What is a Grand Jury Hearing?

What is a Grand Jury Hearing?

In New Mexico, before you are charged in the District Court with a felony, you have the right to a formal finding of probable cause. This is a protection against unsubstantiated charges harassing a person with the criminal courts. The State must have evidence that meets a certain level of proof: probable cause that you committed a crime. The prosecutor can establish this level of proof in two ways: either by a judge in a preliminary hearing or by a panel of grand jurors.

A Grand Jury is a panel of twelve persons who are called to serve for a period of time by the prosecuting attorney. They are supposed to screen out meritless cases and provide a check against overly ambitious prosecutors. While a judge is assigned to supervise from afar, a Grand Jury Hearing proceeds with no judge present. Instead, other than the prosecutor, the jurors, and a person recording the hearing, the room is by law empty. This is because a Grand Jury is a secret proceeding by law. The target of the Grand Jury is not present unless the target chooses to testify. Even then, the target cannot enter until it is his or her turn to testify.

The prosecutor will start by informing the jurors of the definition of the charges it seeks against the target. The prosecutor will call a witness who will state, under oath, the answers to the prosecutor’s questions. There are no rules of evidence, so the witness, who is often a police officer and may not have actually witnessed the events in question, can tell the jurors what someone else told them.

Crucially, an alleged victim or eyewitness may not be called at a Grand Jury because, if for no other reason, the prosecutor doesn’t need them to testify since the police officer can testify as to what they said. Due to this distance from the first-hand evidence, a Grand Jury often provides less scrutiny into the facts than a preliminary hearing, where the witness must testify live and can be cross-examined by opposing counsel.

The Grand Jury is tasked with determining whether the testimony from the witness reaches probable cause for the charges the prosecutor seeks. Since probable cause is a low level of proof, the Grand Jurors typically will agree that the State meets its burden, and the charges can proceed forward. The jurors and the prosecutor will sign an indictment that formally charges the target. The next step is to have a District Court Arraignment.

Since the prosecutor is not required to disclose evidence to the target or the target’s lawyer before a Grand Jury hearing, and cannot even be present for the hearing, a Grand Jury hearing in a large portion of cases will give the charges that the prosecutor asks for, so long as they roughly match what the officer witness states.

The target can present his or her own evidence and testimony by submitting a Bort-Jones letter ahead of the hearing. This move can sometimes undermine or lessen the charges the prosecution brings. However, it is an important strategic question whether to present such evidence at this early stage, while the defense still has not received discovery. Certainly, many attorneys are very hesitant to put their witnesses, and even more so their client, before a Grand Jury, potentially exposing them to very difficult questions under oath by the prosecutor.

These important strategic considerations make it crucial to consult with an attorney the moment you are alerted to a Grand Jury where you are the target.

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