Today's Opinion From The NH Supreme Court

            Today the Court ruled that a child victim of abuse is not required to testify at the related 169-C abuse and neglect hearing.   Today’s case arose from the appeal of the father/defendant, who claimed that he had a statutory right to subpoena his child, the victim in the case, to testify at the adjudicatory hearing and to have the ability to cross examine her.  The child was 11 years old.  

The Court disagreed with the father/defendant.  The Court analyzed the relevant statutes, as well as the overall purpose of the Child Protection Act, which is to “provide protection to children whose life, health or welfare is endangered.”  RSA 169-C, I(a).  The Court determined that the statutes provide the trial courts with “discretion in abuse and neglect proceedings to determine whether any witness, including the child, should be compelled to testify.”  In re G.G., slip. op. 2012-873 (April18, 2014). 

The Court also went on to provide guidance for trial courts when they need to decide whether to compel the child victim to testify.  The Court wrote: “In those circumstances, we 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.”  Id.  The Opinion stresses that these factors are “non-exhaustive,” ensuring that the trial courts are not overly constrained in using their best judgment in each unique case to decide whether to compel a child victim to testify.

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