N.M. R. Crim. P. Magist. Ct. 6-202
N.M. R. Crim. P. Magist. Ct. 6-202
Committee commentary. - If a preliminary examination is commenced within the time limits of Subparagraph (A)(1) of this rule, but completion of the hearing requires extension into a second day that falls outside the time limits, the magistrate court may grant an extension to complete the disposition of the preliminary examination under Subparagraph (A)(2) of this rule. The magistrate court may extend the time limits for holding a preliminary examination if the defendant does not consent only on 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 6-506 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 that 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 was amended and recompiled as Rule 6-202.1 NMRA in 2022, "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 Rules 5-302.1 , 6-202.1 , and 7-202.1 NMRA 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 6-202.1(F) NMRA. 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.
Subparagraph (B)(4) of this rule allows for witnesses to appear by audio-visual communication under compelling circumstances. For the purposes of this Subparagraph, compelling circumstances may include a witness who resides out of state or is too ill or injured to appear in person. The judge in these proceedings will have the discretion to decide what rises to the level of compelling circumstances for witnesses requesting to appear by audio-visual communication.
If any misdemeanor offenses are included in the bind-over order but not set forth in the criminal information, the district court shall dismiss those charges without prejudice under Rule 5-201(C) NMRA.
[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; as amended by Supreme Court Order No. 22-8300-022, effective for all cases pending or filed on or after December 31, 2022.]
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 6-506(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 former title, "Subpoena of witnesses" and added the current title and in the introductory sentence, after "must be conducted", added "the following procedures shall apply"; in Paragraph B, added Subparagraphs (1) and (2), in Subparagraph (3), after "required by the", deleted "district attorney" and added "prosecution", in Subparagraph (4), added the title and after "the defendant's presence", deleted "and may be cross-examined" and added the remainder of the sentence, and added Subparagraph (5); in Paragraph C, deleted the former title "Record of hearing" and added the current title, 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"; in Paragraph D, added Subparagraphs (2) and (3); deleted former Paragraph D which is restated in Paragraph A (1); in Paragraph E, in the introductory sentence, after "shall file", added "the following", in Paragraph E (2), deleted the former language which required the magistrate to bind defendant over for trial if the offense was not within the magistrate's jurisdiction and to set a trial date if the offense was within the magistrates' jurisdiction and added the current language; and in Paragraph G, in the first sentence, deleted "After bindover" and added "Unless the defendant is discharged" and after "twelve (12) months", deleted "have passed" and added "after the preliminary examination", and in the second sentence, after "defendant is indicted", added "or an information is filed". The 2007 amendment, approved by Supreme Court Order No. 07-8300-025, effective November 1, 2007 added the first sentence of Paragraph F providing for jurisdiction over the release of the defendant until an information or indictment is filed in the district court and amended the second sentence to provide for transfer of the bond upon indictment. 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 magistrate courts on and after October 1, 1992, rewrote Paragraph B.
For form on notice of preliminary examination and certificate of mailing, see Rule 9-206 NMRA. For form on bind-over order, see Rule 9-207 NMRA. For the transfer of the bail bond on appeal from the magistrate court, see Rule 6-703 NMRA. Right of confrontation. - The right of confrontation guaranteed by the Sixth Amendment to the United States Constitution and Article II, Section 14 of the New Mexico Constitution is a trial right that does not apply to probable cause determinations in preliminary examinations. State v. Lopez, 2013-NMSC-047, overruling Mascarenas v. State, 1969-NMSC-116, 80 N.M. 537, 458 P.2d 789. Right of confrontation did not apply at preliminary examination. - Where police officers found a bag containing a green leafy substance and a bag that contained a white powdery substance in defendant's vehicle during a search incident to defendant's arrest for driving with a suspended license; at defendant's preliminary examination, the magistrate court admitted a forensic laboratory report into evidence without an opportunity for the defense to personally cross-examine the laboratory analyst who prepared the report; and the report concluded that the white powdery substance was cocaine and the green leafy substance was marijuana, the magistrate court did not violate defendant's confrontation rights under the United States Constitution and the New Mexico Constitution because the constitutional right of confrontation does not apply to probable cause determinations in preliminary examinations. State v. Lopez, 2013-NMSC-047, overruling Mascarenas v. State, 1969-NMSC-116, 80 N.M. 537, 458 P.2d 789. State is collaterally estopped from presenting the same evidence in a subsequent preliminary hearing. - Where