supported by substantial evidence and was not arbitrary, capricious, or unreasonable. The patron’ s conduct, as described in the police report and shown on video, provided ample evidence of intoxication.
In a concurring opinion, Justice Tufte, joined by Chief Justice Jensen, cautioned that courts should rarely raise constitutional questions sua sponte. He emphasized when parties are represented by counsel, courts should defer to the issues actually presented and, where appropriate, address vagueness challenges on an as-applied rather than facial basis.
State v. Moen, 2025 ND 163. Filed on 10 / 9 / 25.
Moen appealed from a criminal judgment entered after a jury found him guilty of murder, arguing the district court violated his constitutional right to confront witnesses when it failed to comply with statutory requirements for allowing remote testimony by child witnesses. The Supreme Court affirmed, concluding the district court made the findings required to permit remote testimony, and the findings were not contrary to the manifest weight of the evidence.
The state alleged he killed his wife in their home while their minor children were present. Prior to trial, the state filed a motion requesting permission for the children to testify outside the courtroom by reliable electronic means, claiming the children“ witnessed portions of the domestic violence” that resulted in the victim’ s death. The state asserted that requiring the children to testify in the presence of Moen would cause them emotional distress and impact their ability to testify.
The district court held a hearing on the state’ s motion and received testimony from a clinical psychologist who provided therapy to the boy and a behavioral health counselor that provided therapy to the girl. The district court held a separate hearing where the parties presented their arguments, and at the conclusion of this hearing, granted the state’ s motion. The district court found that remote testimony was necessary, because if the children were required to testify in front of Moen, they“ would likely suffer serious emotional distress or trauma and it would impact their ability to reasonably communicate.” At his trial, the children then each testified by electronic means that allowed two-way communication. At the conclusion of the trial, the jury returned a guilty verdict, and the district court sentenced Moen to life imprisonment without the possibility of parole.
The Sixth Amendment to the United States Constitution, applicable to the states through the Fourteenth Amendment, provides“ in all criminal prosecutions, the accused shall enjoy the right... to be confronted with the witnesses against him.” The North Dakota Constitution has a similar guarantee providing“ the party accused … the right... to appear and defend in person.” The Supreme Court noted that while the Confrontation Clause reflects a preference for face-to-face confrontation at criminal trial, is not absolute, and in certain cases may,“ bow to accommodate other legitimate interests in the criminal trial process.” The United States Supreme Court has held that a state’ s interest in the physical and psychological well-being of child abuse victims may be sufficiently important to outweigh a defendant’ s right to face his or her accusers in court.
N. D. C. C. § 31-04-04.2 codifies this requirement from the United States Supreme Court relating to trauma and its impact on a child’ s ability to communicate. The statute provides, in relevant part, that if,“ The judge determines the testimony of the witness in the presence of the defendant would result in the witness suffering serious emotional distress or trauma that would impact the ability of the witness to reasonably communicate,” a minor may be examined in a room other than the courtroom.
Moen did not challenge the constitutionality of the statute, but argued the district court failed to comply with its requirements in that no findings of necessity, trauma, or a compelling state interest were made on the record, thus the remote testimony denied him his right to in-person confrontation and cross-examination. The Supreme Court disagreed, highlighting the fact the district court heard testimony from experts who provided therapy to the children after their mother’ s death. The Supreme Court noted the district court expressly identified N. D. C. C. § 31-04-04.2( 1) as the governing law, that the experts each had 36 meetings with the children, and the district court specifically found remote testimony was needed because Moen’ s presence would re-traumatize the children and impact their ability to reasonably communicate, including that the children“ could likely shut down [ and ] cry uncontrollably.” The Supreme Court concluded these findings were not contrary to the manifest weight of the evidence and the district court complied with N. D. C. C. § 31-04-04.2( 1), therefore Moen had not established his constitutional right to confront witnesses was violated through a failure to comply with the statute.
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