TRIAL DIVISION OF THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
As of December 2, 1991
ARTICLE I. GENERAL PROVISIONS
These rules govern proceedings in the Supreme Court of the Federated States of Micronesia and before state judicial officers acting on matters within the jurisdiction of the Supreme Court of the Federated States of Micronesia pursuant to the Federated States of Micronesia Supreme 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 oneexcluding 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 from.
(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 ACTIONS AND PROCEEDINGS
In all civil actions and proceedings not otherwise provided for by Act of Congress 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, by Act of Congress, by these rules, or by other rules prescribed by the Chief Justice pursuant to Article XI of the Constitution. 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 persons'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 provide 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 or opinion. In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct.
(b) Specific instances of conduct. In cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of his conduct.
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 eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.
SUBSEQUENT REMEDIAL MEASURES
When, after an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence of the subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.
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 because 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 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 DISCUSSIONS,
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) a plea of guilty
which was later withdrawn;
(b) a plea of nolo
(c) 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 plea;
(d) 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
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
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
(1) admitted in accordance with subdivision (c) and is
constitutionally required to be admitted; or
(2) admitted in accordance with subdivision (c) and is
(A) 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;
(B) 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
(c) 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
(d) For purposes 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
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 Law.
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 him.
EVIDENCE OF CHARACTER AND CONDUCT OF
(a) 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
(b) Specific instances of conduct. Specific instances
of the conduct of a witness, for the purpose of attacking or supporting his
credibility, other than conviction of crime as provided 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 testified.
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
(a) General rule. 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 punishment.
(b) Time limit. 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 evidence.
(c) Effect of pardon, annulment, or certificate of
Evidence of a conviction is
not admissible under this rule if (1) the conviction has been the subject of a
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
(d) Juvenile adjudications. 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
(e) 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 admissible.
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
(a) 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
(b) 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
(c) Leading questions. Leading questions should not be
used on the direct examination of a witness except as may be necessary to
develop his testimony. Ordinarily leading questions should be permitted on
cross-examination. When a party calls a hostile witness, an adverse party,
or a witness identified with an adverse party, interrogation may be by leading
WRITING USED TO REFRESH MEMORY
If a witness uses a writing
to refresh his memory for the purpose of testifying, either --
(1) while testifying,
(2) before testifying,
if the court in its discretion determines it is necessary in the interest 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
(a) Examining witness concerning prior statement. In
examining a witness concerning a prior statement made by him, whether written or
not, the statement need not be shown nor its contents disclosed to him at that
time, but on request the same shall be shown or disclosed to opposing
(b) Extrinsic evidence of prior inconsistent statement of
witness. Extrinsic evidence of a prior inconsistent statement by a
witness is not admissible unless the witness is afforded an opportunity to
explain or deny the same and the opposite party is afforded an opportunity to
interrogate him thereon, or the interests of justice otherwise require.
This provision does not apply to admissions of a party-opponent as defined
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.
(b) Interrogation by court. The court may interrogate
witnesses, whether called by itself or by a party.
(c) Objections. Objections 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 present.
EXCLUSION OF WITNESSES
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.
ARTICLE VII. OPINIONS AND
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
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
(a) 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 witnesses 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
(b) Compensation. Expert 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 other costs.
(d) Parties' experts of own selection. Nothing in this
rule limits the parties in calling expert witnesses of their own
The following definitions
apply under this article:
(a) Statement. A "statement" is (1) an oral or written
assertion or (2) nonverbal conduct of a person, if it is intended by him as an
(b) Declarant. A "declarant" is a person who makes a
(c) 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 asserted.
(d) Statements which are not hearsay. A statement is
not hearsay if--
(1) Prior statement by
witness. The declarant testifies at the trial or hearing and is
subject to cross-examination concerning the statement, and the statement 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
(2) 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 co 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
HEARSAY EXCEPTIONS; AVAILABILITY OF
The following are not
excluded by the hearsay rule, even though the declarant is available as a
(1) Present sense impression. A statement describing
or explaining an event or condition made while the declarant was perceiving the
event or condition, or immediately thereafter.
(2) Excited utterance. A statement relating to a
startling event or condition made while the declarant was under the stress of
excitement caused by the event or condition.
(3) 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
(4) 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
(5) Recorded recollection. 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 correctly.
