hearsay rule in New Hampshire

2006See Town of Weave v. Paquette, 121 N.H. 653, 659 (1981).

1986Town of Weare v. Paquette, 121 N.H. 653, 659 , 434 A.2d 591, 596 (1981) (citing State v. Hudson, 121 N.H. 6, 11 , 425 A.2d 255, 257 (1981)).

2019“The justification for this exception to the hearsay rule rests upon the assumption that one does not make statements that would damage oneself unless the statement is true.” State v. Kiewert, 135 N.H. 338, 343 (1992) (quotations and brackets omitted). 11 On appeal, the defendant argues the trial court erred in ruling that the statements at issue were against Papillon’s penal interest.

2017“The justification for this exception to the hearsay rule rests upon the assumption that one does not make statements that would damage oneself unless the [statements are] true.” Id. (quotations and brackets omitted).

1989They direct our attention to this court’s decision in State v. Martineau, 114 N.H. 552 , 324 A.2d 718 (1974), and they assert that a rape victim’s hearsay statements, made more than two hours after the event, were contemporaneous with the event and, therefore, were admissible under the excited utterance exception to the hearsay rule.

1989They direct our attention to this court’s decision in State v. Martineau, 114 N.H. 552 , 324 A.2d 718 (1974), and they assert that a rape victim’s hearsay statements, made more than two hours after the event, were contemporaneous with the event and, therefore, were admissible under the excited utterance exception to the hearsay rule.

1986Town of Weare v. Paquette, 121 N.H. 653, 659 , 434 A.2d 591, 596 (1981) (citing State v. Hudson, 121 N.H. 6, 11 , 425 A.2d 255, 257 (1981)).

1986Town of Weare v. Paquette, 121 N.H. 653, 659 , 434 A.2d 591, 596 (1981) (citing State v. Hudson, 121 N.H. 6, 11 , 425 A.2d 255, 257 (1981)).

1974While responses to questions may still possess the requisite spontaneity to be admissible as excited utterances (Semprini v. Railroad, 87 N.H. 279, 280 , 179 A. 349, 350 (1935); Gibbs v. Wilmeth, 261 Iowa 1015 , 157 N.W.2d 93 (1968); Commonwealth v. Hampton, 351 Mass. 447 , 221 N.E.2d 766 (1966)), a mere narrative of past events without any evidence of spontaneity does not possess sufficient indicia of reliability and trustworthiness to qualify as an exception to the hearsay rule.

1974While responses to questions may still possess the requisite spontaneity to be admissible as excited utterances (Semprini v. Railroad, 87 N.H. 279, 280 , 179 A. 349, 350 (1935); Gibbs v. Wilmeth, 261 Iowa 1015 , 157 N.W.2d 93 (1968); Commonwealth v. Hampton, 351 Mass. 447 , 221 N.E.2d 766 (1966)), a mere narrative of past events without any evidence of spontaneity does not possess sufficient indicia of reliability and trustworthiness to qualify as an exception to the hearsay rule.

2003Ev. 804(b)(6); see also Perry v. Parker, 101 N.H. 295, 297 (1958) (“The fundamental inquiry is not the name or number of the exceptions to the hearsay rule but whether under the circumstances [the hearsay] satisfies the reasons which lie behind the exceptions.” (quotations and citation omitted)).

1993What Chief Justice Kenison wrote remains true: “The fundamental inquiry is not the name or number of the exceptions to the hearsay rule but whether under the circumstances [the evidence] satisfies the reasons which lie behind the exceptions.” Perry v. Parker, 101 N.H. 295, 297 , 141 A.2d 883, 884 (1958) (quotation omitted).

2007See Simpkins v. Snow, 139 N.H. 735, 738 , 661 A.2d 772 (1995); N.H.R.

2007See Simpkins v. Snow, 139 N.H. 735, 738 (1995); N.H.

2007To qualify as an excited utterance, the statement “must be a spontaneous verbal reaction to some startling or shocking event, made at a time when the speaker was still in a state of nervous excitement produced by that event and before [s]he had time to contrive or misrepresent.” State v. Gordon, 148 N.H. 710, 720 (2002) (quotation omitted).

