N.M. R. Evid. 11-601
Every person is competent to be a witness unless these rules provide otherwise.
N.M. R. Evid. 11-601
Committee commentary. - The language of Rule 11-601 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 title of the rule and the rule to make stylistic changes. Compiler's notes. - This rule is similar to Rule 601 of the Federal Rules of Evidence. Identification of defendant. - Where a police officer stopped defendant for driving without headlights and issued a routine citation; two months later, the officer was called to testify at defendant's preliminary hearing and trial for forgery; when the officer arrived at the courthouse for the preliminary hearing, the officer was told that defendant had given the officer another person's identifying information; the officer was shown a large mug shot of defendant and told that defendant was the driver to whom the officer had issued the citation; the citation had been issued for a minor traffic violation on a night when the officer had dealt with several traffic incidents of which the officer had little memory; the officer typically made nearly one hundred stops in a month; there was nothing to distinguish defendant's traffic stop from the many traffic stops the officer made over the two-month period between defendant's traffic stop and the preliminary hearing; and the officer had never described the driver who received the citation before the preliminary hearing, the officer's view of the mug shot immediately prior to the officer's in-court identification of defendant was highly suggestive and lacked other indicia that the identification was reliable, and the officer's identifications of defendant should have been suppressed. State v. Combs, 2011-NMCA-107, 150 N.M. 766, 266 P.3d 635. Where defendant was charged with the first degree murder of the victim; defendant was embittered by the victim's rejection of defendant and the breakup of the relationship between defendant and the victim; defendant ascertained that the victim was taking an alcohol server class at a local motel; the receptionist at the motel testified that the receptionist observed and talked to defendant several days before the murder of the victim and observed defendant loitering around the motel on the day of the murder, and that defendant spoke with the receptionist to ascertain when the alcohol server class would recess for lunch; the receptionist described defendant's physical features, manner of speech and the clothing defendant wore on the day of the murder; two weeks after the murder, the victim's sister showed the receptionist a photograph of defendant; the receptionist immediately identified defendant as the person the receptionist saw around the motel on the day of the murder; and the receptionist subsequently identified defendant in court as the person the receptionist spoke with at the motel on the day of the murder, the receptionist's in-court identification of defendant was not tainted by the photograph of defendant that the receptionist saw before trial. State v. Flores, 2010-NMSC-002, 147 N.M. 542, 226 P.3d 641. Competency to testify. - Where defendant's experts testified that there was a substantial likelihood that some of the information obtained from the minor victim of sexual abuse was not reliable and that the victim's memories were not necessarily valid, the district court did not abuse its discretion in admitting the victim's testimony into evidence. State v. Ruiz, 2007-NMCA-014, 141 N.M. 53, 150 P.3d 1003, cert. denied, 2007-NMCERT-001. Generally as to proper testimony. - Witness may not give testimony in a cause unless he is placed under oath and the other party is given an opportunity to cross-examine him. Crabtree v. Measday, 1973-NMCA-017, 85 N.M. 20, 508 P.2d 1317, cert. denied, 85 N.M. 5, 508 P.2d 1302 (decided under former Rule 43, N.M.R. Civ. P., deemed superseded by New Mexico Rules of Evidence). See Rule 11-603 NMRA for requirement of oath or affirmation. Burden is on party asserting incompetency. - Ordinarily burden of showing incompetency of a witness is upon the party asserting the incompetency. State v. Manlove, 1968-NMCA-023, 79 N.M. 189, 441 P.2d 229, cert. denied, 79 N.M. 159, 441 P.2d 57. Party questioning competency must request examination outside jury's presence. - Question as to competency of a witness is a matter to be resolved by the court, and voir dire examination as to competency need not be conducted in the absence of the jury although generally better practice would be to conduct this examination outside the presence of the jury. Party questioning competency of the witness must request examination outside the presence of the jury if he so desires; absent such a request he cannot later be heard to complain that the examination was conducted in the jury's presence. State v. Manlove, 1968-NMCA-023, 79 N.M. 189, 441 P.2d 229, cert. denied, 79 N.M. 159, 441 P.2d 57. Proper considerations in determining competency of child witness. - In determining whether a child is competent to testify, the trial court must determine from inquiries the child's capacities of observation, recollection and communication and also the child's appreciation or consciousness of a duty to speak the truth; it then lies within the sound discretion