TRIAL DIVISION OF THE KOSRAE STATE COURT
FEDERATED STATES OF MICRONESIA
ARTICLE I. GENERAL PROVISIONS
These rules govern proceedings in the Kosrae State Court of the Federated States of Micronesia and before state judicial officers acting on matters within the jurisdiction of the Kosrae State Court of the Federated States of Micronesia pursuant to the Federated States of Micronesia Kosrae State Court Rules of Civil Procedure, or Criminal Procedure, to the extent and with the exceptions stated in rule 1101.
PURPOSE AND CONSTRUCTION
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.
RULING 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:
(1) Objection. In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the ground of objection, if the specific ground was not apparent from the context; or
(2) Offer of proof. In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.
(b) Record of offer and ruling. The court may add any other or further statement which shows the character of the evidence, the form in which it was offered, the objection made, and the ruling thereon. It may direct the making of an offer in question and answer form.
(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 court.
(a) Questions of admissibility generally. Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of subdivision (b). In making its determination it is not bound by the rules of evidence except those with respect to privileges.
(b) Relevancy conditioned on fact. When the relevancy
of evidence depends upon the fulfillment of a condition of fact, the court shall
admit it upon, or subject to, the introduction of evidence sufficient to support
a finding of the fulfillment of the condition.
(d) Testimony by accused. The accused does not, by testifying upon a preliminary matter, subject himself to cross-examination as to other issues in the case.
(e) Weight and credibility. This rule does not limit the right of a party to introduce evidence relevant to weight or credibility.
When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope.
REMAINDER OF OR RELATED WRITINGS
OR RECORDED STATEMENTS
When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require him at that time to introduce any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.
ARTICLE II. JUDICIAL NOTICE
JUDICIAL NOTICE OF ADJUDICATIVE FACTS
(a) Scope of rule. This rule governs only judicial notice of adjudicative facts.
(b) Kinds of facts. A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.
(c) When discretionary. A court may take judicial notice, whether requested or not.
(d) When mandatory. A 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.
ARTICLE III. PRESUMPTIONS IN CIVIL ACTIONS
PRESUMPTIONS IN GENERAL
IN CIVIL ACTION AND PROCEEDINGS
In all civil actions and proceedings not otherwise provided for by Act of Legislature or by these rules, a presumption imposes on the party against whom it is directed the burden of going forward with evidence to rebut or meet the presumption, but does not shift to such party the burden of proof in the sense of risk of nonpersuasion, which remains throughout the trial upon the party on whom it was originally cast.
APPLICABILITY OF STATE LAW IN CIVIL ACTIONS
In civil actions and proceedings, the effect of a presumption respecting a fact which is an element of a claim or defense as to which State law supplies the rule of decision is determined in accordance with State law.
ARTICLE IV. RELEVANCY AND ITS LIMITS
DEFINITION OF "RELEVANT EVIDENCE"
"Relevant evidence" means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.
RELEVANT EVIDENCE GENERALLY ADMISSIBLE;
IRRELEVANT EVIDENCE INADMISSIBLE.
All relevant evidence is admissible, except as otherwise provided by the Constitution of the Federated States of Micronesia, the Constitution of the State of Kosrae, Act of Congress, Act of the Legislature or these rules. Evidence which is not relevant is not admissible.
EXCLUSION OF RELEVANT EVIDENCE ON GROUNDS OF
PREJUDICE, CONFUSION, OR WASTE OF TIME
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
CHARACTER EVIDENCE NOT ADMISSIBLE TO PROVE
CONDUCT: EXCEPTIONS: OTHER CRIMES
(a) Character evidence generally. Evidence of a person's character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion, except:
(1) Character of accused.
Evidence of a pertinent trait of his character offered by an accused, or
by the prosecution to rebut the same;
(2) Character of victim. Evidence of a pertinent trait of character of the victim of the crime offered by an accused, or by the prosecution to rebut the same or evidence of a character trait of peacefulness of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the first aggressor;
(3) Character of witness. Evidence of the character of a witness, as provided in rules 607, 608 and 609.
(b) Other crimes, wrongs, or acts.
Evidence of other crimes, wrongs, or acts is not admissible to
prove the character of a person in order to show that he acted in conformity
therewith. It may, however, be admissible for other purposes, such as
proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident.
METHODS OF PROVING CHARACTER
(a) Reputation of opinion. In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct.
(b) Specific instance 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.
HABIT; 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 eye witnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.
SUBSEQUENT REMEDIAL MEASURES
When, after an event,
measures are taken which, it 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.
