2025 N.H. 20, State v. Zarella

Defense Lawyers, as amicus curiae. Michael G. Eaton on the brief), for the New Hampshire Association of Criminal Wadleigh, Starr & Peters PLLC, of Manchester (Jeffrey D. Odland and

National Alliance to End Sexual Violence, as amici curiae. Confidentiality Institute, National Network to End Domestic Violence, and Hampshire Coalition Against Domestic and Sexual Violence, Danu Center’s Rheaume on the brief), for National Crime Victim Law Institute, New Bernstein, Shur, Sawyer & Nelson, P.A., of Manchester (Hilary H.

Association, as amicus curiae. Murdough on the brief), for the New Hampshire Community Behavioral Health Sulloway & Hollis, P.L.L.C., of Concord (Robert L. Best and Sarah S. p. 3 3

production and its review of the records already produced pending notice and a 2 - b. T he intervenors requested that the trial court suspend its orders for Amendment to the New Hampshire Constitution.” See N.H. CONST. pt. I, art. also enjoys a fundamental right to privacy under the recent Right to Privacy addit ion, they claimed that “[b]esides her statutory privileges, [the complainant] B:26, RSA p. 3 330 - A:32, and New Hampshire Rule of Evidence 503(b) apply.” In provided to the complainant, “the privileges recognized in RSA 173 - C, RSA 329 because “[t]he records pertain to counseling, medical care and therapy” intervene and quash the orders for production. The intervenors asserted that, records the defendant sought (collectively, the intervenors), thereafter moved to [¶5] The complainant, joined by one of the counseling providers whose

records for in camera review. defendant’s motion and issued orders for the production of the requested The trial court, noting the lack of objection by the State, granted the claiming [the defendant] committed [acts of a buse] when someone else did.” demonstrate that [the complainant] is conflating another act of abuse and because these claims may either be demonstrably false or they may complain ant “in counseling about other claims of sexual abuse are discoverable complainant’s] allegations.” Further, he asserted that statements made by the records contain additional undiscovered statements relative to [the argued, among other things, that “there is a reasonable probability that these and medical care providers between 2009 and the present. The defendant complainant’s treatment from a number of private counseling, mental health, additional records. These requests sought information pertaining to the [¶4] The defendant subsequently moved for in camera review of

“under the applicable standards.” The trial court then reviewed the records and found them to be discoverable Court (Leonard, J.) granted the motions and ordered production of the records. prior allegations made by the complainant against the defendant. The Superior Children, Youth and Families (DCYF) abuse and neglect investigation involving The defendant also sought records from a 2009 New Hampshire Divi sion for counseling and hospitalization records for in camera review by the trial court. assented or did not object, seeking production of the complainant’s confidential Following his indictment, the defendant filed motions, to which the State either aggravated felonious sexual assault. See RSA 6 p. 3 32 - A:2, I(j), I(l), II (Supp. 2024). 364 (2022). The defendant, Gene L. Zarella, is charged with four counts of necessary. See In the Matter of Liquidation of Home Ins. Co., 175 N.H. 363, interlocutory appeal statement and rely upon the record for additional facts as [¶3] We accept the statement of the case and facts as presented in the

Accordingly, we vacate the trial court’s order and remand. statutory privileges apply, demonstrate an essential need for the records. p. 4 4

private organizations. standard for obtaining in camera review and disclosure of records held by this case are not in the State ’s possession, the parties’ arguments focus on the or privileged records. Because the counseling and medical records sought in defendant must make to obtain in camera review and disclosure of confidential adoption of Part I, Article 2 - b of the State Constitution alters the showing a [¶9] The first question presented in this appeal asks whether the

