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Bar News - August 23, 2013

Morning Mail: Rules Regarding Counsel at Arraignment Raise Concerns

Editor’s note: An shorter version of this letter appeared in the print version of Bar News. The full version is below.

I read with interest the July 19, 2013, Bar News article by Kristen Senz concerning proposed rules for appointing counsel for a defendant prior to arraignment. These proposed rules appear to me to contain many unresolved conflicts. I voiced my concerns to the Supreme Court and I understand that those concerns were forwarded to Judge Kelly and the Advisory Committee on Rules for additional analysis. Let me give the highlights of that communication.

Within the proposed Circuit Court (District Division) Criminal Rules 2.20, 2.21, 2.22 and 2.23 there appear to be many unresolved conflicts. Some of these conflicts may wind up causing more difficulty than if the proposed rule was shortened to a more manageable rule that is more directly on-point and on-target toward the desire of having appointed counsel at an arraignment if requested by a defendant. Some difficulties I’ve discussed with other attorneys include:
  • The proposed rules address procedures when a person is arrested and not when they are charged. This appears to conflict with other jurisdictional standards. RSA 592-A:7 specifies that proceedings before a circuit court start only by complaint. RSA 597-A:7, I. The proposed rule (2.20) requires action at arrest and not after jurisdiction is vested with the court. The establishment of jurisdiction (at the time of filing of a complaint) was reinforced in State v. Jeleniewski when the Supreme Court instructs that “judicial proceedings are commenced by the filing of a complaint in court, and not merely by the signing of the complaint.” State v. Jeleniewski, 147 N.H. 462, 468 (2002) (text in italics in the original). Jeleniewski continues to explain that until a complaint is filed with the court the State is “not committed to prosecute” and a “defendant is not obligated to defend himself.” Id. at 468.

  • The level of offense at arrest is, with limited exception, presumed by statute to be a class B misdemeanor unless the State files, on or before the date of the arraignment, the appropriate form indicating the intent to seek class A penalties. RSA 625:9 IV (c). Until such form is filed the presumption of a class B misdemeanor continues. This was recently analyzed in State v. Blunt (2012-165, opinion issued March 13, 2013). Accordingly, where a charged crime does not meet any exception and is therefore presumed to be a class B misdemeanor by statute and case law, the proposed new rules appear to be in clear conflict.

  • Proposed Rule 2.21 uses terms such as “waiver” and “continued” when addressing arraignments. The proposed rule appears to conflict with Circuit Court Rule 2.6 a (2) (existing Rule 2.6 a (2) allows for only a continuance of arraignment). Several problems surface with the new proposed rule:

    • Pro se defendants can waive arraignment on a B misdemeanor and just appear for trial. A waiver to schedule a trial has additional complications should the defendant not be familiar with basic process and procedure, has not requested discovery, or there is an issue of competency.

    • Any temporary protective order issued by a bail commissioner will not be adopted as a final order by a judge. There are attendant due process issues concerning the temporary order/final order (i.e. temporary disqualification from purchasing a firearm).

    • Upon a “waiver” under the proposed rule there is no mechanism to ensure that a defendant is aware of the actual charges levied against him at the filing of the complaint. For example, if the police submit a complaint to a prosecutor for filing and the complaint is changed after arrest and before filing a defendant can appear in court for trial on a charge on which he has no prior notice. By way of example, a defendant may have been arrested on a violation level simple assault mutual combat but a prosecutor had later filed the charge with the court as a class B misdemeanor simple assault. A prosecutor may also have added additional charges not known to the defendant should there be no arraignment. There are obvious due process problems. See also RSA 604-A:2, IV (a) – (c) (statutory process for a court and not a bail commissioner to address possible mental health issues before trial).

    • The “Orders and Conditions of Bail” form, NHJB-2369 (11/08), says “It is hereby ordered pending” followed by a series of checkable boxes. Those boxes are: “arraignment,” “trial,” “probable cause hearing,” and “appeal.” When a bail commissioner sets bail, they generally check “arraignment.” If the defendant is allowed to “waive” arraignment their bail would appear to end unless a judge re-issues a bail form. If a judge re-issues a bail form the defendant would not be on notice of the bail conditions that would be in place until trial.

    • A “waiver” as proposed by the new rules should not be confused as being analogous with a waiver in a Superior Court case. In a case within the Superior Court system due process is protected through counsel a written acknowledgement about the charge, etc. See NH Superior Court Rule 97.

  • In order to have counsel appointed a defendant must personally appear before the court and be informed by the court as to certain rights and eligibility requirements. The statute makes no allowance for a bail commissioner to engage in this discussion with a defendant. See RSA 604-A:2, I. The proposed rules appear to conflict with RSA 604-A:2.

  • The proposed rules clearly place new requirements on a bail commissioner. The authorization for and appointment of bail commissioners is governed by statute. See RSA 597:15-a. A bail commissioner, when establishing the terms and conditions of bail, has statutory powers that generally parallel those of a judge. See RSA 597:18. The proposed rules impose requirements on bail commissioners that appear to be more appropriately governed through the legislative branch. See RSA 597:15 through 597:21.
For all these reasons (and I’m sure that there are more) I believe that the enactment of these proposed rules will cause a degree of un-necessary confusion and negatively impact the efficiency and effectiveness of the court process we all seek. After several discussions with other criminal practitioners please allow me to suggest a streamlined method of reaching the goal of appointing counsel before arraignment and after jurisdiction is established (after the filing of a complaint): On all filed class A misdemeanors and in all filed felonies the court should schedule a status hearing, with notice to defendants, to address the sole issue of appointed counsel. This status hearing could be accomplished using a clerk and having a defendant either waive appointed counsel in writing or request appointed counsel by application. This type of status hearing would minimize the requirement for additional rules and the conflicts with jurisdiction, statutes and case law evident within currently proposed rules. Indeed, only one additional District Court Rule need be added – something along the lines of:
  • “After the filing of a class A misdemeanor or any felony complaint and before the scheduled arraignment date on said complaint(s) the Court shall schedule a status hearing before the scheduled arraignment date to determine whether a defendant waives appointed counsel or wishes to apply for appointed counsel. The court may take no other action at this hearing.”
We all have an interest in assuring that a defendant is able to exercise a defined right to counsel. However, the mechanics to reach that goal need not be cumbersome or ambiguous nor should they fuel un-necessary appeals. I look forward to seeing a manageable rule come out of this process.

Paul Halvorsen
Concord, NH

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