N.M. R. Evid. 11-412
N.M. R. Evid. 11-412
Committee commentary. - This rule, previously numbered Rule 11-413 NMRA, was renumbered in 2012 as Rule 11-412 NMRA, and Rule 11-412 NMRA was renumbered as Rule 11-413 NMRA. The renumbering was adopted because the subject matter of renumbered Rule 11-412 is now consistent with Federal Rule 412, although the rule is substantively different. Changes to the renumbered rule were intended to be stylistic only and not intended to change the rule in any substantive way.
[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. This rule, which was previously numbered as Rule 11-413 NMRA, was renumbered as Rule 11-412 NMRA. De novo review is the proper standard of review for analyzing cases implicating both the rape shield law and the Confrontation Clause. State v. Montoya, 2014-NMSC-032, rev'g 2013-NMCA-076, 306 P.3d 470. Analysis of cases implicating both the rape shield law and the Confrontation Clause. - When a defendant makes a claim that the rape shield law bars evidence implicating the defendant's confrontation rights, the district court must first identify a theory of relevance implicating the defendant's constitutional right to confrontation and then weigh whether evidence elicited under that theory would be more prejudicial than probative. State v. Montoya, 2014-NMSC-032, rev'g 2013-NMCA-076, 306 P.3d 470. Application of rape shield law violated Confrontation Clause. - Where defendant and the victim, who had a sexual relationship for two years, began arguing about a telephone call that defendant had received; during the argument, defendant indicated to the victim that defendant wanted sex; defendant and the victim went into defendant's bedroom where defendant got on top of the victim and tried to remove the victim's clothes; the victim told the defendant "no" several times and pushed and kicked defendant until defendant stopped making sexual advances; defendant was indicted for kidnapping with intent to commit a sexual offense; the district court refused to allow defendant on cross-examination to ask the victim whether the victim and defendant had a long-standing sexual relationship and whether they had a history of engaging in sex after an argument as "make-up sex" to resolve disputes for the purpose of showing that defendant never intended to sexually assault the victim but was pursuing consensual "make-up sex" as defendant and the victim had done after arguments in the past; the victim was the sole material witness against defendant and the only witness who could provide testimony necessary for defendant's theory of the case; and the evidence was relevant to defendant's defense and would not have had a prejudicial impact on the victim, the district court's ruling violated defendant's confrontation right because it denied defendant an opportunity to present a full and fair defense. State v. Montoya, 2014-NMSC-032, rev'g 2013-NMCA-076, 306 P.3d 470. Standard of review for cases involving the rape shield rule and the Confrontation Clause. - There are three steps and three standards of review that relate to the application of the rape shield rule. First, the court reviews de novo whether a defendant has presented a theory of admissibility that implicates the defendant's confrontation rights. If the defendant has, the court undertakes a de novo balancing of the State's interest in excluding the evidence against the defendant's constitutional rights to determine if the district court acted within the wide scope of its discretion to limit cross-examination. If the Confrontation Clause is not implicated or if there has been no Confrontation Clause violation, the court examines whether the district court has abused its discretion in its application of the rule itself. State v. Montoya, 2013-NMCA-076, rev'd by 2014-NMSC-032. Application of the rape shield rule did not implicate the Confrontation Clause. - Where defendant and the victim had been arguing; defendant wanted to have sex with the victim, but the victim refused; defendant got on top of the victim and attempted to remove the victim's clothing; the victim pushed and kicked defendant until defendant stopped; defendant did not force the victim to have sex; defendant was charged with kidnapping and attempt to commit criminal sexual penetration; to show that defendant did not have specific intent to commit the crimes, defendant sought to introduce evidence of the sexual history of the victim and defendant to show that the defendant's intent and the victim's belief was that defendant was trying