FLANDREAU SANTEE SIOUX TRIBE LAW AND ORDER CODE

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TITLE 4B. RULES OF EVIDENCE

Enacted on March 7, 2019.

Chapter 1. GENERAL PROVISIONS

Rule 4B-1-101. Scope; Definitions.

(1)

SCOPE. These rules apply to proceedings in tribal court.

(2)

DEFINITIONS. In these rules:

(a)

“civil case” means a civil action or proceeding;

(b)

“criminal case” includes a criminal proceeding;

(c)

“public office” includes a public agency;

(d)

“record” includes a memorandum, report, or data compilation; a

reference to any kind of written material or any other medium

includes electronically stored information.

Rule 4B-1-102. Purpose. These rules should be construed so as to administer every

proceeding fairly, eliminate unjustifiable expense and delay, and promote the

development of evidence law, to the end of ascertaining the truth and securing a just

determination.

Rule 4B-1-103. Rulings on Evidence.

(1)

PRESERVING A CLAIM OF ERROR. A party may claim error in a ruling to

admit or exclude evidence only if the error affects a substantial right of the

party and:

(a)

if the ruling admits evidence, a party, on the record:

(i) timely objects or moves to strike; and

(ii) states the specific ground, unless it was apparent from the

context; or

(b)

if the ruling excludes evidence, a party informs the court of its

substance by an offer of proof, unless the substance was apparent

from the context.

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(2)

NOT NEEDING TO RENEW AN OBJECTION OR OFFER OF PROOF.

Once the court rules definitively on the record—either before or at trial—a

party need not renew an objection or offer of proof to preserve a claim of

error for appeal.

(3)

COURT’S STATEMENT ABOUT THE RULING; DIRECTING AN OFFER

OF PROOF. The court may make any statement about the character or form

of the evidence, the objection made, and the ruling. The court may direct

that an offer of proof be made in question-and-answer form.

(4)

PREVENTING THE JURY FROM HEARING INADMISSIBLE EVIDENCE.

To the extent practicable, the court must conduct a jury trial so that

inadmissible evidence is not suggested to the jury by any means.

(5)

TAKING NOTICE OF PLAIN ERROR. A court may take notice of a plain

error affecting a substantial right, even if the claim of error was not properly

preserved.

Rule 4B-1-104. Preliminary Questions.

(1)

IN GENERAL. The court must decide any preliminary question about

whether a witness is qualified, a privilege exists, or evidence is admissible.

In so deciding, the court is not bound by evidence rules, except those on

privilege.

(2)

RELEVANCE THAT DEPENDS ON A FACT. When the relevance of

evidence depends on whether a fact exists, proof must be introduced

sufficient to support a finding that the fact does exist. The court may admit

the proposed evidence on the condition that the proof be introduced later.

(3)

CONDUCTING A HEARING SO THAT THE JURY CANNOT HEAR IT. The

court must conduct any hearing on a preliminary question so that the jury

cannot hear it if:

(a)

the hearing involves the admissibility of a confession;

(b)

a defendant in a criminal case is a witness and so requests; or

(c)

justice so requires.

(4)

CROSS-EXAMINING A DEFENDANT IN A CRIMINAL CASE. By testifying

on a preliminary question, a defendant in a criminal case does not become

subject to cross- examination on other issues in the case.

(5)

EVIDENCE RELEVANT TO WEIGHT AND CREDIBILITY. This rule does

not limit a party’s right to introduce before the jury evidence that is relevant

to the weight or credibility of other evidence.

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Rule 4B-1-105. Limiting Evidence That Is Not Admissible Against Other Parties or

for Other Purposes. If the court admits evidence that is admissible against a party or

for a purpose—but not against another party or for another purpose—the court, on timely

request, must restrict the evidence to its proper scope and instruct the jury accordingly.

Rule 4B-1-106. Remainder of or Related Writings or Recorded Statements. If a party

introduces all or part of a writing or recorded statement, an adverse party may require the

introduction, at that time, of any other part—or any other writing or recorded statement—

that in fairness ought to be considered at the same time.

Rule 4B-1-107. Exception for Unrepresented Parties. When a party is not represented

by an attorney, the court may waive a provision of this Title if the court finds that such

waiver will not substantially affect the rights of the other party or parties.

Rule 4B-1-108. Chapters Applicable to All Proceedings-Exceptions. Except as

otherwise provided in this Rule, this Title shall apply to all actions and proceedings in the

Tribal Court. The provisions of this Title other than those with respect to privileges, do not

apply in the following situations:

(1)

The determination of questions of fact preliminary to admissibility of

evidence when the issue is to be determined by the court under Rule 4B-1104(a).

(2)

Small claims court proceedings.

(3)

Proceedings for extradition or rendition.

(4)

Sentencing, granting or revoking probation.

(5)

Issuance of warrants for arrest, criminal summonses, and search warrants.

(6)

Proceedings with respect to release on bail or otherwise.

(7)

Disposition hearings in juvenile court.

(8)

Contempt proceedings in which the court may act summarily.

Chapter 2. Judicial Notice

Rule 4B-2-201. Judicial Notice of Adjudicative Facts

(1)

SCOPE. This rule governs judicial notice of an adjudicative fact only, not a

legislative fact.

(2)

KINDS OF FACTS THAT MAY BE JUDICIALLY NOTICED. The court may

judicially notice a fact that is not subject to reasonable dispute because it:

(a)

is generally known within the trial court’s territorial jurisdiction; or

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(b)

(3)

can be accurately and readily determined from sources whose

accuracy cannot reasonably be questioned.

TAKING NOTICE. The court:

(a)

may take judicial notice on its own; or

(b)

must take judicial notice if a party requests it and the court is supplied

with the necessary information.

(4)

TIMING. The court may take judicial notice at any stage of the proceeding.

(5)

OPPORTUNITY TO BE HEARD. On timely request, a party is entitled to be

heard on the propriety of taking judicial notice and the nature of the fact to

be noticed. If the court takes judicial notice before notifying a party, the

party, on request, is still entitled to be heard.

(6)

INSTRUCTING THE JURY. In a civil case, the court must instruct the jury

to accept the noticed fact as conclusive. In a criminal case, the court must

instruct the jury that it may or may not accept the noticed fact as conclusive.

Chapter 3. Presumptions

Rule 4B-3-301. Effect of Presumption in Civil Proceedings. In all civil proceedings,

unless otherwise provided for by statute, a presumption imposes on the party against

whom it is directed the burden of going forward with evidence to rebut or meet the

presumption, but does not shift to such party the burden of proof in the sense of the risk

of nonpersuasion, which remains throughout the trial upon the party on whom it was

originally cast. When substantial, credible evidence has been introduced to rebut the

presumption, it shall disappear from the action or proceeding, and the jury shall not be

instructed thereon.

Rule 4B-3-302. Law Governing Presumptions Against Accused in Criminal Cases.

Except as otherwise provided by statute, in criminal cases, presumptions against an

accused, recognized at common law or created by statute, including statutory provisions

that certain facts are prima facie evidence of other facts or of guilt, are governed by 4B3-303 and 4B-3-304.

Rule 4B-3-303.

Submission of Presumptions to Jury in Criminal CasesDetermination as to Reasonable Doubt. The court is not authorized to direct the jury

to find a presumed fact against the accused. If a presumed fact establishes guilt or is an

element of the offense or negatives a defense, the court may submit the question of guilt

or of the existence of the presumed fact to the jury, but only if a reasonable juror on the

evidence as a whole, including the evidence of a basic fact, could find guilt or the

presumed fact beyond a reasonable doubt. If the presumed fact has a lesser effect, the

question of its existence may be submitted to the jury provided the facts are supported

by substantial evidence or are otherwise established, unless the court determines that a

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reasonable juror on the evidence as a whole could not find the existence of the presumed

fact.

Rule 4B-3-304. Instructions to Jury on Presumptions in Criminal Cases. Whenever

the existence of a presumed fact against the accused is submitted to the jury, the court

shall instruct the jury that it may regard the basic facts as sufficient evidence of the

presumed fact but is not required to do so. In addition, if the presumed fact establishes

guilt or is an element of the offense or negatives a defense, the court shall instruct the

jury that its existence, on all the evidence, must be proved beyond a reasonable doubt.

Chapter 4. Relevance and Its Limits

Rule 4B-4-401. Test for Relevant Evidence. Evidence is relevant if:

(1)

it has any tendency to make a fact more or less probable than it would be

without the evidence; and

(2)

the fact is of consequence in determining the action.

Rule 4B-4-402. General Admissibility of Relevant Evidence. Relevant evidence is

admissible except as otherwise provided by this title, inclusive, or by other rules

promulgated by the Court. Irrelevant evidence is not admissible.

Rule 4B-4-403. Excluding Relevant Evidence for Prejudice, Confusion, Waste of

Time, or Other Reasons. The court may exclude relevant evidence if its probative value

is substantially outweighed by a danger of one or more of the following: unfair prejudice,

confusing the issues, misleading the jury, undue delay, wasting time, or needlessly

presenting cumulative evidence.

Rule 4B-4-404. Character Evidence; Crimes or Other Acts

(1)

CHARACTER EVIDENCE.

(a)

Prohibited Uses. Evidence of a person’s character or character trait

is not admissible to prove that on a particular occasion the person

acted in accordance with the character or trait.

