Ch 2-4 Rules of Evidence
TITLE 3 – COURTS AND RULES OF COURT PART II – RULES OF COURT
CHAPTER 2-4 – RULES OF EVIDENCE
TABLE OF CONTENTS
SUBCHAPTER A GENERAL PROVISIONS
Rule 1 Scope and Applicability 1
Rule 2 Purpose and Construction 1
Rule 3 Rulings on Evidence 1
Rule 4 Preliminary Questions 2
Rule 5 Limited Admissibility 2
SUBCHAPTER B RELEVANCY AND ITS LIMITS
Rule 6 Definition: Generally Admissible 2
Rule 7 Exclusion of Relevant Evidence 2
Rule 8 Character Evidence Not Admissible to Prove Conduct; Exceptions; Other Crimes 3
Rule 9 Methods of Proving Character Trait 3
Rule 10 Habit: Routine Practice 3
Rule 11 Subsequent Remedial Measures 3
Rule 12 Compromise and Offers of Settlement 3
Rule 13 Payment or Offer of Payment of Medical or Similar Expenses 3
Rule 14 Inadmissibility of Pleas, Plea Discussions, and Related Statements 4
Rule 15 Liability Insurance 4
Rule 16 Sexual Behavior 4
SUBCHAPTER C PRIVILEGES
Rule 17 Policy 5
Rule 18 General 5
Rule 19 Attorney-Client 5
Rule 20 Doctor-Patient 6
Rule 21 Clergy-Penitent 6
Rule 22 Husband-Wife 6
Rule 23 Waiver 6
SUBCHAPTER D WITNESSES
Rule 24 Competence: Personal Knowledge 7
Rule 25 Oath or Affirmation 7
Rule 26 Interpreters 7
Rule 27 Competency of Judge or Juror as Witness 7
Rule 28 Who May Impeach 7
Rule 29 How a Witness’ Credibility May Be Attacked 7
Rule 30 Impeachment by Evidence of Conviction of A Crime 7
Rule 31 Mode and Order of Interrogation and Presentation 8
Rule 32 Writing Used to Refresh Memory 8
Rule 33 Prior Inconsistent Statement of Witnesses 8
Rule 34 Calling and Interrogating of Witness by Court 8
Rule 35 Exclusion of Witnesses 9
SUBCHAPTER E HEARSAY
Rule 36 Definitions 9
Rule 37 Inadmissible 9
Rule 38 Statements Which Are Not Hearsay 9
Rule 39 Hearsay Exception: Availability of Declarant Immaterial 10
Rule 40 Hearsay Exceptions: Declarant Unavailable 11
Rule 41 Hearsay within Hearsay 11
Rule 42 Attacking and Supporting Credibility of Declarant 11
SUBCHAPTER F OPINION AND EXPERT TESTIMONY
Rule 43 Opinion Testimony by Lay Witness 12
Rule 44 Testimony by Experts 12
Rule 45 Bases of Opinion Testimony by Experts 12
Rule 46 Court Appointed Experts 12
SUBCHAPTER G AUTHENTICATION AND IDENTIFICATION
Rule 47 Requirement of Authentication or Identification 13
Rule 48 Self-Identification 13
SUBCHAPTER H CONTENTS OF WRITINGS, RECORDINGS AND PHOTOGRAPHS
Rule 49 Definitions 14
Rule 50 Requirement of Original 14
Rule 51 Admissibility of Duplicates 14
Rule 52 Admissibility of Other Evidence of Contents 15
Rule 53 Public Records 15
Rule 54 Summaries 15
Rule 55 Testimony or Written Admission by Party 15
TITLE 3 – COURTS AND RULES OF COURT PART II – RULES OF COURT
CHAPTER 2-4 – RULES OF EVIDENCE
Legislative History: Originally adopted as Interim Rules of Evidence by Resolution No. C0-5-88. Adopted on July 24, 1991 as Rules of Evidence by Resolution No. C7-47-91.
Adopted on May 26, 1992 the Tribal Codes and Rescinded all other conflicting tribal codes by Resolution No. C5-42-92.
January 28, 2003 adopted Pascua Yaqui Code and rescinded all prior codes by Resolution No. C01-04-03.
