N.M. Const. art. II, § 12
The right of trial by jury as it has heretofore existed shall be secured to all and remain inviolate. In all cases triable in courts inferior to the district court the jury may consist of six. The legislature may provide that verdicts in civil cases may be rendered by less than a unanimous vote of the jury.
Cross references. — For right to impartial jury, see N.M. Const., art. II, § 14.
For provisions relating to grand jury, see N.M. Const., art. II, § 14.
For number of jurors in cases in probate court, see N.M. Const., art. VI, § 23.
See Kearny Bill of Rights, cl. 5, on NMOneSource.com.
For right to jury in metropolitan courts, see 34-8A-5 NMSA 1978.
For statutory provisions relating to drawing and empaneling juries, see 38-5-1 NMSA 1978 et seq.
For right to jury in probate court, see 45-1-306 NMSA 1978.
For jury trial in civil cases in district court, see Rule 1-038 NMRA.
For jury trial in criminal cases in district court, see Rule 5-605 NMRA.
For jury trial in civil cases in magistrate court, see Rule 2-602 NMRA.
For jury trial in criminal cases in magistrate court, see Rule 6-602 NMRA.
For jury trial in civil cases in metropolitan court, see Rule 3-602 NMRA.
For jury trial in criminal cases in metropolitan court, see Rule 7-602 NMRA.
Comparable provisions. — Idaho Const., art. I, § 7.
Iowa Const., art. I, § 9.
Montana Const., art. II, § 26.
Utah Const., art. I, § 10.
Wyoming Const., art. I, § 9.
The constitutional right to trial by jury applies in cases brought under the Medical Malpractice Act. — Because causes of action brought under the Medical Malpractice Act (MMA), NMSA 1978, §§ 41-5-1 to -29, can be more generally described as causes of action in common-law medical negligence, and claims of common-law medical negligence were triable to a jury at the time the New Mexico Constitution was adopted and took effect, the constitutional right to trial by jury attaches to causes of action brought under the MMA. Siebert v. Okun, 2021-NMSC-016, overruling in part Salopek v. Friedman, 2013-NMCA-087, 308 P.3d 139.
"Inviolate" construed. — An inviolate right is one that must remain intact and unbroken, but an inviolate right is not beyond the reach of regulation, so long as that regulation does not substantially impair the core essence of the right. Siebert v. Okun, 2021-NMSC-016, overruling in part Salopek v. Friedman, 2013-NMCA-087, 308 P.3d 139.
The Medical Malpractice Act’s nonmedical, nonpunitive damages cap does not invade the province of the jury. — Where plaintiff successfully sued defendants for medical malpractice under the Medical Malpractice Act (MMA), NMSA 1978, §§ 41-5-1 to -29, and where, following the return of the jury’s verdict, defendants moved to reduce the jury award of $2,600,000 to conform with the $600,000 cap on all nonmedical and nonpunitive damages in MMA actions, and where the district court denied defendants’ motion, concluding that the MMA nonmedical, nonpunitive damages cap infringed the state constitutional right to a trial by jury, the district court erred in denying defendants’ motion, because the MMA nonmedical, nonpunitive damages cap merely gives legal consequence to the jury’s finding on damages and does not violate a plaintiff’s right to a jury trial under NM Const., Art. II, Sec. 12. Siebert v. Okun, 2021-NMSC-016, overruling in part Salopek v. Friedman, 2013-NMCA-087, 308 P.3d 139.
Cap on medical malpractice damages does not violate the right to trial by jury. — The cap on medical malpractice damages in 41-5-6 NMSA 1978 does not violate the right to trial by jury under Article II, Section 12 of the constitution of New Mexico. Salopek v. Friedman, 2013-NMCA-087.
Right to jury trial not denied. — Where defendant was tried without a jury in municipal court for DWI, third offense in violation of a municipal ordinance which provided that the maximum penalty for the charge was one hundred seventy-nine days imprisonment, the ordinance did not unconstitutionally limit defendant’s right to a jury. City of Rio Rancho v. Mazzei, 2010-NMCA-054, 148 N.M. 553, 239 P.3d 149, cert. denied, 2010-NMCERT-005, 148 N.M. 575, 240 P.3d 1049.
Right to a jury trial under the federal constitution not implicated. — If a jury is instructed on the essential elements of the crime with which the defendant is charged, and the instruction requires the jury to find those elements beyond a reasonable doubt, the defendant has been accorded the procedure required to protect the presumption of innocence, so where defendant was charged with involuntary manslaughter, and where the jury instruction included all of the elements of the charged crime, but also included an additional element, the additional element did not become an essential element of the crime, and defendant’s right to a jury trial under the federal constitution was not implicated. State v. Carpenter, 2016-NMCA-058.
A defendant has a right to a jury determination of the facts that would support enhancement of his sentence. State v. King, 2007-NMCA-130, 142 N.M. 699, 168 P.3d 1123, cert. quashed, 2007-NMCERT-011, 143 N.M. 157, 173 P.3d 764.
Entry of summary judgment does not violate the right to a jury trial. — Neither the Seventh Amendment to the United States Constitution nor Article II, Section 12 of the Constitution of New Mexico creates an absolute right to a jury trial in all civil cases, but instead they preserve the existing common law right to have the facts of a case tried by a jury, and rules governing and permitting entry of summary judgment do not violate the right to have a jury decide a case. The summary judgment process differentiates issues, and sometimes cases, that may be resolved as matters of law from those to which a constitutional right to a jury exists. N.M. Law Group v. Byers, 2018-NMCA-023, cert. denied.
