WHEN A VICTIM, MINOR OR ADULT, alleges repeated sexual assault by a defendant, over a period of months or years, how many of those incidents may be consolidated into one trial without violating a defendant's right to be tried for present, as opposed to past, conduct ?

At least one Superior Court judge would like to see further guidance on this issue from the Supreme Court, which adopted the ABA standards for joinder and severance in State v. Ramos, 149 NH 118 (2002), substantially changing local practice, and resulting in markedly fewer instances of joinder.

Commentators alternatively argue that the issue is too tough for much clear guidance, that it should be left to case-by-case analysis, or that it should be the subject of rulemaking, enhanced by modern psychological research.

From the standpoint of a trial judge, the Ramos standard is difficult to apply - it cries out for appellate clarification," wrote Superior Court Judge Larry M. Smukler last month, denying the Belknap County Attorney's motion to consolidate five indictments spanning a 22-month period in State v. Martinez.

Smukler would have found that the indictments were "related" under Ramos - because they involved five similar allegations of assaults on the same 10-year-old babysitter by the man of the house. But Smukler thought that if he allowed one trial, the attorney general would concede the joinder question on appeal, and the case would be sent back for two additional trials (based on a grouping of the five indictments).

The attorney general had in fact conceded the joinder issue in a similar case, State v. Cossette, August 31, 2004. (Assistant manager of a fast food restaurant accused of a series of sexual assaults on a 15-year-old employee.) In a non-precedental 3JX order, Justice James E. Duggan, joined by Dalianis, assumed that joinder had been in error, then applied harmless error analysis to conclude that the jury had obviously considered the charges separately. Justice Richard E. Galway dissented, arguing that the jury's partial acquittal raised serious questions about whether the defendant would have been convicted at all had each alleged incident of assault been tried separately.

Based in part on Cossette, Smukler concluded that the attorney general would not defend his consolidation ruling on appeal, and that the case would come back for two more trials - which would be "counterproductive to the interests of all parties and contrary to the interest of judicial economy, even if it [consolidation] were appropriate on the merits." By denying the motion to consolidate, Smukler increased the chances that there would be only two trials, rather than three.

"Neither party would benefit from the need for an extra trial if, as is likely, the attorney general will take an appellate position that makes the trial court's Ramos analysis an exercise in futility," Smukler wrote.

In his five-page order, Smukler twice lamented the state of the law on joinder. Ramos provides that "related" offenses may be joined, but offers only a skeletal definition of "related offenses" - "those that are based upon the same conduct, upon a single criminal episode, or upon a common plan."

Ramos involved one defendant and two victims - one a minor and one a mentally disabled young adult. The Supreme Court, noting that New Hampshire law had granted trial judges nearly unlimited discretion in the joinder area, adopted the ABA standards, and held that the facts in Ramos required that the counts be separate by victim.

In dissent, Supreme Court Justice Linda S. Dalianis noted that the parties had not argued for new joinder standards, and that the court should have left the issue to the court's rule-making procedure, which would allow for the input of the public, the bench, and the bar.

Commentary

"The larger issue," according to Pierce Law professor Alfred E. Scherr, "is: to what extent do we want to let character evidence come before the jury?"

An allegation that a defendant has assaulted one or more victims several times is "just another variation on the theme that 'he's done it before and now he's done it again'," said Scherr, who was a public defender for 13 years.

"We make character judgments all the time in our daily lives, and we have to, but in the criminal justice system, where the result can be jail, execution, or no punishment in a case where a serious crime was committed, the stakes are so high that we don't want to rely on character evidence," Scherr said.

"Sexual assault cases, particularly those involving children, are emotionally very difficult for everybody involved," Scherr said. "The character evidence rule is very clear [the evidence just doesn't come in]; but child sexual abuse cases are so tough emotionally that we hate to apply the rule in this context. It would be nice if this could be simpler and clearer, but it is reflective of the complexity of the issues."

Criminal defense attorney James H. Moir agrees that the Ramos rule is about as clear as it can be, and argues that leaving the joinder issue to case by case resolution is a workable solution. Even though the prosecution tends to push for joinder, and the defense tends to push for severance, there are also times when the defendant would rather have all the charges together in one trial, Moir said.

On the other hand, former Assistant Attorney General Charles Putnam, now director of Justiceworks, the UNH justice think tank, says that it's tough to argue that Ramos produces a great result for either the defense or the prosecution in the recent Belknap County case.

Putnam sees room for further specificity in the area of child sexual assault. New Hampshire courts have not been willing to draw lines around these types of cases, in part because lawyers are trained that laws need to have universal application, according to Putnam.

"The bench, bar, and legislature would be well advised to pay attention to developments in the academic world with regard to the development of the human ability to perceive and form memories, and to relate those memories," Putnam said.

"Children are often nonspecific about timing and detail - but that doesn't mean they are necessarily lying, or that they don't remember," Putnam said. "And yet the courts hold them to the standards of an adult victim with perfect cognition, who is testifying with corroborating evidence."

"The child victim starts from a deficit, in that they don't perceive and recall events the way we do - if we got a specific and detailed statement about a series of events from a six-year-old, we would not find that to be realistic," Putnam said. "Children are different," Putnam said, "And the current psychological research can help us understand that difference."

"Too often [in the process of a trial] we pull in experts to help establish a point without looking at the broader state of research in a given area," Putnam said. "The adversarial process tends to distort the kind of rules we get, and the broader social interests get lost."

See State v. Martinez, Belknap Superior Court, 04-S-026, 238-241, Order dated October 13, 2004.

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