8/19/2020 New Hampshire Updates Guidance Concerning the Exculpatory Evidence Schedule | Governor Christopher T. Sununu
https://www.governor.nh.gov/news-and-media/new-hampshire-updates-guidance-concerning-exculpatory-evidence-schedule 1/3
New Hampshire Updates Guidance Concerning the Exculpatory
Evidence Schedule
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Press ReleaseFor Immediate Release
April 30, 2018
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New Hampshire GOVERNOR CHRIS SUNUNU
""1>.t ~-~~ o·• 9 '
8/19/2020N
ew H
ampshire U
pdates Guidance C
oncerning the Exculpatory Evidence Schedule | Governor C
hristopher T. Sununu
https://ww
w.governor.nh.gov/news-and-m
edia/new-ham
pshire-updates-guidance-concerning-exculpatory-evidence-schedule2/3
Co
nco
rd, N
H - To
da
y, Go
ve
rno
r Ch
ris Su
nu
nu, A
ttorn
ey G
en
era
l Go
rdo
n M
acD
on
ald, N
ew
Ha
mp
shire
Po
lice
Asso
cia
tion
Pre
side
nt P
atric
k
Ch
ee
tha
m, a
nd
Ste
ve
Arn
old
from
the
Ne
w E
ng
lan
d P
olic
e B
en
evo
len
t Asso
cia
tion
an
no
un
ce
d a
n u
pd
ate
to th
e D
ep
artm
en
t of J
ustic
e's
gu
ida
nce
co
nce
rnin
g th
e E
xcu
lpa
tory
Evid
en
ce
Sch
ed
ule
(EE
S), c
om
mo
nly
refe
rred
to a
s 'La
urie
List.'
Go
ve
rno
r Ch
ris S
un
un
u s
aid
of to
da
y's
an
no
un
ce
me
nt:
"Th
e n
ew
gu
ida
nce
be
ing
issue
d to
da
y re
pre
sen
ts a m
ajo
r step
in re
storin
g fu
ll du
e p
roce
ss for o
ur m
en
an
d w
om
en
in la
w e
nfo
rce
me
nt.
Ou
r me
n a
nd
wo
me
n in
law
en
forc
em
en
t pu
t the
ir live
s on
the
line
eve
ry d
ay. T
he
y p
rote
ct e
ach
of u
s. Th
ey p
rote
ct o
ur fa
milie
s. An
d th
ey
pro
tect o
ur m
ost b
asic
righ
ts.
"It is time
tha
t we
do
ou
r pa
rt in p
rote
ctin
g th
eirs. In
the
se c
ha
llen
gin
g tim
es, w
ith o
ur S
tate
in th
e m
idst o
f an
op
ioid
crisis, w
e m
ust g
ive
law
en
forc
em
en
t eve
ry to
ol p
ossib
le to
aid
in th
eir e
�o
rts. An
d m
ore
imp
orta
ntly, w
e m
ust e
nsu
re th
at la
w e
nfo
rce
me
nt k
no
w th
at th
ey
ha
ve
ou
r sup
po
rt. Th
at is w
ha
t tod
ay is a
ll ab
ou
t. Eve
ryo
ne
ag
ree
s tha
t ba
d c
op
s sho
uld
be
take
n o
� th
e stre
et. B
ut o
ur m
en
an
d w
om
en
in la
w e
nfo
rce
me
nt d
ese
rve
the
be
ne
�t o
f the
do
ub
t, an
d th
ey d
ese
rve
the
sam
e ro
bu
st du
e p
roce
ss pro
tectio
ns a
s an
y c
rimin
al
de
fen
da
nt w
ou
ld h
ave
in c
ou
rt. Tod
ay's n
ew
gu
ida
nce
from
the
Atto
rne
y G
en
era
l will e
nsu
re th
at e
ach
an
d e
ve
ry o
�ce
r ha
s cle
ar d
ue
pro
ce
ss righ
ts tha
t the
y c
an
rely
on."
