Once a criminal investigation has been concluded, and a felony case has been referred to the prosecutor, the accused will receive a letter indicating that he or she is the target of a grand jury investigation. The letter is called a target letter. The target letter will indicate the date and time of the grand jury hearing.
In the past, the grand jury has been a mere procedural formality prior to the filing of felony charges. It was said that the grand jury would indict a ham sandwich. The prosecutor was able to pick and choose evidence as it saw fit often neglecting to present clearly and readily available exculpatory evidence. There were few if any procedural or evidentiary protections to insure a balanced presentation of the evidence. In addition, the defense had few opportunities to present a defense at this stage. Because of the low standard for indictment of the lack of any procedural or evidentiary protections for the accused, and the virtual certainty of an indictment, the grand jury hearing often went uncontested. Unfortunately, many innocent people were indicted on pretty flimsy evidence. Though these cases might later be dismissed for lack of evidence, the damage to the accused was already done once the charges were filed, and their lives and their reputations were turned upside down.
The Supreme Court of New Mexico addressed the injustice of the grand jury procedure in Jones v. Murdoch (NM 2009). The Court recognized the injustice of the grand jury procedure very succinctly when it stated:
"To allow the prosecutor's screening function to proceed unchecked pre-indictment invites post-indictment inefficiencies into the system. And to assume that all damage flowing from an unjustified indictment can be cured post-indictment is to ignore the lasting injury that even an unsuccessful indictment can inflict."
To correct the procedural imbalance of the grand jury and the enormous harm of a baseless indictment, the Court expanded the accused target's right to have exculpatory evidence presented to the grand jury. To be admissible, the evidence must simply be "lawful, competent, and relevant" and must tend to prove the indictment is unjustified.
There are numerous requirements on the criminal defense attorney to take advantage of the new grand jury defense opportunities now available as a result of Jones v. Murdoch. The challenges at grand jury are still significant. In fact, despite the new protections of Jones v. Murdoch, innocent people will continue to be indicted along with the ham sandwiches. However, there will be many more victories at this stage than in the past. And with each success, it is hoped prosecutors throughout New Mexico will be less inclined to abusive grand jury practices and clearly baseless grand jury proceedings that have been the rule in the past.