N.M. R. Evid. 11-103
N.M. R. Evid. 11-103
Committee commentary. - The language of Rule 11-103 NMRA was amended in 2012 to be consistent with the restyling of the Federal Rules of Evidence, effective December 1, 2011, to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. There is no intent to change any result in any ruling on admissibility.
[Adopted by Supreme Court Order No. 12-8300-015, effective for all cases pending or filed on or after June 16, 2012.]
ANNOTATIONS The 2012 amendment, approved by Supreme Court Order No. 12-8300-015, effective for all cases pending or filed on or after June 16, 2012, rewrote the rule to make stylistic changes. The 2006 amendment, approved by Supreme Court Order 06-8300-25 effective December 18, 2006, added the second sentence of Subparagraph (2) of Paragraph A relating to the preservation of error. The 1993 amendment, effective December 1, 1993, substituted "court" for "judge" and made gender neutral changes throughout the rule. Compiler's notes. - This rule is similar to Rule 103 of the Federal Rules of Evidence. This rule is deemed to have superseded those portions of Rule 1-061 NMRA, which established the harmless error rule for evidentiary issues and Paragraph C of Rule 1-043 NMRA, which related to creating a record of excluded evidence.
For making objections known to trial court, see Rules 1-046 and 12-216 NMRA. For formal exceptions not being required, see Rules 1-046 and 12-216 NMRA. I. GENERAL CONSIDERATION. Constitutional rights of confrontation may be lost as other rights, by a failure to assert them at the proper time. State v. Martinez, 1982-NMCA-137, 99 N.M. 48, 653 P.2d 879. Paragraph C encourages the use of bench conferences to prevent inadmissible evidence from coming before the jury. State v. Reynolds, 1990-NMCA-122, 111 N.M. 263, 804 P.2d 1082. Trial court is not reversed for reaching correct result for wrong reason. H.T. Coker Constr. Co. v. Whitfield Transp., Inc., 1974-NMCA-002, 85 N.M. 802, 518 P.2d 782. If trial court's judgment can be sustained upon correct legal principles, it will not be reversed merely because the reasoning or conclusion of law is erroneous. Mobile Am., Inc. v. Sandoval Cnty. Comm'n, 1974-NMSC-007, 85 N.M. 794, 518 P.2d 774 (1974), overruled on other grounds, El Dorado at Santa Fe, Inc. v. Board of Cnty. Comm'rs, 1976-NMSC-029, 89 N.M. 313, 551 P.2d 1360. Where challenged testimony was properly admitted, the fact that it may have been admitted on an erroneous basis would not aid defendant. Jesko v. Stauffer Chem. Co., 1976 -NMCA-117, 89 N.M. 786, 558 P.2d 55. Trial court record or plain error prerequisite to appellate review. - Defendant's contention that the manner in which officers executed the search warrant was improper because the officers waited until defendant arrived before they attempted to enter the premises, suggesting that officers were somehow improperly motivated and that their execution of the warrant was in fact directed exclusively against this defendant, was never brought to the attention of the trial court; accordingly, defendant may not raise it in appellate court without first demonstrating plain error. State v. Quintana, 1975-NMCA-034, 87 N.M. 414, 534 P.2d 1126, cert. denied, 88 N.M. 28, 536 P.2d 1084, cert. denied, 423 U.S. 832, 96 S. Ct. 54, 46 L. Ed. 2d 50 (1975). Defendant asserted his arrest had been illegal and the subsequent finding of heroin "arose" from the claimed illegal arrest so that he was deprived of his fundamental rights by admission into evidence of heroin, but defendant did not attempt to suppress this evidence prior to trial nor object to testimony relative thereto at trial. Therefore, despite claim that under "harmless error" rule no error is harmless if it is inconsistent with substantial justice and despite defendant's reliance on the "plain error" rule, appellate court could not hold there was an illegal arrest as a matter of law. State v. Bauske, 1974-NMCA-078, 86 N.M. 484, 525 P.2d 411. A party may not obtain a review of the evidence where he did not make requested findings, file exceptions or move to amend findings. Van Orman v. Nelson, 1967-NMSC-069, 78 N.M. 11, 427 P.2d 896. Substantial right violated by evidence of certain collateral offenses. - Evidence of a collateral offense is generally inadmissible in a criminal prosecution to establish a specific crime unless the case falls within an applicable exception under these rules, and the trial court's admission of evidence of a past offense not allowed by these rules was prejudicial error which violated defendant's substantial right to a fair trial. State v. Ross, 1975-NMCA-056, 88 N.M. 1, 536 P.2d 265. Admission of codefendant's plea agreement as substantive evidence violated defendant's rights to due process and fair trial. - Where defendant was charged with receiving or transferring a stolen vehicle, conspiracy to receive or transfer a stolen vehicle, possession of burglary tools, and two counts of harboring a felon, and where the district court admitted, without any limiting instruction, a co-defendant's plea and disposition agreement in order to prove elements of the crime against defendant, including knowledge that the co-defendant had committed felonies and that defendant had reason to believe that the automobile in question was stolen, defendant was denied her constitutional rights to due process and fair trial, because a codefendant's guilty plea may not be used as substantive evidence to prove a defendant's guilt. State v. Flores, 2018-NMCA-075. Right not violated if only one of several visual demonstrations excluded. - Where information shown by both the "plain view" and the "profile" of walkway had been presented to the jury without objection in negligence suit arising from fall on walkway, and only the visual demonstration of the distortion of evidence was excluded, plaintiffs had no "substantial right" to have the jury view the distortion, and exclusion thereof was not prejudicial. Cantrell v. Dendahl, 1972-NMCA-035, 83 N.M. 583, 494 P.2d 1400. Improper admission of expert testimony. - Since the verdict awarded an amount close to the figure given by the expert, there was a high probability that the expert's testimony influenced the verdict. Since the improper admission of his testimony affected a "substantial right" of the city, in a condemnation action, the court had to set aside the judgment. City of Albuquerque v. PCA-Albuquerque #19, 1993-NMCA-043, 115 N.M. 739, 858 P.2d 406. Appellant must show prejudice. - Failure of defendant's attorney to object to certain testimony alleged to be hearsay resulted in no prejudice, nor did it deprive defendant of a fair trial, as a review of this testimony reveals that it was not prejudicial. State v. Ranne, 1969-NMCA-029, 80 N.M. 188, 453 P.2d 209. Harmless error in exclusion of evidence cannot be basis for new trial. City of Albuquerque v. Ackerman, 1971-NMSC-032, 82 N.M. 360, 482 P.2d 63. Error on immaterial point without effect. - Error in making a finding which is immaterial to the decision in