Doe v. N.H. Attorney Gen. (Activity Logs)

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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Merrimack
Case No. 2022-0578
Citation: Doe v. N.H. Attorney Gen. (Activity Logs), 2024 N.H. 50

JOHN DOE & a.

v.

NEW HAMPSHIRE ATTORNEY GENERAL & a.
(Activity Logs)

Argued: June 6, 2023
Opinion Issued: September 5, 2024
Opinion Modified: September 30, 2024

Milner & Krupski, PLLC, of Concord (Marc G. Beaudoin and John S.
Krupski on the brief, and Marc G. Beaudoin orally), for the plaintiffs.

John M. Formella, attorney general, and Anthony J. Galdieri, solicitor
general (Emily C. Goering, assistant attorney general, Samuel R.V. Garland,
senior assistant attorney general, and Brandon F. Chase, assistant attorney
general, on the brief, and Emily C. Goering orally), for the defendants.

DONOVAN, J.

¶1 The plaintiffs, three retired New Hampshire State Police troopers,
appeal an order of the Superior Court (Kissinger, J.) dismissing their complaint
for declaratory judgment and injunctive relief that challenged their placement
on the Exculpatory Evidence Schedule (EES) pursuant to RSA 105:13-d (2023).
We conclude that the trial court erred in dismissing the plaintiffs’ complaint.
Accordingly, we reverse and remand.

I. Facts

¶2 We accept the following factual allegations as set forth in the
plaintiffs’ complaint as true for the purposes of this appeal. See Automated
Transactions v. Am. Bankers Ass’n, 172 N.H. 528, 532 (2019). Approximately
twenty years ago, the plaintiffs worked as patrol troopers for the New
Hampshire Division of State Police (the Division). As part of their duties, the
plaintiffs were required to conduct a minimum number of traffic stops per shift
and to record those stops in activity logs. To comply with the mandated
number of traffic stops, the plaintiffs “inflated their enforcement action on the
activity logs.” For example, the plaintiffs recorded “rolling stops” when they
observed a “minor equipment violation” that required the trooper to check the
validity of the vehicle owner’s driver’s license, but which did not involve a stop
of the driver’s vehicle. The plaintiffs also recorded traffic stops if they were the
backup officer responding to a traffic stop initiated by another trooper.

¶3 Upon learning of the plaintiffs’ practices, the Division initiated an
internal investigation. The plaintiffs complied with the investigation and
acknowledged that they had inflated the information recorded in their
respective activity logs. At the conclusion of the investigation, the plaintiffs
were disciplined for their conduct but continued their employment with the
Division.

¶4 The plaintiffs’ names were added to the “Laurie List” after they were
disciplined.1 A district court later determined, following an in camera review,
that the material in the plaintiffs’ personnel files was “not exculpatory, and did
not require disclosure for impeachment purposes.” Approximately one year
later, a county attorney notified the plaintiffs that their names were removed
from the “Laurie List.” However, more than ten years later, the plaintiffs “heard
rumors” that their names were reinstated on the “Laurie List.” Then, in
September 2021, the plaintiffs were notified that their names were in fact
included on the EES.2

1 See State v. Laurie, 139 N.H. 325, 327, 333 (1995) (overturning a defendant’s murder conviction

because the State failed to disclose certain employment records of a testifying detective that
“reflect[ed] negatively on the detective’s character and credibility”).

2 The New Hampshire Department of Justice currently maintains a list of police officers who have

engaged in conduct reflecting negatively on their credibility or trustworthiness. N.H. Ctr. for Pub.
Interest Journalism v. N.H. Dep’t of Justice, 173 N.H. 648, 651 (2020). The list, formerly known
as the “Laurie List,” is now called the Exculpatory Evidence Schedule. Id.; see RSA 105:13-d, I
(2023).

