A. Definitions
B. Admissibility in General
C. Witnesses
D. Evidence Excluded for Policy Reasons
E. Statements by Person Not Present - The Hearsay Rule
F. Privileges to Exclude Evidence
G. Blood Alcohol Tests
H. Blood Tests to Determine Parentage or Identity
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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