(a) When Taken. At any time after the defendant has appeared, any party may take testimony of any person by deposition including audio-visual depositions taken as provided in N.D.R.Civ.P. 30.1, except:
(1) the defendant may not be deposed unless the defendant consents and the defendant's lawyer, if the defendant has one, is present or the defendant waives the lawyer's presence;
(2) a discovery deposition may be taken after the time set by the court only with leave of court;
(3) a deposition to perpetuate testimony may be taken only with leave of court, which must be granted upon motion of any party if it appears that the deponent may be able to give material testimony but may be unable to attend a trial or hearing;
(4) upon motion of a party or of the deponent and upon a showing that the taking of the deposition does or will unreasonably annoy, embarrass, or oppress, or cause undue burden or expense to, the deponent or a party, the court in which the prosecution is pending or a court of the jurisdiction where the deposition is being taken may order that the deposition not be taken or continued or may limit the scope and manner of its taking. Upon demand of the objecting party or deponent, the taking of the deposition may be suspended for the time necessary to make the motion; and
(5) a victim may refuse to participate in a deposition requested by the defendant or the defendant's attorney.
Attendance of witnesses and production of documentary evidence and objects may be compelled by subpoena under Rule 17.
(b) Witness Who Would Not Respond To Subpoena. If a party is granted leave to take a deposition to perpetuate testimony, the court, upon motion of the party and a showing of probable cause to believe that the deponent would not respond to a subpoena, by order must direct a law enforcement officer to take the deponent into custody and hold the deponent until the taking of the deposition commences but not to exceed six hours and to keep the deponent in custody during the taking of the deposition. If the motion is by the prosecuting attorney, the court, upon further motion by the prosecuting attorney and a showing of probable cause to believe the defendant would not otherwise attend the taking of the deposition, may make the same order for the defendant.
(c) Notice Of Taking. The party at whose instance the deposition is to be taken shall give all parties reasonable written notice of the name and address of each person to be examined, the time and place for the deposition, and the manner of recording. Upon motion of a party or of the deponent, the court may change the time, place, or manner of record.
(d) How Taken. The deposition must be taken in the manner provided in civil actions, except:
(1) if the deposition is taken at a place over which this state lacks jurisdiction, it may be taken instead in the manner provided by the law of that place;
(2) it must be recorded by the means specified in the notice; and
(3) upon motion of a party and a showing that a party or the deponent is engaging in serious misconduct at the taking of a deposition, the court by order may direct that the deposition's taking be continued in the presence of a designated officer, in which case the designated officer may preside over the remainder of the deposition's taking.
(e) Place Of Taking. The deposition must be taken in a building where the trial may be held, at a place agreed upon by the parties, or at a place designated by special or general order of the court. If the defendant is in custody or subject to terms of release that prohibit leaving the state and does not appear before the court and understandingly and voluntarily waives the right to be present, a deposition to perpetuate testimony must not be taken at a place which requires transporting the defendant within a jurisdiction that does not confer upon law enforcement officers of this state the right to transport prisoners within it.
(f) Presence Of Defendant.
(1) At Discovery Deposition. The defendant may be present at the taking of a discovery deposition, but if the defendant is in custody, the defendant may be present only with leave of court.
(2) At Deposition To Perpetuate Testimony. The defendant must be present at the taking of a deposition to perpetuate testimony, but if the defendant's counsel is present at the taking:
(A) the court may excuse the defendant from being present if the defendant appears before the court and understandingly and voluntarily waives the right to be present;
(B) the taking of the deposition may continue if the defendant, present when it commenced, leaves voluntarily; or
(C) if the deposition's taking is presided over by a judicial officer, the judicial officer may direct that the deposition's taking or part of the deposition's taking be conducted in the defendant's absence if the judicial officer has justifiably excluded the defendant because of the defendant's disruptive conduct.
