Rule 16 - Videotape Trial Testimony (a) The State may move to take videotape trial testimony of any witness, including the victim, who was sixteen years of age or under at the time of the alleged offense. Any victim or other witness who was sixteen years of age or under at the time of the offense may also move to take videotape trial testimony. The court shall order videotape trial testimony if it finds by a preponderance of the evidence that: (1) The child will suffer emotional or mental strain if required to testify in open court; or (2) Further delay will impair the child's ability to recall and relate the facts of the alleged offense. (b) Videotape trial testimony taken pursuant to this rule shall be conducted before the judge at such a place as ordered by the court in the presence of the prosecutors, the defendant and counsel, and such other persons as the court allows. Examination and cross-examination of the child shall proceed in the same manner as permitted at trial. Such testimony shall be admissible into evidence at trial in lieu of any other testimony by the child. (c) Unless otherwise ordered by the court for good cause shown, no victim or witness whose testimony is taken pursuant to this section shall be required to appear or testify at trial. (d) The attorney general or a county attorney conducting the prosecution in a criminal case may take the deposition of any witness the prosecution intends to call at the trial, if it is determined by a justice of the superior court that: (1) The defendant in the case in which the deposition is sought has been arrested or bound over to the grand jury or has been indicted, and (2) There is reason to believe the life or safety of the witness is endangered because of the witness's willingness or ability to testify, and the testimony expected from the witness is material to the prosecution of the case. Adopted effective 1/1/2016 in Strafford and Cheshire counties and 7/1/2016 in Belknap County.Comment
Paragraphs (a) through (c) of Rule 16 derive from RSA 517:13-a, I through III. Paragraph (d) derives from RSA 517:14-a. The New Hampshire Supreme Court has held that once a videotaped trial deposition has been taken under RSA 517:13-a, it is not per se admissible at trial; rather, the court must make a specific finding at the time of trial that the deponent continues to be "unavailable" to testify for Confrontation Clause purposes. State v. Peters, 133 N.H. 791 (1986). The status of this rule is uncertain in light of the new standards relative to confrontation clause rights as articulated by the United States Supreme Court in Crawford v. Washington, 541 U.S. 36 (2004), and its progeny.