Where plaintiff filed a motion for summary judgment in a dispute over legal fees, and where defendant responded to the motion, but did not dispute that he agreed to pay plaintiff for legal services, that plaintiff provided such services, including representation in two criminal cases, and that defendant had not fully paid plaintiff’s bill for those services, the trial court did not err in granting plaintiff’s motion for summary judgment or in denying defendant’s motion to vacate the adverse summary judgment, because the district court was not called upon to decide any questions of fact in granting the motion for summary judgment, and therefore no jury trial was necessary and no right to such trial was violated. N.M. Law Group v. Byers, 2018-NMCA-023, cert. denied.
Presence of interpreter during jury deliberations. — Once an interpreter for non-English speaking jurors has been given the mandatory interpreters’ oath to interpret testimony correctly, the interpreter is authorized to be in the jury room during jury deliberations to assist non-English speaking jurors and no presumption of prejudice arises. State v. Pacheco, 2007-NMSC-009, 141 N.M. 340, 155 P.3d 745, rev'g 2006-NMCA-002, 138 N.M. 737, 126 P.3d 553.
Where interpreter was present while jury deliberated defendant's guilt or innocence without the benefit of an oath or instruction to ensure that the interpreter neither participate in or interfere with the jury's deliberations, there is a presumption of prejudice. State v. Pacheco, 2006-NMCA-002, 138 N.M. 737, 126 P.3d 553, rev'd, 2007-NMSC-009, 141 N.M. 340, 155 P.3d 745.
Interpreter's oath insufficient. — Where the trial court only required an interpreter to take an oath to faithfully and impartially translate the witness's testimony, this oath was insufficient to safeguard against interference, or the appearance of interference, with the jury's deliberations. State v. Pacheco, 2006-NMCA-002, 138 N.M. 737, 126 P.3d 553, rev'd, 2007-NMSC-009, 141 N.M. 340, 155 P.3d 745.
Juror's inability to understand English. — It is a violation of this section and art. II, § 14, to allow one unqualified juror to serve in a criminal cause for the reason that any verdict rendered in such a situation would be less than unanimous; and a juror who does not possess a working knowledge of English is unable to serve, in the absence of an interpreter, because he cannot possibly understand the issues or evaluate the evidence to arrive at an independent judgment as to the guilt or innocence of the accused. When the court learns in the midst of the jury's deliberations that one juror does not understand English very well, it should conduct a summary hearing to determine for itself the ability of the juror in question to understand English. State v. Gallegos, 1975-NMCA-125, 88 N.M. 487, 542 P.2d 832, cert. denied, 89 N.M. 6, 546 P.2d 71.
A case was remanded for the trial court to certify the record as to the details of any communications between the court and jury as to a jury member not understanding English, and to conduct an evidentiary hearing into whether the state could overcome a presumption of prejudice from the defendant's absence during these communications, and to determine whether the defendant was accorded his right to a jury of 12. Irrespective of the proper preservation of error by the defendant, it was the duty of the trial court to make a record and rule upon any possible miscarriage of justice that could have constituted fundamental error. State v. Escamilla, 1988-NMSC-066, 107 N.M. 510, 760 P.2d 1276.
This section and art. II, § 14 compared. — The difference in the purposes of this section and art. II, § 14 is that this section guarantees a trial by jury and § 14 provides, among other things, that the trial shall be by an "impartial" jury. State v. Sweat, 1967-NMCA-021, 78 N.M. 512, 433 P.2d 229.
This section guarantees a trial by jury and art. II, § 14 provides, among other things, that the trial shall be by an "impartial" jury. By impartial jury is meant a jury where each and every one of the 12 members constituting the jury is totally free from any partiality whatsoever. "Impartial" is defined in Webster's New International Dictionary (2nd Ed.), as "not partial; not favoring one more than another; treating all alike; unbiased; equitable; fair; just." Accordingly, the jury which one charged with crime is guaranteed is one that does not favor one side more than another, treats all alike, is unbiased, equitable, fair and just. If any juror does not have these qualities, the jury upon which he serves is thereby deprived of its quality of impartiality. State v. Pace, 1969-NMSC-055, 80 N.M. 364, 456 P.2d 197.
Members of jury panel array under 21 years of age. — In a burglary trial, where the jury panel array may have included three jurors under the age of 21, but the members of the petit jury, none of whom were under 21, were selected and qualified according to statute, and defendant did not show that he suffered any prejudice, his motion to quash for lack of a fair and impartial jury was without merit. State v. Chavez, 1974-NMCA-091, 86 N.M. 625, 526 P.2d 219.
Procedure to be followed in securing right to jury. — The right to trial by jury as guaranteed by the constitution is to be distinguished from the procedure to be followed in securing the right. Reasonable regulatory provisions, although different in form and substance from those in effect at the adoption of the constitution, do not abridge, limit or modify the right which is to remain inviolate. Carlile v. Continental Oil Co., 1970-NMCA-051, 81 N.M. 484, 468 P.2d 885.
The supreme court has power to regulate pleading, practice and procedure, and this power may be applied to regulate the procedure to be followed in securing the right to a jury trial, but it may not be used to prohibit entirely the right to jury trial which, under the constitution, is to remain inviolate. State v. Chavez, 1975-NMCA-119, 88 N.M. 451, 541 P.2d 631.
