N.M. R. Crim. P. Dist. Ct. 5-606
N.M. R. Crim. P. Dist. Ct. 5-606
Committee commentary. - Paragraph A of this rule was derived from Paragraph A of Rule 1-047 NMRA and is consistent with American Bar Association Standards Relating to Trial by Jury, Section 2.7 (Approved Draft 1968).
Paragraphs B and C of this rule encompass that portion of Section 38-5-14 NMSA 1978 which relates to challenges of jurors in criminal cases.
There are a number of different procedures followed by state and federal courts in allowing the exercise of peremptory challenges. The commentary to the American Bar Association Standards Relating to Trial by Jury, Section 2.6 (Approved Draft 1968) states,"The details as to how peremptories are to be exercised in a given case must be left to the discretion of the trial judge, as different cases, particularly those with multiple defendants, pose unique problems . . . ."
The New Mexico Supreme Court Committee, after considering a number of alternatives, concluded that the exercise of peremptory challenges in cases where there are multiple defendants probably should be left to the trial judge. One of the following methods should be chosen by the trial judge if, prior to the selection of any jurors, the defendants cannot agree who will exercise challenges for the defense:
(1) the judge may allow the challenges to be exercised alternately, beginning with the defendant whose name first appeared in the information or indictment. The problem with this method is that it is possible that one defendant will exercise all of the challenges allowed;
(2) the judge may divide the total number of defense challenges as equally as possible between all of the defendants beginning with the defendant whose name first appears on the information or indictment. The challenges would then be exercised alternately by the defendants; or
(3) the judge may require all defendants to agree on the exercise of a challenge before it is exercised on a juror.
See the commentary to the American Bar Association Standards Relating to Trial by Jury, Section 2.6 (Approved Draft 1968). See also State v. Boeglin, 90 N.M. 93, 559 P.2d 1220 (Ct. App. 1977), for an alternate method of exercising peremptory challenges.
Paragraph E of this rule was added to clarify the procedure for using and retaining juror qualification and questionnaire forms. In cases where an issue may be raised on appeal concerning jury selection or a particular juror, the appellant may consider filing a motion in the district court within ninety (90) days of the jury verdict to request an order requiring the retention of the juror qualification and questionnaire forms for inclusion in the record proper filed in the appellate court. Paragraph E of this rule supersedes administrative regulations concerning the retention of juror qualification and questionnaire forms.
[As amended by Supreme Court Order No. 13-8300-042, effective for all cases pending or filed on or after December 31, 2013; as amended by Supreme Court Order No. 18-8300-008, effective December 31, 2018.]
ANNOTATIONS The 2018 amendment, approved by Supreme Court Order No. 18-8300-008, effective December 31, 2018, provided additional privacy protections and destruction requirements for information contained in juror questionnaire forms, provided an exception to the confidentiality rules, made certain nonsubstantive changes, and revised the committee commentary; in Paragraph E, after the semicolon, added "certification of compliance with privacy requirements", and after "Supreme Court", added "which shall be subject to the following protections:", added subparagraph designations "(1)" and "(2)", in Subparagraph E(1), after "questionnaire forms,", added "including any electronic copies", after "possession of the court", deleted "as well as in the possession of others, including", and after "individual or entity", added "shall be kept confidential unless ordered unsealed under the provisions in Rule 5-123 NMRA", in Subparagraph E(2), added "All completed juror qualification and questionnaire forms, including any electronic copies, in the possession of the court, attorneys, parties, and any other individual or entity", and after "shall be destroyed", added "according to the following deadlines:", added subparagraph designation "(a)", in Subparagraph E(2)(a), added "All copies in the possession of the court shall be destroyed", and after "retention", deleted "of the form" and added "for a longer period of time; and", and added Subparagraphs E(2)(b) and E(3); and in Paragraph F, added the last sentence of the paragraph relating to confidentiality and destruction protections. The 2013 amendment, approved by Supreme Court Order No. 13-8300-042, effective December 31, 2013, required prospective jurors to complete an approved juror qualification and questionnaire form and supplemental questionnaires, if ordered by the court; provided for the destruction of juror qualification and questionnaire forms; and added Paragraphs E and F. The 2004 amendment, effective April 19, 2004, in Subparagraph (1) of Paragraph D, inserted present Sub-subparagraph (a), redesignated former Sub-subparagraphs (a) and (b) as present Sub-subparagraphs (b) and (c), and deleted "death or" preceding "life" in Sub-subparagraph (b). Compiler's notes. - This rule is similar to Rule 24 of the Federal Rules of Criminal Procedure.
