N.M. R. Crim. P. Dist. Ct. 5-503

As amended through November 15, 2023
Rule 5-503 - Depositions; statements
A.Statements. Any person, other than the defendant, with information which is subject to discovery shall give a statement. A party may obtain the statement of the person by serving a written "notice of statement" upon the person to be examined and upon each party not less than five (5) days before the date scheduled for the statement. The notice shall state the time and place for taking of the statement. A subpoena may also be served to secure the presence of the person to be examined or the materials to be examined during the statement. If a subpoena is served to secure a witness or materials, a copy of the subpoena shall be served upon each party.
B.Depositions; when allowed. A deposition may be taken pursuant to this rule upon:
(1) agreement of the parties; or
(2) order of the court at any time after the filing of the indictment or information or complaint in the district court, upon a showing that it is necessary to take the person's deposition to prevent injustice.
C.Scope of discovery. Unless otherwise limited by order of the court, parties may obtain discovery regarding any matter, not privileged, which is relevant to the offense charged or the defense of the accused person, including the existence, description, nature, custody, condition and location of any books, documents or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.
D.Time and place of deposition. Counsel must make reasonable efforts to confer in good faith regarding scheduling of a deposition or statement before serving a notice of deposition or a notice of statement. Unless agreed to by the parties, any deposition allowed under this rule shall be taken at such time and place as ordered by the court. The attendance of witnesses at depositions may be compelled by subpoena as provided in these rules.
E.Notice of examination: general requirements; special notice; notice of non-appearance; nonstenographic recording; production of documents and things; deposition of organization; deposition by telephone.
(1) A party taking the deposition of any person upon oral examination pursuant to court order shall give at least ten (10) days notice in writing to every other party to the action. The notice shall state the time and place for taking the deposition and the name and address of each person to be examined, if known, and, if the name is not known, a general description sufficient to identify the person or the particular class or group to which the person belongs. If a subpoena duces tecum is to be served on the person to be examined, the designation of the materials to be produced as set forth in the subpoena shall be attached to or included in the notice.
(2) The party taking the deposition shall state in the notice the method by which the testimony shall be recorded. Unless the court orders otherwise, it may be recorded by sound, sound-and-visual or stenographic means, and the party taking the deposition shall bear the cost of the recording. Any party may arrange for a transcription or copy of the deposition or statement to be made from the recording of a deposition or statement at the party's expense.
(3) With prior notice to the deponent and other parties, any party may designate another method to record the deponent's testimony in addition to the method specified by the person taking the deposition. The additional record or transcript shall be made at that party's expense unless the court otherwise orders. If the deposition is taken by an official court reporter, the official transcript shall be the transcript prepared by the official court reporter.
(4) Unless otherwise agreed by the parties, a deposition shall be conducted before an officer appointed or designated under Rule 5-503.1 NMRA and shall begin with a statement on the record by the officer that includes:
(a) the officer's name and business address;
(b) the date, time, and place of the deposition;
(c) the name of the deponent;
(d) the administration of the oath or affirmation to the deponent; and
(e) an identification of all persons present. If the deposition is recorded other than stenographically, the officer shall repeat items (a) through (c) at the beginning of each unit of recorded tape or other recording medium. The appearance or demeanor of deponents or attorneys shall not be distorted through camera or sound-recording techniques. At the end of the deposition, the officer shall state on the record that the deposition is complete and shall set forth any stipulations made by counsel concerning the custody of the transcript or recording and the exhibits, or concerning other pertinent matters.
(5) A party may, in the party's notice and in a subpoena, name as the deponent a public or private corporation or a partnership or association or governmental agency and describe with reasonable particularity the matters on which examination is requested. In that event, the organization so named shall designate one or more officers, directors or managing agents or other persons who consent to testify on its behalf, and may set forth, for each person designated, the matters on which the person will testify. A subpoena shall advise a non-party organization of its duty to make such a designation. The persons so designated shall testify as to matters known or reasonably available to the organization. This subparagraph does not preclude taking a deposition by any other procedure authorized in these rules.
