• Jessica Martinez

Updated: Oct 18, 2021


A Three Part Series

By Jessica Martinez, Chief Deputy District Attorney

Often you see news reports of people arrested for various crimes. Less often are there reports about what happens after the arrest.

The United States Constitution and the New Mexico constitution both guarantee people the right to be free from self-incrimination, the right to a public and speedy trial by an impartial jury, and the right to be confronted with witnesses against him/her, the right to present witnesses in his/her favor, and the right to an attorney during all proceedings during the criminal process. U.S. Const. Amend. V & VI, N.M Const. Art. II, sec.12, 14, & 15.

What does this mean? It means the State, through the District Attorney has the burden of proving that a person has committed the crime beyond a reasonable doubt while protecting both the rights of victim and the rights of the defendant.



The criminal justice process begins when a crime is reported to local law enforcement. Once a crime is reported, the local law enforcement must investigate by collecting all evidence related to the crime. The collection of evidence might include taking recorded or written statements from witnesses, photographing the crime scene, collecting physical evidence such as forensic evidence, clothing, weapons, or anything that may be helpful in determining whether a crime did in fact occur.

After collecting the necessary evidence, and if there is probable cause, an officer may arrest the suspect(s) believed to have committed the crime. Probable Cause means the officer has more than just a suspicion or possibility that a crime was committed, and that the accused committed it. If an arrest is made the officer will also file criminal charges against the suspect by filing a document called a criminal complaint with the local magistrate or metropolitan court.

Once a complaint is filed and an arrest is made, the court must hold a hearing called a First Appearance within 48 hours of the arrest. During the hearing the Defendant (the accused) is informed of the charges against him/her, and it is determined whether release from custody is appropriate based on the nature of the charges and the defendant’s criminal history. During this stage of the process a defense attorney is appointed to represent the defendant at no cost to the defendant if the defendant cannot afford to hire an attorney.

After a First Appearance, the court informs the newly appointed defense attorney and the local District Attorney of the charges brought against the defendant in addition to setting a Notice of Hearing for a probable cause hearing, also known as a Preliminary Hearing. If the defendant is to remain in custody this probable cause hearing must be held within 10 business days from the first appearance. If the defendant has been released from custody, the probable cause hearing must be held within 60 days of the first appearance.


At this stage the District Attorney reviews the case to determine if charges are appropriate and if so charges will be filed. When reviewing a case for possible charges, the district attorney must follow the applicable ethical rules allowing a prosecutor to file charges only when there is sufficient probable cause to charge the defendant with a crime and the district attorney has a reasonable belief that the evidence is sufficient to produce a successful outcome at trial. If the evidence is not sufficient then the prosecutor must decline to prosecute the case.

If the evidence is sufficient, the District Attorney decides if the case should be presented to a grand jury for a determination of probable cause or proceed with a preliminary hearing in which case a judge will decide if probable cause exists. Each option has its own benefits.


A Preliminary Hearing is like a trial. The State calls witnesses to testify about the incident and those witnesses are subject to cross examination by the defense attorney. The defendant may also present his/her own evidence if s/he chooses. At the conclusion of the hearing the judge determines if there is enough evidence to move forward. If the judge determines that sufficient probable exists, then the case is bound over to the District Court for trial. The District Attorney then files a “Criminal Information” listing all the charges for which the Magistrate judge has found probable cause, in the district court.

A preliminary hearing is ideal for cases with few witnesses and or less complex charges. It allows the state to better assess the strength of the case since their evidence will be subject to cross examination.


A Grand Jury is a secret proceeding in which 12 impartial members of the community decide if probable cause exists. During the Grand Jury hearing, the district attorney acts as an aid to the grand jury. S/he calls witnesses to testify before the grand jury and proposes charges s/he thinks are appropriate. However, the grand jury also has the power to call additional witnesses if they deem necessary and they may choose which crimes to charge. After the grand jury hears all the testimony, the district attorney and the court reporter leave the room and only the members of the grand jury remain while they deliberate. If the grand jury finds sufficient probable cause exists, they issue what is called a True Bill with the grand jury indictment listing all the charges for which they have found sufficient probable cause. The district attorney then files that Indictment with the district court.

