A. Timing upon filing of criminal complaint. (1) Time limits. Grand jury proceedings shall be scheduled and held with a disposition entered within a reasonable time but in any event no later than ten (10) days if the defendant is in custody, and no later than sixty (60) days if the defendant is not in custody, of whichever of the following events occurs latest: (a) the first appearance;(b) the first appearance after the refiling of a case previously dismissed by the prosecutor;(c) if an evaluation of competency has been ordered, the date an order is filed finding the defendant competent to stand trial;(d) if the defendant is arrested or surrenders on any warrant, the date the defendant is returned to the court;(e) if the defendant has been placed in a preprosecution diversion program, the date a notice is filed in the district court stating that the preprosecution diversion program has been terminated for failure to comply with the terms, conditions, or requirements of the program; or(f) the date the conditions of release are revoked or modified under Rule 5-403 NMRA, that result in the defendant's continued detention or release.(2) Extensions. On a showing of good cause, the court may extend the time limits for holding a grand jury proceeding or preliminary examination for up to sixty (60) days. If the defendant does not consent, the court may extend the time limits in Subparagraph (A)(1) of this rule only on a showing on the record that exceptional circumstances beyond the control of the state or the court exist and justice requires the delay. An extension for exceptional circumstances shall not exceed sixty (60) days. The time enlargement provisions in Rule 5-104 NMRA do not apply to a preliminary examination or grand jury proceeding.(3) Dismissal without prejudice. If a grand jury proceeding or preliminary examination is not held within the time limits in this rule, the court shall dismiss the case without prejudice and discharge the defendant.B.Notice to target; timing.(1)Content. The prosecuting attorney assisting the grand jury shall notify the target of a grand jury investigation in writing that the person is the target of an investigation. The writing shall notify the target of (a) the nature of the alleged crime being investigated;(b) the date of the alleged crime;(c) any applicable statutory citations;(d) the target's right to testify;(e) the target's right not to testify;(f) the target's right to submit exculpatory evidence to the district attorney for presentation to the grand jury; and(g) the target's right to the assistance of counsel during the grand jury investigation. Target notices shall be substantially in the form approved by the Supreme Court.(2)Notice and time. A prosecuting attorney shall use reasonable diligence to notify a person in writing that the person is a target of a grand jury investigation. The target and the target's attorney shall be notified in writing no later than four (4) business days before the scheduled grand jury proceeding if the target is incarcerated. The target and the target's attorney shall be notified in writing no later than ten (10) business days before the scheduled proceeding if the target is not incarcerated.(3)Notice not required. Notice shall not be required if, before the grand jury proceeding, the prosecuting attorney secures a written order of the grand jury judge determining by clear and convincing evidence that notification may result in flight by the target, result in obstruction of justice, or pose a danger to another person, other than the general public.C.Evidence.(1)Lawful, competent, and relevant evidence. All evidence presented shall be lawful, competent, and relevant, but the Rules of Evidence shall not apply.(2)Exculpatory evidence. The prosecuting attorney shall alert the grand jury to all lawful, competent, and relevant evidence that disproves or reduces a charge or accusation or that makes an indictment unjustified and that is within the knowledge, possession, or control of the prosecuting attorney.(3)Evidence and defenses submitted by target. If the target submits written notice to the prosecuting attorney of exculpatory evidence as defined in Subparagraph (2) of this paragraph, or a relevant defense, the prosecuting attorney shall alert the grand jury to the existence of the evidence.(a)Form of submission. The target's submission shall consist of a factual and non-argumentative description of the nature of any tangible evidence and the potential testimony of any witnesses, along with the names and contact information of any witnesses necessary to provide the evidence. The target shall provide its submission to the prosecuting attorney by letter substantially in accordance with Form 9-219 NMRA ("Grand Jury Evidence Alert Letter").(b)Cover letter. The target's submission to the prosecuting attorney shall be accompanied by a cover letter, which will not go to the grand jury. The cover letter may include proposed questions and should include any contextual information, any arguments about the propriety or significance of the requested evidence and defenses, and any other matters that may be helpful to the prosecutor or the grand jury judge.(c)Timing. The target's written notice of evidence shall be provided to the prosecuting attorney no less than forty-eight (48) hours in advance of the scheduled grand jury proceeding.(4)Review of prosecutor's decision not to alert grand jury to target's evidence or defenses. The prosecuting attorney assisting the grand jury may only be relieved of the duty to alert the grand jury to the target's evidence or defenses by obtaining a court order before the grand jury proceeding. The prosecuting attorney shall file a motion under seal with the grand jury judge, with written notice to the target, stating why the target's submitted evidence is not exculpatory as defined in Subparagraph (2) of this paragraph or stating why the grand jury should not be instructed on the target's requested defenses. A copy of the target's grand jury evidence alert letter and cover letter shall be attached to the motion. The target may file under seal a response to the motion, and, if no response is filed, the grand jury judge may ask the target for a written response, to be filed under seal, and may convene a hearing. The burden is on the prosecuting attorney to show that the proposed evidence is not exculpatory as defined in Subparagraph (2) of this paragraph. The grand jury judge will give the prosecuting attorney clear direction on how to proceed before the grand jury, making a record of the decision.D.Instructions to grand jury.