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Rules of Evidence

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8186

Rule 100. Adoption and Effective Date; Effect Upon Common Law

Pursuant to Part II, Article 73-A of the New Hampshire Constitution the Supreme Court unanimously adopts these rules of evidence. These rules shall govern all cases the trial of which commences on or after July 1, 1985, and shall be effective to the extent they are not inconsistent with statutory law in effect on that date, provided, that upon any later legislative repeal of such inconsistent statutes the appropriate rules shall then become effective. To the extent these rules alter or conflict with the common law, the rules shall govern.

 

2016 NHRE Update Committee Note

No change was made to New Hampshire Rule of Evidence 100 because the rule is a New Hampshire specific rule on adoption of the New Hampshire rules and is still germane.

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Rule 101. Scope; Definitions

(a) Scope. These rules apply to proceedings in the State of New Hampshire courts. The specific courts and proceedings to which the rules apply, along with exceptions are set out in Rule 1101.

 

(b) Definitions. In these rules:

(1) “civil case” means a civil action or proceeding;

(2) “criminal case” includes a criminal proceeding;

(3) “public office” includes a public agency;

(4) “record” includes a memorandum, report or data compilation;

(5) a “rule prescribed by the Supreme Court” means a rule adopted by the New Hampshire Supreme Court under constitutional authority;

(6) a reference to any kind of written material or any other medium includes electronically stored information;

(7) “Supreme Court” means the New Hampshire Supreme Court.

2016 NHRE Update Committee Note

The amendment made by the supreme court order dated April 20, 2017, effective July 1, 2017, made stylistic changes to (a) and added a section (b) to the rule to mirror Federal Rule of Evidence 101. Federal Rule of Evidence 101(b) does not include a subsection (7).

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Rule 102. Purpose and Construction


These rules should be construed so as to administer every proceeding fairly, eliminate unjustifiable expense and delay, and promote the development of evidence law, to the end of ascertaining the truth and securing a just determination. While decisions of federal courts involving the Federal Rules of Evidence may be helpful in analyzing problems and issues that arise under these rules, the New Hampshire Supreme Court shall be the final interpreter of these rules.

 

2016 NHRE Update Committee Note

The amendment made by supreme court order dated April 20, 2017, effective July 1, 2017, made stylistic changes to the rule.

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Rule 103. Rulings On Evidence

(a)  Preserving a Claim of Error.  A party may claim error in a ruling to admit or exclude evidence only if the error affects a substantial right of the party, and:

(1) if the ruling admits evidence, a party, on the record:

(A) timely objects or moves to strike; and

(B) states the specific ground, unless it was apparent from the context; or

(2) if the ruling excludes evidence, a party informs the court of the substance of the evidence and the basis for its admissibility by offer of proof, unless these matters were apparent from the context.

(b)  Not Needing to Renew an Objection or Offer of Proof.  Once the court rules definitively on the record - either before or at trial - a party need not renew an objection or offer of proof to preserve a claim of error for appeal.

(c) Court’s Statement About the Ruling; Directing an Offer of Proof. The court may make any statement about the character or form of the evidence, the objection made, and the ruling. The court may direct that an offer of proof be made in question-and-answer form.

(d) Preventing the Jury from Hearing Inadmissible Evidence. To the extent practicable, the court must conduct a jury trial so that inadmissible evidence is not suggested to the jury by any means.

(e) Taking Notice of Plain Error. A court may take notice of a plain error affecting a substantial right, even if the claim of error was not properly preserved.

 

2016 NHRE Update Committee Note

The amendment made by supreme court order dated April 20, 2017, effective July 1, 2017, made stylistic and substantive changes to the rule.

The language of New Hampshire Rule of Evidence 103(a)(2), as amended in 2016, differs from the language of Federal Rule of Evidence 103(a)(2). The language of the federal rule preserves for appellate review those rulings that were apparent from the context even if the specific grounds for the objection are not contained in the record. This is a departure from New Hampshire law. In New Hampshire, as is expressed in State v. Noucas, 165 N.H. 146, 152 (2013), preservation of issues for appellate review requires trial counsel to articulate specific grounds for a trial objection.

The language of New Hampshire Rule of Evidence 103(b) is new and mirrors the language of Federal Rule of Evidence 103(b). Although the New Hampshire Rule of Evidence Committee and the Advisory Committee on Rules recognize that the language is new, they do not believe that this will constitute a substantive change in practice. Under the prior rule, when evidentiary issues are worked out in motions in limine, or when a line of questioning is objected to, judges will give continuing objections, without the need to renew each time, because repeated objections are invasive and disruptive.

For additional guidance regarding the substantive changes to the rule see the notes following Federal Rules of Evidence 103 (Notes of Advisory Committee on 2000 amendments).

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Rule 104. Preliminary Questions

(a) In General.

The court must decide any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible. In so deciding, the court is not bound by evidence rules, except those on privilege.

(b) Relevance That Depends on a Fact. When the relevance of evidence depends on whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist. If such proof is presented, and the court finds that the evidence is otherwise admissible, the court shall admit the evidence. The court may admit the proposed evidence on the condition that the proof be introduced later.

(c) Conducting a Hearing So That the Jury Cannot Hear It. The court must conduct any hearing on a preliminary question so that the jury cannot hear it if:

(1) the hearing involves the admissibility of a confession;

(2) a defendant in a criminal case is a witness and so requests; or

(3) justice so requires.

(d) Cross-Examining a Defendant in a Criminal Case. By testifying on a preliminary question, a defendant in a criminal case does not become subject to cross-examination on other issues in the case.

(e) Evidence Relevant to Weight and Credibility. This rule does not limit a party’s right to introduce before the jury evidence that is relevant to the weight or credibility of other evidence.

 

2016 NHRE Update Committee Note

The amendments made by supreme court order dated April 20, 2017, effective July 1, 2017, made stylistic and substantive changes to the rule.

The language of the amended rule mirrors Federal Rule of Evidence 104, except that the last two sentences of New Hampshire Rule of Evidence 104(b) are not included in the Federal Rule. The Committee believes that the addition of the last two sentences codifies existing New Hampshire law and makes it clear that a judge cannot decline to admit evidence which is otherwise admissible if evidence is presented that is sufficient to permit the factfinder to find that the condition has been satisfied.

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Rule 105. Limiting Evidence That Is Not Admissible Against Other Parties or for Other Purposes


If the court admits evidence that is admissible against a party or for a purpose - but not against another party or for another purpose - the court, on timely request, must restrict the evidence to its proper scope and instruct the jury accordingly.

 

2016 NHRE Update Committee Note

 

The amendment made by supreme court order dated April 20, 2017, effective July 1, 2017, made stylistic changes to the rule.

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Rule 106. Remainder of or Related Writings or Recorded Statements

(a) If a party introduces all or part of a writing or recorded statement, an adverse party may require the introduction, at the time, of any other part - or any other writing or recorded statement - that in fairness ought to be considered at the same time.

(b) A party has a right to introduce the remainder of an unrecorded statement or conversation that his or her opponent introduced so far as it relates:

(1) to the same subject matter; and

(2) tends to explain or shed light on the meaning of the part already received.

2016 NHRE Update Committee Note

The amendment made by supreme court order dated April 20, 2017, effective July 1, 2017, made stylistic and substantive changes to the rule.

The amendment designated the first paragraph (a) and added subdivision (b). The changes to (a) are stylistic and mirror the federal rule. The addition of (b), not included in Federal Rule of Evidence 106, codifies New Hampshire case law as set forth in State v. Lopez, 156 N.H. 416, 421 (2007).

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Rule 201. Judicial Notice

 (a) Kinds of facts. A court may take judicial notice of a fact. A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.

    (b) Kinds of law. A court may take judicial notice of law. Law includes (1) the decisional, constitutional, and public statutory law, (2) rules of court, (3) regulations of governmental agencies, and (4) ordinances of municipalities and other governmental subdivisions of the United States or of any state, territory or other jurisdiction of the United States.

    (c) When discretionary. A court may take judicial notice, whether requested or not.

    (d) When mandatory. A court shall take judicial notice if requested by a party and supplied with the necessary information.

    (e) Opportunity to be heard. A party is entitled upon timely request to an opportunity to be heard as to the propriety of taking judicial notice and the tenor of the matter noticed. In the absence of prior notification, the request may be made after judicial notice has been taken.

    (f) Time of taking notice. Judicial notice may be taken at any stage of the proceeding.

    (g) Instructing jury. In a civil action or proceeding, the court shall instruct the jury to accept as conclusive any fact judicially noticed. In a criminal case, the court shall instruct the jury that it may, but is not required to, accept as conclusive any fact judicially noticed.

 

2016 NHRE Update Committee Note

This rule was not amended by supreme court order dated April 20, 2017, effective July 1, 2017, to mirror the federal rule.

Subsections (a) and (b) of the New Hampshire Rule are structured differently from the Federal Rule. The Federal Advisory Committee placed notice of the law in the rules of procedure due to their “assumption that the manner in which law is fed into the judicial process is never a proper concern of the rules of evidence but rather the rules of procedure.” See Note on Judicial Notice of Law following Federal Rule of Evidence 201. The structure of New Hampshire Rule of Evidence 201 honors the contrary thesis. When a rule of law is a factor in issue in the litigation, it should be fed into the judicial process in the same manner - and subject to the same safeguards - as are facts generally. In practice, the federal courts also rely on judicial notice to feed law into the judicial process, but without the benefit of the rule. New Hampshire Rule 201 legitimizes this practice.

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Rule 301. Presumptions


In all actions and proceedings, unless the constitution, a statute, case law, or these rules provide otherwise, the party against whom a presumption is directed has the burden of producing evidence to rebut the presumption. But this rule does not shift the burden of persuasion, which remains on the party who had it originally.

2016 NHRE Update Committee Note

The amendment made by supreme court order dated April 20, 2017, effective July 1, 2017, made stylistic changes to the rule.

The New Hampshire rule continues to depart from the federal rule. Federal Rule of Evidence 301 applies only to civil proceedings. New Hampshire Rule of Evidence 301, in both its prior and current forms, applies to both civil and criminal proceedings.

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Rule 401. Test for "Relevant Evidence"

Evidence is relevant if:

(a) it has any tendency to make a fact more or less probable than it would be without the evidence; and

(b) the fact is of consequence in determining the action.

2016 NHRE Update Committee Note

The amendment made by supreme court order dated April 20, 2017, effective July 1, 2017, made stylistic changes to the rule.

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Rule 402. General Admissibility of Relevant Evidence

Relevant evidence is admissible unless any of the following provides otherwise:

the United States or New Hampshire Constitution;
a statute;
these rules; or
other rules prescribed by the Supreme Court.
Irrelevant evidence is not admissible.

