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Rule 6 – Probable Cause Hearing

May 14, 2021 | Criminal Procedure, New Hampshire

(a) Circuit Court-District Division Probable Cause Hearing

(1)Jurisdiction. A probable cause hearing shall be scheduled in accordance with this rule in any case which is beyond the trial jurisdiction of the circuit court-district division and in which the defendant has not been indicted.
(2)Scheduling. The court shall hold a probable cause hearing within ten days following the arraignment if the defendant is in custody. The court shall hold the hearing within twenty days of the arraignment if the defendant is not in custody. The probable cause hearing shall not be held if the defendant is notified before the hearing of an indictment on the charge that would have been the subject of the hearing or if the clerk of the Circuit Court receives reliable information that the defendant has been indicted on the charge which would have been the subject of the hearing. A probable cause hearing may be adjourned for reasonable cause.
(3)Notice to Defendant. The court shall inform the defendant of the complaint, the right to counsel, and the right to a probable cause hearing. The court shall also tell the defendant that there is no obligation to make a statement and that any statement may be used against the defendant.
(4)Evidence. The Rules of Evidence shall not apply at the hearing. The defendant may cross-examine adverse witnesses, testify and introduce evidence. If the defendant elects to be examined, the defendant shall be sworn, but it shall always be a sufficient answer that the defendant declines to answer the question; and if at any time the defendant declines to answer further, the examination shall cease. The parties may request sequestration of the witnesses.
(5)Finding of Probable Cause. If the court determines that there is probable cause to believe that a charged offense has been committed and the defendant committed it, the court shall hold the defendant to answer in superior court.
(6)Finding of No Probable Cause. If the court determines that there is no probable cause to believe that a charged offense has been committed or that the defendant committed it, the court shall dismiss the complaint and discharge the defendant. The discharge of the defendant shall not preclude the State from instituting a subsequent prosecution for the same offense or another offense.
(7)Waiver. A defendant may waive the right to a probable cause hearing. The waiver shall be in writing.
(8) Upon indictment or finding of probable cause, the complaint shall be so marked, and the clerk of the Circuit Court shall thereafter send to the clerk of the Superior Court any bail or bond pertaining thereto, along with a copy of such complaint where possible.
(b) Superior Court

(1) A defendant may challenge probable cause during the period from arrest to indictment by motion requesting a probable cause hearing under the following conditions:

(A) A complaint has been filed in superior court;
(B) The defendant has not been indicted by the grand jury; and
(C) The defendant asserts a claim that a material element of the charge is without factual basis or that the charge is legally insufficient to constitute a felony offense.
(2) Upon review of the motion, the court shall determine whether a hearing is necessary to assist the court in its determination of probable cause. A request for a hearing shall not be unreasonably denied. If a hearing is scheduled, it shall be held as soon as the court docket permits, but in any event within 10 days of filing of the motion if the defendant is incarcerated and within 20 days of the filing of the motion if the defendant is not incarcerated.
(3) A probable cause hearing shall be scheduled:

(A) If an arrest is supported by an affidavit or statement filed under oath that was filed under seal, and the affidavit remains under seal at the time of the request for a probable cause hearing, or
(B) If a court determines discovery should not be provided in accordance with the timelines set forth in RSA 592-B:6, II and the defendant has not been indicted.
(4) If a hearing is held, the state shall bear the burden of proving there is probable cause to believe that a felony has been committed and that the person charged has committed it. At the hearing, the accused may cross-examine witnesses and present evidence.
(5) Finding of Probable Cause. If the court determines that there is probable cause to believe that a charged offense has been committed and the defendant committed it, the court shall hold the defendant to answer for action by the grand jury.
(6) Finding of No Probable Cause. If the court determines that there is no probable cause to believe that a charged offense has been committed or that the defendant committed it, the court shall dismiss the complaint and discharge the defendant. The discharge of the defendant shall not preclude the state from instituting a subsequent prosecution for the same offense or another offense.

N.H. R. Crim. P. 6

Adopted effective January 1, 2016 in Strafford and Cheshire counties and July 1, 2016 in Belknap County; amended July 18, 2019, effective August 6, 2019 in Rockingham County.

Comment

A preliminary examination allows a defendant to challenge the decision of the prosecuting authorities to limit the defendant’s liberty pending consideration of the matter by a grand jury. State v. Arnault, 114 N.H. 216 (1974); Jewett v. Siegmund, 110 N.H. 203 (1970). The preliminary examination is not a trial on guilt or innocence. It is merely an examination to determine if the State can establish that there is enough evidence to proceed to trial. In essence, it is a hearing to determine whether probable cause exists. See State ex rel McLetchie v. Laconia Dist. Court, 106 N.H. 48 (1964).

Courts and parties should note that RSA 596-A:3 requires the court to caution a defendant about the right to counsel and the right to remain silent.