COMPROMISE AND OFFERS TO COMPROMISE
Evidence of (1) furnishing
or offering or promising to furnish, or (2) accepting or offering or promising
to accept, a valuable consideration in compromising or attempting to compromise
a claim which was disputed as to either validity or amount, is not admissible to
prove liability for or invalidity of the claim or its amount. Evidence of
conduct or statements made in compromise negotiations or in proposing or
participating in a customary apology or customary settlement is likewise
not admissible. This rule does not require the exclusion of any factual
evidence otherwise discoverable merely becuase it is presented or discussed in
the course of compromise negotiations or in proposing or participating in a
customary apology or customary settlement. This rule also does not require
exclusion when the evidence is offered for another purpose, such as proving bias
or prejudice of a witness, negativing a a contention of undue delay or proving
an effort to obstruct a criminal investigation or prosecution.
PAYMENT OF MEDICAL AND SIMILAR EXPENSES
Evidence of furnishing or
offering or promising to pay medical, hospital, or similar expenses occasioned
by an injury is not admissible to prove liability for the
INADMISSIBILITY OF PLEAS, PLEA
AND RELATED STATEMENTS
Except as otherwise
provided in this rule, evidence of the following is not, in any civil or
criminal proceeding, admissible against the defendant who made the plea or was a
participant in the plea discussions:
a plea of guilty which was later
a plea of nolo contendere;
any statement made in the course of any proceedings
under Rule 11 of the Rules of Criminal Procedure or comparable state procedure
regarding either of the foregoing pleas; or
any statement made in the course of plea discussions
with an attorney for the prosecuting authority which do not result in a plea of
guilty or which result in a plea of guilty later withdrawn.
However, such a statement is admissible (i) in any
proceeding wherein another statement made in the course of the same plea or plea
discussions has been introduced and the statement ought in fairness be
considered contemporaneously with it, or (ii) in a criminal proceeding for
perjury or false statement if the statement was made by the defendant under
oath, on the record and in the presence of counsel.
Evidence that a person was
or was not insured against liability is not admissible upon the issue whether he
acted negligently or otherwise wrongfully. This rule does not require the
exclusion of evidence of insurance against liability when offered for another
purpose, such as proof of agency, ownership, or control, or bias or prejudice of
RAPE CASES, RELEVANCE OF VICTIM'S PAST
any other provision of law, in a criminal case in which a person is accused of
rape or of assault with intent to commit rape, reputation or opinion evidence of
the past sexual behavior of an alleged victim of such rape or assault is not
any other provision of law, in a criminal case in which a person is accused of
rape or of assault with intent to commit rape, evidence of a victim's past
sexual behavior other than reputation or opinion evidence is also not
admissible, unless such evidence other than reputation or opinion evidence
admitted in accordance with subdivision (c) and is
constitutionally required to be admitted; or
admitted in accordance with subdivision (c) and is
evidence of --
past sexual behavior with persons other than the
accused, offered by the accused upon the issue of whether the accused was or was
not, with respect to the alleged victim, the source of semen or injury; or
past sexual behavior with the accused and is offered by
the accused upon the issue of whether the alleged victim consented to the sexual
behavior with respect to which rape or assault is alleged.
If the person accused of committing rape or assault with
intent to commit rape intends to offer under subdivision (b) evidence of
specific instances of the alleged victim's past sexual behavior, the accused
shall make a written motion to offer such evidence at the time set for filing of
pre-trial motions under Rule 12 of the Rules of Criminal Procedure, except that
the court may allow the motion to be made at a later date, including during
trial, if the court determines either that the evidence is newly discovered and
could not have been obtained earlier through the exercise of due diligence or
that the issue to which such evidence relates has newly arisen in the case.
Any motion made under this paragraph shall be accompanied by a written
offer of proof and served on all other parties and on the alleged victim.
If the court determines that the offer of proof contains evidence
described in subdivision (b), the court shall order a hearing in chambers to
determine if such evidence is relevant and if its probative value outweighs the
danger of unfair prejudice. If so, the evidence shall be admissible to the
extent an order made by the court specifies the evidence, and the areas with
respect to which the alleged victim may be examined or
For purpose of this rule, the term "past sexual
behavior" means sexual behavior other than the sexual behavior with respect to
which rape or assault with intent to commit rape is alleged.
Except as otherwise
required by the Constitution of the Federated States of Micronesia or provided
by Act of Congress or in rules prescribed by the Chief Justice pursuant to
Article XI of the Constitution, the privilege of a witness, person, government,
State, or political subdivision thereof shall be governed by the principles of
the common law as they may be interpreted by the courts of the Federated States
of Micronesia in the light of reason and experience, including local custom and
tradition. However, in civil actions and proceedings, with respect to an
element of a claim or defense as to which State law supplies the rule of
decision, the privilege of a witness, person, government, State, or political
subdivision thereof shall be determined in accordance with State
GENERAL RULE OF COMPETENCY
Every person is competent
to be a witness except as otherwise provided in these Rules. However, in
civil actions and proceedings, with respect to an element of a claim or defense
as to which State law supplies the rule of decision, the competency of a witness
shall be determined in accordance with State law.
LACK OF PERSONAL KNOWLEDGE
A witness may not testify
to a matter unless evidence is introduced sufficient to support a finding that
he has personal knowledge of the matter. Evidence to prove personal
knowledge may, but need not, consist of the testimony of the witness himself.
