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Top NH Court Says Trial Judge Abused Discretion by Banning Telephone Testimony

Posted Feb 25, 2011 5:30 PM CDT
By Martha Neil

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In another step toward a world in which parties, potentially, will routinely be allowed to testify in court despite the fact that they are not physically present, the New Hampshire Supreme Court today held that a trial court judge abused his discretion by refusing to consider allowing a party in a domestic violence matter to testify over the telephone.

While the judge apparently could have refused to admit the testimony had he had good reason to nix it, refusing even to consider admitting the testimony was "untenable and unreasonable," the court explains in its written opinion (PDF).

"I’m not going to allow it. I do not allow telephonic testimony. Never have, never will," the trial court judge said, according to a transcript of the domestic hearing. Instead, he should have considered factors such as the defendant's ability to travel to New Hampshire to testify and whether a better alternative, such as videoconferencing, was available, the opinion explains.

"The record in this case does not establish an objective basis sufficient to sustain the discretionary judgment made by the trial court because the court failed to consider any factors relevant to the respondent's request to testify telephonically," the opinion concludes.

It notes that the supreme court assumes, without deciding the issue, that telephone testimony is admissible, because the parties to the appeal did not raise this issue.

Hat tip: Associated Press.

Related earlier coverage:

ABAJournal.com: "Judge Nixes Motion to Compel Witness in Drug Case, But OKs Unusual Alternative: Skype"

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