N.M. R. Crim. P. Dist. Ct. 5-501
N.M. R. Crim. P. Dist. Ct. 5-501
Committee commentary. - Section 14 of Article 2 of the New Mexico Constitution gives the defendant a right to "demand the nature and cause of the accusation." This rule provides procedures for the exercise of the right to determine the "cause of the accusation" to obtain discovery of relevant evidence that may tend to prove or disprove the factual allegations of a criminal charge. A motion for discovery of evidence should not be confused with a motion for statement of facts pursuant to Rule 5-205 NMRA, which is intended to obtain more specificity regarding the factual manner in which the defendant is alleged to have committed his or her criminal acts.
This rule was derived from Rule 16(a) of the Federal Rules of Criminal Procedure. See generally, 62 F.R.D. 271, 304-313 (1974); 48 F.R.D. 553, 587-606 (1970).
This rule and Rule 5-502 require the prosecution and the defense to exchange certain information. Judicial involvement should be in the rare case.
Under Subparagraph (4) of Paragraph A of this rule, the state has a duty to disclose to the defense any reports prepared by experts in connection with the defendant's case.
Subparagraph (6) of Paragraph A of this rule was added in 1979 to make it clear that the state has a duty to provide the defense with exculpatory material evidence. See Brady v. Maryland, 373 U.S. 83 (1963) and Giles v. Maryland, 386 U.S. 66 (1967). Failure to produce such evidence may result in the entry of an order pursuant to Rule 5-505 or if discovered after trial in a new trial unless the nondisclosure constitutes harmless error. See Paragraph A of Rule 5-113 and United States v. Agurs, 427 U.S. 97 (1976).
There are a number of supreme court decisions recognizing the duty of the prosecutor to produce evidence which is material and exculpatory. See for example: Trimble v. State, 75 N.M. 183, 402 P.2d 162 (1965) (loss of certain letters and erasure of parts of tape held violation of due process of law); State v. Gomez, 75 N.M. 545, 408 P.2d 48 (1965) (failure, upon request, to disclose contents of supplemental police report held reversible error); State v. Morris, 69 N.M. 244, 365 P.2d 668 (1961) (failure to produce letter prior to trial held not suppression of material evidence requiring reversal); Chacon v. State, 88 N.M. 198, 539 P.2d 218 (Ct. App. 1975) (negligent nondisclosure of supplemental police report and statement of a witness misfiled in the district attorney's office found to be material evidence and reversible error); State v. Vigil, 79 N.M. 80, 439 P.2d 729 (Ct. App. 1968) (nondisclosure of evidence held not reversible error when defendant knew the evidence was in possession of the state and made no demand for its production); and State v. Turner, 81 N.M. 571, 469 P.2d 720 (Ct. App. 1970) (there must be particularized need for materials not produced for there to be reversible error).
Some of the appellate court decisions announced since the adoption of Subparagraph (5) of Paragraph A of this rule have not always indicated that the rule was being construed. Relying on a prerule decision, State v. Herrera, 84 N.M. 365, 503 P.2d 648 (Ct. App. 1972) holds that the defendant is entitled to statements of the witness, in that case a police report. State v. Vigil, 87 N.M. 345, 533 P.2d 578 (1975) holds that, once the witness has testified at trial the defendant is entitled to a copy of a written statement submitted by the witness to the grand jury. Subparagraph (5) of Paragraph A of this rule may require the statement of the witness to be disclosed prior to his testifying. (See Rule 5-506.)
In State v. Sparks, 85 N.M. 429, 512 P.2d 1265 (Ct. App. 1973), the court noted that this rule did not give the defendant a right to testimony of a witness before the grand jury. However, the court then held that the constitutional right to confrontation gave the defendant the right to the transcribed testimony for use in cross examination of the witness once the witness had testified. In State v. Felter, 85 N.M. 619, 515 P.2d 138 (1973), the supreme court made it clear that, absent some showing of particularized need, the defendant is not entitled to a copy of the grand jury testimony before the witness has testified at trial.
In State v. Quintana, 86 N.M. 666, 526 P.2d 808 (Ct. App.), cert. denied, 86 N.M. 656, 526 P.2d 798 (1974), the court held that the failure of the state to "strictly comply" with Subparagraph (5) of Paragraph A of this rule was not reversible error without a showing that substantial rights of the defendant had been prejudiced. In State v. Billington, 86 N.M. 44, 519 P.2d 140 (Ct. App. 1974), the court held that failure of the state to comply with the rule was grounds for continuance of the trial as a matter of law. The cases might be reconciled on the basis of the importance of the witnesses whose names were not disclosed by the state in each case.
Paragraph D of this rule (prior to the 1980 amendment) was derived from Rule 34(b) of the Federal Rules of Civil Procedure, the procedure for production of documents and things and entry upon land for inspection. Paragraph E of this rule was derived from American Bar Association Standards Relating to Discovery and Procedure Before Trial, Section 2.5 (Approved Draft 1970).
On the privilege of the state to refuse to disclose the identity of an informer, see Rule 11-510. See also, State v. Bauske, 86 N.M. 484, 525 P.2d 411 (Ct. App. 1974).
[As amended by Supreme Court Order No. 13-8300-008, effective for all cases pending or filed on or after May 13, 2013; as amended by Supreme Court Order No. 15-8300-010, effective for all cases pending or filed on or after December 31, 2015.]
ANNOTATIONS The 2015 amendment, approved by Supreme Court Order No. 15-8300-010, effective December 31, 2015, placed a duty on the State to identify, in its witness list, any witness that the State intends to call at trial that will provide expert testimony and to indicate the subject area on which the expert witness will testify; in Subparagraph A(5), after "call at the trial", added "identifying any witnesses that will provide expert testimony and indicating the subject area in which they will testify"; and in the committee commentary, added the fourth paragraph. The 2013 amendment, approved by Supreme Court Order No. 13-8300-008, effective May 13, 2013, revised the committee commentary. The 2007 amendment, effective March 15, 2007, rewrote Paragraph G to limit the scope of the definition of "statement" to verbatim recordings and to exclude notes which are in substance recitals of oral statements. See State v. Blackmer, 2005-NMSC-008, ¶ 26, 137 N.M. 258, 110 P.3d 66. The 1998 amendment, effective December 1, 1998, added present Paragraph E and redesignated former Paragraphs E through G as Paragraphs F through H.
