Evidence

These rules, adopted by unanimous vote of the District Judges of the Navajo Nation, shall constitute the rules of evidence in all proceedings in the Courts of the Navajo Nation and shall become effective on April 1, 1978.

(a)              Effect of Erroneous Ruling. 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 judge by offer or was apparent from the context within which questions were asked.

(b)              Record of Offer and Ruling.  The judge 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.  He may direct the making of an offer in question and answer form.

(c)              Hearing of Jury.  In jury cases, proceedings shall be conducted, to the extent practicable, so as to prevent inadmissible evidence from being suggested tot he jury by any means, such as making statements or offers of proof or asking questions in the hearing of the jury.

(d)              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 judge.

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

When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require him at that time to introduce any other party or any other writing or recorded statement which ought in fairness to be considered [contemporaneously] with it.

(a)              Scope of Rule.  This rule governs only judicial notice of adjudicative facts.

(b)              Kinds of Facts.  A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the community, or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned, or (3) notice is provided for by statute.

(c)              When Discretionary.  A judge or court may take judicial notice, whether requested or not.

(e)              When Mandatory.  A judge or court shall take judicial notice if requested by a party and supplied with the necessary information.

(e)              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.

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

(g)              Instructing Jury.  The judge shall instruct the jury to accept as established any facts judicially noticed.

In all cases not otherwise provided for by statute or by these rules, a presumption imposes on the party against whom it is directed the burden of proving the nonexistence of the presumed fact is more probable than its existence.

Except as otherwise provided by statute, in criminal cases, presumptions against an accused, recognized as common law or created by statute, including statutory provisions that certain facts are prima facie evidence of other facts or of guilt, are governed by this rule.

“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 relevant evidence is admissible, except as otherwise provided by constitution, by statute, by these rules, or by other rules adopted by the courts.  Evidence, which is not relevant, is not admissible.

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issue, or misleading the jury, or by consideration of undue delay, waste of time, or needless presentation of cumulative evidence.

1. Character Evidence Generally. Evidence of a person’s character or trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion, except:
   1. Character of Accused. Evidence of a pertinent trait of his character offered by an accused, or by the prosecution to rebut the same;
   2. Character of Victim. Evidence of a pertinent trait of character of the victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the first aggressor;
   3. Character of Witness. Evidence of the character of a witness, as provided in our rules.
2. Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs, and acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. This subdivision does not exclude the evidence when offered for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
3. 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.
4. Specific Instances of Conduct. In cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of his conduct.
5. Admissibility. 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.

Habit or routine practice may be proved by testimony in the form of an opinion or by specific instances of conduct sufficient in number to warrant a finding that the habit existed or that the practice was routine.

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.

Evidence of (1) furnishing or offering or promising to furnish or (2) accepting or offering or promising to accept, a valuable consideration in a compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount.  Evidence of conduct or statements made in compromise negotiations is likewise not admissible.  This rule does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice of a witness, negativing a contention of undue delay, or proving an effort to obstr[u]ct a criminal investigation or prosecution.

Evidence of furnishing or offering or promising to pay medical, hospital, or similar expenses occasioned by an injury is not admissible as an admission of liability for the injury.

Evidence of a plea of guilty, later withdrawn, or a plea of nolo contendere, or of an offer to plead guilty or nolo contendere to the crime charged or any other crime, or of statements made in connection with any of the foregoing plea or offers, is not admissible in any civil or criminal proceeding against the person who made the plea or offer.

Evidence that a person was or was not insured against liability is not admissible upon the issue whether he acted negligently or otherwise wrongfully. This 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.

Except as otherwise required by constitution, and except as provided in these rules or in other rules adopted by the judges, no person has a privilege to:

(1)              Refuse to be a witness; or

(2)              Refuse to disclose any matter; or

(3)              Refuse to produce any object or writing; or

(4)              Prevent another from being a witness or disclosing any matter or producing any object or writing.