Amended and codified on December 16, 2004 by Resolution No. C12-224-04. Recodified Pascua Yaqui Tribal Code on Aug. 9, 2006 by Res. No. C08-313-06.
SUBCHAPTER A GENERAL PROVISIONS
Rule 1 Scope and Applicability (3 PYT R.Evid. Rule 1)
- These rules govern proceedings in the Tribal Court of the Pascua Yaqui Tribe.
- These rules apply generally to civil actions and proceedings, to criminal cases and proceedings, to contempt proceedings, and to juvenile proceedings.
- These rules do not apply to preliminary examinations in criminal cases; sentencing, or granting or revoking probation or parole; issuance of warrants for arrest; criminal summonses and search warrants; and proceedings with respect to release on bail or otherwise.
Rule 2 Purpose and Construction (3 PYT R.Evid. Rule 2)
These rules shall be construed to secure fairness in administration of justice, elimination of unjustifiable expense and delay, and promotion of growth and development of the law to the end that the truth may be ascertained and proceedings justly determined.
Rule 3 Rulings on Evidence (3 PYT R.Evid. Rule 3)
- Effect of Erroneous Ruling. Error may not be predicated on a ruling which admits or excludes evidence unless a substantial right of the party is affected, and
- Objection. In case the ruling is one admitting evidence, a timely objection or motion to strike is made and appears on the record, stating the specific ground for the objection, if such is not obvious from the context; or
- Offer of proof. In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer of proof or was apparent from the context within which the question was asked.
- 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 of proof in question and answer form.
- Hearing of the Jury. In jury cases, proceedings shall be conducted to the extent practicable, so as to prevent the inadmissible evidence from being suggested to the jury by any means, such as making statement or offers of proof or asking questions in the hearing of the jury.
- Plain Error. Nothing in the rule precludes taking notice of plain errors affecting substantial rights although they were not brought to the attention of the court.
Rule 4 Preliminary Questions (3 PYT R.Evid. Rule 4)
- Questions of Admissibility Generally. Preliminary questions concerning the qualifications 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). In making its determination, the court is not bound by the Rules of Evidence except those pertaining to privileges.
- Relevancy Conditioned on Fact. When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it subject to the introduction of evidence sufficient to support a finding that the condition of fact was fulfilled.
- Hearing of the Jury. Hearings on the admissibility of confessions shall in all cases be conducted out of the hearing of the jury. Hearings on other preliminary matters shall be so conducted when the interests of justice require, or when an accused is a witness and so requests.
- 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.
- Weight and Credibility. This rules does not limit the right of a party to introduce before the jury evidence relevant to weight or credibility.
Rule 5 Limited Admissibility (3 PYT R.Evid. Rule 5)
When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly.
SUBCHAPTER B RELEVANCY AND ITS LIMITS
Rule 6 Definition: Generally Admissible (3 PYT R.Evid. Rule 6)
- “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.
- All evidence is generally admissible, except as otherwise provided by the Pascua Yaqui Constitution, by acts of the Tribal Council, by these rules or other rules prescribed by the court pursuant to statutory authority.
- Evidence which is not relevant is not admissible.
Rule 7 Exclusion of Relevant Evidence (3 PYT R.Evid. Rule 7)
Evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury or it will unduly delay, waste time or be a needless presentation of cumulative evidence.
Rule 8 Character Evidence not Admissible to Prove Conduct; Exceptions; Other Crimes (3 PYT R.Evid. Rule 8)
- Generally. Evidence of the character or character trait of a witness or the accused is not admissible if it is to be used to prove conduct or for the purpose of proving action in conformity therewith on a particular occasion.
- The accused may offer evidence of his own pertinent character traits, and the prosecution may do so to rebut the same.
- Evidence of a pertinent character trait of the victim, if offered by the accused, except in rape, assault with intention to commit rape, or if offered by the prosecution to rebut the same is admissible.
- Evidence of other crimes or wrongs or acts for the purpose of showing motive, intent, opportunity, preparation, plan, knowledge, identity or absence of mistake or accident.
Rule 9 Methods of Proving Character Trait (3 PYT R.Evid. Rule 9)
- 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.
- Specific Instances of Conduct. In cases in which character or trait of character of a person is an essential element of a charge, claim, or defense, proof may be made of specific instances of that person’s conduct.
