§ 31-04-04.1 — Videotaped statement of child sexual offense victim - Criteria for admission as evidence

North Dakota § 31-04-04.1

• Jurisdiction: North Dakota
• Title 31: Judicial Proof
• Ch. 31-04: General Provisions

Text

admission as evidence.
1. In any prosecution for a violation of section 12.1-20-03, 12.1-20-03.1, 12.1-20-04,
12.1-20-05, 12.1-20-06, 12.1-20-07, or 12.1-20-11 in which the victim is less than
fifteen years of age, the oral statement of the child victim may be recorded before trial
and, subject to subsection 2, is admissible as evidence in any court proceeding
regarding the offense if the following conditions are satisfied:
a. The court determines there is reasonable cause to believe that the child victim
would experience serious emotional trauma as a result of in-court participation in
the proceeding;
b. The accused must be given reasonable written notice of the time and place for
taking the videotaped statement;
c. The accused must be afforded the opportunity to hear and view the testimony
from outside the presence of the child by means of a two-way mirror or other
similar method that will ensure that the child cannot hear or see the accused;
d. The accused must have the opportunity to communicate orally with counsel by
electronic means while the videotaped statement is being made; and
e. All questioning must be done by the prosecutor or counsel for the defendant
unless the defendant is an attorney pro se. An attorney pro se must conduct all
questioning from outside the presence of the child. Upon request of any of the
parties or upon the determination of the court that it would be appropriate, the
court may appoint a person who is qualified as an expert and who has dealt with
the child in a therapeutic setting to aid the court throughout proceedings
conducted under this section and the court may appoint a guardian ad litem to
protect the interests of the child.
2. A child victim's videotaped statement is admissible pursuant to subsection 1 if the
court finds that the child is unavailable as a witness to testify at trial and, upon viewing
the videotape recording before it is shown to the jury, determines that it is sufficiently
reliable and trustworthy and that the interests of justice will best be served by
admission of the statement into evidence. For purposes of this subsection,
"unavailable" includes a determination, based on medical or psychological evidence or
expert testimony, that the child would suffer serious emotional or psychological strain if

required to testify at trial. The court, in making its findings and determinations under
this subsection, shall consider at least the following:
a. The nature of the offense;
b. The significance of the child's testimony to the case;
c. The child's age;
d. The child's psychological maturity and understanding; and
e. The nature, degree, and duration of potential injury to the child from testifying.