N.M. R. Evid. 11-405
N.M. R. Evid. 11-405
Committee commentary. - The language of Rule 11-405 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, rewrote the rule to make stylistic changes. The 1993 amendment, effective December 1, 1993, substituted "that person's conduct" for "his conduct" at the end of Paragraph B. Compiler's notes. - This rule is similar to Rule 405 of the Federal Rules of Evidence. Rule 11-403 NMRA resolves potential conflict between this rule and 30-9-16 NMSA 1978. - There is no conflict between this rule and 30-9-16 NMSA 1978, which limits admissibility of evidence of a sex offense victim's past sexual conduct, because the balancing approach of Rule 11-403 NMRA is applicable to exclude evidence admissible under this rule. State v. Herrera, 1978-NMCA-048, 92 N.M. 7, 582 P.2d 384, cert. denied, 91 N.M. 751, 580 P.2d 972. Evidence must be relevant to pertinent character trait. - The distinction between proof of reputation and proof of specific acts is not applied by the evidence rules when a pertinent trait of character of the victim is offered by an accused as an essential element of a defense, but since the trait of character must be pertinent the question of relevance remains. State v. Herrera, 1978-NMCA-048, 92 N.M. 7, 582 P.2d 384, cert. denied, 91 N.M. 751, 580 P.2d 972. Methods of proving character used circumstantially. - Where character evidence is used to suggest that a person acted consistently with his character, the evidence is circumstantial and problems of relevancy exist; in such cases character may be proved only by evidence of reputation or opinion evidence, not by specific instances of conduct. State v. Bazan, 1977-NMCA-011, 90 N.M. 209, 561 P.2d 482, cert. denied, 90 N.M. 254, 561 P.2d 1347. Methods of proving character as element of crime or defense. - Where character is an element of the crime, claim or defense, there is no question as to relevancy; character evidence of this type is not covered by Rule 11-404 NMRA (relating to evidence of character and other acts), and is admissible under Rule 11-402 NMRA which relates to admission of relevant evidence. Such character evidence may be proved by evidence of reputation, by opinion evidence or by specific instances of conduct. State v. Bazan, 1977-NMCA-011, 90 N.M. 209, 561 P.2d 482, cert. denied, 90 N.M. 254, 561 P.2d 1347. Admissibility of psychologist's opinion. - Although the character of a coercer is not an element of the defense of duress, a psychologist's opinion of the alleged coercer's character is admissible as relevant to prove defendant's reasonable apprehension that the coercer would carry out his threats. State v. Duncan, 1991-NMSC-010, 111 N.M. 354, 805 P.2d 621. Inquiry into basis of witness' information, accuracy and credibility is almost universally admissible. State v. Christopher, 1980-NMSC-085, 94 N.M. 648, 615 P.2d 263. Where witnesses testify to defendant's reputation for peacefulness, the prosecutor is permitted to test the witnesses' grounds of knowledge. State v. Christopher, 1980-NMSC-085, 94 N.M. 648, 615 P.2d 263. Defendant's trait of character for peacefulness was relevant to prosecution for child abuse based on shaken baby syndrome, and, therefore, admissible under this rule. State v. Schoonmaker, 2005-NMCA-012, 136 N.M. 749, 105 P.3d 302, cert. granted, 2005-NMCERT-001. Specific conduct evidence is not admissible to prove a pertinent trait of character under Rule 11-404 NMRA. State v. Montoya, 1981-NMCA-021, 95 N.M. 433, 622 P.2d 1053, writ quashed, 95 N.M. 426, 622 P.2d 1046. When Rule 11-404 NMRA is authority for admission of character evidence, the method of proof must be in conformity with Paragraph A. State v. Montoya, 1981-NMCA-021, 95 N.M. 433, 622 P.2d 1053, writ quashed, 95 N.M. 426, 622 P.2d 1046. Evidence of defendant's peaceful character subject to rebuttal by the State. - Where defense counsel elicited evidence from a State's witness that defendant had a nice, quiet, and non-aggressive nature, the district court did not abuse its discretion in allowing the State to rebut this evidence with evidence that defendant had been accused of aggravated assault with a deadly weapon for going to the property of an individual and shooting a gun five to six times. State v. Sanchez, 2015-NMCA-077, cert. denied, 2015-NMCERT-006. False accusations during cross-examination of violent criminal charges cannot bear upon defendant's character. State v. Bartlett, 1981-NMCA-019, 96 N.M. 415, 631 P.2d 321. Hearsay evidence admissible under Rule 11-404 NMRA as to collateral matters is within the trial court's discretionary control. State v. Montoya, 1981-NMCA-021, 95 N.M. 433, 622 P.2d 1053, writ quashed, 95 N.M. 426, 622 P.2d 1046. Victim's aggravated battery conviction inadmissible where no direct knowledge by defendant. - Where defendant in a murder trial testified that he heard of instances where the victim had stabbed several persons, but there was no evidence that defendant knew that the victim had been convicted of aggravated battery, the aggravated battery conviction was not admissible. State v. McCarter, 1980-NMSC-003, 93 N.M. 708, 604 P.2d 1242. Evidence in will contest of character of beneficiary. - Evidence of the character of the beneficiary may be admitted when a will is contested on the grounds of undue influence even when the disposition to exert undue influence is not considered an element of the claim. Such evidence may concern actions occurring, or reputation formed, after the will was executed. In re Will of Ferrill, 1981-NMCA-074, 97 N.M. 383, 640 P.2d 489. Admissibility