N.M. R. Evid. 11-615
At a party's request, the court must order witnesses excluded so that they cannot hear other witnesses' testimony, or the court may do so on its own. This rule does not authorize excluding
N.M. R. Evid. 11-615
Committee commentary. - The language of Rule 11-615 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, in the introductory paragraph, substituted "court" for "judge" near the beginning, substituted "it may" for "he may" near the middle, and substituted "its own" for "his own" near the end; and substituted "the party's" for "his" in Paragraph C. Compiler's notes. - This rule is similar to Rule 615 of the Federal Rules of Evidence. Purpose of rule excluding witnesses is to give adverse party an opportunity to expose inconsistencies in their testimony and to prevent the possibility of one witness shaping his testimony to match that given by other witnesses at the trial. State v. Ortiz, 1975-NMCA-112, 88 N.M. 370, 540 P.2d 850. The purpose of the rule is to prevent witnesses from tailoring their testimony to that of another witness and to allow inconsistencies in the testimony to be exposed. State v. Trevino, 1991-NMCA-085, 113 N.M. 804, 833 P.2d 1170, aff'd sub nom. State v. Orosco, 1992-NMSC-006, 113 N.M. 780, 833 P.2d 1146. Prohibition against discussion among witnesses. - Although this rule does not specifically prohibit witnesses who have testified from discussing their testimony outside the courtroom with prospective witnesses, that prohibition is apparently part of the rule in New Mexico. State v. Reynolds, 1990-NMCA-122, 111 N.M. 263, 804 P.2d 1082. Exclusion of witnesses from courtroom is matter within discretion of the trial court and permitting a witness to testify who has remained in the courtroom in violation of the exclusion rule is also within the court's discretion. State v. Kijowski, 1973-NMCA-129, 85 N.M. 549, 514 P.2d 306. No abuse of discretion in excluding witness who had been present in courtroom during trial. - Since the matters about which a proffered witness would testify had been alluded to in the opening statement and in the testimony of other witnesses, it was within the discretion of the trial court to exclude the testimony of such witness because she had been present in the courtroom during the whole trial and had not been disclosed as a witness to the state. State v. Ruiz, 1995-NMCA-007, 119 N.M. 515, 892 P.2d 962. No abuse of discretion in denying exclusion of witness who read incident report prior to testifying. - Where defendant was charged with battery on a peace officer following an altercation between defendant and a corrections officer, during which defendant head-butted the officer in the mouth, causing a chipped tooth and a lacerated lip, and where an employee of the district attorney's office provided a witness with a copy of the corrections officer's incident report prior to testifying, the district court did not abuse its discretion in denying defendant's request for a mistrial, because the choice of remedy under Rule 11-615 NMRA is within the sound discretion of the district court, and cross-examination is a possible remedy for a violation of this rule, and defendant was given the opportunity to cross-examine the witness as to the clarity with which she remembered the incident independent of the incident report. State v. Salas, 2017-NMCA-057, cert. denied. Exclusion order not violative of due process. - In a proceeding for condemnation of property owned by a company, the trial court's order excluding all witnesses except for one representative designated by each party did not violate due process. City of Albuquerque v. Westland Dev. Co., 1995 -NMCA-136, 121 N.M. 144, 909 P.2d 25, cert. denied, 120 N.M. 828, 907 P.2d 1009, and cert. denied, 517 U.S. 1244, 116 S. Ct. 2499, 135 L. Ed. 2d 190 (1996). Permitting testimony of witness who violated "discussion" instructions discretionary. - Permitting a witness to testify who has violated the court's instruction not to discuss the case with other than the attorneys is within the trial court's discretion. State v. Kijowski, 1973-NMCA-129, 85 N.M. 549, 514 P.2d 306. Permitting witness who has violated this rule to testify is within the discretion of the trial court. State v. Simonson, 1983-NMSC-075, 100 N.M. 297, 669 P.2d 1092. Allowing testimony of a witness present in the courtroom. - Where defendant, who was convicted of criminal sexual penetration, testified that defendant never had sex with the victim, but that defendant had sex with the victim's sibling; after defendant testified, the State called the sibling as a rebuttal witness; the sibling had been in the court room throughout the testimony despite defendant having invoked Rule 11-615 NMRA and was not named as a witness before trial; the sibling testified that the sibling never had sex with defendant, did not testify as to whether defendant has sex with the victim, and was cross-examined by defendant; and defendant had sufficient notice that the State might seek to rebut defendant's defense that defendant had sex with the sibling, but not with the victim and an adequate opportunity to interview the sibling, defendant failed to demonstrate that defendant was prejudiced by the sibling's testimony. State v. Perez, 2014-NMCA-023, cert. denied, 2014-NMCERT-001. Broad discretion in trial court. - Decisions in this state interpret this rule to give the trial court broad discretion in its application. State ex rel. State Hwy. Dep't v. First Nat'l Bank, 1977-NMSC-104, 91 N.M. 240, 572 P.2d 1248. Limiting testimony of witness inadvertently present. - Where a defense witness was inadvertently present in the courtroom during the