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THE NEW HAMPSHIRE RULES OF CRIMINAL PROCEDURE

 

III.  CHARGING DOCUMENTS IN SUPERIOR COURT

 

Rule 7. Definitions

(a)  Superior Court Complaint.  The initiating charging document filed in superior court for felonies and misdemeanors over which the superior court has jurisdiction.

(b)  Indictment. Felonies and misdemeanors punishable by a term of imprisonment exceeding one year shall be charged by an indictment. Misdemeanors punishable by a term of imprisonment of one year or less may be charged in an indictment. An indictment shall be returned by a grand jury and shall be prosecuted in superior court.

(c)  Misdemeanor Appealed to Superior Court.  When a misdemeanor conviction is appealed to superior court, the charging document is the complaint that was filed in the circuit court-district division.

 

Rule 8. The Grand Jury

(a) Summoning Grand Juries.  The superior court shall order a grand jury to be summoned and convened at such time and for such duration as the public interest requires, in the manner prescribed by law. The grand jury shall consist of no fewer than twelve nor more than twenty-three members. The grand jury shall receive, prior to performing its duties, instructions relative thereto and shall be sworn in accordance with law. Such instructions may be given by a justice of the superior court, by utilization of a prerecorded audio or video presentation created for this purpose, or by a combination of use of a recording and instruction by a justice.

(b) Conduct of Proceedings

(1) State's counsel or the foreperson of the grand jury shall swear and examine witnesses. The State shall present evidence on each matter before the grand jury.

(2) The grand jury’s role is to diligently inquire into possible criminal conduct. The grand jury may also consider whether to return an indictment on a felony or misdemeanor.

(3) Upon request, a grand jury witness shall be given reasonable opportunity to consult with counsel.

(4) If twelve or more grand jurors find probable cause that a felony or misdemeanor was committed, the grand jury should return an indictment.

(5) Upon application of the Attorney General or upon the court's own motion, a justice of the superior court may authorize a stenographic record of the testimony of any witness before a grand jury to be taken by a sworn and qualified reporter. Disclosure of such testimony may be made only in accordance with Supreme Court Rule 52.

(6) A grand juror, interpreter, stenographer, typist who transcribes recorded testimony, attorney for the State, or any person to whom disclosure is made under paragraph (C) below, shall not disclose matters occurring before the grand jury, except:

(A) As provided by the Supreme Court rules;

(B) To an attorney for the State for use in the performance of such attorney's duties;

(C) To such state, local or federal government personnel as are deemed necessary by an attorney for the State to assist in the performance of such attorney's duty to enforce state criminal law;

(D) When so directed by a court in connection with a judicial proceeding;

(E) When permitted by the court at the request of an attorney for the State, when the disclosure is made by an attorney for the State to another grand jury in this state; or

(F) When permitted by a court at the request of an attorney for the State upon a showing that such matters may disclose a violation of federal criminal law or the criminal law of another state, to an appropriate official of the federal government or of such other state or subdivision of a state, for the purpose of enforcing such law.

(c) Notice to Defendant. If the grand jury returns a no true bill after consideration of a charge against a defendant who is incarcerated or is subject to bail conditions, the court shall immediately notify the defendant or counsel of record.  If the grand jury returns an indictment, the defendant shall be notified by mail unless the court issues a capias for the defendant’s arrest.

(d) Indictment.

(1)  Case initiated in Circuit Court-District Division.  The superior court will dismiss without prejudice and vacate bail orders in all cases in which an indictment has not been returned ninety days after the matter is bound over, unless, prior to that time, the prosecution files a motion seeking an extension of time and explaining why the extension is necessary.

(2)  Case initiated in Superior Court.  The superior court will dismiss without prejudice and vacate all bail orders in such cases in which an indictment has not been returned within 90 days of the complaint being filed, unless, prior to that time, the prosecution files a motion seeking an extension of time and explaining why the extension is necessary, and the court rules on the motion.

Comment

Rule (b)(6) restates the traditional rule of grand jury secrecy. This paragraph is based on Federal Rule of Criminal Procedure 6 and prohibits grand jurors, interpreters, stenographers, typists who transcribe recorded testimony or an attorney for the State, or any person to whom disclosure is made under the rule, from disclosing information received except under a few narrow circumstances. It is important, however, to note that this rule does not bar a witness from later revealing the substance of the witness’s testimony before a grand jury.

 


Rule 9. Waiver of Indictment

An offense that is punishable by a term of imprisonment exceeding one year may be prosecuted by a complaint with a waiver of indictment. Waiver of indictment is not permitted for offenses punishable by death. If the charge proceeds by a waiver of indictment, the defendant shall be informed of the nature of the charge and the right to have the charge presented to a grand jury. The waiver must be in open court and on the record.


 

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