N.M. R. Evid. 11-104
N.M. R. Evid. 11-104
Committee commentary. - The language of Rule 11-104 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 1993 amendment, effective December 1, 1993, added "or when an accused is a witness and so requests" at the end of Paragraph C, and substituted "court" for "judge" and made gender neutral changes throughout the rule. Compiler's notes. - This rule is similar to Rule 104 of the Federal Rules of Evidence. Failure to timely provide discovery. - Where, in an insurance bad faith case, the insured failed to comply with the district court's scheduling order and failed to disclose the substance and grounds for an expert's proposed testimony; the insured never provided the insurer an expert report; the insured submitted a witness list that did not include the expert's professional qualifications or a summary of the expert's anticipated testimony; the insured furnished the expert's affidavit and curriculum vitae belatedly as an attachment to the insured's response to the insurer's motion for summary judgment; the expert's affidavit recounted the expert's background and experience of decades examining insurance bad faith cases, and indicated that the expert had reviewed the pleadings, documents, and depositions in the case; the insured furnished the affidavit to the insurer more than a month before trial and a month after the close of discovery; and the district court ordered the insured to make the expert available for a pre-trial deposition and to pay the costs of the deposition, the district court did not err in denying the insurer's motion to exclude the testimony of the insured's expert at trial. Am. Nat'l. Prop. & Cas. Co. v. Cleveland, 2013-NMCA-013, 293 P.3d 954. The scientific aspects of a breathalyzer machine are foundational issues. - The scientific reliability and functionality of a breathalyzer machine, which are foundational issue that are only subject to challenge through expert testimony, are non-testimonial facts and do not implicate the confrontation clause. State v. Anaya, 2012-NMCA-094, 287 P.3d 956, cert. denied, 2012-NMCERT-007. Scientific accuracy and reliability of a breathalyzer machine. - Where the court admitted the results of defendant's breath alcohol test results after police officers testified regarding the procedure for administering defendant's breathalyzer test, the regulations and procedures for certifying and calibrating the breathalyzer machine, the officers' belief that the breathalyzer machine was working properly and that the test was properly administered, and the officers' certification to administer breathalyzer tests and experience administering breathalyzer tests; the officers testified that they had no knowledge of the breathalyzer machine's inner workings; and defendant claimed that defendant's confrontation rights had been violated because the breath test results had been admitted without testimony from a witness, whom defendant could cross-examine, as to the scientific accuracy and reliability of the breathalyzer machine, the confrontation clause did not apply because the scientific aspects of the breathalyzer machine are non-testimonial facts. State v. Anaya, 2012-NMCA-094, 287 P.3d 956, cert. denied, 2012-NMCERT-007. Parol evidence rule did not prevent enforcement of premium payment agreement. - Where the insurer required policyholders who wanted to pay premiums in monthly installments to enter into a premium payment agreement with a separate corporation before the insurer would issue a policy that allowed monthly payments; the payee corporation imposed a monthly service charge to cover the increased costs of monthly billing and payment; the policy issued by the insurer did not specify any service charge to be paid by policyholders who bought insurance on a monthly basis; although the policy declaration provided that no fees were payable with respect to the policy, it referred to the premium payment agreement with the payee corporation; and the policy included a merger clause and an endorsement amending the policy period to one calendar month, continuing for successive monthly periods if the premium was paid when due, the policy was only partially integrated and the parol evidence