Rule 10 Habit: Routine Practice (3 PYT R.Evid. Rule 10)
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 eye witnesses, 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.
Rule 11 Subsequent Remedial Measures +(3 PYT R.Evid. Rule 11)
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 impeached.
Rule 12 Compromise and Offers of Settlement (3 PYT R.Evid. Rule 12)
Evidence of accepting or offering a compromise of a disputed claim shall not be admissible to prove liability or invalidity of the claim or amount. Evidence of conduct or statements made in compromise negotiations is inadmissible.
Rule 13 Payment or Offer of Payment of Medical or Similar Expenses (3 PYT R.Evid. Rule 13)
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.
Rule 14 Inadmissibility of Pleas, Plea Discussions, and Related Statements (3 PYT R.Evid. Rule 14)
Except as otherwise provided in this rule, evidence of the following is not, in any civil or criminal proceeding, admissible against the defendant who made the plea or was a participant in the plea discussions:
- A plea of guilty which was later withdrawn.
- Any statement made in the course of any proceedings under Rule 27 of the Pascua Yaqui Rules of Criminal Procedure, Rule 11 of the Federal Rules of Criminal Procedure or comparable state procedure regarding the foregoing plea; or
- Any statement made in the course of plea discussions with an attorney for the prosecuting authority which do not result in a plea of guilty or which result in a plea of guilty later withdrawn.
- However, such a statement is admissible (1) in any proceeding wherein another statement made in the course of the same plea or plea discussions has been introduced and the statement ought, in fairness, be considered contemporaneously with it, or (2) in a criminal proceeding for perjury or false statement if the statement was made by the defendant under oath, on the record and in the presence of counsel.
Rule 15 Liability Insurance (3 PYT R.Evid. Rule 15)
Evidence that a person was or was not insured against liability is not admissible upon the issue of whether the person acted negligently or otherwise wrongfully. This rule does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness.
Rule 16 Sexual Behavior (3 PYT R.Evid. Rule 16)
- When inadmissible. In a criminal case in which a person is accused of a sexual offense against another person, the following is not admissible:
- Evidence of reputation or opinion regarding other sexual behavior of the victim of the sexual offense alleged.
- Evidence of specific instances of sexual behavior of an alleged victim with persons other than the accused offered on the issue of whether the alleged victim consented to the sexual behavior with respect to the sexual offense alleged.
- Exceptions. This rule does not require the exclusion of evidence of:
- Specific instances of sexual behavior if offered for a purpose other than the issue of consent, including proof of the source of semen, pregnancy, disease, injury, mistake or the intent of the accused; or
- False allegations of sexual offenses; or
- Sexual behavior with other than the accused at the time of the event giving rise to the sexual offense alleged.
SUBCHAPTER C PRIVILEGES
Rule 17 Policy (3 PYT R.Evid. Rule 17)
It is the policy of the Tribal Court to encourage and foster certain relationships of trust and confidence. Thus, it is believed that the probative value of certain communications is substantially outweighed by the impairment of those relationships which would result from disclosure.
Rule 18 General (3 PYT R.Evid. Rule 18)
- The communication must come within the rule.
- Generally the privilege does not cease upon the termination of the relationship.
- The privilege does not extend to communications in furtherance of an illegal purpose.
- Communications not made in confidence (i.e., intended to be relayed to third parties, made in the presence of third parties, etc.) are not within the privilege.
- Waiver of the privilege can only be affected by the holder; (i.e. by the client or patient) and not by the professional. In matters of non-professional privilege, the waiver can only be affected by the one making the communications.
- A third person unknown to the privilege holder cannot testify about the communication between the parties if the conversation took place in a location where there was a reasonable expectation of privacy.
Rule 19 Attorney – Client (3 PYT R.Evid. Rule 19)
- “Client” is a person, corporation, public officer, association, or other organization or entity, either public or private, who is rendered professional legal services by a lawyer, or who consults with a lawyer with the view of obtaining professional legal services from the lawyer.
- “Lawyer” is a person authorized or reasonably believed by the client to be authorized to practice law in the relevant jurisdiction, state or nation.
- A communication is “confidential” if it is not intended to be disclosed to any third party.
- A lawyer shall not, without consent of the client, be examined as to any communication made by the client to him, or his advice given thereon in the course of professional representation.
