Prejudice, Not Error: New Hampshire Supreme Court Reaffirms That Cumulative Outcry and Treating-Physician Testimony Do Not Establish Ineffective Assistance Absent a Reasonable Probability of a Different Result

Introduction

In State of New Hampshire v. Rey DeJesus (No. 2023-0400, Aug. 12, 2025), the New Hampshire Supreme Court affirmed the denial of a motion for new trial that alleged ineffective assistance of counsel (IAC). Issued as an order pursuant to Supreme Court Rule 20(3), the decision addresses two recurring IAC themes in criminal trials: (1) counsel’s failure to object to a “fresh complaint” type out-of-court statement (a text message to a friend stating “I just got raped”), and (2) counsel’s failure to object when a treating emergency room physician, called as a fact witness, gave testimony on cross-examination that resembled expert opinion regarding strangulation and the absence of visible trauma.

The Court resolved both claims on the prejudice prong without deciding whether counsel’s performance was deficient. This prejudice-first approach, grounded in Part I, Article 15 of the New Hampshire Constitution and informed by Strickland v. Washington, underscores that even where an error may have occurred—such as admission of hearsay—the defendant must show a reasonable probability that the outcome would have been different. The Court also reiterated a strict preservation rule: IAC sub-arguments not raised in the motion for new trial will not be considered on appeal.

Background

The charges arose from a late-night episode in 2019 at the victim’s apartment, where the defendant—a family friend—was present. After socializing and playing dominoes, an encounter occurred in the victim’s bedroom. The State charged the defendant with eight counts of aggravated felonious sexual assault (AFSA) and two counts of felonious sexual assault (FSA), alleging five separate acts under alternative theories (use of force or lack of consent). The AFSA counts included two counts of digital penetration, one count of intercourse, and one count of cunnilingus; the FSA counts alleged the defendant put his mouth on the victim's breast under alternative theories.

The defense conceded a sexual encounter occurred but argued it was consensual and that the victim later fabricated elements to explain a regretted encounter. The jury convicted on the AFSA counts alleging intercourse and cunnilingus, but acquitted on both AFSA counts alleging digital penetration and on both FSA counts. After trial, with new counsel, the defendant moved for a new trial, claiming ineffective assistance by trial counsel, including failures to object to certain testimony. The Superior Court (Temple, J.) denied the motion after a hearing. This appeal followed.

Summary of the Opinion

The Supreme Court affirmed. The Court:

Held that, even assuming the victim’s friend’s testimony repeating the text “I just got raped” was inadmissible hearsay and should have drawn an objection, the defendant failed to show prejudice because the testimony was cumulative of numerous immediate reports (to the victim’s mother, boyfriend, and the sexual assault nurse examiner) that the jury already heard.
Declined to address a separate, newly raised IAC theory (failure to object to the victim’s own testimony that she sent the text) as unpreserved, because it was not included in the motion for new trial.
Held that any failure to object to the treating physician’s cross-examination testimony describing “strangulation” and the fact that an absence of visible symptoms can be “not inconsistent” with strangulation did not prejudice the defense, given the totality of evidence, including multiple witnesses describing the victim’s immediate, distraught demeanor.
Resolved both IAC claims on the prejudice prong and therefore did not decide whether counsel’s performance was constitutionally deficient.

The Court expressly applied New Hampshire’s IAC framework under Part I, Article 15, using federal cases, including Strickland, for guidance, and reviewed the ultimate constitutional determination de novo while deferring to supported trial-court factual findings.

