Three former New Hampshire State Troopers may be able to remove their names from a publicly available list of law enforcement officers with possible credibility issues, in part because of how long ago their alleged misconduct took place, according to the New Hampshire Supreme Court.
In a 3-1 opinion released this week, the justices overruled a lower court decision that dismissed a suit filed by the three unnamed troopers. Those officers are currently included on the state’s Exculpatory Evidence Schedule, better known as the “Laurie List,” though their names are redacted due to the pending litigation.
Approximately 20 years ago, the officers were employed as patrol troopers, and were required to conduct a minimum number of traffic stops per shift.
“To comply with the mandated number of traffic stops, the plaintiffs inflated their enforcement action on the activity logs,” the justices wrote.
Because the alleged misconduct took place two decades ago, the officers claimed their names should not be included on the list, which state courts have previously acknowledged carries a “stigma.”
The New Hampshire Supreme Court’s majority agreed with the officers that the amount of time that has passed should be factored into the disclosure of their names.
Justice Patrick Donovan wrote in the 12-page opinion that “considerations made to determine the admissibility of evidence, such as the age of the conduct and its materiality to an officer’s general credibility, should factor into the determination of whether information in an officer’s personnel file warrants his or her inclusion on the EES.”
In a dissent, Chief Justice Gordon MacDonald disagreed, noting that there is no “expiration date” for potentially exculpatory materials to be disclosed.
Under U.S. Supreme Court precedent, prosecutors are required to turn over evidence during criminal trials that is exculpatory, or possibly favorable to a defendant. For years, lists of officers with such misconduct on their record were maintained by county attorneys in New Hampshire. In 2017, the New Hampshire Attorney General’s office took over administration of the list. Following a landmark state Supreme Court ruling that the document could be made public, and subsequent legislation passed by New Hampshire lawmakers, a partial list was released in late 2021.
Officers included on the list prior to its release were notified, and given the opportunity to file an appeal, allowing these three officers accused of inflating their traffic stop figures to file suit. They claimed that there is no justifiable scenario where their alleged misconduct could be considered exculpatory in any future legal cases.
In addition to Donavan, Justices Melissa Countway and James Bassett agreed. “If there is no reasonably foreseeable case in which ‘potentially exculpatory evidence’ relating to an officer’s conduct would be admissible, due to the passage of a significant length of time or some other factor weighing on the conduct’s relevance, an officer’s inclusion on the EES would be inappropriate,” their ruling reads.
The case will now be sent back to a lower court judge, who will need to determine if the officers’ conduct from two decades ago has the potential to be exculpatory in a future case.
MacDonald, who previously served as New Hampshire’s Attorney General — the office that oversees the maintenance of the Laurie List — wrote in his dissent that he was “unaware of any legal basis to impose an expiration date on the potentially exculpatory fact that, for instance, an officer lied.”
MacDonald wrote that having a lower court judge rely on hypothetical scenarios to determine if conduct may become potentially exculpatory in a case in the future will “prove to be unworkable.”
Prosecutors are still required to turn over any exculpatory evidence in a criminal case, even if an officer’s name is not included in the Laurie List. But having no public record of an officer’s previous misconduct could make it harder for those prosecutors to know what may exist in an officer’s personnel file.
The ACLU of New Hampshire, which wasn’t involved in this case but represented a group of media companies in a 2018 case that helped lead to the public release of the Laurie List, declined to comment on the latest ruling.
The New Hampshire Attorney General’s office, which was named as the defendant in the case and argued that the three officers should be kept on the list, said in a statement that it had received the court’s opinion and “will now carefully analyze it, contemplate potential next steps, and respond as appropriate. At this time, we do not have any additional comments or insights to share.”
The most recent copy of the Laurie List, released in July, contains the names of 270 officers, with 59 officers’ names currently redacted because they are challenging their inclusion.
Along with the name of the officer, the List discloses the date of the alleged misconduct, the officer’s department, and often just a single word summarizing the category of their infraction, such as “truthfulness,” “excessive force,” or “falsifying records.”
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