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Bar News - March 19, 2014

Criminal Discovery and Motions Deadlines Take Effect April 1

Changes to NH Superior Court Rule 98 represent a shift to a felony case flow model that gives judges more control and could result in felonies filed directly in Superior Court.
Timelines and deadlines for discovery and pretrial motions in Superior Court criminal cases will change April 1 when a new temporary rule takes effect.

Part of an overall plan to streamline felony case flow, the temporary amendments to Superior Court Rule 98 require discovery to be disclosed and motions to be filed within certain time frames after arraignment, rather than before trial.

The current rules require dispositive motions to be filed 45 days before the trial date in a case. That has meant that a defendant could file a motion to suppress within the timeline, but without sufficient time to allow for the state to respond, for the court to schedule a hearing, and for the court to issue an order before the scheduled trial date. The amended rule requires motions to be filed no more than 45 days after arraignment.

“It just makes the scheduling more fluid and efficient,” NH Superior Court Chief Justice Tina Nadeau said.

The amended rule also requires the state to provide all pretrial discovery within 10 days of a not-guilty plea (previously the state’s deadline was either 10 days or 30 days after the not-guilty plea, depending on the type of discovery).

“Moving the discovery up a little may require a little more communication between the county attorney and the police, to get the discovery to them, which is a good thing,” Nadeau said.

The state also must provide a meaningful, written plea offer no less than 14 days prior to the dispositional conference, and the defense must respond to the offer within 10 days of receipt.

The amended rule also requires the defense to provide a witness list at least 10 days before the final pretrial conference or at least two days before a pretrial evidentiary hearing. Any motion by either party seeking additional discovery must be filed no more than 45 days after the defendant pleads not guilty.

Defense attorney Richard Samdperil, co-chair of the NH Bar Association Criminal Law Section, is representing the section on an attorney working group convened by Nadeau to work on the felony case flow plan. In an email to Bar News, Samdperil said he thinks the changes to Rule 98 “will promote the prompt exchange of information between prosecutors and defense lawyers, which will help resolve many cases earlier.”

Prosecutors participating in the working group could not be reached for comment.

Determining filing deadlines by counting backwards a number of days from an event that hasn’t happened yet can lead to scheduling issues and continuances. The Superior Court a few months ago instituted a new set of continuance guidelines intended to introduce uniformity among judges (who retain discretion over whether to grant continuances) and accountability among attorneys.

While these changes may serve to fast-track certain felony cases that have the potential for early resolution, judges will retain the discretion to change the rules for complex cases that require greater time and attention, Nadeau has said.

In her effort to make the disposition of felony cases more efficient, Nadeau hopes to eventually see the court overcome another obstacle to early resolution: the “bind-over period.” Typically, not much happens in felony cases during the 90-day period between a finding or waiver of probable cause in Circuit Court and indictment in Superior Court.

Nadeau says she would like to see county attorneys take control of cases earlier, under a more “vertical prosecution model” that would involve early and accurate charging of felonies directly in superior court.

A group of defense attorneys, judges, court administrators, and prosecutors has reviewed and provided feedback on the changes to Rule 98 and other components of the felony case flow plan. Nadeau recently added the incoming president of the NH Association of Chiefs of Police – Enfield Police Chief Richard Crate – to join the working group, so that its discussions can include a law enforcement representative.

The next project of the case flow initiative involves getting Superior Court judges involved in felony cases prior to indictment.

Known as the Initial Appearance Project, Strafford and Cheshire counties will soon be launching the program, the logistics of which are still being worked out, Nadeau said. (Look for more reporting on this in an upcoming issue of Bar News.)

The Initial Appearance Project is the second pilot program involving members of the judiciary to spin out of the case flow initiative. The Settlement Judge Program, which began earlier this year in Nashua, offers parties in felony cases the opportunity to sit down with a judge in an informal setting to discuss the facts of the case and any impediments to resolution. Prosecutors were reluctant at first, but Nadeau says the program is working well now and may expand to another county soon, once formal protocols for it are put in place.

It is unclear when the Supreme Court might begin the process of adopting the changes to Rule 98 on a permanent basis.

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