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Criminal Rules Table of Contents

 

THE NEW HAMPSHIRE RULES OF CRIMINAL PROCEDURE

 

IV.  ARRAIGNMENT, PLEAS AND PRETRIAL PROCEEDINGS

 

Rule 10. Arraignment in Superior Court

(a) Arrest on a Charge Originating in Superior Court. Any person who is arrested on a warrant issued pursuant to an indictment or complaint and who is not released on bail set by a bail commissioner shall be taken before the superior court without unnecessary delay, but in any event within twenty-four hours of arrest, Saturdays, Sundays, and holidays excepted. Such persons shall be entitled to a bail hearing at that time. If the person is released prior to being taken before the superior court, the person shall be directed to appear no more than twenty days after arrest, in superior court for arraignment at a stated time and date.

(b) 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, by affidavit, probable cause for arrest. This determination must be made within forty-eight hours of the defendant's arrest Saturday, Sunday and holidays excepted.

(1) The court shall make a written finding on the issue of probable cause. The written finding and 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.

(2) 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.

(c) Copy of complaint. The complaint shall be filed in Superior Court by the county attorney, attorney general or their designee 48 hours prior to arraignment, for non-incarcerated defendants, and no later than arraignment for incarcerated defendants. The defendant shall be provided with a copy of the complaint.

(d) Arraignment. Arraignment shall be conducted in open court. The court shall read the indictment or complaint to the defendant or state to the defendant the substance of the charge. If the defendant appears without counsel, the court shall inform the defendant of 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 defendant shall be called upon to plead to the charge, unless unrepresented by counsel, in which case a plea of not guilty shall be entered on the defendant's behalf.  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 a dispositional conference. 

(e) Waiver of Arraignment. A defendant who is represented by an attorney may enter a plea of not guilty and waive formal arraignment as follows. Before the arraignment hearing, the attorney shall file a written statement signed by the defendant certifying that the defendant has reviewed a copy of the indictment or complaint. The attorney shall further certify that the defendant read the indictment or complaint or that it was read to the defendant, and that the defendant understands the substance of the charge and the possible penalties, waives formal arraignment, and pleads not guilty to the charge.

(f) Arraignment on Misdemeanor Appeal. No arraignment shall be held on a misdemeanor appeal. Upon the filing of a misdemeanor appeal in superior court, a hearing notice consistent with these rules shall be issued. The date of the issuance of a hearing notice shall be the equivalent of an arraignment and entry of not guilty plea for the purpose of determining deadlines.

(g) Unclassified Misdemeanor. Any misdemeanor 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 on or before the date of arraignment. Such notice shall be on a court-approved form.

Rule 11. Pleas

(a) Circuit Court-District Division

(1) Violations. A plea of guilty or nolo contendere to a violation may be accepted by the court without formal hearing unless the violation carries a statutorily enhanced penalty upon a subsequent conviction subjecting the defendant to incarceration.

(2) Plea by Mail. In all cases in which a defendant may enter a plea by mail pursuant to RSA 262:44, the defendant may enter a plea by mail in accordance with the procedures provided by RSA 502-A:19-b.

(3) Misdemeanors and Enhanced Violations. Before accepting a plea of guilty or, with the consent of the court, a plea of nolo contendere, to any misdemeanor, or to a violation that requires the defendant to appear for arraignment and that carries a statutorily enhanced penalty upon a subsequent conviction, the court shall personally address the defendant and determine on the record that:

(A) There is a factual basis for the plea;

(B) The defendant understands the crime charged and the factual basis of that charge;

(C) The defendant’s plea is knowing, intelligent and voluntary;

(D) The defendant’s plea is not the result of any unlawful force, threats or promises; and 

(E) The defendant understands and waives the statutory and constitutional rights as set forth in the Acknowledgement and Waiver of Rights form.

(4) Acknowledgment and Waiver of Rights Forms. The appropriate Acknowledgment and Waiver of Rights form shall be read and signed by the defendant, counsel, if any, and the presiding justice.

(b) Superior Court

(1) Deadlines for Filing Plea Agreements. The court may establish deadlines for the filing of plea agreements.

