NM · rules

N.M. Sup. Ct. Order No. S-1-AO-2025-00013 (amended) Q

Judicial discretion; disqualification and excusal

activein force · 2010-12-10 – presentact-effective-date

Action by any court on any 13

matter relating to pretrial release shall not preclude the subsequent statutory disqualifica tion of a 14

judge. A judge may not be excused from setting initial conditions of release unless the judge is 15

required to recuse under the provisions of the New Mexico Constitution or the Code of Judicial 16

Conduct. 17

[As amended, effective August 1, 1987; October 1, 1987; September 1, 1990; December 1, 1990; 18

as amended by Supreme Court Order No. 07-8300, effective January 22, 2008; by Supreme Court 19

Order No. 08-8300-044, effective December 31, 2008; as amended by Supreme Court Order No. 20

17-8300-005, effective for all cases pending or filed on or after July 1, 2017; as amended by 21

Supreme Court Order No. 22- 8300-015, effective for all cases pending or filed on or after 22

December 31, 2022; as amended by Supreme Court Order No. S -1-RCR-2023-00021, effective 23

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for all cases pending or filed on or after December 31, 2023; as amended by Supreme Court Order 1

No. S-1-RCR-2024-00068, effective for all cases pending or filed on or after May 8, 2024; as 2

provisionally amended by Supreme Court Order No. S-1-AO-2025-00013, effective for all cases 3

pending or filed on or after July 29, 2025.] 4

Committee commentary. — This rule provides “the mechanism through which a person 5

may effectuate the right to pretrial release afforded by Article II, Section 13 of the New Mexico 6

Constitution.” State v. Brown, 2014-NMSC-038, ¶ 37, 338 P.3d 1276. In 2016, Article II, Section 7

13 was amended (1) to permit a court of record to order the detention of a felony defendant pending 8

trial if the prosecutor proves by clear and convincing evidence that the defen dant poses a danger 9

to the safety of any other person or the community and that no release condition or combination 10

of conditions will reasonably ensure the safety of any other person or the community, and (2) to 11

require the pretrial release of a defendant who is in custody solely because of financial inability to 12

post a secured bond. This rule was derived from the federal statute governing the release or 13

detention of a defendant pending trial. See 18 U.S.C. § 3142. This rule was amended in 2017 to 14

implement the 2016 amendment to Article II, Section 13 and the Supreme Court’s holding 15

in Brown, 2014-NMSC-038. Corresponding rules are located in the Rules of Criminal Procedure 16

for the District Courts, see Rule 5-401 NMRA, the Rules of Criminal Procedure for the 17

Metropolitan Courts, see Rule 7-401 NMRA, and the Rules of Procedure for the Municipal 18

Courts, see Rule 8-401 NMRA. 19

Time periods specified in this rule are computed in accordance with Rule 6-104 NMRA. 20

Just as assistance of counsel is required at a detenti on hearing under Rule 5-409 NMRA 21

that may result in a denial of pretrial release based on dangerousness, Subparagraphs (A)(2), 22

(H)(2), and (H)(3) of this rule provide that assistance of counsel is required in a proceeding that 23

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may result in denial of pretr ial release based on reasons that do not involve dangerousness, such 1

as a simple inability to meet a financial condition. 2

As set forth in Paragraph B, a defendant is entitled to release on personal recognizance or 3

unsecured bond unless the court determines that a release, in addition to any non-monetary 4

conditions of release under Paragraph D, will not reasonably ensure the appearance of the 5

defendant and the safety of any other person or the community. 6

Paragraph C lists the factors the court should conside r when determining conditions of 7

release. In all cases, the court is required to consider any available results of a pretrial risk 8

assessment instrument approved by the Supreme Court for use in the jurisdiction and the financial 9

resources of the defendant. 10

Paragraph D lists various non-monetary conditions of release. The court must impose the 11

least restrictive condition, or combination of conditions, that will reasonably ensure the appearance 12

of the defendant as required and the safety of any other person a nd the community. See 13

Brown, 2014-NMSC-038, ¶¶ 1, 37, 39. If the defendant has previously been released on standard 14

conditions before a court appearance, the judge should review the conditions at the defendant’s 15

first appearance to determine whether any particularized conditions should be imposed under the 16

circumstances of the case. 17

Paragraph D also permits the court to impose non-monetary conditions of release to ensure 18

the orderly administration of justice. This provision was derived from the American Bar 19

Association, ABA Standards for Criminal Justice: Pretrial Release, Standard 10-5.2 (3d ed. 2007). 20

Some conditions of release may have a cost associated with the condition. The court should make 21

a determination about whether the defendant can afford to pay all or a part of the cost, or whether 22

the court has the authority to waive the cost, because detaining a defendant because of inability to 23

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pay the cost associated with a condition of release is comparable to detaining a defendant because 1

of financial inability to post a secured bond. 2

As set forth in Paragraph E, the only purpose for which the court may impose a secured 3

bond is to ensure that the defendant will appear for trial and other pretrial proceedings for which 4

the defendant must be present. See Stat e v. Ericksons, 1987-NMSC-108, ¶ 6, 106 N.M. 567, 746 5

P.2d 1099 (“[T]he purpose of bail is to secure the defendant’s attendance to submit to the 6

punishment to be imposed by the court.”); see also NMSA 1978, § 31- 3-2(B)(2) (1993) 7

(authorizing the forfeiture of bond on the defendant’s failure to appear). 8

The 2017 amendments to this rule clarify that the amount of secured bond must not be 9

based on a bond schedule, i.e., a predetermined schedule of monetary amounts fixed according to 10

the nature of the charge. I nstead, the court must consider the individual defendant’s financial 11

resources and must set secured bond at the lowest amount that will reasonably ensure the 12

defendant’s appearance in court after the defendant is released. 13

Secured bond cannot be used for t he purpose of detaining a defendant who may pose a 14

danger to the safety of any other person or the community. See Brown, 2014-NMSC-038, ¶ 53 15

(“Neither the New Mexico Constitution nor our rules of criminal procedure permit a judge to set 16

high bail for the purpose of preventing a defendant’s pretrial release.”); see also Stack v. Boyle, 17

342 U.S. 1, 5 (1951) (stating that secured bond set higher than the amount reasonably calculated 18

to ensure the defendant’s appearance in court “is ‘excessive’ under the Eighth Amendment”). A 19

felony defendant who poses a danger that cannot be mitigated through the imposition of non-20

monetary conditions of release under Paragraph D of this rule should be detained under Article II, 21

