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Bar News - October 15, 2014

Working to Achieve Better Outcomes for Criminal Justice


Chief Justice Tina L. Nadeau
The way felonies have been handled in the criminal justice system has not changed for hundreds of years. While the world outside the courtroom has progressed, embraced innovation, enhanced performance and improved the delivery of service, the processing of felonies has essentially remained stagnant. It is time to examine the process and determine whether we can make changes that improve the way the system functions and better the lives of those who depend on us to deliver justice.

One change that I believe will significantly improve outcomes for all involved in the system is requiring that felonies be initiated in the Superior Court, because that is the only court with jurisdiction to resolve felony cases by trial or plea. To understand the value of this change, we need to review what happens now. Currently, the police make an arrest and file a felony complaint in the Circuit Court. An arraignment is then conducted during which the judge informs the defendant of the charges and sets bail. A probable cause hearing is scheduled 10 to 30 days later, at which bail can be reconsidered. Once probable cause is found, the case is “bound-over” to Superior Court. Circuit Court staff then transfer the paperwork to the Superior Court where nothing further happens until the County Attorney presents the case to the grand jury for indictment, anywhere from 30 to 120 days from bind-over. Several weeks after indictment, the defendant is arraigned in Superior Court, and the initiating process is repeated.

The result? Four to six months of unnecessary delay while witnesses’ memories fade, resolution and restitution for victims is delayed, the opportunity to impose consequences close in time to the criminal conduct is lost, staff work is duplicated, and over-time costs to police and county officials grow. Can we not do better? Filing felonies first in Superior Court will not only streamline a centuries-old process, but it will give us an opportunity to employ evidence-based practices that have been proven around the country to reduce the likelihood that a defendant will reoffend. Many studies have demonstrated the value of imposing consequences to criminal behavior as soon in time as possible after the commission of the offense. How can waiting 4-6 months from arrest to even present the case to the court with jurisdiction, possibly achieve the goals of reducing crime and enhancing public safety effectively?

Filing felonies first in Superior Court will no doubt require a significant structural change in our process, but it is change that is necessary to achieve long-overdue efficiency. For example, filing felonies first in Superior Court will eliminate the need to schedule a probable cause hearing in every case. Why does that make sense? Because those hearings are used now as a way for the defendant to obtain police reports early. To be sure, providing police reports early is an integral component of resolving cases fairly. But that can be accomplished by making changes to the system to allow for an early exchange, and eliminating unnecessary hearings will give the police the time they need to prepare the reports. We should not, however, schedule every case for a hearing, requiring police and prosecutors to appear, only to have the hearing waived in exchange for receipt of police reports. Instead of automatically scheduling every case for probable cause, a defendant can request a hearing where probable cause is truly at issue.

In 2013, 3,868 probable cause hearings were scheduled in New Hampshire. Of those, 83 percent were waived by the defendant, usually after the police, prosecutor and judge had appeared at court for the hearing. In 16 percent of the cases, probable cause was found or the defendant was later indicted. Only .9 percent of the probable cause hearings resulted in a defendant leaving the court house with no charges. So why are we scheduling 107 felony cases for probable cause hearings when only one defendant derives the desired benefit? Because that is the way it has always been done.

Historically, probable cause hearings were necessary because grand juries met only once or twice per year. Now, grand juries meet every month and defendants can still waive grand jury indictment. So by filing felonies first in Superior Court, judges with jurisdiction to hear the case can begin to manage it early in the process.

I recognize that for any system to work, everyone affected by change should have a chance to influence it. And I appreciate that change can be unsettling. Change can produce feelings of loss and fear. Change challenges our basic instincts and prompts us to hold on to what is familiar. I am hopeful that everyone invested in a progressive criminal justice system, however, will suspend their firmly held beliefs, and will challenge themselves to imagine a better way. If we only think about our individual roles in the system, then confronting problems and searching for solutions becomes a very narrow and confining endeavor. I am optimistic that we all can listen to others interested in the criminal justice system, who may have different views, and work together to make our criminal justice system better.

If you are in doubt about the status of any meeting, please call the Bar Center at 603-224-6942 before you head out.

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