Overview

Keyword Index

SECTION 1.1
JURISDICTION; TIME LIMITS

1.1-1 Jurisdiction
A. General
B. Jurisdiction: Monetary Limit
C. Subject-Matter Jurisdiction: Exclusions
D. Subject-Matter Jurisdiction: Kinds of Actions
E. Territorial Jurisdiction
F. Venue of Actions
G. Personal Jurisdiction
H. Indian Jurisdiction

1.1-2 Time Limits for Bringing Actions
A. Computation of Time Limits
B. Time Limits in General
C. Other Time Limits
D. Determination That Time Limit Has Passed

SECTION 1.2
CIVIL PROCEDURE BEFORE TRIAL

1.2-1 Complaint
A. Filing of Complaint and Docketing of Action
B. Other Matters Related to Complaint

1.2-2 Summons
A. Purpose
B. Issuance
C. Service of Process - General
D. Service of Process - Methods of Service
E. Service by Mail
F. Who May Serve
G. Proof of Service of Process; Return

1.2-3 Answer, Counterclaim, Third-Party Complaint
A. General
B. Counterclaim or Setoff
C. Third-Party Complaint
D. Interpleader
E. Filing of Answer
F. Jury Demand by Defendant
G. Clarifying or Amending Complaint or Answer
H. Service of the Answer
I. Defenses
J. Default

1.2-4 Pleadings and Motions
A. Service and Filing of Papers
B. Pleadings
C. Motions
D. Motion for Judgment on the Pleadings
E. Motion for Summary Judgment

1.2-5 Parties
A. Who may Sue; Real Party in Interest
B. Minors and Incapacitated Persons
C. Death or Incapacity; Transfer of Interest
D. Joinder of Parties
E. Pro Se and Attorney Appearance
F. Other Authorized Appearances
G. Attorney Appearance
H. Withdrawal or Attorney Failure to Act

1.2-6 Dismissal
A. Definitions; General
B. Voluntary Dismissal Without Court Order
C. Voluntary Dismissal By Court Order
D. Involuntary Dismissal By Court Order
E. Counterclaims, Cross-Claims
and Third-Party Claims
F. Costs of Previously Dismissed Action
G. Filing; Service

1.2-7 Other Preliminary Matters
A. Discovery
B. Pretrial Conference
C. Notice of Trial
D. Recording of Trial
E. Appointment of Special Master, Arbitrator or Metropolitan Court Judge Pro Tempore

1.2-8 Joint and Separate Trials
A. Reasons
B. Motions; Order

SECTION 1.3
JUDGMENT; ENFORCEMENT; APPEAL

1.3-1 Judgment
A. Definition
B. Entry of Judgment
C. Multiple Claims or Multiple Parties
D. Damages
E. Interest to Date
F. Costs to be Reimbursed (Taxing Costs)
G. Satisfaction of Judgment
H. Relief from Judgment: Clerical Mistake
I. Relief from Judgment: Void Judgment

1.3-2 Default Judgment
A. Definition; Types
B. Entry of Default Judgment
C. Motion to Set Aside Default Judgment
D. Multiple Parties

1.3-3 Reserved

1.3-4 Determination of Judgment Debtor's Assets
A. Judgment Debtor Examination
B. Deposition

1.3-5 Appeal
A. Right of Appeal
B. Notice of Appeal
C. Record on Appeal
D. Stay of Proceedings to Enforce Judgment
E. Review and Remand

SECTION 1.4
EXECUTIONS AND GARNISHMENTS

1.4-1 Executions of Judgments
A. Definitions; General
B. Writ of Execution
C. Exemptions
D. Claim of Exemption for Satisfaction of Separate and Community Debts
E. Transcript of Judgment
F. Levy and Sheriff's Sale
G. Renewal of Execution
H. Examinations and Depositions to Aid Execution

1.4-2 Garnishment
A. Definitions; General
B. Types of Garnishment
C. Garnishment in Advance of Execution
D. Garnishment in Aid of Execution of Judgment
E. Garnishment in Aid of Execution of Judgment Entered in Another Court
F. Default Judgment Against Garnishee
G. Release of Garnishment
H. Miscellaneous
I. Appeals on Rulings on Claims of Exemptions

SECTION 1.5
SPECIAL PROCEEDINGS

1.5-1 Attachment
A. Definition
B. Constitutionality
C. Procedures
D. Attachment Service Response
E. Dissolution of Attachment
F. Exemptions from Attachmen
G. Appeals in Attachment

