Joint Procedure Committee Meeting
Scheduled on Thursday, January 29, 1976 @ 1:30 PM
MINUTES OF MEETING
Joint Committee of the Judicial Council
and the State Bar Association
Special Procedure Committee
January 29-30, 1976
The meeting was called to order at 1:30 p.m., January 29, 1976, by Justice Paul M. Sand, Chairman.
ATTENDANCE:
Members Present:
Honorable Eugene A. Burdick
Honorable Gerald G. Glaser
Honorable William F. Hodny
Honorable R. C. Heinley
Honorable Kirk Smith
Mr. Calvin N. Rolfson
Mr. John Shaft
Mr. Harry Pearce
Honorable Robert Vogel
Honorable Paul M. Sand
Staff Present:
Duane Houdek
Eveleen Klaudt
Also Present:
Christine Hogan (Law Clerk)
Discussion was had relative to Article V, on privileges, whether the subject matter of that Article was within the proper scope of this committee's activities, or whether it was a legislative concern. It was the consensus of the committee that the rules in Article V should be studied by the committee and that the decision to submit them either to the Legislature or to the Supreme Court could be made at a later time.
ARTICLE V - Privileges
Judge Burdick, who had been assigned Article V, read each Rule prior to its consideration, his analysis of each rule, and led the discussion.
Judge Hodny MOVED that § 31-01-03, NDCC, and any other sections relating specifically to the "dead man's statutes" be superseded by the Supreme Court or recommended to the Legislature for repeal. The motion was seconded by Justice Vogel. Motion CARRIED.
Judge Burdick suggested that § 31-01-06.1, relating to privilege of school counselors, should not be disturbed, and the committee agreed.
-2-
Judge Burdick suggested that § 31-01-06.2, NDCC, relating to newsmen's privilege, should not be disturbed, and the committee agreed.
Judge Burdick read § 31-01-08, NDCC, relating to perjury. Judge Hodny MOVED that § 31-01-08 be superseded by the Supreme Court or recommended to the Legislature for repeal. The motion was seconded by Mr. Rolfson. Motion CARRIED.
Judge Burdick read § 31-08-07, NDCC, relating to admission in evidence of statements taken by insurance adjusters. Judge Burdick MOVED that § 31-08-07, NDCC, be superseded by the Supreme Court or recommended to the Legislature for repeal. The motion was seconded by Mr. Pearce. Motion CARRIED.
Judge Burdick recommended that § 27-20-29(4), NDCC, relating to juvenile delinquency hearings, be retained, and the committee agreed.
Judge Hodny MOVED that § 31-01-01, NDCC, relating to persons competent to testify as witnesses, be superseded by the Supreme Court or recommended to the Legislature for repeal. The motion was seconded by Mr. Rolfson. Motion CARRIED.
Judge Smith MOVED that § 14-02-05, NDCC, relating to privileged communications, be noted as having been considered and retained. The motion was seconded by Judge Hodny. Motion CARRIED.
Judge Burdick moved the adoption of Rule 501.
RULE 501. Privileges Recognized Only as Provided.
Except as otherwise provided by constitution or statute or by these or other rules promulgated by the Supreme Court of this State, no person has a privilege to:
(1) refuse to be a witness;
(2) refuse to disclose any matter;
(3) refuse to produce any object or writing; or
(4) prevent another from being a witness or disclosing any matter or producing any object or writing
The motion was seconded by Justice Vogel. Motion CARRIED.
RULE 502
Mr. Rolfson MOVED that Rule 502 be amended as follows:
In line 8 place quotation marks around the phrase "representative of the client"; and in line 64 place a semicolon after the word "clients".
The motion was seconded by Judge Glaser.
Mr. Rolfson MOVED to amend Rule 502 by deleting subdivision (6), lines 65 through 71. The motion was seconded by Judge Glaser.
-3-
Mr. Rolfson, with the consent of Judge Glaser, withdrew his motion to amend Rule 502.
The question was on the motion of Mr. Rolfson to amend Rule 502. Motion CARRIED.
Judge Burdick MOVED to adopt Rule 502, as amended.
RULE 502. Lawyer-Client Privilege.
(a) Definitions. As used in this rule:
(1) A "client" is a person, public officer, or corporation, association, or other organization or entity, either public or private, who is rendered professional legal services by a lawyer, or who consults a lawyer with a view to obtaining professional legal services from him.
