Remote Child Testimony Permissible Upon Presence‑Specific Trauma Impairing Communication: State v. Moen, 2025 ND 163

Introduction

In State v. Moen, 2025 ND 163, the North Dakota Supreme Court affirmed a murder conviction over a Confrontation Clause challenge arising from the district court’s decision to allow two minor children—the defendant’s five-year-old son and daughter—to testify remotely by audiovisual means. The central issue was whether the district court complied with North Dakota Century Code § 31‑04‑04.2(1), which codifies Maryland v. Craig’s constitutional requirements for taking child witness testimony outside a defendant’s physical presence. The defendant, Spencer Jay Moen, argued that the court failed to make statutorily required, case-specific findings of trauma and necessity and therefore violated his confrontation rights under the state and federal Constitutions.

The Supreme Court, in an opinion by Chief Justice Jensen, concluded that the district court made adequate, on-the-record findings that the children would likely suffer serious emotional distress or trauma if required to testify in Moen’s physical presence and that such trauma would impair their ability to reasonably communicate. Those findings were supported by expert testimony and were not contrary to the manifest weight of the evidence. The Court thus held that the statutory and constitutional standards were satisfied and affirmed the judgment.

Summary of the Opinion

• The Court affirmed the conviction, holding that N.D.C.C. § 31‑04‑04.2(1) was satisfied and the Confrontation Clause was not violated.
• The statute, which incorporates the constitutional framework of Maryland v. Craig, requires the trial court to find that testifying in the defendant’s presence would cause serious emotional distress or trauma that impacts the child’s ability to reasonably communicate.
• The district court held two hearings, received testimony from a clinical psychologist and a behavioral health counselor, and made oral findings that:
  • The children suffered from trauma-related disorders (PTSD for the boy; other trauma and stressor-related disorder for the girl);
  • The trauma was tied specifically to the presence of the defendant (not the courtroom generally); and
  • The trauma would likely impair their ability to communicate (e.g., shutting down, crying uncontrollably).
• The Court applied a deferential standard to the trial court’s pretrial factual findings and found them supported by competent evidence and not against the manifest weight of the evidence.
• Although the district court noted that the children might testify “more truthfully and more completely” outside Moen’s presence, the Supreme Court stressed that the ruling rested on the required trauma-and-communication findings, not on credibility enhancement alone.

Detailed Analysis

Precedents and Authorities Cited

• Sixth Amendment and North Dakota Constitution: The Court reiterated that the Sixth Amendment, applied to the states via the Fourteenth Amendment, guarantees the right to confront adverse witnesses; North Dakota Constitution art. I, § 12 provides a similar guarantee and a right to appear and defend in person. See City of Fargo v. Komad, 2006 ND 177, ¶ 5.
• Purpose and scope of confrontation: The right includes physical face-to-face confrontation and cross-examination, but is not absolute and can yield to compelling interests with adequate safeguards. See State v. Fischer, 459 N.W.2d 818 (N.D. 1990); State v. Woinarowicz, 2006 ND 179, ¶ 8; Chambers v. Mississippi, 410 U.S. 284 (1973).
• Maryland v. Craig, 497 U.S. 836 (1990): The cornerstone precedent authorizing departures from face-to-face confrontation for child witnesses when:
  • The State makes a case-specific showing of necessity;
  • The trauma is caused by the presence of the defendant (not the courtroom generally); and
  • The trauma is more than de minimis and would impair the child’s ability to communicate.
  • Constitutional adequacy depends on maintaining the essence of confrontation through oath, cross-examination, and the factfinder’s ability to assess demeanor.
• North Dakota statutory codification: N.D.C.C. § 31‑04‑04.2(1) tracks Craig and authorizes child testimony outside the courtroom via audiovisual equipment if the judge determines that in-person testimony in the defendant’s presence would cause serious emotional distress or trauma impacting the witness’s ability to reasonably communicate, provided equipment is available.
• Statutory vs. constitutional overlap: The Court rejected “bootstrapping” a statutory misstep into a constitutional claim in general (Serenko v. City of Wilton, 1999 ND 88, ¶ 15), but explained that here, both the statute and the Sixth Amendment (as interpreted by Craig) demand the same findings, so full constitutional review was appropriate.
• Procedural findings requirement: N.D.R.Crim.P. 12(d) requires courts to state essential findings for pretrial motions; the Supreme Court needs an adequate explanation to review. See State v. Rolland, 2024 ND 175, ¶ 13; State v. Knox, 2016 ND 15, ¶ 10.
• Standard of review:
  • Pretrial factual findings are affirmed if supported by sufficient competent evidence and not contrary to the manifest weight of the evidence; no de novo review. See State v. Stenhoff, 2019 ND 106, ¶ 8; State v. Whitman, 2013 ND 183, ¶ 20.
  • Whether the findings meet the legal standard is a question of law reviewed de novo. See State v. Graf, 2006 ND 196, ¶ 7.

