MINUTES OF MEETING
Joint Procedure Committee
April 30-May 1, 1998
TABLE OF CONTENTS
Service via Commercial Carrier... 3
Rule 5, N.D.R.Civ.P. - Filing... 4
Proposed Rule 3.3, NDROC - Change of Judge for PostJudgment Motion or Proceeding... 5
Initial Appearance and Arraignment by Interactive Video... 6
Rule 4, N.D.R.Civ.P. - Service on a Corporation Outside the State... 8
Rule 8.2, NDROC - Interim Orders in Domestic Relations Cases.. 8
Rule 51, N.D.R.Civ.P. - Predeliberation Discussion by Jurors.. 9
Rule 47.1, N.D.R.App.P. - Certification of Questions of Law... 11
Rule 4, N.D.R.Civ.P. - Demand for Filing Complaint... 11
Commencement of the Time for a Post-Judgment Motion or an Appeal... 12
Rule 4, N.D.R.App.P. - Extension of Time for Appeal... 13
Rule 407, N.D.R.Evid. - Subsequent Remedial Measures... 14
Rule 801, N.D.R.Evid. - Hearsay Definitions... 15
Rule 804, N.D.R.Evid. - Forfeiture by Wrongdoing; Hearsay Exception... 16
CALL TO ORDER
The meeting was called to order at approximately 1:30 p.m., April 30, 1998, by Justice Dale V. Sandstrom, Chair.
Justice Dale V. Sandstrom
Honorable Richard Geiger
Honorable Gail Hagerty
Honorable Ronald L. Hilden
Honorable Maurice R. Hunke
Honorable Lawrence A. Leclerc
Honorable Mikal Simonson
Honorable Kirk Smith
Mr. Lynn M. Boughey
Mr. Michael R. Hoffman
Mr. John C. Kapsner
Professor Larry Kraft
Mr. Ronald H. McLean
Ms. Patricia R. Monson
Ms. Sherry Mills Moore
Mr. James T. Odegard
Ms. Cathy Howe Schmitz
Honorable Wallace Berning
Honorable Donovan Foughty
Honorable Kirk Smith
Mr. Gerhard Raedeke
The Committee's newest member, Judge Geiger, was welcomed to the Committee.
The Committee was informed meetings are scheduled for September 24-25, 1998; January 28-29, 1999; and May 6-7, 1999.
APPROVAL OF MINUTES (PAGES 1-23 OF THE AGENDA MATERIAL)
On page 9, Mr. Boughey requested a correction to the minutes as follows: "A Committee member suggested the potential jury pool should
include not automatically exclude jurors who believe in jury nullification." Judge Leclerc MOVED to approve the minutes from the January 29-30, 1998, meeting with the correction. Mr. Kapsner seconded. The motion CARRIED.
Mr. Kapsner stated, the Board of Governors of the State Bar Association would like to review the materials in advance of Committee's meetings in order to provide comment. Giving people the opportunity to comment before the Joint Procedure Committee meetings would be more beneficial than having the comments when the material goes to the Supreme Court.
Committee members stated a summary of the proposed changes should be posted on the Supreme Court's website before each meeting. The summary should be done in a form similar to the Supreme Court's case annotations. Then if people have an interest, they can look more specifically at the agenda material on the website or obtain a copy of the material. Having a summary would make it easier for people to become aware of what the Committee is considering without having to review the entire agenda.
SERVICE VIA COMMERCIAL CARRIER (PAGES 24-42 OF THE AGENDA MATERIAL)
For reconsideration and discussion purposes, Mr. Odegard MOVED to adopt the proposed amendment to Rule 4 to allow service of process via commercial carrier. Ms. Monson seconded.
Committee members questioned whether all commercial carriers will furnish a return receipt. Others stated, it will be the attorney's responsibility to make sure the commercial carrier will provide a signed receipt. The proposal simply creates another option. An attorney should not be limited to the U.S. Postal Service if the attorney wants to use a commercial carrier and the commercial carrier provides a signed return receipt.
