2021 New Mexico Statutes
Chapter 31 - Criminal Procedure
Article 6 - Grand Jury
Section 31-6-11 - Evidence before grand jury.
A. Evidence before the grand jury upon which it may find an indictment is that which is lawful, competent and relevant, including the oral testimony of witnesses under oath and any documentary or other physical evidence exhibited to the jurors. The Rules of Evidence shall not apply to a grand jury proceeding. The sufficiency of the evidence upon which an indictment is returned shall not be subject to review absent a showing of bad faith on the part of the prosecuting attorney assisting the grand jury.
B. It is the duty of the grand jury to weigh all the evidence submitted to it, and when it has reason to believe that other lawful, competent and relevant evidence is available that would disprove or reduce a charge or accusation or that would make an indictment unjustified, then it shall order the evidence produced. At least twenty-four hours before grand jury proceedings begin, the target or his counsel may alert the grand jury to the existence of evidence that would disprove or reduce an accusation or that would make an indictment unjustified, by notifying the prosecuting attorney who is assisting the grand jury in writing regarding the existence of that evidence.
C. A district attorney shall use reasonable diligence to notify a person in writing that the person is the target of a grand jury investigation. Unless the district judge presiding over the grand jury determines by clear and convincing evidence that providing notification may result in flight by the target, result in obstruction of justice or pose a danger to another person, the target of a grand jury investigation shall be notified in writing of the following information:
(1) that he is the target of an investigation;
(2) the nature of the alleged crime being investigated and the date of the alleged crime and any applicable statutory citations;
(3) the target's right to testify no earlier than four days after receiving the target notice if he is in custody, unless for good cause the presiding judge orders a different time period or the target agrees to testify sooner;
(4) the target's right to testify no earlier than ten days after receiving the target notice if he is not in custody, unless for good cause the presiding judge orders a different time period or the target agrees to testify sooner;
(5) the target's right to choose to remain silent; and
(6) the target's right to assistance of counsel during the grand jury investigation.
History: 1953 Comp., § 41-5-11, enacted by Laws 1969, ch. 276, § 11; 1979, ch. 337, § 8; 1981, ch. 238, § 1; 2003, ch. 363, § 5.
ANNOTATIONSRepeals. — Laws 1969, ch. 276, § 14, repealed former 41-5-11, 1953 Comp., relating to the oath given to jurors subsequently admitted.
The 2003 amendment, effective July 1, 2003, inserted "that which is lawful, competent and relevant, including" in the first sentence, added the second sentence, and deleted "or competency" following "sufficiency" in Subsection A; inserted "lawful" following "other", "and relevant" following "competent" and "or reduce" following "disprove" in the first sentence and deleted the last three sentences, which read "The target shall be notified of his target status and be given an opportunity to testify, if he desires to do so, unless the prosecutor determines that notification may result in flight, endanger other persons, obstruct justice, or the prosecutor is unable with reasonable diligence to notify said person. A showing of reasonable diligence in notifying the target by the prosecutor is not required unless and until the target establishes actual and substantial prejudice as a result of an alleged failure by the prosecutor to exercise reasonable diligence in notifying the target of his target status before the grand jury. The prosecuting attorney assisting the grand jury shall present evidence that directly negates the guilt of the target where he is aware of such evidence" and added the present second sentence in Subsection B; and added Subsection C.
I. GENERAL CONSIDERATION
Courts are without power to review the sufficiency of the evidence upon which an indictment is returned absent a showing of bad faith. — Where a grand jury indicted defendants for armed robbery based on information developed as a result of subpoenas that represented on their face that they were issued in the name of the eighth judicial district court, but were actually prepared by a deputy district attorney in the eighth judicial district at a time where there was no pending prosecution, court action, or grand jury proceeding, and where defendants moved to quash the indictments or alternatively to suppress all evidence obtained through the use of the contested subpoenas, the district court erred in granting the motion and quashing the indictments based on the unlawful subpoenas, because the sufficiency of the evidence upon which an indictment is returned is not subject to review absent a showing of bad faith on the part of the prosecuting attorney assisting the grand jury. State v. Martinez, 2018-NMSC-031.
