2021 New Mexico Statutes
Chapter 31 - Criminal Procedure
Article 6 - Grand Jury
Section 31-6-12 - Subpoena powers; notice to witnesses.

A. The grand jury has power to order the attendance of witnesses before it, to cause the production of all public and private records or other evidence relevant to its inquiry and to enforce such power by subpoena issued on its own authority through the district court convening the grand jury and executed by any public officer charged with the execution of legal process of the district court; provided that all subpoenaed witnesses shall be given a minimum of thirty-six hours' notice unless a shorter period is specifically approved for each witness by a judge of the district court.

B. The target of the investigation shall not be subpoenaed except where it is found by the prosecuting attorney to be essential to the investigation. If the target and his attorney, if he has one, sign a document stating that the target will assert the fifth amendment, he shall be excused from testifying on those matters as to which the district judge determines he has a valid fifth-amendment privilege.

C. Subpoenas directed to witnesses shall be returnable only when the grand jury is sitting.

History: 1953 Comp., § 41-5-12, enacted by Laws 1969, ch. 276, § 12; 1975, ch. 15, § 1; 1979, ch. 337, § 9.

Repeals. — Laws 1969, ch. 276, § 14, repealed former 41-5-12, 1953 Comp., relating to the charge and instructions given to the grand jury by the court.

Grand jury can issue subpoena, despite court's lack of jurisdiction. — Where no statute confers jurisdiction upon the district court to order the production of handwriting exemplars, a grand jury could issue a subpoena for the exemplars and the district court could enforce the subpoena. Sanchez v. Attorney Gen., 1979-NMCA-081, 93 N.M. 210, 598 P.2d 1170.

Grand jury investigation satisfies the "pending judicial action" requirement. — Where defendant was charged with traveling in interstate commerce for the purpose of engaging in illicit sexual conduct with a person under eighteen years of age, among other offenses, and where defendant filed a motion to suppress evidence, arguing that a grand jury subpoena duces tecum, issued to defendant's cell phone carrier requesting all known information relating to defendant's cell phone number, was unlawful under New Mexico law, it was held that although judicial subpoenas issued unilaterally by the deputy district attorney in the absence of a pending judicial action are unlawful, the subpoena in this case was issued by the grand jury after the presentment of evidence. A pending court case or grand jury investigation satisfies the "pending judicial action" requirement, and pre-indictment subpoenas are routinely issued in connection with grand jury proceedings under this section. United States v. Streett, 363 F. Supp.3d 1212 (D. N.M. 2018).

Subdivision [Subparagraph] A applies to target. — The provision of Subdivision [Subparagraph] A of this section, "that all subpoenaed witnesses shall be given a minimum of 36 hours' notice unless a shorter period is specifically approved for each witness by a judge of the district court," applies to a target, whether or not the target has been subpoenaed. Rogers v. State, 1980-NMCA-034, 94 N.M. 218, 608 P.2d 530.

Target defendant. — Defendant could not have been designated as a target defendant for a crime which had not yet been committed. State v. Albin, 1986-NMCA-046, 104 N.M. 315, 720 P.2d 1256, cert. denied, 104 N.M. 246, 719 P.2d 1267, overruled on other grounds by State v. Benavidez, 1999 NMCA 53, 127 N.M. 189, 979 P.2d 234.

Law reviews. — For annual survey of New Mexico law relating to criminal procedure, see 12 N.M.L. Rev. 271 (1982).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 38A C.J.S. Grand Juries §§ 98, 101, 112 et seq.