N.M. R. Evid. 11-707
N.M. R. Evid. 11-707
Committee commentary. - The changes made to this rule in 2012 are intended to be stylistic only. There is no intent to change any result in any ruling on admissibility. However, in the process of making stylistic changes to the rule the committee felt it was important to clarify what needed to be recorded as part of the examination. It also addressed a criticism of the existing rule to require disclosure of all other polygraph examinations, and not just examinations made prior to the one being submitted.
[Adopted by Supreme Court Order No. 12-8300-015, effective for all cases pending or filed on or after June 16, 2012.]
ANNOTATIONS The 2015 amendment, approved by Supreme Court Order No. 15-8300-012, effective December 31, 2015, required that polygraph examiners possess the specified minimum qualifications prior to administering or interpreting a polygraph examination, removed the qualification that required polygraph examiners to complete twenty hours of continuing education in the field of polygraph examinations, and added the minimum qualification that requires polygraph examiners to possess a valid polygraph examiner license from New Mexico or from another jurisdiction with similar standards; in the introductory sentence of Paragraph B, after "minimum qualifications", added "prior to administering or interpreting a polygraph examination to be admitted as evidence"; and in Subparagraph B(2), deleted "successful completion of at least twenty (20) hours of continuing education in the field of polygraph examinations during the twelve (12) month period immediately prior to administering or interpreting the polygraph examination" and added the new language. 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, made stylistic changes; required that post-test interviews be recorded on a recording device; required proof of notice of intent to use polygraph evidence; required disclosure of other polygraph examinations; in Paragraph B, at the beginning of the introductory sentence, deleted "To be qualified as an expert witness on the truthfulness of a witness, a" and added the article "A" and after "must have", deleted "at least"; deleted former Subparagraph (2), which required the examiner to conduct or review the examination as provide in the rule, and in Subparagraph (2), after "immediately prior to", deleted "the date of" and added "administering or interpreting" and after "interpreting the", added "polygraph"; in Paragraph C, deleted the introductory sentence, which granted the trial judge discretion to admit evidence of a witness if an examination was performed by a qualified expert polygraph examiner pursuant to the rule, and added the current introductory sentence, in Subparagraph (1), after "examination was", deleted "conducted in accordance with the provisions of this rule" and added "administered by a qualified polygraph examiner", in Subparagraph (3), at the beginning of the sentence, deleted "prior to conducting the polygraph examination" and added the deleted phrase at the end of the sentence, and added Subparagraph (6); in Paragraph D, in the introductory sentence, after "evidence at trial", deleted "shall not" and added "must provide written notice", and after "district court may direct", deleted "serve upon the opposing party a written notice of such party's intention to use such evidence. The following reports shall be served with the notice" and added "Such notice must include these reports", in Subparagraph (3), after "video recording of the", added "entire examination, including the", after "pretest interview", deleted "actual testing", and after "pretest interview and", added "if conducted", and in Subparagraph (4), after "a list of any", deleted "prior" and added "other"; deleted former Paragraph E, which required the pretest interview and actual testing to be recorded on an audio or video recording device; and in Paragraph F, in the first sentence, after "polygraph examination" deleted "over objection", deleted the former first and second sentences, which authorized the court to compel a witness to take a second polygraph examination if a party has given notice of intent to use the original polygraph examination at trial and which provided that the opinions of other polygraph examiners were inadmissible if the witness refused to submit to a second polygraph examination, and added the second and third sentences. The 1990 amendment, effective on and after July 1, 1990, in Paragraph A, substituted " 'chart' " for " 'charts' " in Subparagraph (1); substituted "these rules" for "this rule" near the beginning of Paragraph C; in the first sentence of Paragraph D, substituted "thirty (30) days" for "ten (10) days" and "written notice of such party's intention" for "notice in writing of his intention"; and in Paragraph G, substituted "has given notice" for "has been given notice" near the middle of the second sentence. Error during opening statement. - The prosecutor committed error when he inappropriately mentioned defendant's refusal to submit to a polygraph examination during his opening statement in prosecution under Section 30-3A-3.1 NMSA 1978. State v. Gutierrez, 2005-NMCA-093, 138 N.M. 147, 117 P.3d 953, cert. granted, 2005-NMCERT-007. Expert opinions must be