Evidence and Witnesses

Del. Code tit. 10, ch. 43
in effect

Del. Code tit. 10, § 4301 Liability of witnesses for failure to appear or testify.

If any person, duly summoned by process to attend as a witness before any court, justice of the peace, or other officer, lawfully authorized to issue the same, without reasonable excuse, fails to attend, according to the direction of such process; or attending refuses to testify when required by such court, justice of the peace, or other officer, such person shall be liable to the aggrieved party for all damages occasioned by such failure or refusal, to be recovered in a civil action.

Del. Code tit. 10, § 4302 Competency to testify.

No child under the age of 10 years may be excluded from giving testimony for the sole reason that such child does not understand the obligation of an oath. Such child’s age and degree of understanding of the obligation of an oath may be considered by the trier of fact in judging the child’s credibility.

Del. Code tit. 10, § 4303-4310 §§ 4303-4310. Testimony of convicted felon; testimony of husband or wife; acts of General Assembly as evidence; proof of Maryland records; proof of ordinances and resolutions of Wilmington; official records and papers as evidence; business records as competent evidence [Repealed].

Repealed by 63 Del. Laws, c. 62, § 1, effective June 30, 1981.

Del. Code tit. 10, § 4311 Delaware Uniform Interstate Depositions and Discovery Act.

(a) Short title. — This section may be cited as the “Delaware Uniform Interstate Depositions and Discovery Act.” (b) Definitions. — In this section: (1) “Foreign jurisdiction” means a state other than Delaware. (2) “Foreign subpoena” means a subpoena issued under authority of a court of record of a foreign jurisdiction. (3) “Person” means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, public corporation, government, or governmental subdivision, agency or instrumentality, or any other legal or commercial entity. (4) “State” means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, a federally recognized Indian tribe, or any territory or insular possession subject to the jurisdiction of the United States. (5) “Subpoena” means a document, however denominated, issued under authority of court of record requiring a person to: a. Attend and give testimony at a deposition; b. Produce and permit inspection and copying of designated books, documents, records, electronically stored information, or tangible things in the possession, custody, or control of the person; or c. Permit inspection of premises under the control of the person. (c) Issuance of a subpoena. — (1) To request issuance of a subpoena under this section, a party must submit a foreign subpoena to the prothonotary in the county in which discovery is sought to be conducted in this State. A request for the issuance of a subpoena under this act does not constitute an appearance in the courts of this State. (2) When a party submits a foreign subpoena to a prothonotary in this State, the prothonotary, in accordance with the court’s procedure, shall promptly issue a subpoena for service upon the person to which the foreign subpoena is directed. (3) A subpoena issued under paragraph (c)(2) of this section must: a. Incorporate the terms used in the foreign subpoena; and b. Contain or be accompanied by the names, addresses, and telephone numbers of all counsel of record in the proceeding to which the subpoena relates and of any party not represented by counsel. (d) Service of subpoena. — A subpoena issued by a prothonotary under subsection (c) of this section must be served in compliance with this title and applicable Superior Court Rules for service of subpoena. (e) Deposition, production, and inspection. — This title and applicable court rules of this State applicable to compliance with subpoenas to attend and give testimony, produce designated books, documents, records, electronically stored information, or tangible things, or permit inspection of premises apply to subpoenas issued pursuant to subsection (c) of this section. (f) Application to Court. — An application to the Superior Court for a protective order or to enforce, quash, or modify a subpoena issued by the prothonotary under subsection (c) of this section must comply with the rules or statutes of this State and be submitted to the Superior Court in the county in which discovery is to be conducted. (g) Uniformity of application and construction. — In applying and construing this uniform act, consideration must be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it. (h) Application to pending actions. — This section applies to requests for discovery in cases pending on the effective date of this section [July 12, 2010]. (i) Effective date. — This section takes effect upon enactment [July 12, 2010].