A. Question 1

questions to this court. court granted the motion for interlocutory appeal and transferred two order denying her motion to quash. Over the defendant’s objection, the trial [¶8] The complainant thereafter moved for interlocutory appeal of the

statements regarding her allegations. defendant had sufficiently alleged that the complainant made inconsistent the government al intrusion of an in camera review would be minimal and the ‘plausible theory of relevance and materiality. ’” The trial court reasoned that is ‘based on more than bare conjecture’ and [the defendant] has presented a complainant] may have made additional exculpatory statements in counseling satisfied the standard to obtain in camera review because his “theory that [the [¶7] Applying Gagne, the trial court concluded that the defendant had

into account [the complainant’s] rights under Article 2 - b.” explained that “if the Court finds disclosure of records necessary, it will take that “the Gagne standard remains the appropriate standard of review” and accommodate Article 2 - b protections.” Accordingly, the trial court determined counseling records,” it declined to “dispense wholesale the historic precedent to reassessment of the procedures for review and disclosure of an alleged victim’s Although the trial court “acknowledge[d] that Article 2 - b requires a obtaining in camera review and disclosure of confidential or privileged records). framework.” See Gagne, 136 N.H. at 10 p. 4 4 - 06 (establishing sta ndard for Article 2 - b provides and, specifically, [whether] Article 2 - b alter[s] the Gagne counseling records,” and, therefore, the question is “how much protection trial court determined that “Article 2 - b applies to a court’s in camera review of complainant’s counseling and mental health records for in camera review. The but, following a hearing, denied the motion to quash production of the [¶6] The Superior Court (Ignatius, J.) granted the motion to intervene

privileges. hearing on the complainant’s constitutional right to privacy and statutory p. 5 5

“e ssential and reasonably necessary to permit counsel to adequately cross courts must permit defendants to use privileged material if such material is we held that under the Sixth Amendment to the Federal Constitution, trial Farrow, 116 N.H. 731, 733 (1976). See Gagne, 136 N.H. at 104 - 0 p. 5 5. In Farrow, use privileged information at trial, Gagne reaffirmed our holding in State v. [¶13] Regarding the second issue, the standard a defendant must meet to

the mere existence of counseling records.”). trigger in camera review, the defendant must assert some factual basis beyond (quotation omitted); see also State v. Hoag, 14 p. 5 5 N.H. 47, 50 (2000) (“In order to in reasonable probability, will be explained by the information sought.” Id. must present some specific concern, based on more than bare conjecture, that, not required to prove that his theory is true.” Id. “At a mi nimum, a defendant review of the protected documents, cf. Ritchie, 480 U.S. at 58 n.15, but he is present a plausible theory of relevance and materiality sufficient to justify his defense.” State v. Graham, 142 N.H. 357, 363 (1997). “To do so, he must meaningfully articulate how the information sought is relevant and material to trigger an in camera review is not unduly high,” but a defendant “must [¶12] We have since explained that t he “threshold showing necessary to

defense.” Id. that the records contain information that is material and relevant to his or privileged records, the defendant must establish a reasonable probability Therefore, we held that “in order to trigger an in camera review of confidential nature of confidential records without having prior access to them. Id. warranted, cannot realistically expect defendants to articulate the precise recognized that trial courts, when determining whether an in camera review is right to obtain evidence helpful to his defense. Gagne, 136 N.H. at 10 p. 5 5. We protecting the confidentiality of child abuse records against the defendant’s due process considerations require trial courts to balance the State’s interest in analysis in Pennsylvania v. Ritch i e, 480 U.S. 39 (1987), and concluded that [¶11] As to the first issue, we followed the United States Supreme Court’s

potentially useful.” Id. review of the privileged information has revealed evidence that could be use the privileged information in the actual trial of his case, assuming the Id. “The second issue is what showing must the defendant make in order to make to the trial court in order to obtain a review of the privileged information.” related issues. Id. at 104. “The first issue is what showing must the defendant Federal Constitution. Gagne, 13 p. 6 6 N.H. at 102. We addressed two distinct but Article 1 p. 5 5 of the State Constitution and the Fourteenth Amendment to the records in the possession of DCYF violated his due process rights under Part I, that the trial court’s refusal to conduct an in camera review of confidential disclosure of confidential or privileged records. In Gagne, the defendant argued establish the standard a defendant must meet to obtain in camera review and [¶10] W e begin with a brief discussion of Gagne and its progeny, which 6

