2019 New Mexico Statutes
Chapter 31 - Criminal Procedure
Article 6 - Grand Jury
Section 31-6-3 - Challenge to grand jury.

Any person held to answer for an offense by grand jury indictment, upon arraignment to the charge therein, by motion to quash the indictment stating with particularity the ground therefor, may challenge the validity of the grand jury. A failure to file such motion is a waiver of the challenge. Grounds that may be presented by such motion are limited to the following:

A. the grand jury was not selected in accordance with law;

B. a member of the grand jury returning the indictment was ineligible to serve as a juror;

C. a member of the grand jury returning the indictment was a witness or is likely to become a witness; or

D. a member of the grand jury returning the indictment was not qualified to serve due to a conflict of interest, bias, partiality or inability to follow the law.

History: 1953 Comp., § 41-5-3, enacted by Laws 1969, ch. 276, § 3; 2003, ch. 363, § 1.

Repeals. — Laws 1969, ch. 276, § 14, repealed former 41-5-3, 1953 Comp., relating to challenges to individual grand jurors.

Cross references. — For drawing and empaneling jurors, see 38-5-1 NMSA 1978.

The 2003 amendment, effective July 1, 2003, inserted "or is likely to become a witness; or" at the end of Subsection C and added Subsection D.

The effect of this section is to prohibit a grand juror from testifying before the grand jury of which he or she is a member. Defendant's contention that grand jurors were witnesses against him because the grand jury had returned two indictments against him prior to returning the present indictment, and had "witnessed" the actions of defendant which led to a subsequent contempt citation was without merit as it perverted the meaning of "witness" as used in the grand jury statutes. State v. Hogervorst, 1977-NMCA-057, 90 N.M. 580, 566 P.2d 828, cert. denied, 90 N.M. 636, 567 P.2d 485.

Challenge is not to court's jurisdiction. — An attack on the eligibility of one grand juror does not raise an issue as to the jurisdiction of the court, but goes only to the procedural requirements for returning an indictment. State v. Velasquez, 1982-NMCA-154, 99 N.M. 109, 654 P.2d 562, cert. denied, 99 N.M. 148, 655 P.2d 160.

Juror's bias not ground for attack where indictment sufficient. — Bias or prejudice on the part of an individual grand juror furnishes no ground of attack on an indictment that is sufficient on its face. State v. Laskay, 1986-NMCA-008, 103 N.M. 799, 715 P.2d 72, cert. denied, 103 N.M. 798, 715 P.2d 71.

Unless prejudice caused indictment by malice or ill will. — A challenge would not be precluded in the event that grand jurors were so prejudiced against a person that the jurors would be ineligible to serve because an indictment by jurors so prejudiced would violate their oath to indict no person through malice, hatred or ill will. State v. Laskay, 1986-NMCA-008, 103 N.M. 799, 715 P.2d 72, cert. denied, 103 N.M. 798, 715 P.2d 71.

Residence as qualification for grand jury service is question of fact. State v. Watkins, 1979-NMCA-003, 92 N.M. 470, 590 P.2d 169.

Temporary absence of person from county of residence, without the intention of abandoning that residence, will not destroy the person's qualification to serve as a grand juror. State v. Watkins, 1979-NMCA-003, 92 N.M. 470, 590 P.2d 169.

Where grand jury which heard defendant's false testimony returned indictment for perjury based on that testimony, such jurors are not witnesses under this section, nor are they presumed to be biased. State v. Watkins, 1979-NMCA-003, 92 N.M. 470, 590 P.2d 169.

Accused not present during empaneling. — It was never the practice to bring accused into court when empaneling the grand jury. Territory v. Young, 1881-NMSC-007, 2 N.M. 93.

Objections raised before plea available. — Any objections to legal qualifications of grand jurors were to be raised and presented in proper form to court before defendant entered his plea of not guilty and were not available on motion in arrest of judgment. Territory v. Armijo, 1894-NMSC-011, 7 N.M. 571, 37 P. 1117 (decided under former law).

But not after plea. — Objections to character of grand jury, or qualification of an individual member, came too late after plea to the merits. Territory v. Romero, 1883-NMSC-006, 2 N.M. 474 (decided under former law).

Effect of saving clause's absence. — The absence of a saving clause in either Laws 1969, ch. 222 or ch. 276 indicates the legislature did not intend the repealed law relative to jury selection to remain effective after July 1, 1969 and did intend that the provisions of both Laws 1969, ch. 222 and ch. 276 be complied with insofar as possible, after that date. 1969 Op. Att'y Gen. No. 69-98 (rendered under prior law).

Law reviews. — For annual survey of criminal procedure in New Mexico, see 18 N.M.L. Rev. 345 (1988).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 38 Am. Jur. 2d Grand Jury § 20 et seq.

Effect of, and remedies for, exclusion from grand jury list of eligible class or classes of persons, 52 A.L.R. 919.

Prejudice of member of grand jury against defendant as ground of attack on indictment, 88 A.L.R. 899.

Women as grand jurors, 157 A.L.R. 461.

Right to challenge personnel of grand jury, 169 A.L.R. 1169.

Women: exclusion of women from grand jury a violation of constitutional rights of accused or as ground for reversal of conviction, 9 A.L.R.2d 661.

Failure to swear or irregularity in swearing witnesses appearing before grand jury as ground for dismissal of indictment, 23 A.L.R.4th 154.

Presence of unauthorized persons during state grand jury proceedings as affecting indictment, 23 A.L.R.4th 397.

Age group underrepresentation in grand jury or petit jury venire, 62 A.L.R.4th 859.

Exclusion of women from grand or trial jury or jury panel in criminal case as violation of constitutional rights of accused or as ground for reversal of conviction - state cases, 70 A.L.R.5th 587.

Standing of criminal defendant to challenge, on constitutional grounds, discriminatory composition of federal grand jury where defendant is not member of class allegedly excluded, 68 A.L.R. Fed. 175.

38A C.J.S. Grand Juries §§ 27, 59 et seq.