2006State v. Gordon, 148 N.H. 710, 719 (2002).

2006See State v. Francoeur, 146 N.H. 83, 87 (2001).

2002Hearsay statements are “inadmissible unless they fall within one of the exceptions to the hearsay rule.” State v. Francoeur, 146 N.H. 83, 86 (2001).

2005The court supported that conclusion by citing Worster v. Watkins, 140 N.H. 546, 550 (1995), in which we held that a police report was not admissible under the business records and public records exceptions to the hearsay rule.

1996Worster v. Watkins, 140 N.H. 546, 548 , 669 A.2d 212, 215 (1995).

2003State v. Bonalumi, 127 N.H. 485, 488 (1985); see N.H.

1992State v. Bonalumi, 127 N.H. 485, 487 , 503 A.2d 786, 787 (1985).

2002Where “an extrajudicial utterance is offered, not as an assertion to evidence the matter asserted, but without reference to the truth of the matter asserted, the hearsay rule does not apply.” State v. Dube, 130 N.H. 770, 772 (1988) (quotation omitted).

1990Where “an extrajudicial utterance is offered, not as an assertion to evidence the matter asserted, but without reference to the truth of the matter asserted, the hearsay rule does not apply.” State v. Dube, 130 N.H. 770, 772 , 547 A.2d 283, 284 (1988) (citing VI J.

2001He argues that the record contains inadmissible hearsay, to wit, Nurse Constantine’s note regarding the victim’s assertion. “[I]n order for a hearsay declaration which itself contains a hearsay statement, to be admissible to prove the truth of the included statement, both the statement and the included statement must meet the tests of an exception to the hearsay rule.” State v. Winders, 127 N.H. 471, 477 (1985) (quotation omitted).

1993It is for the trial court to determine whether testimony is admissible as an exception to the hearsay rule, and “we will not disturb its determination unless we find it to be clearly erroneous.” State v. Winders, 127 N.H. 471, 477 , 503 A.2d 798, 802 (1985).

1995It is the trial court’s duty “to determine whether testimony is admissible as an exception to the hearsay rule.” State v. Killam, 137 N.H. 155, 160 , 626 A.2d 401, 404 (1993).

1995It is the trial court’s duty “to determine whether testimony is admissible as an exception to the hearsay rule.” State v. Killam, 137 N.H. 155, 160 , 626 A.2d 401, 404 (1993).

1992See Dutton v. Evans, 400 U.S. 74, 89 (1970); see also United States v. Holland, 880 F.2d 1091, 1094 (9th Cir. 1991); cf. Chambers v. Mississippi, 410 U.S. 303 , 300-01 (1973) (spontaneity relevant to “trustworthiness” under the declaration against interest exception to the hearsay rule); Richards, 129 N.H. at 675 , 531 A.2d at 342 (same).

1992See Dutton v. Evans, 400 U.S. 74, 89 (1970); see also United States v. Holland, 880 F.2d 1091, 1094 (9th Cir. 1991); cf. Chambers v. Mississippi, 410 U.S. 303 , 300-01 (1973) (spontaneity relevant to “trustworthiness” under the declaration against interest exception to the hearsay rule); Richards, 129 N.H. at 675 , 531 A.2d at 342 (same).

1991In State v. Gilbert, 121 N.H. 305 , 429 A.2d 323 (1981), we held that “out-of-court statements by co-conspirators are admissible as exceptions to the hearsay rule ‘when [the statements are] made during the pendency of the criminal enterprise and in furtherance of the criminal object, as long as the existence of the conspiracy is sufficiently proved by independent evidence.’” Id. at 311 , 429 A.2d at 328 (quoting State v. Colby, 116 N.H. 790, 793-94 , 368 A.2d 587, 590 (1976)).