For record of grand jury testimony, see Rule 5-506 NMRA and Section 31-6-8 NMSA 1978. For subsequent offenses under Riot Control Act, see Section 12-10-16 NMSA 1978. For subsequent stalking offenses, see Section 30-3A-3.1 NMSA 1978. For subsequent robbery offenses, see Section 30-16-2 NMSA 1978. For subsequent convictions as drug percursor, see Section 30-31B-12 NMSA 1978. For subsequent convictions for illegal use of telephone devices, see Section 30-33A-4 NMSA 1978. For sentencing of habitual offenders, see Sections 31-18-18 to 31-18-20 NMSA 1978. For imposition of an enhanced penalty for a second of subsequent driving while under the influence of alcohol or drugs, see Section 66-8-102 NMSA 1978. For forms on certificate and supplemental certificate of disclosure of information, see Rules 9-412 and 9-413 NMRA. I. GENERAL CONSIDERATION. Exclusion of witnesses is a proper sanction where discovery orders are not obeyed. - Where defendant, prior to trial, moved to exclude the state's witnesses due to the state's repeated failure to comply with the district court's discovery order that the state provide the defense with correct contact information for the witnesses listed on the state's witness list, the district court did not abuse its discretion in excluding the state's witnesses where the court found that the state had made insufficient efforts to confirm the accuracy of the addresses provided in the witness list, that defendant was prejudiced by the inability to communicate with essential witnesses, and by the delay, and where the sanction was tailored to fit the violation and the exclusion was the most effective and least severe way to achieve the desired results. State v. Le Mier, 2017-NMSC-017, rev'g No. 33,493, mem. op. (N.M. Ct. App. July 22, 2014). Factors to consider when imposing sanctions for violations of discovery orders. - Where defendant was indicted for shoplifting and conspiracy to commit shoplifting, and where the district court dismissed defendant's charges with prejudice due to the State's failure to timely turn over recordings of witness identification interviews as required by local rule, the dismissal resulted in an abuse of discretion, because the district court failed to explain the manner in which it considered culpability, prejudice, and lesser sanctions. State v. Lewis, 2018-NMCA-019, cert. denied. There is no provision in the Rules of Criminal Procedure that allows the prosecution to deny access to an expert witness not subpoenaed based on defendant's failure to pay an expert witness fee. State v. Harper, 2010-NMCA-055, 148 N.M. 286, 235 P.3d 625, cert. granted, 2010-NMCERT-006, 148 N.M. 582, 241 P.3d 180. Exclusion of witnesses as a sanction for violation of discovery order. - The exclusion of witnesses as a sanction requires an intentional violation of a court order, prejudice to the opposing party, and consideration by the court of lesser sanctions. State v. Harper, 2011-NMSC-044, 150 N.M. 745, 266 P.3d 25, aff'g in part and rev'g in part, 2010-NMCA-055, 148 N.M. 286, 235 P.3d 625. Where the district court established a deadline for the interview of witnesses; the prosecutor met with the minor victim and the victim's relative to arrange an interview and the victim agreed to appear for an interview; the prosecutor scheduled an interview of the victim on the day of the deadline; on the day before the interview was scheduled, the prosecutor confirmed the victim's appearance for the interview; the witness failed to appear for the interview; the prosecutor asked the district court for an extension of time to schedule an interview after the witness had been subpoenaed; defendant had the victim's safehouse interview; defendant did not file a motion to compel interviews, issue subpoenas, or contend that the delay was prejudicial; and ample time remained before the scheduled trial date to interview witnesses, the court's exclusion of the victim as a witness at trial constituted an abuse of discretion. State v. Harper, 2011-NMSC-044, 150 N.M. 745, 266 P.3d 25, aff'g 2010-NMCA-055, 148 N.M. 286, 235 P.3d 625. Where the district court orally established a deadline for the interview of witnesses; the prosecutor did not schedule an interview for the state's medical expert witness because payment of a witness fee had not been approved; when the court established the deadline, it was on notice that payment of a witness fee was an issue, but did not specify whether, when or how a witness fee was to be paid or that failure to produce the witness for an interview by the deadline would result in the exclusion of the witness from testifying at trial; the court did not consider a less severe sanction than exclusion of the witness; and there was no proof of prejudice to defendant or an intentional refusal by the prosecutor to obey the court's discovery directive, the court's exclusion of the expert witness as a witness at at trial constituted an abuse of discretion. State v. Harper, 2011-NMSC-044, 150 N.M. 745, 266 P.3d 25, rev'g 2010-NMCA-055, 148 N.M. 286, 235 P.3d 625. Sanctions for failure to comply with court's discovery order. - Where defendant's trial date was extended four times by the state because necessary witness interviews had not been completed; for a period of two years, the state had refused to make its expert witness available for interviews until defendant paid the expert a witness fee; the trial court entered an order setting a discovery deadline; the state maintained its refusal to schedule an interview with the expert despite the court's order; the state did not contest the order or request that the court attach conditions to the scheduling of interviews; and the state did not request a ruling as to whether its insistence on prepayment of a witness fee was proper or request an order to either compel defendant to pay the fee or to assist defendant obtain payment of the witness fee, the court did not abuse its discretion by excluding the expert witness's testimony. State v. Harper, 2010-NMCA-055, 148 N.M. 286, 235 P.3d 625, cert. granted, 2010-NMCERT-006, rev'd, 2011-NMSC-044, 150 N.M. 745, 266 P.3d 25. Exclusion of witnesses is an appropriate sanction for violation of scheduling order. - Where the district court entered a scheduling order with appropriate deadlines that were clear and unambiguous, and where the prosecutor failed to follow the clear and unambiguous witness-interview deadline, failed to seek an extension of that deadline, failed to identify the witnesses it actually intended to call at trial, and failed to ensure that defense counsel was provided with a copy of the expert witness's report, the prosecutor's conduct prejudiced the defense by preventing defense counsel from effectively preparing and presenting the defendant's case, and the district court did not abuse its discretion in entering an order excluding the state's witnesses that had not been interviewed by the defense. State v. Cazares, 