rule did not prevent the proof and enforcement of the premium payment agreement. Nellis v. Farmers Ins. Co. of Ariz., 2012-NMCA-020, 273 P.3d 143, cert. denied, 2011-NMCERT-011. Admissibility of confessions to establish the corpus delicti. - The district court should determine at a preliminary hearing whether the state has evidence that supports the essential facts admitted in a defendant's confession. First, the court assesses whether the confession's trustworthiness may be established by the state. Second, the court must ensure that the state has evidence that can corroborate the existence of the alleged loss or injury. At the preliminary hearing, the court can use inadmissible evidence to determine the trustworthiness of a confession. Admission of the confession at trial is conditioned upon the state adducing independently admissible evidence at trial that can contribute to establishing the corpus delicti. At the preliminary hearing, the court should determine whether the state can provide admissible evidence supporting the corpus delicti. State v. Hardy, 2012-NMCA-005, 268 P.3d 1278, cert. granted, 2012-NMCERT-001. Sufficient foundation for BAT card admissibility. - The arresting officer's testimony that he saw a certification sticker on the breathalyzer indicating that the machine's certification was current was sufficient foundation for the breath alcohol test card's admissibility. State v. Martinez, 2007-NMSC-025, 141 N.M. 713, 160 P.3d 894, overruling State v. Lizzol, 2006-NMCA-130, 141 N.M. 403, 156 P.3d 694. Confirmation that SLD has approved the equipment on a breath alcohol instrument is not a foundational prerequisite to admission of BAT results. - The State need not make a threshold showing that the certified operator of a certified breath alcohol instrument confirmed at the time of the test that equipment attached to the breath alcohol instrument is approved by the Scientific Laboratory Division of the Department of Health (SLD) in order to lay a sufficient foundation under Rule 11-104(A) NMRA for the admission into evidence of breath alcohol test (BAT) results. SLD regulations contain no requirement that SLD or certified instrument operators must confirm that each individual tank and its contents are SLD-approved before a BAT is administered. The regulations contain no indication that such individual confirmation is necessary to ensure the accuracy of a BAT result. State v. Hobbs, 2016-NMCA-022, cert. denied, 2016-NMCERT-002. Where defendant challenged the admission of his breath alcohol test (BAT) results at trial on the ground that they lacked a sufficient foundation to support their admission into evidence because the certified instrument operator failed to establish that the gas canister, a piece of equipment separate from the breath alcohol instrument, complied with "accuracy ensuring" regulations, the trial court did not abuse its discretion in admitting defendant's BAT results into evidence because the State is not required to make a threshold showing that the certified operator of a certified breath alcohol instrument confirmed at the time of the test that equipment attached to the instrument is SLD-approved in order to lay a sufficient foundation under Rule 11-104(A) NMRA for the admission of BAT results into evidence. State v. Hobbs, 2016-NMCA-022, cert. denied, 2016-NMCERT-002. Evidence may be conditionally admitted. - Subsection B of this Rule permits evidence to be conditionally admitted at trial, contingent upon a subsequent showing of relevancy. State v. Garnenez, 2015-NMCA-022, cert. denied, 2015-NMCERT-001. Where laboratory analyst in DWI trial testified about breath alcohol tests (BAT) before the BAT results were admitted through another witness due to logistical issues, the district court did not abuse its discretion in admitting this evidence prior to the state laying a proper foundation for admission of the BAT results because it is within the district court's discretion to control the order of witnesses, mode of interrogating witnesses, and presentation of evidence. State v. Garnenez, 2015-NMCA-022, cert. denied, 2015-NMCERT-001. Prerequisites for evidentiary hearing. - To be entitled to evidentiary hearing under former