(2) Pleas. Before accepting a plea of guilty or, with the consent of the court, a plea of nolo contendere, to any felony, misdemeanor, or violation that carries a statutorily enhanced penalty upon a subsequent conviction, the court shall personally address the defendant and determine on the record that:

(A) There is a factual basis for the plea;

(B) The defendant understands the crime charged and the factual basis of that charge;

(C) The defendant’s plea is knowing, intelligent and voluntary;

(D) The defendant’s plea is not the result of any unlawful force, threats or promises; and

(E) The defendant understands and waives the statutory and constitutional rights as set forth in the Acknowledgement and Waiver of Rights form.

(3) Acknowledgment and Waiver of Rights Forms. The appropriate Acknowledgment and Waiver of Rights form shall be read and signed by the defendant, counsel, if any, and the presiding justice.

(c) Negotiated Pleas Circuit Court-District Division and Superior Courts

(1) Permissibility. If the court accepts a plea agreement, the sentence imposed by the court shall not violate the terms of the agreement.

(2) Court's Rejection of Negotiated Plea. If the court rejects a plea agreement, the court shall so advise the parties, and the defendant shall be afforded the opportunity to withdraw the plea of guilty or nolo contendere.

(3) Sentence Review.  See Rule 29(k)(14)(c).

Comment

This rule should be read in conjunction with Rule 29 regarding sentencing.

Rule 11(a)(3) and (a)(4), applicable to circuit court pleas, and Rule 11(b)(2) and (b)(3), applicable to superior court pleas, address the colloquy required between the court and defendant in cases where incarceration upon conviction is possible. In sum, these provisions require the record to reflect that a factual basis for the charge exists; the defendant understands the crime charged and its factual basis; the plea is knowing, intelligent, and voluntary; the plea is not the result of threats or promises; and the defendant appreciates the constitutional rights being waived as part of the plea. In practice, the factual basis for the charge referred to in Rule 11(a)(3)(A) and (b)(2)(A) is provided by the State in its offer of proof during the plea hearing.  The rule reflects the constitutional requirement that the trial court affirmatively inquire, on the record, into the defendant's volition in entering the plea. Boykin v. Alabama, 395 U.S. 238 (1969); Richard v. MacAskill, 129 N.H. 405 (1987). For a plea to be knowing, intelligent, and voluntary, the defendant must understand the essential elements of the crime to which a guilty plea is being entered. State v. Thornton, 140 N.H. 532, 537 (1995). To find that a plea has been intelligently made, the court must fully apprise the defendant of the consequences of the plea and the possible penalties that may be imposed. State v. Roy, 118 N.H. 2 (1978); State v. Manoly, 110 N.H. 434 (1974). A defendant need not be apprised, however, of all possible collateral consequences of the plea. State v. Elliott, 133 N.H. 190 (1990); see State v. Chace, 151, N.H. 310, 313 (2004) (defendant need not be advised that loss of license will be collateral consequence of pleading guilty to DWI). In Padilla v. Kentucky, 559 U.S. 356 (2010), the Supreme Court made clear counsel’s obligation to ensure that a defendant understands the deportation implications, if any, of a conviction. If the record does not reflect that a plea is voluntarily and intelligently made, it may be withdrawn as a matter of federal constitutional law. Boykin, 395 U.S. at 238.

 

Rule 12. Discovery

 

     (a) Circuit Court-District Division

(1) At the defendant's first appearance before the court, the court shall inform the defendant of his or her ability to obtain discovery from the State. Upon request, in misdemeanor and violation-level cases, the prosecuting attorney shall furnish the defendant with the following:

(A) A copy of records of statements or confessions, signed or unsigned, by the defendant, to any law enforcement officer or agent;

(B) A list of any tangible objects, papers, documents or books obtained from or belonging to the defendant; and

(C) A statement as to whether or not the foregoing evidence, or any part thereof, will be offered at the trial.

        (2) Not less than fourteen days prior to trial, the State shall provide the defendant with:

(A) a list of names of witnesses, including experts and reports, and a list of any lab reports, with copies thereof, it anticipates introducing at trial;

(B) 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); and

(C) notification of the State's intention to offer at trial pursuant to 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.

(3) Not less than seven days prior to trial, the defendant shall provide the State with a list of names of witnesses, including experts and reports, and a list of any lab reports, with copies thereof, the defendant anticipates introducing at trial.