the case is harmless error and cannot be the basis for a reversal. Crouch v. Most, 1967-NMSC-216, 78 N.M. 406, 432 P.2d 250; Melfi v. Goodman, 1963-NMSC-224, 73 N.M. 320, 388 P.2d 50. Where there was no causal relationship between want of a resident inspector and failure of structure, court's refusal to find that contract required provision of resident inspector related merely to evidentiary matters, and error, if any, was harmless. Louis Lyster Gen. Contractor v. City of Las Vegas, 1971-NMSC-094, 83 N.M. 138, 489 P.2d 646. Evidentiary question must contribute to conviction to be error. - To warrant reversible error in the denial of the admission of testimony, the defendant must show that there is a reasonable possibility that the trial court's failure to allow such testimony contributed to the defendant's conviction. State v. Garcia, 1983-NMCA-069, 100 N.M. 120, 666 P.2d 1267. Error must affect verdict. - Admission of evidence is harmless error unless it affects substantial rights of a party. Reception of evidence must be shown to have affected the verdict of the jury before court of appeals will hold that a substantial right has been impaired. Proper v. Mowry, 1977-NMCA-080, 90 N.M. 710, 568 P.2d 236 Error in the admission of evidence in a criminal trial must be declared prejudicial and not harmless if there is a reasonable possibility that the evidence complained of might have contributed to the conviction. Clark v. State, 1991-NMSC-079, 112 N.M. 485, 816 P.2d 1107. Non-constitutional harmless error analysis. - To determine whether an error is harmless, absent a constitutional violation, the appellate court determines whether there is a reasonable probability that the error affected the verdict. State v. Astorga, 2015-NMSC-007. Where the trial court improperly prevented defendant from calling a second witness to impeach the testimony of a trial witness whose testimony conflicted with a prior statement, there was not a reasonable probability that the error affected the verdict when the witness was impeached with his prior inconsistent statement during cross-examination and the extrinsic evidence of the prior statement was only minimally relevant to the material issue at hand. State v. Astorga, 2015-NMSC-007. Jury findings may render error harmless. - Even if admission into evidence of a state board of education regulation was error, it was harmless error, since the jury found in favor of one of the several defendants under an instruction that violation of the regulation was negligence per se, and so jury could only have concluded that the regulation did not apply. Maxwell v. Santa Fe Pub. Schs., 1974 -NMCA-138, 87 N.M. 383, 534 P.2d 307. Court presumed to have disregarded inadmissible testimony. - In cases tried before the court prior to enactment of this rule, it was presumed that the court ultimately disregarded inadmissible testimony, and erroneous admission of testimony afforded no ground of error, unless it was apparent that the court considered such testimony in deciding the case. L. & B. Equip. Co. v. McDonald, 1954-NMSC-100, 58 N.M. 709, 275 P.2d 639; Gray v. Grayson, 1966-NMSC-087, 76 N.M. 255, 414 P.2d 228; Davis v. Davis, 1972-NMSC-045, 83 N.M. 787, 498 P.2d 674. Improper admission of exhibits afforded no ground for reversal under former law unless it appeared that the court considered them in deciding the case, particularly where there was testimony free from objection to support the court's findings. Gish v. Hart, 1966-NMSC-028, 75 N.M. 765, 411 P.2d 349. Alleged error harmless where no dispute over facts shown. - Where the only probative effects admission into evidence of prosecutrix's glasses could have had was to establish their existence and that prosecutrix had been in the area where they were found, and neither the existence of the glasses nor the fact that prosecutrix had been at said place was in dispute, admission could not possibly have prejudiced defendant. State v. Carrillo, 1970-NMCA-127, 82 N.M. 257, 479 P.2d 537. Alleged error harmless where essence of evidence already in record. - Exclusion of instruction sheet accompanying anti-snakebite serum kit was harmless error where testimony on the contents of the sheet was already in the record. Crouch v. Most, 1967-NMSC-216, 78 N.M. 406, 432 P.2d 250. Exclusion of cumulative evidence not error. - The trial court does not err in not admitting into evidence at the hearing for a new trial the statement of a state eyewitness which purportedly contradicts previous trial testimony where the statement does not contradict previous testimony but is merely cumulative of the defense propounded. State v. Stephens, 1982-NMSC-128, 99 N.M. 32, 653 P.2d 863. Improper evidence used for impeachment purposes. - Where the improper evidence has been used for impeachment purposes, not only does the error permit the jury to consider the substantive effect of the evidence itself; it also discredits the testimony of the witness, including, of course, the defendant if he or she has testified. Clark v. State, 1991-NMSC-079, 112 N.M. 485, 816 P.2d 1107. Effect of corroborating evidence. - If proper objection was made, admission of hearsay testimony was prejudicial and reasonably calculated to cause (and may have caused) rendition of an improper verdict, and reversal was required. The mere fact that other testimony corroborated or was corroborated by hearsay testimony did not render error harmless. Sayner v. Sholer, 1967-NMSC-063, 77 N.M. 579, 425 P.2d 743. Error in admission of evidence may not constitute ground for reversal where evidence which has been admitted is merely corroborative or cumulative. Davis v. Davis, 1972-NMSC-045, 83 N.M. 787, 498 P.2d 674. Complaining party's actions may defeat objection. - Plaintiff could not claim reversible error because trial court considered medical depositions which were not properly before it (not having been introduced into evidence) because no objection was made to use of the depositions as evidence by trial court, plaintiff himself relied on part of one of the depositions and he had pointed to nothing in the depositions which might be considered as prejudicial error. There being sufficient competent evidence to support findings and judgment, this admission of incompetent evidence, not shown to be prejudicial, was not reversible error. Medina v. Zia Co., 1975-NMCA-137, 88 N.M. 615, 544 P.2d 1180, cert. denied, 89 N.M. 6, 546 P.2d 71. Failure to object to testimony given at one trial precludes opponent at any subsequent trial from any further objection, for the reason and to the extent that a failure to object before or at first trial would have precluded him. State v. White, 1956-NMSC-038, 61 N.M. 109, 295 P.2d 1019. As to hearsay evidence, see Rules 11-801 to 11-807 NMRA. Trial judge's treatment of inadmissible evidence may defect objection. - Prompt sustaining of defendant's objection and admonition to disregard the answer cured any prejudicial effect from inadmissible hearsay testimony concerning defendant's hitting of a child, and prosecutor's