2019 New Mexico Statutes
Chapter 31 - Criminal Procedure
Article 6 - Grand Jury
Section 31-6-8 - Record of testimony.

All proceedings in the grand jury room, with the exception of the deliberations of the grand jury, shall be reported verbatim and the notes or transcriptions thereof certified by the court reporter or stenographer making them, with the notes or transcriptions then deposited with the clerk or other officer of the district court as directed by the district judge. Upon order of the district court in cases where an indictment is returned, the notes may be caused to be transcribed and certified by the stenographer or court reporter who made them, if available, or by another person qualified and competent to transcribe them accurately. Copies of documentary evidence or a summary thereof if directed by the district court exhibited to the grand jury shall be made a part of the record. In cases where an indictment is not returned, the notes or transcriptions shall be destroyed unless ordered by the district judge to be preserved for good cause shown, including but not limited to the prosecution of a witness for perjury.

History: 1953 Comp., § 41-5-8, enacted by Laws 1969, ch. 276, § 8; 1979, ch. 337, § 6; 1983, ch. 62, § 2.

Repeals. — Laws 1969, ch. 276, § 14, repealed former 41-5-8, 1953 Comp., relating to the court's appointment of the foreman of the grand jury.

The 1983 amendment inserted "good cause shown, including but not limited to" in the last sentence.

Purpose of recording requirement. — The recording requirement of this section serves a number of purposes. The defendant has an opportunity to impeach the witness at trial if there is any inconsistency between grand jury testimony and trial testimony. Prosecutorial abuses of the grand jury system are restrained, and the prosecution can support its case at trial. State v. Velasquez, 1982-NMCA-154, 99 N.M. 109, 654 P.2d 562, cert. denied, 99 N.M. 148, 655 P.2d 160.

Absent prejudice, failure to record not grounds for dismissal. — In the absence of actual prejudice, there is no statutory nor constitutional ground for a dismissal of the indictment by virtue of a failure to record the grand jury proceeding. State v. Bigler, 1982-NMCA-136, 98 N.M. 732, 652 P.2d 754, cert. denied, 98 N.M. 762, 652 P.2d 1213.

Advisement of elements of crime charged. — The practice of simply providing the grand jury with a written manual containing uniform jury instructions, and not indicating on the record that the jury has been at least referred to the appropriate sections of the manual for each crime listed on the indictments, does not comply with Section 31-6-10 NMSA 1978, Rule 5-506B NMRA, or UJI 14-8001 NMRA. State v. Ulibarri, 1999-NMCA-142, 128 N.M. 546, 994 P.2d 1164, aff'd, 2000-NMSC-007, 128 N.M. 686, 997 P.2d 818.

Defendant entitled to inspect record at time of trial. — A defendant, at the trial of a criminal action, was entitled to inspect the grand jury testimony of the state's witness. State v. Morgan, 1960-NMSC-087, 67 N.M. 287, 354 P.2d 1002.

Examine portion of testimony after trial. — Once the witness has testified at the criminal trial about that which he testified before the grand jury, the accused is entitled to an order permitting examination of that portion of the witness's grand jury testimony relating to the crime for which defendant is charged. The witness may be cross-examined concerning that testimony. If otherwise, an accused is denied the right to confront the witnesses against him. State v. Sparks, 1973-NMCA-108, 85 N.M. 429, 512 P.2d 1265.

Not entitled to testimony in advance of trial. — Accused was not entitled to transcript of testimony of all witnesses who testified before grand jury with respect to criminal charge out of which indictments against him arose, in advance of trial, in the absence of showing of any particularized need. State v. Tackett, 1967-NMSC-207, 78 N.M. 450, 432 P.2d 415, cert. denied, 390 U.S. 1026, 88 S. Ct. 1414, 20 L. Ed. 2d 283 (1968).

Review of minutes by trial court harmless error. — Reading and review of grand jury minutes by trial court, although improper, was harmless error since such review was not the basis for allegedly erroneous ruling. State v. Elam, 1974-NMCA-075, 86 N.M. 595, 526 P.2d 189, cert. denied, 86 N.M. 593, 526 P.2d 187.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 38 Am. Jur. 2d Grand Jury § 35.

Libel and slander: proceedings, presentments, investigations, and reports of grand jury as privileged, 48 A.L.R.2d 716.

Accused's right to inspection of minutes of state grand jury, 20 A.L.R.3d 7.

Discovery, in civil proceeding, of records of criminal investigation by state grand jury, 69 A.L.R.4th 298.

38A C.J.S. Grand Juries §§ 111, 171 et seq.