North Dakota's rule on evidence law turns on a feature the national template does not capture: North Dakota evidence practice is organized under the North Dakota Rules of Evidence. Relevance starts at N.D. R. Evid. 401, 403; hearsay starts at N.D. R. Evid. 801, 802. The controlling authority is North Dakota Rules of Evidence. Authenticity is a separate fight under N.D. R. Evid. 901, 902. Depositions at trial: N.D. R. Civ. P. 30 and 32 govern civil depositions and trial use. N.D. R. Crim. P. 16 controls criminal discovery; prior testimony may be admitted under N.D. R. Evid. 804(b)(1).
Contents
- General standards of admissibility
- Character evidence
- Hearsay: start with the definition
- Party admissions
- Business records
- Important hearsay exceptions that do not require unavailability
- Declarant unavailable
- Dying declarations
- Medical diagnosis or treatment statements
- Use of depositions at trial
- Authenticity: why it matters and how to prove it
- Practice checklist
- Frequently asked questions
Worked example under North Dakota law
The illustration below uses only rules already stated for North Dakota. It is a research hypothetical, not a prediction of what a court will do.
A lawyer in North Dakota wants to offer a medical record, a party email, and a statement the declarant made while believing death was imminent.
- Clear relevance and unfair prejudice under N.D. R. Evid. 401, 403.
- If the email is the opposing party's, test N.D. R. Evid. 801(d)(2) before the hearsay definition in N.D. R. Evid. 801, 802.
- For the medical record, lay the business-records foundation in N.D. R. Evid. 803(6) and the treatment purpose in N.D. R. Evid. 803(4).
- For the deathbed statement, meet N.D. R. Evid. 804(b)(2), then authenticate every exhibit under N.D. R. Evid. 901, 902.
North Dakota keeps hearsay, character, and authenticity on different rules inside the North Dakota Rules of Evidence. Winning one does not win the others.
General standards of admissibility
North Dakota starts every evidence dispute with relevance and unfair prejudice. Under N.D. R. Evid. 401, 403, evidence is relevant when it has any tendency to make a fact of consequence more or less probable, and relevant evidence is still excluded when its probative value is substantially outweighed by unfair prejudice, confusion, or waste of time. Preliminary questions of admissibility are for the court; conditional relevance and limited-purpose instructions keep otherwise-usable proof from becoming a Trojan horse for propensity or truth-of-the-matter use.
North Dakota integrates selected provisions in N.D.C.C. ch. 31 alongside court rules. Rural courts apply the same authentication standards as urban dockets.
Practice tip: articulate the theory of relevance in one sentence before citing the exception. Lawyers who lead with "it's a business record" without explaining what fact the record proves often lose the 403 balance even when the hearsay foundation is clean.
Character evidence
Character evidence in North Dakota is governed by N.D. R. Evid. 404, 405. The default rule is familiar: evidence of a person's character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait. The same body of law then carves out the classic exceptions — essential-element character, accused-opens-the-door reputation or opinion, and other-acts evidence offered for a non-propensity purpose such as motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake.
Other-acts notice, 403 balancing, and limiting instructions do most of the real work. In criminal cases, prosecutors who dump prior misconduct without a specific non-propensity theory invite reversal; defense counsel who open the door to good-character testimony without anticipating rebuttal create the very propensity inference the rules were designed to police.
North Dakota character-evidence opinions
STATE of North Dakota, Plaintiff and Appellee, v. Jeffrey Dean ANDERSON, Defendant and Appellant
…(3) N.D.R.Ev. 404(b), the evidence constitutes inadmissible character evidence. The State resisted the motion. The trial court denied Anderson’s motion in limine, finding the letters to be relevant; not unfairly prejudicial; and not character evidence. [¶ 4] A jury found Anderson guilty on all seven counts. Anderson challenges the conviction, arguing the trial court erred by de…
STATE of North Dakota, Plaintiff and Appellee, v. Jeffrey Dean ANDERSON, Defendant and Appellant is worth reading on North Dakota character evidence because the court put the point in its own words: "N.D.R.Ev. 404(b), the evidence constitutes inadmissible character evidence. The State resisted the motion. The trial court denied Anderson’s motion in limine, finding the letters to be relevant; not unfairly prejudicial; and not character evidence." Use that passage as the starting point, then read the facts that precede it.
STATE of North Dakota, and v. Thomas DOPPLER, Sr., and
STATE of North Dakota, and v. Thomas DOPPLER, Sr., and, 2013 N.D. LEXIS 42 (2013)
…rictly for impeachment purposes into using it improperly as character evidence. State v. Schmeets, 2009 ND 163, ¶ 15, 772 N.W.2d 623. [¶ 17] We have “warned of the dangers inherent in allowing evidence of other acts to show propensity and of tempting a jury to convict a defendant for actions other than the charged misconduct.” Schmeets, 2009 ND 163, ¶ 15, 772 N.W.2d 623 (quotat…
Practitioners open STATE of North Dakota, and v. Thomas DOPPLER, Sr., and when North Dakota character evidence turns on the distinction in this sentence: "State v. Schmeets, 2009 ND 163, ¶ 15, 772 N.W.2d 623. [¶ 17] We have “warned of the dangers inherent in allowing evidence of other acts to show propensity and of tempting a jury to convict a defendant for actions other than the charged misconduct." Do not lift it out of the facts the court was deciding.
STATE of North Dakota, Plaintiff and Appellee, v. Richard Eugene McINTYRE, Jr., Defendant and Appellant
…haracter is required depends upon the purpose for which the character evidence is being admitted. The rule is summarized, with supporting authorities, in Annotation, Admissibility Of Evidence As To Other’s Character Or Reputation For Turbulence On Question Of Self-Defense By One Charged With Assault Or Homicide, 1 A.L.R.3d 571, 596 & 601 (1965): “It appears to be well establish…
STATE of North Dakota, Plaintiff and Appellee, v. Richard Eugene McINTYRE, Jr., Defendant and Appellant is worth reading on North Dakota character evidence because the court put the point in its own words: "The rule is summarized, with supporting authorities, in Annotation, Admissibility Of Evidence As To Other’s Character Or Reputation For Turbulence On Question Of Self-Defense By One Charged With Assault Or Homicide, 1 A.L.R." Use that passage as the starting point, then read the facts that precede it.
STATE of North Dakota, and v. Rodney Ray CHISHOLM, and
STATE of North Dakota, and v. Rodney Ray CHISHOLM, and, 2012 N.D. LEXIS 131 (2012)
…d Donald Chisholm in self-defense. He introduced voluminous character evidence from multiple witnesses, in eluding family members, indicating that Donald Chisholm was confrontational, aggressive, petty, bitter, condescending, arrogant, and “[m]ad at the world ... and everybody in it.” Rodney Chisholm testified extensively about Donald Chisholm’s abusive nature and that he was a…
North Dakota opinions such as STATE of North Dakota, and v. Rodney Ray CHISHOLM, and are cited where character evidence is disputed. The court stated: "Donald Chisholm in self-defense. He introduced voluminous character evidence from multiple witnesses, in eluding family members, indicating that Donald Chisholm was confrontational, aggressive, petty, bitter, condescending, arrogant, and “[m]ad at the world ... and everybody in it." That is the language to brief; the rest of the decision supplies the procedural posture.