1.5-2 Replevin
A. Definition
B. Complaint; Limits
C. Judgment; Execution

1.5-3 Forcible Entry or Unlawful Detainer
A. Procedure; Complaint
B. Judgment
C. Execution
D. Appeal

1.5-4 Bankruptcy
A. Overview of the Bankruptcy Process
B. Effect of Bankruptcy on Civil Court Cases
C. Effect of Bankruptcy on Criminal Court Cases
D. Effect of Bankruptcy on Collection of Criminal Fees and Fines

SECTION 1.6
LANDLORD-TENANT PROCEEDINGS

1.6-1 Uniform Owner-Resident Relations Act
A. Important Note
B. Coverage; Application of Act
Chart: Obligations of Owner and Resident Under Owner-Resident Relations Act
C. Obligations of the Owner Under the Act
D. Obligations of the Resident Under the Act
E. Types of Actions Allowed Under the Act
Chart Owner Resident Relations Act
Causes of Action
F. Notice
G. Termination of Rental Agreements and Abatement of Rent
H. Actions for Possession
I. Actions for Damages
J. Petition by Owner for Restitution; Petition by Resident for Relief; Summons
K. Judgment; Writ of Restitution
L. Actions for Counterclaim
M. Appeal in Actions for Possession
N. Deposits
O. Disposition of Property Left on Premises

1.6-2 Mobile Home Act
A. Application of Act
B. Conflicts of Law
C. Obligations of Owner
D. Obligations of Tenant
E. Tenancy Requirements, Rental Agreements
F. Termination of Tenancy
G. Action for Termination/Forcible Entry/Detainer
H. Security Agreements/Deposits
I. Alternative Dispute Resolution
J. Conflicts of Law/Mediation

CRIMINAL CHAPTER

SECTION 2.1
MISDEMEANORS: GENERAL; PROCEDURES BEFORE TRIAL

2.1-1 General
A. Definitions
B. Jurisdiction
C. Venue
D. Time Limitations
E. Determination of Present Competency

2.1-2 Complaint; Summons; Arrest Warrant
A. Filing Complaint and Docketing of Action
B. Criminal Summons
C. Arrest without a Warrant
D. Preliminary Rights
E. Probable Cause Determination
F. Detention Hearing for Children
G. Arrest Warrant

2.1-3 Arraignment
A. Definition; General
B. Juveniles in the Magistrate and
Metropolitan Courts
C. Explanation of Rights
D. Representation by Counsel
E. Entry of Plea

2.1-4 Joint and Separate Trials
A. Joinder of Offenses
B. Joinder of Defendants
C. Consolidation
D. Severance; Separate Trials

2.1-5 Jury Trial
A. Right to Jury Trial
B. Exercise or Waiver of the Right to Jury

2.1-6 Dismissal
A. Definitions; General
B. Voluntary Dismissal by Prosecution
C. Dismissal for Failure to Prosecute
D. Refiled Complaints in Metropolitan Court

2.1-7 Sentencing Options
A. Deferral, Suspension and Probation

2.1-8 Other Preliminary Matters
A. Subpoenas
B. Discovery
C. Pretrial Conference
D. Motions
E. Recording of Trial
F. Service and Filing by Facsimile
G. Service and Filing by Electronic Transmission

SECTION 2.2
FELONIES

2.2-1 General
A. Definition
B. Authority of Court

2.2-2 Complaint and Arrest Warrant
A. Filing Complaint and Docketing of Action
B. Issuance of Arrest Warrant
C. Arrest and Return
D. Arrest Followed by Complaint
E. Amendment of Complaints

2.2-3 First Appearance
A. Definition; General
B. Explanation of Rights
C. Representation by Counsel
D. Determination of Indigency
E. Release; Bail
F. Explanation of Preliminary Examination and Grand Jury Indictment Process
G. Dialogue for First Appearance

2.2-4 Fugitive Actions
A. Fugitive Complaint
B. Arraignment and Commitment Hearing
C. Transfer of Actions

SECTION 2.3
MISDEMEANORS: JUDGMENT; SENTENCE; APPEAL

2.3-1 General
A. Judgment and Sentence; Written Orders
B. Right to Appeal

2.3-2 Sentencing
A. Pre-Sentence Report
B. Sentencing Options
C. Sentencing for Hate Crimes
D. Terms and Conditions of a Deferred or Suspended Sentence: Probation
E. Successful Completion of or Violation and Revocation of Probation

