Chapter 2

COL1201066GCA EVIDENCE DIV.2PRINCIPLES OF EVIDENCE CH.2THE GENERAL PRINCIPLES OF EVIDENCE 1CHAPTER 2 THE GENERAL PRINCIPLES OF EVIDENCE § 2501. One Witness Sufficient. § 2502. Testimony to be in Presence of Persons Af fected. § 2503. Witness Presumed to Speak the Truth. § 2504. Rights of One Not Affected by Another . § 2505. Declarations of Predecessor in Title Evidence. § 2506. Declarations Which Are a Part of the Transac tion. § 2507. Evidence Relating to Third Persons. § 2508. Declaration of Decedent Evidence in Pedigree. § 2509. Declaration of Decedent Evidence Against His Successor in Interest. § 2510. Proof of Contents of Lost Public Records . § 2511. An Agreement Reduced to Writing Deemed the Whole. § 2512. Construction of Language Relates to Place Where Used. § 2513. Construction of Laws and Instruments ; General Rule. § 2514. The Intention of the Parties. § 2515. The Circumstances to be Considered. § 2516. Terms to be Considered in Their General Accepta tion. § 2517. Written W ords Control Printed W ords in Blank Forms. § 2518. Persons Skilled May Testify to Decipher Charac ters. § 2519. Of Two Constructions, Which Preferred. § 2520.

General Accepta tion. § 2517. Written W ords Control Printed W ords in Blank Forms. § 2518. Persons Skilled May Testify to Decipher Charac ters. § 2519. Of Two Constructions, Which Preferred. § 2520. Written Instrument Construed as Understood by the Parties. § 2521. Construction of Natural Right Preferred. § 2522. Material Allegation Only to be Proved. § 2523. Affirmative Only to be Prove d. § 2524. Material Objects. § 2501. One Witness Sufficient. The direct evidence of one witness who is entitled to full credit is sufficient for proof of any fact, ex cept in those in stances spe cifically provided for in Title 8, Chapter 95 of this Code (Criminal Pro cedure). SOURCE: CCP §§ 1844, as modified. COMMENT :Chapter 95 of Title 8 (Criminal Procedure) provides ex ceptions to the general rules applicable to criminal cases, in cluding the requirements for more than one witness to prove par ticular facts (8 GCA § 95.20). § 2502. T estimony to be in Presence of Persons Af fected.COL1201066GCA EVIDENCE DIV.2PRINCIPLES OF EVIDENCE CH.2THE GENERAL PRINCIPLES OF EVIDENCE 2A wit ness can b e heard only in the presence and subject to the exam - ination of all the parties, if they choose to attend

IDENCE DIV.2PRINCIPLES OF EVIDENCE CH.2THE GENERAL PRINCIPLES OF EVIDENCE 2A wit ness can b e heard only in the presence and subject to the exam - ination of all the parties, if they choose to attend and examine. SOURCE : CCP § 1846. CROSS -REFERENCES: See § 804.1 of this Chapter relative to child witnesses and their protection. § 2503. Witness Presu med to Speak the T ruth. A wit ness is presumed to speak the truth. This pre sumption, how ever, maybecontradicted by the manner in which he testifies, by the character of his testimony , or by the evide nce affecting his char acter for truth, honesty or integrity , or his motives, or by contradictory evi dence, and the judge or jury , as the case may be, is the exclusive judge of his credi bility . SOURCE: CCP § 1847, as modified. COMMENT : This Section, as a general statement, will be governed by the specific provisions of Div . 1, Art. 6 -Witnesses. This Section has been modified to refer to both the judge and jury as exclusive determiners of the credibil ity of the witnesses each hears. CCP § 1847 was enact ed prior to the existence of jury trials on Guam and, to be con sistent with current law, must be modified to reflect juries.

