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How does technology, including the proliferation of personal recording devices, affect legal proceedings? Should recorded testimony, for instance, have the same weight as in-person testimony?

These were among several questions explored during a panel discussion on February 6, 2023  by the New Hampshire Supreme Court Society and the Warren B. Rudman Center for Justice, Leadership & Public Service: The NH Supreme Court: How Recent Trends Can Inform Future Litigation Strategies.  Watch the full conversation . 

“Watching somebody testify on a camera with a recording is not the same as seeing the person in person,” said Elizabeth Woodcock, Assistant Attorney General, Criminal Justice Bureau.  In a recent case involving the N.H. Attorney General’s office, after a witness died following a hung jury, the court was left with only her recorded testimony, Woodcock said. “What does that do to the fundamental right of confrontation?”

Although these recent technological advances may seem revolutionary, Woodcock said, there have been other consequential developments throughout legal history, dating back to the time of Hippocrates, when stenography was first used.  Watching live broadcasts of trials is also not new, she said.  But Woodcock suggested that the use of recorded testimony raises many questions.

“Right now, it isn’t evidence. But should it be?” she asked. “Should the court actually be looking at the testimony at the time it’s being given? And what does that say to us about how trials will be conducted in the future and how evidence will then go to the appellate court?

Deferential Appellate Review

Chris Johnson, Chief Appellate Defender at NH Public Defender, argued for a new approach to deferential appellate review.  As it stands now, he said: “The idea is that an appellate court will not substitute its judgment for the trial court on some ruling so long as trial-court decision falls within a more or less broad range of reasonableness. And the breadth of that range is defined by the degree of deference,” he said.

Johnson said deference is called for in the following instances:   

• Let there be appellate deference on matters as to which the trial court truly is in a better position, as when the judge is called upon to judge credibility--for example, to look at the trickle of sweat coming down the side of the face of the witness.
• Let there be appellate deference when the law does not even in principle establish one right answer but allows for several.

But Johnson proposed that the appeals court should not defer to the trial court “when there is in principle one right answer. Let the highest court say what it is.” 

Right to Know, Voting Rights, Taxpayer Standing

Gilles Bissonnette, legal director of the ACLU of New Hampshire, and Jim Kennedy, Solicitor for the City of Concord, discussed several NH Supreme Court rulings, including a Right-to-Know case involving personnel records of a police officer in the town of Canaan who was accused of using excessive force during a traffic stop.  It was the first time the Court had evaluated such a case since deciding that personnel records for government employees are not categorically exempt from disclosure, Bissonnette said.

Although the excessive force claim was not sustained, the Court still ordered disclosure of the internal report.

“The finding of it being not sustained and still ordering disclosure of this information is really powerful,” Bissonnette said. “And I think is really a signal from this court that, sustained or not, misconduct or not, there is real value in this information so the public can vet and evaluate the integrity of investigations. Because when these are done in secret, there tends to be a lot of suspicion: Are things being done right? Are things being swept under the rug?  And I think the court was really sensitive to that.”

Bissonnette said a tougher question is whether government employees outside the law-enforcement context, such as a clerical worker, will receive the same treatment.

Other cases discussed involved taxpayer standing -- whether a taxpayer had standing to sue the NH Department of Health and Human Services for alleged shortfalls in protecting children involved in the child welfare system – and N.H. Supreme Court jurisdiction over voting laws and redistricting issues.   

Bissonnette summed up the Court’s position on voting issues in this way:

“The New Hampshire Constitution, the New Hampshire Supreme Court has value,” he said.  “We do have the ability consistent with federalism principles to evaluate voting laws, redistricting-related issues. That’s a critical role of the state Supreme Court.”