- The lawyer’s staff, including secretary, clerk, stenographer, etc., shall not be examined concerning any fact or knowledge which was acquired in such capacity.
- Exceptions. There is no privilege under this rule where:
- The services sought or obtained were to enable someone in the furtherance of a crime or fraud, which the client knew or reasonably should have known to be a crime or fraud;
- The communication is relevant to an issue of breach of duty by the lawyer to the client, or by the client to his lawyer;
- The communication is 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.
Rule 20 Doctor – Patient (3 PYT R.Evid. Rule 20)
A physician, surgeon or medicine man/woman shall not, without the consent of a patient, be examined as to any communication made by the patient with reference to any physical or mental disease or disorder or supposed physical or mental disease or disorder or as to any such knowledge obtained by personal examination of the patient. The patient has the privilege to refuse to disclose and to prevent any other person from disclosing confidential communications, made for the purpose of diagnosis, treatment, or consultation of the patient’s physical or mental condition, among himself, the physician or any persons who are participating in the diagnosis, treatment or consultation under the direction of the physician.
- A “physician” is a person authorized to provide medical services, treatment, diagnosis or consultation including a person trained in the traditional Native American healing practices in any state or nation, or reasonably believed by the patient to be so.
- A “patient” is a person who consults, or is examined or interviewed by a physician.
- The patient, by placing his medical condition at issue, (i.e., by filing a personal injury suit) waives this privilege.
Rule 21 Clergy-Penitent (3 PYT R.Evid. Rule 21)
A person has a privilege to refuse to disclose and prevent another from disclosing a confidential communication by the person to a clergyman in his professional character as a spiritual advisor.
- A “clergyman” is a minister, priest, rabbi, traditional Native American spiritual leader or other similar functionary of a religious organization, including such which is recognized by the customs of the tribe, or an individual reasonably believed to be so by the person consulting him.
- A “clergyman” may claim the privilege on behalf of the person, if that person has not done so nor waived the privilege. Such authority is presumed absent evidence to the contrary.
Rule 22 Husband-Wife (3 PYT R.Evid. Rule 22)
- Anti-Marital Fact. In any action before the court, a husband may not be examined for or against his wife without her consent, and a wife may not be examined for or against her husband without his consent, as to events occurring in the marriage.
- Communications. Neither husband nor wife may be examined during the marriage or after the marriage as to any communication made by one or the other during the marriage without consent of the other, i.e., the speaker. Only the speaker may waive this privilege.
- In any action for divorce or a civil action by one against the other, these privileges are deemed waived.
- In a criminal action or proceeding for a crime committed by one against the other, or in a criminal proceeding for abandonment, failure to support or provide for, or failure or neglect to furnish the necessities of life to spouse or the minor children, these privileges are deemed waived.
Rule 23 Waiver (3 PYT R.Evid. Rule 23)
A person upon whom this rule confers a privilege against disclosure of confidential matters or communications waives the privilege if the person, while the holder of the privilege, voluntarily discloses or consents to disclosure of any significant part of the matter or communication.
SUBCHAPTER D WITNESSES
Rule 24 Competence; Personal Knowledge (3 PYT R.Evid. Rule 24)
- Every person is competent to testify except as otherwise provided by these rules or by statute.
- A witness may not testify about a matter unless it is shown that the witness has personal knowledge about the matter. Such a showing may, but need not, consist of the witness’ own testimony. This rule is subject to Rule 44 regarding opinion testimony of experts.
Rule 25 Oath or Affirmation (3 PYT R.Evid. Rule 25)
Before testifying in Tribal Court, every witness shall first state before the judge, parties, and spectators that he will testify truthfully pursuant to an oath prescribed by the court.
Rule 26 Interpreters (3 PYT R.Evid. Rule 26)
All interpreters before the court are subject to the administration of an oath of affirmation to make a true interpretation.
Rule 27 Competency of Judge or Juror as Witness (3 PYT R.Evid. Rule 27)
- The judge presiding at trial may not testify in that trial as a witness.
- A member of the jury may not testify at a trial in which the juror is sitting as a trier of fact.
Rule 28 Who May Impeach (3 PYT R.Evid. Rule 28)
The credibility of a witness may be attacked by any party, including the party calling the witness to testify.
