Motion for Change of Venue - New Mexico

MOTION FOR CHANGE OF VENUE — CRIMINAL CASE

Use this motion for a New Mexico district-court criminal case only after selecting a ground authorized by NMSA 1978, § 38-3-3. Convenience, cost, witness location, or safety concerns should not be presented as standalone statutory grounds unless the supporting affidavit explains how the facts establish an authorized ground and why a fair trial cannot be obtained in the current county.

Filing and Record Control

Caption

Court: [____] Judicial District Court

County: [________________] County, New Mexico
Case No.: [________________________________]

DEFENDANT'S MOTION FOR CHANGE OF VENUE

Defendant [DEFENDANT FULL LEGAL NAME], through counsel, moves for a change of venue under NMSA 1978, §§ 38-3-3, 38-3-5, and 38-3-7. The current county is [CURRENT COUNTY]. Defendant requests transfer to [PROPOSED COUNTY], or to another county selected under § 38-3-7 that is free from the exception established by the evidence.

I. Case and Venue Background

1. Defendant is charged by [indictment / information] with [CHARGES AND CITATIONS].

2. The charging instrument alleges that [state the location facts establishing original venue].

3. Section 30-1-14 ordinarily places trial in the county where the crime was committed and supplies additional choices when material elements occurred in different counties or when death occurred in a different county.

4. The case is set for [hearing / trial] on [__/__/____].

II. Statutory Ground Selected

5. Defendant relies on the following ground or grounds in § 38-3-3:

☐ Section 38-3-3(A): judge-related ground. The assigned judge is alleged to be interested in the result, related to a party, or to have been counsel for a party. State the precise facts and coordinate any separate recusal procedure: [________________________________].

☐ Section 38-3-3(B)(1): adverse-party influence. The adverse party has undue influence over the minds of county inhabitants. Supporting facts: [________________________________].

☐ Section 38-3-3(B)(2): prejudice against Defendant. County inhabitants are prejudiced against Defendant. Supporting facts: [________________________________].

☐ Section 38-3-3(B)(3): public excitement or local prejudice. Public excitement or local prejudice about this case or its questions prevents selection of an impartial jury. Supporting facts: [________________________________].

☐ Section 38-3-3(B)(4): other stated cause. The following other cause prevents Defendant from obtaining a fair trial in the county: [________________________________].

6. For each subsection B ground, Defendant submits the attached affidavit of [Defendant / agent / attorney], stating the affiant's belief that Defendant cannot obtain a fair trial in the current county and stating the supporting cause.

III. Supporting Evidence

7. The evidence supporting the selected statutory ground includes:

8. The record goes beyond the mere existence of publicity. It shows [explain the content, reach, repetition, timing, and link to inability to seat an impartial jury].

9. Defendant has preserved the underlying materials rather than relying only on counsel's characterization:

• ☐ Complete articles or broadcasts with dates and source information
• ☐ Screenshots with URL, date, account, and surrounding context
• ☐ Affidavits from persons with personal knowledge
• ☐ Survey report, questions, sample, geography, dates, and methodology
• ☐ Juror questionnaires or voir-dire transcript excerpts, when available
• ☐ Threat reports, photographs, recordings, or official communications
• ☐ Other: [________________________________]

IV. Presumed and Actual Prejudice

10. New Mexico recognizes two distinct paths. Presumed prejudice concerns evidence that the community is so saturated with inflammatory publicity that the proceedings must be treated as tainted. Actual prejudice is evaluated through direct inquiry into potential jurors' attitudes to determine whether widespread and fixed prejudice makes a fair trial impossible. State v. Astorga, 2015-NMSC-007, ¶ 68.

11. Defendant relies on:

☐ Presumed prejudice before voir dire, based on the evidence in Paragraphs [____] and Exhibits [____].

☐ Actual prejudice shown during jury selection, based on juror [numbers / identifiers], questionnaire answers [____], voir-dire transcript pages [____], and rulings on cause challenges [____].

12. If the Court proceeds through voir dire before finally resolving venue, Defendant requests a record that permits focused inquiry into actual prejudice and the opportunity to renew or supplement the motion based on the selected jurors and the cause-challenge rulings. See Astorga, 2015-NMSC-007, ¶¶ 68-71; State v. Romero, 2019-NMSC-007, ¶¶ 10-17.

V. Evidence, Hearing, and Findings

13. Under § 38-3-5, the Court may require evidence supporting the motion. If it conducts a hearing, the Court must make findings and grant or overrule the motion.

