2023 New Mexico Statutes › Chapter 38 - Trials › Article 5 - Drawing and Empaneling Jurors › Section 38-5-14 - Exercising challenges to jurors.

The court shall permit the parties to a case to express in the record of trial any challenge to a juror for good cause. The court shall rule upon the challenge and may excuse any juror for good cause. Challenges for good cause and peremptory challenges shall be made outside the hearing of the jury. The party making a challenge shall not be announced or disclosed to the jury panel, but each challenge shall be recorded by the clerk and placed in the case file. In civil trials, the opposing parties shall exercise peremptory challenges alternately. In juvenile or criminal cases, the state or prosecution shall pass or accept or make any peremptory challenge as to each juror before the defendant is called upon to pass, accept or exercise a peremptory challenge as to the juror. In civil cases, each party may challenge five jurors peremptorily. When there are two or more parties defendant or parties plaintiff, they shall exercise their peremptory challenges jointly, and if all cannot agree on a challenge desired by one party on a side, then the challenge is forfeited. However, if the relief sought by or against the parties on the same side of a civil case differs, or if their interests are diverse, or if cross-claims are to be tried, the court shall allow each party on that side of the suit five peremptory challenges.
History:
1953 Comp., § 19-1-14, enacted by Laws 1969, ch. 222, § 14; 1991, ch. 71, § 6.
ANNOTATIONS
Cross references.
— For challenges of jurors in civil cases,
see
Rule 1-038E NMRA.
For challenging of alternate jurors in civil cases,
see
Rule 1-047B NMRA.
For challenging of jurors in criminal cases,
see
Rule 5-606 NMRA.
The 1991 amendment,
effective April 1, 1991, added "and placed in the case file" at the end of the fourth sentence and made minor stylistic changes throughout the section.
If and when the trial court reverses its ruling on a challenge of a juror for cause,
the court should ask the party whose challenge was overruled if that party wishes to use a peremptory challenge retroactively.
Benavidez v. City of Gallup
, 2007-NMSC-026, 141 N.M. 808, 161 P.3d 853.
Meaning of "party".
— The rule is well established that more than one defendant having identical interests and a common defense in a suit constitute but one party; if there is no suggestion of antagonism of interests between defendants found in the pleadings and no adverse issues pleaded by them, they constitute but one party. However, the rule is different if the pleadings show that one defendant has asked for judgment over against another defendant; the question then to be determined is whether or not there is a conflict of interest between the defendants.
American Ins. Co. v. Foutz & Bursum
, 1955-NMSC-107, 60 N.M. 351, 291 P.2d 1081 (decided under former law).
Section recognizes possibility of multiple parties.
— This section, concerning the exercise of peremptory challenges of prospective jurors, clearly recognizes that there may be and often are multiple parties on each side of an action or proceeding.
Romero v. Felter
, 1972-NMSC-032, 83 N.M. 736, 497 P.2d 738.
Separate controversy between third-party plaintiff and defendant.
— Where a third-party plaintiff alleged that the negligent acts of a third-party defendant were a breach or violation of a duty owed to him and prayed for full indemnity or, in the alternative, contribution from the third-party defendant for any amount which should be granted the plaintiffs as a result of the principal suit, and the third-party defendant asserted defenses against the third-party plaintiff, there was an antagonism of interests between the third-party plaintiff and defendant sufficient to constitute a separate controversy between them for purposes of exercising their peremptory challenges.
American Ins. Co. v. Foutz & Bursum
, 1955-NMSC-107, 60 N.M. 351, 291 P.2d 1081 (decided under former law).
Although manner of exercising challenges of jurors ordered by the court was erroneous, it was harmless
where appellant had two peremptory challenges left.
Territory v. Padilla
, 1903-NMSC-009, 12 N.M. 1, 71 P. 1084.
Law reviews.
— For note and comment, "Trends in New Mexico Law: 1994-95: Criminal Procedure What Constitutes a Race-Neutral Explanation for Using Peremptory Challenges? State v. Guzman and Purkett v. Elem," see 26 N.M.L. Rev. 555 (1996).
Am. Jur. 2d, A.L.R. and C.J.S. references. —
47 Am. Jur. 2d Jury § 228 et seq.
Membership in secret order or organization for the suppression of crime as proper subject of examination, or ground of challenge, of juror, 31 A.L.R. 411, 158 A.L.R. 1361.
Presumption of innocence or rule as to reasonable doubt, failure to understand or unwillingness to accept as rendering juror incompetent, 40 A.L.R. 612.
