Discovery in NM criminal cases can make or break your defense. In a nutshell, it is sharing evidence and information by and among the parties apart from attorney-client privilege and court-ordered activities.
As we take a deep dive into this topic, we remind you that every case is unique, and specific laws introduced here may not apply to your defense. However, the information presented will give you food for thought or answer legal questions from a conceptual, general standpoint.
Criminal defense attorney, Marc A. Grano, tackles the topic of what discovery is, the rules that apply, and more. Grano Law Offices, P.C. wrote this post to help individuals and loved ones understand what they face during the criminal justice adjudication process.
What Is Discovery in NM Criminal Cases?
Discovery in a New Mexico criminal case is part of the adjudication process, also known as the formal decision-making phase in court, starting from filing the complaint and ending with the trial. It is the stage where prosecutors and defendants disclose evidence, provide notification, and potentially argue about the admissibility of evidence before a judge.
There are primary types of discovery, including:
- Type 1. Depositions or Witness Statement: A deposition, also known as a “depo,” or Witness Statement is an interview of the prosecution’s witnesses.
- Type 2. Production of Documents: Document and record production is used to obtain documented evidence held by prosecutors and defendants to gain material information about the alleged crime.
- Type 3. Real evidence: Real evidence is any material object introduced at hearings or trials to prove a fact. Examples include weapons, photographs, videos, recordings, and crime scene evidence, to name a few.
- Type 4. Notifications: Depositions and alibi and Entrapment defenses require parties to notify the other within a specific period.
- Type 5. Statements: Expert and witness statements may be admissible as discovery in NM criminal cases.
Discovery in NM criminal cases is rarely straightforward, even for cut-and-dry cases. Prosecutors will still want to inspect the evidence you produce during discovery, and you will also have the chance to discredit their evidence. It is a time-consuming, rule-laden part of the criminal justice system, but necessary so that you do not get convicted for a crime you did not commit, or that remains unproven.
Six Important Rules to Know About Discovery in NM Criminal Cases
The New Mexico Rules of Criminal Procedure outlines the requirements of activities around the discovery process per Article 5. From a general standpoint, this section discusses six of the 11 rules since they apply to many cases. Article 5 sets the rules for prosecutors, defendants, and courts.
Below, we have explained what they are, how they work, and why you should consider them when defending your case during the phase of discovery in NM criminal cases:
Rule 5-501. Prosecutor Evidence Requirements
Rule 5-501 sets the stage for what evidence prosecutors must disclose to you or your lawyer. In New Mexico, they are required to make discovery available within ten days of your arraignment. Your legal team will also have the chance to photocopy, examine, or photograph any materials in their office’s discovery file.
Here is what they must disclose to you upon request:
- Your written or recorded statements
- Your prior criminal record
- Any documentation being used at trial
- Test results made in connection with your case
- Their eyewitness list and their statements
- Their expert witness list and their statements
- All material evidence favorable to the defendant
What do prosecutors not have to disclose during the discovery phase? They do not have to disclose discovery that would: A) expose a confidential informant or B) cause someone physical harm. This information lets defendants know what is expected of prosecutors and provides remedies should their office fail to comply.
Your attorney will also keep track of their errors and omissions throughout your defense during the phase of discovery in NM criminal cases. The failure of the prosecution to provide material evidence may be brought before the Court for appropriate action.
Rule 5-502: Defendant Evidence Requirements
Rule 5-502 outlines what you or your lawyer must do to comply with discovery. In New Mexico, you must make discovery available within 30 days of your arraignment. Prosecutors should also have a chance to photocopy, examine, or photograph any materials in your discovery file.
Here is what you must share with prosecutors upon request during discovery in NM criminal cases:
- Any documentation being used at trial
- Test results being used at trial
- Your witness list and their statements
- Your expert witness list and their statements
You do not have to share anything with prosecutors that falls under attorney-client privilege. Upon completion of discovery, the courts require you to file a certificate of compliance at least ten days before your trial. If you fail to meet this obligation, then the judge has the authority to take adverse actions against you, such as preventing the admission of evidence into your defense, which could negatively affect your chosen strategy during the discovery in NM criminal cases.
