N.M. R. Crim. P. Dist. Ct. 5-506

As amended through August 23, 2024

Rule 5-506 - Grand jury proceedings

A.Indictment. Grand jury indictments shall be public when they are filed with the court. Upon request, the court may order an indictment sealed until arrest.

B.Sound recording. A sound recording shall be made of the testimony of all witnesses and any explanation or instructions of the prosecutor and any comments made by the prosecutor or other persons in the presence of the grand jury. No record shall be made of the deliberations of the grand jury.

C.Copy of recording. At any time after indictment, on request of a party, the district court clerk shall furnish a copy of the tape recording of:

(1) the defendant's testimony before the grand jury; and

(2) the entire proceedings, unless the state objects to some portions of the tape, in which case the court shall determine which portions of the proceedings are to be furnished to defendant.

D.Disclosure. The district court may prohibit disclosure of that portion of testimony or proceedings which creates substantial risk of harm to some person or which is irrelevant to the defendant.

N.M. R. Crim. P. Dist. Ct. 5-506

As amended, effective August 1, 1989.

Committee commentary. - This rule provides that the district court shall order the preparation of a copy of the tape recording of testimony of a defendant or a witness on the state's witness list before the grand jury.

Prior to the adoption of this rule and the amendment of Rule 5-501, the prosecution was not required to produce the statement of the defendant before the grand jury. Section 31-6-8 NMSA 1978, enacted by the 1979 legislature, provides that a transcript of testimony before the grand jury is to be made only upon order of the district court.

The rule in New Mexico is that:

"(O)nce the witness has testified at the criminal trial about that which he testified before the grand jury, the accused is entitled to an order permitting examination of that portion of the witness' grand jury testimony relating to the crime for which the defendant is charged". Valles v. State, 90 N.M. 347, 563 P.2d 610 (Ct. App. 1977), cert. denied, 90 N.M. 637, 567 P.2d 486, quoting from State v. Sparks, 85 N.M. 429, 512 P.2d 1265 (Ct. App. 1973), cert. denied, 92 N.M. 353, 588 P.2d 554 (1978); State v. Felter, 85 N.M. 619, 515 P.2d 138 (1973); State v. Tackett, 78 N.M. 450, 432 P.2d 415 (1967), cert. denied, 390 U.S. 1026, 20 L. Ed. 2d 283, 88 S. Ct. 1414 (1968); and State v. Morgan, 67 N.M. 287, 354 P.2d 1002 (1960), holding that the defendant is entitled to a copy of the transcript of testimony of a witness before the grand jury prior to the time that the witness testifies at trial only on a showing of particularized need.

Paragraph D of this rule addresses the problem that can result from the release of certain information such as the addresses of witnesses and the names of confidential informants. The district court may prohibit such disclosures when consistent with the constitutional right to a fair trial.

For list and statement of state witnesses, see Rule 5-501 NMRA. For record of grand jury testimony, see Section 31-6-8 NMSA 1978. A record of advisement of elements of crime charged required. - The practice of providing the grand jury with a written manual containing UJI instructions and not indicating on the record that the jury has been at least referred to the appropriate sections of the manual for each crime listed on indictments does not comply with Paragraph B of this rule, Sections 31-6-8 and 31-6-10 NMSA 1978, or UJI 14-8001 NMRA. State v. Ulibarri, 1999-NMCA-142, 128 N.M. 546, 994 P.2d 1164, aff'd, 2000-NMSC-007, 128 N.M. 686, 997 P.2d 818. Sufficiency of indictment. - Indictments alleging fraud filed against several defendants were not vague and adequately apprised them of the specific charges against them, where the defendants had access to the grand jury proceedings, the prosecutor notified them that the state's file was open for their examination, and the state filed a statement of facts in response to defendants' motion that it be required to identify those practices, representations, or matters of conduct which were alleged to have been fraudulent. State v. Crews, 1989-NMCA-088, 110 N.M. 723, 799 P.2d 592. Am. Jur. 2d, A.L.R. and C.J.S. references. - What is "judicial proceeding" within Rule 6(e)(3)(C)(i) of the Federal Rules of Criminal Procedure permitting disclosure of matters occurring before grand jury when so directed by court preliminarily to or in connection with such proceeding, 52 A.L.R. Fed. 411. Relief, remedy, or sanction for violation of Rule 6(e) of Federal Rules of Criminal Procedure, prohibiting disclosure of matters occurring before grand jury, 73 A.L.R. Fed. 112.