Personal injury or death action, questions to jury in, as to interest in, or connection with, indemnity insurance company, 56 A.L.R. 1454, 74 A.L.R. 849, 95 A.L.R. 388, 105 A.L.R. 1319, 4 A.L.R.2d 761.
Statutory grounds for challenge of jurors for cause of exclusive or common-law grounds, 64 A.L.R. 645.
Extrinsic evidence in support of challenge to juror for cause, right to introduce, 65 A.L.R. 1056.
Implied bias or interest because of relationship to one who would be subject to challenge for that reason, challenge of proposed juror for, 86 A.L.R. 118.
Excusing qualified juror drawn in criminal case, defendant's right to complain of, as affected by existence or absence of right of peremptory challenge, 96 A.L.R. 514.
Insurance company, prospective juror's connection with, as ground for challenge for cause in action for personal injuries or damage to property, 103 A.L.R. 511.
Defense, prejudice against certain type of, as ground of challenge for cause of juror in criminal case, 112 A.L.R. 531.
Secret order or organization for suppression of crime, membership in, as ground for a challenge of juror, 158 A.L.R. 1361.
Competency of juror as affected by his participation in a case of similar character, but involving the party making the objection, 160 A.L.R. 753.
Right to peremptory challenges in selection of jury to try issue of former conviction, 162 A.L.R. 429.
Governing law as to existence or character of offense for which one has been convicted in a federal court or court of another state, as bearing upon disqualification to sit on jury, 175 A.L.R. 805.
Peremptory challenge after acceptance of juror, 3 A.L.R.2d 499.
Waiver of peremptory challenge or challenges in civil case other than by acceptance by juror, 56 A.L.R.2d 742.
Additional counsel: right to peremptory challenge as prejudice by appearance of additional counsel in civil case after impaneling of jury, 56 A.L.R.2d 971.
Previous knowledge of facts of civil case by juror as disqualification, 73 A.L.R.2d 1312.
Residents or taxpayers of litigating political subdivision, disqualification in absence of specific controlling statute, 81 A.L.R.2d 708.
Relationship of juror to witness in civil case as ground of disqualification, 85 A.L.R.2d 851.
Number: effect of allowing excessive number of peremptory challenges, 95 A.L.R.2d 957.
Number of peremptory challenges allowable in civil cases where there are more than two parties involved, 32 A.L.R.3d 747.
Capital punishment, beliefs as disqualifying juror in capital case for cause, 39 A.L.R.3d 550.
Use of peremptory challenge to exclude from jury persons belonging to race or class, 79 A.L.R.3d 14, 20 A.L.R.5th 398.
Right of defense in criminal prosecution to disclosure of prosecution information regarding prospective jurors, 86 A.L.R.3d 571.
Racial or ethnic prejudice of prospective jurors as proper subject of inquiry or ground of challenge on voir dire in state criminal case, 94 A.L.R.3d 15.
Additional peremptory challenges because of multiple criminal charges, 5 A.L.R.4th 533.
Validity and construction of statute or court rule prescribing number of peremptory challenges in criminal cases according to nature of offense or extent of punishment, 8 A.L.R.4th 149.
Deafness of juror as ground for impeaching verdict, or securing new trial or reversal on appeal, 38 A.L.R.4th 1170.
Cure of prejudice resulting from statement by prospective juror during voir dire, in presence of other prospective jurors, as to defendant's guilt, 50 A.L.R.4th 969.
Professional or business relations between proposed juror and attorney as ground for challenge for cause, 52 A.L.R.4th 964.
Fact that juror in criminal case, or juror's relative or friend, has previously been victim of criminal incident as ground of disqualification, 65 A.L.R.4th 743.
Effect of juror's false or erroneous answer on voir dire regarding previous claims or actions against himself or his family, 66 A.L.R.4th 509.
Prospective juror's connection with insurance company as ground for challenge for cause, 9 A.L.R.5th 102.
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.
Use of preemptory challenges to exclude caucasian persons, as a racial group, from criminal jury - post-Batson state cases, 47 A.L.R.5th 259.
Propriety of inquiry on voir dire as to juror's attitude toward, or acquaintance with literature dealing with amount of damage awards, 63 A.L.R.5th 285.
Use of peremptory challenges to exclude persons from criminal jury based on religious affiliation - post-Batson state cases, 63 A.L.R.5th 375.
Examination and challenge of state case jurors on basis of attitudes toward homosexuality, 80 A.L.R.5th 469.
Examination and challenge of federal case jurors on basis of attitudes toward homosexuality, 85 A.L.R. Fed. 864.
50 C.J.S. Juries §§ 247 to 259, 267 to 285.