2018-NMCA-012. Exclusion of witnesses as a sanction for violation of special order. - In order for the district court to exclude material witnesses, there must be an intentional refusal to comply with a court order, prejudice to the opposing party, and consideration of less severe sanctions. State v. Navarro-Calzadillas, 2017-NMCA-034, cert. granted. Where defendant filed a motion to exclude witnesses due to the State's failure to meet certain deadlines set forth in the special calendar portion of the former version of a local rule, the district court abused its discretion in granting defendant's motion because the court failed to consider less severe sanctions. State v. Navarro-Calzadillas, 2017-NMCA-034, cert. granted. Exclusion of witnesses and audio-visual evidence. - Where defendant filed motions, under the former version of local rule LR2-308, to exclude witnesses and to suppress all audio and video evidence based on the State's refusal to assist in scheduling witness interviews in the four months since defendant had been arraigned and for failure to comply with its discovery obligations, the district court abused its discretion in granting defendant's motions, because, with regard to the motion to exclude witnesses, no deadline for witness interviews was included in the scheduling order and, based on the requirements of the local rule, the deadline for pretrial interviews had not yet passed when defendant filed his motion, and with regard to the motion to suppress, the court failed to consider less severe sanctions and defendant was not prejudiced because he received the discovery four months prior to trial and two months prior to the pre-trial motions deadline. State v. Seigling, 2017-NMCA-035, cert. granted. Denial of motion to exclude witness not an abuse of discretion. - In defendant's trial for shoplifting and conspiracy to commit shoplifting, the district court did not abuse its discretion in denying defendant's motion to exclude a state's witness after the state missed a court-imposed deadline to set up the witness interview, because the state demonstrated good faith by trying to set up the interview prior to the deadline and the interview was conducted several months prior to trial, suggesting that defendant was able to effectively use the information from the interview at trial. State v. Gallegos, 2016-NMCA-076, cert. denied. Sanctions for failure to comply with court's discovery order. - Where the trial court entered an order setting a discovery deadline; the state scheduled an interview with the victim on the last day for discovery to give defendant time to consider a plea bargain which would have been withdrawn, pursuant to the state's policy, once defendant interviewed the victim; at no time had the state refused to make the victim available for an interview; the victim was contacted personally to set the interview date and received a reminder the day before the scheduled interview; the state did not subpoena the victim because the state had no reason to believe the victim would not attend the interview; the victim failed to appear at the interview; the state was willing to reschedule the interview under subpoena; and several months remained before the trial deadline, the court abused its discretion by excluding the victim's testimony. State v. Harper, 2010-NMCA-055, 148 N.M. 286, 235 P.3d 625, cert. granted, 2010-NMCERT-006, rev'd, 2011-NMSC-044, 150 N.M. 745, 266 P.3d 25. Definition of "statement" in Paragraph G of this rule is broad. State v. Blackmer, 2005-NMSC-008, 137 N.M. 258, 110 P.3d 66. Despite the breadth of the definition of "statement", there are limits on the state's duty to disclose witness' statements. State v. Blackmer, 2005-NMSC-008, 137 N.M. 258, 110 P.3d 66. An undocumented statement is not within the definition of "statement" in Paragraph G of this rule. State v. Blackmer, 2005-NMSC-008, 137 N.M. 258, 110 P.3d 66. Dismissal with prejudice for failure to comply with discovery order. - Where defendant was stopped for driving while intoxicated; there was a gap of six minutes in the videotape of the stop; defendant sought specific discovery of the arresting officer's private cell phone records for the time of the six-minute gap; defendant showed that the cell phone records were in the control of the state, because they were in the possession of the officer during the time in question; defendant showed that the cell phone records were potentially material to the defense given that the records might contain information indicating why the officer stopped defendant; defendant showed that denial of the discovery was prejudicial in that the information was material to the defense of unlawful stop, but not produced, defendant would be denied the opportunity to prove an unlawful stop and obtain suppression relief; the district court ordered the state to determine the existence of records within the state's control and produce the records or make them available for an in camera review and permitted the state to seek protection from production based on lack of relevance or confidentiality; and the state refused to comply with the court's discovery order, the court did not abuse its discretion in dismissing the case with prejudice. State v. Ortiz, 2009-NMCA-092, 146 N.M. 873, 215 P.3d 811. Deprivation of evidence. - Where defendant claims that he is prejudiced by late disclosure of witnesses and documents, defendant must demonstrate that the state breached a duty or intentionally deprived defendant of evidence; that the evidence was material because there is a reasonable probability that had the evidence been disclosed, the result of the proceedings would have been different; that the nondisclosure of the evidence prejudiced the defendant because defendant's case would have been improved by an earlier disclosure or that it would have been prepared differently for trial; and that the district court did not cure the failure to timely disclose the evidence. State v. Duarte, 2007-NMCA-012, 140 N.M. 930, 149 P.3d 1027; State v. Ruiz, 2007-NMCA-014, 141 N.M. 53, 150 P.3d 1003, cert. denied, 2007-NMCERT-001. Late disclosure of evidence not prejudicial. - Where defendant was charged with forgery and identity theft based on allegations of check fraud at Wal-Mart, the trial court did not abuse its discretion in admitting the testimony of a records custodian and in admitting records of database searches for transactions appearing to involve defendant, because the late substitution of the records custodian for another records custodian that had previously been disclosed to defendant did not undermine defendant's preparation for trial, the records produced by the records custodian did not contain any new information not included in an earlier disclosure, and defendant did not demonstrate prejudice when he had the opportunity to interview the late-disclosed witness prior to trial. State v. Imperial, 2017-NMCA-040, cert. denied. Trial