HR REPORT: Legal Update: New Hampshire Supreme Court Weighs In on the Attorney General’s Exculpatory Evidence Schedule

The information contained in this article is not intended as legal advice and may no longer be accurate due to changes in the law. Consult NHMA's legal services or your municipal attorney.

Law enforcement agencies in New Hampshire have long grappled with their role and obligations in reporting police officer misconduct to the New Hampshire Department of Justice (DOJ) for purposes of the Attorney General’s Exculpatory Evidence Schedule (“EES”). A recent decision by the New Hampshire Supreme Court in Doe v. N.H. Attorney Gen., 2024 N.H. 50 (2024) adds another level of uncertainty by adding additional criteria that the Attorney General must consider before placing an officer’s name on the EES. While the decision does not directly place additional obligations on law enforcement agencies, it may be interpreted to
limit instances where agencies report officer discipline for potential inclusion on EES. Likewise, the Attorney General’s potential deference to law enforcement agencies to determine whether officers should be added to the EES may place an additional burden on agencies to conduct the legal analysis prescribed by the Court in Doe.

In 2017, the DOJ created the statewide EES as a mechanism for gathering the names of police officers who had engaged in conduct that the State was constitutionally required to disclose to criminal defendants. In 2021, RSA 105 was amended to add RSA 105:13-d, addressing an officer’s placement on the EES and a process to appeal placement. RSA 105:13-d, I states that:

The Department of Justice may voluntarily maintain an Exculpatory Evidence Schedule. The Exculpatory Evidence Schedule shall consist of a list of all current or former law enforcement officers whose personnel information contain potentially exculpatory evidence. Subject to the provisions of this section, the Exculpatory Evidence Schedule may be maintained by the Department of Justice and shall be a public record subject to RSA 91-A. Officers added to the EES prior to the effective date of RSA 105:13-d were given a mechanism to challenge their placement on the EES by filing a lawsuit in Superior Court while officers added to the EES after the effective date of the law must resort to the grievance procedure provided by their department.

In Doe v. N.H. Attorney Gen., three former State troopers utilized the statute to challenge their placement on EES decades earlier. The troopers were placed on the EES after an internal investigation concluded that they inflated their reported traffic enforcement activities. The troopers admitted that they had inflated their activity reports and were disciplined. They were also referred for placement on the EES (at that time referred to as the “Laurie List”).

In their lawsuit challenging EES placement, the officers argued that the internal investigation and findings that resulted in their placement on the EES were “incorrect, misinterpreted, stale, and/or not serious enough to warrant their names’ inclusion.” In response, the Attorney General argued that the officers’ untruthfulness constitutes exculpatory evidence.

RSA 105 does not define “potentially exculpatory” evidence for EES purposes. The Court noted that in the absence of a definition, the Attorney General has made that determination on their own with guidance from analogous federal law. In the absence of a statutory definition, the Court provided its own, holding that “potentially exculpatory evidence is evidence, including impeachment evidence, that is reasonably capable of being material to guilt or to punishment.”

The Court then added criteria not previously considered in determining whether an officer’s conduct is potentially exculpatory, holding that “factors such as the nature and age of the conduct are relevant for the purpose of determining whether information in a personnel file pertaining to an officer is exculpatory.” The Court also held that potentially exculpatory evidence must be admissible in a theoretical criminal trial where the officers might be called to testify. The Court remanded the case to the Superior Court to make legal determinations regarding the potential admissibility of exculpatory evidence as a threshold test for the troopers on the EES.

Prior to this decision, the DOJ was only required to consider the underlying misconduct and determine if it was potentially exculpatory. As a result of the Doe decision, DOJ must now conduct a further analysis to determine the admissibility of that evidence in a theoretical criminal case.

Whether the Attorney General’s office will place some of this additional burden of making EES determinations on law enforcement agencies who refer cases is an open question. Most law enforcement agencies are not equipped to make these determinations because they call for detailed and theoretical legal analysis historically conducted by the Attorney General’s office and individual prosecutors on a case-by-case basis. If the Attorney General’s office does defer to law enforcement agencies to make these determinations police chiefs may face pressure to make complex legal conclusions in addition to findings of fact prior to making EES referrals.

This is not a legal document nor is it intended to serve as legal advice or a legal opinion. Drummond Woodsum & MacMahon, P.A. makes no representations that this is a complete or final description or procedure that would ensure legal compliance and does not intend that the reader should rely on it as such.