TO: Joint Procedure Committee
FROM: Mike Hagburg
DATE: April 3, 2013
RE: Rule 803, N.D.R.Ev., Hearsay Exceptions; Availability of Declarant Immaterial; Rule 902, N.D.R.Ev., Self Authentication
The committee discussed proposed amendments to Rules 803 and 902 at the September meeting. The committee had a lengthy discussion about what kind of certification is required to be consistent with proposed new provisions in Rule 803(6) and Rule 902(11) and (12). The committee briefly returned to these rules at the January meeting, but decided to table them because the legislature was considering a measure that would have allowed unsworn declarations to be used like affidavits, in a manner similar to that allowed under Fed.R.Civ.P. 803 and 902.
The bill containing the unsworn declarations measure, H.B. 1406, was voted down in the North Dakota House on Feb. 1.
Weinstein's Federal Evidence § 902.13 discusses the certification language in Fed.R.Ev. 902(11) and (12). A copy is attached. Weinstein suggests that the intent of the amendments was to allow foundation for a document under the business records exception to Rule 803 to be established by a certificate rather than live testimony. What form the certificate was to take was not detailed in the rule the essential element, however, was that it be made under penalty of perjury so it would be an adequate substitute for live testimony. A notice requirement was also made part of the rule so the opposing party could challenge the certificate if necessary.
Much of the discussion at the September meeting centered on language in the proposal, based on the federal rule, that would allow any sort of certificate in compliance with a state statute or rule to be used. The committee located a certificate statute, N.D.C.C. § 31-04-10 (Form and contents of certificate for certifying copies to be used as evidence), and discussed whether documents certified under the statute would satisfy the Rule 902 certificate requirement. A copy of N.D.C.C. ch. 31-04 is attached. Some members argued that allowing certification under the statute would not be consistent with the intent of the rule because the statute did not require that all the elements of the business records exception be certified and it did not require the certificate to be made under penalty of perjury.
The proposed language of Rule 902 (11) and (12) specifically requires all the elements of the business records exception to be satisfied under the certification. Further, the notes to the federal rules indicate that some sort of declaration made under penalty of perjury, in a form similar to the declaration set out in 28 U.S.C. § 1746, is required for the certificate. A copy of this statute is attached.
Staff has prepared revised amendments to Rule 902(11) and (12) that would require the certificate to be "in the form of an affidavit or an unsworn declaration made under penalty of perjury." The revised proposals are attached.