(b)

Exceptions for a Defendant or Victim in a Criminal Case. The

following exceptions apply in a criminal case:

(i) a defendant may offer evidence of the defendant’s pertinent trait,

and if the evidence is admitted, the prosecutor may offer evidence

to rebut it;

(ii) subject to the limitations in Rule 4B-4-412, a defendant may offer

evidence of an alleged victim’s pertinent trait, and if the evidence

is admitted, the prosecutor may offer evidence to rebut it; and

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(iii) in a homicide case, the prosecutor may offer evidence of the

alleged victim’s trait of peacefulness to rebut evidence that the

victim was the first aggressor.

(c)

(2)

Exceptions for a Witness. Evidence of a witness’s character may be

admitted under Rules 4B-6-607, -608 and -609.

CRIMES, WRONGS, OR OTHER ACTS.

(a)

Prohibited Uses. Evidence of a crime, wrong, or other act is not

admissible to prove a person’s character in order to show that on a

particular occasion the person acted in accordance with the

character.

(b)

Permitted Uses; Notice in a Criminal Case. This evidence may be

admissible for another purpose, such as proving motive, opportunity,

intent, preparation, plan, knowledge, identity, absence of mistake, or

lack of accident. On request by a defendant in a criminal case, the

prosecutor must:

(i) provide reasonable notice of the general nature of any such

evidence that the prosecutor intends to offer at trial; and

(ii) do so before trial—or during trial if the court, for good cause,

excuses lack of pretrial notice.

Rule 4B-4-405. Methods of Proving Character

(1)

BY REPUTATION OR OPINION. When evidence of a person’s character or

character trait is admissible, it may be proved by testimony about the

person’s reputation or by testimony in the form of an opinion. On crossexamination of the character witness, the court may allow an inquiry into

relevant specific instances of the person’s conduct.

(2)

BY SPECIFIC INSTANCES OF CONDUCT. When a person’s character or

character trait is an essential element of a charge, claim, or defense, the

character or trait may also be proved by relevant specific instances of the

person’s conduct.

Rule 4B-4-406. Habit; Routine Practice. Evidence of a person’s habit or an

organization’s routine practice may be admitted to prove that on a particular occasion the

person or organization acted in accordance with the habit or routine practice. The court

may admit this evidence regardless of whether it is corroborated or whether there was an

eyewitness.

Rule 4B-4-407. Subsequent Remedial Measures. When measures are taken that

would have made an earlier injury or harm less likely to occur, evidence of the subsequent

measures is not admissible to prove:

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(1)

negligence;

(2)

culpable conduct;

(3)

a defect in a product or its design; or

(4)

a need for a warning or instruction.

But the court may admit this evidence for another purpose, such as impeachment or—if

disputed—proving ownership, control, or the feasibility of precautionary measures.

Rule 4B-4-408. Compromise Offers and Negotiations

(1)

(2)

PROHIBITED USES. Evidence of the following is not admissible—on behalf

of any party— either to prove or disprove the validity or amount of a disputed

claim or to impeach by a prior inconsistent statement or a contradiction:

(a)

furnishing, promising, or offering—or accepting, promising to accept,

or offering to accept—a valuable consideration in compromising or

attempting to compromise the claim; and

(b)

conduct or a statement made during compromise negotiations about

the claim— except when offered in a criminal case and when the

negotiations related to a claim by a public office in the exercise of its

regulatory, investigative, or enforcement authority.

EXCEPTIONS. The court may admit this evidence for another purpose,

such as proving a witness’s bias or prejudice, negating a contention of

undue delay, or proving an effort to obstruct a criminal investigation or

prosecution.

Rule 4B-4-409. Offers to Pay Medical and Similar Expenses. Evidence of furnishing,

promising to pay, or offering to pay medical, hospital, or similar expenses resulting from

an injury is not admissible to prove liability for the injury.

Rule 4B-4-410. Pleas, Plea Discussions, and Related Statements

(1)

PROHIBITED USES. In a civil or criminal case, evidence of the following is

not admissible against the defendant who made the plea or participated in

the plea discussions:

(a)

a guilty plea that was later withdrawn;

(b)

a nolo contendere plea;

(c)

a statement made during a proceeding on either of those pleas under

Federal Rule of Criminal procedure 11 or a comparable state or tribal

procedure; or

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(d)

(2)

a statement made during plea discussions with an attorney for the

prosecuting authority if the discussions did not result in a guilty plea

or they resulted in a later- withdrawn guilty plea.

EXCEPTIONS. The court may admit a statement described in Rule 4B-4410(a)(3) or (4):

(a)

in any proceeding in which another statement made during the same

plea or plea discussions has been introduced, if in fairness the

statements ought to be considered together; or

(b)

in a criminal proceeding for perjury or false statement, if the

defendant made the statement under oath, on the record, and with

counsel present.

Rule 4B-4-411. Liability Insurance. Evidence that a person was or was not insured

against liability is not admissible to prove whether the person acted negligently or

otherwise wrongfully. But the court may admit this evidence for another purpose, such as

proving a witness’s bias or prejudice or proving agency, ownership, or control.

Rule 4B-4-412. Sex-Offense Cases: The Victim’s Sexual Behavior or Pre-disposition

(1)

(2)

PROHIBITED USES. The following evidence is not admissible in a civil or

criminal proceeding involving alleged sexual misconduct:

(a)

evidence offered to prove that a victim engaged in other sexual

behavior; or

(b)

evidence offered to prove a victim’s sexual predisposition.

EXCEPTIONS.

(a)

Criminal Cases. The court may admit the following evidence in a

criminal case:

(i) evidence of specific instances of a victim’s sexual behavior, if

offered to prove that someone other than the defendant was the

source of semen, injury, or other physical evidence;

(ii) evidence of specific instances of a victim’s sexual behavior with

respect to the person accused of the sexual misconduct, if offered

by the defendant to prove consent or if offered by the prosecutor;

and

(iii) evidence whose exclusion would violate the defendant’s

constitutional rights.

(b)

Civil Cases. In a civil case, the court may admit evidence offered to

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prove a victim’s sexual behavior or sexual pre-disposition if its

probative value substantially outweighs the danger of harm to any

victim and of unfair prejudice to any party. The court may admit

evidence of a victim’s reputation only if the victim has placed it in

controversy.

(3)

PROCEDURE TO DETERMINE ADMISSIBILITY.

(a)

Motion. If a party intends to offer evidence under Rule 4B-4-412(b),

the party must:

(i) file a motion that specifically describes the evidence and states

the purpose for which it is to be offered;

(ii) do so at least 14 days before trial unless the court, for good

cause, sets a different time;

(iii) serve the motion on all parties; and

(iv) notify the victim or, when appropriate, the victim’s guardian or

representative.

(b)

(4)

Hearing. Before admitting evidence under this rule, the court must

conduct an in camera hearing and give the victim and parties a right

to attend and be heard. Unless the court orders otherwise, the

motion, related materials, and the record of the hearing must be and

remain sealed.

Definition of “victim.” In this rule, “victim” includes an alleged victim.

Chapter 5. Privileges

Rule 4B-5-501. Privilege in General. Privileges Against Giving Evidence Restricted.

Except as otherwise provided in this Title, inclusive, or by other rules promulgated by the

Court, no person has a privilege to:

(1)

refuse to be a witness;

(2)

refuse to disclose any matter;

(3)

refuse to produce any object or writing; or

(4)

prevent another from being a witness or disclosing any matter or producing

any object or writing.

Rule 4B-5-502(a). Lawyer-Client Privilege-Definition of Terms. As used in Rules 4B5-502 to 4B-5-505, inclusive:

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(1)

A “client” is a person, public officer, or corporation, limited liability company,

association, or other organization or entity, either public or private, who is

rendered professional legal services by a lawyer, or who consults a lawyer

with a view to obtaining professional legal services from him;

(2)

A representative of the client is one having authority to obtain professional

legal services, or to act on advice rendered pursuant thereto, on behalf of

the client;

(3)

A “lawyer” is a person authorized, or reasonably believed by the client to be

authorized, to engage in the practice of law in any state or nation;

(4)

A “representative of the lawyer” is one employed by the lawyer to assist the

lawyer in the rendition of professional legal services;

(5)

A communication is “confidential” if not intended to be disclosed to third

persons other than those to whom disclosure is made in furtherance of the

rendition of professional legal services to the client or those reasonably

necessary for the transmission of the communication.

Rule 4B-5-502(b). Client’s Privilege on Confidential Communications With Lawyer.

A client has a privilege to refuse to disclose and to prevent any other person from

disclosing confidential communications made for the purpose of facilitating the rendition

of professional legal services to the client:

(1)

between himself or his representative and his lawyer’s representative,

(2)

between his lawyer and the lawyer’s representative,

(3)

by him or his representative or his lawyer or a representative of the lawyer

to a lawyer or a representative of a lawyer representing another party in a

pending action and concerning a matter of common interest therein,

(4)

between representatives of the client or between the client and a

representative of the client, or

(5)

among lawyers and their representatives representing the same client.

Rule 4B-5-502(c). Persons Entitled to Claim Client’s Privilege. The privilege

described in 4B-5-502(b) may be claimed by the client, his guardian or conservator, the

personal representative of a deceased client, or the successor, trustee, or similar

representative of a corporation, association, or other organization, whether or not in

existence. The person who was the lawyer or the lawyer’s representative at the time of

the communication is presumed to have authority to claim the privilege but only on behalf

of the client.

