N.M. R. Evid. 11-410
N.M. R. Evid. 11-410
Committee commentary. - The language of Rule 11-410 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.
The New Mexico rule, unlike the federal rule, also applies to Children's Court delinquency proceedings.
[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 title of the rule and the rule to make stylistic changes. The 1999 amendment, effective February 1, 2000, inserted "or an admission in a children's court proceeding" near the beginning and substituted "no contest" for "nolo contendere" in two places. Compiler's notes. - This rule is similar to Rule 410 of the Federal Rules of Evidence. The admission of a guilty plea in violation of Rule 11-410 NMRA is subject to a harmless error test. State v. Smile, 2009-NMCA-064, 146 N.M. 525, 212 P.3d 413, cert. granted, 2009-NMCERT-007. Admission of guilty plea was harmless. - Where, before the trial court admitted testimony that the defendant attempted to plead guilty to charges of aggravated stalking in magistrate court, the state offered the victim's eyewitness testimony that the defendant had threatened the victim on multiple occasions and similar eyewitness testimony by the victim's friends regarding the defendant's multiple threats toward the victim; police officers testified that the defendant stated that the defendant was going to make the victim feel the defendant's pain, that the defendant was going to put the fear of God in the victim, and that the defendant admitted that the defendant sat in front of the victim's apartment after receiving a temporary restraining order to inflict pain on the victim and to instill fear in the victim; and when the defendant testified, the defendant did not offer any testimony that was inconsistent with the guilty plea and the defendant admitted that the defendant had done everything that the victim had accused the defendant of doing, the guilty plea evidence was cumulative evidence and the erroneous admission of testimony about the defendant's guilty plea was harmless. State v. Smile, 2009-NMCA-064, 146 N.M. 525, 212 P.3d 413, cert. granted, 2009-NMCERT-007. Nolo contendere plea inadmissible in contempt hearing. - Where Children, Youth and Families Department (CYFD) sought to admit, in a contempt hearing, evidence of parents' no contest pleas from an abuse and neglect proceeding to show, based on those admissions, that parents were not entitled to damages for CYFD's contemptuous conduct, the district court did not err in precluding the admission of the stipulated judgment in which parents entered pleas of no contest to abuse, because Rule 11-410(A)(2) NMRA prohibits the admission of a nolo contendere plea against the one who made it as proof of guilt. State ex rel. Children, Youth & Families Dep't. v. Mercer-Smith, 2015-NMCA-093, cert. granted, 2015-NMCERT-008. Evidence of a plea of nolo contendere is inadmissible in any subsequent proceeding. - Where plaintiffs filed suit for damages against defendants, alleging fraud, constructive fraud, intentional misrepresentation, and conversion, claiming that defendants, during the formation of a joint business venture, failed to disclose a nineteen-year-old nolo contendere plea to a theft of trade secrets charge, and alleging that had plaintiffs known of the plea, they never would have agreed to go into business with defendants, the district court did not err in granting defendants' motion for summary judgment, because Rule 11-410 NMRA prohibits the admission of a nolo contendere plea against the pleader in subsequent proceedings, thereby leaving plaintiffs unable to prove misrepresentation, a necessary element of their case. Kipnis v. Jusbasche, 2017-NMSC-006, rev'g 2015-NMCA-071, 352 P.3d 687. Admissibility of nolo contendere pleas. - This rule was intended to provide that pleas of nolo contendere, and convictions on the basis of such pleas, are excluded only if they are offered to prove that the defendant is guilty of the crime in question. This rule does not prohibit admission of a nolo contendere plea or judgment based thereon for purposes other than to prove guilt. Kipnis v. Jusbasche, 2015-NMCA-071, cert. granted, 2015-NMCERT-006. Where plaintiffs filed suit against defendant for fraud, constructive fraud, and conversion, claiming that defendant breached a duty to disclose the fact that he pled nolo contendere to a charge of theft of trade secrets nineteen years earlier, the trial court erred in excluding evidence of the plea and related judgment because plaintiffs did not offer the evidence as proof of defendant's guilt, but claimed that the evidence relating to defendant's plea was necessary to prove that defendant breached a duty to disclose the existence of the plea. Kipnis v. Jusbasche, 2015-NMCA-071, cert. granted, 2015-NMCERT-006. This rule embodies public interest in encouraging negotiations concerning