THE STATE OF NEW HAMPSHIRE

SUPREME COURT
No. 2014-0592
State of New Hampshire
v.
Seth Mazzaglia
______________________________________________________
Appeal Pursuant to Rule 7 from Judgment
of the Strafford County Superior Court
______________________________________________________
________________________________
BRIEF FOR THE DEFENDANT
________________________________

Christopher M. Johnson
Chief Appellate Defender
Appellate Defender Program
10 Ferry Street, Suite 202
Concord, NH 03301
NH Bar #15149
603-224-1236
(Oral argument on Sept. 21, 2016)

TABLE OF CONTENTS
Page
Table of Authorities ......................................................................................... ii
Text of Relevant Authorities ............................................................................vi
Questions Presented ....................................................................................... 1
Statement of the Case and Facts ..................................................................... 2
Summary of the Argument .............................................................................. 5
Argument
I.

THE COURT SHOULD NOT DECIDE THIS APPEAL AFTER

A CLOSED-DOOR ORAL ARGUMENT, ON THE BASIS OF
A SECRET OR PARTIALLY SECRET RECORD, AND IN A
CONCLUSORY OR NON-PUBLIC ORDER. ..................................... 7
A.

The applicability of Rule 412 to appellate

proceedings. ....................................................................... 9

B.

The applicability of the Rape Shield Law to

appellate proceedings. ....................................................... 12

C.

Appellate procedures required by the Victims

Rights Law, RSA 21-M:8-k (2012)...................................... 14

D.

Balancing the constitutional rights of the victim,

the defendant, and the public. .......................................... 16

Conclusion.................................................................................................... 35

TABLE OF AUTHORITIES
Page
Cases
Associated Press v. State of N.H.,
153 N.H. 120 (2005) .......................................................................... passim
Commonwealth v. Cohen,
921 N.E.2d 906 (Mass. 2010) ................................................................... 30
Commonwealth v. Harris,
825 N.E.2d 58 (Mass. 2005) ..................................................................... 32
Commonwealth v. Jones,
37 N.E.3d 589 (Mass. 2015) ............................................................... 19, 30
Cox Broadcasting Corp. v. Cohn,
420 U.S. 469 (1975) ................................................................................. 26
Craig v. Harney,
331 U.S. 367 (1947) ................................................................................. 27
Douglas Oil Co. v. Petrol Stops Northwest,
441 U.S. 211 (1979) ................................................................................. 19
Flaherty v. Dixon,
158 N.H. 385 (2009) ................................................................................. 10
Gagne v. Booker,
680 F.3d 493 (6th Cir. 2012) ...................................................................... 3
Globe Newspaper Co. v. Superior Court,
457 U.S. 596 (1982) .......................................................................... passim
Petition of Keene Sentinel,
136 N.H. 121 (1992) ........................................................................... 17, 31
Nixon v. Warner Communications, Inc.,
435 U.S. 589 (1978) ................................................................................. 17
In re Oliver,
333 U.S. 257 (1948) ................................................................................. 16
People v. Bryant,
94 P.3d 624 (Colo. 2004) .......................................................................... 13
ii

People v. Suazo,
992 N.Y.S.2d 1270 (N.Y. App. 2014) ......................................................... 26
Press-Enterprise Co. v. Superior Court,
478 U.S. 1 (1986) .............................................................................. passim
Richmond Newspapers, Inc. v. Virginia,
448 U.S. 555 (1980) .......................................................................... passim
State v. Beauchemin,
161 N.H. 654 (2011) ................................................................................. 15
State v. Cannon,
146 N.H. 562 (2001) ................................................................................. 13
State v. Colbath,
130 N.H. 316 (1988) ................................................................................. 13
State v. DeCato,
156 N.H. 570 (2007) .......................................................................... passim
State v. Dewitt,
143 N.H. 24 (1998) ................................................................................... 13
State v. Dor,
165 N.H. 198 (2013) ................................................................................. 11
State v. Evans,
127 N.H. 501 (1985) ................................................................................. 14
State v. Howard,
121 N.H. 53 (1981) ............................................................................ passim
State v. Jones,
230 P.3d 576 (Wash. 2010)....................................................................... 32
State v. Long,
161 N.H. 364 (2011) ................................................................................. 11
State v. Macbale,
305 P.3d 107 (Ore. 2013).......................................................................... 31
State v. Miskell,
122 N.H. 842 (1982) ........................................................................... 31, 32
State v. Rogers,
138 N.H. 503 (1994) ................................................................................. 13
iii

State v. White,
155 N.H. 119 (2007) ................................................................................... 3
Petition of Union Leader Corp.,
147 N.H. 603 (2002) ................................................................................. 17
United States v. Index Newspapers,
766 F.3d 1072 (9th Cir. 2014) ............................................................ 16, 21

Statutes
5 U.S.C. 552a ............................................................................................. 15
RSA 21-M:8-k (2012).............................................................................. passim
RSA 135-C .................................................................................................... 18
RSA 329:26 ............................................................................................... 9, 15
RSA 516:35 ................................................................................................... 15
RSA 632-A ................................................................................................ 3, 12
RSA 632-A:6, II (2007) ........................................................................... passim

Constitutional Provisions
United States Constitution First Amendment ............................... 17, 18, 30, 31
New Hampshire Constitution Part I, Article 8 ................................................ 17
New Hampshire Constitution Part I, Article 18 .............................................. 14

Rules
N.H. R. Evid. 412 ................................................................................... passim
N.H. R. Evid. 1101(a)................................................................................. 9, 11
Sup. Ct. R. 12(1)(b) ......................................................................................... 9
Sup. Ct. R. 12(2)(a).......................................................................................... 9
iv

Other Authorities
N.H. Guidelines for Public Access to Court Records ....................................... 30

TEXT OF RELEVANT AUTHORITIES

New Hampshire Rules of Evidence, Rule 412. Evidence of Prior Sexual Activity
(a) Except as constitutionally required, and then only in the manner provided in (b),
below, evidence of prior consensual sexual activity between the victim and any person
other than the defendant shall not be admitted into evidence in any prosecution or in
any pretrial discovery proceeding undertaken in anticipation of a prosecution under
the laws of this state.
(b) Upon motion by the defense filed in accordance with the then applicable Rules of
Court, the defense shall be given an opportunity to demonstrate, during a hearing in
chambers, in the manner provided for in Rule 104:
(1) Evidence Sought During Pretrial Discovery Stage: that there is a reasonable
possibility that the information sought in a pretrial discovery proceeding which would
otherwise be excluded under subsection (a), above, will produce the type of evidence
that due process will require to be admitted at trial;
(2) Use of Evidence At Trial: that due process requires the admission of the
evidence proffered by the defense which would be otherwise excluded under
subsection (a), above, and the probative value in the context of the case in issue
outweighs its prejudicial effect on the victim.

New Hampshire RSA 21-M:8-k Rights of Crime Victims.

