This chapter covers:

• Application of the rules of evidence to courts and proceedings.
• Construction of the rules of evidence.
• General principles of evidence.
• Relevancy of evidence.
• Application of the rules of evidence to specific topics.
• Witness testimony.
• Hearsay, including the general rule, the exceptions to the rule, and constitutional limitations.
• Privileges that exempt potential witnesses from having to testify.

10.1 Overview

This chapter provides an introductory explanation of basic evidence principles as used by municipal courts in New Mexico. Evidence is information used to prove or disprove a fact of consequence in litigation, both civil and criminal. A fact of consequence is a fact that must be proved to prevail or that is essential to establish a defense. The rules of evidence are aimed at ensuring a certain degree of usefulness and trustworthiness in the information offered in a trial or hearing.

The New Mexico Rules of Evidence, adopted by the state Supreme Court, are found in Judicial Pamphlet 11 of the New Mexico Statutes Annotated. These rules are followed by numerous case annotations illustrating their application. Some of these annotations are used as examples in this outline. Many treatises and casebooks are available for more comprehensive instruction in the rules and use of evidence.

Judges should consult the applicable New Mexico rules for the complete text of the evidentiary standard and not rely solely on this chapter for interpretation of the rules.

10.2 Application of the Rules of Evidence

10.2.1 Courts
The rules of evidence apply to all courts in the state, including municipal, magistrate, metropolitan, probate, district and appellate courts, and to commissioners, masters, referees and child support hearing officers appointed by the court. Rule 11-1101(A).

10.2.2 Proceedings
The rules apply to civil and criminal proceedings, and to non-summary contempt proceedings. Rule 11-1101(B).

Note: The court may act summarily—without notice and a separate hearing—in cases of direct contempt. Direct contempt occurs where the contemptuous behavior is committed in the presence of the court and is seen or heard by the judge, and must be dealt with immediately in order to restore the order, dignity, and authority of the court.

The evidence rules do not apply to:

• Preliminary questions of fact determined by the court prior to admission of evidence. Rule 11-1101(D)(1).
• Some miscellaneous proceedings: extradition or rendition; sentencing by the court without a jury; granting or revoking probation; issuance of warrants for arrest, criminal summonses and search warrants; proceedings for release on bail; dispositional hearings in Children’s Court proceedings; and issuance of ex parte custody orders, custody hearings, permanency hearings and judicial reviews in abuse and neglect proceedings. Rule 11-1101(D)(2).

The rules on privilege apply at all stages of all actions, cases and proceedings. Rule 11-1101(C).

10.2.3 Types of Evidence
The evidence rules apply to all types of evidence: testimony of witnesses, real evidence (an object which has a direct or indirect part in the incident), and demonstrative evidence (visual aids such as models, maps, charts and demonstrations).

10.3 Construction of the Rules of Evidence
Judges have a great deal of discretion in ruling on the admissibility of evidence. In doing so, judges are guided by the overall philosophy expressed in Rule 11-102:

“These rules shall be construed to secure fairness in administration, elimination of unjustifiable expense and delay and promotion of growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined.”

10.4 General Principles of Evidence

10.4.1 Overall
The goal of the rules of evidence is the introduction of relevant, reliable and material information for use in determining issues. The fact finder must evaluate the evidence to determine its credibility. Evidence that is relevant, reliable and material may be excluded if it will create unfair prejudice, confusion or a waste of time, or if public policy (as expressed in the rules of evidence) mandates exclusion.

10.4.2 Preliminary Questions
The court determines preliminary issues, such as the qualification of a person to be a witness, the existence of a privilege or the admissibility of evidence. Rule 11-104.

For example, a defendant who testifies on a preliminary matter, such as the admissibility of certain evidence, does not become subject to cross-examination on other issues in the case. The defendant retains the Fifth Amendment protection against self-incrimination. Rule 11-104(D).

10.4.3 Original Writing Rules
Photocopies or duplicates are admissible unless the authenticity of the original is questioned or under the circumstances it would be unfair to admit the duplicate in lieu of the original. Rules 11-1002, 11-1103.

The original writing rule was developed to guard against fraud and inaccuracy in duplication. The rule has broadened to reflect modern reliance on sophisticated duplication techniques and data storage mechanisms. There is no overall rule of evidence that a party must produce the "best evidence" available in a case.

10.4.4 Full Use of Writings
If one party introduces a writing or recorded statement, an adverse party may require the introduction of any other part of the writing or any other writing or recorded statement that in fairness ought to be considered with it. Rule 11-106.