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 [¶5] In March 2022, the plaintiffs filed a complaint in superior court
seeking: (1) a declaration that their names are “not appropriate for inclusion on
the EES” pursuant to RSA 105:13-d; (2) a permanent injunction against the
New Hampshire Attorney General’s Office, also known as the New Hampshire
Department of Justice (DOJ), to remove their names from the EES; and (3) a
declaration that their due process rights under the New Hampshire and United
States Constitutions had been violated. Specifically, they claimed that “the
findings that were used to determine their initial placement and [reinstatement
on] the EES list were incorrect, misinterpreted, stale, and/or not serious
enough to warrant their names’ inclusion on the EES.” They also claimed that
their due process rights were violated when they were not afforded an
opportunity to challenge their placement on the EES.

¶6 The defendants, the New Hampshire Attorney General and the
Commissioner of the Department of Safety, moved to dismiss, arguing that the
conduct detailed in the plaintiffs’ complaint is potentially exculpatory evidence,
that the conduct does not warrant removal from the EES, and that the
plaintiffs were afforded adequate due process. The plaintiffs objected. In
October 2022, following a hearing, the trial court granted the defendants’
motion to dismiss, concluding that the plaintiffs’ conduct is potentially
exculpatory, that their placement on the EES is appropriate, and that the
plaintiffs had received adequate due process. This appeal followed.

II. EES Background

¶7 Before addressing the plaintiffs’ arguments on appeal, we briefly
review the background of the EES. See Duchesne v. Hillsborough County
Attorney, 167 N.H. 774, 777-80 (2015); Gantert v. City of Rochester, 168 N.H.
640, 645-47 (2016). The starting point for our analysis is the well-recognized
proposition that, in a criminal case, the State is obligated to disclose
information favorable to the defendant that is material either to guilt or to
punishment. Duchesne, 167 N.H. at 777; see Brady v. Maryland, 373 U.S. 83,
87 (1963) (“[T]he suppression by the prosecution of evidence favorable to an
accused upon request violates due process where the evidence is material
either to guilt or to punishment, irrespective of the good faith or bad faith of
the prosecution.”). The duty to disclose encompasses both exculpatory
information and information that may be used to impeach the State’s
witnesses, United States v. Bagley, 473 U.S. 667, 676 (1985); State v. Laurie, 139 N.H. 325, 327 (1995), and applies whether or not the defendant requests
the information, Bagley, 473 U.S. at 680-82; Laurie, 139 N.H. at 327.

¶8 The duty of disclosure falls on the prosecution. Petition of State of
N.H. (State v. Theodosopoulos), 153 N.H. 318, 320 (2006); Giglio v. United
States, 405 U.S. 150, 154 (1972). “‘This in turn means that the individual
prosecutor has a duty to learn of any favorable evidence known to the others
acting on the government’s behalf in the case, including the police.’”

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Duchesne, 167 N.H. at 778 (quoting Kyles v. Whitley, 514 U.S. 419, 437
(1995)). Favorable evidence is material under the federal standard only if there
is a reasonable probability that, had the evidence been disclosed to the
defense, the result of the proceeding would have been different. Duchesne, 167
N.H. at 778. A reasonable probability is a probability sufficient to undermine
confidence in the outcome. Id.

¶9 We stated in State v. Laurie that the New Hampshire Constitution
affords defendants greater protection than the federal standard and held that,
“[u]pon a showing by the defendant that favorable, exculpatory evidence has
been knowingly withheld by the prosecution, the burden shifts to the State to
prove beyond a reasonable doubt that the undisclosed evidence would not have
affected the verdict.” Laurie, 139 N.H. at 330. This standard does not require
that the prosecutor disclose everything that might influence a jury, or that the
defendant be provided a complete discovery of all investigatory work or an
examination of the State’s complete file. Id. In Laurie, we held that the
prosecution’s failure to disclose exculpatory evidence violated the defendant’s
due process rights under the New Hampshire Constitution, and we ordered a
new trial. Id. at 327, 333.

