Chapter 2.05
TRIBAL COURT

Sections:

2.05.010    Establishment of Court and Court of Appeals.

2.05.020    Jurisdiction.

2.05.030    General provisions.

2.05.040    Judges.

2.05.050    Magistrates.

2.05.060    Disqualification of Judges and Magistrates.

2.05.070    Administration of the Court.

2.05.080    Tulalip Tribal Bar – Attorneys and Tribal spokespersons.

2.05.090    Prosecutor.

2.05.100    Probation Officers.

2.05.110    Juries.

2.05.120    General privileges.

2.05.130    Rules of evidence.

2.05.010 Establishment of Court and Court of Appeals.

There is hereby established for the Tulalip Reservation in Washington Courts to be known as the Tulalip Tribal Court, hereafter referred to as the Tribal Court, and a Court of Appeals, hereafter referred to as the Court of Appeals. [Ord. 49 § 1.1, 1-8-2010 (Res. 2010-10)].

2.05.020 Jurisdiction.

(1) Jurisdictional Statement. The jurisdiction of the Tulalip Tribal Courts shall extend, except as limited by Federal statutory or Tulalip Tribal law, to (a) all persons natural and legal of any kind and to (b) all subject matters which, now and in the future, are permitted to be within the jurisdiction of any Tribal Court of a sovereign Indian tribe or nation recognized by the United States of America and to (c) all matters having to do with rights in or encumbrances to lands within or without the Tulalip Indian Reservation held by the United States in trust for the Tulalip Tribes or its members, in restricted fee by the Tulalip Tribes, or lands held in fee by members of the Tulalip Tribes located within the Tulalip Reservation; and tribal territorial jurisdiction shall extend, except as limited by Federal statutory law or Tulalip Tribal law, to all lands and waters, in trust or fee, within the Tulalip Indian Reservation and outside the Tulalip Reservation to lands and waters reserved or obtained by the Tribes and its people for their use by any treaty or law or in any other manner, including, but not limited to, Court decision, purchase, established right of use, or gift.

The Courts of the Tulalip Tribes shall have jurisdiction to hear and decide all causes of action arising from activities within the boundaries of the Consolidated Borough of Quil Ceda Village and shall hear and decide all matters arising under the duly adopted ordinances and regulations of the Consolidated Borough of Quil Ceda Village.

(2) Long-Arm Jurisdiction. It has been and continues to be the intent of the Board that the Tribal Court exercise long-arm jurisdiction to the extent consistent with the due process protections provided by 25 U.S.C. 1302(8) and the limitations set forth in subsection (3) of this section. Unless prohibited by Federal statutory law or beyond the limitations of subsection (3) of this section, a person, including any entity, who is a nonmember of the Tribe residing outside the Tribes’ territorial jurisdiction and/or not present within such territory, submits to the jurisdiction of the Tribal Court by doing any of the following acts:

(a) Transacting any business with the Tulalip Tribes, its entities or instrumentalities, including, but not limited to, constructing or supplying services, tangible items or property transactions, or participation in any transaction or contract occurring in whole or in part within the Reservation or off-Reservation trust lands or restricted lands and conveying any interest in property located within such Tribal territory;

(b) Committing any tortious act within the Reservation or other Tribal territory;

(c) Owning, using, possessing, or having an interest in any property, whether real or personal, situated within Tribal territory;

(d) Contracting to insure any person, property, or risk located within the Reservation or other Tribal territory at the time of contracting;

(e) Living in a marital relationship subject to the Tribes’ jurisdiction, notwithstanding subsequent departure from Tribal territory, so long as one party to the marriage continues to reside within Tribal territory;

(f) Is the parent, custodian, or other person with a legal interest in an Indian child subject to the jurisdiction of the Tribes;

(g) Accepting a privilege from the Tribes, or entering a consensual relationship or commercial transaction with a member, relating to the exercise of Tribal fishing or hunting rights.

Where jurisdiction is based on an act listed in this section, the Court may exercise personal jurisdiction over the person who does such act, directly or by an agent, as to any cause of action under Tribal law arising from such act. If an individual, the Court’s jurisdiction over the person also extends to his or her personal representative.

(3) Tribal Immunity. The Tulalip Tribes, its Board of Directors, its agencies, enterprises, chartered organizations, corporations, or entities of any kind, and its officers, employees, agents, contractors, and attorneys, in the performance of their duties, shall be immune from suit; except where the immunity of the Tribes or its officers and employees is expressly, specifically, and unequivocally waived by and in a Tulalip Tribal or Federal statute, a duly executed contract approved by the Tulalip Board of Directors, or a duly enacted ordinance or resolution of the Tulalip Board of Directors. [Res. 2012-244; Res. 2012-243; Ord. 49 § 1.2, 1-8-2010 (Res. 2010-10)].

2.05.030 General provisions.

(1) Purpose and Construction. The provisions of this title and TTC Title 3 shall be construed in accordance with Tribal custom as well as to achieve the following general goals:

(a) To secure the just, speedy, and inexpensive determination of every civil action;

(b) To provide for the just determination of every criminal proceeding;

(c) To protect the rights of individuals;

(d) To secure simplicity in procedure, fairness in administration, and the elimination of unjustifiable expense and delay; and

(e) To enhance public safety on the Tulalip Reservation.

(2) Applicable Law. The Tulalip Tribal Courts shall apply the laws and ordinances of the Tulalip Tribes, including the custom laws of the Tribes, to all matters coming before the Courts; provided, that where no applicable Tulalip Tribal law, ordinance, or custom law can be found, the Courts may utilize, in the following order, the procedural laws of other Federally recognized Indian tribes, Federal statutes, Federal common law, State common law, and State statutes as guides to decisions of the Courts.

In all actions, and as to all claims or defenses, which concern or are based upon any contract, lease, lease assignment, loan agreement, credit agreement, a promissory note, assignment of rents, assignment of rental income, assignment of income or revenue, mortgage, deed of trust, any other agreement assigning, pledging or encumbering any collateral as security, or any other agreement or instrument, which contains a choice of law clause or provision that specifies or selects the governing law, the Tulalip Tribal Courts shall apply the governing law so specified or selected.

(3) Venue. There is one venue for causes of action arising under the Tulalip Tribal laws and that is Tulalip Tribal Court.

(4) Freedom From Improper Influence. The Court and the Prosecutor’s Office shall be independent from improper influence. No person, including elected or appointed officials or employees of the Tulalip Tribes, shall attempt to improperly influence Court proceedings, or to interfere in any way with a Judge or Prosecutor in the performance of his or her duties.

(5) Rules of Court. The Judges may recommend adoption of rules of the Court regarding the rules of practice and process in Tulalip Tribal Court and for the keeping of dockets, records and proceedings and the regulation of the Court as may be deemed most conducive for the due administration of justice. The rules of the Court shall become effective upon approval by the Board of Directors.

(6) Computation of Time. Whenever a period of time is designated by these rules, it shall mean judicial days, except with reference to computations related to the speedy trial rule.

(7) Principles of Construction. In this code:

(a) Masculine words shall include the feminine and singular words shall include the plural and vice versa, unless another meaning is clearly stated;

(b) Words shall be given their plain meaning and technical words shall be given their usually understood meaning where no other definition is specified;

(c) Whenever a term is defined within a specific section or chapter, that specific definition will control over a general definition unless the Court finds that a contrary meaning is intended;

(d) Provisions shall be construed as a whole to give effect to all its parts (i.e., titles, chapters, sections, etc.) in a logical, consistent manner; and

(e) If any provisions of this code or their application to any person or circumstance is held invalid, the remainder of this code, or the application of the affected provisions to other persons or circumstances, is not affected.

(8) Right to Counsel. Any person appearing as a party in Tribal Court shall have the right to counsel at his or her own expense. “Counsel” includes attorneys and spokespersons. Such counsel shall be of the parties’ own choosing and need not be an attorney or admitted to practice before the bar of any state, but must be members of the Tulalip Tribal Bar. Indigent persons charged with a felony crime shall be appointed an attorney at the Tribes’ expense at all critical stages of a criminal proceeding, up to and through trial.

(9) Application of the Economic Loss Rule in Construction Actions. In relation to construction projects, and in particular multiparty construction projects involving a number and intricacy of contracts that define responsibilities among the parties, the private ordering of risk and contract certainty shall be enforced. Thus, when parties have contracted to protect against potential economic liability, contract principles override any tort principles and as such recovery of economic damages, including but not limited to extra costs or lost profits, for claims related to or arising out of construction projects are not recoverable in tort. As such, with regard to all claims or causes of action related to or arising out of the construction, alteration, repair, design, planning, survey, engineering, etc., of improvements upon real property, damages for economic loss are not recoverable and no cognizable claim shall be recognized based upon any tort theory when unaccompanied by physical property damage or personal injury. Any such claims for economic loss shall be recoverable solely in an action for breach of contract by parties to or beneficiaries of a contract. The bar on the recovery of economic losses under tort theories as set forth in this section is a codification of the common law.

(10) Contractual Notice Provisions Enforced. With regard to all claims or causes of action related to or arising out of the construction, alteration, repair, design, planning, survey, engineering, etc, of improvements upon real property, procedural notice provisions shall be strictly enforced absent either a clear and unequivocal waiver by the benefiting party or a written agreement between the parties to modify the contract. If the applicable contract provides for a waiver of claims, actions, or other relief as a result of a failure to comply with the contractual procedural notice provisions, such waiver shall be given full force and effect. The requirement of strict enforcement of procedural notice provisions as set forth in this section is a codification of the common law.

