HOUSE BILL 19

54th legislature - STATE OF NEW MEXICO - first session, 2019

INTRODUCED BY

Dayan Hochman-Vigil

AN ACT

RELATING TO GRAND JURIES; ALLOWING METROPOLITAN COURTS TO CONVENE GRAND JURIES; PROVIDING FOR ELECTRONIC RECORDING AS AN ALTERNATIVE RECORDING METHOD IN GRAND JURY PROCEEDINGS.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

     SECTION 1. Section 31-6-1 NMSA 1978 (being Laws 1969, Chapter 276, Section 1, as amended) is amended to read:

     "31-6-1. GRAND JURY PANELS--CALLING--QUALIFYING.--[The] A district or metropolitan 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] the judge deems necessary. Each grand jury shall be composed of twelve regular jurors and a sufficient number of alternates to [insure] ensure the continuity of the inquiry and the taking of testimony. All deliberations shall be conducted by any twelve jurors, [comprised] composed of regular jurors or substituted alternates. No more than twelve jurors [may] shall deliberate. [No] A juror [may] shall not 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."

     SECTION 2. Section 31-6-2 NMSA 1978 (being Laws 1969, Chapter 276, Section 2, as amended) is amended to read:

     "31-6-2. [FOREMAN] FOREPERSON OF GRAND JURY.--The jurors of a grand jury shall select one [of their number] member to serve as [foreman] foreperson of the grand jury. The [foreman] foreperson:

          A. shall:

                (1) preside over the sessions of the grand jury; [The foreman shall]

                (2) administer oaths to witnesses; [The foreman will] and

                (3) sign all reports, indictments or other undertakings of the grand jury; [The foreman] and

          B. may:

                (1) appoint one member of the grand jury as a clerk to aid in the keeping of notes or minutes and the tallying of votes during secret sessions when no persons other than grand jury members [may] shall be present; [The foreman may]

                (2) recess the sessions of the grand jury and reconvene them; [The foreman] and

                (3) for good cause, [may] request the district or metropolitan court to excuse or discharge individual grand jurors and to replace them with alternate grand jurors as necessary to continue the work of the grand jury."

     SECTION 3. Section 31-6-4 NMSA 1978 (being Laws 1969, Chapter 276, Section 4, as amended) is amended to read:

     "31-6-4. TIME AND PLACE FOR HEARING--PRIVACY OF HEARINGS--[WITNESSES] TARGET WITNESS PERMITTED TO HAVE ATTORNEY PRESENT.--

          A. A grand jury shall conduct its hearing during the usual business hours of the court [which] that 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] foreperson wherever deemed necessary within the county, but no oral testimony or other evidence [may] shall 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:

                (1) the grand jury [the];

                (2) 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], including:

                     (a) the district attorney [and] or the attorney general and their staffs;

                     (b) interpreters;

                     (c) court reporters;

                     (d) with special leave of the district or metropolitan court, security officers; provided, however, that the officers shall not be potential witnesses nor otherwise interested parties in the matter being presented to the grand jury; and

                     (e) 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] providing testimony; and

                (3) an attorney for the target witness, if the target witness has one; provided, however, that the attorney may be present only while the target [witness] is testifying and may advise the [witness] target but may not speak so [that he can] as to 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.

          C. All deliberations shall be conducted in a private room outside the hearing or presence of any person other than the grand jury members."

     SECTION 4. Section 31-6-5 NMSA 1978 (being Laws 1969, Chapter 276, Section 5, as amended) is amended to read:

     "31-6-5. RETURN OF INDICTMENTS.--Indictments shall be returned by the grand jury within twenty-four hours following the day when the indictment is voted. Indictments shall not name persons as unindicted coconspirators. Indictments may be filed and prosecution and trial had thereon without regard to court terms. No-bills shall be sealed and filed with the district court or metropolitan court clerk. Upon application to the court by the state for good cause shown, or upon request by the target, the court may release a sealed no-bill."

     SECTION 5. Section 31-6-6 NMSA 1978 (being Laws 1969, Chapter 276, Section 6, as amended) is amended to read:

     "31-6-6. OATHS--GRAND JURORS--WITNESSES--OFFICERS-- PENALTY.--

          A. The following oaths shall be administered by the district or metropolitan judge to jurors, officers of the court or others assigned to assist the grand jury, and by the [foreman] foreperson to witnesses:

