*1 justice placing the natural agree burden I cannot reason that a “[t]he ought it to rest. It where does not flow recipient partial secures recovery law, any fixed rule of but rather from against third-party tortfeasor is imma- terial_” principles justice, equity, and benevo- Reason is the any eq- core of result, purely equitable lence. It is a de- concept, ought uitable to direct the doctrines, pending, equitable like other application equitable of an doctrine like upon the facts and circumstances of each “subrogation.” particular case to call it forth. It is a In this majority of this court has adopted by equity device or invented to chosen to maintain the subrogation interest compel discharge the ultimate of a debt or of the Bureau over the injured interests of obligation him, good inwho conscience impaired by claimants an immunity not of ought ”); Hickenloop- Martin v. pay to it.’ making. their I hesitate to eq- call that er, 150, 1139, (1936), 90 Utah 59 P.2d suggests uitable regression because it (“In place, purely the first it is a equitable a totalitarian view of the govern- role of doctrine borrowed from the civil law.... reigned: ment that once King “The can do Bailey, Kent v. Says the court in 181 Iowa wrong,” no or at big wrong. least no See 489, 852, agree 164 N.W. 853: ‘The books District, Kitto v. Minot Park 224 N.W.2d subrogation is not founded on contract (N.D.1974). If justification there is or privity suretyship, or strict but is born result, it must the settlement equity, and results from the natural claimants, accepting partial damages justice placing the burden where it injuries their rather than litigating the ought to rest. The remedy depends upon responsibility full of the third-party wrong- principles justice, equity, and benev- doer, however fruitless that may ap- applied olence to be to the facts of the peared. Since the subrogation statute does particular case. equitable origin, It is of declare that the subrogation “bureau’s in- adopted compel discharge ultimate may terest by settlement,” not be reduced I obligation of a debt or good him who in hesitantly concur. ought ”) pay conscience it.' Thus, I join cannot opinion in an equitable

treats the concept “subroga-

tion” as an “entitlement.” Where a claim-

ant’s reduced recovery is attributable to his contributory negligence,

own as in Clary,

supra, Kelsh, supra, and in I have no

difficulty in enforcing the Bureau’s subro- gation agree “interest.” I that the claim- Dakota, STATE of North Plaintiff ant’s conduct should not affect the Bu- Appellee, subrogation But, reau’s interest. where claimant’s recovery reduced is ordained statute, prefer another I would to con- REIL, Alvin T. Defendant strue the together. two statutes N.D.C.C. Appellant. (“... construed, 1-02-07 the two shall be § Crim. No. 1210. possible, so given that effect ...”). provisions, both anticipate Supreme Court of North Dakota. passage of Ch. Laws, 1987 N.D. Sess. making significant June changes in tort law comparative liability fault and damages, may bring about a number

instances where subrogation the Bureau’s

interest weighed must be and construed impact of other enactments. See through

N.D.C.C. 32-03.2-01 § 32-03.2- § 12 (Supp.1987). *2 Firm,

Schoppert Town, Law New for de- appellant; argued and by fendant Thomas Schoppert. K.

ERICKSTAD, Chief Justice. T. appeals judgment Alvin Reil from the entered conviction the Williams Coun- 29, 1986, ty July on finding Court him guilty driving under the influence of 39-08-01, alcohol violation of Section N.D.C.C., following trial and also denying from the order motion for his new judgment trial. We reverse both the order remand for new trial. charged driving Reil was under the Bryon Klipfel influence Officer T. Highway North Dakota Patrol on Novem- 18,1984. ber patrol, Klip- While on Officer pickup traveling fel a observed on a front- age appeared him road to be trav- eling a low speed. at rate of He turned on frontage road and pickup followed the approximately one mile. While follow- ing pickup he saw it wander from the frontage shoulder the center of the road one and at time cross the center of the road. When the pickup turned off the road, he noticed that the vehicle’s brake lights working signal were not lights had not been activated. He turned emergency equipment patrol on the pickup stop. car and the to a came He approached pickup while he was identifying strong the driver he detected a odor of alcohol on the driver’s breath and eyes very saw that were bloodshot. physical After Reil failed two balance tests test, “ALERT” an he was taken to the Breathalyzer lav/ enforcement center for Klipfel, test. Breathalyzer oper- certified ator, administered the breath test and Reil’s percent test results showed .10 blood-alcohol content. test,

