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Bar News - November 16, 2012

Innovation in Tough Times: Derry Court Pilot Project Adds Misdemeanor Hearing

Innovations in Tough Times
Part 1: Probation Reform Program Brings New Hope, July 13, 2012

Part 2: Giving Children Greater Voice In Abuse & Neglect Proceedings, August 17, 2012

Part 3: Rethinking Jail: The ‘Community Corrections’ Approach in Sullivan County, September 14, 2012

Part 4: Derry Court Pilot Project Adds Misdemeanor Hearing, November 16, 2012

Part 5: Judge Holds Court in School, February 22, 2013

Part 6: The Future of Drug and Mental Health Courts in NH , April 19, 2013

Pretrial conferences expedite pleas, reduce backlog

Editor’s note: This is the fourth story in the series, "Innovation in Tough Times," which is highlighting new approaches by the courts and justice system, despite tight budgets.

The 10th Circuit - District Division court in Derry is testing a new pretrial conference process for all misdemeanor cases that could be rolled out statewide by the end of 2013.

Circuit Court Administrative Judge Edwin Kelly said the process builds on the success of mandatory pretrial negotiation sessions for plea-by-mail motor vehicle cases which are saving money and time for law enforcement, freeing up judge time, and leading to more realistic court scheduling.

The misdemeanor pilot project in Derry, started about two months ago, requires prosecutors
NH State Police
Pretrial Policy Questioned

Pretrial negotiations in minor traffic cases would be more meaningful if state police prosecutors had more discretion.

That was the opinion of Circuit Court Administrative Judge Edwin Kelly and some Concord defense attorneys upon hearing about a NH State Police policy that restricts prosecuting officers from placing complaints on file or dismissing charges, unless it is clear to the prosecuting trooper that a charge has no merit.

"They can place a complaint on file in cases such as an unregistered or uninspected [vehicle], where they may have gotten it done the next day, or a case where they were asked to fix an equipment issue or produce a license or other document," State Police Capt. John LeLacheur said.

In other cases, the prosecuting trooper can either negotiate a reduced fine or refer the case to trial, where the defendant can request a different disposition from the judge.

James Moir, a Concord criminal defense attorney, said that by only allowing prosecuting officers to decrease fines, the new mandatory pretrial negotiation process ignores the reason most people plead not guilty to speeding tickets and other minor motor vehicle violations.

"For most people who have speeding tickets, who send it in not guilty, it has nothing to do with working out $50 less of a fine; it’s because they want to try to avoid the conviction," Moir said. "The fact of the matter is, [the troopers] do have the authority to place things on file or drop the charges, and that would make it more meaningful."

Judge Kelly said he was not aware of the state police policy that limits potential dispositions in plea-by-mail cases during pretrial negotiations.

"It doesn’t make any sense to me that any pretrial resolution would be taken off the table… but it’s up to each prosecuting agency what they’re going to do with a case," Kelly said.

Tracy Connolly, prosecutor for the City of Concord, said she and the police departments for which she prosecutes traffic cases have a slate of dispositions available for resolving cases during pretrial negotiations. Possible outcomes at the city’s pretrial negotiation sessions include placing a complaint on file, with or without conditions, as well as dismissing cases, reducing or suspending fines, and other plea agreements.

In some cases, placing a complaint on file is the appropriate disposition, Connolly said, because "everybody makes mistakes." She said that placing a complaint on file is an option typically reserved for people who have no record of violations or complaints on file and in whose cases there were no aggravating factors, such as a person having been placed in danger.

Capt. LeLacheur said state police prosecutors don’t consider extenuating circumstances at pretrial negotiation sessions, which are not attended by the troopers who wrote the tickets.

"We try not to make prosecutorial decisions based on issues like that, if the person who wrote the ticket is not there," he said.

Chuck Temple, director of the criminal law practice clinic at the UNH School of Law, said it’s important for prosecutors to have a range of negotiation tools to ensure justice is served.

