State of New Hampshire v. Matthew Raymond

1. Whether the court erred by admitting the expert testimony of Dr. Scott Hampton.

Issue preserved by defense Motion in Limine and the court’s ruling, then by renewed objection during trial and court’s ruling. A 3-11, M 54-58, T 473.1*.

Matthew Raymond was indicted by a Hillsborough County Superior Court – Northern District grand jury for five counts of second-degree assault alleging he strangled C.L. The State also filed nine misdemeanor informations charging Raymond with seven counts of simple assault against C.L., one count of false imprisonment and one count of misdemeanor criminal mischief. T 4-8. These various charges alleged crimes on May 4, 7, 19, June 8 and June 10, 2022. The charges alleged: on May 4 Raymond strangled C.L.; on May 7 he strangled and committed a simple assault; on May 19 he strangled and committed a simple assault against her; on May 24 he committed a simple assault and criminal mischief; on June 8 he strangled her twice and committed three simple assaults; and on June 10 he committed a simple assault.

The jury found Raymond not guilty of the May 7 second- degree assault and simple assault and guilty of all other charges. T 636-42. The trial court sentenced him to a total of five to thirteen years stand committed with a suspended sentence of three and a half to seven years on the remaining felony and twelve months suspended on each of the misdemeanor charges. S 36-62

C.L. and Matthew Raymond met in 2018, through online dating. T 41. They were living together in 2022. Before May 1, 2022, Raymond lived in Concord and C.L. spent each night there. After May 1 Raymond moved to Manchester. C.L. rented her own apartment, but spent nights at Raymond’s apartment. T 42.

C.L. claimed Raymond assaulted her on five separate days. On May 4, as she was getting ready for work, C.L. claimed Raymond said C.L. was making too much noise, then got on top of her and choked her. T 50. C.L. testified Raymond put both his hands on the sides of C.L.’s neck and squeezed so C.L. could not talk or breathe. T 53. Raymond then stopped, got up and told C.L. he would take her to work. T 54. C.L. saw finger marks on her neck and little dots around her eyes. She put a scarf around her neck. T 55-6. After C.L. went to the police in August 2022, she gave the Manchester Police a selection of text messages between her and Raymond. She did not give the police all the texts during the period of May 4 to August 25, but rather printed out some messages on the days she said she was assaulted and immediately after those days. T 186-90.

On May 4, just before noon, C.L. texted Raymond “you choked me, and I’m not allowed to take time to process.” Raymond texted back “We aren’t good for each other, unfortunately. I love you but it’s definitely not working.” T 61. After work C.L. returned to Raymond’s apartment. She testified she went back because she dismissed what happened, because she still loved Raymond and valued the good times she had with him. T 63-4. Many texts between C.L. and Raymond were admitted as trial exhibits. They all follow a general pattern of C.L. writing that Raymond assaulted her but Raymond never admitting to the acts C.L. writes about. Instead, Raymond would write that C.L. was a bad partner and they needed to end the relationship. On May 7 C.L. claimed Raymond got a call from a woman who wanted to lend Raymond money. C.L. told Raymond that he had obviously slept with this girl and lied to her about it. Raymond then yelled, put his hands on C.L.’s neck and choked her. T 67. After Raymond stopped C.L. saw new red marks on her neck and old yellow marks from the prior strangling. T 70.

C.L. claimed on May 19 Raymond tried to call a friend of his several times, unsuccessfully, then finally reached the friend. C.L. told Raymond the friend was not calling him back because he does not want to talk to Raymond. T 83. After Raymond hung up, he got angry, yelled at C.L., pushed her against the refrigerator, put his hands on her neck and choked her and grabbed her arms. T 84. C.L. said afterwards she had bruises on her arms and red marks on her neck. C.L. said she did not go to the police because she cared about Raymond and did not want him to get in trouble. T 87. She said she did not go to the doctor because Raymond was going through troubling times. T 88.

The texts between C.L. and Raymond were read to the jury. C.L. wrote Raymond was a “woman beater”, abusive, evil, a terrible bully and impossible to be around. She also wrote Raymond broke her hairdryer.

