In re Morrill , 147 N.H. 116 ( 2001 )

NADEAU, J.,

dissenting: One of the most difficult appellate tasks is to review decisions made as a matter of judicial discretion. Although there are often no specific mandates or explicit proscriptions by which to guide the use of discretion, it must be exercised within discernible and reviewable boundaries. An appellate court will reverse such a decision only upon a finding that the trial court has “abused its discretion.” I think that characterization is unfortunate because it is too easily misunderstood by those not familiar with the concept of judicial discretion as misconduct by the judge.

When we determine whether a ruling made by a judge is a proper exercise of judicial discretion, we are really deciding whether the record establishes an objective basis sufficient to sustain the discretionary judgment made. I believe the record in this case does not sustain the exercise of judicial discretion preventing the children from testifying.

The children, fifteen and sixteen years old, were at court on the day of the final hearing, ready and anxious to testify. Both had witnessed the altercation that led to the domestic violence charge, had been interviewed by the police and had given -written statements of the events. There was no question about their competence to testify or the relevance of their testimony. There was no suggestion their testimony would have been cumulative of other evidence offered by the defendant. The court did not conduct a preliminary interview with the children or appoint a guardian ad litem to represent their interests. No evidence was taken to determine whether testifying would be harmful to them; nor did the court weigh any harm it may have perceived against the right of the defendant to produce evidence. Nevertheless, following a chambers conference, the court prohibited the children from testifying.

The plaintiffs motion in limine to prevent the children’s testimony was argued in chambers, off the record, on the day of the final hearing. No written findings were made to explain the court’s ruling. The only recorded indication of a reason for the judge’s decision appears at the conclusion of the final hearing, when she offered her personal opinion that “it’s offensive that you had the children here today. I don’t think it’s fair to them to put them in the middle.”

Although the record indicates the judge read the children’s statements, it also indicates she received and read those statements in court during the final hearing — hardly a satisfactory substitute for recorded testimony in court upon a domestic violence charge which, if proved, would carry significant adverse consequences for the defendant relating to custody, visitation and other individual rights.

Because the record does not support any basis for the exercise of her discretion to prevent the children from testifying other than subjective opposition to their participation, I would reverse. Respectfully, therefore, I dissent.

Brock, C.J., joins in the dissent.