CITY OF FARGO, Plaintiff and Appellee v. David Alan HABIGER, Defendant and Appellant
…r misinterprets the law.” Gagnon, at ¶ 9. [¶ 32] Generally, character evidence may not be introduced to show that a person acted in conformity to character; except, an accused may offer evidence of a pertinent trait of character. N.D.R.Ev. 404 (explanatory note). Rule 404, N.D.R.Ev., governs the admissibility of character evidence by a criminal defendant at trial. Rule 404, N.D…
On character evidence, CITY OF FARGO, Plaintiff and Appellee v. David Alan HABIGER, Defendant and Appellant speaks to the North Dakota dispute in this passage: "Gagnon, at ¶ 9. [¶ 32] Generally, character evidence may not be introduced to show that a person acted in conformity to character; except, an accused may offer evidence of a pertinent trait of character. N.D.R.Ev. 404 (explanatory note). Rule 404, N.D.R.Ev." The surrounding opinion shows how the court applied that language to the record.
Hayden v. Medcenter One, Inc.
Hayden v. Medcenter One, Inc., 2013 ND 46 (2013)
…rictly for impeachment purposes into using it improperly as character evidence. State v. Schmeets , 2009 ND 163, ¶ 15, 772 N.W.2d 623. [¶17] We have “warned of the dangers inherent in allowing evidence of other acts to show propensity and of tempting a jury to convict a defendant for actions other than the charged misconduct.” Schmeets , 2009 ND 163, ¶ 15, 772 N.W.2d 623 (quota…
Practitioners open Hayden v. Medcenter One, Inc. when North Dakota character evidence turns on the distinction in this sentence: "State v. Schmeets , 2009 ND 163, ¶ 15, 772 N.W.2d 623. [¶17] We have “warned of the dangers inherent in allowing evidence of other acts to show propensity and of tempting a jury to convict a defendant for actions other than the charged misconduct." Do not lift it out of the facts the court was deciding.
STATE of North Dakota, Plaintiff and Appellee, v. Daniel FERGUSON, Defendant and Appellant
…in admitting this evidence because it is highly prejudicial character evidence which is inadmissible under Rule 404(b), N.D.R.Ev.: "Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. However, it may be admissible for other purposes, such as proof of motive, opportunity, intent, p…
On character evidence, STATE of North Dakota, Plaintiff and Appellee, v. Daniel FERGUSON, Defendant and Appellant speaks to the North Dakota dispute in this passage: "Rule 404(b), N.D.R.Ev.: 'Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith." The surrounding opinion shows how the court applied that language to the record.
Hearsay: start with the definition
Most hearsay objections in North Dakota are won or lost on the definition, not on an exception. Under N.D. R. Evid. 801, 802, hearsay is an out-of-court statement offered to prove the truth of the matter asserted. Non-hearsay purposes — verbal acts, effect on the listener, notice, circumstantial evidence of state of mind, and impeachment — remain available when the proponent can articulate them without asking the jury to believe the declarant.
Layered hearsay (hearsay within hearsay) requires an exception or exclusion for each layer. Machine-generated data and non-assertive conduct sit outside the hearsay definition in FRE-aligned jurisdictions, but they still need authenticity and, often, expert or business-records foundations.
North Dakota hearsay opinions
STATE of North Dakota, Plaintiff and Appellee v. Jennifer Jean Sandvig THOMPSON, Defendant and Appellant
…ovide proper foundation for the evidence, the messages were hearsay, and a picture of one message was improperly admitted for impeachment. We affirm the judgment. Because the judgment states it was entered upon a guilty plea, however, we remand to the district court to correct that clerical error. I [¶ 2] The State charged Thompson with simple assault upon a family or household…
On hearsay, STATE of North Dakota, Plaintiff and Appellee v. Jennifer Jean Sandvig THOMPSON, Defendant and Appellant speaks to the North Dakota dispute in this passage: "We affirm the judgment. Because the judgment states it was entered upon a guilty plea, however, we remand to the district court to correct that clerical error." The surrounding opinion shows how the court applied that language to the record.
STATE of North Dakota, Plaintiff and Appellee, v. Byron MANKE, Defendant and Appellant
…oratory report in evidence because the laboratory report is hearsay and does not come within the exception to the hearsay rule set forth in Rule 803(8), N.D.R.Ev. Technically, the laboratory report prepared by Aaron Rash is hearsay. Rule 801(c), N.D.R.Ev., defines “hearsay” as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered i…
North Dakota opinions such as STATE of North Dakota, Plaintiff and Appellee, v. Byron MANKE, Defendant and Appellant are cited where hearsay is disputed. The court stated: "Rule 803(8), N.D.R.Ev. Technically, the laboratory report prepared by Aaron Rash is hearsay. Rule 801(c), N.D.R.Ev." That is the language to brief; the rest of the decision supplies the procedural posture.
In the Interest of B.B., a child. Carmell F. Mattison, Grand Forks County Assistant State's Attorney, and v. B.B
…tigation. S.B. objected to the report, arguing it contained hearsay within hearsay, but the juvenile court concluded the report was a business record and admitted it into evidence under N.D.R.Ev. 803(6). Koop also testified that since 1996, Social Services had received 29 separate abuse or neglect reports regarding this family, which resulted in 18 investigations and assessment…
Practitioners open In the Interest of B.B., a child. Carmell F. Mattison, Grand Forks County Assistant State's Attorney, and v. B.B when North Dakota hearsay turns on the distinction in this sentence: "S.B. objected to the report, arguing it contained hearsay within hearsay, but the juvenile court concluded the report was a business record and admitted it into evidence under N.D.R.Ev. 803(6)." Do not lift it out of the facts the court was deciding.
State v. Cain
State v. Cain, 2011 ND 213 (2011)
…emonstrates there were blatant and obvious foundational and hearsay problems precluding admission of the evidence. The record is utterly devoid of any foundational evidence demonstrating the scientific reliability or accuracy of polygraph testing in general. There is absolutely no evidence about the training, experience, or competency of the officer who actually conducted the t…
On hearsay, State v. Cain speaks to the North Dakota dispute in this passage: "The record is utterly devoid of any foundational evidence demonstrating the scientific reliability or accuracy of polygraph testing in general." The surrounding opinion shows how the court applied that language to the record.
Disciplinary Board v. Askew
Disciplinary Board v. Askew, 2010 ND 7 (2010)
…ovide proper foundation for the evidence, the messages were hearsay, and a picture of one message was improperly admitted for impeachment. We affirm the judgment. Because the judgment states it was entered upon a guilty plea, however, we remand to the district court to correct that clerical error. I [¶2] The State charged Thompson with simple assault upon a family or household…
Disciplinary Board v. Askew is worth reading on North Dakota hearsay because the court put the point in its own words: "We affirm the judgment. Because the judgment states it was entered upon a guilty plea, however, we remand to the district court to correct that clerical error." Use that passage as the starting point, then read the facts that precede it.
STATE of North Dakota, Plaintiff and Appellee v. Omar Mohamed KALMIO, Defendant and Appellant — Kapsner, J., dissenting
…lyzed by the district court prior to trial under either the hearsay or prior bad acts exceptions, and Kalmio’s appeal focuses only on the district court’s hearsay analysis. [¶ 57] The North Dakota Rules of Evidence prohibit the admission of hearsay— out of court statements offered to prove the truth of the matter asserted — unless the statements meet one of the enumerated excep…
STATE of North Dakota, Plaintiff and Appellee v. Omar Mohamed KALMIO, Defendant and Appellant — Kapsner, J., dissenting is worth reading on North Dakota hearsay because the court put the point in its own words: "Kalmio’s appeal focuses only on the district court’s hearsay analysis." Use that passage as the starting point, then read the facts that precede it.
