Opinion of the Justices

• Decision Date: 24 January 1997
• Docket Number: No. 96-280,96-280
• Citation: 688 A.2d 1006,141 N.H. 562
• Parties: OPINION OF THE JUSTICES (Prior Sexual Assault Evidence). Request of the Senate
• Court: New Hampshire Supreme Court

Page 1006

688 A.2d 1006

141 N.H. 562

OPINION OF THE JUSTICES (Prior Sexual Assault Evidence).

Request of the Senate No. 96-280.

Supreme Court of New Hampshire.

Jan. 24, 1997.

Jeffrey R. Howard, Attorney General (Cynthia L. White, Assistant Attorney General, on the memorandum), filed a memorandum in support of negative answers to the questions presented.

James E. Duggan, Chief Appellate Defender, Concord, filed a memorandum in support of affirmative answers to the questions presented.

Douglas & Douglas, Concord (Charles G. Douglas, III on the memorandum), filed a memorandum on behalf of the New Hampshire House Committee on Corrections and Criminal Justice in support of negative answers to the questions presented.

Charles R. Johnson, Claremont, filed a memorandum in support of negative answers to the questions presented.

Hank Amsden, Concord, filed a memorandum in support of a negative answer to question two.

The following request of the senate for an opinion of the justices was adopted on April 18, 1996, and filed with the supreme court on April 26, 1996:

"Whereas, there is pending in the senate, HB 1549, 'An act relative to the admissibility of a prior sexual assault into evidence in certain prosecutions' as amended by the house; and

"Whereas, the senate has adopted an amendment to HB 1549 (document # 5798L); and

"Whereas, RSA 632-A:6 as proposed by HB 1549, as amended, would, in criminal prosecutions for offenses set forth in RSA 632-A, for incest and endangering the welfare of a child or incompetent in violation of RSA 639, and for attempts and conspiracies to commit those crimes, and in civil suits for sexual assault, establish a rebuttable presumption that evidence of any other sexual assault committed by the defendant is admissible and may be considered for any relevant purpose other than showing the defendant's character; and

"Whereas, RSA 632-A:6 as proposed by HB 1549, as amended, would, in cases where there is evidence of other sexual assaults by the defendant against the same victim, establish a rebuttable presumption that such evidence is admissible to show the defendant's motive or intent, the [context] of the assault in question, and the relationship of the parties; and

"Whereas, RSA 632-A:6 as proposed by HB 1549, as amended, would, in cases where there is evidence of other sexual assaults by the defendant against different victims, establish a rebuttable presumption that such evidence is admissible to show the defendant's motive and intent; and

"Whereas, RSA 632-A:6 as proposed by HB 1549 as amended would prohibit the exclusion of the evidence unless the trial court finds that the probative value of such evidence is substantially outweighed by the danger of unfair prejudice to the defendant; and

"Whereas, doubt has arisen as to the constitutionality of the provisions of said bill as amended; and "Whereas, it is important that the question of the constitutionality of said provisions should be settled in advance of its enactment; now, therefore, be it

"Resolved by the Senate;

"That the Justices of the Supreme Court be respectfully requested to give their opinion on the following questions of law:

1. Would enactment of HB 1549, as amended, result in encroachment by the legislative branch of the state government upon the constitutional function of the judicial branch in violation of Part I, Article 37 of the New Hampshire Constitution?

2. Would enactment of HB 1549, as amended, violate Part 2, Article 73-a of the New Hampshire Constitution which gives the chief justice of the supreme court the authority to make rules governing the practice and procedure to be followed in all courts?

3. Would any other provision of the New Hampshire Constitution be violated by the enactment of HB 1549, as amended?

"That the clerk of the senate transmit copies of this resolution and HB 1549, as amended, to the Justices of the New Hampshire Supreme Court."

