The Criminal Process in New Hampshire
October 18th, 2019
Contributor: James B. Reis
In New Hampshire, most offenses are grouped into broad categories that are distinguished by the maximum penalty that may be imposed upon conviction. Violations, which are non-criminal in nature, are punishable by up to a $1000.00 fine. Ordinary speeding tickets, parking tickets, and failing to stop at a red light are all examples of violation-level offenses. Class B misdemeanors are considered crimes, but are only punishable by up to a $1200.00 fine. Class A misdemeanors carry the possibility of up to one year in jail and a $2000.00 fine. Class B felonies are punishable by up to 3 ½ to 7 years in prison and a $4000.00 fine, and class A felonies are punishable by up to 7 ½ to 15 years in prison.
There are a handful of offenses that do not fit squarely into any of these categories, and they are commonly referred to as special felonies. Examples of special felonies are murder, rape (or as it is referred to in New Hampshire, aggravated felonious sexual assault), and many drug offenses. A select number of offenses carry minimum mandatory penalties that, upon conviction for such offense, the judge must impose. Perhaps one of the most common types of offense that carries a minimum mandatory penalty is DWI.
Criminal Courts in New Hampshire
There are three levels of courts in New Hampshire: Circuit Court, Superior Court, and the Supreme Court. The Circuit Court is further divided into “divisions,” two of which are important here. The District Division is where most violations, class B misdemeanors, and class A misdemeanors are brought. The Family Division is where juvenile delinquency petitions are brought.
Felonies are brought in the Superior Court. In addition, if a class A misdemeanor is brought in the District Division and it results in a conviction, that case may be appealed to the Superior Court for a trial de novo (a new trial). It is not uncommon for misdemeanor and violation-level charges to be brought in the Superior Court if they arise in the context in which a felony is also charged. Additionally, in rare circumstances misdemeanor charges may be brought in the Superior court in the first instance.
Unlike many states, New Hampshire does not have an intermediate court of appeals. Convictions, no matter the level of offense, may be appealed to the New Hampshire Supreme Court. These are generally classified as “mandatory appeals.” Other types of appeals that do not arise from a final judgment of a trial court are generally classified as “discretionary appeals.” Interlocutory appeals, interlocutory transfers, and petitions for writs of habeas corpus are examples of discretionary appeals. In the case of a discretionary appeal, the Supreme Court may decide, in its own discretion, whether or not to accept the case for appellate review.
Criminal Cases in the New Hampshire District Division
Violation and misdemeanor charges are generally brought by way of a “complaint.” A complaint is simply a document that sets forth the allegation that the government has made. Among other things, it identifies the person charged, the location where the government believes the offense took place, and the date and time that the government believes the offense occurred.
Arraignment and Bail
The first appearance in the District Division is called an arraignment. This is when the person charged is formally apprised of the charge or charges that have been brought. It is at this juncture where many defendants (those who are charged with an offense) enter a not guilty plea.
At the arraignment, the court may also set bail, which can take one of several forms. Personal recognizance, or “PR” bail, means that the court releases the person into the community upon his or her promise to remain of good behavior, appear as directed at future hearings, and comply with any other conditions of release that the court decides to set. Bail can also take the form of corporate surety that can be posted by a licensed bail bond company, some amount of cash that must be posted prior to release, or at preventative detention (which results in the person being detained until trial).
Upon a plea of not guilty at arraignment, some courts will simply calendar a trial date. Others may schedule an interim hearing called a trial management conference, or “TMC.”
Criminal Trials in the District Division
Trials in the District Division are before a single judge, who acts as both as factfinder and arbiter of legal issues. If the government fails to meet its burden of proving guilt beyond a reasonable doubt at trial, the judge will enter a not guilty finding and the matter is concluded. On the other hand, if the judge believes that government has proven its case beyond a reasonable doubt, the judge will enter a guilty finding. In cases that result in a guilty verdict, it is common in the District Division to proceed directly to sentencing by the judge.
Appealing a New Hampshire District Division Decision
If a conviction in the district court is on a charge that was initially brought as a class A misdemeanor, a person has two options if he or she disagrees with the outcome. First, the case may be appealed to the Superior Court for a trial de novo before a jury. Second, the matter may be appealed directly to the New Hampshire Supreme Court. Convictions for violations and class B misdemeanors may only be appealed to the New Hampshire Supreme Court.