2016 NHRE Update Committee Note

The amendment made by supreme court order dated April 20, 2017, effective July 1, 2017, made stylistic changes to the rule.

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Rule 403. Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons

The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.

 

2016 NHRE Update Committee Note

The amendment made by supreme court order dated April 20, 2017, effective July 1, 2017, made stylistic changes to the rule.

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Rule 404. Character Evidence Not Admissible To Prove Conduct; Exceptions; Other Crimes

 (a) Character Evidence Generally. - Evidence of a person's character or a trait of character is not admissible for the purpose of proving that the person acted in conformity therewith on a particular occasion, except:

        (1) Character of Accused. - Evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same;

        (2) Character of Victim. - Evidence of a pertinent trait of character of the victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the first aggressor;

        (3) Character of Witness. - Evidence of the character of a witness, as provided in rules 607, 608, and 609.

    (b) Other Crimes, Wrongs, or Acts.

(1) Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that the person acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

(2) Evidence of other crimes, wrongs or acts is admissible under this subsection only if:

(A) it is relevant for a purpose other than proving the person's character or disposition;

(B) there is clear proof, meaning that there is sufficient evidence to support a finding by the fact-finder that the other crimes, wrongs or acts occurred and that the person committed them; and

(C) the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice.

 

2016 NHRE Update Committee Note

No change was made to New Hampshire Rule of Evidence 404 by supreme court order dated April 20, 2017, effective July 1, 2017. The current New Hampshire rule mirrors the language of Federal Rule 404 as it existed in 1985. Federal Rule of Evidence 404 has been amended four times since New Hampshire adopted the rule. The 1987 amendment to Federal Rule of Evidence 404 was technical, but the three subsequent amendments were substantive. The 1991 amendment added a pretrial notice requirement to 404(b). The 2000 amendment provides that when the accused attacks the character of an alleged victim the door is open to an attack on the same character trait of the accused. The 2006 amendment was added to clarify that in a civil case evidence of a person’s character is never admissible to prove that the person acted in conformity with the character trait. Because New Hampshire has a body of case law that has clarified and limited this rule as applied in New Hampshire, the changes made to Federal Rule 404 have not been made to New Hampshire Rule of Evidence 404.

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Rule 405. Methods of Proving Character

(a) By Reputation or Opinion. When evidence of a person’s character or character trait is admissible, it may be proved by testimony about the person’s reputation or by testimony in the form of an opinion. On cross-examination of the character witness, the court may allow an inquiry into relevant specific instances of the person’s conduct.

(b) By Specific Instances of Conduct. When a person’s character or character trait is an essential element of a charge, claim, or defense, the character or trait may also be proved by relevant specific instances of the person’s conduct.

 

2016 NHRE Update Committee Note

The amendment made by supreme court order dated April 20, 2017, effective July 1, 2017, made stylistic changes to the rule.

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Rule 406. Habit; Routine Practice


Evidence of a person’s habit or an organization’s routine practice may be admitted to prove that on a particular occasion the person or organization acted in accordance with the habit or routine practice. The court may admit this evidence regardless of whether it is corroborated or whether there was an eyewitness.

2016 NHRE Update Committee Note

The amendment made by supreme court order dated April 20, 2017, effective July 1, 2017, made stylistic changes to the rule.

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Rule 407. Subsequent Remedial Measures

When measures are taken that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove:

negligence;
culpable conduct;
a defect in a product or its design; or
a need for a warning or instruction.
But the court may admit this evidence for another purpose, such as impeachment or - if disputed - proving ownership, control, or the feasibility of precautionary measures.

 

2016 NHRE Update Committee Note

The amendment made by supreme court order dated April 20, 2017, effective July 1, 2017, made stylistic and substantive changes to the rule.

The amendment provides that the evidence of subsequent remedial measures may not be used to prove, “a defect in a product or its design,” or that a warning or instruction should have accompanied a product. The language of the amended rule mirrors Federal Rule of Evidence 407. For additional guidance regarding the substantive changes to the rule see the notes following Federal Rules of Evidence 407 (Notes of Advisory Committee on 1997 amendments).

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Rule 408. Compromise and Offers To Compromise

In a tort case, evidence of (1) a settlement with or the giving of a release or covenant not to sue to or, (2) furnishing or offering or promising to furnish or accepting or offering or promising to accept, a valuable consideration in compromising a disputed claim with one or more persons liable in tort for the same injury to person or property or for the same wrongful death shall not be introduced in evidence in a subsequent trial of an action against any other tortfeasor to recover damages for the injury or wrongful death. Upon the return of a verdict, the court shall inquire of the attorneys for the parties the amount of the consideration paid for any settlement, release or covenant not to sue, and shall reduce the verdict by that amount.

In any other case, evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount.

Evidence of conduct or statements made in compromise negotiations is likewise not admissible. However, this rule does not require the exclusion of any evidence otherwise admissible merely because it is presented in the course of compromise negotiations.

This rule does not require exclusion when the evidence is offered for a purpose other than the proof of liability for or invalidity of the claim or its amount, such as proving bias or prejudice of a witness, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.


2016 NHRE Update Committee Note

No change was made to New Hampshire Rule of Evidence 408 by supreme court order dated April 20, 2017, effective July 1, 2017.

Federal Rule 408 is inconsistent with New Hampshire Superior Court Rule 32(d), would change substantive NH law, and would limit the openness of settlement discussions in some civil settings because the federal rule allows for the subsequent use of some civil settlement discussions in criminal cases. If New Hampshire were to adopt Federal Rule 408, a statement in a Securities and Exchange Commission civil securities fraud settlement negotiation would be admissible in a later prosecution for mail fraud. Statements in any mediation or settlement negotiation in a municipal or state regulatory proceeding would be admissible in a later criminal case. Categorical rules of exclusion operate like privileges to the extent that they exclude relevant, probative and usually truthful and reliable evidence. The reason for this interference with the truth-finding process is that there are other interests at stake-such as, in this instance, the interest in giving parties breathing room to have the frank discussions that are often necessary to compromise and settle cases.

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Rule 409. Offers to Pay Medical and Similar Expenses

Evidence of furnishing, promising to pay, or offering to pay medical, hospital, or similar expenses resulting from an injury is not admissible to prove liability for the injury.

 

2016 NHRE Update Committee Note

The amendments made by supreme court order dated April 20, 2017, effective July 1, 2017, made stylistic and substantive changes to the rule.

The amendments deleted the last sentence of the rule. The sentence read, “Any such payments shall, however, constitute a credit against and be deducted from any final settlement made or judgment rendered with respect to such injury which does not expressly provide to the contrary.” The sentence was not included in the original federal rule, but was included in the New Hampshire Rule adopted in 1985. It was deleted in 2016 because it deals with substantive law, not evidence.

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Rule 410. Pleas, Plea Discussions, and Related Statements

(a) Prohibited Uses. In a civil or criminal case, evidence of the following is not admissible against the defendant who made the plea or participated in the plea discussions:

(1) a guilty plea that was later withdrawn;

        (2) a nolo contendere plea;

        (3) a statement made during a proceeding on either of those pleas in any state court proceeding or under Federal Rule of Criminal Procedure 11; or

        (4) a statement made during plea discussions with the representative of the State if the discussions did not result in a guilty plea or they resulted in a later-withdrawn guilty plea.

 
(b) Exceptions. The court may admit a statement described in Rule 410(a)(3) or (4):

(1) in any proceeding in which another statement made during the same plea or plea discussions has been introduced, if in fairness the statements ought to be considered together; or

(2) in a criminal proceeding for perjury or false statement, if the defendant made the statement under oath, on the record, and with counsel present.

 

2016 NHRE Update Committee Note

The amendment made by supreme court order dated April 20, 2017, effective July 1, 2017, made stylistic changes to the rule.

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Rule 411. Liability Insurance

Evidence that a person was or was not insured against liability is not admissible to prove whether the person acted negligently or otherwise wrongfully. But the court may admit this evidence for another purpose, such as proving a witness’s bias or prejudice or proving agency, ownership, or control.

2016 NHRE Update Committee Note

The amendment made by supreme court order dated April 20, 2017, effective July 1, 2017, made stylistic and substantive changes to the rule.

The amendments deleted the phrase, “but only when the proof thereof cannot be reasonably obtained by other means and the trial court determines that its probative value substantially outweighs the danger of unfair prejudice.” This phrase was not included in the original Federal Rules of Evidence, but the phrase was included in the New Hampshire Rules of Evidence adopted in 1985 because at that time the mention of insurance was taboo. Today, there is a jury instruction regarding insurance, and the Committee believes that the mention of insurance is not as big a concern as it used to be.

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Rule 412. Evidence of Prior Sexual Activity

(a) Except as constitutionally required, and then only in the manner provided in (b), below, evidence of prior consensual sexual activity between the victim and any person other than the defendant shall not be admitted into evidence in any prosecution or in any pretrial discovery proceeding undertaken in anticipation of a prosecution under the laws of this state.

(b) Upon motion by the defense filed in accordance with the then applicable Rules of Court, the defense shall be given an opportunity to demonstrate, during a hearing in chambers, in the manner provided for in Rule 104:

(1) Evidence Sought During Pretrial Discovery Stage: that there is a reasonable possibility that the information sought in a pretrial discovery proceeding which would otherwise be excluded under subsection (a), above, will produce the type of evidence that due process will require to be admitted at trial;

        (2) Use of Evidence At Trial: that due process requires the admission of the evidence proffered by the defense which would be otherwise excluded under subsection (a), above, and the probative value in the context of the case in issue outweighs its prejudicial effect on the victim.
2016 NHRE Update Committee Note

No change was made to New Hampshire Rule of Evidence 412 by supreme court order dated April 20, 2017, effective July 1, 2017, because the New Hampshire Rule is specific to New Hampshire and was originally drafted to comply with RSA 632-A:6 as interpreted by case law. The federal rule was not recommended by the Update Committee for the reasons stated in the original Reporter’s Notes.

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Rule 501. Privileges Recognized Only as Provided

   (a) Except as otherwise provided by constitution or statute or by these or other rules promulgated by the Supreme Court of this State, no person has a privilege to:

        (1) Refuse to be a witness;

        (2) Refuse to disclose any matter;

        (3) Refuse to produce any object or writing, or

        (4) Prevent another from being a witness or disclosing any matter or producing any object or writing.

    (b) Nothing herein shall be construed to confer a privilege otherwise limited by statute.

