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Bar News - May 17, 2013

Rules in the Works for Counsel at Arraignments

The NH Supreme Court said it intends to adopt new rules governing the availability of counsel at arraignments.

A notice issued May 6 said the Court was providing advance notice of its intention to adopt new Circuit Court District Division Rules 2.20 to 2.23, and included a text of the rules in an appendix. (See for the text of the rules.)

"Notice of its intention to adopt these rules is being provided to enable attorneys and the Circuit Court District Division to prepare for implementation," the Court said.

"The Court will issue an order in the future formally adopting the rules and establishing a date for the rules to take effect. Prior to issuing such an order, the Court will consult with the Administrative Council for the Judicial Branch about when the rules should be made effective, and whether they should be implemented on a pilot basis in a limited number of district division courts or on a statewide basis."

Christopher Keating, executive director of the Judicial Council, said he believes the intent of the rule change is to enable an indigent defendant to apply for and obtain the assistance of counsel as soon as feasible after the initiation of formal criminal proceedings. Under current practice, some criminal defendants are not given information about how to obtain defense counsel at state expense until formal arraignment, which sometimes can be a long stretch of time after arrest.

"The intent of the changes is to ensure that when an indigent defendant is arrested on a charge that carries with it the potential for jail time, the defendant is placed on an equivalent footing as a person of means would be," said Keating.

Circuit Court Administrative Judge Edwin Kelly said a subcommittee of the NH Supreme Court Advisory Committee on Rules worked on the new rules, in the wake of an unpublished 3JX decision by the Supreme Court last April, Nygn v. Manchester District Court, that cited "potential systemic procedural issues" in assuring the availability of representation for clients at earlier but critical stages in criminal proceedings. A reconsideration motion, partially granted, referred the question of procedures for the appointment of defense counsel for the indigent to be considered by the Rules Committee.

The reconsideration order observes "that our precedents acknowledge the right of indigent defendants to representation by appointed counsel at arraignment," and cites State v. Jeleniewski, 147 NH 462-68 (2002).

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