KICKAPOO TRIBE OF OKLAHOMA

KICKAPOO TRIBE OF OKLAHOMA

RULES OF EVIDENCE

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KICKAPOO TRIBE OF OKLAHOMA

RULES OF EVIDENCE

TABLE OF CONTENTS

Section Name

CHAPTER ONE

GENERAL PROVISIONS

101 Scope

102 Purpose and Construction

103 Rulings on Evidence

104 Preliminary Questions

105 Limiter Admissibility

106 Remainder or Related Writings or Recorded Statements

CHAPTER TWO

JUDICIAL NOTICE

201 Judicial Notice of Adjudicative Facts

CHAPTER THREE

PRESUMPTIONS

301 Presumptions in General in Civil Actions and Proceedings

CHAPTER FOUR

RELEVANCY AND ITS LIMITS

401 Definition of "Relevant Evidence "

402 Relevant Evidence Generally Admissible Irrelevant Evidence

Jnadmissible

403 Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion,

or Waste of Time

404 Character Evidence Not Admissible to Prove Conduct; Exceptions;

Other Crimes

405 Methods of Proving Character

406 Habit; Routine Practice

407 Subsequent Remedial Measures

408 Compromise and Offers to Compromise

409 Payment of Medical and Similar Expenses

410 Inadmissibility of Pleas, Offers of Pleas, and Related Statements

411 Liability Insurance

CHAPTER FIVE

PRIVILEGES

501 Privileges Recognized Only as Provided

502 Lawyer-Client Privilege

503 Physician and Psychotherapist-Patient Privilege

504 Husband and Wife Privilege

505 Religious Privilege

506 Political Vote

507 Trade Secrets

508 Secrets of the Tribal Government and Other Official Information:

Governmental Privileges

509 Identity of Informer

510 Waiver of Privilege by Voluntary Disclosure

511 Privileged Matter Disclosed Under Compulsion or Without

Opportunity to Claim Privilege.

512 Comment Upon and Inference from Claim of Privilege; Instruction

CHAPTER SIX

WITNESSES

601 General Rules of Competency

602 Lack of Personal Knowledge

603 Oath or Affirmation

604 Interpreters

606 . Competency of Juror as Witness

607 Who May Impeach

608 Evidence of Character and Conduct of Witness

609 Impeachment by Evidence of Conviction of Crime

610 Religious Beliefs or Opinions

611 Mode and Order of Interrogation and Presentation

612 Writing Used to Refresh Memory

613 Prior Statements of Witness

614 Calling and Interrogation of Witness by Court

615 Exclusion of Witnesses

CHAPTER SEVEN

OPINIONS AND EXPERT TESTIMONY

701 Opinion Testimony by Lay Witnesses

702 Testimony by Experts

703 Oath or Affirmation

704 Opinion on Ultimate Issue

705 Disclosure of Facts or Data Underlying Opinion

706 Court Appointed Experts

SP,

CHAPTER EIGHT

HEARSAY

801 Definitions

802 Hearsay Rule

803 Hearsay Exceptions; Availability of Declarant Immaterial

804 Hearsay Exceptions; Declarant Unavailable

805 Hearsay Within Hearsay

806 Attacking and Supporting Credibility of Declarant

CHAPTER NINE

AUTHENTICATION AND IDENTIFICATION

901 Requirement of Authentication or Identification

902 Self- Authentication

903 Subscribing Witness Testimony Unnecessary

CHAPTER TEN

CONTENTS OF WRITING, RECORDINGS, AND PHOTOGRAPHS

1001 Definitions

1002 Requirement of Original

1003 Admissibility of Duplicates

1004 Admissibility of Other Evidence of Contents

1005 Public Records

1006 Summaries

1007 Testimony or Written Admission of Party

1008 Functions of Court and Jury

CHAPTER ELEVEN

MISCELLANEOUS RULES

1101 Applicability of Rules

1102 Amendments

1103 Title

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KICKAPOO TRIBE OF OKLAHOMA

RULES OF EVIDENCE

ENACTMENT CLAUSE

BE IT ENACTED BY THE COUNCIL OF THE KICKAPOO TRIBE OF

OKLAHOMA THE ORDINANCE OF RULES OF EVIDENCE FOR ALL

MEMBERS OF THE KICKAPOO TRIBE OF OKLAHOMA.

KICKAPOO TRIBE OF OKLAHOMA

RULES OF EVIDENCE

CHAPTER ONE

GENERAL PROVISIONS

Section 101. Scope

This Title governs evidential question in all proceedings on the Courts

of the Tribe, whether civil, criminal, juvenile, or otherwise except as may be

otherwise specifically provided by Tribal law.

Section 102. Purpose and Construction

This Title shall be constructed to secure fairness in administration,

elimination of unjustifiable expense and delay, and promotion of growth and

development of the law of evidence to the end that the truth may be ascertained

and proceedings justly determined.

Section 103. Rulings on Evidence

(a) Effect of erroneous ruling. Error may not be predicated, nor a

judgment reversed of modified, upon a ruling which admits or excludes evidence

unless a substantial right of the party is affected, and:

(4) = Objection. In case the ruling is one admitting evidence, a

timely objection or motion to strike appears of record, stating the specific

ground of objection, ifthe specific ground was not apparent from the context; or

(2) Offer of proof. In case the ruling is one excluding evidence,

the substance of the evidence was made known to the court by offer of

proof, or was apparent in question and answer form.

(b) Record of offer and ruling. The court may add any other or

further statement which shows the character of the evidence, the form in which it

was offered, the objection made, and the ruling therein. It may direct the making

of an offer on question and answer form.