 

2016 NHRE Update Committee Note

No change was made to New Hampshire Rule of Evidence 501 by supreme court order dated April 20, 2017, effective July 1, 2017. None of the privilege rules were adopted from the Federal Rules of Evidence so they were not part of the Update Committee’s targeted review. Some of the rules of privilege are adopted from the Uniform Rules of Evidence and some of them summarize New Hampshire statutes on privilege that were in existence at the time the New Hampshire Rules of Evidence were adopted. The Uniform Rules of Evidence were modified in 2005. The Update Committee did not make recommendations to amend these rules based upon Uniform Rule modifications.

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Rule 502. Lawyer-Client Privilege

   (a) Except as otherwise provided by constitution or statute or by these or other rules promulgated by the Supreme Court of this State, no person has a privilege to:

        (1) Refuse to be a witness;

        (2) Refuse to disclose any matter;

        (3) Refuse to produce any object or writing, or(a) Definitions. As used in this rule:

        (1) A "client" is a person, public officer, or corporation, association, or other organization or entity, either public or private, who is rendered professional legal services by a lawyer, or who consults a lawyer with a view to obtaining professional legal services from him.

        (2) A "representative of a client" is one having authority to obtain professional legal services, or to act on advice rendered pursuant thereto, on behalf of the client.

        (3) A "lawyer" is a person authorized, or reasonably believed by the client to be authorized, to engage in the practice of law in any state or nation.

        (4) A "representative of the lawyer" is one employed by the lawyer to assist the lawyer in the rendition of professional legal services.

        (5) A communication is "confidential" if not intended to be disclosed to third persons other than those to whom disclosure is made in furtherance of the rendition of professional legal services to the client or those reasonably necessary for the transmission of the communication.

    (b) General Rule of Privilege. A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client (1) between the client or his or her representative and the client's lawyer or the lawyer's representative, (2) between the client's lawyer and the lawyer's representative, (3) by the client or the client's representative or the client's lawyer or a representative of the lawyer to a lawyer or a representative of a lawyer representing another party in a pending action and concerning a matter of common interest therein, (4) between representatives of the client or between the client and a representative of the client, or (5) among lawyers and their representatives representing the same client.

    (c) Who May Claim the Privilege. The privilege may be claimed by the client, the client's guardian or conservator, the personal representative of a deceased client, or the successor, trustee, or similar representative of a corporation, association, or other organization, whether or not in existence. The person who was the lawyer or the lawyer's representative at the time of the communication is presumed to have authority to claim the privilege but only on behalf of the client.

    (d) Exceptions. There is no privilege under this rule:

        (1) Furtherance of Crime or Fraud. If the services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit in the future what the client knew or reasonably should have known to be a crime or fraud;

        (2) Claimants Through Same Deceased Client. As to a communication relevant to an issue between parties who claim through the same deceased client, regardless of whether the claims are by testate or intestate succession or by inter vivos transaction;

        (3) Breach of Duty by a Lawyer or Client. As to a communication relevant to an issue of breach of duty by the lawyer to his client or by the client to his lawyer;

        (4) Document Attested by a Lawyer. As to a communication relevant to an issue concerning an attested document to which the lawyer is an attesting witness;

        (5) Joint Clients. As to a communication relevant to a matter of common interest between or among two or more clients if the communication was made by any of them to a lawyer retained or consulted in common, when offered in an action between or among any of the clients.
2016 NHRE Update Committee Note

No change was made to New Hampshire Rule of Evidence 502 by supreme court order dated April 20, 2017, effective July 1, 2017. None of the privilege rules were adopted from the Federal Rules of Evidence so they were not part of the Update Committee’s targeted review. Some of the rules of privilege are adopted from the Uniform Rules of Evidence and some of them summarize New Hampshire statutes on privilege that were in existence at the time the New Hampshire Rules of Evidence were adopted. The Uniform Rules of Evidence were modified in 2005. The Update Committee did not make recommendations to amend these rules based upon Uniform Rule modifications.

        (4) Prevent another from being a witness or disclosing any matter or producing any object or writing.

    (b) Nothing herein shall be construed to confer a privilege otherwise limited by statute.

 

2016 NHRE Update Committee Note

No change was made to New Hampshire Rule of Evidence 501 by supreme court order dated April 20, 2017, effective July 1, 2017. None of the privilege rules were adopted from the Federal Rules of Evidence so they were not part of the Update Committee’s targeted review. Some of the rules of privilege are adopted from the Uniform Rules of Evidence and some of them summarize New Hampshire statutes on privilege that were in existence at the time the New Hampshire Rules of Evidence were adopted. The Uniform Rules of Evidence were modified in 2005. The Update Committee did not make recommendations to amend these rules based upon Uniform Rule modifications.

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Rule 503. Patient's Privilege

(a) The confidential relations and communications between a physician or surgeon licensed under provisions of RSA Chapter 329 and his or her patient are placed on the same basis as those provided by law between attorney and client, and, except as otherwise provided by law, no such physician or surgeon shall be required to disclose such privileged communications. Confidential relations and communications between a patient and any person working under the supervision of a physician or surgeon that are customary and necessary for diagnosis and treatment are privileged to the same extent as though those relations or communications were with such supervising physician or surgeon.

    (b) The confidential relations and communications between a psychologist or pastoral counselor certified under provisions of RSA 330-A and his and her client are placed on the same basis as those provided by law between attorney and client, and except as authorized by the patient or otherwise provided by law, no psychologist or pastoral counselor shall be required to disclose such privileged communications. Confidential relations and communications between a client and any person working under the supervision of a psychologist or pastoral counselor that are necessary and customary for diagnosis and treatment are privileged to the same extent as though those relations or communications were with such supervising psychologist or pastoral counselor.


2016 NHRE Update Committee Note

No change was made to New Hampshire Rule of Evidence 503 by supreme court order dated April 20, 2017, effective July 1, 2017. None of the privilege rules were adopted from the Federal Rules of Evidence so they were not part of the Update Committee’s targeted review. Some of the rules of privilege are adopted from the Uniform Rules of Evidence and some of them summarize New Hampshire statutes on privilege that were in existence at the time the New Hampshire Rules of Evidence were adopted. The Uniform Rules of Evidence were modified in 2005. The Update Committee did not make recommendations to amend these rules based upon Uniform Rule modifications.

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Rule 504. Husband and Wife Privilege

Husband and wife are competent witnesses for or against each other in all cases, civil and criminal, except that unless otherwise specifically provided, neither shall be allowed to testify against the other as to any statement, conversation, letter or other communication made to the other or to another person, nor shall either be allowed in any case to testify as to any matter which in the opinion of the Court would lead to a violation of marital confidence.
2016 NHRE Update Committee Note

No change was made to New Hampshire Rule of Evidence 504 by supreme court order dated April 20, 2017, effective July 1, 2017. None of the privilege rules were adopted from the Federal Rules of Evidence so they were not part of the Update Committee’s targeted review. Some of the rules of privilege are adopted from the Uniform Rules of Evidence and some of them summarize New Hampshire statutes on privilege that were in existence at the time the New Hampshire Rules of Evidence were adopted. The Uniform Rules of Evidence were modified in 2005. The Update Committee did not make recommendations to amend these rules based upon Uniform Rule modifications.

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Rule 505. Religious Privilege

A priest, rabbi or ordained or licensed minister of any church or a duly accredited Christian Science practitioner shall not be required to disclose a confession or confidence made to him or her in his or her professional character as spiritual advisor unless the person confessing or confiding waives the privilege.
2016 NHRE Update Committee Note

No change was made to New Hampshire Rule of Evidence 505 by supreme court order dated April 20, 2017, effective July 1, 2017. None of the privilege rules were adopted from the Federal Rules of Evidence so they were not part of the Update Committee’s targeted review. Some of the rules of privilege are adopted from the Uniform Rules of Evidence and some of them summarize New Hampshire statutes on privilege that were in existence at the time the New Hampshire Rules of Evidence were adopted. The Uniform Rules of Evidence were modified in 2005. The Update Committee did not make recommendations to amend these rules based upon Uniform Rule modifications.

|711|8336

Rule 506. Reserved

2016 NHRE Update Committee Note

No change was made to New Hampshire Rule of Evidence 506 by supreme court order dated April 20, 2017, effective July 1, 2017. None of the privilege rules were adopted from the Federal Rules of Evidence so they were not part of the Update Committee’s targeted review. Some of the rules of privilege are adopted from the Uniform Rules of Evidence and some of them summarize New Hampshire statutes on privilege that were in existence at the time the New Hampshire Rules of Evidence were adopted. The Uniform Rules of Evidence were modified in 2005. The Update Committee did not make recommendations to amend these rules based upon Uniform Rule modifications.

|711|8341

Rule 507. Trade Secrets

A person has a privilege, which may be claimed by the person or the person's agent or employee, to refuse to disclose and to prevent other persons from disclosing a trade secret owned by the person, if the allowance of the privilege will not tend to conceal fraud or otherwise work injustice. If disclosure is directed, the court shall take such protective measures as the interest of the holder of the privilege and of the parties and the interests of justice require.

2016 NHRE Update Committee Note

No change was made to New Hampshire Rule of Evidence 507 by supreme court order dated April 20, 2017, effective July 1, 2017. None of the privilege rules were adopted from the Federal Rules of Evidence so they were not part of the Update Committee’s targeted review. Some of the rules of privilege are adopted from the Uniform Rules of Evidence and some of them summarize New Hampshire statutes on privilege that were in existence at the time the New Hampshire Rules of Evidence were adopted. The Uniform Rules of Evidence were modified in 2005. The Update Committee did not make recommendations to amend these rules based upon Uniform Rule modifications.

|711|8346

Rule 508. Reserved

2016 NHRE Update Committee Note

No change was made to New Hampshire Rule of Evidence 508 by supreme court order dated April 20, 2017, effective July 1, 2017. None of the privilege rules were adopted from the Federal Rules of Evidence so they were not part of the Update Committee’s targeted review. Some of the rules of privilege are adopted from the Uniform Rules of Evidence and some of them summarize New Hampshire statutes on privilege that were in existence at the time the New Hampshire Rules of Evidence were adopted. The Uniform Rules of Evidence were modified in 2005. The Update Committee did not make recommendations to amend these rules based upon Uniform Rule modifications.

|711|8356

Rule 509. Identity of Informer

(a) Rule of Privilege. The United States or a state or subdivision thereof has a privilege to refuse to disclose the identity of a person who has furnished information relating to or assisting in an investigation of a possible violation of a law to a law enforcement officer or member of a legislative committee or its staff conducting an investigation.

    (b) Who May Claim. The privilege may be claimed by an appropriate representative of the public entity to which the information was furnished.

