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Tutorial on the crimes of stalking and harassment for New Mexico judges

Arraignments Summary

The purposes for and judge's role in arraignments are the same in stalking and harassment cases as they are in every other type of criminal case. An arraignment in a stalking or harassment case includes, as applicable, explaining to the defendant the purpose of an arraignment and informing the defendant about the following:

  1. the offense charged;
  2. the maximum penalty and mandatory minimum penalty, if any, provided for the offense charged;
  3. his or her rights, if applicable, on such matters as bail, assistance of counsel, counsel at state's expense, preliminary examination, jury trial, and right to remain silent and that any statement made by the defendant may be used against him or her;
  4. the various types of pleas and the consequences of those pleas;
  5. that a plea will be taken; and
  6. bail and conditions of release.

Arraignments in Stalking and/or Harassment Cases

However, given the unique nature of stalking and harassing behaviors and patterns of conduct the judge should conduct these arraignments with a heightened awareness of the following:

  • The nature of the alleged conduct and the number of times it was alleged to have occurred. (For example, did it involve a seemingly small number of instances versus dozens or even hundreds of separate instances of conduct? Was the conduct characterized by "bothersome" acts that caused annoyance versus egregious acts that caused severe reactions?)
  • The methods and resources used to allegedly engage in such conduct. (For example, did the conduct require significant expenditures of time and/or resources perhaps indicative of the intensity of defendant's ill intent? Do the allegations suggest an escalating pattern of conduct in terms of methodology, time and resources?)
  • The specific defendant as well as alleged victim in the case. (For example, do the defendant and the victim know each other on any level and, if so, how? Or are they total strangers to each other?)
  • The affects the arraignment might have on the involved individuals. (For example, are there indications from the defendant that he or she will or will not abide by the conditions of release, perhaps in reaction to the prosecution having been commenced? For the victim, are there indications of extreme or severe reactions to the alleged conduct or perhaps a false sense of security at this early stage in the prosecution?)

Information on, or indications of, these considerations might be somewhat sparse at the early stage of arraignment. The judge should nonetheless maintain an awareness of those matters, especially when determining conditions of release for the accused.

In summary, two areas to which the judge should pay special attention during arraignment are:

  1. the statutory rights of the victim under the Victims of Crime Act; and
  2. the conditions of release imposed on the defendant by the court.

Victim's Rights at Arraignment

In any criminal case, the victim may or may not be present for the arraignment since it takes place very early in the criminal prosecution process. Given the requirements of the Victims of Crime Act, the judge should affirmatively inquire in court whether the victim is present at the arraignment and, if so, whether he or she would like to make a statement to the court at that time. See, §31-26-10.1(A).

At an arraignment, the judge might consider making efforts, in a neutral and unbiased manner, to ensure that the district attorney's office will meet its obligations under the Victims of Crime Act with respect to the victim. For example, the judge could state "Counsel for the State, will you be contacting Mr./Ms. __________ [name of victim] regarding future court proceedings in this matter?"

Arraignment and Conditions of Release

Given the repetitious nature of stalking and harassment, the conditions of release imposed upon defendant can be extremely important in deterring continuing behavior or commencing new patterns of inappropriate behavior. The conditions of release can also impact how the victim feels about his or her safety or the safety of household members as well.

As with any criminal offense, both conditions of release and bail amounts in stalking and harassment cases should be imposed to reasonably assure that the accused appears in court as required, to deal with the safety of the victim and the community as a whole, and to promote the orderly administration of justice. See, e.g., Rule 6-401(B) (factors to consider in determining bail and release conditions).

In any arraignment, one of the primary factors the court should consider when determining conditions of release is the nature and circumstances of the offense charged. See, e.g., Rule 6-401(B)(1). This is true in cases alleging harassment or stalking. These types of cases differ from some other criminal offenses which may involve a single, traumatic event. In contrast, stalking and harassment involve multiple instances of conduct engaged in and pursued under circumstances intended to cause a severe emotional reaction in the intended victim.