The propriety of the admission of certain evidence is a matter for consideration by the Trial Court and cannot be first considered on appeal. Dwyer v. McDonald, 1 A.S.R. 652.

Objections to the propriety of admission of evidence or reputation must be specific or will be overruled. Dwyer v. McDonald, 1 A.S.R. 652.

Whether or not to view damaged vehicle or highway where collision occurred is in discretion of trial judge, and failure to do so is not error. Faatamala v. Haleck, 4 A.S.R. 888.

According to Rules of Procedure, unless timely and sufficient objection is made to introduction of inadmissible evidence, question of admission will not be considered on appeal. (Rule 7C.) Ross v. Scanlan, 4 A.S.R. 913.

Court will not relax provisions requiring objections to admission of evidence at time of trial in order to raise objections on appeal, where appellant has not been prejudiced by evidence admitted. Ross v. Scanlan, 4 A.S.R. 913.

Viewing of disputed land is matter for trial court’s discretion, and court is not in error in failing to view when view was never requested by appellant. Willis v. Government, 4 A.S.R. 926.

On appeal, a party should not make an objection to evidence after it has already been admitted without objection at the trial level. Solomona v. Governor of American Samoa, 18 A.S.R.2d 14.

T.C.R.E. 106’s “Rule of Completeness” is violated only when the redaction of the statement effectively distorts the meaning of the statement or excludes information substantially exculpatory of the nontestifying defendant. Pua’a v. American Samoa Gov’t, 3 A.S.R.3d 39 (App. Div. 1999).

The Supremacy Clause of the U.S. Constitution sometimes requires that courts exclude evidence where such is explicitly commanded by a treaty or an executive agreement. American Samoa Gov’t v. Enoka, 5 A.S.R.3d 81 (Trial Div. 2001).

Violation of the Vienna Convention consular notification requirement does not require suppression of subsequently-obtained evidence in a criminal proceeding against a foreign national. American Samoa Gov’t v. Enoka, 5 A.S.R.3d 81 (Trial Div. 2001).

To prevail in a civil action, a party must make the required showing by a preponderance of the evidence. TCW Special Credits v. F/V Cassandra Z, 7 A.S.R.3d 3 (App. Div. 2003).

§ 2 Judicial Notice

Court takes judicial notice of fact that when members of Samoan family took possession of bush land it was on behalf of matai as owner of communal family property. Soliai v. Levu, 2 A.S.R. 440.

Courts take judicial notice of matters of common knowledge of every person of ordinary understanding and intelligence, such as fact that Samoans cleared bush land and occupied it, claiming it on behalf of their families. Toomata v. Vea, 2 A.S.R. 564.

Court will take judicial notice of its own records. Siaosi v. Asoau, 3 A.S.R. 293.

Judicial notice may be taken of facts of local history which are of general knowledge. Lualemana v. Brown, 3 A.S.R. 348.

Finding of fact of Trial Court will be set aside upon appeal if contradicted by decisions in previous High Court cases which Trial Court failed to take judicial notice of. Leasiolagi v. Faumui, 3 A.S.R. 509.

Court takes judicial notice of Samoan customs as matters of general knowledge. Betham v. Faumuina, 3 A.S.R. 537.

Court will take judicial notice of records in another proceeding, particularly where issues and parties are interrelated. Scanlan v. Steffany, 3 A.S.R. 583.

Appellate court may take judicial notice of any matter which trial court may, including records of interrelated proceeding. Scanlan v. Steffany, 3 A.S.R. 583.

Court takes judicial notice of customs of American Samoa which are of common knowledge, Seui v. Mata’afa, 4 A.S.R. 333.

Courts may take judicial notice of their own records for all purposes. Fanene v. Fanene, 4 A.S.R. 603.

Court will take judicial notice of matters of common knowledge. Bottling Corporation of Samoa v. Lee, 4 A.S.R. 499.

Trial court may take judicial notice of War Damage Claim record in order to determine testimony of witness was false. Lualemana v. Magalei, 4 A.S.R. 849.

Court takes judicial notice of informality of Samoa thereby facilitating communication between public defender and accused. Fanene v. Government, 4 A.S.R. 957.

Appellate court could take judicial notice that appellee had recently assumed the office of district governor. Mose v. Tufele, 12 A.S.R.2d 31.

Judicial notice may be taken of facts generally known within the territorial jurisdiction of the court. T.C.R.Ev. Rule 201(b)(1). Reine v. Fiame, 23 A.S.R.2d 36.

The court may take judicial notice of the generally known fact that in the Territory of American Samoa, Hurricane Val was stronger and more destructive than Hurricane Ofa in the harbor area where Pago Plaza is located. G.M. Meredith and Assoc. v. Blue Pacific Management Corp., 28 A.S.R.2d 60.

Trial court’s taking judicial notice of comparable hurricane wind strength data was of little consequence as these statistics did not relate to any material, disputed fact. Meredith & Associates v. Blue Pacific Management Corp., 1 A.S.R.3d 4 (App. Div. 1997).

Judicial notice may be taken of the court’s records in the criminal cases involving the same incident as the civil case, and those records may be sufficient to support a default where defendants fail to appear at the civil trial. Masaniai v. The Country Club, 2 A.S.R.3d 120 (Trial Div. 1998).

Under T.C.R.Ev. 201(d), a court shall take judicial notice of an adjudicative fact if requested by a party and supplied with the necessary information; an adjudicative fact is one not subject to reasonable dispute. TCW Special Credits, Inc. v. F/V Cassandra Z, 4 A.S.R.3d 154 (Trial Div. 2000).

§ 3 Presumptions

§ 3(1) ¾General Civil Actions

In civil case, all that is necessary for proof of allegations is preponderance of evidence. American Samoa v. Salanoa, 1 A.S.R. 487.

Where equal amount of evidence has been given by both parties, Court will determine which evidence preponderates by determining which is more reasonable. Maluia v. Tafetee, 1 A.S.R. 537.

Civil cases are decided upon weight of evidence and while evidence on neither side may be strong, the side with the strongest evidence wins. Asuega v. Lauti, 1 A.S.R. 549.

