2010 Wyoming Statutes
Title 1 - Code Of Civil Procedure
Chapter 12 - Evidence And Witnesses

CHAPTER 12 - EVIDENCE AND WITNESSES

 

ARTICLE 1 - WITNESSES GENERALLY

 

1-12-101. Privileged communications and acts.

 

(a) The following persons shall not testify in certain respects:

 

(i) An attorney or a physician concerning a communication made to him by his client or patient in that relation, or his advice to his client or patient. The attorney or physician may testify by express consent of the client or patient, and if the client or patient voluntarily testifies the attorney or physician may be compelled to testify on the same subject;

 

(ii) A clergyman or priest concerning a confession made to him in his professional character if enjoined by the church to which he belongs;

 

(iii) Husband or wife, except as provided in W.S. 1-12-104;

 

(iv) A person who assigns his claim or interest concerning any matter in respect to which he would not be permitted to testify if a party;

 

(v) A person who, if a party, would be restricted in his evidence under W.S. 1-12-102 shall, where the property is sold or transferred by an executor, administrator, guardian, trustee, heir, devisee or legatee, be restricted in the same manner in any action or proceeding concerning the property;

 

(vi) A confidential intermediary, as defined in W.S. 1-22-201(a)(viii), concerning communications made to him or information obtained by him during the course of an investigation pursuant to W.S. 1-22-203, when the public interests, in the judgment of the court, would suffer by the disclosure.

 

1-12-102. When party incapable of testifying.

 

In an action or suit by or against a person who from any cause is incapable of testifying, or by or against a trustee, executor, administrator, heir or other representative of the person incapable of testifying, no judgment or decree founded on uncorroborated testimony shall be rendered in favor of a party whose interests are adverse to the person incapable of testifying or his trustee, executor, administrator, heir or other representative. In any such action or suit, if the adverse party testifies, all entries, memorandum and declarations by the party incapable of testifying made while he was capable, relevant to the matter in issue, may be received in evidence.

 

1-12-103. Compelling testimony of adverse parties in civil and criminal actions.

 

A party may compel the adverse party to testify orally or by deposition as any other witness, and no person is disqualified as a witness in any action, civil or criminal, because of his interest in the same as a party or otherwise. Every person is a competent witness except as otherwise provided by law, but his interest in the action may be shown to affect the credibility of the witness. Any party of record in a civil action, or any person for whose immediate benefit the action is prosecuted or defended, or his assignor, officer, agent or employee or if a county or city is a party any officer of the county or city, may be examined upon the trial of any action as if under cross-examination at the instance of the adverse party and may be compelled to testify subject to the same rules for examination as any other witness. The party calling for the examination is not concluded thereby and may rebut the evidence given by counter or impeaching testimony.

 

1-12-104. Husband and wife as witnesses in civil and criminal cases.

 

No husband or wife shall be a witness against the other except in criminal proceedings for a crime committed by one against the other, or in a civil action or proceeding by one against the other. They may in all civil and criminal cases be witnesses for each other the same as though the marital relation did not exist.

 

1-12-105. Right of witness to demand fees; failure to pay; payments noted.

 

After the case is called for trial and before a witness is sworn, he may demand his traveling fees and fees for one (1) day's attendance. If the fees are not paid he is not obliged to testify. At the commencement of the trial each day after the first day he may demand his fees for that day's attendance and if the fees are not paid he shall not be compelled to remain. The clerk shall note the payment of fees in the witness book.

 

1-12-106. Contempt of court by witness.

 

Disobedience of a subpoena, refusal to be sworn except for refusal to pay fees on demand, or refusal to answer as a witness or to subscribe a deposition when lawfully ordered, may be punished as a contempt of the court or officer who required the attendance or testimony of the witness.

 

1-12-107. Attachment of witness who disobeys subpoena.

 

When a witness fails to attend in obedience to a subpoena, the court or officer before whom his attendance is required may issue an attachment to the sheriff of the county commanding him to arrest and bring the person named before the court at a time and place fixed in the attachment, to give his testimony and answer for the contempt. If the attachment is not for immediately bringing the witness before the court or officer, a sum may be fixed in which the witness may give bond with surety for his appearance. The sum shall be endorsed on the back of the attachment. If no sum is fixed and endorsed, it shall be one hundred dollars ($100.00). If the witness was not personally served, the court may order him to show cause why an attachment should not issue against him.

 

1-12-108. Punishment for contempt by witness.

 

(a) Punishment for the contempt mentioned in W.S. 1-12-106 is as follows:

 

(i) When the witness fails to attend in obedience to a subpoena, the court or officer may fine him not more than fifty dollars ($50.00);

 

(ii) In other cases the court or officer may fine the witness not more than fifty dollars ($50.00) nor less than five dollars ($5.00), or may imprison him in the county jail until he submits to be sworn, testifies or gives his deposition.

