MINUTES OF MEETING
Joint Procedure Committee
April 26-27, 2012
TABLE OF CONTENTS
Rule 58, N.D.R.Civ.P., Entry and Notice of Entry of Judgment; Rule 77, N.D.R.Civ.P.,
District Courts and Clerks
3
Rule 41, N.D.Sup.Ct.Admin.R., Access to
Court Records
8
Rule 9, N.D.R.Crim.P., Warrant or
Summons Upon Indictment or Information 9
Rule 45, N.D.R.Civ.P.,
Subpoena 10
Form and Style Amendments to the North
Dakota Rules of Evidence 11
Rule 301, N.D.R.Ev., Presumptions in a Civil Case
Generally 12
Rule 302, N.D.R.Ev., Effect of State Law on Presumptions in a Civil
Case 13
Rule 303, N.D.R.Ev., Presumptions in
Criminal Cases 13
Rule 401, N.D.R.Ev., Test for Relevant Evidence 13
Rule 402, N.D.R.Ev., General Admissibility of Relevant
Evidence 13
Rule 403, N.D.R.Ev., Excluding Relevant Evidence for Prejudice, Confusion,
Waste of
Time, or Other Reasons
14
Rule 404, N.D.R.Ev., Character Evidence; Crimes or Other
Acts 15
Rule 405, N.D.R.Ev., Method of Proving Character 15
Rule 406, N.D.R.Ev., Habit; Routine Practice 15
Rule 407, N.D.R.Ev., Subsequent Remedial Measures 16
Rule 408, N.D.R.Ev., Compromise Offers and Negotiations 16
Rule 409, N.D.R.Ev., Offers to Pay Medical and Similar
Expenses 17
Rule 410, N.D.R.Ev., Pleas, Plea Discussions, and Related
Statements 17
Rule 58, N.D.R.Civ.P., Entry and Notice of Entry of Judgment; Rule 77, N.D.R.Civ.P.,
District Courts and Clerks
19
Rule 411, N.D.R.Ev., Liability Insurance 20
Rule 412, N.D.R.Ev., Sex Offense Cases: Victim's Sexual Behavior or
Predisposition
20
Rule 601, N.D.R.Ev., Competency to Testify in General 22
Rule 602, N.D.R.Ev., Need for Personal Knowledge 22
Rule 603, N.D.R.Ev., Oath or Affirmation to Testify
Truthfully 22
Rule 604, N.D.R.Ev., Interpreter 23
Rule 605, N.D.R.Ev., Judge's Competency as a Witness 23
Rule 606, N.D.R.Ev., Juror's Competency as a Witness 24
Rule 607, N.D.R.Ev., Who May Impeach a Witness 24
Rule 608, N.D.R.Ev., A Witness's Character for Truthfulness or
Untruthfulness
24
Rule 609, N.D.R.Ev., Impeachment by Evidence of a Criminal
Conviction 25
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Rule 610, N.D.R.Ev.,
Religious Beliefs or
Opinions 26
Rule 611, N.D.R.Ev., Examining Witnesses and Presenting
Evidence 26
Rule 612, N.D.R.Ev., Writing or Object Used to Refresh a Witness's
Memory 26
Rule 613, N.D.R.Ev., Witness's Prior Statement 27
Rule 614, N.D.R.Ev., Court's Calling or Examining a
Witness 27
Rule 615, N.D.R.Ev., Excluding Witnesses 27
Rule 701, N.D.R.Ev., Opinion Testimony by Lay Witnesses 29
Rule 702, N.D.R.Ev., Testimony by
Experts 30
Rule 703, N.D.R.Ev., Bases of an Expert's Opinion
Testimony 31
Rule 704, N.D.R.Ev., Opinion on an Ultimate Issue 32
Rule 705, N.D.R.Ev., Disclosing the Facts
or Data Underlying an Expert's Opinion 32
Rule 706, N.D.R.Ev., Court-Appointed Expert Witnesses 33
Rule 707, N.D.R.Ev., Analytical Report Admission;
Confrontation
33
CALL TO ORDER
The meeting was called to order at 1:00 p.m., on April 26, 2012, by the Chair, Justice Mary Muehlen Maring.
ATTENDANCE
Present:
Justice Mary Muehlen Maring,
Chair
Honorable Laurie
Fontaine
Honorable William A.
Herauf
Honorable Debbie Kleven
Honorable Steven L.
Marquart
Honorable Steven
McCullough
Honorable William
McLees
Honorable Thomas E.
Merrick
Honorable David E. Reich
Mr. Bradley Beehler
Mr. Daniel Dunn
Mr. Robert Hoy
Prof. Margaret Moore
Jackson
Mr. Lonnie Olson
Mr. Bruce D. Quick
Mr. Kent Reierson
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Absent:
Honorable John
Greenwood
Mr. Larry L. Boschee
Mr. Richard H. McGee
Ms. Joanne Hager Ottmar
Staff:
Mike Hagburg
Kim Hoge
PRELIMINARY MATTERS
The Chair discussed the schedule for the meeting and welcomed new members, Mr. Beehler and Prof. Moore Jackson. The chair introduced Ms. Bev Demers and Ms. Cindy Schmitz, who were at the meeting to represent the clerks of court.
Mr. Hoy MOVED to approve the minutes. Judge Herauf seconded. A member pointed out several typographical errors, which were corrected with the unanimous consent of the Committee. The motion to approve the minutes CARRIED unanimously.
Staff explained that Rule 58 and 77 were back before the Committee after being discussed at the September 2011 and January 2012 meetings. Staff provided alternative versions of the proposed rule amendments that would retain the requirement that attorneys serve the notice of entry of judgment.
Judge McCullough provided a handout to members explaining what the new Odyssey interface for attorneys is going to look like and how it will function. Judge McCullough said the new interface can be set to show all an attorney's active cases and attorneys will also be able to receive case alerts on new documents docketed in a case. Judge McCullough said the new interface should be online by November 1 and its features should address attorneys' concerns regarding getting notice of entry in cases.
The Chair drew the Committee's attention to the problems that had been created in some districts by the clerks mailing out formal notices of entry. The Chair said that some
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Judge McCullough MOVED to adopt the alternative version of the proposed amendments to Rule 58. Judge Kleven seconded.
A member said that the proposal addresses the issue that brought Rule 58 before the Committee in a commonsense way. The member said the proposal allowed the duplicate judgment problem to be solved efficiently.
