N.M. R. Evid. 11-201
N.M. R. Evid. 11-201
Committee commentary. - The language of Rule 11-201 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. Paragraph B(3) is not in the analogous federal rule, but has been incorporated from the previous version of New Mexico's rule.
[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, rewrote the rule to make stylistic changes. The 1993 amendment, effective December 1, 1993, deleted "judge or" near the beginning of Paragraphs C and D and substituted "court" for "judge" in the first sentence of Paragraph G. Compiler's notes. - This rule is similar to Rule 201 of the Federal Rules of Evidence. This rule is deemed to have superseded former Rule 44(d), N.M.R. Civ. P. (now see Rule 1-044 NMRA).
For judicial notice as to proceedings relating to irrigation districts, see Section 73-9-16 NMSA 1978. For irrigation districts cooperating with federal reclamation laws, see Section 73-10-20 NMSA 1978. For judicial notice of herd law district proceedings, see Section 77-12-8 NMSA 1978. For notice of proceedings to impound trespassing animals within irrigation districts, see Section 77-14-10 NMSA 1978. I. GENERAL CONSIDERATION. Municipal ordinances are law and Rule 11-201 NMRA does not apply to the introduction of municipal ordinances into a case. City of Aztec v. Gurule, 2010-NMSC-006, 147 N.M. 693, 228 P.3d 477, overruling Muller v. City of Albuquerque, 1978-NMSC-091, 92 N.M. 264, 587 P.2d 42; Coe v. City of Albuquerque, 1970-NMSC-041, 81 N.M. 361, 467 P.2d 27; and Gen. Servs. Corp. v. Board of Comm'rs of Bernalillo Cnty., 1965-NMSC-112, 75 N.M. 550, 408 P.2d 51. Rule does not apply to municipal ordinances. - Where defendant was convicted in municipal court of aggravated DWI contrary to a municipal ordinance; defendant appealed to district court; at the trial de novo in district court, the municipality failed to introduce the municipal ordinance into evidence; and the district court properly denied defendant's motion to dismiss on the grounds that the municipality did not prove its case because it failed to introduce the municipal ordinance into evidence. City of Aztec v. Gurule, 2010-NMSC-006, 147 N.M. 693, 228 P.3d 477, overruling Muller v. City of Albuquerque, 1978-NMSC-091, 92 N.M. 264, 587 P.2d 42; Coe v. City of Albuquerque, 1970-NMSC-041, 81 N.M. 361, 467 P.2d 27; and Gen. Servs. Corp. v. Board of Comm'rs of Bernalillo Cnty., 1965-NMSC-112, 75 N.M. 550, 408 P.2d 51. Basic considerations of procedural fairness demand opportunity to be heard on propriety of taking judicial notice and tenor of matter to be noticed. Paragraph E requires granting of that opportunity upon request. Although no formal scheme of giving notice is provided, an adversely affected party may learn in advance that judicial notice is in contemplation, either by virtue of being served with a copy of a request by another party or through an indication by the court. Frost v. Markham, 1974-NMSC-046, 86 N.M. 261, 522 P.2d 808. II. JUDICIAL NOTICE OF LAY FACTS. Kinds of facts courts may notice. - Courts may take judicial notice of facts which are self-evident or which are commonly and generally known and are capable of immediate and accurate verification by resort to readily accessible sources of unquestionable accuracy. Horton v. Driver-Miller Plumbing, Inc., 1966-NMSC-084, 76 N.M. 242, 414 P.2d 219 (decided before enactment of this rule). Judicial notice of factors considered in fixing attorney's fees. - In most instances, a lawyer's skill, ability, experience and standing in the legal community, and the rising cost of living, as well as other recognized factors, may be judicially noticed in fixing an attorney's fee in a workmen's compensation case. Woodson v. Phillips Petroleum Co., 1985-NMSC-018, 102 N.M. 333, 695 P.2d 483. Judicial notice properly taken of English translation of waiver. - Where record reflected defendant's waiver in Spanish of his constitutional rights, the court of appeals took judicial notice of its English interpretation and agreed with trial court that the language of the waiver satisfied requirements of due process. State v. Ramirez, 1976-NMCA-101, 89 N.M. 635, 556 P.2d 43, overruled on other grounds, City of Albuquerque v. Haywood, 1998-NMCA-029, 954 P.2d 93. Judicial notice properly taken of nature of cattle guards. - Cattle guards are common objects in New Mexico cattle country, and courts can take judicial notice of their nature by appropriate books or documents of reference. Williams v. N.M. State Hwy. Comm'n, 1971-NMCA-050, 82 N.M. 550, 484 P.2d 770. Judicial notice properly taken of boundaries of state and counties. - New Mexico allows its courts to take judicial notice of boundaries of the state and counties therein. State v. Tooke, 1970-NMCA-068, 81 N.M. 618, 471 P.2d 188, overruled on other grounds, State v. Ruffins, 