State v. Farrow

• Decision Date: 07 December 1976
• Docket Number: No. 7652,7652
• Citation: State v. Farrow, 116 N.H. 731, 366 A.2d 1177 (N.H. 1976)
• Parties: STATE of New Hampshire v. Gary FARROW.
• Court: New Hampshire Supreme Court

Page 1177

366 A.2d 1177

116 N.H. 731

STATE of New Hampshire v. Gary FARROW.

No. 7652.

Supreme Court of New Hampshire.

Dec. 7, 1976.

David H. Souter, Atty. Gen., Edward A. Haffer, Asst. Atty. Gen., Peter W. Heed, Anne E. Cagwin, Deborah J. Cooper and David W. Marshall, Concord, for the State.

Ernest T. Smith, III and Russell F. Hilliard, Concord, for defendant.

Carroll F. Jones, Concord, guardian ad litem by brief and orally for certain witnesses.

Gallagher, Callahan & Gartrell and Edward E. Shumaker, III, Concord, for the Central New Hampshire Community Mental Health Services Inc. intervenor.

Cleveland, Waters & Bass, Concord (Warren E. Waters, Concord, orally), for Concord Hospital, intervenor.

Sulloway, Hollis, Godfrey & Soden and John C. Ransmeier, Concord, for New Hampshire Medical Association as amicus curiae.

PER CURIAM.

The Trial Court (Johnson, J.), without objection by the defense or the prosecution, suspended the trial of this murder case and transferred certain questions to this court. These questions primarily raise the issue of the extent to which certain doctor-psychologist patient privilege of certain witnesses for the State must give way to the defendant's sixth amendment right to confrontation for the purpose of cross-examination and impeachment. Briefs were submitted and oral arguments were heard this date. Due to the exigency of the situation we are rendering the following opinion forthwith.

It is a question for the trial court to determine whether a particular witness is competent to testify (State v. Keyes, 114 N.H. 487, 322 A.2d 615 (1974)) and whether that witness is competent to waive the statutory privilege created by RSA 329:26 (Supp) (1975) and RSA 330-A:19.

These privileges are confined to confidential relations and communications between physicians, surgeons and psychologists and their patients. If a witness, found competent to testify by the trial court, is either found incompetent to waive his privileges under the aforementioned statutes, or if competent refuses to do so, we are then faced with the question whether the defendant's sixth amendment right to confrontation entitles him to have access to and to use information which falls within the scope of these privileges for the purpose of cross-examination and impeachment.

Defendant and the State rely upon Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974) where it was held that, in the circumstances of that case, the defendant was entitled to...