Del. Code tit. 10, § 4312-4315 §§ 4312-4315. Evidence of laws of other jurisdictions; judicial notice; judicial notice of common law and statutes of other jurisdictions; Uniform Proof of Statutes Law; federal findings or reports on death, missing in action, or captured as evidence; prohibition of examination of minister of religion [Repealed].

Repealed by 63 Del. Laws, c. 62, § 1, effective June 30, 1981.

Del. Code tit. 10, § 4316 Victim advocate privilege.

(a) As used in this section: (1) “Confidential communication” means any information transmitted in confidence between a victim and a victim advocate in the course of that relationship. (2) “Crisis services” includes emergency and follow-up intervention services, information services, referral services, medical advocacy, legal advocacy, or social services advocacy. (3) “Victim” means: a. The person identified as the victim of a crime in: 1. A police report. 2. A criminal complaint or warrant. 3. An indictment, information, or other charging instrument. b. A person seeking assistance because of any of the following, regardless of whether or not the services are sought within the criminal justice system: 1. Domestic violence. 2. Abuse. 3. Any sexual offense. 4. Abuse by a caregiver. 5. Human trafficking. 6. Stalking. (4) “Victim advocate” means an employee, or a volunteer under the supervision of an employee, of a victim services agency that completed a minimum of 20 hours of training in an advocacy course of instruction, as documented by the victim services agency. (5) “Victim services” includes any of the following: a. Crisis intervention services, including a crisis hotline. b. Emergency assistance, which includes food, shelter, housing assistance, clothing, financial assistance, or legal assistance. c. Orientation to and information about the criminal justice system, including court proceedings. d. Information about legal rights, protections, and the criminal justice process. e. Trauma-informed counseling. f. Advocacy regarding legal protection provided to victims of crime, including legal assistance. g. Assistance with understanding and completing civil court documents. h. Assistance with an application to the Victims’ Compensation Assistance Program. i. Assistance with safety planning. j. Support during any meeting, process, or proceeding necessary as a result of the crime. (6) “Victim services agency” means a public or private organization that provides victim services. “Victims service agency” does not include a law-enforcement agency or the Department of Justice. (b) Unless otherwise required by law, a victim advocate may not reveal a confidential communication made by a victim for the purpose of seeking or receiving victim services, nor may the victim advocate divulge records kept during the course of providing victim services. (c) This privilege may be claimed by any of the following: (1) The victim. (2) The parent, guardian, or custodian of a victim who is unable to meaningfully understand or participate in the proceedings due to the victim’s minority or disability, except when the parent, guardian, or custodian: a. Is the defendant. b. Has a relationship with the victim such that the parent, guardian, or custodian has an interest in the outcome of the proceeding that conflicts with the interest of the victim. (3) The victim advocate, or the person who served as the victim advocate at the time of the confidential communication is presumed to have authority to claim the privilege, but only on behalf of the victim. (d) The privilege continues even if the victim is unreachable. The privilege terminates upon a written waiver or the death of the victim. (e) The victim advocate privilege under this section does not apply if: (1) The victim expresses an intent to engage in conduct likely to result in imminent death or serious physical injury to the victim or another individual, and the victim advocate reasonably believes that revealing the information is necessary to prevent this harm. (2) The victim advocate is required to make a report under § 903 of Title 16. (3) The communication is relevant to a proceeding brought under Chapter 25 of Title 13 or Chapter 9 of Title 16 or the privilege is otherwise inapplicable under § 909 of Title 16. (f) (1) In a criminal proceeding, the victim advocate privilege may yield upon motion of the defendant for in camera review by the court where the defendant’s motion meets the following criteria: a. The defendant has made a plausible showing that confidential communications or records sought cannot otherwise be obtained. b. The defendant sought the consent of the victim for release of confidential communications or records sought before bringing a motion under this section. c. The defendant precisely identified the kind of confidential communications or records sought. d. The defendant articulated a compelling basis for the confidential communications or records sought. e. The defendant made a plausible showing that confidential communications or records sought contain information that is relevant and material to the defendant’s defense. f. The court is satisfied that the defendant’s request is not purely speculative. g. The court has determined that the probative value of confidential communications or records sought outweighs the effect of the disclosure of confidential communications or records on the victim’s safety and the advocate’s safety. (2) Following in camera review of the confidential communications or records sought, the court may disseminate or order disclosure of the confidential communications or records or redacted portions thereof that it finds are relevant. (g) Any victim advocate who, in good faith, discloses confidential communications under subsection (e) of this section is immune from liability that may result from the disclosure. In any proceeding arising out of a disclosure under subsection (e) of this section, the good faith of the victim advocate who made the disclosure is presumed.

