Bar News - April 19, 2017
Court News: Rule-Change Proposal Would Amend In Camera Review in Criminal Cases
By: Kristen Senz
A proposed amendment to the New Hampshire Rules of Criminal Procedure could change the process trial courts use for in camera review of confidential records.
A proposal that Chief Appellate NH Defender Chris Johnson submitted to the NH Supreme Court Advisory Committee on Rules late last year would involve defense counsel in a proposed new phase of the process. That suggestion, however, has turned out to be a point of disagreement among members of the committee and a subcommittee that was formed to review the proposal.
Johnson’s initial proposal involved the court performing an initial in camera review of evidence, to screen out irrelevant information. Counsel would participate in a subsequent phase to litigate whether the information deemed relevant by the court met the higher standard of “essential and reasonably necessary” for admission at trial.
The issue of participation by counsel turns on whether the benefits to the court’s analysis of whether the confidential evidence is “essential and reasonably necessary” outweigh the risk of additional privacy invasion and creating a situation in which defense counsel is privy to information that cannot be shared with his or her client.
Although the majority of the subcommittee formed to review Johnson’s proposal, which consisted of Johnson, Judge Michael Garner, Judge N. William Delker and attorneys Geoff Ward and Helen Honorow, felt the benefits did not outweigh the risks, the proposal remains under review. The subcommittee further proposed that codifying and clarifying current doctrine through the adoption of a rule would be beneficial for the practice.
To view the full text of the proposed rule, please visit the rules advisory committee page on the NH Judicial Branch website. The committee will discuss the proposal again at its June 16 meeting.