FOR THE BLUE LAKE RANCHERIA TRIBAL COURT

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RULES OF EVIDENCE

FOR THE BLUE LAKE RANCHERIA TRIBAL COURT

Section 11.1.1040c.1(a) of the Tribal Court Ordinance of the Blue Lake Rancheria (“Tribe”) authorizes

the Chief Judge of the Tribal Court for the Tribe, in consultation with the Business Council of the Tribe (“Tribal

Council”), to “promulgate rules of pleading, practice and procedure applicable to any and all proceedings of the

Tribal Court.” The following rules are adopted to govern the conduct of Tribal Court Clerks in the administration

and performance of their duties for the Court.

Except as otherwise provided by these Rules, the following Rules of Evidence shall apply to every action

before the Tribal Court of the Tribe.

CHAPTERS:

Definitions

General Provisions

Judicial Notice

Burden of Proof

Witnesses

Opinion Testimony and Scientific Evidence

Privileges

Evidence Affected or Excluded by Extrinsic Policies

Hearsay Evidence

Writings

Chapter 1

Definitions

Rule:

Application of Definitions

Burden of Producing Evidence

Burden of Proof

Civil Action

Conduct

Declarant

Evidence

Proof

Public Employee

Public Entity

Relevant Evidence

State

Statement

Tribe

Unavailable as a Witness

Writing

Rule 1. Application of Definitions.

Unless the provision or context otherwise requires, these definitions govern the construction of these Rules.

Rule 2. Burden of Producing Evidence.

“Burden of producing evidence”, means the obligation of a party to introduce evidence sufficient to avoid a ruling

against that party on the issue.

Rule 3. Burden of Proof.

“Burden of proof”, means the obligation of a party to establish by evidence a requisite degree of belief concerning

a fact in the mind of the trier of fact or the court. The burden of proof may require a party to raise a reasonable

doubt concerning the existence or non-existence of a fact or that he/she establish the existence or non-existence of

a fact by a preponderance of the evidence, by clear and convincing proof, or by proof beyond a reasonable doubt.

Except as otherwise provided by these rules, the burden of proof requires proof by a preponderance of the

evidence.

Rule 4. Civil Action.

“Civil action”, includes all civil proceedings of every kind.

Rule 5. Conduct.

“Conduct”, includes all active and passive behavior, both verbal and non-verbal.

Rule 6. Declarant.

“Declarant” is a person who makes a statement

Rule 7. Evidence.

“Evidence” means testimony, writings, material objects, or other things presented to the senses that are offered to

prove the existence or non-existence of a fact.

Rule 8. Proof.

“Proof” is the establishment by evidence of a requisite degree of belief concerning a fact in the mind of the trier of

fact or the court.

Rule 9. Public Employee.

“Public employee”, means an officer, agent or employee of a public entity.

Rule 10. Public Entity.

“Public entity”, includes a tribe, nation, state, county, city and county, city, district, public authority, public

agency, or any other political subdivision or public corporation, whether foreign or domestic.

Rule 11. Relevant Evidence.

“Relevant evidence”, means evidence, including evidence relevant to the credibility of a witness or hearsay

declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the

determination of the action.

Rule 12. State.

“State”, means any state, district, commonwealth, territory, or insular possession of the United States.

Rule 13. Statement.

“Statement” means;

(a) an oral or written verbal expression or;

(b) non-verbal conduct of a person intended by him/her as a substitute for oral or written verbal

expression.

Rule 14. Tribe.

“Tribe”, means an Indian Tribe, band, nation, or other organized group or community which is recognized as

eligible for services provided by the United States because of their status as an Indian Tribe.

Rule 15. Unavailable as a Witness.

(a) Except as otherwise provided in subdivision (b) below, “unavailable as a witness”, means that the

declarant is;

(1) Exempted or precluded on the ground of privilege from testifying concerning the matter to

which his/her statement is relevant;

(2) Disqualified from testifying to the matter;

(3) Dead or unable to attend or to testify at the hearing because of then existing physical or

mental illness or infirmity;

(4) Absent from the hearing and the court is unable to compel his/her attendance by its process;

(5) Absent from the hearing and the proponent of his/her statement has exercised reasonable

diligence but has been unable to procure his/her attendance by the court’s process.

(b) A declarant is not unavailable as a witness if the exemption, preclusion, disqualification, death,

inability, or absence of the declarant was brought about by the procurement or wrongdoing of the

proponent of his/her statement for the purpose of preventing the declarant from attending or testifying.

Rule 16. Writing.

“Writing”, means handwriting, typewriting, printing, photocopying, Photostatting, photographing, and every other

means of recording upon any tangible thing any form of communication or representation, including letters,

words, pictures, sounds, or symbols, or combinations thereof.

Chapter 2

General Provisions

Rule:

Questions of Law for Court

Jury as Trier of Fact

Power of Court to Regulate Order of Proof

Only Relevant Evidence Admissible

Admissibility of Relevant Evidence

Discretion of Court to Exclude Evidence

Effect of Erroneous Admission of Evidence

Effect of Erroneous Exclusion of Evidence

Entire Act, Declaration, Conversation or Writing May Be

Brought Out to Elucidate Part Offered

Preliminary Fact

Proffered Evidence

Procedure for Determining Foundational and Other Preliminary Facts Where Relevancy,

Personal Knowledge, or Authenticity is Disputed

Determination of Foundational and Other Preliminary Facts Where Relevancy, Personal

Knowledge, or Authenticity is Disputed

Determination of Whether Proffered Evidence is Incriminatory

Direct Evidence

Direct Evidence of One Witness Sufficient

Party’s Failure to Explain or Deny Evidence

Judicial Notice May Be Taken Only as Authorized by These Rules

Matters Which Must Be Judicially Noticed

Matters Which May Be Judicially Noticed

Compulsory Judicial Notice Upon Request

Information That May Be Used in Taking Judicial Notice

Noting for Record Denial of Request to Take Judicial Notice

Judicial Notice by Tribal court in Subsequent Proceedings

Rule 17. Questions of Law for Court.

All questions of law (including but not limited to questions concerning the construction of tribal, state or

federal laws and other writings, the admissibility of evidence, and other rules of evidence) are to be

decided by the court. Determination of issues of fact preliminary to the admission of evidence are to be

decided by the court as provided in these Rules.

Rule 18. Jury as Trier of Fact.

Except as otherwise provided by applicable Federal or Tribal Law or these Rules where the trial is by

jury:

(a) All questions of fact are to be decided by the jury.

(b) Subject to the control of the court, the jury is to determine the effect and value of the evidence

addressed to it, including the credibility of witnesses and hearsay declarants.

Rule 19. Power of Court to Regulate Order of Proof.

Except as otherwise provided by applicable Federal or Tribal Law, the court in its discretion shall regulate

the order of proof.

Rule 20. Only Relevant Evidence Admissible.

No evidence is admissible except relevant evidence.

Rule 21. Admissibility of Relevant Evidence.

Except as otherwise provided by applicable Federal or Tribal Law or these Rules, all relevant evidence is

admissible.

Rule 22. Discretion of Court to Exclude Evidence.

The court in its discretion may exclude evidence if its probative value is substantially outweighed by the

probability that its admission will;

(a) necessitate undue consumption of time; or

(b) create a substantial danger of undue prejudice, of confusing the issues, or of misleading the

jury.

Rule 23. Effect of Erroneous Admission of Evidence.

A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed,

by reason of the erroneous admission of evidence unless;

(a) There appears of record an objection to or a motion to exclude or to strike the evidence that

was timely made and so stated as to make clear the specific ground of the objection or

motion; and

(b) The court which passes upon the effect of the error or errors is of the opinion that the

admitted evidence should have been excluded on the ground stated and that the error or errors

complained of resulted in a miscarriage of justice.

