ADEQUATE REPRESENTATION FOR INDIGENT DEFENDANTS IN CRIMINAL CASES

RSA tit. LIX, ch. 604-A

in effect

RSA 604-A:1 Representation of Defendants.

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 of juveniles shall include all court ordered representation and shall be paid from funds appropriated for indigent defense pursuant to this chapter. 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. 2009, 144:182, eff. July 1, 2009.

RSA 604-A:1-a Neglected or Abused Children.

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 from funds appropriated for indigent defense pursuant to this chapter. In cases involving a neglected or abused child, when an expressed interest attorney is appointed for the child as provided in RSA 169-C:10, the cost of such appointment shall be paid from funds appropriated for indigent defense in this chapter. In cases involving a neglected or abused child, when an attorney is appointed to represent a parent determined to be indigent pursuant to RSA 169-C:10, II, at the preliminary hearing or a hearing pursuant to RSA 169-C:6-a, III, whichever occurs earlier, the cost of such appointment, including counsel and investigative, expert, or other services and expenses, shall be paid from funds appropriated for indigent defense pursuant to this chapter. Counsel shall petition the court for investigative, expert, or other services necessary to provide adequate representation. If the court finds that such services are necessary and that the parent is financially unable to obtain them, the court shall authorize counsel to obtain the necessary services on behalf of the parent. Services authorized under this section shall be in addition to payment for expenses provided under RSA 169-C or RSA 170-C. Source. 1973, 522:1. 1996, 248:9, eff. July 1, 1996. 2008, 296:24, eff. June 27, 2008. 2009, 144:183, eff. July 1, 2009. 2011, 224:74, eff. July 1, 2011. 2013, 144:58, eff. July 1, 2013. 2021, 207:2, Pt. V, Sec. 3, eff. Oct. 9, 2021.

RSA 604-A:1-b Additional Funding.

604-A:1-b. Additional Funding. In the event that expenditures for indigent defense by the judicial council are greater than amounts appropriated in the operating budget, the judicial council may request, with prior approval of the fiscal committee of the general court, that the governor and council authorize additional funding. For funds requested and approved, the governor is authorized to draw a warrant from any money in the treasury not otherwise appropriated. Source. 2008, 296:25, eff. June 27, 2008.

RSA 604-A:1-c Additional Funding From State Departments and Agencies.

604-A:1-c. Additional Funding From State Departments and Agencies. I. Every state department, board, institution, commission, or agency which receives general fund grants or supplemental appropriations outside of the state biennial operating budget for the purpose of conducting law enforcement activities that may result in increased costs for indigent defense as determined by the court, shall transfer 5 percent of such funds received to the judicial council to be used to pay for indigent defense costs resulting from such law enforcement activities. Payment for expenses of indigent representation under this section shall be made pursuant to RSA 604-A:8. II. The department of safety shall transfer 5 percent of any additional funds appropriated for the substance abuse enforcement program established in RSA 21-P:66 to the judicial council to be used to pay for indigent defense costs resulting from such law enforcement activities. Payment for expenses of indigent representation under this section shall be made pursuant to RSA 604-A:8. Source. 2017, 156:222, eff. July 1, 2017. 2021, 91:383, eff. July 1, 2021.

RSA 604-A:2 Appointment of Counsel.

