Statutes of the Pit River Tribe of California

Title 7. Rules of Evidence
Adopted 12-11-03,
affirmed by Resolution
No. 03-12-04

 

Title 7. Rules of Evidence

Adopted December 11, 2003

PART II. PIT RIVER TRIBE RULES OF EVIDENCE

PART II. PIT RIVER RULES OF EVIDENCE

CHAPTER 1. GENERAL

RULE 100 - SHORT TITLE

Rules 100 to 1008 shall be known and may be cited by their respective Rule number, as the Pit River Evidence Code, or PRRE (Example: PRRE Rule 100).

(Originally Adopted 12-3-03; Resolution # 03-12-04; Code 2004)

RULE 101 - APPLICABILITY OF PIT RIVER EVIDENCE CODE

(A) The Pit River Evidence Code applies to the Pit River Indian Tribal Court.

(B) The Pit River Evidence Code applies generally to civil actions, suits and proceedings, and to contempt proceedings except those in which the court may act summarily.

(C) Rules 503 to 518 relating to privileges apply at all stages of all actions, suits and proceedings.

(D) Rules 100 to 412 and Rules 601 to 1008 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 104.

(2) Issuance of warrants of arrest, bench warrants or search warrants.

(3) Shelter care hearings and proceedings to determine proper disposition of a child in accordance with the PRT Family Law Code.

(Originally Adopted 12-3-03; Resolution # 03-12-04; Code 2004)

RULE 102 - PURPOSE AND CONSTRUCTION

(A) The Pit River Evidence Code shall be construed 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.

(B) The purpose of these rules of evidence is to ensure that the tribal court is able to determine the truth of a matter with a minimum of delay, confusion, and uncertainty.

(C) The Rules of Evidence used in state and federal courts shall not apply to hearings in the Pit River Tribal Court. But where there is more than one kind of evidence about the same subject, the judge should hear the most reliable kind of evidence. In oral testimony, persons who testify from their personal knowledge, such as first-hand observation of or participation in the event described shall be preferred as witnesses to persons who have second-hand knowledge of the event.

(Originally Adopted 12-3-03; Resolution # 03-12-04; Code 2004)

RULE 103 - RULINGS ON EVIDENCE

(A) Effect of Erroneous Ruling. Evidential error is not presumed to be prejudicial. Reversible error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and:

(1) 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, if the 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 or was apparent from the context within which questions were asked.

(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 thereon. It may direct the making of an offer in question and answer form.

(C) Plain Error. Nothing in this rule precludes taking notice of plain errors affecting substantial rights although they were not brought to the attention of the court.

(Originally Adopted 12-3-03; Resolution # 03-12-04; Code 2004)

RULE 104 - PRELIMINARY QUESTIONS

(A) Questions 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 subsection (B) of this Rule. In making its determination the Court is not bound by the rules of evidence except those with respect to privileges.

(B) Relevancy Conditioned on Fact. When the relevancy of evidence depends upon the fulfillment of a condition of fact, the Court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.

(C) Testimony by Accused. The accused does not, by testifying upon a preliminary matter, become subject to cross-examination as to other issues in the case.

(Originally Adopted 12-3-03; Resolution # 03-12-04; Code 2004)

RULE 105 - LIMITED ADMISSIBILITY

(A) 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.

(B) Self-Incrimination

(1) The defendant in a criminal prosecution shall not be made to testify against his or her will. However, incriminating statements which the defendant made voluntarily out of court may be presented in court.

(2) If a defendant in a criminal prosecution chooses to testify on matters other than those related to his or her guilt or innocence, cross-examination shall be limited to the areas of defendant's testimony and to matters which indicate defendant's credibility.

(3) Every person who appears as a witness in Pit River Tribal Court has the right to refuse to answer a question if the answer may tend to incriminate the witness.

(Originally Adopted 12-3-03; Resolution # 03-12-04; Code 2004)

RULE 106 - WHEN PART OF TRANSACTION PROVED, WHOLE ADMISSIBLE

When part of an act, declaration, conversation or writing is given in evidence by one party, the whole on the same subject, where otherwise admissible, may at that time be inquired into by the other; when a letter is read, the answer may at that time be given; and when a detached act, declaration, conversation or writing is given in evidence, any other act, declaration, conversation or writing which is necessary to make it understood may at that time also be given in evidence.

(Originally Adopted 12-3-03; Resolution # 03-12-04; Code 204)

CHAPTER 2. JUDICIAL NOTICE

RULE 201 SCOPE

(A) Rule 201 governs judicial notice of adjudicative facts. Rule 202 governs judicial notice of law.

(B) Kinds of facts. A judicially noticed fact must be one not subject to reasonable dispute in that it is either:

(1) Generally known within the territorial jurisdiction of the trial court; or

(2) Capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.

(C) When Mandatory or Discretionary

(1) A court may take judicial notice, whether requested or not.

(2) A court shall take judicial notice if requested by a party and supplied with the necessary information.

(D) Opportunity to be Heard. A party is entitled upon timely request to an opportunity to be heard as to the propriety of taking judicial notice and the tenor of the matter noticed. In the absence of prior notification, the request may be made after judicial notice has been taken.

(E) Time of Taking Notice. Judicial notice may be taken at any stage of the proceeding.

(Originally Adopted 12-3-03; Resolution # 03-12-04; Code 2004)

RULE 202 - KINDS OF LAW

Law judicially noticed is defined as:

(A) The decisional, constitutional and public ordinances and statutory law of the Pit River Tribe, another Federally recognized Indian Tribe, the United States and any state, territory or other jurisdiction of the United States.

(B) Public and private official acts of the legislative, executive and judicial departments of the Pit River Tribe, another Federally recognized Indian Tribe, the United States, and any state, territory or other jurisdiction of the United States.

(C) Rules of professional conduct for members of any tribal, state or Federal Association.

(D) Regulations, ordinances and similar legislative enactments issued by or under the authority of the Pit River Tribe, another Federally recognized Indian tribe, the United States or any state, territory or possession of the United States.

(E) Rules of Court or any court of the Pit River Tribe, another Federally recognized Indian tribe, or any court of record of the United States or of any state, territory or other jurisdiction of the United States.

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

(Originally Adopted 12-3-03; Resolution # 03-12-04; Code 2004)

CHAPTER 3. BURDEN OF PERSUASION
BURDEN OF PRODUCING EVIDENCE; PRESUMPTIONS

RULE 301 - ALLOCATION OF THE BURDEN OF PERSUASION

A party has the burden of persuasion as to each fact the existence or nonexistence of which the law declares essential to the claim for relief or defense the party is asserting.

(Originally Adopted 12-3-03; Resolution # 03-12-04; Code 2004)

RULE 302 - PRESUMPTIONS IN CIVIL PROCEEDINGS

In civil actions and proceedings, a presumption imposes on the party against whom it is directed the burden of proving that the nonexistence of the presumed fact is more probable than its existence.

(Originally Adopted 12-3-03; Resolution # 03-12-04; Code 2004)

RULE 303 - CONFLICTING PRESUMPTIONS

If presumptions are conflicting, the presumption applies that is founded upon weightier considerations of policy and logic. If considerations of policy and logic are of equal weight, neither presumption applies.

(Originally Adopted 12-3-03; Resolution # 03-12-04; Code 2004)

RULE 304 - PRESUMPTIONS

(A) The following are presumptions:

(1) A person intends the ordinary consequences of a voluntary act.

(2) A person takes ordinary care of the person's own concerns.

(3) Evidence willfully suppressed would be adverse to the party suppressing it.

(4) Money paid by one to another was due to the latter.

(5) A thing delivered by one to another belonged to the latter.

(6) An obligation delivered to the debtor has been paid.

(7) A person is the owner of property from exercising acts of ownership over it or from common reputation of the ownership of the person.

(8) A person in possession of an order on that person, for the payment of money or the delivery of a thing, has paid the money or delivered the thing accordingly.

(9) A person acting in a public office was regularly appointed to it.

(10) Official duty has been regularly performed.

(11) A court, or judge acting as such, whether in the Pit River Tribe, or any other federally recognized Indian tribe, or a state or country, was acting in the lawful exercise of the jurisdiction of the court.

(12) Private transactions have been fair and regular.

(13) The ordinary course of business has been followed.

(14) A promissory note or bill of exchange was given or indorsed for a sufficient consideration.

(15) An endorsement of a negotiable promissory note, or bill of exchange, was made at the time and place of making the note or bill.

(16) A writing is truly dated.

(17) A letter duly directed and mailed was received in the regular course of the mail.

(18) A person is the same person if the name is identical.