Rule 24. Effect of Erroneous Exclusion of Evidence.

A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed,

by reason of the erroneous exclusion of evidence unless the court which passes upon the effect of the

error or errors is of the opinion that the error or errors complained of resulted in a miscarriage of justice

and it appears of record that:

(a) The substance, purpose, and relevance of the excluded evidence was made known to the court

by the questions asked, an offer of proof, or by any other means;

(b) The rulings of the court made compliance with subdivision futile; or

Rule 25. Entire Act, Declaration, Conversation, or Writing May Be Brought Out to Elucidate Part

Offered.

Where part of an act, declaration, conversation, or writing is given in evidence by one party, the whole on

the same subject may be inquired into by an adverse party; when a letter is read, the answer may be given;

and when a detached act, declaration, conversation, or writing is given in evidence, any other act,

declaration, conversation, or writing which is necessary to make it understood may also be given in

evidence.

Rule 26. Preliminary Fact.

As used in these Rules, “preliminary fact” means a fact upon the existence or non-existence of which

depends the admissibility or inadmissibility of evidence. The phrase “the admissibility or inadmissibility

of evidence” includes the qualification or disqualification of a person to be a witness and the existence or

non-existence of a privilege.

Rule 27. Proffered Evidence.

As used in these Rules, “proffered evidence” means evidence, the admissibility or inadmissibility of

which is dependent upon the existence or non-existence of a preliminary fact.

Rule 28. Procedure for Determining Foundational and Other Preliminary Facts.

(a) When the existence of a preliminary fact is disputed, its existence or non-existence shall be

determined as provided in this Rule.

(b) In the case of a jury trial, the court may hear and determine the question of the admissibility of

evidence out of the presence or hearing of the jury.

separate or formal finding is unnecessary unless required by law or else by these Rules.

Rule 29. Determination of Foundational and Other Preliminary Facts Where Relevancy, Personal

Knowledge, or Authenticity is Disputed.

(a) The proponent of the proffered evidence has the burden of producing evidence as to the existence

of the preliminary fact, and the proffered evidence is inadmissible unless the court finds that

there is evidence sufficient to sustain a finding of the existence of the preliminary fact, when;

(1) The relevance of the proffered evidence depends on the existence of the preliminary fact;

(2) The preliminary fact is the personal knowledge of a witness concerning the subject matter of

his/her testimony;

(3) The preliminary fact is the authenticity of a writing;

(4) The proffered evidence is of a statement or other conduct of a particular persona and the

preliminary fact is whether that person made the statement or so conducted himself/herself.

Rule 30. Determination of Whether Proffered Evidence is Incriminatory.

Whenever the proffered evidence is claimed to be privileged under these Rules, the person claiming the

privilege has the burden of showing that the proffered evidence might tend to incriminate him/her; and the

proffered evidence is inadmissible unless it clearly appears to the court that the proffered evidence cannot

possibly have a tendency to incriminate the person claiming the privilege.

Rule 31. Direct Evidence.

As used in this chapter, “direct evidence”, means evidence that directly proves a fact, without an

inference or presumption, and which in itself, if true, conclusively establishes that fact.

Rule 32. Direct Evidence of One Witness Sufficient.

Except where additional evidence is required by law or these Rules, the direct evidence of one witness

who is entitled to full credit is sufficient for proof of any fact.

Rule 33. Party’s Failure to Explain or Deny Evidence.

In determining what inferences to draw from the evidence or facts in the case against a party, the trier of

fact may consider, among other things, the party’s failure to explain or to deny by his/her testimony such

evidence or facts in the case against him/her, or his/her willful suppression of evidence relating thereto, if

such be the case.

Rule 34. Judicial Notice May Be Taken Only As Authorized By These Rules.

Judicial notice may not be taken of any matter unless authorized or required by these rules.

Rule 35. Matters Which Must Be Judicially Noticed.

Judicial notice shall be taken of:

(a) The decisional, constitutional and statutory law of the Tribe, a state and the United States.

(b) Rules of Pleading, Practice, and Procedure prescribed by the Tribal Court, United States

Supreme Court, such as the Rules of the United States Supreme Court, the Federal Rules of

Civil Procedure, the Federal Rules of Criminal Procedure, the Admiralty Rules, the Rules of

the Court of Claims, the Rules of the Customs Court, and the General Orders and Forms in

Bankruptcy.

(d) The official membership role of any Indian Tribe.

(e) Facts and propositions of generalized knowledge that are so universally known that they

cannot reasonably be the subject of dispute.

Rule 36. Matters Which May Be Judicially Noticed.

Judicial notice may be taken of the following matters to the extent that they are not embraced within Rule

35:

(a) The decisional, constitutional, and statutory law of any Tribe, state of the United States or

public entity and the resolutions and private acts of the Congress of the United States and of

the legislature of any state.

(b) Regulations and legislative enactments issued by or under the authority of the United States,

Tribe or any public entity.

Tribe or of any state of the United States.

(d) Records of any court of record of the United States, of any Tribe, or of any state of the United

States.

(e) Rules of court of the United States, any Tribe or of any state of the United States.

(f) The law of an organization of nations and of foreign nations and public entities in foreign

nations.

(g) Facts and propositions that are not reasonably subject to dispute and are capable of immediate

and accurate determination by resort to sources of reasonably indisputable accuracy.

Rule 37. Compulsory Judicial Notice Upon Request.

The Tribal Court shall take judicial notice of any matter specified in Rule 36 if a party requests it and:

(a) Gives each adverse party sufficient notice of the request, through the pleadings or otherwise,

to enable such adverse party to prepare to meet the request; and

(b) Furnishes the court with sufficient information to enable it to take judicial notice of the

matter.

Rule 38. Information That May Be Used in Taking Judicial Notice.

(a) In determining the propriety of taking judicial notice of a matter, or the tenor thereof:

(1) Any source of pertinent information, including the advice of persons learned in the subject

matter, may be consulted or used, whether or not furnished by a party.

(2) Exclusionary rules of evidence do not apply except for Rule 22 and the Rules of Privilege.

(b) Where the subject of judicial notice is the law of an organization of nations, a foreign nation, or a

public entity in a foreign nation and the court resorts to the advice of persons learned in the subject

matter, such advice, if not received in open court, shall be in writing.

of persons learned in the subject matter, such information and its source shall be made a part of the

record in the action and the court shall afford each party reasonable opportunity to meet such

information before judicial notice of the matter may be taken.

Rule 39. Noting for Record Denial of Request to Take Judicial Notice.

If the trial court denies a request to take judicial notice of any matter, the court shall at the earliest

practicable time so advise the parties and indicate for the record that it has denied the request.

Rule 40. Judicial Notice by Trial Court in Subsequent Proceedings.

The failure or refusal of the trial court to take judicial notice of a matter does not preclude the trial court

in subsequent proceedings in the action from taking judicial notice of the matter in accordance with the

procedure specified in this division.

Chapter 3

Burden of Proof, Burden of Producing Evidence; Presumptions and Interferences

Rule:

Party Who Has The Burden of Proof

Claim That a Person Guilty of Crime or Wrongdoing

Claim That a Person Did Not Exercise Care

Claim That a Person Is or Was Insane

Party Who Has the Burden of Producing Evidence

Presumption and Interference Denied

Classification of Presumption

Effect of Presumption Affecting Burden of Producing Evidence

Effect of Presumption Affecting Burden of Proof

Conclusive Presumption

Legitimacy

Facts Recited in Written Instruments

Estoppel By Own Statement or Conduct

Presumption Affecting The Burden of Producing Evidence

Money Delivered By One to Another

Thing Delivered By One to Another

Ownership of Things Possessed

Writing Truly Dated

Letter Received In Ordinary Course of Mail

Authenticity of Ancient Document

Legitimacy

Owner of Legal Title to Property Is Owner of Beneficial Title

Death of Person Not Heard From in Seven Years

Rule 41. Party Who Has the Burden of Proof

Except as otherwise provided by Tribal or Federal Law or these Rules, a party has the burden of proof as

to each fact the existence or non-existence of which is essential to the claim for relief or defense that

he/she is asserting.