to have sex to "make-up" just as they had done in the past; the district court precluded defendant from inquiring into the party's sexual history; at trial, the victim testified that defendant and the victim had been friends for two years, the victim believed that defendant would not penetrate the victim unless the victim consented, and the victim perceived defendant's actions as an attempt to obtain the victim's consent to have sex; defendant claimed that defendant's confrontation rights had been violated because defendant was unable to challenge an opposing version of the facts, the district court's exclusion of the evidence did not implicate or violate the Confrontation Clause because defendant sought not to confront the victim, but to use the victim's testimony as evidence unrelated to the truth or accuracy of the victim's testimony and the district court did not abuse its discretion in excluding of evidence of the history of victim's and defendant's sexual relationship. State v. Montoya, 2013-NMCA-076, rev'd by 2014-NMSC-032. Witness use immunity and transactional immunity distinguished. - Transactional immunity involves a promise by prosecutors that a witness will not be prosecuted for crimes related to the events about which the witness testifies. Transaction immunity affords the witness immunity related to the entire transaction, not just the witness's testimony. Transactional immunity is a legislative prerogative defined by statute. Under a grant of use immunity, the prosecution promises only to refrain from using the testimony in any future prosecution, as well as any evidence derived from the protected testimony. Under use immunity, the prosecution may proceed with charges against the witness so long as it does not use or rely on the witness's testimony or its fruits. The grant of use immunity is a power that the Supreme Court defines in the exercise of its inherent judicial authority. State v. Belanger, 2009-NMSC-025, 146 N.M. 357, 210 P.3d 783, rev'g State v. Belanger, 2007-NMCA-143, 142 N.M. 751, 170 P.3d 530 and overruling State v. Cheadle, 1983-NMSC-093, 101 N.M. 282, 681 P.2d 708; State v. Baca, 1997-NMSC-045, 124 N.M. 55, 946 P.2d 1066; State v. Sanchez, 1982-NMCA-105, 98 N.M. 428, 649 P.2d 496. Purpose of rule. - This rule and Rule 5-116 NMRA, which grant the judicial branch the authority to immunize a witness, strike a permissible balance between the state's interest in prosecuting crime and private rights under the Fifth Amendment. State v. Brown, 1998-NMSC-037, 126 N.M. 338, 969 P.2d 313. Use immunity under New Mexico law is available to witnesses only at request of the state and there is no statutory or judicial provision for a defendant's invocation of use immunity for a witness; defendant suffered no prejudice necessary to find ineffective assistance of counsel as result of failure of his attorney to find use immunity statute where defendant did not demonstrate that prosecution would have granted witness immunity, thereby permitting witness to testify even if defense attorney had discovered the statute. McGee v. Crist, 739 F.2d 505 (10th Cir. 1984). Use of immunized testimony precluded. - Section 31-6-15 NMSA 1978, and its implementing rules, Rule 5-116 NMRA and this rule, allow the government to compel a witness to testify and then prosecute the witness for the crimes mentioned in the compelled testimony, as long as neither the testimony itself nor any information directly or indirectly derived from the testimony is used in the prosecution. However, it is not enough for the prosecutor to simply assert that all evidence to be used at trial was obtained prior to the defendant's immunized testimony; instead the state should have included testimony from key witnesses, along with testimony from the prosecutor and the investigators, that the witnesses had not had access or otherwise been exposed to the defendant's immunized testimony. State v. Vallejos, 1994-NMSC-107, 118 N.M. 572, 883 P.2d 1269. Law reviews. - For note, "Criminal Procedure - The Fifth Amendment Privilege Against Self-Incrimination Applies to Juveniles in Court-Ordered Psychological Evaluations: State v. Christopher P.," see 23 N.M.L. Rev. 305 (1993). Am. Jur. 2d, A.L.R. and C.J.S. references. - 21 Am. Jur. 2d Criminal Law §§ 210 to 216, 221, 222; 81 Am. Jur. 2d Witnesses §§ 862, 863, 900. Right of immune jury witness to obtain access to government affidavits and other supporting materials in order to challenge legality of court-ordered wiretap, 60 A.L.R. Fed. 706. 98 C.J.S. Witnesses § 439.