By NANCY WEST, InDepthNH.org
CONCORD – Criminal defense lawyers are pushing back against Superior Court Chief Justice Tina Nadeau’s decision to allow alleged crime victims to decide how much of their trial can be live streamed saying they weren’t party to the decision and the change would violate the defendants’ Constitutional right to a public trial.
On July 14, the New Hampshire Supreme Court authorized the resumption of jury trials trying to balance health and safety concerns created by the COVID-19 pandemic. Jury trials have been live streamed, but recent concerns raised by prosecutors and victim advocates prompted Nadeau to rethink live streaming.
Under the change, alleged victims have the option of having the video turned off during their testimony. If the alleged victim does not object to livestreaming, the court will permit individuals who have requested access to watch the proceedings by video, according to news release issued by Nadeau Wednesday morning.
“Courts may continue to livestream other court proceedings that do not involve victim testimony when the trial judge deems it appropriate,” the release stated.
Nadeau said: “The Judicial Branch has worked during these unprecedented times of the COVID-19 pandemic to develop a plan that allows us to resume criminal jury trials in a safe manner while making sure we provide constitutionally sufficient public access to our courts….
“In this regard, we appreciate the concerns raised by victims’ rights advocates. We have determined this revised policy would better ensure an appropriate balance between the defendant’s and public’s right to observe jury trials during the COVID-19 pandemic and victims’ rights to prevent their identity from being spread across the Internet.”
Court staff has worked with prosecutors, members of the NH Coalition Against Domestic & Sexual Violence, and the defense bar, to revise the jury plan template to prevent the testimony of victims from being broadcast by the court over the Internet without their consent, the release stated. “In those cases, the court will reserve a number of spaces in the courtroom for public access,” the Superior Court said in the news release.
But in a news release Wednesday afternoon, the New Hampshire Association of Criminal Defense Lawyers said they were not party to the decision and were, in fact, notified after the policy was adopted and already running in Belknap County.
“Especially concerning is that despite the presumption of innocence, the Court’s policy gives the accuser the power to decide how and how much of a public trial a defendant will be afforded. This violates defendants’ constitutional right to a public trial, which is guaranteed by the Sixth Amendment to the United States Constitution,” the NHACDL release stated.
NHACDL said it is working to propose changes and will file with the state Supreme Court if necessary for relief.
The nonprofit New Hampshire Center for Public Interest Journalism, which publishes InDepthNH.org, made known its objection to the Court and is also considering taking legal action to overturn the new policy.
As soon as NHACDL learned that there were calls to limit public access to criminal trials the group contacted the court to share their concerns and was assured they would be involved in the process, the NHACDL release stated.
“Yesterday afternoon we were told of the new policy and that it was already being used in Belknap County.
“COVID has caused an unprecedented pulling back of defendants’ rights. As we continue to rework how criminal trials are held in these times, it is unacceptable to limit to this extent the ability of the public to see what is happening in the courtroom. The limited capacity public access afforded by this policy does not constitute a public trial,” the release stated.