Joint Procedure Committee Meeting
Scheduled on Thursday, June 3, 1976 @ 2:30 PM
MINUTES OF MEETING
Joint Committee of the Judicial Council
and the State Bar Association
Special Procedure Committee
June 3-4, 1976
The meeting was called to order at 1:30 p.m., June 3, 1976, by Justice Paul M. Sand, Chairman.
ATTENDANCE
Members Present:
Hon. Eugene A. Burdick
Hon. William F. Hodny
Hon. James H. O'Keefe
Hon. R. C. Heinley
Hon. Wm. S. Murray
Mr. Larry Kraft
Mr. David L. Peterson
Mr. Kent Higgins
Hon. Robert Vogel
Hon. Paul M. Sand
Staff Present:
Duane Houdek
Eveleen Klaudt
Also present:
Christine Hogan (Law Clerk)
REVIEW OF MINUTES
Judge Burdick MOVED to defer consideration of the Minutes of the April 8-9, 1976, meeting. The motion was seconded by Judge Murray. Motion CARRIED.
ARTICLE III
Mr. Kraft led the discussion on Article III.
RULE 301
Judge Burdick MOVED to adopt Rule 301.
RULE 301. Presumptions in General in Civil Actions and Proceedings.
(a) Effect. In all civil actions and proceedings not otherwise provided for by statute or by these rules, if facts giving rise to a presumption are established by credible evidence, the presumption serves as a substitute for evidence of the existence of the fact presumed until the trier of fact finds from credible evidence the fact presumed does not exist, in which event the
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presumption is rebutted and ceases to operate. A party against whom a presumption is directed has the burden of proving that the nonexistence of the presumed fact is more probable than its existence.
(b) Inconsistent presumptions. If presumptions are inconsistent, the presumption applies that is founded upon weightier considerations of policy. If considerations of policy are of equal weight neither presumption applies.
Justice Vogel seconded the motion. Motion CARRIED.
ARTICLE VI
Mr. Higgins led the discussion of Article VI.
RULE 610
Mr. Higgins MOVED to amend Rule 610 by adding the following language at the end of the Rule: "except where a showing of unusual and particular relevancy is made to the court in chambers prior to the introduction of the evidence." The motion was seconded by Judge Hodny. Motion LOST.
Judge Hodny MOVED to adopt Rule 610 as prepared.
Rule 610. Religious Beliefs or Opinions.
Evidence of the beliefs or opinions of a witness on matters of religion is not admissible for the purpose of showing that by reason of their nature his credibility is impaired or enhanced.
Judge Heinley seconded the motion. Motion CARRIED.
RULE 611
Mr. Higgins MOVED the adoption of Rule 611, with a style change to delete the word "may" in line 10 and insert the word "may" before the word "permit" in line 11.
RULE 611. Mode and Order of Interrogation and Presentation.
(a) Control by court. The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment.
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(b) Scope of cross-examination. Cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness. The court, in the exercise of discretion, may permit inquiry into additional matters as if on direct examination.
(c) Leading questions. Leading questions should not be used on the direct examination of a witness except as may be necessary to develop his testimony. Ordinarily leading questions should be permitted on cross-examination. Whenever a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions.
Judge Hodny seconded the motion. Motion CARRIED.
RULE 612
Mr. Higgins MOVED to adopt Rule 612 as drafted by the National Conference of Commissioners on Uniform State Laws.
RULE 612. Writing or Object Used to Refresh Memory.
(a) While testifying. If, while testifying, a witness uses a writing or object to refresh his memory, an adverse party is entitled to have the writing or object produced at the trial, hearing, or deposition in which the witness is testifying.
(b) Before testifying. If, before testifying, a witness uses a writing or object to refresh his memory for the purpose of testifying and the court in its discretion determines that the interests of justice so require, an adverse party is entitled to have the writing or object produced, if practicable, at the trial, hearing, or deposition in which the witness is testifying.
(c) Terms and conditions of production and use. A party entitled to have a writing or object produced under this rule is entitled to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness. If production of the writing or object at the trial, hearing, or deposition is impracticable, the court may order it made
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available for inspection. If it is claimed that the writing or object contains matters not related to the subject matter of the testimony, the court shall examine the writing or object in camera, excise any portions not so related, and order delivery of the remainder to the party entitled thereto. Any portion withheld over objections shall be preserved and made available to the appellate court in the event of an appeal. If a writing or object is not produced, made available for inspection, or delivered pursuant to order under this rule, the court shall make any order justice requires, but in criminal cases if the prosecution elects not to comply, the order shall be one striking the testimony or, if the court in its discretion determines that the interests of justice so require, declaring a mistrial.
Judge Burdick seconded the motion. Motion CARRIED.
RULE 613
Mr. Higgins MOVED to adopt Rule 613.
RULE 613. Prior Statements of Witnesses.
(a) Examining witness concerning prior statement. In examining a witness concerning a prior statement made by him, whether written or not, the statement need not be shown nor its contents disclosed to him at that time, but on request the same shall be shown or disclosed to opposing counsel.
(b) Extrinsic evidence of prior inconsistent statement of witness. Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate him thereon, or the interests of justice otherwise require. This provision does not apply to admission of a party-opponent as defined in Rule 801(d)(2).
Judge Burdick seconded the motion. Motion CARRIED.
The staff attorney is asked to include Starr v. Morisette, 236 N.W.2d 183 (N.D. 1975), in the explanatory notes to Rule 613.
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RULE 614
Mr. Higgins MOVED to adopt Rule 614.
RULE 614. Calling and Interrogation of Witnesses by Court.
(a) Calling by court. The court, on its own motion or at the suggestion of a party, may call witnesses, and all parties are entitled to cross-examine witnesses thus called.
(b) Interrogation by court. The court may interrogate witnesses, whether called by itself or by a party.
(c) Objections. objections to the calling of witnesses by the court or to interrogation by it or to specific questions by it may be made at the time or at the next available opportunity when the jury is not present.
Judge Burdick seconded the motion. Motion CARRIED.
RULE 615
Mr. Higgins MOVED to adopt Rule 615. The motion was seconded by Judge Burdick.
Judge O'Keefe MOVED to amend Rule 615, line 2, delete the word "shall" and insert the word "may." The motion was seconded by Mr. Peterson. Motion LOST.
The question was on the motion of Mr. Higgins to adopt Rule 615.
RULE 615. Exclusion of Witnesses.
At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order on its own motion. This rule does not authorize exclusion of (1) a party who is a natural person, or (2) an officer or employee of a party that is not a natural person designated as its representative by its attorney, or (3) a person whose presence is shown by a party to be essential to the presentation of his cause.
Motion CARRIED.
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ARTICLE VII
Judge Hodny led the discussion on Article VII.
RULE 701
Judge Hodny MOVED to adopt Rule 701.
RULE 701. Opinion Testimony by Lay Witnesses.
If the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are (1) rationally based on the perception of the witness and (2) helpful to a clear understanding of his testimony or the determination of a fact in issue.
Judge Burdick seconded the motion. Motion CARRIED.
RULE 702
Judge Hodny MOVED to adopt Rule 702.
RULE 702. Testimony by Experts.
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
Mr. Higgins seconded the motion. Motion CARRIED.
RULE 703
Judge Hodny MOVED to adopt Rule 703.
RULE 703. Bases of Opinion Testimony by Experts.
The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.
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Judge Burdick seconded the motion. Motion CARRIED.
RULE 704
Judge Hodny MOVED to adopt Rule 704.
RULE 704. Opinion on Ultimate Issue.
Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.
Judge Burdick seconded the motion. Motion CARRIED.
RULE 705
Judge Hodny MOVED to adopt Rule 705.
RULE 705. Disclosure of Facts or Data Underlying Expert Opinion.
The expert may testify in terms of opinion or inference and give his reasons therefor without prior disclosure of the underlying facts or data, unless the court requires otherwise. The expert may in any event be required to disclose the underlying facts or data on cross-examination.
Judge Burdick seconded the motion. Motion CARRIED.