State Constitution. See N.H. CONST. pt. I, art. 2. Among those Article 2 rights “natural, essential, and inherent rights” enumerated in Part I, Article 2 of the creates a constitutional right to privacy. See id. This right is among the natural, essential, and inherent.” N.H. CONST. pt. I, art. 2 - b. Article 2 - b to live free from governmental intrusion in private or personal information is [¶1 p. 6 6] Enacted in 2018, Part I, Article 2 - b provides: “An individual’s right

concluded that Gagne, as clarified by Girard, remain s the applicable standard. obtaining in camera review and disclosure and that the trial court correctly The defendant contends that Part I, Article 2 - b does not alter the standard for disclosure of confidential or privileged records held by private organizations. adopt a heightened standard for obtai ning in camera review and, ultimately, Cressey, limit the application of Gagne to records in the State’s possession, and of Part I, Article 2 - b of the State Constitution, we should overrule this part of [¶15] The complainant and the State argue that, in light of the adoption

Id.

maintained by a non - public entity. less worthy of protection simply because he seeks information belongs to a State agency. Likewise, a defendant ’ s rights are no in both cases. A record is no less privileged simply because it against the interests and benefits of confidentiality, applies equally rationale in Gagne, balancing the rights of a criminal defendant agency and the privileged records of a private organization. The Gagne did not distinguish between the privileged records of a State

possession. Id. As we explained: parties as it does to cases wh ere the records are in the government’s defendant seeks in camera review of privileged records held by private third that the standard established in Gagne applies equally to cases where a information relevant and material to his defense.” Id. at 413. We reasoned defendant establish a reasonable probability that the [notes] contain counseling sessions by a privately employed psychologist “should the retrial, the trial court must conduct an in camera review” of notes made during trial.” Cressey, 137 N.H. at 412 - 13. W e concluded that, “in the event of a judicial economy to the extent [the issue is] likely to arise again in a second after finding reversible error on separate grounds, and solely “in the interest of There, we addressed the issue of in camera review of privileged records only [¶14] Here, the parties’ arguments concern our decision in Cressey.

(quotation omitted). fact contained in the records.” State v. Girard, 1 p. 7 73 N.H. p. 6 619, 628 (2020) records, the trial court must determine if material and relevant evidence is in at 732 - 33. Since deciding Gagne, w e have clarified that “in reviewing the examine for the purpose of showing unreliability and bias.” Farrow, 116 N.H. 7

preserved for review. conclude that the complainant presented this issue to the trial court and that it therefore is therefore not preserved for our review. However, b ased upon our review of the record, we holding in State v. Cressey, 13 p. 7 7 N.H. 402, 413 (1993), should be overruled and that the issue is The defendant asserts that the complainant failed to sufficiently argue in the trial court that our 1

Ritchie due process analysis necessarily assumed that the Pennsylvania CYS see also State v. Pinder, 6 p. 7 78 So. 2d 410, 414 (Fl a. Dist. Ct. App. 1996) (“The possession. See Gagne, 136 N.H. at 102, 105; Ritchie, 480 U.S. at 4 3, 59 - 60; [¶20] B oth Gagne and Ritchie involved records in the government’s

private actors, thereby undermining the counselor - patient relationship.” 1 incorrectly concluded that Ritchie and Gagne apply to records in t he hands of constitutional law. In the State’s view, “Cressey ’s expansion of Gagne matter of federal constitutional law or “disconcerting” as a matter of state — entities. The State agrees and argues that Cressey is either incorrect as a Gagne ’s holding to include records possessed by private — rather than public misunderstanding of the state action doctrine” because it erroneously extended [¶19] T he complainant asserts that Cressey represents “a fundamental

