RULE 43. EVIDENCE
(a) In Open Court. 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) Evidence on a Motion. 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 1996 federal amendment. See 1996 Advisory Committee Note, Fed.R.Civ.P. 43. The requirement for testimony to be taken orally is deleted.
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 Section 31-01-11, N.D.C.C.
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, pages 16-18; Fed.R.Civ.P. 43.
CONSIDERED: N.D.C.C. § 31-01-11.
CROSS REFERENCE: N.D.R.Ev. 101 (Scope), N.D.R.Ev. 103 (Rules on Evidence), N.D.R.Ev. 104 (Preliminary Questions), N.D.R.Ev. 603 (Oath or Affirmation), N.D.R.Ev. 607 (Who May Impeach), and N.D.R.Ev. 611 (Mode and Order of Interrogation and Presentation).