2 Raymond wrote C.L. was a big-mouth troublemaker, not a good partner or girlfriend, and their relationship was over. T 90-91. Both texted that they would break up, that C.L. would take her belongings and move out. T 92-94. After May 19 C.L. stayed with Raymond. She testified that they had arguments like that all the time, and she really loved him. T 95-96. C.L. testified that on some day before May 19 Raymond stomped on her backpack, breaking everything in it including a hairdryer. T 97-99. On May 21 C.L. texted Raymond that he broke her hairdryer. C.L. later texted Raymond should say sorry for this. Raymond texted “I am sorry.” T 102. C.L. was asked when the next assault happened. She said May 24, then said she was guessing at dates. The prosecutor said he would move on and asked her about June 8. T 105. C.L. testified that on June 8, in the morning, she and Raymond argued because he had eaten the lunch she had packed for work the night before. T 107. She claimed Raymond pushed her onto the bed and strangled her. T 108. They again texted on June 8. C.L. wrote she was leaving Raymond, he was disrespectful and he was physically abusive. Raymond texted C.L. was screaming for no reason, playing mind games and denied being physically abusive. T 111-114.

C.L. said Raymond picked her up after work on June 8. T 117. At the apartment C.L. packed up her computer, which she said made Raymond upset. He pushed her to the ground, straddled her and choked her. T 118. After Raymond stopped choking her, he kicked her in the ribs and stomped on her stomach. T 122-23. C.L. said Raymond told her the police were coming. Raymond dragged C.L. to the kitchen and forced her to stand up. C.L. looked in the mirror and saw her face was red and eyes swollen. T 126. C.L. tried to leave the apartment, but Raymond locked the door. C.L. said she wanted to leave. Raymond said she is not going anywhere. T 127. C.L. left 45 minutes later. T 129.

C.L. went to her apartment. She stayed in bed for two days. She said she did not call the police because she did not want Raymond to get in trouble. She did not go to the doctor. T 129.

C.L. and Raymond texted between June 8 and June 10. On June 10 Raymond went to C.L.’s looking for his wallet. C.L. went out to find Raymond looking through her car for the wallet. T 134-35. C.L. testified Raymond spit in her face, and she spit back in his face. T 135.

After June 10 C.L. and Raymond text each other and call each other. T 146. On August 22 C.L. texted Raymond “I cry every day because I miss you that much. It’s very painful.” Raymond replied that if he didn’t miss C.L. he wouldn’t respond to her messages. C.L. wrote “I understand. But it still hurts that you never want to try again in the future.” T 173 C.L. texted she was sorry she was so mean and as a result lost Raymond. T 174.

On August 24 C.L. went to Raymond’s apartment.

Raymond was there with his son and his new girlfriend Rachel. T 164. Raymond had told C.L. about Rachel, but said they were only friends. T 164. C.L. had thought she and Raymond would get back together. T 170. After the encounter with Raymond C.L. used racial slurs in a text about Rachel. T 168. C.L. denied being jealous or angry about Raymond now dating Rachel. T 168. C.L. went to the Manchester Police the next day. T 151.

On August 25 C.L. told the Manchester police Raymond strangled her on the night of June 8. She did not tell the police she was strangled on the morning of June 8. She also mentioned Raymond strangled her on May 4. T 195. C.L. first mentioned the strangulation on the morning of June 8 to a Hillsborough County Attorney investigator on October 28, 2022. T 211. She first mentioned the strangulations on May 7, May 19 and June 10 to the same County Attorney investigator in a meeting on April 16, 2023. T 212. The defense argued that there were no pictures of any of C.L.’s injuries. The defense further argued that C.L. did not go to the police after any of these assaults but rather went the day after she discovered Raymond had a new girlfriend. C.L. had strong feelings for Raymond on August 24 and wanted to get back together with him, so the defense argued she went to the police to punish Raymond. The State tried to rebut these arguments by calling several witnesses.

The State called Stephanie Gillespie, a friend of C.L. and Raymond, to bolster C.L.’s testimony. Gillespie saw C.L. at Hampton Beach in the summer of 2022. This meeting was sometime between late June and August. T 331. She saw C.L. had a busted lip, marks on her neck, bruises on her torso and legs. T 308-10. C.L. said the busted lip happened weeks ago. T 308. C.L. told Gillespie that Raymond had strangled her. T 315.

