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TITLE III

The Production of Evidence

Chapter I. By Whom to Be Produced.

II. Means of Production.
III. Manner of Production.

CHAPTER I

By Whom to Be Produced

$ 1981. Evidence to be produced by whom.
§ 1982. Writing altered, who to explain.
$ 1983. Proof of citizenship or residence.

$ 1981. Evidence to be produced by whom. The party holding the affirmative of the issue must produce the evidence to prove it; therefore, the burden of proof lies on the party who would be defeated if no evidence were given on either side. [Enacted 1953.) [Burden of proof: see Jones v. Warmee (1955) 225 F.2d. 258.)

§ 1982. Writing altered, who to explain. The party producing a writing as genuine which has been altered, or appears to have been altered, after its execution, in a part material to the question in dispute, must account for the appearance or alteration. He may show that the alteration was made by another, without his concurrence, or was made with the consent of the parties affected by it, or otherwise properly or innocently made, or that the alteration did not change the meaning or language of the instrument. If he does that, he may give the writing in evidence, but not otherwise. (Enacted 1953.]

$ 1983. Proof of citizenship or residence. Whenever in any action or proceeding, civil or criminal, brought by or in the name of the government of Guam, or by any public board or officer on behalf thereof, to enforce any law which denies any right, privilege, or license to any person not a citizen of the United States, or not eligible to become such citizen, or to a person not a citizen or resident of Guam, and whenever in any action or proceeding in which the government of Guam or any public board or officer acting on behalf thereof, is or becomes a party, it is alleged in the pleading therein filed on behalf of the government of Guam or of such board or officer thereof, that such right, privilege or license thas been exercised by a person not a citizen of the United States, or not eligible to become such citizen, or by a person not a citizen or resident of Guam, as the case may be, the burden shall be upon the party for or on whose behalf such pleading was filed to establish the fact that such right, privilege, or license was exercised by the person alleged to have exercised the same, and upon such fact being so established, the burden shall be upon such person or upon any person, firm, or corporation claiming under or through the exercise of such right, privilege, or license to establish the fact that the person alleged to have exercised such right, privilege, or license was, at the time of so exercising the same, a citizen of the United States, or eligible to become such citizen, or was a citizen or resident of Guam, as the case may require, and was at said time legally entitled to exercise such right, privilege or license. (Enacted 1953.]

CHAPTER II

Means of Production

§ 1985. Subpoena for witness defined.
$ 1986. Subpoena, how issued.
§ 1987. Subpoena, how served.
§ 1988. How, if witness be concealed.
§ 1990. Person present compelled to testify.
§ 1991. Disobedience to subpoena, how punished.
$ 1992. Forfeiture therefor.
$ 1993. Warrant may issue to being witness, when.
$ 1994. Contempt of warrant.
§ 1995. If a witness be a prisoner, how brought.
$ 1996. On whose motion.

§ 1985. Subpoena for witness defined. The process by which the attendance of a witness is required is a "subpoena.” It is a writ or order directed to a person and requiring his attendance at particular time and place to testify as a witness. It may also require him to bring with him any books, documents, or other things under his control which he is bound by law to produce in evidence. [Enacted 1953.)

§ 1986. Subpoena, how issued. A subpoena is issued as follows:

1. To require attendance before a court, or at the trial of an issue therein, or upon the taking of a deposition in an action or proceeding pending therein, it is issued by the clerk of the court in which the action or proceeding is pending, under the seal of the court, or if there is no clerk or seal, then by a judge or justice of such court;

2. To require attendance out of court, in cases not provided for in subdivision (1), before a judge, justice or other officer authorized to administer oaths or take testimony in any matter under the laws of Guam, it is issued by the judge, justice, or other officer before whom the attendance is required.

If the subpoena is issued to require attendance before a court, or at the trial of an issue therein, it is issued by the clerk, as of course, upon the application of the party desiring it. If it is issued to require attendance before a referee or other officer upon the taking of a deposition, it must be issued by the clerk

court, upon the application of the party desiring it, upon proper showing by affidavit to be filed with said clerk. [Enacted 1953.]

