TITLE LIII
PROCEEDINGS IN COURT

Chapter 516
WITNESSES

Attendance of Witnesses

Section 516:1

    516:1 Summons. – A summons or subpoena not executed under seal shall be as effectual as though sealed. Writs of summons to witnesses shall be substantially in the form following:
THE STATE OF NEW HAMPSHIRE
__________ ss. To __________ :
You are required to appear at __________ , in the county of __________ , on the __________ day of __________ , to testify what you know relating to __________ , then and there to be heard, in which __________ is __________ and __________ is __________ .
Hereof fail not, as you will answer your default under the penalties prescribed by law.
Dated at ___ , the ___ day of ___ , ___ .
(Signed)

Source. RS 188:2. CS 200:2. GS 209:1. GL 228:1. PS 224:1. PL 336:1. RL 392:1. RSA 516:1. 1977, 366:1, eff. Aug. 30, 1977.

Section 516:2

    516:2 Issue of Summons by Clerks. – Such writ may be issued by the clerk of any court for witnesses in any case pending therein.

Source. RS 188:3, 4. CS 200:3, 4. GS 209:2. GL 228:2. PS 224:2. PL 336:2. RL 392:2.

Section 516:3

    516:3 Issue of Summons by Justices or Judges. – Any justice or judge may issue such writs for witnesses, in cases pending before himself or herself or any other justice or judge, in any case in any court, in all matters before the general court, or before auditors, referees, arbitrators or commissioners.

Source. RS 188:4. CS 200:4. GS 209:3. GL 228:3. PS 224:3. PL 336:3. RL 392:3. 2007, 117:3, eff. June 11, 2007.

Section 516:4

    516:4 Issue, for Depositions. – Any justice or notary may issue such writs for witnesses to appear before himself or any other justice or notary, to give depositions in any matter or cause in which the same may be lawfully taken.

Source. RS 188:5. CS 200:5. GS 209:4. GL 228:4. PS 224:4. PL 336:4. RL 392:4.

Section 516:5

    516:5 Service of Summons. – Any person may be summoned to attend and testify or give his deposition, by reading to him, or by giving to him in hand an attested copy of, the writ of summons, and by paying or tendering to him the fees established for his travel to and from the place where his attendance is required, and for one day's attendance.

Source. RS 188:6. CS 200:6. GS 209:5. GL 228:5. PS 224:5. 1895, 9:1. PL 336:5. RL 392:5.

Section 516:6

    516:6 Neglect to Attend. – If a person so summoned neglects to attend or to give his attendance so long as may be necessary for the purpose for which he was summoned, or refuses to testify or to give his deposition if required, having no reasonable excuse therefor, he shall be liable to the party aggrieved for all damages sustained thereby.

Source. RS 188:7. CS 200:7. GS 209:6. GL 228:6. PS 224:6. PL 336:6. RL 392:6.

Section 516:7

    516:7 Penalty. – Every court, justice, and notary, before whom a person has been summoned to appear and testify or to give a deposition, may bring the person neglecting or refusing to appear or to testify or to give a deposition, by attachment, before them, and if, on examination, such person has no reasonable excuse, such person shall be guilty of a violation, and may be ordered to pay costs.

Source. RS 188:8. CS 200:8. GS 209:7. GL 228:7. PS 224:7. PL 336:7. RL 392:7. RSA 516:7. 1973, 531:150. 2003, 128:1, eff. Jan. 1, 2004.

Section 516:7-a

    516:7-a Victim/Witness Advocates as Witnesses. – If a victim/witness advocate is called as a witness, a party opposing such action may move for an order requiring the party desiring to use such testimony to show cause why such victim/witness advocate's testimony is necessary. In no case shall a victim/witness advocate be sequestered unless the court finds and orders, based on the facts of the case, that failure to sequester would violate a defendant's rights.

Source. 1994, 394:4, eff. June 10, 1994.