Gillespie also testified that she and her boyfriend Troy were on a FaceTime call with Raymond and C.L.. During this call Gillespie heard C.L. make a comment about Troy not answering the phone when Raymond called, which Raymond took as an insult. T 311. The State argued this matched C.L.’s description of the beginning of the May 19 strangulation. T 582.

The State called two experts. First it called Robert Frechette, a retired police officer who was certified as an expert in strangulation and domestic violence investigations. Officer Frechette said a person being strangled may feel light- headed or dizzy, with changes in hearing and vision, because oxygen is not getting to the brain during a strangulation. T 414. Petechiae, or spots on the skin, are a product of strangulation. They can appear as a rash or blotchy skin. T 419. He testified it is uncommon for bruises to appear after strangulation. T 418. Most strangulation cases do not involve visible bruises to the neck. T 441.

Finally, the State called Dr. Scott Hampton.

3 Hampton intentionally did not learn anything about Raymond’s case. T 489. Hampton said domestic violence abusers escalate their violence over time. T 494. The abuser will feel threatened the victim will leave for a better option or gain independence, so he will escalate violence. T 499. He said an abuser would emotionally and financially abuse a victim. T 501. He said an abuser would get a victim addicted to drugs. T 502. He said an abuser would try to control the victim’s access to doctors or medication. T 503.

Hampton testified that victims will stay with an abuser because they don’t want to lose friends, or money, or because they love the abuser. T 506. Hampton testified that if a victim calls the police, the abuser could tell her that if he gets arrested, he will get out, then he will kill her dog, so she tells the police she overreacted. T 507. He testified that when a victim leaves the abuser may escalate his threats by going after the victim’s children. T 510.

Hampton testified a victim who leaves an abuser may delay reporting because the victim did something to bring on the abuse, or because of poor self-esteem, or fear of the unknown, or because of fear they will not be believed. T 511- 13. Hampton said a victim may disclose more incidents after first disclosing one incident to the police because they might be in a roller coaster of fear, then calm, then fear. T 514. Hampton said a victim might, after leaving the abuser, want to get back together with the abuser because the abuser might try to lure the victim back into a relationship. T 516.

1. The trial court erred in allowing Scott Hampton to testify as an expert witness in intimate partner abuse because he did not meet the expert witness standards of Daubert and RSA 516:29-a. Hampton’s expert opinions were not based on specific research or scientific articles. Rather he based his opinions on interviews of both intimate partner abuse offenders and victims that he has done over the years. Hampton has never published scientific articles about the subject of his testimony in Raymond’s trial.

The trial court held that testimony such as Hampton’s, in what the Court called the “soft sciences”, that the standards of RSA 516:29-a are more flexible in the “soft sciences” than in the “hard sciences”, and applied a test that did not use the factors in RSA 516:29-a. This was error. This Court’s prior rulings addressing the admissibility of psychiatric and psychological expert testimony make clear there is no distinction between the “soft sciences” and the “hard sciences.”

Hampton’s testimony was not based on sufficient facts or data. He did not use reliable principles or methods, nor did he apply such principles or methods in this case. Hampton’s opinions cannot be tested. Hampton testified that his opinions have no known rate of error. He attempted no quantification, testifying that quantification is hard in this area. Hampton failed every factor listed in RSA 516:29-a. He should not have been permitted to testify as an expert, and in allowing him to do so the trial court erred.

The trial court erred in admitting the expert witness testimony of Dr. Scott Hampton. His methods did not satisfy the requirements of Rule of Evidence 702, RSA 516:29-a and the rules on standards for expert witness testimony set forth in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), which has been adopted by this Court. Baker Valley Lumber v. Ingersoll-Rand, 148 N.H.609 (2002). This Court will reverse a trial Court’s determination of expert qualification if the Court finds an unsustainable exercise of discretion. Id. at 612.

A trial court functions as a gatekeeper, “ensuring a methodology's reliability before permitting the fact-finder to determine the weight and credibility to be afforded an expert's testimony.” Id. at 616. The court’s focus must be solely on the principles and methodology, not on the conclusions that they generate.” State v. Dahood, 148 N.H 723, 727 (2002). This brief will first outline the arguments of the defense and the state to the trial court, Hampton’s testimony at the Motion hearing and the trial court’s order.

