Note to people who came here via a search engine: You are not at New Hampshire's RSA web site (follow the link above if you wish to be there). This folder has excerpts from a chapter of the NH RSAs that have some relevance to understanding and working with the state's Division of Children, Youth, and Families. These pages collect several sections into one page that is easier to navigate than the state's pages.

Chapter 604-A: Adequate Representation for Indigent Defendants in Criminal Cases

Table of Contents:
• Section 604-A:1 Representation of Defendants [state page]

• Section 604-A:1-a Neglected or Abused Children [state page]

• Section 604-A:2 Appointment of Counsel [state page]

• Section 604-A:2-a Additional Inquiry [state page]

• Section 604-A:2-b Contract Attorneys [state page]

• Section 604-A:2-c Determination of Financial Ability [state page]

• Section 604-A:2-d Partial Liability [state page]

• Section 604-A:3 Duration and Substitution of Appointments [state page]

• Section 604-A:4 Compensation of Counsel [state page]

• Section 604-A:5 Compensation Limited [state page]

• Section 604-A:6 Services Other Than Counsel [state page]

• Section 604-A:6-a Contract Services [state page]

• Section 604-A:7 Rules and Regulations [state page]

• Section 604-A:8 Payment of Expenses [state page]

• Section 604-A:9 Repayment [state page]

• Section 604-A:10 Rulemaking; Records Required; Judicial Council; Commissioner of Administrative Services [state page]

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 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.

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 by the indigent defense fund.

Source. 1973, 522:1. 1996, 248:9, eff. July 1, 1996.

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 appears shall advise the defendant that he has a right to be represented by counsel and that counsel will be appointed to represent him if he is financially unable to obtain counsel. Unless the defendant waives the appointment of counsel, if the defendant indicates to the court that he is financially unable to obtain counsel, the court shall instruct the defendant to complete a financial affidavit in such form as designated by the unit of cost containment. If after review of the financial affidavit and application of the rules established pursuant to RSA 604-A:10, IV the commissioner of administrative services, is satisfied that the defendant is financially unable to obtain counsel, the court shall appoint counsel to represent him; 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. 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.
    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.

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.

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. 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.

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.