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Bar News - March 22, 2013

Use of Video Hearings in NH Courts Poised to Expand


New video equipment was installed at the Circuit Court in Concord last month and can be moved to different courtrooms, providing increased flexibility in scheduling.
Within the past few weeks, the New Hampshire court system reached its goal of equipping every courthouse in the state with the ability to conduct video hearings.

"I believe all of the counties are now online, with the exception of Hillsborough County," Circuit Court Administrative Judge Edwin Kelly said. "There are roughly 700 video arraignments per month right now, and that number will increase, obviously, as we’re able to get Hillsborough County up and running."

Designed to increase efficiency and security while reducing transportation costs for county sheriff’s departments, video arraignments have been occurring in New Hampshire for about 15 years. Recently, the use of courtroom video technology has expanded to some small claims and family law cases in which one party is incarcerated. In a few cases, analysts at the state forensics lab have testified in criminal trials via video.

Judge Gerard Boyle of the 6th Circuit Court – District Division in Concord has been presiding over arraignments conducted via video feed for more than eight years. During a recent arraignment session, Gerard seemed to be consciously projecting his voice so that it would be picked up by the audio system, but he said later that his courtroom voice is always loud. Boyle said there’s no doubt video arraignments are both safer and more efficient than live hearings. He added that he believes video arraignments and bail hearings have very little impact on his perception of defendants’ character and demeanor.

Instead of being mounted on the wall, the new video equipment installed at the district division court in Concord last month is on a cart that can be moved to different courtrooms as needed. That mobility has the potential to ease some scheduling issues, according to Clerk Diane Lane. "Right now, we’re beginning to adapt our whole docket to the flexibility of the new video equipment," Lane said. "It’s definitely a great improvement over what we used to have."

Judge Kelly said he foresees an increase in the use of video equipment for trial testimony by state forensic lab analysts and incarcerated witnesses, as well as in other civil cases where all the parties agree to its use.

The NH Supreme Court has yet to address whether allowing a witness to testify via video violates a defendant’s 6th amendment right to confront and cross-examine. In 1997, the NH Supreme Court decided the case of LaRose v. Superintendent, Hillsborough County Correction Administration, in which three criminal defendants argued that video arraignment violated their right to be "taken before the court" in a timely fashion – an argument the court rejected. The case also raised the confrontation issue, but because the defense never sought to challenge the prosecution’s proffer, the court did not address it.

"There certainly is an argument that one might make that confronting a witness by video is not the same as doing it in person," Kelly said.

For the NH Public Defender, the most significant challenge posed by video arraignments has been having enough time to speak with a defendant and receive the complaints from the prosecutor before the televisions are switched on, virtually placing the defendant before the judge.

"Time is sort of the problem, or has been in the past," said Randy Hawkes, executive director of the NHPD. "Time works against the defense being satisfied prior to the hearing."

Historically, when questions arose about the efficacy of a video hearing, a live hearing could be held later, said Hawkes.

"Any time I was involved in a video bail hearing where bail was denied for an incarcerated defendant, if I filed a motion for reconsideration, because they were particularly compelling facts, the courts always accommodated me and scheduled a live hearing," he said.

Now, the defense and prosecution are typically able to reach an agreement on bail prior to a hearing, making testimony by the defendant’s relatives or employers at a live hearing unnecessary, Hawkes said.

For ethical reasons, the Public Defender earlier in the current biennium declined an offer by the state to pay for new video equipment in its offices. But the indigent defense organization recently expanded the use of its own technology to improve client communications. Software called WebEx, with dedicated phone lines and closed-circuit television, enables private meetings with clients housed in state prison or county jail, saving attorneys from having to drive to the far reaches of rural counties to meet with them.

New Hampshire judicial officials hope the new video equipment and connectivity will benefit all members of the New Hampshire Bar, Judge Kelly said. Attorneys and law offices with compatible equipment can appear via video feed for non-evidentiary hearings in distant courts, he said. Attorneys can also arrange to appear for a hearing in one court using the video equipment in a courthouse that is more convenient to them. "We are pretty excited about it and looking forward to utilizing it as much as we can," Kelly said.

For more information about obtaining video equipment that is compatible with the courts, contact the Administrative Office of the Courts.

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