Revision: March 16, 2017, 3:25 p.m.
SB 249 - AS INTRODUCED
SENATE BILL 249
SPONSORS: Sen. Carson, Dist 14; Sen. Bradley, Dist 3
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 submit a statement to the prosecutorial body requesting the information in the file as exculpatory evidence.
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Explanation: Matter added to current law appears in bold italics.
Matter removed from current law appears [in brackets and struckthrough.]
Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Seventeen
Be it Enacted by the Senate and House of Representatives in General Court convened:
105:1-a Police Officers; Limitation on Termination. No police officer shall have his or her employment terminated based solely on a determination that the officer has information in his or her personnel file that is potentially exculpatory and may need to be disclosed to a criminal defendant. Nothing in this section shall prohibit the employing authority from terminating the employment of a police officer for the conduct that is the subject of the potentially exculpatory information.
105:13-d Disclosure of Potentially Exculpatory Information.
I. In this section:
(a) "Exculpatory evidence" means any information required to be disclosed to the defendant in a criminal case under the state or federal constitutions.
(b) "Laurie designation" means any communication, reference, or record kept by any law enforcement agency, county attorney, or the attorney general's office, maintained for the purpose of tracking, memorializing, or identifying a law enforcement officer whose personnel file contains information that may need to be disclosed by the prosecution pursuant to State v. Laurie, 139 N.H. 325 (1995).
II. Notwithstanding RSA 105:13-b, the attorney general, county attorney, or designee, shall have access to the personnel file of any police officer who may be a witness for either party in any criminal case, solely for the purpose of determining the existence of potentially exculpatory evidence. No attorney general, county attorney, or designee, who reviews a personnel file shall disclose any information obtained as a result of the review, except to the extent necessary to comply with the state or federal constitutions.
III. When the head of a law enforcement agency or designee determines that a police officer's personnel file contains potentially exculpatory evidence, such police officer shall be notified that the attorney general, county attorney, or designee shall be conducting a review of the file. Personnel files may be reviewed by the attorney general's office or the county attorney's office to review potential exculpatory evidence that directly relates to the Laurie designation only. No other information contained within the personnel file may be viewed under any circumstance.
IV. Prior to any determination that conduct shall be disclosed as potentially exculpatory evidence, the police officer shall have an opportunity to submit a statement in writing to the attorney general, county attorney, or designee, concerning whether the facts shall be disclosed to the defendant under the state or federal constitutions.
V. Pursuant to RSA 491:22, there shall be no Laurie designation on any police officer until all administrative remedies at the police administrative level have been exhausted. Such remedies include, but are not limited to, a completed internal investigation, the grievance procedure and hearings at the New Hampshire public employees labor relations board with a decision or an independent arbitrators decision. A police officer who has been found to have committed an act which could be required to be disclosed to the defense in a criminal case may bring a declaratory judgment action in the superior court to determine whether the act he or she was found to have committed constitutes potentially exculpatory evidence in a future case that is required to be disclosed to the defense. No such action shall be brought until the police officer has exhausted all administrative remedies provided for in statute, administrative rule, or in any employment contract. In ruling on the petition, the superior court shall accept as true, all facts found by the final fact finder provided for in statute, administrative rule, or employment contract, unless against the manifest weight of the evidence. The superior court determination shall be limited to determining whether a future case may exist where the facts rise to the level of potentially exculpatory evidence under the state and federal constitutions. If the court finds that the facts could constitute exculpatory evidence in a future case, the prosecutor shall remain responsible for determining when potentially exculpatory evidence shall be disclosed to the defense under the state and federal constitutions. A superior court justice or the New Hampshire attorney general's office may remove a Laurie designation and a county attorney and police chief shall comply with such order.