2.3-3 Court Costs and Fines
Payment of Court Costs and Fines

2.3-4 Appeal
A. Right, Notice and Docketing of Appeal
B. Transcript of Proceedings
C. Conditions of Release
D. Disposition; Time Limitations

SECTION 2.4
GAME AND FISH VIOLATIONS

2.4 Game and Fish Violations
A. Jurisdiction; Penalties
B. Arrest; Search Warrants; Citations
C. Prosecution

SECTION 2.5
SEARCH AND SEIZURE

2.5-1 Search Warrants
A. General
B. Sufficiency of Affidavit; Probable Cause

2.5-2 Searches Without Warrants
A. General
B. Searches of Persons and Places
C. Searches of Motor Vehicles

2.5-3 Motion to Suppress
A. General
B. Who May File Motion
C. Grounds for Suppression

2.5-4 Gambling: Search and Seizure
A. Affidavit
B. Search Warrant
C. Execution: Arrest

2.5-5 Inspection Orders
A. Administrative Inspection; Defined
B. Application for Inspectorial Search Order
C. Probable Cause for Issuance of Inspection Order
D. Exceptions to Requirement for Inspection Order

SECTION 2.6
RELEASE; BAIL

2.6-1 General
A. Right to Release; Purpose of Conditions
B. Factors to be Considered Prior to
Setting Conditions of Release
C. Conditions of Release to Assure Orderly Administration of Justice
D. Release Proceedings
E. Release Forms
F. Failure to Comply with Conditions of Release
G. Failure to Appear
H. Forfeiture of bail -- exoneration
I. Misdemeanors: Continuation and
Review of Release

2.6-2 Personal Recognizance and Bonds
A. Personal Recognizance
B. Bonds; General
C. Unsecured Appearance Bond
D. Appearance Bond: Cash Deposit.
E. Appearance Bond: 100 Percent Cash Deposit
F. Bail Bond
G. Bail Bond: Discharge of Surety
H. Bonds: Forfeiture

GENERAL CIVIL & CRIMINAL CHAPTER

SECTION 3.1
SUBPOENAS

3.1 Subpoenas
A. General
B. Issuance; General Rules
C. Service of Subpoena
D. Motion to Quash Subpoena
E. Failure of Appear

SECTION 3.2
JURY SELECTION AND TRIALS

3.2-1 Calling of Prospective Jurors
A. General
B. Request for Qualified Jurors
C. Excusing
D. Jury Costs

3.2-2 Trials General

3.2-3 Calling the Cause
A. Start of Trial
B. Readiness to Proceed with Trial
C. Motion to Quash Jury Array
Appendix
UJI Civil 13-106 7
UJI Criminal 14-101 10

3.2-4 Selection of Jury
A. Calling Jurors
B. Voir Dire: General
C. Challenges for Cause
D. Drawing Names
E. Peremptory Challenges
F. Additional Jurors
G. General
Appendix
   Voir Dire Instructions in Civil Cases
   Voir Dire Instructions in Criminal Cases

3.2-5 Oath to Jurors; Preliminary Instructions
A. Oath
B. Preliminary Instructions
C. Opening statement -- UJI Civil 13-108
Appendix
   Preliminary Instructions in Civil Cases
   Preliminary Instructions in Criminal Cases

3.2-6 Witness Oath; Exclusion Rules; Opening Statements
A. Witness Oath
B. Exclusion Rule
C. Opening Statements

3.2-7 Presentation of Evidence
A. Order of Presentation
B. Witnesses: Testimony
C. Defendant as Witness
D. Introduction of Documentary Evidence and Other Things
E. Objections
F. Confessions

3.2-8 Rules of Evidence
A. Overview
B. Application of the Rules of Evidence
C. Construction of the Rules of Evidence
D. General Principles of Evidence
E. Relevancy
F. Evidence on Specific Topics
G. Witness Testimony
H. Hearsay
I. Privileges

3.2-9 Instructions to Jury
A. General
B. Instructions in Criminal Cases
C. Instructions in Civil Cases
D. Requested Instructions

3.2-10 Closing Arguments
A. Definition
B. Order of Presentation

3.2-11 Jury Deliberation; Verdict; Trial by Court
A. Deliberation
B. Procedure When Jury Reaches Verdict
C. Failure of Jury to Reach Verdict
D. Trial by Court: Nonjury Trials