Following the breath when Reil re- quested independent an test blood Officer Klipfel hospital took Reil to the for such a subpoenaed test. The State the results of that blood test from the State Toxicolo- gist’s Office and at trial offered a certified Furuseth, (argued), Peter H. Atty. States copy of the results of that blood test. The Williston, plaintiff appellee. trial court admitted the results of the blood provide objection over that the had test Reil’s a reasonable assurance that the custody established sample was withdrawn and tested in a sample and his contention that the view, reliable manner. Under this burden State had the ultimate is whether sufficient from him was the blood drawn same presented evidence was to warrant a Toxicologist. examined the State finding that the blood was in fact ex- *3 1,1986, August On Reil a moved for new tracted from the defendant and was test- arguing, among things, that his trial ed in a trustworthy manner.” [Foot- blood test was received as evidence without notes omitted.] 16, proper September foundation. On Hanson, v. We believe that State 345 1986, the trial court denied Reil’s motion (N.D.1984), N.W.2d 845 and the cases cited for a new trial. therein,1 to,2 subsequent are consistent appeal; Reil raises three how- issues with the second line In Han- authority. of ever, dispositive the is issue whether not son we concluded provided that the State in admitting the trial court erred the result sufficient foundation to admit the results of blood-alcohol test. of Hanson’s blood-alcohol test where the Currently, split authority of exists arresting officer testified that Hanson’s regarding custody the chain of the ad sample blood was withdrawn from him un- missibility of blood-alcohol tests as identi very der clean and sterile conditions and Court in Sulli fied Alaska Supreme the procedures described the in utilized han- Municipality Anchorage, van v. 577 dling mailing the sample blood the 1070, (Alaska 1978): P.2d 1072 Toxicologist. light office of the In considering “Courts such chain of cus- arresting testimony, the officer’s we con- tody split. issues have Some strict- cluded that there were sufficient indicia of ly required that link in every reliability in withdrawal of the blood proven evidence before be the results sample permit in that case receipt would be admissible. These cases ex- the results the blood-alcohol test. 345 press complete the concern there be N.W.2d at 849. specimen evidence that the properly was Hanson is readily distinguishable from clearly extracted and as the identified officer, arresting this case in that the al- person being blood of the Other tested. though present sample when Reil’s blood every courts have held step need not drawn, did proven certainty testify proce- to an was as to absolute as long preserve as the circumstances of the test sample dures used the blood Miller, made, In we analyzed Hanson cited Wanna v. 136 test was was (N.D.1965) N.W.2d 563 v. Erickson North body which taken was of the de Bureau, Compensation Dakota Workmen’s 123 delay destroy ceased. Mere will not the evi- (N.D.1963), recognizing pos- N.W.2d 292 as "the dentiary object proper factor of an if a foun sibility sample may that a blood become con- object dation is laid. But before a material laboratory taminated before it reaches the may be admitted in it must Erickson, analysis.” chemical 292, In N.W.2d 123 shown that there has been no substantial (N.D.1963), we stated the foundational issue, change in its condition since time requirement admissibility for the of blood-alco- require which in this case would that there be hol test results as follows: evidence contents .the object being "When an is used in evidence container into which the blood had been prove to previous fact with it as which is related of a placed was the same substance that had been time, competent it is not evidence body withdrawn from the of the deceased object unless it first that such is is shown and, except perhaps clotting, was that it substantially the same condition as it was at substantially the same condition. Witt Ice & being the time which it related. Gutman 152, 952; Bedway, Gas Co. v. 72 Ariz. 231 P.2d Commission, 383, App. Industrial Ohio Keller, White v. 188 Or. 215 P.2d 986.” Therefore, 50 N.E.2d 187. in this where the alcoholic content decedent's Vetsch, (N.D.1985) 2. See State v. 368 N.W.2d 547 at the time the accident is to be shown VandeHoven, (N.D. and State v. 388 N.W.2d 857 blood, test of a of his there must be 1986). positive evidence to show that the blood had that, tíerwwd v*!' not boor tho whi- handling provisions testify as to its of the revised form. We find