Del. Code tit. 10, § 4317 Admissibility of accommodation payments for personal injury; effect on statute of limitations.

No advance payment or partial payment of damages made by any person or his or her insurer as an accommodation to an injured person or on such person’s behalf to others or to the estate or dependents of a deceased person, made under liability insurance as defined in § 906(a)(2) of Title 18, because of an injury or death claim or potential claim against any person or insured thereunder shall be construed as an admission of liability by the person claimed against, or of the insurer’s recognition of such liability, with respect to such injured or deceased person or with respect to any other claim arising from the same accident or event. Any such payments shall, however, constitute a credit and be deductible from any final settlement made or judgment rendered with respect to such injured or deceased person which does not expressly take into account such advance payments. Any person, including any insurer, who makes such an advance or partial payment, shall at the time of the payment notify the recipient in writing of the statute of limitations applicable to such injury or death. Failure to provide such written notice shall operate to toll any applicable statute of limitations or time limitations from the time of such advance or partial payment until such written notice is actually given.

Del. Code tit. 10, § 4318 Compassionate communications.

(a) For purposes of this section: (1) “Health care provider” means any person licensed or certified by the State of Delaware to deliver health care services, including, but not limited to, any physician, coordinated care organization, hospital, health care facility, dentist, nurse, optometrist, podiatrist, physical therapist, psychologist, chiropractor or pharmacist and an officer, employee or agent of such person acting in the course and scope of employment or agency related to health care services. (2) “Unanticipated outcome” means the result of a medical treatment or procedure that differs from an expected medical result. (b) Any and all statements, writings, gestures, or affirmations made by a health care provider or an employee of a health care provider that express apology (other than an expression or admission of liability or fault), sympathy, compassion, condolence, or benevolence relating to the pain, suffering, or death of a person as a result of an unanticipated outcome of medical care, that is made to the person, the person’s family, or a friend of the person or of the person’s family, with the exception of the admission of liability or fault, are inadmissible in a civil action that is brought against a health care provider.

Del. Code tit. 10, § 4319 Confidential communications involving first responders, civilian employees, or their families.

