Unless otherwise permitted by the court, a party intending to raise an issue concerning law foreign to this state must provide the court and all parties written notice at least 14 days prior to the hearing or trial. If an opposing party does not reply within seven days after receiving the notice, the court may determine the foreign law to be as recited in the notice. Issues of foreign law are questions of law, but in deciding such issues the court may consider any relevant material or source, including testimony, without regard to the North Dakota Rules of Evidence.
Rule 26.1 is intended to furnish the courts with a uniform and effective procedure for raising or determining an issue concerned with the law of a neighboring state. Rule 26.1 is designed to give advance notice to opposing parties, prior to trial, of any reliance upon the law of another state, in order to avoid the necessity of an adjournment while the opposing attorney is granted time to verify the foreign law. Rule 26.1 would thus speed up those criminal cases where the settlement of an issue of foreign law is necessary for the resolution of the case.
A 14-day requirement for advance notice of foreign law is established and has been couched in terms which leave the provision for such notice to the discretion of the court. To achieve this result, the language "unless otherwise permitted by the court" is included. This language provides the court with discretion in shortening the period if advisable or lengthening it in those situations where the law of a foreign state is difficult to ascertain.
Rule 26.1 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.
Rule 26.1 was amended, effective March 1, 2011, to change the 10-day requirement for advance notice to 14 days, and to increase the time for an opposing party to reply from 5 to 7 days after receiving notice.
SOURCES: Joint Procedure Committee Minutes of April 29-30, 2010, page 20; January 27-28, 2005, page 22; April 24-26, 1973, pages 11-12; October 17-20, 1972, pages 29-30; November 18-20, 1971, pages 10-12 and 18-19; May 6-7, 1971, pages 13-15; Fed.R.Crim.P. 26.1.
CONSIDERED: N.D.C.C. §§ 31-09-01, 31-09-02, 31-09-04, 31-09-10, 31-10-02, 31-10-03, 31-10-04, 31-10-05.
CROSS REFERENCE: N.D.R.Civ.P. 44.1 (Determination of Foreign Law).