Rule 4B-5-502(d). Exceptions to Lawyer-Client Privilege. There is not a privilege

under Rule 4B-5-502(b):

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(1)

If the services of the lawyer were sought or obtained to enable or aid anyone

to commit or plan to commit what the client knew or reasonably should have

known to be a crime or fraud;

(2)

As to a communication relevant to an issue between parties who claim

through the same deceased client, regardless of whether the claims are by

testate or intestate succession or by inter vivos transaction;

(3)

As to a communication relevant to an issue of breach of duty by the lawyer

to his client or by the client to his lawyer;

(4)

As to a communication relevant to an issue concerning an attested

document to which the lawyer is an attesting witness;

(5)

As to a communication relevant to a matter of common interest between or

among two or more clients if the communication was made by any of them

to a lawyer retained or consulted in common, when offered in an action

between or among any of the clients.

Rule 4B-5-502(e). Attorney-Client Privilege and Work Product; Limitations on

Waiver. The following provisions apply, in the circumstances set out, to disclosure of a

communication or information covered by the attorney-client privilege or work-product

protection.

(1)

(2)

Disclosure Made in a Federal Proceeding or to a Federal Office or Agency;

Scope of a Waiver. When the disclosure is made in a tribal proceeding or

to a tribal office or agency and waives the attorney-client privilege or workproduct protection, the waiver extends to an undisclosed communication or

information in a federal, state, or tribal proceeding only if:

(a)

the waiver is intentional;

(b)

the disclosed and undisclosed communications or information

concern the same subject matter; and

(c)

they ought in fairness to be considered together.

Inadvertent Disclosure. When made in a tribal proceeding or to a tribal office

or agency, the disclosure does not operate as a waiver in a federal, state,

or tribal proceeding if:

(a)

the disclosure is inadvertent;

(b)

the holder of the privilege or protection took reasonable steps to

prevent disclosure; and

(c)

the holder promptly took reasonable steps to rectify the error,

including (if applicable) following Federal Rule of Civil Procedure

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26(b)(5)(B).

(3)

Disclosure Made in a State Proceeding. When the disclosure is made in a

federal or state proceeding and is not the subject of a federal or state-court

order concerning waiver, the disclosure does not operate as a waiver in a

tribal proceeding if the disclosure:

(a)

would not be a waiver under this rule if it had been made in a tribal

proceeding; or

(b)

is not a waiver under the law of the state where the disclosure

occurred.

(4)

Controlling Effect of a Court Order. A federal court may order that the

privilege or protection is not waived by disclosure connected with the

litigation pending before the court.

(5)

Controlling Effect of a Party Agreement. An agreement on the effect of

disclosure is binding only on the parties to the agreement, unless it is

incorporated into a court order.

(6)

Definitions. In this rule:

(a)

“attorney-client privilege” means the protection that applicable law

provides for confidential attorney-client communications; and

(b)

“work-product protection” means the protection that applicable law

provides for tangible material (or its intangible equivalent) prepared

in anticipation of litigation or for trial.

Rule 4B-5-503(a). Physician-Patient Privilege-Definitions of Terms. As used in Rules

4B-5-503(a) to 4B-5-503(f), inclusive:

(1)

A “patient” is a person who consults or is examined or interviewed by a

physician or psychotherapist.

(2)

A “physician” is a person authorized in any state or nation to engage in the

diagnosis or treatment of any human ill, or reasonably believed by the

patient so to be.

(3)

A “psychotherapist” is

(a)

a person authorized to practice medicine in any state or nation, or

reasonably believed by the patient so to be, while engaged in the

diagnosis or treatment of a mental or emotional condition, including

alcohol or drug addiction, or,

(b)

a person licensed or certified as a psychologist under the laws of any

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state or nation, while similarly engaged.

(4)

A communication is “confidential” if not intended to be disclosed to a third

person, except persons present to further the interest of a patient in the

consultation, examination, or interview, persons reasonably necessary for

the transmission of the communication, or persons who

are

participating in the diagnosis and treatment under the direction of the

physician or psychotherapist, including members of the patient’s family.

Rule 4B-5-503(b). Patient’s Privilege on Confidential Communications With

Physician or Psychotherapist. A patient has a privilege to refuse to disclose and to

prevent any other person from disclosing a confidential communication made for the

purpose of diagnosis or treatment of his physical, mental or emotional condition, including

alcohol and drug addiction, among himself, a physician or psychotherapist, and persons

who are participating in the diagnosis or treatment under the direction of the physician or

psychotherapist, including members of the patient’s family.

Rule 4B-5-503(c). Persons Entitled to Claim Patient’s Privilege. The privilege

described by 4B-5-503(b) may be claimed by the patient, his guardian or conservator, or

the personal representative of a deceased patient. The person who was the physician or

psychotherapist at the time of the communication is presumed to have authority to claim

the privilege but only on behalf of the patient.

Rule 4B-5-503(d). Exception to Privilege in Proceedings to Commit for Mental

Illness. There is no privilege under Rule 4B-5-503(b) for communications relevant to an

issue in proceedings to hospitalize the patient for mental illness, if the psychotherapist in

the course of diagnosis or treatment has determined that the patient is in need of

hospitalization.

Rule 4B-5-503(e). Exception to Privilege on Court-Ordered Examination of Patient.

If the court orders an examination of the physical, mental or emotional condition of a

patient, whether a party or a witness, communications made in the course thereof are not

privileged under Rule 4B-5-503(b) with respect to the particular purpose for which the

examination is ordered unless the court orders otherwise.

Rule 4B-5-503(f). Exception to Privilege When Patient’s Condition an Element of

Claim or Defense. There is no privilege under Rule 4B-5-503(b) as to a communication

relevant to an issue of the physical, mental or emotional condition of the patient in any

proceeding in which he relies upon the condition as an element of his claim or defense

or, after the patient’s death, in any proceeding in which any party relies upon the condition

as an element of his claim or defense.

Rule 4B-5-504(a). Communications Between Spouses Deemed Confidential. A

communication is confidential if it is made privately by any person to his or her spouse

during their marriage and is not intended for disclosure to any other person.

Rule 4B-5-504(b). Criminal Defendant’s Privilege as to Communication With

Spouse. An accused in a criminal proceeding has a privilege to prevent his spouse from

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testifying as to any confidential communication between the accused and the spouse.

Rule 4B-5-504(c). Persons Entitled to Claim Interspousal Privilege. The privilege

described in Rule 4B-5-504(b) may be claimed by the accused or by the spouse on behalf

of the accused. The authority of the spouse to do so is presumed.

Rule 4B-5-504(d). Exceptions to Interspousal Privilege. There is no privilege under

Rule 4B-5-504(b) in a proceeding in which one spouse is charged with a crime against

the person or property of:

(1)

the other,

(2)

a child of either,

(3)

a person residing in the household of either; or

(4)

a third person committed in the course of committing a crime against any of

them.

Rule 4B-5-505(a). Religious Privilege-Definition of Terms. As used in Rule 4B-5505(a) to 4B-5-505(c), inclusive:

(1)

A “spiritual leader” is a minister, priest, medicine man, accredited Christian

Science practitioner, or other similar functionary of a religious organization,

or an individual reasonably believed so to be by the person consulting him.

(2)

A communication is “confidential” if made privately and not intended for

further disclosure except to other persons present in furtherance of the

purpose of the communication.

Rule 4B-5-505(b). Privilege on Communications to Spiritual Advisors. A person has

a privilege to refuse to disclose and to prevent another from disclosing a confidential

communication by the person to a spiritual leader in his or her professional character as

spiritual advisor.

Rule 4B-5-505(c). Persons Entitled to Claim Religious Privilege. The privilege

described by Rule 4B-5-505(b) may be claimed by the person, by his guardian or

conservator, or by his personal representative if he is deceased. The person who was the

spiritual leader at the time of the communication is presumed to have authority to claim

the privilege but only on behalf of the communicant.

Rule 4B-5-506. Privilege Relating to Secret Vote in Election-Exception. Every

person has a privilege to refuse to disclose the tenor of his vote at a public election

conducted by secret ballot. This privilege does not apply if the court finds that the vote

was cast illegally or determines that the disclosure should be compelled pursuant to the

election laws of the Tribe.

Rule 4B-5-507.

Privilege of Trade Secrets-Protective Measures if Disclosure

Title 4B, Rules of Evidence

Directed. A person has a privilege, which may be claimed by him or his agent or

employee, to refuse to disclose and to prevent other persons from disclosing a trade

secret owned by him, if the allowance of the privilege will not tend to conceal fraud or

otherwise work injustice. If disclosure is directed, the court shall take such protective

measures as the interest of the holder of the privilege and of the parties and the interest

of justice require.

Rule 4B-5-508. Privileged Disclosures to Public Officers. A public officer cannot be

examined as to communications made to him in an official confidence, when the public

interests would suffer by the disclosure.