(4)  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:

(A) ordering the party to provide the discovery not previously provided;

(B) granting a continuance of the trial or hearing;

(C) prohibiting the party from introducing the evidence not disclosed;

(D) assessing the costs and attorneys fees against the party or counsel who has violated the terms of this rule.

     (b) Superior Court. The following discovery and scheduling provisions shall apply to all criminal cases in the superior court unless otherwise ordered by the presiding justice.          

(1) Pretrial Disclosure by the State. If a case is initiated in superior court, the State shall provide the materials specified in RSA 592-B:6.  In addition, within forty-five calendar days after the entry of a not guilty plea by the defendant, the State shall provide the defendant with the materials specified below.  If a case is originated in circuit court-district division, within ten calendar days after the entry of a not-guilty plea by the defendant, the State shall provide the defendant with the materials specified below.

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

(B) 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.

(C) The defendant's prior criminal record.

(D) Copies of or access to all books, papers, documents, photographs, tangible objects, buildings or places that are intended for use by the State as evidence at trial or at a pretrial evidentiary hearing.

(E) 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).

(F) Notification of the State's intention to offer at trial pursuant to 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.

          (2) Pretrial Disclosure by the Defendant

Not less than sixty calendar days prior to jury selection if the case originated in Superior Court or not less than thirty calendar days prior to jury selection if the case originated in Circuit Court-District Division or, in the case of a pretrial evidentiary hearing, not less than three 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 whom the defendant anticipates calling as a witness at the trial or hearing, as well as a summary of each such expert's qualifications.

(3) Dispositional Conferences.  The purpose of the dispositional conference is to facilitate meaningful discussion and early resolution of cases.

(A) Unless the State does not intend to make a plea offer, in which case it shall so advise the defendant within the time limits specified herein, the State shall provide a written offer for a negotiated plea, in compliance with the Victim’s Rights statute, RSA 21-M:8-k, to the defense, no less than fourteen (14) days prior to the dispositional conference.  The defense shall respond to the State’s offer no later than ten (10) days after receipt.

(B)  The judge shall have broad discretion in the conduct of the dispositional conference. 

(C) The State, 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 knowledge of the facts and the ability to negotiate a resolution of the case. Counsel shall be prepared to discuss the impact of known charges being brought against the defendant in other jurisdictions, if any.

(D) If a plea agreement is not reached at the dispositional conference, the matter shall be set for trial. The court may also schedule hearings on any motions discussed during the dispositional conference.  Counsel shall be prepared to discuss their availability for trial or hearing as scheduled by the court.

(E) 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.

          (4) Exchange of Information Concerning Trial Witnesses

(A) Not less than twenty calendar days prior to the final pretrial conference or, in the case of a pretrial evidentiary hearing, not less than three 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 (b)(1) of this rule, the State shall 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 relevant experience, 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.

(B) Not later than ten calendar days before the final pretrial conference or, in the case of a pretrial evidentiary hearing, not less than two 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 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 relevant experience, 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.

               (C) 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.

   (5) 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 (A) notification that the statement or report in question has been redacted and (B) (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.

    (6) Motions Seeking Additional Discovery. Subject to the provisions of paragraph (b)(8), the discovery mandated by paragraphs (b)(1), (b)(2), and (b)(4) 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)(1), (b)(2) or (b)(4) of this rule shall be accepted for filing by the clerk of court unless said motion contains a specific recitation of: (A) the particular discovery materials sought by the motion; (B) the efforts which the movant has made to obtain said materials from the opposing party without the need for filing a motion; and (C) 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 (b)(4), all motions seeking additional discovery, including motions for a bill of particulars and for depositions, shall be filed within sixty calendar days if the case originated in Superior Court, or within forty-five calendar days if the case originated in Circuit Court – District Division 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 (b)(4) shall be filed no later than seven calendar days after such disclosure occurs.

  (7) 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 rule are generated or as a party learns that discovery previously provided is incomplete, inaccurate, or misleading.

  (8) 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.

  (9) 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: (A) ordering the party to provide the discovery not previously provided; (B) granting a continuance of the trial or hearing; (C) prohibiting the party from introducing the evidence not disclosed; and (D) assessing costs and attorney’s fees against the party or counsel who has violated the terms of this rule.