(19) A person not heard from in seven years is dead.

(20) Persons acting as copartners have entered into a contract of co-partnership.

(21) A man and woman deporting themselves as husband and wife have entered into a lawful contract of marriage.

(22) A thing once proved to exist continues as long as is usual with things of that nature.

(23) The law has been obeyed.

(24) An uninterrupted adverse possession of real property for 20 years or more has been held pursuant to a written conveyance.

(25) A trustee or other person whose duty it was to convey real property to a particular person has actually conveyed it to the person, when such presumption is necessary to perfect the title of the person or the person's successor in interest.

(B) A statute or ordinance providing that a fact or a group of facts is prima facie evidence of another fact establishes a presumption within the meaning of this Rule.

(Originally Adopted 12-3-03; Resolution # 03-12-04; Code 2004)

CHAPTER 4. RELEVANCY

RULE 401 - DEFINITION OF "RELEVANT EVIDENCE"

"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.

(Originally Adopted 12-3-03; Resolution # 03-12-04; Code 2004)

RULE 402 - RELEVANT EVIDENCE GENERALLY ADMISSIBLE

All relevant evidence is admissible, except as otherwise provided by the Pit River Evidence Code, by the Constitutions of the Pit River Tribe and the United States or by the ordinance statute and decisional law of the Pit River Tribe. Evidence which is not relevant is not admissible.

(Originally Adopted 12-3-03; Resolution # 03-12-04; Code 2004)

RULE 403 - EXCLUSION OF RELEVANT EVIDENCE ON GROUNDS OF PREJUDICE, CONFUSION OR UNDUE DELAY

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 finder of fact, or by considerations of undue delay or needless presentation of cumulative evidence.

(Originally Adopted 12-3-03; Resolution # 03-12-04; Code 2004)

RULE 404 - CHARACTER EVIDENCE: ADMISSIBILITY

(A) Admissibility Generally. Evidence of a person's character or trait of character is admissible when it is an essential element of a charge, claim or defense.

(B) Admissibility for Certain Purpose Prohibited; Exceptions. Evidence of a person's character is not admissible for the purpose of proving that the person acted in conformity therewith on a particular occasion, except:

(1) Character of Witness. Evidence of the character of a witness, as provided in Chapter 6; or

(2) Character for Violent Behavior. Evidence of the character of a party for violent behavior offered in a civil assault and battery case when self-defense is pleaded and there is evidence to support such defense.

(C) Other Crimes, Wrongs or Acts. Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show that the person 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.

(Originally Adopted 12-3-03; Resolution # 03-12-04; Code 2004)

RULE 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 of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct.

(B) Specific Instances of Conduct.

(1) In cases in which character or a trait of character of a person is admissible under Rule 404(A), proof may also be made of specific instances of the conduct of the person.

(2) When evidence is admissible under Rule 404(C), proof may be made of specific instances of the conduct of the person.

(Originally Adopted 12-3-03; Resolution # 03-12-04; Code 2004)

RULE 406 - HABIT; ROUTINE PRACTICE

(A) Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.

(B) As used in this Rule, "habit" means a person's regular practice of meeting a particular kind of situation with a specific, distinctive type of conduct.

(Originally Adopted 12-3-03; Resolution # 03-12-04; Code 2004)

RULE 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 to prove negligence or culpable conduct in connection with the event. This Rule 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.

(Originally Adopted 12-3-03; Resolution # 03-12-04; Code 2004)

RULE 408 - COMPROMISE AND OFFERS TO COMPROMISE

(A) Evidence of furnishing or offering or promising to furnish, or 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.

(B) Evidence of conduct or statements made in compromise negotiations is likewise not admissible.

(C) Subsection (A) of this Rule does not require the exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations.

(D) Subsection (A) of this Rule also does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice of a witness, negating a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.

(Originally Adopted 12-3-03; Resolution # 03-12-04; Code 2004)

RULE 409 - PAYMENT OF MEDICAL AND SIMILAR EXPENSES

Evidence of furnishing or offering or promising to pay medical, hospital or similar expenses occasioned by an injury is not admissible to prove liability for the injury. Evidence of payment for damages arising from injury or destruction of property is not admissible to prove liability for the injury or destruction.

(Originally Adopted 12-3-03; Resolution # 03-12-04; Code 2004)

RULE 410 - LIABILITY INSURANCE

(A) Except where lack of liability insurance is an element of an offense, evidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully.

(B) Subsection (A) of this Rule does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proving agency, ownership or control, or bias, prejudice or motive of a witness.

(Originally Adopted 12-3-03; Resolution # 03-12-04; Code 2004)

CHAPTER 5. PRIVILEGES

RULE 501 - LAWYER-CLIENT PRIVILEGE

(A) Definitions. As used in this Rule, unless the context requires otherwise:

(1) "Client" means a person, public officer, 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 the lawyer.

(2) "Confidential communication" means a communication not intended to be disclosed to third persons other than those to whom disclosure is in furtherance of the rendition of professional legal services to the client or those reasonably necessary for the transmission of the communication.

(3) "Lawyer" means a person authorized, or reasonably believed by the client to be authorized, to practice law in any state or nation, or in the Pit River Tribal Court as a lawyer or Advocate.

(4) "Representative of the client" means a principal, an employee, an officer or a director of the client:

a. Who provides the client's lawyer with information that was acquired during the course of, or as a result of, such person's relationship with the client as principal, employee, officer or director, and is provided to the lawyer for the purpose of obtaining for the client the legal advice or other legal services of the lawyer; or

b. Who, as part of such person's relationship with the client as principal, employee, officer or director, seeks, receives or applies legal advice from the client's lawyer.

(5) "Representative of the lawyer" means one employed to assist the lawyer in the rendition of professional legal services, but does not include a physician making a physical or mental examination.

(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 the client or the client's representative and the client's lawyer or a representative of the lawyer;

(2) Between the client's lawyer and the lawyer's representative;

(3) By the client or the client's lawyer to a lawyer representing another in a matter of common interest;

(4) Between representatives of the client or between the client and a representative of the client; or

(5) Between lawyers representing the client.

(C) Who May Claim the Privilege. The privilege created by this Rule may be claimed by the client, a guardian or conservator of the client, 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.

(D) Exceptions. There is no privilege under this Rule:

(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 the client or by the client to the lawyer;

(4) As to a communication relevant to an issue concerning an attested document to which the lawyer is an attesting witness; or

(5) As to a communication relevant to a matter of common interest between 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 any of the clients.

(Originally Adopted 12-3-03; Resolution # 03-12-04; Code 2004)

RULE 502 - PSYCHOTHERAPIST-PATIENT PRIVILEGE

(A) Definitions. As used in this Rule, unless the context requires otherwise:

(1) "Confidential communication" means a communication not intended to be disclosed to third persons except:

a. Persons present to further the interest of the patient in the consultation, examination or interview;

b. Persons reasonably necessary for the transmission of the communication; or

c. Persons who are participating in the diagnosis and treatment under the direction of the psychotherapist, including members of the patient's family.

(2) "Patient" means a person who consults or is examined or interviewed by a psychotherapist.

(3) "Psychotherapist" means a person who is:

a. Licensed, registered, certified or otherwise authorized under the laws of any state or any Federally recognized Indian Tribe to engage in the diagnosis or treatment of a mental or emotional condition; or

b. Reasonably believed by the patient so to be, while so engaged.

(B) General Rule of Privilege. A patient has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purposes of diagnosis or treatment of the patient's mental or emotional condition among the patient, the patient's psychotherapist or persons who are participating in the diagnosis or treatment under the direction of the psychotherapist, including members of the patient's family.

(C) Who May Claim the Privilege. The privilege created by this Rule may be claimed by:

(1) The patient.

(2) A guardian or conservator of the patient.

(3) The personal representative of a deceased patient.

(4) The person who was the psychotherapist, but only on behalf of the patient. The psychotherapist's authority so to do is presumed in the absence of evidence to the contrary.

(D) General Exceptions. The following is a nonexclusive list of limits on the privilege granted by this Rule:

(1) If the judge orders an examination of the mental, physical or emotional condition of the patient, communications made in the course thereof are not privileged under this Rule with respect to the particular purpose for which the examination is ordered unless the judge orders otherwise.

(2) There is no privilege under this rule as to communications relevant to an issue of the mental or emotional condition of the patient:

a. In any proceeding in which the patient relies upon the condition as an element of the patient's claim or defense; or

b. After the patient's death, in any proceeding in which any party relies upon the condition as an element of the party's claim or defense.

(3) Except as provided in the Law and Order Code, there is no privilege under this Rule for communications made in the course of a mental examination for the purposes of determining the persons ability to understand the nature of the case or issue at hand.

