In each of these three consolidated cases now before the New Hampshire Supreme Court, the State seeks to condition the production of constitutionally-required exculpatory evidence related to the credibility of police officers on the entry of protective orders that would shield the evidence from the public and prohibit defense counsel from discussing the contents of the production with anyone other than counsels’ staff and the defendant. In each case, the Superior Court correctly determined that there was no basis in law for entering such a “gag” order.
As the ACLU-NH and co-counsel argue in a May 5, 2021 filing in this case, the State’s compliance with its obligation under Brady to produce exculpatory evidence cannot be conditioned on defense attorneys agreeing to a “gag” order. Brady does not contain such a condition on the receipt of exculpatory evidence. RSA 105:13-b, itself, also imposes no such condition, instead requiring that “[e]xculpatory evidence in a police personnel file of a police officer who is serving as a witness in any criminal case shall be disclosed to the defendant.” This statute was amended in 2012 to make clear that, without exception, individuals accused of crimes be informed of police personnel file information that could impact a testifying officer’s credibility. New Hampshire Rule of Criminal Procedure 12(b)(1)(E) similarly imposes no such condition, instead requiring the State to produce “[a]ll exculpatory evidence required to be disclosed pursuant to the doctrine of” Brady and Laurie “within forty-five calendar days after the entry of a not guilty plea.” Instead of complying with these constitutional obligations, the State has violated these obligations, including RSA 105:13-b, by failing to provide exculpatory evidence as required, instead opting to (i) not comply with the Superior Court’s order, (ii) seek an extraordinary writ of certiorari, and (iii) delay the defendants’ respective trials at significant prejudice to their speedy trial rights. This evidence should have been disclosed months ago in compliance with these principles.
On June 10, 2021, the Supreme Court accepted this case for consideration. Briefing will occur during the summer of 2021, with oral argument to occur in the fall of 2021.