RULE 15. DEPOSITIONS
1 (a) When Taken. At any time after the defendant has appeared, any party
2 may take testimony of any person by deposition including audio-visual depositions
3 taken as provided in N.D.R.Civ.P. 30.1, except:
4 (1) the defendant may not be deposed unless the defendant consents and the
5 defendant's lawyer, if the defendant has one, is present or the defendant waives the
6 lawyer's presence;
7 (2) a discovery deposition may be taken after the time set by the court only
8 with leave of court;
9 (3) a deposition to perpetuate testimony may be taken only with leave of
10 court, which must be granted upon motion of any party if it appears that the
11 deponent may be able to give material testimony but may be unable to attend a trial
12 or hearing;
13 (4) upon motion of a party or of the deponent and upon a showing that the
14 taking of the deposition does or will unreasonably annoy, embarrass, or oppress, or
15 cause undue burden or expense to, the deponent or a party, the court in which the
16 prosecution is pending or a court of the jurisdiction where the deposition is being
17 taken may order that the deposition not be taken or continued or may limit the
18 scope and manner of its taking. Upon demand of the objecting party or deponent,
19 the taking of the deposition may be suspended for the time necessary to make the
21 (5) a victim may refuse to participate in a deposition requested by the
22 defendant or the defendant's attorney.
23 Attendance of witnesses and production of documentary evidence and
24 objects may be compelled by subpoena under Rule 17.
25 (b) Witness Who Would Not Respond To Subpoena. If a party is granted
26 leave to take a deposition to perpetuate testimony, the court, upon motion of the
27 party and a showing of probable cause to believe that the deponent would not
28 respond to a subpoena, by order must direct a law enforcement officer to take the
29 deponent into custody and hold the deponent until the taking of the deposition
30 commences but not to exceed six hours and to keep the deponent in custody during
31 the taking of the deposition. If the motion is by the prosecuting attorney, the court,
32 upon further motion by the prosecuting attorney and a showing of probable cause
33 to believe the defendant would not otherwise attend the taking of the deposition,
34 may make the same order for the defendant.
35 (c) Notice Of Taking. The party at whose instance the deposition is to be
36 taken shall give all parties reasonable written notice of the name and address of
37 each person to be examined, the time and place for the deposition, and the manner
38 of recording. Upon motion of a party or of the deponent, the court may change the
39 time, place, or manner of record.
40 (d) How Taken. The deposition must be taken in the manner provided in
41 civil actions, except:
42 (1) if the deposition is taken at a place over which this state lacks
43 jurisdiction, it may be taken instead in the manner provided by the law of that
45 (2) it must be recorded by the means specified in the notice; and
46 (3) upon motion of a party and a showing that a party or the deponent is
47 engaging in serious misconduct at the taking of a deposition, the court by order
48 may direct that the deposition's taking be continued in the presence of a designated
49 officer, in which case the designated officer may preside over the remainder of the
50 deposition's taking.
51 (e) Place Of Taking. The deposition must be taken in a building where the
52 trial may be held, at a place agreed upon by the parties, or at a place designated by
53 special or general order of the court. If the defendant is in custody or subject to
54 terms of release that prohibit leaving the state and does not appear before the court
55 and understandingly and voluntarily waives the right to be present, a deposition to
56 perpetuate testimony must not be taken at a place which requires transporting the
57 defendant within a jurisdiction that does not confer upon law enforcement officers
58 of this state the right to transport prisoners within it.
59 (f) Presence Of Defendant.
60 (1) At Discovery Deposition. The defendant may be present at the taking of
61 a discovery deposition, but if the defendant is in custody, the defendant may be
62 present only with leave of court.
63 (2) At Deposition To Perpetuate Testimony. The defendant must be present
64 at the taking of a deposition to perpetuate testimony, but if the defendant's counsel
65 is present at the taking:
66 (A) the court may excuse the defendant from being present if the defendant
67 appears before the court and understandingly and voluntarily waives the right to be
69 (B) the taking of the deposition may continue if the defendant, present when
70 it commenced, leaves voluntarily; or
71 (C) if the deposition's taking is presided over by a judicial officer, the
72 judicial officer may direct that the deposition's taking or part of the deposition's
73 taking be conducted in the defendant's absence if the judicial officer has justifiably
74 excluded the defendant because of the defendant's disruptive conduct.