Section 13 of the New Mexico Constitution and Rule 5-409 NMRA. 22

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The court should consider the authorized types of secured bonds in the order of priority set 1

forth in Paragraph E. The court must first consider requiring an appearance bond secured by a cash 2

deposit of ten percent (10%). No other percentage is permitted under the rule. If a cash deposit of 3

ten percent (10%) is inadequate, the court then must consider a property bond involving property 4

that belongs to the defendant or other unpaid surety. If neither of these options is sufficient to 5

reasonably ensure the defendant’s appearance, the court may require a cash or surety bond for the 6

defendant’s release. If the court requires a cash or surety bond, the defendant has the option either 7

to execute an appearance bond and deposit one hundred percent (100%) of the amount of the bond 8

with the court or to purchase a bond from a paid surety. Under Subparagraph (E)(2)(c), the 9

defendant alone has the choice to post the bond by a one hundred percent (100%) cash deposit or 10

a surety. The court does not have the option to set a cash-only bond or a surety-only bond; it must 11

give the defendant the choice of either. A paid surety may execute a surety bond or a real or 12

personal property bond only if the conditions of Rule 6-401.2 NMRA are met. 13

Paragraph F governs the contents of an order setting conditions of release. See Form 9-14

303 NMRA (order setting conditions of release). Although pretrial release hearings are not 15

required to be a matter of record in the magistrate court, Paragraph F requires the court to make 16

written findings justifying the imposition of a secured bond. Judges are encouraged to enter their 17

written findings on the order setting conditions of release at the conclusion of the hearing. If more 18

detailed findings are necessary, the judge should make the supplemental findings in a separate 19

document within two (2) days of the conclusion of the hearing. 20

Paragraph G addresses pretrial detention of a dangerous defendant under Article II, Section 21

13 of the New Mexico Constitution. If the defendant poses a danger t o the safety of any other 22

person or the community that cannot be addressed through the imposition of non- monetary 23

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conditions of release, the prosecutor may file a motion for pretrial detention. If the prosecutor files 1

a motion for pretrial detention, the magistrate court must follow the procedures set forth in Rule 6-2

409 NMRA. 3

Paragraph H sets forth the procedure for review of the defendant’s conditions of release in 4

the magistrate court. Paragraph J sets forth the procedure for the defendant to petition the district 5

court for release or for review of the conditions of release set by the magistrate court. Article II, 6

Section 13 of the New Mexico Constitution requires the court to rule on a motion or petition for 7

pretrial release “in an expedited manner” and to release a defendant who is being held solely 8

because of financial inability to post a secured bond. A defendant who wishes to present financial 9

information to a court to support a motion or a petition for pretrial release may present Form 9-10

301A NMRA (pretrial release financial affidavit) to the court. The defendant shall be entitled to 11

appear and participate personally with counsel before the judge conducting any hearing to review 12

the conditions of release, rather than by any means of remote electronic conferencing. 13

Paragraph K requires the magistrate court to prioritize the scheduling of trial and other 14

proceedings for cases in which the defendant is held in custody because of inability to post bond 15

or meet the conditions of release. See generally United States v. Salerno, 481 U.S. 739, 747 (1987) 16

(concluding that the detention provisions in the Bail Reform Act, 18 U.S.C. § 3142, did not violate 17

due process, in part because of “the stringent time limitations of the Speedy Trial Act,” 18 U.S.C. 18

§ 3161); Am. Bar Ass’n, ABA Standards for Criminal Justice: Pretrial Release, Standard 10-5.11 19

(3d ed. 2007) (“Every jurisdiction should establish, by statute or court rule, accelerated time limits 20

within which detained defendants should be tried consistent with the sound administration of 21

justice.”). This rule does not preclude earlier or more regular status review hearings. The purpose 22

of the hearing is to determine how best to expedite a trial in the case. A meaningful review of the 23

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progress of the case includes assessment of the parties’ compliance with applicable deadlines, 1

satisfaction of discovery obligations, and witness availability, among other matters. If the court 2

determines that the parties have made insufficient progress on these measures, then it shall issue 3

an appropriate scheduling order. 4

Under NMSA 1978, Section 31-3-1 (1972), the court may appoint a designee to carry out 5

the provisions of this rule. As set forth in Paragraph M, a designee must be designated by the 6

presiding magistrate court judge in a written court order. A person may not be appointed as a 7

designee if that person is related within the second degree of blood or marriage to a paid surety 8

licensed in this state to execute bail bonds. A jailer may be appointed as a designee. Paragraph M 9

and Rule 6-408 NMRA govern the limited circumstances under which a designee shall release an 10

arrested defendant from custody before that defendant’s first appearance before a judge. 11

Paragraph N requires the magistrate court to transfer any bond to the district court on notice 12

from the district attorney that an information or indictment has been filed. See Rule 6-202(E)-(F) 13

NMRA (requiring the district attorney to notify the magistrate court of the filing of an information 14

or indictment in the district court). 15

Paragraph O of this rule dovetails with Rule 11- 1101(D)(3)(e) NMRA. Both provide that 16

the Rules of Evidence do not apply to proceedings in the magistrate court with respect to matters 17

of pretrial release. As with courts in other types of proceedings in which the Rules of Evidence do 18

not apply, a court presiding over a pretrial release hearing is responsible “for assessing the 19

reliability and accuracy” of the information presented. See United States v. Martir, 782 F.2d 1141, 20

1145 (2d Cir. 1986) (explaining that in a pretrial detention hearing the judge “retains the 21

responsibility for assessing the reliability and accuracy of the government’s information, whether 22

presented by proffer or by direct proof”); see also United States v. Marshall, 519 F. Supp. 751, 23

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754 (E.D. Wis. 1981) (“So long as the information which the sentencing judge considers has 1

sufficient indicia of reliability to support its probable accuracy, the information may properly be 2

taken into account in passing sentence.”), aff’d, 719 F.2d 887 ( 7th Cir. 1983); State v. 3

Guthrie, 2011-NMSC-014, ¶¶ 36- 39, 43, 150 N.M. 84, 257 P.3d 904 (explaining that in a 4

probation revocation hearing, the court should focus on the reliability of the evidence). 5

