Bar Journal - Fall 2005
OPENING THE DOOR: New Hampshire's Treatment of Trial Court Rebuttal Evidence
By: David A. Estabrook
On January 6, 2005 the New Hampshire Supreme Court decided State v. Rogan,1 adding to the number of cases explaining the “opening the door” evidentiary doctrine. The court held that the “‘opening the door’ doctrine applies when one party introduces evidence providing a justification beyond mere relevance for an opponent’s introduction of otherwise inadmissible evidence.”2 To trigger the doctrine, “[t]he initial evidence must have reasonably created a misimpression or misled the fact-finder in some way.”3 Inadmissible evidence may, in response, become admissible in order to “remove any unfair prejudice which might otherwise have ensued from the original evidence.”4
The New Hampshire Supreme Court has not provided clear guidance as to what constitutes “unfair prejudice” or “misimpression.” Absent clear standards or guidance, courts run the risk of administering justice “according to the length of the chancellor’s foot” with dubious uniformity and certainty.5
This article traces the evolution of the “opening the door” doctrine in New Hampshire. The New Hampshire Supreme Court has developed so broad an “opening the door” doctrine as to risk confusion. Following other commentators6, this article proposes that the doctrine has been expanded too far for consistency in its application. The doctrine should thus be pared back so that it applies only in cases of “specific contradiction and curative admissibility.”7
The following hypothetical illustrates the three interpretations of the doctrine discussed in this article. On direct examination, “A” testifies to seeing the defendant assaulting a victim. During cross-examination, “A” admits to failing to identify the defendant in a pre-trial line-up. On redirect, the prosecution proposes to introduce the defendant’s prior convictions for witness tampering and intimidating witnesses in prior trials. The question facing a court is whether, on cross-examination, the defendant opened the door to the damaging and otherwise inadmissible evidence elicited on redirect. This article will outline three possible analyses of that question: the doctrines of specific contradiction; curative admissibility; and the expansive “opening the door” doctrine now prevalent in New Hampshire.
A party using specific contradiction impeaches the witness by offering evidence directly contradicting the witness’s testimony.8 In the hypothetical, the redirect testimony at issue does not fall within the definition of specific contradiction.9 The redirect testimony explains evidence elicited on cross; it does not contradict it.
Curative admissibility enables a party to introduce otherwise inadmissible evidence relating to a particular point after, and because, the opponent has presented inadmissible evidence on that point.10 Responding to improper evidence, a party may present what is “necessary to remove the unfair prejudice which might otherwise have ensued from the original argument.”11 In the hypothetical, the inadmissible redirect testimony will not be allowed because there has been no inadmissible evidence presented to the jury by the defense on cross examination that needs rebuttal.12
“Opening the door” provides that “[w]hen one party introduces a line of proof, the other party deserves a chance to meet it . . .”13 However, if the evidence which a party seeks to rebut is “immaterial and not prejudicial,” the judge, in the interest of efficiency should not allow any response.14 If he does, “under the prevailing view, the party opening the door has no standing to complain.”15 New Hampshire courts interpret the doctrine as allowing “previously suppressed or otherwise inadmissible evidence,” to be offered as a remedy for a party creating a misleading advantage.16 In the hypothetical, rebuttal evidence to the witness’s statement regarding the personal threats, under the “opening the door” doctrine may be admissible. The New Hampshire Supreme Court has stated, “admissibility of evidence is generally within the trial court’s sound discretion.”17 Thus, in finding that cross-examination has created a misleading advantage, the trial judge has discretion whether to admit the otherwise inadmissible evidence.
That expansive “opening the door” doctrine promotes uncertainty about the admissibility of evidence. Furthermore, in applying the broad “misleading advantage” standard, courts run the risk of creating a trial-within-a-trial while attempting to balance the interests of parties on both sides. Alternatively, seeking to avoid that back and forth, the trial court must arbitrarily decide to close the issue, rendering one party with the last word and a misleading advantage.
In the hypothetical, the defendant may wish to show that he was actually innocent of the prior witness tampering charges. As each party advocates for the introduction of evidence that they claim is necessary to remedy an unfair advantage that their opponent has gained, the focus of the trial is drawn from the original issue and a trial-within-a-trial develops. Alternatively, the trial judge must decide the point where the evidentiary debate will end. Granted, this will close out the risk of a trial-within-a-trial, however regardless of when the decision to end the evidence debate is made, one party will be left disadvantaged.