Rule 42. Claim That Person Guilty of Crime or Wrongdoing.

The party claiming that a person is guilty of crime or wrongdoing has the burden of proof on that issue.

Rule 43. Claim That Person Did Not Exercise Care.

The party claiming that a person did not exercise a requisite degree of care has the burden of proof on that

issue.

Rule 44. Claim That Person Is or Was Insane

The party claiming that a person did not exercise a requisite degree of care has the burden of proof on that

issue.

Rule 45. Party Who Has the Burden of Producing Evidence

(a) the burden of producing evidence as to a particular fact is on the party against whom a finding on that

fact would be required in the absence of further evidence.

(b) The burden of producing evidence as to a particular fact is initially on the party with the burden of

proof as to that fact.

Rule 46. Presumption and Interference Defined

(a) A presumption is an assumption of fact that the law requires to be made from another fact or group of

facts found or otherwise established in the action. A presumption is not evidence.

(b) An inference is a deduction of fact that may logically and reasonably be drawn from another fact or

group of facts found or otherwise established in the action.

Rule 47. Classification of Presumptions

A presumption is either conclusive or rebuttable. Every rebuttable presumption is either;

(a) a presumption affecting the burden of producing evidence, or

(b) a presumption affecting the burden of proof.

Rule 48. Effect of Presumption Affecting Burden of Producing Evidence

The effect of a presumption affecting the burden of producing evidence is to require the trier of fact to

assume the existence of the presumed fact unless and until the evidence is introduced which would

support a finding or its non-existence, in which case the trier of fact shall determine the existence or nonexistence of the presumed fact from the evidence and without regard to the presumption. Nothing in this

section shall be construed to prevent the drawing of any interference that may be appropriate.

Rule 49. Effect of Presumption Affecting Burden of Proof

The effect of a presumption affecting the burden of proof is to impose upon the party against whom it

operates the burden of proof as to the non-existence of the presumed fact.

Rule 50. Conclusive Presumptions

The presumptions established by this Chapter, and all other presumptions declared by Tribal Law or these

Rules to be conclusive, are conclusive presumptions.

Rule 51. Legitimacy

Notwithstanding any other provision of law, the children of a wife cohabitating with her husband, who is

not impotent, is conclusively presumed to be legitimate.

Rule 52. Facts Recited in Written Instrument

The facts recited in a written instrument are conclusively presumed to be true as between the parties

thereto, or their successors in interest; but this rule does not apply to the recital of a consideration.

Rule 53. Estoppel By Own Statement or Conduct

Whenever a party has, by his/her own statement or conduct, intentionally and deliberately led another to

believe a particular thing is true and to act upon such belief, he/she is not, in any litigation arising out of

such statement or conduct, permitted to contradict it.

Rule 54. Presumptions Affecting the Burden of Producing Evidence.

The presumptions established by this Chapter are presumptions affecting the burden of producing

evidence.

Rule 55. Money Delivered by One to Another

Money delivered by one to another is presumed to have been due to the latter.

Rule 56. Think Delivered by One to Another

A thing delivered by one to another is presumed to have belonged to the latter.

Rule 57. Ownership of Things Possessed

The things which a person possesses are presumed to be owned by him/her.

Rule 58. Writing Truly Dated

A writing is presumed to have been truly dated.

Rule 59. Letter Received in Ordinary Course of Mail.

A letter correctly addressed and properly mailed is presumed to have been received in the ordinary course

of mail.

Rule 60. Authenticity of Ancient Document

A deed or will or other writing purporting to create, terminate, or affect an interest in real or personal

property is presumed to be authentic if it:

(a) Is at least 30 years old;

(b) Is in such condition as to create no suspicion concerning its authenticity;

be likely to be kept or found; and

(d) Has been generally acted upon as authentic by persons having an interest in the

matter.

Rule 61. Legitimacy

A child of a woman who is or has been married, born during the marriage or within 300 days after the

dissolution thereof, is presumed to be a legitimate child of that marriage. This presumption may be

disputed only by the husband of the wife, or the descendant of one or both of them. In a civil action, this

presumption may be rebutted only by clear and convincing proof.

Rule 62. Owner of Legal Title to Property is Owner of Beneficial Title.

The owner of the legal title to property is presumed to be the owner of the full beneficial title. This

presumption may be rebutted only by clear and convincing proof.

Rule 63. Death of Person Not Heard From in Seven Years

A person not heard from in seven year is presumed to be dead.

Chapter 4

Witnesses

Rule:

General Rules As To Competency

Disqualification of Witness

Personal Knowledge of Witness

Judge as Witness

Oath Required

Confrontation of Witness

Qualification As An Expert Witness

Cross-Examination of Expert Witness

Credibility of Expert Witness

Appointment of Expert by Court

Calling and Examining Court Appointed Expert

100

101

102

103

104

Rules Relating to Witnesses Apply to Interpreters

Oath Required of Interpreters and Translators

Interpreters for Witnesses

Translators of Writings

Direct Examination

Cross-Examination

Redirect Examination

Recross-Examination

Leading Question

Court to Control Mode of Examination

Responsive Answers

Leading Questions

Writing

Evidence of Inconsistent Statement of Witness

Production of Writing Used to Refresh Memory

Order of Examination

Cross-Examination

Re-Examination

Court May Call Witnesses

Examination of Adverse Party of Witness

Exclusion of Witnesses

Recall of Witnesses

General Rule As To Credibility

Parties May Attached or Support Credibility

Character Evidence Generally

Specific Instances of Conduct

Prior Felony Conviction

Religious Belief

Good Character of Witness

Prior Consistent Statement of Witness

Rule 64. General Rule As To Competency

Except as otherwise provided by these Rules or Tribal Law, every person is qualified to be a witness and

no other person is disqualified to testify to any matter.

Rule 65. Disqualification of Witness

A person is disqualified to be a witness if he/she is;

(a) Incapable of expressing himself/herself concerning the matter so as to be understood, either

directly or through interpretation by one who can understand him/her; or

(b) Incapable of understanding the duty of a witness to tell the truth.

Rule 66. Personal Knowledge of Witness

(a) Subject to Rule 106, the testimony of a witness concerning a particular matter is inadmissible

unless he/she has personal knowledge of the matter. Against the objection of a party, such

personal knowledge must be shown before the witness may testify concerning the matter

(b) A witness’s personal knowledge of a matter may be shown by any otherwise admissible

evidence, including his/her own testimony.

Rule 67. Judge as Witness

(a) Before the judge presiding at the trial of an action may be called to testify in the trial as a

witness, he/she shall, in proceedings held out of the presence and hearing of the jury, inform

the parties of the information he/she has concerning any fact or matter about which he/she

will be called to testify.

(b) Against the objection of a party, the judge presiding at the trial of an action may not testify in

that trial as a witness. Upon such objection, the judge shall declare a mistrial and order the

action assigned for tribal before another judge.

a consent to the granting of a motion for mistrial, and an objection to such calling of a judge

shall be deemed a motion for mistrial.

(d) In the absence of objection by a party, the judge presiding at the trial of an action may testify

in that trial as a witness.