I. As used in this section:
(a) "Victim'' means a person who suffers direct or threatened physical, emotional,
psychological or financial harm as a result of the commission or the attempted
commission of a crime. "Victim'' also includes the immediate family of any victim who
is a minor or who is incompetent, or the immediate family of a homicide victim, or the
surviving partner in a civil union.
(b) "Crime'' means a violation of a penal law of this state for which the offender,
upon conviction, may be punished by imprisonment for more than one year or an
offense expressly designated by law to be a felony.
II. To the extent that they can be reasonably guaranteed by the courts and by law
enforcement and correctional authorities, and are not inconsistent with the
constitutional or statutory rights of the accused, crime victims are entitled to the
following rights:
(a) The right to be treated with fairness and respect for their dignity and privacy
throughout the criminal justice process.
(b) The right to be informed about the criminal justice process and how it
progresses.

vi

(c) The right to be free from intimidation and to be reasonably protected from the
accused throughout the criminal justice process.
(d) The right to be notified of all court proceedings.
(e) The right to attend trial and all other court proceedings the accused has the
right to attend.
(f) The right to confer with the prosecution and to be consulted about the
disposition of the case, including plea bargaining.
(g) The right to have inconveniences associated with participation in the criminal
justice process minimized.
(h) The right to be notified if presence in court is not required.
(i) The right to be informed about available resources, financial assistance, and
social services.
(j) The right to restitution, as granted under RSA 651:62-67 or any other
applicable state law, or victim's compensation, under RSA 21-M:8-h or any other
applicable state law, for their losses.
(k) The right to be provided a secure, but not necessarily separate, waiting area
during court proceedings.
(l) The right to be advised of case progress and final disposition.
(m) The right of confidentiality of the victim's address, place of employment, and
other personal information.
(n) The right to the prompt return of property when no longer needed as evidence.
(o) The right to have input in the probation presentence report impact statement.
(p) The right to appear and make a written or oral victim impact statement at the
sentencing of the defendant or, in the case of a plea bargain, prior to any plea bargain
agreement. No victim shall be subject to questioning by counsel when giving an impact
statement.
(q) The right to be notified of an appeal, an explanation of the appeal process, the
time, place and result of the appeal, and the right to attend the appeal hearing.
(r) The right to be notified of, to attend, and to make a written or oral victim
impact statement at the sentence review hearings and sentence reduction hearings. No
victim shall be subject to questioning by counsel when giving an impact statement.
(s) The right to be notified of any change of status such as prison release,
permanent interstate transfer, or escape, and the date of the parole board hearing,
when requested by the victim through the victim advocate.
(t) The right to address or submit a written statement for consideration by the
parole board on the defendant's release and to be notified of the decision of the board,
when requested by the victim through the victim advocate.
(u) The right to all federal and state constitutional rights guaranteed to all victims
of crime on an equal basis, and notwithstanding the provisions of any laws on capital
punishment, the right not to be discriminated against or have their rights as a victim
denied, diminished, expanded, or enhanced on the basis of the victim's support for,
opposition to, or neutrality on the death penalty.

vii

(v) The right to access to restorative justice programs, including victim-initiated

victim-offender dialogue programs offered through the department of corrections.
(w) The right to be informed of the filing of a petition for post-conviction DNA
testing under RSA 651-D.
II-a. (a) In any case where the victim informs the court that he or she requires
assistance in making an oral or written impact statement permitted under this
section, the court shall allow the victim to designate a representative to write or speak
on the victim's behalf.
(b) The victim's impact statement shall not be limited to the injuries, harm, or
damages noted in the information or indictment, but may include all injuries, harm,
and damages suffered as a result of the commission or attempted commission of the
crime whether or not the injuries, harm, or damages were fully determined or
discovered at the time the information or indictment was filed.
III. Nothing in this section shall be construed as creating a cause of action against
the state, a county or municipality, or any of their agencies, instrumentalities, or
employees. Nothing in this section shall be construed as creating any new cause of
action or new remedy or right for a criminal defendant.

New Hampshire RSA 632-A:6 Testimony and Evidence.

I. The testimony of the victim shall not be required to be corroborated in
prosecutions under this chapter.
II. Prior consensual sexual activity between the victim and any person other than
the actor shall not be admitted into evidence in any prosecution under this chapter.
III. Consent is no defense if, at the time of the sexual assault, the victim indicates
by speech or conduct that there is not freely given consent to performance of the
sexual act. A jury is not required to infer consent from a victim's failure to physically
resist a sexual assault.
III-a. The victim's manner of dress at the time of the sexual assault shall not be
admitted as evidence in any prosecution under this chapter to infer consent.
IV. At the request of a party the court shall, in cases under RSA 632-A, order
witnesses excluded so that they cannot hear the testimony of other witnesses, and it
may make the order of its own motion. This does not authorize exclusion of a party
who is a natural person or a victim of the crime, or a person whose presence is shown
by a party to be essential to the presentation of the party's cause.
V. In any sexual assault case under RSA 632-A where the victim is 16 years of age
or younger, and the defense has listed as a witness or subpoenaed a parent or parents
to testify in the case and requested that the parent or parents be sequestered, the
court shall appoint a guardian ad litem to determine the best interests of the minor
victim. The guardian ad litem shall make a recommendation to the court, based on the
preferences and best interests of the victim, as to whether the parent or parents
should be permitted to sit with the victim in the court room during the duration of the
trial.

viii

QUESTIONS PRESENTED
1.

Whether and how New Hampshire Rule of Evidence 412 applies to

appellate proceedings.
2.

Whether and how the Rape Shield Law, RSA 632-A:6, II (2007),

applies to appellate proceedings.

3.

What appellate court procedures, if any, are required by the

Victims Rights Law, RSA 21-M:8-k (2012).

4.

How this Court should balance the constitutional rights of the

victim, the defendant, and the public as they pertain to the sealed portion of
the trial court record and the parties unredacted briefs and appendices.

STATEMENT OF THE CASE AND FACTS

In 2014, Seth Mazzaglia stood trial on charges of first degree murder and
other offenses, arising out the death of Elizabeth Marriott in Dover on October
9, 2012. At trial, the prosecution contended that Mazzaglia strangled Marriott,
causing her death purposefully or, in the alternative, knowingly while engaged
in the commission of felonious sexual assault. The defense at trial contended
that the State had not proved those charges beyond a reasonable doubt. In so
arguing, the defense marshaled evidence to show that Marriott had died
accidentally during a consensual sexual encounter involving BDSM sexual
techniques.
In an effort to support that theory and to respond to certain prosecution
arguments, the defense, both before and during trial, sought permission to
introduce evidence describing aspects of Marriotts prior sexual relationships,
interests, and experiences. The State objected. The superior court pleadings
and orders relating to that dispute were filed under seal, and all in-court
discussions of the issue were held in chambers or at bench conferences outside
the hearing of the public. Ultimately, the trial court sustained the States
objections and barred the defense from introducing any of the proffered
evidence.
New Hampshire law recognizes a rape shield principle, under which
evidence of prior consensual sexual activity between the victim and any
person other than the defendant shall not be admitted into evidence in any
prosecution . . . . N.H. R. Evid. 412(a); see also RSA 632-A:6, II (codifying
2

