Chapter 3

COL1201066GCA EVIDENCE DIV.2PRINCIPLES OF EVIDENCE CH.3WITNESSES 1CHAPTER 3 WITNESSES Article 1. Witnesses Generally . Article 2. Administration of Oaths and Affirmations. ARTICLE 1 WITNESSES GENERALL Y § 3101. Persons Who Cannot Testify . § 3102. Confidential Communications. § 3103. Subpoenaed Witnesses Bound to Attend. § 3104. Witnesses Bound to Answer Questions. § 3105. Right of Witnesses to Protection. § 3106. Witnesses Protected From Arrest. § 3107. Arrest V oid and Arresting Party Liable. § 3108. Affidavit Required If Arrested. § 3109. Court May Discharge Witness From Arrest. § 3101. Persons Who Cannot T estify. A person is disquali fied to be a witness if he is: 1. Incapable of expressing himself concerning the matter so as to be understood, either directly or through interpre tation by one who can under stand him; or 2. Incapab le of understanding the duty of a witness to tell the truth. SOURCE: Calif. Evidence Code § 701. Contrast Guam CCP § 1880. COMMENT :Section 601 (Div . 1) of this Title gives the general rule. The Federal Rules refer this matter to the states. There fore som e guidance is needed for Guam. Guam CCP § 1880 is anti quated.

. COMMENT :Section 601 (Div . 1) of this Title gives the general rule. The Federal Rules refer this matter to the states. There fore som e guidance is needed for Guam. Guam CCP § 1880 is anti quated. A number of attorneys have asked that the 'Dead Man's Statute' be repealed. This was a part of former 1880 and contain ed limitations on testimony regarding transactions between the witnessed a nd a deceased party . California repealed this long ago. Additionally , this Section follows California in removing lower age limits on wit nesses, making sure only that they know and under - stand their duty to tell the truth regard ing an event. § 3102. Con fidential Communications. There are particular relations in which it is the policy of the law to encourage confidence and to preserve it inviolate. There fore, a person cannot be examined as a witness as to mat ters which are privil eged. The general classes of privilege are stated in 503 of Division 1 of this Title. This COL1201066GCA EVIDENCE DIV.2PRINCIPLES OF EVIDENCE CH.3WITNESSES 2Section provides the principles underlying the priv ileges stated in 503 of this Title: 1.

d in 503 of Division 1 of this Title. This COL1201066GCA EVIDENCE DIV.2PRINCIPLES OF EVIDENCE CH.3WITNESSES 2Section provides the principles underlying the priv ileges stated in 503 of this Title: 1. A husband cannot be examined for or against his wife without his consent, nor a wife for or against her husband without her consent; nor can either during the marriage or afterward, without the wit ness's consent, be examined as to any communication made by one to the other during the marriage. 2. An at torney cannot, without the consent of his client, be examined as to any communication made by the client to him, or his advice given thereon in the course of profes sional employment, nor can any attorney's secretary, steno grapher or clerk be exam ined without the consent of the employer, con cerning any fact the know - ledge of which has been acquired in such capacity. 3. Aclergyman or priest cannot, without the consent of the pe rson making the con fession, be examined as to any confes sion made to him inhis professional character in the course of discipline enjoined by the church to which he belongs. 4.

he consent of the pe rson making the con fession, be examined as to any confes sion made to him inhis professional character in the course of discipline enjoined by the church to which he belongs. 4. Alicensed physician or surgeon cannot, without the con sent of the patient, be exam ined in a civil action as to any infor mation acquired in at tending the patient, which was neces saryto enable him to prescribe or act for the patient, provided, how ever, that either be fore or after probate, upon the contest of any will executed, or claimed to have been executed, by such patient or after the death of s uch patient, in any action involving the validity of any instrument executed or claimed to have been executed, by him, conveying or transferring any real or personal pro perty , such physician or surgeon may testify to the mental condition of said patient and in so testifying may disclose informa tion acquired by him concerning said deceased which is necessary to enable him to prescribe or act for such deceased; provided, fur ther, that after the death of the patient, the execu tor of his will or the admini strator of his estate, or the surviving spouse of the deceased or , if there

or act for such deceased; provided, fur ther, that after the death of the patient, the execu tor of his will or the admini strator of his estate, or the surviving spouse of the deceased or , if there be no surviving spouse, the children of the deceased per sonally , or if minors bytheir guardian, may give their consent, in any action or proceeding brought to recover damages on account of the death of the patient; pro - vided, further, that where any person brings an action to recover damages for per sonal injuries, such action shall be deemed to constitute a consent by the person bringing such action that any physician or surgeon who has pre scribed for or treated said person and whose testimony is material in said action shall testify; and provided, COL1201066GCA EVIDENCE DIV.2PRINCIPLES OF EVIDENCE CH.3WITNESSES 3further , that the bringing of an action to recover for the death of a patient, by the executor of his will, or by the adminis trator of his estate, or by the surviving spouse of the deceased, or if there by no surviving spouse by the children personally or , if minors, by their guardian(s), shall be deemed consent to the testimony of any phy sician or surgeon who