(1)Elements and defenses. The prosecuting attorney who is assisting the grand jury shall provide the grand jurors with instructions setting forth the elements of each offense being investigated and the definitions of any defenses raised by the evidence.(2)Other instructions. The prosecuting attorney shall provide the grand jury with other instructions that are necessary to the fair consideration by the grand jury of the issues presented.E.Record. All proceedings in the grand jury room shall be recorded, but the deliberations of the grand jury shall not be recorded. Copies of any documentary evidence and any target's Grand Jury Evidence Alert Letter which was presented to the grand jury shall be made part of the record.F.Review by the district court.(1)Supervisory authority. The district court has supervisory authority over all grand jury proceedings.(2)Scope of review. Failure to follow the procedures set forth in this rule shall be reviewable in the district court. The weight of the evidence on 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. N.M. R. Crim. P. Dist. Ct. 5-302.2
Adopted by Supreme Court Order No. 10-8300-015, effective for target notices filed on or after May 14, 2010; as amended by Supreme Court Order No. 18-8300-004, effective 4/23/2018; Rule 5-302A recompiled and amended as Rule 5-302.2 by Supreme Court Order No. 22-8300-023, effective 12/31/2022; as amended by Supreme Court Order No. S-1-RCR-2023-00024, effective 4 for all cases pending or filed on or after 12/31/2023.Committee commentary. - The district court may extend the time limits for commencing and holding a grand jury proceeding if the defendant does not consent only on a showing of exceptional circumstances beyond the control of the state or the court. "'Exceptional circumstances,' . . . would include conditions that are unusual or extraordinary, such as death or illness of the judge, prosecutor, or defense attorney immediately preceding the commencement of the [proceeding]; or other circumstances that ordinary experience or prudence would not foresee, anticipate, or provide for." Rules 6-506 and 7-506 NMRA comm. cmt.
Under Subparagraph (C)(4) of this rule, the grand jury judge must carefully consider any filings in the case and consider the options before ruling on a prosecutor's request to be relieved of the duty to alert the grand jury to the target's evidence or defenses. The options available to the grand jury judge in considering a request under Paragraph (C)(4) include requesting a response from the defense, holding a hearing on the prosecutor's request or ruling on the request without a hearing.
There is no pre-indictment right of appeal from a decision of the grand jury judge under NMSA 1978, Section 31-6-11(B) (2003). See Jones v. Murdoch, 2009-NMSC-002, ¶¶ 40-41, 145 N.M. 473, 200 P.3d 523. Nevertheless, "in an extreme case, a party may still seek review in [the Supreme] Court through an extraordinary writ proceeding." Id. ¶ 41. A party seeking an extraordinary writ should be aware of "the high standard and discretionary nature associated with granting such relief" and the writ petition should be filed without undue delay. See id.
[Adopted by Supreme Court Order No. 13-8300-016, effective for all cases pending or filed on or after December 31, 2013; Rule 5-302A recompiled and amended as Rule 5-302.2 by Supreme Court Order No. 22-8300-023, effective December 31, 2022; as amended by Supreme Court Order No. S-1-RCR-2023-00024, effective for all cases pending or filed on or after December 31, 2023.]
ANNOTATIONS The 2018 amendment, approved by Supreme Court Order No. 18-8300-004, effective April 23, 2018, amended the district court's scope of review of grand jury proceedings; and in Subparagraph F(2), after "assisting the grand jury", deleted "but the grand jury proceedings, the indictment, and the lawfulness, competency, and relevancy of the evidence shall be reviewable by the district court". Selection of a grand jury must be under the control of the district court. - The district court is the constitutionally and statutorily designated neutral entity that is assigned the responsibility for determining which grand jurors sit in any particular case to decide the question of indictment. The district court may not delegate its core statutory responsibilities over grand jury proceedings. De Leon v. Hartley, 2014-NMSC-005. Where, after the orientation and swearing of the grand jurors, the district court transferred the process of selecting and excusing jurors to the district attorney's office without further apparent involvement by the district court; the list of grand jurors used by the district attorney's office contained notations that suggested that someone in the district attorney's office excused several grand jurors; and the district court found that there was no fraud or prejudice to defendant in the conduct of the grand jury proceeding and denied defendant's pretrial motion to quash the indictment, the district court should have quashed the indictment irrespective of whether any actual fraud or prejudice was established when the improper involvement of the district attorney in the excusal of grand jurors was brought to the attention of the district court. De Leon v. Hartley, 2014-NMSC-005. Remedy for irregularities in the grand jury selection process. - When undeniable irregularities in the grand jury process are brought to the court's attention in advance of trial, a grand jury indictment resulting from that process must be quashed. De Leon v. Hartley, 2014-NMSC-005. 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. Language in rule purporting to give New Mexico courts the authority to review grand jury proceedings is withdrawn. - A broad reading of certain language in Rule 5-302A(F)(2) could be argued as authorizing postindictment evidentiary review beyond statutory authorization and was not intended when the rule was adopted. The language "but the grand jury proceedings, the indictment, and the lawfulness, competency, and relevancy of the evidence shall be reviewable by the district court" in the promulgated version of Rule 5-302A(F)(2) was withdrawn immediately. State v. Martinez, 2018-NMSC-031. 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.