No. 2019-0653

Supreme Court At-a-Glance Contributor Laura D. Devine, Civil Litigation Attorney, Boyle Shaughnessy Law, Manchester, NH

May 5, 2021



  • Whether a defendant is deprived of his right to a fair and impartial jury when a court denies his motions to strike jurors for cause and whether the trial court erred by withholding certain confidential records


The defendant was convicted of three counts of aggravated felonious sexual assault after a jury trial. On appeal, the defendant argued that the trial court erred when it denied his motions to strike for cause three prospective juror and violated his right to an impartial jury under the State and Federal Constitutions and when it failed to disclose certain confidential records following an in camera review.

The Court noted the relevant facts as follows.

The aggravated felonious sexual assault convictions arose from allegations by a family member of the defendant that he sexually assaulted her on several occasions while she was a minor. The confidential documents subject to in camera review were DCYF records.

Regarding his right to an impartial jury, there were three jurors that the defendant moved to strike for cause. The Court observed that the three jurors, who were deemed qualified over the objection of the defendant, participated in the jury deliberations that resulted in his convictions. The Court included the relevant factual background of the jurors and transcripts of the relevant voir dire transcript excerpts. One juror had close family members who were police officers and in the course of her work had to report an instance of child sexual abuse; one juror, a nurse who previously worked with sexually abused minors, was married to someone who was sexually abused by a family member as a child; and one juror was acquainted with one of the law enforcement officer witnesses. Each juror was asked if they could be fair and impartial and the responses varied factually, however, the trial court found that they could be. The Court found that the trial court sustainably exercised its discretion when it denied the defendant’s motion to strike. The Court noted that the trial court assessment of the juror’s responses included more than the words documented on the record. The Court observed that the trial court could have created a better record by pressing jurors to clarify the meaning of certain statements. The Court noted that if there are legitimate concerns as to whether a juror can be impartial, the trial court has a duty to determine whether the juror can be indifferent. The Court noted that the trial court judge is in the best position to assess and respond to practical challenges encountered during jury selection and therefore, trial court judges are encouraged to probe as necessary for further explanation.

Regarding the in camera review of confidential records, the Court decided State v. Girard, which clarified the standard the trial court should apply in determining whether confidential records must be disclosed to a defendant. Therefore, the Court remanded this issue to the trial court with instructions while the appeal was pending. The Court instructed that should the trial court determine that it would have disclosed any of the withheld records before trial had it applied the standard set forth in Girard, and that it must order a new trial unless it determined that its failure to disclose such records was harmless beyond a reasonable doubt.

The Court concluded that the trial court sustainably exercised its discretion when it denied the defendant’s motions to strike and did not disclose certain confidential DCYF records after following the Court’s instructions on remand.


Thomas Barnard, Appellate Defender, Concord, for the defendant. Gordon MacDonald, attorney general (Elizabeth Woodcock, assistant attorney general) for the State.