g spouse of the deceased, or if there by no surviving spouse by the children personally or , if minors, by their guardian(s), shall be deemed consent to the testimony of any phy sician or surgeon who attended said deceased. 5. Apublic officer cannot be examined as to communi cations made to him in official confidence, when the public interest would suffer by its disclosure. Any determination of whether or not such communica tions should be, in fact, dis closed, shall be made bythe court or judge thereof hearing the case, sitting in camera. No matter sought to be disclosed may be ordered by the court to be disclosed until a period of five (5) days has elapsed, during which the interested parties may appeal. If an appeal is ti mely taken, no dis closure may be ordered until the appeal is disposed with in favor of the party seeking disclosure. SOURCE: CCP § 1881, modified. COURT DECISIONS : See People v . Santos, Superior Court Cr. #86F -79 (8/20/80) in which the Court interpreted §503 of Div. 1 in accor dance with the latest Federal inter - pretation of the marital privilege. This Section has been changed to reflect both § 503 and the Santos case. COMMENT :1.

ourt interpreted §503 of Div. 1 in accor dance with the latest Federal inter - pretation of the marital privilege. This Section has been changed to reflect both § 503 and the Santos case. COMMENT :1. Subsection 1 has been materially changed from the rule at Common Law. At Common Law the non -witness spouse shared the privilege so that he or she could forbid the testimony of the witness -spouse in priv ileged areas. This Subsection and 503, and the U.S. Supreme Court have all decided that the privilege should be reduced to tha t of the witness -spouse only . Thus, if the witness -spouse desires to testify about marital affairs, he or she may without obtaining the consent of the other spouse. The courts now believe that if one spouse is willing to testify against the other , the marr iage is in such a bad shape that it is beyond the protection of the priv ilege. 2. Section 504 of Div . 1 states that claims of privilege are to be governed by the principles of the common law as they may be interpreted by the Superior Court of Guam in ligh t of reason and experience.' Therefore, the Commission is conti nuing the defini tion of privileges as contained in prior law, modified only where

be interpreted by the Superior Court of Guam in ligh t of reason and experience.' Therefore, the Commission is conti nuing the defini tion of privileges as contained in prior law, modified only where needed to conform with Division 1 and with clarity . 3. CCP § 1881 contains the first sentence of Subpara graph 5 of this Section dealing with government privilege. The Attorney General has suggested that at least procedures be stated to guide the court in determining when to use the privilege. Therefore, the remainder of the Subparagraph is added to provide for in camera hearings and no disclosure until after appeals have ended. To pro vide otherwise would be to moot the possibility of appeal. How ever, no further guidelines are added to restrict the privilege since this language has existed in the Code from its Guam beginnings with no detriment to the public wel fare. COL1201066GCA EVIDENCE DIV.2PRINCIPLES OF EVIDENCE CH.3WITNESSES 44. No definition of psychotherapist -patient privilege is added here. California law contains a multitude of definitions and more exceptions. Considering the state of the art on Guam, the Com mission thought it wise to leave the definition of this

vilege is added here. California law contains a multitude of definitions and more exceptions. Considering the state of the art on Guam, the Com mission thought it wise to leave the definition of this privilege up to the court 'in light of reason and experience,' and that not just from California. § 3103. Subpoenaed Witnesses Bound to Attend. A wit ness, served with a subpoena, must attend at the time ap pointed, with any papers under his control lawfully required by the subpoena and answer pertinent and legal questions, and, unless sooner dis charged, must remain until the testimony is closed. SOURC E:CCP § 2064. § 3104. Witnesses Bound to Answer Questions. A wit ness must answer questions legal and pertinent to the matter in issue, though his answer may establish a claim against himself, but he n eed not give an answer which will have a tendency to subject him to punishment for a crime, nor need he give an answer which will have a direct tendency to degrade his character , unless his be the very fact in issue, or to a fact from which the fact in iss ue will be presumed. What a witness must answer as to the fact of his previous conviction for a felony , if ordered by the judge

his be the very fact in issue, or to a fact from which the fact in iss ue will be presumed. What a witness must answer as to the fact of his previous conviction for a felony , if ordered by the judge shall be governed by Division 1 of this Title. SOURCE: CCP § 2065, modified. CROSS -REFERENCE : § 609 of this Title. COMMENT :This Section has been changed to refer to the control ling portions of Division 1 and to the full scope of the Fifth Amend ment Privilege, which protects a person from incriminating himself not only in cases of possible felonies, but also in all other crimina l cases. § 3105. Right of Witnesses to Protection. It is the right of a witness to be protected from irrele vant, im proper or insulting questions, and from harsh or insulting demeanor; to be detained only so long as the interests of justice require it; to be examined only as to matters legal and pertinent to the issue. SOURCE: CCP § 2066. COMMENT :9 GCA § 52.50 (Crimes and Corrections) pro vides the crim inal penalty for tampering with witnesses. § 3106. Witnesses Protected From Arrest. Every person who has been, in good faith, served with a sub poena to attend as a witness before a court, judge, commis

