Superior Court Rules Table of Contents
[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.]
98. The following discovery and scheduling provisions shall apply to all criminal cases in the Superior Court unless otherwise modified by the presiding justice in accordance with paragraph J hereof.
A. Pretrial Disclosure by the State.
(1) Within ten (10) calendar days after the entry of a not guilty plea by the defendant, the state shall provide the defendant with the materials specified below:
(i) A copy of all statements, written or oral, signed or unsigned, made by the defendant to any law enforcement officer or his agent which are intended for use by the state as evidence at trial or at a pretrial evidentiary hearing.
(ii) Copies of all police reports; statements of witnesses; 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.
(iii) The defendant's prior criminal record.
(iv) Copies of or access to all books, papers, documents, photographs, tangible objects, buildings or places which are intended for use by the state as evidence at trial or at a pretrial evidentiary hearing.
(v) 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).
(vi) Notification of the state's intention to offer at trial pursuant to N.H. 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.
B. Pretrial Disclosure by the Defendant.
(1) If the defendant intends to rely upon an alibi or any other defense specified in the Criminal Code, the defendant shall within thirty (30) calendar days after the entry of a plea of not guilty file a notice to this effect with the court and the prosecution as provided in Superior Court Rules 100 and 101.
(2) If a defendant in a case to which Superior Court Rule 100-A applies intends to offer evidence of prior sexual activity of the victim with a person other than the defendant, the defendant shall not less than forty-five (45) calendar days prior to jury selection file a motion in conformance with the requirements of said rule.
(3) Not less than thirty (30) calendar days prior to jury selection or, in the case of a pretrial evidentiary hearing, not less than three (3) calendar days prior to such hearing, the defendant shall provide the state with copies of or access to (i) 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 and (ii) all results or reports of physical or mental examinations, scientific tests or experiments or other reports or statements prepared or conducted by experts which the defendant anticipates calling as a witness at the trial or hearing, as well as a summary of each such expert's qualifications.
C. Dispositional Conferences.
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.
D. Exchange of Information Concerning Trial Witnesses.
(1) Not less than twenty (20) calendar days prior to final pretrial conference or, in the case of a pretrial evidentiary hearing, not less than three (3) 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 A(ii) of this rule the state shall also 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.
For each expert witness included on the list of witnesses, the state shall provide a brief summary of the expert's education and experience relevant to his area of expertise, state the subject matter on which the expert is expected to testify, state a summary of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion, and provide a copy of any expert report relating to such expert.
(2) Not later than ten (10) calendar days before the final pretrial conference or, in the case of a pretrial evidentiary hearing, not less than two (2) 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 also 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.
For each expert witness included on the list of witnesses, the defendant shall provide a brief summary of the expert's education and experience relevant to his area of expertise, state the subject matter on which the expert is expected to testify, state a summary of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion, and provide a copy of any expert report relating to such expert.
(3) 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.
E. 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 (i) notification that the statement or report in question has been redacted and (ii) (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.
F. Motions Seeking Additional Discovery.
Subject to the provisions of paragraph J, the discovery mandated by paragraphs A, B and D 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 A, B and D of this rule shall be accepted for filing by the clerk of court unless said motion contains a specific recitation of (i) the particular discovery materials sought by the motion, (ii) the efforts which the movant has made to obtain said materials from the opposing party without the need for filing a motion and (iii) 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 D, all motions seeking additional discovery, including motions for a bill of particulars and for depositions, shall be filed within forty-five (45) calendar days 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 D shall be filed no later than seven (7) calendar days after such disclosure occurs.
G. Other 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, not more than sixty (60) calendar days after entry of a plea of not guilty or within such other time in advance of trial as the Court may order for good cause shown or may provide for in a pretrial scheduling order.
H. Motions in Limine.
The parties shall file all motions in limine no less than five (5) 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.
I. 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 order are generated or as a party learns that discovery previously provided is incomplete, inaccurate or misleading.
J. 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.
K. 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: (i) ordering the party to provide the discovery not previously provided, (ii) granting a continuance of the trial or hearing, (iii) prohibiting the party from introducing the evidence not disclosed, (iv) assessing costs and attorneys fees against the party or counsel who has violated the terms of this rule.
99. [Suspended by supreme court order dated September 30, 1997.]
99-A. In every case where there may be a possible extended term of imprisonment under RSA 651:6, the prosecuting attorney shall give notice of same to the defendant prior to the commencement of trial and file a copy of such notice with the Clerk.
Superior Court Rules Table of Contents