N.M. R. Evid. 11-607
Any party, including the party that called the witness, may attack the witness's credibility.
N.M. R. Evid. 11-607
Committee commentary. - The language of Rule 11-607 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, modified the title of the rule and rewrote the rule to make stylistic changes. The 1993 amendment, effective December 1, 1993, substituted "the witness" for "him" at the end of the rule. Compiler's notes. - This rule is similar to Rule 607 of the Federal Rules of Evidence. This rule, in conjunction with Rule 11-611 NMRA, is deemed to supersede former Rule 43(b), N.M.R. Civ. P. Those cases decided pursuant to former Rule 43(b), N.M.R. Civ. P., and relating to the subject matter of this rule, are annotated below.
For rule regarding attacking and supporting credibility of declarant of hearsay, see Rule 11-806 NMRA. I. GENERAL CONSIDERATION. Right to impeach witness is basic to fair trial. Mac Tyres, Inc. v. Vigil, 1979-NMSC-010, 92 N.M. 446, 589 P.2d 1037. Constitutional protection of right to cross-examine fully. - The comprehensiveness of cross-examination does not lie solely within the limitation of these rules. The right to fully cross-examine, particularly when the evidence sought to be developed is such as would allow inferences of motive to lie because of the witness's vulnerable status as a parolee or a suspect, is protected by the federal and state constitutions. State v. Baldizan, 1982-NMCA-142, 99 N.M. 106, 654 P.2d 559. There are five main lines of attack upon credibility of a witness: an attack by proof that the witness on a previous occasion has made statements inconsistent with his present testimony; an attack by a showing that the witness is biased on account of emotional influences such as kinship for one party or hostility to another, or motives of pecuniary interest, whether legitimate or corrupt; an attack upon the character of the witness; an attack by showing a defect of capacity in the witness to observe, remember or recount the matters testified about; and proof by other witnesses that material facts are otherwise than as testified to by the witness under attack. State v. Hermosillo, 1975-NMCA-113, 88 N.M. 424, 540 P.2d 1313. Credibility judged even when testimony uncontradicted. - Even though the testimony of the plaintiff was not contradicted, the trial court could still determine his credibility from all the facts and circumstances, as well as his demeanor on the stand, his interest or bias shown by his testimony, his conduct, the inherent probability or improbability of his statements, and from all these matters determine the truthfulness of his testimony. Hales v. Van Cleave, 1967-NMCA-006, 78 N.M. 181, 429 P.2d 379, cert. denied, 78 N.M. 198, 429 P.2d 657. While party is not bound by the testimony of an adverse witness called under former Rule 43(b), N.M.R. Civ. P., this means only that he was free to cross-examine, contradict and impeach these witnesses, and that even if the testimony was not contradicted, the trial court was not required to accept it as true. Hutchison v. Boney, 1963-NMSC-040, 72 N.M. 194, 382 P.2d 525. Accused on stand not protected from cross-examination. - When an accused takes the witness stand he is in the same position as any other witness. He is not entitled to have his testimony falsely cloaked with reliability by having his credibility protected against the truth-searching process of cross-examination. State v. Duran, 1972-NMCA-059, 83 N.M. 700, 496 P.2d 1096, cert. denied, 83 N.M. 699, 496 P.2d 1095. Cannot impeach when evidence fails to directly address testimony. - Where defendant doctor in malpractice action testified that he had warned approximately 250 patients who had undergone operations similar to plaintiff's of the possible hazards and consequences of such an operation, plaintiff could not show, for purposes of impeachment, that defendant did not warn one particular patient where there was no evidence that the patient was one of the 250 whom defendant had warned the past year, and where defendant did not claim to have warned every patient, or where that patient was not