(11) Attorneys Fees. Attorneys fees are not awardable unless otherwise provided by contract, ordinance, statute, or other law.

(12) Eligibility for Appointed Counsel in Criminal Cases. The Court may appoint counsel to assist any person appearing as a criminal defendant for charges carrying a potential jail sentence. In order to be eligible for such services, the defendant must be determined to be financially qualified based upon standards of indigency established by the Court.

(13) Definitions. Unless otherwise specified in a particular section, the following definitions shall apply to this chapter:

(a) “Contraband” means any property which is unlawful in itself, used for any unlawful purpose, or used in connection with or derived from any unlawful property or transaction.

(b) “Conviction” means a judgment or sentence entered upon a plea of guilty or no contest, or upon a verdict or finding of a defendant’s guilt rendered by a legally constituted jury or by a court of competent jurisdiction authorized to try the case without a jury. Once a conviction has been expunged, it is no longer considered a conviction under Tribal law.

(c) “Counsel” means an attorney or a Tribal spokesperson.

(d) “Defendant” means the party against whom relief or recovery is sought in an action or suit or the accused in a criminal case.

(e) “Elder” means a Tribal member or other individual residing on the Reservation who is:

(i) Sixty-two years of age or older; or

(ii) Determined by the Court to be an elder, pursuant to Tribal custom; or

(iii) At least 45 years of age and unable to protect him/herself from abuse, neglect, or exploitation because of a mental disorder or physical impairment or because of frailties or dependencies brought about by age or disease or alcoholism.

(f) “Firearm” means a weapon or device from which a projectile may be fired by an explosive such as gunpowder. Air guns and other guns fired by the release of compressed gas are firearms. “Firearm” shall also include any explosive, incendiary, or poison gas (i) bomb, (ii) grenade, (iii) rocket having a propellant charge of more than four ounces, (iv) missile having an explosive or incendiary charge of more than one-quarter ounce, (v) mine, or (vi) similar device.

(g) “Indian” means a person who is enrolled in a Federally recognized Indian tribe or who is recognized as a Canadian Indian.

(h) “Law enforcement officer” or “officer” means any person who by virtue of his or her office or employment by the Tribes or by another government is vested by law with a duty to:

(i) Enforce Tribal or Federal civil regulatory laws;

(ii) Maintain public order; or

(iii) Make arrests for offenses while acting within the scope of his or her authority.

(i) “Statement” means:

(i) A writing signed or otherwise adopted or approved by a person;

(ii) A mechanical, electronic, or other recording of a person’s oral communications or a transcript thereof;

(iii) A writing containing a verbatim record as a summary of a person’s oral communication(s); or

(iv) Electronic, computer or wireless communication.

(j) “Subpoena” means a Court document commanding a person to:

(i) Appear at a certain time and place to give testimony upon a certain matter; or

(ii) Produce specific books, records, papers, documents, or other objects as may be necessary and proper; or

(iii) Do both subsections (13)(j)(i) and (ii) of this section. [Res. 2019-111; Res. 2013-102; Res. 2012-445 § 1; Ord. 49 § 1.3, 1-8-2010 (Res. 2010-10)].

2.05.040 Judges.

The Tulalip Tribal Court shall consist of a Chief Judge and such Associate Judges as needed, whose duties shall be regular and permanent, as fixed and determined by the Board of Directors. No person shall exercise the judicial authority of the Tulalip Tribes in any Tulalip Tribal Court, Employment Court, Gaming Court, or other Court under this code or any other Tulalip ordinance or regulation unless and until such person has been appointed by the Board of Directors in accordance with this chapter. Judges shall receive such compensation as is set by resolution of the Board.

(1) Eligibility. To be eligible to serve as a Judge of the Tribal Court, a person must:

(a) Be over 25 years of age;

(b) Never have been convicted or found guilty of a felony in any Federal or State Court or of a Class E offense under Tulalip Tribal law;

(c) Within the previous five years, not have been convicted of a misdemeanor in any Tribal, Federal, or State Court;

(d) Be of high moral character and never have been convicted of any offense involving moral turpitude;

(e) Be either a Judge from any Federally recognized Indian tribe, licensed to practice before the Washington State Bar Association, or any other qualified person appointed by the Tribal Board of Directors, or possess a J.D. from an accredited law school; and

(f) Be a member in good standing of the Tulalip Bar.

To be eligible to serve as Chief Judge of the Tribal Court, a person must also possess administrative experience in addition to the requirements included in this section.

(2) Appointment – Trial Court. Judges shall be appointed by the Tulalip Board of Directors, subject to acceptance of the position upon signing the oath of office. Judges who have not previously served the Tulalip Tribes as an appointed Judge shall initially be appointed to serve a one-year term. Thereafter, the Board may appoint the Judge to a full term of four years unless sooner removed for cause or by resignation, but shall be eligible for reappointment. The Board of Directors may appoint full-time or part-time Judges. The terms for part-time Judges shall be determined by the Board. The Board of Directors shall designate a Judge to hold the office of Chief Judge every two years and assign authority over Court administrative matters to that office. Judges pro tem may also be appointed, as necessary.

(3) Appointment – Appellate Court.

(a) Justices of the Court of Appeals. Justices of the Court of Appeals shall meet the same eligibility requirements for Judges, as set forth by subsection (1) of this section. Justices of the Tulalip Court of Appeals shall be appointed, subject to acceptance of the position upon signing the oath of office.

Justices shall serve four-year terms from the date of appointment, unless sooner removed for cause or by resignation. The Board of Directors shall appoint at least three Justices, including a Chief Justice of the Court of Appeals.

(b) Chief Justice. The Board of Directors shall designate a Justice to hold the office of Chief Justice every two years and assign authority over Court administrative matters, including the assignment of Judges over felony criminal matters. To be eligible to serve as Chief Justice of the Tribal Court, a person must also possess administrative experience.

(c) Duties of Chief Justice. For each matter properly placed before the Court of Appeals, a panel of three Justices shall be selected by the Chief Justice to hear and decide the issue or issues before the Court of Appeals. The Chief Justice shall designate a Presiding Justice for each panel and shall serve as Presiding Justice for each panel on which he or she sits. A single regular Justice of the Court of Appeals may act as a full panel where the Board of Directors so provides by rule.

(4) Powers and Duties. Judges shall have the authority to act in all matters within the jurisdiction of the Tulalip Tribal Court. Justices shall have authority to act in all matters within the jurisdiction of the Court of Appeals. No Judge or Justice shall be qualified to act as such in any case where the Judge has any direct interest or wherein any relative by marriage or blood, in the first or second degrees, is a party. Pro Tem Judges shall sit in the absence of the Associate Judges and the Chief Judge. Pro Tem Judges should not hear substantive matters unless they are appointed as a result of an affidavit of prejudice or recusal of the Associate judges or the Chief Judge, or with agreement by the parties. Prior to appointment of a Pro Tem to hear a case due to recusal or affidavit of prejudice, the Chief Judge shall determine whether another Associate Judge or the Chief Judge can hear the matter prior to appointment of a Pro Tem Judge.

(5) Removal. During tenure in office, Judges or Justices may be suspended, dismissed, or removed for cause by the Board of Directors. Copies of a written statement setting forth the facts and the reasons for such proposed action must be delivered to the Judge and to members of the Board of Directors at least 10 days before the meeting of the Board of Directors before which the Judge at issue is to appear. A public or private hearing shall then be held by the Board of Directors wherein the accused Judge shall be given an adequate opportunity to answer any and all charges. The decision of the Board of Directors shall be final. Causes judged sufficient for removal shall include, by way of example and not limitation:

(a) Any act or omission which would have resulted in ineligibility for appointment;

(b) Illegal use of intoxicants or drugs;

(c) Conduct involving moral turpitude;

(d) Conviction of any offense other than minor traffic violations;

(e) Use of official position for personal gain;

(f) Desertion of office;

(g) Negligence in the performance of duties; or

(h) Conduct determined by the Tulalip Court of Appeals to be violative of the American Bar Association Code of Judicial Conduct, which code is incorporated herein by reference as though set forth in full.

(6) Felony Crimes. To be eligible to preside over all stages of a felony criminal case, the Judge must: (a) have sufficient legal training to preside over criminal proceedings; and (b) be licensed as an attorney in the State of Washington or other state. [Res. 2019-159; Res. 2015-337; Res. 2012-445 §§ 2, 3; Ord. 49 § 1.4, 1-8-2010 (Res. 2010-10)].

2.05.050 Magistrates.

(1) Appointment – Magistrates. The Board of Directors may appoint Magistrates for the Tulalip Tribal Court. The qualifications, eligibility, compensation, term, oath of office, and conditions of removal shall be the same as that for Tribal Judges.

(2) Powers and Duties. Magistrates shall have authority, concurrent with the Tribal Court and the Judges thereof, in the following particulars only:

(a) To grant and enter defaults and enter judgment thereon;

(b) To issue ex parte temporary restraining orders and temporary injunctions, and to fix and approve bonds hereon;

(c) To hear and determine all proceedings supplemental to execution;

(d) To grant adjournments, administer oaths, preserve order, compel the attendance of witnesses, and to punish by contempt for the refusal to obey or neglect lawful orders;

(e) To hold arraignments, accept pleas, and sentence in the instance of a guilty plea; and

(f) To issue warrants and subpoenas.

Whenever this title and TTC Title 3 set forth procedures and substance governing any of the above powers, authority, and jurisdiction of the Tribal Judges and Tribal Court, the same shall apply equally to the Magistrate; provided, however, that it shall not serve to increase the power, authority, and/or jurisdiction of the Magistrate. [Ord. 49 § 1.5, 1-8-2010 (Res. 2010-10)].

