6 GCA EVIDENCE DIV. 2 PRINCIPLES OF EVIDENCE CH. 1 GENERAL PRINCIPLES DIVISION 2 PRINCIPLES OF EVIDENCE CHAPTER 1 GENERAL PRINCIPLES § 2101. Division 1 to Control

§ 2102. Definition of Evidence

§ 2103. Definition of Proof

§ 2104. Definition of Law of Evidence

§ 2105. Degree of Certainty Required to Establish Facts

§ 2106. Kinds of Evidence Specified

§ 2107. Primary Evidence

§ 2108. Secondary Evidence

§ 2109. Direct Evidence

§ 2110. Indirect Evidence

§ 2111. Prima Facie Evidence

§ 2112. Partial Evidence Defined

§ 2113. Indispensable Evidence

§ 2114. Conclusive Evidence Defined

§ 2115. Cumulative Evidence

§ 2116. Corroborative Evidence

§ 2117. Trial of Questions of Fact

§ 2118. Questions of Law Addressed to the Court

§ 2101. Division 1 to Control

Except for § 8207 and for Chapter 9 of this Division, if there is a conflict between this Division and Division 1, then Division 1 shall control. SOURCE: New Section. Compare CCP § 66.1

COMMENT: When the Legislature passed P.L. 15-115:8, it intended that the primary law of Evidence on Guam be the Guam Rules of Evidence, which are found unchanged in Division 1 of this Title. In enacting the Guam Rules of Evidence, the Legislature also repealed all of the remainder of Guam's Evidence laws which were in conflict with the new Rules. The Law Revision Commission has taken the remainder of that law - Part IV of the Code of Civil Procedure except for the Civil Arbitration Act - and has attempted to remove all of those provisions which were in conflict with the new Rules and to modify other parts of the former Code of Civil Procedure - Evidence in order to bring them into conformity with the Rules. However, the Commission is not perfect and it cannot forecast all of the circumstances the courts will be called upon to interpret. Therefore, while the Commission believes that there are no conflicts in this Division 2, it wants to make clear that, if the courts do find any conflicts, then the Guam Rules of Evidence will prevail. 1 COL120106 6 GCA EVIDENCE DIV. 2 PRINCIPLES OF EVIDENCE CH. 1 GENERAL PRINCIPLES § 2102. Definition of Evidence

Judicial Evidence is the means, sanctioned by law, of ascertaining in a judicial proceeding the truth respecting a question of fact. SOURCE: CCP § 1823

COMMENT: This Section, and those following in this Chapter, contain definitions and provisions which are used in the Guam Rules of Evidence and in this Division. However, no definition of terms and general provisions are found in the Rules (Division 1) and, therefore, are included here having been modified to insure compat- ibility with the Rules

§ 2103. Definition of Proof

Proof is the effect of evidence, the establishment of a fact by evidence

SOURCE: CCP § 1824

§ 2104. Definition of Law of Evidence

The Law of Evidence, which is the subject of this Title, is a collection of rules established by law: 1. For declaring what is to be taken as true without proof; 2. For declaring the presumptions of law, both those which are disputable and those which are conclusive; 3. For the production of legal evidence; 4. For the exclusion of whatever is not legal; and 5. For determining, in certain cases, the value and effect of evidence

SOURCE: CCP § 1825

COMMENT: The word general has been removed from the first clause because the Rules of Evidence, as enacted by this Title, are far more than just a "collection of general rules," but are a collection of both general rules and some very particular rules. § 2105. Degree of Certainty Required to Establish Facts

The law does not require demonstration, that is, such a degree of proof as, excluding possibility of error, produces absolute certainty; because such proof is rarely possible. Moral certainty only is required, or that degree of proof which produces conviction in an unprejudiced mind

SOURCE: CCP § 1826. CROSS-REFERENCE: Compare 8 GCA § 90.23 for the Criminal Standard of Proof Beyond a Reasonable Doubt

§ 2106. Kinds of Evidence Specified

2 COL120106 6 GCA EVIDENCE DIV. 2 PRINCIPLES OF EVIDENCE CH. 1 GENERAL PRINCIPLES There are four kinds of evidence: 1. The knowledge of the court, that is, knowledge of which judicial notice is taken; 2. The testimony of witnesses; 3. Writings; 4. Other material objects presented to the senses

SOURCE: CCP § 1827, as modified

COMMENT: The modification here is an expansion upon the first type of evidence, i.e., the knowledge of the court. § 201 of Division 1 describes the means by which judicial notice is taken. See Article 10 of Division 1 for a definition of "writings." See Article 6 of Division 1 for Rules pertaining to testimony of witnesses

§ 2107. Primary Evidence

Primary Evidence is that kind of evidence which, under every possible circumstance, affords the greatest certainty of the fact in question. Thus, a written instrument is itself the best possible evidence of its existence and contents

SOURCE: CCP § 1829

§ 2108. Secondary Evidence

Secondary Evidence is that which is inferior to primary. Thus, a copy of an instrument or oral evidence of its contents is secondary evidence of the instrument and contents, provided that the copy is not introduced as an original as allowed by 1003 of this Title

