Juvenile Indigent Defense Delivery System
New Hampshire provides counsel to indigent youth in delinquency proceedings through the New Hampshire Public Defender, a private non-profit that has been funded by the state to provide primary indigent defense services since 1972. N.H. Rev. Stat. §§ 604-B:1, B:2. Appellate representation is provided by the New Hampshire Public Defender in conjunction with the University of New Hampshire School of Law, the state’s only accredited law school.
The alternate public defender program represents indigent defendants when the public defender has a conflict. N.H. Rev. Stat. § 604-B:8.
New Hampshire has no statutorily required or recommended training requirements or standards for attorneys representing youth in delinquency proceedings.
New Hampshire youth have a waivable right to a trial by jury if they meet “the criteria for commitment to an adult correctional facility,” and their “disposition includes an order of conditional release extending beyond the juvenile’s age of majority.” N.H. Rev. Stat. § 169-B:19(III)-(c).
In addition to statutes and case law, juvenile court proceedings are governed by court rules. These are often promulgated at the state level, but may also be passed at the local court level instead of or in addition to statewide rules. New Hampshire’s delinquency proceedings are governed by the Rules of the Circuit Court of the State of New Hampshire-Family Division, Section 3: Juvenile Delinquency and Child in Need of Services.
Right to Counsel
Beyond the right to counsel in juvenile court guaranteed by the Due Process Clause of the United States Constitution and In re Gault, 387 U.S. 1 (1967), states often have state constitution or statutory provisions further expanding upon on or delineating that right.
In New Hampshire, youth have the right to counsel in delinquency proceedings and counsel should be appointed at arraignment, or if detained pre-trial, “upon the issuance of the detention order.” N.H. Rev. Stat. § 169-B:12(I). “When an attorney is appointed as counsel for a child, representation shall include counsel and investigative, expert and other services, including process to compel the attendance of witnesses, as may be necessary to protect the rights of the child.” N.H. Rev. Stat. § 169-B:12(I-a).
The role of court appointed counsel is defined by statute as representatives of a defendant “from his initial appearance before the court at every stage of the proceedings until the entry of final judgment.” N.H. Rev. Stat. § 604-A:3. In addition, “if the court has received information indicating that the minor has a cognitive, emotional, learning, or sensory disability, the court shall require the minor to consult with counsel.” N.H. Rev. Stat. § 169-B:12(I).
A child is specifically entitled to counsel at the following stages:
- At arraignment. N.H. Rev. Stat. § 169-B:12(I).
- Pre-trial detention hearing. N.H. Rev. Stat. § 169-B:12(IV).
- Transfer hearing. N.H. Rev. Stat. § 169-B:24(II).
- Parole revocation hearing. N.H. Rev. Stat. § 170-H:10-a(I).
Determination of Indigence
New Hampshire has no presumption of indigence in juvenile court proceedings. To be deemed indigent, the child must “satisf[y] the court . . . that the minor is financially unable to independently obtain counsel.” N.H. Rev. Stat. § 169-B:12(I).
Whenever a court appoints counsel for a child, the court “shall” determine whether any person who is liable for the support of the minor is financially able to pay for the minor’s attorney, and if they are able, “shall” require that person reimburse the state for the cost of representation. N.H. Rev. Stat. § 169-B:12(III).
Waiver of Counsel
A child in New Hampshire may waive his or her right to counsel if:
- “The minor is represented by a non-hostile parent, guardian or custodian;
- Both the minor and parent, guardian or custodian agree to waive counsel;
- In the court’s opinion the waiver is made competently, voluntarily and with full understanding of the consequences; and
- The petition does not allege a violation of [statutorily-delineated crimes];
- The prosecution has informed the court that it does not intend to seek [transfer to or certification in adult court].” N.H. Rev. Stat. § 169-B:12(II).
Except in cases filed by the parent, children entering a plea without counsel requires the child and parent to “review and sign: (1) A Juvenile Acknowledgment of Rights form; and (2) A Waiver of Counsel form.” N.H.Fam. Div. R. 3.4.