l penalty for tampering with witnesses. § 3106. Witnesses Protected From Arrest. Every person who has been, in good faith, served with a sub poena to attend as a witness before a court, judge, commis sioner , referee or other COL1201066GCA EVIDENCE DIV.2PRINCIPLES OF EVIDENCE CH.3WITNESSES 5person, in a case where the di sobedi ence of the witness may be pun ished as a contempt, is exoner ated from arrest in a civil action while going to the place of attendance and necessarily remaining there, and returning therefrom. SOURCE: CCP § 2067. § 3107. Arrest V oid and Arresting P arty Liable. The arrest of a witness, contrary to the preceding Sec tion, is void, and, when wilfully made, is a contempt of the court, and the per son making it is responsible to the witness arrest ed for double the amount of the damages which may be assessed against him, and is also liable to an action at the suit of the party serving the witness with the subpoena, for the damages sustained by him in consequence of the arrest. SOURCE: CCP § 2068. §3108. Affidavit Required If Arrested. An officer is not liable to a party for making the arrest in ig norance of the facts creating the exoneration, but is liable

of the arrest. SOURCE: CCP § 2068. §3108. Affidavit Required If Arrested. An officer is not liable to a party for making the arrest in ig norance of the facts creating the exoneration, but is liable for any subse quent detention of the part y,if such party claims the exemp tion, and makes an affidavit stating: 1. That he has been served with a subpoena to attend as a witness before a court, officer or other person, speci fying the same, the place of attendance, and the action or proceeding i n which the subpoena was issued; 2. That he has not thus been served by his own procure ment, with the intentions of avoiding arrest; and 3. That he is at the time going to the place of atten dance or returning therefrom, or remaining there in obedience to the sub poena. The affidavit may be taken by the officer , and exoner ates him from liability for discharging the witness when arrested. SOURCE: CCP § 2069. § 3109. Court May Discharge Witness From Arrest. The court or officer before whom the attendance is re quired may dis - charge the witness from an arrest made in vio lation of 3107. If the court has adjourned before the arrest, or before applica tion for the dis charge, a judge of the

attendance is re quired may dis - charge the witness from an arrest made in vio lation of 3107. If the court has adjourned before the arrest, or before applica tion for the dis charge, a judge of the court may g rant the discharge. SOURCE: CCP § 2070.COL1201066GCA EVIDENCE DIV.2PRINCIPLES OF EVIDENCE CH.3WITNESSES 6---------- ARTICLE 2 ADMI NISTRA TION OF OATHS AND AFFIRMA TIONS § 3201. Officers Authorized to Administer Oaths. § 3202. Form of Oath. § 3203. Form May V ary to Suit Witness' Belief. § 3204. Witnesses of Non -Christian Belief. § 3201. Officers Authorized to Administer Oaths. Every court, every judge or clerk of any court, every justice and every notary public, and every officer or person authorized to take testimon y in an action or proceeding, or to decide upon evidence, has power to administer oaths or affir mations. SOURCE: CCP § 2092. § 3202. Form of Oath. An oath or affirmation, in an action or proceeding, may be adminis - tered as f ollows; the person who swears or affirms expressing his assent when addressed in the following form: 'You do solemnly swear (or affirm, as the case may be) that the evi - dence you shall give in this issue (or matter) pending between

ffirms expressing his assent when addressed in the following form: 'You do solemnly swear (or affirm, as the case may be) that the evi - dence you shall give in this issue (or matter) pending between __________ and _________ _ shall be the truth, the whole truth, and nothing but the truth, (so help you God).' SOURCE: CCP § 2094, modified grammatically only . CROSS -REFERENCES: See 5 GCA Chapter 34 for the current law on Notaries Public, the form of oaths, acknowledgments and oth er matters . § 3203. Form May V ary to Suit Witness' Belief. Whenev er the court before which a person is offered as a witness is satisfied that he has a particular mode of swearing connected with or in addition to the usual form of adminis tration, which, in his opinion, is more solemn or obligatory , the court may , in its discretion, adopt that mode. SOURCE: CCP § 2095. § 3204. Witnesses of Non -Christian Belief.COL1201066GCA EVIDENCE DIV.2PRINCIPLES OF EVIDENCE CH.3WITNESSES 7When a person is sworn who believes in any other than the Christ ian religion, he may be sworn according to the peculiar ceremony of his religion, if there be any such. SOURCE: CCP § 2096. ----------