N.M. R. Crim. P. Dist. Ct. 5-503
N.M. R. Crim. P. Dist. Ct. 5-503
Committee commentary. - This rule was derived from Rule 1.220(f) of the Florida Rules of Criminal Procedure. See Rule 15 of the Federal Rules of Criminal Procedure. Depositions are to be used in criminal cases only in exceptional circumstances. McGuinness v. State, 92 N.M. 441, 589 P.2d 1032 (1979); State v. Barela, 86 N.M. 104, 519 P.2d 1185 (Ct. App. 1974). See also R. Giron, McGuinness v. State, Limiting the Use of Depositions at Trial, 10 N.M.L. Rev. 207 (1979-1980).
"Statement" as used in Paragraph A of this rule includes any statement given by a witness, including a videotape or recorded statement. The committee considered whether the prosecution or defense could take the deposition of a codefendant who has been granted witness immunity, but left this matter to the supreme court. The committee is of the opinion that any statement made by a codefendant who will become a witness for the state is discoverable under Rule 5-501. See, for example, State v. Vigil, 87 N.M. 345, 533 P.2d 578 (Ct. App. 1975); State v. Herrera, 84 N.M. 365, 503 P.2d 648 (Ct. App. 1972). See also 5-501 for the definition of "statement". See also commentary to Rule 5-116 NMRA.
Paragraph A of this rule requires witnesses to cooperate in the giving of a statement. A witness may not refuse to give a statement because defense counsel or the prosecuting attorney may not be able to be present during the taking of the statement.
Paragraph B of this rule provides for the use of a deposition when the witness may be unable to attend the trial or a hearing.
The court of appeals has indicated that one of the purposes of a deposition is to enable the defense to impeach a witness on cross examination at trial. State v. Billington, 86 N.M. 44, 519 P.2d 140 (Ct. App. 1974). However, under Paragraph B of this rule, the right to take the deposition would appear to be limited to the situation where the person will be unable or unwilling to attend the trial or a hearing. See State v. Billington, supra, 86 N.M. at 48-49 (dissenting opinion) and State v. Blakely, 90 N.M. 744, 568 P.2d 270 (Ct. App. 1977).
The use of a deposition at trial by the state requires strict compliance with Paragraph N of this rule. See State v. Barela, supra; State v. Berry, 86 N.M. 138, 520 P.2d 558 (Ct. App. 1974); State v. De Santos, 91 N.M. 428, 575 P.2d 612 (Ct. App.), cert. denied, 91 N.M. 491, 596 P.2d 297 (1978). This is an exception to the hearsay rule. Paragraph N of this rule was revised in 1981 to make the New Mexico rules governing depositions consistent with Rule 15 of the Federal Rules of Criminal Procedure and to clarify the relationship between the Rules of Evidence and the Rules of Criminal Procedure governing the use of depositions. See Rule 11-802 NMRA and McGuinness v. State, supra. See also, Subparagraph (1) of Paragraph D of Rule 11-801 NMRA, California v. Green, 399 U.S. 149 (1970), and Paragraph A of Rule 11-804 NMRA. The Rules of Evidence relating to the admissibility of evidence are applicable to evidence admitted by deposition.
This rule was amended in 1982 to comply with Supreme Court Miscellaneous Order 8000, June 28, 1982, requiring that the record in all criminal cases be on audio recording devices. See Rule 22-303 NMRA. Because depositions may be taken in hospitals or out-of-state or by a video recorder, the committee did not require the use of audio recording devices approved by the administrative office of the courts. Since depositions are for use at trial, it is anticipated that in most cases the trial court will have the deposition taken by an official court reporter or tape monitor on an audio recording device approved by the administrative office of the courts.
