Joint Procedure Committee Meeting

Scheduled on Thursday, September 23, 1976 @ 2:30 PM

MINUTES OF MEETING

Joint Committee of the Judicial Council
and the State Bar Association
Special Procedure Committee

September 23-24, 1976

The meeting was called to order at 1:30 p.m., September 23, 1976, by Justice Paul M. Sand, Chairman.

ATTENDANCE

Members Present:

Hon. Eugene A. Burdick
Hon. James H. O'Keefe
Hon. Larry Hatch
Hon. Wm. S. Murray
Mr. Larry Kraft
Mr. Calvin N. Rolfson
Mr. David L. Peterson
Mr. Kent Higgins
Hon. Robert Vogel
Hon. Paul M. Sand

Staff Present:

Duane Houdek
Eveleen Klaudt

Also Present:

Christine Hogan
Prof. Jerry Davis

RULE 501

Mr. Higgins MOVED that under the list of statutes affected § 12.1-29-04, NDCC, be listed as considered rather than as superseded. Justice Vogel seconded the motion. Motion CARRIED.

Mr. Higgins MOVED that under the list of statutes affected § 14-12.1-22 remain as superseded. Justice Vogel seconded the motion. Motion CARRIED.

Mr. Higgins MOVED that under the list of statutes affected § 19-16.1-10 be listed as considered rather than as superseded. Mr. Peterson seconded the motion. Motion CARRIED.

Justice Vogel MOVED that under the list of statutes affected § 23-07-01.1 be listed as considered, rather than as superseded. Mr. Higgins seconded the motion. Motion CARRIED.

Mr. Higgins MOVED that under the list of statutes affected § 23-25-06 be listed as considered rather than superseded and that the same motion apply to Rule 507. Justice Vogel seconded the motion. Motion CARRIED.

Mr. Higgins MOVED that under the list of statutes affect § 27-05.1-14 be listed as considered rather than as superseded, and that the same motion apply to Rule 504. Mr. Rolfson seconded the motion. Motion CARRIED.

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Mr. Rolfson MOVED that under the list of statutes affected § 31-01-06(4), NDCC, be listed as considered rather than as superseded. Mr. Higgins seconded the motion. Motion CARRIED.

Mr. Higgins MOVED that under the list of statutes affected § 37-18-11(6)(b) be listed as considered rather than superseded. Judge Burdick seconded the motion. Motion CARRIED.

Therefore, the Procedure Committee Notes will read:

Statutes Affected:

Superseded: §§ 14-12.1-22, 31-01-02, 31-01-06(l), 31-01-06(2), 31-01-06(3), NDCC.

Mr. Peterson MOVED to strike the second sentence of the first paragraph of the commentary to Rule 501.

As a general principle, evidentiary privileges will be granted and applied in accordance with the provisions of these rules.

Certain statutory privileges, however, include matters beyond the proper scope of evidentiary rules, and others have been found to be in accordance with the philosophy of these rules. These statutes have been left undisturbed. Thus, the privilege against self-incrimination (§ 31-01-09, NDCC), and the privilege relating to grand jury testimony (§ 29-10.1-30, NDCC) and the privileges afforded qualified school counselors (§ 31-01-06.1, NDCC) and newsmen (§ 31-01-06.2, NDCC) all remain in effect under these rules.

RULE 502

Judge Burdick MOVED that § 50-25.1-10, NDCC, in the list of statutes affected be listed as considered rather than superseded. Mr. Rolfson seconded the motion. Motion CARRIED.

Mr. Peterson moved that Rule 35(b)(2), NDRCivP, in the list of Rules be listed as considered rather than as repealed. Mr. Rolfson seconded the motion. Motion CARRIED.

Therefore, the Procedure Committee Notes will read:

Statutes Affected:

Superseded: § 31-01-06(l), NDCC.

RULE 504

Judge Burdick MOVED that §§ 12.1-29-04 and 27-05.1-14, in the list of statutes affected be listed as considered rather than as superseded, and that § 14-12.1-22 be omitted. Mr. Rolfson seconded the motion. Motion CARRIED.

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Therefore, the Procedure Committee Notes will read:

Statutes Affected:

Superseded: § 31-01-02, NDCC.

Judge Murray MOVED to adopt the commentary on Rule 504, subject to style changes.

Rule 504 provides a husband-wife privilege, formerly provided by § 31-01-02, NDCC. The rule is substantially the same as Rule 504 of the Uniform Rules of Evidence (1974).

By the terms of the definition contained in subdivision (a), a communication is not "confidential" if it is intended to be disclosed to any person other than one's spouse. This would include one's children.

The intent with which a communication is made may determine whether it is confidential. If a communication is made privately, with the intent that it not be disclosed, it is confidential for the purposes of this rule even though it is overheard by an eavesdropper to the conversation. But cf. § 82, McCormick on Evidence (2d ed. 1972).

A major alteration in the husband-wife privilege, as it has existed in North Dakota, is occasioned by subdivision (b), which applies only to an accused in a criminal proceeding. Under prior law, the privilege was applicable, with certain exceptions, to criminal and civil actions.

Given the limited application of this rule, there can be no claim of privilege made by representatives of the holder of the privilege. Under subdivision (c), only the accused, or the spouse on behalf of the accused, may claim the privilege.

The exceptions listed in subdivision (d), or at least the instances in which one spouse commits a crime against the other or a child or either, have been said to be based upon necessity, i.e., a necessity to avoid the injustice which would occur should the privilege be granted in these instances. This is, however, an inadequate explanation, for injustice may be said to occur in any case in which evidence is suppressed by privilege.

The real basis for the exceptions, as Wigmore has cogently stated [VIII Wigmore on Evidence § 2239 (McNaughton rev. 1961)], is that in these instances the very reason for the privilege is lacking. The social policy behind the husband-wife privilege is to promote or, at least, to avoid disrupting marital harmony. In proceedings in which a spouse is accused of committing a crime against (1) the other, (2) a child of either, (3) a member of either household, or (4) a third person, in the course of committing a crime against any of them, it can hardly be said that allowing a spouse to testify against the other will disrupt an

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otherwise compatible relationship. In those cases, the theoretical basis for the privilege should not be blindly followed to the needless detriment of the administration of justice.

RULE 505

Judge Burdick MOVED to adopt the Procedure Committee Notes, subject to style changes.

Statutes Affected:

Superseded: § 31-01-06(2).

Rule 505 follows the language of Rule 505 of the Uniform Rules of Evidence (1974). It provides the privilege that has been traditionally termed the "priest-penitent" privilege, although it does so in a form that gives the privilege a somewhat wider scope.

Originally, this privilege was granted only to penitents and priests, and then only if the communication was made in confession, an institution of the Catholic Church which is cloaked with absolute secrecy. Gradually, the application of the privilege was broadened; before the promulgation of this rule, North Dakota statutory law protected communications made to a "clergyman or priest," but only if the communications were made in "confession."

Subdivision (a)(1) makes it clear that the privilege applies not only to certain named members of the clergy, but also to "other similar functionar[ies] of a religious organization." It will be the function of the courts to determine whether, in a given case, the status of the spiritual adviser is such that invocation of the privilege is warranted.

Under subdivision (a)(2), a communication may be deemed confidential even though other persons are present, but only if the person's presence is necessary to further the purpose of the communication.

The general rule of privilege contained in subdivision (b) protects from disclosure communications made to a clergyman "in his professional character as spiritual adviser." Thus, although the privilege is no longer confined to the confessional, it must be made to a clergyman acting in his professional capacity.

In keeping with the belief that there may be occasions in which it is appropriate for a guardian or personal representative to claim a privilege, subdivision (c) provides for these parties to make the claim on behalf of the holder. The clergyman may, of course, claim the privilege on behalf of the communicant.

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Mr. Rolfson seconded the motion. Motion CARRIED.

RULE 506

Judge Burdick MOVED to adopt the Procedure Committee Notes, subject to style changes.

Rule 506 is taken from the Uniform Rules of Evidence (1974) and promotes the right of secrecy of the ballot which is secured by § 129 of the Constitution of North Dakota.

Subdivision (a)(1) states the general rule of privilege. Because the privilege to refuse to disclose the tenor of a secret ballot confers a benefit to the institutions of government as well as to the individual elector, it has been argued that, as a matter of public policy, a party to litigation should be allowed to claim error if the privilege is denied. See, e.g., the dissenting opinion of Christianson, C.J., in Torkelson v. Byrne, 68 N.D. 13, 276 N.W. 134 at 142 (1937).

Despite this argument, it has generally been accepted that the rule is one of personal privilege, rather than one of exclusion. The distinction is material: As a personal privilege, the protection conferred may be waived by the holder; furthermore, it may be claimed only by the elector. Rule 506 follows the generally accepted theory and grants a personal privilege to refuse to disclose the tenor of one's ballot. This is in accord with the case law in North Dakota. See Wehrung v. Ideal School District No. 10, 78 N.D. 68 (N.D. 1956); Torkelson v. Byrne, 68 N.D. 13, 276 N.W. 134 (1937).

Of course, if the privilege is erroneously granted, the adverse party may object in his capacity as a litigant, but this is a claim apart from those made by the holder of the privilege.

Subdivision (b) states that if the vote was cast illegally, or if the court finds that disclosure is proper pursuant to the election laws of this State, then this privilege does not apply. This reaffirms the practice that has been developed and followed in this State. See Torkelson v. Byrne, supra.

Mr. Rolfson seconded the motion. Motion CARRIED.

RULE 507

Judge Burdick MOVED to adopt the Procedure Committee Notes, subject to style changes.

Rule 507 is an adoption of its counterpart in the Uniform Rules of Evidence (1974). It provides

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a limited privilege to protect from disclosure that group of confidential facts necessary to the internal operation of a business entity.

The instances in which the invocation of this privilege is justified are few, given the comprehensive application of public registration, patent and copyright laws and given the nature of the lawsuits in which the privilege is likely to be asserted. There is no need to invoke the privilege in those cases in which public registration laws provide adequate protection of ideas or products; the privilege should not be allowed in those cases in which knowledge of business practices is essential to the determination of the relevant issues being tried, for example, in cases involving unfair trade practices.

Therefore, the rule provides that the privilege may be claimed, but only "if the allowance of the privilege will not tend to conceal fraud or otherwise work injustice." In so framing this rule of privilege, the admonition of Dean Wigmore is heeded:

". . . the occasion necessity of recognizing it [a trade secrets privilege] should not blind us to the danger of such a measure, or entice us into an unqualified sanction for such a demand." 8 Wigmore on Evidence § 2212(3) at 155 (McNaughton rev. 1961).

Once the decision to require disclosure is made by the trial judge, the ultimate sentence of this rule gives the judge freedom to direct disclosure in a manner that recognizes the interest of the holder of the privilege and balances this interest against the interests of the parties and of justice. The rule does not prescribe any certain method to be utilized; the matter is one within the trial judge's discretion. It would seem that the variety of interests might often be served through the use of in camera disclosures in the presence of only those to whom the information is necessary to the conducting of the trial.

The motion was seconded by Mr. Rolfson. Motion CARRIED.

RULE 508

Judge Burdick MOVED to amend the Procedure Committee Notes by striking, on page 5, the following: "Broadly speaking, lawsuits may be divided into two categories for the purpose of this subsection: (1) those in which the holder of the privilege (the government) is a party, and (2) those in which the government is not a party.", and when so amended to adopt the Note:

Rule 508 is taken from the Uniform Rules of Evidence (1974). The rule does not create a governmental privilege,

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but rather recognizes and incorporates such privileges as have been, or may be, provided by the laws of the United States or of North Dakota.

Subdivision (a) provides that privileges created by federal law, which must be recognized by state courts, may be claimed in North Dakota in the manner provided by federal law.

Of the federal privileges which must be recognized in North Dakota, the one of most importance to the law of evidence is that commonly known as the "executive privilege." This is not a general privilege on the part of executive officials to refuse to testify; that privilege does not exist, for, as Wigmore has stated of the chief executive of a state: "His temporary duties as an official cannot override his permanent and fundamental duty as a citizen and as a debtor to justice [to give evidence]." 8 Wigmore on Evidence § 2370 at 748 (McNaughton rev. 1961). Rather, the application of the privilege is limited to two distinct instances: (1) secrets of state, which include military secrets and matters of national security; and (2) official communications, which encompass other matters and are privileged in certain instances because of the confidentiality necessary to the operation of a co-equal branch of government.

The privilege protecting secrets of State is one "well established in the law of evidence." United States v. Reynolds, 345 U.S. 1, 73 S.Ct. 528, 97 L.Ed. 727 (1953). It is in this area that the greatest deference is given to the executive.

The privilege protecting official, confidential communications is somewhat more amorphous. Clearly, it applies to the confidential communications of the President and his close advisers, and as to these, at least, is said to have "constitutional underpinnings." United States v. Nixon, 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974). And yet, even at this level, the claim of confidentiality does not afford the protection that encloses secrets of State. There are instances in which the privilege must yield:

"We conclude that when the ground for asserting privilege as to subpoenaed materials sought for use in a criminal trial is based only on the generalized interest in confidentiality, it cannot prevail over the fundamental demands of due process of law in the fair administration of criminal justice. The generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial." United States v. Nixon, supra, 418 U.S. 713.

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The holding of the Nixon case was expressly limited to evidence for which a specified need in a criminal trial could be shown. What the decision would be in cases in which evidence was sought for use in a civil trial, or in cases in which lesser officials were involved, remains an open question. It may be stated with assurance, however, that the decision will be reached by balancing conflicting interests rather than by application of an absolute privilege.

The ultimate phrase of subdivision (a) provides that "the privilege may be claimed as provided by the law of the United States." This confronts the North Dakota courts with an attendant problem which has long troubled the federal judiciary: To what extent is the trial judge involved in the determination of whether certain information is privileged? As a basic premise, it may be stated that the courts have not departed from the philosophy inherent in Chief Justice Marshall's statement that "It is emphatically the province and duty of the judicial department to say what the law is." Marbury v. Madison, 1 Cranch, 137, 177 (1803). This is certainly true with respect to communications claimed to be privileged on the basis of confidentiality. In these cases it is appropriate for the trial judge to review, in camera, the information asserted to be privileged, and to excise and protect from disclosure those portions deserving of privilege. United States v. Nixon, supra.

There may be cases, however, in dealing with secrets of state, in which the information claimed to be privileged is so sensitive that even review of the information by a judge alone, in camera, would be inappropriate. United States v. Reynolds, supra. In those cases, the trial judge must decide the issue without the benefit of viewing the information itself.

If the court is satisfied, "from all the circumstances of the case, that there is a reasonable danger that compulsion of the evidence will expose military matters which, in the interests of national security, should not be divulged," the privilege should be granted without further inquiry. United States v. Reynolds, supra, at 10.

If the court decides that the privilege does not apply, any order requiring disclosure should allow for appeal to be taken so as to avoid possible injustice.

Subdivision (b) provides that the only privileges that will be recognized, other than those of federal origin, are those created by the North Dakota Constitution or by North Dakota statutes.

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The North Dakota Constitution, like its federal counterpart, contains no provision for an executive privilege. Presumably, however, the "constitutional underpinnings" of the privilege (constitutional separation of powers and the implied power to carry out enumerated duties) which were recognized on the federal level in United States v. Nixon, supra, could be said to be present under North Dakota laws. The North Dakota Constitution does provide for a limited legislative privilege in § 42, which is known as the "speech and debate" clause. This provision, which operates as more of a means of insulating legislators from substantive liability than as an evidentiary privilege, states that: "For words used in any speech or debate in either house, they [the legislators] shall not be questioned in any place."

By statute in North Dakota, a public officer "cannot be examined as to communications made to him in official confidence when the public interests would suffer by the disclosure." § 31-01-06(4), NDCC. Although this statute has not been judicially construed in North Dakota, statutes of similar wording have been said to create a privilege for "official information," those confidential communications made in the course of governmental operations which do not qualify as secrets of state. 8 Wigmore on Evidence § 2378 (McNaughton Rev. 1961).

