and raise this objection on appeal if it is overruled.


Sec. 5
Form of Questioning

a. Leading questions are questions that by their form or content suggest the answer that is desired.

b. Leading questions shall not be used on the direct examination of a witness, except for preliminary matters not in controversy, without the permission of the Judge. The Judge shall liberally grant permission to ask leading questions to children and persons with language problems in the interest of obtaining meaningful testimony from such persons.

c. Leading questions are permitted on cross-examination.

d. In civil cases, a party is entitled to call an adverse party or witness identified with an adverse party, and question by leading questions. The adverse party may then use leading questions in cross-examining such a party or witness only to the extent permissible if he had called such a person on direct examination.


D. EVIDENCE EXCLUDED FOR POLICY REASONS


Sec. 1 Character Evidence

a. 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 with it on a particular occasion, except:

(1) evidence of his character or a trait of his character offered by an accused, and similar evidence offered by the prosecution to rebut such evidence; and,

(2) evidence of the character or a trait of his character of a victim of a crime offered by an accused, and similar evidence offered by the prosecution to rebut such evidence.

b. Evidence of other acts by a party or witness is not admissible to prove that such person acted in conformity with those other acts. Such evidence may, however, be admissible for other purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

c. Evidence of the character of a witness may be offered to attack or support his credibility.


Sec. 2
Subsequent Repairs

a. When, after an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence of these measures is not admissible to prove negligence or culpable conduct in connection with the event.

b. This section doesn't require the exclusion of evidence of subsequent remedial measures when offered to impeach a witness denying ownership, control, or feasibility of precautionary measures.


Sec. 3 Compromises; Offers to Compromise

a. Evidence of any negotiations in compromising or offering to compromise a claim are not admissible to prove the amount of a claim or the validity or invalidity of a claim. Evidence of conduct or statements made in compromise negotiations is likewise not admissible.

b. This Section doesn't require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice of a witness, responding to a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.


Sec. 4 Payment of Medical or Similar Expenses

Evidence of furnishing, or offering or promising to pay medical, hospital, or similar expenses occasioned by an injury is not admissible to prove liability for the injury.


Sec. 5 Offer to Plead "Guilty" or "No Contest"; Withdrawn Guilty Plea

Evidence of a plea of "no contest" or a plea of "guilty", later withdrawn, or of an offer to plead "guilty" or "no contest" is not admissible in any proceeding involving the person who made the plea or offer.


Sec. 6 Liability Insurance

a. Evidence that a person was or was not insured against liability is not admissible upon the issue of whether he acted negligently or otherwise wrongfully.

b. This Section doesn't require the exclusion of evidence of insurance against liability when it is relevant for another purpose, such as proof of agency, ownership or control, bias or prejudice of a witness.


E. STATEMENTS BY PERSON NOT PRESENT - THE HEARSAY RULE


Sec. 1 Definition

Hearsay is the testimony of a witness about the statement of another person who is not available to testify and the statement is offered in evidence to prove the truth about the matter asserted.


Sec. 2
Criminal Cases

a. Hearsay evidence shall be excluded from a criminal case before a jury if the Judge finds:

(1) that the usefulness of the testimony would be outweighed by its possible prejudice; that is if the likelihood of the jury's being misled is greater than the likelihood that the testimony will help them arrive at the truth; or,

(2) that the admission of the testimony would deprive the defendant of the opportunity to confront the witness against him; that is, that it would be unfair to deny to the defendant his right to cross-examination the person whom made the original statement.

b. An exception to the hearsay evidence being excluded from a criminal case before a jury is a "dying declaration". That is, the person who makes the statement appears to have but a few moments to live and makes the statement during these last moments.

c. Any discussion or argument between the Judge and the parties or their representatives concerning admissibility of hearsay shall take place out of the hearing of the jury.

d. In a criminal case tried by the Court, the Judge may, in his discretion, permit hearsay testimony if he believes the ends of justice will be served thereby and the defendant will not be denied his right to confront the witnesses against him.


Sec. 3 Civil Cases

a. In a civil case before a jury where testimony is offered about the statement of another person not available to testify, the Judge shall instruct the jury that they should realize that the person who made the statement is not there to be cross-examined and that they should consider that fact in deciding how much weight to give to the testimony.

b. In a civil case tried by the Court, hearsay evidence, if relevant is admissible, except as otherwise provided in this Title.