For drawing and empaneling jurors, see Rule 5-605 NMRA and Section 38-5-1 NMSA 1978 et seq. Challenges were discriminatory. - Where defendant, who was Hispanic, used ten of fourteen peremptory challenges to strike every single white male from the jury pool; the state's key witness was a young female; defendant explicitly acknowledged that defendant's trial strategy was to strike men in lieu of women because fathers don't judge the credibility of young females as well as mothers do and because an analytical woman would probably give defendant a fairer shake; and although defendant claimed that defendant was striking all male venirepersons with prior jury experience, regardless of race, defendant had previously accepted non-white male venirepersons with prior jury experience, the trial court reasonably found that defendant's facially neutral explanation was pretextual and that defendant's trial strategy was discriminatory and racially motivated. State v. Salas, 2010-NMSC-028, 148 N.M. 313, 236 P.3d 32. Where the state used its peremptory challenges to strike individual jurors on the ground that the juror fell asleep during voir dire, the juror was involved in crimes prosecuted by the prosecutor, the juror's son and granddaughter were defendants in the judicial district, the juror was familiar with a potential witness, and the juror's uncle previously had been represented by defense counsel, the state's explanations were not inherently discriminatory or pretextual. State v. Salas, 2010-NMSC-028, 148 N.M. 313, 236 P.3d 32. Excusal for part of trial. - Paragraph C of this rule does not contemplate the excusal of prospective jurors for only one part of a trial if they have an inability to follow the court's instructions on a limited issue. State v. Fry, 2006-NMSC-001, 138 N.M. 700, 126 P.3d 516. Rights of an accused in respect to panel and final jury are (1) that there be no systematic, intentional exclusion of any section of the community and (2) that there be left as fitted for service no biased or prejudiced person. State v. Ortiz, 1975-NMCA-112, 88 N.M. 370, 540 P.2d 850. There is no requirement that petit juries actually chosen must mirror the community and reflect the various distinctive groups in the population. Defendants are not entitled to a jury of any particular composition. State v. Ortiz, 1975-NMCA-112, 88 N.M. 370, 540 P.2d 850. Distinctive community groups may not be systematically excluded from the jury wheels, pools of names, panels or venires from which juries are drawn, which jury pools should be reasonably representative of the community. State v. Ortiz, 1975-NMCA-112, 88 N.M. 370, 540 P.2d 850. One is not entitled to relief simply because there isn't a member of his race on the jury unless he shows that the absence resulted from purposeful discrimination; however, one is entitled to relief regardless of palpable guilt if he shows actual exclusion resulting from purposeful discrimination based on race or economic status. State v. Tapia, 1970-NMCA-037, 81 N.M. 365, 467 P.2d 31 (decided under former law). Defendant has right to be present for jury challenges. - The trial court erred in denying defendant the right to be present when challenges to the jury were made, and the error mandated reversal and remand for a new trial. State v. Garcia, 1980-NMSC-132, 95 N.M. 246, 620 P.2d 1271. Court's discretion to excuse juror for cause. - The trial court has the duty of seeing that there is a fair and impartial jury and in doing so, it must exercise discretion. The trial court's decision not to excuse a juror will not be disturbed unless there is a manifest error or a clear abuse of discretion. State v. Valdez, 1972-NMCA-014, 83 N.M. 632, 495 P.2d 1079, aff'd, 1972-NMSC-029, 83 N.M. 720, 497 P.2d 231, cert. denied, 409 U.S. 1077, 93 S. Ct. 694, 34 L. Ed. 2d 666 (1972) (decided under former law). It is within the trial court's discretion as to whether a prospective juror should be excused. The trial court's decision will not be disturbed unless there is a manifest error or a clear abuse of discretion. State v. Cutnose, 1975-NMCA-021, 87 N.M. 300, 532 P.2d 889, overruled on other grounds by State v. McCormack, 1984-NMSC-006, 100 N.M. 657, 674 P.2d 1117. It is for the trial court to determine whether a juror should be replaced because disqualified to perform the duties of a juror. The trial court's ruling will be reversed only for abuse of discretion. State v. Padilla, 1978-NMCA-020, 91 N.M. 451, 575 P.2d 