75 (3) Unexcused Absence. If the defendant is not present at the
76 commencement of the taking of a deposition to perpetuate testimony and the
77 defendant's absence has not been excused:
78 (A) its taking may proceed, in which case the deposition may be used only
79 as a discovery deposition; or
80 (B) if the deposition is taken at the instance of the prosecution, the
81 prosecuting attorney may direct that the commencement of its taking be postponed
82 until the defendant's attendance can be obtained, and the court, upon application of
83 the prosecuting attorney, by order may direct a law enforcement officer to take the
84 defendant into custody during the taking of the deposition.
85 (4) Taking Depositions Outside the United States Without the Defendant's
86 Presence. The deposition of a witness who is outside the United States may be
87 taken without the defendant's presence if the court makes case-specific findings of
88 all the following:
89 (A) the witness's testimony could provide substantial proof of a material
90 fact in a felony prosecution;
91 (B) there is a substantial likelihood that the witness's attendance at trial
92 cannot be obtained;
93 (C) the witness's presence for a deposition in the United States cannot be
95 (D) the defendant cannot be present because:
96 (i) the country where the witness is located will not permit the defendant to
97 attend the deposition;
98 (ii) for an in-custody defendant, secure transportation and continuing
99 custody cannot be assured at the witness's location; or
100 (iii) for an out-of-custody defendant, no reasonable conditions will assure
101 an appearance at the deposition or at trial or sentencing; and
102 (E) the defendant can meaningfully participate in the deposition through
103 reasonable means.
104 (g) Payment Of Expenses. If the deposition is taken at the instance of the
105 prosecution, the court may, and in all cases where the defendant is unable to bear
106 the expense the court must, direct the state to pay the expense of taking the
107 deposition, including the reasonable expenses of travel and subsistence of defense
108 counsel and, if the deposition is to perpetuate testimony or if the court permits for
109 a discovery deposition, of the defendant in attending the deposition.
110 (h) Substantive Use On Grounds Of Unavailability. So far as otherwise
111 admissible under the rules of evidence, a deposition to perpetuate testimony may
112 be used as substantive evidence at the trial or upon any hearing if the deponent is
113 unavailable as defined in N.D.R.Ev. 804(a). A discovery deposition may then be so
114 used if the court determines that the use is fair in light of the nature and extent of
115 the total examination at the taking thereof, but it may be offered by the prosecution
116 only if the defendant was present at its taking. If only a part of a deposition is
117 offered in evidence by a party, an adverse party may require the offering of all of it
118 that is relevant to the part offered.
119 (i) Objections To Admissibility. Objections to receiving in evidence a
120 deposition or part of a deposition may be made as provided in civil actions.
121 (j) Deposition By Agreement Not Precluded. Nothing in this rule precludes
122 the taking of a deposition, orally or upon written questions, or the use of a
123 deposition, by agreement of the parties.
124 EXPLANATORY NOTE
125 Rule 15 was amended, effective January 1, 1980; March 1, 1990; March 1,
126 2006; March 1, 2016; May 1, 2017 .
127 Rule 15 is substantially the same as Rule 431, Uniform Rules of Criminal
128 Procedure (1974). Former Rule 15, effective until January 1, 1980, was an
129 adaptation of Fed.R.Crim.P. 15. The present rule provides for a greatly expanded
130 use of depositions in criminal cases.
131 Subdivisions (a), (b), (f) and (h) were amended, effective March 1, 1990.
132 The amendments are technical in nature and no substantive change is intended.
133 Rule 15 was amended, effective March 1, 2006, in response to the
134 December 1, 2002, revision of the Federal Rules of Criminal Procedure. The
135 language and organization of the rule were changed to make the rule more easily
136 understood and to make style and terminology consistent throughout the rules.
137 Subdivision (a) permits depositions to be taken to perpetuate testimony, as
138 in the former rule, but also for discovery purposes, which was not previously
139 provided for. Rather than requiring court approval of discovery depositions, this
140 subdivision changes the emphasis by allowing them without court approval,
141 subject to the right of a party or deponent to move under paragraph (4) to have a
142 court order that the deposition be continued, not taken, or limited in scope or
143 manner of taking. The court will set a time after which discovery depositions may
144 not be taken without court permission. Leave of court is required for the taking of
145 a deposition to perpetuate testimony.
146 Subdivision (a) was amended, effective March 1, 1990. The amendment
147 was made to clarify the fact that audio-visual depositions may be taken under the
148 rule. The amendment also provides that the method of taking audio-visual
149 depositions is governed by N.D.R.Civ.P. 30.1.
