N.M. R. Crim. P. Dist. Ct. 5-502
Committee commentary. - This rule was derived from Ruleof the Federal Rules of Criminal Procedure. See generally, 62 F.R.D. 271, 306, 314-16 (1974); 48 F.R.D. 553, 607-09 (1970). Unlike its federal counterpart, this rule requires an exchange of information without a written request.
Under Subparagraph (2) of Paragraph A of this rule, the defense has a duty to disclose to the state any reports prepared by experts in connection with the defendant's case which the defendant intends to introduce in evidence at the trial or which were prepared by a witness whom the defendant intends to call at trial if the results or reports relate to his testimony.
Although the defendant may not be compelled to produce evidence if it would result in a violation of his privilege against self-incrimination, this rule has been upheld as not contravening the privilege against self-incrimination or the right to due process of law guaranteed by the Fifth Amendment to the United States Constitution. Gray v. Sanchez, 86 N.M. 146, 520 P.2d 1091 (1974). See also, Jones v. Superior Court, 58 Cal.2d 56, 22 Cal. Rptr. 879, 372 P.2d 919 (1962); Prudhomme v. Superior Court, 2 Cal.3d 320, 85 Cal. Rptr. 129, 466 P.2d 673 (1970); Williams v. Florida, 399 U.S. 78, 90 S. Ct. 1893, 26 L. Ed. 2d 466 (1970); Wardius v. Oregon, 412 U.S. 470 (1973); United States v. Nobles, 422 U.S. 232, 955 S. Ct. 2160, 45 L. Ed. 2d 141 (1975).
In 2011, a new Paragraph D was added to provide an explicit mechanism for a defendant to obtain information and evidence potentially necessary for the defense, while maintaining the confidentiality of the theory of the defense concerning the information and evidence. The needed information and evidence may include various forensic or other interviews, evaluations, or testing of the defendant. Requiring the defendant to make a request in open court may have the practical effect of disclosing the nature of the defense prior to the time it may otherwise have to be disclosed under Paragraph A of the rule. An ex parte proceeding conducted pursuant to this rule does not violate the prohibitions against ex parte communications set forth in the Code of Judicial Conduct.
A new Paragraph E also was added in 2011 to allow a defendant to designate a potential expert witness, and then to protect from disclosure information given to that potential expert as well as opinions and reports generated by that potential expert. If the defendant lists the designated potential expert in the witness list required by Subparagraph (A)(3) or calls the potential expert as a witness at trial, then the items described in Subparagraph (A)(2) must be disclosed; if the defendant does not include the designated potential expert in the witness list required under Subparagraph (A)(3), the matters concerning the designated potential expert remain confidential. The term "the case" in Paragraph E is used to make clear that the person designated as a potential expert is not off limits to any party with regard to any other case or matter.
See Paragraph F of RuleNMRA for the definition of "statement" as used in this rule.
[As amended by Supreme Court Order No. 11-8300-049, effective for cases filed or pending on or after February 6, 2012; as amended by Supreme Court Order No. 15-8300-010, effective for all cases pending or filed on or after December 31, 2015.]
ANNOTATIONS The 2015 amendment, approved by Supreme Court Order No. 15-8300-010, effective December 31, 2015, amended the time by when a defendant must disclose information to the state, placed a duty on defendant to identify, in the defense witness list, any witness that the defense intends to call at trial that will provide expert testimony and to indicate the subject area on which the expert witness will testify; in the introductory sentence of Paragraph A, after "waiver of arraignment", deleted "or not less than ten (10) days before trial, whichever date occurs earlier"; in Subparagraph A(3), after "intends to call at the trial", added "identifying any witnesses that will provide expert testimony and indicating the subject area in which they will testify"; and in the committee commentary, added the second paragraph. The 2011 amendment, approved by Supreme Court Order No. 11-8300-049, effective for cases filed or pending on or after February 6, 2012, provided a procedure for a defendant in custody to obtain transport for evaluation, testing or interviewing without disclosure to the prosecution and prohibited the prosecution from interviewing or obtaining opinions or documents from a potential defense expert witness until and unless the defendant has filed notice that the witness is a potential expert witness; added new Paragraphs D and E; relettered the first paragraph of former Paragraph D as Paragraph F; and relettered the last paragraph of former Paragraph D as Paragraph G. Compiler's notes. - Paragraph C of this rule is similar to Rule 16(b)(2) of the Federal Rules of Criminal Procedure.
