N.M. R. Evid. 11-613
N.M. R. Evid. 11-613
Committee commentary. - The language of Rule 11-613 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. The 1993 amendment, effective December 1, 1993, substituted "the witness" for "him" in two places and "nor" for "or" in Paragraph A, and substituted "the witness" for "him" in Paragraph B. Compiler's notes. - This rule is similar to Rule 613 of the Federal Rules of Evidence. Most of the following cases were decided pursuant to 20-2-1 and 20-2-2, 1953 Comp. (repealed by Laws 1973, ch. 223, § 2 ), which were similar to this rule.
For contents of writings, recordings and photographs, see Rules 11-1001 to 11-1008 NMRA. I. GENERAL CONSIDERATION. Conflicting deposition testimony. - The court did not abuse its discretion in admitting a witness's testimony that differed from the witness's deposition testimony because the opposing party was afforded the remedy of impeaching the witness's credibility by using the witness's prior inconsistent statements. Roark v. Farmers Group, Inc., 2007-NMCA-074, 142 N.M. 59, 162 P.3d 896, cert. denied, 2007-NMCERT-006. Rule's scope limited by balancing probativeness against prejudice. - This rule provides for the admissibility of extrinsic evidence of a prior inconsistent statement by a witness for impeachment purposes; the scope of this rule is limited by the necessary balancing of probativeness against prejudice, and the extrinsic evidence contemplated by the rule must be material and relevant. State v. Ross, 1975-NMCA-056, 88 N.M. 1, 536 P.2d 265. A written or oral statement of a witness as to material matters inconsistent with his trial testimony is admissible at trial for impeachment purposes. However, it is equally clear that such admission is limited by the necessary balancing of probativeness against prejudice. State v. Davis, 1981-NMSC-131, 97 N.M. 130, 637 P.2d 561. Method and extent of cross-examination depends upon discretion of trial judge. State v. Roybal, 1928-NMSC-055, 33 N.M. 540, 273 P. 919. Matter of cross-examination to test credibility of witness is largely within the discretion of the trial court. State v. Roybal, 1928-NMSC-055, 33 N.M. 540, 273 P. 919; State v. Burkett, 1927-NMSC-087, 33 N.M. 159, 262 P. 532. Admission or exclusion of inconsistent statement rests within sound discretion of trial court under the particular facts in a case and will not be reversed absent an abuse of that discretion. State v. Davis, 1981-NMSC-131, 97 N.M. 130, 637 P.2d 561. When witness admits dislike for party no details on cross-examination. - Court did not abuse its discretion in refusing to permit counsel for appellant to show on cross-examination of an adversary's witness, that there were family disagreements between father and mother of defendant, and that the witness had taken sides with one of the members of the family, and the defendant with the other, and that out of such disagreement had grown a feeling of hostility between the parties, where the record showed that the witness said in answer to direct questions that his relations with the defendant were unfriendly. State v. Roybal, 1928-NMSC-055, 33 N.M. 540, 273 P. 919. When state witness proves adverse, state may prove former inconsistent statements, if the circumstances are stated to him and he is asked whether or not he did make such statement. State v. Hite, 1918-NMSC-055, 24 N.M. 23, 172 P. 419. State could impeach own key witness by using contradictory affidavits. - Allowing district attorney to impeach key state's witness on redirect, by questioning him about affidavits directly contradictory to his testimony on cross-examination and then admitting such affidavits in evidence over objection was not error where his testimony on direct examination made out a strong case for the state and he did a "right-about face" on cross-examination by giving testimony which, if believed, fully exonerated accused. State v. Garcia, 1953-NMSC-026, 57 N.M. 166, 256 P.2d 532. Contradictory pretrial statement used to impeach witness as adverse witness. - A witness who testified at trial that he did not see a fight and that he had seen defendants "crossing the highway," when he had said before trial that he had witnessed a fight between defendant and deceased, could be impeached as an adverse witness. State v. Lopez, 1942-NMSC-064, 46 N.M. 463, 131 P.2d 273. Defendant's introduction of evidence of inconsistency in witness' testimony. - Once a witness testifies she does not remember an alleged inconsistent answer, the defendant can introduce evidence of an inconsistency. State v. Martinez, 1982-NMCA-053, 98 N.M. 27, 644 P.2d 541. Unfavorable statement by motorist following collision admissible as res gestae. - Testimony by a police officer may be admitted under the res gestae doctrine as to a statement made to him by a motorist following a collision that as the motorist approached an intersection, and being unable to stop he accelerated his vehicle to cross, and that at the time the motorist appeared nervous, excited and upset. Otero v. Physicians & Surgeons Ambulance Serv., Inc., 1959-NMSC-024, 65 N.M. 319, 336 P.2d 1070. Proper time to make demand for grand jury testimony during trial is when the grand jury witness testifies at trial and the defendant wants to cross-examine. Valles v. State, 1977-NMCA-034, 90 N.M. 347, 563 P.2d 610, cert. denied, 90 N.M. 637, 567 P.2d 486. Disclosure of attorney's notes. - Having used an attorney's notes concerning a witness' statement in an effort to impeach the witness, these are no longer shielded