Introduction

In Anthony Pivero v. Attorney General & a. (N.H. Supreme Court, No. 2024-0142, June 27, 2025), the New Hampshire Supreme Court vacated the dismissal of a former police officer’s challenge to his placement on the State’s Exculpatory Evidence Schedule (EES) and remanded for further proceedings. The case sits at the intersection of Brady disclosure obligations, the scope of “potentially exculpatory evidence” under RSA 105:13-d, and the procedural due process required before an officer’s name and associated misconduct become public when the officer challenges EES placement.

The plaintiff, a former Nashua Police Department officer, was disciplined in 2002 after an internal investigation concluded he had been untruthful during an investigation into his refusal to translate for a Spanish-speaking complainant. He retired in 2003. In 2017, the Department of Justice (DOJ) placed his name on the EES; he was notified in 2021. He sought injunctive relief to remove his name, arguing both that the internal finding was not “potentially exculpatory” within the meaning of RSA 105:13-d and that he was denied adequate due process before being listed. The Superior Court dismissed his amended complaint. On appeal, the Supreme Court applied its recent decision in Doe v. New Hampshire Attorney General (Activity Logs), 176 N.H. 806 (2024), and clarified the due process required in unique circumstances where no neutral adjudicator has ever made factual findings regarding the alleged exculpatory misconduct.

The key issues were:

• How to determine whether information is “potentially exculpatory” for EES purposes, particularly where alleged misconduct is old and concerns general credibility.
• What process is due under RSA 105:13-d, II(e) when an officer challenges EES placement, especially if no prior arbitration or neutral fact-finding has occurred.

The defendants were the New Hampshire Attorney General (as custodian of the EES) and the City of Nashua (the employing law enforcement agency at the time of the 2002 discipline).

Summary of the Opinion

• The Court vacated the trial court’s conclusion that the plaintiff’s personnel-file information was potentially exculpatory and remanded for reconsideration under the standard articulated in Doe (Activity Logs): “within the context of RSA 105:13-d, ‘potentially exculpatory evidence’ is evidence, including impeachment evidence, that is reasonably capable of being material to guilt or to punishment.” Considerations affecting admissibility—such as the age and nature of the conduct and its materiality to an officer’s general credibility—must inform EES placement decisions. If there is no reasonably foreseeable case in which the information would be admissible, inclusion is not warranted.
• The Court also rejected the trial court’s due process conclusion. Given that the plaintiff’s grievance arbitration was never held and the plaintiff denies untruthfulness, the Court could not conclude as a matter of law that prior internal disciplinary processes provided constitutionally adequate process on the question of whether he engaged in potentially exculpatory conduct. The plaintiff is entitled to further “due process proceedings” under RSA 105:13-d, II(e), with the nature and scope to be determined by the trial court.
• The matter was disposed of under Supreme Court Rule 20(3) by order, not a full written opinion, but it sets important guidance for EES litigation going forward.

Background and Procedural History

• 2002 internal investigation: The Nashua Police Department concluded the plaintiff was untruthful when recounting his prior translation assignments and post-order conduct. He was suspended and demoted after a pre-disciplinary hearing with counsel.
• Board review: The Board of Police Commissioners sustained discipline; the plaintiff, via union representative, waived a direct hearing before the Board. The Board concluded he had been untruthful and that the process was fair.
• Arbitration: Counsel filed for PELRB arbitration, but it was never scheduled; the plaintiff later retired on accidental disability in 2003.
• EES: DOJ placed the plaintiff on the EES in 2017 and notified him in 2021.
• Litigation: The plaintiff’s amended complaint sought removal from the EES, arguing that the internal “untruthfulness” finding was not potentially exculpatory and that he was denied due process before being publicly listed. The Superior Court granted the defendants’ motions to dismiss; reconsideration was denied; appeal followed.

Precedents and Authorities Cited

RSA 105:13-d (2023)

RSA 105:13-d authorizes the DOJ to maintain a voluntary EES—“a list of all current or former law enforcement officers whose personnel information contain potentially exculpatory evidence.” Officers may challenge their placement in superior court. If an officer files such a challenge, the name and related information become public unless a court finds either that the underlying misconduct is not potentially exculpatory or that the agency erred in recommending EES placement (RSA 105:13-d, II(d)(1)-(2)). The statute also requires “due process proceedings” when placement is challenged (RSA 105:13-d, II(e)).

Doe v. New Hampshire Attorney General (Activity Logs), 176 N.H. 806 (2024), 2024 N.H. 50

The Court established the controlling standard for “potentially exculpatory” under RSA 105:13-d: evidence—including impeachment evidence—must be reasonably capable of being material to guilt or punishment. It emphasized that admissibility-related considerations (e.g., age of conduct, materiality to general credibility) should inform EES placement decisions. Critically, if no reasonably foreseeable case exists in which the information would be admissible—because of the passage of time or other relevance factors—EES inclusion is not warranted.

