John Doe v. Town of Hanover Police Department & a.

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2022-0452, John Doe v. Town of Hanover
Police Department & a., the court on November 6, 2024, issued
the following order:

The court has reviewed the written arguments and the record submitted
on appeal, has considered the oral arguments of the parties, and has
determined to resolve the case by way of this order. See Sup. Ct. R. 20(2). The
plaintiff, John Doe, appeals a decision of the Superior Court (MacLeod, J.)
granting the defendants’, the New Hampshire Attorney General’s Office (AGO)
and the Town of Hanover Police Department (HPD), motion to dismiss. The
plaintiff sought a declaratory judgment removing his name from the
Exculpatory Evidence Schedule (EES), asserting that the lapse of time since the
underlying incident renders it no longer potentially exculpatory. See RSA
105:13-d (2023). Concluding that the plaintiff’s behavior was potentially
exculpatory, the trial court dismissed his petition. We vacate and remand.

I. Background

The following facts are derived from the plaintiff’s complaint and
accompanying documentation and are assumed to be true for the purposes of
this appeal. See Boucher v. Town of Moultonborough, 176 N.H. 271, 272
(2023). More than twenty years ago, the HPD hired the plaintiff to work as a
police officer. The HPD’s collective bargaining agreement (CBA) with the town
provided a stipend to officers who passed a physical agility test. Prior to taking
the test, officers had to obtain clearance from a medical provider. In an
attempt to secure the stipend, the plaintiff forged his doctor’s signature on the
medical clearance form. A secretary with the HPD noticed that the signature
did not match the same doctor’s signature on another form and informed HPD
staff about the false signature. During an internal HPD investigation, the
plaintiff admitted to forging his doctor’s signature. The HPD’s police chief
sustained the investigation’s finding that the plaintiff lied to the HPD and
suspended him for two weeks.

Several years later, the plaintiff sought to have the disciplinary action
removed from his file pursuant to a clause in the CBA permitting such removal
after five years had passed with no further incidents. The town manager
approved the request. The plaintiff retired from the HPD after working as an
officer for more than fifteen years. After his retirement, the plaintiff’s name
was placed on the EES because he was identified as having engaged in conduct
that could be potentially exculpatory evidence.
 Thereafter, the plaintiff petitioned the superior court seeking, inter alia, a
declaratory judgment that his name should not be included on the EES. He
asserted that the passage of time has made the incident stale. The defendants
moved to dismiss, arguing that, because “whether or not particular information
is exculpatory will turn on the particular facts and circumstances within each
criminal case,” it is “all but impossible to categorically declare that an officer’s
conduct will never be considered exculpatory evidence or will always be
irrelevant for impeachment purposes.”

In reaching its decision, the trial court noted that “[t]he background
supporting the State’s disclosure of potentially exculpatory evidence is clear in
that it ‘is obligated to disclose information favorable to the defendant that is
material to either guilt or punishment’”; an obligation that “‘arises from a
defendant’s constitutional right to due process of law, and aims to ensure that
defendants receive fair trials.’” (Quoting Duchesne v. Hillsborough County
Attorney, 167 N.H. 774, 777 (2015)). Applying that standard, the court
reasoned that “forging a signature in order to secure a stipend is probative of
the plaintiff’s character for truthfulness or untruthfulness, which may be
inquired into on cross-examination, because it shows that he has lied.”

Looking to the factors relevant to assessing the probative value of
evidence under New Hampshire Rule of Evidence 608(b), the court determined
that: (1) “the forgery is probative of untruthfulness”; (2) “there is no dispute
that the plaintiff engaged in the forgery”; (3) the evidence would “speak to his
character if called to be a witness for the prosecution, where he is expected to
be truthful”; and (4) evidence of the forgery “could be used to rebut” the
plaintiff’s testimony should he testify “about not having been disciplined during
his career.” The court also found that the fact that “the forgery occurred
almost 20 years ago and is not likely to be connected to a current or future
case,” weighed “against finding that the plaintiff’s forgery is probative of his
character for truthfulness.” Nonetheless, because the court could not say that
the plaintiff’s conduct “would never be potentially exculpatory as being material
used for impeaching him as a witness,” it granted the defendants’ motion to
dismiss. The plaintiff unsuccessfully moved for reconsideration. This appeal
followed.

II. Analysis

In reviewing an order granting a motion to dismiss, we assume the truth
of the facts as alleged in the plaintiff’s pleadings and construe all reasonable
inferences in the light most favorable to the plaintiff. Boucher, 176 N.H. at
273. The standard of review in considering a motion to dismiss is whether the
plaintiff’s allegations are reasonably susceptible of a construction that would
permit recovery. Id. This threshold inquiry involves testing the facts alleged in
the pleadings against the applicable law. Id. The trial court may also consider
documents attached to the plaintiff’s pleadings; documents, the authenticity of

2
which is not disputed by the parties; official public records; and documents
sufficiently referred to in the complaint. Id. at 273-74. We will uphold the
granting of the motion to dismiss if the facts pled do not constitute a basis for
legal relief. Id. at 274.

RSA 105:13-d provides that the New Hampshire Department of Justice
“may voluntarily maintain” an EES which “shall consist of a list of all current
or former law enforcement officers whose personnel information contain
potentially exculpatory evidence.” RSA 105:13-d, I; see N.H. Ctr. for Pub.
Interest Journalism v. N.H. Dep’t of Justice, 173 N.H. 648, 651 (2020) (the EES
is “a list of police officers who have engaged in misconduct reflecting negatively
on their credibility or trustworthiness”). The statute further provides that “the
individual’s name and corresponding information will become public” unless “a
court issues an order finding that the underlying misconduct is not potentially
exculpatory” or “[a] court issues an order finding that the law enforcement
agency erred in recommending that the officer be placed on the [EES].” RSA
105:13-d, II(d)(1)-(2).

We recently held that “within the context of RSA 105:13-d, ‘potentially
exculpatory evidence’ is evidence, including impeachment evidence, that is
reasonably capable of being material to guilt or to punishment.” Doe v. N.H.
Attorney Gen. (Activity Logs), 176 N.H. ___, ___ (2024), 2024 N.H. 50, ¶18.
Although we noted that “the question of whether evidence is appropriate for
inclusion on the EES is separate from the question of whether that evidence
would be admissible in a criminal proceeding,” we explained that
“considerations made to determine the admissibility of evidence, such as the
age of the conduct and its materiality to an officer’s general credibility, should
factor into the determination of whether information in an officer’s personnel
file warrants his or her inclusion on the EES.” Id. at ___, 2024 N.H. 50, ¶20.
“If there is no reasonably foreseeable case in which ‘potentially exculpatory
evidence’ relating to an officer’s conduct would be admissible, due to the
passage of a significant length of time or some other factor weighing on the
conduct’s relevance,” an officer’s inclusion on the EES would not be warranted.
Id. at ___, 2024 N.H. 50, ¶20.

3
 The trial court’s decision here preceded our articulation of the applicable
standard in Doe (Activity Logs). Having articulated this new standard, we
vacate the trial court’s ruling and remand for further proceedings consistent
with this order.

Vacated and remanded.

MACDONALD, C.J., and BASSETT, DONOVAN, and COUNTWAY, JJ.,
concurred.

Timothy A. Gudas,
Clerk

4