attempt to evade trial court's exclusionary ruling did not deprive defendant of a fair trial because objection to the question was promptly sustained and the question was never answered. State v. King, 1977-NMCA-042, 90 N.M. 377, 563 P.2d 1170, overruled on other grounds, State v. Reynolds, 1982-NMSC-091, 98 N.M. 527, 650 P.2d 811. Where prior to enactment of this rule, evidence erroneously admitted during the progress of the trial was withdrawn or stricken out by the court, the error was cured. State v. Carlton, 1972-NMCA-015, 83 N.M. 644, 495 P.2d 1091, cert. denied, 83 N.M. 631, 495 P.2d 1078. Jury could, under former law, exclude from consideration erroneously admitted testimony indicating that defendant had committed criminal acts not related to the offense charged, when evidence was withdrawn by the court with a proper cautionary charge. State v. Ferguson, 1967-NMSC-032, 77 N.M. 441, 423 P.2d 872. Or circumstances of trial and production of evidence. - Error, if any, in refusal to permit plaintiff's expert to testify relative to a dangerous installation while permitting defendant's expert to testify relative to a safe installation was harmless where, although court sustained a defense objection to such evidence at two points during testimony of one of plaintiff 's experts, immediately after the first objection, the same expert answered the question phrased somewhat differently and without objection and, additionally, substantially the same evidence had been adduced earlier from another of plaintiff 's experts. State Farm Fire & Cas. Co. v. Miller Metal Co., 1971-NMCA-177, 83 N.M. 516, 494 P.2d 178, cert. quashed as improvidently granted, 83 N.M. 740, 497 P.2d 742 (1972). Trial court should not have permitted police officer to evaluate what he had found in terms of whether it constituted negligence or absence of negligence. However, where witness was limited to merely assisting in the investigation, and his answer was limited to only what he found or failed to find, the error committed, in permitting the question to be asked and answered, was harmless. Lopez v. Maes, 1970-NMCA-084, 81 N.M. 693, 472 P.2d 658, cert. denied, 81 N.M. 721, 472 P.2d 984. Court's failure does not excuse defendant's. - When, prior to enactment of this rule, evidence was admitted over objection, with a statement by the court that its use would be limited by the instructions, but the court failed to so instruct, an appellant could not complain of this action if he did not submit a limiting instruction, or in some manner call the omission to the attention of the court. McCauley v. Ray, 1968-NMSC-194, 80 N.M. 171, 453 P.2d 192. Litigant may not invite error and then take advantage of it. McCauley v. Ray, 1968-NMSC-194, 80 N.M. 171, 453 P.2d 192. Counsel may comment on failure to produce apparently qualified witness in civil trial. - It is permissible for counsel in a civil case, in argument to the jury, to comment on failure or omission of the adverse party to produce or examine as a witness on his behalf an employee of such party who is apparently qualified to testify in regard to the matter or question in issue. Chavez v. Atchison, T. & S.F. Ry., 1967 -NMSC-012, 77 N.M. 346, 423 P.2d 34. No substantial right affected by jury's viewing picture not in evidence. - It was error for a picture of deceased and his family to have been delivered to the jury room since it had not been admitted into evidence. However, in light of overwhelming evidence against defendant, demonstrated by the record as a whole, it cannot be said that any substantial right of defendant was adversely affected from the viewing by two jurors of this photograph. State v. Baros, 1974-NMCA-127, 87 N.M. 49, 529 P.2d 275, cert. denied, 87 N.M. 47, 529 P.2d 273. Evidence of extraneous charges not prejudicial to habitual defendant. - Even if objections are made, evidence of extraneous charges does not prejudice an habitual defendant when the jury knows that the charge is based on repeat offenses and the only question for it to decide is the defendant's identity. State v. Barela, 1982-NMCA-054, 97 N.M. 723, 643 P.2d 287. Admission of defendant's dishonorable military discharge as harmless error. - The admission of evidence of the defendant's other than honorable discharge from the military service is harmless error where other strong and competent admissible evidence supports the jury verdict. State v. Ho'o, 1982-NMCA-158, 99 N.M. 140, 654 P.2d 1040. II. TIMELY AND SPECIFIC OBJECTION. Objection necessary to preserve error. - To preserve error on appeal, there must be a proper objection. Poorbaugh v. Mullen, 1982-NMCA-141, 99 N.M. 11, 653 P.2d 511. Where defense counsel made the tactical decision that, in the absence of live testimony by a defendant's wife, the prior testimony of his wife would be advantageous to the defendant, there was neither plain error nor fundamental error in admitting the testimony, even though the evidence would have been inadmissible if either party had objected. State v. Crislip, 1990-NMCA-054, 110 N.M. 412, 796 P.2d 1108, overruled on other grounds, Santillanes v. State, 1993-NMSC-012, 115 N.M. 215, 849 P.2d 358. A reviewing court will not reverse the trial court on grounds which the trial court was neither first asked to consider nor had the opportunity to review. State v. Aguilar, 1982-NMCA-116, 98 N.M. 510, 650 P.2d 32. Failure to timely object. - Where defendant made an objection to the expertise of a social worker after the social worker had already testified about several types of situations and circumstances that would likely make a child recant previous testimony, the jury had already heard a great deal of evidence about recantation and the objection was not timely. State v. Neswood, 2002-NMCA-081, 132 N.M. 505, 51 P.3d 1159, cert. denied, 132 N.M. 551, 52 P.3d 411. Objections must be made at the time the evidence is offered. - This rule requires that in order to preserve a claim of error, a party must make a timely objection; generally, evidentiary objections must be made at the time the evidence is offered. State v. Tapia, 2015-NMCA-048, cert. denied, 2015-NMCERT-004. Where defendant was charged with numerous counts of criminal sexual penetration of a minor and criminal sexual contact of a minor, prior to physician assistant's (PA) testimony, defendant agreed that it was appropriate for the witness to testify regarding her findings and what they might be consistent with; during the PA's testimony, defendant did not object when the witness testified that "redness" on the child victim's labia majora and minora and on the right side of the clitoris could possibly be from sexual abuse or it could possibly be from scratching; when the witness later testified that a scratch on the right labia minora could be consistent with sexual abuse, defendant objected, claiming that it was inappropriate for the PA to make such a conclusion; the jury had already heard of various causes of the injuries before the objection was made and defendant had already agreed with the