2021 New Mexico Statutes
Chapter 31 - Criminal Procedure
Article 6 - Grand Jury
Section 31-6-1 - Grand jury panels; calling; qualifying.

The district judge may convene one or more grand juries at any time, without regard to court terms. A grand jury shall serve for a period of no longer than three months. The district judge shall summon and qualify as a panel for grand jury service such number of jurors as he deems necessary. Each grand jury shall be composed of twelve regular jurors and a sufficient number of alternates to insure the continuity of the inquiry and the taking of testimony. All deliberations shall be conducted by any twelve jurors, comprised of regular jurors or substituted alternates. No more than twelve jurors may deliberate. No juror may vote on an indictment unless the juror has heard all evidence presented on the charge. The district judge may discharge or excuse members of a grand jury and substitute alternate grand jurors as necessary. The names of jurors summoned for grand jury service shall be drawn from the master jury wheel of the district court for the county.

History: 1953 Comp., § 41-5-1, enacted by Laws 1969, ch. 276, § 1; 1981, ch. 262, § 1; 1983, ch. 62, § 1.

Repeals. — Laws 1969, ch. 276, § 14, repealed former 41-5-1, 1953 Comp., relating to right to challenge grand jury.

The 1983 amendment inserted "regular" in the fourth sentence, added "and a sufficient number of alternates to insure the continuity of the inquiry and the taking of testimony" at the end of the fourth sentence and inserted the fifth and sixth sentences.

Selection of a grand jury must be under the control of the district court. — The district court is the constitutionally and statutorily designated neutral entity that is assigned the responsibility for determining which grand jurors sit in any particular case to decide the question of indictment. The district court may not delegate its core statutory responsibilities over grand jury proceedings. De Leon v. Hartley, 2014-NMSC-005.

Where, after the orientation and swearing of the grand jurors, the district court transferred the process of selecting and excusing jurors to the district attorney's office without further apparent involvement by the district court; the list of grand jurors used by the district attorney's office contained notations that suggested that someone in the district attorney's office excused several grand jurors; and the district court found that there was no fraud or prejudice to defendant in the conduct of the grand jury proceeding and denied defendant's pretrial motion to quash the indictment, the district court should have quashed the indictment irrespective of whether any actual fraud or prejudice was established when the improper involvement of the district attorney in the excusal of grand jurors was brought to the attention of the district court. De Leon v. Hartley, 2014-NMSC-005.

Remedy for irregularities in the grand jury process. — When undeniable irregularities in the grand jury process are brought to the court's attention in advance of trial, a grand jury indictment resulting from that process must be quashed. De Leon v. Hartley, 2014-NMSC-005.

Indictment returned after the three-month term has expired does not deprive the court of jurisdiction. — The number of days in the term of a grand jury, being merely a matter of statute, goes not to the jurisdiction of the court, but to the manner in which the power is to be exercised. State v. Bent, 2012-NMSC-038, 289 P.3d 1225, rev'g 2011-NMCA-093, 150 N.M. 561, 263 P.3d 903.

Challenges to an indictment returned after the three-month term has expired. — Statutory challenges to an indictment that is returned after the three-month period has expired must be adjudicated before trial and before a jury issues a verdict on the offenses charged in the indictment. State v. Bent, 2012-NMSC-038, 289 P.3d 1225, rev'g 2011-NMCA-093, 150 N.M. 561, 263 P.3d 903.

Where the grand jury returned an indictment against defendant long after the three-month period of the grand jury's term had expired; the trial court denied defendant's motions to quash the indictment and for an interlocutory appeal; defendant did not file a request with the supreme court for extraordinary relief; and a jury convicted defendant of the offenses charged in the indictment, there was no adequate remedy available for defendant. State v. Bent, 2012-NMSC-038, 289 P.3d 1225, rev'g 2011-NMCA-093, 150 N.M. 561, 263 P.3d 903.

The three-month limitation on the term of a grand jury is a mandatory limitation on the grand jury's jurisdiction, because it is central to the legal constitution and empanelment of the grand jury. State v. Bent, 2011-NMCA-093, 150 N.M. 561, 263 P.3d 903, cert. granted, 2011-NMCERT-009, 269 P.3d 903, rev'd, 2012-NMSC-038, 289 P.3d 1225.

An indictment that is returned after the grand jury's three-month term has expired is void ab initio and confers no jurisdiction to try the defendant. State v. Bent, 2011-NMCA-093, 150 N.M. 561, 263 P.3d 903, cert. granted, 2011-NMCERT-009, 269 P.3d 903, rev'd, 2012-NMSC-038, 289 P.3d 1225.