Ms. Demers said in her office, the duplicate judgment is attached to the notice of entry of judgment so that there is one electronically filed document. She said under the proposal, clerks will need to return any duplicate judgments that are submitted. Staff said that was the intent of the proposal, based on the preference of the Odyssey user group that a duplicate judgment not be filed.
The Chair said that the previous discussion on Rule 58 had shown that attorneys were concerned that if the judgment served was not filed with the notice of entry then questions could be raised about whether the judgment that was served was the actual judgment in the case. The proposal addresses this by ensuring that the judgment being noticed is clearly identified by date and docket number.
Staff said that clerks are being allowed to file attached judgments with the notice of entry as a single electronic document. Staff said that this was an exception to Odyssey policy, which generally requires separate electronic entries for each separate document filed. Staff said that the Odyssey user group concluded that having the served judgment filed with the notice of entry was a better solution than filing the served judgment as a separate entry, which could cause confusion because then two items would be listed as judgments in the Odyssey file with two different docket dates.
A member said that, in Odyssey, exhibits to motions do need to be filed separately because they are difficult to find otherwise. The member said that the same rationale does not apply to simple motions with proposed judgments attached because it is not difficult to find the different parts of the document if they are filed together in Odyssey, and it is easier to both prepare and handle such a document if it is a single item.
The Chair asked how the certificate of service mentioned in the proposal would be
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Judge Reich MOVED to amend the proposal at lines 21-22 on pages 45-46 to require the judgment docket number and date to be included in the notice of entry. Mr. Beehler seconded.
A member asked whether the reference to the certificate of service should be retained, given that a certificate of service is required by other rules. Members replied that the certificate of service requirement was not always fulfilled by parties and attorneys.
A member asked what would happen if an attorney attempted to file a copy of the judgment in violation of the rule. A member replied that the judgment would be returned to the attorney and not filed. A member said the clerk might just throw away a paper copy judgment, but if it was e-filed the whole filing would be rejected. A member said that this process would educate the attorney that filing a copy of the judgment with the notice of entry was no longer allowed.
Ms. Demers informed the Committee that Odyssey currently has a built in attorney notification system. She said that if the system worked correctly, the clerk would only need to check a box and the attorney would be notified every time something was filed in Odyssey. She said the system does not work consistently and she is working with the help desk to find out why it doesn't work.
Several judge members of the Committee indicated that, when they worked in cases outside their districts, they received Odyssey generated alerts of new items entered in these cases. The members said these notices were very useful. Some attorneys said they had also received case alert notices, so the system must work in some cases. A member suggested that the failure of the notification system to work in all cases could be a training issue.
A member said that the structure of the proposal seemed flawed. The member said that (b)(1) talked about the contents of a notice of entry that should be served. The member said that the revised (b)(2) seemed to be talking about a different notice of entry. The member said that the subdivision needed restructuring so that it would be clear, perhaps by defining what should be in the notice of entry first and then talking about service and filing.
A member said that the rule should make clear from the beginning that the notice of entry needs to contain the docket number and date of the judgment. A member said that it would be good to rewrite the subdivision to define the contents of the notice of entry first and
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Judge Herauf MOVED to table for staff to restructure the notice of entry provision. Judge McLees seconded. Motion CARRIED.
Staff explained that Rule 77 had been tabled at the January meeting and that an alternative to the tabled version of Rule 77 had been prepared as a companion to the Rule 58 alternative. Staff said that neither version of Rule 77 needed to be considered by the Committee unless it desired to impose a notice of entry requirement on the court.
Mr. Hoy MOVED to adopt the proposed amendments to Rule 77. Mr. Dunn seconded.
A member said that the proposal was not feasible because it would change longstanding practice. The member said that the court had never been required to send notice of entry under North Dakota's rules. The member said in a default judgment situation, the proposal would require the court to send notice to every party affected. The member said that the court would need to do extensive research to do this. The member said that if a notice requirement was imposed on the court, there should be a companion rule that prohibits the clerk from accepting any document unless the filing party provides an address for each defendant.
A member said that the problem is orders are being entered every day, especially in Cass County, that attorneys are not made aware of. The member said what attorneys want is to be made aware of the orders that are entered, whether by email or whatever way is most convenient. The member said sometimes competing are orders before the court and the parties do not know what has been signed or when. The member said that attorneys have to search online to see whether orders have been entered, and sometimes they discover that they were entered days ago and the deadline to act on the order is already running.
A member said that the upcoming changes to Odyssey would correct the problem of attorneys not receiving notice of orders and other documents entered in a case. A member said attorneys can now get reports in Cass County of all orders entered in a given category of cases. A member said that the Committee needs to remember that some pro se parties and attorneys who have made appearances but are not involved day-to-day in a case may not have access to Odyssey and will not be getting notice through the system.
The Chair said that apparently automatic notices could be sent through Odyssey right now to attorneys but the technology does not always work. The Chair said that even if Odyssey worked and notice was sent to attorneys, pro se litigants would not receive them.
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A member said that providing an email address would not solve the problem because if a party is not on Odyssey they will not get an automatic notice. The clerk would need to manually send them a notice by looking up their email and sending.
Ms. Demers said that clerks in many districts notify parties when an order or judgment is entered. Ms. Demers said that the clerks object to the proposed rule requirement placing the burden of sending out formal notices of entry of judgment on the clerks.
A member said that it would be fine to continue to require attorneys to send out the formal notice of entry of judgment required by Rule 58. The member said that Cass County at least has stopped sending attorneys any notice of orders and judgments entered so attorneys do not know whether they should be acting in a given case. The member said that any party or attorney who has appeared in a case should get some notification when an order or judgment is entered in a case.
A member said that the clerks have never been required to send out notice of entry, even though many courts have done this as a courtesy. The member said that adding such a requirement as proposed in the amendments to Rule 77 would be a major change in North Dakota practice.
A member said that it has been the commonsense practice almost everywhere in the state for either the judge or the clerks to send out some sort of notification when an order is issued and, regardless of what happens with rule amendments, this will continue. A member said that in places where this was not the practice, like Cass County, attorneys would call the courthouse to find out whether a pending order had been entered.
A member said that by the time a rule requiring notices of entry to be sent by the court could be in place, the new notice system under Odyssey will be running and attorneys will be getting notice if they are not now. A member said, in addition, that the proposal's requirement that the court send out formal notice of entry of judgment was burdensome and this should continue to be an attorney responsibility.
