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Criminal Rules Table of Contents

 

THE NEW HAMPSHIRE RULES OF CRIMINAL PROCEDURE

 

II. PRELIMINARY PROCEEDINGS

 

Rule 3. Complaint, Arrest Warrant, Arrest, Summons and Release Prior to Arraignment

(a) Complaint. The complaint is a written statement of the essential facts constituting the offense charged. A circuit court-district division complaint charging a class A misdemeanor or felony shall be signed under oath, provided that a complaint filed by a police officer, as defined in RSA 188-F:23, I for a violation-level offense or a class B misdemeanor shall not require an oath.  A superior court complaint charging a misdemeanor or felony is not required to be signed under oath.  Unless otherwise prohibited by law, the court may permit a complaint to be amended if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced.

(b) Issuance of Arrest Warrant. If it appears from a sworn application for an arrest warrant that there is probable cause to believe that an offense has been committed in the State of New Hampshire, and that the defendant committed the offense, an arrest warrant for the defendant may be issued.

(c) Arrest. When a person is arrested with a warrant, the complaint, and the return form documenting the arrest shall be filed in a court of competent jurisdiction without unreasonable delay.  If a person is arrested without a warrant, the complaint shall be filed without delay and, if the person is detained in lieu of bail, an affidavit that complies with Gerstein v. Pugh, 420 U.S. 103 (1975) must be filed.

(d) Summons. When the complaint charges a felony, a summons may not be issued. In any case in which it is lawful for a peace officer to make an arrest for a violation or misdemeanor without a warrant, the officer may instead issue a written summons in hand to the defendant.  In any other case in which an arrest warrant would be lawful, upon the request of the State, the person authorized by law to issue an arrest warrant may issue a summons. A summons shall be in the form required by statute.  See RSA 594:14.  If a defendant fails to appear as required by the summons, a warrant may be issued. A person who fails to appear in response to a summons may be charged with a misdemeanor as provided by statute. Upon issuance of a summons, the complaint and summons shall be filed with a court of competent jurisdiction without unreasonable delay but no later than 14 days prior to the date of arraignment.

 

Rule 4. Initial Proceedings in Circuit Court-District Division

(a)  Filing of Complaint.

(1)  If the defendant is not detained prior to arraignment, the complaint shall be filed no later than fourteen (14) days prior to the date of arraignment.

(2)  If the defendant is detained pending arraignment, the complaint shall be filed prior to commencement of the arraignment.

(3)  In all cases where the defendant may enter a plea by mail and a summons has been issued to the defendant and in which the defendant has entered a plea of “not guilty” with the Division of Motor Vehicles, if the Division of Motor Vehicles has not received the complaint directly from the police agency and has forwarded the defendant’s “not guilty” plea to the designated court, the complaint must be filed with the court not later than fifteen days from the date of the court’s written notice to the law enforcement agency directing that the complaint be filed.  Any complaint filed with the court after the filing date has passed shall be summarily dismissed by the court unless good cause is shown.

(4)  In all cases alleging, as a violation level offense, a violation of RSA 318-B:2-c, II, III or IV where the defendant may enter a plea by mail directly with the court, if the defendant has entered a plea of “not guilty” or if the defendant has entered a plea of “guilty” or “no contest,” the complaint must be filed with the court not later than fifteen days from the date of the court’s written notice to the law enforcement agency directing that the complaint be filed.  Any complaint filed with the court after the filing date has passed shall be summarily dismissed by the court unless good cause is shown.

(b)  Initial Appearance.

(1)  If the defendant is not detained prior to arraignment, his or her arraignment shall be scheduled no earlier than thirty-five (35) days from the time of his or her release with a written summons or by the bail commissioner, unless otherwise required by law, by administrative order or requested by a party.  The circuit court shall use its best efforts to schedule a single arraignment day each week for defendants who are not incarcerated.

(2)  If the defendant is detained pending arraignment, his or her arraignment shall be scheduled within 24 hours, excluding weekends and holidays.

(c)  Waiver of Arraignment.