First-degree kidnapping. — A prosecutor seeking to indict an accused for first-degree kidnapping must present to the grand jury both the primary elements found in UJI 14-403 NMRA and the special verdicts form found in UJI 14-6018 NMRA and establish probable cause for the same elements at the grand jury stage. State v. Gallegos, 2009-NMSC-017, 146 N.M. 88, 206 P.3d 993.
"Prejudice" is appropriate constitutional standard. — Inasmuch as "prejudice" is an appropriate standard in considering the exercise of constitutional rights before a trial jury which determines guilt, there is no reason to apply a stricter standard in considering the exercise of constitutional rights before a grand jury which determines probable cause to accuse. State v. Martinez, 1982-NMCA-002, 97 N.M. 585, 642 P.2d 188, cert. denied, 98 N.M. 51, 644 P.2d 1040.
Subsection B "prejudice". — The prejudice with which former Subsection B is concerned is prejudice in charging criminal conduct on the basis of probable cause. State v. Penner, 1983-NMCA-116, 100 N.M. 377, 671 P.2d 38 (decided under prior law).
Prosecutor to impartially assist grand jury. — Although, following the 1981 amendment of this section, a prosecutor is not limited to presenting evidence admissible at trial to the grand jury, he is still constrained by his duty to assist the grand jury in a fair and impartial manner. Buzbee v. Donnelly, 1981-NMSC-097, 96 N.M. 692, 634 P.2d 1244.
Statements explaining law or procedure. — Statements by a prosecutor to the grand jury explaining the law or procedure are proper so long as the statements are not in conflict with the charge given to the grand jury by the court or are not otherwise incorrect statements of the law or improper. State v. Hewitt, 1988-NMCA-053, 108 N.M. 179, 769 P.2d 92, cert. quashed, 107 N.M. 785, 765 P.2d 758.
No requirement to instruct on 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.
In a prosecution for possession of marijuana in which the defendant argued that his possession and use of marijuana was a religious belief and sacrament, the prosecutor had no duty to instruct the grand jury on the defendant's "religious-use defense". 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.
Causation in vehicular homicide case. — Even though causation is an essential element of the charge of vehicular homicide, the prosecutor is not required to instruct the grand jury on causation, including the definitions of proximate cause. 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.
Trial court abused its discretion in quashing an indictment, where there was no indication that prosecutor's answers to jurors' questions improperly influenced the independent judgment of the jury so as to exclude or disregard the evidence urged to be considered by defendant. State v. Hewitt, 1988-NMCA-053, 108 N.M. 179, 769 P.2d 92, cert. quashed, 107 N.M. 785, 765 P.2d 758.
Challenge to a grand jury indictment should be raised prior to trial. — Where defendant was charged with first-degree murder, and where, prior to trial, defendant moved to dismiss the indictment arguing that he did not receive timely notice of the grand jury proceedings as required by 31-6-11 NMSA 1978, and where the district court found that defendant received timely notice and denied his motion, and where defendant was found guilty by a jury of willful, deliberate and premeditated murder, defendant's argument on appeal that the prosecution's failure to provide timely notice of the grand jury proceedings resulted in the violation of his right to testify before the grand jury was moot, because a challenge to a grand jury indictment should be raised before trial, because a jury's finding at trial of guilt beyond a reasonable doubt typically will moot any post-conviction challenges to the grand jury's determination of probable cause. State v. Gutierrez, 2021-NMSC-008.
II. EVIDENCE
Admissible evidence. — Section 31-6-11A NMSA 1978 provides that all evidence presented to a grand jury must be such as would be "legally admissible" upon trial. Prosecuting attorneys must abide by the letter and spirit of the law, and this precludes their use of inadmissible evidence when obtaining indictments. Maldonado v. State, 1979-NMSC-102, 93 N.M. 670, 604 P.2d 363.