This rule is subject to the provisions of rule 703, relating to opinion testimony by expert
OATH OR AFFIRMATION
Before testifying, every
witness shall be required to declare that he will testify truthfully, by oath or
affirmation administered in a form calculated to awaken his conscience and
impress his mind with his duty to do so.
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
COMPETENCY OF JUDGE AS WITNESS
The judge presiding at the
trial may not testify in that trial as a witness. No objections need be
made in order to preserve the point.
COMPETENCY OF JUROR AS WITNESS
WHO MAY IMPEACH
The credibility of a
witness may be attacked by any party, including the party calling
EVIDENCE OF CHARACTER AND CONDUCT OF
Opinion and reputation evidence
of character. The credibility of a witness may be attacked or
supported by evidence in the form of opinion or reputation, but subject to these
limitations: (1) the evidence may refer only to character for truthfulness
or untruthfulness, and (2) evidence of truthful character is admissible only
after the character of the witness for truthfulness has been attacked by opinion
or reputation evidence or otherwise.
Specific instance of
conduct. Specific instances of the conduct of a witness, for the
purpose of attacking or support his credibility, other than conviction of crime
as provide in rule 609, may not be proved by extrinsic evidence. They may,
however, in the discretion of the court, if probative of truthfulness or
untruthfulness, be inquired into on cross-examination of the witness: (1)
concerning his character for truthfulness or untruthfulness, or (2)
concerning the character for truthfulness or untruthfulness of another
witness as to which character the witness being cross-examined has
The giving of
testimony, whether by an accused or by any other witness, does not operate as a
waiver of his privilege against self-incrimination when examined with respect to
matters which relate only to credibility.
IMPEACHMENT BY EVIDENCE OF CONVICTION OF
For the purpose of attacking the credibility of a witness, evidence
that he has been convicted of a crime shall be admitted if elicited from him or
established by public record during cross-examination but only if the crime (1)
was punishable by death or imprisonment in excess of one year under the law
under which he was convicted, and the court determines that the probative value
of admitting this evidence outweighs its prejudicial effect to the defendant, or
(2) involved dishonesty or false statement, regardless of the
Evidence of a conviction under this rule is
not admissible if a period of more than ten years has elapsed since the date of
the conviction or of the release of the witness from the confinement imposed for
that conviction, whichever is the later date, unless the court determines, in
the interests of justice, that the probative value of the conviction, supported
by specific facts and circumstances substantially outweighs its prejudicial
effect. However, evidence of a conviction more than 10 years old as
calculated herein, is not admissible unless the proponent gives to the adverse
party sufficient advance written notice of intent to use such evidence to
provide the adverse party with a fair opportunity to contest the use of such
Effect of pardon, annulment, or
certificate of rehabilitation. Evidence of a conviction is not
admissible under this rule if (1) the conviction has been the subject of pardon,
annulment, certificate of rehabilitation, or other equivalent procedure based on
a finding of the rehabilitation of the person convicted, and that person has not
been convicted of a subsequent crime which was punishable by death or
imprisonment in excess of one year, or (2) the conviction has been the subject
of a pardon, annulment, or other equivalent procedure based on a finding of
Evidence of juvenile adjudications is generally not admissible under this
rule. The court may, however, in a criminal case allow evidence of a
juvenile adjudication of a witness other than the accused if conviction of the
offense would be admissible to attack the credibility of an adult and the court
is satisfied that admission in evidence is necessary for a fair determination of
the issue of guilt or innocence.
Pendency of appeal.
The pendency of an appeal therefrom does not render evidence of a
conviction inadmissible. Evidence of the pendency of an appeal is
RELIGIOUS BELIEFS OR OPINIONS
Evidence of the beliefs or
opinions of a witness on matters of religion is not admissible for the purpose
of showing that by reason of their nature his credibility is impaired or
MODE AND ORDER OF INTERROGATION AND
Control by court.
The court shall exercise reasonable control over the mode and
order of interrogating witnesses and presenting evidence so as to (1) make
the interrogation and presentation effective for the ascertainment of the truth,
(2) avoid needless consumption of time and (3) protect witnesses from harassment
or undue embarrassment.
Scope of cross-examination.
Cross-examination should be limited to the subject matter of the
direct examination and matters affecting the credibility of the witness.
The court may, in the exercise of discretion, permit inquiry into
additional matters as if on direct examination.
Leading questions should not be used on the direct examination of a
witness except as may be necessary to develop his testimony. Ordinarily
leading questions should be permitted on cross-examination. When a party
calls a hostile witness, an adverse party, or a witness identified with an
adverse party, interrogation may be by leading questions.