Rule 29 How a Witness’ Credibility may be Attacked (3 PYT R.Evid. Rule 29)
- The witness’ credibility may be attacked or supported by evidence of opinion or reputation, provided such evidence refers to truthfulness or unfaithfulness; and evidence of truthfulness is admissible only when it has been attacked by opinion or reputation evidence or otherwise.
- Specific instances of conduct of a witness, for the purpose of attacking or supporting his credibility, may only be inquired into on cross examination, concerning the witness’ truthfulness or untruthfulness. This rule does not operate as a waiver of the privilege against self-incrimination.
Rule 30 Impeachment by Evidence of Conviction of a Crime (3 PYT R.Evid. Rule 30)
- For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted, if it is elicited from the witness or established by public record, during cross examination, but only if the crime
- was punishable by death or imprisonment in excess of one year pursuant to the law under which he was convicted; or
- It involved dishonesty or false statement, regardless of the punishment.
- Evidence under this rule is not admissible if ten years have elapsed since the date of conviction or date of release from the confinement for that conviction whichever is the later; nor shall juvenile adjudications be admissible.
Rule 31 Mode and Order of Interrogation and Presentation (3 PYT R.Evid. Rule 31)
- Control by court: The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence as to:
- Make the interrogation and presentation effective for the ascertainment of the truth, and
- Avoid needless consumption of time, and
- Protect witnesses from harassment or undue embarrassment.
- Scope or 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.
- Leading Questions: Leading questions shall not be used on the direct examination of a witness except as may be necessary to develop the witness’ testimony. Leading questions shall 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.
Rule 32 Writing Used to Refresh Memory (3 PYT R.Evid. Rule 32)
- If a witness uses a writing to refresh memory for the purpose of testifying, either while testifying, or before testifying, if the court in its discretion determines it is necessary in the interest of justice, 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 in evidence those portions which relate to the testimony of the witness.
- 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 Court of Appeals in the event of an appeal.
- If a writing is not produced or delivered pursuant to 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.
Rule 33 Prior Inconsistent Statement of Witnesses (3 PYT R.Evid. Rule 33)
- When examining a witness regarding a prior statement made by him, the statement need not be disclosed to the witness at that time; but upon request it shall be shown or disclosed to opposing counsel.
- Evidence of a prior inconsistent statement by a witness is not admissible unless the witness is given an opportunity to explain or deny it, and the opposing party is afforded an opportunity to interrogate the witness thereon.
- The rule does not apply to admission by the party opponent covered under Rule 38(B).
Rule 34 Calling and Interrogating of Witness by Court (3 PYT R.Evid. Rule 34)
- Calling by the court: The court may, on its own motion or at the suggestion of a party, call witnesses, and all parties are entitled to cross-examine witnesses thus called.
- Interrogation by the court: The court may interrogate witnesses, whether called by itself or by a party.
- Objections: Objections to the calling of witnesses by the court or to interrogation by it may be made at the time or at the next available opportunity when the jury is not present.
Rule 35 Exclusion of Witnesses (3 PYT R.Evid. Rule 35)
At the request of a party or, on its own motion, the court shall order witnesses to be excluded from the court room, so that they cannot hear the testimony of other witnesses. This rule does not apply to:
- Officer or employee of a party.
- Person whose presence is essential to the presentation of a party’s cause.
SUBCHAPTER E HEARSAY
Rule 36 Definitions (3 PYT R.Evid. Rule 36)
The following definitions apply to this Chapter.
- “Statement” is
- Oral or written assertion, or
- Nonverbal conduct of a person, if it is intended by him to be an assertion.
- “Declarant” is the person who makes the statement.
- “Hearsay” is a statement other than one made by the declarant, made out of court, offered in evidence to prove the truth of the matter asserted.
Rule 37 Inadmissible (3 PYT R.Evid. Rule 37)
Hearsay is not admissible except as provided by these rules.
Rule 38 Statements Which Are Not Hearsay (3 PYT R.Evid. Rule 38)
- Prior statements by witness. Prior statement by witness is not hearsay when the declarant testifies and is subject to cross-examination, and the statement is:
- Inconsistent with declarant’s court testimony and given under oath subject to penalty of perjury, or
- Consistent with the declarant’s testimony and is offered to rebut an expressed or implied charge against the declarant of recent fabrication or improper influence or motive, or
- One of identification of a person made after perceiving the person.