The purpose of this rule is to admit other recorded statements that place in context writings, which, if viewed alone, may be misleading. State v. Carr, 95 N.M. 755, 626 P.2d 292 (Ct. App. 1981).

In cases involving the same document, this rule applies only to other parts of the document, which are relevant and shed some light on the admitted parts. State v. Case, 103 N.M. 574, 711 P.2d 19 (Ct. App. 1985).

10.4.5 Judicial Notice
The court may take judicial notice of a fact (i.e. accept as established) which commonly is known to be true without the need for evidence. The fact must be either generally known within the community or capable of determination by reference to sources with known accuracy. Rule 11-201. The purpose of this rule is to save the time and expense of proving self-evident or well-established facts. For example, the court may take judicial notice of a statutory provision.

Cattle guards are common objects in New Mexico cattle country and courts can take judicial notice of their nature by appropriate books or documents of reference. Williams v. New Mexico State Hwy. Comm'n, 82 N.M. 550, 484 P.2d 770 (Ct. App. 1971).

The cause of leaking pipes is not a matter of such common knowledge that the court could properly have taken judicial notice thereof. Horton v. Driver-Miller Plumbing, Inc., 76 N.M. 242, 414 P.2d 210 (1966).

10.5 Relevancy

10.5.1 Admission in General
Relevant evidence means evidence that has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Rule 11-401.

Relevancy is the fundamental basis for admission for any evidence. Evidence that is not relevant is not admissible, for it would have no use in proving anything at issue. Evidence that is relevant is admissible unless otherwise provided by law.

Generally, whatever naturally and logically tends to establish a fact at issue is relevant. The logical relevance of the evidence need be only minimal to be admissible. Since the evidence must have "any tendency" to establish the fact, the evidence in itself need not be sufficient to persuade the judge or jury that the fact is more probably true than not.

The amount of money in the defendant's possession upon arrest, a short distance and in a short period of time after cashing a forged check, certainly tended to throw light on the criminal transaction and was therefore admissible as evidence. State v. Belcher, 83 N.M. 130, 489 P.2d 410 (Ct. App. 1971).

An explanation of the defendant's prior conviction for commercial burglary was irrelevant to his credibility or to the charges of aggravated burglary, criminal sexual penetration and kidnapping for which he was being tried. State v. Noland, 104 N.M. 537, 724 P.2d 246 (Ct. App. 1986).

10.5.2 Exclusion in General
Relevant evidence is admissible unless excluded by constitution, statute, the New Mexico Rules of Evidence, or other rules adopted by the Supreme Court. Rule 11-402. The rules favor admission of relevant evidence except when certain public policies or practical considerations dictate. For example, Rule 11-404 excludes certain character evidence offered to prove conduct, for while the evidence may have some relevance the risk of unfair prejudice is too great. Other potentially relevant evidence is excluded in order to encourage socially desirable conduct that might not occur if the evidence were admissible. Rules 11-407 (remedial measures taken after an adverse event) through 11-412 (evidence obtained under immunity). The rules on privilege, Rules 11-501 through 11-514, exclude relevant evidence to protect important relationships.

The exclusion of evidence under Rule 11-402 is based on specific legal standards. A judge should refer to the applicable statute or rule to determine the admissibility of the offered evidence.

Evidence also can be ruled inadmissible based on trial concerns. Relevant evidence may be excluded if "its probative value is substantially outweighed by the danger of unfair prejudice . . . or by considerations of undue delay, waste of time or needless presentation of cumulative evidence." Rule 11-403. (“Evidence has ‘probative value’ if it tends to prove an issue” or fact. Black’s Law Dictionary 1203 (6th ed. 1990)). This rule gives the judge a great deal of discretion in admitting or excluding evidence. The judge must balance the persuasive nature of the evidence against the factors enumerated in the rule. The rule applies to all types of evidence.

In a criminal sexual penetration prosecution, the trial court's refusal to hear the testimony of a psychologist who had treated the victim for emotional problems and whose report on the victim had already been introduced into evidence was justified because the testimony would be merely cumulative. State v. Romero, 94 N.M. 22, 606 P.2d 1116 (Ct. App.1980).

A videotape and pictures of the condition and position of the murder victim's body as well as the disarray in the murder scene allowed the jury to draw an inference of a struggle prior to the victim's death and thus were relevant and admissible to show the defendant had intent to kill. State v. Hernandez, 115 N.M. 6, 846 P.2d 312 (1993).

