hearsay rule in North Dakota

2007Under N.D.R.Ev. 805, “[h]earsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule provided in these Rules.” See also State v. Lefthand, 523 N.W.2d 63, 68-69 (N.D.1994) (offered private investigator testimony was classic example of hearsay-within-hearsay and was properly excluded); Hirschkorn v. Severson, 319 N.W.2d 475 , 478 n. 5 (N.D.1982) (probable “hearsay-within-hearsay” question noted but declining to address it because parties did not raise the question on appeal). [¶ 14] Johnson’s testimo

2001See N.D.R.Ev. 805; State v. Lefthand, 523 N.W.2d 63, 68 (N.D.1994). [¶ 10] On appeal, Miller concedes this evidence is hearsay but argues that, under Chambers v. Mississippi, 410 U.S. 284 , 93 S.Ct. 1038 , 35 L.Ed.2d 297 (1973), exclusion of the evidence violates his constitutional right to present a defense. 2 Miller *591 argues that, under Chambers , a defendant’s due process right to present evidence in his behalf may “trump” state evidentiary rules, including the hearsay rule. [¶ 11] Chambers presented a clearly distinguishable factual scenario.

2024A [¶32] Ziemann asserts the court erred when it decided evidence he submitted in opposition to Grosz’s motion for summary judgment was inadmissible hearsay. [¶33] “Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” State v. Vickerman, 2022 ND 184, ¶ 9 , 981 N.W.2d 881 ; see also N.D.R.Ev. 801(c). “‘Hearsay statements are generally not admissible and will not be considered in deciding a motion for summary judgment unless the statements fall within an exception to the hearsay rule.

2024A [¶32] Ziemann asserts the court erred when it decided evidence he submitted in opposition to Grosz’s motion for summary judgment was inadmissible hearsay. [¶33] “Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” State v. Vickerman, 2022 ND 184, ¶ 9 , 981 N.W.2d 881 ; see also N.D.R.Ev. 801(c). “‘Hearsay statements are generally not admissible and will not be considered in deciding a motion for summary judgment unless the statements fall within an exception to the hearsay rule.

2009State v. Hirschkom, 2002 ND 36, ¶ 22 , 640 N.W.2d 439 , overruled, on other grounds, State v. Blue, 2006 ND 134, ¶ 21 , 717 N.W.2d 558 . [¶ 12] Rule 803(24), N.D.R.Ev., provides a hearsay exception for a child’s out-of-court statements about sexual abuse: An out-of-court statement by a child under the age of 12 years about sexual abuse of that child or witnessed by that child is admissible as evidence (when not otherwise admissible under another hearsay exception) if: (a) The trial court finds, after hearing upon notice in advance of the trial of the sexual abuse issue, that the time, content,

2009State v. Hirschkom, 2002 ND 36, ¶ 22 , 640 N.W.2d 439 , overruled, on other grounds, State v. Blue, 2006 ND 134, ¶ 21 , 717 N.W.2d 558 . [¶ 12] Rule 803(24), N.D.R.Ev., provides a hearsay exception for a child’s out-of-court statements about sexual abuse: An out-of-court statement by a child under the age of 12 years about sexual abuse of that child or witnessed by that child is admissible as evidence (when not otherwise admissible under another hearsay exception) if: (a) The trial court finds, after hearing upon notice in advance of the trial of the sexual abuse issue, that the time, content,

2024A [¶32] Ziemann asserts the court erred when it decided evidence he submitted in opposition to Grosz’s motion for summary judgment was inadmissible hearsay. [¶33] “Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” State v. Vickerman, 2022 ND 184, ¶ 9 , 981 N.W.2d 881 ; see also N.D.R.Ev. 801(c). “‘Hearsay statements are generally not admissible and will not be considered in deciding a motion for summary judgment unless the statements fall within an exception to the hearsay rule.