(2) A "representative of the client" is one having authority to obtain professional legal services, or to act on advice rendered pursuant thereto, on behalf of the client.
(3) A "lawyer" is a person authorized, or reasonably believed by the client to be authorized, to engage in the practice of law in any state or nation.
(4) A "representative of the lawyer" is one employed by the lawyer to assist the lawyer in the rendition of professional legal services.
(5) A communication is "confidential" if not intended to be disclosed to third persons other than those to whom disclosure is made in furtherance of the rendition of professional legal services to the client or those reasonably necessary for the transmission of the communication.
(b) General rule of privilege. A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client (1) between himself or his representative and his lawyer or his lawyer's representative, (2) between his lawyer and the lawyer's representative, (3) by him or his representative or his lawyer or a representative of the lawyer to a lawyer or a representative of a lawyer representing another party in a pending action and concerning a matter of common interest therein, (4) between representatives of the client or between the client and a representative of the client, or (5) among lawyers and their representatives representing the same client.
-4-
(c) Who may claim the privilege. The privilege may be claimed by the client, his guardian or conservator, the personal representative of a deceased client, or the successor, trustee, or similar representative of a corporation, association, or other organization, whether or not in existence. The person who was the lawyer or the lawyer's representative at the time of the communication is presumed to have authority to claim the privilege but only on behalf of the client.
(d) Exceptions. There is no privilege under this rule:
(1) Furtherance of crime or fraud. If the services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud;
(2) Claimants through same deceased client. As to a communication relevant to an issue between parties who claim through the same deceased client, regardless of whether the claims are by testate or intestate succession or by inter vivos transaction;
(3) Breach of duty by a lawyer or client. As to a communication relevant to an issue of breach of duty by the lawyer to his client or by the client to his lawyer;
(4) Document attested by a lawyer. As to a communication relevant to an issue concerning an attested document to which the lawyer is an attesting witness;
(5) Joint clients. As to a communication relevant to a matter of common interest between or among two or more clients if the communication was made by any of them to a lawyer retained or consulted in common, when offered in an action between or among any of the clients; or
(6) Public officer or agency. As to a communication between a public officer or agency and its lawyers unless the communication concerns a pending investigation, claim, or action and the court determines that disclosure will seriously impair the ability of the public officer or agency to process the claim or conduct a pending investigation, litigation, or proceeding in the public interest.
The motion was seconded by Judge Glaser. Motion CARRIED.
-5-
RULE 503
Judge Burdick MOVED that Rule 503 be amended as follows:
In line 27 of the typewritten Rule insert a comma after the word "mental";
In line 28 after the word "himself," add the word "his";
In line 43, after the word "illness," add the words "including alcohol or drug addiction,".
The motion was seconded by Judge Smith. Motion CARRIED.
Judge Burdick MOVED that Rule 503, as amended, be adopted,
RULE 503. Physician and Psychotherapist-Patient Privilege.
(a) Definitions. As used in this rule:
(1) A "patient" is a person who consults or is examined or interviewed by a physician or psychotherapist.
(2) A "physician" is a person authorized to practice medicine in any state or nation, or reasonably believed by the patient so to be.
(3) A "psychotherapist" is (i) a person authorized to practice medicine in any state or nation, or reasonably believed by the patient so to be, while engaged in the diagnosis or treatment of a mental or emotional condition, including alcohol or drug addiction, or, (ii) a person licensed or certified as a psychologist under the laws of any state or nation, while similarly engaged.
(4) A communication is "confidential" if not intended to be disclosed to third persons, except persons present to further the interest of the patient in the consultation, examination, or interview, persons reasonably necessary for the transmission of the communication, or persons who are participating in the diagnosis and treatment under the direction of the physician or psychotherapist, including members of the patient's family.
(b) General rule of privilege. A patient has a privilege to refuse to disclose and to prevent any other
-6-
person from disclosing confidential communications made for the purpose of diagnosis or treatment of his physical, mental, or emotional condition, including alcohol or drug addiction, among himself, his physician or psychotherapist, and persons who are participating in the diagnosis or treatment under the direction of the physician or psychotherapist, including members of the patient's family.
