N.M. R. Child. Ct. 10-245
N.M. R. Child. Ct. 10-245
Committee commentary. - A written jury demand is no longer required for delinquency proceedings. See State v. Eric M., 1996-NMSC-056, 122 N.M. 436, 925 P.2d 1198. In State v. Eric M., the Supreme Court held that juveniles have a state constitutional right to a jury trial and must be accorded that right absent an understanding and intelligent decision to waive such right.
[As amended by Supreme Court Order No. 08-8300-042, effective January 15, 2009.]
ANNOTATIONS The 2014 amendment, approved by Supreme Court Order No. 14-8300-015, effective December 31, 2014, in the title, added "delinquency proceedings". The 2008 amendment, approved by Supreme Court Order No. 08-8300-042, effective January 15, 2009, in Paragraph A, changed the title from "Demand" to "Waiver", deleted the rule which provided that a demand for a trial had to be filed within 10 days from the date the petition was filed or from the appointment of an attorney for the respondent or entry of appearance by counsel for respondent, whichever was later and that if a demand was not timely filed, trail by jury was waived, and added the current rule. The 1995 amendment, effective September 1, 1995, added "delinquency proceedings" in the rule heading and, in the first sentence in Paragraph B, substituted "delinquency proceedings" for "children's court", and changed the number of preemptory challenges allowed from three and five to two and three, respectively. Recompilations. - Pursuant to Supreme Court Order No. 08-8300-042, Rule 10-228 NMRA was recompiled as Rule 10-245 NMRA, effective January 15, 2009.
Cross references. - For jury trial on issue of alleged delinquent acts, see Section 32A-2-16 NMSA 1978. Right to trial by jury. - Since at the time of the adoption of the state constitution, a juvenile could not have been imprisoned without trial by jury, no change in terminology or procedure may be invoked whereby incarceration might now be accomplished in manner involving the denial of the right to a jury trial. Peyton v. Nord, 1968-NMSC-027, 78 N.M. 717, 437 P.2d 716. The children's court erred in concluding that a child was not entitled to a jury trial when he failed to make a timely jury demand as provided in Paragraph A; the rule can do no more than encourage a counseled decision at an early stage of the proceedings. State v. Eric M., 1996-NMSC-056, 122 N.M. 436, 925 P.2d 1198. Timeliness of demand. - Since the state was unable to establish the date the child's attorney was served with a copy of her appointment, the 10-day period within which to demand a jury trial began to run on the day following the appearance of the attorney at the detention hearing. In re Ruben O., 1995-NMCA-051, 120 N.M. 160, 899 P.2d 603. Waiver of jury trial. - Where a child has a right to a trial by jury, such right may be waived, but only by an express waiver. State v. Doe, 1980-NMCA-091, 94 N.M. 637, 614 P.2d 1086. Jury trial may be waived, but waiver should be permitted only when the juvenile has been advised by counsel and it is amply clear that an understanding and intelligent decision has been made; if the juvenile, after considering the advantages and disadvantages and having been advised by counsel, waives trial by jury, he would enjoy the benefits generally felt to attach through trial to court. Peyton v. Nord, 1968-NMSC-027, 78 N.M. 717, 437 P.2d 716. The state has no right grounded in either state statute, court rule, or the state constitution to impose a right of concurrence on the right of a child to waive his jury trial. In re Christopher K., 1999-NMCA-157, 128 N.M. 406, 993 P.2d 120. Law reviews. - For survey, "Children's Court Practice in Delinquency and Need of Supervision Cases Under the New Rules," see 6 N.M.L. Rev. 331 (1976). Am. Jur. 2d, A.L.R. and C.J.S. references. - 47 Am. Jur. 2d Juvenile Courts §§43, 88.