State v. Zarella

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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Belknap
Case No. 2024-0066
Citation: State v. Zarella, 2025 N.H. 20

THE STATE OF NEW HAMPSHIRE

v.

GENE L. ZARELLA

Argued: November 7, 2024
Opinion Issued: May 1, 2025

Nixon Peabody LLP, of Manchester (David A. Vicinanzo, W. Daniel Deane,
Nathan P. Warecki, and Allison K. Regan on the brief, and David A. Vicinanzo
orally), for the complainant.

John M. Formella, attorney general, and Anthony J. Galdieri, solicitor
general (Anthony J. Galdieri and Sam M. Gonyea, assistant attorney general,
on the brief, and Anthony J. Galdieri orally), for the State.

Shaheen & Gordon, P.A., of Concord (William E. Christie and Lauren M.
Breda on the brief, and William E. Christie orally), for the defendant.
 Sulloway & Hollis, P.L.L.C., of Concord (Robert L. Best and Sarah S.
Murdough on the brief), for the New Hampshire Community Behavioral Health
Association, as amicus curiae.

Bernstein, Shur, Sawyer & Nelson, P.A., of Manchester (Hilary H.
Rheaume on the brief), for National Crime Victim Law Institute, New
Hampshire Coalition Against Domestic and Sexual Violence, Danu Center’s
Confidentiality Institute, National Network to End Domestic Violence, and
National Alliance to End Sexual Violence, as amici curiae.

Wadleigh, Starr & Peters PLLC, of Manchester (Jeffrey D. Odland and
Michael G. Eaton on the brief), for the New Hampshire Association of Criminal
Defense Lawyers, as amicus curiae.

DONOVAN, J.

¶1 The complainant, K.R., appeals an order of the Superior Court
(Ignatius, J.) denying her motion to quash the production of her counseling
and mental health records for in camera review. This interlocutory appeal
presents the following questions:

1. Does the constitutional right of an individual “to live free from
governmental intrusion in private or personal information,” N.H.
Const. Part I, Art. 2-B change the test applicable to disclosure of
an individual’s therapeutic, privileged mental health or sexual
assault counseling records for in camera review and, ultimately, to
a criminal defendant or does [State v. Gagne, 136 N.H. 101 (1992),]
remain the applicable test?

2. If the answer to question 1 is yes, and the constitutional
amendment changes the applicable test, then what is the
applicable test?

¶2 We conclude that Part I, Article 2-b of the State Constitution
abrogates our holding in State v. Cressey, 137 N.H. 402, 413 (1993), which
applied Gagne to records held by private organizations. We further conclude
that to obtain in camera review and disclosure of confidential or privileged
records held by private organizations, the defendant must follow the
procedures outlined in RSA 173-C:5 (2022) or, for records to which other

2
statutory privileges apply, demonstrate an essential need for the records.
Accordingly, we vacate the trial court’s order and remand.

I. Facts

¶3 We accept the statement of the case and facts as presented in the
interlocutory appeal statement and rely upon the record for additional facts as
necessary. See In the Matter of Liquidation of Home Ins. Co., 175 N.H. 363,
364 (2022). The defendant, Gene L. Zarella, is charged with four counts of
aggravated felonious sexual assault. See RSA 632-A:2, I(j), I(l), II (Supp. 2024).
Following his indictment, the defendant filed motions, to which the State either
assented or did not object, seeking production of the complainant’s confidential
counseling and hospitalization records for in camera review by the trial court.
The defendant also sought records from a 2009 New Hampshire Division for
Children, Youth and Families (DCYF) abuse and neglect investigation involving
prior allegations made by the complainant against the defendant. The Superior
Court (Leonard, J.) granted the motions and ordered production of the records.
The trial court then reviewed the records and found them to be discoverable
“under the applicable standards.”

¶4 The defendant subsequently moved for in camera review of
additional records. These requests sought information pertaining to the
complainant’s treatment from a number of private counseling, mental health,
and medical care providers between 2009 and the present. The defendant
argued, among other things, that “there is a reasonable probability that these
records contain additional undiscovered statements relative to [the
complainant’s] allegations.” Further, he asserted that statements made by the
complainant “in counseling about other claims of sexual abuse are discoverable
because these claims may either be demonstrably false or they may
demonstrate that [the complainant] is conflating another act of abuse and
claiming [the defendant] committed [acts of abuse] when someone else did.”
The trial court, noting the lack of objection by the State, granted the
defendant’s motion and issued orders for the production of the requested
records for in camera review.

