An oral examination is an examination in the presence of the jury or tribunal which is to decide the fact or act upon it, the testimony being heard by the jury or tribunal from the lips of the witness.
31-04-04.1. Videotaped statement of child sexual offense victim - Criteria for 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.
31-04-04.2. Use of audiovisual equipment for the testimony of minors or disabled adult witnesses. 1. At the time of trial, if the witness is a minor or is a disabled adult as defined in section 12.1-31-07, the court may order the witness's testimony be taken in a room other than the courtroom and be televised by audiovisual equipment in the courtroom if: a. The testimony is taken during the proceeding; b. 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; and c. Audiovisual equipment is available. 2. To obtain an order authorizing the use of audiovisual equipment for testimony by a minor or disabled adult witness, the party shall file a written motion with the court no later than fourteen days before the trial. 3. Only the prosecuting attorney, attorney for the defendant, guardian ad litem, and the judge may question the minor or disabled adult witness. 4. The following individuals may be in the room with the witness when the minor or disabled adult provides testimony: a. The prosecuting attorney; b. The guardian ad litem; c. The judge while administering the oath; d. The operators of the audiovisual equipment; e. By order of the court, an individual whose presence contributes to the welfare and well-being of the witness, including an individual who has dealt with the witness in a therapeutic setting; and f. An attorney representing the defendant. 5. The judge and defendant must be allowed to communicate with the individuals in the room where the witness is testifying through audiovisual equipment or by meeting outside the presence of the witness. 6. This section does not preclude the presence of both the witness and the defendant in the courtroom at the same time for purposes of identifying the defendant.