Civil cases are decided by weight of evidence, however slight that may be. Satele v. Maiavatele, 1 A.S.R. 563.

When evidence is equally balanced, party in whose favor presumption of law works will prevail. Leatutufu v. Iuli, 2 A.S.R. 328.

In civil case, mere preponderance of proof is all that is necessary to establish point in issue. Toomata v. Vea, 2 A.S.R. 564.

Practice, well established, such as Samoans clearing and claiming family lands before advent of United States Government, is presumed to have been followed in individual cases, and is accepted as sufficient proof of fact in question where primary evidence of such fact is lacking. Toomata v. Vea, 2 A.S.R. 564.

In civil cases, mere preponderance of proof is all that is necessary to establish point in issue. Fruean v. Mageo, 2 A.S.R. 591.

“Preponderance” standard means that if the parties’ contradictory versions of the facts have equal evidentiary support and the plaintiff cannot establish superior credibility, the defendant must prevail. Lafaele v. Continental Insurance Co., 4 A.S.R.2d 131.

All other things being equal, positive testimony is entitled to more weight than negative testimony. Tagoai v. Tuiafono, 4 A.S.R. 252.

A public officer is presumed to act for purposes of promoting the public good and protecting the public interest. This presumption of regularity of official acts is rebuttable. Bottling Corporation of Samoa v. Lee, 4 A.S.R. 938.

§ q3(2) ¾Land & Titles Division

SEE PROPERTY § 8(2) – LAND & TITLES DIVISION

A presumption of ownership arises from possession of land. Amituanai v. Tuli, 2 A.S.R. 315.

Samoan custom that occupation and claim of ownership of land is on behalf of family establishes presumption to that effect in absence of contrary evidence. Soliai v. Levu, 2 A.S.R. 440.

§ 3(3) —Matai

SEE MATAI TITLE DISPUTES

SEE SAMOAN CUSTOM § 8 – MATAI

Where witness testifies that possessor of land received permission from “matai” to use family lands, and testimony is only contradicted by denial, court generally finds that positive testimony to a thing within peculiar knowledge of witness prevails over negative testimony. Levu v. Maluia, 1 A.S.R. 197.

“Matai” is presumed to possess all powers usually possessed by virtue of such status until the contrary is shown by positive evidence. Tupua v. Aumavae, 1 A.S.R. 231.

In matai title cases, no evidence may be admitted attacking the validity of previously held titles as all previous holders of matai titles are assumed to have held their names legally. Teutusi v. Faga, 1 A.S.R. 543.

§ 3(4) —Criminal Cases

RESERVED

§ 3(5) —Extradition Proceedings

The admissibility of evidence in an extradition proceeding is determined by the applicable extradition treaty. American Samoa Gov’t v. Enoka, 5 A.S.R.3d 81 (Trial Div. 2001).

§4 Relevance

§4(1) ¾General Definition

Co-plaintiff is not prejudiced where other parties stipulate as to issue of fact where he had opportunity to present his own contrary evidence, which was disbelieved by court. Taufaasau v. Manuma, 4 A.S.R. 947.

In deciding whether questions asked a witness by members of a legislative committee were relevant to the committee’s charter, a court should impose no stricter standard than it would impose on itself in a similar case. Senate Select Investigating Committee v. Horning, 3 A.S.R.2d 14.

Questions about the disposal of government property were relevant to an inquiry into the causes of a government budget deficit. Sialega v. Taito (Mem.), 3 A.S.R.2d 40.

Normally, the relevance of a witness’ testimony is decided by the trial judge after the witness has been sworn and objections have been made. American Samoa Government v. Talamoni, 27 A.S.R.2d 123.

§4(2) ¾Admissibility

An administrative law judge’s order or opinion which has been vacated is inadmissible as evidence in a subsequent judicial proceeding. Interocean Ships, Inc. v. Samoan Gases, 24 A.S.R.2d 108.

§4(3) ¾Exclusion of Relevant Evidence

T.C.R.Ev. 403 mandates exclusion of evidence when its probative value is substantially outweighed by its unfair prejudicial effect. Mulitauaopele v. Am. Samoa Gov’t, 7 A.S.R.3d 32 (App. Div. 2003).

§4(4) ¾Inadmissible Character Evidence

If evidence of past crimes speaks more to defendant’s proclivity to commit crimes in general, rather than his participation in the crime at hand, it has a high probability of instigating the jury to convict because defendant “is a bad person” – an unallowable inference. American Samoa Government v. Bernard, 26 A.S.R.2d 110.

The fact that this defendant is in the “general class” of those prone to commit such crimes, does not go to the modus operandi/identity of this particular defendant. Such evidence tends only to mark him as one of an undesirable, unremarkable sub-class, a distinction that would have a prejudicial effect and tend to mislead the jury. American Samoa Government v. Bernard, 26 A.S.R.2d 110.

In determining whether to admit prior crimes, wrongs or acts, length of time between the prior crimes and acts and the incident at hand is another factor to be considered. American Samoa Government v. Bernard, 26 A.S.R.2d 110.

§4(5) ¾Methods of Proving Character

RESERVED

§4(6) ¾Habit; Routine Practice

Drug courier profile evidence is a somewhat informal compilation of characteristics believed to be typical of persons unlawfully carrying narcotics. Mulitauaopele v. Am. Samoa Gov’t, 7 A.S.R.3d 32 (App. Div. 2003).

Drug courier profile evidence is not always improper, and the court does not abuse its discretion in allowing such evidence to rebut a defendant’s claim that he or she does not fit the typical drug courier profile, or to establish a modus operandi in complex cases. Mulitauaopele v. Am. Samoa Gov’t, 7 A.S.R.3d 32 (App. Div. 2003).

§4(7) ¾Subsequent Remedial Measures

RESERVED

§4(8) ¾Compromise & Offers to Compromise

T.C.R.Ev. 408, which excludes “evidence of conduct or statements made in compromise negotiations,” can exclude evidence of negotiations before legal action is contemplated. McConnell Dowell (Am. Samoa), Ltd. v. Am. Samoa Power Auth., 4 A.S.R.3d 73 (Trial Div. 2000).

