When it comes to victim depositions, New Hampshire provides far more latitude than the federal government and nearly every other state in the nation. NH is now one of only 5 states that permit criminal defense discovery depositions. The federal government does not allow victim depositions. In fact, The Rules of Federal Criminal Procedure do not allow any discovery depositions. In NH, the practice of requesting victim depositions has been used by some defendants and their attorneys to encourage victims to drop charges.
CACR 22 clarifies that defendants won’t have the right to depose the victim directly. It just stops the defense from going around the state to get information directly from the victim, prior to the trial. CACR does not impact a defendant’s ability to get everything that is in the state’s possession; prosecutors will still be required to share all interviews, evidence, and anything else in their possession with the defense. Closing this loophole will have a cost savings for local and county prosecutors, who must spend time fighting these requests in an effort to preserve the victim’s rights.
Furthermore, this provision only applies to pre-trial depositions and interviews – the defendant still has the right to confront their accuser during trial. Under CACR 22, if at any juncture in the criminal justice system the defendant’s and victim’s rights are at direct odds, the court will have the ability to weigh both sides and make a determination about which rights prevail. If a Court orders a deposition of a victim after weighing both sides, then a victim would have to comply.