Bar Journal - September 1, 2000
STATE V. MARTI: The Outer Limits of “Bad Acts”
By: Elizabeth Baker and Megan Brock
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.
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.
I. MARTI I: RULE 404(B)
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
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
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
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
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
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
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
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.
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
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
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
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
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.
II. MARTI II: PROSECUTORIAL
A. The Cases
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
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
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
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.
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
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
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
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
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
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
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
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
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
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.
4. Id. See N.H. REV. STAT. ANN. § 632-A:2
5. Marti, 140 N.H. at
at 694 (quoting State v. Kirsch, 139 N.H. 647, 653 (1995)).
17. Id. at
18. Id. at 694.
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)).
(quoting State v. Woodbury, 124 N.H. 218, 221 (1983)).
25. FED. R. EVID.
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).
30. State v. Michaud, 135 N.H. 723, 729 (1992).
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
34. LaPierre v. Sawyer, 131 N.H. 609
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
39. N.H. R. EVID. 404(b).
40. McGlew, 139 N.H. at
42. Id. at 506.
v. Whittaker, 138 N.H. 524, 526 (1994); see N.H. R. EVID.
45. McGlew, 139 N.H. at 509-10.
46. Id. at
47. Id. at 509.
48. Id. at 510.
52. MODEL CODE OF PROFESSIONAL
RESPONSIBILITY EC 7-13.
53. Marti, 143 N.H. at
54. Id. at 612.
55. 120 N.H. 176 (1980).
143 N.H. at 612.
57. Id. at
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
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
68. 417 U.S. 21 (1974).
69. 468 U.S. 27
70. See Blackledge, 417 U.S. at
73. Id. at 27.
468 U.S. at 33.
76. 120 N.H. 176 (1980).
78. 133 N.H. 138 (1990).
79. Id. at
80. 128 N.H. 267 (1986).
81. Id. at 271.
at 272 (quoting Blackledge, 417 U.S. at 27-28).
83. Id. at
84. Marti, 143 N.H. at 612 (quoting Gallant, 133 N.H. at
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
92. Id. at 613.
Wayne R. Lafave & Jerold H. Israel, Criminal Procedure, §12.1 (2d ed.
104. See United States v. Batchelder, 442 U.S. 114
Elizabeth Baker, Class of 2001,
Franklin Pierce Law
Concord, New Hampshire.
Megan Brock, Class of 2001,
Franklin Pierce Law
Concord, New Hampshire.