Ms. Demers pointed out that if the current notification system under Odyssey could be fixed, attorneys would be notified of any orders or documents entered in a matter.
The motion to adopt the amendments to Rule 77 FAILED 2-13.
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RULE 41, N.D.Sup.Ct.Admin.R., ACCESS TO COURT RECORDS (PAGES 65-87 OF THE AGENDA MATERIAL)
Staff explained that the Committee had reviewed the Supreme Court's final amendments to Rule 41 at the January 2012 meeting and requested staff to draft proposed forms to be used by people seeking to limit Internet access to certain criminal records. Staff presented a set of draft forms to the Committee.
Mr. Quick MOVED to adopt the proposed Rule 41 forms. Judge Herauf seconded.
A member said that a notice to the state's attorney who handled the case, as recommended by Pierce County State's Attorney Galen Mack, should be required for motions to restrict public access. A member wondered how likely it was that a prosecutor would respond to a motion to restrict. A member said it would depend on the facts of the case--a dismissed minor in consumption charge might not merit a response while a charge against someone with a criminal history might require some attention. The member said part of open records and sunshine law is allowing the public to see charges brought by prosecutors. The member said in domestic cases especially, an alleged perpetrator will have relationships with other people in the future who deserve to have the opportunity to look at charging history.
A member said that an attorney who served a motion to restrict public access would send notice to the prosecutor as a matter of course, but pro se litigants do not have the knowledge of the system or even awareness of the need to give notice. A member said that pro se litigants would typically go directly to the judge. Committee members said that a form affidavit of service should be part of the form package so that a party seeking to serve a motion to restrict would understand that proof of service is required.
A member said that an affidavit with the facts or evidence should be required because just filing a brief that asserts certain facts is inadequate. A member agreed that a party seeking to restrict access should be required to submit facts supporting their motion. A member said the court should not be required to sift through prior proceedings to determine whether the motion should be granted. A member said that an affidavit should be required.
A member said that the party submitting the motion should also be required to supply an email address if they have one.
A member said that an order should be made part of the package as a separate
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Mr. Quick MOVED to table so that staff can draft additional documents as suggested by the Committee. Judge Herauf seconded. Motion CARRIED.
Staff explained that Judge Kleven made a motion at the January meeting to delete the requirement in Rule 9 (b)(1) that the clerk sign the warrant, but the motion was tabled for additional research. Staff presented research showing the origin and intent of the clerk signature requirement. Staff also presented a proposed amendment to delete the option to endorse the bail amount on a warrant.
Judge Kleven MOVED to adopt the proposed amendments to Rule 9. Judge McCullough seconded.
A member said that when the complaint is the initial charging document, the information is not prepared until later and the magistrate signs the warrant of arrest. The member explained that clerks do not sign warrants. A member said that in counties where the information is the initial charging document, the magistrate still is the one who signs the arrest warrant, clerks do not sign them. No member could think of a county where clerks sign warrants.
Mr. Quick MOVED to amend at line 14 on page 90, substituting "magistrate" for "clerk." Judge Marquart seconded.
A member said that clerks can be magistrates, but that a clerk appointed as a magistrate would be required to go through special training. The member said that magistrate training might need to be modified based on the proposed change.
A member said that the language of the rule already references Rule 4(b)(1), which talks about how a warrant must be signed by the magistrate. The member said that it might make more sense to simply delete the reference to signing in Rule 9(b)(1) and allow parties to refer to Rule 4(b)(1) for that information.
Judge McLees MOVED to amend the motion to delete the language "be signed by the clerk" from lines 13-14 on page 90. Mr. Quick seconded.
Motion to amend CARRIED.
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Mr. Quick MOVED to further amend the motion to retain the existing language at lines 15-16 on page 90. Judge Herauf seconded. Motion to amend CARRIED.
Motion as amended CARRIED.
By unanimous consent, staff was instructed to modify the explanatory note to conform with the amendments made by the Committee.
The main motion CARRIED. The rule proposal will be sent to the Supreme Court as part of the Annual Rules Package.
RULE 45, N.D.R.CiV.P., SUBPOENA (PAGES 108-123 OF THE AGENDA MATERIAL)
Staff explained that the Committee approved proposed changes to Rule 26 related to the discovery of electronically stored evidence at the January meeting. Staff presented proposed amendments to Rule 45 on assessing costs for nonparty electronic evidence discovery.
Judge Marquart MOVED to adopt the proposed amendments to Rule 45. Judge Herauf seconded.
The Chair asked whether any members had any issues with electronic discovery. A member said that getting electronic discovery information is incredibly expensive. Experts need to be hired and paid outrageous fees. The member said that the proposed rule amendment is appropriate for situations when parties attempt to extract electronic discovery information from nonparties who may have to bear expenses up front.
A member said that the proposed new language seems to give a blank check to nonparties to claim expenses. The member said a reasonableness test should be applied to the claimed costs that might be taxed to a party. The member said the court should have the ability to determine that claimed costs are unreasonable in a given case.
Mr. Dunn MOVED to amend at line 139 on page 115 to insert "reasonable" between
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A member said that the proposal requires a party seeking information from a nonparty to pay the costs. The member asked what would happen if the nonparty was not an "innocent" nonparty but was actively evading cooperation perhaps in collusion with another party in the case. The member said the party seeking discovery should not have to pay in such a case, and the court should be allowed to levy the costs on whoever was responsible for the costs.
Judge Fontaine MOVED to amend the motion to add a new sentence at line 140 on page 115: "Under appropriate circumstances, the costs may be allocated among the parties." Judge Kleven seconded.
A member said the first part of the sentence beginning at 137 on page 115, which states that the court may specify conditions for discovery, gives the court discretion to do whatever it needs to do to tax or distribute costs. A member said that because the word "including" was used in the proposed amendment, the court's discretion is still unlimited. The proposed amendment simply gives possible options for the court to follow. A member replied that the additional language was unnecessary because the court has discretion.
Motion to amend the motion CARRIED.
A member said adding the language as proposed would cause confusion because attorneys are not going to read the first words giving the court discretion but instead are going to claim that assessment of costs as allowed by the amended language is required. The member said that the proposed language should not be adopted.
The main motion to approve the rule as amended FAILED 5-10.