Article 2 - b abrogates our holding in Cressey. in the possession of private organizations, the question is whether Part I, N.H. CONST. pt. I, art. 2 - b.) Accordingly, because the records sought here are otherwise a defendant would have no means to access those records.” (Quoting them to the prosecutor and defendant is ‘governmental intrusion’ because court’s in camera review of those records to determine whether to disseminate or personal information. ’” Nor do they take issue with its statement that “a complainant’s counseling and mental health records “are indisputably ‘private [¶18] The parties do not challenge the trial court’s determination that the

rebalancing of the rights that factored into our decision in Cressey. whether, as the complainant and the State argue, Article 2 - b mandates a Chandler, 1 p. 7 76 N.H. 216, 233 (2023). However, w e have not yet considered other things, an individual’s rights under Part I, Article 2 - b, if any. S ee State v. confidential records following an in camera review, should account for, among that trial courts, when considering whether to disclose privileged or confidential records in criminal proceedings. W e have previously instructed issue of Part I, Article 2 - b’s application to in camera review of privileged or [¶17] This appeal presents the first occasion for this court to address the

humankind.” Burrows v. City of Keene, 121 N.H. 590, 596 (19 p. 8 81). rather are recognized to be among the natural and inherent rights of all Hampshire Constitution “are not bestowed by that constitutional provision but have previously recognized, t he rights identified in Part I, Article 2 of the New protecting, property; and . . . seeking and obtaining happiness.” Id. As we are “the enjoying and defending life and liberty; acquiring, possessing, and 8

process to demand only that whe n compulso ry discovery is made available in a afforded.” (quotation omitted)). “[T]he Supreme Court has construed due has little to say regarding the amount of discovery which the parties must be Brady did not create one; as the Court wrote recently, the Due Process Clause (“There is no general constitutional right to discovery in a criminal case, and of private organizations. See Weatherford v. Bursey, 429 U.S. 545, 559 (1977) defendant has no constitutional due process right to records in the possession government’s possession. See Ritchie, 4 p. 8 80 U.S. at 57. T herefore, t he right to disclosure of exculpatory evidence extends only to records in the [¶23] A s we have explained, the defendant ’s constitution al due process

right to privacy in Part I, Article 2 - b compel a different analysis. reexamination of Cressey ’s reasoning and consideration of the constitutional private organizations. See Cressey, 137 N.H. at 413. However, our in camera review and disclosure of privileged or confidential records held by [¶22] Here, in a case factually analogous to Cressey, the defendant seeks

was incorrectly premised upon the defendant’s right to due process. Amendment.” Hach, 162 F.3d at 947. Accordingly, our conclusion in Cressey there can be no ‘state action’ and consequently, no violation of [the] Fourteenth held records.”). “[I]f the documents are not in the government’s possession, 990 N.W.2d 174, 1 p. 8 83 (Wis. 2023) (“Ritchie simply does not apply to privately States v. Hach, 162 F.3d 937, 947 (7th Cir. 1998); see also State v. Johnson, has no obligation to seek out such information from third parties.” United obligation to tender to the defense all exculpatory records in its possession, it that is favorable to the defense. See id. “[W]hile the government has an prosecution’s constitutional obligation to disclose evidence in its possession Cressey, 137 N.H. at 413. Consequently, Cressey did not implicate the must meet to access privileged records held by a private organization. See [¶21] The question in Cressey, however, was the standard a defendant

records sought. See id. Ga gne, like Ritchie, were premised upon the government possessing the defense.” Gagne, 136 N.H. at 105 - 06. The due process considerations in abuse records against the defendant’s right to obtain evidence helpful to his Ritchie, balanced “the State’s interest in protecting the confidentiality of child analysis under the Fourteenth Amendment to the Federal Constitution in (emphasis added)). Gagne, following the United States Supreme Court’s doubt that the undisclosed evidence would not have affected the verdict.” the prosecution, the burden shifts to the State to prove beyond a reasonable defendant that favorable, exculpatory evidence has been knowingly withheld by also State v. Laurie, 1 3 p. 9 9 N.H. 325, 330 (1995) (“U pon a showing by the material to guilt or punishment.” Ritchie, 4 p. 8 80 U.S. at 57 (emphasis added); see turn over evidence in its possession that is both favorable to the accused and material.”). A s a result, both cases implicated the prosecution’s “obligation to was a governmental agency subject to the obligation to disclose Brady 9