Rule 4B-5-508(a). Elementary or Secondary School Counselor and StudentExceptions. No counselor, certified in accordance with the certification regulations of

the South Dakota Board of Education and regularly employed as counselor for a private

or public elementary or secondary school or school system in the State of South Dakota,

may divulge to any other person, or be examined concerning any information or

communication given to him in his official capacity by a student unless:

(1)

This privilege is waived in writing by the student; or

(2)

The information or communication was made to the counselor for the

express purpose of being communicated or of being made public; or

(3)

The counselor has reason to suspect, as a result of that information or

communication, that the student has been subjected to child abuse or that

the student’s physical or mental health may be in jeopardy.

Rule 4B-5-508(b). College or University Counselor and Student – Exceptions –

Qualifications of Counselor. No counselor, regularly employed on a full-time basis as

a counselor for a tribal, private, or public college or university in the State of South Dakota,

may divulge to any other person, or be examined concerning any information or

communication given to the counselor in his official capacity by a client unless:

(1)

This privilege is waived in writing by the student; or

(2)

The information or communication was made to the counselor for the

express purpose of being communicated or of being made public.

For the purposes of this Rule “counselor” and “counseling” mean service performed by

persons trained in clinical counseling employed by tribal, public, and private colleges and

universities to provide psychological counseling services to enrolled students under

stated policy guidelines of the institution.

Rule 4B-5-509(a). Governmental Investigative Agency’s Privilege as to Identity of

Informer. The Flandreau Santee Sioux Tribe has a privilege to refuse to disclose the

identity of a person who has furnished information relating to or assisting in an

investigation of a possible violation of a law to a law enforcement officer or its staff

Title 4B, Rules of Evidence

conducting an investigation.

Rule 4B-5-509(b). Persons Entitled to Claim Governmental Investigative Privilege.

The privilege described by 4B-5-509(a) may be claimed by an appropriate representative

of the Flandreau Santee Sioux Tribe to whom the information was furnished.

Rule 4B-5-509(c). Informer Privilege Not Applicable if Identify Otherwise Disclosed.

No privilege exists under 4B-5-509(a) if the identity of the informer or his interest in the

subject matter of his communication has been disclosed to those who would have cause

to resent the communication by a holder of the privilege or by the informer’s own action,

or if the informer appears as a witness for the government.

Rule 4B-5-509(d). In Camera Proceedings to Determine Whether Informer Should

be Identified-Relief to Opposing Party-Protective Measures. If it appears in the case

that an informer may be able to give testimony relevant to any issue in a criminal case or

to a fair determination of a material issue on the merits in a civil case to which a Tribal

entity is a party, and the informed Tribal entity invokes the privilege described by Rule

4B-5-509(a), the court shall give the Tribal entity an opportunity to show in camera facts

relevant to determining whether the informer can in fact, supply that testimony. The

showing will ordinarily be in the form of affidavits, but the court may direct that testimony

be taken if it finds that the matter cannot be resolved satisfactorily upon affidavit. If the

court finds there is a reasonable probability that the informer can give the testimony, and

the entity elects not to disclose his identity, in criminal cases the court on motion of the

defendant or on its own motion shall grant appropriate relief, which may include one or

more of the following:

(1)

requiring the prosecuting attorney to comply,

(2)

granting the defendant additional time or a continuance,

(3)

relieving the defendant from making disclosures otherwise required of him,

(4)

prohibiting the prosecuting attorney from introducing specified evidence,

and

(5)

dismissing charges.

In civil cases, the court may make any order the interests of justice require. Evidence

submitted to the court shall be sealed and preserved to be made available to the Appellate

Court in the event of an appeal, and the contents shall not otherwise be revealed without

consent of the informed public entity. All counsel and parties are permitted to be present

at every stage of proceedings under this subdivision except a showing in camera at which

no counsel or party shall be permitted to be present.

Rule 4B-5-510. Waiver of Privilege by Voluntary Disclosure. A person upon whom

this Chapter confers a privilege against disclosure waives the privilege if he or his

predecessor while holder of the privilege voluntarily discloses or consents to disclosure

Title 4B, Rules of Evidence

of any significant part of the privileged matter. This Rule does not apply if the disclosure

itself is privileged.

Rule 4B-5-511. Privilege Not Waived by Involuntary Disclosure. A claim of privilege

is not defeated by a disclosure which was:

(1)

compelled erroneously or

(2)

made without opportunity to claim the privilege.

Rule 4B-5-512(a). Comment on Claim of Privilege Prohibited-No Inference. The

claim of a privilege, whether in the present proceeding or upon a prior occasion, is not a

proper subject of comment by judge or counsel. No inference may be drawn therefrom.

Rule 4B-5-512(b). Claim of Privilege to be Without Knowledge of Jury. In jury cases,

proceedings shall be conducted, to the extent practicable, so as to facilitate the making

of claims of privilege without the knowledge of the jury.

Rule 4B-5-512(c). Jury Instruction as to Inference From Claim of Privilege. Upon

request, any party against whom the jury might draw an adverse inference from a claim

of privilege is entitled to an instruction that no inference may be drawn therefrom.

Rule 4B-5-513. Motorist’s Refusal to Submit to Chemical Test of Intoxication

Admissible-Privilege Against Self-Incrimination May Not be Claimed.

Notwithstanding the provisions of Rule 4B-5-512, when a person stands trial for driving

while under the influence of alcohol or drugs, as provided in Title 3, Chapter 19, and that

person has refused chemical analysis, as provided in Title 3, Chapter 19, such refusal is

admissible into evidence. Such person may not claim the privilege against selfincrimination with regard to admission of refusal to submit to chemical analysis.

Rule 4B-5-514. Privilege for Sign Language Interpreter or Relay Service Operator.

No sign language interpreter or relay service operator who has interpreted for or relayed

information for a deaf, speech impaired or hearing impaired person may be compelled to

divulge or be examined as part of any proceeding concerning any information or

communication given to him in his capacity as an interpreter or relay service operator if

his client is otherwise accorded a privilege under this Chapter.

Chapter 6. Witnesses

Rule 4B-6-601. Competency to Testify in General. Every person is competent to be a

witness unless these rules provide otherwise.

Rule 4B-6-602. Need for Personal Knowledge. A witness may testify to a matter only

if evidence is introduced sufficient to support a finding that the witness has personal

knowledge of the matter. Evidence to prove personal knowledge may consist of the

witness’s own testimony. This rule does not apply to a witness’s expert testimony under

Rule 4B-7-703.

Title 4B, Rules of Evidence

Rule 4B-6-603. Oath or Affirmation to Testify Truthfully. Before testifying, a witness

must give an oath or affirmation to testify truthfully. It must be in a form designed to

impress that duty on the witness’s conscience.

Rule 4B-6-603(a). Form for Oath of Witness. The following oath may be used to satisfy

the requirements of Rule 4B-6-603:

You do solemnly swear that the evidence you shall give relative to the

matter in difference now in hearing between

, plaintiff, and

, defendant, shall be the truth, the whole truth and nothing but the

truth, so help you God.

Rule 4B-6-604. Interpreter. An interpreter must be qualified and must give an oath or

affirmation to make a true translation.

Rule 4B-6-605. Judge’s Competency as a Witness. The presiding judge may not

testify as a witness at the trial. A party need not object to preserve the issue.

Rule 4B-6-606. Juror’s Competency as a Witness.

(1)

AT THE TRIAL. A juror may not testify as a witness before the other jurors

at the trial. If a juror is called to testify, the court must give a party an

opportunity to object outside the jury’s presence.

(2)

DURING AN INQUIRY INTO THE VALIDITY OF A VERDICT OR

INDICTMENT.

(a)

Prohibited Testimony or Other Evidence. During an inquiry into the

validity of a verdict or indictment, a juror may not testify about any

statement made or incident that occurred during the jury’s

deliberations; the effect of anything on that juror’s or another juror’s

vote; or any juror’s mental processes concerning the verdict or

indictment. The court may not receive a juror’s affidavit or evidence

of a juror’s statement on these matters.

(b)

Exceptions. A juror may testify about whether:

(i) extraneous prejudicial information was improperly brought to the

jury’s attention;

(ii) an outside influence was improperly brought to bear on any juror;

(iii) a mistake was made in entering the verdict on the verdict form;

(iv) any juror makes a clear statement that indicates he or she relied

on racial or sexual orientation stereotypes or animus to convict a

criminal defendant.

Title 4B, Rules of Evidence

Rule 4B-6-607. Who May Impeach a Witness. Any party, including the party that called

the witness, may attack the witness’s credibility.

Rule 4B-6-608. A Witness’s Character for Truthfulness or Untruthfulness.

(1)

REPUTATION OR OPINION EVIDENCE. A witness’s credibility may be

attacked or supported by testimony about the witness’s reputation for

having a character for truthfulness or untruthfulness, or by testimony in the

form of an opinion about that character. But evidence of truthful character

is admissible only after the witness’s character for truthfulness has been

attacked.

(2)

SPECIFIC INSTANCES OF CONDUCT. Except for a criminal conviction

under Rule 4B-6-609, extrinsic evidence is not admissible to prove specific

instances of a witness’s conduct in order to attack or support the witness’s

character for truthfulness. But the court may, on cross- examination, allow

them to be inquired into if they are probative of the character for truthfulness

or untruthfulness of:

(a)

the witness; or

(b)

another witness whose character the witness being cross-examined

has testified about.

By testifying on another matter, a witness does not waive any privilege against selfincrimination for testimony that relates only to the witness’s character for truthfulness.

Rule 4B-6-609. Impeachment by Evidence of a Criminal Conviction.

