On February 25, 2011, the New Hampshire Supreme Court issued an opinion in the matter of Leone v. Leone, which deals with a court’s discretion to hear telephonic testimony. In this case, the parties were a married couple with three children who resided together in Mississippi until the mother moved with the children to New Hampshire. About a month after the mother moved to New Hampshire, she filed a domestic violence petition requesting a restraining order against the father.
At a hearing on the restraining order, the mother appeared in person with an attorney and the father appeared telephonically with his attorney present in the courtroom. After the mother’s testimony, the father requested, through his attorney, that the Court allow him to testify telephonically. The court denied the request, and stated, on the record:
I’m having a problem with that. I do not usually allow people to testify telephonically. I have to judge their demeanor, their credibility. If they’re not in front of me, how can I do that?
I’m not going to allow it. I do not allow telephonic testimony. Never have, never will.
The father appealed, questioning whether the court erred in denying the father’s request to testify telephonically. The Supreme Court held that the court did err, concluding that a blanket exclusion of all telephonic testimony was an abuse of discretion. Instead, the court should have weighed and considered the specific circumstances of the case that would call for telephonic testimony, including:
- the ability of the witness to travel to New Hampshire, weighing feasibility and cost
- the nature of the proceedings
- the consequences facing the party/witness
- whether the court has the technical capability of accommodating such a request
- whether the other party objected to the telephonic testimony
- alternative methods of testimony, such as teleconferencing or an offer of proof through an attorney, would
In short, the Supreme Court determined that there had to be an objective basis for denying the telephonic testimony. An interesting caution in the case is the note that the Leone case does not hold whether the telephonic testimony would be admissible, and sites the Kansas case of In the Estate of Broderick. That argument is left for another day.