court did not abuse its discretion in admitting late-disclosed evidence. - Where defendant, a franchisee, wrote checks provided by franchisor payable to herself and co-defendant, neither of whom was authorized to receive these funds, in amounts totaling over $200,000, the trial court did not abuse its discretion in admitting late-disclosed evidence that defendant was aware that she was not permitted to write checks to herself and that the use of the checks was limited to payments for nurses in amounts of $500 or less, because the late-disclosed evidence was cumulative of one witness's testimony, and the defense, having interviewed the witness prior to trial, was aware of this evidence. Because defendants were already aware of the substance of this evidence, earlier disclosure of the evidence would not have changed the outcome of the trial. State v. Candelaria, 2019-NMCA-032, cert. denied. Victim advocate employed by district attorney's office is part of the prosecution team. State v. Blackmer, 2005-NMSC-008, 137 N.M. 258, 110 P.3d 66. Purpose of rule is: (1) to facilitate plea discussions; (2) to facilitate preparation for cross-examination; and (3) to allow the taking of a deposition or statement. State v. Quintana, 1974-NMCA-095, 86 N.M. 666, 526 P.2d 808, cert. denied, 86 N.M. 656, 526 P.2d 798. This rule governs discovery disclosure by the State. State v. McDaniel, 2004-NMCA-022, 135 N.M. 84, 84 P.3d 701, cert. denied, 2004-NMCERT-002. The three-part test under which a conviction must be reversed includes three elements: (1) the state either breached some duty or intentionally deprived the defendant of evidence; (2) the improperly "suppressed" evidence was material; and (3) the suppression of this evidence prejudiced the defendant. Where the state initially deprives the defendant of evidence but then later produces the evidence, a fourth consideration is necessary; namely, whether the failure to timely disclose the evidence was cured by the trial court. State v. Sandoval, 1982-NMSC-143, 99 N.M. 173, 655 P.2d 1017. Prejudice part of the test to obtain reversal for a violation of this rule requires the court to assess whether the omitted evidence created a reasonable doubt which did not otherwise exist. State v. Clark, 1986-NMCA-095, 105 N.M. 10, 727 P.2d 949. Analysis of polygraph by state expert not called as a witness. - Where defendant was charged with criminal sexual contact of a minor; defendant submitted to a polygraph examination arranged by defense counsel; the data produced during the examination, which defendant presented at trial, showed that defendant's denial of the charge was true; the State had its polygraph expert analyze the polygraph data; the State did not give notice of or call an expert witness regarding the polygraph or offer evidence of any alternative evaluation of the polygraph data; and the State refused to disclose the findings of its polygraph expert, the court did not err in denying defendant access to evidence produced by the State's polygraph expert, because the evidence would not have created a reasonable probability of a different outcome in the case even if it were in accord with defendant's own polygraph evidence. State v. Romero, 2013-NMCA-101, cert. denied, 2013-NMCERT-009. Destruction of evidence. - Destruction of seized marijuana by a federal agency did not prejudice defendant because she essentially did not lose the benefit of a defense without the evidence. State v. Sanchez, 1999-NMCA-004, 126 N.M. 559, 972 P.2d 1150. Lost evidence. - Where defendant was charged with four counts of sexual abuse of a minor based on allegations that defendant anally penetrated the victim; the investigating officer recorded an initial interview of the victim on a digital recorder and later transferred the file to a computer; in the initial interview, the victim said that defendant attempted oral penetration, but never mentioned anal penetration; in a pretrial interview and during grand jury testimony, the victim said that defendant completed anal penetration; the State could not produce the interview because it had been lost due to problems with the investigating officer's computer; and defendant only sought to use the initial interview as impeachment, although the initial statement of the victim was material, defendant did not suffer prejudice by the loss of the initial interview because the investigating officer would have testified that the victim did not disclose anal penetration in the initial interview and the State was willing to stipulate or offer a jury instruction regarding the initial interview and the circumstances regarding the lost recording, so that the actual recording was not necessary to prove the inconsistency in the victim's statements. State v. Redd, 2013-NMCA-089, cert. denied, 2013-NMCERT-008. Loss of evidence did not prejudice defendant. - Where the State inadvertently lost photographic evidence of the crime scene prior to defendant's trial for aggravated battery with a deadly weapon, the district court did not abuse its discretion in refusing to mandate sanctions where defendant failed in his burden to establish the materiality of the evidence and where defendant was not prejudiced by the lost evidence because the photographic evidence would not have resolved any contested issue. State v. Branch, 2018-NMCA-031, replacing 2016-NMCA-071, 387 P.3d 250, cert. denied. Destruction of evidence. - Where the State inadvertently lost photographic evidence of the crime scene prior to defendant's trial for aggravated battery with a deadly weapon, the district court did not abuse its discretion in refusing to mandate sanctions where defendant failed to establish the materiality of the evidence and where defendant was not prejudiced by the lost evidence, because the photographic evidence would not have resolved any contested issue. State v. Branch, 2016-NMCA-071, 387 P.3d 250, replaced by 2018-NMCA-031, and cert. quashed. Delay in disclosing evidence. - Where delay in conducting scientific tests was caused by a combination of factors, including defendant's unavailability prior to his arrest, the state's workload, and the complexity of the testing, the state did not breach its duty to disclose test results in a timely fashion once they were available. State v. Rojo, 1999-NMSC-001, 126 N.M. 438, 971 P.2d 829. Tape-recorded police interview disclosed after trial. - Where the State failed to produce a recording of defendant's post-arrest interview; the interview was found after trial and provided to defense counsel; there was no evidence of bad faith on the part of the State; an officer present at the interview testified at trial and was cross-examined by defense counsel, including specific questions about the missing recoding and the notes taken by the officer and a fellow officer who was present at the interview; the State presented as evidence the officers' notes; in the officers' notes and in the recording, defendant