- Admission by party opponent. When a statement is offered against the party and is:
- The party’s own statement, or one which the party has manifested an adoption or belief in its truth, or
- A statement by a person authorized by the party to make a statement, or
- A statement by the party’s agent or servant acting within the scope of agency or employment, or
- A statement made by a co-conspirator of a party during the course and in furtherance of the conspiracy.
Rule 39 Hearsay Exception: Availability of Declarant Immaterial (3 PYT R.Evid. Rule 39)
The following are not excluded by the Hearsay Rule, even though the declarant is available as a witness:
- Present Sense Impression. A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition or immediately thereafter.
- 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.
- Statements for purpose of medical diagnosis or treatment statements made for the purpose of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character or the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.
- Recorded Recollection. A memorandum or record concerning a matter about which the witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness’ memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.
- Business Records. 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 testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term “business” as used in this paragraph includes business, institution, association, profession, occupation, and calling of ever kind, whether or not conducted for profit.
- Public Records and Reports. Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth:
- The activities of the office or agency, or
- 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
- 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.
Rule 40 Hearsay Exceptions; Declarant Unavailable (3 PYT R.Evid. Rule 40)
- Definition of “Unavailability:” A declarant is unavailable in situations where the declarant:
- Is exempted by ruling of the court on the grounds of privilege from testifying;
- Persists in refusing to testify despite an order of court to do so;
- Testifies to a lack of memory;
- Is unable to be present because of death or then existing physical or mental illness or infirmity;
- Is absent from the hearing and the proponent of the statement has been unable to procure the declarant’s attendance by process or other reasonable means.
- A declarant is not unavailable as a witness if that unavailability is due to the procurement or wrongdoing of the proponent of the statement for the purpose of preventing the witness from attending or testifying.
- Exceptions: The following are not excluded by the Hearsay Rule if the declarant is unavailable as a witness.
- Former testimony. Testimony which was given under oath at the same or different proceeding, so long as the party against whom it is offered, or in a civil proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.
- Statement against Interest. A statement, at the time made, that is so far contrary to the declarant’s pecuniary or proprietary interest, or so far tended to subject the declarant to criminal or civil liability, that a reasonable person in the declarant’s position would not have made the statement, unless he 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.
- Statement under Belief of Impending Death. In a prosecution for homicide or in a civil action or proceedings, a statement made by a declarant while believing that the declarant’s death was imminent, concerning the cause or circumstances of what the declarant believed to be impending death.
Rule 41 Hearsay within Hearsay (3 PYT R.Evid. Rule 41)
Hearsay included within hearsay is not excluded under the Hearsay Rules if each part of the combined statements conforms independently with an exception to the Hearsay Rules provided herein.
Rule 42 Attacking and Supporting Credibility of Declarant (3 PYT R.Evid. Rule 42)
When a hearsay statement, or statement defined in Rule 38(B), has been admitted into evidence, the credibility of the declarant may be attacked, and if attacked may be supported, by any evidence which would have been admissible for such purposes had the declarant testified. Evidence of a statement or conduct by the declarant at any time, inconsistent with the declarant’s hearsay statement is not subject to any requirement that the declarant may have been afforded an opportunity to deny or explain. If the party against whom a hearsay statement has been admitted calls the declarant as a witness, the party is entitled to examine the declarant on the statement as if under cross-examination.
SUBCHAPTER F OPINION AND EXPERT TESTIMONY
Rule 43 Opinion Testimony by Lay Witness (3 PYT R.Evid. Rule 43)
If the witness is not testifying as an expert, the witness’ testimony in the form of opinion is limited to those which are:
- Rationally based on the perception of the witness, and
- Helpful to a clear understanding of the witness’ testimony or a determination of a fact in issue.
Rule 44 Testimony by Experts (3 PYT R.Evid. Rule 44)
- 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 in the form of opinion or otherwise.
- The facts or data in the particular case upon which the expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If the facts or data are of such 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.
Rule 45 Bases of Opinion Testimony by Experts (3 PYT R.Evid. Rule 45)
The 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. However, the expert may be required to disclose such underlying facts or data on cross examination.