principle in prosecutions brought under RSA 632-A). However, both Rule 412
and this Courts decisions recognize that that principle is not absolute; rather,
in some circumstances, the admission of such evidence at trial can be
constitutionally required. See, e.g., State v. Howard, 121 N.H.53, 58-59 (1981);
Gagne v. Booker, 680 F.3d 493, 514 (6th Cir. 2012) (en banc). Such evidence
can also become admissible if the State opens the door at trial by creating a
misimpression that the evidence would rebut. See generally State v. White, 155
N.H. 119 (2007) (discussing opening-the-door doctrine).
After reviewing the record and the law, appellate counsel raised the claim
that the trial court erred in excluding the proffered evidence. The outcome of
Mazzaglias appeal, therefore, turns on this Courts assessment of his
challenges to the trial courts reasoning in excluding that evidence from the
trial. Because this Courts review of the trial courts reasoning will depend on
the details of the proffered evidence and their relation to the cases disputed
issues, the appellate briefs must discuss the proffered evidence. Likewise, any
oral argument will involve some discussion, and therefore some disclosure, of
the content of the proffered evidence. Finally, any opinion this Court ultimately
issues addressing the merits of Mazzaglias appellate claims, unless phrased in
wholly conclusory terms, will have to discuss the proffered evidence.
As the deadline for the filing of Mazzaglias opening brief approached,
appellate counsel filed, under seal, a motion for leave to file an unredacted brief
or for clarification as to the extent to which the briefs shall be sealed. The State
objected to the filing of unsealed pleadings disclosing the content of the
3

proffered evidence. This Court initially remanded the matter to the superior
court for a determination of whether the record relating to the appellate issue
should remain sealed. The trial court ultimately confirmed that the records
kept in the superior court clerks office would remain sealed.
This Court accordingly directed that the parties on appeal should file
their briefs and associated documents under seal. The Court further instructed
each party to file a redacted version of its brief, to be available for inspection by
the public. In due course, the parties complied with those instructions. The
redacted briefs provide the public no information even about the nature of the
disputed legal issues, much less any information about the content of the
proffered evidence.1
Thereafter, at the Courts direction, the parties filed further pleadings
addressing the extent to which the record in the appellate court should remain
under seal. After ruling that the relevant documents would be unsealed shortly
before the oral argument then scheduled for June 22, 2016, this Court granted
a motion to reconsider. The Court postponed the oral argument and directed
the parties to file briefs addressing the four questions set forth above. The
Court scheduled oral argument on this preliminary matter for September 21,
2016. It deferred further processing of the merits of Mazzaglias appellate

At that time, counsel understood even the general nature of the legal issue to be covered by
the order. More recently, pleadings and court orders filed in the public record have revealed the
rape shield dimension of the legal issue. For example, a pleading filed by the intervenor has
described the sealed portion of the record as relating to the private, personal details of the
alleged prior consensual sexual activity of . . . Elizabeth Marriott. Obj. to Mot. for Appt. of
Counsel (6/29/16) at 1 (emphases omitted). This brief accordingly refers to the proffered
evidence at a similar level of generality.
1

claims pending a decision on the matter of public access to the materials and
proceedings on the basis of which it will eventually decide the appeal.

SUMMARY OF THE ARGUMENT

1.

Every provision of Evidence Rule 412 is expressly directed to a

court in which evidence can be introduced. Those provisions do not apply on

appeal because the Supreme Court is not such a court. Even if this Court
could, under some circumstances, preside over an evidentiary hearing in a
criminal case, the present dispute does not call upon the Court to do so.
2.

RSA 632-A:6, II, like Rule 412, governs the admission into

evidence of prior consensual sexual activity. The same considerations about

this Courts appellate function thus apply as much to the statute as to the rule.
3.

RSA 21-M:8-k, II(a), articulates a principle of respect, not a

confidentiality privilege. The provision does not enact a standard a court can
apply to the resolution of any dispute in which there are values in conflict. RSA
21-M:8-k, II(m), also does not justify the relief the State seeks.
4.

The United States and New Hampshire Constitutions guarantee a

right of public access to the documents and proceedings on the basis of which
this Court will decide the appeal. Both prongs of the experience and logic test
support the finding of a right of public access. Countervailing concerns about
privacy do not outweigh the important fairness considerations that support an
open appellate process.

I.

THE COURT SHOULD NOT DECIDE THIS APPEAL AFTER A CLOSEDDOOR ORAL ARGUMENT, ON THE BASIS OF A SECRET OR PARTIALLY
SECRET RECORD, AND IN A CONCLUSORY OR NON-PUBLIC ORDER.
As signaled by the postponement of the previously-scheduled oral

argument pending a decision about whether to maintain under seal the

appellate briefs and appendices, the ruling about the status of the briefs and
appendices will have implications for oral argument. It will also have
implications for the nature of this Courts explanation of its reasoning when
finally it decides the appeal. While the dispute thus far has focused on the
briefs and appendices, the position taken by the State and by counsel for the
Marriotts implies that the factual content of the proffered evidence must not be
disclosed to the public, or at least not disclosed through the appellate process.2
In other words, it is not the appellate documents as such that they seek to
keep secret, but rather the information contained in them. If the present
dispute implicated only the briefs and appendices, it would not much matter
because a significant part of that information would, in the natural course of
events, come out during oral argument and in this Courts opinion unless that
opinion is redacted or conclusory.
If the Court adopts the view that the factual content of the proffered
evidence must not be disclosed to the public, it would follow not only that the
briefs and appendices must remain sealed, but also that the oral argument

A distinctive, though not unique, feature of the privacy claim here is that it does not assert
that the information in question is secret, but rather only that it may not be disclosed in the
courts via the appellate process. Nobody has claimed that the individuals who are the ultimate
sources of the proffered evidence violated any obligation in speaking with investigators about
that information, or that they have any current legal obligation to keep the information secret.
They are free to disclose it or not, as they choose.
2

must be closed to the public and the eventual opinion in the case, at least if it
affirms Mazzaglias conviction, must be redacted of all descriptions of the
proffered evidence.
In theory, the Court could take partial measures. It could hold oral
argument in open court while keeping the briefs and appendices, or parts
thereof, under seal. It could unseal the briefs while keeping the appendices
sealed. It could seal the briefs and appendices and close the courtroom during
oral argument, but publish an unredacted and appropriately-detailed
description of the proffered evidence in its opinion. It is difficult, however, to
reconcile such partial measures with the view that the facts alleged in the
proffered evidence must not be disclosed to the public to any extent and in any
form via the appellate process. Moreover, as long as any information of
significance to the legal issue remains sealed, it is difficult to reconcile the
resulting appellate process with the values and purposes served by keeping
courts open to the public.
Collectively, the four questions asked by the Court in its June order pose
a legal issue answerable by reference to statutes, rules, and constitutional
doctrines. At root, the issue is whether the law requires this Court to maintain
under seal the information on the basis of which it will decide the appeal, and
if so, to what extent.
Counsel proposes the following answer. No statutes, rules, or legallycognizable interests justify treating the documents in this case, or the
information they contain, as confidential. First, no statute or rule requires that
8

the information be kept confidential. Compare, e.g., Sup. Ct. R. 12(1)(b)

(identifying categories of cases that are confidential); RSA 329:26 (establishing
confidentiality privilege in connection with doctor-patient communications).
The fact that the Superior Court ordered the matter to be kept under seal in
that court does not dictate the outcome in this Court. See Sup. Ct. R. 12(2)(a)
(providing that materials maintained under seal in the Superior Court shall
remain confidential, unless and until the [Supreme Court] determines . . . that
there is no statute, administrative or court rule, or other compelling interest
that requires that the case record or portion of the record be kept confidential. .
. .). The pertinent constitutional analysis leads to the conclusion that the
appellate proceedings in the case not be kept secret. In separate sections
below, this brief develops that answer by reference to the four questions raised
in this Courts June order.

