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