Speculation Is Not Enough: A Defendant Seeking a Jury View Must Build a Record Showing the View Will Be Accurate and Helpful

1. Introduction

In State of New Hampshire v. Kierran Pierce (N.H. Mar. 18, 2025), the Supreme Court of New Hampshire affirmed convictions for two counts of aggravated felonious sexual assault and one count of felonious sexual assault arising from allegations that the defendant sexually assaulted a young child during a short visit to a mobile home in September 2016.

On appeal, the defendant challenged three trial-court rulings:

  • Denial of a motion for a jury view of the premises;
  • Denial of a motion to set aside the verdicts as against the weight of the evidence;
  • Alleged error in the trial court’s in camera review and partial disclosure of the victim’s counseling records.

The court’s order is most practically significant for its treatment of requests for a “view” as evidence: a party seeking a view must make a concrete evidentiary showing—beyond speculation—that the premises are sufficiently unchanged and that the view will assist the jury without misleading it.

2. Summary of the Opinion

The court affirmed across the board:

  • View: No unsustainable exercise of discretion in denying the defendant’s motion because he failed to establish, or even proffer, that the property’s current condition was materially the same as at the time of the alleged assaults, and thus failed to demonstrate admissibility and helpfulness.
  • Weight of the evidence: Minor inconsistencies about timing and who was present were credibility issues for the jury and did not make the verdicts “conclusively against the weight of the evidence.”
  • In camera review: The court presumed the trial judge applied State v. Gagne as clarified by State v. Girard, and, after independently reviewing the counseling records, held that no additional undisclosed materials met the disclosure standard.

3. Analysis

A. Precedents Cited

1) Jury view requests and appellate review of discretionary rulings

  • State v. Pierce, 176 N.H. 487 (2024), 2024 N.H. 12, ¶25
    The court relied on this recent articulation that a trial court’s decision whether to allow a view is reviewed for an “unsustainable exercise of discretion,” and that the appellate court asks only whether the record provides an “objective basis” to sustain the ruling. The defendant invited a heightened (constitutional) standard, but the court declined to revisit its precedent.
  • State v. Booton, 114 N.H. 750, 757 (1974)
    The court emphasized Booton’s principle that “a view is evidence” in New Hampshire. That classification matters: if a view is evidence, it must satisfy evidentiary rules (relevance, reliability/accuracy, and Rule 403 balancing) and the proponent bears an evidentiary burden.
  • State v. Hammell, 155 N.H. 47, 49 (2007)
    Cited for the burden principle: the proponent of evidence bears the burden of demonstrating admissibility. The defendant’s failure to show the premises were unchanged meant he did not carry that burden.

2) Motions to set aside verdicts as against the weight of the evidence

  • State v. Spinale, 156 N.H. 456, 465-66 (2007)
    Spinale supplied both (a) the definition—whether the verdict is “conclusively against the weight of the evidence” such that “no reasonable jury could return” it—and (b) the deferential scope of review, which is even narrower than sufficiency review.
  • State v. Sargent, 148 N.H. 571, 577 (2002)
    Used to reaffirm that inconsistencies and memory gaps are classic “veracity” questions for the jury, not typically grounds to overturn a verdict.
  • State v. Gubitosi, 152 N.H. 673, 680 (2005)
    Cited for the jury’s “substantial latitude” in assessing credibility and for the rule that jurors may accept some parts of testimony and reject others, including choosing among inconsistent statements.

3) In camera review and disclosure of privileged/confidential counseling records

  • State v. Girard, 173 N.H. 619 (2020)
    Girard “clarified” the disclosure standard governing privileged records under New Hampshire law (as applied through the Gagne framework). The defendant argued the trial court might not have applied Girard because it was newly published, but the Supreme Court presumed the trial court’s awareness absent evidence to the contrary.
  • State v. Gagne, 136 N.H. 101 (1992)
    Identified as the foundational standard for disclosure of confidential records, as clarified by Girard. The Supreme Court treated “applicable standards” in the trial court’s order as invoking Gagne/Girard.
  • State v. Hodges, 176 N.H. 752, 755-57 (2024), 2024 N.H. 44, ¶¶14, 17-18
    Hodges supplied two key points: (1) it is unpersuasive to claim the wrong standard was applied when the trial court says it applied “applicable standards,” and (2) on appeal the Supreme Court itself reviews the same records to determine whether nondisclosure was “clearly unreasonable or untenable” to the defendant’s prejudice.

B. Legal Reasoning

1) Denial of a motion for a view: evidentiary burden and risk of misleading the jury

The defendant sought a jury view to test whether the alleged assaults could have occurred “unseen or unheard” given the layout and “sight lines” of the home. The Supreme Court rejected the argument that the trial court denied the motion primarily to protect the privacy of current occupants. Instead, it characterized the trial judge’s core concern as the defendant’s failure to create an adequate record showing the view would be probative rather than misleading.