of evidence of specific acts in cases involving claim of self-defense. - Whenever a specific act by reason of its character, or its relationship in time, place or circumstance to the other facts in a case involving a claim of self-defense would legitimately and reasonably either affect the defendant's apprehensions or throw light on the question of aggression, or upon the conduct or motives of the parties at the time of an affray, it should be admitted. State v. Melendez, 1981-NMCA-027, 97 N.M. 740, 643 P.2d 609, rev'd on other grounds, 1982-NMSC-039, 97 N.M. 738, 643 P.2d 607. Where self-defense is claimed, there seems to be inconsistent authority in New Mexico as to whether the evidence of specific acts of violence would be admissible. State v. Bazan, 1977-NMCA-011, 90 N.M. 209, 561 P.2d 482, implies that the victim's traits of aggressiveness and recklessness are "essential elements" of the defense of self-defense and that evidence of specific acts demonstrating the victim's aggressiveness are thus admissible whenever self-defense is asserted. However, State v. Ewing, 1982-NMSC-003, 97 N.M. 235, 638 P.2d 1080, (quoting State v. McCarter, 1980-NMSC-003, 93 N.M. 708, 604 P.2d 1242, 1246) states that "evidence of specific acts of violence on the part of the deceased could be introduced by a defendant if there was evidence that the defendant had been informed of, or had knowledge of, those acts at the time of the homicide". Trujillo v. Sullivan, 815 F.2d 597 (10th Cir.), cert. denied, 484 U.S. 929, 108 S. Ct. 296, 98 L. Ed. 2d 256 (1987). In a murder trial where the defendant alleged self-defense in shooting at an occupied vehicle but conceded that he did not know of his assailant's juvenile conviction for armed robbery, the trial court did not abuse its discretion in disallowing introduction of the evidence, especially when it is considered that the defendant fired at the vehicle while it was moving away. State v. Gonzales, 1990-NMSC-051, 110 N.M. 166, 793 P.2d 848. Specific instances of the victim's conduct to establish self-defense. - In defendant's trial for felony murder and shooting at or from a motor vehicle, the trial court's exclusion of evidence of drive-by shootings at defendant's house was proper because, although Rule 11-405(B) NMRA allows a defendant to support a self-defense claim by presenting evidence of specific instances of the victim's prior violent conduct of which the defendant is aware, defendant failed to establish that the events were specific instances of the victim's conduct as opposed to the conduct of someone else, and defendant therefore failed to prove the relevance of this evidence to defendant's apprehension of the victim. State v. Marquez, 2016-NMSC-025. Absent claim of self-defense, victim's character traits were not essential elements of defense in a prosecution for assault with intent to commit a violent felony and were not provable by specific acts of conduct. State v. Bazan, 1977-NMCA-011, 90 N.M. 209, 561 P.2d 482, cert. denied, 90 N.M. 254, 561 P.2d 1347. Victim's violent acts not admissible. - Evidence of the victim's specific violent acts is not admissible to prove that the victim acted violently on a specific occasion and was the first aggressor, although evidence of reputation or opinion would be admissible for that purpose. State v. Baca, 1993-NMCA-051, 115 N.M. 536, 854 P.2d 363. Evidence of prior convictions properly excluded where defendant had no knowledge of them. - Trial court did not err in holding that prejudicial effect of victim's 32- and 33-year-old convictions offered to prove the victim was the aggressor outweighed their probative effect where there was no evidence that defendant knew of victim's prior convictions. Ewing v. Winans, 749 F.2d 607 (10th Cir. 1984). Booking photo to show defendant's character. - Where the trial court admitted into evidence defendant's photograph, which was taken when defendant was booked into the county jail while wearing inmate clothing, during defendant's trial for first degree murder; defendant's identity or appearance were not an issue in the case; and the state argued that the photograph was material to defendant's character which the State claimed was central to defendant's claim of self-defense, the trial court erred in admitting the photograph into evidence. State v. Leyba, 2012-NMSC-037, 289 P.3d 1215. 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). For article, "Evidence," see 12 N.M.L. Rev. 379 (1982). For article, "Evidence II: Evidence of Other Crimes as Proof of Intent," see 13 N.M.L. Rev. 423 (1983). For note, "Whether a Defendant's Claim of Victim Aggressiveness is an 'Essential Element' of the Defense of Self-Defense: State v. Baca I & II," see 24 N.M.L. Rev. 449 (1994). Am. Jur. 2d, A.L.R. and C.J.S. references. - 29 Am. Jur. 2d Evidence § 375 et seq. Admissibility of evidence showing plaintiff's antecedent intemperate habits, in personal injury motor vehicle accident action, 46 A.L.R.2d 103. Admissibility, in incest prosecution, of evidence of alleged victim's prior sexual acts with persons other than accused, 97 A.L.R.3d 967. Use of plea bargain or grant of immunity as improper vouching for credibility of witness -state cases, 58 A.L.R.4th 1229. Admissibility of expert or opinion evidence of battered-woman syndrome on issue of self-defense, 58 A.L.R.5th 749. Opinion evidence as to character of accused under Rule 405(a) of Federal Rules of Evidence, 64 A.L.R. Fed. 244. 23 C.J.S. Criminal Law §§ 816 to 825; 32 C.J.S. Evidence § 495 et seq.; 98 C.J.S. Witnesses §§ 489, 491 to 537.