(c) Hearing of jury. In jury cases, proceedings shall be conducted, to

the extent practicable, so as to prevent inadmissible evidence from being suggested

to the jury by any means, such as making statements or offers of proof or asking

questions in the hearing of the jury. Questions on evidentiary matters known to be

in issue prior to trial may be determined by a hearing prior to trial, and the

matter does not have to be raised at the trial by the party whose evidence is

ruled inadmissible in order to preserve the error so long as the error of apparent

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from the transcript of the hearing . Questions which arise concerning the

admissibility of evidence during the trial may be resolved on open Court, if

practicable, or a recess may be taken and a hearing held upon the admissibility of

the evidence at issue.

(d) Plain error. Nothing in this Section precludes taking notice of plain

errors affecting substantial rights although they were not brought to the attention

of the court.

Section 104. Preliminary Questions

(a) Question of admissibility generally. Preliminary questions

concerning the qualification of a person to be a witness, the existence of a

privilege, or the admissibility of evidence shall be determined by the court, subject

to the provisions of subdivision (b). In making its determination it is not bound

by this Title except those provisions with respect to privileges.

(b) Relevancy conditions on fact. When the relevancy of evidence

depends upon the fulfillment of a condition of fact, the court shall admit it upon,

or may admit it subject to, the introduction of evidence sufficient to support a

finding of the fulfillment of the condition.

(c) Hearing of jury. Hearings on the admissibility of confessions on a

criminal case shall in all cases be conducted out of the hearing of the jury.

Hearings on other preliminary matters shall be so conducted when the interests of

justice require or, when an accused in a criminal case is a witness, if he so

requests.

(d) Testimony by accused. The accused in a criminal case does not, by

testifying upon a preliminary matter, or other matter which would be heard outside

the hearing of the jury, if any, subject himself to cross-examination as to other

issues of the case. The accused on a criminal case waives his right against selfincrimination as to all issues in the case by testifying upon any fact pertaining to

any element of the charge against him during the actual trial of the case before

the jury or other finder of fact.

(e) Weight and credibility. This Section does not limit the right of a

party to introduce before the jury evidence relevant to weight or credibility.

Section 105._Limited Admissibility

When evidence which is admissible as to one party or for one purpose but

not admissible as to another party or for another purpose is admitted, the court,

upon request, shall restrict the evidence to its proper scope and instruct the jury

accordingly,

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Section 106, Remainder or Related Writings or Recorded Statements

When a writing or recorded statement or part thereof is introduced by a party,

an adverse party may require him at that time to introduce any other part or any other

writing or recorded Statement which ought in faimess to be considered

contemporaneously with it.

CHAPTER TWO

JUDICIAL NOTICE

Section 201, Judicial Notice of Adjudicative Facts

(a) Scope of Chapter. This Chapter governs only judicial notice of

adjudicative facts.

(b) Kinds of facts. A Judicially noticed fact must be one not subject

to reasonable dispute in that it is either

qd) generally known within the territorial jurisdiction of the

Court, or,

(2) capable of accurate and teady determination by resort to

Sources whose accuracy cannot reasonably be questioned.

(c) When discretionary. The Courts may take judicial notice, whether

requested or not.

(4) When mandatory, The Courts shall take judicial notice if

Fequested by a party and supplied with the necessary information, or when

required to do so by Tribal law.

¢ Time of taking notice, Judicial notice may be taken at any stage of the

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proceeding,

(g) Instructing jury. In a civil action or proceeding, the court shall instruct

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the jury to accept as conclusive any fact judicially noticed. In a criminal case, the court

shall instruct the jury that it may, but is not required to , accept as conclusive any fact

judicially noticed. ;

CHAPTER THREE

PRESUMPTIONS

Section 301. Presumptions in General in Civil Actions and Proceedings

In all civil and criminal actions and proceedings, a presumption imposes upon

the party against whom it is directed the burden of going forward with evidence to

rebut or meet the presumption, but does not shift the risk of nonpersuasion, which

remains upon the party on whom it was originally cast.

CHAPTER FOUR

RELEVANCY AND ITS LIMITS

Section 401. iti " i "

"Relevant evidence" means evidence having any tendency to make the

existence of any fact that is of consequence to the determination of the action

more probable or less probable than it would be without the evidence.

Section 402. Relevant Evidence Generally Admissible Irrelevant Evidence

Inadmissibl

All relevant evidence is admissible, except as otherwise provided by the

Constitution of the Tribe, by Act or Ordinance of the Legislative Authority of the

Tribe, by this Title, or by other rules prescribed by the Supreme Court of the

Tribe pursuant to statutory authority. Evidence which is not relevant is not

admissible.

Section 403. Exclusion of Relevant Evidence on Grounds of Prejudice,

Conclusi Ww Ti

Although relevant, evidence may be excluded if its probative value is

substantially outweighed by the danger of unfair prejudice, confusion of the issues,

or misleading the jury, or by considerations of undue delay, waste of time, or

needless presentation of cumulative evidence, or if it is inadmissible pursuant to

some Section of this Title.

Section 404. Character Evidence Not Admissible to Prove Conduct;

E ions: Other Cri

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(a) Character evidence generally. Evidence of a person's character or a trait

of his character is not admissible for the purpose of proving that he acted in

conformity therewith ona particular occasion, except;

(1) Character of accused. Evidence of a pertinent trait of his character

offered by an accused, or by the prosecution to rebut the same after the accused

has offered such character evidence;

(2) Character of victim. Evidence ofa pertinent trait of character of the

victim of the crime offered by an accused, or the prosecution to rebut the same

after the accused has offered such character evidence, or evidence of a character

trait of peacefulness of the victim offered by the prosecution in a homicide case

to rebut evidence that the victim was the first ageressor;

(3) Character of witness. Evidence of the character of a witness, as

provided in Sections 607, 608, and 609 of this Title.