district court's ruling that the PA could testify about what her observations may be consistent with; defendant's objection was untimely and therefore not preserved. State v. Tapia, 2015-NMCA-048, cert. denied, 2015-NMCERT-004. Pretrial motion in limine failed to preserve objection to actual trial testimony. - In defendant's murder trial, where defense counsel filed a pretrial motion in limine to restrict the testimony of a state's witness, which defense counsel anticipated would involve interpreting cell-phone related records and which defense counsel believed required a qualified expert witness, but where defense counsel failed to make a specific objection to the witness's testimony at trial and failed to invoke a ruling from the court, the challenge to the witness's testimony was not preserved for appellate review, because the motion in limine did not apprise either the opposing party or the district court to any specific alleged error in the witness's actual trial testimony. State v. Carrillo, 2017-NMSC-023. Renewal of objection. - When an exhibit is admitted conditionally, it is the duty of the party seeking to exclude the exhibit to renew its objection and to move to strike if its relevancy is not thereafter established. Woolwine v. Furr's, Inc., 1987-NMCA-133, 106 N.M. 492, 745 P.2d 717. Objection to polygraph evidence must be made at trial. - Since admissibility of polygraph evidence is now governed by the New Mexico rules of evidence, there is no reason to suppose that parties who wish to appeal admissibility of such evidence are excused from challenging its admission at trial. State v. Ortiz, 1975-NMCA-112, 88 N.M. 370, 540 P.2d 850. Foundation for admission of inculpatory statements must be challenged at trial. - Absent some contemporaneous challenge to the foundational requirements for admissibility of inculpatory statements in the trial court, an appellate court will not review the claim that foundational requirements were not met. State v. Gallegos, 1978-NMCA-121, 92 N.M. 336, 587 P.2d 1347. Where the trial court was never asked to rule on the admissibility of inculpatory statements, there was no objection from defendant after the prosecutor's foundation questions and no motion was made to strike a police officer's testimony concerning the statements, error cannot be predicated upon the absence of an express affirmative ruling by the trial court concerning voluntariness. State v. Gallegos, 1978-NMCA-121, 92 N.M. 336, 587 P.2d 1347. Review where evidence excluded. - Although an appellate court is not required to review every sua sponte exclusion of evidence that is made without a timely objection of counsel, Paragraph A of this rule and Rule 12-216 clearly permit review in a case where the substantial rights of defendant were affected by the trial court's ruling and the substance of the evidence to be admitted was made known or was apparent to the court. State v. Balderama, 2004-NMSC-008, 135 N.M. 329, 88 P.3d 845. Objection required regarding witness's reference to defendant's silence. - Where the prosecutor comments on or inquires about the defendant's silence, such a reference can have an intolerable prejudicial impact and may require reversal under the "plain error" rule. However, where the witness simply refers to the defendant's silence, the defendant must object to this testimony as required by Subdivision (a) (now Paragraph A) in order to preserve the error. In such a situation the defendant would simply be objecting to the testimony of the witness as being inadmissible under either Rule 403 or Rule 402 (now 11-403 or 11-402 NMRA). State v. Mirabal, 1982-NMCA-093, 98 N.M. 130, 645 P.2d 1386. Objection on redirect to issue raised on cross not timely. - Where defendants failed to plead waiver of mechanic's liens as affirmative defense, but intervenors broached the issue when they asked defendant's witness during cross-examination about the existence, identification and usage of lien waivers, the issue was tried by implied consent during cross-examination, and defendant on redirect could pursue the issue; objection made by intervenors at the end of testimony upon redirect was not timely. George M. Morris Constr. Co. v. Four Seasons Motor Inn, Inc., 1977-NMSC-064, 90 N.M. 654, 567 P.2d 965. Objecting party must state specific grounds. - In objecting to evidence, it is the duty of counsel to advise the court specifically of the ground of objection, so that it may rule intelligently. State v. Casteneda, 1982-NMCA-046, 97 N.M. 670, 642 P.2d 1129. Although defense counsel objected to introduction of prior convictions under Rule 11-609 NMRA, the "specific grounds" stated related to juvenile convictions and stale convictions; as defendant did not assert inadmissibility of convictions of crimes punishable by imprisonment for less than one year, this issue is raised for the first time on appeal and will not be heard. State v. Cardona, 1974-NMCA-052, 86 N.M. 373, 524 P.2d 989, cert. denied, 86 N.M. 372, 524 P.2d 988. An objection to the introduction of evidence which does not specify the particular ground on which the evidence is objectionable does not call the trial court's attention to the matter to be decided, and on appeal will be treated as if no objection to such evidence had been made. Leonard v. Barnes, 1965-NMSC-080, 75 N.M. 331, 404 P.2d 292. Even if the question is objectionable as calling for hearsay evidence, a ruling by the court will be sustained where objection is not properly stated and court's attention is not directed to the defect relied upon. Sturgeon v. Clark, 1961-NMSC-125, 69 N.M. 132, 364 P.2d 757. The general rule that there is no error in a ruling approving the admission of evidence unless the party opposing the evidence timely objects and states the specific ground of the objection did not apply in a case when the trial court excluded the evidence in question rather than admitting it. Padilla v. Hay, 1995-NMCA-067, 120 N.M. 220, 900 P.2d 969. Not always necessary to cite proper rule. - Defense counsel's objection to prosecutor's questions as to defendant's misdemeanor convictions on grounds of irrelevancy was sufficiently specific to alert the trial court and the prosecution to the impropriety of the questioning since objection implicitly asserted the policy behind Rule 609 (now 11-609 NMRA), and thus defense counsel did not waive this error despite his failure to cite the proper rule. Albertson v. State, 1976-NMSC-056, 89 N.M. 499, 554 P.2d 661. So long as nature of objection plain. - Although objection was not as specific as it might have been, as it sufficiently informed the court that objection was being made to proof of content of a document in violation of the best evidence rule, it was sufficient to preserve that objection for review. Frost v. Markham, 1974-NMSC-046, 86 N.M. 261, 522 P.2d 808. Objector must move to strike testimony or request curative instruction. - In prosecution for homicide in a vehicle while driving recklessly, trial court's error, if any, in admitting evidence of the