Chapter 11-3 PRIVILEGES

CHAPTER 11-3
PRIVILEGES

11-3-1 Privileges Recognized.

Except as otherwise provided by the Constitution and By-laws or statute, including this Title, or rules promulgated by the Court of Appeals, no person has a privilege to:

(A) refuse to be a witness;

(B) refuse to disclose any matter;

(D) prevent another from being a witness or disclosing any matter or producing any object or writing.

11-3-2 Lawyer/Client Privilege.

(A) A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client.

(B) The privilege may be claimed by the client, his guardian or conservator or close relative who assists in obtaining legal representation, the personal representative of a deceased client, or the successor, trustee, or similar representative of a corporation, association, other organization, whether or not in existence. The person who was the lawyer or the lawyer’s representative at the time of the communication is presumed to have authority to claim the privilege on behalf of the client.

(1) If the services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud;

(2) As to a communication relevant to an issue between parties who claim through the same deceased client, regardless of whether the claims are by testate or intestate succession or by intervivos transaction;

(3) As to a communication relevant to an issue of breach of duty by the lawyer to his client or by the client to his lawyer;

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

(5) As to a communication relevant to a matter of common interest between or among two or more clients if the communication was made by any of them to a lawyer retained or consulted in common, when offered in an action between or among any of the clients or;

(6) As to communication between a public officer or agency and its lawyers unless the communication concerns a pending or contemplated investigation, claim, or action and the Court determines that disclosure will seriously impair the ability of the public officer or agency to process the claim or conduct a pending investigation, litigation, or proceeding in the public interest.

11-3-3 Patient/Physician Privilege.

(A) A patient has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of diagnosis or treatment of his physical, mental or emotional condition, including alcohol or drug addiction, among himself, his physical or psychotherapist, and persons who are participating in the diagnosis or treatment under the direction of the physician or psychotherapist, including members of the patient’s family.

(B) The privilege may be claimed by the patient, his guardian or conservator, or the personal representative of a deceased patient. The person who was the physician or psychotherapist at the time of the communication, and any other persons directly involved in treatment sessions, are presumed to have authority to claim the privilege but only on behalf of the patient.

(1) There is no privilege under this Section for communications relevant to an issue in proceedings to hospitalize the patient for mental illness, if the physician or psychotherapist in the course of diagnosis or treatment has determined that the patient is in need of hospitalization.

(2) If the Court orders an examination of the physical, mental or emotional condition of a patient, whether a party or a witness, communications made in the course thereof are not privileged under this Section with respect to the particular purpose for which the examination is ordered unless the Court orders otherwise.

(3) There is no privilege under this Section as to a communication relevant to an issue of the physical, mental or emotional conditions of the patient in any proceeding in which he relies upon the conditions as an element of his claim or defense or, after the patient’s death, in any proceeding in which any party relies upon the condition as an element of his claim or defense.

11-3-4 Husband and Wife Privilege.

There is no privilege under this Section in a proceeding for legal separation or divorce between the parties when the communication is relevant to the issues in the action for separate maintenance or divorce, or in which one spouse is charged with a crime against the person or property of:

(A) the other,

(B) a child of either,

Except in an action brought by the Tribe to protect a child subject to abuse, neglect, or other cause which is sufficient to maintain a juvenile court action, testimony received pursuant to this exception in an action for divorce or legal separation between the husband and wife may not be used or referred to in any other proceeding between either the husband or wife.

11-3-5 Religious Privilege.

(A) A person has a privilege to refuse to disclose and to prevent another from disclosing a confidential communication by the person to a clergyman in his professional character as spiritual adviser.

(B) The privilege may be claimed by the person, by his guardian or conservator, or by his personal representative if he is deceased. The person who was the clergyman at the time of the communication, is presumed to have authority to claim the privilege but only on behalf of the communicant.

11-3-6 Trade Secrets.

A person has a privilege, which may be claimed by him or his agent or employee, to refuse to disclose and to prevent other persons from disclosing a trade secret owned by him, if the allowance of the privilege will not tend to conceal fraud or otherwise work injustice. If disclosure is directed, the Court shall take such protective measures as the interest of the holder of the privilege and of the parties and the interests of justice require.

11-3-7 Governmental/Official Privileges.

(A) If the law of the United States creates a governmental privilege that the Courts of this Tribe must recognize under the Constitution and statutes of the United States, the privileges may be claimed as provided by the law of the United States. No other special governmental privilege is recognized except as created by the Constitution or statutes of the Tribe, including this Title.

(B) The following governmental privileges are recognized:

(1) Elected members of the Tribal Council have a privilege against disclosure of their mental processes and reasoning in the casting of any vote by them at a duly constituted meeting of that body, except in cases where it is alleged that unlawful influence or bribery or attempted bribery was involved in that vote. This privilege may be claimed only by the member and is waived if the member testifies as to such matters.

(2) Justices, Judges, and Magistrates have a privilege against disclosure of their mental processes and reasoning in the determination of any matter before them in any proceeding collateral to that matter, except in a collateral proceeding where it is alleged that unlawful influence or bribery or attempted bribery was involved in the underlying matter. The explanation and reasons for the decision of Judicial Officers which should appear on the record shall be sufficient. This Section shall not preclude the Court of Appeals of the Tribe from remanding an action to a Judge or Magistrate for further findings of fact or conclusions of law in order to obtain an adequate record for review or to determine all issues necessary to a decision in a case.

(3) Tribal officers charged with the institution of legal proceedings before any agency of the Tribe or the Tribal Courts to enforce tribal law have a privilege against disclosure of their mental processes and reasoning in the determination of any matter brought before them for a decision as to whether or not to institute such legal proceedings.

(C) If a claim of governmental privilege is sustained and it appears that a party is thereby deprived of material evidence, the court shall make any further orders the interests of justice require, including striking the testimony of a witness, declaring a mistrial, finding the Government upon an issue as to which the evidence is relevant, or dismissing the action.

11-3-8 Waiver of Privilege.

(A) A person upon whom this Chapter confers a privilege against disclosure waives the privilege if he or his predecessor while holder of the privilege voluntarily discloses or consents to disclosure of any significant part of the privileged matter. This Section does not apply if the disclosure itself is privileged.

(B) A claim of privilege is not defeated by a disclosure which was:

(1) compelled erroneously, or

(2) made without opportunity to claim the privilege.

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

(D) In jury cases, proceedings shall be conducted, to the extent practicable, so as to facilitate the making of claims of privilege without the knowledge of the jury.

(E) 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.