Rule 5-503. Getting Testimony for Trial
Rule 5-503 explains rules relating to obtaining testimony for trial evidence. A deposition is an out-of-court meeting where a witness’s statement and formal testimony are taken, recorded, and examined by both parties, either agreed upon by the prosecutor and defendant or ordered by a judge, and before a court reporter. Expert and eyewitness testimony are admissible as evidence during your trial.
Rule 5-505. What to Do If You Find New Evidence
Rule 5-505 tells prosecutors and defendants what to do if they find new evidence. Essentially, the rule instructs your lawyer or the prosecutor to immediately disclose and give written notice of the new disclosure. Otherwise, the judge could prohibit you from calling a witness or presenting evidence if you fail to comply with this rule.
Rule 5-506. How Courts Treat Grand Juries During Discovery in NM Criminal Cases
Rule 5-506 shares details regarding the adjudication of grand jury indictments. A grand jury is a group of citizens determining if prosecutors have enough evidence to bring charges against you, usually during the arraignment. If they believe prosecutors have probable cause, or 51 percent of the truth or higher, you face an indictment, and your case will proceed to the pretrial phase.
Under the New Mexico Rules of Criminal Procedure, discovery in NM criminal cases address indictments and instruct courts to:
- Make indictments public when filed with the court
- Judges can order a sealed indictment until after your arrest takes place
- Either party can request a sound recording copy of the indictment proceedings
However, the court might deny a request to release the recording in matters where someone’s testimony could cause them a substantial harm risk. A judge could also determine that someone’s testimony is irrelevant to your case and may order a redaction, or removal, of that portion.
Rule 5-507. How Courts Handle Sensitive Depositions
Rule 5-507 of discovery in NM criminal cases deals with taking the testimony or formal statement from an important witness, but the witness is reluctant to do so as it could cause them “annoyance, embarrassment, oppression, undue burden or expense, the risk of physical harm, intimidation, bribery or economic reprisals.” If the witness would likely suffer for giving their statement, the judge can make it less burdensome for their testimony.
A judge could add one or more of the following restrictions to a deposition order:
- A denial of the deposition
- A deferment of the deposition
- Time, date, and place specifications
- Scope limitations on time, date, and place
- Who may or may not be in the room of the deposition
- Seal depositions or specific information and only opened by court order
- No disclosure of trade secrets or other confidential information
If you have questions about prosecutors failing to provide evidence or witnesses available in your case, address them with a criminal defense law firm, like Grano Law Offices, P.C. We can help you determine the probable best course of action for the given circumstances and according to your legal objectives.
Rule 5-508. Using Alibi or Entrapment Defenses
Rule 5-508 addresses what courts want you to do if you use an alibi or assert an entrapment defense. An alibi defense is when you could not have committed the crime because you were somewhere else and have evidence of that fact. An entrapment defense is when you allege that police created evidence of a situation where you had no choice but to commit the crime. Since both defenses are specific and subject to intense adjudication, our state laws ensure strict measures are in place.
Below, we have outlined the requirements associated with using an alibi or entrapment defense during discovery in NM criminal cases, including the need for your lawyer to:
- Requirement #1. Provide a notice of intent to use one of these defenses, and
- Requirement #2. Do so at least ten days or more before trial, and
- Requirement #3. Share specific information and evidence proving the defense
Alibi and entrapment defenses require advance notification since they are complete defenses. In other words, proof of either defense would negate the need for a criminal trial, thereby forcing courts to dismiss the charges against you if proven by your lawyer with discoverable evidence.
Discovery in NM Criminal Cases Is Complex
We have just hit the tip of the iceberg regarding discovery in NM criminal cases. It is critical to understand the process, as well as the other phases in court, affecting your defense. Ensure you seek legal advice from an experienced criminal defense lawyer who can apply the law to your specific situation while fighting to meet your objectives, whether total freedom or favorable sentencing terms.
Get Your Free Case Strategy Session with Marc
You do not have to handle discovery in NM criminal cases alone. Marc A. Grano is a recognized, highly experienced criminal defense lawyer in Las Vegas, NM, proudly serving the people charged in Santa Fe, Taos, Santa Rosa, Mora, Raton, Rio Rancho, Bernalillo, and Española.
The legal team at Grano Law Offices, P.C. will arrange for a telephone or virtual visit so that you can get the help you want and deserve. Call (505) 426-8711 or message us via the contact form below to schedule your Free Case Strategy Session now.
