Monday, February 9, 2009

Rights Of Grand Jury Target

The New Mexico Supreme Court has held that a grand jury target is entitled to a procedural remedy when the prosecuting attorney declines to present potentially exculpatory evidence to the grand jury that is considering an indictment:

In light of the Legislature’s clear intent to provide the grand jury with more information from the target of a grand jury investigation, and in light of the judiciary’s responsibility to ensure the equitable and efficient operation of the grand jury system, we conclude that the grand jury judge has a role to play when the prosecutor does not want to alert the grand jury to the existence of the target-offered evidence. To allow the prosecutor’s screening function to proceed unchecked pre-indictment invites post-indictment inefficiencies into the system. And to assume that all damage flowing from an unjustified indictment can be cured post-indictment is to ignore the lasting injury that even an unsuccessful indictment can inflict.

We therefore remand this matter to the district court to resolve the outstanding disputes between the parties regarding the extent to which the grand jury should be alerted to evidence offered by Petitioner. Because Petitioner has apparently submitted a redrafted letter to the district attorney requesting that the grand jury be alerted to specific evidence, the district attorney should file a motion with the grand jury judge if the district attorney believes that any of the target-offered evidence is inappropriate for submission to the grand jury. The grand jury judge shall then proceed to rule on the motion in a manner consistent with this opinion. Although we endeavor in this opinion to provide the grand jury judge with a workable framework for resolving the disputes in this case, we also request that our Rules of Criminal Procedure for the District Courts Committee consider whether rule amendments are needed based upon the procedure we have outlined here today.

(Mike Frisch)

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