Nonresident Officers, etc., of Corporations

Section 516:8

    516:8 Inclusions. – The words director, officer and agent as used in this subdivision shall include all persons who may be directors, officers and agents of such corporation at the commencement of the proceeding or who may become such during the pendency thereof, and all persons who may have the custody or possession of the books, records or papers of the corporation.

Source. 1903, 37:6. PL 336:15. RL 392:15.

Section 516:9

    516:9 Duty to Testify. – Whenever any domestic corporation is a party to any legal proceeding in this state before any court or other lawful tribunal, every nonresident director, officer or agent of such corporation may be required to appear and testify in such proceeding within the state, or to give his deposition for use in such proceeding before a special commissioner or commissioners within or without the state, and to produce all books, records and papers of such corporation or relating to its affairs in his possession or control so far as the same may be material upon the question involved in such proceedings.

Source. 1903, 37:1. PL 336:8. RL 392:8.

Section 516:10

    516:10 Order; Summons. – Upon the petition of a party to such proceeding, a justice of the superior court may issue such order as shall seem to the court to be reasonable and just, requiring such director, officer or agent to appear and testify in such proceeding, and upon such order the clerk of the superior court for any county may issue a summons requiring compliance with the order.

Source. 1903, 37:2. PL 336:9. RL 392:9.

Section 516:11

    516:11 Service of Summons. – Such summons may be served either within or without the state, and may require the person summoned to produce books, records and papers in connection with his testimony.

Source. 1903, 37:2. PL 336:10. RL 392:10.

Section 516:12

    516:12 Commissioner, Issuance of Summons by. – Upon like petition, the court may issue a commission to any special commissioner, authorizing him to summon or cause to be summoned such director, officer or agent to appear before him and give his deposition for use in such proceeding, and such summons may require the person so summoned to produce books, records and papers in connection with his deposition.

Source. 1903, 37:3. PL 336:11. RL 392:11.

Section 516:13

    516:13 Fees. – Any witness so summoned to testify or give his deposition shall be paid such fees for attendance and travel as witnesses are entitled to under the laws of the state in which the testimony or deposition is to be given.

Source. 1903, 37:4. PL 336:12. RL 392:12.

Section 516:14

    516:14 Double Fees. – If the witness shall be summoned to come from another state into this state he shall be paid double fees for his travel and attendance.

Source. 1903, 37:4. PL 336:13. RL 392:13.

Section 516:15

    516:15 Neglect to Attend. – If any such director, officer or agent shall wilfully neglect or refuse to appear, produce books, records or papers, or to testify or give his deposition as required by such order or summons, the superior court, upon notice and hearing, may thereupon appoint a receiver to manage and control such corporation until the reasonable and just orders of the court shall be complied with, and when such orders shall have been complied with, such receiver shall be discharged.

Source. 1903, 37:5. PL 366:14. RL 392:14.

Fees of Witnesses

Section 516:16

    516:16 Repealed by 2019, 346:157, V, eff. July 1, 2019. –

Section 516:16-a

    516:16-a Repealed by 2019, 346:157, VI, eff. July 1, 2019. –

Section 516:17

    516:17 Repealed by 1994, 273:4, eff. June 6, 1994. –

Section 516:18

    516:18 Limitation. – In civil causes the party prevailing shall be entitled to tax for the travel of witnesses residing out of the state to the line of the state only, unless the court specially orders otherwise.

Source. 1883, 66:1. PS 287:15. PL 336:20. RL 392:18.

Competency of Witnesses, etc.

Section 516:19

    516:19 Swearing. – No other ceremony shall be necessary in swearing than holding up the right hand, but any other form or ceremony may be used which the person to whom the oath is administered professes to believe more binding upon the conscience.

Source. RS 188:10. CS 200:10. 1860, 2364. GS 209:10. GL 228:10. PS 224:10. PL 336:21. RL 392:19.

Section 516:20

    516:20 Affirmation. – Persons scrupulous of swearing may affirm; the word "affirm" being used in administering the oath, instead of the word "swear," and the words "this you do under the pains and penalties of perjury," instead of the words "So help you God."

