No Expiration on Credibility: EES Inclusion of Former Officers and Old Misconduct under RSA 105:13-d

Introduction

This commentary analyzes the New Hampshire Supreme Court’s order in John Doe v. New Hampshire Liquor Commission, Bureau of Enforcement & a., No. 2024-0319 (Dec. 17, 2025), affirming the Superior Court’s grant of summary judgment in favor of the New Hampshire Liquor Commission, Bureau of Enforcement (“the commission”) and the New Hampshire Attorney General’s Office (“AGO”).

At the heart of the case lies New Hampshire’s Exculpatory Evidence Schedule (“EES”), codified in RSA 105:13-d (2023), previously known as the “Laurie List.” The plaintiff, a former law-enforcement investigator, sought removal of his name from this list after more than fifteen years had passed since the underlying misconduct and after he had retired from law enforcement. He argued that his prior misconduct was too old, that he no longer worked as an officer, and that continued listing served no legitimate prosecutorial function and merely embarrassed him.

The New Hampshire Supreme Court rejected those arguments. It reaffirmed and extended a key standard: an officer’s personnel information is “potentially exculpatory” for EES purposes if, assuming a future case were to arise in which the officer testifies, it is reasonably foreseeable that the misconduct evidence would be admissible as exculpatory or impeachment evidence. The Court made clear that this standard does not require courts to assess how likely it is that such a future case will arise or that the (former) officer will actually testify.

The decision also holds that neither the age of the misconduct (here, more than 15 years) nor the officer’s retirement from law enforcement extinguishes the “potentially exculpatory” nature of credibility-related misconduct. Finally, in the due process context, the Court concludes that a former officer who had a full opportunity to challenge internal findings of dishonesty—but chose not to appeal—cannot later claim a lack of due process when those same findings become the basis for statutorily authorized, and now public, inclusion on the EES.

Summary of the Opinion

The plaintiff, John Doe, was an investigator with the New Hampshire Liquor Commission. In 2008, internal investigations concluded that he had provided untruthful, contradictory information in a police report and during interviews, contradicting witness accounts, including a Concord Police sergeant. The Chief of the commission determined that Doe’s “credibility and integrity” had been compromised, imposed a two-week unpaid suspension, and notified county attorneys and the AGO that Doe presented a “Laurie” issue.

A Concord District Court judge later conducted an in camera review of Doe’s personnel file and concluded that there was indeed a “Laurie issue” that would cause the court to question his credibility. Doe did not appeal the internal discipline to the Personnel Appeals Board, despite explicit notice of that right.

In 2021, the legislature enacted RSA 105:13-d, authorizing the Department of Justice to maintain the EES, a list of current or former officers whose personnel files contain “potentially exculpatory evidence.” The AGO, relying on the 2008–2009 findings, placed Doe on the EES and notified him of his right to challenge that placement. He brought a petition for declaratory judgment, effectively contesting the propriety of his continued inclusion on the EES.

The Superior Court granted summary judgment for the defendants, finding:

  • Doe’s documented dishonesty bore on his general credibility and thus potentially triggered prosecutorial disclosure obligations in any case where his credibility was at issue.
  • The age of the misconduct and Doe’s retirement did not eliminate its “potentially exculpatory” character.
  • Doe had been afforded constitutionally adequate process in the internal investigations and through his right of appeal, which he chose not to exercise.

On appeal, Doe argued that:

  1. The court applied the wrong standard for determining whether his file contained “potentially exculpatory” information under RSA 105:13-d.
  2. The information was “stale and antiquated.”
  3. His conduct did not meet the EES criteria.
  4. He had not received sufficient due process.

The Supreme Court, reviewing de novo the trial court’s application of the law to the summary-judgment record, rejected each of these arguments. It held:

  • The proper standard is the “reasonably foreseeable admissibility” standard articulated in Doe v. Concord Police Department, 177 N.H. __, 2025 N.H. 48, and the trial court correctly applied that standard.
  • Credibility-related misconduct, even when over fifteen years old, can remain potentially exculpatory because it is reasonably foreseeable that such misconduct could be admissible to impeach an officer’s general credibility under N.H. R. Evid. 608(b).
  • Given the Chief’s and the district court’s prior determinations about Doe’s lack of truthfulness, his personnel file clearly contained potentially exculpatory evidence warranting EES placement.
  • Doe’s due process rights were adequately protected, and he could not base a due process claim on his own decision to forego an available appeal of the 2008 findings.