admitted selling methamphetamine and named person who was the source of the drugs; at trial, defendant denied selling drugs or knowing the person who was the source of the drugs; and had the recording been available at trial, the recording would have supported the State's evidence and contradicted defendant's claims, defendant failed to establish that defendant was prejudiced by the discovery and disclosure of the recording after defendant's trial. State v. Silvas, 2013-NMCA-093, cert. granted, 2013-NMCERT-009. Negligent noncompliance punishable. - The state can be found to be in contempt not only for wilful noncompliance with this rule but also for negligent noncompliance. State v. Wisniewski, 1985-NMSC-079, 103 N.M. 430, 708 P.2d 1031. Waiver of trial court error by compromise. - Record of trial revealing that defense counsel raised objection for failure to order state to furnish information of the beginning of the trial and counsel's acceptance of compromise on this point constitutes a waiver by defendant of the trial court's failure to order the state to furnish information at the beginning of the trial. State v. Snow, 1972-NMCA-138, 84 N.M. 399, 503 P.2d 1177, cert. denied, 84 N.M. 390, 503 P.2d 1168 (decided under former law). Sufficiency of indictment. - Indictments alleging fraud filed against several defendants were not vague and adequately apprised them of the specific charges against them, where the defendants had access to the grand jury proceedings, the prosecutor notified them that the state's file was open for their examination, and the state filed a statement of facts in response to defendants' motion that it be required to identify those practices, representations, or matters of conduct which were alleged to have been fraudulent. State v. Crews, 1989-NMCA-088, 110 N.M. 723, 799 P.2d 592. Availability of discovery at probation revocation hearing. - A probationer was entitled to reasonable discovery, including disclosure of adverse witnesses, prior to a probation revocation hearing. State v. DeBorde, 1996-NMCA-042, 121 N.M. 601, 915 P.2d 906. Law reviews. - For survey, "Children's Court Practice in Delinquency and Need of Supervision Cases Under the New Rules," see 6 N.M.L. Rev. 331 (1976). For article, "Survey of New Mexico Law, 1979-80: Criminal Law and Procedure," see 11 N.M.L. Rev. 85 (1981). For annual survey of New Mexico law relating to evidence, see 12 N.M.L. Rev. 379 (1982). For article, "Survey of New Mexico Law, 1982-83: Criminal Procedure," see 14 N.M.L. Rev. 109 (1984). Am. Jur. 2d, A.L.R. and C.J.S. references. - 21 Am. Jur. 2d Criminal Law §§ 1258 to 1262; 23 Am. Jur. 2d Depositions and Discovery § 1 et seq. Right of accused in state courts to inspections or disclosure of evidence in possession of prosecution, 7 A.L.R.3d 8. Right of defendant in criminal case to inspection of statement of prosecution's witness for purposes of cross-examination or impeachment, 7 A.L.R.3d 181. Right of accused in state courts to inspection or disclosure of tape recording of his own statements, 10 A.L.R.4th 1092. Accused's right to production of composite drawing of subject, 13 A.L.R.4th 1360. Exclusion of evidence in state criminal action for failure of prosecution to comply with discovery requirements as to physical or documentary evidence or the like - modern cases, 27 A.L.R.4th 105. Right of accused in state courts to have expert inspect, examine, or test physical evidence in possession of prosecution - modern cases, 27 A.L.R.4th 1188. Exclusion of evidence in state criminal action for failure of prosecution to comply with discovery requirements as to statements made by defendants or other nonexpert witnesses - modern cases, 33 A.L.R.4th 301. What is accused's "statement" subject to state court criminal discovery, 57 A.L.R.4th 827. Failure of police to preserve potentially exculpatory evidence as violating criminal defendant's rights under state constitution, 40 A.L.R.5th 113. Failure of state prosecutor to disclose exculpatory photographic evidence as violating due process, 93 A.L.R.5th 527. Use of Freedom of Information Act (5 USCS § 552 ) as substitute for, or as means of, supplementing discovery procedures available to litigants in federal civil, criminal, or administrative proceedings, 57 A.L.R. Fed. 903. Constitutional duty of federal prosecutor to disclose Brady evidence favorable to accused, 158 A.L.R. Fed. 401. 21A C.J.S. Criminal Law §§ 792, 793, 816; 23 C.J.S. Depositions and Discovery § 108 et seq. II. INFORMATION SUBJECT TO DISCLOSURE. Work product. - The New Mexico rules for criminal procedure contain no general rule protecting discovery of work product. State v. Blackmer, 2005-NMSC-008, 137 N.M. 258, 110 P.3d 66. The criminal procedure rules expressly protect some defense counsel work product but do not expressly protect a prosecutor's work product. State v. Blackmer, 2005-NMSC-008, 137 N.M. 258, 110 P.3d 66. Material that is opinion work product should have the same protection in criminal actions as in civil actions; that material enjoys nearly absolute immunity. State v. Blackmer, 2005-NMSC-008, 137 N.M. 258, 110 P.3d 66. Inclusion of undocumented verbal assertions within the scope of the authorized interview of the victim by a victim advocate goes beyond the rule. State v. Blackmer, 2005-NMSC-008, 137 N.M. 258, 110 P.3d 66. This rule broadens the right of discovery. State v. Sparks, 1973-NMCA-108, 85 N.M. 429, 512 P.2d 1265. Evidence which the state intends to use at trial must be disclosed. State v. Clark, 1986-NMCA-095, 105 N.M. 10, 727 P.2d 949. District attorney should not hesitate to show his entire file to defendant, as it is the district attorney's primary duty to see that the defendant has a fair trial and that justice is done. State v. Manus, 1979-NMSC-035, 93 N.M. 95, 597 P.2d 280. Prosecution did not violate this rule when it failed to turn over material it neither possessed nor controlled and because the prosecution was not in control of the material, it was error for the trial court to hold them responsible for the delay in producing the discovery. State v. Jackson, 2004-NMCA-057, 135 N.M. 689, 92 P.3d 1263, cert. granted, 2004-NMCERT-005. There is no reversible error absent showing of prejudice by the state's nondisclosure of information, and the burden is on defendant to show that he has been prejudiced by the nondisclosure. State v. Perrin, 1979-NMSC-050, 93 N.M. 73, 596 P.2d 516. Right to testimony of witness before grand jury. - This rule gives a defendant the right to "any recorded testimony of the defendant before a grand jury", but no parallel right is accorded for the testimony of a witness before the grand jury. Once witness has testified at criminal trial, about that which he testified before the grand jury, the accused is entitled to examination of that witness's grand jury testimony relating to the crime. State v. Sparks, 1973-NMCA-108, 85 N.M. 429, 512 P.2d 1265. Once the witness