N.M. Stat. § 31-6-4 (2026)

permitted to have attorney present.
   A. A grand jury shall conduct its hearing during the usual business hours of the
court which convened it. Hearings and deliberations may be conducted at any place
ordered by the convening judge and provided by the court. Inspections or grand jury
views of places under inquiry may be made when directed by the foreman wherever
deemed necessary within the county, but no oral testimony or other evidence may be
received except during formal private sessions.

   B. All deliberations shall be conducted in a private room outside the hearing or
presence of any person other than the grand jury members. All taking of testimony shall
be in private with no persons present other than the grand jury, the persons required or
entitled to assist the grand jury and the attorney, if any, of the target.

    C. Persons required or entitled to be present at the taking of testimony before the
grand jury include the district attorney and the attorney general and their staffs,
interpreters, court reporters, security officers, the witness and an attorney for the target.
Security personnel may be present only with special leave of the district court and are
neither potential witnesses nor otherwise interested parties in the matter being
presented to the grand jury.

    D. If a target has his attorney present, the attorney may be present only while the
target witness is testifying and may advise the witness but may not speak so that he can
be heard by the grand jurors or otherwise participate in the proceedings. At least
twenty-four hours before grand jury proceedings begin, the target's attorney may submit
proposed questions and exhibits to the district attorney or the attorney general.

History: 1953 Comp., § 41-5-4, enacted by Laws 1969, ch. 276, § 4; 1979, ch. 337, § 2;
1981, ch. 262, § 2; 2003, ch. 363, § 2.

                                      ANNOTATIONS

Repeals. — Laws 1969, ch. 276, § 14, repealed former 41-5-4, 1953 Comp., relating to
trial of challenges to the grand jury.
The 2003 amendment, effective July 1, 2003, deleted "witness" following "target" in
Subsection B and present Subsection D; rewrote Subsection C; and added Subsection
D.

Purpose of section is to maintain utmost secrecy; therefore, it has been the practice
for more than 200 years for the investigations of the grand jury to be in private, except
that the district attorney and his assistant are present, since secrecy is the vital requisite
of grand jury procedure. State v. Hill, 1975-NMCA-093, 88 N.M. 216, 539 P.2d 236.

"Unusual business hours". — Although the language of this section requires the
grand jury to conduct its hearing during the usual business hours of the court, a
distinction must be made between the business hours of the judge who convenes the
grand jury and the business hours of the court. Because a particular judge is
unavailable after 5:00 p.m. does not make access to the court impossible. State v.
Weiss, 1986-NMCA-128, 105 N.M. 283, 731 P.2d 979, cert. denied, 105 N.M. 290, 731
P.2d 1334.

Usual business hours. — Where the grand jury was convened at 8:30 a.m. and
returned a true bill at 2:12 a.m. on the following morning, this unusually extended
session of the grand jury was not a substantial violation of defendants' rights, though it
constituted a technical violation of this section. State v. Weiss, 1986-NMCA-128, 105
N.M. 283, 731 P.2d 979, cert. denied, 105 N.M. 290, 731 P.2d 1334.

"Prejudice" is appropriate constitutional standard. — Inasmuch as "prejudice" is an
appropriate standard in considering the exercise of constitutional rights before a trial
jury which determines guilt, there is no reason to apply a stricter standard in considering
the exercise of constitutional rights before a grand jury which determines probable
cause to accuse. State v. Martinez, 1982-NMCA-002, 97 N.M. 585, 642 P.2d 188, cert.
denied, 98 N.M. 51, 644 P.2d 1040.

No opportunity for improper influence on grand jury allowed. — The law protects
the fairness and impartiality of the grand jury hearing. Not only must there be no
improper influence exercised, there must be no opportunity for improper influence on
the grand jury. State v. Hill, 1975-NMCA-093, 88 N.M. 216, 539 P.2d 236.

Presence of unauthorized persons in a grand jury proceeding jeopardizes the basic
purpose of the proceeding and opens the door to a number of potential abuses. State v.
Bigler, 1982-NMCA-136, 98 N.M. 732, 652 P.2d 754, cert. denied, 98 N.M. 762, 652
P.2d 1213.

