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Bar Journal - Fall 2005

BEYOND STATE V. KIDDER: Defining a Defendant’s Right to Contact Witnesses in Domestic Violence Cases

By:


I. Introduction

           

Few would disagree that the emotionally charged, dangerous, and high intensity crime of domestic violence poses unique challenges to our justice system. These challenges were brought to the fore recently when the New Hampshire Supreme Court issued State v. Kidder.1 This case illustrated the difficulties courts face in balancing victim and defendant rights, specifically when it comes to a defendant’s right to contact that victim as a witness. While the Court’s decision concerned interpretation of a civil statute, it has also had a broader effect on criminal domestic assault cases. And while the legislature’s proposed response to Kidder, which failed to pass this session,2 would likely remedy some of these broader problems, questions still remain.

           

State v. Kidder defined the bounds of the no-contact provision of a 173-B civil domestic violence restraining order.3 Strictly interpreting the text, the Court determined that a defendant who knowingly contacted the plaintiff through his attorney could be found guilty of violating that order, regardless of the intentions behind that contact.4 The decision sent shock waves through New Hampshire’s legal community.

           

Family law attorneys and criminal defense attorneys concluded that previously routine third-party communication with 173-B plaintiffs needed to change, or rather, cease, altogether.5 Otherwise, attorneys would risk exposing their clients to criminal charges for violating the protective order regardless of the purpose of the communication.

 

II. The Kidder Facts

           

Without the benefit of an evidentiary hearing and thus relying on a trial court’s statement of the case, the Supreme Court stated the facts as follows: An unrepresented plaintiff filed for and was granted a temporary domestic violence restraining order against the defendant.6 After being notified of the petition, the defendant hired an attorney.7 At the defendant’s direction, that attorney contacted the unrepresented plaintiff to arrange for a meeting with all three parties present.8 The plaintiff then contacted the police to report that she feared the defendant “would talk her out of pursuing the domestic violence matter.” 9

           

As a result of the plaintiff’s report, the defendant was charged with a class A misdemeanor for having third-party contact with the plaintiff through his attorney in violation of the no-contact provision of that order.10 In response, the defendant’s attorney filed a motion to dismiss the charge.11 Rather than decide the motion, the District Court certified what it considered to be unresolved legal questions about third-party contact under 173-B, to the New Hampshire Supreme Court.12

 

III. The Court’s Reasoning

           

In deciding the case, the Supreme Court looked at the statute’s plain language and legislative intent. It found no explicit exceptions to the no-contact provision of a protective order.13 It also found no indication that the legislature intended to “except ‘legitimate contact’ by certain third parties.”14 Instead, the Court reiterated that 173-B was intended “to preserve and protect the safety of the family unit for all family or household members by entitling victims of domestic violence to immediate and effective police protection and judicial relief.”15 For this reason, the Court concluded that, as written, the statute authorized prosecution of a defendant who knowingly contacted the alleged victim through an attorney, regardless of the purpose for that contact.16

           

Finding no express provision, the Court refused to imply a “legitimate purpose” exception.17 It reasoned “that any contact with the victim, whether legitimate or not, may be perceived by the victim as harassment, intimidation or abuse.”18 For these reasons, the Court held that the statute’s intended policy would best be realized by sheltering the victim from any real or perceived pressures resulting from such third-party contacts. Therefore, the Court declined to differentiate between “legitimate” third-party contact and “non-legitimate” third party contact in the context of a 173-B restraining order.19

           

In so ruling, the Court also rejected the defendant’s argument that imposing criminal penalties for “legitimate” third-party contact, for example by a teacher or a doctor, would lead to absurd results.20 The Court instead focused on whether the defendant “knowingly” contacted the plaintiff via a third party. Contact made to inform the other parent of something, such as the child’s whereabouts or illness, would be barred.21 Accordingly, the Court held that a defendant could be found guilty of violating a protective order, “if the trier of fact finds that the defendant knowingly contacted the unrepresented protected person through his attorney.”22 The purpose of the contact was irrelevant to the Court’s analysis.

