31-04 General Provisions
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<![CDATA[CHAPTER 31-04GENERAL PROVISIONS31-04-01. Methods of taking testimony of witnesses. Testimony of witnesses may betaken by:1.Affidavit.2.Deposition.3.Oral examination.31-04-02.Affidavit defined.An affidavit is a written declaration under oath madewithout notice to the adverse party.31-04-03. Deposition defined. A deposition is a written declaration under oath madeupon notice to the adverse party for the purpose of enabling the adverse party to attend and<br>cross-examine, or upon written interrogatories.31-04-04. Oral examination defined. An oral examination is an examination in thepresence of the jury or tribunal which is to decide the fact or act upon it, the testimony being<br>heard by the jury or tribunal from the lips of the witness.31-04-04.1.Videotaped statement of child sexual offense victim - Criteria foradmission as evidence.1.In any prosecution for a violation of section 12.1-20-03, 12.1-20-03.1, 12.1-20-04,<br>12.1-20-05, 12.1-20-06, 12.1-20-07, or 12.1-20-11 in which the victim is less than<br>fifteen years of age, the oral statement of the child victim may be recorded before<br>trial and, subject to subsection 2, is admissible as evidence in any court proceeding<br>regarding the offense if the following conditions are satisfied:a.The court determines there is reasonable cause to believe that the child victim<br>would experience serious emotional trauma as a result of in-court participation<br>in the proceeding;b.The accused must be given reasonable written notice of the time and place for<br>taking the videotaped statement;c.The accused must be afforded the opportunity to hear and view the testimony<br>from outside the presence of the child by means of a two-way mirror or other<br>similar method that will ensure that the child cannot hear or see the accused;d.The accused must have the opportunity to communicate orally with counsel by<br>electronic means while the videotaped statement is being made; ande.All questioning must be done by the prosecutor or counsel for the defendant<br>unless the defendant is an attorney pro se. An attorney pro se must conduct all<br>questioning from outside the presence of the child. Upon request of any of the<br>parties or upon the determination of the court that it would be appropriate, the<br>court may appoint a person who is qualified as an expert and who has dealt<br>with the child in a therapeutic setting to aid the court throughout proceedings<br>conducted under this section and the court may appoint a guardian ad litem to<br>protect the interests of the child.2.A child victim's videotaped statement is admissible pursuant to subsection 1 if the<br>court finds that the child is unavailable as a witness to testify at trial and, upon<br>viewing the videotape recording before it is shown to the jury, determines that it isPage No. 1sufficiently reliable and trustworthy and that the interests of justice will best be<br>served by admission of the statement into evidence.For purposes of thissubsection,"unavailable"includesadetermination,basedonmedicalorpsychological evidence or expert testimony, that the child would suffer serious<br>emotional or psychological strain if required to testify at trial. The court, in making its<br>findings and determinations under this subsection, shall consider at least the<br>following:a.The nature of the offense;b.The significance of the child's testimony to the case;c.The child's age;d.The child's psychological maturity and understanding; ande.The nature, degree, and duration of potential injury to the child from testifying.31-04-05. Use of affidavits. An affidavit may be used:1.To verify a pleading.2.To prove the service of a summons, notice, or other process in an action.3.To obtain a provisional remedy.4.To obtain an examination of a witness.5.To obtain a stay of proceedings.6.Upon a motion.7.In any other case permitted by law.31-04-06. How proof of publication made. Proof of the publication of a document ornotice required by law or by court order to be published in a newspaper may be made by the<br>affidavit of the publisher of the newspaper, or the publisher's designee, annexed to a copy of the<br>document or notice, specifying the paper in which and the times when the publication was made.31-04-07. Where and how affidavits may be made. An affidavit may be made in or outof 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<br>the party to have the affidavit of any person who shall have refused to make the same, such<br>court, by order, may appoint a referee to take the affidavit or deposition of such person. Such<br>person may be subpoenaed and compelled to attend and make an affidavit before such referee<br>the same as before a referee to whom an action is referred to try an issue, and the fees of such<br>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 affidavitin the action, but an affidavit made without a title or with a defective title shall be as valid and<br>effectual for every purpose as if it were duly entitled, if it intelligibly refers to the action or<br>proceeding in which it is made.31-04-10.Form and contents of certificate for certifying copies to be used asevidence. Whenever a copy of a writing is certified for the purpose of evidence, the certificate<br>must state in substance that the copy is a correct copy of the original, or of a specified part<br>thereof, as the case may be. The certificate must be under the official seal of the certifyingPage No. 2officer, if there is any, or if such officer is a clerk of a court having a seal, under the seal of such<br>court.31-04-11. Mediation - Inadmissibility of evidence - Exception. When persons agreeto conduct and participate in a mediation for the purpose of compromising, settling, or resolving a<br>dispute, evidence of anything said or of any admission made in the course of the mediation is<br>inadmissible as evidence and disclosure may not be compelled in any subsequent civil<br>proceeding except as provided in this section. This section does not limit the compulsion nor the<br>admissibility of evidence if:1.The evidence relates to a crime, civil fraud, or a violation under the Uniform Juvenile<br>Court Act;2.The evidence relates to a breach of duty by the mediator;3.The validity of the mediated agreement is in issue; or4.All persons who conducted or otherwise participated in the mediation consent to<br>disclosure.31-04-12. Expressions of empathy.1.A statement, affirmation, gesture, or conduct of a health care provider, or health care<br>provider's employee or agent, which expresses apology, sympathy, commiseration,<br>condolence, compassion, or benevolence to a patient or to a patient's relative or<br>representative is not admissible as evidence of liability or as an admission against<br>interest in a civil action, arbitration proceeding, or administrative hearing regarding<br>the health care provider.2.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<br>physicians operating a clinic or outpatient care facility, or a professional<br>corporation or other professional entity comprised of such health care<br>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<br>other health care organization.b."Relative" means an individual who has a relationship to the patient by<br>marriage, blood, or adoption.c."Representative" means a legal guardian, attorney, person designated to make<br>decisions on behalf of a patient under a health care directive, or any person<br>recognized in law or custom as a patient's agent.Page No. 3Document Outlinechapter 31-04 general provisions]]>