Source. RS 188:11. CS 200:11. GS 209:11. GL 228:11. PS 224:11. PL 336:22. RL 392:20.

Section 516:21

    516:21 Religious Opinions. – No person who believes in the existence of a supreme being shall be excluded from testifying on account of his opinions on matters of religion.

Source. RS 188:9. CS 200:9. GS 209:12. GL 228:12. PS 224:12. PL 336:23. RL 392:21.

Section 516:22

    516:22 Interest. – No person shall be excused or excluded from testifying or giving his deposition in any civil cause by reason of his interest therein, as a party or otherwise.

Source. 1857, 1952:1. 1858, 2090:1. GS 209:13. GL 228:13. 1885, 27:1. PS 224:13. PL 336:24. RL 392:22.

Section 516:23

    516:23 Party Deponent. – No party shall be compelled, in testifying or giving a deposition, to disclose the names of the witnesses by whom nor the manner in which he proposes to prove his case, nor, in giving a deposition, to produce any writing which is material to his case or defense, unless the deposition is taken in his own behalf.

Source. 1858, 2090:1. GS 209:14. GL 228:14. PS 224:14. PL 336:25. RL 392:23.

Section 516:24

    516:24 Repealed by 1986, 210:1, I, eff. Jan. 1, 1987. –

Section 516:25

    516:25 Repealed by 1994, 57:1, II, eff. Jan. 1, 1995. –

Section 516:25-a

    516:25-a Statements of Minors in Certain Civil Cases. – In all civil actions, suits or proceedings to recover damages on behalf of a minor child for abuse or assault, including sexual abuse or sexual assault, any statement of the minor child alleged to have been the victim of such abuse or assault shall not be excluded as hearsay, provided that the trial judge, prior to the admission of such testimony, shall make findings of fact that the statement sought to be admitted is apparently trustworthy and that the witness seeking to testify to such statement is competent.

Source. 1989, 30:1, eff. Jan. 1, 1990.

Section 516:26

    516:26 Negotiated Paper. – In an action brought by an indorsee or assignee of a bill of exchange, promissory note or mortgage against an original party thereto, the defendant shall not testify in his own behalf if either of the original parties to the bill, note or mortgage is dead or insane, unless the plaintiff elects to testify himself or to offer the testimony of an original party thereto.

Source. 1862, 2601:1, 2. GS 209:19. GL 228:19. PS 224:19. PL 336:30. RL 392:28.

Section 516:27

    516:27 Repealed by 1994, 57:1, III, eff. Jan. 1, 1995. –

Section 516:28

    516:28 Wills, etc. – The provisions of this chapter shall not affect the law relative to the attestation of wills or other instruments required to be attested by subscribing witnesses.

Source. 1858, 2090:2. GS 209:23. GL 228:22. PS 224:21. PL 336:32. RL 392:30.

Section 516:29

    516:29 Repealed by 1994, 57:1, IV, eff. Jan. 1, 1995. –

Section 516:29-a

    516:29-a Testimony of Expert Witnesses. –
I. A witness shall not be allowed to offer expert testimony unless the court finds:
(a) Such testimony is based upon sufficient facts or data;
(b) Such testimony is the product of reliable principles and methods; and
(c) The witness has applied the principles and methods reliably to the facts of the case.
II. (a) In evaluating the basis for proffered expert testimony, the court shall consider, if appropriate to the circumstances, whether the expert's opinions were supported by theories or techniques that:
(1) Have been or can be tested;
(2) Have been subjected to peer review and publication;
(3) Have a known or potential rate of error; and
(4) Are generally accepted in the appropriate scientific literature.
(b) In making its findings, the court may consider other factors specific to the proffered testimony.

Source. 2004, 118:1, eff. July 16, 2004.

