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Bar News - November 17, 2006

President’s Perspective: Enhancing the Fairness of Criminal Trials by Enhancing Lawyers’ Access to Courthouses


As described in the Oct. 20, 2006 issue of the Bar News, the Bar, with the help of Justice Richard E. Galway of the NH Supreme Court, and the support of Chief Justice Robert J. Lynn of the Superior Court, has been working with Hillsborough County Sheriff James Hardy to create a pilot program, starting Jan. 1, 2007, to expedite the access of lawyers to courthouses through an alternative screening procedure.

Lawyers in many other states, including Rhode Island and Massachusetts, already enter their state courts without searches. The Bar is collaborating with court and county officials to implement a successful pilot program that can be expanded to all of the counties.


A few lawyers have expressed concern to me that the program will create a public perception that lawyers are being treated differently than the general public, which will result in complaints that lawyers are unfairly being given special privileges. While this is a risk, I believe that it is a concern that we can and should deal with by providing information.


The need for reform is obvious. Many lawyers, particularly in the larger counties, have expressed concerns about the security lines at the courthouses. Their primary concern is that police officers and prosecutors simply walk into the courthouse, completely bypassing the security checkpoint. This means that, in many cases, criminal defense lawyers stand in security lines along with potential jurors, who watch prosecutors and police officers enter the courthouse without being searched. This, in turn, creates a not-so-subtle perception that the prosecutors and police officers are more trustworthy, and therefore more credible, than defense attorneys. This perception could have a serious effect on the fairness of criminal trials. Compromising the fairness of trials is not acceptable.


There are only two alternatives. One would be to require police officers, prosecutors, and court personnel to go through security. The other would be to let the Sheriff’s Department use its judgment and perform the very difficult task of ensuring security by not searching those individuals who are demonstrably less of a risk to court security.


The procedure being developed by the Sheriff’s Department in conjunction with the Bar and the court is that lawyers who wish to bypass the standard security procedure must go to the Sheriff’s Department where they will be given a list of prohibited items. Bar members will sign a document agreeing to comply with the Sheriff’s Department’s rules and will still be subject to search at the unlimited discretion of any officer. But, having agreed not bring prohibited items into court, when the lawyers present their NH Bar ID cards, their representation will be accepted. Of course, as in other areas, making a false representation would result in serious professional consequences for the attorney.


This proposed procedure will enhance security in the courthouse. It will allow deputy sheriffs and bailiffs to take more time searching higher risk individuals. Moreover, it will provide significant advantages to the public. On a busy day, when a large number of potential jurors are called for jury selection, the security screening lines can be quite lengthy. By eliminating attorneys from those lines, the lines will be shortened, and non-lawyers will be able to enter the courthouse more quickly.


Some members of the public may well express outrage at the supposed unfairness of the procedure, and complain that lawyers are being given undeserved privileges. But this is nothing new. One hundred years ago, Roscoe Pound wrote in “The Causes of the Popular Dissatisfaction with the Administration of Justice” that “dissatisfaction with the administration of justice is as old as law,” and that “discontent has an ancient and unbroken pedigree.” While many of the concerns Pound raised in 1906 have been addressed, new concerns always seem to arise, and the public in 2006 remains skeptical of both lawyers and judges.


It is true that under this proposal the public may perceive that lawyers are being treated differently from non-lawyers. But the reasons lawyers are being treated differently are:

  • to enhance security;
  • to make the job of the deputy sheriffs less difficult, and
  • to make the wait time of the public shorter.


I think that we as a Bar should be able to articulate this message.


We as a profession have never been well-loved, nor will we ever be. We deal in conflict, and in a system in which there are winners and losers. However, our profession always has and always must strive to do the right, even if not the popular, thing.


I believe that this proposal will enhance security at the courthouse, enhance the fairness of the jury process, and benefit the public by making access to the courthouse more convenient. It is the right thing to do. These goals are worth the effort of explaining the Bar’s security proposal to the public, if that becomes necessary.


Richard B. McNamara is the 2006-7 president of the New Hampshire Bar Association. He practices in Manchester at the law firm of Wiggin & Nourie. Contact him at



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