Rule 46 Court Appointed Experts (3 PYT R.Evid. Rule 46)
- The court may on its own motion, or on the motion of any party enter an order to show cause why expert witnesses should not be appointed, and may request the parties to submit nominations.
- The court may appoint any expert witnesses agreed upon by the parties, and may appoint expert witnesses of its own selection.
- Upon consenting to act, the witness shall be informed of the duties, either in writing by the court, copy to be filed with the clerk, or at a conference in which the parties may participate.
- A witness shall advise the parties of his findings, if any; his deposition may be taken by any party; the witness may be called to testify by the court or any party; the witness shall be subject to cross-examination by each party, including the party calling the witness.
- Compensation. The court shall determine appropriate compensation.
- Disclosure. In the exercise of its discretion, the court may authorize disclosure to the jury of the fact that the court appointed the expert witness.
- Nothing in this rule limits either party from calling expert witnesses of their own selection.
SUBCHAPTER G AUTHENTICATION AND IDENTIFICATION
Rule 47 Requirement of Authentication or Identification (3 PYT R.Evid. Rule 47)
- General. 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 questions is what its proponent claims.
- Illustrations. The following are illustrative examples conforming to this rule, and are not limitations:
- Testimony by a witness with knowledge that the matter is what it is claimed to be.
- Distinctive characteristics in appearance, contents, substance, internal patterns, taken in conjunction with circumstances which support that the matter is what it is claimed to be.
- 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 other time under circumstances connecting it with the alleged speaker.
- Telephone conversations, by evidence that a call was made to the number assigned at the time by the phone company to a particular person or business, if:
- To a person, circumstances include self-identification, showing the person answering the phone to be the one called, or
- To a business, the call was made to a place of business and the conversation related to business reasonably transacted over the phone.
- Public records or reports. Evidence that a writing authorized by law to be recorded or filed and in fact was recorded or filed in the public offices and is from the public office where items of this nature are kept.
Rule 48 Self-Identification (3 PYT R.Evid. Rule 48)
Extrinsic evidence of the authenticity as a condition precedent to admissibility is not required for the following:
- Official Public Documents. Documents bearing the official seal and attesting or executing signature of the United States, any State, Indian Nation, or district, territory, political subdivision, department or agency thereof.
- Public Documents. Documents without official seal by purporting to have authorizing signature of official or employee of any entity included in Subsection (A) above, who has the official capacity to certify under seal and such signature is genuine.
- Foreign Documents. Documents purporting to be executed or attested in an official capacity by a person authorized under the laws of a foreign country, to make such an execution and accompanied by a final certification as to the genuineness of the signature and official position of:
- The executing or attesting person, or
- Any foreign official whose certification of genuineness relates to the execution or attestation.
Final certification may be made by a secretary of the embassy or legation, consul general, consul, vice consul, or consular agent of the U.S. or a diplomatic or consular official of the foreign country assigned to the U.S.
- 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 is filed or recorded in a public office, certified as correct by the custodian or other person authorized to make the certification, which complies with Subsections (A), (B) or (C) of this rule.
- Official Publications. Books, pamphlets or other publications purporting to be issued by a public authority.
- Newspapers and Periodicals. Printed materials purporting to be a newspaper or periodical.
- Signs, Tags, Labels. Inscriptions, signs, tags, labels purporting to have been affixed in the course of business and indicating ownership, control or origin.
- Documents accompanied by a certification of acknowledgement executed in the manner provided by law by a notary public or other officer authorized by law to make acknowledgements.
- Commercial paper, signatures thereon, and documents relating thereto to the extent provided by general commercial law.
SUBCHAPTER H CONTENTS OF WRITINGS, RECORDINGS AND PHOTOGRAPHS
Rule 49 Definitions (3 PYT R.Evid. Rule 49)
- “Writings” and “recordings” consist of letters, words, numbers or their equivalent, set down by handwriting, typewriting, printing, photostating, photographing, magnetic impulse, mechanical or electronic recording or other forms of data compilation.
- “Photographs” include still photographs, x-ray films, video tapes, and motion pictures.
- An “original” of a writing or recordings is the thing itself, or any counterpart intended to have the same effect by a person executing or issuing it. An “original” photograph includes the negative or any print there from. If data is stored in a computer or similar device, any printout or other output readable by sight, shown to reflect the data accurately is an original.
