TO: Joint Procedure Committee
FROM: Mike Hagburg
DATE: April 10, 2015
RE: Rule 15, N.D.R.Crim.P., Depositions
Fed.R.Crim.P. 15 was amended in December 2012 to provide a mechanism to take depositions in foreign countries without the presence of the defendant. A copy of this rule is attached. Our Rule 15 is based on Unif.R.Crim.P. 431, copy attached, which provides wider scope for depositions in criminal cases than the federal rule.
It is a general guideline that rules based on uniform rules (just as rules based on federal rules) should stay as close in content as possible to the model rule so that we can gain insight on interpreting the rule from the way other states have interpreted it. No state, however, has adopted all of the uniform criminal rules and staff's research did not reveal any other state that has adopted Unif.R.Crim.P. 431. At the same time, because our Rule 15 is not based on the federal rule, there is no need to adopt any part of the federal rule to maintain uniformity.
Rule 15 generally requires the defendant to be present at a deposition to perpetuate testimony, with exceptions to the requirement when the defendant waives presence or is voluntarily absent. The federal foreign deposition exception recognizes that the defendant simply may not be able to be present at a foreign deposition in some cases. It seems to provide a procedure that gives significant protections to the defendant when taking a foreign deposition is necessary in the absence of the defendant.
Proposed amendments to Rule 15 incorporating the federal foreign deposition exception are attached for the committee's discussion.