RULE 706
Judge Hodny MOVED to amend Rule 706 in line 25 delete the word "judge" and insert the word "court," and when so amended that Rule 706 be adopted.
RULE 706. Court Appointed Experts.
(a) Appointment. The court, on motion of any party or its own motion, may enter an order to show cause why expert witnesses should not be appointed, and may request the parties to submit nominations. The court may appoint any expert witnesses agreed upon by the parties, and may appoint expert witnesses of its own selection. An expert witness shall not be appointed by the court unless he consents to act. A witness so appointed shall be informed of his duties by the court in writing, a copy
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of which shall be filed with the clerk, or at a conference in which the parties shall have opportunity to participate. A witness so appointed shall advise the parties of his findings, if any; his deposition may be taken by any party; and he may be called to testify by the court or any party. He shall be subject to cross-examination by each party, including a party calling him as a witness.
(b) Compensation. Expert witnesses so appointed are entitled to reasonable compensation in whatever sum the court may allow. The compensation thus fixed is payable from funds which may be provided by law. In civil actions where no funds are provided by law, the compensation shall be paid by the parties in such proportion and at such times as the court directs and thereafter charged in like manner as other costs.
(c) Disclosure of appointment. In the exercise of its discretion, the (((judge))) court may authorize disclosure to the jury of the fact that the court appointed the expert witness.
(d) Parties' experts of own selection. Nothing in this rule limits the parties in calling expert witnesses of their own selection.
Mr. Higgins seconded the motion. Motion CARRIED.
ARTICLE IX
In the absence of Mr. Pearce, to whom this Article had been assigned, Mr. Houdek led the discussion.
RULE 901
Judge Burdick MOVED to amend Rule 901 as follows:
In line 10, at the end of the line, after the word "Testimony" add the words "of a witness with knowledge"; line 51, delete the word "by" and insert the word "or"; line 52, after the word "or" insert the words "as provided"; and when so amended that Rule 901 be adopted.
RULE 901. Requirement of Authentication or Identification.
(a) General provision. The requirement of authentication or identification as a condition precedent to admissibility is satisfied
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by evidence sufficient to support a finding that the matter in question is what its proponent claims.
(b) Illustrations. By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this rule:
(1) Testimony of witness with knowledge. Testimony of a witness with knowledge that a matter is what it is claimed to be.
(2) Nonexpert opinion on handwriting. Nonexpert opinion as to the genuineness of handwriting, based upon familiarity not acquired for purposes of the litigation.
(3) Comparison by trier or expert witness. Comparison by the trier of fact or by expert witnesses with specimens which have been authenticated.
(4) Distinctive characteristics and the like. Appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances.
(5) Voice identification. Identification of a voice, whether heard firsthand or through mechanical or electronic transmission or recording, by opinion based upon hearing the voice at any time under circumstances connecting it with the alleged speaker.
(6) Telephone conversations. Telephone conversations, by evidence that a call was made to the number assigned at the time by the telephone company to a particular person or business, if (A) in the case of a person, circumstances, including self-identification, show the person answering to be the one called, or (B) in the case of a business, the call was made to a place of business and the conversation related to business reasonably transacted over the telephone.
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(7) Public records or reports. Evidence that a writing authorized by law to be recorded or filed and in fact recorded or filed in a public office, or a purported public record, report, statement, or data compilation, in any form, is from the public office where items of this nature are kept.
(8) Ancient documents or data compilation. Evidence that a document or data compilation, in any form, (A) is in such condition as to create no suspicion concerning its authenticity, (B) was in a place where it, if authentic, would likely be, and (C) has been in existence 20 years or more at the time it is offered.
(9) Process or system. Evidence describing a process or system used to produce a result and showing that the process or system produces an accurate result.
(10) Methods provided by statute or rule. Any method of authentication or identification complying with these rules, (((by))) or other rules adopted by the North Dakota Supreme Court, or as provided by statute.
Mr. Higgins seconded the motion. Motion CARRIED.
Judge O'Keefe wished to be recorded as being opposed to this Rule.
RULE: 902
Judge Burdick MOVED to amend Rule 902, line 65 delete "Presumptions under law" and insert "Presumptions declared by statute"; line 66 delete "law" and insert "statute," and when so amended to adopt Rule 902.
RULE 902. Self-authentication.
Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to the following:
(1) Domestic public documents under seal. A document bearing a seal
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purporting to be that of the United States, or of any State, district, commonwealth, territory, or insular possession thereof, or of the Panama Canal Zone, or the Trust Territory of the Pacific Islands, or of a political subdivision, department, officer, or agency thereof, and a signature purporting to be an attestation or execution.
(2) Domestic public documents not under seal. A document purporting to bear the signature in his official capacity of an officer or employee of any entity included in paragraph (1), having no seal, if a public officer having a seal and having official duties in the district or political subdivision of the officer or employee certifies under seal that the signer has the official capacity and that the signature is genuine.
(3) Foreign public documents. A document purporting to be executed or attested in his official capacity by a person authorized by the laws of a foreign country to make the execution or attestation, and accompanied by a final certification as to the genuineness of the signature and official position (A) of the executing or attesting person, or (B) of any foreign official whose certificate of genuineness of signature and official position relates to the execution or attestation or is in a chain of certificates of genuineness of signature and official position relating to the execution or attestation. A final certification may be made by a secretary of embassy or legation, consul general, consul, vice consul, or consular agent of the United States, or a diplomatic or consular official of the foreign country assigned or accredited to the United States. If reasonable opportunity has been given to all parties to investigate the authenticity and accuracy of official documents, the court, for good cause shown, may order that they be treated as presumptively authentic without final certification or permit them to be evidenced by an attested summary with or without final certification.
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(4) Certified copies of public records. A copy of an official record or report or entry therein, or of a document authorized by law to be recorded or filed and actually recorded or filed in a public office, including data compilations in any form, certified as correct by the custodian or other person authorized to make the certification, by certificate complying with paragraph (1), (2), or (3) or complying with any law of the United States or of this State.
(5) Official publications. Books, pamphlets, or other publications purporting to be issued by public authority.
(6) Newspapers and periodicals. Printed materials purporting to be newspapers or periodicals.
(7) Trade inscriptions and the like. Inscriptions, signs, tags, or labels purporting to have been affixed in the course of business and indicating ownership, control, or origin.
(8) Acknowledged documents. Documents accompanied by a certificate of acknowledgment executed in the manner provided by law by a notary public or other officer authorized by law to take acknowledgments.
(9) Commercial paper and related documents. Commercial paper, signatures thereon, and documents relating thereto to the extent provided by general commercial law.
(10) (((Presumptions under law.))) Presumptions declared by statute. Any signature, document, or other matter declared by (((law))) statute to be presumptively or prima facie genuine or authentic.
Judge Vogel seconded the motion. Motion CARRIED.
RULE 903
Judge Burdick MOVED to adopt Rule 903.
RULE 903. Subscribing Witness' Testimony Unnecessary.
The testimony of a subscribing witness is not necessary to authenticate a writing unless
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required by the laws of the jurisdiction whose laws govern the validity of the writing.
Judge O'Keefe seconded the motion. Motion CARRIED.
ARTICLE XI
RULE 1101
Judge Vogel MOVED to amend Rule 1101 as follows: Line 3, delete "the state" and insert "this State"; line 5, place a comma after the word "proceedings"; lines 11 and 12, delete the parenthesis and place commas in their places; line 23, after the word "otherwise" insert "detention hearings, dispositional hearings in juvenile court"; and when so amended to adopt Rule 1101. The motion was seconded by Judge Hodny.
Mr. Higgins MOVED to amend Rule 1101, line 11, so that it would read, "The rules, other than those with respect to privileges, do not apply where otherwise provided by statute in the following situations:". Motion LOST for lack of a second.
The question was on the motion of Judge Vogel to amend and adopt Rule 1101:
RULE 1101. Applicability of Rules.
(a) Courts and magistrates. These rules apply to all the courts of (((the state))) this State.
(b) Proceedings generally. These rules apply generally to all civil actions, special proceedings, and criminal actions and to contempt proceedings except those in which the (((judge))) court may act summarily.