Atto
rne
y G
en
era
l Go
rdo
n M
acD
on
ald
sa
id to
da
y:
"Tod
ay, m
y o
�ce
is issuin
g a
dd
ition
al g
uid
an
ce
to a
ll law
en
forc
em
en
t ag
en
cie
s an
d c
ou
nty
atto
rne
ys c
on
ce
rnin
g th
e E
xcu
lpa
tory
Evid
en
ce
Sch
ed
ule, o
r EE
S. O
n M
arc
h 2
1, 20
17, Atto
rne
y G
en
era
l Fo
ster issu
ed
a m
em
ora
nd
um
esta
blish
ing
the
EE
S a
nd
settin
g fo
rth
ce
rtain
pro
toco
ls. Th
e E
ES
�o
ws fro
m th
e fu
nd
am
en
tal p
rincip
le u
nd
erg
irdin
g th
e c
rimin
al ju
stice
syste
m th
at a
pro
secu
tor m
ust in
form
a
crim
ina
l de
fen
da
nt o
f an
y e
xcu
lpa
tory
or im
pe
ach
me
nt e
vid
en
ce
tha
t is favo
rab
le to
the
accu
sed. D
ue
pro
ce
ss req
uire
s scru
pu
lou
s
ad
he
ren
ce
to th
is prin
cip
le.
"Th
e N
ew
Ha
mp
shire
Su
pre
me
Co
urt h
as a
lso m
ad
e c
lea
r in tw
o c
ase
s tha
t law
en
forc
em
en
t o�
ce
rs are
en
titled
to d
ue
pro
ce
ss as to
bo
th p
lace
me
nt o
n a
nd
rem
ova
l from
the
EE
S. In
an
op
inio
n a
uth
ore
d b
y n
ow
Ch
ief J
ustic
e Ly
nn, th
e C
ou
rt ob
serv
ed
tha
t be
ca
use
"inclu
sion
on
the
'La
urie
List' c
arrie
s a stig
ma, p
olic
e o
�ce
rs ha
ve
a w
eig
hty
co
un
terv
ailin
g in
tere
st in e
nsu
ring
tha
t the
ir na
me
s are
no
t
pla
ce
d o
n th
e list w
he
n th
ere
are
no
pro
pe
r gro
un
ds fo
r do
ing
so."
"Th
e g
uid
an
ce
we
are
issuin
g to
da
y is in
ten
de
d to
ma
ke
cle
ar th
at, c
on
sisten
t with
the
Su
pre
me
Co
urt's d
irectiv
e, a
ba
sic p
roce
ss mu
st be
follo
we
d w
ith re
ga
rd to
alle
ga
tion
s of m
isco
nd
uct a
ga
inst a
n o
�ce
r. On
ly a
lleg
atio
ns o
f misc
on
du
ct w
hic
h a
re su
stain
ed
afte
r an
inve
stiga
tion
an
d w
hic
h c
on
stitute
EE
S c
on
du
ct w
ill resu
lt in a
n o
�ce
r's na
me
be
ing
pla
ce
d o
n th
e E
ES. A
n a
lleg
atio
n w
hic
h is n
ot
susta
ine
d o
r ha
s be
en
de
em
ed
un
fou
nd
ed
will n
ot c
au
se a
n o
�ce
r's na
me
to b
e p
lace
d o
n th
e list."
"Th
e N
ew
Ha
mp
shire
Su
pre
me
Co
urt h
as a
lso sta
ted
tha
t on
ce
an
o�
ce
r is pla
ce
d o
n th
e list, "th
e in
tere
st of in
div
idu
al o
�ce
rs in th
is
rep
uta
tion
s an
d c
are
ers is su
ch
tha
t the
re m
ust b
e so
me
po
st-pla
ce
me
nt m
ech
an
ism a
va
ilab
le to
an
o�
ce
r see
kin
g re
mo
va
lif the
gro
un
ds
are
the
rea
fter fo
un
d to
be
lackin
g in
sub
stan
ce. T
he
gu
ida
nce
we
are
issuin
g to
da
y sp
eci�
es th
e p
roto
co
l for re
mo
va
l of a
n o
�ce
r's na
me
from
the
EE
S if th
ere
ha
s be
en
a d
ete
rmin
atio
n o
ve
rturn
ing
the
orig
ina
l �n
din
g.
