N.M. R. Evid. 11-513
N.M. R. Evid. 11-513
Committee commentary. - Paragraph D is patterned after similar rules of evidence in other states recognizing the Supreme Court of the United States' opinion in Baxter v. Palmigiano, 425 U.S. 308 (1976).
[Adopted by Supreme Court Order No. S-1-RCR-2023-00027, effective for all cases pending or filed on or after December 31, 2023.]
ANNOTATIONS The 2013 amendment, approved by Supreme Court Order No. 13-8300-025, effective December 31, 2013, clarified the language of the rule; in Paragraph A, deleted the first sentence, which provided that the claim of privilege could not be commented upon by the court or counsel and added the current first sentence, and in the second sentence, after "may be drawn", deleted "therefrom" and added "from any claim of privilege"; in Paragraph B, deleted "In jury cases, proceedings shall be conducted, to the extent practicable, so as to facilitate the making of" and added "To the extent possible, the court shall conduct jury trials to allow", after "claims of privilege", added "to be made", after "without the", added "jury's", and after "knowledge", deleted "of the jury"; and in Paragraph C, after "privilege is entitled to", deleted "an" and added "a jury" and after "inference may be drawn", deleted "therefrom" and added "from the claim of privilege". The 1993 amendment, effective December 1, 1993, substituted "the court" for "judge" near the end of the first sentence of Paragraph A. A defense witness may not be called before the jury to assert his privilege against self-incrimination for the purpose of having the jury draw inferences from his silence. State v. Saiz, 2008-NMSC-048, 144 N.M. 663, 191 P.3d 521. District attorney may not comment on defendant's failure to testify. State v. Sneed, 1966-NMSC-104, 76 N.M. 349, 414 P.2d 858 (decided before enactment of this rule). Comment by prosecutor on defendant's silence constitutes fundamental error and mandates a new trial, even if defendant fails to timely object. State v. Ramirez, 1982-NMSC-082, 98 N.M. 268, 648 P.2d 307. Comment on alibi not offered during arrest. - It is fundamentally unfair to assure a suspect that silence will carry no penalty and then, when the suspect offers an alibi at trial, suggest to the jury that anyone with that explanation would naturally have offered it at the time of arrest. State v. Garcia, 1994-NMCA-147, 118 N.M. 773, 887 P.2d 767. Currative instruction inadequate. - The use of post-arrest silence is profoundly unfair and prejudicial and would ordinarily not be curable by an instruction. State v. Garcia, 1994-NMCA-147, 118 N.M. 773, 887 P.2d 767. Defendant may waive right to object. - Where prosecutor's comment on defendant's failure to take the stand was made in response to defendant's own argument, defendant, under prior law, waived any right which he might have had to claim violation of privilege against compulsory self-incrimination because of the prosecutor's comment. State v. Paris, 1966-NMSC-039, 76 N.M. 291, 414 P.2d 512. Prosecutor's comments on failure of spouse to testify are improper. State v. Frank, 1979-NMSC-012, 92 N.M. 456, 589 P.2d 1047. If there is a reasonable possibility that the inappropriate remarks of a prosecutor caused a jury to consider the failure of a spouse to testify as evidence against the defendant spouse or caused it to reach a verdict that it otherwise might not have reached, then such arguments are grounds for reversal. State v. Frank, 1979-NMSC-012, 92 N.M. 456, 589 P.2d 1047. Questioning witness outside presence of jury. - A defendant's right to due process was not violated by the trial court's refusal of his request to call his wife as a witness and question her before the jury, where she intended to invoke the privilege against self-incrimination. State v. Crislip, 1990-N MCA-054, 110 N.M. 412, 796 P.2d 1108, overruled on other grounds, Santillanes v. State, 1993-NMSC-012, 115 N.M. 215, 849 P.2d 358. Am. Jur. 2d, A.L.R. and C.J.S. references. - 21 Am. Jur. 2d Criminal Law §§ 705, 940. Adverse presumption or inference based on party's failure to produce or examine spouse - modern cases, 79 A.L.R.4th 694. 23A C.J.S. Criminal Law §§ 1186 to 1188, 1263, 1264; 88 C.J.S. Trial §§ 50, 182, 266, 299; 97 C.J.S. Witnesses § 305; 98 C.J.S. Witnesses § 454.