N.M. R. Evid. 11-406
N.M. R. Evid. 11-406
Committee commentary. - The language of Rule 11-406(A) 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. This rule retains Paragraph B from the earlier version of the New Mexico rule. There is no federal equivalent to Paragraph B.
[Adopted by Supreme Court Order No. 12-8300-015, effective for all cases pending or filed on or after June 16, 2012.]
ANNOTATIONS The 2012 amendment, approved by Supreme Court Order No. 12-8300-015, effective for all cases pending or filed on or after June 16, 2012, rewrote the rule to make stylistic changes. Compiler's notes. - This rule is similar to Rule 406 of the Federal Rules of Evidence. "Habit" construed. - Habit describes one's regular response to a repeated specific situation; it is a regular practice of meeting a particular kind of situation with a specific type of conduct. De La O v. Bimbo's Restaurant, Inc., 1976-NMCA-115, 89 N.M. 800, 558 P.2d 69, cert. denied, 90 N.M. 7, 558 P.2d 619; Ohlson v. Kent Nowlin Constr. Co., 1983 -NMCA-008, 99 N.M. 539, 660 P.2d 1021. Admission of evidence is discretionary with the trial court, and discretion is not abused when the evidence at trial shows by a preponderance of the evidence that the item is what it purports to be. State v. Sanchez, 1982-NMCA-155, 98 N.M. 781, 652 P.2d 1232. Admission of blood test results found not to be error. State v. Sanchez, 1982-NMCA-155, 98 N.M. 781, 652 P.2d 1232. Incidents too dissimilar to show habit. - In a negligence suit against a restaurant owner for injuries sustained in a barroom brawl in 1972, subsequent incidents in 1975 (a drunken and abusive state leading to charges of driving while under the influence of liquor, an abusive state involving disorderly conduct, a battery conviction and a shooting at the Club Amor) were dissimilar to the 1972 incident. De La O v. Bimbo's Restaurant, Inc., 1976-NMCA-115, 89 N.M. 800, 558 P.2d 69, cert. denied, 90 N.M. 7, 558 P.2d 619. Relevancy of evidence of subsequent habit. - Absent evidence tending to show that a habit existed in 1972, a 1975 habit would not be relevant to a 1972 incident. De La O v. Bimbo's Restaurant, Inc., 1976-NMCA-115, 89 N.M. 800, 558 P.2d 69, cert. denied, 90 N.M. 7, 558 P.2d 619. "Instances of conduct sufficient in number" construed. - This rule contemplates introduction of evidence concerning sufficient instances of routine practice to warrant a finding that the practice was routine, and here the "sufficient in number" requirement was not satisfied since only one instance of an arguably similar incident was given. State v. Ross, 1975-NMCA-056, 88 N.M. 1, 536 P.2d 265. Law reviews. - 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, 1982-83: Evidence," see 14 N.M.L. Rev. 161 (1984). Am. Jur. 2d, A.L.R. and C.J.S. references. - 29 Am. Jur. 2d Evidence § 390 et seq. Admissibility of evidence showing plaintiff's antecedent intemperate habits, in personal injury motor vehicle accident action, 46 A.L.R.2d 103. Proof of mailing by evidence of business or office custom, 45 A.L.R.4th 476. Products liability: admissibility of defendant's evidence of industry custom or practice in strict liability action, 47 A.L.R.4th 621. Habit or routine practice evidence under Uniform Evidence Rule 406, 64 A.L.R.4th 567. Admissibility of evidence of habit or routine practice under Rule 406, Federal Rules of Evidence, 53 A.L.R. Fed. 703. 23 C.J.S. Criminal Law § 830; 32A C.J.S. Evidence §§ 768, 785.