960. Excusing juror prejudiced in defendant's favor. - The trial court committed no error in excusing a prospective juror who indicated that he might be favorably prejudiced by the fact that defendants were members of the American Indian movement. Defendants were entitled to an impartial jury. They were not entitled to a juror prejudiced in their favor. State v. Cutnose, 1975-NMCA-021, 87 N.M. 300, 532 P.2d 889, overruled on other grounds by State v. McCormack, 1984-NMSC-006, 100 N.M. 657, 674 P.2d 1117. Excluding jurors opposed to capital punishment. - Allowing the prosecutor in a first-degree murder trial to voir dire prospective jurors on their feelings regarding capital punishment and excusing for cause those jurors who were opposed to capital punishment did not deprive defendant of his right to trial by a cross-section of the community. State v. Ortiz, 1975-NMCA-112, 88 N.M. 370, 540 P.2d 850. Since data about the public's attitude towards the death penalty is still in a tentative and fragmentary condition the appeals court was unable to conclude that the defendant was denied a jury that was impartial on the issue of guilt or innocence because those prospective jurors who were opposed to capital punishment were excused for cause. State v. Ortiz, 1975-NMCA-112, 88 N.M. 370, 540 P.2d 850. Right to ask relevant questions on voir dire. - The right to an impartial jury carries with it the concomitant right to take reasonable steps to insure that the jury is impartial. One of the most important methods of securing this right is the right to challenge, yet the right to challenge has little meaning if it is unaccompanied by the right to ask relevant questions on voir dire upon which the challenge for cause can be predicated. State v. Ortiz, 1975-NMCA-112, 88 N.M. 370, 540 P.2d 850. Individual voir dire of prospective jurors. - There are times when individual voir dire of prospective jurors is not only helpful but also essential in providing a fair trial, and the determination of whether to allow individual voir dire lies within the discretion of the trial court. State v. Frank, 1979-NMSC-012, 92 N.M. 456, 589 P.2d 1047. Judge's control over voir dire is not judicial bias. - Restrictions on a party's voir dire by the court does not amount to reversible error absent a showing by defendant of some prejudice. Indeed, a judge's express desire to expedite resolution of a matter is not generally an indication of bias against either party. State v. Fernandez, 1994-NMCA-056, 117 N.M. 673, 875 P.2d 1104. Exercise of right of challenge requires knowledge of all relevant matters. - Full knowledge of all relevant and material matters that might bear on possible disqualification of a juror is essential to a fair and intelligent exercise of the right of counsel to challenge either for cause or peremptorily. Mares v. State, 1971-NMSC-106, 83 N.M. 225, 490 P.2d 667 (decided under former law). Where trial court required parties to exercise their peremptory challenges alternately, this violated the rule and is reversible error if defendant has been harmed by the error. Where defendant asserts he was harmed because he exercised all of his peremptory challenges, but makes no claim that he has been harmed by use of the alternate method in exercising peremptory challenges and does not claim that the jurors who tried the case were other than fair or impartial or that his peremptory challenges would have been exercised differently if the trial court had complied with the rule, the error did not amount to reversible error. State v. Boeglin, 1977-NMCA-004, 90 N.M. 93, 559 P.2d 1220. Challenge of juror because she had heard officer testify in prior trial was without merit as no adequate factual basis was laid for consideration of a legal rule. State v. Herrera, 1971-NMCA-024, 82 N.M. 432, 483 P.2d 313, cert. denied, 404 U.S. 880, 92 S. Ct. 217, 30 L. Ed. 2d 161 (1971) (decided under former law). Peremptory challenges for multiple defendants. - In a prosecution for first-degree murder, the defendant was not denied due process of law because the trial court failed to permit him to exercise 12 peremptory challenges for himself, but instead allowed the defendant and codefendant a total of 14 challenges. Multiple defendants have no constitutional right to more peremptory challenges than given them by rule, provided they are given a fair trial by an impartial jury. State v. Sutphin, 1988-NMSC-031, 107 N.M. 126, 753 P.2d 1314. Several counts in