Obsolete Date: 3/1/2014
(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.
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 entitled "Affirmation Instead of an Oath." Affirmations and oaths are governed by N.D.R.Ct. 6.10 (Courtroom Oaths).
Subdivision (c) on interpreters was added, effective March 1, 2014. It is intended to reflect the American Bar Association Standards for Language Access in Courts. N.D.Sup.Ct.Admin.R. 50 (Court Interpreter Qualifications and Procedures) provides guidance on interpreter qualifications and requirements and detailed information on payment for interpreter services. Under Admin. Rule 50, a party in a civil case may be required to reimburse the court for interpreter costs based upon ability to pay.
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.
Rule 43 was amended, effective March 1, 2021, to delete the term “affidavit” and replace it with “declaration.” This amendment was made in response to N.D.C.C. ch. 31-15, which allows anyone to make an unsworn declaration that has the same effect as a sworn declaration, such as an affidavit. N.D.C.C. § 31-15-05 provides the required form for an unsworn declaration.
SOURCES: Joint Procedure Committee Minutes of January 30, 2020, page 25; January 29-30 2015, pages 8-10; September 25-26, 2014, pages 20-24; April 25-26, 2013, pages 16-18; January 31-February 1, 2013, pages 12-15; 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.
Superseded: N.D.C.C. § 31-01-12.
CONSIDERED: N.D.C.C. chs. 28-33, 31-15; § 31-01-11.
CROSS REFERENCE: N.D.R.Civ.P. 11. (Signing of Pleadings, Motions and Other Papers; Representations to Court; Sanctions); 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. 604 (Interpreters), N.D.R.Ev. 607 (Who May Impeach), and N.D.R.Ev. 611 (Mode and Order of Interrogation and Presentation)); N.D.R.Ct. 6.10 (Courtroom Oaths); N.D.Sup.Ct.Admin.R. 50 (Court Interpreter Qualifications and Procedures).