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Criminal Rules Table of Contents

 

THE NEW HAMPSHIRE RULES OF CRIMINAL PROCEDURE

 

V.  TRIAL PROCEDURES

 

Rule 18. Venue

(a) Venue Established. Every offense shall be prosecuted in the county or judicial district in which it was committed. If part of an offense is committed in one county, and part in another, the offense may be prosecuted in either county.

(b) Change of Venue. If a court finds that a fair and impartial trial cannot be had in a county or judicial district in which the offense was committed, it may, upon the motion of the defendant, transfer the case to another county or judicial district where a fair and impartial trial may be had.

 

Rule 19. Transfer of Cases

When any party files a motion in any superior court or circuit court-district division requesting the transfer of a case, or of a proceeding therein, there pending to another court, the presiding judge may, after giving notice and an opportunity for a hearing to all parties, order such transfer.

Comment

Rule 19 contemplates the transfer of whole cases, or of particular proceedings in cases, even in the absence of a related pending case or proceeding in the county to which transfer is sought. The rule provides a method whereby a party may ask a court to transfer cases for a plea as well as for trial.  This rule should be distinguished from Rule 18, which provides for change of venue to insure a fair and impartial trial.

 

Rule 20. Joinder of Offenses and Defendants

(a) Joinder of Offenses

(1) Related Offenses. Two or more offenses are related if they:

(A) Are alleged to have occurred during a single criminal episode; or

(B) Constitute parts of a common scheme or plan; or

(C) Are alleged to have occurred during separate criminal episodes, but nonetheless, are logically and factually connected in a manner that does not solely demonstrate that the accused has a propensity to engage in criminal conduct.

(2) Joinder of Related Offenses for Trial. If a defendant is charged with two or more related offenses, either party may move for joinder of such charges. The trial judge shall join the charges for trial unless the trial judge determines that joinder is not in the best interests of justice.

(3) Joinder of Unrelated Offenses. Upon written motion of a defendant, or with the defendant's written consent, the trial judge may join for trial two or more charges of unrelated offenses upon a showing that failure to try the charges together would constitute harassment or unduly consume the time or resources of the parties. The trial judge shall join the charges for trial unless the trial judge determines that joinder is not in the best interest of justice.

(4) Mandatory Joinder-Limitations on Separate Trials for Multiple Offenses. Except as provided in Subsection (5), a defendant shall not be subject to separate trials for multiple offenses based on the same conduct or arising from the same criminal episode, if such offenses are known to the appropriate prosecuting officer at the time of the commencement of the first trial and are within the jurisdiction of a single court.

(5) Relief from Prejudicial Joinder. If it appears that a joinder of offenses is not in the best interests of justice, the court may upon its own motion or the motion of either party order an election of separate trials or provide whatever other relief justice may require.

(b) Joinder of Defendants. If two or more defendants are charged with related offenses as defined in Rule 20(a)(1), the court may order joinder of the trials of the defendants so long as joinder does not violate the constitutional rights or otherwise unduly prejudice any of the defendants.

 

Rule 21. Trial by the Court or Jury; Right to Appeal

(a) Circuit Court-District Division

(1) Trial. A defendant shall be tried in the circuit court-district division by a judge unless otherwise provided by law. In all prosecutions for misdemeanors in which appeal for trial de novo is allowed, the court, in its discretion, may allow the defendant, upon advice of counsel, to plead not guilty and to waive the presentation of evidence by the State, and the presentation of a defense. The court shall require the prosecution to make an offer of proof. The court may find the defendant guilty and impose sentence. The defendant may appeal to the superior court. The court’s sentence is vacated pending appeal except as otherwise provided by statute.

(2) Appeal for Trial De Novo in the Superior Court. When permitted by statute or required by the New Hampshire Constitution, an appeal to the superior court may be taken by the defendant by giving notice in open court after the court pronounces sentence, or by filing written notice with the clerk of the circuit court-district division within three days of the verdict. A defendant who was prevented from appealing through mistake, accident, or misfortune, and not from neglect, may, within thirty days of the imposition of sentence by the circuit court – district division, request the superior court to allow an appeal. The motion shall set forth the reason for appealing and the cause of the delay. The court shall make such order thereon as justice may require. In the event of an appeal, the court may review the defendant’s bail status, at the request of either party. If, upon appeal to the superior court, the defendant waives the right to a jury trial, the court shall remand the matter to the circuit court-district division for imposition of the originally imposed sentence. An appeal may not be withdrawn after the record of appeal has been sent to the superior court. Such withdrawals must be made in the superior court.