The Court affirmed the grant of summary judgment and found Doe’s remaining arguments insufficient to warrant discussion under Vogel v. Vogel, 137 N.H. 321 (1993), and Supreme Court Rule 25(8).

Factual and Procedural Background

A. Internal Investigations and Disciplinary Measures (2008)

In August 2008, the Liquor Commission initiated an internal investigation into Doe’s performance during an arrest. A second investigation soon followed, focused on “allegations of misleading false information” Doe gave, both verbally and in writing, during the first investigation. Investigators identified contradictions between Doe’s statements and those of other witnesses, including a Concord Police sergeant. Doe was suspended with pay during the investigation.

In December 2008, the Chief issued a detailed letter to Doe, concluding that:

  • The claims that his reports and interviews were inconsistent and contradicted witnesses were substantiated.
  • The discrepancies were not “inadvertent in nature” or the product of misinterpretation.
  • Some of Doe’s information was “not truthful,” compromising his “credibility and integrity.”

The Chief further indicated that:

  • County Attorneys throughout the state and the AGO would be notified of Doe’s conduct.
  • His name would be added to what was then known as the “Laurie List,” pursuant to a 2004 memorandum from then-Attorney General Peter Heed.
  • Disciplinary measures included a two-week suspension without pay and formal notification that Doe was considered a “potential ‘Laurie Issue.’”
  • Doe would be required to submit in writing any request from a defendant or defense counsel for information about his potential Laurie status, with copies to the district court.

Notably, the letter included an acknowledgment, handwritten over a crossed-out typewritten version, specifying that Doe’s agreement not to appeal the suspension would not constitute an admission of the alleged facts. Doe signed and initialed this modified language. Yet the letter also expressly notified Doe of his right to appeal the disciplinary action to the Personnel Appeals Board under RSA 273-D:3, III. He did not appeal.

B. Judicial Determination of a “Laurie Issue” (2009)

In January 2009, on a prosecutor’s motion, the Concord District Court (Boyle, J.) conducted an in camera review of Doe’s personnel file. The court determined that there was a “Laurie issue” with Doe that “would cause the Court to question his credibility.” The Chief subsequently forwarded this order to the AGO, reinforcing the formal recognition of credibility-related issues in Doe’s record.

C. Legislative Creation of the EES and Doe’s Listing (2021–2022)

In 2021, the legislature enacted RSA 105:13-d, which authorized the New Hampshire Department of Justice to maintain the Exculpatory Evidence Schedule. Under RSA 105:13-d, I, the EES is a “list of all current or former law enforcement officers whose personnel information contain potentially exculpatory evidence.” The Supreme Court has previously recognized that the long-standing “Laurie List” was later renamed and formalized as the EES. See N.H. Center for Public Interest Journalism v. N.H. Dep’t of Justice, 173 N.H. 648, 651 (2020).

After RSA 105:13-d came into effect, the AGO notified Doe that his name had been included on the EES and informed him of his statutory right to challenge that placement.

D. Declaratory Judgment Action and Summary Judgment

In March 2022, Doe filed a petition for declaratory judgment, seeking, among other relief, a determination that his name was not “appropriate for inclusion on the EES” under RSA 105:13-d. The defendants moved for summary judgment.

After a hearing, the Superior Court (Kissinger, J.) granted summary judgment for the defendants. It found that:

  • The Chief’s determination that Doe had been dishonest and the district court’s “Laurie issue” finding showed that Doe’s misconduct related to his general credibility and potentially triggered a prosecutor’s disclosure obligations in any criminal case where he might testify.
  • Neither the age of the misconduct nor Doe’s retirement as a law enforcement officer eliminated the “potentially exculpatory” character of the information.
  • Doe had constitutionally sufficient process, because he had participated in the investigations and had an opportunity to appeal the Chief’s conclusions but did not do so.

Doe moved for reconsideration, which the trial court denied. He then appealed to the New Hampshire Supreme Court.

Detailed Analysis

1. Precedential and Statutory Framework

a. The Exculpatory Evidence Schedule (EES) and RSA 105:13-d

RSA 105:13-d (2023) authorizes the New Hampshire Department of Justice to maintain the EES— a formal, statewide list of current and former law enforcement officers whose personnel records contain “potentially exculpatory evidence.” The statute implements, in a structured way, prosecutors’ obligations under Brady v. Maryland and Giglio v. United States to disclose exculpatory and impeachment material to criminal defendants. The EES operates as a systematic mechanism for tracking officers with known credibility or other issues that may affect criminal cases.