(4) Other crimes, wrongs, or acts. Evidence of other crimes, wrongs,

or acts isnot admissible to prove the character of a person in order to show that

he acted in conformity therewith. It may, however, be admissible for other

purposes, such as proof of motive, opportunity, intent, preparation, plan,

knowledge, identity, or absence of mistake or accident.

Section 405. _Methods of Proving Character

(a) Reputation or opinion. In all cases in which evidence of character or

a trait of character of a person is admissible, proof may be made by testimony as

to reputation or by testimony in the form ofan opinion. On cross-examination,

inquiry is allowable into relevant specific instances of conduct.

(b) Specific instances of conduct. In cases in which character or a trait of

character of a person is an essential element of a charge, claim, or defense, proof

may also be made specific instances of his conduct.

Section 406. Habit: Routine Practice

Evidence of the habit of an or the routine practice of an organization,

whether corroborated or not and regardless of the person or organization on a

particular occasion was in conformity with the habit or routine practice.

Section 407. Subsequent Remedial Measures

When after an event, measures are taken which, if taken previously, would have

made the event less likely to occur, evidence of the subsequent measures is not admissible

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to prove negligence or culpable conduct in connection with the event, in order to

encourage additional safety measures to be taken for the protection of the public whether

or not the previous measures were sufficient to prevent a finding of negligent or culpable

conduct. This Section does not require the exclusion of evidence of subsequent measures

when offered for another purpose, such as proving ownership, control, or feasibility of

precautionary measures, if controverted, or impeachment.

Section 408. Compromise and Offers to Compromise

In order to encourage the non-judicial settlement of disputes, evidence of:

(a) furnishing or offering or promising to furnish, or

(b) accepting or offering or promising to accept,

a valuable consideration in compromising or attempting to compromise a claim which

was disputed as to either validity or amount, is not admissible to prove liability for or

invalidity of the claim or its amount. Evidence of conduct or statements made in

compromise negotiations is likewise not admissible. This Section does not require the

exclusion of any evidence otherwise discoverable merely because it is presented in the

course of compromise negotiations. This Section also does not require exclusion when

the evidence is offered for another purpose, such as proving bias or prejudice of a witness,

negativing a contention of undue delay, or proving an effort to obstruct a criminal

investigation or prosecution.

Section 409. Payment of Medical and Similar Expenses

In order to encourage non-judicial settlement of disputes and to encourage persons

to assist one another for their joint benefit, evidence of furnishing or offering or promising

to pay, or the payment of medical, hospital, or similar expenses occasioned by an injury is

not admissible to prove liability for the injury. Evidence of payment of such charges may

be introduced by the person making such payment for the purpose of reducing a judgment

for damages.

Section 410. Anadmissibility of Pleas. Offers of Pleas, and Related Statements

(a) Except as otherwise provided in this Section, evidence of a plea of guilty, later

withdrawn, or a plea of nolo contendere, or of any offer to plead guilty or nolo contendere

to the crime charged or any other crime, or of statements made in connection with, and

relevant to, any of the foregoing pleas or offers, is not admissible in any civil or criminal

proceeding against the person who made the plea or offer. However, evidence of a

statement made in connection with, and relevant to, a plea of guilty, later withdrawn, a

plea of nolo contendere, or any other crime, is admissible in a criminal proceeding for

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perjury or false statement if the statement was made by the defendant under oath, on the

record, and in the presence of counsel.

(b) In the sound discretion of the Tribal District Court, and subject to any exclusionary

tule promulgated by Supreme Court of the Tribe, evidence that a person was or was not

insured against liability and the limits of coverage and other relevant factors is admissible

in a bifurcated jury or judge trial sounding in tort, or otherwise, in the second phase of the

trial upon the issue of the amount of actual and consequential damages to be awarded,

after liability has been determined in the first phase of the trial, as provided in the Civil

Procedure Act.

Section 411. Liability Insurance

(a) Evidence that a person was or was not insured against liability is not

admissible upon the issue whether he acted negligently or otherwise wrongfully. This

Section does not require the exclusion of evidence of insurance against liability when

offered for another purpose, such as proof of agency, ownership, or control, or bias or

prejudice of a witness.

(b) In the sound discretion of the Tribal District Court, and subject to any

exclusionary rule promulgated by Supreme Court of the Tribe, evidence that a person was

or was not insured against liability and the limits of coverage and other relevant factors is

admissible in a bifurcated jury or judge trial sounding in tort, or otherwise, in the second

phase of the trial upon the issue of the amount of actual and consequential damages to be

awarded, after liability has been determined in the first phase of the trial, as provided in the

Civil Procedure Act.

CHAPTER FIVE

PRIVILEGES

Section 501._Privileges Recognized Only as Provided

Except as otherwise provided by the Tribal Constitution or Tribal Statute.

including this Title, or rules promulgated by the Supreme Court of the Tribe pursuant to

legislative authority, or as may be required by federal law, no person has a privilege to:

(a) refuse to be a witness;

(b) refuse to disclose ant matter;

(c) refuse to produce any object or writing; or

(d) prevent another from being a witness or disclosing any matter or

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producing any object or writing.

