N.M. R. Evid. 11-611
N.M. R. Evid. 11-611
Committee commentary. - The language of Rule 11-611 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.
[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, modified the title of the rule and rewrote the rule to make stylistic changes. The 1993 amendment, effective December 1, 1993, substituted "court" for "judge" in the paragraph heading and near the beginning of Paragraph A and substituted "the witness's" for "his" in Paragraph C. Compiler's notes. - This rule is similar to Rule 611 of the Federal Rules of Evidence. This rule, in conjunction with Rule 11-607 NMRA, is deemed to supersede former Rule 43(b), N.M.R. Civ. P. Those cases decided pursuant to former Rule 43(b) N.M.R. Civ. P., and relating to the subject matter of this rule, are annotated below.
For rule regarding applicability of the Rules of Evidence to the Rules of Criminal Procedure, see Rule 5-613 NMRA. I. GENERAL CONSIDERATION. Former Rule 43(b), N.M.R. Civ. P. afforded only means of calling opposite or adverse party. Hall v. Stiles, 1953-NMSC-041, 57 N.M. 281, 258 P.2d 386. Party is not bound by testimony of adverse witness whom he has called for examination. Carney v. McGinnis, 1958-NMSC-001, 63 N.M. 439, 321 P.2d 626. Rules of Evidence are applicable to preliminary examinations. - Witnesses may be cross-examined and their credibility and character tested. State v. Massengill, 1983-NMCA-001, 99 N.M. 283, 657 P.2d 139). When leading questions permitted. - Leading questions are often permissible when a witness is immature, timid or frightened. State v. Orona, 1979-NMSC-011, 92 N.M. 450, 589 P.2d 1041. Leading questions on cross-examination. - The fact that counsel is not permitted to lead the opposing party in all instances does not establish abuse. Jim v. Budd, 1987-NMCA-079, 107 N.M. 489, 760 P.2d 782. Leading questions not guise for testimony by prosecutor. - Developing testimony by the use of leading questions must be distinguished from substituting the words of the prosecutor for the testimony of the witness, and where the trial court permitted every word describing the alleged offense to come from the prosecuting attorney rather than from the witness, it abused its discretion in such a manner as to violate principles of fundamental fairness. State v. Orona, 1979-NMSC-011, 92 N.M. 450, 589 P.2d 1041. Leading questions by judge. - In a child sexual abuse case, where the court drew a stick figure to help the victim testify, the drawing was relevant, and the court's leading questions to the victim tended to clarify the evidence. State v. Benny E., 1990-NMCA-052, 110 N.M. 237, 794 P.2d 380. Mere declaration that person is being called as adverse witness, absent a showing of prejudice, does not constitute reversible error. Hall v. Stiles, 1953-NMSC-041, 57 N.M. 281, 258 P.2d 386. Probative value of adverse witness's testimony determined by fact finder. - Testimony of an adverse witness is evidence in the case to be weighed with all other evidence and given such probative value as the fact finder deems appropriate. Hutchinson v. Boney, 1963-NMSC-040, 72 N.M. 194, 382 P.2d 525. II. CONTROL BY JUDGE. Cross-examination cannot go beyond subject-matter raised on direct. - Where, at the trial, appellants in personal injury suit called appellee as an adverse witness and, on direct examination, gained appellee's testimony that appellee was the defendant in the case; that he was not present at the restaurant at the time appellant said she was injured; that he was the sole owner and operator of the restaurant premises; and that he owned all of the furnishings in the restaurant, and where despite appellee's objections, the trial court allowed further testimony on cross-examination concerning the photographs of restaurant floor, and further testimony as to the restaurant floor, the restaurant chairs and the circumstances surrounding the accident, this matter went beyond the subject-matter of direct examination and is contrary to the express language of this rule. Simon v. Akin, 1968-NMSC-193, 79 N.M. 689, 448 P.2d 795. Formerly scope of cross-examination rested largely within trial court's sound discretion. - Prior to enactment of rules of evidence, court of appeals held that the scope and extent of cross-examination rested largely within the sound discretion of the trial court. State v. Hamilton, 1973-NMCA-009, 85 N.M. 87, 509 P.2d 562, cert. denied, 85 N.M. 86, 509 P.2d 561; Francis v. Johnson, 1970-NMCA-079, 81 N.M. 648, 471 P.2d 682. Judge's exercise of control is not judicial bias. - The court established a procedure whereby objections would be stated concisely and any further argument would be elicited by the court only if necessary. Where counsel