 Rule 13. Discovery Depositions

(a) By Agreement. In criminal cases either party may take the deposition of any witness, other than the defendant, by agreement of the parties and with the assent of the witness, except as prohibited by statute.

(b) Finding by Court. The court in its discretion may permit either party to take the deposition of any witness, except the defendant, in any criminal case upon a finding by a preponderance of the evidence that such deposition is necessary:

  (1) To preserve the testimony of any witness who is unlikely to be available for trial due to illness, absence from the jurisdiction, or reluctance to cooperate; or

          (2) To ensure a fair trial, avoid surprise, or for other good cause shown.

     In determining the necessity, the court shall consider the complexity of the issues involved, other opportunities or information available to discover the information sought by the deposition, and any other special or exceptional circumstances that may exist. 

(c) Expert Witness. In any felony case either party may take a discovery deposition of any expert witness who may be called by the other party to testify at trial.    

(d) Witnesses Under Sixteen Years of Age. No party in a criminal case shall take the discovery deposition of a victim or witness who has not achieved the age of sixteen years at the time of the deposition.    

(e) Fees for Lay Witnesses. Deposition witnesses under subpoena shall be entitled to witness fees as in any official proceeding unless expressly waived by the parties with the agreement of the witness.    

(f)  Subpoena duces tecum. If a subpoena duces tecum is to be served on the deponent, the notice to the adverse party must be served before service of the subpoena, and the materials designated for production, as set out in the subpoena, must be listed in the notice or in an attachment.    

(g) Scope of Depositions. The deponent in a deposition shall ordinarily be required to answer all questions not subject to privilege or excused by the statute relating to depositions, and it is not grounds for refusal to answer a particular question that the testimony would be inadmissible at the trial if the testimony sought appears reasonably calculated to lead to the discovery of admissible evidence and does not violate any privilege.

Comment

Under paragraph (b), upon a finding of necessity by a preponderance of the evidence, the trial court may order a deposition over a party’s objection. The New Hampshire Supreme Court has addressed trial courts’ application of the necessity standard in several reported cases. See, e.g., State v. Sargent, 148 N.H. 571 (2002); State v. Howe, 145 N.H. 41 (2000); State v. Hilton, 144 N.H. 470 (1999); State v. Ellsworth, 142 N.H. 710 (1998); State v. Chick, 141 N.H. 503 (1996); State v. Rhoades, 139 N.H. 432 (1995).

 

Rule 14. Notices   

(a) Circuit Court-District Division. In addition to the notice requirements in (c), affirmative defenses must be raised by written notice at least five days in advance of trial.  

(b) Superior Court. In addition to the notice requirements in (c), the following notice requirements apply in superior court. 

          (1) The State’s Notice Obligations

(A) Extended Term Sentences. Notice that an extended term of imprisonment may apply pursuant to RSA 651:6 shall be provided to the defendant in writing at least twenty-one days prior to the commencement of jury selection.

 (B) Alibi. The State may have further notice obligations under Rule 14(b)(2)(C) regarding alibi witnesses.

          (2) The Defendant’s Notice Obligations

 (A) General Notice Obligations. If the defendant intends to rely upon any defense specified in the Criminal Code, the defendant shall within sixty calendar days if the case originated in superior court, or thirty calendar days if the case originated in circuit court-district division, after the entry of a plea of not guilty, or within such further time as the court may order for good cause shown, file a notice of such intention setting forth the grounds therefore with the court and the prosecution. If the 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.

  (B) Prior Sexual Activity of Victim. Not less than forty-five days prior to the scheduled trial date, any defendant who intends to offer evidence of specific prior sexual activity of the victim with a person other than the defendant shall file a motion setting forth with specificity the reasons that due process requires the introduction of such evidence and that the probative value thereof to the defendant outweighs the prejudicial effect on the victim. If the defendant fails to file such motion, the defendant shall be precluded from relying on such evidence, except for good cause shown.