Section 502. Lawyer-Client Privilege

(a) Definitions. As used in the Section:

(1) A "Client" is a person, public officer, or corporation, 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 by any Indian tribe, or 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

retention of professional legal services to the client or those reasonable necessary for

the transmission of the communication, including close relatives who assist the client in

obtaining legal counsel and whom the client requests to be present during discussions with

the lawyer for the purpose of obtaining representation.

(b) General rule of privilege. 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 or 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

representation of the client, or (5) among lawyers and their

representatives representing the same client.

(c) Who may claim the privilege. The privilege may be claimed by the cl

client, his guardian or conservator or close relative who assists in obtaining legal

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

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

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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 on behalf of the

client. ;

(d) Exceptions. There is no privilege under this Section.

(1) Furtherance of crime or fraud. 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) Claimants through same deceased client. 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 intervivos

transaction;

(3) Breach of duty by a lawyer or client. 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) Document attested by a lawyer. As to a communication

relevant to an issue concerning an attested document to which the lawyer is an attesting

witness;

(5) Joint clients. |§ 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 or;

(6) Public officer or agency. As to a communication between a public

officer or agency and its lawyers unless the communication concems a pending or

‘contemplated investigation, claims, or action and the court determines that disclosure will

seriously impair the ability of the public officer or agency to process the claim or conduct

a pending investigation, litigation, or proceeding in the public interest. Communications

of the communications have been released for public information by the appropriate Tribal

officials.

Section 503. _Physician and Psychotherapist - Patient Privilege

(a) Definitions. As used in this Section:

(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 to practice medicine or the

healing arts by any Indian tribe, or state, or nation, or reasonably believed by the patient so

to be.

(3) A"psychotherapist" is:

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(i) a person licensed or certified as a psychologist under the laws

of any Indian tribe, or state, or nation, or reasonably believed by the patient so to be, while

engaged in a diagnosis or treatment of a mental or emotional condition, including alcohol

or drug addiction, or

(ii) a person licensed or certified as a psychologist under the laws

of any Indian tribe, or state, or nation, while similarly engaged.

(4) A communication is "confidential" if not intended to be disclosed to third

persons, except persons present to further the interest of the 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.

(b) General rule of privilege. Patient has a privilege to refuse to disclose and

to prevent any other person from disclosing confidential communications made for the

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

alcohol or drug addiction, among himself, his physical 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.

(c) Who may claim the privilege. The privilege 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,

and any other persons directly involved in treatment sessions, are presumed to have

authority to claim the privilege but only on behalf of the patient.

(d) Exceptions.

(1) Proceeding for hospitalization. There is no privilege under this

Section for communications relevant to an issue in proceedings to hospitalize the patient

for mental illness, if the physician or psychotherapist in the course of diagnosis or

treatment has determined that the patient is in need of hospitalization.

(2) Examination by order of court. Ifthe 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 this Section with

respect to the particular purpose for which the examination is ordered unless the court

orders otherwise.

(3) Condition an element of claim or defense. There is no

privilege under this Section 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.

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Section 504, Husband and Wife Privilege

(a) Definition. A communication is confidential if it is made privately by any

person to his or her spouse from testifying as to any confidential communication between

the accused and the spouse.

(b) General rule of privilege. An accused in a criminal proceeding has a

privilege to prevent his spouse from testifying as to any confidential communication

between the accused and the spouse.

(c) Exceptions. There is no privilege under this Section in a proceeding for

legal separate or divorce between the parties when the communication is relevant to the

issues in the action for separate maintenance or divorce, or in which one spouse is charged

with a crime against the person or property of:

(1) the other,

(2) achild of either,

(3) a person residing in the household of either, or

(4) a third person committed in the course of committed a crime against

any of them.

Except in an action brought by the Tribe to protect a child subject to abuse, neglect, or

other cause which sufficient to maintain a juvenile court action, testimony received

pursuant to this exception in an action for divorce or legal separate between the husband

and wife may not used or referred to in any other proceeding between either the husband

or wife and third persons.

Section 505. _Religious Privilege

(a) Definitions. As used in this Section:

(1) A "clergyman" is a minister, priest, rabbi, accredited Christian Science

Practitioner, Native American Church Roadman, properly authorized traditional band or

society headsman or firekeeper or other similar functionary of a religious organization of a

recognized active traditional Tribal religion, or an individual reasonably believed so to be

by the person consulting him.

(2) Acommunication is "confidential" if made privately and not intended

for further disclosure except to other persons present or to other persons to whom

disclosure would be privileged under this Title if the disclosure had been made directly to

such other person in furtherance of the purpose of the communication.

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(b) General rule of privilege. A person has a privilege to refuse to disclose

and to prevent another from disclosing a confidential communication by the person to a

clergyman in his professional character as spiritual adviser.

(c) Who may claim the privilege. The privilege 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 clergyman at the time of the communication, is presumed to have

authority to claim the privilege but only on behalf of the communicant.

Section 506. _Political Vote

(a) General rule of privilege. | Every person has a privilege to refuse to

disclose the tenor of his vote at any political election conducted by secret ballot.

(b) Exceptions. 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.

Section 507. Trade Secrets

A person has a privilege, which may be claimed by himor 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 interests of justice

require.

Section 508. _Secrets of the Tribal Government and Other Official Information:

G LPriviles

(a) If the law of the United States creates a governmental privilege that the

courts of this Tribe must recognize under the Constitution and statues of the United

States, the privilege may be claimed as provided by the law of the United States.

(b) No other special governmental privilege is recognized except as created by

the Constitution or statutes of the Tribe, including this Title.