Analysis

Precedents Cited and Their Influence

State v. Chandler, 176 N.H. 216 (2023): The Court cited Chandler for the two-pronged IAC framework and for the mixed standard of review: factual findings are not disturbed unless unsupported or legally erroneous, while the ultimate IAC determination is reviewed de novo. This sets the analytical scaffold.
State v. Eschenbrenner, 164 N.H. 532 (2013): Cited for the “strong presumption” of reasonable professional assistance and the definition of prejudice as a “reasonable probability” sufficient to undermine confidence in the outcome. The Court relied on Eschenbrenner to justify resolving the appeal solely on prejudice where that prong fails.
State v. Fitzgerald, 173 N.H. 564 (2020): Emphasized that failure to establish either prong ends the analysis. This authority supports the Court’s decision not to reach deficient performance once prejudice was found lacking.
Strickland v. Washington, 466 U.S. 668 (1984): Provided the benchmark standard that IAC claims turn on whether counsel’s conduct undermined the adversarial process to such an extent that the trial’s result cannot be trusted. The Court quoted Strickland to remind that not every error—or even probable error—justifies a new trial absent a substantial effect on outcome confidence.
State v. Leroux, 175 N.H. 204 (2022): Applied to the preservation issue. The Court declined to entertain an IAC sub-argument not raised in the motion for new trial, reinforcing the principle that the appellant bears the burden to demonstrate preservation of the specific arguments made on appeal.
New Hampshire Constitution Part I, Article 15; U.S. Const. amends. VI, XIV: The Court reiterated that the State constitutional standard governs and is identical to the federal Strickland test, with federal authority serving as guidance.
Supreme Court Rule 20(3): The case was resolved “by way of this order,” signaling a streamlined disposition that nevertheless provides guidance on applying the prejudice prong to common IAC scenarios.

Legal Reasoning

1. Failure to Object to Friend’s Testimony About the “I Just Got Raped” Text

The trial court characterized the friend’s testimony as “inadmissible hearsay” that “likely should have been objected to,” but nonetheless denied relief for lack of prejudice because the victim herself had already described the assaults and multiple other witnesses also testified that the victim reported rape that night. The Supreme Court agreed on prejudice:

The victim had already testified that she sent the text, and the friend’s testimony was “limited.”
Other witnesses—the mother, the boyfriend, and the sexual assault nurse examiner—each testified that the victim reported rape on the same night.
Given those multiple sources, the friend’s testimony was cumulative. Excluding it would not create a “reasonable probability” of a different verdict.

Importantly, the Court did not resolve whether counsel’s failure to object was deficient or whether the testimony fit any hearsay exception; it assumed the error arguendo and held that prejudice was not shown. Thus, even an erroneous admission of hearsay will not sustain an IAC claim absent a concrete showing that the verdict likely would have changed without it.

The Court also declined to consider a distinct IAC argument—that counsel should have objected to the victim’s own testimony that she sent the text—because it was not included in the new trial motion. This reinforces that precise IAC grounds must be raised below to be reviewable on appeal.

2. Failure to Object to Treating ER Doctor’s Cross-Examination Testimony on Strangulation

The defense called the ER doctor as a fact witness to elicit that she observed no neck trauma and did not order further screening. On cross, the doctor testified:

The victim reported “strangulation,” which the doctor defined broadly as holding or pressure applied to the neck.
The absence of symptoms is “not inconsistent with somebody who has been strangled.”

The defendant argued on appeal that these statements amounted to expert opinion testimony and, because the State did not qualify the witness as an expert during the defense’s case, counsel was ineffective for failing to object. Again, without deciding whether the testimony was expert in nature or whether counsel was deficient for failing to object, the Court resolved the claim on prejudice:

The jury observed the victim’s testimony and assessed her credibility firsthand.
Multiple witnesses described the victim’s immediate, distraught demeanor: “trembling,” “tears pouring,” “kind of hysterical,” “heavily crying,” and “obviously very distraught.”
Against this evidentiary backdrop, the doctor’s cross-examination statements did not “meaningfully bolster” the victim’s credibility or otherwise create a reasonable probability of a different outcome.

The Court therefore affirmed on the ground that the defendant failed to establish actual prejudice under the second Strickland prong.

Impact and Practical Implications

A. Prejudice-First Resolution of IAC Claims

The decision reinforces a durable New Hampshire practice: appellate courts may dispose of IAC claims solely on prejudice. Litigants should expect that even clear trial errors will not yield relief unless they can show those errors mattered to the verdict in a meaningful way. This is especially true when the evidence in question is cumulative of other admitted evidence.

B. Cumulative Outcry Evidence Makes Prejudice Hard to Prove

Where multiple witnesses testify to a victim’s immediate report of sexual assault (e.g., parent, intimate partner, medical professional), additional testimony repeating the same core assertion (such as a text to a friend) will often be deemed cumulative. In IAC posture, failure to object to one repeated statement is unlikely to demonstrate a reasonable probability of a different result if numerous similar statements were already before the jury.

