On November 15, 2013, the NHCLU filed an amicus brief with the New Hampshire Supreme Court challenging the State's position that indigent defendants are only entitled to exercise their due process constitutional right to obtain a state-funded expert that is necessary for an adequate defense if they retain a state-funded public defender.
Under the State's position, indigent defendants who have secured private counsel are faced with the impossible choice of either (i) defending against a well-resourced prosecution without obtaining expert witnesses that are necessary to provide due process (and are provided to public defender clients), or (ii) retaining a public defender and giving up the private lawyer with whom they have a Sixth Amendment right to hire.  Only indigent defendants are forced to make this choice.  However, the New Hampshire Supreme Court has concluded that “there are some choices which the State cannot require a defendant to make, and a choice between constitutional rights is one of them.”  Opinion of the Justices, 121 N.H. 531, 539 (1981).
In its brief, the NHCLU asks the Supreme Court to reassert what its precedents and a majority of other jurisdictions have acknowledged: our legal system’s commitment to fairness and equal justice requires that indigent individuals have a right to state-funded experts that are necessary for an adequate defense regardless of whether they have a public defender, and it is fundamentally unfair to require indigent defendants—simply because they lack financial means—to choose between their due process right to receive such experts and their Sixth Amendment right to retain willing private counsel.