N.M. R. Crim. P. Metro. Ct. 7-202

As amended through August 23, 2024

Rule 7-202 - Preliminary examination

A.Time.

(1)Time limits. A preliminary examination shall be scheduled and held 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) if an evaluation of competency has been ordered, the date an order is filed in the metropolitan court finding the defendant competent to stand trial;

(c) if the defendant is arrested for failure to appear or surrenders in this state for failure to appear, the date the arrest warrant is returned to the court;

(d) if the defendant is arrested for failure to appear or surrenders in another state or country for failure to appear, the date the defendant is returned to this state;

(e) if the defendant has been placed in a preprosecution diversion program, the date a notice is filed in the metropolitan 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) if the defendant is arrested upon a bench warrant for failure to comply with conditions of release or if the defendant's pretrial release is revoked under Rule 7-403 NMRA, the date the defendant is remanded into custody, provided that in no event a preliminary examination shall occur later than required by any of the events in Subparagraph (A)(1) of this rule.

(2)Extensions. Upon a showing of good cause, the court may extend the time limits for holding a 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 upon a showing on the record that exceptional circumstances beyond the control of the state or the court exist and justice requires the delay. The time enlargement provisions in Rule 7-104 do not apply to a preliminary examination.

(3)Dismissal without prejudice. If a 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.Procedures. If the court determines that a preliminary examination must be conducted, the following procedures shall apply.

(1)Counsel. The defendant has the right to assistance of counsel at the preliminary examination.

(2)Discovery. The prosecution shall promptly make available to the defendant any tangible evidence in the prosecution's possession, custody, and control, including records, papers, documents, and recorded witness statements that are material to the preparation of the defense or that are intended for use by the prosecution at the preliminary examination. The prosecution is under a continuing duty to disclose additional evidence to the defendant as such evidence becomes available to the prosecution.

(3)Subpoenas. Subpoenas shall be issued for any witness required by the prosecution or the defendant.

(4)Cross-examination. The witness shall be examined in the defendant's presence, and both the prosecution and the defendant shall be afforded the right to cross-examine adverse witnesses.

(5)Rules of Evidence. The Rules of Evidence apply, subject to any specific exception in the Rules of Criminal Procedure for the Metropolitan Courts.

C.Recording of examination. A recording shall be made of the preliminary examination. If the defendant is bound over for trial in the district court, the recording shall be filed with the clerk of the district court with the bind-over order. Any party may request a duplicate of the recording from the district court within six (6) months following the preliminary examination.

D.Findings of court.

(1) If, upon completion of the examination, the court finds that there is no probable cause to believe that the defendant has committed a felony offense, the court shall dismiss without prejudice all felony charges for which probable cause does not exist and discharge the defendant as to those offenses.

(2) If the only remaining charges are within metropolitan court trial jurisdiction, the court shall either conduct an arraignment immediately on the remaining charges or shall hold an arraignment within the time limits set forth in Rule 7-506(A) NMRA, and the case shall then proceed under the Rules of Criminal Procedure for the Metropolitan Courts.

(3) If the court finds that there is probable cause to believe that the defendant committed one or more offenses not within metropolitan court trial jurisdiction, it shall bind the defendant over for trial in the district court. All misdemeanor offenses charged in the complaint shall be included in the bind-over order.

E.Transfer to district court.

(1) If the defendant is bound over for trial by the metropolitan court, the district attorney shall file the following with the metropolitan court:

(a) a copy of the information filed in the district court; and

(b) if an order is entered by the district court extending the time for filing an information, a copy of such order.

(2) When a copy of the information filed in district court is filed in the metropolitan court, the metropolitan court shall at that time transfer the metropolitan court record, along with the bind-over order, to the district court.

(3) If an information is not timely filed in the district court in accordance with the requirements of Rule 5-201(C), the metropolitan court, upon motion or of its own initiative, shall dismiss the charges without prejudice within two (2) days of the expiration of the applicable filing deadline.

F.Effect of indictment. If the defendant is indicted prior to a preliminary examination for the offense pending in the metropolitan court, the district attorney shall forthwith advise the metropolitan court and the metropolitan court shall take no further action in the case, provided that any conditions of release set by the metropolitan court shall continue in effect unless amended by the district court.

G.Bail bond. Unless the defendant is discharged, the metropolitan court shall retain jurisdiction over the defendant and the bond until an information or indictment is filed in the district court or until twelve (12) months after the preliminary examination, whichever occurs first.If the defendant is bound over for trial by the metropolitan court or indicted, the metropolitan court shall transfer any bond to the district court. Unless the proceedings are remanded to the metropolitan court, all further action relating to the bond shall be taken in the district court.