 

(b) The fine imposed shall be paid into the county treasury.

 

(c) The witness is also liable to the party injured for any damages occasioned by his failure to attend, his refusal to be sworn, to testify or give his deposition.

 

1-12-109. Discharge of imprisoned witness.

 

Upon application of a witness imprisoned by an officer, a judge of the supreme court or district court may discharge him if it appears that his imprisonment is illegal.

 

1-12-110. Attachment for arrest or order of commitment; execution.

 

Every attachment for the arrest or order of commitment to prison of a witness by a court or officer must be under the seal of the court or officer, if the officer has an official seal, and must specify particularly the cause of the arrest or commitment. If the commitment is for a refusal to answer a question, the question must be stated in the order and the order of commitment directed to the sheriff of the county where the witness resides or may be found at that time. It shall be executed by committing the witness to the jail of the county and delivering a copy of the order to the jailer.

 

1-12-111. Procuring testimony of imprisoned witness.

 

When it is necessary to procure testimony of a person confined in the state penitentiary or any jail or reformatory, in the trial of any issue in an indictment or information, or in any hearing before a grand jury, the court may order a subpoena issued, directed to the warden of the state penitentiary or the superintendent of the jail or reformatory commanding him to bring the witness named in the subpoena before the court. The warden, superintendent or sheriff shall take the witness before the court at the time and place named in the subpoena and hold him until he is discharged by the court. When discharged he shall be returned by the officer to the place of imprisonment from which he was taken. The officer may command such assistance as he deems proper for the safe transportation of the witness. When the witness is in attendance of any court he may be placed for safekeeping in the jail of the county. The county in which the offense was alleged to have been committed shall pay the actual and necessary expenses of producing, keeping and returning the witness.

 

1-12-112. Taking of prisoner's deposition.

 

While a prisoner's deposition is being taken he shall remain in the custody of the officer having charge of him. The officer shall afford reasonable facilities for the taking of the deposition.

 

1-12-113. Immunity of witness obeying subpoena.

 

A witness may not be served with a summons or sued in a county in which he does not reside while going, returning or attending in obedience to a subpoena.

 

1-12-114. Oath of witness.

 

Before testifying the witness shall be sworn to testify the truth, the whole truth and nothing but the truth.

 

1-12-115. Testimony for use in foreign jurisdiction.

 

Whenever any mandate, writ or commission is issued from any court of record in any foreign jurisdiction, or whenever upon notice or agreement it is required to take the testimony of a witness in this state, the witness may be compelled to appear and testify in the same manner and by the same process as employed for taking testimony in matters pending in the courts of this state.

 

1-12-116. Confidential communications between family violence and sexual assault advocate and victim.

 

(a) As used in this section:

 

(i) "Advocate" or "family violence or sexual assault advocate" means a person who is employed by or volunteers services to any family violence and sexual assault program, who is certified by the program as having undergone at least forty (40) hours of crisis advocacy training and whose work is directed and supervised under a family violence and sexual assault program;

 

(ii) "Confidential communication" means information transmitted in confidence between a victim and an advocate in the course of that relationship and includes all information received by, and any report, working paper or document prepared by the advocate in the course of that relationship;

 

(iii) "Crisis services to victims of family violence and sexual assault" means emergency and follow-up intervention, information, referral services and medical, legal and social services advocacy;

 

(iv) "Family violence and sexual assault program" means a program whose primary purpose is to offer shelter and crisis services to victims of family violence and sexual assault through any community facility or center;

 

(v) "Shelter" means a place of temporary refuge, offered on a twenty-four (24) hour, seven (7) day per week basis to victims and their children;

 

(vi) "Victim" means a person who has been subjected to sexual assault as defined by W.S. 6-2-301(a)(v), incest as defined by W.S. 6-4-402 or domestic abuse as defined by W.S. 35-21-102(a)(iii).

 

(b) Except as provided by W.S. 14-3-210, a person exempted from testifying under the provisions of W.S. 1-12-116 shall not be examined as a witness in any civil, criminal, legislative or administrative proceeding concerning the following communications and information:

 

(i) An advocate shall not testify concerning a confidential communication made by a victim in the course of that relationship, except the advocate:

 

(A) May testify:

 

(I) With the express consent of the victim; or

 

(II) If the victim voluntarily testifies, provided the advocate's testimony shall be limited to the same subject matter.

 

(B) May be compelled to testify if the victim is unable to testify due to death or incompetence.

 

(ii) Any employee of a family violence and sexual assault program who has access to confidential communication shall not testify except in those circumstances where the advocate may testify.

 

ARTICLE 2 - DOCUMENTARY EVIDENCE GENERALLY

 

1-12-201. Copies of documents filed with interstate commerce or public service commissions.