(c) Who may claim the privilege. The privilege may be claimed by the patient, his guardian or conservator, or the personal representative of a deceased patient. The person who was the physician or psychotherapist at the time of the communication is presumed to have authority to claim the privilege but only on behalf of the patient.
(d) Exceptions.
(1) Proceedings for hospitalization. There is no privilege under this rule for communications relevant to an issue in proceedings to hospitalize the patient for mental illness, including alcohol or drug addiction, if the psychotherapist in the course of diagnosis or treatment has determined that the patient is in need of hospitalization.
(2) Examination by order of court. If the court orders an examination of the physical, mental, or emotional condition of a patient, whether a party or a witness, communications made in the course thereof are not privileged under this rule with respect to the particular purpose for which the examination is ordered unless the court orders otherwise.
(3) Condition an element of claim or defense. There is no privilege under this rule as to a communication relevant to an issue of the physical, mental, or emotional condition of the patient in any proceeding in which he relies upon the condition as an element of his claim or defense or, after the patient's death, in any proceeding in which any party relies upon the condition as an element of his claim or defense.
The motion was seconded by Mr. Rolfson. Motion CARRIED.
Judge Burdick MOVED that § 31-01-06(3), NDCC, relating to the physician privilege, be superseded by the Supreme Court or recommended to the Legislature for repeal. Mr. Rolfson seconded the motion. Motion CARRIED.
RULE 504
Judge Burdick MOVED that Rule 504 be adopted,
-7-
RULE 504. Husband-Wife Privilege.
(a) Definition. A communication is confidential if it is made privately by any person to his or her spouse and is not intended for disclosure to any other person.
(b) General rule of privilege. An accused in a criminal proceeding has a privilege to prevent his spouse from testifying as to any confidential communication between the accused and the spouse.
(c) Who may claim the privilege. The privilege may be claimed by the accused or by the spouse on behalf of the accused. The authority of the spouse to do so is presumed.
(d) Exceptions. There is no privilege under this rule in a proceeding in which one spouse is charged with a crime against the person or property of (1) the other, (2) a child of either, (3) a person residing in the household of either, or (4) a third person committed in the course of committing a crime against any of them.
The motion was seconded by Judge Hodny. Motion CARRIED.
Judge Burdick MOVED that § 31-01-02, NDCC, relating to the husband-wife privilege, be superseded by the Supreme Court or recommended to the Legislature for repeal. Judge Hodny seconded the motion. Motion CARRIED.
RULE 505
Judge Burdick MOVED that Rule 505 be adopted,
RULE 505. Religious Privilege.
(a) Definitions. As used in this rule:
(1) A "clergyman" is a minister, priest, rabbi, accredited Christian Science practitioner, or other similar functionary of a religious organization, or an individual reasonably believed so to be by the person consulting him.
(2) A communication is "confidential" if made privately and not intended for further disclosure except to other persons present in furtherance of the purpose of the communication.
(b) General rule of privilege. A person has a privilege to refuse to disclose and to prevent another from disclosing a confidential communication by the person to a clergyman in his professional character as spiritual adviser.
-8-
(c) Who may claim the privilege. The privilege may be claimed by the person, by his guardian or conservator, or by his personal representative if he is deceased. The person who was the clergyman at the time of the communication is presumed to have authority to claim the privilege but only on behalf of the communicant.
and that § 31-01-06(2), NDCC, relating to the religious privilege, be superseded by the Supreme Court or recommended to the Legislature for repeal. Justice Vogel seconded the motion. Motion CARRIED.
RULE 506
Judge Burdick MOVED that Rule 506 be amended as follows:
In line 6 add a period after the word "illegally", and delete the remainder of that line, and lines 7 and 8,
and, when so amended, be adopted,
RULE 506. Political Vote.
(a) General rule of privilege. Every person has a privilege to refuse to disclose the tenor of his vote at a political election conducted by secret ballot.
(b) Exceptions. This privilege does not apply if the court finds that the vote was cast illegally. (((or determines that the disclosure should be compelled pursuant to the election laws of the state.)))
The motion was seconded by Judge Glaser. Motion CARRIED.
The Committee adjourned to 9:00 a.m. on January 30, 1976.
The meeting was called to order at 9:00 a.m. January 30, 1976, by Justice Paul Sand, Chairman.
The same persons were in attendance as at the previous meeting on January 29, 1976.
