2021 New Mexico Statutes
Chapter 31 - Criminal Procedure
Article 6 - Grand Jury
Section 31-6-10 - Requirement for indictment; number of jurors concurring.

Before the grand jury may vote an indictment charging an offense against the laws of the state, it must be satisfied from the lawful evidence before it that an offense against the laws has been committed and that there is probable cause to accuse by indictment the person named, of the commission of the offense so that he may be brought to trial therefor. In the absence of an indictment against a person holding public office or a presentment for the removal of a local elected officer, the grand jury shall not denigrate that person's moral fitness to hold public office. Eight jurors must concur to return an indictment.

History: 1953 Comp., § 41-5-10, enacted by Laws 1969, ch. 276, § 10; 1979, ch. 337, § 7.

Repeals. — Laws 1969, ch. 276, § 14, repealed former 41-5-10, 1953 Comp., relating to the oath administered to grand jurors.

Cross references. — For number of jurors necessary to concur in finding indictment, see N.M. Const., art. II, § 14.

Withdrawal of charges from the grand jury. — Where, during a grand jury proceeding, the prosecutor initially withdrew three charges of contributing to the delinquency of a minor against the defendant and later gave the grand jurors the option to consider any of those charges which resulted in the grand jury finding probable cause for all three charges, the inclusion of the three withdrawn charges in the indictment was proper. State v. Dietrich, 2009-NMCA-031, 145 N.M. 733, 204 P.3d 748, cert. denied, 2009-NMCERT-002, 145 N.M. 704, 204 P.3d 29, overruled in part by State v. Marquez, 2021-NMCA-046.

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 31-6-8 NMSA 1978, Rule 5-506(B) 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.

But rule does not apply to defenses. — The rule requiring instruction to the grand jury on the essential elements of the crime charged does not apply to defenses. State v. Augustin M., 2003-NMCA-065, 133 N.M. 636, 68 P.3d 182, cert. quashed, 2004-NMCERT-002, 135 N.M. 170, 86 P.3d 48.

Sufficiency of evidence not subject to judicial review. — The statutes concerning the evidence adduced before grand juries do not provide for judicial review of the sufficiency of the evidence considered by the grand jury. State v. Paul, 1971-NMCA-040, 82 N.M. 619, 485 P.2d 375, cert. denied, 82 N.M. 601, 485 P.2d 357.

Evidence establishing probable cause not subject to review. — The sufficiency of the evidence presented to a grand jury to establish probable cause for an indictment is not subject to judicial review. State v. Elam, 1974-NMCA-075, 86 N.M. 595, 526 P.2d 189, cert. denied, 86 N.M. 593, 526 P.2d 187.

Massive amount of evidence found to support grand jury's finding of probable cause to accuse. State v. Ballinger, 1983-NMCA-034, 99 N.M. 707, 663 P.2d 366, rev'd on other grounds, 1984-NMSC-003, 100 N.M. 583, 673 P.2d 1316.

Law reviews. — 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).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 41 Am. Jur. 2d Indictments and Informations § 26 et seq.

What is "infamous" offense within constitutional or statutory provision in relation to presentment or indictment by grand jury, 24 A.L.R. 1002.

Quashing indictment for lack or insufficiency of evidence before grand jury, 59 A.L.R. 567.

Grand jury's failure or refusal to find indictment upon investigation as affecting right to file information, 120 A.L.R. 713.

Absence of grand jurors during hearing as affecting indictment, 156 A.L.R. 248.

Waiver: right to waive indictment, information, or other formal accusation, 56 A.L.R.2d 837.

Hearsay: admission of hearsay evidence incompetent at trial as affecting, in absence of statutory regulation, validity of indictment or conviction, 37 A.L.R.3d 612.

Incompetent witness, validity of indictment where grand jury heard, 39 A.L.R.3d 1064.

42 C.J.S. Indictments and Informations § 13 et seq.