 

Printed copies of schedules, classifications and tariffs of rates, fares, charges, rules and regulations and supplements thereto, filed with the interstate commerce commission or the public service commission, which show respectively an interstate commerce commission number and an effective date or a public service commission number and an effective date, may be received in evidence without certification and shall be presumed to be correct copies of the originals on file with the interstate commerce commission or on file with the public service commission.

 

ARTICLE 3 - JUDICIAL NOTICE OF FOREIGN LAW

 

1-12-301. Proof of laws of foreign jurisdictions.

 

Printed copies of written law enacted by any other state, territory or foreign government purporting or proved to have been published by the authority thereof, or proved to be commonly admitted as evidence of the existing law in the courts or tribunals of the state, territory or government shall be admitted by the courts and officers of this state on all occasions as prima facie evidence of the law. The unwritten or common law of any other state, territory or foreign government may be proved by parol evidence and the books of reports of cases adjudicated in their courts may also be admitted as prima facie evidence of the law.

 

1-12-302. Judicial notice required.

 

Every court of this state shall take judicial notice of the common law and statutes of every state, territory and other jurisdiction of the United States.

 

1-12-303. Manner of obtaining information.

 

The court may inform itself of foreign laws in such manner as it deems proper, and the court may call upon counsel to aid in obtaining such information.

 

1-12-304. Determination of foreign law; reviewability.

 

The determination of foreign laws shall be made by the court and not by the jury, and is reviewable.

 

1-12-305. Reasonable notice to be given adverse party.

 

Any party may present to the trial court any admissible evidence of foreign laws, but to enable a party to offer evidence of the law in another jurisdiction or to ask that judicial notice be taken thereof, reasonable notice shall be given to the adverse parties in the pleadings or otherwise.

 

1-12-306. Laws of jurisdictions outside United States.

 

The law of a jurisdiction other than a state, territory or jurisdiction of the United States, is an issue for the court but is not subject to the foregoing provisions concerning judicial notice.

 

ARTICLE 4 - CAPTURED, MISSING OR DEAD PERSONS

 

1-12-401. Written finding of presumed death admissible as evidence.

 

 

 

 

 

1-12-402. Official report that person is missing or captured as evidence of person's condition.

 

An official written report, record or certified copy thereof that a person is missing, missing in action, interned in a neutral country, beleaguered, besieged, captured by an enemy or is dead or alive, made by any officer or employee of the United States authorized by any law of the United States to make the report or copy, shall be received in any court, office or other place in this state as evidence of the condition of that person.

 

1-12-403. Findings and reports and records deemed prima facie valid.

 

For the purposes of W.S. 1-12-401 and 1-12-402, any finding, report, record or certified copy purporting to have been signed by an officer or employee of the United States shall be deemed prima facie to have been signed and issued by the officer or employee pursuant to law, and the person signing shall be deemed prima facie to have acted within the scope of his authority. If a copy purports to have been certified by a person authorized by law to certify the same, such certified copy shall be prima facie evidence of his authority.

 

ARTICLE 5 - PRESUMPTIONS

 

1-12-501. Survivorship upon simultaneous death.

 

(a) When two (2) persons perish in the same calamity and it is not shown who died first and there are no particular circumstances from which it can be inferred, survivorship is presumed from the probabilities resulting from the strength, age and sex, according to the following rules:

 

(i) If both of those who have perished were under the age of fifteen (15) years, the older is presumed to have survived;

 

(ii) If both were of the age of sixty (60) years or older, the younger is presumed to have survived;

 

(iii) If one is under fifteen (15) years of age and the other is sixty (60) years of age or older, the former is presumed to have survived;

 

(iv) If both are fifteen (15) years of age or older and under sixty (60) years of age, and the sexes are different, the male is presumed to have survived. If the sexes are the same, the older will be presumed to have survived;

 

(v) If one is under the age of fifteen (15) years or is sixty (60) years of age or older, and the other is between those ages, the latter is presumed to have survived.

 

1-12-502. Renumbered by Laws 1979, ch. 142, 3.

 

 

ARTICLE 6 - BURDEN OF PROOF

 

1-12-601. Injury by health care providers; burden of proof.

 

(a) In an action for injury alleging negligence by a health care provider the plaintiff shall have the burden of proving:

 

(i) If the defendant is certified by a national certificating board or association, that the defendant failed to act in accordance with the standard of care adhered to by that national board or association; or

 

(ii) If the defendant is not so certified, that the defendant failed to act in accordance with the standard of care adhered to by health care providers in good standing performing similar health care services.

 

(b) In either paragraph (a)(i) or (ii) of this section, variations in theory of medical practice or localized circumstances regarding availability of equipment, facilities or supplies may be shown to contravene proof offered on the applicable standard of care.