2.05.060 Disqualification of Judges and Magistrates.

(1) As a Matter of Right. A defendant, or other party, to any legal proceedings may accomplish one automatic change of assignment of the case from one Judge or Magistrate to another upon filing an affidavit of prejudice with the Court, stating that the Judge assigned to the case is prejudiced against their case. Such affidavit shall be in written form and must be filed with the Court within 10 days of assignment or reassignment of the trial Judge or before any discretionary ruling, whichever comes first. Rulings made at arraignment, the first appearance, or the initial bail hearing shall not be considered discretionary rulings for purposes of this rule.

(2) For Cause. A defendant, or other party, to any legal proceedings may accomplish a second change of assignment of the case from one Judge or Magistrate to another upon filing an affidavit of prejudice with the Court. A Judge shall be disqualified for cause if an affidavit alleging interest or prejudice that would prevent a fair and impartial trial is ruled to be founded by a preponderance of the evidence after review by the Chief Justice of the Tulalip Court of Appeals. If an affidavit alleging interest or prejudice that would prevent a fair and impartial trial is filed against the Chief Justice of the Tulalip Court of Appeals, the Chief Justice shall recuse him or herself from the matter. Such affidavit shall be in written form and must be filed by the party alleging such interest or prejudice within 10 days of discovery of the facts supporting the affidavit, unless good cause is shown for later filing.

(3) Recusal. A Judge may recuse himself or herself upon grounds that he or she deems sufficient. [Ord. 49 § 1.6, 1-8-2010 (Res. 2010-10)].

2.05.070 Administration of the Court.

The administrative functions of the Tulalip Tribal Court shall be performed by the Office of the Court Director or designee. There shall be a Court Director who shall be responsible for the management of the office and supervision of Court employees, including, but not limited to, Court Clerks and Probation Officers. The Court Director shall coordinate administrative functions with the Chief Judge for the effective and efficient administration of justice. The Court Director shall be a regular Tribal employee within the Tribal governmental structure.

(1) Duties and Responsibilities of the Clerk. The Clerk shall render assistance to the Court, Tribal departments, and the public. It shall also be the duty of the Clerk to receive and process Court documents; provide forms; attend and assist in Court proceedings; record all Court proceedings; enter orders and judgments; receive and disburse all fees, fines, and charges; and perform such other duties as the Court Director shall designate. All records, forms, documents, orders, and judgments related to criminal and civil proceedings shall be maintained by the Clerk. Before entering upon these duties, the Clerk shall be covered by the blanket bond provided for all Tribal employees.

(a) Appeals. The Clerk shall deliver a copy of the case record to the Administrator of the Court of Appeals no later than 15 days after receiving the Notice of Appeal.

(i) If an intertribal entity such as the Northwest Intertribal Court System is administering the Court of Appeals on behalf of the Tribes, the Clerk shall immediately forward a copy of each Notice of Appeal to the Administrator of the Court of Appeals. If the Tribes is directly administering the Court of Appeals, the Clerk shall immediately forward a copy of each Notice of Appeal to the Presiding Justice.

(ii) No longer than 10 days after the Notice of Appeal is delivered to the Administrator of the Court of Appeals or to the Presiding Justice as provided above, the Clerk shall deliver a copy of the record to the Administrator of the Court of Appeals, or, if the Tribes is directly administering the Court of Appeals, to each of the three Justices selected to hear the appeal.

(b) Court Hearings – Minute Entries. The Tulalip Tribal Court Specialist or designee shall be present to take concurrent minutes, in a format as required by Court Rule, for civil hearings which become part of the official Court record/file. [Res. 2021-282; Res. 2014-485; Res. 2013-102; Ord. 49 § 1.7, 1-8-2010 (Res. 2010-10)].

2.05.080 Tulalip Tribal Bar – Attorneys and Tribal spokespersons.

(1) Jurisdiction. Any attorney or spokesperson admitted, or permitted by rule, to practice law in the Tulalip Tribal Court, and any attorney or spokesperson specially admitted by this Court for a particular case, is subject to the rules of this chapter. Jurisdiction exists regardless of the attorney’s or spokesperson’s residency. Attorneys and spokespersons are considered counsel.

(2) Tulalip Tribal Court Bar. Any person practicing as counsel in Tulalip Tribal Court must be a member in good standing of the Tulalip Tribal Court Bar. In order to qualify as a member in good standing, all applicants must:

(a) Schedule and pass the Tulalip Tribal Bar Exam;

(b) Sign and take the Attorney/Spokesperson’s Oath of Admission;

(c) Pay the Bar application fee and annual admission fee as may be established, unless such fee is waived by the Tulalip Tribal Court;

(d) For attorneys only, certify they are a member in good standing in any other jurisdiction in which the applicant is licensed by a state licensing authority; and

(e) Eligibility.

(i) Only attorneys in good standing with the state licensing authority are eligible for the “attorney” designation.

(ii) Nonattorneys: Only Tulalip Tribal members, their children or spouses, Tulalip governmental employees, including Quil Ceda Municipality, Tulalip Gaming Organization, and Tribal enterprises, and student externs with the University of Washington, Seattle University or other approved accredited university are eligible for the “spokesperson” designation.

(iii) The Tulalip Tribes does not recognize Limited License Legal Technicians licensed through the state of Washington, or those who may have taken an “executive juris doctorate (EJD)” or “Master of Legal Studies (LLM)” as qualifying as attorneys or spokespersons unless they meet the requirements herein. The Tulalip Tribes may not admit a person who has earned a Juris Doctorate (JD), or any other degree, license, or certification as an attorney or spokesperson unless they meet all requirements of the Tulalip Tribal Code.

(3.1) Attorney Oath of Admission.

I [insert name of attorney] do solemnly swear:

(i) I have read the Tulalip Indian Tribes’ Constitution and laws and am familiar with their contents;

(iii) I will support the Constitution of the Tulalip Indian Tribes in all respects;

(iii) I will abide by the rules established by the Board of Directors of the Tulalip Tribes and the Tribal Court;

(iv) I will at all times maintain the respect due to the Tribal Court and its officers;

(v) I will not counsel or speak for any suit or proceeding which shall appear to me to be unjust, or any defense except such as I believe to be honestly debatable under the laws of the Tulalip Indian Tribes;

(v) I will employ such means only as are consistent with truth and honor and will never seek to mislead a judge or jury by any false statements; and

(vi) I will abstain from all offensive conduct in the Tribal Court.

(3.2) Spokesperson Oath of Admission.

I [insert name of spokesperson] do solemnly swear:

(i) I have read the Tulalip Indian Tribes’ Constitution and laws and am familiar with their contents;

(ii) I will support the Constitution of the Tulalip Indian Tribes in all respects;

(iii) I will abide by the rules established by the Board of Directors of the Tulalip Tribes and the Tulalip Tribal Court;

(iv) I will at all times maintain the respect due to the Tribal Court and its officers;

(v) I will not counsel or speak for any suit or proceeding which shall appear to me to be unjust, or any defense except such as I believe to be honestly debatable under the laws of the Tulalip Indian Tribes;

(vi) I will employ such means only as are consistent with truth and honor and will never seek to mislead a judge or jury by any false statements; and

(vii) I will abstain from all offensive conduct in the Tribal Court.

(viii) I will not hold myself out as an “attorney” to anyone associated with this court or Tribes.

(4.1) Tulalip Tribal Court Bar Attorney Roster. The Court Clerk of the Tulalip Tribal Court will maintain a roster and the signed oaths of all attorneys admitted to practice before the Court.

(4.2) Tulalip Tribal Court Spokesperson Roster. The Court Clerk of the Tulalip Tribal Court will maintain a separate roster for spokespersons and the signed oaths of all spokespersons admitted to practice before the Court.

(5) Disciplinary Acton Taken Against an Attorney or Spokesperson.

(a) Tulalip Tribal Court. The Tulalip Tribal Court has (i) the exclusive responsibility to administer attorney and spokesperson discipline, (ii) the inherent power to maintain appropriate standards of professional conduct, and (iii) the authority to dispose of individual cases of attorney and spokesperson discipline. Persons carrying out the functions set forth in the following rules act under the Court’s authority.

(b) Definitions. Unless the context clearly indicates otherwise, terms used in these rules have the following meanings:

(i) “Disciplinary action” means sanctions as defined within this chapter.

(ii) “Final” means no review has been sought in a timely fashion or all appeals have been concluded.

(iii) “Panel” means a Hearing Panel.

(iv) “Party” means the person aggrieved or directly affected by the attorney or spokesperson’s behavior or action.

(v) “Respondent” means an attorney or spokesperson against whom a grievance is filed or an attorney or spokesperson investigated by the investigative officer.

(vi) “May” means “has discretion to,” “has the right to,” or “is permitted to.”

(vii) “Must” means “is required to.”

(viii) “Should” means recommended but not required.

(c) Grounds for Sanctions and/or Disbarment of Attorneys or Spokespersons. Any attorney or spokesperson admitted to the Tulalip Tribal Court Bar may be subject to disciplinary sanctions, including disbarment, for any of the following reasons arising after his or her admission to practice:

(i) Conviction of a felony or misdemeanor involving moral turpitude, in which case the record of conviction shall be conclusive evidence;

(ii) Willful disobedience or violation of a Court order;

(ii) Violation of any provision of the Attorney or the Spokesperson’s Oath of Admission, or his or her duties as an attorney or spokesperson;

(iv) For the commission of any act involving moral turpitude, dishonesty, or corruption;

(v) Suspension or other disciplinary action taken against the attorney or spokesperson by an authority of another jurisdiction, except that disbarment, or resignation during pendency or any disciplinary investigation, by competent authority in any other tribe, state, federal or foreign jursdiction shall subject the attorney or spokesperson to automatic disbarment from the Tulalip Bar until such time as the person has been reinstated in such other jurisdiction in which the person has been disbarred;

(vi) Disbarment could result from proceedings against a person for practicing without a license in any jurisdiction; or

(vii) Applicant may be denied admission if after the background check it is discovered that the applicant misrepresented his or her status as an attorney and/or is practicing without a license in any jurisdiction.

