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Court's denial of police record review raises broader question
Since the New Hampshire Sunday News reported last fall that secret lists contained the names of more than 60 law enforcement officers across the state who had been disciplined for matters that could hinder their ability to testify truthfully, the newspaper has reported two cases in which such officers did, in fact, testify without disclosing as required. In a third case, the police issue was disclosed to an attorney, but not to the defendant.
"The new statute appears to give a prosecutor the affirmative obligation to examine personnel files of any officers who may testify to determine whether it contains exculpatory evidence," Moir said.
Assistant Merrimack County Attorney Joseph Cherniske, who is prosecuting Bailey, disagreed.
The Attorney General's Office viewed the law differently from defense attorneys after learning about it last November, but recently said the whole police personnel disclosure issue is under review.
Even though Smukler's ruling won't have the weight of a state Supreme Court decision, it will set the tone at the trial level, at least for a time, Temple said.
Prosecutors across the state have continued to follow a 2004 memo by then-Attorney General Peter Heed, in which county attorneys keep a confidential list of officers with potential credibility issues detailed in their personnel files, then ask a judge to determine whether the personnel information should be turned over to the defense, if that officer is to testify.
County attorneys rely on information provided by police chiefs on which officers should be placed on confidential lists for possible disclosure.
Should be public access
Moir believes the lists should be public so ordinary people and defense attorneys will know which police officers have been disciplined for integrity matters. Heed's memo said those could include officers who have lied under oath, been convicted of fraud or theft, or other ways they have been shown to be dishonest.
Jane Young, head of the Attorney General's Criminal Bureau, wouldn't discuss the ongoing case, but did indicate disclosure protocols under the new law are being reviewed.
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