A.

The applicability of Rule 412 to appellate proceedings.

Evidence Rule 1101(a) provides that the rules apply to the proceedings
in the district and probate divisions of the circuit court, the superior court, and
the supreme court. It is therefore clear that the Rules of Evidence can apply in
this Court. The applicability obstacle, thus, does not lie in the fact that the
mandates contained in Rule 412 appear in an evidence rule.
The obstacle, rather, arises out of the fact that all of the mandates in
Rule 412 govern procedures and standards relating to the introduction of
evidence in a court. Rule 412(a)s provisions govern the inquiry into when
9

evidence of prior consensual sexual activity between the victim and any person
other than the defendant can be admitted into evidence in any prosecution or
in any pretrial discovery proceeding undertaken in anticipation of a
prosecution . . . . Rule 412(b) contains mandates about the pre-trial and intrial litigation of defense requests to introduce evidence falling within the scope
of the rule.
In short, every provision of Rule 412 is expressly directed to a court in
which evidence can be introduced. Those provisions do not apply on appeal
because the Supreme Court is not such a court. See, e.g., Flaherty v. Dixon,
158 N.H. 385, 387 (2009) (On appeal, we consider only evidence and
documents presented to the trial court). Rule 412s provisions would apply in
this Court only if it heard witnesses and otherwise received new evidence.
Moreover, even if this Court could hold evidentiary hearings in criminal
cases, Rule 412s provisions still would not apply to the present dispute about
appellate procedure, because the dispute does not call upon the Court to
convene an evidentiary hearing. Rather, the controversy concerns the sealing of
the briefs and appendices, the closure to the public of oral argument, and the
prospect of a reasoned published opinion. In deciding how to handle those
matters, this Court does not convene an evidentiary hearing. If Rule 412 were
amended such that it contained mandates regulating the sealing of materials in
an appellate court, the conduct of oral argument, and the publishing of
opinions, those provisions would apply to the present dispute.

10

This Court, however, interprets rules, like statutes, in light of their plain
language and ordinary meaning. State v. Long, 161 N.H. 364, 367 (2011). To
construe Rule 412 in its current form as regulating those matters would be to
read into the rule language it does not contain. This Court will not adopt an
interpretation that adds language to a rule. See State v. Dor, 165 N.H. 198, 201
(2013) (making point in context of statutory interpretation).
In a prior memorandum, the State suggested that Rule 412s concept of
a prosecution extends beyond the trial court into the appellate court. Mot. to
Stay (6/13/16) at 5-6. That may well be. Indeed, as already noted, Rule
1101(a) makes clear that pertinent mandates contained in evidence rules will
apply in the Supreme Court. The applicability obstacle, though, remains
untouched even if this Court agrees that a criminal prosecution continues
through appellate proceedings. The Rules mandates address only the
standards and procedures for pre-trial and in-trial determinations about the
admissibility of evidence in a prosecution. The Rule says nothing about the
sealing of appellate documents, the closure of appellate oral argument, or the
release to the public of an appellate decision.
The State has also argued that Rule 412 provides that the sealed
matters here remain confidential until ruled admissible at trial. Supp. Memo.
(5/27/16) at 4. Those words, however, do not appear in Rule 412. Rule 412(b)
provides that the defense shall have an opportunity, in chambers, to
demonstrate, with regard to pre-trial discovery, that information sought to be
discovered will be admissible, and, with regard to use of evidence at trial, that
11

the proffered evidence should be admitted. In short, the rule provides for
closure of trial court proceedings leading to an admissibility ruling. A provision
for litigating an issue pre-trial in chambers does not equate to the kind of
broad confidentiality privilege that is created, for example, in other contexts by
the privilege rules collected in Article V of the Rules of Evidence.
For all the reasons stated above, Rule 412 does not govern this Courts
decision with respect to the sealing of the appellate documents, the openness of
oral argument, or the publishability of a detailed opinion.

B.

The applicability of the Rape Shield Law to appellate

proceedings.

The Rape Shield Law provides that [p]rior consensual sexual activity
between the victim and any person other than the actor shall not be admitted
into evidence in any prosecution under this chapter. RSA 632-A:6, II (2007).
The statute thus tracks almost verbatim a part of Rule 412(a). It differs only in
that: 1) unlike Rule 412, the statute applies only to prosecutions brought
under RSA 632-A; 2) the statute substitutes the word actor for the word
defendant; and 3) the statute omits the contextualizing language that
precedes and follows the otherwise common principle stated in both the statute
and the rule.
Crucially for present purposes, the statute, like the rule, governs the
admission into evidence of prior consensual sexual activity. The points and
authorities cited in Section A above therefore apply equally with regard to the
statute. RSA 632-A:6, II, governs the admissibility of evidence, and this Court
12

does not hold evidentiary hearings in criminal cases. Like the rule, the statute
does not provide that proffered evidence addressed under the rape shield
doctrine should be maintained under seal thereafter.
In that respect, RSA 632-A:6, II differs from statutes in some states
which expressly provide for the continued maintenance of evidence under seal
in appellate courts. See, e.g.. People v. Bryant, 94 P.3d 624, 631 & 636 (Colo.
2004) (discussing C.R.S.A. 18-3-407(2)(f), which provides that All motions
and supporting documents filed pursuant to this section shall be filed under
seal and may be unsealed only if the court rules the evidence admissible and
the case proceeds to trial . . . .). New Hampshires statute contains no
analogous language.
Although this Court has not explicitly addressed the issues posed in its
June order, prior appeals involving rape shield issues seem to have been
conducted on the basis of an unsealed record. See, e.g., State v. Cannon, 146
N.H. 562 (2001); State v. Dewitt, 143 N.H. 24 (1998); State v. Rogers, 138 N.H.
503 (1994); State v. Colbath, 130 N.H. 316 (1988); Howard, 121 N.H. at 55.
Handling the appeals in that manner has not, in the past, deprived the Rape
Shield Law of value, or defeated the goals the statute serves. This Court must
accordingly conclude that RSA 632-A:6, II does not command the sealing of
appellate documents and the closure of appellate proceedings.

13

C.

Appellate procedures required by the Victims Rights Law,

RSA 21-M:8-k (2012).