Type of evidence presented not included within meaning of section. — This
section does not deal with the type of evidence which may be presented to a grand jury.
State v. Evans, 1976-NMCA-113, 89 N.M. 765, 557 P.2d 1114, cert. denied, 90 N.M. 7,
558 P.2d 619.
Unauthorized person's presence requires dismissal of indictment. — The
presence of an unauthorized person before the grand jury requires dismissal of the
indictment without the necessity of showing prejudice. Davis v. Traub, 1977-NMSC-049,
90 N.M. 498, 565 P.2d 1015.

Issuance of writ of prohibition. — Writ of prohibition is properly issued when the
indictment is dismissed because of the presence of an unauthorized person before the
grand jury. Davis v. Traub, 1977-NMSC-049, 90 N.M. 498, 565 P.2d 1015.

District attorney's presence during deliberations prohibited. — The presence of the
district attorney during deliberations of the grand jury is specifically and unequivocably
prohibited by this section, which is clear and is not subject to construction. No one other
than the grand jury members may be present during the time the grand jury is
deliberating. Like other statutes governing grand jury proceedings, it is to be rigorously
observed and strictly enforced. Baird v. State, 1977-NMSC-067, 90 N.M. 667, 568 P.2d
193.

Impropriety of district attorney's presence may be waived. — Notwithstanding the
fact that district attorney violated this section by his presence during grand jury
deliberations, defendant charged with murder waived her objections based upon such
improprieties by entering into a plea and disposition agreement which was approved
and accepted by the trial court through a plea of no contest to the charge of involuntary
manslaughter. The defects of the grand jury proceedings were not so fundamental that
they could not be waived. Baird v. State, 1977-NMSC-067, 90 N.M. 667, 568 P.2d 193.

Actions of state or defense attorneys insufficient to invalidate indictment. — The
mere fact that assistant attorneys general disagree in the grand jury's presence, or that
defense attorneys would have presented different legal advice to the grand jury, does
not invalidate the indictment. State v. Carr, 1981-NMCA-029, 95 N.M. 755, 626 P.2d
292, cert. denied, 95 N.M. 669, 625 P.2d 1186, and cert. denied, 454 U.S. 853, 102 S.
Ct. 298, 70 L. Ed. 2d 145 (1981), overruled on other grounds by State v. Olguin, 1994-
NMCA-050, 118 N.M. 91, 879 P.2d 92. Sct. Olguin affirms app Olguin.

Attorney not "present" merely because he took deposition testimony. — Because
the grand jury has the power to subpoena "records or other evidence relevant to its
inquiry," the grand jury could properly consider deposition testimony, and the fact that
the deposition was taken by attorney did not make attorney present, within the meaning
of this section, when the deposition was read to the grand jury. State v. Evans, 1976-
NMCA-113, 89 N.M. 765, 557 P.2d 1114, cert. denied, 90 N.M. 7, 558 P.2d 619.

No statutory right to counsel. — Neither the Grand Jury Act nor the Public Defender
Act provides a target witness testifying before a grand jury with a right to counsel such
that an indictment must be dismissed if counsel is not present and there is no express
voluntary, knowing, and intelligent waiver of counsel's presence. State v. Tisthammer,
1998-NMCA-115, 126 N.M. 52, 966 P.2d 760, cert. denied, 126 N.M. 107, 967 P.2d
447.
Postponement to obtain counsel. — A target witness has no statutory right to
counsel; therefore, the state was not required to postpone the grand jury proceedings to
allow the witness time to obtain counsel. State v. Tisthammer, 1998-NMCA-115, 126
N.M. 52, 966 P.2d 760, cert. denied, 126 N.M. 107, 967 P.2d 447.

When district attorney's assistant not permitted in grand jury room. — It is highly
improper for counsel employed to prosecute a case to be permitted to go into the grand
jury room where the defendant cannot be heard and has no one to represent him. This
duty should be performed alone by the proper officer of the law and assistant to the
district attorney may not be present or participate in the grand jury hearing room. State
v. Hill, 1975-NMCA-093, 88 N.M. 216, 539 P.2d 236.

Prosecuting attorney assists grand jury, but not as partisan. — While this statute
contemplates that the prosecuting attorney will assist the grand jury, nevertheless the
prosecuting attorney does not appear before the grand jury as a partisan, bent upon
obtaining an indictment; the presence and participation of an attorney ordered by the
trial judge to assist in the prosecution of a case, who was employed by the father-in-law
of the deceased, in the grand jury hearing was unlawful and in violation of this section
and invalidated the indictment. State v. Hill, 1975-NMCA-093, 88 N.M. 216, 539 P.2d
236.