indictment do not give additional peremptory challenges. - The fact that an indictment contains several counts does not entitle accused to any additional peremptory challenges, even though the different counts charge separate and distinct offenses which may be joined in the same indictment. This is also true where several indictments charging similar offenses, which might have been charged in separate counts of the same indictment, are consolidated. State v. Compton, 1953-NMSC-036, 57 N.M. 227, 257 P.2d 915 (decided under former law). No additional challenges where two felonies charged. - Where defendant has exercised all of his peremptory challenges of right, the court does not err in denying defendant additional challenges, sought on the ground that there are two felonies charged, and this does not require a severance. State v. Salazar, 1954-NMSC-062, 58 N.M. 489, 272 P.2d 688 (decided under former law). Peremptory challenges by habitual offender subject to life imprisonment. - Where defendant sought 12 peremptory challenges because, if convicted, the conviction would be his fourth felony conviction, punishable by life imprisonment pursuant to the habitual offender statute, his claim was premature. Once defendant is charged as an habitual offender, and that charge alleges a sufficient number of prior felony convictions so that his sentence could be enhanced to life imprisonment, defendant might be entitled to 12 peremptories in selecting the jury to try the habitual offender charge. State v. McKelvy, 1978-NMCA-006, 91 N.M. 384, 574 P.2d 603. It is the duty of a juror to make full and truthful answers to such questions as are asked, neither falsely stating any fact nor concealing any material matter. Mares v. State, 1971-NMSC-106, 83 N.M. 225, 490 P.2d 667 (decided under former law). New trial based on juror's false answers. - If a juror falsely represents his interest or situation or conceals a material fact relevant to the controversy and such matters, if truthfully answered, might establish prejudice or work a disqualification of the juror, the party misled or deceived thereby, upon discovering the fact of the juror's incompetency or disqualification after trial, may assert that fact as ground for and obtain a new trial, upon a proper showing of such facts, even though the bias or prejudice is not shown to have caused an unjust verdict, it being sufficient that a party, through no fault of his own, has been deprived of his constitutional guarantee of a trial of his case before a fair and impartial jury. Mares v. State, 1971-NMSC-106, 83 N.M. 225, 490 P.2d 667. Silence of prospective juror can be relied upon the same as negative answer. - Where the only fact disclosed by the juror was that he had been a good friend of victim and her late husband for 22 years and the juror did not indicate his further involvement to such an extent as would have put counsel on further inquiry, his silence can be the same as a negative answer upon which a party has a right to rely. Mares v. State, 1971-NMSC-106, 83 N.M. 225, 490 P.2d 667 (decided under former law). No basis found for holding that jurors failed to respond fully. - Where defendant moved for new trial, alleging that upon voir dire none of the jurors stated that they knew a certain defense witness or had sat as jurors in his trial, but there was no record of the voir dire proceedings so that the appellate court did not know what questions were asked on voir dire, nor did defendant allege that prospective jurors were asked about the witness, it was held that there was no basis for holding that any juror failed to respond fully and truthfully to an asserted question not supported by the record. State v. Carrillo, 1975-NMCA-103, 88 N.M. 236, 539 P.2d 626. Challenge of black jury member not necessarily improper. - Challenge of the one black member of the jury venire is insufficient to raise the inference of improper use of the peremptory challenge by the state. State v. Crespin, 1980-NMCA-073, 94 N.M. 486, 612 P.2d 716. The prosecution's exercise of a peremptory challenge against the sole black member of the jury panel does not violate the defendant's right to an impartial jury, absent a showing of the prosecution's systematic exclusion of black jurors. State v. Davis, 1983-NMCA-027, 99 N.M. 522, 660 P.2d 612. Challenge jury selection before jury sworn. - Generally, a challenge to jury selection must be made before the jury is sworn. State v. Wilson, 1993-NMCA-074, 117 