A grand jury is ideal for complex cases or cases involving vulnerable witnesses. During grand jury proceedings, the defendant has the right to testify at the proceeding, but s/he is only allowed in the grand jury room while s/he is testifying. The grand jury proceeding is a more efficient way to present complex evidence since it is not subject to cross examination by the defense. It is also easier for vulnerable victims to testify as they don’t have to testify in front of the defendant and are not subjected to cross examination.


At this stage, if the charges involve a violent crime against an individual, known as a Victim Enumerated Crime, the Victim’s constitutional rights apply. As a victim of an enumerated crime the victim or the next of kin has a right to:

(1) the right to be treated with fairness and respect for the victim's dignity and privacy throughout the criminal justice process.

(2) the right to timely disposition of the case.

(3) the right to be reasonably protected from the accused throughout the criminal justice process.

(4) the right to notification of court proceedings.

(5) the right to attend all public court proceedings the accused has the right to attend.

(6) the right to confer with the prosecution.

(7) the right to make a statement to the court at sentencing and at any post-sentencing hearings for the accused.

(8) the right to restitution from the person convicted of the criminal conduct that caused the victim's loss or injury.

(9) the right to information about the conviction, sentencing, imprisonment, escape or release of the accused.

(10) the right to have the prosecuting attorney notify the victim's employer, if requested by the victim, of the necessity of the victim's cooperation and testimony in a court proceeding that may necessitate the absence of the victim from work for good cause; and

(11) the right to promptly receive any property belonging to the victim that is being held for evidentiary purposes by a law enforcement agency or the prosecuting attorney, unless there are compelling evidentiary reasons for retention of the victim's property.

N.M. Const. art. II, § 24



Arraignment: Typically, the first court proceeding in a criminal case after formal charges have been filed.

Case In Chief: Refers to the phase of a trial where the party with the burden of proof in the case presents evidence.

Criminal Complaint: An initial charging document that describes the criminal charges against a person and the factual basis for those charges, usually filed by law enforcement.

Criminal Information: A formal charging document that describes the criminal charges against a person and the factual basis for those charges filed after a preliminary hearing where probable cause has been found.

Defendant: An individual, company or institution sued or accused in a court of law.

Directed Verdict: A ruling entered by a trial judge after determining there is no legally sufficient evidentiary basis for a jury to reach a different conclusion.

Discovery: A pre-trial procedure in which each party can obtain evidence from the other party or parties.

District Attorney: A District Attorney, State’s Attorney or Prosecuting Attorney is the chief prosecutor and/or the chief law enforcement officer representing a U.S. state in a local government area, typically a county or district encompassing several counties.

Grand Jury: A Grand Jury is comprised of 12 jurors and several alternates. A Grand Jury does not determine guilt or innocence but whether there is probable cause to believe that a crime was committed.

Impanel: To form a jury by summoning or selecting the members – to enroll in or on a panel.

Indictment: A formal charge or accusation of a serious crime issued by a grand jury.

Miranda Rights: The wording used when a person is read the Miranda Warning, also known as being Mirandized. (NOTE: LINK TO THE FULL WORDING)

Motion: A procedural device to bring a limited contested issue before a court for a decision. A request to the judge to decide a certain issue about the case.

Outside the Scope: Outside of the relevant range for example re-direct is not allowed to go beyond the scope of cross examination.

Preliminary Hearing: The hearing in which the judge decides whether probable cause exists to require a defendant to stand trial for a charged crime.

Probable Cause: The standard by which police authorities have reason to obtain a warrant for the arrest of a suspected criminal or issuing of a search warrant. It is also the standard by which grand juries’ issue criminal indictments.

PTI (Pre-Trial Interview): Interviews conducted before the trial begins with potential witnesses.

Reasonable Doubt: The traditional standard of proof that must be exceeded to secure a guilty verdict in a criminal case in a court of law.

True Bill: The name for the decision by a grand jury that evidence presented to it, contained in the prosecutor’s indictment, justifies charging the defendant with a crime.