THE FACTS OF STATE V. ROGAN
In Rogan, the defendant was indicted on four counts of pattern aggravated felonious sexual assault committed against a thirteen-year-old victim.18 The state’s case depended wholly upon the victim’s testimony.19 The defense argued that the victim gave incriminating trial testimony because, before trial, she had been coerced into giving incriminating statements by improper police tactics.20
On direct examination, the deputy who took the pretrial statements testified about her method of interviewing the victim.21 She stated that the victim’s interview lasted nearly two hours and provided “details about the events.”
During cross-examination, the defense used an interview transcript to explore the possibility that the officer coerced answers.22 After the cross examination, the state asked to play the entire audiotape of the interview.23 The state argued that the coercion inference created during the deputy’s cross-examination could only be rebutted by playing the whole audiotape.24
The defense asserted that it had created no misleading impression in cross-examination about specific aspects of the interview, instead they had simply, and accurately, called attention to specific interviewing techniques used by the deputy. Accordingly, argued Rogan, the whole tape should not be played for the jury.25 The trial court sided with the state, allowing it to play the entire tape for the jury, after giving an instruction limiting the jury’s use of the tape to the issues of [the deputy’s] credibility in her testimony at trial and whether her investigation was fair and impartial.”26 After conviction on one charge,27 the defendant appealed, contending that he did not “open the door” for the admission of the whole tape because he did not create “a misleading impression regarding the interview,” and that even if he had, admitting the entire tape was an “unfair prejudicial remedy.”28
The Supreme Court affirmed, interpreting the “opening the door” doctrine as extending beyond curative admissibility.29 The Court wrote:
“Opening the door” is a conclusory term. . . .Once associated more strictly with the doctrine of curative admissibility, it is now more broadly applied to situations in which a misleading advantage may be countered with previously suppressed or otherwise inadmissible evidence. . . . The “opening the door” doctrine applies when one party introduces evidence that provides a justification beyond mere relevance for an opponent’s introduction of evidence that may not otherwise be admissible. (citation omitted). The initial evidence must have reasonably created a misimpression or misled the fact-finder in some way. This rule allows the opposing party to place potentially misleading evidence in its proper context.
(citations omitted). The court held that “the defense counsel – having taken the risk of creating a misleading advantage, or of misleading the fact finder in some way, ‘opened the door’ to the admission of evidence that would rebut the misimpression.”30 The court concluded that the defense, in cross-examining the deputy made the taped statements, “relevant to rebut the inference created by the defense . . . that her investigation was unfair and that she had coerced the victim to make incriminating statements.”31
Under specific contradiction or curative admissibility doctrines, the whole tape would likely not have been admitted. Because the tape is not used to contradict the testimony elicited on cross-examination, the specific contradiction doctrine is not applicable to the introduction of the whole tape. There is no triggering event for the doctrine of curative admissibility because the defense did not offer inadmissible evidence.
THE TREATMENT OF THE “OPENING THE DOOR” DOCTRINE IN NEW HAMPSHIRE CASE LAW32
In 1977, in State v. Butler, the New Hampshire Supreme Court first referred to the doctrine of “opening the door.”33 The Court did not define the doctrine and failed to find an abuse of discretion by the trial judge in allowing the defendant’s identification.34 The Court did not distinguish admissible from inadmissible evidence when discussing opening the door. In not limiting the doctrine to cases where one party has used inadmissible evidence justifying a response indicates that, from this early case, the Court did not follow the traditional curative admissibility definition.35
In State v. Crosman, in 1984, Justice Souter wrote for the Court considering the “opening the door” doctrine and found verbal completeness a more useful principle.36 At issue was testimony suggesting that a police officer had stated that an armed robbery had occurred and that he desired to question the defendant about it.37 The Court evaluated the prosecution’s questioning the defendant’s mother in order to “correct a false impression” and “provide more complete evidence.”38 Crosman provides often-cited language and questions the expansion of the “opening the door” doctrine. In Crosman, Justice Souter wrote:
“Opening the door” is a conclusory term, and its use is expanding. It applies when one party introduces evidence that provides a justification beyond mere relevance for an opponent’s introduction of otherwise inadmissible evidence. In an older stricter sense “opening the door” was usually identified with the doctrine of curative admissibility, under which the introduction of inadmissible evidence by one party may entitle the opposing party to the opportunity to do likewise in denial or explanation. . . .In practice today, the same term is often used more broadly to describe situations in which a misleading advantage may be countered with previously suppressed or otherwise inadmissible evidence.39
Justice Souter noted the expanding “opening the door” doctrine and the Court’s movement away from curative admissibility where rebuttal evidence addressed inadmissible triggering evidence. Justice Souter went on to say that the “opening the door” doctrine provides for introducing rebuttal evidence in order to counter a misleading advantage created by an opponent. In Crosman and in subsequent “opening the door” doctrine analyses, the New Hampshire Supreme Court has never given a reason for the movement away from curative admissibility to “opening the door.”
