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RULES OF THE SUPERIOR COURT OF THE STATE OF NEW HAMPSHIRE APPLICABLE IN CRIMINAL CASES FILED IN SUPERIOR COURT

 

[Editor’s note: The rules that follow were, prior to October 1, 2013, titled Rules of the Superior Court of the State of New Hampshire. Effective October 1, 2013, these rules applied only in criminal cases filed in Superior Court and in domestic relations cases filed in the Cheshire County Superior Court. Effective December 16, 2013 these rules apply only in criminal cases filed in Superior Court. For civil cases filed or pending in Superior Court on or after October 1, 2013, see the Rules of the Superior Court of the State of New Hampshire Applicable in Civil Actions.]

PROCEDURE DURING TRIAL


    64. Counsel shall seasonably furnish for the convenience of the Presiding Justice, as he may require, copies of the specifications, contracts, letters or other papers offered in evidence.


    64-A. It is within the Court's discretion to permit jurors to take notes on evidence. If notetaking is allowed, 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 verdict, the Court will immediately destroy or order the destruction of all notes.


    64-B. In any civil case, and in any criminal case in which all parties consent, it is within the discretion of the trial judge to permit jurors to ask written questions.  If a trial judge decides to permit jurors to ask written questions at trial, the following procedure shall be utilized:

        1. At the start of the trial, the judge will announce to the jury and counsel the decision to allow jurors to ask written questions of 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, based on the rules of evidence, 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 which 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, 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.


    65. Only one counsel on each side will be permitted to examine a witness.


    66. (a) When stating an objection, counsel will state only the basis of the objection (e.g., "leading," "non-responsive," or "hearsay"), provided, however, that upon counsel's request, counsel shall be permitted a reasonable opportunity to approach the bench to elaborate and present additional argument or grounds for the objection.

         (b) Motions to dismiss or for mistrial as well as offers of proof should be made at the bench and out of the hearing of the jury.


    67. A witness cannot be re-examined by the party calling him, after his cross-examination, unless by leave of Court, except so far as may be necessary to explain his answers on his cross-examination, and except as to new matter elicited by cross-examination, regarding which he has not been examined in chief.


    68. If a party plans to use or refer to any prior criminal record, for the purpose of attacking or affecting the credibility of a party or witness, he shall first furnish a copy of same to the opposing party, or to his 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.


    69. After a witness has been dismissed from the stand, he cannot be recalled without permission of the Court.


    70. In all trials, the plaintiff shall put in his whole case before resting and shall not thereafter, except by permission of the Court for good cause shown, be permitted to put in any evidence except such as may be strictly rebutting; and the defendant shall, before resting, put in his whole defense, and shall not thereafter introduce any evidence except such as may be in reply to the rebutting evidence.


    71.    Opening statements shall not be argumentative and shall not be longer than 30 minutes unless the Court otherwise directs.  Closing arguments shall be limited to one hour each, unless otherwise ordered by the Court in advance.  Before any person shall read to the jury any excerpt of testimony from a transcript prepared by the designated court transcriber, he or she shall furnish the opposing party with a copy thereof.


    72. In non-jury cases, unless otherwise ordered for good cause shown, all requests for findings and rulings and written memoranda of law must be submitted to the Presiding Justice no later than the close of the evidence. In jury cases, all requests for instructions must be submitted in accordance with Rule 62 H. In criminal cases, where the defendant has moved that certain evidence be suppressed and has requested the court to make certain findings of fact and rulings of law, the Presiding Justice will make sufficient findings and rulings to permit meaningful appellate review. All objections to the charge shall be considered as waived unless taken on the record before the jury retires.


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