called to defendant's attention during cross-examination. Valencia v. Beaman, 1973-NMCA-056, 85 N.M. 82, 509 P.2d 274. Cross-examination concerning prior inconclusive lie detector test proper. - Where defendant sought to enhance his credibility by his offer, in the presence of the jury, to take a lie detector test, the prosecutor's cross-examination concerning a prior inconclusive test was a proper attack on defendant's credibility. State v. Trujillo, 1979-NMCA-055, 93 N.M. 728, 605 P.2d 236, aff'd, 1980-NMSC-004, 93 N.M. 724, 605 P.2d 232. Admissibility of hearsay evidence of coconspirator's or codefendant's guilty plea. - Hearsay evidence of a coconspirator's or codefendant's guilty plea may not be admitted when the witness himself does not testify, nor when that evidence is offered solely to prove the defendant's guilt. State v. Gilbert, 1982-NMCA-081, 98 N.M. 77, 644 P.2d 1066. Court may limit cross-examination to inability to identify facial features. - Where a witness has already stated positively that she could identify the defendant, except that she cannot identify his facial features, the trial court does not abuse its discretion in restricting cross-examination on this point. State v. Quintana, 1961-NMSC-108, 69 N.M. 51, 364 P.2d 120 (decided under former law). II. PRIOR INCONSISTENT STATEMENTS. Before witness may be impeached by proof of former contradictory statements, his attention must first be directed to what may be brought forward for that purpose. And this must be done with particularity as to time, place and circumstances so that he can deny it or make any explanation intending to reconcile what he formerly said with what he is now testifying. State v. Thompson, 1961-NMSC-035, 68 N.M. 219, 360 P.2d 637; State v. Fletcher, 1932-NMSC-005, 36 N.M. 47, 7 P.2d 936. III. BIAS. It is accepted doctrine that bias of a witness will affect his credibility and although the existence of bias does not necessarily imply conscious falsehood, it is quite likely to shade at least, though unwittingly, a witness's testimony in favor of one side or against the other. Thus, granted its existence, it may be appropriately taken into consideration in weighing the testimony. State v. Hermosillo, 1975-NMCA-113, 88 N.M. 424, 540 P.2d 1313. Bias of a witness is always relevant. Therefore pendency of a civil action by a prosecuting witness seeking damages for an assault being tried in a criminal action is a proper subject of inquiry; however, the trial court did not err in prohibiting defendant in an aggravated battery prosecution from questioning of a witness (the victim) concerning an unidentified civil suit where counsel gave the court no information about the suit, made no tender of evidence and never informed the court that the witness himself had anything to do with the suit. State v. Santillanes, 1974-NMCA-092, 86 N.M. 627, 526 P.2d 424. Evidence discrediting witness by showing possible bias is admissible. State v. Martin, 1984-NMSC-077, 101 N.M. 595, 686 P.2d 937. Testimony discrediting witness as to bias and interest is never excluded on the ground of being collateral. State v. White, 1954-NMSC-050, 58 N.M. 324, 270 P.2d 727. May show bias or interest by independent evidence. - If testimony is relevant to the case in any respect, it is proper by independent evidence to show his bias or interest. State v. White, 1954-NMSC-050, 58 N.M. 324, 270 P.2d 727. Existence of bias determined circumstantially. - Since bias is a state of mind, its existence can be determined only circumstantially. These circumstances may consist of relationships, dealings or encounters calculated to develop a prejudice, conduct or utterances. State v. Hermosillo, 1975-NMCA-113, 88 N.M. 424, 540 P.2d 1313. Among the circumstances that may be relevant to show bias of a witness are all those involving some intimate family relationship to one of the parties by blood or marriage or illicit intercourse, or some such relationship to a person, other than a party, who is involved on one or the other side of the litigation, or is otherwise prejudiced for or against one of the parties. The relation of employment