N.M. R. Evid. 11-403
The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.
N.M. R. Evid. 11-403
Committee commentary. - The language of Rule 11-403 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 June 16, 2012, rewrote the title of the rule and the rule to make stylistic changes. Compiler's notes. - This rule is similar to Rule 403 of the Federal Rules of Evidence.
For rule regarding admissibility of evidence of other crimes, wrongs or acts, see Rule 11-404 NMRA. I. GENERAL CONSIDERATION. Evidence does not have to conclusively prove proposition to be relevant. It is enough that the evidence have some tendency to make a fact in issue more or less probable than it would be without the evidence. State v. Montoya, 2005-NMCA-078, 137 N.M. 713, 114 P.3d 393, cert. denied, 2005-NMCERT-006. Generally. - This rule, which explicitly recognizes the large discretionary role of the judge in controlling the introduction of evidence, codifies previous case law. It applies to all forms of evidence: direct and circumstantial, testimonial, documentary, real proof and demonstrations; and its balancing approach should also be utilized in deciding on the admissibility of evidence relevant to impeachment. State v. Day, 1978-NMCA-018, 91 N.M. 570, 577 P.2d 878. This rule gives the trial court a great deal of discretion in admitting or excluding evidence, and the supreme court will reverse the trial court only when it is clear that the court has abused its discretion. Behrmann v. Phototron Corp., 1990-NMSC-073, 110 N.M. 323, 795 P.2d 1015. This rule applies to all evidence. Simon Neustadt Family Ctr. v. Bludworth, 1982-NMCA-032, 97 N.M. 500, 641 P.2d 531, overruled on other grounds, Melnick v. State Farm Mut. Auto. Ins. Co., 1988 -NMSC-012, 106 N.M. 726, 749 P.2d 1105. Rule applies to admission of all evidence, including evidence admissible under Rule 11-609 NMRA and thus impeachment evidence admissible under Rule 11-609 NMRA was subject to exclusion by the trial court under this rule. State v. Day, 1978-NMCA-018, 91 N.M. 570, 577 P.2d 878. Criminal misconduct of third persons. - Even though evidence of wrongdoing on the part of a third party is normally inadmissible as irrelevant to a given case, evidence that contraband was possessed by other occupants of the mobile home where defendant was arrested was admissible as reasonably having probative value. State v. Phillips, 2000-NMCA-028, 128 N.M. 777, 999 P.2d 421, cert. denied, 128 N.M. 689, 997 P.2d 821. Evidence in probable cause hearing. - Evidence inadmissible at trial as unfairly prejudicial or as evidence of other crimes may be considered in a hearing to determine probable cause to proceed with death-penalty proceedings. State v. Smith, 1997-NMSC-017, 123 N.M. 52, 933 P.2d 851. Trial court may not admit irrelevant or prejudicial evidence. - It is within the discretion of the trial court to expand the scope of cross-examination as long as inquiry into additional matters is conducted as if on direct examination, but the trial court may not admit evidence which is otherwise inadmissible because it is irrelevant, or if its probative value is substantially outweighed by the danger of unfair prejudice. State v. Martin, 1984-NMSC-077, 101 N.M. 595, 686 P.2d 937. Court's decision admitting evidence upheld where admissible under any theory. - Where evidence is admissible under any theory, the trial court's decision to admit it will be upheld. The same ruling will apply even more forcefully to evidence presented to the grand jury. State v. Ballinger, 1983-NMCA-034, 99 N.M. 707, 663 P.2d 366, rev'd on other grounds, 1984-NMSC-003, 100 N.M. 583, 673 P.2d 1316. Discretion of court governed by logic and reason. - An abuse of discretion in the application of the balancing test under this rule may be found when the trial court's decision is contrary to logic and reason. Davila v. Bodelson, 1985-NMCA-072, 103 N.M. 243, 704 P.2d 1119. Prejudicial effect of evidence must outweigh probative value. - Defendant's claim that certain evidence was prejudicial was insufficient to alert trial court to a question concerning this rule. The fact that competent evidence may tend to prejudice defendant is not grounds for exclusion of that evidence; the question is whether the probative value of the evidence is outweighed by its prejudicial effect. State v. Hogervorst, 1977-NMCA-057, 90 N.M. 580, 566 P.2d 828, cert. denied, 90 N.M. 636, 567 P.2d 485; State v. Martinez, 1980-NMCA-022, 94 N.M. 50, 607 P.2d 137. Assuming that defendant's motion for a mistrial constituted a timely objection to the introduction of testimony of a detective, who was asked by the state if he had interviewed defendant and who in the course of a lengthy description of reading defendant his rights mentioned defendant's refusal to talk to him, the trial court correctly denied motion for mistrial since there was no showing that the probative value of the testimony was substantially outweighed by the danger of unfair prejudice, confusion of the issues or misleading the jury, as required by this rule. State v. Baca, 1976-NMSC-015, 89 N.M. 204, 549 P.2d 282. Prejudicial effect of prior convictions outweighed probative value. - Trial court did not err in holding that prejudicial effect of victim's 32- and 33-year-old convictions offered to prove the victim was the aggressor outweighed their probative effect where there was no evidence that defendant knew of victim's prior convictions. Ewing v. Winans, 749 F.2d 607 (10th Cir. 1984). Even if a defendant has made a showing of relevancy of the past sexual conduct of the victim, the balancing test of this rule must be applied by the trial court. State v. Lucero, 1994-NMCA-129, 118 N.M. 696, 884 P.2d 1175. Trial court has great deal of discretion in applying this rule and Rule 11-411 NMRA and its ruling can only be held to be reversible error in the event of an abuse of that discretion. Mac Tyres, Inc. v. Vigil, 1979-NMSC-010, 92 N.M. 446, 589 P.2d 1037. The trial court is vested with great discretion in applying this rule, and it will not be reversed absent an abuse of that discretion. State v. Chamberlain, 1991-NMSC-094, 112 N.M. 723, 819 P.2d 673. Admission or exclusion of evidence is matter within discretion of trial court, and court's determination will not be disturbed on appeal in the absence of a clear abuse of that discretion. State v. Valdez, 1972-NMCA-014, 83 N.M. 632, 495 P.2d 1079, aff'd, 1972-NMSC-029, 83 N.M. 720, 497 P.2d 231, cert. denied, 409 U.S. 1077, 93 S. Ct. 694, 34 L. Ed. 2d 666 (1972); In re Will of Ferrill, 1981-NMCA-074, 97 N.M. 383, 640 P.2d 489. Whether trial court abused discretion issue on appeal. - When the trial court has applied the balancing test of this rule, the appellate issue is whether the trial court's ruling was an abuse of discretion. State v. Carr, 1981-NMCA-029, 95 N.M. 755, 626 P.2d 292, cert. denied, 95 N.M. 669, 625 P.2d 1186, 454 U.S. 853, 102 S. Ct. 298, 70 L. Ed. 2d 145 (1981), overruled on other grounds, State v. Olguin, 1994-NMCA-050, 118 N.M. 91, 879 P.2d 92. Where it is contended that the probative nature of a prior conviction was outweighed by its prejudicial impact upon the jury, the appellate question is whether the trial court abused its discretion in permitting a question concerning the prior conviction. Jaramillo v. Fisher Controls Co., 1985-NMCA-008, 102 N.M. 614, 698 P.2d 887. Probative value of testimony considered by appellate court. - When the trial court has applied the balancing approach required by this rule, the appellate issue is whether the trial court has abused its discretion, and in determining whether discretion was abused the appellate court must consider the probative value of the testimony. State v. Schifani, 1978-NMCA-080, 92 N.M. 127, 584 P.2d 174, cert. denied, 92 N.M. 180, 585 P.2d 324. Items are admissible which show either an admission by conduct or consciousness of guilt. State v. Vallejos, 1982-NMCA-146, 98 N.M. 798, 653 P.2d 174. In order to admit evidence under Rule 11-404 NMRA, the court must find that the evidence is relevant to a disputed issue other than the defendant's character, and it must determine that the prejudicial effect of the evidence does not outweigh its probative value, as set out by this rule. State v. Beachum, 1981-NMCA-089, 96 N.M. 566, 632 P.2d 1204. Prerequisites for predicating error on violation of this rule. - Although trial court is allowed to balance the probative value of the evidence against its possibly prejudicial effect, this is a rule of exclusion, and the procedure set out in Rule 11-103 NMRA must be followed before error can be predicated upon violation of this rule. State v. Cardona, 1974-NMCA-052, 86 N.M. 373, 524 P.2d 989, cert. denied, 86 N.M. 372, 524 P.2d 988. Party may lose rights under rule. - Contention that trial court abused its discretion in allowing in evidence a mug shot of defendant because it was suggestive of guilt and was prejudicial was invalid where the record shows that prosecution did not offer the mug shot in evidence on direct examination of a police officer but only after defendant's attorney on cross-examination questioned the police officer on the photographs and opened up the subject and that mug shot was identified without objection before it was offered in evidence. State v. Samora, 1971-NMCA-149, 83 N.M. 222, 490 P.2d 480. Failure to object at trial. - The contention on appeal, that certain questions violated this rule, will not be considered where it was not raised in the trial court. State v. Keener, 1981-NMCA-139, 97 N.M. 295, 639 P.2d 582. Mistrial not required. - Where the trial court sustained an objection to a question asked by the prosecutor of defendant's witness, for defendant to demonstrate that the