(1) A defendant charged with a class A misdemeanor or a felony may waive arraignment only if he or she is represented by counsel and files with the court prior to the date of arraignment a written waiver signed by the defendant and his or her counsel. If not signed by the defendant, counsel for the defendant may certify the following:

(A) That the charges and potential penalties have been discussed with the defendant;

(B) That the personal information of the defendant is accurate;

(C) That the defendant has been advised and understands that existing bail orders remain in effect pending disposition of the case or modification by the court; and

(D) That the defendant understands that he is entitled to an arraignment conducted by the Court but is waiving that arraignment.

(2) A defendant charged with a class B misdemeanor or violation for which an appearance is mandated may waive arraignment if he or she files with the court prior to the date of arraignment a written waiver signed by the defendant.

(d)  In cases where the defendant is not detained, arraignment may be continued without the personal appearance of the defendant or the entry of an appearance by counsel upon timely motion made in writing if the court is satisfied with the terms of bail. However, absent an appearance by counsel on behalf of the defendant, no case in which a defendant is charged with a class A misdemeanor or felony shall be continued for arraignment to a date less than thirty (30) days before trial.

(e) Gerstein Determination. If the defendant was arrested without a warrant and is held in custody, or if the defendant was arrested pursuant to a warrant that was not issued by a judge and is held in custody, the court shall require the state to demonstrate probable cause for arrest.  This determination may be made at the circuit court-district division arraignment, but in any event, must be made within forty-eight hours of the defendant's arrest, Saturdays, Sundays and holidays excluded.

(1) The state may present proof by way of sworn affidavit or by oral testimony. Oral testimony, if submitted, shall be under oath and recorded.

(2) The defendant does not have the right to be present, present evidence or cross-examine witnesses. The proceeding shall be non-adversarial. 

(3) The court shall make a written finding on the issue of probable cause. The finding and the affidavit shall become part of the public record, shall be available to the defendant and must be filed with the appropriate court on the next business day.

(4) If a motion to seal the affidavit has been filed with the request for a Gerstein determination, the court shall rule on the motion to seal when ruling on the issue of probable cause.

(f)  Copy of Complaint. No later than at the time of the first appearance in court, the defendant shall be provided with a copy of the complaint.

(g)  Arraignments on Misdemeanors and Violations. The following procedures apply to arraignments on misdemeanors and violations.

(1) Any misdemeanor complaint filed with the court without specification of the classification shall be presumed to be a class B misdemeanor unless specified by law or unless the State files a notice of intent to seek class A misdemeanor penalties before or at the time of arraignment. Such notice shall be on a court-approved form.

(2) If the defendant is charged with a misdemeanor or violation, the court shall inform the defendant of the nature of the charges, the possible penalties, the right to retain counsel, and in class A misdemeanor cases, the right to have an attorney appointed by the court pursuant to Rule 5 if the defendant is unable to afford an attorney. The defendant shall be asked to enter a plea of guilty, not guilty, or, with the consent of the court, nolo contendere. If a defendant refuses to plead or if a court refuses to accept a plea of guilty, the court shall enter a plea of not guilty. Upon entry of a plea of not guilty, the case shall be scheduled for trial.

(h) Circuit Court-District Division Appearance on Felonies. If the defendant is charged with a felony, the defendant shall not be called upon to plead.  The court shall inform the defendant of the nature of the charges, the possible penalties, the privilege against self-incrimination, the right to retain counsel, and the right to have an attorney appointed by the court pursuant to Rule 5 if the defendant is unable to afford an attorney. The court shall inform the defendant of the right to a probable cause hearing that will be conducted pursuant to Rule 6.  If the defendant is represented by counsel, and if the State and defense notify the court that each is satisfied with the terms of bail, the arraignment may be continued until the probable cause hearing.

(i)  The court may issue a bench warrant for the arrest of any defendant who fails to appear on the designated date for his appearance, or who fails to answer by waiver or who fails to comply with any order of the Court.

Comment

      Rule 4(e) provides for a detention hearing to satisfy the Fourth Amendment requirements as set forth in County of Riverside v. McLaughlin, 111 S. Ct. 1661 (1991), and Gerstein v. Pugh, 420 U.S. 103 (1975).

 

Rule 5. Appearance and Appointment of Counsel in Circuit Court-District Division and Superior Court

(a) In any case where a person is arrested for a class A misdemeanor and/or felony and appears before a bail commissioner, prior to the defendant's release or detention, the bail commissioner shall provide the defendant with oral and written notice that, if he or she is unable to afford counsel, counsel will be appointed prior to that arraignment, if requested, subject to the state's right of reimbursement for expenses related thereto.