(c) Privileges Recognized. The following governmental privileges are

recognized:

(1) Elected members of the Tribal Legislature have a privilege against disclosure

of their mental processes and reasoning in the casting of any vote by them at a duty

constituted meeting of that body, except in cases where it is alleged that unlawful

influence or bribery or attempted bribery was involved in that vote. This privilege may be

claimed only by the member and is waived if the member testifies as to such matters.

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(2) Justices, Judges, and Magistrates have a privilege against disclosure of their

mental processes and reasoning in the determination of any matter before them in any

proceeding collateral to that matter, except in a collateral proceeding where it is alleged

that unlawful influence or bribery or attempted bribery was involved in the underlying

matter. The explanation and reasons for the decision of Judicial Officers which should

appear on the record shall be sufficient. This Section shall not preclude the Supreme

Court of the Tribe from remanding an action to a Judge or Magistrate for further findings

of fact or conclusions of law in order to obtain an adequate record for review or to

determine all issues necessary to a decision in a case.

(2) Testimony on relevant issue. 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 public entity is a

party, and the informed public entity invokes the privilege, the court shall give the public

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 courts finds that there is a reasonable

probability that the informer can give the testimony, and the public 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:

requiring the prosecuting attorney to comply with a defense request for relevant

information, granting the defendant additional time or a continuance, relieving the

defendant from making disclosures otherwise required of him, prohibiting the prosecuting

attomey from introducing specific evidence, and dismissing charges. In civil cases the

court may make any order the interests of justice require. Evidence submitted to the court

in_camera. shall be sealed and preserved to be made available to the Supreme 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.

Section 509, Identity of Informer

(a) Rule of Privilege. The Tribe, the United States, or a state, or subdivision

thereof having police powers 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 member of a legislative committee or its

staff conducting an investigation.

(b) Who may Claim. The privilege may be claimed by an appropriate

representative of the public entity to which the information was furnished.

(c) Exceptions:

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(1) Voluntary disclosure; informer a witness. No privilege exists under

this Section 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 or be

adversely affected by the communication buy a holder of the privilege or by the informer's

own action, or if the informer appears as a witness for the government.

(2) Testimony on relevant issue. 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 public entity is a

party, and the informed public entity invokes the privilege, the court shall give the public

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 courts finds that there is a reasonable

probability that the informer can give the testimony, and the public 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:

requiring the prosecuting attorney to comply with a defense request for relevant

information, granting the defendant additional time or a continuance, relieving the

defendant from making disclosures otherwise required of him, prohibiting the prosecuting

attorney from introducing specific evidence, and dismissing charges. In civil cases, the

court may make any order the interests of justice require. Evidence submitted to the court

in_camera shall be sealed and preserved to be made available to the Supreme 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.

Section 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

contents to disclosure of any significant part of the privileged matter. This Section does

not apply if the disclosure itself is privileged.

Section Sil. Privileged Matter Disclosed Under Compulsion or without

i : Claim Priviles

A claim of privilege is not defeated by a disclosure which was (1) compelled

erroneously or (2) made without opportunity to claim the privilege.

Section 512. Comment Upon and Inference From Claim of Privilege: Instruction

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(a) Comment or inference not permitted. The claim of a privilege, whether in

the person proceeding or upon a prior occasion, is not a proper subject of comment by

judge or counsel. No inference may be drawn therefrom.

(b) Claiming privilege without knowledge of jury. In jury cases, proceeding

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

privilege without the knowledge of the jury.

(c) Jury instruction. 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 thereform.

CHAPTER SIX

WITNESSES

Section 601. General Rules of Competency.

Every person is competent to be a witness except as otherwise provided in this

Title or other relevant Tribal law.

Section 602. Lack of Personal Knowledge

A witness may not testify to a matter unless evidence is introduced sufficient to

support a finding that he has personal knowledge of the matter. Evidence to prove

personal knowledge may, but need not, consist of the testimony of the witness himself.

This Section is subject to the provisions of Section 703, relating to opinion testimony by

expert witnesses.

Section 603. Oath or Affirmation

Before testifying, every witness shall be required to declare that he will testify

truthfully, by oath or affirmation administered in a form calculated to awaken his

conscience and impress his mind with his duty to do so.

Section 604. Interpreters.

An interpreter is subject to the provisions of this Title relating to qualification as an

expert and the administration of an oath or affirmation that will make a true translation.

Section 605. Competency of Judge as Witness

the judge presiding at the trial may not testify in that trial as a witness. No

objection need be made in order to preserve the point.

Section 606. Competency of Juror as Witness

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(a) Atthe trial. A member of the jury may not testify as a witness before that

jury in the trial of the case in which he is sitting as a juror. If he is called to testify the

opposing party shall be afforded an opportunity to object out of the presence of the jury.

(b) Inquiry into validity of a verdict or indictment. Upon an inquiry into the

validity of a verdict or indictment, a juror may not testify as to any matter the validity or

statement occurring during the course of the jury's deliberations or to the effect of

anything upon his or any other juror' s mind or emotions as influencing him to assent to or

dissent from the verdict or concerning his mental processes in connection therewith,

except that a juror may testify on the question whether extraneous prejudicial information

was improperly brought to the jury's attention, whether the jury determined the verdict,

amount of damages, sentence or other matter relevant to a determination of the issues in

the case by flipping a coin or other method determined purely by chance, or whether any

outside influence was improperly brought to bear upon any juror. Nor may his affidavit or

evidence of any statement by him concerning a matter about which he would be precluded

from testifying be received for these purposes.

Section 607. Who May Impeach

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

calling him.