The case applies RSA 105:13-d to:

  • a former officer (Doe), and
  • misconduct that occurred more than fifteen years before the EES was formally created.

The Court assumes, consistent with the statutory text, that the EES properly includes both current and former officers and that pre-statute misconduct can qualify if it is still “potentially exculpatory.”

b. The “Laurie List” and Public Access

Before RSA 105:13-d, the Attorney General maintained what was commonly known as the “Laurie List” of officers with known potential impeachment material in their personnel files. In N.H. Center for Public Interest Journalism v. N.H. Dep’t of Justice, 173 N.H. 648 (2020), the New Hampshire Supreme Court addressed the public’s right of access to that list, ultimately contributing to its evolution into the statutorily grounded EES.

Doe’s due process argument is deeply tied to this evolution. He claimed that he would have appealed the 2008 findings had he known that his name would someday appear on a publicly accessible list like the EES. The Court, however, concludes that the original process he received was sufficient regardless of later developments in public access law.

c. Evidence Law: N.H. R. Evid. 608(b)

The Court’s analysis of whether Doe’s personnel information is “potentially exculpatory” is closely tied to N.H. R. Evid. 608(b), which governs impeachment by specific instances of conduct. Under Rule 608(b):

  • Specific instances of a witness’s conduct may, in the court’s discretion, be inquired into on cross-examination if they are probative of the witness’s character for truthfulness or untruthfulness.
  • Such instances are generally not provable by extrinsic evidence, but the ability to inquire about them in cross-examination can be highly significant for impeachment.

The Court explicitly affirms that prior findings of untruthfulness—like those in Doe’s case—are potentially admissible impeachment material under Rule 608(b), even many years after they occurred. That potential admissibility under the rules of evidence is central to determining whether such information is “potentially exculpatory” for EES purposes.

2. The “Potentially Exculpatory” Standard and Reasonably Foreseeable Admissibility

a. The Standard from Doe v. Concord Police Department

The Supreme Court relies heavily on its recent decision in Doe v. Concord Police Department, 177 N.H. __, 2025 N.H. 48. From that case, the Court quotes and adopts the following key principle:

“[T]he proper inquiry in this context is whether, assuming a future case were to arise, it is reasonably foreseeable that evidence of the plaintiff’s misconduct would be admissible. If it is not reasonably foreseeable that an officer's prior misconduct would be admissible if he or she is called to testify in a future case, then the officer’s inclusion on the EES would be inappropriate.” (quotation omitted).

Critically, the Court clarifies that:

“This standard does not require courts to assess the likelihood that a criminal case would be brought at which the former officer would be called as a witness.”

This statement directly addresses Doe’s central argument: he claimed that because his misconduct was fifteen years old and he was no longer a police officer (retired since 2011), it was essentially implausible that he would ever be called to testify in a way that would make his misconduct relevant.

The Court holds that this kind of probabilistic argument is legally irrelevant. The “reasonably foreseeable admissibility” test focuses on:

  • the nature of the misconduct, and
  • whether, if the officer testified, the misconduct would likely be admissible under the rules of evidence as exculpatory or impeachment material.

It does not require the court to forecast how likely it is that the officer will actually testify in some hypothetical future proceeding.

b. Application to Doe’s Misconduct

The Court emphasizes that Doe’s misconduct directly concerned truthfulness:

  • He was found to have provided false or misleading information in his police report and investigative interviews.
  • The Chief concluded that these were not inadvertent errors but deliberate untruths that compromised his credibility.
  • A district court judge, after reviewing his file, agreed that there was a “Laurie issue” that would cause the court to question Doe’s credibility.

Based on this record, the Supreme Court concludes that Doe’s misconduct “bears upon his general credibility and that it is reasonably foreseeable that evidence of it would be admissible.” That is, if Doe were ever called to testify in a criminal case, it is reasonably foreseeable that opposing counsel could use these established findings of untruthfulness to impeach his credibility under Rule 608(b).

As a result, Doe’s personnel file contains “potentially exculpatory” information within the meaning of RSA 105:13-d, and his placement on the EES is warranted.