presence of marijuana seeds in the car that defendant was driving was not properly preserved for review. State v. Sandoval, 1975-NMCA-096, 88 N.M. 267, 539 P.2d 1029. In a prosecution for check forgery, appellate review would not be allowed with regard to the admission of the unresponsive portion of a witness' answer (i.e., "I have lost a lot of money to him with other checks") into evidence, despite Rule 404 (now 11-404 NMRA), relating to other crimes, wrongs or acts, and Rule 608 (now 11-608 NMRA), relating to specific instances of conduct, since the defendant failed to voice an objection at trial, to ask the court to strike the response, or to offer a curative instruction, and since the evidence did not constitute prejudicial or plain error. State v. Young, 1985-NMCA-079, 103 N.M. 313, 706 P.2d 855. Failure to object constitutes waiver of right. - Where no objection was made to the testimony of officer in which he related the content of his remark and defendant's response thereto and where defendant had already been advised of his rights to an attorney and to remain silent, even if defendant had a right to have this testimony excluded he waived such right when he failed to make objection to the testimony or to raise any question as to its admissibility. State v. Smith, 1969-NMCA-016, 80 N.M. 126, 452 P.2d 195. Where no objection was made to the testimony pertaining to the previous criminal offense, the error was not preserved for review. State v. Gutierrez, 1968-NMCA-090, 79 N.M. 732, 449 P.2d 334, cert. denied, 80 N.M. 33, 450 P.2d 633 (1969). Failure to object to the admission of evidence constitutes a waiver of objection, and in such case the objection cannot be raised for the first time on appeal. McCauley v. Ray, 1968-NMSC-194, 80 N.M. 171, 453 P.2d 192; Bloom v. Lewis, 1980-NMCA-155, 97 N.M. 435, 640 P.2d 935; Security Bank & Trust v. Parmer, 1981-NMSC-118, 97 N.M. 108, 637 P.2d 539. III. OFFER OF PROOF. Offer of proof that third person may have murdered victim to get out from under debt was insufficient to determine whether district court abused its discretion in excluding it, since there was no evidence that third person heard statement so as to make it admissible on issue of motive. State v. Rosales, 2004-NMSC-022, 136 N.M. 25, 94 P.3d 768. Offer of proof essential to preserve error where evidence excluded. - When error is based on an improper exclusion of evidence, an offer of proof is essential to preserve the error for appeal. Williams v. Yellow Checker Cab Co., 1967-NMSC-099, 77 N.M. 747, 427 P.2d 261; Nichols Corp. v. Bill Stuckman Constr., Inc., 1986-NMSC-077, 105 N.M. 37, 728 P.2d 447. Timely offer and nonrepetitious proof essential. - Right to offer proof is almost absolute, but offer must be timely and trial court has discretion to restrict repetitious proof. State v. Shaw, 1977-NMCA-059, 90 N.M. 540, 565 P.2d 1057. Basic reason underlying rule of tender is directed at insuring exact knowledge on the part of trial court of evidentiary facts which he is called upon to admit into consideration. State v. White, 1954-NMSC-050, 58 N.M. 324, 270 P.2d 727. Proposed evidence must be tendered to court. - Defendant's claim that trial court erred in refusing to allow him to call a juror to impeach the verdict (on grounds that one or more jurors in his case had been jurors in another case which tried a defense witness) was not reached by appellate court because the record did not show a tender of the excluded evidence. State v. Carrillo, 1975-NMCA-103, 88 N.M. 236, 539 P.2d 626. Assuming that the withholding of certain logs was improper, they were never presented to trial court so that it could determine whether they were material or whether the withholding prejudiced the defense, and consequently there was no error in denying motion for a new trial. State v. Lucero, 1977-NMCA-021, 90 N.M. 342, 563 P.2d 605, cert. denied, 90 N.M. 636, 567 P.2d 485. Substance and purpose of evidence must be made clear. - Where no questions were asked and the substance of the evidence was not made known to the court, defendant merely informing the court that it desired to present this type of evidence, tender was insufficient. De La O v. Bimbo's Restaurant, Inc., 1976-NMCA-115, 89 N.M. 800, 558 P.2d 69, cert. denied, 90 N.M. 7, 558 P.2d 619. Bias of witness is always relevant and therefore pendency of civil action by prosecuting witness seeking damages for assault being tried in criminal action is a proper subject of inquiry; however, trial court did not err in prohibiting defendant in an aggravated battery prosecution from questioning of victim concerning civil suit where counsel gave court no information about the suit, made no tender of evidence and never informed court that the witness himself had anything to do with the suit. State v. Santillanes, 1974-NMCA-092, 86 N.M. 627, 526 P.2d 424. Where there was no indication in the record that trial judge was ever informed that defendant believed that a crucial witness for the state bore tattoos which were self-inflicted, thus allegedly calling into question her credibility, and there was no offer of proof to that effect, it was not error for judge to sustain an objection to the question. State v. Ortiz, 1975-NMCA-112, 88 N.M. 370, 540 P.2d 850. Where defendant failed to pose any questions to any witness concerning any character trait of victim and merely claimed that a certain witness could testify concerning his reputation for aggressiveness and recklessness, without revealing the substance of the evidence either as to such character traits or his reputation in connection with those traits, the offer of proof as to reputation or opinion evidence was deficient, and there was no error in exclusion of evidence. State v. Bazan, 1977-NMCA-011, 90 N.M. 209, 561 P.2d 482, cert. denied, 90 N.M. 254, 561 P.2d 1347. An offer to prove facts which state mere conclusions is too general and should properly be rejected. The substance of the evidence must be made known to the trial court. State ex rel. Conley Lotts Nichols Mach. Co. v. Safeco Ins. Co. of Am., 1983-NMCA-112, 100 N.M. 440, 671 P.2d 1151. General claim of relevancy insufficient tender. - Where issue was whether specific instances of conduct in 1975 were admissible on question of damages suffered in 1972, defendant's general claim of evidence relating to probable life expectancy of plaintiff was an insufficient tender. De La O v. Bimbo's Restaurant, Inc., 1976-NMCA-115, 89 N.M. 800, 558 P.2d 69, cert. denied, 90 N.M. 7, 558 P.2d 619. Appellate court reluctant to guess nature of evidence. - Where state objected to further questioning regarding witness's juvenile record, and after the judge sustained the objection the defendant made no proffer as to what his next questions would have been and what he expected to show, he failed to preserve the error since because of difficult evidentiary problems involved in this sort of questioning, appellate court was unwilling to guess as to what questions defendant was prevented from asking. State v. Ortiz, 1975-NMCA-112, 