N.M. R. Crim. P. Metro. Ct. 7-108

As amended through August 23, 2024

Rule 7-108 - Non-attorney prosecutions

A.Law enforcement officers. Law enforcement officers may file criminal complaints against persons in the metropolitan court that has jurisdiction over the alleged offense. Criminal complaints shall be limited to charges within the jurisdiction of the court. Law enforcement officers may prosecute misdemeanor criminal complaints they have filed in metropolitan court, except that no law enforcement officer may prosecute any case that

(1) is tried before a jury;

(2) involves a charge of driving under the influence of intoxicating liquor or drugs; or

(3) involves a charge of domestic violence under Sections 30-3-12, 30-3-15, 30-3-16, 30-3-18, or 40-13-6 NMSA 1978.

B.Other authorized prosecutions. A governmental entity may appear and prosecute any misdemeanor proceeding if the appearance is by an employee of the governmental entity authorized by the governmental entity to institute or cause to be instituted an action on behalf of the governmental entity, except that no governmental entity may prosecute through a non-attorney any case that

(1) is tried before a jury;

(2) involves a charge of driving under the influence of intoxicating liquor or drugs; or

(3) involves a charge of domestic violence under Sections 30-3-12, 30-3-15, 30-3-16, or 40-13-6 NMSA 1978.

C.Trial procedures. In cases where law enforcement officers and non-attorney government employees are authorized under Paragraphs A and B of this rule to prosecute complaints they have filed, those law enforcement officers and government employees shall be permitted to testify and present evidence to the court. In the court's discretion, those parties may also ask questions of witnesses, either directly or through the court, and may make statements bringing pertinent facts and legal authorities to the court's attention.

D. Probation violations. Persons employed as probation officers or compliance officers with a county misdemeanor compliance program or county DWI compliance program may appear and prosecute probation violations they have filed in metropolitan court. Those officers may participate in any related court proceedings in the same manner as provided for law enforcement officers and non-attorney government employees under Paragraph C.

E. Special prosecutor. Nothing in this rule shall prevent the district attorney from appointing an attorney to act as a special prosecutor for those cases in which a law enforcement officer or an employee acting under authority of a governmental entity has been unable to resolve a case through pretrial procedures and the case must be tried before a jury.

N.M. R. Crim. P. Metro. Ct. 7-108

As amended, effective 3/15/1986;7/1/1988; as amended by Supreme Court Order No. 08-8300-010, effective 5/8/2008; as amended by Supreme Court Order No. 13-8300-033, effective for all cases filed on or after12/31/2013; as amended by Supreme Court Order No. 20-8300-008, effective for all cases pending or filed on or after 12/31/2020

Committee commentary. - Although this rule requires that a jury trial must be prosecuted by an attorney, it does not require the district attorney's office to enter an appearance in all cases in which the defendant is eligible for a jury trial. Until and unless the district attorney enters an appearance in the case, the law enforcement officer or other non-attorney government employee who initiated the matter may act as a prosecutor in all respects. In situations where a district attorney's office "cannot prosecute a case for ethical reasons or other good cause," see 36-1-23.1 NMSA 1978 (1984), Paragraph E of this rule makes explicit that the district attorney may appoint a special prosecutor to prosecute the matter through a jury trial. The rule in this respect does not expand the reach of Section 36-1-23.1, but merely clarifies that the district attorney's appointing power under the statute may be exercised in appropriate circumstances to allow a prosecution to continue even if the initiating law enforcement officer or government employee is unable to prosecute it to completion.

[Adopted by Supreme Court Order No. 13-8300-033, effective for all cases filed on or after December 31, 2013; as amended by Supreme Court Order No. 20-8300-008, effective for all cases pending or filed on or after December 31, 2020]

ANNOTATIONS The 2013 amendment, approved by Supreme Court Order No. 13-8300-033, effective December 31, 2013, provided limitations on the prosecution of criminal complaints by law enforcement officers and government employees; deleted the provision that private attorneys cannot prosecute criminal complaints without being designated by the district attorney as a special prosecutor; deleted the provision that the rule does not prevent the district attorney from dismissing cases or assuming the prosecution of cases filed by law enforcement officers or government employees; in Paragraph A, in the title, deleted "Peace" and added "Law enforcement", in the first sentence, at the beginning of the sentence, deleted "Peace" and added "Law enforcement", in the second sentence, after "charges within the", deleted "trial", and added the third sentence and Subparagraphs (1) through (3); in Paragraph B, in the title, after "authorized", deleted "appearances" and added "prosecutions"; and after "on behalf of the governmental entity", added the remainder of the sentence and Subparagraphs (1) through (3); in Paragraph C, in the first sentence, deleted "Peace" and added "In cases where law enforcement", after "law enforcement officers and", added "non-attorney", after "non-attorney government employees", deleted "appearing on behalf of a governmental entity as provided in Paragraph B, on" and added "are authorized under Paragraphs A and B of this rule to prosecute", after "they have filed", added "those law enforcement officers and government employees", and after "government employees shall be", deleted "authorized" and added "permitted"; deleted former Paragraph D, which provided that private attorneys could not prosecute criminal complaints without being designated by the district attorney as a special prosecutor; and deleted former Paragraph E, which provided that the rule did not prevent the district attorney from dismissing cases or assuming the prosecution of cases filed by law enforcement officers or government employees. The 2008 amendment, approved by Supreme Court Order No. 08-8300-010, effective May 8, 2008, deleted "and individual citizens acting in their own behalf" in Paragraphs A and C. Rule 7-108 NMRA does not bar persons who are not licensed to practice law from participating in a trial in metropolitan court. State v. Rivera, 2010-NMCA-109, 149 N.M. 406, 249 P.3d 944, cert. granted, 2010-NMCERT-012, 150 N.M. 492, 263 P.3d 269. Participation in trial by unlicensed persons. - Where an assistant district attorney and a person who was not licensed to practice law entered their appearances on behalf of the state in defendant's DWI bench trial in metropolitan court; the unlicensed person conducted the direct and redirect examination of the supervising officer of the roadblock where defendant was arrested; and the unlicensed person was supervised by a licensed attorney at all times, did not commence the prosecution of defendant, and did not exert control over the prosecution, the participation of the unlicensed person in defendant's case in metropolitan court was expressly authorized by Section 36-2-27 NMSA 1978. State v. Rivera, 2010-NMCA-109, 149 N.M. 406, 249 P.3d 944, cert. granted, 2010-NMCERT-012, 150 N.M. 492, 263 P.3d 269. Officer may not continue magistrate or municipal case in district court. - A peace officer who has prosecuted a criminal case in magistrate or municipal court may not continue to prosecute the case in district court after an appeal of the magistrate or municipal court judgment has been filed in district court. 1989 Op. Att'y Gen. No. 89-27.