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New Hampshire Rules of Criminal Procedure

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PREAMBLE


These rules are adopted by the Supreme Court of New Hampshire pursuant to the authority established in Part II, Article 73-A of the New Hampshire Constitution.  They took effect on January 1, 2016 and apply to criminal actions pending or filed in circuit court or superior court in Cheshire and Strafford Counties on or after that date.  They took effect in Belknap County on July 1, 2016 and apply to criminal actions pending or filed in circuit court or superior court in Belknap County on or after that date. They took effect in Merrimack County on January 1, 2017 and apply to criminal actions pending or filed in circuit court or superior court in Merrimack County on or after that date. They took effect in the remaining counties as of the date set forth by Supreme Court Order pursuant to RSA 592-B:2, III. See October 17, 2016 felonies first implementation order at http://www.courts.state.nh.us/supreme/orders/10-17-16-Order.pdf, and are now in effect in all counties. In exceptional circumstances, when the court finds that the application of these rules to cases pending as of the effective date would not be feasible or would work an injustice, the court may exempt such cases from the application of these rules or from a particular rule.

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Rule 1. Scope and Interpretation

(a) Scope. These rules govern the procedure in circuit court-district division and superior courts when a person is charged as an adult with a crime or violation.    

(b) Interpretation. These rules shall be construed to provide for the just determination of every criminal proceeding. They shall be construed to secure simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay.

Comment

These rules apply to all proceedings in which a person is charged as an adult with an offense, whether a crime, such as a felony or a misdemeanor, or a violation.  See RSA 625:9. The rules establish a uniform system of procedure for the circuit court-district division and superior courts, except as otherwise specifically provided. The rules do not govern juvenile proceedings or collateral proceedings such as habeas corpus or mandamus. The rules are subject to suspension by the court when the interest of justice so requires. See Rule 37.  However, a court’s power to suspend a rule may be limited by the state or federal constitution, state statutes or common law.

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Rule 2. Adoption and Effective Date; Applicability

(a) Adoption. The Supreme Court adopts these rules pursuant to Part II, Article 73-A of the New Hampshire Constitution.  

(b) Effective Date. These rules govern all proceedings filed or pending in the circuit court-district division and superior courts in Strafford and Cheshire Counties on or after January 1, 2016. These rules govern all proceedings filed or pending in the circuit court-district division and superior courts in Belknap County on or after July 1, 2016. These rules govern all proceedings filed or pending in the circuit court-district division and superior courts in Merrimack County or or after January 1, 2017. These rules govern all proceedings filed or pending in the circuit court-district division and superior courts in Carroll, Coos and Grafton Counties on or after April 1, 2017. These rules govern all proceedings filed or pending in the circuit court-district division and superior courts in Hillsborough County on or after September 1, 2017. These rules govern all proceedings filed or pending in the circuit court-district division and superior courts in Rockingham and Sullivan Counties on or after October 1, 2017. In exceptional circumstances, when the court finds that the application of these rules to cases pending as of the effective date would not be feasible or would work an injustice, the court may exempt such cases from the application of these rules or from a particular rule.

(c) In Strafford and Cheshire Counties, pursuant to RSA 592-B:2, III, all felony and any directly related misdemeanor or violation-level offenses alleged to have occurred on or after January 1, 2016 shall be initiated in superior court.  All felony and any directly related misdemeanor or violation-level offenses alleged to have occurred before January 1, 2016 shall be initiated in circuit court.

In Belknap County, pursuant to RSA 592-B:2, III all felony and any directly related misdemeanor or violation-level offenses alleged to have occurred on or after July 1, 2016 shall be initiated in superior court. All felony and any directly related misdemeanor or violation-level offenses alleged to have occurred before July 1, 2016 shall be initiated in circuit court.

In Merrimack County, pursuant to RSA 592-B:2, III all felony and any directly related misdemeanor or violation-level offenses alleged to have occurred on or after January 1, 2017 shall be initiated in superior court. All felony and any directly related misdemeanor or violation-level offenses alleged to have occurred before January 1, 2017 shall be initiated in circuit court.

In Carroll, Coos and Grafton Counties, pursuant to RSA 592-B:2, III all felony and any directly related misdemeanor or violation-level offenses alleged to have occurred on or after April 1, 2017 shall be initiated in superior court.  All felony and any directly related misdemeanor or violation-level offenses alleged to have occurred before April 1, 2017 shall be initiated in circuit court.

In Hillsborough County, pursuant to RSA 592-B:2, III all felony and any directly related misdemeanor or violation-level offenses alleged to have occurred on or after September 1, 2017 shall be initiated in superior court. All felony and any directly related misdemeanor or violation-level offenses alleged to have occurred before September 1, 2017 shall be initiated in circuit court.

In Rockingham and Sullivan counties, pursuant to RSA 592-B:2, III all felony and any directly related misdemeanor or violation-level offenses alleged to have occurred on or after October 1, 2017 shall be initiated in superior court. All felony and any directly related misdemeanor or violation-level offenses alleged to have occurred before October 1, 2017 shall be initiated in circuit court.

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Rule 3. Complaint, Arrest Warrant, Arrest, Summons and Release Prior to Arraignment

(a) Complaint. The complaint is a written statement of the essential facts constituting the offense charged. A circuit court-district division complaint charging a class A misdemeanor or felony shall be signed under oath, provided that a complaint filed by a police officer, as defined in RSA 106-L:2, I, for a violation-level offense or a class B misdemeanor shall not require an oath.  A superior court complaint charging a misdemeanor or felony is not required to be signed under oath.  Unless otherwise prohibited by law, the court may permit a complaint to be amended if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced.

(b) Issuance of Arrest Warrant. If it appears from a sworn application for an arrest warrant that there is probable cause to believe that an offense has been committed in the State of New Hampshire, and that the defendant committed the offense, an arrest warrant for the defendant may be issued.

(c) Arrest. When a person is arrested with a warrant, the complaint, and the return form documenting the arrest shall be filed in a court of competent jurisdiction without unreasonable delay.  If a person is arrested without a warrant, the complaint shall be filed without delay and, if the person is detained in lieu of bail, an affidavit or statement signed under oath, if filed electronically that complies with Gerstein v. Pugh, 420 U.S. 103 (1975) must be filed.

(d) Summons. When the complaint charges a felony, a summons may not be issued. In any case in which it is lawful for a peace officer to make an arrest for a violation or misdemeanor without a warrant, the officer may instead issue a written summons in hand to the defendant.  In any other case in which an arrest warrant would be lawful, upon the request of the State, the person authorized by law to issue an arrest warrant may issue a summons. A summons shall be in the form required by statute.  See RSA 594:14.  If a defendant fails to appear as required by the summons, a warrant may be issued. A person who fails to appear in response to a summons may be charged with a misdemeanor as provided by statute. Upon issuance of a summons, the complaint and summons shall be filed with a court of competent jurisdiction without unreasonable delay but no later than 14 days prior to the date of arraignment.

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Rule 4. Initial Proceedings in Circuit Court-District Division

(a)  Filing of Complaint.

(1)  If the defendant is not detained prior to arraignment, the complaint shall be filed no later than fourteen (14) days prior to the date of arraignment.

(2)  If the defendant is detained pending arraignment, the complaint shall be filed prior to commencement of the arraignment.

(3)  In all cases where the defendant may enter a plea by mail and a summons has been issued to the defendant and in which the defendant has entered a plea of “not guilty” with the Division of Motor Vehicles, if the Division of Motor Vehicles has not received the complaint directly from the police agency and has forwarded the defendant’s “not guilty” plea to the designated court, the complaint must be filed with the court not later than fifteen days from the date of the court’s written notice to the law enforcement agency directing that the complaint be filed.  Any complaint filed with the court after the filing date has passed shall be summarily dismissed by the court unless good cause is shown.

(4)  In all cases alleging, as a violation level offense, a violation of RSA 318-B:2-c, II, III or IV where the defendant may enter a plea by mail directly with the court, if the defendant has entered a plea of “not guilty” or if the defendant has entered a plea of “guilty” or “no contest,” the complaint must be filed with the court not later than fifteen days from the date of the court’s written notice to the law enforcement agency directing that the complaint be filed.  Any complaint filed with the court after the filing date has passed shall be summarily dismissed by the court unless good cause is shown.

(b)  Initial Appearance.

(1)  If the defendant is not detained prior to arraignment, his or her arraignment shall be scheduled no earlier than thirty-five (35) days from the time of his or her release with a written summons or by the bail commissioner, unless otherwise required by law, by administrative order or requested by a party.  The circuit court shall use its best efforts to schedule a single arraignment day each week for defendants who are not incarcerated.

(2)  If the defendant is detained pending arraignment, his or her arraignment shall be scheduled within 24 hours, excluding weekends and holidays unless the person was arrested between 8:00 a.m. and 1:00 p.m. and the person’s attorney is not available in which case the arraignment shall take place within 36 hours of arrest, Saturdays, Sundays and holidays excluded.

(c)  Waiver of Arraignment.

(1) A defendant charged with a class A misdemeanor or a felony may waive arraignment only if he or she is represented by counsel and files with the court prior to the date of arraignment a written waiver signed by the defendant and his or her counsel. If not signed by the defendant, counsel for the defendant may certify the following:

(A) That the charges and potential penalties have been discussed with the defendant;

(B) That the personal information of the defendant is accurate;

(C) That the defendant has been advised and understands that existing bail orders remain in effect pending disposition of the case or modification by the court; and

(D) That the defendant understands that he is entitled to an arraignment conducted by the Court but is waiving that arraignment.

(2) A defendant charged with a class B misdemeanor or violation for which an appearance is mandated may waive arraignment if he or she files with the court prior to the date of arraignment a written waiver signed by the defendant.

(d)  In cases where the defendant is not detained, arraignment may be continued without the personal appearance of the defendant or the entry of an appearance by counsel upon timely motion made in writing if the court is satisfied with the terms of bail. However, absent an appearance by counsel on behalf of the defendant, no case in which a defendant is charged with a class A misdemeanor or felony shall be continued for arraignment to a date less than thirty (30) days before trial.

(e) Gerstein Determination. If the defendant was arrested without a warrant and is held in custody, or if the defendant was arrested pursuant to a warrant that was not issued by a judge and is held in custody, the court shall require the state to demonstrate probable cause for arrest.  This determination may be made at the circuit court-district division arraignment, but in any event, must be made within forty-eight hours of the defendant's arrest, Saturdays, Sundays and holidays excluded.

(1) The state may present proof by way of sworn affidavit or by oral testimony. Oral testimony, if submitted, shall be under oath and recorded.

(2) The defendant does not have the right to be present, present evidence or cross-examine witnesses. The proceeding shall be non-adversarial. 

(3) The court shall make a written finding on the issue of probable cause. The finding and the affidavit shall become part of the public record, shall be available to the defendant and must be filed with the appropriate court on the next business day.

(4) If a motion to seal the affidavit has been filed with the request for a Gerstein determination, the court shall rule on the motion to seal when ruling on the issue of probable cause.

(f)  Copy of Complaint. No later than at the time of the first appearance in court, the defendant shall be provided with a copy of the complaint.

(g)  Arraignments on Misdemeanors and Violations. The following procedures apply to arraignments on misdemeanors and violations.

(1) Any misdemeanor complaint filed with the court without specification of the classification shall be presumed to be a class B misdemeanor unless specified by law or unless the State files a notice of intent to seek class A misdemeanor penalties before or at the time of arraignment. Such notice shall be on a court-approved form.

(2) If the defendant is charged with a misdemeanor or violation, the court shall inform the defendant of the nature of the charges, the possible penalties, the right to retain counsel, and in class A misdemeanor cases, the right to have an attorney appointed by the court pursuant to Rule 5 if the defendant is unable to afford an attorney. The defendant shall be asked to enter a plea of guilty, not guilty, or, with the consent of the court, nolo contendere. If a defendant refuses to plead or if a court refuses to accept a plea of guilty, the court shall enter a plea of not guilty. Upon entry of a plea of not guilty, the case shall be scheduled for trial.

(h) Circuit Court-District Division Appearance on Felonies. If the defendant is charged with a felony, the defendant shall not be called upon to plead.  The court shall inform the defendant of the nature of the charges, the possible penalties, the privilege against self-incrimination, the right to retain counsel, and the right to have an attorney appointed by the court pursuant to Rule 5 if the defendant is unable to afford an attorney. The court shall inform the defendant of the right to a probable cause hearing that will be conducted pursuant to Rule 6.  If the defendant is represented by counsel, and if the State and defense notify the court that each is satisfied with the terms of bail, the arraignment may be continued until the probable cause hearing.

(i)  The court may issue a bench warrant for the arrest of any defendant who fails to appear on the designated date for his appearance, or who fails to answer by waiver or who fails to comply with any order of the Court.

Comment

      Rule 4(e) provides for a detention hearing to satisfy the Fourth Amendment requirements as set forth in County of Riverside v. McLaughlin, 111 S. Ct. 1661 (1991), and Gerstein v. Pugh, 420 U.S. 103 (1975).

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Rule 5. Appearance and Appointment of Counsel in Circuit Court-District Division and Superior Court

(a) In any case where a person is arrested for a class A misdemeanor and/or felony and appears before a bail commissioner, prior to the defendant's release or detention, the bail commissioner shall provide the defendant with oral and written notice that, if he or she is unable to afford counsel, counsel will be appointed prior to that arraignment, if requested, subject to the state's right of reimbursement for expenses related thereto.

     In any case where a person arrested for a class A misdemeanor is released with a written summons, the summons shall provide the defendant with written notice that, if he or she is unable to afford counsel, counsel will be appointed prior to the arraignment, if requested, subject to the state's right of reimbursement for expenses related thereto. The summons shall also provide the person with written notice of the process for obtaining court-appointed counsel.

(b) In any case in which a defendant appears before a bail commissioner pursuant to paragraph a, the defendant shall also be provided with a Request for a lawyer form (financial statement) in order to apply for counsel at arraignment. The bail commissioner shall request the defendant to complete the Request for a lawyer form prior to his or her release or detention, in which case the bail commissioner shall forward the Request for a lawyer form to the court or the defendant may return the Request for a lawyer form directly to the court in which his or her arraignment is scheduled. If the defendant is financially eligible, counsel shall be appointed within 24 hours, excluding weekends and holidays, from the date of the receipt of the request by the court but not later than the filing of the complaint. The court shall inform appointed counsel immediately of the appointment (1) by telephone, facsimile or electronically if the defendant is detained or (2) by telephone, electronically or by first-class mail if the defendant is not detained.

Nothing herein shall prevent a defendant charged with a class A misdemeanor or felony and who is unable to afford counsel from requesting counsel at any time after arrest by completing a Request for a lawyer form and submitting it to the court having jurisdiction over the matter. The court shall act on the request for counsel within 24 hours, excluding weekends and holidays, from the date the request is submitted but not later than the filing of the complaint. If the defendant is financially eligible, the court shall inform counsel immediately of the appointment (1) by telephone, facsimile or electronically if the defendant is detained or (2) by telephone, electronically or by first-class mail if the defendant is not detained.

(c) In any case where the defendant is charged with a class A misdemeanor or felony and appears at arraignment without counsel, the court shall inform the defendant, in writing or on the record, of the offense with which he is charged and the possible penalties, of his or her privilege against self-incrimination, his or her right to be represented by counsel throughout the case, and that if he or she is unable to afford counsel, counsel will be appointed, if requested, subject to the state's right to reimbursement for expenses related thereto.

Except as provided in subsection (f) or (g) of this rule, unless the defendant waives the presence of counsel at the arraignment in writing or on the record, the court shall take no other action at the arraignment aside from (1) advising the defendant of the charges against him or her and entering a pro forma plea of not guilty (or no plea in a felony case if filed in the circuit court) on the defendant's behalf, and (2) informing the defendant that the issue of bail and any other issue requiring an adversary hearing will not be addressed until his or her counsel is present.

(d) If a defendant who is not detained indicates a financial inability to obtain counsel and a desire for appointed counsel, the court shall instruct the defendant to complete a Request for a lawyer form prior to leaving the courthouse and, if eligible, counsel shall be appointed no later than 24 hours from the date of the request. The court shall inform counsel of the appointment as soon as reasonably possible by telephone, facsimile or electronically. A bail hearing shall be scheduled at the request of the defendant.

(e) If a defendant who is detained indicates a financial inability to obtain counsel and a desire for appointed counsel, the court shall instruct the defendant to complete a Request for a lawyer form immediately and, if eligible, counsel shall be appointed immediately. The court shall inform counsel of the appointment immediately in person, if present, or by telephone or electronically if counsel for the detained defendant is unavailable at the court at the time of the arraignment. A bail hearing, at which the defendant's counsel is present, shall be held within 24 hours of a written or oral request for same made by the defendant's counsel, weekends and holidays excluded.

(f) Nothing in this rule shall prevent the court from reducing a detained or non-detained defendant's bail or conditions of bail without his or her counsel present, but if the state opposes such reduction, it shall have the right to be heard in argument before the court makes a decision. Any such reduction shall be without prejudice to the defendant's right to a further bail hearing, with counsel present, as specified in subsections (d) or (e) of this rule.

(g) Nothing in this rule shall prevent the court from increasing a detained or non-detained defendant's bail or conditions of bail without the presence of counsel when the court makes a specific finding that such increase is necessary to reasonably assure the appearance of the defendant as required or that release without such increase will endanger the safety of the defendant or any other person or the community. Any such increase in bail or conditions of bail shall be without prejudice to the defendant's right to a further bail hearing, with counsel present, as specified in subsections (d) or (e) of this rule.

(h) Withdrawal. Except as is provided in (i) below, no attorney shall be permitted to withdraw an appearance after the case has been assigned for trial or hearing, except upon motion granted by the court for good cause shown, and on such terms as the court may order. Any motion to withdraw filed by counsel shall set forth the reasons for the motion but shall be effective only upon approval of the court. A factor which may be considered by the court in determining whether good cause to withdraw has been shown is the client's failure to pay for the attorney's services. Whenever the court approves the withdrawal of appointed defense counsel, the court shall appoint substitute counsel forthwith and notify the defendant of said appointment.

