The North Dakota Supreme Court heard oral argument in State of North Dakota v. Spencer J. Mohan over whether the trial court made sufficient factual findings to allow two child witnesses to testify remotely, attorneys told the court.

The appeal centers on a state statute enacted in February 2017 (cited in argument as 31-04-04.2) that permits testimony by reliable electronic means in certain cases involving minors. At issue is whether the district court made the factual findings required by the statute — specifically, that the children would suffer serious emotional distress or trauma that would materially affect their ability to communicate in court — or impermissibly relied on other metrics such as the children’s hypothetical “truthfulness.”

Samuel Jareczak, attorney for the appellant, argued the district court “leaped from truthfulness to serious emotional distress” without sufficient evidence that testimony in the defendant’s presence would cause the children to be unable to communicate. Jareczak told the justices the experts’ testimony focused on whether the children would be “truthful” and that the trial judge did not hear directly from the children at the pretrial motion hearing. He said the children later testified at trial that they were not afraid of their father and at times said they wanted to live with him, and argued the judge’s reliance on expert statements rather than direct questioning of the children was legally insufficient. Jareczak also urged that the claimed constitutional confrontation error could amount to structural error but did not cite controlling authority for that proposition.

Renata Olafson Selzer, assistant state’s attorney for Cass County, told the court the trial court followed the statute and the procedure recognized by the U.S. Supreme Court in Maryland v. Craig. Selzer described the facts and the court’s findings: the two child witnesses were five years old at the time of the incident and six at trial; therapists at the Sanford Traumatic Stress Treatment Center had seen the children about 36 times before the motion hearing and had diagnosed one child with post-traumatic stress disorder and the other with trauma-related symptoms; the court found the children would likely suffer serious emotional distress and that their ability to reasonably communicate could be impaired. Selzer said the trial court implemented a two-way remote procedure so the jury, judge and courtroom could see and hear the children and the defendant retained the right to cross-examine them.

Both sides addressed evidentiary choices at trial. Selzer said police interviews recorded at the Children’s Advocacy Center were available as video statements but the state declined to rely on the videos at trial because they could be inadmissible under North Dakota’s hearsay framework; she told the court the statutory hearsay exception for child abuse statements (cited in argument as N.D.R. Evid. 803(24)) did not apply because this prosecution involved children who witnessed physical violence rather than allegations of sexual abuse. Defense counsel and a justice discussed whether the judge could or should have brought the children to the motion hearing to assess the factual question directly and whether the court’s reliance on expert testimony alone was sufficient for the statute’s requirements.

The justices also questioned whether Rule 43 — the rule discussed in argument governing a defendant’s presence at proceedings — or other procedural limits affected the motion-hearing process, and whether that rule’s text (as argued) constrains a court’s ability to waive the defendant’s presence for factfinding. Counsel and the bench debated if the motion hearing was limited to legal questions (where Rule 43 is more clearly applicable) or whether it required factual findings for which the defendant’s presence or the children’s direct appearance would matter.

The court did not rule from the bench. After argument, the justices took the appeal under advisement; a written decision will be issued later.

This reporting is based on the parties’ oral arguments and the portions of the trial record discussed at argument, including testimony and a pretrial expert letter identified in the record (referred to during argument as record 65).