           

While the Court urged “prosecutorial discretion” to distinguish between “innocent” third-party contact, as opposed to contact where a third party acts as the defendant’s conduit, this distinction is meaningless.23 “Innocent,” after all, is synonymous with “legitimate.” For example, a doctor phoning the protected parent on behalf of the defendant to inform that parent of a child’s accident, could be considered both “innocent” and “legitimate” contact. But, the Court was clear that a defendant wishing to make “legitimate” third-party contact, through an attorney or otherwise, would need to first petition the court for permission.24 If not, they could be prosecuted for violating the order. Therefore, the Court’s distinction creates confusion for defense attorneys and their clients over what kind of contact may be subject to prosecution.

           

Furthermore, the Court rejected arguments concerning a defendant’s constitutional rights to legitimate third-party contacts.25 In so doing, the Court reasoned that “certain circumstances” warrant curtailing a defendant’s right to contact witnesses.26 The Court did not specify the circumstances in which curtailment would be warranted. However, it did determine that such circumstances exist when a witness is a domestic violence victim who holds a protective order against the defendant.27

 

IV. Implications for Criminal Cases

           

Kidder has changed how some criminal defense attorneys, including those at the New Hampshire Public Defender’s office, prepare cases. They, along with some prosecutors and courts, have broadly construed Kidder as applying not only to civil restraining orders, or violations thereof, but also to no-contact bail orders issued in the criminal context.28 Because a court-ordered no-contact bail order is the criminal equivalent to a civil restraining order, some attorneys presume courts will curtail witness access for defendants accused of domestic violence-related crimes. In this respect also, the Kidder decision has opened the question over third-party attorney contact in criminal domestic assault cases.

           

Without further clarification on whether Kidder applies to criminal assault cases, many criminal defense attorneys have proceeded cautiously to avoid placing their clients at risk of further prosecution. Attorneys placed in the untenable position of not knowing how courts may apply Kidder, are playing it safe. For example, the New Hampshire Public Defender office no longer contacts or interviews alleged victim/witnesses without a court’s permission. Thus, absent a court’s modification of a no-contact bail order, this broad interpretation of Kidder has the effect of restricting a criminal defendant’s right to contact victim/witnesses in criminal domestic violence assault cases.

           

However, a further probing of the Kidder Court’s reasoning suggests that courts may treat criminal domestic assault cases differently than their civil counterparts. When due process liberty interests are at issue, an even stronger case can be made that Kidder likely does not apply.

 

            A. Kidder and Due Process Analysis

           

Had the Kidder Court intended its decision to apply in the criminal context, it would have likely more deeply analyzed the defendant’s due process rights in order to justify curtailing them. In its analysis, however, due process considerations were cursory at best. Even though the Kidder Court relied on a California criminal case, Reid v. Superior Court 29, to support its premise that witness access may be curtailed under “certain circumstances,” the two Courts differed greatly in defining those circumstances. Thus, the Kidder Court’s treatment of due process analysis bolsters the concept that the decision does not apply to criminal assault cases.

           

For example, unlike Kidder, in reaching its decision, the Reid Court specifically analyzed the defendant’s due process rights under the Fourteenth Amendment to the U.S. Constitution, California’s Constitution and its criminal discovery statutes.30 It so doing, it determined that the defendant had a “right to have an opportunity to interview” witnesses if they were willing.31 Additionally, it said that curtailing that right would be “justifiable only under the ‘clearest and most compelling circumstances.’”32 The Kidder opinion had no such analysis or requirement. Thus, unlike Kidder, the Reid Court specifically acknowledged there was a due process right for the opportunity to contact victims/witnesses for an interview.33

           

One likely reason for the two Courts’ different treatments of due process is because the underlying case in Reid was criminal whereas in Kidder it was civil. In Kidder, the Court was asked to determine whether a civil statute prevented an attorney from interviewing a plaintiff about claims made in advance of a final hearing on a domestic violence petition. If the plaintiff prevailed in that hearing, the defendant would be prevented from having any contact with that person for at least one year. That was unlike Reid where the Court was deciding whether a criminal defendant’s attorney could be prevented from contacting witnesses about their willingness to be interviewed in preparation of a criminal case. There, if the state prevailed, the defendant would be facing jail time. Thus, a basic difference between the two cases is that the Court in Kidder was not faced with deciding a question that could affect a defendant’s liberty interest, whereas, in Reid, that was precisely at issue.