court abused its discretion by denying a mistrial for prosecutorial misconduct, he must have established that the prosecutor did not have a valid basis for the question. State v. Salas, 1999-NMCA-099, 127 N.M. 686, 986 P.2d 482, cert. denied, 128 N.M. 149, 990 P.2d 823. No mistrial where declined instruction could have cured prejudice. - Trial court did not abuse its discretion in denying a mistrial motion based on the ground that defendant was prejudiced by an unsolicited comment by one of the state's key witnesses that defendant was acquainted with "inmates," where defendant declined a cautionary instruction which could have cured any prejudicial effect the objectionable testimony might have had on the jury. State v. Nichols, 1986-NMSC-023, 104 N.M. 74, 717 P.2d 50. II. CUMULATIVE EVIDENCE. Needless presentation of cumulative evidence. - Evidence may be excluded if its probative value is substantially outweighed by needless presentation of cumulative evidence. Payne v. Hall, 2004-NMCA-113, 136 N.M. 380, 98 P.3d 1030, cert. granted, 2004-NMCERT-010. Basis for reversal. - Cumulative evidence in the absence of an abuse of discretion will not be the basis for a reversal. Payne v. Hall, 2004-NMCA-113, 136 N.M. 380, 98 P.3d 1030, cert. granted, 2004-NMCERT-010. Cumulative evidence proper if corroborating other evidence. - Photographs which may be characterized as cumulative evidence are properly admitted if they serve to corroborate other evidence. State v. Upton, 1955-NMSC-087, 60 N.M. 205, 290 P.2d 440. Explanatory evidence admissible even though cumulative. - In aggravated battery case, the fact that there had been verbal descriptions of the presence of blood and the condition of room where alleged crime occurred did not make photographs of the room inadmissible, even though to some extent they were cumulative, since photographic evidence constituted visual explanations of the testimony of witnesses and was corroborative of that testimony. State v. Webb, 1970-NMCA-055, 81 N.M. 508, 469 P.2d 153. Refusal to hear psychologist's testimony justified as merely cumulative. - In a criminal sexual penetration prosecution, the trial court's refusal to hear testimony of a psychologist who had treated the victim for various emotional problems and whose reports on the victim had already been introduced into evidence was justified because such material would be merely cumulative. State v. Romero, 1980-NMCA-011, 94 N.M. 22, 606 P.2d 1116, overruled on other grounds, State v. Johnson, 1997-NMSC-036, 123 N.M. 640, 944 P.2d 869. Testimony held cumulative on motivation issue. - Where testimony as to a witness' purported heroin use would not add to the evidence already before the jury that he was motivated by money, the trial court in its discretion may properly exclude the tendered cumulative testimony. State v. Lovato, 1978-NMCA-030, 91 N.M. 712, 580 P.2d 138, cert. denied, 91 N.M. 751, 580 P.2d 972. III. PHOTOGRAPHIC EVIDENCE. Partial erasure of video tape. - Where the victim erased part of a video tape showing the defendant sodomizing the victim with a carrot and the victim testified that she could not remember the incident because she was drugged and that she would not have consented to such an act, the district court did not abuse its discretion in admitting the tape into evidence. State v. Dombos, 2008-NMCA-035, 143 N.M. 668, 180 P.3d 675, cert. denied, 2009-NMCERT-008, 147 N.M. 395, 223 P.3d 940, and cert. denied, 2009-NMCERT-010, 147 N.M. 452, 224 P.3d 1257. Admissibility clear where photo not distorted or calculated to prejudice jury. - Trial court did not abuse its discretion in admitting into evidence a portrait of the deceased for the purpose of identification only since there was nothing on the record to indicate that the photograph was distorted or otherwise calculated to prejudice the jury. State v. Baros, 1974-NMCA-127, 87 N.M. 49, 529 P.2d 275, cert. denied, 87 N.M. 47, 529 P.2d 273. This rule does not make obsolete the "reasonably relevant" test, whereby photographs which are calculated to arouse prejudices and passions of the jury and which are not reasonably relevant to issues of the case ought to be excluded. State v. Valenzuela, 1976-NMSC-079, 90 N.M. 25, 559 P.2d 402. Photographs which are calculated to arouse prejudices and passions of the jury and which are not reasonably relevant to the issues of the case ought to be excluded. State v. Upton, 1955-NMSC-087, 60 N.M. 205, 290 P.2d 440. When defendant's appearance in relation to the undercover agent was a material issue, and defendant did not object to testimony regarding his appearance, introduction of photographs merely corroborated testimony already received, and the fact that the photographs might have had some inflammatory effect did not render them inadmissible. State v. Mordecai, 1971-NMCA-139, 83 N.M. 208, 490 P.2d 466. Question of inflammatory effect for court's discretion. - Question of admissibility of photographic evidence, objected to as being inflammatory of the passions and prejudices of the jury, is largely one of discretion to be exercised by the trial court; ordinarily discretion thereon will not be disturbed on appeal. State v. Webb, 1970-NMCA-055, 81 N.M. 508, 469 P.2d 153. Photographs of victim as found by police were admissible. - Photographs of body of the deceased showing the victim as she was found by the police in her house and showing the wounds inflicted on the victim were not so inflammatory, prejudicial and irrelevant that they should have been excluded; rather, they were used to illustrate, clarify and corroborate the testimony of witnesses concerning the scene of the crime, wounds of the victim and identity of the deceased. Defendant, who had the burden to show abuse of trial court's discretion in admitting the photographs, failed to meet that burden. State v. Noble, 1977-NMSC-031, 90 N.M. 360, 563 P.2d 1153. Close-up photograph of murder victim properly admitted. - Admission of a close-up photograph of the left side of a murder victim's neck wounds was properly allowed by the trial court to show defendant's intent since the danger of unfair prejudice did not outweigh the probative value of the photograph. State v. Boeglin, 1987-NMSC-002, 105 N.M. 247, 731 P.2d 943. Photographs of burned victim and crime scene were admissible. - Where defendant's co-conspirators placed the victim in the trunk of the victim's car, doused the car with charcoal lighter fluid, and burned the car; the trial court admitted into evidence photographs of the victim's burned body, the burned car, firefighters extinguishing the fire, and the location where the vehicle was burned; the photographs were relevant to the existence of the essential elements of the crimes of murder and arson and showed the scene as it was investigated with no undue emphasis on the burned body or anything that would unfairly prejudice the defendant; and the trial court weighed the probative and prejudicial impact of the photographs outside the presence of the jury, the trial court did not abuse its discretion in admitting the photographs into evidence. State v. Bahney, 2012-NMCA-039, 274 P.3d 134, cert. denied, 2012-NMCERT-003. Photographic evidence was admissible to show extent of injuries to victim and to refute defense. - In defendant's trial on charges related to the death, abuse, and sexual assault of his twenty-eight-day-old daughter, the trial court did not abuse its discretion in admitting photographs of the baby's injuries, because although the photographs were graphic and difficult to view, they were relevant to establish that the crimes actually occurred, conveyed the nature and extent of the baby's injuries in a manner that words could not, and were necessary to refute defendant's only defense, that he inflicted the baby's injuries in an attempt to revive her. State v. Galindo, 2018-NMSC-021. Videotape of murder scene and victim admissible. - Videotape and pictures of the condition and position of murder victim's body as well as the disarray in the murder scene allowed the jury to draw an inference of a struggle prior to the victim's death and thus were relevant, and admissible, to show that defendant had the requisite intent to kill. State v. Hernandez, 1993-NMSC-007, 115 N.M. 6, 846 P.2d 312. Photo of decedent during autopsy admissible. - The admission into evidence in a murder trial of photographs of the decedent taken during her autopsy is proper if they are reasonably relevant to material issues in the trial, showing the identity of the victim, and the number and location of the wounds inflicted upon her body. State v. Ho'o, 1982-NMCA-158, 99 N.M. 140, 654 P.2d 1040. "Day in the Life" video. - Where the personal representative of the decedent sued defendants for the wrongful death of the decedent based on the negligent medical care provided by defendants; plaintiff presented to the jury a "Day in the Life" video of the decedent that lasted five minutes, opened and closed with a view of the cemetery where the decedent was buried, and included descriptions of the decedent's interests and character, and in bucolic settings with intermittent guitar music, six unidentified people speaking about the decedent; defendant cross-examined two of the three main people who spoke on the video; and the district court allowed defendant the opportunity to cross-examine the third person and to again cross-examine the other two people, the district court did not abuse its discretion in admitting the video into evidence. Estate of Lajeuenesse v. University of N.M. Bd. of Regents, 2013-NMCA-004, 292 P.3d 485, cert. granted, 2012-NMCERT-012. IV. EVIDENCE OF OTHER OFFENSES OR ACTS. Limited probative value of cross-admitting evidence of offenses against each