RULE 43. EVIDENCE
(a) Form and Admissibility. In
allevery trial s, the testimony of witnesses shallmust be taken orally or by non-oral means in open court, unless otherwise provided by statute or these rules. All evidence shallmust be admitted which is admissible under the statutes of this State, the North Dakota Rules of Evidence, or other Rulesrules adopted by the North Dakota Supreme Court. The court may, upon the agreement of the parties, or for good cause shown in compelling and unexpected circumstances, and upon appropriate safeguards, permit presentation of testimony in open court by contemporaneous transmission from a different location. Notice must be given to the other parties as soon as reasonably possible for testimony by contemporaneous transmission or non-oral means.
(b) Scope of Examination and Cross-Examination. A party may interrogate any unwilling or hostile witness by leading questions. A party may call an adverse party or an officer, director, superintendent or managing agent of a public or private corporation or of a partnership or association which is an adverse party, or a witness identified with an adverse party, and interrogate
himthe witness by leading questions and contradict and impeach himthe witness in all respects as if hethe witness had been called by the adverse party, and the witness thus called may be contradicted and impeached by or on behalf of the adverse party also, and may be cross-examined by the adverse party only upon the subject matter of histhe witness's examination in chief.
Affirmation in Lieu of Oath. Whenever under these rules an oath is required to be taken, a solemn affirmation shall be accepted in lieu thereof as provided by the North Dakota Rules of Evidence.
(e)Evidence on Motions. When a motion is based on facts not appearing of record the court may hear the matter on affidavits presented by the respective parties, but the court may direct thatthe matter be heard wholly or partly on oraltestimony or depositions.
Rule 43 was amended, effective 1976; January 1, 1980; March 1, 1999.
Rule 43 is derived from Rule 43, FRCivP.
Rule 43(a) was amended in 1976 to reflect the adoption and promulgation of the North Dakota Rules of Evidence. Those rules generally control the admissibility of evidence in all civil trials, unless otherwise provided by statute or rule. Matters of competency and privileges of witnesses, although not specifically referred to in the rule, are also governed by the North Dakota Rules of Evidence unless otherwise provided by statute or other rules adopted by the North Dakota Supreme Court.
In subdivision (a), the provision for taking testimony in open court was retained, but those provisions dealing with admissibility of evidence and competency of witnesses were deleted.
Subdivision (a) was amended, effective March 1, 1999, to follow the 1996 federal amendment. See 1996 Advisory Committee Note, Rule 43, Fed.R.Civ.P. The requirement for testimony to be taken orally is deleted. The rule now allows testimony of a witness to be given in open court by non-oral means, if the witness is not able to communicate orally. The amendment also provides for presentation of testimony in open court by contemporaneous transmission from a different location. However, the amendment is not intended to allow contemporaneous transmission based upon mere convenience for a witness as the requirement for "good cause shown in compelling and unexpected circumstances" is not met. The parties may agree to such evidence, but trial court approval is necessary. Ordinarily, deposition testimony should be used over contemporaneous transmission. In addition, due process for an involuntary commitment hearing requires the respondent have an opportunity to confront and cross-examine witnesses. In Interest of J.S., 530 N.W.2d 331, 335 (N.D. 1995).
Although abrogated in the federal rule after adoption of the Rules of Evidence, subdivision (b) on examination and cross-examination of unwilling, hostile, and adverse witnesses has been retained, with the addition of the phrase, "a witness identified with an adverse party," effective January 1, 1980. This phrase is borrowed from Rule 611 of the Rules of Evidence which deals generally with the mode and order of interrogation and presentation of witnesses. The added phrase is designed to enlarge the category of adverse witnesses callable. Retention of subdivision (b) is designed to assure the retention of the rights to call and interrogate an adverse witness by leading questions and of the adverse party to cross-examine that witness upon the subject matter of his examination in chief, which Rule 611 does not clearly do as a matter of right.
Subdivision (c) was abrogated, effective January 1, 1980, to comport with the same action in the federal rules. It concerned making an offer of proof and making a record of excluded evidence, both matters now covered in Rule 103, North Dakota Rules of Evidence.
The federal rule contains a subdivision (f) governing the appointment of interpreters. This is not needed in these rules, as it is adequately covered in Section 31-01-11, NDCC.
SOURCES: Procedure Committee Minutes of January 29-30, 1998, pages 11-13; September 25-26, 1997, pages 10-11; November 29-30, 1979, page 16; April 26-27, 1979, pages 17-18; September 23-24, 1976, page 79; June 3-4, 1976, pages 16-18; Rule 43, FRCivP.
SUPERSEDED: Sections 31-0122, 31-0202, 31-0206, NDRC 1943.
CROSS REFERENCE: Rules 101 (Scope), 103 (Rules on Evidence), 104 (Preliminary Questions), 603 (Oath or Affirmation), 607 (Who May Impeach), and 611 (Mode and Order of Interrogation and Presentation), NDREv.