1990-NMSC-035, 109 N.M. 668, 789 P.2d 616. Matter must be certain. - The matter of which a court will take judicial notice must be a subject of common and general knowledge that is well established and authoritatively settled; thus, uncertainty of the matter or fact in question will operate to preclude judicial notice thereof. Rozelle v. Barnard, 1963-NMSC-101, 72 N.M. 182, 382 P.2d 180. No judicial notice of repair charges. - Local charges in Albuquerque for rebuilding a motor, repairing a radiator or the charges for labor are not of such common and general knowledge that they can be judicially noticed. Rozelle v. Barnard, 1963-NMSC-101, 72 N.M. 182, 382 P.2d 180. No judicial notice of causes of leaking pipes. - Cause or causes of leaking pipes are not matters of such common knowledge that the court could properly have taken judicial notice thereof. Horton v. Driver-Miller Plumbing, Inc., 1966-NMSC-084, 76 N.M. 242, 414 P.2d 219. No judicial notice of state of market. - Appellate court will not take judicial notice of the market to determine the issue of impossibility of performance as a defense to an action for breach of contract. Reinhart v. Rauscher Pierce Sec. Corp., 1971 -NMCA-144, 83 N.M. 194, 490 P.2d 240. No judicial notice of availability of mental health care. - Where defendant asked court of appeals to take judicial notice that no psychiatric or psychological help was available for defendant at the penitentiary, but defendant cited neither source nor reference for such a proposition and court found none in its search, assertion is not a matter for judicial notice. State v. Hogan, 1972-NMCA-037, 83 N.M. 608, 495 P.2d 388. No judicial notice of general scientific law absent showing of application. - Trial court properly refused to take judicial notice of an encyclopedia article on the general nature of combustion of gases, since a showing was required as to application of the variables of the general law to the situation in question, and plaintiff made no such showing. Hartford Accident & Indem. Co. v. Beevers, 1972-NMCA-107, 84 N.M. 159, 500 P.2d 444. III. JUDICIAL NOTICE OF GOVERNMENTAL ACTION. Termination of parental rights proceedings. - If the district court feels it necessary to take judicial notice of all or part of a case file in a termination of parental rights proceeding, the court should state what information, specifically, is being judicially noticed and how the court intends to use the judicially noticed information. State ex rel. CYFD v. Brandy S., 2007-NMCA-135, 142 N.M. 705, 168 P.3d 1129. Supreme court will not take notice of proceedings in lower court. Richardson Ford Sales v. Cummins, 1964-NMSC-128, 74 N.M. 271, 393 P.2d 11. Court will take notice that written pleading is prerequisite to obtaining restraining order. Norton v. Reese, 1966-NMSC-154, 76 N.M. 602, 417 P.2d 205. Courts of state judicially notice public act of judicial department. Lott v. State, 1967-NMSC-073, 77 N.M. 612, 426 P.2d 588. District courts are authorized to take judicial notice of official acts of state judiciary; however, if judicial notice is taken of a prior judicial proceeding, there should be a clear delineation in the record as to what is being noticed, writings so noticed should be in the record so as to permit appellate review and a specification of what is being noticed should be clearly and timely stated so that parties affected may have an opportunity to address themselves to such matters. Frost v. Markham, 1974-NMSC-046, 86 N.M. 261, 522 P.2d 808 (decided under former version of Rule 1-044 ). Notice of incomplete or confusing law refused. - Judicial notice of a law which is incomplete or confusing is properly refused. State v. Shafer, 1985-NMCA-018, 102 N.M. 629, 698 P.2d 902. Ordinances noticed where de novo trial in district court. - Where district court tries case de novo upon appeal from municipal court, it is the prevailing rule that ordinances may be judicially noticed. City of Albuquerque v. Leatherman, 1965-NMSC-009, 74 N.M. 780, 399 P.2d 108. Ordinances not noticed in regular appeals. - Appellate court which is not trying the case de novo on appeal from a municipal court may not take judicial notice of municipal ordinances, and such ordinances are matters of fact which must be pleaded and proved the same as any other fact. Coe v. City of Albuquerque, 1970-NMSC-041, 81 N.M. 361, 467 P.2d 27. Judicial notice of valid rules and regulations proper. - Trial court properly refused to take judicial notice of rules and regulations allegedly adopted by the state fire board (Section 59-17-1 NMSA 1978 et seq. (now repealed)) since, absent a showing that the rules and regulations had been properly filed under State Rules Act (see Section 14-4-1 NMSA 1978) or that these specific rules and regulations were not required to be filed, there