On April 18, 2014, the New Hampshire Supreme Court issued a slip opinion in the matter of In Re: GG. This was a Child Protection Act, RSA Chapter 169-C, case to determine whether GG was abused and neglected by her father. The state introduced a video recording of GG as evidence of abuse. The father sought to subpoena GG to provide live testimony at the proceedings. The superior court denied the father's request of the child's testimony. The issue before the New Hampshire Supreme Court was whether the father had a right to compel the testimony of the child.
The New Hampshire Supreme Court decided that the testimony of a child victim was at the discretion of the judge. There is no statutory or otherwise right to compel the child's testimony. However, the Court presented a non-exhaustive list of factors that the trial court may consider when making the decision.
The Court stated:
[W]e encourage trial courts to consider:(1) the child’s age;
(2) the specific potential harm to the child from testifying;
(3) the indicia of reliability surrounding any admitted out- of-court statements describing the child’s allegations;
(4) evidence that may lend credibility to the allegations of abuse or neglect, such as consistency of the child’s and responding parent’s accounts, or evidence of prior injury;
(5) the incremental probative value of the child’s potential in-court testimony; and
(6) whether there are alternatives to in-court testimony that would enable meaningful examination of the child without jeopardizing the child’s well-being.
In Re: GG , No. 2012-873, slip op. at 5, (N.H. April 18, 2014).
Reliable, credible, and probative value are essential elements of evidence presented in any legal matter. If there is alternative evidence that is reliable and credible then the harm to the child may outweigh the need for direct testimony from the child. Essentially, in abuse and neglect cases, the trial court must balance the respondent’s/parent's interest in offering the child's testimony against the harm to the child. In Associate Justice Robert J. Lynn's special concurrence he offered possible ways to mitigate the harm to the testifying child.
Among the actions the trial court may take to ameliorate the impact on the child of being required to testify are the following:(1) prohibiting overly aggressive or overtly hostile questioning by respondent’s counsel;
(2) allowing the child’s guardian (or, in appropriate circumstances, a non-accused parent) to be close to or to stand by the child while testifying;
(3) ordering that the examination take place in the more informal setting of the judge’s chambers rather than in the courtroom;
(4) limiting the persons permitted to be present during the child’s testimony, including, if the circumstances warrant, precluding the respondent from being present during the time the child testifies; and
(5) having the parties submit written questions, which the judge can then ask the child in chambers with a record but without the parties present, after which the judge shares the child’s answers with the parties.
In Re: GG , No. 2012-873, slip op. at 7, fn. 2, (N.H. April 18, 2014).
Two of these are alternatives to open court testimony, testimony in the judge's chambers and written questions asked by the judge to the child. These are examples of the Court's factor six above, "alternative to in-court testimony". Abuse and neglect cases are civil proceedings. Moreover, abuse and neglect allegations can also have criminal implications with criminal charges against parents/abusers. Thus, for the same conduct there is a civil matter to protect the child from future abuse and neglect, and a criminal matter to punish the offender. In criminal proceedings, the child's relevant and material testimony occurs through live testimony. Another possible alternative as the Court noted was to allow the child's criminal trial testimony be offered into evidence in the abuse and neglect case, so the child only testifies one time.
Testimony by a child that has suffered alleged abuse or neglect is very sensitive. The best possible options will not alleviate the emotional impact of giving such testimony. A judge making the difficult decision of whether to grant or deny a respondent’s/parent's request for child testimony in civil abuse and neglect cases must balance the interests of the parents against the harm to child. The New Hampshire Supreme Court’s guidance will help make these difficult decisions in the future.