    (c) Exceptions.

        (1) Voluntary Disclosure; Informer a Witness. No privilege exists under this rule (A) if the identity of the informer or the informer's interest in the subject matter of his or her communication has been disclosed by a holder of the privilege or by the informer's own deliberate action to those who would have cause to resent the communication, or (B) if the informer testifies as a witness for the government.

        (2) Testimony on Relevant Issue. If it appears in the case that an informer may be able to give testimony relevant to any issue in a criminal case relating to the defendant's guilt or innocence or to a fair determination of a material issue on the merits in a civil case to which a public entity is a party, and the informed public entity invokes the privilege, the court shall give the public entity an opportunity to show in camera facts relevant to determining whether the informer can, in fact, supply that testimony. The showing will ordinarily be in the form of affidavits, but the court may direct that testimony be taken if it finds that the matter cannot be resolved satisfactorily upon affidavit. If the court finds there is a reasonable probability that the informer can give the testimony, and the public entity elects not to disclose the informer's identity, in criminal cases the court on motion of the defendant or on its own motion shall grant appropriate relief, which may include one or more of the following: requiring the prosecuting attorney to comply; granting the defendant additional time or a continuance; relieving the defendant from making disclosures otherwise required of the defendant; prohibiting the prosecuting attorney from introducing specified evidence; and dismissing charges. In civil cases, the court may make any order the interests of justice require. Evidence submitted to the court shall be sealed and preserved to be made available to the appellate court in the event of an appeal, and the contents shall not otherwise be revealed without consent of the informed public entity. All counsel and parties are permitted to be present at every stage of proceedings under this subdivision except a showing in camera at which no counsel or party shall be permitted to be present.
2016 NHRE Update Committee Note

No change was made to New Hampshire Rule of Evidence 509 by supreme court order dated April 20, 2017, effective July 1, 2017. None of the privilege rules were adopted from the Federal Rules of Evidence so they were not part of the Update Committee’s targeted review. Some of the rules of privilege are adopted from the Uniform Rules of Evidence and some of them summarize New Hampshire statutes on privilege that were in existence at the time the New Hampshire Rules of Evidence were adopted. The Uniform Rules of Evidence were modified in 2005. The Update Committee did not make recommendations to amend these rules based upon Uniform Rule modifications.

|711|8361

Rule 510. Waiver of Privilege by Voluntary Disclosure

A person claiming a privilege against disclosure waives the privilege if the person or the person's predecessor, while holder of the privilege, knowingly and voluntarily discloses or consents to disclosure of any significant part of the privileged matter. This Rule does not apply if the disclosure itself is privileged.

2016 NHRE Update Committee Note

No change was made to New Hampshire Rule of Evidence 510 by supreme court order dated April 20, 2017, effective July 1, 2017. None of the privilege rules were adopted from the Federal Rules of Evidence so they were not part of the Update Committee’s targeted review. Some of the rules of privilege are adopted from the Uniform Rules of Evidence and some of them summarize New Hampshire statutes on privilege that were in existence at the time the New Hampshire Rules of Evidence were adopted. The Uniform Rules of Evidence were modified in 2005. The Update Committee did not make recommendations to amend these rules based upon Uniform Rule modifications.

|711|8366

Rule 511. Privileged Matter Disclosed Under Compulsion or Without Opportunity To Claim Privilege

A claim of privilege is not defeated by a disclosure that was compelled erroneously or by a disclosure that was made inadvertently during the course of discovery.

2016 NHRE Update Committee Note

No change was made to New Hampshire Rule of Evidence 511 by supreme court order dated April 20, 2017, effective July 1, 2017. None of the privilege rules were adopted from the Federal Rules of Evidence so they were not part of the Update Committee’s targeted review. Some of the rules of privilege are adopted from the Uniform Rules of Evidence and some of them summarize New Hampshire statutes on privilege that were in existence at the time the New Hampshire Rules of Evidence were adopted. The Uniform Rules of Evidence were modified in 2005. The Update Committee did not make recommendations to amend these rules based upon Uniform Rule modifications.

|711|8376

Rule 512. Comment Upon or Inference From Claim of Privilege: Instruction


(a) Comment or Inference Not Permitted. The claim of a privilege, whether in the present proceeding or upon a prior occasion, is not a proper subject of comment by judge or counsel. No inference may be drawn therefrom.

(b) Claiming Privilege Without Knowledge of Jury. In jury cases, proceedings shall be conducted, to the extent practicable, so as to facilitate the making of claims of privilege without the knowledge of the jury.

(c) Jury Instruction. Upon request, any party against whom the jury might draw an adverse inference from a claim of privilege is entitled to an instruction that no inference may be drawn therefrom.

(d) Application -- Self-Incrimination.  Subsections (a) to (c) do not apply in a non-criminal case with respect to the privilege against self-incrimination.

2016 NHRE Update Committee Note

No change was made to New Hampshire Rule of Evidence 512 by supreme court order dated April 20, 2017, effective July 1, 2017. None of the privilege rules were adopted from the Federal Rules of Evidence so they were not part of the Update Committee’s targeted review. Some of the rules of privilege are adopted from the Uniform Rules of Evidence and some of them summarize New Hampshire statutes on privilege that were in existence at the time the New Hampshire Rules of Evidence were adopted. The Uniform Rules of Evidence were modified in 2005. The Update Committee did not make recommendations to amend these rules based upon Uniform Rule modifications.

|711|8381

Rule 601. Competency to Testify in General.

   (a) General rule of competency. Every person is competent to be a witness unless these rules or an applicable statute provide otherwise.
    (b) Incompetence of a witness. A person is not competent to testify as a witness if the court finds that the witness lacks sufficient capacity to observe, remember and narrate as well as understand the duty to tell the truth.

 

2016 NHRE Update Committee Note

The amendments made by supreme court order dated April 20, 2017, effective July 1, 2017, made stylistic changes to the rule.

The amendments retain subsection (b), which is not included in Federal Rule of Evidence 601. Subsection (b) had been added to the New Hampshire Rule in 1985 to help clarify existing New Hampshire law. The Committee saw no reason to delete this provision.

|721|8406

Rule 602. Need for Personal Knowledge

A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may consist of the witness's own testimony. This rule does not apply to a witness's expert testimony under Rule 703.


2016 NHRE Update Committee Note

The amendment made by supreme court order dated April 20, 2017, effective July 1, 2017, made stylistic changes to the rule.

|721|8411

Rule 603. Oath or Affirmation to Testify Truthfully

Before testifying, a witness must give an oath or affirmation to testify truthfully. It must be in a form designed to impress that duty on the witness’s conscience.

2016 NHRE Update Committee Note

The amendment made by supreme court order dated April 20, 2017, effective July 1, 2017, made stylistic changes to the rule.

|721|8416

Rule 604. Interpreters

An interpreter must be qualified and must give an oath or affirmation to make a true translation.

 

2016 NHRE Update Committee Note

The amendment made by supreme court order dated April 20, 2017, effective July 1, 2017, made stylistic changes to the rule.

|721|8421

Rule 605. Judge's Competency as a Witness

The presiding judge may not testify as a witness at the trial. A party need not object to preserve the issue.

 

2016 NHRE Update Committee Note

This rule was adopted by supreme court order dated April 20, 2017, effective July 1, 2017. The Committee recommended adoption of this rule, because it believes that it states the obvious, and there does not seem to be any reason to continue to exclude it.

|721|8426

Rule 606. Juror's Competency as a Witness

No juror may testify as a witness before other jurors in the same jury venire.

2016 NHRE Update Committee Note

The amendment made by supreme court order dated April 20, 2017, effective July 1, 2017, made stylistic and substantive changes to the rule.

New Hampshire Rule of Evidence 606 differs from Federal Rule of Evidence 606. Federal Rule of Evidence 606 includes a subsection (a) and a subsection (b). The language of subsection (a) of the federal rule is similar, but not identical, to the language set forth in New Hampshire Rule of Evidence 606. The language of New Hampshire Rule of Evidence 606 recognizes the unique nature of New Hampshire jury practice.

New Hampshire Rule of Evidence 606 does not include the language of Federal Rule of Evidence 606(b) because the language of the Federal Rule appears to be more restrictive than New Hampshire law. The Committee saw no reason to restrict the judge’s discretion.

|721|8431

Rule 607. Who May Impeach a Witness

Any party, including the party that called the witness, may attack the witness’s credibility.

2016 NHRE Update Committee Note

The amendment made by supreme court order dated April 20, 2017, effective July 1, 2017, made stylistic changes to the rule.

|721|8436

Rule 608. A Witness's Character for Truthfulness or Untruthfulness.

(a) Reputation or Opinion Evidence. A witness’s credibility may be attacked or supported by testimony about the witness’s reputation for having a character for truthfulness or untruthfulness, or by testimony in the form of an opinion about that character. But evidence of truthful character is admissible only after the witness’s character for truthfulness has been attacked.

(b) Specific Instances of Conduct. Except for a criminal conviction under Rule 609, extrinsic evidence is not admissible to prove specific instances of a witness’s conduct in order to attack or support the witness’s character for truthfulness. But the court may, on cross-examination, allow them to be inquired into if they are probative of the character for truthfulness or untruthfulness of:

(1) the witness; or

(2) another witness whose character the witness being cross-examined has testified about.

By testifying on another matter, a witness does not waive any privilege against self-incrimination for testimony that relates only to the witness’s character for truthfulness.

2016 NHRE Update Committee Note
The amendments made by supreme court order dated April 20, 2017, effective July 1, 2017, made stylistic and substantive changes to the rule.

In recommending these amendments, the Committee adopts the comments in the Advisory Committee Notes for Federal Rule 608, including 2003, including the following:

The Rule has been amended to clarify that the absolute prohibition on extrinsic evidence applies only when the sole reason for proffering that evidence is to attack or support the witness’ character for truthfulness. . . .  On occasion the Rule's use of the overbroad term “credibility” has been read “to bar extrinsic evidence for bias, competency and contradiction impeachment since they too deal with credibility.”  . . . . The amendment conforms the language of the Rule to its original intent, which was to impose an absolute bar on extrinsic evidence only if the sole purpose for offering the evidence was to prove the witness’ character for veracity.