¶5 The complainant, joined by one of the counseling providers whose
records the defendant sought (collectively, the intervenors), thereafter moved to
intervene and quash the orders for production. The intervenors asserted that,
because “[t]he records pertain to counseling, medical care and therapy”
provided to the complainant, “the privileges recognized in RSA 173-C, RSA 329-
B:26, RSA 330-A:32, and New Hampshire Rule of Evidence 503(b) apply.” In
addition, they claimed that “[b]esides her statutory privileges, [the complainant]
also enjoys a fundamental right to privacy under the recent Right to Privacy
Amendment to the New Hampshire Constitution.” See N.H. CONST. pt. I, art.
2-b. The intervenors requested that the trial court suspend its orders for
production and its review of the records already produced pending notice and a

3
hearing on the complainant’s constitutional right to privacy and statutory
privileges.

¶6 The Superior Court (Ignatius, J.) granted the motion to intervene
but, following a hearing, denied the motion to quash production of the
complainant’s counseling and mental health records for in camera review. The
trial court determined that “Article 2-b applies to a court’s in camera review of
counseling records,” and, therefore, the question is “how much protection
Article 2-b provides and, specifically, [whether] Article 2-b alter[s] the Gagne
framework.” See Gagne, 136 N.H. at 104-06 (establishing standard for
obtaining in camera review and disclosure of confidential or privileged records).
Although the trial court “acknowledge[d] that Article 2-b requires a
reassessment of the procedures for review and disclosure of an alleged victim’s
counseling records,” it declined to “dispense wholesale the historic precedent to
accommodate Article 2-b protections.” Accordingly, the trial court determined
that “the Gagne standard remains the appropriate standard of review” and
explained that “if the Court finds disclosure of records necessary, it will take
into account [the complainant’s] rights under Article 2-b.”

¶7 Applying Gagne, the trial court concluded that the defendant had
satisfied the standard to obtain in camera review because his “theory that [the
complainant] may have made additional exculpatory statements in counseling
is ‘based on more than bare conjecture’ and [the defendant] has presented a
‘plausible theory of relevance and materiality.’” The trial court reasoned that
the governmental intrusion of an in camera review would be minimal and the
defendant had sufficiently alleged that the complainant made inconsistent
statements regarding her allegations.

¶8 The complainant thereafter moved for interlocutory appeal of the
order denying her motion to quash. Over the defendant’s objection, the trial
court granted the motion for interlocutory appeal and transferred two
questions to this court.

II. Analysis

A. Question 1

¶9 The first question presented in this appeal asks whether the
adoption of Part I, Article 2-b of the State Constitution alters the showing a
defendant must make to obtain in camera review and disclosure of confidential
or privileged records. Because the counseling and medical records sought in
this case are not in the State’s possession, the parties’ arguments focus on the
standard for obtaining in camera review and disclosure of records held by
private organizations.

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 [¶10] We begin with a brief discussion of Gagne and its progeny, which
establish the standard a defendant must meet to obtain in camera review and
disclosure of confidential or privileged records. In Gagne, the defendant argued
that the trial court’s refusal to conduct an in camera review of confidential
records in the possession of DCYF violated his due process rights under Part I,
Article 15 of the State Constitution and the Fourteenth Amendment to the
Federal Constitution. Gagne, 136 N.H. at 102. We addressed two distinct but
related issues. Id. at 104. “The first issue is what showing must the defendant
make to the trial court in order to obtain a review of the privileged information.”
Id. “The second issue is what showing must the defendant make in order to
use the privileged information in the actual trial of his case, assuming the
review of the privileged information has revealed evidence that could be
potentially useful.” Id.

