New Hampshire's rule on evidence law turns on a feature the national template does not capture: New Hampshire evidence practice is organized under the New Hampshire Rules of Evidence. Relevance starts at N.H. R. Evid. 401, 403; hearsay starts at N.H. R. Evid. 801, 802. The controlling authority is New Hampshire Rules of Evidence. Authenticity is a separate fight under N.H. R. Evid. 901, 902. Depositions at trial: N.H. R. Civ. P. 30 and 32 govern civil depositions and trial use. N.H. R. Crim. P. 15 controls criminal discovery; deposition testimony at trial requires N.H. R. Evid. 804(b)(1) when unavailability is shown.
Contents
- General standards of admissibility
- Character evidence
- Hearsay: start with the definition
- Party admissions
- Business records
- Important hearsay exceptions that do not require unavailability
- Declarant unavailable
- Dying declarations
- Medical diagnosis or treatment statements
- Use of depositions at trial
- Authenticity: why it matters and how to prove it
- Practice checklist
- Frequently asked questions
Worked example under New Hampshire law
The illustration below uses only rules already stated for New Hampshire. It is a research hypothetical, not a prediction of what a court will do.
A lawyer in New Hampshire wants to offer a medical record, a party email, and a statement the declarant made while believing death was imminent.
- Clear relevance and unfair prejudice under N.H. R. Evid. 401, 403.
- If the email is the opposing party's, test N.H. R. Evid. 801(d)(2) before the hearsay definition in N.H. R. Evid. 801, 802.
- For the medical record, lay the business-records foundation in N.H. R. Evid. 803(6) and the treatment purpose in N.H. R. Evid. 803(4).
- For the deathbed statement, meet N.H. R. Evid. 804(b)(2), then authenticate every exhibit under N.H. R. Evid. 901, 902.
New Hampshire keeps hearsay, character, and authenticity on different rules inside the New Hampshire Rules of Evidence. Winning one does not win the others.
General standards of admissibility
New Hampshire starts every evidence dispute with relevance and unfair prejudice. Under N.H. R. Evid. 401, 403, evidence is relevant when it has any tendency to make a fact of consequence more or less probable, and relevant evidence is still excluded when its probative value is substantially outweighed by unfair prejudice, confusion, or waste of time. Preliminary questions of admissibility are for the court; conditional relevance and limited-purpose instructions keep otherwise-usable proof from becoming a Trojan horse for propensity or truth-of-the-matter use.
New Hampshire courts cite federal advisory-committee notes. Check N.H. R. Evid. 617 and state privilege statutes for localized rules.
Practice tip: articulate the theory of relevance in one sentence before citing the exception. Lawyers who lead with "it's a business record" without explaining what fact the record proves often lose the 403 balance even when the hearsay foundation is clean.
Character evidence
Character evidence in New Hampshire is governed by N.H. R. Evid. 404, 405. The default rule is familiar: evidence of a person's character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait. The same body of law then carves out the classic exceptions — essential-element character, accused-opens-the-door reputation or opinion, and other-acts evidence offered for a non-propensity purpose such as motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake.
Other-acts notice, 403 balancing, and limiting instructions do most of the real work. In criminal cases, prosecutors who dump prior misconduct without a specific non-propensity theory invite reversal; defense counsel who open the door to good-character testimony without anticipating rebuttal create the very propensity inference the rules were designed to police.
New Hampshire character-evidence opinions
The State of New Hampshire v. Carl H. Graf
The State of New Hampshire v. Carl H. Graf, 143 N.H. 294 (1999)
…l Constitutions when it precluded him from: (1) introducing character evidence that he was not the type of person who would sexually assault children or take advantage of them; and (2) introducing privileged information during the cross-examination of the State’s expert witness regarding the victim’s sexual history and punishments the victim may have received. The defendant als…
On character evidence, The State of New Hampshire v. Carl H. Graf speaks to the New Hampshire dispute in this passage: "State’s expert witness regarding the victim’s sexual history and punishments the victim may have received." The surrounding opinion shows how the court applied that language to the record.
The State of New Hampshire v. Christopher Beltran — Dalianis, J., concurring
The State of New Hampshire v. Christopher Beltran — Dalianis, J., concurring, 153 N.H. 643 (2006)
…f other crimes, wrongs or acts is typically inadmissible as character evidence, but that it may be admissible for other purposes, such as “proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” N.H. R. Ev. 404(b). As the majority notes, there is a three-part test for admissibility under Rule 404(b): (1) the evidence mus…
Practitioners open The State of New Hampshire v. Christopher Beltran — Dalianis, J., concurring when New Hampshire character evidence turns on the distinction in this sentence: "f other crimes, wrongs or acts is typically inadmissible as character evidence, but that it may be admissible for other purposes, such as “proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” N.H. R. Ev. 404(b). As the" Do not lift it out of the facts the court was deciding.
The State of New Hampshire v. Cory Furgal
The State of New Hampshire v. Cory Furgal, 164 N.H. 430 (2012)
…dence of the victim’s prior bad acts would be impermissible character evidence if its only relevance was to the victim’s behavior at the time of the shooting.”). Because we conclude that the excluded evidence was not relevant and, therefore, inadmissible, we need not address the defendant’s arguments regarding the trial court’s use of the “clear proof’ standard. Finally, we dee…
New Hampshire opinions such as The State of New Hampshire v. Cory Furgal are cited where character evidence is disputed. The court stated: "Because we conclude that the excluded evidence was not relevant and, therefore, inadmissible, we need not address the defendant’s arguments regarding the trial court’s use of the “clear proof’ standard." That is the language to brief; the rest of the decision supplies the procedural posture.
The State of New Hampshire v. Robert Demeritt
The State of New Hampshire v. Robert Demeritt, 148 N.H. 435 (2002)
…v. Newell, 141 N.H. 199, 201 (1996). The method of proving character evidence admissible under Rule 404(a)(2) is governed by New Hampshire Rule of Evidence 405(a). Under Rule 405(a), proof of the victim’s character may be made “by testimony as to reputation or by testimony in the form of an opinion.” On cross-examination, inquiry into relevant specific instances of conduct is…
Practitioners open The State of New Hampshire v. Robert Demeritt when New Hampshire character evidence turns on the distinction in this sentence: "Newell, 141 N.H. 199, 201 (1996). The method of proving character evidence admissible under Rule 404(a)(2) is governed by New Hampshire Rule of Evidence 405(a)." Do not lift it out of the facts the court was deciding.
The State of New Hampshire v. Roderick Davidson
The State of New Hampshire v. Roderick Davidson, 163 N.H. 462 (2012)
…e Rule of Evidence 404(b) (regarding the inadmissibility of character evidence). The defendant’s first motion in limine sought to exclude testimony tending to suggest that he was “controlling” and set rigid behavioral rules for the complainant, the admission of which, he argued, violated New Hampshire Rules of Evidence 401,402,403,404(a), 404(b), and 608, as well as his state a…
Practitioners open The State of New Hampshire v. Roderick Davidson when New Hampshire character evidence turns on the distinction in this sentence: "Rule of Evidence 404(b) (regarding the inadmissibility of character evidence)." Do not lift it out of the facts the court was deciding.