           

This would also explain why the two Courts differed in the standards applied for curtailing witness access. For example, in Reid, the Court placed the burden on the state to show why the defense’s access to the witnesses’ contact information should be denied.34 As compared to Kidder, where the defense bore the burden to show why access was warranted.35 Also, in Kidder, witness access could be curtailed once the plaintiff was granted a temporary, ex parte, protective order against the defendant.36 However, in Reid, the Court required more than sexual assault charges. Instead, it required the state to show that a “sufficient danger of harassment, threats or harm to the victims” existed to justify such a prohibition.37 These different standards are defensible because barring witness access in civil cases would not involve liberty interests. Therefore, the fact that Kidder involved civil litigation could explain why the Courts differed in their analysis.

           

Had the Kidder Court considered its decision to broadly apply to the criminal context, it would have had to distinguish its case from prior precedent. For example, the Reid Court’s due process analysis comports with established U.S. Supreme Court criminal due process jurisprudence,38 U.S. Court of Appeals criminal cases,39 and at least one New Hampshire Supreme Court criminal case.40 A deeper due process analysis would be warranted had the Kidder Court intended its decision to apply beyond the civil realm. It is even questionable whether the Kidder decision would hold up were a defendant accused of criminally violating a restraining order. That is because Kidder was explicitly interpreting statutory language as it applied to third-party contact under 173-B.

           

Finally, different due process standards for witness access in civil verses criminal domestic violence cases would be in line with traditional differences in how courts handle these cases. For example, civil and criminal defendants are treated differently regarding issues such as the right to counsel.41 Further, civil and criminal proceedings carry different standards of proof, and different constitutional standards for privileges such as the 5th Amendment right against self-incrimination. Thus, when the Kidder Court concluded that “the defendant’s due process rights…do not confer upon him unfettered access to witnesses, especially when the witness is a victim of domestic violence and holds a protective order against him,”42 it was quite likely referring to civil, and not criminal, defendants. 

           

            B. Playing it Safe


Even if defense attorneys believe that Kidder does not apply to no-contact bail conditions, a recent Manchester District Court case illustrates why they have played it safe.43 In this case, the defendant was charged with a domestic assault where, as a condition of bail, he was ordered to have no contact with the alleged victim. In the course of discovery, the prosecution released to the defense exculpatory statements made by the alleged victim.44 In an attempt to comply with the broadest reading of Kidder, the defense filed a motion with the court for permission to contact the alleged victim to investigate these exculpatory statements. While the defense asked for permission, it did not concede that Kidder applied. Nonetheless, the defense acknowledged that the prosecution may argue otherwise. Thus, the defense felt that it was prudent to seek the court’s permission before contacting the alleged victim.

           

The state objected to the defense motion arguing not that Kidder applied, but that interviewing the alleged victim was unnecessary. It said that the defense could sufficiently prepare its defense through police reports and other discovery documents. The state also argued that the defense would have ample opportunity at trial to cross-examine the witness on the issues raised by these exculpatory remarks. The state thus objected even though the victim was willing to be contacted by the defense. And while the state did not directly address the issues raised by Kidder, that decision clearly supported their position. As without Kidder, the defense would never have had to file such a motion.

           

This motion gave the prosecution an opportunity to oppose witness access. Before Kidder, the defense would have proceeded with discovery without any such hindrance. Now, with a motion for permission, the prosecution could make new discovery arguments – even ones that were not raised by Kidder. And in this case, it created an opportunity for the state to prevent the defense from seeking exculpatory information.

