A. If, in the course of any investigation or hearing conducted by the commission pursuant to the Organized Crime Act, a person refuses to answer a question or questions or produce evidence of any kind on the ground that he will thereby be exposed to criminal prosecution or penalty or forfeiture, the commission may order the person to answer the question or questions or produce the requested evidence and confer immunity as provided in this section. No order to answer or produce evidence with immunity shall be made except by resolution of a two-thirds majority of all the members of the commission and after the attorney general and the appropriate district attorney have been given at least ten days' written notice of the commission's intention to issue such order and afforded an opportunity to be heard in respect to any objections they or either of them may have to the granting of immunity. Upon application of the attorney general or the appropriate district attorney within ten days of the written notice, the commission shall defer the issuance of any order under this subsection for such period, not longer than thirty days from the date of the application, as the attorney general or district attorney may specify.
B. If, upon issuance of an order pursuant to Subsection A of this section, the person complies with such order, he shall be immune from having such responsive answer given by him or such responsive evidence produced by him, or evidence derived therefrom used to expose him to criminal prosecution or penalty or forfeiture, except that such person may be prosecuted for any perjury committed in such answer or in producing such evidence, or for contempt for failing to give an answer or produce evidence in accordance with the order of the commission; and any such answer given or evidence produced shall be admissible against him upon any criminal investigation, proceeding or trial against him for such perjury, or upon any investigation, proceeding or trial against him for such contempt.
History: 1953 Comp., § 39-9-8, enacted by Laws 1977, ch. 215, § 6.
ANNOTATIONSRepeals and reenactments. — Laws 1977, ch. 215, § 6 repealed 20-9-8, 1953 Comp., relating to immunity from prosecution, and enacted the above section.
Privilege against self-incrimination not applicable to corporations. — The evidentiary privilege against self-incrimination of the fifth amendment of the U.S. Constitution, N.M. Const., art. II, § 15 and this section do not apply to corporations or a corporation's agent in his representative capacity. Doe v. State ex rel. Governor's Organized Crime Prevention Comm'n, 1992-NMSC-022, 114 N.M. 78, 835 P.2d 76.
Claims of privilege are premature before incriminatory information is specifically requested, either in the form of questions or documents, by the investigating agency. Governor's Organized Crime Prevention Comm'n v. Jaramillo, 1979-NMSC-087, 93 N.M. 525, 602 P.2d 622.
Law reviews. — For note, "Criminal Procedure - New Mexico Denies Fifth Amendment Protection to Corporations: John Doe and Five Unnamed Corporations v. State ex rel. Governor's Organized Crime Prevention Commission," see 23 N.M.L. Rev. 315 (1993).
Am. Jur. 2d, A.L.R. and C.J.S. references. — Propriety, under state constitutional provisions, of granting use or transactional immunity for compelled incriminating testimony - post-Kastigar cases, 29 A.L.R.5th 1.