nor did he mailing.3 distinguishable present Vetsch from the testimony case because of the nurse’s Vetsch, N.W.2d lacking in this case. (N.D.1985), acknowledged legisla- we in the amend- implicit tive directive 39-20-07(5) statutory Subsection lists the 39-20-07, N.D.C.C., enact- ment to Section requirements for the of chem- admissibility of ed to facilitate the chemical ical tests as follows: by commenting: tests “The results of analysis the chemical Dakota, legislature in “In North must be received evidence when it is explicitly prescribed that 39-20-07 has § shown that the ob- of the amount of alcohol ‘. fairly tained and the test was adminis- person’s ... in the blood at the time of tered, the test is shown to have alleged the act as shown a chemical performed according been to methods analysis blood ... admissible.’ *4 approved by and with devices the state emphasis subparagraph The in 5 is mani- toxicologist, pos- an individual analy- fest: ‘The results of the chemical sessing qualification a certificate of sis must be received evidence when it ’ properly is shown ... that it was ob- administer the test issued the state 26, fairly tained and administered. Rule toxicologist.” N.D.R.Crim.P., mandates that ‘all evi- 39-20-07(10) augments Subsection sub- dence shall be admitted which is admissi- 39-20-07(5) section with the directive that ’ State, ble under the statutes of this ... signed statement from the nurse or “[a] Thus, it for the court to was make the drawing medical technician the blood sam- preliminary determination of whether it ple testing as set forth in subsection 5 properly fairly was obtained and adminis- is facie evidence that the sam- blood statutory admissibility. tered for It was ple properly was drawn and no further for the relevancy to assess its foundation for the admission of such evi- weight.” However, required.” dence subsec- concluded Vetsch we that blood-alcohol 39-20-07(10) applicable tion is not in this test administered a nurse was admissi- disputing case because Reil is not allegations despite ble that the nurse used drawn. He is where, form, an outdated the nurse testified saying in effect that there is no evidence procedures at trial which she indicating that the blood that was preserve used to drawn draw the blood sam- ple complied had carefully preserved that she with all the was and sent to the testimony arresting going object. 3. The of the officer concern- "MR. SCHOPPERT: I’m ing Klipful, please my question preservation handling Mr. answer of the blood would you? you Did mail the blood? sample in this case is as follows: "THE WITNESS: No I did not. uh, Alright, Klipful "MR. SCHOPPERT: Mr. you “MR. SCHOPPERT: So don’t know for you, you did did not have a blood test taken mailed, a fact this is Mr. Reil’s blood that was you? in this did you? do No, "THE WITNESS: I did not. “THE WITNESS: No I don’t. you “MR. SCHOPPERT: And as far as know "MR. SCHOPPERT: Was this blood to be taken, this is Mr. Reil’s blood test that was is you? sent back to it not? “THE WITNESS: No. "THE WITNESS: That is correct. “MR. SCHOPPERT: You wanted one you "MR. SCHOPPERT: And its true that evening, you? test taken that didn’t drawn, present were not when this blood was “THE WITNESS: Yes. you? were “MR. SCHOPPERT: And that was the "THE WITNESS: Yes I breathalyzer was. test? you preserve “MR. “THE SCHOPPERT: Did WITNESS: That is correct. you “MR. SCHOPPERT: So no prior mailing? idea properly preserved prior this blood was mailing, “THE WITNESS: I did not mail it from the you? do hospital, no. “THE WITNESS: No."