Unlike Evidence Rule 412 and RSA 632-A:6, II, the Victims Rights Law is
framed in terms sufficiently general that its principles extend beyond the
context of decisions about whether to admit evidence at a trial or evidentiary
hearing. It does not, however, mandate any appellate procedures relevant to
the issue before the Court.
In arguing to the contrary, the State has cited RSA 21-M:8-k, II(a), which
guarantees to victims the right to be treated with fairness and respect for their
dignity and privacy throughout the criminal justice process, and RSA 21-M:8k, II(m), which promises the right of confidentiality of the victims address,
place of employment, and other personal information.
Paragraph II(a) articulates a principle of respect, not a confidentiality
privilege. In this regard, it resembles the clause in Part I, Article 18 of the New
Hampshire Constitution, which provides that the true design of all
punshments [is] to reform, not to exterminate mankind. Of that provision, this
Court has said that it is best read as a general statement of principle rather
than as a mandatory standard which creates affirmative rights. State v.
Evans, 127 N.H. 501, 504-05 (1985). Some provisions of the Victims Rights
law create affirmative rights, such as Paragraph II(e)s declaration of a right to
attend trial and all other proceedings the accused has the right to attend.
Paragraph II(a)s provision that victims have the right to be treated with
fairness and respect for their dignity and privacy throughout the criminal
justice process, is not among them. The principle articulated in the paragraph
14

is important and undoubtedly valid; indeed, every human being surely has the
right to be treated with fairness and respect for their dignity and privacy
throughout the criminal justice process. But the provision does not enact a
standard a court can apply to the resolution of any dispute in which, as here,
there are values in conflict.
Paragraph II(m), on which the State has also relied, equally fails to justify
the relief the State seeks. With its specific listing of address and place of
employment, that provision seems to contemplate by the phrase other
personal information only similar information, such as phone numbers and
email addresses. See State v. Beauchemin, 161 N.H. 654, 658 (2011)
(explaining principle of ejusdem generis to effect that general words in statutes
are construed to embrace only objects similar in nature to those enumerated
by the statutes specific words). When the legislature intends to enact a general
confidentiality privilege, it does so expressly. See, e.g., RSA 516:35 (enacting a
privilege covering confessions or confidences disclosed to a pastor); RSA 329:26
(enacting a physician-patient privilege); see also 5 U.S.C. 552a (Privacy Act of
1974; establishing right not to have government agencies disclose certain kinds
of information about individuals without their consent). The New Hampshire
legislature has not established such a right to bar disclosure of the kind of
information at issue here.
Further confirmation of the conclusion that the Victims Rights Law does
not compel the appellate remedy sought here appears in the fact that
Paragraph II(q) explicitly sets forth the rights of victims vis--vis appeals,
15

without mentioning a right to the continued confidentiality of any records. That

paragraph provides instead that victims shall have the right to be notified of
an appeal, an explanation of the appeal process, the time, place and result of
the appeal, and the right to attend the appeal hearing. RSA 21-M:8-k, II(q).
For all the reasons stated, this Court must conclude that the Victims
Rights Law does not mandate that the appellate materials be sealed and the
proceedings be closed to the public.

D.

Balancing the constitutional rights of the victim, the

defendant, and the public.

The Courts final question shifts the focus from statutes and court rules
to constitutional doctrines. Even if the Court construes the statutes or rules
discussed above to require the sealing of the documents, the closure of the oral
argument, and/or the redaction of the published opinion, those statutes or
rules must yield if the pertinent constitutional doctrines require public access.
Our country has a long history of distrust for secret proceedings.
United States v. Index Newspapers, 766 F.3d 1072, 1084 (9th Cir. 2014).
Distrust for secret trials has been variously ascribed to the notorious use of
this practice by the Spanish Inquisition, to the excesses of the English Court of
Star Chamber, and to the French monarchys abuse of the lettre de cachet. In
re Oliver, 333 U.S. 257, 268-69 (1948). Underlying that distrust is the fact
that, while [p]eople in an open society do not demand infallibility from their
institutions, . . . it is difficult for them to accept what they are prohibited from
observing. Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 572 (1980).
16

Courts accordingly recognize a common-law right of public access to

inspect and copy public records and documents, including judicial records and
documents. Nixon v. Warner Communications, Inc., 435 U.S. 589, 597 (1978);
see also Associated Press v. State of N.H., 153 N.H. 120, 125-26 (2005)
(recognizing common-law right of access). There is also a First Amendment
right of the public to attend criminal trials. Richmond Newspapers, 448 U.S. at
580. This Court has similarly recognized that the New Hampshire Constitution
creates a public right of access to court records. Associated Press, 153 N.H. at
129 (citing Petition of Keene Sentinel, 136 N.H. 121 (1992), and Petition of
Union Leader Corp., 147 N.H. 603 (2002)).
New Hampshire has a strong tradition of recognizing the right of public
access to governmental proceedings and records. State v. DeCato, 156 N.H.
570, 573 (2007). Moreover, the public right of access to court proceedings and
records pre-dates the State and Federal Constitutions and is firmly grounded
in the common law. Id. (quoting Associated Press, 153 N.H. at 125). That
tradition is confirmed in Part I, Article 8 of the New Hampshire Constitution,
which provides:
All power residing originally in, and being derived
from, the people, all the magistrates and officers of
government are their substitutes and agents, and at
all times accountable to them. Government, therefore,
should be open, accessible, accountable, and
responsive. To that end, the publics right of access to
governmental proceedings and records shall not be
unreasonably restricted.
As this Court has noted, the last two sentences of that provision were
added in 1976 to further the tradition of open court proceedings and records,
17

consistent with the purpose of assuring the accountability of the judiciary.

DeCato, 156 N.H. at 574 (quoting Associated Press, 153 N.H. at 125). The
explicit incorporation of the right of access to governmental documents into the
State Constitution provides greater textual support to the constitutional right
of access to court records than does the First Amendment. Associated Press,
153 N.H. at 128 (emphasis in original). The constitutional right of access draws
also on the free speech clauses of the United States and New Hampshire
Constitutions, as this Court has recognized that the publics right of access to
court records and proceedings is grounded in Part I, Article 22 of the State
Constitution. Id.
Nevertheless, the right of public access to court proceedings is not
absolute, and under some circumstances, court proceedings can be closed to
the public. Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 9 (1986). As a
jurisprudential matter, the analysis of whether the public has a right of access
to a particular document or hearing may be divided into three steps. First, a
court must determine whether a public right of access attaches to the
particular kind of case or proceeding at issue. For example, a public right of
access attaches to sexually-violent-predator civil commitment proceedings,
DeCato, 156 N.H. at 577, and domestic relations proceedings, Associated
Press, 153 N.H. at 133, but not to involuntary civil commitment proceedings
under RSA 135-C. DeCato, 156 N.H. at 575-76.
Counsel does not understand the State or the intervenor to argue here
that the right of public access does not attach to criminal appeals when they
18

raise rape shield issues. Indeed, if no right of public access attached to this
kind of appeal, it would not have been necessary to file redacted briefs for
public inspection. Instead, the entire file would have been sealed. The disputed
issue, rather, is whether it is proper, in a proceeding to which the public right
of access attaches, to take steps to conceal from the public the factual
allegations and legal arguments on the basis of which this Court will decide the
appeal.
The second step in the analysis requires a court, when presiding over the
kind of proceeding to which the public has a right of access, to decide whether
the publics right extends to the particular documents or hearings as to which
access is disputed. Under some circumstances, courts can seal documents or
close hearings within public-access types of cases, because the controlling
experience and logic test forecloses a right of public access to those
documents or hearings. For example, although criminal prosecutions are
subject to a right of public access, Richmond Newspapers, 448 U.S. at 573-74,
there is no right of public access to grand jury hearings. Douglas Oil Co. v.
Petrol Stops Northwest, 441 U.S. 211, 218-19 (1979).
Similarly, and more closely connected to the issues here, courts have
held that it can be proper, in the context of a criminal trial, to close pre-trial
hearings at which the parties discuss the admissibility of rape shield evidence.
See, e.g., Commonwealth v. Jones, 37 N.E.3d 589, 602-03 (Mass. 2015). In
Jones, for example, the Supreme Judicial Court held that a mandatory and per
se rule requiring closure of rape shield hearings is unconstitutional, but that
19

closure of such hearings can be upheld on a case-by-case basis. In sub-section

(1) below, this brief addresses the question of whether the right of public access
extends to the appellate briefs, oral arguments, and unredacted opinions in
criminal appeals that adjudicate rape shield doctrine claims.
Even where there is a public right of access to the documents and
hearings in question, there remains a third step in the analysis. In that final
step, a court weighs the right of public access against any countervailing rights
or considerations. This step exists because the public right of access is not
absolute. Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 606-08
(1982). Sub-section (2) below considers whether the values served by a public
right of access to the briefs, oral argument, and unredacted decision outweigh
the relevant countervailing considerations.
1.