(c) Rules of privilege. The rules with respect to privileges apply at all stages of all actions, cases, and proceedings.
(d) Rules inapplicable. The rules (((( ( ))), other than those with respect to privileges ((( ) ))), do not apply in the following situations:
(1) Preliminary questions of fact. The determination of questions of fact preliminary to admissibility of evidence when the issue is to be determined by the court under Rule 104.
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(2) Grand jury. Proceedings before grand juries.
(3) Miscellaneous proceedings. Proceedings for extradition or rendition; preliminary examinations in criminal cases; sentencing, or granting or revoking probation; issuance of warrants for arrest, criminal summonses, and search warrants; and proceedings with respect to release on bail or otherwise, detention hearings, dispositional hearings in juvenile court, and proceedings conducted in accordance with the provisions of Chapter 28-32, N.D.C.C.
Motion CARRIED.
Mr. Higgins wishes the record to reflect his objection to the sweeping exceptions in Rule 1101(d)(3).
The Committee felt that they may wish to look again at Rule 1101(d)(3), and study it further.
RULE 1103
Judge Burdick MOVED to amend Rule 1103 so that it shall read:
RULE 1103. Title.
These rules shall be known as North Dakota Rules of Evidence and may be cited as N.D.R.Ev.
Judge Vogel seconded the motion. Motion CARRIED.
Justice Vogel MOVED to adopt Rule 1103 as amended. Judge Burdick seconded the motion. Motion CARRIED.
RULE 902
Mr. Kraft MOVED to reconsider the action taken on the adoption of Rule 902. Judge Burdick seconded the motion. Motion CARRIED.
Mr. Kraft MOVED to amend Rule 902(10), line 65, delete the word "Presumptions" and insert the word "Matters." Judge Burdick seconded the motion. Motion CARRIED.
Judge Burdick MOVED to re-adopt Rule 902, as amended.
RULE 902. Self-authentication.
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[Rule 902 (1), (2), (3), (4), (5), (6), (7), (8), and (9), re-adopted as shown on pages 10, 11, and 12 of these Minutes.]
(1) (((Presumptions under law.))) (((Presumptions))) Matters declared by statute. Any signature, document, or other matter declared by (((law))) statute to be presumptively or prima facie genuine or authentic.
Mr. Kraft seconded the motion. Motion CARRIED.
RULE 803
Judge Burdick MOVED to reconsider the action taken on the adoption of Rule 803. Judge Murray seconded the motion. Motion CARRIED.
Judge Burdick MOVED to amend Rule 803(11), line 83, delete "legitimacy" and insert "parentage"; and to amend Rule 803 (19), line 134, delete "legitimacy" and insert "parentage". The motion was seconded by Judge Murray. Motion CARRIED.
Judge Burdick MOVED to re-adopt Rule 803, as amended.
RULE 803. Hearsay Exceptions; Availability of Declarant Immaterial.
[Rule 803 (1), (2), (3), (4), (5), (6), (7), (8), (9), and (10), re-adopted as shown on pages 19, 20, and 21 of the Minutes of the January 29, 1976, meeting.]
(11) Records of religious organization. Statements of births, marriages, divorces, deaths, (((legitimacy))) parentage, 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.
[Rule 803 (12), (13), (14), (15), (16)), (17) and (18) re-adopted as shown on pages 21, 22, and 23 of the Minutes of the January 29, 1976, meeting.]
(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))) parentage,
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relationship by blood, adoption, or marriage, ancestry, or other similar fact of his personal or family history.
[Rule 803 (20), (21), (22) and (23), re-adopted as shown on pages 23 and
24 of the Minutes of the January 29, 1976, meeting; Rule 803 (24) re-adopted as shown on page 9 of the Minutes of the April 8, 1976, meeting.]
Motion seconded by Judge Murray. Motion CARRIED.
RULE 26, NDRCrimP
Judge Hodny MOVED that Rule 26 of the North Dakota Rules of Criminal Procedure be amended as proposed, and when so amended be adopted.
RULE 26. (((Evidence.))) Taking of Testimony.
In all trials the testimony of witnesses shall be taken orally in open court, unless otherwise provided by (((law or by))) these rules, the North Dakota Rules of Evidence, or other rules adopted the Supreme Court or by statute. (((The admissibility of evidence and the competency and privileges of witnesses shall be governed, except when a statute or these rules otherwise provide, by the principles of the common law as they may be interpreted by the courts of this State in the light of reason and experience.)))
The motion was seconded by Judge Burdick. Motion CARRIED.
RULE 43, NDRCivP
Judge Burdick MOVED that Rule 43 of the North Dakota Rules of Civil Procedure be amended as proposed, and when so amended be adopted.
RULE 43. (((Evidence.))) Taking of Testimony.
(a) Form (((and admissibility)))). In all trials the testimony of witnesses shall be taken in open court, unless otherwise provided by these rules, the North Dakota Rules of Evidence, or other rules adopted by the Supreme Court, or by statute. (((All evidence shall be admitted which is admissible under the statutes of this state, or under the rules of evidence heretofore applied in the trial of actions in the courts of this state. In any
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case, the statute or rule which favors the reception of the evidence governs and the evidence shall be presented according to the most convenient method prescribed in any of the statutes or rules to which reference is herein made. The competency of a witness to testify shall be determined in like manner.)))
(b) (((Scope of examination and cross-examination. A party may interrogate any unwilling or hostile witness by leading questions. A party may call an adverse party or an officer, director, superintendent or managing agent of a public or private corporation or of a partnership or association which is an adverse party, and interrogate him by leading questions and contradict and impeach him in all respects as if he had been called by the adverse party, and the witness thus called may be contradicted and impeached by or on behalf of the adverse party also, and may be cross-examined by the adverse party only upon the subject matter of his examination in chief.))) [Reserved for future use.]
(c) (((Record of excluded evidence. In an action tried by a jury, if an objection to a question propounded to a witness is sustained by the court, the examining attorney may make a specific offer of what he expects to prove by the answer of the witness. The court may require the offer to be made out of the hearing of the jury. The court may add such other or further statement as clearly shows the character of the evidence, the form in which it was offered, the objection made, and the ruling thereon. In actions tried without a jury the same procedure may be followed, except that the court upon request shall take and report the evidence in full, unless it clearly appears that the evidence is not admissible on any ground or that the witness is privileged.))) [Reserved for future use.]
(d) Affirmation in lieu of oath. Whenever under these rules an oath is required to be taken, a solemn affirmation shall be accepted in lieu thereof as provided by section 31-01-22.
(e) Evidence on motions. When a motion is based on facts not appearing of record the court may hear the matter on affidavits presented by the respective parties, but the court may direct
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that the matter be heard wholly or partly on oral testimony or depositions.
The motion was seconded by Judge Hodny. Motion CARRIED.
The meeting was adjourned to 9:00 a.m. June 4, 1976.
The meeting was called to order at 9:00 a.m., June 4, 1976, by Justice Paul M. Sand, Chairman.
ATTENDANCE:
Members Present:
Hon. Eugene A. Burdick
Hon. William F. Hodny
Hon. James H. O'Keefe
Hon. R. C. Heinley
Hon. Wm. S. Murray
Mr. Larry Kraft
Mr. David L. Peterson
Mr. Kent Higgins
Hon. Larry Hatch
Hon. Robert Vogel
RULE 301
Judge Burdick MOVED to reconsider the action taken on the adoption of Rule 301. Judge Murray seconded the motion. Motion CARRIED.
Judge Burdick MOVED to amend Rule 301, line 6, delete the words "serves as a substitute for" and insert the word "substitutes"; line 8, add the word "that" after the word "evidence". Judge Hodny seconded the motion. Motion CARRIED.
Judge Burdick MOVED to adopt Rule 301, as amended.
RULE 301. Presumptions in General in Civil Actions and Proceedings.
(a) Effect. In all civil actions and proceedings not otherwise provided for by statute or by these rules, if facts giving rise to a presumption are established by credible evidence, the presumption (((serves as a substitute ))) substitutes for evidence of the existence of the fact presumed until the trier of fact finds from credible evidence that the fact presumed does not exist, in which event the presumption is rebutted and ceases to operate. A party against whom a presumption is directed has the burden of proving that the nonexistence of the presumed fact is more probable than its existence.
