Rule 4 - Initial Proceedings in Circuit Court-District Division(a)Filing of Complaint.(1) If the defendant is not detained prior to arraignment, the complaint shall be filed no later than fourteen (14) days prior to the date of arraignment. If a statute or an administrative order requires specific scheduling timeframes for the arraignment, the complaint shall be filed as soon as possible prior to the arraignment.(2) If the defendant is detained pending arraignment, the complaint shall be filed prior to commencement of the arraignment.(3) In all cases where the defendant may enter a plea by mail and a summons has been issued to the defendant and in which the defendant has entered a plea of "not guilty" with the Division of Motor Vehicles, if the Division of Motor Vehicles has not received the complaint directly from the police agency and has forwarded the defendant's "not guilty" plea to the designated court, the complaint must be filed with the court not later than fifteen days from the date of the court's written notice to the law enforcement agency directing that the complaint be filed. Any complaint filed with the court after the filing date has passed shall be summarily dismissed by the court unless good cause is shown.(4) In all cases alleging, as a violation level offense, a violation of RSA 318-B:2-c, II, III or IV where the defendant may enter a plea by mail directly with the court, if the defendant has entered a plea of "not guilty" or if the defendant has entered a plea of "guilty" or "no contest," the complaint must be filed with the court not later than fifteen days from the date of the court's written notice to the law enforcement agency directing that the complaint be filed. Any complaint filed with the court after the filing date has passed shall be summarily dismissed by the court unless good cause is shown.(b)Initial Appearance. (1) If the defendant is not detained prior to arraignment, the defendant's arraignment shall be scheduled no earlier than thirty-five (35) days from the time of the defendant's release with a written summons or by the bail commissioner, unless otherwise required by law, by administrative order or requested by a party. The circuit court shall use its best efforts to schedule a single arraignment day each week for defendants who are not incarcerated.(2) If the defendant is detained pending arraignment, the defendant's arraignment shall be scheduled within 24 hours, excluding weekends and holidays unless the person was arrested between 8:00 a.m. and 1:00 p.m. and the person's attorney is not available in which case the arraignment shall take place within 36 hours of arrest, excluding weekends and holidays.(c)Waiver of Arraignment. (1) A defendant charged with a class A misdemeanor or a felony may waive arraignment only if the defendant is represented by counsel and files with the court prior to the date of arraignment a written waiver signed by the defendant and the defendant's counsel. If not signed by the defendant, counsel for the defendant may certify the following: (A) That the charges and potential penalties have been discussed with the defendant;(B) That the personal information of the defendant is accurate;(C) That the defendant has been advised and understands that existing bail orders remain in effect pending disposition of the case or modification by the court;(D) That the defendant understands that he or she is entitled to an arraignment conducted by the court but is waiving that arraignment;(E) That the defendant has been advised and understands his or her privilege against self-incrimination;(F) That the defendant has been advised and understands his or her right to retain counsel and the right to have an attorney appointed by the court pursuant to Rule 5 if the defendant is unable to afford an attorney; and(G) For felony level charges only: That the defendant has been advised and understands his or her right to a probable cause hearing that will be conducted pursuant to Rule 6.(2) A defendant charged with a class B misdemeanor or violation for which an appearance is mandated may waive arraignment if the defendant files with the court prior to the date of arraignment a written waiver signed by the defendant.(d) In cases where the defendant is not detained, arraignment may be continued without the personal appearance of the defendant or the entry of an appearance by counsel upon timely motion made in writing if the court is satisfied with the terms of bail. However, absent an appearance by counsel on behalf of the defendant, no case in which a defendant is charged with a class A misdemeanor or felony shall be continued for arraignment to a date less than thirty (30) days before trial.(e)Gerstein Determination. If the defendant was arrested without a warrant and is held in custody, or if the defendant was arrested pursuant to a warrant that was not issued by a judge and is held in custody, the court shall require the State to demonstrate probable cause for arrest. This determination may be made at the circuit court-district division arraignment, but in any event, must be made within forty-eight hours of the defendant's arrest, excluding weekends and holidays. (1) The State may present proof by way of sworn affidavit or by oral testimony. Oral testimony, if submitted, shall be under oath and recorded.(2) The defendant does not have the right to be present, present evidence or cross-examine witnesses. The proceeding shall be non-adversarial.(3) The court shall make a written finding on the issue of probable cause. The finding and the affidavit shall become part of the public record, shall be available to the defendant and must be filed with the appropriate court on the next business day.(4) If a motion to seal the affidavit has been filed with the request for a Gerstein determination, the court shall rule on the motion to seal when ruling on the issue of probable cause.(f)Copy of Complaint. No later than at the time of the first appearance in court, the defendant shall be provided with a copy of the complaint.(g)Arraignments on Misdemeanors and Violations. The following procedures apply to arraignments on misdemeanors and violations.(1) Any misdemeanor complaint filed with the court without specification of the classification shall be presumed to be a class B misdemeanor unless specified by law or unless the State files a notice of intent to seek class A misdemeanor penalties form before or at the time of arraignment.(2) The court shall inform the defendant of the nature of the charges, the possible penalties, the privilege against self-incrimination, and the right to retain counsel. In felony and class A misdemeanor cases, the court shall inform the defendant of the right to have an attorney appointed by the court pursuant to Rule 5 if the defendant is unable to afford an attorney. (A) For cases with a felony charge(s), the court shall enter a no plea on the felony charge(s) and the felony charge(s) shall be scheduled for a probable cause hearing.(B) For cases without a felony charge(s) the defendant shall be asked to enter a plea of guilty, not guilty, or, with the consent of the court, nolo contendere. If a defendant refuses to plead or if a court refuses to accept a plea of guilty or nolo contendere, the court shall enter a plea of not guilty. Upon entry of a plea of not guilty, the case shall be scheduled for trial.(h) The court may issue a bench warrant for the arrest of any defendant who, after receiving notice of the hearing date, fails to appear on the designated date for the defendant's appearance, or who fails to answer by waiver or who fails to comply with any order of the court.Adopted effective 1/1/2016 in Strafford and Cheshire counties and 7/1/2016 in Belknap County; amended November 30, 2017, effective 12/1/2017; amended effective 1/1/2020; amended effective 1/1/2024.Comment
Rule 4(e) provides for a detention hearing to satisfy the Fourth Amendment requirements as set forth in County of Riverside v. McLaughlin, 111 S. Ct. 1661 (1991), and Gerstein v. Pugh, 420 U.S. 103 (1975).