The North Dakota Supreme Court's amendments to the Rules of Evidence took effect March 1. The amendments are based on the December 2011 amendments to the Federal Rules of Evidence.
Most of the new evidence rule amendments are form and style amendments only and are not intended to affect the result in any ruling on evidence admissibility. Practitioners who use form motions or pleadings that include text from the evidence rules should review their documents to ensure they include the latest amendments.
The Court made some substantive amendments to the evidence rules.
Rule 707, Analytical Report Admission; Confrontation, which the Court developed itself, was amended to clarify that, if the defendant requests a person to testify about an analytical report at trial, the person must be someone who made a testimonial statement in the report. The Court also lengthened the rule’s deadlines: the prosecution must serve a copy of the analytical report on the defendant no later than 60 days before the date set for trial and the defendant has until 45 days before the date set for trial to object to the introduction of the report. A further amendment gives the trial court discretion to modify these deadlines.
Rule 412, Sex-Offense Cases: The Victim's Sexual Behavior or Predisposition, was amended to establish a standard for the admission of sexual behavior evidence in civil cases. The amendment was based on the language of the federal rule.
Rule 803, Exceptions to the Rule Against Hearsay Regardless of Whether the Declarant is Available as a Witness, and Rule 902, Evidence that is Self-Authenticating, were amended to ease foundation requirements for admission of evidence under the business records exception. Rule 803 was amended to allow foundation to be established by certification; Rule 902 was amended to establish standards for the certificate. Rule 902 also provides an opposing party an opportunity to test the adequacy of the foundation provided in the certificate.
The 500 series evidence rules on privilege contain significant amendments, some of which affect evidence admissibility. These rules are not based on the federal rules – they were adapted from the 1974 version of the Uniform Rules of Evidence. The new amendments generally follow the 1999 Uniform Rules of Evidence.
In Rule 501 - Privileges Recognized Only as Provided, the term "writing" was replaced with the term "record" to account for electronic records and documents.
In Rule 502 - Lawyer-Client Privilege, new language was included to assure that a client does not lose the benefit of the privilege in situations where a representative of a lawyer was not in the employment of the lawyer, but was reasonably believed by the client to be so employed. A further amendment provides that there is no privilege under the rule for communication necessary for a lawyer to defend in a legal proceeding against a charge that the lawyer assisted the client in criminal or fraudulent conduct.
In Rule 503 - Physician and Mental Health Professional-Patient Privilege, the term "psychotherapist" was replaced throughout the rule with the broader term "mental health professional." To balance this broadening of the rule, additional exceptions to the privilege were added.
In Rule 504 - Spousal Privilege, spousal privilege was extended to civil cases and the term "person" was replaced with "individual," which is intended to mean a human being.
In Rule 505 - Religious Privilege, the gender specific term "clergyman" was replaced with the neutral term "cleric" and the term "person" was replaced with "individual." Likewise, in Rule 506 - Political Vote, gender specific language and the term "person" were replaced throughout the rule with the term "individual."
On the other hand, in Rule 507 - Trade Secrets, gender specific language in the rule was replaced with the term "person," which includes individual human beings and also public officers, corporations, associations, and other organizations and entities, public and private.
In Rule 508 - Secrets of State and Other Official Information; Governmental Privileges, titles were added to subdivisions (a) and (b) while in Rule 509 - Identity of Informer, several occurrences of the term "person" were replaced with "individual."
Rule 510 - Waiver of Privilege by Voluntary Disclosure and Rule 511 - Privileged Matter Disclosed under Compulsion or Without Opportunity to Claim Privilege were combined so that both voluntary and involuntary waiver of privilege would be addressed in the same rule. Additional amendments were adopted to replace gender specific language with "person."
Minor, but still substantive amendments, were made to several other rules.
In Rule 101 – Scope; Definitions, a set of definitions applicable to the Rules of Evidence in general was added. In Rule 103 - Rulings on Evidence, new language was added to clarify that a party need not renew an objection or offer of proof once the court "rules definitively" on the record at trial.
In Rule 609 - Impeachment by Evidence of Criminal Conviction, an amendment was made to clarify that convictions pending appeal are admissible under the rule. Finally, in Rule 1101 - Applicability of Rules, amendments were made to account for situations in which a court rule outside the Rules of Evidence may have impact on the exclusion or admission of evidence in a particular situation.
March 3, 2014