N.M. R. Evid. 11-501
Unless required by the constitution, these rules, or other rules adopted by the supreme court, no person has a privilege to
N.M. R. Evid. 11-501
ANNOTATIONS The 2013 amendment, approved by Supreme Court Order No. 13-8300-025, effective December 31, 2013, simplified the language of the rule; in the first sentence, deleted "Except as otherwise" and added "Unless", after "required by", deleted "and except as provided in", and after "these rules, or", deleted "in"; in Paragraphs A and B, at the end of the sentence, deleted "or"; and in Paragraph D, after "being a witness", deleted "or".
For privilege against self-incrimination, see N.M. Const., art. II, § 15. For privileged communications generally, see Section 38-6-6 NMSA 1978. Common-law evidentiary privileges abrogated. - This rule is very different from Rule 501 of the Federal Rules of Evidence, which states that privileges are "governed by the privileges of the common law." The fact that New Mexico did not follow the approach of congress but instead limited the privileges available to those recognized by the constitution, the Rules of Evidence or other rules of the supreme court manifests the abrogation and inapplicability of the common-law evidentiary privileges. State ex rel. Attorney Gen. v. First Judicial Dist. Court, 1981-NMSC-053, 96 N.M. 254, 629 P.2d 330. Common law privileges not recognized. - Given the clear directive of 11-501 NMRA, the court will not recognize common law privileges. Estate of Romero v. City of Santa Fe, 2006-NMSC-028, 139 N.M. 761, 137 P3d 611. No law enforcement privilege. - Neither the Constitution nor the Rules of Evidence recognizes a law enforcement privilege that protects law enforcement investigative materials from discovery. Estate of Romero v. City of Santa Fe, 2006-NMSC-028, 139 N.M. 761, 137 P3d 611. Conflict between rules and statutes resolved in favor of rules. - Any conflict between rules of evidence and statutes that relate to procedure must be resolved in favor of the rules. Maestas v. Allen, 1982-NMSC-001, 97 N.M. 230, 638 P.2d 1075. Victim Counselor Confidentiality Act is consistent with the psychotherapist-patient privilege in this rule and it is to be given effect. Albuquerque Rape Crisis Ctr. v. Blackmer, 2005-NMSC-032, 138 N.M. 398, 120 P.3d 820. Statutory privilege invalid. - Under this rule, no one has a privilege, unless provided by the constitution, the Rules of Evidence or a supreme court rule, to refuse to be a witness or to disclose any matter. Indeed, if any portion of the Medical Malpractice Act or its internal operating rules could be construed to grant such a privilege, it would be an invalid provision under this rule. Salazare v. St. Vincent Hosp., 1980-NMCA-095, 96 N.M. 409, 631 P.2d 315, aff'd in part and rev'd in part, 1980-NMSC-124, 95 N.M. 147, 619 P.2d 823. If Section 40-5-11 NMSA 1978 (now repealed) is an attempt by the legislature to create an evidentiary privilege, this statutory provision must fall because it is in conflict with the New Mexico Rules of Evidence. Maestas v. Allen, 1982-NMSC-001, 97 N.M. 230, 638 P.2d 1075. No statutory privilege created. - Section 41-9-5 NMSA 1978, establishing the confidentiality of records of a health care provider review organization does not create an evidentiary privilege in civil litigation, and thus does not come into direct conflict with this rule. Southwest Cmty. Health Servs. v. Smith, 1988-NMSC-035, 107 N.M. 196, 755 P.2d 40. Statutory privilege unconstitutional. - In view of the clear and unambiguous assertion of the supreme court in this rule that no person has a privilege, except as provided by constitution or rule of the court, and since under N.M. Const., art. VI, § 3, and art. III, § 1, power to prescribe rules of evidence and procedure is vested exclusively in the supreme court, and legislature lacks power to prescribe rules by statute, the privilege purportedly created by Section 38-6-7 NMSA 1978 (relating to news sources and information) is constitutionally invalid and cannot be relied upon or enforced in judicial proceedings. Ammerman v. Hubbard Broadcasting, Inc., 1976-NMSC-031, 89 N.M. 307, 551 P.2d 1354, cert. denied, 436 U.S. 906, 98 S. Ct. 2237, 56 L. Ed. 2d 404 (1978). Patient agreeing to doctor's communication when attorney is present. - Although there is no longer a physician-patient privilege in New Mexico, when the patient objects to ex parte communications between his doctor and anyone else, there is no logical reason for ordering that type of discovery, disclosure, or communication - particularly when the patient willingly agrees that the communication may occur when his attorney is also present. Smith v. Ashby, 1987-NMSC-098, 106 N.M. 358, 743 