Amendments to rules on trial court procedure now in effect Tuesday, March 1, 2022
The Supreme Court has made amendments to the Rules of Civil Procedure, Criminal Procedure, Evidence and the Administrative Rules. The amendments took effect March 1.
Civil Procedure Rule 30 on depositions was amended to require a party serving a deposition notice or subpoena on an organization to promptly contact the subject organization to confer about who will be designated to testify. The amendments are based on those made to the federal rule in December 2020. The amended language is intended to encourage a candid exchange among the parties about the purpose of the deposition so that the appropriate witness can be identified to testify.
Several criminal procedure rules were amended. Rule 11 on pleas, Rule 12 on pleadings and pretrial motions and Rule 31 on jury verdicts were amended to supersede N.D.C.C. §§ 29-16-01, 29-21-16, and 29-22-33. N.D. Const. Art. VI, § 3, gives the Court power to promulgate procedural rules that take precedence over procedural laws made by the legislature. The superseded statutes referred to the outmoded plea of “once in jeopardy.” Rules 11, 12 and 31 have long contained language indicating that “once in jeopardy” is not a plea recognized under the Rules of Criminal Procedure.
The Court’s superseding of these statutes does not change a defendant’s substantive right to claim a double jeopardy defense as allowed by N.D. Const. Art. I, § 12, and N.D.C.C. § 29-01-07. The procedure for raising this defense, however, is not by a plea but as an affirmative defense as noted in Rule 31(e)(2).
Meanwhile, Rule 12.2 on notice of mental condition defense was amended to update obsolete statutory references in the explanatory note.
Rule 15 on depositions was amended to allow an in-state deposition in a criminal case to be taken at a location agreed upon by the parties or designated by the court. The amendment was intended to eliminate any perceived requirement that a criminal deposition be held at the place where the trial will be conducted if the parties can’t agree about an alternate location.
Rule 24 on trial jurors was amended to require that a court find on the record an overriding interest for courtroom closure before allowing an individual examination of a prospective juror in chambers or a closed courtroom. The amendments are intended to be consistent with the requirements for courtroom closure set out by the U.S. Supreme Court in Waller v. Georgia, 467 U.S. 39 (1984). The rule’s language allowing private individual examination of prospective jurors has been retained, but now application of the Waller factors is required before such examination can take place.
Amendments to two rules of evidence were made based on federal rule changes. Rule 404 on character evidence was amended to impose additional notice requirements when the prosecution in a criminal case seeks to present evidence of other crimes, wrongs, or acts. Rule 807 on the residual exception was amended to clarify the standards for admission of evidence under the exception.
Finally, Administrative Rule 52 on reliable electronic means proceedings was amended to clarify the extent of the rule’s limitation on remote witness testimony when a criminal defendant objects. The amendment to Rule 52 specifies that this limitation applies only at trial, which is consistent with state case law holding that the right to confrontation is a trial right. See State v. Woinarowicz, 2006 ND 179.