In addition to the general privilege of § 31-01-06, NDCC, the North Dakota legislature has shielded certain specific information from disclosure. For example, as to motor vehicle accident reports, it is stated in § 39-08-14, NDCC: "No written reports or written information mentioned in this section shall be used as evidence in any trial, civil or criminal . . . ." In this and other "secrecy statutes," the legislature has made an express determination that the candor and accuracy of official reports which is gained by making those reports confidential outweighs the assistance to judicial proceedings disclosure might bring.

The privileges those statutes provide remain undisturbed under this rule.

Subdivision (c) directs the trial judge, in cases in which a sustained claim of privilege deprives a party of material evidence, to "make any further orders the interests of justice require . . . ." The balance of the subdivision lists, by way of example and not of limitation, some devices which may be involved. The particular order issued would depend, inter alia, upon the nature of the case and the prejudice to a party occasioned by the exclusion of evidence. As stated in the Advisory Committee's Note to Federal Rule 509 (the Secrets of State rule which was deleted prior to passage of the Federal Rules):

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"Reference to other types of cases serves to illustrate the variety of situations which may arise and the impossibility of evolving a single formula to be applied automatically to all of them. The privileged materials may be the statement of government witness, as under the Jencks statute, which provides that, if the government elects not to produce the statement, the judge is to strike the testimony of the witness, or that he may declare a mistrial if the interests of justice so require. 18 U.S.C. § 3500(d). Or the privileged materials may disclose a possible basis for applying pressure upon witnesses. United States v. Beekman, 155 F.2d 580 (2d Cir. 1946). Or they may bear directly upon a substantive element of a criminal case, requiring dismissal in the event of a successful claim of privilege. United States v. Andolschek, 142 F.2d 503 (2d Cir. 1944); and see United States v. Reynolds, 345 U.S. 1, 73 S.Ct. 528, 97 L.Ed. 727 (1953). Or they may relate to an element of a plaintiff's claim against the government, with the decisions indicating unwillingness to allow the government's claim of privilege for secrets of state to be used as an offensive weapon against it. United States v. Reynolds, supra; Republic of China v. National Union Fire Ins. Co., 142 F.Supp. 551 (D.Md. 156)."

As may be seen, the parties to a lawsuit and their roles as plaintiff or defendant will have an effect on the question of what remedial order, if any, should be issued.

In cases in which the government is a party, the considerations involved in issuing a remedial order under this section will vary according to the government's position in the case. In a criminal prosecution, exclusion of privileged evidence may warrant dismissal, for the government should not be allowed to convict a defendant without full disclosure of potentially exculpatory evidence. In a case brought against the government, the claim of privilege should not operate as an "offensive weapon" against the government.

In cases in which the government is not a party, the considerations upon which a remedial order is based may be less clear. In fact, under the proposed federal rule, no remedial order could issue in cases in which the government was not a party. See Rule 509, Deleted and Superseded Materials, Federal Rules of Evidence Pamphlet (West Pub. Co. 1975). Despite the argument made under

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the proposed federal rule that the excluded evidence should be treated as simply unavailable, as in the case of a successful claim of the self-incrimination privilege, it is felt that there is no reason to withhold a remedy if one can be reasonably afforded. However, this subdivision should be applied with caution in those cases in which the government is not a party; in attempting to remedy the injustice worked upon the proponent of such evidence, the rights of the opposing party should not be made to suffer unduly.

Mr. Murray seconded the motion. Motion CARRIED.

RULE 509

Judge Burdick MOVED to adopt the Procedure Committee Notes, subject to style changes.

Rule 509, modeled after Rule 509 of the Uniform Rules of Evidence (1974), protects, in certain instances, the identity of one who furnishes information that aids the government in the investigation of violations of the law. The need for a privilege of this nature is clear. As McCormick has stated:

"Informers are shy and timorous folk, whether they are undercover agents of the police or merely citizens stepping forward with information about violations of law, and if their names were subject to be readily revealed, this enormously important aid to law enforcement would be almost cut off." McCormick on Evidence § 111 at 236 (2d ed. 1972).

Thus, subdivision (a) grants a privilege that protects the identity of an informer. Although often called the "informer's privilege," the true holder of the privilege is the governmental entity to which the information is furnished. The privilege protects only the identity of the informer and not his communication, except to the extent that protection of the contents of the communication is necessary to preserve the informer's anonymity. 8 Wigmore on Evidence § 2374 at 765 (McNaughton rev. 1961).

Invocation of the privilege is most likely to occur in the context of a criminal proceeding, but the privilege is not limited to those proceedings. Prosecutions of civil violations and investigations by legislative bodies may include the use of informers and the possibility of reprisal against them. The privilege is extended to protect the informer's identity in those situations.

Subdivision (b) provides that the privilege may be claimed by "an appropriate representative" of the entity

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to which the information was given. Normally, this representative will be counsel. However, in cases in which neither the United States nor the State of North Dakota is a party, other representatives should be accepted as proper claimants. See Advisory Committee's Note to Rule 510, Deleted and Superseded Materials, Federal Rules of Evidence Pamphlet (West Pub. Co. 1975).

Subdivision (c)(1) lists two instances in which the privilege does not apply. The first is whenever the identity of the informer or his interest in the subject matter of the communication "has been disclosed to those who would have cause to resent the communication." This language, taken from the landmark opinion of Roviaro v. United States, 353 U.S. 53, 60, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957), is designed to remove the privilege in those cases in which the identity of an informer is already known to those from whom it was to be shielded, and, at the same time, to leave the privilege intact whenever disclosure is otherwise made, e.g., to other enforcement authorities.

Disclosures may be made by the government or by the informer himself. Allowing the informer, who is not the holder of the privilege, essentially to "waive" its protection is a minor departure from the law of privileges for, normally, only a holder or his representative may effect a waiver. The nature of this particular privilege and the practical necessities involved dictate this result; the government could not reasonably restrain an informer's desire to disclose his identity.

The second exception stated in this subsection is that the privilege is inapplicable whenever the informer appears as a witness for the government. This exception is of constitutional origin. A defendant may not be denied his rights to confrontation of witnesses and to due process of law on the basis of an informer's privilege. Smith v. Illinois, 390 U.S. 129, 88 S.Ct. 748, 19 L.Ed.2d 956 (1968).

Subdivision (c)(2) states that the general rule of privilege does not apply whenever it appears that the 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." The doctrine supporting the exception is essentially one of fairness. In each case, or at least in criminal prosecutions, a balancing of the conflicting interests must be made:

"The problem is one that calls for balancing the public interest in protecting the flow

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of information against the individual's right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer's testimony, and other relevant factors." Roviaro v. United States, supra, 353 U.S. 62.

In Roviaro, the informer was also a participant in the crime. Since that decision, participation in the crime has been deemed to be a critical factor in the decision of whether disclosure of an informer's identity should be required. See United States v. Clark, 482 F.2d 103 (5th Cir. 1973). See generally, the cases collected in 2 Wright, Federal Practice and Procedure, § 406 (1969). An informer's participation in a crime will be a factor to consider under this rule, not in and of itself, but as it bears upon the relevancy and significance of the informer's potential testimony.

If it appears that an informer may be able to give relevant testimony and the government, when informed of this fact, invokes the privilege, this rule provides the procedure by which the validity of the claim is to be tested. The court shall review, in camera, the facts relevant to determining whether relevant information may be obtainable from the informer. This limited intrusion into what may be privileged material is deemed to be the most equitable manner of balancing the conflicting interests involved.

If the court finds that disclosure is in order and the government refuses to reveal the informer's identity, the court, in its discretion, may grant appropriate relief, as delineated in the rule.

Mr. Rolfson seconded the motion. Motion CARRIED.

RULE 510

Judge Burdick MOVED that the Procedure Committee Notes be adopted, subject to style changes.

Statutes Affected:

Superseded: § 31-01-07, NDCC.

This rule merely states in express terms that which is inherent in the preceding rules of privilege.

The rules of privilege are designed to foster certain relationships or policies that are deemed important to our society. The rules seek to accomplish

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this end by enveloping selected communications with the necessary degree of confidentiality.

If the holder of a privilege voluntarily discloses that which is privileged, there remains no theoretical or practical basis for maintaining the privilege and thereby depriving the judicial system of what may be relevant evidence. The privilege, however, is not to be revoked automatically following any disclosure, however peripheral to the substance of the communications being protected. The disclosure must be of a "significant part of the privileged matter." The determination of what is significant must be made with a common sense approach. If the substance of the privileged material is disclosed, the privilege should be revoked. Otherwise, it should remain intact.

Mr. Rolfson seconded the motion. Motion CARRIED.

RULE 511

Justice Vogel MOVED to adopt the Procedure Committee Notes, subject to style changes.

Under Rule 510, a voluntary disclosure of privilege material operates as a waiver of a given privilege. This rule provides for a contrary result whenever the disclosure is erroneously compelled or is made without opportunity by the holder to claim the privilege.

The rule will most often operate as a rule of exclusion, i.e., it will render inadmissible evidence of the prior disclosure in a civil or criminal action to which the holder of the privilege is a party. But, the rule does more than prohibit the use of such evidence against the holder of the privilege, it provides that the privilege shall remain intact, to be treated as originally granted. Thus, the holder, as a witness, may claim the privilege in an action to which he is not a party. Cf. The proposed Federal Rule 512, Deleted and Superseded Materials, Federal Rules of Evidence Pamphlet (West Pub. Co. 1975).

The need for a protective rule of this type is clear with respect to disclosures erroneously compelled. Whether the compulsion is judicial or comes from some other authority, the rules of privilege should not be left open to circumvention by their very breach.

The second basis for exclusion is meant to deal with those instances in which disclosure is made by someone other than the holder of the privilege. This would include disclosure by a recipient of privileged

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information (e.g., a lawyer), one allowed to transmit privileged information (e.g., a lawyer's representative), or an eavesdropper, among others.

It may be argued that once disclosure by a third party is made, the need for confidentiality ceases and, therefore, the privilege should not be maintained. However, with the increasing number and sophistication of intrusions into individual privacy, it is necessary to guard jealously those confidential communications deemed of such social importance as to warrant being privileged. This provision will maximize the effect of a given privilege, although, as may be argued, it cannot totally repair a breach of confidentiality.

Judge Burdick seconded the motion. Motion CARRIED.

RULE 512

Justice Vogel MOVED to adopt the Procedure Committee Notes, subject to style changes.

Subdivision (a) states the general policy of these rules, which is that no comment shall be made upon, nor any inference drawn from, a claim of privilege. This area of the law of privileges is one of dispute, with some courts holding that an inference may be drawn from a claim of privilege, presumably on the basis that the suppression of relevant evidence by a party should be noticed and considered by a jury. See McCormick on Evidence § 76 (2d ed. 1972). That this argument has some merit is recognized; however, it is believed that the position taken in this rule is based upon more weighty considerations, the essence of which have been stated by Lord Chelmsford:.

"'The exclusion of such [privileged] evidence is for the general interest of the community, and therefore to say that when a party refuses to permit professional confidence to be broken, everything must be taken most strongly against him, what is it but to deny him the protection which, for public purposes, the law affords him, and utterly to take away a privilege which can thus only be asserted to his prejudice?' Wentworth v. Lloyd, 10 H.L.Cas. 589, 591 (1864)," quoted in McCormick on Evidence § 76 at 155, 156 (2d ed. 1972).

McCormick concludes his discussion on the subject by stating:

"It is submitted that the best solution is to recognize only privileges which are

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soundly based in policy and to accord those privileges the fullest protection." McCormick on Evidence, supra, at 156.

This is the approach taken by these rules, and the result is in accord with the case law of North Dakota. State v. Bell, 67 N.D. 382, 272 N.W. 334 (1937); Meyer v. Russell, 55 N.D. 546, 214 N.W. 857 (1927).

Subdivision (b) is an effort to further the announced policy of this rule by providing that claims of privilege should be made, where practicable, outside the hearing of the jury. In most cases this will be easily accomplished, as it will often be known in advance of trial that a privilege will be claimed. (In this regard, note the case of State v. Bell, supra, in which the practice of forcing a holder to claim a privilege in the presence of the jury was, if not accepted, held not to constitute prejudicial error.)

Subdivision (c) provides that a party against whom the jury may draw an adverse inference from a claim of privilege may have, as a matter of right, an instruction that no inferences may be drawn. This is intended to provide a partial remedy in those instances in which disclosure to the jury of a claim of privilege cannot be reasonably avoided. The instruction may be requested by a party, whether the privilege is being claimed by him or by a witness, if the party will be the subject of an adverse inference arising from the claim of privilege.

Mr. Murray seconded the motion. Motion CARRIED.

RULE 601

Mr. Higgins MOVED that § 31-01-01, NDCC, be added to the list of Statutes Superseded. Mr. Rolfson seconded the motion. Motion CARRIED.

Mr. Peterson MOVED to adopt the Procedure Committee Notes, subject to style changes.

Statutes Affected:

Superseded: §§ 31-01-01, 31-01-03, 31-01-04, 31-01-05, NDCC.

The essential thought underlying this rule is that, generally, the evaluation of a witness should be made by the trier of fact, through a determination of the weight and credibility of that witness' testimony, rather than by the prior imposition of standards of competency. Thus, there are no standards put forth relating to mental or moral competency in these rules.

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(Cf. State v. Oliver, 78 N.D. 341, 49 N.W.2d 564 (1951), wherein it was held that competency is to be determined as a matter of law, considering the witness' intelligence, ability to discern truth and falsehood, and recognition of the obligation of his oath.) The trial judge will retain a certain amount of control over the "evaluation" of a witness in his review of the sufficiency of the evidence.

Neither this rule nor any of the rules of this code contain a "Dead Man's" statute. This represents a departure from former North Dakota law. The former "Dead Man's" statute, § 31-01-03, NDCC, and by reference § 31-01-04 and § 31-01-05, NDCC, are superseded by adoption of these rules.

Judge Burdick seconded the motion. Motion CARRIED.

RULE 602

Justice Vogel MOVED to adopt the Procedure Committee Notes, subject to style changes.

This rule deals with the competency of a witness, but only in a most basic sense. The requirement of personal knowledge is deeply embedded in the common law. [See, generally, McCormick on Evidence, § 10, (2d ed. 1972)], and is established in North Dakota case law. See Teagarden v. Dahl, 138 N.W.2d 668 (N.D. 1965).

The rule states that a witness may not testify "unless evidence is introduced sufficient to support a finding" that the witness has personal knowledge. This gives the trial judge the power to reject testimony if he finds, as a matter of law, that no reasonable juror could believe that the witness perceived the event about which he is testifying.

The last sentence is intended to avoid any confusion which might otherwise arise concerning the relative requirements of this rule and Rule 703. This rule is subordinate to Rule 703, which does not require that an expert opinion be based on the expert's own perception.

Mr. Kraft seconded the motion. Motion CARRIED.

RULE 603

Mr. Peterson MOVED that § 31-01-22, NDCC, under "Statutes Affected" be considered, not superseded; and that Rule 43(d), NDRCivP, under "Rules" be considered, not repealed. Mr. Rolfson seconded the motion. Motion CARRIED.

Justice Vogel MOVED to adopt the Procedure Committee Notes, subject to style changes.

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This rule makes no change in present North Dakota practice. Section 31-01-22, NDCC, requires that a witness make an oath or affirmation before testifying and Rule 43, NDRCivP, provides that whenever an oath is required an affirmation may be substituted.

Mr. Rolfson seconded the motion. Motion CARRIED.

RULE 604

Justice Vogel MOVED that § 31-01-11, NDCC, under "Statutes Affected" be considered, not superseded. Mr. Rolfson seconded the motion. Motion CARRIED.

