The felony criminal process typically begins in the metropolitan court in the Albuquerque area, and in the magistrate courts in the remainder of the State of New Mexico. However, the case must be transferred to State District Court for the felony prosecution.
The Grand Jury or Preliminary Hearing
The transfer to District Court occurs through a grand jury or preliminary hearing. Each has the same purpose which is to determine whether or not there is probable cause to proceed with the criminal complaint on formal felony charges.
The various judicial districts in New Mexico handle the process according to custom, and probably more importantly according to resources. In Albuquerque, cases are sent to grand jury. In Rio Rancho and Santa Fe, it is a mixed bag sometimes going to grand jury, sometimes going to preliminary hearing. In most areas outside the major metropolitan areas of New Mexico, the case proceeds to preliminary hearing.
Several Hazards at Grand Jury
In many cases, the grand jury or preliminary hearing can appear to be a mere formality. In fact, it is often said that a grand jury could indict a ham sandwich.
There are few rights at the grand jury stage. In addition, there are a number of hazards. For instance, a defendant can testify. However, his or her attorney cannot address the grand jury nor ask questions. The best the attorney can do is whisper into the defendant’s ear which does not always come across too well with the grand jury. There is often little to gain through a defendant’s testimony with much to lose since the testimony is admissible in the later criminal proceedings.
Rights at Grand Jury
As mentioned, there are few rights at the grand jury stage. However, there are occasions when a defense at this stage can prove successful.
This would include the issuance of a letter to the District Attorney regarding compulsory introduction of exculpatory evidence which would include documentary evidence, testing results, favorable witness statements and other favorable evidence.
Important to Contact an Experienced Criminal Attorney
As such, a defendant should consult with an experienced criminal defense attorney as soon as possible upon learning of the hearing. This would typically be by target letter assuming the district attorney has the current address of the defendant. Once the target letter is issued, there is very limited time to assess the possible defenses and appropriate action at this stage.
Whether a case goes to grand jury or preliminary inquiry, a defendant should consult an experienced criminal attorney immediately upon receiving notice of the hearing.