also RSA 173 - C:1, IV (2022) (defining rape crisis center). services and has completed the requisite training. RSA 173 - C:1, V (2022); see appointed or who volunteers in a rape crisis center” who renders certain “Sexual assault co unselor” is defined as “any person who is employed or does not disclose the information to a third person.” RSA 173 - C: 1, I (2022). relationship and in confidence by means which, so far as the victim is aware, and a sexual assault or domestic violence counselor in the course of that “information transmitted” between a victim of “an alleged sexual assault . . . (2022). RSA chapter 173 - C defines “c onfidential communication” as disclosed only with the prior written consent of the victim.” RSA 173 - C:2 counselor” and provides that such communications or records thereof “may be made by the victim to a sexual assault counselor or a domestic violence [¶27] RSA 173 - C:2 creates a privilege for “confidential communications

privileged under RSA 32 p. 9 9 - B:26 and RSA 330 - A:32. as are available for the attorney - client privilege” for mental health records chapter 173 - C, and either an “essential need” standard or “the same standards sought: the “substantial likelihood” standard for records privileged under RSA for obtaining in camera review depending upon the nature of the records Both the complainant and the State assert that we should apply two standards existing statutory processes to resolve disputes concerning record disclosure.” fundamental privacy rights” and that “Article 2 - b frees this Court to implement balancing test with standards and processes respecting a private third party’s records. The complainant argues that we should replace Cressey ’s “two - step nor the State urge that this court adopt an absolute bar to obtaining privileged the possession of private organizations. We note that neither the complainant standard for obtaining in camera review of confidential or privileged records in [¶26] In light of the foregoing, we must next determine the appropriate

B. Question 2

held by private organizations. Cressey ’s application of Gagne to cases in which the defendant seeks records and nondisclosure. Accordingly, we conclude that Part I, Article 2 - b abrogates defendant to th e complainant’s privately held records — favor nonproduction right to privacy, together with the absence of a due process right entitling the [¶25] On balance, these considerations — the complainant’s fundamental

personal information” within the scope of Article 2 - b’s right to privacy. d ispute in the instant case that the complainant’s records are “private or private or personal information.” N.H. CONST. pt. I, art. 2 - b. There is no Article 2 - b, which recognizes the natural and inherent right to privacy “in [¶24] Further, after we decided Cressey, New Hampshire voters approved

the government.” State v. Heath, 12 p. 9 9 N.H. p. 10 102, 109 (1986). criminal case, it must be provided to the defense on the same terms as it is to 10

the communication will be protected from disclosure. Id. believes that no one will learn the contents of the communication except a privileged person, then Gov’t Ctr., 163 N.H. 613, 615 (2012) (quotation omitted). If the communicating person reasonably necessary for the transmission of the communication.” Prof. Fire Fighters of N.H. v. N.H. Local furtherance of the rendition of professional legal services to the clien t or those reasonably intended to be disclosed to third persons other than those to whom disclosure is made in In the context of the attorney - client privilege, a communication is confidential if it is “not 2

for the privilege to compromise the judicial function of ensuring the just example, we do so strictly and in recognition that the legislature did not intend search for the truth. Id. When construing the physician - patient privilege, for administration of justice requires that every reasonable effort be made to (Medical Records of Payne), 150 N.H. 436, 440 (2004). The proper consequence to society in some circumstances. In re Grand Jury Subpoena pertinent to criminal investigation and prosecution may be of significant [¶31] However, we have recognized that c onfidential information