(Originally Adopted 12-3-03; Resolution # 03-12-04; Code 2004)

RULE 503 - PHYSICIAN-PATIENT PRIVILEGE

(A) Definitions. As used in this Rule, unless the context requires otherwise:

(1) "Confidential communication" means a communication not intended to be disclosed to third persons except:

a. Persons present to further the interest of the patient in the consultation, examination or interview;

b. Persons reasonably necessary for the transmission of the communication; or

c. Persons who are participating in the diagnosis and treatment under the direction of the physician, including members of the patient's family.

(2) "Patient" means a person who consults or is examined or interviewed by a physician.

(3) "Physician" means a person

a. Authorized and licensed or certified to practice medicine in any state or nation, including licensed or certified naturopathic and chiropractic physician, or

b. Recognized or Certified by the Tribal Council of the Pit River Tribe as a Tribal Medicine Man or Healer, or reasonably believed by the patient so to be, while engaged in the diagnosis or treatment of a physical condition.

(B) General Rule of Privilege. A patient has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications in a civil action, suit or proceeding, made for the purposes of diagnosis or treatment of the patient's physical condition, among the patient, the patient's physician or persons who are participating in the diagnosis or treatment under the direction of the physician, including members of the patient's family.

(C) Who May Claim the Privilege. The privilege created by this Rule may be claimed by:

(1) The patient;

(2) A guardian or conservator of the patient;

(3) The personal representative of a deceased patient; or

(4) The person who was the physician, but only on behalf of the patient. Such person's authority so to do is presumed in the absence of evidence to the contrary.

(D) General Exceptions. The following is a nonexclusive list of limits on the privilege granted by this Rule:

(1) If the judge orders an examination of the physical condition of the patient, communications made in the course thereof are not privileged under this Rule with respect to the particular purpose for which the examination is ordered unless the judge orders otherwise.

(2) Except as provided in this Law and Order Code, there is no privilege under this Rule for communications made in the course of a physical examination for the purposes of determining the persons ability to understand the nature of the case or issue at hand.

(Originally Adopted 12-3-03; Resolution # 03-12-04; Code 2004)

RULE 504 - NURSE-PATIENT PRIVILEGE

A licensed professional nurse shall not, without the consent of a patient who was cared for by such nurse, be examined in a civil action or proceeding, as to any information acquired in caring for the patient, which was necessary to enable the nurse to care for the patient.

(Originally Adopted 12-3-03; Resolution # 03-12-04; Code 2004)

RULE 505 - SCHOOL EMPLOYEE-STUDENT PRIVILEGE

(A) A certificated staff member of an elementary or secondary school shall not be examined in any civil action or proceeding, as to any conversation between the certificated staff member and a student which relates to the personal affairs of the student or family of the student, and which if disclosed would tend to damage or incriminate the student or family.

(B) A certificated school counselor regularly employed and designated in such capacity by a public school shall not, without the consent of the student, be examined as to any communication made by the student to the counselor in the official capacity of the counselor in any civil action or proceeding or a criminal action or proceeding in which such student is a party concerning the past use, abuse or sale of drugs, controlled substances or alcoholic liquor.

(Originally Adopted 12-3-03; Resolution # 03-12-04; Code 2004)

RULE 506 - CLINICAL SOCIAL WORKER-CLIENT PRIVILEGE

A clinical social worker licensed by the Pit River Tribe or by the California State Board of Clinical Social Workers shall not be examined in a court proceeding as to any communication given the clinical social worker by a client in the course of noninvestigatory professional activity when such communication was given to enable the licensed clinical social worker to aid the client, except:

(A) When the client or those persons legally responsible for the client's affairs give consent to the disclosure;

(B) When the client initiates legal action or makes a complaint against the licensed clinical social worker to the board;

(C) When the communication reveals a clear intent to commit a crime which reasonably is expected to result in physical injury to a person;

(D) When the information reveals that a minor was the victim of a crime, abuse or neglect; or

(E) When the licensed clinical social worker is a public or Pit River Tribal employee and the employer has determined that examination in a court proceeding is necessary in the performance of the duty of the social worker as a public or Pit River Tribal employee.

(Originally Adopted 12-3-03; Resolution # 03-12-04; Code 2004)

RULE 507 - HUSBAND-WIFE PRIVILEGE

(A) As used in this Rule, unless the context requires otherwise:

(1) "Confidential communication" means a communication by a spouse to the other spouse and not intended to be disclosed to any other person.

(2) "Marriage" means a marital relationship between husband and wife, legally recognized under the laws of the Pit River Tribe or the State of California.

(B) In any action, a spouse has a privilege to refuse to disclose and to prevent the other spouse from disclosing any confidential communication made by one spouse to the other during the marriage. The privilege created by this subsection may be claimed by either spouse. The authority of the spouse to claim the privilege and the claiming of the privilege is presumed in the absence of evidence to the contrary.

(C) There is no privilege under this Rule:

(1) In all actions in which one spouse is charged with bigamy or with an offense or attempted offense against the person or property of the other spouse or of a child of either, or with an offense against the person or property of a third person committed in the course of committing or attempting to commit an offense against the other spouse;

(2) As to matters occurring prior to the marriage; or

(3) In any civil action where the spouses are adverse parties.

(Originally Adopted 12-3-03; Resolution # 03-12-04; Code 2004)

RULE 508 - CLERGY-PENITENT PRIVILEGE

(A) Definitions. As used in this Rule, unless the context requires otherwise:

(1) "Confidential communication" means a communication made privately and not intended for further disclosure except to other persons present in furtherance of the purpose of the communication.

(2) "Member of the clergy" means a minister of any church or spiritual leader of any church, religious or spiritual denomination or organization, or Healer recognized or certified as such by the Tribal Council of the Pit River Tribe, or accredited Christian Science practitioner who in the course of the discipline or practice of that church, denomination or organization is authorized or accustomed to hearing confidential communications and, under the discipline or tenets of that church, denomination or organization, has a duty to keep such communications secret.

(B) General Rule of Privilege. A member of the clergy shall not, without the consent of the person making the communication, be examined as to any confidential communication made to the member of the clergy in the member's professional character.

(Originally Adopted 12-3-03; Resolution # 03-12-04; Code 2004)

RULE 509 - COUNSELOR-CLIENT PRIVILEGE

A professional counselor or a marriage and family therapist licensed by the Pit River Tribe or by the appropriate California licensing board shall not be examined as to any communication given the counselor or therapist by a client in the course of a noninvestigatory professional activity when such communication was given to enable the counselor or the therapist to aid the client, except:

(A) When the client or those persons legally responsible for the affairs of the client give consent to the disclosure. If both parties to a marriage have obtained marital and family therapy by a licensed marital and family therapist or a licensed counselor, the therapist or counselor shall not be competent to testify in a domestic relations action other than child custody action concerning information acquired in the course of the therapeutic relationship unless both parties consent;

(B) When the client initiates legal action or makes a complaint against the licensed professional counselor or licensed marriage and family therapist to the appropriate licensing board;

(C) When the communication reveals the intent to commit a crime or harmful act; or

(D) When the communication reveals that a minor is or is suspected to be the victim of crime, abuse or neglect.

(Originally Adopted 12-3-03; Resolution # 03-12-04; Code 2004)

RULE 510 - STENOGRAPHER-EMPLOYER PRIVILEGE

A stenographer shall not, without the consent of the stenographer's employer, be examined as to any communication or dictation made by the employer to the stenographer in the course of professional employment.

(Originally Adopted 12-3-03; Resolution # 03-12-04; Code 2004)

RULE 511 - PUBLIC OFFICER PRIVILEGE

A public or Pit River Tribal officer shall not be examined as to public records determined to be exempt from disclosure under the law of the Pit River Tribe.

(Originally Adopted 12-3-03; Resolution # 03-12-04; Code 2004)

RULE 512 - DISABLED PERSON-SIGN LANGUAGE INTERPRETER PRIVILEGE

(A) As used in this Rule:

(1) "Disabled person" means a person who cannot readily understand or communicate the spoken English language, or cannot understand proceedings in which the person is involved, because of deafness or because of a physical hearing impairment or cannot communicate in the proceedings because of a physical speaking impairment.

(2) "Sign language interpreter" or "interpreter" means a person who translates conversations or other communications for a disabled person or translates the statements of a disabled person.

(B) A disabled person has a privilege to refuse to disclose and to prevent a sign language interpreter from disclosing any communications to which the disabled person was a party that were made while the interpreter was providing interpretation services for the disabled person. The privilege created by this Rule extends only to those communications between a disabled person and another, and translated by the interpreter, that would otherwise be privileged under Rules 503 to 518.

