New Hampshire Bar Association
About the Bar
For Members
For the Public
Legal Links
Online Store
Vendor Directory
NH Bar Foundation
Judicial Branch

A confidential, independent resource for NH lawyers, judges and law students.

Visit the NH Bar Association's Lawyer Referral Service (LRS) website for information about how our trained staff can help you find an attorney who is right for you.
New Hampshire Bar Association
Lawyer Referral Service Law Related Education NHBA CLE NHBA Insurance Agency
Member Login
Member Portal

Bar Journal - September 1, 2000

STATE V. MARTI: The Outer Limits of “Bad Acts”



Ordinarily, prosecutors wield tremendous power: in pursuing justice, they are given broad discretion to decide whether and how to prosecute. Nowhere are these decisions more difficult than in child molestation and sexual abuse cases. Often, the complainant in such cases asserts that the molestation occurred on many occasions over a length of time.  Thus, the prosecutor is left with the question of how many charges to bring against the defendant.  In making the decision, the prosecutor often focuses on the different time periods during which the acts occurred.  Doing this, however, gives the false impression that the complainant is alleging only one act of sexual molestation during that time rather than that the molestation occurred on a regular basis, i.e., more than once during that time period.  It also creates evidentiary problems for the prosecutor: to support his or her case, the prosecutor may want to use evidence of the other uncharged acts.

This article analyzes the New Hampshire Supreme Court’s decisions in State v. Marti,1  illustrating two types of limits on prosecutorial discretion: New Hampshire Rule of Evidence 404(b) and the doctrine of prosecutorial vindictiveness.  In particular, this article addresses how the underlying principles of Rule 404(b) and prosecutorial vindictiveness serve to balance the State’s prosecution function against the defendant’s right to a fair trial.


A. The Case

1.  Facts

In 1994, Antonio Marti was tried on three indictments for the aggravated felonious sexual assault of his daughter.2   The indictments alleged acts of anal intercourse during three different time periods: when his daughter was between the ages of ten and thirteen; when she was between the ages of thirteen and sixteen; and when she was sixteen.3

The first two indictments alleged one count each of felonious sexual assault under RSA 632-A:2.4   The third indictment included two separate counts.5   Count one alleged that the accused “dragged the victim into his bedroom and forced her to submit to anal intercourse.”6   Count two alleged coercion: Mr. Marti forced his daughter to submit to him by using his position of authority over her and by subjecting her to years of abuse.7

Before commencement of the trial, Mr. Marti moved to exclude, under New Hampshire Rule of Evidence 404(b), evidence of uncharged acts of sexual assault against his daughter during the same time period as alleged in the three indictments.8   The trial court denied Mr. Marti’s motion without articulating the grounds for its admissibility and without stating for the record the grounds on which it was admitted.  The trial court merely found that Rule 404(b) was inapplicable.
 During the prosecutor’s opening statement, he argued that Mr. Marti had been sexually assaulting his daughter since she was five years old.9  Mr. Marti objected on grounds that this statement was grossly prejudicial.  The trial court overruled the objection reasoning that a limiting instruction to the jury would prevent any potential misapplication of the evidence to the first two indictments.10   The trial court also allowed Mr. Marti’s daughter to testify that she was molested by the defendant from the age of five through sixteen, and that the defendant “fondled her or had anal intercourse with her two or three times a week.”11   The daughter also testified that Mr. Marti forced her to have anal intercourse as alleged in the third indictment.12   The trial court instructed the jury to consider the uncharged prior sexual assaults on the daughter as relevant only to the third indictment alleging coercion.13   Mr. Marti was ultimately convicted on all three indictments and sentenced to 22½ to 45 years in prison.14

2.Appellate Arguments and Court Holding

On appeal, Mr. Marti argued that despite the trial court’s attempt to temper the prejudicial effect of the uncharged bad acts evidence through a limiting instruction, the evidence was highly prejudicial and should have been analyzed and excluded under Rule 404(b).15   Specifically, Mr. Marti contended that evidence of other bad acts is only admissible under Rule 404(b) “if relevant for a purpose other than to prove the defendant’s character or disposition, if there is clear proof the defendant committed the other acts, and if the prejudice to the defendant does not substantially outweigh the probative value of the evidence.”16 