§ 1987. Subpoena, how served. The service of a subpoena is made by showing the original and delivering a copy, or a ticket containing its substance, to the witness personally, giving or offering to him at the same time, if demanded by him, the cost to which he is entitled for travel to and from the place designated or an offer to furnish necessary transportation. The service must be made so as to allow the witness a reasonable time for preparation and travel to the place of attendance. Such service may be made by any person. [Enacted 1953.)

§ 1988. How, if witness be concealed. If a witness is concealed in a building or vessel, so as to prevent the service of a subpoena upon him, any court or judge, or any officer issuing the subpoena, may, upon proof by affidavit of the concealment, and of the materiality of the witness, make an order that the Director of Public Safety of Guam or any peace officer serve the subpoena; and the Director of Public Safety or such peace officer must serve it accordingly, and for that purpose may break into the building or vessel where the witness is concealed. [Enacted 1953.]

§ 1990. Person present compelled to testify. A person present in court, or before a judicial officer, may be required to testify in the same manner as if he were in attendance upon a subpoena issued by such court or officer. [Enacted 1953.)

§ 1991. Disobedience to subpoena, how punished. Disobedience to a subpoena, or a refusal to be sworn, or to answer as a witness, or to subscribe an affidavit or deposition when required, may be punished as a contempt by the court issuing the subpoena. When the subpoena in any such case requires the attendance of the witness before an officer or referee out of court, it is the duty of such officer or referee to report any such disobedience or refusal to the court issuing the subpoena; and the witness must not be punished for any refusal to answer a question or to subscribe an affidavit or deposition, unless, after a hearing upon notice, the court orders him to so answer or subscribe, and then only for disobedience to such order. Any judge, justice, or other officer mentioned in subdivision (2) of § 1986 may report any disobedience or refusal to the court having jurisdiction; and such court thereupon has power, upon notice, to order the witness to perform the omitted act, and any refusal or neglect to comply with such order may be punished as a contempt of such court. (Enacted 1953.)

§ 1992. Forfeiture therefor. A witness disobeying a subpoena also forfeits to the party aggrieved the sum of ten dollars ($10.00), and all damages which he may sustain by the failure of the witness to attend, which forfeiture and damages may be recovered in a civil action. (Enacted 1953.]

$ 1993. Warrant may issue to bring witness, when. In case of failure of a witness to attend, the court or officer issuing the subpoena, upon proof of the service thereof, and of the failure of the witness, may issue a warrant to any peace officer of Guam to arrest the witness and bring him before the court or officer where his attendance was required. [Enacted 1953.]

$ 1994. Content of warrant. Every warrant of commitment, issued by a court or officer pursuant to this Chapter, must specify therein, particularly the cause of the commitment, and if it be for refusing to answer a question, such question must be stated in the warrant. And every warrant to arrest or commit a witness, pursuant to this Chapter, must be directed to the Director of Public Safety, or other peace officer, and must be executed by him in the same manner as process issued by the court having jurisdiction. [Enacted 1953.]

§ 1995. If a witness be a prisoner, how brought. If the witness be a prisoner, confined in a jail within Guam, an order for his examination in the jail upon deposition, or for his temporary removal and production before a court or officer, for the purpose of being orally examined, may be made as follows:

1. By the court itself in which the action or special proceeding is pending. (Enacted 1953.]

§ 1996. On whose motion. Such order can only be made on the motion of a party, upon affidavit showing the nature of the action or proceeding, the testimony expected from the witness, and its materiality. [Enacted 1953.)

CHAPTER III

Manner of Production

Article I. Mode of Taking the Testimony of Witnesses.

II. Affidavits.
III. Depositions.
IV. Manner of Taking Depositions Out of Guam.

V. Manner of Taking Depositions in Guam.
VI. General Rules of Examination.

ARTICLE I

Mode of Taking the Testimony of Witnesses

§ 2002. Testimony, in what mode taken.
$ 2003. Affidavit defined.
$ 2004. Deposition defined.

2005. Oral examination defined. 8 2006. Depositions, how taken.

$ 2002. Testimony, in what mode taken. The testimony of witness is taken in three (3) modes:

1. By affidavit;
2. By deposition;
3. By oral examination. (Enacted 1953.)

$ 2003. Affidavit defined. An "affidavit” is a written declaration under oath, made without notice to the adverse party. (Enacted 1953.)

$ 2004. Deposition defined. A "deposition” is a written declaration, under oath, made upon notice to the adverse party,

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