¶11 As to the first issue, we followed the United States Supreme Court’s
analysis in Pennsylvania v. Ritchie, 480 U.S. 39 (1987), and concluded that
due process considerations require trial courts to balance the State’s interest in
protecting the confidentiality of child abuse records against the defendant’s
right to obtain evidence helpful to his defense. Gagne, 136 N.H. at 105. We
recognized that trial courts, when determining whether an in camera review is
warranted, cannot realistically expect defendants to articulate the precise
nature of confidential records without having prior access to them. Id.
Therefore, we held that “in order to trigger an in camera review of confidential
or privileged records, the defendant must establish a reasonable probability
that the records contain information that is material and relevant to his
defense.” Id.

¶12 We have since explained that the “threshold showing necessary to
trigger an in camera review is not unduly high,” but a defendant “must
meaningfully articulate how the information sought is relevant and material to
his defense.” State v. Graham, 142 N.H. 357, 363 (1997). “To do so, he must
present a plausible theory of relevance and materiality sufficient to justify
review of the protected documents, cf. Ritchie, 480 U.S. at 58 n.15, but he is
not required to prove that his theory is true.” Id. “At a minimum, a defendant
must present some specific concern, based on more than bare conjecture, that,
in reasonable probability, will be explained by the information sought.” Id.
(quotation omitted); see also State v. Hoag, 145 N.H. 47, 50 (2000) (“In order to
trigger in camera review, the defendant must assert some factual basis beyond
the mere existence of counseling records.”).

¶13 Regarding the second issue, the standard a defendant must meet to
use privileged information at trial, Gagne reaffirmed our holding in State v.
Farrow, 116 N.H. 731, 733 (1976). See Gagne, 136 N.H. at 104-05. In Farrow,
we held that under the Sixth Amendment to the Federal Constitution, trial
courts must permit defendants to use privileged material if such material is
“essential and reasonably necessary to permit counsel to adequately cross-

5
examine for the purpose of showing unreliability and bias.” Farrow, 116 N.H.
at 732-33. Since deciding Gagne, we have clarified that “in reviewing the
records, the trial court must determine if material and relevant evidence is in
fact contained in the records.” State v. Girard, 173 N.H. 619, 628 (2020)
(quotation omitted).

¶14 Here, the parties’ arguments concern our decision in Cressey.
There, we addressed the issue of in camera review of privileged records only
after finding reversible error on separate grounds, and solely “in the interest of
judicial economy to the extent [the issue is] likely to arise again in a second
trial.” Cressey, 137 N.H. at 412-13. We concluded that, “in the event of a
retrial, the trial court must conduct an in camera review” of notes made during
counseling sessions by a privately employed psychologist “should the
defendant establish a reasonable probability that the [notes] contain
information relevant and material to his defense.” Id. at 413. We reasoned
that the standard established in Gagne applies equally to cases where a
defendant seeks in camera review of privileged records held by private third
parties as it does to cases where the records are in the government’s
possession. Id. As we explained:

Gagne did not distinguish between the privileged records of a State
agency and the privileged records of a private organization. The
rationale in Gagne, balancing the rights of a criminal defendant
against the interests and benefits of confidentiality, applies equally
in both cases. A record is no less privileged simply because it
belongs to a State agency. Likewise, a defendant’s rights are no
less worthy of protection simply because he seeks information
maintained by a non-public entity.

Id.

¶15 The complainant and the State argue that, in light of the adoption
of Part I, Article 2-b of the State Constitution, we should overrule this part of
Cressey, limit the application of Gagne to records in the State’s possession, and
adopt a heightened standard for obtaining in camera review and, ultimately,
disclosure of confidential or privileged records held by private organizations.
The defendant contends that Part I, Article 2-b does not alter the standard for
obtaining in camera review and disclosure and that the trial court correctly
concluded that Gagne, as clarified by Girard, remains the applicable standard.

¶16 Enacted in 2018, Part I, Article 2-b provides: “An individual’s right
to live free from governmental intrusion in private or personal information is
natural, essential, and inherent.” N.H. CONST. pt. I, art. 2-b. Article 2-b
creates a constitutional right to privacy. See id. This right is among the
“natural, essential, and inherent rights” enumerated in Part I, Article 2 of the
State Constitution. See N.H. CONST. pt. I, art. 2. Among those Article 2 rights

6
are “the enjoying and defending life and liberty; acquiring, possessing, and
protecting, property; and . . . seeking and obtaining happiness.” Id. As we
have previously recognized, the rights identified in Part I, Article 2 of the New
Hampshire Constitution “are not bestowed by that constitutional provision but
rather are recognized to be among the natural and inherent rights of all
humankind.” Burrows v. City of Keene, 121 N.H. 590, 596 (1981).

