N.M. R. Crim. P. Dist. Ct. 5-508

As amended through May 8, 2024

Rule 5-508 - Notice of alibi; entrapment defense

A.Notice. In criminal cases not within magistrate court trial jurisdiction, upon the written demand of the district attorney, specifying as particularly as is known to the district attorney, the place, date and time of the commission of the crime charged, a defendant who intends to offer evidence of an alibi or entrapment as a defense shall, not less than ten (10) days before trial or such other time as the district court may direct, serve upon such district attorney a notice in writing of the defendant's intention to introduce evidence of an alibi or evidence of entrapment.

B.Content of notice. A notice of alibi or entrapment shall contain specific information as to the place at which the defendant claims to have been at the time of the alleged offense and, as particularly as known to defendant or the defendant's attorney, the names and addresses of the witnesses by whom the defendant proposes to establish an alibi or raise an issue of entrapment. Not more than five (5) days after receipt of defendant's witness list or at such other time as the district court may direct, the district attorney shall serve upon the defendant the names and addresses, as particularly as known to the district attorney, of the witnesses the state proposes to offer in rebuttal to discredit the defendant's alibi or claim of entrapment at the trial of the cause.

C.Continuing duty to give notice. Both the defendant and the district attorney shall be under a continuing duty to promptly disclose the names and addresses of additional witnesses which come to the attention of either party subsequent to filing their respective witness lists as provided in this rule.

D.Failure to give notice. If a defendant fails to serve a copy of such notice as herein required, the court may exclude evidence offered by such defendant for the purpose of proving an alibi, except the testimony of the defendant himself. If such notice is given by a defendant, the district court may exclude the testimony of any witness offered by the defendant for the purpose of proving an alibi or entrapment if the name and address of such witness was known to defendant or the defendant's attorney but was not stated in such notice. If the district attorney fails to file a list of witnesses and serve a copy on the defendant as provided in this rule, the court may exclude evidence offered by the state to contradict the defendant's alibi or entrapment evidence. If notice is given by the district attorney, the court may exclude the testimony of any witnesses offered by the district attorney for the purpose of contradicting the defense of alibi or entrapment if the name and address of the witness is known to the district attorney but was not stated in such notice. For good cause shown the court may waive the requirements of this rule.

E.Admissibility as evidence. The fact that a notice of alibi was given or anything contained in such notice shall not be admissible as evidence in the trial of the case.

N.M. R. Crim. P. Dist. Ct. 5-508

As amended, effective May 1, 1998; by Supreme Court Order No. 12-8300-027, effective for all cases filed or pending on or after January 7, 2013.

Committee commentary. - This rule was derived from Rule 3.200 of the Florida Rules of Criminal Procedure. The constitutionality of the Florida rule was upheld in Williams v. Florida, 399 U.S. 78, 90 S. Ct. 1893, 26 L. Ed. 2d 446 (1970). In a more recent case, the United States Supreme Court declared the Oregon notice of alibi rule unconstitutional because the Oregon rules fail to give the defendant reciprocal discovery rights. Wardius v. Oregon, 412 U.S. 470, 93 S. Ct. 2208, 37 L. Ed. 2d 470 (1973)

A similar rule has now been adopted in the federal rules as Rule 12.1. See 62 F.R.D. 271, 292-95 (1974). See also, American Bar Association Standards Relating to Discovery and Procedure Before Trial, Section 3.3 (Approved Draft 1970).

This rule was derived from Rule 3.200 of the Florida Rules of Criminal Procedure. The constitutionality of the Florida rule was upheld in Williams v. Florida, 399 U.S. 78, 90 S. Ct. 1893, 26 L. Ed. 2d 446 (1970). In a more recent case, the United States Supreme Court declared the Oregon notice of alibi rule unconstitutional because the Oregon rules fail to give the defendant reciprocal discovery rights. Weirdest v. Oregon, 412 U.S. 470, 93 S. Ct. 2208, 37 L. Ed. 2d 470 (1973).

A similar rule has now been adopted in the federal rules as Rule 12.1. See 62 F.R.D. 271, 292-95 (1974). See also, American Bar Association Standards Relating to Discovery and Procedure Before Trial, Section 3.3 (Approved Draft 1970).