WRITING USED TO REFRESH MEMORY
If a witness uses a writing
to refresh his memory for the purpose of testifying, either:
while testifying, or
before testifying, if the court in its discretion
determines it is necessary in the interests of justice, an
adverse party is entitled to have the writing produced at the hearing, to
inspect it, to cross-examine the witness thereon, and to introduce in evidence
those portions which relate to the testimony of the witness. If it is
claimed that the writing contains matters not related to the subject matter of
the testimony the court shall examine the writing in camera, excise any portions
not so related, and order delivery of the remainder to the party entitled
thereto. Any portion withheld over objections shall be preserved and made
available to the appellate court in the event of an appeal. If a writing
is not produced or delivered pursuant to order under this rule, the court shall
make any order justice requires, except that in criminal cases when the
prosecution elects not to comply, the order shall be one striking the testimony
or, if the court in its discretion determines that the interests of justice so
require, declaring a mistrial.
PRIOR STATEMENTS OF WITNESSES
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 nor its
contents disclosed to him at that time, but on request the same shall be shown
or disclosed to opposing counsel.
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 rule 801(d)(2).
CALLING AND INTERROGATION OF WITNESSES BY
(a) Calling by court. The court may, on its own
motion or at the suggestion of a party, call witnesses, and all parties are
entitled to cross-examine witnesses thus called.
Interrogation by court.
The court may interrogate witnesses, whether called by itself or by a
to the calling of witnesses by the court or to interrogation by it may be made
at the time or at the next available opportunity when the jury is not
EXCLUSION OF WITNESS
At the request of a party
the court shall order witnesses excluded so that they cannot hear the testimony
of other witnesses, and it may make the order of its own motion. This rule
does not authorize exclusion of (1) a party who is a natural person, or (2) an
officer or employee of a party which is not a natural person designated as its
representative by its attorney, or (3) a person whose presence is shown by a
party to be essential to the presentation of his cause.
OPINIONS AND EXPERT TESTIMONY
OPINION TESTIMONY BY 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 (a) rationally based on the
perception of the witness and (b) helpful to a clear understanding of his
testimony or the determination of a fact in issue.
TESTIMONY BY EXPERTS
If scientific, technical,
or other specialized knowledge, including the knowledge of experts on local
tradition and custom, 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.
BASES OF OPINION TESTIMONY BY EXPERTS
The facts or data in the
particular case upon which an expert bases an opinion or inference may be those
perceived by or made known to him at or before the hearing. If of a type
reasonably relied upon by experts in the particular field in forming opinions or
inferences upon the subject, the facts or data need not be admissible in
OPINION ON ULTIMATE ISSUE
Testimony in the form of an
opinion or inference otherwise admissible is not objectionable because it
embraces an ultimate issue to be decided by the trier of fact.
DISCLOSURE OF FACTS OR DATE
UNDERLYING EXPERT OPINION
The expert may testify in
terms of opinion or inference and give his reasons therefore without prior
disclosure of the underlying facts or data, unless the court requires otherwise.
The expert may in any event be required to disclose the underlying facts
or data on cross-examination.
COURT APPOINTED EXPERTS
Appointment. The court
may on its own motion or on the motion of any party enter an order to show cause
why expert witnesses should not be appointed, and may request the parties to
submit nominations. The court may appoint any expert witness agreed upon
by the parties, and may appoint expert witnesses of its own selection.
An expert witness shall not be appointed by the court unless he
consents to act. A witness so appointed shall be informed of his duties by
the court in writing, a copy of which shall be filed with the clerk, or at a
conference in which the parties shall have opportunity to participate. A
witness so appointed shall advise the parties of his findings, if any; his
deposition may be taken by any party; and he may be called to testify by the
court or any party. He shall be subject to cross-examination by each
party, including a party calling him as a witness.
witnesses so appointed are entitled to reasonable compensation in whatever sum
the court may allow. The compensation thus fixed is payable from funds
which may be provided by law in criminal cases. In civil actions and
proceedings the compensation shall be paid by the parties in such proportion and
at such time as the court directs, and thereafter charged in like manner as
Parties' experts of own
selection. Nothing in this rule limits the parties in calling expert
witnesses of their own selection.
The following definitions
apply under this article:
"statement" is (1) an oral or written assertion or (2) nonverbal conduct of a
person, if it is intended by him as an assertion.
declarant" is a person who makes a statement.
Hearsay. "Hearsay" is
a statement, other than one made by the declarant while testifying at the trial
or hearing, offered in evidence to prove the truth of the matter
Statements which are not
hearsay. A statement is not hearsay if--
Prior statement by witness.
The declarant testifies at the trial or hearing and is subject to
cross-examination concerning the statement, and the state is (A) inconsistent
with his testimony, and was given under oath subject to the penalty of perjury
at a trial, hearing, or other proceeding, or in a deposition, or (B) consistent
with his testimony and is offered to rebut an express or implied charge against
him of recent fabrication or improper influence or motive, or (C) one of
identification of a person made after perceiving him: or
Admission by party-opponent.
The statement is offered against a party and is (A) his own statement, in
either his individual or a representative capacity or (B) a statement of which
he has manifested his adoption or belief in its truth, or (C) a statement
by a person authorized by him to make a statement concerning the subject, or (D)
a statement by his agent or servant concerning a matter within the scope
of his agency or employment, made during the existence of the relationship, or
(E) a statement by a conspirator of a party during the course and in
furtherance of the conspiracy.