- “Duplicate” is a counterpart produced by the same impression as the original, or from the same matrix, or by means of photography including enlargements and miniatures, or by mechanical or electronic re-recordings, or by chemical reproduction, or by other equivalent technique which accurately reproduces the original.
Rule 50 Requirement of Original (3 PYT R.Evid. Rule 50)
To prove the content of a writing, recording or photograph, the original is required, except as otherwise provided in these rules.
Rule 51 Admissibility of Duplicates (3 PYT R.Evid. Rule 51)
A duplicate is admissible to the same extent as an original unless:
- A genuine question is raised as to the authenticity of the original, or
- In the circumstances, it would be unfair to admit the duplicate instead of the original.
Rule 52 Admissibility of Other Evidence of Contents (3 PYT R.Evid. Rule 52)
The original is not required and other evidence of the contents of the writing, recording or photograph is admissible if:
- The original is lost or destroyed, unless such loss or destruction has been done by the proponent in bad faith; or
- The original cannot be obtained by any available judicial process or procedure; or
- The original is in possession of the opponent and that party has been notified by pleadings or otherwise, that the contents will be subject to proof at the hearing, and the party/opponent does not produce the original at the hearing; or
- The writing, recording or photograph is not closely related to a controlling issue.
Rule 53 Public Records (3 PYT R.Evid. Rule 53)
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 48(D) or testified to be correct by a witness who has compared it with the original. If a copy which complies with the foregoing cannot be obtained by the exercise of reasonable diligence, then other evidence of the contents may be given.
Rule 54 Summaries (3 PYT R.Evid. Rule 54)
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 the other party at a reasonable time and place. The court may order that they be produced in court.
Rule 55 Testimony or Written Admission by Party (3 PYT R.Evid. Rule 55)
Contents of writings, recordings or photographs may be proved by the testimony or deposition of the party against who offered or by that party’s written admission, without accounting for the non-production of the original.
|Former Rule||New Rule|
|Article One||Subchapter A|
|Rule 100||Rule 1|
|Rule 101||Rule 2|
|Rule 102||Rule 3|
|Rule 103||Rule 4|
|Rule 104||Rule 5|
|Article Two||Subchapter B|
|Rule 200||Rule 6|
|Rule 201||Rule 7|
|Rule 202||Rule 8|
|Rule 203||Rule 9|
|Rule 204||Rule 10|
|Rule 205||Rule 11|
|Rule 206||Rule 12|
|Rule 207||Rule 13|
|Rule 208||Rule 14|
|Rule 209||Rule 15|
|Rule 210||Rule 16|
|Article Three||Subchapter C|
|Rule 300||Rule 17|
|Rule 301||Rule 18|
|Rule 302||Rule 19|
|Rule 303||Rule 20|
|Rule 304||Rule 21|
|Rule 305||Rule 22|
|Rule 306||Rule 23|
|Article Four||Subchapter D|
|Rule 400||Rule 24|
|Rule 401||Rule 25|
|Rule 402||Rule 26|
|Rule 403||Rule 27|
|Rule 404||Rule 28|
|Rule 405||Rule 29|
|Rule 406||Rule 30|
|Rule 407||Rule 31|
|Rule 408||Rule 32|
|Former Rule||New Rule|
|Rule 409||Rule 33|
|Rule 410||Rule 34|
|Rule 411||Rule 35|
|Article Five||Subchapter E|
|Rule 500||Rule 36|
|Rule 501||Rule 37|
|Rule 502||Rule 38|
|Rule 503||Rule 39|
|Rule 504||Rule 40|
|Rule 505||Rule 41|
|Rule 506||Rule 42|
|Article Six||Subchapter F|
|Rule 600||Rule 42|
|Rule 601||Rule 43|
|Rule 602||Rule 44|
|Rule 603||Rule 45|
|Article Seven||Subchapter G|
|Rule 700||Rule 46|
|Rule 701||Rule 47|
|Article Eight||Subchapter H|
|Rule 800||Rule 48|
|Rule 801||Rule 49|
|Rule 802||Rule 50|
|Rule 803||Rule 51|
|Rule 804||Rule 52|
|Rule 805||Rule 53|
|Rule 806||Rule 54|
|Rule 807||Rule 55|