In State v. Trempe40, the Supreme Court found an abuse of trial court discretion regarding evidence the state introduced, and thereby provided some guidance on boundaries for the “misleading advantage” standard. Trempe interpreted “opening the door” without referring to curative admissibility and found that evidence of prior convictions was admissible despite the possibility of creating a misleading advantage.41 In Trempe, the defendant appealed a superior court ruling that found that he had “opened the door to admission of his prior conviction for simple assault against his niece.”42 The state argued that the defendant had opened the door to the cross-examination regarding his prior conviction by making statements that he was unaware of the police wanting to question him.43 The Court agreed that the statements “may have been misleading,” however, “the trial court abused its discretion in allowing the state to cross-examine [the defendant] about the simple assault.”44
The Trempe court reasoned that, “[t]he defendant has the burden to demonstrate that the trial court’s discretionary ruling is clearly untenable or unreasonable to the prejudice of his case.”45 The Court found:
Nothing in Trempe’s testimony concerning the [police] investigation of the simple assault against his niece discredits his avowal that the Greenville police interview about the crimes at issue here surprised him. We do not believe that being justly accused of one crime necessarily prepares a person for being accused of another.46
The Court stated that, “[t]he fact that the door has been opened does not, by itself, permit all evidence to pass through. The doctrine is to prevent prejudice and is not to be subverted into a rule for injection of prejudice.”47
Similarly, in State v. Morrill, in 2004, the Supreme Court held that a witness’s testimony had not created a “misimpression”, thus the defendant did not “open the door” for the state to introduce “otherwise inadmissible testimony.”48 The Supreme Court defined “opening the door” under Crosman.49 The defense had introduced testimony that an investigation had been closed because an agency was “unable to substantiate any of the allegations stated and [the] determination was unfounded.”50 The defense, through testimony, provided the agency definition of “unfounded.”51 The trial court then allowed the state to elicit testimony that the case had closed “uncomfortably,” finding that the defendant had “opened [the] door as wide as it can be.”52 The Supreme Court agreed with the defendant’s contention that there was no misleading advantage, and stated that the testimony as to the investigation being closed as unfounded “did not mislead the jury or give a misimpression that warranted the admission of otherwise inadmissible testimony.”53
The Supreme Court has not expressly provided guidance as to what constitutes a misleading advantage or misimpression. Other than using the boundaries established in Morrill and to a lesser degree, Trempe, the Supreme Court has provided little guidance as to the limits of the “misleading advantage” standard. Reviewing trial court decisions on the introduction of rebuttal evidence or the issuing of curative instructions, the Supreme Court has stated that “[s]ince the trial court is in the best position to judge the witness’s demeanor and the impact on the jury, we will not disturb its finding absent an abuse of discretion.”54 The Supreme Court has stated that the “opening the door” doctrine “prevents a defendant from successfully excluding inadmissible evidence favorable to the state and ‘then selectively introducing pieces of this evidence for his own advantage, without allowing the prosecution to place the evidence in its proper context.’”55 The Court has not provided guidance as to what “proper context” is.
The New Hampshire Supreme Court has repeatedly stated that the “‘opening the door’ doctrine is expanding.’” An analysis of the holdings in cases where the “opening the door” doctrine was applied provides no evidence of expansion. The same “misleading advantage” standard has been used since the earliest application of the doctrine. The Court has not articulated a rationale for the movement away from the common law curative admissibility doctrine to the expanded “opening the door” doctrine.
After Butler, and throughout the twenty years between Crosman and Rogan, the Supreme Court has repeatedly used the “opening the door” doctrine when considering certain evidence to mitigate a false or misleading impression resulting from previously introduced evidence. The Court has provided little guidance as to what a “misleading advantage” is. The Court, in applying “opening the door” states that the doctrine’s use is expanding, as well as the situations where it is used.56 Commentators proffer that this expansion has the potential to compromise the operation of our adversarial system.
