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Bar News - April 15, 2015

Opinion: Felonies First: Pursuing Optimal Process


In last month’s Bar News, my friend Mike Iacopino expressed the disquietude currently shared by a number of criminal defense attorneys pending the fate of Senate Bill 124. Some fear that the “felonies first project” will result in a weakening of due process safeguards, and thereby generate an increase in incarceration. Arousing the greatest unease is the perception that probable cause hearings will be effectively eliminated. While I have great respect for Mike, I believe the apprehension is unwarranted.

Though probable cause hearings are a statutory right under the present system, one would be hard pressed to exalt them as the apotheosis of due process safeguards. Probable cause hearings are often rather desultory proceedings in which defense counsel seek information otherwise unavailable; and the hearings are generally inadequate to the task of meaningfully challenging the sufficiency of the evidence, given the low standard of proof. Although a probable cause hearing would be discretionary, rather than automatic, under the proposed legislation, an accused citizen would still have a statutory right to challenge probable cause at any time prior to indictment.

SB124 requires the state to provide incarcerated defendants with copies of all discovery in its possession within 10 days of arraignment, and within 20 days to non-incarcerated defendants. Those time limits were not arrived at by coincidence; they correspond to the current district court time limits for scheduling probable cause hearings. The vast majority of district court probable cause hearings are waived in exchange for a promise of discovery; but not without some measure of haggling and inconvenience for defendants. The proposed legislation would eliminate the perfunctory appearance at district court; and the statutory guarantee of faster access to discovery would assure that attorneys could make a well-informed decision about the potential benefits of requesting a probable cause hearing.

If a defendant determines that it would be to his advantage to seek an adversarial hearing, the superior court venue enhances defense counsel’s ability to frame the issues. The judge who receives the request won’t merely decide whether a probable cause hearing is necessary; that judge will have jurisdiction over the matter through final disposition. Therefore, the request for a hearing presents an early opportunity for advocacy. Effective advocacy will focus the court’s attention on deficiencies in a complaint or make a compelling argument that a material element is without factual basis.

Many in the defense bar are sanguine about the prospect of superior court judges being receptive to well-written hearing requests. Given the right facts, good lawyering will persuade a judge that an adversarial hearing will assist the court in its determination of probable cause. Given the wrong facts, a hearing is unlikely to benefit the defendant anyway.

Defendants’ due process concerns extend to issues other than probable cause hearings. We should entertain the possibility that there may be ways to improve the criminal justice process so that it inures to the benefit of defendants.

As I have already mentioned, defendants would have faster access to police reports, witness statements, and other evidence under SB124. Defendants would no longer have to appear at two arraignments in two different courts on the same complaint. Defendants who are held on bail would no longer languish for months in pretrial status during the “bound-over” period. Defendants who seek to resolve their cases quickly would be in the court that can accommodate them.

The way we process felonies now isn’t perfect. SB124 is a bold initiative that can deliver benefits to victims, prosecutors, corrections and defendants; it warrants both our support and our vigilance to ensure that it delivers on its great promise.

Randy Hawkes

Randy Hawkes is the executive director of the New Hampshire Public Defender Program.

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