of the trial court to determine, from the child's intelligence and consciousness of a duty to be truthful, whether or not the child is competent to testify as a witness. State v. Noble, 1977-NMSC-031, 90 N.M. 360, 563 P.2d 1153. Where prior to a young girl's testimony about the murder of her mother an extensive examination out of the presence of the jury was made by the defense counsel, the prosecutor and the judge concerning the girl's understanding of her obligation to tell the truth, and the record of that examination clearly demonstrated that she understood her duty to tell the truth, the court properly determined that the young girl was a competent witness. State v. Noble, 1977-NMSC-031, 90 N.M. 360, 563 P.2d 1153. Standard to determine competency to testify. - This rule requires a witness to possess a basic understanding of the difference between telling the truth and lying, coupled with an awareness that lying is wrong and may result in some sort of punishment. When the competency of a witness is at issue, the district court is required to determine only whether the witness meets a minimum standard, such that a reasonable person could put any credence in their testimony. State v. Perez, 2016-NMCA-033, cert. denied. In a case alleging multiple counts of sexual abuse involving an eight-year-old child, where the child psychologist testified that the child had the capacity to tell the difference between the truth and a lie and knew that there were consequences for lying, the child met the minimum standard for witness competence, and the district court erred in excluding the child's testimony based on other factors testified to by the psychologist. State v. Perez, 2016-NMCA-033, cert. denied. Capacity of children to testify is not determined alone on age. - In each instance the capacity of a child of tender years is to be investigated, and the trial court must determine from inquiries the child's capacities of observation, recollection and communication and also the child's appreciation or consciousness of a duty to speak the truth; it then lies within the sound discretion of the trial court to determine therefrom whether or not the child is competent to testify as a witness. State v. Manlove, 1977-NMSC-031, 79 N.M. 189, 441 P.2d 229, cert. denied, 79 N.M. 159, 441 P.2d 57. Whether the two boys in a sexual assault were competent to testify was a matter to be resolved by the trial court in the exercise of its discretion, and boys' capacity to testify was not to be determined solely on the basis of their age. State v. Barnes, 1972-NMCA-030, 83 N.M. 566, 494 P.2d 979, cert. denied, 83 N.M. 562, 494 P.2d 975. There is no precise age at which a child's evidence is absolutely excluded; permitting a 10-year-old child to testify was not an abuse of discretion. State v. Manlove, 1968-NMCA-023, 79 N.M. 189, 441 P.2d 229, cert. denied, 79 N.M. 159, 441 P.2d 57. Capacity of children to testify is not determined alone on understanding nature of oath. - Fact that a child states in express terms that he does not understand the nature of an oath is not of itself sufficient ground for his exclusion as a witness where it clearly appears that the child has sufficient intelligence to understand the nature of an oath and to narrate the facts accurately and that he knows that it is wrong to tell an untruth and right to tell the truth and that if he told an untruth he would be punished and where other facts show that he is competent. State v. Manlove, 1968-NMCA-023, 79 N.M. 189, 441 P.2d 229, cert. denied, 79 N.M. 159, 441 P.2d 57. Scope of review of trial court's determination. - Appellate courts will not review discretion of the trial court in permitting a child of tender years to testify except in a clear case of abuse of discretion. State v. Manlove, 1968-NMCA-023, 79 N.M. 189, 441 P.2d 229, cert. denied, 79 N.M. 159, 441 P.2d 57. Any competent witness may make criminal complaint. - Anyone who is a competent witness and has knowledge of the facts may make a complaint or issue a citation in a criminal case or for violation of a city ordinance. A 19-year-old minor could legally serve citations, was fully capable to properly evaluate facts which came to her personal knowledge and was legally competent to establish the charges complained of. City of Alamogordo v. Harris, 1959-NMSC-014, 65 N.M. 238, 335 P.2d 565 (decided before enactment of this rule and of 28-6-1 NMSA 1978, which provides that 18 is age of majority). Use of pretrial hypnosis to revive memory of witness. - The testimony of a witness who has undergone pretrial hypnosis to revive the memory of the witness without the administration of any drugs is neither automatically inadmissible nor subject to a blanket proscription. State v. Beachum, 1981-NMCA-137, 97 N.M. 682, 643 P.2d 246. Absent protective order, there is nothing to stay deposition of witness whose competency is questioned. - Party seeking protective order to stay taking of deposition of witness, pending determination of competency of witness, must file such motion prior to the date designated for the taking of the deposition; until a protective order is issued, there is nothing to delay the taking of the deposition. Bartow v. Kernan, 1984-NMCA-074, 101 N.M. 532, 685 P.2d 387. Competency of