2020 New Mexico Statutes
Chapter 38 - Trials
Article 5 - Drawing and Empaneling Jurors
Section 38-5-1 - Qualification of jurors.

A. A person who is at least eighteen years of age, a United States citizen, a resident of New Mexico residing in the county for which a jury may be convened is eligible and may be summoned for service as a juror by the courts, unless the person is incapable of rendering jury service because of:

(1) physical or mental illness or infirmity; or

(2) undue or extreme physical or financial hardship.

B. A person who was convicted of a felony and who meets all other requirements for eligibility may be summoned for jury service if the person has successfully completed all conditions of the sentence imposed for the felony, including conditions for probation or parole.

History: 1953 Comp., § 19-1-1, enacted by Laws 1969, ch. 222, § 1; 1991, ch. 71, § 1; 2005, ch. 107, § 4; 2006, ch. 101, § 1.

Repeals and reenactments. — Laws 1969, ch. 222, § 17, repealed 19-1-1 to 19-1-16, 1953 Comp., relating to the drawing and empaneling of jurors, and enacted 38-5-1, 38-5-3 and 38-5-4 to 38-5-16 NMSA 1978.

Cross references. — For constitutional right to jury trial, see N.M. Const., art. II, § 12.

For jury trials in magistrate courts, see 35-8-1 to 35-8-5 NMSA 1978 and Rule 2-601 NMRA.

The 2006 amendment, effective May 17, 2006, added Subsection B to provide a person convicted of a felony may serve on a jury if the person has completed the sentenced probation and parole.

The 2005 amendment, effective July 1, 2005, deleted the disqualification of eligibility for jury service because of conviction of a felony; and added Subsection B to provide that a person is eligible for jury service unless the person is incapable of rendering jury service because of undue or extreme physical or financial hardship.

The 1991 amendment, effective April 1, 1991, rewrote the section which read "Any person who is a qualified elector is eligible and may be summoned for service as a juror by the district courts unless such person is incapable because of physical or mental illness or infirmity to render jury service."

Duty to protect non-English-speaking juror's right to participate in jury service. — Judges and attorneys have responsibilities in protecting a non-English-speaking juror's constitutional right under Article VII, Section 3 of the New Mexico Constitution to participate in jury service. The appellate record must demonstrate that a trial judge has made every reasonable effort to provide interpreters for non-English-speaking jurors; defense attorneys must raise the unconstitutionality of proposed dismissals of jurors for lack of fluency in English; and prosecutors representing the state must protect the rights of all non-English-speaking New Mexicans to serve on juries, both because it is their duty to do so and because an otherwise unnecessary reversal and retrial may well be the consequence of denying those rights. State v. Samora, 2013-NMSC-038.

Constitutional right to sit upon juries. — Where, at the beginning of jury selection, the trial court asked a Spanish-speaking prospective juror, who had difficulty understanding the English language, if the juror understood English well enough to proceed with jury selection without the aid of an interpreter; the juror stated that the juror had been able to follow the discussions to that point; the trial court did not make an effort to find an interpreter for the juror; at the conclusion of voir dire, the juror admitted that the juror had not been able to understand a large part of the voir dire; the trial court dismissed the juror; defendant objected on the ground that the juror had understood English well enough to serve without an interpreter during voir dire, and there was no evidence that the jury was unfair or impartial and the evidence of defendant's guilt was substantial, the dismissal of the juror violated Article VII, Section 3 of the New Mexico Constitution, but the error was not fundamental error requiring reversal of defendant's convictions. State v. Samora, 2013-NMSC-038.

Presence of defendant is not required during the jury culling process in which the judge or designee disqualifies or exempts prospective jurors pursuant to the statutory exemptions contained in this section and 38-5-11 NMSA 1978. State v. Sanders, 2000-NMSC-032, 129 N.M. 728, 13 P.3d 460.

Defendant's presence is not required during discussion of jury questionnaires which is part of the jury culling process. — In a murder trial, where defendant's counsel, without defendant's presence, and counsel for the state conferenced with the district court judge to discuss jury questionnaires, the process employed by the district court was part of the culling process at which defendant had no fundamental right to be present because culling is basically an administrative process occurring outside the presence of the jurors during which defendant can provide no special insight into the removal of jurors from the pool who are disqualified or excused on statutory grounds, unlike the process of challenging potential jurors where the defendant may be able to discern some bias or prejudice. State v. Astorga, 2016-NMCA-015, cert. denied, 2015-NMCERT-012.

Qualification of grand juror as elector. — Grand juror did not have to be a properly registered voter to be a qualified elector, for purposes of sitting on the grand jury. State v. Chama Land & Cattle Co., 1990-NMCA-129, 111 N.M. 317, 805 P.2d 86, cert. denied, 111 N.M. 262, 804 P.2d 1081.

A juror has only to meet the requirements of N.M. Const., art. VII, § 1 to be a qualified elector under this section, and therefore to be qualified to serve as a grand juror. State v. Chama Land & Cattle Co., 1990-NMCA-129, 111 N.M. 317, 805 P.2d 86, cert. denied, 111 N.M. 262, 804 P.2d 1081.

Law reviews. — For comment, "Juries - New Trial - Discovery of Juror's Disqualification or False Answer on Voir Dire as Ground for New Trial," see 7 Nat. Resources J. 415 (1967).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 47 Am. Jur. 2d Jury § 159.

Unfamiliarity with English language as affecting competency of a juror, 34 A.L.R. 194.

Former jeopardy where jury discharged because of nonresidence, 38 A.L.R. 716.

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

Right to consent to trial of criminal case before less than twelve jurors, 70 A.L.R. 279, 105 A.L.R. 1114.

Membership in secret order or organization for the suppression of crime as ground of challenge of juror, 158 A.L.R. 1361.

Right to peremptory challenges in selection of jury to try issue of former conviction, 162 A.L.R. 429.

Effect of and remedies for, exclusion of eligible class of persons from jury list in civil case, 162 A.L.R. 1422.

Governing law as to existence or character of offense for which one has been convicted in a federal court or court of another state as bearing upon disqualification to sit on jury, 175 A.L.R. 805.

Failure of juror in criminal case to disclose his previous jury service within disqualifying period as ground for reversal, 13 A.L.R.2d 1482.

Law enforcement officers as qualified jurors in criminal cases, 72 A.L.R.3d 895.

Former law enforcement officers as qualified jurors in criminal cases, 72 A.L.R.3d 958.

Validity of requirement or practice of selecting prospective jurors exclusively from list of registered voters, 80 A.L.R.3d 869.

Deafness of juror as ground for impeaching verdict, or securing new trial or reversal on appeal, 38 A.L.R.4th 1170.

Jury: visual impairment as disqualification, 48 A.L.R.4th 1154.

Propriety of substituting juror in bifurcated state trial after end of first phase and before second phase is given to jury, 89 A.L.R.4th 423.

Constitutional right to jury trial in cause of action under state unfair or deceptive trade practices law, 54 A.L.R.5th 631.

Inattention of juror from sleepiness or other cause as ground for reversal or new trial, 59 A.L.R.5th 1.

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.

Disqualification or exemption of juror for conviction of, or prosecution for, criminal offense, 75 A.L.R.5th 295.

50 C.J.S. Juries § 134.