Court prohibited from evaluating sufficiency of evidence behind an indictment. — Where defendants were indicted for intentional or negligent child abuse resulting in great bodily harm with alternative theories that either or both inflicted the abuse or knew, or should have known, that such abuse was being inflicted; defendants were the parents of children who were determined to have been physically abused; defendants and their children lived with one of the defendants' parents; defendants each filed pretrial motions to dismiss the indictment alleging that the facts of the case were undisputed and that as a purely legal issue, there was a lack of substantial evidence that could prove the identity of the perpetrator who caused the injuries to the children; the district court held a hearing on the motions and after reviewing transcripts of witness interviews, granted the motions to dismiss; and there was no claim that the state acted improperly in any way, the district court violated Section 31-6-11 NMSA 1978. State v. LaPietra, 2010-NMCA-009, 147 N.M. 569, 226 P.3d 668, cert. denied, 2009-NMCERT-012, 147 N.M. 600, 227 P.3d 90.
Hearsay evidence. — In the absence of prosecutorial bad faith, there is not clear statutory authority for judicial review of the grand jury's determination of probable cause. State v. Gallegos, 2009-NMSC-017, 146 N.M. 88, 206 P.3d 993.
Procedure to resolve pre-indictment evidentiary disputes. — A letter from a target to the grand jury generally should focus on providing the grand jury with a factual and non-argumentative description of the nature of any tangible evidence and the substance of the potential testimony of any suggested witnesses, along with the names and contact information of the necessary witnesses who could provide the exculpatory information. The letter to the grand jury should be accompanied by a separate cover letter or memorandum to the prosecutor, which will not go to the grand jury, expressing any necessary contextual information, arguments as to the propriety or significance of the requested evidence, the proposed questions, and any other matters that may be helpful to communicate to the prosecutor or the grand jury judge. If the prosecutor does not want to alert the grand jury to the existence of the witnesses suggested by the target or does not want to elicit the information from the witnesses that the target deems worthy of submission to the grand jury, the prosecutor must file a motion with the grand jury judge, with notice to the target, seeking confirmation of the prosecutor's decision not to call the witnesses or not to inquire into the subject matter proposed by the target. In the motion, the prosecutor should provide the grand jury judge with the target's letter submitting the proposed evidence, and the prosecutor's motion should state why the prosecutor believes the grand jury should not be alerted to the existence of the target-offered evidence. The grand jury judge can then decide whether to ask for a written response from the target and whether to hold a hearing to allow the parties to argue the matter. The grand jury judge should resolve the matter quickly, by written order in the judge's discretion if needed to preserve the record, giving the parties clear direction on how to proceed before the grand jury. Jones v. Murdoch, 2009-NMSC-002, 145 N.M. 473, 200 P.3d 523.
No post-indictment review. — There is no statutory right to post-indictment review for compliance with the pre-indictment procedures for enforcing Subsection B of Section 31-6-11 NMSA 1978 absent a showing of prosecutorial bad faith. State v. Yaw, 2011-NMCA-023, 150 N.M. 279, 258 P.3d 1071, cert. denied, 2011-NMCERT-001.
Where defendant, who was arrested for child abuse, sent a letter to the prosecutor serving as grand jury aide requesting the prosecutor to allow the grand jury to hear testimony from the children; the prosecutor did not comply with the request; defendant moved the grand jury judge to order the prosecutor to present the evidence to the grand jury; the grand jury judge held a hearing and ruled that the prosecutor did not have to present the evidence to the grand jury; and defendant did not claim that there was prosecutorial misconduct, defendant did not have a right to post-indictment review of the evidence presented to the grand jury. State v. Yaw, 2011-NMCA-023, 150 N.M. 279, 258 P.3d 1071, cert. denied, 2011-NMCERT-001.
Failure to disclose polygraph score. — Where the prosecution specifically told grand jury that defendant passed polygraph test, but failed to tell the grand jury his actual score on the test, the trial court properly refused defendant's motion to dismiss. The defendant failed to show that he was prejudiced, that the evidence directly negated his guilt, or that the allegedly exculpatory evidence would have been admissible at trial. State v. Blue, 1998-NMCA-135, 125 N.M. 826, 965 P.2d 945, cert. quashed, 127 N.M. 392, 981 P.2d 1210.
