North Dakota Rules as Adopted

North Dakota Rule of Evidence 707, Analytical Report Admission: Confrontation

In response to the United States Supreme Court's decision in Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527 (2009), this Court considered a new rule of evidence. Melendez-Diaz held that analysts' certificates of analysis were testimonial statements, and the analysts were witnesses for Sixth Amendment confrontation purposes. Id. at 2532. The court also held that a defendant's ability to subpoena the analyst under state law did not abrogate the state's obligation to produce the analyst for cross-examination. Id. at 2540. The court approved the use of notice and demand statutes, which are effective in some states. Id. At 2541. A notice and demand statute requires the prosecution to give notice to the defendant of its intent to use an analyst's report as evidence at trial, after which the defendant is given a period of time to object to the admission of the report absent the analyst's live testimony at trial. Id.

North Dakota law allows a defendant to subpoena the person who conducted the chemical analysis to testify at trial. See N.D.C.C. її 19-03.1-37(5), 20.1-13.1-10(7), 20.1-15-11(9), 39-20-07(9), and 39-24.1-08(7); State v. Campbell, 2006 ND 168, І 12, 719 N.W.2d 374. Under Melendez-Diaz, the constitutionality of these statutes is open to question.

In January 2010, the United States Supreme Court is hearing arguments in Briscoe, et al. v. Virginia (07-11191), in which Melendez-Diaz will be further considered.

The Court considered the matter, and

ORDERED, that Rule 707 of the North Dakota Rules of Evidence is ADOPTED, effective February 1, 2010, subject to a comment period. A copy of the rule is attached.

IT IS FURTHER ORDERED, that any person wishing to comment on the proposed amendments may do so in writing before Monday, March 1, 2010. Written comments may be e-mailed to Penny Miller, Clerk of the Supreme Court, at supclerkofcourt@ndcourts.gov, or addressed to 600 E. Boulevard Ave., Bismarck, ND 58505-0530.

The Supreme Court of the State of North Dakota convened December 16, 2009, with the Honorable Gerald W. VandeWalle, Chief Justice, and the Honorable Dale V. Sandstrom, and the Honorable Mary Muehlen Maring, directing the Clerk of the Supreme Court to enter the above order. The Honorable Carol Ronning Kapsner and the Honorable Daniel J. Crothers, Justices, voted against the adoption of the rule as they would wait for the decision in Briscoe and not supersede statutes until the decision in that case is filed.

Penny Miller
Clerk
North Dakota Supreme Court