2021 New Mexico Statutes
Chapter 31 - Criminal Procedure
Article 6 - Grand Jury
Section 31-6-4 - Time and place for hearing; privacy of hearings; witnesses permitted to have attorney present.

A. A grand jury shall conduct its hearing during the usual business hours of the court which convened it. Hearings and deliberations may be conducted at any place ordered by the convening judge and provided by the court. Inspections or grand jury views of places under inquiry may be made when directed by the foreman wherever deemed necessary within the county, but no oral testimony or other evidence may be received except during formal private sessions.

B. All deliberations shall be conducted in a private room outside the hearing or presence of any person other than the grand jury members. All taking of testimony shall be in private with no persons present other than the grand jury, the persons required or entitled to assist the grand jury and the attorney, if any, of the target.

C. Persons required or entitled to be present at the taking of testimony before the grand jury include the district attorney and the attorney general and their staffs, interpreters, court reporters, security officers, the witness and an attorney for the target. Security personnel may be present only with special leave of the district court and are neither potential witnesses nor otherwise interested parties in the matter being presented to the grand jury.

D. If a target has his attorney present, the attorney may be present only while the target witness is testifying and may advise the witness but may not speak so that he can be heard by the grand jurors or otherwise participate in the proceedings. At least twenty-four hours before grand jury proceedings begin, the target's attorney may submit proposed questions and exhibits to the district attorney or the attorney general.

History: 1953 Comp., § 41-5-4, enacted by Laws 1969, ch. 276, § 4; 1979, ch. 337, § 2; 1981, ch. 262, § 2; 2003, ch. 363, § 2.

Repeals. — Laws 1969, ch. 276, § 14, repealed former 41-5-4, 1953 Comp., relating to trial of challenges to the grand jury.

The 2003 amendment, effective July 1, 2003, deleted "witness" following "target" in Subsection B and present Subsection D; rewrote Subsection C; and added Subsection D.

Purpose of section is to maintain utmost secrecy; therefore, it has been the practice for more than 200 years for the investigations of the grand jury to be in private, except that the district attorney and his assistant are present, since secrecy is the vital requisite of grand jury procedure. State v. Hill, 1975-NMCA-093, 88 N.M. 216, 539 P.2d 236.

"Unusual business hours". — Although the language of this section requires the grand jury to conduct its hearing during the usual business hours of the court, a distinction must be made between the business hours of the judge who convenes the grand jury and the business hours of the court. Because a particular judge is unavailable after 5:00 p.m. does not make access to the court impossible. State v. Weiss, 1986-NMCA-128, 105 N.M. 283, 731 P.2d 979, cert. denied, 105 N.M. 290, 731 P.2d 1334.

Usual business hours. — Where the grand jury was convened at 8:30 a.m. and returned a true bill at 2:12 a.m. on the following morning, this unusually extended session of the grand jury was not a substantial violation of defendants' rights, though it constituted a technical violation of this section. State v. Weiss, 1986-NMCA-128, 105 N.M. 283, 731 P.2d 979, cert. denied, 105 N.M. 290, 731 P.2d 1334.

"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.

No opportunity for improper influence on grand jury allowed. — The law protects the fairness and impartiality of the grand jury hearing. Not only must there be no improper influence exercised, there must be no opportunity for improper influence on the grand jury. State v. Hill, 1975-NMCA-093, 88 N.M. 216, 539 P.2d 236.

Presence of unauthorized persons in a grand jury proceeding jeopardizes the basic purpose of the proceeding and opens the door to a number of potential abuses. State v. Bigler, 1982-NMCA-136, 98 N.M. 732, 652 P.2d 754, cert. denied, 98 N.M. 762, 652 P.2d 1213.

Type of evidence presented not included within meaning of section. — This section does not deal with the type of evidence which may be presented to a grand jury. State v. Evans, 1976-NMCA-113, 89 N.M. 765, 557 P.2d 1114, cert. denied, 90 N.M. 7, 558 P.2d 619.