Tod
ay's g
uid
an
ce
bo
th fo
llow
s the
law
an
d re
spo
nd
s to c
on
ce
rns ra
ised
by th
e la
w e
nfo
rce
me
nt c
om
mu
nity. I a
pp
recia
te th
e in
pu
t of th
e
law
en
forc
em
en
t lea
de
rs an
d th
e c
hie
fs wh
o a
re h
ere
tod
ay a
s we
ll as th
e m
an
y ra
nk-a
nd-�
le o
�ce
rs an
d tro
op
ers I h
ave
he
ard
from
on
the
se issu
es. I a
lso a
pp
recia
te th
e sk
illed
assista
nce
of S
AA
G W
olfo
rd in
pre
pa
ring
this g
uid
an
ce.
Ne
w E
ng
lan
d P
olic
e B
en
ev
ole
nt A
sso
cia
tion
Ne
w H
am
psh
ire S
tate
Dire
cto
r Ste
ph
en
J. A
rno
ld, S
r. sa
id o
f the
an
no
un
ce
me
nt:
I am
pro
ud
to sta
nd
with
my fe
llow
La
w E
nfo
rce
me
nt O
�ce
rs, Atto
rne
y G
en
era
l Go
rdo
n M
acD
on
ald
an
d G
ove
rno
r Ch
ris Su
nu
nu
to
an
no
un
ce
the
lon
g o
ve
rdu
e c
orre
ctio
n to
the
co
ntro
ve
rsial a
nd
som
etim
es h
arm
ful N
ew
Ha
mp
shire
'La
urie
list.'
Du
ring
the
Go
ve
rno
r's ca
mp
aig
n, I sp
eci�
ca
lly a
dd
resse
d th
e L
au
rie c
on
ce
rns a
nd
ask
ed
tha
t if he
go
t ele
cte
d th
at h
e m
ake
it a p
riority
to
�x th
is pro
ble
m. G
ove
rno
r Su
nu
nu
ca
me
thro
ug
h w
ith h
is pro
mise
to u
s. He
an
d h
is sta�
wo
rke
d tire
lessly
ove
r the
co
urse
of th
e la
st ye
ar
to a
dd
ress th
is pro
ble
m th
rou
gh
a p
artn
ersh
ip a
nd
co
nse
nsu
s be
twe
en
NH
Go
ve
rnm
en
t an
d N
H L
aw
En
forc
em
en
t.
Du
ring
the
Go
ve
rno
r's ca
mp
aig
n, I sp
eci�
ca
lly a
dd
resse
d th
e L
au
rie c
on
ce
rns a
nd
ask
ed
tha
t if he
go
t ele
cte
d th
at h
e m
ake
it a p
riority
to
�x th
is pro
ble
m. G
ove
rno
r Su
nu
nu
ca
me
thro
ug
h w
ith h
is pro
mise
to u
s. He
an
d h
is sta�
wo
rke
d tire
lessly
ove
r the
co
urse
of th
e la
st ye
ar
to a
dd
ress th
is pro
ble
m th
rou
gh
a p
artn
ersh
ip a
nd
co
nse
nsu
s be
twe
en
NH
Go
ve
rnm
en
t an
d N
H L
aw
En
forc
em
en
t.
Ne
w H
am
psh
ire P
olic
e A
sso
cia
tion
Pre
sid
en
t Pa
trick
Ch
ee
tha
m s
aid
of th
e a
nn
ou
nce
me
nt:/s
tron
g>
Th
e N
ew
Ha
mp
shire
Po
lice
Asso
cia
tion
in c
oo
rdin
atio
n w
ith G
ove
rno
r Su
nu
nu's O
�ce
an
d th
e O
�ce
of th
e N
ew
Ha
mp
shire
Atto
rne
y
Ge
ne
ral a
re b
oth
ple
ase
d a
nd
pro
ud
to a
nn
ou
nce
the
rele
ase
of a
dd
ition
al g
uid
elin
es c
on
ce
rnin
g th
e E
xcu
lpa
tory
Evid
en
ce
Sch
ed
ule.