(1)              Lawyer – Client

(2)              Psychotherapist – Patient

(3)              Husband – Wife

(4)              Communications to clergymen

(5)              Secret ballot in political vote

(6)              Trade secrets

(7)              Any privileges derived from the Constitution of the United States.

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.

(a)              Comment or Interference Not Permitted.  The claim of a privilege, whether in the present proceeding or upon a prior occasion, is not a proper subject of comment by judge or counsel.  No inference may be drawn therefrom.

(b)              Claiming Privilege Without Knowledge of Jury.  In jury case, proceedings shall be conducted, to the extent practicable, so as to facilitate the making of claims of privilege without the knowledge of the jury.

(c)              Jury Instruction.  Upon request, any party against whom the jury might draw an adverse inference from a claim of privilege is entitled to an instruction that no inference may be drawn therefrom.

(a)              A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that he has personal knowledge of the matter.  Evidence to prove personal knowledge may, but need not, consist of the testimony of the witness himself.  The exception to this is expert witnesses (Rule 23 & 24).

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

(c)              An interpreter is subject to the provisions of these rules relating to qualification as an expert and the administration to an oath or affirmation that he will make a true translation.

(d)              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.

(e)              Competency of Juror as Witness.

(1)        At the Trial.  A member of the jury may not testify as a witness before that jury in the trial of the case in which he is sitting as a juror.  If he is called to testify, the opposing party shall be afforded an opportunity to object out of the presence of the jury.

(2)        Inquiry Into Validity of Verdict.  Upon an inquiry into the validity of a verdict, a juror may not testify as to any matter or statement occurring during the court of the jury’s deliberations or to the effect of anything upon his or any other juror’s mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith, except that a juror may testify on the question whether any outside prejudicial information or influence was improperly brought to bear upon any juror.  Nor may his affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying be received.

(a)   (1)      Opinion and Reputation Evidence of Character.  The credibility of a witness may be attacked or supported by evidence in the form of reputation or opinion, but subject to these limitations: (a) the evidence may refer only to character for truthfulness or untruthfulness, and (b) 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.

       (2)       Specific Instances of Conduct.  Specific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility, other than conviction of crime may not be proved by extrinsic evidence.  They may, however, if probative of truthfulness or untruthfulness and not remote in time, be inquired into on cross-examination of the witness himself or on cross-examination of a witness who testifies to his character for truthfulness or untruthfulness.

                  The giving of testimony, whether by an accused or by any other witness, does not operate as a waiver of his privilege against self-incrimination when examined with respect to mattes which relate only to credibility.

(b)   (1)      General Rule.  For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime is admissible but only if the crime (a) was punishable by death or imprisonment in excess of one year under the law under which he was convicted or (b) involved dishonesty or false statement regardless of the punishment.

(2)     Time Limit.  Evidence of a conviction under this rule is not admissible if a period of more than 10 years has elapsed since the date of the release of the witness from confinement imposed for his most recent conviction, or the expiration of the period of his parole, probation, sentence granted or imposed with respect to his most recent conviction, whichever is the later date.

(3)     Effect of Pardon, Annulment, or Certificate of Rehabilitation.  Evidence of a conviction is not admissible under this rule if (a) the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a substantial showing of rehabilitation and the witness has not been convicted of a subsequent crime, or (b) the conviction has been the subject of a pardon, annulment, or other equivalent procedure based on innocence.

(4)    Juvenile Adjudications.  Evidence of juvenile adjudications is generally not admissible under this rule.  The judge may, however, allow evidence of a juvenile adjudication of a witness other than the accused if conviction of the offense would be admissible to attack the credibility of an adult and the judge is satisfied that admission in evidence is necessary for a fair determination of the issue of guilt or innocence.

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

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

(a)              Control by Judge.  The judge shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment.

(b)              Scope of Cross-Examination.  A witness may be cross-examined only with respect to matters testified to on direct examination.