In a unanimous decision, the supreme court reversed, holding that the trial court’s decision to admit evidence of uncharged sexual assaults was highly prejudicial.17   Specifically, the Marti I holding addressed the issue of whether the prejudice to the defendant substantially outweighed the probative value of the prior bad acts evidence admitted either to prove coercion or another valid purpose under Rule 404(b).18   The court reasoned that the nature of the evidence was unfairly prejudicial to Mr. Marti because it is calculated “to appeal to a jury’s sympathies, arouse its sense of horror, provoke its instinct to punish, or trigger other mainsprings of human action that may cause a jury to base its decision on something other than the established propositions in the case.”19   Further, the court held that this type of evidence could easily create “an undue tendency to induce a decision against a defendant on some improper basis”20  since its admission “obscured the charged offense and may have tempted the jury to condemn the defendant for uncharged [acts].”21   The court further held where the number of prior acts is excessive, as in the present case, admission of this evidence could lead a jury to assume that because a defendant had sexually abused a victim in the past, the defendant likely committed the charged sexual assault.22

In remanding the case for a new trial, the court dismissed the State’s argument that the limiting instruction adequately explained the purpose for which the prior acts were admitted, and that the defendant should have requested an additional limiting instruction directed to the prejudicial effect.23   The court reasoned that “cautionary or limiting instructions would not have been able to erase the taint of the prejudicial evidence”24  due to the nature and extent of the defendant’s alleged prior sexual misconduct.

B. Historical Perspective of Rule 404(b) 

Federal Rule of Evidence 404(b) states “[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person.”25   Prior to the codification of Rule 404(b), states recognized this rule under a common law theory,26  which indicates an understanding of the great potential such evidence has to result in a defendant’s wrongful conviction.  The purpose of Rule 404(b) is to prohibit the prosecutor from introducing evidence of prior misconduct when the primary purpose of the evidence is to establish a propensity to commit the alleged crime.27   The underlying policy of Rule 404(b) is to prevent juries from hearing evidence that is prejudicial, potentially leading a jury to assume that the defendant is guilty of the charged act because of other alleged bad acts.28   This rule ensures that the jury is determining guilt strictly on the evidence directly relating to the charged criminal act. 

1. Setting a Higher Standard: New Hampshire’s View of Rule 404(b)
Like the federal rule, New Hampshire Rule of Evidence 404(b) prohibits uncharged prior bad acts for establishing the accused’s bad character or disposition,29  and whether the evidence is admissible is a question of law for the trial judge and not a question of fact for the jury.30   Evidence of child molestation by an accused is so offensive that juries often presume the veracity of the alleged charges.31   Possibly recognizing the emotional impact these types of crimes could have on a jury’s decision-making process, the New Hampshire Supreme Court adopted Rule of Evidence 404(b).32   Therefore, the prosecutor is barred from admitting evidence of prior or subsequent bad acts,33  in both criminal and civil cases,34  unless the evidence is offered for some other purpose than to show character or propensity to commit the crime.

 2. Rule 404(b) and Sexual Assault Cases

Child molestation and abuse continues to be one of the most serious types of crime in our society.35   Given the heinous nature of the crime, prosecutors are under tremendous pressure to obtain convictions.  Social and political pressures may cause a prosecutor to argue an expansive view on the admissibility of evidence of prior bad acts under Rule 404(b) in child molestation prosecutions.  This results in a direct conflict between these social pressures and the fundamental presumption that all people are innocent until proven guilty,36  and must only be convicted if the prosecution presents evidence that proves beyond a reasonable doubt that the accused committed the charged act.37

While the New Hampshire Supreme Court has clarified the standard of proof required to admit evidence under Rule 404(b), it remains one of the most controversial rules of evidence, generating sixty-nine appeals since its adoption in 1985.38   New Hampshire’s standard under Rule 404(b) maypresent the prosecution with difficult decisions in litigating child molestation cases.  Due to the nature of child abuse cases, the abuse generally occurs over an extended period of time.  The practical effect is that alleged victims have difficulty narrowing the abuse into discrete incidents that allow the prosecutor to bring the proper number of charges and to ensure a conviction.  Because the prosecutor’s goal is to ensure a conviction, a prosecutor may attempt to get the other incidents admitted without the rigid analysis required under Rule 404(b) to ensure a conviction.  This interferes with the defendant’s right to confront the charges against him.  It is impossible to confront charges that are not narrowed to specific, identifiable incidents.  Also, if the defendant has not been charged with the other acts, admission of this evidence is unfair because there is no relevance for its admission. 

