N.M. R. Evid. 11-1004
An original is not required and other evidence of the content of a writing, recording, or photograph is admissible if
N.M. R. Evid. 11-1004
Committee commentary. - The language of Rule 11-1004 NMRA was amended in 2012 to be consistent with the restyling of the Federal Rules of Evidence, effective December 1, 2011, to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. There is no intent to change any result in any ruling on admissibility.
[Adopted by Supreme Court Order No. 12-8300-015, effective for all cases pending or filed on or after June 16, 2012.]
ANNOTATIONS The 2012 amendment, approved by Supreme Court Order No. 12-8300-015, effective for all cases pending or filed on or after June 16, 2012, modified the title of the rule and rewrote the rule to make stylistic changes. The 1993 amendment, effective December 1, 1993, substituted "that party" for "he" in two places in Paragraph C. Compiler's notes. - This rule is similar to Rule 1004 of the Federal Rules of Evidence. Best evidence rule. - Where the defendant and another person were driving separate vehicles in a cooperative operation known as using "tandem vehicles" to smuggle drugs into the United States; the defendant was driving a Mustang and the other person was driving a Nissan; the officers stopped the defendant and did not discover any drugs; the officers later stopped the Nissan and discovered marijuana; a Border Patrol Agent testified at trial that the agent observed a registration document in the glove box of the Nissan and obtained a printout of a registration check through the National Law Enforcement system which showed that the defendant owned the Nissan; and the documents referred to by the agent were not introduced at trial and the State provided no explanation as to the unavailability of the documents, the trial court erred in admitting the testimony of the agent with regard to the documents. State v. Lopez, 2009-NMCA-044, 146 N.M. 98, 206 P.3d 1003. Exception to the best evidence rule. - This rule provides an exception to the best evidence rule when all the originals of a writing, recording, or photograph are lost or destroyed, and not by the proponent acting in bad faith. The State bears the burden of establishing, by a preponderance of the evidence, that the original writing, recording, or photograph was lost or destroyed, and that its loss or destruction was not the result of bad faith. State v. Hanson, 2015-NMCA-057. At trial, where defendant was charged with violating a no-contact provision of a protective order when he allegedly sent a series of text messages to the petitioner of the protective order, and where the State sought to admit a handwritten transcript of the text messages to prove the contents of the text messages, it was error for the trial court to admit the handwritten transcript under the "lost or destroyed" exception to the best evidence rule, because the State did not introduce any evidence that the original text messages had been erased from the phone, and therefore the State failed to meet its burden of establishing by a preponderance of the evidence that the original messages on the phone were lost or destroyed without bad faith. State v. Hanson, 2015-NMCA-057. Purpose of this rule is a common sense approach to application of rules of evidence when a problem arises in construction of the rules. Sundberg v. Hurley, 1976-NMCA-081, 89 N.M. 511, 554 P.2d 673, cert. denied, 90 N.M. 9, 558 P.2d 621. Instruments lost or destroyed. - It is up to trial court to determine if proof offered is sufficient to establish that instrument was lost so as to permit proof of its contents by secondary evidence. Johnson v. Johnson, 1964-NMSC-233, 74 N.M. 567, 396 P.2d 181 (decided before enactment of this rule). The trial court did not err in permitting claimants to establish the contents of missing notations by oral testimony, since the original notations were either lost or destroyed. The requirement of a writing does not preclude proof of a lost document. In re Estate of Bergman, 1988-NMCA-061, 107 N.M. 574, 761 P.2d 452. "Collateral" construed. - Whether a document is collateral is a question of whether it is important enough, under all the circumstances, to need production; judge presiding over trial is fittest to determine this question finally. Sundberg v. Hurley, 1976-NMCA-081, 89 N.M. 511, 554 P.2d 673, cert. denied, 90 N.M. 9, 558 P.2d 621. Hospital records showing frequency of disorder collateral. - Where controlling issue in malpractice suit was negligence of defendant-doctor's failure to discover slipped or slipping capital femur epiphysis in its early stages during examination of plaintiff, information about hospital records (how many patients with such a complaint had been treated in last five years) was not a controlling issue in the case; thus records were only collaterally involved, parol evidence was admissible to establish number of cases of epiphysis in records and trial court did not abuse its discretion in allowing such parol evidence. Sundberg v. Hurley, 1976-NMCA-081, 89 N.M. 511, 554 P.2d 673, cert. denied, 90 N.M. 9, 558 P.2d 621. Evidence of contents of warranty documents. - A home seller's affidavit containing his sworn statement that the stucco on the house was covered by a "fully transferable, one-year warranty" was admissible as to the contents of the warranty document, where the warranty agreement or card had been lost. Sundberg v. Hurley, 1976-NMCA-081, 89 N.M. 511, 554 P.2d 673, cert. denied, 90 N.M. 9, 558 P.2d 621. Business ledgers not "copies". - The defendant's reliance on best evidence rule as grounds of exclusion of ledger book on the issue of business revenues was misplaced. Cent. Sec. & Alarm Co. v. Mehler, 1996-NMCA-060, 121 N.M. 840, 918 P.2d 1340. Am. Jur. 2d, A.L.R. and C.J.S. references. - 29A Am. Jur. 2d Evidence § 1053 et seq. Admissibility of memorandum of telephone conversation, 94 A.L.R.3d 975. Federal rules of evidence: admissibility, pursuant to Rule 1004(1) of other evidence of contents of writing, recording, or photograph, where originals were allegedly lost or destroyed, 83 A.L.R. Fed. 554. 32A C.J.S. Evidence § 1054 et seq.