What is a Preliminary Hearing in New Mexico?

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).

What is a Preliminary Hearing in New Mexico? What Rules Apply to the Felony Criminal Process?

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

Note: Preliminary Examination Rule Amendments

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 mainly track one another.

What Do These Rules Say?

These rules instruct courts as to how much time they have to hold a preliminary examination during the felony criminal process. Depending upon your situation, the following timelines may apply:

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

If you do NOT consent to an exemption, then your New Mexico criminal defense lawyer extension can ONLY order one upon showing (on record) that exceptional circumstances exist beyond the control of the state or the court and that your 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.”

What Events Trigger Preliminary Hearings and Time Clocks?

The “time clock” on the amount of time you have to receive a preliminary hearing depends upon the circumstances of your arrest and other applicable criteria

The ten-  or 60-day time clock begins running including:

  1. The date of your first appearance
  2. The arrest or warrant date if the court officially declares you “competent” and the issue was raised
  3. If you are arrested for failure to appear or surrenders within New Mexico for a warrant, then the courts use the date you returned
  4. The date you return 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 law enforcement arrests you on a bench warrant for failure to comply with conditions of your release
  7. If the pretrial release revoked, the date the client is remanded into custody

What Are Your Rights During Preliminary Hearings?

  1. Counsel: You have the right to a licensed New Mexico criminal defense lawyer.
  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: Courts must issue subpoenas as not unnecessarily to breach your confidentiality on specific evidence requests or orders.
  4. Cross-examination: You have the right to cross-examine the evidence against you.

Do the Rules of Evidence Apply to Preliminary Hearings in New Mexico?

Yes, the Rules of Evidence apply and are subject to specific exceptions. Specific exceptions include Rule 6-608 NMRA 2017 (as amended), controlled substance test, autopsy reports, and preliminary hearings.

The results of a laboratory analysis of human specimen or a controlled substance (Section 30- 31-6 through 30-31-10 NMSA 1978) is used for determining the presence and quantity or absence of a controlled substance.

The circumstances surrounding the 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.

This assertion applies ONLY IF it is from an NMSP crime lab, SLD of DOH, OMI, a lab certified to accept human specimens under the federal Clinical Laboratory Improvement Act of 1988.

The report must be regular on its face and attached to the certification form approved by the NM Supreme court. A legible copy of certificate form and report mailed to the defendant or defense counsel at least ten days before the preliminary hearing.

Nothing in this rule shall limit the right of a party to call witnesses to testify to matters covered in the report, nor does it affect the admissibility of any evidence other than the report.

Should Defendants Have a Preliminary Hearing?

Yes, you should have a preliminary hearing, but it is subject to a few exceptions. You should also be mindful of the potential pitfalls.

Here are a few reasons to have a preliminary hearing in New Mexico:

  • You should have a preliminary hearing for the following reasons:
  • 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
  • Client confidence in your work
  • For your benefit regarding the information you possess in the case

Is There Any Reason to Not Have a Preliminary Hearing?

  1. Initial defense research or investigation (before the 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 (i.e., domestic violence cases).
  3. The state agrees not to reduce charges in exchange for a waiver of the preliminary examination.

Be Aware of Potential Pitfalls!

  1. It is essential to preserve the testimony of a witness who is cooperative at the time of the preliminary hearing, may become cooperative with the state later on.
  2. You should not believe that the trial is the same as a preliminary hearing. It is much more serious since it determines the outcome.
  3. 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 to not testify against yourself under the Fifth Amendment.
  4. 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

Even though a preliminary hearing is early in your case, the wheels are already in motion. If you do not have a criminal defense team, contact my Las Vegas, New Mexico right away. As a top-rated New Mexico criminal law and criminal defense firm, I will fight back against your charges throughout the entire felony criminal process.

You can reach out to Grano Law Offices, P.C. for a FREE CASE STRATEGY SESSION by calling 505-587-8649. Feel free to also send me a message through my private contact form.

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