Rule 68. Oath Required

Every witness before testifying shall take an oath or make an affirmation or declaration in the form

established by the Chief Judge of the Tribal Court for that purpose.

Rule 69. Confrontation

At the trial of an action, a witness can be heard only in the presence and subject to the examination of all

the parties to the action, if they choose to attend and examine.

Rule 70. Qualification As An Expert Witness

(a) A person is qualified to testify as an expert if he/she has special knowledge, skill experience,

training, or education sufficient to qualify him/her as an expert on the subject to which his/her

testimony relates. Against the objection of a party, such special knowledge, skill, experience,

training, or education must be shown before the witness may testify as an expert.

(b) A witness’s special knowledge, skill, experience, training, or education may be shown by any

otherwise admissible evidence, including his/her own testimony.

Rule 71. Cross-Examination of Expert Witness

(a) Subject to subdivision (b), a witness testifying as an expert may be cross-examined to the

same extent as any other witness and, in addition, may be fully cross-examined as to;

(1) his/her qualifications,

(2) the subject to which his/her expert testimony relates, and

(3) the matter upon which his/her opinion is based and the reasons for his/her opinion.

(b) If a witness testifying as an expert testifies in the form of an opinion, he/she may not be

cross-examined in regard to the content or tenor of any scientific, technical, or professional

text, treatise, journal, or similar publication unless;

(1) The witness referred to, considered, or relied upon such publication in arriving at or

forming his/her opinion; or

(2) Such publication has been admitted into evidence.

Rule 72. Credibility of Expert Witness

The compensation and expenses paid or to be paid to an expert witness by the party calling his/her is a

proper subject of inquiry by any adverse party as relevant to the credibility of the witness and the weight

of his/her testimony.

Rule 73. Appointment of Expert by Court

When it appears to the court, at any time before or during the trial of an action, that expert evidence is or

may be required by the court or by any party to the action, the court on its own motion or on motion of

any party may appoint one or more experts to investigate, to render a report as may be ordered by the

court, and to testify as an expert at the trial of the action relative to the fact or matter as to which such

expert evidence is or may be required. The court may fix the compensation for such services, if any,

rendered by any person appointed under this Rule, in addition to any service as a witness, at such amount

as seems reasonable to the court subject to those amounts being appropriated and approved by the Tribal

Council in the Tribal Court’s budget.

Rule 74. Calling and Examining Court-Appointed Expert

Any expert appointed by the court under Rule 73 may be called and examined by the court or by any

party to the action. When such witness is called and examined by the court, the parties shall have the

right to cross-examine the witness and to object to the questions asked and the evidence adduced.

Rule 75. Rules Relating to Witnesses Apply to Interpreters and Translators

A person who serves as an interpreter or translator in any action is subject to all the rules of evidence

relating to witnesses.

Rule 76. Oath required of Interpreters and Translators

(a) An interpreter shall take an oath that he/she will make a true interpretation to the witness in a

language that the witness understands and that he/she will make a true interpretation of the

witness’s answers to question to counsel, court, or jury, in the English language, with his/her

best skill and judgment.

(b) A translator shall take an oath that he/she will make a true translation in the English language

of any writing he/she is to decipher or translate.

Rule 77. Interpreters for Witnesses

(a) When a witness is incapable of hearing or understanding the English language or is incapable

of expressing himself/herself in the English language so as to be understood directly by

counsel, court, and jury, an interpreter whom he/she can understand and who can understand

him/her shall be sworn to interpret for him/her.

(b) The interpreter may be appointed by the Chief Judge and compensation by the party

requesting the interpreter or by the Court in such an amount as the Tribal Council of the Tribe

shall establish by resolution provided there are sufficient funds available in the Tribal Court

budget for this purpose.

Rule 78. Translators of Writings

When the written characters in a writing offered in evidence are incapable of being deciphered or

understood directly, a translator who can decipher the characters or understand the language may be

sworn to decipherer or translator of the writing. The party seeking to introduce the writing into evidence

shall pay for the costs or fees of the translator to decipher the writing.

Rule 79. Direct Examination

“Direct examination” is the first examination of a witness upon a matter that is not within the scope of a

previous examination of the witness.

Rule 80. Cross-Examination

“Cross-examination” is the examination of a witness by a party other than the direct examiner upon a

matter that is within the scope of the direct examination of the witness.

Rule 81. Redirect Examination

“Redirect examination”, is an examination of a witness by the direct examiner subsequent to the crossexamination of the witness.

Rule 82. Recross-Examination

“Recross-examination”, is an examination of a witness by a cross-examiner subsequent to a redirect

examination of the witness.

Rule 83. Leading Question

A “leading question” is a question that suggests to the witness the answer hat the examining party desires.

Rule 84. Court to Control Mode of Examination

The court shall exercise reasonable control over the mode of examination of a witness so as,

(a) to make such examination as rapid, as distinct, and as effective for the ascertainment of the

truth, as may be, and

(b) to protect the witness from undue harassment or embarrassment.

Rule 85. Responsive Answers

A witness must give responsive answers to questions, and answers that are not responsive shall be

stricken on motion of any party.

Rule 86. Leading Questions.

Except under special circumstances where the interests of justice otherwise require:

(a) A leading question may not be asked of a witness on direct or redirect examination

(b) A leading question may be asked of a witness on cross-examination or recross-examination.

Rule 87. Writings

(a) In examining a witness concerning a writing, it is not necessary to show, read, or disclose to

him/her any part of the writing.

(b) If a writing is shown to a witness, all parties to the action must be given an opportunity to

inspect it before any questions concerning it may be asked of the witness.

Rule 88. Evidence of Inconsistent Statement of Witness

Unless the interests of justice otherwise require, extrinsic evidence of a statement made by a witness that

is inconsistent with any part of his/her testimony at the hearing shall be excluded unless;

(a) The witness was so examined while testifying as to give him/her an opportunity to explain or

to deny the statement; or

(b) The witness has not been excused from giving further testimony of the action.

Rule 89. Production of Writing Used to Refresh Memory

(a) Subject to subdivision (c), if a witness, either while testifying or prior thereto, uses a writing

to refresh his/her memory with respect to any matter about which he/she testifies, such

writing must be produced at the hearing at the request of an adverse party and, unless the

writing is so produced, the testimony of the witness concerning such matter shall be stricken.

(b) If the writing is produced at the hearing, the adverse party may, if he/she chooses, inspect the

writing, cross-examine the witness concerning it, and introduce in evidence such portion of it

as may be pertinent to the testimony of the witness.

the writing;

(1) Is not in the possession or control of the witness or the party who produced his/her

testimony concerning the matter; and

(2) Was not reasonably procurable by such party through the use of the court’s process

or other available means.

Rule 90. Order of Examination

(a) The examination of a witness shall proceed in the following phases: direct examination,

cross-examination, redirect examination, recross-examination, and continuing thereafter by

redirect and recross-examination.

(b) Unless for good cause the court otherwise directs, each phase of the examination of a witness

must be concluded before the succeeding phase begins.

examination, or recross-examination of a witness, in order to examine the witness upon a

matter not within the scope of a previous examination of the witness.

Rule 91. Cross-Examination

(a) A witness examined by one party may be cross-examined upon any matter within the scope

of the direct examination by each other party to the action in such order as the court directs.

(b) The cross-examination of a witness by any party whose interest is not adverse to the party

calling him/her is subject to the same rules that are applicable to the direct examination.

Rule 92. Re-Examination

A witness once examined cannot be re-examined as to the same matter without leave of the court, but

he/she may be re-examined as to any new matter upon which he/she has been examined by another party

to the action. Leave may be granted or withheld in the court’s discretion.

