Admission of Contemporaneous Text Messages under Hearsay Exceptions in Domestic Violence Prosecutions

Introduction

In the matter of State of New Hampshire v. Kenneth Brunelle (No. 2023-0302), the Supreme Court of New Hampshire confronted two evidentiary questions central to modern domestic violence prosecutions: (1) the admissibility of victim’s text messages under the present-sense impression and then-existing mental condition hearsay exceptions; and (2) the proper standard for in camera review of a victim’s counseling records. The defendant, Kenneth Brunelle, had been convicted by a jury of one count of second-degree assault-domestic violence, two counts of domestic violence‐simple assault, and three counts of criminal threatening based on conduct occurring on December 12, 2019. On appeal, he challenged (a) the trial court’s admission of nearly thirty text messages he claimed were inadmissible hearsay, and (b) the scope of the trial court’s in camera disclosure of victim counseling records under State v. Gagne and its progeny. On April 8, 2025, the Supreme Court issued an order affirming the convictions and clarifying both the hearsay exceptions for contemporaneous digital communications and the standards for reviewing privileged counseling files.

Summary of the Judgment

The Supreme Court unanimously affirmed the trial court’s rulings. First, the Court held that a substantial subset of the victim’s text messages were admissible under New Hampshire Rule of Evidence 803(1) (present-sense impression) and Rule 803(3) (then-existing mental, emotional, or physical condition). Of the nineteen messages challenged on appeal, four described events or conditions “essentially contemporaneous” with the assault and thus fit the present-sense exception, and five conveyed the victim’s ongoing fear, intent to flee, and distress—qualities fitting the mental-state exception. The Court further concluded that any error in admitting the remaining ten messages was harmless beyond a reasonable doubt in light of overwhelming corroborative evidence (the victim’s live testimony, medical-treatment records, and police testimony).

Second, the Court affirmed the trial court’s in camera review and limited disclosure of the victim’s counseling records. Noting that the trial court expressly applied Gagne and, implicitly, Girard (which clarified the materiality standard), the Supreme Court found no indication that the in camera decision departed from the rule requiring a “reasonable probability that the records contain material and relevant information.” The limited disclosures made “in an overabundance of caution” were consistent with the dual interests of defense fairness and victim privacy.

Analysis

Precedents Cited

State v. Simpkins, 139 N.H. 735 (1995): Defined the present-sense impression exception’s requirement that statements be “essentially contemporaneous” with the events described, minimizing the risk of reflection or fabrication.
State v. Rouleau, 176 N.H. 400 (2024): Confirmed that evidentiary rulings are reviewed for an “unsustainable exercise of discretion,” requiring only an objective record basis to sustain the trial court’s judgment.
State v. Legere, 157 N.H. 746 (2008): Clarified that the “then‐existing mental, emotional, or physical condition” exception applies to statements reflecting the declarant’s state of mind at the time of utterance, without later self-serving analysis.
State v. Gagne, 136 N.H. 101 (1992): Established the standard for in camera review of privileged victim counseling records, requiring the defendant to show a “reasonable probability” that the files contain material evidence.
State v. Girard, 173 N.H. 619 (2020): Refined Gagne by emphasizing that in camera reviews must be narrowly tailored and must balance defendant’s right to relevant evidence against a victim’s privacy interests.

Legal Reasoning

The Court applied New Hampshire Rules of Evidence 803(1) and (3) to determine which of the victim’s text messages were non-hearsay and thus admissible:

Present-Sense Impressions (Rule 803(1)): Four challenged messages were admissible because each described or explained the victim’s immediate perception of threats or actions by the defendant—sent “while or immediately after” the abuse occurred. Drawing on Simpkins, the Court held that retrieving a cell phone and sending a text once secure in a bedroom did not defeat contemporaneity so long as the lapse posed no realistic risk of reflective misstatement.
Then-Existing Mental Condition (Rule 803(3)): Five messages revealing the victim’s fear, distress, intent to leave, and ongoing sense of peril fell squarely within the exception covering declarations of motive, design, mental feeling, or bodily health contemporaneous with the statement. Citing Legere, the Court noted that the messages conveyed the victim’s sincere state of mind at the moment of communication.

The Court then applied the “unsustainable exercise of discretion” standard (Rouleau) to affirm the trial court’s discretionary foundation for admission. It also invoked the harmless-error doctrine by examining the totality of evidence—the victim’s direct testimony, corroborating medical records, and independent police testimony—and concluded that any erroneous admission of residual messages did not affect the jury’s verdict beyond a reasonable doubt.

Regarding the in camera review, the Court presumed the trial court’s awareness of Girard and found that the lower court’s order—describing undisclosed records as “not germane” or “exceedingly private”—demonstrated a proper application of the “reasonable probability” materiality test set forth in Gagne and refined by Girard. Having independently examined the counseling files, the Supreme Court identified no error in excluding the non-disclosed portions.

Impact

This decision has significant implications for future prosecutions and evidentiary practice:

Digital Communications as Hearsay Exceptions: Courts will cite Brunelle when confronting questions about text messages, instant messages, social media posts, and other digital statements made contemporaneously with underlying events. The case underscores that the formal retrieval delay (e.g., finding a phone) does not automatically sever the spontaneity required for a present-sense impression.
Encouraging Early Reporting in Domestic Violence Cases: By affirming the admissibility of contemporaneous victim communications, the decision may encourage victims to document abuse in real time, knowing those evidentiary records can support charges and reduce reliance solely on memory.
Clarified In Camera Review Protocols: Trial courts are reminded to invoke both Gagne and Girard when assessing privileged counseling records, to articulate findings of materiality or privacy, and to document the basis for excluding non-germane entries. Defendant-applicants must demonstrate a reasonable likelihood that relevant evidence lies in confidential files.

Complex Concepts Simplified

Hearsay: An out-of-court statement offered to prove the truth of what it asserts. Generally inadmissible unless it fits a recognized exception.
Present-Sense Impression (Rule 803(1)): A statement describing or explaining an event made while or immediately after perceiving it, trusted because there is little time to reflect or fabricate.
Then-Existing Mental Condition (Rule 803(3)): A statement of the declarant’s current state of mind, emotion, sensation, or bodily health—such as intent, fear, or pain—offered to prove that condition.
Unsustainable Exercise of Discretion: A deferential appellate review standard asking whether the trial court’s decision lacked any reasonable basis in the record.
Harmless Error: An appellate doctrine requiring the State to show beyond a reasonable doubt that any evidentiary error did not influence the jury’s verdict.
In Camera Review: A private, judge-only examination of sensitive records (here, counseling files) to determine whether they contain material evidence before disclosing them to the parties.

Conclusion

State of New Hampshire v. Brunelle marks a milestone in the application of hearsay exceptions to digital communications and in the court’s handling of victim counseling records. By affirming the admission of contemporaneous text messages under well-established exceptions and by upholding a rigorous, privacy-sensitive in camera review process, the Supreme Court provides clear guidance for trial courts, prosecutors, and defense counsel. The decision strengthens evidentiary support for domestic violence victims, endorses the probative value of real-time documentation, and reinforces the judiciary’s duty to balance evidentiary fairness with personal privacy. As digital communications become ubiquitous, Brunelle will serve as a foundational precedent for judges weighing the admissibility of such evidence in criminal proceedings.