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(b) Inconsistent Presumptions. If presumptions are inconsistent, the presumption applies that is founded upon weightier considerations of policy. If considerations of policy are of equal weight neither presumption applies.
Judge Hodny seconded the motion. Motion CARRIED.
COMMENTARIES
Judge Burdick: Show the difference between our draft and the Federal Rule. If there is no difference between rules, we should indicate effect of any rule or previous statutes or decisions, whether in harmony or disharmony with existing North Dakota law.
Justice Sand: We should follow same format as in the criminal rules.
Judge Burdick: We do not need to look into general explanation of origin and purpose if it is covered by federal notes or congressional notes. Every lawyer will have access to West or a copy of the federal rules that contain comments and explanatory notes.
Mr. Kraft: We must make sure we look at all of the statutes, and whether they were superseded, or were not superseded
Justice Sand: Thought a table would be developed from the explanatory notes.
Judge Burdick: Recommend certain statutes for amendment, not repealed or superseded. In the area of privilege, for example, we may want to recommend that we amend legislatively. I feel it is a legislative function rather than a judicial function to indicate who has the privilege and who has not.
Mr. Higgins: The notes simply restate the language of the rule. Maybe we should delete it, but in view of the fact that the, rules apply to small claims court, I think there should be a brief statement that the rules of evidence are applicable to small claims court.
Justice Sand: A comment under Rule 1101(b) would be appropriate to draw attention to those statutes and a statement that the provisions of the statute can be complied with without doing harm or violence to any rule of evidence.
Consensus: Yes.
Justice Sand: There should be a statement to the effect that the decision reached must be based upon admissible evidence.
Judge Burdick: Hearsay not objected to is not competent evidence.
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Judge Hodny: We should reconcile small claims court proceedings with rules of evidence.
Take up with Rule 1101.
Mr. Higgins: Do not include any explanatory note on Rule 1101.
Judge Burdick: Why not note like the federal note on Rule 101?
EXPLANATORY NOTES
NOTE on RULE 101
Judge Burdick MOVED that the explanatory note to Rule 101 be deleted. Mr. Kraft seconded the motion. Motion CARRIED.
NOTE on RULE 102
Judge Hodny MOVED to adopt the explanatory note on Rule 102. Judge Heinley seconded the motion.
Mr. Peterson MOVED to delete everything after the first sentence. Mr. Kraft seconded the motion. Motion WITHDRAWN.
Mr. Peterson MOVED a substitute motion to delete the entire explanatory note to Rule 102. Mr. Kraft seconded the motion. Motion CARRIED.
NOTE on RULE 103
Judge Burdick: Note should indicate whether there is any change from the federal rule.
Justice Sand: It is my assumption that even if there is no explanatory note, the source would still say "adopted from the federal rule," and at that point you might add "without modification" or what the modification is. Then the next thing would be the statutes affected or superseded.
Judge O'Keefe: There should be some comment in the explanatory note about Rule 52(b), NDRCrimP. Cf. Rule 52, NDRCrimP. Also Rule 61, NDRCivP.
Mr. Kraft feels we should leave out obvious references to Rule language.
Mr. Higgins MOVED that we consider the explanatory note to Rule 103 paragraph by paragraph.
NOTE on RULE 103, PARAGRAPH 1
Mr. Higgins MOVED to delete the first sentence, leave the second sentence, and delete the third sentence. Therefore, the first paragraph would read:
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The purpose of section (a) is to give the trial court an adequate basis for making a ruling, and to create a record which will permit informed appellate review. See generally, Signal Drilling Co. v. Liberty Petroleum Co., 226 N.W.2d 148 (N.D. 1975). See also, State v. Haakenson, 213 N.W.2d 394 (N.D. 1973); Grenz v. Werre, 129 N.W.2d 681 (N.D. 1964).
Judge Burdick seconded the motion. Motion CARRIED.
NOTE on RULE 103, PARAGRAPH 2
Judge Burdick MOVED to delete paragraph 2. Mr. Kraft seconded the motion.
Mr. Higgins MOVED a substitute motion to delete all of the language in the second paragraph, except the following:
It would be appropriate for counsel in most cases to make an offer of proof whenever evidence is excluded.
and to include all of the third paragraph, with additional citations. Judge Heinley seconded the motion. Motion LOST 5-4.
The question was on the motion of Judge Burdick to delete paragraph 2, which motion CARRIED.
NOTE on RULE 103, PARAGRAPH 3
Judge Burdick MOVED to adopt paragraph 3, as follows:
As to rulings made by a court in nonjury cases, the North Dakota Supreme Court has stated that "the introduction of allegedly inadmissible evidence in a nonjury case will rarely be reversible error." Signal Dri1ling, supra, at 153, quoting Schuh v. Allery, 210 N.W.2d 96, 99 (N.D. 1973).
and to update the citations. The motion was seconded by Judge Hodny. Motion CARRIED.
NOTE on RULE 103, PARAGRAPH 4
Judge Burdick MOVED to adopt the first sentence of the explanatory note, and the citation, as follows:
Section (b) encourages the trial court to add to the record any statement that may aid the appellate court in its review of evidentiary rulings. See the related discussion of Rule 43(c), NDRCivP, in Signal Drilling, supra, at 153.
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Mr. Peterson seconded the motion. Motion CARRIED.
NOTE on RULE 103, PARAGRAPH 5
Judge Burdick MOVED to delete paragraph 5. The motion was seconded by Judge O'Keefe. Motion CARRIED.
NOTE on RULE 103, PARAGRAPH 6
Judge Burdick MOVED to adopt the last paragraph of the Note on Rule 103, referring to section (d), as follows:
Section (d) is a statement of the doctrine of plain error, but omits the word "plain." The omission was meant to signify that errors affecting substantial rights should be corrected whether or not they are "plain" or "obvious." Cf. Rule 52, NDRCrimP and Rule 61, NDRCivP.
Judge O'Keefe seconded the motion. Motion CARRIED.
ALL EXPLANATORY NOTES
Mr. Kraft MOVED that in all explanatory notes where we have the word "judge" or "judges" we substitute "court" or "courts." Judge Burdick seconded the motion. Motion CARRIED.
NOTE on RULE 104
Judge Burdick MOVED to adopt the explanatory note on Rule 104, as follows:
Section (a) continues the orthodox practice of placing with the court the responsibility of determining preliminary questions of admissibility of evidence. These determinations as to the competency of evidence involve deciding matters of both law and fact, and the two are often inextricably intertwined so as to render inappropriate a jury determination of the factual questions. A jury cannot be expected to view facts in terms of the often technical legal standards of competency of evidence. The jury cannot be expected to look at certain evidence and determine whether it is hearsay and, if it is, whether it comes within a recognized hearsay exception. Nor can a jury be expected to ignore evidence which, after consideration, is found to be incompetent and properly excluded.
For these reasons, questions of the competency of evidence are for decision by the court. In making its determination, the court is not bound by rules of evidence, except by rules of privilege,
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which are given exceptional status because of the need to maintain, totally, the confidentiality they are designed to protect.
Section (b) provides that whenever a preliminary question is one of conditional relevancy of evidence, rather than its competency, the jury is to determine whether the preliminary fact exists. Thus, if the relevancy of a statement depends on whether it was heard by a certain party, the jury may receive the statement subject to fulfillment of the condition that, in fact, it was heard by the appropriate party. This preliminary, conditional question is one of fact that should be determined by a jury. None of the problems which render preliminary questions of competency proper matters for a court's determination exists when questions of conditional relevancy are involved: No legal standards need be considered on appeal, the question is solely one of the probative value of evidence. Nor is there a need to shield from the jury evidence that is introduced and later found irrelevant because the conditional fact is found not to exist. The jury is likely to recognize the lack of probative force of the evidence once they have found that the condition has not been met and, after being instructed not to consider that evidence, may be assumed to be able to ignore it.
Mr. Higgins seconded the motion. Motion CARRIED.