(Originally Adopted 12-3-03; Resolution # 03-12-04; Code 2004)

RULE 513 - NON-ENGLISH SPEAKING PERSON-INTERPRETER PRIVILEGE

(A) As used in this Rule:

(1) "Interpreter" means a person who translates conversations or other communications for a non-English speaking person or translates the statements of a non-English speaking person.

(2) "Non-English speaking person" means a person who, by reason of place of birth or culture, speaks a language other than English and does not speak English with adequate ability to communicate in the proceedings.

(B) A non-English speaking person has a privilege to refuse to disclose and to prevent an interpreter from disclosing any communications to which the non-English speaking person was a party that were made while the interpreter was providing interpretation services for the non-English speaking person. The privilege created by this Rule extends only to those communications between a non-English speaking person and another, and translated by the interpreter, that would otherwise be privileged under Rules 503 to 518.

(Originally Adopted 12-3-03; Resolution # 03-12-04; Code 2004)

RULE 514 - IDENTITY OF INFORMER

(A) As used in this Rule, "unit of government" means the government of the Pit River Tribe, another Federally recognized Indian Tribe, Federal Government or any state or political subdivision thereof.

(B) A unit of government 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 law to a law enforcement officer or member of a legislative committee or its staff conducting an investigation.

(C) The privilege created by this Rule may be claimed by an appropriate representative of the unit of government if the information was furnished to an officer thereof.

(D) No privilege exists under this Rule:

(1) If the identity of the informer or the informer's interest in the subject matter of the 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 unit of government.

(2) If it appears from the evidence in the case or from other showing by a party that an informer may be able to give testimony necessary to a fair determination of a material issue on the merits in a civil case to which the unit of government is a party, and the unit of government invokes the privilege, and the judge gives the unit of government 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 judge may direct that testimony be taken if the judge finds that the matter cannot be resolved satisfactorily upon affidavit. If the judge finds that there is a reasonable probability that the informer can give the testimony, and the unit of government elects not to disclose the identity of the informer, the judge in civil cases, may make any order that justice requires. Evidence submitted to the judge 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 unit of government. All counsel and parties shall be permitted to be present at every stage of proceedings under this paragraph except a showing in camera, at which no counsel or party shall be permitted to be present.

(3) If information from an informer is relied upon to establish the legality of the means by which evidence was obtained and the judge is not satisfied that the information was received from an informer reasonably believed to be reliable or credible. The judge may require the identity of the informer to be disclosed. The judge shall, on request of the unit of government, direct that the disclosure be made in camera. All counsel and parties concerned with the issue of legality shall be permitted to be present at every stage of proceedings under this paragraph except a disclosure in camera, at which no counsel or party shall be permitted to be present. If disclosure of the identity of the informer is made in camera, the record thereof 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 unit of government.

(Originally Adopted 12-3-03; Resolution # 03-12-04; Code 2004)

RULE 515 - WAIVER OF PRIVILEGE BY VOLUNTARY DISCLOSURE

A person upon whom Rules 503 to 518 confer a privilege against disclosure of the confidential matter or communication waives the privilege if the person or the person's predecessor while holder of the privilege voluntarily discloses or consents to disclosure of any significant part of the matter or communication. This Rule does not apply if the disclosure is itself a privileged communication. Voluntary disclosure does not occur with the mere commencement of litigation or, in the case of a deposition taken for the purpose of perpetuating testimony, until the offering of the deposition as evidence. Voluntary disclosure does occur, as to psychotherapists in the case of a mental or emotional condition and physicians in the case of a physical condition upon the holder's offering of any person as a witness who testifies as to the condition.

(Originally Adopted 12-3-03; Resolution # 03-12-04; Code 2004)

RULE 516 - PRIVILEGED MATTER DISCLOSED UNDER COMPULSION OR WITHOUT OPPORTUNITY TO CLAIM PRIVILEGE

Evidence of a statement or other disclosure of privileged matter is not admissible against the holder of the privilege if the disclosure was:

(A) Compelled erroneously; or

(B) Made without opportunity to claim the privilege.

(Originally Adopted 12-3-03; Resolution # 03-12-04; Code 2004)

RULE 517 - COMMENT UPON OR INFERENCE FROM CLAIM OF PRIVILEGE

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 from a claim of privilege.

(Originally Adopted 12-3-03; Resolution # 03-12-04; Code 2004)

RULE 518 - EFFECT ON EXISTING PRIVILEGES

Unless expressly provided in these Rules, all existing privileges created under the Constitution or ordinances of the Pit River Tribe are recognized and shall continue to exist until changed or repealed according to law.

(Originally Adopted 12-3-03; Resolution # 03-12-04; Code 2004)

CHAPTER 6. WITNESSES

RULE 601 - GENERAL RULE OF COMPETENCY

Except as provided in Rules 601 to 606, any person who, having organs of sense, can perceive, and perceiving can make known the perception to others, may be a witness.

(Originally Adopted 12-3-03; Resolution # 03-12-04; Code 2004)

RULE 602 - LACK OF PERSONAL KNOWLEDGE

Subject to the provisions of Chapter 7, a witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the testimony of the witness.

(Originally Adopted 12-3-03; Resolution # 03-12-04; Code 2004)

RULE 603 - OATH OR AFFIRMATION

(A) Before testifying, every witness shall be required to declare that the witness will testify truthfully, by oath or affirmation administered in a form calculated to awaken the conscience of the witness and impress the mind of the witness with the duty to do so.

(B) An oath may be administered as follows: The person who swears holds up one hand while the person administering the oath asks: "Under penalty of perjury, do you solemnly swear that the evidence you shall give in the issue (or matter) now pending between _______ and _______ shall be the truth, the whole truth and nothing but the truth, so help you God?" If the oath is administered to any other than a witness, the same form and manner may be used. The person swearing must answer in an affirmative manner.

(Originally Adopted 12-3-03; Resolution # 03-12-04; Code 2004)

RULE 604 - INTERPRETERS

An interpreter is subject to the provisions of the Pit River Evidence Code relating to qualification as an expert and the administration of an oath or affirmation that the interpreter will make a true translation.

(Originally Adopted 12-3-03; Resolution # 03-12-04; Code 2004)

RULE 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.

(Originally Adopted 12-3-03; Resolution # 03-12-04; Code 2004)

RULE 606 - WHO MAY IMPEACH

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

(Originally Adopted 12-3-03; Resolution # 03-12-04; Code 2004)

RULE 607 - EVIDENCE OF CHARACTER AND CONDUCT OF WITNESS

(A) The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but:

(1) The evidence may refer only to character for truthfulness or untruthfulness; and

(2) Evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.

(B) Specific instances of the conduct of a witness, for the purpose of attacking or supporting the credibility of the witness, other than conviction of crime as provided in Rule 608, may not be proved by extrinsic evidence. Further, such specific instances of conduct may not, even if probative of truthfulness or untruthfulness, be inquired into on cross- examination of the witness.

(Originally Adopted 12-3-03; Resolution # 03-12-04; Code 2004)

RULE 608 - IMPEACHMENT BY EVIDENCE OF CONVICTION OF CRIME

(A) For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted if elicited from the witness or established by public record, but only if the crime:

(1) Was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, or

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

(B) Evidence of a conviction under this Rule is not admissible if:

(1) A period of more than ten (10) years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date; or

(2) The conviction has been expunged by pardon, reversed, set aside or otherwise rendered nugatory.

(C) When the credibility of a witness is attacked by evidence that the witness has been convicted of a crime, the witness shall be allowed to explain briefly the circumstances of the crime or former conviction; once the witness explains the circumstances, the opposing side shall have the opportunity to rebut the explanation.

(D) The pendency of an appeal therefrom does not render evidence of a conviction inadmissible. Evidence of the pendency of an appeal is admissible.

(E) An adjudication by a juvenile court that a child is within its jurisdiction is not a conviction of a crime.

(F) A conviction of any offense designated as a violation by the law of the jurisdiction, in which the conviction occurred, may not be used to impeach the character of a witness in any civil action or proceeding.

(Originally Adopted 12-3-03; Resolution # 03-12-04; Code 2004)

RULE 609 - IMPEACHMENT FOR BIAS OR INTEREST

(A) The credibility of a witness may be attacked by evidence that the witness engaged in conduct or made statements showing bias or interest. However, before this can be done, the statements must be related to the witness and the conduct described, with the circumstances of times, places and persons present, and the witness shall be asked whether the witness made the statements or engaged in such conduct, and, if so, allowed to explain. If the statements are in writing, they shall be shown to the witness.