T.C.R.Ev. 408 excludes evidence of compromise only when offered “to prove liability or invalidity of the claim or its amount.” It does not require exclusion when the evidence is offered for another purpose. McConnell Dowell (Am. Samoa), Ltd. v. Am. Samoa Power Auth., 4 A.S.R.3d 73 (Trial Div. 2000).

Where plaintiff alleged that defendant had made misrepresentations and failed to negotiate in good faith, evidence regarding conduct of negotiations would not be inadmissible under Evidence Rule 408, nor would such evidence be immaterial or subject to being stricken under T.C.R.C.P. 12(f). McConnell Dowell (Am. Samoa), Ltd. v. Am. Samoa Power Auth., 4 A.S.R.3d 3 (Trial Div. 2000).

§4(9) ¾Payment of Expenses

RESERVED

§4(10) ¾Pleas, Plea Discussions

The government acts improperly when it introduces evidence of defendant’s pleas of nolo contendere in previous criminal proceedings. T.C.R.Ev. 410. American Samoa Government v. Solaita, 27 A.S.R.2d 9.

A plea of nolo contendere is recognized as having no effect beyond the action in which it is entered and no evidentiary value as an admission of guilt. American Samoa Government v. Solaita, 27 A.S.R.2d 9.

Where prosecutors have improperly introduced evidence of defendant’s pleas of nolo contendere in previous criminal proceedings, court will not grant a mistrial, but will strike and disregard the evidence. American Samoa Government v. Solaita, 27 A.S.R.2d 9.

§4(11) ¾Liability Insurance

RESERVED

§4(12) ¾Victim Behavior in Rape Cases

RESERVED

§5 Privileges

§5(1) ¾Generally

RESERVED

§5(2) ¾Marital Communications

Unless provided by statute or constitutional provision, privileges in American Samoa are governed by the principles of common law. The spousal immunity privilege protects one spouse from testifying against the other concerning conduct or other facts of which he or she has personal knowledge and shields private communications between husband and wife. American Samoa Gov’t v. Togiailua, 3 A.S.R.3d 78 (1999).

The spousal immunity privilege does not apply in cases where a crime has been committed by one spouse against another spouse or against a child of the family. American Samoa Gov’t v. Togiailua, 3 A.S.R.3d 78 (1999).

§5(3) ¾Lawyer-Client Communications

RESERVED

§5(4) ¾Physician-Patient Relationship

§5(5) ¾Governmental Secrets

RESERVED

§6 Witnesses

§6(1) ¾General Rule of Competency

In American Samoa, witness may testify with respect to transaction with dead person even though witness is interested party, but court may look with skepticism upon such testimony. Sei v. Aumavae, 2 A.S.R. 396.

There is no dead man’s statute rendering witness incompetent to testify as to transaction with deceased person; consequently court will admit into evidence such testimony. Tuileata v. Talivaa, 3 A.S.R. 201.

Only in extraordinary circumstances will a court compel the testimony of the chief executive of the jurisdiction in which the court sits. Fa’atiliga v. Lutali (Mem.), 3 A.S.R.2d 124.

Most information available from chief executive of state or territory can be just as easily obtained from lesser officials. Fa’atiliga v. Lutali (Mem.), 3 A.S.R.2d 124.

Party may compel testimony from chief executive of state or territory only if it seems absolutely necessary to make out his case and the party can convince the court that there is some chance the testimony will enable him to prevail. Fa’atiliga v. Lutali (Mem.), 3 A.S.R.2d 124.

Before being allowed to compel testimony of territorial Governor regarding alleged scheme to dispose of government property for less than its actual value, party must produce other evidence of Governor’s personal involvement in such scheme. Fa’atiliga v. Lutali (Mem.), 3 A.S.R.2d 124.

Where incumbent Governor was actively involved in affairs of a corporation before he became Governor and is the only available witness with detailed knowledge of events material to litigation involving the corporation, a party may compel his testimony. Fa’atiliga v. Lutali (Mem.), 3 A.S.R.2d 124.

Persons who are likely to be called as witnesses should be notified as far in advance of trial as possible. Judicial Memorandum, 4 A.S.R.2d 176.

Generally speaking, every person is considered competent to be a witness. Am. Samoa Gov’t v. Vaai, 6 A.S.R.3d 221 (Trial Div. 2002).

Any given witness is presumed competent to testify. However, the presumption is a rebuttable one. Am. Samoa Gov’t v. Vaai, 6 A.S.R.3d 221 (Trial Div. 2002).

The court must determine the competency of witnesses, and such decision will not be disturbed unless it is clear the judge abused his or her discretion. Am. Samoa Gov’t v. Vaai, 6 A.S.R.3d 221 (Trial Div. 2002).

In determining whether a child is competent to testify, there is no precise cut-off age. Instead, the court determines whether the child has: (1) an understanding of the obligation to speak the truth on the witness stand; (2) the mental capacity at the time of the occurrence concerning which he is to testify to receive an accurate impression of it; (3) a memory sufficient to retain an independent recollection of the occurrence; (4) the capacity to express in words his memory of the occurrence; and (5) the capacity to understand simple questions about it. Am. Samoa Gov’t v. Vaai, 6 A.S.R.3d 221 (Trial Div. 2002).

To find child competent to testify, court must evaluate child’s voir dire examination to find that, based on child’s demeanor and answers as whole, child understood obligation to testify truthfully and had mental capacity to accurately perceive events at issue when they occurred, to recollect those events at time of trial, and to understand and answer questions about those events. Am. Samoa Gov’t v. Agasiva, 6 A.S.R.3d 251 (Trial Div. 2002).

§6(2) ¾Credibility and Impeachment

Fact that witness conspired with plaintiff and others to do wrong to defendant with reference to subject of suit makes witness unworthy of credit. Sapela v. Mageo, 1 A.S.R. 143.

Where witnesses in land dispute are related to one of parties, their testimony must be based on such facts as will convince court that their testimony is good evidence and not biased opinion. Mailo v. Fuamaila, 1 A.S.R. 449.

Court may call disinterested parties as its own witnesses in matai title cases to testify as to existence of alleged title holder. Moelupe v. Savali, 1 A.S.R. 517.