¶10 The circumstances before us in Laurie demonstrated the need for
prosecutors and law enforcement agencies to share information that pertains to
police officers who may appear as witnesses for the prosecution. Duchesne,
167 N.H. at 779. “Since Laurie, prosecutors in New Hampshire have developed
‘procedures and regulations . . . to carry [the prosecutor’s] burden and to
insure communication of all relevant information on each case to every lawyer
who deals with it.’” Id. (quoting Kyles, 514 U.S. at 438). One aspect of these
procedures is the creation of so-called “Laurie Lists.” Id. In 2004, the attorney
general placed responsibility on county attorneys to compile a confidential,
comprehensive list of officers in each county who are subject to possible Laurie
disclosures. N.H. Ctr. for Pub. Interest Journalism v. N.H. Dep’t of Justice,
173 N.H. 648, 653-54 (2020). Although prosecutors may use “Laurie Lists” as
a tool to identify information about police officers whose personnel files contain
information that is subject to possible disclosure, the duty to disclose evidence
favorable to a defendant, including both exculpatory evidence and
impeachment evidence, is of constitutional magnitude, see Laurie, 139 N.H. at
327-30, and exists independent from the maintenance of such lists.

¶11 In 2017, the attorney general updated the “Laurie List” procedure
and, for the first time, created the state-wide EES maintained by the DOJ.
N.H. Ctr. for Pub. Interest Journalism, 173 N.H. at 654. In 2021, the
legislature amended RSA chapter 105 by adding RSA 105:13-d, which
addresses an officer’s placement on the EES. See Doe v. Attorney General, 175
N.H. 349, 355 (2022); Laws 2021, 225:2. RSA 105:13-d, I, states that:

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 The [DOJ] may voluntarily maintain an [EES]. The [EES] 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 [EES] may be maintained by the [DOJ] and
shall be a public record subject to RSA 91-A.

¶12 Officers whose names were added to the EES prior to the
enactment of RSA 105:13-d may challenge their placement on the EES by filing
a lawsuit in superior court. See RSA 105:13-d, II(a)-(c). RSA 105:13-d, II(d)
states, in relevant part, that “individuals and corresponding information on the
[EES] shall be made public, except for any individual with a pending legal
action regarding the officer’s placement on the [EES].” RSA 105:13-d, II(d).
However, “[o]nce the pending action has concluded with a final order, after
exhausting any applicable appellate rights, 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].” Id. RSA 105:13-d, II(e)
also provides that once an officer has completed his or her employer’s grievance
process and has exhausted all available appellate rights, “then the officer’s
placement on the [EES] shall become permanent.”

III. Analysis

¶13 When reviewing a trial court’s ruling on a motion to dismiss, we
consider whether the allegations in the pleadings are reasonably susceptible of
a construction that would permit recovery. N.H. Ctr. for Pub. Interest
Journalism, 173 N.H. at 652. We assume the pleadings to be true and
construe all reasonable inferences in the light most favorable to the plaintiffs.
Id. We then engage in a threshold inquiry that tests the facts in the complaint
against the applicable law. Id. We will uphold the granting of a motion to
dismiss if the facts pled do not constitute a basis for legal relief. Barufaldi v.
City of Dover, 175 N.H. 424, 427 (2022).

¶14 The plaintiffs advance numerous challenges to the trial court’s
dismissal of their complaint, primarily disputing the court’s finding that their
conduct is potentially exculpatory and, as a result, that their inclusion on the
EES is appropriate pursuant to RSA 105:13-d. They assert that because the
conduct is over twenty years old, any relevance it may have once had “has long
since dissipated.” Additionally, the plaintiffs maintain that their conduct was
not “fraudulent” and that the Division’s finding “was simply a difference in the
interpretation of what constituted a ‘motor vehicle stop’ for the purposes of
recording on their weekly duty reports.” While the plaintiffs admit that they
recorded traffic stops improperly, they maintain that “there was nothing illegal
about their actions, nor did their actions violate any defendants’ rights.”
Moreover, although they concede in their complaint that they “inflated their

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enforcement action on the activity logs,” they do not admit to doing so
knowingly. Cf. Gantert, 168 N.H. at 647-51 (finding grounds existed for
keeping the name of a law enforcement officer on the “Laurie List” who
supplied answers on a Lethality Assessment Protocol form that he knew he had
no basis to believe were true). The defendants, on the other hand, respond
that the plaintiffs “have alleged a set of facts that demonstrate they knowingly
reported false information and have thus alleged facts sufficient to show that
their general credibility is compromised.”

