More Rule Changes: Criminal Procedure

In the last five years New Hampshire Courts have made sweeping changes to the Civil, Family Law and recently Criminal Law procedural rules.  Effective December 16, 2013 significant changes were made to the rules governing criminal procedure throughout the superior courts in the state.  Just as we are all creatures of habit and routine, the individual courts too will take time to adjust to the transition.  In other words, the rules have changed but not everyone will follow them.  The fact is, few practitioners have the luxury of familiarizing themselves with all of the rules on a given day.  The courts are painfully aware of that.  The Bar Association has been doing its part to spread the word and encourage lawyers to review them.

The question that one must ask is whether or not the changes will promote better practice in the state.  The system being applied now seems to work just fine.  That is not to say that it works fine in every court in the state.  The rule changes seem to be motivated primarily by an effort to promote consistency throughout all of the state’s counties and to make the administration, and therefore the practice of criminal law, uniform.

Some practitioners also hold the opinion that there are more inefficiencies in the larger counties of the state when it comes to criminal procedure.  There is no question that the criminal docket dominates the court’s time in the larger counties due criminal defendant’s constitutional protections.  This is simply a cost of justice in a country with a constitution that values individual freedom.

Two specific rule changes point to the court’s intent to speed the processing of cases.  First, the deadline for notifying opposing counsel of the intention to use an expert witness.  In theory, the rule attempts to minimize the inefficiencies of late disclosure, such as the need to continue a case that would otherwise be ready for trial.  This does not always square with the practitioner’s experience of criminal practice in New Hampshire.  Cases often must be thoroughly investigated and prepared before the necessity of an expert becomes obvious.  The outcome of evidentiary rulings can also have a major impact on the decision to use an expert.  For example, if a motion to suppress medical evidence is granted, there is no longer a need for a medical expert.  If it is not granted, the necessity of an expert only becomes known at the moment the order is received.  Thankfully, the court is often sensitive to this development and does not hold counsel to a strict adherence to the expert disclosure deadline.

A second change that seems to be promote expediency above all else is the deadline for the State to provide discovery and make an offer on the case.  Prosecutors need to understand the case before making a realistic offer.  This often takes more time than anticipated.  Between communicating with busy investigating officers and juggling their enormous workload, many prosecutors cannot make a realistic offer for some time; often until the structuring conference is about to take place.  The new rule requires that an offer be made very soon after the indictment has been handed down.  The likely result is that offers made at this stage of the proceeding will be unrealistic.  The risk is that defense counsel and the defendant will be outraged or insulted by the initial offer, casting a chilling effect on future negotiations and diminishing the likelihood of out-of-court agreements.  It would seem that such an unnecessary and potentially harmful deadline should be avoided.

Though made with good intentions, the court’s changes to the criminal rules will always need to be catered to the eccentricities of each county.  It is hoped that the court will be enforce these rules with a mindset toward promoting justice and fair treatment rather than strict adherence above all.

By: Kent Barker, Esq.

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