RULE 507
Judge Burdick MOVED that Rule 507 be adopted,
RULE 507. Trade Secrets.
A person has a privilege, which may be claimed by him or his agent or employee, to refuse to disclose and to
-9-
prevent other persons from disclosing a trade secret owned by him, if the allowance of the privilege will not tend to conceal fraud or otherwise work injustice. If disclosure is directed, the court shall take such protective measures as the interest of the holder of the privilege and of the parties and the interests of justice require.
The motion was seconded by Mr. Rolfson. Motion CARRIED.
RULE 508
Judge Burdick suggested that on Rule 508 we should have a well-written comment on those cases in which the government is a party and those on which the government is not a party.
Judge Burdick MOVED the adoption of Rule 508,
RULE 508. Secrets of State and Other official
Information; Governmental Privileges.
(a) If the law of the United States creates a governmental privilege that the courts of this State must recognize under the Constitution of the United States, the privilege may be claimed as provided by the law of the United States.
(b) No other governmental privilege is recognized except as created by the Constitution or statutes of this State.
(c) Effect of sustaining claim. If a claim of governmental privilege is sustained and it appears that a party is thereby deprived of material evidence, the court shall make any further orders the interests of justice require, including striking the testimony of a witness, declaring a mistrial, finding upon an issue as to which the evidence is relevant, or dismissing the action.
Judge Hodny seconded the motion. Motion CARRIED.
RULE 509
Judge Burdick MOVED that Rule 509 be amended as follows:
On line 35 strike the words "requiring the prosecuting attorney to comply,"
Add subsection (3) of Rule 510, Federal Rules of Evidence, Deleted and Superseded Materials,
adopt Rule 509, as amended,
-10-
RULE 509. Identity of Informer.
(a) Rule of Privilege. The United States or a state or subdivision thereof has a privilege to refuse to disclose the identity of a person who has furnished information relating to or assisting in an investigation of a possible violation of a law to a law enforcement officer or member of a legislative committee or its staff conducting an investigation.
(b) Who may claim. The privilege may be claimed by an appropriate representative of the public entity to which the information was furnished.
(c) Exceptions:
(1) Voluntary disclosure; informer a witness. No privilege exists under this rule if the identity of the informer or his interest in the subject matter of his communication has been disclosed to those who would have cause to resent the communication by a holder of the privilege or by the informer's own action, or if the informer appears as a witness for the government.
(2) Testimony on relevant issue. If it appears in the case that an informer may be able to give testimony relevant to any issue in a criminal case or to a fair determination of a material issue on the merits in a civil case to which a public entity is a party, and the informed public entity invokes the privilege, the court shall give the public entity an opportunity to show in camera facts relevant to determining whether the informer can, in fact, supply that testimony. The showing will ordinarily be in the form of affidavits, but the court may direct that testimony be taken if it finds that the matter cannot be resolved satisfactorily upon affidavit. If the court finds there is a reasonable probability that the informer can give the testimony, and the public entity elects not to disclose his identity, in criminal cases the court on motion of the defendant or on its own motion shall grant appropriate relief, which may include one or more of the following: (((requiring the prosecuting attorney to comply,))) granting the defendant additional time or a continuance, relieving the defendant from making disclosures otherwise required of him, prohibiting the prosecuting attorney from introducing specified evidence, and dismissing charges. In civil cases, the court may make any order the interests of justice require. Evidence submitted to the court shall be sealed and preserved to be made available to the appellate court in the event of an appeal, and the contents shall not otherwise
-11-
be revealed without consent of the informed public entity. All counsel and parties are permitted to be present at every stage of proceedings under this subdivision except a showing in camera at which no counsel or party shall be permitted to be present.
(3) Legality of obtaining evidence. If information from an informer is relied upon to establish the legality of the means by which evidence was obtained and the judge is not satisfied that the information was received from an informer reasonably believed to be reliable or credible, he may require the identity of the informer to be disclosed. The judge shall, on request of the government, direct that the disclosure be made in camera. All counsel and parties concerned with the issue of legality shall be permitted to be present at every stage of proceedings under this subdivision except a disclosure in camera, at which no counsel or party shall be permitted to be present. If disclosure of the identity of the informer is made in camera, the record thereof shall be sealed and preserved to be made available to the appellate court in the event of an appeal, and the contents shall not otherwise be revealed without consent of the government.
and that the comments to this Rule should contain a clear explanation that in camera proceedings are of a highly confidential nature and are "for the eyes of the judge alone." Mr. Rolfson seconded the motion. Motion CARRIED.