Juvenile Delinquency Cases in the New Hampshire Family Division
The process is similar for juveniles in the Family Division, although the lexicon is different and the timeline is abbreviated. For starters, juveniles are referred to as just that – juveniles – and not defendants. Instead of a “complaint,” juveniles are charged by way of a “petition.” The factfinding hearing is called an “adjudicatory hearing” instead of a trial. After the adjudicatory hearing, the court can find the juvenile “true” or “not true” (as opposed to guilty or not guilty). If a juvenile is found true, the court has thereby determined the juvenile to be “delinquent.” Upon a finding of delinquency, the court will schedule a “dispositional hearing” (for an adult, this would be a sentencing hearing).
Juvenile cases proceed very quickly. For juveniles who are detained, the adjudicatory hearing is to be held within 21 days of the arraignment; for juveniles who are not detained, the adjudicatory hearing is to be held within 30 days of the arraignment. These time periods may be extended for a period not to exceed 14 days if good cause is shown. If there is a finding of delinquency, the court must hold a dispositional hearing within 21 days of the adjudicatory hearing if the juvenile is detained and within 30 days of the adjudicatory hearing if the juvenile is released.
Appealing a New Hampshire Family Division Decision
Juvenile cases may thereafter be appealed to the New Hampshire Supreme Court.
Criminal Cases in the New Hampshire Superior Courts
In Superior Court, although felonies may be brought by complaint in the early stage of a case, should the government wish to proceed to trial on the matter, it must first present the case to a grand jury. If the grand jury determines that there is probable cause to believe that a crime has been committed, it will issue what is called an indictment. An indictment is a formal document that alleges that a person has committed a particular crime.
Arraignment and Bail
As in the case of misdemeanors brought in the District Division, the first appearance in Superior Court is called the arraignment. And as in the District Division, the Superior Court is empowered to set bail, which can range, as indicated above, from personal recognizance to preventative detention.
Hearings and Discovery
The court will next set an interim hearing, sometimes called a dispositional hearing. At the dispositional hearing, the court will inquire as to the status of negotiations between the parties, whether the government has turned over certain information (called “discovery”) to the accused person, and whether there are any issues that will likely be litigated prior to trial. If the case is likely to go to trial, the court will attempt to schedule the matter such that the parties have sufficient time to prepare their respective cases.
Criminal Trials in the Superior Court
Trials in the Superior Court are normally before a jury of twelve citizens drawn from the county in which the case arose. The process of selecting such a jury is called voir dire. Once empaneled, the jury will hear the case from beginning to end, adjourn to deliberate amongst themselves, and then return to the courtroom to render its verdict.
If the government fails to meet its burden of proving guilt beyond a reasonable doubt at trial, the jury will render a not guilty verdict and the matter is concluded. On the other hand, if the jury believes that government has proven its case beyond a reasonable doubt, the jury will enter a guilty verdict. In cases that result in a guilty verdict, it is common for the Superior Court to schedule a sentencing hearing in about 60 days.
Appealing a New Hampshire Superior Court Decision
A person who is dissatisfied with the outcome of his or her case may thereafter appeal the matter to the New Hampshire Supreme Court.
Should legal issues exist in any case that calls for pretrial litigation, the court will set deadlines for motions to be filed by each party. A motion is simply a request that is made to a court. Motions may be filed for many reasons. For example, a motion to suppress might be filed to request that the court exclude certain evidence because the police violated a constitutional provision in some way. A motion in limine generally seeks to admit or exclude information at trial based upon a particular rule of evidence. A motion for a bill of particulars seeks greater clarification in the charging document. The possibilities are many, and frequently a case may hinge on the outcome of a particular motion.
Criminal Cases in the New Hampshire Supreme Court
Mandatory appeals in the New Hampshire Supreme Court generally begin with the filing of a Notice of Appeal within thirty days of the date that the sentence is pronounced. Other appeals from a decision on the merits must be filed within thirty days from the date on the clerk’s written notice of decision. Interlocutory appeals do not have such strict deadlines, although the Supreme Court will exercise its discretion as to whether or not to accept such appeal.
Upon the filing of a case in the Supreme Court, the clerk of court will issue a scheduling order, setting forth when the record, the opening brief, the opposing brief, and the appendices must be filed.
Then, the court decides whether to hear the case before the full court (comprised of all five judges), before a three judge panel (referred to as a 3JX panel), or to forego oral argument altogether and simply decide the case based upon the written materials provided to the court.
James Reis is a Portsmouth, New Hampshire criminal defense attorney and former New Hampshire Public Defender.