Staff explained that the Committee had begun its review of the form and style revisions to the Federal Rules of Evidence at the January 2012 meeting. Staff explained that the proposed changes to the evidence rules were designed to make the rules more easily understood and to make style and terminology consistent throughout the rules without changing any result in any ruling on evidence admissibility.
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Staff presented proposed form and style amendments to Rule 301, which were drafted consistently with the amendments to the federal rules.
Judge Herauf MOVED to adopt the proposed amendments to Rule 301. Judge Marquart seconded.
The Chair pointed out that the explanatory note discusses the differences between North Dakota and federal case law on presumptions. The Chair said presumptions often are an issue in employment law cases. The Chair said the Supreme Court had long been challenged by trying to reconcile tests for employment discrimination under state and federal case law. The Chair said some federal burden shifting does not fit with North Dakota's interpretation of presumptions because the state views presumptions as evidentiary. The Chair said the note as currently written explains the two different ways of interpreting presumptions.
Mr. Quick MOVED to retain lines 33-75 on pages 131-133. Mr. Hoy seconded.
A member said the state rule is substantially different from the federal rule and the explanatory note language is valuable because it explains the reasons for the differences.
Motion CARRIED.
The Chair said that some of the case law referenced in the explanatory note is very old and has been superseded by more recent cases. The consensus of the Committee was that staff should update the explanatory note with more recent cases and determine whether the pattern jury instruction on presumptions has been updated.
A member said the updated language at lines 4-5 on page 130 did not seem to have the same meaning as the old language. Staff said the changed language was taken from the updated federal rule, which previously had the same language used in the North Dakota rule.
The main motion CARRIED. The rule proposal will be made part of the Evidence Rules Package, which will be sent to the Supreme Court when complete.
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Staff presented proposed amendments to Rule 302 based on the amendments to the federal rule.
Judge Herauf MOVED to adopt the proposed amendments to Rule 302. Judge Marquart seconded.
The main motion CARRIED. The rule proposal will be made part of the Evidence Rules Package, which will be sent to the Supreme Court when complete.
RULE 303, N.D.R.Ev., PRESUMPTIONS IN CRIMINAL CASES (PAGES 142-144 OF THE AGENDA MATERIAL)
Staff explained that Rule 303 had no content except for an explanatory note pointing the statutes governing presumptions in criminal cases.
RULE 401, N.D.R.Ev., TEST FOR RELEVANT EVIDENCE (PAGES 145-149 OF THE AGENDA MATERIAL)
Staff presented proposed amendments to Rule 401 based on the amendments to the federal rule.
Judge McCullough MOVED to adopt the proposed amendments to Rule 401. Judge Fontaine seconded.
The main motion CARRIED. The rule proposal will be made part of the Evidence Rules Package, which will be sent to the Supreme Court when complete.
Staff presented proposed amendments to Rule 402 based on the amendments to the federal rule.
Judge Kleven MOVED to adopt the proposed amendments to Rule 402. Judge Marquart seconded.
The Chair asked about the dashes used in the rule draft to set out segments. Staff
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The main motion CARRIED. The rule proposal will be made part of the Evidence Rules Package, which will be sent to the Supreme Court when complete.
Staff presented proposed amendments to Rule 403 based on the amendments to the federal rule.
Judge Fontaine MOVED to adopt the proposed amendments to Rule 403. Mr. Dunn seconded.
Mr. Dunn MOVED to make an enumerated list using lower-case letters after the colon in line 9 on page 156. Judge McCullough seconded.
A member said using letters and a list format would allow people citing the rule to be more specific about the point they are referencing.
Motion CARRIED.
The Chair asked about the use of the word "adaptation" at line 14 on page 156 in the explanatory. Staff said that the words "based on" instead of adaptation would be more consistent with the language in other rules. The consensus of the Committee was to replace "adaptation" with "based on" on line 14.
The main motion CARRIED. The rule proposal will be made part of the Evidence Rules Package, which will be sent to the Supreme Court when complete.
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Staff presented proposed amendments to Rule 404 based on the amendments to the federal rule.
Mr. Hoy MOVED to adopt the proposed amendments to Rule 404. Judge McLees seconded.
The main motion CARRIED. The rule proposal will be made part of the Evidence Rules Package, which will be sent to the Supreme Court when complete.
RULE 405, N.D.R.Ev., METHOD OF PROVING CHARACTER (PAGES 169-174 OF THE AGENDA MATERIAL)
Staff presented proposed amendments to Rule 405 based on the amendments to the federal rule.
Judge Herauf MOVED to adopt the proposed amendments to Rule 405. Mr. Beehler seconded.
The main motion CARRIED. The rule proposal will be made part of the Evidence Rules Package, which will be sent to the Supreme Court when complete.
RULE 406, N.D.R.Ev., HABIT; ROUTINE PRACTICE (PAGES 175-180 OF THE AGENDA MATERIAL)
Staff presented proposed amendments to Rule 406 based on the amendments to the federal rule.
Judge Marquart MOVED to adopt the proposed amendments to Rule 406. Judge Kleven seconded.
Mr. Quick MOVED to retain lines 19-37 on pages 176-177. Mr. Olson seconded.
A member said that the discussion in the explanatory note provides some useful history and shows how the rule was a departure from previous case law. The member said the explanatory note language seemed substantive.
Motion CARRIED.
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RULE 407, N.D.R.Ev., SUBSEQUENT REMEDIAL MEASURES (PAGES 181-185 OF THE AGENDA MATERIAL)
Staff presented proposed amendments to Rule 407 based on the amendments to the federal rule.
Mr. Quick MOVED to adopt the proposed amendments to Rule 407. Judge Herauf seconded.
Mr. Dunn MOVED to amend at line page 182, line 12, to replace "negligence" with "fault." Judge McLees SECONDED. Motion CARRIED.
The Committee discussed the use of dashes in the rules under the federal evidence rule revisions. The consensus of the Committee was that it would prefer commas instead of dashes.
The main motion CARRIED. The rule proposal will be made part of the Evidence Rules Package, which will be sent to the Supreme Court when complete.
RULE 408, N.D.R.Ev., COMPROMISE OFFERS AND NEGOTIATIONS (PAGES 186-195 OF THE AGENDA MATERIAL)
Staff presented proposed amendments to Rule 408 based on the amendments to the federal rule.
Mr. Quick MOVED to adopt the proposed amendments to Rule 408. Mr. Beehler seconded.
