(a) In open court. At trial, the witnesses' testimony must be taken in open court unless a statute, the Rules of Evidence, these rules, or other court rules provide otherwise. For good cause, or on agreement of the parties, and with appropriate safeguards, the court may permit testimony in open court by contemporaneous transmission from a different location. A party must give notice if a witness is unable to testify orally or if testimony by contemporaneous transmission may be necessary.
Rule 43.Evidence
Group VI: Trials · Last amended March 1, 2021 · Last verified July 15, 2026
In one sentenceRule 43 requires trial testimony to be taken in open court unless a statute or rule says otherwise, allows contemporaneous video transmission for good cause or by agreement, lets the court hear a motion's outside-the-record facts through declarations, oral testimony, or depositions, and requires an interpreter for anyone with limited English proficiency or who is deaf.
Full Text of Rule 43
(b) Evidence on a motion. When a motion relies on facts outside the record, the court may hear the matter on declarations or may hear it wholly or partly on oral testimony or on depositions.
(c) Interpreter. If a person with limited English proficiency or a deaf person is involved in a proceeding as a party, witness, person with legal decision-making authority, or person with a significant legal interest in the matter, the court must provide an interpreter.
Explanatory Note
Rule 43 was amended, effective 1976; January 1, 1980; March 1, 1999; March 1, 2011; March 1, 2014; March 1, 2021. The explanatory note was amended August 1, 2015.
Subdivision (a) was amended, effective March 1, 1999, to follow the 1996 federal amendment. See 1996 Advisory Committee Note, Fed.R.Civ.P. 43. The requirement for testimony to be taken orally is deleted.
Former subdivision (b) on scope of examination and cross-examination was deleted, effective March 1, 2011. These topics are covered in the Rules of Evidence. The federal rule contains a subdivision entitled "Affirmation Instead of an Oath." Affirmations and oaths are governed by N.D.R.Ct. 6.10 (Courtroom Oaths).
Subdivision (c) on interpreters was added, effective March 1, 2014. It is intended to reflect the American Bar Association Standards for Language Access in Courts. N.D. Sup. Ct. Admin. R. 50 (Court Interpreter Qualifications and Procedures) provides guidance on interpreter qualifications and requirements and detailed information on payment for interpreter services. Under Admin. Rule 50, a party in a civil case may be required to reimburse the court for interpreter costs based upon ability to pay.
Rule 43 was amended, effective March 1, 2011, in response to the December 1, 2007, revision of the Federal Rules of Civil Procedure. The language and organization of the rule were changed to make the rule more easily understood and to make style and terminology consistent throughout the rules.
Rule 43 was amended, effective March 1, 2021, to delete the term "affidavit" and replace it with "declaration." This amendment was made in response to N.D.C.C. ch. 31-15, which allows anyone to make an unsworn declaration that has the same effect as a sworn declaration, such as an affidavit. N.D.C.C. § 31-15-05 provides the required form for an unsworn declaration.
Plain-English Summary
Rule 43(a) sets the default for trial: witnesses testify in open court unless a statute, the Rules of Evidence, these rules, or other court rules say otherwise. The rule leaves room for technology, though — for good cause, or if the parties agree, and with appropriate safeguards, the court can permit testimony in open court by contemporaneous transmission from a different location. A party planning to use that option, or who knows a witness will not be able to testify orally, has to give notice ahead of time rather than spring it on the court and the opposing side.
Rule 43(b) covers a narrower situation: a motion that relies on facts outside the existing record. There the court is not limited to affidavits or declarations on paper — it can hear the matter wholly or partly on oral testimony or depositions, whatever combination best lets it resolve the factual dispute underlying the motion.
Rule 43(c) requires the court to provide an interpreter whenever a person with limited English proficiency or a deaf person is involved in a proceeding as a party, witness, person with legal decision-making authority, or person with a significant legal interest in the matter. That provision, added in 2014, tracks American Bar Association standards for language access in the courts, and North Dakota's own administrative rules separately govern interpreter qualifications and how interpreter costs get paid. A related but smaller change came in 2021, when the rule replaced the word "affidavit" with "declaration" throughout, reflecting a state law that lets anyone use an unsworn declaration with the same legal effect as a sworn affidavit.
Frequently Asked Questions
Does trial testimony have to be given in person in the courtroom?
Rule 43(a) makes open-court testimony the default, but for good cause, or if the parties agree, and with appropriate safeguards, the court can allow testimony by contemporaneous transmission from a different location.
Do I need to tell the court in advance if I want a witness to testify by video?
Yes. Rule 43(a) requires a party to give notice if a witness cannot testify orally or if testimony by contemporaneous transmission may be necessary.
What kind of proof can support a motion when the relevant facts aren't already in the court record?
Rule 43(b) lets the court hear a motion that relies on facts outside the record through declarations, or wholly or partly through oral testimony or depositions.
Who is entitled to a court-provided interpreter in a North Dakota civil case?
Rule 43(c) requires an interpreter whenever a person with limited English proficiency or a deaf person is involved in the proceeding as a party, witness, person with legal decision-making authority, or person with a significant legal interest in the matter.
Why does the rule now say "declaration" instead of "affidavit"?
The 2021 amendment replaced "affidavit" with "declaration" throughout Rule 43, matching a state law that allows an unsworn declaration to have the same effect as a sworn affidavit.
Source & verification. Rule text and the Explanatory Note are
reproduced verbatim from the North Dakota Rules of Civil Procedure, adopted by the
Supreme Court of North Dakota. Last verified July 15, 2026.
· Official source
Also known as: nd testimony by video north dakotadeclaration vs affidavit nd civil rulecourt interpreter requirement north dakotaevidence on a motion nd civil procedurecontemporaneous transmission testimony nd