(B) If a witness fully admits the facts claimed to show the bias or interest of the witness, additional evidence of that bias or interest shall not be admitted. If the witness denies or does not fully admit the facts claimed to show bias or interest, the party attacking the credibility of the witness may then offer evidence to prove those facts.

(C) Evidence to support or rehabilitate a witness whose credibility has been attacked by evidence of bias or interest shall be limited to evidence showing a lack of bias or interest.

(Originally Adopted 12-3-03; Resolution # 03-12-04; Code 2004)

RULE 610 - RELIGIOUS BELIEFS OR OPINIONS

Evidence of the beliefs or opinions of a witness on matters of spirituality and religion is not admissible for the purpose of showing that by reason of their nature the credibility of the witness is impaired or enhanced.

(Originally Adopted 12-3-03; Resolution # 03-12-04; Code 2004)

RULE 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 witnesses and presenting evidence so as to make the interrogation and presentation effective for the ascertainment of the truth, avoid needless consumption of time and protect witnesses from 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. Leading questions should not be used on the direct examination of a witness except as may be necessary to develop the witness' testimony. Ordinarily leading questions should be permitted on cross- examination. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions.

(Originally Adopted 12-3-03; Resolution # 03-12-04; Code 2004)

RULE 612 - WRITING USED TO REFRESH MEMORY

(A) If a witness uses a writing to refresh their memory for the purpose of testifying (either while testifying or before testifying), an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness thereon, and to introduce into 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, excise 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 appellate court in the event of an appeal.

(C) If a writing is not produced or delivered pursuant to court order under this Rule, the court shall make any order justice requires, except that in criminal cases when the prosecution elects not to comply the order shall be one striking the testimony or, if the court in its discretion determines that the interests of justice so require, declaring a mistrial.

(Originally Adopted 12-3-03; Resolution # 03-12-04; Code 2004)

RULE 613 - PRIOR STATEMENTS OF WITNESSES

(A) In examining a witness concerning a prior statement made by the witness, whether written or not, the statement need not be shown nor its contents disclosed to the witness at that time, but on request the same shall be shown or disclosed to opposing counsel.

(B) Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate the witness thereon, or the interests of justice otherwise require. This provision does not apply to admissions of a party-opponent as defined in Rule 801.

(Originally Adopted 12-3-03; Resolution # 03-12-04; Code 2004)

RULE 614 - EXCLUSION OF WITNESSES

At the request of a party the court may order witnesses excluded until the time of final argument, and it may make the order of its own motion. This rule does not authorize exclusion of (1) a party who is a natural person, or (2) an officer or employee of a party which is not a natural person designated as its representative by its attorney, or (3) a person whose presence is shown by a party to be essential to the presentation of the party's cause.

(Originally Adopted 12-3-03; Resolution # 03-12-04; Code 2004)

CHAPTER 7. OPINIONS AND EXPERT TESTIMONY

RULE 701 - OPINION TESTIMONY BY LAY WITNESSES

If the witness is not testifying as an expert, testimony of the witness in the form of opinions or inferences is limited to those opinions or inferences which are:

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

(B) Helpful to a clear understanding of testimony of the witness or the determination of a fact in issue.

(Originally Adopted 12-3-03; Resolution # 03-12-04; Code 2004)

RULE 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.

(Originally Adopted 12-3-03; Resolution # 03-12-04; Code 2004)

RULE 703 - BASIS 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 the expert 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.

(Originally Adopted 12-3-03; Resolution # 03-12-04; Code 2004)

RULE 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.

(Originally Adopted 12-3-03; Resolution # 03-12-04; Code 2004)

RULE 705 - DISCLOSURE OF FACT OR DATA UNDERLYING EXPERT OPINION

An expert may testify in terms of opinion or inference and give 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.

(Originally Adopted 12-3-03; Resolution # 03-12-04; Code 2004)

CHAPTER 8. HEARSAY

RULE 801 - DEFINITIONS

As used in Rules 801 to 806, unless the context requires otherwise:

(A) Statement. A "statement" is:

(1) An oral or written assertion; or

(2) Nonverbal conduct of a person, if intended as an assertion.

(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.

(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:

a. Inconsistent with the testimony of the witness and was given under oath subject to the penalty of perjury at a trial, hearing or other proceeding, or in a deposition;

b. Consistent with the testimony of the witness and is offered to rebut an inconsistent statement or an express or implied charge against the witness of recent fabrication or improper influence or motive; or

c. One of identification of a person made after perceiving the person.

(2) Admission by Party-Opponent. The statement is offered against a party and is:

a. That party's own statement, in either an individual or a representative capacity;

b. A statement of which the party has manifested the party's adoption or belief in its truth;

c. A statement by a person authorized by the party to make a statement concerning the subject;

d. A statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship; or

e. A statement by a coconspirator of a party during the course and in furtherance of the conspiracy.

(3) Statement in Deposition. The statement is made in a deposition taken in the same proceeding or in a proceeding where the other party has had an opportunity to cross-examine the person making the statement.

(Originally Adopted 12-3-03; Resolution # 03-12-04; Code 2004)

RULE 802 - HEARSAY RULE

Hearsay is not admissible except as provided in Rules 801 to 830 or as otherwise provided by law.

(Originally Adopted 12-3-03; Resolution # 03-12-04; Code 2004)

RULE 803 - HEARSAY EXCEPTION; AVAILABILITY OF DECLARANT IMMATERIAL

The following Rules 804 through 830 are not excluded by Rule 802, even though the declarant is available as a witness.

(Originally Adopted 12-3-03; Resolution # 03-12-04; Code 2004)

RULE 804 - EXCITED UTTERANCE

A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.

(Originally Adopted 12-3-03; Resolution # 03-12-04; Code 2004)

RULE 805 - THEN EXISTING MENTAL, EMOTIONAL OR PHYSICAL CONDITION

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 or 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 the declarant's will.

(Originally Adopted 12-3-03; Resolution # 03-12-04; Code 2004)

RULE 806 - STATEMENTS 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 of external source thereof in so far as reasonably pertinent to diagnosis or treatment.

(Originally Adopted 12-3-03; Resolution # 03-12-04; Code 2004)

RULE 807 - RECORDED RECOLLECTION

A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the memory of the witness 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.

(Originally Adopted 12-3-03; Resolution # 03-12-04; Code 2004)

RULE 808 - RECORDS OF REGULARLY CONDUCTED ACTIVITY

A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method of circumstances of preparation indicate lack of trustworthiness. The term "business" as used in this subsection includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.

(Originally Adopted 12-3-03; Resolution # 03-12-04; Code 2004)

RULE 809 - ABSENCE OF ENTRY IN RECORDS KEPT IN ACCORDANCE WITH THE PROVISIONS OF RULE 808

Evidence that a matter is not included in the memoranda, reports, records, or data compilations, and in any form, kept in accordance with the provisions of this Chapter 8, to prove the nonoccurrence or nonexistence of the matter, if the matter was of 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.

(Originally Adopted 12-3-03; Resolution # 03-12-04; Code 2004)

RULE 810 - PUBLIC RECORDS AND REPORTS

Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth:

(A) The activities of the office or agency;

(B) Matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding however, in criminal cases matters observed by police officers and other law enforcement personnel; or

(C) In civil actions and proceedings 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.

(Originally Adopted 12-3-03; Resolution # 03-12-04; Code 2004)

RULE 811 - RECORDS OF VITAL STATISTICS

Records or data compilations, in any form, of births, fetal deaths, deaths or marriages, if the report thereof was made to a public office pursuant to requirements of law.

(Originally Adopted 12-3-03; Resolution # 03-12-04; Code 2004)

RULE 812 - ABSENCE OF PUBLIC RECORD OR ENTRY

To prove the absence of a record, report, statement, or data compilation, in any form, or the nonoccurrence or nonexistence of a matter of which a record, report, statement, or data compilation, in any form, was regularly made and preserved by a public office or agency, evidence in the form of a certification in accordance with Rule 902, or testimony, that diligent search failed to disclose the record, report, statement, or data compilation, or entry.

(Originally Adopted 12-3-03; Resolution # 03-12-04; Code 2004)

RULE 813 - RECORDS OF RELIGIOUS ORGANIZATIONS

Statements of births, marriages, divorces, deaths, legitimacy, ancestry, relationship by blood or marriage, or other similar facts of personal or family history, contained in a regularly kept record of a religious organization.

(Originally Adopted 12-3-03; Resolution # 03-12-04; Code 2004)

RULE 814 - MARRIAGE, BAPTISMAL AND SIMILAR CERTIFICATES

A statement 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.

