PROCEEDINGS IN CRIMINAL CASES
ADEQUATE REPRESENTATION FOR INDIGENT DEFENDANTS IN CRIMINAL CASES
604-A:1 Representation of Defendants.
The purpose of this chapter is to provide adequate representation for indigent defendants in criminal cases, as a precondition of imprisonment, and indigent juveniles charged with being delinquent in any court of this state. Representation of juveniles shall include all court ordered representation and shall be paid from funds appropriated for indigent defense pursuant to this chapter. Representation shall include counsel and investigative, expert and other services and expenses, including process to compel the attendance of witnesses, as may be necessary for an adequate defense before the courts of this state.
Source. 1965, 296:1. 1967, 422:1. 1973, 370:22. 1981, 568:20, I, eff. July 1, 1981. 2009, 144:182, eff. July 1, 2009.
604-A:1-a Neglected or Abused Children.
In cases involving a neglected or abused child, when a guardian ad litem is appointed for the child as provided in RSA 169-C:10, the cost of such appointment shall be paid from funds appropriated for indigent defense pursuant to this chapter. In cases involving a neglected or abused child, when an expressed interest attorney is appointed for the child as provided in RSA 169-C:10, the cost of such appointment shall be paid from funds appropriated for indigent defense in this chapter. In cases involving a neglected or abused child, when an attorney is appointed to represent a parent determined to be indigent pursuant to RSA 169-C:10, II, at the preliminary hearing or a hearing pursuant to RSA 169-C:6-a, III, whichever occurs earlier, the cost of such appointment, including counsel and investigative, expert, or other services and expenses, shall be paid from funds appropriated for indigent defense pursuant to this chapter. Counsel shall petition the court for investigative, expert, or other services necessary to provide adequate representation. If the court finds that such services are necessary and that the parent is financially unable to obtain them, the court shall authorize counsel to obtain the necessary services on behalf of the parent. Services authorized under this section shall be in addition to payment for expenses provided under RSA 169-C or RSA 170-C.
Source. 1973, 522:1. 1996, 248:9, eff. July 1, 1996. 2008, 296:24, eff. June 27, 2008. 2009, 144:183, eff. July 1, 2009. 2011, 224:74, eff. July 1, 2011. 2013, 144:58, eff. July 1, 2013. 2021, 207:2, Pt. V, Sec. 3, eff. Oct. 9, 2021.
604-A:1-b Additional Funding.
In the event that expenditures for indigent defense by the judicial council are greater than amounts appropriated in the operating budget, the judicial council may request, with prior approval of the fiscal committee of the general court, that the governor and council authorize additional funding. For funds requested and approved, the governor is authorized to draw a warrant from any money in the treasury not otherwise appropriated.
Source. 2008, 296:25, eff. June 27, 2008.
604-A:1-c Additional Funding From State Departments and Agencies.
I. Every state department, board, institution, commission, or agency which receives general fund grants or supplemental appropriations outside of the state biennial operating budget for the purpose of conducting law enforcement activities that may result in increased costs for indigent defense as determined by the court, shall transfer 5 percent of such funds received to the judicial council to be used to pay for indigent defense costs resulting from such law enforcement activities. Payment for expenses of indigent representation under this section shall be made pursuant to RSA 604-A:8.
II. The department of safety shall transfer 5 percent of any additional funds appropriated for the substance abuse enforcement program established in RSA 21-P:66 to the judicial council to be used to pay for indigent defense costs resulting from such law enforcement activities. Payment for expenses of indigent representation under this section shall be made pursuant to RSA 604-A:8.
Source. 2017, 156:222, eff. July 1, 2017. 2021, 91:383, eff. July 1, 2021.
604-A:2 Appointment of Counsel.