(3) Appeal to Supreme Court. A person sentenced by a circuit court-district division for a class A misdemeanor may, if no appeal for a jury trial in superior court is taken, appeal therefrom to the Supreme Court at the time the sentence is declared or within thirty days after the sentence is declared. When the defendant has been convicted of a violation, or in any case where an appeal for a trial de novo in superior court is not permitted, the defendant may likewise appeal to the Supreme Court at the time the sentence is declared or within thirty days after the sentence is declared. The Supreme Court's review in such cases shall be limited to questions of law.

(4) Transcripts. Whenever a party desires to use a sound recording of circuit court-district division proceedings on appeal, a written transcript of the sound recording will be required.

(b) Superior Court

Trial shall be before a jury of twelve persons unless the defendant, on the record, waives this right. If two or more defendants are to be tried together, the trial shall be before a jury unless all defendants waive the right to a jury trial. The consent of the State is not necessary for the defendant to waive the right to trial by jury.

 

Comment

In State v. Thompson, 165 N.H. 779 (2013), the New Hampshire Supreme Court clarified the choice between appealing a misdemeanor conviction by seeking a trial de novo and appealing directly to the Supreme Court on an issue of law. The Court stated: “we reiterate that RSA 502–A:12 ‘absolutely guarantees trial by jury to persons’ convicted in circuit court of a class A misdemeanor, and dictates, as ‘the manner ... specified for exercising this right’ that the defendant may not also—either prior to, concurrently, or after his appeal to superior court—appeal that same circuit court conviction to this court. Ludwig v. Massachusetts, 427 U.S. 618, 630 (1976). In essence, RSA 502–A:12 limits a defendant to one bite at the apple. Should he choose the de novo jury trial in superior court and again be convicted there, he may of course appeal that conviction to this court.” Thompson, 165 N.H. at 788.

 

Rule 22. Selection of Jury

 

(a) Juror Orientation. When a new panel of prospective jurors is first summoned for service the panel shall be given preliminary instructions regarding the terms and conditions of jury service, the role of the jury in the justice system, and the legal principles applicable to the cases the jurors may hear. 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. Juror orientation sessions shall be open to the public. Except during periods when an audio or video recording is being played, all proceedings involving the judge giving preliminary instructions and taking and responding to juror questions shall be conducted on the record. The record of juror orientation sessions shall be preserved for a period of ten years.

(b) Juror Questionnaires.

(1) The clerk of the superior court for each county shall maintain a list of jurors presently serving, together with electronic copies of their completed questionnaires. The clerk’s office may maintain a paper copy which may be available upon request for inspection by attorneys, non-attorney representatives and parties representing themselves.

(2) The clerk's office shall permit attorneys, non-attorney representatives and parties representing themselves who have jury cases scheduled for trial during the term to have an electronic copy of the questionnaires which have been completed by the jurors presently serving. None of these persons shall reveal any information contained in the questionnaires to any person except as may be necessary in connection with the prosecution or defense of the case or cases for which access was granted.

(3) Violation of this rule may be treated as contempt of court.


(c) Examination.

(1) The court shall instruct the panel of prospective jurors prior to jury selection as to:

(A) The nature and purpose of the selection process.

(B) The nature of the case to be presented.

(C) The specific issues for resolution.

(D) A summary of the law to be used in their consideration of the evidence.

(E) Any controversial aspects of the trial likely to invoke bias.

(2) In all cases, the court shall have the responsibility to ensure that each empanelled juror is qualified, fair, and impartial. All proceedings relating to the examination of prospective jurors shall be recorded and should be conducted in the presence of counsel, or the defendant, if self-represented.

(3) In capital cases or first degree murder cases, the court shall allow counsel to conduct individual voir dire. In all other cases, voir dire shall be conducted as set forth in RSA 500-A:12-a.

(d) Peremptory Challenges. For offenses punishable by death, the defendant shall be accorded, in addition to challenges for cause, no fewer than twenty peremptory challenges; the State shall be afforded, in addition to challenges for cause, no fewer than ten peremptory challenges. In first degree murder cases, both the State and the defendant shall be afforded, in addition to challenges for cause, no fewer than fifteen peremptory challenges. In all other criminal cases the defendant and the State shall, in addition to challenges for cause, be entitled to no fewer than three peremptory challenges. In trials involving multiple charges, the number of peremptory challenges shall be the number of challenges allowed for the most serious offense charged.