Where the testimony of the seven-year old daughter of a murder victim was relevant, noncumulative and highly probative, the trial court was correct in allowing its admission despite the objection of undue prejudice. State v. Noble, 90 N.M. 360, 563 P.2d 1153 (1977).

10.5.3 Authentication and Identification
Authentication and identification are aspects of relevancy. Evidence must be authenticated or identified in some way to be relevant and admissible. Generally this requirement is met if there is evidence to support a finding that the matter in question is what its proponent claims. Rule 11-901. For example, a nonexpert witness can testify on the genuineness of a person's handwriting based upon familiarity with the handwriting. A witness can identify a voice on the phone based upon familiarity with the voice. Public records may be authenticated by testimony that they are from the public office where items of that nature are kept. In the case of a document, authenticity and identification usually are not an issue unless the document is challenged, which may then require identification by the author or custodian.

Certain documents can be self-authenticated, meaning no other evidence is required to support authenticity. Rule 11-902. Examples include public documents under seal, certified copies of public records, official publications, newspapers and magazines, and documents declared to be authentic by statute.

10.6 Evidence on Specific Topics

10.6.1 Character Evidence
Character is a person's nature, general disposition, or specific disposition on traits such as honesty, peacefulness and truthfulness. Evidence of a person's character is not admissible to prove that the person acted consistently with that character on a particular occasion. Rule 11-404. This is because character evidence often has little probative value and may distract the judge or jury from the main question of what actually occurred in the case in question. This can be a particularly difficult area of evidence for judges and trial lawyers.

Exceptions to the general rule are:

• Character evidence used for impeachment of the truthfulness of witnesses as provided in Rules 11-607 through 11-609 is admissible.
• In a criminal case, evidence of the defendant's character is admissible when offered by the defendant. The prosecution then may introduce evidence of the defendant's character to rebut the defendant’s evidence. The prosecution may not use evidence of the defendant's character unless initially offered by the defendant.
• In a criminal case, the character of the victim is admissible when offered by the defendant. Once admitted, the prosecution may introduce evidence of the victim's character to rebut this evidence.
• Similarly, evidence of other crimes or wrong acts is not admissible to show that a person acted in conformity with this history. This evidence may be admissible for other purposes, however, such as to prove motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.
• Specific instances of a persons' conduct may be admitted in cases where character is an essential element of a charge, claim or defense. Rule 11-405(B).
• The rules of evidence are specific about when character evidence can be used. When character evidence is admissible, it may be proved by testimony on the person's reputation or by an opinion. Once this evidence is allowed, cross-examination of the witness may inquire into specific instances of conduct.

The trial court properly admitted evidence of the defendant's flight from police, where the evidence was used to prove the defendant's identity and consciousness of guilt, not his character. State v. Kenny, 112 N.M. 642, 818 P.2d 420 (Ct. App. 1991).

Testimony of persons having dealings with the defendant similar in nature to the victim's dealings with the defendant was properly admitted to show intent and a common scheme. State v. Schifani, 92 N.M. 127, 584 P.2d 174 (Ct. App. 1978).

Defendant’s seven-year-old confession to similar crimes was not admissible to show defendant’s intent because intent was not a disputed issue in the case. State v. Beachum, 96 N.M. 566, 632 P.2d 1204 (Ct. App. 1981).

10.6.2 Habit Evidence
Habit evidence is admissible. Habit is a person's regular response to a particular situation. Habit is a response that is repeated to the point of becoming semi-automatic, such as always signaling turns in a car. The predictability of the habit bolsters its reliability as evidence that the same response occurred in the current case. Evidence of a person's habit, or an organization's routine practice, is relevant and admissible to prove that the conduct of the person or organization was in conformity with the habit or practice. Rule 11-406. This evidence does not need to be corroborated, nor does it need eyewitnesses. It can be proved by opinion testimony or by specific instances of conduct numerous enough to warrant a conclusion that the habit or practice was routine.

For example, a person's regular practice of taking a bus home from work could be considered in connection with whether the person was a passenger on the bus on the day in question. Evidence of a company's routine manner of handling shipments can be admitted to prove proper handling of a particular shipment.

10.6.3 Remedial Measures
Evidence of remedial measures is not admissible to prove negligence or culpable conduct in connection with an event. Rule 11-407.

Remedial measures are those actions taken after an event which would have made the event less likely to occur if taken earlier. This evidence can be admitted for other purposes, however, such as to prove ownership or control. The policy behind this rule is that corrective actions should not be discouraged for fear of their effect on the jury. Further, the remedial measure may be motivated by a desire to exercise all possible care and may not be evidence of prior negligence.