By limiting the application of the Rule to proof of a witness’ character for truthfulness, the amendment leaves the admissibility of extrinsic evidence offered for other grounds of impeachment (such as contradiction, prior inconsistent statement, bias and mental capacity) to Rules 402 and 403.

|721|8441

Rule 609. Impeachment by Evidence of A Criminal Conviction

(a) In General. The following rules apply to attaching a witness's character for truthfulness by evidence of a criminal conviction:

(1) for a crime that, in the convicting jurisdiction, was punishable by death or by imprisonment for more than one year, the evidence:

(A) must be admitted, subject to Rule 403, in a civil case or in a criminal case in which the witness is not a defendant; and

(B) must be admitted in a criminal case in which the witness is a defendant, if the probative value of the evidence outweighs its prejudicial effect to that defendant; and

(2) for any crime regardless of the punishment, the evidence must be admitted if the court can readily determine that establishing the elements of the crime required proving - or the witness’s admitting - a dishonest act or false statement.

(b) Limit on Using the Evidence After 10 Years. This subdivision (b) applies if more than 10 years have passed since the witness’s conviction or release from confinement for it, whichever is later. Evidence of the conviction is admissible only if:

(1) its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect; and

(2) the proponent gives an adverse party reasonable written notice of the intent to use it so that the party has a fair opportunity to contest its use.

(c) Effect of a Pardon, Annulment, or Certificate of Rehabilitation. Evidence of a conviction is not admissible if:

(1) the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding that the person has been rehabilitated, and the person has not been convicted of a later crime punishable by death or by imprisonment for more than one year, or

(2) the conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence.

(d) Juvenile Adjudications. Evidence of a juvenile adjudication is admissible under this rule only if:

(1) it is offered in a criminal case;

(2) the adjudication was of a witness other than the defendant;

(3) an adult’s conviction for that offense would be admissible to attack the adult’s credibility; and

(4) admitting the evidence is necessary to fairly determine guilt or innocence.

(e) Pendency of an Appeal. A conviction that satisfies this rule is admissible even if any appeal is pending. Evidence of the pendency of the appeal is also admissible.
2016 NHRE Update Committee Note

The amendments made by supreme court order dated April 20, 2017, effective July 1, 2017, made substantive and stylistic changes to the rule. The language of the New Hampshire Rule mirrors Federal Rule of Evidence 609, except that the New Hampshire rule includes the phrase “of the appeal” in the second sentence of subdivision (e).

The phrase “for a crime that, in the convicting jurisdiction, was punishable by death or by imprisonment for more than one year,” used in 609(a)(1), means for a crime that was punishable by death or by imprisonment for more than one year under the law under which the witness was convicted.

For additional guidance regarding the substantive changes to the rule see the notes following Federal Rules of Evidence 609 (Notes of Advisory Committee on 1990 and 2006 amendments).

|726|8446

Rule 610. Religious Beliefs or Opinions

Evidence of a witness’s religious beliefs or opinions is not admissible to attack or support the witness’s credibility.

 

2016 NHRE Update Committee Note

The amendments made by supreme court order dated April 20, 2017, effective July 1, 2017, made stylistic changes to the rule.

|721|8451

Rule 611. Mode and Order of Examining Witnesses and Presenting Evidence

(a) Control by the Court; Purposes. The court should exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to:

(1) make those procedures effective for determining the truth;

(2) avoid wasting time; and

(3) protect witnesses from harassment or undue embarrassment.

(b) Scope of Cross-Examination. A witness may be cross-examined on any matter relevant to any issue in the case, including credibility. In the interests of justice, the judge may limit cross-examination with respect to matters not testified to on direct examination.
(c) Leading Questions. Leading questions should not be used on direct examination except as necessary to develop the witness's testimony. Ordinarily, the court should allow leading questions:

(1) on cross-examination; and

(2) When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party.

 

2016 NHRE Update Committee Note

The amendments made by supreme court order dated April 20, 2017, effective July 1, 2017, made stylistic changes to subsections (a) and (c) of the rule. Subsections (a) and (c) mirror Federal Rule of Evidence 611(a) and (c). No change was made to subsection (b). New Hampshire Rule of Evidence 611(b) generally allows for more latitude on the scope of cross-examination than does FRE 611(b). The committee saw no reason to change this practice.

|721|8456

Rule 612. Writing Used to Refresh a Witness's Memory

(a) Control by the Court; Purposes. The court should exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to:

(1) make those procedures effective for determining the truth;

(2) avoid wasting time; and

(3) protect witnesses from harassment or undue embarrassment.

(b) Scope of Cross-Examination. A witness may be cross-examined on any matter relevant to any issue in the case, including credibility. In the interests of justice, the judge may limit cross-examination with respect to matters not testified to on direct examination.
(c) Leading Questions. Leading questions should not be used on direct examination except as necessary to develop the witness's testimony. Ordinarily, the court should allow leading questions:

(1) on cross-examination; and

(2) When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party.(a) Scope. This rule gives an adverse party certain options when a witness uses a writing to refresh memory:

(1) while testifying; or

(2) before testifying, if the court decides that justice requires the party to have those options.

(b) Adverse Party’s Options; Deleting Unrelated Matter. An adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness about it, and to introduce in evidence any portion that relates to the witness’s testimony. If the producing party claims that the writing includes unrelated matter, the court must examine the writing in camera, delete any unrelated portion, and order that the rest be delivered to the adverse party. Any portion deleted over objection must be preserved for the record.

(c) Failure to Produce or Deliver the Writing. If a writing is not produced or is not delivered as ordered, the court may issue any appropriate order. But if the prosecution does not comply in a criminal case, the court must strike the witness’s testimony or - if justice so requires - declare a mistrial.

2016 NHRE Update Committee Note

 

The amendments made by supreme court order dated April 20, 2017, effective July 1, 2017, made stylistic changes to the rule.

 

2016 NHRE Update Committee Note

The amendments made by supreme court order dated April 20, 2017, effective July 1, 2017, made stylistic changes to subsections (a) and (c) of the rule. Subsections (a) and (c) mirror Federal Rule of Evidence 611(a) and (c). No change was made to subsection (b). New Hampshire Rule of Evidence 611(b) generally allows for more latitude on the scope of cross-examination than does FRE 611(b). The committee saw no reason to change this practice.

|721|8461

Rule 613. Witness's Prior Statements

(a) Showing or Disclosing the Statement During Examination. When examining a witness about the witness’s prior statement, a party need not show it or disclose its contents to the witness. But the party must, on request, show it or disclose its contents to an adverse party’s attorney.

(b) Extrinsic Evidence of a Prior Inconsistent Statement. Extrinsic evidence of a witness’s prior inconsistent statement is admissible only if the witness is given an opportunity to explain or deny the statement and an adverse party is given an opportunity to examine the witness about it, or if justice so requires. This subdivision (b) does not apply to an opposing party’s statement under Rule 801(d)(2).

(c) Extrinsic Evidence of a Prior Consistent Statement for Rehabilitation. Except as provided in Rule 801(d)(1)(B) or (C), evidence of a prior consistent statement may be admitted only for rehabilitation:

(1) after the witness’s credibility has been attacked through the use of a prior inconsistent statement; and

(2) where the probative value of the prior consistent statement outweighs its prejudicial effect.

If a prior consistent statement is admitted for rehabilitation the court shall give a limiting instruction that the statement is not substantive evidence.

2016 NHRE Update Committee Note

The amendments made by supreme court order dated April 20, 2017, effective July 1, 2017, made stylistic and substantive changes.

The amendments made stylistic changes to subsections (a) and (b). Subsections (a) and (b) mirror Federal Rule of Evidence 613 (a) and (b). The amendments also added subsection (c), codifying the New Hampshire common law rule regarding the use of prior consistent statements for the purpose of rehabilitation.

When a witness has been impeached by the use of prior inconsistent statements, New Hampshire common law “allows the admission of prior consistent statements for the purpose of rehabilitation . . . . The prior consistent statements, however, may not be used substantively, and a defendant is entitled to a limiting instruction to prevent unfair prejudice. Even when a witness’s credibility has been attacked through the use of prior inconsistent statements, however, the common law rule allowing admission of rehabilitative testimony should be used with caution.” State v. White, 159 N.H. 76, 79 (2009) (internal citations and quotation omitted).

|721|8466

Rule 614. Court's Calling or Examining a Witness

(a) Calling. The court may call a witness on its own or at a party’s request. Each party is entitled to cross-examine the witness.

(b) Examining. The court may examine a witness regardless of who calls the witness.

(c) Objections. A party may object to the court's calling or examining a witness either at that time or at the next opportunity when the jury is not present.

 

2016 NHRE Update Committee Note

The amendments made by supreme court order dated April 20, 2017, effective July 1, 2017, made stylistic and substantive changes. The language of New Hampshire Rule of Evidence 614 is now identical to Federal Rule of Evidence 614. Former New Hampshire Rule of Evidence stated that a judge may not ordinarily interrogate a witness. The Committee recommended adoption of the Federal Rule because, as a practical matter, courts do interrogate witnesses.

|721|8471

Rule 615. Excluding Witnesses

(a) At a party’s request, the court must order witnesses excluded so that they cannot hear other witnesses’ testimony. Or the court may do so on its own. But this rule does not authorize excluding:

(1) a party who is a natural person;

(2) an officer or employee of a party that is not a natural person, after being designated as the party’s representative by its attorney;

(3) a person whose presence a party shows to be essential to presenting the party’s claim or defense; or

(4) a person authorized by statute to be present.

(b) A sequestration order issued under subsection (a) of this rule prohibits a sequestered witness:

(1) from being present in the courtroom until after the witness has testified and is not subject to recall by any party; and

(2) from discussing the testimony he or she has given in the proceeding with any other witness who is subject to sequestration and who has not yet testified.

A sequestration order shall not be construed to impose additional restrictions unless the order clearly describes such restrictions.

 

2016 Update Committee Note

The amendments made by supreme court order dated April 20, 2017, effective July 1, 2017, made stylistic and substantive changes to the rule.

The amendments designated the first paragraph (a) and added subdivision (b). The changes to (a) are stylistic and mirror the federal rule. The addition of (b), not included in Federal Rule of Evidence 615, defines the scope of sequestration, makes clear that a standard sequestration order imposes no other restrictions unless they are clearly described, and is consistent with current New Hampshire practice.

For additional guidance regarding the substantive changes to the rule see the notes following Federal Rules of Evidence 615 (Notes of Advisory Committee on 1998 amendment).

|721|8476

Rule 701. Opinion Testimony by Lay Witnesses

If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is:

(a) rationally based on the witness's perception;

(b) helpful to clearly understanding the witness's testimony or to determining a fact in issue; and

(c) not based on scientific, technical or other specialized knowledge within the scope of Rule 702.

2016 NHRE Update Committee Note

The amendment made by supreme court order dated April 20, 2017, effective July 1, 2017, made stylistic changes to the rule and added subsection (c).

For additional guidance regarding the substantive changes to the rule see the notes following Federal Rules of Evidence 701 (Notes of Advisory Committee on 2000 amendment).

