SHOULD CRIMINAL PROCEDURE SIX-MONTH RULE BE AMENDED?

The six-month rule states that felony criminal cases in New Mexico must go to trial within six months. If a felony case does not go to trial within six months, the rule requires that the Judge dismiss the case and release the accused, free of such charges, forever. Persons accused of murder have been set free on this technicality. The archives of the Albuquerque Journal report many cases where charges of murder, vehicular homicide, and other felonies were required to be dismissed, and the accused set free, never to be tried again, because of the six-month rule. Search the archives under "six month rule."

An accused has a constitutional right to a speedy trial. We are not talking about that. The constitutional speedy trial rule requires a trial within a reasonable time, and is a necessary safeguard. A case is not dismissed under the constitutional speedy trial rule unless the accused demands a trial, and the accused is prejudiced by the delay in trial.

The six-month rule is a so-called "speedy trial" rule, but it is not required by the State or federal constitution. Under this rule, the accused may be out on bail, may be avoiding trial, may not want a trial, may be delaying the trial in every way he can, and yet he must be set free, never to be tried, if the trial does not occur within six months.

Extensions of the rule may be allowed, but an application must be made by the prosecutor. The most egregious miscarriages of justice have occurred when the prosecutor intends to apply for an extension, but forgets to, and the six-month rule runs out and the accused goes free. A simple solution is for the rule to be changed to provide that if the rule is violated, the Judge may dismiss the case but is not required to; the Judge may impose some other sanction if that is warranted. At present the case must be dismissed "with prejudice," so that it may never be tried and the accused goes free, regardless of the strength of the evidence. How do we explain such a dismissal, without trial, and release of the accused without further charges, to the family of the victims? We are talking here about gross miscarriages of justice; not many, that is true; but too many. Not one should occur.

The federal rule of criminal procedure allows the Judge to dismiss the case without prejudice, allowing the prosecutor to re-file the case. The New Mexico rule can be changed to follow the federal rule. This would take action by the Supreme Court of New Mexico, but would not require any action by the Legislature. The Legislature may want to pass a memorial asking the Supreme Court to amend the six-month rule.