has testified at the criminal trial about that which he testified before the grand jury, the accused is entitled to an order permitting examination of that portion of the witness' grand jury testimony relating to the crime for which defendant is charged; however, the accused's examination of the grand jury testimony of the witness should be confined to matters relating to the offense with which the accused is charged and for which he is being tried, and about which the witness testified before the grand jury. State v. Vigil, 1973-NMSC-123, 85 N.M. 735, 516 P.2d 1118. Defendant, at criminal trial, is entitled to inspect grand jury testimony of state's witnesses where prosecutor calls state's witnesses and uses grand jury testimony as basis for his questions. State v. Morgan, 1960-NMSC-087, 67 N.M. 287, 354 P.2d 1002 (decided under former law). Reference to grand jury testimony. - Mere reference to the fact that the witness had previously testified before the grand jury does not constitute a use of the prior testimony entitling defendant to grand jury testimony. State v. Baca, 1973-NMCA-054, 85 N.M. 55, 508 P.2d 1352 (decided under former law). Solution to problem of availability of grand jury testimony is found in 31-6-8 NMSA 1978. State v. Felter, 1973-NMSC-102, 85 N.M. 619, 515 P.2d 138. Limited right to discovery under former law. - Prior to enactment of these rules, there was no right to discovery by a defendant in criminal proceedings under New Mexico statutes or rules. Discovery was accorded only where to deny it would have deprived a defendant of a constitutional right, and where a particularized need had been demonstrated. State v. Turner, 1970-NMCA-054, 81 N.M. 571, 469 P.2d 720 (decided under former law). Scope of duty to produce information. - Under Subdivision (a)(5) (see now Paragraph A(3)) the district attorney must, upon request of the defendant, produce any of the described items which are favorable or unfavorable to the defendant, but which are necessary or essential in aiding the defendant in the preparation of his defense, i.e., which bear upon the guilt or innocence of the accused. The district attorney cannot hide behind negligent or deliberate suppression of any one of the items described nor should he hesitate to show his entire file to the defendant, since it is not the primary duty of the district attorney to convict a defendant, but to see that the defendant has a fair trial and that justice is done. Chacon v. State, 1975-NMCA-094, 88 N.M. 198, 539 P.2d 218. The state has a duty to disclose material evidence favorable to the defendant, of which it has knowledge. The defendant also has a corresponding duty to make available to the prosecution his or her list of witnesses and such documents and papers and reports which he or she intends to use as evidence at trial, and there shall be a continuing duty of disclosure on both of the parties. State v. Stephens, 1982-NMSC-128, 99 N.M. 32, 653 P.2d 863. The state must disclose items which are material to the preparation of the defense. State v. Clark, 1986-NMCA-095, 105 N.M. 10, 727 P.2d 949. Rule does not provide for discovery of criminal record of decedent of whose murder defendant is charged. State v. Marquez, 1974-NMCA-129, 87 N.M. 57, 529 P.2d 283, cert. denied, 87 N.M. 47, 529 P.2d 273. Other police investigations. - Defendant had no right to disclosure of police investigations of other murders, which he sought to show were linked to the murder for which he was convicted. State v. Brown, 1998-NMSC-037, 126 N.M. 338, 969 P.2d 313. Accused must show more than mere desire for all prosecution's information. - For an accused to be granted the right to inspect evidence in the possession of the prosecution, he must show something more than a mere desire for all the information obtained by the prosecution. State v. Tackett, 1967-NMSC-207, 78 N.M. 450, 432 P.2d 415, cert. denied, 390 U.S. 1026, 88 S. Ct. 1414, 20 L. Ed. 2d 283 (1968) (decided under former law). Physical delivery not contemplated. - This rule does not necessarily contemplate the physical delivery of items into the hands of defense counsel, rather it contemplates a request specifying a reasonable time, place and manner of making the inspection and performing the related acts, and where the defendant did not make such a request but instead went directly to the trial court and obtained an order which made no such specification, and took no steps to have the state produce and permit inspection of the items, he cannot complain. State v. Quintana, 1974-NMCA-095, 86 N.M. 666, 526 P.2d 808, cert. denied, 86 N.M. 656, 526 P.2d 798. Use of confidential records. - Records may be confidential as against the public at large but an inspection must be allowed when the defendant's guilt or innocence may hinge on whether the jury believes the arresting officer is the aggressor. State v. Pohl, 1976-NMCA-089, 89 N.M. 523, 554 P.2d 984. Where defendant, in a prosecution for battery upon a peace officer, had shown two prior instances of the officers' alleged misconduct, her request for an in camera inspection by the judge of all records of internal affairs investigations concerning allegations of police brutality or excessive use of force which had been filed against the officer could not be called a fishing expedition, and the trial court erred in not conducting such an inspection to determine whether the files contained evidence relevant and material to the defense; the judgment was conditionally affirmed pending such a determination, since in the absence of a determination of what the files would have shown the court could not hold there was no prejudice. State v. Pohl, 1976-NMCA-089, 89 N.M. 523, 554 P.2d 984. Effect of suppression of evidence. - Suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution. State v. Turner, 1970-NMCA-054, 81 N.M. 571, 469 P.2d 720 (decided under former law). The deliberate suppression by the prosecutor of evidence favorable to and requested by the accused violates due process when the evidence is material either to guilt or punishment. State v. Stephens, 1982-NMSC-128, 99 N.M. 32, 653 P.2d 863. Failure to comply not prejudicial. - The defendant was not prejudiced by the state's failure to disclose the plea agreement documents pursuant to this rule prior to offering them into evidence at the habitual offender hearing. State v. Roybal, 1995-NMCA-097, 120 N.M. 507, 903 P.2d 249. Failure to comply not prejudicial where chemist's worksheets not submitted. - Defendant's claim on appeal that admission of a chemist's testimony concerning test results was plain error because the chemist did not bring his worksheets to court, thus denying defendant the right to cross-examine concerning underlying facts as authorized by the rules of evidence, was without merit, since defendant could have but did not inform himself of the contents of the worksheets by proceeding under this rule. State v. Carrillo, 