¶ Updates to New Hampshire Bail Statute and Magistrate Process (2025)
¶ Key Changes Effective January 1, 2025
- Defendants arrested for specific serious offenses must now appear before a magistrate or court within 24 hours of arrest, even on weekends and holidays.
- Magistrates, trained in making bail determinations, now handle certain cases previously managed by bail commissioners.
¶ Offenses Requiring Magistrate Appearance
Defendants charged with the following crimes must be presented to a magistrate for a bail determination within 24 hours:
- Homicide (RSA 630)
- First Degree Assault (RSA 631:1)
- Second Degree Assault (RSA 631:2)
- Felony-Level Domestic Violence (RSA 631:2-b)
- Aggravated Felonious Sexual Assault (RSA 632-A:2)
- Felonious Sexual Assault (RSA 632-A:3)
- Kidnapping (RSA 633:1)
- Felony-Level Stalking (RSA 633:3-a, VI(a))
- Trafficking in Persons (RSA 633:7)
- Robbery (RSA 636:1, III)
- Possession, Manufacture, or Distribution of Child Sexual Abuse Images (RSA 649-A)
- Computer Pornography and Child Exploitation (RSA 649-B)
¶ Weekend and Holiday Procedures
- Magistrates are available telephonically from 9:00 AM to 1:00 PM every weekend and holiday.
- The arresting agency must complete and send a Weekend/Holiday Magistrate Bail Determination Cover Sheet to the designated magistrate email.
- Calls occur at scheduled times based on the county where the defendant was arrested and is held pending a hearing.
¶ Bail Commissioner vs. Magistrate
- The changes to the law have not abolished the necessity for bail commissioners, it only ensures that with certain offenses a defendant has a hearing with a qualified magistrate hired by the New Hampshire Courts rather than a contracted Justice of the Peace assigned as a bail commissioner.
- For all other offenses, bail commissioners are authorized to make determinations on bail. Again, the magistrate process only applies to the 12 offenses identified above.
- Please note that for bail commissioners, there is no longer any need to collect the bail fee directly from the defendant at the time bail is set. This fee is now $60 and is collected directly by the court at a later time, the bail commissioner will be paid directly as a contracted vendor of the courts.
¶ General Process
- Arrest: Defendant is arrested for one of the listed offenses.
- Transport: Typically, the defendant will be transported to a holding facility such as a county jail equipped to conduct telephonic magistrate hearings.
- Notification: The holding facility and/or arresting agency notifies the magistrate via email and includes necessary documentation. (See “Necessary Documentation for Magistrate Bail Hearings” below)
- Telephonic Appearance: Both a representative from the arresting agency and defendant participate in a telephonic bail determination. Officers tasked with appearing telephonically should be familiar with, and prepared to make any necessary arguments, relative to New Hampshire RSA 597:2.
- Bail Order: Magistrate issues a bail decision and sends related documents to involved parties.
- Transport: Defendants not released are held at the appropriate facility.
- Court Appearance: If the defendant if held, a hearing will still be required before the appropriate court for an arraignment and further determination of bail set by a Judge on the next available business date for the court. A probable cause statement which fulfills the requirements of Gerstein V. Pugh may be required, unless the defendant was arrested on a warrant previously issued by a Judge.
¶ Necessary Documentation for Magistrate Bail Hearings
When preparing for a magistrate hearing, the following documentation is critical to ensure a smooth and efficient process:
¶ Essential Forms
Weekend/Holiday Magistrate Bail Determination Cover Sheet
This form is used to notify the magistrate of the need for a bail determination during weekends or holidays.
Download the Cover Sheet
What You Need to Know Form
This document provides defendants with important information about their rights and responsibilities regarding bail.
Download the Information Form
Law Enforcement Notice to Defendant of Right to Bail
This form is used to inform defendants of their right to bail and must be provided during the process.
Download the Notice
¶ Additional Notes
- Please ensure that all forms are completed accurately and submitted promptly according to the established procedures.
- Officers preparing documents for a magistrate hearing should be well-versed in the details of the case, including charges, aggravating factors, and prior bail violations.
- A probable cause statement is not required, but will prove to be extremely helpful if an officer is assigned to conduct the magistrate hearing and was not involved in the arrest or investigation leading the arrest of a defendant.
¶ Sample Magistrate Flowchart
¶ Tips for Crafting a Strong Bail Argument under NH RSA 597:2
When presenting a bail argument, it is crucial to align your statements with the requirements set forth under NH RSA 597:2. Here are some tips to effectively advocate for appropriate bail conditions:
¶ 1. Understand the Bail Criteria
NH RSA 597:2 outlines the factors a magistrate or court must consider:
- Safety of the Public or Defendant: Assess the potential danger posed by the defendant’s release.
- Likelihood of Appearance: Evaluate whether the defendant is likely to appear at future court dates based on their history and circumstances.
¶ 2. Highlight Aggravating or Mitigating Circumstances
- Aggravating Factors: Previous failures to appear, nature of the offense, prior convictions, or violations of bail conditions.
- Mitigating Factors: Lack of criminal history, community ties, stable employment, or cooperation during arrest.
¶ 3. Address Specific Risks
- For defendants with prior bail violations, emphasize the rebuttable presumption against release.
- If the defendant poses a flight risk, provide evidence (e.g., past failures to appear, lack of local ties).
¶ 4. Request Appropriate Bail Conditions
- Preventive detention for severe cases where public safety is at risk.
- Financial bail or conditions like electronic monitoring for defendants at moderate risk.
- Personal recognizance with conditions for low-risk defendants.
¶ 5. Use Clear and Concise Arguments
- Avoid overloading with irrelevant details. Focus on statutory requirements and how the defendant’s circumstances meet or fail to meet them.
- Reference prior court decisions or similar cases for guidance.
¶ 6. Leverage Probable Cause and Complaint Information
- Use the probable cause statement to substantiate claims about the seriousness of the offense or likelihood of reoffense.
¶ 7. Collaborate with Stakeholders
- Consult with the prosecutor to ensure alignment on bail recommendations and to strengthen your position.
- Be prepared to address concerns raised by the defense attorney or the magistrate.
¶ 8. Prepare for Questions
- Anticipate inquiries about alternative conditions, potential risks of release, or inconsistencies in your argument.
¶ Sample Argument Outline:
- Introduction: State the defendant’s name, charges, and requested bail conditions.
- Public Safety: Highlight risks to victims, the community, or the defendant.
- Likelihood of Appearance: Provide evidence for or against their reliability to appear.
- Bail Request: Clearly articulate the type and amount of bail, as well as any conditions.
By structuring your argument thoughtfully and referencing the requirements of NH RSA 597:2, you can advocate effectively for a bail decision that balances public safety, judicial fairness, and procedural compliance.