Motion for Discovery (Criminal)

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.

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) — Disclosure by the State

Rule 12(b) requires the State to disclose, without request, the following to the defense:

• Names and addresses of all persons known to the prosecution to have information concerning the offense (Rule 12(b)(1));
• Written and recorded statements of the defendant (Rule 12(b)(2));
• Written and recorded statements of any witness (Rule 12(b)(3));
• Grand jury testimony relating to the case (Rule 12(b)(4));
• Reports or statements of experts, including results of physical or mental examinations, scientific tests, and experiments (Rule 12(b)(5));
• Documents, photographs, and tangible objects the State intends to use at trial or that were obtained from the defendant (Rule 12(b)(6));
• Records of prior criminal convictions of the defendant and prospective witnesses (Rule 12(b)(7));
• Any material or information that tends to negate the guilt of the defendant or mitigate the offense (Rule 12(b)(8));
• Any material or information that tends to impeach the credibility of a prosecution witness (Rule 12(b)(9)).

B. N.H. R. Crim. P. 12(d) — Regulation of Discovery

The court may issue orders regulating, restricting, or deferring discovery for good cause shown, including risk to witness safety.

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 (codified in Rule 12(b)(8)).

☐ All impeachment evidence regarding any State witness (codified in Rule 12(b)(9)), including but not limited to:

• 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 following:

Category 1: Witness Information

☐ Names and addresses of all persons known to the prosecution to have information concerning the offense
☐ All written and recorded statements of such persons
☐ Grand jury testimony relating to the case
☐ Criminal records and pending charges of all prospective State witnesses

Category 2: Defendant's Statements

☐ All written, recorded, or oral statements attributed to the Defendant
☐ Grand jury testimony of the Defendant
☐ Miranda warnings administered and Defendant's responses
☐ Statements of co-defendants

Category 3: Documentary and Tangible Evidence

☐ All documents, photographs, recordings, and tangible objects the State intends to use at trial
☐ Objects obtained from or belonging to the Defendant
☐ Body-worn camera footage from all officers involved
☐ Surveillance video and audio recordings
☐ 911 call recordings and dispatch records
☐ Search warrants, affidavits, and return inventories

Category 4: Scientific and Expert Evidence

☐ Reports and statements of all experts made in connection with the case
☐ Results of physical, mental, and scientific examinations, tests, and experiments
☐ Chain of custody documentation for all physical evidence
☐ Names, qualifications, and opinions of expert witnesses
☐ Underlying data and methodology for all expert opinions
☐ New Hampshire State Police Forensic Laboratory reports and bench notes

Category 5: Electronic and Digital Evidence

☐ Cell phone records, GPS data, and cell site location information
☐ Social media records and electronic communications
☐ Computer forensic analysis reports
☐ Electronic surveillance records

Category 6: Law Enforcement Records

☐ All police reports, supplemental reports, and officer notes
☐ Internal affairs files of officers involved (if relevant to credibility)
☐ Disciplinary history of testifying officers bearing on truthfulness
☐ Use-of-force reports related to the Defendant's arrest
☐ Laurie list / exculpatory evidence schedule entries for testifying officers

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: N.H. Rule 12(b) requires the State to disclose specified materials without the necessity of a defense request. New Hampshire's rule explicitly includes both exculpatory evidence (Rule 12(b)(8)) and impeachment evidence (Rule 12(b)(9)).

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(d) allows the court to issue orders regulating, restricting, or deferring discovery for good cause, including risk to witness safety or national security concerns.

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

Circuit Court vs. Superior Court: Discovery rules differ slightly between Circuit Court (misdemeanors) and Superior Court (felonies). Rule 12 applies primarily to Superior Court proceedings.

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