(d) Grounds for Sanctions and/or Disbarment of Attorneys. Any attorney admitted to the Tulalip Tribal Court Bar may be subject to disciplinary sanctions, including disbarment, for any of the reasons listed in subsection (5)(c) of this section.

(e) Tulalip Tribal Court Bar Sanctions and Disbarment. Upon the request of an individual or the Tribe as a friend of the Court, or upon its own, the Tulalip Tribal Court may order an investigation of any allegations of misconduct by a member of the Tulalip Tribal Court Bar. The Court Director shall appoint an investigative officer to review the allegations. If the officer determines there is no merit in the allegations, he or she shall file a written report with the Court Director suggesting that no further action be taken, including reasons for such decision. The Court Director, in consultation with the Chief Judge, shall either adopt or reject the decision. If the recommendation is adopted, then notice shall be sent to the attorney or spokesperson and the complaining witness within 10 days and the matter shall be concluded.

If the investigative officer does find merit to the allegations, he or she shall file a written complaint with the Court Director against such member. The Court Director will then appoint a Hearing Officer in consultation with the Chief Judge, who will then review the complaint, subpoena material or witnesses, provide a scheduling order, and set a hearing as necessary.

(f) Investigative Officer.

(i) Function. An investigative officer, appointed by the Court Director, investigates allegations of misconduct by a member of the Tulalip Tribal Court Bar, prosecutes meritorious allegations before the Hearing Officer, and performs other functions as provided under these rules.

(ii) Appointment. The Court Director shall appoint an investigative officer from the list of Hearing Officers.

(iii) Term of Office. The investigative officer shall be appointed to a one-year term, to be extended at the discretion of the Chief Judge.

(g) Hearing Officer.

(i) Function. A Hearing Officer conducts the hearing and performs other functions as provided under these rules.

(ii) Qualifications. A Hearing Officer must be an active member of the Tulalip Tribal Court Bar and have no record of discipline.

(iii) Appointment. The Court Director, in consultation with the Chief Judge, shall appoint a Hearing Officer. The list of Hearing Officers and potential panel members should include as many attorneys or spokespersons as the Chief Judge considers necessary to carry out the provisions of these rules effectively and efficiently.

(iv) Terms of Appointment. Appointment to the Hearing Officer shall be appointed to a one-year term, to be extended at the discretion of the Chief Judge.

(v) Training. Hearing Officers shall comply with training requirements established by the Court.

(h) Removal of Appointees. The Chief Judge may remove the Hearing Officer whenever that Hearing Officer appears unwilling or unable to perform his or her duties, or for any other good cause. The Court Director has the authority to fill any resulting vacancy.

(i) Compensation and Expenses. The Tulalip Tribal Court shall determine what compensation, if any, is to be provided to the Hearing Officer.

(j) Right to Representation. An attorney or spokesperson may be represented by counsel during any stage of an investigation or hearing under these rules at their own expense.

(k) Attorney-Client Privilege. An attorney or spokesperson may not assert the attorney-client privilege or other prohibitions on revealing client confidences or secrets as a basis for refusing to provide information during the course of an investigation, but information obtained during an investigation involving client confidences or secrets must be kept confidential to the extent possible under these rules unless the client otherwise consents. Nothing in these rules waives or requires waiver of any attorney’s or spokesperson’s own privilege or other protection as a client against the disclosure of confidences or secrets.

(l) Commencement of Proceedings.

(i) Formal Complaint.

(A) Filing. After a matter is ordered to hearing, the investigative officer files a formal complaint and summons with the Court Clerk.

(B) Service. After the formal complaint is filed, it must be personally served on the respondent attorney or spokesperson with the summons notifying him or her that they have 20 days to respond.

(C) Content. The formal complaint must state the respondent’s acts or omissions in sufficient detail to inform the respondent of the nature of the allegations of misconduct. The investigative officer must sign the formal complaint, under penalty of perjury.

(D) Prior Discipline. Prior disciplinary action against the respondent should be included in a supporting declaration if the respondent is charged with conduct demonstrating unfitness to practice law.

(ii) Filing Commences Proceedings. A disciplinary proceeding commences when the formal complaint is filed.

(iii) Joinder. The investigative officer may join charges against two or more respondents, or two or more charges against the same respondent, in one formal complaint. The Hearing Officer or Hearing Panel may in its discretion consolidate for hearing two or more charges against the same respondent, or two or more respondents in one formal complaint. Two respondents may be joined or consolidated only if the respondents are alleged to have committed misconduct in the same act or transaction, or in the same series of acts or transactions.

(m) Answer.

(i) Time to Answer. Within 20 days of service of the formal complaint and notice to answer, the respondent attorney or spokesperson must file and serve an answer with the Court Clerk and the investigative officer. Failure to file an answer as required may be grounds for discipline and for an order of default.

(ii) Content. The answer must contain:

(A) A specific denial or admission of each fact or claim asserted in the formal complaint;

(B) A statement of any matter or facts constituting a defense, affirmative defense, or justification, in ordinary and concise language without repetition; and

(C) An address at which all further pleadings, notices, and other documents in the proceeding may be served on the respondent.

(iii) Filing and Service. The answer must be filed and served pursuant to this title and Chapter 3.70 TTC on the investigative officer and the Court Clerk.

(n) Hearing. If a complaint is filed, a Hearing Officer shall conduct an open hearing to determine whether the findings of alleged misconduct are well founded. All interested parties shall be notified at least 20 days in advance of the hearing, and shall be entitled to present evidence and confront witnesses.

Following the hearing, the Hearing Officer shall make a finding by a preponderance of evidence of whether a violation has been established. The officer will then reconvene to determine appropriate sanctions allowing both sides to make recommendations. The panel will memorialize the sanction(s) in a written opinion. Sanctions may include censure, reprimand, suspension, or disbarment.

Alternatively, the respondent may admit to the violation and agree to appropriate sanctions, which can be presented to the officer or panel. The officer may accept or reject the agreement within its discretion.

(o) Appeal.

(i) Respondent’s Right to Appeal. The respondent attorney or spokesperson has the right to appeal a decision to the Chief Judge recommending suspension or disbarment. There is no other right of appeal.

(ii) Notice of Appeal. Only the respondent attorney or spokesperson has the right to appeal. To appeal he or she must file a Notice of Appeal with the Court Clerk within 20 days of service of the panel’s decision on the respondent. The Chief Judge will review the appeal based on the record before the Hearing Panel. Evidence not presented to the panel cannot be considered by the Chief Judge.

(iii) Action by Chief Judge. On appeal, the Chief Judge may adopt, modify, or reverse the findings, conclusions, or recommendation of the Hearing Officer. The Chief Judge may also direct that the Hearing Officer hold an additional hearing on any issue, on its own motion, or on either party’s request.

(iv) Oral Argument. The officer may hear oral argument if requested by either party.

(v) Order or Opinion. The Chief Judge must issue a written order or opinion. If the Chief Judge amends, modifies, or reverses any finding, conclusion, or recommendation of the officer, the Chief Judge must state the reasons for its decision in a written order or opinion.

(vi) Decision of Chief Judge Is Final. A respondent may ask the Chief Judge to review an adverse determination by the Hearing Officer, including review of the reasonableness of a proposed periodic payment plan for restitution. The Chief Judge’s ruling is not subject to further review.

(p) Remedies – Restitution, Censure, Reprimand, Suspension and Disbarment.

(i) Restitution May Be Required. A respondent attorney or spokesperson that has been sanctioned or admonished under this rule may be ordered to make restitution to persons financially injured by the respondent’s conduct.

(A) Payment of Restitution.

(I) A respondent ordered to make restitution must do so within 30 days of the date the order becomes final. The restitution order may include a periodic payment plan.

(II) The Hearing Officer may enter into an agreement with a respondent for a reasonable periodic payment plan if:

1. The respondent demonstrates in writing a present inability to pay restitution; and

2. There is no objection from the person(s) owed restitution.

(B) Failure to Comply. A respondent’s failure to make restitution when ordered to do so or to comply with the terms of a periodic payment plan may be grounds for further discipline.

(ii) Censure. The respondent attorney or spokesperson may be censured.

(iii) Reprimand. The respondent attorney or spokesperson may be reprimanded with a course of action.

(iv) Suspension. The respondent attorney or spokesperson may be suspended and/or placed on probation and ordered to engage in remedial services for up to two years.

(v) Disbarment. The respondent attorney or spokesperson may be disbarred if their conduct rises to such a level.

(q) Probation.

(i) Conditions of Probation. A respondent attorney or spokesperson that has been sanctioned or admonished under this rule may be placed on probation for a fixed period of two years or less.

(A) Conditions of probation may include, but are not limited to, requiring:

(I) Alcohol or drug treatment;

(II) Medical care;

(III) Psychological or psychiatric care;

(IV) Professional office practice or management counseling;

(V) Other reasonable services in light of the complaint; or

(VI) Periodic audits or reports.

(B) The Hearing Officer may designate a suitable person to supervise the probation. Cooperation with a person so appointed is a condition of the probation.

