46th legislature - STATE OF NEW MEXICO - first session, 2003

RELATING TO GRAND JURIES; CHANGING PROCEDURES FOR GRAND JURY HEARINGS; PROVIDING THE TARGET OF A GRAND JURY HEARING WITH NOTICE OF HIS STATUS AS A TARGET; AMENDING SECTIONS OF THE NMSA 1978.

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

Section 1. Section 31-6-3 NMSA 1978 (being Laws 1969, Chapter 276, Section 3) is amended to read:

"31-6-3. CHALLENGE TO GRAND JURY.--Any person held to answer for an offense by grand jury indictment, upon arraignment to the charge therein, by motion to quash the indictment stating with particularity the ground therefor, may challenge the validity of the grand jury. A failure to file such motion is a waiver of the challenge. Grounds that may be presented by such motion are limited to the following:

A. the grand jury was not selected in accordance with law;

B. a member of the grand jury returning the indictment was ineligible to serve as a juror; [or]

C. a member of the grand jury returning the indictment was a potential witness [against the person indicted] in the grand jury proceedings; or

D. a member of the grand jury returning the indictment was not qualified to serve due to a conflict of interest, bias, partiality or inability to follow the law."

Section 2. 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 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 [will] 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 [will] 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 [witness].

C. Persons required or entitled to be present at the taking of testimony before the grand jury [may] include the district attorney and the attorney general and their staffs, interpreters, court reporters, security officers, the witness and an attorney for the target [witness; provided that such]. 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 [witness] 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 by assisting the target's testimony and assisting other witnesses who testify on behalf of the target."

Section 3. 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 clerk. Upon application to the court by the state [or the person named in the proposed indictment, the court may release a sealed no-bill] for good cause shown, or upon request by the target, the court may release a sealed no-bill."

Section 4. Section 31-6-7 NMSA 1978 (being Laws 1969, Chapter 276, Section 7, as amended) is amended to read:

"31-6-7. ASSISTANCE FOR GRAND JURY--REPORT.--

A. The district court shall assign necessary personnel to aid the grand jury in carrying out its duties. The district attorney or his assistants shall attend the grand jury, examine witnesses and prepare indictments, reports and other undertakings of the grand jury.

B. When engaged in the investigation of an offense over which he has jurisdiction, the attorney general or his assistants may attend a grand jury, examine witnesses and prepare indictments, reports and other undertakings of the grand jury.

C. When a grand jury is convened in response to a citizens' grand jury petition pursuant to Article 2, Section 14 of the constitution of New Mexico, the district attorney or his assistants, unless otherwise disqualified, shall attend and conduct the grand jury.

D. A prosecuting attorney attending a grand jury and all grand jurors shall conduct [himself] themselves in a fair and impartial manner at all times [when assisting the grand jury] during grand jury proceedings.

E. A grand jury, in its discretion, may make a formal, written report as to the condition and operation of any public office or institution it has investigated. The report shall not charge any public officer or other person with willful misconduct, corruption or malfeasance unless an indictment or accusation for removal from public office is also returned by the grand jury. The right of every person to be properly charged, face his accusers and be heard in his defense in open court shall not be circumvented by the report."

Section 5. 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--QUESTIONS OF LAW.--

A. The district 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 wishes it to make.

B. The district judge presiding over a grand jury shall make determinations regarding disputed questions of law before the grand jury that are brought to the court's attention by the grand jury foreman, the prosecuting attorney or the target."

Section 6. 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 sufficiency [or competency] 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 may [explain away or] disprove or reduce a charge or accusation or that would make an indictment unjustified, then it [should] shall order the evidence produced. [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.] The target or his counsel may alert the grand jury to the existence of evidence that may disprove or reduce an accusation or that would make an indictment unjustified, by notifying the grand jury foreman 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, including the elements and dates of the alleged crime and any applicable statutory citations;

(3) the target's right, within five days of receiving the target notice, to provide written notice of his decision to pursue a preliminary hearing or a grand jury hearing. If the target does not provide such a written response, the matter shall proceed to a grand jury hearing;

(4) the target's right to testify no earlier than ten days after receiving the target notice, unless the target agrees to testify sooner;

(5) the target's right to choose to remain silent;

(6) the target's right to assistance of counsel during the grand jury investigation;

(7) the statutory requirement that the grand jury be presented with lawful, competent and relevant evidence; and

(8) the target's right to have presented to the grand jury applicable instructions regarding offenses, lesser offenses and defenses."

Section 7. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2003.