present or past, by one of the parties, is also usually relevant. State v. Hermosillo, 1975-NMCA-113, 88 N.M. 424, 540 P.2d 1313. Competent to show relationships creating motive to suppress truth. - It is clearly competent on cross-examination to show the relationship existing between the witness and the parties to the case, the friendship or enmity existing between the witness and the parties and any other fact that will enable the jury to determine whether the witness has any motive for suppressing or discoloring the truth. State v. Hermosillo, 1975-NMCA-113, 88 N.M. 424, 540 P.2d 1313. IV. CHARACTER. Juvenile probation officer's rebuttal testimony is prejudicial. - The admission of a juvenile probation officer's rebuttal testimony regarding the officer's opinion of the defendant's reputation for truthfulness is impermissibly prejudicial. State v. Guess, 1982-NMCA-114, 98 N.M. 438, 649 P.2d 506. V. MENTAL INCAPACITY. Defendant adjudged incompetent is competent to testify in own defense. - Defendant who had been adjudged incompetent was found fully competent to testify in his own defense as a witness subject to objections and evidence as to his credibility. Rasmussen v. Martin, 1955-NMSC-095, 60 N.M. 180, 289 P.2d 327 (decided under former law). VI. PROCEDURAL MATTERS. Jury determines credibility and weight. - The determination of the credibility of a witness and the weight to be given to his testimony is the function of the jury. State v. Tapia, 1970-NMCA-037, 81 N.M. 365, 467 P.2d 31. Trial court as trier of facts. - The credibility of the witnesses and the weight to be given to their testimony are to be determined by the trial court, as the trier of the facts, and are not matters to be determined by an appellate court. Hales v. Van Cleave, 1967-NMCA-006, 78 N.M. 181, 429 P.2d 379, cert. denied, 78 N.M. 198, 429 P.2d 657. Supreme court will not substitute its judgment for that of the trial court as to the credibility of the witness. Arretche v. Griego, 1967-NMSC-010, 77 N.M. 364, 423 P.2d 407. Appellate court will not substitute judgment for that of trier of facts. - Even though appellate court may have made a finding contrary to that of the trial court, an appellate court will not substitute its judgment for that of the trial court who heard all the evidence and observed the demeanor of the witness. Hales v. Van Cleave, 1967-NMCA-006, 78 N.M. 181, 429 P.2d 379, cert. denied, 78 N.M. 198, 429 P.2d 657. Adverse party's unfavorable but possibly truthful testimony not ignored. - A defendant or party may call and interrogate a hostile witness or an adverse party without yielding the right to impeach such witness, but this does not mean that unfavorable testimony of an adverse party which bears the impression of truth and is undisputed may be ignored. Lumpkins v. McPhee, 1955-NMSC-052, 59 N.M. 442, 286 P.2d 299. Defendant may impeach own doctor using his deposition as refresher. - Trial court did not abuse its discretion in allowing defendants to impeach their own doctor by use of the doctor's deposition where defendants interrogated the doctor, on redirect, as a hostile witness, deposition was not offered in evidence and defendants were simply refreshing the witness's recollection. Torres v. Kansas City Structural Steel Co., 1971-NMCA-043, 82 N.M. 511, 484 P.2d 353. Law reviews. - For survey, "Evidence: Prior Crimes and Prior Bad Acts Evidence," see 6 N.M.L. Rev. 405 (1976). For article, "Evidence," see 12 N.M.L. Rev. 379 (1982). Am. Jur. 2d, A.L.R. and C.J.S. references. - 81 Am. Jur. 2d Witnesses §§ 731, 734 to 736, 862, 863, 978, 983. Contingent fee informant testimony in state prosecutions, 57 A.L.R.4th 643. Propriety, in federal court action, of attack on witness' credibility by rebuttal evidence pertaining to cross-examination testimony on collateral matters, 60 A.L.R. Fed. 8 Competency of juror as witness, under Rule 606(b) of Federal Rules of Evidence, upon inquiry into validity of verdict or indictment, 65 A.L.R. Fed. 835. Propriety, under Federal Rule of Evidence 607, of impeachment of party's own witness, 89 A.L.R. Fed. 13. 98 C.J.S. Witnesses §§ 474 to 480.