Down's Syndrome witness. - In a prosecution for criminal sexual penetration, the trial court did not abuse its discretion in admitting the testimony of the victim who, because of Down's Syndrome, had a mental age equivalent to that of a person slightly below six years of age. State v. Hueglin, 2000-NMCA-106, 130 N.M. 54, 16 P.3d 1113. Competency of witness on pain medication. - In defendant's trial for depraved mind murder and aggravated assault, where defendant fired a gun at a vehicle occupied by four people, striking and killing an eight-year-old child sitting in the backseat of the vehicle, the trial court did not abuse its discretion in allowing a witness to testify while the witness was under the influence of pain medication where the witness did not appear to have any difficulty answering questions and where defendant failed to move to exclude the witness's testimony or for a mistrial. State v. Candelaria, 2019-NMSC-004. Deputy sheriff's testimony. - Trial court did not abuse its discretion in admitting the testimony of a deputy sheriff in his capacity as a deputy sheriff in a criminal prosecution, even though he was not a registered voter as required by Section 4-41-10 NMSA 1978. State v. Martinez, 1986-NMCA-069, 104 N.M. 584, 725 P.2d 263. Am. Jur. 2d, A.L.R. and C.J.S. references. - 29 Am. Jur. 2d Evidence § 305; 75 Am. Jur. 2d Trial § 321 et seq. Application of dead man's statute in proceeding involving account of personal representative, 2 A.L.R.2d 349. Dead man's statute as applicable to testimony denying transaction or communication between witness and person since deceased, 8 A.L.R.2d 1094. Alleged incompetent as witness in lunacy inquisition, 22 A.L.R.2d 756. Death of one coparty to contract or transaction, including copartner, as affecting competency of adverse party or surviving coparty to testify as against each other or as against estate of decedent, 22 A.L.R.2d 1068. Introduction of decedent's books of account by his personal representative as waiver of "dead man's statute," 26 A.L.R.2d 1009. Dead man's statute as applicable to spouse of party disqualified from testifying, 27 A.L.R.2d 538. Examination and the like of one witness incompetent under dead man statute as waiver of incompetency of other witnesses, 33 A.L.R.2d 1440. Admissibility of testator's declarations upon issue of genuineness or due execution of purported will, 62 A.L.R.2d 855. Applicability of dead man statute to proceedings to determine liability for succession, estate or inheritance tax, 66 A.L.R.2d 714. Competency of witness in wrongful death action as affected by dead man statute, 77 A.L.R.2d 676. Testimony to facts of automobile accident as testimony to a "transaction" or "communication" with a deceased person, within dead man statute, 80 A.L.R.2d 1296. Competency of young child as witness in civil case, 81 A.L.R.2d 386, 60 A.L.R.4th 369. Competency, under dead man statute, of witness to testify as to payment or nonpayment of an obligation owing to deceased person, 84 A.L.R.2d 1356. Husband or wife as competent witness for or against cooffender with spouse, 90 A.L.R.2d 648. Person performing services as competent to testify as to their value, 5 A.L.R.3d 947. Competency of interested witness to testify to signature or handwriting of deceased, 13 A.L.R.3d 404. Statute excluding testimony of one person because of death of another as applied to testimony in respect of lost or destroyed instrument, 18 A.L.R.3d 606. Taking deposition or serving interrogatories in civil case as waiver of incompetency of witness, 23 A.L.R.3d 389. Personal representative's loss of rights under dead man statute by prior institution of discovery proceedings, 35 A.L.R.3d 955. Prosecuting attorney as a witness in criminal case, 54 A.L.R.3d 100. Use of drugs as affecting competency or credibility of witness, 65 A.L.R.3d 705. Admissibility of hypnotic evidence at criminal trial, 92 A.L.R.3d 442, 77 A.L.R.4th 927. Right to cross-examine prosecuting witness as to his pending or contemplated civil action against accused for damages arising out of same transaction, 98 A.L.R.3d 1060. Admissibility of evidence concerning words spoken while declarant was asleep or unconscious, 14 A.L.R.4th 802. Admissibility of testimony regarding spontaneous declarations made by one incompetent to testify at trial, 15 A.L.R.4th 1043. Propriety and prejudicial effect of comments by counsel vouching for credibility of witness - state cases, 45 A.L.R.4th 602. Deaf-mute as witness, 50 A.L.R.4th 1188. Dead man's statutes as affected by Rule 601 of the Uniform Rules of Evidence and similar state rules, 50 A.L.R.4th 1238. Witnesses: child competency statutes, 60 A.L.R.4th 369. Compelling testimony of opponent's expert in state court, 66 A.L.R.4th 213. Admissibility of hypnotically refreshed or enhanced testimony, 77 A.L.R.4th 927. Propriety and prejudicial effect of third party accompanying or rendering support to witness during testimony, 82 A.L.R.4th 1038. Permissibility of testimony by telephone in state trial, 85 A.L.R.4th 476. Sufficiency of evidence that witness in criminal case was hypnotized, for purposes of determining admissibility of testimony given under hypnosis or of hypnotically enhanced testimony, 16 A.L.R.5th 841. 97 C.J.S. Witnesses §§ 49 to 314.