Before trial the State indicated it would call Dr. Scott Hampton as an expert witness. The defense moved to exclude Hampton’s testimony. The defense argued Hampton’s testimony must be excluded in its entirety because it is not the product of reliable principles or methods. A 9. The defense cited RSA 516:29-a, which states:

II. (a) In evaluating the basis for proffered expert testimony, the court shall consider, if appropriate to the circumstances, whether the expert's opinions were supported by theories or techniques that:

(2) Have been subjected to peer review and publication; (3) Have a known or potential rate of error; and (4) Are generally accepted in the appropriate scientific literature.

(b) In making its findings, the court may consider other factors specific to the proffered testimony.

The defense argued that Hampton’s proposed testimony was not based on sufficient facts or data. In both his expert witness testimony summary and at his deposition Hampton cited to no specific research or articles that supported his opinions. A 7. Hampton had published some articles of his own, but the articles that pertained to his proposed expert testimony were self-published, thus not peer-reviewed, and the articles of his that were peer-reviewed did not address his proposed expert testimony. A 7. Hampton also based much of his expert opinion on interviews with his patients. The defense argued that mere opinions with patients and family of patients is not the sort of reliable method required by RSA 516:29-a, and thus Hampton’s testimony must be excluded. A 8. 4 The State objected. The State argued Hampton had “substantial education and experience in intimate partner violence.” Hampton has run a batterer’s intervention program and talked with victims of domestic violence many times. A 16. The State argued that Hampton’s expertise was in a “soft science”, and therefore the trial court should consider “if the field of expertise is legitimate, if the testimony is within that field of expertise, and whether the testimony is relies on principals involved in that field.” A 17. The State conceded that Hampton’s expertise does not have a known or measurable rate of error, but argued that because his expertise was in a “soft science” an error rate was impossible. A 17-18.

The trial court held an evidentiary hearing on the defense’s Motion in Limine on April 23, 2023. Hampton testified at this hearing. Hampton testified he has run a company that offers “interventions services for offenders” since about 2000. M 7. He also runs two programs through the Strafford County House of Corrections: a program for men focused on domestic and sexual violence and a program for women that is a survivor’s support group. M 8.

When asked for the basis of his opinions on domestic violence, Hampton replied that he bases his opinions on what he hears from the victims and perpetrators of domestic violence he speaks to in his work. M 24. The prosecutor asked how Hampton documents what he is told; Hampton replied that he keeps a log of comments and jots down notes. M 25. The prosecutor asked Hampton if there was a way to calculate error, or a margin of error. M 28. Hampton said he is interested in the range of behavior, not the percentages of behavior. The prosecutor further questioned Hampton about a potential error rate, and the following exchange resulted: Q: So your work doesn’t quantify human behavior? A: Right.

Q: And would it be fair to state that putting a statistic to, or trying to quantify human behavior is difficult.

A: Yes, at best.

Q: It is hard to predict what humans are going to do? A: Correct?

Q: A lot of different factors go into that?

A: Correct.

M 29-30.

On cross the defense asked Hampton to name the last three journal articles he read. Hampton could not remember them. M 39. After Hampton testified the defense argued to exclude his testimony because: 1) his testimony was not necessary to educate a jury in 2023; 2) his testimony did not satisfy the requirements of RSA 516:29-a; and 3) his testimony was irrelevant. M 54.

The trial court ordered that Hampton would be allowed to testify as an expert with limitations. The court first noted that this Court had approved Hampton testifying as an expert in State v. Dow, 168 N.H. 492 (2016). The court found that the topics Hampton would testify to in Raymond’s trial were in line with the expert testimony this court approved of in Dow. AD 6.