For disclosure by government, see Rule 5-501 NMRA. For forms on certificate and supplemental certificate of disclosure of information, see Rules 9-412 and 9-413 NMRA. Defendant has a duty to disclose demonstrative evidence. State v. Ruiz, 2007-NMCA-014, 141 N.M. 53, 150 P.3d 1003, cert. denied, 2007-NMCERT-001. District court did not err in compelling defense to produce evidence originally disclosed by the prosecution. - Where prior to defendant's trial for DWI, the state requested that the defense counsel return a copy of the officer's dashcam video which the state had previously provided to the defense because the state had lost or misplaced its only copy of the video, the district court did not abuse its discretion in compelling defendant to return to the state a copy of the video the state had originally produced, because the video at issue was the state's evidence, produced in compliance with its discovery obligations, and there was no constitutional, statutory, or common law prohibition on disclosure. State v. Salazar, 2019-NMCA-021, cert. denied. Work product. - The criminal procedure rules expressly protect some defense counsel work product but do not expressly protect a prosecutor's work product. State v. Blackmer, 2005-NMSC-008, 137 N.M. 258, 110 P.3d 66. Material that is opinion work product should have the same protection in criminal actions as in civil actions; that material enjoys nearly absolute immunity. State v. Blackmer, 2005-NMSC-008, 137 N.M. 258, 110 P.3d 66. Constitutionality of rule. - This rule is not an unconstitutional violation of U.S. Const., amend. V. Gray v. Sanchez, 1974-NMSC-011, 86 N.M. 146, 520 P.2d 1091. Constitutional to permit disclosure of physician's analysis of polygraph results. - Disclosure of analysis and conclusions of doctor appointed on behalf of defendant to examine results of a polygraph examination would not deny defendant due process, interfere with his right to put on a defense, deny equal protection of the law nor violate his privilege against self-incrimination. State v. Gallegos, 1978-NMCA-114, 92 N.M. 370, 588 P.2d 1045, cert. denied, 92 N.M. 353, 588 P.2d 554. Polygraph test results not discoverable if not to be used 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. State may observe tests, conduct own tests. - While a defendant is not required to disclose test results not intended to be introduced at trial, this does not mean that the state cannot observe the testing or conduct its own independent tests. State v. Baca, 1993-NMCA-051, 115 N.M. 536, 854 P.2d 363). Disclosure of transcripts of pre-trial interviews. - As part of discovery, a trial court may enter an order compelling a defendant to turn over to the state transcripts of pre-trial interviews with witnesses for the prosecution. State v. Stills, 1998-NMSC-009, 125 N.M. 66, 957 P.2d 51. Scope of duty to disclose. - The state has a duty to disclose material evidence favorable to the defendant, of which it has knowledge. The defendant also has a corresponding duty to make available to the prosecution his or her list of witnesses and such documents and papers and reports which he or she intends to use as evidence at trial, and there shall be a continuing duty of disclosure on both of the parties. State v. Stephens, 1982-NMSC-128, 99 N.M. 32, 653 P.2d 863. Limiting expert testimony. - A trial court may limit the issues on which an expert witness may testify when the defendant indicates in discovery that the expert will only testify as to certain issues and does not inform the court that the witness will testify as to other issues until after the state's expert witnesses have testified. Limiting such testimony is proper when the court finds that defense counsel is engaging in delaying tactics and that limiting the testimony is necessary to protect the integrity of the judicial system and the efficient administration of justice. State v. Stills, 1998-NMSC-009, 125 N.M. 66, 957 P.2d 51. Defendant had burden of establishing lawyer-client privilege as to doctor's report. - Defendant objecting to discovery of a doctor's report, prepared for defendant's counsel under court order, has the burden of establishing the existence of the lawyer-client privilege. State v. Gallegos, 1978-NMCA-114, 92 N.M. 370, 588 P.2d 1045, cert. denied, 92 N.M. 353, 588 P.2d 554. Disclosure of witnesses. - Where the defendant failed to furnish the state a list of the names and addresses of the witnesses he intended to call at the trial as he had been ordered to do by the trial court pursuant to Subdivision (b) (see now Paragraph A(3)), the state objected to calling these witnesses and the trial court granted the state's motion, reserving reconsideration of the matter until the district attorney had spoken to the witnesses, but, without explanation, defendant did not call any of these witnesses to the stand, it was held that he voluntarily abandoned any further effort to have these witnesses appear and that he could not be heard on appeal to complain of error in their exclusion. State v. Bojorquez, 1975-NMCA-075, 88 N.M. 154, 538 P.2d 796, cert. denied, 88 N.M. 318, 540 P.2d 248. Effect of omitting reference to limitation provisions from disclosure order. - Failure to copy into order pertaining to disclosure of evidence and witnesses a reference to Subdivision (c) (see now Paragraph C), pertaining to information not subject to disclosure, does not render the order beyond the jurisdiction of the court. Gray v. Sanchez, 1974-NMSC-011, 86 N.M. 146, 520 P.2d 1091. Absent legal authorization, judge lacks authority to order production of handwriting exemplars on pain of contempt, prior to arrest or charge. Sanchez v. Attorney Gen., 1979-NMCA-081, 93 N.M. 210, 598 P.2d 1170. Hypnosis of witness must be disclosed. - It is incumbent upon either the prosecution or defense to disclose to opposing counsel that a witness called by a party has undergone hypnosis in order to facilitate memory recall. State v. Beachum, 1981-NMCA-137, 97 N.M. 682, 643 P.2d 246. Voluntary disclosure of the results of a medical examination constituted a waiver of the defendant's right against forced disclosure and also destroyed any privileges claimed by the defense. State v. Jackson, 1982-NMSC-022, 97 N.M. 467, 641 P.2d 498. Where an attorney's notes concerning a witness' statement were used in an effort to impeach the witness, such notes were no longer shielded by the work-product doctrine and the trial court could properly require the disclosure of the notes under Rule 613(a), N.M.R. Evid. (see now Rule 11-613 NMRA). State v. Turner, 1981-NMCA-144, 97 N.M. 575, 642 P.2d 178. Am. Jur. 2d, A.L.R. and C.J.S. references. - 21 Am. Jur. 2d Criminal Law §§ 1258 to 1262. Sanctions against defense in criminal case for failure to comply with discovery requirements, 9 A.L.R.4th 837. Right of prosecution to discovery of case-related notes, statements, and reports - state cases, 23 A.L.R.4th 799. What is "oral statement" of accused subject to disclosure by government under Rule 16(a)(1)(A), Federal Rules of Criminal Procedure, 39 A.L.R. Fed. 432. Right of indigent defendant under Rule 17(b) of the Federal Rules of Criminal Procedure to appearance of witnesses necessary to adequate defense, 42 A.L.R. Fed. 233. 22A C.J.S. Criminal Law §§ 508 et seq., 524 et seq.