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e 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?

B. In Camera Review The defendant argues that the court “may have erred in failing to disclose material in the records it reviewed in camera” because its order references State v. Gagne, 136 N.H. 101 (1992), rather than State v. Girard, 173 N.H. 619 (2020), which clarified Gagne.

Absent some evidence to the contrary, we presume that the trial court was aware of Girard, and, accordingly, we conclude that by “applicable standards,” the court meant the standard announced in State v. Gagne, 136 N.H. 101 (1992), as clarified by Girard.

Following its review of the Community Partners records, the trial court determined that they did not meet the “‘essential and reasonably necessary’” test for disclosure, citing State v. Gagne, 136 N.H. 101 (1992).

First, the defendant argues that the court erred by reviewing the counseling records under State v. Gagne, 136 N.H. 101 (1992), instead of State v. Girard, 173 N.H. 619 (2020).

In State v. Gagne, 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.

The defendant argued in his motion that the trial court should “order the State to produce for in camera review” by the court the records from the counseling practice the victim attends because there is a reasonable probability that the records would “contain information that is relevant and helpful to the defense.” See State v. Gagne, 136 N.H. 101, 105 (1992) (stating that to obtain in camera review, a defendant must establish a reasonable probability that records contain information that is ma

ion for In Camera Review Before trial, the defendant filed a motion for in camera review of “information concerning any and all matters whereby force was used on an individual and involving any of the Salem Police officers involved in [his case]” and “information concerning any and all disciplinary actions regarding the Salem Police officers involved in [his case].” Citing State v. Gagne, 136 N.H. 101 (1992), the defendant argued that in camera review “is the appropriate method to be employed wh

A defendant’s request to obtain privileged records raises two distinct, but related, issues.

RSA 330-A:32 (2017) (amended 2019).2 Accordingly, to determine whether the psychotherapist- patient privilege must cede to due process considerations such that privileged records must be disclosed to a criminal defendant, the trial court must balance the confidentiality of such records against the defendant’s right to obtain evidence helpful to his defense.

generally State v. Gagne, 136 N.H. 101 (1992) (providing for in camera review of confidential records under certain circumstances).

A defendant has a constitutional right to materials, including otherwise privileged medical records, that are “essential and reasonably necessary to permit counsel to adequately cross-examine for the purpose of showing unreliability and bias.” State v. Gagne, 136 N.H. 101, 104 (1992) (quotation omitted).

“The defendant’s request for an in camera review of the victim’s counseling records is governed by State v. Gagne.” Id.; see State v. Gagne, 136 N.H. 101 (1992).

To trigger 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.” State v. Gagne, 136 N.H. 101, 105 (1992).

The court then ordered the disclosure of portions of the records in accordance with State v. Gagne, 136 N.H. 101 (1992).

The defendant argues that “[t]here is a long line of cases” beginning with State v. Gagne, 136 N.H. 101 (1992), “that recognize the authority of the [t]rial 3 [c]ourt to compel the production of potentially relevant and exculpatory evidence from a third party for its in camera review.” In Gagne, we set forth the process by which a defendant may obtain privileged information fo

The decision to review confidential records in camera is governed by State v. Gagne, 136 N.H. 101 (1992).

It stated that when dealing with discovery issues relating to privileged records, there is a two-prong approach to the issue.

W Prior to trial, the trial court conducted an in camera review of King’s counseling records.

The defendant’s request for an in camera review is governed by State v. Gagne, 136 N.H. 101 (1992).

Based upon these assertions, the defendant asked the court to order the State “to produce counseling and psychiatric records of [the victim] from December 2003.” The trial court denied the defendant’s motion on the ground that the defense had “not made the requisite showing under [State n Gagne, 136 N.H. 101 (1992)].” On appeal, the defendant argues that the trial court erred because he “made the threshold showing required for in camera review of the records that existed as of February 2006...

“Before establishing essential need for the information contained in the privileged records, however, the party seeking to pierce the privilege must first ‘establish a reasonable probability that the records contain information that is material and relevant to’ the party’s defense or claim.” Desclos, 153 N.H. at 616 (quoting State v. Gagne, 136 N.H. 101, 105 (1992)).

Desclos, 153 N.H. at 616, 903 A.2d 952 (quoting State v. Gagne, 136 N.H. 101, 105, 612 A.2d 899 (1992)).

