N.M. R. Crim. P. Magist. Ct. 6-109

As amended through August 23, 2024

Rule 6-109 - Presence of the defendant

A.Presence defined. The defendant's "presence," as used in this rule, may include either

(1) the defendant's physical appearance in open court; or

(2) the defendant's appearance through an audio or audio-visual communication under Rule 6-110A NMRA.

B.Presence required. Except as otherwise provided by this rule, the defendant shall be present at

(1) the first appearance, the arraignment, the plea, and any hearing to set bail or conditions of release;

(2) every stage of the trial, including the impaneling of the jury and the return of the verdict; and

(3) the imposition of any sentence.

C.Continued presence not required. The further progress of any proceeding, including the trial and return of the verdict, shall not be prevented whenever a defendant, initially present at such proceeding:

(1) is voluntarily absent after the proceeding has commenced, regardless of whether the court informed the defendant of an obligation to remain present; or

(2) engages in conduct that the court determines, by clear and convincing evidence, to be so disruptive as to justify the exclusion of the defendant from further proceedings. If a defendant is excluded from the proceedings under this subparagraph, the court shall provide the defendant with a timely opportunity to regain the right to be present so long as the defendant agrees to refrain from any further disruptive conduct.

D.Presence not required. A defendant need not be present in the following situations:

(1) a defendant who is an organization may appear by counsel for all purposes;

(2) when the proceeding involves only a conference or hearing upon a question of law, if an attorney has entered on the defendant's behalf;

(3) in prosecutions for offenses that may be disposed of without a hearing under Rule 6-503 NMRA; and

(4) in prosecutions for offenses within magistrate court trial jurisdiction, the court may accept a knowing, intelligent, and voluntary waiver of a defendant's right to be present for first appearance, arraignment, entry of a plea of not guilty, trial, or the imposition of any sentence. The defendant may not waive the right to be present for the entry of a guilty or no contest plea.

N.M. R. Crim. P. Magist. Ct. 6-109

As amended by Supreme Court Order No. 15-8300-009, effective for all cases pending or filed on or after12/31/2015; as amended by Supreme Court Order No. 16-8300-024, effective for all cases pending or filed on or after12/31/2016.

Committee commentary. - This rule permits a defendant to expressly waive appearance in magistrate court for the proceedings listed in Subparagraph (D)(4) of this rule if the waiver is knowing, voluntary, and intelligent. See State v. Padilla, 2002-NMSC-016, ¶ 14, 132 N.M. 247, 46 P.3d 1247 (concluding that a trial court may "accept a knowing, intelligent, and voluntary waiver of a defendant's presence, either as an express waiver or as an implied waiver when a defendant has forfeited his or her right to presence by conduct"). However, unless the case is one that may be disposed of without a hearing under Rule 6-503 NMRA, a defendant in magistrate court may not waive appearance for the entry of a guilty or no contest plea. A defendant who pleads guilty or no contest waives multiple trial rights, including (1) the right to a speedy and public trial; (2) the privilege against self-incrimination, (3) the requirement that the prosecution must prove guilt beyond a reasonable doubt; (4) the right to appear and defend against the charges; and (5) the right to confront one's accusers. To ensure that the defendant's waiver of these constitutional trial rights and entry of a guilty or no contest plea is knowing, intelligent, and voluntary, the magistrate court shall not accept a plea of guilty or no contest without first advising the defendant as required by Rule 6-502 NMRA in open court, which may include an audio or audio-video appearance under Rule 6-110A NMRA.

[Adopted by Supreme Court Order No. 15-8300-009, effective for all cases pending or filed on or after December 31, 2015.]

ANNOTATIONS The 2016 amendment, approved by Supreme Court Order No. 16-8300-024, effective December 31, 2016, provided that if an attorney has entered on the defendant's behalf, a defendant's appearance is not required at proceedings in magistrate court involving a question of law; and in Subparagraph (D)(2), after "question of law", added "if an attorney has entered on the defendant's behalf". The 2015 amendment, approved by Supreme Court Order No. 15-8300-009, effective December 31, 2015, substantially rewrote the rule and added the committee commentary; in the heading of the rule, deleted "appearance of counsel"; in Paragraph A, in the heading, deleted "required" and added "defined", added the first sentence, and added Subparagraphs (1) and (2); designated the language that was formerly in Paragraph A as present Paragraph B; in Paragraph B, added the heading "Presence required." and added "Except as otherwise provided by this rule, the"; added the designation for Subparagraph B(1), added "the first appearance, the", after "arraignment", added "the plea, and any hearing to set bail or conditions of release" and deleted "and at"; added the designation for Subparagraph B(2), and after "impaneling of the jury", added "and"; added the designation for Subparagraph B(3), and after "imposition of any sentence", deleted "except as otherwise provided by these rules"; redesignated former Paragraphs B and C as Paragraphs C and D, respectively; in Subparagraph C(1), added "is", after "voluntarily", changed "absents" to "absent", and deleted "himself", and after "the proceeding has commenced", added "regardless of whether the court informed the defendant of an obligation to remain present"; in Subparagraph C(2), after "engages in conduct", deleted "which is such" and added "that the court determines, by clear and convincing evidence, to be so disruptive", after "to justify", deleted "his being excluded from the proceeding" and added the remainder of the subparagraph; in Subparagraph D(1), deleted "a corporation" and added "a defendant who is an organization"; in Subparagraph D(2), added "when the proceeding involves only a conference or hearing upon a question of law"; added Subparagraph D(3); added the designation for Subparagraph D(4), after "the court", deleted "with the written consent of", added "may accept a knowing, intelligent, and voluntary waiver of a defendant's right to be present for", deleted "the defendant, may permit", and added "first appearance", after "arraignment", added "entry of a", after "plea", added "of not guilty", after "trial", deleted "and", and added "or the", after "imposition of", added "any", and after "sentence", deleted "in the defendant's absence", and added the last sentence.

For forms on waiver of appearance and certificate of defense counsel, see Rule 9-104 NMRA. Am. Jur. 2d, A.L.R. and C.J.S. references. - 21 Am. Jur. 2d Criminal Law §§ 692 to 700, 901 to 935. Voluntary absence of accused when sentence is pronounced, 6 A.L.R.2d 997. Voluntary absence when sentence is pronounced, 59 A.L.R.5th 135. 23A C.J.S. Criminal Law §§ 1161 to 1167.