  (C) Alibi. If a defendant intends to rely upon the defense of alibi, notice shall be provided to the State in writing of such intention within sixty calendar days if the case originated in superior court, or thirty calendar days if the case originated in circuit court-district division of the plea of not guilty and a copy of such notice shall be filed with the clerk. The notice of alibi shall be signed by the defendant and shall state the specific place where the defendant claims to have been at the time of the alleged offense, and the names and addresses of the witnesses upon whom the defendant intends to rely to establish such alibi. Within ten days after the receipt of such notice of alibi from the defendant, the prosecution shall furnish the defendant, or 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 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 regarding 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 concerning the alibi notwithstanding the failure to give notice. The court may waive the requirements of this rule for good cause shown.

(3) Notice of Use of Criminal Record During Trial. 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 party 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 opposing party or a 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 party or witness was represented by counsel at the time of the conviction unless counsel was waived.

(c) Special Notice Requirements. The following notice requirements apply in all criminal proceedings in either circuit court-district division or superior court. 

(1) In any case in which a road or way is alleged to be a “way,” as defined in RSA 259:125, or a public highway, a party shall notify the opposing party or counsel at least ten days prior to trial if said “way” or public highway must be formally proved; otherwise, the need to formally prove said “way” or public highway will be deemed to be waived.

(2) Whenever a party intends to proffer in a criminal proceeding a certificate executed pursuant to RSA 318-B:26-a(II), notice of an intent to proffer that certificate and all reports relating to the analysis in question, including a copy of the certificate, shall be conveyed to the opposing party or parties at least twenty-five days before the proceeding begins. An opposing party who intends to object to the admission into evidence of a certificate shall give notice of objection within ten days upon receiving the adversary's notice of intent to proffer the certificate.  A failure to comply with the time limitations regarding the notice of objection required by this section shall constitute a waiver of any objection to the admission of the certificate. The time limitations set forth in this section shall not be relaxed except upon a showing of good cause.

(3) If counsel or the State has a bona fide question about the competency of a defendant to stand trial, counsel or the State shall notify the court. In addition, the court for good cause may raise the issue on its own.  When such a bona fide question arises, the court shall proceed in accordance with RSA 135:17, RSA 135:17-a, and any other applicable statutes.

Comment

Rule 14(b)(1)(A), requiring the state to provide notice that it may seek an extended term of imprisonment under RSA 651:6, derives from current Superior Court Rule 99-A and RSA 651:6(III). An extended term may be imposed upon a defendant if notice is lawfully provided and the court or jury finds that the prerequisites have been met. See Apprendi v. New Jersey, 530 U.S. 466 (2000); State v. Russell, 159 N.H. 475 (2009).  Rule 14(b)(1)(A) reflects the developments in this area of the law. Rule 14(b)(1)(A) provides that in every case in which a prosecutor may seek the imposition of an extended term of imprisonment pursuant to RSA 651:6, the prosecutor must give notice to the defendant prior to the commencement of the trial. In any case in which there exists the possibility that the court may sua sponte impose an extended term, notice must be given by the trial judge prior to the commencement of the trial. State v. Toto, 123 N.H. 619 (1983).

 

Rule 15. Pretrial Motions

     (a) Circuit Court-District Division

  (1) General.  For the general rules governing motions in Circuit Court-District Division, see Circuit Court-District Division Rule 1.8.

  (2) Motions to Suppress.

 (A) Whenever a motion to suppress evidence is filed before trial in any criminal case, the court will determine, in its discretion, whether to hear the motion in advance of trial or at the trial when the evidence is offered.

 (B) 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 at any time thereafter.  The justice presiding at the pretrial hearing need not be disqualified from presiding at the trial. Objections to the court’s ruling in advance of trial admitting the evidence shall be noted by the court and the trial shall proceed as scheduled.

(C) All motions to suppress evidence filed in advance of trial shall be in writing and shall specifically set forth all the facts and grounds in separate numbered paragraphs upon which the motions are based. Such motions shall be filed before the commencement of the trial.  The court, in its discretion, may grant such a motion after trial commences.

(D) Upon request of any party, the court shall make sufficient findings and rulings to permit meaningful appellate review.

(3) Motions to Continue.  For rules governing motions to continue in Circuit Court-District Division, see Circuit Court-District Division Rule 1.8-A.

