dissenting. Because I believe that the statements the defendant made to Manchester police officers were not probative of his guilt, that evidence that he was interviewed by those officers was unfairly prejudicial, and that no limiting instruction could have prevented the jury from considering the presence of Manchester police officers for illegitimate purposes, I respectfully dissent.
The majority observes that “the defendant does not challenge the admission of his statements due to their hypothetical nature” and “does not challenge the admission of his statements because they implied his own thoughts about rape rather than thoughts that other people described to him.” I disagree. The defendant has consistently challenged the admissibility of the statements he made to Manchester police officers under New Hampshire Rule of Evidence 403. That challenge necessarily involved a weighing of the statements’ probative value against the danger of unfair prejudice. The starting point for assessing the probative value of those statements, or their relevance under New Hampshire Rule of Evidence 401, is a consideration of what those statements actually were and the context in which they were made. Thus, by raising a Rule 403 challenge, the defendant put at issue the hypothetical nature of his statements. Moreover, at several points in his brief, the defendant referred to the differences between the context of his interview (ie., elicitation of responses to hypothetical questions) and the context in which his interview answers were used at trial (ie., as evidence of his guilt of a specific sexual assault), which further demonstrates that he did challenge the admission of his statements due to their hypothetical nature. Similarly, by invoking Rule 403, the defendant put at issue the question of unfair prejudice, which, in my view, is sufficient to challenge the statements to Manchester *184police as implying his own thoughts about rape rather than thoughts other people described to him.
The majority states that “[t]he statements made by the defendant show his consciousness of guilt because the methods for committing rape that he described are similar to the events of the alleged rape.” However, as the State itself acknowledges: “It [the evidence in question] was merely the defendant’s response to a hypothetical question, and as elicited, was completely generic. It simply conveyed the defendant’s thoughts about what motivates a rapist and how a rapist operates.” (Emphasis added.) In addition, the State also recites in its brief that the trial court indicated that the defendant’s statements “were just general statements about how he feels rapists work.” I agree that the defendant’s statements are completely generic. They describe precautions that would pertain to virtually any rape, or any other crime against a person, and could have been offered by any reasonably intelligent person responding to the hypothetical questions posed to the defendant. That is, the answers the defendant gave did not require a rapist to give them, and certainly did not require the rapist charged in the Milford crime to give them. Had the defendant responded with specific details distinctive of the Milford rape, rather than generic precautions, i.e., study the victim and cut off escape routes, then perhaps the responses might have demonstrated the defendant’s consciousness of guilt. But the defendant’s responses contained no such distinctive details. The responses the defendant gave to the hypothetical questions he was asked are no different than the answers a randomly selected person on the street might give when asked how to rob a bank. Such a person would likely suggest use of a gun, a disguise, a note for a teller, and a getaway car. Yet such a response would hardly be probative of whether that person ever committed a bank robbery, much less some specific bank robbery.
Moreover, the relationship the majority sees between the facts of the Milford rape and the defendant’s hypothetical answers is not as strong as the majority implies. For example, on the subject of studying the victim, the defendant said a rapist would “look for them for a day or so, no longer than a day, so that he wouldn’t be detected” (emphasis added), while the victim in the Milford rape described “how the defendant walked beside her and engaged in conversation with her for a few minutes before showing her a knife and beginning the assault” (emphasis added). In short, I see nothing in the content of the defendant’s hypothetical answers that demonstrates his consciousness of guilt.
I also disagree with the majority’s conclusion that “the defendant’s demeanor demonstrated that he was speaking from personal experience [and that] [t]he intensity and thoughtfulness that the defendant exhibited by reclining in his chair and becoming flushed suggested the defendant’s *185personal experience with the offense charged.” Consciousness of guilt maybe evidenced by flight, see, e.g., State v. Littlefield, 152 N.H. 331, 335 (2005), or by various kinds of statements, see, e.g., State v. Bean, 153 N.H. 380, 387 (2006); State v. Evans, 150 N.H. 416, 420 (2003). We have not, however, held that a defendant’s mere demeanor, body language or involuntary physical responses demonstrate consciousness of guilt. Nor would I be prepared to do so without first examining the possible need for expert testimony on this issue. Unlike the act of flight, or the content of a statement, the demeanor evidence on which the majority relies is, to my mind, ambiguous at best. Moreover, even if I were to accept the proposition that the defendant’s intensity, thoughtfulness, posture, and facial reddening were evidence of personal experience, the majority does not explain how to distinguish between personal experience with rape in general, which was the topic of the questions the defendant was asked, and personal experience with the rape for which he was charged.
I am also troubled by the majority’s analysis of the issue of unfair prejudice. According to the majority opinion:
The trial court could reasonably have concluded that the presence of Manchester police in Milford would not imply to the jury that the defendant was suspected of additional assaults.
