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Bar News - February 17, 2016

Court News: New Criminal Rules of Procedure Take Effect March 1


The NH Supreme Court on Jan. 20 adopted the New Hampshire Rules of Criminal Procedure, a total reorganization of the court rules that represents a more logical flow from case start to finish.

NH Supreme Court Justice Robert Lynn, who chairs the court’s rules committee, called New Hampshire’s existing rules of criminal procedure “a complete mishmash” and said the new document organizes the rules in a logical order and arranges them in thematic groups.

The newly adopted rules take effect March 1 for all counties except Strafford and Cheshire, where the Felonies First legislation was implemented Jan. 1 with its own set of rules. Belknap County will join Strafford and Cheshire on July 1, with other counties to follow on a schedule to be determined by the court. The Felonies First rules incorporate the reorganization, as well as rules specific to the legislation, which placed original jurisdiction for felony cases with the Superior Court.

The NH Rules of Criminal Procedure were originally approved by the NH Supreme Court in 2010, but because of pending system changes, including the rollout of the Circuit Court and the NH e-Court Project, the rules were never adopted. To ensure that the rules were up to date and conformed with current practice, the Court reappointed an ad hoc committee that had originally reviewed them in 2010. Committee members were co-chairs Richard Guerriero and Chris Johnson, and James Vara, Thomas Velardi, and Nancy Wickwire.

“They did all of that in eight months and they really did a terrific job,” said Justice Lynn. “I think the bar really owes a debt of gratitude to that whole committee.”

Johnson, chief appellate defender at the NH Public Defender, said the goal was to simplify the rules and make things easier to find. “It was really not about improving the law or the content at all,” he said. “The idea was that with the rise in pro se defendants and the newer lawyers in New Hampshire, the practice was just unnecessarily complicated.”

There were a few changes from the 2010 version that prosecutors and defense attorneys might want to note. These were due either to changes in the rules that were approved through the regular review process and coincided with the adoption of the new rules, or that were designed to keep the rules in line with current practice.

Rules 4 and 5 Counsel at Arraignment. These rules were added since 2010 in an effort to ensure that defendants have access to legal representation in the early part of a case. Some of the changes deal with allowing a single public defender present at the courthouse during arraignments to represent multiple defendants.

Rule 20 Joinder of Offenses and Defendants. Subsection a(4) is new, as required under the NH Supreme Court’s decision in State v. Locke (2014). The Court adopted, in that decision, the model penal code requirement for mandatory joinder for certain offenses, so now the rules reflect that offenses based on the same conduct or that arise from the same criminal episode must be brought at the same time.

Rule 22 Selection of Jury. Regarding the selection of alternate jurors, additional preemptory challenges are now provided for in the rule. If you have between one and three alternates, each side receives one additional preemptory challenge. If you have between four and six alternates, each side receives two additional challenges.

The new rules also include provisions related to panel voir dire, which is now allowed in all criminal cases by statute (RSA 500-A:12-a). Judges can set reasonable time limits and have discretion over what can be said aloud in open court (Dukette v. Brazas, 2014).

Rule 31 Annulment. Changes to the annulment petition process were initiated through the normal rule-change procedure but coincided with the release of the new rules.

During the public comment period leading up to the adoption of the NH Rules of Criminal Procedure, State Rep. Claire Rouillard, an attorney and member of the House Judiciary Committee, proposed establishing automatic disclosure of discovery to pro se defendants in criminal cases. Because it was deemed a substantive change to the rules, the rules committee is considering the proposal through the normal rule-change review process.

The Advisory Committee on Rules is scheduled to meet again at 12:30 p.m. Friday, March 11, at the NH Supreme Court. The agenda for the meeting will be posted on the court’s website earlier that week.

Supreme Court Rule 42(9) requires all NH admitted attorneys to notify the Bar Association of any address change, home or office.

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