State Constitutional Confrontation Requires Physical Face-to-Face Testimony; Video Testimony (Even Two-Way) Violates Part I, Article 15

Introduction

In State v. Brousseau, 2026 N.H. 10, the New Hampshire Supreme Court reviewed convictions for multiple sexual-assault-related offenses arising from allegations that Matthew Brousseau repeatedly sexually assaulted a child complainant (between ages four and ten) during visitation periods spanning roughly 2015 to 2022, and threatened to kill her and her family if she disclosed the abuse.

The appeal presented three principal issues:

  1. Whether allowing the complainant to testify from another room via a two-way live video feed violated the defendant’s confrontation right under Part I, Article 15 of the New Hampshire Constitution.
  2. Whether the evidence was sufficient to sustain three “pattern” aggravated felonious sexual assault convictions—particularly whether the State proved the statutory “pattern” element (acts over two months or more).
  3. Whether the trial court’s in camera review and disclosure of privileged/mental-health records was sustainable, especially in light of intervening precedent.

Summary of the Opinion

The Court:

  • Held that the complainant’s remote testimony (two-way video feed from outside the defendant’s physical presence) violated Part I, Article 15, under the controlling precedent of State v. Warren, 177 N.H. 196 (2025), 2025 N.H. 5.
  • Reversed one conviction for pattern AFSA alleging “sexual intercourse” because the evidence did not establish that the “more than one” acts of intercourse occurred “over a period of 2 months or more” as required by RSA 632-A:1, I-c, applying plain-error review.
  • Remanded the remaining convictions for further proceedings due to the confrontation violation.
  • Vacated and remanded a discovery/in camera disclosure order as to certain sealed records so the trial court could determine whether State v. Zarella, 177 N.H. 328 (2025), 2025 N.H. 20, applies, and (if so) provide notice and an opportunity to be heard.

Analysis

1. Precedents Cited

A. Confrontation: Part I, Article 15 and the Limits of Video Testimony

  • State v. Warren, 177 N.H. 196 (2025), 2025 N.H. 5

    This case is the fulcrum of Brousseau. In Warren, the Court held that Part I, Article 15 “clearly and unambiguously requires a face-to-face confrontation between the accused and the witness,” rejecting the Maryland v. Craig balancing framework for state-constitutional claims. Brousseau treats Warren as dispositive: even a two-way video feed does not satisfy the state constitution when the witness testifies from outside the defendant’s physical presence.

  • Maryland v. Craig, 497 U.S. 836 (1990)

    The trial court had relied on Craig—which, under the Sixth Amendment, permits certain non-face-to-face procedures if necessary to further an important public policy and if the reliability of testimony is otherwise assured. Warren limited Craig to federal constitutional challenges. Brousseau reiterates that Craig does not control the meaning of the New Hampshire “face to face” text.

  • State v. Cook, 135 N.H. 655 (1992) and State v. Howard, 121 N.H. 53 (1981)

    These cases are invoked to frame confrontation as a foundational safeguard and to emphasize that exceptions are rare; the State’s protective interests generally “must fall” before the accused’s right to test the evidence.

  • Com. v. Bergstrom, 524 N.E.2d 366 (Mass. 1988)

    The Court used Bergstrom to reinforce a textual/structural point: interpreting “to meet” and “face to face” as satisfied by mere audio-video contact risks reading key words out of the constitutional guarantee. This supports Warren’s insistence on physical presence.

B. Sufficiency and “Pattern” Proof

  • State v. Horak, 159 N.H. 576 (2010)

    Cited for the rule that sufficiency must be addressed because insufficient evidence triggers double jeopardy bars to retrial on those charges.

  • State v. Houghton, 168 N.H. 269 (2015) and State v. Pinault, 168 N.H. 28 (2015)

    These cases supply the plain-error framework used because the defendant did not preserve the sufficiency claim at trial. Pinault provides the four-part test, including the discretionary fourth prong (fairness/integrity of proceedings).

  • State v. Racette, 175 N.H. 132 (2022)

    Racette is the most directly analogous “pattern” sufficiency precedent. It cautions against inferring the timing/frequency of one form of penetration/attempted intercourse from evidence of other forms of sexual touching. Brousseau uses Racette to reject the State’s proposed inference that two intercourse events must have been spread over months simply because other assaults occurred frequently.

  • State v. Guay, 162 N.H. 375 (2015)

    Used to support that a conviction based on insufficient evidence affects substantial rights and undermines the fairness and integrity of judicial proceedings—satisfying plain error prongs three and four.

C. In Camera Review, Privilege, and Discovery Management

  • State v. Girard, 173 N.H. 619 (2020)

    Establishes the “sustainable exercise of discretion” standard for discovery management and in camera review decisions, including the “material and relevant” framing that the trial court applied here.

  • State v. Zarella, 177 N.H. 328 (2025), 2025 N.H. 20

    Intervening precedent clarifying that, for private-organization records privileged under RSA 329-B:26 and RSA 330-A:32, the defendant must show an “essential need” to obtain disclosure. Because Zarella post-dated the trial court’s rulings, Brousseau remands as to certain specific sealed records to decide whether Zarella governs and, if so, to provide notice and an opportunity to be heard.

2. Legal Reasoning

A. Confrontation Under Part I, Article 15: Physical Presence as a Constitutional Requirement

The Court’s reasoning is straightforwardly textual and precedential. Part I, Article 15 guarantees the accused the right “to meet the witnesses against him face to face.” After Warren, this language is not treated as a flexible preference but as a mandate of physical co-presence in the courtroom (absent the narrow exceptions New Hampshire recognizes).