           

After hearing the motion, the court issued the following order related to the contact issue:

“…At oral argument, (defense) counsel did not concede that contact by counsel or an investigator violates the bail order. To the extent that the defendant’s counsel takes the position that the bail order does not cover his conduct or that of his investigator, there is nothing for this court to decide. Counsel may proceed at his own peril.”45

 

While the court did not outright reject the motion, it essentially refused to rule without the defense conceding that Kidder applied. As a result, its order effectively denied the defense permission to contact the alleged victim.46

           

The Manchester District Court’s order did little to clarify the risks and rights post-Kidder. It also ignored the policy put forth in Kidder, to protect victims of domestic abuse. In Kidder, the Court was concerned that third-party contact could further harassment, intimidation or abuse. Kidder was clearly watching out for the victim’s safety. However, in the Manchester case, the prosecution was not concerned with victim’s safety. Instead, it opposed the motion on the grounds that the interview would be unnecessary and redundant. Considering that the alleged victim did not even oppose being contacted, it appears that the policy being furthered in this case was not necessarily to protect her safety.47 Instead, it appears that the policy being promoted was to hobble the defense.

           

Prior to Kidder, an attorney would not normally file a motion before contacting an alleged victim. As the defense in this situation told the Manchester District Court, investigators follow ethical guidelines to ensure that witnesses understand whom the investigators represent and that the witnesses understand they are free to decline to be interviewed. Even without these guidelines, the defense team knows how damaging it would be for an alleged victim to testify on the witness stand that he or she was badgered by the defense. Not to mention that the lawyer could face professional conduct sanctions and/or prosecution for harassment or witness tampering. Kidder now added not only the risk of criminal charges against the client for legitimately motivated and managed representation, but also the risk that legitimate discovery practices would be hampered.

           

While courts outside Manchester may interpret a criminal defendant’s due process rights differently, without further clarification, it could be risky for criminal defense attorneys to assume this. Making that assumption could expose a client to further criminal charges. And, even though Kidder did not directly interpret a criminal defendant’s rights, its reasoning was based on Reid, a criminal case that did just that. Consequently Kidder created precedence for curtailing witness access where domestic abuse is allegedly involved. Thus, absent a court’s permission, criminal defense attorneys run a new risk that innocent contact with a victim/witness will be criminally prosecuted.

 

V. Legislative Action

           

In response to Kidder, the New Hampshire Legislature considered House Bill 468, that would have modified Chapter 173-B.48 The proposed change would allow an attorney to contact a plaintiff under certain conditions. The proposed language would add the following new sections:

            I.  A protective order issued pursuant to RSA 173-B:4 or RSA 173B:5 shall not be construed to prohibit an attorney, or any person acting on the attorney’s behalf, who is representing the defendant in an action brought under this chapter, or in any criminal proceeding concerning the abuse alleged under this chapter, from contacting the plaintiff for a legitimate purpose within the scope of the civil or criminal proceeding; provided, that the attorney or person acting on behalf of the attorney: identifies himself or herself as a representative of the defendant; acknowledges the existence of the protective order and informs the plaintiff that he or she has no obligation to speak; terminates contact with the plaintiff if the plaintiff expresses an unwillingness to talk; ensures that any personal contact with the plaintiff occurs outside of the defendant’s presence, unless the court has modified the protective order to permit such contact; and, if an attorney, acts in accordance with the Rules of Professional Conduct.

II.       Any person who knowingly fails to comply with the requirements of this section when making contact with the plaintiff shall be guilty of a violation of a protective order under RSA 173-B:9.49. 

                

NOTE: The NH House and Senate also passed a similar bill to add this language to NH’s Stalking law, 633:3-a. This bill passed the full House on March 30, 2005. The Senate passed an amended version that struck section II, on June 2, 2005. The bill “died” in a Committee of Conference on June 22, 2005. It will likely be revived next session.

           

If this bill were to pass, it would partially overrule State v. Kidder by amending the statutory framework on which Kidder rests. The proposed bill would allow attorneys to contact plaintiffs for a “legitimate purpose” without having to first get the court’s permission. While the bill likely resolves much of the confusion over whether Kidder applies to no-contact bail conditions, other questions still remain. For example, the proposed language may create new confusion over whether contact not falling under the proposed parameters is allowed, over what constitutes contact for a “legitimate purpose” and whether procedural mandates are being followed.50 It is likely that, even with this proposed “legitimate purpose” exception, the issues raised by Kidder will continue to shape how domestic violence cases are handled.