based on reasonable probability. - In ruling on the admissibility of expert testimony, the court must determine whether the scientific procedure which supports the testimony is based on a well-recognized scientific principle or discovery and whether it is capable of supporting opinions based on a reasonable probability rather than conjecture. State v. Martin, 1984-NMSC-077, 101 N.M. 595, 686 P.2d 937. Examiner's testimony allowed on weight of evidence issue. - Trial court did not abuse its discretion in allowing the testimony of a polygraph examiner into evidence notwithstanding an objection that not all of the pretest interview had been recorded, where the reliability of the examiner's testimony related to the weight to be given the evidence, not to the question of its admissibility. B & W Constr. Co. v. N.C. Ribble Co., 1987-NMSC-019, 105 N.M. 448, 734 P.2d 226. Determinations to be made by court. - Contested factual issues on the admissibility of scientific evidence, and of polygraph examinations in particular, are factual determinations to be made by the trial court. Baum v. Orosco, 1987-NMCA-102, 106 N.M. 265, 742 P.2d 1. The argument that since there were conflicting opinions regarding the reliability of polygraph evidence, the trial court abused its discretion in excluding the evidence was clearly specious. It is the role of the trial court to resolve such conflicts, and it is the very essence of discretion to make such a resolution and determination. Baum v. Orosco, 1987-NMCA-102, 106 N.M. 265, 742 P.2d 1. Discoverability dependent on intent to use at trial. - Polygraph test results are not discoverable by the state absent notice by defendant of an intent to use such evidence at trial. Tafoya v. Baca, 1985-NMSC-067, 103 N.M. 56, 702 P.2d 1001. Even though the state did not comply with the notice requirements of Subsection D, where defendant initially received notice of the state's intention to use polygraph evidence before the trial, and the trial court specifically found that he had an adequate opportunity to prepare rebuttal, the court did not abuse its discretion in admitting the evidence because the ruling was properly founded on the purposes of the rule and defendant suffered no undue surprise or prejudice. State v. Gonzales, 2000-NMSC-028, 129 N.M. 556, 11 P.3d 131. Prerequisites to admission of polygraph evidence. State v. Sanders, 1994-NMSC-043, 117 N.M. 452, 872 P.2d 870. Polygraph examination results are sufficiently reliable to be admitted under Rule 11-702 NMRA, provided the expert is qualified and the examination was conducted in accordance with this rule. Lee v. Martinez, 2004-NMSC-027, 136 N.M. 166, 96 P.3d 291. Examiner's qualifications. - This rule does not require that a polygrapher hold a medical degree or other advanced degree. State v. Harrison, 2000-NMSC-022, 129 N.M. 328, 7 P.3d 478. Examinee's background, health, education, etc. - Polygraph examiner's testimony was admissible where he had informed himself as to the examinee's background, health, and other relevant information, and he addressed defendant's assertions regarding the effect of physical conditions and medications on the examinee. State v. Harrison, 2000-NMSC-022, 129 N.M. 328, 7 P.3d 478. Polygraph examiner's opinion held inadmissible. - Where defendant suffered from painful eye irritation during polygraph examination and examiner lacked qualifications to properly evaluate the effect of such condition, examiner's opinion was inadmissible. State v. Anthony, 1983-NMCA-148, 100 N.M. 735, 676 P.2d 262. Polygraph examiner's testimony improperly excluded. - The trial court abused its discretion by not reviewing the pre-test interview or permitting defendant to make an offer of proof before excluding his polygraph's expert's testimony on the polygraph examination. State v. Aragon, 1993-NMCA-076, 116 N.M. 291, 861 P.2d 972. The exclusion of polygraph results for failure of the defendant to follow the notice requirements of this rule was error since the state administered the exam, knew of the results and that the defendant would call the polygraph administrator as a witness, and since the state had all the information that must be delivered with the written notice. State v. Baca, 1995-NMSC-045, 120 N.M. 383, 902 P.2d 65. Law reviews. - For article, "Survey of New Mexico Law, 1982-83: Evidence," see 14 N.M.L. Rev. 161 (1984). For annual survey of New Mexico Criminal Procedure, see 20 N.M.L. Rev. 285 (1990). Am. Jur. 2d, A.L.R. and C.J.S. references. - 29A Am. Jur. 2d Evidence § 1007 et seq.; 31A Am. Jur. 2d Expert and Opinion Evidence §§ 13 to 18. Power of court which appoints or employs expert witnesses to tax their fees as costs, 39 A.L.R.2d 1376. Trial court's appointment, in civil case, of expert witness, 95 A.L.R.2d 390. Competency of drug addict or user to identify suspect material as narcotic or controlled substance, 95 A.L.R.3d 978. Necessity of expert testimony to show malpractice of architect, 3 A.L.R.4th 1023. Admissibility of lie detector test results, or of offer or refusal to take test, in attorney disciplinary proceeding, 79 A.L.R.4th 576. Employee's action in tort against party administering polygraph, drug, or similar test at request of actual or prospective employer, 89 A.L.R.4th 527. 97 C.J.S. Witnesses §§ 3, 14.