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NEW HAMPSHIRE RULES OF CRIMINAL PROCEDURE

PRELIMINARY PROCEEDINGS

Rule 6.  District Court Probable Cause Hearing


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


   
(b) 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 which would have been the subject of the hearing. A probable cause hearing may be adjourned for reasonable cause.

   (c) Notice to Defendant.  The court shall inform the defendant of the complaint, the right to counsel, and the right to a preliminary examination.  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.

   (d) 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.

   (e) 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.

   (f) 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.

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


Comments


   
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 if there is enough evidence to proceed to trial. In essence, it is a hearing to determine whether probable cause exists.


   
This rule is generally based on RSA 596-A.


   
Rule 6(a) recognizes that preliminary examinations are held only in cases in which a defendant is charged with an offense beyond the jurisdiction of the district court and the defendant has not been indicted.  Rule 6(b) requires that a hearing be scheduled in accordance with New Hampshire District Court Order 91-03. If a person is indicted before the date of the preliminary examination, no preliminary examination will be held. See N.H. Dist. Ct. Rule 2.16; State v. Gagne, 129 N.H. 93 (1986).


   
Rule 6(c) is derived from RSA 596-A:3.

   Rule 6(d) recognizes that the Rules of Evidence are not applicable at a probable cause hearing. N.H. Rule of Evidence 1101(d)(3); State v. Arnault, 114 N.H. 216 (1974).  A defendant may testify at the hearing, however, the defendant's testimony may be introduced by the State in subsequent proceedings. State v. Williams, 115 N.H. 437 (1975). 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. In addition RSA 596-A:5 provides for limited testimony by the defendant and RSA 596-A:6 provides for sequestration of witnesses.

   Rule 6(e) and (f) are based on RSA 596-A:7. There are two issues in a probable cause hearing. The first issue is whether probable cause exists to believe that a charged offense has been committed. The second issue is whether there is probable cause to believe that the defendant committed the offense. RSA 596-A:7; State v. Arnault, 114 N.H. 216 (1974). If probable cause is found, the defendant is bound over until a meeting of the grand jury.  During the bindover period, the defendant may be admitted to bail as provided by statute.

   Rule 6(g) simply provides that a defendant may waive the right to a probable cause hearing in writing. The language of New Hampshire District Court Rule 2.19 has not been incorporated because the procedure described in that rule is not commonly followed.


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