¶15 The parties’ arguments turn on the standard by which conduct is
deemed “potentially exculpatory,” which, in turn, determines whether an
officer’s placement on the EES is appropriate. See RSA 105:13-d, I. Because
determining whether the plaintiffs’ conduct is “potentially exculpatory” requires
interpreting RSA 105:13-d, our review is de novo. See Doe, 175 N.H. at 352.
We first look to the language of the statute itself, and, if possible, construe that
language according to its plain and ordinary meaning. Id. We interpret the
statute as written and will not consider what the legislature might have said or
add language that the legislature did not see fit to include. Id. The legislature
is presumed neither to waste words nor enact redundant provisions and,
whenever possible, every word of a statute should be given effect. Id. We
construe all parts of a statute together to effectuate its overall purpose and to
avoid an absurd or unjust result. Id. Moreover, we do not consider words and
phrases in isolation, but rather within the context of the statute as a whole. Id.

¶16 As relevant here, RSA 105:13-d, I, provides that the EES “shall
consist of a list of all current or former law enforcement officers whose
personnel information contain potentially exculpatory evidence.” Once an
officer is added to the EES, his or her name and corresponding information will
be made public unless, “[i]n a matter in which the [DOJ] is a party, a court
issues an order finding that the underlying conduct 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). Because RSA 105:13-d, I, makes the EES publicly available,
“[t]he interests served by [the legislature’s] decision to provide [an officer] with a
court hearing before publicizing his listing on the EES are obvious.” Doe v.
Town of Lisbon, 78 F.4th 38, 47 (1st Cir. 2023). “The list is valuable to the
state and to the public only if it is accurate, and ensuring that listings are
thoroughly vetted before being publicized directly furthers that end.” Id.

¶17 We interpret RSA 105:13-d to effectuate its overall purpose, which
requires a balancing of the competing interests of prosecutors in meeting their
obligations under Brady v. Maryland and officers in protecting their
reputations. Indeed, as we observed in Duchesne v. Hillsborough County
Attorney, “inclusion on the ‘Laurie List’ carries a stigma,” and “police officers
have a weighty countervailing interest in insuring that their names are not
placed on the list when there are no proper grounds for doing so.” Duchesne,

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167 N.H. at 782-83. To accommodate the competing interests at stake, “basic
fairness demands that courts not invariably defer to the judgment of
prosecutors with respect even to the threshold issue of what kind of adverse
information should result in an officer’s placement on a ‘Laurie List.’” Id. at
783.3

¶18 Because the term “potentially exculpatory” is not defined in RSA
chapter 105, we look to its common usage, using the dictionary for guidance.
See Bedford Sch. Dist. v. State of N.H., 171 N.H. 246, 250 (2018). Black’s Law
Dictionary defines “potential” as “[c]apable of coming into being; possible if the
necessary conditions exist.” Black’s Law Dictionary 1413 (11th ed. 2019). In
Brady, the United States Supreme Court held that the State is obligated to
disclose evidence that is favorable to an accused that is material either to guilt
or to punishment, see Brady, 373 U.S. at 87, and in Bagley, the Court clarified
that the disclosure obligation includes both impeachment evidence and
exculpatory evidence, Bagley, 473 U.S. at 676. “Favorable evidence includes
that which is admissible, likely to lead to the discovery of admissible evidence,
or otherwise relevant to the preparation or presentation of the defense.” State
v. Dewitt, 143 N.H. 24, 33 (1998). Therefore, taking the definitions referenced
above together with the United States Supreme Court’s explanation of
exculpatory evidence as set forth in Brady, we hold 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.