3.  Introduction of Evidence for “Other Purposes” and the McGlew Test

Rule 404(b) permits the admission of evidence of “other crimes, wrongs or acts” for the purpose of proving “motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”39   If the prosecutor can show that the evidence is offered for some other reason than to show propensity to commit the crime, the evidence will be admissible.40   However, prosecutors should exercise caution when introducing evidence of prior bad acts and ensure it meets the McGlew test; otherwise, the case could be remanded.

In State v. McGlew, the New Hampshire Supreme Court addressed the admissibility of prior bad acts evidence under the intent exception.41   In McGlew, the trial judge permitted the testimony of a young boy about the occurrence and details of a prior uncharged sexual assault by the defendant.42   The supreme court reversed this admission of prior bad acts evidence, holding that the evidence must be relevant for a purpose other than proving the defendant’s character or disposition.43   The court also restated the three-part test in determining whether evidence of prior bad acts is admissible under Rule 404(b) holding: “[t]he evidence must be relevant for a purpose other than proving the defendant’s character or disposition; there must be clear proof that the defendant committed the act; and the probative value of the evidence must not be substantially outweighed by its prejudice to the defendant.”44

The court used the McGlew case to provide detailed guidance to the State in offering prior bad acts evidence and to the trial courts in admitting such evidence.  The court stated that when offering evidence of uncharged bad acts, “[t]he State, in offering evidence of other wrongs under Rule 404(b), must state the specific purpose for which the evidence is offered and must articulate the precise chain of reasoning by which the offered evidence will tend to prove or disprove an issue actually in dispute, without relying upon forbidden inferences of predisposition, character or propensity.”45   Further, the court “strongly encouraged the trial courts to assist our review by making specific findings to support their evidentiary rulings,”46  thus making it easier for the court to exercise its supervisory authority in determining whether the trial court’s reasoning for admitting the evidence was fair.47   Additionally, the trial court must make clear on the record the theory upon which the evidence is admitted, and the trial court must explain how the evidence applies to the issue without implicating propensity.48

The McGlew holding also provided that the record must “reflect the considerations underlying a trial court’s balancing of the other bad act evidence’s probative value against its prejudice to the defendant.”49   Further, when the trial court is weighing prejudice under Rule of Evidence 404(b), it must consider the weight of the other bad act to determine the extent of the emotional impact it will have on a jury.50   Additionally, the trial court must also consider the value of the other bad act within the context of the case as a whole.51

Despite the court’s rigorous guidance provided under McGlew in 1995 for what is required to introduce evidence of uncharged bad acts, the Marti I trial court did not require the State to articulate the grounds for its admissibility, nor did the trial court state for the record the grounds for which the evidence was being admitted.

C.  Implications of Marti I

The prosecuting attorney possesses immense power: he or she controls the decision of the number of charges that the defendant will confront.  The number of charges may affect a jury’s perception of the defendant and may ultimately affect the judge’s decision.  Further, the duty of the prosecutor differs from that of the usual advocate in that the prosecutor’s duty “is to seek justice, not merely to convict.”5

In offering evidence of prior bad acts in child molestation cases, or other emotionally charged offenses that can lead to unfair results for the defendant, the relevant analysis for admission is set forth within the McGlew holding.  Notably, this test is one limit on prosecutorial discretion that ensures that the prosecutor’s purpose in introducing evidence is to show something other than propensity to commit the alleged crime.  The communication from the court is clear: the prosecutor must concisely state for the record the reasoning for which the evidence is being offered; and the trial court must make specific findings on the record to ensure the reasoning and admission of the evidence was fair.


A. The Cases

1. Facts

At the second trial, the same prosecutor tried Mr. Marti.  According to the defendant, the prosecutor declared that he would charge the prior bad acts since the court disallowed him to enter them into evidence.53   The prosecutor then nol prossed the first indictment and replaced it with 104 new indictments for aggravated felonious sexual assault, alleging one act of anal intercourse per week when the victim was ten and eleven years old.  Mr. Marti moved to have the new indictments dismissed, arguing prosecutorial vindictiveness.  The superior court found no evidence of vindictiveness and allowed the indictments to stand.  Mr. Marti was subsequently convicted on all 106 indictments and sentenced to 45 to 90 years in prison.

