Post-Zarella: Essential-Need and Procedural Protections as Preconditions to Appellate Review of Privately Held Privileged Records

I. Introduction

In State of New Hampshire v. Tailor Lemieux (N.H. Sept. 15, 2026) (order under Sup. Ct. R. 20(3)), the defendant appealed jury convictions for multiple counts of second degree assault (RSA 631:2, I(d), (f)), criminal threatening (RSA 631:4, I(d)), and endangering the welfare of a child (RSA 639:3; RSA 626:8). The allegations arose from abuse of four minor stepchildren, including choking, physical assaults, threats, and a household practice of locking children in bedrooms overnight with restricted bathroom access.

The appeal presented three principal issues: (1) whether certain testimony about children “nodding” in agreement was admissible under the present sense impression exception to hearsay; (2) whether the evidence was sufficient to prove child endangerment based on overnight confinement without safe egress; and (3) how appellate review should proceed when a defendant challenges a trial court’s in camera review and nondisclosure of privileged records, particularly records held by private entities after State v. Zarella.

II. Summary of the Opinion

The Supreme Court of New Hampshire affirmed. It held:

  • The trial court erred by admitting testimony that other children nodded in agreement during a medical visit under N.H. R. Ev. 803(1), because the nods were not “essentially contemporaneous” with the abuse; however, the error was harmless beyond a reasonable doubt.
  • The evidence was sufficient to support the child endangerment conviction: jurors could infer that adults understand the risk of confining children overnight without reasonable egress and that the defendant knowingly created that risk.
  • Regarding privileged records, the Court reviewed the government-held records and found no unsustainable exercise of discretion. As to privately held privileged records, the Court declined to review them because, under State v. Zarella, additional “essential need” and procedural protections were implicated, and the defendant failed to adequately brief how appellate review or remand should proceed under Zarella.

III. Analysis

A. Precedents Cited

1. State v. Rouleau

State v. Rouleau, 176 N.H. 400 (2024), 2024 N.H. 2, supplied two controlling frameworks: (i) the standard of review for evidentiary rulings—unsustainable exercise of discretion—and (ii) the multi-factor approach for determining whether an evidentiary error is harmless beyond a reasonable doubt. The Court in Lemieux mirrored Rouleau by assessing the strength of the State’s case, the cumulative nature of the nodding evidence, corroboration, prominence at trial, and the absence of reliance in closing argument.

2. State v. Noucas

State v. Noucas, 165 N.H. 146 (2013), was cited for the allocation of burdens under the unsustainable exercise standard: the defendant must show the ruling was untenable or unreasonable and prejudicial. Although the Court agreed error occurred, the appeal ultimately turned on the State’s harmless-error burden.

3. Simpkins v. Snow

Simpkins v. Snow, 139 N.H. 735 (1995), framed both (i) the baseline rule that hearsay is inadmissible absent an exception and (ii) the crucial limitation on N.H. R. Ev. 803(1): present sense impressions must be “essentially contemporaneous” with the event perceived. Lemieux applied Simpkins directly to conclude that agreement-nods about past abuse are not contemporaneous with the assaults and therefore fall outside Rule 803(1).

4. State v. Seibel

State v. Seibel, 174 N.H. 440 (2021), supplied the de novo standard for sufficiency challenges and the rule that evidence and reasonable inferences are viewed in the light most favorable to the State, evaluating items in the context of the entire case. The Court used Seibel to justify inference-based proof of the defendant’s awareness of risk from the overnight confinement practice.

5. State v. Girard

State v. Girard, 173 N.H. 619 (2020), governed review of discovery management decisions and described a relevance/materiality-oriented approach used by the trial court when determining whether records contain “material and relevant evidence.” Lemieux accepted that approach for government-held records, concluding the trial court’s handling was sustainable.

6. State v. Warren

State v. Warren, 177 N.H. 196 (2025), 2025 N.H. 5, supported the Court’s practice of reviewing the same records on appeal when a defendant claims an unsustainable ruling regarding disclosure of privileged records—reinforcing that appellate review is possible, but conditioned by the applicable privilege-piercing standards.

7. State v. Zarella

State v. Zarella, 177 N.H. 328 (2025), 2025 N.H. 20, was pivotal. It “extended” privilege-piercing jurisprudence to certain privately held privileged records (including under RSA 329-B:26 and RSA 330-A:32) and required a defendant to establish an essential need for the records sought. In Lemieux, because Zarella issued after the trial court’s orders, the trial court had not applied Zarella to privately held records. On appeal, rather than conduct its own review without the “protections” Zarella prescribes, the Court declined to review those private records where the defendant did not adequately develop the argument for how Zarella should be implemented at the appellate stage (including notice and opportunity to be heard for the children, as the State urged).

