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Superior Court Rules Table of Contents

 

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

 

SUPERIOR COURT INITIAL APPEARANCE PILOT PROJECT RULES

(Initial Appearance Pilot Project for Strafford and Cheshire County Superior Courts)

 

Pursuant to the authority conferred by Part II, Article 73-a of the New Hampshire Constitution, the Court hereby adopts on a temporary basis the attached Initial Appearance (IA) Pilot Project Rules 1 through 7. These rules shall take effect in Strafford County on June 2, 2014, and in Cheshire County on July 1, 2014.

 

INITIAL APPEARANCE PILOT PROJECT RULES (IA)

  IA 1. PURPOSE, SCOPE AND EFFECTIVE DATE OF RULES

  (a)  Purpose. The Initial Appearance Pilot Project implements a new model for processing felony charges and misdemeanor or lesser charges related to those felonies in the superior court. The goal is to promote the prompt and fair resolution of cases through early information sharing and early judicial attention to the case resolution process.

(b)  Scope - Relationship to Other Rules . Insofar as these rules conflict with any existing Rules of the Superior Court of the State of New Hampshire Applicable in Criminal Cases Filed in Superior Court, these rules shall supersede such existing rules during the time and in the courts in which these rules are in effect. In the courts in which these rules are in effect, the Initial Appearance Pilot Project Rules will replace the following Rules of the Superior Court Applicable in Criminal Cases Filed in the Superior Court: 94 (Motions to Suppress Evidence), 96-A (Criminal Case Scheduling Orders), 98 (Discovery), 99-A (Notice of Extended Term), 100 (Notice of Alibi), 100-A (Prior Sexual Activity), and 101 (Notice of Criminal Defense). All existing rules of the Rules of the Superior Court of the State of New Hampshire Applicable in Criminal Cases Filed in Superior Court not in conflict with these rules shall remain in full force and effect.

(c)  Effective Date and Applicability of Rules. These rules shall take effect in Strafford County on June 2, 2014 and will apply to cases directly indicted in Strafford County or bound over to Strafford County Superior Court on or after June 2, 2014. These rules shall take effect in Cheshire County on July 1, 2014 and will apply to cases directly indicted in Cheshire County or bound over to Cheshire County Superior Court on or after July 1, 2014.

(d)  Cases Pending Prior to Effective Date. Cases pending prior to the effective date of these rules shall not be subject to the requirements of these rules.

(e)  Waiving Application of Pilot Rules in Specific Cases. The superior court may at any time make any order that is appropriate to the specific needs of any case. When the court finds that application of these pilot rules would not be feasible or would work an injustice, the court may exempt the case from these rules or from any one rule.

IA 2. INITIAL APPEARANCE

  (a) When a felony charge has been bound over to the superior court, the superior court shall schedule the matter for an initial appearance. The matter shall be scheduled for an initial appearance at or after arraignment when a defendant is directly indicted. The initial appearance may not be waived and the defendant must be present.

(b)  Counsel shall be prepared at the initial appearance to approve a date scheduled by the court for a dispositional conference and any other hearings scheduled.

(c)  Counsel shall be prepared to discuss the possibility of a plea at the initial appearance.

(d)  Counsel for the State shall notify the court of any known charges pending against the defendant in other jurisdictions.

IA 3. ARRAIGNMENT

  Upon defendant's indictment, the court shall schedule the matter for arraignment.

IA 4. DISCOVERY

The following discovery and scheduling provisions shall apply to all criminal cases in the superior court unless otherwise modified by the presiding judge.

(a) Time for State to Provide Automatic Discovery. The State shall provide or make available copies of all discovery in its possession to defense counsel not less than ten (10) days prior to the initial appearance. If at the initial appearance the defendant receives appointed counsel or requests and is given time to locate counsel, the State shall provide or make available copies of the discovery to counsel upon receipt of defense counsel's appearance.

(b) Automatic Pretrial Disclosure by the State. Discovery to be provided by the State in accordance with IA Rule 4(a), above, includes, but is not limited to:

(1) A copy of all statements, written or oral, signed or unsigned, made by the defendant to any law enforcement officer or his/her agent which are intended for use by the State as evidence at trial or at a pretrial evidentiary hearing.

(2) Copies of all police reports, witness statements, 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.

(3) The defendant's prior criminal record.