14. Defendant requests:

• ☐ An evidentiary hearing before jury selection
• ☐ Juror questionnaire procedures directed to publicity and community ties
• ☐ Individual voir dire on identified subjects
• ☐ Admission of Exhibits [____] for the venue record
• ☐ Findings addressing each selected statutory ground and the supporting evidence
• ☐ Permission to renew or supplement the venue motion after voir dire

VI. Destination Under § 38-3-7

15. Defendant proposes [PROPOSED COUNTY] because [facts showing it is free from the identified exception].

16. The statutory destination analysis is:

☐ The proposed county is within the same judicial district and is free from the identified exception.

☐ All remaining counties within the same judicial district are subject to exception. Supporting evidence for each county: [________________________________].

☐ The motion is based on a ground relating to the judge. Defendant therefore requests a county in the nearest judicial district that is free from exception.

17. The proposed destination is supported by:

VII. Requested Relief

WHEREFORE, Defendant requests that the Court:

1. Set an evidentiary hearing if the Court requires evidence under § 38-3-5;
2. Make findings on the selected § 38-3-3 ground or grounds;
3. Transfer trial to [PROPOSED COUNTY], or another location selected under § 38-3-7 that is free from exception;
4. Direct the clerk regarding transmission of the record and future filings; and
5. Grant other relief the Court finds proper.

Respectfully submitted on [__/__/____].

AFFIDAVIT SUPPORTING SUBSECTION B MOTION

Use this affidavit only after confirming that it satisfies the current filing, oath, and notarial requirements. Section 38-3-3(B) permits the affidavit to be made by the moving party, the party's agent, or the party's attorney.

I, [AFFIANT NAME], state under oath:

1. I am the ☐ Defendant ☐ Defendant's agent ☐ Defendant's attorney.

2. I have personal knowledge of the following facts, except where a different basis is specifically identified: [________________________________].

3. I believe Defendant cannot obtain a fair trial in [CURRENT COUNTY] because:

• ☐ The adverse party has undue influence over the minds of county inhabitants.
• ☐ County inhabitants are prejudiced against Defendant.
• ☐ Public excitement or local prejudice about the case or its questions prevents an impartial jury from being obtained.
• ☐ Other cause: [________________________________].

4. The facts supporting that belief are:

[____________________________________________________________]

[____________________________________________________________]

[____________________________________________________________]

5. The attached supporting materials are identified as Exhibits [________________________________].

[INSERT CURRENT COMPLIANT JURAT / NOTARIAL CERTIFICATE]

OPTIONAL WRITTEN STIPULATION WITHIN THE SAME JUDICIAL DISTRICT

Section 38-3-4 permits a district judge to order a change from one county to another within the same judicial district when both parties stipulate in writing. Do not use this stipulation for a proposed county outside the current judicial district.

The State and Defendant stipulate that this criminal proceeding may be transferred from [CURRENT COUNTY] to [PROPOSED COUNTY], both within the [____] Judicial District, subject to Court approval.

PROPOSED ORDER

Court: [____] Judicial District Court

County: [________________] County, New Mexico
Case No.: [________________________________]

ORDER ON DEFENDANT'S MOTION FOR CHANGE OF VENUE

The Court considered the motion, affidavit, response, evidence, argument, and applicable law. The Court enters the following findings:

1. [Findings on each selected § 38-3-3 ground].
2. [Findings on presumed or actual prejudice, if raised].
3. [Findings on the current judicial district, remaining counties, judge-related ground, and destination under § 38-3-7].

IT IS ORDERED that the motion is:

☐ GRANTED. Trial is transferred to [COUNTY], [____] Judicial District, New Mexico. The clerk shall [record-transmission and docket instructions].

☐ DENIED. The reasons are stated in the findings above.

CERTIFICATE OF SERVICE

I certify that on [__/__/____], I served the motion and all listed exhibits on the following recipient using the filing or service method authorized for this case:

Signature: [________________________________]

SOURCES AND REFERENCES

• Official current NMSA 1978, Chapter 38 PDF
• Official current NMSA 1978, Chapter 30 PDF
• State v. Astorga, 2015-NMSC-007 — official opinion PDF
• State v. Romero, 2019-NMSC-007 — official opinion PDF

DISCLAIMER: This template is an editable starting point and is not legal advice. Verify all authority, deadlines, local procedures, evidence, affidavit formalities, and service requirements before use.