Conflict of interest precludes prosecutor's appearance. — The prosecutor himself is
unauthorized to appear before the grand jury if there is a conflict of interest (1) in which
his own property is damaged by criminal mischief, or (2) arising from prior employment
with the defendant; since the prosecutor is a public officer with duties quasi-judicial in
nature, with an obligation to protect not only the public interest but also the rights of the
accused, in the performance of his duties he must not only be disinterested and
impartial but must also appear to be so, scrupulously refraining from words or conduct
that may influence the decision of the grand jury and observing limits of essential
fairness. State v. Hill, 1975-NMCA-093, 88 N.M. 216, 539 P.2d 236.

Attorney general's investigator not "authorized person" to assist in hearing. —
Claim that an investigator for the attorney general was an "authorized person" and his
presence in the grand jury room was not improper inasmuch as he had been appointed
a grand jury aide pursuant to Section 31-6-7 NMSA 1978, had no merit because grand
jury aides are not authorized by statute to be present in the grand jury room unless they
fall within the categories specified in this section. Davis v. Traub, 1977-NMSC-049, 90
N.M. 498, 565 P.2d 1015.

"Staff" construed. — Attorney general's assertion that any member of his staff could
properly be present during the grand jury hearings was an erroneous interpretation of
this section and ignored the meaning of the words "persons required or entitled to assist
the grand jury." Such persons are enumerated in the statute. Staff in this context refers
to the legal staff of the district attorney or the attorney general's office, e.g. assistant
district attorneys or assistant attorneys general. Davis v. Traub, 1977-NMSC-049, 90
N.M. 498, 565 P.2d 1015.
Presence of person not officially listed as court reporter upheld. — Person who
was present during grand jury deliberations for purpose of monitoring an electronic
device that recorded the grand jury testimony was within the definition of court reporter
for purposes of this section. Defendant's claim that such person was not authorized to
be present because he was not listed as official court reporter was frivolous, there being
no contention that the operator's presence was not for the purpose of operating the
recording device. State v. Baird, 1977-NMCA-041, 90 N.M. 678, 568 P.2d 204, aff'd,
1977-NMSC-067, 90 N.M. 667, 568 P.2d 193.

"Target witness", referred to in Subsections B and C, is anyone who is the focus of a
grand jury's investigation. State v. Hall, 1985-NMCA-075, 103 N.M. 207, 704 P.2d 461.

Failure to notify of target status. — Defendant was not entitled to notice that he was a
target of the grand jury investigation when at the time the offense (perjury before the
grand jury) had not yet been committed. State v. Albin, 1986-NMCA-046, 104 N.M. 315,
720 P.2d 1256, cert. denied, 104 N.M. 246, 719 P.2d 1267, overruled on other grounds
by State v. Benavidez, 1999-NMCA-53, 127 N.M. 189, 979 P.2d 234.

Simultaneous appearance of two witnesses violates statute. — Since this section
refers to "the witness" in the singular, incident which occurred during grand jury
investigation wherein two witnesses appeared before the grand jury simultaneously
clearly violated the terms of the statute. Davis v. Traub, 1977-NMSC-049, 90 N.M. 498,
565 P.2d 1015.

Presumption of prejudice when indictment quashed. — A showing of prejudice is
not required when an unauthorized person is present at grand jury proceedings in order
to have the indictment quashed. Prejudice is presumed. State v. Hill, 1975-NMCA-093,
88 N.M. 216, 539 P.2d 236.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 38 Am. Jur. 2d Grand Jury § 30 et seq.

Communicating with grand jury as contempt, 29 A.L.R. 489.

Communicating with grand jury or member thereof as criminal offense, 112 A.L.R. 319.

Duty of secrecy on part of members of, or witnesses or other persons present before,
grand jury, 127 A.L.R. 272.

Absence of grand jurors during hearing as affecting indictment, 156 A.L.R. 248.

Validity and construction of statutes permitting grand jury witnesses to be accompanied
by counsel, 90 A.L.R.3d 1333.

Presence of unauthorized persons during state grand jury proceedings as affecting
indictment, 23 A.L.R.4th 397.
Presence of persons not authorized by Rule 6(d) of Federal Rules of Criminal
Procedure during session of grand jury as warranting dismissal of indictment, 68 A.L.R.
Fed. 798.

38A C.J.S. Grand Juries §§ 68, 69, 70, 71, 73.