New Hampshire

Overview

New Hampshire stands out among U.S. states as one of the few to implement a centralized, statewide Brady/Giglio tracking system—a rarity that sets it apart from the largely decentralized and discretionary practices seen elsewhere. However, this progress is tempered by legal and procedural opacity, persistent resistance from law enforcement unions, and systemic limitations in public access. At the heart of the state’s effort is the Exculpatory Evidence Schedule (EES)—a confidential list maintained by the Attorney General's Office that identifies officers whose credibility may be impaired in court. Despite this infrastructure, the EES remains mostly shielded from public view, and many of the state’s 10 county attorneys and 234 municipal law enforcement agencies operate without consistent procedures for transparency, notification, or interagency coordination. In New Hampshire, candor is codified—but not yet fully realized.

Brief Description of Legal Landscape

Criminal prosecutions in New Hampshire are managed by elected County Attorneys, supported in certain cases by the New Hampshire Department of Justice, particularly through its Criminal Bureau. Prosecutors are obligated under both state and federal law to disclose evidence favorable to the defense, including impeachment material. This duty is anchored in New Hampshire Rule of Professional Conduct 3.8(d), as well as by judicial precedent interpreting due process protections under both the U.S. and New Hampshire Constitutions.

The state’s unique feature is the Exculpatory Evidence Schedule (EES), formerly known as the Laurie List (after a key court case), which is maintained by the Attorney General’s Office. The EES is intended to track officers with sustained findings of dishonesty, excessive force, bias, or other credibility-compromising misconduct. However, the list remains largely confidential due to judicial rulings and state law—most notably RSA 105:13-b, which restricts access to personnel files except under strict procedural conditions.

Law enforcement officers are certified by the New Hampshire Police Standards and Training Council (PSTC), which has the authority to suspend or revoke certification. Yet there is no statutory requirement that PSTC coordinate with prosecutors or automatically refer disciplinary decisions that may trigger Giglio obligations.

Historical Context

The push for a centralized Brady/Giglio mechanism in New Hampshire began with the State v. Laurie, 139 N.H. 325 (1995), decision. In that case, the New Hampshire Supreme Court vacated a capital murder conviction after the prosecution failed to disclose prior misconduct by a police officer. The ruling underscored the critical role of impeachment evidence and prompted the Attorney General’s Office to create what became known as the “Laurie List.”

However, the Laurie List was originally shrouded in secrecy. Over time, public pressure—including litigation by media organizations—forced the state to create a partial disclosure mechanism. In 2021, New Hampshire enacted SB 141, which required the AG to create a public-facing version of the EES with redacted entries and a process for officers to appeal inclusion. Despite this progress, most entries on the EES remain confidential, and significant discretion still lies with local prosecutors.

Meanwhile, individual law enforcement agencies and county attorney offices have failed to develop parallel or reinforcing Giglio protocols. As a result, the state's disclosure framework remains centralized in theory, but fragmented in practice.

Legal Framework and Precedents

Constitutional Provisions and State Statutes

New Hampshire recognizes due process rights under Part I, Article 15 of its Constitution and confrontation rights under Part I, Article 17, mirroring federal guarantees.

Key statutes and rules include:

• RSA 105:13-b: Prohibits the disclosure of police personnel records—including disciplinary records—except when a judge, after an in-camera review, finds that the material is relevant and exculpatory. This statute is frequently invoked to block defense access to Giglio material.

• Rule of Professional Conduct 3.8(d): Requires prosecutors to disclose evidence known to the government that tends to negate guilt or mitigate punishment.

• SB 141 (2021): Requires the Attorney General to maintain and update the EES and establish a process for public release of sustained entries.

Although prosecutors are required to disclose Giglio material, the Laurie List/EES is not automatically shared with defense attorneys or the public, and inclusion on the list does not automatically trigger pretrial disclosure.

Relevant Case Law and Judicial Interpretations

• State v. Laurie, 139 N.H. 325 (1995): The New Hampshire Supreme Court vacated a capital conviction due to nondisclosure of police misconduct, recognizing that such information is material under Brady and Giglio.

• Union Leader Corp. v. N.H. DOJ, 162 N.H. 673 (2011): The court denied public access to the Laurie List under RSA 91-A (the state’s right-to-know law), emphasizing officer privacy.

• Seacoast Newspapers, Inc. v. City of Portsmouth, 173 N.H. 408 (2020): A partial victory for transparency, the court ruled that records involving public employee misconduct could, under some circumstances, be released to the public, especially if the allegations were substantiated.

These cases reflect a state judiciary that acknowledges Brady obligations but often defaults to protecting personnel confidentiality—placing candor in tension with privacy.

Implementation and Enforcement

Law Enforcement Policies and Training

The New Hampshire PSTC sets minimum training standards for law enforcement, but there is no mandated curriculum for Brady or Giglio awareness. Individual departments may or may not train officers on their duty to report misconduct or the potential courtroom consequences of dishonest behavior.