(ii) Failure to Comply. Failure to comply with a condition of probation may be grounds for discipline and any sanction imposed must take into account the misconduct leading to the probation. [Res. 2021-283; Res. 2010-207; Ord. 49 § 1.8, 1-8-2010 (Res. 2010-10)].

2.05.090 Prosecutor.

There is hereby created a Prosecutor’s Office of the Tulalip Tribes within the Office of Reservation Attorney.

(1) Eligibility. To be eligible to serve as a Prosecutor in the Tribal Court, a person must:

(a) Be over 25 years of age;

(b) Never have been convicted or found guilty of a felony in any Federal or State Court, or of a Class E offense as defined by Tulalip Tribal law;

(c) Within the previous five years, not have been convicted of a misdemeanor in any Tribal, Federal, or State Court;

(d) Be of high moral character and never have been convicted of any offense involving moral turpitude;

(e) A member in good standing of the Tulalip Bar; and

(f) Be licensed as an attorney in the State of Washington in good standing.

(2) Appointment. The Tulalip Board of Directors shall appoint the Prosecutor and any Assistant Prosecutors. The Tulalip Tribes Prosecutor shall receive such compensation as is set by resolution of the Board of Directors.

(3) Powers and Duties.

(a) The Tulalip Tribes Prosecutor is authorized to represent the Tribes in the prosecution of all matters arising under Tulalip Tribal or Federal law. The Prosecutor shall make all final decisions on the submission of complaints or other legal action to be taken in the prosecution of cases.

(b) The Prosecutor prepares and tries cases primarily in Tribal Court; may prepare annual budgets; maintains contact with outside law enforcement agencies and prosecuting authorities as necessary for the administration of justice; and undertakes other responsibilities as assigned by the Tulalip Board of Directors or their designee.

(c) The Prosecutor shall be primarily responsible for providing the Tulalip Tribal Police Department with legal advice on daily law enforcement matters, cases and issues. [Ord. 49 § 1.9, 1-8-2010 (Res. 2010-10)].

2.05.100 Probation Officers.

(1) Establishment of Tribal Probation Office. There is established a Tribal Probation Office (hereafter “Probation Office”), the purposes of which include the protection of the Reservation community by providing for the acceptance of custody and supervision and rehabilitation of offenders placed on probation by the Tribal Court. The Probation Office shall be a division of the Tribal Court. The Office of Tribal Probation shall consist of at least one Probation Officer and such other personnel as may be deemed necessary by the Tribal Court and approved by the Board of Directors.

(2) Purpose and Policy. The Board of Directors finds and declares that probation is a desirable disposition of appropriate criminal cases because:

(a) It provides a framework by which the Tribes can supervise positive rehabilitative measures imposed on an offender by the Court;

(b) The offender remains under the purview of the Court while engaging in the educational, therapeutic, and community restorative pursuits that add up to a successful rehabilitation;

(c) It affirmatively promotes the rehabilitation of the offender by continuing community contacts;

(d) It provides a means to hold the offender accountable in a less restrictive setting than incarceration; and

(e) It minimizes the impact of the conviction upon innocent dependents of the offender.

(3) Law Enforcement Certification and Authority.

(a) Certification. The Chief Judge shall promulgate by court rule minimum training standards and qualifications which a Probation Officer must meet.

(b) Powers. A Probation Officer, in his or her supervision of an offender, possesses all the authority of a Tribal law enforcement officer, including, and without limitation, the authority:

(i) To search the breath, hair, and urine of a supervised offender for narcotics, alcohol, or nonprescribed drugs;

(ii) To request a Judge of the Tribal Court to issue a warrant for arrest of the supervised offender, or for search and seizure of the offender’s person or property pursuant to TTC 2.25.030, or for such orders as are necessary to carry out the functions of the Probation Office;

(iii) To arrest on probable cause a supervised offender without a warrant for violation of a condition of probation;

(iv) To search a supervised offender’s person, effects, vehicle, and residence without a warrant, probable cause, or reasonable suspicion at any time of day or night if the supervised offender has been notified in writing that such searches are a condition of probation;

(v) To cause a supervised offender to be detained in the custody of a jail or prison facility for transfer to Tulalip Tribal Court on statement of probable cause that the supervised offender violated a condition of probation, or on a warrant. The Tulalip Police Department may take custody of a supervised offender for transport to a jail or prison facility upon receiving a statement of probable cause by a Probation Officer that the supervised offender violated a condition of probation.

(c) Use of Force. TTC 2.45.045 shall apply to Probation Officers.

(4) Duties and Responsibilities. Probation Officers shall carry out the following duties:

(a) Undertake investigations and make reports, including pre-sentence investigations and reports, which may include alternative sentencing recommendations requested by the Tribal Court;

(b) Supervise a probationer when requested to do so by the Tribal Court, and in accord with the conditions set by the Court;

(c) Assure that a copy of the conditions of probation is signed by the supervised offender and given to him or her;

(d) Regularly advise and consult with the supervised offender to encourage him or her to improve his or her condition;

(e) Administer drug and alcohol tests and keep records to report on the progress of persons supervised or under the jurisdiction of the Court;

(f) Identify and, where necessary, mobilize Tribal or community programs to which supervised offenders may be assigned for evaluation, treatment, or rehabilitation, or for the purpose of performing community services;

(g) Monitor the execution and progress of any Court-ordered assignment;

(h) Cooperate with all agencies, including Tribal, public, and private, that are concerned with the treatment or welfare of persons on probation; and

(i) Perform such other duties as assigned by the Chief Judge of the Tribal Court.

(5) Community Custody for Felonies, Sex Offenses, Serious Misdemeanors, and Crimes of Addiction. The Board of Directors finds and declares that the work of rehabilitative supervision in a community setting for felony offenders and for certain serious misdemeanor offenses requires a supervisory program more akin to parole. The Board of Directors further finds and declares that addiction and attendant crimes disproportionately affect the Tulalip community and that active supervision of recovering addicts on probation is necessary to promote their healing and reintegration into a safe and sober community.

(a) Generally. The Court may develop standard conditions of probation which delegate to the Probation Department reasonable restrictions on the probationer when related to another Court-ordered condition, to include:

(i) Restrictions on patronizing venues that sell or serve drugs or alcohol;

(ii) Restrictions on travel;

(iii) Restrictions on living arrangements;

(iv) Requiring job applications, maintaining employment and/or education;

(b) Felonies, Sex Offenses, and Serious Misdemeanors. A Probation Officer may petition the Court to impose additional conditions on a supervised offender convicted of a felony offense, sex offense, or misdemeanor crime that is classified as a felony in Federal or State law, to include:

(i) Search of a supervised offender’s cell phone without a warrant, probable cause, or reasonable suspicion;

(ii) Electronic monitoring; and

(iii) Registration of social media accounts, usernames, and passwords.

(6) Interagency Cooperation. The Court and Police Department shall develop and keep current an interdepartmental MOU on the topics of evidence storage, contraband storage and destruction, radio communications, prisoner transport, and any other areas of overlapping operation necessary to fully and effectively carry forward the missions of each department in a safe and efficient way by coordinating action and avoiding system duplication.

(7) Transfer of Supervision. The Court may enter into agreements with other Tribes, the Federal government, and/or states to allow such other jurisdictions to supervise persons under the supervision of the Tulalip Probation Office who travel or relocate off the Reservation, and to allow supervised offenders from other jurisdictions to be supervised by Tulalip. [Res. 2022-363; Ord. 49 § 1.10, 1-8-2010 (Res. 2010-10)].

2.05.110 Juries.

(1) Jury Pool. A list of eligible jurors shall be prepared by the Court. The eligible juror list shall be updated from time to time, but no less than once in each year. The Court shall provide for the selection of names of persons eligible for service as jurors. Jurors shall be 18 years of age or older and, notwithstanding any other law of the Tulalip Tribes or any of its agencies, shall be chosen from the following classes of persons:

(a) Tribal members living on or near the Tulalip Indian Reservation;

(b) Residents of the Tulalip Indian Reservation; and

(c) Employees of the Tulalip Tribes or any of its enterprises, agencies, subdivisions, or instrumentalities who have been employed by the Tribes for at least one continuous year prior to being called as a juror.

(2) Formation of Jury. Juries will be comprised of six jurors. A person may be excused from serving on a jury upon good cause shown under oath to a Judge. Jurors whose employers provide for compensated leave for jury service shall not be excused by the Court because of work-related responsibilities, except under extraordinary circumstances. The Judge shall consider the needs of the Court to maintain an adequate jury pool before allowing jurors to be excused for employment reasons. Members of the Board of Directors shall be exempt from serving on juries during their terms of office.

(a) Random Selection. The Clerk of the Court will randomly select a minimum of 25 names from the jury pool.

(b) Juror Summons. The Court shall issue summons and thereby notify persons selected for jury service. Persons selected for jury service shall be summoned by mail or personal service. Persons who do not appear after proper notice of jury service shall be subject to contempt of Court.

(3) Selection (Voir Dire). After summoning jurors and before trial, or at a time designated by the Court, the Clerk shall notify the Court and counsel of the names of the members of the jury pool appearing for selection. In selecting a jury from among the panel members, the initial questioning of the jurors shall be conducted by the Judge in order to determine whether each prospective juror is capable of being fair and impartial. Questions to be asked by the Court include whether a panel member:

(a) Is directly related to any person involved in the action, including, but not limited to, the parties, counsel, alleged victims, or any prospective witness;

(b) Is or has been involved in any business, financial, professional, or personal relationship with a party or alleged victim;

(c) Has had any previous involvement in a civil or criminal lawsuit or dispute with a party or alleged victim;

(d) Has a financial or personal interest in the outcome of the action before the Court; or

(e) Has formed an opinion as to the defendant’s guilt.

