State v. Rosen: Rule 404(b) Limits on Prior Double‑Voting History and Admissibility of Third‑Party Confession to the Charged Election (with Richards Hearing Requirement)

1. Introduction

In State v. Rosen, 2026 N.H. 15, the Supreme Court of New Hampshire reversed a jury conviction for “voting in more than one state,” RSA 659:34-a (2016), arising out of the November 8, 2016 general election. The defendant, Richard Rosen, maintained residences in Holderness, New Hampshire and Belmont, Massachusetts. The State alleged he cast a New Hampshire ballot (by absentee ballot assistance at Holderness town hall) and also cast a Massachusetts ballot (as reflected on Belmont voter checklists) in the same election year.

The appeal presented intertwined evidentiary and procedural issues: (i) whether the State could introduce decades of the defendant’s prior voting history as “other acts” evidence under New Hampshire Rule of Evidence 404(b); (ii) whether the defense could introduce a third party’s statements admitting he had voted in the defendant’s name, including “in 2016”; (iii) whether a Richards hearing was required if that third party invoked the Fifth Amendment; and (iv) whether New Hampshire had territorial jurisdiction and whether the evidence was sufficient/weighty enough to sustain the verdict.

2. Summary of the Opinion

  • Reversal on evidentiary error: The court held the trial court erred by admitting the defendant’s historical voting records under Rule 404(b) because the danger of unfair prejudice substantially outweighed low incremental probative value.
  • Overbroad exclusion of third-party evidence: The court held it was error to exclude evidence that William Botelho confessed to voting in the defendant’s name during the same election at issue (the November 2016 election) on the theory it was Rule 404(b) “other acts” evidence. A confession to the charged conduct is not an “other act.”
  • Richards hearing required on remand if Fifth Amendment invoked: Because Botelho’s testimony about 2016 may be admissible and potentially incriminating to him, the trial court must conduct a Richards hearing if he asserts the privilege.
  • Post-trial rulings affirmed: The court upheld denial of the motion to dismiss for lack of territorial jurisdiction and upheld denial of the motion for judgment notwithstanding the verdict / to set aside the verdict (sufficiency and weight).
  • Disposition: Conviction reversed and remanded for further proceedings.

3. Analysis

A. Precedents Cited

The opinion is anchored by New Hampshire’s established frameworks for evidentiary discretion, Rule 404(b) admissibility, Fifth Amendment privilege procedure, territorial jurisdiction, and post-verdict review.

1) Appellate review of evidentiary discretion

  • State v. Warren, 177 N.H. 196, 207 (2025), 2025 N.H. 5, ¶35: The court reiterated the “unsustainable exercise of discretion” standard and the rule that, when admissibility is decided pretrial, appellate review is confined to the record and arguments at the pretrial hearing. This framing mattered because the Supreme Court assessed the Rule 404(b) ruling based on what the State proffered pretrial, not on trial developments.

2) Rule 404(b) purpose and three-part test

  • State v. Tufano, 175 N.H. 662, 665 (2023): Quoted for the core purpose of Rule 404(b)—preventing convictions based on propensity—and for the proposition that the State bears the burden of showing admissibility of prior bad acts. This burden allocation supported the court’s insistence on a serious, not perfunctory, prejudice/probative balancing.
  • State v. Howe, 159 N.H. 366, 377-78 (2009): Supplied the definition of “unfair prejudice” and the factors used to weigh it (emotional impact, outrage/resentment, and whether the point is otherwise proven). The court used Howe to justify treating “hot-button” voter-fraud allegations and multiple similar uncharged acts as presenting an outsized prejudice risk.
  • State v. Smith, 125 N.H. 522, 525 (1984): Cited for a limitation on identity use: prior-act identity evidence is only relevant if the prior acts were acts of the defendant. The court used this to explain why Massachusetts’s lack of photo ID requirements diminished the probative value of historical checklist-based “identity” claims (i.e., the records do not strongly show who physically voted).
  • State v. Belonga, 163 N.H. 343, 360 (2012): Provided the principle that similar-acts evidence inherently risks propensity reasoning, and the more similar the prior act is to the charged conduct, the greater the unfair-prejudice risk. This similarity principle was central: the alleged prior double-voting episodes were “nearly identical” to the charge, tipping the balance toward exclusion.

3) Rule 404(b) in “alternative perpetrator” posture

  • State v. Durgin, 165 N.H. 725, 730 (2013): Quoted for the requirement that a defendant must show a “clear connection” between the purpose for offering other-acts evidence and the third party’s bad acts. The court relied on Durgin to affirm that Botelho’s admissions to voting in the defendant’s name in other elections can be treated as Rule 404(b) evidence.
  • State v. Gay, 169 N.H. 232, 246 (2016) and State v. Roy, 167 N.H. 276, 290 (2015): Cited to establish that New Hampshire courts have applied Rule 404(b) even when the defense—not the State—offers “other bad acts” evidence to point to an alternative perpetrator.

