N.M. R. Evid. 11-606
N.M. R. Evid. 11-606
Committee commentary. - The language of Rule 11-606 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.
[As amended 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. The 2007 amendment, approved by Supreme Court Order No. 07-8300-035, effective February 1, 2008, amended Paragraph B to add Subparagraph (3) providing that a juror may testify about a mistake in entering the verdict onto the verdict form. The 1993 amendment, effective December 1, 1993, substituted "the juror" and "the juror's" for "he", "him" and "his" throughout the rule. Compiler's notes. - This rule is similar to Rule 606 of the Federal Rules of Evidence. Admissibility of expert testimony under New Mexico law. - New Mexico has never adopted the Joiner rule that a judge may reject expert testimony where the "analytical gap" between the underlying evidence and the expert's conclusions is too great. Joiner is inconsistent with longstanding New Mexico law that leaves credibility determinations and weighing of the evidence to the trier of fact; any doubt regarding the admissibility of scientific evidence should be resolved in favor of admission, rather than exclusion. Acosta v. Shell W. Expl. & Prod., Inc., 2016-NMSC-012, rev'g 2013-NMCA-009, 293 P.3d 917. In a toxic tort case, where plaintiffs sued defendants for personal injuries resulting from defendants' dumping of toxic hydrocarbons in the ground where plaintiffs' houses were subsequently built, and where plaintiffs' expert witness conducted a study that included an analysis of plaintiffs' medical conditions through patient history, medical records, physical examinations and diagnostic testing, reviewed the scientific evidence related to general causation, relied on animal studies establishing that pristane, a toxic chemical found in crude oil, exposure in mice induces autoimmunity and lupus, and concluded that plaintiffs' inhalation, ingestion, and absorption of the combination of various toxins from defendants' oil and gas operations caused or aggravated plaintiffs' lupus and other autoimmune disorders, the district court erred when it determined that the expert's study and the proffered testimony would not assist the trier of fact in determining whether the chemical mixture at issue was capable of causing lupus or other autoimmune disorders. The expert's causation opinion, his study, and the animal studies it relied on support a valid scientific inference that is probative of causation, even if they do not conclusively establish that the specific chemicals at issue can cause lupus or other autoimmune disorders. The expert's study and his causation testimony were relevant and should have been admitted. Acosta v. Shell W. Expl. & Prod., Inc., 2016-NMSC-012, rev'g 2013-NMCA-009, 293 P.3d 917. Juror discussions of the evidence prior to final deliberations. - Juror discussions of the evidence throughout trial and among themselves prior to final deliberations, as permitted by UJI 13-110 NMRA, are protected from disclosure by Paragraph B of Rule 11-606 NMRA. Acosta v. Shell W. Expl. & Prod., Inc., 2013-NMCA-009, 293 P.3d 917, cert. granted, 2012-NMCERT-012. Where, in a toxic tort case, plaintiffs sued defendants for personal injuries resulting from defendants' negligent disposition of toxic petrochemicals, the jury found against plaintiffs on all claims; plaintiffs moved for a new trial on the grounds of juror misconduct and prejudice; and plaintiffs' motion was supported by juror affidavits that before final deliberations jurors had made statements that some of plaintiffs' symptoms were the result of medication side effects, that one plaintiff was ill with something other than contamination, that asthma and bronchitis could only be diagnosed by a chest x-ray contrary to plaintiffs' medical expert, that the department of health went to the neighborhood because of tuberculosis, regarding the sexual orientation and morals of two plaintiffs, and that the oil companies would pull out of town in the event of a pro-plaintiff verdict, the district court improperly considered the juror statements because they were permissible comments on the evidence and inadmissible under Rule 11-606 NMRA. Acosta v. Shell W. Expl. & Prod., Inc., 2013-NMCA-009, 293 P.3d 917, cert. granted, 2012-NMCERT-012. Juror statements indicating juror prejudice. - Where, in a toxic tort case, plaintiffs sued defendants for personal injuries resulting