Federal Grand Jury Proceedings Preempt N.M. Rule on Subpoenaing Lawyers

A New Mexico ethics rule limiting the subpoenaing of lawyers is preempted by federal prosecutors’ need for the lawyer as a witness in the grand jury context   

United States v. Supreme Court of N.M., 2016 BL 180748, 10th Cir., No. 14-2037, 6/7/16.

    A Tenth Circuit decision will now preempt an ethics rule in New Mexico that prevents prosecutors from subpoenaing another lawyer to present evidence about a former or current client without an essential need or alternative. The court, however, found that the rule is “an obstacle to the effectuation of the grand jury’s constitutionally authorized investigative functions,” allowing for federal prosecutorial need to preempt the rule in grand jury proceedings.

    New Mexico’s ethics rule, however, is still enforceable in other contexts, but will always be preempted in a grand jury situation.


http://www.bloomberglaw.com/public/document/United_States_v_Supreme_Court_of_NM_No_142037__142049_2016_BL_180

Showing Sexual Messages on Phone Counts as Sending a Message Under Statute

Man convicted of criminal sexual communication with a child by showing explicit images through handing phone over to a child to directly show the explicit pictures

State v. Tufts, 2016 BL 175227, N.M., No. S-1-SC-35255, 6/2/16.

    The New Mexico Supreme Court found that a man “sent” sexually explicit images to a child by directly showing pictures on his phone to the child. Initially, the trial court convicted the man for sexual communication with a child, but was later reversed by the appellate court over its interpretation of “to send.” On appeal, however, the New Mexico Supreme Court looked at the intent of the statute, finding that it was created to protect children from obscene images produced, stored, or distributed on an electronic device. They noted, that while a third-party carrier may be involved, communication can “occur by delivering the electronic communication device containing the obscene images of the defendant directly to the child.” Moreover, the court concluded “Whether a digital camera, a video recorder, or a cell phone is handed directly to a child or an image is electronically transmitted to one of those devices, the effect of the conduct and the resulting harm to the child—access to obscene electronically generated images via an electronic communication device—is the same.”

http://www.bloomberglaw.com/public/document/State_v_Tufts_No_S1SC35255_2016_BL_175227_NM_June_02_2016_Court_O