of two victims to show an "opportunity" to commit the offenses is overwhelmed by its substantial prejudicial effect. State v. Gallegos, 2005-NMCA -142, 138 N.M. 673, 125 P.3d 652, cert. granted, 2005-NMCERT-012. This rule reinforces the very purpose of Paragraph B of Rule 11-404 NMRA. State v. Otto, 2005-NMCA-047, 137 N.M. 371, 111 P.3d 229, cert. granted, 2005-NMCERT-004. Evidence of other "offenses" is properly admitted where they tend to show the defendant's knowledge of a crime and an absence of mistake or accident. State v. Turner, 1981-NMCA-144, 97 N.M. 575, 642 P.2d 178. Evidence not excluded solely because it proves defendant guilty of other crime. - Testimony of which defendant complains was evidence tending to throw some light upon guilt of the defendant and having a logical connection with crimes with which he was charged. Evidence which is competent, relevant and material cannot be excluded solely because it also tends to prove the person on trial guilty of some other crime. State v. Valdez, 1972-NMCA-014, 83 N.M. 632, 495 P.2d 1079, aff'd, 1972-NMSC-029, 83 N.M. 720, 497 P.2d 231, cert. denied, 409 U.S. 1077, 93 S. Ct. 694, 34 L. Ed. 2d 666 (1972). Probative value of evidence of other crimes, etc., to be considered. - In determining whether evidence admissible under Rule 11-404 NMRA should be excluded under this rule, the probative value of the evidence is to be considered. In considering the probative value, a factor is the availability of other means of proof. State v. Fuson, 1978-NMCA-002, 91 N.M. 366, 574 P.2d 290. Evidence bearing on defendant's intent. - In a prosecution for murder in which the defendant's specific intent was at issue and there was little, if any, other evidence as to his considerations for and against killing the victim, the probative value of evidence of his prior bad acts outweighed its prejudicial effect. State v. Niewiadowski, 1995-NMCA-083, 120 N.M. 361, 901 P.2d 779. Evidence of other acts established intent and rebutted claim of accident. - In defendant's trial for the second-degree murder of his girlfriend, where defendant claimed that the shooting was an accident, and where the State presented evidence of defendant's arrests in Texas and New Mexico, both of which showed that defendant had physically abused the victim, including evidence of a previous domestic dispute between defendant and his girlfriend where the arresting officer heard defendant shout "I'm not going to jail over this shit," and saw defendant standing over the girlfriend in an aggressive manner, and where defendant claimed that evidence of his arrest in Artesia was improper character evidence which should have been excluded, particularly because it did not result in criminal charges, and that the evidence was more prejudicial than it was probative, the evidence of defendant's prior arrests for violence against the victim was admissible to rebut his claim of accident and to establish that he intended to shoot the victim to avoid going to jail, to prevent her from testifying against him, due to anger at her plan to break up with him, or simply during the course of one of their many arguments, and the probative value of the evidence was not outweighed by any unfair prejudice because there was other admissible evidence where defendant admitted that he and the victim argued frequently and that he was physically abusive to the victim. State v. Hnulik, 2018-NMCA-026, cert. denied. Other-act evidence was more probative than prejudicial. - Where defendant was charged with criminal sexual contact of a minor and where defendant disputed the intent element of the charge, claiming that he lacked an unlawful intent because the contact in the charged incident was merely parental conduct that the child was misinterpreting, the trial court did not abuse its discretion in admitting evidence of an uncharged act where the child victim, defendant's nine-year-old daughter, reported that defendant sat the child on his lap, reached down her pants, and applied ointment to her genitals while digitally penetrating her, because the uncharged other-act evidence was highly probative of defendant's intent during the charged incident and the inherently prejudicial nature of the uncharged incident was not enough to outweigh its probative value. State v. Bailey, 2017-NMSC-001, aff'g 2015-NMCA-102. Evidence of sexual misconduct relevant to prove unlawful intent. - Where defendant was convicted of criminal sexual contact of a minor, the trial court did not abuse its discretion in admitting evidence of an uncharged act where child, defendant's nine-year-old daughter, reported that while the family was living in Sandoval County, defendant roused child from sleep at night to watch her favorite movie, laid the child on top of him, placed ointment on his hand, placed his hand in child's pajamas, and touched and penetrated child's vagina; the evidence of the uncharged act was relevant to prove the sexual intent of defendant during the charged incidents where, in one instance, child claimed that defendant placed ointment on his finger and touched and rubbed child's vagina after she got out of the shower, and where defendant did not dispute that he touched child in a manner consistent with child's allegations, but instead argued that his actions toward child were normal parental care and that he touched child without sexual intent. Evidence of unlawful intent was a required element of the charges against defendant, and evidence that defendant touched child in a sexual manner that was not amenable to an interpretation as normal parental care could reasonably be deemed of probative value and was not substantially outweighed by any unfair prejudice. State v. Bailey, 2015-NMCA-102, cert. granted, 2015-NMCERT-009. Admissibility of evidence of prior conviction. - Absent a plea of guilty, proof of conviction was inadmissible in trial of subsequent tort action arising out of the same act. An exception was permitted when the convicted criminal sought in the civil action to take advantage of rights arising from the crime; in such case, proof of previous conviction was admissible as evidence of the facts upon which it was based. Hudson v. Otero, 1969-NMSC-133, 80 N.M. 677, 459 P.2d 839. Rule 11-609A(1) NMRA evidence is always subject to possible exclusion under this rule. Lenz v. Chalamidas, 1989-NMSC-067, 109 N.M. 113, 782 P.2d 85. Evidence of prior conviction is admissible within confines of trial court's discretion. State v. Baca, 1974-NMCA-022, 86 N.M. 144, 520 P.2d 872. Where the transcript revealed the trial court properly engaged in a balancing test before ruling the prior felonies would be admissible if defendant testified, the trial court did not abuse its discretion in denying defendant's motion to exclude his prior felonies. State v. Lara, 1990-NMCA-075, 110 N.M. 507, 797 P.2d 296. Unsubstantiated reference to defendant as known drug dealer inappropriate. - Repeated references to defendant as a known drug dealer when the state lacked sufficient evidence to convict defendant of possession or distribution of illegal drugs, and instead relied on unsubstantiated hearsay to convince the jury defendant was a "known drug dealer" so, ipso facto, the shotgun must belong to him, is prohibited and should be excluded. State v. Rael, 1994-NMCA-043, 117 N.M. 539, 873 P.2d 285. Evidence of past drug dealings in drug case. - Testimony regarding the defendant's prior cocaine sales to the witness was inadmissible as an attempt by the state to insinuate that the defendant sold cocaine to the witness on the day in question because he had done so in the past; the testimony was not highly probative to prove context, and the probative value, if any, was substantially outweighed by the danger of unfair prejudice. State v. Wrighter, 1996-NMCA-077, 122 N.M. 200, 922 P.2d 582. Admission of syringe in murder case. - In robbery and murder prosecution, error in admitting syringe into evidence, if any, was harmless; there was no evidence that jury inferred drug usage or was influenced by the admission of the syringe in reaching its robbery and murder verdicts. State v. Duffy, 1998-NMSC-014, 126 N.M. 132, 967 P.2d 807. Evidence of similar sex offenses generally inadmissible. - General rule of inadmissibility of evidence of similar sex offenses committed with or upon persons other than prosecutrix was inapplicable to other or similar sex offenses committed by defendant with prosecuting witness; such evidence, if not too remote, was admissible as showing lewd and lascivious disposition of defendant toward prosecuting witness and as corroborating evidence. State v. Minns, 1969-NMCA-035, 80 N.M. 269, 454 P.2d 355, cert. denied, 80 N.M. 234, 453 P.2d 597. Because of the emotional persuasiveness of evidence involving sex offenses with or upon children, evidence of similar but distinct offenses with or upon other children ordinarily is to be excluded because the danger of prejudice so often outweighs the permissible probative value of such evidence. This does not mean such evidence could not properly be received if it was relevant to, and its probative force was sufficiently great upon, some material element of crime charged which was in issue and upon which there was doubt. State v. Mason, 1968-NMCA-072, 79 N.M. 663, 448 P.2d 175, cert. denied, 79 N.M. 688, 448 P.2d 489. Absent showing sufficient to raise issue as to relevancy, questions concerning past sexual conduct are to be excluded, but once such a showing is made the balancing test of this rule and Section 30-9-16 NMSA 1978 is to be applied in determining admissibility. State v. Herrera, 1978-NMCA-048, 92 N.M. 7, 582 P.2d 384, cert. denied, 91 N.M. 751, 580 P.2d 972. Evidence of other acts held