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Watching a court hearing on Zoom? The N.H. judicial branch says you need permission to record.

photo of NH Supreme Court
Todd Bookman/NHPR
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New Hampshire Supreme Court

The state judicial system is updating its rules for recording legal proceedings to include live streaming options, like Zoom, a move made in response to the increase in remote access to courtrooms during the pandemic.

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According to an order released Tuesday by the clerk of the New Hampshire Supreme Court, the rules for audio and video recording inside of courtrooms now also “apply whether the proceeding is live or being broadcast via an electronic platform, including but not limited to WebEx, Zoom, Teams, or any other electronic platform.”

During the pandemic, the judicial branch has made live streams available for numerous high-profile criminal and civil cases, allowing the public, along with journalists, to listen or watch live courtroom proceedings from anywhere.

The order reflects an ongoing balance courts are trying to find between open, unfettered access to court proceedings, and what the order describes as the need for constituents to conduct legal business “without fear of intimidation, annoyance, or embarrassment.”

Under a set of rules issued in 2004, anyone seeking to record or take photographs from inside of a courtroom needs the permission of the presiding judge before doing so. The new order clarifies that the need for permission now extends to live streams of proceedings.

In high-profile cases in New Hampshire, media will often be pooled, meaning a single camera or photographer will be allowed to capture the proceedings, and share those images or videos with all other members of the press.

The New Hampshire Supreme Court offers a live stream of all non-confidential oral arguments on its homepage. According to the judicial branch, members of the public do not need prior permission to record those proceedings.

In practice, recording rules inside of New Hampshire courtrooms have been unevenly applied. Reporters, including reporters for NHPR, have been asked at certain courthouses to fill out a form requesting permission to record; at other hearings, microphones and cameras have been brought into the courtroom in view of the judge with no permission requested.

Filming or recording are also prohibited in the lobby or other public areas inside of courthouses without a judge’s permission.

In addition to the new rules for recording live streams in New Hampshire, the court also clarified that the rules that govern when police may use body cameras apply inside of courthouses.

The language was included, according to a court spokesperson, to recognize that “body cam equipment can automatically operate when responding to an incident.”

Federal courts, including the district court in Concord, maintain a strict prohibition on any recording and don’t allow members of the public to bring a cell phone into the building.

The pandemic prompted the Supreme Court of the United States to make a live audio feed available for the first time in the court’s history. The audio stream has been so popular, the court has continued to provide it to the public during its new term.

In October 2020, the state judicial branch issued an order in response to concerns from victims of sexual and domestic violence about testifying while being live-streamed. Under the new rule, victims could request the live stream be shut off during their testimony, while those present in the courtroom would still be able to observe the proceedings.