1991In State v. Gilbert, 121 N.H. 305 , 429 A.2d 323 (1981), we held that “out-of-court statements by co-conspirators are admissible as exceptions to the hearsay rule ‘when [the statements are] made during the pendency of the criminal enterprise and in furtherance of the criminal object, as long as the existence of the conspiracy is sufficiently proved by independent evidence.’” Id. at 311 , 429 A.2d at 328 (quoting State v. Colby, 116 N.H. 790, 793-94 , 368 A.2d 587, 590 (1976)).

1984The business records exception to the hearsay rule, codified at RSA 521:2, provides: “A record of an act, condition or event, shall, in so far as relevant, be competent evidence if the custodian or other qualified witness testifies to its identity and the mode of its preparation, and if it was made in the regular course of business, at or near the time of the act, condition or event, and if, in the opinion of the court, the sources of information, method and time of preparation were such as to justify its admission.” The rationale behind extending the business records exception to include medi

1984The business records exception to the hearsay rule, codified at RSA 521:2, provides: “A record of an act, condition or event, shall, in so far as relevant, be competent evidence if the custodian or other qualified witness testifies to its identity and the mode of its preparation, and if it was made in the regular course of business, at or near the time of the act, condition or event, and if, in the opinion of the court, the sources of information, method and time of preparation were such as to justify its admission.” The rationale behind extending the business records exception to include medi

1985Whether testimony is admissible as an exception to the hearsay rule is for the trial court to determine, see Bennett v. Bennett, 92 N.H. 379, 386 , 31 A.2d 374, 380 (1943), and we will not disturb such a determination unless we find it to be clearly erroneous.

1985Whether testimony is admissible as an exception to the hearsay rule is for the trial court to determine, see Bennett v. Bennett, 92 N.H. 379, 386 , 31 A.2d 374, 380 (1943), and we will not disturb such a determination unless we find it to be clearly erroneous.

1985An extrajudicial statement will not be excluded from evidence by the hearsay rule if the declarant is unavailable and there is “the circumstantial guarantee of trustworthiness . . . .” Caledonia, Inc. v. Trainor, 123 N.H. 116, 121-22 , 459 A.2d 613, 616 (1983); Roberts v. Claremont Power Co., 78 N.H. 491, 495 , 102 A. 537, 539 (1917); see N.H.

1985An extrajudicial statement will not be excluded from evidence by the hearsay rule if the declarant is unavailable and there is “the circumstantial guarantee of trustworthiness . . . .” Caledonia, Inc. v. Trainor, 123 N.H. 116, 121-22 , 459 A.2d 613, 616 (1983); Roberts v. Claremont Power Co., 78 N.H. 491, 495 , 102 A. 537, 539 (1917); see N.H.

1983Abbott v. Insurance Co., 89 N.H. 149, 152 , 195 A. 413, 415 (1937).

1983Abbott v. Insurance Co., 89 N.H. 149, 152 , 195 A. 413, 415 (1937).

1981See State v. Russell, 114 N.H. 224 -26, 317 A.2d 781, 782 (1974).

1974Bennett v. Bennett, 92 N.H. 379, 386 , 31 A.2d 374, 380 (1943); cf. State v. Russell, 114 N.H. 222, 224 , 317 A.2d 781, 782 (1974).

2016“This limitation prevents the State from using impeachment by prior inconsistent statement as a mere subterfuge to avoid the hearsay rule.” Id.

2016However, “[w]here the State has called a witness whose corroborating testimony is instrumental to constructing the State’s case, the State has the right to question the witness, and to attempt to impeach [the witness], about those aspects of [the witness’s] testimony that conflict with the State’s account of the same events.” Id. (quotation and brackets omitted).

2003The court determined that the statute admitting “official reports” of blood and breath testing “indicates legislative reliance upon the common-law official written statements exception to the hearsay rule,” under which “[ejvidentiary trustworthiness is secured by the probability that public officers will discharge their duty to make accurate records.” Id. at 394-95 .

1992We acknowledged, however, that “evidence admitted under a State-created exception to the hearsay rule may... infringe constitutional rights.” Id.

2016But see State v. Beede, 156 N.H. 102, 105 (2007) (holding that checks deposited into an account constituted verbal acts that were not barred by the hearsay rule).

