N.M. R. Evid. 11-612
N.M. R. Evid. 11-612
Committee commentary. - The language of Rule 11-612 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, deleted "his" following "refresh" in the introductory language, substituted "the court" for "the judge" in three places, and substituted "its discretion" for "his discretion" near the end of the rule. Compiler's notes. - This rule is similar to Rule 612 of the Federal Rules of Evidence.
For rule that recorded recollection not included by hearsay rule, see Rule 11-803 NMRA. Refreshing the recollection of a witness. - To refresh a witness's recollection with an exhibit, the attorney must first establish that the witness does not recall the matter. Next, the attorney must determine that the witness's memory will be refreshed by reference to a certain exhibit. If the witness does not agree that the exhibit will be helpful, then the attorney may not attempt to refresh the witness's memory by calling the witness's attention to the exhibit. If the witness testifies that the exhibit might refresh his or her memory, the witness reviews the exhibit without the jury viewing or listening to the exhibit. After the witness has considered the exhibit, the attorney must then ask the witness whether his or memory has been refreshed. If the answer is yes, the exhibit is removed from the witness and the witness continues his or her testimony. The testimony must come from the witness's restored memory, not from the exhibit and not from the questioning attorney. State v. Macias, 2009-NMSC-028, 146 N.M. 378, 210 P.3d 804. Hearsay statements were not used to refresh the recollection of the witness. - Where the prosecutor asked the witness whether the witness remembered calling a friend of the defendant; the witness testified that the witness did not remember the telephone call and was uncertain what was discussed; the witness never acknowledged that a recording or transcript of the telephone call would refresh the witness's recollection; the prosecutor distributed a transcript to the jury and played the recording of the telephone call in its entirety; and the telephone call contained statements by the friend incriminating the defendant in the murder of the victim, the prosecutor did not follow the allowable procedure for refreshing recollection and the statements made by the friend constituted inadmissible hearsay. State v. Macias, 2009-NMSC-028, 146 N.M. 378, 210 P.3d 804. Rules not applicable to pretrial suppression hearings. - There was no error in the trial court's refusal to permit the defendant to review the prosecutor's notes of an interview with an informant where the prosecutor had referred to the notes while testifying at a suppression hearing, since the Rules of Evidence do not apply to pretrial suppression hearings. State v. Doran, 1986-NMCA-126, 105 N.M. 300, 731 P.2d 1344. Purpose of the phrase "for the purpose of testifying" is to safeguard against using the rule as a pretext for wholesale exploration of an opposing party's files and to insure that access is limited only to those writings which may fairly be said in fact to have an impact upon the testimony of the witness. State v. Herrera, 1978-NMCA-048, 92 N.M. 7, 582 P.2d 384, cert. denied, 91 N.M. 751, 580 P.2d 972. Subject to court's discretion only when applied before testifying. - The phrase "if the court in its discretion determines it is necessary in the interests of justice" was added by the amendment in 1976 to conform to the federal version of this rule; and the federal rule applies that discretionary language only to "(2) before testifying." State v. Herrera, 1978-NMCA-048, 92 N.M. 7, 582 P.2d 384, cert. denied, 91 N.M. 751, 580 P.2d 972. Anything may be used to revive a memory. - A song, a scent, a photograph, all allusion, even a past statement known to be false; thus, a writing in this rule includes sound recordings and pictures of all kinds, and it does not matter whether a statement was written by the witness himself, was made contemporaneously with the event itself, or is a copy rather than an original, but only whether in fact it is genuinely calculated to revive the witness's recollection. State v. Bazan, 1977-NMCA-011, 90 N.M. 209, 561 P.2d 482, cert. denied, 90 N.M. 254, 561 P.2d 1347. Lacking effective present recollection is prerequisite to transcription use. - No means of arousing recollection may be used until the witness has satisfied the trial judge that he lacks effective present recollection. State v. Bazan, 1977-NMCA-011, 90 N.M. 209, 561 P.2d 482, cert. denied, 90 N.M. 254, 561 P.2d 1347. Case law still governs majority of refreshing of recollection law. - This rule covers but a small portion of the law relating to the refreshing of recollections, most aspects of which will continue to be governed by case law. State v. Bazan, 1977-NMCA-011, 90 N.M. 209, 561 P.2d 482, cert. denied, 90 N.M. 254, 561 P.2d 1347. Witness to testify as to present recollection and that memory refreshed. - When a witness is allowed to use a prior statement to refresh his memory, it becomes proper to have the witness say that his memory is refreshed and, independent