Superior Court Rules Table of Contents
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 I 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 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.
(2) Within
thirty (30) 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) 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.
(ii) The defendant's prior criminal record.
(iii) 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.
(iv) 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).
(v) 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.
Exchange of Information Concerning Trial Witnesses.
(1) Not
less than twenty (20) 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 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(2)(i) 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 the final pretrial conference or ten (10) calendar days before jury selection, whichever occurs first, 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.
D.
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.
E.
Motions Seeking Additional Discovery.
Subject to the provisions of
paragraph I, the discovery mandated by paragraphs A through C 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 through C 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
C, all motions seeking additional discovery, including motions for a bill of
particulars and for depositions, shall be filed within sixty (60) 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 C shall be filed no later than seven (7) calendar days
after such disclosure occurs.
F.
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 less than forty-five (45) calendar days prior to the scheduled
jury selection date 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.
G.
Motions in Limine.
The parties shall file all motions in
limine no less than five (5) 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.
H.
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.
I.
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.
J.
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.