(1)

(2)

IN GENERAL. The following rules apply to attacking a witness’s character

for truthfulness by evidence of a criminal conviction:

(a)

for a crime that, in the convicting jurisdiction, was punishable by

death or by imprisonment for more than one year, the evidence must

be admitted if the probative value of the evidence outweighs its

prejudicial effect to a party or the defendant; and

(b)

for any crime regardless of the punishment, the evidence must be

admitted if the court can readily determine that establishing the

elements of the crime required proving—or the witness’s admitting—

a dishonest act or false statement.

LIMIT ON USING THE EVIDENCE AFTER 10 YEARS. This subdivision

applies if more than 10 years have passed since the witness’s conviction or

release from confinement for it, whichever is later. Evidence of the

conviction is admissible only if:

(a)

its probative value, supported by specific facts and circumstances,

Title 4B, Rules of Evidence

substantially outweighs its prejudicial effect; and

(b)

(3)

(4)

(5)

the proponent gives an adverse party reasonable written notice of

the intent to use it so that the party has a fair opportunity to contest

its use.

EFFECT OF A PARDON, ANNULMENT, OR CERTIFICATE OF

REHABILITATION. Evidence of a conviction is not admissible if:

(a)

the conviction has been the subject of a pardon, annulment,

certificate of rehabilitation, or other equivalent procedure based on a

finding that the person has been rehabilitated, and the person has

not been convicted of a later crime punishable by death or by

imprisonment for more than one year; or

(b)

the conviction has been the subject of a pardon, annulment, or other

equivalent procedure based on a finding of innocence.

JUVENILE ADJUDICATIONS. Evidence of a juvenile adjudication is

admissible under this rule only if:

(a)

it is offered in a criminal case;

(b)

the adjudication was of a witness other than the defendant;

(c)

an adult’s conviction for that offense would be admissible to attack

the adult’s credibility; and

(d)

admitting the evidence is necessary to fairly determine guilt or

innocence.

PENDENCY OF AN APPEAL. A conviction that satisfies this rule is

admissible even if an appeal is pending. Evidence of the pendency is also

admissible.

Rule 4B-6-610. Religious Beliefs or Opinions. Evidence of a witness’s religious beliefs

or opinions is not admissible to attack or support the witness’s credibility.

Rule 4B-6-611. Mode and Order of Examining Witnesses and Presenting Evidence

(1)

CONTROL BY THE COURT; PURPOSES. The court should exercise

reasonable control over the mode and order of examining witnesses and

presenting evidence so as to:

(a)

make those procedures effective for determining the truth;

(b)

avoid wasting time; and

(c)

protect witnesses from harassment or undue embarrassment.

Title 4B, Rules of Evidence

(2)

SCOPE OF CROSS-EXAMINATION. Cross-examination should not go

beyond the subject matter of the direct examination and matters affecting

the witness’s credibility. The court may allow inquiry into additional matters

as if on direct examination.

(3)

LEADING QUESTIONS. Leading questions should not be used on direct

examination except as necessary to develop the witness’s testimony.

Ordinarily, the court should allow leading questions:

(a)

on cross-examination; and

(b)

when a party calls a hostile witness, an adverse party, or a witness

identified with an adverse party.

Rule 4B-6-612. Writing Used to Refresh a Witness’s Memory

(1)

SCOPE. This rule gives an adverse party certain options when a witness

uses a writing to refresh memory:

(a)

while testifying; or

(b)

before testifying, if the court decides that justice requires the party to

have those options.

(2)

ADVERSE PARTY’S OPTIONS; DELETING UNRELATED MATTER. An

adverse party is entitled to have the writing produced at the hearing, to

inspect it, to cross-examine the witness about it, and to introduce in

evidence any portion that relates to the witness’s testimony. If the producing

party claims that the writing includes unrelated matter, the court must

examine the writing in camera, delete any unrelated portion, and order that

the rest be delivered to the adverse party. Any portion deleted over

objection must be preserved for the record.

(3)

FAILURE TO PRODUCE OR DELIVER THE WRITING. If a writing is not

produced or is not delivered as ordered, the court may issue any

appropriate order. But if the prosecution does not comply in a criminal case,

the court must strike the witness’s testimony or—if justice so requires—

declare a mistrial.

Rule 4B-6-613. Witness’s Prior Statement.

(1)

SHOWING OR DISCLOSING THE STATEMENT DURING EXAMINATION.

When examining a witness about the witness’s prior statement, a party need

not show it or disclose its contents to the witness. But the party must, on

request, show it or disclose its contents to an adverse party’s attorney.

(2)

EXTRINSIC EVIDENCE OF A PRIOR INCONSISTENT STATEMENT.

Extrinsic evidence of a witness’s prior inconsistent statement is admissible

Title 4B, Rules of Evidence

only if the witness is given an opportunity to explain or deny the statement

and an adverse party is given an opportunity to examine the witness about

it, or if justice so requires. This subdivision (b) does not apply to an opposing

party’s statement under Rule 4B-8-801(d)(2).

Rule 4B-6-614. Court’s Calling or Examining a Witness.

(1)

CALLING. The court may call a witness on its own or at a party’s request.

Each party is entitled to cross-examine the witness.

(2)

EXAMINING. The court may examine a witness regardless of who calls the

witness.

(3)

OBJECTIONS. A party may object to the court’s calling or examining a

witness either at that time or at the next opportunity when the jury is not

present.

Rule 4B-6-615. Excluding Witnesses. At a party’s request, the court must order

witnesses excluded so that they cannot hear other witnesses’ testimony. Or the court may

do so on its own. But this rule does not authorize excluding:

(1)

a party who is a natural person;

(2)

an officer or employee of a party that is not a natural person, after being

designated as the party’s representative by its attorney;

(3)

a person whose presence a party shows to be essential to presenting the

party’s claim or defense;

(4)

a person authorized by statute to be present; or

(5)

a victim of a crime and his or her parent or guardian following the victim’s

testimony.

Chapter 7. Opinions and Expert Testimony

Rule 4B-7-701. Opinion Testimony by Lay Witnesses. If a witness is not testifying as

an expert, testimony in the form of an opinion is limited to one that is:

(1)

rationally based on the witness’s perception;

(2)

helpful to clearly understanding the witness’s testimony or to determining a

fact in issue; and

(3)

not based on scientific, technical, or other specialized knowledge within the

scope of Rule 4B-7-702.

Rule 4B-7-702. Testimony by Expert Witnesses. A witness who is qualified as an

Title 4B, Rules of Evidence

expert by knowledge, skill, experience, training, or education may testify in the form of an

opinion or otherwise if:

(1)

the expert’s scientific, technical, or other specialized knowledge will help the

trier of fact to understand the evidence or to determine a fact in issue;

(2)

the testimony is based on sufficient facts or data;

(3)

the testimony is the product of reliable principles and methods; and

(4)

the expert has reliably applied the principles and methods to the facts of the

case.

Rule 4B-7-703. Bases of an Expert’s Opinion Testimony. An expert may base an

opinion on facts or data in the case that the expert has been made aware of or personally

observed. If experts in the particular field would reasonably rely on those kinds of facts or

data in forming an opinion on the subject, they need not be admissible for the opinion to

be admitted. But if the facts or data would otherwise be inadmissible, the proponent of

the opinion may disclose them to the jury only if their probative value in helping the jury

evaluate the opinion substantially outweighs their prejudicial effect.

Rule 4B-7-704. Opinion on an Ultimate Issue. An opinion is not objectionable just

because it embraces an ultimate issue.

Rule 4B-7-705. Disclosing the Facts or Data Underlying an Expert’s Opinion.

Unless the court orders otherwise, an expert may state an opinion—and give the reasons

for it— without first testifying to the underlying facts or data. But the expert may be

required to disclose those facts or data on cross-examination.

Rule 4B-7-706. Court-Appointed Expert Witnesses.

(1)

APPOINTMENT PROCESS. On a party’s motion or on its own, the court

may order the parties to show cause why expert witnesses should not be

appointed and may ask the parties to submit nominations. The court may

appoint any expert that the parties agree on and any of its own choosing.

But the court may only appoint someone who consents to act.

(2)

EXPERT’S ROLE. The court must inform the expert of the expert’s duties.

The court may do so in writing and have a copy filed with the clerk or may

do so orally at a conference in which the parties have an opportunity to

participate. The expert:

(a)

must advise the parties of any findings the expert makes;

(b)

may be deposed by any party;

(c)

may be called to testify by the court or any party; and

Title 4B, Rules of Evidence

(d)

(3)

may be cross-examined by any party, including the party that called

the expert.

COMPENSATION. The expert is entitled to a reasonable compensation, as

set by the court. The compensation is payable as follows:

(a)

in a criminal case or in a civil case involving just compensation under

the Fifth Amendment, from any funds that are provided by law; and

(b)

in any other civil case, by the parties in the proportion and at the time

that the court directs—and the compensation is then charged like

other costs.

(4)

DISCLOSING THE APPOINTMENT TO THE JURY. The court may

authorize disclosure to the jury that the court appointed the expert.

(5)

PARTIES’ CHOICE OF THEIR OWN EXPERTS. This rule does not limit a

party in calling its own experts.

Chapter 8. Hearsay

Rule 4B-8-801. Definitions That Apply to This Article; Exclusions from Hearsay.