The State of New Hampshire v. John Sullivan
The State of New Hampshire v. John Sullivan, 131 N.H. 209 (1988)
…rial, which argued that the State had improperly introduced character evidence that Sullivan was violent and a misogynist, and his motion to dismiss the first degree murder charge, which argued that there was insufficient evidence of premeditation and deliberation to support that charge. Sullivan also argues that New Hampshire’s insanity rule denies due process because it lacks…
On character evidence, The State of New Hampshire v. John Sullivan speaks to the New Hampshire dispute in this passage: "State had improperly introduced character evidence that Sullivan was violent and a misogynist, and his motion to dismiss the first degree murder charge, which argued that there was insufficient evidence of premeditation and deliberation to support that charge." The surrounding opinion shows how the court applied that language to the record.
The State of New Hampshire v. Earl Hastings
The State of New Hampshire v. Earl Hastings, 137 N.H. 601 (1993)
…ir. 1989) (holding subsequent act evidence inadmissible bad character evidence, while “not implying] that all subsequent act evidence is inadmissible under Rule 404(b)”). The evidence at issue here is the defendant’s subsequent possession of an automatic rifle and forty-nine rounds of ammunition. The State argues only that this evidence was relevant to prove the defendant’s kno…
The State of New Hampshire v. Earl Hastings is worth reading on New Hampshire character evidence because the court put the point in its own words: "Rule 404(b)”). The evidence at issue here is the defendant’s subsequent possession of an automatic rifle and forty-nine rounds of ammunition." Use that passage as the starting point, then read the facts that precede it.
The State of New Hampshire v. Francis Cavaliere
The State of New Hampshire v. Francis Cavaliere, 140 N.H. 108 (1995)
…determination that the sexual profile evidence was relevant character evidence under Rule 404(a), we begin our analysis under Rule 702. We note that the trial court accepted the parties’ stipulation to the use of the Daubert standard, rather than the Frye test. See Daubert, 113 S. Ct. at 2795; Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). Accordingly, we need not decide…
The State of New Hampshire v. Francis Cavaliere is worth reading on New Hampshire character evidence because the court put the point in its own words: "Rule 404(a), we begin our analysis under Rule 702. We note that the trial court accepted the parties’ stipulation to the use of the Daubert standard, rather than the Frye test. See Daubert, 113 S. Ct. at 2795; Frye v. United States, 293 F. 1013 (D.C. Cir. 1923)." Use that passage as the starting point, then read the facts that precede it.
Hearsay: start with the definition
Most hearsay objections in New Hampshire are won or lost on the definition, not on an exception. Under N.H. R. Evid. 801, 802, hearsay is an out-of-court statement offered to prove the truth of the matter asserted. Non-hearsay purposes — verbal acts, effect on the listener, notice, circumstantial evidence of state of mind, and impeachment — remain available when the proponent can articulate them without asking the jury to believe the declarant.
Layered hearsay (hearsay within hearsay) requires an exception or exclusion for each layer. Machine-generated data and non-assertive conduct sit outside the hearsay definition in FRE-aligned jurisdictions, but they still need authenticity and, often, expert or business-records foundations.
New Hampshire hearsay opinions
Robert H. Simpson, Jr. v. Christopher Calivas
Robert H. Simpson, Jr. v. Christopher Calivas, 139 N.H. 1 (1994)
…probate inventory under the public records exception to the hearsay rule, which, in civil actions, authorizes the admission of “[rjecords, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth . . . factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other…
On hearsay, Robert H. Simpson, Jr. v. Christopher Calivas speaks to the New Hampshire dispute in this passage: "probate inventory under the public records exception to the hearsay rule, which, in civil actions, authorizes the admission of “[rjecords, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth . . . factual findings resulting from an" The surrounding opinion shows how the court applied that language to the record.
In re Estate of J. Douglas King
In re Estate of J. Douglas King, 149 N.H. 226 (2003)
…of revocation, and that the court relied upon inadmissible hearsay in finding otherwise. We reverse and remand. The decedent, J. Douglas King, executed a will in 1994 that left his estate to his second wife of fifteen years, Laurel King, with whom he had two minor children. Douglas also had three adult children (Rebecca King Felmet, Rachel King and Jason King) from a previous…
In re Estate of J. Douglas King is worth reading on New Hampshire hearsay because the court put the point in its own words: "We reverse and remand. The decedent, J. Douglas King, executed a will in 1994 that left his estate to his second wife of fifteen years, Laurel King, with whom he had two minor children." Use that passage as the starting point, then read the facts that precede it.
State of New Hampshire v. Peter R. Ruelke
State of New Hampshire v. Peter R. Ruelke, 116 N.H. 692 (1976)
…denied subject to his exceptions. During the trial certain hearsay evidence was introduced subject to his exceptions. All questions of law raised by his exceptions were transferred by King, J. The search warrant in issue was obtained as a result of an affidavit based on information obtained from a Dana Lawrence whose Volkswagon bus was stopped and searched by an Officer Byrnes…
New Hampshire opinions such as State of New Hampshire v. Peter R. Ruelke are cited where hearsay is disputed. The court stated: "During the trial certain hearsay evidence was introduced subject to his exceptions. All questions of law raised by his exceptions were transferred by King, J." That is the language to brief; the rest of the decision supplies the procedural posture.
Guy S. Simpkins v. Robert M. Snow, Jr. & a.
Guy S. Simpkins v. Robert M. Snow, Jr. & a., 139 N.H. 735 (1995)
…objected to the testimony arguing that it was inadmissible hearsay. The court agreed but admitted the testimony for the limited purposes of showing damages and publication. It is this limitation that forms the basis of the plaintiff’s first issue on appeal. “Hearsay is an out-of-court statement offered in evidence to prove the truth of the matter asserted in the statement.” St…
Practitioners open Guy S. Simpkins v. Robert M. Snow, Jr. & a. when New Hampshire hearsay turns on the distinction in this sentence: "The court agreed but admitted the testimony for the limited purposes of showing damages and publication. It is this limitation that forms the basis of the plaintiff’s first issue on appeal." Do not lift it out of the facts the court was deciding.
The State of New Hampshire v. George Woods
The State of New Hampshire v. George Woods, 130 N.H. 721 (1988)
…ry focus of this appeal is the admissibility of the child’s hearsay statements presented through the testimony of her mother, brother, and physician. We reverse. On the afternoon of June 4, 1986, the alleged victim went to the defendant’s home after school, as she had done nearly every day with her brothers, cousins, and other neighborhood children. The defendant was home early…
New Hampshire opinions such as The State of New Hampshire v. George Woods are cited where hearsay is disputed. The court stated: "We reverse. On the afternoon of June 4, 1986, the alleged victim went to the defendant’s home after school, as she had done nearly every day with her brothers, cousins, and other neighborhood children." That is the language to brief; the rest of the decision supplies the procedural posture.
The State of New Hampshire v. Walter Beede
The State of New Hampshire v. Walter Beede, 156 N.H. 102 (2007)
…us bank records under the business records exception to the hearsay rule, N.H. R. Ev. 803(6); and (2) the trial court erred in sentencing him to a probation term exceeding that permitted by statute for his misdemeanor convictions, see RSA 651:2, V(a) (2007). We affirm. *104 I. Background The jury could have found the following. In 1994, Jay Howland Enterprises (JHE), which was…
On hearsay, The State of New Hampshire v. Walter Beede speaks to the New Hampshire dispute in this passage: "N.H. R. Ev. 803(6); and (2) the trial court erred in sentencing him to a probation term exceeding that permitted by statute for his misdemeanor convictions, see RSA 651:2, V(a) (2007). We affirm. *104 I. Background The jury could have found the following." The surrounding opinion shows how the court applied that language to the record.