law, defendant must have alleged a factual basis for relief; vague conclusional charges are insufficient. Further, defendant's claims must raise issues which cannot be conclusively determined from files and records, and claims must be such, that if true, provide a legal basis for relief sought. State v. Kenney, 1970-NMCA-038, 81 N.M. 368, 467 P.2d 34. Competency of child at a meaningful time. - Where a defendant was charged with criminal sexual contact and sexual penetration of a child under the age of 13, and the determination of the child's competency by the district court was made without adequate inquiry into the elements of competency at a meaningful time, the appropriate remedy was to remand for a competency hearing. State v. Macias, 1990-NMCA-053, 110 N.M. 246, 794 P.2d 389. Trial court's duty to decide issues relating to scientific evidence. - Contested factual issues on the admissibility of scientific evidence, and of polygraph examinations in particular, are factual determinations to be made by the trial court. Baum v. Orosco, 1987-NMCA-102, 106 N.M. 265, 742 P.2d 1. The argument that since there were conflicting opinions regarding the reliability of the polygraph evidence, the trial court abused its discretion in excluding the evidence was clearly specious. It is the role of the trial court to resolve such conflicts, and it is the very essence of discretion to make such a resolution and determination. Baum v. Orosco, 1987-NMCA-102, 106 N.M. 265, 742 P.2d 1. Consideration of hearsay. - Paragraph A authorizes consideration of hearsay in determining preliminary questions of admissibility. State v. Roybal, 1988-NMCA-040, 107 N.M. 309, 756 P.2d 1204. Police officer's testimony regarding verification of a telephone call made to an embezzlement victim was a preliminary matter within the meaning of Paragraph A. State v. Roybal, 1988-NMCA-040, 107 N.M. 309, 756 P.2d 1204. Relevancy conditioned on fact. - 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. Prohibiting jury viewing of films admitted into evidence held improper. - The determination of whether evidence is relevant, and therefore admissible, rests within the discretion of the trial court but admitting films into evidence, thereby determining that they were relevant, and then not allowing the jury to view them, constituted an improper limitation on defendant's right to present evidence to the jury. State v. Martin, 1984-NMSC-077, 101 N.M. 595, 686 P.2d 937. Doctor's letter on paternity. - Exclusion of a letter written by a doctor summarizing his conclusions of paternity test results, together with the statistical probability calculations based on the serologic tests performed was proper since a proper foundation had not been established for the documents admission. State v. Leal, 1986-NMCA-075, 104 N.M. 506, 723 P.2d 977. Foundation for admitting telephone conversations. State v. Garcia, 1990-NMCA-065, 110 N.M. 419, 796 P.2d 1115. Voir dire of police officer in presence of jury on admissibility of defendant's inculpatory statements violates Paragraph C. State v. Gallegos, 1978-NMCA-121, 92 N.M. 336, 587 P.2d 1347. "Preliminary matters" refer to evidentiary issues that are decided by the judge. State v. Delgado, 1991-NMCA-064, 112 N.M. 335, 815 P.2d 631. Testimony "upon a preliminary matter". - Testimony presented to the jury for its consideration is not testimony "upon a preliminary matter". State v. Delgado, 1991-NMCA-064, 112 N.M. 335, 815 P.2d 631. Applicability of Paragraph D. - Paragraph D does not apply unless the testimony relates solely to a preliminary matter. State v. Delgado, 1991-NMCA-064, 112 N.M. 335, 815 P.2d 631. All that Paragraph D provides is that when the defendant's testimony is limited to the purpose of assisting the judge in determining whether evidence should be admissible, the defendant is not subject to cross-examination on other issues. State v. Delgado, 1991-NMCA-064, 112 N.M. 335, 815 P.2d 631. Law reviews. - For article, "The Admissibility of Scientific Evidence Under the New Mexico and Federal Rules of Evidence," see 6 N.M.L. Rev. 187 (1976). For article, "Evidence," see 12 N.M.L. Rev. 379 (1982). For annual survey of New Mexico law of evidence, 19 N.M.L. Rev. 679 (1990). For