from defendants' negligent deposition of toxic petrochemicals that plaintiffs alleged caused plaintiffs' lupus and other autoimmune disorders; the jury found against plaintiffs on all claims; plaintiffs moved for a new trial on the grounds of juror prejudice; and plaintiffs' motion was supported by juror affidavits that after three days of a seventeen day trial, one juror stated "Why are we here? This is a waste of time" and "we know what the outcome is" and complained that the juror was tired of hearing the same evidence and wanted to go home, if the statements were evidence of a fixed predetermination of the final outcome of the trial, the district court could consider and evaluate the statement because the statement would violate UJI 13-110 NMRA and fall outside the protection of Rule 11-606 NMRA. Acosta v. Shell W. Expl. & Prod., Inc., 2013-NMCA-009, 293 P.3d 917, cert. granted, 2012-NMCERT-012. Presumption of prejudice from extraneous information no longer exists. - In a proceeding to challenge a verdict on the ground that extraneous material prejudiced the jury, the presumption of prejudice attaching to extraneous juror communications no longer exists under New Mexico law, because the moving party has the burden throughout the proceedings to prove that there is a reasonable probability that extraneous material affected the verdict or a typical juror. Kilgore v. Fuji Heavy Industries, Ltd., 2010-NMSC-040, 148 N.M. 561, 240 P.3d 648, rev'g 2009-NMCA-078, 146 N.M. 698, 213 P.3d 1127. Remedy for alleged prejudice from extraneous information. - Where a party alleges that extraneous information affected a verdict, an evidentiary hearing in which the moving party will have an opportunity to prove a reasonable probability of prejudice, rather than a new trial, typically is the appropriate remedy. Kilgore v. Fuji Heavy Industries, Ltd., 2010-NMSC-040, 148 N.M. 561, 240 P.3d 648, rev'g 2009-NMCA-078, 146 N.M. 698, 213 P.3d 1127. Burden of proof of prejudice from extraneous information. - A party who alleges that extraneous information affected a verdict bears the burden to prove that (1) material extraneous to the trial actually reached the jury, (2) the extraneous material relates to the case being tried, and (3) it is reasonably probable that the extraneous material affected the jury's verdict or a typical juror. Kilgore v. Fuji Heavy Industries, Ltd., 2010-NMSC-040, 148 N.M. 561, 240 P.3d 648, rev'g 2009-NMCA-078, 146 N.M. 698, 213 P.3d 1127. Factors considered in determining prejudice from extraneous information. - To determine whether a probability of prejudice exists when extraneous information has been brought to the attention of the jury, the trial court should consider the following relevant inquires: (1) the manner in which the extraneous material was received; (2) how long the extraneous material was available to the jury; (3) whether the jury received the extraneous material before or after the verdict; (4) if received before the verdict, at what point in the deliberations was the material received; and (5) whether it is probable that the extraneous material affected the jury's verdict, given the overall strength of the opposing party's case. Kilgore v. Fuji Heavy Industries, Ltd., 2010-NMSC-040, 148 N.M. 561, 240 P.3d 648, rev'g 2009-NMCA-078, 146 N.M. 698, 213 P.3d 1127. Prejudice from extraneous information. - Where plaintiffs sued defendants for personal injury arising out of an alleged defective seatbelt in plaintiffs' Subaru automobile, plaintiffs tried the case on the theory that the buckle design of Subaru automobiles created a risk of accidental or inadvertent release; the jury found that the seatbelt system in plaintiffs' Subaru was not defective; plaintiffs filed a motion for a new trial based on the misconduct of a juror; and plaintiffs' motion was supported by the affidavit of the owner of a Subaru-specific repair shop who stated that the owner had told the juror that the owner had never heard of any incident where a Subaru seatbelt buckle had come open accidentally, the affidavit was sufficient to establish that material extraneous to the trial actually reached the jury and that the extraneous material was relevant to the case being tried and plaintiff was entitled to an evidentiary hearing regarding plaintiffs' claim of juror prejudice. Kilgore v. Fuji Heavy Industries, Ltd., 2010-NMSC-040, 148 N.M. 561, 240 P.3d 648, rev'g 2009-NMCA-078, 146 N.M. 698, 