I. In every criminal case in which the defendant is charged with a felony or a class A misdemeanor and appears without counsel, the court before which he or she appears shall advise the defendant that he or she has a right to be represented by counsel and that counsel will be appointed to represent him or her if he or she is financially unable to obtain counsel. Unless the defendant waives the appointment of counsel, if the defendant indicates to the court that he or she is financially unable to obtain counsel, the court shall instruct the defendant to complete a financial statement under oath in such form as designated by the unit of cost containment. If after review of the financial statement under oath and application of the rules established pursuant to RSA 604-A:10, IV the court is satisfied that the defendant is financially unable to obtain counsel, the court shall appoint counsel to represent him or her; provided, however, that in any case in which the defendant is charged with a capital offense, the court may appoint 2 counsel to represent him or her. Whenever defendants have such conflicting interests that they cannot be properly represented by the same counsel, or when other good cause is shown, the court shall appoint separate counsel for each of them. In a post-conviction proceeding in which a defendant seeks to attack the validity of an underlying conviction, the court shall appoint counsel or approve a request for services other than counsel when the interests of justice or judicial economy require.
II. Whenever the court makes an appointment under paragraph I, the appointment shall be made as follows: first, appointment of the public defender program under RSA 604-B if that office is available; second, in the event the public defender program is not available, appointment of a contract attorney under RSA 604-A:2-b if such an attorney is available; and third, in the event that neither the public defender program nor a contract attorney is available, the appointment of any qualified attorney under paragraph I.
III. In the event that the defendant disagrees with the commissioner's decision on eligibility, the defendant shall have the right to appeal to the court having jurisdiction over the case within 7 days of notification of the commissioner's findings. An appeals hearing shall be held before the court in which the defendant will be tried and the burden of persuasion shall be upon the defendant to demonstrate why the determination procedures specified in the rules pursuant to RSA 604-A:10, IV, should not be controlling in the case. In any such hearing the court shall receive such evidence and argument as justice may require and shall enter an order setting forth its decision within 7 days of the filing of the appeal. In the event the court alters the commissioner's eligibility decision on appeal, its order shall contain specific findings outlining why the commissioner's decision was not sustained.
IV. (a) The court shall review any information available to it regarding the defendant's mental condition and shall require the state to disclose any information as to the defendant's mental condition. If the court has information indicating the defendant has a mental illness, the court shall act on any application for appointed counsel on the same day as the defendant's first court appearance. If the application is approved, the court shall, by phone, notify the attorney appointed to represent the defendant and immediately transmit all relevant court documents to the attorney by facsimile or other electronic transmission.
(b) The court shall appoint counsel without formal application if the defendant is without counsel and mental illness appears to be interfering with the defendant's ability to communicate, understand court proceedings, or to complete a formal application on a timely basis.
(c) If a public defender is appointed, the public defender, upon receiving notification that the defendant may have a mental illness, shall, on the day notice of the appointment is received, designate a specific attorney to represent the defendant.
Source. 1965, 296:1. 1973, 370:23. 1981, 568:20, II. 1985, 342:1. 1989, 345:3, 4. 1993, 190:19, eff. Jan. 1, 1994. 2010, 250:3, eff. Jan. 2, 2011. 2014, 188:2, eff. Jan. 1, 2015. 2015, 21:1, eff. May 5, 2015. 2019, 346:394, eff. July 1, 2019.
604-A:2-a Additional Inquiry.
Whenever a court appoints counsel pursuant to the provisions of RSA 604-A:2, the court shall conduct an appropriate inquiry as to whether any person who, pursuant to RSA 546-A:2, is liable for the support of the defendant is financially able to pay for such defendant's counsel. If the court determines that the person liable for support is financially able to pay for said counsel, in whole or in part, the court shall enter an appropriate order requiring said person to reimburse the state for the representation provided; provided, however, that a child shall not be required to reimburse the state for representation provided to his mother or father, a parent shall not be required to reimburse the state for representation provided to a child 18 years of age or older, and any person who was a victim of the crime with which the defendant has been charged shall not be required to reimburse the state for the representation provided. For the purposes of this section, the inquiry conducted by the court shall include notice and hearing to the person liable for support.
Source. 1981, 568:20, III. 1982, 42:41, eff. June 29, 1982.
604-A:2-b Contract Attorneys.
The state of New Hampshire, by the judicial council and with the approval of governor and council, may, within the limits of available appropriations, contract with any qualified attorney in the state to provide for the representation of indigents in circumstances where, pursuant to RSA 604-B, the public defender program is unavailable to provide such representation. No contract providing for the representation of children in proceedings arising under RSA 169-B shall be based on payment of a predetermined fee per case or other payment structure which creates a financial disincentive for attorneys to provide effective representation in such cases. The executive director of the judicial council shall authorize payments to contract attorneys provided for under this section.