(i) Withdrawal of Appointed Counsel. If appointed counsel in a criminal matter must withdraw due to a conflict of interest as defined by Rules 1.7(a), 1.9(a) and (b), and/or 1.10 (a), (b), and (c) of the New Hampshire Rules of Professional Conduct, counsel shall forward a Notice of Withdrawal to the court and substitute counsel shall be appointed forthwith. Court approval of a withdrawal shall not be required in this circumstance unless the Notice of Withdrawal is filed less than twenty days from the date of a trial, in which case court approval shall be required. Automatic withdrawal shall not be allowed and court approval shall be required if the basis for withdrawal is a breakdown in the relationship with the client, the failure of the client to pay legal fees, or any other conflict not specifically set forth in Rules 1.7(a), 1.9(a) and (b), and/or 1.10(a), (b), and (c) of the New Hampshire Rules of Professional Conduct.

(j)   Automatic Withdrawal of Court-Appointed Counsel.  In all criminal cases, the appearance of counsel for the defendant shall be deemed to be withdrawn thirty days after sentence is imposed unless the sentence imposed was a deferred sentence or unless a post-sentencing motion is filed within said thirty-day period.  Where a deferred sentence is imposed, the appearance of counsel for the defendant shall be deemed to be withdrawn thirty days after the deferred sentence is brought forward or suspended.  Where a post-sentencing motion is filed within thirty days after imposition of sentence, the appearance of counsel for the defendant shall be deemed to be withdrawn thirty days after the court rules on said motion.  Provided, however, that in any criminal case in which an appeal to the supreme court is filed, trial counsel shall remain responsible for representing the defendant in the supreme court pursuant to Supreme Court Rule 32.

(k)  Continuity of Counsel in Circuit and Superior Courts.  Where a defendant in a criminal case has filed a financial affidavit and has been determined to be eligible for court-appointed counsel in the circuit court, the defendant shall not be required to file a new financial affidavit upon the appeal or transfer of the same case to the superior court unless facts are brought to the court’s attention indicating that there has been a substantial change in the defendant’s financial circumstances. Notwithstanding subsection (j) of this rule, when counsel appears for a defendant in a criminal case in the circuit court, said appearance shall be deemed to continue upon any appeal or transfer of the same case to the superior court and until the case is finally disposed of in the trial courts.

(l)  Multiple Representation

(1) A lawyer shall not represent multiple defendants if such representation would violate the Rules of Professional Conduct.

(2) A lawyer shall not be permitted to represent more than one defendant in a criminal action unless:

(A) The lawyer investigates the possibility of a conflict of interest early in the proceedings and discusses the possibility with each client; and

(B) The lawyer determines that a conflict is highly unlikely; and

(C) The lawyer notifies the court of the multiple representation and a hearing on the record is promptly held. The court shall inquire into all relevant facts, including, but not limited to, the following:

(i) Evidence of the lawyer's discussion of the matter with each client;

(ii) Evidence of each client's informed consent to multiple representation based on the client's understanding of the entitlement to conflict-free counsel;

(iii) A written or oral waiver by each client of any potential conflict arising from the multiple representation; and

 (D) The court finds by clear and convincing evidence that the potential for conflict is very slight.

(m)  Counsel of Record; Bail. An attorney shall not post bail or assume any bail obligations in a case in which the attorney is counsel of record.

 

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Rule 6. Probable Cause Hearing

(a) Circuit Court-District Division Probable Cause Hearing

(1) Jurisdiction. A probable cause hearing shall be scheduled in accordance with this rule in any case which is beyond the trial jurisdiction of the circuit court-district division and in which the defendant has not been indicted.

(2) Scheduling. The court shall hold a probable cause hearing within ten days following the arraignment if the defendant is in custody. The court shall hold the hearing within twenty days of the arraignment if the defendant is not in custody. The probable cause hearing shall not be held if the defendant is notified before the hearing of an indictment on the charge that would have been the subject of the hearing or if the clerk of the Circuit Court receives reliable information that the defendant has been indicted on the charge which would have been the subject of the hearing.  A probable cause hearing may be adjourned for reasonable cause.

(3)  Notice to Defendant.  The court shall inform the defendant of the complaint, the right to counsel, and the right to a probable cause hearing.  The court shall also tell the defendant that there is no obligation to make a statement and that any statement may be used against the defendant. 

(4) Evidence. The Rules of Evidence shall not apply at the hearing. The defendant may cross-examine adverse witnesses, testify and introduce evidence.  If the defendant elects to be examined, the defendant shall be sworn, but it shall always be a sufficient answer that the defendant declines to answer the question; and if at any time the defendant declines to answer further, the examination shall cease.  The parties may request sequestration of the witnesses.

(5) Finding of Probable Cause. If the court determines that there is probable cause to believe that a charged offense has been committed and the defendant committed it, the court shall hold the defendant to answer in superior court.

(6) Finding of No Probable Cause. If the court determines that there is no probable cause to believe that a charged offense has been committed or that the defendant committed it, the court shall dismiss the complaint and discharge the defendant. The discharge of the defendant shall not preclude the State from instituting a subsequent prosecution for the same offense or another offense. 

(7) Waiver. A defendant may waive the right to a probable cause hearing.  The waiver shall be in writing.

(8)  Upon indictment or finding of probable cause, the complaint shall be so marked, and the clerk of the Circuit Court shall thereafter send to the clerk of the Superior Court any bail or bond pertaining thereto, along with a copy of such complaint where possible.

(b)  Superior Court

(1) A defendant may challenge probable cause during the period from arrest to indictment by motion requesting a probable cause hearing under the following conditions:

(A) A complaint has been filed in superior court;

(B) The defendant has not been indicted by the grand jury; and

(C) The defendant asserts a claim that a material element of the charge is without factual basis or that the charge is legally insufficient to constitute a felony offense.

(2) Upon review of the motion, the court shall determine whether a hearing is necessary to assist the court in its determination of probable cause.  A request for a hearing shall not be unreasonably denied.  If a hearing is scheduled, it shall be held as soon as the court docket permits, but in any event within 10 days of filing of the motion if the defendant is incarcerated and within 20 days of the filing of the motion if the defendant is not incarcerated.

(3) A probable cause hearing shall be scheduled:

(A) If an arrest is supported by an affidavit or statement filed under oath that was filed under seal, and the affidavit remains under seal at the time of the request for a probable cause hearing, or

(B) If a court determines discovery should not be provided in accordance with the timelines set forth in RSA 592-B:6, II and the defendant has not been indicted.

(4) If a hearing is held, the state shall bear the burden of proving there is probable cause to believe that a felony has been committed and that the person charged has committed it.  At the hearing, the accused may cross-examine witnesses and present evidence.

(5) Finding of Probable Cause.  If the court determines that there is probable cause to believe that a charged offense has been committed and the defendant committed it, the court shall hold the defendant to answer for action by the grand jury.

(6) Finding of No Probable Cause. If the court determines that there is no probable cause to believe that a charged offense has been committed or that the defendant committed it, the court shall dismiss the complaint and discharge the defendant. The discharge of the defendant shall not preclude the state from instituting a subsequent prosecution for the same offense or another offense.


Comment

A preliminary examination allows a defendant to challenge the decision of the prosecuting authorities to limit the defendant’s liberty pending consideration of the matter by a grand jury. State v. Arnault, 114 N.H. 216 (1974); Jewett v. Siegmund, 110 N.H. 203 (1970). The preliminary examination is not a trial on guilt or innocence.  It is merely an examination to determine if the State can establish that there is enough evidence to proceed to trial. In essence, it is a hearing to determine whether probable cause exists. See State ex rel McLetchie v. Laconia Dist. Court, 106 N.H. 48 (1964).

Courts and parties should note that RSA 596-A:3 requires the court to caution a defendant about the right to counsel and the right to remain silent.

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Rule 7. Definitions

(a)  Superior Court Complaint.  The initiating charging document filed in superior court for felonies and misdemeanors over which the superior court has jurisdiction.

(b)  Indictment. Felonies and misdemeanors punishable by a term of imprisonment exceeding one year shall be charged by an indictment. Misdemeanors punishable by a term of imprisonment of one year or less may be charged in an indictment. An indictment shall be returned by a grand jury and shall be prosecuted in superior court.

(c)  Misdemeanor Appealed to Superior Court.  When a misdemeanor conviction is appealed to superior court, the charging document is the complaint that was filed in the circuit court-district division.

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Rule 8. The Grand Jury

(a) Summoning Grand Juries.  The superior court shall order a grand jury to be summoned and convened at such time and for such duration as the public interest requires, in the manner prescribed by law. The grand jury shall consist of no fewer than twelve nor more than twenty-three members. The grand jury shall receive, prior to performing its duties, instructions relative thereto and shall be sworn in accordance with law. Such instructions may be given by a justice of the superior court, by utilization of a prerecorded audio or video presentation created for this purpose, or by a combination of use of a recording and instruction by a justice.

(b) Conduct of Proceedings

(1) State's counsel or the foreperson of the grand jury shall swear and examine witnesses. The State shall present evidence on each matter before the grand jury.

(2) The grand jury’s role is to diligently inquire into possible criminal conduct. The grand jury may also consider whether to return an indictment on a felony or misdemeanor.

(3) Upon request, a grand jury witness shall be given reasonable opportunity to consult with counsel.

(4) If twelve or more grand jurors find probable cause that a felony or misdemeanor was committed, the grand jury should return an indictment.

(5) Upon application of the Attorney General or upon the court's own motion, a justice of the superior court may authorize a stenographic record of the testimony of any witness before a grand jury to be taken by a sworn and qualified reporter. Disclosure of such testimony may be made only in accordance with Supreme Court Rule 52.

(6) A grand juror, interpreter, stenographer, typist who transcribes recorded testimony, attorney for the State, or any person to whom disclosure is made under paragraph (C) below, shall not disclose matters occurring before the grand jury, except:

(A) As provided by the Supreme Court rules;

(B) To an attorney for the State for use in the performance of such attorney's duties;

(C) To such state, local or federal government personnel as are deemed necessary by an attorney for the State to assist in the performance of such attorney's duty to enforce state criminal law;

(D) When so directed by a court in connection with a judicial proceeding;

(E) When permitted by the court at the request of an attorney for the State, when the disclosure is made by an attorney for the State to another grand jury in this state; or

(F) When permitted by a court at the request of an attorney for the State upon a showing that such matters may disclose a violation of federal criminal law or the criminal law of another state, to an appropriate official of the federal government or of such other state or subdivision of a state, for the purpose of enforcing such law.

(c) Notice to Defendant. If the grand jury returns a no true bill after consideration of a charge against a defendant who is incarcerated or is subject to bail conditions, the court shall immediately notify the defendant or counsel of record.  If the grand jury returns an indictment, the defendant shall be notified by mail unless the court issues a capias for the defendant’s arrest.

(d) Indictment.

(1)  Case initiated in Circuit Court-District Division.  The superior court will dismiss without prejudice and vacate bail orders in all cases in which an indictment has not been returned ninety days after the matter is bound over, unless, prior to that time, the prosecution files a motion seeking an extension of time and explaining why the extension is necessary.

(2)  Case initiated in Superior Court.  The superior court will dismiss without prejudice all felony complaints and enhanced misdemeanors in which an indictment has not been returned within 90 days of the complaint being filed, unless, prior to that time, the prosecution files a motion seeking an extension of time and explaining why the extension is necessary or the defendant waives speedy indictment in writing. If no other charges remain pending in the case after dismissal the court shall vacate all bail orders.

(3)  If a warrant has issued for the defendant’s failure to appear at arraignment on complaints filed before indictment, or any other pre-indictment hearing in superior court, the indictment deadline in paragraph (2) shall not apply.  The superior court will dismiss without prejudice all felony complaints and enhanced misdemeanors if the defendant has not been indicted within 60 days after the defendant has appeared in superior court to answer to the charge.  If no other charges remain pending in the case after dismissal the court shall vacate all bail orders.

Comment

Rule (b)(6) restates the traditional rule of grand jury secrecy. This paragraph is based on Federal Rule of Criminal Procedure 6 and prohibits grand jurors, interpreters, stenographers, typists who transcribe recorded testimony or an attorney for the State, or any person to whom disclosure is made under the rule, from disclosing information received except under a few narrow circumstances. It is important, however, to note that this rule does not bar a witness from later revealing the substance of the witness’s testimony before a grand jury.

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Rule 9. Waiver of Indictment

An offense that is punishable by a term of imprisonment exceeding one year may be prosecuted by a complaint with a waiver of indictment. Waiver of indictment is not permitted for offenses punishable by death. If the charge proceeds by a waiver of indictment, the defendant shall be informed of the nature of the charge and the right to have the charge presented to a grand jury. The waiver must be in open court and on the record.

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Rule 10. Arraignment in Superior Court

(a) Arrest on a Charge Originating in Superior Court. Any person who is arrested on a warrant issued pursuant to an indictment or complaint and who is not released on bail set by a bail commissioner shall be taken before the superior court without unnecessary delay.  Such persons shall be taken before the superior court no later than 24 hours after the arrest, Saturdays, Sundays and holidays excepted, or no later than 36 hours after arrest if arrested between 8:00 a.m. and 1:00 p.m. and the person’s attorney is unable to attend an arraignment on the same day, Saturdays, Sundays, and holidays excepted. Such persons shall be entitled to a bail hearing at that time. If the person is released prior to being taken before the superior court, the person shall be directed to appear no more than twenty days after arrest, in superior court for arraignment at a stated time and date.

(b) Probable Cause Determination. If the defendant was arrested without a warrant and is held in custody, or if the defendant was arrested pursuant to a warrant that was not issued by a judge and is held in custody, the court shall require the state to demonstrate, by affidavit or by statement filed under oath if filed electronically, probable cause for arrest. This determination must be made within forty-eight hours of the defendant's arrest Saturday, Sunday and holidays excepted.

(1) The court shall make a written finding on the issue of probable cause. The written finding and affidavit or statement filed under oath if filed electronically shall become part of the public record, shall be available to the defendant, and must be filed with the appropriate court on the next business day.

(2) If a motion to seal the affidavit or statement filed under oath if filed electronically has been filed with the request for a probable cause determination, the court shall rule on the motion to seal when ruling on the issue of probable cause.

(c) Copy of complaint. The complaint shall be filed in Superior Court by the county attorney, attorney general or their designee 48 hours prior to arraignment, for non-incarcerated defendants, and no later than arraignment for incarcerated defendants. The defendant shall be provided with a copy of the complaint.

(d) Arraignment. Arraignment shall be conducted in open court. The court shall read the indictment or complaint to the defendant or state to the defendant the substance of the charge. If the defendant appears without counsel, the court shall inform the defendant of the possible penalties, the privilege against self-incrimination, the right to retain counsel, and the right to have an attorney appointed by the court pursuant to Rule 5 if the defendant is unable to afford an attorney. The defendant shall be called upon to plead to the charge, unless unrepresented by counsel, in which case a plea of not guilty shall be entered on the defendant's behalf.  If a defendant refuses to plead or if a court refuses to accept a plea of guilty, the court shall enter a plea of not guilty. Upon entry of a plea of not guilty, the case shall be scheduled for a dispositional conference. 

(e) Waiver of Arraignment. A defendant who is represented by an attorney may enter a plea of not guilty and waive formal arraignment as follows. Before the arraignment hearing, the attorney shall file a written statement signed by the defendant certifying that the defendant has reviewed a copy of the indictment or complaint. The attorney shall further certify that the defendant read the indictment or complaint or that it was read to the defendant, and that the defendant understands the substance of the charge and the possible penalties, waives formal arraignment, and pleads not guilty to the charge.

(f) Arraignment on Misdemeanor Appeal. No arraignment shall be held on a misdemeanor appeal. Upon the filing of a misdemeanor appeal in superior court, a hearing notice consistent with these rules shall be issued. The date of the issuance of a hearing notice shall be the equivalent of an arraignment and entry of not guilty plea for the purpose of determining deadlines.

|501|4826

Rule 11. Pleas

(a) Circuit Court-District Division

(1) Violations. A plea of guilty or nolo contendere to a violation may be accepted by the court without formal hearing unless the violation carries a statutorily enhanced penalty upon a subsequent conviction subjecting the defendant to incarceration.

(2) Plea by Mail. In all cases in which a defendant may enter a plea by mail pursuant to RSA 262:44, the defendant may enter a plea by mail in accordance with the procedures provided by RSA 502-A:19-b.

(3) Misdemeanors and Enhanced Violations. Before accepting a plea of guilty or, with the consent of the court, a plea of nolo contendere, to any misdemeanor, or to a violation that requires the defendant to appear for arraignment and that carries a statutorily enhanced penalty upon a subsequent conviction, the court shall personally address the defendant and determine on the record that:

(A) There is a factual basis for the plea;

(B) The defendant understands the crime charged and the factual basis of that charge;

(C) The defendant’s plea is knowing, intelligent and voluntary;

(D) The defendant’s plea is not the result of any unlawful force, threats or promises; and 

(E) The defendant understands and waives the statutory and constitutional rights as set forth in the Acknowledgement and Waiver of Rights form.

(4) Acknowledgment and Waiver of Rights Forms. The appropriate Acknowledgment and Waiver of Rights form shall be read and signed by the defendant, counsel, if any, and the presiding justice.

(b) Superior Court

(1) Deadlines for Filing Plea Agreements. The court may establish deadlines for the filing of plea agreements.

(2) Pleas. Before accepting a plea of guilty or, with the consent of the court, a plea of nolo contendere, to any felony, misdemeanor, or violation that carries a statutorily enhanced penalty upon a subsequent conviction, the court shall personally address the defendant and determine on the record that:

(A) There is a factual basis for the plea;

(B) The defendant understands the crime charged and the factual basis of that charge;

(C) The defendant’s plea is knowing, intelligent and voluntary;

(D) The defendant’s plea is not the result of any unlawful force, threats or promises; and

(E) The defendant understands and waives the statutory and constitutional rights as set forth in the Acknowledgement and Waiver of Rights form.

(3) Acknowledgment and Waiver of Rights Forms. The appropriate Acknowledgment and Waiver of Rights form shall be read and signed by the defendant, counsel, if any, and the presiding justice.

(c) Negotiated Pleas – Circuit Court-District Division and Superior Courts

(1) Permissibility. If the court accepts a plea agreement, the sentence imposed by the court shall not violate the terms of the agreement.

(2) Court's Rejection of Negotiated Plea. If the court rejects a plea agreement, the court shall so advise the parties, and the defendant shall be afforded the opportunity to withdraw the plea of guilty or nolo contendere.

(3) Sentence Review.  See Rule 29(k)(14)(c).

Comment

This rule should be read in conjunction with Rule 29 regarding sentencing.