Consistent with Rule 6-106 NMRA, a party cannot exercise the statutory right to excuse a 6

judge who is setting initial conditions of release. See NMSA 1978, § 35-3-7 (1983). Paragraph Q 7

of this rule does not prevent a judge from filing a recusal either on the court’s own motion or 8

motion of a party. See N.M. Const. art. VI, § 18; Rule 21-211 NMRA. 9

[Adopted by Supreme Court Order No. 17-8300-005, effective for all cases pending or filed on or 10

after July 1, 2017; as amended by Supreme Court Order No. 22- 8300-015, effective for all cases 11

pending or filed on or afte r December 31, 2022; as amended by Supreme Court Order No. S -1-12

RCR-2024-00068, effective for all cases pending or filed on or after May 8, 2024.] 13

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6-403. Revocation or modification of release orders. 1

A. Scope. In accordance with this rule, the court may consider revocation of the 2

defendant’s pretrial release or modification of the defendant’s conditions of release 3

(1) if the defendant is alleged to have violated a condition of release; or 4

(2) to prevent interference with witnesses or the proper administration of 5

justice. 6

B. Revocation or modification of conditions of release. 7

(1) The court shall consider revocation of the defendant’s pretrial release or 8

modification of the defendant’s conditions of release on motion of the prosecutor, on notice of a 9

non-technical violation of a condition of release by a court pretr ial services agency, or on the 10

court’s own motion. 11

(2) The defendant may file a response to the motion, but the filing of a response 12

shall not delay any hearing under Paragraph D [or E] of this rule. 13

C. Issuance of summons or bench warrant; temporary detention of certain 14

defendants. 15

(1) On motion or notice of a non-technical violation of a condition of release by 16

a court pretrial services agency, the court shall enter an order with specific findings about why 17

amended or revoked conditions of release are unnecessary, or the court shall issue a summons and 18

notice of hearing, unless the court finds that the interests of justice may be better served by the 19

issuance of a bench warrant. The summons or bench warrant shall include notice of the reasons 20

for the review of the pretrial release decision. 21

(2) A defendant previously released by any court in this state pending any 22

felony charge or pending a charge for an enumerated misdemeanor, who is arrested and charged 23

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with a new felony or new enumerated misdemeanor defined in Rule 5-403.1 NMRA alleged to 1

have occurred during the period of initial release, shall be held without conditions of release 2

pending [an initial] a hearing pursuant to Paragraph D of this rule. The [initial] hearing required 3

by Paragraph D shall be conducted by the court with current jurisdiction over the defendant’s 4

initial conditions of release. 5

(3) A defendant previously released by any court in this state pending any 6

felony charge or pending a charge for an enumerated misd emeanor defined in Rule 5-7

403.1 NMRA, who is charged but not arrested for a new felony or new enumerated misdemeanor 8

alleged to have occurred during the period of initial release, shall be summonsed by the court with 9

current jurisdiction over the defendant’s initial conditions of release to [an initial] a hearing 10

required by Paragraph D of this rule, unless the court finds that the interests of justice may be 11

better served by the issuance of a bench warrant. The [initial] hearing required by Paragraph D 12

shall be conducted by the court with current jurisdiction over the defendant’s initial conditions of 13

release. 14

[D. Initial hearing. 15

(1) The court shall hold an initial hearing as soon as practicable. If the defendant 16

is in custody, the hearing shall be held no later than three (3) days after the defendant is detained 17

if the defendant is being held in the local detention center, or no later than five (5) days after the 18

defendant is detained if the defendant is not being held in the local detention center. If the 19

defendant is not in custody, the hearing shall be held no later than ten (10) days after the motion 20

or notice of alleged violation is filed. 21

(2) At the initial hearing, the court may continue the existing conditions of 22

release, set different conditions of release, or if the court is considering revocation of release, the 23

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court shall schedule an evidentiary hearing under Paragraph E of this rule, unless waived by the 1

defendant. 2

(3) If at the conclusion of the initial hearing, the court continues or amends the 3

defendant’s conditions of release, then a written order continuing or amending the defendant’s 4

conditions of release shall be provided to the defendant at the time of release from custody if the 5

defendant is in custody, or within three (3) days of the hearing if the defendant is not in custody. 6

If the defendant waives the evidentiary hearing under Paragraph E and the court finds that the 7

conditions of release should be revoked, an order revoking conditions of release, including written 8

findings of the individualized facts justifying revocation, shall be filed within three (3) days of the 9

initial hearing.] 10

[E.] D. [Evidentiary hearing.] Hearing on alleged violation. 11

(1) Time. [The evidentiary] A hearing shall be held as soon as practicable. If 12

the defendant is in custody, the [evidentiary] hearing shall be held no later than [seven (7)] five (5) 13

days after the [initial hearing] defendant is detained. If the defendant is not in custody, the 14

[evidentiary] hearing shall be held no later than ten (10) days after the [initial hearing] motion or 15

notice of alleged violation is filed. 16

(2) At the hearing, the court may continue the existing conditions of release, set 17

different conditions of release, or if the court is considering revocation of release, the court shall 18

conduct an evidentiary hearing, unless waived by the defendant. 19

[(2)] (3) Defendant’s rights. The defendant has the right to be present and to be 20

represented by counsel and, if financially unable to obtain counsel, to have counsel appointed. 21

[The] If the court is considering revocation of release and an evidentiary hearing is conducted, the 22

defendant shall be afforded an opportunity to testify, to present witnesses, to compel the attendance 23

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of witnesses, to cross-examine witnesses who appear at the hearing, and to present information by 1

proffer or otherwise. If the defendant testifies at the hearin g, the defendant’s testimony shall not 2

be used against the defendant at trial except for impeachment purposes or in a subsequent 3

prosecution for perjury. 4

[F.] E. Order at completion of [evidentiary] hearing. 5

(1) If at the conclusion of the hearing, the court continues or amends the 6

defendant’s conditions of release, then a written order continuing or amending the defendant’s 7

conditions of release shall be provided to the defendant at the time of the release from custody if 8

the defendant is in custody, or within three (3) days of the hearing if the defendant is not in custody. 9

