State of New Hampshire v. Adam Hersom
2023-0352
N.H.Jan 24, 2025Background
- In January 2021, Adam Hersom's then-wife reported he had assaulted her in New Hampshire in 2018 and provided police with a surreptitious recording of a conversation with Hersom, allegedly made in Maine the day after the incident.
- Hersom was indicted on charges of aggravated felonious sexual assault and second degree assault based on this and other evidence.
- Hersom moved to exclude the recording, arguing it was illegally made in New Hampshire in violation of the state’s Wiretapping and Eavesdropping Law, RSA 570-A, raising new doubts about the recording’s date and location after inspecting the file properties.
- The trial court held an evidentiary hearing, with the State relying on hearsay testimony from investigators rather than the complainant herself.
- The court ultimately excluded the recording, finding the State failed to prove the recording was made in Maine or that, if it was made in New Hampshire, the complainant did not act willfully or with knowledge of the legal prohibition.
- The State appealed, challenging the trial court’s exclusion of the evidence and its construction of the wiretapping statutes.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the recording should be excluded under RSA 570-A:6 | Only willful violations subject to exclusion; one-party consent is misdemeanor only | File may be made in NH; willful violation precludes admission | Affirmed exclusion; willfulness requires exclusion |
| Allocation of burden at evidentiary hearing | State met its burden with available evidence | State didn't prove location/no willful violation | State did not meet burden; trial court affirmed |
| Whether hearsay testimony sufficed to prove State’s case | Investigators' evidence established facts | No direct testimony; hearsay insufficient | Trial court could discount hearsay; no error |
| Statutory construction of RSA 570-A | One-party recordings not subject to exclusion | Willful recording can be a felony; exclusion applies | Trial court's legal interpretation affirmed |
Key Cases Cited
- State v. Jette, 174 N.H. 669 (2021) (standard for reviewing trial court's discretionary evidentiary rulings)
- State v. Minson, 173 N.H. 501 (2020) (review standard for factual and legal conclusions)
- State v. Mueller, 166 N.H. 65 (2014) (definition of willfulness under wiretapping law)
- Gordon v. Gordon, 117 N.H. 862 (1977) (trial court’s authority over credibility and weight of evidence)
- In the Matter of Aube & Aube, 158 N.H. 459 (2009) (trier of fact may accept or reject testimony at its discretion)