410 P.3d 201
N.M.2018Background
- New Mexico amended Article II, §13 (Nov. 2016) to permit pretrial detention for felony defendants if the prosecutor proves by clear and convincing evidence that no release conditions would reasonably protect others or the community. The amendment also forbids detaining otherwise-eligible defendants solely for inability to post bond.
- Two detention motions (State v. Salas and State v. Harper) resulted in district court rulings denying detention because the judge would not rely on criminal complaints, proffers, video, and document proffers absent live witnesses for authentication; instead the court set high cash bonds and close supervision conditions.
- The Second Judicial District Attorney sought a writ of superintending control from the New Mexico Supreme Court asking for guidance on what evidence is required at detention hearings and asking the lower court to rehear the motions under that guidance.
- The Supreme Court considered federal and state precedents and the new July 2017 Rule 5-409, which (a) provides expedited detention procedures, (b) preserves rights to counsel, to present evidence or proffer, and to cross-examine live witnesses who appear, and (c) states that formal rules of evidence do not apply at detention hearings.
- The Court granted the writ, remanded the two cases for new hearings, and held that detention hearings are not bound by trial rules of evidence; courts may consider reliable proffers and documents, but retain discretion to require live testimony when reliability/authenticity is in doubt.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Judge/Defendants) | Held |
|---|---|---|---|
| Whether the U.S. or N.M. Constitutions require live witness testimony at pretrial detention hearings | State: No; prosecution may rely on proffers, documents, and nontestimonial evidence; live witnesses not always required | Judge/Defs: Due process and confrontation may require live testimony for meaningful challenge | Held: Neither U.S. nor N.M. Constitutions categorically require live witnesses; courts may consider reliable proffers and documents but may require live testimony when necessary for reliability or fairness |
| Whether formal rules of evidence apply at detention hearings | State: Rules of evidence do not apply; focus on reliability and probative value | Judge/Defs: Strict evidentiary/formal authentication may be required for due process | Held: Formal evidence rules do not apply (Rule 5-409(F)(5)); court should assess indicia of reliability and probative value rather than technical form |
| Standard and quantum of proof for detention | State: Clear and convincing evidence that no conditions will reasonably protect safety | Defs: State must meet high proof and confrontation standards | Held: Constitutional standard is clear and convincing; court must make individualized, reasoned findings based on reliable information presented in any admissible form |
| Use of high money bonds as substitute for detention | State: Court can set conditions and bonds consistent with rules | Judge/Defs: High bond acceptable to ensure appearance/protect community | Held: Setting unaffordable secured money bond to achieve detention is unconstitutional; if a defendant is detainable for dangerousness the proper remedy is detention order, not prohibitive bond (Rule 5-401(E)(1)(c)) |
Key Cases Cited
- United States v. Salerno, 481 U.S. 739 (U.S. 1987) (upholding federal pretrial-detention authority and procedural safeguards under the Due Process Clause)
- United States v. Edwards, 430 A.2d 1321 (D.C. 1981) (permitting proffers and hearsay at detention hearings and recognizing judge's discretion to require live testimony)
- State v. Brown, 338 P.3d 1276 (N.M. 2014) (tracing bail history and urging individualized, evidence-based pretrial-release decisions)
- Mendonza v. Commonwealth, 673 N.E.2d 22 (Mass. 1996) (upholding detention statute allowing hearsay/proffers and due process protections)
- United States v. Gaviria, 828 F.2d 667 (11th Cir. 1987) (government may proceed at detention hearing by proffer; court ensures reliability)