 

            A. Potential Implications for Criminal Cases

           

This legislative action bolsters the argument that Kidder was never meant to apply to no-contact bail orders. If Kidder did apply, the legislature would likely have addressed the bail order issue. However, in its deliberations and in its drafting, the bail order problem was never raised. That is likely because the legislature considered Kidder only to apply to 173-B. Thus, cautious criminal defense attorneys who presumed that Kidder applied to no-contact bail conditions can use this legislative action to argue that Kidder never applied. 

 

Even if Kidder, by analogy, applied to bail orders, the proposed legislative fix would change that. By proposing a “legitimate purpose” exception, the legislature clearly acknowledged the important role of defense attorneys. Given that the proposed exception would apply to “any criminal proceeding concerning the abuse alleged under this Chapter” (173-B), it follows that attorney contact under an alleged domestic assault would equally qualify. Thus, if this bill passes, criminal defense attorneys can argue that by analogy, this amendment supports their legitimate work as well.

 

However, if the proposed exception were read narrowly, it could potentially exacerbate some of the problems that have arisen in the context of no contact bail orders. Under the proposed language, prosecutors may argue that the attorney exception applies only to criminal and civil charges brought under 173-B and 633:3-a (the stalking statute), and not to contact under no contact bail orders. Read narrowly, a domestic assault not the subject of a protective order, or violation thereof, could be found outside the scope of the bill’s exception.

 

Another problem that could arise under a narrow reading relates to attorneys representing clients for crimes unrelated to the alleged abuse. Take, for example, a situation where the defendant is accused of robbing a convenience store. Say that the defendant’s defense is that he was away with his girlfriend when the robbery occurred. Then, say that in an unrelated incident, that girlfriend is granted a protective order against the defendant. Under the proposed language, an attorney representing the defendant in the robbery case could then be barred from contacting the girlfriend. The proposed exception only allows contact for an attorney “representing the defendant in an action brought under this chapter” (173-B) “or in any criminal proceeding concerning the abuse alleged under this chapter.” It does not mention representation for unrelated crimes. Without further clarification, under this scenario, Kidder could still apply.

 

Defense attorneys confronted with these arguments can use the bill’s legislative history to bolster traditional due process arguments. The House Committee testimony shows that the legislature intended to undo problems raised by Kidder. For example, even victim advocates acknowledged the importance of “legitimate” contact and lauded the bill for striking the right balance between a defendant’s and a victim’s rights.51 Additional testimony stressed the importance of the bill in removing obstacles to an attorney’s obligation to investigate the facts of a case.52 Finally, not one committee member voted against the measure.53 This overwhelming support shows that the legislature understands and appreciates that in order to properly prepare their cases, defense attorneys need to be free to investigate their cases. Therefore, attorneys can argue that this “legitimate purpose” exception is meant not to constrain their work, but to correct the problems created by Kidder.

 

            B. Defining “Legitimate Purpose”

 

The legislature’s failure to define what would constitute contact for a “legitimate purpose” will likely create problems for courts, attorneys and clients. If and when attorneys are faced with these problems, they should argue that the “legitimate purpose” exception should allow for attorneys to adequately prepare cases within existing legal and ethical bounds. Thus, attorneys should encourage courts to use existing rules of professional conduct and criminal law to establish the “contact for a legitimate purpose” parameters. Defining the “legitimate purpose” exception this way, would assist attorneys and courts by using established principles to guide conduct.