NOTE on RULE 105
Mr. Peterson MOVED to adopt the explanatory note on Rule 105, as follows:
Evidence is often admissible for one purpose, but not for another. Whenever this occurs the trial judge may decide, under Rule 403, that the prejudicial effect of admitting the evidence outweighs its probative value and exclude the evidence entirely. But total exclusion of evidence which has some probative value is a harsh remedy and, especially in civil cases, as McCormick has suggested, should be used only
"where the danger of the jury's misuse of the evidence for the incompetent purpose is great and its value for the legitimate purpose is slight or the point for which it is competent can readily be proved by other evidence. . . ." McCormick on Evidence 136.
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Normally, the decision made will be to admit the evidence. In these situations, this rule requires that a court restrict the evidence to its proper scope and instruct the jury accordingly.
Situations in which evidence is admissible as to one party but not to another usually occur in a joint trial of criminal defendants. Rule 105 applies to these situations, but its use must be carefully considered in light of constitutional protections surrounding criminal defendants. For example, it has been held that allowing the admission of statements made by a defendant who refused to testify, exculpating himself and incriminating a co-defendant, was a deprivation of the latter's right to cross-examination and, furthermore, that instructions restricting the use of the evidence were not sufficient to cure the problem of the jury's possible misuse of the evidence. Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). But see, Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969), holding that not all violations of Bruton are reversible error.
Judge Hodny seconded the motion. Motion CARRIED.
NOTE on RULE 106
Judge O'Keefe MOVED to adopt the explanatory note on Rule 106, as follows:
Rule 106 is an expression of what Wigmore has termed "the rules of completeness." VII Wigmore on Evidence § 2094, et seq. (3d ed. 1940). The rule is not a rule of admissibility, but rather one dealing with order of proof and, as such, may be considered to be but a specific application of the general dictates of Rule 611.
According to the Advisory Committee's note to Rule 106, FRE:
"The rule is based on two considerations. The first is the misleading impression created by taking matters out of context. The second is the inadequacy of repair work when delayed to a point later in the trial." 1 Weinstein's Evidence 106-2.
To avoid these problems, Rule 106 requires that the remainder of or related writings or recordings be admitted at the same time as the principal evidence if the trial court determines, in fairness,
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that this ought to be done. The standard of fairness gives the trial court wide discretion under this rule, which accords with the powers of a trial court to regulate the mode and order of proof, generally, granted by Rule 611. Thus, the court need not admit all evidence that may be related to the evidence sought to be introduced. Rules of relevancy, and other rules of admissibility, generally, should guide the trial court's decision.
Mr. Higgins seconded the motion. Motion CARRIED.
NOTE on RULE 201
Judge Burdick MOVED to delete the second sentence of the first paragraph on page 4 of the proposed draft, and then to adopt the explanatory note to Rule 201 as follows:
Rule 201 is the only rule dealing with the subject of judicial notice and, by the terms of section (a) is limited in application to the judicial notice of adjudicative facts, i.e., the facts of the particular case before the courts, facts that are normally the subject of proof by formal introduction of evidence. Judicial notice of legislative facts, facts that aid the court in the interpretation and application of law and policy, is not governed by this or any other rule of evidence. This represents a change in North Dakota law, for under Chapter 31-10, NDCC, both adjudicative and legislative facts were subject to the constraints of the doctrine of judicial notice. These rules contemplate that notice of legislative facts must be freely taken, without the requirement of first showing that the fact is one of common knowledge or capable of easy and accurate verification. To do otherwise would stifle the growth and development of decisional law.
Section (b) provides that the kinds of adjudicative facts which may be judicially noticed must be either (1) generally known or (2) capable of accurate and ready determination. The first basis for taking judicial notice, i.e., that a fact is one of common knowledge, is perhaps more familiar, but the second is clearly recognized by practice if not always by name. See, e.g., Boehm v. Burleigh County, 130 N.W.2d 170 (N.D. 1964). See also, McCormick on Evidence § 330. If the function of judicial notice is to remove from the stricture of formal proof facts that are clearly beyond dispute, then either basis for the exercise of judicial notice is valid.
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Sections (c) and (d) provide that a court may take judicial notice on its own motion and must take judicial notice of a fact when requested by a party to do so, provided, of course, that the basic requirements for taking judicial notice are met.
It should be noted that although the taking of judicial notice, under section (c), is discretionary if not requested by a party, the scope of appellate review of a trial court's decision is not limited to determining whether the trial court's decision was "clearly erroneous," the usual standard applied in reviewing discretionary decisions. As stated in I Weinstein's Evidence ¶ 201[04] at 201-33-34:
"The grant of discretionary authority does not mean, as it does in other situations, that the trial judge's determination is virtually insulated from appellate review. An appellate court is in as good a position as the trial court to ascertain the degree of probability of a judicially noticeable fact. There is no need for the appellate court to defer to the trial judge's feel for the case. Accordingly, subdivision (b) must be read in conjunction with subdivision (f) authorizing judicial notice 'at any stage of the proceedings.' If the trial judge failed to notice a fact which the appellate court feels was a proper subject for judicial notice, the appellate court may notice the fact despite the grant of discretionary authority. This does not mean, however, that 'judicial notice . . . should be used as a device to correct on appeal an almost complete failure to present adequate evidence to the trial court.'
"Appellate courts have adequate power in the reverse situation where they disagree with the trial judge's recognition of a fact. The reviewing court may reverse if it finds that the fact was neither 'generally known' nor 'verifiable.'"
Section (e) grants to parties the basic right to be heard concerning the taking of judicial notice. Whenever judicial notice is to be taken pursuant to a party's request, all parties will be notified of that fact and may exercise their right to be heard on the issue. Whenever a judge contemplates taking judicial notice of a fact on his own motion, he should clearly inform the parties of his intention and provide an opportunity for hearing of the issue.
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If the court fails to give prior notification, it must provide an opportunity for objection after judicial notice has been taken.
The object of this section is to achieve procedural fairness. No special form of notice is required nor is there a need for a formal hearing. If the parties, in fact, are given notice and an opportunity to be heard, the requirements of this section will be met.
Under section (f), judicial notice may be taken at any stage of a proceeding. This is in accord with North Dakota law and practice under which the Supreme Court has traditionally taken judicial notice of certain facts. See, e.g., Wyldes v. Patterson, 31 N.D. 282, 153 N.W. 630 (1915).
It should be noted that the requirements of notice and an opportunity to be heard contained in section (e) apply to appellate courts contemplating taking original judicial notice. A hearing of the issues may be afforded during oral argument or, if oral argument has been completed, supplemental briefs may be requested.
There has been a continuing debate as to whether parties should be allowed to controvert a judicially noticed fact through the introduction of adverse evidence. See I Weinstein's Evidence ¶ 201[07]. The arguments advanced in favor of admitting contrary evidence are made by those who would treat judicial notice as a method of tentatively establishing facts that have not been challenged, but are not necessarily beyond dispute. Moreover, the proponents of admitting contrary evidence would include within the realm of judicial notice legislative facts, to which this rule does not apply. See, e.g., Thayer, A Preliminary Treatise on Evidence, 308 (1898).
Under this rule, a judicially noticed fact may not be controverted and the court is to instruct the jury that they shall accept those facts as conclusive.
The position that judicially noticed facts may not be controverted is taken under this rule primarily because of the narrow scope of application of the rule. The rule applies only to adjudicative facts that are not subject to reasonable dispute. Thus, the determination that a fact is beyond dispute is made before the fact
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is judicially noticed. It would serve no useful purpose to later admit evidence contrary to the noticed fact.
Mr. Peterson seconded the motion. Motion CARRIED.
ALL EXPLANATORY NOTES
Mr. Peterson MOVED that all citations be uniform, both as to treatises and as to cases. Judge O'Keefe seconded the motion. Motion CARRIED.
NOTE on RULE 301
Judge Burdick MOVED that we defer consideration of the explanatory note to Rule 301, and that Mr. Houdek prepare a commentary and submit the draft to Judge Burdick and Mr. Kraft before submitting it to the remainder of the Committee. Mr. Higgins seconded the motion. Motion CARRIED.
