Title 31, Judicial Proof

A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of diagnosis or treatment of the client's physical, mental, or emotional condition, including alcohol or drug addiction, among the clien…

The privilege may be claimed by the client, the client's guardian or conservator, or the personal representative of a deceased client. The person who was the counselor at the time of the communication is presumed to have authority to claim the privilege but only on behalf of the …

1. There is no privilege under sections 31-01-06.3 through 31-01-06.6 for communications relevant to an issue in proceedings to hospitalize the client for mental illness, including alcohol or drug addiction, if the counselor in the course of diagnosis or treatment has determined …

No person may be compelled to be a witness against himself or herself in a criminal action. Notwithstanding any provision of law to the contrary, in any criminal proceedings before a court or grand jury or state's attorney's inquiry, if a person refuses to answer a question or pr…

No person is obliged to attend as a witness in a criminal action or proceeding in this state before a court or magistrate outside of the county in which the person resides or is served with the subpoena, unless the committing magistrate before whom the defendant is brought, or th…

A person shall not be liable to be sued in a county in which that person does not reside by being served with a summons in such county while going, returning, or attending as a witness in obedience to a subpoena.

1. A witness in a civil or criminal case is entitled to receive: a. A sum of twenty-five dollars for each day necessarily in attendance before the district court or before any other board or tribunal, except municipal court. b. A sum for mileage and travel expense reimbursement e…

Police officers of municipalities in this state shall be entitled to and be paid the witness fees and expenses allowed by law for other witnesses, when such officers are off duty and are subpoenaed to testify in actions in which a plea of guilty was not entered. Police officers o…

A witness in municipal court is entitled to receive compensation for time necessarily spent in municipal court. The governing body of the city shall establish the amount of compensation, but in no instance may compensation be more than twenty-five dollars, or less than five dolla…

A witness who is subpoenaed in two or more cases by the same party shall be entitled to one compensation only from such party for the same day's attendance or travel.

When a person, as a witness in a criminal or municipal court action, appears before a magistrate, grand jury, or court, upon a subpoena or in pursuance of an undertaking and it appears that the person: 1. Has come from a place outside the county; or 2. Is poor and unable to pay t…

If it appears to the court before which a criminal action or municipal ordinance violation is about to be tried that the defendant is unable to pay the witnesses to appear on the defendant's behalf, such court shall make an order that such witnesses as may be deemed reasonable, n…

The process by which the attendance of a witness is required is a subpoena.

A witness disobeying a subpoena issued on the part of the defendant in a criminal action, unless the witness shows good cause for the witness's nonattendance, is liable to the defendant in the sum of fifty dollars, which may be recovered in a civil action.

Any court, by order, may require an officer having the custody of any person confined in any prison in this state to produce such person before it for oral examination in the county where the person is imprisoned. In all other cases, except as otherwise provided in section 31-03-…

While a prisoner's deposition is being taken, the prisoner shall remain in the custody of the officer having the prisoner in charge and such officer shall provide reasonable facilities for the taking of the deposition.

When the testimony of a witness for the state is required in a criminal action, before a court of record of this state, and such witness is confined in the penitentiary or in a county jail, an order for the witness's temporary removal from the penitentiary or such jail, and for t…

If, after a preliminary examination, a defendant is held to answer, the magistrate before whom the examination was held may require any material witness examined on the part of the state: 1. To enter into a written undertaking, without surety, to the effect that such witness will…

If, after any material witness on the part of the prosecution has been discharged on the witness's undertaking without surety, it is satisfactorily shown on the sworn application of the state's attorney or of some other person on behalf of the state made to the magistrate before …

In any criminal case in which it appears to the satisfaction of the trial judge that a witness who has been required to enter into an undertaking, with sureties, for the witness's appearance at the trial court, was committed to and confined in prison because the witness actually …

If a judge of a court of record in any state which by its laws has made provision for commanding persons within that state to attend and testify in a criminal prosecution in this state, certifies under the seal of such court that: 1. There is a criminal prosecution pending in suc…

If at the hearing on a certificate to secure the attendance of a person within this state as a material witness in a criminal prosecution in another state, the judge determines that: 1. The witness is material and necessary; 2. It will not cause undue hardship to the witness to b…

If the witness who is summoned as provided in section 31-03-25, after being paid or tendered by some properly authorized person the sum of ten cents a mile for each mile, by the ordinarily traveled route to and from the court where the prosecution is pending, and five dollars for…

If a person in any state, which by its laws has made provision for commanding persons within its borders to attend and testify in criminal prosecutions in this state, is a material witness in a prosecution pending in a court of record in this state, a judge of such court may issu…

If the witness from another state is summoned to attend and testify in a criminal prosecution in this state, the witness is entitled to the fees and expenses provided to witnesses under section 31-01-16. A witness who has appeared in accordance with the provisions of the summons …

If a person comes into this state in obedience to a summons directing the person to attend and testify in a criminal prosecution in this state, the person shall not be subject, while in this state pursuant to such summons, to arrest or the service of process, civil or criminal, i…

If a person passes through this state while going to another state in obedience to a summons to attend and testify in a criminal prosecution in that state or while returning therefrom, the person, while passing through this state, shall not be subject to arrest or the service of …

Testimony of witnesses may be taken by: 1. Affidavit. 2. Deposition. 3. Oral examination.

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

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.

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.

1. 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 subs…

1. 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. The testimony is t…

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 …

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 whic…

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

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…

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 mad…

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 of…

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…

1. 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 admis…

A record of an act, condition, or event is 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 of the act, conditio…

If any business, institution, member of a profession or calling, or any department or agency of government in the regular course of business or activity has kept or recorded any memorandum, writing, entry, print, representation, or combination thereof, of any act, transaction, oc…

If appropriate safeguards have been taken to limit access to medical records in an electronic data storage system, a medical record in an electronic data storage system may be authenticated by an electronic signature or a computer-generated signature code.

The recording of hospital medical records by an electronic image system or reproduction process is considered a photographic process. The making or recording of hospital medical records by electronic data processing systems is considered an original written record, and printout o…

In proving any written instrument or contract to which there is a subscribing witness, or to which there are two or more subscribing witnesses, it shall not be necessary to call any such witness or witnesses, but the instrument or contract may be proved, except for purposes of fi…