P.2d 114. Physician's affidavit held not covered by privilege. - Affidavit of physician who had previously treated plaintiff submitted in support of defendant's motion for partial summary judgment was properly obtained and submitted since testimony was not covered by physician-patient privilege. Trujillo v. Puro, 1984-NMCA-050, 101 N.M. 408, 683 P.2d 963. Law reviews. - For article, "Separation of Powers and the Judicial Rule-Making Power in New Mexico: The Need for Prudential Restraints," see 15 N.M.L. Rev. 407 (1985). Am. Jur. 2d, A.L.R. and C.J.S. references. - 81 Am. Jur. 2d Witnesses §§ 285, 286, 290. Right of one against whom testimony is offered to invoke privilege of communication between others, 2 A.L.R.2d 645. Admissibility in divorce action for adultery of wife's statement that husband was not father of her child, 4 A.L.R.2d 567. Conversations between husband and wife relating to property or business as within rule excluding private communications between them, 4 A.L.R.2d 835. "Communications" within testimonial privilege of confidential communications between husband and wife as including knowledge derived from observation by one spouse of acts of other spouse, 10 A.L.R.2d 1389. Inferences arising from refusal of witness other than accused to answer question on the ground that answer would tend to incriminate him, 24 A.L.R.2d 895. Construction and effect of statute removing or modifying, in personal injury actions, patient's privilege against disclosure by physician, 25 A.L.R.2d 1429. Dead man's statute as applicable to spouse of party disqualified from testifying, 27 A.L.R.2d 538. Court's power to determine, upon government's claim of privilege, whether official information contains state secrets or other matters disclosure of which is against public interest, 32 A.L.R.2d 391. Effect of divorce or annulment on competency of one former spouse as witness against other in criminal prosecution, 38 A.L.R.2d 570. Privilege of communications by or to nurse or attendant, 47 A.L.R.2d 742. Party's waiver of privilege as to communications with counsel by taking stand and testifying, 51 A.L.R.2d 521. Right of physician, notwithstanding physician-patient privilege, to give expert testimony based on hypothetical question, 64 A.L.R.2d 1056. Privilege as to communications to attorney in connection with drawing of will, 66 A.L.R.2d 1302, 75 A.L.R.4th 1144. Waiver of attorney-client privilege by personal representative or heir of deceased client or by guardian of incompetent, 67 A.L.R.2d 1268. Calling or offering accused's spouse as witness for prosecution as prejudicial misconduct, 76 A.L.R.2d 920. Admissibility of inculpatory statements made in presence of accused to which he refuses to answer on advice of counsel, 77 A.L.R.2d 463. Husband or wife as competent witness for or against cooffender with spouse, 90 A.L.R.2d 648. Federal courts as following law of forum state with respect to privileged communications, 95 A.L.R.2d 320. Persons other than client or attorney affected by, or included within, attorney-client privilege, 96 A.L.R.2d 125, 31 A.L.R.4th 1226. Who may waive privilege of confidential communication to physician by person since deceased, 97 A.L.R.2d 393. Right of corporation to assert attorney-client privilege, 98 A.L.R.2d 241, 26 A.L.R.5th 628, 27 A.L.R.5th 76. Testimony as to communications or observations as to mental condition of patient treated for other condition, 100 A.L.R.2d 648. Applicability of attorney-client privilege to communications with respect to contemplated tortious acts, 2 A.L.R.3d 861. Waiver of privilege as regards one physician as a waiver as to other physicians, 5 A.L.R.3d 1244. Applicability in criminal proceedings of privilege as to communications between physician and patient, 7 A.L.R.3d 1458. Implied obligation not to use trade secrets or similar confidential information disclosed during unsuccessful negotiations for sale, license or the like, 9 A.L.R.3d 665. Attorney-client privilege as affected by communications between several attorneys, 9 A.L.R.3d 1420. Attorney-client privilege as affected by its assertion as to communications, or transmission of evidence relating to crime already committed, 16 A.L.R.3d 1029. Disclosure of name, identity, address, occupation or business of client as violation of attorney-client privilege, 16 A.L.R.3d 1047. Pretrial testimony or disclosure on discovery by party to personal injury action as to nature of injuries or treatment as waiver of physician-patient privilege, 25 A.L.R.3d 1401. Power of trustee in bankruptcy to waive privilege of communications available to bankrupt, 31 A.L.R.3d 557. Propriety and prejudicial effect of comment or instruction by court with respect to party's