not admissible. - In child sexual assault case, evidence that the defendant's request for oral sex by his girlfriend was more prejudicial than probative and the trial court erred in admitting it; and, although the conduct in question was not criminal, it seemed likely that some significant percentage of jurors would find such conduct sufficiently offensive so as to create probable prejudice to require a new trial. State v. Lucero, 1992-NMCA-107, 114 N.M. 489, 840 P.2d 1255. Evidence of past sexual misconduct against victim admissible. - In a prosecution for criminal sexual contact of a minor, the trial court did not abuse its discretion in admitting evidence of the defendant's past sexual misconduct against the victim, notwithstanding the fact that it occurred ten years prior to the acts for which the defendant was convicted. Evidence of defendant's past sexual misconduct, similar in nature to the crime of which defendant was indicted, was illustrative of a lewd and lascivious disposition of defendant toward the victim. State v. Scott, 1991-NMCA-081, 113 N.M. 525, 828 P.2d 958, cert. quashed, 113 N.M. 524, 828 P.2d 957 (1992). Evidence of prior legal consensual sexual conduct. - In a prosecution for murder and criminal sexual penetration, testimony by defendant's girlfriend regarding defendant's enjoyment of anal sex was inadmissible since evidence was not relevant to the defendant's identity because it was not so distinctive as to constitute a unique or distinct pattern easily attributable to one person; nor, was evidence relevant to defendant's motive because merely enjoying anal sex is not sufficient to suggest that defendant had cause to force himself on victim. State v. Williams, 1994-NMSC-050, 117 N.M. 551, 874 P.2d 12. Evidence of victim's prior gun play held irrelevant in murder prosecution. - In prosecution for first-degree murder, it was within trial court's discretion to exclude evidence that victim had pulled a gun on someone in another bar since this had no bearing on defendant's claim that he was not in the bar at the time of the shooting, nor did it relate to state witness' identification of defendant as victim's assailant. State v. Blea, 1984-NMSC-055, 101 N.M. 323, 681 P.2d 1100. Evidence of a feud between two families. - Evidence of a feud between two families was relevant in a prosecution for second degree murder and involuntary manslaughter to show that the defendant's act was intentional and not merely accidental or the result of "sufficient provocation". State v. Mireles, 1995-NMCA-026, 119 N.M. 595, 893 P.2d 491. Specific instances of prior violence. - Since the specific instances from victim's background would have been cumulative and as such would not have affected the verdict, the trial court did not abuse its discretion in excluding the proffered specific instances of victim's prior violent conduct. State v. Baca, 1992-NMSC-055, 114 N.M. 668, 845 P.2d 762. Prior acts of spousal abuse. - In a prosecution of the defendant for the murder of his wife, hearsay testimony concerning prior incidents when the defendant struck the victim was admissible as evidence of motive, intent, plan or knowledge to establish the requisite mental state for first-degree murder. State v. Woodward, 1995-NMSC-074, 121 N.M. 1, 908 P.2d 231. Unrelated incidents of co-defendant excluded. - The court did not err in excluding examination of a police detective as to other unrelated incidents in which the co-defendant was involved. State v. Duncan, 1994-NMCA-030, 117 N.M. 407, 872 P.2d 380. Defendant's photo extracted from police album not prejudicial. - Where a photo of the defendant is extracted from a police photo album, such evidence is relevant to corroborate a victim's in-court identification of the defendant and the defendant is not so prejudiced by the date of his prior arrest shown on the exhibits and his documented association with other prior arrestees that this evidence should be excluded. State v. Gutierrez, 1979-NMCA-016, 93 N.M. 232, 599 P.2d 385. Admission of acquittal evidence error and highly prejudicial. - In perjury prosecution, where defendant had testified for the state in an earlier case, admission of evidence that defendant in that earlier case had been acquitted was error, since it had no bearing on the guilt or innocence of the perjury defendant, and was highly prejudicial to him. State v. Naranjo, 1980-NMSC-061, 94 N.M. 407, 611 P.2d 1101. Admission by defendant regarding felony of which not convicted. - A prosecutor seeking, under Rule 11-608 NMRA, to have a defendant make an admission concerning a felony when there has been no conviction hazards a reversal absent a showing of probative value because of the prejudicial nature of the question. State v. Miller, 1979-NMCA-014, 92 N.M. 520, 590 P.2d 1175. Error in perjury prosecution to admit evidence of acquittal entered in prior case, from which the allegation of perjury arose, because the perjury defendant could have told the truth, but not been believed by the jury because of his faulty memory, reputation, and demeanor. State v. Naranjo, 1979-NMCA-150, 94 N.M. 413, 611 P.2d 1107, rev'd on other grounds, 1980-NMSC-061, 94 N.M. 407, 611 P.2d 1101. Parole records which contained defendant's signature were inadmissible where state had other handwriting exemplars and could have obtained signature by court order. State v. Martinez, 1980-NMCA-022, 94 N.M. 50, 607 P.2d 137. V. SPECIFIC APPLICATIONS. Two year delay in disclosing intent to use release as evidence and a defense. - Where plaintiffs and defendants executed a final agreement to dissolve their business relationship in several businesses and plaintiffs released all claims plaintiff had against defendants; in subsequent litigation, although defendants had nearly two years after plaintiff produced the release, defendants waited until the weekend prior to the start of trial to notify plaintiffs that defendants intended to use the release as evidence and a defense; the district court admitted the release into evidence as well as extrinsic evidence concerning the meaning of the release; plaintiffs had an opportunity to present evidence on the release and cross-examined defendants about their intentions concerning it; plaintiffs did not request a continuance following the district court's decision to allow defendants to present evidence on the release, and plaintiffs did not demonstrate how the district court's decision was prejudicial to them, the district court did not abuse its discretion by admitting the release into evidence. Benz v. Town Ctr. Land, L.L.C., 2013 -NMCA-111. Testimony about a witness involving a person threatening people with a gun was prejudicial. - Where defendant was charged with shooting the victim with a .45 caliber revolver; the shooting occurred in the presence of a witness who had driven the victim to the location of the shooting; two and a half weeks prior to the shooting, the witness had been with a third person when the third person threatened people with a .22 caliber revolver; the district court precluded defendant from soliciting any testimony from the witness about the incident involving the .22 caliber revolver on the grounds that the incident was more prejudicial than probative; and defendant argued that the court's ruling prohibited defendant from offering evidence that the witness was the slayer of the victim, the district court did not abuse its discretion by excluding testimony about the incident. State v. Riley, 2010-NMSC-005, 147 N.M. 557, 226 P.3d 656. Defendant's accusations against the victim. - Where defendant was charged with the first degree murder of the victim; defendant was embittered by the victim's rejection of defendant and the breakup of the relationship between defendant and the victim; defendant made accusations by telephone calls to the ex-wife of the victim and police that the victim intended to sodomize the victim's son, tie the victim's son up, kill the victim's son, and drop the victim's son by a river; defendant also faxed to the ex-wife of the victim what defendant claimed to be pages from the victim's notebook depicting the abuse that the victim purportedly planned to inflict on the victim's son; the trial judge balanced the prejudicial and probative aspects of the evidence of defendant's accusations against the victim, excluded the faxed graphic images from evidence and admitted testimony about the telephone calls; and the testimony was probative of defendant's motive and intent, and the admission of testimony about defendant's accusations against the victim was not an abuse of discretion. State v. Flores, 2010-NMSC-002, 147 N.M. 542, 226 P.3d 641. Gang behavior. - Where a police officer, who was qualified to testify on the subject of gang-related law enforcement and gang culture, testified from his personal experience with gangs that gang members retaliate in violent ways when disrespected and that disrespect can occur in a number of ways, some of which would have been applicable in the defendant's situation if evidence of the defendant's gang affiliation had been presented to the jury; the officer's testimony was offered to rebut the defendant's claim of self defense and to establish the defendant's motive for shooting at a house in retribution for having been disrespected; and there was no evidence that the defendant was a gang member at the time of the shooting, that the party in the house was a gang party, or that the shooting was in any way gang-related, the officer's expert testimony was unfairly prejudicial and the admission of the testimony was not harmless. State v. Torrez, 2009-NMSC-029, 146 N.M. 331, 210 P.3d 228. Blood alcohol level. - Where the trial court excluded the blood alcohol