"They shouldn’t be taking non-conviction resolutions off the table," Temple said. "They’re not there to get convictions; that’s not their job. Their job is to get justice."

Temple and Moir said the concept of pretrial negotiation for plea-by-mail cases makes sense, in terms of saving time for judges and money for law enforcement agencies.

"I understand where they’re coming from, where they want to prevent overtime for troopers," Moir said. "The idea of having a trooper assigned to do this kind of negotiations, in theory, I think is a good idea."

to supply discovery at pretrial conferences, which take place in front of a judge and provide an opportunity for a formal discussion about possible case resolutions, said Kelly. For prosecutors, the new procedure has "moved up their timeline, but they could see the benefits as well," he added.

Misdemeanor pretrial conferences in Derry are usually scheduled during arraignment and take place about 30 days later. Kelly said the process has been working well so far and that the court is "favorably inclined" to expand it to other courts next year.

The plea-by-mail pretrial negotiation process for motor vehicle violations, which started last fall, has already saved more than $90,000 in state police witness fees and about 100 days of judge time, according to court and state police officials. The additional time has been reallocated to other criminal, family division and small claims cases.

"That’s a significant savings to us in our ability to hear cases in these days of diminished resources," Kelly said.

Historically, motorists who pleaded not guilty to traffic violations by mail were immediately assigned a trial date, even though fewer than 8 percent of them ever actually stood trial. The majority either failed to appear in court or negotiated plea deals with a prosecutor while the officer who wrote the ticket waited in the courtroom - and then left without ever testifying.

Now, people with disputed traffic tickets are required to attend pretrial negotiation sessions scheduled by the court which take place at the courthouse but not in front of a judge. Prosecutors meet with drivers individually and make offers to resolve the cases. If an offer is rejected, a trial is scheduled. If a defendant fails to appear at the negotiation session, an administrative finding of guilt is entered.

Speeding tickets typically are negotiated down one level on the fine schedule, according to State Police Trooper Kevin Noonan, who handled state police pretrial negotiations in Concord on a recent Thursday.

"There’s no judge here, so placing things on file is not an option," Noonan told a gallery full of anxious drivers, adding, "There’s no more negotiation on the day of trial."

State police policy limits the use of non-conviction resolutions during plea-by-mail negotiations, according to State Police Capt. John LeLacheur. Some defense attorneys argue state police prosecutors should have more discretion (see sidebar this page).

State statistics show that of the 15,432 people who have been scheduled for mandatory pretrial negotiation for traffic cases since last fall, 9,350 agreed to a negotiated disposition at the pretrial session, 2,983 failed to appear, and 1,769, or 11.5 percent, were scheduled for trial. The remaining cases had to be rescheduled for pretrial sessions.

Kelly acknowledged the new process requires some motorists to make two trips to the courthouse to settle a case, but said the operational efficiencies were worth it.

"You’re always having to balance the inconvenience to the parties with the ability to efficiently operate the courts," he said.

The City of Concord, which has been hosting mediation sessions for contested motor vehicle violations since at least 2007, used a different process until the courts made negotiation mandatory earlier this year, according to City Prosecutor Tracy Connolly. When a driver in Concord, Bow, Loudon or Dunbarton pleaded not guilty by mail, the city sent an invitation to a voluntary mediation session where the matter could be negotiated. If the driver failed to appear for mediation, the case was scheduled for trial, rather than the motorist being found administratively guilty, Connolly said.

Following the creation of the NH Circuit Court last year, state judicial officials initially intended to shift plea-by-mail cases from local courtrooms to the NH Department of Safety Administrative Bureau of Hearings, but the cost associated with transferring such a large volume of cases made the move impractical, said Bureau Administrator Chris Casko.

Instead, pretrial negotiation started in fall 2011 as a pilot program in three courts and has since become mandatory across the state. The program has saved time for judges and money for law enforcement, Casko said, and it keeps more police cruisers out patrolling roads and highways, rather than sitting in courthouse parking lots.

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