(6) The parties may agree in writing or the court may, upon motion, order that a deposition be taken by telephone or other remote electronic means. For the purposes of this rule and Rule 5-503.1(A) NMRA, 5-503.2(A)(1) NMRA and 5-503.2(B)(1) NMRA, a deposition taken by such means is taken in the county and at a place where the witness is to answer questions. The officer taking the deposition must be physically present with the witness.
F.Depositions; examination and cross-examination; record of examination; oath; objections. Examination and cross-examination of witnesses in depositions may proceed as permitted at trial under the New Mexico Rules of Evidence, except Rule 11-103 NMRA and Rule 11-615 NMRA. The officer before whom the deposition is to be taken shall put the witness on oath or affirmation and shall personally, or by someone acting under the officer's direction and in the officer's presence, record the testimony of the witness. The testimony shall be taken stenographically or recorded by any other method authorized by Paragraph D(2) of this rule. All objections made at the time of the examination to the qualifications of the officer taking the deposition, to the manner of taking it, to the evidence presented, to the conduct of any party, or to any other aspect of the proceedings, shall be noted by the officer upon the record of the deposition; but the examination shall proceed, with the testimony being taken subject to the objections. In lieu of participating in the oral examination, parties may serve written questions in a sealed envelope on the party taking the deposition and the party taking the deposition shall transmit them to the officer, who shall propound them to the witness and record the answers verbatim.
G.Statements; depositions; motion to terminate or limit examination. At any time during a deposition or statement, on motion of a party, the witness or 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 witness or the deponent, the court in which the action is pending, or the court in the county where the deposition or statement is being taken, may order the examination to cease or may limit the scope and manner of the taking of the deposition or statement pursuant to Rule 5-507 NMRA. If the order made terminates the examination, it shall be resumed thereafter only upon the order of the court in which the action is pending. Upon demand of the objecting party, the witness or the deponent, the taking of the deposition or statement shall be suspended for the time necessary to make a motion for an order.
H.Depositions; review by witness; changes; signing. If requested by the deponent or a party before completion of the deposition, the deponent shall have thirty (30) days after being notified by the officer that the transcript or recording is available in which to review the transcript or recording and, if there are changes in form or substance, to sign a statement reciting such changes and the reasons given by the deponent for making them. The officer shall indicate in the certificate prescribed by Paragraph I(1) of this rule whether any review was requested and, if so, shall append any changes made by the deponent during the period allowed.
I.Certification by officer; exhibits; copies; notice of transcription.
(1) The officer shall certify on the deposition that the witness was duly sworn by the officer and that the deposition is a true record of the testimony given by the witness. If the deposition is transcribed, the officer shall provide the original of the deposition or statement to the party ordering the transcription and shall give notice thereof to all parties. The party receiving the original shall maintain it, without alteration, until final disposition of the case in which it was taken or other order of the court. Documents and things produced for inspection during the examination of the witness shall, upon the request of a party, be marked for identification and annexed to and returned with the deposition, and may be inspected and copied by any party, except that if the person producing the materials desires to retain them the person may:
(a) offer copies to be marked for identification and annexed to the deposition or statement and to serve thereafter as originals, if the person affords to all parties fair opportunity to verify the copies by comparison with the originals; or
(b) offer the originals to be marked for identification, after giving to each party an opportunity to inspect and copy them, in which event the materials may then be used in the same manner as if annexed to the deposition. Any party may move for an order that the original be annexed to and returned with the deposition to the court, pending final disposition of the case.
(2) Upon payment of reasonable charges therefor, the officer shall furnish a copy of the transcript or other recording of the deposition to any party or to the deponent.
(3) Any party filing a deposition shall give prompt notice of its filing to all other parties.
J.Final disposition of depositions. The original deposition may be destroyed as provided in the judicial retention of records schedule.

N.M. R. Crim. P. Dist. Ct. 5-503

As amended, effective July 1, 1973; July 1, 1980; September 1, 1981; October 1, 1983; February 1, 1991; August 1, 1992; May 15, 2000; as amended by Supreme Court Order No. 05-8300-013, effective September 15, 2005.

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.