LIMITING THE EXPANSION OF THE “OPENING THE DOOR” DOCTRINE
Commentators opine that courts have expanded “opening the door” beyond curative admissibility and specific contradiction and have allowed it to become a “general umbrella” containing both.57 An expanded “opening the door” doctrine presents concerns on two distinct fronts. There is an inherent danger of reducing a determination of when and what misleading evidence has been introduced to a trial-within-a-trial. Each side will successfully argue that the other has gained a misleading advantage and subsequent evidence is necessary in rebuttal. If this exchange is allowed, the analysis of an evidentiary question could needlessly prolong a trial. Even if there is no trial-within-a-trial, there will, by design, be a point where a trial court must determine which party is left with the final word and the misleading advantage. The determination of what constitutes a “misleading advantage” presents the potential for an inefficient use of the judicial system.
Evidence law provides a means to facilitate a party’s fundamental right to attack false or misleading unfavorable evidence presented by the opponent.58 Specific contradiction is a well-settled impeachment method.59 Curative admissibility provides a means of redress after inadmissible evidence has been introduced by the introduction of evidence that may have been previously suppressed or otherwise inadmissible. Allowing the “opening the door” doctrine to expand and consume or alter these two common law evidentiary doctrines, in the interest of preventing a “misleading advantage,” runs the risk of exposing the trial process to an arbitrary closing of the issue or a trial-within-a-trial. Either outcome may negatively affect the equity and efficiency of the trial process.
Maryland evidence law acknowledges the doctrines of curative admissibility and “opening the door.”60 In State v. Clark, the Court of Appeals of Maryland opined, “opening the door” is “really a rule of expanded relevancy.”61 The Court went on to say that:
In sum, “opening the door” is simply a way of saying: “My opponent has injected an issue into the case, and I ought to be able to introduce evidence on that issue.”
The Clark opinion explained that “opening the door” generally applies when “competent evidence which was previously irrelevant is now relevant through the opponent’s admission of other evidence on the same issue.”62 Clark referred to “opening the door” as a limited doctrine and stated that, “it does not allow injecting collateral issues into a case or introducing extrinsic evidence on collateral issues.”63 The Clark opinion continued, “[s]uch evidence is also subject to exclusion where a court finds that the probative value of the otherwise inadmissible responsive evidence ‘is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.’”64
Curative admissibility is more limited and applies “where a party wishes to offer incompetent evidence in response to incompetent evidence offered by the opponent which was admitted without objection.”65 The Clark court contrasted curative admissibility with “opening the door” and stated as to curative admissibility:
That the curative admissibility doctrine is not frequently invoked is evidenced by the fact that the much more familiar way to “cure” inadmissible evidence admitted without timely objection is to appeal to the court’s discretion to grant a belated motion to strike the evidence and to deliver a curative instruction to the jury to disregard the inadmissible testimony. However, where merely striking out the irrelevant evidence is not sufficient to erase the prejudice it caused, and the “damage in the form of prejudice to the defendant transcend[s] the curative effect of the instruction,” . . . The damaged party may seek to counter the prejudice with otherwise irrelevant and incompetent evidence.
The Court went on to say that in regard to “opening the door:”
In that case, the “open door” doctrine of expanded relevancy offers the damaged party no recourse. But, in limited circumstances, when inadmissible and highly prejudicial evidence has been admitted without objection and the opposing party wishes to offer inadmissible evidence that would go no further than neutralize the previously introduced inadmissible evidence, the trial judge has discretion to permit “curative admissibility.”66
Courts are not simply substituting the name “opening the door” for either specific contradiction or curative admissibility.67 Instead, there is tendency to “treat ‘opening the door’ as a broader theory encompassing both specific contradiction and curative admissibility”68 The evidence rules which are the basis of our litigation structure provide that “each party possesses the right to present favorable evidence supporting his position as well as the right to rebut or attack unfavorable evidence adduced by the opponent.”69 Allowing “opening the door” to expand and consume the doctrines of specific contradiction and curative admissibility may jeopardize the “distinct purposes” of these doctrines and provide the potential for imprecise application of evidentiary standards to the trial process.70
The New Hampshire Supreme Court has articulated a broad definition for “opening the door” based in part on Justice Souter’s analysis from Crosman. The definition lacks guidance on the parameters the trial judge may use in analyzing the “prejudicial impact of particular [evidence or] testimony.”
The Court states that “opening the door” has previously been associated with curative admissibility, but provides no reasoning for the movement away from the common law means of addressing the introduction of misleading evidence. The Court asserts the “initial evidence must have reasonably created a misimpression or misled the fact-finder in some way.” However, the Court provides no guidance as to what constitutes a misimpression or misleading advantage. The possible impact of rebuttal evidence as a remedy for what a trial court finds as a misleading advantage is so great that parties must have guidance as to the “misimpression” and “misleading advantage” standard.
1. 2005 N.H. LEXIS 2 (January 6, 2005).