Examples of remedial actions that are not admissible to show negligence include subsequent repairs, construction of fences around an area, installation of safety devices, changes in the operation of machinery, and warnings about harmful substances.

10.6.4 Guilty Pleas
Evidence of a defendant's offer to plead guilty or no contest to a crime, or any statement made during the plea negotiations, is not admissible against the defendant in any civil or criminal proceeding. Rule 11-410. This rule is intended to promote plea bargaining as part of the orderly administration of criminal justice.

10.6.5 Evidence Obtained Under Immunity
The use of evidence compelled under an order requiring testimony is unlikely to arise in municipal court. Refer to the governing rule, Rule 11-412, when necessary. This rule protects the privilege against self-incrimination by prohibiting the use of evidence against a person compelled by court order to testify.

10.6.6 Victim’s Past Sexual Conduct
In prosecution of sex crimes, evidence of the victim's past sexual conduct is inadmissible unless the court finds that it is material and relevant to the case and that its prejudicial nature does not outweigh its probative value. Admissibility must be decided by a pretrial motion. Rule 11-413. This rule is intended to protect the privacy of victims and lessen the reluctance of victims to report a crime and participate in its prosecution.

Note: This rule will have limited application in municipal courts because most sex crimes are felonies. Included within the rule are several misdemeanors related to indecent exposure, which may come to trial in municipal court. However, evidence of the victim’s past sexual conduct is unlikely to be tendered in these cases.

10.7 Witness Testimony

10.7.1 Basic Requirements
Every person is competent to be a witness unless the rules provide otherwise. Rule 11-601. The two qualifications on this rule are:

• The witness must have personal knowledge of the matter. Rule 11-602.
• The witness must declare by oath or affirmation that the testimony will be truthful. Rule 11-603.

The competency of a witness to testify means that the witness must have some capacity to observe, record, recollect and recount, as well as understand the duty to tell the truth. In determining witness competency, courts generally view the evidence in the light most favorable to the witness and permit the jury to assess the witness's credibility.

The judge may not testify in the case. Rule 11-605.

10.7.2 Questioning of Witnesses
The court must exercise reasonable control over the manner and order of questioning witnesses and presenting evidence in order to promote discovery of the truth, avoid needless time in trial, and protect witnesses from harassment and undue embarrassment. Rule 11-611(A). The court may control the following:

• Cross-examination should be limited to the subject matter of the direct examination and questions affecting the credibility and bias of the witness. The court may permit examination into additional matters. Rule 11-611(B).
• Leading questions (i.e., questions that suggest the answer) should not be used in direct examination unless necessary to develop the witness's testimony or if the witness is hostile, such as identified with the opposing side. Leading questions are permitted on cross-examination. Rule 11-611(C).
• The court may call and interrogate witnesses. Rule 11-614. However, this should be a rare occurrence in criminal cases. In criminal matters, the court should be especially guarded in its questioning of a witness in order to maintain an appearance of impartiality, to avoid the appearance of commenting on the evidence or guilt or innocence of the defendant, and to preserve the prosecution’s burden of proving its case.
• Before introduction of evidence and upon motion of either party or the court, the court shall exclude witnesses so they cannot hear the testimony of other witnesses. Witnesses that may not be excluded include parties to the case, an officer or employee designated as the representative of a party, or a person whose presence is essential to the presentation of a party's case (e.g., an expert witness). Rule 11-615. This rule is intended to prevent witnesses from having their testimony influenced by that of other witnesses. Exclusion of witnesses during trial is often referred to as “invoking the rule.”
• If a witness cannot recall an event while testifying, the witness may use a writing, such as a police report, to refresh his or her memory. The writing is not introduced into evidence just because it has been used in this way. However, if a witness uses a writing to refresh memory for the purposes of testifying, the court may order that the adverse party be allowed to inspect the writing, introduce it, and cross-examine the witness on it. Rule 11-612.

Note: Using a writing to refresh a witness’s memory is different from using a recorded recollection. Once a witness “jogs” his or her memory by reviewing some kind of writing, the witness then testifies in court from his or her refreshed memory - not by reading the writing aloud. By contrast, a recorded recollection is used in lieu of live testimony when a witness is no longer able to recall past events, but was able to record those events at an earlier date. When a recorded recollection is used, the writing is read aloud into evidence.