N.M. R. Crim. P. Metro. Ct. 7-202

As amended, effective 10/1/1992;11/1/1995;2/16/2004; as amended by Supreme Court Order No. 14-8300-020, effective for all cases pending or filed on or after12/31/2014; as amended by Supreme Court Order No. 17-8300-016, effective for all cases pending or filed on or after12/31/2017; as amended by Supreme Court Order No. 20- 7 8300-008, effective for all cases pending or filed on or after 12/31/2020.

Committee commentary. - Under Subparagraph (A)(2), the district court may extend the time limits for holding a preliminary examination if the defendant does not consent only upon 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 trial; or other circumstances that ordinary experience or prudence would not foresee, anticipate, or provide for." See Committee commentary to Rule 7-506 NMRA.

Article II, Section 14 of the New Mexico Constitution guarantees that the state cannot prosecute a person for a "capital, felonious or infamous crime" without filing either a grand jury indictment or a criminal information. If the state is going to proceed by criminal information, the defendant is entitled to a preliminary examination. See N.M. Const. art. II, § 14. At the preliminary examination, "the state is required to establish, to the satisfaction of the examining judge, two components: (1) that a crime has been committed; and (2) probable cause exists to believe that the person charged committed it." State v. White, 2010-NMCA-043, ¶ 11, 148 N.M. 214, 232 P.3d 450.

If the court dismisses a criminal charge for failure to comply with the time limits in Paragraph A of this rule or for lack of probable cause under Paragraph D of this rule, the dismissal is without prejudice, and the state may later prosecute the defendant for the same offense by filing either an indictment or an information. See State v. Chavez, 1979-NMCA-075, ¶ 23, 93 N.M. 270, 599 P.2d 1067; see also State v. Peavler, 1975-NMSC-035, ¶ 8, 88 N.M. 125, 537 P.2d 1387 (explaining that, following dismissal of an indictment, "the State can choose whether to proceed by indictment or information"); State v. Isaac M., 2001-NMCA-088, ¶ 14, 131 N.M. 235, 34 P.3d 624 (concluding that the right to be free from double jeopardy does not preclude "multiple attempts to show probable cause" because "it is settled law that jeopardy does not attach pretrial"). Cf. Fed. R. Crim. P. 5.1(f) ("If the magistrate judge finds no probable cause to believe an offense has been committed or the defendant committed it, the magistrate judge must dismiss the complaint and discharge the defendant. A discharge does not preclude the government from later prosecuting the defendant for the same offense.").

Discharging the defendant means relieving the defendant of all obligations to the court that originated from a criminal charge. Thus, to discharge a defendant the court must release the defendant from custody, relieve the defendant of all conditions of release, and exonerate any bond.

In State v. Lopez, 2013-NMSC-047, ¶ 26, 314 P.3d 236, the Supreme Court held that a defendant does not have a constitutional right of confrontation at the preliminary examination, overruling Mascarenas v. State, 1969-NMSC-116, 80 N.M. 537, 458 P.2d 789, to the extent Mascarenas held otherwise. Paragraph B of this rule was amended in 2014 to clarify that Lopez did not affect the other rights and procedures that apply to preliminary examinations. See Lopez, 2013-NMSC-047, ¶ 26. The list of procedures and rights in Paragraph B of this rule is not intended to be a comprehensive list of the defendant's rights at the preliminary examination.

First, Lopez did not alter the prosecution's duty to provide discovery, as available, to the defendant. See Mascarenas, 1969-NMSC-116, ¶ 14 (holding that if the state is going to call a witness to testify at the preliminary examination, then the defendant has a right to inspect any prior statements or reports made by such witness that are in the possession of the prosecution). However, the defendant's right to discovery prior to the preliminary examination is limited to what is available and in the prosecutor's immediate possession. For example, the defendant does not have a right to discover a laboratory report that has not been prepared and is not ready for use at the preliminary examination.

Additionally, the Rules of Evidence remain generally applicable to preliminary examinations, subject to specific exceptions for certain types of evidence not admissible at trial. See Lopez, 2013-NMSC-047, ¶ 4 (noting that the "Rules of Evidence generally govern proceedings in preliminary examinations" but explaining that Rule 6-608(A) NMRA, which is identical to Rule 7-608(A) NMRA, "provides a specific exception to our hearsay rule for admissibility" of certain types of written laboratory reports).