could be no showing of valid rules and regulations of an executive department. Hartford Accident & Indem. Co. v. Beevers, 1972-NMCA-107, 84 N.M. 159, 500 P.2d 444. When shipper sues carrier for loss of property in interstate shipment, the court may take judicial notice of tariffs and rates filed by carrier with the interstate commerce commission. Murchison v. Allied Van Lines, 1964-NMSC-190, 74 N.M. 446, 394 P.2d 596. Record itself is evidence of print, if kept by authority express or implied, and fingerprint records are kept under the express authority of a federal regulation ( 28 C.F.R. § 0.85 ) of which the supreme court takes judicial notice. State v. Miller, 1968-NMSC-054, 79 N.M. 117, 440 P.2d 792. Governor's messages and legislative reports may be noticed. - Governor's messages before joint sessions of the legislative houses and reports of legislative committees with which the legislature satisfied itself of the accuracy of matters called to its attention by the executive will be judicially noticed by the courts. State ex rel. Hughes v. Cleveland, 1943-NMSC-029, 47 N.M. 230, 141 P.2d 192. It should be assumed by supreme court that, the governor having pointed out in message to legislature that a large decrease in revenues was anticipated, the lawmakers were moved in part thereby. State ex rel. Hughes v. Cleveland, 1943-NMSC-029, 47 N.M. 230, 141 P.2d 192. Action of constitutional convention may be noticed. - Courts may take notice of rejection of a minority report of a constitutional convention committee. State ex rel. Hughes v. Cleveland, 1943-NMSC-029, 47 N.M. 230, 141 P.2d 192. Prerequisites for judicial notice of other states' law. - While courts are authorized under former Rule 44(d), N.M.R. Civ. P. (now superseded by this rule), to take judicial notice of statutes of other states and their construction by the highest courts of appellate jurisdiction, they will do so only where such statute has been presented to trial court and where error is asserted because trial court failed to notice or follow such foreign statute, or where it is necessary for the court to take judicial notice of the statute of another state upon which a decision of that state, relied upon, is predicated. Boswell v. Rio De Oro Uranium Mines, Inc., 1961-NMSC-082, 68 N.M. 457, 362 P.2d 991. Use of foreign law to decide admissibility of death certificate. - Former Rule 44(d), N.M.R. Civ. P. (now superseded by this rule), required that the supreme court examine decisions from the state of Texas in an effort to determine if a death certificate issued by a Texas justice of the peace was admissible or not by virtue of the fact that it showed on its face that the statement as to cause of death was based on hearsay. Callaway v. Mountain States Mut. Cas. Co., 1962 -NMSC-094, 70 N.M. 337, 373 P.2d 827. Law reviews. - For article, "The Admissibility of Scientific Evidence Under the New Mexico and Federal Rules of Evidence," see 6 N.M.L. Rev. 187 (1976). 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. - 29 Am. Jur. 2d Evidence § 24 et seq. Uniform Judicial Notice of Foreign Law Act, 23 A.L.R.2d 1437. Reception of evidence to contradict or rebut matters judicially noticed, 45 A.L.R.2d 1169. Judicial notice of matters relating to public thoroughfares and parks, 48 A.L.R.2d 1102, 86 A.L.R.3d 484. Judicial notice of intoxicating quality, and the like, of liquor or particular liquid, from its name, 49 A.L.R.2d 764. Judicial notice of diseases or similar conditions adversely affecting human beings, 72 A.L.R.2d 554. Judicial notice of drivers' reaction time and of stopping distance of motor vehicles traveling at various speeds, 84 A.L.R.2d 979. Judicial notice as to assessed valuations, 42 A.L.R.3d 1439. Judicial notice as to location of street address within particular political subdivision, 86 A.L.R.3d 484. Judicial notice of attorney customs and practices, 61 A.L.R.5th 707. Federal or state law as governing federal court's authority, in diversity action after Erie R. Co. v. Tompkins, to take judicial notice of law of sister state or foreign country, 7 A.L.R. Fed. 921. What constitutes "adjudicative facts" within meaning of Rule 201 of Federal Rules of Evidence, concerning judicial notice of adjudicative facts, 35 A.L.R. Fed. 440. Effect of Rule 201(g) of the Federal Rules of Evidence, providing for instruction in criminal case that jury need not accept as conclusive fact judicially noticed, on propriety of taking judicial notice on appeal under Rule 201(f), 49 A.L.R. Fed. 911. What constitutes "adjudicative facts" within meaning of Rule 201 of Federal Rules of Evidence concerning judicial notice of adjudicative facts, 150 A.L.R. Fed. 543. 4 C.J.S. Appeal and Error §§ 572, 573; 31A C.J.S. Evidence §§ 8 et seq., 61 et seq., 70 et seq.; 35A C.J.S. Federal Civil Procedure §442.