Mr. Quick MOVED to strike language at lines 18-20 on page 88, excluding language based on the federal rule regarding negotiations related to claims. Judge McCullough seconded.
A member said that the federal rule language allowing evidence from negotiations of claims was directed specifically to evidence from IRS settlement negotiations.
Motion CARRIED.
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A member asked why the term "liability" was part of the previous language but not used in the proposed amendments. A member suggested that the concept of liability was implied in the term "validity" that was used in the proposed amendments. A member said that the federal advisory notes indicated that the "liability" was part of "validity."
Mr. Dunn MOVED to add additional language to the explanatory note based on the federal advisory note's discussion of the removal of "liability" from the rule. Judge Herauf seconded. Motion CARRIED.
A member said the language of paragraph (a)(1) at lines 14-16 on page 188 was confusing with its use of multiple clauses set off by dashes and commas. A member suggested the clauses could be turned into a list with letters. A member said that this would put the rule into a different form than the federal rule and make cross-referencing between the two rules difficult. A member suggested that omitting the "ors" and the hyphens would make the sentence read better.
Judge McCullough MOVED to amend lines 14-16 on page 188 to read: "furnishing, promising, offering, accepting, promising to accept, or offering to accept a valuable consideration in compromising or attempting to compromise the claim; and . . . ." Mr. Dunn seconded. Motion CARRIED.
The main motion CARRIED. The rule proposal will be made part of the Evidence Rules Package, which will be sent to the Supreme Court when complete.
Staff presented proposed amendments to Rule 409 based on the amendments to the federal rule.
Judge Marquart MOVED to adopt the proposed amendments to Rule 409. Mr. Reierson seconded.
The main motion CARRIED. The rule proposal will be made part of the Evidence Rules Package, which will be sent to the Supreme Court when complete.
Staff presented proposed amendments to Rule 410 based on the amendments to the
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Mr. Quick MOVED to adopt the proposed amendments to Rule 410. Mr. Beehler seconded.
A member pointed out that the proposed federal language used the words "has been introduced" at line 25 on page 202, which is a different standard than "has been admitted." The member said that the federal standard as a whole might allow the admission of additional information from a plea conference that would not necessarily be considered impeaching. The member said it seemed similar to the standard for admission of a portion of a writing, where if one party wants part of a writing admitted, the other party can ask for the rest to show context.
A member said that North Dakota's old language is more clear than the proposed rewritten language. The member said that the meaning of the proposed language is not clear even on multiple readings. A member replied that the federal language seemed to give the defendant and the state more leeway to bring in material from plea proceedings.
Judge Fontaine MOVED to retain existing language at lines 18-22 on pages 201-202 and to strike proposed new language at lines 23-28 on page 202. Judge Kleven seconded. Motion CARRIED.
A member drew the Committee's attention to language at line 22 on page 202 requiring that a statement be made in the presence of counsel as a prerequisite to its use. The member said that this requirement did not take into account self-represented litigants and would prohibit the use of statements by self-represented litigants in perjury prosecutions.
Mr. Olson MOVED to amend lines 21-22 on pages 201-202 to end the sentence after "on the record." Judge McLees seconded.
A member said removing the counsel requirement would be a substantial change to the rule.
Motion CARRIED.
The main motion CARRIED. The rule proposal will be made part of the Evidence Rules Package, which will be sent to the Supreme Court when complete.
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The meeting recessed at 4:30 p.m., on April 26, 2012.
April 27, 2012 - Friday
The meeting was called to order at approximately 9:00 a.m., by Justice Mary Muehlen Maring, Chair.
Staff explained that proposed new language for Rule 58 had been drafted based on the Committee's suggestions at the Thursday session.
Judge McCullough MOVED to amend Rule 58 to include amended language as follows:
(1) In General. A notice of entry of judgment must identify the docket number and the date of the judgment noticed.
(2) Service. Within 14 days
after entry of judgment in an action in which an appearance has
been made, notice of entry of judgment in compliance with Rule 58(b)(1),
and a copy of the
judgment or a general description of the nature and amount of relief and damages
granted,
must be served by the prevailing party on the opposing party and filed.
A copy of the
judgment must be served with the notice of entry.
(3) Filing. The prevailing party must file the notice of entry of judgment. The copy of the judgment may not be filed.
Judge Marquart seconded.
A member said the language about the date of the judgment "noticed" was unclear. The member said use of "noticed" was awkward and said that there should be more specifics on what "date" needed to be included. A member said it should specify the date the judgment was "signed." A member said this is technically referred to as the date the judgment was "issued." A member wondered whether "entered" would be better because this would be the date it became a part of the file. A member said referring to the date "signed" would be more clear.
By unanimous consent, the proposed language of paragraph (1) was amended to read: "A notice of entry of judgment must identify the docket number and the date the judgment was signed."
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The main motion CARRIED. The rule proposal will be sent to the Supreme Court as part of the Annual Rules Package.
RULE 411, N.D.R.Ev., LIABILITY INSURANCE (PAGES 207-210 OF THE AGENDA MATERIAL)
Staff presented proposed amendments to Rule 411 based on the amendments to the federal rule.
Judge Herauf MOVED to adopt the proposed amendments to Rule 411. Judge McLees seconded.
The main motion CARRIED. The rule proposal will be made part of the Evidence Rules Package, which will be sent to the Supreme Court when complete.
Staff presented proposed amendments to Rule 412 based on the amendments to the federal rule.
Judge Kleven MOVED to adopt the proposed amendments to Rule 412. Prof. Moore Jackson seconded.
Mr. Reierson MOVED to add language to line 59 on page 215 to add a definition of the term "victim" as used in the federal rule. Judge Herauf seconded. Motion CARRIED.
Staff said in the Committee's previous discussion when the rule was originally addressed in 1996, there was a controversy about whether language making the rule applicable to both civil and criminal cases should be included. Staff said the Committee was not certain how the rule would be applied in a civil case and chose to make the rule applicable only in criminal cases. Staff said the rule proposal before the Committee included language based on the federal rule making the rule applicable in both civil and criminal cases.
A member asked what the practical effect would be of applying the rule in a civil sexual harassment case. A member replied that the proponent of evidence about the victim's alleged sexual behavior would have to provide justification about why admission of the
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A member said that without the proposed amendments making the rule applicable to civil cases, the plaintiff would be limited to objecting under N.D.R.Ev. 403. The member said the standard for admission under the proposed amendments would still be a Rule 403 standard, but requiring pretrial notice of an intent to admit sexual behavior evidence against a plaintiff would be a change from current procedure.