                (1) JUROR OATH: "You, as members of this grand jury, do swear (or affirm) that you will diligently inquire and true indictment make, of all public offenses against the people of this state, committed or triable within this county, of which you shall receive legal evidence; that you shall indict no person through malice, hatred or ill will; nor have any not indicted through fear, favor or affection, or for any reward or the hope or promise thereof; but in all your indictments, reports or undertakings, you shall present the truth, according to the best of your skill and understanding, and further that you will forever keep secret whatever you or any other juror may have said or in what manner you or any other juror may have voted on any matter before you; and that you will keep secret the testimony of any witness heard by you unless ordered by the court to disclose the same in the trial or prosecution of the witness for perjury before the grand jury, so help you God.";

                (2) OATH FOR OFFICER OR OTHER PERSON: "You do swear (or affirm) that you will keep secret all proceedings occurring in your presence or of which you may learn as a result of your service in aid of the grand jury, so help you God."; and

                (3) OATH FOR WITNESS: "You do swear (or affirm) that the testimony [which] that you are about to give will be the truth, so help you God.".

          B. Any person found to have violated the oath under Paragraph (1) or (2) of Subsection A of this section shall be guilty of a misdemeanor. This subsection shall not apply to communications by the prosecuting attorney to [his] the prosecuting attorney's staff or grand jury aides and in obtaining and presenting evidence, preparing indictments, reports and other undertakings of the grand jury and in preparation for trial."

     SECTION 6. Section 31-6-8 NMSA 1978 (being Laws 1969, Chapter 276, Section 8, as amended) is amended to read:

     "31-6-8. RECORD OF TESTIMONY.--All proceedings in the grand jury room, with the exception of the deliberations of the grand jury, shall be electronically recorded or reported verbatim. [and] If the proceedings are electronically recorded, all files shall be deposited with the clerk or other officer as directed by the judge of the court. If the proceedings are reported verbatim, the notes or transcriptions [thereof] shall be certified by the court reporter or stenographer making them, with the notes or transcriptions then deposited with the clerk or other officer of the [district] court as directed by the [district] judge. Upon order of the [district] court in cases where an indictment is returned, the notes, if available, may be caused to be transcribed and certified by the stenographer or court reporter who made them [if available] or by another person qualified and competent to transcribe them accurately. Copies of documentary evidence, or a summary thereof if directed by the [district] court, exhibited to the grand jury shall be made a part of the record. In cases where an indictment is not returned, the electronic record, notes or transcriptions shall be destroyed unless ordered by the [district] judge to be preserved for good cause shown, including [but not limited to] the prosecution of a witness for perjury."

     SECTION 7. Section 31-6-9 NMSA 1978 (being Laws 1969, Chapter 276, Section 9, as amended) is amended to read:

     "31-6-9. CHARGE TO GRAND JURY.--The district or metropolitan judge convening a grand jury shall charge it with its duties and direct it as to any special inquiry into violations of law that [he] the judge wishes it to make."

     SECTION 8. Section 31-6-11 NMSA 1978 (being Laws 1969, Chapter 276, Section 11, as amended) is amended to read:

     "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] the target's 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 or metropolitan 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] the person 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] the target 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] the target 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."

     SECTION 9. Section 31-6-12 NMSA 1978 (being Laws 1969, Chapter 276, Section 12, as amended) is amended to read:

     "31-6-12. SUBPOENA POWERS--NOTICE TO WITNESSES.--

          A. The grand jury has power to order the attendance of witnesses before it, to cause the production of all public and private records or other evidence relevant to its inquiry and to enforce such power by subpoena issued on its own authority through the district or metropolitan court convening the grand jury and executed by any public officer charged with the execution of legal process of the [district] convening court; provided that all subpoenaed witnesses shall be given a minimum of [thirty-six-hours'] thirty-six hours' notice unless a shorter period is specifically approved for each witness by a judge of the [district] convening court.

          B. The target of the investigation shall not be subpoenaed except where it is found by the prosecuting attorney to be essential to the investigation. If the target and [his] the target's attorney, if [he has] there is one, sign a document stating that the target will assert the fifth amendment, [he] that the target shall be excused from testifying on those matters as to which the district or metropolitan judge determines [he] the target has a valid fifth amendment privilege.

          C. Subpoenas directed to witnesses shall be returnable only when the grand jury is sitting."

     SECTION 10. Section 31-6-13 NMSA 1978 (being Laws 1969, Chapter 276, Section 13) is amended to read:

     "31-6-13. COMPENSATION OF JURORS AND WITNESSES.--[Grand jurors shall be paid by the district court] The court convening a grand jury shall pay the:

          A. jurors a per diem allowance and mileage for their necessary travel for their attendance and service in the amounts provided by law for trial or petit jurors [Witnesses attending the grand jury under subpoena shall be paid by the district court]; and

          B. witnesses attending the grand jury under subpoena a per diem allowance and mileage for their necessary travel in the amounts provided by law for witnesses attending trials."

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