Rule 38(d), N.M.R. Civ. P. (see now Rule 1-038D NMRA), does not contravene this section and is a reasonable procedural regulation. Carlile v. Continental Oil Co., 1970-NMCA-051, 81 N.M. 484, 468 P.2d 885.
A constitutional guaranty of the right of trial by jury does not preclude the adoption of reasonable rules of court providing that a litigant shall not be entitled to a jury trial unless he makes demand within the time and in the manner specified by the rule. Carlile v. Continental Oil Co., 1970-NMCA-051, 81 N.M. 484, 468 P.2d 885.
Although right to trial by jury is guaranteed, one relying thereon must assert it in appropriate form. Knabel v. Escudero, 1927-NMSC-032, 32 N.M. 311, 255 P. 633.
Once jury trial ordered, court not to withdraw. — Under Rule 1-039B NMRA once the parties consent to try an issue before a jury and the court orders a jury trial pursuant to the stipulation, the trial court cannot withdraw the legal issues from the jury on the ground that there are also equitable issues involved. Peay v. Ortega, 1984-NMSC-071, 101 N.M. 564, 686 P.2d 254.
Shareholder's derivative suits. — If a shareholder's derivative suit raises legal claims or issues as to which the corporation is entitled to a jury trial, those claims or issues should be tried by a jury on demand. Scott v. Woods, 1986-NMCA-076, 105 N.M. 177, 730 P.2d 480, cert. quashed, 105 N.M. 26, 727 P.2d 1341.
Excusing prospective juror. — It is within the trial court's discretion as to whether a prospective juror should be excused, and the trial court's decision will not be disturbed unless there is a manifest error or a clear abuse of discretion. State v. Cutnose, 1975-NMCA-021, 87 N.M. 300, 532 P.2d 889, overruled by State v. McCormack, 1984-NMSC-006, 100 N.M. 657, 674 P.2d 1117.
Trial in federal courthouse. — Where the trial was before a jury of the county where crime was committed, and was presided over by the judge of the district in which the county is located, appellant was denied none of the rights guaranteed her by this section and N.M. Const., art. II, § 14, notwithstanding the trial was in a federal courthouse. Smith v. State, 1968-NMSC-144, 79 N.M. 450, 444 P.2d 961.
Determination of competency to stand trial. — Where defendant moved for a jury trial on the question of his competency, the trial court should have determined, after an evidentiary hearing, whether there was reasonable doubt as to defendant's competency, and if the trial court ruled there was reasonable doubt, the issue was for the jury to decide. State v. Chavez, 1975-NMCA-119, 88 N.M. 451, 541 P.2d 631.
In that class of cases where the right to a trial by jury existed prior to the constitution, it cannot be denied by the legislature. To the extent that 31-9-1 NMSA 1978 eliminates the right to a jury determination on the question of mental capacity to stand trial, it violates this section and is void. State v. Chavez, 1975-NMCA-119, 88 N.M. 451, 541 P.2d 631.
Rule 35(b) (see now Rule 5-602 B NMRA) does more than regulate the procedure for securing a jury trial; and to the extent that it eliminates the right to a jury determination on the question of mental capacity to stand trial, it violates this section and is void. State v. Chavez, 1975-NMCA-119, 88 N.M. 451, 541 P.2d 631.
Right of juvenile to jury trial. — At the time of the adoption of the state constitution, a juvenile could not have been imprisoned without a trial by jury. This being true, no change in terminology or procedure may be invoked whereby incarceration could be accomplished in a manner which involved denial of the right to jury trial. Peyton v. Nord, 1968-NMSC-027, 78 N.M. 717, 437 P.2d 716.
Prior to the adoption of the state's first juvenile law in 1917, a minor charged with having committed a criminal offense was handled no differently than an adult. Under the provisions of this section, which reads in part, "the right of trial by jury as it has heretofore existed shall be secured to all and remain inviolate," he would have been entitled to have his guilt determined by a jury before he could have been imprisoned. Peyton v. Nord, 1968-NMSC-027, 78 N.M. 717, 437 P.2d 716.
This section does not entitle a delinquent child to a jury trial in all instances. State v. Doe, 1977-NMCA-092,90 N.M. 776, 568 P.2d 612.
The fact that the jury chooses not to believe defendant does not amount to a denial of a jury trial. State v. Crouch, 1967-NMSC-093, 77 N.M. 657, 427 P.2d 19.
Directed verdicts. — The all important consideration in determining whether to direct a verdict in a civil action is that a party has the constitutional right to have controverted questions of fact settled by the jury. Sanchez v. Gomez, 1953-NMSC-053, 57 N.M. 383, 259 P.2d 346.
Where the evidence is controverted, even though, to the presiding judge, the possibility of a recovery by the plaintiff may appear remote and even though the court may be motivated in its action in directing the verdict by a sincere desire to spare the plaintiff from the further and additional expense which more prolonged proceedings may entail, the party aggrieved may not in such manner be deprived of a jury determination. Sanchez v. Gomez, 1953-NMSC-053, 57 N.M. 383, 259 P.2d 346.