¶17 This appeal presents the first occasion for this court to address the
issue of Part I, Article 2-b’s application to in camera review of privileged or
confidential records in criminal proceedings. We have previously instructed
that trial courts, when considering whether to disclose privileged or
confidential records following an in camera review, should account for, among
other things, an individual’s rights under Part I, Article 2-b, if any. See State v.
Chandler, 176 N.H. 216, 233 (2023). However, we have not yet considered
whether, as the complainant and the State argue, Article 2-b mandates a
rebalancing of the rights that factored into our decision in Cressey.

¶18 The parties do not challenge the trial court’s determination that the
complainant’s counseling and mental health records “are indisputably ‘private
or personal information.’” Nor do they take issue with its statement that “a
court’s in camera review of those records to determine whether to disseminate
them to the prosecutor and defendant is ‘governmental intrusion’ because
otherwise a defendant would have no means to access those records.” (Quoting
N.H. CONST. pt. I, art. 2-b.) Accordingly, because the records sought here are
in the possession of private organizations, the question is whether Part I,
Article 2-b abrogates our holding in Cressey.

¶19 The complainant asserts that Cressey represents “a fundamental
misunderstanding of the state action doctrine” because it erroneously extended
Gagne’s holding to include records possessed by private — rather than public
— entities. The State agrees and argues that Cressey is either incorrect as a
matter of federal constitutional law or “disconcerting” as a matter of state
constitutional law. In the State’s view, “Cressey’s expansion of Gagne
incorrectly concluded that Ritchie and Gagne apply to records in the hands of
private actors, thereby undermining the counselor-patient relationship.”1

¶20 Both Gagne and Ritchie involved records in the government’s
possession. See Gagne, 136 N.H. at 102, 105; Ritchie, 480 U.S. at 43, 59-60;
see also State v. Pinder, 678 So. 2d 410, 414 (Fla. Dist. Ct. App. 1996) (“The
Ritchie due process analysis necessarily assumed that the Pennsylvania CYS

1 The defendant asserts that the complainant failed to sufficiently argue in the trial court that our

holding in State v. Cressey, 137 N.H. 402, 413 (1993), should be overruled and that the issue is
therefore not preserved for our review. However, based upon our review of the record, we
conclude that the complainant presented this issue to the trial court and that it therefore is
preserved for review.

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was a governmental agency subject to the obligation to disclose Brady
material.”). As a result, both cases implicated the prosecution’s “obligation to
turn over evidence in its possession that is both favorable to the accused and
material to guilt or punishment.” Ritchie, 480 U.S. at 57 (emphasis added); see
also State v. Laurie, 139 N.H. 325, 330 (1995) (“Upon 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.”
(emphasis added)). Gagne, following the United States Supreme Court’s
analysis under the Fourteenth Amendment to the Federal Constitution in
Ritchie, balanced “the State’s interest in protecting the confidentiality of child
abuse records against the defendant’s right to obtain evidence helpful to his
defense.” Gagne, 136 N.H. at 105-06. The due process considerations in
Gagne, like Ritchie, were premised upon the government possessing the
records sought. See id.

¶21 The question in Cressey, however, was the standard a defendant
must meet to access privileged records held by a private organization. See
Cressey, 137 N.H. at 413. Consequently, Cressey did not implicate the
prosecution’s constitutional obligation to disclose evidence in its possession
that is favorable to the defense. See id. “[W]hile the government has an
obligation to tender to the defense all exculpatory records in its possession, it
has no obligation to seek out such information from third parties.” United
States v. Hach, 162 F.3d 937, 947 (7th Cir. 1998); see also State v. Johnson,
990 N.W.2d 174, 183 (Wis. 2023) (“Ritchie simply does not apply to privately
held records.”). “[I]f the documents are not in the government’s possession,
there can be no ‘state action’ and consequently, no violation of [the] Fourteenth
Amendment.” Hach, 162 F.3d at 947. Accordingly, our conclusion in Cressey
was incorrectly premised upon the defendant’s right to due process.

