N.M. R. Evid. 11-1008
Ordinarily, the court determines whether the proponent has fulfilled the factual conditions for admitting other evidence of the content of a writing, recording, or photograph under Rule 11-1004 or 11-1005 NMRA. But in a jury trial, the jury determines - in accordance with Rule 11-104(B) NMRA - any issue about whether
N.M. R. Evid. 11-1008
Committee commentary. - The language of Rule 11-1007 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.
[As amended 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 "court" for "judge" in the rule heading and near the end of the introductory paragraph. Compiler's notes. - This rule is similar to Rule 1008 of the Federal Rules of Evidence. General standards for admissibility of secondary evidence. - New Mexico's best evidence rule specifically allocates to the court the responsibility of determining whether the proponent has fulfilled the factual conditions for admitting secondary evidence; the "lost or destroyed" exception to the best evidence rule requires the proponent of secondary evidence in New Mexico to establish, by a preponderance of the evidence, that the originals were lost or destroyed and that their loss or destruction was not the result of bad faith, and the issues of loss or destruction and absence of bad faith are foundational questions for the trial court to determine in accordance with Rule 11-104(A) NMRA before admitting secondary evidence to the jury. 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. Law reviews. - For article, "Survey of New Mexico Law, 1979-80: Evidence," see 11 N.M.L. Rev. 159 (1981). Am. Jur. 2d, A.L.R. and C.J.S. references. - 29A Am. Jur. 2d Evidence § 1049 et seq. Admissibility of photographs of stolen property, 94 A.L.R.3d 357. 48A C.J.S. Judges § 53 et seq.; 50 C.J.S. Juries § 1 et seq.; 88 C.J.S. Trial § 207.