An indictment returned after the grand jury's term has expired is void. — Where a grand jury was convened in October 2007; grand jurors were summoned for service in November 2007; the district judge verbally extended the grand jury's term beyond the three-month term; and the grand jury returned an indictment against defendant when it was recalled in May 2008 to hear defendant's case, the indictment was void and the district court did not have jurisdiction to try defendant. State v. Bent, 2011-NMCA-093, 150 N.M. 561, 263 P.3d 903, cert. granted, 2011-NMCERT-009, 269 P.3d 903, rev'd, 2012-NMSC-038, 289 P.3d 1225.

Report not a judgment. -- The report of a grand jury convened to consider petitions filed by plaintiff alleging crimes of which plaintiff was the victim is not a final, appealable order. McKenzie v. Fifth Judicial Dist. Ct., 1988-NMCA-085, 107 N.M. 778, 765 P.2d 194, cert. denied, 107 N.M. 785, 765 P, 3d 758

Directory nature of section. — This section and 31-6-2 NMSA 1978 are merely directory, not mandatory. State v. Apodaca, 1987-NMCA-033, 105 N.M. 650, 735 P.2d 1156, cert. denied, 105 N.M. 618, 735 P.2d 535, overruled on other grounds by State v. Garcia, 1990-NMCA-065, 110 N.M. 419, 796 P.2d 1115, cert. denied, 110 N.M. 282, 795 P.2d 87.

Substitution of grand jurors by the court clerk is proper where he acts pursuant to a standing order of the district judge, so long as such an order does not amount to an abuse of discretion. State v. Gilbert, 1982-NMSC-095, 98 N.M. 530, 650 P.2d 814.

Effect of grand jury no bill. — A grand jury no bill does not prevent the district attorney from either resubmitting a matter to the grand jury or charging a defendant by information; this result is reached because of the absence of limitation upon the district attorney's authority as prosecutor. State v. Chavez, 1979-NMCA-075, 93 N.M. 270, 599 P.2d 1067, cert. denied, 93 N.M. 172, 598 P.2d 215.

Length of session governed by court. — The determination as to when grand jury had completed the business before them rested with the court. State v. Raulie, 1930-NMSC-074, 35 N.M. 135, 290 P. 789.

When court may refuse to present matters to grand jury. — A district court to which an otherwise valid citizen petition for grand jury is presented possesses the discretion to determine whether the matters stated in the petition are reasonably within the lawful scope of grand jury inquiry. Only where the petition clearly seeks to involve a grand jury in matters beyond its purview may the court refuse to present those matters to a grand jury or to convene a grand jury where no regularly sitting grand jury is available. 1982 Op. Att'y Gen. No. 82-14.

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 article, "The Grand Jury: True Tribunal of the People or Administrative Agency of the Prosecutor?" see 2 N.M.L. Rev. 141 (1972).

For comment, "The Use of an Information Following the Return of a Grand Jury No Bill: State v. Joe Nestor Chavez," see 10 N.M.L. Rev. 217 (1979-80).

For article, "Survey of New Mexico Law, 1979-80: Criminal Law and Procedure," see 11 N.M.L. Rev. 85 (1981).

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

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 § 7 et seq.

Misconduct of officers in selection or summoning of jurors or grand jurors as contempt of court, 7 A.L.R. 345.

Matters within investigating powers of grand jury, 22 A.L.R. 1356, 106 A.L.R. 1383, 120 A.L.R. 437.

Power of grand jury to contract, 26 A.L.R. 605.

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

Constitutional or statutory changes affecting grand jury on substituting information for indictment as an ex post facto law, 53 A.L.R. 716.

Quo warranto to test right to serve as grand or petit juror, 91 A.L.R. 1009.

Communicating with grand jury or member thereof as a criminal offense, 112 A.L.R. 319.

Contemporaneous existence on functioning of two or more grand juries, 121 A.L.R. 814.

Eligibility of women as jurors, 157 A.L.R. 461.

Exclusion of women as violation of constitutional rights of accused or as ground for reversal of conviction, 9 A.L.R.2d 661.

Attorneys: exclusion from jury list in criminal cases, 32 A.L.R.2d 890.

Jurisdiction or power of grand jury after expiration of term of court for which organized, 75 A.L.R.2d 544.

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

Validity and construction of statute authorizing grand jury to submit report concerning public servant's noncriminal misconduct, 63 A.L.R.3d 586.

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 enactment requiring juror to be an elector or voter or have qualifications thereof, 78 A.L.R.3d 1147.

Validity of indictment as affected by substitution or addition of grand jurors after commencement of investigation, 2 A.L.R.4th 980.

Limitations on state prosecuting attorney's discretion to initiate prosecution by indictment or by information, 44 A.L.R.4th 401.

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.

Purposeful inclusion of Negroes in grand or petit jury as unconstitutional discrimination, 4 A.L.R. Fed. 449.

Civil liability of witness in action under 42 USCS § 1983 for deprivation of civil rights, based on testimony given at pretrial criminal proceeding, 94 A.L.R. Fed. 892.

38A C.J.S. Grand Juries §§ 6, 7, 8, 11, 14 et seq., 20 et seq.