(2) If the defendant waives an evidentiary hearing and the court finds that the 10

conditions of release should be revoked, an order revoking conditions of release, including written 11

findings of the individualized facts justifying revocation, shall be filed within three (3) days of the 12

hearing. 13

(3) If an evidentiary hearing is conducted, at [At] the completion of [an] the 14

evidentiary hearing, the court shall determine whether the defendant has violated a condition of 15

release or whether revocation of the defendant’s release is necessary to prevent interference with 16

witnesses or the proper administration of justice, and may: 17

[(1)] (a) continue the existing conditions of release; 18

[(2)] (b) set new or additional conditions of release in accordance with 19

Rule 6-401 NMRA; or 20

[(3)] (c) revoke the defendant’s release, if the court 21

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[(a)] (i) finds either probable cause to believe that the defendant 1

committed a federal, state, or l ocal crime while on release, or clear and convincing evidence that 2

the defendant has willfully violated any other condition of release; and 3

[(i) probable cause to believe that the defendant committed a 4

federal, state, or local crime while on release; or 5

(ii) clear and convincing evidence that the defendant has 6

willfully violated any other condition of release; and] 7

[(b)] (ii) finds clear and convincing evidence that either no condition 8

or combination of conditions will reasonably ensure the defendant’s compliance with the release 9

conditions ordered by the court, or revocation of the defendant’s release is necessary to prevent 10

interference with witnesses or the proper administration of justice. 11

[(i) no condition or combination of condit ions will reasonably 12

ensure the defendant’s compliance with the release conditions ordered by the court; or 13

(ii) revocation of the defendant’s release is necessary to prevent 14

interference with witnesses or the proper administration of justice.] 15

(4) [An] If the court revokes conditions of release after an evidentiary hearing, 16

an order revoking release shall include written findings of the individualized facts justifying 17

revocation and shall be filed within three (3) days of the evidentiary hearing. 18

(5) If the court continues or amends the defendant’s conditions of release after 19

an evidentiary hearing, then a written order continuing or amending the defendant’s conditions of 20

release shall be provided to the defendant at the time of release from custody if the defendant is in 21

custody, or within three (3) days of the hearing if the defendant is not in custody. 22

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[G.] F. Evidence. The New Mexico Rules of Evidence shall not apply to the presentation 1

and consideration of information at [any] a hearing under this rule. 2

[H.] G. Review of conditions. If the magistrate court enters an order setting new or 3

additional conditions of release and the defendant is detained or continues to be detained because 4

of a failure to meet a condition imposed, or i s subject to a requirement to return to custody after 5

specified hours, the defendant may petition the district court for review in accordance with Rule 6-6

401(J) NMRA. The defendant may petition the district court immediately on the issuance of the 7

magistrate court order and shall not be required to first seek review or reconsideration by the 8

magistrate court. If, on disposition of the petition by the district court, the defendant is detained or 9

continues to be detained because of a failure to meet a conditi on imposed, or is subject to a 10

requirement to return to custody after specified hours, the defendant may appeal in accordance 11

with Rule 5-405 NMRA and Rule 12-204 NMRA. 12

[I.] H. Expedited trial scheduling for defendant in custody. The magistrate court shall 13

provide expedited priority scheduling in a case in which the defendant is detained pending trial. 14

The court shall hold a status review hearing in any case in which the defendant has been held for 15

more than sixty (60) days. The purpose of the status review hearing is to conduct a meaningful 16

review of the progress of the case. If the court determines that insufficient progress has been made, 17

then the court shall issue an appropriate scheduling order. 18

[J.] I. Petition to district court for review of revocatio n order. If the magistrate court 19

issues an order revoking the defendant’s release, the defendant may petition the district court for 20

review under this paragraph and Rule 5-403(K) NMRA. 21

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(1) Petition; requirements. The petition shall include the specif ic facts that 1

warrant review by the district court and may include a request for a hearing. The petitioner shall 2

promptly 3

(a) file a copy of the district court petition in the magistrate court; 4

(b) serve a copy on the district attorney; and 5

(2) Magistrate court’s jurisdiction pending determination of the petition. On 7

the filing of the petition, the magistrate court’s jurisdiction to set or amend conditions of release 8

shall be suspended pending determination of the petition by the district court. The magistrate court 9

shall retain jurisdiction over all other aspects of the case, and the case shall proceed in the 10

magistrate court while the petition is pending. 11

(3) District court review. The d istrict court shall rule on the petition in an 12

expedited manner. 13

(a) Within three (3) days after the petition is filed, the district court shall 14

take one of the following actions: 15

(i) issue an order affirming the revocation order; or 16

(ii) set a hearing to be held within ten (10) days after the filing 17

of the petition and promptly send a copy of the notice to the magistrate court. 18

(b) If the district court holds a hearing on the petition, at the conclusion 19

of the hearing the court shall issue either an order affirming the revocation order or an order setting 20

conditions of release under Rule 5-401 NMRA. 21

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(4) District court order; transmission to magistrate court. The district court 1

shall promptly send the order to the magistrate court, and jurisdiction over the conditions of release 2

shall revert to the magistrate court. 3

(5) Appeal. If the district court affirms the revocation order, the defendant may 4

appeal in accordance with Rule 5-405 NMRA and Rule 12-204 NMRA. 5

[As amended, effective September 1, 1990; as amended by Supreme Court Order No. 08-8300-6

044, effective December 31, 2008; as amended by Supreme Court Order No. 17- 8300-005, 7

effective for all cases pending or filed on or after July 1, 2017; as amended by Supreme Court 8

Order No. 18-8300-024, effective for all cases pending or filed on or after February 1, 2019; as 9

amended by Supreme Court Order No. 22-8300-015, effective for all cases pending or filed on or 10

after December 31, 2022; as amended by Supreme Court Order No. S -1-RCR-2024-00068, 11

effective for all cases pending or filed on or after May 8, 2024; as provisionally amended by 12

Supreme Court Order No. S-1-AO-2025-00013, effective for all cases pending or filed on or after 13

July 29, 2025.] 14

Committee commentary. — The 2017 amendments to this rule clarify the procedure for 15

the court to follow when considering revocation of the defendant’s pretrial release or modification 16

of the defendant’s conditions of release for violating the conditions of release. In State v. 17

Segura, 2014-NMCA-037, ¶¶ 1, 24- 25, 321 P.3d 140, overruled on other grounds by State v. 18

Ameer, 2018-NMSC-030, ¶ 69, 458 P.3d 390, the Court of Appeals held that due process requires 19

courts to afford the defendant notice and an opportunity to be heard before the court may revoke 20

the defendant’s bail and remand the defendant into custody. See also Tijerina v. Baker, 1968-21

NMSC-009, ¶ 9, 78 N.M. 770, 438 P.2d 514 (explaining that the right to bail is not absolute); id. 22