103 Alston, (5th Toxicologist. cert. Cir.1972), We believe 460 F.2d 48 denied, respect.4 fail in this did 871, 200, 409 U.S. 93 S.Ct. 34 (1972). proponent L.Ed.2d 122 The regarding rule general The the admissi- bility of blood-alcohol the evidence ‘need not out aptly every test results rule Ap- stated States Court of United conceivable chance that somehow the Ballou v. peals the Fifth Circuit identity or character of the evidence un Studios, Inc., Henri 1147, 656 F.2d 1154- change_ long derwent So as the (5th Cir.1981), 55 as follows: persuaded court that as a matter firmly “It established this Circuit normal likelihood the evidence has been proponent whether adequately safeguarded, should proved adequate an evidence has permitted to consider and assess init custody goes weight rather light surrounding circumstances.’ than the Lane, 591 F.2d at 962-63. Under Fed.R. Unit jury. and is thus reserved for the 901, Evid. once of the evi Henderson, ed States v. 157, 588 F.2d dence requirement meets threshold denied, Cir.1979), cert. (5th 160 440 U.S. ‘in probabili reasonable 975, 1544, (1979); 99 S.Ct. 59 L.Ed.2d 794 ty article changed has not been White, United States 263, 569 F.2d denied, any important respect original cert. from its (5th Cir.1978), 266 439 U.S. Albert, 148, 848, condition,’ United States v. (1978); 99 S.Ct. L.Ed.2d 149 Ellis, United States v. 863, denied, 547 F.2d 283, (5th Cir.1979), cert. F.2d (5th Likewise, Cir.1977). the issue of 444 U.S. S.Ct. L.Ed.2d alteration, *5 contamination or adulteration (1979), any concerning doubts raised is a the jury the evidence possibility the of alteration or contamina once the the evidence tion of the go weight evidence to the and showing makes a threshold that reason not the admissibility of the evidence.” precautions against able were taken the To determine or whether the trial alteration, risk of contamination or adul Lane, teration. See United court abused its discretion when it admit- States United States v. (D.C.Gir.1979); copies F.2d 961 ted certified of Reil’s blood-alcohol " reading Only stopper glass Pursuant to our ‘I Had Two “2. Remove from vial before A Beers!’ North Dakota filling. Prosecutor's Manual These vials do not have a vacuum. appear person for DUI Cases” it would that "3. Place 10 ml of whole or who fills out the form to be filled the specimen liquid replace into the vial and the specimen comply collector would have to stopper. sample the directions for collection and submis- Immediately "4. invert the several vial times Quick, Only sion. See B. Had Two Beers: A prevent clotting. to dissolve the chemical and North Dakota Prosecutor’s Manual DUI tape layer “5. Seal the vial with one and Cases, (1984, 1986) (published by revised the subject label the vial with the name of the Office). Attorney North Dakota General’s arresting the officer. State’s exhibit 11 is the certification the State form, wrap “6. Fill out this vial, it around the Toxicologist forms that 104 and 107 attached place mailing in the container. copies originals thereto are true and correct paper top "7. Place or cotton tissue of the on file in his office. The exhibit does not con- Replace cap. vial. the metal screw sample tain the directions collection and mailing long, Seal "8. container with the submission. itHad contained the directions it by putting cap narrow label it over the appear ample would there that would have been attaching it to the cardboard sides. proof custody. of chain of Form 104 could be "9. Affix the return address label around the improved provision with the inclusion of a mailing container the over ends the seal. specimen the wherein collector certifies that he sample Toxicologist "Forward State placed or she followed the directions and refrig- delay. delay without If is unavoidable reg- drawn and sealed container in the sample erate the urine to minimize mailing process. loss ular The directions for drugs. postage alcohol & Use sufficient specimens collection and when submission for blood read as sent mail. follows: specimen "The containers for urine and blood “FOR BLOOD OR OTHER FLUID SPECI- azide, contain sodium and sodium fluoride & MENS