concentration score, finding that it would be unduly prejudicial, but allowed the state to inform the jury that defendant did have alcohol in his blood when tested because such evidence was relevant, and when combined with the other evidence in the case, it provided corroborating evidence of impairment, the fact that the trial court excluded evidence of the actual result of the test under this rule did not mandate that evidence of the presence of alcohol was also too prejudicial. State v. Montoya, 2005-NMCA-078, 137 N.M. 713, 114 P.3d 393, cert. denied, 2005-NMCERT-006. Uncertainty computations within the state laboratory division's chemical testing scheme. - Where defendants, in consolidated appeals, were charged with driving under the influence of intoxicating liquor or drugs, the district court judges did not abuse their discretion in ruling that defendants' breath alcohol test results were sufficiently reliable to be admitted into evidence without uncertainty computations related to state laboratory division approved chemical testing, because the substance of defendants' admitted evidence did not affirmatively demonstrate a lack of reliability within the regulatory scheme for determining breath alcohol content, and the danger of misleading the finder of fact did not substantially outweigh the probative value of the breath alcohol test results. State v. Montoya; State v. Yap, 2016-NMCA-079, cert. denied. DNA evidence admissible. - Although the aura of infallibility surrounding DNA evidence does present the possibility of a decision based on the perceived infallibility of the evidence, the damaging nature of the DNA evidence and the potential prejudice caused by this evidence does not require exclusion when the FBI's testing procedures have already met the requirements of Rules 702 and 703. State v. Anderson, 1994-NMSC-089, 118 N.M. 284, 881 P.2d 29. The probative value of the DNA typing evidence outweighs its prejudicial effect. This evidence and the testimony will be probative because it links defendant to the crimes for which he has been charged. Any debate over the resulting probabilities that the "match" is random goes to the weight of the evidence and is properly left for the jury to determine. State v. Duran, 1994-NMSC-090, 118 N.M. 303, 881 P.2d 48). DNA evidence. - Where defendant was convicted of criminal sexual penetration, kidnapping, armed robbery, aggravated burglary, and criminal sexual contact, and where defendant argued that the district court erred in admitting testimony regarding DNA results from thigh swabs taken from the victim, which indicated the presence of male DNA but could not be tied to a particular male, claiming that the information was unhelpful to the jury and prejudicial, the district court did not abuse its discretion in admitting the testimony, because the evidence of the thigh swab was probative and helpful to the jury because the presence of male DNA found on the victim's thigh supported the state's theory that defendant committed sexual offenses against the victim, and defendant was not unfairly prejudiced because defendant had the opportunity to cross-examine the state's expert and present his own rebuttal expert to testify that the DNA results were unreliable. State v. Sena, 2018-NMCA-037, cert. granted. Some inflammatory effect does not necessarily require exclusion. - Where evidence presented by testimony of the seven-year old daughter of a murder victim was relevant, noncumulative and of considerable probative value, the trial court was correct in denying the motion to exclude the testimony on grounds of undue prejudice. State v. Noble, 1977-NMSC-031, 90 N.M. 360, 563 P.2d 1153. Admission of evidence that appellant was arrested in north Las Vegas, Nevada, for reckless driving, and that he attempted to bribe arresting officer, broke arrest and fled was nonprejudicial even though generally proof of other criminal offenses is not admissible in the trial of an accused and is considered prejudicial; here, evidence was relevant to prove identity, consciousness of guilt and attempt to escape trial and punishment. State v. Nelson, 1959-NMSC-023, 65 N.M. 403, 338 P.2d 301, cert. denied, 361 U.S. 877, 80 S. Ct. 142, 4 L. Ed. 2d 115 (1959). Online identification and GPS evidence was not unfairly prejudicial. - Where defendant, in his trial for criminal sexual penetration perpetrated in the commission of a felony, claimed that evidence that he was on GPS monitoring and that his name and address were listed on a website inexorably led to the conclusion that he was a convicted sex offender and was therefore unfairly prejudicial, the district court did not abuse its discretion by admitting the evidence, because it was reasonable to conclude that the mere fact that the victim found defendant's picture, name, and address online, without any additional information was completely unremarkable and neither reflected negatively on defendant nor created a danger of unfair prejudice, and the GPS evidence was limited to prevent any mention of why defendant was being monitored. State v. Samora, 2016-NMSC-031. Surveillance video did not pose substantial risk of unfair prejudice. - Where defendant was charged with four counts of burglary of a vehicle, and the state introduced surveillance video taken in the parking lot where defendant was alleged to have broken into several vehicle, defendant's claim that the surveillance video was outweighed by a substantial risk of unfair prejudice because the officer's identification of defendant as the person pictured was the only evidence of identity for the charges was without merit, because additional evidence, that defendant owned a dark-colored pickup truck similar to the one pictured in the surveillance video and that defendant made statements to the effect that he was previously in possession of items removed from the vehicles, indicated that the surveillance video was not the only evidence related to defendant's involvement in the incident. State v. Sweat, 2017-NMCA-069, cert. denied. Inflammatory effect does not necessarily require exclusion even if evidence not essential to case. - Although proof concerning revolvers taken from defendant was not essential to establish any of the five charges against him, nevertheless revolvers were relevant and material to questions of intent and preparation in connection with the burglary and attempted burglary charges; being thus admissible, the exhibits were not prejudicial to defendant's rights even if, as alleged, they may have had some inflammatory effect. State v. Everitt, 1969-NMCA-010, 80 N.M. 41, 450 P.2d 927. Use of mannequin to demonstrate crime. - Court did not commit error in permitting the medical examiner to use a mannequin dressed in the blood-stained clothes of the victim as a demonstrative exhibit during his testimony; there was probative value in showing the mannequin with the clothing and that outweighed any prejudice. State v. Foster, 1998-NMCA-163, 126 N.M. 177, 967 P.2d 852, cert. denied, 126 N.M. 533, 972 P.2d 352. Testimony about gang activities. - The admission of testimony about activities was not prejudicial where the defendant had introduced the topic of the reputation and activities of gangs in order to portray the incident as self-defense. State v. Coffin, 1999-NMSC-038, 128 N.M. 192, 991 P.2d 477. In a murder prosecution, a detective's testimony, both as to defendant's affiliation with a particular gang and the specific rituals and procedures of that gang was not unfairly prejudicial because, as evidence of defendant's motive and intent, the testimony had considerable probative value. State v. Nieto, 2000-NMSC-031, 129 N.M. 688, 12 P.3d 442. Pornographic material allowed as evidence. - In a prosecution for sexual offenses, the court did not err by allowing the introduction into evidence of two types of alleged pornographic material: a paperback which contained fictional accounts of sexual practices between members of the same family, and a magazine, containing pictures of nude males. The court, realizing that the jury could get overly involved in reading the book and looking at the pictures in the magazine, thus leading to a likelihood of undue prejudice, allowed the items to be admitted into evidence and described to the jury, but the items were not shown to the jury. State v. Larson, 1988-NMCA-019, 107 N.M. 85, 752 P.2d 1101. Pornographic videos admissible to show defendant's intent. - Where defendant was charged with possession of child pornography, and where the state was allowed to show portions of pornographic videos found on defendant's computer to the jury despite defendant's offer to stipulate the fact that the material constituted child pornography, the district court did not abuse its discretion in admitting the portions of the videos, because the content of the videos was relevant to defendant's charges, and the videos, though graphic in nature, were probative to show defendant's intent and to refute defendant's claim that he was viewing the video for medical research. State v. Santos, 2017-NMCA-075, cert. denied. Sexual history of victim's mother properly excluded. - In a prosecution for sexual offenses against a child, evidence of the sexual history of the mother was properly excluded. State v. La Madrid, 1997-NMCA-057, 123 N.M. 463, 943 P.2d 110. Weapon or other instrument found in possession of accused's associate was admissible as part of the history of the arrest and as bearing on the crime, and its prejudicial effect did not outweigh its probative value. State v. Samora, 1971-NMCA-149, 83 N.M. 222, 490 P.2d 480. Subsequent remedial measures. - The prohibition against admitting evidence of subsequent remedial measures, stated in Rule 11-407 