RULE 302
Mr. Higgins MOVED to reconsider the action by which Rule 302 was adopted. Mr. Peterson seconded the motion. Motion CARRIED.
Mr. Higgins MOVED to adopt Rule 302 as drafted by the National Conference of Commissioners of Uniform State Laws, together with the Comments.
RULE 302. Applicability of Federal Law
in Civil Actions and Proceedings.
In civil actions and proceedings, the effect of a presumption respecting a fact which is an element of a claim or defense as to which federal law supplies the rule of decision is determined in accordance with federal law.
COMMENT
Parallel jurisdiction in state and federal courts exists in many instances. The modification of Rule 302 is made in recognition of this situation. The rule prescribes that when a federally created right is litigated in a state court, any prescribed federal presumption shall be applied.
Mr. Peterson seconded the motion. Motion CARRIED.
NOTE on RULE 303
Mr. Higgins MOVED that when the explanatory note is written on Rule 303 it should also state that the subject matter is covered by § 12.1-01-03, NDCC. The motion was
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seconded by Judge Hatch. Motion CARRIED.
NOTE on RULE 401
Mr. Higgins MOVED to adopt the explanatory note to Rule 401, as follows:
This definition of "relevant evidence" has been adopted by the North Dakota Supreme Court. State v. Hendrickson, 240 N.W.2d 846, Syllabus ¶ 2 (N.D. 1976). The definition presents no conceptual departures from traditional thoughts on the subject of relevancy. The language is intended to reflect the realization that stringent legal standards cannot be meaningfully applied to govern determinations of relevancy and, consequently, that the area is one best left to the wide discretion of the trial court.
One point merits attention, and that is that evidence may be relevant even though directed toward a fact that is not in dispute. As stated in the Advisory Committee's Note to Rule 401, Federal Rules of Evidence:
"While situations will arise which call for the exclusion of evidence offered to prove a point conceded by the opponent, the ruling should be made on the basis of such considerations as waste of time and undue prejudice (see Rule 403), rather than under any general requirement that evidence is admissible only if directed to matters in dispute. Evidence which is essentially background in nature can scarcely be said to involve disputed matter, yet it is universally offered and admitted as an aid to understanding."
Judge O'Keefe seconded the motion. Motion CARRIED.
NOTE to RULE 402
Judge Heinley MOVED to adopt the explanatory note to Rule 402, as follows:
The focal point of this rule is not the statement that all relevant evidence is admissible and irrelevant evidence inadmissible, but rather that the many exceptions to this general statement are recognized and left undisturbed. Thus, for example, relevant evidence may be excluded to assure the continued recognition of a criminal defendant's
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constitutional rights (such as Miranda); to further the socially desirable policies underlying the privileges of Article V of these rules; or to avoid undue delay, prejudice, or confusion of the issues (Rule 403).
Judge Burdick seconded the motion. Motion CARRIED.
NOTE to RULE 403
Judge O'Keefe MOVED to adopt the explanatory note to Rule 403, as follows;
Rule 403 is an adaptation of Rule 403 of the Federal Rules of Evidence. It does not change North Dakota law, but rather codifies it. Evidence has traditionally been excluded on grounds of remoteness, see, e.g., In re Graf's Estate, 119 N.W.2d 478 (N.D. 1965), and on grounds that its probative value is not commensurate with the time required for its use as evidence. See Jones v. Boeing Co., 153 N.W.2d 897 (N.D. 1967). The rule vests wide discretion in the trial court to control the introduction of evidence.
It should be noted that surprise is not listed as a ground for exclusion. It has been stated that granting a continuance is the proper remedy for unfair surprise. See Advisory Committee's Note to Rule 403, F.R.E.
Judge Burdick seconded the motion. Motion CARRIED.
NOTE to RULE 404
Mr. Higgins MOVED that the Committee consider the explanatory note to Rule 404 paragraph by paragraph. The motion was seconded by Mr. Peterson. Motion CARRIED.
NOTE to RULE 404 - Paragraph 1
Mr. Higgins MOVED to strike the first sentence of the explanatory note to Rule 404, move the citation to the bottom of the paragraph, and change the sentence to read as follows:
"Character evidence is not admissible when its purpose would be to prove circumstantially how a person acted on a particular occasion."
The motion was seconded by Mr. Peterson. Motion LOST.
Judge Burdick MOVED to adopt paragraph 1, with the second sentence to read: "Character evidence is not admissible when its purpose would be to prove circumstantially how a person acted on a particular occasion."
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The explanatory note to Rule 404, paragraph 1, will then read as follows:
The general rule that character evidence may not be introduced to show that a person acted in conformity to his character is compatible with present North Dakota case law, See, Thornburg v. Perleberg, 158 N.W.2d 188 (N.D. 1968). Character evidence is not admissible when its purpose would be to prove circumstantially how a person acted on a particular occasion. Whenever the character of a person is in issue, as in a defamation case, this exclusion does not apply. McCormick on Evidence, §§ 186, 187.
Mr. Higgins seconded the motion. Motion CARRIED.
NOTE to RULE 404 - Paragraph 2
Mr. Higgins MOVED to adopt paragraph 2 of the explanation note to Rule 404, as follows:
Subsection (a)(1) allows the accused to offer circumstantial evidence of his own character. Traditionally, this has been allowed, for the objection to character evidence in general is not that it has no relevancy but that its probative value, when weighed against possible prejudice, does not warrant admission. If the accused offers such evidence, the issue of prejudice is no longer a factor.
Judge Burdick seconded the motion. Motion CARRIED.
NOTE to RULE 404 - Paragraph 3
Judge Burdick MOVED to adopt paragraph 3 of the explanation note to Rule 404 as submitted. Justice Vogel seconded the motion.
Mr. Higgins MOVED a substitute motion that we adopt the first sentence of the explanatory note to Rule 404, paragraph 3, and amend the second sentence to read, "A significant exception has been enacted to this general rule by the North Dakota Legislature with its adoption of § 12.1-20-14, NDCC and § 12.1-20-15, NDCC, relating to cases involving gross sexual imposition." so that the paragraph would read as follows:
Subsection (a)(2) allows character evidence of the victim of a crime to be introduced by an accused and evidence of peacefulness of a homicide victim by the prosecution to rebut evidence that the victim was the aggressor. A significant exception has been enacted to this general rule by
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the North Dakota Legislature with its adoption of § 12.1-20-14, NDCC, and § 12.1-20-15, NDCC, relating to cases involving gross sexual imposition.
Mr. Kraft seconded the motion. Motion CARRIED.
NOTE to RULE 404 - Paragraph 4
Judge Hodny MOVED to adopt paragraph 4 of the explanatory note to Rule 404, as follows:
Subsection (a)(3) provides that, in dealing with impeachment of a witness, Rules 607, 608, and 609 state the applicable rules. The present rule retains its force, and should be consulted whenever the witness is also a party whose actions are sought to be proved.
Mr. Kraft seconded the motion. Motion CARRIED.
NOTE to RULE 404 - Remaining paragraphs
Judge Hodny MOVED to adopt the remaining paragraphs of the explanatory note to Rule 404, as follows:
Section (b) restates the general rule, but continues to provide that character evidence offered for other purposes, e.g., motive, intent, or identity, is admissible. But the mere labeling of such evidence does not automatically bring admission. The North Dakota Supreme Court stated that "the mere invocation of an exception to the [character evidence] rule does not end inquiry, however. It only begins it." State v. Stevens, 238 N.W.2d 251, 257 (N.D. 1976).
In Stevens, the Supreme Court set forth criteria that should be considered whenever section (b) of this rule is invoked:
First, not all the purposes listed are of equal "weight." Citing McCormick on Evidence, § 190, p. 452, the court stated that "a much stricter showing of relevancy is required to prove identity or the doing of the criminal act by the accused, than when it is offered to prove knowledge, intent, or state of mind." Stevens, supra, at 257.
Second, the court required that such evidence be "clear and convincing."
