TO: Joint Procedure Committee
FROM: Mike Hagburg
DATE: January 6, 2015
RE: Rule 803, N.D.R.Ev., Exceptions to the Rule Against Hearsay Regardless of Whether the Declarant Is Available as a Witness
Amendments to Fed.R.Ev. 803 (10) took effect Dec. 1, 2013. These amendments were intended to bring 803(10) into compliance with Melendez-Diaz v. Massachussetts, 557 U.S. 305 (2009).
The federal advisory committee explained the rationale for the change in its transmittal memo:
"The proposed amendment revises the hearsay exception for the absence of a public record or entry to avoid a constitutional infirmity in the current rule in light of the Supreme Court's decision in Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009). Rule 803(10) currently allows the government to prove in a criminal case, through the introduction of a certificate, that a public record does not exist. Under Melendez-Diaz, the certificate would often be "testimonial" within the meaning of the Confrontation Clause, as construed by Crawford v. Washington/u>, 541 U.S. 36 (2004). Therefore, the admission of certificates (in lieu of testimony) violates the accused's right of confrontation. The proposed amendment to Rule 803(10) addresses the Confrontation Clause problem in the current rule by adding a "notice-and-demand" procedure."
North Dakota adopted the "notice and demand" procedure in Rule 707, which governs analytic report certificates. A copy of Rule 707 is attached for the committee's information. Under the federal amendments to Rule 803, the notice can be made as late as 14 days before trial Rule 707 requires 60 days notice for use of an analytic report certificate. The committee may wish to discuss whether the Rule 803 notice period should conform with the Rule 707 period.
Proposed amendments to N.D.R.Ev. 803 that are consistent with the federal amendments are attached.