2024A [¶32] Ziemann asserts the court erred when it decided evidence he submitted in opposition to Grosz’s motion for summary judgment was inadmissible hearsay. [¶33] “Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” State v. Vickerman, 2022 ND 184, ¶ 9 , 981 N.W.2d 881 ; see also N.D.R.Ev. 801(c). “‘Hearsay statements are generally not admissible and will not be considered in deciding a motion for summary judgment unless the statements fall within an exception to the hearsay rule.

2013Id. [¶ 31] An attorney’s affidavit made on information and belief, and not personal knowledge, does not comply with N.D.R.Civ.P. 56(e).

2011See N.D.R.Ev. 802; In re Estate of Stanton, 472 N.W.2d 741, 745 (N.D.1991) (“Statements constituting hearsay, of course, are generally not admissible unless they fall within an exception to the hearsay rules.”)- Inadmissible hearsay statements do not provide a prima facie case for modification of primary residential responsibility.

2011See In re Utrera, 281 Mich.App. 1 , 761 N.W.2d 253, 265-66 (2008) (child’s statements of fear resulting from domestic violence incidents admissible to prove child’s state of mind and relevant because the disruption of the child-parent relationship was at issue); see also In re S.M., 304 Mont. 102 , 19 P.3d 213, 216-17 (2001) (child’s statement that she was afraid was admissible to show her state of mind upon seeing her alleged abuser). [¶ 16] Schumacker’s affidavit includes statements by the parties’ children about a domestic violence incident.

2011See In re Utrera , 761 N.W.2d 253, 265-66 (Mich. App. 2008) (child’s statements of fear resulting from domestic violence incidents admissible to prove child’s state of mind and relevant because the disruption of the child-parent relationship was at issue); see also In re S.M. , 19 P.3d 213, 216-17 (Mont. 2001) (child’s statement that she was afraid was admissible to show her state of mind upon seeing her alleged abuser). [¶16] Schumacker’s affidavit includes statements by the parties’ children about a domestic violence incident.

2011City of Bismarck v. Bosch, 2005 ND 12, ¶ 6 , 691 N.W.2d 260 (footnote omitted); see also State v. Gietzen, 2010 ND 82, ¶ 7 , 786 N.W.2d 1 . [¶ 5] Sections 39-20-07(7), (8), and (10), N.D.C.C., are considered statutory exceptions to the hearsay rule.

2011City of Bismarck v. Bosch , 2005 ND 12, ¶ 6 , 691 N.W.2d 260 (footnote omitted); see also State v. Gietzen , 2010 ND 82 , ¶ 7, 786 N.W.2d 1 . [¶5] Sections 39-20-07(7), (8), and (10), N.D.C.C., are considered statutory exceptions to the hearsay rule.

2011City of Bismarck v. Bosch, 2005 ND 12, ¶ 6 , 691 N.W.2d 260 (footnote omitted); see also State v. Gietzen, 2010 ND 82, ¶ 7 , 786 N.W.2d 1 . [¶ 5] Sections 39-20-07(7), (8), and (10), N.D.C.C., are considered statutory exceptions to the hearsay rule.

2011City of Bismarck v. Bosch , 2005 ND 12, ¶ 6 , 691 N.W.2d 260 (footnote omitted); see also State v. Gietzen , 2010 ND 82 , ¶ 7, 786 N.W.2d 1 . [¶5] Sections 39-20-07(7), (8), and (10), N.D.C.C., are considered statutory exceptions to the hearsay rule.

2011See Green v. Green, 2009 ND 162, ¶ 13 , 772 N.W.2d 612 ; Tank v. Tank, 2004 ND 15, ¶ 12 , 678 N.W.2d 622 . [¶ 27] The majority concludes these statements are an exception to the hearsay rule as “the declarant’s then existing state of mind, emotion, sensation, or physical condition.” Majority Opinion at ¶ 15.

2011See Green v. Green, 2009 ND 162, ¶ 13 , 772 N.W.2d 612 ; Tank v. Tank, 2004 ND 15, ¶ 12 , 678 N.W.2d 622 . [¶ 27] The majority concludes these statements are an exception to the hearsay rule as “the declarant’s then existing state of mind, emotion, sensation, or physical condition.” Majority Opinion at ¶ 15.