The public right of access attaches to these materials.

This Court has adopted the experience and logic test for determining
whether a right of public access attaches to a given kind of proceeding. See
DeCato, 156 N.H. at 575; see also Press-Enterprise, 478 U.S. at 8. Under that
test, a court must determine:
(1) whether the place and process have historically
been open to the press and general public, and (2)
whether public access plays a significant positive role
in the functioning of the particular process in
question.
DeCato, 156 N.H. at 575 (quoting Press-Enterprise). If the proceeding at issue
meets both prongs of the test, then the right of public access attaches.
DeCato, 156 N.H. at 575 (citing Associated Press, 153 N.H. at 131). Moreover,
20

courts apply the experience and logic test not only to the question of whether
the public right of access attaches to a given kind of case, but also to the
question of whether the public has a right of access to particular documents
and hearings within a case. See Index Newspapers, 766 F.3d at 1084
(experience and logic test also applies to the disclosure of documents
generated as part of a judicial proceeding). This Court has held that the State
constitutional right of access attaches only to those documents that are
important and relevant to a determination made by the court in its
adjudicatory function in connection with a proceeding to which the State
constitutional right of access has attached. Associated Press, 153 N.H. at 134.
As to experience, when in the past litigants have raised rape shield
issues in criminal appeals, this Court has not sealed the records or closed the
courtroom for oral argument, nor has it issued redacted opinions. See, e.g.,
Howard, 121 N.H. at 55 (describing in appropriate detail the proffered
evidence). The remedies sought by the State and Ms. Marriotts representatives
would therefore mark a departure from past practice. Such a tradition of
accessibility implies the favorable judgment of experience. Globe Newspaper,
457 U.S. at 605 (quoting Richmond Newspapers, 448 U.S. at 589 (Brennan, J.,
concurring in judgment)). The experience prong of the experience and logic
test supports a right of public access to appellate briefs, oral arguments and
unredacted opinions in criminal appeals raising rape shield claims.
Prior cases applying the logic prong address pre-trial or mid-trial closure
issues, rather than closure of a part of the appellate process. Nevertheless, the
21

discussion in those cases can inform the analysis of the question presented
here.
When assessing the logic prong, this Court and the United States
Supreme Court have recognized, with respect to criminal trial proceedings, that
public scrutiny enhances the quality and safeguards
the integrity of the fact finding process, with benefits
to both the defendant and society as a whole and
fosters an appearance of fairness, thereby heightening
public respect for the judicial process. Moreover,
public access to criminal trials permits the public to
participate in and serve as a check upon the judicial
process an essential component in our structure of
self-government.
DeCato, 156 N.H. at 577 (citing Globe Newspaper, 457 U.S. at 606). In PressEnterprise, the Court explained the value of openness thus:
The value of openness lies in the fact that people not
actually attending trials can have confidence that
standards of fairness are being observed; the sure
knowledge that anyone is free to attend gives
assurance that established procedures are being
followed and deviations will become known. Openness
thus enhances both the basic fairness of the criminal
trial and the appearance of fairness so essential to
public confidence in the system.
Press-Enterprise, 478 U.S. at 13 (emphasis in original) (citation omitted).
In DeCato, the Court applied that reasoning to sexually-violent-predator
(SVPA) civil commitment procedures, noting that [t]o enhance the quality and
safeguard the integrity of SVPA proceedings, public access must include more
than simply the information whether certain persons are committed; it should
include the factual basis that led the court to commit or release them. DeCato,

22

156 N.H. at 577. Finding both the experience and logic tests satisfied, the
Court held that the public right of access attached to SVPA proceedings.3 Id.
For analogous reasons, logic requires the recognition of a public right of
access to the documents, oral argument, and unredacted explanation of the
Courts eventual ruling. As DeCato shows, the logic test assesses the extent to
which public access would support the quality of the judicial proceedings and
the public perception of the fairness of those proceedings. To evaluate that
matter, one must contrast the appellate process as it will proceed if conducted
in secret, with the process as it would proceed if conducted in public view.
The sealing of the briefs and the closure of the oral argument would leave
the public ignorant of the precise nature of the arguments Mazzaglia has made
in claiming that the trial court erred, under the particular circumstances of
this case, in excluding the proffered evidence. The public knows now, on the
basis of the public revelation of the rape shield dimension of the appeal, only
that Mazzaglia has claimed that certain evidence about Ms. Marriotts other
sexual relationships, interests, and experiences should have been admitted. It
will not know, though, what that evidence was, why the defense thought it
should have been admitted, what the State argued in response, or why the trial
court excluded it.
If this Court agrees with Mazzaglias arguments in the merits appeal, the
matter of non-disclosure of the briefs and oral arguments would likely become
Because the trial court in DeCato had not properly applied the law, this Court remanded for
consideration of the final step of the analysis: whether, despite the fact that the public right
attached, on balance it might nevertheless be proper to seal certain documents and close
certain hearings in SVPA cases. DeCato, 156 N.H. at 577-78.
3

23

moot, as this Courts opinion would describe the evidence and arguments.
Revelation in the opinion of the proffered evidence would be proper in that
circumstance, because the Courts decision would hold that the evidence
should have been admitted at the first trial, and would likely be admissible at a
re-trial.4 In that scenario, public disclosure would come late in the appellate
process, but it would come eventually.
However, if the Court rejects Mazzaglias merits arguments after a
process in which the briefs and appendices were sealed and the oral argument
closed, fidelity to the principle of secrecy maintained to that point would seem
to require this Court to redact its opinion of any reference to the content of the
proffered evidence. Without the ability to describe the content of the proffered
evidence, the Court could not describe accurately or in any detail Mazzaglias
arguments. Without a description of those arguments, the Court could not
publish a comprehensive explanation of its reasons for rejecting them. For the
parties, the Court could provide under seal a full exposition of its analysis. For
public review, though, the Court could release only the most conclusory
statement of the result.
That scenario invites consideration of the value, both for New
Hampshires legal system as a whole and for the quality of the Courts analysis
in particular cases, of detailed published explanations of the Courts reasoning

If the Court adopted only the opening-the-door claim, reversal would not necessarily imply
that the proffered evidence would be admissible at a re-trial, as the State might not at a re-trial
repeat the door-opening choices. This Courts ruling would signify only that the proffered
evidence should have been admitted at the first trial in light of evidence and arguments
presented to the jury at that trial.
4