Rule 93. Court May Call Witnesses

The court, on its own motion or on the motion of any party, may call witnesses and examine them the

same as if they had been produced by a party to the action, and the parties may object to the questions

asked and the evidence adduced the same as if such witnesses were called and examined by an adverse

party. Such witnesses may be cross-examined by all parties to the action in such order as the court

directs.

Rule 94. Examination of Adverse Party or Witness

(a) A party of record to any civil action, or a person identified with such a party, may be called

and examined as if under cross-examination by any adverse party at any time during the

presentation of evidence by the party calling the witness.

(b) A witness examined by a party under this Rule may be cross-examined by all other parties to

the action in such order as the court directs; but the witness may be examined only as if under

redirect examination by;

(1) In the case of a witness who is a party, his/her own counsel and counsel for a party

who is not adverse to the witness.

(2) In the case of a witness who is not a party, counsel for the party with whom the

witness is indentified and counsel for a party who is not adverse to the party with

whom the witness is identified.

single party.

(d) For the purpose of this Rule, a person is identified with a party if he/she is;

(1) A person for whose immediate benefit the action is prosecuted or defended by the

party.

(2) A director, officer, superintendent, member, agent, employee or managing agent of

the party or of a person specified in paragraph (1), or any public employee of the

Tribe or a public entity when such public entity is the party.

(3) A person who was in any of the relationships specified in paragraph (2) at the time

he/she obtained knowledge of the matter concerning which he/she is sought to be

examined under this section.

Rule 95. Exclusion of Witness

(a) Subject to subdivision (b) and (c), the court may exclude from the courtroom any witness not

at the time under examination so that such witness cannot hear the testimony of other

witnesses.

(b) A party to the action cannot be excluded under this section.

designated by its attorney is entitled to be present.

Rule 96. Recall of Witness

After a witness has been excused from giving further testimony in the action, he/she cannot be recalled

without leave of the court. Leave may be granted or withheld in the court’s discretion.

Rule 97. General Rule As To Credibility

Except as otherwise provided by these Rules or Tribal Law, the court or jury may consider in determining

the credibility of a witness any matter that has any tendency in reason to prove or disprove the

truthfulness of his/her testimony at the hearing, including but not limited to any of the following;

(a) His/her demeanor while testifying and the manner in which he/she testifies.

(b) The character of his/her testimony.

which he/she testifies.

(d) The extent of his/her opportunity to perceive any matter about which he/she testifies.

(e) His/her character for honesty or veracity or their opposites.

(f) The existence or non-existence of a bias, interest, or other motive.

(g) A statement previously made by him/her that is inconsistent with his/her testimony at the

hearing.

(h) A statement made by him/her that is inconsistent with his/her testimony at the hearing

(i) A statement made by him/her that is inconsistent with any part of his/her testimony at the

hearing.

(j) The existence or non-existence of any fact testified to by him/her.

(k) His/her attitude toward the action in which he/she testifies or toward the giving of testimony.

(l) His/her admission of untruthfulness.

Rule 98. Parties May Attack or Support Credibility

The credibility of a witness may be attacked or supported by any party, including the party calling

him/her.

Rule 99. Character Evidence Generally

Evidence of traits of his/her character other than honesty or veracity, or their opposites, is admissible to

attack or support the credibility of a witness.

Rule 100. Specific Instances of Conduct

Subject to Rule 101, evidence of specific instances of his/her conduct relevant only as tending to prove a

trait of his/her character is inadmissible to attack or support the credibility of a witness.

Rule 101. Prior Felony Conviction

For the purpose of attacking the credibility of a witness, it may be shown by the examination of the

witness or by the record of the judgment that he/she has been convicted of a felony unless;

(a) A pardon based on his/her innocence has been granted to the witness by the jurisdiction in

which he/she was convicted.

(b) The conviction was under the laws of another jurisdiction and the witness has been relieved

of the penalties and disabilities arising form the conviction pursuant to a procedure

established by law in that jurisdiction.

Rule 102. Religious Belief

Evidence of his/her religious belief or lack thereof is admissible to attack or support the credibility of a

witness.

Rule 103. Good Character of Witness

Evidence of the good character of a witness is inadmissible to support his/her credibility unless evidence

of his/her bad character has been admitted for the purpose of attacking his/her credibility.

Rule 104. Prior Consistent Statement of Witness

Evidence of a statement previously made by a witness that is consistent with his/her testimony at the

hearing is inadmissible to support his/her credibility unless it is offered after;

(a) Evidence of a statement made by him/her that is inconsistent with any part of his/her

testimony at the hearing has been admitted for the purpose of attacking his/her credibility,

and the statement was made before the alleged inconsistent statement; or

(b) An express or implied charge has been made that his/her testimony at the hearing is recently

fabricated or is influenced by bias or other improper motive, and the statement was made

before the bias, motive for fabrication, or other improper motive is alleged to have arisen.

Chapter 5

Opinion Testimony and Scientific Evidence

Rule:

105

Opinion Testimony by Law Witness

106

Opinion Testimony by Expert Witness

107

Statement of Basis of Opinion

108

Opinion Based on Improper Matter

109

Opinion Based on Opinion or Statement of Another

110

Opinion on Ultimate Issue

111

Opinion As To Sanity

112

Order For Blood Tests in Action Involving Paternity

113

Tests Made by Experts

114

Compensation of Experts

115

Determination of Paternity

116

General Rules As To Privilege

117

Waiver of Privilege

118

Comment On and Inferences From, Exercise of Privilege

119

Disclosure of Privileged Information In Ruling On Claim of Privilege

120

Presumption that Certain Communications Are Confidential

121

Effect of Error in Overruling Claim of Privilege

122

Admissibility Where Disclosure Erroneously Compelled

123

Privilege Against Self-Incrimination

124

Confidential Communication Between Client and Lawyer/Advocate

125

Lawyer-Client Privilege

126

When Lawyer Required to Claim Privilege

127

Exception: Crime or Fraud

128

Privilege Not to Testify Against Spouse

129

When Privilege Not Applicable

130

Waiver of Privilege

131

Confidential Communication Between Patient and Physician

132

Holder Of That Privilege

133

Physician-Patient Privilege

134

When Physician Required to Claim Privilege

Rule 105. Opinion Testimony by Lay Witness

If a witness is not testifying as an expert, his/her testimony in the form of an opinion is limited to such an

opinion as is permitted by law, including but not limited to an opinion that is;

(a) Rationally based on the perception of the witness; and

(b) Helpful to a clear understanding of his/her testimony.

Rule 106. Opinion Testimony by Expert Witness

If a witness is testifying as an expert, his/her testimony in the form of an opinion is limited to such as

opinion as is;

(a) Related to a subject that is sufficiently beyond common experience that the opinion of an

expert would assist the trier of fact; and

(b) Based on matter (including his/her special knowledge, skill, experience, training, and

education) perceived by or personally known to the witness or made known to him/her at or

before the hearing whether or not admissible, that is of a type that reasonably may be relief

upon by an expert in forming an opinion upon the subject to which his/her testimony relates,

unless an expert is precluded by law from using such matter as a basis for his/her opinion.

Rule 107. Statement of Basis of Opinion

A witness testifying in the form of an opinion may state on direct examination the reasons for his/her

opinion and the matter (including, in the case of an expert, his/her special knowledge, skill, experience,

training, and education) upon which it is based, unless he/she is precluded by law from using such reasons

or matter as a basis for his/her opinion. The court in its discretion may require that a witness before

testifying in the form of an opinion be first examined concerning the matter upon which his/her opinion is

based.

Rule 108. Opinion Based on Improper Matter

The court may, and upon objection shall, exclude testimony in the form of an opinion that is based in

whole or in significant part on matter that is not a proper basis for such an opinion. In such case, the

witness may, if there remains a proper basis for his/her opinion, then state his/her opinion after excluding

from consideration the matter determined to be improper.

