Criminal Lawyers in NH
The New Hampshire Criminal Defense Lawyers' Definitive Guide to Criminal Cases
Attorneys Cohen & Winters are criminal lawyers in NH. An accusation is a powerful thing. Whether a person is innocent or guilty, just a charge alone is devastating. The New Hampshire criminal defense lawyers at Cohen and Winters have defended people accused of crimes ranging from simple assault through first-degree murder. We have created this guide based on some of the most frequent questions we get about criminal charges in New Hampshire. If the police have charged you with a crime, be it minor or serious, don't hesitate to reach out to us with any questions. We offer a free consultation.
What are the Differences Between Criminal and Civil Cases?
There are a few key differences between civil and criminal cases. In a civil case, one private party brings a complaint for against another private party. The plaintiff asks for the court to award money damages against the defendant. Sometimes the plaintiff asks that the court order the defendant to do or not to a certain act This could be something like, for example, selling a piece of real estate, or cutting down a tree in a yard. What the plaintiff in a civil case cannot do is ask the court is to punish the defendant for wrongdoing. A judge in a civil case can only put a defendant in jail for contempt of court, for not following the judge's orders.
In a criminal case, on the other hand, there is no private plaintiff. The prosecuting side is always the government. In New Hampshire this is referred to as the "State." In federal court it is the "Government." In some other states it may be the "People" or the "Commonwealth". The victim in the case has input but not the final decision about how the state prosecutes the case.
A Criminal Defendant's Rights
Another important difference is that defendant has many important rights that a defendant in a civil case does not have. For example, in for the state to convict a defendant in a criminal case it must prove the defendant guilty beyond a reasonable doubt. In a civil case, the standard of proof to find a defendant responsible is only "by a preponderance of the evidence" (usually understood to mean more likely than not). In criminal cases, unlike in civil cases, the defendant cannot be forced to testify. If he chooses not to testify this choice cannot be used against him to infer guilt. A final example is that, if the criminal charges carry the possibility of jail time, then the court must appoint a lawyer to represent him if he cannot afford to hire one.
What are the Levels of Criminal Charges in New Hampshire?
In New Hampshire there are three basic levels of criminal cases that have to do with the maximum possible punishment. Felonies carry the most possible punishment - at least one year in prison or more. Misdemeanors are crimes that may or may not carry jail time of no greater than one year. Violations are infractions that are not considered crimes under the New Hampshire criminal code. While all types of charges carrying varying degrees of fine, the main distinguishing difference to most people is the amount of possible incarceration.
There are three classifications of felonies:
- Class A felonies carry a maximum of fifteen years in prison.
How Sentencing Work in New Hampshire
All New Hampshire prison sentences carry a minimum term and a maximum term. The maximum term must be at least twice as long as the minimum term. Any prisoner is eligible to be released at the discretion of the parole board once he has completed her minimum term. The parole board will usually release a prisoner at his minimum. It does not have to though. It will look at whether the prisoner has had major disciplinary issues and has completed all recommended classes. If he is released, he a parole officer will supervise him until he completes the maximum sentence.
A prisoner who violates his parole will be returned to prison for a length of time that the parole board determines. This may be a few months or rest of his prison sentence. Most prison sentences are expressed in terms of a minimum number and a maximum number. For example, prison sentence could "2 to 7" or "4 to 8" . Therefore, because the maximum possible punishment for a class A felony is 15 years, the longest minimum portion is 7 1/2 years.
- Class B felonies carry up to 7 years, meaning the longest total sentence is 3 1/2 to 7 years.
- Special felonies are any felony that carries a sentence different than class A or class B. Most of these carry higher sentences than a class A. For example, murder, aggravated felonious sexual assault, and certain drug trafficking charges all carry more than a maximum of fifteen years. For this reason, many people believe a special felony is inherently more serious. However, some special felonies carry a lower sentence than a class B. For example, the special felony of driving after being a deemed a habitual offender carries a maximum of five years.