2. Appellate Arguments and Court Holding

On appeal, Mr. Marti contended that his due process rights under State and Federal Constitutions were violated by the trial court’s denial of his motion to dismiss the 104 indictments for prosecutorial vindictiveness.54   He argued that the additional 104 indictments brought against him after his successful appeal raised a presumption of vindictiveness, which the State failed to rebut.

Relying on State v. Novosel,55  the State maintained that a presumption of vindictiveness does not arise unless the prosecutor “ups the ante,” seeking a greater punishment after a retrial.56   In this case, the prosecutor sought the same penalty for Mr. Marti that he had received in the first trial. Furthermore, the State argued that a presumption of prosecutorial vindictiveness was not warranted because the prosecutor was motivated by valid concerns, holding Mr. Marti accountable for his actions given the court’s evidentiary ruling.

In reversing, the New Hampshire Supreme Court held that the trial court erred in failing to dismiss the 104 additional indictments.57   The court, in a 3-2 decision, agreed with Mr. Marti that a presumption of prosecutorial vindictiveness arose when the prosecutor brought 104 additional indictments after the defendant’s successful appeal and increased the potential punishment on retrial.  The court also held that the State failed to rebut the presumption.58

In making this decision, the court stated that it was not necessary for the prosecutor to seek a harsher sentence in order for the presumption to arise because the trial court is not bound by the prosecutor’s sentence recommendations.59   In this case, despite the sentence that the prosecutor sought, his charging decision subjected the defendant to a significantly increased sentence.  The court further held that to rebut the presumption, the State must show objective reasons for the new charges that were not present when the prosecutor initially charged the defendant.60   Here, the prosecutor acknowledged that he relied on information he knew prior to the first trial in charging Mr. Marti with additional counts.

3. Dissent

In dissenting, Justice Horton disagreed with the majority on two major points: first, that a presumption of prosecutorial vindictiveness was established; and second, that the State did not effectively rebut the presumption.61

According to Horton, “[t]he law is plain that an increased punishment upon retrial after appeal does not necessarily justify the assumption that the prosecutor was motivated by vindictiveness.”62   Horton relied on a Fifth Circuit decision, which outlined the following test to determine whether a presumption of prosecutorial vindictiveness arises:

If the defendant challenges a prosecutorial decision to increase the severity of charges following a successful appeal, the court must examine the prosecutor’s actions in the context of the entire proceedings. If any objective event or combination of events in those proceedings should indicate to a reasonable minded defendant that the prosecutor’s decision to increase the severity of charges was motivated by some purpose other than a vindictive desire to deter or punish appeals, no presumption of vindictiveness is created.63

Under this test, a presumption of vindictiveness would not arise if the prosecuting attorney had legitimate reasons for imposing more serious charges.

Here, the prosecutor’s decision to add the additional 104 indictments ensued from the evidentiary obstacle placed before him. At the first trial, the prosecutor relied on a pretrial ruling allowing him to use as evidence certain uncharged sexual assaults on the same victim.  By disallowing the prior bad acts evidence on retrial, the court “eviscerated the trial strategy on which the prosecutor’s initial charging decision was based.”64  For these reasons, Horton found that a presumption of vindictiveness was not warranted.

Moreover, Horton argued that the court’s evidentiary ruling in Marti I (disallowing the prior bad acts evidence) served as an effective rebuttal to the presumption of prosecutorial vindictiveness.65   Because of the intervening decision between the two trials, the prosecuting attorney had to alter his trial strategy, upon which his initial charging decision was based.  According to Horton, this indicates that the increased charges were not meant to punish Mr. Marti for his successful appeal, and thus refutes the charge of vindictiveness.

