PROCEDURAL RULE AMENDMENTS TAKE EFFECT MARCH 1
MIKE HAGBURG Attorney at Law
The North Dakota Supreme Court has made amendments to the Rules of Appellate Procedure , Civil Procedure , Criminal Procedure , Evidence , and the Administrative Rules . The amendments take effect March 1 .
The most significant change is the elimination of the appendix requirement on appeal . Appellate Rules 10 , 21 , 25 , 27 , 28 , 29 , 30 , 31 , 32 , and 40 were amended to require direct reference to the record rather than to an appendix .
Appellate Rule 35.1 on summary disposition was amended to allow the court to affirm the judgment of the district court , as well as the verdict of a jury , if the appellant ’ s brief does not contain the minimum requirements listed in N . D . R . App . P . 28 .
Civil Procedure Rule 30 on depositions was amended to require a party serving a deposition notice or subpoena on an organization to promptly contact the subject organization to confer about who will be designated to testify . The amendments are based on those made to the federal rule in December 2020 . The amended language is intended to encourage a candid exchange among the parties about the purpose of the deposition so the appropriate witness can be identified to testify .
Several criminal procedure rules were amended . Rule 11 on pleas , Rule 12 on pleadings and pretrial motions and Rule 31 on jury verdicts were amended to supersede N . D . C . C . §§ 29-16-01 , 29-21-16 , and 29-22-33 . N . D . Const . Art . VI , § 3 , gives the Court power to promulgate procedural rules that take precedence over procedural laws made by the legislature . The superseded statutes referred to the outmoded plea of “ once in jeopardy .” Rules 11 , 12 , and 31 have long contained language indicating that “ once in jeopardy ” is not a plea recognized under the Rules of Criminal Procedure .
The Court ’ s superseding of these statutes does not change a defendant ’ s substantive right to claim a double jeopardy defense as allowed by N . D . Const . Art . I , § 12 , and N . D . C . C . § 29-01-07 . The procedure for raising this defense , however , is not by a plea but as an affirmative defense as noted in Rule 31 ( e )( 2 ).
Meanwhile , Rule 12.2 on notice of mental condition defense was amended to update obsolete statutory references in the explanatory note .
Rule 15 on depositions was amended to allow an in-state deposition in a criminal case to be taken at a location agreed upon by the parties or designated by the court . The amendment was intended to eliminate any perceived requirement that a criminal deposition be held at the place where the trial will be conducted if the parties can ’ t agree about an alternate location .
Rule 24 on trial jurors was amended to require that a court find on the record an overriding interest for courtroom closure before allowing an individual examination of a prospective juror in chambers or a closed courtroom . The amendments are intended to be consistent with the requirements for courtroom closure set out by the U . S . Supreme Court in Waller v . Georgia 467 U . S . 39 ( 1984 ). The rule ’ s language allowing private individual examination of prospective jurors has been retained , but now application of the Waller factors is required before such examination can take place .
Amendments to two rules of evidence were made based on federal rule changes . Rule 404 on character evidence was amended to impose additional notice requirements when the prosecution in a criminal case seeks to present evidence of other crimes , wrongs , or acts . Rule 807 on the residual exception was amended to clarify the standards for admission of evidence under the exception .
Finally , Administrative Rule 52 on reliable electronic means proceedings was amended to clarify the extent of the rule ’ s limitation on remote witness testimony when a criminal defendant objects . The amendment to Rule 52 specifies that this limitation applies only at trial , which is consistent with state case law holding that the right to confrontation is a trial right . See State v . Woinarowicz , 2006 ND 179 .
The amended rules can be viewed at the state courts website , www . ndcourts . gov .
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