Section 608. Evidence of Character and Conduct of Witness

(a) Opinion and reputation evidence of character. The credibility of a

witness may be attacked or supported by evidence in the form of opinion or reputation,

but subject to these limitations:

(4) the evidence may refer only to charter for truthfulness or

untruthfulness, and

(2) evidence of truthful character is admissible only after the charter of

the witness for truthfulness has been attacked by opinion or reputation evidence or

otherwise.

(b) Specific instances of conduct. Specific instances of the conduct of a

witness, for the purpose of attacking or supporting his credibility, other than conviction of

crime as provided in Section 609, may not be proved by extrinsic evidence. Specific

instances of conduct may, however in the discretion of cross-examination of the witness.

(1) concerning his charter for truthfulness or untruthfulness, or

(2) concerning the character for truthfulness or untruthfulness of another

witness as to which character the witness being cross-examined has testified.

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Section 609. Impeachment by Evidence of Conviction of Crime

(a) General Rule. For the purpose of attacking the credibility of a witness,

evidence that he has been convicted of a crime shall be admitted if elicited from him or

established by public record during cross-examination but only if the crime

(1) was punished by death or imprisonment in excess of one year under a

federal or state law, under which he was convicted, and the Court determines that the

probative value of admitting this evidence outweighs its prejudicial effect to the defendant

(if it is the defendant in a criminal case whose credibility is being questioned), or

(2) involved dishonesty or false statement, regardless of the punishment

or jurisdiction involved or

(3) was punishable by banishment or imprisonment for six months, or is

otherwise classified as a serious offense under the laws of an Indian Tribe in whose Courts

the conviction was obtained.

(b) Time limit. Evidence of a conviction under this Section is not admissible if a

period of more than ten years has lapsed since the date of the conviction or of the release

of the witness from the confinement or other punishment imposed for that conviction,

whichever is the later date, unless the Court determines in the interests of justice, that the

probative value of the conviction supported by specific facts and circumstances

substantially outweighs its prejudicial effect. However, evidence of a conviction more that

10 years old as calculated herein, is not admissible unless the proponent gives to the

adverse party sufficient advance written notice of intent to use such evidence to provide

the adverse party with a fair opportunity to contest the use of such evidence. Subject to

subsection (c) of this Section and the discretion of the Court, such convictions are

admissible convictions not ten years old as calculated herein have occurred since the

conviction in question.

(c) Effect of pardon, annulment, or certificate of rehabilitation.

Evidence of a conviction is not admissible under this Section ift

(1) the conviction has been the subject of a pardon, annulment, certificate

of rehabilitation, or other equivalent procedure based on a finding of the rehabilitation of

the person convicted, and that person has not been convicted of a subsequent crime which

would be admissible under subparagraph (a) above, or

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

equivalent procedure based on a finding of innocence.

(d) Juvenile adjudications. Evidence of juvenile adjudications is generally not

admissible under this Section. The Court may, however, in a criminal case allow evidence

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of a juvenile adjudication of a witness, other than the accused, if conviction of the offense

would be admissible to attack the necessary for a fair determination of the issue of guilt or

innocence of the accused.

(e) Pendency of appeal. The pendency of an appeal therefrom does not render

evidence of a conviction inadmissible. Evidence of the pendency of an appeal is admissible

when evidence of the underlying convictions in the case has been introduced.

Section 610. Religious Beliefs or Opinions

Evidence of the beliefs or opinions of a witness on matters of religion is not

admissible for the purpose of showing that by reasons of their nature his credibility is

impaired or enhanced.

Section 611. Mode and Order of Interrogation and Presentation

(a) Control by Court. The court shall exercise reasonable control over the

mode and order of interrogating witness and presenting evidence so as to:

(1) make the interrogation and presentation effective for the

ascertainment of the truth,

(2) avoid needless consumption of time, and

(3) protect witness from unnecessary harassment or undue

embarrassment.

(b) Scope of cross-examination. Cross-examination should be limited to the

subject matter of the direct examination and matters affecting the credibility of the witness.

The Court may, in the exercise of discretion, permit inquiry into additional matters as if on

direct examination.

(c) Leading questions. A leading question is ordinarily a question which calls

for a yes or a no answer. Leading questions should not be used on the direct examination

of a witness except as may be necessary to develop his testimony. Ordinarily leading

questions should be permitted on cross-examination. When a party calls a child of young

age, infirmity, lack of understanding of the English language, or other cause, a hostile

witness, an adverse party, or a witness identified with an adverse party, interrogation may

be by leading questions.

Section 612. Writing Used to Refresh Memory.

(a) Ifa witness uses a writing to refresh his memory either while testifying or

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

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to inspect it, to cross-examine the witness thereon, and to introduce in evidence those

portions which relate to the testimony of the witness.

(b) If it is claimed that the writing contains matters not related to the subject

matter of the testimony the Court shall examine the writing in camera, exercise any

portions not so related and order delivery of the remainder to the party entitled thereto.

Any portion withheld over objections shall be preserved and made available to the

Supreme Court shall make any order justice requires, except that in criminal cases when

the prosecution elects not to comply, the Court may declare a mistrial.

Section 613. Prior Statements of Witnesses

(a) Examining witness concerning prior statements. In examining a witness

concerning a prior statement made by him, whether written or not, the statement need not

be shown nor its contents disclosed to him at the time, but on request the same shall be

shown or disclosed to opposing counsel.

(b) Extrinsic evidence of prior inconsistent statements of witness.

Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless

the witness is afforded in opportunity to explain or deny the same and the opposing party

is afforded in opportunity to explain or deny the same and the interests of justice otherwise

require. This provision does not apply to admissions of a party opponent as defined in

Section 801 (d) (2). |

Section 614. _Calling and Interrogation of Witnesses by Court

(a) Calling by Court. The court may, on its own motion or at the

suggestion of a party, call witnesses, and all parties are entitled to crossexamine witnesses thus called.