B. History of Prosecutorial Vindictiveness

Prosecutorial vindictiveness emerged from the doctrine of judicial vindictiveness, according to which a defendant’s due process rights are violated when the same court imposes a harsher sentence on retrial following a successful appeal.66   In such cases, a presumption of vindictiveness arises, and the burden shifts to the state to rebut the claim.67

1. United States Supreme Court Cases

The United States Supreme Court applied the judicial vindictiveness doctrine to set the standard for prosecutorial vindictiveness: Blackledge v. Perry68  and Thigpen v. Roberts69  establish a rebuttable presumption of vindictiveness when a prosecutor “ups the ante” in response to a defendant’s election to pursue an appeal.70   When a defendant exercises the right to appeal his or her conviction, the prosecutor cannot subject that defendant to more severe punishment by increasing the number or degree of charges.  Doing so constitutes a denial of due process and gives rise to a presumption of vindictiveness on the part of the prosecutor.  That is, the Court will presume that the prosecutor amplified the charges to retaliate against the defendant for appealing the conviction.  The burden then shifts to the state to refute the charge of vindictiveness.

In Blackledge, the defendant was convicted of an assault misdemeanor in a North Carolina district court and appealed for a trial de novo in the superior court.71   Before the trial de novo, the prosecutor obtained an indictment, based upon the same act, for the felony offense of assault with a deadly weapon with intent to kill and inflict serious bodily injury.  The defendant sought habeas relief, asserting that his due process rights were violated when the State substituted the felony charge for the misdemeanor at his trial de novo.  The United States Supreme Court held that a defendant “is entitled to pursue a statutory right to a trial de novo, without apprehension that the State will retaliate by substituting a more serious charge for the original, thus subjecting him to a significantly increased potential period of incarceration.”72   In so holding, the Court noted “that the Due Process Clause is not offended by all possibilities of increased punishment upon retrial after appeal, but only by those that pose a realistic likelihood of ‘vindictiveness.’”73  

Reaffirming Blackledge, the United States Supreme Court in Thigpen found that a presumption of vindictiveness arose when the prosecutor charged the defendant with felony manslaughter after he invoked his right to appeal his misdemeanor conviction.74   Following an automobile accident in which a passenger was killed, the defendant was tried and convicted of four misdemeanors: reckless driving, driving while his license was revoked, driving on the wrong side of the road and driving while intoxicated.  After the defendant exercised his right to appeal for a trial de novo, the prosecutor charged the defendant with a manslaughter indictment based upon the same conduct which was the basis for the misdemeanor convictions.  The Court held that substituting a felony indictment for the misdemeanor charge after the defendant invoked his right to appeal gave rise to a presumption of prosecutorial vindictiveness in violation of the due process clause of Fifth Amendment.74

2. New Hampshire Supreme Court Cases

While the New Hampshire Supreme Court has recognized the doctrine of prosecutorial vindictiveness prior to Marti, it had not found that such vindictiveness existed based on the facts under review.  In State v. Novosel,76  the prosecution reversed its position regarding the defendant’s insanity on remand from an appellate court.  The defendant was indicted for second-degree murder, but after the grand jury certified him as insane, the State nol prossed the indictment and sought to have him committed for life to the New Hampshire State Hospital.  Upon the defendant’s challenge to the grand jury proceeding, the court held the proceeding to be unconstitutional on federal grounds and ordered the defendant’s release.  At the second trial, the State contested the defendant’s insanity defense.  He was subsequently convicted of second-degree murder and sentenced to 40 years to life in prison. 

On appeal, Novosel argued that the State’s change of position was intended to increase his penalty from a hospital commitment to a criminal sentence, and thus constituted prosecutorial vindictiveness.  The court held that prosecutorial vindictiveness arises when the prosecution “ups the ante” during retrial, resulting in a harsher sentence being imposed.77   In this case, there was no “upping the ante” – although both penalties are harsh (prison and the hospital commitment), the court concluded that one was not definitively harsher than the other.

Similarly, in State v. Gallant,78  the court held that the presumption of prosecutorial vindictiveness was not warranted when the county attorney sought to bargain with the defendant regarding his right to appeal – the defendant waived his right to appeal in exchange for an unenhanced sentence recommendation.79   The court noted that, similar to using the possibility of a further criminal charge in bargaining for a guilty plea, the prosecutor can recommend an enhanced sentence when the defendant does not plead guilty.  The bargain for a waiver of appeal involved a comparable “give and take.”  The court reasoned that this did not involve prosecutorial vindictiveness because the county attorney had intended before trial to recommend enhanced sentencing.  In addition, the prosecution had no control over the sentence imposed and was free to recommend an enhanced sentence.