Hearsay is not admissible
except as provided by these rules or by other rules prescribed by the Chief
Justice pursuant to Article XI of the Constitution, or by statute enacted by the
Congress of the Federated States of Micronesia.
AVAILABILITY OF DECLARANT IMMATERIAL
The following are not
excluded by the hearsay rule, even though the declarant is available as a
Present sense impression.
A statement describing or explaining an event or condition made while the
declarant was perceiving the event or condition, or immediately
A statement relating to a startling event or condition made while
the declarant was under the stress of excitement caused by the event or
Then existing mental, emotional
or physical condition. A statement of the declarant's then
existing state of mind, emotion, sensation, or physical condition (such as
intent, plan, motive, design, mental feeling, pain and bodily health), but not
including a statement of memory or belief to prove the fact remembered or
believed unless it relates to the execution, revocation, identification, or
terms of declarant's will.
Statements for purposes of
medical diagnosis or treatment. Statements made for purposes of
medical diagnosis or treatment and describing medical history, or past or
present symptoms, pain, or sensations, or the inception or general character of
the cause or external source thereof or insofar as reasonably pertinent to
diagnosis or treatment.
A memorandum or record concerning a matter about which a witness
once had knowledge but now has insufficient recollection to enable him to
testify fully and accurately, shown to have been made or adopted by the witness
when the matter was fresh in his memory and to reflect that knowledge
Records of regularly conducted
activity. A memorandum, report, record, or data compilation, in any
form, of acts, events, conditions, opinion, or diagnosis, made at or near the
time by, or from information transmitted by, a person with knowledge, if kept in
the course of a regularly conducted business activity, and if it was the regular
practice of that business activity to make the memoranda, report, record, or
data compilation, all as shown by the testimony of the custodian or other
qualified witness, unless the source of information or the method or
circumstances of preparation indicate lack of trustworthiness. The term
"business" as used in this paragraph includes business, institution,
association, profession, occupation, and calling of every kind, whether or not
conducted for profit.
Absence of entry in records kept
in accordance with the provisions of paragraph (6). Evidence that a
matter is not included in the memoranda reports, records, or data compilations,
in any form, kept in accordance with the provisions of paragraph (6), to prove
the nonoccurrence or nonexistence of the matter, if the matter was of a kind of
which a memoranda, report, record, or data compilation was regularly
made and preserved unless the sources of information or other circumstances
indicate lack of trustworthiness.
Public records and reports.
Records, reports, statement, or data compilation, in any form, of
public offices or agencies, setting forth (A) the activities of the office or
agency, or (B) matters observed pursuant to duty imposed by law as to which
matters there was a duty to report, excluding, however, in criminal cases
matters observed by police officers and other law enforcement personnel, or (C)
in civil actions and proceedings and against the Government in criminal case,
factual findings resulting from an investigation made pursuant to authority
granted by law, unless the sources of information or other circumstances
indicate lack of trustworthiness.
Records of vital statistics.
Records or data compilations, in any form, of births, fetal deaths, deaths
or marriages, if the report thereof was made to a public office pursuant to
requirements of law.
Absence of public record or
entry. To prove the absence of a record, report, statement, or data
compilation, in any form, or the nonoccurrence or nonexistence of a matter of
which a record, report, statement, or data compilation, in any form, was
regularly made and preserved by a public office or agency, evidence in the form
of a certification in accordance with rule
902, or testimony, that diligent search failed to disclose the record,
report, statement, or data compilation, or entry.
Records of religious
organizations. Statements of births, marriages, divorces, deaths,
legitimacy, ancestry, relationship by blood or marriage, or other similar facts
of personal or family history, contained in a regularly kept record of a
Marriage, baptismal, and similar
certificates. Statements of fact contained in a certificate that the
maker performed a marriage or other ceremony or administered a sacrament, made
by a clergyman, public official, or other person authorized by the rules of
practices of a religious organization or by law to perform the act certified,
and purporting to have been issued at the time of the act or within a reasonable
Statements of fact concerning personal or family history contained
in family Bibles, genealogies, charts, engravings on rings, inscriptions on
family portraits, engravings on urns, crypts, or tombstones, or the
Records of documents affecting
an interest in property. The records of a document purporting to
establish or affect an interest in property, as proof of the content of the
original recorded document and its execution and delivery by each person by whom
it purports to have been executed, if the record is a record of a public
office and an applicable statute authorizes the recording of documents of that
kind in that office.
Statements in documents
affecting an interest in property. A statement contained in a document
purporting to establish or affect an interest in property if the matter stated
was relevant to the purpose of the document, unless dealings with the property
since the document was made have been inconsistent with the truth of the
statement or the purport of the document.
Statements in ancient
documents. Statements in a document in existence twenty years or more
the authenticity of which is established.
