State of New Hampshire v. Joshua Pouliot, 259 A.3d 798

Defendant Joshua Pouliot was charged with multiple counts of aggravated and felonious sexual assault based on allegations by his cousin, who reported abuse occurring when he was 9–13.
A Londonderry police officer requested that the defendant call; the defendant voluntarily phoned and was interviewed by phone while living out of state (non-custodial, no Miranda warnings).
Approximately 2–5 minutes into the ~40-minute interview the officer asked about the allegations; the defendant said “no comment,” later answered other background questions, repeatedly declined to answer questions about the assaults (e.g., “I have nothing else to say”), and ultimately hung up.
Before trial the defendant moved to exclude his “no comment” and other silence evidence as invoking the Fifth Amendment; the trial court granted the motion in part (excluded statements like “nothing more to say” and hanging up) and denied it in part (admitted “no comment” and some silence), assuming selective invocation was possible and applying an unambiguous/express-invocation standard.
The jury convicted. On appeal the Supreme Court of New Hampshire affirmed the denial of exclusion (holding the “no comment” was not an unambiguous/express invocation) but remanded for further in camera review of confidential victim records under the standard later clarified in State v. Girard.

Issue	State's Argument	Pouliot's Argument	Held
Whether the defendant’s pre-Miranda “no comment” and silence during a non-custodial phone interview constituted an invocation of the Fifth Amendment privilege	Silence and “no comment” were ambiguous; defendant continued to answer other questions and did not clearly invoke the privilege, so evidence admissible	“No comment” plus subsequent refusals show he invoked his right to remain silent and the statements should be excluded	“No comment” and the silence were not an unambiguous/express invocation under the Salinas/Berghuis framework; admissible; trial court did not err in denying exclusion as to those statements (court assumed, but did not decide against, permissibility of selective invocation)
Whether the trial court erred by withholding certain confidential victim records after conducting in camera review	Trial court applied its discretion in withholding sensitive records	Withheld records may be discoverable; appellate in camera review requested and possible new trial if nondisclosure prejudiced defendant	Remanded to the trial court to re-review withheld records under the Girard standard; if nondisclosure would have required disclosure, grant new trial unless nondisclosure was harmless beyond a reasonable doubt

Miranda v. Arizona, 384 U.S. 436 (establishing Miranda warning requirements for custodial interrogation)
Salinas v. Texas, 570 U.S. 178 (requiring an express invocation of the Fifth Amendment in a non-custodial context)
Berghuis v. Thompkins, 560 U.S. 370 (holding post-Miranda invocations of right to remain silent must be unambiguous)
Davis v. United States, 512 U.S. 452 (requiring unambiguous invocation of right to counsel)
Oregon v. Mathiason, 429 U.S. 492 (distinguishing custodial interrogation and Miranda obligations)
Garner v. United States, 424 U.S. 648 (describing the Fifth Amendment privilege as an exception to testimonial compulsion)
State v. Lynch, 169 N.H. 689 (New Hampshire precedent on reviewing invocation issues under the totality of the circumstances)
State v. Watson, 170 N.H. 720 (New Hampshire case finding equivocal conduct insufficient to invoke Miranda right to silence)
State v. Jeleniewski, 147 N.H. 462 (holding equivocal refusals did not invoke Miranda right to remain silent)
Marks v. United States, 430 U.S. 188 (explaining how to treat fragmented Supreme Court decisions when identifying controlling rationale)