Motion for Discovery (Criminal) - New Hampshire

MOTION FOR DISCOVERY (CRIMINAL) — NEW HAMPSHIRE

Table of Contents

1. Caption
2. Introduction
3. Factual Background
4. Legal Authority
5. Brady/Giglio Obligations
6. Categories of Discovery Requested
7. Good Faith Certification
8. Proposed Order
9. Certificate of Service
10. New Hampshire Practice Notes

Caption

THE STATE OF NEW HAMPSHIRE

[________________________________] SUPERIOR COURT

DEFENDANT'S MOTION FOR DISCOVERY

Introduction

COMES NOW the Defendant, [DEFENDANT FULL NAME], by and through undersigned counsel, and pursuant to N.H. Rule of Criminal Procedure 12, RSA 517:13, Brady v. Maryland, 373 U.S. 83 (1963), Giglio v. United States, 405 U.S. 150 (1972), and Part I, Articles 15 and 19 of the New Hampshire Constitution, respectfully moves this Honorable Court to order the State to produce the discovery materials described herein.

In support of this Motion, the Defendant states as follows:

Factual Background

1. The Defendant, [DEFENDANT FULL NAME], was charged on or about [__/__/____] with [CHARGE(S) AND RSA STATUTE(S)] in the above-captioned matter.

2. The Defendant was arraigned on [__/__/____] and entered a plea of not guilty.

3.

4. Despite the State's disclosure obligations under Rule 12(b), the following materials have not been provided: [________________________________].

Legal Authority

A. N.H. R. Crim. P. 12(b)(1) — Superior Court Disclosure by the State

Rule 12(b)(1) requires the State to provide the following categories without a defense motion, subject to the rule's timing, possession, intended-use, and other limits:

• defendant statements intended for use at trial or a pretrial evidentiary hearing (Rule 12(b)(1)(A));
• police reports, witness statements, and specified examination, test, experiment, and expert materials in the State's possession (Rule 12(b)(1)(B));
• the defendant's prior criminal record (Rule 12(b)(1)(C));
• books, papers, documents, photographs, tangible objects, buildings, or places intended for use at trial or a pretrial evidentiary hearing (Rule 12(b)(1)(D)); and
• exculpatory material required by Brady and its progeny, including State v. Laurie (Rule 12(b)(1)(E)).

The deadline is generally forty-five calendar days after a not-guilty plea for a direct-indictment case and ten calendar days after that plea when the case originated in circuit court, unless the presiding justice orders otherwise.

B. N.H. R. Crim. P. 12(b)(6), (8), and (9) — Additional Discovery, Protection, and Sanctions

The automatic disclosures do not convert every potentially useful record into mandatory discovery. A motion for additional discovery must identify the particular materials, document efforts to obtain them without a motion, and state any reason the opposing party gave for refusing them. The court may deny, restrict, or defer discovery for good cause and may impose a just sanction for noncompliance.

C. RSA 517:13 — Discovery Depositions in Criminal Cases

In the court's discretion, either party may take depositions of witnesses (except the defendant) upon a finding that the deposition is necessary to preserve testimony or ensure a fair trial.

D. Constitutional Authority

Part I, Article 15 (right of accused) and Article 19 (right to trial by jury and confrontation) of the New Hampshire Constitution, along with the Due Process Clause of the Fourteenth Amendment, require the State to disclose material exculpatory and impeachment evidence. State v. Laurie, 139 N.H. 325 (1995); State v. Addison, 160 N.H. 493 (2010).

Brady/Giglio Obligations

The Defendant specifically requests that the State comply with its obligations under Brady v. Maryland and its progeny by disclosing:

☐ All evidence favorable to the Defendant that is material to guilt or punishment, including evidence tending to negate guilt, mitigate the offense, or reduce the sentence (Rule 12(b)(1)(E)).

☐ Impeachment evidence required by Brady, Giglio, and their progeny regarding a State witness, including as applicable:

• Prior inconsistent statements
• Benefits, promises, inducements, or plea agreements extended to witnesses
• Bias, motive, or interest of witnesses
• Prior criminal convictions or pending charges of witnesses
• Prior untruthful conduct by witnesses
• Mental health or substance abuse issues affecting witness credibility

☐ Any evidence of third-party culpability.

☐ Any evidence of law enforcement misconduct related to this case.

☐ All information known to the prosecution team, including law enforcement agencies involved in the investigation.

Categories of Discovery Requested

The Defendant requests that the Court order the State to produce the checked materials below. Counsel must tie each item to Rule 12's automatic-disclosure categories, a constitutional disclosure duty, or a specifically supported request for additional discovery; unchecked examples are not assertions that the item is categorically discoverable.

Category 1: Witness Information

☐ The State's trial or hearing witness list when due under Rule 12(b)(4)(B)
☐ Statements of witnesses the State anticipates calling, subject to Rule 12(b)(4)(B) and permitted redactions
☐ Criminal-record checks required by Rule 12(b)(4)(B) for covered State witnesses
☐ Other identified witness material supported by the following authority and facts: [________________________________]

Category 2: Defendant's Statements

☐ Defendant statements within Rule 12(b)(1)(A), including the intended-use basis: [________________________________]
☐ Miranda warnings and responses contained in a covered statement or police report
☐ Other identified statement material supported by the following authority and facts: [________________________________]