When the Court determines that a juror is prejudiced or cannot act impartially, the juror shall be excused. After questioning by the Judge, both parties may question the jurors using the struck jury system. Either party may question the jurors concerning the nature of the action, including burden of proof in criminal cases and the presumption of innocence. The Judge may limit examination of jurors when the Judge believes such examination to be improper or unacceptably time consuming.

(4) Challenges. All challenges must be made to the Tribal Court before the jury is empanelled and sworn. When a potential challenge for cause is discovered after the jury is sworn, and before the introduction of any evidence, the Court may allow a challenge for cause to be made.

(a) For Cause. Each party shall have unlimited challenges for cause. Each challenge must be tried and determined by the Court at the time the challenge is made.

(b) Peremptory. Each party shall have two peremptory challenges. In criminal cases where defendants are tried together, the prosecution and defense shall each be entitled to one additional peremptory challenge. In civil cases involving multiple parties, additional challenges may be allowed at the discretion of the Court.

(5) Motion to Discharge.

(a) Venire or Jury. Any objection to the manner in which the venire or jury has been selected or drawn shall be raised by motion to discharge.

(b) Court’s Ruling. It shall be the duty of the Court to conduct a hearing on any motion to discharge. The burden of proof shall be on the movant. If the Court finds that the venire was improperly selected or drawn, the Court shall order a new venire. If the Court finds that the jury was improperly selected or drawn, the Court shall order the jury discharged and the selection or drawing of a new jury.

(6) Conflicts of Interest. No person shall be qualified to sit on a jury panel in the Tribal Court in any case where that person has a direct interest or wherein any relative, by marriage or blood, in the first or second degree is a party; nor shall any party be required to use a peremptory challenge to remove a person not qualified to serve as a juror under this section. This section shall not be construed as the sole cause upon which a juror may be challenged for cause, and other conflicts of interest shall be considered by the Judge.

(7) Emergency Additions. In the event there is a shortage of jurors, the Court may call upon anyone eligible to serve as a juror in the case without giving any advance notice.

(8) Fees. Every person who is required to attend Court for selection or service as a juror shall be entitled to fees for each day, unless otherwise compensated through Tribal ordinance, as set by resolution of the Board of Directors.

(9) Juror Oath. The jury shall be sworn in by the Court. Any juror who violates the oath may be held in contempt of Court.

(10) Conduct of Jury During Trial. Once empanelled, jurors shall be instructed by the Judge that it is their duty not to converse among themselves or with anyone else on any subject connected with the trial, or to form or express any opinion thereon, until the issues of the case are finally submitted to them. Jurors may be allowed to take notes, in the discretion of the Court. At each adjournment recess prior to submission of the case to the jury, jurors’ notes shall be collected by the Bailiff and the Judge shall instruct the jurors as to whether they may separate or must remain in the care of the Bailiff or other proper officer of the Court.

(11) View of Relevant Place or Property. Upon request by either party, the Court may allow the jury to view any place or property deemed pertinent to the just determination of the case. If viewing of a place or property is deemed appropriate, the Court shall place the jury under the custody of the Bailiff, or other proper officer of the Court, who shall then transport the jury to the viewing place. The place or property will be shown to the jury by a person appointed by the Court for that purpose, and the jurors may personally inspect the same. The Bailiff, or other proper officer of the Court, must ensure that no person speaks or otherwise communicates with the jury, on any subject connected with the trial, while viewing the place or property or traveling to or from the viewing site. After the jury has viewed the place or property, the Bailiff, or other proper officer of the Court, shall return the jurors to the courtroom without unnecessary delay or at a specified time, as directed by the Court.

(12) Jury Instructions.

(a) Submission.

(i) General. Each party shall propose jury instructions in writing as set forth by the criminal or civil procedure rules of this title. If no jury instructions are submitted to the Court, the Judge may order one or more parties to submit jury instructions.

(ii) Special. If either party desires a special instruction to be given to the jury, such proposed instruction shall be reduced to writing, signed by the party offering the instruction, and delivered to the Judge.

(b) Content. All jury instructions shall adequately inform the jurors of:

(i) Which decisions are made by the jury and which by the Presiding Judge;

(ii) The issues of fact in the case;

(iii) The rules of law to be applied to the issues of fact; and

(iv) The burden of proof with respect to each issue of fact.

(c) Disputed Instructions. A party not offering a proposed instruction shall be allowed reasonable opportunity to examine the proposed instruction and object to it. The objection must specifically state on what grounds the instruction is not an accurate statement of the law or is not an appropriate instruction for this particular case and, therefore, should not be given. A dispute regarding a proposed jury instruction must be settled during a settlement hearing outside the presence of the jury. Parties must note any objections to the jury instructions at the settlement of instructions or in writing prior to the settling hearing. A record must be made at the hearing to settle instructions.

(d) Delivery and Incorporation into the Court Record. After all evidence has been presented, and before closing arguments, the Court shall give both general and specific instructions to the jurors. For the record, but not for the jury, the Court shall mark or endorse each instruction in such a manner that shall distinctly reflect what proposed instructions were rejected, what were given in whole, and what were modified, together with the Court’s reasons for giving as requested, as modified, or for refusing a proposed instruction. All proposed instructions are part of the Court record. All objections to jury instructions must be noted on the Court record, as well as the Court’s reasons for either giving as requested, as modified, or for refusing a proposed instruction.

(13) Jury Deliberations. After closing arguments, the Court shall commit the jury to the care of a Bailiff or other officer of the Court who shall keep the jurors together and prevent communication between the jurors and others. Upon retiring to deliberate, the jurors shall select a juror as foreperson. After the jury has retired for deliberation, if there is any disagreement among the jurors as to the testimony or if the jurors desire to be informed on any point of law arising in the cause, they shall notify the Bailiff or the officer appointed to keep them together who shall then notify the Court. The information requested may be given, in the discretion of the Court, after consultation with the parties.

(14) Items That May Be Taken into Jury Room. Upon retiring for deliberation, the jurors shall take with them the written jury instructions read by the Court, exhibits admitted into evidence, and specific other exhibits. Jurors’ notes may be taken into the jury room at the discretion of the Court. All evidence that has been admitted may be allowed in the jury room, unless the Judge finds good cause not to permit it in the jury room.

(15) Activity of the Court During Jury’s Absence. While the jury is absent, the Court may adjourn or conduct other business, but it must be open for every purpose connected with the cause submitted to the jury until a verdict is returned or the jury discharged.

(16) Form of Verdict. The jury shall return a verdict as instructed by the Court and for each offense charged. The verdict must be unanimous in all criminal actions. The verdict must be by five out of six in all civil cases. The verdict must be signed by the foreperson and returned by the jury to the Judge in open Court. When two or more defendants are involved in the case before the jury, the jurors may reach a verdict regarding any one of the defendants. If the jury cannot agree with respect to all the defendants, the defendant or defendants as to whom it does not agree may be tried again.

(17) Polling the Jury. When a verdict is returned, but before it is recorded, the jury shall be polled at the request of any party or upon the Court’s own motion. If the results of the poll show that the verdict does not reflect the verdict returned, the jury may be directed to return for further deliberations or may be discharged at the Court’s discretion.

(18) Discharging Jurors. When the jury has reached a verdict or has determined that it shall be unable to do so, even with additional deliberation, the Court shall discharge the jurors from service. [Ord. 49 § 1.11, 1-8-2010 (Res. 2010-10)].

2.05.120 General privileges.

There are particular relations in which it is the policy of the law to encourage confidence and to preserve it inviolate; therefore, in any proceeding in the Tulalip Tribal Courts or in any proceeding applying the law of the Tulalip Tribes, a person cannot be examined as a witness in the following enumerated cases.

(1) Spousal. A husband cannot be examined for or against his wife without her consent or a wife for or against her husband without his consent; nor can either, during the marriage or afterward, be, without the consent of the other, examined as to any communication made by one to the other during the marriage; but this exception does not apply to a civil action or proceeding by one against the other or to a criminal action or proceeding for a crime committed by one against the other, and further does not apply to a criminal action for a crime committed by said husband or wife against any child of whom said husband or wife is the parent or guardian.

(2) Attorney-Client. An attorney or spokesperson cannot, without the consent of his client, be examined as to any communication made by the client to him or his advice given to the client in the course of professional employment. A client cannot, except voluntarily, be examined as to any communication made by him to his attorney or Court advocate or the advice given to him by his attorney or Court advocate in the course of the attorney’s or Court advocate’s professional employment.

(3) Doctor-Patient. Except as provided in Rule 35, Federal Rules of Civil Procedure, a licensed physician, surgeon, or dentist cannot, without the consent of his patient, be examined in a civil action as to any information acquired in attending the patient which was necessary to enable him to prescribe or act for the patient. This privilege shall not apply in the following situations:

(a) In any judicial proceedings regarding a child’s injury, neglect, or sexual abuse of the cause thereof; and

(b) Ninety days after filing an action for personal injuries or wrongful death, the claimant shall be deemed to have waived the physician-patient privilege. Waiver of the physician-patient privilege for any one physician or condition constitutes a waiver of the privilege as to all physicians or conditions, subject to such limitations as the Court may impose.

(4) Mental Health Professional-Client. The confidential relations and communications between a counselor, psychiatrist, or psychologist and his client shall be placed on the same basis as provided by law for those between an attorney and client.

