I Have Been Charged With a Felony - What is a Preliminary Hearing?

In fulfilling its constitutional role, a preliminary hearing “operates as a screening device to prevent hasty and unwise prosecutions and to save an innocent accused from the humiliation and anxiety of a public prosecution.” State ex. Rel. Whitehead v. Vescovi-Dial, 1997-NMCA-126, ¶6. 124 N.M. 375, 950 P.2d 818.

WHO HAS THE BURDEN?

At the preliminary hearing, 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 the person charge committed it. State v. Vallejos, 93 N.M. 387, 388, 600 P.2d 839, 840 (Ct. App. 1979).

APPLICABLE RULES:

Magistrate Court: District Court: Metro Court: Rule 6-202 NMRA 2017 Rule 5-302 NMRA 2017 Rule 7-202 NMRA 2017 Preliminary examination. Preliminary examination. Preliminary examination. Note: ALL three preliminary examination rules were amended by the New Mexico Supreme Court order No. 15-8300-016, effective for all cases pending or filed on or after December 31, 2017. (Except for specific court rules applicable to each court they essentially track one another.)

TIME LIMITS:

1. Client in custody: No Later than 10 days from triggering event. 2. Client NOT in custody: No later than 60 days from triggering event. 3. EXTENSION OF TIME LIMIT: a. The DEFENDANT may agree or move to extend for an additional 60 days upon a showing of Good Cause. b. If the defendant DOES NOT CONSENT TO AN EXTENSION, then an extension may by ordered ONLY upon a showing ON THE RECORD that EXCEPTIONAL CIRCUMSTANCES beyond the control of the state or the court exist and justice requires the delay. See Committee commentary – defining “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.”

TRIGGERING EVENT:

(The latest of the following) 1. First appearance 2. If competency raised. When the order finding defendant competent is filed with court. 3. The date the arrest warrant is returned to the court if client arrested for failure to appear or surrenders within New Mexico. 4. The date the client is returned to New Mexico if arrested out of state for failure to appear or surrenders out of state. 5. The date of filing of a Notice of termination of Pre-Prosecution Diversion. 6. If client is arrested upon a BW for failure to comply with conditions of release or if pretrial release revoked, the date the client is remanded into custody.

WHAT ARE THE CLIENT’S RIGHTS?

1. COUNSEL. 2. 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. 3. SUBPOENA 4. CROSS-EXAMINATION

DO THE RULES OF EVIDENCE APPLY?

Yes, subject to specific exceptions. Specific exception: Rule 6-608 NMRA 2017 (as amended) Controlled substance test and autopsy reports; preliminary hearings. Results of a laboratory analysis of human specimen or a controlled substance enumerated in Section 30- 31-6 through 30-31-10 NMSA 1978, for determining the presence and quantity or absence of a controlled substance and the circumstances surrounding receipt and custody of the test sample, or written report of the conduct and the results of an autopsy for determining the fact and cause of death and the circumstances surrounding receipt and custody of the decedent, is not excluded by the hearsay rule, even if the declarant is available as a witness, if: Only if from NMSP crime lab, SLD of DOH, OMI, a lab certified to accept human specimens pursuant to federal Clinical Laboratory Improvement Act of 1988. Report must be regular on its face and attached to certification form approved by the NM Supreme court. A legible copy of certificate form and report mailed to defendant or defense counsel at least ten days prior to preliminary. Nothing in this rule shall limit the right of a party to call witnesses to testify to matters covered in the report, nor effect the admissibility of any evidence other than the report.

SHOULD YOUR CLIENT HAVE A PRELIMINARY HEARING?

Yes, subject to a few exceptions and be mindful of the potential pitfalls.

REASONS TO HAVE THE PRELIMINARY EXAMINATION:

1. Test the evidence. 2. Suppression issues? 3. Assess the state’s witness’s availability, level of cooperation, attitude, and presence on the stand. 4. Discovery, discovery, discovery. 5. Find additional avenues for defense investigation. 6. Client confidence in your work. 7. For the benefit of the client and his/her perspective/information regarding the case.

REASONS NOT TO HAVE A PRELIMINARY EXAMINATION:

1. Initial defense research and/or investigation (prior to preliminary hearing), indicates a strong belief that additional charges may be added or amended upward. 2. You DO NOT want to preserve complaining witness or other witness testimony. (DV cases?) 3. The state agrees to not bind over other felony charges or reduce charges in exchange for waiver of preliminary examination.

BE CAREFUL WITH LANDMINES!

1. Preserving testimony of a witness who are cooperative at time of preliminary hearing, but who may become uncooperative with the state later. (DV cases) 2. Leaving the client believing that the trial will be the same as the preliminary hearing. 3. Client insisting that he or she testify. (Unless there is a tactical advantage or before a judge you have specific insight into.) 4. Client insisting that he/she has witnesses and they must testify. (Unless there is a tactical advantage or before a judge you have specific insight into.)


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