(4) 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.

(5) 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).

(6) 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.

  (c) Scope of Automatic Pretrial Disclosure by the State. Discovery in the possession of any state or local police agency or any political subdivision that has direct, investigative responsibility for the case shall be deemed to be in the possession of the State.

  (d) Discovery not in State's Possession at Initial Appearance. At the initial appearance the State shall make the judge and defendant aware of any known discovery not yet in its physical possession or not yet provided to defendant.

(e) Pretrial Disclosure by the Defendant.

(1) Notice of Criminal Defense. If the defendant intends to rely upon a defense specified in the Criminal Code other than alibi, the defendant shall file a notice to this effect with the court and the prosecution not more than seven (7) days after the dispositional conference. The defendant shall exchange written information about his/her intent to file such notice not less than seven (7) days prior to the dispositional hearing. If defendant fails to comply with this rule, the court may exclude any testimony relating to such defense or make such other order as the interest of justice requires.

(2) Notice of Prior Sexual Activity. If a defendant intends to offer evidence of specific prior sexual activity of the alleged victim with a person other than the defendant, the defendant shall file a motion not more than seven (7) days after the dispositional hearing setting forth with specificity the reasons that due process requires that he/she offer such evidence and that the probative value thereof to the defendant outweighs the prejudicial effect on the alleged victim. The defendant shall exchange written information about his/her intent to file such notice not less than seven (7) days prior to the dispositional hearing. If the defendant fails to comply with this rule, he/she shall be precluded from relying on such evidence, except for good cause shown.

(3) Notice of Alibi. If a defendant intends to rely upon the defense of alibi, he/she shall notify the prosecution in writing of such intention and file a copy of such notice with the Clerk at or before the initial appearance. The notice of alibi shall be signed by the defendant and shall state the specific place at which he claims to have been at the time of the alleged offense and the names and addresses of the witnesses upon whom he intends to rely to establish such alibi.

Within 10 days after the receipt of such notice of alibi from the defendant, the prosecution shall furnish the defendant, or his/her counsel, in writing with a list of the names and addresses of the witnesses upon whom the prosecution intends to rely to establish the defendant's presence at the scene of the alleged offense.

If prior to or during trial, a party learns of an additional witness whose identity, if known, should have been included in the information required by this rule, the party shall forthwith notify the other party, or his/her counsel, of the existence and identity and address of such additional witness.

Upon the failure of either party to comply with the requirements of this rule, the court may exclude the testimony of any undisclosed witness offered by such party as to the defendant's absence from, or presence at, the scene of the alleged offense. This rule shall not limit the right of the defendant to testify in his/her own behalf concerning the alibi notwithstanding he/she has not filed notice.

(4) Automatic Pretrial Disclosure by the Defendant. Not less than ten (10) days prior to the final pretrial conference or, in the case of a pretrial evidentiary hearing, not less than three (3) 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 all experts the defendant anticipates calling as witnesses at the trial or hearing, as well as a summary of each such expert's qualifications.

(5) The court may waive the requirements of this rule for good cause shown.

(f) Exchange of Information Concerning Trial Witnesses.

(1) Not less than twenty (20) days before the final pretrial conference or, in the case of a pretrial evidentiary hearing, not less than three (3) 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 IA Rule (4)(b), 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 less than ten (10) days before the final pretrial conference, or, in the case of a pretrial evidentiary hearing, not less than two (2) 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/her 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.

  (g) Protection of Information Not Subject to Disclosure. To the extent that 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.

(h) Motions Seeking Additional Discovery. The discovery mandated by paragraphs (b), (e) and (f), 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 (b), (e) and (f), 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 (f), all motions seeking additional discovery, including motions for a bill of particulars and for depositions, shall be filed once the need for such discovery motion is evident. Motions for additional discovery or depositions with respect to trial witnesses first disclosed pursuant to paragraph (f) shall be filed not less than five (5) days after such disclosure occurs.

(i) Continuing Duty to Disclose. The parties are under a continuing obligation to supplement their discovery responses on a timely basis as additional materials 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 these discovery rules, 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.

IA 5. WRITTEN PLEA OFFERS

  State's Written Plea Offer. The State shall provide a written offer for a negotiated plea, in compliance with the Victim's Rights Statute, to defense counsel not less than ten (10) days prior to the initial appearance. In the event there is no defense counsel of record at that time, the written plea offer shall be provided not later than at the initial appearance.

