THE NUMBER OF articles in the September 2001 Annual Survey of NH Law issue of New Hampshire Bar Journal, featuring the contributions of Franklin Pierce Law Center students, exceeded the regular page count of the issue. As a result, the publication of an article by two Law Center students and attorney Charles DeGrandpre’s diary of his recent experiences as a Rockingham County juror will be postponed to a later issue.

Both articles are available now in the Bar Journal section. (A third article excerpted in the print edition of the Bar News and originally posted on the Bar Journal portion of the Web site has been removed and is being revised.) The following are excerpts (footnotes omitted) from the articles now appearing on the Web site. The second article is scheduled for publication in the December 2001 issue of the Bar Journal.

(Attorney DeGrandpre, of the McLane, Graf, Raulerson & Middleton law firm, has been practicing law in NH for 40 years. The author of the Bar Journal’s Lex Loci column, DeGrandpre is not primarily a trial lawyer; he concentrates on probate and estate law. The following excerpts focus on what takes place behind the closed doors of the jury deliberation room in two cases on which De Grandpre sat as a juror: a civil case stemming from an automobile accident, and a sexual assault trial.)

"It was interesting to me how everyone remembered different facts. At one point, the foreman remarked upon the fact that the plaintiff, in her testimony, only showed any emotion when she got to her time in the hospital when she got red-faced and teared up. He then noted that she was a drama major student in college and perhaps she was putting the whole thing on! No one else had picked up on the drama major part."

"As I have spoken with legal colleagues after my jury service, several mentioned how wide-ranging our discussions were, even involving stuff we weren’t supposed to discuss. I think it’s fair to say that we didn’t think that there was anything we were not free to discuss, assuming we followed the judge’s instructions in general."

At the start of the second trial for which he was called...

"All of the jurors gathered promptly at about 9:30 a.m. to 9:45 a.m. and we had a chance to get know each other a little bit. This ‘getting to know one another’ time is very important part of the process of a jury coalescing together to try to reach a verdict. Little things are said by one person or another, as each takes stock of their fellow jury members. Most jurors are quiet and offer little about themselves. No one seemed to want to pry into the life of another."

After the verdict (acquittal) was delivered...

"Judge Coffey soon arrived in the jury deliberation room in her robes and thanked us for our service and asked us whether we had any questions. Of course we did. I can’t say again how important I think it is that the presiding judge take these very few minutes with the jury to talk with them, to thank them for their service, and to be willing to answer questions. Somehow, it seems to validate what the jury has done.

[Judge Coffey] indicated that she often looked at a case one way and the jury the other and she thought that juries, being composed of 12 persons who had to reach agreement, often found strength and comfort in their decision as a result of knowing that there were 11 other people who they needed to influence and who influenced them. She felt it was good that it required 12 people to come to the awesome conclusion that a criminal defendant was guilty or not guilty.

...As I left the courthouse, a couple of the jurors told me that they thought I had done a good job as a foreman and that made me feel better. Most of all, I thought of the sentiment, as almost all of the jurors had said, that we would have found it terrible if we let a guilty man go free who might continue to do immoral acts. That weighed on us a lot. On the other hand, as one juror said, the American judicial system was built so that it is better to let one guilty man go free than to send an innocent man to jail. I guess these observations are a good summation of this extraordinary day in my life."

(Both are third-year law students at FPLC.)

Both the US Constitution and the New Hampshire Constitution guarantee an individual’s right to be "secure from unreasonable searches and seizures." In 1995, the New Hampshire Legislature enacted RSA 265:93, which allows chemical testing of the blood of a driver involved in an accident resulting in death or serious bodily injury without a warrant or probable cause. This article analyzes and predicts the constitutionality of New Hampshire RSA 265:93, which has not yet been challenged in the New Hampshire Supreme Court, on the premise that it violates the Fourth Amendment to the United States Constitution and Article 19 of the New Hampshire Constitution.

Five other states have enacted legislation similar to RSA 265:93. In this article, each of the five statutes will be analyzed to discern the constitutional elements, and how the court’s rationale may predict the outcome of a constitutional challenge to RSA 265:93. There are two recurring similarities among these statutes: 1) they allow the seizure and chemical testing of a driver’s blood and permit introduction of the test results in a criminal, civil or administrative proceeding despite the absence of a warrant or probable cause; 2) they have been challenged on the premise that the Fourth Amendment to the US Constitution is violated because the chemical testing of the driver’s blood is admissible evidence without regard to warrant or probable cause requirements.

...The Special Needs Exception to the probable cause and warrant requirements is discussed because this exception is the only avenue to constitutionality for these statutes under the United States Constitution.

...The US Supreme Court, in Skinner v. Labor Executives Association, recognized that "special needs, beyond the normal need for law enforcement, make the warrant and probable cause requirement impracticable" and created the Special Needs Exception.

In analyzing New Hampshire RSA 265:93, compared to similar statutes that have been challenged in other state courts, it does not fall within the Special Needs Exception and, therefore, will likely be held unconstitutional as a violation of the Fourth Amendment and Part I, Article 19 of the New Hampshire Constitution. Only the Maine and amended Illinois statutes were able to meet the requirements of the federal Special Needs Exception test from Skinner. These statutes are distinguishable from New Hampshire’s because each mandates individualized probable cause that a law has been broken be independently obtained from a source other than the statute itself. Other statutes that have failed the Special Needs Exception test rely solely on the statute to enable law enforcement to order chemical tests on the driver that will then be admissible in a criminal, civil or administrative proceeding. RSA 265:93, like the other statutes found to be unconstitutional, assist in the normal needs of law enforcement without requiring individualized probable cause to believe a driver was impaired. In doing so, the New Hampshire statute has failed to create a "special need" that would justify a departure from the normal probable cause and warrant requirement of the Fourth Amendment of the Federal Constitution and Part I, Article 19 of the New Hampshire Constitution.

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