4) Fifth Amendment procedure: Richards hearing

  • State v. Richards, 129 N.H. 669 (1987) and State v. King, 146 N.H. 717, 721 (2001): King (quoting Richards) requires a trial court to determine whether a “truthful and complete response might be incriminating,” and holds that excluding testimony based on privilege requires a “so-called Richards hearing.” This precedent drove the remand instruction: if Botelho invokes the Fifth Amendment, the hearing is mandatory.

5) Territorial jurisdiction

  • Hemenway v. Hemenway, 159 N.H. 680, 683 (2010): Provided the general definition of territorial jurisdiction—offense must be committed within the geographic territory.
  • State v. Breed, 159 N.H. 61, 67-68 (2009): Interpreted RSA 625:4, I(a) broadly to encompass crimes committed wholly or partly in New Hampshire when an element occurs in-state. The court used this principle to conclude that completion of the New Hampshire absentee ballot was “conduct which is an element” in New Hampshire.

6) Post-verdict standards: sufficiency vs weight

  • State v. Spinale, 156 N.H. 456, 462-66 (2007): Supplied the distinct standards for (i) judgment notwithstanding the verdict (sufficiency; no weighing of credibility) and (ii) motion to set aside the verdict (weight; trial court discretion; “exceptional” cases where evidence “preponderates heavily against the verdict”). The Supreme Court applied these standards to uphold the post-trial rulings despite reversing on evidentiary grounds.

B. Legal Reasoning

1) The State’s use of decades of voting history failed Rule 404(b)’s balancing

The court assumed (without deciding) that the evidence might satisfy Rule 404(b)’s first two prongs (non-propensity relevance and “clear proof”), but reversed on the third prong: whether probative value is substantially outweighed by the danger of unfair prejudice.

Two linked determinations drove the outcome:

  • Low incremental probative value: The State already had direct evidence that the defendant was registered in both states, completed an absentee ballot in Holderness, and was checked off as having voted in Belmont. Moreover, Massachusetts’s lack of a photo-ID requirement weakened “identity” inferences from checklist-based records; the historical records did not meaningfully solve the “who actually voted” problem.
  • High unfair-prejudice risk: Multiple uncharged, nearly identical alleged double-voting incidents invited the forbidden propensity inference (“he did it before, so he did it in 2016”), a risk heightened by the “controversial and hot-button” nature of voter-fraud allegations. Under Belonga, similarity increases prejudice; here similarity was near-complete.

The court thus announced an important practical constraint: where the “other acts” are numerous, closely mirror the charged conduct, and add little beyond evidence already proving the contested point, Rule 404(b)(2)(C) requires exclusion—especially in politically charged contexts where jury passion is more likely to be triggered.

2) A third party’s confession to the charged election is not Rule 404(b) “other acts” evidence

The trial court treated all Botelho-related evidence as alternative-perpetrator evidence governed by Rule 404(b) and excluded it as propensity evidence. The Supreme Court held this was overbroad because it failed to separate two distinct categories:

  • Category 1 (admissible in principle): Botelho’s statements that he voted in the defendant’s name in the November 2016 election. This is not evidence of “other crimes, wrongs, or acts”—it is evidence directly addressing the charged act (that someone other than the defendant cast the Massachusetts ballot). Labeling it Rule 404(b) evidence misconceives the rule’s scope.
  • Category 2 (may be Rule 404(b) evidence): Botelho’s admissions to voting in the defendant’s name in other elections across decades. Under Durgin, Gay, and Roy, such other-acts evidence offered to show an alternative perpetrator can be subject to Rule 404(b) limits, including notice/connection and balancing.

This parsing matters doctrinally: it prevents courts from using Rule 404(b) as a blunt instrument to exclude core alternative-perpetrator proof that concerns the charged event itself. It also reorients the inquiry for the 2016-confession evidence toward relevance, hearsay/availability, credibility assessment by the jury, and constitutional compulsory-process concerns—rather than propensity doctrine.

3) Richards hearing is procedure, not discretion, when Fifth Amendment privilege is invoked

Once the court recognized that Botelho’s 2016-related testimony could be admissible and potentially self-incriminating, State v. King and State v. Richards required a hearing to determine whether the privilege is properly invoked. The trial court’s earlier refusal rested on the mistaken premise that Botelho evidence was categorically inadmissible; on remand, that premise falls away, and the hearing becomes mandatory if Botelho asserts the Fifth.

