1 New Subdivision; Disclosure of Exculpatory Evidence. Amend RSA 105 by inserting after section 13-c the following new subdivision:

Disclosure of Exculpatory Evidence

105:13-d Disclosure of Exculpatory Evidence.

I. In this subdivision:

(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.

(b) "Personnel file" includes all employment records and any related internal affairs investigations.

II. 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. Only those portions of the file which the prosecutor or court determines to be relevant in the case as exculpatory evidence shall be released to a defendant in accordance with all applicable rules regarding evidence in criminal cases. The remainder of the file shall be returned to the police department employing or that employed the officer. The remainder of the file shall be, unless otherwise provided by law, subject to RSA 91-A and any applicable exemptions, including the exemption for personnel information whose disclosure would constitute an invasion of privacy under RSA 91-A:5, IV.

III.(a) 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. Nothing in this section shall be construed as limiting the due process protections provided to police officers concerning placement on the exculpatory evidence schedule, including:

(1) The requirement that the head of the law enforcement agency provide notice to the officer concerning placement on the schedule;

(2) The requirement that the head of the law enforcement agency afford the officer the opportunity to present evidence which the officer believes demonstrates why placement on the schedule is not warranted;

(3) The requirement that placement on the schedule can only occur after a finding of sustained finding of misconduct by the head of the law enforcement agency after investigation; and

(4) The protocol for removal of an officer's name from the schedule where a sustained finding of misconduct has been overturned.

(b) Nothing in this section shall be construed as limiting a police officer's ability to file a declaratory judgment action under RSA 491:22 seeking a court order removing the officer's name from the exculpatory evidence schedule.

IV. 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.

V. The exculpatory evidence schedule maintained by the department of justice shall be a public record for purpose of RSA 91-A.

105:13-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.

2 Repeal. RSA 105:13-b, relative to confidentiality of police personnel files, is repealed.

3 Effective Date. This act shall take effect 60 days after its passage.

1 New Subdivision; Disclosure of Exculpatory Evidence. Amend RSA 105 by inserting after section 13-c the following new subdivision:

Disclosure of Exculpatory Evidence

105:13-d Disclosure of Exculpatory Evidence.

I. In this subdivision:

(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.

(b) "Personnel file" includes all employment records and any related internal affairs investigations.

II. 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. Only those portions of the file which the prosecutor or court determines to be relevant in the case as exculpatory evidence shall be released to a defendant in accordance with all applicable rules regarding evidence in criminal cases. The remainder of the file shall be returned to the police department employing or that employed the officer. The remainder of the file shall be, unless otherwise provided by law, subject to RSA 91-A and any applicable exemptions, including the exemption for personnel information whose disclosure would constitute an invasion of privacy under RSA 91-A:5, IV.

III.(a) 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. Nothing in this section shall be construed as limiting the due process protections provided to police officers concerning placement on the exculpatory evidence schedule, including:

(1) The requirement that the head of the law enforcement agency provide notice to the officer concerning placement on the schedule;

(2) The requirement that the head of the law enforcement agency afford the officer the opportunity to present evidence which the officer believes demonstrates why placement on the schedule is not warranted;

(3) The requirement that placement on the schedule can only occur after a finding of sustained finding of misconduct by the head of the law enforcement agency after investigation; and

(4) The protocol for removal of an officer's name from the schedule where a sustained finding of misconduct has been overturned.

(b) Nothing in this section shall be construed as limiting a police officer's ability to file a declaratory judgment action under RSA 491:22 seeking a court order removing the officer's name from the exculpatory evidence schedule.

IV. 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.

V. The exculpatory evidence schedule maintained by the department of justice shall be a public record for purpose of RSA 91-A.

105:13-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.

2 Repeal. RSA 105:13-b, relative to confidentiality of police personnel files, is repealed.

3 Effective Date. This act shall take effect 60 days after its passage.