NMRA, does not apply to measures taken by non-defendants. Thus, evidence that an employer, subsequent to an injury, added a safety device next to a machine was highly relevant in an action by an employee against the manufacturer of the machine and any prejudice to the manufacturer was mitigated by the court's instructions to the jury. Couch v. Astec Indus., Inc., 2002-NMCA-084, 132 N.M. 631, 53 P.3d 398, cert. denied, 132 N.M. 551, 52 P.3d 411. Insurance evidence excludable where prejudice outweighs relevancy. - Even if evidence of insurance is relevant, it still may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. Phillips v. Smith, 1974-NMCA-064, 87 N.M. 19, 528 P.2d 663, cert. denied, 87 N.M. 5, 528 P.2d 649 (1974), overruled on other grounds, Baxter v. Gannaway, 1991-NMCA-120, 113 N.M. 45, 822 P.2d 1128; Safeco Ins. Co. of Am. v. United States Fid. & Guar. Co., 1984-NMSC-045, 101 N.M. 148, 679 P.2d 816. Prior judge's ruling in insurance dispute was relevant, but of limited probative value. - In a dispute between plaintiffs and their insurance company as to whether plaintiffs' policy was in force at the time of a car accident, where the district court excluded evidence relating to a prior judge's summary judgment ruling, which had been reversed on appeal, that plaintiffs lacked insurance coverage for the accident, the district court did not err in excluding the evidence, because although the previous judge's determination that the plaintiffs' policy did not provide coverage, although wrong, tended to show that the insurance company may have denied the claim for reasons which are reasonable under the policy and was therefore relevant to the issue of bad faith, evidence of the prior summary judgment ruling was of limited probative value because the ruling was a legal determination based on a selective portion of the insurance policy, to the exclusion of other extrinsic evidence, was made after the insurance company initially decided to contest coverage, and the issues of coverage and bad faith were fact-based and did not depend solely on a legal interpretation of plaintiffs' insurance policy. Progressive Cas. Co. v. Vigil, 2018-NMSC-014, rev'g 2015-NMCA-031, 345 P.3d 1096. Admission of prior judge's ruling in insurance dispute would have confused the issues. - In a dispute between plaintiffs and their insurance company as to whether plaintiffs' policy was in force at the time of a car accident, where the district court excluded evidence relating to a prior judge's summary judgment ruling, which had been reversed on appeal, that plaintiffs lacked insurance coverage for the accident, the district court did not err in excluding the evidence, because although evidence of the prior summary judgment ruling on coverage was relevant to the issue of bad faith, it would have been confusing to admit the evidence at trial, because to fairly weigh evidence of the summary judgment ruling, the jury would have required significant explanation about summary judgment, appellate procedures, the meaning of reversal and remand, and other legal doctrines. Progressive Cas. Co. v. Vigil, 2018-NMSC-014, rev'g 2015-NMCA-031, 345 P.3d 1096. Evidence that insurance company settled third-party liability claims properly excluded. - In a dispute between plaintiffs and their insurance company as to whether plaintiffs' policy was in force at the time of a car accident, where the district court excluded evidence that the insurance company paid a $200,000 settlement to settle third-party claims and that the insurance company sued plaintiffs for reimbursement of the settlement amount, the district court did not abuse its discretion in excluding the evidence, because the settlement and the reimbursement claim were inextricably linked and if the plaintiffs were permitted to introduce evidence of the reimbursement claim, the court would need to instruct the jury that the insurance company was not entitled to reimbursement as a matter of a law, which would prejudice the jury against the insurance company, the jury would be confused if the plaintiffs were allowed to argue that the insurance company acted in bad faith by denying plaintiffs' first-party claim yet paid third-party claims, and admitting evidence of the settlement payments would lead the jury to speculate about the severity and details of the accident, which both parties wanted to avoid. The evidence, therefore, would have caused unfair prejudice to one or both parties, confused the issues at trial by inserting a legal issue that the district court had decided as a matter of law, lead the jury to believe its coverage determination was not important, and cause the jury to speculate about the severity and details of the accident. Progressive Cas. Co. v. Vigil, 2018-NMSC-014, rev'g 2015-NMCA-031, 345 P.3d 1096. Evidence that party is insured is generally inadmissible because it is immaterial to the issues tried and prejudicial, but insurance may be mentioned when it is highly relevant to an issue in the lawsuit. Mac Tyres, Inc. v. Vigil, 1979-NMSC-010, 92 N.M. 446, 589 P.2d 1037. Evidence of workers' compensation claim. - In a suit for recovery of damages for injuries sustained in a motor vehicle accident, the trial court did not abuse its discretion in refusing to admit plaintiff's workers' compensation complaint into evidence given that the complaint would likely have confused the jury because the definition of "total disability" under worker's compensation law is much narrower than the basis for the damages plaintiff was alleging at trial. Blacker v. U-Haul Co., 1992-NMCA-001, 113 N.M. 542, 828 P.2d 975. Reference to defendant's silence prejudicial. - Where prosecutor comments on or inquires about defendant's silence, such a reference can have an intolerably prejudicial impact. State v. Baca, 1976-NMSC-015, 89 N.M. 204, 549 P.2d 282. Reference by witness to defendant's silence. - Where the prosecutor comments on or inquires about the defendant's silence, such a reference can have an intolerable prejudicial impact and may require reversal under the "plain error" rule. However, where the witness simply refers to the defendant's silence, the defendant must object to this testimony as required by Rule 11-103 NMRA in order to preserve the error. In such a situation the defendant would simply be objecting to the testimony of the witness as being inadmissible under either this rule or Rule 402. State v. Mirabal, 1982-NMCA-093, 98 N.M. 130, 645 P.2d 1386. Evidence of undue influence or lack of testamentary capacity must be admitted. - A motion seeking the exclusion of evidence of alleged undue influence or the lack of testamentary capacity of a decedent is in the nature of a motion to exclude evidence on the grounds of irrelevance, waste of time or prejudice under Rule 11-402 NMRA or this rule and the trial court correctly denies such a motion; by express statutory provision it is required to determine the validity of, and the persons entitled to the decedent's property under any testamentary document filed for probate. In re Estate of Elbelt, 1982-NMCA-174, 99 N.M. 229, 656 P.2d 892. Assault victim's reputation for violence. - Probative value of evidence of assault victim's reputation for violence outweighed its prejudicial effect, where the very gruesomeness of information that the victim had cut off people's ears in Vietnam established the great impact it could have had on defendant's state of mind. State v. Salgado, 1991-NMCA-111, 112 N.M. 793, 819 P.2d 1351. Rape and kidnapping conviction relevant to civil harassment suit. - In tort action against employer based on sexual harassment, evidence of harasser's conviction for kidnapping and rape was relevant to show employer's knowledge of and reaction to employee's conduct. Coates v. Wal-Mart Stores, Inc., 1999-NMSC-013, 127 N.M. 47, 976 P.2d 999. Expert testimony on witness' prior drug addiction not admitted. - Trial court did not abuse its discretion in excluding testimony of defendant's expert witness about prior heroin addiction of state's witness where trial court found that the expert had not applied any particular psychological test with regard to state's witness, that the testimony would be highly prejudicial while having little probative value due to lack of clear connection between witness' prior addiction and her present ability to recall, and that evidence would not be helpful to jury. State v. Blea, 1984-NMSC-055, 101 N.M. 323, 681 P.2d 1100. Question of credibility is an issue for the fact finder. - Where defendant was charged with homicide by vehicle and driving while under the influence of intoxicating liquor or drugs, and where the state appealed the district court's pretrial ruling prohibiting one of the state's witnesses from testifying as an expert, the district court abused its discretion in denying the admission of expert testimony based on a concern that the witness's involvement in the case had the potential to impact his testimony, because there was no danger of unfair prejudice or misleading the jury that substantially outweighed the probative value of the witness's expert testimony, and any concern that the witness's involvement would impact his testimony was a question of credibility for the jury. State v. Ruffin, 2019-NMCA-009. Evidence of cashing of other checks in forgery case. - In a prosecution for forging a signature on a traveler's check, evidence that other traveler's checks issued to the same individual whose signature the defendant was charged with forging were cashed during a period of a few days in Albuquerque, and that the checks had all earlier been lost or stolen at the same time in California, was relevant as circumstantial evidence tending to establish that the defendant