Source. 1985, 342:2. 1987, 406:17. 1991, 46:1. 1997, 351:8, eff. July 1, 1997. 2021, 207:2, Pt. I, Sec. 4, eff. Jan. 1, 2022.
604-A:2-c Determination of Financial Ability.
The determination of a defendant's financial ability to obtain counsel shall be made by comparing the defendant's assets and incomes with the minimum cost of obtaining qualified private counsel. The defendant's assets shall include all real and personal property owned in any manner by the defendant, excluding only those assets which are exempt from attachment and execution under RSA 511:2. The defendant's income shall include all income, whether earned or not, from any source, unless exempt from attachment under any state or federal law, and shall be reduced only by the amount of expenses which are reasonably necessary for the maintenance of the defendant and his dependents. In determining a defendant's financial ability to obtain counsel, the rules adopted by the commissioner under RSA 604-A:10, IV, shall contain a method for considering the defendant's ability to borrow some or all of the necessary funds. The rules shall also consider the possibility of the defendant paying his counsel fees in periodic installments.
Source. 1985, 342:2. 1989, 345:5, eff. July 1, 1989.
604-A:2-d Partial Liability.
If the commissioner of administrative services determines, in accordance with the standards set forth in RSA 604-A:2-c, that a defendant is able to pay some, but not all of the expenses of obtaining private counsel, the court shall appoint counsel and shall require the defendant to pay a fixed contribution in accordance with rules adopted pursuant to RSA 604-A:10, IV. The defendant's full payment shall be made to the court prior to the conclusion of the proceedings, unless otherwise ordered by the court. The clerk of court shall remit such payments to the department of administrative services with the documentation required by the commissioner.
Source. 1985, 342:2. 1989, 345:6, eff. July 1, 1989.
604-A:2-e Counsel in Juvenile Delinquency Cases.
Courts assigning counsel in RSA 169-B proceedings shall do so in accordance with standards adopted by the judicial council.
Source. 2014, 215:25, eff. July 1, 2015.
604-A:2-f Appointment of Counsel for Nonpayment or Nonperformance.
I. No defendant shall be incarcerated after a final hearing for nonpayment of an assessment or nonperformance of community service unless counsel has been appointed for a defendant who is indigent or such defendant has executed a valid waiver of counsel for the final hearing. Incarceration of such defendant may occur only if the court, after having conducted an ability to pay or ability to perform final hearing at which the court has made a specific inquiry of the defendant concerning his or her financial circumstances and his or her reasons for nonpayment or nonperformance, finds that the defendant willfully failed to pay the assessment or perform the community service.
II. Prior to conducting an ability to pay or ability to perform final hearing, the court shall:
(a) Provide the defendant with a financial statement under oath and direct the defendant to complete the financial statement under oath;
(b) Inform the defendant that he or she may be immediately incarcerated if the court finds that he or she has willfully failed to comply with the court's prior order to pay an assessment or perform community service;
(c) Inform the defendant that he or she is entitled to counsel for the final hearing in which incarceration is a possible outcome and, if the defendant cannot afford one, the court will appoint one; and
(d) Explain the issues to be decided at the final hearing as well as the process provided.
III. The court shall appoint counsel to represent an indigent defendant at a final hearing on an ability to pay or perform held pursuant to this section if incarceration is a possible outcome of the final hearing.
IV. When the court appoints counsel to represent a defendant in a proceeding under this section, the court shall grant the defendant relief from the obligation to repay the state for appointed counsel fees under RSA 604-A:9, I(b), if the court determines that the defendant is financially unable to repay.
Source. 2017, 86:1, eff. Aug. 1, 2017. 2019, 346:265, eff. July 1, 2020; 346:395, eff. July 1, 2019.
604-A:3 Duration and Substitution of Appointments.
A defendant for whom counsel is appointed shall be represented by counsel from his initial appearance before the court at every stage of the proceedings until the entry of final judgment. If at any time after the appointment of counsel the defendant is financially able to obtain counsel or to make partial payment for representation, the court having jurisdiction of the case may terminate the appointment of counsel or direct the application of the funds available to the defendant to meet the expense of representation, as justice may require. If at any stage of the proceedings, the court having jurisdiction of the case finds that the defendant is financially unable to pay counsel whom he had retained, the court may appoint counsel to represent him, as justice may require. The court having jurisdiction of the case may, in the interest of justice, at any stage of the proceedings, substitute one appointed counsel for another.