150 Subdivision (a) was amended, effective May 1, 2017, to add a new
151 paragraph (a)(5) providing that a victim may refuse to participate in a deposition
152 requested by the defendant or the defendant's attorney. This right is granted by
153 N.D. Const. Art. I, § 25(1)(f). "Victim" is defined in N.D. Const. Art. I, § 25(4).
154 Subdivision (b) provides a method for securing the attendance of a
155 depondent who would not respond to a subpoena. In addition, to ensure
156 confrontation and the presence of the defendant required by subdivision (f)(2) to
157 use the deposition at trial, the prosecuting attorney may move the court for an
158 order to secure defendant's presence at the taking of a deposition.
159 Requirements for notice of the taking of a deposition are set forth in
160 subdivision (c). The court may change the noticed time, place, or manner of
161 recording upon motion of the deponent, as well as any party.
162 Subdivision (d) specifies that a deposition be taken in the same manner as
163 in civil actions, with certain exceptions. Paragraph (1) covers depositions on
164 enclaves over which the State of North Dakota lacks jurisdiction, such as Indian
165 reservations, as well as depositions outside the physical boundaries of the state.
166 Paragraph (2) allows depositions to be recorded by other than stenographic means,
167 without a court order. Provision is made in paragraph (3) for a court to designate
168 an official to preside over a deposition upon a showing of misconduct by a party or
169 the deponent.
170 The place of taking a deposition is governed by subdivision (e). Restriction
171 is placed on taking depositions outside of this state in situations where the
172 defendant may not travel or be transported to the proposed location, unless the
173 defendant waives the right to be present.
174 Subdivision (f) concerns the presence of the defendant at a deposition.
175 Distinction is made between a discovery deposition and one to perpetuate
176 testimony. The defendant is not required to be present at a discovery deposition,
177 but the defendant's presence may enable the prosecution to use the deposition as
178 substantive evidence at trial, as provided in subdivision (h). The taking of a
179 deposition to perpetuate testimony necessitates the defendant's presence, with four
180 exceptions: defendant is excused by the court upon an appearance and voluntary
181 waiver of the right to be present; defendant is voluntarily absent after start of
182 deposition; a judicial officer presiding over the deposition justifiably excludes the
183 defendant because of the defendant's disruptive conduct; or the court allows a
184 deposition to be taken outside the United States without the defendant's presence
185 after making case-specific findings. No warning is expressly required before
186 exclusion, as in Rule 43(b)(2). If the defendant is not present at a deposition to
187 perpetuate testimony under one of the above exceptions, the defendant's counsel
188 must be.
189 Paragraph (3) of subdivision (f) covers the situation when the defendant is
190 not present at the start of a deposition to perpetuate testimony and has not been
191 excused under paragraph (2). The taking may proceed as a discovery deposition or
192 the prosecuting attorney, if the prosecuting attorney is taking the deposition, may
193 postpone the taking and secure a court order to take the defendant into custody to
194 assure the defendant's presence, so that the deposition will have the greater
195 admissibility of a perpetuation deposition.
196 Paragraph (f)(4) was adopted, effective March 1, 2016, to allow a
197 deposition to be taken outside the United States without the defendant's presence
198 in certain specified circumstances. The provision was based on Fed.R.Crim.P.
200 SOURCES: Joint Procedure Committee Minutes of January 26-27, 2017,
201 pages 7-9; April 23-24, 2015, pages 26-27; January 27-28, 2005, page 12; April
202 20, 1989, pages 4-5; March 24-25, 1988, pages 6-7; December 3, 1987, pages 9-10
203 and 15; January 25-26, 1979, pages 5-7; December 7-8, 1978, pages 33-37;
204 October 12-13, 1978, page 3; April 2- 26, 1973, pages 9-10; June 26-27, 1972,
205 page 3; December 11-12, 1968, pages 2-24; September 26-27, 1968, pages 2-6;
206 Rule 431, Uniform Rules of Criminal Procedure (1974).
207 STATUTES AFFECTED:
208 SUPERSEDED: N.D.C.C. ch. 31-06.
209 CONSIDERED: N.D. Const. Art. I, § 25; N.D.C.C. ch. 31-04.
210 CROSS REFERENCE: N.D.R.Crim.P. 17 (Subpoena); N.D.R.Crim.P. 43
211 (Defendant's Presence); N.D.R.Civ.P. 30.1 (Uniform Audio-Visual Deposition
212 Rule); N.D.R.Ev. 804 (Hearsay Exceptions; Declarant Unavailable).