Judge Burdick MOVED that the Procedure Committee recommend to the Legislature that § 31-01-11, NDCC, be revised to apply to qualified persons and eliminate the residency requirement. Mr. Murray seconded the motion. Motion CARRIED.

Mr. Peterson MOVED to adopt the Procedure Committee Note, subject to style changes.

This rule merely includes within the evidence code that which exists in North Dakota law. Section 31-10-11, NDCC, provides for the appointment of interpreters and for their oath; Rule 28(b), NDRCrimP, provides for the appointment of interpreters.

Judge Burdick seconded the motion. Motion CARRIED.

RULE 605

Judge Burdick MOVED to adopt the Procedure Committee Notes, subject to style changes.

Statutes Affected:

Superseded: § 31-01-10, NDCC.

This rule provides that a judge is wholly incompetent to testify in a trial over which he is presiding. This changes the North Dakota practice, which allowed the judge to testify and gave the judge discretion to order the trial to be held before another judge or jury. Section 31-01-10, NDCC. This concept of "discretionary" incompetency was rejected as involving practical problems in the conduct of a trial should the judge decide to continue hearing the case, e.g., can the judge rule on his own testimony? It was also felt that, in the words of McCormick, a judge's "role as a witness is manifestly inconsistent with his customary role of impartiality in the adversary system of trial." McCormick on Evidence § 68, p. 147 (2d ed. 1972).

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Justice Vogel seconded the motion. Motion CARRIED.

RULE 606

Judge Burdick MOVED that, under "Statutes Affected," §§ 21-21-18 and 31-01-10, NDCC, be left as superseded; and that under "Rules," Rule 59(b)(2), be considered rather than repealed. Justice Vogel seconded the motion. Motion CARRIED.

Mr. Rolfson MOVED to amend the Procedure Committee Notes on the second page, sixth line, after the word "chance," add the words "including a 'quotient' verdict in which the jurors agree in advance to be bound"; and that a reference be made to NDJI # 892 in the Research Aids, and that when so amended that the Procedure Committee Notes be adopted, subject to style changes.

Statutes Affected:

Superseded:, §§ 29-21-18, 31-01-10, NDCC.

Subdivision (a) prohibits a juror from testifying in a case in which he is sitting. Many of the practical and theoretical problems that are present when a judge testifies are also present when a juror does so. The impartiality with which the trier of fact should consider evidence is immeasurably damaged whenever a juror presents evidence for one of the parties to a lawsuit. This rule represents a change from prior law which allowed a juror to testify (§ 31-01-10, NDCC), but will likely have little effect on practice, as the process of jury selection has kept out of the jury box those who possess information relative to the determination of a lawsuit.

Subdivision (b) comports with existing North Dakota law by prohibiting a juror from testifying as to the mental processes inherent in arriving at a verdict but allowing jurors to testify as to whether outside influences were brought to bear upon a juror, or whether the verdict was arrived at by chance.

In Grenz v. Werre, 129 N.W.2d 681 (N.D. 1964), the Supreme Court, relying on Rule 59(b)(2), NDRCivP, stated that affidavits of jurors may be used to show that a verdict has been arrived at by chance, but not to show the mental processes of the jury in reaching their verdict. In James Turner § Sons v. Great Northern Ry. Co., 67 N.D. 347, 272 N.W. 489 (1937), the Supreme Court stated that a juror may testify as to outside influences but not as to matters that inhere in the verdict.

The rationale of these cases, and of this rule, is to further free deliberation in the jury room by protecting from disclosure the manner in which a verdict was reached, and to promote finality of verdicts. At

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the same time, considerations must be given to the arrival of a just result in each particular case. Where a verdict is reached because of extraneous, prejudicial information or outside influence, much of the reason for disallowing a juror to testify disappears, and the balance is weighted in favor of obtaining justice in the individual case. Justice also requires disclosure whenever a verdict is arrived at by chance, including a "quotient" verdict, in which the jurors agree in advance to be bound. Although the view has been criticized [see Weinstein § Berger, 3 Weinstein's Evidence, ¶ 606[04] (1975)], it is felt that reaching a verdict by chance is an extreme irregularity which replaces deliberation rather than being a part of it and, as such, should be disclosed.

Justice Vogel seconded the motion. Motion CARRIED.

RULE 607

Mr. Higgins MOVED that Rule 43(b), NDRCivP, be listed as "considered," not "repealed." Judge Burdick seconded the motion. Motion CARRIED.

Justice Vogel MOVED to adopt the Procedure Committee Notes, subject to style changes.

This rule does away with the prohibition against impeaching one's own witness. The rule against impeaching one's own witness has long been criticized (see 3 Weinstein's Evidence ¶ 607[01] at 607-7, 607-8 (1975)] and was abandoned at the federal level as being "based on false premises. A party does not hold out his witness as worthy of belief, since he rarely has a free choice in selecting them." Advisory Committee Note to Rule 607, FRE. Furthermore, the abolition of the rule in criminal cases is probably constitutionally required. See Chambers v. Mississippi, 410 U.S. 284, 13 S.Ct. 1058, 35 L.Ed.2d 297 (1973).

Allowing a party to impeach his own witness represents a change from past North Dakota cases, although the Supreme Court has strongly indicated its disfavor with the "voucher" rule:

"While North Dakota has recognized the 'voucher rule' that one is presumed to vouch for the truthfulness of his own witness [George v. Triplett, 5 N.D. 50, 63 N.W. 891 (1895)] we have permitted cross-examination of one's own witnesses in case of surprise [George v. Triplett, supra], and contradiction of one's own witnesses by other witnesses [Jacobson v. Mutual Benefit H. § A. Association, 70 N.D. 566, 296 N.W. 545 (1941)], as well as

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the calling of a witness as a court witness, thereby permitting cross-examination by both sides. See Hefty v. Aldrich, 220 N.W.2d 840 (N.D. 1974). The 'voucher rule' will be rejected entirely if the newly proposed Federal Rules of Evidence are adopted. See Rule 607. It should be. Wigmore calls it 'a primitive notion, resting on no reason whatever, but upon mere tradition . . .' IIIA Wigmore on Evidence, Chadbourn Edition, Sec. 898.

"The true extent of the 'voucher rule' is probably simply that the party calling a witness is likely to be held responsible for the testimony of that witness in the eyes of the judge or jury, and jury arguments to that effect can be made, but the rule should never be used to prevent cross-examination of a witness who is adverse or hostile or one whom a party is required to call by the necessities of the case." State v. Hilling, 219 N.W.2d 164, 172 (N.D. 1974).

Mr. Higgins seconded the motion. Motion CARRIED.

RULE 608

Justice Vogel MOVED to adopt the Procedure Committee Notes, subject to style changes.

Rule 608 is taken from Rule 608 of the Federal Rules of Evidence. It develops the exception stated in Rule 404 to the general prohibition against use of character evidence by allowing evidence of a witness' truthful or untruthful character to support or attack his credibility. As stated in the explanatory note to Rule 405, allowing the use of opinion evidence of character represents a change in North Dakota practice.

Mr. Higgins seconded the motion. Motion CARRIED.

RULE 609

Judge Burdick MOVED to adopt the Procedure Committee Notes, subject to style changes, and to cite State v. Pfaffengut, 77 N.W.2d 521 (N.D. 1956).

Rule 609 is taken from the Uniform Rules of Evidence (1974) and has been modified only for the purpose of clarification. In subdivision (b), the phrase "unless the witness is still in confinement for that conviction" was added to make it clear that where there is no release the expiration of

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the ten-year period will not bring a confined witness under this section. Subdivision (c) was modified by adding the words "is vacated" in paragraph (1). This was done to assure that cases involving deferred imposition of sentences would be covered.

This rule varies from Federal Rule 609 in that the Federal rule gives a court discretion, in subdivision (b), to extend the ten-year period during which evidence of a conviction may be admitted. Under this rule, the court has no discretion in the matter.

The general rule stated in Rule 609 varies from North Dakota law as the rule allows evidence of a conviction only if the crime is punishable by more than one year in prison or involves dishonesty or false statement. Under North Dakota case law, evidence of any criminal conviction, regardless of punishment, was admissible. State v. Moe, 151 N.W.2d 310 (N.D. 1967). A further distinction is found in the ten-year time limit for admissibility set by the Rule. North Dakota cases have established no express time limit. State v. Pfaffengut, 77 N.W.2d 521 (N.D. 1956).

Mr. Peterson seconded the motion. Motion CARRIED.

RULE 610

Judge Burdick MOVED to adopt the Procedure Committee Notes, subject to style changes.

This rule is adopted from Rule 610 of the Federal Rules of Evidence. It should be noted that the rule prohibits admission of evidence of religious beliefs only if offered to affect credibility. Such evidence may be offered for other purposes, such as showing bias.

Mr. Kraft seconded the motion. Motion CARRIED.

RULE 611

Judge Burdick MOVED that Rule 43(b), NDRCivP, be listed as "considered" rather than "repealed." Mr. Kraft seconded the motion. Motion CARRIED.

Judge Burdick MOVED that the Procedure Committee Notes be adopted, subject to style changes.

Rule 611 is substantially the same as Rule 611 of the Federal Rules of Evidence. The rule gives the court wide discretion over the mode and order of presenting evidence. This comports with established North Dakota case law. See Killmer v. Duchscherer, 72 N.W.2d 650 (N.D. 1955).

Mr. Kraft seconded the motion. Motion CARRIED.

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RULE 612

Judge Burdick MOVED to adopt the Procedure Committee Notes, subject to style changes.

Rule 612 is identical to Rule 612 of the Uniform Rules of Evidence (1974). The rule varies from its federal counterpart in structure, and in that it applies to objects as well as to writings. It was felt that objects used to refresh the memory of a witness, such as a recording tape, should be subject to production. This rule also departs from the federal rule by explicitly providing for inspection of writing or object if production of the writing or object at trial is impracticable.

Mr. Kraft seconded the motion. Motion CARRIED.

RULE 613

Mr. Higgins MOVED that § 31-08-07, NDCC, be moved from "superseded" to "considered." Mr. Kraft seconded the motion. Motion CARRIED.

Judge Burdick MOVED that the Committee recommend that the statute be revised to prohibit the taking of those statements unless a copy is furnished within 30 days, with an appropriate misdemeanor classification violation if that is done, but not to prohibit the use of the statement in court. Motion WITHDRAWN.

Justice Vogel MOVED to adopt the Procedure Committee Notes, subject to style changes.

Rule 613 is an adoption of Rule 613 of the Federal Rules of Evidence. The rule has been specifically approved by the North Dakota Supreme Court:

"The rule requiring a predicate for impeachment by prior inconsistent statements, sometimes called the rule in Queen Caroline's Case, is gradually disappearing. See McCormick, § 37; 3 Weinstein, Evidence, p. 613-3 (1975). As we have stated, it does not apply to admissions by parties. As to other witnesses, the requirement has been eliminated in many recent revisions of the rules of evidence. The new Federal Rules of Evidence eliminate the requirement of prior opportunity to explain or deny. Instead, they provide that the witness must have the opportunity at some time to explain or deny, but that the judge may dispense with the requirement if the interests of justice require. Rule 613(b). They also provide that the witness need not be shown

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a contradictory statement, but it must be shown or disclosed to his counsel on request. Rule 613(a). We believe these rules represent the best available reconciliation of conflicting interests, and we specifically approve them." Starr v. Morsette, 236 N.W.2d 183, 188, n. 2 (N.D. 1975).

Judge Burdick seconded the motion. Motion CARRIED.

MR. HARRY PEARCE now joined the members present.

RULE 614

Justice Vogel MOVED to adopt the Procedure Committee Notes, subject to style changes.

This rule is an adoption of Rule 614 of the Federal Rules of Evidence. The calling by the court of a witness, who may then be cross-examined by both sides, is established in Rule 28, NDRCrimP (as to experts and interpreters), and is approved by the North Dakota Supreme Court. See State v. Hilling, 219 N.W.2d 164, 172 (N.D. 1974).

Rule 614 provides that objections to interrogation by the court or to the calling of a witness by the court may be made out of the jury's presence so as to avoid any possible prejudice to the objecting party.

Mr. Higgins seconded the motion. Motion CARRIED.

RULE 615

Mr. Higgins MOVED to adopt the Procedure Committee Notes, subject to style changes.

Rule 615 is taken from Rule 615 of the Federal Rules of Evidence. It provides that it is mandatory for a court to exclude witnesses when so requested by a party. The mandatory demand of this rule marks a departure from prior North Dakota law, which was that the exclusion of witnesses was a matter within the court's discretion. Tice v. Mandel, 76 N.W.2d 124 (N.D. 1956).

Mr. Kraft seconded the motion. Motion CARRIED.

RULE 701

Judge Burdick MOVED to adopt the Procedure Committee Note.

Rule 701 is an adoption of Rule 701 of the Federal Rules of Evidence. It presents no new practice to North Dakota.

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Mr. Pearce seconded the motion. Motion CARRIED.

RULE 702

Judge Burdick MOVED to adopt the Procedure Committee Notes, subject to style changes.

Rule 702 is taken from Rule 702 of the Federal Rules of Evidence, and states the general rule governing expert testimony. The rule is consistent with North Dakota law.

In Stein v. Olhauser, 211 N.W.2d 737 (N.D. 1973), the North Dakota Supreme Court affirmed the exclusion of an expert opinion as to the speed of a vehicle based upon crash damage. The Court stated that, in order to establish a foundation for expert testimony,

". . . a showing must be made that the subject matter is one where expert testimony is accepted by the scientific community and the courts and that the proferred expert has sufficient expertise in the area of his competence." Syllabus ¶ 1, at 738.

The case should be consulted further for its extensive discussion of this rule.

Judge Hatch seconded the motion. Motion CARRIED.

RULE 703

Judge Burdick MOVED to adopt the Procedure Committee Notes, subject to style changes.

Rule 703 is an adoption of Rule 703 of the Federal Rules of Evidence.

In a recent opinion, the North Dakota Supreme Court set out all of Article VII as a "reliable guide for State courts, in the absence of statutory provisions on the subject or rules of evidence declaring otherwise." Minot Sand § Gravel v. Hjelle, 231 N.W.2d 716, 728 (N.D. 1975). The Court dealt specifically with the subject matter of Rule 703, stating that an expert witness need not prove the basis of his opinion as fact. The import of the Court's decision was that the basis for an opinion need not be proved by admissible evidence and that if the basis is weak or nonexistent, this goes to the expert's credibility and not necessarily to the admissibility of the opinion evidence.

Judge Hatch seconded the motion. Motion CARRIED.

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RULE 704

Judge Burdick MOVED to adopt the Procedure Committee Notes, subject to style changes.

This rule is taken from Rule 704 of the Federal Rules of Evidence. It should be noted that this rule applies to the opinions of lay witnesses, whenever admissible, as well as to opinions of experts.

The motion was seconded by Judge Hatch. Motion CARRIED.

RULE 705

Judge Burdick MOVED to adopt the Procedure Committee Notes, subject to style changes.

Rule 705 is taken from Rule 705 of the Federal Rules of Evidence. The major effect of the rule is to do away with the requirement that an expert opinion be based on facts in evidence or assumed to be true hypothetically. This is a change in North Dakota practice. See Syllabus ¶ 4, Fisher v. Suko, 98 N.W.2d 895 (1959). The expert may be cross-examined as to the underlying data of his opinion, for purposes of weakening his opinion. See Minot Sand § Gravel Co. v. Hjelle, 231 N.W.2d 716 at 728, 729 (N.D. 1975).

RULE 706

Judge Burdick MOVED that Rule 28(a), NDRCrimP, be listed as "considered," not "repealed." Mr. Murray seconded the motion. Motion CARRIED.