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Rule 702. Testimony by Expert Witnesses

A witness who is qualified as an expert by knowledge, skill, experience, training, or education, may testify in the form of an opinion or otherwise if:

(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods; and

(d) the expert has reliably applied the principles and methods to the facts of the case.

2016 NHRE Update Committee Note

The amendments made by supreme court order dated April 20, 2017, effective July 1, 2017, made stylistic changes to the rule and added subsections (b), (c) and (d).

For additional guidance regarding the substantive changes to the rule see the notes following Federal Rules of Evidence 702 (Notes of Advisory Committee on 2000 amendment).

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Rule 703. Bases of An Expert's Opinion Testimony

An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed. If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted. But if the facts or data would otherwise be inadmissible, the proponent of the opinion may disclose them to the jury only if their probative value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect.

 

2016 Update Committee Note

The amendments made by supreme court order dated April 20, 2017, effective July 1, 2017, made stylistic and substantive changes to the rule.

In recommending this rule, the Committee adopts the comments in the Advisory Committee Notes for Federal Rule 703, including 2000 and 2011, including the following:

This amendment covers facts or data that cannot be admitted for any purpose other than to assist the jury to evaluate the expert's opinion. The balancing test provided in this amendment is not applicable to facts or data that are admissible for any other purpose but have not yet been offered for such a purpose at the time the expert testifies.

The amendment provides a presumption against disclosure to the jury of information used as the basis of an expert's opinion and not admissible for any substantive purpose, when that information is offered by the proponent of the expert. In a multi-party case, where one party proffers an expert whose testimony is also beneficial to other parties, each such party should be deemed a “proponent” within the meaning of the amendment.

|731|8491

Rule 704. Opinion on an Ultimate Issue

An opinion is not objectionable just because it embraces an ultimate issue.

 

2016 NHRE Update Committee Note

The amendments made by supreme court order dated April 20, 2017, effective July 1, 2017, made stylistic changes to the rule.

Federal Rule of Evidence 704 includes a subsection (b), which provides an exception to the general rule stated in FRE 704(a). Subsection (b) of the federal rule reads,

Exception. In a criminal case, an expert witness must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense. These matters are for the trier of fact alone.

This amendment was made to the federal rule in 1984, after John Hinkley Jr. was found not guilty by reason of insanity in the assassination attempt on President Reagan. There is no reason to create the exception in New Hampshire.

|731|8496

Rule 705. Disclosing the Facts or Data Underlying an Expert's Opinion

Unless the court orders otherwise, an expert may state an opinion - and give the reasons for it - without first testifying to the underlying facts or data. But the expert may be required to disclose those facts or data on cross-examination.

 

2016 NHRE Update Committee Note

The amendment made by supreme court order dated April 20, 2017, effective July 1, 2017, made stylistic and substantive changes to the rule.

For additional guidance regarding changes to the rule see the notes following Federal Rules of Evidence 705 (Notes of Advisory Committee on 1993 amendment).

|731|8501

Rule 706. Reserved

2016 NHRE Update Committee Note

Rule 706 was not adopted by supreme court order dated April 20, 2017, effective July 1, 2017. As stated in the original Reporter’s Notes, New Hampshire has a variety of statutes that deal with the appointment of experts. The committee saw no reason to change the New Hampshire rule.

|731|8506

Rule 801. Definitions That Apply to this Article; Exclusions from Hearsay

(a) Statement. "Statement" means a person's oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion.

    (b) Declarant. "Declarant" means the person who made the statement.

    (c) Hearsay. "Hearsay" means a statement that:

(1) the declarant does not make while testifying at the current trial or hearing; and

(2) a party offers in evidence to prove the truth of the matter asserted in the statement.

    (d) Statements That Are Not Hearsay. A statement that meets the following conditions is not hearsay:

        (1) A Declarant-Witness's Prior Statement. The declarant testifies and is subject to cross-examination about a prior statement, and the statement:

(A) is inconsistent with the declarant's testimony, and was given under penalty of perjury at a trial, hearing, or other proceeding, or in a deposition;

(B) is consistent with the declarant's testimony and is offered to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying; or

(C) identifies a person as someone the declarant perceived earlier.

(2) An Opposing Party's Statement. The statement is offered against an opposing party and:

(A) Was made by the party, in an individual or representative capacity;

(B) is one the party manifested that it adopted or believed to be true;

(C) was made by a person whom the party authorized to make a statement on the subject;

(D) was made by the party's agent or employee on a matter within the scope of that relationship, and while it existed; or

(E) was made by the party's coconspirator during and in furtherance of the conspiracy.

The statement must be considered but does not by itself establish the declarant’s authority under (C); the existence or scope of the relationship under (D); or the existence of the conspiracy or participation in it under (E).

 

2016 NHRE Update Committee Note

The amendments made by supreme court order dated April 20, 2017, effective July 1, 2017, made stylistic changes, and one substantive change to the rule.

The amendment added the last sentence of (d)(2). The Committee notes that this amendment was made to Federal Rule of Evidence 801 after New Hampshire adopted the federal rules in 1985, but the New Hampshire rule was never updated. For additional guidance regarding changes to the rule see the notes following Federal Rules of Evidence 801 (Notes of Advisory Committee on 1997 amendment).

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Rule 802. The Rule Against Hearsay

Hearsay is not admissible unless any of the following provides otherwise:

a statute;
these rules; or
other rules prescribed by the Supreme Court.
 

2016 NHRE Update Committee Note

 

The amendments made by supreme court order dated April 20, 2017, effective July 1, 2017, made stylistic changes to the rule.

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Rule 803. Exceptions to the Rule Against Hearsay - Regardless of Whether the Declarant is Available as a Witness.

The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness:

(1) Present Sense Impression

A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it.

(2) Excited Utterance

A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused.

(3) Then-Existing Mental, Emotional, or Physical Condition

    A statement of the declarant's then-existing state of mind such as motive, intent or plan), or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the validity or terms of the declarant's will.

(4) Statement Made for Medical Diagnosis or Treatment. A statement that:

(A) is made for - and is reasonably pertinent to - medical diagnosis or treatment;

(B) describes medical history; past or present symptoms or sensations; their inception; or their general cause; and

(C) the court affirmatively finds were made under circumstances indicating their trustworthiness.

(5) Recorded Recollection. A record that:

(A) is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately;

(B) was made or adopted by the witness when the matter was fresh in the witness’s memory; and

(C) accurately reflects the witness’s knowledge.

If admitted, the record may be read into evidence or played before a jury but may be received as an exhibit only if offered by an adverse party.

(6) Records of a Regularly Conducted Activity. A record of an act, event, condition, opinion, or diagnosis if:

(A) the record was made at or near the time by - or from information transmitted by - someone with knowledge;

(B) the record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit;

(C) making the record was a regular practice of that activity;

(D) all these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with Rule 902(11) or (12) or with a statute permitting certification; and

(E) neither the source of information nor the method or circumstances of preparation indicate a lack of trustworthiness.

(7) Absence of a Record of a Regularly Conducted Activity. Evidence that a matter is not included in a record described in paragraph (6) if:

(A) the evidence is admitted to prove that the matter did not occur or exist;

(B) a record was regularly kept for a matter of that kind; and

(C) neither the possible source of the information nor other circumstances indicate a lack of trustworthiness.

(8) Public Records. A record or statement of a public office if:

(A) it sets out:

(i) the office’s activities;

(ii) a matter observed while under a legal duty to report, but not including, in a criminal case, a matter observed by law-enforcement personnel; or

(iii) in a civil case or against the government in a criminal case, factual findings from a legally authorized investigation; and


(B) neither the source of information nor other circumstances indicate a lack of trustworthiness.

(9) Public Records of Vital Statistics. A record of a birth, death, or marriage, if reported to a public office in accordance with a legal duty.

(10) Absence of a Public Record. Testimony - or a certification under Rule 902 - that a diligent search failed to disclose a public record or statement if the testimony or certification is admitted to prove that:

(A) the record or statement does not exist; or

(B) a matter did not occur or exist, if a public office regularly kept a record or statement for a matter of that kind.

This exception shall apply only if neither the possible source of the information nor other circumstances indicate a lack of trustworthiness.

(11) Records of Religious Organizations Concerning Personal or Family History. A statement of birth, legitimacy, ancestry, marriage, divorce, death, relationship by blood or marriage, or similar facts of personal or family history, contained in a regularly kept record of a religious organization.

(12) Certificates of Marriage, Baptism, and Similar Ceremonies. A statement of fact contained in a certificate:

(A) made by a person who is authorized by a religious organization or by law to perform the act certified;

(B) attesting that the person performed a marriage or similar ceremony or administered a sacrament; and

(C) purporting to have been issued at the time of the act or within a reasonable time after it.

(13) Family Records. A statement of fact about personal or family history contained in a family record, such as a Bible, genealogy, chart, engraving on a ring, inscription on a portrait, or engraving on an urn or burial marker.

(14) Records of Documents That Affect an Interest in Property. The record of a document that purports to establish or affect an interest in property if:

(A) the record is admitted to prove the content of the original recorded document, along with its signing and its delivery by each person who purports to have signed it;

(B) the record is kept in a public office; and

(C) a statute authorizes recording documents of that kind in that office.

(15) Statements in Documents That Affect an Interest in Property. A statement contained in a document that purports to establish or affect an interest in property if the matter stated was relevant to the document's purpose - unless later dealings with the property are inconsistent with the truth of the statement, or the purport of the document.
(16) Statements in Ancient Documents. A statement in a document that is at least 20 years old and whose authenticity is established.

(17) Market Reports and Similar Commercial Publications. Market quotations, lists, directories, or other compilations, that are generally relied on by the public or by persons in particular occupations.

(18) Statements in Learned Treatises, Periodicals, or Pamphlets. A statement contained in a treatise, periodical, or pamphlet if:

(A) the statement is called to the attention of an expert witness on cross-examination or relied on by the expert on direct examination; and

(B) the publication is established as a reliable authority by the expert’s admission or testimony, by another expert’s testimony, or by judicial notice.

If admitted, the statement may be read into evidence but not received as an exhibit unless the Court finds that the probative value of the statement as an exhibit outweighs the prejudicial effect of its admission.

(19) Reputation Concerning Personal or Family History. A reputation among a person's family by blood, adoption, or marriage - or among a person's associates or in the community - concerning the person's birth, adoption, legitamacy, ancestry, marriage, divorce, death, relationship by blood, adoption, or marriage or similar facts of personal or family history.