RULE 510
Judge Burdick moved that Rule 510 be amended as follows:
In line 2 delete the words "these rules confer";
In line 3 after the word "disclosure" add the words "is conferred by rule or by law".
and adopt Rule 510, as amended,
RULE 510. Waiver of Privilege by Voluntary Disclosure.
A person upon whom (((these rules confer))) a privilege against disclosure is conferred by rule or by law waives the privilege if he or his predecessor while holder of the privilege voluntarily discloses or consents to disclosure of any significant part of the privileged matter. This rule does not apply if the disclosure itself is privileged.
The motion was seconded by Judge Smith. Motion CARRIED.
-12-
RULE 511
Judge Burdick MOVED the adoption of Rule 511,
RULE 511. Privileged Matter Disclosed Under
Compulsion or Without Opportunity to Claim Privilege.
A claim of privilege is not defeated by a disclosure which was (1) compelled erroneously or (2) made without opportunity to claim the privilege.
Justice Vogel seconded the motion. Motion CARRIED.
RULE 512
In connection with Rule 512, Judge Burdick read North Dakota Jury Instructions Nos. 1012 and 1309, and they were discussed.
Judge Burdick MOVED the adoption of Rule 512,
RULE 512. Comment Upon or Inference from Claim
of Privilege; Instruction.
(a) Comment or inference not permitted. The claim of a privilege, whether in the present proceeding or upon a prior occasion, is not a proper subject of comment by judge or counsel. No inference may be drawn therefrom.
(b) Claiming privilege without knowledge of jury. In jury cases, proceedings shall be conducted, to the extent practicable, so as to facilitate the making of claims of privilege without the knowledge of the jury.
(c) Jury instruction. Upon request, any party against whom the jury might draw an adverse inference from a claim of privilege is entitled to an instruction that no inference may be drawn therefrom.
Judge Hodny seconded the motion. Motion CARRIED.
It was recommended that the explanatory notes reflect that § 29-21-11, NDCC, was considered.
ARTICLE VI - Witnesses
RULE 605
Judge Burdick MOVED that Rule 605 be adopted,
RULE 605. Competency of Judge as Witness.
The judge presiding at the trial may not testify in that trial as a witness. No objection need be made in order to preserve the point.
-13-
RULE 606
Judge Burdick MOVED that Rule 606 be adopted, with subsection (b) to read as on page 4 of the Minutes of the October 1-2, 1975, meeting, with the further amendment that
the word "what" in the third line from the bottom be changed to "which,"
RULE 606. Competency of Juror as Witness.
(a) At the trial. A member of the jury may not testify as a witness before that jury in the trial of the case in which he is sitting as a juror. If he is called so to testify, the opposing party shall be afforded an opportunity to object out of the presence of the jury.
(b) Inquiry into validity of verdict or indictment. Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon his or any other juror's mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith, but a juror may testify on the questions whether extraneous prejudicial information was improperly brought to the jury's attention, whether any outside influence was improperly brought to bear upon any juror, or whether the verdict of the jury was arrived at by chance. Nor may his affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying be received for these purposes.
and that § 31-01-10, NDCC, be superseded by the Supreme Court or recommended to the Legislature for repeal. The motion was seconded by Justice Vogel. Motion CARRIED.
ARTICLE X - Contents of Writings, Recordings, and Photographs
Judge Glaser read each Rule prior to its consideration, and many of the commentaries, and led the discussion.
RULE 1001
Judge Glaser MOVED the adoption of Rule 1001, with the addition of the word "sounds" after the word "words" on line 5. Judge Burdick seconded the motion.
Judge Burdick MOVED a substitute motion to amend subsection (1) of RULE 1001 to read:
Add the words "or other verbal communication" after the word "equivalent" in line 6.
-14-
This motion FAILED for lack of a second.
Mr. Pearce MOVED to adopt Rule 1001 as it appears in the draft,
RULE 1001. Definitions.
For purposes of this Article the following definitions are applicable:
(1) Writings and recordings. "Writing" and "recordings" consist of letters, words, or numbers, or their equivalent, set down by handwriting, typewriting, printing, photostating, photographing, magnetic impulse, mechanical or electronic recording, or other form of data compilation.
