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Exculpatory Evidence Schedule or the “Laurie List”

Reviewed 12/30/2021

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Background

Prosecutors have a duty to disclose evidence that is favorable to the defense. This obligation arises from a defendant's constitutional right to due process of law, and aims to ensure that defendants receive fair trials. Evidence that is favorable to the defense is called exculpatory evidence. Exculpatory evidence may include information that shows that a law enforcement officer lacks credibility as a witness. This type of information is often kept in protected personnel files. Because “the practical reality is that prosecutors cannot review every officer’s personnel file in every case” (see "Law Enforcement Memorandum: The Exculpatory Evidence Protocol and Schedule" (March 21, 2017)) the names of officers that may have potentially exculpatory information in their personnel files are added to a list now called the “Exculpatory Evidence Schedule” (EES). The EES alerts prosecutors to the need to inquire into whether an officer's personnel file might contain exculpatory evidence. 

The EES was once known as the “Laurie List” after the 1995 case State v. Laurie and it is still referred to that way in many sources. Other jurisdictions call these lists the Brady List, Liar’s List, or the Giglio List. According to the 2017 memo, “inclusion on the EES does not mean that an officer is necessarily untrustworthy or dishonest. It only means that there is information in the officer’s personnel file that must be disclosed to a criminal defendant if the facts of the case warrant that disclosure.”  The factors that may result in an officer being included on the list are:

  • A deliberate lie during a court case, administrative hearing, other official proceeding, in a police report, or in an internal investigation;
  • The falsification of records or evidence;
  • Any criminal conduct;
  • Egregious dereliction of duty (for example, an officer using his/her position as a police officer to gain a private advantage such as sexual favors or monetary gain; an officer misrepresenting that he/she was engaged in official duties on a particular date/time; or any other similar conduct that implicates an officer's character for truthfulness or disregard for constitutional rules and procedures, including Miranda procedures);
  • Excessive use of force;
  • Mental illness or instability that caused the law enforcement agency to take some affirmative action to suspend the officer for evaluation or treatment as a disciplinary matter; a referral for counseling after being involved in a traumatic incident, or for some other reason, for which no disciplinary action was taken shall not result in placement on the EES.

The New Hampshire Attorney General now maintains and updates the EES. The EES was a confidential document not subject to public disclosure, but an October 2020 decision from the New Hampshire Supreme Court upheld a trial court’s determination that the EES is not confidential under RSA 105:13-b nor exempt from disclosure under the Right-to-Know Law either because it is an “internal personnel practice” or a “personnel file”. The Supreme Court has remanded the case to the trial court to determine whether the EES is an “other file” under RSA 91-A:5, IV and its disclosure would constitute invasion of privacy. In addition, the legislature enacted HB 471 in 2021 (see below). 

HB 471 2021

HB 471, An Act relative to police disciplinary hearings and authorizing the department of justice to maintain an exculpatory evidence schedule, became law in 2021. The law requires police disciplinary hearings to be open to the public unless certain confidential information may be revealed and authorizes the department of justice to maintain an exculpatory evidence schedule. That schedule shall be a public record subject to RSA 91-A. 

Please remember that this guide is for information purposes only and is not comprehensive.  It is intended as a starting point for research, to illustrate the various sources of the law, and to provide guidance in their use. NH Law About ... is not a substitute for the services of an attorney.