Mr. Higgins MOVED that in the Procedure Committee Notes reference to State v. Hilling, 219 N.W.2d 164 (N.D. 1974), be deleted. Justice Vogel seconded the motion. Motion CARRIED.

Judge Burdick MOVED to adopt the Procedure Committee Notes, as amended, subject to style changes.

With only a minor change, this rule is an adoption of Rule 706 of the Federal Rules of Evidence. It comports with present North Dakota practice, but is a more detailed statement of the procedure involved whenever a court appoints an expert than presently exists in North Dakota law. Cf. Rule 28, NDRCrimP.

Judge Hatch seconded the motion. Motion CARRIED.

RULE 801

Judge Burdick MOVED to adopt the Procedure Committee Notes, subject to style changes.

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The definition of hearsay contained in this rule is dependent, in part, upon the definition of a statement contained in subdivision (a). In this regard, it should be noted that nonverbal conduct, to be a statement, and thus hearsay, must be intended by the party to be an assertion. Nonassertive conduct is not a statement and therefore not objectionable as hearsay. Thus, pointing out a suspect in response to the question, "Who did it?" is assertive conduct and, if it otherwise falls within the definition, hearsay. Conversely, the act of opening an umbrella is not intended to be assertive, is not hearsay, and may be offered as substantive evidence that rain was falling at a certain place and time.

Hearsay is defined in subdivision (c) as a statement made by a declarant, other than one made at the trial or hearing offered to prove the truth of the matter asserted. This definition is of two distinct parts. The first is that the statement is one not made at the trial in which it is offered.

The second is that the statement must be offered to prove the truth of its content, i.e., the matter asserted in the statement. If offered for other purpose, e.g., to show that the declarant in fact made a statement -- any statement -- and, thus, was conscious at a particular time, the statement is not objectionable as hearsay. See, e.g., Chester v. Einerson, 76 N.D. 205, 34 N.W.2d 437 (1948). The reason for this requirement is that it is only when a statement is offered to prove the truth of the matter asserted that there is a lack of the safeguards used to insure credibility of the declarant. It is this lack of an oath and cross-examination of the declarant that warrants the exclusion of evidence as hearsay.

It should be noted that subdivision (c) does not define as hearsay statements made out of the presence of a party against whom offered. The presence or absence of a party is not, nor has it ever been, a criterion by which hearsay is defined. It should be discarded as a "remarkably persistent bit of courthouse folklore." McCormick on Evidence, § 246 at 586 (2d ed. 1972).

Subdivision (d) exempts from the hearsay definition, and allows as substantive evidence, two types of statements which are technically hearsay. The reason for the exemptions are that the dangers normally attendant to receiving hearsay statements are at least partially removed in the exempted situations: In subdivision (d)(1), the opportunity to cross-examine the declarant is present. In subdivision (d)(2), the nature of the adversary system strengthens the reliability of an

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admission by a party-opponent.

Subdivision (d)(1)(i) follows Rule 801, Uniform Rules of Evidence, allowing prior inconsistent statements always to be used as substantive evidence in civil cases and, if the prior statement was made under oath, in criminal cases. This varies from Rule 801 of the Federal Rules of Evidence, which requires that the prior statement be made under oath in all cases. See the discussion of Rule 801, Federal Rules of Evidence, in State v. Igoe, 206 N.W.2d 291 (N.D. 1973).

Subdivision (d)(2), for the reasons stated above, exempts from the hearsay definition admissions of a party-opponent. This comports, generally, with the philosophy expressed by the North Dakota Supreme Court. See the discussion of the comparable federal rule in Starr v. Morsette, 236 N.W.2d 183 (N.D. 1975).

Judge Hatch seconded the motion. Motion CARRIED.

RULE 802

Judge Burdick MOVED to amend the Procedure Committee Notes by deleting the last sentence, and when so amended to adopt the commentary, subject to style changes.

Rule 802 states the general rule excluding the admissibility of hearsay statements. Exception is made for those cases in which statutes or other rules allow the use of hearsay evidence.

The motion was seconded by Justice Vogel. Motion CARRIED.

RULE 803

Justice Vogel MOVED to adopt the Procedure Committee Notes, subject to style changes.

Rule 803 is an adoption of Rule 803 of the Federal Rules of Evidence with one notable change occurring in Rule 803(22), which is discussed below.

The excepted situations listed in this rule traditionally have been deemed to have circumstantial guarantees of trustworthiness which render hearsay evidence reliable and admissible, even though the declarant may be available to testify.

The first three exceptions listed comprise what has been loosely termed the "res gestae" exception. That phrase is not used in this rule. The use of the specific exceptions, rather than the vague and elusive "res gestae" is felt to

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depict a clearer picture of which statements are within the exception, and the justification for their admissibility. This approach has been specifically approved by the North Dakota Supreme Court. Starr v. Morsette, 236 N.W.2d 183 at 187, n. 1 (N.D. 1975).

Subdivision (22) provides that, in certain instances, evidence of a previous final judgment comes within a hearsay exception. The subdivision differs from its federal counterpart in that the federal exception for pleas of nolo contendere has been deleted as that plea is not used in the State courts of North Dakota. Rules 11 and 12, NDRCrimP. The subdivision also was changed by adding that post-conviction proceedings, like appeals, do not affect the admissibility of previous convictions.

It should also be noted that these exceptions remove only the hearsay objection to evidence. Evidence of a past conviction under paragraph (22) sought to be introduced must also meet the requirements of Rule 609, NDREv.

The basis for the admission of hearsay evidence under any of these exceptions is its circumstantial guarantees of trustworthiness. Paragraph (24) provides that a statement not specifically listed may also be admitted if it has comparable guarantees of trustworthiness and meets the three listed conditions. Furthermore, notice must be given of its intended use.

This section is designed to prevent the strained extensions of hearsay exceptions that have occurred in the past. Evidence meeting the requirements of paragraph (24) should be admitted and now may be without distorting the listed exceptions.

Judge Burdick seconded the motion. Motion CARRIED.

RULE 804

Judge Burdick MOVED to adopt the Procedure Committee Notes, subject to style changes.

Rule 804 is taken in the main from the Uniform Rules of Evidence (1974). It allows, certain hearsay evidence to be admitted, but because the guarantees of trustworthiness are not as strong in the situations listed under this rule as under Rule 803, the admission is conditioned upon the unavailability of the declarant.

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Subdivision (a) defines unavailability of a declarant as not only situation in which the declarant is physically unavailable but, in addition, situations in which it is not possible to obtain his testimony.

Subdivision (b) goes on to list situations in which hearsay evidence is not excluded when a declarant is unavailable.

Subdivision (b)(1) states that former testimony may be admitted if the party against whom it is offered had an opportunity and similar motive to examine the witness. This is in accordance with the law in North Dakota as recently stated in State v. Jacob, 222 N.W.2d 586 (N.D. 1974).

Subdivision (b)(2) provides the traditional exception for statements made by declarant while believing that his death was imminent. This section varies from the federal rules which limit the use of such evidence to civil proceedings and prosecutions for homicide.

Subdivision (b)(3) expands the common law exception of statements made against interest by including statements which subject the declarant to civil or criminal liability. To protect against possible fabrication, statements which subject the declarant to criminal liability offered to exculpate the accused must be corroborated before they will be admitted.

Subdivision (b)(3) differs from the comparable federal rule by excluding from this exception statements made by a codefendant which implicate both himself and the accused. Such statements may not be against interest, and the area is one in which constitutional rights of the defendant may preclude their admission. Rather than proceed on a case-by-case basis, it was decided to preclude admission of such statements entirely.

Subdivision (b)(4) is a traditional exception, founded upon the difficulty of obtaining such evidence by other means. The traditional exception is liberalized under Rule 804(b)(4) by not requiring firsthand knowledge of the declarant and by allowing statements of nonfamily members who are intimately associated with the family.

Subdivision (b)(5) is a counterpart of Rule 803(24), and was included for the same reasons. See Rule 803, Procedure Committee Notes.

Mr. Pearce seconded the motion. Motion CARRIED.

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RULE 805

Judge Burdick MOVED to adopt the Procedure Committee Notes, subject to style changes.

Rule 805 provides that double or multiple hearsay statements are not to be excluded if each step is admissible under a hearsay exception. Thus, a dying declaration containing another declarant's statement of his present sense impression would be admissible.

Mr. Pearce seconded the motion. Motion CARRIED.

RULE 806

Justice Vogel MOVED to adopt the Procedure Committee Notes, subject to style changes.

Rule 806 treats a declarant of hearsay evidence as any other witness by allowing his credibility to be attacked in accordance with the rules of Article VI. One deviation is required, however, and that is that a declarant need not have been given an opportunity to deny or explain a statement inconsistent with the hearsay statement. Compare Rule 613(b), NDREv. This is because the inconsistent statement may well have been subsequent to the hearsay statement offered in evidence, precluding bringing it to the declarant's intention.

Judge Burdick seconded the motion. Motion CARRIED.

The meeting was adjourned to 9:00 a.m. September 24, 1976.

The meeting was called to order at 9:00 a.m., September 24, 1976, by Justice Paul M. Sand, Chairman.

ATTENDANCE

Members Present:

Hon. Eugene A. Burdick
Hon. James H. O'Keefe
Hon. Larry Hatch
Hon. Wm. S. Murray
Mr. Larry Kraft
Mr. Calvin N. Rolfson
Mr. David L. Peterson
Hon. Robert Vogel
Hon. Paul M. Sand

Staff Present:

Duane Houdek
Eveleen Klaudt

Also Present:

Christine Hogan

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RULE 901

Judge Burdick MOVED to adopt the Procedure Committee Notes, subject to style changes.

Article IX is taken from the Federal Rules of Evidence and has been the subject of only minor revision.

The Article deals with the method of authenticating evidence. Authentication has been said by Wigmore to be a matter of "logical necessity":

"In short, when a claim or offer involves impliedly or expressly any element of personal connection with a corporal object, that connection must be made to appear, like the other elements, else the whole fails in effect." VII Wigmore, Evidence, § 2129 at 564 (3d ed. 1940).

Thus, authentication is merely a preliminary question of conditional relevancy and, as such, is to be determined according to the standards and requirements of Rule 104(b), NDREv. A determination that evidence is authentic does not render it admissible. It may be hearsay, e.g., and excluded on that ground.

The illustrations listed in subdivision (b) are derived from traditional methods of authentication. They should be read in light of the general requirement of subdivision (a), which is satisfied by evidence sufficient to support a finding that the matter is what its proponent claims.

Judge Hatch seconded the motion. Motion CARRIED.

RULE 902

Judge Burdick MOVED to adopt the Procedure Committee Notes, subject to style changes.

Rule 902 represents a relaxation of the common law requirement of authentication by creating a presumption that certain documents and records are authentic and thereby placing the burden of showing lack of genuineness on the party opposing introduction of the offered evidence. This has been done by statute for certain public documents, records, and certified copies. Rule 902 extends the benefits of this presumption to private documents in which the risk of falsification is slight.

Mr. Rolfson seconded the motion. Motion CARRIED.

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RULE 903

Mr. Rolfson MOVED to adopt the Procedure Committee Notes, subject to style changes.

By statute, the common law requirement that subscribing witnesses testify to the authenticity of a document has been abrogated. Section 31-08-02, NDCC. This rule continues the statutory practice, but provides that those witnesses must testify if required by the laws governing the validity of the writing.

Judge Burdick seconded the motion. Motion CARRIED.

RULE 1001

Judge Burdick MOVED to adopt the Procedure Committee Notes, subject to style changes.

Article X is addressed to that aspect of the law of evidence traditionally termed the "best evidence" rule or, at times, more correctly, the rule requiring the production of original documents. The phrase, "best evidence," does not appear in any of the rules of this Article; its omission was intentional, meant to signify a departure from the interpretation often given the rule, if not from the true import of the rule itself.

Article X applies only to writings, recordings, and photographs. These items are defined, for purposes of this Article, in Rule 1001.

Paragraph (1) expands the definitions of "writings" and "recordings" to include not only those documents produced by traditional methods, such as handwriting, typing, and printing, but also to include data recorded by means of photography, magnetic impulse, and mechanical or electronic recording. This definition would bring within the scope of these rules sound recordings as well as data contained in computer banks. The reason which gave birth to the "original documents" rule, i.e., the need for an accurate and honest presentation of written evidence, demands the expanded application of the rule to these later, modern methods of data recordation. The definition is "open-ended," encompassing "other forms[s] of data compilation" that are generically similar to those listed. The definition is not intended to include symbols which are not representative of words or numbers.

Paragraph (2) defines photographs as still photographs, X-rays, video tapes and motion pictures. This definition is included in a section apart from that defining writings and recordings, for there will be occasions when Rule 1002, requiring production of an

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original, will apply to photographs, not because they are duplicates of writings, but because the contents of the photographs will be sought to be proved. See Rule 1002 and explanatory note, infra.

An "original," as defined in paragraph (3) for the purposes of this Article may be, but will not necessarily be, that document or recording one would ordinarily label an original, if speaking in lay terms. One would ordinarily think of an original as being the document, recording, or photograph first made in point of time. But for purposes of this Article, the definition and existence of an "original" is not dependent upon the chronology of production. As stated in 5 Weinstein's Evidence 1001-49 (1975);

"The 'original' is the document whose contents are to be proved. Its jural significance makes it the original whether or not it was written before or after another, was copied from another, or was itself used to copy from."

Thus, for example, in an action for libel, a Xeroxed copy of a letter, if published, would be the "original" for purposes of this rule.

The intent of the parties to a transaction will often bear upon the legal significance of a writing and, thus, its status as an original under this rule. Thus, if the parties to a contract execute several copies, intending that each be legally effective, all copies are deemed to be originals. 5 Weinstein, supra, at 1001-50.

The prints from a photographic negative are treated as originals, as they are the first recognizable form of a photograph. The negative, of course, would also be an original in the usual case.

The last sentence of paragraph (3) accords the status of original to computer printouts "readable by sight," provided the printout is shown to accurately reflect the data it contains. This is a necessary provision as the underlying data is not readily comprehensible.

Paragraph (4) defines "duplicate," as that term is used in this Article. The definition is broad enough to include carbon copies, printed items such as newspapers or other writings produced from a single matrix, Xeroxed copies, microfilms, tape records of material originally recorded on wire, or other techniques which accurately reproduce the original. Accurate reproduction of the original is the sole, essential feature of a duplicate under this rule. There is no requirement that the duplicates be made "in the regular course of business" as under prior statutes. See § 31-08-01.1, NDCC. The duplicating process itself is deemed sufficient to assure accuracy.

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It should be noted at this juncture that two main reasons have been advanced for the requirement that original documents be produced: (1) the prevention of inaccurate reproduction, and (2), the prevention of fraud. McCormick on Evidence § 231 (2d ed. 1972). This paragraph provides an assurance of accuracy in its definition; it does not deal with the possibility of fraudulent duplications. Rule 1003, infra, is designed to require production of an original whenever the authenticity of an original is in issue.

Finally, it should be noted that although many nice questions may arise as to whether a document is an original or a duplicate, the end result will often be its admission regardless of its status. Under these rules, except when the authenticity of a writing is questioned or when it would be unfair to admit a duplicate, duplicates and originals are treated interchangeably. See Rule 1003, infra.

Mr. Rolfson seconded the motion. Motion CARRIED.

RULE 1002

Judge Burdick MOVED to adopt the Procedure Committee Notes, subject to style changes.

Rule 1002 states the rule that "to prove the content of a writing, recording, or photograph" the original is required. This rule is a familiar one as applied to writings; it is expanded under this section to include recordings and photographs. Advisory Committee's Note to Rule 1002, Federal Rules of Evidence Pamphlet (West Pub. Co. 1975).

The rule is intended to be one of preference, rather than one of rigid application. The definitions contained in Rule 1001 and ensuing Rules 1003-1007 are designed to insure that the rule operates as an aid in the search for truth and not as a rule of needless exclusion of evidence.