Where witness for petitioners states charge attempted to be proved by petitioners is untrue, letters which allegedly contradict testimony will not be admitted into evidence since they impeach petitioner’s own witness. Mauga Family v. Mauga, 2 A.S.R. 213.

Court will apply doctrine of “falsus in uno, falsus in omnibus” in weighing credibility of witness. Leano v. Leti, 2 A.S.R. 524.

A witness who was drinking at time of incident in question has less credibility than if he had not been drinking. Pan American Prints v. Mosegi, 3 A.S.R. 528.

Court discounts testimony of witness who is confused, unsubstantiated and irrelevant. Mageo v. Fuga, 4 A.S.R. 426.

Testimony of witness who makes false statement on material issue must be disregarded in entirety unless otherwise corroborated. Lualemana v. Magalei, 4 A.S.R. 849.

Witness whom makes contradictory statements as witness and files petition permeated with fraud lacks credibility. Tuliau v. Sunia, 4 A.S.R. 858.

That part of a witness’s testimony is false may show that other parts of his testimony are also false. Samoa v. Gibbens, 3 A.S.R.2d 121.

Police officer’s uncontroverted testimony that speed limit sign had been posted because the road was near a school did not bind the court to find that the posted limit applied only during school hours. American Samoa Government v. Sale Uo, 4 A.S.R.2d 14.

Testimony of litigant that at seventeen years of age he had personally entered into a boundary agreement with neighboring landowner, although at the time in question his father had been living and working on the land in question, was not credible. Falefia v. Sipili, 7 A.S.R.2d 1.

Although testimony and exhibits in earlier cases can be presumed to be as self-serving as those in the case being decided, they are sometimes helpful in providing historical context, prior consistent or inconsistent statements, and evidence offered by a party who had no reason to lie about the point the evidence tends to establish in the later case. Moea`i v. Te`o, 8 A.S.R.2d 85.

Court must choose among sharply conflicting statements of witnesses by reference to factors such as internal coherence and consistency, strength or weakness of motives to lie, conflict or consistency with other relatively objective sources of evidence, and court’s own estimate of witnesses’ demeanor and of inherent plausibility of testimony. Moea`i v. Te`o, 8 A.S.R.2d 85.

Trial court did not commit error in using the transcript from a prior preliminary injunction hearing to make factual determinations, despite appellant’s claim that he introduced the transcript for impeachment purposes. Estate of Sotoa v. Te`o, 8 A.S.R.2d 165.

Testimony of parties who have shown a willingness to perjure themselves by entering into “immigration marriage,” with respect to unverifiable event such as whether subsequent sexual relations occurred, is not “clear, convincing, and satisfactory” evidence. Pritchard v. Purcell, 11 A.S.R.2d 16.

Untruthful testimony by petitioner in proceeding for termination of parental rights cast into doubt her testimony concerning her inability to give the natural parents actual notice of the proceeding and their earlier willingness to let their child be raised by her. In re A Minor Child, 11 A.S.R.2d 107.

Case in which an appellate court upheld a trial court’s assessment of damages on the basis of testimony by a single interested witness does not support the proposition that a trial court is bound to believe the “best available evidence” when this consists solely of the testimony of a witness whom the court has reason to believe is not telling the truth. R.P. Porter International, Inc., v. Pacific International Engineering, Inc. (Mem.), 12 A.S.R.2d 48.

Where there is no good reason to doubt an eyewitness account the court will not speculate otherwise. Estate of Tuilesu v. Asifoa, 20 A.S.R.2d 60.

In resolving issues of witnesses’ credibility, motive, and character, the Appellate Division is limited to the trial court’s transcripts and will presume their determinations to be correct, unless clearly erroneous. A.S.C.A. § 43.0801(b). Rocha v. Rocha, 20 A.S.R.2d 63.

The trier of fact may properly approach self‑serving testimony with caution, but there is no requirement that it be disbelieved. The day has long past when interest parties were disqualified as witnesses. Reine v. Taotoai, 25 A.S.R.2d 136.

It is for the trial court to resolve conflicts in the evidence, and to judge the credibility of the witnesses. The Appellate Division will not overturn the trial court’s resolution of conflicting evidence, when substantial evidence supports its ruling. Reine v. Taotoai, 25 A.S.R.2d 136.

It is the exclusive function of the jury to determine the credibility of witnesses, resolve evidentiary conflicts and draw reasonable inferences from proven facts. American Samoa Government v. Tauala, 25 A.S.R.2d 179.

A prosecutor may use pre-arrest silence to impeach a defendant’s testimony. American Samoa Gov’t v. Faletogo, 4 A.S.R.3d 190 (Trial Div. 2000).

Credibility of witnesses is uniquely a matter for determination by the trier of fact. Williams v. Am. Samoa Gov’t, 6 A.S.R.3d 35 (App. Div. 2002).

Credibility of witnesses is uniquely the prerogative of the trial court. Timu v. McMoore, 6 A.S.R.3d 41 (App. Div. 2002).

Inconsistencies in a child’s testimony do not speak to the child’s competency but, instead, go to her credibility. Am. Samoa Gov’t v. Vaai, 6 A.S.R.3d 221 (Trial Div. 2002).

Matters of credibility are within the exclusive function of the jury. Am. Samoa Gov’t v. Vaai, 6 A.S.R.3d 221 (Trial Div. 2002).

§6(3) ¾Form of Direct Examination

RESERVED

§6(4) ¾Cross Examination

Regarding cross-examination of witnesses, term “natural justice and convenience” embraces due process of law, but procedures adopted to accommodate complex litigation which do not prejudice the opportunity of any party to be fully and effectively heard and do not offend due process. Te’o v. Fanene, 1 A.S.R.2d 3 (App. Div. 1980).

§6(5) ¾Written Document to Refresh Memory

RESERVED

§6(6) ¾Prior Statements of Witnesses

RESERVED

§6(7) ¾Exclusion of Witnesses

RESERVED

§6(8) ¾Witness Fees

Parties may not normally collect fees as witnesses, even where they are also witnesses for other parties. TCW Special Credits, Inc. v. F/V Cassandra Z, 4 A.S.R.3d 154 (Trial Div. 2000).