     In any case where a person arrested for a class A misdemeanor is released with a written summons, the summons shall provide the defendant with written notice that, if he or she is unable to afford counsel, counsel will be appointed prior to the arraignment, if requested, subject to the state's right of reimbursement for expenses related thereto. The summons shall also provide the person with written notice of the process for obtaining court-appointed counsel.

(b) In any case in which a defendant appears before a bail commissioner pursuant to paragraph a, the defendant shall also be provided with a financial affidavit in order to apply for counsel at arraignment. The bail commissioner shall request the defendant to complete the financial affidavit prior to his or her release or detention, in which case the bail commissioner shall forward the affidavit to the court or the defendant may return the affidavit directly to the court in which his or her arraignment is scheduled. If the defendant is financially eligible, counsel shall be appointed within 24 hours, excluding weekends and holidays, from the date of the receipt of the request by the court but not later than the filing of the complaint. The court shall inform appointed counsel immediately of the appointment (1) by telephone, facsimile or electronically if the defendant is detained or (2) by telephone, electronically or by first-class mail if the defendant is not detained.

Nothing herein shall prevent a defendant charged with a class A misdemeanor or felony and who is unable to afford counsel from requesting counsel at any time after arrest by completing a financial affidavit and submitting it to the court having jurisdiction over the matter. The court shall act on the request for counsel within 24 hours, excluding weekends and holidays, from the date the request is submitted but not later than the filing of the complaint. If the defendant is financially eligible, the court shall inform counsel immediately of the appointment (1) by telephone, facsimile or electronically if the defendant is detained or (2) by telephone, electronically or by first-class mail if the defendant is not detained.

(c) In any case where the defendant is charged with a class A misdemeanor or felony and appears at arraignment without counsel, the court shall inform the defendant, in writing or on the record, of the offense with which he is charged and the possible penalties, of his or her privilege against self-incrimination, his or her right to be represented by counsel throughout the case, and that if he or she is unable to afford counsel, counsel will be appointed, if requested, subject to the state's right to reimbursement for expenses related thereto.

Except as provided in subsection (f) or (g) of this rule, unless the defendant waives the presence of counsel at the arraignment in writing or on the record, the court shall take no other action at the arraignment aside from (1) advising the defendant of the charges against him or her and entering a pro forma plea of not guilty (or no plea in a felony case if filed in the circuit court) on the defendant's behalf, and (2) informing the defendant that the issue of bail and any other issue requiring an adversary hearing will not be addressed until his or her counsel is present.

(d) If a defendant who is not detained indicates a financial inability to obtain counsel and a desire for appointed counsel, the court shall instruct the defendant to complete a financial affidavit prior to leaving the courthouse and, if eligible, counsel shall be appointed no later than 24 hours from the date of the request. The court shall inform counsel of the appointment as soon as reasonably possible by telephone, facsimile or electronically. A bail hearing shall be scheduled at the request of the defendant.

(e) If a defendant who is detained indicates a financial inability to obtain counsel and a desire for appointed counsel, the court shall instruct the defendant to complete a financial affidavit immediately and, if eligible, counsel shall be appointed immediately. The court shall inform counsel of the appointment immediately in person, if present, or by telephone if counsel for the detained defendant is unavailable at the court at the time of the arraignment. A bail hearing, at which the defendant's counsel is present, shall be held within 24 hours of a written or oral request for same made by the defendant's counsel, weekends and holidays excluded.

(f) Nothing in this rule shall prevent the court from reducing a detained or non-detained defendant's bail or conditions of bail without his or her counsel present, but if the state opposes such reduction, it shall have the right to be heard in argument before the court makes a decision. Any such reduction shall be without prejudice to the defendant's right to a further bail hearing, with counsel present, as specified in subsections (d) or (e) of this rule.

(g) Nothing in this rule shall prevent the court from increasing a detained or non-detained defendant's bail or conditions of bail without the presence of counsel when the court makes a specific finding that such increase is necessary to reasonably assure the appearance of the defendant as required or that release without such increase will endanger the safety of the defendant or any other person or the community. Any such increase in bail or conditions of bail shall be without prejudice to the defendant's right to a further bail hearing, with counsel present, as specified in subsections (d) or (e) of this rule.