On page 29, line 86, the Committee agreed delivery to a post office address should not be required. Other types of addresses like a street address may be sufficient.
Mr. Kuntz MOVED to amend the Explanatory Note to Rule 4 on page 34 as follows: "A law firm may not
create act as its own commercial carrier service for service of process." Judge Hunke seconded. The motion CARRIED without objection. The Explanatory Note is not intended to prevent a law firm from obtaining admissions of service.
The Committee noted there may be advantages to using a third-party commercial carrier. A commercial carrier service may be faster than mail and a commercial carrier service may provide pick-up service. The motion to adopt Rule 4 CARRIED.
The Committee considered proposed amendments to the Explanatory Note to Rule 5, N.D.R.Civ.P., and Rule 25, N.D.R.App.P. The proposed amendments to the Explanatory Notes clarify a law firm may not act as its own commercial carrier with service complete on deposit. In addition, the notes clarify the phrase, "commercial carrier," does not include electronic delivery services.
By consensus, the Committee agreed to amend the Explanatory Note to Rule 5 as follows: "A law firm may not
create act as or provide its own commercial carrier service with service complete upon deposit." Judge Hunke MOVED to recommend adoption of the proposed Explanatory Note to Rule 5 as amended. Ms. Schmitz seconded. The motion CARRIED.
Ms. Moore MOVED to adopt the proposed Explanatory Note to Rule 25, N.D.R.App.P. Judge Hunke seconded. The motion CARRIED.
RULE 5, N.D.R.Civ.P. - FILING (PAGES 43-48 OF THE AGENDA MATERIAL)
The Committee reviewed Ratajczak v. Ratajczak, 1997 ND 122, 565 N.W.2d 491. Committee members expressed concern about the statement in Ratajczak being overly broad, which provides: "It is an original paper sent to the district court and, therefore, should be part of the record." The Committee noted, all papers submitted to the clerk of court are not filed and do not become part of the record.
The Committee reviewed the provisions governing filing from the North Dakota Clerk of Court Manual. Papers submitted to the clerk of court which are classified as "received case papers" are not filed according to the manual. For instance, correspondence not pertaining to the substance of the case is not filed. The Committee also noted Minnesota state court and the U.S. District Court for North Dakota do not file everything submitted.
Committee members stated clerks should not put letters containing legal argument on the "received case papers" side of the file. Some attorney members argued everything submitted to the clerk of court should be filed and become part of the record that goes to the Supreme Court on appeal.
Judges on the Committee stated, there is a lot of material submitted which would be burdensome to file and have become part of the record. In any event, a party can make a motion to supplement the record.
Committee members stated Ratajczak was a fairly unique situation. Normally, letters pertaining to the substance of the case will be filed as instructed by the North Dakota Clerk of Court Manual. It was also suggested attorneys could do a better job of preparing documents to make sure they are included as a "filed case paper" and as part of the record.
The Committee questioned whether a rule should be drafted dictating what material must be filed by the clerk of court. Others stated, the subject is an administrative matter which is not appropriate for the Committee to address by rule. The North Dakota Clerk of Court Manual already provides adequate guidance.
Judge Hunke MOVED to indefinitely postpone discussion of a proposed rule defining the types of documents required to be filed by the clerk of court. Judge Simonson seconded. The motion CARRIED. The intent of the motion is for the matter to rest unless someone submits a specific proposal. The motion CARRIED.
PROPOSED RULE 3.3, NDROC - CHANGE OF JUDGE FOR POSTJUDGMENT MOTION OR PROCEEDING (PAGES 49-59 OF THE AGENDA MATERIAL)
The Committee considered a request from Judge Graff to adopt a rule superseding Section 27-05-27, N.D.C.C. The statute prohibits a judge from amending an order or judgment of another judge. Judge Graff wants a rule allowing a judge to consolidate the proceedings when a misdemeanant fails to satisfy the conditions of more than one misdemeanor judgment. Judge Graff wants a single judge to be able to amend all the conditions of all the unsatisfied judgments of a misdemeanor defendant regardless whether the judge ordered entry of all the judgments.