The court then rejected the defense’s argument that Hampton’s testimony did not meet the standards of RSA 516:29-a. The court agreed with the State’s argument that 516:29-a’s standards are more flexible when the expert is in “soft sciences”, such as psychology, instead of “hard sciences”, such as engineering. AD 7. The court then held: Some courts have spoken directly about the need for flexibility in applying the Daubert factors, as codified in RSA 516:29-a, in “soft science” areas because expert testimony in those areas is highly dependent on “information derived from such sources as personal observations, clinical assessments, and statistical data.” One court has suggested that proposed “soft science” expert testimony should be evaluated by asking: whether the field of expertise is a legitimate one; whether the subject matter of the expert’s testimony is within the scope of that field; and whether the expert’s testimony properly relies on or utilizes the principles involved in that field. As demonstrated by his CV, hearing Exhibit 1, and his testimony at the hearing on the Motion in Limine, the answer to those three questions concerning Dr. Hampton’s proposed testimony concerning intimate partner violence is yes.

AD 7-8.

The trial court erred in admitting Hampton’s testimony. This brief will first argue that this Court’s holding in State v. Dow, where the Court affirmed admitting Hampton’s expert testimony of intimate partner violence, does not apply to this case because the defense here makes a completely different legal argument than that made in Dow. The trial court’s reliance on Dow was thus misplaced. Next this brief will argue the trial court used an improper test from Texas, not the New Hampshire test the trial court was required to apply, and that further the Texas test the trial court used directly contradicted this Court’s prior rulings about standards for expert testimony by psychiatrists and psychologists. Finally, this brief will examine Hampton’s expert testimony under the standards of RSA 516:29-a, and argue Hampton’s testimony falls woefully short of the standard he must meet. The trial court misunderstood this Court’s holding in Dow. The State in Dow sought to introduce Hampton’s testimony about the nature of domestic violence. The defense argued “the trial court erred by allowing Hampton to testify about domestic violence because such evidence is only admissible when a victim recants or otherwise minimizes the subject abuse during testimony.” Dow, 168 NH. at 502. The Dow Court rejected this argument. Dow challenged whether Hampton’s expert testimony was admissible if reliable. Dow never challenged the reliability of Hampton’s methods. So the trial court’s reliance on Dow was misplaced. Dow said nothing about whether Hampton’s methods pass muster under RSA 516:29-a. Indeed RSA 516:29-a, Daubert and Baker Valley are never mentioned in the Dow opinion, nor did the opinion discuss the methods behind Hampton’s expert opinions.

“Scientific conclusions are subject to perpetual revision, ” and our role is not to rubber-stamp a scientific methodology merely because it enjoys widespread acceptance at the present time. For this reason, courts must look to the methodology employed by experts in each specific case to determine whether an expert opinion is “the product of reliable principles and methods, ” RSA 516:29-a, I(b), which, as the Daubert Court emphasized, is a “flexible” inquiry. Moscicki v. Leno, 173 N.H. 121, 125 (2020).

The trial court erred in relying on the test in Nenno v. State of Texas, 570 S.W.2d 549, 561 (Tx Ct. Crim. App. 1998). The court’s first error was misunderstanding Texas law. The trial court found that Nenno applied a three-part test to “soft science” expert testimony, specifically: 1) whether the field is a legitimate one; 2) whether the expert testimony is within the scope of the field; and 3) whether the expert’s testimony properly relies on or utilizes the principles in the field. AD 7. In 1998 this three-factor test was the Texas standard governing the admission of all expert testimony in criminal cases, a test first outlined in Kelly v. State of Texas, 824 S.W.2d 568, 573 (Tx. Crim. App. 1992). The Nenno court explicitly stated it was applying the Kelly test. Nenno, 570 S.W.2d at 559. The Kelly test is not a test that only applies to “soft” sciences, but rather all expert testimony in Texas. Kelly itself addressed the admissibility of DNA evidence, the “hardest” of sciences in criminal cases.

In sum, the trial court chose to apply the general test of expert testimony of Texas, not the New Hampshire statute and New Hampshire caselaw governing expert testimony, on the mistaken belief that the Texas standard specifically applied to “soft” science. The trial court’s error is greater because the distinction it makes between the standards governing “hard” science and “soft” science, which would here include psychiatry and psychology, has no basis in New Hampshire law. The two most important criminal law cases in New Hampshire about expert witness testimony of psychiatry and psychology are State v. Cressey, 137 N.H. 402 (1993) and State v. Hungerford, 142 N.H. 110 (1997), both of which refuse to apply the distinction the trial court makes. In Cressey, an aggravated felonious assault case, the State sought to admit expert testimony of a psychologist that the child victims had been sexually abused. This Court held the admission of such expert testimony was error under Rule 702 and the Daubert standard. Cressey, 137 N.H. at 403. The specific testimony at issue was expert testimony by a psychologist who interviewed the two child victims that the symptoms and behaviors exhibited by each child were consistent with being sexually abused. Id. at 404. The Cressey Court identified three concerns that made the expert testimony unreliable.