Third, the court stated that "before such evidence may be considered at all, there must be
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proof of commission of the crime charged." Although there is some language in the opinion which would suggest otherwise, this requirement means that, before character evidence may be used for any purpose, independent evidence that the charged crime was committed must be present.
Finally, as a general proposition, the court stated that the question is "one of balancing the aims of full disclosure and fairness to the defendant where they are in conflict. . . . The problem is not one of pigeonholing, but of balancing, of discretion rather than following a rule." Stevens, supra, at 257, 258.
Mr. Kraft seconded the motion.
Mr. Higgins MOVED a substitute motion that the same changes be made as he had moved for in the first paragraph. Mr. Peterson seconded the motion. Motion LOST.
The question was on the motion of Judge Hodny, seconded by Mr. Kraft. Motion CARRIED.
NOTE on RULE 405
Judge Hodny MOVED to adopt the explanatory note on Rule 405, as follows:
Rule 405 deals only with the method of proving character, once the admissibility of the character evidence has been determined. The three methods approved by this rule are (1) reputation, (2) opinion, and (3) specific instances of conduct.
Of these three, evidence of a person's general reputation has been admissible to prove character in North Dakota, but there is some case law which implies that opinion evidence is not admissible. SeeState v. Nierenberg, 80 N.W.2d 104 (N.D. 1956). This rule abolishes the distinction between reputation and opinion evidence. Both are considered acceptable methods of proving character. This change has been advocated by commentators for some time, and is believed to reflect a more accurate view of the relative values of opinion and reputation evidence of character. As Wigmore has stated:
"The Anglo-American rules of evidence have occasionally taken some curious twistings in the course of their
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development; but they have never done anything so curious in the way of shutting out evidential light as when they decided to exclude the person who knows as much as humanly can be known about the character of another, and have still admitted the secondhand, irresponsible product of multiplied guesses and gossip which we term 'reputation.'" VII Wigmore on Evidence § 1986 at 167 (3d ed. 1940).
The third method of proving character, specific instances of conduct, is perhaps the most probative or revealing of the three, but it is also the most likely to create confusion or undue prejudice in the minds of triers of fact. For this reason, it is allowed only on cross-examination under section (a), or under section (b) in cases in which the character of a person is an essential element of a claim, charge, or defense. This use comports with present law. See McCormick on Evidence, § 187.
The motion was seconded by Mr. Peterson. Motion CARRIED.
GENERAL NOTE
Judge Burdick MOVED that all of the comments should be considered the Committee's comments and not the comments of the Supreme Court. The explanatory note should be entitled "PROCEDURE COMMITTEE NOTES." The motion was seconded by Judge Hodny. Motion CARRIED.
NOTE on RULE 406
Judge Vogel MOVED to defer action on the explanatory note to Rule 406. Mr. Kraft seconded the motion. Motion CARRIED.
NOTE on RULE 407
Mr. Higgins MOVED the adoption of the explanatory note on Rule 407 with these changes: Strike reference to the FRE note; strike the word "contributory" before the word "negligence"; strike the last sentence; strike the second paragraph; add VanOrnum cite to end of last paragraph. Mr. Kraft seconded the motion.
Mr. Peterson MOVED a substitute motion that we adopt the language through the numbered paragraphs, deleting everything following that, and insert "See generally, VanOrnum [citation]," so that the explanatory note would read as follows:
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This rule, excluding the use of subsequent remedial measures as evidence of negligence, is based on two grounds:
(1) The conduct is not an admission, since the conduct is equally consistent with injury by mere accident or through contributory negligence.
(2) The social policy of encouraging people to take steps in furtherance of added safety.
For instances in which the North Dakota Supreme Court refused to allow remedial measures to be used as proof of negligence see Van Ornum v. Otter Tail Power Co., 210 N.W.2d 188 (N.D. 1973), and Huus v. Ringo, 76 N.D. 763, 39 N.W.2d 505 (1949).
Judge Hatch seconded the motion. Motion CARRIED.
NOTE to RULE 408
Judge Hodny MOVED to adopt the explanatory note to Rule 408, as follows:
The policy underlying this rule is the furtherance of compromise and settlement of disputes among parties. The general rule as to compromises finds support in North Dakota case law [Larson v. Quanrud, Brink § Reibold, 78 N.D. 70, 47 N.W.2d 743 (1950) (Rehearing 1951)] and similar objectives have been fostered in the North Dakota Rules of Civil Procedure and by statute. Rule 68, NDRCivP, provides that an unaccepted offer of judgment is inadmissible in a proceeding except to determine costs. Chapter 32-39, NDCC, provides that a voluntary partial payment of a claim is inadmissible for the purpose of determining either the amount of a judgment or the liability of a party.
Admissions of independent fact or other evidence of statements or conduct disclosed in the course of a compromise negotiation are likewise protected by this rule. This marks a departure from the common law, in general, and from North Dakota case law. Larson v. Quanrud, Brink § Reibold, supra.
It is thought that open and effective discussions of compromise may be held only if
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the parties know in advance that they will not jeopardize their case by fully discussing all aspects of a claim. This does not mean, however, that the mere recital of evidence during a compromise negotiation precludes the admission of that evidence. The rule "does not require the exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations."
The purpose of the rule is accomplished by rendering inadmissible evidence of the liability of parties or validity of claims brought out in valid negotiations. Whenever the evidence is introduced for a purpose other than proving liability or validity, or when the claim is not really disputed (for example, when the intent is to persuade a creditor to accept a sum which is less than an admittedly due amount) the rule does not apply.
Judge Heinley seconded the motion. Motion CARRIED.
NOTE to RULE 409
Judge Hodny moved to adopt the explanatory note on Rule 409, as follows:
The general underpinnings of this rule are the same as those dealt with in Rules 407 and 408. A salutary action, the furnishing of medical or similar expenses is not to be discouraged by attaching to it the liability that would ensue were the fact to be admitted into evidence.
Unlike Rule 408, which protects statements made during compromise even if unrelated to the offer, Rule 409 protects only the act of furnishing or offering or promising to pay medical expenses. Statements made apart from the actual offer are not covered by the rule. There is no need to protect all discussion because discussion is not a necessary part of furnishing medical expenses.
It is likely that admissions will at times be so intertwined with an offer to furnish medical expenses that the two cannot be severed. Whenever this occurs, a choice must be made between admitting the evidence, totally, or excluding it. Balance must be made of the social policy behind this rule and the need for such evidence.
The motion was seconded by Judge O'Keefe. Motion CARRIED.
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RULE 410
Mr. Higgins MOVED to reconsider the action in adopting Rule 410 for the purpose of considering the Uniform Rule. Justice Vogel seconded the motion. Motion CARRIED.
Judge Burdick MOVED to amend Rule 410 by adding the following clause at the end of the Rule, "but only if in any case the statement was made under oath, on the record, and in the presence of counsel." Judge Hatch seconded the motion. Motion CARRIED.
Judge Hodny MOVED to adopt Rule 410, as follows:
RULE 410. Offer to Plead Guilty; Nolo Contendere;
Withdrawn Plea of Guilty.
Evidence of a plea of guilty, later withdrawn, or a plea of nolo contendere, or of an offer to plead guilty or nolo contendere to the crime charged or any other crime, or of statements made in connection with and relevant to any of the foregoing withdrawn pleas or offers, is not admissible in any civil or criminal proceeding against the person who made the plea or offer. This rule (((shall))) does not apply to the introduction of voluntary and reliable statements made in court on the record in connection with any of the foregoing pleas or offers where offered for impeachment purposes or in a subsequent prosecution of the declarant for perjury or false statement, but only if in any case the statement was made under oath, on the record, and in the presence of counsel.
Mr. Higgins seconded the motion. Motion CARRIED.
NOTE to RULE 410
Judge Hodny MOVED to defer consideration of the explanatory note to Rule 410 until the next meeting because of the re-adoption of Rule 410. Mr. Higgins seconded the motion. Motion CARRIED.
NOTE to RULE 411
Judge Hodny MOVED to adopt the explanatory note to Rule 411. Judge Heinley seconded the motion.
