New Hampshire Bar Journal
2005 Fall, 30.
OPENING THE DOOR New Hampshire's Treatment of Trial Court Rebuttal Evidence
New Hampshire Bar Journal Volume 46, No. 3, Pg. 30 Fall 2005 OPENING THE DOOR New Hampshire's Treatment of Trial Court Rebuttal Evidence Bar Journal Author - David A. Estabrook
On January 6, 2005 the New Hampshire Supreme Court decided State v. Rogan,(fn1) adding to the number of cases explaining the "opening the door" evidentiary doctrine. The court held that the "'opening the door' doctrine applies when one party introduces evidence providing a justification beyond mere relevance for an opponent's introduction of otherwise inadmissible evidence."(fn2) To trigger the doctrine, "[t]he initial evidence must have reasonably created a misimpression or misled the fact-finder in some way."(fn3) Inadmissible evidence may, in response, become admissible in order to "remove any unfair prejudice which might otherwise have ensued from the original evidence."(fn4)
The New Hampshire Supreme Court has not provided clear guidance as to what constitutes "unfair prejudice" or "misimpression." Absent clear standards or guidance, courts run the risk of administering justice "according to the length of the chancellor's foot" with dubious uniformity and certainty.(fn5)
This article traces the evolution of the "opening the door" doctrine in New Hampshire. The New Hampshire Supreme Court has developed so broad an "opening the door" doctrine as to risk confusion. Following other commentators(fn6), this article proposes that the doctrine has been expanded too far for consistency in its application. The doctrine should thus be pared back so that it applies only in cases of "specific contradiction and curative admissibility."(fn7)
The following hypothetical illustrates the three interpretations of the doctrine discussed in this article. On direct examination, "A" testifies to seeing the defendant assaulting a victim. During cross-examination, "A" admits to failing to identify the defendant in a pre-trial line-up. On redirect, the prosecution proposes to introduce the defendant's prior convictions for witness tampering and intimidating witnesses in prior trials. The question facing a court is whether, on cross-examination, the defendant opened the door to the damaging and otherwise inadmissible evidence elicited on redirect. This article will outline three possible analyses of that question: the doctrines of specific contradiction; curative admissibility; and the expansive "opening the door" doctrine now prevalent in New Hampshire.
A party using specific contradiction impeaches the witness by offering evidence directly contradicting the witness's testimony.(fn8) In the hypothetical, the redirect testimony at issue does not fall within the definition of specific contradiction.(fn9) The redirect testimony explains evidence elicited on cross; it does not contradict it.
Curative admissibility enables a party to introduce otherwise inadmissible evidence relating to a particular point after, and because, the opponent has presented inadmissible evidence on that point.(fn10) Responding to improper evidence, a party may present what is "necessary to remove the unfair prejudice which might otherwise have ensued from the original argument."(fn11) In the hypothetical, the inadmissible redirect testimony will not be allowed because there has been no inadmissible evidence presented to the jury by the defense on cross examination that needs rebuttal.(fn12)
"Opening the door" provides that "[w]hen one party introduces a line of proof, the other party deserves a chance to meet it . . ."(fn13) However, if the evidence which a party seeks to rebut is "immaterial and not prejudicial," the judge, in the interest of efficiency should not allow any response.(fn14) If he does, "under the prevailing view, the party opening the door has no standing to complain."(fn15) New Hampshire courts interpret the doctrine as allowing "previously suppressed or otherwise inadmissible evidence," to be offered as a remedy for a party creating a misleading advantage.(fn16) In the hypothetical, rebuttal evidence to the witness's statement regarding the personal threats, under the "opening the door" doctrine may be admissible. The New Hampshire Supreme Court has stated, "admissibility of evidence is generally within the trial court's sound discretion."(fn17) Thus, in finding that cross-examination has created a misleading advantage, the trial judge has discretion whether to admit the otherwise inadmissible evidence.
That expansive "opening the door" doctrine promotes uncertainty about the admissibility of evidence. Furthermore, in applying the broad "misleading advantage" standard, courts run the risk of creating a trial-within-a-trial while attempting to balance the interests of parties on both sides. Alternatively, seeking to avoid that back and forth, the trial court must arbitrarily decide to close the issue, rendering one party with the last word and a misleading advantage.
In the hypothetical, the defendant may wish to show that he was actually innocent of the prior witness tampering charges. As each party advocates for the introduction of evidence that they claim is necessary to remedy an unfair advantage that their opponent has gained, the focus of the trial is drawn from the original issue and a trial-within-a-trial develops. Alternatively, the trial judge must decide the point where the evidentiary debate will end. Granted, this will close out the risk of a trial-within-a-trial, however regardless of when the decision to end the evidence debate is made, one party will be left disadvantaged.
THE FACTS OF STATE V. ROGAN
In Rogan, the defendant was indicted on four counts of pattern aggravated felonious sexual assault committed against a thirteen-year-old victim.(fn18) The state's case depended wholly upon the victim's testimony.(fn19) The defense argued that the victim gave incriminating trial testimony because, before trial, she had been coerced into giving incriminating statements by improper police tactics.(fn20)
On direct examination, the deputy who took the pretrial statements testified about her method of interviewing the victim.(fn21) She stated that the victim's interview lasted nearly two hours and provided "details about the events."
During cross-examination, the defense used an interview transcript to explore the possibility that the officer coerced answers.(fn22) After the cross examination, the state asked to play the entire audiotape of the interview.(fn23) The state argued that the coercion inference created during the deputy's cross-examination could only be rebutted by playing the whole audiotape.(fn24)
The defense asserted that it had created no misleading impression in cross-examination about specific aspects of the interview, instead they had simply, and accurately, called attention to specific...