Revision: May 14, 2016, midnight
\t \t\tSB 402 - AS AMENDED BY THE HOUSE
03/24/2016 1035s
11May2016... 1729h
2016 SESSION
\t16-2907
\t08/03
SENATE BILL\t402
AN ACT\trelative to procedures for determining and disclosing exculpatory evidence in a police officer's personnel file.
SPONSORS:\tSen. Carson, Dist 14; Rep. Heffron, Rock. 18
COMMITTEE:\tJudiciary
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AMENDED ANALYSIS
This bill requires a determination of whether information in a police officer's personnel file constitutes exculpatory evidence and allows a police officer who has information determined to be exculpatory evidence in his or her personnel file to have an opportunity to challenge the disciplinary finding. This bill also requires the attorney general to develop procedures for a police officer to have his or her name removed from a list of police officers believed to have exculpatory evidence in their personnel files.
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Explanation:\tMatter added to current law appears in bold italics.
\t\tMatter removed from current law appears [in brackets and struckthrough.]
\t\tMatter which is either (a) all new or (b) repealed and reenacted appears in regular type.
03/24/2016 1035s
11May2016... 1729h\t16-2907
\t08/03
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Sixteen
AN ACT\trelative to procedures for determining and disclosing exculpatory evidence in a police officer's personnel file.
Be it Enacted by the Senate and House of Representatives in General Court convened:
\t1 New Subdivision; Police Officers; Disclosure of Exculpatory Evidence; Termination Prohibited. Amend RSA 105 by inserting after section 13-c the following new subdivision:
Disclosure of Exculpatory Evidence
\t105:13-d Disclosure of Exculpatory Evidence.
\t\tI. In this subdivision:
\t\t\t(a) "Exculpatory evidence" means any information required to be disclosed to the defendant in a criminal case under the federal Constitution or the state constitution.
\t\t\t(b) "Personnel file" includes all employment records an any related internal affairs investigations.
\t\tII. The prosecutor shall have access to the complete personnel file of any police officer who may be a witness for either party in any criminal case for the purpose of determining the existence of potentially exculpatory evidence. If the prosecutor cannot determine whether such evidence is exculpatory, he or she shall petition the court for an in camera review of the evidence. No prosecutor who reviews a police officer's personnel file shall disclose any information obtained as a result of the review, except as required in this paragraph or to the extent necessary to comply with the federal Constitution or state constitution. The personnel file shall remain confidential unless otherwise provided by law.
\t\tIII. When the head of a law enforcement agency determines that a police officer's personnel file may contain potentially exculpatory evidence, he or she shall notify the police officer of that determination. The police officer shall have the opportunity to challenge the disciplinary finding or other administrative action resulting from the potentially exculpatory evidence through available contractual, administrative, and legal means. However, the pendency of such challenge shall not prevent the disclosure of the potentially exculpatory evidence in a criminal proceeding in which an officer is a potential witness.
\t\tIV. If a county prosecutor, outside of the requirements of a pending criminal case, disseminates or distributes to another person any document or list which contains names of police officers believed to have exculpatory evidence in their personnel files, the county attorney shall notify the attorney general of this fact within 5 business days of the dissemination or distribution. If the prosecutor distributes or disseminates such a list outside the requirements of a criminal case, the attorney general shall develop and implement procedures, which satisfy the due process requirements of the federal Constitution and state constitution, to allow a police officer to seek removal of his or her name from such document or list including but not limited to a declaratory judgment procedure under RSA 491:22. The attorney general shall implement such additional procedures no later than 180 days from the date of distribution by either the county attorney or the attorney general of the document or list.
\t\tV. The duty to disclose exculpatory evidence that should have been disclosed prior to trial shall be an ongoing duty that extends beyond a finding of guilt.
\t105:13-e Termination Prohibited. No police officer shall have his or her employment terminated based solely on a determination that the officer has potentially exculpatory evidence in his or her personnel file which may need to be disclosed to a criminal defendant. Nothing in this section shall prohibit the employing authority from terminating a police officer's employment based on conduct that is the subject of the exculpatory evidence.
\t2 Repeal. RSA 105:13-b, relative to confidentiality of police personnel files, is repealed.
\t3 Effective Date. This act shall take effect 60 days after its passage.