C. Treating-Physician Testimony on Cross and “Dual-Role” Risks

Treating clinicians are frequently called as fact witnesses, but their medical explanations can shade into expert opinion. DeJesus confirms the practical reality that, even if opinion-type testimony emerges on cross without formal qualification, reversal on IAC grounds will be an uphill battle unless that testimony was central and outcome-determinative. Trial counsel on both sides should proactively address the scope of treating-physician testimony via motions in limine and clear role delineation to avoid disputes and preserve objections.

D. Preservation Is Strict: Raise Specific IAC Grounds in the New Trial Motion

The Court reiterated that appellants bear the burden to demonstrate that each specific IAC contention was raised below. General allegations will not preserve distinct sub-issues (e.g., failing to object to the friend’s testimony is not the same as failing to object to the victim’s testimony about sending the text). This encourages meticulous development of the IAC record in the trial court.

E. Evidentiary Strategy and the Mixed Verdict

Although not expressly relied upon by the Court, the jury’s mixed verdict—convictions on intercourse and cunnilingus counts, acquittals on digital penetration and FSA counts—underscores a jury attentive to distinctions in the evidence. That kind of mixed result will often weaken an appellate claim that a single evidentiary item tipped the scales across the board, and it illustrates why demonstrating prejudice from a single alleged failure to object is challenging when jurors evidently sifted the evidence and drew nuanced conclusions.

Complex Concepts Simplified

Ineffective Assistance of Counsel (IAC): To win, a defendant must show both (1) deficient performance—counsel’s work fell below an objective standard of reasonableness—and (2) prejudice—a reasonable probability that, but for counsel’s errors, the result would have been different. Courts can end the inquiry at either prong.
Reasonable Probability (Prejudice): Not merely possible or conceivable change; rather, a probability sufficient to undermine confidence in the verdict. It is less than “more likely than not,” but it must be substantial enough to cast doubt on the outcome’s reliability.
Cumulative Evidence: Evidence that repeats facts already established by other testimony. Excluding one cumulative item rarely changes the verdict, making prejudice difficult to prove.
Hearsay and Outcry Statements: Hearsay is an out-of-court statement offered for its truth. Some “outcry” statements may be admissible under exceptions (e.g., statements for medical diagnosis/treatment) or admitted without objection. In DeJesus, the friend’s testimony was treated as inadmissible hearsay, but the claim failed for lack of prejudice.
Treating Physician vs. Expert Witness: A treating physician can testify as a fact witness about observations and patient history. When the physician draws on specialized knowledge to explain medical concepts or causation, that can become expert testimony, usually requiring qualification. Courts often manage “dual-role” witnesses to avoid juror confusion and to ensure proper foundations.
Preservation: Appellate courts generally address only those arguments specifically raised and ruled upon below. For IAC, the precise failures alleged must be included in the new trial motion; otherwise they are unpreserved.
Supreme Court Rule 20(3) Orders: The New Hampshire Supreme Court can resolve a case “by way of order” after full briefing and argument. Although streamlined, such orders can provide meaningful guidance on recurring issues like IAC prejudice.

Conclusion

State v. DeJesus offers a clear, practice-focused reaffirmation of the prejudice requirement in ineffective assistance claims. The Court held that the failure to object to a friend’s testimony repeating the victim’s immediate text message accusation did not prejudice the defense because the statement was cumulative of other immediate reports the jury already heard. Similarly, the failure to object to a treating physician’s cross-examination testimony touching on strangulation and symptomatology did not undermine confidence in the verdict given the totality of the evidence, including multiple witnesses describing the victim’s distraught condition.

Two broader lessons emerge. First, cumulative outcry evidence is unlikely to carry IAC prejudice—even if some of it might be inadmissible—when the same fact is established repeatedly through other witnesses. Second, potential expert-style testimony from treating clinicians must be specifically targeted and preserved, but absent a showing that it moved the needle with the jury, prejudice will be difficult to establish.

Finally, DeJesus underscores a procedural imperative: IAC arguments must be developed with specificity in the motion for new trial. New sub-arguments raised for the first time on appeal will not be considered. As a result, defense counsel seeking post-trial relief must build a meticulous record, and trial counsel should anticipate and proactively address recurring evidentiary risks—especially with outcry testimony and dual-role medical witnesses—to minimize downstream IAC exposure.

Disposition: Affirmed. Justices MacDonald, C.J., Bassett, Donovan, and Countway concurred. Clerk: Timothy A. Gudas.