Order compelling arbitration was not unconstitutional on the ground that it deprived defendants of their right to a jury trial without a knowing or intentional waiver. The order was final, and defendants were required to file an appeal to pressure their right to a jury trial. Lyman v. Kern, 2000-NMCA-013, 128 N.M. 582, 995 P.2d 504, cert. denied, 128 N.M. 688, 997 P.2d 820.
Compulsory arbitration is constitutional. — The procedures used in judicial tribunals need not be used in compulsory arbitration, so long as the arbitration procedures are sufficient to guarantee a fair proceeding. Therefore, the provisions of 22-10-17.1 NMSA 1978 (recompiled as 22-10A-28 NMSA 1978) mandating compulsory arbitration of the grievances of discharged school employees do not violate an employee's right of access to the courts, or right to jury trial; nor do these provisions unconstitutionally delegate power to a nonjudicial tribunal. Board of Educ. v. Harrell, 1994-NMSC-096, 118 N.M. 470, 882 P.2d 511.
Quiet title action. — In suit to quiet title, where complaint alleges that defendants are in possession of land in question, are cultivating it and have fenced it, and answer sets up title, possession and right to possession in defendants, defendants have a constitutional right to trial by jury, and court is without jurisdiction to try case as a suit in equity. Pankey v. Ortiz, 1921-NMSC-007, 26 N.M. 575, 195 P. 906, 30 A.L.R. 92.
One charged with a misdemeanor not of the class triable to a justice of the peace is entitled to a jury trial. State v. Jackson, 1967-NMCA-001, 78 N.M. 29, 427 P.2d 46.
Selling liquor without a license. — At the time of the adoption of the constitution and immediately prior thereto, a person charged with selling alcoholic liquor without a license had the right to a trial by jury. State v. Jackson, 1967-NMCA-001,78 N.M. 29, 427 P.2d 46.
Change of venue. — "Right to trial by jury" is in no respect impaired by statute authorizing change of venue, upon state's application, when fair trial cannot be had in county of original venue. State v. Holloway, 1914-NMSC-086, 19 N.M. 528, 146 P. 1066.
Trial by jury. — Insureds' claim that a state's imposition of a mandatory arbitration clause in all title insurance policies was a violation of their state constitutional and seventh amendment right to a trial by jury was upheld. Lisanti v. Alamo Title Ins. of Tex., 2001-NMCA-100, 131 N.M. 334, 35 P.3d 989, aff'd in part, rev'd in part, 2002-NMSC-032, 132 N.M. 750, 55 P.3d 962.
Waiver of right to jury. — Accused in felony case may waive right to trial by jury. State v. Hernandez, 1942-NMSC-010, 46 N.M. 134, 123 P.2d 387.
Although person accused of felony may consent to trial without jury, case may not be tried without jury over state's objection. State ex rel. Gutierrez v. First Judicial Dist. Court, 1948-NMSC-011, 52 N.M. 28, 191 P.2d 334.
The right to a jury trial is a privilege which may be waived, and if a right to jury trial existed in a case where appellant was charged with giving alcoholic beverages to minors, appellant, by proceeding without demand or objection to trial before the court without a jury, waived the privilege granted by the constitution. State v. Marrujo, 1968-NMSC-118, 79 N.M. 363, 443 P.2d 856.
In order to effect waiver of a jury in felony cases, the consent of government counsel and the sanction of the court must be had, in addition to the express and intelligent consent of the defendant. State v. Marrujo, 1968-NMSC-118, 79 N.M. 363, 443 P.2d 856.
By pleading guilty the defendant admits the acts well pleaded in the charge, waives all defenses other than that the indictment or information charges no offense, and waives the right to trial and the incidents thereof, and the constitutional guarantees with respect to the conduct of criminal prosecutions, including right to jury trial, right to counsel subsequent to guilty plea and right to remain silent. State v. Daniels, 1968-NMSC-039, 78 N.M. 768, 438 P.2d 512.
The safeguards required for waiver of a jury in felony cases has never been extended to misdemeanors. State v. Marrujo, 1968-NMSC-118, 79 N.M. 363, 443 P.2d 856.
A defendant charged with a petty offense or a misdemeanor, represented by counsel, who proceeds without objection to trial before the court without a jury, thereby waives the privilege of a jury trial if one is granted in the particular petty offense by the constitution. State v. Marrujo, 1968-NMSC-118, 79 N.M. 363, 443 P.2d 856.
The jury may be waived but, insofar as a juvenile is concerned, this should be permitted only when advised by counsel and it is amply clear that an understanding and intelligent decision has been made. If a juvenile, after considering all the advantages and disadvantages attendant thereon, and having been advised by counsel, waives a trial by jury, then the benefits generally felt to attach through trial to the court would be his. Peyton v. Nord, 1968-NMSC-027, 78 N.M. 717, 437 P.2d 716.
Remand was required for an evidentiary hearing concerning whether defendant voluntarily, knowingly, and intelligently waived his right to a jury trial at the time of denial of his counsel's request for a continuance because of illness. State v. Aragon, 1997-NMCA-087, 123 N.M. 803, 945 P.2d 1021, cert. denied, 123 N.M. 626, 944 P.2d 274.
Trial court's conclusion that defendant waived his right to a jury trial was supported by defendant's testimony that he understood his decision to proceed at a bench trial, that he made the decision after discussing his options with counsel, that he understood the choice before him, that he suffered no mental defect which would render his decision suspect, and that his counsel did not apply pressure or otherwise induce him into waiving his right. State v. Aragon, 1999-NMCA-060, 127 N.M. 393, 981 P.2d 1211, cert. denied, 127 N.M. 389, 981 P.2d 1207.