note, "The Admission of Polymerase Chain Reaction DNA Evidence in New Mexico - State v. Sills," see 29 N.M.L. Rev. 429 (1999). Am. Jur. 2d, A.L.R. and C.J.S. references. - 4 Am. Jur. 2d Appellate Review § 523; 5 Am. Jur. 2d Appellate Review § 601; 75 Am. Jur. 2d Trial §§ 324, 413, 414, 418; 75A Am. Jur. 2d Trial §§ 741, 742. Requisite foundation or predicate to permit nonexpert witness to give opinion, in a civil action, as to sanity, mental competency or mental condition, 40 A.L.R.2d 15. Mode and degree of proof required to establish genuineness of handwriting offered as standard or exemplar for comparison with a disputed writing or signature, 41 A.L.R.2d 575. Qualifications of chemist or chemical engineer to testify as to effect of poison upon human body, 70 A.L.R.2d 1029. Competency, as a standard of comparison to establish genuineness of handwriting, of writings made after controversy arose, 72 A.L.R.2d 1274. Qualification as expert to testifying as to findings or results of scientific test to determine alcoholic content of blood, 77 A.L.R.2d 971. Qualification of nonmedical psychologist to testify as to mental condition or competency, 78 A.L.R.2d 919. Testing qualifications of expert witness, other than handwriting expert, by objective tests or experiments, 78 A.L.R.2d 1281. Constitutional aspects of procedure for determining voluntariness of pretrial confession, 1 A.L.R.3d 125, 132 A.L.R. Fed. 415. Preliminary proof, verification, or authentication of X-rays requisite to their introduction in evidence in civil cases, 5 A.L.R.3d 303. Admissibility, in civil case, of evidence obtained by unlawful search and seizure, 5 A.L.R.3d 670. Necessity of laying foundation for opinion of attesting witness as to mental condition of testator or testatrix, 17 A.L.R.3d 503. Admissibility of confession by one accused of felonious homicide, as affected by its inducement through compelling, or threatening to compel, accused to view victim's corpse, 27 A.L.R.3d 1185. Admissibility of evidence of lineup identification as affected by allegedly suggestive lineup procedures, 39 A.L.R.3d 487. Admissibility of evidence of showup identification as affected by allegedly suggestive showup procedures, 39 A.L.R.3d 791. Admissibility of evidence of photographic identification as affected by allegedly suggestive identification procedure, 39 A.L.R.3d 1000. "Fruit of the poisonous tree" doctrine excluding evidence derived from information gained in illegal search, 43 A.L.R.3d 385. Censorship and evidentiary use of unconvicted prisoners' mail, 52 A.L.R.3d 548. Admissibility in criminal prosecution, of evidence obtained by electronic surveillance of prisoner, 57 A.L.R.3d 172. Omission or inaudibility of portions of sound recording as affecting its admissibility in evidence, 57 A.L.R.3d 746. Admissibility of videotape film in evidence in criminal trial, 60 A.L.R.3d 333, 41 A.L.R.4th 812, 41 A.L.R.4th 877. Mental subnormality of accused as affecting voluntariness or admissibility of confession, 8 A.L.R.4th 16. Sufficiency of showing that voluntariness of confession or admission was affected by alcohol or other drugs, 25 A.L.R.4th 419. Admissibility and weight of extrajudicial or pretrial identification where witness was unable or failed to make in-court identification, 29 A.L.R.4th 104. Sufficiency of corroboration of confession for purpose of establishing corpus delicti as question of law or fact, 33 A.L.R.5th 571. Admissibility of evidence of voice identification of defendant as affected by allegedly suggestive voice lineup peocedures, 55 A.L.R.5th 423. Admissibility of evidence relating to accused's attempt to commit suicide, 73 A.L.R.5th 615. Admissibility of hearsay evidence for court's determination, under Rule 104(a) of the Federal Rules of Evidence, of preliminary questions of fact, 39 A.L.R. Fed. 720. Error in evidentiary ruling in federal civil case as harmless or prejudicial under Rule 103(a), Federal Rules of Evidence, 84 A.L.R. Fed. 28. Duty of court, in federal criminal prosecution, to conduct inquiry into voluntariness of accused's statement - modern cases, 132 A.L.R. Fed. 415. 4 C.J.S. Appeal and Error §§ 202, 207, 217; 5 C.J.S. Appeal and Error § 824; 88 C.J.S. Trial §§ 97, 273.