Section 516:29-b

    516:29-b Disclosure of Expert Testimony in Civil Cases. –
I. A party in a civil case shall disclose to other parties the identity of any person who may be used at trial to present evidence under Rules 702, 703, or 705 of the New Hampshire rules of evidence.
II. Except as otherwise stipulated or directed by the court, this disclosure shall, with respect to a witness who is retained or specially employed to provide expert testimony in the case or whose duties as an employee of the party regularly involve giving expert testimony, be accompanied by a written report signed by the witness. The report shall contain a complete statement of:
(a) All opinions to be expressed and the basis and reasons therefor;
(b) The facts or data considered by the witness in forming the opinions;
(c) Any exhibits to be used as a summary of or support for the opinions;
(d) The qualifications of the witness, including a list of all publications authored by the witness within the preceding 10 years;
(e) The compensation to be paid for the study and testimony; and
(f) A listing of any other cases in which the witness has testified as an expert at trial or by deposition within the preceding 4 years.
III. These disclosures shall be made at the times and in the sequence directed by the court. In the absence of other directions from the court or stipulation by the parties, the disclosures shall be made at least 90 days before the trial date or the date the case is to be ready for trial or, if the evidence is intended solely to contradict or rebut evidence on the same subject matter identified by another party, within 30 days after the disclosure made by the other party. The parties shall supplement these disclosures when required in accordance with the court's rules.
IV. The deposition of any person who has been identified as an expert whose opinions may be presented at trial, and whose testimony has been the subject of a report under this section, shall not be conducted until after such report has been provided.
V. The provisions of this section shall not apply in criminal cases.

Source. 2004, 118:1. 2005, 279:1, eff. July 22, 2005. 2013, 65:1, eff. Jan. 1, 2014.

Section 516:29-c

    516:29-c Medical and Hospital Records, Bills, and Reports; Evidence in Certain Civil Cases. –
I. Except as provided in paragraph V, in any civil proceeding before a court, commission, or agency, records or reports of licensed health care providers relating to medical, dental, or hospital services, prescriptions, or orthopedic appliances rendered to or prescribed for an injured person, reports of any medical or dental examination of such injured person, and itemized bills reflecting the amounts charged for such services, prescriptions, or appliances, which are subscribed and sworn to under the penalties of perjury by the licensed health care provider, authorized agent of the hospital or health maintenance organization rendering such services, or the pharmacist or retailer of orthopedic appliances, shall be admissible, as evidence of:
(a) The reasonable necessity of such services, treatments, or appliances, and the fair and reasonable charges for the same, provided that those matters are attested to in the record or report, or in the accompanying certification;
(b) The diagnosis and prognosis of the licensed health care provider, provided that such diagnosis or prognosis is expressly stated by the author of the record or report;
(c) The opinion of such licensed health care provider as to the proximate cause of the diagnosed condition, provided that such opinion is expressly stated by the author of the record or report; and
(d) The opinion of such licensed health care provider as to disability or incapacity, if any, proximately resulting from the diagnosed condition, provided that the opinion is expressly stated by the author of the record or report.
II. Written notice of the intention to offer such record, report, or bill as evidence, together with a copy of such report or bill, shall be given to the opposing party or parties, or to their attorneys, on or before the date established for disclosure of expert testimony pursuant to RSA 516:29-b or such other time as may be set by the court.
III. Nothing in this section shall be construed to limit the right of any party to the action or proceeding to summon, at his or her own expense, such licensed health care provider, pharmacist, retailer of orthopedic appliances, or agent of such hospital or health maintenance organization, or the records of such licensed health care provider, hospital, or health maintenance organization, for the purpose of cross-examination with respect to such record, report, or bill, or to rebut the contents thereof, or for any other purpose, nor to limit the right of any party to the action or proceeding to summon any other person to testify in respect to such record, report, or bill, or for any other purpose.
IV. Nothing in this section shall be construed to render admissible any facts, opinions, or information that would not be admissible if testified to by a live witness.
V. This section shall not apply to any action for medical injury as defined in RSA 507-E:1. Nor shall this section apply to any action to recover for bodily injuries in which the plaintiff claims to have incurred medical expenses in excess of $25,000.
VI. In this section:
(a) "Licensed health care provider" shall include any person who is licensed to practice as such under the laws of the jurisdiction within which such services were rendered, and shall include, but not be limited to medical doctors, chiropodists, chiropractors, dentists, nurse practitioners, optometrists, osteopaths, physician assistants, physical therapists, podiatrists, psychologists, and other medical personnel.
(b) "Hospital" means any hospital licensed under RSA 151:2, or licensed or regulated by the laws of any other state, or by the laws and regulations of the United States, including hospitals of the Veterans Administration or similar type institutions, whether incorporated or not.
(c) "Health maintenance organization" means a public or private organization, organized under the laws of any state or the federal government which:
(1) Provides or otherwise makes available to enrolled participants health care services, including at least the following basic health care services: usual physician services, hospitalization, laboratory, x-ray, emergency and preventive services, and out-of-area coverage; and
(2) Is compensated, except for co-payments, for the provision of the basic health care services listed in subparagraph (1) to enrolled participants on a predetermined periodic basis without regard to the date on which health care services are provided; a predetermined periodic basis shall be fixed without regard to the frequency, extent, or kind of health care service actually provided; and
(3) Provides physician services primarily:
(A) Directly through physicians who are either employees or partners of such organization;
(B) Through arrangements with individual physicians or one or more groups of physicians organized in a group practice or individual basis; or
(C) Through a combination of subparagraphs (A) and (B).