Unauthorized person's presence requires dismissal of indictment. — The presence of an unauthorized person before the grand jury requires dismissal of the indictment without the necessity of showing prejudice. Davis v. Traub, 1977-NMSC-049, 90 N.M. 498, 565 P.2d 1015.

Issuance of writ of prohibition. — Writ of prohibition is properly issued when the indictment is dismissed because of the presence of an unauthorized person before the grand jury. Davis v. Traub, 1977-NMSC-049, 90 N.M. 498, 565 P.2d 1015.

District attorney's presence during deliberations prohibited. — The presence of the district attorney during deliberations of the grand jury is specifically and unequivocably prohibited by this section, which is clear and is not subject to construction. No one other than the grand jury members may be present during the time the grand jury is deliberating. Like other statutes governing grand jury proceedings, it is to be rigorously observed and strictly enforced. Baird v. State, 1977-NMSC-067, 90 N.M. 667, 568 P.2d 193.

Impropriety of district attorney's presence may be waived. — Notwithstanding the fact that district attorney violated this section by his presence during grand jury deliberations, defendant charged with murder waived her objections based upon such improprieties by entering into a plea and disposition agreement which was approved and accepted by the trial court through a plea of no contest to the charge of involuntary manslaughter. The defects of the grand jury proceedings were not so fundamental that they could not be waived. Baird v. State, 1977-NMSC-067, 90 N.M. 667, 568 P.2d 193.

Actions of state or defense attorneys insufficient to invalidate indictment. — The mere fact that assistant attorneys general disagree in the grand jury's presence, or that defense attorneys would have presented different legal advice to the grand jury, does not invalidate the indictment. State v. Carr, 1981-NMCA-029, 95 N.M. 755, 626 P.2d 292, cert. denied, 95 N.M. 669, 625 P.2d 1186, and cert. denied, 454 U.S. 853, 102 S. Ct. 298, 70 L. Ed. 2d 145 (1981), overruled on other grounds by State v. Olguin, 1994-NMCA-050, 118 N.M. 91, 879 P.2d 92. Sct. Olguin affirms app Olguin.

Attorney not "present" merely because he took deposition testimony. — Because the grand jury has the power to subpoena "records or other evidence relevant to its inquiry," the grand jury could properly consider deposition testimony, and the fact that the deposition was taken by attorney did not make attorney present, within the meaning of this section, when the deposition was read to the grand jury. State v. Evans, 1976-NMCA-113, 89 N.M. 765, 557 P.2d 1114, cert. denied, 90 N.M. 7, 558 P.2d 619.

No statutory right to counsel. — Neither the Grand Jury Act nor the Public Defender Act provides a target witness testifying before a grand jury with a right to counsel such that an indictment must be dismissed if counsel is not present and there is no express voluntary, knowing, and intelligent waiver of counsel's presence. State v. Tisthammer, 1998-NMCA-115, 126 N.M. 52, 966 P.2d 760, cert. denied, 126 N.M. 107, 967 P.2d 447.

Postponement to obtain counsel. — A target witness has no statutory right to counsel; therefore, the state was not required to postpone the grand jury proceedings to allow the witness time to obtain counsel. State v. Tisthammer, 1998-NMCA-115, 126 N.M. 52, 966 P.2d 760, cert. denied, 126 N.M. 107, 967 P.2d 447.

When district attorney's assistant not permitted in grand jury room. — It is highly improper for counsel employed to prosecute a case to be permitted to go into the grand jury room where the defendant cannot be heard and has no one to represent him. This duty should be performed alone by the proper officer of the law and assistant to the district attorney may not be present or participate in the grand jury hearing room. State v. Hill, 1975-NMCA-093, 88 N.M. 216, 539 P.2d 236.

