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Law Related Education
Understanding the New Hampshire Courts
Funded in part by a grant from the New Hampshire Department of Education and the New Hampshire Bar Foundation.

INTRODUCTION

This booklet provides an overview of the New Hampshire court system including the different types of courts; the types of cases each court hears; the role of judges and the function of juries. A description of the legal process of a civil and criminal case is also included.

The New Hampshire Court System N.H. Supreme Court
Hears appeals from all courts, administrative agencies, and supervises the judicial branch, answers questions from federal courts and more.

Probate Court
Hears cases involving wills, trusts, estates, guardianship and more.

District Court
Hears civil cases involving $25,000 or less, small claims cases ($5,000 or less), less serious criminal cases, juvenile cases and more.

Superior Court
Hears cases involving serious crimes, lawsuits, all equity matters and more.

Family Division Pilot Program
Consolidates family-related matters from the Probate, District and Superior courts in Grafton and Rockingham counties.

A CASE IN POINT

The New Hampshire courts were established to settle disputes between citizens, and to hear cases involving crimes against the public. Consider the following:

John and Joan Citizen are driving through Merrimack. Suddenly, their vehicle is struck from behind by a drunk driver named David Driver. The impact sends John into the dashboard. He is hospitalized for two weeks. Joan receives a serious back injury that doctors agree will cause her pain for the rest of her life.

There are two legal procedures in which to respond to the accident:

Civil law allows John and Joan Citizen to seek money damages from David Driver for the injuries they received.

Criminal law gives the State the authority to prosecute David Driver, alleging that he was driving while intoxicated.

CIVIL LAW

Civil law developed from our State and Federal constitutions, court decisions in previous cases and from specific laws passed by the legislature. In civil actions, a jury generally decides the case, unless the parties involved decide to try the case in front of a judge only (called a bench trial). The money awarded to the winning party is known as a verdict (when issued by a jury) or a judgment (when issued by a judge). Civil cases which generally do not involve money damages are called equity cases. Some examples of equity cases are: divorce, injunctions, and disputes over the ownership of real estate. These types of cases are usually tried before a judge.

How a Civil Case Moves Through the Courts

Legal Counsel
Mr. and Mrs. Citizen were hit from behind by Mr. Driver. They meet with a lawyer to decide if they should sue Mr. Driver for losses due to their injuries, such as medical bills, lost wages, and pain and suffering.

Filing Suit
The Citizens sue Mr. Driver in Superior court in the county in which they live. The case will usually take a year to prepare before the trial is held. During this time each side investigates their case and is allowed to obtain information from the other side.

Trial
Mr. Driver asks for a jury trial and says it was not his fault. At trial, twelve adults sit on the jury. Both sides present their evidence to the jury. Attorneys argue their case in closing arguments.

Jury's Verdict
The judge instructs the jury to decide the facts and to apply the law to those facts in reaching their decision. The jury deliberates in secret until they reach a unanimous decision. The jurors award $250,000 in damages to the plaintiffs, Mr. and Mrs. Citizen.

Appeal
Mr. Driver's lawyer prepares an appeal to the NH Supreme Court, located in Concord.

Oral Argument
Both lawyers argue their case in front of the NH Supreme Court justices. Mr. Driver's lawyer claims that the verdict was too high and that errors in the law were made by the trial judge in the manner in which the jury was instructed.

The NH Supreme Court
The NH Supreme Court decides Mr. Driver's appeal has merit and overturns the verdict. The Court orders a new trial which will be held again in Superior court.

CRIMINAL LAW

Criminal law is defined by statutes: laws passed by the legislature and signed by the governor. Court decisions interpret statutory law in light of specific facts. There are two categories of crimes:

Misdemeanors - are divided into classes. Class A misdemeanors carry a possible jail sentence of less than one year and a fine of up to $2,000. Class B misdemeanors have no jail time but carry a fine of up to $1,200.

Felonies - are divided into classes. The penalty may be a State prison sentence from one year and a day up to death and/or a fine of up to $4,000. A category of Special felonies in the Controlled Drug Act carry a penalty of a State prison sentence of up to 30 years and/or a fine of up to $500,000.

Offenses against city ordinances or most motor vehicle rules are called violations, not crimes. You can still be arrested, and fined up to $1,000. Violations are serious infractions, which can lead to even more significant punishment. For example, certain motor vehicle violations, such as Driving While Intoxicated (DWI) are punishable by both a fine and loss of their driver's license. A second conviction for DWI is a Class A misdemeanor and subjects a person to a mandatory jail sentence, a fine and loss of their driver's license.

Whenever a defendant in a criminal case pleads guilty to a criminal charge, or is found guilty, the judge must sentence the defendant within the limits described above, according to the category of the offense. The judge may also sentence the defendant to probation and/or pay restitution to the defendant.