Source. 2019, 288:2, eff. Jan. 1, 2020.

Section 516:30

    516:30 Repealed by 1994, 57:1, V, eff. Jan. 1, 1995. –

Section 516:31

    516:31 Repealed by 1994, 57:1, VI, eff. Jan. 1, 1995. –

Section 516:32

    516:32 Repealed by 1994, 57:1, VII, eff. Jan. 1, 1995. –

Section 516:33

    516:33 Repealed by 1994, 57:1, VIII, eff. Jan. 1, 1995. –

Section 516:33-a

    516:33-a Confidential Settlement Agreements. – For purposes of testimony, confidential settlement agreements in prior court actions shall not prevent a person from disclosing information other than the amount of the settlement, if the court finds the information is relevant to the pending action.

Source. 2004, 125:1, eff. Jan. 1, 2005.

Grant of Immunity in Criminal Cases

Section 516:34

    516:34 Compelling Evidence in Criminal Proceedings; Immunity. –
I. Whenever:
(a) A witness refuses, on the basis of his privilege against self-incrimination, to testify or provide information in a proceeding before, or ancillary to a district or superior court or a grand jury; and
(b) The person presiding over the proceeding communicates on the record to the witness an order issued under paragraph II,
the witness may not refuse to comply with the order on the basis of the privilege against self-incrimination. No testimony or other information compelled under the order, or any information directly or indirectly derived from such testimony or other information, may be used against the witness in any criminal case or forfeiture. However, the witness may be prosecuted or subject to penalty or forfeiture for any perjury, false swearing, or contempt committed in answering or failing to answer, or in producing or failing to produce evidence in accordance with the order.
II. A prosecutor may, with the prior written approval of the attorney general or county attorney for the jurisdiction where offenses are alleged to have occurred, request an order requiring such individual to give testimony or provide other information which he refuses to give or provide on the basis of his privilege against self-incrimination, when in the judgment of the attorney general or county attorney:
(a) The testimony or other information from such individual may be necessary to the public interest.
(b) Such individual has refused or is likely to refuse to testify or provide other information on the basis of his privilege against self-incrimination.

Source. 1967, 427:1. 1993, 115:1, eff. July 1, 1993.

Privileged Communications

Section 516:35

    516:35 Religious Leaders. – A priest, rabbi or ordained or licensed minister of any church or a duly accredited Christian Science practitioner shall not be required to disclose a confession or confidence made to him in his professional character as spiritual adviser, unless the person confessing or confiding waives the privilege.

