N.M. R. Evid. 11-704
An opinion is not objectionable just because it embraces an ultimate issue.
N.M. R. Evid. 11-704
Committee commentary. - The language of Rule 11-704 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. New Mexico's rule differs from the federal rule in that it does not create an exception prohibiting expert witnesses in criminal cases from testifying about the accused's mental state.
The committee deleted all reference to an "inference" on the grounds that the deletion made the rule flow better and easier to read, and because any "inference" is covered by the broader term "opinion." Courts have not made substantive decisions on the basis of any distinction between an opinion and an inference. No change in current practice is intended.
[Adopted by Supreme Court Order No. 12-8300-015, effective for all cases pending or filed on or after June 16, 2012.]
ANNOTATIONS The 2012 amendment, approved by Supreme Court Order No. 12-8300-015, effective for all cases pending or filed on or after June 16, 2012, modified the title of the rule and rewrote the rule to make stylistic changes, including the deletion of references to "inference". Compiler's notes. - This rule is similar to Rule 704 of the Federal Rules of Evidence. Use of medical testimony alone to support a criminal conviction. - Medical testimony to support causation in a criminal proceeding, as a matter of evidentiary foundation, should describe in detail the methodology utilized first to "rule-in" possible causes and then to "rule-out" all but one. Based on that process of elimination, described in detail to the jury, a doctor then should be able to offer an opinion on causation to a reasonable degree of medical probability which satisfies a minimum standard for admissibility. In a criminal trial, to meet a standard of proof beyond a reasonable doubt, prosecutors point to additional, non-opinion evidence, so that when considered cumulatively all the evidence is sufficient to support a verdict beyond a reasonable doubt. If, however, the prosecution is relying solely on medical opinion, it must go beyond the mere probable causation required for admissibility. The medical testimony should establish why the expert opinions are sufficient in themselves to establish guilt beyond a reasonable doubt. State v. Consaul, 2014-NMSC-030. Insufficient evidence of intentional child abuse based on medical testimony as to a "likely" cause. - Where defendant, who was responsible for watching the child and who was frustrated and irritated by the child's crying, bundled the child in a blanket tighter than usual and put the child face down on a pillow in the crib; the child became ill, was taken to a hospital, and died from an injury to the brain caused by lack of oxygen to the brain; the State's theory was that defendant intentionally suffocated the child; the expert medical testimony provided the only evidence that the child may have been suffocated and that the child had not been injured by other, noncriminal causes; and the State's medical experts testified that they suspected child abuse, that they could not rule out child abuse, and that they could not think of other explanations for the child's injuries, that child abuse was a likely cause, and that the child was likely suffocated, the evidence was insufficient to establish beyond a reasonable doubt that defendant intentionally suffocated the child. State v. Consaul, 2014-NMSC-030. Fact that expert opinion invades province of jury is not grounds for excluding the testimony. State v. Ellis, 1976-NMCA-036, 89 N.M. 194, 548 P.2d 1212, cert. denied, 89 N.M. 206, 549 P.2d 284. Evidence not inadmissible simply because it invades fact finder's province. - If the matter in dispute and to be decided involves causes and effects which are not within the knowledge or comprehension of the lay trier, expert testimony is admissible as an aid to the decisional process, and it is not rendered inadmissible simply because it invades the province of the trier of the critical issue. State v. Lopez, 1973-NMSC-041, 84 N.M. 805, 508 P.2d 1292. Not ground for exclusion if witness usurps jury's functions. - This rule is identical with Federal Rule 704 and therefore, though a witness may usurp the functions of the jury, or invade the jury's province, such is not necessarily a ground for excluding the witness's testimony. State v. Lopez, 1973-NMSC-041, 84 N.M. 805, 508 P.2d 1292. Ultimate fact opinions do not usurp because jury may disregard. - The testimony of