Supreme Court of New Hampshire Finds Child Testimony Via One-Way Livestream Video Violates State Constitution

The Confrontation Clause of the Sixth Amendment provides that “[a]n all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against him.” Moreover, Part I, Article 15 of the New Hampshire Constitution states that “[e]very subject shall have a right…to meet the witnesses against him face to face.” In Maryland v. Craig, the Supreme Court found that remote testimony is sometimes permissible under the Sixth Amendment’s Confrontation Clause.

So, does a court violate New Hampshire’s Constitution by allowing a young child victim to testify via a one-way livestream video feed outside the presence of the defendant? That was the question of first impression addressed by the Supreme Court of New Hampshire in its recent opinion in State v. Warren, 2025 WL 258842 (N.H. 2025).

In Warren, a mother was charged with, inter alia, first-degree assault for failing to seek medical attention for a wound on the head of her five year-old daughter (“A.D.”), and second-degree assault for causing bodily injury to her daughter by binding her arms for a prolonged period of time. Before trial,

Before trial, the State moved to allow A.D. to testify at trial via one-way video feed “to prevent her from having to see her mother.” The State proposed that A.D. testify “from elsewhere in the Courthouse, and counsel can conduct examination either in the same room as A.D. or from the video feed, provided that A.D. does not have to see the defendant in the video.” In support, the State asserted that if A.D. were to see her mother she “would have an immediate physical response” and “could become unresponsive.” The State argued that “[t]he reliability of [A.D.’s] testimony would be otherwise assured under the State’s proposed procedure” because A.D. “would be present for live cross-examination; she would be testifying under oath; and, her demeanor would be capable of being observed by jury, judge and the defendant.” The defendant objected, arguing that permitting A.D. to testify outside her presence would violate her “right to confrontation under New Hampshire law.”

The court granted the motion, and the mother appealed after she was convicted. On appeal, the Supreme Court of New Hampshire agreed with the mother, concluding that

We hold that Part I, Article 15 clearly and unambiguously requires a face-to-face confrontation between the accused and the witness. Given this conclusion, we clarify that prior intimations in our case law — drawn from federal cases — that a right to direct confrontation is merely a “preference” does not comport with state law….Further, we consider the test set forth in Maryland v. Craig as limited to challenges brought solely under the Sixth Amendment to the United States Constitution….

Here, where the witness testified from a location outside the presence of the defendant and could not see the defendant while she was testifying, there was no face-to-face meeting, thereby violating the plain meaning of Part I, Article 15. Although we are sympathetic to the trial court’s concern for the child witness, we have no authority to ignore the plain language of the State Constitution and override the accused’s constitutional right to face-to-face confrontation….In light of our conclusion that the defendant was denied her right to confront the witness “face to face” in accordance with the State Constitution, we need not address her arguments under the Federal Constitution.

-CM