Matter of Emelia Hirsch Trust
Matter of Emelia Hirsch Trust, 2013 ND 63 (2013)
…f the witnesses’ statements to Officer Van Inwagen based on hearsay. The hearing officer overruled the objection, concluding the present sense impression and the excited utterance exceptions applied. [¶5] The hearing officer found the accident occurred just prior to dispatch’s initial report and that Dawson had been driving when he returned to the accident site at 3:15 p.m. The…
Practitioners open Matter of Emelia Hirsch Trust when North Dakota hearsay turns on the distinction in this sentence: "Officer Van Inwagen based on hearsay. The hearing officer overruled the objection, concluding the present sense impression and the excited utterance exceptions applied." Do not lift it out of the facts the court was deciding.
Party admissions
Statements of an opposing party are among the most important routes around the hearsay bar. North Dakota treats them under N.D. R. Evid. 801(d)(2). Nothing about the statement need be against interest, contemporaneous, or based on personal knowledge — the theory is adversarial, not reliability-based. A party cannot complain that his own words are unreliable when offered against him.
Scope questions dominate practice: the party's own statement; adopted statements (including silence in circumstances where a reasonable person would deny); statements by authorized speakers; agent or employee statements on matters within the scope of the relationship; and, in criminal conspiracy cases, coconspirator statements during and in furtherance of the conspiracy. A defendant generally cannot introduce his own exculpatory out-of-court statement as a "party admission" against himself — the rule runs one way.
North Dakota party-admission opinions
Jester D. BECK and Sharon K. Beck, Plaintiffs, Appellants, v. Willie LIND, Defendant, Appellee
…us claims relating to alleged erroneous rulings *245 on the admission of evidence, we deem it appropriate to call attention to what this Court said in Schuh v. Allery, 210 N.W.2d 96, 99 (N.D.1973), and which was repeated in Signal Drilling Co. v. Liberty Petroleum Company, 226 N.W.2d 148 (N.D.1975) and Matson v. Matson, 226 N.W.2d 659 (N.D. 1975): "We believe that a trial judge…
On party admissions, Jester D. BECK and Sharon K. Beck, Plaintiffs, Appellants, v. Willie LIND, Defendant, Appellee speaks to the North Dakota dispute in this passage: "Court said in Schuh v. Allery, 210 N.W.2d 96, 99 (N.D.1973), and which was repeated in Signal Drilling Co. v. Liberty Petroleum Company, 226 N.W.2d 148 (N.D.1975) and Matson v. Matson, 226 N.W.2d 659 (N.D." The surrounding opinion shows how the court applied that language to the record.
STATE of North Dakota, Plaintiff and Appellee, v. Mark C. OSIER, Defendant and Appellant — Sandstrom, J., dissenting
…kota Supreme Court, in a case similar to this, affirmed the admission of prior acts as evidence of intent and common plan or scheme, based on an abuse of discretion standard. South Dakota applies a two-part test to its codification of F.R.Ev. 404(b), S.D.C.L. § 19-12-5, which considers: “1. Whether the intended purpose for offering the other acts evidence is relevant to some ma…
On party admissions, STATE of North Dakota, Plaintiff and Appellee, v. Mark C. OSIER, Defendant and Appellant — Sandstrom, J., dissenting speaks to the North Dakota dispute in this passage: "Supreme Court, in a case similar to this, affirmed the admission of prior acts as evidence of intent and common plan or scheme, based on an abuse of discretion standard. South Dakota applies a two-part test to its codification of F.R.Ev. 404(b), S.D.C.L." The surrounding opinion shows how the court applied that language to the record.
STATE of North Dakota, Plaintiff and Appellee v. Wilson Grant PAUL, Sr., Defendant and Appellant
…as an expert. Ill [¶ 9] Paul challenges on two grounds the admission of L.L.’s videotaped interview and the testimony of S.L. and V.L. regarding what L.L. had told them. Paul argues L.L.’s out-of-court hearsay statements lacked sufficient guarantees of trustworthiness, and because the substance of those statements implicated him in crimes for which he was not charged, admissio…
STATE of North Dakota, Plaintiff and Appellee v. Wilson Grant PAUL, Sr., Defendant and Appellant is worth reading on North Dakota party admissions because the court put the point in its own words: "Ill [¶ 9] Paul challenges on two grounds the admission of L.L.’s videotaped interview and the testimony of S.L. and V.L. regarding what L.L. had told them. Paul argues L.L." Use that passage as the starting point, then read the facts that precede it.
STATE of North Dakota, Plaintiff and Appellee, v. Lucas Lee STRUTZ, Defendant and Appellant
…e place.” Strutz filed no pre-trial motions to exclude this admission and made no objection to the prosecutor’s statement or to Wawer’s testimony. [¶ 12] The State called Dickey County Sheriff Jim Bohannon as its second witness. During redirect examination, the prosecutor elicited that, when Strutz’s vehicle was impounded, Bohannon took photographs of the car “[t]o tie up with…
STATE of North Dakota, Plaintiff and Appellee, v. Lucas Lee STRUTZ, Defendant and Appellant is worth reading on North Dakota party admissions because the court put the point in its own words: "Strutz filed no pre-trial motions to exclude this admission and made no objection to the prosecutor’s statement or to Wawer’s testimony. [¶ 12] The State called Dickey County Sheriff Jim Bohannon as its second witness." Use that passage as the starting point, then read the facts that precede it.
Harold SPITZER, Plaintiff and Appellant v. Neil R. BARTELSON and Delila Bartelson, Defendants and Appellees
…judice. II. [¶ 11] At trial, Harold Spitzer objected to the admission of Neil Bartelson and John Bartelson Jr.’s testimony about the intent of the parties to the contract for deed and quitclaim deed. On appeal, Harold Spitzer argues the district court abused its discretion by admitting their testimony because it violated the parol evidence rule and constituted hearsay. [¶ 12] W…
On party admissions, Harold SPITZER, Plaintiff and Appellant v. Neil R. BARTELSON and Delila Bartelson, Defendants and Appellees speaks to the North Dakota dispute in this passage: "II. [¶ 11] At trial, Harold Spitzer objected to the admission of Neil Bartelson and John Bartelson Jr.’s testimony about the intent of the parties to the contract for deed and quitclaim deed." The surrounding opinion shows how the court applied that language to the record.
FRED REITMAN, Respondent, v. F. C. MILLER, Appellant and Joe Kreller, Respondent — Christianson, J., dissenting
…ons and admitted the evidence. Error is predicated upon the admission of such evidence and upon the court’s instructions relating to such custom. The defendant did not deny the existence of such general custom or assert that he was not aware of it but he testified that since 1948 he had leased some lands to his son and his grandson and that in such transactions he furnished the…
On party admissions, FRED REITMAN, Respondent, v. F. C. MILLER, Appellant and Joe Kreller, Respondent — Christianson, J., dissenting speaks to the North Dakota dispute in this passage: "Error is predicated upon the admission of such evidence and upon the court’s instructions relating to such custom." The surrounding opinion shows how the court applied that language to the record.
Business records
The business-records exception under N.D. R. Evid. 803(6) is the everyday path for medical charts, employment files, bank statements, and maintenance logs. The foundation requires a record made at or near the time by — or from information transmitted by — someone with knowledge; kept in the course of a regularly conducted activity; and made as a regular practice. A custodian or other qualified witness (or a qualifying certification where the jurisdiction allows it) lays the foundation. The opponent may still attack lack of trustworthiness when the source or method of preparation indicates unreliability — litigation-driven reports are the classic failure mode.
Do not confuse authenticity with the business-records exception. You still need to show the exhibit is what you claim it is; the hearsay exception then answers why the out-of-court assertions inside it may be considered for their truth.