10.7.3 Impeachment
Impeachment is the process of questioning or attacking the credibility (“believability”) of a witness. The credibility of a witness may be attacked by any party, including the party calling the witness. Rule 11-607. A witness can be impeached, for example, by showing that the witness made prior inconsistent statements, is biased, has a disreputable character, or was unable to observe the events. These questions of a witness's credibility are aimed at assessing the reliability of the testimony. Note that the rules prohibit the use of a witness's religious beliefs to support or impair the witness's credibility. Rule 11-610.

Specific ways in which a witness's credibility may be questioned include:

• Character. If the witness's truthful character has been attacked, the witness's credibility may be questioned by another witness’s opinion on the witness's general character or reputation within the community for truthfulness or untruthfulness. Another witness may not be called to testify, however, on specific instances of conduct by a testifying witness. Such instances may only be inquired about during cross-examination of the testifying witness. Rule 11-608.
• Conviction of a Crime. Evidence of conviction within the last ten years of a crime involving dishonesty or a false statement may be admitted against any witness. Evidence of a felony conviction within the last ten years is admissible on the issue of credibility against any witness. However, a felony conviction is admissible against a defendant only if its probative value outweighs its prejudicial effect. Rule 11-609.

The prosecutor's questioning of the defendant on cross-examination regarding his use of an altered driver's license to carry out forgeries for which he had been convicted was proper to show a specific instance of conduct which was probative of his truthfulness. State v. Clark, 105 N.M. 10, 727 P.2d 949 (Ct. App. 1986).

Questions concerning embezzlement, burglary, auto theft and larceny involve dishonesty, are probative as to truthfulness, and are proper under cross-examination under this rule. State v. Wyman, 96 N.M. 558, 632 P.2d 1196 (Ct. App. 1981).

In a case of battery against a police officer, the prosecution was permitted to question the defendant about his prior misdemeanor conviction for shoplifting on cross-examination because a shoplifting conviction bears on the defendant’s honesty and credibility. State v. Melendrez, 91 N.M. 259, 572 P.2d 1267 (Ct. App. 1977).

• Prior Inconsistent Statements under Oath. A witness may be impeached by a showing that the witness's out-of-court statement under oath is inconsistent with the in-court testimony. When questioning a witness concerning a prior statement, the statement need not be shown to the witness but on request it must be shown to opposing counsel. Extrinsic evidence (i.e., evidence other than the witness's testimony) of a prior inconsistent statement by a witness is not admissible unless the witness has an opportunity to explain or deny the statement, and the opposite party has an opportunity to examine the witness. Rule 11-613.

10.7.4 Opinions and Expert Testimony
Opinions that are helpful to the judge in determining the facts are admissible. As the line between fact and opinion is often difficult to draw, the rules allow witnesses to express opinions as long as they are based on a certain degree of reliability.

• Lay Witnesses. When a witness is not testifying as an expert, any opinions the witness testifies to must be rationally based on the witness's perception, and must be helpful to a clear understanding of the testimony or a fact in issue. Rule 11-701. This means that prior to offering an opinion the witness must lay a foundation establishing personal knowledge of the facts that form the basis of the opinion. The foundation for a lay opinion must establish that the witness was able to observe an event, that the witness actually observed the event, and that the witness observed enough information to form a reliable opinion. For example, before a witness to a car accident may give his or her opinion on the cause of the accident, the testimony must establish that the witness was in sight of the accident scene at the time of the accident, that the witness actually saw the accident from his or her vantage point, and that the witness viewed enough of the accident to form a reliable opinion (e.g., that the witness saw the entire accident from beginning to end).

Where a person has an opportunity to observe the movement of a vehicle, he may give an opinion as to its speed at the time. Dahl v. Turner, 80 N.M. 564, 458 P.2d 816 (Ct. App. 1969).

The plaintiff farmer's opinion that the chemical which admittedly caused damage to two fields of corn was also the cause of the damage to the third, founded on his observation of the fields and rationally based on his own perceptions, was helpful to the causation issue and was admissible. Jesko v. Stauffer Chem. Co., 89 N.M. 786, 558 P.2d 55 (Ct. App. 1976).

• Expert Witnesses. Expert witness testimony is admissible if it is helpful to the judge and if the witness is properly qualified to give the testimony. The rule states that if scientific, technical or other specialized knowledge will assist the trier of fact in understanding the evidence or determining a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify in the form of an opinion or otherwise. Rule 11-702.

The court has wide discretion in determining whether an expert witness is qualified. The trier of fact determines what weight to give the testimony if it is admitted.