24

in deciding cases. This brief turns first to a description of the value of detailed
published opinions to the legal system.
Our common law system of judicial elaboration of important legal
principles depends on the availability, to future judges, of comprehensive
explanations of past decisions involving similar legal issues. If the privacy
rationale prevails in this rape shield doctrine appeal, it should equally have
prevailed in all past rape shield doctrine appeals involving similar proffered
evidence, and will prevail in all future rape shield doctrine appeals involving
such evidence. If appellate courts cannot, in their published opinions deciding
rape shield doctrine claims, discuss the facts and how the law applies to those
facts, except when reversing convictions for an erroneous exclusion of proffered
evidence, the quality of future trial court decisions will suffer. When faced with
rape shield doctrine issues in future cases, trial courts and trial lawyers will
not be able to consult meaningful and informative published appellate
decisions, or will have available only those that reverse convictions. In effect,
rape shield doctrine will become at least partially secret, even from those
charged with the responsibility for applying that doctrine. The quality of
decisions uninformed by precedent inevitably will suffer.
Confirmation of the value of the publication of judicial reasoning appears
in the fact that, even in cases where, for other reasons, appellate proceedings
are private, the ultimate decision is published. In juvenile delinquency cases,
for example, the briefs are sealed and the courtroom is closed for appellate oral
argument. However, the point of those measures in delinquency cases is to
25

protect the identity of the juvenile from public disclosure. This Court is able, by
using the juveniles initials or other identity-concealing measures, to produce
fully-published opinions that describe in appropriate detail all the facts of the
case bearing on the Courts legal analysis and conclusion. Here, by contrast,
the object of the proposed secrecy is not to protect any persons identity, but to
withhold from the public information that is crucial to understanding the legal
arguments that form the basis of the appeal.
Of greater immediate concern to Mazzaglia are the implications for the
quality of an analysis that would reject his appellate claims if this Court cannot
publish a detailed account of that analysis. It is a quintessentially human
characteristic to strive for better results in any difficult endeavor when in front
of an audience than when in private. Thus, an awareness of the broader
audience not just the client, the presiding judges and opposing counsel, but
also colleagues, other interested lawyers and the public at large undoubtedly
motivates appellate lawyers to produce better-written and more incisive
arguments. So also it must be with courts. [J]udges are human, and not
immune from psychological and unconscious influences. People v. Suazo,
992 N.Y.S.2d 1270, 1272 (N.Y. App. 2014). An analysis in an appellate opinion
that will never be seen by trial court judges, by colleagues on other appellate
benches, or by other lawyers not involved in the case, may not reach the same
high standard of quality as one that will. The Supreme Court has
acknowledged the beneficial effects of public scrutiny upon the administration
of justice. Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 492 (1975); see also
26

Richmond Newspapers, 448 U.S. at 569 n.7 (attributing to Bentham the

observation that open proceedings enhanced the performance of all involved. .
. .). In an appeal adjudicated in secret, the beneficial influence on the quality
of reasoning that comes with the anticipation of public review would be lost.
In the context of trials, the Supreme Court has repeatedly recognized
[that] one of the important means of assuring a fair trial is that the process be
open to neutral observers. Press-Enterprise Co., 478 U.S. at 7. In a similar
vein, the DeCato Court acknowledged the risks secrecy poses to fairness in
observing that public access to court proceedings and records is often critical
to ensure that court proceedings are conducted fairly and impartially and that
the judicial process is open and accountable. DeCato, 156 N.H. at 574-75.
There is no special perquisite of the judiciary which enables it, as
distinguished from other branches of democratic government, to suppress, edit,
or censor events which transpire in proceedings before it. Craig v. Harney, 331
U.S. 367, 374 (1947). There is no reason to confine that logic to trials; the same
can be said of appellate processes.
For all the reasons stated above, this Court must conclude that the right
of public access to documents and proceedings in appeals raising rape shield
issues satisfies both the experience and logic prongs of the governing test. The
Court must therefore reach the final question: whether other rights or concerns
outweigh the right of public access under the circumstances here.
2.

The balance of concerns weighs against secrecy.

Because experience and logic dictate that the publics right of access
27

extends to the documents, the Court must then determine whether any such
right is overcome by a compelling governmental interest. In Press-Enterprise,
the Supreme Court held that the presumption [of openness] may be overcome
only by an overriding interest based on findings that closure is essential to
preserve higher values and is narrowly tailored to serve that interest. . . .
Press-Enterprise, 478 U.S. at 9 (citation omitted); Globe Newspaper, 457 U.S.
at 606-07 ([w]here . . . the State attempts to deny the right of access in order
to inhibit the disclosure of sensitive information, it must be shown that the
denial is necessitated by a compelling governmental interest, and is narrowly
tailored to serve that interest).
This Court has phrased the standard as follows:
under the constitutional and decisional law of this
State, there is a presumption that court records are
public and the burden of proof rests with the party
seeking closure or non-disclosure of court records to
demonstrate with specificity that there is some
overriding consideration or special circumstance, that
is, a sufficiently compelling interest, which outweighs
the publics right of access to those records.
Associated Press, 153 N.H. at 129 (emphasis in original) (citations omitted).
Even where a sufficiently compelling interest is demonstrated, a court record
may not be kept sealed unless no reasonable alternative to nondisclosure
exists and the least restrictive means available is utilized to serve the interest
that compels nondisclosure. Id. at 129-30 (citations and quotation marks
omitted).
In order to weigh the pertinent rights and interests, it is necessary first to
identify them. In a prior pleading, the State identified the pertinent interest of
28

Ms. Marriotts representatives as rooted in a constitutional right to privacy.

Mot. to Stay (6/13/16) at 6-7. In its June 10 order, this Court acknowledged
that a provision of the Victims Rights Law gives a statutory basis to the
concern for privacy. RSA 21-M:8-k, II(a). In State v. Howard, 121 N.H. 53, 57
(1981), construing the Rape Shield Law, this Court observed that concern for
the victims of rape is proper, and the courts do have a responsibility to protect
the rape victim from questions not within the proper bounds of crossexamination and which are designed only to harass, annoy or humiliate. In
addition to the inherent value of privacy, the State has noted a related public
policy concern that victims of sexual assaults may not come forward to report
the crimes committed against them unless assured that the details of their
consensual sexual relationships will not be unnecessarily or improperly
exposed to public view. Mot. to Stay (6/13/16) at 7.
In its June 10 order, this Court articulated the publics interest as
follows:
. . . we must also consider other important interests,
such as the publics right to open courtrooms and
access to court proceedings, protected by Part I,
Articles 7, 8, and 22 of the State Constitution. See
[DeCato, 156 N.H. at 574, 575] (acknowledging that
New Hampshire is one of only a handful of States with
a constitutional provision that explicitly protects the
publics right of access to governmental proceedings
and documents, and explaining that public access to
courtrooms and court records is critical to ensure
that court proceedings are conducted fairly and
impartially and that the judicial process is open and
accountable (quotations and brackets omitted)).
The New Hampshire Guidelines relating to public access to court records
29

accordingly establish a presumption that all court records are subject to

public inspection. N.H. Guidelines for Public Access to Court Records, Section
II.5
Undersigned counsel confronts a difficulty in giving a full account of the
publics interest, in that counsel represents Mazzaglia, not the public at large.
As described above, public access to the appellate materials serves Mazzaglias
due process right to fair appellate procedures. However, the publics
constitutional right of access to court proceedings and materials may have
other roots also, not defined or limited by the extent to which access promotes
the fairness of the appellate process. In other words, even when public access
is unnecessary to guarantee fair judicial procedures, the law may, for other
reasons or in the service of other goals, grant the public a constitutional right
of access. This Court in DeCato noted that federal courts have found that the
right of public access is rooted in the First Amendment of the Federal
Constitution. DeCato, 156 N.H. at 574; see also Globe Newspaper, 457 U.S. at
603-06 (to same effect); Commonwealth v. Jones, 37 N.E.3d 589, 603 (Mass.
2015) (The closing of a criminal proceeding to the public also may implicate
rights guaranteed by the First Amendment to the United States Constitution);
Commonwealth v. Cohen, 921 N.E.2d 906, 917-18 (Mass. 2010) (to same
effect).
As the First Amendment-related goals and interests of the public and the
press exist independent of any interest of Mazzaglias, his counsel is not well-