(h) Withdrawal. Except as is provided in (i) below, no attorney shall be permitted to withdraw an appearance after the case has been assigned for trial or hearing, except upon motion granted by the court for good cause shown, and on such terms as the court may order. Any motion to withdraw filed by counsel shall set forth the reasons for the motion but shall be effective only upon approval of the court. A factor which may be considered by the court in determining whether good cause to withdraw has been shown is the client's failure to pay for the attorney's services. Whenever the court approves the withdrawal of appointed defense counsel, the court shall appoint substitute counsel forthwith and notify the defendant of said appointment.

(i) Withdrawal of Appointed Counsel. If appointed counsel in a criminal matter must withdraw due to a conflict of interest as defined by Rules 1.7(a), 1.9(a) and (b), and/or 1.10 (a), (b), and (c) of the New Hampshire Rules of Professional Conduct, counsel shall forward a Notice of Withdrawal to the court and substitute counsel shall be appointed forthwith. Court approval of a withdrawal shall not be required in this circumstance unless the Notice of Withdrawal is filed less than twenty days from the date of a trial, in which case court approval shall be required. Automatic withdrawal shall not be allowed and court approval shall be required if the basis for withdrawal is a breakdown in the relationship with the client, the failure of the client to pay legal fees, or any other conflict not specifically set forth in Rules 1.7(a), 1.9(a) and (b), and/or 1.10(a), (b), and (c) of the New Hampshire Rules of Professional Conduct.

(j)   Automatic Withdrawal of Court-Appointed Counsel.  In all criminal cases, the appearance of counsel for the defendant shall be deemed to be withdrawn thirty days after sentence is imposed unless the sentence imposed was a deferred sentence or unless a post-sentencing motion is filed within said thirty-day period.  Where a deferred sentence is imposed, the appearance of counsel for the defendant shall be deemed to be withdrawn thirty days after the deferred sentence is brought forward or suspended.  Where a post-sentencing motion is filed within thirty days after imposition of sentence, the appearance of counsel for the defendant shall be deemed to be withdrawn thirty days after the court rules on said motion.  Provided, however, that in any criminal case in which an appeal to the supreme court is filed, trial counsel shall remain responsible for representing the defendant in the supreme court pursuant to Supreme Court Rule 32.

(k)  Continuity of Counsel in Circuit and Superior Courts.  Where a defendant in a criminal case has filed a financial affidavit and has been determined to be eligible for court-appointed counsel in the circuit court, the defendant shall not be required to file a new financial affidavit upon the appeal or transfer of the same case to the superior court unless facts are brought to the court’s attention indicating that there has been a substantial change in the defendant’s financial circumstances. Notwithstanding subsection (j) of this rule, when counsel appears for a defendant in a criminal case in the circuit court, said appearance shall be deemed to continue upon any appeal or transfer of the same case to the superior court and until the case is finally disposed of in the trial courts.

(l)  Multiple Representation

(1) A lawyer shall not represent multiple defendants if such representation would violate the Rules of Professional Conduct.

(2) A lawyer shall not be permitted to represent more than one defendant in a criminal action unless:

(A) The lawyer investigates the possibility of a conflict of interest early in the proceedings and discusses the possibility with each client; and

(B) The lawyer determines that a conflict is highly unlikely; and

(C) The lawyer notifies the court of the multiple representation and a hearing on the record is promptly held. The court shall inquire into all relevant facts, including, but not limited to, the following:

(i) Evidence of the lawyer's discussion of the matter with each client;

(ii) Evidence of each client's informed consent to mulitple representation based on the client's understanding of the entitlement to conflict-free counsel;

(iii) A written or oral waiver by each client of any potential conflict arising form the multiple repesentation; and

 (D) The court finds by clear and convincing evidence that the potential for conflict is very slight.

(m)  Counsel of Record; Bail. An attorney shall not post bail or assume any bail obligations in a case in which the attorney is counsel of record.

 

Rule 6. Probable Cause Hearing

(a) Circuit Court-District Division Probable Cause Hearing

(1) Jurisdiction. A probable cause hearing shall be scheduled in accordance with this rule in any case which is beyond the trial jurisdiction of the circuit court-district division and in which the defendant has not been indicted.