Child's right to waive jury trial. — A child may waive his or her right to a jury trial without the state's concurrence. In re Christopher K., 1999-NMCA-157, 128 N.M. 406, 993 P.2d 120.
Sentence enhancement. — Where the defendant was not informed of acts that would constitute sufficient evidence of aggravating circumstances when he entered into a plea agreement, the defendant’s waiver of his right to a jury trial in the plea agreement was not a voluntary and intelligent waiver of his right to a jury trial on the sentence enhancement factors. State v. King, 2007-NMCA-130, 142 N.M. 699, 168 P.3d 1123, cert. quashed, 2007-NMCERT-011, 143 N.M. 157, 173 P.3d 764.
In suit to deprive one of the possession of real estate, this section of the constitution grants a right to a jury trial to the one in possession. This right, however, can be waived by the defendant in possession affirmatively seeking to quiet title in himself. Griego v. Roybal, 1968-NMSC-077, 79 N.M. 273, 442 P.2d 585.
Eminent domain proceedings. — It was the purpose of the constitution framers to retain the right to trial by jury as it heretofore existed in the territory of New Mexico except in "special proceedings" unless express provision for jury trial was included therein. Eminent domain proceedings are "special proceedings." El Paso Elec. v. Real Estate Mart, Inc., 1982-NMCA-101, 98 N.M. 490, 650 P.2d 12, cert. denied, 98 N.M. 478, 649 P.2d 1391.
Criminal contempt is not triable by jury. State v. Magee Publishing Co., 1924-NMSC-023, 29 N.M. 455, 224 P. 1028, 38 A.L.R. 142, overruled in part, State v. Morris, 1965-NMSC-113, 75 N.M. 475, 406 P.2d 349.
So long as the fine for criminal contempt which is, or may be, imposed is not more than $1,000, there is no federal constitutional right to jury trial as the crime is a petty offense. Seven Rivers Farm, Inc. v. Reynolds, 1973-NMSC-039, 84 N.M. 789, 508 P.2d 1276.
Action by dissenting shareholder. — There is no statutory or constitutional right to a jury in a proceeding brought by a dissenting shareholder based on the right to an appraisal of the value of a dissenting shareholder's stock for stock valuation created by the legislature. Smith v. First Alamogordo Bancorp., Inc., 1992-NMCA-095, 114 N.M. 340, 838 P.2d 494, cert. denied, 114 N.M. 314, 838 P.2d 468.
No right to jury trial in paternity proceedings. — In a paternity proceeding the putative father is not entitled to a jury trial because such right did not exist at common law or by statute at the time the New Mexico constitution was adopted. State ex rel. Human Servs. Dep't v. Aguirre, 1990-NMCA-083, 110 N.M. 528, 797 P.2d 317.
No right to jury trial in parental-rights terminations. — There is no right to a trial by jury in parental rights termination proceedings. State ex rel. Children, Youth & Families Dep't v. T.J., 1997-NMCA-021, 123 N.M. 99, 934 P.2d 293, cert. denied, 122 N.M. 808, 932 P.2d 498.
Violation of city ordinances. — Violation of ordinance prohibiting use of vile and abusive language is a petty offense tried at common law summarily without a jury, and may be prosecuted before a police judge without a jury. Guiterrez v. Gober, 1939-NMSC-008, 43 N.M. 146, 87 P.2d 437.
Prior convictions. — Defendant is not entitled to have a jury find the facts of his prior convictions beyond a reasonable doubt under this section. State v. Sandoval, 2004-NMCA-046, 135 N.M. 420, 89 P.3d 92, cert. denied, 2004-NMCERT-004, 135 N.M. 562, 91 P.3d 603.
Forcible entry and detainer action. — No right to trial by jury exists in forcible entry and detainer actions in absence of express statutory authority since action is a special statutory proceeding, summary in character. Reece v. Montano, 1943-NMSC-054, 48 N.M. 1, 144 P.2d 461, superseded by statute, State v. James, 1966-NMSC-116, 76 N.M. 416, 415 P.2d 543.
Injunctive actions. — In suit to enjoin defendant from practicing medicine as a public nuisance, he was not entitled to trial by jury. State ex rel. Marron v. Compere, 1940-NMSC-041, 44 N.M. 414, 103 P.2d 273.
Mortgage foreclosure. — Parties in mortgage foreclosure suit cannot have jury trial upon issue of indebtedness. Young v. Vail, 1924-NMSC-003, 29 N.M. 324, 222 P. 912, 34 A.L.R. 980, overruled by Evans Financial Corp. v. Strasser, 1983-NMSC-053, 99 N.M. 788, 664 P.2d 986.
Probate court appeals. — No party to a proceeding brought in probate court and appealed or removed to district court under statute is entitled to jury trial as a matter of right. In re Sheley's Estate, 1931-NMSC-011, 35 N.M. 358, 298 P. 942.
Quiet title action. — Where in a quiet title action neither possession nor any other issue at law is in anywise involved, and the action is essentially one in equity rather than one in the nature of ejectment, or otherwise at law, jury trial is properly denied. Harlan v. Sparks, 125 F.2d 502 (10th Cir. 1942).