(c)              Leading Questions.  Leading questions should not be used on the direct examination of a witness except a may be necessary to develop his testimony.  Ordinarily leading questions should be permitted on cross-examination.  In civil cases, a party is entitled to call an adverse party or witness identified with him and interrogate by leading questions.

If a witness uses a writing to refresh his memory for the purpose of testifying, either before or while testifying, an adverse party is entitled to have it produced at the hearing, to inspect it, to cross-examine the witness thereof, 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 judge shall examine the writing in camera, excise any portion not so related and order delivery of the remainder to the party entitled thereto. Any potion withheld over objections shall be preserved and made available to the appellate court in the event of an appeal. If a writing is not produced or delivered pursuant to order under this rule, the judge shall make any order justice requires, except that in criminal cases when the prosecution elections not to comply, the order shall be one striking the testimony or, if the judge in his discretion determines that the interests of justice so require, declaring a mistrial.

(a)              Examining Witness Concerning Prior Statement.  In examining a witness concerning a prior statement made by him, whether written or not, the statement need not be shown or its contents disclosed to him at that time, but on request the same shall be shown or disclosed to opposing counsel.

(b)              Extrinsic Evidence of Prior Inconsistent Statement of Witness.  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 him thereon, or the interests of justice otherwise requires.  This provision does not apply to admissions of a party-opponent as defined in Rule 26 (24).

(a)              Calling by Judge.  The judge may, on his own motion or at the suggestion of a party, call witnesses, and all parties are entitled to cross-examine witnesses thus called.

(b)              Interrogation by Judge.  The judge may interrogate witnesses, whether called by himself or a party; provided, however, that in trials before a jury, the judge’s questioning must be cautiously guarded so as not to constitute an implied comment.

(c)              Objections.  Objections to the calling of witnesses by the judge or to interrogation by him may be made at the time or at the next available opportunity when the jury is not present.

At the request of a party the judge shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and he may make the order of his own motion. This rules does not authorize exclusion of a party to the proceedings or a person whose presence is shown by a party to be essential to the presentation of his ca[s]e.

If the witness is not testifying as an expert, his testimony 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 his testimony or the determination of a fact in issue.

If scientific, technical, or other specialized knowledge will assist the tier of fact 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.

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing.  If of a type reasonably relied upon by experts in the particular field in forming opinion or inferences upon the subject, the facts or data need not be admissible in evidence.

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 tier of fact.

The expert may testify in terms of opinion or inference and give his reasons therefore without prior disclosure of the underlying facts or data, unless the judge requires otherwise.  The expert may in any event be required to disclose the underlying facts or data on cross-examination.

(a)              Appointment.  The judge may on his 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 judge may appoint one or more expert witnesses of his own selection to give evidence in the action except that if the parties agree as to the experts to be appointed, he shall appoint only those designated in the agreement.  An expert witness shall not be appointed by the judge unless he consent to act.  A witness so appointed shall be informed of his duties by the judge in writing, a copy of which shall be filed with the clerk, or at a conference in which the parties shall have opportunity to participate.  A witness so appointed shall advise the parties of his findings, if any; his deposition may be taken by any party; and he may be called to testify by the judge or any party.  He shall be subject to cross-examination by each party, including a party calling him as a witness.

(b)              Compensation.  Expert witnesses so appointed are entitled to reasonable compensation in whatever sum the judge may allow.  The compensation thus fixed is payable from funds which may be provided by law in criminal cases and cases involving just compensation under the Fifth Amendment.  In other civil cases the compensation shall be paid by the parties in such proportion and at such time as the judge directs, and thereafter charged in like manner as other costs.

(c)              Disclosure of Appointment.

(1)        Parties’ Experts of Own Selection.  Nothing in this rule limits the party in calling expert witnesses of their own selection.

Hearsay is an out of court statement of a person other than the one testifying offered in evidence in order to prove the truth of the matter asserted in that statement.

Hearsay is not admissible except as provided by these rules.