(e) Alternate Jurors. Upon request by either the State or the defendant, or sua sponte, the court may direct that alternate jurors be chosen. The number of peremptory challenges allotted to both the State and the defendant for selection of alternate jurors shall be in accordance with the following schedule:

1-3 alternates -- 1 peremptory challenge

4-6 alternates -- 2 peremptory challenges


Comment

The rule requires that all communication with the panelists be recorded, and further provides that all communications should be conducted in the presence of counsel. State v. Bailey, 127 N.H. 416 (1985); State v. Brodowski, 135 N.H. 197, 201 (1991). The rule does not absolutely foreclose the possibility that the court could communicate with potential jurors outside the presence of counsel, in recognition of the fact that, in relatively rare instances, the interest in full disclosure by jurors of sensitive, but relevant, matters may be advanced by allowing the court to inquire into those matters in private with the juror. Those communications, though, like all other communications with jurors, must be recorded.

Paragraph (d) provides that in trials adjudicating multiple charges, the number of peremptory challenges available to the parties depends on the most serious charge. Paragraph (d) does not provide for cases of multiple defendants, thus leaving intact the traditional practice in New Hampshire of allowing each defendant the full number of challenges provided by the law. State v. Doolittle, 58 N.H. 92 (1877). Paragraph (d) allows the trial court discretion with regard to control of the manner, order and timing of the parties’ peremptory challenges. State v. Farrow, 118 N. H. 296, 307 (1978); State v. Prevost, 105 N.H. 90 (1963).

 

Rule 23. Juror Notes and Written Questions

(a) Note-Taking by Jurors. It is within the court's discretion to permit jurors to take notes. If the court permits note-taking, after the opening statements the court will supply each juror with a pen and notebook to be kept in the juror's possession in the court and jury rooms, and to be collected and held by the bailiff during any recess in which the jurors may leave the courthouse and during arguments and charge. After a verdict, the court will immediately destroy all notes.

(b) Questioning of Witnesses by Jurors. With the consent of all parties, the trial judge may permit jurors to pose written questions. If a trial judge decides to permit jurors to pose written questions at trial, the court shall use the following procedure:

(1) At the start of the trial, the judge will announce to the jury and counsel the decision to allow jurors to pose written questions to witnesses. At this time the judge will instruct the jurors on taking notes and, as to the scope of questioning, the procedure to be followed.

(2) Trial will proceed in the normal fashion until questioning of the first witness has been completed by both counsel.

(3) When questioning of the first witness is completed, the court will allow jurors to formulate any questions they may have, in writing. Jurors will be asked to put their seat number on the back of the question. The judge is the only person who will see the number.

(4) The bailiff will collect the anonymous questions and deliver them to the judge.

(5) At the bench, the judge and counsel will read the proposed questions. Counsel will be given the opportunity to make objections on the record to any proposed question after which the judge will decide if they are appropriate and whether, under the circumstances of the case, the judge will exercise discretion to permit the questions.

(6) Questions may be rephrased by the judge, or the judge may ask the question in a way mutually agreeable to the parties. The question should, however, attempt to obtain the information sought by the juror's original question.

(7) After all the chosen questions are answered, each counsel will have an opportunity to re-examine the witness. The party who called the witness will proceed first. The judge should allow only questions that directly pertain to questions posed by the jurors. The judge may also impose a time limit. If the judge does plan to impose a time limit, counsel should be notified and given an opportunity to object to the length outside the hearing of the jury.

(8) The judge shall instruct the jury substantially as follows.

(A) Instructions to the Jury at Beginning of Trial:

Ladies and gentlemen of the jury, I have decided to allow you to take a more active role in your mission as finders of fact. I will permit you to submit written questions to witnesses under the following arrangements.

After each witness has been examined by counsel, you will be allowed to formulate any questions you may have of the witness. Please remember that you are under no obligation to ask questions, and questions are to be directed only to the witness. The purpose of these questions is to clarify the evidence, not to explore your own legal theories or curiosities.

