0001| SENATE BILL 1123
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0002| 43rd legislature - STATE OF NEW MEXICO - first session, 1997
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0003| INTRODUCED BY
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0004| FERNANDO R. MACIAS
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0005|
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0006|
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0007|
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0008| FOR THE COURTS, CORRECTIONS AND CRIMINAL JUSTICE COMMITTEE
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0009|
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0010| AN ACT
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0011| RELATING TO GRAND JURIES; CHANGING PROCEDURES ATTENDANT TO
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0012| GRAND JURY PROCEEDINGS; PROVIDING THE TARGET OF A GRAND JURY
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0013| PROCEEDING WITH NOTICE OF HIS TARGET STATUS; AMENDING SECTIONS
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0014| OF THE NMSA 1978.
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0015|
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0016| BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
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0017| Section 1. Section 31-6-3 NMSA 1978 (being Laws 1969,
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0018| Chapter 276, Section 3) is amended to read:
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0019| "31-6-3. CHALLENGE TO GRAND JURY.--Any person held to
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0020| answer for an offense by grand jury indictment, upon
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0021| arraignment to the charge therein, by motion to quash the
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0022| indictment stating with particularity the ground therefor, may
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0023| challenge the validity of the grand jury. A failure to file
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0024| such motion is a waiver of the challenge. Grounds that may be
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0025| presented by such motion are limited to the following:
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0001| A. the grand jury was not selected in accordance
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0002| with law;
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0003| B. a member of the grand jury returning the
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0004| indictment was ineligible to serve as a juror; [or]
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0005| C. a member of the grand jury returning the
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0006| indictment was not qualified to serve due to a conflict of
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0007| interest, bias, partiality or inability to follow the law; or
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0008| [C.] D. a member of the grand jury returning
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0009| the indictment was a potential witness [against the person
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indicted] in the grand jury proceedings."
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0011| Section 2. Section 31-6-4 NMSA 1978 (being Laws 1969,
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0012| Chapter 276, Section 4, as amended) is amended to read:
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0013| "31-6-4. TIME AND PLACE FOR HEARING--PRIVACY OF HEARINGS-
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0014| -WITNESSES PERMITTED TO HAVE ATTORNEY PRESENT.--
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0015| A. A grand jury shall conduct its hearing during
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0016| the usual business hours of the court which convened it.
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0017| Hearings and deliberations may be conducted at any place
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0018| ordered by the convening judge and provided by the court.
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0019| Inspections or grand jury views of places under inquiry may be
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0020| made when directed by the foreman wherever deemed necessary
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0021| within the county, but no oral testimony or other evidence may
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0022| be received except during formal private sessions.
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0023| B. All deliberations will be conducted in a private
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0024| room outside the hearing or presence of any person other than
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0025| the grand jury members. All taking of testimony will be in
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0001| private with no persons present other than the grand jury, the
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0002| persons required or entitled to assist the grand jury and the
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0003| attorney, if any, of the target [witness].
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0004| C. Persons required or entitled to be present at
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0005| the taking of testimony before the grand jury may include the
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0006| district attorney and the attorney general and their staffs,
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0007| interpreters, court reporters, security officers, the witness
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0008| and an attorney for the target [witness]; provided that such
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0009| security personnel may be present only with special leave of
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0010| the district court and are neither potential witnesses nor
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0011| otherwise interested parties in the matter being presented to
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0012| the grand jury. If a target [witness] has his attorney
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0013| present, the attorney may [be present only while the target
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witness is testifying and may advise the witness but may not
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speak so that he can be heard by the grand jurors or otherwise
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participate in the proceedings] participate in the
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0017| proceedings by assisting the target's testimony and assisting
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0018| other witnesses who testify on behalf of the target."
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0019| Section 3. Section 31-6-7 NMSA 1978 (being Laws 1969,
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0020| Chapter 276, Section 7, as amended) is amended to read:
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0021| "31-6-7. ASSISTANCE FOR GRAND JURY.--The district court
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0022| shall assign court reporters, bailiffs, interpreters, clerks or
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0023| other persons as required to aid the grand jury in carrying out
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0024| its duties. The attorney general, when requested by the
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0025| district court, shall assist the grand jury. The district
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0001| attorney shall attend the grand jury, examine witnesses and
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0002| prepare indictments, reports and other undertakings of the
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0003| grand jury. The prosecuting attorney and all grand jurors
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0004| shall conduct [himself] themselves in a fair and impartial
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0005| manner at all times [when assisting] during the grand jury
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0006| proceedings."
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0007| Section 4. Section 31-6-11 NMSA 1978 (being Laws 1969,
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0008| Chapter 276, Section 11, as amended) is amended to read:
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0009| "31-6-11. EVIDENCE BEFORE GRAND JURY.--
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0010| A. Evidence before the grand jury upon which it may
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0011| find an indictment is [the] that which is lawful, competent
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0012| and relevant, including the oral testimony of witnesses under
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0013| oath and any documentary or other physical evidence exhibited
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0014| to the jurors. The sufficiency [or competency] of the
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0015| evidence upon which an indictment is returned shall not be
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0016| subject to review absent a showing of bad faith on the part of
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0017| the prosecuting attorney assisting the grand jury.
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0018| B. It is the duty of the grand jury to weigh all
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0019| the evidence submitted to it, and when it has reason to believe
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0020| that other lawful, competent and relevant evidence is
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0021| available that may [explain away or] disprove or reduce a
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0022| charge or accusation or that would make an indictment
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0023| unjustified, then it should order the evidence produced. [The
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target shall be notified of his target status and be given an
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opportunity to testify, if he desires to do so, unless the
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prosecutor determines that notification may result in flight,
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endanger other persons, obstruct justice or the prosecutor is
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unable with reasonable diligence to notify said person. A
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showing of reasonable diligence in notifying the target by the
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prosecutor is not required unless and until the target
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establishes actual and substantial prejudice as a result of an
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alleged failure by the prosecutor to exercise reasonable
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diligence in notifying the target of his target status before
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the grand jury. The prosecuting attorney assisting the grand
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jury shall present evidence that directly negates the guilt of
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the target where he is aware of such evidence.] The district
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0012| attorney assisting the grand jury, when he is aware of the
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0013| existence of other lawful, competent or relevant evidence,
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0014| shall present that evidence to the grand jury.
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0015| C. A district attorney shall use reasonable
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0016| diligence to notify a person in writing that the person is the
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0017| target of a grand jury investigation. Unless the district
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0018| attorney determines that providing notification may result in
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0019| flight by the target, result in obstruction of justice or pose
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0020| a danger to another person, the target of a grand jury
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0021| investigation shall be notified in writing of the following
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0022| information:
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0023| (1) that he is the target of an investigation;
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0024| (2) the nature of the crime being
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0025| investigated, including the elements of the crime and any
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0001| applicable statutory citations;
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0002| (3) the target's right to testify by way of
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0003| questioning conducted by the target's counsel, no sooner than
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0004| ten days after service of the target notice, unless the target
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0005| agrees to testify sooner;
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0006| (4) the target's right to choose to remain
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0007| silent;
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0008| (5) the statutory requirement that the grand
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0009| jury be presented with all lawful, competent and relevant
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0010| evidence; and
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0011| (6) the target's right to present instructions
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0012| regarding applicable lesser offenses to the grand jury."
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0013| Section 5. EFFECTIVE DATE.--The effective date of the
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0014| provisions of this act is July 1, 1997.
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0015|
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