(3) Unexcused Absence. If the defendant is not present at the commencement of the taking of a deposition to perpetuate testimony and the defendant's absence has not been excused:(4) Taking Depositions Outside the United States Without the Defendant's Presence. The deposition of a witness who is outside the United States may be taken without the defendant's presence if the court makes case-specific findings of all the following:
(A) its taking may proceed, in which case the deposition may be used only as a discovery deposition; or
(B) if the deposition is taken at the instance of the prosecution, the prosecuting attorney may direct that the commencement of its taking be postponed until the defendant's attendance can be obtained, and the court, upon application of the prosecuting attorney, by order may direct a law enforcement officer to take the defendant into custody during the taking of the deposition.(A) the witness's testimony could provide substantial proof of a material fact in a felony prosecution;(B) there is a substantial likelihood that the witness's attendance at trial cannot be obtained;(C) the witness's presence for a deposition in the United States cannot be obtained;(D) the defendant cannot be present because:(i) the country where the witness is located will not permit the defendant to attend the deposition;(ii) for an in-custody defendant, secure transportation and continuing custody cannot be assured at the witness's location; or(iii) for an out-of-custody defendant, no reasonable conditions will assure an appearance at the deposition or at trial or sentencing; and(E) the defendant can meaningfully participate in the deposition through reasonable means.
(g) Payment Of Expenses. If the deposition is taken at the instance of the prosecution, the court may, and in all cases where the defendant is unable to bear the expense the court must, direct the state to pay the expense of taking the deposition, including the reasonable expenses of travel and subsistence of defense counsel and, if the deposition is to perpetuate testimony or if the court permits for a discovery deposition, of the defendant in attending the deposition.
(h) Substantive Use On Grounds Of Unavailability. So far as otherwise admissible under the rules of evidence, a deposition to perpetuate testimony may be used as substantive evidence at the trial or upon any hearing if the deponent is unavailable as defined in N.D.R.Ev. 804(a). A discovery deposition may then be so used if the court determines that the use is fair in light of the nature and extent of the total examination at the taking thereof, but it may be offered by the prosecution only if the defendant was present at its taking. If only a part of a deposition is offered in evidence by a party, an adverse party may require the offering of all of it that is relevant to the part offered.
(i) Objections To Admissibility. Objections to receiving in evidence a deposition or part of a deposition may be made as provided in civil actions.
(j) Deposition By Agreement Not Precluded. Nothing in this rule precludes the taking of a deposition, orally or upon written questions, or the use of a deposition, by agreement of the parties.
Rule 15 is substantially the same as Rule 431, Uniform Rules of Criminal Procedure (1974). Former Rule 15, effective until January 1, 1980, was an adaptation of Fed.R.Crim.P. 15. The present rule provides for a greatly expanded use of depositions in criminal cases. Subdivisions (a), (b), (f) and (h) were amended, effective March 1, 1990. The amendments are technical in nature and no substantive change is intended.
Rule 15 was amended, effective March 1, 2006, in response to the December 1, 2002, revision of the Federal Rules of Criminal 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.
Subdivision (a) permits depositions to be taken to perpetuate testimony, as in the former rule, but also for discovery purposes, which was not previously provided for. Rather than requiring court approval of discovery depositions, this subdivision changes the emphasis by allowing them without court approval, subject to the right of a party or deponent to move under paragraph (4) to have a court order that the deposition be continued, not taken, or limited in scope or manner of taking. The court will set a time after which discovery depositions may not be taken without court permission. Leave of court is required for the taking of a deposition to perpetuate testimony.
Subdivision (a) was amended, effective March 1, 1990. The amendment was made to clarify the fact that audio-visual depositions may be taken under the rule. The amendment also provides that the method of taking audio-visual depositions is governed by N.D.R.Civ.P. 30.1.
Subdivision (a) was amended, effective May 1, 2017, to add a new paragraph (a)(5) providing that a victim may refuse to participate in a deposition requested by the defendant or the defendant's attorney. This right is granted by N.D. Const. Art. I, § 25(1)(f). "Victim" is defined in N.D. Const. Art. I, § 25(4).