Judge members stated there really is a need for the rule. It is more efficient to consolidate the proceedings than to conduct them separately. The proposal is also beneficial for defendants as they will not have to appear before several judges.
For the purposes of discussion, Judge Hunke MOVED to adopt Alternative 1 on page 57. Judge Hilden seconded. Members stated Alternative 2 on page 58 changes the law in postjudgment divorce proceedings by allowing more than one change of a judge.
Mr. Boughey MOVED to substitute Alternative 2 on page 58 for Alternative 1. Judge Hagerty seconded. Mr. Boughey further suggested lines 13-15 could be amended as follows: "A different judge may modify an order governing alimony, child support, child custody, or the division of property as provided by Section 29-15-21, N.D.C.C." The motion to substitute FAILED.
The Committee considered Alternative 1 on page 57. Mr. Kapsner MOVED to amend the proposal by simply having the rule provide as follows: "A single judge may amend the conditions of all unsatisfied judgments of a misdemeanant regardless of whether the judge ordered entry of all the judgments." Mr. Kapsner explained, the rest of the language is not needed to accomplish Judge Graff's intent. Judge Simonson seconded.
Mr. Odegard MOVED to amend the proposal as follows: "A single judge may amend the conditions of all
unsatisfied judgments of a misdemeanant regardless of whether the judge ordered entry of all the judgments." Judge Leclerc seconded. Motion CARRIED.
Mr. Odegard MOVED to amend the proposal as follows: "A
single judge may amend the conditions of all judgments of a
misdemeanant regardless of whether the judge ordered entry of all the judgments." Judge Leclerc seconded. Motion CARRIED.
Judge Leclerc MOVED to amend the proposal as follows: "A judge may amend the conditions of all criminal judgments
of a misdemeanant regardless of whether the judge ordered entry of all the judgments." Motion CARRIED.
Judge Leclerc MOVED to amend the rule as follows: "A judge may amend
the conditions a condition of all a criminal judgments judgment regardless of whether the judge ordered entry of all the judgments judgment."
Committee members questioned whether there is a trigger point which allows a different judge to act. It was stated, the presiding judge decides who get what case. Others stated, other districts might be different. Concern was expressed, the proposal allows a defendant to seek out the judge most likely to impose the most lenient conditions. It was suggested the rule should make clear a judge outside the district may not modify the judgment.
The Committee questioned whether the rule should also apply to felonies. Members stated, with felonies there is more responsibility upon the sentencing judge to ensure compliance with the terms of the judgment. The proposal should be limited to and used for misdemeanors, because they occur in a high volume.
Concern was expressed lines 8-13 should remain in the rule, because they clarify the original judge is to act first and a different judge is the exception. It was stated, a deferred imposition of sentence is not a criminal judgment. The rule should refer to "a criminal judgment or an order." It was also suggested the rule should provide: "A single judge may amend or enforce a condition . . . ."
Judge Hagerty MOVED to send the rule back to staff for further work. Mr. Kuntz seconded. The motion CARRIED.
The Committee questioned whether the statute should be superseded and the exceptions in the statute incorporated into the proposed rule. Others stated a note should be inserted in the Explanatory Note cross-referencing the statute. Committee members also suggested the proposed rule should be adopted as a rule of criminal procedure. The proposal should be narrowly focused on the issue raised by Judge Graff and limited to criminal judgments.
INITIAL APPEARANCE AND ARRAIGNMENT BY INTERACTIVE VIDEO (PAGES 60-122 OF THE AGENDA MATERIAL)
The Committee considered a request from Judge Davies to allow initial appearances and arraignments by interactive video. Judge Davies suggests transporting prisoners to the courtroom is humiliating for them and creates a risk of escape, accident, and injury. He contends constitutional rights would not be jeopardized
and the criminal justice system would not be compromised by allowing interactive video.
