N.M. R. Crim. P. Dist. Ct. 5-505

As amended through November 15, 2023
Rule 5-505 - Continuing duty to disclose
A.Additional material or witnesses. If, subsequent to compliance with Rule 5-501 or 5-502, and prior to or during trial, a party discovers additional material or witnesses which he would have been under a duty to produce or disclose at the time of such previous compliance if it were then known to the party, he shall promptly give written notice to the other party or the party's attorney of the existence of the additional material or witnesses.
B.Failure to comply. If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this rule or with an order issued pursuant to this rule, the court may order such party to permit the discovery or inspection of materials not previously disclosed, grant a continuance, or prohibit the party from calling a witness not disclosed, or introducing in evidence the material not disclosed, or it may enter such other order as it deems appropriate under the circumstances, including but not limited to holding an attorney in contempt of court pursuant to Rule 5-112 of these rules.

N.M. R. Crim. P. Dist. Ct. 5-505

Committee commentary. - This rule was derived from Rule 16, Part III of the Colorado Rules of Criminal Procedure and Rules 16(c) and (d)(2) of the Federal Rules of Criminal Procedure. See 62 F.R.D. 271, 306-07, 316-17 (1974).

In State v. Billington, 86 N.M. 44, 519 P.2d 140 (Ct. App. 1974), the court held that the violation of this rule by the state entitled the defendant to a continuance. The court believed that the defendant had a right to take the deposition of a witness whose name was not given under Subparagraph (5) of Paragraph A of Rule 5-501 NMRA or seek other discovery for trial preparation and, therefore, a continuance was required as a matter of law.

In State v. Quintana, 86 N.M. 666, 526 P.2d 808 (Ct. App.), cert. denied, 86 N.M. 656, 526 P.2d 798 (1974), the opinion of the court states that an alleged violation of this rule could not be raised on appeal where the defendant did not object to the introduction of evidence on the grounds that this rule was violated. The concurring opinion emphasized that on appeal the defendant had to show that some prejudice resulted from the state's failure to comply with the discovery rules.