(1)

STATEMENT. ‘‘Statement’’ means a person’s oral assertion, written

assertion, or nonverbal conduct, if the person intended it as an assertion.

(2)

DECLARANT. ‘‘Declarant’’ means the person who made the statement.

(3)

HEARSAY. ‘‘Hearsay’’ means a statement that:

(4)

(a)

the declarant does not make while testifying at the current trial or

hearing; and

(b)

a party offers in evidence to prove the truth of the matter asserted in

the statement.

STATEMENTS THAT ARE NOT HEARSAY. A statement that meets the

following conditions is not hearsay:

(a)

A Declarant-Witness’s Prior Statement. The declarant testifies and is

subject to cross- examination about a prior statement, and the

statement:

(i) is inconsistent with the declarant’s testimony and was given

under penalty of perjury at a trial, hearing, or other proceeding or

in a deposition;

(ii) is consistent with the declarant’s testimony and is offered:

Title 4B, Rules of Evidence

to rebut an express or implied charge that the

declarant recently fabricated it or acted from a recent

improper influence or motive in so testifying; or

to rehabilitate the declarant’s credibility as a

witness when attacked on another ground; or

(iii) identifies a person as someone the declarant perceived earlier.

(b)

An Opposing Party’s Statement. The statement is offered against an

opposing party and:

(i) was made by the party in an individual or representative capacity;

(ii) is one the party manifested that it adopted or believed to be true;

(iii) was made by a person whom the party authorized to make a

statement on the subject;

(iv) was made by the party’s agent or employee on a matter within

the scope of that relationship and while it existed; or

(v) was made by the party’s coconspirator during and in furtherance

of the conspiracy.

The statement must be considered but does not by itself establish

the declarant’s authority under (C); the existence or scope of the

relationship under (D); or the existence of the conspiracy or

participation in it under (E).

Rule 4B-8-802. The Rule Against Hearsay. Hearsay is not admissible except as

provided by law or by this Title, inclusive.

Rule 4B-8-803. Exceptions to the Rule Against Hearsay—Regardless of Whether

the Declarant Is Available as a Witness. The following are not excluded by the rule

against hearsay, regardless of whether the declarant is available as a witness:

(1)

Present Sense Impression. A statement describing or explaining an event

or condition, made while or immediately after the declarant perceived it.

(2)

Excited Utterance. A statement relating to a startling event or condition,

made while the declarant was under the stress of excitement that it caused.

(3)

Then-Existing Mental, Emotional, or Physical Condition. A statement of the

declarant’s then-existing state of mind (such as motive, intent, or plan) or

emotional, sensory, or physical condition (such as mental feeling, pain, or

bodily health), but not including a statement of memory or belief to prove

the fact remembered or believed unless it relates to the validity or terms of

Title 4B, Rules of Evidence

the declarant’s will.

(4)

(5)

Statement Made for Medical Diagnosis or Treatment. A statement that:

(a)

is made for—and is reasonably pertinent to—medical diagnosis or

treatment; and

(b)

describes medical history; past or present symptoms or sensations;

their inception; or their general cause.

Recorded Recollection. A record that:

(a)

is on a matter the witness once knew about but now cannot recall

well enough to testify fully and accurately;

(b)

was made or adopted by the witness when the matter was fresh in

the witness’s memory; and

(c)

accurately reflects the witness’s knowledge.

If admitted, the record may be read into evidence but may be received as

an exhibit only if offered by an adverse party.

(6)

(7)

Records of a Regularly Conducted Activity. A record of an act, event,

condition, opinion, or diagnosis if:

(a)

the record was made at or near the time by—or from information

transmitted by— someone with knowledge;

(b)

the record was kept in the course of a regularly conducted activity of

a business, organization, occupation, or calling, whether or not for

profit;

(c)

making the record was a regular practice of that activity;

(d)

all these conditions are shown by the testimony of the custodian or

another qualified witness, or by a certification that complies with Rule

4B-9-902(11) or (12) or with a statute permitting certification; and

(e)

the opponent does not show that the source of information or the

method or circumstances of preparation indicate a lack of

trustworthiness.

Absence of a Record of a Regularly Conducted Activity. Evidence that a

matter is not included in a record described in paragraph (6) if:

(a)

the evidence is admitted to prove that the matter did not occur or

exist;

Title 4B, Rules of Evidence

(8)

(b)

a record was regularly kept for a matter of that kind; and

(c)

the opponent does not show that the possible source of the

information or other circumstances indicate a lack of trustworthiness.

Public Records. A record or statement of a public office if:

(a)

it sets out:

(i) the office’s activities;

(ii) a matter observed while under a legal duty to report, but not

including, in a criminal case, a matter observed by lawenforcement personnel; or

(iii) in a civil case or against the government in a criminal case,

factual findings from a legally authorized investigation; and

(b)

the opponent does not show that the source of information or other

circumstances indicate a lack of trustworthiness.

(9)

Public Records of Vital Statistics. A record of a birth, death, or marriage, if

reported to a public office in accordance with a legal duty.

(10)

Absence of a Public Record. Testimony—or a certification under Rule 4B9-902—that a diligent search failed to disclose a public record or statement

if:

(a)

the testimony or certification is admitted to prove that

(i) the record or statement does not exist; or

(ii) a matter did not occur or exist, if a public office regularly kept a

record or statement for a matter of that kind; and

(b)

in a criminal case, a prosecutor who intends to offer a certification

provides written notice of that intent at least 14 days before trial, and

the defendant does not object in writing within 7 days of receiving the

notice—unless the court sets a different time for the notice or the

objection.

(11)

Records of Religious Organizations Concerning Personal or Family History.

A statement of birth, legitimacy, ancestry, marriage, divorce, death,

relationship by blood or marriage, or similar facts of personal or family

history, contained in a regularly kept record of a religious organization.

(12)

Certificates of Marriage, Baptism, and Similar Ceremonies. A statement of

fact contained in a certificate:

Title 4B, Rules of Evidence

(a)

made by a person who is authorized by a religious organization or by

law to perform the act certified;

(b)

attesting that the person performed a marriage or similar ceremony

or administered a sacrament; and

(c)

purporting to have been issued at the time of the act or within a

reasonable time after it.

(13)

Family Records. A statement of fact about personal or family history

contained in a family record, such as a Bible, genealogy, chart, engraving

on a ring, inscription on a portrait, or engraving on an urn or burial marker.

(14)

Records of Documents That Affect an Interest in Property. The record of a

document that purports to establish or affect an interest in property if:

(a)

the record is admitted to prove the content of the original recorded

document, along with its signing and its delivery by each person who

purports to have signed it;

(b)

the record is kept in a public office; and

(c)

a statute authorizes recording documents of that kind in that office.

(15)

Statements in Documents That Affect an Interest in Property. A statement

contained in a document that purports to establish or affect an interest in

property if the matter stated was relevant to the document’s purpose—

unless later dealings with the property are inconsistent with the truth of the

statement or the purport of the document.

(16)

Statements in Ancient Documents. A statement in a document that is at

least 20 years old and whose authenticity is established.

(17)

Market Reports and Similar Commercial Publications. Market quotations,

lists, directories, or other compilations that are generally relied on by the

public or by persons in particular occupations.

(18)

Statements in Learned Treatises, Periodicals, or Pamphlets. A statement

contained in a treatise, periodical, or pamphlet if:

(a)

the statement is called to the attention of an expert witness on crossexamination or relied on by the expert on direct examination; and

(b)

the publication is established as a reliable authority by the expert’s

admission or testimony, by another expert’s testimony, or by judicial

notice.

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If admitted, the statement may be read into evidence but not received as an

exhibit.

(19)

Reputation Concerning Personal or Family History. A reputation among a

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

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

legitimacy, ancestry, marriage, divorce, death, relationship by blood,

adoption, or marriage, or similar facts of personal or family history.

(20)

Reputation Concerning Boundaries or General History. A reputation in a

community— arising before the controversy— concerning boundaries of

land in the community or customs that affect the land, or concerning general

historical events important to that community, state, or nation.

(21)

Reputation Concerning Character. A reputation among a person’s

associates or in the community concerning the person’s character.

(22)

Judgment of a Previous Conviction. Evidence of a final judgment of

conviction if:

(a)

the judgment was entered after a trial or guilty plea, but not a nolo

contendere plea;

(b)

the conviction was for a crime punishable by death or by

imprisonment for more than a year;

(c)

the evidence is admitted to prove any fact essential to the judgment;

and

(d)

when offered by the prosecutor in a criminal case for a purpose other

than impeachment, the judgment was against the defendant.

The pendency of an appeal may be shown but does not affect admissibility.

(23)

(24)

Judgments Involving Personal, Family, or General History, or a Boundary.

A judgment that is admitted to prove a matter of personal, family, or general

history, or boundaries, if the matter:

(a)

was essential to the judgment; and

(b)

could be proved by evidence of reputation.

[Other Exceptions.] [Transferred to Rule 4B-8-807.]

Rule 4B-8-804. Exceptions to the Rule Against Hearsay—When the Declarant Is

Unavailable as a Witness.