Market reports, commercial
publications. Market quotations, tabulations, lists, directories, or
other published compilations, generally used and relied upon by the public or by
persons in particular occupations.
Learned treaties. To
extent called to the attention of an expert witness upon cross-examination or
relied upon by him in direct examination, statement, contained in published
treatises, periodicals, or pamphlets established as a reliable authority by the
testimony or admission of the witness or by other expert testimony or by
judicial notice. If admitted, the statements may be read into evidence but
may not be received as exhibits.
Reputation concerning personal
or family history. Reputation among members of his family by blood,
adoption, or marriage, or among his associates, or in the community, concerning
a person's birth, adoption, or marriage, ancestry, or other similar fact of his
personal or family history.
Reputation concerning boundaries
or general history. Reputation in a community, arising before
the controversy, as to boundaries of or customs affecting lands in the community
and reputation as to events of general history important to the community or
State or nation in which located.
Reputation as to character.
Reputation of a person's character among his associates or in the
Judgment of previous
conviction. Evidence of a final judgment, entered after a trial or
upon a plea of guilty (but not upon a plea of nolo contendere), adjudging a
person guilty of a crime punishable by death or imprisonment in excess of one
year, to prove any fact essential to sustain the judgment, but not including,
when offered by the Government in a criminal prosecution for purposes other than
impeachment, judgments against persons other than the accused. The
pendency of an appeal may be shown but does not affect
Judgment as to personal, family,
or general history, or boundaries. Judgments as proof of matters of
personal, family or general history or boundaries essential to the judgment, if
the same would be provable by evidence of reputation.
Other exceptions. A
statement not specifically covered by any of the foregoing exceptions but having
equivalent circumstantial guarantees of trustworthiness, if the court determines
that (A) the statement is offered as evidence of a material fact; (B) the
statement is more probative on the point for which it is offered than any other
evidence which the proponent can procure through reasonable efforts; and (C)
the general purposes of these rules and the interests of justice will best
be served by admission of the statement into evidence. However, a
statement may not be admitted under this exception unless the proponent of it
makes known to the adverse party sufficiently in advance of the trial or hearing
to provide the adverse party with a fair opportunity to prepare to meet it, his
intention to offer the statement and the particulars of it, including the name
and address of the declarant.
unavailability. "Unavailability as witness" includes
situations in which the declarant --
exempted by ruling of the court on the ground of privilege from testifying
concerning the subject matter of his statement; or
persists in refusing to testify concerning the subject
matter of his statement despite an order of the court to do so;
testifies to a lack of memory of the subject matter of
his statement; or
unable to be present or to testify at the hearing because of death or then
existing physical or mental illness or infirmity; or
is absent from the hearing and the proponent of his
statement has been unable to procure his attendance (or in the case of a hearsay
exception under subdivision (b) (2), (3), or (4), his attendance or testimony)
by process or other reasonable means.
A declarant is not
unavailable as a witness if his exemption, refusal, claim of lack of
memory, inability, absence is due to the procurement or wrongdoing of the
proponent of his statement for the purpose of preventing the witnesses from
attending or testifying.
The following are not excluded by the hearsay rule if the declarant is
unavailable a witness:
(1) Former testimony. Testimony given as a witness at
another hearing of the same or a different proceeding, or in a deposition taken
in compliance with law in the course of the same or another proceeding, if the
party against whom the testimony is now offered, or in a civil action or
proceeding, a predecessor in interest, had an opportunity and similar motive to
develop the testimony by direct, cross, or redirect examination.
(2) Statement under belief of impending death. In a
prosecution for homicide or in a civil action or proceeding, a statement made by
a declarant while believing that his death was imminent, concerning the cause or
circumstances of what he believed to be his impending death.
(3) Statement against interest. A statement
which was at the time of its making so far contrary to the declarant's pecuniary
or proprietary interest, or so far tended to subject him to civil or criminal
liability, or to render invalid a claim by him against another, that a
reasonable man in his position would not have made the statement unless he
believed it to be true. A statement tending to expose the declarant to
criminal liability and offered to exculpate the accused is not admissible
unless corroborating circumstances clearly indicate the trustworthiness of the
(4) Statement of personal or family history. (A)
A statement concerning the declarant's own birth, adoption,
marriage, divorce, legitimacy, relationship by blood, adoption, or marriage,
ancestry, or other similar fact of personal or family history, even though
declarant had no means of acquiring personal knowledge of the matter stated; or
(B) a statement concerning the foregoing matters, and death also, of another
person, if the declarant was related to the other by blood, adoption, or
marriage or was so intimately associated with the other's family as to be likely
to have accurate information concerning the matter declared.
(5) Statement of Recent Perception. A statement, not
in response to the instigation of a person engaged in investigating, litigating,
or settling a claim, which narrates, describes, or explains an event or
condition recently perceived by the declarant, made in good faith, not in
contemplation of pending or anticipated litigation in which he was interested,
and while his recollection was clear.