ANNOTATIONS 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. Dismissal may be appropriate order. - Upon failure to obey a discovery order, the court may enter such order as is appropriate under the circumstances, and dismissal may be an appropriate order. State v. Doe, 1978-NMCA-124, 92 N.M. 354, 588 P.2d 555. Dismissal is not proper remedy for prosecutor's interference with defendant's discovery attempts; it is even less appropriate when the record fails to disclose any discovery violations. State v. Smallwood, 1980-NMCA-037, 94 N.M. 225, 608 P.2d 537. Court conducts in camera hearing to determine whether eyewitness' identity subject to disclosure. - Where an informer's testimony, pursuant to Rule 510(c), R. Evid. (see now Rule 11-501 NMRA), discloses the identity of a possible eyewitness to a crime, the trial court, under the disclosure requirements of Rule 27(e) (see now Rule 5-501 NMRA) and this rule, should conduct an in camera hearing to determine, first, whether the possible eyewitness would be able to give testimony that is relevant and helpful to the defense of the accused or is necessary to a fair determination of the defendant's guilt or innocence, and, second, whether disclosure would subject the possible eyewitness to a substantial risk of harm outweighing any usefulness of the disclosure to defense counsel. State v. Gallegos, 1981-NMCA-047, 96 N.M. 54, 627 P.2d 1253, overruled on other grounds by State v. Martin, 1984-NMSC-077, 101 N.M. 595, 686 P.2d 937. Disclosing name of witness one day before trial. - Defendant was entitled as a matter of law to a continuance to obtain a deposition where state, after having provided defendant with a supposedly complete list of witnesses to appear at trial, sought, over defendant's objections, to add an important witness whose name the state had disclosed to the defendant's attorney by phone the day before. Since the witness's testimony was critical and could not have been reasonably anticipated, failure of trial court to grant such continuance constituted an abuse of discretion and was so prejudicial of the substantial rights of the defendant as to necessitate reversal. State v. Billington, 1974-NMCA-010, 86 N.M. 44, 519 P.2d 140. Sanction for failure to list witness. - Striking a key prosecution witness because of the failure of the state to include his name on pretrial witness lists was not an abuse of discretion. State v. Martinez, 1998-NMCA-022, 124 N.M. 721, 954 P.2d 1198. Where no claim of surprise or inadequate inquiry made. - Where defendants objected to the admission of a letter not disclosed prior to trial by the district attorney, but made no claim of surprise to the trial court, nor did they seek a continuance or ask the trial court to conduct the "adequate inquiry" which on appeal they assert was required, the appellate court would not consider the claim that the trial court's inquiry was inadequate. State v. Smith, 1975-NMCA-139, 88 N.M. 541, 543 P.2d 834. Nondisclosure not established. - Speculation that there might be test results of the defendant's hair in a prosecution for criminal sexual penetration and that the test results might have been exculpatory did not establish a nondisclosure of exculpatory evidence. State v. Martinez, 1982-NMCA-053, 98 N.M. 27, 644 P.2d 541. Trial court did not err in refusing to grant mistrial or continuance because defense counsel lacked an opportunity to interview a witness. State v. Ewing, 1982-NMCA-030, 97 N.M. 484, 641 P.2d 515. Continuing duty to disclosure additional material or witnesses is prescribed by Paragraph A of this rule. State v. McDaniel, 2004-NMCA-022, 135 N.M. 84, 84 P.3d 701, cert. denied, 2004-NMCERT-002. Appellate court's standard for evaluating a trial court's decision to admit evidence disclosed for the first time at trial. - An appellate court's standard for evaluating the trial court's decision to admit evidence disclosed for the first time at trial considers whether the State breached some duty or intentionally deprived the defendant of evidence, whether the improperly non-disclosed evidence was material, whether the non-disclosure of the evidence prejudiced the defendant, and whether the trial court cured the failure to timely disclose the evidence. State v. Smith, 2016-NMSC-007. Where the State's DNA expert notified the State of the need to recalculate certain DNA results and the recalculated DNA data was provided to defendant the same day the report was made, where the trial court cured any adverse consequences due to the untimely disclosure of evidence by allowing for a reasonable delay in the trial proceedings for defense counsel to consult his own DNA expert, and where the recalculated DNA results were favorable to defendant and defense counsel had the opportunity to thoroughly cross-examine the State's DNA expert at trial after consulting with defense counsel's own expert, there was no prejudice to defendant by admitting the recalculated DNA result, and the trial court's decision to admit the evidence was not an abuse of discretion. State v. Smith, 2016-NMSC-007. No breach of duty to disclose. - Where the prosecutor did not violate the continuing duty to disclose or intentionally deprive defendant of evidence but promptly informed defendant about a witness as soon as the witness was located, as required by Paragraph A of this rule, the prosecutor did not act to intentionally deprive defendant of evidence, and there was no breach of the duty to disclose. State v. McDaniel, 2004-NMCA-022, 135 N.M. 84, 84 P.3d 701, cert. denied, 2004-NMCERT-002. Defendant was not prejudiced by late disclosure of witness where defendant has not shown how his cross-examination would have been improved by an earlier disclosure or how he would have prepared differently for trial, in light of a review of the record which showed that the jury had sufficient information to assess the credibility of the witness and her motive for testifying, and during cross-examination, defense counsel repeatedly challenged the neighbor's credibility. State v. McDaniel, 2004-NMCA-022, 135 N.M. 84, 84 P.3d 701, cert. denied, 2004-NMCERT-002. No violation where state did not fail to disclose witness's identity or act in bad faith. - Where defendant, who was charged with aggravated battery with a deadly weapon, sought to suppress the testimony of the only witness to the altercation between defendant and the victim, the district court did not abuse its discretion by refusing to exclude the witness's testimony, because the state filed an updated witness list several years before trial which included the name of the witness and his address at the time, and although the witness moved out of state, the state searched to locate the witness for an interview prior to trial, and defendant was ultimately able to interview the witness prior to his testimony; the state did not fail to disclose the witness's identity or act in bad faith to conceal the witness's whereabouts. State v. Lopez, 2018-NMCA-002, cert. denied. Late disclosure of evidence not prejudicial. - Where defendant was charged with forgery and identity theft based on allegations of check fraud at Wal-Mart, the trial court did not abuse its discretion in admitting the testimony of a records custodian and in admitting records of database searches for transactions appearing to involve defendant, because the late substitution of the records custodian for another records custodian that had previously been disclosed to defendant did not undermine defendant's preparation for trial, the records produced by the records custodian did not contain any new information not included in an earlier disclosure, and defendant did not demonstrate prejudice when he had the opportunity to interview the late-disclosed witness prior to trial. State v. Imperial, 2017-NMCA-040, cert. denied. 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. 22A C.J.S. Criminal Law §§ 532 to 534.