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Rule 41 – Immunity

May 14, 2021 | Criminal Procedure, New Hampshire

(a) Whenever a witness refuses, on the basis of the privilege against self-incrimination, to testify or provide information in a proceeding before, or ancillary to, a Circuit Court-District Division or Superior Court or a Grand Jury, a prosecutor may, with the prior written approval of the Attorney General or County Attorney for the jurisdiction where offenses are alleged to have occurred, request an order from the court requiring such individual to give testimony or provide other information that the individual refuses to give or provide on the basis of the privilege against self-incrimination, when in the judgment of the Attorney General or County Attorney:

(1) The testimony or other information from such individual may be necessary to the public interest; and
(2) Such individual has refused or is likely to refuse to testify or provide other information on the basis of the privilege against self-incrimination.
(b) Whenever the court communicates on the record to the witness an order issued under paragraph (a), the witness may not refuse to comply with the order on the basis of the privilege against self-incrimination. No testimony or other information compelled under the order, or any information directly or indirectly derived from such testimony or other information, may be used against the witness in any criminal case or forfeiture. However, the witness may be prosecuted or subject to penalty or forfeiture for any perjury, false swearing, or contempt committed in answering or failing to answer, or in producing or failing to produce evidence in accordance with the order.

N.H. R. Crim. P. 41

Adopted effective January 1, 2016 in Strafford and Cheshire counties and July 1, 2016 in Belknap County.

Comment

Rule 41 is based on RSA 516:34, which allows a prosecutor to request an order of immunity. The court cannot grant use immunity sua sponte under the immunity statute. The power to grant immunity lies solely with the State. State v. Flood, 159 N.H. 353 (2009).