N.M. R. Child. Ct. 10-341

As amended through August 23, 2024

Rule 10-341 - Witness immunity

A.Issuance of order. If a person has been or may be called to testify or to produce a record, document or other object in an abuse or neglect, termination of parental rights or guardianship proceeding in the children's court, the judge before whom the proceeding is pending may upon the written application for immunity by a party, or upon the court's own motion, issue a written order requiring the person to testify or to produce the record, document or other object notwithstanding the person's privilege against self-incrimination. The applicant shall serve the district attorney with a copy of the application for immunity and notice of hearing on the application.

B.Application. The court may grant the application and issue a written order pursuant to this rule if it finds:

(1) the testimony, or the record, document or other object may be necessary to the public interest;

(2) the person has refused or is likely to refuse to testify or to produce the record, document or other object on the basis of the person's privilege against self-incrimination; and

(3) the district attorney was properly served.

C.Extent of immunity. Evidence compelled under an order granted pursuant to this rule or any information directly or indirectly derived from such evidence may not be used against the person in any criminal case except as provided by Rule 11-413 NMRA of the Rules of Evidence.

N.M. R. Child. Ct. 10-341

Adopted effective 2/1/1982, Court Rule 64 NMSAA 1978; Rule 10-110 SCRA 1986; Rule 10-110 NMRA; as amended effective 3/20/2000; Rule 10-110 NMRA, recompiled as Rule 10-341 NMRA by Supreme Court Order No. 08-8300-042, effective 1/15/2009; as amended by Supreme Court Order No. 12-8300-024, effective for all cases filed or pending on or after1/7/2013.

Committee commentary. - Prior to the New Mexico Supreme Court's decision in State v. Belanger, 2009-NMSC-025, & 35, 146 N.M. 357, 210 P.3d 783, the court could only issue an order granting use immunity upon application of the state. Belanger removed that restriction, and this rule has been revised, consistent with the revisions made to Rule 5-116 NMRA. For a discussion of the balancing of interests required by the district court when granting use immunity in the criminal context, see Belanger, 2009-NMSC-025, ¶ 38.

[Adopted by Supreme Court Order No. 12-8300-024, effective for all cases filed or pending on or after January 7, 2013.]

ANNOTATIONS The 2012 amendment, approved by Supreme Court Order No. 12-8300-024, effective January 7, 2013, permitted a party or the court to apply for immunity; required service of an application upon the district attorney; in Paragraph A, in the first sentence, after "application for immunity by", deleted "the children's court attorney" and added "a party, or upon the court's own motion" and in the second sentence, at the beginning of the sentence, after "The", deleted "department" and added "applicant"; and added Subparagraph (3) of Paragraph B. The 2000 amendment, effective for cases filed in the Children's Court on and after March 20, 2000, in Paragraph A, substituted the enumerated types of proceedings in the children's court for "an official proceeding" in the first sentence and added the last sentence; added Paragraph C; and made gender neutral changes. Recompilations. - Pursuant to Supreme Court Order No. 08-8300-042, Rule 10-110 NMRA was recompiled as Rule 10-341 NMRA, effective January 15, 2009.