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 Rule 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; and
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 Attendance of witnesses and production of documentary evidence and
22 objects may be compelled by subpoena under Rule 17.
23 (b) Witness who would not respond to subpoena. If a party is granted leave
24 to take a deposition to perpetuate testimony, the court, upon motion of the party
25 and a showing of probable cause to believe that the deponent would not respond to
26 a subpoena, by order must direct a law enforcement officer to take the deponent
27 into custody and hold the deponent until the taking of the deposition commences
28 but not to exceed six hours and to keep the deponent in custody during the taking
29 of the deposition. If the motion is by the prosecuting attorney, the court, upon
30 further motion by the prosecuting attorney and a showing of probable cause to
31 believe the defendant would not otherwise attend the taking of the deposition, may
32 make the same order for the defendant.
33 (c) Notice of taking. The party at whose instance the deposition is to be
34 taken shall give all parties reasonable written notice of the name and address of
35 each person to be examined, the time and place for the deposition, and the manner
36 of recording. Upon motion of a party or of the deponent, the court may change the
37 time, place, or manner of record.
38 (d) How taken. The deposition must be taken in the manner provided in
39 civil actions, except:
40 (1) if the deposition is taken at a place over which this state lacks
41 jurisdiction, it may be taken instead in the manner provided by the law of that
43 (2) it must be recorded by the means specified in the notice; and
44 (3) upon motion of a party and a showing that a party or the deponent is
45 engaging in serious misconduct at the taking of a deposition, the court by order
46 may direct that the deposition's taking be continued in the presence of a designated
47 officer, in which case the designated officer may preside over the remainder of the
48 deposition's taking.
49 (e) Place of taking. The deposition must be taken in a building where the
50 trial may be held, at a place agreed upon by the parties, or at a place designated by
51 special or general order of the court. If the defendant is in custody or subject to
52 terms of release that prohibit leaving the state and does not appear before the court
53 and understandingly and voluntarily waives the right to be present, a deposition to
54 perpetuate testimony must not be taken at a place which requires transporting the
55 defendant within a jurisdiction that does not confer upon law enforcement offi`
56 cers of this state the right to transport prisoners within it.
57 (f) Presence of defendant.
58 (1) At discovery deposition. The defendant may be present at the taking of a
59 discovery deposition, but if the defendant is in custody, the defendant may be
60 present only with leave of court.
61 (2) At deposition to perpetuate testimony. The defendant must be present at
62 the taking of a deposition to perpetuate testimony, but if the defendant's counsel is
63 present at the taking:
64 (A) the court may excuse the defendant from being present if the defendant
65 appears before the court and understandingly and voluntarily waives the right to be
67 (B) the taking of the deposition may continue if the defendant, present when
68 it commenced, leaves voluntarily; or
69 (C) if the deposition's taking is presided over by a judicial officer, the
70 judicial officer may direct that the deposition's taking or part of the deposition's
71 taking be conducted in the defendant's absence if the judicial officer has justifiably
72 excluded the defendant because of the defendant's disruptive conduct.
73 (3) Unexcused absence. If the defendant is not present at the
74 commencement of the taking of a deposition to perpetuate testimony and the
75 defendant's absence has not been excused:
76 (A) its taking may proceed, in which case the deposition may be used only
77 as a discovery deposition; or
78 (B) if the deposition is taken at the instance of the prosecution, the
79 prosecuting attorney may direct that the commencement of its taking be postponed
80 until the defendant's attendance can be obtained, and the court, upon application of
81 the prosecuting attorney, by order may direct a law enforcement officer to take the
82 defendant into custody during the taking of the deposition.
83 (4) Taking Depositions Outside the United States Without the Defendant's
84 Presence. The deposition of a witness who is outside the United States may be
85 taken without the defendant's presence if the court makes case-specific findings of
86 all the following:
87 (A) the witness's testimony could provide substantial proof of a material
88 fact in a felony prosecution;
89 (B) there is a substantial likelihood that the witness's attendance at trial
90 cannot be obtained;
91 (C) the witness's presence for a deposition in the United States cannot be
93 (D) the defendant cannot be present because:
94 (i) the country where the witness is located will not permit the defendant to
95 attend the deposition;
96 (ii) for an in-custody defendant, secure transportation and continuing
97 custody cannot be assured at the witness's location; or
98 (iii) for an out-of-custody defendant, no reasonable conditions will assure
99 an appearance at the deposition or at trial or sentencing; and
100 (E) the defendant can meaningfully participate in the deposition through
101 reasonable means.
102 (g) Payment of expenses. If the deposition is taken at the instance of the
103 prosecution, the court may, and in all cases where the defendant is unable to bear
104 the expense the court must, direct the state to pay the expense of taking the
105 deposition, including the reasonable expenses of travel and subsistence of defense
106 counsel and, if the deposition is to perpetuate testimony or if the court permits for
107 a discovery deposition, of the defendant in attending the deposition.
108 (h) Substantive use on grounds of unavailability. So far as otherwise
109 admissible under the rules of evidence, a deposition to perpetuate testimony may
110 be used as substantive evidence at the trial or upon any hearing if the deponent is
111 unavailable as defined in N.D.R.Ev. 804(a). A discovery deposition may then be so
112 used if the court determines that the use is fair in light of the nature and extent of
113 the total examination at the taking thereof, but it may be offered by the prosecution
114 only if the defendant was present at its taking. If only a part of a deposition is
115 offered in evidence by a party, an adverse party may require the offering of all of it
116 that is relevant to the part offered.
117 (i) Objections to admissibility. Objections to receiving in evidence a
118 deposition or part of a deposition may be made as provided in civil actions.
119 (j) Deposition by agreement not precluded. Nothing in this rule precludes
120 the taking of a deposition, orally or upon written questions, or the use of a
121 deposition, by agreement of the parties.