(6) Other exceptions. A statement not specifically
covered by any of the foregoing exceptions but having equivalent circumstantial
guarantees of trustworthiness, if the court determines that (A) the
statement is offered as evidence of a material fact; (B) the statement is more
probative on the point for which it is offered than any other evidence which the
proponent can procure through reasonable efforts; and (C) the general purposes
of these rules and the interests of justice will best be served by admission of
the statement into evidence. However, a statement may not be admitted
under this exception unless the proponent of it makes known to the adverse party
sufficiently in advance of the trial or hearing to provide the adverse party
with a fair opportunity to prepare to meet it, his intention to offer the
statement and the particulars of it, including the name and address of the
HEARSAY WITHIN HEARSAY
Hearsay included within
hearsay is not excluded under the hearsay rule if each part of the combined
statements conforms with an exception to the hearsay rule provided in these
ATTACKING AND SUPPORTING CREDIBILITY OF
When a hearsay statement,
or a statement defined in Rule 801(d)(2), (C), or (E), has been admitted in
evidence, the credibility of the declarant may be attacked and if attacked may
be supported, by any evidence which would be admissible for those purposes if
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.
ARTICLE IX. AUTHENTICATION
REQUIREMENT OF AUTHENTICATION OR
General provision. The
requirement of authentication or identification as a condition precedent to
admissibility is satisfied by evidence sufficient to support a finding that the
matter in question is what its proponent claims.
Illustrations. By way
of illustration only, and not by way of limitation, the following are examples
of authentication or identification conforming with the requirements of this
(1) Testimony of witness with knowledge. Testimony
that a matter is what it is claimed to be.
(2) Nonexpert opinion on handwriting. Nonexpert
opinion as to the genuineness of handwriting, based upon familiarity not
acquired for purpose of the litigation.
(3) Comparison by trier or expert witness. Comparison
by the trier of fact or by expert witnesses with specimens which have been
(4) Distinctive characteristics and the like.
Appearance, contents, substance, internal patterns, or other distinctive
characteristics, taken in conjunction with circumstances.
(5) Voice identification. Identification of voice,
whether heard firsthand or through mechanical or electronic transmission or
recording, by opinion based upon hearing the voice at any time under
circumstances connecting it with the alleged speaker.
(6) Telephone conversations. Telephone conversations,
by evidence that a call was made to the number particular person or business, if
(A) in the case of a person, circumstances, including self-identification,
show the person answering to be the one called, or (B) in the case
of a business, the call was made to a place of business and the conversation
related to business reasonably transacted over the telephone.
(7) Public records or reports. Evidence that a
writing authorized by law to be recorded or filed and in fact recorded or filed
in a public office, or a purported public record, report, statement, or data
compilation, in any form, is from the public office where items of this nature
(8) Ancient documents or data compilation. Evidence
that a document or data compilation, in any form, (A) is in such a
condition as to create no suspicion concerning its authenticity, (B)
was in a place where it, if authentic, would likely be, and (C) has been
in existence 20 years or more at the time it is offered.
(9) Process or system. Evidence describing a
process or system used to produce a result and showing that the process or
system produces an accurate result.
(10) Methods provided by statute or rule. Any
method of authentication or identification provided by Act of Congress or by
other rules prescribed by the Kosrae State Court pursuant to statutory
Extrinsic evidence of
authenticity as a condition precedent to admissibility is not required with
respect to the following:
Domestic public documents under
seal. A document bearing a seal purporting to be that of the
Federated States of Micronesia, or its predecessor political entities, or of any
State, municipality or political subdivision, department, officer, or agency
thereof, and a signature purporting to be an attestation or
Domestic public documents not
under seal. A document purporting to bear the signature in his
official capacity of an officer or employee of any entity included in paragraph
(1) hereof, having no seal, if a public officer having a seal and having
official duties in the district or political subdivision of the officer or
employee certifies under seal that the signer has the official capacity and that
the signature is genuine.
Foreign and international public
documents. A document purporting to be executed or attested in
his official capacity by a person authorized by the laws of a foreign country,
or regulations of an international governmental organization, to make the
execution or attestation, and accompanied by a final certification as to the
genuineness of the signature and official (A) of the executing or
attesting person, or (B) of any foreign or international official whose
certificate of genuineness of signature and official position relating to the
execution or attestation. If reasonable opportunity has been given to all
parties to investigate the authenticity and accuracy of official documents, the
court may, for good cause shown, order that they be treated as presumptively
authentic without final certification or permit them to be evidenced by an
attested summary with or without final certification.
Certified copies of public
records. A copy of an official record or report or entry
therein, or of a document authorized by law to be recorded or filed and actually
recorded or filed in a public office, including data compilations in any form,
certified as correct by the custodian or other person authorized to make the
certifications, by certificate complying with paragraph (1), (2), or (3) of this
rule or complying with any Act of Congress or rule prescribed by the Kosrae
State Court pursuant to statutory authority.