repeatedly attempted to circumvent this procedure and argue the merits of the objection in front of the jury, the judge admonished them. Judicial bias must be personal and cannot be predicated upon enforcement of the rules of criminal procedure. State v. Fernandez, 1994-NMCA-056, 117 N.M. 673, 875 P.2d 1104. Trial court may cut off improper action by counsel whose own testimony was improper and where cross-examination of a witness was a part of extended harassment of the witness and irrelevant. State v. Fuentes, 1978-NMCA-028, 91 N.M. 554, 577 P.2d 452, cert. denied, 91 N.M. 610, 577 P.2d 1256. Cumulative, prejudicial evidence excluded. - Where testimony as to a witness' purported heroin use would not add to the testimony already before the jury that he was motivated by money, the trial court, in its discretion, may properly exclude the tendered testimony which is cumulative. State v. Lovato, 1978-NMCA-030, 91 N.M. 712, 580 P.2d 138, cert. denied, 91 N.M. 751, 580 P.2d 972. Testimony by child. - In a prosecution for criminal sexual penetration of a minor, the trial court did not err by allowing the victim to hold a teddy bear while giving testimony. State v. Marquez, 1998-NMCA-010, 124 N.M. 409, 951 P.2d 1070, cert. denied, 124 N.M. 311, 950 P.2d 284. Trial court has right to exercise reasonable control over interrogation of witnesses to make the interrogation and presentation effective for the ascertainment of truth, to avoid needless consumption of time and to protect witnesses from harassment or undue embarrassment. State v. McCarter, 1980-NMSC-003, 93 N.M. 708, 604 P.2d 1242. The court can exercise reasonable control over cross-examination to more effectively seek the truth and to avoid needless consumption of time. Empire West Cos. v. Albuquerque Testing Labs, Inc., 1990-NMSC-096, 110 N.M. 790, 800 P.2d 725. Within discretion of trial court whether to permit leading questions. - Under Paragraph C, whether to permit counsel to interrogate witnesses with leading questions is wholly within the trial court's discretion. Jojola v. Baldridge Lumber Co., 1981-NMCA-106, 96 N.M. 761, 635 P.2d 316. Trial court could not be found to have abused its discretion in allowing leading questions, absent any specific analysis by the complaining party as to why the questions were improper. Richardson v. Rutherford, 1990-NMSC-015, 109 N.M. 495, 787 P.2d 414. Discretion of trial court to sustain objections. - The trial court may, in its discretion, sustain objections to leading questions asked by a lawyer on cross-examination of a hostile witness, or his client called as a hostile witness or adverse party by the opponent. Jojola v. Baldridge Lumber Co., 1981-NMCA-106, 96 N.M. 761, 635 P.2d 316. Court may admonish prosecution for not having expert explain technical terms. - The trial court may admonish the prosecution, outside the presence of the jury, for not having its ballistics expert fully explain the technical terms that he used in his testimony to the jury, and then allow the prosecution to reopen its case to elicit the information, as long as the court remains impartial. State v. Crump, 1981-NMSC-134, 97 N.M. 177, 637 P.2d 1232. Limiting reading of diary entries to jury. - The trial court did not abuse its discretion in limiting the number of entries from the defendant's diaries which could be read to the jury and explained by the defendant, where there were over 1600 entries in the diaries of defendant and all of the diaries were admitted into evidence and available to the jury. State v. Hovey, 1987-NMSC-080, 106 N.M. 300, 742 P.2d 512. Responsibility of trial court to determine when cross-examination should be limited. - The trial court is allowed a broad discretion in controlling the extent of cross-examination of an accused directed at testing his credibility. The primary responsibility is on the trial court to determine when the cross-examination should be limited, because the legitimate probative value on the credibility of the accused is outweighed by its illegitimate tendency, effect or purpose to prejudice him as a defendant. The discretion of the trial court in making this determination will not be disturbed on appeal, unless the appellate court can say the trial judge's action was obviously erroneous, arbitrary and unwarranted. State v. Garcia, 1971-NMCA-155, 83 N.M. 262, 490 P.2d 1235. The trial court has the right to control and limit cross-examination of a witness, and the exercise of discretion in controlling the mode of interrogation will not be disturbed except upon a showing of abuse. Padilla v. Hooks Int'l, Inc., 1982-NMCA-162, 99 N.M. 121, 654 P.2d 574. Extent of cross-examination rests largely within discretion of trial court. State