1975-NMCA-103, 88 N.M. 236, 539 P.2d 626. Failure to disclose complete scientific reports was not prejudicial. - Where defendant and defendant's co-defendant were charged with attempting to kidnap the victim and then shooting and killing the victim; at trial, the State's toxicology expert referred to a toxicology report that differed from the toxicology report that defendant had received in discovery; the State did not disclose to defendant that the State had prepared a new toxicology report; the State's ballistics expert used bullet and fragment weights to determine the caliber of the gun that had fired the bullets taken from the victim's body and the victim's car; the two pages of the thirty-three page ballistics report that defendant received in discovery did not contain the weights of the bullets; defendant requested discovery on two occasions; the State breached its duty to disclose; the reports were relevant to the issues in the case; defendant made no assertion as to how any difference in the reports used at trial and those provided during discovery would have materially altered defendant's defense; and the jury had ample evidence to convict defendant of first degree murder even if the bullets did not come from defendant's gun; the raw data in the reports was available to defense counsel, but defense counsel failed to request it; and the district court allowed defendant a short time to meet with the ballistics expert and review the expert's notes, defendant was not prejudiced by the non-disclosure of the expert reports. State v. Ortega, 2014-NMSC-017. Or where blood test witness and copies not provided. - Despite the fact that the state verbally informed defense counsel of blood type test results, but did not list as a witness the agent who later testified about it, and did not provide written copies of the test results nor make specimens available for independent testing, the failure to comply with the rules was not prejudicial to the conduct of the defense. State v. Quintana, 1974-NMCA-095, 86 N.M. 666, 526 P.2d 808, cert. denied, 86 N.M. 656, 526 P.2d 798. Or evidence exculpating defendant. - Prior to enactment of rules of criminal procedure, court of appeals held that trial court did not err in denying defendant's motion for mistrial upon the ground that defendant did not know until near the end of the state's case that defendant's fingerprints had been sought and not found on the allegedly stolen car and an order had been granted to give defendant all exculpatory matter, where it was not shown that defendant was prejudiced in his defense, nor does it appear that defendant was denied the right to secure the presence at the trial of the officer who had unsuccessfully attempted to secure the fingerprints. State v. Sluder, 1971-NMCA-095, 82 N.M. 755, 487 P.2d 183 (decided under former law). Data underlying furnished test report available but not requested. - Where during the state's opening argument the comment was made that primer residue had been found on defendant's hands, and defense counsel objected to the statement as "not true," claiming that the expert's report furnished to him concluded that the test on defendant was "negative," but the state explained that the raw test data, according to the expert, showed some residue, though insufficient to establish the results as "positive," a mistrial would not have been required if the motion had been made, as the state had furnished "any results or reports . . . of scientific tests," as required by this rule, and the underlying data was available if it, too, had been requested. State v. Hovey, 1987-NMSC-080, 106 N.M. 300, 742 P.2d 512. Court conducts in camera hearing to determine whether eyewitness' identity subject to disclosure. - Where an informer's testimony, pursuant to Rule 510, N.M.R. Evid. (see now Rule 11-510 NMRA), discloses the identity of a possible eyewitness to a crime, the trial court, under the disclosure requirements of Subdivision (e) (see now Paragraph E) of this rule and Rule 30, N.M.R. Crim. P. (see now Rule 5-505 NMRA), should conduct an in camera hearing to determine, first, whether the possible eyewitness would be able to give testimony that is relevant and helpful to the defense of the accused or is necessary to a fair determination of the defendant's guilt or innocence, and, second, whether disclosure would subject the possible eyewitness to a substantial risk of harm outweighing any usefulness of the disclosure to defense counsel. State v. Gallegos, 1981-NMCA-047, 96 N.M. 54, 627 P.2d 1253, overruled on other grounds by State v. Martin, 1984-NMSC-077, 101 N.M. 595, 686 P.2d 937. Defendant not prejudiced by inadvertent nondisclosure of evidence. - Where after a tape was played to the jury, the state informed the court that the tape had not been available to the defendant in the police evidence locker, and that the tape had been given to the defendant in an inaudible form only, the trial court found that, although there was a technical violation of this rule, it was due to inadvertence and lack of communication, and that the defendant was not prejudiced by the nondisclosure of the tape. State v. McGee, 1980-NMCA-180, 95 N.M. 317, 621 P.2d 1129. Hypnosis of witness must be disclosed. - It is incumbent upon either the prosecution or defense to disclose to opposing counsel that a witness called by a party has undergone hypnosis in order to facilitate memory recall. State v. Beachum, 1981-NMCA-137, 97 N.M. 682, 643 P.2d 246. Lack of opportunity to interview witness held not grounds for continuance. - The trial court does not err in refusing to grant a mistrial or a continuance because defense counsel lacked an opportunity to interview a witness. State v. Ewing, 1982-NMCA-030, 97 N.M. 484, 641 P.2d 515. Denial of in-camera inspection of police files. - Prior to enactment of rules of criminal procedure, court of appeals held that trial court did not err in denying defendant's motion for in-camera inspection of police files for purpose of identifying or of investigating officers, where defendant was accorded, by direct inquiry, the right he sought through an examination of police files. State v. Sluder, 1971-NMCA-095, 82 N.M. 755, 487 P.2d 183 (decided under former law). Where undisclosed statement and report material. - An undisclosed witness statement which tended to corroborate defense witness as to how entry was obtained and tended to contradict the testimony of police witnesses, both in the case-in-chief and in rebuttal, as to the method of entry, was clearly material to that issue, as was an undisclosed supplemental police report which also tended to corroborate defense witnesses and to contradict the testimony of police witnesses that entry was by use of a pry bar. Chacon v. State, 1975-NMCA-094, 88 N.M. 198, 539 P.2d 218. It was not error to refuse to require state to produce report not within its possession, custody or control. State v. Bustamante, 1978-NMCA-062, 