N.D. Supreme Court hears challenge to remote testimony and sufficiency of evidence in Didier commitment review

The North Dakota Supreme Court heard oral argument in the appeal of Lawrence Didier on whether a district court may allow a witness to testify remotely under Rule 52 and whether the state proved Didier should remain civilly committed.

The issue before the justices centered on Rule 52, subsection 3(b), and whether the statute permits a full trial—or a proceeding the appellant called a “trial”—to proceed when key witnesses testify by reliable electronic means without the respondent’s consent. Appellant counsel Tyler Morrow told the court, “If there's gonna be a witness that needs to be cross examined, I want an in person hearing.” He argued that the contested hearing in Jamestown amounted to a new trial in which the court should not allow the state’s expert to testify remotely over objection.

The state, represented by assistant state attorney Mary DePute, urged the court to read the rule as written and to respect the district court’s discretion. DePute told the court that whether the proceeding is labeled a “trial” or something else, “the procedure used by the district court was appropriate,” and she said the rule explicitly gives the court discretion to permit remote testimony.

Morrow argued the rule’s language is ambiguous when an entire proceeding turns on the testimony of a single witness, and warned of a broader effect if courts routinely allow remote testimony: fewer lawyers and judges traveling to rural areas and an erosion of what he called the in-person dynamics important to cross-examination and credibility assessment. He also pressed the court on delays in scheduling: defense counsel said the expert report underlying the state’s evidence was several hundred days old (counsel cited roughly 347 days; the state cited a figure near 363 days) and argued the report therefore did not reflect the respondent’s present condition.

DePute countered that the district court record showed other trial components occurred in person—counsel, the respondent and the judge were physically present—and that permitting a single expert to appear remotely did not transform the entire proceeding. She emphasized precedent and definitions of “trial” that encompass opening and closing statements and other components beyond testimony, and warned that adopting the appellant’s narrow definition would yield absurd results and allow parties to manipulate the rule by calling or releasing witnesses to avoid remote testimony rules.

Both sides also disputed the sufficiency and currency of the state’s expert evidence on Didier’s present risk and volitional control. Morrow argued the state’s expert, Dr. D'Orazio, had not interviewed Didier or recent treatment providers, did not know Didier’s present security or treatment level, and therefore could not show the “present-day” impairment required for continued commitment. DePute replied that the expert report otherwise fell within admissible evidence, that timeliness and weight are credibility matters for the trial court, and that the absence of a more current independent-examiner report can permit negative inferences about whether conditions have changed.

The court did not issue a decision at argument. The justices took the case under advisement.