(20) Reputation Concerning Boundaries or General History. A reputation in a community - arising before the controversy, concerning boundaries of land in the community or customs that affect the land, or concerning general historical events important to that community, state, or nation.

(21) Reputation Concerning Character. A reputation among a person's associates or in the community concerning the person's character.

(22) Judgment of a Previous Conviction. Evidence of a final judgment of conviction if:

(A) the judgment was entered after a trial or guilty plea, but not a nolo contendere plea;

(B) the conviction was for a crime punishable by death or by imprisonment for more than a year;

(C) the evidence is admitted to prove any fact essential to the judgment; and

(D) when offered by the prosecutor in a criminal case for a purpose other than impeachment, the judgment was against the defendant.

The pendency of an appeal may be shown but does not affect admissibility.

(23) Judgments Involving Personal, Family, or General History, or a Boundary. A judgment that is admitted to prove a matter of personal, family, or general history, or boundaries, if the matter:

(A) was essential to the judgment; and

(B) could be proved by evidence of reputation.

(24) Other Exceptions (Transferred to Rule 807)  

2016 NHRE Update Committee Note

The amendments made by supreme court order dated April 20, 2017, effective July 1, 2017, made stylistic and substantive changes to the rule.

New Hampshire Rule of Evidence 803(4), as amended, continues to include a requirement that the court find that statements made for medical diagnosis or treatment were made under circumstances indicating their trustworthiness. This requirement is not included in Federal Rule of Evidence 803(4). To eliminate this requirement would make this rule inconsistent with the other exceptions to the hearsay rule.

The amendment of New Hampshire Rule of Evidence 803(5) includes a substantive change relating to the admissibility of the recorded recollection as an exhibit. The language of the previous New Hampshire rule stated that past recollection recorded, “may be received as an exhibit unless the court, in its discretion, finds that such admission is unduly cumulative or prejudicial.” Because past recollection recorded is the statement of a witness who can no longer remember and is therefore subject to only limited cross-examination, the document should not be allowed as an exhibit unless offered by an adverse party, as is provided in the federal rule.

Unlike the federal rule, New Hampshire Rule 803(5) includes the language, “or played before a jury,” to make clear that a recorded recollection may include an audio or video recording.

New Hampshire Rule of Evidence 803(10), as amended, adds language to make clear that the lack of a public record exception to the hearsay rule shall apply only if neither the possible source of the information nor other circumstances indicate a lack of trustworthiness. This language was not included in either the New Hampshire Rule adopted in 1985 or the federal rule. Not including this language would make this rule inconsistent with New Hampshire Rule of Evidence 803(7), regarding ordinary business records, and 803(8)(B), regarding public records.

New Hampshire Rule of Evidence 803(18) continues to include the statement, “If admitted, the statement may be read into evidence but may not be received as an exhibit unless the Court finds that the probative value of the statement as an exhibit outweighs the prejudicial effect of its admission.” The prior New Hampshire rule allowed the judge discretion with respect to whether learned treatises can be admitted as exhibits after being read to the jury. The federal rule does not allow treatises to be admitted as exhibits under any circumstance. Because these treatises can sometimes be lengthy and difficult to understand when only received orally, this aspect of the New Hampshire rule has been retained.

New Hampshire Rule of Evidence 803(22) is new.

New Hampshire Rule of Evidence 803(24) has been transferred to New Hampshire Rule of Evidence 807.

For additional guidance regarding changes to the rule see the notes following Federal Rules of Evidence 803 (Notes of Advisory Committee on 1997 and 2000 amendments).

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Rule 804. Exceptions to the Rule Against Hearsay - When the Declarant Is Unavailable as a Witness

(a) Criteria for Being Unavailable. A declarant is considered to be unavailable as a witness if the declarant:

(1) is exempted from testifying about the subject matter of the declarant's statement because the court rules that a privilege applies:

        (2) refuses to testify about the subject matter despite a court order to do so;

        (3) testifies to not remembering the subject matter;

        (4) cannot be present or testify at the trial or hearing because of death or a then-existing infirmity, physical illness, or mental illness; or

        (5) is absent from the trial or hearing and the statement's proponent has not been able, by process or other reasonable means, to procure:

(A) the declarant's attendance, in the case of a hearsay exception under Rule 804(b)(1) or (6); or

(B) the declarant's attendance or testimony, in the case of a hearsay exception under Rule 804(b)(2), (3), or (4).

But this subdivision (a) does not apply if the statement's proponent procured or wrongfully caused the declarant's unavailability as a witness in order to prevent the declarant from attending or testifying.

(b) The Exceptions. The following are not excluded by the rule against hearsay if the declarant is unavailable as a witness:

(1) Former Testimony. Testimony that:

(A) was given as a witness at a trial, hearing, or lawful deposition, whether given during the current proceeding or a different one; and

(B) is now offered against a party who had - or, in a civil case, whose predecessor in interest had - an opportunity and similar motive to develop it by direct, cross-, or redirect examination.

(2) Statement Under the Belief of Imminent Death. In a prosecution for homicide or in a civil case, a statement that the declarant, while believing the declarant's death to be imminent, made about its cause or circumstances.

(3) Statement Against Interest. A statement that:

(A) a reasonable person in the declarant's position would have made only if the person believed it to be true because, when made, it was so contrary to the declarant's proprietary or pecuniary interest or had so great a tendency to invalidate the declarant's claim against someone else or to expose the declarant to civil or criminal liability; and

(B) is supported by corroborating circumstances that clearly indicate its trustworthiness, if it is offered in a criminal case as one that tends to expose the declarant to criminal liability.   

(4) Statement of Personal or Family History. A statement about:

(A) the declarant's own birth, adoption, legitimacy, ancestry, marriage, divorce, relationship by blood, adoption, or marriage, or similar facts of personal or family history, even though the declarant had no way of acquiring personal knowledge about that fact; or

(B) another person concerning any of these facts, as well as death, if the declarant was related to the person by blood, adoption, or marriage or was so intimately associated with the person's family that the declarant's information is likely to be accurate.

(5) Other Exceptions. (Transferred to Rule 807)

(6) Statement Offered Against a Party That Wrongfully Caused the Declarant's Unavailability. A statement offered against a party that wrongfully caused - or acquiesced in wrongfully causing - the declarant's unavailability as a witness, and did so intending that result.


2016 NHRE Update Committee Note

The amendments made by supreme court order dated April 20, 2017, effective July 1, 2017, made stylistic and substantive changes to the rule.

For additional guidance regarding the substantive changes to the rule see the notes following Federal Rules of Evidence 804 (Notes of Advisory Committee on 1997 and 2000 amendments).

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Rule 805. Hearsay Within Hearsay

Hearsay within hearsay is not excluded by the rule against hearsay if each part of the combined statements conforms with an exception to the rule.

2016 NHRE Update Committee Note

The amendments made by supreme court order dated April 20, 2017, effective July 1, 2017, made stylistic changes to the rule.

|736|8531

Rule 806. Attacking and Supporting The Declarant's Credibility

When a hearsay statement - or a statement described in Rule 801(d) (2)(C), (D), or (E) - has been admitted in evidence, the declarant's credibility may be attacked, and then supported, by any evidence that would be admissible for those purposes if the declarant had testified as a witness. The court may admit evidence of the declarant's inconsistent statement or conduct, regardless of when it occurred or whether the declarant had an opportunity to explain or deny it. If the party against whom the statement was admitted calls the declarant as a witness, the party may examine the declarant on the statement as if on cross-examination.
2016 NHRE Update Committee Note

The amendments made by supreme court order dated April 20, 2017, effective July 1, 2017, made stylistic changes to the rule.

|736|8536

Rule 807. Residual Exception

(a) In General. Under the following circumstances, a hearsay statement is not excluded by the rule against hearsay even if the statement is not specifically covered by a hearsay exception in Rule 803 or 804:

(1) the statement has equivalent circumstantial guarantees of trustworthiness;
(2) it is offered as evidence of a material fact;
(3) it is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts; and
(4) admitting it will best serve the purposes of these rules and the interests of justice.

(b) Notice. The statement is admissible only if, before the trial or hearing, the proponent gives an adverse party reasonable notice of the intent to offer the statement and its particulars, including the declarant’s name and address, so that the party has a fair opportunity to meet it.

2016 NHRE Update Committee Note

This new rule, adopted by supreme court order dated April 20, 2017, effective July 1, 2017, includes the substance of former New Hampshire Rules of Evidence 803(24) and 804(b)(6).

|736|8541

Rule 901. Authenticating or Identifying Evidence

(a) In General. To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.

(b) Examples. The following are examples only - not a complete list - of evidence that satisfies the requirement:

(1) Testimony of a Witness with Knowledge. Testimony that an item is what it is claimed to be.

        (2) Nonexpert Opinion About Handwriting. A nonexpert's opinion that handwriting is genuine, based on a familiarity with it that was not acquired for the current litigation.

(3) Comparison by an Expert Witness or the Trier of Fact. A comparison with an authenticated specimen by an expert witness or the trier of fact.        

        (4) Distinctive Characteristics and the Like. The appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together with all the circumstances.

        (5) Opinion About a Voice. An opinion identifying a person's voice - whether heard firsthand or through mechanical or electronic transmission or recording - based on hearing the voice at any time under circumstances that connect it with the alleged speaker.

        (6) Evidence About A Telephone Conversation. For a telephone conversation, evidence that a call was made to the number assigned at the time to:

(A) a particular person, if circumstances, including self-identification, show that the person answering was the one called; or

(B) a particular business, if the call was made to a business and the call related to business reasonably transacted over the telephone.

(7) Evidence About Public Records. Evidence that:

(A) a document was recorded or filed in a public office as authorized by law; or

(B) a purported public record or statement is from the office where items of this kind are kept.

(8) Evidence About Ancient Documents or Data Compilations. For a document or data compilation, evidence that it:

(A) is in a condition that creates no suspicion about its authenticity;

(B) was in a place where, if authentic, it would likely be; and

(C) is at least 20 years old when offered.

(9) Evidence About a Process or System. Evidence describing a process or system and showing that it produces an accurate result.

        (10) Methods Provided by a Statute or Rule. Any method of authentication or identification allowed by a statute or by other rules prescribed by the Supreme Court.


2016 NHRE Update Committee Note

The amendments made by supreme court order dated April 20, 2017, effective July 1, 2017, made stylistic changes to the rule.

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Rule 902. Evidence That Is Self-Authenticating

The following items of evidence are self-authenticating; they require no extrinsic evidence of authenticity in order to be admitted:

(1) Domestic Public Documents That Are Sealed and Signed. A document that bears:

(A) a seal purporting to be that of the United States; any state, district, commonwealth, territory, or insular possession of the United States; the former Panama Canal Zone; the Trust Territory of the Pacific Islands; a political subdivision of any of these entities; or a department, agency, or officer of any entity named above; and

(B) a signature purporting to be an execution or attestation.