(2). Photographs. "Photographs" include still photographs, X-ray films, video tapes, and motion pictures.
(3) Original. An "original" of a writing or recording is the writing or recording itself or any counterpart intended to have the same effect by a person executing or issuing it. An "original" of a photograph includes the negative or any print therefrom. If data are stored in a computer or similar device, any printout or other output readable by sight, shown to reflect the data accurately, is an "original."
(4) Duplicate. A "duplicate" is a counterpart produced by the same impression as the original, or from the same matrix, or by means of photography, including enlargements and miniatures, or by mechanical or electronic rerecording, or by chemical reproduction, or by other equivalent techniques which accurately reproduce the original.
The motion was seconded by Judge Heinley. Motion CARRIED.
RULE 1002
Judge Heinley MOVED to adopt Rule 1002,
RULE 1002. Requirement of Original.
To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided by these rules, by other rules adopted by the North Dakota Supreme Court, or by statute.
-15-
Judge Burdick seconded the motion. Motion CARRIED.
RULE 1003
Judge Burdick MOVED that Rule 1003 be amended as follows:
In line 4 after the word "authenticity" add the words "or continuing effectiveness",
and when so amended that Rule 1003 be adopted,
RULE 1003. Admissibility of Duplicates.
A duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to the authenticity or continuing effectiveness of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original.
The motion was seconded by Judge Glaser. Motion CARRIED.
RULE 1004
Mr. Rolfson MOVED the adoption of Rule 1004,
RULE 1004. Admissibility of Other Evidence of Contents.
The original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible if:
(1) Originals lost or destroyed. All originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith;
(2) Original not obtainable. No original can be obtained by any available judicial process or procedure;
(3) original in possession of opponent. At a time when an original was under the control of the party against whom offered, he was put on notice, by the pleadings or otherwise, that the contents would be a subject of proof at the hearing, and he does not produce the original at the hearing; or
(4) Collateral matters. The writing, recording, or photograph is not closely related to a controlling issue.
-16-
The motion was seconded by Judge Hodny. Motion CARRIED.
RULE 1005
Judge Burdick MOVED that Rule 1005 be amended as follows:
In line 8 delete the words "which complies" and insert the word "complying"
and when so amended that Rule 1005 be adopted,
RULE 1005. Public Records.
The contents of an official record, or of a document authorized to be recorded or filed and actually recorded or filed, including data compilations in any form, if otherwise admissible, may be proved by copy, certified as correct in accordance with Rule 902 or testified to be correct by a witness who has compared it with the original. If a copy (((which complies))) complying with the foregoing cannot be obtained by the exercise of reasonable diligence, then other evidence of the contents may be given.
The motion was seconded by Judge Glaser. Motion CARRIED.
RULE 1006
Judge Burdick MOVED to adopt Rule 1006,
RULE 1006. Summaries.
The contents of voluminous writings, recordings, or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation. The originals, or duplicates, shall be made available for examination or copying, or both, by other parties at a reasonable time and place. The court may order that they be produced in court.
Rolfson seconded the motion. Motion CARRIED.
RULE 1007
Judge Glaser MOVED that Rule 1007 be amended as follows:
In line 2 delete the word "records" and insert the word "recordings"
and when so amended that Rule 1007 be adopted,
-17-
RULE 1007. Testimony or Written Admission of Party.
Contents of writings, (((records))) recordings, or photographs may be proved by the testimony or deposition of the party against whom offered or by his written admission, without accounting for the nonproduction of the original.
Judge Burdick seconded the motion. Motion CARRIED.
RULE 1008
Judge Burdick moved that Rule 1008 be adopted,
RULE 1008. Functions of Court and Jury.
Whenever the admissibility of other evidence of contents of writings, recordings, or photographs under these rules depends upon the fulfillment of a condition of fact, the question whether the condition has been fulfilled is ordinarily for the court to determine in accordance with the provisions of Rule 104. However, when an issue is raised whether (1) the asserted writing ever existed, (2) another writing, recording, or photograph produced at the trial is the original, or (3) other evidence of contents correctly reflects the contents, the issue is for the trier of fact to determine as in the case of other issues of fact.
and that the commentary include a statement that Items (1), (2), and (3) are not to be exclusive, but merely illustrative of the Rule. Judge Hodny seconded the motion. Motion CARRIED.