oxalate, sterile, potassium respectively. dry, syringe, "1. Use These chemi- clean non-alcoholic, non-volatile, poisonous needle and a cals are skin and care should be taken handling disinfectant. the vial." that his a second issue Reil raises as from office obtained test result improperly results were Toxicologist, need to examine alcohol test we breath State care, not the custody proper ascertain whether record to admitted “because showing that rea- “a threshold made Solution was control of Standard against taken were precautions sonable not demonstrated.” alteration, or adul- contamination risk Hjelle, N.W.2d Pladson teration.” (N.D.1986), concluded: we demon- is no evidence argues there Reil hold that after the Commissioner “We sample of blood drawn strating copies relating to the certified introduced sample tested same him was the test, the fair- the administration argues Toxicologist. The State the State accuracy ness and of the test was suffi- form is itself result that the test If Pladson wished to dis- facie shown. custody. cient to establish credit the test results with evidence necessary for the State it is not While stale, it was standard solution was the blood have handled persons who call all produce such evi- responsibility the test re- to introduce sample in order Because Pladson dence at that time. upon the State to sults, it is incumbent any concerning failed to offer evidence sample tested is the same show that of the standard the need for freshness from the defendant. originally drawn one how time could affect solution or Sutherland, 683 P.2d 1192 People v. See accuracy, Pladson cannot solution or its Erwin, (Colo.1984);2 Drunk R. Defense of complain that the test was somehow now (3d 27.01, at 27-2 Ed. Driving Cases § unfairly inaccurately or administered. 1987). complied with the re- The Commissioner prove failed Because quirements of the statute and Pladson was the same one tested the blood rebutting offered no evidence.” Reil, that the trial we believe drawn from failed to as in Pladson Reil has admitting the blood-alcohol Just court erred in accordingly that rebutting to refute the any test result as evidence offer it denied Reil’s erred when the trial court his breath test prima facie *6 a new trial. motion for Accordingly, we was fair and accurate. err in that the trial court did not conclude Notwithstanding that we believe copies of Reil’s admitting the certified disposes of just decided issue we test results. also Ber- breath alcohol See case, other issues raised lest the Commissioner, 394 Highway v. ger in connection with Reil’s should arise brief trial, (N.D.1986). con- note that we have we N.W.2d 678 new and find them to be those issues sidered by Reil is to The next issue raised shall discuss them merit. We without 29-21-01,5 effect that and 29- the Sections briefly. then, 29-21-01, N.D.C.C., may parties respectively, The offer reads as follows: "4. 5. Section court, rebutting testimony only, unless the for jurors hav- Order tria!.—The. "29-21-01. of reason, sworn, justice, good in furtherance of or to ing impaneled the trial must been and following oversight, permits proceed in order: them to the correct an evident case; or indictment is for a original "1. If the information felony, upon offer evidence their attorney must read concluded, the clerk or state's When the evidence is unless "5. it, plea of the defendant to must state the is to the on either the case side, submitted formality may jury. other cases this all sides, argument, or on both without with; dispensed be commence, for the state shall and the counsel attorney, or other counsel for "2. The state's or his counsel shall follow. Then defendant state, open and offer the must the case for the state shall conclude the the counsel support or of the information evidence in indictment; argument jury; charge judge jury.” must “6. The then may or his then "3. The defendant open counsel defense and offer his evidence thereof; support 17-12, N.D.C.C.,6 complied plicit (5) were not (10) directions of subsections jurors were not sworn until after of (10) NDCC 39-20-07. Subsection § instructions, “preliminary says: in- opening plaintiff