¶19 The plaintiffs argue that an officer’s name should be removed from
the EES after ten years have passed from the date of the conduct which led to
the officer being added to the list, provided there are no further incidents
bearing upon the officer’s general credibility. As support for this proposition,
they rely upon New Hampshire Rules of Evidence 608 and 609, which address
the admission of character evidence and impeachment by evidence of a prior
criminal conviction respectively. Because Rule 609(b) imposes a heightened
standard for admitting evidence of a prior criminal conviction as impeachment
evidence when the conviction is more than ten years old, the plaintiffs argue
that similar considerations should be made in assessing the materiality,

3 The dissent does not address the reputational interests police officers possess with respect to

their inclusion on the EES or our mandate set forth in Duchesne that courts should not
invariably defer to the judgment of prosecutors. Instead, the dissent asserts that “[t]he net to
be cast is broad” and implies that the interpretation of “potentially exculpatory” should be
coextensive with a prosecutor’s Brady obligation to disclose evidence favorable to an accused.
As we previously observed, a prosecutor’s Brady obligation is independent from the DOJ’s
voluntary maintenance of the EES. Our colleague’s construction also does not consider the
purpose of the legislature’s decision to provide an officer with a court hearing before publicizing
his or her name on the EES. If the EES net is to be cast as broadly as the dissent suggests, a
court hearing would be meaningless.

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relevance, and probative value of “potentially exculpatory evidence” pursuant to
RSA 105:13-d. See N.H. R. Ev. 609(b) (providing that evidence of a prior
criminal conviction that is more than ten years old is admissible as
impeachment evidence only if its probative value substantially outweighs its
prejudicial effect). The defendants disagree, arguing that the plaintiffs’
evidentiary arguments conflate the admissibility of evidence with the
constitutional obligation to disclose exculpatory evidence.

¶20 Although the defendants correctly note 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 agree with the plaintiffs 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. 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 be
inappropriate.

¶21 For example, in Duchesne, the plaintiffs’ names were added to the
“Laurie List” after the Manchester police chief found that the plaintiffs had
violated several departmental policies, including “unnecessary use of force”
during an off-duty altercation at a bar. Duchesne, 167 N.H. at 775. We
explained that, even if the unnecessary use of force allegations were true,
evidence of the incident from which they arose, without more, would not be
admissible to impeach the plaintiffs’ general credibility because an instance of
unnecessary use of force is not probative of the plaintiffs’ character for
truthfulness. Id. at 784. Although the admissibility of evidence at trial does
not mark the bounds of the prosecutor’s disclosure obligations, whether or not
evidence is admissible has a “strong bearing on the propriety of maintaining
the officer’s name on a list that is used as the basis for automatically disclosing
the information to the trial court or the defendant in any case in which the
officer may testify.” Id. Accordingly, we held that the officers’ names should be
removed from the “Laurie List.” Id. at 785.

¶22 Therefore, in any particular case, 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 and thus
subject to Brady disclosures. See id. at 784; cf. Laurie, 139 N.H. at 330
(explaining that prosecutors are not required to “disclose everything that might
influence a jury, or that the defendant be provided a complete discovery of all
investigatory work or an examination of the State’s complete file”). Similarly,
such considerations should factor into the determination of whether specific
conduct is potentially exculpatory for the purposes of RSA 105:13-d.

