(a)Circuit Court-District Division. In addition to the notice requirements in (c), affirmative defenses must be raised by written notice at least five days in advance of trial. (b)Superior Court. In addition to the notice requirements in (c), the following notice requirements apply in superior court. The State's Notice Obligations
(A) Extended Term Sentences. Notice that an extended term of imprisonment may apply pursuant to RSA 651:6 shall be provided to the defendant in writing at least twenty-one days prior to the commencement of jury selection. (B)Alibi. The State may have further notice obligations under Rule 14(b)(2)(C) regarding alibi witnesses. (2)The Defendant's Notice Obligations (A)General Notice Obligations. If the defendant intends to rely upon any defense specified in the Criminal Code, the defendant shall within sixty calendar days if the case originated in superior court, or thirty calendar days if the case originated in circuit court-district division, after the entry of a plea of not guilty, or within such further time as the court may order for good cause shown, file a notice of such intention setting forth the grounds therefor with the court and the prosecution. If the defendant fails to comply with this rule, the court may exclude any testimony relating to such defense or make such other order as the interest of justice requires. (B)Prior Sexual Activity of Victim. Not less than forty-five days prior to the scheduled trial date, any defendant who intends to offer evidence of specific prior sexual activity of the victim with a person other than the defendant shall file a motion setting forth with specificity the reasons that due process requires the introduction of such evidence and that the probative value thereof to the defendant outweighs the prejudicial effect on the victim. If the defendant fails to file such motion, the defendant shall be precluded from relying on such evidence, except for good cause shown. (C) Alibi. If a defendant intends to rely upon the defense of alibi, notice shall be provided to the State in writing of such intention within sixty calendar days if the case originated in superior court, or thirty calendar days if the case originated in circuit court-district division of the plea of not guilty and a copy of such notice shall be filed with the clerk. The notice of alibi shall be signed by the defendant and shall state the specific place where the defendant claims to have been at the time of the alleged offense, and the names and addresses of the witnesses upon whom the defendant intends to rely to establish such alibi. Within ten days after the receipt of such notice of alibi from the defendant, the prosecution shall furnish the defendant, or counsel, in writing with a list of the names and addresses of the witnesses upon whom the prosecution intends to rely to establish the defendant's presence at the scene of the alleged offense. If prior to or during trial, a party learns of an additional witness whose identity, if known, should have been included in the information required by this rule, the party shall forthwith notify the other party, or counsel, of the existence and identity and address of such additional witness. Upon the failure of either party to comply with the requirements of this rule, the court may exclude the testimony of any undisclosed witness offered by such party regarding the defendant's absence from, or presence at, the scene of the alleged offense. This rule shall not limit the right of the defendant to testify concerning the alibi notwithstanding the failure to give notice. The court may waive the requirements of this rule for good cause shown. (3)Notice of Use of Criminal Record During Trial. If a party plans to use or refer to any prior criminal record during trial, for the purpose of attacking or affecting the credibility of a party or witness, the party shall first furnish a copy of the same to the opposing party, or to counsel, and then obtain a ruling from the court as to whether the opposing party or a witness may be questioned with regard to any conviction for credibility purposes. Evidence of a conviction under this rule will not be admissible unless there is introduced a certified record of the judgment of conviction indicating that the party or witness was represented by counsel at the time of the conviction unless counsel was waived. (c)Special Notice Requirements. The following notice requirements apply in all criminal proceedings in either circuit court-district division or superior court. (1) In any case in which a road or way is alleged to be a "way," as defined in RSA 259:125, or a public highway, a party shall notify the opposing party or counsel at least ten days prior to trial if said "way" or public highway must be formally proved; otherwise, the need to formally prove said "way" or public highway will be deemed to be waived. (2) Whenever a party intends to proffer in a criminal proceeding a certificate executed pursuant to RSA 318-B:26-a(II), notice of an intent to proffer that certificate and all reports relating to the analysis in question, including a copy of the certificate, shall be conveyed to the opposing party or parties at least twenty-five days before the proceeding begins. An opposing party who intends to object to the admission into evidence of a certificate shall give notice of objection within ten days upon receiving the adversary's notice of intent to proffer the certificate. A failure to comply with the time limitations regarding the notice of objection required by this section shall constitute a waiver of any objection to the admission of the certificate. The time limitations set forth in this section shall not be relaxed except upon a showing of good cause. (3) If counsel or the State has a bona fide question about the competency of a defendant to stand trial, counsel or the State shall notify the court. In addition, the court for good cause may raise the issue on its own. When such a bona fide question arises, the court shall proceed in accordance with RSA 135:17, RSA 135:17-a, and any other applicable statutes. Adopted effective 1/1/2016 in Strafford and Cheshire counties and 7/1/2016 in Belknap County; amended February 26, 2021, effective 2/26/2021.Comment
Rule 14(b)(1)(A), requiring the state to provide notice that it may seek an extended term of imprisonment under RSA 651:6, derives from current Superior Court Rule 99 -A and RSA 651:6(III). An extended term may be imposed upon a defendant if notice is lawfully provided and the court or jury finds that the prerequisites have been met. See Apprendi v. New Jersey, 530 U.S. 466 (2000); State v. Russell, 159 N.H. 475 (2009). Rule 14(b)(1)(A) reflects the developments in this area of the law. Rule 14(b)(1)(A) provides that in every case in which a prosecutor may seek the imposition of an extended term of imprisonment pursuant to RSA 651:6, the prosecutor must give notice to the defendant prior to the commencement of the trial. In any case in which there exists the possibility that the court may sua sponte impose an extended term, notice must be given by the trial judge prior to the commencement of the trial. State v. Toto, 123 N.H. 619 (1983).