(b) Interrogation by court. The court may, interrogate witnesses,

whether called by itself or by a party.

(c) Objections. Objections to the calling of witnesses by the Court or

interrogation by it may be made at the time or at the next available opportunity when the

jury is not present. Ordinarily, the Court should exercise its authority to call or question

witnesses with great restraint in a jury trial.

Section 615. Exclusion of Witnesses

At the request of a party the Court shall order witnesses excluded so that they

cannot hear the testimony of other witnesses, and it may make the order of its own

motion. This request may be made by a party by requesting that the Court "invoke the

tule" or words of similar import. This rule does not authorize exclusion of

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(1) a party who is a natural person, or

(2) an officer or employee of a party, designated as its representative by its

attorney, when the party is not a natural person, or

(3) a person whose presence is shown by a party to be essential to the

presentation of his cause.

CHAPTER SEVEN

OPINIONS AND EXPERT TESTIMONY

Section 701. _Opinion Testimony by Lay Witnesses

- If the witness is not testifying as an expert, his testimony in the form of opinion or

inferences is limited to those opinions or inferences which are:

(a) rationally based on the perception of the witness;

(b) helpful to a clear understanding of his testimony or the determination of a

fact in issue; and

(c) upon a subject which it is presumed that the general public has sufficient

knowledge to reach a reasonable opinion, conclusion, or inference.

Section 702. Testimony by Experts

If scientific, technical, or other specialized knowledge will assist the trier of fact to

understand the evidence or to determine a fact in issue, a witness qualified as an expert by

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

opinion or otherwise.

Section 703. _Bases of Opinion Testimony by Experts

The facts or data in the particular case upon which an expert bases an opinion or

inference may be those perceived by or made known to him at or before the hearing. If of

a type reasonably relied upon by experts in the particular field in forming opinions or

inferences upon the subject, the facts or data need not be admissible in evidence.

Section 704. Opinion on Ultimate Issue

Testimony in the form of an opinion or inference otherwise admissible is not

objectionable because it embraces an ultimate issue to be decided by the trier of fact.

Section 705. Disclosure of Facts or Data Underlying Expert Opinion

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The expert may testimony in terms of terms of opinion or inferences and give his

reasons therefore without prior disclosure of the underlying facts or data, unless the Court

requires otherwise. The expert may in any event be required to disclose the underlying

facts or data on cross-examination.

Section 706. Court Appointed Experts

(a) Appointment. The Court may on its own motion or on the motion of any

party enter an order to show cause why expert witnesses should not be appointed, and

may request the parties to submit nominations. The Court may appoint any expert

witnesses agreed upon by the parties, and may appoint expert witnesses of its own

selection. An expert witness shall not be appointed by the Court unless he consents to act.

A witness so appointed shall be informed of his duties by the Court in writing, a copy of

which shall be filed with the clerk, or at a conference in which the parties shall have

opportunity to participate. A witness so appointed shall advise the parties of his

findings, if any, his deposition may be taken by any part; and he may be called to

testify by the Court or any party. He shall be subject to cross-examination by each

party, calling him as a witness.

(b) Compensation. Expert witness so appointed are entitled to reasonable

compensation in whatever sum the Court may allow. The compensation thus fixed is

payable from the Court fund, said fund to be reimbursed by the parties in such proportion

and at such time as the Court directs, and thereafter charged in like manner as other costs.

(c) Disclosure of Appointment. In the exercise of its discretion, the Court may

authorize disclosure to the jury of the fact that the Court appointed the expert witness,

(d) Parties’ Experts of Own Selection. Nothing in this Section limits the

parties in calling expert witnesses of their own selection.

CHAPTER EIGHT

HEARSAY

Section 801. Definitions

The following definitions apply under this Chapter:

(a) Statement. A "Statement" is:

(1) an oral or written assertion or

(2) Non-verbal conduct of a person, if it is intended by him as an

assertion.

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(b) Declarant. A "declarant" is a person who makes a statement.

(c) Hearsay. "Hearsay" is a statement, other than one made by the declarant

while testifying at the trial or hearing, offered in evidence to prove the truth of the matter

asserted. This Section generally includes affidavits and notarized statements unless made

admissible by some one of these rules.

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

(1) Prior statement by witness. The declarant testifies at the trial or

hearing and is subject to cross-examination concerning the statement, and the statement is:

(i) inconsistent with his testimony, and was given under oath subject to the

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

(ii) consistent with his testimony and is offered to rebut an express or implied

charge against him of recent fabrication or improper influence or motive, or

(iii) one of identification of a person or object made after perceiving him or it, or

(2) Admission by party-opponent. The statement is offered against a

party and is:

(i) his own statement, in either his individual or a representative capacity or

(ii) a statement of which he has manifested his adoption or belief in its truth, or

(iii) a statement by a person authorized by him to make a statement concerning

the subject, or

(iv) a statement by his agent or servant concerning a matter within the scope of

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

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

furtherance of the conspiracy.

Section 802. Hearsay Rule

Hearsay is not admissible except as provided by this Title or by other rules

prescribed by the Tribal Supreme Court pursuant to statutory authority or by Act or

Ordinance of the Tribal Legislative Authority.

Section 803. Hearsay Exceptions: Availability of Declarant Immaterial

The following are not excluded by the hearsay rule, even though the declarant is

available as a witness:

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(a) Present sense impression. A statement describing or explaining an event or

condition made while the declarant was under the stress of excitement caused by the event

or condition.

