New Limits on Defense Access to Private Counseling Records in Criminal Cases

Post Summary: A new ruling from the New Hampshire Supreme Court, State v. Zarella, 2025 N.H. 20, significantly changes how private mental health and counseling records can be accessed during criminal cases. This post explains what police officers and prosecutors need to understand about these changes.

What Happened?

In State v. Zarella, the NH Supreme Court ruled that defendants can no longer use the same legal standard (known as the Gagne standard) to access private counseling or mental health records that are not in the State's custody. The Court said that these private records are protected under the New Hampshire Constitution's privacy amendment (Part I, Article 2-b), which guarantees every individual's right to live free from government intrusion into personal information.

What Changed?

Previously, under a 1993 case (State v. Cressey), defendants could ask courts to review private therapy or medical records by simply showing a "reasonable probability" that the records were relevant. This was known as the Gagne standard.

Now, in Zarella, the Court has:

• Overturned (abrogated) Cressey, saying the Gagne standard no longer applies to records held by private therapists, doctors, or counselors.
• Reinforced two new standards:
  • RSA 173-C:5 standard for records from rape crisis centers and domestic violence counselors.
  • "Essential need" standard for all other mental health or medical records.

What This Means for Law Enforcement:

• Do not expect, require, or promise access to a victim’s private counseling records in any criminal case.
• Police reports and referrals should be based on information and evidence which is already lawfully within the State’s possession.
• This decision helps protect victim trust and encourages reporting, especially in sensitive cases involving sexual assault and domestic violence.

What This Means for Prosecutors:

• The State (police officers or prosecutors) is not obligated and cannot be ordered to obtain private therapy or medical records for the defense.
• Brady and Laurie obligations apply only to evidence already in the State's possession.
• If a defendant wants private records, the Court must:
  • Ensure the victim or record holder is notified, and allow time for objections to be filed.
  • Hold a hearing to decide whether the legal standard have been met by the defense.
  • Order records only if necessary under RSA 173-C:5 or the "essential need" test.

Standard Breakdown:

Bottom Line: If the records aren't in the State's hands, the State has no obligation to get them. The burden is now squarely on the defense to meet stricter standards, and courts—not prosecutors or police—are the only ones who can order production after due process.

For more information, refer to State V. Gene Zarella.