8. State v. Blackmer

State v. Blackmer, 149 N.H. 47 (2003), anchored the Court’s refusal to address an argument “not sufficiently developed for appellate review.” The Court used this principle to reject the defendant’s request for appellate review of private privileged records without a fully briefed Zarella-compliant pathway and likewise declined to remand absent adequate briefing on whether remand was required.

B. Legal Reasoning

1. Hearsay and present sense impression (N.H. R. Ev. 803(1))

The nurse’s testimony that children nodded in agreement functioned as out-of-court “statements” offered for their truth (N.H. R. Ev. 801(c)). The trial court admitted them as present sense impressions under Rule 803(1), but the Supreme Court held that was incorrect because the nods concerned past assaults and were not made while or immediately after the event was perceived, as Simpkins v. Snow requires.

The Court then conducted a constitutional-grade harmless-error analysis (placing the burden on the State) and found the error harmless because: the nod evidence was cumulative of detailed in-court child testimony; corroborating evidence existed (injuries, evidence of locked rooms); the challenged testimony was a miniscule portion of the State’s case; and it was not emphasized in closing argument.

2. Sufficiency of evidence for child endangerment based on confinement

Applying State v. Seibel, the Court reasoned that the jury could infer “knowledge” and “endangerment” from the circumstances: confining children overnight without a safe escape, while adults slept and were not alert, created a risk in case of fire or emergency. The Court rejected the defendant’s contention that the State had to prove a specific emergency would arise or that parents would be unable to respond. Instead, it treated the prohibited risk as one a rational jury could find inherent in the conduct and within common adult awareness—especially acute for children.

3. In camera review of privileged records—government versus private holders after Zarella

For records in the government’s possession, the Court followed Girard/Warren: it reviewed the records and upheld the trial court’s nondisclosure decisions under a sustainability lens.

For privately held privileged records, the Court treated Zarella as controlling law that could not be “disregarded,” and emphasized that appellate review cannot proceed as if the Zarella threshold and protections do not exist. Because the defendant did not rebut the State’s Zarella-based arguments (including the request for notice/opportunity to be heard) and did not adequately brief whether remand was necessary to litigate those threshold issues, the Court declined both review and remand.

C. Impact

  • Evidence law (hearsay): The decision reinforces a narrow reading of Rule 803(1): statements (including nonverbal conduct) recounting historical abuse generally will not qualify as present sense impressions. Trial courts are put on notice that “contemporaneousness” is a real constraint, not a formality.
  • Harmless error in child-abuse prosecutions: The Court’s analysis illustrates how cumulative corroborated testimony can render some erroneous admissions harmless, particularly when the challenged evidence is not central and is not highlighted in summation.
  • Child endangerment theory: The holding supports prosecutions based on inherently dangerous confinement practices (lack of egress at night), allowing juries to infer awareness of risk without proof of an actual emergency.
  • Privileged-record litigation post-Zarella: The most durable procedural takeaway is appellate restraint: where privately held privileged records are sought, defendants should expect to (i) satisfy the Zarella “essential need” requirement, (ii) address any procedural protections (including notice/opportunity to be heard for privilege holders), and (iii) fully brief whether remand is required. Failure to do so can forfeit appellate review and remand.

IV. Complex Concepts Simplified

  • “Unsustainable exercise of discretion”: An appellate court will not overturn an evidentiary or discovery ruling just because it would have ruled differently; it reverses only if the decision lacked a reasonable basis and prejudiced the defendant.
  • Hearsay and “present sense impression” (Rule 803(1)): Hearsay is an out-of-court statement offered for its truth. A present sense impression is a narrow exception for statements describing an event while it is happening or immediately after—because immediacy reduces the chance of reflection or fabrication.
  • “Harmless beyond a reasonable doubt”: Even if the judge made a legal mistake, the conviction stands if the State proves the mistake did not affect the jury’s verdict.
  • Sufficiency of the evidence: The question is not whether the appellate court believes the witnesses; it is whether any rational juror, viewing the evidence most favorably to the State, could find guilt beyond a reasonable doubt.
  • In camera review and privilege-piercing: A judge may privately examine confidential records to decide whether any portion must be disclosed. After Zarella, privately held privileged records require a heightened showing—an “essential need”—before the privilege is pierced.

V. Conclusion

State of New Hampshire v. Tailor Lemieux affirms serious convictions while delivering three instructive rules: (1) noncontemporaneous accounts of past abuse—even conveyed through nods—do not fit the present sense impression exception; (2) confining children overnight without safe egress can support a finding of knowing endangerment based on reasonable inferences about risk; and (3) most significantly for privilege litigation, Zarella meaningfully constrains how privately held privileged records may be pursued on appeal— requiring an “essential need” showing and associated procedural protections, and placing a premium on careful, developed appellate briefing to obtain review or remand.