v. Quintana, 1961-NMSC-108, 69 N.M. 51, 364 P.2d 120. Trial court's responsibility to properly limit extent of cross-examination. - The trial court is allowed a broad discretion in controlling the extent of cross-examination of an accused directed at testing his credibility. The primary responsibility is on the trial court to determine when the cross-examination should be limited, because the legitimate probative value on the credibility of the accused is outweighed by its illegitimate tendency, effect or purpose to prejudice him as a defendant. The discretion of the trial court in making this determination will not be disturbed on appeal, unless the appellate court can say the trial judge's action was obviously erroneous, arbitrary and unwarranted. State v. Williams, 1966-NMSC-145, 76 N.M. 578, 417 P.2d 62. Court intervention to prevent improper questioning not undue interference notwithstanding counsel's failure to object. - Where trial court intervened during defense counsel's direct examination of plaintiff to prevent, inter alia, improper questioning, no undue judicial interference occurred, notwithstanding failure of plaintiff's own counsel to object. Regenold v. Rutherford, 1984-NMCA-021, 101 N.M. 165, 679 P.2d 833. Trial court need not weigh conflicting evidence in dismissing case. - Where testimony of an adverse witness was in part conflicting with the testimony adduced from other of plaintiffs' witnesses, trial court did not have the right and the duty, in dismissing the case, to weigh such conflicting evidence. Carney v. McGinnis, 1958-NMSC-001, 63 N.M. 439, 321 P.2d 626. Appellate issue is abuse of discretion. - The manner of cross-examination to test credibility or bias of a witness is largely within the discretion of the trial court, and where the tendered cross-examination has been denied, the appellate issue is whether the trial court's ruling was an abuse of discretion. State v. Davis, 1979-NMCA-015, 92 N.M. 563, 591 P.2d 1160; State v. Melton, 1984-NMCA-115, 102 N.M. 120, 692 P.2d 45. The exercise of the judge's discretion in controlling the order of witnesses or the mode of interrogation will not be disturbed except upon a showing of abuse of that discretion. State v. Smith, 1979-NMSC-020, 92 N.M. 533, 591 P.2d 664. No error in rulings on cross-examination or attorney's arguments. State v. Muise, 1985-NMCA-090, 103 N.M. 382, 707 P.2d 1192. III. SCOPE OF CROSS-EXAMINATION. Party must be allowed to test credibility on cross-examination. - While the extent to which cross-examination may be allowed is largely within the discretion of the trial court, the right to cross-examine cannot be so restricted as to wholly deprive a party of the opportunity to test the credibility of a witness. State v. Curtis, 1974-NMCA-140, 87 N.M. 128, 529 P.2d 1249. Where testimony of a codefendant was virtually immune from a test of credibility due to his refusal to answer defense counsel's question on fifth amendment grounds, so that the defendant was effectively denied the opportunity to show that the codefendant might be lying or a reason why he might want to lie, in other words, the defendant's sixth amendment right to be confronted with the witnesses against him was denied, the rights could not be balanced, since they stand on equal footing and the issue must be resolved in favor of both rights, therefore mandating a mistrial. State v. Curtis, 1974-NMCA-140, 87 N.M. 128, 529 P.2d 1249. Cross-examination extends to matters that may modify, supplement, contradict, rebut or make clear facts testified to by a witness. State v. Baca, 1970-NMCA-075, 81 N.M. 686, 472 P.2d 651, cert. denied, 81 N.M. 721, 472 P.2d 984; Jaramillo v. Fisher Controls Co., 1985-NMCA-008, 102 N.M. 614, 698 P.2d 887 (decided under former law). Scope may not be expanded to allow irrelevant or prejudicial evidence. - It is within the discretion of the trial court to expand the scope of cross-examination as long as inquiry into additional matters is conducted as if on direct examination, but the trial court may not admit evidence which is otherwise inadmissible because it is irrelevant, or if its probative value is substantially outweighed by the danger of unfair prejudice. State v. Martin, 1984-NMSC-077, 101 N.M. 595, 686 P.2d 937. Attorney of party called as witness may not introduce new matters on cross-examination. - When a party is called by his opponent as an adverse witness, the party's attorney may not, on cross-examination, introduce new matters, unrelated to the direct examination, which constitute his own case or defense. Jojola v. Baldridge Lumber Co., 1981-NMCA-106, 96 N.M. 761, 635 P.2d 316. Cross-examination not unreasonably restricted. - Contention that appellant was unreasonably