Source. 1979, 197:1, eff. Aug. 10, 1979.

Law Enforcement Agency Documents and Records

Section 516:36

    516:36 Written Policy Directives to Police Officers and Investigators. –
I. In any civil action against any individual, agency or governmental entity, including the state of New Hampshire, arising out of the conduct of a law enforcement officer having the powers of a peace officer, standards of conduct embodied in policies, procedures, rules, regulations, codes of conduct, orders or other directives of a state, county or local law enforcement agency shall not be admissible to establish negligence when such standards of conduct are higher than the standard of care which would otherwise have been applicable in such action under state law.
II. All records, reports, letters, memoranda, and other documents relating to any internal investigation into the conduct of any officer, employee, or agent of any state, county, or municipal law enforcement agency having the powers of a peace officer shall not be admissible in any civil action other than in a disciplinary action between the agency and its officers, agents, or employees. Nothing in this paragraph shall preclude the admissibility of otherwise relevant records of the law enforcement agency which relate to the incident under investigation that are not generated by or part of the internal investigation. For the purposes of this paragraph, "internal investigation" shall include any inquiry conducted by the chief law enforcement officer within a law enforcement agency or authorized by him.

Source. 1986, 111:1, eff. July 19, 1986.

Testimony by Video Teleconference in Criminal and Motor Vehicle Cases

Section 516:37

    516:37 Testimony by Video Teleconference in Criminal Cases. –
I. In any criminal case at which a certifying scientist, criminalist, laboratory scientist, or technical specialist from the forensic laboratory of the department of safety, division of state police is summoned to testify, the state may move to take the testimony of the scientist, criminalist, or specialist by video teleconference, provided that the testimony is limited to expert testimony or to the results of and matters relating to tests conducted at the forensic laboratory. Notice shall be provided to the defendant, and the defendant shall have an opportunity to object to the introduction of testimony by video teleconference. No video teleconference testimony shall be permitted during a felony prosecution, except with the affirmative assent of the defendant. Examination and cross-examination of the scientist, criminalist, or specialist shall proceed in the same manner as permitted at trial.
II. In any criminal case at which the defendant summons a toxicologist, criminalist, laboratory scientist, or other person of similar expertise to testify as an expert witness, the defendant may move to take the testimony of that witness by video teleconference, provided that the testimony is limited to expert testimony or to the results of and matters relating to tests conducted at the forensic laboratory of the department of safety, division of state police. Notice shall be provided to the state, and the state shall have an opportunity to object to the introduction of testimony by video teleconference. No video teleconference testimony shall be permitted during a felony prosecution, except with the affirmative assent of the state. Examination and cross-examination of the expert witness shall proceed in the same manner as permitted at trial.

Source. 2003, 247:1, eff. Jan. 1, 2004.

Section 516:38

    516:38 Testimony by Video Teleconference for Motor Vehicle Violations. – In any contested case for an alleged motor vehicle violation in district court at which a keeper of the records or technical specialist from the department of safety, bureau of hearings or division of motor vehicles is summoned to testify, the state may move to take the testimony of the keeper of the records or technical specialist by video teleconference, provided that the testimony is limited to expert testimony or to the results of and matters relating to records of the department of safety. Notice shall be provided to the defendant, and the defendant shall have an opportunity to object to the introduction of testimony by video teleconference. Similarly, in any contested case for an alleged motor vehicle violation in district court, the defendant may move to take the testimony of his or her own expert witness by video teleconference, provided that the testimony is limited to expert testimony or to the results of and matters relating to records of the department of safety. Notice shall be provided to the state, and the state shall have an opportunity to object to the introduction of testimony by video teleconference. Examination and cross-examination of the expert witness shall proceed in the same manner as permitted at a contested case for an alleged motor vehicle violation in district court. For purposes of this section, "video teleconference" includes the use of any technology that provides live, interactive aural and visual communication.

Source. 2011, 220:3, eff. Aug. 27, 2011.