¶ 10 (“If the court has inherent power to revoke bail of a defendant during trial and pending final 23

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disposition of the criminal case in order to prevent interference with witnesses or the proper 1

administration of justice, the right to do so before trial seems to be equally apparent under a proper 2

set of facts.”); State v. Rivera, 2003-NMCA-059, ¶ 20, 133 N.M. 571, 66 P.3d 344 (“Conditions 3

of release are separate, coercive powers of a court, apart from the bond itself. They are enforceable 4

by immediate arrest, revocation, or modification if violated. Such condition s of release are 5

intended to protect the public and keep the defendant in line.”), rev’d on other grounds, 2004-6

NMSC-001, 134 N.M. 768, 82 P.3d 939. 7

[As used in Paragraph D, a “local detention center” is “one that is commonly used by the 8

magistrate court i n the normal course of business and not necessarily within the territorial 9

jurisdiction of the court.” Rule 6-401(A)(3) NMRA.] 10

Paragraph [G] F provides that the New Mexico Rules of Evidence do not apply at a 11

revocation hearing, consistent with Rule 11- 1101(D)(3)(e) NMRA. As with courts in other types 12

of proceedings in which the Rules of Evidence do not apply, a court presiding over a pretrial 13

detention hearing is responsible “for assessing the reliability and accuracy” of the information 14

presented. See United States v. Martir, 782 F.2d 1141, 1145 (2d Cir. 1986) (explaining that in a 15

pretrial detention hearing the judge “retains the responsibility for assessing the reliability and 16

accuracy of the government’s information, whether presented by proffer or by direct proof”); State 17

v. Ingram, 155 A.3d 597 (N.J. Super. Ct. App. Div. 2017) (holding that it is within the discretion 18

of the detention hearing court to determine whether a pretrial detention order may be supported in 19

an individual case by documentary evidence, proffer, one or more live witnesses, or other forms 20

of information the court deems sufficient); see also United States v. Marshall, 519 F. Supp. 751, 21

754 (E.D. Wis. 1981) (“So long as the information which the sentencing judge considers has 22

sufficient indicia of reliability to support its probable accuracy, the information may properly be 23

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taken into account in passing sentence.”), aff’d, 719 F.2d 887 (7th Cir. 1983); State v. 1

Guthrie, 2011-NMSC-014, ¶¶ 36- 39, 43, 150 N.M. 84, 257 P.3d 904 (explaining that in a 2

probation revocation hearing, the court should focus on the reliability of the evidence); State v. 3

Vigil, 1982-NMCA-058, ¶ 24, 97 N.M. 749, 643 P.2d 618 (holding in a probation revocation 4

hearing that hearsay untested for accuracy or reliability lacked probative value). 5

Paragraph [I] H requires the magistrate court to prioritize the scheduling of trial and other 6

proceedings for cases in which the defendant is held in custody. See generally United States v. 7

Salerno, 481 U.S. 739, 747 (1987) (concluding that the detention provisions in the Bail Reform 8

Act, 18 U.S.C. § 3142, did not violate due process, in part because of “the stringent time limitations 9

of the Speedy Trial Act,” 18 U.S.C. § 3161); Am. Bar Ass’n, ABA Standards for Criminal Justice: 10

Pretrial Release, Standard 10-5.11 (3d ed. 2007) (“Every jurisdiction should establish, by statute 11

or court rule, accelerated time limitations within which detained defendants should be tried 12

consistent with the sound administration of justice.”). This rule does not preclude earlier or more 13

regular status review hearings. The purpose of the hearing is to determine how best to expedite a 14

trial in the case. A meaningful review of the progress of the case includes assessment of the parties’ 15

compliance with applic able deadlines, satisfaction of discovery obligations, and witness 16

availability, among other matters. If the court determines that the parties have made insufficient 17

progress on these measures, then it shall issue an appropriate scheduling order. 18

[Adopted by Supreme Court Order No. 17-8300-005, effective for all cases pending or filed on or 19

after July 1, 2017; as amended by Supreme Court Order No. 22- 8300-015, effective for all cases 20

pending or filed on or after December 31, 2022; as amended by Supreme Cour t Order No. S -1-21

RCR-2023-00021, effective for all cases pending or filed on or after December 31, 2023; as 22

MAGISTRATE COURT CRIMINAL Supreme Court Approved

RULE 6-403 July 29, 2025

1 provisionally amended by Supreme Court Order No. S-1-AO-2025-00013, effective for all cases

2 pending or filed on or after July 29, 2025.]

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7-401. Pretrial release. 1

A. Hearing. 2

(1) Time. The court shall conduct a hearing under this rule and issue an order 3

setting conditions of release as soon as practicable, but in no event later than 4

(a) if the defendant remains in custody, three (3) days after the date of 5

arrest if the defendant is being held in the local detention center, or five (5) days after the date of 6

arrest if the defendant is not being held in the local detention center; 7

(b) first appearance or arraignment, if the defendant is not in custody; 8

or 9

403(D) NMRA, then within three (3) days after a temporary detention order is placed or the date 11

of the [initial] hearing conducted under Rule 7-403 NMRA if the defendant is being held in the 12

local detention center, or five (5) days after the date of the [initial] hearing conducted under Rule 7-13

403 NMRA if the defendant is not being held in the local detention center. 14

(2) Right to counsel. If the defendant does not have counsel at the initial release 15

conditions hearing and is not ordered released at the hearing, the matter shall be continued for no 16

longer than three (3) additional days for a further hearing to review conditions of release, at which 17

the defendant shall have the right to assistance of retained or appointed counsel. 18

(3) Local detention center; defined. A “local detention center” is one that is 19

commonly used by the metropolitan court in the normal course of business and not necessarily 20

within the territorial jurisdiction of the court. 21

B. Right to pretrial release; recognizance or unsecured appearance bond. Any 22

defendant eligible for pretrial release under Article II, Section 13 o f the New Mexico 23

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Constitution shall be ordered released pending trial on the defendant’s personal recognizance or 1

on the execution of an unsecured appearance bond in an amount set by the court. The court may 2

impose non-monetary conditions of release under Paragraph D of this rule, but the court shall 3

impose the least restrictive condition or combination of conditions that will reasonably ensure the 4

appearance of the defendant as required and the safety of any other person or the community. The 5

court may order execution of a secured appearance bond only if the court makes written findings 6

of particularized reasons why the release will not reasonably ensure the appearance of the 7

defendant as required under Paragraphs E and F of this rule. 8

C. Factors to be cons idered in determining conditions of release. In determining 9

the least restrictive conditions of release that will reasonably ensure the appearance of the 10

defendant as required and the safety of any other person and the community, the court shall 11

consider any available results of a pretrial risk assessment instrument approved by the Supreme 12