ers of the credibil ity of the witnesses each hears. CCP § 1847 was enact ed prior to the existence of jury trials on Guam and, to be con sistent with current law, must be modified to reflect juries. § 2504. Rights of One Not Affected by Another . The rights of a party cannot beprejudiced by the declara tion, act or omission of another , except by virtue of a par ticular relation be tween them; therefore, proceedings against one cannot affect the another . SOURCE: CCP § 1848. CROSS -REFERENCE: JuryInstructions for Interpretatio n of this Section found in Div. 1 § 105. § 2505. Declarations of Predecessor in Title Evidence. Where, however, one derives title to real property from another , the declaration, act or omission of the latter, while holding the title, in relation to the property , is evidence against the former . SOURCE: CCP § 1849. § 2506. Declarations Which Are a Part of the T ransac tion. Where, also, the declaration, act or omission forms a part of a transaction, which is itself the fact in dispute or evidence of that fact, such declaration, act or omission is evidence, as part of the transaction.

he declaration, act or omission forms a part of a transaction, which is itself the fact in dispute or evidence of that fact, such declaration, act or omission is evidence, as part of the transaction. SOURCE: CCP § 1850.COL1201066GCA EVIDENCE DIV.2PRINCIPLES OF EVIDENCE CH.2THE GENERAL PRINCIPLES OF EVIDENCE 3CROSS -REFERENCE: See Div. 1 §§ 803-806 for Rules governing the ad mission of this type of evidence as, where applicable, exceptions to the hearsay rule. § 2507. Evidence Relating to Third Persons. And where the question in dispute between the parties is the obligation or duty of a third person, whatever would be the evidence for or against such person is prima facie evidence between the parties. SOURCE: CCP § 1851. § 2508. Declaration of Decedent Evidence in Pedigree. The declaration, act or omission of a member of a family who is a decedent or out of the jurisdiction, is also admissi ble as evidence of common reputation, in cases where, on questions of pedigree, such reputation is admissible. SOURCE: CCP § 1852. CROSS -REFERENCE: See Div. 1 § 803(19) for exclusion of this type of evidence from the hearsay rule. § 2509.

cases where, on questions of pedigree, such reputation is admissible. SOURCE: CCP § 1852. CROSS -REFERENCE: See Div. 1 § 803(19) for exclusion of this type of evidence from the hearsay rule. § 2509. Declaration of Decedent Evidence Against His Successor in Interest. The declaration, act or omission of a decedent, having sufficient knowledge of the subject, against his pecuniary interest, is also ad missible as evidence to that extent against his successor in interest. SOURCE: CCP § 1853. § 2510. Proof of Contents of Lost Public Records . When, in any action, it is desired to prove the contents of any public record or document lost or destroyed by conflagra tion or other public calamity and, after such proof of such loss or destruction, there is offered in proof of such con tents: (a) Any abstract of title made and issued and certi fied as correct prior to such loss or destruction, and purporting to have been prepar ed and made in the ordin ary course of business by any person, firm or corporation engaged in the business of preparing and making abstracts of title prior to such loss or destruc tion; or (b) Any abstract of title or any instrument affecting title, made, issued and

or corporation engaged in the business of preparing and making abstracts of title prior to such loss or destruc tion; or (b) Any abstract of title or any instrument affecting title, made, issued and certified as correct by any person, firm or cor poration engaged in the business of insuring titles to real estate, whether the same was made, issued or certified before or after such loss or destruction, and whether the same was made from the original records COL1201066GCA EVIDENCE DIV.2PRINCIPLES OF EVIDENCE CH.2THE GENERAL PRINCIPLES OF EVIDENCE 4or from abstracts and notes or either, taken from such records in the preparation of and upkeep of its, or his, plant in the ordinary course of business, the same may , without fur ther proof, be admitted as evidence for the purpose aforesa id. No proof of the loss of the original document or instrument shall be required other than the facts that the same is not known to the party desiring to prove its contents to be in existence; provided, never theless, that any party so desiring to use sa id evidence shall give reason able notice in writing to all other parties to the action who have ap peared therein, of his attention to use the same

