2021 New Mexico Statutes
Chapter 31 - Criminal Procedure
Article 16 - Defense of Indigents
Section 31-16-3 - Right to representation.

A. A needy person who is being detained by a law enforcement officer, or who is under formal charge of having committed, or is being detained under a conviction of, a serious crime, is entitled to be represented by an attorney to the same extent as a person having his own counsel and to be provided with the necessary services and facilities of representation, including investigation and other preparation. The attorney, services and facilities and expenses and court costs shall be provided at public expense for needy persons.

B. A needy person entitled to representation by an attorney under Subsection A is entitled to be:

(1) counseled and defended at all stages of the matter beginning with the earliest time when a person providing his own counsel would be entitled to be represented by an attorney;

(2) represented in any appeal or review proceedings; and

(3) represented in any other postconviction proceeding that the attorney or the needy person considers appropriate unless the court in which the proceeding is brought determines that it is not a proceeding that a reasonable person with adequate means would be willing to bring at his own expense.

C. A needy person's right to a benefit under this section is unaffected by his having provided a similar benefit at his own expense, or by his having waived it, at an earlier stage.

History: 1953 Comp., § 41-22-3, enacted by Laws 1968, ch. 69, § 60.

Legislative intent. — The legislature did not intend current implementation of the Indigent Defense Act to come from any other source of funds than the public defender department. State v. Brown, 2004-NMCA-037, 135 N.M. 291, 87 P.3d 1073, cert. granted, 135 N.M. 321, 88 P.3d 263, rev'd, 2006-NMSC-023, 139 N.M. 466, 134 P.3d 753.

Right to basic tools of an adequate defense. — Funding for expert witnesses should extend to those indigent defendants represented by pro bono counsel, in addition to those represented by the public defender department. State v. Brown, 2006-NMSC-023, 139 N.M. 466, 134 P.3d 753, rev'g 2004-NMCA-037, 135 N.M. 291, 87 P.3d 1073.

Constitution grants accused right to representation. — New Mexico Const., art. II, § 14, gives the accused the right to be defended by counsel. When the offense with which the defendant is charged is punishable by imprisonment in the penitentiary, the court is required to assign counsel "if the prisoner has not the financial means to procure counsel." State v. Anaya, 1966-NMSC-144, 76 N.M. 572, 417 P.2d 58.

Absent waiver, pauper charged with crime entitled to counsel. — Absent competent and intelligent waiver, a person charged with crime in a state court who is a pauper and unable to employ counsel is entitled to have an attorney appointed to defend him. State v. Dalrymple, 1965-NMSC-124, 75 N.M. 514, 407 P.2d 356.

Showing of indigency required. — A showing of an accused's indigency is a prerequisite to the right of court-appointed counsel. State v. Powers, 1965-NMSC-046, 75 N.M. 141, 401 P.2d 775.

Court entitled to make defendant show need. — A showing of an accused's indigency is a prerequisite to the right of a court-appointed counsel and it is proper for the trial court to require the defendant to make a reasonable showing that he is unable to employ counsel. State ex rel. Peters v. McIntosh, 1969-NMSC-103, 80 N.M. 496, 458 P.2d 222.

Court must make sufficient inquiry. — When defendant makes a reasonable showing of indigency in support of his request for court-appointed counsel, the trial court has a duty to inquire into the facts claimed by defendant. This does not require an independent inquiry by the court. It does require sufficient questioning by the court to enable the court either to decide the question of indigency at that time or to direct that defendant is to report further to the court on the question of obtaining counsel. State v. Anaya, 1966-NMSC-144, 76 N.M. 572, 417 P.2d 58.

When a defendant makes a reasonable showing of indigency, the trial court has a duty to inquire into the facts relied upon by the defendant. State v. Watchman, 1991-NMCA-010, 111 N.M. 727, 809 P.2d 641, cert. denied, 111 N.M. 529, 807 P.2d 227, overruled on other grounds by State v. Hosteen, 1996-NMCA-084, 122 N.M. 228, 923 P.2d 595.

Burden of proceeding rests first upon defendant. — It is proper for the trial court to require defendant to make a reasonable showing that he is unable to employ counsel. Depending on the facts, more than one inquiry may be necessary. State v. Anaya, 1966-NMSC-144, 76 N.M. 572, 417 P.2d 58.

Doubts resolved in accused's favor. — Although the courts recognize the relative concepts of indigency and that this determination should be made at the trial court level, the opinions indicate that doubts as to indigency should be resolved in favor of the accused. State ex rel. Peters v. McIntosh, 1969-NMSC-103, 80 N.M. 496, 458 P.2d 222.