     (b) Superior Court

(1) Pretrial Motions. The deadline for filing all pretrial motions other than discovery related motions, including but not limited to motions for joinder or severance of offenses, motions to dismiss, motions to suppress evidence, Daubert motions, and other motions relating to the admissibility of evidence that would require a substantial pretrial hearing, shall be sixty days after entry of a plea of not guilty or fifteen days after the dispositional conference, whichever is later.

(2) Motions to Suppress. Except for good cause shown, motions to suppress shall be heard in advance of trial. 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 on behalf of the prosecution, the prosecution shall not refer to such evidence at any time in the presence of the jury, unless otherwise ordered by the court. 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. Every motion to suppress evidence:

       (A) shall be filed in accordance with section (b)(1) of this rule;

       (B) shall be in writing and specifically set forth all the facts and grounds in separate numbered paragraphs upon which the motion is based; and

       (C) shall be signed by the defendant or 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. Upon request of any party, the court shall make sufficient findings and rulings to permit meaningful appellate review. 

(3) Motions in Limine. The parties shall file all motions in limine no less than five calendar days prior to the 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

        (4) Motions to Continue

       (A) Except in exceptional circumstances, all requests for continuances or postponements by the defendant in a criminal case shall be in writing signed by the defendant and counsel. The request shall include an express waiver of the defendant's right to a speedy trial as it relates to the motion. 

       (B) A court may rule on a contested motion to continue without a hearing provided that both parties have had an opportunity to inform the court of their respective positions on the motion.

       (C) The court shall rule on assented-to motions to continue expeditiously.  Notwithstanding the agreement of the parties, the court shall exercise its sound discretion in ruling on such motions.

       (D) Where a trial has been scheduled in one case prior to the scheduling of another matter in another court where an attorney or party has a conflict in date and time, the case first scheduled shall not be subject to a continuance because of the subsequently scheduled matter which is in conflict as to time and date except as follows:

         (i) A subsequently scheduled case involving trial by jury in a superior or federal district court, or argument before the Supreme Court.

         (ii) The court finds the subsequently scheduled case should take precedence due to the rights of a victim under RSA 632-A:9.

         (iii) The court finds that the subsequently scheduled case should take precedence due to a defendant’s rights to speedy trial or other constitutional rights.

         (iv) Unusual circumstances causing the respective courts to agree that an order of precedence other than the above shall take place.

     (E) Other grounds for continuance may be illness of a defendant, defense attorney, or prosecutor; want of material testimony, documents, or other essential evidence; unavoidable absence of an essential witness; and such other exceptional grounds as the court may deem to be in the interest of justice.

(5) Requirements Relating to Motions. The court will not hear any motion grounded upon facts, unless they are verified by affidavit, or are apparent from the record or from the papers on file in the case, or are agreed to and stated in writing signed by the parties or their attorneys; and the same rule will be applied as to all facts relied on in opposing any motion. Any party filing a motion shall certify to the court that a good faith attempt was made to obtain concurrence in the relief sought, except in the case of dispositive motions, motions for contempt or sanctions, or comparable motions where it can be reasonably assumed that the party or counsel will be unable to obtain concurrence. Any answer or objection to a motion must be filed within ten days of filing of the motion. Failure to object shall not, in and of itself, be grounds for granting a motion.

 Rule 16. Videotape Trial Testimony

(a) The State may move to take videotape trial testimony of any witness, including the victim, who was sixteen years of age or under at the time of the alleged offense. Any victim or other witness who was sixteen years of age or under at the time of the offense may also move to take videotape trial testimony. The court shall order videotape trial testimony if it finds by a preponderance of the evidence that:

(1) The child will suffer emotional or mental strain if required to testify in open court; or

(2) Further delay will impair the child's ability to recall and relate the facts of the alleged offense.

(b) Videotape trial testimony taken pursuant to this rule shall be conducted before the judge at such a place as ordered by the court in the presence of the prosecutors, the defendant and counsel, and such other persons as the court allows. Examination and cross-examination of the child shall proceed in the same manner as permitted at trial. Such testimony shall be admissible into evidence at trial in lieu of any other testimony by the child.

(c) Unless otherwise ordered by the court for good cause shown, no victim or witness whose testimony is taken pursuant to this section shall be required to appear or testify at trial.

