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NEW HAMPSHIRE RULES OF CRIMINAL PROCEDURE

ARRAIGNMENT, PLEAS AND PRETRIAL PROCEEDINGS

Rule 15.  Pretrial Motions

  
   
(a) District Court

  
     (1) General

  
         (A) Any request for action by the court shall be by motion. All motions, other than those made during trial or hearing, shall be made in writing unless otherwise provided by these rules.  They shall state with particularity the grounds upon which they are made and shall set forth the relief or order sought.

            (B) 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.

            (C) Any party filing a motion shall certify to the court that a good faith attempt to obtain concurrence in the relief sought has been made, 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.

            (D) Unless the opposing party requests a hearing upon any motion and sets forth the grounds of the objection by a pleading and, if required, an affidavit within ten days after the filing of the motion, that party shall be deemed to have waived a hearing and the court may act thereon.

            (E) Any motion which is capable of determination without the trial of the general issue shall be raised before trial, but may, in the discretion of the court, be heard during trial.

            (F) Motions to dismiss will not be heard prior to the trial on the merits, unless counsel shall request a prior hearing, stating the grounds therefore; all counsel shall be prepared, at any such hearing, to present all necessary evidence.

        (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.

            (A) All motions for continuance shall be in writing and signed by the moving party.  The motion shall state the reasons for the continuance and the position of the opposing party or that a good faith attempt was made to ascertain the position of the opposing party.

            (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) In exceptional situations, motions to continue may be made orally in accordance with these rules and shall be effective as such, but it shall be the burden of the moving party to establish a record thereof by confirming such request in writing. Only attorneys, police prosecutors, or parties pro se, shall be permitted to orally move for a continuance.

            (E) 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.

            (F) 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.

   (b) Superior Court

  
     (1) Pretrial Motions. The parties shall file all pretrial motions other than discovery related motions, including but not limited to motions to dismiss, motions to suppress, and motions to sever charges or defendants, no later than forty-five days prior to the scheduled jury selection date.

        (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 jury selection. 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) 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) In exceptional situations, motions to continue may be made orally in accordance with these rules and shall be effective as such, but it shall be the burden of the moving party to establish a record thereof by confirming such request in writing.

            (E) 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.

            (F) 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.

        (5) Requirements Relating to Motions. 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 ground for granting a motion.


Comments

     
   
The committee reviewed prior District Court and Superior Court rules regarding continuances.  Rule 15 is consistent with those prior rules except as otherwise noted.

   Rule 15(a)(1) addresses motions in district court and derives from current District Court Rule 1.8.

   Rule 15(a)(2) governing motions to suppress in district court derives from current District Court Rule 2.8(c).

   Rule 15(a)(3) addresses motions to continue in criminal cases.  The committee has not followed prior District Court Rules 1.8-A and 1.8-B because the committee does not believe those prior rules are followed in practice.  The new language written by the committee describes current practice and attempts to account for the concerns of the court and the parties regarding continuances.

   Rule 15(b)(1) governing pretrial motions in superior court derives from current Superior Court Rule 98(F), entitled “Other Pretrial Motions.”

   Rule 15(b)(2) addresses motions to suppress in superior court and derives from current Superior Court Rule 94, entitled “Criminal Proceedings, Motions To Suppress Evidence.”  The committee modified the rule to reflect the current practice of hearing motions to suppress before trial.

   Rule 15(b)(3) governs motions in limine in superior court and derives from current Superior Court Rule 98(G), entitled “Motions in Limine.”

   Rule 15(b)(4) governs motions to continue in superior court and derives from current Superior Court Rule 96, entitled “Requests For Continuances or Postponements” and current Superior Court Rule 49-A.


    Rule 15(b)(5) addresses requirements relating to motions and derives from current Superior Court Rules 57, 57A, and 58. While the current superior court rules do not explicitly establish ten days as the time in which a party must object to a motion, such a deadline is recognized in current practice and is consistent with the deadline for responding to motions to reconsider under current Superior Court Rule 59A.


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