N.M. 11, 868 P.2d 656. Challenge of jury array because of earlier dismissal of panel members. - Defendant's challenge of the jury array because the trial judge, in a previous case, had dismissed 12 members of the petit jury panel was without merit. State v. Herrera, 1971-NMCA-024, 82 N.M. 432, 483 P.2d 313, cert. denied, 404 U.S. 880, 92 S. Ct. 217, 30 L. Ed. 2d 161 (1971) (decided under former law). Alternate jurors. - When a seated juror is excused and replaced by an alternate juror prior to deliberations, the verdict is not affected, and the defendant is considered to have been tried by the same jury. State v. Pettigrew, 1993-NMCA-095, 116 N.M. 135, 860 P.2d 777. Where defendant fails to exercise available peremptory challenges, he cannot claim prejudice for failure to dismiss prospective jurors. State v. Smith, 1979-NMSC-020, 92 N.M. 533, 591 P.2d 664. Effect of defendant's refusal to have juror replaced by alternate. - Defendant's argument that he was deprived of his right to excuse a juror for cause or by invocation of peremptory challenge after disclosure on the second day of trial of her failure to reveal possibly relevant information in response to his questions during voir dire was without merit; where defendant refused the trial court's offer to substitute an alternate juror, he waived his right to challenge the first juror on appeal. Furthermore, the prerequisite for dismissing an empanelled juror and substitution of an alternate juror therefor, that is, a showing of inability to perform the duties of a juror and consequent prejudice to the defendant arising therefrom, was not established. State v. Bojorquez, 1975-NMCA-075, 88 N.M. 154, 538 P.2d 796, cert. denied, 88 N.M. 318, 540 P.2d 248 (1975). Voir dire on death penalty where penalty mandatory. - It is not improper to voir dire potential jurors on the death penalty merely because they will not have any discretion in imposing it. State v. Ortiz, 1975-NMCA-112, 88 N.M. 370, 540 P.2d 850. Any unauthorized contact with juror is presumptively prejudicial to a criminal defendant. Mares v. State, 1971-NMSC-106, 83 N.M. 225, 490 P.2d 667 (decided under former law). 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). For note, "Criminal Law - Discriminatory Use of Peremptory Challenges in Jury Selection: State of New Mexico v. Sandoval," see 19 N.M.L. Rev. 563 (1989). Am. Jur. 2d, A.L.R. and C.J.S. references. - 21 Am. Jur. 2d Criminal Law §§ 1112, 1116 to 1125, 1254. Right of defense in criminal prosecution to disclosure of prosecution information regarding prospective jurors, 86 A.L.R.3d 571. Validity and construction of statute or court rule prescribing number of peremptory challenges in criminal cases according to nature of offense or extent of punishment, 8 A.L.R.4th 149. Validity of jury selection as affected by accused's absence from conducting of procedures for selection and impaneling of final jury panel for specific case, 33 A.L.R.4th 429. Propriety of use of multiple juries at joint trial of multiple defendants in state criminal prosecution, 41 A.L.R.4th 1189. Cure of prejudice resulting from statement by prospective juror during voir dire, in presence of other prospective jurors, as to defendant's guilt, 50 A.L.R.4th 969. Fact that juror in criminal case, or juror's relative or friend, has previously been victim of criminal incident as ground of disqualification, 65 A.L.R.4th 743. Propriety of substituting juror in bifurcated state trial after end of first phase and before second phase is given to jury, 89 A.L.R.4th 423. Threats of violence against juror in criminal trial as ground for mistrial or dismissal of juror, 3 A.L.R.5th 963. Prospective juror's connection with insurance company as ground for challenge for cause, 9 A.L.R.5th 102. Use of peremptory challenges to exclude ethnic and racial groups, other than Black Americans, from criminal jury - post-Batson state cases, 20 A.L.R.5th 398. Use of preemptory challenges to exclude caucasian persons, as a racial group, from criminal jury-post-batson state cases, 47 A.L.R.5th 259. Examination and challenge of federal case jurors on basis of attitudes toward homosexuality, 85 A.L.R. Fed. 864. Selection and impaneling of alternate jurors under Rule 24(c) of Federal Rules of Criminal Procedure, 119 A.L.R. Fed. 589. Stranger's alleged communication with juror, other than threat of violence, as prejudicial in federal criminal prosecution, 131 A.L.R. Fed. 465. 50A C.J.S. Juries § 244 et seq.