ARTICLE VIII - Hearsay
Article VIII had been assigned to Justice Vogel. He read each Rule as it was considered, and led the discussion.
Justice Vogel MOVED the adoption of Rule 801 as in the Federal Rules of Evidence. Mr. Rolfson seconded the motion.
Judge Burdick made a substitute motion that Rule 801 of the Uniform Rules of Evidence be amended, as follows:
On lines 17, 18, and 19 delete the words "was given under oath and subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition".
Mr. Rolfson seconded the motion. Motion LOST.
Judge Burdick moved to amend Rule 801 as follows:
In line 16 change the word "and" to "but"
-18-
and when so amended to adopt Rule 801,
RULE 801. Definitions.
The following definitions apply under this Article:
(a) Statement. A "statement" is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by him as an assertion.
(b) Declarant. A "declarant" is a person who makes a statement.
(c) Hearsay. "Hearsay" is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.
(d) Statements which are not hearsay. A statement is not hearsay if:
(1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is (i) inconsistent with his testimony (((and))) but, if offered in a criminal proceeding, was given under oath and subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition, or (ii) consistent with his testimony and is offered to rebut an express or implied charge against him of recent fabrication or improper influence or motive, or
(2) Admission by party-opponent. The statement is offered against a party and is (i) his own statement, in either his individual or a representative capacity, (ii) a statement of which he has manifested his adoption or belief in its truth, (iii) a statement by a person authorized by him to make a statement concerning the subject, (iv) a statement by his agent or servant concerning a matter within the scope of his agency or employment, made during the existence of the relationship, or (v) a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy.
Mr. Rolfson seconded the motion. Motion CARRIED.
-19-
RULE 802
Justice Vogel MOVED to adopt Rule 802 as in the Federal Rules of Evidence, with the amendments suggested on page 7 of the Minutes of this Committee of October 1-2, 1975,
RULE 802. Hearsay Rule.
Hearsay is not admissible except as provided by these rules, by other rules adopted by the North Dakota Supreme Court, or by statute.
Judge Burdick seconded the motion. Motion CARRIED.
RULE 803
Justice Vogel MOVED to adopt Rule 803 (1), (2), (3), (4), and (5), as read from the Federal Rules of Evidence,
RULE 803. Hearsay Exceptions; Availability
of Declarant Immaterial.
The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
(1) Present sense impression. A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.
(2) Excited utterance. A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.
(3) Then existing mental, emotional, or physical condition. A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will.
(4) Statements for purposes of medical diagnosis or treatment. Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the
-20-
cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.
(5) Recorded recollection. A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable him to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in his memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.
Judge Burdick seconded the motion. Motion CARRIED.
Justice Vogel MOVED to adopt Rules 803 (6) and (7), as in the Uniform Rules of Evidence,
(6) Records of regularly conducted business activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term "business" as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.
(7) Absence of entry in records kept in accordance with the provisions of paragraph (6). Evidence that a matter is not included in the memoranda, reports, records, or data compilations, in any form, kept in accordance with the provisions of paragraph (6), to prove the nonoccurrence or nonexistence of the matter, if the matter was of a kind of which a memorandum, report, record, or data compilation was regularly made and preserved, unless the sources of information or other circumstances indicate lack of trustworthiness.
-21-
Judge Burdick seconded the motion. Motion CARRIED.
Judge Burdick moved to adopt Rule 803(8), as in the Uniform Rules of Evidence. Mr. Rolfson seconded the motion. Motion LOST.
Justice Vogel moved to adopt Rule 803(8), as in the Federal Rules of Evidence,
(8) Public records and reports. Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (A) the activities of the office or agency, or (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel, or (C) in civil actions and proceedings and against the Government in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness.
Mr. Pearce seconded the motion. Motion CARRIED.
Judge Burdick MOVED to adopt Rule 803 (9), (10), (11), (12), (13), (14), (15), (16), (17), (18), (19), (20), and (21), as in the Federal Rules of Evidence.
(9) Records of vital statistics. Records or data compilations, in any form, of births, fetal deaths, deaths, or marriages, if the report thereof was made to a public office pursuant to requirements of law.