Rule 109. Opinion Based on Opinion or Statement of Another

(a) If a witness testifying as an expert testifies that his/her opinion is based in whole or in part

upon the opinion or statement of another person, such other person may be called and

examined by any adverse party as if under cross-examination concerning the opinion or

statement

(b) This section is not applicable if the person upon whose opinion or statement the expert,

witness has relied is;

(1) a party,

(2) a person identified with a party, or

(3) a witness who has testified in the action concerning the subject matter of the opinion

or statement upon which the expert witness has relied.

based in whole or in part on the opinion or statement of another person

(d) An expert opinion otherwise admissible is not made inadmissible by this Rule because it is

based on the opinion or statement of a person who is unavailable for examination pursuant to

this Rule.

Rule 110. Opinion On Ultimate Issue

Testimony in the form of an opinion that is otherwise admissible is not objectionable because it embraces

the ultimate issue to be decided by the trier of fact.

Rule 111. Opinion As To Sanity

A witness may state his/her opinion as to the sanity of a person when:

(a) The witness is an intimate acquaintance of the person whose sanity is in question;

(b) The witness was a subscribing witness to a writing, the validity of which is in dispute, signed

by the person whose sanity is in question and the opinion relates to the sanity of such person

as the time the writing was signed; or

Rule 112. Order for Blood Tests In Actions Involving Paternity

In any action in which paternity is a relevant fact, the court may upon its own initiative or upon

suggestion made by or on behalf of any person whose blood is involved, and shall upon motion of any

party to the action made at a time so as not to delay the proceedings unduly, order the mother, child, and

alleged father to submit to blood tests. If any party refuses to submit to such tests, the court may resolve

the question of paternity against such party or enforce its order if the rights of others and the interests of

justice so require.

Rule 113. Tests Made by Experts

Paternity tests shall be made by experts qualified as examiners of blood types who shall be appointed by

the court. The experts shall be called by the court as witnesses to testify to their findings and shall be

subject to cross-examination by the parties. Any party or person at whose suggestion the tests have been

ordered may demand that other experts, qualified as examiners of blood types, perform independent tests

under order of the court, the results of which may be offered in evidence. The number and qualifications

of such experts shall be determined by the court.

Rule 114. Compensation of Experts

The compensation of each expert witness appointed by the court shall be fixed at a reasonable amount. It

shall be paid as the court shall order. The court may order that it be paid by the parties in such

proportions and at such times that it shall prescribe, and that, after payment by the parties all or part or

none of it be taxed as costs in the action.

Rule 115. Determination of Paternity

If the court finds that the conclusions of all the experts, as disclosed by the evidence based upon the tests,

are that the alleged father is not the father of the child, the question of paternity shall be resolved

accordingly. If the experts disagree in their findings or conclusions, the question shall be submitted upon

all the evidence.

Rule 116. General Rule As To Privilege

Except as otherwise provided by statute;

(a) No person has a privilege to refuse to be a witness.

(b) No person has a privilege to refuse to disclose any matter or to refuse to produce any writing,

object, or other thing.

or shall not produce any writing, object, or other thing.

Rule 117. Waiver of Privilege

(a) Except as otherwise provided in this Rule, the right of any person to claim a privilege

provided by these Rules (ie; lawyer-client privilege, privilege for confidential marital

communications, and physician-patient privilege) is waived with respect to a communication

protected by such privilege if any holder of the privilege, without coercion, has disclosed a

significant part of the communication or has consented to such disclosure a significant part of

the communication or has consented to such disclosure a significant part of the

communication or has consented to such disclosure made by anyone. Consent to disclosure is

manifested by any statement or other conduct of the holder of the privilege indicating his/her

consent to the disclosure, including his/her failure to claim the privilege in any proceeding in

which he/she has the legal standing and opportunity to claim the privilege.

(b) Where two or more persons are joint holders of a privilege provided by these rules, a waiver

of the right of a particular joint holder of the privilege to claim the privilege does not affect

the right of another joint holder to claim the privilege. In the case of the privilege for

confidential marital communications, a waiver of the right of one spouse to claim the

privilege does not affect the right of the other spouse to claim the privilege.

(d) A disclosure in confidence of a communication that is protected by a lawyer-client privilege

or physician-patient privilege, when such disclosure is reasonably necessary for the

accomplishment of the purpose for which the lawyer or physician was consulted, is not a

waiver of the privilege.

Rule 118. Comment On, and Inferences From, Exercise of Privilege

If in the instant proceeding or on a prior occasion a privilege is or was exercised not to testify with respect

to any matter, or to refuse to disclose or to prevent another from disclosing nay matter, neither the

presiding Judge nor counsel may comment thereon, no presumption shall arise because of the exercise of

the privilege, and the trier of fact may not draw any inference there from as to the credibility of the

witness or as to any matter at issue in the proceeding.

Rule 119. Disclosure of Privileged Information in Ruling on Claim of Privilege

Subject to subdivision (b), the presiding Judge may not require disclosure of information claimed to be

privileged under this chapter in order to rule on the claim of privilege.

Rule 120. Presumption That Certain Communications are Confidential

Whenever a privilege is claimed on the ground that the matter sought to be disclosed is a communication

made in confidence in the course of the lawyer-client, physician-patient, or husband-wife relationship, the

communication is presumed to have been made in confidence and the opponent of the claim of privilege

has the burden of proof to establish that the communication was not confidential.

Rule 121. Effect of Error in Overruling Claim of Privilege

A party may predicate error on a ruling disallowing a claim of privilege only if he/she is the holder of the

privilege, except that party may predicate error on a ruling disallowing a claim of privilege by his/her

spouse.

Rule 122. Admissibility Where Disclosure Erroneously Compelled

Evidence of a statement or other disclosure of privileged information is inadmissible against a holder of

the privilege if:

(a) A person authorized to claim the privilege claimed it but nevertheless disclosure erroneously

was required to be made; or

(b) The presiding Judge did not exclude the privileged information as required by these Rules.

Rule 123. Privilege Against Self-Incrimination

To the extent that such privilege exists under the Constitution of the United States or Tribal Law, a person

has a privilege to refuse to disclose any matter that may tend to incriminate him/her.

Rule 124. Confidential Communication Between Client and Lawyer/Advocate.

As used in this article, “confidential communication between client and lawyer” means information

transmitted between a client and his lawyer in the course of that relationship and in confidence by a

means which, so far as the client is aware, discloses the information to no third persons other than those

who are present to further the interest of the client in the consultation or those to whom disclosure is

reasonably necessary for the transmission of the information or the accomplishment of the purpose for

which the lawyer is consulted, and includes advice given by the lawyer in the course of that relationship.

As used herein the term lawyer means a person authorized to practice law by any Tribe, State or nation

and includes Tribal Court Advocates.

Rule 125. Lawyer-Client Privilege

Except as otherwise provided in these Rules, the client, whether or not a party, has a privilege to refuse to

disclose, and to prevent another from disclosing, a confidential communication between client and lawyer

if the privilege is claimed by;

(a) The holder of the privilege;

(b) A person who is authorized to claim the privilege by the holder of the privilege; or

person may not claim the privilege if there is no holder of the privilege in existence or if he is

otherwise instructed by a person authorized to permit disclosure.

Rule 126. When Lawyer Required to Claim Privilege

The lawyer who received or made a communication subject to the privilege under this chapter shall claim

the privilege whenever he/she is present when the communication is sought to be disclosed and is

authorized to claim the privilege under subdivision (c) of Rule 125.

