THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2022-0178, State of New Hampshire v. Joseph 

Gorman, the court on October 24, 2023, issued the following 

order:

The court has reviewed the written arguments and the record submitted 

on appeal and has determined to resolve the case by way of this order. See

Sup. Ct. R. 20(2). After a jury trial in Superior Court (Nicolosi, J.), the 

defendant, Joseph Gorman, was convicted on three counts of aggravated 

felonious sexual assault. See RSA 632-A:2, I(b) (2016). On appeal, the 

defendant argues that the trial court erred when it denied his motion for in

camera review of the mental health counseling records of the victim. We 

remand for a review of the records in camera.

We need state only those facts relevant to the narrow issue raised by the 

defendant on appeal. See State v. King, 162 N.H. 629, 630 (2011). The 

defendant was indicted by a grand jury on three counts of aggravated felonious 

sexual assault, all of which were alleged to have occurred on or about July 22, 

2020, on the theory that the victim was physically helpless to resist due to 

intoxication. Prior to trial, the defendant filed a motion for in camera review of 

the victim’s confidential counseling records. 

The defendant’s motion stated that on August 17, 2020, during a 

recorded interview, the victim disclosed to a detective that she had confronted 

the defendant about the alleged assault and recorded their conversation. The 

detective reviewed the recording, in which the victim told the defendant that if 

he turned himself in, “it would help her not to having to go through these 

things, and not having to deal with it in therapy because she already has 

enough PTSD to work through.” The defendant’s motion also stated that 

roughly a year later, on August 9, 2021, a New Hampshire Public Defender 

investigator reached out to the victim to discuss the case and spoke with her

sister, who informed her that the victim had been hospitalized. It is unclear 

whether the hospitalization was related to the victim’s mental or physical 

health. 

The defendant argued in his motion that the trial court should “order the 

State to produce for in camera review” by the court the records from the 

counseling practice the victim attends because there is a reasonable probability 

that the records would “contain information that is relevant and helpful to the 

defense.” See State v. Gagne, 136 N.H. 101, 105 (1992) (stating that to obtain 
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in camera review, a defendant must establish a reasonable probability that 

records contain information that is material and relevant to his defense). The 

defendant asserted in the motion that his defense at trial would be that the 

allegations against him are not true, and that the jury would look to the 

defense to provide all rational reasons and information regarding why the jury 

should not find the victim credible. The trial court denied the motion stating, 

“Simply because an alleged victim is in counseling and may have discussed the 

allegations with a counselor does not give[] rise to a probability that the 

information may be helpful to the defense to meet the [Gagne] standard.”

Each of the indictments in this case alleged that on or about July 22, 

2020, the defendant knowingly engaged in the sexual penetration of the victim

when she was physically helpless to resist. The primary issue contested at the 

trial, held over the course of three days in March 2022, was whether the victim

and the defendant engaged in consensual sex on or about July 22, 2020. The 

defendant was convicted, and this appeal followed. 

The defendant argues on appeal that his due process rights under both 

the State and Federal Constitutions were violated when the trial court applied a

“demanding” standard and denied his motion. We first address the defendant’s 

claim under the State Constitution. State v. Ball, 134 N.H. 226, 231-33 (1983).

Because the defendant prevails under the State Constitution, we need not 

analyze his argument under the Federal Constitution. See State v. Hoag, 145 

N.H. 47, 48 (2000).

As the defendant accurately states in his brief, the trial court cannot, 

consistent with the due process clauses of the State and Federal Constitutions, 

simply bar access to a victim’s confidential counseling records under all 

circumstances. N.H. CONST. pt. I, art. 15; U.S. CONST. amend. V, XIV. “[T]o 

determine whether the psychotherapist-patient privilege must cede to due 

process considerations such that the privileged records must be disclosed to a 

criminal defendant, the trial court must balance the confidentiality of such 

records against the defendant’s right to obtain evidence helpful to his defense.” 

State v. Girard, 173 N.H. 619, 627 (2020). Our case law establishes a 

procedure designed to balance the right to privacy in one’s counseling records 

against a defendant’s due process rights. As we noted in Girard, a defendant’s 

request to obtain privileged records raises two distinct issues. Id. The first is 

what standard must be met to obtain in camera review of the privileged 

material. Id. The second is what standard must be met for the defendant to 

obtain access to the records. Id. At issue in this appeal is whether the 

defendant met the standard that requires a trial judge to conduct in camera

review of the documents in order to determine whether the confidential 

material must be disclosed to the defense.