Expert witness fees, interpreter fees, and deposition costs are generally limited by statute, and taxation of costs in excess of these amounts are outside a court’s discretion unless expressly authorized by statute. TCW Special Credits, Inc. v. F/V Cassandra Z, 4 A.S.R.3d 154 (Trial Div. 2000).

§ 7 Opinions and Expert Testimony

§7(1) ¾Generally

It is not necessary to attend mechanical school in order to testify as to damage to car involved in motor vehicle collision. Faatamala v. Haleck, 4 A.S.R. 888.

An indigent defendant’s constitutional right to assistance of counsel includes the right to necessary investigative assistance. Am. Samoa Gov’t v. Tuvale, 2 A.S.R.2d 92 (Trial Div. 1986).

An indigent defendant who wishes to have an expert appointed or test conducted at public expense may move the court for such an order and, in accordance with certain procedures, may move and be heard ex parte if notice to the Attorney General would inhibit his defense. Am. Samoa Gov’t v. Tuvale, 2 A.S.R.2d 92 (Trial Div. 1986).

It is the responsibility of the executive branch to pay for those experts or tests ordered by the court for indigent defendants. Am. Samoa Gov’t v. Tuvale, 2 A.S.R.2d 92 (Trial Div. 1986).

Visit by one member of court to land that was the subject of litigation, and subsequent report of that judge to other judges, did not constitute impermissible “testimony” by the judge when both counsel had been present at the viewing of the land and no objection had been made. Vaimaona v. Paleafei, 3 A.S.R.2d 92.

When opinion of witness is admitted into evidence, court need not accept opinion as fact but must give it the weight to which the court believes it is entitled. American Samoa Government v. Sale Uo, 4 A.S.R.2d 14.

§7(2) ¾Opinions by Lay Witnesses

RESERVED

§7(3) ¾Expert Testimony

The testimony of the government’s expert may, in some circumstances, include statements made to him by a criminal defendant during the compelled examination, although the witness may testify only about the alleged mental disease or defect and not about “guilt or innocence” (i.e., about whether the defendant would be guilty in the absence of any such disease or defect). A.S.C.A. § 46.1304. American Samoa Gov’t v. Taylor, 19 A.S.R.2d 99.

A criminal defendant who puts his mental capacity at issue may be compelled to submit to an examination by the government’s expert, who may testify about his observations and conclusions. A.S.C.A. § 46.1304. American Samoa Gov’t v. Taylor, 19 A.S.R.2d 99.

Regarding a defense of diminished mental capacity, when a mental disease or defect is alleged to have resulted in a criminal defendant’s “incapacity to intend” rather than in “insanity,” the testimony of the government’s expert must be limited to the question of such incapacity and may not be considered by the jury for any other purpose. American Samoa Gov’t v. Taylor, 19 A.S.R.2d 99.

Although a defense of diminished mental capacity is arguably comprehended within the “guilt” phase of a bifurcated trial, the interests in a fair trial and an orderly proceeding may be better served by reserving all evidence of mental disease or defect for the “insanity” phase because a jury is likely to view the evidence as being highly probative of issues other than the criminal defendant’s mental state, and a limiting instruction would likely be ineffective. A.S.C.A. §§ 46.1301-46.1302. American Samoa Gov’t v. Taylor, 19 A.S.R.2d 99.

A trial court has broad discretion concerning the admissibility or exclusion of expert testimony. EW Truck and Equipment Co. v. Coulter, 20 A.S.R.2d 88.

A trial court has broad discretion concerning the admissibility or exclusion of expert testimony. Clifton v. Voyager, 31 A.S.R.2d 12.

An expert witness may use statements in a medical or other learned treatise when the treatise is established as a reliable authority by the testimony of the witness, by other expert testimony, or by judicial notice. Gibbons v. American Samoa Gov’t, 5 A.S.R.3d 36 (Trial Div. 2001).

Where treatise extensively described features of the medical condition at issue, was a widely-used resource in the relevant medical field, and its use in connection with testimony of Plaintiff’s expert went without objection by defense, Court properly took judicial notice of such treatise. Gibbons v. American Samoa Gov’t, 5 A.S.R.3d 36 (Trial Div. 2001).

The issue of a preexisting condition is one of fact for which medical testimony is appropriate. Gibbons v. American Samoa Gov’t, 5 A.S.R.3d 36 (Trial Div. 2001).

The determination whether an expert witness has sufficient qualifications to testify is a matter within the trial court’s discretion. Faifaiese v. Am. Samoa Gov’t, 6 A.S.R.3d 10 (App. Div. 2002).

A trial court’s decision to admit expert opinion is reviewed for abuse of discretion. Faifaiese v. Am. Samoa Gov’t, 6 A.S.R.3d 10 (App. Div. 2002).

Determination of whether expert witness has sufficient qualifications to testify is matter within trial court’s discretion, and reviewing court cannot reverse for abuse of discretion unless it has definite and firm conviction that court below committed clear error of judgment in conclusion reached upon weighing of relevant factors. Faifaiese v. Am. Samoa Gov’t, 6 A.S.R.3d 10 (App. Div. 2002).

Since T.C.R.Ev. 702 mirrors the language of Fed. R. Evid. 702, T.C.R.Ev. is likewise controlled by Daubert v. Merrell Dow Pharmaceutical, Inc., 509 U.S. 579 (1993). Faifaiese v. Am. Samoa Gov’t, 6 A.S.R.3d 10 (App. Div. 2002).

Under Daubert test, trial judge is to decide whether evidence rests on reliable foundation and is relevant to task at hand. Faifaiese v. Am. Samoa Gov’t, 6 A.S.R.3d 10 (App. Div. 2002).

When assessing the reliability of any expert’s testimony, the trial court may consider the Daubert factors to the extent relevant, which will depend upon the nature of the issue, the expert’s particular expertise and the subject of his testimony. Faifaiese v. Am. Samoa Gov’t, 6 A.S.R.3d 10 (App. Div. 2002).