by the work-product doctrine. In this circumstance, the trial court may properly require the disclosure of the notes under Paragraph A. State v. Turner, 1982-NMSC-040, 97 N.M. 575, 642 P.2d 178. II. EXTRINSIC EVIDENCE OF PRIOR STATEMENT. A. IN GENERAL. Substantive inconsistencies required. - Under Paragraph B, the statement introduced into evidence must be inconsistent with trial testimony. State v. Varela, 1999-NMSC-045, 128 N.M. 454, 993 P.2d 1280. Prior inconsistent statement used for impeachment. - Where the substance of the witness's trial testimony is inconsistent with a prior statement, the witness may be impeached by questioning the witness about the prior inconsistent statement pursuant to this Rule, which allows, but does not require, extrinsic evidence of the prior statement when the requirements of this Rule have been satisfied, subject to the district court's broad discretion under Rule 11-403 NMRA. State v. Astorga, 2015-NMSC-007. In first-degree murder case where a witness testified at trial that he saw the caliber stamp on the murder weapon, the trial testimony was inconsistent with the witness's prior statement to the investigator that he did not actually see the caliber stamp on the handgun; the witness was given the opportunity on cross-examination to explain or deny his prior statement and the State had the opportunity to question the witness about the prior statement during re-direct examination; under these circumstances, the requirements of this Rule were met to allow the admission of extrinsic evidence of the prior inconsistent statement for the purpose of impeaching the witness; the district court erred in denying the admission of extrinsic evidence of the prior statement. State v. Astorga, 2015-NMSC-007. No abuse of discretion in denying admission of prior statement. - In defendant's trial for felony battery on a household member, where defendant sought the admission of letters written by the victim as prior inconsistent statements, the district court did not abuse its discretion in refusing to admit the letters as substantive evidence, because the district court allowed defense counsel to use the content of the letters the victim wrote to impeach her if she presented inconsistent testimony. Admission of the letters themselves would be cumulative, and it was within the district court's discretion to refuse to admit them. State v. Barela, 2019-NMCA-005, cert. granted. When extrinsic evidence reaches collateral matters, it is not admissible under this rule, but rather, a cross-examiner is bound and limited by whatever answers he elicits from the witness. State v. Ross, 1975-NMCA-056, 88 N.M. 1, 536 P.2d 265. Witness allowed to distinguish prior testimony but jury may consider interest. - Where defendants contend that it is useless to go to trial since a certain witness is going to testify according to his affidavit and distinguish his deposition testimony, and, even assuming he will so testify, he is an employee of one of the defendants and can be considered an interested witness, the jury may choose to believe that his prior statement, made before the case arose, was accurate and his subsequent affidavit colored by employee loyalty. Rodriguez v. State Highway Dep't, 1974-NMCA-083, 86 N.M. 535, 525 P.2d 895. May prove statement made if denied. - If the witness on cross-examination as to former statement made by him relative to subject matter of cause and inconsistent with his present testimony does not distinctly admit that he made such statement, proof may be given that he did make it after proper predicate for its admission has been laid. State v. Rodriguez, 1917-NMSC-058, 23 N.M. 156, 167 P. 426. No abuse of discretion in admitting hearing transcript. - The court did not abuse its discretion in admitting the full transcript of the prior inconsistent testimony of a witness where the witness remained available for cross-examination and insisted that she could not recall the prior inconsistent statements. The proponent was not required to confront the witness with each statement; the court properly admitted the transcript in the interest of economy and after the prosecutor attempted to read the prior testimony to the witness without prompting recollection. State v. Gonzales, 1992-NMSC-003, 113 N.M. 221, 824 P.2d 1023. Witness's prior written statement must be produced. - When a witness has made a prior written statement about that which he is called to testify, the accused is entitled to an order directing the prosecutor to produce the statement for inspection of the defendant. Any other result denies the defendant the right to confront the witnesses against him. State v. Herrera, 1972-NMCA-154, 84 N.M. 365, 503 P.2d 648. To admit prior confession voluntariness must be shown. - Admission of evidence of prior confession to impeach a defendant represents a denial of due process where voluntariness of such confession has not been shown and defendant denies or claims inability to recall the statement. State v. Turnbow, 1960-NMSC-081, 67 N.M. 241, 354 P.2d 533. Prior statement's voluntariness not issue when testimony inconsistent. - A prior written statement or one reduced to writing may be used on cross-examination without a hearing to determine voluntariness and cautionary hearing when a witness testifies inconsistent with such statement. State v. Paul, 1972-NMCA-043, 83 N.M. 619, 495 P.2d 797. B. LAYING FOUNDATION. Manner of impeachment. - The trial court did not abuse its discretion by allowing the prosecution to read into evidence