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 or she appears shall advise the defendant that he or she has a right to be represented by counsel and that counsel will be appointed to represent him or her if he or she is financially unable to obtain counsel. Unless the defendant waives the appointment of counsel, if the defendant indicates to the court that he or she is financially unable to obtain counsel, the court shall instruct the defendant to complete a financial statement under oath. If after review of the financial statement under oath the court is satisfied that the defendant is financially unable to obtain counsel, the court shall appoint counsel to represent him or her; 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 or her. 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. In a post-conviction proceeding in which a defendant seeks to attack the validity of an underlying conviction, the court shall appoint counsel or approve a request for services other than counsel when the interests of justice or judicial economy require. 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. II-a. [Repealed.] III. [Repealed.] IV. (a) The court shall review any information available to it regarding the defendant's mental condition and shall require the state to disclose any information as to the defendant's mental condition. If the court has information indicating the defendant has a mental illness, the court shall act on any application for appointed counsel on the same day as the defendant's first court appearance. If the application is approved, the court shall, by phone, notify the attorney appointed to represent the defendant and immediately transmit all relevant court documents to the attorney by facsimile or other electronic transmission. (b) The court shall appoint counsel without formal application if the defendant is without counsel and mental illness appears to be interfering with the defendant's ability to communicate, understand court proceedings, or to complete a formal application on a timely basis. (c) If a public defender is appointed, the public defender, upon receiving notification that the defendant may have a mental illness, shall, on the day notice of the appointment is received, designate a specific attorney to represent the defendant. 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. 2010, 250:3, eff. Jan. 2, 2011. 2014, 188:2, eff. Jan. 1, 2015. 2015, 21:1, eff. May 5, 2015. 2019, 346:394, eff. July 1, 2019. 2024, 333:3, eff. Aug. 2, 2024; 333:7, eff. Jan. 1, 2026. 2025, 141:216; 141:222, VII, eff. July 1, 2025.

RSA 604-A:2-b Contract Attorneys.

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. No contract providing for the representation of children in proceedings arising under RSA 169-B shall be based on payment of a predetermined fee per case or other payment structure which creates a financial disincentive for attorneys to provide effective representation in such cases. 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. 2021, 207:2, Pt. I, Sec. 4, eff. Jan. 1, 2022.

RSA 604-A:2-c Determination of Financial Ability.

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 court shall consider the defendant's ability to borrow some or all of the necessary funds. Source. 1985, 342:2. 1989, 345:5, eff. July 1, 1989. 2025, 141:217, eff. July 1, 2025.

RSA 604-A:2-e Counsel in Juvenile Delinquency Cases.

604-A:2-e. Counsel in Juvenile Delinquency Cases. Courts assigning counsel in RSA 169-B proceedings shall do so in accordance with standards adopted by the judicial council. Source. 2014, 215:25, eff. July 1, 2015.

RSA 604-A:2-f Appointment of Counsel for Nonpayment or Nonperformance.

604-A:2-f. Appointment of Counsel for Nonpayment or Nonperformance. I. No defendant shall be incarcerated after a final hearing for nonpayment of an assessment or nonperformance of community service unless counsel has been appointed for a defendant who is indigent or such defendant has executed a valid waiver of counsel for the final hearing. Incarceration of such defendant may occur only if the court, after having conducted an ability to pay or ability to perform final hearing at which the court has made a specific inquiry of the defendant concerning his or her financial circumstances and his or her reasons for nonpayment or nonperformance, finds that the defendant willfully failed to pay the assessment or perform the community service. II. Prior to conducting an ability to pay or ability to perform final hearing, the court shall: (a) Provide the defendant with a financial statement under oath and direct the defendant to complete the financial statement under oath; (b) Inform the defendant that he or she may be immediately incarcerated if the court finds that he or she has willfully failed to comply with the court's prior order to pay an assessment or perform community service; (c) Inform the defendant that he or she is entitled to counsel for the final hearing in which incarceration is a possible outcome and, if the defendant cannot afford one, the court will appoint one; and (d) Explain the issues to be decided at the final hearing as well as the process provided. III. The court shall appoint counsel to represent an indigent defendant at a final hearing on an ability to pay or perform held pursuant to this section if incarceration is a possible outcome of the final hearing. IV. [Repealed.] Source. 2017, 86:1, eff. Aug. 1, 2017. 2019, 346:265, eff. July 1, 2020; 346:395, eff. July 1, 2019. 2025, 141:222, V, eff. July 1, 2025.

RSA 604-A:3 Duration and Substitution of Appointments.

604-A:3. Duration and Substitution of Appointments. A defendant for whom counsel is appointed shall be represented by counsel from his initial appearance before the court at every stage of the proceedings until the entry of final judgment. If at any time after the appointment of counsel the defendant is financially able to obtain counsel or to make partial payment for representation, the court having jurisdiction of the case may terminate the appointment of counsel or direct the application of the funds available to the defendant to meet the expense of representation, as justice may require. If at any stage of the proceedings, the court having jurisdiction of the case finds that the defendant is financially unable to pay counsel whom he had retained, the court may appoint counsel to represent him, as justice may require. The court having jurisdiction of the case may, in the interest of justice, at any stage of the proceedings, substitute one appointed counsel for another. Source. 1965, 296:1, eff. July 1, 1965.