(1)

CRITERIA FOR BEING UNAVAILABLE. A declarant is considered to be

Title 4B, Rules of Evidence

unavailable as a witness if the declarant:

(a)

is exempted from testifying about the subject matter of the

declarant’s statement because the court rules that a privilege

applies;

(b)

refuses to testify about the subject matter despite a court order to do

so;

(c)

testifies to not remembering the subject matter;

(d)

cannot be present or testify at the trial or hearing because of death

or a then-existing infirmity, physical illness, or mental illness; or

(e)

is absent from the trial or hearing and the statement’s proponent has

not been able, by process or other reasonable means, to procure:

(i) the declarant’s attendance, in the case of a hearsay exception

under Rule 4B-8-804(b)(1) or (6); or

(ii) the declarant’s attendance or testimony, in the case of a hearsay

exception under Rule 4B-8-804(b)(2), (3), or (4).

But this subdivision (1) does not apply if the statement’s proponent procured or

wrongfully caused the declarant’s unavailability as a witness in order to prevent

the declarant from attending or testifying.

(2)

THE EXCEPTIONS. The following are not excluded by the rule against

hearsay if the declarant is unavailable as a witness:

(a)

Former Testimony. Testimony that:

(i) was given as a witness at a trial, hearing, or lawful deposition,

whether given during the current proceeding or a different one;

and

(ii) is now offered against a party who had—or, in a civil case, whose

predecessor in interest had—an opportunity and similar motive to

develop it by direct, cross-, or redirect examination.

(b)

Statement Under the Belief of Imminent Death. In a prosecution for

homicide or in a civil case, a statement that the declarant, while

believing the declarant’s death to be imminent, made about its cause

or circumstances.

(c)

Statement Against Interest. A statement that:

(i) a reasonable person in the declarant’s position would have made

Title 4B, Rules of Evidence

only if the person believed it to be true because, when made, it

was so contrary to the declarant’s proprietary or pecuniary

interest or had so great a tendency to invalidate the declarant’s

claim against someone else or to expose the declarant to civil or

criminal liability; and

(ii) is supported by corroborating circumstances that clearly indicate

its trustworthiness, if it is offered in a criminal case as one that

tends to expose the declarant to criminal liability.

(d)

Statement of Personal or Family History. A statement about:

(i) the declarant’s own birth, adoption, legitimacy, ancestry,

marriage, divorce, relationship by blood, adoption, or marriage,

or similar facts of personal or family history, even though the

declarant had no way of acquiring personal knowledge about that

fact; or

(ii) another person concerning any of these facts, as well as death,

if the declarant was related to the person by blood, adoption, or

marriage or was so intimately associated with the person’s family

that the declarant’s information is likely to be accurate.

(e)

In actions, suits, or proceedings by or against the representatives of

the deceased person including proceedings for the probate of wills,

any statement of the deceased whether oral or written shall not be

excluded as hearsay, provided that the trial judge shall first find as a

fact that the statement was made by the decedent, and that it was in

good faith and on the decedent’s personal knowledge.

(f)

Statement Offered Against a Party That Wrongfully Caused the

Declarant’s Unavailability. A statement offered against a party that

wrongfully caused—or acquiesced in wrongfully causing—the

declarant’s unavailability as a witness, and did so intending that

result.

Rule 4B-8-805. Hearsay Within Hearsay. Hearsay within hearsay is not excluded by

the rule against hearsay if each part of the combined statements conforms with an

exception to the rule.

Rule 4B-8-806. Attacking and Supporting the Declarant’s Credibility. When a

hearsay statement—or a statement described in Rule 4B-8-801(d)(2)(C), (D), or (E)—

has been admitted in evidence, the declarant’s credibility may be attacked, and then

supported, by any evidence that would be admissible for those purposes if the declarant

had testified as a witness. The court may admit evidence of the declarant’s inconsistent

statement or conduct, regardless of when it occurred or whether the declarant had an

opportunity to explain or deny it. If the party against whom the statement was admitted

calls the declarant as a witness, the party may examine the declarant on the statement

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as if on cross-examination.

Rule 4B-8-806.1 Statement of Sex Crime, Physical Abuse or Neglect by Victim

Under Age Ten or Developmentally Disabled. A statement made by a child under the

age of ten, or by a child ten years of age or older who is developmentally disabled as

defined by law, describing any act of sexual contact or rape performed with or on the child

by another, or any act of physical abuse or neglect on another child observed by the child

making the statement, not otherwise admissible by statute or court rule, is admissible in

evidence in criminal proceedings against the defendant if:

(1)

The court finds, in a hearing conducted outside the presence of the jury,

that the time, content and circumstances of the statement provide sufficient

indicia of reliability; and

(2)

The child either:

(a)

Testifies at the proceedings; or

(b)

Is unavailable as a witness.

However, if the child is unavailable as a witness, such statement may be admitted only if

there is corroborative evidence of the act.

No statement may be admitted under this Rule unless the proponent of the statement

makes known his intention to offer the statement and the particulars of it, including the

name and address of the declarant 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 the

statement.

Rule 4B-8-806.2. Statements Alleging Child Abuse or Neglect. An out-of-court

statement not otherwise admissible by the rules of evidence is admissible in evidence in

any civil proceeding alleging child abuse or neglect or any proceeding for termination of

parental rights if:

(1)

The statement was made by a child under the age of ten years or by a child

ten years of age or older who is developmentally disabled; and

(2)

The statement alleges, explains, denies or describes:

(a)

any act of sexual penetration or contact performed with or on the

child; or

(b)

any act of sexual penetration or contact with or on another child

observed by the child making the statement; or

(c)

any act of physical abuse or neglect of the child by another; or

(d)

any act of physical abuse or neglect of another child observed by the

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child making the statement; and

(3)

The court finds that the time, content, and circumstances of the statement

and the reliability of the person to whom the statement is made provide

sufficient indicia of reliability; and

(4)

The proponent of the statement notifies other parties of an intent to offer the

statement and the particulars of the statement sufficiently in advance of the

proceeding at which the proponent intends to offer the statement into

evidence, to provide the parties with a fair opportunity to meet the

statement.

For purposes of this Rule, an out-of-court statement includes a video, audio or other

recorded statement.

Rule 4B-8-807. Residual Exception.

(1)

(2)

IN GENERAL. Under the following circumstances, a hearsay statement is

not excluded by the rule against hearsay even if the statement is not

specifically covered by a hearsay exception in Rule 4B-8-803 or -804:

(a)

the statement has

trustworthiness;

equivalent

circumstantial

guarantees

(b)

it is offered as evidence of a material fact;

(c)

it is more probative on the point for which it is offered than any other

evidence that the proponent can obtain through reasonable efforts;

and

(d)

admitting it will best serve the purposes of these rules and the

interests of justice.

NOTICE. The statement is admissible only if, before the trial or hearing, the

proponent gives an adverse party reasonable notice of the intent to offer the

statement and its particulars, including the declarant’s name and address,

so that the party has a fair opportunity to meet it.

Chapter 9. Authentication and Identification

Rule 4B-9-901. Authenticating or Identifying Evidence.

(1)

IN GENERAL. To satisfy the requirement of authenticating or identifying an

item of evidence, the proponent must produce evidence sufficient to support

a finding that the item is what the proponent claims it is.

(2)

EXAMPLES. The following are examples only—not a complete list—of

Title 4B, Rules of Evidence

evidence that satisfies the requirement:

(a)

Testimony of a Witness with Knowledge. Testimony that an item is

what it is claimed to be.

(b)

Nonexpert Opinion About Handwriting. A nonexpert’s opinion that

handwriting is genuine, based on a familiarity with it that was not

acquired for the current litigation.

(c)

Comparison by an Expert Witness or the Trier of Fact. A comparison

with an authenticated specimen by an expert witness or the trier of

fact.

(d)

Distinctive Characteristics and the Like. The appearance, contents,

substance, internal patterns, or other distinctive characteristics of the

item, taken together with all the circumstances.

(e)

Opinion About a Voice. An opinion identifying a person’s voice—

whether heard firsthand or through mechanical or electronic

transmission or recording—based on hearing the voice at any time

under circumstances that connect it with the alleged speaker.

(f)

Evidence About a Telephone Conversation. For a telephone

conversation, evidence that a call was made to the number assigned

at the time to:

(i) a particular person, if circumstances, including self-identification,

show that the person answering was the one called; or

(ii) a particular business, if the call was made to a business and the

call related to business reasonably transacted over the

telephone.

(g)

Evidence About Public Records. Evidence that:

(i) a document was recorded or filed in a public office as authorized

by law; or

(ii) a purported public record or statement is from the office where

items of this kind are kept.

(h)

Evidence About Ancient Documents or Data Compilations. For a

document or data compilation, evidence that it:

(i) is in a condition that creates no suspicion about its authenticity;

(ii) was in a place where, if authentic, it would likely be; and

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(iii) is at least 20 years old when offered.

(i)

Evidence About a Process or System. Evidence describing a

process or system and showing that it produces an accurate result.

(j)

Methods Provided by a Statute or Rule. Any method of authentication

or identification allowed by a federal statute or a rule prescribed by

the Supreme Court.

Rule 4B-9-902. Evidence That Is Self-Authenticating. The following items of evidence

are self-authenticating; they require no extrinsic evidence of authenticity in order to be

admitted:

(1)

(2)

(3)

Domestic Public Documents That Are Sealed and Signed. A document that

bears:

(a)

a seal purporting to be that of any tribe; the United States; any state,

district, commonwealth, territory, or insular possession of the United

States; the former Panama Canal Zone; the Trust Territory of the

Pacific Islands; a political subdivision of any of these entities; or a

department, agency, or officer of any entity named above; and

(b)

a signature purporting to be an execution or attestation.

