Criminal Law/Constitutional Law

Shenanne Tucker

Shenanne Tucker
Practiced law in
New Hampshire and Maine since 2002,
and currently is
predominantly privately employed working
in insurance.

An appeal from Carroll County No. 2018-0464

Nov. 22, 2019


  • Whether application of and conviction under RSA 649-A under the presented circumstances violated the defendant’s First Amendment of the United States Constitution protections of freedom of speech.
  • Whether the state “opened the door” in opening statements to certain cross-examination, and whether the trial court’s denial of the defendant’s request for such cross-examination was an unsustainable exercise of discretion.

The defendant argued that conviction under RSA 649-A for counts of manufacturing and possessing child sexual abuse images (photographs and videos of a 16-year-old minor engaged in legal consensual sexual conduct with the defendant that he had not distributed) violated his right to free speech under the First Amendment of the United States Constitution and under Part I, Article 22 of the New Hampshire State Constitution. The defendant further argued that the trial court erred in denying him an ability to cross-examine the minor to introduce statements that she had been involved in two prior sexual relationships and had previously photographed such activity.

After finding that the defendant waived his State Constitutional arguments, the Court held that the images at issue, made with an actual child, were not protected by the First Amendment of the federal constitution because they were in a category “which historically have been unprotected by the First Amendment.” The Court agreed with the defendant that the child pornography exception to the First Amendment “must bear a close causal connection to criminal activity.” But, that criminal activity is the production of the images themselves. Neither a violation of a separate statute or distribution of the images is required to establish that the defendant’s actions were “intrinsically related to the production of child pornography with an actual minor” and thus “implicated the interests of an actual minor.”

Finding that remarks in opening statements “may trigger the ‘opening the door’ doctrine,” the Court held that the defendant nevertheless failed to demonstrate that the court’s ruling against cross-examination was clearly untenable or unreasonable to the prejudice of his case. New Hampshire has only ever applied the “specific contradiction doctrine” to counteract a misleading advantage by the party opening the door. But, while both doctrines require different showings and allow admission of varying evidence, under these facts, neither the “curative admissibility doctrine” nor the “specific contradiction doctrine” compelled the requested cross-examination into the minor’s prior sexual history.

The Court accordingly upheld the convictions.


Gordon J. MacDonald, attorney general, with Elizabeth A Lahey, assistant attorney general (on the brief) and Susan P. McGinnis, senior assistant attorney general (orally), for the State.


Thomas Barnard, senior assistant appellate defender, of Concord (on the brief and orally), for defendant.