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Brennan Lenehan Iacopino & Hickey

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Iacopino Leads Criminal Defense Bar in Opposition to Felonies First Proposal

The requirement of a probable cause hearing . . . protects 100 percent of felony arrestees 100 percent of the time. Felonies First eliminates that protection and diminishes justice.

For centuries people accused of felony crimes in New Hampshire have had an automatic right to a probable cause hearing. The burden of proof at probable cause hearings, although not a high one, is on the prosecution. A bill pending before the legislature effectively eliminates that automatic right and turns the burden of proof on its head.

Brennan Lenehan’s president, Mike Iacopino, has led the state’s criminal defense bar in opposition to the “Felonies First” proposal. The proposal, authored by Hon. Tina Nadeau, Chief Justice of the New Hampshire Superior Court and backed by most of the judicial hierarchy, effectively eliminates the right of an accused citizen to have an adversarial probable cause hearing after arrest. Iacopino has testified before the legislature and authored an Op-Ed opposing the measure.

Under the “Felonies First” proposal a person accused of a felony must “challenge probable cause” by asserting “a claim that a material element of the charge is without factual basis or that the charge is legally insufficient to constitute a felony offense.” Iacopino’s Op-Ed describes how this proposal eliminates dues process. Iacopino explains:

Such burden-shifting is incongruent with the notion that the state should bear the burden of proof in criminal proceedings. Requiring an accused person to allege the absence of a factual basis is also inconsistent with the right to remain silent as guaranteed under both state and federal constitutions. Moreover, even if the accused chooses to forgo his right to remain silent at this early stage of the proceeding, the court is not required to provide a hearing. SB 124 requires only that the court “determine whether a hearing is necessary to assist the court in its determination of probable cause.” Despite claims to the contrary, SB 124 does not mandate a probable cause hearing upon request of the accused. SB 124 relegates the important historical constitutional protections afforded by probable cause hearings to a matter of convenience for a judge.

Mike will continue to fight to protect due process rights for all of New Hampshire’s citizens. You can help by urging your state representative to say NO to SB 124. Tell them that Felonies First puts due process last.

Op-Ed: https://www.nhbar.org/publications/display-news-issue.asp?id=7784

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