Deconstructing the Adam Montgomery Appeal – Part One

Adam Montgomery, convicted in the brutal beating death of his  five-year-old daughter Harmony, has appealed his conviction. In his appeal, he argues that his trial was unfair for three main reasons: the judge allowed jurors to hear both the murder case and the felony assault case at the same trial– known as joinder; the judge wrongly admitted certain prior bad abusive acts; the judge erroneously allowed into evidence a police video from two years after Harmony’s death to be shown to the jury.

At first glance, these arguments might sound compelling and maybe convincing enough to give Montgomery a second “bite of the apple” but understanding how New Hampshire and constitutional law applies to these arguments is why the appeal on the video issue is very unlikely, in my view, to succeed.

The Police Video And The Fifth Amendment Argument

Montgomery argues that the police body camera video from December 31, 2021 where police stopped his car and had him exit the vehicle to answer questions about Harmony’s whereabouts violated his Fifth Amendment right to remain silent and should not have been shown to the jury. The December 31, 2021 video showed the police locating Montgomery in a car with his girlfriend asleep in a car. During the video, officers are present and order Montgomery and his girlfriend to exit the car. An officer then frisks Montgomery and searches a coat that Montgomery retrieved from the vehicle. The officers appear to be asking Montgomery questions.

Claiming also that the video violated his constitutional rights, was irrelevant and too prejudicial, Montgomery seeks to reverse the conviction and get a new trial.  

In December 2023, prior to the trial, Montgomery filed a motion to suppress “any evidence of the encounter” with police on the ground that it would “cause the jury to engage in speculation regarding the encounter,” thereby violating his Fifth Amendment right to remain silent. The trial judge agreed in part with the defense stating that the audio component of the video should be suppressed as unconstitutional. The judge then addressed the argument over whether the video should be shown without the audio. 

The State sought to introduce the video without audio over the objection of the defense lawyers who claimed there was no constitutional distinction between showing the video with or without the audio. However, the trial court judge ruled in favor of the State, allowing the video encounter without the audio to be seen by jurors, rejecting Montgomery’s claim that his right to remain silent under the Fifth Amendment was violated by the the silent video. . 

In his brief, Montgomery claims that the judge’s decision to admit the silent video was error because, “The officers…appear to pepper him with questions that Montgomery seems to answer. Without the audio, the jury could only speculate about what was said.”

The State counters this constitutional claim stating first that it was not “adequately developed” and therefore should not be considered for judicial review. The State’s brief however, points out the weakness in Montgomery’s argument writing that, ” The State fails to understand how a video, with no audio, in which the defendant is depicted ‘seem[ing] to answer’ questions from the police…could violate his right to remain silent.” 

It is now up to the New Hampshire Supreme Court to decide if Montgomery’s Fifth Amendment rights were violated when the jury watched the video.

Relevance and Probative Value vs. Prejudicial Effect of Admitting the Video

Montgomery argues on appeal that the probative value of the video was outweighed by the danger of unfair prejudice to him during the trial. When evaluating  “probative value vs. prejudicial effect,” a judge must balance letting the jury see or hear certain evidence. Probative value means how useful certain evidence is in helping the jury make determinations during deliberations. In other words, does the evidence, in this case, of the silent video actually prove something important in the case? On the other hand, prejudicial effect means the risk that the evidence will unfairly sway the jury’s emotions, distract them, or make them view the defendant negatively for reasons that aren’t directly related to the crime charged.

In Adam Montgomery’s appeal, he argues that the jury should never have seen the video of his early encounter with police back when they were just trying to locate Harmony and long before he was charged with murder. He contends that the video is irrelevant and didn’t really prove anything about the crimes he was later accused of, but instead could have made the jury think badly of him in ways that were unfair, and unduly prejudicial toward him. 

Montgomery further assets in the brief that, “Without the audio, the jury could only speculate about what was said. He contends that there was no evidence of a fact in dispute at the time police stopped and questioned, and therefore the video should have been deemed irrelevant. 

In its brief, the State argued that the silent video was highly relevant because it showed Montgomery’s “movements, his living situation, his demeanor, and his associates in the aftermath of [Harmony’s] murder. ” The State contends in its brief that, “It is difficult to see how one could disagree with the assertion that the video was relevant to the police investigation — it was a video of the police’s very first step into the investigation of H.M.’s disappearance. Accordingly, the evidence was relevant and probative of the investigative steps taken by the police.”

Ultimately, the judge agreed with the State and allowed the silent video into evidence writing:

“Much of the encounter involves relevant information which includes neither questioning of the defendant nor the defendant’s statements. . . .The [police] issued a ‘be on the lookout’ for the defendant’s girlfriend’s vehicle ‘and individual to check on the condition of a child.’ . . . [The officer] identified the vehicle and prior to interacting with the defendant, made observations of the defendant, who he was with, and his living situation.“

In that ruling, the trial court judge made clear that the silent video was relevant. 

Even if Relevant, Was the Video more Probative than Prejudicial?

One of the most common arguments made by defendants in criminal trials regarding the admissibility of evidence is that the prejudicial value of the evidence outweighs any probative value the evidence might have if presented to a jury. Montgomery asks the Court to reverse the conviction on these grounds. Montgomery argues that under New Hampshire Rule 403, the evidence of the video can only be seen by the jury if  “its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury…”. He contends the evidence was unduly prejudicial because, “without the audio, the jury could only speculate about what was said.”

He then argues in his brief that the Court should reverse his conviction because, “none of the circumstances shown in the video made it more or less likely that Montgomery assaulted H.M. or caused her death two years earlier.” Claiming that the video would provide no probative value for the jury, he claims:

“The evidence also had no probative value on any issue of consequence. There was no dispute that in December 2021, H.M. was not in Montgomery’s care, she was missing, and the police were investigating her disappearance. Contrary to the court’s finding, there was nothing about the police investigation relative to the December 2021 encounter that was disputed, nor did the court explain otherwise.”

Much of the encounter involves relevant information which includes neither questioning of the defendant nor the defendant’s statements. . ..

– Judge Amy Messer

The State responded to these claims stating the judge committed no error. “The video did not implicate the defendant’s right to remain silent and there was no risk of unfair prejudice that the jury would speculate about the video in a way that implicated that right. The video was probative of the police investigation and the defendant’s circumstances when law enforcement became involved.” In its brief, the State takes issue with Montgomery’s assertion that there was  “no probative value on any issue of consequence” regarding the video evidence. The State points out:

On the contrary, in December 2021, the defendant was maintaining the story that he dropped H.M. off with Crystal in November 2019. The action taken by the police when they first learned of H.M.’s disappearance, and whether the story that the defendant was telling people was true, was “of consequence” to determining whether the defendant murdered HM.”

The State claims that the silent video is “highly probative” and the trial judge agreed. The judge found that, “These circumstances are relevant to the investigation and will not cause the jury to speculate on excluded or otherwise inadmissible evidence.”

The issue raised on appeal by Montgomery regarding the admission of the silent video appears to be weak and one, in my view, that the New Hampshire Supreme Court will reject. The trial judge carefully and expertly assessed the issues and balanced the rights of Montgomery applying applicable caselaw and constitutional principles in order to provide a fair and just decision. In my view, Montgomery’s arguments regarding the video fails. That said, there is no predicting what appellate courts will decide and what issues the New Hampshire Supreme Court believes should be subject to judicial review or what claims, if any, might be considered reversible error. 

Next up: Joinder— Did the judge get it right by allowing the trial to proceed on the felony assault and murder charges at the same time?