An expert may base his or her opinion on facts or data he or she observed, perceived, or became aware of either at or before a hearing. These facts need not be admissible into evidence if they are reasonably relied upon by experts in the field. Rule 11-703. This means that an expert can base an opinion on hearsay if that is reasonably done in the field. For example, a ballistics expert could form an opinion based on test results even if those test results were not admissible in evidence.

An expert may give an opinion on an ultimate issue to be decided by the trier of fact. Rule 11-704. The opinion may be helpful to the judge or jury, and of course can be disregarded in whole or in part. Unless the court requires otherwise, an expert may testify as to an opinion and the reasons for it without first testifying on the underlying facts or data. The expert may be required to disclose these underlying facts on cross-examination. Rule 11-705.

The court may appoint expert witnesses on its own motion or on motion of any party. Rule 11-706. See Rule 11-707 for details on admissibility of polygraph examinations.

Where there was no foundation for the testimony that the defendant had taken medication and alcohol on the night of the crime, a medical expert could not testify as to the particular effect of that combination on the defendant as there was no evidence or fact in issue upon which the expert could offer an opinion. State v. Guzman, 100 N.M. 756, 676 P.2d 1321 (1984).

The trial court properly excluded the expert witness called by the defendant to testify about the prior heroin addiction of a state's witness, because the expert had not applied any psychological test to the witness, the testimony would be highly prejudicial with little probative value on the witness's ability to recall, and the evidence would not be helpful to the jury. State v. Blea, 101 N.M. 323, 681 P.2d 1100 (1984).

The testimony of the witnesses, experts in their fields, was upon the ultimate issue of fact of whether the safety device on the rifle was dangerous and defective, and was properly the subject of expert testimony. Lopez v. Heesen, 69 N.M. 206, 365 P.2d 448 (1961).

10.8 Hearsay

10.8.1 General Rule
Hearsay is defined as an oral or written statement, other than one made by a person testifying at a trial or hearing, that is offered in evidence to prove the truth of the matter asserted. Rule 11-801. The person who made the out-of-court statement is called the “declarant.”

Hearsay is considered to be unreliable because it is a statement made out of the courtroom, where the declarant could not be observed by the judge to assess demeanor and credibility. Because of its inherent unreliability, the general rule is that hearsay is not admissible unless it falls into one of the exceptions created by the New Mexico Rules of Evidence, other rules adopted by the Supreme Court, or statute. Rule 11-802.

Although the general rule is simple (hearsay is inadmissible), there are numerous exceptions to the hearsay rule that allow the introduction of hearsay under circumstances deemed to be minimally reliable. These exceptions will be discussed below.

10.8.2 Constitutional Limitations on Hearsay
Even when hearsay is admissible under a rule or statute, the rules and statutes remain subject to the requirements of the New Mexico and U.S. Constitutions. For example, the New Mexico rules of evidence allow the admission of an excited utterance even when the declarant is available to testify. However, the New Mexico Court of Appeals has held that the Confrontation Clause of the New Mexico Constitution (which guarantees defendants in criminal cases the right to confront the witnesses against them) requires the declarant to be unavailable before an excited utterance may be admitted into evidence in a criminal case. State v. Rick Lopez, 1996-NMCA-101, 21, 122 N.M. 459, 926 P.2d 784.

The U.S. Constitution also imposes limits on the use of hearsay evidence. In Crawford v. Washington, 124 S. Ct. 1354 (2004), the U.S. Supreme Court addressed the question of whether incriminating “testimonial” hearsay evidence can be admitted in a criminal case without providing the defendant an opportunity to cross-examine the witness either before or during trial. A witness in this case made tape-recorded statements in response to police interrogation while the witness was in police custody as a potential suspect. The witness was unavailable to testify at trial and the tape-recorded statements were admitted over the defendant’s objection. The U.S. Supreme Court held that admission of this evidence violated the defendant’s constitutional right to confront witnesses against him. The court ruled that when evidence offered against a defendant in a criminal case is testimonial and the witness is unavailable, the Confrontation Clause of the Sixth Amendment to the U.S. Constitution prohibits admission of the evidence unless the defendant had a prior opportunity to cross-examine the witness.