The State of New Hampshire v. Gary Sampson
The State of New Hampshire v. Gary Sampson, 132 N.H. 343 (1989)
…his trial a hotel receipt which he asserts was inadmissible hearsay. We affirm. During the night of April 20-21, 1987, an intruder entered “Dave’s Texaco” service station in Rochester, pried the metal backing from the office safe, drilled into the safe’s interior, and removed approximately $15,000. One night that same month, the defendant, Gary Sampson, visited the apartment of…
The State of New Hampshire v. Gary Sampson is worth reading on New Hampshire hearsay because the court put the point in its own words: "We affirm. During the night of April 20-21, 1987, an intruder entered “Dave’s Texaco” service station in Rochester, pried the metal backing from the office safe, drilled into the safe’s interior, and removed approximately $15,000." Use that passage as the starting point, then read the facts that precede it.
The State of New Hampshire v. Kevin Favreau
The State of New Hampshire v. Kevin Favreau, 134 N.H. 336 (1991)
…s identify the telephone caller as “Kevin” was inadmissible hearsay. The State maintains that the statement was properly *339admitted as non-hearsay, either as a non-assertive statement or as the statement of a co-conspirator. The resolution of these claims decides the case. Hearsay is an out-of-court statement offered in evidence to prove the truth of the matter asserted in th…
Practitioners open The State of New Hampshire v. Kevin Favreau when New Hampshire hearsay turns on the distinction in this sentence: "Kevin” was inadmissible hearsay. The State maintains that the statement was properly *339admitted as non-hearsay, either as a non-assertive statement or as the statement of a co-conspirator. The resolution of these claims decides the case." Do not lift it out of the facts the court was deciding.
Party admissions
Statements of an opposing party are among the most important routes around the hearsay bar. New Hampshire treats them under N.H. R. Evid. 801(d)(2). Nothing about the statement need be against interest, contemporaneous, or based on personal knowledge — the theory is adversarial, not reliability-based. A party cannot complain that his own words are unreliable when offered against him.
Scope questions dominate practice: the party's own statement; adopted statements (including silence in circumstances where a reasonable person would deny); statements by authorized speakers; agent or employee statements on matters within the scope of the relationship; and, in criminal conspiracy cases, coconspirator statements during and in furtherance of the conspiracy. A defendant generally cannot introduce his own exculpatory out-of-court statement as a "party admission" against himself — the rule runs one way.
New Hampshire party-admission opinions
John J. Kelleher, Jr. v. Marvin Lumber and Cedar Company
John J. Kelleher, Jr. v. Marvin Lumber and Cedar Company, 152 N.H. 813 (2005)
…ures into which Marvin’s products were incorporated.” These admissions and statements provided sufficient evidence to satisfy the unreasonably dangerous element of this strict liability claim. B. Admissibility of Evidence The defendant asserts that the court erred in admitting the aforementioned statements in the first trial because they are irrelevant, cumulative and highly pr…
New Hampshire opinions such as John J. Kelleher, Jr. v. Marvin Lumber and Cedar Company are cited where party admissions is disputed. The court stated: "Marvin’s products were incorporated.” These admissions and statements provided sufficient evidence to satisfy the unreasonably dangerous element of this strict liability claim. B." That is the language to brief; the rest of the decision supplies the procedural posture.
The State of New Hampshire v. George Brum
The State of New Hampshire v. George Brum, 155 N.H. 408 (2007)
…ement to the witness was not hearsay because it was a party admission. See N.H. R. Ev. 801(d)(2). The trial court excluded it as hearsay. A The defendant first argues that the trial court erred when it precluded him from cross-examining the victim about “the fact that she made a factually accurate report of the 1996 incident to the Concord Police for the purpose of commencing a…
New Hampshire opinions such as The State of New Hampshire v. George Brum are cited where party admissions is disputed. The court stated: "See N.H. R. Ev. 801(d)(2). The trial court excluded it as hearsay." That is the language to brief; the rest of the decision supplies the procedural posture.
Barbara Simpson v. Wal-Mart Stores, Inc. d/b/a Sam's Club
Barbara Simpson v. Wal-Mart Stores, Inc. d/b/a Sam's Club, 144 N.H. 571 (1999)
…letter into evidence. At trial, defendant’s counsel sought admission of a letter dated December 10, 1996, from Marc D. Sopher, M.D., to plaintiff’s counsel, and requested that he be allowed to cross-examine the plaintiff’s medical expert, Dennis B. Hammond, M.D., on its contents. The letter contained an out-of-court statement by Dr. Sopher that it was not clear to him that the…
Barbara Simpson v. Wal-Mart Stores, Inc. d/b/a Sam's Club is worth reading on New Hampshire party admissions because the court put the point in its own words: "At trial, defendant’s counsel sought admission of a letter dated December 10, 1996, from Marc D. Sopher, M.D., to plaintiff’s counsel, and requested that he be allowed to cross-examine the plaintiff’s medical expert, Dennis B. Hammond, M.D., on its contents." Use that passage as the starting point, then read the facts that precede it.
The State of New Hampshire v. Nicole Belonga
The State of New Hampshire v. Nicole Belonga, 163 N.H. 343 (2012)
…ents to the detectives were involuntary and, thus, that the admission of those statements at trial would violate her constitutional rights. After a hearing, the court denied her motion. Her statements were admitted at trial through the videotape and the testimony of the detectives. II On appeal, the defendant argues that her statements were involuntary and that the admission of…
The State of New Hampshire v. Nicole Belonga is worth reading on New Hampshire party admissions because the court put the point in its own words: "After a hearing, the court denied her motion. Her statements were admitted at trial through the videotape and the testimony of the detectives." Use that passage as the starting point, then read the facts that precede it.
The State of New Hampshire v. Ashley Hayward
The State of New Hampshire v. Ashley Hayward, 166 N.H. 575 (2014)
…atements must be part of the same conversation; and second, admission of only a portion would mislead the jury.” Id. (quotation omitted). The rule does not render evidence automatically admissible, though “otherwise inadmissible evidence may be admitted to prevent a party from gaining a misleading advantage.” State v. Warren, 143 N.H. 633, 636 (1999). 6 Here, the first requirem…
On party admissions, The State of New Hampshire v. Ashley Hayward speaks to the New Hampshire dispute in this passage: "Id. (quotation omitted). The rule does not render evidence automatically admissible, though “otherwise inadmissible evidence may be admitted to prevent a party from gaining a misleading advantage.” State v. Warren, 143 N.H. 633, 636 (1999)." The surrounding opinion shows how the court applied that language to the record.
The State of New Hampshire v. Walter Beede
The State of New Hampshire v. Walter Beede, 156 N.H. 102 (2007)
…inadmissible double hearsay. He contends that the records’ admission prejudiced his case because the prosecutor relied upon them heavily in his closing argument. We review the trial court’s decisions on the admissibility of evidence under an unsustainable exercise of discretion standard. State v. Ainsworth, 151 N.H. 691, 694 (2005). Therefore, the defendant must demonstrate th…
Practitioners open The State of New Hampshire v. Walter Beede when New Hampshire party admissions turns on the distinction in this sentence: "He contends that the records’ admission prejudiced his case because the prosecutor relied upon them heavily in his closing argument. We review the trial court’s decisions on the admissibility of evidence under an unsustainable exercise of discretion standard. State v." Do not lift it out of the facts the court was deciding.
Richard G. Currier v. Grossman’s of New Hampshire, Inc.