Rule 11(a)(3) and (a)(4), applicable to circuit court pleas, and Rule 11(b)(2) and (b)(3), applicable to superior court pleas, address the colloquy required between the court and defendant in cases where incarceration upon conviction is possible. In sum, these provisions require the record to reflect that a factual basis for the charge exists; the defendant understands the crime charged and its factual basis; the plea is knowing, intelligent, and voluntary; the plea is not the result of threats or promises; and the defendant appreciates the constitutional rights being waived as part of the plea. In practice, the factual basis for the charge referred to in Rule 11(a)(3)(A) and (b)(2)(A) is provided by the State in its offer of proof during the plea hearing.  The rule reflects the constitutional requirement that the trial court affirmatively inquire, on the record, into the defendant's volition in entering the plea. Boykin v. Alabama, 395 U.S. 238 (1969); Richard v. MacAskill, 129 N.H. 405 (1987). For a plea to be knowing, intelligent, and voluntary, the defendant must understand the essential elements of the crime to which a guilty plea is being entered. State v. Thornton, 140 N.H. 532, 537 (1995). To find that a plea has been intelligently made, the court must fully apprise the defendant of the consequences of the plea and the possible penalties that may be imposed. State v. Roy, 118 N.H. 2 (1978); State v. Manoly, 110 N.H. 434 (1974). A defendant need not be apprised, however, of all possible collateral consequences of the plea. State v. Elliott, 133 N.H. 190 (1990); see State v. Chace, 151, N.H. 310, 313 (2004) (defendant need not be advised that loss of license will be collateral consequence of pleading guilty to DWI). In Padilla v. Kentucky, 559 U.S. 356 (2010), the Supreme Court made clear counsel’s obligation to ensure that a defendant understands the deportation implications, if any, of a conviction. If the record does not reflect that a plea is voluntarily and intelligently made, it may be withdrawn as a matter of federal constitutional law. Boykin, 395 U.S. at 238.

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Rule 12. Discovery

 (a) Circuit Court-District Division

(1) At the defendant's first appearance before the court, the court shall inform the defendant of his or her ability to obtain discovery from the State. Upon request, in misdemeanor and violation-level cases, the prosecuting attorney shall furnish the defendant with the following:

(A) A copy of records of statements or confessions, signed or unsigned, by the defendant, to any law enforcement officer or agent;

(B) A list of any tangible objects, papers, documents or books obtained from or belonging to the defendant; and

(C) A statement as to whether or not the foregoing evidence, or any part thereof, will be offered at the trial.

        (2) Not less than fourteen days prior to trial, the State shall provide the defendant with:

(A) a list of names of witnesses, including experts and reports, and a list of any lab reports, with copies thereof, it anticipates introducing at trial;

(B) all exculpatory materials required to be disclosed pursuant to the doctrine of Brady v. Maryland, 373 U.S. 83 (1963), and its progeny, including State v. Laurie, 139 N.H. 325 (1995); and

(C) notification of the State's intention to offer at trial pursuant to Rule of Evidence 404(b) evidence of other crimes, wrongs, or acts committed by the defendant, as well as copies of or access to all statements, reports or other materials that the State will rely on to prove the commission of such other crimes, wrongs or acts.

(3) Not less than seven days prior to trial, the defendant shall provide the State with a list of names of witnesses, including experts and reports, and a list of any lab reports, with copies thereof, the defendant anticipates introducing at trial.

(4)  Sanctions for Failure to Comply.  If at any time during the proceedings it is brought to the attention of the court that a party has failed to comply with this rule, the court may take such action as it deems just under the circumstances, including but not limited to:

(A) ordering the party to provide the discovery not previously provided;

(B) granting a continuance of the trial or hearing;

(C) prohibiting the party from introducing the evidence not disclosed;

(D) assessing the costs and attorneys fees against the party or counsel who has violated the terms of this rule.

     (b) Superior Court. The following discovery and scheduling provisions shall apply to all criminal cases in the superior court unless otherwise ordered by the presiding justice.          

(1) Pretrial Disclosure by the State. If a case is initiated in superior court, the State shall provide the materials specified in RSA 592-B:6.  In addition, within forty-five calendar days after the entry of a not guilty plea by the defendant, the State shall provide the defendant with the materials specified below.  If a case is originated in circuit court-district division, within ten calendar days after the entry of a not-guilty plea by the defendant, the State shall provide the defendant with the materials specified below.

(A) A copy of all statements, written or oral, signed or unsigned, made by the defendant to any law enforcement officer or the officer’s agent which are intended for use by the State as evidence at trial or at a pretrial evidentiary hearing. 

(B) Copies of all police reports; statements of witnesses; and to the extent the State is in possession of such materials, results or reports of physical or mental examinations, scientific tests or experiments, or any other reports or statements of experts, as well as a summary of each expert's qualifications, with the exception of drug testing results from the New Hampshire State Forensic Laboratory, which shall be provided within ten court days from the date of indictment, or such other date as may be authorized in the dispositional conference order.

(C) The defendant's prior criminal record.

(D) Copies of or access to all books, papers, documents, photographs, tangible objects, buildings or places that are intended for use by the State as evidence at trial or at a pretrial evidentiary hearing.

(E) All exculpatory materials required to be disclosed pursuant to the doctrine of Brady v. Maryland, 373 U.S. 83 (1963), and its progeny, including State v. Laurie, 139 N.H. 325 (1995).

(F) Notification of the State's intention to offer at trial pursuant to Rule of Evidence 404(b) evidence of other crimes, wrongs, or acts committed by the defendant, as well as copies of or access to all statements, reports or other materials that the State will rely on to prove the commission of such other crimes, wrongs or acts.

          (2) Pretrial Disclosure by the Defendant

Not less than sixty calendar days prior to jury selection if the case originated in Superior Court or not less than thirty calendar days prior to jury selection if the case originated in Circuit Court-District Division or, in the case of a pretrial evidentiary hearing, not less than three calendar days prior to such hearing, the defendant shall provide the State with copies of or access to all books, papers, documents, photographs, tangible objects, buildings or places which are intended for use by the defendant as evidence at the trial or hearing.

(3) Dispositional Conferences.  The purpose of the dispositional conference is to facilitate meaningful discussion and early resolution of cases.

(A) Unless the State does not intend to make a plea offer, in which case it shall so advise the defendant within the time limits specified herein, the State shall provide a written offer for a negotiated plea, in compliance with the Victim’s Rights statute, RSA 21-M:8-k, to the defense, no less than fourteen (14) days prior to the dispositional conference.  The defense shall respond to the State’s offer no later than ten (10) days after receipt.

(B)  The judge shall have broad discretion in the conduct of the dispositional conference. 

(C) The State, defendant, and defendant’s counsel, if any, shall appear at the dispositional conference.  The State and the defendant shall be represented at the dispositional conference by an attorney who has full knowledge of the facts and the ability to negotiate a resolution of the case. Counsel shall be prepared to discuss the impact of known charges being brought against the defendant in other jurisdictions, if any.

(D) If a plea agreement is not reached at the dispositional conference, the matter shall be set for trial. The court may also schedule hearings on any motions discussed during the dispositional conference.  Counsel shall be prepared to discuss their availability for trial or hearing as scheduled by the court.

(E) Evidence of conduct or statements made during the dispositional conference about the facts and/or merits of the case is not admissible as evidence at a hearing or trial.

(F) If the case may involve expert testimony from either party, both sides shall be prepared to address disclosure deadlines for: all results or reports of physical or mental examinations, scientific tests or experiments or other reports or statements prepared or conducted by the expert witness; a summary of each such expert’s qualifications; rebuttal expert reports and qualifications; and expert depositions.  Except for good cause shown, the failure of either party to set expert witness disclosure deadlines at the dispositional conference may be grounds to exclude the expert from testifying at trial.

 

          (4) Exchange of Information Concerning Trial Witnesses

(A) Not less than twenty calendar days prior to the final pretrial conference or, in the case of a pretrial evidentiary hearing, not less than three calendar days prior to such hearing, the State shall provide the defendant with a list of the names of the witnesses it anticipates calling at the trial or hearing. Contemporaneously with the furnishing of such witness list and to the extent not already provided pursuant to paragraph (b)(1) of this rule, the State shall provide the defendant with all statements of witnesses the State anticipates calling at the trial or hearing. At this same time, the State also shall furnish the defendant with the results of New Hampshire criminal record checks for all of the State's trial or hearing witnesses other than those witnesses who are experts or law enforcement officers.

(B) Not later than ten calendar days before the final pretrial conference or, in the case of a pretrial evidentiary hearing, not less than two calendar days prior to such hearing, the defendant shall provide the State with a list of the names of the witnesses the defendant anticipates calling at the trial or hearing. Contemporaneously with the furnishing of such witness list, the defendant shall provide the State with all statements of witnesses the defendant anticipates calling at the trial or hearing. Notwithstanding the preceding sentence, this rule does not require the defendant to provide the State with copies of or access to statements of the defendant.

(C) For purposes of this rule, a “statement” of a witness means:

                               (i) a written statement signed or otherwise adopted or approved by the witness;

(ii) a stenographic, mechanical, electrical or other recording, or a transcript thereof, which is a substantially verbatim recital of an oral statement made by the witness and recorded contemporaneously with the making of such oral statement; and

(iii) the substance of an oral statement made by the witness and memorialized or summarized within any notes, reports, or other writings or recordings, except that, in the case of notes personally prepared by the attorney representing the State or the defendant at trial, such notes do not constitute a “statement” unless they have been adopted or approved by the witness or by a third person who was present when the oral statement memorialized or summarized within the notes was made.

   (5) Protection of Information not Subject to Disclosure. To the extent either party contends that a particular statement of a witness otherwise subject to discovery under this rule contains information concerning the mental impressions, theories, legal conclusions or trial or hearing strategy of counsel, or contains information that is not pertinent to the anticipated testimony of the witness on direct or cross examination, that party shall, at or before the time disclosure hereunder is required, submit to the opposing party a proposed redacted copy of the statement deleting the information which the party contends should not be disclosed, together with (A) notification that the statement or report in question has been redacted and (B) (without disclosing the contents of the redacted portions) a general statement of the basis for the redactions. If the opposing party is not satisfied with the redacted version of the statement so provided, the party claiming the right to prevent disclosure of the redacted material shall submit to the court for in camera review a complete copy of the statement at issue as well as the proposed redacted version, along with a memorandum of law detailing the grounds for nondisclosure.

    (6) Motions Seeking Additional Discovery. Subject to the provisions of paragraph (b)(8), the discovery mandated by paragraphs (b)(1), (b)(2), and (b)(4) of this rule shall be provided as a matter of course and without the need for making formal request or filing a motion for the same. No motion seeking discovery of any of the materials required to be disclosed by paragraphs (b)(1), (b)(2) or (b)(4) of this rule shall be accepted for filing by the clerk of court unless said motion contains a specific recitation of: (A) the particular discovery materials sought by the motion; (B) the efforts which the movant has made to obtain said materials from the opposing party without the need for filing a motion; and (C) the reasons, if any, given by the opposing party for refusing to provide such materials. Nonetheless, this rule does not preclude any party from filing motions to obtain additional discovery. Except with respect to witnesses or information first disclosed pursuant to paragraph (b)(4), all motions seeking additional discovery, including motions for a bill of particulars and for depositions, shall be filed within sixty calendar days if the case originated in Superior Court, or within forty-five calendar days if the case originated in Circuit Court – District Division after the defendant enters a plea of not guilty. Motions for additional discovery or depositions with respect to trial witnesses first disclosed pursuant to paragraph (b)(4) shall be filed no later than seven calendar days after such disclosure occurs.

  (7) Continuing Duty to Disclose. The parties are under a continuing obligation to supplement their discovery responses on a timely basis as additional materials covered by this rule are generated or as a party learns that discovery previously provided is incomplete, inaccurate, or misleading.

  (8) Protective and Modifying Orders. Upon a sufficient showing of good cause, the court may at any time order that discovery required hereunder be denied, restricted, or deferred, or make such other order as is appropriate. Upon motion by a party, the court may permit the party to make such showing of good cause, in whole or in part, in the form of an ex parte written submission to be reviewed by the court in camera. If the court enters an order granting relief following such an ex parte showing, the written submission made by the party shall be sealed and preserved in the records of the court to be made available to the Supreme Court in the event of an appeal.

  (9) Sanctions for Failure to Comply. If at any time during the proceedings it is brought to the attention of the court that a party has failed to comply with this rule, the court may take such action as it deems just under the circumstances, including, but not limited to: (A) ordering the party to provide the discovery not previously provided; (B) granting a continuance of the trial or hearing; (C) prohibiting the party from introducing the evidence not disclosed; and (D) assessing costs and attorney’s fees against the party or counsel who has violated the terms of this rule.

|501|4836

Rule 13. Discovery Depositions

(a) By Agreement. In criminal cases either party may take the deposition of any witness, other than the defendant, by agreement of the parties and with the assent of the witness, except as prohibited by statute.

(b) Finding by Court. The court in its discretion may permit either party to take the deposition of any witness, except the defendant, in any criminal case upon a finding by a preponderance of the evidence that such deposition is necessary:

  (1) To preserve the testimony of any witness who is unlikely to be available for trial due to illness, absence from the jurisdiction, or reluctance to cooperate; or

          (2) To ensure a fair trial, avoid surprise, or for other good cause shown.

     In determining the necessity, the court shall consider the complexity of the issues involved, other opportunities or information available to discover the information sought by the deposition, and any other special or exceptional circumstances that may exist. 

(c) Expert Witness. In any felony case either party may take a discovery deposition of any expert witness who may be called by the other party to testify at trial.    

(d) Witnesses Under Sixteen Years of Age. No party in a criminal case shall take the discovery deposition of a victim or witness who has not achieved the age of sixteen years at the time of the deposition.    

(e) Fees for Lay Witnesses. Deposition witnesses under subpoena shall be entitled to witness fees as in any official proceeding unless expressly waived by the parties with the agreement of the witness.    

(f)  Subpoena duces tecum. If a subpoena duces tecum is to be served on the deponent, the notice to the adverse party must be served before service of the subpoena, and the materials designated for production, as set out in the subpoena, must be listed in the notice or in an attachment.    

(g) Scope of Depositions. The deponent in a deposition shall ordinarily be required to answer all questions not subject to privilege or excused by the statute relating to depositions, and it is not grounds for refusal to answer a particular question that the testimony would be inadmissible at the trial if the testimony sought appears reasonably calculated to lead to the discovery of admissible evidence and does not violate any privilege.

Comment

Under paragraph (b), upon a finding of necessity by a preponderance of the evidence, the trial court may order a deposition over a party’s objection. The New Hampshire Supreme Court has addressed trial courts’ application of the necessity standard in several reported cases. See, e.g., State v. Sargent, 148 N.H. 571 (2002); State v. Howe, 145 N.H. 41 (2000); State v. Hilton, 144 N.H. 470 (1999); State v. Ellsworth, 142 N.H. 710 (1998); State v. Chick, 141 N.H. 503 (1996); State v. Rhoades, 139 N.H. 432 (1995).

|501|4841

Rule 14. Notices

(a) Circuit Court-District Division. In addition to the notice requirements in (c), affirmative defenses must be raised by written notice at least five days in advance of trial.  

(b) Superior Court. In addition to the notice requirements in (c), the following notice requirements apply in superior court. 

          (1) The State’s Notice Obligations

(A) Extended Term Sentences. Notice that an extended term of imprisonment may apply pursuant to RSA 651:6 shall be provided to the defendant in writing at least twenty-one days prior to the commencement of jury selection.

 (B) Alibi. The State may have further notice obligations under Rule 14(b)(2)(C) regarding alibi witnesses.

          (2) The Defendant’s Notice Obligations

(A) General Notice Obligations. If the defendant intends to rely upon any defense specified in the Criminal Code, the defendant shall within sixty calendar days if the case originated in superior court, or thirty calendar days if the case originated in circuit court-district division, after the entry of a plea of not guilty, or within such further time as the court may order for good cause shown, file a notice of such intention setting forth the grounds therefor with the court and the prosecution. If the defendant fails to comply with this rule, the court may exclude any testimony relating to such defense or make such other order as the interest of justice requires.

  (B) Prior Sexual Activity of Victim. Not less than forty-five days prior to the scheduled trial date, any defendant who intends to offer evidence of specific prior sexual activity of the victim with a person other than the defendant shall file a motion setting forth with specificity the reasons that due process requires the introduction of such evidence and that the probative value thereof to the defendant outweighs the prejudicial effect on the victim. If the defendant fails to file such motion, the defendant shall be precluded from relying on such evidence, except for good cause shown.

  (C) Alibi. If a defendant intends to rely upon the defense of alibi, notice shall be provided to the State in writing of such intention within sixty calendar days if the case originated in superior court, or thirty calendar days if the case originated in circuit court-district division of the plea of not guilty and a copy of such notice shall be filed with the clerk. The notice of alibi shall be signed by the defendant and shall state the specific place where the defendant claims to have been at the time of the alleged offense, and the names and addresses of the witnesses upon whom the defendant intends to rely to establish such alibi. Within ten days after the receipt of such notice of alibi from the defendant, the prosecution shall furnish the defendant, or counsel, in writing with a list of the names and addresses of the witnesses upon whom the prosecution intends to rely to establish the defendant's presence at the scene of the alleged offense. If prior to or during trial, a party learns of an additional witness whose identity, if known, should have been included in the information required by this rule, the party shall forthwith notify the other party, or counsel, of the existence and identity and address of such additional witness. Upon the failure of either party to comply with the requirements of this rule, the court may exclude the testimony of any undisclosed witness offered by such party regarding the defendant's absence from, or presence at, the scene of the alleged offense. This rule shall not limit the right of the defendant to testify concerning the alibi notwithstanding the failure to give notice. The court may waive the requirements of this rule for good cause shown.

(3) Notice of Use of Criminal Record During Trial. If a party plans to use or refer to any prior criminal record during trial, for the purpose of attacking or affecting the credibility of a party or witness, the party shall first furnish a copy of the same to the opposing party, or to counsel, and then obtain a ruling from the court as to whether the opposing party or a witness may be questioned with regard to any conviction for credibility purposes. Evidence of a conviction under this rule will not be admissible unless there is introduced a certified record of the judgment of conviction indicating that the party or witness was represented by counsel at the time of the conviction unless counsel was waived.

(c) Special Notice Requirements. The following notice requirements apply in all criminal proceedings in either circuit court-district division or superior court. 

(1) In any case in which a road or way is alleged to be a “way,” as defined in RSA 259:125, or a public highway, a party shall notify the opposing party or counsel at least ten days prior to trial if said “way” or public highway must be formally proved; otherwise, the need to formally prove said “way” or public highway will be deemed to be waived.