2. State v. Morrill, 857 A.2d 1250, 1251 (N.H. 2004).
4. Hon. R. Scott McQuinn, Dangerous Crossing: The Line Between Proper and Improper Argument, 70-FEB J. Kan. B.A. 14, 22 (2001).
5. Blount v. Metropolitan Life Ins. Co., 15 S.E.2d 413 (Ga. 1941).
6. See Francis A. Gilligan & Edward J. Imwinkelried, Bringing the “Opening the Door” Theory to a Close: The Tendency to Overlook the Specific Contradiction Doctrine in Evidence Law, 41 Santa Clara L. Rev. 807, 810 (2001).
8 Id. at 808.
9 See Gilligan & Imwinkelried, supra n. 5 at 830.
10 McQuinn, supra n. 4 at 22.
12 See State v. Clark, 332 Md. 77, 629 A.2d 1239(1993).
13 Graham C. Lilly, An Introduction to the Law of Evidence, West Group, §11.5 (1996).
14 Edward W. Cleary, McCormick on Evidence, West Publishing Co., §57, (1984).
16 See generally Rogan, 2005 N.H. LEXIS 2.
17 Rogan, 2005 N.H. LEXIS at 4.
18 Rogan, 2005 N.H. LEXIS at 1.
19 Id. at 2.
20 Id. at 5.
21 Id. at 2.
26. Id. at 3.
30. Id. at 6.
32. The New Hampshire Supreme Court has considered the “opening the door” doctrine in the following cases: State v. Crosman, 125 N.H. 527 (1984); State v. Benoit, 126 N.H. 6 (1985); State v. Briand, 130 N.H. 650 (1988); State v. Sullivan, 131 N.H. 209 (1988); State v. Fecteau, 133 N.H. 860 (1991); State v. Stetson, 135 N.H. 267 (1992); State v. Hopkins, 136 N.H. 272 (1992); State v. Poirier, 136 N.H. 477 (1992); State v. Keith, 136 N.H. 572 (1992); State v. Patten, 137 N.H. 627 (1993); State v. Bouchard, 138 N.H. 581 (1994); State v. Trempe, 140 N.H. 95 (1995); State v. Weeks, 140 N.H. 463 (1995); State v. Fecteau, 140 N.H. 498 (1995); State v. Goodman, 145 N.H. 526 (2000); State v. Carlson, 146 N.H. 52 (2001); State v. Cannon, 146 N.H. 562 (2001); State v. Blackstock, 147 N.H. 791 (2002); Madija v. MPB Corp., 149 N.H. 371 (2003); State v. Morrill, 151 N.H. 331 (2004); State v. Rogan, 864 A.2d 382 (N.H. 2005); Figioli v. R.J. Moreau Co. Inc., 866 A.2d 962 (N.H. 2005).
33. 117 N.H. 888 (1977).
34. Id. at 892.
35. See 1 Wigmore, Evidence §15 (Tillers rev. 1983)(Defining curative admissibility as, prior introduction of inadmissible evidence, as estopping from subsequent objection to other inadmissible evidence).
36. 125 N.H. 527, 531 (1984); see also State v. Ellsworth, 151 N.H. 152 (2004)(looking to the rule of verbal completeness instead of “opening the door”).
37. Crosman, 125 N.H. at 531.
39. Id. at 530-531(emphasis added)(citation omitted).
40. 140 N.H. 95, 98 (1995).
41. Id. at 98.
42. Id. at 96.
43. Id. at 98.
44. Id. at 99.
45. Id. at 98
46. Id. at 99-100.
47. Id. at 99.
48. 857 A.2d 1250 ( N.H. 2004).
49. Id. at 1251.
50. Id. at 1252.
52. Id. at 1251.
53. Id. at 1252.
54. State v. MacRae, 141 N.H. 106, 114 (1996)(finding testimony “confusing and illogical” and thereby impacting the jury).
56. See Rogan 2005 N.H. Lexis 1.
57. Gilligan & Imwinkelried, supra n. 5 at 816.
58. Id. at 807.
60. Alan D. Hornstein & Nichole G. Mazade, A Match Made in Maryland: Howard Chasanow and the Law of Evidence, 60 Md. L. Rev. 315 (2001).
61. Clark, 332 Md. At 85.
62 Id. at 85.
63 Id. at 87.
65 Id. at 88.
66 Id. at 89.
67 Gilligan & Imwinkelried, supra n. 5 at 823.
69 Id. at 807.
David A. Estabrook obtained his law degree from Franklin Pierce Law Center in 2005. He currently is a law clerk for the Connecticut Superior Court.