3. Staleness, Retirement, and the Continuing Relevance of Credibility Evidence

a. The Plaintiff’s “Staleness” Argument

Doe argued that because the misconduct was more than fifteen years old and he had not been a police officer since 2011, it was no longer potentially exculpatory. In his view:

  • The chance that he would ever testify in a criminal case as a former officer was “essentially zero.”
  • Continued listing on the EES served no legitimate prosecutorial function and merely embarrassed him and his family.

b. The Court’s Response: Age and Status Do Not Extinguish Potential Exculpatory Value

The Supreme Court directly rejects this reasoning. It cites Doe v. Concord Police Department again, where the Court upheld EES inclusion based on an internal police investigation that had occurred twelve years earlier, finding the officer was untruthful. There, the Court held that such an old finding of untruthfulness could still be admissible as an “act[] probative of the plaintiff’s general credibility and character for truthfulness or untruthfulness” under Rule 608(b).

In Doe’s case, the Court extends that logic:

  • The mere fact that the misconduct is “over fifteen years old” does not mean it is no longer potentially exculpatory.
  • The misconduct goes directly to truthfulness, a core aspect of witness credibility that rarely becomes irrelevant solely due to the passage of time.
  • Retirement from law enforcement similarly does not negate the fact that Doe could, in principle, be called as a witness in a future criminal proceeding (e.g., concerning past events, or in some ancillary capacity), in which case his prior proven untruthfulness would be relevant impeachment material.

Thus, the Court finds “no error” in the trial court’s conclusion that Doe’s personnel file continues to contain potentially exculpatory evidence warranting his inclusion on the EES.

The broader implication is clear: for EES purposes, there is no fixed “expiration date” on findings of untruthfulness or serious credibility problems, at least where Rule 608(b) could support their use in impeachment. Neither the passage of time nor a change in the officer’s employment status, standing alone, suffices to remove the record from the EES.

4. Due Process and Waiver: Foregoing Available Procedures

a. The Plaintiff’s Due Process Position

Doe did not claim that the procedures actually afforded to him in 2008 and 2009 were deficient at the time. Instead, he framed his due process argument around hindsight: he asserted that if he had known in 2008 that the EES would become a public document, he would have appealed the findings of the internal investigation.

In essence, he argued that the future public consequences of those findings—public listing on the EES—rendered the earlier process constitutionally insufficient.

b. The Court’s Due Process Analysis (with Gantert)

The Court, citing Gantert v. City of Rochester, 168 N.H. 640, 648–50 (2016), applies the “fundamentally fair” standard typical of procedural due process analysis. The question is not whether the process was perfect or whether the plaintiff, in retrospect, would have preferred more or different procedures, but whether he had a meaningful opportunity to contest the allegations at the time they were made.

The Court notes three key facts:

  1. Doe had an opportunity during the internal investigations and afterwards to appeal the Chief’s determinations, including the finding that he was untruthful.
  2. The Chief explicitly told Doe that prosecutors within the state and the AGO would be informed of his misconduct and that his name would be treated as a potential “Laurie issue.”
  3. Doe participated in the investigations but elected not to appeal the findings to the Personnel Appeals Board, despite clear notice of that right.

Based on these facts, the Court concludes:

“[T]he process the [plaintiff] received was fundamentally fair and thus constitutionally adequate.”

It further agrees with the defendants’ argument that, having chosen not to appeal the finding that he was untruthful, Doe:

“cannot now premise a due process claim on his own decision to forego additional process to which he would otherwise have been entitled.”

In other words, Doe’s due process claim collapses under the doctrine of waiver: he cannot voluntarily bypass an available procedural safeguard and later claim that he was denied due process simply because the significance of that unchallenged finding has increased over time.

c. Public Disclosure vs. Original Process

Although not expressly framed in these terms, the decision implicitly rejects the idea that government must provide new or additional process each time the collateral consequences of a prior, valid finding evolve—here, the transition from confidential “Laurie list” status to public EES listing after N.H. Center for Public Interest Journalism and enactment of RSA 105:13-d.

The key point: due process attaches to the deprivation (or serious alteration of legal status), not to every subsequent change in the downstream visibility or reputational impact of that deprivation. Once Doe was fairly adjudicated to have engaged in untruthful conduct and declined to appeal, the state could rely on those unchallenged findings as the basis for later regulatory and disclosure schemes, such as EES inclusion.

5. Summary Judgment and Appellate Review

a. Summary Judgment Standard

The Court recites the statutory summary-judgment standard from RSA 491:8-a, III (2010):

A moving party is entitled to summary judgment “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits filed, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”

The Court reviews the trial court’s application of law to facts de novo, citing Taylor Community v. City of Laconia, 177 N.H. __, 2025 N.H. 38, ¶ 7.

b. No Genuine Issues of Material Fact

The key material facts were undisputed:

  • The findings of untruthfulness made by the Chief in 2008.
  • The district court’s 2009 order identifying a “Laurie issue” that would cause the court to question Doe’s credibility.
  • The existence and content of the disciplinary letter, including the notice of appellate rights.
  • Doe’s decision not to appeal to the Personnel Appeals Board.
  • The enactment of RSA 105:13-d and Doe’s subsequent listing on the EES.