213 P.3d 1127. Jurors' affidavits that evidence a misunderstanding of instructions. - Jurors' affidavits that evidenced a misunderstanding of instructions or process in reaching a verdict that might have produced a different verdict did not evidence a clerical error in the verdict and were impermissibly considered under Rule 11-606(B) NMRA. Shadoan v. Cities of Gold Casino, 2010-NMCA-002, 147 N.M. 444, 224 P.3d 671. Jurors' affidavits that evidence an intention to award a verdict different from the verdict form filed with the court. - Where plaintiff sued defendants for $448,500 in compensatory damages and $9,568 in medical expenses; the jury returned a verdict for plaintiff in the amount of $4,784 and found that defendants were 20% responsible for plaintiff's injuries; plaintiff filed a motion for a new trial based on the affidavits of three jurors which stated that the jury had intended to give plaintiff half of plaintiff's medical expenses and 20% of $448,500 and that the verdict form had been filled out incorrectly; the affidavits explained what the intentions of the jury were, but did not state that what was written on the verdict form was not what the jury agreed on; the record did not otherwise support the existence of an error in the verdict form; and the district court ordered a new trial based solely on the difference between the dollar amounts in the verdict form and the affidavits, the affidavits were precluded by Rule 11-606 NMRA and the district court erred in ordering a new trial. Shadoan v. Cities of Gold Casino, 2010-NMCA-002, 147 N.M. 444, 224 P.3d 671. Insufficient evidence of prejudice from extraneous information. - Where plaintiff sued defendants for personal injury arising out of an alleged defective seatbelt in the plaintiff's Subaru automobile; plaintiff tried the case on the theory that the buckle design of Subaru automobiles created a risk of accidental or inadvertent release; the jury found that the seatbelt system in plaintiff's Subaru was not defective; plaintiff filed a motion for a new trial based on a claim of misconduct by a single juror; the only evidence that plaintiff presented in support of the motion was the affidavit of the owner of a Subaru-specific repair shop where the juror's brother worked as a mechanic; in the affidavit, the owner stated that the juror told the owner that the juror was a juror in the Subaru case, the owner told the juror that the owner had never heard of an incident of a Subaru seatbelt buckle opening accidentally, and the juror indicated that the juror was not supposed to be talking with the owner about the case; the affidavit did not state who initiated the discussion, what motivated the owner or the juror to say what they said, or that the juror violated the court's instructions not to talk about the case; and there was no evidence that the extraneous information actually reached other members of the jury, plaintiff failed to meet the preliminary requirement that plaintiff show there was a reasonable likelihood that the extraneous information would have an effect on the verdict or on a typical juror. Kilgore v. Fuji Heavy Industries, Ltd., 2009-NMCA-078, 146 N.M. 698, 213 P.3d 1127, cert. granted, 2009-NMCERT-007. Interpreter. - Paragraph B of this rule provides a possible avenue for determining whether an interpreter exceeded her proper role. State v. Pacheco, 2006-NMCA-002, 138 N.M. 737, 126 P.3d 553, cert. granted, 2005-NMCERT-012. Paragraph A also applies to grand jurors. State v. Aaron, 1984-NMCA-124, 102 N.M. 187, 692 P.2d 1336. Party seeking new trial must make preliminary showing that extraneous material reached jury; if the party makes such a showing, and if there is a reasonable possibility the material prejudiced the defendant, the trial court should grant a new trial. State v. Doe, 1984-NMCA-045, 101 N.M. 363,683 P.2d 45; State v. Sena, 1987-NMSC-038, 105 N.M. 686, 736 P.2d 491. Party adversely affected by improper communication to jury enjoys rebuttable "presumption of prejudice." State v. Doe, 1984-NMCA-045, 101 N.M. 363, 683 P.2d 45. Presumption of prejudice meets due process requirements. - While Paragraph B effectively precludes defendant from being able to prove that the improper communication to jury affected the jury's verdict, the presumption that the improper communication amounted to prejudice meets due process requirements. State v. Melton, 1984-NMCA-115, 102 N.M. 120, 692 P.2d 45. Juror's