North Dakota business-records opinions
In the Interest of T.T., a child. Nancy D. Yon, Assistant State's Attorney, and v. J.T. (Father), and M.B. "B." D
…hearsay within hearsay. The court admitted the reports as “business records kept in the usual course.” See N.D.R.Ev. 803(6). [¶ 19] Without citing any authority, the mother argues she was entitled to cross-examine the social workers who prepared the reports and any witnesses the social workers relied on to make those reports. The mother concedes, “those reports make no specifi…
On business records, In the Interest of T.T., a child. Nancy D. Yon, Assistant State's Attorney, and v. J.T. (Father), and M.B. "B." D speaks to the North Dakota dispute in this passage: "The court admitted the reports as “business records kept in the usual course.” See N.D.R.Ev. 803(6)." The surrounding opinion shows how the court applied that language to the record.
FARMERS UNION OIL COMPANY OF DICKINSON, a Corporation, Plaintiff/Appellee, v. Charles A. WOOD, Defendant/Appellant
…N.D.C.C. provides: “31-08-01. Admissibility in evidence of business records — Term ‘business’ defined — Exception—A record of an act, condition, or event shall be competent evidence insofar as relevant, if: 1. The custodian or other qualified witness testifies to its identity and the mode of its preparation. 2. It was made in the regular course of business at or near the time…
On business records, FARMERS UNION OIL COMPANY OF DICKINSON, a Corporation, Plaintiff/Appellee, v. Charles A. WOOD, Defendant/Appellant speaks to the North Dakota dispute in this passage: "N.D.C.C. provides: “31-08-01. Admissibility in evidence of business records — Term ‘business’ defined — Exception—A record of an act, condition, or event shall be competent evidence insofar as relevant, if: 1." The surrounding opinion shows how the court applied that language to the record.
In the Interest of B.B., a child. Carmell F. Mattison, Grand Forks County Assistant State's Attorney, and v. B.B
…hearsay, but the juvenile court concluded the report was a business record and admitted it into evidence under N.D.R.Ev. 803(6). Koop also testified that since 1996, Social Services had received 29 separate abuse or neglect reports regarding this family, which resulted in 18 investigations and assessments, and five determinations by Social Services that the children were depri…
North Dakota opinions such as In the Interest of B.B., a child. Carmell F. Mattison, Grand Forks County Assistant State's Attorney, and v. B.B are cited where business records is disputed. The court stated: "hearsay, but the juvenile court concluded the report was a business record and admitted it into evidence under N.D.R.Ev. 803(6). Koop also testified that since 1996, Social Services had received 29 separate abuse or neglect reports regarding this family, which resulted in 18 inve" That is the language to brief; the rest of the decision supplies the procedural posture.
STATE of North Dakota, Plaintiff and Appellee v. Rondale GRANT, Defendant and Appellant
…Grant’s counsel argued the report did not qualify under the business records exception, N.D.R.Ev. 808(6), or the exception for statements for the purpose of medical diagnosis, N.D.R.Ev. 803(4), because “[the report] goes far beyond what’s necessary for a diagnosis.” The State argued the report was admissible under both exceptions. The district court found the report met the req…
On business records, STATE of North Dakota, Plaintiff and Appellee v. Rondale GRANT, Defendant and Appellant speaks to the North Dakota dispute in this passage: "Grant’s counsel argued the report did not qualify under the business records exception, N.D.R.Ev. 808(6), or the exception for statements for the purpose of medical diagnosis, N.D.R.Ev. 803(4), because “[the report] goes far beyond what’s necessary for a diagnosis." The surrounding opinion shows how the court applied that language to the record.
STATE of North Dakota, Plaintiff and Appellee, v. Pat GARVEY, Defendant and Appellant
…ved, pursuant to either Rule 804(b)(1) and (5), NDREv, or a business records exception to the hearsay rule. Rule 804(b)(1) provides testimony of a witness at a prior hearing or deposition may be received if the party against whom it is offered has an opportunity and similar motive to develop the testimony. This exception to the hearsay rule permitted the admission at trial of J…
STATE of North Dakota, Plaintiff and Appellee, v. Pat GARVEY, Defendant and Appellant is worth reading on North Dakota business records because the court put the point in its own words: "Rule 804(b)(1) and (5), NDREv, or a business records exception to the hearsay rule." Use that passage as the starting point, then read the facts that precede it.
INTERSTATE COLLECTION AGENCY, INC., Plaintiff and Appellant, v. Sebastian KUNTZ, A/K/A Sy Kuntz, Defendant and
…introduction of the exhibits. We submit that these are not business records within the meaning of the statute. All we have here is a number of sales books which are in no way entered into any business record of Mr. Sperle. He has not identified and stated the mode of the preparation of the exhibits. He has not testified that this ■ Exhibit was prepared at or near the time of t…
INTERSTATE COLLECTION AGENCY, INC., Plaintiff and Appellant, v. Sebastian KUNTZ, A/K/A Sy Kuntz, Defendant and is worth reading on North Dakota business records because the court put the point in its own words: "We submit that these are not business records within the meaning of the statute. All we have here is a number of sales books which are in no way entered into any business record of Mr. Sperle. He has not identified and stated the mode of the preparation of the exhibits." Use that passage as the starting point, then read the facts that precede it.
ENDICOTT JOHNSON CORPORATION, Plaintiff and Appellant, v. C. M. GOLDE, D/B/A Family Clothing & Shoes, Defendant and
…mpted to introduce its exhibits under § 31-08-01, N.D.C.C. (Business Records as Evidence Act), by calling as a *755 witness Mr. William Wilmot, the company’s only North Dakota representative. Section 31-08-01, N.D.C.C. provides: “Admissibility in evidence of business records — Term ‘business’ defined. — A record of an act, condition, or event shall be competent evidence, in so…
North Dakota opinions such as ENDICOTT JOHNSON CORPORATION, Plaintiff and Appellant, v. C. M. GOLDE, D/B/A Family Clothing & Shoes, Defendant and are cited where business records is disputed. The court stated: "N.D.C.C. (Business Records as Evidence Act), by calling as a *755 witness Mr. William Wilmot, the company’s only North Dakota representative. Section 31-08-01, N.D.C.C. provides: “Admissibility in evidence of business records — Term ‘business’ defined." That is the language to brief; the rest of the decision supplies the procedural posture.
Important hearsay exceptions that do not require unavailability
Three present-sense and mental-state exceptions carry most of the remaining traffic in North Dakota trial practice.
Excited utterance — N.D. R. Evid. 803(2). A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused. Timing is elastic; composure defeats the exception even minutes after the event, while visible distress can preserve it for hours.
Present sense impression — N.D. R. Evid. 803(1). A statement describing or explaining an event or condition made while or immediately after the declarant perceived it. Contemporaneity is strict — seconds and minutes, not hours — and excitement is not required.
Then-existing mental, emotional, or physical condition — N.D. R. Evid. 803(3). Statements of then-existing state of mind (including intent and plan) come in; statements of memory or belief offered to prove the fact remembered generally do not. Intent-to-meet-another-person cases remain the hardest applications.
Declarant unavailable
When the declarant is unavailable under N.D. R. Evid. 804(a), North Dakota opens a second suite of exceptions. Unavailability typically includes privilege, refusal to testify despite court order, lack of memory, death or then-existing infirmity, and absence despite reasonable efforts to procure attendance. The proponent bears the burden of proving unavailability with specific facts — a bare assertion that the witness "could not be found" is not enough.
Former testimony under N.D. R. Evid. 804(b)(1) is the workhorse once unavailability is shown: testimony given as a witness at a trial, hearing, or lawful deposition, offered against a party who had an opportunity and similar motive to develop it by direct, cross, or redirect. Criminal confrontation analysis runs in parallel and is not satisfied merely because a hearsay exception applies.
