N.M. R. Crim. P. Magist. Ct. 6-202.1

As amended through February 27, 2024

Rule 6-202.1 - Exceptions to rules of evidence for preliminary examinations

A.Exceptions to hearsay rule. In any preliminary examination, the following categories of evidence are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness:

(1) a recording or transcript of a forensic interview of a minor or incompetent victim conducted at a safe house; or

(2) a written report of the conduct and results of a laboratory analysis of a human specimen or a controlled substance enumerated in Sections 30-31-6 through -10 NMSA 1978, for determining the presence and quantity or absence of a controlled substance and the circumstances surrounding receipt and custody of the test sample, or a written report of the conduct and results of an autopsy for determining the fact and cause of death and the circumstances surrounding receipt and custody of the decedent, if the report is of an analysis conducted by

(a) the New Mexico State Police crime laboratory;

(b) the scientific laboratory division of the Department of Health;

(c) the Office of the Medical Investigator; or

(d) a laboratory certified to accept human specimens for the purpose of performing laboratory examinations under the federal Clinical Laboratory Improvement Act of 1988.

B.Exception to authentication rule. In any preliminary examination, a proffer by counsel is sufficient to meet the authentication and identification requirements of Rule 11-901(A) NMRA with regard to a recording or transcript of a 911 emergency call or a transcript of the computer-aided dispatch (CAD) incident report.

C.Exception for controlled substance field tests. In any preliminary examination, the results of a field test conducted for the detection of controlled illegal substances shall not be excluded based on objections to the scientific accuracy or reliability of the field test.

D.Certification. Evidence admitted under the exceptions established by Subparagraph (A)(2) of this rule must include a certification form approved by the Supreme Court.

E.Copies. A legible copy of the certification form and report must be mailed to the defendant or the defendant's counsel at least four (4) days before the preliminary examination if the defendant is in custody and at least ten (10) days before the preliminary hearing if the defendant is not in custody.

F.Admissibility of other evidence. Nothing in this rule shall limit the right of a party to call witnesses to testify as to the matters covered in such report, nor affect the admissibility of any evidence other than this report.

N.M. R. Crim. P. Magist. Ct. 6-202.1

As amended, effective 1/1/1987;1/1/1995; Rule 6-608 recompiled and amended as Rule 6-202.1 by Supreme Court Order No. 22-8300-023, effective for all cases pending or filed on or after December 31, 2022.

Committee commentary. - Rule 11-803(4) NMRA excepts statements made for and reasonably pertinent to medical diagnosis or treatment from the rule against hearsay, regardless of whether the declarant is available as a witness. This exception includes statements made to a Sexual Assault Nurse Examiner (SANE) for medical diagnosis or treatment. The committee did not include statements made to a SANE or other medical professional in the exceptions established by this rule because those statements are already addressed by Rule 11-803(4) NMRA.

Additionally, Rule 11-803(2) NMRA excepts statements considered excited utterances from the rule against hearsay, regardless of whether the declarant is available as a witness. The committee did not include those statements in the exceptions established by this rule because those statements are already addressed by Rule 11-803(2) NMRA. The exception in Paragraph B of this rule allows for authentication of the 911 recording or CAD transcript without calling a dispatcher or other police employee to testify to lay that foundation.

[Adopted by Supreme Court Order No. 22-8300-023, effective for all cases pending or filed on or after December 31, 2022.]

ANNOTATIONS The 1995 amendment, effective January 1, 1995, added "preliminary hearings" in the rule heading, inserted "human specimen or a" near the beginning in Paragraph A, and rewrote Paragraph A(1) by adding the subparagraph designations and adding Subparagraphs (b) and (d).

For the federal Clinical Laboratory Improvement Act of 1988, referred to in Subparagraph A(1)(d), see 42 U.S.C. § 463a . Right of confrontation. - The right of confrontation guaranteed by the Sixth Amendment to the United States Constitution and Article II, Section 14 of the New Mexico Constitution is a trial right that does not apply to probable cause determinations in preliminary examinations. State v. Lopez, 2013-NMSC-047, overruling Mascarenas v. State, 1969-NMSC-116, 80 N.M. 537, 458 P.2d 789. Right of confrontation did not apply at preliminary examination. - Where police officers found a bag containing a green leafy substance and a bag that contained a white powdery substance in defendant's vehicle during a search incident to defendant's arrest for driving with a suspended license; at defendant's preliminary examination, the magistrate court admitted a forensic laboratory report into evidence without an opportunity for the defense to personally cross-examine the laboratory analyst who prepared the report; and the report concluded that the white powdery substance was cocaine and the green leafy substance was marijuana, the magistrate court did not violate defendant's confrontation rights under the United States Constitution and the New Mexico Constitution because the constitutional right of confrontation does not apply to probable cause determinations in preliminary examinations. State v. Lopez, 2013-NMSC-047, overruling Mascarenas v. State, 1969-NMSC-116, 80 N.M. 537, 458 P.2d 789.