Prosecutors Must Review Police Personnel Files for Exculpatory Evidence

By Susan Slack, Esq.

Information in police personnel or internal investigation files is sometimes disclosed for use as evidence in criminal cases. This practice raises numerous questions about the procedures for determining what information may be disclosed. Understandably, it is a sensitive issue for most municipal police officers and prosecutors. The law on this issue has been refined this year by a ruling from the New Hampshire Supreme Court that will trigger new procedures for handling such information by police departments and prosecutors.

Q. Doesn’t the law protect the confidentiality of police personnel files?
A. Yes. RSA 105:13-b (Confidentiality of Personnel Files) prohibits opening the personnel file of a police officer who is a witness or is the prosecutor in a criminal case for the purposes of that case unless the sitting judge rules that probable cause exists to believe that the file contains evidence relevant to that criminal case. If probable cause exists, the judge must examine the file in camera (in private) to determine whether evidence relevant to the criminal case is contained in the file. If so, only the relevant evidence in the file may be disclosed.

Q. What is “relevant" evidence?
A. According to Black’s Law Dictionary, it is evidence that tends to prove or disprove an alleged fact or shed light upon a contested matter. It is information or evidence that tends to make the existence of a material fact more or less probable.

Q. What right does a defendant in a criminal case have to information in a police officer’s personnel and internal investigation files?
A. The United States Supreme Court and most state courts, including the New Hampshire Supreme Court, have held that criminal defendants have a constitutional right to all exculpatory evidence known to the prosecution. In fact, these cases have held that it is a prosecutor’s duty to turn over exculpatory evidence to the defense, including such evidence in a police officer’s personnel file. In New Hampshire, such information is often referred to as Laurie materials, named for a 1995 Supreme Court case that overturned a first-degree murder conviction because exculpatory information in an investigating officer’s personnel file was not given to the defense. See State v. Laurie, 139 N.H. 325 (1995).

Q. What is “exculpatory" evidence?
A. According to Black’s Law Dictionary, “exculpatory" evidence tends to justify, excuse or clear the defendant from alleged guilt. It can be thought of as the opposite of incriminating evidence, which tends to establish the guilt of the accused. Exculpatory evidence may include information pertaining to the police officer’s credibility or bias. It may be used by the defense to impeach a police officer who is a witness in the case. By the way, a witness who has been impeached at trial may be rehabilitated with evidence supporting his or her credibility.

Q. How did prosecutors and police departments respond to Laurie?
A. In Laurie, the Court held that the defendant was denied due process of law when the state “knowingly withheld" exculpatory evidence from the file of an investigating detective who testified at trial. According to the Court, the evidence from the detective’s file could have been used by the defense to impeach his character and credibility at trial. Not long after Laurie was decided, the Court ruled that the failure of the police to disclose and turn over exculpatory evidence to the defendant is imputed to the prosecutor. State v. Lucius, 140 N.H. 60, 63 (1995).

In 1996, the Attorney General’s Office sent a Law Enforcement Memorandum to all police agencies, county attorneys and prosecutors that established as a sample policy a procedure whereby prosecutors should inquire of the arresting police agency whether Laurie material exists in personnel, internal investigation or disciplinary files of any officer identified as prosecution witness. Under the policy, if a prosecutor has probable cause to believe that impeachment or exculpatory material exists in the police officer’s file, the prosecutor should file a motion requesting court to order the police department to submit the file to the judge for in camera review. Likewise, if the prosecutor receives a defense request for disclosure of information in a police officer’s file and determines the defense has demonstrated probable cause that the file contains relevant evidence, the prosecutor must ask the court to order the police department to submit the file for in camera review.

Again in 2004, the Attorney General’s Office circulated a Law Enforcement Memorandum regarding Laurie materials in police personnel files. Its purpose was to bring consistency to the determination of what information in the file falls under the requirements of Laurie. However, the essential procedure remained: the prosecutor would ask the court to order the police department to submit the file for in camera review by the judge.

Q. Are there circumstances under which a police officer’s personnel file may be reviewed by someone other than a judge in private chambers?
A. Yes. In a case decided this year, the New Hampshire Supreme Court held that the prosecutor must review the police officer’s personnel file when defendants in criminal cases seek exculpatory information from them. Petition of the State of New Hampshire (State v. Theodosopoulos), 153 N.H. 318 (2006). The case involved an off-duty Hooksett police officer who was involved in a motor vehicle accident. The other driver was charged with failure to yield. The defense sought exculpatory information in the police officer’s file, and the lower court ordered the police department to turn the file over to the prosecutor for review. The state appealed that order to the Supreme Court, arguing that RSA 105:13-b requires review to be conducted only by the sitting judge in the case, not by the prosecutor. However, the Court ruled that RSA 105:13-b does not come into play when the information sought from the police officer’s personnel file is exculpatory evidence (evidence that may clear the defendant of guilt). Since the defendant has a constitutional due process right to such information, the Court reasoned, the requirement of RSA 105:13-b that the sitting judge review the file in camera does not apply.

Q. Is RSA 105:13-b meaningless after the decision in Petition of the State of New Hampshire (State v. Theodosopoulos)?
A. No. According to the Court, the statute’s requirement that police personnel files be reviewed in camera by the sitting judge applies only when the defense seeks other “relevant" evidence beyond the “exculpatory" evidence that prosecutors have a constitutional duty to disclose to the defense. The Court noted it early held in State v. Amirault, 149 N. 541 (2003), that when the defense requests further discovery from the police personnel file or investigative file, it must establish a reasonable probability that the requested files are relevant to the defense and this triggers the trial court’s obligation to review the files in camera.