Rule 127. Exception: Crime or Fraud

There is no privilege under this chapter if the services of the lawyer were sought or obtained to enable or

aid anyone to commit or plan to commit a crime or a fraud.

Rule 128. Privilege Not to Testify Against Spouse

Except as otherwise provided by Tribal Law, a married person whose spouse is a party to a proceeding

has a privilege not to be called as a witness by an adverse party to that proceeding or testify against

his/her spouse without the prior express consent of the spouse having the privilege under this Rule.

Rule 129. When Privilege Not Applicable

A married person does not have a privilege under this chapter in;

(a) A proceeding brought by or on behalf of one spouse against the other spouse

(b) A proceeding to commit or otherwise place his/her spouse or his/her spouse’s property, or

both, under the control of another because of the spouse’s alleged mental or physical

condition.

(d) A proceeding under the Tribes Child Welfare Ordinance.

Rule 130. Waiver of Privilege

(a) Unless erroneously compelled to do so, a married person who testifies in a proceeding to

which his/her spouse is a party, or who testifies against his/her spouse in any proceeding,

does not have a privilege under this chapter in the proceeding in which such testimony is

given.

(b) There is no privilege under this chapter in any proceeding brought or defended by a married

person for the immediate benefit of his/her spouse or of himself/herself and his/her spouse.

Rule 131. Confidential Communication Between Patient and Physician

As used in this chapter, “confidential communication between patient and physician” means information

including information obtained by an examination of the patient, transmitted between a patient and his/her

physician in the course of that relationship and in confidence by a means which, so far as the patient is

aware, discloses the information to no third persons other than those who are present to further the interest

of the patient in the consultation or those to whom disclosure is reasonably necessary for the transmission

of the information or the accomplishment of the purpose for which the physician is consulted, and

includes advice given by the physician in the course of the relationship. As used herein the term

physician means a person authorized by any state or nation to practice medicine.

Rule 132. Holder of the Privilege

As used in this chapter, “holder of the privilege” means;

(a) The patient, client, spouse when he/she has no guarding or conservator.

(b) A guardian or conservator of the patient, client or spouse when the patient, client or spouse

has a guardian or conservator.

dead.

Rule 133. Physician-Patient Privilege

Except as otherwise provided in this chapter, the patient, whether or not a party, has a privilege to refuse

to disclose, and to prevent another from disclosing, a confidential communication between patient and

physician if the privilege is claimed by;

(a) The holder of the privilege;

(b) A person who is authorized to claim the privilege by the holder of the privilege; or

person may not claim the privilege if there is not holder of the privilege in existence or if

he/she is otherwise instructed by a person authorized to permit disclosure.

Rule 134. When Physician Required to Claim Privilege.

The physician who received or made a communication subject to the privilege under this chapter shall

claim the privilege whenever he/she is present when the communication is sought to be disclosed and is

authorized to claim the privilege under Rule 133 (c).

Chapter 6

Evidence Affected or Excluded by Extrinsic Policies

Rule:

135

136

137

138

Manner of Proof of Character

Evidence of Character to Prove Conduct

Character Trait for Care of Skill

Habit or Custom to Prove Specific Behavior

Rule 135. Manner of Proof of Character

Except as otherwise provide by Tribal Law or these Rules, any otherwise admissible evidence (including

evidence in the form of an opinion, evidence of reputation, and evidence of specific instances of such

person’s conduct) is admissible to prove a person’s character or a trait of his/her character.

Rule 136. Evidence of Character to Prove Conduct

(a) Except as provided in this Rule, evidence of a person’s character or a trait of his/her character

(whether in the form of an opinion, evidence of reputation, or evidence or specific instances

of his/her conduct) is inadmissible when offered to prove his/her conduct on a specified

occasion.

(b) Nothing in this Rule prohibits the admission of evidence that a person committed a crime,

civil wrong, or other act when relevant to prove some fact (such as motive, opportunity,

intent, preparation, plan, knowledge, identity, or absence of mistake or accident) other than

his/her disposition to commit such acts.

credibility of a witness.

Rule 137. Character Trait for Care or Skill

Evidence of a trait of a person’s character with respect to care or skill is inadmissible to prove the quality

of his/her conduct on a specified occasion.

Rule 138. Habit or Custom to Prove Specific Behavior

Any otherwise admissible evidence of habit or custom is admissible to prove conduct on a specified

occasion in conformity with the habit or custom.

Chapter 7

Hearsay Evidence

Rule:

139

140

141

142

143

144

Definitions

Hearsay Rule

Hearsay Exceptions; Availability of Declarant Immaterial

Hearsay Exceptions; Declarant Unavailable

Traditional Oral Histories

Attacking and Supporting Credibility of Declarant

Rule 139. 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 the person as an assertion.

(b) Declarant.

A “delcarant” is a person who makes a statement.

“Hearsay” is an out-of-court statement offered to prove the truth of the matter asserted.

(d) Statements which are not hearsay. A statement is not hearsay if;

(1) Prior Statement of Witness

The declarant testifies at the trial or hearing and is subject to cross-examination

concerning the statement, and the statement is;

(A) inconsistent with the declarants testimony, and was given under oath subject to the

penalty of perjury at a trial, hearing, or other proceeding, or in deposition, or

(B) consistent with the declarants testimony and is offered to rebut an express or implied

charge against the declarant or recent fabrication or improper influence or motive, or

(2) Admission by Party-Opponent

The statement is offered against a party and is;

(A) the party’s own statement in either an individual or representative capacity or

(B) a statement of which the party has manifested an adoption or belief in its truth, or

subject, or

(D) a statement by the party’s agent or servant concerning a matter within the scope of

the agency or employment, made during the existence of the relationship, or

(E) a statement by a co-conspirator of a party during the course and in furtherance of the

conspiracy.

Rule 140. Hearsay Rule

Hearsay is not admissible except as provided by these Rules.

Rule 141. Hearsay Exceptions; Availability of Declarant Immaterial.

The following are admissible, 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

A statement of the declarants 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 declarants will.

(d) Statements for Purposes of Medical Diagnosis or Treatment

Statements made for purposes of medical diagnoses 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 the witness to testify fully and accurately, shown

to have been made or adopted by the witness when the matter was fresh in the witness’s

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, of acts, events, conditions,

opinions, or diagnoses, made at or near the time by, or from information transmitted by, a

person with knowledge, if kept in the course of a regularly conducted business activity, and if

it was the regular practice of that business activity to make the memorandum, report, record,

or data compilation, all as shown by the testimony of the custodian or other qualified witness,

unless the source of information or the method of circumstances of preparation indicate lack

of trustworthiness. The term “business” as used in this 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 Paragraph (6).

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 paragraph (6), to prove

the non-occurrence or non-existence of the matter, if the matter was 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

(A) the activities of the office or agency, or

(B) matters observed pursuant to duty imposed by law as to which matters there was a

duty to report, excluding, however, in criminal cases matters observed by police

officers and other law enforcement personnel, or

pursuant to authority granted by law, unless the sources of information or other

circumstances indicated lack of trustworthiness.

(i) Records of Vital Statistics

Records of data compilations, in any form, of births, fetal deaths, deaths, or marriages, if the

report thereof was made to a public office pursuant to the requirements of law.

(j) Absence of Public Record of Entry

To prove the absence of a record, report, statement, or data compilation, in any form, or the

non-occurrence of non-existence of a matter of which a record, report, statement, or data

compilation, in any form, was regularly made and preserved by a public office or agency,

evidence in the form of a certification in accordance with these rules, 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

or marriage, or other similar facts or 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 and 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 the expert witness in direct examination, statements contained in published treatises,

periodicals, or pamphlets on a subject of history, medicine, or other science or art, established

as reliable authority by the testimony or admission of the witness or by other expert testimony

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 a person’s family by blood, adoption, or marriage, or among a

person’s associates, or in the community, concerning a person’s birth, adoption, marriage,

divorce, death, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other

similar fact of 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 Tribe, community or State or nation in which located.