(d) The attorney general or a county attorney conducting the prosecution in a criminal case may take the deposition of any witness the prosecution intends to call at the trial, if it is determined by a justice of the superior court that:

(1) The defendant in the case in which the deposition is sought has been arrested or bound over to the grand jury or has been indicted, and

(2) There is reason to believe the life or safety of the witness is endangered because of the witness’s willingness or ability to testify, and the testimony expected from the witness is material to the prosecution of the case.

Comment

Paragraphs (a) through (c) of Rule 16 derive from RSA 517:13-a, I through III. Paragraph (d) derives from RSA 517:14-a.  The New Hampshire Supreme Court has held that once a videotaped trial deposition has been taken under RSA 517:13-a, it is not per se admissible at trial; rather, the court must make a specific finding at the time of trial that the deponent continues to be “unavailable” to testify for Confrontation Clause purposes. State v. Peters, 133 N.H. 791 (1986). The status of this rule is uncertain in light of the new standards relative to confrontation clause rights as articulated by the United States Supreme Court in Crawford v. Washington, 541 U.S. 36 (2004), and its progeny.

 

Rule 17. Subpoenas

(a) For Attendance of Witnesses; Form; Issuance. A subpoena for court hearings, depositions, or trials may be issued by the clerk of any court or any justice as defined by statute. A notary may issue a subpoena for depositions only. A subpoena shall comply with the form required by statute and shall command each person to whom it is directed to attend and give testimony at the time and place specified therein.

(b) For Production of Documentary Evidence and of Objects. A subpoena may also command the person to whom it is directed to produce the books, papers, documents, or other objects designated therein at the time and place specified therein.

(c) Service. Service of a subpoena shall be made by reading the subpoena to the person named or by giving that person in hand an attested copy thereof, and by paying or tendering to that person the fee for one day's attendance and the mileage allowed by law. Fees and mileage need not be tendered to the witness upon service of a subpoena issued on behalf of the State or court-appointed counsel. Witnesses subpoenaed by court-appointed counsel shall be paid and reimbursed as provided by law. Witnesses subpoenaed by the State shall be paid and reimbursed directly by the State. A subpoena may be served by any person who is eighteen years of age or older.

(d) Subpoena for Out-of-State Witnesses. A subpoena for witnesses located outside the state shall be issued in accordance with RSA ch. 613.

(e) Self-represented Defendants Unable to Pay.  The court may order that a subpoena be issued for service upon a named witness on an ex parte application of a self-representeddefendant upon a satisfactory showing that the self-represented defendant is financially unable to pay the fees of the witness. If the court orders the subpoena to be issued, the costs incurred by the process and the fees of the witness so subpoenaed shall be borne by the court.

(f) Contempt. Failure to obey a subpoena without adequate excuse may be
punishable by contempt of court.

(g) Motions to Quash. An individual may request that the court quash a subpoena on the grounds of improper service, hardship, or otherwise as provided by law. Notice of the motion must be served on all parties. The court shall notify all parties of any hearing on the motion and the decision.

Comment

Rule 17(a) derives from RSA 516:1 through 516:4. RSA 516:3 provides in pertinent part that any justice may issue writs for witnesses in any pending New Hampshire case. Under this statute, a justice of the peace may issue a subpoena for witnesses, even if the justice is an attorney for one of the parties. See Hazelton Company v. Southwick Construction Company, 105 N.H. 25 (1963).

Rule 17(b) permits a party to seek production of books, papers, documents or other objects through the service of a subpoena duces tecum.

The first sentence of paragraph (c) sets forth the appropriate methods of service and is a consistent restatement of RSA 516:5. This paragraph reflects the state’s statutory exemption from the requirement of tendering witness fees in advance of trial or hearing. State v. Tebetts, 54 N.H. 240 (1874). Paragraphs (c) and (e) extend this principle to cases in which counsel has been appointed for the defendant or in which a defendant demonstrates an inability to pay the fees and mileage allowed by law.

Rule 17(d) addresses the summoning of witnesses located outside the state and reflects the procedure for summoning out-of-state witnesses established by the Uniform Act, RSA ch. 613. The rule recognizes the current practice whereby applications to summon out-of-state witnesses may be made ex parte. A party is not required by law or rule to give notice of its intent to summon a witness regardless of whether the witness is located in the state.


 

 

 


 

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