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NM restates how to preserve state constitutional argument

By John Wesley Hall, Jr.

NM explains its requirements for preserving state constitutional arguments v. Fourth Amendment arguments (which he loses on the merits). State v. Leyva, 2011 NMSC 9, 2011 N.M. LEXIS 132 (February 17, 2011).* 2. Preservation requirements restated. [*49] Rule 12-216 (A)’s preservation requirements are straightforward: “To preserve a question for review it must appear that a ruling or decision by the district court was fairly invoked ....” Where a state constitutional provision has previously been interpreted more expansively than its federal counterpart, trial counsel must develop the necessary factual base and raise the applicable constitutional provision in trial court. Where the provision has never before been addressed under our interstitial analysis, trial counsel additionally must argue that the state constitutional provision should provide greater protection, and suggest reasons as to why, for example, “a flawed federal analysis, structural differences between state and federal government, or distinctive state characteristics...continue to full post

Full post as published by Fourth Amendment on March 26, 2011 (boomark / email).