Bar News - May 18, 2007
Criminal Procedure Rules Drafted
By: Dan Wise
A committee of prosecutors and defense attorneys has completed work on a proposed New Hampshire Rules of Criminal Procedure that codifies and incorporates in one place rules pertaining to criminal cases pursued in the district and superior courts.
The 77-page draft has been submitted to the Supreme Court Advisory Committee on Rules. (See www.nhbar.org under “Newsroom Highlights” for a link to the document.) “The goal was to make procedure in criminal cases more accessible and understandable to the practitioner, parties and the public,” the drafting committee said in its preface.
The criminal procedure rules are not to be confused with the proposed Rules of Civil Procedure, which were submitted several months earlier and are on the Rules Committee’s public hearing docket in June—or the proposed Rules of Professional Conduct, which have been posted for pre-adoption comment by the NH Supreme Court (June 1 deadline for comments).
Richard Guerriero, litigation director of the NH Public Defenders Office, worked on the draft over the past seven months along with Simon Brown, chief of the Criminal Justice Bureau, NH Attorney General’s Office; Chief Appellate Defender Christopher Johnson, and Hillsborough County Attorney Marguerite Wageling. (Guerriero and Brown co-chair the NHBA Criminal Justice Section, which was to review the proposal at its meeting in mid-May.)
In a preface to the criminal procedure rules, the committee emphasized that it sought not to create new rules, but to “consolidate the law, existing court rules and accepted practices.” The authors added: “Nor did we attempt to change any rules or policies, or otherwise advocate for our individual beliefs about rules that should be added or changed. However, where there were contradictory rules or rules which have fallen out of use, we did our best to write a rule which describes current, accepted practice.”
The preface makes reference to a proposed set of criminal procedures that was drafted by another committee, chaired by current NHBA President Richard B. McNamara, that convened in 1986 and submitted a set of rules approved by the NHBA. (That proposal was not submitted to the NH Supreme Court.) The preface notes that while the earlier proposal served as a starting point, many changes were made to accommodate changes in the law and rules in the intervening years.
Guerriero said he hopes the criminal rules draft will be reviewed and posted for comment by the Rules Advisory Committee by the fall of 2007. The NHBA Board of Governors plans to review the proposal at an upcoming meeting and to provide comment, if appropriate, to the drafting committee or to the Advisory Committee.
Contents of the Criminal Procedure Rules
The proposed New Hampshire Rules of Criminal Procedure is organized into the following sections:
I. Scope, Interpretation, Adoption, Effective Date
II. Preliminary Proceedings
(such as complaints, warrants, summons, appointment of counsel, probable cause hearings in district court, etc.)
III. Charging Documents in Superior Court
(definitions, grand jury, waiver of indictment)
IV. Arraignment, Pleas and Pre-Trial Proceedings
(including discovery, notices, pretrial motions, videotape testimony, subpoenas)
V. Trial Procedures
(venue, transfer, joinder of offenses and defendants, trial by court or jury; jury issues; trial procedure; verdict; presence of counsel; disability of judge, and more)
VI. Sentencing and Post-Sentence Proceedings
(including probation revocation and annulments)
(bail pending appeal, transcripts, appeal deadlines)
VII. Rules Applicable in All Proceedings
(filings, conduct of attorneys, suspension of rules, plain error, assignment of judges, recusal, motions for reconsideration, special procedures for sex-related offenses involving children, criminal contempt, photographing and recording trials, interpreters, communications with the court, and more)
A PDF of the 77-page proposal is posted at www.nhbar.org under Newsroom Highlights on the home page.