Subdivision (b) provides a method for securing the attendance of a depondent who would not respond to a subpoena. In addition, to ensure confrontation and the presence of the defendant required by subdivision (f)(2) to use the deposition at trial, the prosecuting attorney may move the court for an order to secure defendant's presence at the taking of a deposition.
Requirements for notice of the taking of a deposition are set forth in subdivision (c). The court may change the noticed time, place, or manner of recording upon motion of the deponent, as well as any party.
Subdivision (d) specifies that a deposition be taken in the same manner as in civil actions, with certain exceptions. Paragraph (1) covers depositions on enclaves over which the State of North Dakota lacks jurisdiction, such as Indian reservations, as well as depositions outside the physical boundaries of the state. Paragraph (2) allows depositions to be recorded by other than stenographic means, without a court order. Provision is made in paragraph (3) for a court to designate an official to preside over a deposition upon a showing of misconduct by a party or the deponent.
The place of taking a deposition is governed by subdivision (e). Restriction is placed on taking depositions outside of this state in situations where the defendant may not travel or be transported to the proposed location, unless the defendant waives the right to be present.
Subdivision (f) concerns the presence of the defendant at a deposition. Distinction is made between a discovery deposition and one to perpetuate testimony. The defendant is not required to be present at a discovery deposition, but the defendant's presence may enable the prosecution to use the deposition as substantive evidence at trial, as provided in subdivision (h). The taking of a deposition to perpetuate testimony necessitates the defendant's presence, with four exceptions: defendant is excused by the court upon an appearance and voluntary waiver of the right to be present; defendant is voluntarily absent after start of deposition; a judicial officer presiding over the deposition justifiably excludes the defendant because of the defendant's disruptive conduct; or the court allows a deposition to be taken outside the United States without the defendant's presence after making case-specific findings. No warning is expressly required before exclusion, as in Rule 43(b)(2). If the defendant is not present at a deposition to perpetuate testimony under one of the above exceptions, the defendant's counsel must be.
Paragraph (3) of subdivision (f) covers the situation when the defendant is not present at the start of a deposition to perpetuate testimony and has not been excused under paragraph (2). The taking may proceed as a discovery deposition or the prosecuting attorney, if the prosecuting attorney is taking the deposition, may postpone the taking and secure a court order to take the defendant into custody to assure the defendant's presence, so that the deposition will have the greater admissibility of a perpetuation deposition.
Paragraph (f)(4) was adopted, effective March 1, 2016, to allow a deposition to be taken outside the United States without the defendant's presence in certain specified circumstances. The provision was based on Fed.R.Crim.P. 15(c)(3).
SOURCES: Joint Procedure Committee Minutes of January 26-27, 2017, pages 7-9; April 23-24, 2015, pages 26-27; January 27-28, 2005, page 12; April 20, 1989, pages 4-5; March 24-25, 1988, pages 6-7; December 3, 1987, pages 9-10 and 15; January 25-26, 1979, pages 5-7; December 7-8, 1978, pages 33-37; October 12-13, 1978, page 3; April 2- 26, 1973, pages 9-10; June 26-27, 1972, page 3;December 11-12, 1968, pages 2-24; September 26-27, 1968, pages 2-6; Rule 431, Uniform Rules of Criminal Procedure (1974).
SUPERSEDED: N.D.C.C. ch. 31-06.
CONSIDERED: N.D. Const. Art. I, § 25; N.D.C.C. ch. 31-04.
CROSS REFERENCE: N.D.R.Crim.P. 17 (Subpoena); N.D.R.Crim.P. 43 (Defendant's Presence); N.D.R.Civ.P. 30.1 (Uniform Audio-Visual Deposition Rule); N.D.R.Ev. 804 (Hearsay Exceptions; Declarant Unavailable).