Rule 6. Probable Cause Hearing

(a) Circuit Court-District Division Probable Cause Hearing

(1) Jurisdiction. A probable cause hearing shall be scheduled in accordance with this rule in any case which is beyond the trial jurisdiction of the circuit court-district division and in which the defendant has not been indicted.

(2) Scheduling. If the defendant is in custody on the instant charge(s), the court shall hold a probable cause hearing within ten (10) days following the date of the arraignment. If the defendant is not in custody on the instant charge(s),the court shall hold the hearing within thirty (30) days following the date of the arraignment. If the circuit court receives verification [copy(ies) of indictment(s) with the corresponding circuit court case number and charge ID appearing on said document(s)] that the defendant has been indicted on a pending felony complaint(s), the circuit court will not hold the probable cause hearing for the indicted charge(s). The probable cause hearing shall remain scheduled for any unindicted felony charge(s). A probable cause hearing may be adjourned for reasonable cause.

(3)  Notice to Defendant.  The court shall inform the defendant of the complaint(s), the right to counsel, and the right to a probable cause hearing.  The court shall also tell the defendant that there is no obligation to make a statement and that any statement may be used against the defendant. 

(4) Evidence. The Rules of Evidence shall not apply at the hearing. The defendant may cross-examine adverse witnesses, testify and introduce evidence.  If the defendant elects to be examined, the defendant shall be sworn, but it shall always be a sufficient answer that the defendant declines to answer the question; and if at any time the defendant declines to answer further, the examination shall cease.  The parties may request sequestration of the witnesses.

(5) Finding of Probable Cause. If the circuit court determines that there is probable cause to believe that a charged offense(s) has/have been committed and the defendant committed it/them, the court shall bind over such charged offenses, together with any directly related misdemeanors and violations to the superior court which shall have jurisdiction.

(6) Finding of No Probable Cause. If the circuit court determines that there is no probable cause to believe that a charged offense(s) has/have been committed or that the defendant committed it/them, the court shall make a finding of no probable cause found on that/those charged offense(s). If the circuit court finds no probable cause on the felony charge(s) and there is/are related misdemeanor(s) or violation(s), the case will remain in circuit court for final disposition on the misdemeanor and/or violation charge(s). The finding of no probable cause shall not preclude the State from instituting a subsequent prosecution for the same offense(s) or another offense. 

(7) Waiver. A defendant may waive the right to a probable cause hearing.  The waiver shall be in writing. The court shall make a finding of probable cause waived on the charged offense(s). The court shall bind over such charged offenses, together with any directly related misdemeanors and violations to the superior court which shall have jurisdiction.

(8)  Upon indictment, a finding of probable cause, or waiver of probable cause, the felony level complaint(s) (which were indicted/probable cause found or waived) and any misdemeanor and violation level charges that are directly related to those felonies shall be so marked. Within ten (10) days of the finding, the clerk of the circuit court shall thereafter bind over the charge(s) to the clerk of the superior court.

Comment

A preliminary examination allows a defendant to challenge the decision of the prosecuting authorities to limit the defendant’s liberty pending consideration of the matter by a grand jury. State v. Arnault, 114 N.H. 216 (1974); Jewett v. Siegmund, 110 N.H. 203 (1970). The preliminary examination is not a trial on guilt or innocence.  It is merely an examination to determine if the State can establish that there is enough evidence to proceed to trial. In essence, it is a hearing to determine whether probable cause exists. See State ex rel McLetchie v. Laconia Dist. Court, 106 N.H. 48 (1964).

Courts and parties should note that RSA 596-A:9 requires the court to caution a defendant about the right to counsel and the right to remain silent.