88 N.M. 370, 540 P.2d 850. When trial judge feels compelled to exclude evidence sua sponte, the parties should first be informed of the judge's specific concerns, and this should be done on the record, before excluding the evidence, and outside the presence of the jury. State v. Balderama, 2004-NMSC-008, 135 N.M. 329, 88 P.3d 845. Subsequent general offer insufficient tender. - Where with exception of one question and answer at time objections were sustained, defendant did not ask to make an offer of proof, but after jury was excused for the evening, defendant sought to offer proof of other unidentified questions to which objections had been sustained, court could not say trial court erred in not permitting defendant to put on a general offer of proof going to an unidentified subject matter for which he had not stated any theory of admissibility. State v. Kendall, 1977-NMCA-002, 90 N.M. 236, 561 P.2d 935, reversal of conviction on other grounds held improper, 1977-NMSC-015, 90 N.M. 191, 561 P.2d 464. Requirements relaxed where party prevented from making proper tender. - Where prosecution and trial judge effectually prevented defense attorney from asking any questions, prosecution could not be heard to urge failure of defense to ask a proper question calling for testimony covered by tender. State v. White, 1954-NMSC-050, 58 N.M. 324, 270 P.2d 727. Party must pursue available means for introducing evidence. - Although trial court refused to subpoena psychologist as requested by defendant after trial had begun, defendant himself could have subpoenaed the doctor without court permission, and had trial court refused to allow him to testify, defendant would in that case have to make an offer of proof to preserve error. State v. Melton, 1977-NMSC-014, 90 N.M. 188, 561 P.2d 461. Insanity defense abandoned upon failure to offer proof. - Where defendant never made offer of proof on issue of insanity after trial court sustained state's objection to admission of evidence on the question because of defendant's failure to comply with Rule 35(a), N.M.R. Crim. P. (now see Paragraph A of Rule 5-602 NMRA), and one of his experts was unable even to give an opinion on whether or not defendant was able to form requisite specific intent, then defendant had abandoned defense of insanity. State v. Padilla, 1975-NMCA-084, 88 N.M. 160, 538 P.2d 802, cert. denied, 88 N.M. 318, 540 P.2d 248. Where defendant never brought to the attention of trial court the fact that the state actually had notice that he would raise the defense of insanity, he was precluded from raising this ground for reversal on appeal. State v. Padilla, 1975-NMCA-084, 88 N.M. 160, 538 P.2d 802, cert. denied, 88 N.M. 318, 540 P.2d 248. Judge errs in leaving courtroom during offer. - Where evidence should have been presented to the court, a trial judge errs in leaving the courtroom during the offer of proof, even though she believes it to be immaterial to her decision and offered only for the record. Malibu Pools of N.M., Inc. v. Harvard, 1981-NMSC-117, 97 N.M. 106, 637 P.2d 537. Denial of offered polygraph expert's testimony improper. - It was an abuse of discretion to exclude polygraph evidence without permitting defendant's offer of proof or listening to the tape of the pretest interview. State v. Aragon, 1993-NMCA-076, 116 N.M. 291, 861 P.2d 972. IV. PLAIN ERROR. Generally as to former law. - New Mexico law prior to adoption of the present rules of evidence did not allow review of unpreserved plain error. State v. Tucker, 1974-NMCA-049, 86 N.M. 553, 525 P.2d 913, cert. denied, 86 N.M. 528, 525 P.2d 888. Application of plain error rule. - An appellate court may review evidentiary questions, although not preserved, if the admission of evidence affected the substantial rights of the accused; the appellate court must be convinced that admission of the evidence constituted an injustice that created grave doubts concerning the verdict. State v. Montoya, 2015-NMSC-010. Where defendant was convicted of intentional child abuse resulting in the death of a child under the age of twelve, the admission of the forensic pathologist's testimony was not plain error when the expert identified the injuries suffered by the child, was specific in stating that the injuries together were the cause of death, made no assertions that defendant caused the injuries, and there was ample evidence outside of the expert's testimony to support the jury's finding of guilt. State v. Montoya, 2015-NMSC-010. "Plain error" construed. - "Plain error" refers to grave errors which seriously affect substantial rights of the accused, result in a clear miscarriage of justice or are obvious or otherwise seriously affect the fairness, integrity or public reputation of judicial proceedings. The plain error rule should be applied with caution and invoked only to avoid a miscarriage of justice. State v. Marquez, 1974-NMCA-129, 87 N.M. 57, 529 P.2d 283, cert. denied, 87 N.M. 47, 529 P.2d 273. To the extent that New Mexico common law has stated or intimated that the plain error rule "applies only to errors in evidentiary rulings" it is overruled; the plain error rule hereafter applies to "evidentiary matters" in general, regardless of their specific preservation for appeal. State v. Lucero, 1993-NMSC-064, 116 N.M. 450, 863 P.2d 1071. Plain error must relate to evidentiary ruling. - Reference in this section to plain errors affecting substantial rights is part of a rule concerned with evidentiary rulings and is inapplicable to criminal defendant's contention that prosecutor's reference to victim's "constitutional rights" was prejudicial and influenced jury. State v. Sanchez, 1974-NMCA-107, 86 N.M. 713, 526 P.2d 1306(construing rule despite its inapplicability to present case); State v. Hennessy, 1992-NMCA-069, 114 N.M. 283, 837 P.2d 1366. Doubts concerning validity of verdict required. - Even if defendant did not raise proper objections at trial, he may be entitled to relief if the errors of which he complains on appeal constituted plain error. In any case, the appellate court must be convinced that admission of the testimony constituted an injustice that creates grave doubts concerning the validity of the verdict. State v. Barraza, 1990-NMCA-026, 110 N.M. 45, 791 P.2d 799; State v. Contreras, 1995-NMSC-056, 120 N.M. 486, 903 P.2d 228. Plain error analysis. - When assessing the probable effect of evidentiary error, courts should evaluate all of the circumstances surrounding the error, including the source of the error, the emphasis placed on the error, evidence of the defendant's guilt apart from the error, the importance of the erroneously admitted evidence to the prosecution's case, and whether the erroneously admitted evidence was merely cumulative. State v. Astorga, 2015-NMSC-007. No plain error where prosecutor improperly questioned witness about defendant's involvement in another murder. - Where prosecutor's question of an alibi witness in a first-degree murder trial improperly referred to the witness's prior statement alluding