F. PRIVILEGES TO EXCLUDE EVIDENCE


Sec. 1
Privileges End at Death

No person may claim a privilege on behalf of a person who is dead.


Sec. 2
Representative - Client Privilege

a. Definitions - The following terms shall have the indicated meanings:

(1) "Client" - A person, including a public officer, or a corporation, association, Tribe or other organization or entity, either public or private, who is given legal or financial advice or representation, or who consults with someone with a view to obtaining such advice or representation.

(2) "Confidential communication to a representative" - A communication that is not intended to be disclosed to anyone except those who would have to know about it in order for the client to receive the advice and/or representation that he is seeking.

b. General rule of privilege - A client has a privilege to refuse to disclose, and to prevent any other person from disclosing, any confidential communication:

(1) between himself and his representative, or his representative's agent;

(2) between two or more of his representatives; or,

(3) between him or his representative and another person or that person's representative in a matter of common interest between him and the other person, as long as the communication is made for the purpose of helping with the representation of the client.

c. Who may claim a privilege:

(1) The privilege may be claimed by the client, his guardian or conservator, or the successor or, trustee, or similar representative of a corporation, association or other organization.

(2) The person who was the representative at the time of the communication may claim the privilege, but only on behalf of the client. His authority to do so is presumed in the absence of evidence to the contrary.

d. Exceptions - There is no representative - client privilege:

(1) if the services of the representative were sought or obtained to enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud.

(2) as to a communication relevant to an issue of breach of duty by the representative to his client or by the client to his representative.

(3) as to communication relevant to an issue concerning a witnessed document which the representative signed as a witness.

(4) as to communication relevant to a matter of common interest between two or more clients, if the communication was made by any of them to a representative retained or consulted in common, when offered in an action between any of the clients.

(5) as to a communication between a corporation, association, or other organization and its representative, in an action against the organization which is based on an alleged breach of fiduciary duty.

(6) as to a communication between a financial advisor and his client when a criminal investigation is being conducted and a subpoena for records, documents, etc., has been issued by the Court or the Prosecutor.


Sec. 3 Health Worker - Patient Privilege

a. Definitions - The following terms shall have the indicated meanings:

(1) "Health worker" - A doctor, dentist, nurse, physical therapist, alcohol, drug or mental health counselor, or any other person who is employed or engaged in the examination, diagnosis, or treatment of people for physical or mental conditions. It also includes any person participating in the examination, diagnosis, or treatment under the direction of the health worker, including when appropriate, members of the patient's family.

(2) "Confidential communication" - Any communication not intended to be disclosed to anyone except for those who would have to know about it for the purpose of furthering the examination, diagnosis, or treatment.

(3) "Patient" - A person who consults or is examined or interviewed by a health worker for purposes of diagnosis or treatment.

b. General rule of privilege - A patient has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications between himself and his health worker.

c. Who may claim privilege - The privilege may be claimed by the patient or by his guardian or conservator. The health worker may claim the privilege but only on behalf of the patient. His authority to do so is presumed in the absence of evidence to the contrary.

d. Exceptions:

(1) If the Judge orders an examination of the condition of the patient, communications made in the course of that examination are not privileged with respect to the purpose for which the examination is ordered, unless the Judge orders otherwise.

(2) There is no privilege under this Title as to communications relevant to an issue of the condition of the patient in any proceeding in which the condition is an element of a claim or defense.

(3) There is no privilege under this Title as to communications which are made as part of an effort to achieve an unlawful result. For example, there is no privilege for communications made to a health worker in an attempt to get the health worker to procure a drug illegally.

(4) There is no privilege under this Title for communications relevant to an issue in proceedings to hospitalize the patient for mental illness, if the health worker has determined that the patient is in need of hospitalization.


Sec. 4
Religious Counseling Privilege

A clergyman, priest, or other religious counselor shall not, without the consent of the person being counseled, be examined as a witness to any confession made to him while he was providing counsel.