Three analytic steps are apparent in the court’s reasoning:

  1. A view is evidence (State v. Booton), so the defendant had to show the view’s evidentiary admissibility and usefulness.
  2. The proponent bears the burden (State v. Hammell) to demonstrate that the condition of the property at the time of the view sufficiently matched the condition during the alleged assaults. Mere assertion—“no reason to think” things changed—was not enough.
  3. Guardrails against misleading evidence were explicitly invoked through RSA 519:21 and N.H. R. Ev. 403, underscoring that a view can be excluded if it risks confusion or unfair prejudice (including by presenting a materially altered scene as if it were the original).

The result is a practical rule: if the defense wants a view to attack plausibility (visibility, audibility, distances), it must substantiate that the scene is substantially unchanged or otherwise explain how the jury can be reliably oriented despite changes.

2) Weight-of-the-evidence challenge: “minor inconsistencies” are for the jury

The defendant highlighted inconsistencies about timing: whether the first assault occurred while the grandfather was at work, and whether the second assault occurred the “day after” versus the day the defendant left. The Supreme Court treated these discrepancies as the type of confusion jurors routinely resolve, especially where the victim’s testimony about the assaults themselves remained consistent.

Using Spinale, the court framed the governing inquiry as whether the verdicts were ones “no reasonable jury could return.” Then, relying on Sargent and Gubitosi, it emphasized juror primacy in credibility determinations and their ability to select among inconsistent details. The court held these inconsistencies did not render the verdicts irrational under the weight-of-the-evidence standard.

3) In camera review of counseling records: presumption of correct standard and independent appellate verification

The defendant argued uncertainty as to whether the trial court applied Girard, because the order was entered 28 days after Girard issued. The Supreme Court:

  • Presumed the trial court knew and applied Girard absent evidence otherwise, treating “applicable standards” as meaning State v. Gagne as clarified by State v. Girard.
  • Performed its own review of the records (as contemplated by State v. Hodges) and concluded none of the undisclosed material satisfied the disclosure standard as clarified by Girard.

This portion of the opinion reinforces a two-layer safeguard: trial-court screening in camera, and appellate re-screening of the same documents when nondisclosure is challenged.

C. Impact

  • View motions will require concrete proof. Parties seeking a jury view should expect to provide affidavits, testimony, photographs, measurements, diagrams, property records, or other foundations establishing that the premises are substantially unchanged (or explaining the changes and why the view remains reliable). A “plausibility” theory without a foundation risks denial.
  • Rule 403 becomes a central lens for views. By tying views to N.H. R. Ev. 403 and the risk of misleading the jury, the court signals that even relevant views may be excluded where changes over time undermine accuracy.
  • Weight-of-the-evidence remains highly deferential. The decision continues New Hampshire’s strong preference to leave credibility disputes—especially over peripheral timing details—to jurors, limiting post-verdict relief to truly exceptional cases.
  • Discovery disputes over privileged counseling records are stabilized by presumptions and independent review. The presumption that trial courts apply newly issued controlling precedent, coupled with appellate in camera review, reduces the odds of reversal absent a clear mismatch between the undisclosed material and the Girard disclosure threshold.

4. Complex Concepts Simplified

“View” (jury view of a location)
A supervised visit by the judge, jury, and parties to a physical location. In New Hampshire, it is treated as evidence, meaning it must be relevant, adequately reliable/representative, and not unfairly prejudicial or misleading.
“Unsustainable exercise of discretion”
A very deferential appellate standard. The Supreme Court does not decide what it would have done; it asks whether the trial judge had an objective basis in the record for the decision.
“Weight of the evidence” vs. “sufficiency of the evidence”
A weight challenge argues the verdict is so contrary to the evidence that it cannot stand as a matter of fairness and reasonableness (“no reasonable jury” could reach it). It is more discretionary and reviewed more narrowly than a sufficiency challenge, which asks whether any rational factfinder could find guilt beyond a reasonable doubt.
In camera review
The judge privately reviews confidential or privileged records (here, counseling records) to decide whether any portion must be disclosed to the defense under the governing legal standard, often with protective orders limiting further dissemination.
N.H. R. Ev. 403
A rule allowing exclusion of otherwise relevant evidence if its probative value is substantially outweighed by dangers such as unfair prejudice, confusing the issues, misleading the jury, undue delay, or needless cumulative proof. The court invoked it to highlight the risk of a view of a changed scene misleading jurors.

5. Conclusion

State of New Hampshire v. Kierran Pierce affirms convictions while clarifying, in practical terms, what is required to obtain a jury view in New Hampshire: because a view is evidence, the moving party must create a record demonstrating that the view will be accurate and helpful rather than speculative and potentially misleading. The order also reinforces two steady themes of New Hampshire criminal practice: credibility disputes and minor inconsistencies are for the jury, and challenges to in camera nondisclosure of privileged counseling records will be tested against the Gagne standard as clarified by Girard, with the Supreme Court independently reviewing the records for prejudicial unreasonableness.