IA. 6. DISPOSITIONAL CONFERENCE. The purpose of the dispositional conference is to facilitate meaningful discussion and early resolution of cases.

(a) The judge shall have broad discretion in the conduct of the dispositional conference. The defendant and defendant's counsel, if any, shall appear at the dispositional conference. The State and the defendant shall be represented at the dispositional conference by an attorney who has full authority to make decisions regarding disposition of, and sentencing recommendations regarding, the charges against the defendant. State's counsel shall be in compliance with the Victim's Rights statute.

(b) Counsel shall be prepared to identify and discuss the impact of charges being brought against the defendant in other jurisdictions, if any.

(c) If a plea agreement is not reached at the dispositional conference, the matter shall be set for final pretrial, and trial or jury selection. The court may also schedule any motions discussed during the dispositional hearing. Counsel shall be prepared to approve dates scheduled by the court.

(d) Evidence of conduct or statements made during the dispositional conference about the facts and/or merits of the case is not admissible as evidence at a hearing or trial.

IA. 7. MOTIONS, NOTICES AND OBJECTIONS

  (a) Deadline for Filing Specific Pretrial Motions and Notices. The deadline for filing the following listed motions and notices shall be seven (7) days after the dispositional conference: notices of criminal defense (other than notice of alibi, which must be filed by the initial appearance), notices of prior sexual activity, notices of extended term, motions for joinder or severance of offenses, motions to suppress evidence, Daubert motions, and other motions relating to the admissibility of evidence that would require a substantial pretrial hearing.

  (b) Deadline for Exchange of Specific Pretrial Motions and Notices Information. Not less than seven (7) days prior to the dispositional conference the State and the defendant shall exchange written information regarding which motions and notices listed in IA Rule 7(a) they intend to file. The parties shall utilize a court form for this exchange of information. For each motion/notice identified, the party shall provide the opposing party with either a draft copy of the motion/notice or a written informational summary or memorandum stating the pertinent law and/or the facts in support of the motion, as appropriate. At the dispositional conference each party shall bring a copy of the court form and information provided to the opposing party.

(c) Motions for Discovery. Refer to Initial Appearance Pilot Project Rule 4 for motions pertaining to discovery.

(d) Content of Motions to Suppress and Other Related Information. Every motion to suppress evidence shall be in writing and shall specifically set forth all the facts and grounds in separate numbered paragraphs upon which the motion is based. It shall be signed by the defendant or his or her 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.

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 in its opening or otherwise and shall make no offer thereof in the presence of the jury. 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.

At the hearing in advance of trial, the burden of proof shall be upon the State as it would be if the issue was raised at trial.

In determining whether to hear a motion to suppress in advance of trial, the court will consider any prejudice which may result to the State by disclosure in advance of trial of evidence necessary to meet the burden of proof.

  (e) Motions Regarding Use of Prior Convictions. If a party plans to use or refer to any prior criminal record during trial, for the purpose of attacking or affecting the credibility of a defendant or witness, the party shall first furnish a copy of the same to the opposing party, or to counsel, and then obtain a ruling from the court as to whether the defendant or 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 defendant or witness was represented by counsel at the time of the conviction unless counsel was waived. Such motion and underlying information shall be filed with the court and the opposing party not less than ten (10) days before the final pretrial conference.

(f) Notice of Extended Term of Imprisonment. 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 and file a copy of such notice with the Clerk not less than seven (7) days after the dispositional conference. The State shall exchange written information with the defense about its intent to file such notice not less than seven (7) days prior to the dispositional conference.

(g) Motions in Limine. The parties shall file all motions in limine not less than ten (10) days prior to 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.

(h) Other. All motions and notices other than those referenced in this “Motions, Notices and Objections” section shall be filed with the court promptly after grounds for the motion/notice arise. This includes, but is not limited to, Motions to Determine Competency, Motions to Reduce Bail, and Motions to Dismiss.

(i) Objections. Unless otherwise expressly provided by statute, court rule or order, objections to motions and notices shall be filed with the court within 10 days after the filing of the motion and shall list the specific facts and grounds for objection, including applicable law. Failure to object shall not, in and of itself, be grounds for granting the motion.

 

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