The Supreme Court stated that the “core class” of testimonial statements that require the opportunity for cross-examination may include ex parte in-court testimony (or its functional equivalent) and extra-judicial statements contained in formalized testimonial materials. Examples may include:

• Affidavits.
• Depositions.
• Statements made while in police custody.
• Statements made in response to police interrogation.
• Confessions.
• Prior testimony at a preliminary hearing, before a grand jury or during a former trial that the defendant was unable to cross-examine.
• Similar pretrial statements that declarants would reasonably expect to be used prosecutorially.
• Statements made under circumstances that would lead an objective witness to reasonably believe that the statements would be available for use at a later trial.

In municipal courts, most testimonial hearsay will be excluded from evidence because the defendant will rarely have an opportunity to cross-examine the witness before trial (for example in a deposition or previous trial).

10.8.3 Statements that are Not Hearsay
As noted above, hearsay is an out-of-court statement that is offered to prove the truth of the matter asserted. Rule 11-801. By definition, out-of-court statements that are not offered to prove the truth of the matter asserted, but are offered for other purposes, are not hearsay and are not subject to the hearsay rules.

Additionally, the rule defining hearsay includes a list of statements that are not considered to be hearsay. Rule 11-801. Hence the hearsay rules do not apply to these statements, although other rules of evidence may apply. Statements that are not hearsay are:

• Prior Statement by a Witness. If the witness testifies and is subject to cross-examination and the statement (a) was made under oath subject to the penalty of perjury (at a trial, hearing, other proceeding, or deposition) and was inconsistent with the witness's testimony; (b) is consistent with the testimony and offered to rebut a charge against the witness of recent fabrication or improper influence or motive; or (c) is an identification of a person made after perceiving the person, then the statement is not hearsay.

Note that prior inconsistent statements admissible under this rule are admissible as substantive evidence, not just to impeach the witness.

• Admission by Party-Opponent. If the statement is offered against a party and is (a) the party's own statement; (b) a statement which the party has indicated is truthful; (c) a statement by a person authorized by the party to make the statement; (d) a statement by the party's agent on a matter within the scope of agency or employment, made during that relationship; or (e) a statement by a co-conspirator of the party during the course of the conspiracy, then the statement is not hearsay.

10.8.4 Exceptions to the Hearsay Rule (When Hearsay Can be Admitted)
There are so many exceptions to the hearsay rule that the study of hearsay is really the study of the exceptions. Rule 11-803 lists a variety of out-of-court statements that fulfill the definition of hearsay yet may be admitted, even if the person who made the statement is available to testify. This means a party can use just the statement as evidence and need not call the person as a witness. When made under the circumstances enumerated in Rule 11-803, the statement is considered to have a sufficient degree of reliability to support admission as evidence.

All hearsay statements are subject to the overall limitation of Rule 11-403, which permits exclusion of relevant evidence when its probative value is substantially outweighed by unfair prejudice, confusion or waste of time. Moreover, all hearsay statements are subject to the limitations of the state and federal constitutions, including the limitations created by the Confrontation Clause. See the discussion of Crawford v. Washington, 124 S. Ct. 1354 (2004), above.

Evidence which may be admitted under exceptions to the hearsay rule include business records, vital statistics, public records and reports, family records, various documents, market reports, learned treatises, reputation, and court judgments. Each of these is further defined in the rules.

Other admissible hearsay relates to the person's perceptions at the time in question. The following hearsay statements may be admitted regardless of the availability of the declarant to testify:

• Present Sense Impression. A statement describing or explaining an event made while the person was perceiving the event or immediately thereafter is admissible. Rule 11-803(A).
• Excited Utterance. A statement relating to a startling event made while under the stress and excitement of the event is admissible. Rule 11-803(B). Note, however, that admission of an excited utterance will violate the Confrontation Clause of the state constitution unless the prosecution shows that the declarant is unavailable to testify. State v. Lopez, 1996-NMCA-101, 21, 122 N.M. 459, 926 P.2d 784.
• Mental and Physical Condition. A statement of the person's state of mind, emotion, sensation or physical condition at the time is admissible (for example, statements of intent, plan, motive, design, mental feeling, pain, or bodily health). Rule 11-803(C).
• Medical Diagnosis and Treatment. Statements made for medical diagnosis or treatment are admissible if they describe: medical history; past or present symptoms, pain, or sensations; or the inception or general character of the cause or external source of the symptoms, pain, or sensations, insofar as reasonably pertinent to diagnosis or treatment. Rule 11-803(D).
• Recorded Recollection. A statement or record made when a witness had knowledge but no longer has sufficient recollection is admissible. Rule 11-803(E).

The rules contain a catchall exception allowing admission of other hearsay that has equivalent guarantees of trustworthiness. Rule 11-803(X).