In State v. Goding,80  the court found that the State successfully rebutted the presumption of prosecutorial vindictiveness where the prosecutor changed the charge from DWI-first offense to DWI-second offense before a trial de novo in superior court.  The defendant was initially charged with DWI-second offense, but, due to a lack of evidence of the prior offense, the prosecutor nol prossed that charge before trial and replaced it with DWI-first offense.  After being convicted in district court, the defendant exercised his right to a trial de novo in superior court.  At that point, the prosecutor nol prossed the district court complaints and charged the defendant with DWI-second offense.

The court stated that prosecutorial vindictiveness is presumed when a defendant faces a harsher charge at a de novo trial.81   “A person convicted of an offense is entitled to pursue his statutory right to a trial de novo, without apprehension that the state will retaliate by substituting a more serious charge for the original one, thus subjecting him to a significantly increased potential period of incarceration.”82  Although a presumption of vindictiveness arose in this case, the State successfully rebutted it by introducing evidence that the heightened charge was not due to vindictiveness.  Instead, the State established that:

(1) the defendant conceded that DWI-second offense was the original charge, (2) the defendant prepared for the district court trial based on the more serious charge, (3) there was no evidence of prosecutorial statements indicating vindictiveness or a motive to chill the defendant’s right to appeal, and (4) it was only a matter of fortuity that the defendant was not initially tried for DWI-second offense.83

C. The Test for Prosecutorial Vindictiveness

“[A] prosecutor may not exercise his or her discretion to bring a criminal charge with the aim of punishing a lawful exercise of the right to appeal.”84  When the prosecutor “ups the ante” by increasing the number or severity of charges after an appeal, vindictiveness will be presumed.85   In such cases, the burden of proof shifts to the State to rebut the presumption by demonstrating that the charging decision was not motivated by vindictiveness.86   Thus, the two-prong analysis adopted by the court is: (1) determining whether the presumption of vindictiveness is warranted; if so, then (2) determining whether the State has sufficiently rebutted the presumption.87

1. Sufficiency of Evidence Required to Warrant the Presumption

According to Marti II, the defense need not prove actual vindictiveness.88   Instead, vindictiveness will be presumed when the charging decision raises a “realistic likelihood of vindictiveness.”89   The court articulated two reasons for this presumption.  First, the court noted that “motives are complex and difficult to prove.”90   Secondly, the fear of enhanced punishment may violate due process by unconstitutionally deterring future defendants from exercising their right to appeal.91

The court specifically rejected two arguments propounded by the State.  The State first argued that the prosecutor must seek a harsher sentence before a presumption of vindictiveness will arise.92   In this case, even though the prosecutor increased the number of charges on retrial, he did not seek a harsher sentence from the trial court.  In rejecting that proposition, the court announced the rule that the prosecutor’s conduct in “subject[ing] the defendant to a significantly increased sentence was sufficient to raise a presumption of vindictiveness.”93   Thus, the presumption was warranted even though the prosecutor sought the same penalty on retrial.94

The State further argued against the presumption “when the objective circumstances of the case indicate that the prosecutor’s action is at least equally attributable to valid prosecutorial concerns.”95   The State relied on the court’s previous ruling, disallowing certain evidence to be admitted, to indicate a valid prosecutorial reason for increasing the charges against Mr. Marti.96   The court rejected this argument, again articulating the “realistic likelihood of vindictiveness” standard.97   According to the court, potentially subjecting Mr. Marti to a more severe sentence established a realistic likelihood of vindictiveness.98

2. Rebutting the Presumption

To successfully rebut the presumption of vindictiveness, the State “must show objective reasons for the new charges that were not present when the prosecutor initially charged the defendant.”99   In Marti II, the prosecutor argued that objective circumstances for adding the new charges did exist.  In rebutting the presumption, the prosecutor contended that at the second trial “he determined for the first time that thevictim was being literal, and not figurative, when she stated that the sexual abuse was a weekly event”; that he brought the additional charges to comply with the court’s evidentiary ruling; and that he did not seek an increased sentence.100

The court rejected all three arguments, stating that these were not sufficient objective reasons for pursuing the additional 104 indictments.101   The court based its decision on the fact that the prosecutor “relied on information he had known prior to the first trial” and that “the prosecutor’s recommendations for sentencing are not binding on the trial judge.”102   The court failed to comment on the prosecutor’s argument regarding the evidentiary ruling.