structions de- of [statements] signed “A statement the nurse or given.” fendant were medical technician drawing the blood testing for set as forth subsec- 29-21-02, N.D.C.C., Section allows tion 5 is facie evidence judge to leeway vary trial the order of trial properly drawn and no as cause follows: further foundation for the admission may changed “Order trial be such may required.” evidence pleadings cause.—When the state of the it, requires any or in good Astonishingly, majority opinion re- reasons and in the jects sound discretion of this evidence single without a refer- court, argu- the order of trial ence to our North Dakota Rules of Evi- prescribed in ment section 29-21-01 dence. This is all astonishing the more departed from.” (from when the Federal Rules Evidence drawn) our NDREv are are identi- objection as Inasmuch no was made quotation fied in the from Ballou v. Henri Reil on the record the variation in the Studios, Inc., supra, which correctly out- procedure usual having trial lined the approach modern to use of blood beginning prior sworn at the of the trial test results under the Fed.R.Evid. Curi- opening statements in- preliminary ously, admissible, Ballou held blood test structions, we conclude that this issue which the trial court had excluded “due to before us. See State v. regarding possible concerns breaks in the Ronngren, (N.D.1985); 361 N.W.2d 224 ‘chain of custody’ ...” 656 F.2d 1154-1155. Klose, (N.D.1983); v. N.W.2d 647 And, two other major- decisions cited in the Hartsoch, (N.D. State v. N.W.2d ity opinion sustained the 1983). objections test results over For the reasons earlier herein stated gaps in of custody.” the “chain Sullivan judgment of conviction and the order of the Municipality Anchorage, 577 P.2d county denying court Reil’s motion for a (Alaska 1978) (“We do not be- trial are new reversed and this case gain by lieve there is anything requiring remanded for newa trial. parade a mechanistic of witnesses en- sure possibility tamper- error or GIERKE, VANDE WALLE and ing precluded beyond any doubt.”); Peo- LEVINE, JJ., concur. Sutherland, ple 683 P.2d MESCHKE, Justice, dissenting. (Colo.1984)(“We hold that in the absence any dissent. tampering lack of *7 authentication, proponent of evidence majority opinion The holds that certi- relating to the of results a blood-alcohol copy fied of the results of the blood test supporting test and the exhibits is re- not Toxicologist’s from the State Office was quired to call may each witness who have erroneously admitted as evidence because exhibit.”) handled the prove “the State failed to that the blood sample tested was the same one The by drawn exhibit the majority excluded But, from Reil....” ruling opinion signed does not contained the statement of really explain gets how it around the ex- sample nurse who obtained the N.D.C.C., 29-17-12, 6. qualified jurors. Section reads as follows: Jurors shall be sworn or truly try affirmed well and to jurors and true deliv- "29-17-12. Number sworn. of —How felony In all when a and class A misdemeanor cases erance make between the state of North Dako- jury impaneled, jury a shall consist they ta and the defendant whom shall qualified jurors of six unless the defendant charge, give according and a true verdict to to timely jury makes a written a of demand for evidence, and such verdict must be unani- twelve. In all other misdemeanor cases when mous." impaneled, a a shall consist of six and outmoded attitudes single The anachronistic a sheet. uate top half of on the by Toxicol- Better consideration analysis the State evidence. of the about report half of the of evi- on the bottom of our rules ogist’s approach Office was the modern inte- pur- this internal promote I believe same form. their dence is essential sam- sufficiently connects the blood gration poses: laboratory analy- ple the results with to se- “These shall be construed rules sis, by the Toxicolo- certified when administration, elimina- cure fairness gist. It is evident delay, expense unjustifiable tion Any laboratory. to the got from the nurse develop- promotion growth and authenticity of such doubts to the end ment the law go to the report should a blood may be ascertained and truth admissibility weight and not the proceedings justly determined.” NDREv Vetsch, 368 N.W.2d evidence. Rule (N.D.1986). a cur- excerpts from the work of Several 901(a) says: NDREv Rule help my scholar make rent on evidence “(a) require- Provision. The General point: or identification ment of authentication point “The is that whenever central precedent condition as a challenged on proffered evidence sup- sufficient is satisfied identity, grounds authenticity it or question port finding that the matter should be admitted once a facie claims.” is what its Such case has been made the issue. 901(b) says: NDREv Rule finding authenticity guaran- does not “(b) By illustra- Illustrations. way of will considered tee that the evidence limitation, way only, tion permits fact. it trier of While examples of authentica- following are the evidence it is—as are all admission of conforming with tion or identification under questions of conditional relevance rule: requirements of this jury’s 104(b) subject Rule ulti- — genuineness. determination as to its mate Characteristics “(4) Distinctive evi- opposing party may The introduce contents, sub- the Like. Appearance, argue genuineness and disputing dence stance, dis- patterns, or other internal point jury. to the Once the evidence characteristics, in con- tinctive taken one of is admitted the becomes junction circumstances. credibility probative force and the propo- may ultimately trier disbelieve the or Provided “(10) Methods Statute proof disregard entirely nent’s or Rule. method of authentication Any substantially persuasive discount the im- complying with these or identification The pact of the evidence admitted. rule rules, by the adopted or other rules requires only that admit evi- court Court, Supreme or as North Dakota proof dence sufficient has been intro- provided by statute.” juror so duced reasonable could 104(b) says: NDREv Rule authenticity find favor of or identifica- “(b) on Fact. Relevancy Conditioned up jury.” tion. The rest is J. relevancy de- Berger, Whenever the of evidence M. Weinstein & 5 Weinstein’s upon of a condition pends the fulfillment 901(a)[01], Evidence at 901-16 to 18 H fact, upon, the court shall admit it *8 (1983). to, the subject discretion the court’s opted “The draftsmen to treat authen- sup- of evidence sufficient introduction specialized tication and identification as finding port a of the fulfillment result, pre- rules of As relevance. condition.” liminary of fact is one for the condition See also NDREv Rule 1008. trier of and the standard of admissi- fact bility required our identical under pay When we do not attention to 104(b) relating perpet- Rule to matters of condi- current rules of fear we