(u) Reputation as to Character

Reputation of a person’s character among associates or in the community.

(v) Judgment of Previous Conviction

Evidence of a final judgment, entered after trial or upon a plea of guilty (but not upon a plea

of nolo contendere), adjuding a person guilty of a crime punishable by death or imprisonment

in excess of one year, to prove any fact essential to sustain the judgment, but not including,

when offered by the Government in a criminal prosecution for purposes other than

impeachment, judgments against persons other than the accused. The pendency of an appeal

may be shown but does not affect admissibility.

(w) Judgment as to Personal, Family or General History, or Boundaries

Judgments as proof of matters of personal, family or general history, or boundaries, essential

to the judgment if the same would be provable by evidence or reputation.

(x) 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

(A) the statement is offered as evidence of a material fact;

(B) 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

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 sufficiently in advance of the trial or hearing to provide the adverse party with a

fair opportunity to prepare to meet it, the proponent’s intention to offer the statement

and the particulars of it, including the name and address of the declarant.

Rule 142. Hearsay Exceptions; Declarant Unavailable.

(a) Definition of Unavailablilty

“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 the declarants statement; or

(2) persists in refusing to testify concerning the subject matter of the declarants statement despite

an order of the court to do so; or

(3) testifies to a lack of memory of the subject matter of the declarants 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 a statement has been unable to procure the

declarants attendance (or in the case of a hearsay exception under subdivision (b) (2), (3), or

(4), the declarants attendance or testimony) by process or other reasonable means.

A declarant is not unavailable as a witness if exemption, refusal, claim of lack of memory,

inability, or absence is due to the procurement of wrongdoing of the proponent of a 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 or Impending Death

In a civil action or proceeding, a statement made by a declarant while believing that the

declarants death was imminent, concerning the cause or circumstances of what the declarant

believed to be impending death.

(3) Statement Against Interest

A statement which was at the time of its making so far contrary to the declarants pecuniary

or propriety interest, or so far tended to subject the declarant to civil or criminal liability, or to

render invalid a claim by the declarant against another, that a reasonable person in the

declarants position would not have made the statement unless believing 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 truthworthiness of the statement.

(4) Statement of Personal or Family History

(a) A statement concerning the declarants 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

(b) 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

(a) the statement is offered as evidence of a material fact;

(b) 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

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

sufficiently in advance of the trial or hearing to provide the adverse party with a fair

opportunity to prepare to meet it, the proponent’s intention to offer the statement and

the particulars of it, including the name and address of the declarant.

Rule 143. Traditional Oral Histories

In the event where the identity of an individual or an activity performed by an individual is sought to be

proved by the testimony of one who knows the oral traditional histories of the Tribe, such testimony shall

be considered only if corroborating evidence with the person’s knowledge of the oral history is proved to

be the satisfaction of the court. The court may take into consideration the following criteria which

include but are not limited to; age of witness, the witness’s relationship to the parties, knowledge by

others of the witness’s knowledge, the witness’s interest in the outcome of the action.

Rule 144. Attacking and Supporting Credibility of Declarant

When a hearsay statement 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 the

declarant had testified as a witness. Evidence of a statement or conduct by the declarants hearsay

statement, is not subject to any requirement that the declarant may have been 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 the declarant on the statement as if under cross-examination.

Chapter 8

Writings

Rule:

145

146

Requirement of Authentication or Identification

Self-Authentication

147

148

149

150

151

152

153

154

Definitions

Requirement of Original

Admissibility of Duplicates

Admissibility of Other Evidence of Contents

Public Records

Summaries

Testimony or Written Admission of Party

Functions of Court and/or Jury

Rule 145. 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 the way of illustration only, and not by way of limitation, the following are examples of

authentication or identification conforming with the requirements of this rule;

(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

circumstances 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

(a) in the case of a person, circumstances, including self-identification, show the

person answering to be the one called, or

(b) in the case of a business, the call be made to a place of business and the

conversation related to the 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 Documents or Data Compilation

Evidence that a document or data compilation, in any form,

(b) is in such condition as to create no suspicion concerning its authenticity,

(d) has been in existence 20 years or more at the time it is offered.

(9) Process or System

Evidence describing a process or system used to produce a result and showing that the

process or system produces an accurate result.

(10)Methods Provided by Statute or Rule

Any method of authentication or identification provided by Act of Congress, Tribal

Law or by these Rules.

Rule 146. Self-Authentication

Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to

the following;

(a) Domestic Public Documents Under Seal

A document bearing a seal purporting to be that of the United States, or of any State, any

Indian Tribal Government, district, Commonwealth, territory, or insular possession thereof,

or the Panama Canal Zone, or the Trust Territory of the Pacific Islands, or of a public entity,

subdivision, department, officer, or agency thereof, and a signature purporting to be an

attestation or execution.

(b) Domestic Public Documents Not Under Seal

A document purporting to bear the signature in the official capacity of an officer or employee

of any public 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.

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 paragraph (1), (2), or (3) of this rule or

complying with any Act of Congress, Tribal Law, these Rules, or rule prescribed by the

Supreme Court pursuant to statutory authority.

(d) Official Publications

Books, pamphlets, or other publications purporting to be issued by public authority

(e) Newspapers and Periodicals

Printed materials purporting to be newspapers and periodicals

(f) 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.

(g) 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 make

acknowledgments.

(h) Commercial Paper and Related Documents

Commercial paper, signatures thereon, and documents relating thereto to the extent provided

by general commercial law.

(i) Presumptions Under Acts of Congress

Any signature, document or other matter declared by Act of Congress to be presumptively or

prima facie genuine or authentic.

Rule 147. Definitions

For purposes of this chapter, the following definitions are applicable;

(a) Writings and Recordings

“Writings and recordings” consist of letter, words, or numbers, or their equivalent, set down

by handwriting, typewriting, printing, Photostatting, 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

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 other

equivalent techniques which accurately reproduces the original.

Rule 148. Requirement of Original

To prove the content of a writing recording, or photograph, the original writing, recording, or photograph

is required, except as otherwise provided in these Rules or by Tribal Law.

Rule 149. Admissibility of Duplicates

A duplicate is admissible to the same extent as an original unless;

(1) a genuine question is raised as to the authenticity of the original, or

(2) in the circumstances it would be unfair to admit the duplicate in lieu of the

original.

Rule 150. 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

At a time when an original was under the control of the party against whom offered, that party

was put on notice, by the pleadings or otherwise, that the contents would be a subject of proof

at the hearing, and that party does not produce the original at the hearing; or

(d) Collateral Matters

The writing, recording, photograph is not closely related to a controlling issue

Rule 151. Public Records

The contents of an official record, or of a document authorized to be recorded or filed an actually

recorded or filed, including data compilations in any form, if otherwise admissible, may be proved by

copy, certified as correct in accordance with these Rules 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.

Rule 152. 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 a reasonable time and

place. The court may order that they be produced in court.

Rule 153. 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 the party’s written admission, without accounting for the nonproduction of the original.

Rule 154. Functions of Court and/or Jury

When the admissibility of other evidence of contents of writings, recordings, or photographs under these

Rules 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 Rule 150. 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

fact to determine as in the case of other issues of fact.

ORDER

These rules shall take effect and govern all members or actions of members in all proceedings in the

Tribal Court on or after April 1st, 2007.

/s/ Lester J. Marson

Chief Judge of the Tribal Court

ATTESTED:

/s/ Elizabeth J. Jackson

Clerk of the Tribal Court

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.