Trial judge’s determination allowing expert testimony was not abuse of discretion under T.C.R.Ev. 702 and Daubert test where reliability of testimony had been established by witness’s training, expertise and experience in narcotics investigations. Faifaiese v. Am. Samoa Gov’t, 6 A.S.R.3d 10 (App. Div. 2002).

The trial judge is granted wide latitude in making a determination whether technique qualifies as scientific knowledge under Daubert. The inquiries to determine whether a technique qualifies as scientific knowledge under Daubert are whether the technique has been tested, whether it has been subject to peer review and publication, the known or potential rate of error, and its general acceptance. Faifaiese v. Am. Samoa Gov’t, 6 A.S.R.3d 10 (App. Div. 2002).

The Duquenois-Levine test has been used by law enforcement for many years, has been tested for reliability and has been the subject of scholarly review. While test is not free of error and its use has been matter of scholarly dispute, neither factor rises to level of being abuse of discretion for its acceptance by a trial judge. Faifaiese v. Am. Samoa Gov’t, 6 A.S.R.3d 10 (App. Div. 2002).

Where officer-witness testified regarding his many years of experience in narcotics investigations, including over sixty narcotics cases, and his training in visual, microscopic and chemical identification of marijuana, such was sufficient to establish witness’ expertise in illicit drug identification and testing, and the reliability of his testimony. Williams v. Am. Samoa Gov’t, 6 A.S.R.3d 35 (App. Div. 2002).

To assist in its fact-finding mission, a trial court may rely upon scientific, technical, or other specialized knowledge in the form of an expert’s opinion. Progressive Ins. Co, Ltd. v. S. Star Int’l, Inc., 6 A.S.R.3d 112 (Trial Div. 2002).

Expert opinion testimony, in order to be properly admitted, must assist the trier of fact in understanding the evidence or determining a fact at issue. Progressive Ins. Co, Ltd. v. S. Star Int’l, Inc., 6 A.S.R.3d 112 (Trial Div. 2002).

Expert testimony is admissible only if it is both relevant and reliable. Mulitauaopele v. Am. Samoa Gov’t, 7 A.S.R.3d 32 (App. Div. 2003).

The presiding judge’s role in ensuring the reliability and relevancy of expert testimony extends to all expert testimony. Mulitauaopele v. Am. Samoa Gov’t, 7 A.S.R.3d 32 (App. Div. 2003).

Reliability of a specific scientific theory or technique may be determined by all or some of certain specific factors, including testing, peer review, error rates, and acceptance in the relevant scientific community. Mulitauaopele v. Am. Samoa Gov’t, 7 A.S.R.3d 32 (App. Div. 2003).

The Daubert test for reliability of a specific scientific theory or technique is flexible, and the list of specific factors neither necessarily nor exclusively applies to all experts or in every case. Mulitauaopele v. Am. Samoa Gov’t, 7 A.S.R.3d 32 (App. Div. 2003).

A trial court has broad discretion concerning the admissibility or exclusion of expert testimony, and its action will be sustained unless it is shown to be manifestly erroneous. Mulitauaopele v. Am. Samoa Gov’t, 7 A.S.R.3d 32 (App. Div. 2003).

T.C.R.Ev. 704 does not contain the prohibition against expert testimony in a criminal case as to whether a defendant had the mental state constituting an element of the offense charged, American Samoa’s rules do not open the door to all expert testimony on the ultimate issue of a defendant’s guilt. Mulitauaopele v. Am. Samoa Gov’t, 7 A.S.R.3d 32 (App. Div. 2003).

T.C.R.Ev. 704 allows expert testimony in the form of an opinion or inference only when it is otherwise admissible. Mulitauaopele v. Am. Samoa Gov’t, 7 A.S.R.3d 32 (App. Div. 2003).

T.C.R.Ev. 704 does not prohibit experts from testifying as to ultimate issues, but allowing an expert witness provide an opinion that the accused used a co-defendant’s weaknesses when the expert could provide no proper foundation for his opinion was an error that was not harmless, and was improper and prejudicial evidence by the expert that the accused was, in fact, guilty. Mulitauaopele v. Am. Samoa Gov’t, 7 A.S.R.3d 32 (App. Div. 2003).

§7(4) ¾Bases of Expert Testimony

The trial court did not commit manifest error when it refused to allow a proffered expert to testify in terms of a hypothetical, based upon test results of a person whose qualifications were never properly presented, particularly when the final decision could be a matter of life and death. EW Truck and Equipment Co. v. Coulter, 20 A.S.R.2d 88.

To meet the reliability requirement, an expert’s opinion must be premised upon a technique which is scientifically valid. To be scientifically valid, a trial court must determine whether the technique has been tested, subjected to peer review and publication, has a known or potential rate of error, and, finally, has been generally accepted by recognized experts in the field. Progressive Ins. Co, Ltd. v. S. Star Int’l, Inc., 6 A.S.R.3d 112 (Trial Div. 2002).

§8 Hearsay

SEE REAL PROPERTY § 4(7) – HEARSAY

§8(1) ¾General Rule

Title to land cannot be evidenced by hearsay or by reputation. Talo v. Tavi, 2 A.S.R. 63.

Original claim of title based on hearsay cannot be accepted by court. Tuiolosega v. Voa, 2 A.S.R. 138.

Where all prosecuting witnesses testified that they had heard that accused trespassed upon land of another, but none had personal knowledge of trespass, accused must be acquitted since such testimony is hearsay and inadmissible. American Samoa v. Simi, 2 A.S.R. 643.

Court cannot find defendant guilty on hearsay evidence of two witnesses who were informed by public health representative that violation had been committed. Government v. Nomura, 2 A.S.R. 658.

Most hearsay evidence is excluded by courts because of unreliability and lack of opportunity to cross examine. Fe’a v. Sisipeni, 4 A.S.R. 320.

Testimony of defendant and her mother that land was given to her father is hearsay. Fe’a v. Sisipeni, 4 A.S.R. 320.

Testimony of witness on clearing of land before his birth is hearsay. Tuia v. Savea, 4 A.S.R. 483.

Testimony of witness concerning planting of land before he arrived at village is hearsay. Tauese v. Maui, 4 A.S.R. 605.

