An off-duty police officer was involved in a motor vehicle accident and, as a result, the other driver was issued a citation for failure to yield. The defense counsel for this driver sought data from the police officer’s personnel file to determine if it contained negative incidents from the officer’s driving record or other negative information that might reflect poorly on the officer’s credibility. This is called “exculpatory information” because a criminal defendant might use it to raise doubt about an officer’s testimony, possibly leading to a finding of not guilty for the defendant.
The prosecution objected to this request because it did not meet the standards contained in RSA 105:13-b, which is a statute that describes a procedure to obtain access to police personnel files.
The trial court ordered the prosecutor to examine the personnel file to determine if any exculpatory information existed and, if so, to provide the information to defense counsel. The state appealed, arguing that this procedure did not comply with RSA 105:13-b because the file review was to be conducted by the prosecutor, rather than the court.
On appeal, the New Hampshire Supreme Court upheld the order of the trial court, ruling that under State v. Laurie, 139 N.H. 325 (1995) a criminal defendant always has a constitutional right to receive exculpatory information and, thus, the procedures of RSA 105:13-b were not implicated. Hereafter, all police personnel files will be open to a prosecutor for review when a defendant seeks any exculpatory information regarding the conduct of a police officer. Unless a defendant is able to show a court that there is a reasonable probability to believe that the officer’s entire personnel file contains matter that is likely to be exculpatory, there will be no in camera review of the file by a court.
Police departments and human resource administrators should carefully review this decision, since prosecutors may now need to review police personnel files in response to a defendant’s discovery request. There will be many items of information in these files that could not be considered exculpatory information and may implicate other legally protected rights of the officer to privacy in areas such as personally identifying health information. The files may need to be restructured to both protect a defendant’s right to receive exculpatory information and remain in compliance with applicable federal privacy laws protecting the officer.