¶22 Here, in a case factually analogous to Cressey, the defendant seeks
in camera review and disclosure of privileged or confidential records held by
private organizations. See Cressey, 137 N.H. at 413. However, our
reexamination of Cressey’s reasoning and consideration of the constitutional
right to privacy in Part I, Article 2-b compel a different analysis.

¶23 As we have explained, the defendant’s constitutional due process
right to disclosure of exculpatory evidence extends only to records in the
government’s possession. See Ritchie, 480 U.S. at 57. Therefore, the
defendant has no constitutional due process right to records in the possession
of private organizations. See Weatherford v. Bursey, 429 U.S. 545, 559 (1977)
(“There is no general constitutional right to discovery in a criminal case, and
Brady did not create one; as the Court wrote recently, the Due Process Clause
has little to say regarding the amount of discovery which the parties must be
afforded.” (quotation omitted)). “[T]he Supreme Court has construed due
process to demand only that when compulsory discovery is made available in a

8
criminal case, it must be provided to the defense on the same terms as it is to
the government.” State v. Heath, 129 N.H. 102, 109 (1986).

¶24 Further, after we decided Cressey, New Hampshire voters approved
Article 2-b, which recognizes the natural and inherent right to privacy “in
private or personal information.” N.H. CONST. pt. I, art. 2-b. There is no
dispute in the instant case that the complainant’s records are “private or
personal information” within the scope of Article 2-b’s right to privacy.

¶25 On balance, these considerations — the complainant’s fundamental
right to privacy, together with the absence of a due process right entitling the
defendant to the complainant’s privately held records — favor nonproduction
and nondisclosure. Accordingly, we conclude that Part I, Article 2-b abrogates
Cressey’s application of Gagne to cases in which the defendant seeks records
held by private organizations.

B. Question 2

¶26 In light of the foregoing, we must next determine the appropriate
standard for obtaining in camera review of confidential or privileged records in
the possession of private organizations. We note that neither the complainant
nor the State urge that this court adopt an absolute bar to obtaining privileged
records. The complainant argues that we should replace Cressey’s “two-step
balancing test with standards and processes respecting a private third party’s
fundamental privacy rights” and that “Article 2-b frees this Court to implement
existing statutory processes to resolve disputes concerning record disclosure.”
Both the complainant and the State assert that we should apply two standards
for obtaining in camera review depending upon the nature of the records
sought: the “substantial likelihood” standard for records privileged under RSA
chapter 173-C, and either an “essential need” standard or “the same standards
as are available for the attorney-client privilege” for mental health records
privileged under RSA 329-B:26 and RSA 330-A:32.

¶27 RSA 173-C:2 creates a privilege for “confidential communications
made by the victim to a sexual assault counselor or a domestic violence
counselor” and provides that such communications or records thereof “may be
disclosed only with the prior written consent of the victim.” RSA 173-C:2
(2022). RSA chapter 173-C defines “confidential communication” as
“information transmitted” between a victim of “an alleged sexual assault . . .
and a sexual assault or domestic violence counselor in the course of that
relationship and in confidence by means which, so far as the victim is aware,
does not disclose the information to a third person.” RSA 173-C:1, I (2022).
“Sexual assault counselor” is defined as “any person who is employed or
appointed or who volunteers in a rape crisis center” who renders certain
services and has completed the requisite training. RSA 173-C:1, V (2022); see
also RSA 173-C:1, IV (2022) (defining rape crisis center).

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 [¶28] The complainant and the State argue that the standard set forth in
RSA 173-C:5 for obtaining and disclosing records should apply to those records
privileged under RSA chapter 173-C. We agree. Pursuant to RSA 173-C:5
(2022), “a defendant [who] seeks information privileged under this chapter in
discovery or at trial” must file a written motion and affidavit “setting forth
specific grounds as to why discovery is requested and showing that there is a
substantial likelihood that favorable and admissible information would be
obtained through discovery or testimony.” RSA 173-C:5, I. “The only
information subject to discovery . . . are those statements of the victim which
relate to the alleged crime being prosecuted.” RSA 173-C:5, II.