Hearsay evidence is evidence of statement made by other than testifying witness and offered to prove truth of matter stated. Meredith v. Mola, 4 A.S.R. 773.

Statements by parties as to what percentage of automobile damaged in collision was salvageable were hearsay. Faatamala v. Haleck, 4 A.S.R. 888.

Hearsay admitted with no objection may be properly considered and given natural probative effect. Ross v. Scanlan, 4 A.S.R. 913.

Testimony of statement of deceased is not hearsay where testimony is not offered to prove truth of statement but as relevant to factual issue necessary to determination of case. Ross v. Scanlan, 4 A.S.R. 913.

Growing tendency is to relax hearsay rule and uphold exceptions to rule. Ross v. Scanlan, 4 A.S.R. 913.

Where judge is trier of fact, hearsay rule is considerably relaxed. Ross v. Scanlan, 4 A.S.R. 913.

Although largely hearsay, oral family history and tradition of occupancy and cultivation is necessary in a communal land-tenure system commonly lacking title documentation and so is admissible in evidence for establishing title to a parcel of land. Toilolo v. Poti, 23 A.S.R.2d 130.

While hearsay evidence of family histories and traditions is admissible in communal land disputes, such evidence must always be viewed with caution. Afemata v. Pasa, 25 A.S.R.2d 132.

Statement, made by defendant, that his uncle was taking a large risk in shipping the drugs through the mail was not offered to prove the truth of the matter asserted, but instead to show defendant’s knowledge that he was picking up drugs. Therefore, it was not hearsay and it could be used against him at trial. American Samoa Gov’t v. Ropati, 3 A.S.R.3d 104 (Trial Div. 1999).

Although statement, when viewed under a strictly literal truth of the matter asserted standard, did not constitute hearsay, its proffered use to implicate codefendant rendered it hearsay, and was properly considered such. American Samoa Gov’t v. Ropati, 3 A.S.R.3d 104 (Trial Div. 1999).

When right to confrontation problems may be caused by hearsay statements of a codefendant to be used in joint trial, a court must consider remedial action, including severance. American Samoa Gov’t v. Ropati, 3 A.S.R.3d 104 (Trial Div. 1999).

Where Appellant’s self-serving statement was kept out of evidence as hearsay, he was properly prevented from arguing such evidence during closing argument. However, he nonetheless could argue the absence of any confession or admission. Faletogo v. Am. Samoa Gov’t, 6 A.S.R.3d 22 (App. Div. 2002).

§8(2) ¾Exceptions when Declarant Available

§8(2)(a)¾General Provisions

Neither a casual admission nor idle conversation constitute a declaration made in furtherance of a criminal conspiracy and therefore are not immune from the hearsay rule under such exception. American Samoa Gov’t v. Ropati, 3 A.S.R.3d 104 (Trial Div. 1999).

Separate trials are essential when incriminating out-of-court statements of a codefendant, admissible against the declarant but not against codefendant, would be presented in evidence. American Samoa Gov’t v. Ropati, 3 A.S.R.3d 104 (Trial Div. 1999).

§8(2)(b)¾Present Sense Impression

RESERVED

§8(2)(c) ¾ Excited Utterance

To apply the excited utterance exception to a hearsay statement, the trial court must make a preliminary factual determination that the declarant was so excited or distraught at the moment of the statement that he or she did not reflect or have opportunity to reflect on what was said. Faletogo v. Am. Samoa Gov’t, 6 A.S.R.3d 22 (App. Div. 2002).

The trial court’s ruling on an excited utterance exception will not be disturbed on appeal unless the facts on which it relied are not supported by a preponderance of the evidence. Faletogo v. Am. Samoa Gov’t, 6 A.S.R.3d 22 (App. Div. 2002).

For a statement made at the scene of the crime to be admissible under the excited utterance exception, it must relate to a “startling event,” be instinctive, and spontaneous, and not be deliberate or retrospective. Faletogo v. Am. Samoa Gov’t, 6 A.S.R.3d 22 (App. Div. 2002).

Circumstances supported trial court’s admission of appellant’s wife’s under the excited utterance exception where wife had frightened demeanor, had recently been involved in confrontation, and had made excited call to the police. Faletogo v. Am. Samoa Gov’t, 6 A.S.R.3d 22 (App. Div. 2002).

Circumstances supported trial court’s decision not to admit appellant’s self-serving statement under the excited utterance exception where the statement came several minutes after he knew he was “in trouble”, and where appellant’s statement was not entirely “spontaneous” but, rather, in response to questioning. Faletogo v. Am. Samoa Gov’t, 6 A.S.R.3d 22 (App. Div. 2002).

The speaker’s mental state, not the nature of the statement, is the crucial factor in applying the excited utterance exception to the hearsay rule. Faletogo v. Am. Samoa Gov’t, 6 A.S.R.3d 22 (App. Div. 2002).

§8(2)(d)¾Then Existing Condition

RESERVED

§8(2)(e) ¾Statements for Medical Purposes

RESERVED

§8(2)(f) ¾ Past Recollection Recorded

RESERVED

§8(2)(g)¾Records of Regularly Conducted Activity

Under the hearsay-rule exception for records of regularly conducted activity, any writing made as a record of acts, events, conditions, opinions or diagnoses may be admitted as evidence of those matters if the writing: (a) was made at or near the time of the acts, events, conditions, opinions, or diagnoses recorded; (b) was made by, or from information transmitted by, a person with knowledge; (c) is kept in the course of a regularly conducted activity; and (d) was made as the regular practice of that activity. T.C.R.Ev. 803(6). Amerika Samoa Bank v. Groves, 24 A.S.R.2d 77.

§8(2)(h)¾Public Records & Reports

Report of emergency medical technician was inadmissible as evidence where it had not been certified as public record in accordance with T.C.R.Ev. 902(4). Am. Samoa Gov’t v. Agasiva, 6 A.S.R.3d 251 (Trial Div. 2002).