Perhaps the most persistent problem in applying this rule lies in determining whether the rule should be applied at all. To phrase this in terms of the present section: When are the contents of a writing, recording, or photograph sought to be proved?

With respect to writings, there are certain instances in which it is clear that testimony is given, or a writing utilized, for purposes other than to prove the contents of a writing. For example, a witness may use a writing to refresh his memory without coming under this rule [see, e.g., Kemmer v. Sunshine Mutual Ins. Co., 79 N.D. 518, 57 N.W.2d 856

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(1953)]; evidence of payment made may be given without producing the written receipt. McCormick on Evidence, § 233 at 564 (2d ed. 1972).

Conversely, where the writing has a legal, operative effect, as in the case of a deed, it must be produced if its terms are to be proved. For example, where the contents of a notice of tax sale are in issue, the newspaper containing the notice must be produced; testimony as to the contents of the notice will not be admitted. DeNault v. Hoerr, 66 N.D. 82, 262 N.W. 361 (1935).

Thus, the test may be said to be one of legal efficacy of the document in question. And, although this test has been criticized as one of difficult application, and one producing questionable results [see, McCormick on Evidence, § 233 (2d ed. 1972)], it is retained, but with safeguards which should remove the bases for such criticism. Rule 1003(4) provides a basis for the non-application of this rule in cases where a writing is not closely related to a material issue. Rules 611 and 614 allow the trial court to require written evidence, when available, even though oral testimony would be acceptable under this rule. See, 5 Weinstein's Evidence 1002-12 (1975).

This rule has application to photographs as well as writings, although it is the rare case in which the contents of a photograph will be in issue. Normally, a photograph will be introduced to "illustrate" the testimony of a witness who has personally observed that which is depicted in the photograph. McCormick on Evidence § 214 (2d ed. 1972). In these cases, this rule does not apply. There are instances, however, such as defamation cases in which the contents of the photograph are involved and are subject to this rule. Also, photographs taken by an automatic means, such as those used in many banks, will be subject to the rule requiring production of the original.

Exception to this rule has been made in recognition of the many statutes which direct the admittance of certified copies of documents as if they were originals. See, e.g., §§ 26-15-04 and 28-23-12, NDCC. These statutes, and those of similar import, are left undisturbed by this rule.

Mr. Kraft seconded the motion. Motion CARRIED.

RULE 1003

Mr. Rolfson MOVED to adopt the Procedure Committee Notes, subject to style changes.

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As was discussed in relation to Rule 1001, the primary reasons for requiring the production of original documents are to prevent inaccurate reproductions of evidence and to prevent fraud. Technological advances have rendered the inaccurate copy a rarity. Rule 1001, in its definition of a duplicate, insures that only accurate reproductions will be admitted in lieu of originals. In light of this, Rule 1003 provides that a duplicate is admissible to the same extent as an original except where there is a genuine questions as to a document's authenticity or whenever it would be unfair to admit the duplicate.

The first exception is intended to cover those cases in which there is a genuine allegation of inaccuracy of reproduction or where the circumstances surrounding the case yield a substantial suggestion that the original document is not authentic. Possibilities of fraud may arise, for example, where a party in possession of an original document claims that the document has been lost or destroyed. Of course, this factor alone should not preclude admission of a duplicate, but coupled with an allegation of fraud and an inadequate explanation of the loss or destruction, exclusion of a duplicate may be warranted. 5 Weinstein's Evidence ¶ 1003[02] (1975).

The circumstances of unfairness which would warrant exclusion of a duplicate cannot be set out with any precision. This exception is intended to prevent application of the general rule admitting duplicates whenever the circumstances are such that a party will be prejudiced by the absence of the original in evidence.

For example, where only a part of the original is reproduced, and the remainder bears upon the part offered in evidence, fairness would require production of the original. See Advisory Committee's Notes to Rule 1003, Federal Rules of Evidence Pamphlet (West Pub. Co. 1975).

In the final analysis, it will be the responsibility of the courts to shape the parameters of this rule and its exceptions. The exceptions will necessarily be utilized in limited instances to insure fairness, but they should not be interpreted in a manner that undermines the policy of the general rule which is to further the use of duplicates as evidence of writings.

Judge Burdick seconded the motion. Motion CARRIED.

RULE 1004

Judge Burdick MOVED to adopt the Procedure Committee Notes, subject to style changes.

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Rule 1004 excuses production of an original writing, recording, or photograph in four cases:

(1) Subject to a good faith requirement on the part of a proponent of evidence, paragraph (1) continues the common law exception that secondary evidence is admissible whenever an original has been lost or destroyed.

Under paragraph (1), the intentional destruction of an original does not automatically preclude admission of secondary evidence as to its contents. As stated by Wigmore:

"The view now generally accepted is that (1) a destruction in the ordinary course of business, and, of course, a destruction by mistake, is sufficient to allow the contents to be shown as in other cases of loss, and that (2) a destruction otherwise made will equally suffice, provided the proponent first removes, to the satisfaction of the judge, any reasonable suspicion of fraud." 4 Wigmore on Evidence § 1198 at 457-460 (Chadbourn rev. 1972).

The most common means of proving loss or destruction is by showing that a search has been made and that it did not produce the document in question. 5 Weinstein's Evidence ¶ 1004(l)[05] (1975).

It is difficult to describe with preciseness the type of search that will be sufficient to prove loss or destruction; perhaps nothing meaningful can be said other than that the search must be diligent. It is the function of the trial judge to determine whether proof of a search satisfactorily removes the possibility of fraud. See Rule 104, NDREv.

(2) Paragraph (2) applies when the writing, recording, or photograph in question is in the possession or control of a person not a party to the litigation. In those cases in which the original is in the possession of a party opponent, paragraph (3) governs.

The fact that a subpoena duces tecum has been served upon a person within the state, pursuant to Rule 45, NDRCivP, or Rule 17, NDRCrimP, and has been dishonored will constitute a showing that an original is not obtainable, sufficient under this rule to permit the introduction of secondary evidence.

Documents may also be ordered produced in conjunction with the taking of depositions under Rule 28, NDRCivP, and Rule 15, NDRCrimP. Again, failure to produce the documents will constitute a sufficient showing under this paragraph.

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(3) In contrast to the showing required under Rule 1004(2), whenever an original is in the possession of an opponent all that need be shown is that the opponent was "put on notice" that the contents of the original would be subject of proof at the hearing. The notice may be held to be given by the pleadings in cases where it is clear that the document in possession of the opponent will be a subject of proof. An example would be a suit involving the terms of a contract or deed.

The safest way to insure that adequate notice is given is to provide written notice. This practice should become a matter of course under this paragraph.

(4) Paragraph (4) is intended to relieve the requirements of Rule 1002 whenever a writing in question "is not closely related to a controlling issue." The rule is necessary to the orderly conduct of a trial. As stated by McCormick:

"At nearly every turn in human affairs some writing -- a letter, a bill of sale, a newspaper, a deed -- plays a part. Consequently any narration by a witness is likely to include many references to transactions consisting partly of written communications or other writings. A witness to a confession, for example, identifies the date as being the day after the crime because he read of the crime in the newspaper that day, or a witness may state that he was unable to procure a certain article because it was patented. It is apparent that it is impracticable to forbid such references except upon condition that the writings (e.g., the newspaper, and the patent) be produced in court. Recognition of an exception exempting 'collateral writings' from the operation of the basic rule has followed a necessary concession to expedition of trials and clearness of narration, interests which outweigh, in the case of merely incidental references to documents, the need for perfect exactitude in the presentation of these documents contents." McCormick on Evidence § 234 at 565 (2d ed. 1972).

Judge Hatch seconded the motion. Motion CARRIED.

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RULE 1005

Mr. Kraft MOVED to adopt the Procedure Committee Notes, subject to style changes.

It is recognized under Rule 1005 that requiring production of original public records "would be attended by serious inconvenience to the public and to the custodian." Advisory Committee's Note to Rule 1005, Federal Rules of Evidence Pamphlet (West Pub. Co. 1975). Therefore, Rule 1005 is designed to provide a limited exception to Rule 1002 in those cases where official records or recorded documents are in issue.

Unlike the balance of the rules in Article X, Rule 1005 recognizes, to a limited extent, the existence of degrees of secondary evidence. Certified and compared copies are preferred over other evidence of the contents of original public records. Certification of a copy is to be accomplished pursuant to Rule 902, which in turn incorporates the statutes of North Dakota. See Rule 902(4). Thus, the methods of proving official documents contained in Chapter 31-09, NDCC, are permissible under Rule 1005.

The preference given to certified or compared copies precludes the use of duplicates unless, of course, the preferred copies are not available. Rule 1003 is therefore preempted by application of Rule 1005. It should be noted, however, that Rule 1005 applies to documents authorized to be recorded only if they are actually recorded or filed. In a case where the terms of a document are in issue, if a photostat or other copy is filed and the original returned to the owner, the original may be proved in any method permitted by Article X in general. [However, if the contents of the document filed are in issue, e.g., to prove notice, the filed document is considered the "original" even if it is a photostat.]

The question may arise whether an attempt must be made to produce the original if a certified or compared copy cannot be obtained by a reasonably diligent effort. The answer is affirmative. The original is the best proof of its contents; the admissibility of copies is allowed to accommodate public officials and others who may use official or recorded documents. This reasoning does not support the admissibility of oral evidence, for example, where the original document could be produced. See, generally, 5 Weinstein's Evidence ¶ 1005[06]; accord, Hermening v. Howland, 25 N.D. 38, 141 N.W. 131 (1913).

Judge Burdick seconded the motion. Motion CARRIED.

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RULE 1006

Mr. Peterson MOVED to adopt the Procedure Committee Notes, subject to style changes.

The admissibility of summaries of voluminous writings over the objection that such summaries are not the "best evidence" has long been permitted in North Dakota. See Wishek v. United States Fidelity § Guaranty Co., 55 N.D. 321, 213 N.W. 488 (1927). Rule 1006 continues this rule of convenience and expands it to include summaries of recordings and photographs.

It is a condition precedent to the invocation of the rule that the component parts of the summary be made available for examination or copying. This is intended to give the party against whom the summary is offered a chance to analyze the underlying data and prepare any challenges to the summary he may wish to make. This court may direct that the original writings be produced at trial. This would be necessary, for example, should the opposing party wish to introduce the originals in an attack on the accuracy of the summary.

Rule 1006 does not permit the admissibility of summaries where the individual writings are themselves inadmissible. For example, where the original documents contain hearsay, summarizing the documents will not cure the hearsay objection.

It should be noted that not all summaries will come within the scope of Rule 1006. Computer printouts, which are summaries of stored data, are themselves originals. See Rule 1001(3). Summaries of absent originals may be admitted under Rules 1004 or 1005 without reference to Rule 1006. 5 Weinstein's Evidence § 1006[05] (1975).

Judge Burdick seconded the motion. Motion CARRIED.

RULE 1007

Judge Hatch MOVED to adopt the Procedure Committee Notes, subject to style changes.

Rule 1007 operates as an exception to Rule 1002 by allowing the contents of a writing, recording, or photograph to be proved by the admission of the party against whom it is offered, without accounting for the nonproduction of the original. To this extent, the rule is in accord with the common law. 4 Wigmore on Evidence § 1256 (Chadbourn rev. 1972). However, in a departure from the leading case on the subject [Slatterie v. Pooley, 6 M. § W. 664, 151 Eng. Rep. 579 (Exch. 1840)], not all admissions are recognized for the purpose of proving the contents of a

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writing, but only those that are written or given as testimony or in a deposition. This limitation is designed to insure that the admission will be accurately related to the trier of fact and thus excludes prejudicial, oral admissions because these are vulnerable to erroneous transmission. See, generally, McCormick § 242 (2d ed. 1972).

Rule 1007 is not intended to prevent the use of an opponent's admission to directly prove a fact that may also be evidenced by a writing. Only where the admission is used to prove the contents of a writing will Rule 1007 come into play. The test is much the same as that utilized under Rule 1002 to determine whether the contents of a writing are in issue. Nor should Rule 1007 be held to bar the use of an adverse party's admission where secondary evidence becomes admissible under the other provisions of Article X. See Rules 1004 and 1005.

Judge Burdick seconded the motion. Motion CARRIED.

RULE 1008

Judge Burdick MOVED to amend Rule 1008 by inserting, in line 8, after the word "writing" the words "recording, or photograph", and when so amended to adopt Rule 1008.

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, recording, or photographever 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.

Mr. Kraft seconded the motion. Motion CARRIED.

Mr. Murray MOVED to adopt the Procedure Committee Notes, subject to style changes.

Rule 1008 divides the functions of judge and jury with respect to preliminary questions of admissibility under the rules requiring or exempting the production of original writings, recordings, or photographs. This rule is but a specific application of Rule 104, which separates the function of judge and jury with respect to preliminary questions of admissibility in general. As such, Rule 1008 has as its fundamental divider between the functions of

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judge and jury the same distinction between preliminary questions relating to the competence of evidence and those relating to conditional relevancy. See Rule 104 and Explanatory Note.

As explained in the explanatory note to Rule 104, preliminary questions of admissibility which involve the competence of proferred evidence are properly decided by the judge, as these are questions whose answers are based upon broad policy considerations and the fulfillment of technical legal standards. Conversely, questions which are of relevance conditioned on fact are normally questions of probative value of the proferred evidence, and are logically to be decided by the jury.

Applying this distinction to the questions which are likely to arise under the rules of this article, a division of duties becomes apparent. Weinstein gives us examples of the preliminary questions of fact which may arise when determining whether secondary evidence should be admitted pursuant to the rules of this article:

"Is the original lost? Was a diligent search conducted for it? Is the original unobtainable because it is a public document? Is it outside the jurisdiction? Does the other party have possession or control over the original? Is the authenticating witness' testimony incompetent as hearsay or because of privilege?" 5 Weinstein's Evidence ¶ 1008[01] (1975).

Examination of these questions reveals that their answers depend upon consideration of what the "best evidence" rule is intended to accomplish and also upon application of legal standards." The examples quoted are of questions to be decided by the judge under Rule 1008.

Contrast with these the questions which, under Rule 1008, are to be decided by the jury: Did the asserted writing ever exist? Is another writing the original? Does other evidence of contents correctly reflect the contents? These are questions which involve only the relevance of the proferred evidence and may be answered without application of legal standards or policy considerations. The jury may, after answering the question, simply accord the writing the appropriate probative value; it needn't ignore the evidence as if it were inadmissible as hearsay. See 5 Weinstein's Evidence, supra, ¶ 1008[02] at 1008-9.

A further reason for distinguishing between questions involving competence and those involving conditional relevance is that the former are solely preliminary but the latter have a tendency to transcend the status of a preliminary question and become central issues of a case. Thus, the reason for distinguishing between the two

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becomes one of fairness to the parties. As stated by the Advisory Committee for the Federal Rules of Evidence:

"However, questions may arise which go beyond the mere administration of the rule preferring the original and into the merits of the controversy. For example, plaintiff offers secondary evidence of the contents of an alleged contract, after first introducing evidence of loss of the original, and defendant counters with evidence that no such contract was ever executed. If the judge decides that the contract was never executed and excludes the secondary evidence, the case is at an end without ever going to the jury on a central issue." Advisory Committee's Note to Rule 1008, Federal Rules of Evidence Pamphlet (West Pub. Co. 1975).

This rule is designed to insure consideration by a jury of critical issues that also happen to be preliminary issues. It should be noted at this point that Rule 1008 is intended to apply to all questions of conditional relevance, not just those listed in the rule. 5 Weinstein's Evidence, supra, ¶ 1008[01] at 1008-5, 6.