The evidence of the Manchester officers’ presence in Milford to question the defendant did not unambiguously convey prior criminal conduct to the jury. The evidence established, at most, a potential inference of other criminal conduct.
What the majority does not say, and what I do not know, is what the presence of the Manchester police in Milford, by invitation, could possibly imply to the jury other than something unfairly prejudicial about the defendant, that is, something about him unrelated to the charges in Milford. If we presume that the jury would have understood that Manchester police officers normally do not investigate crimes committed in Milford, then the jury had little choice but to conclude that these two Manchester police officers were interviewing the defendant on Manchester police business. Given the questions the Manchester officers asked, the most logical inference would be that they were investigating a Manchester rape. And why would they be questioning the defendant? The most logical inference would be that he was a suspect in a Manchester rape they were investigating. And if he were not a suspect, why would the Manchester officers ask the defendant questions about how a rapist thinks? The most logical inference would be that the Manchester officers considered the *186defendant to be especially knowledgeable about rape. Given that the trial court excluded evidence concerning the source of the defendant’s knowledge of rape — that he had learned some things about rape from rapists he had met in prison — the most logical inference would be that the source of the defendant’s knowledge was personal experience as a rapist. As I look at the facts, the only reasonable inferences that the jury could draw from the presence of the Manchester officers in Milford are these: (1) the defendant was a suspect in a Manchester rape; or (2) the Manchester officers knew the defendant to be a rapist and sought him out for his special insights into the crime of rape. I can conceive of no inference that can reasonably be drawn from the presence of Manchester police officers in Milford that is not unfairly prejudicial to the defendant.
Finally, I disagree with the majority’s conclusion that the trial court could have crafted a limiting instruction that would have prevented the jury from drawing an improper inference from the fact that the defendant was questioned in Milford by Manchester police officers. While the majority posits that such a limiting instruction could have been crafted, it does not suggest what such an instruction might say. The problem, it seems to me, with any such instruction, is that if members of the jury were to be instructed that they were not to infer that the defendant was a suspect in a crime being investigated by the Manchester police, then the only possible inference they would be allowed to draw is that the Manchester officers believed that the defendant had-some kind of expert knowledge of rape that would help them solve a crime they were investigating. The defendant prefaced his comments with the explanation that the information he was providing came from rapists he met while in prison, and, at the defendant’s request, the trial court correctly excluded any reference to the defendant’s incarceration. Absent that information, any limiting instruction would lead the jury to the reasonable inference that the defendant knew a great deal about rape either because he was a rapist or because he spent time with rapists, discussing how to commit rapes. Either inference is devastating, and no other inference is reasonable. In other words, it is exceedingly difficult to imagine a limiting instruction that could have prevented the jury from drawing improper inferences from the fact that the defendant was questioned in Milford by Manchester police officers.
The majority also suggests that after the trial court excluded the introduction of evidence concerning the defendant’s incarceration as the source of his knowledge of how rapists think, the defendant should have developed the foundation for his knowledge on cross-examination, and could have elicited testimony that he was conveying statements that he had heard from other people. There are three problems with this *187suggestion. First, I am not sure that when evidence is introduced, it is the job of the opposing party to develop the foundation for the evidence offered against him. Second, if it were established that the evidence in question consisted of statements made to the defendant, how could such evidence possibly be relevant? That is, how does the fact that other people told the defendant how rapists think tend to make it more probable than it otherwise would have been that the defendant committed the charged rapes? And finally, if the defendant had conducted the suggested cross-examination, it could not have consisted of much more than this: “Q: What was the source of the defendant’s responses to your hypothetical questions? A: Things he had been told by other people.” No inquiry could have been conducted into who those other people might have been, to avoid the unfair prejudice that would have resulted from the defendant’s admission that he had been incarcerated, thus leaving the jury to infer that the defendant was a person who voluntarily spent time with rapists, a conclusion the trial court well knew to be misleading if not flatly inaccurate.
What is most disturbing in this case is that the prosecution used the defendant’s answers and his demeanor in answering hypothetical questions asked by Manchester police officers to allow the jury to draw inferences about his “consciousness of guilt” concerning the Milford rape. The jury appropriately was not told that the source of his knowledge, according to the defendant, was what he had heard from inmates who had been incarcerated with him. Accordingly, the jury would likely have concluded that the defendant was himself a rapist and knew what he described or postulated from his own experience. Any limiting instruction on this topic suggesting that what he reported he had “learned from others” would call into question the company the defendant kept and the purpose behind the conversation in which he learned about how rapists operate. Either way, the defendant would be unfairly prejudiced, either because of too much disclosure or too little.
Because I find the disputed evidence to have no probative value of consciousness of guilt, to be unfairly prejudicial, and to be incurable by any possible limiting instruction, I would reverse and remand for a new trial.
Accordingly, I respectfully dissent.