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Bar Journal - September 1, 2000



Franklin Pierce Law Center is pleased to continue its collaboration with the New Hampshire Bar Association in publishing the Annual Survey of New Hampshire Law. As has been the tradition, this issue of the Annual Survey consists of articles written by second year students. Working under the supervision of third year student editors, the authors chose a recent New Hampshire Supreme Court decision and discussed issues arising from that decision. The articles were then reviewed by members of the NHBA Publications Committee.

The first article deals with the New Hampshire Supreme Court's adoption of an automatic waiver of the attorney-client privilege for ineffective assistance of counsel claims. The author, Andrew Moeller, first reviews the attorney-client privilege and the doctrine of "implied waiver" as set forth in Aranson v. Schroeder. Mr. Moeller then analyzes the supreme court's decision in the Petition of Thomas Dean, exploring the "waiver as a matter of law" doctrine. Finally, the author compares the court's rationale with decisions in other jurisdictions.

The second article, written by Elizabeth Baker and Megan Brock, examines two issues, evidentiary rule 404(b) and prosecutorial vindictiveness, in the context of State v. Marti. The authors first provide a historical perspective of Rule of Evidence 404(b) and discuss the test that the New Hampshire Supreme Court developed to admit evidence of uncharged bad acts. Ms. Baker and Ms. Brock then analyze the doctrine of prosecutorial vindictiveness and the standards the court applies when a defendant faces a harsher sentence on retrial following a successful appeal. The authors conclude by considering potential implications of Marti in charging sexual assault cases.

Next, Deanne DiCenzo addresses whether a prisoner is always "in custody" for purposes of Miranda by virtue of the fact that he or she is never free to leave. Ms. DiCenzo first explores two decisions by the New Hampshire Supreme Court: State v. Ford and State v. Dorval. The author then discusses the "additional restraint" test adopted by the court and provides a history of the test. She concludes the article by assessing the test in practice.

In the following article, Danielle Matton considers the evidentiary issue of uncharged sexual misconduct under the new Federal Rules of Evidence 413, 414, and 415. The author first discusses State v. Montgomery. She then provides an in-depth examination of Rules 413, 414, and 415 and how courts have dealt with these rules. Finally, Ms. Matton explores the treatment of sexual propensity evidence by various states, including a hypothetical application of these rules to the Montgomery case.

The next article examines an attorney's duty to disclose information under the New Hampshire Rules of Professional Conduct. Authors Steven Endres and Kelly Swartz consider the New Hampshire and ABA Model Rules 3.3 and 3.4 and the duties these rules impose upon lawyers. Mr. Endres and Ms. Swartz then discuss remedial measures available to attorneys when faced with such situations. The authors conclude by examining the New Hampshire Supreme Court's application of these rules in Feld's Case.

Brenda Sanabria explores the termination of a prisoner's parental rights in the next article. Ms. Sanabria begins by detailing the New Hampshire Supreme Court decision, In re Brittany L. The author then considers the use of telephonic testimony in terms of procedural due process rights. The article concludes with an examination of the significance of appellate procedures.

The final article, written by Ian Bourgoine, focuses on workers' compensation. In his analysis of the Appeal of Wausau Insurance Co., Mr. Bourgoine discusses "cumulative trauma injuries" and analyzes how the court handles such injuries under workers' compensation claims. The author then distinguishes "cumulative trauma" from "recurring injuries." Mr. Bourgoine concludes with an examination of the potential problems the court's "cumulative trauma" analysis will create for future workers' compensation claimants.

This issue marks the ninth year of Franklin Pierce Law Center's commitment to the Annual Survey of New Hampshire Law. We at the Law Center would like to extend our appreciation to the staff and editors of the Bar Journal for their continued support in making the Annual Survey a success, and we look forward to continuing the tradition in future years.




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