2019 Montana Legislature
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HOUSE BILL NO. 442
INTRODUCED BY J. READ
A BILL FOR AN ACT ENTITLED: "AN ACT GENERALLY REVISING EVIDENCE LAWS; DEFINING THE TERM "OBJECTIVE EVIDENCE"; REQUIRING THE TESTIMONY OF ONE WITNESS TO BE SUPPORTED BY CORROBORATIVE AND OBJECTIVE EVIDENCE OR THE TESTIMONY OF TWO WITNESSES TO PROVE A FACT; ESTABLISHING THE PRESUMPTION THAT A SINGLE WITNESS TO A FACT IS MISTAKEN; ESTABLISHING A METHOD FOR OVERCOMING PRESUMPTION OF MISTAKE; AMENDING THE BURDEN OF PROOF FOR SITUATIONS IN WHICH A FACT ASSERTED BY A SINGLE WITNESS IS DISPUTED; REQUIRING THE TESTIMONY OF ONE WITNESS SUPPORTED BY CORROBORATIVE AND OBJECTIVE EVIDENCE OR THE TESTIMONY OF TWO WITNESSES TO SUSTAIN A CONVICTION; AND AMENDING SECTIONS 26-1-102, 26-1-301, 26-1-302, 26-1-401, 46-15-323, AND 46-16-202, MCA."
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:
Section 1. Section 26-1-102, MCA, is amended to read:
"26-1-102. Definitions -- kinds of evidence. (1) "Circumstantial evidence" is evidence that which tends to establish a fact by proving another and which, though true, does not of itself conclusively establish that fact but affords an inference or presumption of its existence.
(2) (a) "Conclusive evidence" is evidence that which the law does not permit to be contradicted.
(b) No evidence is by law made conclusive unless so declared by statute.
(3) "Corroborative evidence" is additional evidence of a different character to the same point.
(4) "Cumulative evidence" is additional evidence of the same character to the same point.
(5) "Direct evidence" is evidence that which proves a fact without an inference or presumption and which in itself, if true, establishes that fact.
(6) "Objective evidence" is documentary, electronic, or physical evidence that is capable of entry into a court record as an exhibit, that is independent of an eyewitness or observer, and that corroborates the testimony of the eyewitness or observer.
(6)(7) "Prima facie evidence" is that which proves a particular fact until contradicted and overcome by other evidence."
Section 2. Section 26-1-301, MCA, is amended to read:
"26-1-301. One witness sufficient to prove assert a fact -- one witness supported by additional evidence, or two witnesses, sufficient to prove fact. (1) The direct evidence of one witness who is entitled to full credit is sufficient for proof of to assert any fact, except perjury and treason.
(2) The direct evidence of one witness who is entitled to full credit and that is supported by corroborative and objective evidence is sufficient for proof of any fact, except perjury or treason.
(3) The direct evidence of two witnesses who are entitled to full credit is sufficient for proof of any fact."
Section 3. Section 26-1-302, MCA, is amended to read:
"26-1-302. Witness presumed to speak the truth -- how presumption rebutted -- single witness presumed to be mistaken -- how presumption rebutted. (1) A witness is presumed to speak the truth. The jury or the court in the absence of a jury is the exclusive judge of a witness's credibility. This presumption may be controverted and overcome by any matter that has a tendency to disprove the truthfulness of a witness's testimony. The matters include but are not limited to:
(1)(a) the demeanor or manner of the witness while testifying;
(2)(b) the character of the witness's testimony;
(3)(c) bias of the witness for or against any party involved in the case;
(4)(d) interest of the witness in the outcome of the litigation or other motive to testify falsely;
(5)(e) the witness's character for truth, honesty, or integrity;
(6)(f) the extent of the witness's capacity and opportunity to perceive or capacity to recollect or to communicate any matter about which the witness testifies;
(7)(g) inconsistent statements of the witness;
(8)(h) an admission of untruthfulness by the witness;
(9)(i) other evidence contradicting the witness's testimony.
(2) A single witness asserting a fact is presumed to be mistaken. The presumption may be controverted and overcome with:
(a) testimony by an additional witness who is entitled to full credit asserting the fact; or
(b) corroborative and objective evidence."
Section 4. Section 26-1-401, MCA, is amended to read:
"26-1-401. Who has burden of producing evidence. (1) The initial burden of producing evidence as to a particular fact is on the party who would be defeated if no evidence were given on either side. Thereafter, the burden of producing evidence is on the party who would suffer a finding against that party in the absence of further evidence.