D. Implications of Marti II

Historically, the prosecutor has had unfettered discretion in making charging decisions.103  Such discretion generally includes whether to prosecute, what charges to file, and the number of charges to bring.104

In holding that the prosecutor acted vindictively by increasing the number of charges against Mr. Marti, the New Hampshire Supreme Court in Marti II effectively put a check on the prosecutor’s power.  When a case is remanded after a successful appeal, the prosecutor will have to consider the sentencing implications of the charges he or she decides to bring at the second trial so as not to increase the defendant’s potential punishment.  The court’s message is clear: unless additional information is uncovered between the two trials, the prosecutor cannot subject the defendant to harsher punishment after a successful appeal, even if the prosecutor does not purposely seek additional punishment.


The Marti decisions illustrate that a prosecutor’s discretion is not unrestrained.  Rule of Evidence 404(b) and prosecutorial vindictiveness serve as two limits on the prosecutor’s power.  As held in Marti I, only in limited circumstances can the prosecutor admit evidence of uncharged bad acts; it is generally inadmissible character evidence under Rule 404(b).  Marti II presents the prosecutor with a further issue in deciding how many charges to bring: he or she may be held, on remand, to the initial charging decision or face the consequences of prosecutorial vindictiveness.  Thus, the possible implication of these two holdings is that, in sexual molestation and abuse cases, prosecutors will charge often and early.