 

                        i. Professional Responsibility

 

One measure for courts to use in defining what constitutes “legitimate contact” may be existing standards of professional conduct. For example, New Hampshire’s Professional Conduct Rule 4.1-4.3 specifies how attorneys should deal with people other than clients.54 These rules also ensure that lawyers deal appropriately with unrepresented persons, clearing up confusion about their alliances, being truthful in their representations and refusing to further a defendant’s criminal or fraudulent behavior.55 Balanced against the rules promoting zealous advocacy,56 these conduct rules provide a measure for “legitimate” contact. Therefore, an attorney’s conduct that fails to respect these rules would fall outside the legitimate purpose exception.        

 

                        ii. Existing Criminal Laws

 

Another measure for determining what constitutes contact for a “legitimate purpose” is to use existing criminal statutes such as witness tampering and harassment statutes.57 For example, it can be inferred from Kidder that a non-legitimate purpose would be one in which an attorney contacts a plaintiff to arrange a meeting with the defendant for the purpose of talking that person out of going forward with a restraining order. That was the fear expressed by the plaintiff in Kidder. An equivalent scenario in a criminal domestic assault case would be a situation where a defense attorney contacts a witness to pressure that person into recanting the allegations, or into refusing to testify. Arguably, these are the kinds of scenarios with which the Kidder Court initially concerned itself.

 

Most reasonable people would agree that not only do these scenarios capture the type of contact likely to be considered “non-legitimate,” but also, the conduct likely violates witness tampering and harassment laws. Because violations of these laws carry criminal penalties including imprisonment, the incentive to stay within their bounds is bolstered.

 

            C. Legitimate Problem?

 

One potential problem with the legislature’s proposal is that it may increase litigation over attorney behavior, over whether the contact was made legitimately, over whether contact should be prevented and over whether the statute’s protocol was properly followed. Furthermore, cases scrutinizing an attorney’s actions and motives are likely to be complicated and take up the court’s time. Thus, the ability to argue over what constitutes contact for a “legitimate purpose” likely creates further problems for attorneys and courts.

 

This may be especially true in the criminal context. Unlike a criminal case, in a civil case, unless the order is violated, a plaintiff controls the case. If that plaintiff decides to “drop” the order, regardless of the reason, the court is no longer involved. However, when there are criminal charges, the alleged victim cannot “drop” anything since situation is in the state’s hands. Thus, if an alleged victim recants or refuses to testify, the state will likely try to determine why. Part of that determination could involve investigating whether the defense attorney’s contact with that victim/witness was made for a “legitimate purpose.” If there is any question as to the legitimacy of an attorney’s contact, that attorney’s actions may be put on trial.

 

For example, a prosecutor could argue that a defense attorney’s actions had the effect of placing subtle pressures or signals on a victim to recant. Similarly, they may argue that under certain circumstances, contact should be prevented. Given Kidder, prosecutors could argue that any contact by a defense attorney may be perceived as furthering the alleged abuser’s intimidation, threats or abuse.58 Similarly, attorneys may argue over whether the statute’s stated protocols were properly followed. Thus, without a “legitimate purpose” definition, litigation over attorney behavior will ensue.

 

VI. No Turning Back

 

Looking back, none of these questions would have been raised had the legislature passed in 2001, HB 508.59 This bill would have created the following exception to 173-B:

“Notwithstanding any other provision of the law, an order prohibiting the defendant from contacting the plaintiff through a third party shall not prevent the defendant’s attorney from contacting a plaintiff’s attorney or a pro se plaintiff”

 

Ironically, the legislature did not adopt this bill because it found “no evidence that any attorney had been prohibited from contacting a plaintiff or plaintiff’s attorney as a proper and necessary part of the defense.”60  Had this provision been adopted, defining contact for a “legitimate purpose” would be unnecessary. Unless the legislature specifies that contact for a “legitimate purpose” includes proper case preparation, these issues will remain open for courts to decide. These uncertainties threaten to place continued strain a defendant’s due process rights.

 

VII. Proposed Approach for Criminal Cases

 

In achieving a proper balance between victim safety and defendant rights in the criminal realm, the courts and legislature may want to consider a similar approach to the one taken in Reid.61 The Court there required that the state prove by the “clearest and most compelling circumstances” that “sufficient danger of harassment, threats or harm” existed in order to “justify a prohibition against the defense directly contacting the victims.”62 This approach properly preserves a criminal defendant’s due process rights while providing a mechanism by which an alleged victim can be protected from further threats, intimidation or abuse.