inner reactions not subject to inquiry. - The mental operations and emotional reactions of jurors in arriving at a given result would, if allowed as a subject of inquiry, place every verdict at the mercy of jurors and invite tampering and harassment; therefore, inquiry as to a juror's inner reaction in arriving at a verdict is prohibited. State v. Barela, 1978-NMCA-034, 91 N.M. 634, 578 P.2d 335, cert. denied, 91 N.M. 610, 577 P.2d 1256. In a murder case where a statement was erroneously introduced into evidence referring to defendant's participation in a prior, locally notorious murder, statements about the jury's use of defendant's prior murder conviction should not have been considered. State v. Roybal, 2002-NMSC-027, 132 N.M. 657, 54 P.3d 61. Juror's possible misunderstanding of charged crime not subject to inquiry.-Where defendant was convicted of intentional child abuse resulting in the death of a child less than twelve years of age, and where, after defendant's trial, a member of the jury e-mailed the district court indicating that the juror may have misunderstood the charged crime, the district court did not abuse its discretion in denying defendant's motion for a new trial because Rule 11-606 NMRA prohibits receiving testimony or evidence from a juror about any statement made or incident that occurred during the jury's deliberation, the effect of anything on that juror's or another juror's vote, or any juror's mental processes concerning the verdict or indictment, and none of the Rule 11-606(B)(2) NMRA exceptions to this prohibition were applicable. State v. Lucero, 2017-NMSC-008. If court determines that extraneous information reached jury, the court must inquire into prejudice, and relevant inquiries include how the material was received, how long it was available to the jury, the extent to which the jury discussed the material, whether they considered it before they reached a verdict or after, and, if before, at what point in the deliberations they received the material. State v. Doe, 1984-NMCA-045, 101 N.M. 363, 683 P.2d 45. Jurors should not be permitted to impeach their verdict by affidavits made after discharge. Skeet v. Wilson, 1966-NMSC-182, 76 N.M. 697, 417 P.2d 889. Jurors may not impeach their verdict by affidavit after they are discharged. State v. Maestas, 2005-NMCA-062, 137 N.M. 523, 113 P.3d 346, cert. granted, 2005-NMCERT-005. Juror's letter impeaching verdict is not consideration for new trial. - It is improper for a trial court to consider a letter from one of the jurors which allegedly impeached a verdict as basis for granting a new trial. State v. Chavez, 1982-NMSC-108, 98 N.M. 682, 652 P.2d 232. Where, following trial, a plaintiff alleged juror bias and prejudice and juror incompetency based on another juror's letter to the judge and affidavit, the trial court erred in granting the plaintiff's Rule 1-060(B) NMRA motion because there was no competent evidence to support the plaintiff's allegations of bias or prejudice or that the juror in question had responded untruthfully to questions on voir dire; Rule 11-606 NMRA specifically precludes impeachment of a verdict by the testimony or affidavit of a juror concerning statements made by a juror during jury deliberations. Rios v. Danuser Mach. Co., 1990 -NMCA-031, 110 N.M. 87, 792 P.2d 419. Rule does not involve qualifications of jurors. - Paragraph B deals with the general subject of when a juror may impeach a verdict, and was inapplicable where the issue did not involve impeaching the verdict, but rather the qualifications of one of the jury members to serve as a juror. Trial court, therefore, erred in ruling that it would not permit defendant to question the juror concerning the truthfulness of her answers on voir dire. State v. Martinez, 1977-NMCA-068, 90 N.M. 595, 566 P.2d 843. Paragraph B does not preclude testimony by jurors subject to subpoena. State v. Doe, 1984-NMCA-045, 101 N.M. 363, 683 P.2d 45. Paragraph B precludes the use of jurors' affidavits to explain their verdicts. Lamkin v. Garcia, 1987-NMCA-071, 106 N.M. 60, 738 P.2d 932. Juror's affidavit regarding predeliberation discussions of the case among the jurors was admissible under Paragraph B. Goodloe v. Bookout, 1999-NMCA-061, 127 N.M. 327, 980 P.2d 652. Mistrial jury foreman's affidavit not used to prove double jeopardy. - Where defendant was tried for second time on murder and manslaughter charges, affidavit of the foreman of first