Source. 1965, 296:1, eff. July 1, 1965.
604-A:4 Compensation of Counsel.
Subject to the provisions of RSA 604-A:6, counsel appointed pursuant to this chapter to represent the defendant, at the conclusion of the representation or any segment thereof, shall be reasonably compensated therefor and shall be reimbursed for expenses reasonably incurred. A separate claim for compensation and reimbursement shall be made to each court before which the counsel represented the defendant. Each claim shall be supported by a written statement specifying the time expended, services rendered and expenses incurred while the case was pending before the court. Each court before which the counsel represented the defendant shall fix the compensation and reimbursement to be paid the counsel for services rendered and expenses incurred while representing the defendant in proceedings before the court; however, no justice shall approve any unreasonable or unnecessary charge.
Source. 1965, 296:1. 1969, 364:1, eff. July 1, 1969.
604-A:5 Repealed by 2015, 114:5, eff. Aug. 7, 2015.
604-A:6 Services Other Than Counsel.
In any criminal case in which counsel has been appointed to represent a defendant who is financially unable to obtain investigative, expert or other services necessary to an adequate defense in his case, counsel may apply therefor to the court, and, upon finding that such services are necessary and that the defendant is financially unable to obtain them, the court shall authorize counsel to obtain the necessary services on behalf of the defendant. The court may, in the interests of justice and upon finding that timely procurement of necessary services could not await prior authorization, ratify and approve such services after they have been obtained. The court shall determine reasonable compensation for the services and direct payment upon the filing of a claim for compensation supported by an affidavit specifying the time expended, the nature of the services rendered, the expenses incurred on behalf of the defendant, and the compensation, if any, received in the same case for the same services from any other source. The compensation to be paid to any person or association for such services shall not exceed $300 unless the court determines that the nature or quantity of such services reasonably merits greater compensation. The $300 limit for compensation shall not include or apply to reimbursement for expenses reasonably incurred. In any case in which appointed counsel seeks funds for services other than counsel under this section, the application for such funds may be filed with the court on an ex parte basis and may, upon the request of appointed counsel, be sealed until the conclusion of the representation.
Source. 1965, 296:1. 1983, 321:1. 1989, 188:1, eff. Jan. 1, 1990. 2005, 135:1, eff. Jan. 1, 2006.
604-A:6-a Contract Services.
The state of New Hampshire, by the judicial council and with the approval of governor and council, may, within the limits of appropriations, contract with qualified firms or individuals in the state to provide stenographic and clerical services where, pursuant to RSA 604-A:6, the defendant has been found to be eligible for such services. The executive director of the judicial council shall authorize payments to such individuals and firms as provided for under this section.
Source. 1991, 46:2. 1997, 351:9, eff. July 1, 1997.
604-A:7 Rules and Regulations.
The supreme court, superior court, district court, and judicial branch family division shall each have the authority to establish such rules and regulations and prescribe such forms as may be deemed necessary or advisable for the performance of their respective duties hereunder.
Source. 1965, 296:1, eff. July 1, 1965. 2006, 267:2, eff. June 9, 2006.
604-A:8 Payment of Expenses.
I. Each claim and written statement in support thereof when approved by the court shall be forwarded to the judicial council for payment. The commissioner of administrative services may adopt rules, under RSA 541-A, in addition to the requirements of paragraph II, to carry out the provisions of this section.
II. Statements submitted by counsel for payments of fees shall in each case be examined by the trial and appellate judges and certified by them as to the reasonableness of the fee requested and whether the defendant continued to be eligible for assignment of counsel during the duration of the trial. Such certificates shall be attached to the request for payment of counsel fees. Counsel must submit bills to the appropriate court for payment within 60 days of the disposition of a case unless the trial judge finds that there are extenuating circumstances. Courts shall, within 30 days of receipt, certify statements as outlined above and forward the certified statements to the judicial council for payment.