Disciplinary actions are tracked internally by departments, and there is no mandatory reporting requirement to the Attorney General or local prosecutors unless the officer is referred for decertification or criminal charges. Many departments do not consistently notify prosecutors when a sustained finding occurs—leading to gaps in the Exculpatory Evidence Schedule.

While the EES is the state’s only centralized mechanism for tracking impeachment-related misconduct, inclusion is not automatic. The process depends on county attorneys, defense motions, or lawsuits surfacing credibility issues—and departments often resist disclosure, fearing reputational harm and union litigation.

Oversight Mechanisms and Accountability Structures

The New Hampshire Department of Justice is responsible for maintaining the EES but does not have auditing authority over local prosecutors’ compliance with Giglio. Misconduct by prosecutors is handled by the Attorney Discipline Office, but no formal structure exists to track or correct systemic failures in Brady compliance.

The PSTC may revoke an officer’s certification for dishonesty or constitutional violations, but these actions are not automatically linked to EES inclusion, nor are they proactively disclosed to defense counsel.

Case Studies from the State

Significant Cases Illustrating Issues of Candor

1. State v. Laurie (1995)
   The officer in a capital case had a documented history of fabricating reports. The prosecution failed to disclose this history, leading to a vacated conviction and the creation of the Laurie List.

2. Union Leader Lawsuit (2018–2021)
   Media outlet Union Leader sued for access to the Laurie List. After years of litigation, the state began releasing redacted versions of the list in compliance with SB 141. However, only a fraction of entries became public due to officer appeals.

3. Exculpatory Evidence Schedule Update (2022)
   In the first year following the implementation of SB 141, only a few officers were added to the public list, and over 90% of officers contested their inclusion. Many remained unnamed as litigation or internal appeals continued—highlighting the weakness of the release mechanism.

Outcomes and Implications

These examples demonstrate the tension in New Hampshire’s model: despite being one of the only states to maintain a centralized Giglio list, that list is largely inaccessible, incomplete, and dependent on discretionary action. Officers with known credibility issues may testify without disclosure, and defense attorneys often cannot obtain even redacted disciplinary records without extensive legal effort.

Challenges and Gaps

Identified Issues within the State’s System

• Limited Transparency of the EES: Most entries remain confidential due to pending appeals or judicial protections.

• No Mandatory Reporting by Law Enforcement: Departments are not required to notify prosecutors or the Attorney General of sustained misconduct relevant to Giglio.

• Inconsistent Use by Prosecutors: County attorneys differ in how they access and apply the EES, and some rely on memory or unofficial lists.

• No Integration with Certification Agency (PSTC): Decertified officers are not automatically added to the EES or flagged for disclosure.

Legislative and Institutional Barriers

Police unions and privacy advocates continue to resist expanded public access to the EES. Judicial interpretation of RSA 105:13-b heavily favors nondisclosure unless courts order otherwise. While SB 141 introduced transparency reforms, it left discretion in the hands of the AG and created a lengthy appeals process that keeps most entries secret. No statute mandates disclosure of EES entries to defense attorneys unless the officer is actively testifying.

Recommendations

Suggested Improvements in Law, Policy, and Practice

1. Mandate Public Disclosure of Sustained EES Entries
   Amend SB 141 to eliminate or narrow the appeals window and require automatic publication of entries following sustained findings of dishonesty or bias.

2. Require Law Enforcement Reporting to Prosecutors and EES
   Enact a statute requiring all departments to report sustained Giglio-impairing misconduct to the Attorney General and relevant County Attorney within 30 days.

3. Integrate PSTC and EES Systems
   Link decertification proceedings and sustained disciplinary actions directly to the Exculpatory Evidence Schedule.

4. Require Brady/Giglio Training for All Officers
   Include mandatory instruction on disclosure obligations and testimonial integrity as part of PSTC certification and continuing education.

Recommendations for Enhanced Transparency and Accountability

1. Create a Defense-Accessible EES Portal
   Build a secure portal where licensed defense attorneys can verify whether a testifying officer has an entry on the EES, regardless of public disclosure status.

2. Establish EES Oversight Unit
   Empower an independent unit within the Attorney General’s Office to audit compliance, investigate omissions, and issue public reports.

3. Mandate Disclosure of EES Entries in All Relevant Cases
   Require County Attorneys to disclose EES entries to defense counsel when any officer on the list is involved in a case—regardless of whether they are the lead witness.

4. Standardize Local Prosecutorial Practices
   Require all County Attorneys to maintain a formal Giglio protocol and to submit regular compliance reports to the Attorney General’s Office.

Conclusion

New Hampshire is one of the few states to institutionalize a statewide system for tracking Giglio material. But its potential remains unfulfilled. The Exculpatory Evidence Schedule is a powerful tool—made toothless by secrecy, discretion, and institutional inertia. Until New Hampshire mandates transparency, expands disclosure, and demands interagency coordination, the EES will remain a symbol of promise rather than a mechanism of justice. Candor must not merely be cataloged. It must be shared.