Many criminal cases are resolved by the courts through plea agreements between the prosecution and the defendant. Under a plea agreement, the prosecution agrees to recommend a certain sentence to the judge in return for the defendant's plea of guilty or nolo contendere. The plea agreement is then presented to a judge who decides whether to accept it. If the judge accepts the plea agreement, the defendant is sentenced.

How a Criminal Case Moves Through the Courts

Arrest
Mr. Driver is arrested and charged with aggravated DWI, a misdemeanor that can result in up to a year in jail and a $1,000 fine. The police officer reads him his rights before asking questions about the incident. The police officer files a complaint in District court.

Arraignment
Mr. Driver is brought before a District court judge in the area where he was arrested. Mr. Driver enters a plea of not guilty at his arraignment. He is released on bail and given time to obtain a lawyer.

Trial by Judge
Mr. Driver is presumed innocent until proven guilty. He will be tried in District court either by the judge or, in some district courts, by a jury. If a jury trial is not available and the judge finds him guilty, Mr. Driver may appeal to the Superior court for a jury trial. This is called a de novo trial.

Trial by Jury
If Mr. Driver opts for a jury trial in District court or has a de novo trial in Superior court, his case will be tried in front of a jury. A petit jury will hear Mr. Driver's case. The judge instructs the jury that Mr. Driver is innocent until proven guilty. If the jury finds him not guilty, the matter ends.

Sentencing
Mr. Driver is found guilty and the judge sentences him to jail for 10 days and a fine of $500. Under certain circumstances, Mr. Driver can appeal to the NH Supreme Court, claiming an error of law.

Appeal
The prosecutor and Mr. Driver's lawyer argue their case in the NH Supreme Court located in Concord. Mr. Driver's lawyer argues that the conviction should be overturned, claiming errors occurred in the lower court.

The NH Supreme Court
The NH Supreme Court decides Mr. Driver's case by reviewing the facts and the law. It upholds the conviction. Mr. Driver is required to serve his 10-day sentence and pay the fine.

TYPES OF COURTS

District courts are located in our cities and large towns, each serving a region of the state. These courts hear small claims cases, civil cases involving damage claims up to $25,000, all landlord and tenant disputes, violation and misdemeanor criminal cases, child abuse and neglect cases, and juvenile cases. A domestic violence petition (often called a request for a restraining order) is usually obtained in the District court. Most search warrants and arrest warrants are also issued by the District court.

All juvenile cases are confidential and are heard before a District court judge unless the juvenile has been certified or declared an adult because of a prior record of offenses and the serious or violent nature of a crime.

District courts also hold probable cause hearings in felony cases, but do not hear these trials. A person arrested for a felony can be bound over to the Superior court if a District court judge finds probable cause. An accused person who has been bound over is then held in jail for a felony charge, or released on bail, until the Superior Court grand jury can meet to decide whether to issue an indictment.

Generally, jury trials have not been held in District court but experiments with jury trials in criminal cases are underway in Rockingham and Merrimack Counties. In criminal cases, a jury trial would eliminate a defendant's right to a de novo trial in Superior court. If the program is successful, the NH Supreme Court could designate other District courts to handle jury trials as a means of reducing Superior court caseloads.

There is a Probate court in each county. Jury trials are not available in Probate court. These courts hear cases involving adoption, guardianship, name changes and matters involving estates. Probate courts also hear cases involving the partition of real estate and the interpretation, modification, administration and termination of trusts. In addition, Probate courts determine when parents should permanently lose custody of their children due to abuse, neglect or other reasons. Probate judges can also involuntarily commit individuals to the State hospital to receive treatment for mental illness.

There are eleven Superior courts in New Hampshire, one for each county and two in Hillsborough County. Superior court is the only court of general jurisdiction, which means it handles all matters not covered by other courts. Serious criminal cases, such as felonies, and serious civil cases are tried here, usually before juries. There is no limitation on the amount of damages that a Superior court jury can award. Injunctions and other equity matters are heard in Superior court, usually by a judge. Trials in family law cases are usually held before marital masters.

Because the New Hampshire Constitution requires that the accused in a criminal case must receive a speedy trial, criminal cases consume the bulk of the Superior court's time. As a result, many civil trials are delayed to allow criminal trials to go forward, even though the majority of the cases entered in Superior court are civil. Most civil cases are not ready for trial for at least a year. Civil cases can involve extensive pretrial discovery which may include interrogatories and depositions. Over 95 percent of civil cases are settled by agreement of the parties before a trial occurs.