Effect of refusal to fill out certificate of indigency. — Defendant was not entitled to any appointed counsel because he refused to fill out, under oath, a certificate of indigency showing his income, and thus there was no showing that he was a needy person. State v. Pina, 1977-NMCA-020, 90 N.M. 181, 561 P.2d 43.

No counsel provided prior to claim of indigency. — Defendant does have a right to be represented by counsel, but the trial court has no obligation to provide defendant with counsel prior to any claim of indigency. State v. Deats, 1971-NMCA-089, 82 N.M. 711, 487 P.2d 139.

Attorney provided before preliminary hearing. — This section would provide an attorney for a needy person who is being detained by a law enforcement officer, and this could be before the preliminary hearing. State ex rel. Peters v. McIntosh, 1969-NMSC-103, 80 N.M. 496, 458 P.2d 222.

Absent waiver, preliminary hearing without counsel present invalid. — The determination of the question of indigency must often be made before the otherwise normal appearance of the accused before the district court. To hold a preliminary hearing without counsel present, unless the right to counsel has been competently, intelligently and voluntarily waived, vitiates the hearing. State ex rel. Peters v. McIntosh, 1969-NMSC-103, 80 N.M. 496, 458 P.2d 222.

Claim of inadequate representation by court-appointed counsel requires a showing that the proceedings leading to his conviction were a sham, farce or mockery. State v. Salazar, 1970-NMCA-056, 81 N.M. 512, 469 P.2d 157.

Representation must be more than pro forma appearance. — The representation to which a defendant is entitled is something more than a pro forma appearance. State v. Dalrymple, 1965-NMSC-124, 75 N.M. 514, 407 P.2d 356.

Appointment of counsel lies within court's discretion. — An indigent defendant may not compel the court to appoint such counsel as defendant may choose. Such appointment lies within the sound discretion of the trial court. Likewise, whether the dissatisfaction of an indigent accused with his court-appointed counsel warrants discharge of that counsel and appointment of new counsel is for the trial court, in its discretion, to decide. State v. Salazar, 1970-NMCA-056, 81 N.M. 512, 469 P.2d 157.

Indigent Defense Act does not provide for payment of advances. State v. Frazier, 1973-NMCA-127, 85 N.M. 545, 514 P.2d 302.

Motion for advancement of funds for investigator properly denied. — Defendant's motion for a prior advancement of funds for a professional investigator was properly denied as an expenditure is clearly not required in every case and need not be provided unless the necessity is shown. State v. Frazier, 1973-NMCA-127, 85 N.M. 545, 514 P.2d 302.

Free polygraph examination refused to "indigent". — Where defendant sought by motion an order committing the state to pay for a polygraph examination before the examination was conducted, alleging that defendant was indigent, thus presumably invoking the provisions of the Indigent Defense Act, but although trial counsel was court-appointed the only reference to indigency was in defendant's various motions, not in orders of the court, and also appearing in defendant's motions were allegations that defendant had employment and could return to that employment if released on bail, the record did not support the claim that defendant was indigent when he sought a free polygraph examination and thus this subsection did not apply. State v. Carrillo, 1975-NMCA-103, 88 N.M. 236, 539 P.2d 626.

Uncontested motion for determination of indigency. — When a defendant's motion for determination of indigency is uncontested, the better procedure in such cases is for the trial court to either grant the motion or to expressly indicate the basis for its denial. State v. Watchman, 1991-NMCA-010, 111 N.M. 727, 809 P.2d 641, cert. denied, 111 N.M. 529, 807 P.2d 227, overruled on other grounds by State v. Hosteen, 1996-NMCA-084, 122 N.M. 228, 923 P.2d 595.

State must afford indigents record of proceedings. — It is not a requirement that a certified copy of a court reporter's notes of the proceedings be always furnished but that the state must afford indigents a record of sufficient completeness to permit proper consideration of their claims and a tape recording of preliminary examination proceedings in a magistrate's court is sufficient. State ex rel. Moreno v. Floyd, 1973-NMSC-117, 85 N.M. 699, 516 P.2d 670.