ANNOTATIONS The 2005 amendment, effective September 15, 2005, deleted at the beginning of the second sentence in Paragraph A "If upon request of a party, a person other than the defendant refuses to give a statement" and added the last sentence of Paragraph A relating to service of subpoenas on all parties. The 2000 amendment, effective May 15, 2000 rewrote the rule to expand the deposition rule to permit the parties to stipulate to the taking of depositions. Procedural amendments were also made to track District Court Civil Rule 1-030 NMRA. The 1992 amendment, effective for cases filed in the district courts on or after August 1, 1992, made gender neutral substitutions throughout the rule; rewrote Paragraph A; made a stylistic change in Paragraph B; in Paragraph D, deleted "or compelled statement" from the end of the heading and following "any deposition" in the first sentence and deleted the former last sentence, relating to allowance by the court that the compelled statement be taken with only attorneys present; rewrote Paragraph F; substituted "deposition" for "examination" in the heading for Paragraph G; inserted "of deposition and in a subpoena" near the beginning of the first sentence in Paragraph H; in Paragraph J, substituted "of the witness" for "of the deponent and upon a showing that the examination is being conducted in bad faith or in such manner as unreasonably to annoy, embarrass or oppress the deponent or party" and added the third sentence; rewrote Paragraph M; and, in Paragraphs O and R, inserted "Depositions" in the headings. Compiler's notes. - Paragraphs A to C of this rule are similar to Rule 15(a) and (b) of the Federal Rules of Criminal Procedure. Paragraph N of this rule is similar to Rule 15(d) of the Federal Rules of Criminal Procedure. The Florida Rules of Criminal Procedure, referred to in the first sentence in the first paragraph of the committee commentary, were extensively revised in 1972. Rule 3.190(j), presently deals with depositions. Depositions of defendant are prohibited in habeas corpus proceedings. - Rule 5-503 NMRA precludes a compelled statement or deposition of a criminal defendant, including one who is in the post-conviction habeas corpus phase of a criminal proceeding. Allen v. LeMaster, 2012-NMSC-001, 267 P.3d 806. Where defendant filed a petition for habeas corpus alleging ineffective assistance of counsel; the district court ruled that defendant was subject to deposition on all issues related to the habeas corpus proceedings; when defendant refused to answer any questions, the district court ordered defendant to answer specified questions; and when defendant refused to answer the court-ordered questions, the district court dismissed defendant's petition as a sanction, it was improper for the district court to order defendant to answer questions at a deposition and to dismiss the habeas corpus petition or otherwise sanction defendant for defendant's refusal to answer the questions. Allen v. LeMaster, 2012-NMSC-001, 267 P.3d 806. Discovery of information about confidential informant's prior work. - Where police officers used a confidential informant to purchase methamphetamine; the confidential informant was the only eye witness to the alleged crime; the state's case rested on the veracity of the confidential informant; the defendant requested disclosure of information about the confidential informant's prior work as a confidential informant; the trial court held an in camera hearing to review the documents the defendant sought to discover; and the trial court ordered defense counsel not to disclose the information to any other person, the trial court did not abuse its discretion in ordering the state to produce the information. State v. Layne, 2008-NMCA-103, 144 N.M. 574, 189 P.3d 707. Defendant failed to justify need for military and medical records of victim. - Where defendant, charged with aggravated battery for shooting and injuring his son, sought disclosure of his son's military and mental health records to show that a fight in the military may have resulted in a less than honorable discharge from military service, that evidence of the fight could be admissible to show his son's propensity for violence, and that the records would be useful for impeachment purposes, the district court did not abuse its discretion in rejecting the request for records, because in self-defense cases, evidence of specific instances of a victim's prior violent conduct would not be admissible as propensity evidence of the victim's violent disposition, the discharge papers would not be admissible to impeach the victim because extrinsic evidence is not admissible to prove specific instances of a witness's conduct in order to attack or support