(5) Investigative Reports – Board of Directors. An investigator employed by the Tulalip Tribes cannot be examined in any civil cause before the Courts of the Tulalip Tribes regarding an investigation performed at the request of the Tulalip Board of Directors without the formal consent in writing of the Tulalip Board of Directors to such examination. No written report produced as a part of an investigation performed at the request of the Tulalip Board of Directors may be utilized as evidence in any civil case before the Courts of the Tulalip Tribes without formal written consent of the Board of Directors.

(6) Investigative Reports – Tribal Agencies. Any reports or information collected by Tribal Police or beda?chelh are privileged unless otherwise provided by statute or order of the Court.

(7) Interpreters. Any information that an interpreter gathers pertaining to any proceeding then pending shall at all times remain confidential and privileged, on an equal basis with the attorney-client privilege, unless such person desires that such information be communicated to other persons.

(8) Clergy. A clergyman, priest, or traditional spiritual advisor cannot, without the consent of the person making the confession, be examined as to any confession made to him in his professional character in the course of discipline enjoined by the church or religion to which he belongs.

(9) Secret Ballot in a Political Vote. The right of individuals to vote by secret ballot is fundamental. Where Tribal law requires elections for public office, the right of individuals to vote by secret ballot shall be guaranteed.

(10) Trade Secrets. A person may refuse to disclose or to prevent other persons from disclosing a trade secret owned by a person, if such refusal will not tend to conceal fraud or otherwise work injustice. When disclosure is directed, the Judge shall take such protective measures as the interests of the holder of the privilege and of the parties and the furtherance of justice may require.

(11) Privileges Not Applicable in Child or Elder Abuse Reporting. None of the privileges contained in this section shall apply to the extent that reporting or testimony is required by any law related to the mandatory reporting of child or elder abuse or neglect. All persons acting in good faith to report child abuse and who provide testimony directly related to child abuse or neglect in judicial proceedings shall be immune from liability for reporting and/or testifying in good faith.

(12) Tribal Representative or Agent – Tulalip Tribal Board of Directors. The confidential communications between (a) a representative or agent employed or designated by the Tulalip Tribal Board of Directors or the Tulalip Tribes and (b) Tulalip Tribal Board of Directors shall be placed on the same basis as provided by law for those between an attorney and client.

(13) The attorney-client privilege set forth in subsection (2) of this section applies regardless of whether the client is an individual, company, or a Tribal or governmental entity. When the client of the attorney is not an individual, the attorney-client privilege protects communications between an attorney and its client when such communications were made by or to any employees or a functional equivalent and: (a) they were made to in-house or outside counsel at the direction of company, Tribal or governmental superiors, (b) concerned matters within the scope of their duties, (c) the information was not readily available from upper-level management; and (d) the individuals were aware that they were being questioned in order for the company, Tribes, or government to receive legal advice.

(14) For the purposes of this section, “functional equivalent” shall mean a consultant or independent contractor hired or retained by a company, Tribes, or governmental entity who (a) has a continuous and close working relationship with the company, Tribes, or governmental entity; (b) has primary responsibility for a key company, Tribal, or governmental job or activity; and (c) has knowledge possessed by no one else at the company, Tribes, or governmental entity. By way of example, but not limitation, a representative or agent designated as such by the Tulalip Tribes shall be considered a functional equivalent under this section.

(15) Executive/Deliberative Process Privilege. No Tribal governmental entity, including the Tulalip Tribal Board of Directors and its subcommittees, shall be required to produce and a privilege applies to protect documents, such as advisory opinions, information, recommendations, and deliberations, that (a) reflect how Tribal government decisions are made or (b) are made during the internal decision-making processes. The executive/deliberative process privilege applies not only to documents, information, recommendations, and deliberations of the Tulalip Tribal Board of Directors and its subcommittees, but also to documents, information, communications, recommendations, and deliberations with employees and/or consultants in which opinions are expressed or policies formulated or recommended related to the deliberative process. The executive/deliberative process privilege as set forth herein is a codification of the common law.

(16) Board of Directors Privilege. It is imperative that in order to aid in the effective functioning of government, the Tulalip Tribal Board of Directors must perform their public duties untroubled by the fear or threat of suit and charge of malice. When acting within the scope of their responsibilities and duties as members of the Tulalip Tribal Board of Directors or on any subcommittee thereof, the members of the Tulalip Tribal Board of Directors shall be immune from civil liability for any acts or omissions committed or made in discharge of their official positions. The absolute immunity set forth herein is a codification of the common law.

(17) Qualified Immunity for Tribal Government Officials. When acting within the scope of their authority and on behalf of the Tulalip Tribes, Tribal government officials, officers, agents or employees when performing discretionary functions shall be immune from liability for civil damages insofar as their conduct does not violate clearly established Tribal Code or Tribal Constitutional rights to which a reasonable person would have known. An injured person’s sole recourse for any act or omission of any agent, employee, official, or officer acting on behalf of the Tribes and within the scope of their authority shall be a claim under Chapter 2.35 TTC. The qualified immunity recognized herein is the codification of common law. [Res. 2019-110; Ord. 49 § 1.12, 1-8-2010 (Res. 2010-10)].

2.05.130 Rules of evidence.

(1) Scope of Rules. These rules shall constitute the rules of evidence in all proceedings in the Courts of the Tulalip Tribes. These rules 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.

(2) Rulings on Evidence.

(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:

(i) Objection. In case the ruling is one admitting evidence, a timely objection or motion to strike appears on the record, stating the specific ground of the objection if the specific ground was not apparent from the context; or

(ii) 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 object 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 to the 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.

(3) Limited Admissibility. When evidence, which is admissible as to one party or for one purpose, but not admissible as to another party or for another purpose, is admitted, the Judge, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly.

(4) Related or Remainder of Writings or Recorded Statements. When a writing or recorded statement or part 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.

(5) Judicial Notice of Adjudicative Facts.

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

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

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

(d) 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.

(6) Presumptions. In all cases not otherwise provided for by statute or by these rules, a presumption imposes on the party against whom is directed the burden of proving that 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 provision that certain facts are prima facie evidence of other facts or of guilt, are governed by this rule.

(7) Relevancy. “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 Tulalip Court. 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, misleading of the jury, or by consideration of undue delay, waste of time, or needless presentation of cumulative evidence.

(8) Character Evidence.

(a) 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:

(i) Character of Accused. Evidence of a pertinent trait of his character offered by an accused, or by the prosecution to rebut the same.

(ii) 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.

(iii) Character of Witness. Evidence of the character of a witness, as provided in these rules.

(b) 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 subsection 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.

(c) 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.

(d) 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.

(e) Habit or Routine Practice. 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.

(9) 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.

(10) Admissibility of Sympathetic Gestures. The portion of statements, writings, or benevolent gestures expressing sympathy or a general sense of benevolence relating to the pain, suffering, or death of a person involved in an accident, and made to that person or to the family of that person, shall be inadmissible as evidence in a civil action. A statement of fault, however, which is part of, or in addition to, any of the above shall not be made inadmissible by this section. For purposes of this section:

(a) “Accident” means an occurrence resulting in injury or death to one or more persons that is not the result of willful action by a party.

(b) “Benevolent gestures” means actions that convey a sense of compassion or commiseration emanating from humane impulses.

(c) “Family” means the spouse or the domestic partner, parent, grandparent, stepmother, stepfather, child, grandchild, brother, sister, half-brother, half-sister, adopted child of a parent, or spouse’s or domestic partner’s parents of an injured party.

(11) Compromise and Offers to Compromise. Evidence of (a) furnishing, offering, or promising to furnish, or (b) accepting, offering, or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount. Evidence of conduct or statements made in compromise negotiations is likewise not admissible. This 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 obstruct a criminal investigation or prosecution. Evidence of furnishing, 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 no contest, or of an offer to plead guilty or no contest to the crime charged or any other crime, or of statements made in connection with any of the foregoing pleas or offers, is not admissible in any civil or criminal proceeding against the person who made the plea or offer.

(12) Liability Insurance. Evidence that a person was or was not insured against liability is not admissible upon the issue of 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, control, or bias or prejudice of a witness.

(13) Privileges Recognized Only as Provided. Except as otherwise required by law, and except as provided in these rules or in other rules adopted by the Judges, no person has a privilege to:

(a) Refuse to be a witness;

(b) Refuse to disclose any matter;

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

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

(14) 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.

(15) Comment upon or Interference from Claim of Privilege – Instruction.

(a) Comment or Interference Not Permitted. The claim of 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 a 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.

(16) Competency of Witnesses.

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

(b) Oath or Affirmation. Before testifying, every witness shall be required to declare before the Court that he will testify truthfully, by oath or affirmation.

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

(d) 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.

(e) Competency of Juror as Witness.

(i) 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 a juror is called to testify, the opposing party shall be afforded an opportunity to object out of the presence of the jury.

(ii) 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 course of the jury’s deliberations or to the effect of anything upon his or any other juror’s mind or emotions as influencing him to assent to or dissent from the verdict or 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.

(17) Evidence of Character and Conduct of Witness.

(a) General Rule.

(i) 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.

(ii) 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 the privilege against self-incrimination when examined with respect to matters relating only to credibility.

(iii) Religious Beliefs. 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.

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

(i) 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, or sentence granted or imposed with respect to his most recent conviction, whichever is the later date.

(ii) 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.

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

(18) Mode and Order of Interrogation and Presentation.

(a) Control by Judge. The Judge shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to:

(i) Make the interrogation and presentation effective for the ascertainment of the truth;

(ii) Avoid needless consumption of time; and

(iii) 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 as 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.

(19) Writing Used to Refresh Memory. 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, 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 to it. Any portion 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 elects 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.

(20) Prior Statement of Witnesses.