Richard G. Currier v. Grossman’s of New Hampshire, Inc., 107 N.H. 159 (1966)
…d. Another contention advanced by the plaintiff is that the admission of the investigating officer’s opinion of the cause of the accident, given by his oral testimony at the trial was error. The qualifications of the witness, who had been a member of the State Police force for some twenty - five years prior to the accident, and who in line of duty had investigated many such occ…
On party admissions, Richard G. Currier v. Grossman’s of New Hampshire, Inc. speaks to the New Hampshire dispute in this passage: "Another contention advanced by the plaintiff is that the admission of the investigating officer’s opinion of the cause of the accident, given by his oral testimony at the trial was error." The surrounding opinion shows how the court applied that language to the record.
Business records
The business-records exception under N.H. R. Evid. 803(6) is the everyday path for medical charts, employment files, bank statements, and maintenance logs. The foundation requires a record made at or near the time by — or from information transmitted by — someone with knowledge; kept in the course of a regularly conducted activity; and made as a regular practice. A custodian or other qualified witness (or a qualifying certification where the jurisdiction allows it) lays the foundation. The opponent may still attack lack of trustworthiness when the source or method of preparation indicates unreliability — litigation-driven reports are the classic failure mode.
Do not confuse authenticity with the business-records exception. You still need to show the exhibit is what you claim it is; the hearsay exception then answers why the out-of-court assertions inside it may be considered for their truth.
New Hampshire business-records opinions
Armand Aubert v. Jean Aubert
Armand Aubert v. Jean Aubert, 129 N.H. 422 (1987)
…e Medical Center were properly admitted into evidence. The “business record” exception to the hearsay rule applicable when this case was tried is found in RSA 521:2 (repealed by Laws 1986, 210:1, IV, eff. Jan. 1, 1987), and provides: “A record of an act, condition or event, shall, in so far as relevant, be competent evidence if the custodian or other qualified witness testifies…
Armand Aubert v. Jean Aubert is worth reading on New Hampshire business records because the court put the point in its own words: "Medical Center were properly admitted into evidence. The “business record” exception to the hearsay rule applicable when this case was tried is found in RSA 521:2 (repealed by Laws 1986, 210:1, IV, eff. Jan." Use that passage as the starting point, then read the facts that precede it.
Cheryl L. Powell v. Catholic Medical Center & a.
Cheryl L. Powell v. Catholic Medical Center & a., 145 N.H. 7 (2000)
…ible hearsay. The trial court admitted the report under the business records exception to the hearsay rule. See N.H. R. EV. 803(6). The defendants argue that the court erred because neither the report’s author, Dr. Lanes, nor a custodian of the record testified at trial. The plaintiff countered at trial that “[witnesses] testified that in the ordinary course of maintaining [som…
Practitioners open Cheryl L. Powell v. Catholic Medical Center & a. when New Hampshire business records turns on the distinction in this sentence: "The trial court admitted the report under the business records exception to the hearsay rule. See N.H. R. EV. 803(6). The defendants argue that the court erred because neither the report’s author, Dr. Lanes, nor a custodian of the record testified at trial." Do not lift it out of the facts the court was deciding.
The State of New Hampshire v. John Brooks
The State of New Hampshire v. John Brooks, 164 N.H. 272 (2012)
…rds, Federal Express records, and Western Union records, as business records under New Hampshire Rule of Evidence 803(6), and authenticated the records through certifications from the records’ custodians pursuant to New Hampshire Rule of Evidence 902(11). The defendant argues that allowing the records to be so authenticated violated his rights under the Sixth Amendment’s Confro…
Practitioners open The State of New Hampshire v. John Brooks when New Hampshire business records turns on the distinction in this sentence: "Federal Express records, and Western Union records, as business records under New Hampshire Rule of Evidence 803(6), and authenticated the records through certifications from the records’ custodians pursuant to New Hampshire Rule of Evidence 902(11)." Do not lift it out of the facts the court was deciding.
The State of New Hampshire v. Brian T. O’Maley — Duggan, J., dissenting
The State of New Hampshire v. Brian T. O’Maley — Duggan, J., dissenting, 156 N.H. 125 (2007)
…rity’s well-reasoned discussion of why efforts to apply the business records exception in the Confrontation Clause context must be rejected as inconsistent with Crawford. Courts applying the business records exception seize upon dicta from Crawford, in which the Court noted that at the time the Framers drafted the Federal Constitution, “[m]ost of the hearsay exceptions covered…
The State of New Hampshire v. Brian T. O’Maley — Duggan, J., dissenting is worth reading on New Hampshire business records because the court put the point in its own words: "Confrontation Clause context must be rejected as inconsistent with Crawford." Use that passage as the starting point, then read the facts that precede it.
The State of New Hampshire v. Rose Marie Wall
The State of New Hampshire v. Rose Marie Wall, 154 N.H. 237 (2006)
…rial, the State introduced the hospital’s test results as a business record. The defendant objected, based upon a lack of a chain of custody, and the court overruled the objection. The defendant also unsuccessfully objected when the State introduced the test results from the State Laboratory. The defendant was found guilty of the charges stated above. On appeal, the defendant a…
The State of New Hampshire v. Rose Marie Wall is worth reading on New Hampshire business records because the court put the point in its own words: "State introduced the hospital’s test results as a business record. The defendant objected, based upon a lack of a chain of custody, and the court overruled the objection." Use that passage as the starting point, then read the facts that precede it.
The State of New Hampshire v. Walter Beede
The State of New Hampshire v. Walter Beede, 156 N.H. 102 (2007)
…al court improperly admitted various bank records under the business records exception to the hearsay rule, N.H. R. Ev. 803(6); and (2) the trial court erred in sentencing him to a probation term exceeding that permitted by statute for his misdemeanor convictions, see RSA 651:2, V(a) (2007). We affirm. *104 I. Background The jury could have found the following. In 1994, Jay How…
Practitioners open The State of New Hampshire v. Walter Beede when New Hampshire business records turns on the distinction in this sentence: "N.H. R. Ev. 803(6); and (2) the trial court erred in sentencing him to a probation term exceeding that permitted by statute for his misdemeanor convictions, see RSA 651:2, V(a) (2007). We affirm. *104 I. Background The jury could have found the following." Do not lift it out of the facts the court was deciding.
The State of New Hampshire v. Gary Sampson
The State of New Hampshire v. Gary Sampson, 132 N.H. 343 (1989)
…ple, the State may have offered the hotel receipt under the business records exception. N.H. R. Ev. 803(6). We note, however, that no claim was made that the receipt was Hildreth’s business record, nor that he was custodian insofar as it may have been the record of any other business entity. See Wallace v. Lakes Region Const. Co., Inc., 124 N.H. 712, 715-16, 474 A.2d 1037, 1039…
On business records, The State of New Hampshire v. Gary Sampson speaks to the New Hampshire dispute in this passage: "State may have offered the hotel receipt under the business records exception. N.H. R. Ev. 803(6)." The surrounding opinion shows how the court applied that language to the record.
Important hearsay exceptions that do not require unavailability
Three present-sense and mental-state exceptions carry most of the remaining traffic in New Hampshire trial practice.
Excited utterance — N.H. R. Evid. 803(2). A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused. Timing is elastic; composure defeats the exception even minutes after the event, while visible distress can preserve it for hours.
Present sense impression — N.H. R. Evid. 803(1). A statement describing or explaining an event or condition made while or immediately after the declarant perceived it. Contemporaneity is strict — seconds and minutes, not hours — and excitement is not required.