Source. 1965, 296:1. 1977, 600:23. 1981, 568:66. 1985, 399:3, eff. July 1, 1985. 2002, 250:4, eff. May 17, 2002.
I. (a) Any adult defendant or juvenile respondent who has been assigned counsel or a public defender shall be subject to an order by the court, pursuant to this section, regarding payment to the state for counsel fees and expenses paid by the state on behalf of the defendant or juvenile, and regarding payment of an administrative service assessment. Any payment obligation shall apply only to a defendant who has been convicted or a juvenile who has been found delinquent.
(b) Upon entering a judgment of conviction or a finding of delinquency, and the issuance of sentence or disposition, the court shall enter a separate written order setting forth the reasons for the court's conclusion regarding the financial ability of the defendant or the juvenile, including any person liable for the support of the juvenile pursuant to RSA 604-A:2-a, to make payment of counsel fees and expenses, and administrative service assessment. In its discretion, the court may conduct an ability-to-pay hearing to assist in its determination. If the court finds that there is an ability to pay some or all of the counsel fees and expenses and the assessment, either presently or in the future, it shall order payment in such amounts and upon such terms and conditions it finds equitable; any payment obligation shall not commence until the conviction and sentence or the finding of delinquency and disposition has become final. If the court finds that there is no such ability to pay, it shall so order, and any payment obligation shall terminate.
(c) In assessing ability to pay upon or after the entering of a judgment of conviction and the issuance of a sentence, neither the court nor the office of cost containment shall consider income that is exempt from execution, levy, attachment, garnishment, or other legal process under any state or federal law, and shall be reduced only by the amount of expenses which are reasonably necessary for the maintenance of the defendant and his dependents.
(d) If the court determines that the defendant is financially unable to repay any fees and expenses to the state, the repayment obligation shall be waived. A copy of each order finding that the defendant has an ability to pay fees and assessments shall be forwarded to the commissioner of the department of administrative services and the office of cost containment. An order waiving the repayment obligation shall not be forwarded. Neither the commissioner of the department of administrative services nor the office of cost containment shall have the authority to alter the court's determination that a repayment obligation is waived.
(e) After the judgment of conviction is entered and a repayment order is issued, a defendant subject to a repayment order under this section may, if his or her circumstances have changed since the date of the court's order, petition the court for relief from the obligation imposed by this section, which may be granted upon a finding that the defendant is unable to comply with the terms of the court's order or any modification of the order by the court.
(f) The maximum payment amount for counsel fees and expenses shall be according to a schedule established by the administrator of the office of cost containment with the approval of the administrative justices of the courts. Any payment obligation for fees and expenses shall not exceed the amount of the state's flat rate payable to a contract attorney as established pursuant to RSA 604-B. The administrative service assessment shall not exceed 10 percent of the counsel fees and expenses. Payment shall be made to the office of cost containment unless the defendant or juvenile is placed on probation or sentenced to a period of conditional discharge, in which case repayment shall be made to the state through the department of corrections. Any payment obligation attributable to a juvenile shall terminate when the juvenile reaches the age of majority, except when the juvenile has been certified and tried as an adult.
(g) In a case where counsel has been appointed, and a repayment order issued, the defendant shall be required to notify the clerk of the court and the office of cost containment of each change of mail address and actual street address. Whenever notice to the defendant is required, notice to the last mail address on file shall be deemed notice to and binding on the defendant.
II. All petitions for court appointed counsel shall bear the following words in capital letters:
I UNDERSTAND THAT I MAY BE REQUIRED TO REPAY THE SERVICES PROVIDED TO ME BY COURT APPOINTED COUNSEL IF I AM CONVICTED UNLESS THE COURT FINDS THAT I AM OR WILL BE FINANCIALLY UNABLE TO PAY.
III. If any repayment ordered pursuant to paragraph I becomes overdue, the court having originally appointed counsel may order any employer of a former defendant to deduct from that person's wages or salary the appropriate amount due and to pay such amount to the appropriate department as determined under paragraph I, which shall refund such amount to the state, provided that no money, rights, or credits listed in RSA 512:21 shall be subject to deduction.