¶29 As to the standard for using privileged records at trial, a defendant
seeking records privileged under RSA chapter 173-C must prove by a
preponderance of the evidence that: (1) the probative value of the information
sought “outweighs its prejudicial effect on the victim’s emotional or physical
recovery, privacy, or relationship with the counselor or the rape crisis or
domestic violence center”; (2) the information is “unavailable from any other
source”; and (3) “there is a substantial probability that the failure to disclose
that information will interfere with the defendant’s right to confront the
witnesses against him and his right to a fair trial.” RSA 173-C:5, III.

¶30 In addition to RSA chapter 173-C, the legislature has placed certain
“confidential relations and communications . . . on the same basis as those
provided by law between attorney and client.”2 RSA 329:26 (2017) (physician-
patient privilege); RSA 329-B:26 (2017) (psychologist-patient privilege); RSA
330-A:32 (Supp. 2024) (psychotherapist-patient privilege); see also N.H. R. Ev.
503. These privileges reflect the fact that much of what a physician,
psychologist, or psychotherapist learns from his or her patient may be both
embarrassing and of little real consequence to society. Cf. Petition of State of
N.H. (State v. MacDonald), 162 N.H. 64, 67 (2011).

¶31 However, we have recognized that confidential information
pertinent to criminal investigation and prosecution may be of significant
consequence to society in some circumstances. In re Grand Jury Subpoena
(Medical Records of Payne), 150 N.H. 436, 440 (2004). The proper
administration of justice requires that every reasonable effort be made to
search for the truth. Id. When construing the physician-patient privilege, for
example, we do so strictly and in recognition that the legislature did not intend
for the privilege to compromise the judicial function of ensuring the just

2 In the context of the attorney-client privilege, a communication is confidential if it is “not

intended to be disclosed to third persons other than those to whom disclosure is made in
furtherance of the rendition of professional legal services to the client or those reasonably
necessary for the transmission of the communication.” Prof. Fire Fighters of N.H. v. N.H. Local
Gov’t Ctr., 163 N.H. 613, 615 (2012) (quotation omitted). If the communicating person reasonably
believes that no one will learn the contents of the communication except a privileged person, then
the communication will be protected from disclosure. Id.

10
resolution of claims by giving one party the right to deprive another of relevant
information. Id. We are cognizant that the legislature designed the privilege
not to exclude relevant evidence, but simply to facilitate activities which require
confidence. Id. These privileges are not absolute, and there are generally two
means by which disclosure of privileged information may occur: (1) the court
finds a waiver of the privilege; or (2) the court orders a piercing of the privilege.
Petition of State of N.H. (State v. MacDonald), 162 N.H. at 69; see also RSA
329-B:26; RSA 330-A:32.

¶32 For records privileged under RSA 329-B:26 and RSA 330-A:32, the
complainant argues that “the same standards as are available for the attorney-
client privilege” should apply, whereas the State, citing the trial court’s analysis
in State v. Brown, counters that the “essential need” test should apply. See
State v. Javon Brown, No. 2020-CR-00483, at 15-17 (N.H. Super. Ct., Hills
Cnty.-N. Dist. Aug. 22, 2022). We agree with the State.

¶33 In Brown, the trial court, after considering the standards applicable
to piercing the privilege against self-incrimination, see State v. Winn, 141 N.H.
812, 814-15 (1997), the physician-patient privilege, see In re Search Warrant
(Med. Records of C.T.), 160 N.H. 214, 225 (2010), and the attorney-client
privilege, see McGranahan v. Dahar, 119 N.H. 758, 764 (1979), adopted an
“essential need” standard. Brown, No. 2020-CR-00483, at 16-17. To establish
an “essential need” for an individual’s privileged records, the defendant must
establish that the targeted information is unavailable from another source and
that there is a compelling justification for its disclosure. Brown, No. 2020-CR-
00483, at 16; see McGranahan, 119 N.H. at 764 (“The attorney-client privilege
may not be absolute when there is a compelling need for the information and
no alternative source is available.”).

¶34 The search for relevant evidence may constitute a compelling
justification. See In re Search Warrant (Med. Records of C.T.), 160 N.H. at 222.
However, the defendant must show that there is no reasonably available
alternative source for the information sought. Id. In determining whether a
reasonable alternative source is available such that the defendant can prepare
a defense without access to the individual’s privileged records, the court must
consider: (1) whether the alternative evidence is admissible at trial; (2) whether
the alternative evidence is sufficient to overcome a motion for directed verdict;
and (3) whether the defense has made adequate efforts to investigate
alternative sources. Brown, No. 2020-CR-00483, at 17; see In re Search
Warrant (Med. Records of C.T.), 160 N.H. at 222.

