TO: Joint Procedure Committee
FROM: Mike Hagburg
DATE: September 11, 2012
RE: Rule 804, N.D.R.Ev., Hearsay Exceptions; Declarant Unavailable
Form and style amendments to Rule 804 consistent with the 2011 federal amendments are proposed. The amendments are not intended to change any result in any ruling on evidence admissibility.
One difference between the federal rule and the proposed amendments: under the federal rule dying declarations are excepted from hearsay only "[i]n a prosecution for homicide or in a civil case." The North Dakota rule allows dying declarations in all cases. Congress amended the original federal rule to limit the use of dying declarations in a manner that was consistent with federal case law.
Another difference between the federal and state rules is in the statement against interest exception. The federal rule allows a codefendant statement against interest to be used against a criminal defendant in some cases. The state rule does not allow this and the existing language explaining this bar is retained in the proposal: "A statement or confession offered against the accused in a criminal case, made by a codefendant or other person implicating both the declarant and the accused, is not within this exception."
The proposed amendments are attached.