Applying Warren, the Court held that even though:

  • the complainant and defendant could see each other on screen,
  • the jury could observe demeanor, and
  • the procedure was designed to mitigate trauma,

the witness still testified “from a location outside the presence of the defendant,” which means there was “no face-to-face meeting” as the state constitution uses that term. The decision rejects the State’s attempt to redefine “face-to-face” as functional video contact; the constitutional injury is the absence of physical presence.

B. Pattern AFSA Sufficiency: Proving the Two-Month Temporal Element

The opinion draws a critical line between (1) evidence that conduct happened “more than once” and (2) evidence that the “more than one” acts occurred “over a period of 2 months or more” (RSA 632-A:1, I-c), which is what converts multiple acts into a “pattern.”

1. Buttocks-grabbing pattern charges: sufficient evidence

The complainant testified to repeated touching across defined age ranges (4–7 and 8–10), plus regular shower contact during frequent visitation. From these details—visitation every other weekend and the regularity of showers—the jury could rationally infer at least two acts separated by at least two months within each charged time window.

2. Sexual-intercourse pattern charge: insufficient evidence (plain error)

By contrast, the complainant’s intercourse testimony established only that it occurred “at least two times” and “probably” around age nine, without evidence as to when those two acts occurred relative to each other. The Court rejected the State’s attempt to infer spacing from other assault patterns, relying on State v. Racette to emphasize that frequency in one category does not prove frequency (or temporal spread) in another.

Because the “two months or more” element was unsupported, the conviction was reversed. The Court then completed the Pinault plain-error analysis: the error was obvious (missing proof of an essential element), affected substantial rights (it produced a conviction), and undermined the integrity of proceedings.

C. In Camera Review and Post-Decision Remand Under Zarella

The Court largely sustained the trial court’s disclosures under the Girard framework, but identified certain records (specified to the trial court under seal) requiring re-evaluation in light of State v. Zarella. The remand is procedurally significant: if Zarella applies, the complainant must receive notice and an opportunity to be heard before disclosure decisions are made under the “essential need” standard.

The Court also carefully avoided deciding admissibility or cross-examination use—preserving those questions for the trial court on remand.

3. Impact

A. Remote Testimony in New Hampshire Criminal Trials (State-Constitution Claims)

Brousseau reinforces a bright-line rule: in New Hampshire, when the accused invokes Part I, Article 15, testimony delivered from outside the defendant’s physical presence—whether one-way or two-way video—violates the state confrontation guarantee. Practically:

  • Prosecutors cannot rely on Maryland v. Craig-style necessity findings to justify remote testimony against a state constitutional challenge.
  • Trial courts must seek alternative measures that preserve physical face-to-face confrontation (e.g., courtroom management, support persons, tailored questioning procedures, scheduling, and other trauma-informed—but in-room—practices), subject to other controlling law.
  • Expect increased litigation over what counts as “outside the presence” and what accommodations are permissible while maintaining physical co-presence.

B. Charging and Proving “Pattern” Offenses

The sufficiency holding underscores that “pattern” liability is element-specific: the State must introduce evidence from which a jury can find not only multiple acts, but also the statutorily required temporal span. After Brousseau (and consistent with Racette):

  • Vague testimony that something happened “at least twice” is insufficient for a pattern count absent evidence of spacing over two months or more.
  • The State may not fill timing gaps by assuming that one type of penetrative act occurred with the same frequency as other acts proven more regularly.
  • Double jeopardy consequences are real: when a conviction is reversed for insufficient evidence, the State cannot retry that charge.

C. Privileged Records: Procedure and Standards Post-Zarella

The remand signals that litigants and trial courts must now integrate Zarella’s “essential need” requirement into requests for disclosure of certain privileged private-organization records, with corresponding notice procedures for the privilege holder/complainant. This may raise the bar above a mere “material and relevant” showing in covered contexts and will likely generate further appellate refinement about how “essential need” is demonstrated and how notice/hearing obligations are implemented.

Complex Concepts Simplified

Confrontation right (Part I, Article 15)
New Hampshire’s constitution says an accused has the right to “meet” witnesses “face to face.” After Warren and now Brousseau, this means the witness must testify in the defendant’s physical presence; video is not a substitute when the state constitutional right is invoked.
Pattern aggravated felonious sexual assault (pattern AFSA)
A “pattern” requires more than one qualifying sexual assault act against the same victim, spread out over at least two months, and occurring within a five-year window. Proving “at least two acts” is not enough—timing matters.
Plain error review
If an issue was not properly preserved at trial, the appellate court corrects it only if the error is obvious, harms important rights, and seriously undermines the fairness/integrity of proceedings.
Double jeopardy and sufficiency reversals
If evidence was legally insufficient to convict, the State cannot retry that charge—even if other trial errors would otherwise justify a new trial.
In camera review
The judge privately reviews sensitive records (often privileged) to decide whether any part should be disclosed to the parties under the governing legal standard.
“Essential need” (post-Zarella)
A heightened requirement for disclosing certain privileged private-organization records: the defendant must show the records are not just helpful, but necessary in a way that justifies breaching privilege, with procedural protections (including notice and opportunity to be heard).

Conclusion

State v. Brousseau is a consequential application of New Hampshire’s newly clarified confrontation jurisprudence: under Part I, Article 15, “face to face” means physical, in-courtroom confrontation, and remote testimony—even two-way—cannot be justified by Craig-type necessity findings when the state constitutional right is at issue. The decision also tightens the evidentiary discipline required for “pattern” sexual assault prosecutions, reversing a pattern intercourse conviction where the State failed to prove the two-month temporal element, and it positions Zarella as an important procedural checkpoint in disputes over privileged records. Together, these holdings will shape trial practice in sexual assault cases by constraining remote-testimony options, demanding clearer proof of pattern timing, and formalizing privilege-protective disclosure procedures.