was physically present in Albuquerque, the scene of the offense charged, in contradiction of his alibi testimony, that he had been out of the county, since the prejudicial effect of the evidence did not outweigh its probative value. State v. Young, 1985-NMCA-079, 103 N.M. 313, 706 P.2d 855. Past offense admissible as relating to retaliation charge. - In a prosecution for retaliation against a witness, it was not error to admit evidence regarding the name and nature of the prior felony offense which formed the basis for the charge that defendant retaliated against a person who witnessed that offense. State v. Warsop, 1998-NMCA-033, 124 N.M. 683, 954 P.2d 748, cert. denied, 124 N.M. 589, 953 P.2d 1087. Lack of license irrelevant in bad check case. - The trial court did not abuse its discretion in excluding evidence that some of the work performed by interior decorator required a contractor's license where the probative value of such evidence was substantially outweighed by the danger of confusing the issues. State v. Platt, 1992-NMCA-110, 114 N.M. 721, 845 P.2d 815. Evidence of similar, contemporaneous robberies by another in robbery case. - Since no prejudice would have resulted to defendant, charged with robbery, in the admission of evidence that similar, contemporaneous robberies had been committed by some other person, and since such other evidence would have been highly probative on the defendant's defense of mistaken identity, the evidence should have been admitted. State v. Saavedra, 1985-NMSC-077, 103 N.M. 282, 705 P.2d 1133. Separate attacks evidence of pattern. - Joinder in one trial of all counts arising from separate attacks on two victims was proper where the evidence relating to the attacks displayed sufficiently distinctive similarities to permit an inference of pattern for purposes of proving identity and the evidence of both crimes did not outweigh its probative value. State v. Peters, 1997-NMCA-084, 123 N.M. 667, 944 P.2d 896. Testimony regarding damage in condemnation proceeding. - In a proceeding for condemnation of property owned by a company, the trial court did not abuse its discretion in excluding the testimony of a director of the company since the president and a project manager had already testified as to the loss of value due to the taking. 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). Evidence of juvenile's escape from detention facility. - District court did not abuse its discretion in determining that evidence of defendant's unauthorized departure from a Colorado juvenile detention facility was admissible, at his trial for murder, where the court properly could have concluded that defendant's reasons for eluding the police were circumstantial evidence relevant to the jury's determination whether his acts indicated a depraved mind regardless of human life and whether he had a subjective knowledge of the risk involved in his actions. State v. Omar-Muhammad, 1987-NMSC-043, 105 N.M. 788, 737 P.2d 1165. Post-traumatic stress disorder admissible. - Post-traumatic stress disorder (PTSD) is both valid and probative and, because it is not unduly prejudicial, it is admissible for establishing whether an alleged rape victim exhibits symptoms of PTSD that are consistent with rape or sexual abuse. State v. Alberico, 1993-NMSC-047, 116 N.M. 156, 861 P.2d 192. Psychologist's testimony was extremely prejudicial and went beyond the permissible boundaries of Post-Traumatic Stress Disorder testimony outlined in State v. Alberico, 1993-NMSC-047, 116 N.M. 156,861 P.2d 192, since the expert improperly commented upon the credibility of the complainant; the expert's naming of the perpetrator was tantamount to saying that complainant was telling the truth; and the expert testified that the victim's PTSD symptoms were in fact caused by sexual abuse. State v. Lucero, 1993-NMSC-064, 116 N.M. 450, 863 P.2d 1071. District court did not abuse its discretion in denying testimony regarding the victim's post-traumatic stress disorder. - Where defendant, charged with aggravated battery for shooting and injuring his son, offered an expert witness to testify generally about Post-Traumatic Stress Disorder (PTSD), because the victim had been diagnosed with PTSD and defendant claimed that a diagnosis of PTSD went to the reasonableness of his assumption that he was in apparent danger when he shot his son, the district court did not err in suppressing the proposed testimony, because the expert witness had no prior contact with the victim and therefore the proposed testimony would not have accounted for any individual variation or meaningfully assisted the jury in determining whether defendant's reaction to the manifestation of PTSD in the victim was reasonable. State v. Branch, 2018-NMCA-031, replacing 2016-NMCA-071, 387 P.3d 250, cert. denied. Post-traumatic stress disorder testimony inadmissible. - Where defendant was charged with aggravated battery with a deadly weapon for shooting and injuring his son, the district court's denial of defendant's request to have a psychologist provide general testimony regarding post-traumatic stress disorder (PTSD) was not an abuse of discretion, because the fact that the expert witness never met with the victim, the proposed testimony would not have accounted for any individual variation of PTSD and would not have meaningfully assisted the jury in determining whether defendant's reaction to the manifestation of PTSD in the shooting victim was reasonable. State v. Branch, 2016-NMCA-071, 387 P.3d 250, replaced by 2018-NMCA-031, and cert. quashed.. Psychological stress evaluations. - Unless the trial court recognizes the instrument operator as an expert, psychological stress evaluation has no probative value. Simon Neustadt Family Center v. Bludworth, 1982-NMCA-032, 97 N.M. 500, 641 P.2d 531, overruled on other grounds, Melnick v. State Farm Mut. Auto. Ins. Co., 1988 -NMSC-012, 106 N.M. 726, 749 P.2d 1105. Evidence of plaintiff's mental state relevant, but excluded. - In action for mental distress arising out of sexual harassment, evidence of plaintiff's husband's incarceration for murder, while somewhat probative as to plaintiff's mental state, was properly excluded because of the danger of unfair prejudice. Coates v. Wal-Mart Stores, Inc., 1999-NMSC-013, 127 N.M. 47, 976 P.2d 999. Exclusion of neuropsychologist's testimony held error. - Where neuropsychologist's testimony was relevant to the essential element of deliberate intent in a murder prosecution, and because the testimony was not cumulative, the trial court's exclusion on the basis that it was a "waste of time" was error. State v. Balderama, 2004-NMSC-008, 135 N.M. 329, 88 P.3d 845. Prior inconsistent statement admissible for impeachment purposes. - 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 the 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. Extrajudicial inconsistent statement by a witness concerning an admission made by the defendant is not hearsay if the declarant testifies at trial and is subject to cross-examination concerning the statement, and the statement is inconsistent with the testimony of the declarant at trial. State v. Vigil, 1990-NMSC-066, 110 N.M. 254, 794 P.2d 728; State v. Woodward, 1995-NMSC-074, 121 N.M. 1, 908 P.2d 231. 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. Testimony of informant's former attorney inadmissible. - The testimony of an informant's former attorney offered for the purpose of impeaching the informant's reputation for truthfulness violates the attorney-client privilege and is inadmissible under the Rules of Evidence. State v. Hinojos, 1980-NMCA-079, 95 N.M. 659, 625 P.2d 588. Testimony of witness who has undergone pretrial hypnosis to revive his memory without the administration of any drugs is neither automatically inadmissible nor subject to a blanket proscription, but the party seeking to introduce hypnotically refreshed testimony must establish compliance with the requirements for admissibility by clear and convincing evidence. State v. Beachum, 1981-NMCA-137, 97 N.M. 682, 643 P.2d 246. In establishing a proper foundation for the use of hypnotically refreshed testimony, the hypnotist may testify to the reliability of the procedures utilized, but may not on direct examination offer tape recordings, video tapes or transcripts of the hypnosis sessions as substantive evidence to prove the truth of the matters therein stated. State v. Beachum, 1981-NMCA-137, 97 N.M. 682, 643 P.2d 246. Testimony of prehypnotic recollections is admissible in the sound discretion of the trial court, but post-hypnotic recollections, revived by the hypnosis procedure, are only admissible in a trial where a proper foundation has also first established the expertise of the hypnotist and that the techniques employed were correctly performed, free from bias or improper suggestibility. State v. Beachum, 1981-NMCA-137, 97 N.M. 682, 643 P.2d 246. Findings by physician which were consistent with victim's report does not constitute the type of expert opinion based on scientific, technical, or other expert knowledge that triggers a reliability hearing. State v. Lente, 2005-NMCA-111, 138 N.M. 232, 119 P.3d 737, cert. denied, 2005-NMCERT-008. Circumstances where proper to exclude rebuttal evidence. - Under former rule, it was discretionary with trial court to exclude rebuttal evidence which is properly part of the case-in-chief or merely cumulative thereof. Phillips v. Smith, 1974-NMCA-064, 87 N.M. 19, 528 P.2d 663, cert. denied, 87 N.M. 5, 528 P.2d 649 (1974), overruled on other grounds, Baxter v. Gannaway, 1991-NMCA-120, 113 N.M. 45, 822 P.2d 1128. The admission of a juvenile probation officer's rebuttal testimony regarding the officer's opinion of the