N.M. R. Evid. 11-706
N.M. R. Evid. 11-706
Committee commentary. - The language of Rule 11-706 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" and made gender neutral changes throughout the rule. Compiler's notes. - This rule is similar to Rule 706 of the Federal Rules of Evidence. Nonparty participant in a mediation may be a witness at trial. - Where two of the parties made separate loans to another party to the litigation; the loans were secured by stock in the defendant corporation; at a settlement conference, the lender parties agreed to hire an expert to prepare a valuation of the defendant corporation to assist them evaluate a settlement offer; and the appraiser's valuation report was a confidential mediation communication under Section 44-7B-4 NMSA 1978 that could not be disclosed or used at trial, the district court did not abuse its discretion in appointing the appraiser as a Rule 11-706 expert witness and although the appraiser was prohibited from testifying about the valuation report, the appraiser could testify about documents underling the valuation report and could prepare a new valuation report. Warner v. Calvert, 2011-NMCA-028, 150 N.M. 333, 258 P.3d 1125. Statutory authority. - Section 32-1-32B NMSA 1978 is not the only authority for a mental examination of a child, as the court may also appoint experts under this rule. State v. Doe, 1982-NMCA-028, 97 N.M. 598, 642 P.2d 201. Power to enforce order to pay expert. - The district court has inherent authority to sua sponte issue an order to show cause why a party should not be held in civil contempt for failing to comply with a court order to pay the fees of a Rule 11-706 NMRA expert and to hold a party in contempt for failure to pay the fees. Papatheofanis v. Allen, 2009-NMCA-084, 146 N.M. 840, 215 P.3d 778. Where the district court appointed an expert in a domestic relations case and ordered the parties to each pay one-half of the expert's fees, the district court had the authority to sua sponte issue an order to show cause why the parties should not be held in contempt for violating the order to pay the expert's fees and to hold the parties in contempt for failure to pay the fees. Papatheofanis v. Allen, 2009-NMCA-084, 146 N.M. 840, 215 P.3d 778 Appointment of independent expert authorized. - This rule authorizes the trial court to appoint an independent expert unaligned with either party to assist the court in determining significant issues in the proceeding. In re Sanders, 1989-NMCA-025, 108 N.M. 434, 773 P.2d 1241. Defendant can subpoena expert although trial court refuses. - Although the trial court refused to subpoena a psychologist as requested by defendant after trial had begun, the defendant himself could have subpoenaed the doctor without court permission, and had the trial court refused to allow him to testify, the defendant would, in that case, have to make an offer of proof to preserve error. State v. Melton, 1977-NMSC-014, 90 N.M. 188, 561 P.2d 461. Costs of a clinical psychologist appointed to assist a petitioner seeking revocation of his treatment guardianship were payable from the funds of the district court, not the health and environment department (now the department of health), where, although the court did not follow the procedures provided in this rule in making the appointment, the department did not object to the procedure followed. In re Sanders, 1989-NMCA-025, 108 N.M. 434, 773 P.2d 1241. Costs of court-appointed expert. - Although the court, in appropriate instances, may direct that petitioners and human services department both share the costs of an expert witness appointed by the court, absent a showing that the petitioners are unable to pay a portion of the expert witness fee, the court erred in directing that human services department be required to pay the entire cost of the court-appointed expert witness. In re Stailey, 1994-NMCA-015, 117 N.M. 199, 870 P.2d 161. In a domestic relations suit, the trial court had authority to void notice of attorneys' charging lien recorded on the parties' residence and to allocate the proceeds, giving priority to the claims of court-appointed experts if the facts and circumstances justified it. Philipbar v. Philipbar, 1999-NMCA-063, 127 N.M. 341, 980 P.2d 1075. 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). Am. Jur. 2d, A.L.R. and C.J.S. references. - Right of independent expert to refuse to testify as to expert opinion, 50 A.L.R.4th 680. Right of indigent defendant in state criminal case to assistance of ballistics experts, 71 A.L.R.4th 638. Right of indigent defendant in state criminal case to assistance of fingerprint expert, 72 A.L.R.4th 874. Right of indigent defendant in state criminal case to assistance of expert in social attitudes, 74 A.L.R.4th 330. Right of indigent defendant in state criminal case to assistance of chemist, toxicologist, technician, narcotics expert, or similar nonmedical specialist in substance analysis, 74 A.L.R.4th 388. Right of indigent defendant in state criminal prosecution to ex parte in camera hearing on request for state-funded expert witness, 83 A.L.R.5th 541.