RULE 43. EVIDENCE
Form and admissibility In Open
Court. In every trial, the testimony of witnesses must be taken
orally or by non-oral means in open
court, unless otherwise provided by statute or these rules. Testimony must be taken orally
unless a witness is unable to reasonably communicate orally. All evidence must be admitted
which is admissible under the statutes of this state, the North Dakota Rules of Evidence, or
other rules adopted by the North Dakota Supreme Court. The court may, upon the agreement
of the parties, or for good cause shown in compelling and unexpected circumstances, and
upon appropriate safeguards, permit presentation of testimony in open court by
contemporaneous transmission from a different location. Notice must be given to the other
parties as soon as reasonably possible for testimony by contemporaneous transmission or by
a witness who is unable to reasonably communicate orally.
At trial, the witnesses' testimony must be taken in open court unless a statute, the Rules of Evidence, these rules, or other court rules provide otherwise. For good cause, or on agreement of the parties, and with appropriate safeguards, the court may permit testimony in open court by contemporaneous transmission from a different location. A party must give notice if a witness is unable to testify orally or if testimony by contemporaneous transmission may be necessary.
(b) Scope of Examination and
Cross-Examination. A party may interrogate any unwilling or hostile witness by
leading questions. A party may
call an adverse party or an officer, director, superintendent or managing agent of a public or
private corporation or of a partnership or association which is an adverse party, or a witness
identified with an adverse party, and interrogate the witness by leading questions and
contradict and impeach the witness in all respects as if the witness had been called by the
adverse party, and the witness thus called may be contradicted and impeached by or on
behalf of the adverse party also, and may be cross-examined by the adverse party only upon
the subject matter of the witness's examination in chief. (c) [Abrogated, effective January 1,
1980]. (d) [Abrogated, effective March 1,
1999]. (e) (b) Evidence on
motions a Motion. When a motion is based on facts not appearing of record
the court may hear the matter on
affidavits presented by the respective parties, but the court may direct the matter be heard
wholly or partly on testimony or depositions.
When a motion relies on facts outside the record, the court may hear the matter on affidavits or may hear it wholly or partly on oral testimony or on depositions.
Rule 43 was amended, effective 1976; January 1, 1980; March 1, 1999; March 1, 2011.
Subdivision (a) was amended, effective March 1, 1999, to follow the
amendment. See 1996 Advisory Committee Note,
Fed.R.Civ.P. 43 , FRCivP. The
requirement for testimony to be taken orally is deleted. The rule now allows testimony
witness to be given in open court by non-oral means, if the witness is unable to reasonably
communicate orally. The amendment also provides for presentation of testimony in open
court by contemporaneous transmission from a different location. However, the amendment
is not intended to allow contemporaneous transmission based upon mere convenience for a
witness as the requirement for "good cause shown in compelling and unexpected
circumstances" is not met. The parties may agree to such evidence, but trial court approval
is necessary. Ordinarily, deposition testimony should be used over contemporaneous
transmission. In addition, due process for an involuntary commitment hearing requires the
respondent have an opportunity to confront and cross-examine witnesses. In Arevalo v. J.S.,
530 N.W.2d 331, 335 (N.D. 1995). Although abrogated in the federal rule after adoption of the
Rules of Evidence, subdivision
(b) on examination and cross-examination of unwilling, hostile, and adverse witnesses has
been retained, with the addition of the phrase, "a witness identified with an adverse party,"
effective January 1, 1980. This phrase is borrowed from Rule 611 of the Rules of Evidence
which deals generally with the mode and order of interrogation and presentation of
witnesses. The added phrase is designed to enlarge the category of adverse witnesses
callable. Retention of subdivision (b) is designed to assure the retention of the rights to call
and interrogate an adverse witness by leading questions and of the adverse party to cross-examine
that witness upon the subject matter of his examination in chief, which Rule 611
does not clearly do as a matter of right.
Former subdivision (b) on scope of examination and cross-examination was deleted, effective March 1, 2011. These topics are covered in the Rules of Evidence.
The federal rule contains a subdivision (f) governing the appointment of interpreters. This is not needed in these rules, as it is adequately covered in N.D.C.C. § 31-01-11.
Rule 43 was amended, effective March 1, 2011, in response to the December 1, 2007, revision of the Federal Rules of Civil Procedure. The language and organization of the rule were changed to make the rule more easily understood and to make style and terminology consistent throughout the rules.
Sources: Joint Procedure Committee
Minutes of January 29-30, 2009, pages 34-35; January
29-30, 1998, pages 11-13; September 25-26, 1997, pages 10-11; November 29-30, 1979,
page 16; April 26-27, 1979, pages 17-18; September 23-24, 1976, page 79; June 3-4, 1976,
Rule Fed.R.Civ.P. 43 ,
Superseded: N.D.R.C. 1943
§§ 31-0122, 31-0202, 31-0206.
Considered: N.D.C.C. § 31-01-11.
Rules N.D.R.Ev. 101 (Scope), N.D.R.Ev. 103 (Rules
N.D.R.Ev. 104 (Preliminary Questions), N.D.R.Ev. 603 (Oath or
607 (Who May Impeach), and N.D.R.Ev. 611 (Mode and Order of Interrogation and
Presentation) , N.D.R.Ev.