§8(2)(i) ¾Vital Statistic Records

RESERVED

§8(2)(j) ¾Religious Organization Records

RESERVED

§8(2)(k)¾Marriage & Baptismal Certificates

RESERVED

§8(2)(l) ¾Family Records

RESERVED

§8(2)(m)¾Records Affecting an Interest in Property

RESERVED

§8(2)(n)¾Ancient Documents

RESERVED

§8(2)(o)¾Market Reports & Compilations

RESERVED

§8(2)(p)¾Learned Treatises

RESERVED

§8(2)(q)¾Reputation of Family History

RESERVED

§ 8(2)(r) ¾Reputation of Boundaries

RESERVED

§8(2)(s) ¾Reputation of Character

RESERVED

§8(2)(t)¾Judgment of Prior Conviction

RESERVED

§8(2)(u)¾Judgment as to History

RESERVED

§8(3) ¾Exceptions when Declarant Unavailable

§8(3)(a)¾General Provisions

“Necessity” is exception to hearsay rule where refusal to admit hearsay statement will cause facts brought out by statement to be lost because person is dead or unavailable, or because assertion is of nature that same person or other sources could not be expected to be obtained. Ross v. Scanlan, 4 A.S.R. 913.

Declarations of deceased person are admissible against heirs claiming under deceased person, if they could be admissible against deceased, if living. Ross v. Scanlan, 4 A.S.R. 913.

§8(3)(b)¾Former Testimony

Statement in previous case acknowledging disputed debt will be viewed as admission and shall corroborate debt’s existence. Samoa Sharkfin Trading Co. v. Ho Py Hong, 1 A.S.R.3d 143 (Trial Div. 1997).

§8(3)(c) ¾Dying Declaration

RESERVED

§8(3)(d)¾Statement Againt Interest

RESERVED

§8(3)(e) ¾Statement of Personal, Family History

RESERVED

§8(4) ¾Hearsay Within Hearsay

RESERVED

§9 Authentication and Identification

§9(1) ¾General Rule

Notarization serves to assure the authenticity and validity of signatory’s assent to a document, and there is a strong presumption that a notarized signature is valid. Mailo v. Soane, 4 A.S.R.2d 140.

Notarization of defendant’s alleged signature on a deed, together with similarity of some characters in the signature to undisputed specimens of defendant’s handwriting, was evidence that could not be overcome by defendant’s assertion that the signature on the deed was forged. Mailo v. Soane, 4 A.S.R.2d 140.

Presumption of a document’s validity was not overcome by evidence that a signature on the document was forged when the person whose signature was allegedly forged was available as a witness but not called by the party asserting the forgery. Satele v. Uiagalelei, 6 A.S.R.2d 143.

That territorial registrar’s office had abandoned its former practice of using unsworn certificates rather than notarized affidavits as evidence of posting, and that the new practice was more desirable, did not render the former practice illegal. Meafua v. Taliu (Mem.), 13 A.S.R.2d 74.

Even if territorial registrar had expressed a legal opinion on whether procedure followed by former registrar would render a registration invalid, this would be a question of law on which the court must make its own judgment. Meafua v. Taliu (Mem.), 13 A.S.R.2d 74.

Objection to court’s finding that the signature on a deed was not a forgery, where the objecting party had judicially admitted that he signed the deed, had had every opportunity to examine the document before trial, and had even appended it to his complaint as Exhibit A, but had testified for the first time at trial that he had not signed the document after all, was without merit. Vaimaona v. Tuitasi (Mem.), 13 A.S.R.2d 76.

It is not necessary that evidence be accompanied by an affirmative stipulation with respect to its accuracy. Solomona v. Governor of American Samoa, 18 A.S.R.2d 14.

Handwriting comparison by the trier of fact is a recognized means of authenticating documents. 28 U.S.C. § 1731; T.C.R.Ev. 901(a), (b)(3). Amerika Samoa Bank v. Groves, 24 A.S.R.2d 77.

§9(2) ¾Self-Authentication

RESERVED

§ 10 Contents of Writings, Recordings & Photographs

§10(1) ¾Generally

Even if references in defendants’ letter and statement to medical records were insufficient foundation to consider medical records as evidence, each of these sources is evidence of contents of medical record. Langkilde v. Nat’l W. Life Ins. Co., 6 A.S.R.3d 198 (Trial Div. 2002).

§10(2) ¾Best Evidence Rule

Recordation of a genuine copy of a deed is permitted under certain circumstances, as being similar to the evidentiary admission of a copy of an instrument as an exception to the best evidence rule. R.O.E. 1002, 1003, 1004(1). Vaimaona v. Tuitasi, 22 A.S.R.2d 1.

As the rules of evidence aim at obtaining the best available evidence when the contents of a document are intimately related to governing issues, photocopied duplicates are accurate and so are substantially given the status of originals. T.C.R.Ev. 1003. Amerika Samoa Bank v. Groves, 24 A.S.R.2d 77.

§10(3) ¾Duplicates

Although duplicates are generally admissible in lieu of originals, genuinely contested authenticity requires production of the original document; however, mere assertions do not create a genuine question as to authenticity. T.C.R.Ev. 1003. Amerika Samoa Bank v. Groves, 24 A.S.R.2d 77.

§10(4) ¾Other Evidence of Lost, Unobtainable, or Other Documents

In resolving dispute over ownership of land, court will consider evidence of who was using land in absence of written record of title. Satele v. Afoa, 1 A.S.R. 424.

Where no written record exists revealing ownership of land, the best evidence of such ownership is that which shows who has been using land for the past 20 years under claim of right and without objection by other parties. Satele v. Afoa, 1 A.S.R. 467.

Document containing family history was admissible into evidence because it was over thirty years old, thus establishing its authenticity by age and because it was corroborated by unimpeached eye witness. Malaeola v. Nu’u, 2 A.S.R. 549.

Extrinsic evidence of a document’s contents may be presented upon a showing of the practical inability to obtain the document itself. T.C.R.Ev. 1004. Amerika Samoa Bank v. Groves, 24 A.S.R.2d 77.

§10(5) ¾Public Records

SEE AMERICAN SAMOA GOVERNMENT § 7 – PUBLIC RECORDS

§10(6) ¾Summaries

RESERVED

§10(7) ¾Admission of Party

EVIDENCE

EVIDENCE

§8 Hearsay

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