Sec. 5 News Reporter's Privilege

No reporter or employee of any newspaper, periodical, press association, or radio or television station may be required to disclose any legal proceeding or investigation or any unpublished information obtained or prepared by such person in gathering, receiving, or processing information for communication to the public, or the source of any information procured or obtained by such person.


Sec. 6
Political Voter's Privilege

Every person has an absolute privilege to refuse to disclose how he voted at a political election conducted by secret ballot,. unless the vote was cast illegally.


Sec. 7
Husband - Wife (Spousal) Privileges

a. A spouse cannot be examined as a witness for or against their spouse without that spouses consent, except as provided below.

b. Neither spouse can be examined during marriage or afterwards, without the consent of the other, as to any communications made by one to the other during the marriage, except as provided below.

c. Exceptions - the privileges set out above do not apply:

(1) in a civil proceeding brought by or on behalf of one spouse against the other spouse;

(2) in a proceeding to commit or otherwise place a spouse or the property of a spouse under the control of another person because of the spouse's mental or physical condition;

(3) in a juvenile proceeding;

(4) in a proceeding brought by or on behalf of a spouse to establish his competence; or,

(5) in a criminal proceeding in which one spouse is charged with:

(a) A crime of domestic violence against the other spouse or a child in the custody of either spouse.

(b) A crime related to abandonment of a child or non-support of a wife or child.

(c) Bigamy or incest.


Sec. 8
Trade Secrets

a. 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.

b. When disclosure is directed, the Judge shall take such protective measures as the interests of the holder of the privilege and of the parties and the furtherance of justice may require.


Sec. 9
Privilege Against Self-Incrimination

a. Criminal defendant's privilege not to testify:

(1) The defendant in a criminal case has the right not to testify and not to produce any personal records. If he testifies voluntarily, he waives this privilege, except that testifying in one hearing does not waive the privilege at another hearing, and testifying upon a preliminary question of fact to determine whether evidence may be admitted (for instance, on the question of whether a confession was voluntary) does not waive the privilege with respect to any other issues.

(2) A defendant may be compelled to submit to fingerprinting, to give blood or urine samples, to speak so that a witness may identify his voice or to stand up for identification.

(a) Any provision of Paragraph (2) of Subsection "a" that is found to be illegal shall automatically be rescinded upon discovery that it has been ruled illegal.

b. Witness's privilege against self-incrimination - Any witness in any proceeding has the right to refuse to disclose any matter that would directly or indirectly implicate the witness in the commission of a crime. The answer need not prove guilt, and the witness need not actually be guilty, as long as there's a reasonable possibility that the answer would be a link in a chain of evidence against the witness. If a witness testifies to a fact that tends to incriminate him, he waives his privilege not to testify as to any other facts relevant to the same transaction, unless he did not know when he disclosed the first fact that it would tend to incriminate him, or unless other circumstances exist which would make it unjust to require the witness to continue testifying against himself.


Sec. 10
Waiver of Privilege

a. A person who has a privilege against disclosure of a confidential matter under this Title waives the privilege if he voluntarily discloses or consents to disclosure of any significant part of the matter.

b. This Section does not apply if the disclosure is itself a privileged communication.


Sec. 11
Privileged Matter Disclosed Without Opportunity to Claim Privilege

a. Evidence of a statement or other disclosure of privileged matter is inadmissible against the holder of the privilege if the disclosure was:

(1) compelled improperly; or,

(2) made without giving the holder of the privilege an opportunity to claim the privilege.

b. Nothing in this Section prohibits the Judge from declaring a mistrial for improper disclosure of privilege information when he considers it necessary to prevent injustice.


Sec. 12
Comment on the Use of Privilege

a. The claim of a privilege is not a proper subject of comment by a party, a representative, or by a judge, except as authorized in this Section.

b. No inference may be drawn from the use of a privilege.

c. Injury cases, a person should be allowed to claim a privilege outside the hearing of the jury, if practical.

d. If a party has claimed a privilege and fears that the jury might draw an inference against him because of it, he is entitled, upon request, to have the Judge instruct the jury that they may not come to any conclusion because of his use of the privilege.