If you do have any questions, please write them down on a pad of paper. Do not put your name on the question, but do put your seat number on the back of the paper, and do not discuss your questions with fellow jurors. The bailiff will collect the questions, and I will then consider whether they are permitted under our rules of evidence and are relevant to the subject matter of the witness' testimony. If I determine that the question or questions may be properly asked of the witness pursuant to the law, I will ask the question of the witness myself.

It is extremely important that you understand that the rejection of a question because it is not within the rules of evidence, or because it is not relevant to the witness' testimony, is no reflection upon you. Also, if a particular question cannot be asked, you must not speculate about what the answer might have been.

(B) Instructions to the Jury when Decision Whether to Ask Questions is Made:

Ladies and gentlemen of the jury, I remind you of my earlier remarks regarding juror questions. Some questions cannot be asked in a court of law because of certain legal principles. For this reason there is the possibility that a question you have submitted has been deemed inappropriate by me and will not be asked. I alone have made this determination, and you should not be offended, or in any way prejudiced by my determination.

(C) In its discretion, the court may add additional instructions.

 

Rule 24. Trial Procedure

(a) Circuit Court – District Division

(1) Opening Statements. Opening statements are not permitted in circuit court – district division trials except with permission of the court for good cause shown. When opening statements are permitted, the prosecution shall make an opening statement prior to presenting evidence. At its option in such a case, the defense may open immediately thereafter or after the prosecution has concluded its case-in-chief and before presenting defense evidence. Opening statements shall not be argumentative, and except by prior leave of the court, shall be no longer than thirty minutes.

(2) Order of Evidence. The prosecution shall present evidence first in its case-in-chief. During the case-in-chief, the defense may introduce evidence through the prosecution's witnesses. After the prosecution has rested, the defense may present evidence.

(3) Rebuttal Evidence. Evidence that is strictly rebutting may be permitted at the discretion of the court upon good cause shown.

(4) Attorneys Examining. Only one attorney for each party is permitted to examine or cross-examine each witness.

(5) Objections; Offers of Proof. When objecting or responding to an objection, counsel shall state the basis for the objection or response. Upon request, the court shall permit counsel to present offers of proof in support of the objection or response. Only the attorney examining or cross-examining a witness may raise objections or respond to objections regarding that witness.

(6) Re-Examining and Recalling Witnesses. Redirect examination shall be limited to topics covered on cross-examination except for good cause shown. Prior to being dismissed, a witness is subject to recall by either party. After being dismissed, a witness may be recalled with the court’s permission.

(7) Testimony of Witnesses. In all proceedings, the testimony of witnesses shall be given, by oath or affirmation, orally in open court, unless otherwise provided by law.

(8) Closing Argument

(A) Only one attorney shall argue for each party, except by leave of the court.

(B) After the close of evidence, the defense shall argue first and the prosecution shall argue last. In cases in which the defense of insanity has been raised and the case has been bifurcated for trial, the defense shall have the right to argue last on the issue of insanity.

(C) Before any attorney shall in closing argument read any excerpt of
testimony prepared by the court reporter, the attorney shall furnish opposing counsel with a copy thereof prepared by the reporter.

(9) Motions to Dismiss; Motions for Mistrial. Motions to dismiss or for a mistrial shall be made on the record.

(10) Reopening Evidence. Prior to submission of the case to the court, a party may reopen evidence for good cause shown. After submission of the case, but before the return of a verdict, a party may reopen evidence after showing good cause, in the discretion of the court.


(b) Superior Court

(1) Opening Statements. Prior to presenting evidence, the prosecution shall make an opening statement. At its option, the defense may make an opening statement. The defense may open immediately after the prosecution’s opening statement or after the prosecution has concluded its case-in-chief and before presenting defense evidence. Opening statements shall not be argumentative, and except by prior leave of the court, shall be no longer than thirty minutes.

(2) Order of Evidence. The prosecution shall present evidence first in its case-in-chief. During the case-in-chief, the defense may introduce evidence through the prosecution's witnesses. After the prosecution has rested, the defense may present evidence.

(3) Rebuttal Evidence. Evidence that is strictly rebutting may be permitted at the discretion of the court upon good cause shown.

(4) Attorneys Examining. Only one attorney for each party is permitted to
examine or cross-examine each witness.

