# FLANDREAU SANTEE SIOUX TRIBE LAW AND ORDER CODE

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## Record

- **Collection:** Tribal code
- **Document type:** Tribal code

## Text

FLANDREAU SANTEE SIOUX TRIBE LAW AND ORDER CODE
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

14

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

15

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

16

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

17

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;
or
(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

18

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

19

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

20

(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

21

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

22

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

23

(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

24

1.
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
2.
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

25

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

26

(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

27

(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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28

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

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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

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30

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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31

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

Title 4B, Rules of Evidence

32

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

of

(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

33

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

Title 4B, Rules of Evidence

34

(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

35

(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;
or

(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

36

(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

37

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

38

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

39

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/tribal%3Aflandreau_santee_sioux%3Abff2dedac7c2049a. Public record. Not legal advice.