It has always been understood that a trial judge, whether sitting in the superior, district, probate, or family court, has the inherent authority to control the manner in which business is conducted in his/her courtroom.
The Supreme Court, in the case of In re: GG recently demonstrated how far that authority can extend. The case of In re: GG is child abuse and neglect proceeding. The child alleged that the father had abused her. The father subpoenaed the child to hearing for purposes of cross examining her about her recollection of the alleged assaults. The father insisted that he had an absolute right to confront his accuser. The State of New Hampshire, who was representing the interest of the child, moved to block the father from calling the child stating that evidence of how the assault occurred could be introduced second hand through other witnesses such as the interviewer of the child at the Child Advocacy Center. The trial court agreed and barred the father from calling the child as a witness.
The Supreme Court held that the father did not have the absolute right to call the child as a witness as a trial court always has the authority to limit how evidence is presented. It then laid out several factors which a trial court could consider in deciding whether a child victim could be called as a witness. While it bears noting that the GG decision was an abuse and neglect proceeding, which is regulated by RSA 169-C, it does give support to the premise that trial judge’s inherent authority in all cases in limiting or excluding witnesses if they feel the witness will have nothing to add to the case or whose evidence may be irrelevant or cumulative. When preparing a case for trial, lawyers should use the GG decision as a guide to determining what witnesses and evidence are absolutely critical to their case and which witnesses and evidence could be excluded. Quality is the guide post, not the quantity of testimony.
Andrew J. Piela is a Director at Hamblett & Kerrigan, P.A. Mr. Piela concentrates his practice in civil litigation, family law, probate and land use litigation. You can reach Attorney Piela by e-mail at [email protected].