Citing concerns about the safety of victims of domestic and sexual violence, the New Hampshire Superior Court system says it will no longer automatically stream their testimony from courtrooms.
Since jury trials resumed in the state in August following a months-long pause due to the coronavirus, members of the public have been able to watch proceedings through video links.
Advocates for survivors of domestic and sexual violence say this has created potentially unsafe situations when victims are called to testify. Criminal defense attorneys, however, say the rule change will limit public access to proceedings and may be unconstitutional.
The change, which went into effect in some courts this week, means a courtroom livestream will now be shut off during victims’ testimony, unless they give their consent. To ensure public access, courthouses will reserve a limited number of seats for those members of the public who wish to observe the proceedings.
The court says it worked with prosecutors, defense attorneys and the N.H. Coalition Against Domestic and Sexual Violence to alter its process.
“In this regard, we appreciate the concerns raised by victims’ rights advocates,” said Tina Nadeau, chief justice of the Superior Courts, in a statement.
“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.”
But the decision to curtail the livestream during victims' testimony is opposed by the state's Association of Criminal Defense Lawyers. The group says it wasn't consulted by the judicial branch, and that it has serious concerns about the decision.
"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 association says. "The limited capacity public access afforded by this policy does not constitute a public trial."
The NHACDL says the rule change gives the "accuser the power to decide how and how much of a public trial a defendant will be afforded" and that it may violate a defendant's constitutional rights. The group says it will make further recommendations.
The N.H. Coalition Against Domestic and Sexual Violence advocated for the rule change, citing at least one criminal case where an alleged victim of assault chose not to testify over concerns about their testimony being livestreamed.
"We’re pleased that the courts changed course, and we look forward to future conversations about how best to uphold the privacy rights of victims in the legal process,” said Lyn Schollett, the coalition's executive director.
(Editor's note: this story has been updated with additional information.)