Children facing revocation of parole are not allowed to waive their right to counsel without first consulting with an attorney. N.H. Rev. Stat. § 170-H:10-a(I). Additionally, “[c]hildren known to the department or the board to have an emotional disorder, intellectual disability, or any other condition which may be expected to interfere with a child’s ability to understand the proceedings, make decisions, or otherwise handle the proceedings without the assistance of counsel may not waive their right to counsel.” N.H. Rev. Stat. § 170-H:10-a(I).
When and how the court may decide to detain a child or otherwise place restrictions on the child’s freedom is defined by statute and court rules. In New Hampshire, a detention hearing must occur within 24 hours of the child being detained, excluding weekends and holidays. N.H. Rev. Stat. § 169-B:12(IV)(b).
Provisions for the detention of youth are found in N.H. Rev. Stat. §§ 169-B:9, 169-B:11, 169-B:12(IV), 169-B:14, and 621-A:6.
The U.S. Constitution and Supreme Court case law are also sources of due process rights beyond local and state statutes and provisions. NJDC’s Detention Page provides more information about detaining youth.
The legal needs of children in the delinquency system rarely end at disposition, and states vary in the way they provide a right to representation on these post-disposition issues.
In New Hampshire, representation for youth in delinquency and CHINS proceedings automatically ends “30 . . . days after the date of the Clerk’s notice of the dispositional order, unless a post-dispositional motion is filed within that [30-day] period, or the court otherwise orders representation to continue.” N.H. Fam. Div. R. 3.11. If a post-dispositional motion is filed within 30 days, representation ends 30 days after the court rules on the motion. N.H. Fam. Div. R. 3.11. If the court orders representation to continue, ”the order shall state the specific duration and purpose of the continued representation,” and representation ends “immediately at the end of the ordered duration.” N.H. Fam. Div. R. 3.11.
New Hampshire statutes list one post-disposition proceeding at which youth have a right to counsel.
In New Hampshire, youth have a right to counsel in the following post-disposition proceeding:
- Parole revocation hearings. N.H. Rev. Stat. § 170-H:10-a(I).
NJDC’s Post-Disposition Page has more information on this topic from a national perspective.
Ages of Juvenile Court Jurisdiction
The age of a child who comes within the jurisdiction of the state’s juvenile or family courts is defined by state law. In New Hampshire:
- No statute specifies the youngest age at which a child can be adjudicated delinquent.
- Juvenile court has jurisdiction over offenses alleged to have been committed prior to a child’s 18th birthday; after age 18, the youth is charged in adult court. N.H. Rev. Stat §169-B:4;
- Juvenile court can retain jurisdiction over youth up to age 21, provided that the offense alleged to have been committed occurred before the youth turned 18. N.H. Rev. Stat. § 169-B:4.
Youth in Adult Court
Despite the existence of juvenile courts, many youth are still tried as adults. New Hampshire has two ways that youth can be prosecuted as adults:
- Discretionary judicial waiver: In cases where a child is charged with a felony, the court can transfer the case to adult court after a hearing. N.H. Rev. Stat. § 169-B:24(I).
- Presumptive judicial waiver: For youth age 15 and older charged with certain serious offenses, there is a presumption that the youth will be transferred to adult court. N.H. Rev. Stat. § 169-B:24(IV).
- Once an Adult, Always an Adult. N.H. Rev. Stat. § 169-B:27.
NJDC conducts statewide assessments of access to counsel and the quality of juvenile defense representation in delinquency proceedings around the country. These assessments provide a state with baseline information about the nature and efficacy of its juvenile indigent defense structures, highlight the strengths and weaknesses of the indigent juvenile defense system, and provide tailored recommendations that address each state’s distinctive characteristics to help decision-makers focus on key trouble spots and highlight best practices. The NJDC State Assessment Page provides more information about state assessments.
NJDC has not yet conducted an assessment of the juvenile indigent defense system in New Hampshire. If you would like to collaborate with NJDC to fundraise for, plan, or engage in an assessment in this state, please contact us.