The defendant also retains the right to call and obtain subpoenas for witnesses and to cross-examine the state's witnesses. Thus, although Rule 7-608(A) may permit the state to use a laboratory report at the preliminary examination without calling the laboratory analyst as a witness, the defendant retains the right "to call witnesses to testify as to the matters covered in such report." Rule 7-608(B). And the preliminary examination remains "a critical stage of a criminal proceeding" at which "counsel must be made available to the accused." State v. Sanchez, 1984-NMCA-068, ¶ 10, 101 N.M. 509, 684 P.2d 1174.

[Adopted by Supreme Court Order No. 14-8300-020, effective for all cases pending or filed on or after December 31, 2014; as amended by Supreme Court Order No. 17-8300-016, effective for all cases pending or filed on or after December 31, 2017.]

ANNOTATIONS The 2017 amendment, approved by Supreme Court Order No. 17-8300-016, effective December 31, 2017, revised the time limits for scheduling and holding a preliminary examination, revised the rule regarding when a district court may extend the time limits for holding a preliminary examination if the defendant does not consent, and revised the committee commentary; in Paragraph A, Subparagraph A(1), in the introductory clause, after "shall be", added "scheduled and", after "in any event", deleted "not" and added "no", after "(10) days", deleted "after the first appearance", after "(60) days", deleted "after the first appearance", and after "not in custody", added "of whichever of the following events occurs latest", added Subparagraphs A(1)(a) through A(1)(f), and in Subparagraph A(2), after "upon a showing", added "on the record", after "that", deleted "extraordinary" and added "exceptional", and after "circumstances", added "beyond the control of the state or the court"; and in Paragraph D, Subparagraph D(2), after "jurisdiction", added "the court shall either conduct an arraignment immediately on the remaining charges or shall hold an arraignment within the time limits set forth in Rule 7-506(A) NMRA, and", and after "the case shall", added "then". The 2014 amendment, approved by Supreme Court Order No. 14-8300-020, effective December 31, 2014, provided for extensions of time for holding a preliminary hearing beyond the ten day time limit; provided for appointment of counsel and discovery; provided for the application of the Rules of Evidence; added Paragraph A; in Paragraph B, deleted the title, "Subpoena of witnesses" and added the current title and in the introductory sentence, after "must be conducted", added "the following procedures shall apply"; added Paragraphs B (1) and (2), in Paragraph B (3), after "required by the", deleted "parties" and added "prosecution or the defendant", in Paragraph B (4), added the title and after "the defendant's presence and", deleted "may be cross-examined" and added the remainder of the sentence, and added Paragraph B (5); in Paragraph C, deleted the former title "Record of hearing" and added the current title, in the first sentence, changed "record" to "recording" in two places, in the third sentence, deleted "A" and added "Any party may request a", after "duplicate of the", deleted "tape may be requested by any party" and added "recording from the district court", and after "the preliminary", deleted "hearing" and added "examination", and deleted the former fourth sentence which provided that the taped record could be disposed of six months after the preliminary hearing; in Paragraph D (1), after "of the examination", deleted "it appears to", after "examination, the court", added "finds", after "defendant has committed", deleted "an" and added "a felony", after "the court shall", added "dismiss without prejudice all felony charges for which probable cause does not exist and", and after "discharge the defendant", added "as to those offenses", added Paragraph D (2), in Paragraph D (3) in the first sentence, after "the defendant committed", deleted "an offense" and added "one or more offenses" and after "over for trial", added "in the district court" and added the second sentence; deleted former Paragraph D which is restated in Paragraph A (1); in Paragraph E (1), in the introductory sentence, after "shall file", added "the following" and after "with the", deleted "clerk of the", in Paragraph E (1)(b), deleted the former second sentence which required the court to set a trial if there was probable cause that defendant committed an offense within the metropolitan court's jurisdiction, added Paragraph E (2); and in Paragraph F, after "forthwith advise the", deleted "judge" and added "metropolitan court", after "metropolitan court and the", deleted "judge" and added "metropolitan court", and after "release set by the", deleted "judge" and added "metropolitan court". The 2003 amendment, effective February 16, 2004, added the last sentence of Paragraph F. The 1995 amendment, effective November 1, 1995, added Paragraph F. The 1992 amendment, effective for cases filed in the metropolitan courts on and after October 1, 1992, rewrote Paragraph B.

For forms on notice of preliminary examination, see Rule 9-206 NMRA. For form on bind-over order, see Rule 9-207 NMRA. Am. Jur. 2d, A.L.R. and C.J.S. references. - Civil liability of witness in action under 42 USCS § 1983 for deprivation of civil rights, based on testimony given at pretrial criminal proceeding, 94 A.L.R. Fed. 892.