(2) Whenever a party intends to proffer in a criminal proceeding a certificate executed pursuant to RSA 318-B:26-a(II), notice of an intent to proffer that certificate and all reports relating to the analysis in question, including a copy of the certificate, shall be conveyed to the opposing party or parties at least twenty-five days before the proceeding begins. An opposing party who intends to object to the admission into evidence of a certificate shall give notice of objection within ten days upon receiving the adversary's notice of intent to proffer the certificate.  A failure to comply with the time limitations regarding the notice of objection required by this section shall constitute a waiver of any objection to the admission of the certificate. The time limitations set forth in this section shall not be relaxed except upon a showing of good cause.

(3) If counsel or the State has a bona fide question about the competency of a defendant to stand trial, counsel or the State shall notify the court. In addition, the court for good cause may raise the issue on its own.  When such a bona fide question arises, the court shall proceed in accordance with RSA 135:17, RSA 135:17-a, and any other applicable statutes.

Comment

Rule 14(b)(1)(A), requiring the state to provide notice that it may seek an extended term of imprisonment under RSA 651:6, derives from current Superior Court Rule 99-A and RSA 651:6(III). An extended term may be imposed upon a defendant if notice is lawfully provided and the court or jury finds that the prerequisites have been met. See Apprendi v. New Jersey, 530 U.S. 466 (2000); State v. Russell, 159 N.H. 475 (2009).  Rule 14(b)(1)(A) reflects the developments in this area of the law. Rule 14(b)(1)(A) provides that in every case in which a prosecutor may seek the imposition of an extended term of imprisonment pursuant to RSA 651:6, the prosecutor must give notice to the defendant prior to the commencement of the trial. In any case in which there exists the possibility that the court may sua sponte impose an extended term, notice must be given by the trial judge prior to the commencement of the trial. State v. Toto, 123 N.H. 619 (1983).

|501|4846

Rule 15. Pretrial Motions

 (a) Circuit Court-District Division

  (1) General.  For the general rules governing motions in Circuit Court-District Division, see Circuit Court-District Division Rule 1.8.

  (2) Motions to Suppress.

 (A) Whenever a motion to suppress evidence is filed before trial in any criminal case, the court will determine, in its discretion, whether to hear the motion in advance of trial or at the trial when the evidence is offered.

 (B) If a hearing is held in advance of trial, neither the prosecution nor the defendant shall be entitled to a further hearing by the court on the same issue at the trial. If the evidence is found to be admissible in advance of trial, it will be admitted at the trial without further hearing as to its admissibility. If the evidence is found to be inadmissible, it will not be admitted at the trial and the prosecution shall not refer to such evidence at any time thereafter.  The justice presiding at the pretrial hearing need not be disqualified from presiding at the trial. Objections to the court’s ruling in advance of trial admitting the evidence shall be noted by the court and the trial shall proceed as scheduled.

(C) All motions to suppress evidence filed in advance of trial shall be in writing and shall specifically set forth all the facts and grounds in separate numbered paragraphs upon which the motions are based. Such motions shall be filed before the commencement of the trial.  The court, in its discretion, may grant such a motion after trial commences.

(D) Upon request of any party, the court shall make sufficient findings and rulings to permit meaningful appellate review.

(3) Motions to Continue.  For rules governing motions to continue in Circuit Court-District Division, see Circuit Court-District Division Rule 1.8-A.

     (b) Superior Court

(1) Pretrial Motions. The deadline for filing all pretrial motions other than discovery related motions, including but not limited to motions for joinder or severance of offenses, motions to dismiss, motions to suppress evidence, Daubert motions, and other motions relating to the admissibility of evidence that would require a substantial pretrial hearing, shall be sixty days after entry of a plea of not guilty or fifteen days after the dispositional conference, whichever is later.

(2) Motions to Suppress. Except for good cause shown, motions to suppress shall be heard in advance of trial. If a hearing is held in advance of trial, neither the prosecution nor the defendant shall be entitled to a further hearing by the court on the same issue at the trial. If the evidence is found to be admissible in advance of trial, it will be admitted at the trial without further hearing as to its admissibility. If the evidence is found to be inadmissible on behalf of the prosecution, the prosecution shall not refer to such evidence at any time in the presence of the jury, unless otherwise ordered by the court. Objections to the court's ruling in advance of trial admitting the evidence shall be transferred on appeal after trial and not in advance of trial except in the discretion of the court in exceptional circumstances. Every motion to suppress evidence:

       (A) shall be filed in accordance with section (b)(1) of this rule;

       (B) shall be in writing and specifically set forth all the facts and grounds in separate numbered paragraphs upon which the motion is based; and

       (C) shall be signed by the defendant or counsel and verified by a separate affidavit of the defendant or such other person having knowledge of the facts upon which the affidavit is based. Upon request of any party, the court shall make sufficient findings and rulings to permit meaningful appellate review. 

(3) Motions in Limine. The parties shall file all motions in limine no less than five calendar days prior to the final pretrial conference.  For purposes of this paragraph, a motion which seeks to exclude the introduction of evidence on the ground that the manner in which such evidence was obtained was in violation of the constitution or laws of this state or any other jurisdiction shall be treated as a motion to suppress and not a motion in limine. 

        (4) Motions to Continue

       (A) Except in exceptional circumstances, all requests for continuances or postponements by the defendant in a criminal case shall be in writing signed by the defendant and counsel. The request shall include an express waiver of the defendant's right to a speedy trial as it relates to the motion. 

       (B) A court may rule on a contested motion to continue without a hearing provided that both parties have had an opportunity to inform the court of their respective positions on the motion.

       (C) The court shall rule on assented-to motions to continue expeditiously.  Notwithstanding the agreement of the parties, the court shall exercise its sound discretion in ruling on such motions.

       (D) Where a trial has been scheduled in one case prior to the scheduling of another matter in another court where an attorney or party has a conflict in date and time, the case first scheduled shall not be subject to a continuance because of the subsequently scheduled matter which is in conflict as to time and date except as follows:

         (i) A subsequently scheduled case involving trial by jury in a superior or federal district court, or argument before the Supreme Court.

         (ii) The court finds the subsequently scheduled case should take precedence due to the rights of a victim under RSA 632-A:9.

         (iii) The court finds that the subsequently scheduled case should take precedence due to a defendant’s rights to speedy trial or other constitutional rights.

         (iv) Unusual circumstances causing the respective courts to agree that an order of precedence other than the above shall take place.

     (E) Other grounds for continuance may be illness of a defendant, defense attorney, or prosecutor; want of material testimony, documents, or other essential evidence; unavoidable absence of an essential witness; and such other exceptional grounds as the court may deem to be in the interest of justice.

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Rule 16. Videotape Trial Testimony

(a) The State may move to take videotape trial testimony of any witness, including the victim, who was sixteen years of age or under at the time of the alleged offense. Any victim or other witness who was sixteen years of age or under at the time of the offense may also move to take videotape trial testimony. The court shall order videotape trial testimony if it finds by a preponderance of the evidence that:

(1) The child will suffer emotional or mental strain if required to testify in open court; or

(2) Further delay will impair the child's ability to recall and relate the facts of the alleged offense.

(b) Videotape trial testimony taken pursuant to this rule shall be conducted before the judge at such a place as ordered by the court in the presence of the prosecutors, the defendant and counsel, and such other persons as the court allows. Examination and cross-examination of the child shall proceed in the same manner as permitted at trial. Such testimony shall be admissible into evidence at trial in lieu of any other testimony by the child.

(c) Unless otherwise ordered by the court for good cause shown, no victim or witness whose testimony is taken pursuant to this section shall be required to appear or testify at trial.

(d) The attorney general or a county attorney conducting the prosecution in a criminal case may take the deposition of any witness the prosecution intends to call at the trial, if it is determined by a justice of the superior court that:

(1) The defendant in the case in which the deposition is sought has been arrested or bound over to the grand jury or has been indicted, and

(2) There is reason to believe the life or safety of the witness is endangered because of the witness’s willingness or ability to testify, and the testimony expected from the witness is material to the prosecution of the case.

Comment

Paragraphs (a) through (c) of Rule 16 derive from RSA 517:13-a, I through III. Paragraph (d) derives from RSA 517:14-a.  The New Hampshire Supreme Court has held that once a videotaped trial deposition has been taken under RSA 517:13-a, it is not per se admissible at trial; rather, the court must make a specific finding at the time of trial that the deponent continues to be “unavailable” to testify for Confrontation Clause purposes. State v. Peters, 133 N.H. 791 (1986). The status of this rule is uncertain in light of the new standards relative to confrontation clause rights as articulated by the United States Supreme Court in Crawford v. Washington, 541 U.S. 36 (2004), and its progeny.

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Rule 17. Subpoenas

(a) For Attendance of Witnesses; Form; Issuance. A subpoena for court hearings, depositions, or trials may be issued by the clerk of any court or any justice as defined by statute. A notary may issue a subpoena for depositions only. A subpoena shall comply with the form required by statute and shall command each person to whom it is directed to attend and give testimony at the time and place specified therein.

(b) For Production of Documentary Evidence and of Objects. A subpoena may also command the person to whom it is directed to produce the books, papers, documents, or other objects designated therein at the time and place specified therein.

(c) Service. Service of a subpoena shall be made by reading the subpoena to the person named or by giving that person in hand an attested copy thereof. A subpoena may be served by any person who is eighteen years of age or older.

(d) Subpoena for Out-of-State Witnesses. A subpoena for witnesses located outside the state shall be issued in accordance with RSA ch. 613.

(e) Contempt. Failure to obey a subpoena without adequate excuse may be
punishable by contempt of court.

(f) Motions to Quash. An individual may request that the court quash a subpoena on the grounds of improper service, hardship, or otherwise as provided by law. Notice of the motion must be served on all parties. The court shall notify all parties of any hearing on the motion and the decision.

Comment

Rule 17(a) derives from RSA 516:1 through 516:4. RSA 516:3 provides in pertinent part that any justice may issue writs for witnesses in any pending New Hampshire case. Under this statute, a justice of the peace may issue a subpoena for witnesses, even if the justice is an attorney for one of the parties. See Hazelton Company v. Southwick Construction Company, 105 N.H. 25 (1963).

Rule 17(b) permits a party to seek production of books, papers, documents or other objects through the service of a subpoena duces tecum.

The first sentence of paragraph (c) sets forth the appropriate methods of service and is a consistent restatement of RSA 516:5. This paragraph reflects the state’s statutory exemption from the requirement of tendering witness fees in advance of trial or hearing. State v. Tebetts, 54 N.H. 240 (1874). Paragraphs (c) and (e) extend this principle to cases in which counsel has been appointed for the defendant or in which a defendant demonstrates an inability to pay the fees and mileage allowed by law.

Rule 17(d) addresses the summoning of witnesses located outside the state and reflects the procedure for summoning out-of-state witnesses established by the Uniform Act, RSA ch. 613. The rule recognizes the current practice whereby applications to summon out-of-state witnesses may be made ex parte. A party is not required by law or rule to give notice of its intent to summon a witness regardless of whether the witness is located in the state.

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Rule 18. Venue

(a) Venue Established. Every offense shall be prosecuted in the county or judicial district in which it was committed. If part of an offense is committed in one county, and part in another, the offense may be prosecuted in either county.

(b) Change of Venue. If a court finds that a fair and impartial trial cannot be had in a county or judicial district in which the offense was committed, it may, upon the motion of the defendant, transfer the case to another county or judicial district where a fair and impartial trial may be had.

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Rule 19. Transfer of Cases

When any party files a motion in any superior court or circuit court-district division requesting the transfer of a case, or of a proceeding therein, there pending to another court, the presiding judge may, after giving notice and an opportunity for a hearing to all parties, order such transfer.

Comment

Rule 19 contemplates the transfer of whole cases, or of particular proceedings in cases, even in the absence of a related pending case or proceeding in the county to which transfer is sought. The rule provides a method whereby a party may ask a court to transfer cases for a plea as well as for trial.  This rule should be distinguished from Rule 18, which provides for change of venue to insure a fair and impartial trial.

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Rule 20. Joinder of Offenses and Defendants

(a) Joinder of Offenses

(1) Related Offenses. Two or more offenses are related if they:

(A) Are alleged to have occurred during a single criminal episode; or

(B) Constitute parts of a common scheme or plan; or

(C) Are alleged to have occurred during separate criminal episodes, but nonetheless, are logically and factually connected in a manner that does not solely demonstrate that the accused has a propensity to engage in criminal conduct.

(2) Joinder of Related Offenses for Trial. If a defendant is charged with two or more related offenses, either party may move for joinder of such charges. The trial judge shall join the charges for trial unless the trial judge determines that joinder is not in the best interests of justice.

(3) Joinder of Unrelated Offenses. Upon written motion of a defendant, or with the defendant's written consent, the trial judge may join for trial two or more charges of unrelated offenses upon a showing that failure to try the charges together would constitute harassment or unduly consume the time or resources of the parties. The trial judge shall join the charges for trial unless the trial judge determines that joinder is not in the best interest of justice.

(4) Mandatory Joinder-Limitations on Separate Trials for Multiple Offenses. Except as provided in Subsection (5), a defendant shall not be subject to separate trials for multiple offenses based on the same conduct or arising from the same criminal episode, if such offenses are known to the appropriate prosecuting officer at the time of the commencement of the first trial and are within the jurisdiction of a single court.

(5) Relief from Prejudicial Joinder. If it appears that a joinder of offenses is not in the best interests of justice, the court may upon its own motion or the motion of either party order an election of separate trials or provide whatever other relief justice may require.

(b) Joinder of Defendants. If two or more defendants are charged with related offenses as defined in Rule 20(a)(1), the court may order joinder of the trials of the defendants so long as joinder does not violate the constitutional rights or otherwise unduly prejudice any of the defendants.

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Rule 21. Trial by the Court or Jury; Right to Appeal

(a) Circuit Court-District Division

(1) Trial. A defendant shall be tried in the circuit court-district division by a judge unless otherwise provided by law. In all prosecutions for misdemeanors in which appeal for trial de novo is allowed, the court, in its discretion, may allow the defendant, upon advice of counsel, to plead not guilty and to waive the presentation of evidence by the State, and the presentation of a defense. The court shall require the prosecution to make an offer of proof. The court may find the defendant guilty and impose sentence. The defendant may appeal to the superior court. The court’s sentence is vacated pending appeal except as otherwise provided by statute.

(2) Appeal for Trial De Novo in the Superior Court. When permitted by statute or required by the New Hampshire Constitution, an appeal to the superior court may be taken by the defendant by giving notice in open court after the court pronounces sentence, or by filing written notice with the clerk of the circuit court-district division within three days of the verdict. A defendant who was prevented from appealing through mistake, accident, or misfortune, and not from neglect, may, within thirty days of the imposition of sentence by the circuit court – district division, request the superior court to allow an appeal. The motion shall set forth the reason for appealing and the cause of the delay. The court shall make such order thereon as justice may require. In the event of an appeal, the court may review the defendant’s bail status, at the request of either party. If, upon appeal to the superior court, the defendant waives the right to a jury trial, the court shall remand the matter to the circuit court-district division for imposition of the originally imposed sentence. An appeal may not be withdrawn after the record of appeal has been sent to the superior court. Such withdrawals must be made in the superior court.

(3) Appeal to Supreme Court. A person sentenced by a circuit court-district division for a class A misdemeanor may, if no appeal for a jury trial in superior court is taken, appeal therefrom to the Supreme Court at the time the sentence is declared or within thirty days after the sentence is declared. When the defendant has been convicted of a violation, or in any case where an appeal for a trial de novo in superior court is not permitted, the defendant may likewise appeal to the Supreme Court at the time the sentence is declared or within thirty days after the sentence is declared. The Supreme Court's review in such cases shall be limited to questions of law.

(4) Transcripts. Whenever a party desires to use a sound recording of circuit court-district division proceedings on appeal, a written transcript of the sound recording will be required.

(b) Superior Court

Trial shall be before a jury of twelve persons unless the defendant, on the record, waives this right. If two or more defendants are to be tried together, the trial shall be before a jury unless all defendants waive the right to a jury trial. The consent of the State is not necessary for the defendant to waive the right to trial by jury.

 

Comment

In State v. Thompson, 165 N.H. 779 (2013), the New Hampshire Supreme Court clarified the choice between appealing a misdemeanor conviction by seeking a trial de novo and appealing directly to the Supreme Court on an issue of law. The Court stated: “we reiterate that RSA 502–A:12 ‘absolutely guarantees trial by jury to persons’ convicted in circuit court of a class A misdemeanor, and dictates, as ‘the manner ... specified for exercising this right’ that the defendant may not also—either prior to, concurrently, or after his appeal to superior court—appeal that same circuit court conviction to this court. Ludwig v. Massachusetts, 427 U.S. 618, 630 (1976). In essence, RSA 502–A:12 limits a defendant to one bite at the apple. Should he choose the de novo jury trial in superior court and again be convicted there, he may of course appeal that conviction to this court.” Thompson, 165 N.H. at 788.

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Rule 22. Selection of Jury

(a) Juror Orientation. When a new panel of prospective jurors is first summoned for service the panel shall be given preliminary instructions regarding the terms and conditions of jury service, the role of the jury in the justice system, and the legal principles applicable to the cases the jurors may hear. Such instructions may be given by a justice of the superior court, by utilization of a prerecorded audio or video presentation created for this purpose, or by a combination of use of a recording and instruction by a justice. Juror orientation sessions shall be open to the public. Except during periods when an audio or video recording is being played, all proceedings involving the judge giving preliminary instructions and taking and responding to juror questions shall be conducted on the record. The record of juror orientation sessions shall be preserved for a period of ten years.

(b) Juror Questionnaires.

(1) The clerk of the superior court for each county shall maintain a list of jurors presently serving, together with electronic copies of their completed questionnaires. The clerk’s office may maintain a paper copy which may be available upon request for inspection by attorneys, non-attorney representatives and parties representing themselves.

(2) The clerk's office shall permit attorneys, non-attorney representatives and parties representing themselves who have jury cases scheduled for trial during the term to have an electronic copy of the questionnaires which have been completed by the jurors presently serving. None of these persons shall reveal any information contained in the questionnaires to any person except as may be necessary in connection with the prosecution or defense of the case or cases for which access was granted.

(3) Violation of this rule may be treated as contempt of court.


(c) Examination.

(1) The court shall instruct the panel of prospective jurors prior to jury selection as to:

(A) The nature and purpose of the selection process.

(B) The nature of the case to be presented.

(C) The specific issues for resolution.

(D) A summary of the law to be used in their consideration of the evidence.