to defendant's suspected involvement in a prior homicide, there was no plain or fundamental error where the prior statement, although improperly admitted, was relevant to the witness's credibility, the single question and answer was the only reference to the prior statement during the trial that lasted more than two weeks and included abundant evidence of the defendant's guilt. State v. Astorga, 2015-NMSC-007. Use of psychological evaluation created as part of plea negotiations was error, but did not rise to the level of plain error. - In defendant's trial for criminal sexual penetration of a minor, criminal sexual contact of a minor, and bribery of a witness, where the district court allowed the State to impeach defendant with a psychological evaluation, created and given to the State as part of plea negotiations, that contained statements that contradicted defendant's testimony during direct examination and statements seeming to admit to the alleged acts, and where defendant's trial counsel failed to object to the State's use of the evaluation as impeachment evidence, the district court erred in allowing the State to use the evaluation, because Rule 11-410(A)(5) NMRA prohibits using statements made during plea discussions for either substantive or impeachment purposes. The error in allowing the State to use the evaluation, however, did not rise to the level of plain error, because defendant had an opportunity to explain the answers contained in the evaluation, the evaluation itself was not introduced as an exhibit and was not provided to the jury, and did not create grave doubts about the validity of the verdict against defendant. State v. Miera, 2018-NMCA-020. Comment on defendant's silence plain error. - In defendant's murder trial, there being no basis for a question concerning defendant's silence, district attorney's question about it was plain error because it constituted a comment on defendant's silence, and the fact that the question was asked of the brother and not defendant makes no difference, since the prejudicial impact was the same. State v. Lara, 1975-NMCA-095, 88 N.M. 233, 539 P.2d 623. Comments instituted by the state on a defendant's silence following Miranda warnings constitute "plain error" and have an intolerable prejudicial impact requiring reversal unless the defendant's silence has a significant probative value. State v. Martin, 1984-NMSC-077, 101 N.M. 595, 686 P.2d 937. Comment on defendant's silence plain error only if prosecution initiates comment. - Where prosecutor comments on or inquires about defendant's silence, such a reference can have an intolerable prejudicial impact and may require reversal under the plain error rule; any reference to defendant's silence by the state, if it lacks significant probative value, constitutes plain error and as such requires reversal even if defendant fails to object. However, where witness refers to defendant's silence, defendant must object to this testimony in order to preserve the error. State v. Baca, 1976-NMSC-015, 89 N.M. 204, 549 P.2d 282. There is not plain error where prosecution's questions were invited by defendant's testimony on direct examination and did not directly concern his post-arrest silence. State v. Molina, 1984-NMSC-038, 101 N.M. 146, 679 P.2d 814. No plain error where admissible evidence to same effect. - Admission of hearsay testimony of owner of certain stolen property, in a prosecution for possession thereof, as to its worth was not plain error since even without the hearsay, testimony from another witness as to market value supported a valuation of stolen property in excess of $100 and therefore a felony conviction, so no prejudice was shown. State v. Olguin, 1975-NMCA-132, 88 N.M. 511, 542 P.2d 1201. In proceeding to terminate mother's parental rights, where the record was insufficient to determine whether the mother, who was mentally impaired, had waived any privilege she may have had with regard to communications made to her psychologist, and since the waiver issue was not raised at the trial level, under the plain error rule the court's order terminating parental rights was upheld on the grounds that there was clear and convincing evidence other than the allegedly confidential testimony supporting the determination that the mother was an unfit parent. In re Sherry C., 1991-NMCA-137, 113 N.M. 201, 824 P.2d 341. Erroneous admission of expert witness's testimony did not result in plain error. - Where defendant was charged with vehicular homicide after crashing her car while intoxicated, and where the district court erred in admitting the testimony of the State's expert witness because, although the State's expert was qualified to testify as an accident reconstruction expert, the expert's testimony, standing alone, did not provide a basis for any meaningful evaluation of whether the expert's ultimate opinion, that defendant was driving the vehicle at the time of the crash, was a result of the application of a reliable scientific method, the erroneous admission of expert testimony did not result in plain error because the expert's opinion was not the sole or primary item of evidence indicating defendant's guilt. Viewed against the independent evidence of defendant's guilt, the expert's opinion did not likely affect the outcome of the jury's deliberations. State v. Bregar, 2017-NMCA-028, cert. denied. No plain error in admission of testimony related to photographic evidence. - Where defendant was charged with two counts of manufacturing child pornography and one count of possession of child pornography, and where the trial court admitted testimony from the investigating officer regarding his conclusion, based on comparisons between a male participant in videos found on defendant's cellphone depicting the man and a sixteen-year-old girl engaging in sexual intercourse and photographs of defendant's torso, that defendant was the male participant in the videos, the trial court did not commit plain error in admitting the evidence, because the officer did not modify any of the images presented to the jury and the officer's testimony regarding screenshots of the videos were a means of presenting evidence to the jury rather than the creation of new evidence that would necessitate qualification as expert opinion. State v. Gwynne, 2018-NMCA-033, cert. denied. No plain error in admission of testimony that is helpful in determining a fact in issue. - Where defendant was charged with two counts of manufacturing child pornography and one count of possession of child pornography, and where the trial court admitted testimony from the investigating officer regarding his conclusion, based on comparisons between a male participant in videos found on defendant's cellphone depicting the man and a sixteen-year-old girl engaging in sexual intercourse and photographs of defendant's torso, that defendant was the male participant in the videos, the trial court did not commit plain error by allowing the officer to testify regarding the videos, because the videos in