In Gagne, 136 N.H. at 105, we held that to obtain in camera review, “the 

defendant must establish a reasonable probability that the records contain 
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information that is material and relevant to his defense.” This threshold 

showing is not high, because if the bar were set too high, “we risk depriving the 

defendant of his constitutional right to due process.” State v. Graham, 142 

N.H. 357, 363 (1997). “In contrast, the harm done by disclosing the 

information to the trial court in the first instance is minimal.” Id. Accordingly, 

the threshold showing requires only that a defendant meaningfully articulate 

how the information sought is relevant and material to his defense. To do so, 

he must present a plausible theory of relevance and materiality sufficient to 

justify review of the protected documents, but he is not required to prove that 

his theory is true. 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. King, 162 N.H. at 632 (quotation 

and citation omitted).

We conclude that the defendant has met the Gagne standard as a matter 

of law with respect to the victim’s counseling records. This conclusion is 

supported by our decisions in State v. Hoag, 145 N.H. 47 (2000), and State v. 

Eaton, 162 N.H. 190 (2011). The defendants in both Hoag and Eaton sought 

access to counseling records, to the extent that any existed. Hoag, 145 N.H. at 

49-50; Eaton, 162 N.H. at 194-95. In both cases, we concluded that the 

assertions made by the defendants were sufficient to trigger in camera review

because, given the facts in each case, the defendants reasonably believed that 

the victims were in counseling, and that this counseling concerned each 

defendant’s alleged conduct. Hoag, 145 N.H. at 49-50; Eaton, 162 N.H. at 194-

95. Similarly, the assertions set forth in the defendant’s motion in this case 

establish that the defendant reasonably believed that the victim was in 

counseling, and that this counseling concerned his alleged conduct.

According to the defendant’s motion, the victim told the defendant in a 

recorded conversation on August 17, 2020, within weeks of the alleged July 22, 

2020 assault, that if he turned himself in, “it would help her not to having to go 

through these things, and not having to deal with it in therapy because she 

already has enough PTSD to work through.” Also, according to the motion, 

“[t]here is information that [the victim] was engaged in counseling prior to this 

alleged incident.” The victim’s statement to the defendant strongly implied that 

she was in counseling and that she felt a need to discuss the allegations 

against the defendant as a part of her therapy. Accordingly, we conclude that 

the trial court erred when it refused to conduct an in camera review of the 

victim’s counseling records. 

The State cites a number of our decisions to support the statement that

“simply asserting a reasonable basis for believing that a sexual assault victim 

is in counseling and may have discussed pending allegations of sexual assault 

in therapy does not, without more, meet the Gagne standard to trigger in

camera review.” (Emphasis added.) See State v. Sargeant, 148 N.H. 571, 574 

(2002); State v. Ellsworth, 142 N.H. 710, 713-15 (1998); State v. Locke, 139 
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N.H. 741, 744 (1995); State v. Taylor, 139 N.H. 96, 98 (1994). While each of 

these cases supports the statement, each is factually distinguishable from this 

case. The defendant’s motion established more than that the victim may have 

spoken about the assault. The motion quoted a statement made by the victim

herself within weeks of the alleged assault urging the defendant to “turn[]

himself in” and strongly suggesting that she was “in therapy” and dealing with 

PTSD. The timing, in conjunction with these two statements, suggests not

merely that the victim “may” have been discussing her accusations against the 

defendant in therapy, but that there was a reasonable probability that she was. 

On remand, the trial court should direct the appropriate treatment 

providers to provide the victim’s counseling records for in camera review. The 

trial court should then review the confidential records in accordance with the 

standard set forth in Girard. If the trial court concludes that the records do 

contain evidence that should have been disclosed to the defense, the court may 

release that evidence to the parties with any necessary protective order, taking 

into account the victim’s rights under Part I, Article 2-b of the New Hampshire 

Constitution and RSA 21-M:8-K (Supp. 2022), if any. In addition, following the 

review of the counseling records, the trial court should consider whether there 

is a reasonable probability that the victim’s hospitalization records contain 

information that is material and relevant to the defense. If the court concludes 

that there is such a reasonable probability, it should direct the treatment 

providers at the hospital to provide the victim’s records for in camera review. If 

the trial court concludes that the records do contain evidence that should have 

been disclosed to the defense, the court may release that evidence to the 

parties with any necessary protective order, taking into account the victim’s 

rights under Part I, Article 2-b of the New Hampshire Constitution and RSA 21-

M:8-K, if any. If the court releases any evidence to the parties, the court 

should then provide the parties with an opportunity to make arguments as to 

whether a new trial is warranted. Cf. Graham, 142 N.H. at 364 (if records 

contain evidence that should have been disclosed, the trial court “should order 

a new trial unless it finds that the error of not admitting the evidence in the 

first trial was harmless beyond a reasonable doubt”).

Remanded.

MACDONALD, C.J., and HICKS, BASSETT, HANTZ MARCONI, and 

DONOVAN, JJ., concurred.

Timothy A. Gudas,

 Clerk