Saturday, January 29, 2005

GRAND JURY AND RULES OF EVIDENCE

CRIMINAL JUSTICE REFORM. Should the Legislature pass a memorial requesting that the Supreme Court make a change in the Rules of Evidence?

Rule 11-1101 D (2) of the Rules of Evidence (a rule of the Supreme Court of New Mexico) provides that the formal rules of evidence do not apply in certain cases. If the words "preliminary hearings and grand jury proceedings" were added, the formal rules of evidence in criminal cases would not apply in cases heard before the grand jury, and they would not apply in cases heard by preliminary hearing before a magistrate. The law of privilege (for example, priest and penitent, or lawyer and client) would still apply; but hearsay would not be prohibited.

For example, in a car theft case, in which a Cadillac was stolen in Long Beach, California, and recovered in Albuquerque in the possession of the accused, it would not be necessary for the District Attorney to bring the witness (car’s owner) from Long Beach for a grand jury hearing or for a preliminary hearing before a magistrate in Albuquerque. An affidavit from the owner could be used, or the investigating officer could testify under oath as to the report and details from the alleged victim.

Why should the accused be entitled to force the California car owner to come to New Mexico to testify at this stage of the proceedings? The right to confront the witnesses will apply, but at trial. There is no constitutional requirement that the witnesses testify in person at grand jury or preliminary hearing proceedings. If the accused claims that he had permission to take the car, then that is a different matter, and the District Attorney would not have to, but might want to bring the alleged victim to testify in person, and that could be done. But if there is no claim that the car was not stolen, then why should the victim witness be required to come to New Mexico to testify that her car was stolen?

If the case were being prosecuted in federal Court, the formal rules of evidence would not apply to the grand jury proceedings, nor to the preliminary hearing. The federal rules of criminal procedure allow hearsay in grand jury and preliminary hearings. They have for more than 30 years, at least.

This rule change can be made by the Supreme Court of New Mexico, without the necessity of a hearing. Should the Legislature pass a memorial requesting such a rule change?

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