(Originally Adopted 12-3-03; Resolution # 03-12-04; Code 2004)

RULE 815 - FAMILY RECORDS

Statements of facts 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.

(Originally Adopted 12-3-03; Resolution # 03-12-04; Code 2004)

RULE 816 - 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 content of the original recorded document and its execution and delivery by each person by whom it purports to have been executed, if the record is a record of a public office and an applicable statute authorizes the recording of documents of that kind in that office.

(Originally Adopted 12-3-03; Resolution # 03-12-04; Code 2004)

RULE 817 - STATEMENTS IN DOCUMENTS AFFECTING AN INTEREST IN PROPERTY

A statement contained in a document purporting to establish or affect an interest in property if the matter stated was relevant to the purpose of the document, unless dealings with the property since the document was made have been inconsistent with the truth of the statement or the purport of the document.

(Originally Adopted 12-3-03; Resolution # 03-12-04; Code 2004)

RULE 818 - STATEMENTS IN ANCIENT DOCUMENTS

Statements in a document in existence 20 years or more the authenticity of which is established.

(Originally Adopted 12-3-03; Resolution # 03-12-04; Code 2004)

RULE 819 - MARKET REPORTS AND 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.

(Originally Adopted 12-3-03; Resolution # 03-12-04; Code 2004)

RULE 820 - TRIBAL ORAL HISTORY

Statements of facts derived from the oral traditional histories of the Pit River Tribe, generally used and relied upon by the adult members of the Pit River Tribe, or if made by a person certified by the Tribal Council of the Pit River Tribe as a Tribal Cultural Expert or Tribal Oral Historian.

(Originally Adopted 12-3-03; Resolution # 03-12-04; Code 2004)

RULE 821 - REPUTATION CONCERNING PERSONAL OR FAMILY HISTORY

Reputation among members of a person's family by blood, adoption or marriage, or among a person's associates, or in the community, concerning a person's birth, adoption, marriage, divorce, death, legitimacy, relationship by blood or adoption or marriage, ancestry, or other similar fact of a person's personal or family history.

(Originally Adopted 12-3-03; Resolution # 03-12-04; Code 2004)

RULE 822 - 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 community, band, or state or nation in which located. As used herein, "community" includes, without limitation, any Indian Tribe.

(Originally Adopted 12-3-03; Resolution # 03-12-04; Code 2004)

RULE 823 - REPUTATION AS TO CHARACTER

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

(Originally Adopted 12-3-03; Resolution # 03-12-04; Code 2004)

RULE 824 - JUDGMENT OF PREVIOUS CONVICTION

Evidence of a final judgment, entered after a trial or upon a plea of guilty, but not upon a plea of no contest, adjudging a person guilty of a crime other than a traffic offense, to prove any fact essential to sustain the judgment, but not including, when offered by the government in a criminal prosecution for purposes other than impeachment, judgments against persons other than the accused. The pendency of an appeal may be shown but does not affect admissibility.

(Originally Adopted 12-3-03; Resolution # 03-12-04; Code 2004)

RULE 825 - JUDGMENT AS TO PERSONAL, FAMILY OR GENERAL HISTORY OR BOUNDARIES

Judgments as proof of matters of personal, family or general history, or boundaries, essential to the judgment, if the same would be provable by evidence of reputation.

(Originally Adopted 12-3-03; Resolution # 03-12-04; Code 2004)

RULE 826 - LAW ENFORCEMENT DOCUMENTS

Any document containing data prepared or recorded by law enforcement, including Pit River, Federal, and the California State Police, if the document is produced by data retrieval from the Law Enforcement Data System or other substantially equivalent computer system maintained and operated by the police, and the person retrieving the data attests that the information was retrieved directly from the system and that the document accurately reflects the data retrieved.

(Originally Adopted 12-3-03; Resolution # 03-12-04; Code 2004)

RULE 827 - OTHER EXCEPTIONS

(A) A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that:

(1) The statement is relevant;

(2) The statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and

(3) The general purposes of the Pit River Evidence Code and the interests of justice will best be served by admission of the statement into evidence.

(B) A statement may not be admitted under this subsection unless the proponent of it makes known to the adverse party the intention to offer the statement and the particulars of it, including the name and address of the declarant, sufficiently in advance of the trial or hearing, or as soon as practicable after it becomes apparent that such statement is probative of the issues at hand, to provide the adverse party with a fair opportunity to prepare to meet it.

(Originally Adopted 12-3-03; Resolution # 03-12-04; Code 2004)

RULE 828 - HEARSAY EXCEPTIONS WHERE THE DECLARANT IS UNAVAILABLE

(A) Definition of Unavailability. "Unavailability as a witness" includes situations in which the declarant:

(1) Is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of a statement;

(2) Persists in refusing to testify concerning the subject matter of a statement despite an order of the court to do so;

(3) Testifies to a lack of memory of the subject matter of a statement;

(4) Is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity; or

(5) Is absent from the hearing and the proponent of the declarant's statement has been unable to procure the declarant's attendance (or in the case of an exception under subsection (C)(2), (3) or (4) of this Rule, the declarant's attendance or testimony) by process or other reasonable means.

(B) Exemption, etc., Due to Wrongdoing. A declarant is not unavailable as a witness if the declarant's exemption, refusal, claim of lack of memory, inability, or absence is due to the procurement or wrongdoing of the proponent of the declarant's statement for the purpose of preventing the witness from attending or testifying.

(C) Hearsay Exceptions. The following are not excluded by Rule 802 if the declarant is unavailable as a witness:

(1) Former Testimony. Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.

(2) Statement Under Belief of Impending Death. A statement made by a declarant while believing that death was imminent, concerning the cause or circumstances of what the declarant believed to be impending death.

(3) Statement Against Interest. A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant's position would not have made the statement unless the person believed it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.

(4) Statement of Personal or Family History.

a. A statement concerning the declarant's own birth, adoption, marriage, divorce, legitimacy, relationship by blood or adoption or marriage, ancestry, or other similar fact of personal or family history, even though the declarant had no means of acquiring personal knowledge of the matter stated; or

b. A statement concerning the foregoing matters, and death also, of another person, if the declarant was related to the other by blood, adoption, or marriage or was so intimately associated with the other's family as to be likely to have accurate information concerning the matter declared.

(5) Statement Made in Professional Capacity. A statement made at or near the time of the transaction by a person in a position to know the facts stated therein, acting in the person's professional capacity and in the ordinary course of professional conduct.

(6) Other Exceptions. A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that

a. The statement is offered as evidence of a material fact;

b. The statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of the Pit River Evidence Code and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this paragraph unless the proponent of it makes known to the adverse party the intention to offer the statement and the particulars of it, including the name and address of the declarant, sufficiently in advance of the trial or hearing, or as soon as practicable after it becomes apparent that the statement is probative of the issues at hand, to provide the adverse party with a fair opportunity to prepare to meet it.

(Originally Adopted 12-3-03; Resolution # 03-12-04; Code 2004)

RULE 829 - HEARSAY WITHIN HEARSAY

Hearsay included within hearsay is not excluded under Rule 802 if each part of the combined statements conforms with an exception set forth in Rule 803 through Rule 828.

(Originally Adopted 12-3-03; Resolution # 03-12-04; Code 2004)

RULE 830 - ATTACKING AND SUPPORTING CREDIBILITY OF DECLARANT

When a hearsay statement, or a statement defined in Rule 801(D)(2)(c), (d), or (e), has been admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be supported, by any evidence which would be admissible for those purposes if the declarant had testified as a witness. Evidence of a statement or conduct by the declarant at any time, inconsistent with the hearsay statement of the declarant, is not subject to any requirement under Rule 613 relating to impeachment by evidence of inconsistent statements. If the party against whom a hearsay statement has been admitted calls the declarant as a witness, the party is entitled to examine the declarant on the statement as if under cross-examination.

(Originally Adopted 12-3-03; Resolution # 03-12-04; Code 2004)

CHAPTER 9. AUTHENTICATION AND IDENTIFICATION

RULE 901 - REQUIREMENT OF AUTHENTICATION OR IDENTIFICATION

(A) General Provision. The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.

(B) Illustrations. By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of subsection (A) of this Rule:

(1) Testimony of Witness With Knowledge. Testimony by a witness with knowledge that a matter is what it is claimed to be.

(2) Nonexpert Opinion on Handwriting. Non-expert opinion as to the genuineness of handwriting, based upon familiarity not acquired for purposes of the litigation.

(3) Comparison by Trier or Expert Witness. Comparison by the trier of fact or by expert witnesses with specimens which have been authenticated.