Remittitur. — Remission by plaintiff of part of verdict at suggestion of trial court, followed by judgment for sum remaining, does not deprive defendant of his constitutional right to have question of damages tried by jury. Henderson v. Dreyfus, 1919-NMSC-023, 26 N.M. 541, 191 P. 442.
Rescission. — Purchaser of real estate did not have the right to trial by jury on a claim for equitable rescission under the federal Interstate Land Sales Full Disclosure Act or under the state constitution. Las Campanas Ltd. Partnership v. Pribble, 1997-NMCA-055, 123 N.M. 520, 943 P.2d 554.
Trial de novo. — There is no right to jury trial on appeal to district court from justice court conviction of unlawful liquor sales. City of Clovis v. Dendy, 1931-NMSC-007, 35 N.M. 347, 297 P. 141.
On appeal from justice of peace, trial de novo in district court does not of itself contemplate that there be a jury trial, and district court is not bound by procedure and rules of justice court. Reece v. Montano, 1943-NMSC-054, 48 N.M. 1, 144 P.2d 461, superseded by statute, State v. James, 1966-NMSC-116, 76 N.M. 416, 415 P.2d 543.
Driving under influence of intoxicating liquor. — Where defendant was convicted by a jury in magistrate court of aggravated DWI, first offense, which carried a maximum sentence of incarceration of ninety days; defendant appealed to district court and filed a demand for a jury trial; the district court denied defendant’s request for a jury trial; and at a bench trial, the district court found defendant guilty of DWI, the district court did not violate defendant’s right to a jury trial under the sixth amendment of the United States Constitution or Article II, Section 12 of the New Mexico Constitution because the maximum period of imprisonment was less than six months and defendant could not overcome the presumption that the offense of DWI, first offense, was not a serious offense for purposes of the sixth amendment right to a jury trial. State v. Cannon, 2014-NMCA-058, cert. denied, 2014-NMCERT-006.
Denial of jury trial on charge of driving under the influence of intoxicating liquor as prohibited by state law is not unconstitutional, since maximum penalty of 90 days in jail and $200 fine was not so severe as to remove it from the petty offense class. Hamilton v. Walker, 1959-NMSC-047, 65 N.M. 470, 340 P.2d 407.
The fact that a conviction under a municipal ordinance for drunken driving automatically sets in motion a proper exercise of the state police power has no connection with or relevance to the appellant's right to a jury trial. City of Tucumcari v. Briscoe, 1954-NMSC-103, 58 N.M. 721, 275 P.2d 958.
Mandatory revocation of the driving license of any person convicted under former 64-13-59, 1953 Comp. (similar to 66-5-29 NMSA 1978) for a period of one year does not deny the right to trial by a jury in district court on appeal, in violation of this constitutional section or N.M. Const., art. II, § 14. City of Tucumcari v. Briscoe, 1954-NMSC-103, 58 N.M. 721, 275 P.2d 958.
Phrase "as it has heretofore existed" refers to the right to jury trial as it existed in the territory of New Mexico immediately preceding adoption of the constitution. Bliss v. Greenwood, 1957-NMSC-071, 63 N.M. 156, 315 P.2d 223; Guiterrez v. Gober, 1939-NMSC-008, 43 N.M. 146, 87 P.2d 437; Young v. Vail, 1924-NMSC-003, 29 N.M. 324, 222 P. 912, 34 A.L.R. 980, overruled by Evans Financial Corp. v. Strasser, 1983-NMSC-053, 99 N.M. 788, 664 P.2d 986; State v. Holloway, 1914-NMSC-086, 19 N.M. 528, 146 P. 1066, 1915F L.R.A. 922.
It was the purpose of the constitution framers to retain the right of trial by jury, as it theretofore existed in the territory of New Mexico, except in special proceedings, for which express provision was made in the same instrument. Seward v. Denver & R.G.R.R., 1913-NMSC-019, 17 N.M. 557, 131 P. 980, 46 L.R.A. (n.s.) 242.
This section is to be applicable only to those cases to which this right was secure at the time of the enactment of the constitution. State v. Sweat, 1967-NMCA-021, 78 N.M. 512, 433 P.2d 229.
The law applicable at the adoption of the constitution in reference to right to trial by jury in prosecution by information was preserved by the language of the constitution. State v. Jackson, 1967-NMCA-001, 78 N.M. 29, 427 P.2d 46.
This section does not grant any right of trial by jury, but merely continues that which existed in the territory preceding adoption of the constitution. Guiterrez v. Gober, 1939-NMSC-008, 43 N.M. 146, 87 P.2d 437.
The right to trial by jury which is guaranteed by the constitution refers to the right as it had existed and was enforced in the territory of New Mexico at the time of the adoption of the constitution and does not guarantee such right in all cases of alleged violations of criminal statutes. Hamilton v. Walker, 1959-NMSC-047, 65 N.M. 470, 340 P.2d 407.
The constitution continues the right to jury trial in that class of cases in which it existed either at common law or by statute at the time of adoption of the constitution. State v. Chavez, 1975-NMCA-119, 88 N.M. 451, 541 P.2d 631.
The constitution continues the right to jury trial in that class of cases in which it existed either at common law or by statute at the time of the adoption of the constitution and in that class of cases where the right to a trial by jury existed prior to the constitution, it cannot be denied by the legislature. State ex rel. Bliss v. Greenwood, 1957-NMSC-071, 63 N.M. 156, 315 P.2d 223.