(E) Any controversial aspects of the trial likely to invoke bias.

(2) In all cases, the court shall have the responsibility to ensure that each empanelled juror is qualified, fair, and impartial. All proceedings relating to the examination of prospective jurors shall be recorded and should be conducted in the presence of counsel, or the defendant, if self-represented.

(3) In capital cases or first degree murder cases, the court shall allow counsel to conduct individual voir dire. In all other cases, voir dire shall be conducted as set forth in RSA 500-A:12-a.

(d) Peremptory Challenges. For offenses punishable by death, the defendant shall be accorded, in addition to challenges for cause, no fewer than twenty peremptory challenges; the State shall be afforded, in addition to challenges for cause, no fewer than ten peremptory challenges. In first degree murder cases, both the State and the defendant shall be afforded, in addition to challenges for cause, no fewer than fifteen peremptory challenges. In all other criminal cases the defendant and the State shall, in addition to challenges for cause, be entitled to no fewer than three peremptory challenges. In trials involving multiple charges, the number of peremptory challenges shall be the number of challenges allowed for the most serious offense charged.

(e) Alternate Jurors. Upon request by either the State or the defendant, or sua sponte, the court may direct that alternate jurors be chosen. The number of peremptory challenges allotted to both the State and the defendant for selection of alternate jurors shall be in accordance with the following schedule:

1-3 alternates -- 1 peremptory challenge

4-6 alternates -- 2 peremptory challenges


Comment

The rule requires that all communication with the panelists be recorded, and further provides that all communications should be conducted in the presence of counsel. State v. Bailey, 127 N.H. 416 (1985); State v. Brodowski, 135 N.H. 197, 201 (1991). The rule does not absolutely foreclose the possibility that the court could communicate with potential jurors outside the presence of counsel, in recognition of the fact that, in relatively rare instances, the interest in full disclosure by jurors of sensitive, but relevant, matters may be advanced by allowing the court to inquire into those matters in private with the juror. Those communications, though, like all other communications with jurors, must be recorded.

Paragraph (d) provides that in trials adjudicating multiple charges, the number of peremptory challenges available to the parties depends on the most serious charge. Paragraph (d) does not provide for cases of multiple defendants, thus leaving intact the traditional practice in New Hampshire of allowing each defendant the full number of challenges provided by the law. State v. Doolittle, 58 N.H. 92 (1877). Paragraph (d) allows the trial court discretion with regard to control of the manner, order and timing of the parties’ peremptory challenges. State v. Farrow, 118 N. H. 296, 307 (1978); State v. Prevost, 105 N.H. 90 (1963).

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Rule 23. Juror Notes and Written Questions

(a) Note-Taking by Jurors. It is within the court's discretion to permit jurors to take notes. If the court permits note-taking, after the opening statements the court will supply each juror with a pen and notebook to be kept in the juror's possession in the court and jury rooms, and to be collected and held by the bailiff during any recess in which the jurors may leave the courthouse and during arguments and charge. After a verdict, the court will immediately destroy all notes.

(b) Questioning of Witnesses by Jurors. With the consent of all parties, the trial judge may permit jurors to pose written questions. If a trial judge decides to permit jurors to pose written questions at trial, the court shall use the following procedure:

(1) At the start of the trial, the judge will announce to the jury and counsel the decision to allow jurors to pose written questions to witnesses. At this time the judge will instruct the jurors on taking notes and, as to the scope of questioning, the procedure to be followed.

(2) Trial will proceed in the normal fashion until questioning of the first witness has been completed by both counsel.

(3) When questioning of the first witness is completed, the court will allow jurors to formulate any questions they may have, in writing. Jurors will be asked to put their seat number on the back of the question. The judge is the only person who will see the number.

(4) The bailiff will collect the anonymous questions and deliver them to the judge.

(5) At the bench, the judge and counsel will read the proposed questions. Counsel will be given the opportunity to make objections on the record to any proposed question after which the judge will decide if they are appropriate and whether, under the circumstances of the case, the judge will exercise discretion to permit the questions.

(6) Questions may be rephrased by the judge, or the judge may ask the question in a way mutually agreeable to the parties. The question should, however, attempt to obtain the information sought by the juror's original question.

(7) After all the chosen questions are answered, each counsel will have an opportunity to re-examine the witness. The party who called the witness will proceed first. The judge should allow only questions that directly pertain to questions posed by the jurors. The judge may also impose a time limit. If the judge does plan to impose a time limit, counsel should be notified and given an opportunity to object to the length outside the hearing of the jury.

(8) The judge shall instruct the jury substantially as follows.

(A) Instructions to the Jury at Beginning of Trial:

Ladies and gentlemen of the jury, I have decided to allow you to take a more active role in your mission as finders of fact. I will permit you to submit written questions to witnesses under the following arrangements.

After each witness has been examined by counsel, you will be allowed to formulate any questions you may have of the witness. Please remember that you are under no obligation to ask questions, and questions are to be directed only to the witness. The purpose of these questions is to clarify the evidence, not to explore your own legal theories or curiosities.

If you do have any questions, please write them down on a pad of paper. Do not put your name on the question, but do put your seat number on the back of the paper, and do not discuss your questions with fellow jurors. The bailiff will collect the questions, and I will then consider whether they are permitted under our rules of evidence and are relevant to the subject matter of the witness' testimony. If I determine that the question or questions may be properly asked of the witness pursuant to the law, I will ask the question of the witness myself.

It is extremely important that you understand that the rejection of a question because it is not within the rules of evidence, or because it is not relevant to the witness' testimony, is no reflection upon you. Also, if a particular question cannot be asked, you must not speculate about what the answer might have been.

(B) Instructions to the Jury when Decision Whether to Ask Questions is Made:

Ladies and gentlemen of the jury, I remind you of my earlier remarks regarding juror questions. Some questions cannot be asked in a court of law because of certain legal principles. For this reason there is the possibility that a question you have submitted has been deemed inappropriate by me and will not be asked. I alone have made this determination, and you should not be offended, or in any way prejudiced by my determination.

(C) In its discretion, the court may add additional instructions.

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Rule 24. Trial Procedure

(a) Circuit Court – District Division

(1) Opening Statements. Opening statements are not permitted in circuit court – district division trials except with permission of the court for good cause shown. When opening statements are permitted, the prosecution shall make an opening statement prior to presenting evidence. At its option in such a case, the defense may open immediately thereafter or after the prosecution has concluded its case-in-chief and before presenting defense evidence. Opening statements shall not be argumentative, and except by prior leave of the court, shall be no longer than thirty minutes.

(2) Order of Evidence. The prosecution shall present evidence first in its case-in-chief. During the case-in-chief, the defense may introduce evidence through the prosecution's witnesses. After the prosecution has rested, the defense may present evidence.

(3) Rebuttal Evidence. Evidence that is strictly rebutting may be permitted at the discretion of the court upon good cause shown.

(4) Attorneys Examining. Only one attorney for each party is permitted to examine or cross-examine each witness.

(5) Objections; Offers of Proof. When objecting or responding to an objection, counsel shall state the basis for the objection or response. Upon request, the court shall permit counsel to present offers of proof in support of the objection or response. Only the attorney examining or cross-examining a witness may raise objections or respond to objections regarding that witness.

(6) Re-Examining and Recalling Witnesses. Redirect examination shall be limited to topics covered on cross-examination except for good cause shown. Prior to being dismissed, a witness is subject to recall by either party. After being dismissed, a witness may be recalled with the court’s permission.

(7) Testimony of Witnesses. In all proceedings, the testimony of witnesses shall be given, by oath or affirmation, orally in open court, unless otherwise provided by law.

(8) Closing Argument

(A) Only one attorney shall argue for each party, except by leave of the court.

(B) After the close of evidence, the defense shall argue first and the prosecution shall argue last. In cases in which the defense of insanity has been raised and the case has been bifurcated for trial, the defense shall have the right to argue last on the issue of insanity.

(C) Before any attorney shall in closing argument read any excerpt of testimony prepared by the court reporter, the attorney shall furnish opposing counsel with a copy thereof prepared by the reporter.

(9) Motions to Dismiss; Motions for Mistrial. Motions to dismiss or for a mistrial shall be made on the record.

(10) Reopening Evidence. Prior to submission of the case to the court, a party may reopen evidence for good cause shown. After submission of the case, but before the return of a verdict, a party may reopen evidence after showing good cause, in the discretion of the court.


(b) Superior Court

(1) Opening Statements. Prior to presenting evidence, the prosecution shall make an opening statement. At its option, the defense may make an opening statement. The defense may open immediately after the prosecution’s opening statement or after the prosecution has concluded its case-in-chief and before presenting defense evidence. Opening statements shall not be argumentative, and except by prior leave of the court, shall be no longer than thirty minutes.

(2) Order of Evidence. The prosecution shall present evidence first in its case-in-chief. During the case-in-chief, the defense may introduce evidence through the prosecution's witnesses. After the prosecution has rested, the defense may present evidence.

(3) Rebuttal Evidence. Evidence that is strictly rebutting may be permitted at the discretion of the court upon good cause shown.

(4) Attorneys Examining. Only one attorney for each party is permitted to examine or cross-examine each witness.

(5) Objections; Offers of Proof. When objecting or responding to an objection before the jury, counsel shall state only the basis, without elaboration, for the objection or response. Upon request, the court shall permit counsel a reasonable opportunity, on the record and outside the hearing of the jury, to present additional grounds, argument, or offers of proof in support of the objection or response. Only the attorney examining or cross-examining a witness may raise objections or respond to objections regarding that witness.

(6) Re-Examining and Recalling Witnesses. Redirect examination shall be limited to topics covered on cross-examination except for good cause shown. Prior to being dismissed, a witness is subject to recall by either party. After being dismissed, a witness may be recalled with the court’s permission.

(7) Testimony of Witnesses. In all proceedings, the testimony of witnesses shall be given, by oath or affirmation, orally in open court, unless otherwise provided by law.

(8) Closing Argument

(A) Each party shall be limited to one hour of argument unless otherwise ordered by the court in advance. Only one attorney shall argue for each party except by leave of the court.

(B) After the close of evidence, the defense shall argue first and the prosecution shall argue last. In cases in which the defense of insanity has been raised and the case has been bifurcated for trial, the defense shall have the right to argue last on the issue of insanity.

(C) Before any attorney shall in closing argument read to the jury any excerpt of testimony prepared by the court reporter, the attorney shall furnish opposing counsel with a copy thereof prepared by the reporter.

(9) Jury Instructions

(A) At such time as the court may reasonably permit, any party may request specific jury instructions.

(B) The court shall inform counsel of its intended jury instructions prior to counsel's closing arguments. All objections to the charge shall be taken on the record before the jury retires. Opportunity shall be given to make objections outside of the hearing of the jury.

(10) Motions to Dismiss; Motions for Mistrial. Motions to dismiss or for a mistrial shall be made on the record outside the hearing of the jury.

(11) Reopening Evidence. Prior to submission of the case to the court, a party may reopen evidence for good cause shown. After submission of the case, but before the return of a verdict, a party may reopen evidence after showing good cause, in the discretion of the court.

|506|4896

Rule 25. Verdict

(a) Non-Jury Cases. The court shall return its verdict within a reasonable time after trial.

(b) Jury Cases. The verdict shall be unanimous and shall be returned by the jury in open court.

(c) Poll of Jury. When a verdict is returned and before it is recorded the jury may be polled at the request of any party or upon the court's own motion. If upon the poll there is not unanimous concurrence, the jury may be directed to retire for further deliberations or may be discharged.

(d) Bail. After a verdict, either party may request a change in bail as provided by law.

(e) Motion to Set Aside Verdict. A motion to set aside a jury verdict or a non-jury verdict announced on the record in open court shall be filed within ten days after its rendition, and a motion to set aside any other verdict or decree shall be filed within ten days from the date on the clerk’s written notice with respect to same, which shall be mailed by the clerk on the date of the notice. In each case, the motion shall fully state all reasons and arguments relied upon.

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Rule 26. Presence of Counsel

After a case has been submitted to the jury and the jury has retired for deliberations, counsel shall not leave the courthouse without permission of the court. The court may permit counsel to leave the courthouse upon appropriate conditions. If counsel is absent from the courthouse without permission when a jury requests additional instructions, such absence shall constitute a waiver of the right to be present during instructions given in response to the request.


Comment

As Rule 26 reflects, if counsel has left the courthouse with the court’s permission, counsel has not waived the right to be present when an instruction is to be given in response to a jury’s question.

|506|4906

Rule 27. Disability of Judge

If by reason of death or serious disability the judge before whom a jury trial has commenced is unable to proceed with the trial or post-verdict duties, another judge may perform those duties. If a manifest necessity requires it, a new trial shall be ordered.

|506|4911

Rule 28. Communication with Jurors

(a) Before and During Trial. Before and during trial, no attorney, party or witness shall personally or through any agent converse or otherwise communicate with any juror or any member of the venire from which the jury will be selected. During trial, when the judge must communicate with any juror or any member of the venire before the jury is excused, the communication shall be on the record.

(b) Post Trial. For thirty days after discharge of the jury venire on which a juror has served, no attorney or party shall personally or through an agent interview, examine or question any juror or family member with respect to the trial, verdict or deliberations. At no time, however, shall an attorney, party or any person acting for either of them ask questions of or make comments to a juror that are calculated to harass or embarrass the juror or to influence the juror’s actions in future jury service.

(c) Protective Order. Upon application of any person the court may issue appropriate protective orders and/or sanctions as justice may require.

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Rule 29. Sentencing Procedures

(a) General

(1) Following a finding or verdict of guilty the court shall hold a sentencing hearing and impose sentence without unreasonable delay. Sentencing hearings in violation and misdemeanor cases shall take place immediately following the finding or verdict of guilty unless the court orders otherwise. In felony cases, the sentencing hearing shall be scheduled for a later date unless the court orders otherwise.

(2) At all sentencing hearings the defendant has a right to be represented by retained counsel, and in class A misdemeanor and felony cases, has the right to be represented by appointed counsel if unable to afford counsel. The defendant also has the right to present witnesses and evidence, and to testify with regard to the sentence to be imposed. As provided in New Hampshire Rule of Evidence 1101(d)(3), the Rules of Evidence do not apply at the hearing.


(b) Pre-Sentence Report

(1) Upon a judgment of conviction or the filing of a notice of intent to plead guilty, the court may order the department of corrections to conduct a pre-sentence investigation pursuant to RSA 651:4.

(2) The contents of and any attachments to the pre-sentence report shall be confidential and shall not be disclosed to anyone except as required by statute or ordered by the court. Either party may refer to the contents, recommendations and attachments of the pre-sentence report in any sentence-related hearing, except where the court has ordered otherwise on the motion of a party or sua sponte. The defendant and the State shall be provided a reasonable opportunity to review the contents of the pre-sentence report and any attachments before sentencing.

(c) Sentencing Hearing

(1) Both the defendant and the State will be afforded the opportunity to address the court, call witnesses, and present evidence relevant to sentencing. The court shall review the pre-sentence report and afford the defendant and the State a reasonable opportunity to challenge, rebut or correct factual material contained within the report that might bear on the sentence.

(2) The victim or next of kin of the victim shall be afforded the opportunity, where provided by law, to address the court prior to the imposition of sentence. No person who gives a victim impact statement shall be subject to questioning by counsel. The prosecutor shall be responsible for informing the victim or next of kin of the right to so address the court.

(d) Extended Term. Prior to imposition of an extended term of imprisonment, the court shall hold a hearing to determine if the jury or the court has made the necessary factual findings.

(e) Monetary Assessments

(1) Fines, restitution or penalty assessments (hereinafter collectively referred to as “assessments”) imposed by the court shall be due and payable on the date the sentence is imposed.  Where a defendant indicates an inability to pay forthwith, the defendant shall complete a statement of resources, under oath, prior to leaving the courthouse.  The court will then determine whether the defendant has the financial ability to pay the assessment.

(2) The determination of a defendant’s financial ability to pay the assessment shall be made by comparing the defendant’s assets and income with the amount of the assessment. The defendant’s assets shall include all real and personal property owned in any manner by the defendant, unless exempt from execution, levy, attachment, garnishment, or other legal process under any state or federal law. The defendant’s income shall include all income, whether earned or not, from any source, unless exempt from execution, levy, attachment, garnishment, or other legal process under any state or federal law, and shall be reduced only by the amount of expenses which are reasonably necessary for the maintenance of the defendant and his dependents and by the amount of defendant’s anticipated or current obligation to repay the Office of Cost Containment for the cost of appointed counsel.  As a court may do when considering an obligor’s ability to pay child support, alimony, or other indebtedness, the court also may consider: (1) spousal, partner and family income or assets to the extent they are available to the defendant; (2) the defendant’s ability to access credit; and (3) the diligence exercised by the defendant in pursuing employment or other means of satisfying his financial obligations. 

(3) In any case where the court finds that the defendant is unable to pay the assessment either on the date the sentence is imposed or later, the court may, if otherwise permitted by law: (i) defer or suspend payment of all or part of the assessment or order periodic payment; or (ii) allow the defendant to perform community service, pursuant to a plan submitted to and approved by the court.  In any such deferral or order of periodic payment, the court shall, pursuant to RSA 490:26-a, II-a, include a $25.00 fee to be added to the assessment.  Every hour of verified community service shall be applied against a fine at the rate of $15.00 an hour.  A community service plan approved under this paragraph shall take into account the defendant’s circumstances including but not limited to age, disability, health, employment, and access to child-care and transportation.

(4) Conduct which the court finds is a willful failure to pay an assessment or to perform community service as ordered may be punishable as civil contempt of court subject to the provisions of RSA 618:9.  “Willful failure to pay” means a defendant has intentionally chosen not to pay the assessment when he has had the ability to do so.   Upon a showing satisfactory to the court that a defendant has failed to pay an assessment ordered by the court, the burden of proof shall be upon the defendant to establish by a preponderance of the evidence that he or she does not have the ability to pay and that he or she has exercised reasonable diligence in pursuing the means to pay. 

(5) No defendant shall be incarcerated for nonpayment of an assessment or non-performance of community service unless the Court, having conducted an ability-to-pay or ability-to-perform hearing which includes making specific inquiry of the defendant concerning his financial circumstances and his reasons for nonpayment or non-performance, concludes that the defendant willfully failed to pay the assessment or perform community service.