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 [¶23] Turning to the case now before us and accepting the plaintiffs’
allegations as true, we conclude that the limited record fails to establish
whether the plaintiffs’ conduct is “potentially exculpatory” under RSA 105:13-
d. While the plaintiffs acknowledged that they “inflated” the number of stops
recorded on their activity logs, that acknowledgement leaves open the
possibility that the plaintiffs’ conduct was the result of their interpretation of
the policy, albeit one not shared by the Division. If, as the plaintiffs posit, their
conduct represented a mistaken interpretation of reporting requirements, their
conduct may not reflect negatively on the plaintiffs’ general credibility or
trustworthiness. As previously observed, the nature of the conduct is a
relevant factor for the trial court to consider in determining whether
information in an officer’s personnel file is “potentially exculpatory.” Thus, at
this stage of the litigation, viewing the allegations in the light most favorable to
the plaintiffs, we conclude that, based upon the record before us, it cannot be
determined that the plaintiffs knowingly submitted activity logs with false
information or that the plaintiffs acted dishonestly. Accordingly, we hold that
it was error for the trial court to grant the defendants’ motion to dismiss, and
we remand for further proceedings consistent with this opinion.

¶24 On remand, to determine whether the information in the plaintiffs’
personnel files is “potentially exculpatory,” RSA 105:13-d, I, the trial court
should consider whether there is a reasonably foreseeable case in which the
information would be admissible as exculpatory evidence or could be used to
impeach the plaintiffs’ credibility. The trial court should weigh, among the
factors it deems appropriate, the age and nature of the conduct to determine
the possible relevance such information may have in a future criminal case.

IV. Conclusion

¶25 In conclusion, we reverse the trial court’s order granting the
defendants’ motion to dismiss and remand for further proceedings consistent
with this opinion to determine whether the plaintiffs’ conduct is potentially
exculpatory.

Reversed and remanded.

BASSETT and COUNTWAY, JJ., concurred; MACDONALD, C.J.,
dissented; HICKS, J., sat for oral argument but did not participate in the final
vote, see N.H. CONST. pt. II, art. 78; HANTZ MARCONI, J., sat for oral
argument but did not participate in the final vote.

MACDONALD, C.J., dissenting.

¶26 I have two primary concerns with the majority opinion. First, it
sets aside the plain language of RSA 105:13-d, I (2013), and creates a new and
problematic standard for evidence to be included on the Exculpatory Evidence

9
Schedule (EES). Second, I find no error with the trial court’s conclusion that
the plaintiffs’ admitted conduct is potentially exculpatory. For the reasons set
forth more completely below, I respectfully dissent.

I.

¶27 I begin with the standard set forth by the majority. The operative
term governing inclusion on the EES involves evidence that is “potentially
exculpatory.” RSA 105:13-d, I. The majority recites, but then ultimately
disregards, the plain meaning of “potential.” (defining “potential” as “[c]apable
of coming into being; possible if the necessary conditions exist” (quotation
omitted)). To be sure, a faithful application of the statute’s language results in
a standard for inclusion on the EES that is, without doubt, broad.

¶28 The effect of the majority opinion is to narrow that definition. The
actual holding of the case is that potentially exculpatory evidence is “evidence
that is reasonably capable of being material to guilt or innocence.” (Emphasis
added.) “Reasonably capable” is different than “capable.” In applying this
narrowed standard, the majority suggests that trial courts should consider
factors used to determine ultimate admissibility of evidence, thus narrowing
the standard even more. Specifically, a court should consider the “age of the
conduct,” whether the conduct would be admissible due to the “passage of a
significant length of time or some other factor weighing on the conduct’s
relevance,” and the conduct’s “materiality to an officer’s general credibility.”

¶29 The majority’s gloss on “potentially exculpatory” raises multiple
concerns. First, the breadth of the statutory definition as written reflects a
policy determination by the legislature. Such a determination is reserved for
the legislature. Doe v. Comm’r, N.H. Dep’t of Health & Human Servs., 174 N.H.
239, 260 (2021). The majority undermines that policy determination by
adopting a narrower standard for inclusion.

¶30 Second, it is not at all apparent why, for example, the “age of the
conduct” or the “passage of a significant length of time” may render evidence
not potentially exculpatory. I am unaware of any legal basis to impose an
expiration date on the potentially exculpatory fact that, for instance, an officer
lied.