ANNOTATIONS The 2012 amendment, approved by Supreme Court Order No. 12-8300-027, effective January 7, 2013, provided the maximum time for service of the prosecution's list of rebuttal witnesses; and in Paragraph B, at the beginning of the second sentence, after "Not", deleted "less" and added "more". The 1998 amendment, effective May 1, 1998, inserted "entrapment defense" in the Rule heading; in Paragraph A, substituted "alibi or entrapment as a defense" for "alibi in his defense" near the middle and "of the defendant's intention to introduce evidence of an alibi or evidence of entrapment" for "of his intention to claim such alibi" near the end of Paragraph A, designated the second and third sentence of Paragraph A as Paragraph B and redesignated the remaining Paragraphs accordingly; in Paragraph B, substituted "A notice of alibi or entrapment" for "Such notice" at the beginning, "the defendant's" for "his", "the defendant" for "he", "an alibi or raise an issue of entrapment" for "such alibi" at the end of the first sentence, and inserted "or claim of entrapment" near the end of the second sentence; in Paragraph D, inserted "or entrapment" throughout the paragraph, substituted "the defendant's" for "his" near the end of the second sentence, deleted "thereof" preceding "on the defendant"; and made minor stylistic changes. Rule 5-508(E) NMRA applies regardless of whether or not the defendant has elected to abandon his or her alibi defense. State v. O'Neal, 2008-NMCA-022, 143 N.M. 437, 176 P.3d 1169. No prejudice for noncompliance. - Where the district court erred in allowing the State to introduce evidence regarding the defendant's notice of alibi, the defendant was not prejudiced where the defendant never withdrew his notice of alibi and the State's evidence regarding the notice of alibi was consistent with the defendant's alibi theory. State v. O'Neal, 2008-NMCA-022, 143 N.M. 437, 176 P.3d 1169. Failure to give notice of alibi. - Defendant's defense of mistaken identity, which consisted of the argument that because she and her sister bear a close resemblance, the arresting officers mistook the defendant as the one who purchased ingredients used in the manufacture of methamphetamine and that defendant was at her sister's apartment during the time in question, was simply evidence to support an alibi and because defendant failed to give the state notice of her alibi defense, the district court properly refused admission of a photograph of defendant's sister which defendant offered to show the resemblance between the sisters. State v. Kent, 2006-NMCA-134, 140 N.M. 606, 145 P.3d 86, cert. denied, 2006-NMCERT-010. Constitutionality. - Since New Mexico's alibi rule provides for reciprocal discovery rights and provides ample opportunity for an investigation of the facts, it does not violate due process. State v. Smith, 1975-NMCA-139, 88 N.M. 541, 543 P.2d 834. Purpose. - The notice of alibi rule is designed to enhance the search for truth in the criminal trial by insuring both the defendant and the state ample opportunity to investigate certain facts crucial to the determination of guilt or innocence. State v. Watley, 1989-NMCA-112, 109 N.M. 619, 788 P.2d 375. Right to compulsory process not violated. - The alibi rule does not violate the right to compulsory process, since it does not prevent a defendant from compelling the attendance of witnesses, but rather, provides reasonable conditions for the presentation of alibi evidence. State v. Smith, 1975-NMCA-139, 88 N.M. 541, 543 P.2d 834. Improper notice by defendant. - In deciding whether or not to admit alibi evidence when a proper notice has not been served by the defendant, the trial court should balance the potential for prejudice to the prosecution against the impact on the defense and whether the evidence might have been material to the outcome of the trial. Neither the purpose nor intent behind the notice-of-alibi rule appears to have been frustrated in the case at hand where the state had the opportunity to prepare its case by interviewing disclosed witnesses and investigating facts necessary to adjudicate the guilt or innocence of the defendant. McCarty v. State, 1988-NMSC-079, 107 N.M. 651, 763 P.2d 360. Application of rule does not force defendant to incriminate himself. - In applying the alibi rule so as to exclude evidence of alibi not disclosed to the district attorney and thus giving defendant a choice between foregoing the defense or taking the stand himself to present it, the trial court did not violate defendant's privilege against self-incrimination. State v. Smith, 1975-NMCA-139, 88 N.M. 541, 543 P.2d 834. Adequate inquiry into defendant's violation of rule. - The record did not support the claim that the trial court acted arbitrarily and without adequate inquiry into the circumstances surrounding defendant's violation of the notice of alibi rule when it excluded the evidence in question, where it showed the parties were given opportunity to present their contentions to the trial court and after certain exhibits were admitted, attorneys for the parties argued to the court, and where furthermore the contention was not raised in the trial court. State v. Smith, 1975-NMCA-139, 88 N.M. 541, 543 P.2d 834. Defendant found not prejudiced by alleged lack of sufficiency of written demand. - The appellate court did not need to decide whether the lack of sufficiency of the district attorney's written demand of notice of an alibi defense was waived because not raised until after trial, since the record affirmatively showed that the defense had later been provided the information allegedly missing from the original written demand, and thus defendants were not prejudiced by any technical deficiency. State v. Smith, 1975-NMCA-139, 88 N.M. 541, 543 P.2d 834. Prejudicial effect of noncompliance. - In considering the potential for prejudice to the prosecution from the admission of previously undisclosed alibi testimony, the trial court must take into account not only the prejudicial effect of noncompliance with this rule on the immediate case, but also the necessity to enforce the rule to preserve the integrity of the trial process. The trial judge should consider whether noncompliance was a willful attempt to prevent the state from investigating necessary facts. State v. Watley, 1989-NMCA-112, 109 N.M. 619, 788 P.2d 375. Am. Jur. 2d, A.L.R. and C.J.S. references. - 21 Am. Jur. 2d Criminal Law §§ 223 to 243. Validity and construction of statutes requiring defendant in criminal case to disclose matter as to alibi defense, 45 A.L.R.3d 958. Construction and application of Rule 12.1, Federal Rules of Criminal Procedure, requiring, upon written notice, exchange of names of witnesses to be used to establish or rebut defendant's alibi, 42 A.L.R. Fed. 878. 22A C.J.S. Criminal Law §§ 463, 464.