restricted in his cross-examination of the witness is unfounded when each of the questions in issue was elicited and obtained during the course of other interrogation and appellant had the opportunity to cross-examine the witness and did so at length. State v. Holly, 1968-NMCA-075, 79 N.M. 516, 445 P.2d 393 (decided before enactment of this rule). Where, after an investigating officer completed his testimony, the defendant failed to inform the trial court of any new matters brought out on redirect, and defendant waited until his case-in-chief to request the trial court to order the officer's presence for further cross-examination, the defendant waived any error in the trial court's refusal to order the officer to return for further cross-examination. State v. Gibbins, 1990-NMCA-013, 110 N.M. 408, 796 P.2d 1104. Formerly, permissible extent of cross- examination within trial court's discretion. - Prior to enactment of rules of evidence, the permissible extent of this cross-examination was within the discretion of the trial court. State v. Apodaca, 1970-NMCA-065,81 N.M. 580, 469 P.2d 729 (decided under former law). Formerly, extent of cross-examination generally limited to subject matter of direct examination. - Prior to enactment of New Mexico rules of evidence, the right to cross-examine generally was limited to the subject matter of the direct examination. However, the scope or extent of cross-examination rested largely in the sound discretion of the trial court. State v. Sanchez, 1968-NMCA-091, 79 N.M. 701, 448 P.2d 807. Discretionary judgment only disturbed on appeal if discretion abused. - The limits of cross-examination are within the discretion of the trial court and will be disturbed on appeal only if that discretion is abused. State v. Wesson, 1972-NMCA-013, 83 N.M. 480, 493 P.2d 965. The scope and extent of cross-examination is a matter within the discretion of the trial court. The trial court's decision will not be disturbed absent an abuse of discretion. Empire West Cos. v. Albuquerque Testing Labs, Inc., 1990-NMSC-096, 110 N.M. 790, 800 P.2d 725. Question concerning defendant's silence on certain facts at arrest admissible. - Questioning defendant on cross-examination, after he testified that he had found certain stolen property in an abandoned house, about why he had not told the police the same thing when he was arrested was not an improper comment on his silence at the time of arrest. When arrested the defendant did not remain silent, not only stating that he did not know anything, but also offering an explanation which tended to deny his possession; the question was proper cross-examination under this rule and was admissible for the purpose of impeaching defendant's credibility by showing prior inconsistent statements. State v. Olguin, 1975-NMCA-132, 88 N.M. 511, 542 P.2d 1201. While evidence of silence at the time of arrest generally may not be very probative of a defendant's credibility, in circumstances where a defendant testifies to an exculpatory version of events and claims to have told the police the same version upon arrest, cross-examination was probative of the defendant's credibility and constituted acceptable impeachment. State v. Gutierrez, 2003-NMCA-077, 133 N.M. 797, 70 P.3d 787, cert. denied, 133 N.M. 771, 70 P.3d 761. Extrinsic evidence of motive of witness to testify falsely is admissible and a witness may be cross-examined as to such a motive. State v. Lovato, 1978-NMCA-030, 91 N.M. 712, 580 P.2d 138, cert. denied, 91 N.M. 751, 580 P.2d 972. Attack on credibility governed by Rule 11-608. - If asserted motive evidence is, in fact, no more than evidence of character and conduct attacking the credibility of a witness, its admissibility would be governed by Rule 11-608. State v. Lovato, 1978-NMCA-030, 91 N.M. 712, 580 P.2d 138, cert. denied, 91 N.M. 751, 580 P.2d 972. Civil action by victim is proper subject of inquiry. - Bias of a witness is always relevant. Therefore, pendency of a civil action by a prosecuting witness seeking damages for an assault being tried in a criminal action is a proper subject of inquiry; however, the trial court did not err in prohibiting defendant in an aggravated battery prosecution from questioning of a witness (the victim) concerning an unidentified civil suit where counsel gave the court no information about the suit, made no tender of evidence and never informed the court that the witness himself had anything to do with the suit. State v. Santillanes, 1974-NMCA-092, 86 N.M. 627, 526 P.2d 424. Prejudicial error not allowing defendant opportunity to develop polygraph scoring responses. - Where the defendant was not allowed by the trial judge to develop any relationship between a