January 16, 2018
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NH police get more time to report names of officers with credibility questions

By Elizabeth Dinan, Portsmouth Herald
Elizabeth Dinan | Portsmouth Herald | BDN
Elizabeth Dinan | Portsmouth Herald | BDN
Portsmouth, New Hampshire, police respond to the scene where an unknown substance was found in this recent Portsmouth Herald file photo.

New Hampshire police chiefs have a three-month extension to provide the state with the names of officers who could have credibility problems if called to testify during a trial.

Under new rules established by the state attorney general’s office, the list of names formerly known as the “Laurie List,” will now be known as the Exculpatory Evidence Schedule, or EES. According to the Department of Justice, all police chiefs now have until Jan. 1 to provide their lists to the DOJ.

The presentation, available online, notes that defense attorneys must be advised of all exculpatory evidence that relates to the defense of their clients. Exculpatory evidence is defined as “any evidence that is favorable to the accused and material to guilt or to punishment.”

Exculpatory evidence pertaining to testifying police officers can include information in their personnel files that indicate an officer lied in a report or to a supervisor, the DOJ reported. Also exculpatory and required to be provided to defense attorneys is information from officers’ personnel files that note the use of excessive force, failure to follow legal procedures, being the subject of a criminal investigation, and substance abuse or mental health histories, the DOJ notes. A footnote states “only issues of mental illness or mental instability that caused the law enforcement agency to take some affirmative action to suspend the officer as a disciplinary matter should be considered exculpatory.”

Police chiefs from around the state were trained in March about the new rules. Like the former Laurie List, the EES roster will be held in confidence by the attorney general’s office and all county attorneys. It was named after a 1993 Supreme Court case, state of New Hampshire v. Carl Laurie, which said prosecutors have to disclose to defendants any known credibility problems pertaining to officers poised to testify against them.

The new protocol will replace a 2004 memo by former Attorney General Peter Heed and expands what information must be disclosed about potential police witnesses. It notes it’s important to recognize that inclusion on the list “does not mean that an officer is necessarily untrustworthy or dishonest and in many cases the designation on the EES will make clear there is no question of dishonesty.”

“It simply means that there is information in the file that must be disclosed to a criminal defendant if the facts of the case warrant that disclosure,” the memo states. “Whether that material will be used at trial to cross-examine the officer will be the subject of pre-trial litigation.”

The new EES notes that officers on the list will be notified by their chiefs and/or county attorney, and prosecutors will provide the information directly to the defense for any named law enforcement witnesses in a case. The information must remain in officers’ files throughout their careers and retirements, unless a finding is later overturned, according to the proposed rules.

Further, the EES rules note, “all law enforcement officers have a personal obligation to notify the prosecutor in any case in which they may be a witness if they have potentially exculpatory evidence in their personnel files.”

If an officer resigns, a record of disciplinary action must remain in their file and they do not avoid inclusion on the EES list by virtue of resigning, the rules state. Names on the list do not expire, but can be removed by the attorney general’s office if an officer is exonerated, according to the memo.

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