(6)  Prior to conducting an ability to pay or ability to perform hearing at which incarceration of the defendant for civil contempt may be imposed if the court finds that the defendant has willfully failed to pay an assessment or perform community service, the court shall provide the defendant with a financial affidavit or financial statement signed under oath and direct that the defendant complete the affidavit or statement and provide it to the court at the hearing.  The court also shall provide reasonable advance notice to the defendant of the following:

(a) that, as a result of the hearing, the defendant may be immediately incarcerated if the court finds that the defendant has willfully failed to comply with the court’s prior order(s) to pay an assessment or perform community service;

(b) that the issues at the hearing will be whether the defendant has the ability to pay the assessment or perform the community service previously ordered and has willfully failed to do so; that the defendant has the burden of proof with respect to these issues; and that the defendant should be prepared at the hearing to provide testimony and answer questions, present witnesses, and furnish documentation or other information bearing on the issues of his financial circumstances and ability to pay the assessment or perform the community service.  

(7)  The court may appoint counsel at state expense to represent an indigent defendant at an ability to pay or perform hearing held pursuant to this rule in a case in which the court finds that the issues are of sufficient complexity or that other special circumstances exist such that it would be fundamentally unfair to require the defendant to proceed without counsel.

(8) In any case where the court is considering the issuance of an order of commitment for willful nonpayment of an assessment, it may also consider whether an order of periodic payments is appropriate under the circumstances as well as the appropriateness of the options set forth in paragraph (3) above. The court shall also make findings in writing or on the record of the facts upon which the court has made its determination that the defendant has willfully failed to pay the assessment or perform community service as ordered. 

(f) Probation. The terms and conditions of probation, unless otherwise prescribed, shall be as follows. The probationer shall:

(1) Report to the probation/parole officer at such times and places as directed, comply with the probation/parole officer's instructions, and respond truthfully to all inquiries from the probation/parole officer;

(2) Comply with all orders of the court, board of parole or probation/parole officer, including any order for the payment of money;

(3) Obtain the probation/parole officer's permission before changing residence or employment or traveling out of state;

(4) Notify the probation/parole officer immediately of any arrest, summons or questioning by a law enforcement officer;

(5) Diligently seek and maintain lawful employment, notify probationer's employer of probationer’s legal status, and support dependents to the best of probationer’s ability;

(6) Not receive, possess, control or transport any weapon, explosive or firearm, or simulated weapon, explosive, or firearm;

(7) Be of good conduct and obey all laws;

(8) Submit to reasonable searches of probationer’s person, property, and possessions, as requested by the probation/parole officer, and permit the probation/parole officer to visit probationer’s residence at reasonable times for the purpose of examination and inspection in the enforcement of the conditions of probation or parole;

(9) Not associate with any person having a criminal record or with other individuals as directed by the probation/parole officer unless specifically authorized to do so by the probation/parole officer;

(10) Not indulge in the illegal use, sale, possession, distribution, or transportation, or be in the presence, of controlled drugs, or use alcoholic beverages to excess;

(11) Agree to waive extradition to New Hampshire from any state in the United States or any other place and agree to return to New Hampshire if directed by the probation/parole officer; and

(12) Comply with such of the following, or any other, special conditions as may be imposed by the court, the parole board or the probation/parole officer:

(A) Participate regularly in Alcoholics Anonymous to the satisfaction of the probation/parole officer;

(B) Secure written permission from the probation/parole officer prior to purchasing and/or operating a motor vehicle;

(C) Participate in and satisfactorily complete a specific designated program;

(D) Enroll and participate in mental health counseling on a regular basis to the satisfaction of the probation/parole officer;

(E) Not be in the unsupervised company of minors, or minors of a specific gender, at any time;

(F) Not leave the county without permission of the probation/parole officer;

(G) Refrain totally from the use of alcoholic beverages;

(H) Submit to breath, blood or urine testing for abuse substances at the direction of the probation/parole officer; and

(I) Comply with designated house arrest provisions.

(g) Conditional Discharge. A defendant may be sentenced to a period of conditional discharge as provided in RSA 651:2, VI.

(h) Subdivision of Suspended Sentences. Whenever a sentence, or any part thereof, is suspended, the court may thereafter subdivide said suspended sentence into two or more parts, and the defendant may be required to serve any part thereof, with the balance remaining suspended, until further order of the court, and the defendant may be required to serve the sentence in installments or by intermittent incarceration.

(i) Correction of Sentence. The court has the discretion to correct an illegal or illegally imposed sentence as provided by law.

(j) Reduction, Suspension or Amendment of Sentence. A party may seek reduction, suspension or amendment of a sentence as provided by law. Whenever any petition to suspend, amend, reduce or otherwise change the custody status of any person incarcerated in the New Hampshire state prison is filed with the court, a copy thereof shall be forwarded by counsel for the defendant to the prosecutor and the warden of the state prison. In the event that a self-represented defendant files such petition, the clerk shall forward a copy thereof to the prosecutor and the warden of the state prison. The prosecutor and the warden of the state prison shall have a period of thirty days in which to file a response thereto with copies thereof furnished to petitioner, or petitioner's counsel, if represented. This rule does not apply to petitions for habeas corpus. The victim of the crime or next of kin shall have an opportunity to address the court prior to the court reaching its decision where provided by law. The prosecutor shall be responsible for informing the victim or next of kin of the right to so address the court.

(k) Sentence Review

(1) (A) After notice and within thirty (30) days of imposition of a New Hampshire State Prison sentence by the Superior Court, the defendant may apply to have his or her sentence reviewed by the Sentence Review Division. Defendant's counsel has the duty to protect the defendant's interest by insuring that the defendant understands that:

(i) the defendant has a right to a review of any stand committed, deferred, or suspended state prison sentence imposed which is not mandated by law; and

(ii) sentence review may be sought within 30 days of imposition of the sentence but not thereafter absent good cause shown; and

(iii) if the defendant requests sentence review, the sentence may be increased, decreased, modified or affirmed.

(B) After notice and within thirty (30) days of imposition of a New Hampshire State Prison sentence by the Superior Court, the State may apply to have the sentence reviewed by the Sentence Review Division.

(2) Only state prison sentences, whether stand committed, suspended or deferred, are subject to sentence review. Sentence review is not available for those sentences mandated by statute.

(3) In any case in which a sentence is imposed that would allow a party to apply for review of the sentence by the Sentence Review Division, the Court, at the time of sentencing, shall provide the defendant and the prosecutor with an application for sentence review. The application shall state, and the parties shall be orally notified, that:

(A) the parties have a statutory right to a review of the sentence; and

(B) the Sentence Review Division may increase, decrease, modify or affirm any sentence entered by the Superior Court.

(4) Application for sentence review may be made by filing a completed application form with either the Secretary of the Sentence Review Division or with the Clerk of the sentencing court. Attorneys must file the application electronically.

(5) When application for sentence review is made directly to the Clerk of the Superior Court, the Clerk shall immediately mail a copy of the application to the Secretary of the Sentence Review Division, along with notice of the date such application was filed with the Clerk.

(6) The Secretary of the Sentence Review Division shall keep a record log in which shall be recorded the date the completed application for review was filed with the Secretary or Clerk, whichever was earlier. The Sentence Review Division record log shall be open for public inspection.

(7) Any application for sentence review that is filed after thirty (30) days from the date of sentencing shall be rejected and returned with notice to all parties that the application is denied as untimely. There is no right to appeal the return of untimely requests for sentence review, except that the Sentence Review Division may, for good cause shown, decide, by concurrence of at least two members, to consider the merits of an untimely request for sentence review.

(8) (A) Copies of the application for review of sentence filed by the defendant shall be forwarded by the Secretary of the Sentence Review Division to the following persons:

(i) The sentencing judge;

(ii) The County Attorney or Attorney General;

(iii) The defendant's attorney of record; and,

(iv) The Chief Justice of the Superior Court.

(B) Copies of the application for review of sentence filed by the State shall be forwarded by the Secretary of the Sentence Review Division to the following persons:

(i) The sentencing judge;

(ii) The defendant's attorney of record;

(iii) The defendant; and

(iv) The Chief Justice of the Superior Court

(9) (A) The Secretary shall contact the Clerk of the Sentencing court to arrange for production to the Sentence Review Division of a transcript of the sentencing hearing and of the materials set out in Sentence Review Division Rule 16.

(B) The Secretary shall provide copies of the application, the transcript of the sentencing hearing, and all such materials to the members of the Sentence Review Division.

(10) Each member of the Sentence Review Division shall review the application, transcript of the sentencing hearing, and such other materials as set out in Sentence Review Division Rule 16 and shall then inform the Secretary whether the member is requesting a hearing. Should none of the three members request a hearing, the Secretary shall issue a notice to the persons set out in Sentence Review Division Rule 8 that the sentence is affirmed without hearing. Should any member request a hearing, the Secretary shall issue a notice of hearing to the persons set out in Sentence Review Division Rule 8. Hearings before the Sentence Review Division shall normally be in accordance with the order the applications were recorded in the Sentence Review Division record log.

(11) In those instances where the Sentence Review Division has scheduled a hearing on an application, on his or her own initiative or at the request of the Sentence Review Division, the sentencing judge may provide the Sentence Review Division with a statement of reasons for imposing the sentence under review. If submitted, such statement shall be furnished to the parties prior to the date of any hearing before the Sentence Review Division.

(12) The filing of an application for sentence review does not stay execution of the sentence as originally imposed.

(13) Sentences may be reviewed that were imposed prior to the effective date of RSA 651:58 (August 5, 1975) and for those sentences the thirty (30) day rule will not apply. Sentences may be reviewed even if the sentence to the State Prison has been suspended or deferred or if the time to be served is less than one year because of credit for pre-sentence confinement.

(14) (A) Review may be sought for any state prison sentence resulting from a finding of guilty following trial, or as a result of entering a plea of guilty, or a finding of guilty following a plea of nolo contendere, where there is no agreement between the State and the defendant limiting the sentence to less than the maximum which could be imposed under the law (a so-called "naked plea").

(B) Sentences may also be reviewed following a re-sentencing if the original sentence has been set aside by judicial process other than by the Sentence Review Division.

(C) Review may not be sought for any sentence submitted to the sentencing judge where there is an agreement between the State and the defendant as to the sentence to be imposed in exchange for a plea (a so-called "negotiated plea"), or where there is an agreement between the State and the defendant limiting the sentence to less than the maximum which could be imposed under the law (a so-called "capped plea.") Before accepting any negotiated or capped plea, the sentencing judge shall confirm in writing or on the record the understanding of the parties that entry into such plea agreements results in waiver of the right to sentence review.

(15) Upon hearing, the Division can act in any of the following ways:

(A) It may increase the sentence imposed by the sentencing judge;

(B) It may decrease the sentence imposed by the sentencing judge;

(C) It may otherwise modify the sentence; or,

(D) It may affirm the sentence.

(16) The Sentence Review Division will only consider matters that are a part of the record of sentencing. In addition to a transcript of the sentencing hearing, the Division will require the production of the following material if it was considered by the sentencing judge in the imposition of sentence:

(A) Presentence reports;

(B) Any other records, documents or exhibits preserved in the record of the sentencing hearing.

(17) The Sentence Review Division will not consider any matter or development subsequent to the imposition of the sentence. Matters not to be considered include:

(A) Institutional adjustment;

(B) New social information;

(C) Institutional disciplinary actions pending or taken against the defendant;

(D) Work reports; or

(E) Inmate release plans.

(18) If a hearing is scheduled, the defendant shall have the right to appear in person or by videoconference and to be represented by counsel. Counsel should ordinarily be trial counsel below. Court appointed counsel shall be reimbursed as provided by law. No sentence may be increased, decreased, or modified without the opportunity for the defendant to appear and be heard, in person or by videoconference, and the opportunity to be represented by counsel. The State may be represented by the County Attorney of the county wherein the sentence was imposed or by the Attorney General.

(19) If the Sentence Review Division orders a different sentence, the Division shall issue a written order confirming the new sentence as modified.

(20) Any time served prior to increase, decrease, or modification of the sentence shall be counted in calculating the sentence as increased, decreased, or modified.

(21) The decision of the Sentence Review Division is final. The reasons for any change of sentence will be stated in a written order. In reaching its decision, the Sentence Review Division will give consideration, but is not limited to, the following objectives of the New Hampshire Criminal Code sanctions:

(A) Isolation of the offender from society to prevent criminal conduct during the period of confinement;

(B) Rehabilitation of the convicted offender into a non-criminal member of society;

(C) Deterrence of other members of the community who might have tendencies toward criminal conduct similar to those of the offender;

(D) Deterrence of the defendant, himself or herself;

(E) Reaffirmation of social norms for the purpose of maintaining respect for the norms themselves;

(F) The individual characteristics of the defendant prior to the imposition of the sentence, except that information, which does not affirmatively appear on the record or in the judge's statement of reasons for the sentence, shall be excluded;

(G) The facts and circumstances of the crime or crimes which affirmatively appear in the record of the proceedings; and

(H) Statistical information concerning the sentences imposed for the same crime committed by other individuals in the State of New Hampshire.

(22) The Secretary shall send the final order to the Clerk of Court for the court in which sentence was imposed, the sentencing judge, defendant, defense counsel, the Department of Corrections, and the County Attorney or the Attorney General's office.

(23) The scope of review of the Sentence Review Division shall be:

(A) The excessiveness or leniency of the sentence having regard for the nature of the offense, the protection of the public interest and safety, and the character of the offender; and

(B) The manner in which the sentence was imposed, including the sufficiency and accuracy of the information before the sentencing court.

(24) Unless, after hearing, at least two members of the Sentence Review Division concur in increasing, decreasing, or otherwise modifying a sentence, the sentence imposed by the sentencing judge shall stand.

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Rule 30. Probation Violation

(a) Arrest. When a probation violation is lodged against a defendant, the violation of probation and supporting statement of facts signed under oath shall be filed electronically in the court with jurisdiction over the defendant without unreasonable delay. A person charged with a probation violation is entitled to counsel and the appointment of counsel if deemed eligible at all stages of the proceeding.

(b) Bail. Unless prohibited by statute, a person charged with a probation violation shall be entitled to bail.

(1) If the probationer is incarcerated on a warrant issued by the court, the court will hear and set bail within 72 hours from the time of arrest, excluding weekends and holidays.

(2) If the probationer is incarcerated as a result of arrest for violating the terms of probation pursuant to RSA 504-A:4(1), the court will schedule a bail hearing upon motion. A preliminary hearing, conducted by the department of corrections, shall be held within seventy-two hours of the time of arrest, excluding weekends and holidays, pursuant to RSA 504-A:5.

(c) Hearing. A final, public, violation hearing before a judge shall be held without unreasonable delay. The probationer shall be afforded:

(1) Prior written notice of the conduct that triggers the filing of the violation;

(2) Prior disclosure to the probationer of the evidence that will be offered to prove the violation and all related exculpatory evidence;

(3) The opportunity to be heard in person and to present witnesses and evidence;

(4) The right to see, hear and question all witnesses;

(5) The right to compulsory process; and

(6) If a finding of chargeable is entered, a statement on the record by the court indicating in substance the evidence relied upon in reaching its determination.

(d) Burden of Proof. The burden of proof by a preponderance of the evidence with respect to all elements of the charge shall be upon the State.

(e) Hearing on Plea of Chargeable. Before a plea of chargeable is accepted, the court shall address the defendant and determine on the record that:

(1) There is a factual basis for the plea to the violation;

(2) The defendant understands the violation charged and the factual basis of it;

(3) The defendant’s plea is knowing, intelligent and voluntary;

(4) The defendant’s plea is not the result of any unlawful force, threats or promises; and that

(5) The defendant understands and waives the statutory and constitutional rights as set forth in the Acknowledgement and Waiver of Rights for Probation Violations form.

(f) Sentencing. At all sentencing hearings on probation violations, the defendant has the right to present witnesses and evidence, and to testify with regard to the sentence to be imposed. The court may impose any sentence that could have been imposed by the original sentencing judge for the crime which is the subject of the probation term. If the plea is negotiated, the defendant shall have the right to withdraw the plea of chargeable and go to hearing if the court intends to exceed the sentence agreed to by the parties.


Comment

In current practice, the term “chargeable” is synonymous with an admission to the violation of probation.

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Rule 31. Annulments

(a) General. As provided by law, a defendant who has been convicted of a crime capable of being annulled may apply to the court in which the defendant was convicted to annul the conviction. The same procedure may be followed to annul a record of arrest when a charge has been nol prossed, dismissed, the defendant was not prosecuted or has been found not guilty. It is within the discretion of the court to grant a petition for annulment. The record of an annulled conviction or arrest shall be sealed to the extent provided by RSA 651:5.

(b) Application. The application shall identify: the defendant; the offense charged; the sentence imposed; and the docket number of the case. Each application shall specify in detail the facts upon which the applicant relies in requesting the annulment. The application shall be signed and sworn to by the defendant. A filing fee shall be assessed which may be waived by the court when, upon review of an executed affidavit of assets and liabilities, the court determines that the applicant is indigent or has been found not guilty, or the case was dismissed or not prosecuted.

(c) Notice. The clerk shall, within 7 days, issue an order of notice directed to the appropriate parties. The parties, within 30 days of the notice date, are permitted to respond with their position. The Clerk shall send a copy of the application to the Department of Corrections for preparation of a report as required by statute.

(d) Hearing. The court may grant or deny an annulment without a hearing. The court shall hold a hearing on the petition to annul if requested by the petitioner. The court may hold a hearing if requested by the state. Any petition for annulment which does not meet the requirements as set forth by statute shall be dismissed without a hearing but without prejudice to the defendant’s right to re-apply as permitted by law.

(e) Order of Annulment. Upon issuance of an order of annulment in superior court, in a case that originated in circuit court-district division, the clerk of the superior court shall transmit a copy of the order of annulment to the circuit court-district division. The circuit court-district division, upon receipt of the order, shall annul the record of the charge or charges which were the subject of the superior court order of annulment.

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Rule 32. Bail Pending Appeal

(a) Bail Permitted. When there is an appeal after a conviction in either circuit court-district division or superior court, or when either party appeals prior to or during trial, the trial court may authorize the defendant’s release on bail pending the appeal as provided by statute.

(b) Bail Denied. In any case where release is denied pending appeal, the presiding judge shall provide for the record the reasons for such denial.

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Rule 33. Transcripts

In any appeal, the appealing party shall make transcript requests in accordance with New Hampshire Supreme Court Rule 15 and all other applicable rules of the Supreme Court.

|516|4941

Rule 34. Deadline for Criminal Appeals to the Supreme Court

(a) Defense Appeals. The time for filing a notice of appeal shall be as set forth in Supreme Court Rule 7.