2011On appeal, the defendant first argues that the trial court erred in allowing the State to introduce the victim’s videotaped interview with an investigator under the recorded recollection exception to the hearsay rule. ‘We review the trial court’s decisions on the admissibility of evidence under an unsustainable exercise of discretion standard.” State v. Beede, 156 N.H. 102, 105 (2007).

2000Cf. State v. Cook, 135 N.H. 655, 660 , 610 A.2d 800, 803 (1992) (recognizing “that evidence admitted under a state-created exception to the hearsay rule may nevertheless infringe constitutional rights”).

2000Cf. State v. Cook, 135 N.H. 655, 660 , 610 A.2d 800, 803 (1992) (recognizing “that evidence admitted under a state-created exception to the hearsay rule may nevertheless infringe constitutional rights”).

1993Id.

1992See State v. Richards, 129 N.H. 669, 674 , 531 A.2d 338, 341-42 (1987); State v. Mallar, 127 N.H. 816, 819 , 508 A.2d 1070, 1071 (1986).

1992In Idaho v. Wright, — U.S. —, 110 S. Ct. 3139 , the Supreme Court, under a confrontation clause analysis, held that evidence coming in under a hearsay exception must be trustworthy intrinsically, “not by reference to other evidence at trial.” Id. at 3150 .

1992In Idaho v. Wright, — U.S. —, 110 S. Ct. 3139 , the Supreme Court, under a confrontation clause analysis, held that evidence coming in under a hearsay exception must be trustworthy intrinsically, “not by reference to other evidence at trial.” Id. at 3150 .

1992See Dutton v. Evans, 400 U.S. 74, 89 (1970); see also United States v. Holland, 880 F.2d 1091, 1094 (9th Cir. 1991); cf. Chambers v. Mississippi, 410 U.S. 303 , 300-01 (1973) (spontaneity relevant to “trustworthiness” under the declaration against interest exception to the hearsay rule); Richards, 129 N.H. at 675 , 531 A.2d at 342 (same).

1972Ed. 2d at 231 , 91 S. Ct. at 223 , Harlan, J. stated: “A rule requiring production of available witnesses would significantly curtail development of the law of evidence to eliminate the necessity for production of declarants where production would be unduly inconvenient and of small utility to a defendant.” Significantly among the examples he cites is Kay v. United States, supra. In Dutton v. Evans, supra, the test advanced by the court is whether the evidence admitted under an exception to the hearsay rule bears such “indicia of reliability” as to provide a satisfactory basis for the trier of

1992The parties agree that “out-of-court statements by co-conspirators are admissible as exceptions to the hearsay rule when [the statements are] made during the pendency of the criminal enterprise and in furtherance of the criminal object, as long as the existence of the conspiracy is sufficiently proved by independent evidence.” State v. Gilbert, 121 N.H. 305, 311 , 429 A.2d 323, 328 (1981) (quotations omitted).

1992The parties agree that “out-of-court statements by co-conspirators are admissible as exceptions to the hearsay rule when [the statements are] made during the pendency of the criminal enterprise and in furtherance of the criminal object, as long as the existence of the conspiracy is sufficiently proved by independent evidence.” State v. Gilbert, 121 N.H. 305, 311 , 429 A.2d 323, 328 (1981) (quotations omitted).

1985An extrajudicial statement will not be excluded from evidence by the hearsay rule if the declarant is unavailable and there is “the circumstantial guarantee of trustworthiness . . . .” Caledonia, Inc. v. Trainor, 123 N.H. 116, 121-22 , 459 A.2d 613, 616 (1983); Roberts v. Claremont Power Co., 78 N.H. 491, 495 , 102 A. 537, 539 (1917); see N.H.

1985An extrajudicial statement will not be excluded from evidence by the hearsay rule if the declarant is unavailable and there is “the circumstantial guarantee of trustworthiness . . . .” Caledonia, Inc. v. Trainor, 123 N.H. 116, 121-22 , 459 A.2d 613, 616 (1983); Roberts v. Claremont Power Co., 78 N.H. 491, 495 , 102 A. 537, 539 (1917); see N.H.