Dying declarations
Dying declarations under N.D. R. Evid. 804(b)(2) remain a narrow but decisive exception in homicide and, in many jurisdictions, civil cases involving the cause or circumstances of what the declarant believed to be impending death. The foundational showing is the declarant's belief that death was imminent — not that death in fact followed within any particular time — plus a statement concerning the cause or circumstances of what the declarant believed to be the impending death. Courts police coaching and narrative expansions aggressively.
North Dakota dying-declaration opinions
STATE of North Dakota, Plaintiff and Appellee, v. Thomas A. BARTKOWSKI, Defendant and Appellant
…the United States Constitution does not prevent the use of dying declarations. See Kirby v. United States, 174 U.S. 47 at 61, 19 S.Ct. 574, 43 L.Ed. 890 (1899). Nor does it. require the disclosure of the identity of an informer. McCray v. Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967). The latitude and extent of cross-examination has always been held to be within…
Practitioners open STATE of North Dakota, Plaintiff and Appellee, v. Thomas A. BARTKOWSKI, Defendant and Appellant when North Dakota dying declaration turns on the distinction in this sentence: "United States Constitution does not prevent the use of dying declarations. See Kirby v. United States, 174 U.S. 47 at 61, 19 S.Ct. 574, 43 L.Ed. 890 (1899). Nor does it. require the disclosure of the identity of an informer. McCray v. Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed." Do not lift it out of the facts the court was deciding.
The STATE OF NORTH DAKOTA, Respondent, v. WILLIAM GUMMER, Appellant
The STATE OF NORTH DAKOTA, Respondent, v. WILLIAM GUMMER, Appellant, 51 N.D. 445 (1924)
…confession on the ground that it was involuntary or where a dying declaration is offered, or where a question of privilege is raised. And, if su'eh evidence is offered and the trial court is thoroughly satisfied, is morally certain, that the proffered writings are genuine, and that it is proper so to do, they may be received for purposes of comparison. 'That is, in the applicat…
The STATE OF NORTH DAKOTA, Respondent, v. WILLIAM GUMMER, Appellant is worth reading on North Dakota dying declaration because the court put the point in its own words: "And, if su'eh evidence is offered and the trial court is thoroughly satisfied, is morally certain, that the proffered writings are genuine, and that it is proper so to do, they may be received for purposes of comparison." Use that passage as the starting point, then read the facts that precede it.
STATE OF NORTH DAKOTA v. HARRY W. CARTER
STATE OF NORTH DAKOTA v. HARRY W. CARTER, 50 N.D. 270 (1923)
…o arrest defendant, but was driving him off the street. The dying declaration of deceased was to the effect that he was trying to arrest defendant and that defendant resisted arrest. Section 9462, Comp. Law's 1913, declares homicide to be murder in the following cases: .“1. When perpetrated without authority of law, and with a premeditated design to effect the death of the pers…
On dying declaration, STATE OF NORTH DAKOTA v. HARRY W. CARTER speaks to the North Dakota dispute in this passage: "The dying declaration of deceased was to the effect that he was trying to arrest defendant and that defendant resisted arrest. Section 9462, Comp. Law's 1913, declares homicide to be murder in the following cases: .“1." The surrounding opinion shows how the court applied that language to the record.
STATE OF NORTH DAKOTA, Respondent, v. GEORGE HANSON, Appellant
STATE OF NORTH DAKOTA, Respondent, v. GEORGE HANSON, Appellant, 53 N.D. 879 (1926)
…by the trial court in admitting in evidence certain alleged dying declarations of the person whom the defendant is charged with having killed. A careful consideration of the record leads us to the conclusion that the trial court did not err in admitting this evidence. The undisputed evidence shows that Forbes, the deceased, died as a result of a certain gun shot wound inflicted…
North Dakota opinions such as STATE OF NORTH DAKOTA, Respondent, v. GEORGE HANSON, Appellant are cited where dying declaration is disputed. The court stated: "A careful consideration of the record leads us to the conclusion that the trial court did not err in admitting this evidence." That is the language to brief; the rest of the decision supplies the procedural posture.
STATE OF NORTH DAKOTA, Respondent, v. RAT POTTER, Appellant — Christianson, J., dissenting
…in the statement of the deceased to Mrs. Potter and in his dying declaration to his father. As regards what is said in the majority opinion concerning the application for a change of venue, we are agreed with the principles stated *214 in paragraph two of the syllabus, namely, that an erroneous ruling on an application for a change of venue constitutes a ground for a new trial…
Practitioners open STATE OF NORTH DAKOTA, Respondent, v. RAT POTTER, Appellant — Christianson, J., dissenting when North Dakota dying declaration turns on the distinction in this sentence: "Mrs. Potter and in his dying declaration to his father." Do not lift it out of the facts the court was deciding.
STATE OF NORTH DAKOTA v. ADOLPH LEHMAN
STATE OF NORTH DAKOTA v. ADOLPH LEHMAN, 44 N.D. 572 (1919)
…m three sources; the direct testimony of the defendant, the dying declarations of Mathias Wetzstein, and the circumstances as testified to by Eosie Weiler and Eosie Kilzer. The dying declarations of Mathias Wetzstein substantially corroborate the other evidence of the meeting, by Wetzstein, of Lehman near the barn, the pursuit of Wetzstein by Lehman to the house, and through it…
On dying declaration, STATE OF NORTH DAKOTA v. ADOLPH LEHMAN speaks to the North Dakota dispute in this passage: "Mathias Wetzstein, and the circumstances as testified to by Eosie Weiler and Eosie Kilzer." The surrounding opinion shows how the court applied that language to the record.
MARY ROSS, as Surviving Wife of J. F. Ross v. HARRY J. COOPER
MARY ROSS, as Surviving Wife of J. F. Ross v. HARRY J. COOPER, 38 N.D. 173 (1916)
…ion that the question of the admissibility of the so-called dying declarations was not expressly passed upon, although it was intimated that such declarations are inadmissible in civil actions. The principal reason for the admissibility of dying declarations is what has been termed the “principle of necessity;” that is, if such declarations were not admitted in evidence, it wou…
Practitioners open MARY ROSS, as Surviving Wife of J. F. Ross v. HARRY J. COOPER when North Dakota dying declaration turns on the distinction in this sentence: "ion that the question of the admissibility of the so-called dying declarations was not expressly passed upon, although it was intimated that such declarations are inadmissible in civil actions. The principal reason for the admissibility of dying declarations is what has been term" Do not lift it out of the facts the court was deciding.
Medical diagnosis or treatment statements
Statements made for medical diagnosis or treatment under N.D. R. Evid. 803(4) cover medical history, past or present symptoms, and their general cause when reasonably pertinent to diagnosis or treatment. The exception is not limited to treating physicians; statements to nurses, EMTs, and consulting clinicians can qualify when the diagnostic purpose is genuine. Fault and identity remain the usual battleground: "I was hit by a car" is often pertinent; "the light was green" usually is not; abuser identity in child-abuse and domestic-violence cases is heavily litigated.
North Dakota medical-statement opinions
STATE of North Dakota, Plaintiff and Appellee v. James Alfred BLUE, Defendant and Appellant
…ospital while the nurse examined the victim for purposes of medical diagnosis were not testimonial); Foley v. State, 914 So.2d 677, 685 (Miss.2005) (statements made as a part of neutral medical evaluations do not meet Crawford’s testimonial criterion); State v. Vaught, 268 Neb. 316, 682 N.W.2d 284, 291 (2004) (four-year-old victim’s statements solicited by a doctor for medical…
STATE of North Dakota, Plaintiff and Appellee v. James Alfred BLUE, Defendant and Appellant is worth reading on North Dakota medical diagnosis hearsay because the court put the point in its own words: "Foley v. State, 914 So.2d 677, 685 (Miss.2005) (statements made as a part of neutral medical evaluations do not meet Crawford’s testimonial criterion); State v. Vaught, 268 Neb. 316, 682 N.W." Use that passage as the starting point, then read the facts that precede it.