122 EXPLANATORY NOTE 123 Rule 15 was amended, effective January 1, 1980; March 1, 1990; March 1,
124 2006; March 1, 2016.
125 Rule 15 is substantially the same as Rule 431, Uniform Rules of Criminal
126 Procedure (1974). Former Rule 15, effective until January 1, 1980, was an
127 adaptation of Fed.R.Crim.P. 15. The present rule provides for a greatly expanded
128 use of depositions in criminal cases. Subdivisions (a), (b), (f) and (h) were
129 amended, effective March 1, 1990. The amendments are technical in nature and no
130 substantive change is intended.
131 Rule 15 was amended, effective March 1, 2006, in response to the
132 December 1, 2002, revision of the Federal Rules of Criminal Procedure. The
133 language and organization of the rule were changed to make the rule more easily
134 understood and to make style and terminology consistent throughout the rules.
135 Subdivision (a) permits depositions to be taken to perpetuate testimony, as
136 in the former rule, but also for discovery purposes, which was not previously
137 provided for. Rather than requiring court approval of discovery depositions, this
138 subdivision changes the emphasis by allowing them without court approval,
139 subject to the right of a party or deponent to move under paragraph (4) to have a
140 court order that the deposition be continued, not taken, or limited in scope or
141 manner of taking. The court will set a time after which discovery depositions may
142 not be taken without court permission. Leave of court is required for the taking of
143 a deposition to perpetuate testimony.
144 Subdivision (a) was amended, effective March 1, 1990. The amendment
145 was made to clarify the fact that audio-visual depositions may be taken under the
146 rule. The amendment also provides that the method of taking audio-visual
147 depositions is governed by N.D.R.Civ.P. 30.1.
148 Subdivision (b) provides a method for securing the attendance of a
149 depondent who would not respond to a subpoena. In addition, to ensure
150 confrontation and the presence of the defendant required by subdivision (f)(2) to
151 use the deposition at trial, the prosecuting attorney may move the court for an
152 order to secure defendant's presence at the taking of a deposition.
153 Requirements for notice of the taking of a deposition are set forth in
154 subdivision (c). The court may change the noticed time, place, or manner of
155 recording upon motion of the deponent, as well as any party.
156 Subdivision (d) specifies that a deposition be taken in the same manner as
157 in civil actions, with certain exceptions. Paragraph (1) covers depositions on
158 enclaves over which the State of North Dakota lacks jurisdiction, such as Indian
159 reservations, as well as depositions outside the physical boundaries of the state.
160 Paragraph (2) allows depositions to be recorded by other than stenographic means,
161 without a court order. Provision is made in paragraph (3) for a court to designate
162 an official to preside over a deposition upon a showing of misconduct by a party or
163 the deponent.
164 The place of taking a deposition is governed by subdivision (e). Restriction
165 is placed on taking depositions outside of this state in situations where the
166 defendant may not travel or be transported to the proposed location, unless the
167 defendant waives the right to be present.
168 Subdivision (f) concerns the presence of the defendant at a deposition.
169 Distinction is made between a discovery deposition and one to perpetuate
170 testimony. The defendant is not required to be present at a discovery deposition,
171 but the defendant's presence may enable the prosecution to use the deposition as
172 substantive evidence at trial, as provided in subdivision (h). The taking of a
173 deposition to perpetuate testimony necessitates the defendant's presence, with
174 four exceptions: defendant is excused by the court upon an appearance and
175 voluntary waiver of the right to be present; defendant is voluntarily absent after
176 start of deposition;
or if a judicial officer presiding over the
177 excludes the defendant because of the defendant's disruptive conduct; or the court
178 allows a deposition to be taken outside the United States without the defendant's
179 presence after making case-specific findings. No warning is expressly required
180 before exclusion, as in Rule 43(b)(2). If the defendant is not present at a deposition
181 to perpetuate testimony under one of the above exceptions, the defendant's counsel
182 must be.
183 Paragraph (3) of subdivision (f) covers the situation when the defendant is
184 not present at the start of a deposition to perpetuate testimony and has not been
185 excused under paragraph (2). The taking may proceed as a discovery deposition or
186 the prosecuting attorney, if the prosecuting attorney is taking the deposition, may
187 postpone the taking and secure a court order to take the defendant into custody to
188 assure the defendant's presence, so that the deposition will have the greater
189 admissibility of a perpetuation deposition.
190 Paragraph (f)(4) was adopted, effective March 1, 2016, to allow a
191 deposition to be taken outside the United States without the defendant's presence
192 in certain specified circumstances. The provision was based on Fed.R.Crim.P.
194 Sources: Joint Procedure Committee Minutes of April 23-24, 2015, pages
195 26-27; January 27-28, 2005, page 12; April 20, 1989, pages 4-5; March 24-25,
196 1988, pages 6-7; December 3, 1987, pages 9-10 and 15; January 25-26, 1979,
197 pages 5-7; December 7-8, 1978, pages 33-37; October 12-13, 1978, page 3; April
198 24-26, 1973, pages 9-10; June 26-27, 1972, page 3; December 11-12, 1968, pages
199 2-24; September 26-27, 1968, pages 2-6; Rule 431, Uniform Rules of Criminal
200 Procedure (1974).
201 Statutes Affected:
202 Superseded: N.D.C.C. ch. 31-06.
203 Considered: N.D.C.C. ch. 31-04.
204 Cross Reference: N.D.R.Crim.P. 17 (Subpoena); N.D.R.Crim.P. 43
205 (Defendant's Presence); N.D.R.Civ.P. 30.1 (Uniform Audio-Visual Deposition
206 Rule); N.D.R.Ev. 804 (Hearsay Exceptions; Declarant Unavailable).