testimony of another defense witness and had heard the cross-examination and rehabilitation of the other defense witness, the trial court properly exercised its discretion in limiting the testimony of that witness to defendant's character and reputation. State v. Hovey, 1987-NMSC-080, 106 N.M. 300, 742 P.2d 512. Judge should determine whether counsel condoned violation of exclusion order. - The suggestion made in State v. Barboa, 1973-NMCA-025, 84 N.M. 675, 506 P.2d 1222, that it would be advisable for the trial judge to determine whether the counsel condoned the witness's violation of the exclusionary rule was substantially complied with by the trial judge's questioning of the prosecutor and the judge's questioning of the prosecutor and the judge's subsequent statement that the prosecutor was unaware that he would be calling the witness. State v. Ortiz, 1975-NMCA-112, 88 N.M. 370, 540 P.2d 850. Rule excluding witnesses takes effect upon request of any party and the decision as to what remedy is appropriate in the event the rule is violated is in the discretion of the trial judge with the controlling consideration being prejudice to the complaining party. State v. Ortiz, 1975-NMCA-112, 88 N.M. 370, 540 P.2d 850. Request to strike evidence violative of rule must be in record. - The appellate court could not consider whether the trial court improperly denied the defendant's alleged request to strike a witness' testimony because of the alleged attempt of that witness and another witness to manipulate their testimony in violation of the court's admonition not to discuss the case with each other, since the record of the trial court proceedings did not disclose any such request by the defendant. State v. Coates, 1985-NMSC-091, 103 N.M. 353, 707 P.2d 1163. No abuse of discretion in allowing prosecutrix to remain. - The exclusion of witnesses from the courtroom is a matter resting within the sound discretion of the trial court and there was nothing to indicate an abuse of discretion on the part of the trial court in permitting the prosecutrix to remain in the courtroom, or to be further called as a witness for the purpose of identifying evidence. State v. Carrillo, 1970-NMCA-127, 82 N.M. 257, 479 P.2d 537. Allowing testifying officer to remain in the courtroom. - Trial judge properly exercised his discretion to allow the officer to remain in the courtroom throughout the trial, where officer testified to a very narrow issue and was ordered not to talk to other witnesses. State v. Trevino, 1991-NMCA-085, 113 N.M. 804, 833 P.2d 1170, aff'd sub nom. State v. Orosco, 1992-NMSC-006, 113 N.M. 780, 833 P.2d 1146. Allowing testifying police investigator to remain in courtroom. - The trial court did not abuse its discretion in allowing police investigator to remain in courtroom because his testimony, if subject to any change, was impeachable through written investigative reports and testimony from the pretrial hearing. State v. Hernandez, 1993-NMSC-007, 115 N.M. 6, 846 P.2d 312. Witness's testimony permissible where no danger of conforming to others. - Where a rebuttal witness for the state was present in the courtroom while two other witnesses testified about an alleged argument between defendant and victim, one of whom denying it had occurred and the other relating no details, there was no danger that he had conformed his elaborate story to one or the other's testimony, and therefore, because in this particular situation the reasons for the exclusionary rule were not involved, it was not an abuse of the trial judge's discretion to allow the witness to testify. State v. Ortiz, 1975-NMCA-112, 88 N.M. 370, 540 P.2d 850. Remedies available to court where witnesses discuss testimony. - When a violation of the rule prohibiting witnesses from discussing their testimony with prospective witnesses occurs, the choice of remedy is within the sound discretion of the trial court. Declaration of a mistrial is one possible remedy. Others that should be considered by the court are striking testimony, citing for contempt, instructing the jury, permitting examination of the witnesses by counsel concerning how their testimony may have been tainted, and permitting argument by counsel. State v. Reynolds, 1990-NMCA-122, 111 N.M. 263, 804 P.2d 1082. Mistrial following discussion among witnesses denied where relation to subsequent testimony not shown. - Where the defendants contend that witnesses discussed the case with each other, in violation of the trial court's admonition prohibiting such discussion, the trial court does not abuse its discretion in denying the defendants' mistrial motion where the defendants make no effort to show what the witnesses discussed or whether the discussions related in any way to the substance of the subsequent testimony of one of the witnesses. State v. Lopez, 1981-NMCA-066, 96 N.M. 456, 631 P.2d 1324. Am. Jur. 2d, A.L.R. and C.J.S. references. - 75 Am. Jur. 2d Trial § 240 et seq. Exclusion from courtroom of expert witnesses during taking of testimony in civil case, 85 A.L.R.2d 478. Effect of witness' violation of order of exclusion, 14 A.L.R.3d 16. Counsel's reference, in presence of sequestered witness in state criminal trial, to testimony of another witness as ground for mistrial or reversal, 24 A.L.R.4th 488. Prejudicial effect of improper failure to exclude from courtroom or to sequester or separate state's witnesses in criminal case, 74 A.L.R.4th 705. Exclusion of witnesses under Rule 615 of Federal Rules of Evidence, 48 A.L.R. Fed. 484. Exclusion of witnesses under Rule 615 of Federal Rules of Evidence, 181 A.L.R. Fed. 549. 23A C.J.S. Criminal Law § 1195 et seq.; 88 C.J.S. Trial § 65.