Then-existing mental, emotional, or physical condition — N.H. R. Evid. 803(3). Statements of then-existing state of mind (including intent and plan) come in; statements of memory or belief offered to prove the fact remembered generally do not. Intent-to-meet-another-person cases remain the hardest applications.
Declarant unavailable
When the declarant is unavailable under N.H. R. Evid. 804(a), New Hampshire opens a second suite of exceptions. Unavailability typically includes privilege, refusal to testify despite court order, lack of memory, death or then-existing infirmity, and absence despite reasonable efforts to procure attendance. The proponent bears the burden of proving unavailability with specific facts — a bare assertion that the witness "could not be found" is not enough.
Former testimony under N.H. R. Evid. 804(b)(1) is the workhorse once unavailability is shown: testimony given as a witness at a trial, hearing, or lawful deposition, offered against a party who had an opportunity and similar motive to develop it by direct, cross, or redirect. Criminal confrontation analysis runs in parallel and is not satisfied merely because a hearsay exception applies.
Dying declarations
Dying declarations under N.H. R. Evid. 804(b)(2) remain a narrow but decisive exception in homicide and, in many jurisdictions, civil cases involving the cause or circumstances of what the declarant believed to be impending death. The foundational showing is the declarant's belief that death was imminent — not that death in fact followed within any particular time — plus a statement concerning the cause or circumstances of what the declarant believed to be the impending death. Courts police coaching and narrative expansions aggressively.
New Hampshire dying-declaration opinions
The State of New Hampshire v. Brian T. O’Maley — Duggan, J., dissenting
The State of New Hampshire v. Brian T. O’Maley — Duggan, J., dissenting, 156 N.H. 125 (2007)
…tion (or any other historical exception apart from that for dying declarations) ever had been “invoked to admit testimonial statements against the accused in a criminal case,” nor any indication that the Framers thought it could be so used. 541 U.S. at 56, 124 S.Ct. 1354 (emphasis in original). Traditionally, the historical business records exception did not encompass records p…
The State of New Hampshire v. Brian T. O’Maley — Duggan, J., dissenting is worth reading on New Hampshire dying declaration because the court put the point in its own words: "Framers thought it could be so used. 541 U.S. at 56, 124 S.Ct. 1354 (emphasis in original)." Use that passage as the starting point, then read the facts that precede it.
Hardy v. Merrill.
Hardy v. Merrill., 56 N.H. 227 (1875)
…; Richard Fletcher and Parker Noyes, for the defendant. The dying declarations of the woman who was slain being material, the inquiries were made by the solicitor, "Had she her senses?" "Did she understand you?" The witness was unable to state. The court asked the witness, "Was the deceased sensible of what you told her?" Hon. Richard H. Ayer testified that the prisoner's tempe…
Practitioners open Hardy v. Merrill. when New Hampshire dying declaration turns on the distinction in this sentence: "Richard Fletcher and Parker Noyes, for the defendant. The dying declarations of the woman who was slain being material, the inquiries were made by the solicitor, 'Had she her senses?" Do not lift it out of the facts the court was deciding.
The State of New Hampshire v. John E. Kenna
The State of New Hampshire v. John E. Kenna, 117 N.H. 305 (1977)
…s were admissible under either the spontaneous utterance or dying declaration exceptions to the hearsay rule. After a lengthy hearing, the Trial Court (Loughlin, J.) denied the motion holding that the statements were both spontaneous utterances and dying declarations. The court then reopened the hearing to allow the state to offer evidence that Mr. Miller was dead, a fact to wh…
New Hampshire opinions such as The State of New Hampshire v. John E. Kenna are cited where dying declaration is disputed. The court stated: "After a lengthy hearing, the Trial Court (Loughlin, J.) denied the motion holding that the statements were both spontaneous utterances and dying declarations. The court then reopened the hearing to allow the state to offer evidence that Mr." That is the language to brief; the rest of the decision supplies the procedural posture.
In Re Vernon E.
In Re Vernon E., 121 N.H. 836 (1981)
…o evidence, over the defendant’s objection, evidence of the dying declaration of the victim and the defendant’s statement to the police following his arrest. On September 5, the district court issued an order of certification transferring the case to the superior court pursuant to RSA 169-B:24 (Supp. 1979) and remanding the defendant to the Rockingham County jail pending dispos…
In Re Vernon E. is worth reading on New Hampshire dying declaration because the court put the point in its own words: "On September 5, the district court issued an order of certification transferring the case to the superior court pursuant to RSA 169-B:24 (Supp." Use that passage as the starting point, then read the facts that precede it.
The State of New Hampshire v. William A. Bonalumi
The State of New Hampshire v. William A. Bonalumi, 127 N.H. 485 (1985)
…dered a number of exceptions to the hearsay rule, including dying declarations, statements against interest, excited utterances, and business records, all of which may support a finding of apparent trustworthiness. He ultimately based his decision to admit the testimony on the excited utterance exception. Concluding a conference in chambers between himself and counsel for both…
On dying declaration, The State of New Hampshire v. William A. Bonalumi speaks to the New Hampshire dispute in this passage: "He ultimately based his decision to admit the testimony on the excited utterance exception." The surrounding opinion shows how the court applied that language to the record.
State v. Wood
State v. Wood, 53 N.H. 484 (1873)
…e side and the other, in regard to the admissibility of the dying declarations of said Elvira Woodward, it does not seem to us that the objection is well founded. When counsel argue upon facts not in the case, they should be stopped when the court’s attention is called to it; but they usually argue the evidence which is in, or which is offered, and express their views of it and…
On dying declaration, State v. Wood speaks to the New Hampshire dispute in this passage: "Elvira Woodward, it does not seem to us that the objection is well founded." The surrounding opinion shows how the court applied that language to the record.
Medical diagnosis or treatment statements
Statements made for medical diagnosis or treatment under N.H. R. Evid. 803(4) cover medical history, past or present symptoms, and their general cause when reasonably pertinent to diagnosis or treatment. The exception is not limited to treating physicians; statements to nurses, EMTs, and consulting clinicians can qualify when the diagnostic purpose is genuine. Fault and identity remain the usual battleground: "I was hit by a car" is often pertinent; "the light was green" usually is not; abuser identity in child-abuse and domestic-violence cases is heavily litigated.
New Hampshire medical-statement opinions
The State of New Hampshire v. Seth Bader
The State of New Hampshire v. Seth Bader, 148 N.H. 265 (2002)
…, ruling that the statements were “made for the purposes of medical diagnosis or treatment,” and finding that there was “an indicia of reliability to them.” On appeal, the defendant contends that the admission of Dr. Fieseher’s testimony violated the Confrontation Clause of the Sixth Amendment of the United States Constitution because the hearsay was from an unavailable and men…
The State of New Hampshire v. Seth Bader is worth reading on New Hampshire medical diagnosis hearsay because the court put the point in its own words: "On appeal, the defendant contends that the admission of Dr." Use that passage as the starting point, then read the facts that precede it.
The State of New Hampshire v. Carl H. Graf
The State of New Hampshire v. Carl H. Graf, 143 N.H. 294 (1999)
…from the hearsay rule are [statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment, regardless of to whom the statements are made, or when the statements…
New Hampshire opinions such as The State of New Hampshire v. Carl H. Graf are cited where medical diagnosis hearsay is disputed. The court stated: "from the hearsay rule are [statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinen" That is the language to brief; the rest of the decision supplies the procedural posture.