the witness's character for truthfulness, and defendant did not justify the need for the victim's confidential medical history. Lastly, defendant failed to request an in camera inspection of any records before the district court. State v. Branch, 2018-NMCA-031, replacing 2016-NMCA-071, 387 P.3d 250, cert. denied. Burden on proponent of discovery to demonstrate materiality of records. - Records are normally discoverable if reasonably calculated to lead to the discovery of admissible evidence, and while records need not be admissible to be discoverable, a proponent of discovery may still be required to provide a reasonable basis on which to believe that it is likely the records contain material information. State v. Branch, 2016-NMCA-071, 387 P.3d 250, replaced by 2018-NMCA-031, and cert. quashed. Where defendant, charged with aggravated battery with a deadly weapon for shooting his son, requested a court order authorizing the release of the victim's military discharge paperwork, the district court did not abuse its discretion in declining to issue an order authorizing production of the documents where defendant failed to justify the need for those records and failed to request an in camera inspection of any records before the district court. State v. Branch, 2016-NMCA-071, 387 P.3d 250, replaced by 2018-NMCA-031, and cert. quashed. Police officer witnesses not under legal process may refuse to be interviewed and may dictate the terms of the interview sought by defense counsel. They have no obligation to subject themselves to trick questions or hassling by defense counsel in voluntary interviews, and the police department may properly adopt a policy that officers should refuse to be interviewed by defense counsel except in the presence of an attorney for the prosecution. State v. Williams, 1978-NMCA-065, 91 N.M. 795, 581 P.2d 1290. Defendant has no constitutional right to depose victim in a criminal case; the right exists solely under this rule. State v. Herrera, 1978-NMCA-048, 92 N.M. 7, 582 P.2d 384, cert. denied, 91 N.M. 751, 580 P.2d 972. Driver license revocation proceedings. - There is no automatic due process right to take prehearing depositions in driver license revocation cases. Dente v. State Taxation & Revenue Dep't, 1997-NMCA-099, 124 N.M. 93, 946 P.2d 1104. Reasonable limitations on questions asked at deposition do not deprive defendant of due process. State v. Herrera, 1978-NMCA-048, 92 N.M. 7, 582 P.2d 384, cert. denied, 91 N.M. 751, 580 P.2d 972. Scope of authority to take depositions. - In criminal cases the trial court has no authority, apart from this rule, to allow the taking of depositions for their use at trial. State v. Berry, 1974-NMCA-018,86 N.M. 138, 520 P.2d 558. 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. Where deposition not admissible. - As there was no showing that the presence of a witness who was out of the state could not be secured by subpoena or other lawful means, then his deposition is not admissible under this rule. State v. Berry, 1974-NMCA-018, 86 N.M. 138, 520 P.2d 558. Generally as to use of depositions. - While depositions are allowable in criminal cases, the circumstances permitting their use must be exceptional, and the necessity of their use at trial must be clearly established by the prosecution. McGuinness v. State, 1979-NMSC-006, 92 N.M. 441, 589 P.2d 1032. Use of deposition by state at trial requires strict compliance with Subdivision (n) (see now Paragraph N). McGuinness v. State, 1979-NMSC-006, 92 N.M. 441, 589 P.2d 1032; State v. Martinez, 1981-NMSC-005, 95 N.M. 445, 623 P.2d 565, overruled on other grounds by Fuson v. State, 1987-NMSC-034, 105 N.M. 632, 735 P.2d 1138. There must be strict compliance with Subdivision (n) (see now Paragraph N). Where deposition of absent witness was admitted absent any showing as to whereabouts of the witness at time of trial, whether he was unable to attend because of illness or infirmity, or whether he was in or out of state, and where district attorney did not attempt to procure his attendance at trial by subpoena, defendant's federal constitutional right to confront witnesses was violated and such admission constituted reversible error. State v. Barela, 1974-NMCA-016, 86 N.M. 104, 519 P.2d 1185. Burden is upon the state to prove the unavailability of its witness. State v. Ewing, 1982-NMSC-003, 97 N.M. 235, 638 P.2d 1080, aff'd in part, rev'd on other grounds, 1982-NMCA-030, 97 N.M. 484, 641 P.2d 515. Court considers total circumstances in determining state's diligence. - In determining whether the state was diligent in attempting to produce a witness for trial, the trial court may take into consideration the totality of the circumstances. State v. Ewing, 1982-NMSC-003, 