¶35 The defendant maintains that the trial court in the present case
correctly rejected the “essential need” standard. He reasons that because the
“essential need” test was derived from cases involving governmental intrusion
into private information “in a non-adversarial preindictment setting to pierce a
confidential privilege and gain unfettered access to an uncharged person’s

11
confidential information,” see, e.g., In re Search Warrant (Med. Records of
C.T.), 160 N.H. at 222, the test is inapposite here, where a criminal defendant
seeks review of confidential or privileged records during the pendency of his
case. We disagree. Our reasoning in cases that have applied an “essential
need” standard did not depend upon the context in which the assertion of the
privilege arose. See id. at 226 (“[O]ur established law governing piercing the
[physician-patient] privilege, concededly outside the warrant context, has
ultimately focused on ‘essential need.’”).

¶36 We therefore hold that, for records privileged under RSA 329-B:26
and RSA 330-A:32, a defendant must establish an essential need for the
records sought. To do so, a defendant must prove both that there is a
compelling justification for the disclosure of the records, and that the targeted
information is unavailable from another source. Brown, No. 2020-CR-00483,
at 16. To determine whether there is a reasonably available alternative source,
courts must consider: (1) whether the alternative evidence is admissible at
trial; (2) whether the alternative evidence is sufficient to overcome a motion for
directed verdict; and (3) whether there has been an adequate effort to
investigate alternative sources. Id. at 17; see In re Search Warrant (Med.
Records of C.T.), 160 N.H. at 222. Of course, if the legislature disagrees with
our analytical standards for piercing the privileges codified in RSA 329-B:26
and RSA 330-A:32, it is free, within constitutional limits, to amend those
statutes as it deems fit. See State v. Van Uden, 176 N.H. 772, 780 (2024),
2024 N.H. 47, ¶21.

¶37 Finally, the State argues that courts must provide notice to
individuals whose confidential or privileged records are sought by defendants
in criminal proceedings. Such notice is necessary, the State contends, to
afford victims and other witnesses the opportunity to protect their
constitutional right to privacy under Article 2-b and assert statutory privileges.
We agree. This notice requirement is consistent with the legislature’s
pronouncement of the rights of crime victims. See RSA 21-M:8-k, II (Supp.
2024) (rights of crime victims include, inter alia, “[t]he right to be informed
about the criminal justice process and how it progresses” and “[t]he right to
reasonable and timely notice of all court proceedings”). Accordingly, we
exercise our supervisory power to provide guidance to trial courts and parties
as to a uniform and fair process to be applied in future cases. See In re Search
Warrant (Med. Records of C.T.), 160 N.H. at 226; see also State v. Barnett, 147
N.H. 334, 337 (2001) (electing “to exercise supervisory jurisdiction over our
trial courts to ensure the fair administration of justice”); Boody v. Watson, 64
N.H. 162, 169-70 (1886) (noting that Supreme Court has broad and
comprehensive supervisory powers). Henceforth, when a defendant seeks a
court order requiring production and disclosure of an individual’s confidential
or privileged records, notice and an opportunity to object must be provided to
the individual whose records are sought. Once the trial court has considered

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the parties’ arguments and any objection made by the individual whose records
are sought, the trial court may then rule on the defendant’s motion.

III. Conclusion

¶38 In sum, we conclude that Part I, Article 2-b abrogates our holding
in Cressey, and the Gagne standard does not apply to confidential or privileged
records held by private organizations. We further conclude that the procedure
outlined in RSA 173-C:5 applies when a defendant seeks records privileged
under RSA chapter 173-C, and the essential need standard applies when a
defendant seeks records privileged pursuant to RSA 329-B:26 and RSA 330-
A:32. We also conclude that notice and an opportunity to object must be
provided to the individual whose records are the subject of a defendant’s
motion. Accordingly, we vacate the order denying the complainant’s motion to
quash and remand for further proceedings consistent with this opinion.

Vacated and remanded.

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

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