Finally, as a matter of practice, notice should be taken that Rule 1008 incorporates the provisions of Rule 104 as to the procedure for determining preliminary questions of admissibility. Thus, even as to questions to be decided by the jury, the judge plays a part in the determination. The judge, under this rule, as under Rule 104, should admit asserted evidence if he believes the proponent will establish the conditional fact to the satisfaction of a reasonable juror, subject to an instruction to the jury to disregard the evidence if they ultimately find against the existence of the conditional fact. 1 Weinstein's Evidence, supra, ¶ 104[02](5).

Mr. Kraft seconded the motion. Motion CARRIED.

RULE 1101

Justice Vogel MOVED to amend Rule 1101; in line 3 delete the word "the," and add the words "and magistrates" after the word "courts"; in line 21, after the word "probation," add the words "or parole." Mr. Peterson and Judge Burdick seconded the motion. Motion CARRIED.

Judge Burdick MOVED to further amend Rule 1101: line 21, delete the word "the," line 26, delete the words "provisions of"; add the words "Section 14-17-09, Chapter 27-05.1 and" after the word "with" in line 25; and when so amended, to adopt Rule 1101. Judge Murray seconded the motion. Motion CARRIED.

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RULE 1101. Applicability of Rules.

(a) Courts and magistrates. These rules apply to all courts and magistrates of 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 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 with the issue is to be determined by the court under Rule 104.

(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 or parole; 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 Section 14-07-09, Chapter 27-05.1, and Chapter 28-32, N.D.C.C.

Judge O'Keefe MOVED to amend the commentary to add, in the last line, the word "evidentiary" after the word "same." Judge Burdick seconded the motion. Motion CARRIED.

Judge Burdick MOVED to authorize Mr. Houdek to expand the commentary to reflect that in all trials the testimony of witnesses shall be taken orally in open court. Justice Vogel seconded the motion. Motion CARRIED.

This rule is patterned after Rule 1101 of the Federal Rules of Evidence. It was modified in committee by deleting references to proceedings which are unique to the federal courts, and by adding pretrial proceedings under the Uniform Parentage Act, § 14-07-19, NDCC; proceedings before family court counselors under Chapter 27-05.1, NDCC; detention hearings; and dispositional hearings in juvenile court to the list of miscellaneous proceedings exempted from coverage by subdivision (d)(3).

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Dispositional hearings in juvenile court are the counterpart to sentencing of adults and require the same evidentiary treatment.

RULE 101

Mr. Peterson MOVED to defer action on whether Rules 43(a), NDRCivP and Rule 26, NDRCrimP, should be listed as "considered" or "repealed." Judge Hatch seconded the motion. Motion CARRIED.

Mr. Peterson and Judge Burdick were appointed by the chair to act as a committee of two to propose amendments to these aforementioned Rules.

Judge Burdick MOVED that Rule 43(a), NDRCivP and Rule 26, NDRCrimP be listed as considered, not as repealed. Mr. Kraft seconded the motion. Motion CARRIED.

RULE 102

Justice Sand stated that, unless there is an objection, that Rule 102 as it is presently constituted be considered as approved by the Committee. No objection.

RULE 103

Judge Burdick MOVED to strike the reference to § 29-23-11, NDCC under "statutes affected." Mr. Kraft seconded the motion. Motion CARRIED.

Judge Burdick MOVED that Rule 43(c), NDRCivP, be listed as "considered," not "repealed." Justice Vogel seconded the motion. Motion CARRIED.

Judge O'Keefe MOVED that Rule 46, NDRCivP, be listed as "considered," not "repealed." Judge Burdick seconded the motion. Motion CARRIED.

Judge Burdick MOVED that Rule 61, NDRCivP, be listed as "considered," not "repealed." Justice Vogel seconded the motion. Motion CARRIED.

Judge O'Keefe MOVED that Rule 51, NDRCrimP, be listed as "considered," not "repealed." Judge Burdick seconded the motion. Motion CARRIED.

Judge O'Keefe MOVED that Rule 52, NDRCrimP, be listed as "considered," not "repealed." Judge Burdick seconded the motion. Motion CARRIED.

Judge Burdick MOVED to adopt the Procedure Committee Notes.

The purpose of subdivision (a) is to give the trial court an adequate basis for making a ruling, and to create a record which will permit informed

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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).

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 Drilling, supra, at 153, quoting Schuh v. Allery, 210 N.W.2d 96, 99 (N.D. 1973).

Subdivision (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.

Subdivision (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.

Mr. Kraft seconded the motion. Motion CARRIED.

RULE 104

Judge Burdick MOVED that Rule 43(c), NDRCivP, be listed as "considered," not "repealed." Judge Hatch seconded the motion. Motion CARRIED.

Mr. Peterson MOVED that the Procedure Committee Notes be amended by striking everything after the words in the third paragraph, "None of the problems . . ." through the end of that page, and the first sentence of the second page. Motion LOST for lack of a second.

Justice Vogel MOVED that the Procedure Committee Notes be amended by striking the words "No legal standards need be considered on appeal" in the third paragraph, and when so amended that the Notes be adopted.

Subdivision (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

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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, which are given exceptional status because of the need to maintain, totally, the confidentiality they are designed to protect.

Subdivision (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 the court's determination exist when questions of conditional relevancy are involved, 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. Kraft seconded the motion. Motion CARRIED.

RULE 105

Judge Burdick MOVED to adopt the Procedure Committee Notes, subject to style changes.

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

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purpose is slight or the point for which it is competent can readily be proved by other evidence. . . ." McCormick on Evidence 136.

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 violation of Bruton are reversible error.

Kraft seconded the motion. Motion CARRIED.

RULE 106

Mr. Higgins MOVED that Rule 15(e), NDRCrimP, be "considered" rather than "repealed." The motion was seconded by Judge Burdick. Motion CARRIED.

Mr. Higgins MOVED that Rule 32(a)(4), NDRCivP, be "considered" rather than "repealed." Justice Vogel seconded the motion. Motion CARRIED.

Justice Vogel MOVED to adopt the Procedure Committee Notes, subject to style changes.

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

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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 records be admitted at the same as the principal evidence if the trial court determines, in fairness, 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.

RULE 201

Judge O'Keefe MOVED that § 31-10-02, NDCC, should be "considered," rather than "superseded." Judge Hatch seconded the motion. Motion LOST.

Judge Burdick MOVED that the Procedure Committee Notes, subject to style changes, be adopted.

Rule 201 is the only rule dealing with the subject of judicial notice and, by the terms of subdivision (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.

Subdivision (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

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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.

Subdivisions (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 subdivision (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.'"

Subdivision (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

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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. 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 subdivision 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 subdivision will have been satisfied.

Under subdivision (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 subdivision (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,

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the determination that a fact is beyond dispute is made before the fact is Judicially noticed. It would serve no useful purpose to later admit evidence contrary to the noticed fact.

Mr. Kraft seconded the motion. Motion CARRIED.

RULE 301

Judge Burdick MOVED that § 14-17-04(2), NDCC, be removed from the list of statutes superseded, and entered with the list of statutes considered. Mr. Kraft seconded the motion. Motion CARRIED.

Judge Burdick MOVED to adopt the Procedure Committee Notes, subject to style changes.

Rule 301 deals with presumptions, prescribing their effect in all civil proceedings not otherwise provided for by law.

The term "presumption" has been ascribed various meanings, but in the last analysis it is found that very little may be said about presumptions that is agreeable to all. It may be stated that a presumption is a legal function by which the establishment of fact A is given an effect upon the proof of fact B, apart from that which would logically arise from the probative force of fact A.

Thus, a presumption is not evidence, it is a legal method of dealing with evidence. Nor may a presumption be said to be an inference, for an inference draws its force from the logical, probative value of facts. A presumption is given its effect because of legal considerations, which may be grounded in probability, but are as likely to be based upon trial expedience, access to evidence, or legal or social policies. For example, the presumption that a letter, duly posted, is received may be said to be based upon probability and also upon the inherent difficulty a party would have in proving receipt by other means. The presumption that a child born into a marriage is legitimate is based largely on the socially desirable policy of avoiding "the visitation upon the child of the sins of the parents." McCormick on Evidence, § 343 at 811 (2d ed. 1972).

The function of a presumption is often stated in terms of its effect upon the burden of proof at trial. According to one theory, espoused by Morgan, a presumption operates to "shift" the original burden of proof to the opponent of the presumption. Under another theory, espoused by Thayer and often called the "bursting bubble" theory, a presumption imposes upon its opponent a burden of going forward with evidence to rebut the

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presumption; once this is done, the presumption disappears.

The procedural consequences that result from the application of the two theories are these: Under either theory, a presumption avoids a directed verdict against its proponent at the close of his case and, if no evidence is later introduced to rebut the presumption, entitles the proponent to a directed verdict at the close of all the evidence. The differences arise when some evidence is introduced that is contrary to the presumption.

If the burden of proof is said to be fixed upon the opponent of the presumption, then he must introduce enough evidence to carry his burden. If the trier of fact reaches the conclusion that the opposing "evidence" is equal, then a verdict must be rendered in favor of the proponent of the presumption.

If a presumption is said to impose a burden of going forward with evidence to rebut the presumption, the amount of evidence that must be introduced by the opponent to avoid a directed verdict against him is that amount which convinces the judge that reasonable jurors could find contrary to the presumption. Once this is accomplished, the presumption is of no force and the issue is decided on the probative force of the evidence itself. If the evidence is in even balance, then the party who has the burden of proof, originally, must lose, even though his case may have been initially aided by a presumption.

It should be noted that, in all cases, presumptions are disputable and may be overcome by contrary evidence. "Conclusive presumptions," as contained in § 31-11-02, NDCC, are not presumptions at all, but rather legislative statements of substantive law.

Rule 301, as an expression of the theory expressed by Morgan, provides that a presumption imposes upon the party against whom it is directed the burden of proving its nonexistence. This gives presumptions a stronger effect than they are given under the comparable Federal Rule of Evidence. It was felt that this is desirable, in light of the important social considerations which give rise to presumptions.

By giving this effect to presumptions, Rule 301 comports with past interpretations of North Dakota law. See Dick v. New York Life Ins. Co., 359 U.S. 437, 79 S.Ct. 921, 3 L.Ed.2d 935 (1959); Svihovec v. Woodmen Accident Co., 69 N.D. 259, 285 N.W. 447 (1939). But see Fancher v. North Dakota Workmen's Compensation Bureau, 123 N.W.2d 105 (N.D. 1963); Johnson v. Johnson, 104 N.W.2d 8 (N.D. 1960). See also North Dakota Jury Instruction 1030 (October l, 1970).

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Mr. Kraft seconded the motion. Motion CARRIED.

RULE 302

Judge Burdick MOVED to adopt the Procedure Committee Notes, subject to style changes.

"Parallel jurisdiction in state and federal courts exists in many instances. The modification of Rule 302 is made in recognition of the situation. The rule prescribes that when a federally created right is litigated in a state court, any prescribed federal presumption shall be applied." Comment, Rule 302, Uniform Rules of Evidence (1974).

RULE 401

Judge Burdick MOVED to adopt the Procedure Committee Notes, subject to style changes.

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."

Justice Vogel seconded the motion. Motion CARRIED.

RULE 402

Judge Burdick MOVED to amend the Procedure Committee Notes as follows: in the sixth line delete the word "criminal"; in

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the seventh line, after the word "rights," add the words "in a criminal action," and when so amended that the Note be adopted, subject to style changes.

The focal point of this rule is not the statement that all relevant evidence is admissible and irrelevant evidence is 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 defendant's constitutional rights in a criminal action (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 Hatch seconded the motion. Motion CARRIED.

RULE 403

Judge Burdick MOVED to adopt the Procedure Committee Notes, subject to style changes.

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 been traditionally excluded on grounds of remoteness, see., e.g., In re Graf's Estate, 119 N.W.2d 478 (N.D. 1963), and on grounds that its probative value is not commensurate with the time required for its use as evidence. See Jones v. Boeing Company, 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, FRE.

Mr. Peterson seconded the motion. Motion CARRIED.

RULE 404

Judge Burdick MOVED to adopt the Procedure Committee Notes, subject to style changes.

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.

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Subdivision (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.

Subdivision (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 the North Dakota Legislature with its adoption of § 12.120-14, NDCC, and § 12.1-20-15, NDCC, relating to cases involving gross sexual imposition.

Subdivision (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.

Subdivision (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. 1975).

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 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

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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.

Judge Murray seconded the motion. Motion CARRIED.

RULE 405

Judge Burdick MOVED to adopt the Procedure Committee Notes, subject to style changes.

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. See State 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 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 subdivision (a), or under subdivision (b) in cases in which the character

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of a person is an essential element of a claim, charge, or defense. This use comports with present law. See McCormick on Evidence, § 187.

Mr. Rolfson seconded the motion. Motion CARRIED.

RULE 406

Justice Vogel MOVED to adopt the Procedure Committee Notes, subject to style changes.

Habit, which has been described by McCormick as "one's regular response to a repeated specific situation" [McCormick on Evidence, § 196, p. 462 (2d ed. 1972)], differs from character in its degree of specificity. Character is general, a summation of traits; habit is specific, an individual response to an individual stimulus. The distinction is important, for Rule 406 allows the use of evidence of habit to show that a person acted in conformity therewith, while Rule 404 denies a similar use of character evidence.

The rule does away with what has been termed the "eyewitness rule," which, as a general proposition, stated that evidence of habit was admissible only if there was no direct evidence of the act in question. As in other areas of these rules, it was felt that the admission of relevant evidence, rather than its exclusion, should be furthered. This represents a change in North Dakota practice, for the Supreme Court, in Glatt v. Feist, 156 N.W.2d 819 (N.D. 1968), adopted a modified eyewitness rule, stating that in cases in which eyewitnesses were present, evidence of habit would be allowed only if the direct evidence was in conflict. This rule admits evidence of habit regardless of the type of direct evidence present in a case.

Adoption of this rule means another departure from past North Dakota practice. In Haider v. Finken, 239 N.W.2d 508 (N.D. 1976), the North Dakota Supreme Court held that:

"Where there is no eyewitness, evidence of habit for care is inadmissible to prove the plaintiff's care and freedom from carelessness. Thus, one cannot establish a standard of care for the measurement of his own conduct on the occasion in question by showing that he has used care under similar circumstances on former occasions." Syllabus 6, 239 N.W.2d 508.

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Under this rule, evidence of habit is relevant to show that a person acted in conformity therewith, regardless of whether this evidence tends to prove care or lack of care. This is not to say that evidence of habit must be admitted whenever offered. The rule states only that such evidence is relevant; it may be excluded -- as may other relevant evidence -- under other of these rules. See, e.g., Rule 403.

Judge Burdick seconded the motion. Motion CARRIED.

RULE 407

Judge Burdick MOVED to adopt the Procedure Committee Notes, subject to style changes.

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; and

(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, generally, 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 O'Keefe seconded the motion. Motion CARRIED.

RULE 408

Judge O'Keefe MOVED to adopt the Procedure Committee Notes, subject to style changes.

The policy underlying this rule is the furtherance of compromise and settlement of disputes among parties. The general rule as to compromise finds support in North Dakota case law [Larson v. Quanrud, Brink § Reibold, 78 N.D. 70, 47 N.W.2d 743 (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 whether the amount of a judgment or the liability of a party.

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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 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 Burdick seconded the motion. Motion CARRIED.

RULE 409

Justice Vogel MOVED that § 32-39-01, NDCC, be "considered" not "superseded." Judge Burdick seconded the motion. Motion CARRIED.

Justice Vogel MOVED that the Procedure Committee Notes contain a specific reference to § 32-30-01, NDCC, and to adopt the Note as amended.

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.

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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.

Note should be made of § 32-39-01, NDCC, which prohibits the use, as evidence of liability, of a voluntary partial payment of a claim. The statute is somewhat broader than this rule as it is not limited to the payment of medical or similar expenses, but applies to payment of any part of a claim.