(5) Objections; Offers of Proof. When objecting or responding to an objection before the jury, counsel shall state only the basis, without elaboration, for the objection or response. Upon request, the court shall permit counsel a reasonable opportunity, on the record and outside the hearing of the jury, to present additional grounds, argument, or offers of proof in support of the objection or response. Only the attorney examining or cross-examining a witness may raise objections or respond to objections regarding that witness.

(6) Re-Examining and Recalling Witnesses. Redirect examination shall be limited to topics covered on cross-examination except for good cause shown. Prior to being dismissed, a witness is subject to recall by either party. After being dismissed, a witness may be recalled with the court’s permission.

(7) Testimony of Witnesses. In all proceedings, the testimony of witnesses shall be given, by oath or affirmation, orally in open court, unless otherwise provided by law.

(8) Closing Argument

(A) Each party shall be limited to one hour of argument unless otherwise ordered by the court in advance. Only one attorney shall argue for each party except by leave of the court.

(B) After the close of evidence, the defense shall argue first and the prosecution shall argue last. In cases in which the defense of insanity has been raised and the case has been bifurcated for trial, the defense shall have the right to argue last on the issue of insanity.

(C) Before any attorney shall in closing argument read to the jury any excerpt of testimony prepared by the court reporter, the attorney shall furnish opposing counsel with a copy thereof prepared by the reporter.

(9) Jury Instructions

(A) At such time as the court may reasonably permit, any party may request specific jury instructions.

(B) The court shall inform counsel of its intended jury instructions prior to counsel's closing arguments. All objections to the charge shall be taken on the record before the jury retires. Opportunity shall be given to make objections outside of the hearing of the jury.

(10) Motions to Dismiss; Motions for Mistrial. Motions to dismiss or for a mistrial shall be made on the record outside the hearing of the jury.

(11) Reopening Evidence. Prior to submission of the case to the court, a party may reopen evidence for good cause shown. After submission of the case, but before the return of a verdict, a party may reopen evidence after showing good cause, in the discretion of the court.


Rule 25. Verdict

(a) Non-Jury Cases. The court shall return its verdict within a reasonable time after trial.

(b) Jury Cases. The verdict shall be unanimous and shall be returned by the jury in open court.

(c) Poll of Jury. When a verdict is returned and before it is recorded the jury may be polled at the request of any party or upon the court's own motion. If upon the poll there is not unanimous concurrence, the jury may be directed to retire for further deliberations or may be discharged.

(d) Bail. After a verdict, either party may request a change in bail as provided by law.

(e) Motion to Set Aside Verdict. A motion to set aside a jury verdict or a non-jury verdict announced on the record in open court shall be filed within ten days after its rendition, and a motion to set aside any other verdict or decree shall be filed within ten days from the date on the clerk’s written notice with respect to same, which shall be mailed by the clerk on the date of the notice. In each case, the motion shall fully state all reasons and arguments relied upon.

 


Rule 26. Presence of Counsel

After a case has been submitted to the jury and the jury has retired for deliberations, counsel shall not leave the courthouse without permission of the court. The court may permit counsel to leave the courthouse upon appropriate conditions. If counsel is absent from the courthouse without permission when a jury requests additional instructions, such absence shall constitute a waiver of the right to be present during instructions given in response to the request.


Comment

As Rule 26 reflects, if counsel has left the courthouse with the court’s permission, counsel has not waived the right to be present when an instruction is to be given in response to a jury’s question.

 


Rule 27. Disability of Judge

If by reason of death or serious disability the judge before whom a jury trial has commenced is unable to proceed with the trial or post-verdict duties, another judge may perform those duties. If a manifest necessity requires it, a new trial shall be ordered.

 


Rule 28. Communication with Jurors

(a) Before and During Trial. Before and during trial, no attorney, party or witness shall personally or through any agent converse or otherwise communicate with any juror or any member of the venire from which the jury will be selected. During trial, when the judge must communicate with any juror or any member of the venire before the jury is excused, the communication shall be on the record.

(b) Post Trial. For thirty days after discharge of the jury venire on which a juror has served, no attorney or party shall personally or through an agent interview, examine or question any juror or family member with respect to the trial, verdict or deliberations. At no time, however, shall an attorney, party or any person acting for either of them ask questions of or make comments to a juror that are calculated to harass or embarrass the juror or to influence the juror’s actions in future jury service.

(c) Protective Order. Upon application of any person the court may issue appropriate protective orders and/or sanctions as justice may require.

 


 

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