¶31 Third, the majority directs a trial court interpreting RSA 105:13-d,
I, to assess “whether there is a reasonably foreseeable case in which the
information would be admissible.” This approach invites boundless
speculation about hypothetical permutations of facts that may exist under any
case brought under any of the crimes defined by the Criminal Code. That
effectively renders the analysis one of determining whether the evidence is
actually admissible in a hypothetical case under hypothetical facts, as opposed
to whether the evidence is potentially exculpatory with admissibility to be

10
determined in an actual case. I respectfully suggest that the analysis the
majority vests in the trial court is not only contrary to the statute, but will
prove to be unworkable.

¶32 Finally, the majority’s narrowing of “potentially exculpatory”
evidence might lead to confusion over a prosecutor’s constitutional obligation
to disclose. It should not. A prosecutor must disclose “evidence favorable to
an accused.” Brady v. Maryland, 373 U.S. 83, 87 (1963); see State v. Dewitt, 143 N.H. 24, 33 (1983) (Part I, Article 15 of the New Hampshire Constitution
“imposes on the prosecutor the duty to disclose evidence favorable to the
accused where the evidence is material either to guilt or to punishment”
(quotation omitted)). The net to be cast is broad. See State v. Etienne, 163
N.H. 57, 88 (2011) (Favorable evidence is evidence that is “admissible . . . or
otherwise relevant to the preparation or presentation of the defense . . . .
Favorable evidence may include impeachment evidence.” (quotations and
citations omitted)); State v. Dukette, 113 N.H. 472, 477 (1973) (“When there is
substantial room for doubt, the prosecution is not to decide for the court what
is admissible or for the defense what is useful.” (quotation omitted)); see also
Roe v. Lynch, 997 F.3d 80, 85 (1st Cir. 2021) (“[D]iscouraging broad disclosure
is contrary to the Supreme Court’s recognition that a prudent prosecutor
should err in favor of disclosure under [Brady v. Maryland].”). The standard
set forth by the majority today applies only to disclosure under RSA 105:13-d,
I, not to a prosecutor’s constitutional obligation to disclose.

II.

¶33 There is no legal error in the trial court’s conclusion that the
plaintiffs’ conduct is “potentially exculpatory” and, therefore, the court
correctly granted the defendants’ motion to dismiss. In their complaint, the
plaintiffs allege that, following an investigation, they were disciplined for having
“inflated their enforcement action” on state police documents. In other words,
reports of their enforcement activity were inaccurate.

¶34 “Inflat[ing]” entries on an official state police document is “enough
of a reflection on the plaintiff[s’] general credibility to trigger at least a
prosecutor’s obligation to disclose such information to a court for in camera
review in a case in which the plaintiff will appear as a state witness.” Gantert
v. City of Rochester, 168 N.H. 640, 650 (2016) (emphasis omitted). The grist of
law enforcement is report writing. A report is how an officer memorializes his
or her activities, thus creating a record for future use, including in a
prosecution. Every step of the investigative process is carefully documented,
including crime scene processing, witness interviews, laboratory reports, and
analyses. Because such reports may become a basis for restricting an
individual’s liberty, it is essential to the integrity of the criminal justice system
that an officer’s reports are completely true and accurate. And, that is among
the reasons, as we have observed, law enforcement officers are held to a higher

11
standard and their conduct will be subject to greater scrutiny. See, e.g.,
Provenza v. Town of Canaan, 175 N.H. 121, 130-31 (2022).

¶35 Against this backdrop, the plaintiffs’ admitted conduct is
“potentially exculpatory” within the meaning of the statute. Whether it would
ever be admitted would, of course, be subject to the discretion of a judge
presiding over a criminal trial. By directing the trial court on remand in this
case to “weigh, among the factors it deems appropriate, the age and nature of
the conduct to determine the possible relevance such information may have in
a future criminal case,” the majority jumps to the ultimate question of
admissibility in a legal and factual vacuum. Such an approach is inconsistent
with RSA 105:13-d, I.

¶36 I respectfully dissent.

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