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State v. Porter7/29/1999
ndant could cross-examine the victim about the alleged prior rape accusation, but could not introduce evidence of specific instances of conduct for impeachment purposes.
The defendant contends that the trial court erred in failing to admit extrinsic evidence of the victim's character under Rule 404(a)(2). Even assuming that Rule 404(a)(2) applies to evidence of a victim's credibility, but see N.H. R. Ev. 608, we agree that the defendant failed to demonstrate a nexus between the victim's alleged traits of mental instability and alcoholism and her ability to testify truthfully concerning the charges. Because the evidence was thus not shown to be "pertinent," it was properly excluded from evidence by the trial court. See N.H. R. Ev. 404(a)(2).
With respect to the victim's alleged prior accusation of sexual assault against a former boyfriend, assuming such evidence was pertinent, we note that proof of specific instances of a victim's conduct is admissible under Rule 404(a)(2) only when the victim's character or trait of character is an essential element of a charge, claim, or defense. See N.H. R. Ev. 405(b); State v. Newell, 141 N.H. 199, 201-02, 679 A.2d 1142, 1144-45 (1996); State v. Graf, 143 N.H. , , 726 A.2d 1270, 1275 (1999). The victim's character was not an essential element of a substantive offense or defense in this case, and therefore proof of specific instances of the victim's character was not admissible. See N.H. R. Ev. 405(b).
The defendant next argues that the trial court erred in refusing to conduct an in camera review of the victim's substance abuse evaluation to determine if it contained material helpful to his defense. From the evaluation, the defendant sought to obtain evidence to substantiate his assertion that the victim's "claims were the work product of a diseased mind, further weakened by chronic alcohol abuse." On appeal, the defendant also argues that the evaluation showed that the victim had admitted accusing a former boyfriend of sexual assault.
A defendant is entitled to an in camera review of confidential or privileged records if the defendant establishes a reasonable probability that the records contain information relevant and material to his defense. State v. Gagne, 136 N.H. 101, 105, 612 A.2d 899, 901 (1992). "The defendant must meaningfully articulate how the information sought is relevant and material to his defense." State v. Graham, 142 N.H. 357, 363, 702 A.2d 322, 325 (1997). A defendant "must present a plausible theory of relevance and materiality sufficient to justify review." Id. The defendant, however, need not prove that the theory is true. Id. at 363, 702 A.2d at 326. "At a minimum, a defendant must present some specific concern, based on more than bare conjecture, that, in reasonable probability, will be explained by the information sought." Id. (quotation omitted).
Prior to trial, the defendant argued in several motions that the evaluation might contain (1) information indicating that the victim was a mentally unstable alcoholic, and (2) a recommendation that she obtain substance abuse and psychological counseling. His assertions were based on his alleged personal observation of the evaluation. The only specific theory of materiality articulated by the defendant, however, was that the victim's intoxication on the night of the sexual assault was contrary to any recommendations in the evaluation for her recovery, and that such conduct reflected poorly on her credibility. The trial court refused to conduct an in camera review because the defendant failed to demonstrate a reasonable probability that the records sought contained evidence relevant and material to his defense. Since the victim's alleged emotional instab
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