defendant's reputation for truthfulness is impermissibly prejudicial. State v. Guess, 1982-NMCA-114, 98 N.M. 438, 649 P.2d 506. Evidence of experiment must not confuse or mislead. - Evidence of an experiment is admissible if it is of such nature as to aid the jury in determining the issues of fact; obviously some experiments would tend towards confusion rather than enlightenment. It is for trial court in the exercise of its discretion to determine such preliminary questions, and appellate court will not interfere unless there is an abuse thereof. No hard and fast rule can be announced as to degree of similarity of conditions under which experiment is to be made, but the law does not require that the conditions be identical; it is sufficient if there is a substantial similarity of conditions. State v. Rose, 1968-NMSC-091, 79 N.M. 277, 442 P.2d 589, cert. denied, 393 U.S. 1028, 89 S. Ct. 626, 21 L. Ed. 2d 571 (1969). Illustrative evidence must not be misleading. - Although diagrams are admissible to illustrate the testimony of a witness, nevertheless admission of exhibit was within trial court's discretion, and it was of the opinion that the diagram might mislead jury. Cantrell v. Dendahl, 1972-NMCA-035, 83 N.M. 583, 494 P.2d 1400. Testimony regarding accident scene. - Evidence pertaining to the seriousness of the injuries, the extent of the wreck and the heroic efforts required of rescuers to deal with the devastation was admissible in the trial of the perpetrator as proof of the elements of depraved mind murder. State v. Landgraf, 1996-NMCA-024, 121 N.M. 445, 913 P.2d 252. Testimony by police and fire officers that they quit their jobs as a consequence of involvement in high speed chase and wreck involving serious injuries was admissible in the trial of the perpetrator as proof of the elements of depraved mind murder. State v. Landgraf, 1996-NMCA-024, 121 N.M. 445, 913 P.2d 252. Testimony on probable cause would have confused issues and misled jury. - Trial court properly excluded testimony as to whether a police officer had probable cause to search the nearby house trailer of the defendant's brother because the evidence would not tend to prove that the officer had lied in connection with defendant's sale of heroin to the officer and the offered testimony would also have confused the issues and mislead the jury. State v. Barela, 1978-NMCA-034, 91 N.M. 634, 578 P.2d 335, cert. denied, 91 N.M. 610, 577 P.2d 1256. To determine that exhibits wrongly received into evidence constituted harmless error, evidence of defendant's guilt must be so overwhelmingly persuasive that under no reasonable probability could the exhibits have induced the jury's findings of guilt. State v. Gutierrez, 1979-NMCA-016, 93 N.M. 232, 599 P.2d 385. Post-injury foreclosure. - In an personal injury case, evidence of foreclosure proceedings and repossession of a plaintiff's car after the accident due to financial problems resulting from the plaintiff's inability to work was properly excluded under this rule because this evidence may have given the jury the wrong impression that the plaintiffs should have been compensated for these events. Lozoya v. Sanchez, 2003-NMSC-009, 133 N.M. 579, 66 P.3d 948. Refusal to sever counts not error. - Where the strength and quality of the evidence on various counts convinces the appellate court that the defendant was not prejudiced by the failure to sever multiple counts submitted to the jury, the trial court did not err in refusing to sever. State v. Montano, 1979-NMCA-101, 93 N.M. 436, 601 P.2d 69, cert. denied, 93 N.M. 683, 604 P.2d 821. No abuse of discretion found. State v. Gibbins, 1990-NMCA-013, 110 N.M. 408, 796 P.2d 1104. Law reviews. - For article, "Rape Law: The Need for Reform," see 5 N.M.L. Rev. 279 (1975). For article, "The Admissibility of Scientific Evidence Under the New Mexico and Federal Rules of Evidence," see 6 N.M.L. Rev. 187 (1976). For article, "Survey of New Mexico Law, 1979-80: Evidence," see 11 N.M.L. Rev. 159 (1981). For article, "Evidence," see 12 N.M.L. Rev. 379 (1982). For note, "Custodial Interrogation in New Mexico: State v. Trujillo," see 12 N.M.L. Rev. 577 (1982). For article, "Evidence I," see 13 N.M.L. Rev. 407 (1983). For article, "Evidence II: Evidence of Other Crimes as Proof of Intent," see 13 N.M.L. Rev. 423 (1983). For note, "Evidence - The Admissibility of Hypnotically Refreshed Testimony in New Mexico: State v. Beachum," see 13 N.M.L. Rev. 541 (1983). For note, "Lie Detector Evidence - New Mexico Court of Appeals Holds Voice-Stress Lie Detector Evidence Conditionally Admissible: Simon Neustadt Family Center, Inc. v. Bludworth," see 13 N.M.L. Rev. 703 (1983). For article, "Survey of New Mexico Law, 1982-83: Evidence," see 14 N.M.L. Rev. 161 (1984). For annual survey of New Mexico law of evidence, 19 N.M.L. Rev. 679 (1990). For note, "Criminal Law - New Mexico Expands the Entrapment Defense: Baca v. State," 20 N.M.L. Rev. 135 (1990). For note, "Boundaries, Balancing, and Prior Felony Convictions: Federal Rule of Evidence Rule 403 After United States v. Old Chief," see 28 N.M.L. Rev. 583 (1998). For note, "The Admission of Polymerase Chain Reaction DNA Evidence in New Mexico - State v. Sills," see 29 N.M.L. Rev. 429 (1999). For comment, "State v. Jacobs: A Comment on One State's Choice to Restrict Victim Impact Evidence at Death Penalty Sentencing," see 31 N.M.L. Rev. 539 (2001). Am. Jur. 2d, A.L.R. and C.J.S. references. - 29 Am. Jur. 2d Evidence § 324 et seq. Prejudicial effect of admission of evidence as to Communist or other subversive affiliation or association of accused, 30 A.L.R.2d 589. Admissibility in evidence of colored photographs, 53 A.L.R.2d 1102. Admissibility and propriety, in rape prosecution, of evidence that accused is married, has children, and the like, 62 A.L.R.2d 1067. Admissibility and propriety, in homicide prosecution, of evidence as to deceased's spouse and children, 67 A.L.R.2d 731. Admissibility of photograph of corpse in prosecution for homicide or civil action for causing death, 73 A.L.R.2d 769. Propriety and prejudicial effect of showing, in criminal case, withdrawn guilty plea, 86 A.L.R.2d 326. Propriety and prejudicial effect of comment or evidence as to accused's willingness to take lie detector test, 95 A.L.R.2d 819. Admissibility of evidence that defendant escaped or attempted to escape while being detained for offense in addition to that or those presently being prosecuted, 3 A.L.R.4th 1085. Admissibility and effect, on issue of party's credibility or merits of his case, of evidence of attempts to intimidate or influence witness in civil action, 4 A.L.R.4th 829. Propriety and prejudicial effect of informing jury that witness in criminal prosecution has taken polygraph test, 15 A.L.R.4th 824. Propriety and prejudicial effect of witness testifying while in prison attire, 16 A.L.R.4th 1356. Modern status of rules as to admissibility of evidence of prior accidents or injuries at same place, 21 A.L.R.4th 472. Admissibility of evidence as to other offense as affected by defendant's acquittal of that offense, 25 A.L.R.4th 934. Fact that witness undergoes hypnotic examination as affecting admissibility of testimony in civil case, 31 A.L.R.4th 1239. Admissibility of voice stress evaluation test results or of statements made during test, 47 A.L.R.4th 1202. Prejudicial effect of bringing to jury's attention fact that plaintiff in personal injury or death action is entitled to workers' compensation benefits, 69 A.L.R.4th 131. Admissibility of DNA identification evidence, 84 A.L.R.4th 313. Admissibility of tape recording or transcript of "911" emergency telephone call, 3 A.L.R.5th 784. Sufficiency of evidence that witness in criminal case was hypnotized, for purposes of determining admissibility of testimony given under hypnosis or of hypnotically enhanced testimony, 16 A.L.R.5th 841. Admissibility and prejudicial effect of evidence, in criminal prosecution, of defendant's involvement with witchcraft, satanism, or the like, 18 A.L.R.5th 804. Admissibility of evidence of prior physical acts of spousal abuse committed by defendant accused of murdering spouse or former spouse, 24 A.L.R.5th 465. Admissibility in homicide prosecution of allegedly gruesome or inflammatory visual recording of crime scene, 37 A.L.R.5th 515. Admissibility of expert testimony concerning domestic-violence syndromes to assist jury in evaluating victim's testimony or behavior, 57 A.L.R. 5th 315. Admissibility of expert or opinion evidence of battered-woman syndrome on issue of self-defense, 58 A.L.R.5th 749. Admissibility, in rape case, of evidence that accused raped, or attempted to rape person other than prosecutrix - prior offenses, 86 A.L.R.5th 59. Admissibility, in rape case, of evidence that accused raped or attempted to rape person other then prosecutrix - subsequent acts, 87 A.L.R.5th 181. Admissibility, in rape case, of evidence that accused raped, or attempted to rape, person other than prosecutrix - offenses unspecified as to time, 88 A.L.R.5th 429. Modern status of rule relating to admission of results of lie detector (polygraph) test in federal criminal trials, 43 A.L.R. Fed. 68. Propriety under Rule 403 of the Federal Rules of Evidence, permitting exclusion of relevant evidence on grounds of prejudice, confusion, or waste of time, of attack on credibility of witness for party, 48 A.L.R. Fed. 390. Evidence offered by defendant at federal criminal trial as inadmissible, under Rule 403 of Federal Rules of Evidence, on ground that probative value is substantially outweighed by danger of unfair prejudice, confusion of issues, or misleading the jury, 76 A.L.R. Fed. 700. 22A C.J.S. Criminal Law § 759 et seq.; 31A C.J.S. Evidence § 197 et seq.