The STATE of North Dakota, Plaintiff and Appellee, v. Michael John JANDA, Defendant and Appellant
…one hour after the incident, or statements for purposes of medical diagnosis or treatment (Rule 803(4), N.D.R.Ev.) because they had “absolutely nothing to do with the diagnosis and treatment of [the complainant].” The State argues that the statements were admissible either under Rule 803(4), N.D.R.Ev., or, relying on the nurse’s observation that the complainant was “very pale…
The STATE of North Dakota, Plaintiff and Appellee, v. Michael John JANDA, Defendant and Appellant is worth reading on North Dakota medical diagnosis hearsay because the court put the point in its own words: "Rule 803(4), N.D.R.Ev.) because they had “absolutely nothing to do with the diagnosis and treatment of [the complainant].” The State argues that the statements were admissible either under Rule 803(4), N.D.R.Ev." Use that passage as the starting point, then read the facts that precede it.
Interest of Rwb
Interest of Rwb, 241 N.W.2d 546 (1976)
…that the child not be returned to his parents, because the medical diagnosis is consistent with Dr. Blank's conclusion that this is a case of the "battered child syndrome". Such a medical conclusion does not invade the province of the court to make its determination on the ultimate questionwhether or not to terminate parental rights; therefore it was not erroneous for the tri…
Practitioners open Interest of Rwb when North Dakota medical diagnosis hearsay turns on the distinction in this sentence: "Dr. Blank's conclusion that this is a case of the 'battered child syndrome'." Do not lift it out of the facts the court was deciding.
In the Matter of the ESTATE OF John A. ZENT, Deceased. Ann M. JOHNSON, Claimant and Appellant, v. ESTATE OF John A
…the record which discloses the reason for disregarding the medical diagnosis of Alzheimer’s disease or the description of its symptoms and necessary treatment. Nor can we divine any such justification. Based upon the unrefut-ed medical evidence, we conclude that the trial court’s finding that the services Ann rendered to John, at least during his deterioration from Alzheimer’s…
On medical diagnosis hearsay, In the Matter of the ESTATE OF John A. ZENT, Deceased. Ann M. JOHNSON, Claimant and Appellant, v. ESTATE OF John A speaks to the North Dakota dispute in this passage: "Alzheimer’s disease or the description of its symptoms and necessary treatment. Nor can we divine any such justification." The surrounding opinion shows how the court applied that language to the record.
In the Matter of the GUARDIANSHIP OF Diane Marie BRAATEN, an Incapacitated Person
…iciencies since birth,” that “age, eccentricity, poverty or medical diagnosis are not alone the basis of these findings,” and that “there is no available alternative resource plan that is suitable to safeguard the health, safety or habitation of Diane Marie Braaten.” See NDCC 30.1-28-04(2).2 The order concluded that “the guardianship and conservatorship is necessary as the best…
North Dakota opinions such as In the Matter of the GUARDIANSHIP OF Diane Marie BRAATEN, an Incapacitated Person are cited where medical diagnosis hearsay is disputed. The court stated: "Diane Marie Braaten.” See NDCC 30.1-28-04(2)." That is the language to brief; the rest of the decision supplies the procedural posture.
STATE of North Dakota, Plaintiff and Appellee v. Rondale GRANT, Defendant and Appellant
…808(6), or the exception for statements for the purpose of medical diagnosis, N.D.R.Ev. 803(4), because “[the report] goes far beyond what’s necessary for a diagnosis.” The State argued the report was admissible under both exceptions. The district court found the report met the requirements of the business records exception and admitted it over Grant’s objection. [¶ 8] At the…
STATE of North Dakota, Plaintiff and Appellee v. Rondale GRANT, Defendant and Appellant is worth reading on North Dakota medical diagnosis hearsay because the court put the point in its own words: "N.D.R.Ev. 803(4), because “[the report] goes far beyond what’s necessary for a diagnosis.” The State argued the report was admissible under both exceptions." Use that passage as the starting point, then read the facts that precede it.
STATE of North Dakota, Plaintiff and Appellee v. Andrew Brice MUHLE, Defendant and Appellant
…ion by the hearsay rule for statements made for purposes of medical diagnosis or treatment, should not apply to portions of Dr. Nor-berg’s medical report that Muhle describes as “interrogation.” [¶ 10] Muhle asserts that Dr. Norberg is the medical director of the Red River Valley Children’s Advocacy Center and that the entire examination was done for purposes of investigation a…
On medical diagnosis hearsay, STATE of North Dakota, Plaintiff and Appellee v. Andrew Brice MUHLE, Defendant and Appellant speaks to the North Dakota dispute in this passage: "Dr. Nor-berg’s medical report that Muhle describes as “interrogation.” [¶ 10] Muhle asserts that Dr." The surrounding opinion shows how the court applied that language to the record.
Use of depositions at trial
N.D. R. Civ. P. 30 and 32 govern civil depositions and trial use. N.D. R. Crim. P. 16 controls criminal discovery; prior testimony may be admitted under N.D. R. Evid. 804(b)(1).
Deposition use is always a two-layer problem: procedural permission to read or play the deposition, plus a hearsay path (often former testimony, party admission, or impeachment). Counsel who satisfy the civil or criminal procedure rule but skip the evidence-rule foundation invite a sustained objection; counsel who have a hearsay exception but failed to preserve the deposition under the procedural rule face the same result. Video designations, counter-designations, and completeness objections should be teed up before the jury is seated.
North Dakota deposition / former-testimony opinions
In the Matter of the ESTATE OF Leo E. STANTON, Deceased. Agnes GASSMANN, Petitioner and Appellant, v. J. Francis
…n for summary judgment the court may examine the pleadings, depositions, admissions, affidavits, interrogatories, and inferences to be drawn therefrom to determine whether summary judgment is appropriate. Everett Drill. Vent. v. Knutson Flying Serv., 338 N.W.2d 662 (N.D.1983); First Nat. Bank of Hettinger v. Clark, 332 N.W.2d 264 (N.D.1983). In doing so, the court must view the…
In the Matter of the ESTATE OF Leo E. STANTON, Deceased. Agnes GASSMANN, Petitioner and Appellant, v. J. Francis is worth reading on North Dakota deposition / former testimony because the court put the point in its own words: "Everett Drill. Vent. v. Knutson Flying Serv., 338 N.W.2d 662 (N.D.1983); First Nat. Bank of Hettinger v. Clark, 332 N.W.2d 264 (N.D.1983)." Use that passage as the starting point, then read the facts that precede it.
Jester D. BECK and Sharon K. Beck, Plaintiffs, Appellants, v. Willie LIND, Defendant, Appellee
…d have been considered by the court in conjunction with the deposition, which, we will point out later, should have been permitted to be used as substantive evidence, as well as the testimony of the defendant Lind. At the trial Lind, as a witness, was asked if he made any payments under the provision in question. Lind claimed he could not remember. Beck then attempted to use a…
Practitioners open Jester D. BECK and Sharon K. Beck, Plaintiffs, Appellants, v. Willie LIND, Defendant, Appellee when North Dakota deposition / former testimony turns on the distinction in this sentence: "Lind. At the trial Lind, as a witness, was asked if he made any payments under the provision in question. Lind claimed he could not remember." Do not lift it out of the facts the court was deciding.