97 N.M. 235, 638 P.2d 1080, aff'd in part, rev'd on other grounds, 1982-NMCA-030, 97 N.M. 484, 641 P.2d 515. Unavailability of witness due to claim of constitutional privilege did not render deposition admissible. - Where a witness is excused from testifying on the ground that he cannot do so without incriminating himself, his deposition is not thereby rendered admissible. McGuinness v. State, 1979-NMSC-006, 92 N.M. 441, 589 P.2d 1032. Once a witness is permitted to claim his privilege against self-incrimination, he becomes unavailable as a witness under Rule 804, N.M.R. Evid. (see now Rule 11-804 NMRA), and thus his deposition would not be excluded at trial because of the hearsay rule, but that fact does not authorize admission of the deposition if it is excludable because of this rule. McGuinness v. State, 1979-NMSC-006, 92 N.M. 441, 589 P.2d 1032. Sixth amendment right of confrontation not violated by admission of deposition of uncooperative unavailable witness. Ewing v. Winans, 749 F.2d 607 (10th Cir. 1984). Where principal witness is unavailable because she is ill and infirm, it is not error for the trial judge to take the totality of the circumstances into consideration, including the witness' advanced age and the condition of her health, to admit her deposition at trial. State v. Vialpando, 1979-NMCA-083, 93 N.M. 289, 599 P.2d 1086, cert. denied, 93 N.M. 172, 598 P.2d 215. Deposition for civil suit not admissible. - A deposition of the victim for purposes of a civil suit cannot be used in a criminal proceeding when the victim's spouse is being cross-examined. State v. Cordova, 1983-NMCA-144, 100 N.M. 643, 674 P.2d 533. Denial of continuance to allow deposition. - A judge did not abuse his discretion by refusing to order a continuance to allow the defendant to depose a reporter who interviewed the victim and to compel her to disclose her interview notes, since defense counsel had decided not to proceed with a scheduled deposition of the reporter a few days before trial and failed to call the reporter as a witness at trial. State v. Bobbin, 1985-NMCA-089, 103 N.M. 375, 707 P.2d 1185. No error in continuing trial where no abuse of discretion and expert's deposition admitted. - Defendant's contention that the trial court erred in not continuing the trial to a date when an expert witness could testify in person was without merit where there was nothing showing an abuse of discretion in denying a continuance and a deposition of the expert was properly admitted at trial. State v. De Santos, 1978-NMCA-012, 91 N.M. 428, 575 P.2d 612. Law reviews. - For comment, "McGuinness v. State: Limiting the Use of Depositions at Trial," see 10 N.M.L. Rev. 207 (1979-1980). For annual survey of New Mexico law relating to criminal law, see 12 N.M.L. Rev. 229 (1982). For annual survey of New Mexico law relating to criminal procedure, see 12 N.M.L. Rev. 271 (1982). For annual survey of New Mexico law relating to evidence, see 12 N.M.L. Rev. 379 (1982). Am. Jur. 2d, A.L.R. and C.J.S. references. - 21 Am. Jur. 2d Criminal Law § 1177; 23 Am. Jur. 2d Depositions and Discovery § 108. Admissibility of deposition of child of tender years, 30 A.L.R.2d 771. Sufficiency of showing of grounds for admission of deposition in criminal case, 44 A.L.R.2d 768. Construction of statute or rule admitting in evidence deposition of witness absent or distant from place of trial, 94 A.L.R.2d 1172. Admissibility in evidence of deposition as against one not a party at time of its taking, 4 A.L.R.3d 1075. Disqualification of attorney, otherwise qualified, to take oath or acknowledgment from client, 21 A.L.R.3d 483. Pretrial testimony or disclosure on discovery by party to personal injury action as to nature of injuries or treatment as waiver of physician-patient privilege, 25 A.L.R.3d 1401. Accused's right to depose prospective witnesses before trial in state court, 2 A.L.R.4th 704. Propriety of state court's grant or denial of application for pre-action production or inspection of documents, persons, or other evidence, 12 A.L.R.5th 577. Accused's right to depose prospective witnesses before trial in federal court under Rule 15(a) of Federal Rules of Criminal Procedure, 43 A.L.R. Fed. 865. Effect on federal criminal proceeding of unavailability to defendant of alien witness through deportation or other government action, 56 A.L.R. Fed. 698. Right to perpetuation of testimony under Rule 27 of Federal Rules of Civil Procedure, 60 A.L.R. Fed. 924. Use, in federal criminal prosecution, of deposition of absent witness taken in foreign country, as affected by Federal Rule of Criminal Procedure 15(b) and (d) requiring presence of accused and that deposition be taken in manner provided in civil actions, 105 A.L.R. Fed. 537.