RSA 604-A:4 Compensation of Counsel.

604-A:4. Compensation of Counsel. I. Counsel appointed pursuant to this chapter to represent the defendant, at the conclusion of the representation or any segment thereof, shall be reasonably compensated therefor and shall be reimbursed for expenses reasonably incurred. A separate claim for compensation and reimbursement shall be made to each court before which the counsel represented the defendant. Each claim shall be supported by a written statement specifying the time expended, services rendered and expenses incurred while the case was pending before the court. Each court before which the counsel represented the defendant shall fix the compensation and reimbursement to be paid the counsel for services rendered and expenses incurred while representing the defendant in proceedings before the court; however, no justice shall approve any unreasonable or unnecessary charge. II. The administrative judges of the circuit and superior court may order that any invoice for fees that falls within the limits of the supreme court rules governing assigned counsel may be submitted directly to the judicial council for review and payment. III. The executive director of the judicial council may, upon review of any particular invoice, decline to process such invoice without judicial review, and may direct the attorney to go through the process outline in paragraph I. IV. Vendor invoices and certifications under this section shall be retained by the judicial council. Source. 1965, 296:1. 1969, 364:1, eff. July 1, 1969. 2025, 141:86, eff. July 1, 2025.

RSA 604-A:6 Services Other Than Counsel.

604-A:6. Services Other Than Counsel. I. In any criminal case in which counsel has been appointed to represent a defendant who is financially unable to obtain investigative, expert, or other services necessary to an adequate defense in his or her case, counsel may apply therefor to the court, and, upon finding that such services are necessary and that the defendant is financially unable to obtain them, the court shall authorize counsel to obtain the necessary services on behalf of the defendant. The court may, in the interests of justice and upon finding that timely procurement of necessary services could not await prior authorization, ratify and approve such services after they have been obtained. The court shall determine reasonable compensation for the services and direct payment upon the filing of a claim for compensation supported by an affidavit specifying the time expended, the nature of the services rendered, the expenses incurred on behalf of the defendant, and the compensation, if any, received in the same case for the same services from any other source. II. The administrative judges of the circuit and superior court may designate classes of routine, necessary services, under $1,500 per service, that are not subject to the procedure above. Invoices classified as routine and necessary may be submitted directly to the judicial council for review and payment. These invoices shall include a certification by the attorney assigned to the case that the services were necessary to representation in the matter that the attorney was assigned to. III. The executive director of the judicial council may, upon review of any particular invoice, decline to process such invoice without judicial review, and may direct the attorney to go through the process outline in paragraph I. IV. Vendor invoices and certifications under this section will be retained by the judicial council. V. Any indigent defendant appearing pro se may seek services as outlined in paragraph I. Source. 1965, 296:1. 1983, 321:1. 1989, 188:1, eff. Jan. 1, 1990. 2005, 135:1, eff. Jan. 1, 2006. 2025, 141:84, eff. July 1, 2025.

RSA 604-A:6-a Contract Services.

604-A:6-a. Contract Services. The state of New Hampshire, by the judicial council and with the approval of governor and council, may, within the limits of appropriations, contract with qualified firms or individuals in the state to provide stenographic, interpretation, translation, transportation, investigation, and psychological, psychiatric, mental health, and substance abuse evaluations and clerical services where, pursuant to RSA 604-A:6, the defendant has been found to be eligible for such services. The executive director of the judicial council shall authorize payments to such individuals and firms as provided for under this section. Source. 1991, 46:2. 1997, 351:9, eff. July 1, 1997. 2025, 141:85, eff. July 1, 2025.

RSA 604-A:7 Rules and Regulations.

604-A:7. Rules and Regulations. The supreme court, superior court, district court, and judicial branch family division shall each have the authority to establish such rules and regulations and prescribe such forms as may be deemed necessary or advisable for the performance of their respective duties hereunder. Source. 1965, 296:1, eff. July 1, 1965. 2006, 267:2, eff. June 9, 2006.