Uniform Jury Instructions: Instructions for the jury deliberation in the language of the Uniform Jury Instructions regarding the law applicable to the facts in the case at hand.

Victim Enumerated Crime: A crime in which the victim has suffered physical or emotional harm, property damage or economic loss because of the crime, as defined by the NM Constitution.

Voir Dire: The process by which attorneys select or reject certain jurors to hear a case. Jury Selection.


Andoni Garrote, J.D.

Deputy District Attorney

Effective June 29, 2021, marijuana has been legalized in the State of New Mexico, but what exactly does that mean? This is a summary of the legislation.

On April 12, 2021, Governor Michelle Lujan Grisham signed into law New Mexico’s H.B. 2. the Cannabis Regulation Act. This Act regulates and legalizes the possession and use of cannabis for adults twenty-one years of age and older. Although marijuana has been legalized, this does not mean that anything goes; some activities are still regulated under the new law. Currently, people cannot legally smoke cannabis in public areas except in “cannabis consumption areas”.


A person twenty-one years of age or older who possesses between two and eight ounces of cannabis (For example, 2oz equals 56 grams or 56 pre-rolled joints), more than sixteen grams (2 oz.) of cannabis extract, or more than eight hundred milligrams of edible cannabis (think 80 gummies) can be charged with a misdemeanor. Furthermore, anyone in possession of over 8 oz. of cannabis, sixty-four grams of cannabis extract, or three thousand two hundred milligrams of edible cannabis can be charged with a fourth-degree felony.


Smoking cannabis in public areas is not allowed.

Although possessing and using marijuana is legal, the amount of marijuana, its extract and edibles an individual can have on their person in public, at one time, is still restricted.

What does this mean? It means that at home you can have more than two ounces of cannabis, its extracts and edibles, if they are not visible from a public place.

At home, you are allowed to grow six plants for personal use (12 per household total) without a license. Growing more than the allowed number in your home can lead to a penalty assessment. Additionally, having more than twelve cannabis plants is a fourth -degree felony. In short, individuals can grow marijuana in their home gardens if they do not grow more than the allowed number of plants at any one time.

The Act also establishes the regulation of the manufacturing of cannabis extract without a license. It is unlawful for a person to manufacture cannabis extract without a license unless the person produces and manufactures cannabis extract from homegrown cannabis using nonvolatile solvents, alcohol or carbon, or no solvents for personal use only. To do otherwise is a violation which can result in the charge of a fourth-degree felony.


Under the new law, a person eighteen years of age or older who intentionally sells cannabis products without a license can be charged with a misdemeanor. However, if an individual attempts to sell cannabis products from an area open to the public under the false pretense that they are operating as a licensed dispensary that would constitute a violation of the law resulting in the possibility of a fourth-degree felony charge. In other words, do not sell cannabis products if you are not in fact operating as a licensed dispenser.

Although cannabis is now legal, the actual commercial sale of marijuana is not yet in effect other than to those who possess medical cannabis cards. The Act states that the wide scale commercial sale of cannabis will take place no later than April 1, 2022. Something to point out is that the New Mexico legislature in addition to passing a law legalizing cannabis, also passed bill, S.B No.2 which deals with the expungement of criminal convictions and arrest records for those that had priors for certain cannabis offenses.


How will the Cannabis Regulation Act affect the way the 13th Judicial District Attorney’s Office prosecutes cases? The truth is that this office has always done its best to be mindful when it comes to cannabis charges and the impact criminalization has had on certain communities, especially people of color. Prosecution in this District will not look much different with the implementation of this new law because while the law is credited as legalizing cannabis, there are still some actions that are considered crimes which this office will continue to take seriously. For example, drug trafficking is a serious offense that affects the community. Frequently we see acts of violence stemming from the involvement in drugs and drug trafficking. However, despite this, our Office also recognizes and supports the need for a change in regulation when it comes to cannabis and the historically disproportionate ways in which racial and class biases were played out with the former criminalization and regulation of cannabis.