Before establishing essential need for the information contained in the privileged records, however, the party seeking to pierce the privilege must first “establish a reasonable probability that the records contain information that is material and relevant to” the party’s defense or claim.

State v. Gagne, 136 N.H. 101, 105 (1992); see Amirault, 149 N.H. at 544.

There *762 may be unprotected, relevant material in the file; however, Hartford must establish reasonable probability that the file contains such information in order to trigger in camera review.

Defendant Carta also argues that before confidential medical records can be disclosed, the State must demonstrate a reasonable probability that the information sought exists within the material requested.

Although “[t]he threshold showing necessary to trigger an in camera review is not unduly high[,] [t]he defendant must meaningfully articulate how the information sought is relevant and material to his defense.” State v. Graham, 142 N.H. 357, 363 (1997); see also State v. Gagne, 136 N.H. 101, 105 (1992).

In order to trigger an in camera review of confidential or privileged records, a defendant must establish a “reasonable probability that the records contain information that is material and relevant to his defense.” State v. Gagne, 136 N.H. 101, 105 (1992).

State v. Gagne, 136 N.H. 101, 105 (1992) (providing for review of privileged or confidential records where defendant has established reasonable probability that the records contain information that is material and relevant to his defense).

If the trial court discovers evidence that the defendant could have used at trial which would have affected the verdict, it should order a new trial.

After a hearing, the motion was denied because the defendant made an insufficient showing under State v. Gagne, 136 N.H. 101, 105 (1992).

“[I]n 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 relevánt to his defense.” State v. Gagne, 136 N.H. 101, 105, 612 A.2d 899, 901 (1992).

Therefore, the defendant argues, he was entitled to have the trial court review the victim’s counseling records, if they exist, to determine whether they contain evidence that is material and relevant to his defense.

State v. Gagne, 136 N.H. 101, 105-06, 612 A.2d 899, 901 (1992); State v. Cressey, 137 N.H. 402, 413, 628 A.2d 696, 703-04 (1993).

A defendant is entitled to an in camera review of confidential or privileged records if the defendant establishes a reasonable probability that the records contain information relevant and material to his defense.

The defendant’s request for in camera review is governed by State v. Gagne, 136 N.H. 101, 612 A.2d 899 (1992).

In Camera Revieio Finally, the defendant appeals the trial court’s denial of his pretrial motion for in camera review of DCYF records pertaining to the victim.

He contends that the Superior Court (Groff, J.) erred: (1) in refusing his requests to admit evidence of prior sexual activity of the victim and for a hearing pursuant to State v. Howard, 121 N.H. 53, 426 A.2d 457 (1981); (2) in ruling that the defendant had not met his burden under State v. Gagne, 136 N.H. 101, 612 A.2d 899 (1992), to trigger in camera review of the victim’s post-assault counseling records; and (3) by admitting into evidence a portion of a letter that did not meet the threshold

The defendant also argues, among other things, that the trial court failed to properly apply the standard of State v. Gagne, 136 N.H. 101, 105, 612 A.2d 899, 901 (1992), to his request for access to certain medical records, that the evidence was insufficient to support his conviction, and that the county attorney made several improper comments during the course of the trial.

denied, 444 U.S. 844 (1979); cf. Dept. of Air Force v. Rose, 425 U.S. 352, 374 (1976) (concluding that FOIA provision for redaction of some material “was added explicitly to authorize in camera inspection”); State v. Gagne, 136 N.H. 101, 105, 612 A.2d 899, 901 (1992) (in camera review used as a step between partial disclosure and total nondisclosure of confidential records).

We have not yet had occasion to interpret the probable cause standard of this statute and look for guidance to State v. Gagne, 136 N.H. 101, 612 A.2d 899 (1992).

A defendant seeking such in camera review first “must establish a reasonable probability that the records contain information that is material and relevant to his defense.” State v. Gagne, 136 N.H. 101, 105, 612 A.2d 899, 901 (1992).

Petition of Keene Sentinel, 136 N.H. 121, 129-30, 612 A.2d 911, 916 (1992); State v. Gagne, 136 N.H. 101, 104-05, 612 A.2d 899, 901 (1992).

Discovery by a criminal defendant of material in a DCYS file is controlled by State v. Gagne, 136 N.H. 101, 612 A.2d 899 (1992).

As a reading of State v. Gagne, 136 N.H. 101, 612 A.2d 899 (1992), makes clear, this is a distinction without a difference.