N.H. courts’ confidential records review process under review

  • New Hampshire Supreme Court Associate Justice Robert Lynn during a Nov. 14, 2012, hearing in Concord. Lynn is chairman of the Advisory Committee on Rules. (AP Photo/Jim Cole) Jim Cole

Monitor staff
Monday, December 11, 2017

An advisory committee is considering how much of a say attorneys should have in determining the admissibility at trial of information contained in confidential records.

Historically, New Hampshire judges have privately looked at confidential and sensitive records to determine what, if any, information may be used by the prosecution or defense, and made public at trial. That process, known as an in camera review, occurs in a minority of cases and is most commonly requested by an attorney in cases involving crimes of interpersonal violence, including sexual assault.

The 16-member Advisory Committee on Rules, which considers suggestions for changes to the rules governing the state courts, began its review of the procedures in December 2016 and is still weighing several proposals that were part of a public hearing Friday at the state Supreme Court.

Members of the victim advocacy committee have expressed concern about any rule change that would lower the standards for accessing confidential records.

Lyn Schollett, executive director of the New Hampshire Coalition Against Domestic and Sexual Violence, said during Friday’s public hearing that she doesn’t support opening up the in camera review process to legal counsel.

“A rape victim who seeks counseling or advocacy services does so dependent on the promise that her conversations will stay within the walls of that private room,” Schollett read from a prepared statement. “A rape victim had no choice in being raped. When her privacy is violated and those most confidential communications are released, this feels like a second violation, a second rape.”

Schollett noted that some victims will forgo counseling and medical services when they learn those confidential records could be shared with their abuser in court.

Chief Appellate Defender Christopher Johnson first brought the matter to the committee one year ago out of concern the current rule favors privacy interests over a defendant’s right to due process. Johnson told the Monitor on Monday that he believes judges need greater guidance from counsel after an initial inspection and screening of the records to determine what information is “reasonably necessary” to a case.

More broadly, he said, defense attorneys are concerned about having access to information that could cast a reasonable doubt on the prosecution’s case. He said his greatest fear is that guarded access to certain records could lead to a wrongful conviction.

Public defenders have also said if the process changes to include a second phase of in camera review with attorneys that the parties would be subject to a gag rule, forbidding them from discussing or sharing the confidential information outside of their conversations with the judge. That would likely mean defense attorneys would have to petition the court should they feel legally obligated to share any sensitive information with clients.

But as defense attorneys seek to open up the process, the state’s top prosecutors are urging caution.

In a letter to the committee, Deputy Attorney General Ann Rice said the state’s department of justice supports a rule where the expectations and protocol are the same for both parties to a case; she said anything else would “deviate from established New Hampshire Supreme Court case law.”

One of the proposed rules suggests that records should be turned over at the defendant’s request if they contain any “exculpatory information,” which is a lower threshold than the “reasonably necessary” standard.

By lowering the threshold for disclosure of a victim’s medical, counseling or other confidential records, there is an increased risk that more information will be turned over, and yet, in the end, it still wouldn’t be admissible, Rice said.

New Hampshire’s current in camera review process is relatively common nationwide. However, at least two states – Iowa and Massachusetts – have adopted a process that involves attorneys in a phase of the records review and admissibility assessment, according to research shared with the committee. Alternatively, some states have completely removed the in camera review provision, leaving domestic violence and sexual assault victims with the power to decide what happens to their private records.

The committee did not take any action on the proposals Friday. The next meeting of the committee is scheduled for March.

(Alyssa Dandrea can be reached at 369-3319, adandrea@cmonitor.com or on Twitter @_ADandrea.)