Mr. Rolfson seconded the motion. Motion CARRIED.

RULE 410

Justice Vogel MOVED that § 29-21-38 be "considered," not "repealed." Judge Burdick seconded the motion. Motion CARRIED.

Judge Burdick MOVED that Rule 11(d)(6), NDRCrimP be "considered," not "repealed." Mr. Rolfson seconded the motion. Motion CARRIED.

Justice Vogel MOVED that the agenda for the next meeting include the proposition of considering amending Rule 11, NDRCrimP, to conform to the current provisions of Rule 410, NDREv. Judge Burdick seconded the motion. Motion CARRIED.

Judge Burdick MOVED that the Procedure Committee Note be amended by deleting the words, "In these respects, it supersedes Rule 11(d)(6), NDRCrimP." Mr. Peterson seconded the motion. Motion CARRIED.

Judge Burdick MOVED to adopt the Procedure Committee Notes, as amended.

Rule 410 governs the admissibility of withdrawn guilty pleas, pleas of nolo contendere, or offers to plead against the person making the plea or offer. The rule prohibits admission of the pleas and offers themselves, and of statements made in connection with and relevantto the withdrawn pleas or offers. The emphasized language was added by the committee to insure that only discussion necessary to negotiation is protected.

The Rule does not prohibit the use of plea-related statements when offered for impeachment purposes or in a subsequent prosecution against the defendant for perjury or false statement.

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It should be noted that the latest amendment to Federal Rule 410, P.L. 94-149(9), 89 Stat. 805 (1975), does not allow use of plea-related evidence for impeachment purposes, and allows such evidence to be admitted in a subsequent prosecution for perjury or false statement only if the statement was made under oath, on the record, and in the presence of counsel.

Mr. Rolfson seconded the motion. Motion CARRIED.

RULE 411

Judge Burdick MOVED to amend the Procedure Committee Notes, as follows: in the 8th line, after the word "insurance," add the words, "for the benefit of a public carrier passenger"; and in the second sentence of the last paragraph after the word "need" add the word "not," and when so amended that the Procedure Committee Note be adopted.

This general prohibition against disclosure of the fact that a person is or is not insured against liability is a fair statement of present North Dakota law. See, Bischoff v. Koenig, 100 N.W.2d 159 (N.D. 1959); Beardsley v. Ewing, 40 N.D. 373, 168 N.W. 791 (1918). But, see, James v. Young, 77 N.D. 451, 43 N.W.2d 692 (1950), wherein a direct action by a third party against an insurance company was allowed on the grounds that municipal ordinance requiring insurance for the benefit of a public carrier passenger made insurer directly liable. See also, the discussion in Shermoen v. Lindsay, 163 N.W.2d 738 (N.D. 1968).

The reason for the rule is that the existence or nonexistence of liability insurance is of low probative value as to the issue of negligence, and may be prejudicial. But see the criticism of this rule and the policy underlying it in McCormick on Evidence § 201 (2d ed. 1972).

The second sentence of the rule merely states that evidence of insurance need not be excluded if offered for another purpose to which it may be relevant.

Justice Vogel seconded the motion. Motion CARRIED.

RULE 23, NDRCivP

Justice Vogel MOVED that we adopt Rule 23, NDRCivP, as prepared. Judge O'Keefe and Mr. Kraft seconded the motion.

Mr. Higgins MOVED that action on Rule 23, NDRCivP, be deferred until after the lunch recess. Judge Burdick seconded the motion. Motion CARRIED.

RECESS

Recessed to 1:30 p.m.

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RULE 23, NDRCivP (Uniform Class Actions Rule)

Justice Vogel MOVED that Rule 23, NDRCivP, be adopted, subject to style changes.

RULE 23 - UNIFORM CLASS ACTIONS RULE

(a) Commencement of a Class Action. One or more members of a class may sue or be sued as representative parties on behalf of all in a class action if:

(1) the class is so numerous or so constituted that joinder of all members, whether or not otherwise required or permitted, is impracticable; and

(2) there is a question of law or fact common to the class.

Comment

This subdivision sets forth the requirements that must be satisfied to authorize the bringing of a class action. Subdivision (b) authorizes the maintenance of a class action.

(b) Certification of Class Action.

(1) Unless deferred by the court, as soon as practicable after the commencement of a class action the court shall hold a hearing and determine whether or not the action is to be maintained as a class action and by order certify or refuse to certify the action as a class action.

(2) The court may certify an action as a class action if it finds that (A) the conditions under subdivision (a) have been satisfied, (B) a class action should be permitted for the fair and efficient adjudication of the controversy, and (C) the representative parties fairly and adequately will protect the interests of the class.

(3) If appropriate, the court may (A) certify an action as a class action with respect to a particular claim or issue, (B) certify an action as a class action to obtain one or more forms of relief, equitable, declaratory, or monetary, or (C) divide a class into subclasses and treat each subclass as a class.

Comment

In connection with the finding under paragraphs (2)(B) and (C), see subdivisions (c)(1) and (2).

(c) Criteria Considered.

(1) In determining whether the class action should be permitted for the fair and efficient adjudication of the controversy, as appropriately limited under subdivision

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(b)(3), the court shall consider, as may be applicable, and give appropriate weight to the following among other factors:

(A) whether a joint or common interest exists among members of the class;

(B) whether the prosecution of separate actions by or against individual members of the class would create a risk of inconsistent or varying adjudications with respect to individual members of the class that would establish incompatible standards of conduct for a party opposing the class;

(C) whether adjudications with respect to individual members of the class as a practical matter would be dispositive of the interests of other members not parties to the adjudication or substantially impair or impede their ability to protect their interests;

(D) whether a party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making final injunctive relief or corresponding declaratory relief appropriate with respect to the class as a whole;

(E) whether common questions of law or fact predominate over any questions affecting only individual members;

(F) whether other means of adjudicating the claims and defenses are impracticable or inefficient;

(G) whether a class action offers the most appropriate means of adjudicating the claims and defenses;

(H) whether members not representative parties have a substantial interest in individually controlling the prosecution or defense of separate actions;

(I) whether the class action involves a claim that is or has been the subject of a class action, a government action, or other proceeding;

(J) whether it is desirable to bring the class action in another forum;

(K) whether management of the class action poses unusual difficulties;

(L) whether any conflict of laws issues involved pose unusual difficulties; and

(M) whether the claims of individual class members are insufficient in the amounts or

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interests involved, in view of the complexities of the issues and the expenses of the litigation, to afford significant relief to the members of the class.

(2) In determining under subdivision (b)(2) that the representative parties fairly and adequately will protect the interests of the class, the court must find:

(A) that the attorney for the representative parties will adequately represent the interests of the class,

(B) that the representative parties do not have a conflict of interest in the maintenance of the class action, and

(C) that the representative parties have or can acquire adequate financial resources, considering subdivision (q), to assure that the interests of the class will not be harmed.

Comment

After an action has been brought as a class action, if the court determines that there is pending in another court an action which encompasses the action pending both as to general class and claim, the court hearing the action may refuse to certify the action against or on behalf of the class if it concludes that this forum is not the most appropriate one. The court in making this decision shall consider the sequence of the suits, the residence of the members of the class, where the transaction or occurrence involved took place, where the relevant evidence is available, and other pertinent facts.

(d) Order on Certification.

(1) The order of certification shall describe the class and shall state: (A) the relief sought, (B) whether the action is maintained with respect to particular claims or issues, and (C) whether subclasses have been created.

(2) The order, certifying or refusing to certify a class action, shall state the reasons for the court's ruling and its findings on the factors listed in subdivision (c)(1).

(3) An order either certifying or refusing to certify an action as a class action is an appealable order.

(4) Refusal of certification does not terminate the action, but does preclude it from being maintained as a class action.

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Comment

Paragraph (4) presupposes the existence of rules of civil procedure which will allow the action to proceed on behalf of the representative parties as properly joined parties.

Denial of certification and the allowance of a personal action under paragraph (4) does not affect any possible intervention or joinder of class members who are not representative parties under the applicable state laws.

(e) Amendment of Certification Order.

(1) The court may amend the certification order at any time before entry of judgment on the merits. The amendment may (A) establish subclasses, (B) eliminate from the class any class member who was included in the class as certified, (C) provide for an adjudication limited to certain claims or issues, (D) change the relief sought, or (E) make any other appropriate change in the order.

(2) If notice of certification has been given pursuant to subdivision (g), the court may order notice of the amendment of the certification order to be given in terms and to such members of the class as it directs.

(3) The reasons for the court's ruling shall be set forth in the amendment of certification order.

(4) An order amending the certification order is an appealable order. An order denying the motion of a member of a defendant class, not a representative party, to amend the certification order is an appealable order if the court certifies it for immediate appeal.

(f) Jurisdiction over Multi-State Classes.

(1) A court of this State may exercise jurisdiction over any person who is a member of the class suing or being sued if:

(A) a basis for jurisdiction exists, or would exist in a suit against the person, under the law of this State; or

(B) the state of residence of the class member, by class action rule or law similar to subdivision (s), has made its residents subject to the jurisdiction of the courts of this State in class actions.

(2) A resident of this State who is a member of a class suing or being sued in another state is subject to the jurisdiction of that state if by similar class action rule or law it extends reciprocal power to this State.

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Comment

The court in deciding whether to certify the action as a class action is to consider the conflict of laws problems which may be involved. See subdivision (c)(L). Those problems may exist because of the possibility of bringing the action in a jurisdiction other than that in which the operative facts occurred and because of the reach of the court beyond the state in which the court is sitting under this subdivision.

(g) Notice of Action.

(1) Following certification, the court by order, after hearing, shall direct the giving of notice to the class.

(2) The notice, based on the certification order and any amendment of the order, shall include:

(A) a general description of the action, including the relief sought, and the names and addresses of the representative parties;

(B) a statement of the right of a member of the class under subdivision (h) to be excluded from the action by filing an election to be excluded, in the manner specified, by a certain date;

(C) a description of possible financial consequences on the class;

(D) a general description of any counterclaim being asserted by or against the class, including the relief sought;

(E) a statement that the judgment, whether favorable or not, will bind all members of the class who are not excluded from the action;

(F) a statement that any member of the class may enter an appearance either personally or through counsel;

(G) an address to which inquiries may be directed; and

(H) any other information the court deems appropriate;

(3) the court's order shall prescribe the manner of notification to be used and specify the members to be notified. In determining the manner and form of the notice to be given, the court shall consider the interests of the class, the relief requested, the cost of notifying the members of the class, and the possible prejudice to members who do not receive notice.

(4) Each class member, not a representative party, whose potential monetary recovery or liability is estimated

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to exceed $100 shall be given personal or mailed notice if his identity and whereabouts can be ascertained by the exercise of reasonable diligence.

(5) For class members not given personal or mailed notice under paragraph (4), the court shall provide, as a minimum, a means of notice reasonably calculated to apprise the members of the class of the pendency of the action. Techniques designed to assure effective communication of information concerning commencement of the action shall be used which may include personal or mailed notice, notification by means of newspaper, television, radio, posting in public or other places, and distribution through trade, union, public interest, or other appropriate groups.

(6) The plaintiff shall advance the expense of notice under this subdivision if there is no counterclaim asserted. If a counterclaim is asserted the expense of notice shall be allocated as the court orders in the interest of justice.

(7) The court may order that steps be taken to minimize the expense of notice.

Comment

The hearing required by paragraph (1), if the court wishes, can be combined with the hearing required by subdivision (b)(1).

Personal mailed notice to all members of the class is not required by this Rule. See Gant v. City of Lincoln, 225 N.W.2d 549 (Neb. 1975); Cartt v. Superior Court in and for County of Los Angeles, 50 Cal.App.3d 960, 124 Cal. Rptr. 376 (Ct.App. 1975).

The type of notice to be given may vary as to the persons to be notified and the form of notice and, to some extent, the content. Paragraph (3) indicates that the court must consider a number of factors in deciding what type of notice to give.

Paragraph (8) would allow the court to order a defendant who has a mailing list of class members to cooperate with the representative parties in notifying the class members. Use of a computer or enclosing notice in a regular mailing would be possibilities.

(h) Exclusion.

(1) A member of a plaintiff class may elect to be excluded from the action unless (A) he is a representative party, (B) the certification order contains an affirmative finding on factor (A), (B) or (C) of subdivision (c)(1), or (C) a counterclaim under subdivision (k) is pending against the member or his class or subclass.

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(2) Any member of a plaintiff class entitled to be excluded under paragraph (1) who files an election to be excluded, in the manner and in the time specified in the notice, is excluded from the action and not bound by the judgment in the class action.

(3) The elections shall be made a part of the record in the action.

(4) A member of a defendant class may not elect to be excluded.

Comment

Under some circumstances members of a plaintiff class cannot elect to be excluded and subdivision (h) is drafted to cover that situation. Such situations might arise in actions comparable to those under Federal Rule 23(b)(1); see 3B, Moore's Federal Practice, ¶ 23.35. In most situations members of a plaintiff class will be permitted to elect to be excluded.

(i) Conduct of Action.

(1) The court on motion of a party or its own motion may make or amend any appropriate order dealing with the conduct of the action including, but not limited to, the following:

(A) determining the course of proceedings or prescribing measures to prevent undue repetition or complication in the presentation of evidence or argument;

(B) requiring, for the protection of the members of the class or otherwise for the fair conduct of the action, that notice be given as the court directs, of (i) any step in the action, (ii) the proposed extent of the judgment, or (iii) the opportunity of members to signify whether they consider the representation fair and adequate, to enter an appearance and present claims or defenses, or otherwise to come into the action;

(C) imposing conditions on the representative parties or on intervenors;

(D) inviting the attorney general to participate with respect to the question of adequacy of class representation;

(E) making any other order to assure that the class action proceeds only with adequate class representation; and

(F) making any order to assure that the class action proceeds only with competent representation by the attorney for the class.

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(2) A class member not a representative party may appear and have separate counsel represent him in the action.

Comment

The rules governing civil procedure in the courts of the State will normally govern procedures in class actions. Subdivision (i) covers certain matters which are found only in class actions and which deserve special consideration. Paragraph (D) does not limit the power of the attorney general to participate in litigation under other provisions of applicable law.

(j) Discovery by or Against Class Members.

(1) Discovery under applicable discovery rules may be used against class members who are not representative parties or who have not appeared only on order of the court. In deciding whether discovery should be allowed the court shall consider, among other relevant factors, the timing of the request, the subject matter to be covered, whether representatives of the class are seeking discovery on the subject to be covered, and whether the discovery will result in annoyance, oppression, undue burden or expense for the class members.

(2) Discovery by or against representative parties or those appearing is governed by the rules dealing with discovery by or against a party to a civil action.

Comment

Discovery against representative parties includes the representative parties' fee arrangement with counsel. Disclosure of this arrangement is required under subdivision (q).

(k) Counterclaims.

(1) A defendant in an action brought by a class may plead as a counterclaim any claim that the court certifies as a class action against the plaintiff class. On leave of court, the defendant may plead as a counterclaim a claim against a member of the class or a claim that the court certifies as a class action against a subclass.

(2) Any counterclaim in an action brought by a plaintiff class must be asserted before notice is given under subdivision (g).

(3) If a monetary judgment is recovered against a party on behalf of a class, the court rendering judgment may stay distribution of any award or execution of any portion of a judgment allocated to a member of the class against whom the losing party has pending an action in or out of state for a monetary judgment, and continue the stay so long as the losing party in the class action pursues the pending action with reasonable diligence.

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(4) A defendant class may plead as a counterclaim any claim on behalf of the class that the court certifies as a class action against the plaintiff. The court may certify as a class action a counterclaim against the plaintiff on behalf of a subclass or permit a counterclaim by a member of the class. The court shall order notice of the counterclaim by the class, subclass, or member of the class be given to the members of the class as the court directs, in the interest of justice.