question were dark and grainy and were not clear when viewed on a computer monitor and the officer's testimony was admissible as opinion testimony because it was helpful in determining a fact in issue, i.e., the identity of the male participant in the videos. State v. Gwynne, 2018-NMCA-033, cert. denied. No plain error in admission of officer's passing mention of another "victim". - Where defendant was charged with two counts of manufacturing child pornography and one count of possession of child pornography, and where, during cross-examination, the investigating officer mentioned that a report contained the name of another "victim" that was not involved in this case, plain error did not occur, because the statement was inadvertent and spontaneous and the error did not affect the substantial rights of defendant. State v. Gwynne, 2018-NMCA-033, cert. denied. Expert witness's testimony did not affect a substantial right of defendant. - In defendant's trial for criminal sexual contact of a minor (CSCM) and intimidation of a witness, where the State's first witness was qualified, without objection, as an expert in forensic interviewing, it was not plain error to allow the witness to testify regarding the child's inability to remember certain details during the child's deposition, because in this case, the jury heard the child's statements about what happened directly from the child through his videotaped deposition, and the jury had the independent opportunity to observe the child's behaviors and the full context in which he could not remember certain details; the admission of the expert's testimony did not affect a substantial right of defendant or create grave doubts concerning the validity of the CSCM and intimidation verdicts. State v. Luna, 2018-NMCA-025, cert. denied. No plain error where proposed evidence circumstantial, collateral and cumulative. - Where two eyewitnesses called by the state, along with testimony of defendant, established that deceased and his friend were the aggressors, there was no other purpose for which additional evidence of decedent's misconduct could be introduced, and additional evidence would be circumstantial, collateral and merely cumulative; as such, its admission rested within the sound discretion of the trial court, and exclusion thereof would not have affected a substantial right of defendant. State v. Marquez, 1974-NMCA-129, 87 N.M. 57, 529 P.2d 283, cert. denied, 87 N.M. 47, 529 P.2d 273. No plain error where admissibility decision conforms with rules. - Exclusion of uncorroborated testimony of defense witness, who would have testified that a third party, prior to his death, told witness that the heroin was his and not defendant's, was not plain error since the policy behind Rule 11-804 NMRA is to require corroboration in order to circumvent fabrication. State v. Anaya, 1976-NMCA-055, 89 N.M. 302, 551 P.2d 992. Allowing evidence of a prior conviction contrary to Rule 11-609 does not constitute plain error where defendant did not state the grounds of his objection. State v. Cardona, 1974-NMCA-052, 86 N.M. 373, 524 P.2d 989, cert. denied, 86 N.M. 372, 524 P.2d 988. No plain error where alternative means of achieving admission not used. - Defendant's claim on appeal that admission of chemist's testimony concerning test results was plain error because chemist did not bring his worksheets to court, thus denying defendant the right to cross-examine concerning underlying facts, was without merit since defendant could have but did not inform himself of the contents of the worksheets by proceeding under Rule 27(a)(6), N.M.R. Crim. P. (now see Rule 5-501 NMRA). State v. Carrillo, 1975-NMCA-103, 88 N.M. 236, 539 P.2d 626. No plain error where prosecutor's remarks in closing were not evidence. - The principle of plain error applies only to error in the presentation of evidence. Thus, while the prosecutor's questioning of defendant could be analyzed as plain error, the prosecutor's remarks in closing regarding the defendant's silence were not evidence and therefore were not subject to a plain error analysis. State v. Hennessy, 1992-NMCA-069, 114 N.M. 283, 837 P.2d 1366. Preclusion of right to cross-examination. - Under the proper circumstances, preclusion of the right to cross-examine may be plain error requiring reversal despite the lack of objection or offer of proof. Empire West Cos. v. Albuquerque Testing Labs, Inc., 1990-NMSC-096, 110 N.M. 790, 800 P.2d 725. Termination of cross-examination did not rise to the level of plain error requiring reversal, where party had the opportunity to exercise extensively that right without substantial interference and no prejudice or substantial miscarriage of justice appeared from the record. Empire West Cos. v. Albuquerque Testing Labs, Inc., 1990-NMSC-096, 110 N.M. 790, 800 P.2d 725. Judge's questioning of witness. - Where a judge exceeded the bounds of Rule 11-614 NMRA, in questioning a witness and commenting upon the evidence, she substantially conveyed a position concerning the issues before the jury and the fairness of the trial was vitiated to the extent that it constituted plain error. State v. Paiz, 1999-NMCA-104, 127 N.M. 776, 987 P.2d 1163. Exclusion of a witness' grand jury testimony was not plain error where the exclusion did not hamper defendant's right to put forth her defense, nor taint the validity of the verdict rendered in the case. State v. Baca, 1997-NMSC-045, 124 N.M. 55, 946 P.2d 1066. Violation of Rule 104 (now 11-104 NMRA) is not plain error where violation did not result in miscarriage of justice nor affect the fairness or integrity of the trial. State v. Gallegos, 1978-NMCA-121, 92 N.M. 336, 587 P.2d 1347. Plain error pertains only to errors that concern evidentiary rulings. State v. Wall, 1980-NMSC-034, 94 N.M. 169, 608 P.2d 145; State v. Isiah, 1989-NMSC-063, 109 N.M. 21, 781 P.2d 293. Defendant cannot challenge memorandum on appeal where no objection at trial. - On appeal, defendant cannot challenge the use of a memorandum at trial to refresh the memory of a witness when he made no objection to its use at the time and since he cannot challenge it as plain error pursuant to Paragraph D. State v. Wall, 1980-NMSC-034, 94 N.M. 169, 608 P.2d 145. Law reviews. - For article, "Civil Procedure," see 12 N.M.L. Rev. 97 (1982). For article, "Criminal Procedure," see 12 N.M.L. Rev. 271 (1982). Am. Jur. 2d, A.L.R. and C.J.S. references. - 5 Am. Jur. 2d Appellate Review §§ 622, 713 et seq.; 58 Am. Jur. 2d New Trial §§ 129, 131, 132; 75 Am. Jur. 2d Trial § 321 et seq. Construction of provision of Rule 43(c) of the Federal Rules of Civil Procedure, and similar state provisions providing for entry into record of evidence excluded by trial court, 9 A.L.R.3d 508. Violation of federal constitutional rule (Mapp v. Ohio) excluding evidence obtained through unreasonable search or seizure, as constituting reversible or harmless error, 30 A.L.R.3d 128. 4 C.J.S. Appeal and Error § 202 et seq.; 66 C.J.S. New Trial § 40; 88 C.J.S. Trial §§ 115, 117, 123, 133, 144 to 146.