N.M. R. Crim. P. Dist. Ct. 5-302.3

As amended through August 23, 2024

Rule 5-302.3 - Citizen grand jury proceedings

A.Citizen petition to convene a grand jury. Under Article II, Section 14 of the New Mexico Constitution, the district court shall order a grand jury to convene on the filing of a petition to investigate criminal conduct or malfeasance proscribed by state law that is signed by not less than the greater of two-hundred (200) registered voters or two percent (2%) of the registered voters of the county. A petitioner may use Form 9-200 NMRA.

B.Duties of the district court. The district court must to make both a factual determination that a citizen petition to convene a grand jury meets the procedural requirements of Article II, Section 14 and a legal determination that the petition seeks a legitimate inquiry into alleged criminal conduct or malfeasance proscribed by state law

(1)Verification of petition. The district court must verify the signatures contained in the petition. The district court may verify the signatures by any number of methods, including but not limited to:

(a) requiring each signatory to provide an address of record;

(b) verifying other identifying information such as dates of birth and social security numbers;

(c) a handwriting comparison by a qualified witness; or

(d) obtaining testimony from questionable signatories.

(2)Validity of petition. The petition to convene a grand jury must identify with reasonable specificity the alleged criminal conduct or unlawful malfeasance to be investigated. The district court must determine whether the petition seeks to investigate conduct that lies within the permissible scope of grand jury inquiry. If the petition does not reasonably specify alleged conduct that, if true, would warrant a true bill of indictment, the district court must deny the petition.

C.Assistance of prosecuting attorney. On the filing of the petition, the district court shall assign the district attorney or the district attorney's assistants, unless otherwise disqualified, to assist the district court in notifying the target of the grand jury petition and, if the grand jury is convened, in carrying out the duties of the grand jury.

D.Notice to target; timing. If a target of the potential grand jury investigation is identifiable in the citizen petition, the prosecuting attorney assisting the district court shall use reasonable diligence to notify the target in writing no later than thirty (30) days before the scheduled hearing on the validity of the petition. Target notices shall be substantially in the form approved by the Supreme Court. The writing shall notify the target of

(1) the existence of a citizen petition to convene a grand jury to investigate the target for an alleged crime;

(2) the nature of the crime alleged in the petition;

(3) the date of the alleged crime;

(4) any applicable statutory citations;

(5) the target's right to intervene;

(6) the target's right to testify in a subsequent grand jury proceeding;

(7) the target's right not to testify in a subsequent grand jury proceeding;

(8) the target's right to submit exculpatory evidence to the district attorney for presentation to the grand jury in a subsequent grand jury proceeding; and

(9) the target's right to the assistance of counsel during a subsequent grand jury investigation.

E.Opportunity to intervene. Before ruling on the validity of the grand jury petition, the district court shall permit any identifiable target of a grand jury investigation initiated by petition to intervene in the matter.

F.Convening a citizen-petition grand jury. If the district court determines both that the petition meets the procedural requirements of Article II, Section 14 and seeks to investigate reasonably specific alleged criminal conduct or unlawful malfeasance, the the court shall convene a grand jury in accordance with Sections 31-6-1 to -15 NMSA 1978, unless the district court elects to submit the matter to a grand jury that has already been convened, and shall direct the grand jury to make inquiry into all potential violations of law described in the petition that the judge determines are proper subjects of grand jury investigation, under Section 31-6-9 NMSA 1978.

N.M. R. Crim. P. Dist. Ct. 5-302.3

Adopted by Supreme Court Order No. 15-8300-010, effective for all cases pending or filed on or after December 31, 2015; Rule 5-302B recompiled and amended as Rule 5-302.3 by Supreme Court Order No. 22-8300-023, effective for all cases pending or filed on or after 12/31/2022; as amended by Supreme Court Order No. S-1-RCR-2023-00023, effective for all cases pending or filed on or after 12/31/2023.

Committee commentary. - In Convisser v. Ecoversity, 2013-NMSC-039, ¶ 1, 308 P.3d 125, the New Mexico Supreme Court held that "determining whether a grand jury petition is supported by the requisite number of 'registered voters' is a judicial function calling for the exercise of judicial discretion." Under Article II, Section 14 of the New Mexico Constitution, "a grand jury shall be ordered to convene by such judge upon the filing of a petition therefor signed by not less than the greater of two hundred registered voters or two percent of the registered voters of the county." The easiest way to verify whether a petition meets this requirement is to require signatories to provide an address. See Convisser, 2013-NMSC-039, ¶ 26 (stating that other states with citizen-initiated grand jury provisions most commonly verify signatories through the use of voter addresses). However, voters' addresses are not required. The district court may use other verification aids such as dates of birth, social security numbers, handwriting comparisons by qualified witnesses, or testimony from questionable signatories. See id. ¶ 27.

Paragraph B of this rule is consistent with New Mexico case law that requires a district court to determine whether a grand jury inquiry fits within the jurisdiction and scope of the grand jury regarding the substance of the allegation. See Dist. Ct. of Second Jud. Dist. v. McKenna, 1994- NMSC-102, ¶ 9, 118 N.M. 402, 881 P.2d 1387 ("[T]he petition to convene a grand jury must contain sufficient information to enable the court to determine whether the petitioners seek a legitimate inquiry into alleged criminal conduct or malfeasance of a public official or whether the petitioners seek nothing more than a witch hunt."); Cook v. Smith, 1992-NMSC-041, ¶ 14, 114 N.M. 41, 834 P.2d 418 ("[T]he district court must make, in the first instance, a determination of the legality of the proposed grand jury inquisition. . . . [I]t is sufficient that the petition on its face delimit an area of inquiry that colorably lies within the permissible scope of grand jury inquiry."). Subparagraph (B)(2) of this rule provides additional guidance to the district court on how to conduct that analysis under current case law.

On the filing of the petition to convene a grand jury, the district court shall assign the district attorney or the district attorney's assistants, unless otherwise disqualified, to assist the district court in notifying the target of the grand jury petition and, if the grand jury is convened, in carrying out the duties of the grand jury. See NMSA 1978, § 31-6-7(C) (2003). If a district attorney is disqualified for ethical reasons or other good cause under Paragraph C of this rule, of this rule, the district attorney may appoint a practicing member of the state bar to act as special assistant district attorney who shall have authority to act only in the specific case or matter for which the appointment was made. See NMSA 1978, § 36-1-23.1(1984). If the district attorney's office fails or refuses to act under Paragraph C of this rule, the attorney general is authorized to act on behalf of the state. See NMSA 1978, § 8-5-3(1933).

[Adopted by Supreme Court Order No. 15-8300-010, effective for all cases pending or filed on or after December 31, 2015; Rule 5-302B recompiled and amended as Rule 5-302.3 by Supreme Court Order No. 22-8300-023, effective for all cases pending or filed on or after December 31, 2022; as amended by Supreme Court Order No. S-1-RCR-2023-00023, 9 effective for all cases pending or filed on or after December 31, 2023.]