CHAPTER 31-04 GENERAL PROVISIONS 31-04-01. Methods of taking testimony of witnesses

Testimony of witnesses may be taken by: 1

2. Deposition

3. Oral examination

Affidavit

31-04-02. Affidavit defined

An affidavit is a written declaration under oath made without notice to the adverse party

31-04-03. Deposition defined

A deposition is a written declaration under oath made upon notice to the adverse party for the purpose of enabling the adverse party to attend and cross-examine, or upon written interrogatories

31-04-04. Oral examination defined

An oral examination is an examination in the presence of the jury or tribunal which is to decide the fact or act upon it, the testimony being heard by the jury or tribunal from the lips of the witness

31-04-04.1. Videotaped statement of child sexual offense victim - Criteria for admission as evidence

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In any prosecution for a violation of section 12.1-20-03, 12.1-20-03.1, 12.1-20-04, 12.1-20-05, 12.1-20-06, 12.1-20-07, or 12.1-20-11 in which the victim is less than fifteen years of age, the oral statement of the child victim may be recorded before trial and, subject to subsection 2, is admissible as evidence in any court proceeding regarding the offense if the following conditions are satisfied: a

The court determines there is reasonable cause to believe that the child victim would experience serious emotional trauma as a result of in-court participation in the proceeding; The accused must be given reasonable written notice of the time and place for taking the videotaped statement; The accused must be afforded the opportunity to hear and view the testimony from outside the presence of the child by means of a two-way mirror or other similar method that will ensure that the child cannot hear or see the accused; The accused must have the opportunity to communicate orally with counsel by electronic means while the videotaped statement is being made; and All questioning must be done by the prosecutor or counsel for the defendant unless the defendant is an attorney pro se. An attorney pro se must conduct all questioning from outside the presence of the child. Upon request of any of the parties or upon the determination of the court that it would be appropriate, the court may appoint a person who is qualified as an expert and who has dealt with the child in a therapeutic setting to aid the court throughout proceedings conducted under this section and the court may appoint a guardian ad litem to protect the interests of the child

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A child victim's videotaped statement is admissible pursuant to subsection 1 if the court finds that the child is unavailable as a witness to testify at trial and, upon viewing the videotape recording before it is shown to the jury, determines that it is sufficiently reliable and trustworthy and that the interests of justice will best be served by admission of the statement into evidence. For purposes of this subsection, "unavailable" includes a determination, based on medical or psychological evidence or expert testimony, that the child would suffer serious emotional or psychological strain if 2

Page No. 1 required to testify at trial. The court, in making its findings and determinations under this subsection, shall consider at least the following: a

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The nature of the offense; The significance of the child's testimony to the case; The child's age; The child's psychological maturity and understanding; and The nature, degree, and duration of potential injury to the child from testifying

31-04-04.2. Use of audiovisual equipment for the testimony of minors or disabled adult witnesses

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At the time of trial, if the witness is a minor or is a disabled adult as defined in section 12.1-31-07, the court may order the witness's testimony be taken in a room other than the courtroom and be televised by audiovisual equipment in the courtroom if: a

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The testimony is taken during the proceeding; The judge determines the testimony of the witness in the presence of the defendant would result in the witness suffering serious emotional distress or trauma that would impact the ability of the witness to reasonably communicate; and Audiovisual equipment is available

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To obtain an order authorizing the use of audiovisual equipment for testimony by a minor or disabled adult witness, the party shall file a written motion with the court no later than fourteen days before the trial

3. Only the prosecuting attorney, attorney for the defendant, guardian ad litem, and the judge may question the minor or disabled adult witness

The following individuals may be in the room with the witness when the minor or disabled adult provides testimony: a

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The prosecuting attorney; The guardian ad litem; The judge while administering the oath; The operators of the audiovisual equipment; By order of the court, an individual whose presence contributes to the welfare and well-being of the witness, including an individual who has dealt with the witness in a therapeutic setting; and An attorney representing the defendant

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The judge and defendant must be allowed to communicate with the individuals in the room where the witness is testifying through audiovisual equipment or by meeting outside the presence of the witness

This section does not preclude the presence of both the witness and the defendant in the courtroom at the same time for purposes of identifying the defendant

31-04-05. Use of affidavits

An affidavit may be used: To verify a pleading

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To prove the service of a summons, notice, or other process in an action

To obtain a provisional remedy

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To obtain an examination of a witness

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To obtain a stay of proceedings

6. Upon a motion

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In any other case permitted by law

31-04-06. How proof of publication made

Proof of the publication of a document or notice required by law or by court order to be published in a newspaper may be made by the affidavit of the publisher of the newspaper, or the publisher's designee, annexed to a copy of the document or notice, specifying the paper in which and the times when the publication was made

Page No. 2 31-04-07. Where and how affidavits may be made

An affidavit may be made in or out of this state before any person authorized to administer an oath

31-04-08. Procedure for securing affidavit of person refusing to make the same

When any party intends to make or oppose a motion in any court and it shall be necessary for the party to have the affidavit of any person who shall have refused to make the same, such court, by order, may appoint a referee to take the affidavit or deposition of such person. Such person may be subpoenaed and compelled to attend and make an affidavit before such referee the same as before a referee to whom an action is referred to try an issue, and the fees of such referee for such service shall be three dollars per day

31-04-09. No title required to affidavits

It shall not be necessary to entitle an affidavit in the action, but an affidavit made without a title or with a defective title shall be as valid and effectual for every purpose as if it were duly entitled, if it intelligibly refers to the action or proceeding in which it is made

evidence

31-04-10. Form and contents of certificate for certifying copies to be used as Whenever a copy of a writing is certified for the purpose of evidence, the certificate must state in substance that the copy is a correct copy of the original, or of a specified part thereof, as the case may be. The certificate must be under the official seal of the certifying officer, if there is any, or if such officer is a clerk of a court having a seal, under the seal of such court

31-04-11. Mediation - Inadmissibility of evidence - Exception

When persons agree to conduct and participate in a mediation for the purpose of compromising, settling, or resolving a dispute, evidence of anything said or of any admission made in the course of the mediation is inadmissible as evidence and disclosure may not be compelled in any subsequent civil proceeding except as provided in this section. This section does not limit the compulsion nor the admissibility of evidence if: The evidence relates to a crime, civil fraud, or a violation under the Uniform Juvenile Court Act; The evidence relates to a breach of duty by the mediator; The validity of the mediated agreement is in issue; or All persons who conducted or otherwise participated in the mediation consent to disclosure

31-04-12. Expressions of empathy

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A statement, affirmation, gesture, or conduct of a health care provider, or health care provider's employee or agent, which expresses apology, sympathy, commiseration, condolence, compassion, or benevolence to a patient or to a patient's relative or representative is not admissible as evidence of liability or as an admission against interest in a civil action, arbitration proceeding, or administrative hearing regarding the health care provider

For purposes of this section, unless the context otherwise requires: a

"Health care provider" means: (1) An individual licensed or certified by the state to deliver health care; (2) A hospital or clinic, including an ambulatory surgery center or group of physicians operating a clinic or outpatient care facility, or a professional corporation or other professional entity comprised of such health care providers as permitted by the laws of this state; and (3) A nursing, basic, or assisted living facility licensed by this state or by any other health care organization

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"Relative" means an individual who has a relationship to the patient by marriage, blood, or adoption

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"Representative" means a legal guardian, attorney, person designated to make decisions on behalf of a patient under a health care directive, or any person recognized in law or custom as a patient's agent

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