(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 require. This provision does not apply to admissions of a party-opponent as defined in subsection (27) of this section.

(21) Calling and Interrogation of Witnesses by Judge.

(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.

(22) Exclusion of Witnesses. 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 rule 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 case.

(23) Opinion Testimony.

(a) Testimony of Lay Witnesses. 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:

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

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

(b) Testimony of Expert Witnesses. 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. 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 trier of fact. The expert may testify in terms of opinion or inference and give his reasons therefor 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.

(24) Expert Witnesses. Any party may call an expert witness of their own selection and at their own expense.

(25) Court-Appointed Experts.

(a) Appointment. The Judge may on his own motion, or on the motion of any party, appoint expert witnesses, and may request the parties to submit nominations. The Judge may, in his or her discretion, 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 consents 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 may be entitled to reasonable compensation in whatever sum the Judge may allow. If able, 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.

(26) Hearsay. Hearsay shall be defined according to this subsection and is not admissible except as otherwise provided by these rules of evidence.

(a) Statement. “Statement” means a person’s oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion.

(b) Declarant. “Declarant” means the person who made the statement.

(c) Hearsay. “Hearsay” means a statement that:

(i) The declarant does not make while testifying at the current trial or hearing; and

(ii) A party offers in evidence to prove the truth of the matter asserted in the statement.

(d) Statements That Are Not Hearsay. A statement that meets any of the following conditions is not hearsay:

(i) Prior Inconsistent Statement. The declarant testifies and is subject to cross-examination about a prior statement, and the statement is inconsistent with the declarant’s testimony and was given under penalty of perjury at a trial, hearing, or other proceeding or in a deposition.

(ii) Prior Consistent Statement. The declarant testifies and is subject to cross-examination about a prior statement, and the statement is consistent with the declarant’s testimony and is offered: to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying; or to rehabilitate the declarant’s credibility as a witness when attacked on another ground.

(iii) Identification. The declarant testifies and is subject to cross-examination about a prior statement, and the statement identifies a person as someone the declarant perceived earlier.

(iv) Opposing Party’s Statement. The statement is offered against an opposing party and:

(A) Was made by the party in an individual or representative capacity;

(B) Is one the party manifested that it adopted or believed to be true;

(C) Was made by a person whom the party authorized to make a statement on the subject;

(D) Was made by the party’s agent or employee on a matter within the scope of that relationship and while it existed; or

(E) Was made by the party’s coconspirator during and in furtherance of the conspiracy.

The statement must be considered but does not by itself establish the declarant’s authority under subsection (26)(d)(iv)(C) of this section; the existence or scope of the relationship under subsection (26)(d)(iv)(D) of this section; or the existence of the conspiracy or participation in it under subsection (26)(d)(iv)(E) of this section.

(27) Hearsay Exceptions – Availability of Declarant Immaterial. The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

(a) Present sense impression;

(b) Excited utterance;

(c) Then-existing mental, emotional, or physical condition;

(d) Statements for purposes of medical diagnosis or treatment;

(e) Recorded recollection;

(f) Records of regularly conducted activity;

(g) Absence of entry in records of regularly conducted activity;

(h) Public records and reports;

(i) Records of vital statistics;

(j) Absence of public record or entry;

(k) Records of religious organizations;

(l) Marriage, baptismal, and similar certificates;

(m) Family records;

(n) Records of documents affecting an interest in property;

(o) Statements in documents affecting an interest in property;

(p) Statements in ancient documents (20 years old or more);

(q) Market reports, commercial publications;

(r) Learned treaties;

(s) Reputation concerning personal or family history;

(t) Reputation concerning boundaries or general history;

(u) Reputation as to character;

(v) Judgment of previous conviction;

(w) Judgment as to personal, family, or general history;

(x) An admission of a party-opponent; and

(y) Statement used by a witness at a prior hearing subject to cross-examination.

(28) Hearsay Exceptions – Declarant Unavailable.

(a) Definition of Unavailability. “Unavailability as a witness” includes a situation in which the declarant:

(i) Is exempted by ruling of the Judge on the ground of privilege from testifying concerning the subject matter of his statement;

(ii) Persists in refusing to testify concerning the subject matter of his statement despite an order of the Judge to do so;

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

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

(v) Is absent from the hearing and the proponent of his statement has been unable to procure his attention 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.

(b) Exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:

(i) A statement of present sense impression;

(ii) A statement under belief of impending death;

(iii) A statement against pecuniary or proprietary interest; or

(iv) A statement not specifically covered by any of the foregoing exceptions but having comparable guarantees of trustworthiness.

(29) Hearsay within Hearsay. 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.

(30) Attacking and Supporting Credibility of Declarant. 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 the 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.

(31) Foundations for Evidence. All evidence must be authenticated or identified to the satisfaction of the Judge that the evidence is what it is claimed to be before it may be admitted.

(32) Best Evidence Rule. 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. 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 regarding: whether the asserted writing ever existed; whether another writing, recording, or photograph produced at the trial is the original; or whether other evidence of contents correctly reflects the contents, then the issue is for the trier of fact to determine as in the case of other issues of fact.

(a) Duplicates. A duplicate is admissible to the same extent as an original unless:

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

(ii) Under the circumstances, it would be unfair to admit the duplicate in lieu of the original.

(b) Original Not Required. The original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible, if:

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

(ii) Original Not Obtainable. No original can be obtained by any available judicial process or procedure;

(iii) 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, the contents would be a subject of proof at the hearing, and he does not produce the original at the hearing; or

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

(c) Official Records. 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.

(d) Testimony Regarding Contents. 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 nonproduction of the original.

(33) Evidence of Similar Crimes in Cases Involving Sexual Offenses.

(a) Adult Sexual Assault Cases. In a criminal case in which the defendant is accused of an offense of sexual assault, evidence of the defendant’s commission of another offense or offenses of sexual assault is admissible, and may be considered for its bearing on any matter to which it is relevant. In a case in which the Tribes’ Attorney intends to offer evidence under this rule, the attorney shall disclose the evidence to the defendant, including statements of witnesses or a summary of the substance of any testimony that is expected to be offered, at least 15 days before the scheduled date of trial or at such later time as the Court may allow for good cause. This rule shall not be construed to limit the admission or consideration of evidence under any other rule. For purposes of this rule, “sexual assault” includes all forms of sexual assault or exploitation, including, but not limited to, rape, molestation, and prostitution.

(b) Child Sexual Abuse Cases. In a criminal case in which the defendant is accused of committing a crime under Chapter 3.20 or 3.25 TTC that involves a child, evidence of the defendant’s commission of another offense or offenses of child sexual abuse is admissible, and may be considered for its bearing on any matter to which it is relevant. In a case in which the Tribes intends to offer evidence under this rule, the Tribes’ Attorney shall disclose the evidence to the defendant, including statements of witnesses or a summary of the substance of any testimony that is expected to be offered, at least 15 days before the scheduled date of trial or at such later time as the Court may allow for good cause. This rule shall not be construed to limit the admission or consideration of evidence under any other rule. For purposes of this rule, “child” means a person below the age of 14, and “child sexual abuse” includes all forms of sexual assault or exploitation involving a child, including, but not limited to, child rape, child molestation, child pornography, and child prostitution.

(34) Relevance of Alleged Sexual Assault Victim’s Sexual History.

(a) Evidence offered to prove that any alleged victim engaged in other sexual behavior and evidence offered to prove any alleged victim’s sexual predisposition is not admissible in any criminal or civil proceeding involving alleged sexual misconduct except as provided in subsections (34)(b) and (c) of this section.

(b) In a criminal case, the following evidence is admissible, if otherwise admissible under these rules: evidence of specific instances of sexual behavior by the alleged victim offered to prove that a person other than the accused was the source of semen, injury or other physical evidence; evidence of specific instances of sexual behavior by the alleged victim with respect to the person accused of the sexual misconduct offered by the accused to prove consent or by the prosecution; and evidence the exclusion of which would violate the constitutional rights of the defendant.

(c) In a civil case, evidence offered to prove the sexual behavior or sexual predisposition of any alleged victim is admissible if it is otherwise admissible under these rules and its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party. Evidence of an alleged victim’s reputation is admissible only if it has been placed in controversy by the alleged victim.

(d) Procedure to Determine Admissibility. A party intending to offer evidence under subsection (34)(b) of this section must file a written motion at least 14 days before trial specifically describing the evidence and stating the purpose for which it is offered unless the Court, for good cause, requires a different time for filing or permits filing during trial; and serve the motion on all parties and notify the alleged victim or, when appropriate, the alleged victim’s guardian or representative. Before admitting evidence under this rule the court must conduct a hearing in camera and afford the victim and parties a right to attend and be heard. The motion, related papers, and the record of the hearing must be sealed and remain under seal unless the Court orders otherwise.

(35) Evidence of Similar Acts in Civil Cases Concerning the Sexual Assault of Adults or Children. In a civil case in which a claim for damages or other relief is predicated on a party’s alleged commission of conduct constituting an offense of sexual assault on an adult or child, evidence of that party’s commission of another offense or offenses of sexual assault is admissible and may be considered as provided in subsection (33) of this section. A party who intends to offer evidence under this subsection shall disclose the evidence to the party against whom it will be offered, including statements of witnesses or a summary of the substance of any testimony that is expected to be offered, at least 15 days before the scheduled date of trial or at such later time as the Court may allow for good cause. This rule shall not be construed to limit the admission or consideration of evidence under any other rule. [Res. 2017-091 § 1; Res. 2010-206; Ord. 49 § 1.13, 1-8-2010 (Res. 2010-10)].