ever theless, that any party so desiring to use sa id evidence shall give reason able notice in writing to all other parties to the action who have ap peared therein, of his attention to use the same in the trial of said action, and shall give all such other parties a reasonable opportunity to inspect the same, and also the abstracts, memoranda or notes from which it was compiled, and to make copies thereof. SOURCE: CCP § 1855a. COMMENT :While Division 1 generally covers the issue of lost docu ments, the Legislature believes that this specific section shoul d be retained because it covers not generally addressed in that Division, and which circumstances have occurred on Guam. § 2511. An Agreement Reduced to Writing Deemed the Whole. When the terms of an agreement have been reduced to writing by the parties, it is to be considered as contain ing all those terms, and there fore there can be between the parties and their representatives, or suc cessors in interest, no evi dence of the terms of th e agreement other than the contents of the writing, except in the following cases: 1. Where a mistake or imperfection of the writing is put in issue bythe pleadings; or 2.

vi dence of the terms of th e agreement other than the contents of the writing, except in the following cases: 1. Where a mistake or imperfection of the writing is put in issue bythe pleadings; or 2. Where the validity of the agreement is the fact in dis pute. But this Section does not exclude other evidence of the circum stances under which the agreement was made or to which it relates, as defined in § 2515 [Circumstances to be Consid ered], or to explain an ex trinsic ambiguity , or to establish illegality or fraud. The term agree ment includes deeds and wills, as well as contracts between parties. SOURCE: CCP § 1856. COURT DECISIONS: See McNamara v . Jones & Guerrero Co.., 417 F .2d 1188 (1969) for a determination that this Section prevented parol evidence to be introduced to modify a written contract. COMMENT :This is the classic Parol Evidence Rule. This Rule is not contained in Division 1, nor in the Federal Rules of Evidence.COL1201066GCA EVIDENCE DIV.2PRINCIPLES OF EVIDENCE CH.2THE GENERAL PRINCIPLES OF EVIDENCE 5§ 2512. Construction of Language Relates to Place Where Used. The language of a writing is to be interpreted according to the meaning it bears in the place of its

2THE GENERAL PRINCIPLES OF EVIDENCE 5§ 2512. Construction of Language Relates to Place Where Used. The language of a writing is to be interpreted according to the meaning it bears in the place of its execu tion, unless the parties have reference to a different place. SOURCE: CCP § 1857. § 2513. Construction of Laws and Instrum ents; General Rule. In the construction of a law or instrument, the office of the judge or jury, as the case may be, is simply to ascertain and declare what is in terms or in substance c ontained therein, not to insert what has been omitted, or to omit what has been inserted, and where there are several provisions or particulars, such a construction is, if possible, to be adopted as will affect all. SOURCE: CCP § 1858. COMMENT :Reference t o juries is added. It is under stood that construc tion of the law remains with the judge (§ 2118 of this Di vision). However, other instruments can be subject to jury inter pretation. § 2514. The Intention of the Parties. In the construction of an instrument, the intention of the parties is to be pursued, if possible; and when a general and particular provision are inconsistent, the latter is paramount to the former .

In the construction of an instrument, the intention of the parties is to be pursued, if possible; and when a general and particular provision are inconsistent, the latter is paramount to the former . So a particu lar intent will control a gene ral one that is inconsistent with it. SOURCE: CCP § 1859. § 2515. The Circumstances to be Considered. For the proper construction of an instrument, the circum stances under which it is made, including t he situation of the subject of the instrument and of the parties to it, may also be shown so that the judge or jury be placed in the position of those whose language he is or they are to interpret. SOURCE: CCP § 1860, modified to reflect juries. § 2516. T erms to be Considered in Their General Accepta tion. The terms of a writing are presumed to have been used in their pri mary and general acceptation, but evidence is never theless admiss ible that they have a local, technical or otherwise particular significance, and where so used and understood in the particular instance, in which case the agreement must be construed accordingly . SOURCE: CCP § 1861.COL1201066GCA EVIDENCE DIV.2PRINCIPLES OF EVIDENCE CH.2THE GENERAL PRINCIPLES OF EVIDENCE 6§