State v. Laurie, 139 N.H. 325 (1995) and Brady v. Maryland, 373 U.S. 83 (1963)

Laurie and Brady underpin the constitutional obligation to disclose exculpatory and impeachment material. Laurie recognizes the centrality of a jury’s assessment of a witness’s truthfulness to guilt or innocence, compelling disclosure of credibility-affecting material. These cases frame why police-officer credibility issues can be exculpatory and inform the purpose of the EES.

Gantert v. City of Rochester, 168 N.H. 640 (2016)

Gantert held that arbitration findings addressing officer misconduct and discipline can satisfy procedural due process. The Court contrasted that posture with the present case: here, arbitration never occurred, and no neutral adjudicator ever made factual findings on the alleged untruthfulness, weakening the due process adequacy argument at the pleading stage.

Boucher v. Town of Moultonborough, 176 N.H. 271 (2023)

Boucher provides the motion-to-dismiss standard: the court assumes the truth of pleaded facts, draws reasonable inferences in favor of the plaintiff, and tests whether allegations are reasonably susceptible to a construction that would permit recovery, considering certain attached or referenced documents and public records. This standard framed why dismissal was premature here.

Supreme Court Rule 20(3)

The Court resolved the appeal by order under Rule 20(3), a streamlined disposition mechanism that does not diminish the precedential guidance embedded in the order’s legal analysis.

Legal Reasoning

1) The “Potentially Exculpatory” Standard and Admissibility-Foreseeability

The trial court found the plaintiff’s personnel-file information potentially exculpatory because a trial court “might admit” untruthfulness findings as probative of general credibility. The Supreme Court vacated that determination because it predated and did not apply the Activity Logs standard. Under that standard, a court must ask whether the information is reasonably capable of being material to guilt or punishment in a reasonably foreseeable case—and, crucially, must factor in admissibility considerations such as the nature of the conduct, its age, and its materiality to general credibility.

The Court reiterated Activity Logs’ key principle: if no reasonably foreseeable case exists in which the information would be admissible—because, for example, the conduct is too remote in time or otherwise too attenuated in relevance—EES inclusion is inappropriate. This moves the inquiry beyond a theoretical possibility that evidence “might” be admitted and toward a pragmatic assessment grounded in evidentiary relevance and foreseeability.

Application to this record will require the trial court to evaluate the specifics: the untruthfulness finding dates to 2002; the plaintiff retired in 2003; the listing occurred in 2017 with notification in 2021; and the current assessment occurs in 2025. The court must determine whether, given the passage of time and the nature of the conduct, there remains a reasonably foreseeable case in which such evidence would be admissible and material to guilt or punishment.

2) Due Process in the Absence of Neutral Adjudication

On due process, the Court rejected the trial court’s conclusion that the internal disciplinary procedures made it “unlikely any impairment of [the plaintiff’s] reputation would be erroneous.” Under RSA 105:13-d, II(e), the due process question is whether the plaintiff received adequate process regarding the conclusion that he engaged in potentially exculpatory conduct. The Court emphasized the “unique circumstances” here: the officer retired; the requested PELRB arbitration was never scheduled; and, at the pleading stage, the plaintiff expressly denies being untruthful and contends his statements reflected his best recollection rather than an intent to mislead.

Unlike in Gantert, there was no arbitrator making factual findings after an adversarial process. Given that absence, the Court could not conclude as a matter of law that due process was satisfied merely by internal disciplinary steps and a grievance process that never culminated in neutral fact-finding. The plaintiff is therefore entitled to further “due process proceedings,” with the trial court to determine their nature and scope.

3) Procedural Posture and Standard of Review

Because this appeal arises from a Rule 12 motion to dismiss, the Court applied Boucher’s deferential standard to the plaintiff’s factual allegations, including his denial of untruthfulness. That posture materially affects the due process analysis: the Court’s role is not to resolve factual disputes but to decide whether the complaint states a claim warranting relief. The lack of arbitration and the contested nature of the untruthfulness finding were enough to preclude dismissal and necessitate tailored proceedings on remand.

Impact and Implications

For EES Administration and Litigation

• Admissibility and foreseeability now sit at the center of EES placement decisions. Agencies and the DOJ must assess whether personnel-file information is reasonably capable of being material to guilt or punishment in a reasonably foreseeable case, not merely whether it concerns general credibility.
• Old or attenuated conduct may not justify continued listing if no reasonably foreseeable use exists due to the passage of time or other relevance-limiting factors. The age of the conduct and its connection to material trial issues must be weighed.
• When officers challenge EES placement, courts must provide “due process proceedings” suited to the circumstances. Where no neutral adjudicator has ever found the alleged misconduct, additional process beyond internal discipline may be required to test the underlying facts.
• The order will likely prompt more granular evidentiary analyses on remand, including whether specific untruthfulness findings are admissible impeachment and under what circumstances—taking into account evidentiary rules and the practicalities of trial use.