(a) For purposes of this section: (1) “Civilian employee” means an employee of a law-enforcement, fire, or emergency medical services agency who is not a first responder. (2) “Critical incident” means a situation or incident which, during the course of a first responder’s duties, causes or may cause a first responder to experience unusually strong negative emotional or physical stress. “Critical incident” includes any encounter that may result in the death of or serious injury to another person or the imminent potential of such death or serious bodily injury, fatal motor vehicle accidents, child abuse investigations, death investigations, large scale man-made or natural disasters, and the cumulative stress of exposure to situations or incidents during the course of a first responder’s duties. (3) “Critical incident stress management services” or “CISM services” means consultation, risk assessment, education, intervention, and other crisis intervention services provided by a CISM team or CISM team member to a first responder before, during, or after a critical incident. (4) “Critical incident stress management team” or “CISM team” means a team composed of CISM team members who assist and provide support to a first responder who has been involved in a critical incident that may affect, or has affected, the person’s work performance or general well-being. (5) “Critical incident stress management team member” or “CISM team member” means an individual who satisfies all of the following: a. Is specially trained to provide CISM services to assist and provide support to a first responder who has been involved in a critical incident that may affect, or has affected, the person’s work performance or general well-being. b. Meets the requirements of a nationally-accredited critical incident stress management organization or network that has been recognized by the Police Officer Standards and Training Commission. c. Has been approved to function as a CISM team member by the colonel or chief of the police, fire, or emergency medical services agency of which the individual is a member. (6) “First responders” means federal, Delaware state and local law-enforcement officers, fire and emergency medical services personnel, hazardous materials response team members, 911 dispatchers, chaplains, or any individual who is responsible for the protection and preservation of life, property, and evidence, and has been sent or directed to respond to a request for assistance as a result of a critical incident. (7) “Immediate family member” means as “family” is defined in § 901 of Title 10. (8) “Law-enforcement officer” means a police officer as defined in § 9200 of Title 11. (9) “Participant” means any of the following: a. A first responder who obtains or has obtained CISM services or wellness program services. b. A first responder’s immediate family member who obtains or has obtained wellness program services. c. A civilian employee who obtains or has obtained wellness program services. d. A civilian employee’s immediate family member who obtains or has obtained wellness program services. (10) “Trained peer support member” means a first responder designated by a state, county, or municipal law-enforcement, fire, or emergency medical services agency, with approval from the agency’s colonel or chief, and specially trained to provide a participant with wellness program services. (11) “Wellness program” means a voluntary and comprehensive health initiative designed to improve the well-being of participants through the use of trained peer support members. (12) “Wellness program services” means services provided by a wellness program. A wellness program may offer any of the following wellness program services: a. Counseling. b. Spiritual guidance. c. Education about financial resources, health resources, legal assistance, and stress management services. (b) Except as provided in subsection (d) of this section, all proceedings, communications, and records, including any information acquired by a CISM team, CISM team member, or trained peer support member from a participant, are confidential. A CISM team member or trained peer support member may not be compelled to disclose the proceedings, communications, or records, including information, through compulsory legal process or otherwise discoverable or admissible in evidence in any action, including any legal proceeding, trial, or investigation unless the confidentiality is waived by the affected participant. (c) The privileges in subsection (b) of this section only apply if the proceedings, communications, or records, including information, are obtained during the provision of CISM services or wellness program services. (d) Exceptions. — The privileges established under subsection (b) of this section do not apply if any of the following occur: (1) The communication indicates an intent to engage in conduct likely to result in imminent death or serious physical injury to the participant or another individual. (2) The participant expressly waives the privilege or gives consent to disclosure of the privileged communication. (3) The participant is deceased and the surviving spouse or the executor or administrator of the estate of the deceased participant expressly waives the privilege or gives consent to disclosure of the privileged communication. (4) The participant sought or obtained the CISM services or wellness program services to enable or aid anyone to commit or plan to commit what the participant knew, or reasonably should have known, was a “crime”, as defined under § 233 of Title 11, or fraud. (e) Information otherwise available from the original source is not immune from discovery or use in any civil or criminal action merely because the information was disclosed by a participant during CISM services or wellness program services if the information sought is otherwise permissible and discoverable.

Del. Code tit. 10, § 4320 Definitions.

As used in this subchapter: (1) “Adjudicative proceeding” means any judicial or quasi-judicial proceeding in which the rights of parties are determined but does not include any proceeding of a grand jury. (2) “Information” means any oral, written or pictorial material and includes, but is not limited to, documents, electronic impulses, expressions of opinion, films, photographs, sound records, and statistical data. (3) “Person” means individual, corporation, statutory trust, business trust, estate, trust, partnership or association, governmental body, or any other legal entity. (4) “Reporter” means any journalist, scholar, educator, polemicist, or other individual who either: a. At the time he or she obtained the information that is sought was earning his or her principal livelihood by, or in each of the preceding 3 weeks or 4 of the preceding 8 weeks had spent at least 20 hours engaged in the practice of, obtaining or preparing information for dissemination with the aid of facilities for the mass reproduction of words, sounds, or images in a form available to the general public; or b. Obtained the information that is sought while serving in the capacity of an agent, assistant, employee, or supervisor of an individual who qualifies as a reporter under paragraph (4)a. of this section. (5) “Source” means a person from whom a reporter obtained information by means of written or spoken communication or the transfer of physical objects, but does not include a person from whom a reporter obtained information by means of personal observation unaccompanied by any other form of communication and does not include a person from whom another person who is not a reporter obtained information, even if the information was ultimately obtained by a reporter. (6) “Testify” means give testimony, provide tangible evidence, submit to a deposition, or answer interrogatories. (7) “Within the scope of his or her professional activities” means any situation, including a social gathering, in which the reporter obtains information for the purpose of disseminating it to the public, but does not include any situation in which the reporter intentionally conceals from the source the fact that he or she is a reporter and does not include any situation in which the reporter is an eyewitness to or participant in an act involving physical violence or property damage.