The Family Division Pilot Program is an experimental program that started in 1996 in Grafton and Rockingham Counties. There are four family division courts in each of the two counties participating in the pilot project. Family related cases previously heard in the Probate, District and Superior courts in those two counties have been consolidated into this new program and are heard by one judge. The cases can include: adoption, paternity actions, juvenile criminal offenses and delinquency, domestic violence petitions, charges of abuse and neglect of children, divorce, child custody, termination of parental rights, and guardianship.

The NH Supreme Court supervises the entire court system, issues advisory opinions and rules on appeals. The Court has jurisdiction over the admission and discipline of attorneys and appoints a board of bar examiners to oversee the bar examination required of all candidates for admission to the practice of law in New Hampshire. The Court's committee on character and fitness evaluates candidates' fitness for the practice of law. The Court's committee on professional conduct investigates complaints about lawyers' conduct. The Supreme Court's Judicial Conduct Committee enforces the code of judicial conduct to which all judges are subject.

The Court is empowered by the NH Constitution to issue advisory opinions at the request of either house of the legislature or the Governor and Executive Council. These opinions concern the legality of actions which are being considered, rather than actions which have already taken place. The opinions answer important questions of constitutional law raised by proposed legislation. The NH Supreme Court also decides questions of state law transferred from the Federal courts.

THE APPEAL PROCESS

An appeal is a phase of a trial that normally takes place after a case has concluded in another court or in a state administrative agency such as the Public Utilities Commission. An appeal results when at least one of the parties is dissatisfied with the trial court result or agency decision and wishes to appeal issues of fact or law which that party believes have been wrongly decided.

The concept of an appeal on issues of law in New Hampshire is that the next higher court carefully scrutinizes the legal issues of a case. Rather than re-deciding the facts of a controversy, the Superior court in the cases from District court, and the Supreme Court in cases from Probate, Superior court, and Administrative agencies decide issues of law presented by the written case record. The higher court serves to correct errors in lower courts or administrative agency proceedings. Each lower court has a system for recording case proceedings to insure that the case can be properly reviewed on appeal.

An appeal begins when a Notice of Appeal is filed with the Clerk of the higher court. In cases appealed to the NH Supreme Court, one judge reviews the appeal papers to decide whether it should be declined, summarily affirmed, or summarily reversed. If the judge recommends that a case be resolved in any of the above ways, then the other four judges review the appeal. If they agree with the recommendation, the case is over.

If any one judge indicates that the case should be fully considered on appeal, (i.e. be briefed and argued) it will be. At this point, the appeal is "accepted." When an appeal is accepted, the parties submit written briefs, which present each party's arguments and legal references. At oral argument, usually limited to 15 minutes for each side, the attorneys highlight the key points in their appeal and answer questions from the judges. Unlike the trial courts, witnesses never testify before the NH Supreme Court. After this oral argument, (or without oral argument if the parties have so chosen), the case is assigned to one judge to draft the court's decision into a written opinion.

Although a unanimous decision is reached in most cases, a dissenting judge may formally indicate disagreement and may accompany the majority opinion with a written explanation of that judge's dissenting opinion. Sometimes the Court issues a per curiam opinion, which expresses the decision of the court but which is not attributed to any one judge. For decisions not in need of lengthy explanation, the court issues memorandum opinions. All opinions are published in New Hampshire Reports. The decisions of the Court are final except in those cases concerning Federal law. In this case, the losing party can request a review by the US Supreme Court.

JUDGES

In New Hampshire, the Governor nominates a judge and the Executive Council confirms their post. By New Hampshire constitutional law, all judges must retire at age seventy. Judges can be removed from office for good cause by the legislature.

NH Supreme Court and superior court judges are full-time State employees who cannot practice law at the same time they are serving an appointment as a justice. Some District and Probate court judges are part-time, and may hear cases one day a week or more. Usually, District court judges stay in their districts or counties, but may occasionally sit outside their district. Superior court judges may move every two or three months among the eleven Superior courts. Clerks, bailiffs and court reporters aid judges in their work in all courts.

JURY DUTY

Today about 95 percent of all jury trials in the world take place in the United States. Juries are an integral part of the New Hampshire courts. Persons accused of a crime have a guaranteed right to a trial by a jury of citizens like themselves. Generally, in civil cases, parties may choose to have their cases decided by a jury or by a judge.

Serving on a jury is a responsibility of citizenship. It also enables citizens to become knowledgeable about courts and the law. Juror names are selected at random from a combined Master List of persons who hold a valid NH driver's license and were registered to vote in the most recent State general election. This method of selection ensures that the broadest possible group of people are eligible for jury duty. Though the pay for serving as a juror is minimal, the responsibility is great.