SOURCE: CCP § 1830, as modified

COMMENT: See Article 10 of Division 1 for the rules governing the admission of secondary evidence. See § 1001 for definitions of writings, original and duplicate. This Section has been modified by the final proviso which conforms this Section to Division 1, dealing with the introduction of other than original documents. § 2109. Direct Evidence

Direct Evidence is that which proves a fact in dispute, directly, without an inference or presumption, and which in itself, if true, conclusively establishes that fact. For example, if the fact in dispute be an agreement, the evidence of a witness who was present and witnessed the making of it, is direct. SOURCE: CCP § 1831

§ 2110. Indirect Evidence

3 COL120106 6 GCA EVIDENCE DIV. 2 PRINCIPLES OF EVIDENCE CH. 1 GENERAL PRINCIPLES Indirect Evidence is that which tends to establish the fact in dispute by proving another, and which though true, does not of itself conclusively establish that fact, but which affords an inference or presumption of its existence. For example, a witness proves an admission of the party to the fact in dispute. This proves a fact, from which the fact in dispute is inferred. SOURCE: CCP § 1832

§ 2111. Prima Facie Evidence

Prima Facie Evidence is that which suffices for the proof of a particular fact, until contradicted and overcome by other evidence. For example, the certificate of a recording officer is prima facie evidence of a record, but it may afterwards be rejected upon proof that there is no such record

SOURCE: CCP § 1833

CROSS-REFERENCE: See § 901 and § 902, Division 1 for the Rules relative to authentication and identification of records, and the like. See Art. 10, Div. 1, for the Rules governing the admission of contents of writings, recordings and photographs

§ 2112. Partial Evidence Defined

Partial Evidence is that which goes to establish a detached fact in a series of facts tending to prove the fact in dispute. It may be received, subject to being rejected as incompetent unless connected with the fact in dispute by proof of other facts. For example, on an issue of title to real pro- perty, evidence of the continued possession of a remote occupant is partial, for it is of a detached fact, which may or may not be afterwards connected with the fact in dispute

SOURCE: CCP § 1834

CROSS-REFERENCE: See Div. 1, § 104 for the rules of Admissibility of Partial Evidence

§ 2113. Indispensable Evidence

Indispensable Evidence is that without which a particular fact cannot be proved

SOURCE: CCP § 1836

§ 2114. Conclusive Evidence Defined

Conclusive or unanswerable evidence is that which the law does not permit to be contradicted. For example, the record of a court of competent jurisdiction cannot be contradicted by the parties to it

SOURCE: CCP § 1837

4 COL120106 6 GCA EVIDENCE DIV. 2 PRINCIPLES OF EVIDENCE CH. 1 GENERAL PRINCIPLES CROSS-REFERENCE: See Div. 1 § 902 for a description of those documents which are self-authenticating, and the Rules relative to their admission

§ 2115. Cumulative Evidence

Cumulative Evidence is additional evidence of the same character to the same point

SOURCE: CCP § 1838

CROSS-REFERENCE: Div. 1 § 403 - Admission or exclusion of cumulative evidence

§ 2116. Corroborative Evidence

Corroborative Evidence is additional evidence of a different character to the same point

SOURCE: CCP § 1839

CROSS-REFERENCE: Div. 1 § 804(b)(3) - instances requiring corroboration. See, also, § 8206 of this Division 2 for the law respecting corroboration in certain matters of sexual assault

§ 2117. Trial of Questions of Fact

All questions of fact, on trial before a jury, judge, referee or other officer are to be decided by the jury, judge, referee or other officer, and all evidence thereon is to be addressed to them

SOURCE: CCP § 2101, as modified

COMMENT: The modification of this Section reflects the institution of jury trial and the fact that the CCP, at least here, has not been amended heretofore to reflect jury trials

§ 2118. Questions of Law Addressed to the Court

All questions of law in both criminal and civil proceedings, including the admissibility of testimony, the facts preliminary to such admission, and the construction of laws and other writings, and other rules of evidence, are to be decided by the court, and all discussion of law addressed to it. Questions of law once decided by the court may not, thereafter, be raised for reconsideration by the jury

SOURCE: CCP § 2102, as modified

CROSS-REFERENCE: Parallel provision - Div. 1 § 104. See 8 GCA § 65.15 for the requirement of raising certain motions before trial in criminal cases. COMMENT: The modification reflects the fact that this Section should apply to both criminal and civil proceedings. Recent cases have indicated that there is no clear law governing the case in criminal proceedings, except for this Section. Therefore, in the COL120106 5 6 GCA EVIDENCE DIV. 2 PRINCIPLES OF EVIDENCE CH. 1 GENERAL PRINCIPLES absence of any particular law or even particular case law, the Commission has made sure that this Section refers to both criminal and civil proceedings

The final paragraph of this Section has been added because of a criminal case wherein the question was raised governing the admissibility of evidence and no clear law was found on the subject, not even in the Guam Rules of Evidence (Division 1) [Case unre- ported at this time.] Utilizing case law, the trial judge ultimately decided the law in the manner of the final sentence, which is why this final sentence is written as it is

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