Summarized by Sarah E. Lavoie

Criminal Law

No. 2016-0535
No. 2016-0535
October 4, 2017
Vacated and Remanded

  • Addressing whether the enumerated factors for addressing the necessity for a deposition is the same under RSA 517:13, II(a) and (b).

The defendants were each charged with two counts of first-degree and second-degree murder in the deaths of two women in 1988. Defendant Barnaby was brought to trial three times with each trial ending in mistrial due to a hung jury. Eventually the state entered a nolle prosequi against both defendants. The murder investigations were reopened in 2010 and the defendants were indicted by a grand jury.  Under RSA 517:13, the State moved to take video depositions of 11 Canadian residents claiming that they were material witnesses who could not be compelled to testify at trial, making their depositions necessary to preserve testimony and ensure a fair trial.

The trial court held that the sole fact that the witnesses were not subject to subpoena by New Hampshire courts did not demonstrate necessity and instead, the court relied on RSA 517:13, II(a) in ruling that the State must prove that it is unlikely that a witness will be available for trial due to absence from the jurisdiction or reluctance to cooperate.

The trial court found that the State met its burden of proving the necessity of only one witness in each case. The trial court denied the State’s motion for reconsideration on the burden of proof issue under 517:13, II(a) and considered the need for any additional depositions under 517:13, II(b).  The court then reconsidered its decision for each witness pursuant to subsections (a) and (b) and considering the state’s newly filed affidavit and ruled that only two witness depositions were necessary in Barnaby’s case and that none were necessary in Caplin’s case.

On appeal, the State argued that the wrong standard was applied by the trial court in determining whether the State met its burden under RSA 517:13, II(a). The standard of review on appeal was disputed, but the Court agreed with the State that the case should be reviewed de novo because the question on appeal was the statutory interpretation of RSA 517:13, II(a).

The Court addressed whether the statutory factors enumerated in RSA 517:13, II(b) for determining the necessity of a deposition also apply to the necessity determination under RSA 517:13, II (a). The Court held that given that the necessity requirement in RSA 517:13, II applies to a request for deposition under both subsection (a) and (b), that the statutory factors for determining necessity are also applicable to both subsections. The Court noted that its interpretation was consistent with NH Rule of Criminal Procedure 13 and that when determining necessity for a deposition under either subsection (a) or (b), the court shall consider the complexity of the issues involved, other opportunities or information available to discover the information sought by the deposition, and any other special or exceptional circumstances which may exist.
Under subsection (a), there are three alternatives that allow for a deposition to preserve the testimony of a witness who is unlikely to be available for trial: illness, absence from the jurisdiction or reluctance to cooperate. Only one of the three must be shown. Additionally, a party seeking a deposition under RSA 517:13, II(a) need not prove that the witness is, in fact, unavailable for trial.

The Court stated that the unavailability of the witness for trial must be because of the illness, absence from the jurisdiction or reluctance to cooperate and not simply that the witness is ill, absent from the jurisdiction or reluctant to cooperate. The Court then vacated the trial court’s decision and remanded for reconsideration of whether the State met its burden under the Court’s interpretation of RSA 517:13, II(a) in this case.

Mark Sisti (on the brief and orally) and Wade Harwood (on the brief) of Sisti Law Offices, Chichester, for Anthony Barnaby.  David Rothstein, deputy director public defender, Concord, for David Caplin.  Joseph A. Foster, attorney general (Sean R. Locke, assistant attorney general on the brief and orally) for the state.