prior statements of the witness without first asking questions and then using the transcript to impeach. State v. Dominguez, 2007-NMSC-060, 142 N.M. 811, 171 P.3d 750. Cross-examination no longer required. - This rule no longer requires that a witness be cross-examined on his inconsistent statements before the statements are admitted; however, the witness must be given an opportunity to explain or deny the statement. State v. Southworth, 2002-NMCA-091, 132 N.M. 615, 52 P.3d 987, cert. denied, 132 N.M. 551, 52 P.3d 411. Cannot impeach witness without calling matter to his attention. - A party may not show for purposes of impeaching a witness that he has made contradictory statements, without having first called them to his attention. Valencia v. Beaman, 1973-NMCA-056, 85 N.M. 82, 509 P.2d 274. Laying foundation calls attention of witness to impeaching evidence. - Where it is desired to contradict a witness by letters written by him, a proper foundation must be laid for their admission, calling attention of witness to those parts of letters which are to be used for that purpose. Kirchner v. Laughlin, 1892-NMSC-001, 6 N.M. 300, 28 P. 505. Foundation laid by either showing or reading impeaching writing. - Where the offer of defendant shows that testimony given on former trial was in writing, the foundation for its introduction as impeaching testimony could only be laid either by showing the written testimony to the witness or by reading it to him at the time he was interrogated. United States v. Fuller, 1889-NMSC-001, 5 N.M. 80, 20 P. 175. Witness must be made aware of evidence of contradictory statement. - Before a 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. Fletcher, 1932-NMSC-005, 36 N.M. 47, 7 P.2d 936; State v. Thompson, 1961-NMSC-036, 68 N.M. 219, 360 P.2d 637. Where it is sought to impeach witness by showing omission to make an important disclosure on a prior occasion presently related at the trial, the cross-examiner, before putting the impeaching question, must make a prima facie showing as to time, place and circumstance sufficient to warrant the inference that on such former occasion the opportunity and duty to make such disclosure existed. State v. Fletcher, 1932-NMSC-005, 36 N.M. 47, 7 P.2d 936. Cross-examination on witness's statements without laying foundation sometimes permissible. - The right to inquire of a witness as to a statement made by him is not dependent upon a further right to show the falsity of the answer, and cross-examination as to its contents was permissible, although foundation had not been laid for its reception as a confession. State v. Butler, 1934-NMSC-064, 38 N.M. 453, 34 P.2d 1100, overruled by State v. Turnbow, 1960-NMSC-081, 67 N.M. 241, 354 P.2d 533. Cross-examination of defendant as to statements made strictly limited. - Absent a proper showing to the satisfaction of the court that the confession is voluntary in point of law, the state may initially cross-examine a defendant as to whether he has made a statement contrary to his testimony but, upon his denial thereof or his claimed inability to recall, may proceed no further. State v. Turnbow, 1960-NMSC-081, 67 N.M. 241, 354 P.2d 533. Laying of foundation rule protects witness and not party. - The rule that in order to impeach a witness for prior inconsistent statements there must first be a foundation laid of the time, place and details of the statement in the examination of the witness being impeached is intended as a protection to the witness and not the parties. Nichols v. Sefcik, 1960-NMSC-025, 66 N.M. 449, 349 P.2d 678. Rule regarding laying foundation cannot be waived because witness unavailable. - The impossibility of laying a foundation because the witness was unavailable at the trial should not waive the rule requiring it because the rule was intended as a protection to the witness and not the parties. Brown v. General Ins. Co. of Am., 1962-NMSC-040, 70 N.M. 46, 369 P.2d 968. Law reviews. - For article, "Impeachment of Witnesses in New Mexico by Proof of Prior Inconsistent Statements," see 2 Nat. Resources J. 562 (1962). Am. Jur. 2d, A.L.R. and C.J.S. references. - 31A Am. Jur. 2d Expert and Opinion Evidence § 88. Admissibility of advertisements, brochures, catalogs and the like as containing admissions by a litigant contrary to a position taken by him, 44 A.L.R.2d 1027. Right of counsel representing party at trial, but employed by his liability insurer, to cross-examine or impeach him for asserted contradictory statements, 48 A.L.R.2d 1239. Propriety and prejudicial effect of showing, in criminal case, withdrawn guilty plea, 86 A.L.R.2d 326. Impeachment of accused as witness by use of involuntary or not properly qualified confession, 89 A.L.R.2d 478. Denial of recollection as inconsistent with prior statement so as to render statement admissible, 99 A.L.R.3d 934. Admissibility of affidavit to impeach witness, 14 A.L.R.4th 828. Use or admissibility of prior inconsistent statements of witness as substantive evidence of facts to which they relate in criminal case - modern state cases, 30 A.L.R.4th 414. Admissibility of impeached witness' prior consistent statement - modern state criminal cases, 58 A.L.R.4th 1014. Admissibility of impeached witness' prior consistent statement - modern state civil cases, 59 A.L.R.4th 1000. 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 Use of prior inconsistent statements for impeachment of testimony of witnesses under Rule 613, Federal Rules of Evidence, 152 A.L.R. Fed. 375. 98 C.J.S. Witnesses §§ 573 to 628.