3.2-12 Motions for Directed Verdict or Dismissal During Trial
A. Motion for Directed Verdict
B. Motions for Dismissal

3.2-13 Motion for New Trial

3.2-14 Preservation and Disposition of Exhibits
A. Preservation
B. Return to Court for Appeal
C. Final Disposition

SECTION 3.3
BENCH WARRANT

3.3 Bench Warrant
A. General
B. Issuance
C. Execution; Return
D. Grounds for Issuing Bench Warrant

SECTION 3.4
CONTEMPT

3.4 Contempt
A. General; Definitions
B. Direct Contempt
C. Indirect Contempt
D. Notice
E. Hearing
F. Punishment; Appeal

SECTION 3.5
EXCUSAL, RECUSAL, INABILITY TO PROCEED

3.5-1 Excusal, Recusal, Inability to Proceed
A. Excusal
B. Recusal
C. Inability of a Judge to Proceed
D. Procedure for Replacing a Judge Upon Excusal or Recusal - Magistrate Court
E. Procedure for Replacing a Judge Upon Excusal or Recusal - Metropolitan Court

3.5-2 Recording of Proceedings
A. Record
B. Broadcasting and Photographs

SECTION 3.6
EFFECTIVE DATES OF STATUTES AND COURT RULES

3.6 Effective Dates of Statute and Court Rules
A. General
B. Exceptions

3.1 Subpoenas

A. General (Magis. Ct. R. 2-502 and 6-606; Metro. Ct. R. 3-502 and 7-606)
The procedures for subpoenas are basically the same in civil and criminal cases. Civil Form 4-503 is used in civil actions and Form 9-503 is used in criminal actions.

B. Issuance; General Rules

1. For subpoenas to compel the attendance of a witness:

   a. A person does not have to be subpoenaed in order to appear; a witness may appear voluntarily at the request of a party without a subpoena.

   b. The same subpoena may not be used for more than one witness.

   c. A subpoena may be issued for a person residing outside the court district, although the court is without jurisdiction to enforce the process.

   d. Subpoenas issued at the request of a judgment creditor in post-judgment proceedings may be served in any county of this State where the person to be examined may be located, and process may be enforced by the court. Magis. Ct. R. 2-803(D); Metro. Ct. R. 3-803(D).

   e. The party requesting the subpoena fills in the information on the subpoena form; the judge or clerk signs and dates the subpoena. Magis. Ct. R. 6-606(A)(3); Metro. Ct. R. 7-606(A)(3); Civil Form 4-503 (Subpoena); Criminal Forms 9-503 (Subpoena) and 9-504 (Subpoena Duces Tecum).

   f. Any attorney authorized to practice in New Mexico may issue a subpoena for a client on behalf of the Court in which the case is pending. Magis. Ct. R. 2-502(A)(3) and 6-606(A)(3); Metro. Ct. R. 3-502(A)(3) and 7-606(A)(3).

2. For subpoenas to compel the production of documentary evidence:

   a. A person does not have to be subpoenaed in order to produce tangible evidence; the witness may voluntarily produce it at the request of a party without a subpoena.

   b. The papers or other documents that need to be produced must be specified in the subpoena. Magis. Ct. R. 6-606(A)(1)(c); Metro. Ct. R. 7-606(A)(a)(c); Civil Form 4-501(Motion for Production); Criminal Form 9-409 (Motion for Production).

   c. The usual procedure for production of documentary evidence is for the requesting party to file a motion for production from the opposing party. Civil Forms 4-501 (Motion for Production) and 4-502 (Order for Production); Criminal Forms 9-409 (Motion for Production) and 9-410 (Order for Production).

   d. In civil actions, either party may subpoena the opposing party for production of documentary evidence. Magis. Ct. R. 2-501; Metro. Ct. R. 3-501.

   e. In criminal actions, the defendant may subpoena recorded statements and the prosecution must disclose any records, papers, documents, or other tangible evidence that is material to the preparation of the defense, is intended for use by the prosecution at trial, or were obtained from or belong to the defendant. . Magis. Ct. R. 6-504(A); Metro. Ct. R. 7-504(A).

   f. In criminal cases, the defendant must disclose any records, papers, documents, or other tangible evidence that he or she intends to introduce at trial. Metro. Ct. R. 7-504(B).

   g. The person subpoenaed must produce the information or materials before or at the trial or preliminary examination, as specified in the subpoena.