4) New Hampshire territorial jurisdiction exists if an in-state element occurs

The defendant argued that if his New Hampshire vote came first, the “second vote” (and thus the crime) occurred in Massachusetts. The court rejected the premise as a matter of statutory interpretation: RSA 659:34-a, I prohibits casting a New Hampshire ballot if the person “also casts a ballot in the same election year” elsewhere—sequence is immaterial. Independently, territorial jurisdiction exists because “conduct which is an element of the offense” occurred in New Hampshire (completing the New Hampshire absentee ballot), satisfying RSA 625:4, I(a) as construed in State v. Breed.

5) Sufficiency and weight standards were met (despite reversal on trial error)

Even while reversing, the court held the State presented legally sufficient evidence that the defendant cast a Massachusetts ballot because RSA 659:34-a, III makes being “checked off” on the out-of-state checklist “prima facie evidence” of casting a ballot. The court also upheld the weight determination under Spinale, finding this was not an “exceptional” case where evidence preponderated heavily against the verdict.

C. Impact

  • Tightening 404(b) in election-related prosecutions: The decision signals heightened sensitivity to unfair-prejudice risks where charged conduct is politically salient and prior-acts evidence is cumulative and highly similar. Prosecutors should expect stricter Rule 404(b)(2)(C) scrutiny when seeking to introduce long voting histories to prove intent/knowledge/identity.
  • Protection of alternative-perpetrator defenses: By holding that a third-party confession to the charged election is not Rule 404(b) “other acts,” the court reduces the likelihood that trial courts exclude core defense proof via propensity doctrine. Future courts will likely be required to surgically separate “charged-act confession” evidence from “other-election pattern” evidence.
  • Procedural clarity on Fifth Amendment issues: The remand instruction operationalizes Richards: if the defense calls a witness whose testimony could expose the witness to prosecution, courts must hold a hearing rather than resolve admissibility through categorical exclusion.
  • Territorial jurisdiction guidance for multi-state election offenses: The court’s reading of RSA 659:34-a, I (sequence irrelevant) and application of RSA 625:4, I(a) reinforce that New Hampshire can prosecute when an in-state element occurs, even if the out-of-state vote is the disputed component.

4. Complex Concepts Simplified

Rule 404(b) (“other crimes, wrongs, or acts”)
A rule that generally forbids using past misconduct to prove “he’s the kind of person who would do this,” but allows such evidence for specific non-character purposes (intent, knowledge, identity, absence of mistake). Even if relevant, the judge must exclude it if unfair prejudice substantially outweighs probative value.
Unfair prejudice vs. harmful evidence
Evidence is not “unfairly prejudicial” merely because it hurts the defense; it is unfair when it tempts the jury to decide on emotion, outrage, or propensity rather than on the charged facts.
Alternative perpetrator evidence
Evidence suggesting someone else committed the crime. New Hampshire may apply Rule 404(b) when the defense offers a third party’s “other bad acts” to point the finger, but a third party’s confession to the charged incident is not an “other act.”
Richards hearing
A required hearing when a witness invokes the Fifth Amendment. The judge must determine whether answering could incriminate the witness and whether the privilege is properly invoked, rather than accepting a blanket refusal without inquiry.
Territorial jurisdiction (RSA 625:4)
New Hampshire can prosecute if any element of the offense (conduct or result) happens in New Hampshire, even if other parts occur elsewhere.
Prima facie evidence (RSA 659:34-a, III)
Evidence that is legally sufficient to establish a fact unless rebutted—here, being checked off on another state’s checklist is enough to show the person cast a ballot there, unless the defense persuades the fact-finder otherwise.
Judgment notwithstanding the verdict vs. motion to set aside
“Judgment notwithstanding the verdict” challenges legal sufficiency (could any rational juror convict?). A motion to set aside challenges weight (is the verdict unreasonable given the probative force of the evidence?), a more discretionary inquiry for the trial judge.

5. Conclusion

State v. Rosen materially clarifies New Hampshire evidence law in a multi-state election prosecution: (1) decades of highly similar alleged double-voting history may be excluded under Rule 404(b) where the probative value is cumulative and the unfair-prejudice risk is substantial; (2) a third party’s confession to voting in the defendant’s name during the charged election is not Rule 404(b) “other acts” evidence and cannot be swept out by an overbroad propensity ruling; and (3) if the third party invokes the Fifth Amendment, the trial court must conduct a Richards hearing. While the State’s territorial jurisdiction and evidentiary sufficiency were upheld, the conviction could not stand because the trial was skewed by the combined admission of highly prejudicial propensity evidence and exclusion of core alternative-perpetrator proof.