jury stating that the jury had unanimously voted to acquit defendant of murder, and offered to show that defendant was twice placed in jeopardy by being retried for murder, was properly disregarded by the trial court, even where a mistrial had been declared in the first trial without a conviction or acquittal. State v. Castrillo, 1977-NMSC-059, 90 N.M. 608, 566 P.2d 1146. Impeachment of verdict permitted when extraneous influence involved. - When several jurors make independent speed tests is an automobile accident case, the speed tests may constitute extraneous evidence. If so, that extraneous evidence may be improperly brought to the jury's attention. Paragraph B permits impeachment of a verdict by juror affidavit or testimony when such extraneous influence is involved. Duran v. Lovato, 1982-NMCA-182, 99 N.M. 242, 656 P.2d 905. Communication not affecting verdict. - While the state did not show that a communication between court and jury, out of the defendant's presence, occurred after the jury was ready to return a verdict, it nonetheless showed through testimony elicited from the foreperson, and affidavits signed by all the jurors, that the communication did not affect the verdict. This was not contrary to the provision of Paragraph B, the purpose of which is to prevent tampering and harassment of the jury and inquiry into its deliberations to the end of casting doubt on the jury's competence. State v. Zinn, 1987-NMSC-115, 106 N.M. 544, 746 P.2d 650. Foreman questioned as to jury votes. - Judge's questioning of the jury foreman regarding the votes in an announced verdict did not violate Paragraph B of this rule. State v. Apodaca, 1997-NMCA-051, 123 N.M. 372, 940 P.2d 478. Limitation on contents of jurors' affidavits held proper. - Trial court's order striking jurors' affidavits in their entirety, except to the extent that the affidavits dealt with conversations between the jury and the bailiff, was consistent with Subsection B. Hurst v. Citadel, Ltd., 1991-NMCA-006, 111 N.M. 566, 807 P.2d 750. Jury's experiments regarding a noise on an audiotape to determine whether it was the sound of a police officer's gun being withdrawn from his holster were not improper, where the jury did not consider evidence or statements that were not presented to the court. State v. Chamberlain, 1991-NMSC-094, 112 N.M. 723, 819 P.2d 673. Juror's presentation of probability calculations to the jury regarding the chances of a child and a screwdriver falling in such a manner as to result in impalement conducted himself properly as his deliberations were based upon his professional and educational experience. State v. Mann, 2002-NMSC-001, 131 N.M. 459, 39 P.3d 124. Law reviews. - For article, "Survey of New Mexico Law, 1979-80: Evidence," see 11 N.M.L. Rev. 159 (1981). For annual survey of New Mexico law of evidence, 19 N.M.L. Rev. 679 (1990). For note, "State v. Mann: Extraneous Prejudicial Information in the Jury Room: Beautiful Minds Allowed," see 34 N.M.L. Rev. 149 (2004). Am. Jur. 2d, A.L.R. and C.J.S. references. - 58 Am. Jur. 2d New Trial §§ 210 to 213; 81 Am. Jur. 2d Witnesses § 280. Admissibility in civil case of affidavit or testimony of juror in support of verdict attacked on ground of bias or disqualification of juror, 30 A.L.R.2d 914. Competency of jurors' statements or affidavits to show that they never agreed to purported verdict, 40 A.L.R.2d 1119. Admissibility, in civil case, of juror's affidavit or testimony to show bias, prejudice or disqualification of a juror not disclosed on voir dire examination, 48 A.L.R.2d 971. Admissibility and effect, in criminal case, of evidence as to juror's statements, during deliberations, as to facts not introduced into evidence, 58 A.L.R.2d 556. Use of intoxicating liquor by jurors: civil cases, 6 A.L.R.3d 934. Use of intoxicating liquor by jurors: criminal cases, 7 A.L.R.3d 1040. Prejudicial effect, in criminal case, of communications between witnesses and jurors, 9 A.L.R.3d 1275. Admissibility, in civil case, of juror's affidavit or testimony relating to juror's misconduct outside jury room, 32 A.L.R.3d 1356. Trial jurors as witnesses in same state court or related case, 86 A.L.R.3d 781. Propriety of reassembling jury to amend, correct, clarify, or otherwise change verdict after discharge or separation at conclusion of civil case, 19 A.L.R.5th 622. 23A C.J.S. Criminal Law § 1418; 66 C.J.S. New Trial §§ 169, 172; 97 C.J.S. Witnesses §§ 105 to 114.