First, the Court found “the evaluations of the children deal almost exclusively in vague psychological profiles and symptoms, and unquantifiable evaluation results.” Id. at 408. The Court held that there are no symptoms or behaviors that occur in every case of child abuse, nor are there symptoms or behaviors that occur only in cases of child abuse. The Court further found the absence of standardized tests of other quantifiable results further called the doctor’s opinion into question.

Second, the Cressey Court found the doctor necessarily relied “on a vague symptomology and unquantifiable results.” Id at 409. For example, the Court held that the fact that the children drew pictures of men when asked to draw a picture of a person does not begin a logical chain that leads to the conclusion the children were sexually abused. Id. Third, the Court held that much of the information used by the doctor only becomes significant when interpreted by someone with her expertise, which was a particular problem because the doctor testified that her evaluations were “partly an art form.” Id. at 409-10. The Court held this interpretive step necessarily taking place in the doctor’s mind rendered her opinion even more unverifiable. Id.

In Hungerford, 142 N.H. 110 (1997) this Court affirmed a trial court’s exclusion of testimony of recovered memories, that is when a person only develops a memory of an event years after the event. The Court offered eight factors it held trial courts should consider in deciding whether to admit recovered memory testimony: 1) the level of peer review and publication about recovered memories; 2) whether recovered memories are generally accepted in the psychological community; 3) whether the phenomenon has been empirically tested; 4) the potential or known rate of recovered memories that are false; 5) the age of the witness when the events occurred; 6) the length of time between the event and the recovery of the memory; 7) the presence of corroborating evidence of the events; and 8) the circumstances of the memory’s recovery. Id. at 125. The Court then spent pages of the opinion discussing a large number of studies and academic articles on the subject of recovered memories before concluding recovered memories were not generally accepted, that empirical testing was possible, albeit difficult, and that in 1997 it was not possible to conclude the known rate of false recovered memories. Id. at 126-31.

Nowhere in Cressey or Hungerford was there a suggestion that the “soft” sciences of psychiatry or psychology merited a less rigorous analysis than “hard” sciences. On the contrary, both opinions go into great detail about the state of the scientific evidence and hold the scientific evidence to a standard every bit the equal to that applied to DNA analysis. Hampton’s testimony falls woefully short of the standards of RSA 516:29-a. When asked about the basis of his opinion, Hampton said it came from interviewing offenders and victims he worked with. The trial court’s focus is supposed to be on the principles and methodology, Dahood, 148 N.H. at 727. Hampton testified to no methodology. He testified that he talked to people and kept a log of what they said.

RSA 516:29-a, I(a) requires the trial court find an expert’s testimony is based on sufficient facts or data. Hampton talking to people, without any attempts to refine the data, account for biases such as the fact that many of the people he is speaking to are there because of a court order in a criminal case, or otherwise quantify what he hears, is not sufficient facts or data to support an expert opinion. RSA 516:29-a, I(b) requires the trial court find expert testimony is the product of reliable principles and methods. Hampton testified to no reliable principles or methods. RSA 516:29-a, I(c) requires the trial court find the expert reliably applied the principles and methods to this case. Hampton had no method or principles to apply. RSA 516:29-a, II lists four factors the court should consider in deciding whether to admit expert testimony. First, the court should consider whether the expert’s opinions can be tested. RSA 516:29-a, II(a) Hampton’s opinions cannot be tested. It is difficult to imagine creating a test, and Hampton certainly never devises such a test. Second, the court should consider whether the expert’s opinions have been subjected to peer review. RSA 516:29-a, II(b). The defense argued that Hampton’s peer-reviewed articles have nothing to do with his testimony in this case. The prosecution never argued otherwise, and the trial court never found otherwise. Third, the court should consider whether the expert’s opinions have a known rate of error. RSA 516:29-a, II(c). Hampton has no knowledge of a rate of error. He further disputes that a rate of error is applicable to his testimony or important in any way. Hampton’s testimony shows complete disregard for measuring an error rate. Finally, the trial court should consider if the expert’s findings are generally accepted in the appropriate scientific community. RSA 516:29-a, II(d). There was no testimony in the trial court that Hampton’s opinions are generally accepted. The trial court found that many other courts have permitted testimony similar to Hampton’s. AD 8. The trial court also found Hampton has training and experience in the area of domestic violence. Id. That is not what this factor requires. Saying Hampton has great expertise and credentials is not the same as saying his opinions are reliable. James Watson, one of the two doctors discovered the DNA double helix, has as illustrious a CV as a doctor can, but that does not make his stated belief that black Americans are less intelligent than white Americans due entirely to genetics reliable or generally accepted5.

