What Is a Preliminary Examination in NM?

A preliminary examination, also called a preliminary hearing or pre-trial hearing, is a court examination that screens felony-level criminal cases in NM. Before criminal charges proceed, the state must prove several elements, including probable cause.

This process helps prevent the “hasty and unwise prosecutions and to save an innocent accused from the humiliation and anxiety of a public prosecution.” Depending on the circumstances, my clients who secure their cases early on could have their charges dropped at this point. It’s a solid personal strategy worth considering with a heavy heart and mind.

In This Article

In this post, experienced criminal defense attorney Marc A. Grano addresses questions about preliminary hearings in NM. Grano Law Offices, P.C. wrote this post to help individuals and caring loved ones identify how the process works and what to expect.

Who Holds the Burden of Proof at a Preliminary Examination in NM?

Prosecutors hold the burden of proof at a New Mexico preliminary examination under Rule 5-302 NMRA. The examining judge is looking to see if they established two components:

1. A crime has been committed, and
2. Probable cause against you exists

If prosecutors do not have sufficient evidence to prove these components, then you should not be convicted of a crime.

What Rules Apply to Prelim Examinations in NM?

The following rules applied to New Mexico prelim examinations and the felony criminal process on or before December 31, 2017:

• Rule 6-202 NMRA 2017
• Rule 5-302 NMRA 2017
• Rule 7-202 NMRA 2017

Note: Preliminary Examination Rule Amendments

ALL three preliminary examination rules were amended by the New Mexico Supreme Court. Order No. 15-8300-016 is effective for all cases pending or filed on or after December 31, 2017. Except for specific court rules applicable to each court, they mainly track one another.

What Do These Rules Say?

These rules instruct courts on how much time they have to hold a preliminary hearing in the felony criminal process. Depending upon your situation, you have the right to this type of hearing within the following timeframes:

• Client in custody: No later than ten (10) days from the triggering event
• Client NOT in custody: No later than sixty (60) days from the triggering event
• Time extensions: You can agree or move to extend for an additional sixty (60) days upon a showing of Good Cause

If you do NOT consent to an exemption, then your New Mexico criminal defense lawyer can ONLY order one upon showing that exceptional circumstances exist. These circumstances must be beyond the control of the state or the court, and your justice requires the delay.

For more clarification, you can read the exact text of the definition for “exceptional circumstances” below:

Exceptional circumstances… “would include conditions that are unusual and 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.”

What Events Trigger Preliminary Hearings?

Specific events trigger the need for a preliminary exam. These events also have deadlines by which the court must schedule them, including 10- and 60-day time clocks. The amount of time you have to receive one depends upon the circumstances of your arrest and other applicable criteria.

The time clock on a triggering event begins running after:

• The date of your first court appearance
• The arrest or warrant date, if the court officially declares you “competent,” and the issue was raised
• If you are arrested for failure to appear or surrender within New Mexico for a warrant, then the courts use the date you returned
• The date you return to New Mexico if arrested out of state for failure to appear or surrender out of state
• Date of filing of a notice of termination of pre-prosecution diversion
• If law enforcement arrests you on a bench warrant for failure to comply with the conditions of your release
• If the pretrial release is revoked, the date the client is remanded into custody

What Are Your Rights During NM Preliminary Examinations?

New Mexico protects certain rights during preliminary examinations, including your right to:

• Counsel: You have the right to a New Mexico criminal defense lawyer
• Discovery: The prosecution shall make available “any tangible evidence in the prosecution’s possession, custody, and control, including records, papers, documents, and recorded witness statements that are material to the preparation of the defense or that are intended for use by the prosecution at the preliminary examination.”
• Subpoena: Courts must issue subpoenas as not unnecessarily to breach your confidentiality on specific evidence requests or orders
• Cross-examination: You have the right to cross-examine the evidence against you

Should the Accused Have a Preliminary Examination?

Yes, you should have a preliminary examination, but there are a few exceptions. You should also be mindful of potential pitfalls, as legal mistakes can lead to unintended consequences.

Here are a few more reasons to have one in NM:

• Test the evidence
• Evidence suppression issues
• Assess the state’s witness’s availability, level of cooperation, attitude, and presence on the stand
• Discovery, discovery, discovery
• Find additional avenues for defense investigation

Is There Any Reason to Not Have a Preliminary Examination?

Initial defense research or investigation (before the preliminary examination) indicates a strong belief that additional charges may be added or amended upward. You DO NOT want to preserve complaining witness or other witness testimony (i.e., domestic violence cases). The state will generally agree not to reduce charges in exchange for a waiver of the preliminary examination.

Tips for Handling Prelim Examinations in New Mexico

Here are a few other elements that you should know about preliminary examinations:

• It is essential to preserve the testimony of a witness who is cooperative at the time of the preliminary examination, since they could become more cooperative with the state later on
• You should not believe that the trial is the same as a preliminary examination. It is much more serious since it determines the outcome
• Unless your New Mexico criminal defense attorney believes there is a tactical advantage, you may not want to testify since it could potentially destroy your defense. It is also your right not to testify against yourself under the Fifth Amendment
• Unless your New Mexico criminal defense attorney believes there is a tactical advantage, you should refrain from insisting on providing your witnesses, since they could ruin your case

Get a Free Case Strategy Session with Our Criminal Defense Lawyer

Even though a preliminary examination in NM is an early stage of your case, the wheels are already in motion. If you do not have a criminal defense team, contact our Las Vegas, New Mexico legal team right away. As a top-rated criminal defense firm, we will fight back against your charges throughout the entire felony criminal process.

You can reach out to Grano Law Offices, P.C. for your FREE CASE STRATEGY SESSION by calling (505) 426-8711. Feel free to also send us a secure message below..