In this office, we have long recognized the impact that drugs can have on our community and renew our dedication to addressing the issues that drugs bring to it. We also renew our dedication to being mindful in the prosecution of crimes and recognizing the benefits of treatment and rehabilitation in hopes of helping someone turn their life around and become a contributing member of society. Ultimately, we recognize the need for this Act and dedicate ourselves to upholding the laws of our state just as we have always done.


On this day six years ago - which was Memorial Day, Officer Gregg "Nigel" Benner, an Air Force veteran, was killed in the line of duty. We are re-posting this Blog in his memory.


Memorial Day is a day set aside to remember and honor those who have made the ultimate sacrifice in the service of our country. I want to dedicate this blog to the memory of a local hero who was executed in the streets of Rio Rancho on Memorial Day, May 25, 2015. Officer Gregg “Nigel” Benner was a veteran. He served his country honorably as a member of the United States Air Force, including several tours overseas. After being discharged, he continued his life of public service by joining the Rio Rancho Police Department.

Officer Benner was a beloved family man and proud member of his community. His selfless service to others was remarkable to all those who knew him. It is ironic that on Memorial Day, his family, friends, and loved ones remember and honor him — not for being killed by a foreign enemy while serving and protecting our country—they will remember him on this day as being gunned down by a career criminal, while serving and protecting our community.

The person who murdered Officer Benner (I will not publish his name to give him any more notoriety) was a career criminal when he entered Rio Rancho on that fateful day to continue a crime spree of armed robberies that had begun in Albuquerque and continued in Albuquerque after he left Officer Benner to bleed to death in the street. The tragedy of Officer Benner’s murder is amplified by the fact that his killer should never have been on the streets in the first place. He had already been incarcerated in the New Mexico State Penitentiary twice. He was on probation. Officer Benner’s murder sparked an outcry around the state and many called for stricter laws and sentences for repeat violent offenders. While some progress has been made in this regard, we still see far too many repeat violent offenders who migrate from larger communities like Albuquerque to the smaller communities in Cibola, Sandoval and Valencia Counties to commit atrocities against our citizens. Armed with the statistics of the alarming increase in violent crimes in our district, I will fight in the legislature to get a bigger slice of the resource pie, by dispelling the myth that our “rural” district doesn’t need as many crime fighting resources as the bigger metropolitan areas like Albuquerque.

While I am an advocate for diversion programs to assist first time non-violent offenders who wish to leave the criminal path and return to productive law abiding citizens, I have no sympathy for those who have been given multiple opportunities to correct their life styles and refuse to do so, ultimately harming and even destroying innocent lives. During the course of leading the prosecution team for Officer Benner’s killer, I became acutely aware of how profoundly the murder of a police officer affects the entire community. I have implemented a no-plea bargain policy for crimes of violence committed against peace officers during the course of their duties. My policy is to treat these crimes as if they were enumerated crimes, giving the harmed officers all of the rights afforded to other victims of crime in New Mexico. This means that none of these cases are dismissed or pled to lesser charges without consulting with the affected officer.

Additionally, as part of my monthly meeting with local law enforcement agency chiefs and supervisors, we developed a Chronic Offender Task Force wherein the police officers, probation and parole officers, and prosecutors collaborate to identify the worst of the worst in Sandoval County and coordinate strategies to investigate, apprehend, and prosecute these individuals in a concentrated effort to get them off of our streets for good. This will be implemented in all three counties once I am elected.

As your District Attorney, I will always stand behind the men and women who risk their lives every day for our safety. That is not to say I will rubber stamp everything they do. I will demand high quality and professional policing and investigation to ensure the best possible prosecution outcome. But, make no mistake. If anyone intentionally harms a police officer in the line of duty, I will not hesitate to prosecute to the full extent of the law. Imagine, if someone is willing to shoot and kill an armed police officer in broad daylight, they will not hesitate to kill any one of us or our family. Repeat violent offenders will not find a safe haven in Cibola, Sandoval, or Valencia County under my administration.

Rest In Peace with the Angels Nigel!

“Greater love hath no man than this, that a man lay down his life for his friends” [John 15:13]