Part I, Article 2-b Enshrines Privacy: Limiting In Camera Review of Privileged Records Held by Private Entities

Introduction

The Supreme Court of New Hampshire’s decision in State v. Zarella, 2025 N.H. 20 (May 1, 2025), marks a turning point in the balance between a criminal defendant’s right to evidence and an individual’s constitutional right to privacy. The case arises from a motion by the defendant, Gene L. Zarella, to obtain in camera review of his accuser K.R.’s private counseling and mental‐health records held by third‐party providers. K.R., joined by her counselors as intervenors, invoked her new state constitutional right to privacy under Part I, Article 2-b and various statutory privileges to quash the production orders. The key issues are: (1) whether the 2018 right-to-privacy amendment alters the test for disclosure of privileged records held by private entities, and (2) if so, what new standard applies.

Summary of the Judgment

By a unanimous opinion authored by Justice Donovan, the Court held that:

Part I, Article 2-b of the New Hampshire Constitution creates a fundamental privacy right that abrogates the earlier holding in State v. Cressey, 137 N.H. 402 (1993), which had applied the Gagne–Ritchie “reasonable probability” test to records in private hands.
For records privileged under RSA chapter 173-C (sexual‐assault and domestic‐violence counseling), defendants must follow the specific “substantial likelihood” procedures set out in RSA 173-C:5.
For physician-, psychologist-, and psychotherapist-patient records privileged under RSA 329-B:26 and RSA 330-A:32, defendants must show an “essential need”—i.e., a compelling justification for disclosure and unavailability of the information from any other source.
Before ordering production or disclosure of any private records, trial courts must give notice to the individual whose records are at issue and an opportunity to object, consistent with victims’ statutory rights.
The trial court’s order denying K.R.’s motion to quash is vacated, and the case is remanded under these new standards.

Analysis

1. Precedents Cited

Pennsylvania v. Ritchie (480 U.S. 39, 1987): Established a Fourteenth Amendment due-process balancing test for in camera review of confidential state-held child-abuse records, requiring a showing of “reasonable probability” that favorable material exists.
State v. Gagne (136 N.H. 101, 1992): Adopted Ritchie under the State Constitution, holding that defendants must establish a reasonable probability that records are relevant and material to defense to trigger in camera review.
State v. Farrow (116 N.H. 731, 1976): Held that privileged material essential to cross-examination must be disclosed if “reasonably necessary” for a fair confrontation of witnesses.
State v. Cressey (137 N.H. 402, 1993): Extended Gagne’s standard to privileged records held by private third parties, a step now overruled by Zarella under Article 2-b.
State v. Graham (142 N.H. 357, 1997) and State v. Hoag (145 N.H. 47, 2000): Clarified Gagne’s threshold showing must be more than bare conjecture but need not prove the theory true.
State v. Chandler (176 N.H. 216, 2023): Noted courts must account for Article 2-b when deciding disclosure after in camera review.
Attorney-client privilege cases such as McGranahan v. Dahar (119 N.H. 758, 1979) and physician-patient privilege precedents like In re Grand Jury Subpoena (Medical Records of Payne) (150 N.H. 436, 2004) and In re Search Warrant (Med. Records of C.T.) (160 N.H. 214, 2010): Inform the development of “essential need” analysis for piercing statutory privileges.

2. Legal Reasoning

The court’s reasoning unfolds in three steps:

State constitutional right to privacy: Article 2-b recognizes “an individual's right to live free from governmental intrusion in private or personal information.” This right is natural and inherent and must be protected unless the legislature has expressly limited it within constitutional bounds.
Limitation of Gagne and Ritchie: Both decisions rest on the government’s possession of evidence and the prosecution’s due-process/Brady obligations. Absent state action (i.e., private‐entity records), there is no Fourteenth Amendment trigger for Ritchie/Gagne. Cressey’s extension of Gagne to private records is therefore disapproved.
Standards for privileged records:
- RSA 173-C:5 supplies a tailored, statutory scheme for sexual‐assault and domestic‐violence counseling records, requiring “substantial likelihood” of favorable admissible evidence.
- Privileged mental‐health records under RSA 329-B:26 and RSA 330-A:32 are pierced only upon an “essential need” showing—compelling justification plus no alternative source—drawing on established privilege-piercing analysis.
- Trial courts must provide notice to the individual whose records are sought, respecting victims’ rights under RSA 21-M:8-k and Article 2-b’s promise of privacy.

3. Impact on Future Cases

State v. Zarella will reshape criminal discovery and victims’ privacy in several ways:

Defendants can no longer rely on the Gagne reasonable-probability test to obtain private counseling or medical records; instead, they must invoke specific statutory or essential-need procedures.
Counselors, therapists, medical professionals, and crime victims gain reinforced privacy protections, likely reducing non-consensual intrusions into sensitive records.
Trial courts must implement uniform notice procedures, ensuring that individuals are informed and can assert their privacy rights or privileges before any in camera review or disclosure.
The decision may prompt legislative refinements of RSA 329-B and RSA 330-A to clarify or adjust the “essential need” standard within constitutional limits.

Complex Concepts Simplified

In camera review – A private, confidential examination by a judge of documents to decide if they should be disclosed to the parties.
State action doctrine – Federal constitutional protections apply only when the government, not private parties, is involved.
Brady obligations – Requirement that the prosecution disclose to the defense any evidence favorable to the accused that is material to guilt or punishment.
Statutory privileges – Legal rules (e.g., RSA 173-C, RSA 329-B:26, RSA 330-A:32) that protect certain communications (counselor-client, physician-patient, psychotherapist-patient) from disclosure without consent or court order.
Essential need standard – A two-part test requiring (1) compelling justification for piercing the privilege and (2) unavailability of the same information from another source.
Substantial likelihood standard – Under RSA 173-C:5, a defendant must show a substantial likelihood that privileged counseling records contain admissible, favorable evidence.

Conclusion

State v. Zarella refocuses the work of courts and litigants on the New Hampshire Constitution’s recently recognized right to privacy. By overruling Cressey’s blanket application of Gagne to private records and prescribing discrete, statutory or essential-need frameworks for privileged materials, the Court ensures that victims and patients are shielded from unwarranted intrusions while preserving defendants’ access to critical evidence under carefully defined conditions. The decision underscores the interplay of constitutional guarantees, statutory privileges, and judicial supervision in safeguarding both privacy and due process.