The Committee noted, numerous state courts allow the use of interactive video for initial appearances and arraignments. For the purposes of discussion, Ms. Schmitz MOVED to adopt the proposed amendment to Rule 5 on page 96 which allows initial appearances by interactive video. Judge Hilden seconded.
Judges from rural areas stated they are doing initial appearances by telephone. Initial appearances need to be done quickly, and in rural areas a judge might not otherwise be available. Concern was expressed, the proposed amendment would preclude initial appearances by audio means.
Other Committee members stated, Rule 5 does not authorize audio initial appearances. The rule needs to be amended or judges are violating a defendant's rights under the current rule by conducting initial appearances by audio means. Committee members also questioned whether an audio appearance without visual transmission violates a defendant's constitutional rights.
Others disagreed and said Rule 5 does not currently prohibit audio initial appearances. In addition, it does not matter whether audio or audio-visual transmission is used. Otherwise, if one says the constitution permits audio-visual initial appearances and not audio initial appearances, one would be saying blind judges are not capable of doing initial appearances.
Committee members suggested audio or audio-visual transmission should be allowed if the defendant consents. Others questioned how meaningful the consent would be if the defendant does not yet have a lawyer.
By consensus, the Committee agreed to substitute the word "appears" for the phrase "is brought" on line 18 and 19 on page 96. Ms. Schmitz MOVED to amend the Explanatory Note with the addition of the following sentence on line 99: "This rule is not intended to preclude audio appearances with the consent of the defendant." Judge Hilden seconded. Motion CARRIED.
Committee members expressed concern allowing audio-visual initial appearances would remove local judicial presence from the rural counties and be another step towards regional trial centers. They thought the defendant should have to appear before a judge in a courtroom.
The Committee voted on the motion to adopt the proposal. The motion FAILED.
RULE 4, N.D.R.Civ.P. - SERVICE ON A CORPORATION OUTSIDE THE STATE (PAGES 123-135 OF THE AGENDA MATERIAL)
The Committee reviewed Judge Rustad's request to amend Rule 4 to clarify upon whom service is to be made when service is by mail on a corporation outside the state. The Committee noted, currently, under Rule 4(d)(2), to serve a corporation by mail within the state, the mail must be addressed to a specific category of persons such as an officer, director, agent, etc. In contrast, under Rule 4(d)(3), it appears service may be made by mail on a corporation outside the state without limitation as to whom the mail must be addressed.
Committee members stated this issue does arise and the rule should be clarified. Ms. Schmitz MOVED to recommend adoption of the proposal to the Supreme Court. Mr. Odegard seconded. The motion CARRIED by a two-thirds vote. The Committee noted Section 10-19.1-129, N.D.C.C., also contains provisions regarding service of process on a corporation.
RULE 8.2, NDROC - INTERIM ORDERS IN DOMESTIC RELATIONS CASES (PAGES 136-142 OF THE AGENDA MATERIAL)
The Committee considered a request from Judge Olson for review of Rule 8.2. In his request, Judge Olson expressed concern about Rule 8.2's requirement for a hearing within 30 days after a motion for an interim order is filed. The problem is a court cannot comply with the time limit when a motion for a change of venue is filed before the hearing as held.
Committee members said the problem is not going to happen very often. It will behoove the parties to file in the correct venue. For discussion purposes, Ms. Schmitz MOVED to adopt the proposed amendment to Rule 8.2 on page 138. Judge Simonson seconded.
On page 142, Judge Hunke MOVED the following amendment to the Explanatory Note: "A motion for a change of venue must be promptly ruled upon in order to accomplish the Committee's intent for interim orders to be expeditiously
issued heard." Ms. Moore seconded. The reason for the change is an interim order may not be issued. The intent of the Committee is for the motion to be heard within 30 days. The motion unanimously CARRIED.