pleas between the criminal defendant and the state. State v. Trujillo, 1980-NMSC-004, 93 N.M. 724, 605 P.2d 232. Plain import of rule is to prohibit admissibility of statements made during plea negotiations in any proceeding. State v. Trujillo, 1980-NMSC-004, 93 N.M. 724, 605 P.2d 232. If plea is never entered or entered and withdrawn at trial it is to appear as though the earlier plea and/or plea discussions never took place. State v. Trujillo, 1980-NMSC-004, 93 N.M. 724, 605 P.2d 232. Incriminating statement made during plea negotiation may not be admitted at trial for either substantive or impeachment purposes. State v. Trujillo, 1980-NMSC-004, 93 N.M. 724, 605 P.2d 232. Use of psychological evaluation created as part of plea negotiations was error, but did not rise to the level of plain error.- In defendant's trial for criminal sexual penetration of a minor, criminal sexual contact of a minor, and bribery of a witness, where the district court allowed the State to impeach defendant with a psychological evaluation, created and given to the State as part of plea negotiations, that contained statements that contradicted defendant's testimony during direct examination and statements seeming to admit to the alleged acts, and where defendant's trial counsel failed to object to the State's use of the evaluation as impeachment evidence, the district court erred in allowing the State to use the evaluation, because Rule 11-410(A)(5) NMRA prohibits using statements made during plea discussions for either substantive or impeachment purposes. The error in allowing the State to use the evaluation, however, did not rise to the level of plain error, because defendant had an opportunity to explain the answers contained in the evaluation, the evaluation itself was not introduced as an exhibit and was not provided to the jury, and did not create grave doubts about the validity of the verdict against defendant. State v. Miera, 2018-NMCA-020. Reliance on rule by defendant. - The determinative factor in excluding statements pursuant to this rule is whether it may be naturally inferred that the defendant relied on the rule in deciding to break silence, because the rule encourages cooperation only if the defendant relied on it. State v. Anderson, 1993-NMSC-077, 116 N.M. 599, 866 P.2d 327. Presumption of reliance. - To assure "fairness", when a suspect is induced by the state to engage in plea negotiations, as in formal plea negotiations with a state attorney or an agent of the attorney, there will be an irrebuttable presumption that such person has relied on the rule in breaking his silence, and all statements made during the course of "making a deal" are inadmissible in future proceedings, whether the statements are offers to confess or offers to plead guilty, and regardless of whether the declarant has been formally charged with a crime. The court may be guided by the established standards of voluntariness in finding inducement by the state. State v. Anderson, 1993-NMSC-077, 116 N.M. 599, 866 P.2d 327. Absent a finding by the court that statements were made with the belief they could not be "held against" the declarant, if a defendant or suspect makes uninduced statements after receiving Miranda warnings (i.e., being told that any statement made may be used against such person in court), there is no reason to presume that such person was motivated to make inculpatory statements in reliance on some rule of inadmissibility. State v. Anderson, 1993-NMSC-077, 116 N.M. 599, 866 P.2d 327. No reliance on rule where crimes admitted on direct. - Although admissions made for purposes of plea bargaining are inadmissible as probative evidence under this rule, since the defendant admitted to previous crimes during direct examination, his reliance on this rule was misplaced. State v. Duncan, 1994-NMCA-030, 117 N.M. 407, 872 P.2d 380. Statements volunteered not protected. - Statements volunteered by the defendant in contacts and letters initiated with authorities are beyond the protection of this section. State v. Fernandez, 1994-NMCA-056, 117 N.M. 673, 875 P.2d 1104. Right to discovery of statement of accomplice. - Even though the statement of the defendant's accomplice made in negotiations of a plea agreement was not admissible against the accomplice at his trial, the state did have a responsibility to provide the statement to the defendant. State v. Setser, 1997-NMSC-004, 122 N.M. 794, 932 P.2d 484. 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 § 517 et seq. Withdrawal of plea of guilty or nolo contendere, before sentence, under Rule 32(d) of Federal Rules of Criminal Procedure, 6 A.L.R. Fed. 665. Withdrawal of plea of guilty or nolo contendere, after sentence, under Rule 32(d) of Federal Rules of Criminal Procedure, 9 A.L.R. Fed. 309. 23 C.J.S. Criminal Law § 882 et seq.; 32 C.J.S. Evidence §§ 398, 399.