New Hampshire law defines two types of misdemeanors - class A and class B.
- Class A misdemeanors carry up to one year in jail. Defendants serve a jail sentence at a county correctional facility, not at the New Hampshire State Prison. Unlike with prison sentences, there is no minimum and maximum portion. The county jail can reduce the sentence by one-third for good behavior. So, if a court sentences a defendant to three months in jail, the jail could release him after two months if he follows the rules.
- Class B misdemeanors carry no possible jail time, only a fine.
Violations are not considered criminal offenses. They carry no jail time and often are tickets that can be paid without going to court if the person does not want to fight the charge. Many ordinary driving offenses, such as speeding, are violations. Certain violations, are considered major motor vehicle violations. These are violations that carry greater points on a person's driving license. Most importantly they are "major offenses" for purposes that DMV uses to classify drivers as habitual offenders. The points system for determining whether a driver should lose his license, or be classified as a habitual offender is complicated and often takes an expert to determine.
New Hampshire Criminal Defense Lawyers Know the Procedure From Beginning to End
There are various stages of a New Hampshire criminal case. It starts with with when the police charge the defendant, and ends when the court either finds him guilty, or dismisses the case.
Initial Criminal Charges
The most common way for the state to charge a defendant with a crime is by a police officer arresting him. Once they arrest a defendant the police will process him at the police station. This involves things like taking fingerprints and photographs. The defendant should cooperate with the booking. However, New Hampshire criminal defense lawyers strongly advise defendants not to answer any questions about the charges.
As part of the arrest procedure, the police will call a bail commissioner. The bail commissioner is a special officer who has the authority to temporarily set bail until the judge sees the defendant. If the bail commissioner sets an amount of bail that the defendant can't post, then the police will bring him to the jail and schedule an arraignment, usually for the next business day. At the arraignment a judge will review the defendant's bail. If the bail commissioner releases the defendant on his own recognizance, or sets bail in an amount he can post, then the arraignment will be scheduled usually weeks or even months into the future.
Sometimes, the police do not arrest the defendant. Instead they will file a charge at the court on paper. Then the court will issue a summons ordering the defendant to appear. This is most common in minor cases but it can happen in serious cases too.
After the charges have been brought, the court will schedule an arraignment. Felony charges must be brought in superior court. The state can choose to bring misdemeanor charges to superior court if it wants but usually it brings them in district court. At the arraignment, the judge will review the bail commissioner's bail decision. If the bail commissioner released defendant then the judge can raise the bail. That is rare. If the bail commissioner detained the defendant, New Hampshire criminal defense lawyers usually try to convince the judge to release their client. If not, he will continue to be held. He can ask for further bail review hearings. But unless the judge decides to change the bail, or the defendant raises enough money to post it, he will be held in jail until at least the trial.
At the arraignment, the judge or a court clerk reads the charges to the defendant. New Hampshire criminal defense lawyers often waive the reading of the charges. Instead, they receive the charges in writing and review them with their clients privately.
Court Appointed Lawyer
Finally, if the defendant is charged with an offense that carries any possibility of jail time (a felony or class A misdemeanor), and he cannot afford to hire a lawyer, then the court will appoint a lawyer for him. He will have to file a financial affidavit with the court proving he cannot afford a lawyer. The court will usually appoint a public defender. If the public defender's office has a conflict of interest, the court will choose from a list of lawyers who have signed up to take court appointed cases.
New Hampshire criminal defense lawyers are often able to waive the arraignment in writing. Doing this avoids the defendant having to appear.
After the arraignment the court will hold a pretrial hearing. The court may call it a trial management conference, a dispositional conference, a pretrial conference, or a status conference. Whatever the court calls it, the concept is the same. The judge expects that the prosecutor has provided the defense lawyer with all relevant discovery materials. This is paperwork or other evidence. It includes things like police reports, witness statements, call logs, photographs, and videos. The judge also expects that the prosecutor will have provided a plea bargain offer. The court, of course, cannot force a defendant to accept a plea offer. But the court can require a defense lawyer to review the plea bargain offer with her client, and make a counter-proposal if the defense wants to negotiate.