Court for use in the jurisdiction and the financial resources of the defendant. In addition, the court 13

may take into account the available information about 14

(1) the nature and circumstances of the offense charged, including whether the 15

offense is a crime of violence or involves alcohol or drugs; 16

(2) the weight of the evidence against the defendant; 17

(3) the history and characteristics of the defendant, including 18

(a) the defendant’s character, physical and mental condition, family 19

ties, employment, past and present residences, length of residence in the community, community 20

ties, past conduct, history relating to drug or alcohol abuse, criminal history, and record about 21

appearance at court proceedings; and 22

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RULE 7-401 July 29, 2025

1 (b) whether, at the time of the current offense or arrest, the defendant

2 was on probation, on parole, or on other release pending trial, sentencing, or appeal for any offense

3 under federal, state, or local law;

4 (4) the nature and seriousness of the danger to any person or the community

5 that would be posed by the defendant’s release;

6 (5) any other facts tending to indicate the defendant may or may not be likely

7 to appear as required; and

8 (6) any other facts tending to indicate the defendant may or may not commit

9 new crimes if released.

10 D. Non-monetary conditions of release. In its order setting conditions of release, the

11 court shall impose a standard condition that the defendant not commit a federal, state, or local

12 crime during the period of release. The court may also impose the least restrictive particularized

13 condition, or combination of particularized conditions, that the court finds will reasonably ensure

14 the appearance of the defendant as required, the safety of any other person and the community,

15 and the orderly administration of justice, which may include the condition that the defendant

16 (1) remain in the custody of a designated person who agrees to assume

17 supervision and to report any violation of a release condition to the court, if the designated person

18 is able reasonably to assure the court that the defendant will appear as required and will not pose

19 a danger to the safety of any other person or the community;

20 (2) maintain employment, or, if unemployed, actively seek employment;

21 (3) maintain or commence an educational program;

22 (4) abide by specified restrictions on personal associations, place of abode, or

23 travel;

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(5) avoid all contact with an alleged vi ctim of the crime or with a potential 1

witness who may testify about the offense; 2

(6) report on a regular basis to a designated pretrial services agency or other 3

agency agreeing to supervise the defendant; 4

(7) comply with a specified curfew; 5

(8) refrain from possessing a firearm, destructive device, or other dangerous 6

weapon; 7

(9) from any use of alcohol or any use of an illegal drug or other controlled 8

substance without a prescription by a licensed medical practitioner; 9

(10) refrain from any use of cannabis, cannabis products, or synthetic 10

cannabinoids without a certification from a licensed medical practitioner; 11

(11) submit to a drug test or an alcohol test on request of a person designated by 12

the court; 13

(12) return to cus tody for specified hours after release for employment, 14

schooling, or other limited purposes; and 15

(13) satisfy any other condition that is reasonably necessary to ensure the 16

appearance of the defendant as required and the safety of any other person and the community. 17

E. Secured bond. If the court makes written findings of the particularized reasons 18

why release on personal recognizance or unsecured appearance bond, in addition to any non-19

monetary conditions of release, will not reasonably ensure the appea rance of the defendant as 20

required, the court may require a secured bond for the defendant’s release. 21

(1) Factors to be considered in setting secured bond. 22

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(a) In determining whether any secured bond is necessary, the court 1

may consider any facts tending to indicate that the particular defendant may or may not be likely 2

to appear as required. 3

(b) The court shall set secured bond at the lowest amount necessary to 4

reasonably ensure the defendant’s appearance and with regard to the defendant’s financial ability 5

to secure a bond. 6

for the purpose of detaining a defendant who is otherwise eligible for pretrial release. 8

(d) Secured bond shall not be set by reference to a predetermined 9

schedule of monetary amounts fixed according to the nature of the charge. 10

(2) Types of secured bond. If a secured bond is determined necessary in a 11

particular case, the court shall impose the first of the following types of secured bond that will 12

reasonably ensure the appearance of the defendant. 13

(a) Percentage bond. The court may require a secured appearance bond 14

executed by the defendant in the full amount specified in the order setting conditions of release, 15

secured by a deposit in cash of ten perc ent (10%) of the amount specified. The deposit may be 16

returned as provided in Paragraph L of this rule. 17

(b) Property bond. The court may require the execution of a property 18

bond by the defendant or by unpaid sureties in the full amount specified in the order setting 19

conditions of release, secured by the pledging of real property in accordance with Rule 7-20

401.1 NMRA. 21

of either 23

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1 (i) a secured appearance bond executed by the defendant in the

2 full amount specified in the order setting conditions of release, secured by a deposit in cash of one

3 hundred percent (100%) of the amount specified, which may be returned as provided in Paragraph

4 L of this rule, or

5 (ii) a surety bond executed by licensed sureties in accordance

6 with Rule 7-401.2 NMRA for one hundred percent (100%) of the full amount specified in the order

7 setting conditions of release.

8 F. Order setting conditions of release; findings about secured bond.

9 (1) Contents of order setting conditions of release. The written order setting

10 conditions of release shall be provided to the defendant before release if the defendant is in custody

11 or within three (3) days of the conditions of release hearing if the defendant is not in custody, and

12 (a) include a written statement that sets forth all the conditions to which

13 the release is subject, in a manner sufficiently clear and specific to serve as a guide for the

14 defendant’s conduct; and

15 (b) advise the defendant of

16 (i) the penalties for violating a condition of release, including

17 the penalties for committing an offense while on pretrial release;

18 (ii) the consequences for violating a condition of release,

19 including the immediate issuance of a warrant for the defendant’s arrest, revocation of pretrial

20 release, and forfeiture of bond; and

21 (iii) the consequences of intimidating a witness, victim, or

22 informant, or otherwise obstructing justice.

