On March 14, 2019, the ACLU-NH filed a motion seeking to intervene in a lawsuit in which Officer A.B. is seeking to be removed from the Exculpatory Evidence Schedule (“EES List”). The basis for his inclusion on the EES List involves, after drawing a weapon on a prisoner, inaccurately documenting in his police report that the prisoner had his hand in his pocket as if he were reaching for a weapon. This false statement was made as a justification for Officer A.B. drawing his weapon. An internal investigation resulted in a finding that Officer A.B. falsified a police report and provided false testimony.
As explained in the ACLU-NH's Motion to Intervene, Officer A.B.'s effort to be removed from the EES List is inappropriate. Prosecutors have an obligation to turn over exculpatory information to defendants regardless of whether the testifying officer is on the List. If Officer A.B. has something in his personnel file that is exculpatory, that information needs to be turned over in a criminal case to comply with the Constitution. Removing Officer A.B. from the List will make it harder for prosecutors to make appropriate disclosures to defendants in future cases in which Officer A.B. is a testifying witness.
Moreover, removal of this information from the EES List violates recent protocols from the Attorney General’s Office that make clear that there is no 10-year time limit to placement on the EES List, as evidence may be exculpatory and required to be disclosed regardless of how old the information is.