Section 604-A:2 - [Effective Until 1/1/2026] Appointment of CounselI. 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 in such form as designated by the unit of cost containment. If after review of the financial statement under oath and application of the rules established pursuant to RSA 604-A:10, IV 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. Notwithstanding paragraph II, the court may appoint a contract attorney or other qualified attorney in the first instance when it is in the interest of justice to do so. The court shall inform the judicial council of each case in which it makes an appointment of counsel pursuant to this paragraph and the reason for doing so, and the judicial council shall maintain records of all cases in which appointment of council pursuant to this paragraph has been made. Such records shall be maintained in such a manner as to be easily separated from appointments of counsel not made pursuant to this paragraph.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.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.Amended by 2024, 333:3, eff. 8/2/2024.Amended by 2019 , 346: 394, eff. 7/1/2019.Amended by 2015 , 21: 1, eff. 5/5/2015.Amended by 2014 , 188: 2, eff. 1/1/2015.1965, 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.
This section is set out more than once due to postponed, multiple, or conflicting amendments.