On June 5, 1996, this court received an amended request from the senate substituting different questions of law. The following resolution SR 6, as amended, requesting an opinion of the justices, was adopted by the senate on May 31, 1996, and filed with the supreme court on June 5, 1996:

"Whereas, the senate, on April 18, 1996, adopted Senate Resolution 3 requesting an opinion of the justices concerning the constitutionality of HB 1549 and, having reconsidered the questions of law posed in that resolution, has found it advisable to substitute different questions of law; and

"Whereas, there is pending in the senate, HB 1549, 'An Act relative to the admissibility of a prior sexual assault into evidence in certain prosecutions' as amended by the house; and

"Whereas, the senate has adopted an amendment to HB 1549 (document # 5798L); and

"Whereas, RSA 632-A:6 as proposed by HB 1549, as amended, would, in criminal prosecutions for offenses set forth in RSA 632-A, for incest and endangering the welfare of a child or incompetent in violation of RSA 639, and for attempts and conspiracies to commit those crimes, and in civil suits for sexual assault, establish a rebuttable presumption that evidence of any other sexual assault committed by the defendant is admissible and may be considered for any relevant purpose other than showing the defendant's character; and

"Whereas, RSA 632-A:6 as proposed by HB 1549, as amended, would, in cases where there is evidence of other sexual assaults by the defendant against the same victim, establish a rebuttable presumption that such evidence is admissible to show the defendant's motive or intent, the context of the assault in question, and the relationship of the parties; and

"Whereas, RSA 632-A:6 as proposed by HB 1549, as amended, would, in cases where there is evidence of other sexual assaults by the defendant against different victims, establish a rebuttable presumption that such evidence is admissible to show the defendant's motive and intent; and

"Whereas, RSA 632-A:6 as proposed by HB 1549 as amended would prohibit the exclusion of the evidence unless the trial court finds that the probative value of such evidence is substantially outweighed by the danger of unfair prejudice to the defendant; and

"Whereas, numerous statutes already in effect address the admissibility of various types of evidence in judicial proceedings; now, therefore, be it

"Resolved by the Senate;

"That the questions of law submitted in Senate Resolution 3 adopted by the senate April 18, 1996, be withdrawn from the Justices of the Supreme Court; and

"That the Justices of the Supreme Court be respectfully requested to give their opinion on the following questions of law;

1. Would enactment of HB 1549, as amended, violate Part I, Article 37 of the New Hampshire Constitution?

2. Would enactment of HB 1549, as amended, violate Part II, Article 73-a of the New Hampshire Constitution?

"That the clerk of the senate transmit copies of this resolution and HB 1549, as amended, to the Justices of the New Hampshire Supreme Court."

The following response is respectfully returned:

To the Honorable Senate:

The undersigned justices of the supreme court now submit the following reply to your amended opinion request of May 31, 1996. Following our receipt of your initial resolution, we invited interested parties to file memoranda with the court on or before June 17, 1996. That deadline was extended to June 28, 1996, following our receipt of your amended resolution.

HB 1549 (the bill), as amended, proposes to amend RSA chapter 632-A (1996 & Supp.1996) by inserting after paragraph IV in section 6 a new paragraph to read:

V. (a) In criminal prosecutions for offenses set forth in RSA 632-A, for incest and endangering the welfare of a child or incompetent in violation of RSA 639, and for attempts and conspiracies to commit those crimes, and in civil suits for sexual assault, there shall be a rebuttable presumption that evidence of any other sexual assault committed by the defendant is admissible and may be considered for any relevant purpose other than showing the defendant's character. In cases where there is evidence of other sexual assaults by the defendant against the same victim, there shall be a rebuttable presumption that such evidence is admissible to show the defendant's motive, intent, the context of the assault in question, and the relationship of the parties. In cases where there is evidence of other sexual assaults by the defendant against different victims, there shall be [a] rebuttable presumption that such evidence is admissible to show the defendant's motive and intent. The evidence shall not be excluded unless the trial court finds that the probative value of such evidence is substantially outweighed by the danger of unfair prejudice to the defendant.

(b) As used in subparagraph (a), the term "motive" includes a desire to engage in sexual activity with a certain victim or type of victim, or a desire to control or harm others through sexual assault.

(c) The purposes for which evidence of other sexual assaults may be admitted are not limited to those identified in subparagraph (a). Such evidence continues to be admissible for any relevant purpose except character. The fact that it may also be relevant to character does not render it inadmissible if it is relevant for some other purpose.

The bill has a statement of purpose which reads as follows:

I. The public has a strong interest in assuring that persons who commit violent sexual assaults, like those who commit other crimes, are brought to justice. However, sexual assaults present unique problems of proof. They are often committed in the absence of eyewitnesses, and there is little or no corroborating physical evidence, particularly if the victim delays reporting of the assault. The prosecution frequently rests exclusively on the victim's testimony, and the jury's decision is dependent on its assessment of the relative credibility of the victim and the defendant. The...