A member said that it seemed like including the proposed civil case language would be beneficial to plaintiffs. A member said that the standard for allowing sexual conduct evidence in civil cases seemed to be looser than in criminal cases. A member said the criminal standard is more stringent, but that the pretrial notice and motion procedure for civil cases is an advantage over the current procedure. A member said that simply having the same standard apply in criminal and civil cases would make more sense.
A member said that issues in criminal and civil cases are different. A member said one reason the civil and criminal standards are different is because consent is not a defense in the civil situation; instead the standard is "welcome-ness." The member said sometimes there are facts about welcoming the conduct that a court might feel should be admitted. The member said that identity can be an issue in a criminal case but not in civil cases. The member said the law is developing as to what evidence should be admitted in a sexual harassment case and case law has not set firm standards. The member said the standards are much clearer in a criminal case.
A member said that federal laws forbid sex discrimination in employment, and claims under these laws can be made in state court, but it becomes very confusing when the evidence standards are different even if the intent is similar. A member said that the proposed changes, from a practitioner's standpoint, would give both sides a clear understanding of what the admission standards and procedures would be for this evidence. A member said the comments to the federal rule explain why a different standard was chosen for criminal and civil cases.
The main motion CARRIED. The rule proposal will be made part of the Evidence
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The Chair instructed staff to prepare an explanatory note for the rule.
RULE 601, N.D.R.Ev., COMPETENCY TO TESTIFY IN GENERAL (PAGES 228-232 OF THE AGENDA MATERIAL)
Staff presented proposed amendments to Rule 601 based on the amendments to the federal rule.
Judge Marquart MOVED to adopt the proposed amendments to Rule 601. Judge Herauf seconded.
The main motion CARRIED. The rule proposal will be made part of the Evidence Rules Package, which will be sent to the Supreme Court when complete.
RULE 602, N.D.R.Ev., NEED FOR PERSONAL KNOWLEDGE (PAGES 233-236 OF THE AGENDA MATERIAL)
Staff presented proposed amendments to Rule 602 based on the amendments to the federal rule.
Judge Herauf MOVED to adopt the proposed amendments to Rule 602. Mr. Beehler seconded.
The main motion CARRIED. The rule proposal will be made part of the Evidence Rules Package, which will be sent to the Supreme Court when complete.
Staff presented proposed amendments to Rule 603 based on the amendments to the federal rule.
Judge McCullough MOVED to adopt the proposed amendments to Rule 603. Judge McLees seconded.
The main motion CARRIED. The rule proposal will be made part of the Evidence Rules Package, which will be sent to the Supreme Court when complete.
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Staff presented proposed amendments to Rule 604 based on the amendments to the federal rule.
Judge Herauf MOVED to adopt the proposed amendments to Rule 604. Mr. Olson seconded.
A member asked about the contents of N.D.C.C. § 31-01-11 and whether the rule is superseded by N.D.Sup.Ct.Admin.R. 50 on interpreters. Staff said that there seemed to be overlap between the content of the statute and the administrative rule. A member said that there was also a statute for certification of interpreters for the deaf that should be referenced in the explanatory note. Staff was instructed to perform additional research on the interpreter statutes and their relationship to the court's interpreter rules.
The main motion CARRIED. The rule proposal will be made part of the Evidence Rules Package, which will be sent to the Supreme Court when complete.
RULE 605, N.D.R.Ev., JUDGE'S COMPETENCY AS A WITNESS (PAGES 244-247 OF THE AGENDA MATERIAL)
Staff presented proposed amendments to Rule 605 based on the amendments to the federal rule.
Judge McLees MOVED to adopt the proposed amendments to Rule 605. Prof. Moore Jackson seconded.
A member said that the term "presiding judge" has a particular meaning in North Dakota and its use in the proposed amended language might cause confusion.
Judge McCullough MOVED to retain the first sentence at line 3 on page 245 and delete the proposed new sentence at line 5 on page 245. Judge Herauf seconded. Motion CARRIED.
The main motion CARRIED. The rule proposal will be made part of the Evidence Rules Package, which will be sent to the Supreme Court when complete.
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Staff presented proposed amendments to Rule 606 based on the amendments to the federal rule.
Judge Herauf MOVED to adopt the proposed amendments to Rule 606. Mr. Beehler seconded.
A member suggested that the Minnesota approach may have some advantages in terms of clarity. The member said that some attorneys seem unaware of what is allowed in seeking testimony from jurors and that continuing legal education on this topic could be useful.
The main motion CARRIED. The rule proposal will be made part of the Evidence Rules Package, which will be sent to the Supreme Court when complete.
RULE 607, N.D.R.Ev., WHO MAY IMPEACH A WITNESS (PAGES 257-261 OF THE AGENDA MATERIAL)
Staff presented proposed amendments to Rule 607 based on the amendments to the federal rule.
Mr. Olson MOVED to adopt the proposed amendments to Rule 607. Judge Herauf seconded.
The main motion CARRIED. The rule proposal will be made part of the Evidence Rules Package, which will be sent to the Supreme Court when complete.
Staff presented proposed amendments to Rule 608 based on the amendments to the federal rule. Staff pointed out that the federal revisors had considered two versions of language on self-incrimination and adopted the sentence: "By testifying on another matter, a witness does not waive any privilege against self-incrimination for testimony that relates only to the witness's character for truthfulness." Staff said this language was included in the rule proposal at line 33-35 on page 264.
Judge Reich MOVED to adopt the proposed amendments to Rule 608. Judge McCullough seconded.
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Judge Merrick MOVED to delete the proposed new language at line 33-35 on page 264 and substitute "A witness does not waive the privilege against self-incrimination by testifying about a matter that relates only to a character for truthfulness." Judge McLees seconded. Motion CARRIED.
The main motion CARRIED. The rule proposal will be made part of the Evidence Rules Package, which will be sent to the Supreme Court when complete.
Staff presented proposed amendments to Rule 609 based on the amendments to the federal rule. Staff explained that under the proposed amendments there would be a subdivision (e) on use of convictions pending on appeal added to the rule and amendments to subdivision (b) that would require a balancing test when the court decides whether to allow admission of old criminal convictions.