RSA 604-A:8 Payment of Expenses.

604-A:8. Payment of Expenses. I. Each claim and written statement in support thereof when approved by the court shall be forwarded to the judicial council for payment. The commissioner of administrative services may adopt rules, under RSA 541-A, in addition to the requirements of paragraph II, to carry out the provisions of this section. II. Statements submitted by counsel for payments of fees shall in each case be examined by the trial and appellate judges and certified by them as to the reasonableness of the fee requested and whether the defendant continued to be eligible for assignment of counsel during the duration of the trial. Such certificates shall be attached to the request for payment of counsel fees. Counsel must submit bills to the appropriate court for payment within 60 days of the disposition of a case unless the trial judge finds that there are extenuating circumstances. Courts shall, within 30 days of receipt, certify statements as outlined above and forward the certified statements to the judicial council for payment. Source. 1965, 296:1. 1977, 600:23. 1981, 568:66. 1985, 399:3, eff. July 1, 1985. 2002, 250:4, eff. May 17, 2002.

RSA 604-A:9 Repayment.

604-A:9. Repayment. As of July 1, 2025, all collections efforts under this section or former versions of this chapter shall be terminated. Any person subject to a court order for reimbursement may petition the court to vacate the reimbursement order. Source. 1969, 475:1. 1973, 370:24. 1981, 568:20, VI. 1983, 201:1. 1985, 342:3. 1987, 406:14-16. 1989, 345:7-10. 1991, 135:1, 2. 1992, 284:84. 1994, 288:1. 1995, 156:1-3, eff. July 1, 1995. 2019, 346:263, 264, eff. July 1, 2020. 2025, 141:218, eff. July 1, 2025.

RSA 604-A:10 Rulemaking; Records Required; Judicial Council; Commissioner of Administrative Services.

604-A:10. Rulemaking; Records Required; Judicial Council; Commissioner of Administrative Services. I. The judicial council shall keep records of the notification of eligibility and assignment of counsel as submitted by the courts of the state pursuant to supreme court order 81-5A and subsequent related orders. In addition to any other use the judicial council shall make of these records, the judicial council shall keep records including the following information and compile such information on a monthly basis: (a) The name of the courts, including the location and the type of the court. (b) The type of the case as defined by the most serious offense charged in the case, according to the following categories: (1) Homicide (2) Other felony (3) Misdemeanor (4) Juvenile (5) Other (c) Whether the case was assigned to a private attorney or a public defender. II. When a final bill has been approved for payment to a private attorney, the judicial council shall record the following information: (a) The type of case as defined in RSA 604-A:10, I(b). (b) The amount of the attorney's fee. III. The judicial council shall also compile the gross monthly cost for bills approved for payment for expenses other than counsel, including those pursuant to RSA 604-A:6. III-a. The judicial council shall report any fee schedules established to the legislature and to the supreme court. IV. [Repealed.] V. The judicial council shall adopt standards relative to appointment for juvenile counsel. Such standards shall establish training, experience, and other qualifications for attorneys to represent minors in such proceedings, and shall be developed with consideration of relevant national standards including, but not limited to, the Juvenile Justice Standards of the Institute of Judicial Administration and American Bar Association. The council shall develop the standards required by this section in consultation with the judicial branch, the New Hampshire Bar Association, New Hampshire Legal Assistance, the New Hampshire Public Defender, the Disability Rights Center of New Hampshire, and the American Civil Liberties Union of New Hampshire, and shall adopt them no later than July 1, 2022. Source. 1983, 120:4. 1985, 399:3. 1989, 345:11, 12, eff. July 1, 1989. 2002, 250:5, eff. May 17, 2002. 2014, 215:26, eff. July 1, 2015. 2021, 207:2, Pt. I, Sec. 5, eff. Jan. 1, 2022. 2025, 141:222, VI, eff. July 1, 2025; 179:2, eff. Sept. 13, 2025.

Source: New Hampshire General Court (gc.nh.gov)URL: https://gc.nh.gov/rsa/html/NHTOC/NHTOC-LIX-604-A.htmFetched: 10/20/2026