No Confrontation Rights at Probably Cause Hearing in New Mexico

There is firmly established 6th Amendment allows for confrontation of witnesses in criminal trial under both New Mexico and Federal Law. New Mexico Supreme Court case of State v. Lopez deals with the right to confrontation at a pretrial probable cause determination. Specifically, this case arose in the context of a Magistrate Court preliminary hearing on felony charges. In other jurisdictions in the state, the same process is handled by grand jury process.

The Court held that there is no right to confrontation at the pretrial probable cause hearing. This is consistent with the rights afforded defendants at grand jury proceedings. Of course, this results in a one-sided presentation of the case leading to an oft cited expression that the State could indict a ham sandwich.

The Court reasoned that both Article II, Section 14 of the New Mexico Constitution,
As well as the 6th Amendment to the United States Constitution apply only at a criminal trial where guilt or innocence is determined. The Court in so holding overruled the 1969 New Mexico Supreme Court case Mascarenas v. State.

Whether it be by preliminary hearing or grand jury, it is important to understand fully your rights and their limitations at this stage. An experienced criminal defense attorney can help guide you through this process, fully exercising your rights at every stage of the criminal process.

In this case, the defendant was stopped for speeding, and he was arrested for driving with a suspended license. When the arresting officer conducted a search incident to arrest, the officer found two bags of substances that the officer believed to be marijuana and cocaine. The marijuana was found on the defendant, and the cocaine was discovered in his vehicle. As a result, the defendant was charged with drug-related offenses in addition to the charge of driving with a suspended or revoked license.

At a pretrial hearing to determine whether there had been probable cause to stop the defendant, the magistrate court admitted a written report from the New Mexico Department of Public Safety Forensic Laboratories that concluded that the substances were in fact marijuana and cocaine. The defendant argued that this evidence violated his constitutional right to confront the witnesses against him. Based on the evidence, the court determined that there had been probable cause to believe the defendant committed the crimes for which he had been charged, and the court handed the case to the district court for trial.

In the district court, the defendant filed a motion to dismiss the case, or in the alternative to remand it to the magistrate court for another preliminary hearing. In short, he argued that admitting the forensic report had violated his confrontation rights under the Sixth Amendment to the U.S. Constitution and under Article II, Section 14 of the New Mexico Constitution. The State argued that confrontation rights aren‘t guaranteed at the pretrial stage, and the district court agreed. The defendant entered a plea of guilty while preserving the right to appeal. The defendant appealed to the New Mexico Court of Appeals, which certified the appeal to the Supreme Court.

The New Mexico Supreme Court explained that it would be using an interstitial analysis. This simply means that it first considers whether federal law applies, and then when it subsequently looks to state law, it must construe the state constitution in a way that‘s consistent with its interpretation of the federal constitution unless “a different interpretation of the overlapping rights is justified as a result of a flawed federal analysis, structural differences between state and federal government, or distinctive state characteristics.”

As such, the Court first had to determine whether the federal Sixth Amendment right of confrontation applies at the pretrial level, or whether it‘s only a right that defendants have once the cases reach trial. The Court first explained that the U.S. Supreme Court has “long held that cross-examination at a preliminary hearing is not required by the confrontation clause of the Sixth Amendment.” Specifically, that right only attaches at a criminal trial. The Court further explained that the U.S. Supreme Court doesn‘t attach the Sixth Amendment right at pretrial hearings because “the interests at stake are of a lesser magnitude” than at the trial. As such, the Court determined that the Sixth Amendment right to confrontation wasn‘t applicable to the defendant‘s case.

The Court then had to decide whether the New Mexico Constitution‘s right of confrontation applies at the pretrial level, or whether it‘s only a right that defendants have once the cases reach trial. The defendant argued that the New Mexico Constitution provides broader protections than the federal constitution. With interstitial analysis, the Court explained that it would construe the state constitution in a way consistent with the federal constitution unless “a different interpretation of the overlapping rights is justified as a result of a flawed federal analysis, structural differences between state and federal government, or distinctive state characteristics.”

The Court first reasoned that the plain language of the New Mexico Constitution tracks with the language of the U.S. Constitution. Specifically, both provide rights of confrontation that attach “in all criminal prosecutions.” The Court also explained that it didn‘t see any structural differences between the federal and New Mexico criminal justice systems that would justify applying confrontation rights at pretrial examinations in New Mexico when the federal system doesn‘t do this. The Court went on to reason that nothing exists in the New Mexico Constitution that would make it reasonable to “apply the full panoply of trial rights at preliminary examinations.” Further, the Court reasoned that most other states also refuse to apply confrontation rights at pretrial probable cause determinations. The Court determined that the New Mexico Constitution, like the U.S. Constitution, doesn‘t support the application of confrontation rights at pretrial examinations. As a result, the Court concluded that the defendant‘s confrontation rights weren‘t violated when the forensic report was admitted into evidence at his pretrial probable cause determination.

The Court also reexamined the validity of a prior New Mexico case, State v. Mascarenas, when making its determination. Mascarenas said that full confrontation rights apply to a preliminary examination, but the Court explained that this holding is very old, and in fact came out long before the Court began applying the interstitial analysis. The Court also explained that the Mascarenas precedent was “left in serious doubt” by other subsequent rulings that limited the application of the Confrontation Clause in pretrial examinations. In deciding whether to officially overrule Mascarenas here, the Court explained that it would need to “consider such common-sense factor as whether the precedent is a remnant of abandoned doctrine, whether the precedent has proved to be unworkable, whether changing circumstances have deprived the precedent of its original justification, and the extent to which parties relying on the precedent would suffer hardship from its overruling.”

The Court reasoned that, in conducting its interstitial analysis, it explained that Mascarenas is “an anomalous remnant of old and unsound reasoning that is inconsistent with the principles underlying our criminal procedure system.” As such, Mascarenas is an unworkable precedent that‘s inconsistent with the law in most jurisdictions. The Court also reasoned that there was no reasonable possibility of any person‘s reliance on Mascarenas being “unfairly frustrated” based on its earlier analysis. As such, the Court explicitly overruled Mascarenas and held that the right of confrontation in the New Mexico Constitution is strictly a trial right that doesn‘t apply to probable cause determinations in preliminary examinations.

DISCLAIMER

Related Reading:
Defendant‘s Rights to Present Evidence at Grand Jury Extremely Limited
Felony Criminal Process: Pre-Indictment
Grand Jury Investigations: Ham Sandwiches Beware!
Target Letters: Criminal Defense at Grand Jury in New Mexico

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