Available at http://www.courts.state.nh.us/rules/misc/misc-8.htm (last accessed 8/15/16).

30

placed to articulate or defend them. See also State v. Macbale, 305 P.3d 107,
121 (Ore. 2013) (holding that defendants lack standing to assert publics First
Amendment rights). This brief thus has focused on the extent to which public
access enhances the quality of, and promotes the fairness of, the appellate
process. It does bear mention, though, that the motivations of members of the
public in seeking access are irrelevant. This Court cannot dictate what should
and should not interest the public. Petition of Keene Sentinel, 136 N.H. at
128.
This brief has already described the risk secrecy poses to the fairness of
the appellate procedures. Essentially, the concern is that a secret appellate
process resulting in the affirmance of Mazzaglias convictions will not involve
the same systemic assurances of quality. Also, the development of the law will
be impaired by a procedure that makes rape shield law at least partially secret.
Weighing on the other side of the balance are privacy concerns that are
similarly abstract. As this Court has noted, a generalized concern for personal
privacy is insufficient to meet the States burden of demonstrating the
existence of a sufficiently compelling reason to prevent public access.
Associated Press, 153 N.H. at 137. The demonstration of a compelling interest
thus requires a persuasive account of privacy concerns specific to the rape
shield and appellate contexts.
To a certain extent, this Courts prior opinions have linked the privacy
concern about embarrassment to the experience of having to answer questions
about other sexual relationships and experiences. See, e.g., State v. Miskell,
31

122 N.H. 842, 846 (1982). Thus, this Court noted that, in enacting the Rape
Shield Law, the legislature intended to create a testimonial privilege. Id. at
845; see also Howard, 121 N.H. at 57 (citing legislative history to effect that
statute aims to prevent unfair cross-examination of victims). Because
disclosure of information in an appellate court will not involve any questioning
of victims, that concern about the testimonial experience does not apply.
Another underpinning of rape shield doctrine is the concern that
evidence about a victims prior sexual relationships will be misused by juries.
See, e.g., Commonwealth v. Harris, 825 N.E.2d 58, 69 (Mass. 2005) (noting
concern that jurors may use evidence of prior consensual sexual relations for
irrelevant or improper purposes); State v. Jones, 230 P.3d 576, 581 (Wash.
2010) (statute aimed at ending the misuse of prior sexual conduct evidence, so
that a womans general reputation for truthfulness could not be impeached
because of her prior sexual behavior). On appeal, that concern about the
prejudicial misuse of evidence by juries does not apply, because the proffered
evidence is not being presented to a jury.
The privacy claim also rests in part on the concern that future victims of
rape will not report a crime committed against them for fear of the possible
release, in appellate proceedings, of proffered rape shield evidence. That claim
discounts the value of other protections, and ignores or minimizes other
considerations.
First, no matter what this Court decides about the appellate process, it
will remain true that the litigation of rape shield evidence issues will be
32

conducted under seal and in chambers in the trial court. To a considerable

extent, therefore, a ruling about public access to the information in appellate
courts will have no effect on the great majority of victims, given that the
overwhelming majority of criminal prosecutions end in guilty pleas, and thus
do not reach the appellate courts.
Second, victims who are well-informed about the law already know that
they have no absolute right to prevent the disclosure of proffered rape shield
evidence at trials. On the contrary, when the admission of such evidence is
constitutionally-required because its exclusion would render the trial unfair,
such evidence will be admitted at trials open to the public. Howard, 121 N.H. at
58-59. The Courts decision on this matter of appellate procedure, thus, will
not retract any previous guarantee of secrecy.
Third, contrary to intervenor counsels assertion in a prior pleading,
appellate lawyers do not raise issues for the purpose of intimidating and
embarrassing victims. Obj. to Mot. for Appt. of Counsel (6/29/16) at 2. Indeed,
the New Hampshire Reports show that appeals raising rape shield doctrine
appeals arise only occasionally in sexual assault cases. The fact that the claim
is no more prevalent than many other grounds for appeal demonstrates that its
appearance in a given case does not represent some nefarious tactic. Rather,
when raised, the claim represents only an assessment that an allegation of trial
court error in the exclusion of the evidence represents a clients best chance of
demonstrating that the trial was unfair and the resulting conviction must be
reversed. A victims decision about whether to report a crime will not change
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just because, in the future as in the past, there is a remote possibility that the
exclusion of proffered rape shield evidence will form the basis of an appellate
claim of error.
Finally, the argument for closure lacks enforceable boundaries. As the
Supreme Court noted in Globe Newspaper,
Surely it cannot be suggested that minor victims of sex
crimes are the only crime victims who, because of
publicity attendant to criminal trials, are reluctant to
come forward and testify. The States argument based
on this interest therefore proves too much, and runs
contrary to the very foundation of the right of access
recognized in Richmond Newspapers: namely, that a
presumption of openness inheres in the very nature of
a criminal trial under our system of justice.
Globe Newspaper, 457 U.S. at 610 (emphasis in original). If the Court, on a
constitutional basis, adopts a principle justifying the closure of appellate
proceedings on the basis of the privacy concern, that principle would not be
limited to appeals raising rape shield issues.
Because many of the concerns underlying the Rape Shield Law do not
apply in the appellate context, this Court should hold that they do not
outweigh the right of public access to the documents on the basis of which this
Court will decide the appeal in this case.

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CONCLUSION
WHEREFORE, Mr. Mazzaglia respectfully requests that this Court not
conduct the appellate proceedings behind closed doors and on the basis of a
secret record.
The matter has been set for oral argument on September 21, 2016.
Respectfully submitted,

By______________________________
Christopher M. Johnson, #15149
Chief Appellate Defender
Appellate Defender Program
10 Ferry Street, Suite 202
Concord, NH 03301
CERTIFICATE OF SERVICE
I hereby certify that two copies of the foregoing Brief have been mailed,
postage prepaid, to:
Peter Hinckley
Criminal Bureau
New Hampshire Attorney Generals Office
33 Capitol Street
Concord, NH 03301
Cyrus F. Rilee, III
Rilee & Associates, P.L.L.C.
264 South River Road
Bedford, NH 03110

________________________________
Christopher M. Johnson
DATED: August 22, 2016
35