Th
e c
olla
bo
rativ
e a
nd
co
op
era
tive
e�
orts b
etw
ee
n o
ur th
ree
org
an
izatio
ns a
lon
g w
ith th
e N
ew
En
gla
nd
Po
lice
Be
ne
vo
len
t Asso
cia
tion
an
d th
e N
H C
hie
fs of P
olic
e A
ssocia
tion
ha
s led
to a
pp
rop
riate
du
e p
roce
ss righ
ts be
ing
esta
blish
ed
for N
ew
Ha
mp
shire
's po
lice
o�
ce
rs.
We
spe
ci�
ca
lly w
ou
ld lik
e to
tha
nk G
ove
rno
r Su
nu
nu, A
ttorn
ey G
en
era
l Ma
cD
on
ald
an
d th
eir o
�ce
s for th
eir c
on
tinu
ed
sup
po
rt ove
r the
pa
st ye
ar a
nd
the
ir stea
dfa
st, op
en-d
oo
r po
licy to
ou
r tho
ug
hts a
nd
inp
ut.
Note: P
lea
se �
nd
atta
ch
ed
the
ad
ditio
na
l Gu
ida
nce
Co
nce
rnin
g th
e E
xcu
lpa
tory
Evid
en
ce
Sch
ed
ule
from
Atto
rne
y G
en
era
l Go
rdo
n
Ma
cD
on
ald
.
Po
rtab
le D
ocu
me
nt F
orm
at (.p
df) . V
isit nh.g
ov fo
r a list o
f free
.pd
f rea
de
rs for a
va
riety
of o
pe
ratin
g sy
stem
s.
!ID
[IJ
8/19/2020 New Hampshire Updates Guidance Concerning the Exculpatory Evidence Schedule | Governor Christopher T. Sununu
https://www.governor.nh.gov/news-and-media/new-hampshire-updates-guidance-concerning-exculpatory-evidence-schedule 3/3
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Ne,w Hampshire GOVERNOR CHRII IUNUNU
----- ------ ---
239
LAW ENFORCEMENT MEMORANDUM
To: All New Hampshire Law Enforcement Agencies All County Attorneys
From: Gordon J. MacDonald, Attorney Gen
Re: Additional Guidance Concerning the Exculpatory Evidence Schedule
Date: April 30, 2018
The intention of this memorandum is to clarify some of the procedural matters addressed in the New Hampshire Department of Justice March 21, 2017 Exculpatory Evidence Memorandum, Exculpatory Evidence Protocol, and 201 7 Training for Law Enforcement PowerPoint presentation (hereinafter, "Memo," "Protocol," and "Training"). Where there is a conflict between this memorandum and the Memo, Protocol, or Training, this memorandum shall control.
Only "Sustained" Findings Sh-all Entail Placement on the EES
The EES Memo and Protocol contemplate the following basic process with regard to allegations of misconduct against an officer:
- That an investigation will be conducted into the allegations;
- That the investigation will result in a conclusion that the allegation is "sustained," "not sustained," or "unfounded," or that the officer is "exonerated";
- That if the conclusion is that the allegation is "sustained," the head of the law enforcement agency will determine whether the conduct at issue is EES conduct;
- That if the head of the law enforcement agency determines that the conduct at issue is EES conduct, the officer will be notified and afforded the opportunity to present evidence which the officer believes demonstrates the conduct is not EES conduct; and
~ That if after considering the evidence presented by the officer, the head of the law enforcement agency's conclusion remains that the sustained allegation of misconduct constitutes EES conduct, he or she shall issue notification causing the officer's name to be placed on the EES.
See Protocol, p. 4, 7.