Rule 11-804 allows admission of the following hearsay statements only when the declarant is unavailable to testify:

• Former Testimony. Testimony given as a witness in another hearing is admissible under certain circumstances. Rule 11-804(B)(1).
• Statement Under Belief of Impending Death. A statement made while believing one's death is imminent, concerning the cause or circumstances of that death, is admissible. Rule 11-804(B)(2).
• Statement Against Interest. A statement that at the time it was made was so contrary to the person's interests, or so tended to expose the person to civil or criminal liability, or makes a claim by the person against another invalid, that a reasonable person would not have made the statement unless true, is admissible. Rule 11-804(B)(3).
• Statement of Personal or Family History. A statement of the person's birth, adoption, marriage, divorce or other fact of personal or family history is admissible. Rule 11-804(B)(4).
• Other Exceptions. A statement that has equivalent guarantees of trustworthiness may be admissible. Rule 11-804(B)(5).

10.9 Privileges

10.9.1 General Rule
A "privilege" is an exemption from giving testimony. Privileges are intended to protect a relationship of social importance. Since privileges can result in the exclusion of relevant evidence and suppression of the truth, they are limited to relationships of special value that could be irrevocably harmed if breached.

The rules on privilege begin with a presumption of non-privilege. No person has a privilege to refuse to be a witness, refuse to disclose any matter, refuse to produce any object or writing, or prevent another person from being a witness or disclosing information, except as required by the constitution, the New Mexico Rules of Evidence or other rules adopted by the Supreme Court. Rule 11-501. New Mexico does not recognize common law or statutory privileges.

10.9.2 Exceptions to the Rule
The rules recognize the following privileges:

• Reports Privileged by Statute. A party may refuse to disclose reports required by law if the statute requiring the report so allows. Rule 11-502.
• Lawyer-Client Privilege. A client has a privilege to refuse to disclose and to prevent other persons from disclosing confidential communications made in the course of professional legal services. Rule 11-503.
• Physician-Patient and Psychotherapist-Patient Privilege. A patient has a privilege to refuse to disclose and to prevent other persons from disclosing confidential communications made for the purposes of diagnosis or treatment of the patient's physical, mental or emotional condition, including drug addiction, between the patient and the patient's physician or psychotherapist. Rule 11-504.
• Husband-Wife Privilege. A person has a privilege to refuse to disclose and to prevent others from disclosing a confidential communication made by the person to his or her spouse while they were married. Rule 11-505. There is, however, no husband-wife privilege in proceedings charging one spouse with a crime against the person or property of the other, or against the child of either. Nor is there a privilege in a civil action brought by or on behalf of one spouse (or a child of either spouse) against the other spouse (or a child of either). Rule 11-505(D).
• Communications to Clergy Privilege. A person has a privilege to refuse to disclose and prevent others from disclosing a confidential communication made by the person to a clergy member as spiritual advisor. Rule 11-506.
• Political Vote Privilege. Every person has a privilege to refuse to disclose the person's vote at a political election conducted by secret ballot unless the vote was cast illegally. Rule 11-507.
• Trade Secrets Privilege. A person has a privilege to refuse to disclose and to prevent others from disclosing a trade secret owned by the person, if this will not conceal fraud or cause injustice. Rule 11-508.
• Communications to Juvenile Probation Officers and Social Service Workers Privilege. A child alleged to be delinquent or in need of supervision and a parent who allegedly neglected a child have a privilege to refuse to disclose and to prevent others from disclosing confidential communications between the child, parent, probation officer or social services worker made during the course of a preliminary inquiry. Rule 11-509.
• Identity of Informer Privilege. The federal, state or local government has a privilege to refuse to disclose the identity of a person who provided information in a criminal or legislative investigation. Rule 11-510.
• News Media-Confidential Source Privilege. A person employed in the news media for the purposes of gathering news for the general public has a privilege to refuse to disclose the confidential source from whom any information was obtained and any confidential information obtained in the course of professional activities. Rule 11-514.

10.9.3 Voluntary Disclosure
A person who is granted a privilege may waive it by voluntarily disclosing or consenting to the disclosing of a significant part of the matter or communication. Rule 11-511. Disclosure of privileged matter is not admissible against the person if the disclosure was compelled erroneously or was made without opportunity to claim the privilege. Rule 11-512.

10.9.4 Commentary on Claim of Privilege
The court and counsel must not comment on a claim of privilege, and no inferences may be drawn from the claim. Rule 11-513.