Multiple crimes arising from single incident. — In determining the constitutional right to jury trial of a defendant charged with more than one petty crime arising from a single incident, a court should consider the objective measure of the combined, maximum statutory penalties rather than the subjective measure of the actual penalty threatened at the commencement of trial. State v. Sanchez, 1990-NMSC-012, 109 N.M. 428, 786 P.2d 42.
Rule against cumulating possible sentences is overruled. — The holding of State v. James, 1966-NMSC-116, 76 N.M. 416, 415 P.2d 543 that potential sentences facing a defendant should not be cumulated in determining whether the defendant was entitled to a jury trial, but should be treated separately, is expressly overruled because the rationale supporting the concept of objective measures is more in line with the constitutional mandate for jury trials in cases in which the possible sentence exceeds six months, whether for a single offense or for multiple offenses arising from the same incident or transaction. State v. Sanchez, 1990-NMSC-012, 109 N.M. 428, 786 P.2d 42.
Right to jury trial does not apply to juvenile amenability determinations. — A determination of amenability to treatment or rehabilitation of a youthful offender pursuant to Section 32A-2-20 NMSA 1978 is not within the scope of the rule of Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed.2d 435 (2000), and the sixth amendment’s guarantee of a jury trial does not apply to amenability proceedings. State v. Rudy B., 2010-NMSC-045, 149 N.M. 22, 243 P.3d 726, rev’g 2009-NMCA-104, 147 N.M. 45, 216 P.3d 810.
Those misdemeanors triable in district court do not provide for a trial by jury unless such crime was of the type which enjoyed and permitted trial by jury at the time of the adoption of this section. 1964 Op. Att'y Gen. No. 64-37.
Trial by jury in the various state courts is not guaranteed by the federal constitution. United States Const., art. III and amend. VI concern defendants before federal courts only. Nor is this right extended by U.S. Const. amend. XIV, which is limited to the general requirement of due process, more particularly concerning the procedural and substantive requirements of notice and an opportunity to be heard. Within this the states may establish any system of criminal courts deemed desirable. The constitution of New Mexico granted no new rights so far as the question of a right to a jury trial is concerned. This section provides: "The right of trial by jury as it has heretofore existed shall be secured to all and remain inviolate." 1958 Op. Att'y Gen. No. 58-36.
This constitutional provision has been interpreted by the New Mexico supreme court to continue the right to jury trial in that class of cases where the right to a trial by jury existed prior to the constitution of New Mexico. 1964 Op. Att'y Gen. No. 64-37.
By this section, the right to trial by jury was guaranteed only to the extent that it existed prior to the adoption of the constitution. 1958 Op. Att'y Gen. No. 58-36.
This section requires a unanimous verdict in a criminal case. 1972 Op. Att'y Gen. No. 72-31.
Waiver of jury trial in criminal case requires consent of the state. 1953 Op. Att'y Gen. No. 53-5686.
No right of trial by jury exists in municipal court in "petty" or "minor" cases arising from the violation of city ordinances. 1964 Op. Att'y Gen. No. 64-37.
The case of City of Tucumcari v. Briscoe, 58 N.M. 721, 275 P.2d 958 (1954), specifically holds that the offense of driving while intoxicated is within the class denominated "petty" and as such is triable without a jury if the violation is that of a municipal ordinance. However, it should be pointed out that this case appears to be limited to municipal ordinances and is not concerned with the acts of the state legislature. 1958 Op. Att'y Gen. No. 58-38.
In a first offense case of driving while intoxicated, defendant is not entitled as a right to a jury trial in the district court for the reason that such an offense is deemed a "petty" offense in New Mexico pursuant to Gutierrez v. Gober, 1939-NMSC-008, 43 N.M. 146, 87 P.2d 437 and City of Tucumcari v. Briscoe, 1954-NMSC-103, 58 N.M. 721, 275 P.2d 958. 1958 Op. Att'y Gen. No. 58-36.
Driving while intoxicated violations of state statutes in district courts tested by the "petty" or "grave" standard do not give rise to the right of trial by jury. 1958 Op. Att'y Gen. No. 58-36.
In criminal cases over which a justice of the peace has jurisdiction, a defendant is entitled to a jury trial by a six-man jury, if demand is timely made (opinion rendered under former 36-12-3, 1953 Comp.). 1964 Op. Att'y Gen. No. 64-37.
Law reviews. — For comment, "Juries - New Trial - Discovery of Juror's Disqualification or False Answer on Voir Dire as Ground for New Trial," see 7 Nat. Resources J. 415 (1967).
For article, "Survey of New Mexico Law, 1979-80: Criminal Law and Procedure," see 11 N.M. L. Rev. 85 (1981).
For article, "Separation of Powers and the Judicial Rule-Making Power in New Mexico: The Need for Prudential Restraints," see 15 N.M. L. Rev. 407 (1985).
For annual survey of New Mexico Criminal Procedure, see 20 N.M. L. Rev. 285 (1990).
For note, "Civil Procedure and Constitutional Law: Changing New Mexico Remittitur Procedure to Protect the Appropriate Balance of Power Between Judge and Jury - Allsup's Convenience Stores, Inc. v. North River Insurance Co.," see 32 N.M. L. Rev. 277 (2002).
Am. Jur. 2d, A.L.R. and C.J.S. references. — 47 Am. Jur. 2d Jury § 3 et seq.