The State of New Hampshire v. Russell A. Roberts
The State of New Hampshire v. Russell A. Roberts, 136 N.H. 731 (1993)
…rule against hearsay for “[statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment, regardless of to whom the statements are made, or when the statements…
Practitioners open The State of New Hampshire v. Russell A. Roberts when New Hampshire medical diagnosis hearsay turns on the distinction in this sentence: "rule against hearsay for “[statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinen" Do not lift it out of the facts the court was deciding.
The State of New Hampshire v. Delvin White
The State of New Hampshire v. Delvin White, 145 N.H. 544 (2000)
…statements: (1) were not made with the intent of receiving medical diagnosis or treatment; (2) were not reasonably pertinent to a medical diagnosis or treatment; and (3) were not made under circumstances indicating that the statements were trustworthy. New Hampshire Rule of Evidence 803(4) excepts from the hearsay rule [statements made for purposes of medical diagnosis or trea…
The State of New Hampshire v. Delvin White is worth reading on New Hampshire medical diagnosis hearsay because the court put the point in its own words: "statements: (1) were not made with the intent of receiving medical diagnosis or treatment; (2) were not reasonably pertinent to a medical diagnosis or treatment; and (3) were not made under circumstances indicating that the statements were trustworthy. New Hampshire Rule of Evide" Use that passage as the starting point, then read the facts that precede it.
The State of New Hampshire v. Steven B. Gordon
The State of New Hampshire v. Steven B. Gordon, 148 N.H. 710 (2002)
…urt allowed the statements as statements for the purpose of medical diagnosis or treatment. The defendant argues that the trial court erred in admitting these statements. Hearsay statements are “inadmissible unless they fall within one of the exceptions to the hearsay rule.” State v. Francoeur, 146 N.H. 83, 86 (2001). We will not reverse a trial court’s ruling on the admissibil…
Practitioners open The State of New Hampshire v. Steven B. Gordon when New Hampshire medical diagnosis hearsay turns on the distinction in this sentence: "The defendant argues that the trial court erred in admitting these statements. Hearsay statements are “inadmissible unless they fall within one of the exceptions to the hearsay rule.” State v. Francoeur, 146 N.H. 83, 86 (2001)." Do not lift it out of the facts the court was deciding.
The State of New Hampshire v. Richard Soldi
The State of New Hampshire v. Richard Soldi, 145 N.H. 571 (2000)
…epts from the hearsay rule [statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment, regardless of to whom the statements are made, or when the statements…
On medical diagnosis hearsay, The State of New Hampshire v. Richard Soldi speaks to the New Hampshire dispute in this passage: "epts from the hearsay rule [statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertine" The surrounding opinion shows how the court applied that language to the record.
The State of New Hampshire v. Kevin Lynch
The State of New Hampshire v. Kevin Lynch, 169 N.H. 689 (2017)
…ate argued that the statements were made for the purpose of medical diagnosis or treatment and, thus, were admissible under New Hampshire Rule of Evidence 803(4). Over the defendant’s objection, the court allowed Gladstone’s testimony. Gladstone testified that she was called to Exeter Hospital on the date of the assault because an emergency room physician contacted her and told…
New Hampshire opinions such as The State of New Hampshire v. Kevin Lynch are cited where medical diagnosis hearsay is disputed. The court stated: "New Hampshire Rule of Evidence 803(4). Over the defendant’s objection, the court allowed Gladstone’s testimony." That is the language to brief; the rest of the decision supplies the procedural posture.
The State of New Hampshire v. George Woods
The State of New Hampshire v. George Woods, 130 N.H. 721 (1988)
…03(4), as consisting of statements given for the purpose of medical diagnosis or treatment. The defendant reasserts on appeal his hearsay and confrontation claims with respect to the three witnesses. In addition,- the defendant challenges the propriety of allowing Mrs. Hill and two investigating police officers to testify when they had no personal knowledge of the incident, and…
Practitioners open The State of New Hampshire v. George Woods when New Hampshire medical diagnosis hearsay turns on the distinction in this sentence: "The defendant reasserts on appeal his hearsay and confrontation claims with respect to the three witnesses. In addition,- the defendant challenges the propriety of allowing Mrs." Do not lift it out of the facts the court was deciding.
Use of depositions at trial
N.H. R. Civ. P. 30 and 32 govern civil depositions and trial use. N.H. R. Crim. P. 15 controls criminal discovery; deposition testimony at trial requires N.H. R. Evid. 804(b)(1) when unavailability is shown.
Deposition use is always a two-layer problem: procedural permission to read or play the deposition, plus a hearsay path (often former testimony, party admission, or impeachment). Counsel who satisfy the civil or criminal procedure rule but skip the evidence-rule foundation invite a sustained objection; counsel who have a hearsay exception but failed to preserve the deposition under the procedural rule face the same result. Video designations, counter-designations, and completeness objections should be teed up before the jury is seated.
New Hampshire deposition / former-testimony opinions
The State of New Hampshire v. David S. Sands The State of New Hampshire v. Thomas A. Tsoumas
…writing samples. As a result of the answers provided in his deposition, five indictments were returned against Tsoumas. Indictment No. 3724, on which a guilty verdict was returned, alleged that at the deposition he knowingly made a false material statement under oath, in response to questions asked, to wit: “Question: Now Mr. Smith — Mr. Tsoumas, I show you three withdrawals fr…
The State of New Hampshire v. David S. Sands The State of New Hampshire v. Thomas A. Tsoumas is worth reading on New Hampshire deposition / former testimony because the court put the point in its own words: "As a result of the answers provided in his deposition, five indictments were returned against Tsoumas. Indictment No." Use that passage as the starting point, then read the facts that precede it.
The State of New Hampshire v. Russell A. Roberts
The State of New Hampshire v. Russell A. Roberts, 136 N.H. 731 (1993)
…gh the witness had not asserted the privilege in a pretrial deposition; and (4) whether the trial court should have excluded evidence of the defendant’s homosexual relationship with the target of his acts of witness tampering. We affirm. The defendant’s witness tampering convictions arose out of his relationship with Gregory Bryar, II, a seventeen-year-old witness identified in…
Practitioners open The State of New Hampshire v. Russell A. Roberts when New Hampshire deposition / former testimony turns on the distinction in this sentence: "gh the witness had not asserted the privilege in a pretrial deposition; and (4) whether the trial court should have excluded evidence of the defendant’s homosexual relationship with the target of his acts of witness tampering. We affirm. The defendant’s witness tampering convicti" Do not lift it out of the facts the court was deciding.
Heidi Carlisle v. Frisbie Memorial Hospital & a.
Heidi Carlisle v. Frisbie Memorial Hospital & a., 152 N.H. 762 (2005)
…and damages; (3) refusing to allow Dr. Jackson’s discovery deposition to be read into evidence at trial; and (4) refusing to grant defendants’ motion for remittitur. The jury could have found the following facts. The plaintiff had a history of alcohol abuse and mental illness. When she drank alcohol, it often elicited feelings of depression and thoughts of a sexual assault tha…
Heidi Carlisle v. Frisbie Memorial Hospital & a. is worth reading on New Hampshire deposition / former testimony because the court put the point in its own words: "Dr. Jackson’s discovery deposition to be read into evidence at trial; and (4) refusing to grant defendants’ motion for remittitur. The jury could have found the following facts. The plaintiff had a history of alcohol abuse and mental illness." Use that passage as the starting point, then read the facts that precede it.
