N.M. Stat. » Chapter 38 — Trials
New Mexico Statutes

N.M. Stat. § 38-5-16 (2026)

Challenge to jury array

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Any party to a civil action or defendant in a criminal action, at the opening of trial and before the empaneling of the jury is commenced, by motion to quash the jury array, may challenge the jury panel on the ground that the members thereof were not selected substantially in accordance with law. If the motion is sustained, then the trial will be stayed until a jury panel has been selected and qualified in accordance with law. Such a challenge is waived if not raised before the trial jury panel has been sworn and selection of the trial jury commenced.

History: 1953 Comp., § 19-1-16, enacted by Laws 1969, ch. 222, § 16.

ANNOTATIONS

Cross references. — For challenges to jurors in civil and criminal cases generally, see 38-5-14 NMSA 1978.

For challenges of jurors in civil cases, see Rule 1-038E NMRA.

For challenges of jurors in criminal cases, see Rule 5-606 NMRA.

Representative cross-section of the community. — In order to show a prima facie violation of the fair cross-section requirement, a defendant must demonstrate that (1) the group alleged to be excluded is a "distinctive" group in the community, (2) the group’s representation in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community, and (3) this under-representation results from the systematic exclusion of the group in the jury- selection process. State v. Casillas, 2009-NMCA-034, 145 N.M. 783, 205 P.3d 830, cert. denied, 145 N.M. 783, 213 P.3d 507.

Section permits challenge to the jury panel on the ground that the members thereof were not selected substantially in accordance with law. State v. Gonzales, 1971-NMCA- 007, 82 N.M. 388, 482 P.2d 252, cert. denied, 82 N.M. 377, 482 P.2d 241.

Denial of motion to quash held proper. — Even where trial judge, in denying motion made under this section, incorrectly ruled that motion was not timely, motion was otherwise defective where defendant made no claims that jury array was defective or was in any way not selected and qualified according to law, but rather appeared to be asking the court to find out whether the selection of jury array was proper, and trial court was correct in denying the motion. State v. Deats, 1971-NMCA-089, 82 N.M. 711, 487 P.2d 139.

Waiver not established. — Section 38-5-16 NMSA 1978 does not bar objections to unlawful jury selection where a party does not know the selection process has been unlawful prior to swearing in the prospective jury panel and jury selection has been commenced. State v. Flores, 2015-NMCA-002, cert. granted, 2014-NMCERT-012. Violation of section must be established. — An assertion that the jury panel includes an excessive proportion of persons related to law enforcement personnel and a request for a continuance in order to obtain evidence related to this assertion will not be granted where no violation of this section is established. State v. Trujillo, 1982-NMSC-145, 99 N.M. 251, 657 P.2d 107 (1982).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 47 Am. Jur. 2d Jury § 247 et seq.

Failure of juror in criminal case to disclose his previous jury service within disqualifying period as ground for reversal, 13 A.L.R.2d 1482.

Racial or ethnic prejudice of prospective jurors as proper subject of inquiry or ground of challenge on voir dire in state criminal case, 94 A.L.R.3d 15.

Religious belief, affiliation or prejudice of prospective juror as proper subject of inquiry or ground for challenge on voir dire, 95 A.L.R.3d 172.

Age group underrepresentation in grand jury or petit jury venire, 62 A.L.R.4th 859.

Propriety, under state statute or court rule, of substituting state trial juror with alternate after case has been submitted to jury, 88 A.L.R.4th 711.

50 C.J.S. Juries §§ 260 to 266.

Notes of Decisions
Cited in 10 cases (1 in the last 5 years), 1982–2021 · leading case: State v. Flores, 2015-NMCA-002, 340 P.3d 622.
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State v. Flores, 2015-NMCA-002, 340 P.3d 622. · cites it 11× “Waiver Pursuant to NMSA 1978, § 38-5-16 (1969) The State also argues that because Defendant did not object to the jury venire composition prior to the empaneling of the jury, Defendant waived her right to object under Section 38-5-16.”
State v. Casillas, 2009-NMCA-034, 145 N.M. 783. · cites it 4× “Motion to Strike Jury Pool {9} Defendant argues that the district court erroneously denied his motion to strike the jury pool under NMSA1978, § 38-5-16 (1969). This presents a mixed question of law and fact that we review de novo.”
State v. Casillas, 205 P.3d 830 (N.M. Ct. App. 2009). · cites it 4× “Following a two-day trial, Defendant was found guilty of all charges. DISCUSSION 1. Motion to Strike Jury Pool {9} Defendant argues that the district court erroneously denied his motion to strike the jury pool under NMSA 1978, § 38-5-16 (1969).”
State v. Trujillo, 657 P.2d 107 (N.M. 1982). · cites it 2× “Trujillo did not establish any violation of Section 38-5-16, N.M.S.A.1978, which permits a challenge to the jury panel on the ground that its members were not selected in accordance with law.”
State v. Gonzales, 808 P.2d 40 (N.M. Ct. App. 1991). “See NMSA 1978, 38-5-16 (Repl.Pamp.1987). CONCLUSION For the reasons given above, we remand this case to the trial court for a hearing on the issues of whether the prosecution used its peremptory challenges to systematically exclude jurors on the basis of their race or gender.”
State v. Flores, 2015-NMCA-002. · cites it 12× “Waiver Pursuant to NMSA 1978, § 38-5-16 (1969) {10} The State also argues that because Defendant did not object to the jury venire composition prior to the empaneling of the jury, Defendant waived her right to object under Section 38-5-16.”
State v. Flores, No. 32,709 (N.M. Ct. App. Sept. 23, 2014). · cites it 12× “Waiver Pursuant to NMSA 1978, § 38-5-16 (1969) 18 {10} The State also argues that because Defendant did not object to the jury venire 19 composition prior to the empaneling of the jury, Defendant waived her right to object 20 under Section 38-5-16.”
State v. Lucero (N.M. Ct. App. 2021). · cites it 2× “{7} Under NMSA 1978, Section 38-5-16 (1969), a defendant may, before the empaneling of the jury, move to quash or strike the jury venire on the grounds that the venire was not selected substantially in accordance with the law.”
State v. Eidson, No. 29,750 (N.M. Ct. App. Oct. 26, 2011). · cites it 2× “See NMSA 1978, § 38-5-16 (1969) (stating that a criminal defendant’s 3 challenge to the improper selection of a jury “is waived if not raised before the trial 4 jury panel has been sworn and selection of the trial jury commenced”); State v.”
State v. Ashley, No. 32,974 (N.M. Ct. App. Sept. 9, 2015). · cites it 2× “9 {16} Finally, Defendant cites NMSA 1978, Section 38-5-11(A) (2005), which 10 provides that “[t]he court shall empanel jurors in a random manner[,]” NMSA 1978, 11 Section 38-5-5(B) (1997), which defines “jury tampering” as “the selection or drawing 12 of jurors other than in…”
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