Judge McCullough MOVED to adopt the proposed amendments to Rule 609 EXCEPT FOR the balancing test amendments to subdivision (b). Judge Herauf seconded.
A member asked about the phrase "readily determine" at line 24 on page 271. The member said this imposed an unnecessary requirement--if the elements of an offense do not clearly require proof of a dishonest act or false statement, that offense should not be admitted under paragraph (a)(2).
Mr. Reierson MOVED to amend to delete the words "court can readily determine that establishing the" at line 24 on page 271. Judge Marquart seconded.
A member said federal courts had likely adopted the "readily determine" requirement so that federal courts would have a standard to use when dealing with state statutes and laws with which they may be unfamiliar. A member said that if a party was seeking to have such past crime evidence admitted, it was the party's responsibility to establish the dishonest act or false statement element of the crime.
Motion CARRIED.
The main motion CARRIED. The rule proposal will be made part of the Evidence
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RULE 610, N.D.R.Ev., RELIGIOUS BELIEFS OR OPINIONS (PAGES 282-285 OF THE AGENDA MATERIAL)
Staff presented proposed amendments to Rule 610 based on the amendments to the federal rule.
Judge Fontaine MOVED to adopt the proposed amendments to Rule 610. Judge Marquart seconded.
The main motion CARRIED. The rule proposal will be made part of the Evidence Rules Package, which will be sent to the Supreme Court when complete.
Staff presented proposed amendments to Rule 611 based on the amendments to the federal rule.
Mr. Quick MOVED to adopt the proposed amendments to Rule 611. Mr. Beehler seconded.
The main motion CARRIED. The rule proposal will be made part of the Evidence Rules Package, which will be sent to the Supreme Court when complete.
Staff presented proposed amendments to Rule 612 based on the amendments to the federal rule. Staff explained that the federal rule does not allow the use of an object to refresh memory but that the previous North Dakota language on use of an object was retained in the proposal.
Judge Kleven MOVED to adopt the proposed amendments to Rule 612. Mr. Beehler seconded.
By unanimous consent, the Committee decided that the words "or object" should be retained in the rule's title.
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The main motion CARRIED. The rule proposal will be made part of the Evidence Rules Package, which will be sent to the Supreme Court when complete.
RULE 613, N.D.R.Ev., WITNESS'S PRIOR STATEMENT (PAGES 300-304 OF THE AGENDA MATERIAL)
Staff presented proposed amendments to Rule 613 based on the amendments to the federal rule.
Judge McCullough MOVED to adopt the proposed amendments to Rule 613. Judge Reich seconded.
The main motion CARRIED. The rule proposal will be made part of the Evidence Rules Package, which will be sent to the Supreme Court when complete.
RULE 614, N.D.R.Ev., COURT'S CALLING OR EXAMINING A WITNESS (PAGES 305-308 OF THE AGENDA MATERIAL)
Staff presented proposed amendments to Rule 614 based on the amendments to the federal rule.
Judge McCullough MOVED to adopt the proposed amendments to Rule 614. Mr. Olson seconded.
The Committee discussed whether the rule is ever applied in North Dakota. A member suggested that a custody investigator in a domestic case may be called by the court. A member said when a special master is appointed, this witness is called by the court. Members said that domestic cases and commercial cases were the most likely cases in which the court could call a witness.
The main motion CARRIED. The rule proposal will be made part of the Evidence Rules Package, which will be sent to the Supreme Court when complete.
RULE 615, N.D.R.Ev., EXCLUDING WITNESSES (PAGES 309-319 OF THE AGENDA MATERIAL)
Staff presented proposed amendments to Rule 615 based on the amendments to the
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Mr. Quick MOVED to adopt the proposed amendments to Rule 615. Judge Herauf seconded.
A member said the previous language referring to a party's "cause" seemed preferable to new language at line 16 on page 310 referring to a party's "claim and defense." The member said in a complicated prosecution, it is sometimes necessary to have a case agent on hand with experience in the investigation to keep track of documents and testimony. The member said the use of the "claim or defense" terminology seems more limiting than presentation of the party's cause, which might cause a court to hesitate to allow assistance by a case agent or to give the defense an argument against use of a case agent.
Mr. Olson MOVED to amend line 16 on page 310 to restore the previous "cause" terminology. Judge McLees seconded.
A member said there was really no difference between "cause" and "claim or defense." A member responded that "cause" embraces all the issues in a case while "claim or defense" relates to a single issue. The member said that because a "claim or defense" is more specific, a court might restrict the use and presence of a case agent to a specific part of the case when the specific "claim or defense" is litigated. A member suggested the word "evidence" be added to line 16 on page 310 to clarify that a person could be present in the court room to help present a party's evidence. A member said that use of this term could be used to justify exclusion of a case agent during closing argument, which does not involve presentation of evidence.
A member said it would be preferable to use the federal "claim or defense" language to ensure that no argument could be made that federal case law on the rule does not apply to aid in interpretation of the state rule. Staff said the prior federal rule used "cause" and the federal rulemakers did not intend to change the meaning of the rule by using "claim or defense" in the revision.
A member said that normally any law officer will be sequestered when they are not on the stand. A member replied that the prosecution is allowed to designate a case officer to assist in presentation of evidence. A member said the federal explanatory note discusses the importance of allowing an investigative agent to be present throughout trial and that the language at lines 13-14 on page 310 specifically allows this.
Motion FAILED.
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Judge Fontaine MOVED to amend line 10 on page 310 to replace the period after "testimony" with a comma and to lowercase the word "or." Judge McLees seconded. Motion CARRIED.
Mr. Dunn MOVED to amend line 10 on page 310 to delete the word "but" and capitalize the word "this." Judge Herauf seconded. Motion CARRIED.
The main motion CARRIED. The rule proposal will be made part of the Evidence Rules Package, which will be sent to the Supreme Court when complete.
RULE 701, N.D.R.Ev., OPINION TESTIMONY BY LAY WITNESSES (PAGES 320-324 OF THE AGENDA MATERIAL)
Staff presented proposed amendments to Rule 701 based on the amendments to the federal rule, including an amendment that would limit lay opinion testimony based on scientific, technical or specialized knowledge.
Mr. Quick MOVED to adopt the proposed amendments to Rule 701. Judge McLees seconded.
