N.M. R. Evid. 11-614
N.M. R. Evid. 11-614
Committee commentary. - The language of Rule 11-614 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 "court" for "judge" in the rule heading and throughout the rule, substituted "its own" for "his own" in Paragraph A, substituted "itself or by a party" for "himself or a party" in Paragraph B, and substituted "by it" for "by him" in Paragraph C. Compiler's notes. - This rule is similar to Rule 614 of the Federal Rules of Evidence. Judge should ordinarily refrain from intruding upon functions of counsel, thus shielding the court's position of impartiality from any contrary suggestion to the jury. State v. Caputo, 1980-NMCA-032, 94 N.M. 190, 608 P.2d 166. Judge must be careful not to add to party's burden of proof. - Because of his power and influence, and because of the tendency of the jury to place great emphasis upon what he says and does, the trial judge must be most careful not to say or do anything which would add to a party's burdens of proof, or detract from the presumptions to which a person charged with crime is entitled. State v. Caputo, 1980-NMCA-032, 94 N.M. 190, 608 P.2d 166. Trial court may properly call witness in civil proceeding as the court's own witness in order to arrive at the truth, and witnesses called by the court as the court's witnesses are subject to cross-examination by the parties to the suit. Sanchez v. Sanchez, 1973-NMSC-006, 84 N.M. 498, 505 P.2d 443. Parties must be allowed to cross-examine witness called by court. - It is error to deny plaintiff the right to cross-examine a witness called by the court since the trial court obviously did receive and consider a written report from this witness in deciding the issues and this report may possibly have had an effect upon the court's decision on the other principal issues litigated. Sanchez v. Sanchez, 1973-NMSC-006, 84 N.M. 498, 505 P.2d 443. Discretionary power of court to call witness must be exercised cautiously. - The discretionary power of the court to call a witness is one that should be exercised cautiously and is fraught with great danger which might improperly influence a jury if it were present. City of Portales v. Bell, 1963-NMSC-072, 72 N.M. 80, 380 P.2d 826. Proper exercise of judicial discretion demonstrated. - The trial court did not abuse its discretion where the questions asked by the court prior to the defendant's objection tended to clarify what had preceded, after the objection the trial court asked very carefully guarded questions, and the jury was instructed with respect to the court's questions. State v. Stallings, 1986-NMCA-086, 104 N.M. 660, 725 P.2d 1228. Questioning defendant in criminal case. - Paragraph B of this rule authorizes the trial court to question a witness, and there is no express exception as to a defendant in a criminal case; however, in all cases, the questions asked must be guarded, so as not to constitute an implied comment. State v. Stallings, 1986-NMCA-086, 104 N.M. 660, 725 P.2d 1228. Court should only rarely call witnesses in criminal proceeding. - The trial judge has a wide discretion in the conduct of a trial, and it is a permitted practice for the trial judge, in a civil proceeding, to call a witness where necessary, in order to arrive at the truth of the matter. However, in a criminal proceeding, such a practice should rarely be followed, as the court must be extremely careful to preserve an attitude of impartiality. City of Portales v. Bell, 1963-NMSC-072, 72 N.M. 80, 380 P.2d 826. Trial judge is more than mere umpire or moderator, and he may properly propound questions to the witnesses, so long as he keeps the same within the bounds demanded of him by his position as trial judge, and so long as he displays no bias against or favor for either of the litigants. State v. Sedillo, 1966-NMSC-093, 76 N.M. 273, 414 P.2d 500 (decided prior to the adoption of this rule). Trial judge may properly propound questions to witnesses, so long as he keeps the same within the bounds demanded of him by his position as trial judge, and so long as he displays no bias against or favor for either of the litigants. State v. Clark, 1971-NMCA-176, 83 N.M. 484, 493 P.2d 969, cert. denied, 83 N.M. 473, 493 P.2d 958. Trial judge may question a witness, but the questioning must not intimate any bias for or against either party. Crownover v. Nat'l Farmers Union Prop. & Cas. Co., 1983-NMSC-099, 100 N.M. 568, 673 P.2d 1301. Judge's questioning of witness affecting fairness of trial. - A judge abused the discretion allowed under this rule when she extensively questioned a witness concerning questions critical to the defendant's defense and made remarks which were improper. State v. Paiz, 1999-NMCA-104, 127 N.M. 776, 987 P.2d 1163. Leading questions by judge is not error, unless abuse of discretion is shown. State v. Crump, 1981-NMSC-134, 97 N.M. 177, 637 P.2d 1232. In a child sexual abuse case, where the court drew a stick figure to help the victim testify, the drawing was relevant, and the court's leading questions to the victim tended to clarify the evidence. State v. Benny E., 1990-NMCA-052, 110 N.M. 237, 794 P.2d 380. Asking witness whether she was defendant's wife not undue participation. - Mistrial was properly denied where the witness had previously testified that she had never seen the defendant prior to the time the offenses were committed and the trial judge did not unduly participate in questioning the witness, by asking her whether she was or had been married to the defendant, the question did not display bias for or against defendant. State v. Padilla, 1974-NMCA-029, 86 N.M. 282, 523 P.2d 17, cert. denied, 86 N.M. 281, 523 P.2d 16. Timely objection to court's questioning satisfactory. - Where an objection to the court's questioning of defendant was made at the instructions conference held after the noon recess, called immediately after the court concluded its questioning of defendant, the timeliness requirement of Paragraph C was satisfied. State v. Caputo, 1980-NMCA-032, 94 N.M. 190, 608 P.2d 166. Law reviews. - For article, "Survey of New Mexico Law, 1979-80: Evidence," see 11 N.M.L. Rev. 159 (1981). Am. Jur. 2d, A.L.R. and C.J.S. references. - 29 Am. Jur. 2d Evidence § 1 et seq. Court's witnesses (other than expert) in state criminal prosecution, 16 A.L.R.4th 352. Calling and interrogation of witnesses by court under Rule 614 of the Federal Rules of Evidence, 53 A.L.R. Fed. 498. 98 C.J.S. Witnesses §§ 348, 351.