Category 3: Documentary and Tangible Evidence

☐ Documents, photographs, recordings, tangible objects, buildings, or places the State intends to use at trial or a pretrial evidentiary hearing
☐ Police reports within Rule 12(b)(1)(B)
☐ Specifically identified body-camera, surveillance, 911, dispatch, or warrant material that is covered by Rule 12(b)(1), constitutionally required, or supported as additional discovery: [________________________________]

Category 4: Scientific and Expert Evidence

☐ Expert reports or statements, examination results, tests, experiments, and qualification summaries within Rule 12(b)(1)(B)
☐ New Hampshire State Forensic Laboratory drug-testing results under the rule's separate timing provision
☐ Specifically identified chain-of-custody, underlying-data, methodology, or bench-note material supported as additional discovery: [________________________________]

Category 5: Electronic and Digital Evidence

☐ Specifically identified electronic evidence intended for use by the State: [________________________________]
☐ Specifically identified electronic evidence required by Brady or supported as additional discovery: [________________________________]

Category 6: Law Enforcement Records

☐ Police reports and covered witness statements within Rule 12(b)(1)(B)
☐ Laurie/Giglio material constitutionally required for a State witness
☐ Specifically identified internal-affairs, disciplinary, use-of-force, or officer-note material supported by the following facts and authority: [________________________________]

Category 7: Exculpatory and Impeachment Material

☐ All material described in the Brady/Giglio section above
☐ Any evidence that identification procedures were suggestive
☐ Any recantations or contradictory statements by witnesses
☐ All information regarding confidential informants used in the investigation
☐ Any Laurie list entries for officers involved in this investigation

Good Faith Certification

Undersigned counsel certifies the following:

1. Counsel has made a good faith effort to obtain the requested discovery from the State without court intervention.

2. On [__/__/____], counsel [sent a written discovery request / conferred with the county attorney / assistant county attorney] regarding the outstanding discovery.

3. The State has [failed to respond / partially responded / refused to produce] the following categories: [________________________________].

4. This Motion is not filed for the purpose of delay but is necessary to ensure the Defendant's constitutional right to a fair trial.

Signature: [________________________________]
Print Name: [________________________________]
N.H. Bar No.: [________________________________]
Date: [__/__/____]

Proposed Order

THE STATE OF NEW HAMPSHIRE
[________________________________] SUPERIOR COURT

THE STATE OF NEW HAMPSHIRE v. [DEFENDANT FULL NAME]
Case No.: [________________________________]

ORDER ON DEFENDANT'S MOTION FOR DISCOVERY

Upon consideration of the Defendant's Motion for Discovery, any objection thereto, and the applicable law, it is hereby:

ORDERED that the State shall produce the following discovery materials to the Defendant within [____] days of the date of this Order:

☐ All materials identified in Categories 1 through 7 of the Defendant's Motion
☐ The following specific categories: [________________________________]

ORDERED that the State's obligation to disclose is continuing and extends to all material described herein that subsequently comes into the possession, custody, or control of the prosecution or members of the prosecution team.

ORDERED that failure to comply with this Order may result in sanctions as the Court deems appropriate, including ordering disclosure, granting a continuance, excluding evidence, or other relief.

Date: [__/__/____]

_______________________________________________
Presiding Justice
[________________________________] Superior Court

Certificate of Service

I HEREBY CERTIFY that on [__/__/____], a copy of the foregoing Motion for Discovery was served upon:

[COUNTY ATTORNEY / ASSISTANT COUNTY ATTORNEY NAME]
[________________________________] County Attorney's Office
[________________________________]
[________________________________]
[________________________________]

☐ By hand delivery
☐ By first-class mail, postage prepaid
☐ By electronic filing (NH e-Court)
☐ By email to: [________________________________]

_______________________________________________
[ATTORNEY NAME]
[N.H. BAR NO.]
[FIRM NAME]
[ADDRESS]
[CITY, STATE ZIP]
[TELEPHONE]
[EMAIL]

Attorney for Defendant

New Hampshire Practice Notes

Automatic Disclosure: Superior Court Rule 12(b)(1) requires specified materials without a defense motion, and Rule 12(b)(4) separately governs pretrial witness information. Exculpatory material appears in Rule 12(b)(1)(E); the current rule does not contain the former nine-item subsection map used by this template.

Laurie List / Exculpatory Evidence Schedule: New Hampshire maintains the "Laurie List" (now formally the Exculpatory Evidence Schedule), which identifies law enforcement officers with sustained findings of misconduct that may constitute exculpatory evidence. The State must disclose whether any testifying officer appears on the list. See State v. Laurie, 139 N.H. 325 (1995).

Discovery Depositions: Under RSA 517:13 and Rule 13, discovery depositions are available in criminal cases upon court approval. The court considers the complexity of the issues, other available discovery opportunities, and any special circumstances. Expert witness depositions may be taken as of right in felony cases.

Protective Orders: Rule 12(b)(8) allows the court to deny, restrict, or defer discovery for good cause or enter another appropriate order.

Continuing Obligation: The State has a continuing duty to disclose additional evidence and information discovered after initial disclosures.

Circuit Court vs. Superior Court: Rule 12 applies to both. Paragraph (a) governs Circuit Court-District Division discovery, while paragraph (b) supplies the distinct Superior Court schedule and disclosure map.

Key Case Law:
- State v. Laurie, 139 N.H. 325 (1995) — Brady/Giglio and law enforcement credibility disclosures
- State v. Addison, 160 N.H. 493 (2010) — scope of prosecutorial disclosure obligations
- State v. Etienne, 163 N.H. 57 (2011) — discovery sanctions
- State v. Briand, 130 N.H. 650 (1988) — materiality of exculpatory evidence