New Hampshire Bar Journal
2005 Fall, 22.
BEYOND STATE V. KIDDER Defining a Defendant's Right to Contact Witnesses in Domestic Violence Cases
New Hampshire Bar Journal Volume 46, No. 3, Pg. 22 Fall 2005 BEYOND STATE V. KIDDER Defining a Defendant's Right to Contact Witnesses in Domestic Violence Cases Bar Journal Author - Mary Krueger
Few would disagree that the emotionally charged, dangerous, and high intensity crime of domestic violence poses unique challenges to our justice system. These challenges were brought to the fore recently when the New Hampshire Supreme Court issued State v. Kidder.(fn1) This case illustrated the difficulties courts face in balancing victim and defendant rights, specifically when it comes to a defendant's right to contact that victim as a witness. While the Court's decision concerned interpretation of a civil statute, it has also had a broader effect on criminal domestic assault cases. And while the legislature's proposed response to Kidder, which failed to pass this session,(fn2) would likely remedy some of these broader problems, questions still remain.
State v. Kidder defined the bounds of the no-contact provision of a 173-B civil domestic violence restraining order.(fn3) Strictly interpreting the text, the Court determined that a defendant who knowingly contacted the plaintiff through his attorney could be found guilty of violating that order, regardless of the intentions behind that contact.(fn4) The decision sent shock waves through New Hampshire's legal community.
Family law attorneys and criminal defense attorneys concluded that previously routine third-party communication with 173-B plaintiffs needed to change, or rather, cease, altogether.(fn5) Otherwise, attorneys would risk exposing their clients to criminal charges for violating the protective order regardless of the purpose of the communication.
II. The Kidder Facts
Without the benefit of an evidentiary hearing and thus relying on a trial court's statement of the case, the Supreme Court stated the facts as follows: An unrepresented plaintiff filed for and was granted a temporary domestic violence restraining order against the defendant.(fn6) After being notified of the petition, the defendant hired an attorney.(fn7) At the defendant's direction, that attorney contacted the unrepresented plaintiff to arrange for a meeting with all three parties present.(fn8) The plaintiff then contacted the police to report that she feared the defendant "would talk her out of pursuing the domestic violence matter." (fn9)
As a result of the plaintiff's report, the defendant was charged with a class A misdemeanor for having third-party contact with the plaintiff through his attorney in violation of the no-contact provision of that order.(fn10) In response, the defendant's attorney filed a motion to dismiss the charge.(fn11) Rather than decide the motion, the District Court certified what it considered to be unresolved legal questions about third-party contact under 173-B, to the New Hampshire Supreme Court.(fn12)
III. The Court's Reasoning
In deciding the case, the Supreme Court looked at the statute's plain language and legislative intent. It found no explicit exceptions to the no-contact provision of a protective order.(fn13) It also found no indication that the legislature intended to "except 'legitimate contact' by certain third parties."(fn14) Instead, the Court reiterated that 173-B was intended "to preserve and protect the safety of the family unit for all family or household members by entitling victims of domestic violence to immediate and effective police protection and judicial relief."(fn15) For this reason, the Court concluded that, as written, the statute authorized prosecution of a defendant who knowingly contacted the alleged victim through an attorney, regardless of the purpose for that contact.(fn16)
Finding no express provision, the Court refused to imply a "legitimate purpose" exception.(fn17) It reasoned "that any contact with the victim, whether legitimate or not, may be perceived by the victim as harassment, intimidation or abuse."(fn18) For these reasons, the Court held that the statute's intended policy would best be realized by sheltering the victim from any real or perceived pressures resulting from such third-party contacts. Therefore, the Court declined to differentiate between "legitimate" third-party contact and "non-legitimate" third party contact in the context of a 173-B restraining order.(fn19)
In so ruling, the Court also rejected the defendant's argument that imposing criminal penalties for "legitimate" third-party contact, for example by a teacher or a doctor, would lead to absurd results.(fn20) The Court instead focused on whether the defendant "knowingly" contacted the plaintiff via a third party. Contact made to inform the other parent of something, such as the child's whereabouts or illness, would be barred.(fn21) Accordingly, the Court held that a defendant could be found guilty of violating a protective order, "if the trier of fact finds that the defendant knowingly contacted the unrepresented protected person through his attorney."(fn22) The purpose of the contact was irrelevant to the Court's analysis.
While the Court urged "prosecutorial discretion" to distinguish between "innocent" third-party contact, as opposed to contact where a third party acts as the defendant's conduit, this distinction is meaningless.(fn23) "Innocent," after all, is synonymous with "legitimate." For example, a doctor phoning the protected parent on behalf of the defendant to inform that parent of a child's accident, could be considered both "innocent" and "legitimate" contact. But, the Court was clear that a defendant wishing to make "legitimate" third-party contact, through an attorney or otherwise, would need to first petition the court for permission.(fn24) If not, they could be prosecuted for violating the order. Therefore, the Court's distinction creates confusion for defense attorneys and their clients over what kind of contact may be subject to prosecution.
Furthermore, the Court rejected arguments concerning a defendant's constitutional rights to legitimate third-party contacts.(fn25) In so doing, the Court reasoned that "certain circumstances" warrant curtailing a defendant's right to contact witnesses.(fn26) The Court did not specify the circumstances in which curtailment would be warranted. However, it did determine that such circumstances exist when a witness is a domestic violence victim who holds a protective order against the defendant.(fn27)
IV. Implications for Criminal Cases
Kidder has changed how some criminal defense attorneys, including those at the New Hampshire Public Defender's office, prepare cases. They, along with some prosecutors and courts, have broadly construed Kidder as applying not only to civil restraining orders, or violations thereof, but also to no-contact bail orders issued in the criminal context.(fn28 )Because a court-ordered no-contact bail order is the criminal equivalent to a civil restraining order, some attorneys presume courts will curtail witness access for defendants accused of domestic violence-related crimes. In this respect also, the Kidder decision has opened the question over third-party attorney contact in criminal domestic assault cases.
Without further clarification on whether Kidder applies to criminal assault cases, many criminal defense attorneys have proceeded cautiously to avoid placing their clients at risk of further prosecution. Attorneys placed in the untenable position of not knowing how courts may apply Kidder, are playing it safe. For example, the New Hampshire Public Defender office no longer contacts or interviews alleged victim/witnesses without a court's permission. Thus, absent a court's modification of a no-contact bail order, this broad interpretation of Kidder has the effect of restricting a criminal defendant's right to contact victim/witnesses in criminal domestic violence assault cases.
However, a further probing of the Kidder Court's reasoning suggests that courts may treat criminal domestic assault cases differently than their civil counterparts. When due process liberty interests are at issue, an even stronger case can be made that Kidder likely does not apply.
A. Kidder and Due Process Analysis
Had the Kidder Court intended its decision to apply in the criminal context, it would have likely more deeply analyzed the defendant's due process rights in order to justify curtailing them. In its analysis, however, due process considerations were cursory at best. Even though the Kidder Court relied on a California criminal case, Reid v. Superior Court (fn29), to support its premise that witness access may be curtailed under "certain circumstances," the two Courts differed greatly in defining those circumstances. Thus, the Kidder Court's treatment of due process analysis bolsters the concept that the decision does not apply to criminal assault cases.
For example, unlike Kidder, in reaching its decision, the Reid Court specifically analyzed the defendant's due process rights under the Fourteenth Amendment to the U.S. Constitution, California's Constitution and its criminal discovery statutes.(fn30) It so doing, it determined that the defendant had a "right to have an opportunity to interview" witnesses if they were willing.(fn31) Additionally, it said that curtailing that right would be "justifiable only under the...