The Court’s Legal Reasoning

1. Identifying the controlling framework: The Court held that both § 31‑04‑04.2(1) and Craig govern. To comply, the district court had to make case-specific findings that:
   • The trauma arises from the presence of the defendant (not the courtroom at large); and
   • The trauma would impact the child’s ability to reasonably communicate.
2. Record evidence of presence-specific trauma and impaired communication: The State presented two treating professionals:
   • A clinical psychologist treating the son, diagnosed with PTSD, opined that being in front of his father would trigger a resurgence of PTSD symptoms, leading to fear and inaccurate or impaired testimony.
   • A behavioral health counselor treating the daughter, diagnosed with an “other trauma and stressor-related disorder,” opined that appearing before her father would likely re-traumatize her and impede communication, emphasizing it was the defendant’s presence that would cause the reaction.
3. Trial court’s on-the-record findings: The district court expressly cited § 31‑04‑04.2(1), found the State’s experts credible (each had extensive treatment contact), and stated that the children would likely suffer serious emotional distress or trauma if required to testify in Moen’s presence, and that such distress would impact their ability to reasonably communicate (e.g., shutting down, crying uncontrollably). The court further clarified that the distress was not general testifying stress but specific to facing Moen.
4. Response to the “veracity” criticism: While the trial court observed the children might testify “more truthfully and more completely” remotely, the Supreme Court held that this was not the ruling’s foundation. The essential, controlling findings were the presence-specific trauma and communication impairment, which satisfy § 31‑04‑04.2(1) and Craig.
5. Appellate posture: Applying the manifest-weight standard, the Supreme Court deferred to the district court’s credibility assessments and found ample competent evidence supporting the findings. On the legal question, the Court concluded the findings met the statutory and constitutional standards.
6. Safeguards and reliability preserved: The children were sworn, testified live by two-way audiovisual means, and were subject to contemporaneous cross-examination. The jury was instructed not to infer anything from the remote format. These features preserved the core confrontation values recognized in Craig—oath, cross-examination, and demeanor assessment—despite the lack of face-to-face physical confrontation.

Impact and Future Applications

State v. Moen reinforces and clarifies North Dakota’s path for admitting remote child testimony without violating the Confrontation Clause:

• Clear, case-specific findings are essential: Trial courts must articulate on the record that the trauma arises from the defendant’s presence and that it would impair the child’s ability to communicate. Generalized anxiety about testifying is insufficient.
• Expert testimony matters: Treating professionals’ opinions linking the symptomatology to the defendant’s presence and explaining the communication impact provide robust support. Moen signals substantial deference to trial courts that rely on credible, unrebutted expert evidence.
• Veracity is not the touchstone: While courts may note that remote testimony can enhance completeness or candor, the constitutional and statutory gateway is necessity based on presence-specific trauma and communication impairment.
• Procedural safeguards remain crucial: Two-way audiovisual transmission, live cross-examination, administration of the oath, and jury instructions help maintain confrontation’s core values and the reliability of the process.
• Standard of review creates an uphill path for appellants: Because pretrial factual findings are reviewed for whether they are contrary to the manifest weight of the evidence, successful appeals will likely require showing the absence of credible, presence-specific evidence or a failure to make clear findings.
• Applicability beyond “child abuse” prosecutions: Although Craig arose in a child abuse context, § 31‑04‑04.2(1) applies to minors generally. Moen confirms its use in serious domestic violence and homicide prosecutions when the statutory and constitutional predicates are met.