 

VII. Conclusion

 

Even though Kidder will likely be “overruled” for all intents and purposes, its influence on how domestic violence cases are handled by courts remains. As courts define the parameters of the proposed legislative fix, underlying concerns articulated in Kidder will likely continue to play a role in future litigation. Most prominently, the Court’s concern with a domestic violence victim’s vulnerabilities63 will shape future debates. As may the Kidder Court’s willingness to deny a defendant’s access to witnesses under “certain circumstances.”64 Therefore, even if the proposed legislation were to pass, these policy concerns will continue to dominate legal debates.

 

Finally, what Kidder and the ensuing legislative response have illustrated are the tensions created between victim and defendant rights in domestic violence cases. As the courts and the legislature proceed, great care should be taken to protect the rights of all parties. While most of us share the overall goal of ridding our society of violence in the home, we also share the goal of upholding the essential ideals of liberty expressed in our state and federal constitutions.

 

Endnotes

1.         State v. Kidder, 150 N.H. 600, 843 A.2d 312 (2004).

2.         HB 468 was introduced in the New Hampshire House of Representatives during the 2005 Legislative Session to remedy what some see as problems created by Kidder. This legislation, which was widely expected to pass, passed in different forms in both the House and Senate. It subsequently died in a Conference Committee. It will likely be considered again in the 2005-06 legislative session.

3.         Kidder, 150 A.2d at 315.

4.         Id. at 315, 316 (interpreting the following statutory language: “contact,” defined in NH RSA 173-B:1, IV (2002), as “any action to communicate with another either directly or indirectly, including, but not limited to, using any form of electronic communication, leaving items, or causing another to communicate in such fashion,”; “knowingly” as defined in NH RSA 626:2 II(b) (1996), as, “a person acts knowingly with respect to conduct or to a circumstance that is a material element of an offense when he is aware that his conduct is of such nature or that such circumstances exist.”

5.         Even though the plaintiff in this case was not represented by counsel, the Court did not limit its decision to cover only contact between a defense attorney and an unrepresented plaintiff, which means that contact with a plaintiff’s attorney could be considered within the scope of the no-contact provision.

6.         Kidder, 150 A.2d at 314.

7.         Id.

8.         Id.

9.         Id.

10.        Id.

11.        Id.

12.        Id.

13.        Id. at 315.

14.        Id.

15.        Id. at 316 (citing to N.H.H.R. Jour. 648-49).

16.        Id. at 315.

17.        Id.

18.        Id. at 316.

19.        Id.

20.       Id. at 315 (rejecting the argument that prohibiting third party contact would “lead to an absurd result” by “imposing criminal penalties on a defendant for the legitimate actions of a third party such as a teacher or a doctor.”).

21.        Id.

22.        Id.

23.        Id. at 315-16.

24.        Id. at 317.

25.        Id.

26.        Id. (citing Reid v. Superior Court, 55 Cal.App.4th 1326, 64 Cal.Rptr.2d 714, 718 (1997)).

27.        Id. (citing Reid, 64 Cal.Rptr.2d at 720).

28.        It is standard practice for courts to issue as a condition of bail an order preventing the alleged abuser from having any contact with the alleged victim/witness.

29.        Reid v. Superior Court, 55 Cal.App.4th 1326 (1997).

30.        Id. at 1332-33 (citing to that state’s relevant criminal statutes that require that the prosecution show good cause before withholding witnesses names and addresses from the defense. Those statutes, §1054-1054.7, define “good cause” for denying, restricting or deferring evidence disclosure to the defense as “limited to threats or possible danger to the safety of a victim or witness, possible loss or destruction of evidence, or possible compromise of other investigations by law enforcement”).