N.H. (State v. MacDonald), 162 N.H. 64, 67 (2011). embarrassing and of little real consequence to society. Cf. Petition of State of psychologist, or psychotherapist learns from his or her patient may be both 503. T hese privileges reflect the fact that much of what a physician, 330 - A:32 (Supp. 2024) (psychotherapist - patient privilege); see also N.H. R. Ev. patient privilege); RSA 329 - B:26 (2017) (psychologist - patient privilege); RSA provided by law between attorney and client.” RSA 329:26 (2017) (physician - 2 “confidential relations and communications . . . on the same basis as those [¶30] In addition to RSA chapter 173 - C, the legislature has placed certain

witnesses against him and his right to a fair trial.” RSA 173 - C:5, III. that information will interfere with the defendant’s right to confront the source”; and (3) “there is a substantial probability that the failure to disclose domestic violence center”; (2) the information is “unava ilable from any other recovery, privacy, or relationship with the counselor or the rape crisis or sought “outweighs its prejudicial effect on the victim’s emotional or physical preponderance of the evidence that: (1) the probative value of the information seeking records privileged under RSA chapter 173 - C must prove by a [¶29] As to the standard for using privileged records at trial, a defendant

relate to the alleged crime being prosecuted.” RSA 173 - C:5, II. information subject to discovery . . . are those statements of the victim which obtain ed through discovery or testimony.” RSA 173 - C:5, I. “T he only substantial likelihood that favorable and admissible inform ation would be specific grounds as to why discovery is requested and showing that there is a discovery or at trial” must file a written motion and affidavit “setting forth (2022), “a defendant [who] seeks information privileged under this chapter in privileged under RSA chapter 173 - C. We agree. Pursuant to RSA 173 - C:5 RSA 173 - C:5 for obtaining and disclosing records should apply to those records [¶28] The complainant and the State argue that the standard set forth in p. 11 11

confidential privilege and gain unfettered access to an uncharged person’s into private information “in a non - adversarial preindictment setting to pierce a “essential need” test was derived from cases involving government al intrusion correctly rejected the “essential need” standard. He reasons that because the [¶35] The defendant maintains that the trial court in the present case

Warrant (Med. Records of C.T.), 160 N.H. at 222. alternative sources. Brown, No. 2020 - CR - 00 483, at 17; see In re Search and (3) whether the defense has made adequate efforts to investigate the alternative evidence is sufficient to overcome a motion for directed verdict; consider: (1) whether the alternative evidence is admissible at trial; (2) whether a defense without access to the individual’s privileged records, the court must reasonable alternative source is available such that the defendant can prepare alternative source for the information sought. Id. In determining whether a However, the defendant must show that there is no reasonably available justification. See In re Search Warrant (Med. Records of C.T.), 160 N.H. at 222. [¶34] The search for relevant evidence may constitute a compelling

no alternat iv e source is available.”). may not be absolute when there is a compelling need for the information and 00483, at 16; see McGranahan, p. 11 119 N.H. at 764 (“The attorney - client pr ivilege that there is a compelling justification for its disclosure. Brown, No. 2020 - CR establish that the targeted information is unavailable from another source and an “essential need” for an individual’s privileged records, the defendant must “essential need” standard. Brown, No. 2020 - CR - 00483, at 16 - 17. To establish privilege, see McGranahan v. Dahar, 119 N.H. 758, 764 (1979), adopted an (Med. Records of C.T.), 160 N.H. 214, 225 (2010), and the attorney - client 812, 814 - 15 (1997), the physician - patient privilege, see In re Search Warrant to piercing the privilege against self - incrimination, see State v. Winn, 141 N.H. [¶33] In Brown, the trial court, after considering the standards applicable

Cnty. - N. Dist. Aug. 22, 2022). We agree with the State. State v. Javon Brown, No. 2020 - CR - 00483, at 15 - 17 (N.H. Super. Ct., Hills in State v. Brown, counters that the “essential need” test should apply. See client privilege” should apply, whereas the State, citing the trial court’s analysis complainant argues that “the same standards as are available for the attorney - [¶32] For records privileged under RSA 329 - B:26 and RSA 330 - A:32, the

