Supreme Court At-a-Glance Contributor Sam Harkinson, Previously employed as an Assistant County, Attorney, and as an insurance adjuster, now as an associate at Hoefle, Phoenix, Gormley & Roberts

No 2020-0148

March 30, 2020



  • Whether certain evidence was authenticated as required by New Hampshire Rule of Evidence 901, and whether the trial courts admission of said evidence was an abuse of discretion.


Following jury trial, the Defendant was convicted of one count of misdemeanor domestic violence.  Prior to trial, the Defendant moved to exclude evidence of a phone call, arguing that there was insufficient evidence that the Defendant was the one who had made the phone call.  The trial court concluded that the call itself provided the specificity of the conversation was enough to establish that the speaker was the Defendant.

On appeal the Defendant unsuccessfully argued that, in cases where there is no voice-identification or a connection between the number used and the purported speaker, NH Rule of Evidence 901 required a large quantum of other evidence to sufficiently satisfy the requirements of Rule 901.

In upholding the trial court’s admission of the evidence, the Court found that the issue of the quantum of proof necessary to authenticate statements made on a phone call is an issue of first impression in New Hampshire.  However, the Court found that its earlier decision in State v. Palermo, 168 N.H. 387 (2015) was sufficient to establish the rules governing authentication and found that Palermo was instructive on the issue in the instant case.  In applying the factors found in Palermo to the Defendant’s case, the Court concluded that the trial court had not abused its discretion in admitting the phone call, finding that the phone call contained sufficient details to link it to the Defendant.


The Office of Attorney General John M. Formella and The Office of Solicitor General Anthony J. Galdieri, Zachary L. Hingam, Assistant Attorney General on the brief and orally for the State of New Hampshire.  Office of the Appellate Defender, Senior Assistant Appellate Defender  Thomas Barnard for the Defendant.