IV. Notwithstanding any other provision of law, any defendant whose sentence does not include actual incarceration in the state prison and who has had counsel or a public defender assigned to him at the expense of the state and who, as part of his sentence, is placed on probation or sentenced to a period of conditional discharge shall be required as a condition of such probation or conditional discharge to reimburse the state for all fees and expenses paid on his behalf in accordance with the terms of any order entered pursuant to paragraph I.
V. If the defendant is incarcerated in the state prison, orders for repayment, pursuant to paragraph I may be suspended until the time of the defendant's release. The adult parole board may make repayment of any order for repayment a condition of parole or early release. If the defendant has not been ordered to repay the state for expenses incurred on the defendant's behalf, at any time within 6 years of the time the defendant is released from the state prison the state may petition the superior court for repayment, and upon such petition the superior court shall order repayment unless the court finds the defendant is unable to comply with the terms of any order for repayment.
VI. At any time within 6 years of the disposition of an action in which the court finds at the time of disposition or thereafter that the defendant is not able to make payments to the state as provided in paragraph I, the state may petition the court for an order of repayment. The court shall order such repayment in whole or in partial payments, unless the court finds the defendant is unable to pay, in whole or in partial payments, the amounts paid on his behalf for fees and expenses pursuant to this chapter. Notice of each such order shall be forwarded to the commissioner of administrative services.
VII. The commissioner of administrative services, with the approval of governor and council, is authorized to enter into contracts to secure the repayment of fees and expenses paid by the state as provided for in this section. Any person or entity with whom the commissioner so contracts may bring any legal or equitable action authorized by law, including any petition authorized by this section, to secure an order for repayment, or repayment pursuant to any order, of fees and expenses paid by the state which are recoverable by the state under this section. The contract or contracts authorized by this paragraph may include provisions by which the contractor may, as consideration in whole or in part for services, receive a percentage of the amounts recovered on behalf of the state.
Source. 1969, 475:1. 1973, 370:24. 1981, 568:20, VI. 1983, 201:1. 1985, 342:3. 1987, 406:14-16. 1989, 345:7-10. 1991, 135:1, 2. 1992, 284:84. 1994, 288:1. 1995, 156:1-3, eff. July 1, 1995. 2019, 346:263, 264, eff. July 1, 2020.
604-A:10 Rulemaking; Records Required; Judicial Council; Commissioner of Administrative Services.
I. The judicial council shall keep records of the notification of eligibility and assignment of counsel as submitted by the courts of the state pursuant to supreme court order 81-5A and subsequent related orders. In addition to any other use the judicial council shall make of these records, the judicial council shall keep records including the following information and compile such information on a monthly basis:
(a) The name of the courts, including the location and the type of the court.
(b) The type of the case as defined by the most serious offense charged in the case, according to the following categories:
(2) Other felony
(c) Whether the case was assigned to a private attorney or a public defender.
II. When a final bill has been approved for payment to a private attorney, the judicial council shall record the following information:
(a) The type of case as defined in RSA 604-A:10, I(b).
(b) The amount of the attorney's fee.
III. The judicial council shall also compile the gross monthly cost for bills approved for payment for expenses other than counsel, including those pursuant to RSA 604-A:6.
IV. The commissioner of administrative services shall, with the approval of the attorney general, adopt rules pursuant to RSA 541-A, governing determinations of eligibility for payment of indigent defense expenditures, determinations of repayment schedules, financial and credit investigations, and any other matters the commissioner deems necessary or advisable for the performance of duties under this chapter.
V. The judicial council shall adopt standards relative to appointment for juvenile counsel. Such standards shall establish training, experience, and other qualifications for attorneys to represent minors in such proceedings, and shall be developed with consideration of relevant national standards including, but not limited to, the Juvenile Justice Standards of the Institute of Judicial Administration and American Bar Association. The council shall develop the standards required by this section in consultation with the judicial branch, the New Hampshire Bar Association, New Hampshire Legal Assistance, the New Hampshire Public Defender, the Disability Rights Center of New Hampshire, and the American Civil Liberties Union of New Hampshire, and shall adopt them no later than July 1, 2022.
Source. 1983, 120:4. 1985, 399:3. 1989, 345:11, 12, eff. July 1, 1989. 2002, 250:5, eff. May 17, 2002. 2014, 215:26, eff. July 1, 2015. 2021, 207:2, Pt. I, Sec. 5, eff. Jan. 1, 2022.