THE STATE OF NEW HAMPSHIRE

SUPREME COURT OF NEW HAMPSHIRE

O R D E R

 

Pursuant to Part II, Article 73-a of the New Hampshire Constitution and Supreme Court Rule 51, the Supreme Court of New Hampshire approves adoption of Superior Court Rule 98 on a permanent basis as set forth in Appendix A, and adoption of a new Rule 1.17 to the Rules of Professional Conduct as set forth in Appendix B. The amendments set forth in Appendix A shall be effective immediately; the amendments set forth in Appendix B shall be effective on March 1, 2003.

December 13, 2002

                                                                ATTEST: ___________________________

                                                                                Eileen Fox, Clerk
                                                                                Supreme Court of New Hampshire

APPENDIX A

Amend Superior Court Rule 98, which was adopted on a temporary basis by order dated September 30, 1997, by substituting the word "of" for "or" in subsection A(2)(iv) and adopting said rule as amended on a permanent basis. As adopted, Superior Court Rule 98 shall state as follows:

 

    
   
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.

            (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.

            (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.

        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.

APPENDIX B

Adopt a new Rule 1.17 to the Rules of Professional Conduct, which shall state as follows:

 

Rule 1.17. Disclosure of Information to the Client

(a) A lawyer shall inform a client at the time of the client's engagement of the lawyer or at any time subsequent to the engagement of the lawyer if the lawyer does not maintain professional liability insurance in the amounts of at least one hundred thousand dollars per occurrence and three hundred thousand dollars in the aggregate or if the lawyer's professional liability insurance ceases to be in effect. The notice shall be provided to the client on a separate form set forth following this rule and shall be signed by the client.

(b) A lawyer shall maintain a copy of the notice signed by the client for five years after termination of representation of the client.

(c) The notice required by paragraph (a) of this rule shall not apply to a lawyer who is engaged in either of the following:

  (1) Rendering legal services to a governmental entity that employs the lawyer;

  (2) Rendering legal services to an entity that employs the lawyer as in-house counsel.

(d) Transitional period. Within thirty days after March 1, 2003, which is the effective date of this rule, a lawyer who does not have professional liability insurance in the amounts set forth in paragraph (a) and who is not exempt from the notice requirements under paragraph (c) shall provide notice to each of the lawyer's clients. The notice shall be provided to each client on a separate form set forth following this rule and shall be signed by the client.

 

NOTICE TO CLIENT

Pursuant to Rule 1.17 of the New Hampshire Rules of Professional Conduct, I am required to notify you that I do not maintain professional liability (malpractice) insurance of at least $100,000 per occurrence and $300,000 in the aggregate.

_____________________________

(Attorney's signature)

 

CLIENT ACKNOWLEDGEMENT

I acknowledge receipt of the notice required by Rule 1.17 of the New Hampshire Rules of Professional Conduct that [insert attorney's name] does not maintain professional liability (malpractice) insurance of at least $100,000 per occurrence and $300,000 in the aggregate.

____________________________

(Client's signature)

Date: _______________________