2011State v. Zimmerman, 516 N.W.2d 638, 641 (N.D.1994).

2011State v. Zimmerman , 516 N.W.2d 638, 641 (N.D. 1994).

2011See In re Utrera, 281 Mich.App. 1 , 761 N.W.2d 253, 265-66 (2008) (child’s statements of fear resulting from domestic violence incidents admissible to prove child’s state of mind and relevant because the disruption of the child-parent relationship was at issue); see also In re S.M., 304 Mont. 102 , 19 P.3d 213, 216-17 (2001) (child’s statement that she was afraid was admissible to show her state of mind upon seeing her alleged abuser). [¶ 16] Schumacker’s affidavit includes statements by the parties’ children about a domestic violence incident.

2011See In re Utrera, 281 Mich.App. 1 , 761 N.W.2d 253, 265-66 (2008) (child’s statements of fear resulting from domestic violence incidents admissible to prove child’s state of mind and relevant because the disruption of the child-parent relationship was at issue); see also In re S.M., 304 Mont. 102 , 19 P.3d 213, 216-17 (2001) (child’s statement that she was afraid was admissible to show her state of mind upon seeing her alleged abuser). [¶ 16] Schumacker’s affidavit includes statements by the parties’ children about a domestic violence incident.

2010See Farmers Union Oil Co. of Dickinson v. Wood, 301 N.W.2d 129, 135 (N.D.1980).

2010See Farmers Union Oil Co. of Dickinson v. Wood , 301 N.W.2d 129, 135 (N.D. 1980).

2007A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” “The proponent of the evidence has the burden of establishing the foundational facts to make a statement admissible as an ‘excited utterance’ exception to the hearsay rule.” State v. Whalen, 520 N.W.2d 830, 832 (N.D.1994); see also Staiger v. Gaarder, 258 N.W.2d 641, 647 (N.D.1977).

2007A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” “The proponent of the evidence has the burden of establishing the foundational facts to make a statement admissible as an ‘excited utterance’ exception to the hearsay rule.” State v. Whalen, 520 N.W.2d 830, 832 (N.D.1994); see also Staiger v. Gaarder, 258 N.W.2d 641, 647 (N.D.1977).

1982In California v. Green, 399 U.S. 149 , 90 S.Ct. 1930 , 26 L.Ed.2d 489 (1970), the United States Supreme Court held that a state statute which provides that “evidence of a statement made by a witness is not inadmissible by the hearsay rule if the statement is inconsistent with his testimony at the hearing and is offered in compliance with” a statute which requires that the witness be given an opportunity to explain or deny the prior statement at some point in the trial, does not violate the defendant’s right of confrontation guaranteed by the sixth amendment and made applicable to the states by

1982In California v. Green, 399 U.S. 149 , 90 S.Ct. 1930 , 26 L.Ed.2d 489 (1970), the United States Supreme Court held that a state statute which provides that “evidence of a statement made by a witness is not inadmissible by the hearsay rule if the statement is inconsistent with his testimony at the hearing and is offered in compliance with” a statute which requires that the witness be given an opportunity to explain or deny the prior statement at some point in the trial, does not violate the defendant’s right of confrontation guaranteed by the sixth amendment and made applicable to the states by

1994Id. at 804 .

1992Unless sources of the information in the report or other circumstances indicated a lack of trustworthiness [see State v. Manke, 328 N.W.2d 799 (N.D.1982)], the report fell within the hearsay exception to Rule 803(8)(iii).

2001Co., 323 F.2d 981, 984 (10th Cir.1963)): “The hearsay rule does not exclude relevant testimony as to what the contracting parties said with respect to the making or the terms of an oral agreement.

1983In Creaghe v. Iowa Home Mutual Casualty Co., 323 F.2d 981 (10th Cir.1963), the United States Court of Appeals for the Tenth Circuit discusses the nonhearsay nature of statements constituting verbal conduct in a contract action: “The hearsay rule does not exclude relevant testimony as to what the contracting parties said with respect to the making or the terms of an oral agreement.