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

(1)              Present Sense Impression.

(2)              Excited Utterance.

(3)              Then Existing Mental, Emotional, or Physical Condition.

(4)              Statements for Purposes of Medical Diagnosis or Treatment.

(5)              Recorded Recollection.

(6)              Records of Regularly Conducted Activity.

(7)              Absence of Entry in Records of Regularly Conducted Activity.

(8)              Public Records and Reports.

(9)              Records of Vital Statistics.

(10)            Absence of Public Record or Entry.

(11)            Records of Religious Organizations.

(12)            Marriage, Baptismal and Similar Certificates.

(13)            Family Records.

(14)            Records of Documents Affecting an Interest in Property.

(15)            Statements in Documents Affecting an Interest in Property.

(16)            Statements in Ancient Documents.  (20 years older or more).

(17)            Market Reports, Commercial Publications.

(18)            Learned Treaties.

(19)            Reputation Concerning Personal or Family History.

(20)            Reputation Concerning Boundaries or General History.

(21)            Reputation as to Character.

(22)            Judgment of Previous Conviction.

(23)            Judgment as to Personal, Family or General History.

(24)            An Admission of a Party-Opponent.

(25)            Statement Used by a Witness at a Prior Hearing Subject to Cross-Examination.

1. Definition of Unavailability.

   “Unavailability as a witness” includes situations in which the declarant:

   1. Is exempted by ruling of the judge on the ground of privilege from testifying concerning the subject matter of his statement; or
   2. Persists in refusing to testify concerning the subject matter of his statement despite an order of the judge to do so; or
   3. Testifies to a lack of memory of the subject matter to his statement; or
   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 proponent of his statement has been unable to procure his attendance by process or other reasonable means.

   A declarant is not unavailable as a witness if his exemption, refusal, claim of lack of memory, inability, or absence is due to the procurement or wrongdoing of the proponent of his statement for the purpose of preventing the witness from attending or testifying.

2. Hearsay Exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:
   1. Statement of Recent Perception;
   2. Statement Under Belief of Impending Death;
   3. Statement Against Pecuniary or Proprietary Interest;
   4. Statement Not Specifically Covered by Any of the Foregoing Exceptions but Having Comparable Guarantees of Trustworthiness.

Hearsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms to an exception of the hearsay rule provided in these rules.

When a hearsay statement 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 declarant had testified as a witness. Evidence of a statement or conduct by the declarant at any time, inconsistent with his hearsay statement, is not subject to any requirement that he 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 him on the statement as if under cross-examination.

All evidence must be authenticated or identified to the satisfaction of the judge that the evidence is what is claimed to be before it may be admitted.

1. To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by statute.
2. A duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original.
3. The original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible, if:
   1. Originals Lost or Destroyed. All originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith; or
   2. Original Not Obtainable. No original can be obtained by any available judicial process or procedure; or
   3. Original in Possession of Opponent. At a time when an original was under the control of the party against whom offered, he was put on notice, by the pleadings or otherwise, that the contents would be a subject of proof at the hearing, and he does not produce the original at the hearing; or
   4. Collateral Matters. The writing, recording, or photograph is not closely related to a controlling issue.
4. The contents of an official record, or of a document authorized to be recorded or filed and actually recorded or filed, including data compilation in any form, if otherwise admissible, may be proved by copy, certified as correct 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.
5. Contents of writings, recordings, or photographs may be proved by the testimony or deposition of the party against whom offered or by his written admission, without accounting for the non-production of the original.
6. When the admissibility of other evidence of contents of writings, recordings, or photographs under these rules depends upon the fulfillment of a condition of fact, the question whether the condition has been fulfilled is ordinarily for the judge to determine. However, when an issue is raised (1) whether the asserted writing ever existed, or (2) whether another writing, recording, or photograph produced at the trial is the original, or (3) whether other evidence of contents correctly reflects the contents, the issue is for the trier of fact to determine as in the case of other issues of fact.