Books, pamphlets, or other publications purporting to be issued by
Newspaper and periodicals.
Printed materials purporting to be newspapers or
Trade inscriptions and the
like. Inscriptions, signs, tags, or labels purporting to have
been affixed in the course of business and indicating ownership, control, or
Documents accompanied by a certificate of acknowledgement executed
in the manner provided by law by a notary public or other officer authorized by
law to take acknowledgements.
Commercial paper and related
documents. Commercial paper, signatures thereon, and documents
relating thereto to the extent provided by general commercial
Presumptions under Acts of
Congress. Any signature, document, or other matter declared by
Act of Congress to be presumptively or prima facie genuine or
SUBSCRIBING WITNESS' TESTIMONY UNNECESSARY
The testimony of a
subscribing witness is not necessary to authenticate a writing unless
required by the laws of the jurisdiction whose laws govern the validity of the
ARTICLE X. CONTENTS OF
For purposes of this
article the following definitions are applicable:
Writings and recordings.
"Writings" and "recordings" consist of letters, words, or numbers,
or their equivalent, set down by handwriting, typewriting, printing,
photostating, photographing, magnetic impulse, mechanical or electronic
recording, or other form of data compilation.
"Photographs" include still photographs, X-ray films, Video
tapes, and motion pictures.
"original" of a writing or recording is the writing or recording itself or any
counterpart intended to have the same effect by a person executing or issuing
it. An "original" of a photograph includes the negative or any print
therefrom. If data are stored in a computer or similar device, any
print-out or other output readable by sight, shown to reflect the data
accurately, is an "original".
"duplicate" is a counterpart produced by the same impression as the original, or
from the same matrix, or by means of photography, including enlargements and
miniatures, or by mechanical or electronic re-recording, or by chemical
reproduction, or by other equivalent techniques which accurately reproduces the
REQUIREMENT OF ORIGINAL
To prove the content of a
writing, recording, or photograph, the original writing, recording, or
photograph is required, except as otherwise provided in these rules or by Act of
ADMISSIBILITY OF DUPLICATES
A duplicate is admissible
to the same extent as an original unless (1) a genuine question is raised as to
the authenticity of the original or (2) in the circumstances it would be unfair
to admit the duplicate in lieu of the original.
ADMISSIBILITY OF OTHER EVIDENCE OF
The original is not
required, and other evidence of the contents of a writing, recording, or
photographs is admissible if--
Originals lost or destroyed.
All originals are lost or have been destroyed, unless the proponent
lost or destroyed them in bad faith; or
Original not obtainable.
No original can be obtained by any available judicial process or
Original in possession of
opponent. At a time when an original was under the control of
the party against whom offered, he was put on notice, by the pleadings or
otherwise, that the contents would be a subject of proof at the hearing, and he
does not produce the original at the hearing; or
The writing, recording, or photograph is not closely related
to a controlling issue.
The contents of an official
record, or of a document authorized to be recorded or filed and actually
recorded or filed, including data compilations in any form, if otherwise
admissible, may be proved by copy, certified as correct in accordance with rule
902 or testified to be correct by a witness who has compared it with the
original. If a copy which complies with the foregoing cannot be obtained
by the exercise of reasonable diligence, then other evidence of the contents may
The contents of voluminous
writings, recordings, or photographs which cannot conveniently be examined in
court may be presented in the form of a chart, summary, or calculation.
The originals, or duplicates, shall be made available for examination or
copying, or both, by other parties at reasonable time and place. The court
may order that they be produced in court.
TESTIMONY OR WRITTEN ADMISSION OF PARTY
Contents of writings,
recordings, or photographs may be proved by the testimony or deposition of the
party against whom offered or by his written admission, without accounting for
the nonproduction of the original.
ARTICLE XI. MISCELLANEOUS
APPLICABILITY OF RULES
rules apply to proceedings of the Kosrae State Court of the Federated States of
Micronesia and to the actions of state judicial officers to the extent they are
acting in proceedings pursuant to the Federated States of Micronesia Kosrae
State Court Rules of Civil Procedure or Criminal Procedure and in other
proceedings to the extent set forth. The terms "judge" and "court" in
these rules include such state judicial officers.
These rules apply generally to civil proceedings, including
admiralty and maritime cases, to criminal proceedings, and to contempt
proceedings except those in which the court may act summarily.
Rules of privilege.
The rule with respect to privileges applies at all stages of all
actions, cases, and proceedings.
The rules (other than with respect to privileges) do not apply in
the following situations:
(1) Preliminary questions of fact. The
determination of questions of fact preliminary to admissibility of evidence when
the issue is to be determined by the court under rule 104.
(3) Miscellaneous proceedings. Proceedings for
extradition or rendition; preliminary examinations in criminal cases;
sentencing, or granting or revoking probation; issuance of warrants for arrest,
criminal summonses, and search warrants; and proceedings with respect to release
on bail or otherwise.
These rules may be known
and cited as the FSM Rules of Evidence.