TO: Joint Procedure Committee
FROM: Mike Hagburg
DATE: January 9, 2009
RE: Rule 43, N.D.R.Civ.P., Evidence
Staff has prepared amendments to Rule 43 based on the federal form and style amendments. The amendments are intended make the rule more easily understood and to make style and terminology consistent throughout the rules. The amendments also aim to modernize the rule, removing references to obsolete authority and practices.
The federal rule no longer contains language on oral and non-oral testimony and the proposal likewise omits this language except to specify that if a witness is not able to testify orally, notice must be given. Deletion of material in the explanatory note on the now-omitted language is proposed.
Subdivision (b) was retained even though similar language in the federal rule was deleted when the Rules of Evidence were put in place. The Committee may wish to examine this subdivision and the explanatory note material discussing its retention and consider whether this subdivision needs to be retained now that the Rules of Evidence have been in place for more than 30 years.
The proposed amendments to Rule 43 are attached along with a copy of the amendments
to the federal rule.