329 - B:26; RSA 330 - A:32. Petition of State of N.H. (State v. MacDonald), 162 N.H. at 69; see also RSA finds a waiver of the privilege; or (2) the court orders a piercing of the privilege. means by which disclosure of privileged information may occur: (1) the court confidence. Id. These privileges are not absolute, and there are generally two not to exclude relevant evidence, but simply to facilitate activities which require information. Id. We are cognizant that the legislature designed the privilege resolution of claims by giving one party the right to deprive another of relevant p. 12 12

the individual whose records are sought. Once the trial court has considered or privileged records, notice and an opportunity to object must be provided to court order requiring production and disclosure of an individual’s confidential comprehensive supervisory powers). Henceforth, when a defendant seeks a N.H. 162, 169 - 70 (1886) (noting that Supreme Court has broad and trial courts to ensure the fair administration of justice”); Boody v. Watson, 64 N.H. 334, 337 (2001) (electing “to exercise supervisory jurisdiction over our Warrant (Med. Records of C.T.), 160 N.H. at 226; see also State v. Barnett, 147 as to a uniform and fair process to be applied in future cases. See In re Search exercise our supervisory power to provide guidance to trial courts and parties reasonable and timely notice of all court proceedings”). Accordingly, w e about the criminal justice process and how it progresses” and “[t]he right to 2024) (rights of crime victims include, inter alia, “[t]he right to be informed pronouncement of the rights of crime victims. See RSA 21 - M:8 - k, II (Supp. We agree. This notice requirement is consistent with the legislature’s constitutional right to privacy under Article 2 - b and assert statutory privileges. afford victims and other witnesses the opportunity to protect their in criminal proceedings. Such notice is necessary, the State contends, to individuals whose confidential or privileged records are sought by defendants [¶37] Finally, the State argues that courts must provide notice to

2024 N.H. 47, ¶21. statutes as it deems fit. See State v. Van Uden, 176 N.H. 772, 780 (2024), and RSA 330 - A:32, it is free, within constitutional limits, to amend th ose our analytical standards for piercing the privileges codified in RSA 329 - B:26 Records of C.T.), 160 N.H. at 222. Of course, if the legislature disagrees with investigate alternative sources. Id. at 17; see In re Search Warrant (Med. directed verdict; and (3) whether there has been an adequate effort to trial; (2) whether the alternative evidence is sufficient to overcome a motion for courts must consider: (1) whether the alternative evidence is admissible at at 16. To determine whether there is a reasonably available alternative source, information is unavailable from another source. Brown, No. 2020 - CR - 00483, compelling justification for the disclosure of the records, and that the targeted records sought. To do so, a defendant must prove both that there is a and RSA 330 - A:32, a defendant must establish an essential need for the [¶36] We t herefore hold that, for records privileged under RSA 329 - B:26

ultimately focused on ‘essential need.’”). [physician - patient] privilege, concededly outside the warrant context, has privilege arose. See id. at 226 (“[O]ur established law governing piercing the need” standard did not depend upon the context in which the assertion of the case. We disagree. Our reasoning in cases that have applied an “essential seeks review of confidential or privileged records during the pendency of his C.T.), 160 N.H. at 222, the test is inapposite here, where a criminal defendant confidential information,” see, e.g., In re Search Warrant (Med. Records of p. 13 13

M AC DONALD, C.J., and BASSETT and COUNTWAY, JJ., concurred.

quash and remand for further proceedings consistent with this opinion. motion. Accordingly, we vacate the order denying the complainant’s motion to provided to the individual whose records are the subj ect of a defendant’s A:32. We also conclude that notice and an opportunity to object must be defendant seeks records privileged pursuant to RSA 329 - B:26 and RSA 330 under RSA chapter 173 - C, and the essential need standard applies when a outlined in RSA 173 - C:5 applies when a defendant seeks records privileged records held by private organizations. We further conclude that the procedure in Cressey, and the Gagne standard does not apply to confidential or privileged [¶38] In sum, we conclude that Part I, Article 2 - b abrogates our holding

are sought, the trial court may then rule on the defendant’s motion. the parties’ arguments and any objection made by the individual whose records