(5) A member of a class or subclass asserting a counterclaim shall be treated as though a member of a plaintiff class for the purpose of exclusion under subdivision (h)(1).

(6) The court's refusal to allow, or the defendant failure to plead, a claim as a counterclaim in a class action does not bar the defendant from asserting the class in a subsequent action.

Comment

The expense of notification of actions involving counterclaims shall be determined as provided in subdivision (g)(7).

(1) Dismissal or Compromise.

(1) Unless certification has been refused under subdivision (b), a class action, without the approval of the court after hearing, may not be (A) dismissed voluntarily, (B) dismissed involuntarily unless based on a contested adjudication on the merits, or (C) compromised.

(2) If the court has certified the action under subdivision (b), notice of hearing of the proposed dismissal or compromise shall be given to all members of the class in a manner directed by the court. If the court has not ruled on certification, notice of hearing on the proposed dismissal or compromise may be ordered by the court which shall specify the persons to be notified and the manner in which notice is to be given.

(3) Notice given under paragraph (2) shall include a full disclosure of the reasons for the dismissal or compromise including, but not limited to, (A) any payments made or to be made in connection with the dismissal or compromise, (B) the anticipated effect of the dismissal or compromise on the class members, (C) any agreements made in connection with the dismissal or compromise, (D) a description and evaluation of alternatives considered by the representative parties and (E) an explanation of any other circumstances giving rise to the proposal. The notice also shall include a description of the procedure available for modification of the dismissal or compromise.

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(4) On the hearing on dismissal or compromise, the court may (A) as to the representative parties or a class certified under subdivision (b), permit dismissal with or without prejudice or approve the compromise, (B) as to a class not certified, permit dismissal without prejudice, (C) deny dismissal, (D) or disapprove compromise or take any other appropriate action for the protection of the class and in the interest of justice.

(5) The cost of notice given under paragraph (2) shall be paid by the party seeking dismissal, or as agreed in case of a compromise, unless the court, after hearing, orders otherwise.

(m) Effect of Judgment on Class.

(1) In a class action certified under subdivision (b) in which notice has been given under subdivision (g) or (1), a judgment as to the claim or particular claim or issue certified is binding, according to its terms, on any member of the class not filing an election of exclusion under subdivision (h). The judgment shall name or describe the members of the class who are bound by its terms.

(n) Costs.

(1) Only the representative parties and those members of the class who have appeared are liable for costs assessed against a plaintiff class.

(2) The court shall apportion the liability for costs assessed against a defendant class.

(3) Expenses of notice advanced under subdivision (g) are taxable costs in favor of the prevailing party.

Comment

The nature of other costs and assessments against parties in a class action is left to the law generally applicable in the state. Subdivision (n) merely specifies the liability of class members when costs are assessed against the class and provides for assessment of the expense of notification under subdivision (g).

(o) Relief Afforded.

(1) The court may award any form of relief consistent with the certification order including, but not limited to, equitable, declaratory, or monetary relief to individual class members or the class in a lump sum or installments, to which the party in whose favor it is rendered is entitled.

(2) Damages fixed by a minimum measure of recovery provided by any statute cannot be recovered in a class action.

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(3) If a class is awarded a monetary judgment, the distribution shall be determined as follows:

(A) the parties shall list as expeditiously as possible all members of the class whose identity can be determined without expending a disproportionate share of the recovery;

(B) the reasonable expense of identification and distribution shall be paid, with the court's approval, from the funds to be distributed;

(C) the court may order steps taken to minimize the expense of identification;

(D) the court shall supervise, and may grant or stay the whole or any portion of, the execution of the judgment and the collection and distribution of funds to the members of the class as their interests warrant;

(E) the court shall determine what amount of the funds available for the payment of the judgment cannot be distributed to members of the class individually because they could not be identified or located or because they did not claim or prove the right to money apportioned to them. That amount shall be distributed in whole or in part by the court after hearing to one or more states as unclaimed property or to the defendant.

(F) In determining the amount, if any, to be distributed to a state or to the defendant, the court shall consider the following criteria: (i) any unjust enrichment of the defendant, (ii) the willfulness or lack of willfulness on the part of the defendant; (iii) the impact of the relief granted on the defendant; (iv) the pendency of other claims against the defendant; (v) any criminal sanction imposed on the defendant; and (vi) the loss suffered by the plaintiff class.

(G) In order to remedy or alleviate any harm done, the court may impose conditions on the defendant with regard to the use of the money distributed to him.

(H) Any amount to be distributed to a state shall be distributed as unclaimed property to any state in which is located the last known addresses of the members of the class to whom distribution could not be made. If the last known addresses cannot be ascertained with reasonable diligence the court may determine by other means what portion of the unidentified or unlocated members of the class were residents of a state. A state shall receive that portion of the distribution that its residents would have received had they been identified and located. Before entering an order

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distributing any part of the amount to a state the court shall give written notice of its intention to make distribution to the attorney general of each state if any of its residents were given notice under subdivision (g) or (1) and shall afford the attorney general an opportunity to move for an order requiring payment to the state.

Comment

This section incorporates the idea of "fluid recovery," that is, use of the class recovery to benefit the class as a whole where distribution of damage awards to individual members is impracticable or a residue remains after distribution. See, State of West Virginia v. Charles Pfizer Co., 314 F.Supp. 710 (S.D. N.Y. 1979); Bebchick v. Public Utilities Commission, 318 F.2d 187 (D.C. Cir. 1963), cert. denied 83 S.Ct. 1304 (1963); Daar v. Yellow Cab Co., 433 P.2d 732, 63 Cal. Rptr 724 (1967).

(p) Attorney's Fees.

(1) Attorney's fees for representing a class are subject to control of the court.

(2) If under an applicable provision of law a defendant is entitled to attorney's fees from a plaintiff class, only representative parties and those members of the class who have appeared are liable for those fees. If a plaintiff is entitled to attorney's fees from a defendant class, the court may apportion the fees among the members of the class.

(3)If a prevailing class recovers a monetary judgment or other award that can be divided for the purpose, the court may order paid from the recovery reasonable attorney's fees and litigation expenses of the class.

(4) If the prevailing class is entitled to declaratory or equitable relief, the court may order the adverse party to pay to the class its reasonable attorney's fees and litigation expenses if permitted by law in similar cases not involving a class or the court finds that the judgment has vindicated an important public interest, but if any monetary award is also recovered, then only to the extent that a reasonable proportion of that award is insufficient to defray the fees and expenses.

(5) In determining the amount of attorney's fees for a prevailing class the court shall consider the following factors:

(A) the time and effort expended by the attorney in the litigation, including the nature, extent, and quality of the services rendered by the attorney;

(B) results achieved and benefits conferred upon the class;

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(C) the magnitude, complexity, and uniqueness of the litigation;

(D) the contingent nature of success;

(E) in cases awarding attorney's fees and litigation expenses under paragraph (4) because of the vindication on an important public interest, the economic impact on the party against whom the award is made, and

(F) appropriate factors included in the North Dakota Code of Professional Responsibility.

Comment

Courts under this rule have discretion to award attorney's fees in class actions where the class failed to win damages or equitable relief but the court feels the class action "prevailed" because the suit performed a valuable public service. See, Parham v. Southwestern Bell Telephone Co., 433 F.2d 421 (8th Cir. 1970).

Most of the factors listed in paragraph (5) derive from Lindy Bros. v. American Radiator § Standard Sanitary Corp., 487 F.2d 161 (3d Cir. 1973).

(q) Arrangements for Attorney's Fees and Expenses.

(1) Before a hearing under subdivision (b)(1) or at any other time as the court directs, the representative parties and the attorney for the representative parties shall file with the court, jointly or separately:

(A) a statement showing any amount paid or promised them by any person for the services rendered or to be rendered in connection with the action or for the costs and expenses of the litigation and the source of all of the amounts;

(B) a copy of any written agreement, or a summary of any oral agreement, between the representative parties and their attorney concerning financial arrangements or fee and

(C) a copy of any written agreement, or a summary of any oral agreement, by the representative parties or the attorney to share these amounts with any person other than a member, regular associate, or an attorney regularly of counsel with his law firm. This statement shall be supplemented promptly if additional arrangements are made.

(2) Upon a determination that the costs and litigation expenses of the action cannot reasonably and fairly be defrayed by the representative parties or by other available sources, the court by order may authorize and control the solicitation and expenditure of voluntary contributions for this purpose from members of the

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class, or advances by the attorneys or others, or both, subject to reimbursement from any recovery that may be obtained for the class. The court may order any available funds so contributed or advanced to be applied to the payment of any costs taxed in favor of a party opposing the class.

Comment

Subdivision (q) requires this information to be disclosed in order to assist the court in making determinations as to adequacy of representation by the representative parties and by the attorney for the class, as to any possible collusion between the representative parties and the attorney for the class, and as to any possible conflict of interests among the representative parties and the class members.

(r) Statute of Limitations. The statute of limitations is tolled for all class members upon the commencement of an action asserting a class action. The statute of limitations resumes running against:

(A) a class member upon filing an election of exclusion;

(B) a class member included in the class at the time the action was commenced, upon entry of a certification order, or of an amendment thereof eliminating him from the class;

(C) the class members, except the representative parties, upon entry of an order under subdivision (b) refusing to certify the action as a class action; and

(D) the class members upon dismissal of the action other than on the merits.

Comment

American Pipe and Construction Co. v. Utah, 415 U.S. 952, 94 S.Ct. 756, 38 L.Ed.2d 713 (1974), held that the commencement of a class action under Federal Rule 23 suspends the applicable statute of limitations to all members of the class pending a determination of class action status. Subdivision (r) codify the American Pipe case.

(s) Uniformity of Application and Construction. This Rule shall be construed and applied to effectuate its genera purpose to make uniform the law with respect to the subject of this Rule among states enacting it.

(t) Short Title. This Rule may be cited as the "Uniform Class Actions Rule."

Judge Hatch and Judge O'Keefe seconded the motion. Motion CARRIED.

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UNIFORM CERTIFICATION OF QUESTIONS OF LAW RULE

Justice Vogel MOVED to adopt the Uniform Certification of Questions of Law Rule, and that it be assigned the number of Rule 47, North Dakota Rules of Appellate Procedure.

(a) Power to Answer. The Supreme Court may answer questions of law certified to it by the Supreme Court of the United States, a Court of Appeals of the United States, a United States District Court, or the highest appellate court or the intermediate appellate court of any other state, when requested by the certifying court if there are involved in any proceeding before it questions of law of this State which may be determinative of the cause then pending in the certifying court and as to which it appears to the certifying court there is no controlling precedent in the decisions of the Supreme Court of this State.

Comment

(By National Conference of Commissioners on Uniform State Laws)

This Rule provides that the highest court of the state has the right to answer questions certified to it; is not mandatory. Under some circumstances it is possible that the court might decide not to answer a certified question. See, for example, Atlas Life Insurance Co. v. W. I. Southern, Inc., 306 U.S. 563 (1939), and National Labor Relations Board v. White Swan, 313 U.S. 23 (1941) (in both cases the Supreme Court of the United States refused to answer certified questions.)

The courts listed as the court which may certify questions are the Supreme Court of the United States, the federal Courts of Appeals and the federal District Courts, which would include three-judge District Courts under 28 U.S.C. 2281 and 2284. Also included are "the highest appellate court or the intermediate appellate court" of other states. This provision allows certification of questions in conflicts cases.

(b) Method of Invoking. This Rule may be invoked by an order of any of the courts referred to in paragraph (a) upon the court's own motion or upon the motion of any party to the cause.

(c) Contents of Certification Order. A certification order shall set forth

(1) the questions of law to be answered; and

(2) a statement of all facts relevant to the questions certified and showing fully the nature of the controversy in which the questions arose.

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Comment

(By National Conference of Commissioners on Uniform State Laws)

The certification order in the statement of facts should present all of the relevant facts. The purpose is to give the answering court a complete picture of the controversy so that the answer will not be given in a vacuum. The certifying court could include exhibits, excerpts from the record, summary of the facts found by the court, and any other document which will be of assistance to the answering court.

(d) Preparation of Certification Order. The certification order shall be prepared by the certifying court, signed by the judge presiding at the hearing, and forwarded to the Supreme Court by the clerk of the certifying court under its official seal. The Supreme Court may require the original or copies of all or of any portion of the record before the certifying court to be filed with the certification order, if, in the opinion of the Supreme Court, the record or portion thereof may be necessary in answering the questions.

(e) Costs of Certification. Fees and costs shall be the same as in civil appeals docketed before the Supreme Court and shall be equally divided between the parties unless otherwise ordered by the certifying court in its order of certification.

(f) Briefs and Argument. Proceedings in the Supreme Court shall be those provided in the North Dakota Rules of Appellate Procedure.

Comment

(By National Conference of Commissioners on Uniform State Laws)

This paragraph provides for incorporation by reference of the local rules or statutes governing briefs and arguments

(g) Opinion. The written opinion of the Supreme Court stating the law governing the questions certified shall be sent by the clerk under the seal of the Supreme Court to the certifying court and to the parties.

(h) Power to Certify. The Supreme Court of this State, on its own motion or the motion of any party, may order certification of questions of law to the highest court of any state when it appears to the certifying court that there are involved in any proceeding before the court questions of law of the receiving state which may be determinative of the cause then pending in the certifying court and it appears to the certifying court that there are no controlling precedents in the decisions of the highest court.

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Comment

(By National Conference of Commissioners on Uniform State Laws)

Paragraphs (h) and (i) allow a state to provide for certifications from the courts of that state to the highest court of another state. This could prove to be very useful in the case of conflicts of laws where State A's court wishes to apply the law of B. If B's law is unclear on the point, a question could be certified. This is the reciprocal provision of paragraph (a).

(1) Procedure on Certifying. The procedures for certification from this state to the receiving state shall be those provided in the laws of the receiving state.

(j) Severability. If any provision of this Rule or the application thereof to any person, court, or circumstance is held invalid, the invalidity does not affect other provisions or applications of the Rule which can be given effect without the invalid provision or application, and to this end the provisions of this Rule are severable.

(k) Construction. This Rule shall be so construed as to effectuate its general purpose to make uniform the law of those states which enact it.

(1) Short Title. This Rule may be cited as the Uniform Certification of Questions of Law Rule.

Judge Burdick seconded the motion. Motion CARRIED.

RULE 43, NDRCivP

Judge Burdick distributed an explanation of the Rules for assessment of jury expense.

Mr. Rolfson MOVED to amend Rule 43(a), NDRCivP, to read as follows, and when so amended that it be adopted.

(a) In all trials the testimony of witnesses shall be taken orally in open court, unless otherwise provided by statute or these rules. All evidence shall be admitted which is admissible under the statutes of this State, under the North Dakota Rules of Evidence, or other Rules adopted by the North Dakota Supreme Court.

Judge Burdick seconded the motion. Motion CARRIED.

RULE 26, NDRCrimP

Mt. Rolfson MOVED to amend Rule 26, NDRCrimP, to read as follows, and when so amended that it be adopted.

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In all trials the testimony of witnesses shall be taken orally in open court, unless otherwise provided by statute or these rules. All evidence shall be admitted which is admissible under the statutes of this State, under the North Dakota Rules of Evidence, or other Rules adopted by the North Dakota Supreme Court.

Judge Burdick seconded the motion. Motion CARRIED.

APPROVAL OF MINUTES

Judge Burdick MOVED to approve the Minutes of the June 3-4, 1976, meeting. Judge Murray seconded the motion. Motion CARRIED.

NEXT MEETING DATE

Mr. Rolfson MOVED that the next meeting of the Special Procedure Committee be held on January 10, 1977, at 1:30 p.m., and continue to no later than noon on January 11, 1977. Judge Murray seconded the motion. Motion CARRIED.

___________________________
Eveleen Klaudt, Secretary