Mr. Higgins MOVED a substitute motion that the first sentence of paragraph 2 be moved to the top of the note; delete the second sentence of paragraph 2; delete the present first sentence of the first paragraph; and delete the third paragraph. Motion LOST for lack of a second.
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Judge Burdick MOVED a substitute motion that the note to Rule 411 be re-drafted in the light of the discussion. Mr. Higgins seconded the motion. Motion CARRIED.
Judge Hodny MOVED that Mr. Houdek make a study of Rule 411 in the light of the no-fault insurance law. Mr. Higgins seconded the motion. Motion CARRIED.
NOTE to RULE 501
Mr. Higgins MOVED to adopt the explanatory note to Rule 501, with the exception of the "Note to Committee Members" at the bottom of the page.
Judge Hodny MOVED that the explanatory note for Rule 501 be re-drafted and action on it deferred to the next meeting. Mr. Higgins seconded the motion. Motion CARRIED.
RULE 502
Mr. Higgins MOVED to reconsider Rule 502 so that Rule 502(a)(4), line 15, could be amended to read "employed with or without pay," strike "employed" and substitute "engaged." Judge Hodny seconded the motion. Motion LOST.
NOTE to RULE 502
Judge Hodny MOVED to adopt the explanatory note to Rule 502, and to add at the end of paragraph (4) "as used in this Rule the term 'employed' is not limited to those employed for compensation," so that it will read as follows:
Rule 502 is derived from Rule 502 of the Uniform Rules of Evidence (1974). The rule represents no major change in the attorney-client privilege as established and developed under prior law, although it does expand the application of the privilege to include communications made to, and between, lawyers' representatives as well as those made to lawyers themselves.
Section (a), Definitions.
(1) No comment.
(2) This subsection deals with representatives of clients. If the client is a natural person his. representatives are, in most cases, easily defined. However, if the client is a corporation or other entity, defining its representative is more difficult:
"When the client is a corporation, questions arise as to who 'speaks' for it for purposes of the privilege. Should
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a communication from any employee suffice? Or should the privilege apply only to communications from members of the 'control group,' i.e., those authorized to seek and act upon legal advice?" McCormick on Evidence § 87 at 178 (Cleary ed. 1972).
This subsection provides that a representative of a client is one "having authority to obtain professional legal services, or to act on advice rendered pursuant thereto, on behalf of the client." This authority would normally be vested in the "control group" faction of an organization, or in its delegates.
(3) No comment.
(4) If the benefits this rule of privilege offers to the judicial system--that is, a client's frank and open disclosure of facts to his attorney--are to be realized, then a client need be assured that confidential communications made to those necessarily involved in the rendition of legal services will not be disclosed. As used in this rule, the term "employed" is not limited to those employed for compensation.
(5) Historically, to be privileged, a communication to an attorney must have been made with the intent that it not be disclosed to third parties. See O'Connor v. Immele, 77 N.D. 346, 43 N.W.2d 649 (1950). This subsection, by its definition of "confidential," continues this rule.
Section (b) General rule of privilege.
The general rule of privilege stated here is intended to encompass all communications necessarily made in the rendition of legal services, not just those made between a client and his attorney.
Section (c) Who may claim the privilege.
The rule states, generally, that this privilege may be claimed by the client or his representative and that a lawyer and his representative are presumed to have authority to claim the privilege. It should be noted that Canon 4 of the Code of Professional Responsibility requires an attorney to claim this privilege.
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Section (d) Exceptions
(1) "Since the policy of the privilege is that of promoting the administration of justice, it would be a perversion of the privilege to extend it to the client who seeks advice to aid him in carrying out an illegal or fraudulent scheme." McCormick on Evidence § 95 at 199 (Cleary, Gen.Ed.; 2d ed. 1972).
(2) The privilege afforded by this rule is the client's; all other claimants have only derivative authority to assert the privilege. Thus, in an action to determine which party shall take through a deceased client, the action is not adverse to the deceased client and the justification for allowing the privilege is dissolved. In such cases, "The interest of the estate as well as the interest of the deceased client demand that the truth be determined." In re Graf's Estate, 119 N.W.2d 478 (N.D. 1963).
(3) In cases of dispute between attorney and client, the privilege does not apply. As to these parties, the communication could not have been intended to be confidential.
(4) As an attesting witness, an attorney may testify relevant to issues concerning the attested document, for as to these matters the attorney is not acting in his professional capacity. Consider also, in this regard, the "scrivener" exception to the privilege. O'Neill v. Murray, 6 Dak. 107, 50 N.W. 619 (1888).
(5) It cannot be said that communications made between or among joint clients were intended to be confidential as to those clients.
(6) This subsection provides, in the usual instance, that communications between a public officer and its attorneys are not privileged. Exception is made for those instances in which the court determines that disclosure will "seriously impair" the listed functions of the public agency.
Judge Hatch seconded the motion. Motion CARRIED.
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NOTE to RULE 503
Judge Burdick MOVED to adopt the explanatory note to Rule 503, as follows:
Rule 503 is modeled after Rule 503 of the Uniform Rules of Evidence (1974). The rule retains the physician-patient privilege which has long been provided by statute in North Dakota. The rule also provides that certain communications made to a psychotherapist or to a licensed psychologist are privileged.
Section (a). Definitions.
This section contains the definitions of the parties to the privilege and of the term "confidential." It should be noted that members of a patient's family are expressly included in that group of people to whom communications may be made without a waiver of the privilege, provided, of course, that the communications otherwise meet the requirements of the rule.
Section (b) General rule of privilege.
As to the general rule of privilege, note should be made of the fact that only those communications made "for the purpose of diagnosis or treatment" are privileged. This is a narrower privilege than under prior law, § 31-01-06, NDCC, which covered "any communication made by the patient in the course of professional employment."
Section (c) Who may claim the privilege.
The rule provides that the privilege may be claimed by the personal representative of a deceased patient. In actions where all parties are claiming through a deceased patient, the privilege has been held not to apply. Lembke v. Unke, 171 N.W.2d 837 (N.D. 1969).
Section (d) Exceptions.
(1) Subsection (1) provides that there is no privilege for communications relevant to an issue in hospitalization proceedings. "Such an exception is essential if the psychiatrist is to perform his role which will,
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in some instances, require that he use the material supplied by the patient as a basis for hospitalization." Goldstein and Katz, Psychiatrist-Patient Privilege: The GAP Proposal and the Connecticut Statute, 36 Conn. Bar J. 175 at 187 (1962).
The exception applies only to communications (a) relevant to an issue (b) in proceedings to hospitalize the patient for mental illness. As to communications not relevant to the subject of commitment, and in actions other than commitment proceedings, the privilege applies.
(2) In a court-ordered examination of a party or witness, the purpose usually is not for treatment or for diagnosis with a view toward treatment. Thus no professional relationship is created and the privilege does not attach to communications made in the course of those examinations.
(3) Condition an element of claim or defense. Whenever a patient brings his physical or mental condition into issue as an element of a claim or defense, there is no longer any reason to continue the privilege as the patient has voluntarily chosen to disclose certain aspects of the privileged communication. Nor is there justification for allowing the privilege to be used as a "sword," rather than a "shield." For a recent case holding that, under prior law, the privilege is waived by the initiation of a medical malpractice action, see Sagmiller v. Carlson, 219 N.W.2d 885 (N.D. 1974).
Judge Hatch seconded the motion. Motion CARRIED.
RULE 503
Mr. Higgins MOVED to reconsider the adoption of Rule 503. Mr. Kraft seconded the motion. Motion LOST.
APPROVAL OF MINUTES
Judge Hodny MOVED to approve the Minutes of the last meeting. Justice Vogel seconded the motion. Motion CARRIED.
MEETING DATE
Judge Burdick MOVED that the next meeting of the Special Procedure Committee be held September 23 and 24, 1976, commencing
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at 1:30 p.m. on September 23 and continuing for the full day on September 24, 1976. The motion was seconded by Justice Vogel. Motion CARRIED.
ADJOURNMENT
Justice Vogel MOVED to adjourn the meeting of the Special Procedure Committee. The motion was seconded by Judge Burdick. Motion CARRIED.
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Secretary