NH Legal Perspective: State law enforcement has many tools in its investigative bag

Since May and the appointment of Special Counsel Robert S. Mueller III, the investigative and prosecutorial powers of the federal government have been widely reported on. As the investigation into Russian government efforts to influence our presidential election has developed, the public has been enlightened to federal law enforcement investigative tools and tactics to gather evidence in criminal probes.

To the extent all this public discourse has piqued your interest, I have compiled a list - accompanied by a summary - of some of the investigative tools used by state, county, and local law enforcement agencies in New Hampshire when enforcing state criminal laws. Although the tools below are available in violent felony, drug and murder investigations, I have selected investigative tools often used in more detailed and complex criminal investigations in the white-collar crime context (i.e., fraud, tax and financial crimes, consumer-protection violations, crimes against the environment, perjury, public corruption, misuse of position).

First, a quick primer on our state law enforcement system. The Attorney General ("AG") is the state's chief law enforcement officer. The AG is nominated by the governor and appointed by the Executive Counsel. Among its criminal prosecutorial power, the AG's office has authority to investigate and prosecute all criminal offenses committed in the state and has exclusive jurisdiction to prosecute murder cases.

Each county has a County Attorney's Office ("CA"), which is referred to in most other states as the District Attorney's Office. The CA is elected, and, with the exception of murder cases, may investigate and prosecute essentially all other felony- and misdemeanor-level offenses committed in that county.

The CA typically handles violent crimes (assault, manslaughter, negligent homicide, sexual assault), drug crimes and property crimes (theft and all its variants). While the AG's Office often investigates those more traditional crimes, it also investigates and prosecutes white-collar crime.

In developing their cases, in addition to evidence obtained from complaining or cooperating witness testimony, state prosecutors often utilize the following tools:

1. Grand Jury Investigation. In many white-collar crime cases, state prosecutors initiate a grand jury investigation. This involves issuing subpoenas to witnesses and entities that may have testimonial evidence or documents relevant to the investigation. Grand jury proceedings are secretive, to some extent. If a witness is subpoenaed to testify, the proceeding is closed to the public. Even the witness's attorney is prohibited from entering the room, and the state must obtain a court order before allowing anyone - other than the jurors, prosecutors, and witness - into the room. In addition to testimonial evidence, prosecutors often issue subpoenaduces tecum to banks, accountants, vendors or other entities that may have records related to the investigation. These subpoenas are often served on entities that have no firsthand knowledge of any criminal wrongdoing, but are merely the custodians of records that may contain incriminating evidence. As you can imagine, responding to, and complying with, these subpoena requests is often complicated and burdensome. The stakes for not properly complying include criminal or civil contempt, fines, or, in severe instances, of the issuance of a material witness warrant, which may result in the arrest and incarceration.

2. Search Warrants. Our state constitution requires that, before it searches or seizes evidence from persons, places, or property, the government must demonstrate to an independent magistrate (typically a trial court judge) that it has probable cause to believe evidence of a certain crime will be found in the particular place to be searched. In our digital age, this also often includes searches of cellphone devices, historical cellphone records obtained from a wireless carrier (i.e., Verizon), social media accounts, or, in the context of financial crimes, a search of the target business and its devices.

3. One Party Interceptions. In New Hampshire, it is a crime to intercept (record) a conversation or interaction unless all parties involved have consented to the recording. The law, however, allows the AG, and in limited circumstances the CA, to authorize one-party interceptions (a secret recording when only one party to the interaction knows that it is being recorded). A one-party typically involves a law enforcement agent or cooperative witness agreeing to record a telephone call or face-to-face meeting with an unsuspecting party.

These are a few of the tools used in New Hampshire criminal investigations. If you or your business is under investigation by, or merely required to comply with a grand jury subpoena issued from, state or federal law enforcement or administrative agencies, it is important that you understand the process.

Patrick J. Queenan is a former assistant attorney general in the New Hampshire Department of Justice, where he prosecuted murder cases and white-collar crime. He is currently a criminal defense and business litigation attorney at Sheehan Phinney Bass & Green in Manchester.

NH Legal Perspective is a biweekly column sponsored by Sheehan Phinney Bass & Green PA. This column does not provide legal advice. We recommend that you consult an attorney for specific guidance on legal questions.