(2) Scheduling. The court shall hold a probable cause hearing within ten days following the arraignment if the defendant is in custody. The court shall hold the hearing within twenty days of the arraignment if the defendant is not in custody. The probable cause hearing shall not be held if the defendant is notified before the hearing of an indictment on the charge that would have been the subject of the hearing or if the clerk of the Circuit Court receives reliable information that the defendant has been indicted on the charge which would have been the subject of the hearing.  A probable cause hearing may be adjourned for reasonable cause.

(3)  Notice to Defendant.  The court shall inform the defendant of the complaint, the right to counsel, and the right to a probable cause hearing.  The court shall also tell the defendant that there is no obligation to make a statement and that any statement may be used against the defendant. 

(4) Evidence. The Rules of Evidence shall not apply at the hearing. The defendant may cross-examine adverse witnesses, testify and introduce evidence.  If the defendant elects to be examined, the defendant shall be sworn, but it shall always be a sufficient answer that the defendant declines to answer the question; and if at any time the defendant declines to answer further, the examination shall cease.  The parties may request sequestration of the witnesses.

(5) Finding of Probable Cause. If the court determines that there is probable cause to believe that a charged offense has been committed and the defendant committed it, the court shall hold the defendant to answer in superior court.

(6) Finding of No Probable Cause. If the court determines that there is no probable cause to believe that a charged offense has been committed or that the defendant committed it, the court shall dismiss the complaint and discharge the defendant. The discharge of the defendant shall not preclude the State from instituting a subsequent prosecution for the same offense or another offense. 

(7) Waiver. A defendant may waive the right to a probable cause hearing.  The waiver shall be in writing.

(8)  Upon indictment or finding of probable cause, the complaint shall be so marked, and the clerk of the Circuit Court shall thereafter send to the clerk of the Superior Court any bail or bond pertaining thereto, along with a copy of such complaint where possible.

(b)  Superior Court

(1) A defendant may challenge probable cause during the period from arrest to indictment by motion requesting a probable cause hearing under the following conditions:

(A) A complaint has been filed in superior court;

(B) The defendant has not been indicted by the grand jury; and

(C) The defendant asserts a claim that a material element of the charge is without factual basis or that the charge is legally insufficient to constitute a felony offense.

(2) Upon review of the motion, the court shall determine whether a hearing is necessary to assist the court in its determination of probable cause.  A request for a hearing shall not be unreasonably denied.  If a hearing is scheduled, it shall be held as soon as the court docket permits, but in any event within 10 days of filing of the motion if the defendant is incarcerated and within 20 days of the filing of the motion if the defendant is not incarcerated.

(3) A probable cause hearing shall be scheduled:

(A) If an arrest is supported by an affidavit that was filed under seal, and the affidavit remains under seal at the time of the request for a probable cause hearing, or

(B) If a court determines discovery should not be provided in accordance with the timelines set forth in RSA 592-B:6, II and the defendant has not been indicted.

(4) If a hearing is held, the state shall bear the burden of proving there is probable cause to believe that a felony has been committed and that the person charged has committed it.  At the hearing, the accused may cross-examine witnesses and present evidence.

(5) Finding of Probable Cause.  If the court determines that there is probable cause to believe that a charged offense has been committed and the defendant committed it, the court shall hold the defendant to answer for action by the grand jury.

(6) Finding of No Probable Cause. If the court determines that there is no probable cause to believe that a charged offense has been committed or that the defendant committed it, the court shall dismiss the complaint and discharge the defendant. The discharge of the defendant shall not preclude the state from instituting a subsequent prosecution for the same offense or another offense.


Comment

A preliminary examination allows a defendant to challenge the decision of the prosecuting authorities to limit the defendant’s liberty pending consideration of the matter by a grand jury. State v. Arnault, 114 N.H. 216 (1974); Jewett v. Siegmund, 110 N.H. 203 (1970). The preliminary examination is not a trial on guilt or innocence.  It is merely an examination to determine if the State can establish that there is enough evidence to proceed to trial. In essence, it is a hearing to determine whether probable cause exists. See State ex rel McLetchie v. Laconia Dist. Court, 106 N.H. 48 (1964).

Courts and parties should note that RSA 596-A:3 requires the court to caution a defendant about the right to counsel and the right to remain silent.

 

 


 

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