TO: Joint Procedure Committee
FROM: Mike Hagburg
DATE: September 11, 2012
RE: Rule 801, N.D.R.Ev., Definitions
Form and style amendments to Rule 801 consistent with the 2011 federal amendments are proposed. The amendments are not intended to change any result in any ruling on evidence admissibility.
The North Dakota rule has always differed from the federal rule in that it allows prior inconsistent statements to be used as substantive evidence in civil cases and, if the prior statement was made under oath, in criminal cases. This formulation has been retained and it differs from the federal rule because the federal rule requires that the prior statement be made under oath in all cases.
Additional language was added to the federal rule in 1997. This language is at the very end of the proposed rule and is highlighted. The federal rule was amended in response to a conspiracy case. The notes to the federal rule explain that the amendment is designed to provide "that the contents of the declarant's statement do not alone suffice to establish a conspiracy in which the declarant and the defendant participated. The court must consider in addition the circumstances surrounding the statement, such as the identity of the speaker, the context in which the statement was made, or evidence corroborating the contents of the statement in making its determination as to each preliminary question." The committee may wish to discuss whether the 1997 federal language should be added to Rule 801.
The proposed amendments are attached.