Eric Wind Attorney at NH Public Utilities Commission in Concord.

Supreme Court At-a-Glance Contributor Eric Wind, Attorney at the NH Public Utilities Commission in Concord, N.H.

No. 2020-0025

September 30, 2021

Affirmed

 

  • Whether the trial court erred when it denied defendant’s request to enter portions of a transcript of an interview with the police into the record.
  • Whether the trial court erred by allowing a witness for the State to offer expert testimony while testifying as a lay witness.

 

Following a jury trial and conviction on various counts of sexual assault, the defendant appealed his convictions. The defendant argued the trial court erred when it ruled that he was not entitled to enter portions of a transcript of his interview with a detective into the record after the detective testified on direct examination about the conversation the detective had with the defendant. The Court evaluated the defendant’s argument under N.H. R. Ev. 106 (a) and (b), and held that because defendant was allowed to use the transcript to refresh the recollection of the detective and cross examine the detective, the trial court sustainably exercised its discretion when it ruled the defendant did not have a right to introduce portions of the transcript into the record.

The defendant also argued that the trial court erred by allowing an officer who was testifying as a lay witness to provide expert testimony. The defendant identified three instances where the officer’s testimony was improper expert testimony, however the defendant and the Court focused on one specific instance where a police officer explained that witnesses in sexual abuse investigations need time to “process” traumatic events before being interviewed, and that, based on professional training, “…disclosure is a process.” The Court held that an average juror is familiar with the concept of “processing” and that the officer’s testimony did not fall within the scope of N.H. R. Ev. 701 relating to expert testimony. The Court held that testimony based upon a witness’s personal knowledge gained through employment is admissible as lay testimony, so long as the witness does not testify to scientific or technical process which an average lay person would not be able to comprehend. The defendant also argued that the testimony was expert because it was offered to explain why the victim might have delayed reporting an assault or offered inconsistent accounts. The Court noted that the challenged testimony was offered on redirect to allow the witness to elaborate on a question raised by the defense during cross examination; and was offered to explain police procedures, not the behavior of victims. Based on that context, the Court differentiated this matter from State v. Gonzalez, 150 N.H. 74 (2003) and held that the trial court sustainably exercised its discretion.

 

Gordon J. MacDonald, attorney general (Elizabeth C. Woodcock, senior assistant attorney general, on the brief and orally) for the State. Rudolph Freidmann, Boston, MA (William A. Korman on the brief and orally) for the defendant.