240
Only allegations ofmisconduct which are sustained aiter an investigation and which constitute EES conduct wilJ result in an officer's )larne being placed on the EES .1
"Sustained" means that the evidence obtained during an investigation was sufficient to prove that the act occurred. See Memo, p. 4 n.5. Mere investigation into EES conduct does not warrant either EES notification or inclusion on the EES. Accordingly, law enforcement agency heads should not cause an officer's name to be "temporarily" placed on the EES while an investigation into the allegations is pending. Further, investigations into allegations of misconduct against officers who resign or otherwise leave employment prior to the completion of the investigation must be completed nonetheless, upon notice to the officer, with or without the officer's cooperation.
There is a caveat to the directive that mere investigation shall not cause EES notification and inclusion: The fact that an officer is under investigation may constitute evidence which is favorable to the defense in a particular case or cases, and thus must be disclosed to the defense in those cases. See, e.g., United States v. Wilson, 605 F.3d 985, 1006 (D.C. Cir. 2010) (per curiam) (evidence that the testifying officer was under suspension due to an investigation might show that she was motivated to testify falsely against the defendants in order to curry favor with the government); United States v. Bowie, 198 F.3d 905 (D.C. Cir. 1999). Consistent with the Memo's directives, officers who are under investigation must notify the prosecutor in any case in which they may be a witness that they are under investigation. See Memo, p. 5. The heads oflaw enforcement agencies should also provide this information to prosecutors in cases in which such officers may be a witness.
Allegations Which Are Determined to be "Not Sustained" Do Not Entail Placement on the EES
As discussed above, the EES Memo and Protocol contemplate that a sustained allegation ofEES misconduct against an officer will cause the officer's name to be placed on the EES.
A finding which is not sustained is one for which there is insufficient evidence to enable the conclusion that the alleged conduct actually occurred. Memo, p. 4; Memo, p. 4 n.5. In essence, an allegation wh1ch is not sustained is nothing more than an allegation, which should not be considered exculpatory.
1 Written notification concerning sustained allegations which constitute EES conduct must be made to the County Attorney and the Attorney General's Criminal Justice Bureau Chief. See Protocol, p. 7. The notification content shall be limited to the officer's name and date of birth, the name of the law enforcement agency, the date(s) on which the misconduct occurred, and a short description of the type(s) ofEES conduct at issue. No other information, and no other records or documents, shall be submitted. Examples of types of EES conduct include "credibility," "excessive use of force," and "criminal conduct." See, e.g., Protocol, p. 2. A sample notification letter is attached to this memorandum.
2
241
Thus, allegations which are deemed not sustained after investigation, as with unfounded and exonerated determinations, will not cause an officer's name to be placed on the list. Accordingly, notification is not required regarding allegations which are deemed not sustained.
Mental Health & Exculpatory Evidence
Evidence of mental illness may be exculpatory because it may call into question the witness's reliability and therefore his or her credibility. See, e.g., State v. Fichera, 153 N.H. 588, 599-600 (2006) ( cross-examination on the issue is permissible if the defendant is able to show that a "mental impairment" affects the witness's perception of events to which she is testifying); State v. Shepherd, 159 N.H. 163, 171 (2009) (reversing an AFSA conviction, in part because evidence of the victim's history of depression was "sufficiently favorable to require disclosure"); see also United States v. Butt, 955 F.2d 77, 82-83 (1st Cir. 1992) (noting that federal courts have found mental instability relevant to credibility only where the witness suffered from a severe illness that dramatically impaired her ability to perceive and tell the truth); United States v. Smith, 77 F.3d 511, 516 (D.C. Cir. 1996) (reversing conviction, in part because the government failed to disclose that a key prosecution witness had been hospitalized for chronic depression for more than a year).