(4) Distinctive Characteristics and the Like. Appearance, contents, substance, internal patterns or other distinctive characteristics, taken in conjunction with circumstances.

(5) Voice Identification. Identification of a voice, whether heard firsthand or through mechanical or electronic transmission or recording, by opinion based upon hearing the voice at any time under circumstances connecting it with the alleged speaker.

(6) Telephone Conversation. Telephone conversations, by evidence that a call was made to the number assigned at the time by the telephone company to a particular person or business, if:

a. In the case of a person, circumstances, including self-identification, show the person answering to be the one called; or

b. In the case of a business, the call was made to a place of business and the conversation related to business reasonably transacted over the telephone.

(7) Public Records or Reports. Evidence that a writing authorized by law to be recorded or filed and in fact recorded or filed in a public office, or a purported public record, report, statement, or data compilation, in any form, is from the public office where items of this nature are kept.

(8) Ancient Oral Histories, Documents or Data Compilation. Evidence that an oral history, document or data compilation, in any form:

a. Is in such condition as to create no suspicion concerning its authenticity;

b. Was related or found in a place where it, if authentic, would likely be; and

c. Has been in existence 20 years or more at the time it is offered.

(9) Process or System. Evidence describing a process or system used to produce a result and showing that the process or system produces an accurate result.

(10) Methods Provided by Statute or Rule. Any method of authentication or identification otherwise provided by law or by other rules prescribed by the Supreme Court

(Originally Adopted 12-3-03; Resolution # 03-12-04; Code 2004)

RULE 902 - SELF-AUTHENTICATION

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

(A) Domestic Public Documents Under Seal. A document bearing a seal purporting to be that of the United States, or of any state, district, commonwealth, territory, or insular possession thereof, or the Panama Canal Zone, or the Trust Territory of the Pacific Islands, or of a political subdivision, department, officer, or agency thereof, and a signature purporting to be an attestation or execution.

(B) Domestic Public Documents Not Under Seal. A document purporting to bear the signature, in an official capacity, of an officer or employee of any entity included in subsection (A) of this Rule, having no seal, if a public officer having a seal and having official duties in the district or political subdivision of the officer or employee certifies under seal that the signer has the official capacity and that the signature is genuine.

(C) Foreign Public Documents. A document purporting to be executed or attested in an official capacity by a person authorized by the laws of a foreign country to make the execution or attestation, and accompanied by a final certification as to the genuineness of the signature and official position of (1) the executing or attesting person, or (2) any foreign official whose certificate of genuineness of signature and official position relates to the execution or attestation or is in a chain of certificates of genuineness of signature and official position relating to the execution or attestation. A final certification may be made by a secretary of embassy or legation, consul general, consul, vice consul, or consular agent of the United States, or a diplomatic or consular official of the foreign country assigned or accredited to the United States. If reasonable opportunity has been given to all parties to investigate the authenticity and accuracy of official documents, the court may, for good cause shown, order that they be treated as presumptively authentic without final certification or permit them to be evidenced by an attested summary with or without final certification.

(D) Certified Copies of Public Records. A copy of an official record or report or entry therein, or of a document authorized by law to be recorded or filed and actually recorded or filed in a public office, including data compilations in any form, certified as correct by the custodian or other person authorized to make the certification, by certificate complying with subsection (A), (B) or (C) of this Rule or otherwise complying with any law or rule prescribed by the Pit River Tribal Court.

(E) Official Publications. Books, pamphlets or other publications purporting to be issued by public authority.

(F) Newspapers and Periodicals. Printed materials purporting to be newspapers or periodicals.

(G) Trade Inscriptions and the Like. Inscriptions, signs, tags or labels purporting to have been affixed in the course of business and indicating ownership, control or origin.

(H) Acknowledged Documents. Documents accompanied by a certificate of acknowledgment executed in the manner provided by law by a notary public or other officer authorized by law to take acknowledgments.

(I) Commercial Paper and Related Documents. Commercial paper, signatures thereon and documents relating thereto to the extent provided by applicable law.

(J) Presumptions Under Law. Any signature, documents or other matter declared by law to be presumptively or prima facie genuine or authentic.

(K) Document Bearing Seal of Tribal Government.

(1) A document bearing a seal purporting to be that of the Pit River Tribe or another federally recognized Indian tribal government or of a political subdivision, department, officer, or agency thereof, and a signature purporting to be an attestation or execution.

(2) A document purporting to bear the signature, in an official capacity, of an officer or employee of any entity included in paragraph (1) of this subsection, having no seal, if a public officer having a seal and having official duties in the district or political subdivision or the officer or employee certifies under seal that the signer has the official capacity and that the signature is genuine.

(L) Document Containing Data Prepared or Recorded by Law Enforcement. Any document containing data prepared or recorded by the police, including the California State Police, and/or the Pit River or Federal law enforcement officer acting pursuant to analogous provisions of Tribal or Federal law, if the document is produced by data retrieval from the Law Enforcement Data System or other substantially equivalent computer system maintained and operated by the police, and the person retrieving the data attests that the information was retrieved directly from the system and that the document accurately reflects the data retrieved.

(Originally Adopted 12-3-03; Resolution # 03-12-04; Code 2004)

RULE 903 - SUBSCRIBING WITNESS' TESTIMONY UNNECESSARY

The testimony of a subscribing witness is not necessary to authenticate a writing unless required by the laws of the jurisdiction whose laws govern the validity of the writing.

(Originally Adopted 12-03-03; Resolution # 03-12-04; Code 2004)

CHAPTER 10. CONTENTS OF WRITINGS, RECORDINGS AND PHOTOGRAPHS

RULE 1001 - DEFINITIONS

As used in Rules 1001 to 1008, unless the context requires otherwise:

(A) Duplicate. "Duplicate" means a counterpart produced by the same impression as the original, or from the same matrix, or by means of photography, including enlargements and miniatures, by mechanical or electronic re-recording, by chemical reproduction, by optical imaging or by other equivalent techniques that accurately reproduce the original, including reproduction by facsimile machines if the reproduction is identified as a facsimile and printed on non-thermal paper.

(B) Original. "Original" of a writing or recording is the writing or recording itself or any counterpart intended to have the same effect by a person executing or issuing it. An "original" of a photograph includes the negative or any print there from. If data are stored in a computer or similar device, any printout or other output readable by sight, shown to reflect the data accurately, is an "original."

(C) Photographs. "Photographs" includes still photographs, X-ray films, video tapes and motion pictures.

(D) Writings and Recordings. "Writings" and "recordings" mean letters, words or numbers, or their equivalent, set down by handwriting, typewriting, printing, photostating, photographing, magnetic impulse, optical imaging, mechanical or electronic recording or other form of data compilation.

(Originally Adopted 12-3-03; Resolution # 03-12-04; Code 2004)

RULE 1002 - REQUIREMENT OF ORIGINAL

To prove the content of a writing, recording or photograph, the original writing, recording or photograph is required, except as otherwise provided in Rules 1001 to 1008 or other law.

(Originally Adopted 12-3-03; Resolution # 03-12-04; Code 2004)

RULE 1003 - ADMISSIBILITY OF DUPLICATES

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

(A) A genuine question is raised as to the authenticity of the original; or

(B) In the circumstances it would be unfair to admit the duplicate in lieu of the original.

(Originally Adopted 12-3-03; Resolution # 03-12-04; Code 2004)

RULE 1004 - ADMISSIBILITY OF REPRODUCED RECORDS, ENLARGEMENTS AND FACSIMILES

(A) If any business, institution or member of a profession or calling, in the regular course of business or activity, has kept or recorded any memorandum, writing, entry, print, representation or a combination thereof, of any act, transaction, occurrence or event, and in the regular course of business has caused any or all of the same to be recorded, copied or reproduced by any photographic, photostatic, microfilm, micro-card, miniature photographic, optical imaging or other process that accurately reproduces or forms a durable medium for so reproducing the original, the original may be destroyed in the regular course of business unless held in a custodial or fiduciary capacity and the principal or true owner has not authorized destruction or unless its preservation is required by law. Such reproduction, when satisfactorily identified, is as admissible in evidence as the original itself in any judicial or administrative proceeding whether the original is in existence or not and an enlargement or facsimile of such reproduction is likewise admissible in evidence if the original reproduction is in existence and available for inspection under direction of the court. The introduction of a reproduced record, enlargement or facsimile does not preclude admission of the original.