Practical Guidance and Checklists

For trial judges

• Hold an evidentiary hearing and take testimony (preferably from treating professionals) focused on:
  • The child’s diagnosis or symptoms;
  • The causal nexus to the defendant’s presence (not the courtroom generally);
  • How the trauma would impair communication (e.g., shutting down, inability to respond, uncontrollable crying).
• State essential findings on the record per N.D.R.Crim.P. 12(d), expressly tracking § 31‑04‑04.2(1) and Craig.
• Ensure two-way communication and preserve confrontation safeguards: oath, live cross-examination, visual access for the jury to assess demeanor.
• Give a neutralizing jury instruction that no inference should be drawn from the remote method of appearance.

For prosecutors

• Proffer detailed, presence-specific expert testimony tying the defendant’s presence to trauma and to communication impairment.
• Build a record that remote testimony is necessary for the particular child and that it preserves confrontation safeguards.

For defense counsel

• Challenge the nexus between trauma and the defendant’s presence (as opposed to general trial stress).
• Probe whether the predicted impairment of communication is concrete and more than de minimis.
• Consider proposing less intrusive alternatives (e.g., courtroom accommodations) and develop a record if the court declines them.
• Ensure objections preserve both statutory and constitutional grounds, and request specific findings if they appear incomplete or equivocal.

Complex Concepts Simplified

• Confrontation Clause: A constitutional right of a criminal defendant to face adverse witnesses and to cross-examine them. It prefers face-to-face physical confrontation but allows limited exceptions when necessary and with safeguards.
• Case-specific necessity: The court must look at the particular child and the particular case to determine if a special procedure (like remote testimony) is necessary—not rely on generalized assumptions.
• Presence-specific trauma: The trauma must be caused by the defendant’s presence, not by the courtroom environment in general.
• Impairment of communication: The trauma must be severe enough to hinder the child’s ability to testify effectively (e.g., inability to speak, extreme emotional dysregulation), not merely discomfort.
• Two-way audiovisual testimony: A live video setup where the witness and courtroom participants can see and hear each other in real time. It preserves cross-examination and demeanor assessment, essential to confrontation.
• “Manifest weight of the evidence” review: An appellate court defers to the trial court’s factual findings unless, considering the whole record, those findings are clearly against the weight of the evidence; the appellate court does not reweigh credibility or start over.
• Essential findings (Rule 12(d)): The trial judge must explain on the record the key factual determinations and legal reasons for the ruling so an appellate court can review the decision without speculation.
• Statutory–constitutional overlap: Sometimes a statute mirrors constitutional requirements (as § 31‑04‑04.2(1) mirrors Craig). In such cases, meeting the statute often satisfies the constitutional standard.

Conclusion

State v. Moen confirms North Dakota’s alignment with Maryland v. Craig and provides practical clarity on the procedural and evidentiary showing necessary to authorize remote testimony by child witnesses. The Court’s decision underscores three essentials: the trauma must be linked to the defendant’s presence; the trauma must demonstrably impair the child’s ability to communicate; and the trial court must articulate those findings on the record. With those predicates, and with safeguards such as live cross-examination, oath, and visual observation preserved through audiovisual technology, remote child testimony can be admitted without violating the Confrontation Clause.

Moen’s significance lies in its faithful application of long-established constitutional principles to modern courtroom practice: it both protects the integrity of the adversarial process and accommodates the welfare of vulnerable child witnesses. Going forward, trial courts, counsel, and litigants have a clearer blueprint for when—and how—remote child testimony may be used in North Dakota criminal trials.