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(2) Written findings about secured bond. The court shall file w ritten findings 1

of the individualized facts justifying a secured bond as soon as possible, but no later than two (2) 2

days after the conclusion of the hearing. 3

G. Pretrial detention. If the prosecutor files a motion for pretrial detention, the court 4

shall follow the procedures set forth in Rule 7-409 NMRA. 5

H. Review of conditions of release by the metropolitan court. 6

(1) Review. If the metropolitan court requires a secured bond for the 7

defendant’s release under Paragraph E of this rule or imposes non-monetary conditions of release 8

under Paragraph D of this rule, and the defendant remains in custody twenty-four (24) hours after 9

the issuance of the order setting conditions of release as a result of the defendant’s inability to post 10

the secured bond or mee t the conditions of release in the present case, the defendant shall be 11

entitled to a hearing to review the conditions of release. 12

(2) Review hearing. The metropolitan court shall hold a hearing in an expedited 13

manner, but in no event later than five (5) days after the initial conditions of release hearing. The 14

defendant shall have the right to assistance of retained or appointed counsel at the hearing. Unless 15

the order setting conditions of release is amended and the defendant is then released, the court shall 16

file a written order setting forth the reasons for declining to amend the order setting conditions of 17

release. The court shall consider the defendant’s financial ability to secure a bond. No defendant 18

eligible for pretrial release under Article II, Section 13 of the New Mexico Constitution shall be 19

detained solely because of financial inability to post a secured bond unless the court determines 20

by clear and convincing evidence and makes findings of the reasons why the amount of secured 21

bond requi red by the court is reasonably necessary to ensure the appearance of the particular 22

defendant as required. The court shall file written findings of the individualized facts justifying 23

METROPOLITAN COURT CRIMINAL Supreme Court Approved

RULE 7-401 July 29, 2025

RCR No. S-1-RCR-2025-00150 8

the secured bond as soon as possible, but no later than two (2) days aft er the conclusion of the 1

hearing. 2

(3) Work or school release. A defendant who is ordered released on a condition 3

that requires that the defendant return to custody after specified hours shall, on motion of the 4

defendant or the court’s own motion, be entitled to a hearing to review the conditions imposed. 5

Unless the requirement is removed and the defendant is released on another condition, the court 6

shall file a written order setting forth the reason for the continuation of the requirement. A hearing 7

to review conditions of release under this subparagraph shall be held by the metropolitan court 8

within five (5) days of the filing of the motion. The defendant shall have the right to assistance of 9

retained or appointed counsel at the hearing. 10

(4) Subsequent motion for review. The defendant may file subsequent motions 11

for review of the order setting conditions of release, but the court may rule on subsequent motions 12

with or without a hearing. 13

I. Amendment of conditions. The court may amend its order se tting conditions of 14

release at any time. If the amendment of the order may result in the detention of the defendant or 15

in more restrictive conditions of release, the court shall not amend the order without a hearing. If 16

the court is considering revocation of the defendant’s pretrial release or modification of the 17

defendant’s conditions of release for violating a condition of release, the court shall follow the 18

procedures set forth in Rule 7-403 NMRA. 19

J. Petition to district court. 20

(1) Case within metr opolitan court trial jurisdiction. A defendant charged 21

with an offense that is within metropolitan court trial jurisdiction may file a petition in the district 22

court for review of the metropolitan court’s order setting conditions of release under this paragraph 23

METROPOLITAN COURT CRIMINAL Supreme Court Approved

RULE 7-401 July 29, 2025

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only after the metropolitan court has reviewed the conditions of release and made a requisite ruling 1

under Paragraph H of this rule. The defendant shall attach to the district court petition a copy of 2

the metropolitan court order after the review of the conditions of release. 3

(2) Felony case. A defendant charged with a felony offense who has not been 4

bound over to the district court may file a petition in the district court for release under Rule 5-5

401(K) NMRA and this paragraph at any time after the defendant’s arrest. 6

(3) Petition; requirements. A petition to the district court under this paragraph 7

shall include the specific facts that warrant review by the district court and may include a request 8

for a hearing. The petitioner shall promptly 9

(a) file a copy of the district court petition in the metropolitan court, 10

(b) serve a copy on the district attorney, and 11

(4) Metropolitan court’s jurisdiction pending determination of the 13

petition. On the filing of a petition under this paragraph, the metropolitan court’s jurisdiction to 14

set or amend the conditions of release shall be suspended pending determination of the petition by 15

the district court. The metropolitan court shall retain jurisdiction over all other aspects of the case, 16

and the case shall proceed in the metropolitan court while the district court petition is pending. The 17

metropolitan court’s order setting conditions of release shall remain in effect unless and until the 18

district court issues an order amending the conditions of release. 19

(5) District court review. The district court shall rule on the petition in an 20

expedited manner. Within three (3) days after the petition is filed, the district court shall take one 21

of the following actions: 22

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(a) set a hearing no later than ten (10) days after the filing of the petition 1

and promptly send a copy of the notice to the metropolitan court; 2

(b) deny the petition summarily; or 3

(6) District court order; transmission to metropolitan court. The district court 5

shall promptly send to the metropolitan court a copy of the district court order disposing of the 6

petition, and jurisdiction over the conditions of release shall revert to the metropolitan court. 7

K. Expedited trial scheduling for defendant in custody. The metropolitan court 8

shall provide expedited priority scheduling in a case in which the defendant is detained as a result 9

of inability to post a secured bond or meet the conditions of release. The court shall hold a status 10

review hearing in any case in which the defendant has been held for more than sixty (60) days. 11

The purpose of the status review hearing is to conduct a meaningful review of the progress of the 12

case. If the court determines that insufficient progress has been made, then the court shall issue an 13

appropriate scheduling order. 14

L. Return of cash deposit. If a defendant has been released by executing a secured 15

appearance bond and depositing a cash deposit under Paragraph E of this rule, when the conditions 16

of the appearance bond have been performed and the defendant’s case has been adjudicated by the 17

court, the clerk shall return the sum that has been deposited to the person who deposited the s um, 18

or that person’s personal representatives or assigns. 19

M. Release from custody by designee. The chief judge of the metropolitan court may 20

designate by written court order responsible persons to implement the pretrial release procedures 21

set forth in Rule 7-408 NMRA. A designee shall release a defendant from custody before the 22

defendant’s first appearance before a judge if the defendant is eligible for pretrial release under 23

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RULE 7-401 July 29, 2025

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Rule 7-408 NMRA, but may contact a judge for special consideration based on except ional 1

circumstances. No person shall be qualified to serve as a designee if the person or the person’s 2

spouse is related within the second degree of blood or marriage to a paid surety who is licensed to 3

sell property or corporate bonds within this state. 4

N. Bind over to district court. For any case that is not within metropolitan court trial 5

jurisdiction, on notice to the metropolitan court, any bond shall be transferred to the district court 6

on the filing of an information or indictment in the district court. 7

O. Evidence. Information offered in connection with or stated in any proceeding held 8

or order entered under this rule need not conform to the New Mexico Rules of Evidence. 9