Evidence directly negating guilt does not require special instruction to the grand jury to weigh and consider the impact of the potentially exculpatory evidence in making a probable cause determination. 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.
Grand jury findings conclusive. — The findings of a grand jury, when made by and through an indictment, duly returned into court, and regular upon its face, are conclusive, and the courts are without power or jurisdiction to inquire into the subject and review the testimony submitted to the grand jury to determine whether or not the required kind or degree of evidence was submitted. State v. Stevens, 1979-NMCA-058, 93 N.M. 434, 601 P.2d 67, cert. denied, 93 N.M. 683, 604 P.2d 821.
Statutes governing evidence directory. — The statutes governing the kind, character and degree of evidence which should be produced before a grand jury in order to warrant the returning of an indictment are directory and are for the guidance of the grand jury. State v. McGill, 1976-NMCA-100, 89 N.M. 631, 556 P.2d 39.
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.
Courts powerless to review action of grand jury on indictments. — Unless there is some clear statutory authority to do so, the courts are without power to review the action of the grand jury to determine whether or not it had sufficient or insufficient, legal or illegal, competent or incompetent evidence upon which to return an indictment. State v. McGill, 1976-NMCA-100, 89 N.M. 631, 556 P.2d 39; Maldonado v. State, 1979-NMSC-102, 93 N.M. 670, 604 P.2d 363.
Courts powerless to review action of grand jury on indictments; exception. — On a pretrial motion to dismiss charges alleging the sexual exploitation of children, the district court may dismiss the charges where, on the undisputed face of the materials before the court, a jury could not find beyond a reasonable doubt that the material meets the elements of the offense as defined by the Sexual Exploitation of Children Act, Section 30-6A-1 NMSA 1978, et seq. State v. Rendleman, 2003-NMCA-150, 134 N.M. 744, 82 P.3d 554, cert. denied, 2003-NMCERT-003, 135 N.M. 51, 84 P.3d 668, overruled on other grounds by State v. Myers, 2009-NMSC-016, 146 N.M. 128, 207 P.3d 1105.
Sufficiency of evidence supporting indictment. — Sufficiency of evidence to support grand jury indictment is not subject to judicial review. State v. Chance, 1923-NMSC-042, 29 N.M. 34, 221 P. 183; State v. Paul, 1971-NMCA-040, 82 N.M. 619, 485 P.2d 375, cert. denied, 82 N.M. 601, 485 P.2d 357; State v. Harge, 1979-NMCA-120, 94 N.M. 11, 606 P.2d 1105, overruled on other grounds by Buzbee v. Donnelly, 1981-NMSC-097, 96 N.M. 692, 634 P.2d 1244.
An indictment duly returned into court and regular on its face cannot be challenged with respect to the kind and degree of evidence, Buzbee v. Donnelly, 1981-NMSC-097, 96 N.M. 692, 634 P.2d 1244.
Review of whether exculpatory evidence withheld. — Subsection B and Section 31-6-7 NMSA 1978 do not provide for judicial review as to whether exculpatory evidence was withheld from the grand jury. State v. McGill, 1976-NMCA-100, 89 N.M. 631, 556 P.2d 39.
Withholding of exculpatory evidence may cause denial of due process. — A defendant could be denied due process by a prosecutor withholding exculpatory evidence from the jury, since the grand jury has a duty to protect a citizen against unfounded accusation, and only specified persons are authorized by statute to present matters to the grand jury. State v. McGill, 1976-NMCA-100, 89 N.M. 631, 556 P.2d 39.
The withholding of exculpatory evidence from a grand jury by a prosecutor violates an accused's due process rights only when the withholding affects the outcome of the proceeding and prejudices the accused. Buzbee v. Donnelly, 1981-NMSC-097, 96 N.M. 692, 634 P.2d 1244.
Exculpatory circumstantial evidence. — There is no requirement that potentially exculpatory circumstantial evidence be considered by the grand jury in making a probable cause determination. 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.