Prosecuting attorney assists grand jury, but not as partisan. — While this statute contemplates that the prosecuting attorney will assist the grand jury, nevertheless the prosecuting attorney does not appear before the grand jury as a partisan, bent upon obtaining an indictment; the presence and participation of an attorney ordered by the trial judge to assist in the prosecution of a case, who was employed by the father-in-law of the deceased, in the grand jury hearing was unlawful and in violation of this section and invalidated the indictment. State v. Hill, 1975-NMCA-093, 88 N.M. 216, 539 P.2d 236.

Conflict of interest precludes prosecutor's appearance. — The prosecutor himself is unauthorized to appear before the grand jury if there is a conflict of interest (1) in which his own property is damaged by criminal mischief, or (2) arising from prior employment with the defendant; since the prosecutor is a public officer with duties quasi-judicial in nature, with an obligation to protect not only the public interest but also the rights of the accused, in the performance of his duties he must not only be disinterested and impartial but must also appear to be so, scrupulously refraining from words or conduct that may influence the decision of the grand jury and observing limits of essential fairness. State v. Hill, 1975-NMCA-093, 88 N.M. 216, 539 P.2d 236.

Attorney general's investigator not "authorized person" to assist in hearing. — Claim that an investigator for the attorney general was an "authorized person" and his presence in the grand jury room was not improper inasmuch as he had been appointed a grand jury aide pursuant to Section 31-6-7 NMSA 1978, had no merit because grand jury aides are not authorized by statute to be present in the grand jury room unless they fall within the categories specified in this section. Davis v. Traub, 1977-NMSC-049, 90 N.M. 498, 565 P.2d 1015.

"Staff" construed. — Attorney general's assertion that any member of his staff could properly be present during the grand jury hearings was an erroneous interpretation of this section and ignored the meaning of the words "persons required or entitled to assist the grand jury." Such persons are enumerated in the statute. Staff in this context refers to the legal staff of the district attorney or the attorney general's office, e.g. assistant district attorneys or assistant attorneys general. Davis v. Traub, 1977-NMSC-049, 90 N.M. 498, 565 P.2d 1015.

Presence of person not officially listed as court reporter upheld. — Person who was present during grand jury deliberations for purpose of monitoring an electronic device that recorded the grand jury testimony was within the definition of court reporter for purposes of this section. Defendant's claim that such person was not authorized to be present because he was not listed as official court reporter was frivolous, there being no contention that the operator's presence was not for the purpose of operating the recording device. State v. Baird, 1977-NMCA-041, 90 N.M. 678, 568 P.2d 204, aff'd, 1977-NMSC-067, 90 N.M. 667, 568 P.2d 193.

"Target witness", referred to in Subsections B and C, is anyone who is the focus of a grand jury's investigation. State v. Hall, 1985-NMCA-075, 103 N.M. 207, 704 P.2d 461.

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.

Simultaneous appearance of two witnesses violates statute. — Since this section refers to "the witness" in the singular, incident which occurred during grand jury investigation wherein two witnesses appeared before the grand jury simultaneously clearly violated the terms of the statute. Davis v. Traub, 1977-NMSC-049, 90 N.M. 498, 565 P.2d 1015.

Presumption of prejudice when indictment quashed. — A showing of prejudice is not required when an unauthorized person is present at grand jury proceedings in order to have the indictment quashed. Prejudice is presumed. State v. Hill, 1975-NMCA-093, 88 N.M. 216, 539 P.2d 236.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 38 Am. Jur. 2d Grand Jury § 30 et seq.

Communicating with grand jury as contempt, 29 A.L.R. 489.

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

Duty of secrecy on part of members of, or witnesses or other persons present before, grand jury, 127 A.L.R. 272.

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

Validity and construction of statutes permitting grand jury witnesses to be accompanied by counsel, 90 A.L.R.3d 1333.

Presence of unauthorized persons during state grand jury proceedings as affecting indictment, 23 A.L.R.4th 397.

Presence of persons not authorized by Rule 6(d) of Federal Rules of Criminal Procedure during session of grand jury as warranting dismissal of indictment, 68 A.L.R. Fed. 798.

38A C.J.S. Grand Juries §§ 68, 69, 70, 71, 73.