2021 New Mexico Statutes
Article 5 - Drawing and Empaneling Jurors
Section 38-5-2 - Exemption from jury service; excusals; service of disqualified juror.

A. A person who has served as a member of a petit jury panel or a grand jury in either state or federal courts within the preceding thirty-six months shall be exempt from sitting or serving as a juror in a court of this state when the person requests to be exempted from service by reason of the exemption granted by this subsection.
B. A person who is seventy-five years of age or older who requests exemption from jury service with a local court shall be permanently exempt from jury service.
C. A person may be excused from jury service at the discretion of the judge or the judge's designee, with or without the person's personal attendance upon the court, if:
(1) jury service would cause undue or extreme physical or financial hardship to the prospective juror or to a person under the prospective juror's care or supervision;
(2) the person has an emergency that renders the person unable to perform jury service; or
(3) the person presents other satisfactory evidence to the judge or the judge's designee.
D. A person requesting an exemption or an excuse from jury service shall take all necessary action to obtain a ruling on the request no later than the date on which the person is scheduled to appear for jury duty.
E. The judge, in the judge's discretion, upon granting any excuse, may disallow the fees and mileage of the person excused.
F. The service upon a jury of a person disqualified shall, of itself, not vitiate any indictment found or any verdict rendered by that jury, unless actual injury to the person complaining of the injury is shown.
G. As used in this section and Section 38-5-1 NMSA 1978, "undue or extreme physical or financial hardship":
(1) means circumstances in which a person would:
(a) be required to abandon another person under the person's care or supervision due to the extreme difficulty of obtaining an appropriate substitute caregiver during the period of jury service;
(b) incur costs that would have a substantial adverse impact on the payment of necessary daily living expenses of the person or the person's dependent; or
(c) suffer physical hardship that would result in illness or disease; and
(2) does not exist solely because a prospective juror will be absent from employment.
History: 1953 Comp., § 19-1-2, enacted by Laws 1973, ch. 150, § 1; 1979, ch. 173, § 1; 2005, ch. 107, § 5; 2009, ch. 26, § 1; 2021, ch. 101, § 1.
Cross references. — For mileage and compensation for jurors, see 38-5-15 NMSA 1978.
For exemption from jury service of state guard members, see 20-5-15 NMSA 1978.
The 2021 amendment, effective June 18, 2021, allowed persons seventy-five years of age or older to be exempted from jury service without requiring an affidavit; and in Subsection B, after "seventy-five years of age or older who", deleted "files an affidavit requesting an" and added "requests".
The 2009 amendment, effective June 19, 2009, added Subsection B.
The 2005 amendment, effective July 1, 2005, added Subsections B(1) through (3) to provide that a person may be excused from jury service at the discretion of the judge or the judge's designee because of physical or financial hardship, an emergency or other factors satisfactory to the judge or the judge's designee; added Subsection C to require a person who requests an exemption or excuse from jury service to obtain a ruling not later than the scheduled appearance date; and added Subsection F to define "undue or extreme physical or financial hardship" for this section and Section 38-5-1 NMSA 1978.
"Disqualified" juror. — A "disqualified" juror is one who is the opposite of, or contrary of, a qualified juror. State v. Chama Land & Cattle Co., 1990-NMCA-129, 111 N.M. 317, 805 P.2d 86, cert. denied, 111 N.M. 262, 804 P.2d 1081.
There is no substantive difference between an unqualified juror and a disqualified juror. Neither should be on the grand jury. State v. Chama Land & Cattle Co., 1990-NMCA-129, 111 N.M. 317, 805 P.2d 86, cert. denied, 111 N.M. 262, 804 P.2d 1081.
Applicability of section. — This section applies to a juror never qualified as well as to a juror who was once qualified but is not now qualified. State v. Chama Land & Cattle Co., 1990-NMCA-129, 111 N.M. 317, 805 P.2d 86, cert. denied, 111 N.M. 262, 804 P.2d 1081.
Presence of grand juror not disruptive. — There is nothing inherently disruptive about the presence of a grand juror who had no preconceived interest in the way the witnesses testified. State v. Chama Land & Cattle Co., 1990-NMCA-129, 111 N.M. 317, 805 P.2d 86, cert. denied, 111 N.M. 262, 804 P.2d 1081.
Showing of prejudice required. — A defendant must show prejudice resulting from an unqualified juror's presence on the grand jury before the court of appeals will set aside an indictment. State v. Chama Land & Cattle Co., 1990-NMCA-129, 111 N.M. 317, 805 P.2d 86, cert. denied, 111 N.M. 262, 804 P.2d 1081.
No abuse of court's discretion. — Where the trial court excused one prospective juror because he had been convicted of a felony in 1958, the court explaining that it did not know whether the person excused was eligible to serve as a juror and did not want any questions of eligibility to arise later, and the defendant asserted this was error, but did not explain how excusing this person was an abuse of the trial court's discretion, then, under these circumstances, there was no abuse of the court's discretion. State v. Padilla, 1978-NMCA-020, 91 N.M. 451, 575 P.2d 960.
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).
Am. Jur. 2d, A.L.R. and C.J.S. references. — 47 Am. Jur. 2d Jury § 180 et seq.
Contributing to fund for prosecution as disqualifying juror, 1 A.L.R. 519.
Prosecutor or witness for prosecution, relationship to, as disqualifying juror in criminal case, 18 A.L.R. 375.
Relationship to one financially affected by offense charged as disqualifying juror, 63 A.L.R. 183.
Class membership in which may be supposed to involve bias or prejudice, power of court to exclude all persons belonging to, from panel or venire for particular case, 105 A.L.R. 1527.
Dissolution of marriage as affecting disqualifying relationship by affinity in case of juror, 117 A.L.R. 800.
Proof as to exclusion of or discrimination against eligible class or race in respect to jury in criminal case, 1 A.L.R.2d 1291.
Attorneys, exclusion from jury list in criminal cases, 32 A.L.R.2d 890.
Jury: who is lawyer or attorney disqualified or exempt from service, or subject to challenge for cause, 57 A.L.R.4th 1260.
Exclusion of women from grand or trial jury or jury panel in criminal case as violation of constitutional rights of accused or as ground for reversal of conviction - state cases, 70 A.L.R.5th 587.
50 C.J.S. Juries § 153.