In New Hampshire, a grand jury is composed of twelve to twenty-three citizens who consider accusations of crimes. If there is sufficient evidence, the grand jury may indict an individual suspected of committing a felony, when at least twelve grand jurors agree. The individual's case is tried before a jury.

The petit jury or trial jury resolves civil disputes and criminal matters. In criminal matters, the jury determines if the facts presented in a case prove beyond a reasonable doubt that the defendant has committed a crime.

In civil cases, the jury determines if the facts presented establish a preponderance of evidence then the defendant is liable to the plaintiff. If so, the plaintiff receives damages. Regardless of the type of case, the petit jury verdict must be unanimous.

GLOSSARY

Advisory opinionRequest to the Supreme Court by the legislature or governor for advice on a pending matter.
AppealRequest to take a case to a higher court for review.
BailA guarantee that an accused person will appear in court.
Bound overWhen a criminal defendant's case is held for the next grand jury or for trial. See: probable cause hearing.
BriefsWritten legal arguments that seek to persuade a court.
Civil lawStatutes, regulations and court decisions concerning matters other than crimes.
Criminal lawStatutes prohibiting criminal conduct, and establishing penalties for those who are convicted of violating the law.
DamagesA sum of money awarded to a person injured by an unlawful act, an act of omission or negligence of another.
Decide the factsEach juror's interpretation of the truth of the facts presented during a trial.
De novoLatin phrase for new; meaning a new trial, as if the first never occurred.
DeclinedAction taken by the Supreme Court refusing to accept a case for appeal.
DepositionQuestioning a witness under oath by a lawyer in a pending case. A judge is not present but the testimony is recorded word for word, usually by a court reporter in an office.
DiscoveryProcess of obtaining facts, documents or other items which are in the exclusive possession of the opposing party.
Dissenting opinionWritten opinionof one or more judges who disagree with the other judges' majority opinion.
Domestic violenceAny physical or emotional abuse between household members.
EquityCivil proceedings where money generally is not at issue. See: Injunction.
FeloniesMajor crimes, such as murder, arson, and sexual assault. The penalty can range from imprisonment in the State prison for more than a year, up until death.
Grand jury Jury of 12 to 23 people that consider felony accusations. If there is sufficient evidence, the grand jury may return an indictment when at least 12 people agree.
IndictGrand jury'sdecision that probable cause exists to accuse a person of a crime. See: Probable cause hearing.
IndictmentGrand jury's accusation based upon probable cause, that the accused could have committed a crime. See: Probable cause hearing.
InjunctionAn order prohibiting someone from performing a certain act or requiring someone to take a certain action. See: Equity.
InterrogatoriesWritten questions submitted by one party to another party in a lawsuit, that seek information to prepare a case for trial.
JurisdictionArea of authority, including geographic area and/or types of cases a court has the power to hear.
LitigationLegal proceeding which enforces a right or seeks a remedy.
Marital masters Lawyers appointed by the Superior court to conduct hearings and to rule on divorce and custody cases. Their decisions are reviewed and approved by a Superior court judge.
MisdemeanorsLesser crimes, such as driving without a license. The penalty can be a fine, (usually up to $2000 for Class A and $1200 for Class B), or imprisonment of less than a year in a county jail, called a House of Correction.
Nolo contendereLatin phrase meaning "I will not contest it." The defendant does not admit or deny the charges, but is sentenced by the judge without a trial.
Oral argument Verbal presentation to a judge on issues of law in a case.
OpinionWritten decision of a judge on issues in a case.
Partition of A legal proceeding to determine parties' real estate interests in or ownership of real estate.
Per curiam opinion An opinion of the entire Supreme Court rather than an opinion written by any one judge.
Petit jury As defined by the NH Constitution, a group of 12 citizens who decide the outcome of a trial. The decision must be unanimous.
Probable causeAt the moment of arrest, the police officer has facts which warrant the belief that the person committed the crime.
Probable cause A hearing before a District or Superior Court judge to determine whether a person charged with a crime should be held for the grand jury (also known as being bound over).
Probation A type of sentencing in which a person is not held in jail, but must comply with certain conditions including supervision by a probation officer.
Restitution Payment and/or services performed by a person convicted of a crime to compensate the victim or the State.
Restraining OrderAn order imposing limits on a person's ability to contact another person. A restraining order is often issued in domestic violence situations when a domestic violence petitionis filed in the District or Superior court, or the Family Division.
StatuteLaws passed by State legislature or the US Congress.
Summarily affirmedAction of the Supreme Court leaving unchanged the result from a lower court or State agency.
Summarily reversedAction of the Supreme Court changing the result from the lower court or State agency.
Trial jury See: Petit jury.
UnanimousAgreement by all.
ViolationMinor infraction such as speeding. The penalty is usually a fine.

November 1998

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