Prosecutor's broad discretion to present exculpatory evidence. — Although a prosecutor is required to present direct exculpatory evidence to the grand jury, he is invested with wide discretion as to the selection and presentation of evidence. Mandamus will not lie where the effect of its issuance would be to improperly limit the scope of the state's prosecutorial discretion. Kerpan v. Sandoval Cnty. Dist. Att'ys Office, 1988-NMCA-007, 106 N.M. 764, 750 P.2d 464.
Prosecutor cannot prevent grand jury from investigating the facts. — Where petitioner was charged with second degree murder for the killing of petitioner's spouse; petitioner sent the prosecutor a letter requesting that the prosecutor alert the grand jury to evidence that petitioner had told a friend that the victim had physically abused petitioner; the letter also stated that the evidence would support a finding of self-defense; the grand jury judge ruled that the prosecutor did not have to alert the grand jury to petitioner's evidence because the letter contained legal arguments; during petitioner's testimony before the grand jury, one grand juror asked petitioner whether petitioner had ever told anyone that the victim had physically abused petitioner; and the prosecutor prevented petitioner from answering the question, the grand jury judge's ruling concerning the letter did not limit petitioner's testimony before the grand jury, the prosecutor lacked authority to preclude petitioner from answering direct questions from the grand jury, and the prosecutor interfered with the grand jury's independent duty to investigate the facts bearing on the issue of probable cause. Herrera v. Sanchez, 2014-NMSC-018.
Leading questions by prosecutor did not amount to bad faith. — Where the prosecutor submitted to the grand jury a proposed indictment charging defendant with numerous counts of criminal sexual contact of a minor, and where, during the grand jury proceedings, the prosecutor asked leading questions that merely summarized what was already testified to by the witness, the prosecutor's conduct did not amount to bad faith or structural error that would require dismissal of the indictment, because the prosecuting attorney merely restated certain aspects of the witness's testimony and suggested that this testimony established elements of the offenses charged in the indictment. State v. Deignan, 2016-NMCA-065.
Erroneous instructions to the grand jury constitute structural error. — Where the prosecutor submitted to the grand jury a proposed indictment charging defendant with numerous counts of criminal sexual contact of a minor (CSCM), attempted CSCM, and bribery of a witness, the prosecutor's erroneous instructions to the jury, including incorrectly telling the grand jury that the third-degree CSCM count had the same elements as the second-degree CSCM charge, failing to tell the grand jury what the underlying felony defendant was being charged with attempting to commit, and failing to instruct the grand jury as to the felony that the witness knew about when defendant intimidated her, constituted structural error and required dismissal of the charges. State v. Deignan, 2016-NMCA-065.
Duty of prosecutor. — This section is not violated simply because the prosecutor fails to produce evidence that is exculpatory, or through negligence fails to pursue an investigative lead that would produce directly exculpatory evidence. The prosecutor must know of the existence of the evidence and that it is exculpatory before the duty to produce it arises. State v. Armijo, 1994-NMCA-136, 118 N.M. 802, 887 P.2d 1269, cert. denied, 119 N.M. 20, 888 P.2d 466.
Due process afforded where inadmissible evidence not admitted at trial. — Where inadmissible evidence which has been presented to the grand jury is not admitted at trial, the indictment is not void and the defendant is afforded due process. Maldonado v. State, 1979-NMSC-102, 93 N.M. 670, 604 P.2d 363.
Use of direct evidence negating accused's guilt. — By the words "that directly negates the guilt," in the last sentence in Subsection B, the legislature intended to permit the use of direct evidence negating guilt of the accused and to prohibit the use of indirect, or circumstantial, evidence negating guilt. Buzbee v. Donnelly, 1981-NMSC-097, 96 N.M. 692, 634 P.2d 1244 (decided under prior law).
Subsection B requires a prosecutor to present to a grand jury only directly exculpatory evidence; he is not required to present evidence that does not directly negate guilt. State v. Juarez, 1990-NMCA-021, 109 N.M. 764, 790 P.2d 1045 (decided under prior law).
