TO: Joint Procedure Committee
FROM: Mike Hagburg
DATE: January 13, 2012
RE: Form and Style Revisions to the Rules of Evidence
On December 1, 2011, form and style revisions to the Federal Rules of Evidence took effect. Under Section 8.1(a) of the Rule on Rules, the Committee is tasked studying and reviewing all rules of pleading, practice and procedure, including the North Dakota Rules of Evidence.
Section 8.6 requires the Committee to review each rule at least once every 10 years. Fortunately, since the late 1990s, the federal courts have been engaged in making form and style revisions to their rules of procedure. The Committee has been able to fulfill its responsibilities by reviewing North Dakota's rules in the wake of the federal changes, and has completed form and style revisions to the Rules of Appellate, Criminal and Civil Procedure.
In reviewing the federal changes to the evidence rules, it seems that the revisors have worked with a light touch. They appear to have been dedicated to making form and style changes only. They explain their approach in their report to the Chief Justice, a copy of which is attached. As the note that will be attached to each of the proposed amendments this Committee will review explains:
The language and organization of the rule were changed to make the rule more easily understood and to make style and terminology consistent throughout the rules. There is no intent to change any result in any ruling on evidence admissibility.
While the text of the proposed rules has not been substantially changed, staff has edited the explanatory notes to the proposed amendments with a heavy hand, proposing substantial deletions. When the evidence rules were adopted, they were something new and the committee felt it necessary to explain why a given rule was needed and underlying principles and hornbook law the rule was based on. Consequently, the explanatory notes are lengthy.
After more than 30 years of practice with the rules, most of the explanatory material originally included seems unnecessary, especially when a substantial body of caselaw explaining the rules has been developed. The Committee should examine explanatory note deletions, however, in case staff has cut too far and there is material that should be retained.
Proposed revisions to the 100, 200 and 300 series of the evidence rules are attached, as are the revised federal rules that the proposed revisions are drawn from. Except as explained below, the proposed rule text revisions are intended to be for form and style only.
Rule 103: Subdivision (b) was previously contained in the federal rule but was not part of the North Dakota rule. The language was added to the federal rule as part of the 2000 amendment that the Committee has not previously reviewed. The lengthy federal explanatory note on the amendment is attached. The Committee may wish to discuss whether this language should be added to the rule.
Rule 201: There is a new subdivision (c) that combines the former (c) and (d) subdivisions. Subdivision (f) on timing has become the new subdivision (d). New subdivision (f) follows the federal rule and applies different standards to jury instructions on judicial notice in civil and criminal cases. These different standards became part of the federal rule because Congress chose to amend the Supreme Court's approved version of the rule. The House Committee on the Judiciary decided that "mandatory instruction to a jury in a criminal case to accept as conclusive any fact judicially noticed is inappropriate because contrary to the spirit of the Sixth Amendment right to a jury trial." The Committee may wish to discuss whether this language should be added to the rule.
Rule 301: The text is substantially different from the federal rule so the form and style amendments proposed were made by staff. The Committee may wish to discuss whether to substitute the simpler federal language for the unique North Dakota language.
Rule 303: Is an empty rule whose explanatory note gives directions on how to find the rules for proof and presumptions in criminal cases. A copy of N.D.C.C. 12.1-01-03 is attached for the Committee to consider.