Del. Code tit. 10, § 4321 Privilege in nonadjudicative proceedings.

A reporter is privileged in a nonadjudicative proceeding to decline to testify concerning either the source or content of information that he or she obtained within the scope of his or her professional activities.

Del. Code tit. 10, § 4322 Privilege in adjudicative proceedings.

A reporter is privileged in an adjudicative proceeding to decline to testify concerning the source or content of information that he or she obtained within the scope of his or her professional activities if the reporter states under oath that the disclosure of the information would violate an express or implied understanding with the source under which the information was originally obtained or would substantially hinder the reporter in the maintenance of existing source relationships or the development of new source relationships.

Del. Code tit. 10, § 4323 Exceptions to the privilege in adjudicative proceedings.

(a) Unless the disclosure of the content of the information would substantially increase the likelihood that the source of the information will be discovered, the privilege provided by § 4322 of this title shall not prevent a reporter from being required in an adjudicative proceeding to testify concerning the content, but not the source, of information that the reporter obtained within the scope of his or her professional activities if the judge determines that the public interest in having the reporter’s testimony outweighs the public interest in keeping the information confidential. In making this determination, the judge shall take into account the importance of the issue on which the information is relevant, the efforts that have been made by the subpoenaing party to acquire evidence on the issue from alternative sources, the sufficiency of the evidence available from alternative sources, the circumstances under which the reporter obtained the information, and the likely effect that disclosure of the information will have on the future flow of information to the public. (b) The privilege provided by § 4322 of this title shall not prevent a reporter from being required in an adjudicative proceeding to testify concerning either the source or the content of information that the reporter obtained within the scope of his or her professional activities if the party seeking to have the reporter testify proves by a preponderance of the evidence that the sworn statement submitted by the reporter as required by § 4322 of this title is untruthful.

Del. Code tit. 10, § 4324 Determination of privilege claim.

A person who invokes the privilege provided by this subchapter may not be required to testify in any proceeding except by court order. If a person invokes the privilege in any proceeding other than a court proceeding, the body or party seeking to have the person testify may apply to the Superior Court for an order requiring the claimant of the privilege to testify. If the Court determines that the claimant does not qualify for the privilege under the provisions of this subchapter, it shall order the claimant to testify.

Del. Code tit. 10, § 4325 Waiver.

If a reporter waives the privilege provided by this subchapter with respect to certain facts, he or she may be cross-examined on the testimony or other evidence he or she gives concerning those facts but not on other facts with respect to which the reporter claims the privilege. A reporter does not waive or forfeit the privilege by disclosing all or any part of the information protected by the privilege to any other person.

Del. Code tit. 10, § 4330 Chemical test report.