Exclusion of testimony not negating defendant's guilt. — Where testimony does not tend to negate defendant's guilt, its exclusion from the grand jury proceedings is no ground for dismissing the indictment. State v. Gonzales, 1981-NMCA-023, 95 N.M. 636, 624 P.2d 1033, overruled on other grounds by Buzbee v. Donnelly, 1981-NMSC-097, 96 N.M. 692, 634 P.2d 1244; State v. Lara, 1990-NMCA-075, 110 N.M. 507, 797 P.2d 296 (decided under prior law).
III. TARGET OF INVESTIGATION
Constitution does not give defendant right to cross-examine witnesses appearing before the grand jury. State v. Salazar, 1970-NMCA-056, 81 N.M. 512, 469 P.2d 157.
Application of target notification requirement. — The target notification requirement under Subsection B (now Subsection C) applies to persons whom a grand jury investigates on its own initiative. State v. Gonzales, 1981-NMCA-079, 96 N.M. 513, 632 P.2d 748, cert. denied, 96 N.M. 543, 632 P.2d 1181.
Whether statutory notice requirement has been met is question of fact. Rogers v. State, 1980-NMCA-034, 94 N.M. 218, 608 P.2d 530.
Four-days' notice to defendant of target status deemed sufficient. — Four-days' notice of a grand jury investigation and of target status is certainly sufficient time for the defendant to exercise his right to testify. State v. Cruz, 1983-NMSC-045, 99 N.M. 690, 662 P.2d 1357.
Any effective form of notice deemed sufficient. — This section does not specify the method of giving notice; any method, written or oral, suffices so long as the method employed complies with the statutory intent that the target be given an opportunity to testify. Rogers v. State, 1980-NMCA-034, 94 N.M. 218, 608 P.2d 530.
Notice to target's attorney may amount to compliance with the notice requirement, depending on the facts of the case. Rogers v. State, 1980-NMCA-034, 94 N.M. 218, 608 P.2d 530.
Failure to notify of target status. — Defendant was not entitled to notice that he was a target of the grand jury investigation when at the time the offense (perjury before the grand jury) 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.
Defect in required notice must be raised before trial. — The issue of whether notice has been given to the target of a grand jury investigation as required by this section is a claimed defect in the initiation of the prosecution; it must be raised prior to trial and, when raised, is to be decided by the trial court inasmuch as it does not involve a trial on the merits. Rogers v. State, 1980-NMCA-034, 94 N.M. 218, 608 P.2d 530.
Untimely motion to dismiss. — Because defendant did not file his motion to dismiss for failure to provide target notice until eight months after his arraignment, and he did not show any cause below or on appeal to waive the time limit, the trial court correctly found the motion to be untimely. State v. Vallejos, 1998-NMCA-151, 126 N.M. 161, 967 P.2d 836, cert. denied, 126 N.M. 107, 967 P.2d 447.
When notice requirement is issue, prosecutor has burden of establishing either that the target was notified or that notification was excused under the "unless" clause, because the prosecutor is the party affirming that the grand jury indictment is proper. Rogers v. State, 1980-NMCA-034, 94 N.M. 218, 608 P.2d 530.
Defendant assumed to have actual notice. — When the prosecutor advised the trial court in the presence of the defendant and his counsel that the parties had stipulated that letters advising the defendant of grand jury proceedings against him had not been returned as undelivered, it may be assumed that the defendant had received actual notice. State v. Garcia, 1982-NMCA-086, 98 N.M. 186, 646 P.2d 1250, cert. denied, 98 N.M. 336, 648 P.2d 794.
Grand jury target has a statutory right to testify before a grand jury. — Where defendants were indicted on multiple counts of fraud, conspiracy to commit fraud, forgery, racketeering, and conspiracy to commit racketeering, and where, prior to the grand jury proceeding, defendants informed the prosecutor assisting the grand jury of their desire to testify and appeared for the grand jury investigation prepared to testify, and where the prosecutor informed the grand jury of defendants' presence and desire to testify, but failed to tell the grand jury that defendants had a right to testify, resulting in the grand jury informing the prosecutor that it did not wish to hear defendants' testimony and that it was ready to begin its deliberations, the district court did not err in quashing the indictment, because the prosecutor's failure to provide correct and complete advice to the grand jury resulted in defendants being deprived of their right to testify. State v. Pareo, 2018-NMCA-040.