The dispute centered entirely on legal conclusions:

  • Whether those accepted facts made the information “potentially exculpatory” under the correct standard.
  • Whether the age of the misconduct and Doe’s retirement precluded EES listing.
  • Whether the due process he had previously received was constitutionally adequate.

Because those are purely legal issues, the Court was well-positioned to resolve them on summary judgment without further fact-finding.

6. Other Precedents Cited and Their Influence

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

Doe invoked Doe v. N.H. Attorney General (Activity Logs), 176 N.H. 806 (2024), 2024 N.H. 50, arguing there was “no reasonably foreseeable case” in which the information in his personnel files would be admissible as exculpatory or impeachment evidence. While the current opinion does not elaborate on the full holding of Activity Logs, it treats that case as part of the same doctrinal framework concerning when information is “potentially exculpatory” for EES purposes.

The Court effectively harmonizes Activity Logs with Doe v. Concord Police Department, emphasizing that the focal question is not the likelihood of a future case but the foreseeability of admissibility if such a case arises.

b. N.H. Center for Public Interest Journalism v. N.H. Department of Justice, 173 N.H. 648 (2020)

N.H. Center for Public Interest Journalism is cited to note that the “Laurie List” was subsequently renamed and formalized as the EES. That case, which concerned public access to the list, underlies Doe’s concerns about reputational harm and public embarrassment, though the current decision does not revisit its substantive access holding.

By referencing this case, the Court situates Doe’s grievance within the broader transparency reforms that made EES listings publicly accessible. However, it signals that such transparency changes do not retroactively invalidate earlier, valid personnel determinations or require new process.

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

Gantert is cited for the principle that due process is evaluated in terms of fundamental fairness and the availability of meaningful procedures to contest adverse findings. The Court uses Gantert to support its conclusion that the internal investigation, notice of consequences, and unexercised right of appeal afforded Doe constitutionally adequate process.

d. Vogel v. Vogel, 137 N.H. 321 (1993) and Supreme Court Rules 20(3) and 25(8)

The Court indicates that it has considered Doe’s remaining arguments and found them unworthy of extended discussion, citing Vogel v. Vogel, 137 N.H. 321, 322 (1993), and Supreme Court Rule 25(8). It also notes that the case is decided “by way of this order” under Supreme Court Rule 20(3), rather than via a full, published opinion.

These references highlight that while the decision is procedurally structured as an order, it nonetheless articulates doctrinally important clarifications about EES standards, staleness, and due process.

7. Impact on Future Cases and the Law of Police Misconduct Disclosure

a. Long-Term Consequences of Credibility Findings

The decision sends a strong signal: findings of untruthfulness in law enforcement personnel records can have indefinite consequences. Officers—current or former—should expect that:

  • Credibility-related misconduct will likely result in long-term or permanent EES inclusion.
  • Retirement or career changes will not “reset” or erase the exculpatory or impeachment value of those findings.
  • The relevant question is always whether admissibility of that misconduct is reasonably foreseeable under the rules of evidence, not whether the officer’s law-enforcement career has ended.

This will likely increase the stakes for officers in internal disciplinary proceedings involving allegations of dishonesty, as such findings now clearly carry lifelong implications for public reputation and potential courtroom credibility.

b. Guidance for Prosecutors and Courts Applying RSA 105:13-d

For prosecutors and courts, the decision refines and stabilizes the standard for EES inclusion:

  • They should ask: “If this officer (current or former) were called to testify in a future case, is it reasonably foreseeable that this misconduct would be admissible as impeachment or exculpatory evidence?”
  • They should not ask: “How likely is it that this officer will actually testify in such a case?”

This approach creates a relatively objective, rule-based inquiry focused on evidentiary admissibility rather than uncertain predictive judgments about future case patterns or witness usage.