Committee discussion revealed changes of venue are not necessarily done by motion. Sometimes they are done by demand. Some said, with a demand no hearing is required. Others said, a demand for a change of venue is a motion which must be made under Rule 3.2.
Ms. Schmitz MOVED to amend lines 84-89 as follows: "If
a motion for a change of venue is filed changed before the hearing for an interim order is held, the hearing for an interim order must be held no later than 30 days after the order granting or denying the motion for a change of venue is signed changed." Judge Leclerc seconded. The motion unanimously CARRIED.
Professor Kraft MOVED to change the language on page 139, line 51, as follows: "or
a motion an application for change of venue is filed pending." The Committee agreed to the suggested change without objection. The word "application" was used to avoid questions as to whether a change of venue must be by motion and whether a demand is a motion.
The Committee voted on proposed Rule 8.2 as amended. The motion CARRIED by a two-thirds vote.
The Committee recessed at approximately 5:00 p.m.
May 1, 1998 - Friday
The Committee reconvened at approximately 9:00 a.m.
RULE 51, N.D.R.Civ.P. - PREDELIBERATION DISCUSSION BY JURORS (PAGES 143-164 OF THE AGENDA MATERIAL)
The Committee considered whether jurors should be allowed to discuss the evidence before the case is submitted to them for deliberation.
Mr. McLean gave reasons for allowing predeliberation discussion by jurors. The purpose of a trial is to provide the fairest means possible for resolving disputes by arriving at the truth. Arriving at the truth means understanding the evidence. The educational model should be followed to facilitate learning. For instance, an educator would not conduct a class without allowing students to discuss the material outside of class. Students learn from interaction.
The system needs to reflect reality. Jurors talk. The rule would provide structure for the discussions already taking place. Currently, it is the bad citizen type of juror who is doing the talking. Allowing jurors to talk would prevent the bad citizen juror from having undue influence.
Humans are not capable of detached information processing; that is separating the acquisition of material from its evaluation. When absorbing information people form tentative opinions. These tentative opinions need to be discussed or they
become too narrowly focused and conclusive. Discussion would lead to greater comprehension of the material from different view points. Comprehension and recall would also be increased by allowing discussion of the material when it is fresh rather than days or weeks later.
Mr. McLean MOVED to adopt Rule 51 as proposed. Professor Kraft seconded.
It was explained the rule would only apply in civil cases, and the judge would have discretion whether to allow predeliberation discussion. The proposal also requires the entire jury to be present before discussion can take place, so discussion will be limited.
Others stated allowing jurors to express their views may cause them to view the evidence from a prospective that would re-enforce their preliminary views. Once a person orally states an opinion, it is harder to change the opinion.
Allowing jury discussion is not a solution to the problem of the bad juror who is not following the court's instructions. Currently, if a juror is not following the instructions of the court, the juror will be ostracized and the influence of that juror lessened. Most jurors will try to do the right thing.
Committee members stated allowing predeliberation discussion is unfair to the defense because the first discussions will be about the plaintiff's evidence and opinions will become entrenched. A trial is not like a classroom. In a classroom, the plaintiff's material is not presented first. The presentation is not lopsided.
Others said the opposite is true. Because the jury only hears from one side first, the evidence should be discussed right away to prevent narrowly focused conclusions from being drawn and conclusive opinions from being prematurely reached.
Committee members questioned whether enough data supports a change. A conclusive study has not yet come out of the Arizona experience; although, preliminary research indicates jurors like being able to discuss the evidence before deliberations. Judge Dann, from Arizona, indicates allowing preliminary jury discussion is working well.
Committee members stated because there is a lack of information as to what actually happens in the jury room, arguments can be made both ways as to whether predeliberation discussion would be helpful or harmful.
It was explained the difference between jury discussion and jury deliberation is deliberation concerns the ultimate questions of the case. It was also stated, jurors will need more instruction at the beginning of a case if preliminary discussions are going to be allowed.