(b) State Appeals. The time for filing an appeal on behalf of the State, as well as the permissible grounds for filing such an appeal, shall be as otherwise provided by law.

 

Comment

The Supreme Court has ruled upon the date from which to calculate the filing deadline for the Notice of Appeal. See State v. Mottola, 166 N.H. 173 (2014) (clarifying that thirty-day deadline for filing Notice of Appeal begins to run on date of sentencing, not on date of issuance of mittimus).

Paragraph (b) of this rule refers to State’s appeals. RSA 606:10 governs State’s appeals. With regard to the timing of State appeals, the Supreme Court has held that the provisions of Supreme Court Rules 7 through 9 apply to State appeals as well as to defense appeals. See State v. Dukette, 145 N.H. 226 (2000).
 

|516|4946

Rule 35. Filings with the Court

(a) All pleadings and forms that are not electronically filed shall be upon 8 1/2 x 11 inch paper and shall be either typewritten or hand-printed and double-spaced so that they are clearly legible. No pleading, motion, objection, or the like, which is contained in a letter, will be accepted by the clerk, or acted on by the court.

(b) In any Circuit Court - District Division case in which all parties are represented by lawyers, all parties' counsel may agree that pleadings filed and communications addressed to the court may be furnished to all other counsel by email. An agreement may be filed with the court by stipulation. Such agreement shall list the email address(es) at which counsel agree to be served. The email header shall include the caption of the case and its docket number. Pleadings and communications furnished in accordance with this rule shall be attached to the email in .PDF file format. Documents so furnished may have on their signature lines a copy of counsel's signature, a facsimile thereof, “/s/ [counsel's name]” as used in the federal ECF system, or similar notation indicating the document was signed.

(c) A party filing a pleading shall certify that a copy of the pleading and all attachments was mailed first class or delivered to all opposing counsel and any guardian ad litem. This rule shall not apply to ex parte pleadings and shall not require a party to provide duplicate copies of documents already in another party’s possession.

(d) A no contact order in a domestic violence, stalking, or similar matter shall not prevent either party from filing appearances, motions, and other appropriate pleadings. At the request of the party filing the pleading, the court shall forward a copy of the pleading to the party or counsel specified in the request. Furthermore, the no contact provisions shall not be deemed to prevent contact between counsel when both parties are represented.

(e) For the purpose of compliance with any time deadlines or statutes of limitation, the terms “filing” and “entry” shall have the same meaning and shall be used interchangeably. Whenever any document is received by the court and time-stamped as received, or the receipt is entered on the court’s database, the earlier of the two shall be accepted as the filing date.

(f) In computing any period of time prescribed or allowed by these rules, by order of court, or by applicable law, the day of the act, event, or default after which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday, Sunday, or a legal holiday, in which event the period shall extend until the end of the next day that is not a Saturday, Sunday, or a legal holiday as specified in RSA chapter 288.

(g) All pleadings and the appearance and withdrawal of counsel shall be signed by the attorney of record or the attorney’s associate or by a self-represented party. Names, addresses, New Hampshire Bar Association member identification numbers, and telephone numbers shall be typed or stamped beneath all signatures on papers to be filed or served. No attorney or self-represented party will be heard until an appearance is so entered.

(h) By signing a pleading, an attorney certifies that the attorney has read the pleading, that to the best of the attorney’s knowledge, information and belief there is a good ground to support it, and that it is not interposed for delay.

(i)  Requirements Relating to Motions Filed in Superior Court.

(1)  The court will not hear any motion grounded upon facts, unless they are verified by affidavit, or are apparent from the record or from the papers on file in the case, or are agreed to and stated in writing signed by the parties or their attorneys; and the same rule will be applied as to all facts relied on in opposing any motion. Any party filing a motion shall certify to the court that a good faith attempt was made to obtain concurrence in the relief sought, except in the case of dispositive motions, motions for contempt or sanctions, or comparable motions where it can be reasonably assumed that the party or counsel will be unable to obtain concurrence. Any answer or objection to a motion must be filed within ten days of filing of the motion. Failure to object shall not, in and of itself, be grounds for granting a motion.

(2)  All motions must contain the word “motion” in the title.  Filers shall not combine multiple motions seeking separate and distinct relief into a single filing.  Separate motions must be filed.  Objections to pending motions and affirmative motions for relief shall not be combined in one filing.

 

Comment

The provisions of Rule 35 are consistent with the General Rules of the Circuit Court of the State of New Hampshire – District Division, as set forth in Rules1.1A (“Computation and Extension of Time”), 1.3 (“Attorneys”) and 1.3-A (“Pleadings – Copies to all parties”).

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Rule 36. Conduct of Attorneys

(a) Lawyers shall stand when addressing the court or examining a witness. The rule may be waived if the lawyer is physically unable to stand or for other good cause.

(b) An attorney may not participate as an advocate in a trial in which the attorney has testified, unless permitted to do so by the Rules of Professional Conduct.

(c) No lawyer shall be compelled to testify in any case in which the lawyer represents a party unless the lawyer has been notified in writing at least thirty days in advance of trial in superior court and at least five days in advance of trial in circuit court-district division. The attorney shall be afforded an opportunity to be heard prior to the start of trial.

 

Comment

The provisions of Rule 36 are consistent with the General Rules of the Circuit Court of the State of New Hampshire – District Division, as set forth in Rule 1.3 (“Attorneys”).

The issuance of a subpoena to an attorney of record is a matter also addressed by the Rules of Professional Conduct. N.H. R. of Prof. Conduct 4.5; In re Grand Jury Matters, 751 F.2d 13 (1st Cir. 1984).

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Rule 37. Suspension of Rules; Violations of the Rules of Court

(a) When allowed by law and as justice may require, the court may waive the application of any rule.

(b) Upon the violation of any rule of court, the court may take such action as justice may require. Such action may include, without limitation, the imposition of monetary sanctions against either counsel or a party, which may include fines to be paid to the court, and reasonable attorney's fees and costs to be paid to the opposing party.

(c) The Court may assess reasonable costs, including reasonable counsel fees, against any party whose frivolous or unreasonable conduct makes necessary the filing of or hearing on any motion.


Comment

The provisions of Rule 37 are consistent with the General Rules of the Circuit Court of the State of New Hampshire – District Division, as set forth in Rule 1.1 (“Relief from failure to comply”) and 1.2 (“Violation of rules”).

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Rule 38. Plain Error

Plain error that affects substantial rights may be considered even though it was not brought to the court's attention.

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Rule 39. Assignment to Specific Judges

(a) Circuit Court-District Division

(1) Special Assignments. The administrative judge of the circuit court may specially assign a case to a specific judge.

(2) Motion for Special Assignment. If an attorney of record seeks a special assignment to a judge, a motion for special assignment shall be filed. The motion shall set forth the grounds justifying the request and shall state whether or not counsel of record join in or object to the motion. Thereafter, the administrative judge of the circuit court shall rule on the motion.

(b) Superior Court

(1) Complex Cases. Those cases that are of a complex nature, or are potentially of prolonged duration, may be assigned to a specific judge by the chief justice of the superior court sua sponte, or upon a motion for special assignment filed by any party. A party seeking special assignment shall file a motion setting forth the grounds justifying the request and shall state whether or not counsel of record join in or object to the motion. Thereafter, the chief justice shall rule on the motion.

(2) Assigned Docketing. In the event that the case is brought in a superior court which uses a system of assigned docketing, the clerk shall assign the case to a particular judge.

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Rule 40. Recusal

All grounds for recusal that are known or should reasonably be known prior to trial or hearing shall be incorporated in a written motion for recusal and filed promptly with the court. Grounds for recusal that first become apparent at the time of or during the hearing shall be immediately brought to the attention of the judge. Failure to raise a ground for recusal shall constitute a waiver as specified herein of the right to request recusal on such ground. If a record of the proceedings is not available, the trial judge shall make a record of the request, the court's findings, and its order. The court's ruling on the motion shall issue promptly. If the motion is denied, the court’s ruling shall be supported by findings of fact with respect to the allegations contained in the motion.


Comment

 

Rule 40 is consistent with the General Rules of the Circuit Court of the State of New Hampshire – District Division, as set forth in Rule 1.8-A(H).

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Rule 41. Immunity

(a) Whenever a witness refuses, on the basis of the privilege against self-incrimination, to testify or provide information in a proceeding before, or ancillary to, a Circuit Court-District Division or Superior Court or a Grand Jury, a prosecutor may, with the prior written approval of the Attorney General or County Attorney for the jurisdiction where offenses are alleged to have occurred, request an order from the court requiring such individual to give testimony or provide other information that the individual refuses to give or provide on the basis of the privilege against self-incrimination, when in the judgment of the Attorney General or County Attorney:

(1) The testimony or other information from such individual may be necessary to the public interest; and

(2) Such individual has refused or is likely to refuse to testify or provide other information on the basis of the privilege against self-incrimination.

(b) Whenever the court communicates on the record to the witness an order issued under paragraph (a), the witness may not refuse to comply with the order on the basis of the privilege against self-incrimination. No testimony or other information compelled under the order, or any information directly or indirectly derived from such testimony or other information, may be used against the witness in any criminal case or forfeiture. However, the witness may be prosecuted or subject to penalty or forfeiture for any perjury, false swearing, or contempt committed in answering or failing to answer, or in producing or failing to produce evidence in accordance with the order.


Comment

 

Rule 41 is based on RSA 516:34, which allows a prosecutor to request an order of immunity. The court cannot grant use immunity sua sponte under the immunity statute. The power to grant immunity lies solely with the State. State v. Flood, 159 N.H. 353 (2009).

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Rule 42. Non-Members of the New Hampshire Bar

(a) Non-attorneys. New Hampshire certified police officers who are not members of the New Hampshire Bar may prosecute misdemeanors and violation offenses on behalf of the State in the Circuit Court-District Division.

(b) Pro Hac Vice

(1) An attorney who is not a member of the New Hampshire Bar shall not be allowed to engage in the trial or hearing in any case, except on application to appear pro hac vice, which will not ordinarily be granted unless a member of the Bar of this State is associated with the non-member attorney and the member attorney is present at the trial or hearing.

(2) An attorney who is not a member of the New Hampshire Bar seeking to appear pro hac vice shall file a verified application with the court, which shall contain the following information:

(A) The applicant's residence and business address;

(B) The name, address and phone number of each client sought to be represented;

(C) The courts before which the applicant has been admitted to practice and the respective period(s) of admission;

(D) Whether the applicant:

(i) Has been denied admission pro hac vice in this state;

(ii) Had admission pro hac vice revoked in this state; or

(iii) Has otherwise formally been disciplined or sanctioned by any court in this state. If so, the applicant shall specify the nature of the allegations; the name of the authority bringing such proceedings; the caption of the proceedings, the date filed, and what findings were made and what action was taken in connection with those proceedings;

(E) Whether any formal, written disciplinary proceeding has ever been brought against the applicant by any disciplinary authority in any other jurisdiction within the last five years and, as to each such proceeding: the nature of the allegations; the name of the person or authority bringing such proceedings; the date the proceedings were initiated and finally concluded; the style of the proceedings; and the findings made and actions taken in connection with those proceedings;

(F) Whether the applicant has been formally held in contempt or otherwise sanctioned by any court in a written order in the last five years for disobedience to its rules or orders, and, if so: the nature of the allegations; the name of the court before which such proceedings were conducted; the date of the contempt order or sanction, the caption of the proceedings, and the substance of the court's rulings (a copy of the written order or transcript of the oral rulings shall be attached to the application); and

(G) The name and address of each court or agency and a full identification of each proceeding in which the applicant has filed an application to appear pro hac vice in this state within the preceding two years; the date of each application; and the outcome of the application.

(H) In addition, unless this requirement is waived by the court, the verified application shall contain the name, address, telephone number and bar number of an active member in good standing of the Bar of this State who will be associated with the applicant and present at any trial or hearing.

(3) The court has discretion as to whether to grant applications for admission pro hac vice. An application ordinarily should be granted unless the court finds reason to believe that such admission:

(A) May be detrimental to the prompt, fair and efficient administration of justice;

(B) May be detrimental to legitimate interests of parties to the proceedings other than the client(s) the applicant proposes to represent;

(C) One or more of the clients the applicant proposes to represent may be at risk of receiving inadequate representation and cannot adequately appreciate that risk; or

(D) The applicant has engaged in such frequent appearances as to constitute common practice in this state.

(4) An applicant for permission to appear pro hac vice shall pay a nonrefundable fee; provided that not more than one application fee may be required per non-member attorney for consolidated or related matters regardless of how many applications are made in the consolidated or related proceedings by the non-member attorney; and further provided that the requirement of an application fee may be waived to permit pro bono representation of an indigent client or clients, in the discretion of the court.


Comment

Rule 42 is consistent with the General Rules of the Circuit Court of the State of New Hampshire – District Division, as set forth in Rule 1.3 (“Attorneys”).

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Rule 43. Motions for Reconsideration

(a) A motion for reconsideration or other post-decision relief shall be filed within ten days of the date on the clerk’s written notice of the order or decision, which shall be mailed or electronically delivered by the clerk on the date of the notice. The motion shall state, with particular clarity, points of law or fact that the court has overlooked or misapprehended and shall contain such argument in support of the motion as the movant desires to present; but the motion shall not exceed ten pages. To preserve issues for an appeal to the Supreme Court, an appellant must have given the court the opportunity to consider such issues; thus, to the extent that the court, in its decision, addresses matters not previously raised in the case, a party must identify any alleged errors concerning those matters in a motion under this rule to preserve such issues for appeal. A hearing on the motion shall not be permitted except by order of the court.

(b) No answer to a motion for reconsideration or other post-decision relief shall be required unless ordered by the court, but any answer or objection must be filed within ten days of notification of the motion.

(c) If a motion for reconsideration or other post-decision relief is granted, the court may revise its order or take other appropriate action without rehearing or may schedule a further hearing.

(d) The filing of a motion for reconsideration or other post-decision relief shall not stay any order of the court unless, upon specific written request, the court has ordered such a stay.

Comment

The third sentence of paragraph (a) derives from N.H. Dep’t of Corrections v. Butland, 147 N.H. 676, 679 (2002), and is not intended to preclude a party from raising an issue on appeal under the plain error rule set forth in Supreme Court Rule 16-A.

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Rule 44. Special Procedures in Superior Court Regarding Sex-Related Offenses Against Children

(a) In any superior court case alleging a sex-related offense in which a minor child was a victim, the court shall allow the use of anatomically correct drawings and/or anatomically correct dolls as demonstrative evidence to assist the alleged victim or minor witness in testifying, unless otherwise ordered by the court for good cause shown.

(b) In the event that the alleged victim or minor witness is nervous, afraid, timid, or otherwise reluctant to testify, the court may allow the use of leading questions during the initial testimony but shall not allow the use of such questions relating to any essential element of the criminal offense.

(c) The clerk shall schedule a pretrial conference, to be held within forty-five days of the filing of an indictment, for the purpose of establishing a discovery schedule and trial date. At such conference, the court shall consider the advisability and need for the appointment of a guardian ad litem to represent the interests of the alleged victim.

(d) In the event that a guardian ad litem is appointed to represent the interests of a minor victim or witness, the role and scope of services of the guardian ad litem shall be explicitly outlined by the trial judge prior to trial.

(e) The guardian ad litem appointed under this rule shall be compensated at the same hourly rate and shall be subject to the same case maximums as set forth for defense counsel in misdemeanor cases under the provisions of Supreme Court Rule 47. The guardian ad litem shall also be reimbursed for the guardian’s investigative and related expenses, as allowed under Rule 47, upon a finding of necessity and reasonableness by a justice of the appropriate court, made prior to the said expenses being incurred.

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Rule 45. Criminal Contempt

(a) Direct Contempt. A direct criminal contempt may be punished summarily if the judge certifies that the judge saw or heard the conduct constituting the contempt and that it was committed in the presence of the judge. Oral notice of the conduct observed must be given by the judge. The contemnor must be given an opportunity to speak and present a defense. The order of contempt shall recite the adjudication and sentence and shall be signed by the judge and entered of record. The disposition, when imposed, shall also be entered on a separately numbered State v. (The Contemnor) file.

(b) Indirect Contempt. An indirect criminal contempt shall be prosecuted with notice. The notice shall state the time and place of hearing, allowing a reasonable time for the preparation of the defense, and shall state the essential facts constituting the criminal contempt charged. The notice shall be given orally by the judge in open court in the presence of the defendant or, on application of an attorney for the State or of an attorney appointed by the court for that purpose, by an order to show cause or an order of arrest. The defendant is entitled to admission to bail as provided by statute. In a proceeding under this rule, if the contempt charged involves disrespect to or criticism of a judge, that judge is disqualified from presiding at the trial or hearing except with the defendant's consent. Upon a verdict or finding of guilt, the court shall enter an order fixing the punishment.

Comment


With respect to the double jeopardy implications of contempt prosecutions, see State v. Goodnow, 140 N.H. 38 (1995).

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Rule 46. Photographing, Recording, and Broadcasting

(a) Except as otherwise provided by this rule or by other provisions of law, any person, whether or not a member of an established media organization, shall be permitted to photograph, record, and broadcast all court proceedings that are open to the public, provided that such person provides advance notice to the presiding justice in accordance with section (c) of this rule that he or she intends to do so. No person shall photograph, record, or broadcast any court proceeding without providing advance notice to the presiding justice that he or she intends to do so. In addition to giving any parties in interest an opportunity to object, the purpose of the notice requirement is to allow the presiding justice to ensure that the photographing, recording, or broadcasting will not be disruptive to the proceedings and will not be conducted in such a manner or using such equipment as to violate the provisions of this rule.

(b) Official court reporters, court monitors and other persons employed or engaged by the court to make the official record of any court proceeding may record such proceeding by video and/or audio means without compliance with the notice provisions of section (a) of this rule.

(c) Any person desiring to photograph, record, or broadcast any court proceeding, or to bring equipment intended to be used for these purposes into a courtroom, shall submit a written request to the clerk of the court or his or her designee, who, in turn, shall deliver the request to the presiding justice before commencement of the proceeding, or, if the proceeding has already commenced, at the first reasonable opportunity during the proceeding, so the justice before commencement of the proceeding, or at an appropriate time during the proceeding, may give all interested parties a reasonable opportunity to be heard on the request.

