The State Bar Association of North Dakota Winter 2014 Gavel Magazine | Page 24

amendments to ruLes oF
eVidenCe taKe eFFeCt marCh 1

Mike Hagburg

Attorney at Law

The North Dakota Supreme Court has
adopted amendments to the Rules of Evidence effective March 1. The amendments
are based on the December 2011 amendments to the Federal Rules of Evidence.
Most of the evidence rule amendments
taking effect in March are form and style
amendments only and are not intended to
affect the result in any ruling on evidence
admissibility. Practitioners who use form
motions or pleadings that include text
from the evidence rules should review their
documents to ensure they include the latest
amendments.
The Court made some substantive
amendments to the evidence rules. rule
707, analytical report admission; Confrontation, which the Court developed
itself, was amended to clarify that, if the
defendant requests a person to testify about
an analytical report at trial, the person
must be someone who made a testimonial
statement in the report. The Court also
lengthened the rule’s deadlines: the prosecution must serve a copy of the analytical
report on the defendant no later than 60
days before the date set for trial and the defendant has until 45 days before the date set
for trial to object to the introduction of the
report. A further amendment gives the trial
court discretion to modify these deadlines.
rule 412, sex-offense Cases: The Victim’s Sexual Behavior or Predisposition,
was amended to establish a standard for the
admission of sexual behavior evidence in
civil cases. The amendment was based on
the language of the federal rule.
rule 803, exceptions to the rule against
hearsay regardless of Whether the de-

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clarant is available as a Witness, and rule
902, evidence that is self-authenticating,
were amended to ease foundation requirements for admission of evidence under
the business records exception. Rule 803
was amended to allow foundation to be
established by certification; Rule 902 was
amended to establish standards for the
certificate. Rule 902 also provides an opposing party an opportunity to test the
adequacy of the foundation provided in the
certificate.
The 500 series evidence rules on privilege
contain significant amendments, some of
which affect evidence admissibility. These
rules are not based on the federal rules –
they were adapted from the 1974 version
of the Uniform Rules of Evidence. The new
amendments generally follow the 1999
Uniform Rules of Evidence.
in rule 501 - Privileges recognized
only as Provided, the term “writing” was
replaced with the term “record” to account
for electronic records and documents.
in rule 502 - Lawyer-Client Privilege,
new language was included to assure that a
client does not lose the benefit of the privilege in situations wher HH