Committee members questioned whether the foreperson should be selected at the beginning rather than at the end of the case if predeliberation discussion is allowed. The function of the foreperson is to make sure the jurors follow the instructions of the court. Others stated, jurors need time to develop a feel as to who would be right for foreperson. The foreperson needs to be selected at the end of the case.
The Committee voted on the proposal. The proposal CARRIED by a vote of 10 to 7. Because it did not carry by a two-thirds vote, the proposal will be considered again at the Committee's September meeting.
RULE 47.1, N.D.R.App.P. - CERTIFICATION OF QUESTIONS OF LAW (PAGES 165-168 OF THE AGENDA MATERIAL)
The Committee considered the proposed amendment to Rule 47.1. The amendment simply deletes the obsolete reference to county court and makes style changes. Ms. Schmitz MOVED to adopt the rule as proposed. The motion unanimously CARRIED.
RULE 4, N.D.R.Civ.P. - DEMAND FOR FILING COMPLAINT (PAGES 169-173 OF THE AGENDA MATERIAL)
Staff explained Rule 4(c) requires personal service under Rule 4(d) of a demand to file the complaint. The amendment clarifies whether service of the demand is to be on the plaintiff or the plaintiff's attorney. Normally, when a document is served under Rule 5, N.D.R.Civ.P., and a party is represented by an attorney, service must be made upon the attorney.
Judge Hunke MOVED to adopt Rule 4 as proposed. Ms. Schmitz seconded.
Judge Hunke MOVED to change the word "upon" to "on" on lines 8, 10, and 11. Ms. Schmitz seconded. Committee members noted the word "upon" is used throughout the rule. Others stated, the Committee should change the portion of the rule it is considering. The motion to amend CARRIED. The motion to adopt Rule 4 CARRIED.
COMMENCEMENT OF THE TIME FOR A POST-JUDGMENT MOTION OR AN APPEAL (PAGES 174-228 OF THE AGENDA MATERIAL)
The Committee reviewed the procedures governing the commencement of the time for filing a post-judgment motion or an appeal. In a civil case, under the rules, the time for filing a post-judgment motion or an appeal starts to run after notice of entry of judgment. In contrast, under case law, the time starts to run when the moving or appealing party has actual knowledge of entry of judgment.
The Committee considered incorporating the case law exception for actual knowledge into the explanatory notes for the rules governing post-judgment motions and appeals. The proposed amendments would alert people actual knowledge of entry of judgment will start the time running for filing a post-judgment or an appeal. As an alternative, the Committee considered whether to amend Rule 77, N.D.R.Civ.P., to eliminate the case law exception for actual knowledge.
Committee members expressed concern. A person should be able to rely on the rules without researching case law to determine when such a critical date as the time for appeal starts to run. However, if the case law exception for actual knowledge is eliminated, the time for appeal may never expire if notice of entry of judgment is not served.
Others said, they were more concerned about the uncertainty created by the case law exception as to when the time starts to run for making a post-judgment motion or an appeal. Committee members stated, the case law exception is an invitation to litigate whether there is actual knowledge. A precise definitive time is needed to provide certainty as to when the time for making a post-judgment motion or an appeal starts to run.
Committee members stated they would like the clerks to serve notice of entry of judgment. Often the attorneys will not even know judgment has been entered. The Committee concluded, however, there is not enough uniformity or control over the clerks of court to require the clerks to serve notice of entry of judgment.
The Committee voted on whether to eliminate or incorporate into the rules the case law exception for actual knowledge. The Committee decided to consider amendments eliminating the case law exception.
On page 220, Ms. Schmitz MOVED to adopt the proposed amendment to Rule 77. Mr. Kapsner seconded. On lines 35-39, the Committee agreed without objection to the following amendment: "The time for filing a post-judgment motion or an appeal does not begin
to run until notice of entry is served, regardless whether
the adverse party has there is actual knowledge judgment as been entered." The motion to adopt the proposed amendment to Rule 77 unanimously CARRIED.
