Reforms Protect Defendants from Inadmissible Evidence in Court

12/19/2006. Court Reforms the Opening-the-Door Doctrine.

In State v. Donald Morrill, N.H. (2006), a case briefed and argued by Ted Lothstein, the Court overruled long-standing precedent and eliminated its "opening-the-door" doctrine.

In its place, the Court has established two much more specific and limited doctrines. And, Donald Morrill gains his second appellate victory.

In 2004, his conviction for AFSA was reversed because the trial court erred in ruling that defense evidence "opened the door" to otherwise-inadmissible testimony by a DCYF social worker that she believed the child victim's story.

Did that make the prosecution gun-shy about the opening-the-door doctrine on retrial? Not at all. Once again, when the defense tried to present a defense on retrial, the prosecutor persuaded the trial court to allow in otherwise-inadmissible evidence, this time hearsay from the victim's deceased father, on an opening-the-door theory. This time, the Court signaled that it has had enough.

The opening-the-door doctrine no longer exists. Instead, litigants will have to rely on two more specific, and more narrow doctrines: Curative admissibility, and specific contradiction.

Curative admissibility applies when one party puts in otherwise inadmissible evidence, the evidence is prejudicial, and the opposing party would like to rebut it with countervailing inadmissible evidence. The doctrine applies "only when inadmissible evidence has been allowed, when that evidence was prejudicial, and when the proffered testimony would counter that prejudice."

"Curative admissibility" is the "fighting fire with fire" doctrine. It only applies when you sneak in some inadmissible evidence, such as rank hearsay, impermissible opinion testimony, etc.

Specific contradiction, on the other hand, applies when one party puts in admissible, relevant evidence, which creates a misleading impression. The classic example: You win pretrial ruling suppressing a bag of weed found in the client's pocket at the time of arrest, because police violated the client's constitutional rights. The client still faces cocaine possession charge. The client testifies that "that wasn't my cocaine... I don't do drugs." Bingo - the marijuana evidence is back in.

The Court instructed litigants, in the future, to stop citing the "opening the door" doctrine in a conclusory fashion, and instead

"make clear which of the above doctrines is being invoked. This is so because the two doctrines are invoked by different types of evidence - 'curative admissibility' is triggered by the erroneous prior admission of inadmissible evidence, while 'specific contradiction' is triggered by the introduction of misleading admissible evidence. Identifying the particular doctrine will permit more focused discussions between litigants and judges and will prevent further erosion of the unique requirements of each doctrine."

The Morrill decision serves to remind prosecutors that they have to live by the rules of evidence, too, no matter how much it stings.

Read State v. Donald Morrill