The plural of “anecdotes” is not “data.” Scott Hampton does not collect data in a reliable fashion, subject it to testing or do anything like what science requires. The trial court erred in admitting his testimony.

Further, though he explicitly denied any attempts at quantification Hampton did repeatedly discuss probabilities. At the motion in limine hearing Hampton testified “delaying a report is perfectly normal.” M 31. At trial Hampton testified “the only way for abuse to happen is if it – if it’s not immediate, and there’s some gradual component to it.” T 494. He testified that “typically, the abuser has some insecurities.” T 499. He testified that sometimes, victims do not come forward. T 510. Saying something is “perfectly normal”, or “typical”, or something “sometimes” happens, are all statements of frequency. Saying something typically happens may not be identical to saying something happens seventy- five percent of the time, but the meaning is similar. Something that typically happens will happen well over fifty percent of the time. So even though Hampton denied quantifying behavior, saying he was interested in the range of experiences and not the frequency, M 28-30, he was able to use words that conveyed a sense of the frequency of behaviors. The State used Hampton’s testimony to argue in closing the behaviors C.L. described were typical domestic violence behaviors, and thus her story was true.

In its closing the State cited C.L.’s text to Raymond asking him why he did this, and his response that she just didn’t listen, then argued this fit into Hampton’s testimony about the dynamics of power, control and blaming the victim. T 573. The State argued because this fit Hampton’s description it proved Raymond abused C.L. T 573. The State argued that C.L. building her story, adding new allegations with each meeting with an agent of the State, “was not uncommon, ” citing Hampton’s testimony. T 574. The State argued that Hampton’s testimony showed that someone who reports a domestic assault to disclose more and more assaults as time passes. T 574-5. The State argued violence typically gets triggered when the offender begins losing control, again citing Hampton’s testimony. T 577-78. The State argued Hampton testified domestic violence typically happens around a triggering event, such as stress, then argued Raymond was stressed and that caused him to assault C.L. T 579. The State argued that Hampton testified a victim not leaving the abuser, attempting to reconcile with the abuser, delaying reporting and multiple reports were all “common” behaviors of a domestic violence victim. T 591. The State repeatedly cited to Hampton’s testimony in its closing, using his testimony to try to cover the weaknesses in the State’s case.

The trial court erred in admitting Scott Hampton’s testimony. He used no method beyond talking to people. His opinions were based on no reliable principles or method. He offered no opinion that could be tested, subjected to peer review or that has a known or potential rate of error. He offered nothing that meets the statutory requirements of RSA 516:29-a. Rather than follow the requirements of this statute the trial court held that the “soft sciences” have different, lesser standards than the “hard sciences”, a distinction that has no basis in New Hampshire law and is contradicted by this Court’s prior precedent. Having so ruled the Court did not conduct the statutory inquiry RSA 516:29-a requires. The State used Hampton’s improperly admitted testimony to explain away the weaknesses in its case. This Court must reverse.

WHEREFORE, Mattthew Raymond respectfully requests that this Court reverse his convictions.

Undersigned counsel requests 15 minutes of oral argument.

The appealed decision is in writing and is appended to the brief.

This brief complies with the applicable word limitation and contains 6109 words.

I hereby certify that a copy of this brief is being timely provided to the Criminal Bureau of the New Hampshire Attorney General’s office through the electronic filing system’s electronic service.