The State of New Hampshire v. Delvin White
The State of New Hampshire v. Delvin White, 155 N.H. 119 (2007)
…ot guilty. The defendant then asked M.E. if she had, in her deposition, stated that the jury in Houston’s trial decided that her accusation was false. M.E. stated that she had so described the jury’s verdict during her deposition. Upon redirect examination, M.E. testified that although she had, during her deposition, believed that a not guilty verdict meant that the jury believ…
New Hampshire opinions such as The State of New Hampshire v. Delvin White are cited where deposition / former testimony is disputed. The court stated: "The defendant then asked M.E. if she had, in her deposition, stated that the jury in Houston’s trial decided that her accusation was false. M.E. stated that she had so described the jury’s verdict during her deposition. Upon redirect examination, M.E." That is the language to brief; the rest of the decision supplies the procedural posture.
The State of New Hampshire v. Wayne B. Sargent
The State of New Hampshire v. Wayne B. Sargent, 148 N.H. 571 (2002)
…he defendant failed to show any necessity for the requested depositions because he could get the same information elsewhere. The defendant appeals each of these rulings, arguing they effectively prevented him from presenting his theory of the case at trial and prevented his expert witness from presenting a fully-informed opinion to the jury. Because each of these *573issues dea…
New Hampshire opinions such as The State of New Hampshire v. Wayne B. Sargent are cited where deposition / former testimony is disputed. The court stated: "The defendant appeals each of these rulings, arguing they effectively prevented him from presenting his theory of the case at trial and prevented his expert witness from presenting a fully-informed opinion to the jury." That is the language to brief; the rest of the decision supplies the procedural posture.
Ashley A. Miller & a. v. Charles P. Basbas
Ashley A. Miller & a. v. Charles P. Basbas, 131 N.H. 332 (1988)
…minor child deposed, and the parents sought to prevent the deposition. The plaintiffs raise the following issues on appeal: (1) in a civil suit regarding alleged sexual abuse, is the plaintiff child of tender age an incompetent witness in a deposition and trial, and as such is the child unavailable as a witness, thereby allowing the testimony of the child to fall within one of…
New Hampshire opinions such as Ashley A. Miller & a. v. Charles P. Basbas are cited where deposition / former testimony is disputed. The court stated: "minor child deposed, and the parents sought to prevent the deposition. The plaintiffs raise the following issues on appeal: (1) in a civil suit regarding alleged sexual abuse, is the plaintiff child of tender age an incompetent witness in a deposition and trial, and as such is th" That is the language to brief; the rest of the decision supplies the procedural posture.
Kirsten Werne v. Executive Women’s Golf Association & A.
Kirsten Werne v. Executive Women’s Golf Association & A., 158 N.H. 373 (2009)
…e premises due to inadequate lighting. However, Werne’s own deposition shows that the dark conditions were an integral part of the game. During her deposition she was asked why she did not stop playing if she knew it was “really, really dark,” to which she replied: “That was the point. It was dark. . . . [Tjhey made us wait until it was dark.” She further argues that lack of li…
Practitioners open Kirsten Werne v. Executive Women’s Golf Association & A. when New Hampshire deposition / former testimony turns on the distinction in this sentence: "However, Werne’s own deposition shows that the dark conditions were an integral part of the game. During her deposition she was asked why she did not stop playing if she knew it was “really, really dark,” to which she replied: “That was the point. It was dark. . . ." Do not lift it out of the facts the court was deciding.
O'Meara's Case
O'Meara's Case, 150 N.H. 157 (2003)
…bjection to a motion to quash subpoena and motion to compel deposition testimony, arising from the following situation: The respondent indicated in a letter to his wife’s attorney, Campbell Harvey, dated September 28, 2000, that he would like to depose a certain witness on October 17, 2000. He stated that if he did not hear from Attorney Harvey by October 10, 2000, he would iss…
Practitioners open O'Meara's Case when New Hampshire deposition / former testimony turns on the distinction in this sentence: "The respondent indicated in a letter to his wife’s attorney, Campbell Harvey, dated September 28, 2000, that he would like to depose a certain witness on October 17, 2000." Do not lift it out of the facts the court was deciding.
Authenticity: why it matters and how to prove it
Authenticity is not a hearsay doctrine and it is not optional. Under N.H. R. Evid. 901, 902, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is. Self-authenticating categories — certified public records, newspapers, acknowledged documents, trade inscriptions, and (where adopted) certified domestic records of a regularly conducted activity — shorten the path, but most trial exhibits still need a sponsoring witness, distinctive characteristics, chain of custody, or process-or-system evidence.
New Hampshire trials involving school records, ski-resort incident reports, and electronic communications require authentication under N.H. R. Evid. 901–902 before admission.
Why authenticity gets its own section in every New Hampshire trial notebook:
- It is a condition precedent. An unauthenticated exhibit never reaches the relevance, hearsay, or privilege analysis in a useful way — the jury never properly considers it.
- Digital evidence multiplies the failure modes. Screenshots, social-media posts, text threads, and cloud downloads require hash values, account attribution, metadata, or a percipient witness who saw the content created or received.
- Chain of custody is authenticity by another name. Drugs, firearms, biological samples, and seized devices are excluded when the links from seizure to lab to courtroom are broken, even if a hearsay exception would otherwise apply to a lab report.
- Business-records shortcuts do not replace authentication. A custodian can explain record-keeping practices and still fail if nobody can say the particular PDF or printout is the record of this patient, this account, or this machine.
- Self-authentication is narrow. Counsel who wave a notarization or a letterhead and skip the rest of Rule 901-style analysis often lose when the document's contents are disputed.
Practical authentication checklist for New Hampshire trials: identify the exhibit; choose a 901 method or a 902 category; line up the sponsoring witness or certificate; preserve chain-of-custody testimony for physical and digital items; and separate the authenticity objection from any hearsay objection so the court rules on each.
New Hampshire authenticity opinions
The State of New Hampshire v. Christopher M. Palermo
The State of New Hampshire v. Christopher M. Palermo, 168 N.H. 387 (2015)
…rial court erred by: (1) ruling that the State sufficiently authenticated certain Facebook messages; (2) admitting evidence of his prior incarceration, parole status, and civil lawsuit against the New Hampshire State Prison; and (3) allowing the State to introduce a photograph of him. We affirm. I. Background The jury could have found the following facts. In 2011, the defendant…
New Hampshire opinions such as The State of New Hampshire v. Christopher M. Palermo are cited where authentication is disputed. The court stated: "State sufficiently authenticated certain Facebook messages; (2) admitting evidence of his prior incarceration, parole status, and civil lawsuit against the New Hampshire State Prison; and (3) allowing the State to introduce a photograph of him. We affirm. I." That is the language to brief; the rest of the decision supplies the procedural posture.
The State of New Hampshire v. Gordon Reid
The State of New Hampshire v. Gordon Reid, 135 N.H. 376 (1992)
…quent to arrest, on the grounds that they were not properly authenticated pursuant to New Hampshire Rule of Evidence 901. On appeal, he argues that the trial court erroneously denied both motions. We disagree and affirm. The facts are straightforward. On June 7,1989, at 2:52 a.m., Officer Janet Champlin of the Portsmouth police discovered that a showroom window at the Goss Linc…
New Hampshire opinions such as The State of New Hampshire v. Gordon Reid are cited where authentication is disputed. The court stated: "New Hampshire Rule of Evidence 901. On appeal, he argues that the trial court erroneously denied both motions. We disagree and affirm. The facts are straightforward. On June 7,1989, at 2:52 a.m." That is the language to brief; the rest of the decision supplies the procedural posture.