A member questioned the proposed amendment to limit lay witness testimony based on scientific, technical or specialized knowledge. The member said that even lay witnesses were likely to have knowledge of this kind and should be able to testify based on it. A member said that, based on the federal commentary, law officers would be limited from testifying as lay witnesses under the proposed amendment and would need to be disclosed as expert witnesses. The member said that the treating physician may also need to be listed as an expert too under the proposed amendments.
A member said there was a lot of overlap between expert testimony and factual testimony. A member said that, under the proposed amendments, every time a witness testified about something they did not see, hear, smell or touch, there would be an issue about whether that witness was testifying as an expert. The member said the proposed amendments would create an unworkable rule. A member gave as an example of an oil field case, in which people working in the field would have specialized knowledge and would naturally use that knowledge in providing factual testimony. The member said such witnesses could be excluded under the proposed amendments if not listed as experts.
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A member said the proposed amendments are problematic because law enforcement personnel, doctors, and health care workers would all probably need to be classified as experts. The member said the motion should carry because the proposed amendments would create confusion. A member said that even a witness with no particular expertise, testifying about what they saw and interpreting it based on their experience, could be challenged under the proposed amendments and stopped from testifying.
A member said that the proposed amendments do provide protection to a party who did not know ahead of time that an opposing lay witness, called as a fact witness, would be using their specialized knowledge when providing "factual" testimony. A member said that the proposal would provide clarity about how a particular witness should be characterized and whether the witness should be disclosed as an expert.
Motion CARRIED.
The main motion CARRIED. The rule proposal will be made part of the Evidence Rules Package, which will be sent to the Supreme Court when complete.
RULE 702, N.D.R.Ev., TESTIMONY BY EXPERTS (PAGES 325-349 OF THE AGENDA MATERIAL)
Staff presented proposed amendments to Rule 702 based on the amendments to the federal rule, including amendments based on changes to the federal rule adopted after Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993).
Judge Kleven MOVED to adopt the proposed amendments to Rule 702. Judge Herauf seconded.
A member said it would be useful to know how many states have adopted the Daubert principles. A member replied that it is not a simple issue, because some states have adopted part and not all of the Daubert reasoning. The member said some states had acted through judicial decisions and some through rulemaking.
A member said that adopting the proposed Daubert amendments would represent a significant change in practice in state courts. The member said it would create an explosion in pretrial practice and increase the cost of litigation for all sides. The member said federal court does not handle the same types of cases as state court. The member said it would be
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Mr. Dunn MOVED to delete lines 11-13 on page 327, removing the proposed Daubert amendments. Mr. Beehler seconded.
A member said this was an issue that applies to everyone in court and the proposed rule change would create problems for plaintiffs and defendants in state court. A member said based on brief research that 30 states have adopted some form of the Daubert rules. A member said that if the motion carries, the standard for expert testimony will continue to be the same as the state has followed for years and this would be appropriate.
A member said that adoption of the proposed Daubert amendments would give courts a tool to get rid of junk science. The member said that the proposed specific standards are helpful. A member replied that courts would be required to spend more time before trial deciding motions on expert qualifications if the proposed changes are adopted. A member said such issues usually come up pretrial rather than at trial.
Motion CARRIED.
By unanimous consent, the Committee decided that the word "expert" should be restored to the title.
The main motion CARRIED. The rule proposal will be made part of the Evidence Rules Package, which will be sent to the Supreme Court when complete.
RULE 703, N.D.R.Ev., BASES OF AN EXPERT'S OPINION TESTIMONY (PAGES 350-354 OF THE AGENDA MATERIAL)
Staff presented proposed amendments to Rule 703 based on the amendments to the federal rule.
Judge McCullough MOVED to adopt the proposed amendments to Rule 703. Judge Herauf seconded.
The main motion CARRIED. The rule proposal will be made part of the Evidence Rules Package, which will be sent to the Supreme Court when complete.
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Staff presented proposed amendments to Rule 704 based on the amendments to the federal rule, including an amendment that would prohibit an expert from testifying on whether a defendant's mental state satisfied an element of a crime.
Mr. Olson MOVED to adopt the proposed amendments to Rule 704. Mr. Quick seconded.
Staff explained that experts in North Dakota are currently allowed to testify about a defendant's mental state as it relates to the "ultimate issue" in a criminal case. A member said that making a change consistent with the federal change would be inconsistent with state case law and statutes. The member said a key question was how the proposed change would interact with statutes on the issue.
Judge Fontaine MOVED to table the rule until the September meeting so that staff can conduct additional research on how the proposed change would interact with state statutes. Judge McCullough seconded. Motion CARRIED.
Staff presented proposed amendments to Rule 705 based on the amendments to the federal rule.
Mr. Quick MOVED to adopt the proposed amendments to Rule 705. Judge Herauf seconded.
A member asked why the word "but" was used at the beginning of the second sentence of the rule. The member said the word was unnecessary and its use did not seem appropriate grammatically.
Judge McCullough MOVED to delete the word "but" in line 9 on page 366. Mr. Dunn seconded. Motion CARRIED.
The main motion CARRIED. The rule proposal will be made part of the Evidence Rules Package, which will be sent to the Supreme Court when complete.
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Staff presented proposed amendments to Rule 706 based on the amendments to the federal rule.
Judge Kleven MOVED to adopt the proposed amendments to Rule 706. Mr. Quick seconded.
The main motion CARRIED. The rule proposal will be made part of the Evidence Rules Package, which will be sent to the Supreme Court when complete.
Staff explained that the Supreme Court had made several changes to Rule 707 since the Committee had the opportunity to review it. Staff said that some new language in the rule had created disagreements between defense and prosecuting attorneys.
The Chair said the Supreme Court was currently considering a case in which the defense had requested under the rule that the prosecution produce a nurse who drew blood for a blood alcohol test. A member said that the issue of who could be requested to testify about an analytical report had been raised in other cases. A member said that the language in the rule's subdivision (b) did not seem to require that the person requested to testify about the report be a specific person. A member said that many different persons could have knowledge about an analytical report. The Chair said that the U.S. Supreme Court also had an analytical report confrontation clause case before it that had not yet been decided.
Judge McCullough MOVED to table the rule until the September meeting so that the current pending court decisions could be decided. Mr. Quick seconded. Motion CARRIED.
The meeting adjourned at approximately 11:45 a.m., on April 27, 2012.
________________________________
Michael J.
Hagburg
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