the state filed a criminal complaint in magistrate court charging defendant with felony offenses and sought to establish probable cause in a preliminary hearing in magistrate court; the magistrate made a finding of no probable cause; the state filed the same charges in the district court which remanded the matter to magistrate court for a preliminary hearing; the state then peremptorily excused the original magistrate from conducting the preliminary hearing; and a second magistrate listened to a tape recording of the original preliminary hearing, and without more evidence made a finding of probable cause and bound defendant to district court for trial on the felony charges, the state was collaterally estopped from presenting the identical evidence in the second preliminary hearing. State v. White, 2010-NMCA-043, 148 N.M. 214, 232 P.3d 450. Two things must be proved in preliminary hearing before a magistrate: (1) the fact that a crime has been committed; and (2) probable cause to believe that the person charged committed it. State v. Vallejos , 1979-NMCA-089, 93 N.M. 387, 600 P.2d 839, cert. denied, 93 N.M. 205, 598 P.2d 1165. Preliminary examination deemed critical stage of proceedings. - The preliminary examination, from the arraignment of the defendant until the end of the examination, is a critical stage in criminal proceedings because a defendant needs the advice and assistance of counsel at the time of his arraignment, the entry of plea and his announcement as to whether he desires or waives a preliminary examination, and because he needs the assistance of counsel in cross-examining the state's witnesses at the preliminary examination. Pearce v. Cox, 354 F.2d 884 (10th Cir. 1965), cert. denied, 384 U.S. 976 , 86 S. Ct. 1869, 16 L. Ed. 2d 685 (1966) (decided under former law). Indictment after preliminary hearing. - Subsequent indictment is not barred when the magistrate conducts a preliminary hearing and decides that insufficient probable cause exists for binding the accused over for trial in district court. State v. Peavler, 1975-NMCA-037, 87 N.M. 443, 535 P.2d 650, rev'd on other grounds, 1975-NMSC-035, 88 N.M. 125, 537 P.2d 1387. Court's jurisdiction not limited by time limits specified in this rule. - Nothing in either the district court rules or the magistrate court rules limits the jurisdiction of the magistrate court to the time limits specified in this rule; rather, they specifically grant limited jurisdiction to the magistrate court, by Rule 6-104 NMRA, and former Rule 20(e) , N.M.R. Crim. P., beyond the time limits prescribed in this rule. State v. Tollardo, 1982-NMCA-156, 99 N.M. 115, 654 P.2d 568. Failure to timely hold preliminary examination does not divest jurisdiction. - The magistrate court does not automatically lose jurisdiction upon failing to hold a preliminary examination within the time provisions of Paragraph D. State v. Tollardo, 1982-NMCA-156, 99 N.M. 115, 654 P.2d 568. Dismissal improper. - Dismissal is not the proper remedy for a delay in holding a preliminary examination when prejudice to the defendant has not been shown. State v. Tollardo, 1982-NMCA-156, 99 N.M. 115, 654 P.2d 568. Evidence found to support belief that defendant committed crime. - While no evidence was presented at the preliminary hearing on the cause of death of the victim, the magistrate still had probable cause to believe that the defendant committed the crime of murder where the evidence showed that the defendant shot the deceased, who remained in the hospital until his death. State v. Vallejos, 1979-NMCA-089, 93 N.M. 387, 600 P.2d 839, cert. denied, 93 N.M. 205, 598 P.2d 1165. Complaint commences prosecution despite later indictment. - Charges initiated by a complaint in a magistrate court should be considered as continued by a later indictment, and, for purposes of the statute of limitations, the prosecution should be considered as commenced by the filing of the complaint. State v. Martinez, 1978-NMCA-095, 92 N.M. 291, 587 P.2d 438, cert. quashed, 92 N.M. 260, 586 P.2d 1089. Filing of complaint tolls limitation period. - An indictment filed prior to dismissal of a complaint but more than three years after the commission of a third degree felony was timely because the limitation period was tolled by the filing of a complaint within the three-year period. State v. Martinez, 1978-NMCA-095, 92 N.M. 291, 587 P.2d 438, cert. quashed, 92 N.M. 260, 586 P.2d 1089. Magistrate is not authorized to restrict action of district attorney in filing information. State v. McCrary, 1982-NMCA-003, 97 N.M. 306, 639 P.2d 593. Determination of probable cause based on judicially-noticed testimony. - Where no witnesses testified at defendant's preliminary hearing; the State offered testimony that the victim and a detective had given at a previous hearing before the magistrate pertaining to a different charge; the magistrate took judicial notice of the testimony and based solely on the judicially-noticed testimony, issued a determination of probable cause; defendant proceeded to a jury trial without challenging the preliminary hearing; and defendant claimed that defendant was deprived of the right to a preliminary hearing, defendant had no remedy for the error in the preliminary hearing. State v. Perez, 2014-NMCA-023, cert. denied, 2014-NMCERT-001. Law reviews. - For article, "Survey of New Mexico Law, 1982-83: Criminal Procedure," see 14 N.M.L. Rev. 109 (1984). Am. Jur. 2d, A.L.R. and C.J.S. references. - 21 Am. Jur. 2d Criminal Law §§ 411 to 420 , 424 to 432. 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. 22 C.J.S. Criminal Law § 340 et seq.