Rape Shield Laws Upheld by New Hampshire Supreme Court

By George Khoury, Esq. on November 15, 2016 | Last updated on March 21, 2019

Last Thursday, the Supreme Court of New Hampshire re-affirmed the state's rape shield laws and overturned their own decision. The 2014 conviction for the 2012 sexual assault and murder of Lizzi Marriot was appealed, and as part of the appeal, the attorneys for the appellant wanted to include part of the record that had been sealed as it related to Ms. Marriot's sexual history.

Initially, the court granted the defendant's motion to unseal the records for use on appeal, which would put them into the public record. However, after victim's advocates voiced their concerns over what that ruling would mean, and the attorney general's office appealed that ruling, the court actually reversed their own ruling.

Court Overturns Its Own Ruling

If it sounds strange that a court would overturn its own ruling, that's because it is rarely done. While nearly every court has a mechanism available allowing a losing party to challenge a ruling, such as a motion for reconsideration, these motions are rarely successful, but are still brought with regularity. However, in this case, the court granted the appellant's motion to unseal the records without hearing oral arguments, and the attorney general asked the court to reconsider after hearing arguments. The court then changed their mind about the records being unsealed.

It is worth noting however that the court's October 14 order explains that while the records and appellate briefing may be sealed and/or redacted, the oral argument will be open to the public, and defense counsel will not be prohibited from making any arguments they deem necessary. The court further notes in that order that records sealed do not contain confidential materials, but are rather sealed because of the nature of the case.

What Does This Mean for the Public Oral Argument?

While the October 14 order clearly states that defense attorneys will be allowed to go into the prior history of the victim during the oral argument scheduled for this week, the order also clearly states that it shall only be done as necessary, and done not in a way to embarrass the victim or victim's family. While this might not afford much comfort to the victim advocates, since the topic has been briefed, justices tend to steer oral arguments towards where they have questions, rather than where attorneys want to focus.

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