(2) Domestic Public Documents That Are Not Sealed but Are Signed and Certified. A document that bears no seal if:

(A) it bears the signature of an officer or employee of an entity named in Rule 902(1)(A); and

(B) another public officer who has a seal and official duties within that same entity certifies under seal - or its equivalent - that the signer has the offical capacity and that the signature is genuine.

(3) Foreign Public Documents. A document that purports to be signed or attested by a person who is authorized by a foreign country's law to do so. The document must be accompanied by a final certification that certifies the genuineness of the signature and official position of the signer or attester - or of any foreign official whose certificate of genuineness relates to the signature or attestation or is in a chain of certificates of genuineness relating to the signature or attestation. The certification may be made by a secretary of a United States embassy or legation; by a consul general, vice consul, or consular agent of the United States; or by a diplomatic or consular official of the foreign country assigned or accredited to the United States. If all parties have been given a reasonable opportunity to investigate the document's authenticity and accuracy, the court may, for good cause, either:

(A) order that it be treated as presumptively authentic without final certification; or

(B) allow it to be evidenced by an attested summary with or without final certification.

(4) Certified Copies of Public Records. A copy of an official record - or a copy of a document that was recorded or filed in a public office as authorized by law - if the copy is certified as correct by:

(A) the custodian or another person authorized to make the certification; or

(B) a certificate that complies with Rule 902(1), (2), or (3), a statute, or a rule prescribed by the Supreme Court.

(5) Official Publications. A book, pamphlet, or other publication purporting to be issued by a public authority.
(6) Newspapers and Periodicals. Printed material purporting to be a newspaper or periodical.

(7) Trade Inscriptions and the Like. An inscription, sign, tag, or label purporting to have been affixed in the course of business and indicating origin, ownership, or control.

(8) Acknowledged Documents. A document accompanied by a certificate of acknowledgment that is lawfully executed by a notary public or another officer who is authorized to take acknowledgments.

(9) Commercial Paper and Related Documents. Commercial paper, a signature on it, and related documents, to the extent allowed by general commercial law.

(10) Presumptions Under a State or Federal Statute. A signature, document, or anything else that state or federal law declares to be presumptively or prima facie genuine or authentic.

(11) Certified Domestic Records of a Regularly Conducted Activity. The original or a copy of a domestic record that meets the requirements of Rule 803(6)(A)-(C), as shown by a certification of the custodian or another qualified person that complies with a statute or a rule prescribed by the Supreme Court. Before the trial or hearing, the proponent must give an adverse party reasonable written notice of the intent to offer the record - and must make the record and certification available for inspection - so that the party has a fair opportunity to challenge them.

(12) Certified Foreign Records of a Regularly Conducted Activity. In a civil case, the original or a copy of a foreign record that meets the requirements of Rule 902(11), modified as follows: the certification, rather than complying with a statute or Supreme Court rule, must be signed in a manner that, if falsely made, would subject the maker to a criminal penalty in the country where the certification is signed. The proponent must also meet the notice requirements of Rule 902(11).

 

2016 NHRE Update Committee Note

The amendments made by supreme court order dated April 20, 2017, effective July 1, 2017, made stylistic and substantive changes to the rule. 

The language of the amended rule is identical to the language of Federal Rule of Evidence 902.  For additional guidance regarding the substantive changes to the rule see the notes following Federal Rules of Evidence 902 (Notes of Advisory Committee on 2000 amendments).

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Rule 903. Subscribing Witness

A subscribing witness’s testimony is necessary to authenticate a writing only if required by the law of the jurisdiction that governs its validity.

2016 NHRE Update Committee Note

The amendments made by supreme court order dated April 20, 2017, effective July 1, 2017, made stylistic changes to the rule.

|741|8556

Rule 1001. Definitions that Apply to this Article

In this article:

(a) A “writing” consists of letters, words, numbers, or their equivalent set down in any form.

(b) A “recording” consists of letters, words, numbers, or their equivalent recorded in any manner.

(c) A “photograph” means a photographic image or its equivalent stored in any form.

(d) An "original" of a writing or recording means the writing or recording itself or any counterpart intended to have the same effect by the person who executed or issued it. For electronically stored information, “original” means any printout - or other output readable by sight - if it accurately reflects the information. An “original” of a photograph includes the negative or a print from it.

(e) A “duplicate” means a counterpart produced by a mechanical, photographic, chemical, electronic, or other equivalent process or technique that accurately reproduces the original.

 

2016 NHRE Update Committee Note

The amendments made by supreme court order dated April 20, 2017, effective July 1, 2017, made stylistic changes to the rule.

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Rule 1002. Requirement of the Original

An original writing, recording, or photograph is required in order to prove its content unless these rules or a statute provides otherwise.

 

2016 NHRE Update Committee Note

 

The amendments made by supreme court order dated April 20, 2017, effective July 1, 2017, made stylistic changes to the rule.

|746|8566

Rule 1003. Admissibility of Duplicates

A duplicate is admissible to the same extent as the original unless a genuine question is raised about the original's authenticity or the circumstances make it unfair to admit the duplicate.

 

2016 NHRE Update Committee Note

The amendments made by supreme court order dated April 20, 2017, effective July 1, 2017, made stylistic changes to the rule.

|746|8571

Rule 1004. Admissibility of Other Evidence of Contents

An original is not required and other evidence of the content of a writing, recording, or photograph is admissible if:

(a) all the originals are lost or destroyed, and not by the proponent acting in bad faith;

(b) an original cannot be obtained by any available judicial process;

(c) the party against whom the original would be offered had control of the original; was at that time put on notice, by pleadings or otherwise, that the original would be a subject of proof at the trial or hearing; and fails to produce it at the trial or hearing; or

(d) the writing, recording, or photograph is not closely related to a controlling issue.

 

2016 NHRE Update Committee Note

 

The amendments made by supreme court order dated April 20, 2017, effective July 1, 2017, made stylistic changes to the rule.

|746|8576

Rule 1005. Copies of Public Records to Prove Content

The proponent may use a copy to prove the content of an official record - or of a document that was recorded or filed in a public office as authorized by law - if these conditions are met: the record or document is otherwise admissible; and the copy is certified as correct in accordance with Rule 902(4) or is testified to be correct by a witness who has compared it with the original. If no such copy can be obtained by reasonable diligence, then the proponent may use other evidence to prove the content.

 

2016 NHRE Update Committee Note

The amendments made by supreme court order dated April 20, 2017, effective July 1, 2017, made stylistic changes to the rule.

|746|8581

Rule 1006. Summaries to Prove Content

The proponent may use a summary, chart, or calculation to prove the content of voluminous writings, recordings, or photographs that cannot be conveniently examined in court. The proponent must make the originals or duplicates available for examination or copying, or both, by other parties at a reasonable time and place. And the court may order the proponent to produce them in court.


2016 NHRE Update Committee Note

The amendments made by supreme court order dated April 20, 2017, effective July 1, 2017, made stylistic changes to the rule.

|746|8586

Rule 1007. Testimony or Statement of a Party to Prove Content

The proponent may prove the content of a writing, recording, or photograph by the testimony, deposition or written statement of the party against whom the evidence is offered. The proponent need not account for the original.
2016 NHRE Update Committee Note

The amendments made by supreme court order dated April 20, 2017, effective July 1, 2017, made stylistic changes to the rule.

|746|8591

Rule 1008. Functions of the Court and Jury

Ordinarily, the court determines whether the proponent has fulfilled the factual conditions for admitting other evidence of the content of a writing, recording, or photograph under Rule 1004 or 1005. But in a jury trial, the jury determines - in accordance with Rule 104(b) - any issue about whether:

(a) an asserted writing, recording, or photograph ever existed;

(b) another one produced at the trial or hearing is the original; or

(c) other evidence of content accurately reflects the content.

 

2016 NHRE Update Committee Note

 

The amendments made by supreme court order dated April 20, 2017, effective July 1, 2017, made stylistic changes to the rule.

|746|8596

Rule 1101. Applicability of Rules

Ordinarily, the court determines whether the proponent has fulfilled the factual conditions for admitting other evidence of the content of a writing, recording, or photograph under Rule 1004 or 1005. But in a jury trial, the jury determines - in accordance with Rule 104(b) - any issue about whether:

(a) an asserted writing, recording, or photograph ever existed;

(b) another one produced at the trial or hearing is the original; or

(c) other evidence of content accurately reflects the content.

 

2016 NHRE Update Committee Note

 

The amendments made by supreme court order dated April 20, 2017, effective July 1, 2017, made stylistic changes to the rule.(a) Courts. These rules apply to the proceedings in the district and probate divisions of the circuit court, the superior court, and the supreme court.

(b) Proceedings Generally. These rules apply generally to all civil and criminal proceedings unless otherwise provided by the constitution or statutes of the State of New Hampshire or these rules.

(c) Rule of Privilege. The rule with respect to privileges applies at all stages of all actions, cases, and proceedings.

(d) Rules Inapplicable. The rules (other than with respect to privileges) do not apply in the following situations:

(1) Preliminary Questions of Fact. The determination of questions of fact preliminary to admissibility of evidence when the issue is to be determined by the court under Rule 104.

        (2) Grand Jury. Proceedings before grand juries.

        (3) Miscellaneous Proceedings. Proceedings for extradition or rendition; preliminary examinations in criminal cases; juvenile certification proceedings under RSA 169-B:24; sentencing, or granting or revoking probation; issuance of warrants for arrest, criminal summonses, and search warrants; proceedings with respect to release on bail or otherwise; contempt proceedings in which the court may act summarily; proceedings with respect to parole revocation or probation violations; recommittal hearings; domestic relations cases within the jurisdiction of the Family Division of the Circuit Court; civil domestic violence and stalking proceedings.
 

2016 NHRE Update Committee Note

 

A technical change has been made to New Hampshire Rule of Evidence 1101 by supreme court order dated April 20, 2017, effective July 1,2017. No change was made as the result of the restyling of the Federal Rules of Evidence. The rule is a New Hampshire specific rule on the applicability of the New Hampshire rules and is still germane.

|751|8601

Rule 1103. Title

These rules may be known and cited as the New Hampshire Rules of Evidence.

 

2016 NHRE Update Committee Note

No change has been made to New Hampshire Rule of Evidence 1103 by supreme court order dated April 20, 2017, effective July 1, 2017, because the rule is a New Hampshire specific rule on the name of the New Hampshire Rules and is still germane.

|751|8611