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Bar News - March 18, 2015

Opinion: Felonies First, Due Process Last


SB 124, otherwise known as the “Felonies First” pilot program, is a misguided attempt to streamline the criminal justice system. Like most attempts to streamline any judicial process, fairness and due process suffer in the name of efficiency.

SB 124 as amended by the Senate Judiciary Committee creates a pilot project whereby all felony prosecutions in the pilot counties will be filed in the Superior Court. This is a substantial change in criminal practice.

For the most part, felonies are now initially filed by complaint in the Circuit Court - District Division where bail is set and a statutorily mandated preliminary examination or “probable cause” hearing is held. The proponents of SB 124 claim it is more efficient to commence felony prosecutions in the Superior Court and doing so will provide “the same or better justice sooner.” In reality, “Felonies First” will eliminate age-old due process safeguards and contribute to over-criminalization and accompanying over-incarceration.

The single-most offensive part of SB 124 is the virtual elimination of the statutorily mandated preliminary examination or “probable cause hearing.” A determination of probable cause when one is held or bailed after an arrest is a constitutional requirement under both the state and federal constitutions. Historically New Hampshire has provided an adversarial process for the determination of probable cause.

Probable cause hearings are referenced in the New Hampshire case law as far back as 1850. New Hampshire law, for centuries, has provided a probable cause hearing to people accused of felonies as a matter of right. The burden of proof at a probable cause hearing, while not a substantial burden, rests with the state. The accused has the right to cross-examine witnesses and present evidence.

Historically, the probable cause hearing has been a safeguard to assure that accused citizens are not detained or bailed without sufficient evidence to maintain a prosecution. SB 124 effectively eliminates the safeguard of a probable cause hearing and turns the burden of proof on its head.

Rather than providing a safeguard against detention without probable cause, SB 124 places a burden on the accused to “challenge probable cause.” In other words, where the state historically has the burden to establish probable cause, the accused would now have the burden to challenge probable cause. In doing so, the bill requires the accused to assert “a claim that a material element of the charge is without factual basis or that the charge is legally insufficient to constitute a felony offense.”

Such burden-shifting is incongruent with the notion that the state should bear the burden of proof in criminal proceedings. Requiring an accused person to allege the absence of a factual basis is also inconsistent with the right to remain silent as guaranteed under both state and federal constitutions. Moreover, even if the accused chooses to forgo his right to remain silent at this early stage of the proceeding, the court is not required to provide a hearing. SB 124 requires only that the court “determine whether a hearing is necessary to assist the court in its determination of probable cause.” Despite claims to the contrary, SB 124 does not mandate a probable cause hearing upon request of the accused. SB 124 relegates the important historical constitutional protections afforded by probable cause hearings to a matter of convenience for a judge.

The proponents of Felonies First claim that SB 124 will reduce the time from arrest to indictment. There are simpler ways to accomplish that goal in felony cases. Impose a time limit by rule or statute, much as the New Hampshire Supreme Court did in 1980 in State v. Hastings, requiring that indictments must be presented within 60 days of arrest – a timeframe that was again approved by the court in 1992 in State v. Hughes.

The proponents of Felonies First also cite statistics demonstrating that the vast majority of felony arrestees choose to waive a probable cause hearing and, in those that proceed to a hearing, all but a few result in a finding that probable cause exists. Touting these statistics demonstrates a misunderstanding of the importance of a probable cause hearing.

As long as police officers know that there will be an early test of their probable cause, they will make sure that they undertake their investigations properly and don’t cut corners. As long as there is an early test of probable cause, prosecutors will be forced to review their cases early and determine whether the case requires a felony prosecution or can reasonably be resolved as a lesser offense. As long as a probable cause hearing is required, there will be a judicial check on the ability of the state to detain or bail a person accused of a felony.

The most important statistic is the one that measures the effectiveness of a process. The requirement of a probable cause hearing as exists in the current statute protects 100 percent of felony arrestees 100 percent of the time. Felonies First eliminates that protection and diminishes justice.

Michael J. Iacopino

Michael J. Iacopino has been a criminal defense lawyer for more than 30 years. He is a shareholder and president of Brennan Lenehan Iacopino and Hickey. He is a board member and former president of the NH Association of Criminal Defense Lawyers.

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