refusal to permit introduction of privileged testimony, 34 A.L.R.3d 775. Communications by corporation as privileged in stockholders' action, 34 A.L.R.3d 1106. Assertion of privilege in pretrial discovery proceedings as precluding waiver of privilege at trial, 36 A.L.R.3d 1367. Admissibility of physician's testimony as to patient's statements or declarations, other than res gestae, during medical examination, 37 A.L.R.3d 778. Privilege against self-incrimination as ground for refusal to produce noncorporate documents in possession of person asserting privilege, but owned by another, 37 A.L.R.3d 1373. Witness' refusal to testify on ground of self-incrimination as justifying reception of evidence of prior statements or admissions, 43 A.L.R.3d 1413. Privilege, in judicial or quasi-judicial proceedings, arising from relationship between psychiatrist or psychologist and patient, 44 A.L.R.3d 24. Who is "clergyman" or the like entitled to assert privilege attaching to communications to clergymen or spiritual advisers, 49 A.L.R.3d 1205. Communications to social worker as privileged, 50 A.L.R.3d 563. Right of member, officer, agent or director of private corporation or unincorporated association to assert personal privilege against self-incrimination with respect to production of corporate books or records, 52 A.L.R.3d 636, 87 A.L.R. Fed. 177. Libel and slander: employer's privilege as to communications to news media concerning employees, 52 A.L.R.3d 739. Defense attorney as witness for his client in state criminal case, 52 A.L.R.3d 887. Confidentiality of records as to recipients of public welfare, 54 A.L.R.3d 768. Applicability of attorney-client privilege to matters relating to drafting of nonexistent or unavailable nontestamentary documents, 55 A.L.R.3d 1322. Admissibility, in criminal prosecution, of evidence obtained by electronic surveillance of prisoner, 57 A.L.R.3d 172. Libel and slander: privileged nature of communications made in course of grievance or arbitration procedure provided for by collective bargaining agreement, 60 A.L.R.3d 1041. Libel and slander: privileged nature of communication to other employees or employees' union of reasons for plaintiff's discharge, 60 A.L.R.3d 1080. Matters to which the privilege covering communications to clergyman or spiritual adviser extends, 71 A.L.R.3d 794. Privilege of witness to refuse to give answers tending to disgrace or degrade him or his family, 88 A.L.R.3d 304. Competency of one spouse to testify against other in prosecution for offense against child of both or either, 93 A.L.R.3d 1018. Privilege of newsgatherer against disclosure of confidential sources or information, 99 A.L.R.3d 37. Testimonial privilege for confidential communications between relatives other than husband and wife - state cases, 6 A.L.R.4th 544. Testimony before or communications to private professional society's judicial commission, ethics committee, or the like, as privileged, 9 A.L.R.4th 807. Physician-patient privilege as extending to patient's medical or hospital records, 10 A.L.R.4th 552. Privileged communications between accountant and client, 33 A.L.R.4th 539. Presence of child at communication between husband and wife as destroying confidentiality of otherwise privileged communication between them, 39 A.L.R.4th 480. Physician's tort liability for unauthorized disclosure of confidential information about patient, 48 A.L.R.4th 668. Insured-insurer communications as privileged, 55 A.L.R.4th 336. Crimes against spouse within exception permitting testimony by one spouse against other in criminal prosecution - modern state cases, 74 A.L.R.4th 223. Competency of one spouse to testify against other in prosecution for offense against third party as affected by fact that offense against spouse was involved in same transaction, 74 A.L.R.4th 277. What constitutes privileged communications with preparer of federal tax returns so as to render communication inadmissible in federal tax prosecution, 36 A.L.R. Fed. 686. Situations in which federal courts are governed by state law of privilege under Rule 501 of Federal Rules of Evidence, 48 A.L.R. Fed. 259. Propriety of court's failure or refusal to strike direct testimony of government witness who refuses, on grounds of self-incrimination, to answer questions on cross-examination, 55 A.L.R. Fed. 742. "Scholar's privilege" under Rule 501 of Federal Rules of Evidence, 81 A.L.R. Fed. 904. Academic peer review privilege in federal court, 85 A.L.R. Fed. 691. Waiver of evidentiary privilege by inadvertent disclosure - federal law, 159 A.L.R. Fed. 153. Views of United States Supreme Court as to attorney-client privilege, 159 A.L.R. Fed. 243. 97 C.J.S. Witnesses § 252; 98 C.J.S. Witnesses §§ 430 to 457.