of the exhibit, testify what his present recollection is. State v. Orona, 1979-NMSC-011, 92 N.M. 450, 589 P.2d 1041. Before prior statement by witness can be used to refresh recollection, the time, place and person to whom the statement was given must be established. State v. Orona, 1979-NMSC-011, 92 N.M. 450, 589 P.2d 1041. This rule does not permit the use of leading questions. State v. Orona, 1979-NMSC-011, 92 N.M. 450, 589 P.2d 1041. Hypnotically refreshed witnesses permitted to testify. - Subject to the exercise of the trial court's sound discretion and judicial guidelines, the court may permit a witness whose testimony has been hypnotically refreshed to testify before the fact finder on matters that are relevant to the factual issues to be determined. State v. Beachum, 1981-NMCA-137, 97 N.M. 682, 643 P.2d 246. Adverse party entitled to record of hypnosis session before trial. - For purposes of cross examination, an adverse party is entitled to have the electronic tape or other proper record of a hypnosis session produced for inspection and copying in advance of trial, to cross-examine the witness thereon and to introduce into evidence those portions which relate to the testimony of the witness. State v. Beachum, 1981-NMCA-137, 97 N.M. 682, 643 P.2d 246. Trial judge has considerable discretion at various points to reject testimony purporting to be present recollection revived either by holding that the witness is not lacking in memory, or that the writing does not refresh his memory, or as in the case of leading questions by declining to permit the use of the aid to memory, where he regards the danger of undue suggestion as outweighing the probable value. State v. Bazan, 1977-NMCA-011, 90 N.M. 209, 561 P.2d 482, cert. denied, 90 N.M. 254, 561 P.2d 1347. Other side may use transcription to correct false impressions. - Defendant having attempted to leave with the jury an incorrect impression as to the contents of the transcription used by the witness to refresh his memory it was proper for the state on redirect to correct that impression by showing the true content of the transcription on the particular subject, and the state's reading of the two questions and answers on redirect was not error. State v. Bazan, 1977-NMCA-011, 90 N.M. 209, 561 P.2d 482, cert. denied, 90 N.M. 254, 561 P.2d 1347. Past recorded recollection's limiting rules inapplicable to present recollection revived. - One of the requirements for use of a recorded recollection as evidence is a showing that the record was correct when made; however, none of the limiting rules for past recorded recollection has any bearing on present recollection revived. State v. Bazan, 1977-NMCA-011, 90 N.M. 209, 561 P.2d 482, cert. denied, 90 N.M. 254, 561 P.2d 1347. Witness may refer to transcription without showing transcription made correctly. - There was no error in allowing a witness to revive his memory by referring to a transcription without a showing that the transcription was correct when made. State v. Bazan, 1977-NMCA-011, 90 N.M. 209, 561 P.2d 482, cert. denied, 90 N.M. 254, 561 P.2d 1347. When applying rule of "present recollection revived." - The rule that a memorandum used to refresh the memory must be shown to have been correct when made does not apply to present recollection revived. State v. Bazan, 1977-NMCA-011, 90 N.M. 209, 561 P.2d 482, cert. denied, 90 N.M. 254, 561 P.2d 1347. Memorandum may be read into evidence if recollection not revived. - After a witness consults the particular writing or object offered as a stimulus so that his testimony relates to a present recollection, if his recollection is not revived, a memorandum may be read into evidence and admitted if it meets the test of recorded recollection set forth in Rule 11-803 NMRA. State v. Bazan, 1977-NMCA-011, 90 N.M. 209, 561 P.2d 482, cert. denied, 90 N.M. 254, 561 P.2d 1347. Reliability of writing used to revive memory must be established. - When a witness speaks from a memory that has been revived, the testimony is what the witness says and not the writing; however, when memory is not revived, the witness relies upon a writing, and in this situation the reliability of the writing must be established. State v. Bazan, 1977-NMCA-011, 90 N.M. 209, 561 P.2d 482, cert. denied, 90 N.M. 254, 561 P.2d 1347. Law reviews. - For article, "Survey of New Mexico Law, 1979-80: Evidence," see 11 N.M.L. Rev. 159 (1981). For note, "Evidence - The Admissibility of Hypnotically Refreshed Testimony in New Mexico: State v. Beachum," see 13 N.M.L. Rev. 541 (1983). Am. Jur. 2d, A.L.R. and C.J.S. references. - 29A Am. Jur. 2d Evidence § 1258 et seq.; 81 Am. Jur. 2d Witnesses §§ 793 to 799. Admissibility of hypnotic evidence at criminal trial, 92 A.L.R.3d 442, 77 A.L.R.4th 927. Fact that witness undergoes hypnotic examination as affecting admissibility of testimony in civil case, 31 A.L.R.4th 1239. Admissibility of hypnotically refreshed or enhanced testimony, 77 A.L.R.4th 927. Use of writing to refresh witness' memory, as governed by Rule 612 of Federal Rules of Evidence, 73 A.L.R. Fed. 423. 98 C.J.S. Witnesses §§ 357, 358, 360, 362, 363.