(B) If any department or agency of government, in the regular course of business or activity, has kept or recorded any memorandum, writing, entry, print, representation or combination thereof, of any act, transaction, occurrence or event, and in the regular course of business, and in accordance with law, has caused any or all of the same to be recorded, copied or reproduced by any photographic, photostatic, microfilm, micro-card, miniature photographic, optical imaging or other process that accurately reproduces or forms a durable medium for so reproducing the original, the original may be destroyed in the regular course of business unless held in a custodial or fiduciary capacity and the principal or true owner has not authorized destruction or unless its preservation is required by law. Such reproduction, when satisfactorily identified, is as admissible in evidence as the original itself in any judicial or administrative proceeding whether the original is in existence or not and an enlargement or facsimile of such reproduction is likewise admissible in evidence if the original reproduction is in existence and available for inspection under direction of the court. The introduction of a reproduced record, enlargement or facsimile does not preclude admission of the original.

(Originally Adopted 12-3-03; Resolution # 03-12-04; Code 2004)

RULE 1005 - ADMISSIBILITY OF OTHER EVIDENCE OF CONTENTS

The original is not required, and other evidence of the contents of a writing, recording or photograph is admissible when:

(A) Originals Lost or Destroyed. All originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith;

(B) Original Not Obtainable. An original cannot be obtained by any available judicial process or procedure;

(C) Original in Possession of Opponent. At a time when an original was under the control of the party against whom offered, that party was put on notice, by the pleadings or otherwise, that the contents would be a subject of proof at the hearing, and the party does not produce the original at the hearing; or

(D) Collateral Matters. The writing, recording or photograph is not closely related to a controlling issue.

RULE 1006 - PUBLIC RECORDS

The contents of an official record or of a document authorized to be recorded or filed and actually recorded or filed, including data compilations in any form, if otherwise admissible, may be proved by copy, certified as correct in accordance with Rule 902 or testified to be correct by a witness who has compared it with the original. If such a copy cannot be obtained by the exercise of reasonable diligence, then other evidence of the contents may be given.

(Originally Adopted 12-3-03; Resolution # 03-12-04; Code 2004)

RULE 1007 - SUMMARIES

The contents of voluminous writings, recordings or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary or calculation. The originals, or duplicates, shall be made available for examination or copying, or both, by other parties at a reasonable time and place. The court may order that they be produced in court.

(Originally Adopted 12-3-03; Resolution # 03-12-04; Code 2004)

RULE 1008 - TESTIMONY OR WRITTEN ADMISSION OF PARTY

Contents of writings, recordings or photographs may be proved by the testimony or deposition of the party against whom offered or by the party's written admission, without accounting for the non-production of the original.

(Originally Adopted 12-3-03; Resolution # 03-12-04; Code 2004)

CHAPTER 11. COMPLAINT OF SEXUAL MISCONDUCT

RULE 1101. COMPLAINT OF SEXUAL MISCONDUCT

A complaint of sexual misconduct or complaint of child abuse as defined in this Law and Order Code made by the witness after the commission of the alleged misconduct or abuse at issue. Except as provided in Rule 1102, such evidence must be confined to the fact that the complaint was made.

(Originally Adopted 12-3-03; Resolution # 03-12-04; Code 2004)

RULE 1102. STATEMENT MADE BY A CHILD VICTIM OR PERSON WITH DEVELOPMENTAL DISABILITY

(A) A statement made by a child victim or person with developmental disabilities as described in paragraph (d) of this subsection, which statement concerns an act of child abuse, as defined in this Law and Order Code, or sexual conduct performed with or on the child or person with developmental disabilities by another, is not excluded by Rule 802 if the child or person with developmental disabilities either testifies at the proceeding and is subject to cross-examination or is chronologically or mentally under 12 years of age and is unavailable as a witness.

(B) However, when a witness under 12 years of age or a person with developmental disabilities is unavailable as a witness, the statement may be admitted in evidence only if the proponent establishes that the time, content and circumstances of the statement provide indicia of reliability, and in a criminal trial that there is corroborative evidence of the act of abuse or sexual conduct and of the alleged perpetrator's opportunity to participate in the conduct and that the statement possesses indicia of reliability as is constitutionally required to be admitted. No statement may be admitted under this paragraph unless the proponent of the statement makes known to the adverse party the proponent's intention to offer the statement and the particulars of the statement no later than 15 days before trial, except for good cause shown.

(C) For this paragraph, in addition to those situations described in Rule 804(1), the child or person with developmental disabilities shall be considered "unavailable" if the child or person with developmental disabilities has a substantial lack of memory of the subject matter of the statement, is presently incompetent to testify, is unable to communicate about the abuse or sexual conduct because of fear or other similar reason or is substantially likely, as established by expert testimony, to suffer lasting severe emotional trauma from testifying.

(D) Unless otherwise agreed by the parties, the court shall examine the child or person with developmental disabilities in chambers and on the record or outside the presence of the jury and on the record. The examination shall be conducted immediately prior to the commencement of the trial in the presence of the attorney and the legal guardian or other suitable adult as designated by the court.

(E) If the child or person with developmental disabilities is found to be unavailable, the court shall then determine the admissibility of the evidence. The purpose of the examination shall be to aid the court in making its findings regarding the availability of the child or person with developmental disabilities as a witness and the reliability of the statement of the child or person with developmental disabilities.

(F) In determining whether a statement possesses indicia of reliability under this paragraph, the court may consider, but is not limited to, the following factors:

(1) The personal knowledge of the child or person with developmental disabilities of the event;

(2) The age and maturity of the child or extent of disability of the person with developmental disabilities;

(3) Certainty that the statement was made, including the credibility of the person testifying about the statement and any motive the person may have to falsify or distort the statement;

(4) Any apparent motive the child or person with developmental disabilities may have to falsify or distort the event, including bias, corruption or coercion;

(5) The timing of the statement of the child or person with developmental disabilities;

(6) Whether more than one person heard the statement;

(7) Whether the child or person with developmental disabilities was suffering pain or distress when making the statement;

(8) Whether the child's young age makes it unlikely that the child fabricated a statement that represents a graphic, detailed account beyond the child's knowledge and experience;

(9) Whether the statement has internal consistency or coherence and uses terminology appropriate to the child's age or to the extent of the disability of the person with developmental disabilities;

(10) Whether the statement is spontaneous or directly responsive to questions; and

(11) Whether the statement was elicited by leading questions.

(Originally Adopted 12-3-03; Resolution # 03-12-04; Code 2004)

RULE 1103 - DEVELOPMENTAL DISABILITIES

(A) This subsection applies to all court proceedings.

(B) For the purposes of this subsection, "developmental disabilities" means any disability attributable to mental retardation, autism, cerebral palsy, epilepsy or other disabling neurological condition that requires training or support similar to that required by persons with mental retardation, if either of the following apply:

(1) The disability originates before the person attains 22 years of age, or if the disability is attributable to mental retardation the condition is manifested before the person attains 18 years of age, the disability can be expected to continue indefinitely, and the disability constitutes a substantial handicap to the ability of the person to function in society.

(2) The disability results in a significant sub-average general intellectual functioning with concurrent deficits in adaptive behavior that are manifested during the developmental period.

(Originally Adopted 12-3-03; Resolution # 03-12-04; Code 2004)

RULE 1104 - TESTIMONY OF CHILD UNDER TEN YEARS OF AGE CONCERNING SEXUAL CONDUCT

(A) Notwithstanding the limits contained in this Ordinance, in any proceeding in which a child under 12 years of age at the time of trial, or a person with developmental disabilities as described in this Ordinance, may be called as a witness to testify concerning an act of child abuse, as defined in this Law and Order Code, or sexual conduct performed with or on the child or person with developmental disabilities by another, the testimony of the child or person with developmental disabilities taken by contemporaneous examination and cross-examination in another place under the supervision of the trial judge and communicated to the court room by closed circuit television or other audiovisual means.

(B) Testimony will be allowed as provided in this subsection only if the court finds that there is a substantial likelihood, established by expert testimony, that the child or person with developmental disabilities will suffer severe emotional or psychological harm if required to testify in open court.

(C) If the court makes such a finding, the court, on motion of a party, the child, the person with developmental disabilities or the court in a civil proceeding, or on motion of the tribal attorney or tribal prosecutor, the child or the person with developmental disabilities in a criminal or juvenile proceeding, may order that the testimony of the child or the person with developmental disabilities be taken as described in this subsection.

(D) Only the judge, the attorneys for the parties, the parties, individuals necessary to operate the equipment and any individual the court finds would contribute to the welfare and well-being of the child or person with developmental disabilities may be present during the testimony of the child or person with developmental disabilities.

(Originally Adopted 12-3-03; Resolution # 03-12-04; Code 2004)

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