1. State v. Marti, 140 N.H. 692 (1996); State v. Marti, 143 N.H. 608 (1999).
2. Marti, 140 N.H. at 693.
3. Id.
4. Id. See N.H. REV. STAT. ANN. § 632-A:2 (1996).
5. Marti, 140 N.H. at 693.
6. Id.
7. Id.
8. Id.
9. Id.
10. Id.
11. Id.
12. Id.
13. Id.
14. Id.
15. Id.
16. Id. at 694 (quoting State v. Kirsch, 139 N.H. 647, 653 (1995)).
17. Id. at 695.
18. Id. at 694.
19. Id.
20. Id. at 695 (quoting State v. Cochran, 132 N.H. 670, 672 (1990)).
21. Id. (quoting State v. Carter, 140 N.H. 5 (1995)).
22. Id.
23. Id.
24. Id. (quoting State v. Woodbury, 124 N.H. 218, 221 (1983)).
25. FED. R. EVID. 404(b).
26. See  Edward J. Imwinkelried, Undertaking the Task of Reforming the American Character Evidence Prohibition: The Importance of Getting the Experiment Off on the Right Foot, 22 FORDHAM URB. L.J. 285, 286 (1995).
27. See, e.g., FED. R. EVID. 404(b); see also United States v. Fosher, 568 F.2d 207, 212 (1st Cir. 1978) (holding that prior bad acts evidence is not admissible in proving propensity to commit a crime).
28. State v. Cochran, 132 N.H. 670, 672 (1990) (holding that admission of prior bad acts may induce a jury to convict on an improper basis).
29. Id.
30. State v. Michaud, 135 N.H. 723, 729 (1992).
31. Mary Christine Hutton, Commentary, Prior Bad Acts Evidence in Cases of Sexual Conduct with a Child, 34 S.D.L. REV. 604 (1989) (noting that prior misconduct is persuasive in child-molestation cases).
32. N.H. R. EVID. 404(b).  The New Hampshire Supreme Court adopted Rule 404(b) in 1985.  Prior to enacting evidentiary Rule 404(b), the New Hampshire Supreme Court followed a common law rule to determine whether evidence of other bad acts was admissible. See State v. Tarsitano, 134 N.H. 730 (1991).  In 1986, the New Hampshire Supreme Court extended the rule in Tarsitano to adopted evidentiary Rule 404(b).  See State v. Trainor, 130 N.H. 371 (1988).
33. State v. Hastings, 137 N.H. 601 (1993) (extending rule to subsequent bad acts).
34. LaPierre v. Sawyer, 131 N.H. 609 (1989).
35. See  Imwinkelried, supra note 26, at 297 (polls conducted in 1986 and 1989 determined that adults rank murder, rape, incest and child abuse as the most heinous types of crimes, respectively).  
36. See, e.g., Coffin v. United States, 156 U.S. 432, 453 (1895) (holding that “there is a presumption of innocence in favor of the accused is the undoubted law…and its enforcement lies at the foundation of the administration of our criminal law”).
37. See, e.g., Greer v. United States, 245 U.S. 559, 560 (1918) (noting that in convicting a defendant, the court must presume the defendant is innocent until the prosecution proves the defendant’s guilt beyond a reasonable doubt).
38. See, e.g., State v. Trainor, 130 N.H. 371 (1988); State v. Bassett, 139 N.H. 493 (1995).
39. N.H. R. EVID. 404(b).
40. McGlew, 139 N.H. at 508.
41. Id.
42. Id. at 506.
43. Id.
44. State v. Whittaker, 138 N.H. 524, 526 (1994); see N.H. R. EVID. 403.
45. McGlew, 139 N.H. at 509-10. 
46. Id. at 508.
47. Id. at 509.
48. Id. at 510.
49. Id.
50. Id.
51. Id.
53. Marti, 143 N.H. at 610.
54. Id. at 612.
55. 120 N.H. 176 (1980).
56. Marti, 143 N.H. at 612.
57. Id. at 614.
58. Id.
59. Id.
60. Id.
61. Id. at 618 (Horton, J., dissenting).
62. Id. at 620.
63. Id. (citing United States v. Krezdorn, 718 F.2d 1360, 1364 (5th Cir. 1983) (en banc) (holding that no presumption of prosecutorial vindictiveness arose when the prosecutor increased the severity of charges as a result of an evidentiary ruling), cert. denied, 465 U.S. 1066 (1984)).
64. Id. at 621.
65. Id. at 623.
66. See North Carolina v. Pearce, 395 U.S. 711 (1969); see also Colten v. Commonwealth of Kentucky, 407 U.S. 104 (1972) (finding no presumption of judicial vindictiveness when the defendant’s harsher sentence on retrial was imposed by a different court than had initially heard the case).
67. Id.
68. 417 U.S. 21 (1974).
69. 468 U.S. 27 (1984).
70. See Blackledge, 417 U.S. at 28.
71. Id.
72. Id.
73. Id. at 27.
74. Thigpen, 468 U.S. at 33.
75. Id.
76. 120 N.H. 176 (1980).
77. Id. at 181.
78. 133 N.H. 138 (1990).
79. Id. at 148-49.
80. 128 N.H. 267 (1986).
81. Id. at 271.
82. Id. at 272 (quoting Blackledge, 417 U.S. at 27-28).
83. Id. at 272-73.
84. Marti, 143 N.H. at 612 (quoting Gallant, 133 N.H. at 148).
85. Id.
86. Id.
87. Id.
88. Id.
89. Id. (citing Goding, 128 N.H. at 272).
90. Id. (citing United States v. Goodwin, 457 U.S. 368, 373 (1982)).
91. Id. (citing Blackledge, 417 U.S. at 28).
92. Id. at 613.
93. Id.
94. Id.
95. Id.
96. Id.
97. Id.
98. Id.
99. Id. at 614.
100. Id.
101. Id.
102. Id.
103. See Wayne R. Lafave & Jerold H. Israel, Criminal Procedure, §12.1 (2d ed. 1992).
104. See United States v. Batchelder, 442 U.S. 114 (1979).

The Author
Elizabeth Baker, Class of 2001,
Franklin Pierce Law Center,
Concord, New Hampshire.

The Author
Megan Brock, Class of 2001,
Franklin Pierce Law Center,
Concord, New Hampshire.

NHLAP: A confidential Independent Resource

Home | About the Bar | For Members | For the Public | Legal Links | Publications | Online Store
Lawyer Referral Service | Law-Related Education | NHBA•CLE | NHBA Insurance Agency | NHMCLE
Search | Calendar

New Hampshire Bar Association
2 Pillsbury Street, Suite 300, Concord NH 03301
phone: (603) 224-6942 fax: (603) 224-2910
© NH Bar Association Disclaimer