For the purpose of establishing that physical evidence in a criminal or civil proceeding constitutes a particular controlled substance defined under Chapter 47 of Title 16, a report signed by the forensic toxicologist or forensic chemist who performed the test or tests as to its nature is prima facie evidence that the material delivered was properly tested under procedures approved by the Division of Forensic Science, that those procedures are legally reliable, that the material was delivered by the officer or person stated in the report and that the material was or contained the substance therein stated, without the necessity of the forensic toxicologist or forensic chemist personally appearing in court, provided the report identifies the forensic toxicologist or forensic chemist as an individual certified by the Division of Forensic Science, the Delaware State Police or any county or municipal police department employing analysts of controlled substances, as qualified under standards approved by the Division of Forensic Science to analyze those substances, states that the forensic toxicologist or forensic chemist made an analysis of the material under the procedures approved by the Division of Forensic Science and also states that the substance, in the forensic toxicologist’s or forensic chemist’s opinion, is or contains the particular controlled substance specified. Nothing in this section precludes the right of any party to introduce any evidence supporting or contradicting the evidence contained in or the presumption raised by the report.

Del. Code tit. 10, § 4331 Chain of physical custody or control.

In the context of controlled dangerous substances: (1) “Chain of custody” means: a. The seizing officer; b. The packaging officer, if the packaging officer is not also the seizing officer; and c. The forensic toxicologist or forensic chemist or other person who actually touched the substance and not merely the outer sealed package in which the substance was placed by the law-enforcement agency before or during the analysis of the substance. (2) “Chain of custody” does not include a person who handled the substance in any form after analysis of the substance. (3) a. For the purpose of establishing, in a criminal or civil proceeding, the chain of physical custody or control of evidence consisting of or containing a substance tested or analyzed to determine whether it is a controlled substance defined under Chapter 47 of Title 16, a statement signed by each successive person in the chain of custody that the person delivered it to the other person indicated on or about the date stated is prima facie evidence that the person had custody and made the delivery as stated, without the necessity of a personal appearance in court by the person signing the statement. b. The statement shall contain a sufficient description of the material or its container so as to distinguish it as the particular item in question and shall state that the material was delivered in essentially the same condition as received. c. The statement may be placed on the same document as the report provided for in § 4330 of this title. d. Nothing in this section precludes the right of any party to introduce any evidence supporting or contradicting the evidence contained in or the presumption raised by the statement.

Del. Code tit. 10, § 4332 Presence of forensic toxicologist or forensic chemist at criminal proceeding; availability of chemical report to defense counsel.

(a) In general. — (1) In a criminal proceeding, the prosecution shall, upon written demand of a defendant filed in the proceedings at least 5 days prior to the trial, require the presence of the forensic toxicologist or forensic chemist, or any person in the chain of custody as a prosecution witness. (2) The provisions of §§ 4330 and 4331 of this title concerning prima facie evidence do not apply to the testimony of that witness. (3) The provisions of §§ 4330 and 4331 of this title are applicable in a criminal proceeding only when a copy of the report or statement to be introduced is mailed, delivered or made available to counsel for the defendant or to the defendant personally when the defendant is not represented by counsel, at least 10 days prior to the introduction of the report or statement at trial. (b) Witness for defense. — Nothing contained in this subchapter shall prevent the defendant from summoning a witness mentioned in this subchapter as a witness for the defense.

Del. Code tit. 10, § 4335 Economic expert opinion on the amount of future lost wages and/or future medical expenses.

In any case before a Delaware court where there is a dispute over the economic amount a party owes another party for future lost wages and/or future medical expenses, there shall be a rebuttable presumption that the inflation rate for future lost wages and/or future medical expenses is equal to the economic discount rate. No party shall be required to present an economic expert witness opinion to a jury or court for the purpose of having the present value of the economic amount of a party’s claim for either future lost wages and/or future medical expenses introduced into evidence. However, no party is precluded from presenting admissible expert witness opinion to a jury or court for the purposes of having the present value of the economic amount of a party’s claim for either future lost wages or future medical expenses introduced into evidence, or to oppose the present value of the economic amount of a party’s claim for either future lost wages or future medical expenses. A Delaware court shall have the discretion in any case to order sua sponte or for good cause shown that a party shall be required to present economic expert opinion evidence on the present value of the economic amount that a party is owed by another party for future lost wages and/or future medical expenses.
Source: DE Code (Official Site)URL: https://delcode.delaware.gov/title10/c043/sc01/index.htmlFetched: 10/4/2026

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