91 N.M. 772, 581 P.2d 460. Standard for determining right to new trial for violation. - Where a violation of Subdivision (a)(5) (see now Paragraph A(3)) is not discovered until after trial, the standards to be applied in determining whether defendant is entitled to a new trial because of nondisclosure are that the nondisclosed items must be material to the guilt or innocence of the accused, or to the penalty to be imposed, and furthermore, that nondisclosure of items material to the preparation of the defense is not reversible error in the absence of prejudice. Chacon v. State, 1975-NMCA-094, 88 N.M. 198, 539 P.2d 218. In order to obtain a new trial for a violation of Subdivision (a)(5) (see now Paragraph A(3)), the nondisclosed items must be material to the guilt or innocence of the accused or to the penalty to be imposed, but where the nondisclosure does not prejudice the defendant, there are no grounds for reversal. State v. Smith, 1979-NMSC-020, 92 N.M. 533, 591 P.2d 664. III. LIST OF STATE WITNESSES. Purpose of discovery allowed in rule is to assist defense counsel in the preparation of a defense by providing the opportunity to interview the government's witnesses. State v. Orona, 1979-NMSC-011, 92 N.M. 450, 589 P.2d 1041. Defendant does not have absolute and unlimited right of access to state's prospective witnesses. State v. Orona, 1979-NMSC-011, 92 N.M. 450, 589 P.2d 1041. Court may not absolutely restrict access without good cause shown. - In the absence of some demonstrable good cause, a trial court may not impose an absolute restriction on defense counsel's access to the state's prospective witnesses. State v. Orona, 1979-NMSC-011, 92 N.M. 450, 589 P.2d 1041. Failure to disclose no aid to defendant unless prejudice shown. - The failure of the state to disclose a witness will not aid the defendant unless he can show that he was prejudiced thereby. State v. Manus, 1979-NMSC-035, 93 N.M. 95, 597 P.2d 280. No prejudice where blood test witness not listed. - Despite the fact that the state verbally informed defense counsel of blood type test results, but did not list as a witness the agent who later testified about it, and did not provide written copies of the test results nor make specimens available for independent testing, nevertheless, the failure to comply with the rules was not prejudicial to the conduct of the defense. State v. Quintana, 1974-NMCA-095, 86 N.M. 666, 526 P.2d 808, cert. denied, 86 N.M. 656, 526 P.2d 798. Testimony of omitted witnesses to be important and critical. - The district attorney's failure to notify defendant's counsel in advance about two witnesses, one an employee of a funeral home whose testimony related solely to the chain of custody of the decedent's tee shirt, and a physician whose testimony as to the medical cause of death was merely technical and cumulative, although not in compliance with the rules and the court's order, was not prejudicial to the defense; before defendant can be prejudiced, the testimony of an omitted witness must be important and critical, not technical or cumulative. State v. Quintana, 1974-NMCA-095, 86 N.M. 666, 526 P.2d 808, cert. denied, 86 N.M. 656, 526 P.2d 798. Before a defendant can be prejudiced by the state's failure to disclose a witness until five days before trial, the testimony of the omitted witness must be important and critical, not technical and cumulative. State v. Hernandez, 1986-NMCA-040, 104 N.M. 268, 720 P.2d 303. Where rule substantially complied with. - Where well before trial defense knew of the existence of the witnesses who were endorsed on the back of the information or who testified in pretrial proceedings, and counsel could have taken and in some instances did take statements or depositions of these witnesses to learn the substance of their testimony, this rule was substantially complied with. State v. Quintana, 1974-NMCA-095, 86 N.M. 666, 526 P.2d 808, cert. denied, 86 N.M. 656, 526 P.2d 798. No violation where state did not fail to disclose witness's identity or act in bad faith. - Where defendant, who was charged with aggravated battery with a deadly weapon, sought to suppress the testimony of the only witness to the altercation between defendant and the victim, the district court did not abuse its discretion by refusing to exclude the witness's testimony, because the state filed an updated witness list several years before trial which included the name of the witness and his address at the time, and although the witness moved out of state, the state searched to locate the witness for an interview prior to trial, and defendant was ultimately able to interview the witness prior to his testimony; the state did not fail to disclose the witness's identity or act in bad faith to conceal the witness's whereabouts. State v. Lopez, 2018-NMCA-002, cert. denied. Sanctions for failure to list witness. - Striking a key prosecution witness because of the failure of the state to include his name on pretrial witness lists was not an abuse of discretion. State v. Martinez, 1998-NMCA-022, 124 N.M. 721, 954 P.2d 1198. Showing of prejudice sufficient to reverse order denying access. - To reverse an order denying a defendant access to state witnesses, no more prejudice need be shown than that the order may have made a potential avenue of defense unavailable to the defendant. State v. Orona, 1979-NMSC-011, 92 N.M. 450, 589 P.2d 1041. Rebuttal witnesses usually not in purview of rule. - As for whether rebuttal witnesses come within the purview of the witness list requirement of production of names and addresses of all witnesses to be called by the district attorney, the general rule seems to be that they do not, so long as the rebuttal is true rebuttal and not an attempt to present the state's case-in-chief in the rebuttal. State v. Manus, 1979-NMSC-035, 93 N.M. 95, 597 P.2d 280. Trial court may place limitations on use of previously recorded statement by a witness where the statement, unsworn, is full of defamatory comments concerning a number of persons and there is nothing indicating disclosure of the defamatory comments to anyone other than defendant and his counsel has any usefulness. State v. Davis, 1979-NMCA-015, 92 N.M. 563, 591 P.2d 1160. Disclosure of prior arrests within judge's discretion. - Where the defendant is not entitled, under the rules, to information concerning prior arrests of all witnesses which the district attorney intends to call at trial and where the defendant does not provide any other basis which would entitle him to disclosure of such arrest records, disclosure must necessarily fall within the exercise of the judge's discretion. State v. Smith, 1979-NMSC-020, 92 N.M. 533, 591 P.2d 664. No misconduct in not listing address for transient. - Where the witness is a transient who moves around constantly, there is no misconduct by the prosecution in not listing an address for him. State v. Hutchinson, 1983-NMSC-029, 99 N.M. 616, 661 P.2d 1315.