State v. Kirsch

Supreme Court of New Hampshire · 1995 · Evidence

139 N.H. 647 (1995)

Updated August 22, 2026

EvidenceSearch WarrantRule 404(b)propensity evidencemotiveintentcommon plan or schemeprobable cause

Facts

The defendant was tried on thirteen indictments involving sexual assaults on three girls, and the State also introduced testimony from three additional young women about uncharged sexual abuse allegedly committed by the defendant through church-related access to children. Police obtained a warrant to search the defendant's Plaistow home in 1990 based on statements from two sisters describing sexual abuse that had occurred years earlier, including the use of pornography and nude photographs. The search produced pornographic materials, school photographs, addresses, and a greeting card, some of which were introduced at trial. After the State's case, seven indictments were dismissed, and the jury convicted the defendant on six remaining counts involving one victim, Karen G.

Issue

Whether the search warrant was invalid for lack of probable cause because the information was stale or because the warrant lacked particularity, and whether the trial court erred by admitting evidence of other uncharged sexual assaults under Rule 404(b) as proof of motive, intent, or common plan or scheme. The court also considered, but did not decide, the mistrial issue because it was unlikely to recur.

Rule

For search warrants, probable cause exists when all the facts and circumstances show a substantial likelihood that contraband or evidence of crime will be found in the place to be searched; when staleness is alleged, courts consider not only the passage of time but also the nature of the activity and the items sought. Under Rule 404(b), other-bad-acts evidence is admissible only if it is relevant for a purpose other than character or disposition, there is clear proof the defendant committed the other acts, and its prejudice does not substantially outweigh its probative value. To satisfy relevance, the evidence must directly bear on an issue actually in dispute, and there must be a clear connection between the articulated evidentiary purpose and the other acts. Motive must concern the reason for committing the charged crime, and common plan or scheme requires that the other acts be constituent parts of an overall scheme, not merely repeated crimes carried out in a similar way.

See the holding & full analysis

Create a free KwikCourt account to unlock the rest of this brief — and practice the case.

The court's holding and reasoning
Doctrine tests, pitfalls & exam hypotheticals
10 practice questions + 4 AI-graded essays on this case

Free sample · practice this case

Test yourself

One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Manchester, New Hampshire, police apply in 2024 for a warrant to search Nolan Pierce's apartment. The affidavit states that from 2017 to 2020 Nolan repeatedly abused two children there, sometimes recording the abuse on DVDs and taking printed photographs, and one victim says Nolan kept the images in a locked desk drawer.

Nolan moves to suppress, arguing the information was stale because the last assault described occurred four years before the warrant application. How should the court rule?

Explanation. Probable cause asks whether all facts and circumstances show a substantial likelihood that evidence will be found in the place searched. When staleness is raised, time is not considered alone; the court also considers the nature of the activity and the nature of the items sought. Where the affidavit describes protracted abuse and seeks items like photographs or recordings that a magistrate may reasonably infer are likely to be kept, the warrant is not invalid merely because several years have passed.