Committee members questioned why Rule 77(d) only refers to judgments and not orders. Mr. Kapsner MOVED to add the following language on line 39: "the judgment or order has been entered." Judge Leclerc seconded. The Committee noted, Rule 54 defines a judgment as including "any order from which an appeal lies." Mr. Kapsner withdrew his motion. By unanimous agreement, the Committee instructed staff to add a sentence to the Explanatory Note to Rule 77 indicating Rule 54 defines judgment as including a final order.
On page 227, the Committee considered the proposed Explanatory Note to Rule 4, N.D.R.App.P. The Explanatory Note cross-references the amendment to Rule 77, N.D.R.Civ.P. Mr. Odegard MOVED to adopt the proposed amendment to the Explanatory Note. Judge Simonson seconded. By unanimous agreement, the Committee agreed to amend the proposal as follows: "The case law exception, providing actual knowledge by the appealing party of the entry of judgment or order appealed from starts the time running for filing an appeal, was eliminated by the ____________ amendment to Rule 77, N.D.R.Civ.P." The motion CARRIED.
RULE 4, N.D.R.App.P. - EXTENSION OF TIME FOR APPEAL (PAGES 303-309 OF THE AGENDA MATERIAL)
The Committee reviewed Rule 4's provisions for extending the time for appeal for excusable neglect. Currently, under Rule 4(a), the 30 day extension for excusable neglect is added to the 60 day period under Rule 4(a). For instance, in a post-conviction relief proceeding, the 30 day extension for excusable neglect is added to the 60 day period for appeal under Rule 4(a) even though the statutory time for appeal in a post-conviction relief proceeding is ten days. McMorrow v. State, 516 N.W.2d 282 (N.D. 1994).
The proposed amendment to Rule 4(a) provides for an extension of 30 days from the particular statute or rule providing the time for appeal. Judge Leclerc MOVED to adopt the proposed amendment. Mr. Kapsner seconded. The motion unanimously CARRIED.
RULE 407, N.D.R.Evid. - SUBSEQUENT REMEDIAL MEASURES (PAGES 229-232 OF THE AGENDA MATERIAL)
The Committee reviewed the December 1, 1997, amendment to Rule 801, Fed.R.Evid. The amendment clarifies the rule only applies to remedial measures after the occurrence which produced the damages giving rise to the action. Thus, evidence of remedial measures before the event causing the harm or injury do not fall within the exclusionary scope of Rule 407 even if they occurred after the manufacture or design of the product. The federal amendment also extends the exclusionary rule to products liability actions.
For discussion purposes, Ms. Monson MOVED to amend Rule 407, N.D.R.Evid., to follow the 1997 federal amendment. Ms. Schmitz seconded.
Committee members suggested the proposed rule should correspond to North Dakota's comparative fault statutes, by using the word "fault" on line 7 instead of "negligence." North Dakota's comparative fault statutes cover breach of warranty, strict liability, negligence, etc. See Chapter 32-03.2, N.D.C.C.
Mr. Kapsner MOVED to replace with word "negligence" with the word "fault" on line 7. Judge Hunke seconded. The amendment CARRIED. By agreement, the Committee decided to strike the word "negligence" on line 20 of the Explanatory Note and substitute the phrase "fault or culpable conduct." The Committee stated it is necessary to keep the phrase "culpable conduct" because Rule 407 also applies to criminal cases.
A Committee member stated: If a car transmission is designed in 1995 and subsequently the car transmission is redesigned in 1997, and an accident occurs in 1998 involving the 1995 car, the 1997 design should not be admissible to prove the 1995 design defective.
Committee members questioned whether a product redesigned after an injury would be admissible in a second case involving an injury based on the previous design. Would evidence of a redesign be admissible just because the redesign happened after the first injury but before the second injury? If so, the amendment would discourage manufacturers from redesigning products. The redesign would only be inadmissible in regard to the first accident.