C. Service of Subpoena

1. The subpoena (original and one copy) is normally given to the requesting party who is responsible for having the subpoena served.
2. The subpoena may be served personally by:

   a. the sheriff or a deputy (the judge may give the subpoena directly to the sheriff for service), or

   b. any person at least eighteen years of age and not a party to the action. Magis. Ct. R. 2-502(B), 6-606(D); Metro. Ct. R. 3-502(B), 7-606(D).

3. Service of the subpoena may be made by delivering a copy of the subpoena to the person named within it, and:

   a. If the witness is to be paid from state funds used for payment of state witnesses or witnesses in indigency cases, by processing for payment the fee and mileage prescribed by the AOC. Magis. Ct. R. 6-606(B)(1)(a); Metro. Ct. R. 7-606(B)(1)(a). Or,

   b. For all other witnesses, by tendering to the witness the fee for per diem expenses and mileage as provided in Section 10-8-4.

4. Return of service is made on the original of the subpoena, which is then filed with the court. Magis. Ct. R. 6-606(B)(2); Metro. Ct. R. 7-606(B)(2).
5. The fees for attendance and mileage and the fee for service of the summons are paid by the party requesting the subpoena; these are taxable as costs if the requesting party prevails in a civil lawsuit. Section 38-6-4; Magis. Ct. R. 2-701(E); Metro. Ct. R. 3-701(E); §1.3-1(F) of this Benchbook regarding court costs in civil cases.
6. If the subpoena is issued at the request of the state or an officer or agent of the state, fees for mileage and attendance are not offered or paid to the witness at the time that the subpoena is tendered. Magis. Ct. R. 6-606(B)(1)(b); Metro. Ct. R. 7-606(B)(1)(b).

D. Motion to Quash Subpoena (Magis. Ct. R. 2-502(C)(3) and 6-606(C)(3); Metro. Ct. R. 3-502(C)(3) and 7-606(C)(3))

1. The person subpoenaed may file with the court a motion to quash the subpoena. The motion must be made at or before the time specified in the subpoena for compliance.
2. The judge shall quash the subpoena if:

   a. it subjects a person to an undue burden, for example, if all the records of a business are subpoenaed instead of only those records relevant to the case; or

   b. it fails to allow reasonable time for compliance; or

   c. it requires disclosure of privileged or other protected matter and no exception or waiver applies. Magis. Ct. R. 2-502(C)(3)(g); Metro. Ct. R. 3-502(C)(3)(g). was improperly issued, for example, if the subpoena does not state the time of appearance or the specified documents to be produced.

3. The judge may quash or modify a subpoena if the subpoena requires:

   a. disclosure of a trade secret or other confidential research, development or commercial information;

   b. disclosure of an unretained expert’s opinion or information not describing specific events or occurrences in dispute and resulting from the expert’s study not made at the request of a party; or

   c. a person not a party (or officer of a party) to incur substantial expense or travel more than 100 miles to attend trial. Magis. Ct. R. 2-502(C)(3)(b); Metro. Ct. R. 3-502(C)(3)(b).

4. The judge may require the person who requested the subpoena to pay reasonable costs of producing subpoenaed books, documents, or other things. Magis. Ct. R. 2-502(B) and 6-606(B); Metro. Ct. R. 3-502(B) and 7-606(B).
5. A hearing, with notice to the person subpoenaed and the party who requested the subpoena, is normally held on a motion to quash a subpoena.
6. A copy of any written motion to quash a subpoena must be served on the requesting party in the manner of service of pleadings and other papers. Magis. Ct. Rules 2-203 and 6-209; Metro. Ct. Rules 3-203 and 7-209.
7. Unless an order on a motion to quash a subpoena is issued in the presence of the requesting party and the subpoenaed person, a written order must be issued and served as provided for service of pleadings and other papers.

E. Failure to Appear (Magis. Ct. R. 6-207; Metro. Ct. R. 7-207)

1. If a subpoenaed witness fails to appear as required in the subpoena, the judge may:

   a. grant a continuance of the proceeding; and or

   b. issue a bench warrant to arrest and bring the person before the court. See §3.3 of this Benchbook regarding bench warrants.

2. The party who requested the witness may agree to have the proceeding take place without the subpoenaed witness.
3. Normally, the judge consults with the party who requested the subpoena before issuing a bench warrant.
4. Failure to appear without an adequate excuse may be deemed contempt of court. Magis. Ct. R. 2-502(E) and 6-606(E); Metro. Ct. Rules 3-502(E) and 7-606(E).