31.        Id. at 1332.

32.        Id. at 1332-33.

33.        Id.

34.        Id. at 1334.

35.        Kidder, 843 A.2d at 317.

36.        Id.

37.        Reid, 55 CalApp. 4th at 1334.

38.       E.g. Washington v. Texas, 388 U.S. 14 (1967) (holding that 6th Amendment to the U.S. Constitution requiring compulsory process for obtaining witnesses in a defendant’s favor is applicable to the states via the 14th Amendment).

39.       E.g. Kines v. Butterworth, 669 F.2d 6 (1981) (holding that a defendant has a right to interview witnesses and that the state can not interfere without justification); U.S. v. Scott, 518 F.2d 261 (1975) (holding that a defendant has the right to access any prospective witness); Gregory v. U.S., 369 F.2d 185 (1966) (holding that witnesses are not the property of the prosecution or defense and that each side shall have an equal opportunity to interview them).

40.       State v. Cromlish, 146 N.H. 277 (2001) (holding that a defendant’s right to seek out and present witnesses is a fundamental due process right that can be waived by that defendant.)

41.       Compare Goldberg v. Kelly, 397 U.S. 254, 270 (1970) (expressing that due process requires a plaintiff be allowed to retain counsel, but not requiring court appointed counsel with, Scott v. Illinois, 440 U.S. 367 (1979) (requiring court appointed counsel for indigent clients facing actual imprisonment).

42.        Kidder, 843 A.2d at 317.

43.        I am not using names, docket numbers or other identifying information in order to respect the party’s privacy.

44.        In these statements, the alleged victim said that the defendant had never been physically abusive, that the whole thing was just a misunderstanding, that she had been arguing with another female patron in the bar, and that the defendant had only grabbed her by the shoulder in an attempt to “move her along.”

45.        This is an excerpt from the court’s order.

46.        Was the court denying or daring? It should also be mentioned that the court’s order also required that the state hand over the victim advocate’s interview notes which contained the exculpatory statements. The court said it would review both redacted and non-redacted versions first before and handing over the redacted version for the defense to examine. The thrust being that the court would ensure that no other exculpatory information was being denied the defense.

47.        The Manchester District Court order did not mention the victim’s safety as a reason for its effective denial of the defense’s motion.

48.        HB 468 was introduced in the New Hampshire House of Representatives during the 2005 Legislative Session to remedy what some see as problematic about Kidder. The bill, amended by the Senate, failed when a House-Senate conference committee could not reconcile the differing versions.

49.        This section was in the House version of the bill but was not in the Senate version. The two different versions passed their respective bodies and the bill subsequently failed in a Committee of Conference. The bill will likely be reconsidered in the upcoming 2005-06 legislative session. If this penalty section were to remain in the bill, a person found in violation will be charged with a class A misdemeanor subject to up to one year in jail. Proponents say it would give the bill “teeth.”

50.        The bill would establish procedural “rules of engagement” that, if not followed, may result in criminal consequences for attorneys. This could present problems for family law attorneys in coordinating divorce agreements, child custody, etc. These potential problems are outside of the scope of this paper.

51.             February 22, 2005 House Criminal Justice and Public Safety Committee hearing on HB 468, on file at Committee Office, LOB, Concord, NH.

52.        Id.

53.        Id.

54.        N.H. Rules of Prof. Conduct, 4.1-4.3 (2005).

55.        Id. at 1.2(d), 4.1-4.3.

56.       Id. at 1.3 (explaining in comments that a lawyer should act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client’s behalf.) 

57.       NH RSA § 641:5 (2004) (Tampering With Witnesses and Informants); NH RSA § 644:4 (2004) (Harassment).

58.        See Kidder, 843 A.2d at 361.

59.        Reference in the 2005 House Criminal Justice and Public Safety Committee history on HB 468, on file at Committee Office, LOB, Concord, NH.

60.        Id.

61.        Reid, 55 Cal. App. 4th at 1326.

62.        Id. at 1335.

63.        See Kidder, 843 A.2d at 316 (concerning a victim’s perceptions over what may be considered as harassing, intimidating or threatening behavior).

64.        Id. at 317.

Mary KreugerMary Krueger is a third-year student at Pierce Law Center, Concord, New Hampshire.

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