(b) Excited utterance. A statement relating describing or explaining an event

or condition made while the declarant was perceiving the event or condition, or

immediately thereafter.

(c) Then existing mental, emotional, or physical condition. A

statement of the declarant's then existing state of mind, emotion, sensation, or physical

condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but

not including a statement of memory or belief to prove the fact remembered or believed

unless it relates to the execution, revocation, identification, or terms of declarant's will.

(d) Statement for purposes of medical diagnosis or treatment.

Statements made for purposes of medical diagnosis or treatment and describing

medical history, or past or present symptoms, pain, or sensations, or the inception

or general character of the cause or external source thereof insofar as reasonably

pertinent to diagnosis or treatment.

(e) Recorded recollection. A memorandum or record concerning a matter

about which a witness once had knowledge but now has insufficient recollection to enable

him to testify fully and accurately, shown to have been made or adopted by the witness

when the matter was fresh in his memory and to reflect that knowledge correctly, If

admitted, the memorandum or record may be read into evidence but may not itself be

received as an exhibit unless offered by an adverse party.

(f) Records of regularly conducted activity. A memorandum, report,

record, or data compilation, in any form, concerning acts, events, conditions, opinions, or

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

knowledge, if kept in the course of a regularly conducted business activity, and if it was

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

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

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

lack of trustworthiness. The term “business” as used in this paragraph includes business,

institution, association, profession, occupation, and calling of every kind, whether or not

conducted for profit.

(g) Absence of entry in records kept in accordance with the provisions of

Subsection (f). Evidence that a matter is not included in the memoranda

reports, records, or data compilations in any form, kept in accordance with the provisions

of Subsection (f), to prove the non-occurrence with or nonexistence of the matter, if the

matter was a kind of which a memorandum, report, record, or data compilation was

regularly made and preserved, unless the sources of information or other circumstances

indicate lack of trustworthiness.

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——

(h) Public records and reports. Records, reports, statements, or data

compilations, in any form, of public offices or agencies, setting forth

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

(2) matters observed pursuant to duty imposed by law as to which

matters there was a duty to report, excluding, however, in criminal cases matters observed

by police officers and other law enforcement personnel, or

(3) in civil actions and proceeding and against the Government in

criminal cases, factual findings resulting from an investigation made pursuant to authority

granted by law, unless the sources of information or other circumstances indicate lack of

trustworthiness.

(i) Records of vital statistics. Records or data compilations, in any form, of

birth, fetal deaths, or marriages, if the report thereof was made to a public office pursuant

to requirements of law.

(j) | Absence of public record or entry. To prove the absence of a record,

report, statement, or data compilation, in any form, was regularly made and preserved by a

public office or agency evidence in the form of a certification in accordance with Section

902, or testimony, that diligent search failed to disclose the record, report, statement, or

data compilation, or entry.

(k) Records of religious organizations. Statements of births, marriages,

divorces, deaths, legitimacy, ancestry, relationship by blood, marriage, or other

similar acts of personal or family history, contained in a regularly kept record of a

religious organization.

00) Marriage, baptismal, and similar certificates. Statements of fact

contained in a certificate that the maker performed a marriage or other ceremony

or administered a sacrament, made by a clergyman, public official, or other person

authorized by the rules or practices of a religious organization or by law to

perform the act certified, and purporting to have been issued at the time of the act

or within a reasonable time thereafter.

(m) Family records. Statements of fact concerning personal or family history

contained in family Bibles, genealogies, charts, engravings on rings, inscriptions on family

portraits, engravings on urns, crypts, or tombstones, or the like.

(n) Records of documents affecting an interest in property. The record of

a document purporting to establish or affect an interest in property, as proof of the

content of the original recorded document and its execution and delivery by each person

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by whom it purports to have been executed, if the record is a record of a public office and

an applicable statute authorizes the recording of documents of that kind in that office.

(0) Statements in documents affecting an interest in property. A

statement contained in a purporting to establish or affect an interest in properly if the

matter stated was relevant to the purpose of the document, unless dealings with the

property since the document was made have been inconsistent with the truth of the

statement or the purport of the document.

(p) Statements in ancient documents. Statements in a document in

existence twenty years or more the authenticity of which is established.

(q) Market reports, commercial publications. Market quotations,

tabulations, lists, directories, or other published compilations, generally used and relied

upon by the public or by persons in particular occupations.

(r) Learned treaties. To the extent called to the attention of an expert

witness upon cross-examination , or relied upon by him in direct examination, statements

contained in published treatises, periodicals, or pamphlets on a subject of history,

medicine, or other science or, established as a reliable authority by the testimony or

admission of the witness or by other expert witness or by judicial notice. If admitted, the

statements may be read into evidence but may not be received as exhibits.

(s) Reputation concerning personal or family history. Reputation among

members of his family by blood, adoption, or marriage, or among his associates, or in the

community concerning a person's birth, adoption, or marriage, divorce death, legitimacy,

relationship by blood, adoption, or marriage, ancestry, or other similar facts of his

personal or family history.

(t) Reputation concerning boundaries or general history. Reputation in a

community, arising before the controversy, as to boundaries of or customs affecting lands

in the community, and reputation as to events of general history important to the Tribe or

community or State or nation in which located.

(u) Reputation as to character. Reputation of a person's character among his

associates or in the community.

(v) Judgment of previous conviction. Evidence of a final judgment, entered

after a trial or upon a plea of guilty (but not a plea of nolo contendere), adjudging a

person guilty of a crime or offense, to prove any fact essential to sustain the judgment in

the criminal case as against persons in any civil case, but not against the accused in a

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

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