G. BLOOD ALCOHOL TESTS


Sec. 1 Affidavit of Expert as to Presence, Existence of Alcohol, Controlled Substance; Admissibility in Certain Cases

Whenever any person has qualified in a court as an expert witness for the purpose of testifying regarding the presence in a person's blood or urine of alcohol or of a controlled substance, the identity of a controlled substance alleged to have been in the possession of a person, the affidavit of such person is admissible in evidence in a criminal trial in Tribal Court for the purpose of proving the person from whom the affiant received the blood or urine or purported controlled substance for analysis and the presence or absence of alcohol or controlled substance, as the case may be.


Sec. 2 Affidavit of Expert as to Presence. Existence of Alcohol, Controlled Substance; Procedure for Admission

a. Whenever a person is charged with an offense and it's necessary to prove the existence of any alcohol, controlled substance or the identity of a controlled substance, the Tribal Prosecutor may request that the affidavit of a person qualified be admitted into evidence at the trial of the defendant

b. Such request shall be made at least 10 days prior to the date set for such trial and shall be sent to the defendant's counsel and to the defendant by registered or certified mail by the Tribal Prosecutor or the Court Clerk.

c. If such defendant, or his counsel, notifies the Tribal Prosecutor by registered or certified mail at least four (4) days (96 hours) prior to the date set for such trial, that the presence of such person is demanded, the affidavit shall not be admitted.

d. If at the trial, the affidavit of an expert has been admitted in evidence, and it appears to be in the best interest of justice that such expert be examined or cross-examined in person, the Judge may adjourn the trial for a reasonable period of time for the purpose of receiving such testimony. The time within which a trial is required is extended by the time of such adjournment.


Sec. 3
Affidavit of Expert as to Presence, Existence of Alcohol, Controlled Substance; Forms

a. The affidavit shall be substantially in one of the following forms:

(1) If the sample contained a controlled substance:

STATE OF NEVADA )  
  :ss.  
COUNTY OF NYE )  

___________________________, being first duly sworn, deposes and says: That I am (occupation)                ; that on (date)       , I qualified before a _____ judge of the _______ Court as a witness qualified to detect the presence and identify in the blood or urine of a person of a controlled substance the use or possession or the identity of a controlled substance alleged to have been in the possession of a person that on (date)             I obtained certain evidence from bearing Identification No. ___ and consisting of ________ for the purpose of performing a chemical analysis upon the contents thereof; that on (date)       I analyzed such substance or sample and determined it to be or contain (substance)          ; and that on (date    ) I replaced the contents in the above mentioned evidence container, sealed that evidence container with evidence seal(s) bearing my initials ___ and retained said evidence in my sole care and custody from the time it was received until the time I returned such evidence to __________ in substantially the same condition as when it was first obtained by me.

    ____________________
AFFIANT
    ____________________
TITLE

SUBSCRIBED and SWORN to before
me this __day of ___, 20___

 

_______________________________
NOTARY PUBLIC

 

(2) If the sample contained alcohol:

STATE OF NEVADA )  
  :ss.  
COUNTY OF NYE )  

___________________, being first duly sworn, deposes and says: That I am (occupation)    ; that on (date) I qualified before a _____________ judge of the court as a witness qualified to detect the presence of alcohol in the blood or urine of a person; that on (date) , I received a blood or urine sample from (name) ; that on (date) I analyzed such sample and determined that the blood or urine of the person from whom the sample was taken contained                    percent by weight of alcohol; that on (date) I returned such sample to (name) or that I still have such sample in my possession.

    ____________________
AFFIANT
    ____________________
TITLE

SUBSCRIBED and SWORN to before
me this __day of ___, 20___

 

_______________________________
NOTARY PUBLIC

 


H. BLOOD TESTS TO DETERMINE PARENTAGE OR IDENTITY

Whenever it's relevant in a civil or criminal action to determine the parentage or identity of any person or corpse, the Court by Court Order, may direct any party to the action and the person involved in the controversy to submit to one or more blood tests, to be made by qualified physicians or other qualified persons, under such restrictions and directions as the Court or the Judge deems proper. Whenever such test is ordered and made, the results thereof may be received in evidence. The order for the blood tests also may direct that the testimony of the experts and of the persons so examined may be taken by deposition. The opinion of any expert concerning results of blood tests may be weighed in accordance with evidence, if available, of the statistical probability of the alleged blood relationship. The Court shall determine how and by whom the costs of the examination must be paid.

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