1Q7 tional generally relevance a find- —would ing of fulfillment of the condition be Poyzer, A.W. POYZER and Bonita supported by ap- the evidence? This Appellees, Plaintiffs and proach generally reflects the Rules’ lib- preference eral for admission of evidence The AMENIA SEED AND GRAIN comports with the conclusions of ear- COMPANY, a North Dakota lier codifiers. Corporation, Defendant, ignore “This repudiate rule does not justifications the policy for the authenti- requirement. simply recognizes cation It Cargill Incorporated, a question Delaware proba- that where the one Corporation, Defendant credibility

tive force or necessarily it —as Appellant. always questions is with of authenticity identity competent is as as —the Myrtle POYZER, H. Plaintiff the court. The is constituted ex- Appellee, pressly purpose for the applying com- community mon sense and mores to dis- puted principal issues of fact where the The AMENIA SEED AND GRAIN always is almost one of credibil- COMPANY, a North Dakota ity. 104(b), 602, In 901(a) Rules and the Corporation, Defendant, second sentence of Rule 1008 the court is told admit juror where reasonable

might find for the on the issue Cargill Incorporated, a Delaware of relevancy. deciding whether to Corporation, Defendant and admit, issues credibility are decided Appellant. proponent. favor of the See discussion Id., in 111008(a)[02].” 901(a)[02] H at 901- Civil Nos. 11413. 21 to 22. Supreme Court of North Dakota. “Wigmore’s conclusion that con- mere will tents suffice un- authenticate June less the author would have known the details contrary to the federal

rules and unsound. per- Even if other

sons would have known the details of the

writing, it can be shown that under the unlikely

circumstances it they

would have written the letter. Proof

these circumstances and the contents writing can then sufficiently authen-

ticate the document. The common law

prejudice against self-authenticating doc-

uments is not carried over into the Feder-

al Rules.” 901(b)(4)[01] Id. If at 901-50

to 51.