The EES Protocol requires that an officer's name be placed on the EES due to an "instance[] of mental illness or instability that caused [the officer's] law enforcement agency to take some affirmative action to suspend the officer as a disciplinary matter." Protocol, p. 1 n.2 ( emphasis added); Protocol, p. 2. The emphasis on the prerequisites of sus:Qension and disc1pline in the Protocol is consistent with the approach taken by some courts that only severe, protracted mental illness will constitute favorable evidence for constitutional purposes. In other words, if the mental health issue is so significant that it not only compromises an officer's discharge of his or her duties but also results in the officer's suspension as a disciplinary matter, then it ought to be presumptively significant enough to constitute impeachment evidence. The Protocol makes clear that other mental health events, such as "a directive to an officer to seek mental health treatment following a traum.atic incident" wherein no affirmative action was taken to suspend the officer as a disciplinary matter, are categorically excluded from the EES. Protocol, p. 1 n.2.
The Protocol's requirement of the nexus between "the instance of mental illness or instability" and the "suspen[sionJ as disciplinary matter" also means that documentation of such incidents should be found in personnel files other than the officer's medical and mental health files. Assuming that is the case, the Protocol does not require the head of a law enforcement agency to review officers' medical and mental health records to discover such information, since this information will already be known due to other administrative action.
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Protocols for Removal from the EES
In Gantert v. City of Rochester, 168 N.H. 640 (2016), the New Hampshire Supreme
Court observed that "the interest of individual officers in their reputations and careers is such
that there must be some post-placement mechanism available to an officer to seek removal
. from the "Laurie List" if the grol.lnds are thereafter found to be lacking in substance .... "
Gantert, 168 N.H. at 650 (emphasis in original). The Court noted that after an officer is
placed on an exculpatory evidence list, he or she "may have grounds for judicial relief if the
circumstances that gave rise to the placement are clearly shown to be without basis." Id.
(citing Duchesne v. Hillsborough County Attorney, 167 N.H. 774, 784-85 (2015)). Other
avenues of post-placement process include grievance procedures identified in employment
terms and collective bargaining agreements.
Because sustained findings of conduct warranting inclusion on the EES may be
overturned through these processes, the Memo and Protocol permit an officer's name to be
removed from the EES "with the approval of the Attorney General or designee." Protocol, p.
5. This removal process does not involve a substantive review. NHDOJ is not an
adjudicatory body and the protocol described herein is not one which entails reconsideration
of the facts underlying the investigation. Instead, the removal protocol requires removal
when a sustained finding has been overturned. 2
The removal protocol is as follows:
1. The Attorney General's designees for the purpose ofEES removal are the Director of the Division of Public Protection and the Criminal Justice Bureau Chief. The Attorney General may designate other Senior Assistant Attorneys General for this purpose.
2. The request for removal must be made in writing by the head of the law enforcement agency at which the officer was or is employed, or by the officer or his or her designee. If the request is made by the officer or his or her designee, the Attorney General's Designee shall provide notice thereof to the head of the law enforcement agency at which the officer was or is employed. The request must:
a. State the allegations against the officer; and
b. State that an investigation into the allegations was conducted; and
2 If an officer's name was included on the EES before the investigation into his or her alleged misconduct
was completed, the officer's name will be removed by the Attorney General or Designee upon written
notification that the outcome of the investigation is that the allegations were unfounded or not sustained,
or that the officer was exonerated.
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c. State the disciplinary finding which resulted in the officer's placement on the EES, and the fact that the finding has been overturned; and
d. Provide a copy of the order or other determination overturning the
disciplinary finding.
3. If a sustained finding was overturned, the Attorney General's Designee shall cause
the removal of the officer's name from the EES.
4. The Attorney General's Designee shall notify the head of the law
enforcement agency, and the law enforcement officer or his or her designee, in writing regarding the removal decision. A copy of this notification shall be sent to each county attorney.
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[Date]
Criminal Justice Bureau Chief New Hampshire Department of Justice 33 Capitol Street Concord,NH 03301
RE: EES NOTIFICATION
Dear Criminal Justice Bureau Chief:
A determination has been made that the law enforcement officer identified below has engaged in condlJct that ,may be subject t.o disclosure pursuant to Brady v. Maryland, 373 D.S. 83 (1963), and State v. Laurie, 139
N.H. 325 (1995):
Officer's name:
Officer's date of birth:
Law enforcement agency:
Date of iacident:
Type ofEES conduct:
Sincerely,
r