C. Due Process and Strategic Choices in Internal Proceedings

The decision also has significant implications for due process litigation related to EES listings:

  • Officers who elect not to challenge internal findings—especially of untruthfulness— may find themselves effectively barred from later arguing that those findings lack due process, even when new statutory schemes (like RSA 105:13-d) heighten the reputational impact of those findings.
  • Courts will view the presence of available internal appeals, grievance procedures, or personnel board reviews as strong evidence that any due process claim has either been satisfied or waived.
  • Changes in public access or statutory framing (from “Laurie List” to EES) are unlikely to be deemed new “deprivations” that independently trigger fresh due process rights if they merely expose or formalize already valid, unchallenged determinations.

d. Potential Influence Beyond New Hampshire

While the decision is grounded in New Hampshire statutes and precedents, the issues it addresses—Brady/Giglio disclosures, “Brady lists” or “Laurie lists,” long-term tracking of officer credibility issues, and due process in employment discipline—are shared across jurisdictions. Other states grappling with similar lists and public-access questions may look to this opinion as persuasive authority on:

  • how to define “potentially exculpatory,”
  • whether and how to consider the age of misconduct, and
  • what level of process is required before an officer’s credibility record can be publicly catalogued and used in criminal proceedings.

Complex Concepts Simplified

1. Exculpatory Evidence and Impeachment

Exculpatory evidence is information that may help show a criminal defendant is not guilty, or is less culpable, or that undermines the credibility of a key prosecution witness. Under Brady and Giglio, prosecutors must disclose such evidence.

Impeachment evidence is a type of exculpatory evidence used to attack a witness’s credibility—such as proof that an officer has lied in the past. That kind of evidence can make a jury less likely to believe the officer’s testimony.

2. The Exculpatory Evidence Schedule (EES)

The EES is a state-maintained list of officers whose personnel files contain information that may be exculpatory in criminal cases—for example, findings that they lied in reports or investigations. When an officer is on the EES, prosecutors are put on notice that they may need to disclose that information to defense counsel.

3. “Potentially Exculpatory” and “Reasonably Foreseeable Admissibility”

An officer’s personnel information is “potentially exculpatory” if there is a reasonable, realistic possibility that it could be used in court to help a defendant—either by directly exonerating the defendant or by undermining a prosecution witness’s credibility.

Under the “reasonably foreseeable admissibility” standard:

  • The question is: “If this officer testified in a future case, is it reasonably foreseeable that this misconduct would be admissible under the rules of evidence?”
  • The question is not: “How likely is it that this officer will actually testify in the future?”

4. Impeachment by Specific Instances of Conduct (Rule 608(b))

Rule 608(b) of the New Hampshire Rules of Evidence allows lawyers, with the judge’s permission, to ask a witness about specific past actions that indicate they may be dishonest—for example, lying in an official report. The lawyer cannot usually prove those instances with separate documents or witnesses, but can use questions on cross-examination to show the jury that the witness may not be truthful.

Because Doe’s misconduct involved lying in official contexts, it is exactly the kind of conduct that Rule 608(b) makes potentially available for impeachment.

5. Due Process and Waiver

Due process requires that before the government makes a decision that seriously affects a person’s rights or legal status, that person must have fair procedures—usually including notice of the allegations and a meaningful opportunity to respond or appeal.

Waiver in this context means that if you are offered a fair procedure (like an appeal to a personnel board) and you knowingly choose not to use it, you cannot later complain that you were denied due process. The Court holds that this is what happened in Doe’s case.

Conclusion

The Supreme Court’s decision in John Doe v. New Hampshire Liquor Commission, Bureau of Enforcement & a. solidifies and clarifies key principles governing the Exculpatory Evidence Schedule under RSA 105:13-d:

  • Standard for EES Inclusion: The controlling question is whether, if the officer were to testify in a future case, it is reasonably foreseeable that evidence of the officer’s prior misconduct would be admissible as exculpatory or impeachment evidence. Courts are not to weigh the likelihood that such testimony will actually occur.
  • Staleness and Retirement: The passage of time and an officer’s retirement do not, by themselves, strip credibility-related misconduct of its potentially exculpatory nature. Particularly for acts of untruthfulness, there is no fixed expiration date for EES purposes.
  • Due Process and Waiver: When an officer is given notice, participates in internal investigations, and has a clear right to appeal adverse findings—but chooses not to—he or she cannot later assert a due process violation merely because those unchallenged findings now carry heightened public consequences, such as EES listing.
  • Integration of Old and New Frameworks: Historic “Laurie list” determinations and internal disciplinary findings remain valid and can serve as the basis for modern EES inclusion, even after legislative codification and increased public access.

Collectively, these holdings reinforce the durability of credibility determinations in law enforcement personnel files and underscore the importance of timely, robust participation in internal review and appeal processes. For prosecutors, defense lawyers, and courts, the decision provides clear, administrable guidance on when and why officers—current and former—belong on the EES.