The State of New Hampshire v. Kristin Ruggiero
The State of New Hampshire v. Kristin Ruggiero, 163 N.H. 129 (2011)
…etap statute; (2) in allowing into evidence, without proper authentication, certain e-mail messages she purportedly sent; and (3) in denying her motion to dismiss for insufficient evidence. We affirm. The jury could have found the following facts. The defendant married Jeffrey Ruggiero (Jeffrey) in August 2001. In 2007, divorce proceedings commenced. In November 2007, the defen…
New Hampshire opinions such as The State of New Hampshire v. Kristin Ruggiero are cited where authentication is disputed. The court stated: "We affirm. The jury could have found the following facts. The defendant married Jeffrey Ruggiero (Jeffrey) in August 2001. In 2007, divorce proceedings commenced." That is the language to brief; the rest of the decision supplies the procedural posture.
The State of New Hampshire v. Stephen Stangle
The State of New Hampshire v. Stephen Stangle, 166 N.H. 407 (2014)
…ourt erred in admitting a surveillance video without proper authentication. We affirm. The following facts are drawn from the record or are otherwise undisputed. In January 2012, while shopping in a store in Woodsville, the defendant placed a vacuum cleaner in his shopping cart, passed through an unattended register line without paying, and proceeded to the customer service are…
New Hampshire opinions such as The State of New Hampshire v. Stephen Stangle are cited where authentication is disputed. The court stated: "We affirm. The following facts are drawn from the record or are otherwise undisputed." That is the language to brief; the rest of the decision supplies the procedural posture.
Alfred C. Smith v. Lucius S. Tallman.
Alfred C. Smith v. Lucius S. Tallman., 87 N.H. 176 (1934)
…oth the constitution and the statute, is for the purpose of authenticating the writ. Obviously this might have been done by requiring the signature of a justice, but the framers of the constitution of 1784 and of the statute of 1791 adopted what was already the practice in the three organized courts of the state (2 N. H. Laws, 136, 137, 303-307) and provided for authentication…
Practitioners open Alfred C. Smith v. Lucius S. Tallman. when New Hampshire authentication turns on the distinction in this sentence: "Obviously this might have been done by requiring the signature of a justice, but the framers of the constitution of 1784 and of the statute of 1791 adopted what was already the practice in the three organized courts of the state (2 N. H." Do not lift it out of the facts the court was deciding.
Henry J. Brien & a. v. Gilbert E. Wiley & a.
Henry J. Brien & a. v. Gilbert E. Wiley & a., 124 N.H. 573 (1984)
…d 511 (1978). But certification is not the exclusive way to authenticate such a document. One alternative method of proving authenticity is by a competent witness who testifies on the basis of personal examination that the copy offered is an accurate copy of the public record. State v. Loughlin, 66 N.H. 266, 20 A. 981 (1890). Mr. Wiley’s offer of copies made by his wife, the co…
Practitioners open Henry J. Brien & a. v. Gilbert E. Wiley & a. when New Hampshire authentication turns on the distinction in this sentence: "But certification is not the exclusive way to authenticate such a document. One alternative method of proving authenticity is by a competent witness who testifies on the basis of personal examination that the copy offered is an accurate copy of the public record. State v." Do not lift it out of the facts the court was deciding.
The State of New Hampshire v. John D. Moscillo
The State of New Hampshire v. John D. Moscillo, 139 N.H. 79 (1994)
…bags of marijuana admitted into evidence were not properly authenticated. We affirm. The defendant’s convictions were based on evidence that he attempted to sell marijuana to undercover State troopers. On December 3, 1991, Trooper A. Bradford Card, acting undercover, arranged to buy marijuana from Christopher Canti. The next evening, the defendant and Canti drove to the site o…
The State of New Hampshire v. John D. Moscillo is worth reading on New Hampshire authentication because the court put the point in its own words: "We affirm. The defendant’s convictions were based on evidence that he attempted to sell marijuana to undercover State troopers. On December 3, 1991, Trooper A. Bradford Card, acting undercover, arranged to buy marijuana from Christopher Canti." Use that passage as the starting point, then read the facts that precede it.
The State of New Hampshire v. Robert Knapp
The State of New Hampshire v. Robert Knapp, 150 N.H. 36 (2003)
…t because it did not contain a raised seal, it could not be authenticated under New Hampshire Rule of Evidence 902. He also argued that the State failed to present sufficient extrinsic evidence to authenticate it under New Hampshire Rule of Evidence 901. The trial court overruled the objection and the document was admitted. The defendant was convicted and this appeal followed.…
Practitioners open The State of New Hampshire v. Robert Knapp when New Hampshire authentication turns on the distinction in this sentence: "New Hampshire Rule of Evidence 902. He also argued that the State failed to present sufficient extrinsic evidence to authenticate it under New Hampshire Rule of Evidence 901. The trial court overruled the objection and the document was admitted." Do not lift it out of the facts the court was deciding.
Practice checklist
- State the relevance theory in one sentence before naming an exception.
- Run the 403 / unfair-prejudice balance explicitly for other-acts and graphic exhibits.
- For character or other-acts evidence, identify the non-propensity purpose and request a limiting instruction on the record.
- Decide whether an out-of-court statement is hearsay for the purpose offered before hunting exceptions.
- Lay business-records foundations with time, knowledge, regular practice, and custodial qualifications — or a qualifying certification.
- Prove unavailability with specific facts before offering former testimony or dying declarations.
- Treat deposition use as procedure-plus-hearsay; designate and counter-designate early.
- Authenticate every exhibit under N.H. R. Evid. 901, 902 (or the self-authentication path) before arguing hearsay.
- Preserve chain of custody for physical and digital evidence with named custodians.
- Search LawDiver for recent New Hampshire appellate evidence opinions before mediation or motions in limine.
Frequently asked questions
What is the primary evidence source in New Hampshire?
New Hampshire applies the New Hampshire Rules of Evidence. New Hampshire's rules track the FRE; N.H. R. Evid. 401–902 govern superior and circuit court trials.
How do New Hampshire courts decide relevance and unfair prejudice?
Under N.H. R. Evid. 401, 403, evidence must make a fact of consequence more or less probable, and the court may exclude relevant evidence when unfair prejudice, confusion, or waste of time substantially outweighs its probative value.
Are party admissions hearsay in New Hampshire?
Party-opponent statements under N.H. R. Evid. 801(d)(2) are generally excluded from the hearsay ban (or treated as an exception, depending on local drafting). They may be offered against the party who made or adopted them without showing unavailability.
What foundation is required for business records?
Under N.H. R. Evid. 803(6), show a record made at or near the time from someone with knowledge, kept in the course of a regularly conducted activity, as a regular practice, through a custodian, qualified witness, or allowed certification — subject to trustworthiness attack.
When can I use a deposition at trial in New Hampshire?
N.H. R. Civ. P. 30 and 32 govern civil depositions and trial use. N.H. R. Crim. P. 15 controls criminal discovery; deposition testimony at trial requires N.H. R. Evid. 804(b)(1) when unavailability is shown.
Why is authenticity separate from hearsay?
Authenticity asks whether the item is what you claim it is; hearsay asks whether out-of-court assertions inside it may be used for their truth. You can lose on either ground independently. New Hampshire authenticity practice starts with N.H. R. Evid. 901, 902.
Where do dying declarations and medical statements fit?
Dying declarations under N.H. R. Evid. 804(b)(2) require belief in impending death and concern the cause or circumstances of that believed death. Medical statements under N.H. R. Evid. 803(4) require a genuine diagnostic or treatment purpose and reasonable pertinence to care.