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II.   The Trial Commences

What Happens At Trial?

The trial of a person charged with a felony is held in district court before a judge and jury of twelve (12) people, randomly selected, who will determine whether the accused is guilty. Misdemeanor cases are tried in metropolitan or magistrate court before either a judge, (bench trial), or a judge and a jury of six (6) people. The verdict is based on testimony of witnesses and evidence presented according to New Mexico law.

Trials follow certain procedure. Some of the events that you should be aware of are as follows:

  • OPENING STATEMENTS: In their opening statements the district attorney and the defense attorney outline the evidence expected to be presented. Opening statements are not evidence, but are only explanations by the attorneys of what each side expects the evidence to prove. A defense attorney may give an opening statement immediately after that of the district attorney or at the close of the State's case. Likewise, a defense attorney may elect to give no opening statement at all.

  • STATE'S CASE: The district attorney on behalf of the state will present evidence against the defendant. This begins with the State attorney's direct examination of the witness. Next, the defense attorney may cross examine the witness. Upon completion, the district attorney may again question the witness. This is called redirect examination.

  • DEFENDANT'S CASE: After presentation of evidence for the State has been completed, the defense attorney may present witnesses for his/her side. This is the usual procedure. However, since the burden to prove the defendant committed the alleged offense is on the State, the defense need not present any evidence if they choose, and the defendant is not required to testify on his/her behalf.

  • JURY INSTRUCTIONS: Jury instructions precede closing arguments. At this time, the judge will inform the jury of the issues to be decided and the rules of law that apply to the case.

  • CLOSING ARGUMENTS: At the conclusion of all of the evidence, closing arguments will be presented. Closing arguments are not evidence, but are only summaries by both sides of the evidence presented during trial from their respective viewpoints. The State goes first, followed by the defense attorney. The State is then allowed a rebuttal argument.

  • JURY DELIBERATIONS: After receiving instructions and hearing closing arguments, the jury considers the evidence and decides whether the defendant is guilty.

  • JURY VERDICT: Jury deliberations are concluded when a unanimous verdict has been reached. When this is done, the jury returns to the courtroom and the jury verdict is announced. If the jury is unable to arrive at a unanimous verdict, the judge will declare a mistrial. This means that a new trial will probably be scheduled at a later date.

How Do I Testify?

Witnesses naturally feel apprehensive about their first appearance in court because they do not know what to expect. The following suggestions should help you prepare for your court appearance.

  • If you have been served by a subpoena, bring it to court with you. The subpoena will provide information on when and where to appear.

  • If you are going to testify about records, familiarize yourself with them before trial.

  • The trial of a criminal case is a serious matter. While in the courthouse, conduct yourself in a dignified matter.

  • A neat appearance is important.

  • Do not try to memorize what you will say in court, but try to recall just what you observed at the time of the incident.

  • Remember, jury members are ordinary people just like yourself. Don't be embarrassed. Speak frankly and loudly enough for them to hear you.

  • Look at the jurors and speak to them when testifying. A jury considers attitude, facial expressions, and body language when evaluating testimony.

  • DO NOT LOSE YOUR TEMPER. Be courteous.


  • Do not hedge on questions or try to argue with the attorneys.

  • LISTEN CAREFULLY TO THE QUESTIONS. If improper, an attorney will object. Never answer a question you don't understand or give a snap answer without thinking. Have the question repeated if necessary.

  • If you can't answer a question yes or no, you should say so.

  • Directly and simply answer ONLY the question asked. DO NOT volunteer information.

  • If your answer was not correctly stated, correct it immediately.

  • Do not give your opinions or conclusions unless asked.

  • Testify only to the FACTS you observed or know, not what you think about those facts.

  • You will be asked to take an oath to tell the truth. Remember the seriousness of this oath during the entire time you are testifying. If you willfully fail to tell the truth while testifying, you may be subject to penalties for perjury.

  • If asked whether you have discussed the case with anyone, you should indicate any occasion that you have talked with the prosecutor, defense attorney, and officers.

  • If the judge interrupts or an attorney objects to your answer, stop answering immediately. Likewise, if an attorney objects to a question, do not begin your answer until the judge tells you to do so.

  • You should NEVER attempt to talk to a juror about the case or any other matter while the case is being tried. This includes chance meetings during recesses, in hallways, at lunch, or any other place.

  • When possible, look at the jurors when answering questions. They are the people who need the information you possess.

Will the Defendant Be Punished?

If a defendant is convicted of a criminal offense, the judge will determine the appropriate sentence. The trial judge generally has some discretion in what specific punishment is ordered. This discretion must be exercised in accord with the sentencing guidelines enacted by the New Mexico Legislature.

Sentencing will occur following the preparation of a pre-sentence investigation report. A pre-sentence investigation report is prepared by a court officer who obtains the victim's statement and gathers information on the defendant's criminal history. The victim's statement is your opportunity to tell the judge the injuries you suffered and the crime's affect on your life and finances. The victim's statement must be considered by the court when the defendant is sentenced. As a victim, you have the right to be present at sentencing and address the court.

The trial judge also has the authority to place the defendant on probation. Probation may include supervision by the Adult Probation Office, work release, or a house arrest program. This procedure permits the courts to try to fit the particular punishment to the crime and the defendant.

Can The Defendant Appeal The Conviction?

It is possible that the case in which you testify will be appealed if the defendant is convicted. This is a right guaranteed to the defendant. When the case is tried in district court, the convicted defendant may appeal. There is no trial or testimony during the appeal. The appeal is "on the record" which means the appellate court will consider the transcript of the proceedings at trial.

Will The Defendant Pay Me For The Loss?

A victim may be reimbursed for damages or losses suffered as a result of a crime if the court orders the defendant to make restitution. "Restitution" means the defendant must compensate the victim. To assist the court in determining the amount of restitution, keep any receipts, bills, or estimates regarding the loss.

What If I Need An Interpreter?

Foreign language interpreters and interpreters for the hearing and/or speech impaired are available. If you are in need of interpreting services while testifying, contact the prosecuting attorney.

Will I Be Compensated For My Court Appearance?

Certain restrictions apply to compensation for out of state witnesses. Again, contact the District Attorney's Office for further information.

Am I Eligible For Crime Victim's Compensation?

Victims of violent crime may apply for money under the New Mexico Crime Victims Compensation Program. An application form may be obtained through the District Attorney's Office.

What Happens After The Defendant Is In Prison?

The District Attorney's Office has available forms that notify the New Mexico Parole Board of your address, telephone number, the case number, the county where the offender was convicted, the offender's name, whether or not you wish to be notified if the offender is considered for a pardon, reduced sentence, or parole.

What Victim Services Does The District Attorney's Office Provide?

The Victim Impact Program is designed to help you understand the criminal justice process and your role as a victim or witness. Staff will contact you in an effort to keep you better informed and to notify you of court hearings and other legal proceedings. Additionally victims of child abuse, rape, elder abuse and domestic violence may be eligible for counseling treatment during the court process and after the final disposition.

Do I Have Responsibilities Under This Law?

Yes...To be guaranteed your full rights under the Constitutional Amendment and Bill of Rights, you must:

  • Promptly report the crime to police

  • Cooperate with law enforcement officials investigating the crime.

  • Testify the Defendant's trial.

  • Tell authorities if you address changes.

"Someone I Love Was Murdered"

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