(d) Any party to a court proceeding or other interested person who has reason to believe that a request to photograph, record, or broadcast a court proceeding will be made and who desires to place limitations beyond that specified by this rule upon these activities may file a written motion seeking such relief. The motion shall be filed as far in advance of the proceeding as is practicable. Upon the filing of such a motion, the court may schedule a hearing as expeditiously as possible before the commencement of the proceeding and, if a hearing is scheduled, the court shall provide as much notice of the hearing as is reasonably possible to all interested parties and to the Associated Press, which shall disseminate the notice to its members.

(e) No court or justice shall establish notice rules, requirements or procedures that are different than those established by this rule.

(f) At any hearing conducted pursuant to subsections (c) or (d) of this rule, the party or person seeking to prohibit or impose restrictions beyond the terms of this rule on the photographing, recording, or broadcasting of a court proceeding that is open to the public shall bear the burden of demonstrating: (1) that the relief sought advances an overriding public interest that is likely to be prejudiced if the relief is not granted; (2) that the relief sought is no broader than necessary to protect that interest; and (3) that no reasonable less restrictive alternatives are available to protect the interest. Any order prohibiting or imposing restrictions beyond the terms of this rule upon the photographing, recording, or broadcasting of a court proceeding that is open to the public shall be supported by particularized findings of fact that demonstrate the necessity of the court’s action.

(g) The presiding justice retains discretion to limit the number of cameras, recording devices, and related equipment allowed in the courtroom at one time. In imposing such limitations, the presiding justice may give preference to requests to photograph, record, or broadcast made by a representative of an established media organization that disseminates information concerning court proceedings to the public. The presiding justice also may require representatives of the media to arrange pool coverage.

(h) It is the responsibility of representatives of media organizations desiring to photograph, record, or broadcast a court proceeding to contact the clerk of court in advance of a proceeding to ascertain if pool coverage will be required. If the presiding justice has determined that pool coverage will be required, it is the sole responsibility of such media representatives, with assistance as needed from the clerk or his or her designee, to determine which media organization will provide the coverage feed. Disputes about pool coverage will not ordinarily be resolved by the court, and the court may deny media organizations’ requests to photograph, record, or broadcast a proceeding if pool agreements cannot be reached. It also is the responsibility of said person to make arrangements with the clerk of court or his or her designee sufficiently in advance of the proceeding so that the set up of any needed equipment in the courtroom, including equipment for pool coverage, can be completed without delaying the proceeding. The court shall allow reasonable time prior to a proceeding for the set up of such equipment.

(i) The court shall make all documents and exhibits filed with the court, and not sealed, available for inspection by members of the public in a reasonably timely fashion, it being recognized that the court’s need to make use of documents and exhibits for official purposes must take precedence over their availability for public inspection. The court may elect to make one “public” copy of an exhibit available in the clerk’s office.

(j) The exact location of all recording, photographing, and broadcasting equipment within the courtroom shall be determined by the presiding justice. Once established, movement of such equipment within the courtroom is prohibited without the express prior approval of the presiding justice. The court may prohibit the use of any equipment that requires the laying of cords or wires that pose a safety hazard or impair easy ingress and egress from the courtroom. All equipment used must operate with minimal noise so as not to disrupt the proceedings.

(k) Unless otherwise ordered by the presiding justice, the following standing orders shall apply to all recording, photographing or broadcasting of proceedings within any courtroom:

(1) No flash or other artificial lighting devices shall be used.

(2) Set up and dismantling of equipment in a disruptive manner while court is in session is prohibited.

(3) No recording, photographing, or broadcasting equipment may be moved into, out of, or within the courtroom while court is in session.

(4) Recording, photographing, or broadcasting equipment must remain a reasonable distance from the parties, counsel tables, alleged victims and their families, and witnesses, unless such person(s) voluntarily approach the position where such equipment is located. No such equipment shall be used or set up in a location that creates a risk of picking up confidential communications between lawyer and client or conferences held at the bench among the presiding justice and counsel or the parties. No photographs of jurors or prospective jurors shall be allowed.

(5) All persons using recording, photographing, or broadcasting equipment must abide by the directions of court officers at all times.

(6) Interviews within the courtroom are not permitted before or after a proceeding.

(7) A person who has been granted permission to record, photograph, or broadcast a court proceeding shall not engage in any activity that distracts the participants or impairs the dignity of the proceedings.


Comment

 

Rule 46 is consistent with the General Rules of the Circuit Court of the State of New Hampshire – District Division, as set forth in Rule 1.4 (“Photographing, Recording and Broadcasting”).

With respect to subsection (c) of this rule, it is contemplated that such requests will be deemed timely if they are filed enough in advance of the proceeding that the presiding justice has an opportunity to read and consider the request, to orally notify all interested parties of its existence, and to conduct a brief hearing in the event that any interested party objects to the request. Given the strong presumption under New Hampshire law that photographing, recording and/or broadcasting court proceedings that are open to the public is allowable, this subsection is not intended to impose lengthy or onerous advance notice requirements; instead, it recognizes that frequently such requests will be filed only shortly before the proceeding in question is to begin. See generally Petition of WMUR Channel 9, 148 N.H. 644 (2002) (decided under prior version of the rule).

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Rule 47. Interpreters for Proceedings in Court

(a) Whenever a defendant, a witness, or a non-party individual having a significant interest in a court proceeding as defined by the Judicial Branch’s Language Services Plan, requires the assistance of an interpreter in order to testify or understand proceedings in court, the court shall arrange for the participation of an interpreter who meets the qualifications set forth in the Language Services Plan.

(b) In addition to the participation of the interpreter contemplated in paragraph (a) of this rule, whenever, in the case of an indigent defendant, defense counsel reasonably believes that counsel requires a separate interpreter in order to communicate with the defendant, counsel shall make application to the court for authorization under RSA 604-A:6 for funds to hire an interpreter for the purposes of facilitating out-of-court and in-court communication between counsel and the defendant. If the cost does not exceed $500 in superior court proceedings, no motion is required. See Superior Court Administrative order 2019-002.


Comment

Rule 47(a) refers to the New Hampshire Judicial Branch’s Language Services Plan, adopted effective February 6, 2018. Rule 47(b) addresses the fact that a party requiring interpretation services will often need an interpreter to facilitate in-court and out-of-court attorney-client conversations, when the attorney is not fluent in the client’s language. The separation of Rule 47 into the two paragraphs gives structural expression to the view that it will sometimes be necessary, when the defendant lacks fluency in English and counsel lacks fluency in the defendant’s language, to have two interpreters during in-court proceedings. One stands available to interpret all on-the-record speech of the witnesses, the judge, and counsel into the defendant’s language and to interpret the speech of any non-English-speaking witnesses into English. The second interpreter would provide interpretation of confidential attorney-client communications, when the attorney is not fluent in the defendant’s language.

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Rule 48. Clerk’s Office; Judge’s Chambers; Communications with the Court

(a) No witnesses, police personnel, prosecutors, defense counsel or defendants shall be permitted into a clerk's office or judge's chambers, except when necessary and as authorized by the court.

(b) Except where ex parte communications with the court are authorized by law, no person shall make any statement with regard to the merits of that person's case, orally or in writing, to any judge in whose court or before whom any suit, petition or other proceeding is pending or to be heard or tried except in open court or in the presence of all parties thereto.


Comment

Rule 48 is consistent with the General Rules of the Circuit Court of the State of New Hampshire – District Division, as set forth in Rule 1.6 (“Clerks office and judges chambers”).

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Rule 49. Untimely-Filed Guardian ad Litem Reports

(a) A guardian ad litem who, without good cause, fails to file a report required by any court or statute by the date the report is due may be subject to a fine of not less than $100 and not more than the amount of costs and attorneys fees incurred by the parties to the action for the day of the hearing. The guardian ad litem shall not be subject to the fine under this rule if, at least ten days prior to the date the report is due, he or she files a motion requesting an extension of time to file the report.

(b) The court clerk shall report to the guardian ad litem board all guardians ad litem who fail to file a report by the date the report is due. However, the report shall clearly indicate all such guardians for whom the court has found good cause for the late filing. The court clerk shall make such report available to the public.

 

Comment

Rule 49 is consistent with the General Rules of the Circuit Court of the State of New Hampshire – District Division, as set forth in Rule 1.25 (“Untimely-filed guardian ad litem reports”).

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Rule 50. Confidential Documents and Confidential Information

(a) Access to Documents.

(1)  General Rule.  Except as otherwise provided by statute or court rule, all pleadings, attachment to pleadings, exhibits submitted at hearings or trials, and other docket entries (hereinafter referred to collectively as “documents”) shall be available for public inspection.  This rule shall not apply to confidential or privileged documents submitted to the court for in camera review as required by court rule, statute or case law. 

(2)  Burden of Proof.  The burden of proving that a document or a portion of a document should be confidential rests with the party or person seeking confidentiality.

(3)  The following provisions govern a party’s obligations when filing a “confidential document” or documents containing “confidential information” as defined in this rule.

(b) Filing a Document Which Is Confidential In Its Entirety.

(1)  The following provisions govern a party’s obligations when filing a “confidential document” as defined in this rule.  A “confidential document” means a document that is confidential in its entirety because it contains confidential information and there is no practicable means of filing a redacted version of the document.

(2)  A confidential document shall not be included in a pleading if it is neither required for filing nor material to the proceeding.  If the confidential document is required or is material to the proceeding, the party must file the confidential document in the manner prescribed by this rule.

(3)  A party filing a confidential document must also file a separate motion to seal pursuant to subdivision (d) of this rule.

(4)  A party filing a confidential document shall identify the document in the caption of the pleading so as not to jeopardize the confidentiality of the document but in sufficient detail to allow a party seeking access to the confidential document to file a motion to unseal pursuant to subdivision (f) of this rule.

(c) Documents Containing Confidential Information.

(1)  The following provisions govern a party’s obligations when filing a document containing “confidential information” as defined in this rule.  If a document is confidential in its entirety, as defined in subsection (b) of this rule, the party must follow the procedures for filing a confidential document set forth in subdivision (b).

(2) “Confidential Information” means:

(A) Information that is not public pursuant to state or federal statute, administrative or court rule, a prior court order placing the information under seal, or case law; or

(B) Information which, if publicly disclosed, would substantially impair:

(i)  the privacy interests of an individual; or

(ii) the business, financial, or commercial interests of an individual or entity; or

(iii) the right to a fair adjudication of the case; or


(C) Information for which a party can establish a specific and substantial interest in maintaining confidentiality that outweighs the strong presumption in favor of public access to court records.

(3)  The following is a non-exhaustive list of the type of information that should ordinarily be treated as “confidential information” under this rule:

(A) information that would compromise the confidentiality of juvenile delinquency, children in need of services, or abuse/neglect, termination of parental rights proceedings, adoption, mental health, grand jury or other court or administrative proceedings that are not open to the public; or

(B) financial information that provides identifying account numbers on specific assets, liabilities, accounts, credit card numbers or Personal Identification Numbers (PINs) of individuals including  parties and non-parties; or

(C) personal identifying information of any person, including but not limited to social security number, date of birth (except a defendant’s date of birth in criminal cases), mother’s maiden name, a driver’s license number, a fingerprint number, the number of other government-issued identification documents or a health insurance identification number.

(4)  Filing Documents Containing Confidential Information.

(A)  When a party files a document the party shall omit or redact confidential information from the filing when the information is not required to be included for filing and is not material to the proceeding.  If none of the confidential information is required or material to the proceeding, the party should file only the version of the document from which the omissions or redactions have been made.  At the time the document is submitted to the court the party must clearly indicate on the document that the document has been redacted or information has been omitted pursuant to Rule 50(c)(4)(A).

(B)  It is the responsibility of the filing party to ensure that confidential information is omitted or redacted from a document before the document is filed.  It is not the responsibility of the clerk or court staff to review documents filed by a party to determine whether appropriate omissions or redactions have been made.

(C)  If confidential information is required for filing and/or is material to the proceeding and therefore must be included in the document, the filer shall file:

(i)  a motion to seal as provided in subdivision (d) of this rule;

(ii)  for inclusion in the public file, the document with the confidential information redacted by blocking out the text or using some other method to clearly delineate the redactions; and

(iii) an unredacted version of the document clearly marked as confidential.

(d) Motions to Seal.

(1) No confidential document or document containing confidential information shall be filed under seal unless accompanied by a separate motion to seal consistent with this rule.  In other words, labeling a document as “confidential” or “under seal” or requesting the court to seal a pleading in the prayers for relief without a separate motion to seal filed pursuant to this rule will result in the document being filed as part of the public record in the case.

(2)  A motion to seal a confidential document or a document containing confidential information shall state the authority for the confidentiality, i.e., the statute, case law, administrative order or court rule providing for confidentiality, or the privacy interest or circumstance that requires confidentiality.  An agreement of the parties that a document is confidential or contains confidential information is not a sufficient basis alone to seal the record.

(3)  The motion to seal shall specifically set forth the duration the party requests that the document remain under seal.

(4) Upon filing of the motion to seal with a confidential document or the unredacted version of a document, the confidential document or unredacted document shall be kept confidential pending a ruling on the motion.

(5)  The motion to seal shall itself automatically be placed under seal without separate motion in order to facilitate specific arguments about why the party is seeking to maintain the confidentiality of the document or confidential information.

(6)  The court shall review the motion to seal and any objection to the motion to seal that may have been filed and determine whether the unredacted version of the document shall be confidential.  An order will be issued setting forth the court’s ruling on the motion to seal.  The order shall include the duration that the confidential document or document containing confidential information shall remain under seal.

(7)  A party or person with standing may move to seal or redact confidential documents or confidential information that is contained or disclosed in the party’s own filing or the filing of any other party and may request an immediate order to seal the document pending the court’s ruling on the motion.

(8)  If the court determines that the document is not confidential, any party or person with standing shall have 10 days from the date of the clerk’s notice of the decision to file a motion to reconsider or a motion for interlocutory appeal to the supreme court.  The document shall remain under seal pending ruling on a timely motion.  The court may issue additional orders as necessary to preserve the confidentiality of a document pending a final ruling or appeal of an order to unseal.

(e) Procedure for Seeking Access to a Document or Information Contained in A Document that has been Determined to be Confidential

(1)  Any person who seeks access to a document or portion of a document that has been determined to be confidential shall file a motion with the court requesting access to the document in question.  There shall be no filing fee for such a motion.

(2)  The person filing a motion to unseal shall have the burden to establish that notice of the motion to unseal was provided to all parties and other persons with standing in the case.  If the person filing the motion to unseal cannot provide actual notice of the motion to all interested parties and persons, then the moving person shall demonstrate that he or she exhausted reasonable efforts to provide such notice.  Failure to effect actual notice shall not alone be grounds to deny a motion to unseal where the moving party has exhausted reasonable efforts to provide notice.

(3)  The Court shall examine the document in question together with the motion to unseal and any objections thereto to determine whether there is a basis for nondisclosure and, if necessary, hold a hearing thereon.

(4)  An order shall be issued setting forth the court’s ruling on the motion, which shall be made public.  In the event that the court determines that the document or information contained in the document is confidential, the order shall include findings of fact and rulings of law that support the decision of nondisclosure.

(5)  If the court determines that the document or information contained in the document is not confidential, the court shall not make the record public for 10 days from the date of the clerk’s notice of the decision in order to give any party or person with standing aggrieved by the decision time to file a motion to reconsider or appeal to the supreme court.

(f) Sanctions for Disclosure of Confidential Information.


           If a party knowingly publicly files documents that contain or disclose confidential information in violation of these rules, the court may, upon its own motion or that of any other party or affected person, impose sanctions against the filing party.

 

Comment

These provisions are intended to ensure that confidential documents and information contained within documents are accessible, upon filing, only to the court and its staff, to the parties and their attorneys or the parties’ authorized representatives, and to others authorized to perform service of process.  Any person or entity not otherwise entitled to access may file a motion or petition to gain access to any sealed or confidential court record.  See, e.g., Associated Press v. State of N.H., 153 N.H. 120 (2005); Petition of Keene Sentinel, 136 N.H. 121 (1992).

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Rule 51. Furnishing Information Regarding Competency and Sanity Evaluations

(a) Information from the State. Within ten days after an order under RSA 135:17 for a competency or sanity evaluation of a defendant in a criminal proceeding, the State shall furnish a brief written statement of the factual background to the personnel performing the evaluation. The State shall also furnish a copy of the defendant’s criminal record as soon as reasonably possible.

(b) Information from the Defense. The defense may provide a brief written statement of the factual background to the personnel performing the evaluation.

(c) The parties may submit additional information to the personnel conducting the evaluation but are not required to do so in the absence of an order from the court.

(d) After a hearing, for good cause shown, and if not otherwise prohibited by court rules or law, the court may order disclosure of additional information necessary for the evaluation.

(e) All information provided pursuant to this rule is for the purpose of evaluating the sanity or competency of the defendant and may not be used for any other purpose without permission of the court. Documents which contain such information and which are in the court record shall be kept under seal from public view. Upon the motion of either party, or on its own motion, the court may enter additional protective orders regarding the information subject to this rule.

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Rule 52. Fees

(a) The appropriate fee must accompany relevant filings.

(b) Fees

(1) Petition to Annul Criminal Record $ 125.00

(2) Application to Appear Pro Hac Vice $ 350.00

(3) Certificates and Certified Copies $ 10.00

(4) All copied material $.50 per page

(5) Records research fees:

(A) Record information must be requested in writing and include the individual’s full name and, if available, the individual’s date of birth. A fee of $20 per name will be assessed for up to 5 names. Additional names will be assessed $5 per name.

(B) The Clerk may waive the records research fee when a request for record information is made by a member of the media consistent with the public’s right to access court records under the New Hampshire Constitution.

(c) Electronic Case Filing Surcharge $20.00

Note: The electronic case filing surcharge is not an entry fee subject to the escrow fund for court facility improvements or the judicial branch information technology fund. All revenue from the electronic case filing surcharge shall be deposited into the general fund to partly offset capital fund expenditures for the NH e-Court project.

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Rule 53. Duplication of Audio Recordings

(a) Any person may request a copy of the audio recording of a hearing except when a case or proceeding is confidential by statute, court rule or order. The recording will be provided by the court or by the transcriber designated by the Supreme Court in accordance with Supreme Court Rule 59 on CD or by audio download for a fee to be determined in accordance with a fee schedule approved by the Supreme Court. A copy of the recording of a court proceeding shall not be deemed to be the official record of the proceeding.

(b) In the case of any proceeding made CONFIDENTIAL by New Hampshire statute, case law, or court order, no duplicate audio recording shall be released, except to a party to the proceeding granted access by the court or to an attorney for a party to the proceeding. In such cases, the party or attorney shall be advised of his or her obligation to keep the audio recording confidential.

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