Committee members stated, manufacturers should not be discouraged from remedying defective products. Others stated in products liability actions, manufacturers have adequate incentive to undertake remedial measures because of the potential for numerous lawsuits regardless whether the remedial measures would be admissible as evidence.
Mr. Kapsner MOVED to amend the proposal as follows:
"Whenever, after an injury or harm allegedly caused by an event, measures are taken that, if taken previously, would have made the injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove fault
,or culpable conduct , a defect in a product, a defect in a product's design, or a need for a warning or instructionin connection with the event."
Judge Hunke seconded.
Committee members argued, "in connection with the event" should be deleted as in the federal rule. The word "event" is ambiguous. The word "event" could refer to the time of the injury or the time of the manufacture or design of the product. If the word "event" is eliminated on line 5 and the phrase "injury or harm" is substituted on line 5, the word "event" needs to be eliminated on line 10. The rule needs to be logically consistent.
Judge Leclerc MOVED to postpone further discussion of Rule 407 until the next meeting. Professor Kraft seconded. The motion unanimously CARRIED.
RULE 801, N.D.R.Evid. - HEARSAY DEFINITIONS (PAGES 233-248 OF THE AGENDA MATERIAL)
The Committee reviewed the December 1, 1997, amendment to Rule 801, Fed.R.Evid. The federal amendment codifies the holding of Bourjaily v. United States, 483 U.S. 171 (1987), by providing a court shall consider the contents of a co-conspirator's statement in making its preliminary foundational fact determinations when deciding admissibility of a co-conspirator's statement. The amendment also clarifies, the trial court cannot rely solely upon a co-conspirator's statement when making its preliminary foundational fact determinations.
The Committee noted, under State v. Lind, 322 N.W.2d 826 (N.D. 1982), independent evidence is required when making the preliminary foundational factual determinations to prevent bootstrapping the admissibility of hearsay evidence. However, the federal case law relied upon in Lind was overruled by the Bourjaily court.
For discussion purposes, Mr. Odegard MOVED to amend Rule 801, N.D.R.Evid., as proposed on page 244 to follow the federal amendment. Ms. Schmitz seconded.
One Committee member was opposed to recommending any change. He thought the matter should be litigated on appeal. The Committee recognized the North Dakota Supreme Court is free to determine its rule of evidence differently than the U.S. Supreme Court. Most Committee members seemed to think the use of hearsay should not be expanded.
By consensus, the Committee agreed to reinsert the word "that" in the Explanatory Note on line 78. The motion to amend Rule 801 FAILED.
RULE 804, N.D.R.Evid. - FORFEITURE BY WRONGDOING; HEARSAY EXCEPTION (PAGES 249-264 OF THE AGENDA MATERIAL)
The Committee reviewed the December 1, 1997 amendments to Rules 803 and 804, Fed.R.Evid., and new Rule 807, Fed.R.Evid. The federal amendments eliminate the catch-all hearsay exception in Rules 803 and 804. Instead, the catch-all hearsay exception is transferred to a new Rule 807. The amendments are intended to facilitate additions to Rules 803 and 804.
The Committee reviewed the new hearsay exception, Rule 804(b)(6), Fed.R.Evid., entitled "Forfeiture by wrongdoing." The exception provides a party forfeitures the right to object on hearsay grounds when the parties deliberate wrongdoing procures the unavailability of the declarant as a witness. Judge Hunke MOVED to recommend adoption of a new hearsay exception as adopted in the federal rule. Judge Simonson seconded.
Committee members argued just because the party has procured the unavailability of a witness does not mean the statements are reliable. A statement does not become reliable just because the witness is now gone. Others stated a party should not profit by its own wrongdoing.
The motion CARRIED by a vote of nine to six. Because the motion did not carry by a two-thirds vote, the Committee will consider the proposal again at its next meeting.
The meeting adjourned at approximately 12:00 noon.