Richard C. ANDERSON, Plaintiff and Appellee, v. A.P.I. COMPANY OF MINNESOTA, a Minnesota Corporatio — Walle, J
…N.W.2d 401 (N.D.1994) (affirming trial courts exclusion of deposition testimony under N.D.R.Evid. 804(b)(1) because deponents were not unavailable within meaning of N.D.R.Evid. 804(a)(5) merely because they were not residents of North Dakota.) I agree that issue is not raised by Owens-Coming in this appeal.
North Dakota opinions such as Richard C. ANDERSON, Plaintiff and Appellee, v. A.P.I. COMPANY OF MINNESOTA, a Minnesota Corporatio — Walle, J are cited where deposition / former testimony is disputed. The court stated: "N.W.2d 401 (N.D.1994) (affirming trial courts exclusion of deposition testimony under N.D.R.Evid. 804(b)(1) because deponents were not unavailable within meaning of N.D.R.Evid. 804(a)(5) merely because they were not residents of North Dakota." That is the language to brief; the rest of the decision supplies the procedural posture.
Curtis CROWSTON, Plaintiff and Appellant, v. the GOODYEAR TIRE & RUBBER COMPANY and Kelsey-Hayes Company, Defendants
…n the trial of Crow-ston’s post-sale duty to warn claim. D. Deposition Testimony Crowston asserts that the trial court erred in excluding deposition testimony by representatives of Kelsey-Hayes in another lawsuit against Kelsey-Hayes. Crowston argues the deposition testimony from another action involving a mismatch explosion is within the “former testimony” exception of the hea…
Practitioners open Curtis CROWSTON, Plaintiff and Appellant, v. the GOODYEAR TIRE & RUBBER COMPANY and Kelsey-Hayes Company, Defendants when North Dakota deposition / former testimony turns on the distinction in this sentence: "Crow-ston’s post-sale duty to warn claim. D. Deposition Testimony Crowston asserts that the trial court erred in excluding deposition testimony by representatives of Kelsey-Hayes in another lawsuit against Kelsey-Hayes." Do not lift it out of the facts the court was deciding.
STATE of North Dakota, Plaintiff and Appellee, v. Lynn C. GOULET, Defendant and Appellant
…Goulet said he needed “to secure this testimony by way of a deposition” because Baca was “undependable” and “[sjimply giving him a plane ticket may not be enough to guarantee that he show up properly for trial.” The trial court refused to grant the application and seal the request, explaining: The defense asks that the application be sealed under N.D.R.Cr.P. Rule 16(b)(2). That…
North Dakota opinions such as STATE of North Dakota, Plaintiff and Appellee, v. Lynn C. GOULET, Defendant and Appellant are cited where deposition / former testimony is disputed. The court stated: "Goulet said he needed “to secure this testimony by way of a deposition” because Baca was “undependable” and “[sjimply giving him a plane ticket may not be enough to guarantee that he show up properly for trial." That is the language to brief; the rest of the decision supplies the procedural posture.
STATE of North Dakota, Plaintiff and Appellee v. Laurie Marie KEENER, Defendant and Appellant; State of North
…he district court did not commit obvious error in admitting deposition testimony of Marvin and Florence Whisker, the Keeners waived their right to a preliminary hearing on an amended charge for a class B felony of conspiracy to exploit a vulnerable adult, and the district court did not abuse its discretion in ordering Laurie Keener to make restitution to the victims. I [¶ 2] In…
STATE of North Dakota, Plaintiff and Appellee v. Laurie Marie KEENER, Defendant and Appellant; State of North is worth reading on North Dakota deposition / former testimony because the court put the point in its own words: "Florence Whisker, the Keeners waived their right to a preliminary hearing on an amended charge for a class B felony of conspiracy to exploit a vulnerable adult, and the district court did not abuse its discretion in ordering Laurie Keener to make restitution to the victims." Use that passage as the starting point, then read the facts that precede it.
Gloria AHO, Beverly J. Hamel, Darlene Aliff and Bradley K. Aho, Plaintiffs and Appellees, v. Al — Sandstrom, J
…order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.” The rule is not ambiguous. Its invocation plainly requires affidavits from the party opposing the motion stating the reasons the party cannot present affidavit facts essential to justify opposition to the motion for summary judgmen…
On deposition / former testimony, Gloria AHO, Beverly J. Hamel, Darlene Aliff and Bradley K. Aho, Plaintiffs and Appellees, v. Al — Sandstrom, J speaks to the North Dakota dispute in this passage: "order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.” The rule is not ambiguous. Its invocation plainly requires affidavits from the party opposing the motion stating the reasons the par" The surrounding opinion shows how the court applied that language to the record.
Authenticity: why it matters and how to prove it
Authenticity is not a hearsay doctrine and it is not optional. Under N.D. R. Evid. 901, 902, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is. Self-authenticating categories — certified public records, newspapers, acknowledged documents, trade inscriptions, and (where adopted) certified domestic records of a regularly conducted activity — shorten the path, but most trial exhibits still need a sponsoring witness, distinctive characteristics, chain of custody, or process-or-system evidence.
North Dakota energy and agricultural litigation requires authenticated drilling logs, commodity records, and GPS data under N.D. R. Evid. 901–902.
Why authenticity gets its own section in every North Dakota trial notebook:
- It is a condition precedent. An unauthenticated exhibit never reaches the relevance, hearsay, or privilege analysis in a useful way — the jury never properly considers it.
- Digital evidence multiplies the failure modes. Screenshots, social-media posts, text threads, and cloud downloads require hash values, account attribution, metadata, or a percipient witness who saw the content created or received.
- Chain of custody is authenticity by another name. Drugs, firearms, biological samples, and seized devices are excluded when the links from seizure to lab to courtroom are broken, even if a hearsay exception would otherwise apply to a lab report.
- Business-records shortcuts do not replace authentication. A custodian can explain record-keeping practices and still fail if nobody can say the particular PDF or printout is the record of this patient, this account, or this machine.
- Self-authentication is narrow. Counsel who wave a notarization or a letterhead and skip the rest of Rule 901-style analysis often lose when the document's contents are disputed.
Practical authentication checklist for North Dakota trials: identify the exhibit; choose a 901 method or a 902 category; line up the sponsoring witness or certificate; preserve chain-of-custody testimony for physical and digital items; and separate the authenticity objection from any hearsay objection so the court rules on each.
North Dakota authenticity opinions
STATE of North Dakota, Plaintiff and Appellee v. Jennifer Jean Sandvig THOMPSON, Defendant and Appellant
…[1121] Rule 901(a), NJD.R.Ev., deals with the procedure for authenticating evidence and provides that the “requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” Rule 901(a), N.D.R.Ev., is identical to F.R.Ev. 901(a), and we may…
STATE of North Dakota, Plaintiff and Appellee v. Jennifer Jean Sandvig THOMPSON, Defendant and Appellant is worth reading on North Dakota authentication because the court put the point in its own words: "Rule 901(a), N.D.R.Ev., is identical to F.R.Ev." Use that passage as the starting point, then read the facts that precede it.
STATE of North Dakota, Plaintiff and Appellee, v. Deborah MOORE, Defendant and Appellant
…issible under Rule 902(1), NDREv. “RULE 901. Requirement of Authentication or Identification. “(a) General provision. The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. *282 “(b) Illustrations. By way of illustration only,…
North Dakota opinions such as STATE of North Dakota, Plaintiff and Appellee, v. Deborah MOORE, Defendant and Appellant are cited where authentication is disputed. The court stated: "Rule 902(1), NDREv. “RULE 901. Requirement of Authentication or Identification. “(a) General provision." That is the language to brief; the rest of the decision supplies the procedural posture.
