(a) In Open Court. At trial, the witnesses' testimony must be taken in open court unless a statute, the Rules of Evidence, these rules, or other court rules provide otherwise. For good cause, or on agreement of the parties, and with appropriate safeguards, the court may permit testimony in open court by contemporaneous transmission from a different location. A party must give notice if a witness is unable to testify orally or if testimony by contemporaneous transmission may be necessary. (b) Evidence on a Motion. When a motion relies on facts outside the record, the court may hear the matter on declarations or may hear it wholly or partly on oral testimony or on depositions. (c) Interpreter. If a person with limited English proficiency or a deaf person is involved in a proceeding as a party, witness, person with legal decision-making authority, or person with a significant legal interest in the matter, the court must provide an interpreter. Joint Procedure Committee Minutes of January 30, 2020, page 25; January 29-30, 2009, pages 34-35; January 29-30, 1998, pages 11-13; September 25-26, 1997, pages 10-11; November 29-30, 1979, page 16; April 26-27, 1979, pages 17-18; September 23-24, 1976, page 79; June 3-4, 1976, pages 16-18; Fed.R.Civ.P. 43.
Rule 43 was amended, effective 1976;1/1/1980;3/1/1999;3/1/2011;3/1/2014. 3/1/2021. The explanatory note was amended 8/1/2015.Subdivision (a) was amended, effective3/1/1999, to follow the 1996 federal amendment. See 1996 Advisory Committee Note, Fed.R.Civ.P. 43. The requirement for testimony to be taken orally is deleted. Former subdivision (b) on scope of examination and cross-examination was deleted, effective3/1/2011. These topics are covered in the Rules of Evidence. The federal rule contains a subdivision entitled "Affirmation Instead of an Oath." Affirmations and oaths are governed by N.D.R.Ct. 6.10 (Courtroom Oaths).Subdivision (c) on interpreters was added, effective3/1/2014. It is intended to reflect the American Bar Association Standards for Language Access in Courts. N.D.Sup.Ct.Admin.R. 50 provides guidance on interpreter qualifications and requirements and detailed information on payment for interpreter services. Under Admin. Rule 50, a party in a civil case may be required to reimburse the court for interpreter costs based upon ability to pay.Rule 43 was amended, effective3/1/2011, in response to the12/1/2007, revision of the Federal Rules of Civil Procedure. The language and organization of the rule were changed to make the rule more easily understood and to make style and terminology consistent throughout the rules. Rule 43 was amended effective 3/1/2021, to delete the term "affidavit" and replace it with "declaration." This amendment was made in response to N.D.C.C. ch. 31-15, which allows anyone to make an unsworn declaration that has the same effect as a sworn declaration, such as an affidavit. N.D.C.C. § 31-15-05 provides the required form for an unsworn declaration.STATUTES AFFECTED: SUPERSEDED: Sections 31-0122, 31-0202, 31-0206, NDRC 1943. CONSIDERED: N.D.C.C. chs. 28-33, 31-15; § 31-01-11. N.D.R.Civ.P. 11. (Signing of Pleadings, Motions and Other Papers; Representations to Court; Sanctions); Rules 101 (Scope), 103 (Rules on Evidence), 104 (Preliminary Questions), 603 (Oath or Affirmation), 607 (Who May Impeach), and 611 (Mode and Order of Interrogation and Presentation), N.D.R.Ev.