(10) Absence of public record or entry. To prove the absence of a record, report, statement, or data compilation, in any form, or the nonoccurrence or nonexistence of a matter of which a record, report, statement, or data compilation, in any form, was regularly made and preserved by a public
-22-
office or agency, evidence in the form of a certification in accordance with rule 902, or testimony, that diligent search failed to disclose the record, report, statement, or data compilation, or entry.
(11) Records of religious organizations. Statements of births, marriages, divorces, deaths, legitimacy, ancestry, relationship by blood or marriage, or other similar facts of personal or family history, contained in a regularly kept record of a religious organization.
(12) Marriage, baptismal, and similar certificates. Statements of fact contained in a certificate that the maker performed a marriage or other ceremony or administered a sacrament, made by a clergyman, public official, or other person authorized by the rules or practices of a religious organization or by law to perform the act certified, and purporting to have been issued at the time of the act or within a reasonable time thereafter.
(13) Family records. Statements of fact concerning personal or family history contained in family Bibles, genealogies, charts, engravings on rings, inscriptions on family portraits, engravings on urns, crypts, or tombstones, or the like.
(14) Records of documents affecting an interest in property. The record of a document purporting to establish or affect an interest in property, as proof of the content of the original recorded document and its execution and delivery by each person by whom it purports to have been executed, if the record is a record of a public office and an applicable statute authorizes the recording of documents of that kind in that office.
(15) Statements in documents affecting an interest in property. A statement contained in a document purporting to establish or affect an interest in property if the matter stated was relevant to the purpose of the document, unless dealings with the property since the document was made have been inconsistent with the truth of the statement or the purport of the document.
-23-
(16) Statements in ancient documents. Statements in a document in existence twenty years or more the authenticity of which is established.
(17) Market reports, commercial publications. Market quotations, tabulations, lists, directories, or other published compilations, generally used and relied upon by the public or by persons in particular occupations.
(18) Learned treatises. To the extent called to the attention of an expert witness upon cross-examination or relied upon by him in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits.
(19) Reputation concerning personal or family history. Reputation among members of his family by blood, adoption, or marriage, or among his associates, or in the community, concerning a person's birth, adoption, marriage, divorce, death, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact of his personal or family history.
(20) Reputation concerning boundaries or general history. Reputation in a community, arising before the controversy, as to boundaries of or customs affecting lands in the community, and reputation as to events of general history important to the community or State or nation in which located.
(21) Reputation as to character. Reputation of a person's character among his associates or in the community.
Mr. Pearce seconded the motion. Motion CARRIED.
Justice Vogel MOVED to amend the State Bar Association version of Rule 803 (22), as follows:
Substitute the word "prosecution" for "Government";
After the word "appeal" add the words "or post-conviction proceeding"; Strike "(but not upon a plea of nolo contendere)"
-24-
and, when so amended, to adopt Rule 803(22),
(22) Judgment of previous conviction. Evidence of a final judgment, entered after a trial or upon a plea of guilty ((((but not upon a plea of nolo contendere)))), adjudging a person guilty of a felony, to prove any fact essential to sustain the judgment, but not including, when offered by the (((Government))) prosecution in a criminal prosecution for purposes other than impeachment, judgments against persons other than the accused. The pendency of an appeal or post-conviction proceeding may be shown but does not affect admissibility.
and a cross-reference to Rule 609 should be shown in the explanatory notes. Mr. Rolfson seconded the motion. Motion CARRIED.
Justice Vogel MOVED the adoption of Rule 803(23),
(23) Judgment as to personal, family, or general history, or boundaries. Judgments as proof of matters of personal, family or general history, or boundaries, essential to the judgment, if the same would be provable by evidence of reputation.
Mr. Rolfson seconded the motion. Motion CARRIED.
Mr. Rolfson MOVED the adoption of Rule 803(24),
(24) Other exceptions. A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, his intention to offer the statement and the particulars of it, including the name and address of the declarant.
-25-
The motion was seconded by Judge Burdick. Motion CARRIED.
NEXT MEETING DATE
Justice Sand suggested that at the next meeting we finish Article VIII, and then put all the Rules on the agenda, commencing with Article I.
The next meeting of the Special Procedure Committee will be Thursday, March 25, 1976, at 1:30 p.m., and will continue through Friday, March 26.
Meeting adjourned.
__________________________
Secretary