Appointment of additional attorneys. — Where two or more defendants were jointly charged with a felony, the language of former 41-11-2, 1953 Comp., did not require any construction denying to a court the power to appoint attorneys for each jointly charged indigent defendant as the circumstances should appear. Indeed, if a prejudicial conflict of interest arose or if the number of defendants being represented and divergence in defenses would reduce the attorneys' effectiveness the court was required to appoint additional attorneys. 1966 Op. Att'y Gen. No. 66-27.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 7 Am. Jur. 2d Attorneys § 228; 20 Am. Jur. 2d Courts § 44 et seq.; 21A Am. Jur. 2d Criminal Law § 1197 et seq.

Constitutional guaranty of right to appear by counsel as applicable to misdemeanor case, 42 A.L.R. 1157.

Brevity of time between assignment of counsel and trial as affecting question whether accused is denied right to assistance of counsel, 84 A.L.R. 544.

Right of indigent defendant in criminal case to aid of state as regards new trial or appeal, 100 A.L.R. 321, 55 A.L.R.2d 1072.

Relief in habeas corpus for violation of accused's right to assistance of counsel, 146 A.L.R. 369.

Duty of court when appointing counsel for defendant to name attorney other than one employed by, or appointed for, a codefendant, 148 A.L.R. 183.

Plea of guilty without advice of counsel, 149 A.L.R. 1403.

Right of defendant in criminal case to discharge of, or substitution of other counsel for, attorney appointed by court to represent him, 157 A.L.R. 1225.

Right to aid of counsel in application or hearing for habeas corpus, 162 A.L.R. 922.

Right to notice and hearing before revocation of suspension of sentence, parole, conditional pardon, or probation, 29 A.L.R.2d 1074.

Validity and construction of statutes providing for psychiatric examination of accused to determine mental condition, 32 A.L.R.2d 434.

New trial or appeal, right of indigent defendant in criminal case to aid of state as regards, 55 A.L.R.2d 1072.

Counsel's right in criminal prosecution to argue law or to read lawbooks to the jury, 67 A.L.R.2d 245.

Psychiatrist, psychologist, hypnotist or similar practitioner, counsel's right, in consulting with accused as client, to be accompanied by, 72 A.L.R.2d 1120.

Calling accused's counsel as a prosecution witness as improper deprivation of right to counsel, 88 A.L.R.2d 796.

Constitutionally protected right of indigent accused to appointment of counsel in state court prosecution, 93 A.L.R.2d 747.

Accused's right to assistance of counsel at or prior to arraignment, 5 A.L.R.3d 1269.

Scope and extent, and remedy or sanctions for infringement, of accused's right to communicate with his attorney, 5 A.L.R.3d 1360.

Propriety and prejudicial effect of counsel's representing defendant in criminal case notwithstanding counsel's representation or former representation of prosecution witness, 27 A.L.R.3d 1431.

Circumstance giving rise to conflict of interest between or among criminal codefendants precluding representation by same counsel, 34 A.L.R.3d 470.

Attorney's refusal to accept appointment to defend indigent, or to proceed in such defense, as contempt, 36 A.L.R.3d 1221.

Right to assistance of counsel at proceedings to revoke probation, 44 A.L.R.3d 306.

Right to counsel in contempt proceedings, 52 A.L.R.3d 1002.

Accused's right to choose particular counsel appointed to assist him, 66 A.L.R.3d 996.

Right of indigent criminal defendant to polygraph test at public expense, 11 A.L.R.4th 733.

Relief available for violation of right to counsel at sentencing in state criminal trial, 65 A.L.R.4th 183.

Right of indigent defendant in state criminal case to assistance of ballistics experts, 71 A.L.R.4th 638.

Right of indigent defendant in state criminal case to assistance of fingerprint expert, 72 A.L.R.4th 874.

Right of indigent defendant in state criminal case to assistance of expert in social attitudes, 74 A.L.R.4th 330.

Right of indigent defendant in state criminal case to assistance of chemist, toxicologist, technician, narcotics expert, or similar nonmedical specialist in substance analysis, 74 A.L.R.4th 388.

Criminal defendant's representation by person not licensed to practice law as violation of right to counsel, 19 A.L.R.5th 351.

Right to appointment of counsel in contempt proceedings, 32 A.L.R.5th 31.

Right of indigent defendant in state criminal prosecution to ex parte in camera hearing on request for state-funded expert witness, 83 A.L.R.5th 541.

Accused's right, under 28 USCS § 1654, and similar predecessor statutes, to represent himself in federal criminal proceeding, 27 A.L.R. Fed. 485.

What constitutes assertion of right to counsel following Miranda warnings - federal cases, 80 A.L.R. Fed. 622.

22 C.J.S. Criminal Law §§ 277, 278, 292.