At this pretrial hearing the court tries to get some sense from the lawyers about the case. The Judge will ask whether the case is likely a plea bargain or a trial. Many judges hold these hearings at their bench or in their chambers. This may be out of the earshot of the defendant. The judge wants to encourage the lawyers to speak freely. Some judges just ask the lawyers to submit a written report and only hold a verbal hearing if they deem it necessary.
If the defendant is likely to take plea bargain, the court will schedule a plea hearing. If not, the court will schedule a trial. Sometimes the judge will schedule a further pretrial hearing. This is usually because lawyers aren't ready to give a clear report on the status of the case. Or, they may need to gather more information before they will be ready for trial.
Sometimes lawyers file motions prior to the trial. There are a variety of possible motions. New Hampshire criminal defense lawyers often file motions to suppress. This type of motions alleges the police illegally gathered evidence. Usually this because of an illegal search. It could also be because the police illegally took a statement from the defendant. Another type of motion is a motion to dismiss. This may argue that the complaint fails to allege a real crime. Other types of motions, filed by either side, claim that certain evidence is or is not relevant at trial.
The judge may rule on some motions without having a hearing. Often, however, the court will schedule a hearing on the motions prior to the actual trial.
Many cases end in plea bargains. This is an agreement in which the defendant pleads guilt in exchange for the prosecutor recommending a certain sentence. Sometimes the bargain will involve a guilty plea to the charges that were initially brought. In other instances, the agreement will be for the defendant to plea to lower charges than those initially brought.
In New Hampshire most plea bargains are binding only if the judge agrees, meaning that if the judge does not go along with the terms, the defendant has the right to back out of the agreement. However, this is not always the case. Some plea bargains in New Hampshire are binding even if the judge sentences the defendant to higher than agreed. Other jurisdictions operate differently. Even with a jurisdiction different courts and judges can have different procedures. Good New Hampshire criminal defense lawyers will know the intricacies of how plea bargaining works in a particular system.
If the defendant does not plead guilty then the court will hold a trial. Felony cases take place in superior court. In superior court, a jury decides whether the state proved defendant guilty beyond a reasonable doubt.
In class A misdemeanor cases, the law also entitles a defendant to a jury trial. But for misdemeanors, New Hampshire has a somewhat unique system. If the prosecutor or police bring a misdemeanor charge in district court, the judge will hear the initial trial. If the judge finds the defendant not guilty, the case is over. However, if the judge finds the defendant guilty, the judge will sentence the defendant. The defendant can then appeal for a brand new trial in the superior court. If the defendant appeals, the superior court holds an entirely new trial and puts the sentence on hold. This time, it is a jury trial. If the jury finds the defendant guilty, the superior court judge will sentence him. The superior court judge can give a higher sentence than what the district court judge gave. So it's a gamble.
If the defendant pleads guilty, or the judge or jury finds him guilty, then judge will sentence him. The federal system, and some states, have sentencing guidelines that a judge must look at. New Hampshire, however, is wide open as to what sentence the judge can give.
After sentencing the defendant can appeal any issues of law to the Supreme Court. However, if it is a class A misdemeanor conviction in district court, the first appeal must be to the superior court for the de novo appeal. Only the defendant loses that trial can he appeal to the Supreme Court. The Supreme Court does not try the entire case again, or decide the facts. It can only review decision of law. Most criminal appeals are denied.
There are other various techniques a defendant can try after being sentenced Most of them tend to be long shots. One is to request that a three-judge panel of superior court judges review the sentence. However, this is risky because the judges can either raise or lower the sentence. A defendant can also allege his lawyer was ineffective and therefore should get a new trial. One extreme "hail Mary" is to request a pardon by the Governor of New Hampshire.
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