Domestic Public Documents That Are Not Sealed but Are Signed and

Certified. A document that bears no seal if:

(a)

it bears the signature of an officer or employee of an entity named in

Rule 4B-9- 902(1)(A); and

(b)

another public officer who has a seal and official duties within that

same entity certifies under seal—or its equivalent—that the signer

has the official capacity and that the signature is genuine.

Foreign Public Documents. A document that purports to be signed or

attested by a person who is authorized by a foreign country’s law to do so.

The document must be accompanied by a final certification that certifies the

genuineness of the signature and official position of the signer or attester—

or of any foreign official whose certificate of genuineness relates to the

signature or attestation or is in a chain of certificates of genuineness relating

to the signature or attestation. The certification may be made by a secretary

of a United States embassy or legation; by a consul general, vice consul, or

consular agent of the United States; or by a diplomatic or consular official

of the foreign country assigned or accredited to the United States. If all

parties have been given a reasonable opportunity to investigate the

document’s authenticity and accuracy, the court may, for good cause,

either:

Title 4B, Rules of Evidence

(4)

(a)

order that it be treated as presumptively authentic without final

certification; or

(b)

allow it to be evidenced by an attested summary with or without final

certification.

Certified Copies of Public Records. A copy of an official record—or a copy

of a document that was recorded or filed in a public office as authorized by

law—if the copy is certified as correct by:

(a)

the custodian or another person authorized to make the certification;

(b)

a certificate that complies with Rule 4B-9-902(1), (2), or (3), a federal

statute, or a rule prescribed by the Supreme Court or tribal court.

(5)

Official Publications. A book, pamphlet, or other publication purporting to be

issued by a public authority.

(6)

Newspapers and Periodicals. Printed material purporting to be a newspaper

or periodical.

(7)

Trade Inscriptions and the Like. An inscription, sign, tag, or label purporting

to have been affixed in the course of business and indicating origin,

ownership, or control.

(8)

Acknowledged Documents. A document accompanied by a certificate of

acknowledgment that is lawfully executed by a notary public or another

officer who is authorized to take acknowledgments.

(9)

Commercial Paper and Related Documents. Commercial paper, a signature

on it, and related documents, to the extent allowed by general commercial

law.

(10)

Presumptions Under the Flandreau Santee Sioux Tribal Code or Flandreau

Santee Sioux Tribal Court Decision. A signature, document, or anything

else that a tribal code or tribal court declares to be presumptively or prima

facie genuine or authentic.

(11)

Certified Domestic Records of a Regularly Conducted Activity. The original

or a copy of a domestic record that meets the requirements of Rule 4B-8803(6)(A)–(C), as shown by a certification of the custodian or another

qualified person that complies with a tribal code provision, federal or state

statute, or a rule prescribed by the United States, a state or a tribal Supreme

Court. Before the trial or hearing, the proponent must give an adverse party

reasonable written notice of the intent to offer the record—and must make

the record and certification available for inspection—so that the party has a

fair opportunity to challenge them.

Title 4B, Rules of Evidence

(12)

Certified Foreign Records of a Regularly Conducted Activity. In a civil case,

the original or a copy of a foreign record that meets the requirements of

Rule 4B-9-902(11), modified as follows: the certification, rather than

complying with a tribal code provision or Supreme Court rule, must be

signed in a manner that, if falsely made, would subject the maker to a

criminal penalty in the country where the certification is signed. The

proponent must also meet the notice requirements of Rule 4B-9-902(11).

(13)

Certified Records Generated by an Electronic Process or System. A record

generated by an electronic process or system that produces an accurate

result, as shown by a certification of a qualified person that complies with

the certification requirements of Rule 4B-9-902 (11) or (12). The proponent

must also meet the notice requirements of Rule 4B-9-902 (11).

(14)

Certified Data Copied from an Electronic Device, Storage Medium, or File.

Data copied from an electronic device, storage medium, or file, if

authenticated by a process of digital identification, as shown by a

certification of a qualified person that complies with the certification

requirements of Rule 4B-9-902(11) or (12). The proponent also must meet

the notice requirements of Rule 4B-9-902(11).

Rule 4B-9-903. Subscribing Witness’s Testimony. A subscribing witness’s testimony

is necessary to authenticate a writing only if required by the law of the jurisdiction that

governs its validity.

Chapter 10. Contents of Writings, Recordings, and Photographs

Rule 4B-10-1001. Definitions That Apply to This Article. In this article:

(1)

A ‘‘writing’’ consists of letters, words, numbers, or their equivalent set down

in any form.

(2)

A ‘‘recording’’ consists of letters, words, numbers, or their equivalent

recorded in any manner.

(3)

A ‘‘photograph’’ means a photographic image or its equivalent stored in any

form.

(4)

An ‘‘original’’ of a writing or recording means the writing or recording itself

or any counterpart intended to have the same effect by the person who

executed or issued it. For electronically stored information, ‘‘original’’ means

any printout—or other output readable by sight—if it accurately reflects the

information. An ‘‘original’’ of a photograph includes the negative or a print

from it.

(5)

A ‘‘duplicate’’ means a counterpart produced by a mechanical,

photographic, chemical, electronic, or other equivalent process or technique

Title 4B, Rules of Evidence

that accurately reproduces the original.

(6)

“TDD,” or “TTY,” any auxiliary aids or services consisting of assistive

listening or transcription systems which allow the reception or transmission

of aurally delivered communication and materials for the benefit of

individuals with hearing, speech, or physical impairments.

Rule 4B-10-1002. Requirement of the Original. An original writing, recording, or

photograph is required in order to prove its content unless these rules or a federal statute

provides otherwise.

Rule 4B-10-1003. Admissibility of Duplicates. A duplicate is admissible to the same

extent as the original unless a genuine question is raised about the original’s authenticity

or the circumstances make it unfair to admit the duplicate.

Rule 4B-10-1004. Admissibility of Other Evidence of Content. An original is not

required and other evidence of the content of a writing, recording, or photograph is

admissible if:

(1)

all the originals are lost or destroyed, and not by the proponent acting in

bad faith;

(2)

an original cannot be obtained by any available judicial process;

(3)

the party against whom the original would be offered had control of the

original; was at that time put on notice, by pleadings or otherwise, that the

original would be a subject of proof at the trial or hearing; and fails to

produce it at the trial or hearing; or

(4)

the writing, recording, or photograph is not closely related to a controlling

issue.

Rule 4B-10-1005. Copies of Public Records to Prove Content. The proponent may

use a copy to prove the content of an official record—or of a document that was recorded

or filed in a public office as authorized by law—if these conditions are met: the record or

document is otherwise admissible; and the copy is certified as correct in accordance with

Rule 4B-9-902(4) or is testified to be correct by a witness who has compared it with the

original. If no such copy can be obtained by reasonable diligence, then the proponent

may use other evidence to prove the content.

Rule 4B-10-1006. Summaries to Prove Content. The proponent may use a summary,

chart, or calculation to prove the content of voluminous writings, recordings, or

photographs that cannot be conveniently examined in court. The proponent must make

the originals or duplicates available for examination or copying, or both, by other parties

at a reasonable time and place. And the court may order the proponent to produce them

in court.

Rule 4B-10-1007.

Testimony or Statement of a Party to Prove Content.

Title 4B, Rules of Evidence

The

proponent may prove the content of a writing, recording, or photograph by the testimony,

deposition, or written statement of the party against whom the evidence is offered. The

proponent need not account for the original.

Rule 4B-10-1008. Functions of the Court and Jury. Ordinarily, the court determines

whether the proponent has fulfilled the factual conditions for admitting other evidence of

the content of a writing, recording, or photograph under Rule 4B- 10-1004 or -1005. But

in a jury trial, the jury determines—in accordance with Rule 4B-1- 104(b)—any issue

about whether:

(1)

an asserted writing, recording, or photograph ever existed;

(2)

another one produced at the trial or hearing is the original; or

(3)

other evidence of content accurately reflects the content.

Rule 4B-10-1009. Use of Video Tape Recordings as Evidence. Video tape recordings

which contain relevant evidence in either a civil or criminal proceeding shall be admissible

as evidence provided that the proper foundation for admission has set out as required by

this Chapter, and provided further that the person making the recording testifies to the

contents of the recording and the opposing party has an opportunity to cross-examine the

person who made the recording.

Rule 4B-10-1010. TDD and TTY communications inadmissible as evidence. The

writings or tapes resulting from any communication directly or indirectly through TDD or

TTY are inadmissible as evidence of those communications in any court of law, legal

proceeding, or administrative hearing. This Rule does not preclude the interception of

wire communications pursuant to lawful court order.

LEGISLATIVE HISTORY

This Amended Title 4B Rules of Evidence was enacted by the Flandreau Santee Sioux

Tribe Executive Committee on September 3, 1996, by Resolution Number 96-55. This

Amended TITLE was re-enacted by the Flandreau Santee Sioux Tribe Executive

Committee, on February , 2019, by Resolution 19-09, and it was further favorably

reviewed and approved by the Bureau of Indian Affairs on

, 2018.

Title 4B, Rules of Evidence

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.