STATE of North Dakota, Plaintiff and Appellee, v. Alvin T. REIL, Defendant and Appellant — Meschke, J., dissenting
…that in the absence of any evidence of tampering or lack of authentication, the proponent of evidence relating to the results of a blood-alcohol test and the supporting exhibits is not required to call each witness who may have handled the exhibit.”) The exhibit excluded by the majority opinion contained the signed statement of the nurse who obtained the blood sample *106on the…
On authentication, STATE of North Dakota, Plaintiff and Appellee, v. Alvin T. REIL, Defendant and Appellant — Meschke, J., dissenting speaks to the North Dakota dispute in this passage: "that in the absence of any evidence of tampering or lack of authentication, the proponent of evidence relating to the results of a blood-alcohol test and the supporting exhibits is not required to call each witness who may have handled the exhibit.”) The exhibit excluded by the m" The surrounding opinion shows how the court applied that language to the record.
Disciplinary Board v. Askew
Disciplinary Board v. Askew, 2010 ND 7 (2010)
…[¶21] Rule 901(a), N.D.R.Ev., deals with the procedure for authenticating evidence and provides that the “requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” Rule 901(a), N.D.R.Ev., is identical to F.R.Ev. 901(a), and we may…
Disciplinary Board v. Askew is worth reading on North Dakota authentication because the court put the point in its own words: "Rule 901(a), N.D.R.Ev., is identical to F.R.Ev." Use that passage as the starting point, then read the facts that precede it.
Jody James JANGULA, Petitioner and Appellant v. NORTH DAKOTA DEPARTMENT OF TRANSPORTATION, Respondent and Appellee
…contending the analytical report had not been certified or authenticated and the Department had not complied with the relevant statutes and rules of evidence. The hearing officer overruled Jangula’s objections and admitted the exhibit into evidence. [¶ 4] The hearing officer suspended Jangula’s driving privileges for two years. Jangula appealed to - the district court, which a…
On authentication, Jody James JANGULA, Petitioner and Appellant v. NORTH DAKOTA DEPARTMENT OF TRANSPORTATION, Respondent and Appellee speaks to the North Dakota dispute in this passage: "Department had not complied with the relevant statutes and rules of evidence. The hearing officer overruled Jangula’s objections and admitted the exhibit into evidence. [¶ 4] The hearing officer suspended Jangula’s driving privileges for two years." The surrounding opinion shows how the court applied that language to the record.
Christianson v. NDDOT
Christianson v. NDDOT, 941 N.W.2d 529 (2020)
…[¶8] “Before documentary evidence is admissible, it must be authenticated.” Ouradnik v. Henke, 2020 ND 39, ¶ 20, 938 N.W.2d 392 (quoting Frost v. N.D. Dep’t of Transp., 487 N.W.2d 6, 8 (N.D. 1992)). Authentication requires evidence sufficient to support a finding that the item in question is what the proponent claims it to be. N.D.R.Ev. 901(a). Certain items are self- authentic…
Christianson v. NDDOT is worth reading on North Dakota authentication because the court put the point in its own words: "Before documentary evidence is admissible, it must be authenticated.” Ouradnik v. Henke, 2020 ND 39, ¶ 20, 938 N.W.2d 392 (quoting Frost v. N.D. Dep’t of Transp., 487 N.W.2d 6, 8 (N.D. 1992))." Use that passage as the starting point, then read the facts that precede it.
State v. Hirschkorn
State v. Hirschkorn, 2020 ND 268 (2020)
…have been excluded. He contends the evidence lacked proper authentication and foundation and was unfairly prejudicial. [¶9] To authenticate evidence under N.D.R.Ev. 901(a), the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is. Rule 901(b)(1) and (4), N.D.R.Ev., provides examples of authentication including testimo…
North Dakota opinions such as State v. Hirschkorn are cited where authentication is disputed. The court stated: "He contends the evidence lacked proper authentication and foundation and was unfairly prejudicial. [¶9] To authenticate evidence under N.D.R.Ev. 901(a), the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is." That is the language to brief; the rest of the decision supplies the procedural posture.
State v. Henderson
State v. Henderson, 2024 ND 42 (2024)
…veral trial exhibits because the exhibits were not properly authenticated under N.D.R.Ev. 901 and are inadmissible hearsay lacking sufficient foundation as records of regularly conducted activity under N.D.R.Ev. 803(6). We reverse the judgment. I [¶2] From August to September 2022, Henderson worked for Home Helpers, an agency offering assistance to elderly people with chores, t…
North Dakota opinions such as State v. Henderson are cited where authentication is disputed. The court stated: "N.D.R.Ev. 901 and are inadmissible hearsay lacking sufficient foundation as records of regularly conducted activity under N.D.R.Ev. 803(6). We reverse the judgment." That is the language to brief; the rest of the decision supplies the procedural posture.
Practice checklist
- State the relevance theory in one sentence before naming an exception.
- Run the 403 / unfair-prejudice balance explicitly for other-acts and graphic exhibits.
- For character or other-acts evidence, identify the non-propensity purpose and request a limiting instruction on the record.
- Decide whether an out-of-court statement is hearsay for the purpose offered before hunting exceptions.
- Lay business-records foundations with time, knowledge, regular practice, and custodial qualifications — or a qualifying certification.
- Prove unavailability with specific facts before offering former testimony or dying declarations.
- Treat deposition use as procedure-plus-hearsay; designate and counter-designate early.
- Authenticate every exhibit under N.D. R. Evid. 901, 902 (or the self-authentication path) before arguing hearsay.
- Preserve chain of custody for physical and digital evidence with named custodians.
- Search LawDiver for recent North Dakota appellate evidence opinions before mediation or motions in limine.
Frequently asked questions
What is the primary evidence source in North Dakota?
North Dakota applies the North Dakota Rules of Evidence. North Dakota's rules mirror the FRE; N.D. R. Evid. 401–902 govern district court trials with federal precedent cited persuasively.
How do North Dakota courts decide relevance and unfair prejudice?
Under N.D. R. Evid. 401, 403, evidence must make a fact of consequence more or less probable, and the court may exclude relevant evidence when unfair prejudice, confusion, or waste of time substantially outweighs its probative value.
Are party admissions hearsay in North Dakota?
Party-opponent statements under N.D. R. Evid. 801(d)(2) are generally excluded from the hearsay ban (or treated as an exception, depending on local drafting). They may be offered against the party who made or adopted them without showing unavailability.
What foundation is required for business records?
Under N.D. R. Evid. 803(6), show a record made at or near the time from someone with knowledge, kept in the course of a regularly conducted activity, as a regular practice, through a custodian, qualified witness, or allowed certification — subject to trustworthiness attack.
When can I use a deposition at trial in North Dakota?
N.D. R. Civ. P. 30 and 32 govern civil depositions and trial use. N.D. R. Crim. P. 16 controls criminal discovery; prior testimony may be admitted under N.D. R. Evid. 804(b)(1).
Why is authenticity separate from hearsay?
Authenticity asks whether the item is what you claim it is; hearsay asks whether out-of-court assertions inside it may be used for their truth. You can lose on either ground independently. North Dakota authenticity practice starts with N.D. R. Evid. 901, 902.
Where do dying declarations and medical statements fit?
Dying declarations under N.D. R. Evid. 804(b)(2) require belief in impending death and concern the cause or circumstances of that believed death. Medical statements under N.D. R. Evid. 803(4) require a genuine diagnostic or treatment purpose and reasonable pertinence to care.