polygraph chart, which recorded the examinee's responses to questions asked by the examiner, and the examiner's scoring of the responses so recorded, while at the same time it was recognized that further cross-examination might be of assistance to defendant, this was an abuse of discretion and prejudicial error. State v. Urioste, 1980-NMCA-103, 94 N.M. 767, 617 P.2d 156. Evidence of defendant's wife's residence with drug rehabilitation organization held irrelevant in his prosecution for aggravated battery. State v. Mills, 1980-NMCA-005, 94 N.M. 17, 606 P.2d 1111, cert. denied, 94 N.M. 628, 614 P.2d 545. Trial court did not abuse its discretion in terminating cross-examination of a witness after several hours, where the court did not foreclose inquiry into any specific area, but allowed latitude to pursue various issues at length. Empire West Cos. v. Albuquerque Testing Labs, Inc., 1990-NMSC-096, 110 N.M. 790, 800 P.2d 725. 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, "Lawyers, Linguists, Story-Tellers, and Limited English-Speaking Witnesses," see 27 N.M.L. Rev. 77 (1997). Am. Jur. 2d, A.L.R. and C.J.S. references. - 29 Am. Jur. 2d Evidence § 386 et seq.; 31A Am. Jur. 2d Expert and Opinion Evidence §§ 89 to 94, 97, 110 to 116, 125 to 128, 161, 162; 58 Am. Jur. 2d New Trial § 339; 75 Am. Jur. 2d Trial § 354 et seq.; 81 Am. Jur. 2d Witnesses §§ 717, 718, 731, 734 to 736, 754, 755, 818 to 820, 849, 852, 865. Right to show in civil case that party or witness refused to testify on same matter under claim of privilege in previous criminal proceeding, 2 A.L.R.2d 1297. Cross-examination of automobile driver in civil action with respect to arrest or conviction for previous traffic offenses, 20 A.L.R.2d 1217, 88 A.L.R.3d 74. Cross-examination of expert witness as to fees, compensation and the like, 33 A.L.R.2d 1170. Federal Civil Procedure Rule 43(b), and similar state rule, relating to the calling and interrogation of adverse party as witness at trial, 35 A.L.R.2d 756. Cross-examination of witness in criminal case as to whether, and with whom, he has discussed facts of case, 35 A.L.R.2d 1045. Cross-examination by leading questions of witness friendly to or biased in favor of cross-examiner, 38 A.L.R.2d 952. Right of accused in homicide case to cross-examine prosecution's witness as to latter's pending or contemplated civil action against accused arising out of same transaction, 41 A.L.R.2d 1205. Right of a defendant in personal injury or death action to cross-examine codefendant, 43 A.L.R.2d 1000. Right of counsel representing party at trial, but employed by his liability insurer, to cross-examine or impeach him for asserted contradictory statements, 48 A.L.R.2d 1239. Who is "employee" within statute permitting examination, as adverse witness, of employee of party, 56 A.L.R.2d 1108. Preventing or limiting cross-examination of prosecution's witness as to his motive for testifying, 62 A.L.R.2d 610. Cross-examination of plaintiff in personal injury action as to his previous injuries, physical condition, claims or actions, 69 A.L.R.2d 593. Right to elicit expert testimony from adverse party called as witness, 88 A.L.R.2d 1186. Limiting number of noncharacter witnesses in civil case, 5 A.L.R.3d 169. Limiting number of noncharacter witnesses in criminal case, 5 A.L.R.3d 238. Propriety and prejudicial effect of trial court's limiting number of character or reputation witnesses, 17 A.L.R.3d 327. Propriety of jurors asking questions in open court during course of trial, 31 A.L.R.3d 872. Cross-examination of witness as to his mental state or condition, to impeach competency or credibility, 44 A.L.R.3d 1203. Right, in child custody proceedings, to cross-examine investigating officer whose report is used by court in its decision, 59 A.L.R.3d 1337. Right to cross-examine witness as to his place of residence, 85 A.L.R.3d 541. Closed-circuit television witness examination, 61 A.L.R.4th 1155. Impeachment or cross-examination of prosecuting witness in sexual offense trial by showing that similar charges were made against other persons, 71 A.L.R.4th 469. Who is "managing agent" under Rule 43(d) of Rules of Civil Procedure, 1 A.L.R. Fed. 693. Construction and application of provision of Rule 611(b) of Federal Rules of Evidence that cross-examination should be limited to subject matter of direct examination, 45 A.L.R. Fed. 639. 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. Propriety, in federal court action, of attack on witness' credibility by rebuttal evidence pertaining to cross-examination testimony on collateral matters, 60 A.L.R. Fed. 8 Jurors questioning witnesses in federal court, 80 A.L.R. Fed. 892. 98 C.J.S. Witnesses §§ 315 to 317, 329 to 338, 377 to 401.