in the particular instance, in which case the agreement must be construed accordingly . SOURCE: CCP § 1861.COL1201066GCA EVIDENCE DIV.2PRINCIPLES OF EVIDENCE CH.2THE GENERAL PRINCIPLES OF EVIDENCE 6§ 2517. Written W ords Control Printed Words in Blank Forms. When an instrument consists partly of written words and partly of a printed form, and the two are inconsistent, the former controls the latter . SOURCE: CCP § 1862. CROSS -REFERENCE. 13 GCA § 1205 (UCC) , Course of Dealing and Usage of Trade . See also 13 GCA § 3118 (UCC) relative to Com mercial Paper . § 2518. Persons Skilled May T estify to Decipher Charac ters. When the characters in which an instrument is written are difficult to decipher , or the language of the instrument is not understood by the court, the evidence of persons skilled in deciphering the characters or who understand the language, is admissible to declare the characters or the meaning of the language. SOURCE: CCP § 1863. CROSS -REFERENCE: See Div . 1 § 604, for the Rule govern ing Inter preters. § 2519. Of T wo Constructions, Which Preferred. When the terms of an agreement have been intended in a differ ent sense by the different parties to it, that sense

r the Rule govern ing Inter preters. § 2519. Of T wo Constructions, Which Preferred. When the terms of an agreement have been intended in a differ ent sense by the different parties to it, that sense is to prevail against either party in which he supposed the other understood, and when dif ferent constructions of a provi sion a re otherwise equally proper, that is to be taken which is most favorable to the party in whose favor the pro vision was made. SOURCE: CCP § 1864. § 2520. Written Instrument Construed as Understood by the Parties. A wr itten instrument, as well as every other writing, is to be con strued according to the ordinary acceptation of its terms. Thus a notice to the drawers or indorsers of a bill of exchange or promissory note, that it has been protested for want of acceptance or payment, must be held to import that the same has been duly presented for acceptance or payment and the same refused, and that the holder looks for payment to the person to whom the notice is given. SOURCE: CCP § 1865. CROSS -REFERENCE: 13 GCA § 3508, § 3509 and § 3510 (UCC) provide the specific law dealing with notices and protest of commercial paper.

to the person to whom the notice is given. SOURCE: CCP § 1865. CROSS -REFERENCE: 13 GCA § 3508, § 3509 and § 3510 (UCC) provide the specific law dealing with notices and protest of commercial paper. 13 GCA § 3510 gives specific examples of admissible evi dence. § 2521. Construction of Natural Right Preferred.COL1201066GCA EVIDENCE DIV.2PRINCIPLES OF EVIDENCE CH.2THE GENERAL PRINCIPLES OF EVIDENCE 7When a law or instrument is equally susceptible of two inter pretations, one in favor of a natural right, and the other against it, the former is to be adopted. SOURCE: CCP § 1866. § 2522. Material Al legation Only to be Proved. None but a material allegation need be proved. SOURCE: CCP § 1867. § 2523. Affirmative Only to be Proved. Evidence need not begiven in support of a negative allegation, except when such negative allegation is an essential of the state ment of the right or title on which the cause of action or defense is founded, nor even in such case when the allegation is a denial of the exis tence of a document, the cus - tody of which belongs to the opposite party . SOURCE: CCP § 1867. NOTE: Former CCP § 1870 permits the admission of many types of evi dence.

tion is a denial of the exis tence of a document, the cus - tody of which belongs to the opposite party . SOURCE: CCP § 1867. NOTE: Former CCP § 1870 permits the admission of many types of evi dence. This subject matter is contained throughout Div . 1 and, therefore, is omitted here. S ee Gaspard & Co. v . GovGuam, 427 F .2d 276 (1980) regarding a declaration of a litigant as an ad mission. § 2524. Material Objects. Whenever an object, cognizable by the senses, has such a relation to the facts in dispute as to afford reasonable grounds for belief res pecting them, or to make an item in the sum of evidence, such object may be exhibited to the judge or jury or its existence, situation or char acter may be proved by wit nesses. SOURCE: CCP § 1954. -------- --