Removal of public officer, right to jury trial in proceedings for, 3 A.L.R. 232, 8 A.L.R. 1476.
Seizure of property alleged to be illegally used, right to jury trial, 17 A.L.R. 568, 50 A.L.R. 97.
Validity of statute allowing for separation of jury, 34 A.L.R. 1128, 79 A.L.R. 821, 21 A.L.R.2d 1088.
Right to consent to trial of criminal case before 12 jurors, 70 A.L.R. 279, 105 A.L.R. 1114.
Declaratory judgment action as infringement of right to jury trial, 87 A.L.R. 1209.
Right to jury trial in disbarment proceedings, 107 A.L.R. 692.
Appearance to demand jury trial as submission to jurisdiction, 111 A.L.R. 925.
Deficiency judgment, right to jury trial of issues as to, 112 A.L.R. 1492.
Right to jury trial in suit to remove cloud, quiet title or determine adverse claims, 117 A.L.R. 9
Interlocutory ruling of one judge on right to jury trial as binding on another judge in same case, 132 A.L.R. 68.
Right to jury trial as to fact essential to action or defense but not involving merits thereof, 170 A.L.R. 383.
Right to jury trial in action under Fair Labor Standards Act, 174 A.L.R. 421.
Insanity: constitutional right to jury trial in proceeding for adjudication of incompetency or insanity or for restoration, 33 A.L.R.2d 1145.
Mandamus or prohibition as remedy to enforce right to jury trial, 41 A.L.R.2d 780.
Arbitration statute as denial of jury trial, 55 A.L.R.2d 432.
Consolidated trial upon several indictments or informations against same accused, over his objection, 59 A.L.R.2d 841.
Substitution of judge: right to jury trial as violated by substitution in criminal case, 83 A.L.R.2d 1032.
Indoctrination by court of persons summoned for jury service, 89 A.L.R.2d 197.
Rule or statute requiring opposing party's consent to withdrawal of demand for jury trial, 90 A.L.R.2d 1162.
Juvenile court delinquency proceedings, right to jury trial in, 100 A.L.R.2d 1241.
Eminent domain: how to obtain jury trial in eminent domain: waiver, 12 A.L.R.3d 7.
Intoxication: motor vehicles: right to trial by jury in criminal prosecution for driving while intoxicated or similar offense, 16 A.L.R.3d 1373.
Right in equity suit to jury trial of counterclaim involving legal issue, 17 A.L.R.3d 1321.
Garnishment: issues in garnishment as triable to court or to jury, 19 A.L.R.3d 1393.
Statute reducing number of jurors as violative of right to trial by jury, 47 A.L.R.3d 895.
Former law enforcement officers as qualified jurors in criminal cases, 72 A.L.R.3d 958.
Right to jury trial on vacation of judgment, 75 A.L.R.3d 894.
Validity and efficacy of accused's waiver of unanimous verdict, 97 A.L.R.3d 1253.
Propriety of sentencing justice's consideration of defendant's failure or refusal to accept plea bargain, 100 A.L.R.3d 834.
Waiver, after not guilty plea, of jury trial in felony case, 9 A.L.R.4th 695.
Validity of agreement, by stipulation or waiver in state civil case, to accept verdict by number or proportion of jurors less than that constitutionally permitted, 15 A.L.R.4th 213.
Right to jury trial in stockholder's derivative action, 32 A.L.R.4th 1111.
Right of accused, in state criminal trial, to insist, over prosecutor's or court's objection, on trial by court without jury, 37 A.L.R.4th 304.
Admissibility, at criminal prosecution, of expert testimony on reliability of eyewitness testimony, 46 A.L.R.4th 1047.
Automobiles: validity and construction of legislation authorizing revocation or suspension of operator's license for "habitual," "persistent," or "frequent" violations of traffic regulations, 48 A.L.R.4th 367.
Paternity proceedings: right to jury trial, 51 A.L.R.4th 565.
Right to jury trial in action for retaliatory discharge from employment, 52 A.L.R.4th 1141.
Right to jury trial in state court divorce proceedings, 56 A.L.R.4th 955.
Validity of law or rule requiring state court party who requests jury trial in civil case to pay costs associated with jury, 68 A.L.R.4th 343.
Small claims: jury trial rights in, and on appeal from, small claims court proceeding, 70 A.L.R.4th 1119.
Validity, construction, and effect of statute limiting amount recoverable in dram shop action, 78 A.L.R.4th 542.
Right to jury trial in action under state civil rights law, 12 A.L.R.5th 508.
Use of peremptory challenges to exclude ethnic and racial groups, other than Black Americans, from criminal jury - post- Batson state cases, 20 A.L.R.5th 398.
Validity, construction, and application of state statutory provisions limiting amount of recovery in medical malpractice claims, 26 A.L.R.5th 245.
Substitution of judge in state criminal trial, 45 A.L.R.5th 591.
Constitutional right to jury trial in cause of action under state unfair or deceptive trade practices law, 54 A.L.R.5th 631.
Right to jury trial in child neglect, child abuse, or termination of parental rights proceedings, 102 A.L.R.5th 227.
Complexity of civil action as affecting seventh amendment right to trial by jury, 54 A.L.R. Fed. 733.
Right to jury trial on issue of damages in copyright infringement actions under 17 U.S.C.A. § 504, 163 A.L.R. Fed. 467.