The stage at which the government decides to accuse or not is important—even critical-–and must be treated as such. An indictment that turns out to be improvident is devastating to the person indicted, and completely wasteful of judicial

and legal resources. When an indictment is unsupportable, it is damaging to the integrity of the system as a whole.

For all the resources that our system invests in the

grand jury, the New Mexico Legislature wanted it to provide a more reliable result. The New Mexico Legislature was tired of New Mexico being a “ham sandwich” state, and thus

enacted the 2003 Amendments to the Grand Jury Statute.

The New Mexico Legislature intended to have a more reliable and more thorough procedure with more due process and a process closer to that provided by preliminary hearings

which are conducted in many New Mexico counties. To do this the Legislature provided for information from the target to be submitted to the grand jury, and gave

the grand jury the duty to order up and explore any evidence that tends to disprove, reduce or otherwise show a charge is unfounded. It also provided procedures such as review of competency, requiring impartial jurors and provided mechanisms for gathering evidence in order to effect its intent.

The prosecutor aide to the grand jury

must submit a target’s submission to the grand jury, or obtain the permission of the grand jury judge to not do so. The grand jury judge would authorize withholding the

information if the State showed that the target’s submission was not lawful, competent, and relevant. A violation of the procedures requires a dismissal without

prejudice. Prejudice is not required to be shown. By this approach the entire system benefits and retains its integrity.

[New Mexico Supreme Court adopted Amicus position in January 2009]