Failure to allow grand jury target to testify is a structural error in the grand jury process. — Where defendants were indicted on multiple counts of fraud, conspiracy to commit fraud, forgery, racketeering, and conspiracy to commit racketeering, but were not permitted to exercise their right to testify, the district court did not err in quashing the indictment without requiring defendants to demonstrate prosecutorial bad faith or prejudice, because the failure to allow defendants to testify before the grand jury was a structural defect in the grand jury process that required no showing of prejudice or of prosecutorial bad faith. State v. Pareo, 2018-NMCA-040.
Hearing on contention of juror bias. — Petitioner deserved a full review on interlocutory appeal from an order denying his motion to dismiss the indictments against him, where his contentions that several grand jurors were biased against him and other targeted witnesses before presentation of any evidence, and that he was led to believe that he could not present his own statement or explanation of the allegations against him, raised, at the very least, the issue of demonstrable prejudice to him. Anaya v. State, 1986-NMSC-027, 104 N.M. 150, 717 P.2d 1119.
Burden of showing prejudice. — Because the prejudice involved in former Subsection B is prejudice to the defendant in the bringing of a criminal charge, defendant's burden is to establish that his missing testimony would have changed the vote of the grand jury on the issue of probable cause. State v. Penner, 1983-NMCA-116, 100 N.M. 377, 671 P.2d 38.
Trial court did not err by denying defendant's motion to dismiss an indictment for failure of the state to present certain statements where he did not establish demonstrable prejudice by showing a substantial probability of a different outcome. State v. Lucero, 1998-NMSC-044, 126 N.M. 552, 972 P.2d 1143.
Prejudice to a defendant will not be presented from a lack of target notice and a lack of a chance to testify during a grand jury hearing. The defendant still must demonstrate the vote of the grand jury on the issue of probable cause. State v. Haynes, 2000-NMCA-060, 129 N.M. 304, 6 P.3d 1026.
The trial court did not err in denying the defendant's motion to dismiss the indictment based on his inability to testify before the grand jury because he was incarcerated at the time. The defendant did not demonstrate that his missing testimony would have changed the vote of the grand jury on the issue of probable cause. State v. Dominguez, 1993-NMCA-042, 115 N.M. 445, 853 P.2d 147, cert. denied, 115 N.M. 409, 852 P.2d 682.
Constitutional claim not supported. — Allegation of due process claim that, while detained, appellant was denied his right to testify at a grand jury hearing, as required by Subsection C of this section, does not and cannot support a constitutional claim. Hoffman v. Martinez, 92 Fed.Appx. 628 (10th Cir. 2004).
Law reviews. — For article, "Survey of New Mexico Law, 1979-80: Criminal Law and Procedure," see 11 N.M.L. Rev. 85 (1981).
For note, "Criminal Procedure - Grand Jury - Inadmissible Evidence, Due Process," see 11 N.M.L. Rev. 451 (1981).
For annual survey of New Mexico law relating to criminal procedure, see 12 N.M.L. Rev. 271 (1982).
For annual survey of New Mexico law relating to criminal procedure, see 13 N.M.L. Rev. 341 (1983).
For annual survey of New Mexico Criminal Procedure, see 20 N.M.L. Rev. 285 (1990).
Am. Jur. 2d, A.L.R. and C.J.S. references. — 38 Am. Jur. 2d Grand Jury § 37.
Indictment based on evidence illegally procured, 24 A.L.R. 1432.
Quashing indictment for lack or insufficiency of evidence before grand jury, 59 A.L.R. 567.
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.
Individual's right to present complaint or evidence of criminal offense to grand jury, 24 A.L.R.4th 316.
Duty of prosecutor to present exculpatory evidence to state grand jury, 49 A.L.R.5th 639.
38A C.J.S. Grand Juries §§ 98, 101, 112 et seq., 171 et seq.
