The Superior Court system in New Hampshire has been several years in implementing a Felonies First criminal program. This space has written about the proposed change in the past. It has finally come into being. Essentially, the program does away with the probable cause hearing process and sends felonies to the Superior Court for first contact with the court system. The theory is that the time spent in the District Court with arraignments, bail hearings and probable cause hearings is wasted time. It is more efficient, the reasoning goes, to head felonies directly to the Superior Court.
The program has been in place for several months and has met with mixed success. There has been a period of adjustment where the county prosecutor’s office has had to respond to requests for discovery and evaluate the case. The true advantages and disadvantages of the system have been exposed. The only advantages are that the process moves much more quickly. In those cases that are very simple and the outcome is easily agreed upon, this saves time. In all other cases there are problems that will take some time to resolve.
Felony cases are serious matters with serious consequences. The minimum exposure for someone charged with a felony is 3½ to 7 years in the New Hampshire State Prison plus a fine. That is no small matter. In the former system, these cases would be discussed between the local police prosecutors and defense counsel. They have an opportunity to see if the matter might be resolved as a misdemeanor or even a violation. Decisions made by the police on the street with respect to charging is often done without any opportunity to reflect and think the decision all the way through. The process of having an arraignment and bail hearing before probable cause hearing 30 days later gave the State a chance to see what the facts of the case really were and what the proper charging decision should be. That opportunity for a non-superior court resolution to the case has now been taken away. Instead, that period of reflection and communication with the arresting police department must take place after there has already been an arraignment in the Superior Court.
The Grand Jury process and its relative the probable cause hearing have been pretty much dispensed with. While both procedures had a cost, they also gave defendants an extra measure of due process that would allow abuses of state discretion and “close calls” to be weeded out. There were often times cases that probably would not have survived the reasonable doubt standard were stopped in the Grand Jury or probable cause system because the facts to support of probable cause was questionable.
Time will likely cause the system to adjust to the new way of doing things so that the delay for reconsidering the form of the charge and how it fits the facts to be attended to Superior Court. The transition period will take some time. It is hoped that those compromises of the rights of the accused will be corrected as well. If not, this attempt at judicial economy will result in far more problems than it solves.
By: Kent Barker
Attorney Kent M. Barker practices Personal Injury, Family & Divorce, and Criminal Law at Winer & Bennett, LLP. To learn more about the Felonies First Program or receive expert legal counsel from Kent, call 603-882-5157. Visit our website at www.winerbennett.com.