(2) If a fact asserted by a single witness is disputed by a fact asserted by another single witness who is entitled to full credit, the party bearing the burden of proof must produce an additional witness who is entitled to full credit or produce corroborative and objective evidence to meet the party's burden of proof as to the fact asserted."
Section 5. Section 46-15-323, MCA, is amended to read:
"46-15-323. Disclosure by defendant. (1) At any time after the filing in district court of an indictment or information and after a finding by the court that the indictment or information is supported by the sworn statement of one witness and by corroborative and objective evidence or the indictment or information is supported by the sworn statements of two witnesses, the defendant, in connection with the particular crime charged and upon written request of the prosecutor and approval of the court:
(a) shall appear in a lineup;
(b) shall speak for identification by witnesses;
(c) must be fingerprinted, palm printed, footprinted, or voiceprinted;
(d) shall pose for photographs not involving reenactment of an event;
(e) shall try on clothing;
(f) shall permit the taking of samples of the defendant's hair, blood, saliva, urine, or other specified materials that do not involve unreasonable bodily intrusions;
(g) shall provide handwriting samples; or
(h) shall submit to a reasonable physical or medical inspection; however, the inspection does not include psychiatric or psychological examination.
(2) Within 30 days after the arraignment or at a later time as the court may for good cause permit, the defendant shall provide the prosecutor with a written notice of the defendant's intention to introduce evidence at trial of good character or the defenses of alibi, compulsion, entrapment, justifiable use of force, or mistaken identity.
(3) Within 10 days after receiving a report of the defendant's mental condition from a psychiatrist, psychologist, or advanced practice registered nurse or at a later time as the court may for good cause permit, the defendant shall provide the prosecutor with a written notice of the defendant's intention to introduce evidence at trial of the defense that because of a mental disease or disorder, the defendant did not have a particular state of mind that is an essential element of the offense charged.
(4) The notice must specify for each defense the names and addresses of the persons, other than the defendant, whom the defendant may call as witnesses in support of the defense, together with all written reports or statements made by them, including all reports and statements concerning the results of physical examinations, scientific tests, experiments, or comparisons, except that the defendant need not include a privileged report or statement unless the defendant intends to use the privileged report or statement, or the witness who made it, at trial.
(5) Prior to trial, the defendant may, upon motion and showing of good cause, add to the list of witnesses the names of any additional witnesses and disclose their reports or statements as required by this section. After the trial commences, no witness may be called by the defendant in support of these defenses unless the name of the witness is included on the list and the witness's report or statement has been disclosed as required by this section, except for good cause shown.
(6) Within 30 days after the arraignment or at a later time as the court may for good cause permit, the defendant shall make available to the prosecutor for testing, examination, or reproduction:
(a) the names, addresses, and statements of all persons, other than the defendant, whom the defendant may call as witnesses in the defense case in chief, together with their statements;
(b) the names and addresses of experts whom the defendant may call at trial, together with the results of their physical examinations, scientific tests, experiments, or comparisons, including all written reports and statements made by these experts in connection with the particular case; and
(c) all papers, documents, photographs, and other tangible objects that the defendant may use at trial.
(7) The defendant's obligation under this section extends to material and information within the possession or control of the defendant, defense counsel, and defense counsel's staff or investigators.
(8) Upon motion of the prosecutor showing that the prosecutor has substantial need in the preparation of the case for additional material or information not otherwise provided for, that the prosecutor is unable, without undue hardship, to obtain the substantial equivalent by other means, and that disclosure of the material or information will not violate the defendant's constitutional rights, the court, in its discretion, may order any person to make the material or information available to the prosecutor. The court may, upon request of any person affected by the order, vacate or modify the order if compliance would be unreasonable or oppressive. The defense counsel may not be required to prepare or disclose summaries of witnesses' testimony."
Section 6. Section 46-16-202, MCA, is amended to read:
"46-16-202. Evidence required in a criminal trial -- evidence on trial for treason. (1) Except as provided in subsection (2), a defendant in a criminal trial may not be convicted unless on the testimony of a witness who is entitled to full credit and is supported by corroborative and objective evidence or on the testimony of two witnesses who are entitled to full credit for each fact necessary to sustain a conviction.
(2) Upon a trial for treason, the defendant cannot may not be convicted unless upon on the testimony of two witnesses to the same overt act or upon on confession in open court,. nor can evidence Evidence may not be admitted of an overt act not expressly charged in the indictment or information, nor can and the defendant may not be convicted unless one or more overt acts be are expressly alleged therein in the indictment or information."
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Latest Version of HB 442 (HB0442.01)
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