P. Forms. Instruments required by this rule, including any order setting conditions of 10

release, appearance bond, property bond, or surety bond, shall be substantially in the form 11

approved by the Supreme Court. 12

Q. Judicial discretion; disqualification and excusal. Action by any court on any 13

matter relating to pretrial release shall not preclude the subsequent statutory disqualification of a 14

judge. A judge may not be excused from setting initial conditions of release unless the judge is 15

required to recuse under the provisions of the New Mexico Constitution or the Code of Judicial 16

Conduct. 17

[As amended, effective August 1, 1987; October 1, 1987; September 1, 1990; December 1, 1990; 18

as amended by Supreme Court Order No. 08- 8300-059, effective February 2, 2009; as amended 19

by Supreme Court Order No. 17-8300-005, effective for all cases pending or filed on or after July 20

1, 2017; as amended by Supreme Court Order No. 22-8300-015, effective for all cases pending or 21

filed on or after December 31, 2022; as amended by Supreme Court Order No. S -1-RCR-2023-22

00021, effective for all cases pending or file d on or after December 31, 2023; as amended by 23

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RULE 7-401 July 29, 2025

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Supreme Court Order No. S-1-RCR-2024-00068, effective for all cases pending or filed on or after 1

May 8, 2024; as provisionally amended by Supreme Court Order No. S -1-AO-2025-00013, 2

effective for all cases pending or filed on or after July 29, 2025.] 3

Committee commentary. — This rule provides “the mechanism through which a person 4

may effectuate the right to pretrial release afforded by Article II, Section 13 of the New Mexico 5

Constitution.” State v. Brown, 2014-NMSC-038, ¶ 37, 338 P.3d 1276. In 2016, Article II, Section 6

13 was amended (1) to permit a court of record to order the detention of a felony defendant pending 7

trial if the prosecutor proves by clear and convincing evidence that the defendant poses a danger 8

to the safety of any other person or the community and that no release condition or combination 9

of conditions will reasonably ensure the safety of any other person or the community, and (2) to 10

require the pretrial release of a defendant who is in custody solely because of financial inability to 11

post a secured bond. This rule was derived from the federal statute governing the release or 12

detention of a defendant pending trial. See 18 U.S.C. § 3142. This rule was amended in 2017 to 13

implement the 2016 am endment to Article II, Section 13 and the Supreme Court’s holding 14

in Brown, 2014-NMSC-038. Corresponding rules are located in the Rules of Criminal Procedure 15

for the District Courts, see Rule 5-401 NMRA, the Rules of Criminal Procedure for the Magistrate 16

Courts, see Rule 6-401 NMRA, and the Rules of Procedure for the Municipal Courts, see Rule 8-17

401 NMRA. 18

Time periods specified in this rule are computed in accordance with Rule 7-104 NMRA. 19

Just as assistance of counsel is required at a detention hearing unde r Rule 5-409 NMRA 20

that may result in a denial of pretrial release based on dangerousness, Subparagraphs (A)(2), 21

(H)(2), and (H)(3) of this rule provide that assistance of counsel is required in a proceeding that 22

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may result in denial of pretrial release bas ed on reasons that do not involve dangerousness, such 1

as a simple inability to meet a financial condition. 2

As set forth in Paragraph B, a defendant is entitled to release on personal recognizance or 3

unsecured bond unless the court determines that the relea se, in addition to any non- monetary 4

conditions of release under Paragraph D, will not reasonably ensure the appearance of the 5

defendant and the safety of any other person or the community. 6

Paragraph C lists the factors the court should consider when determ ining conditions of 7

release. In all cases, the court is required to consider any available results of a pretrial risk 8

assessment instrument approved by the Supreme Court for use in the jurisdiction and the financial 9

resources of the defendant. 10

Paragraph D lists various non-monetary conditions of release. The court must impose the 11

least restrictive condition, or combination of conditions, that will reasonably ensure the appearance 12

of the defendant as required and the safety of any other person and the community. See 13

Brown, 2014-NMSC-038, ¶¶ 1, 37, 39. If the defendant has previously been released on standard 14

conditions before a court appearance, the judge should review the conditions at the defendant’s 15

first appearance to determine whether any particularized conditions should be imposed under the 16

circumstances of the case. Paragraph D also permits the court to impose non-monetary conditions 17

of release to ensure the orderly administration of justice. This provision was derived from the 18

American Bar Association, ABA Standards for Criminal Justice: Pretrial Release, Standard 10-19

5.2 (3d ed. 2007). Some conditions of release may have a cost associated with the condition. The 20

court should make a determination about whether the defendant can afford to pay all or a par t of 21

the cost, or whether the court has the authority to waive the cost, because detaining a defendant 22

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because of inability to pay the cost associated with a condition of release is comparable to detaining 1

a defendant because of financial inability to post a secured bond. 2

As set forth in Paragraph E, the only purpose for which the court may impose a secured 3

bond is to ensure that the defendant will appear for trial and other pretrial proceedings for which 4

the defendant must be present. See State v. Erickson s, 1987-NMSC-108, ¶ 6, 106 N.M. 567, 746 5

P.2d 1099 (“[T]he purpose of bail is to secure the defendant’s attendance to submit to the 6

punishment to be imposed by the court.”); see also NMSA 1978, § 31- 3-2(B)(2) (1993) 7

(authorizing the forfeiture of bond on the defendant’s failure to appear). 8

The 2017 amendments to this rule clarify that the amount of secured bond must not be 9

based on a bond schedule, i.e., a predetermined schedule of monetary amounts fixed according to 10

the nature of the charge. Instead, the c ourt must consider the individual defendant’s financial 11

resources and must set secured bond at the lowest amount that will reasonably ensure the 12

defendant’s appearance in court after the defendant is released. 13

Secured bond cannot be used for the purpose of detaining a defendant who may pose a 14

danger to the safety of any other person or the community. See Brown, 2014-NMSC-038, ¶ 53 15

(“Neither the New Mexico Constitution nor our rules of criminal procedure permit a judge to set 16

high bail for the purpose of pre venting a defendant’s pretrial release.”); see also Stack v. Boyle, 17