For Law Enforcement Agencies and Municipalities

• Internal disciplinary conclusions—particularly older ones—may be insufficient by themselves to support EES inclusion without a showing that the information remains admissible and materially relevant in a foreseeable prosecution.
• In cases lacking arbitration or other neutral adjudication, agencies should anticipate court-ordered proceedings to resolve factual disputes about alleged exculpatory conduct, especially when officers deny the misconduct.
• Record retention and documentation practices gain heightened importance; agencies must be prepared to substantiate the factual basis for listing and address admissibility considerations decades later.

For Prosecutors and Criminal Defendants

• Activity Logs’ materiality-foreseeability framework, reinforced here, aligns EES administration with Brady/Laurie obligations, focusing on evidence likely to matter at trial or sentencing.
• Defendants still benefit from disclosure of genuinely material impeachment evidence, but the EES will better filter out stale or irrelevant matters unlikely to be admissible.

Open Questions and Practical Considerations

• Retired status and foreseeability: The Court did not hold that retirement alone negates foreseeability, but retirement may be a “factor weighing on the conduct’s relevance.” Trial courts will need to evaluate practical likelihoods of the officer testifying or the evidence being used in proceedings.
• Scope of due process proceedings: RSA 105:13-d, II(e) does not prescribe a single template. On remand, courts may fashion hearings that receive evidence, allow cross-examination, and make findings on whether the officer engaged in the alleged conduct and whether that conduct is potentially exculpatory within the Activity Logs framework.
• Public disclosure dynamics: Because RSA 105:13-d, II(d) makes the officer’s name and information public upon challenge unless specific findings are made, litigants must be strategic about timing and the evidentiary record they present in support of removal.

Complex Concepts Simplified

Exculpatory Evidence and Impeachment

Exculpatory evidence is information that could help a criminal defendant by tending to show innocence or reduce punishment. Impeachment evidence is a subset that undermines a witness’s credibility (including an officer’s truthfulness). Because a jury’s view of a witness’s honesty can determine the outcome, impeachment can be exculpatory.

Exculpatory Evidence Schedule (EES)

The EES is a DOJ-maintained list of officers whose personnel files contain potentially exculpatory information. Its function is to help prosecutors meet their constitutional duty to disclose exculpatory and impeachment evidence to criminal defendants.

“Reasonably Foreseeable Admissibility”

Not all credibility-related information will matter in court. The Court requires asking whether there is a realistic prospect that the information would be admissible and materially affect guilt or sentencing in a case. If the answer is no—because it is too old, too tangential, or otherwise inadmissible—EES placement is not justified.

Procedural Due Process in EES Challenges

Procedural due process means fair procedures before the government makes decisions that affect someone’s protected interests (including reputational harms linked to public listing). In this context, due process typically includes notice of the proposed action and a meaningful chance to contest the underlying facts. If prior processes lacked neutral adjudication or fact-finding, courts may require additional proceedings.

Motion to Dismiss Standard

At the motion to dismiss stage, courts assume the plaintiff’s factual allegations are true and ask whether those allegations could support legal relief. Disputed facts—like whether the officer was actually untruthful—are not resolved at this early stage.

Conclusion

Pivero v. Attorney General & a. reinforces and operationalizes the Activity Logs standard for EES placement: the touchstone is whether personnel-file information is reasonably capable of being material to guilt or punishment in a reasonably foreseeable case, with admissibility considerations—especially the age and nature of the conduct—front and center. It also clarifies that, under RSA 105:13-d, II(e), due process may require more than internal discipline when no neutral adjudicator has ever made factual findings on the alleged exculpatory conduct. In such circumstances, additional, tailored proceedings are warranted before an officer’s name and information remain publicly listed on the EES.

By vacating the dismissal and remanding, the Court ensures trial courts conduct a careful, evidence- and foreseeability-based analysis of potential exculpatory value and provide appropriate process to test disputed allegations. The decision will likely refine EES administration, leading to listings that better track Brady/Laurie materiality while safeguarding officers’ due process rights.

Case Details

• Case: Anthony Pivero v. Attorney General & a.
• Court: Supreme Court of New Hampshire
• Docket No.: 2024-0142
• Date: June 27, 2025
• Disposition: Vacated and remanded
• Panel: MacDonald, C.J., and Bassett, Donovan, and Countway, JJ., concurred