witnesses, experts in their field, was upon the ultimate issue of fact of whether the safety device on the rifle was dangerous and defective or unsafe, and was properly the subject of expert testimony. Opinion evidence on an ultimate issue of fact does not attempt or have the power to usurp the functions of the jury, and therefore, this evidence could not usurp the jury's function because the jury may still reject these opinions and accept some other view. Lopez v. Heesen, 1961-NMSC-122, 69 N.M. 206, 365 P.2d 448. Admissible if within expertise even if concerns legal conclusion. - Where questions put to expert witness concerned subject matter which was within the expertise of the witness, his testimony was not inadmissible because it also concerned a legal conclusion. Herrera v. Fluor Utah, Inc., 1976-NMCA-045, 89 N.M. 245, 550 P.2d 144, cert. denied, 89 N.M. 321, 551 P.2d 1368. Whether doctor's treatment proper not request for ultimate issue opinion. - Question of whether or not doctor's treatment was within an accepted medical standard was a factual question requiring special scientific knowledge that could best be answered by the expert witnesses and did not constitute a request for an opinion on the ultimate issue. Crouch v. Most, 1967-NMSC-216, 78 N.M. 406, 432 P.2d 250. Opinion evidence is admissible on basis that it will aid the jury to understand the problem and lead them to the truth on the ultimate facts, and opinions may be disregarded by the jury in whole or in part. Lopez v. Heesen, 1961-NMSC-122, 69 N.M. 206, 365 P.2d 448. Experts may testify as to facts and opinions respecting facts. - Witnesses possessing requisite training, skill or knowledge, denominated "experts," may testify, not only to the facts, but to their opinions respecting the facts, so far as necessary to enlighten the jury and to enable it to come to a right verdict. Lopez v. Heesen, 1961-NMSC-122, 69 N.M. 206, 365 P.2d 448. Court cannot prevent defendant from calling expert because of nonexperts' testimony. - The trial court cannot properly prevent a defendant from calling experts in support of the defense on the basis that nonexperts have testified about the same issue. State v. Elliott, 1981-NMCA-111, 96 N.M. 798, 635 P.2d 1001. Expert's testimony did not exceed bounds of allowable expert testimony. - Where defendant was charged with trafficking, by possession with intent to distribute cocaine; a police officer, who testified as an expert in distinguishing between personal use and trafficking amounts in terms of crack cocaine; the officer's testimony was based on the officer's field experience and related to the decisions the officer would have made as an arresting officer based on the number of "rocks" of cocaine possessed by arrestees and the circumstances, including interviews with arrestees, that led the officer to believe that trafficking was the appropriate charge; and the officer did not relate those cases to defendant's case or offer an opinion as to whether defendant was trafficking cocaine, the witness's testimony was within the bounds of allowable expert testimony and to the extent the officer's testimony embraced the ultimate issue by educating the jury in regard to the factors that in the officer's experience warranted a trafficking charge, the testimony was admissible. State v. Rael-Gallegos, 2013-NMCA-092, cert. denied, 2013-NMCERT-009. Am. Jur. 2d, A.L.R. and C.J.S. references. - 31A Am. Jur. 2d Expert and Opinion Evidence § 1 et seq. Admissibility of opinion evidence as to the cause of an accident or occurrence, 38 A.L.R.2d 13. Safety of condition, place, or appliance as proper subject of expert or opinion evidence in tort actions, 62 A.L.R.2d 1426. Admissibility of opinion evidence as to cause of death, disease, or injury, 66 A.L.R.2d 1082. Necessity of expert testimony to show malpractice of architect, 3 A.L.R.4th 1023. Admissibility at criminal prosecution of expert testimony on battering parent syndrome, 43 A.L.R.4th 1203. Admissibility, in criminal prosecution, of expert opinion allegedly stating whether drugs were possessed with intent to distribute - state cases, 83 A.L.R.4th 629. Admissibility of expert opinion stating whether a particular knife was, or could have been, the weapon used in a crime, 83 A.L.R.4th 660. Necessity and admissibility, in federal trial, of expert or opinion testimony regarding use or reliability of hypnotically refreshed recollections, 50 A.L.R. Fed. 602. 23 C.J.S. Criminal Law § 1050 et seq.; 32 C.J.S. Evidence §§ 509, 511, 513.