(6) Records of regularly conducted activity. A
memorandum, report, record, or data compilation, in any form, of acts, events,
conditions, opinions, or diagnoses, made at or near the time of, 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 memorandum, 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 trust-worthiness. The term "business" as used
in this paragraph includes business, institution, association, profession,
occupation, and calling of every kind, whether or not conducted for
(7) 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 memorandum,
report, record, or data compilation was regularly made and preserved unless the
sources of information or other circumstances indicate lack of
(8) Public records and reports. Records, reports,
statements, or data compilations, 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 cases, factual findings
resulting from an investigation made pursuant to authority granted by law,
unless the sources of information or other circumstances indicate lack of
(9) 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
(10) 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.
(11) 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 religious organization.
(12) 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 or 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 time
(13) Family records. 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, and the like.
(14) Records of documents affecting an interest in property.
The record 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
(15) 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.
(16) Statements in ancient documents. Statements in a
document in existence twenty years or more the authenticity of which is
(17) 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
(18) Learned treatises. To the extent called to the
attention of an expert witness upon cross-examination or relied upon by him in
direct examination, statements, contained in published treatises, periodicals,
or pamphlets on a subject of history, medicine, or other science or art,
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
(19) 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,
marriage, divorce, death, legitimacy, relationship by blood, adoption, or
marriage, ancestry, or other similar fact of his personal or family
(20) 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
(21) Reputation as to character. Reputation of a
person's character among his associates or in the community.
(22) 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 admissibility.
(23) 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.
(24) 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 EXCEPTIONS; DECLARANT UNAVAILABLE;
(a) Definition of unavailability. "Unavailability as
witness" includes situations in which the declarant--
(1) is exempted by ruling of the court on the ground of
privilege from testifying concerning the subject matter of his
(2) persists in refusing to testify concerning the
subject matter of his statement despite an order of the court to do so;
(3) testifies to a lack of memory of the subject matter
of his statement; or
(4) is unable to be present or to testify at the hearing
because of death or then existing physical or mental illness or infirmity;
(5) 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, or absence is due to the procurement or wrongdoing of the proponent
of his statement for the purpose of preventing the witness from attending or
(b) Hearsay exceptions. The following are not excluded
by the hearsay rule if the declarant is unavailable as a
(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
(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
(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 statement.
(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
(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
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 provides in these
ATTACKING AND SUPPORTING CREDIBILITY OF
When a hearsay statement, or
a statement defined in Rule
801(d)(2), (C), (D), 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 AND
REQUIREMENT OF AUTHENTICATION OR
(a) 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.
(b) 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 rule:
(1) Testimony of witness with
knowledge. Testimony that a matter is what it is claimed to
(2) Nonexpert opinion on
handwriting. Nonexpert opinion as to the genuineness of handwriting,
based upon familiarity not acquired for purpose of the
(3) Comparison by trier or expert
witness. Comparison by the trier of fact or by expert witnesses with
specimens which have been authenticated.
(4) Distinctive characteristics
and the like. Appearance, contents, substance, internal patterns, or
other distinctive characteristics, taken in conjunction with
(5) Voice identification.
Identification of a 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
(6) Telephone conversations.
Telephone conversations, by evidence that a call was made to the number
assigned at the time by the telephone company to a particular person or
(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
(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 are kept.
(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
(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 Supreme Court pursuant to
Extrinsic evidence of
authenticity as a condition precedent to admissibility is not required with
respect to the following:
(1) 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 execution.
(2) 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
(3) 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 relates to the execution or attestation or is in a chain of
certificates 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.
(4) 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 Supreme Court pursuant to statutory
(5) Official publications. Books, pamphlets, or other
publications purporting to be issued by public authority.
(6) Newspapers and periodicals. Printed materials
purporting to be newspapers or periodicals.
(7) 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 origin.
(8) Acknowledged documents. 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
(9) Commercial paper and related documents. Commercial
paper, signatures thereon, and documents relating thereto to the extent provided
by general commercial law.
(10) Presumptions under Acts of Congress. Any
signature, document, or other matter declared by Act of Congress to be
presumptively or prima facie genuine or authentic.
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:
(1) Writings and records. "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
(2) Photographs. "Photographs" include still
photographs, X-ray films, video tapes, and motion pictures.
(3) Original. An "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."
(4) Duplicate. A "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 original.
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 CONTENTS
The original is not
required, and other evidence of the contents of a writing, recording, or
photographs is admissible if--
(1) Originals lost or destroyed. All originals are
lost or have been destroyed, unless the proponent lost or destroyed them in bad
(2) Original not obtainable. No original can be
obtained by any available judicial process or procedure; or
(3) 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;
(4) Collateral matters. 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 be
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
(a) Courts. These rules apply to proceedings of the
Supreme 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 Supreme 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.
(b) Proceedings generally. 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
(c) Rules of privilege. The rule with respect to
privileges applies at all stages of all actions, cases, and
(d) Rules inapplicable. 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
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.