N.M. R. Evid. 11-801
The statement must be considered but does not by itself establish the declarant's authority under Paragraph D(2)(c) of this rule, the existence or scope of the relationship under Paragraph D(2)(d) of this rule, or the existence of the conspiracy or participation in it under Paragraph D(2)(e) of this rule.
N.M. R. Evid. 11-801
Committee commentary. - The language of Rule 11-801 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.
Statements falling under the hearsay exclusion provided by Rule 11-801(D)(2) NMRA are no longer referred to as "admissions" in the title to the paragraph. The term "admissions" is confusing because not all statements covered by the exclusion are admissions in the colloquial sense - a statement can be within the exclusion even if it "admitted" nothing and was not against the party's interest when made. The term "admissions" also raises confusion in comparison with the Rule 11-804(B)(3) NMRA exception for declarations against interest. No change in application of the exclusion is intended.
[Adopted 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 2006 amendment, approved by Supreme Court Order No. 06-8300-025 effective December 18, 2006, added the last paragraph of the rule. The 1995 amendment, effective January 1, 1995, added "and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition" in Subparagraph D(1)(a). The 1993 amendment, effective December 1, 1993, made gender neutral changes throughout the rule. Compiler's notes. - This rule is similar to Rule 801 of the Federal Rules of Evidence. I. GENERAL CONSIDERATION. Verbal acts. - Where defendant made an issue of the minor victim's failure to report sexual abuse, statements made by the victim to her mother that "I think I've had sex" and "I think I've been raped" were admissible as verbal acts to prove that the victim made the statements. State v. Ruiz, 2007-NMCA-014, 141 N.M. 53, 150 P.3d 1003, cert. denied, 2007-NMCERT-001. Hearsay evidence may be used to establish probable cause. Zamora v. Creamland Dairies, Inc., 1987-NMCA-144, 106 N.M. 628, 747 P.2d 923. Hearsay statements in document admitted by stipulation are competent. - Where documentary evidence is admitted by stipulation, hearsay statements contained therein become competent evidence. Caranta v. Pioneer Home Imps., Inc., 1970-NMSC-030, 81 N.M. 393, 467 P.2d 719 (decided prior to the adoption of this rule). Objection to hearsay must direct court's attention to defect. - Even if the question is objectionable as calling for hearsay evidence, a ruling by the court in allowing the testimony will be sustained where the objection is not properly stated and the court's attention not directed to the defect relied upon. Sturgeon v. Clark, 1961-NMSC-125, 69 N.M. 132, 364 P.2d 757. Failure to preserve objection for appeal. - When plaintiff's testimony on direct examination appeared to be a nonhearsay statement of personal knowledge but was subsequently revealed on cross-examination to be based on hearsay, defense counsel waived his right to appeal the admission of the statement by not renewing his objection on cross-examination or moving to strike plaintiff's original statement. Gutierrez v. Albertsons, Inc., 1991-NMCA-135, 113 N.M. 256, 824 P.2d 1058. II. HEARSAY. Experts and their opinions are not fungible and when the testifying expert has not formed an independent conclusion from the underlying facts or data, but merely restates the hearsay opinion of a non-testifying expert, the testifying expert's testimony is inadmissible hearsay. State v. Aragon, 2010-NMSC-008, 147 N.M. 474, 225 P.3d 1280, overruling State v. Christian, 1995-NMCA-027, 119 N.M. 776, 895 P.2d 676. Testimony about a non-testifying analyst's chemical forensic report was inadmissible hearsay. - Where an analyst at a public laboratory prepared a chemical forensic report of the analyst's analysis of a white, crystal-like substance at the request of police officers who had found the substance in defendant's possession; the analyst who performed the analysis and prepared the report was not present to testify at defendant's trial; the report was admitted into evidence through the testimony of a separate testifying analyst who did not perform the analysis or prepare the report; the testifying analyst's testimony was a restatement of the non-testifying analyst's conclusory opinion regarding the narcotic content of the substance, its weight, and its purity as stated in the non-testifying analyst's report; and the testifying analyst did not express an opinion based on the data in the report, the report was inadmissible testimonial hearsay and the admission of the report into evidence violated defendant's right of confrontation. State v. Aragon, 2010-NMSC-008, 147 N.M. 474, 225 P.3d 1280, overruling State v. Christian, 1995-NMCA-027, 119 N.M. 776, 895 P.2d 676. Statement that defendant was driving automobile deemed hearsay. - Where defendant was convicted of aggravated DWI; defendant's vehicle rear-ended another vehicle; defendant fled the scene of the accident; the arresting officer testified that defendant's brother told the officer that defendant had been driving the vehicle; and the admission of the brother's statement had no other purpose than to prove that defendant was the driver of the vehicle, the brother's statement was hearsay and inadmissible. State v. Bullcoming, 2010-NMSC-007, 147 N.M. 487, 226 P.3d 1, rev'g in part 2008-NMCA-097, 144 N.M. 546, 189 P.3d 679. Statement offered to demonstrate a reasonable belief in the necessity for the use of force to prove self-defense deemed hearsay. - Where defendant, in support of his claim of self-defense, sought to admit, through the testimony of the arresting officer, defendant's out-of-court statement that the victim "came at him with a sword," the statement was properly excluded as hearsay because defendant could not use this statement to demonstrate a reasonable belief in the necessity of his use of force for self-defense unless he stated truthfully to the officer that the victim came at him with a sword; accordingly, the statement in fact was being offered for the truth of the matter asserted. State v. King, 2015-NMSC-030. Out-of-court statement offered in evidence only to prove the truth of the matter asserted was hearsay. State v. Self, 1975-NMCA-062, 88 N.M. 37, 536 P.2d 1093. Statement, offered to prove the truth of the matter asserted, was hearsay. - Where defendants were charged with fraud after convincing an elderly couple to invest in a phony investment scheme, the district court did not abuse its discretion when it prohibited one of the defendants from testifying regarding certain financial statements created by the defendant showing that defendant made certain payments to the victims in an effort to impeach one victim's testimony that he did not know why the financial statements were prepared, because the statement was offered to prove the truth of the matter asserted, that the victim had requested the financial statements. State v. Maxwell, 2016-NMCA-082, cert. denied. Where defendants were charged with fraud after convincing an elderly couple to invest in a phony investment scheme, the district court did not abuse its discretion when it prohibited one of the defendants from testifying regarding his reasoning behind keeping a certain payment secret in an effort to show that one of the victim's asked him not to tell the other victim about the payment, because the out-of-court statement was offered to prove the truth of the matter, that the victim requested that the payment be kept secret. State v. Maxwell, 2016-NMCA-082, cert. denied. Where defendant was charged with possession of controlled substances and possession of drug paraphernalia, the district court's exclusion of defendant's proposed oral testimony that he underwent urinalysis after his arrest and that the results were negative for controlled substances was proper under 11-801(C) NMRA, because defendant's awareness of his test results originated with an out-of-court statement and the statement was intended to prove the truth of the matter asserted, that he tested negative for controlled substances following his arrest. State v. Howl, 2016-NMCA-084, cert. denied. Rule operates when extrajudicial statements offered to prove matter's truth. - The exclusionary effect of the hearsay rule is applicable only when the extrajudicial statements or writings are offered to prove the truth of the matter therein stated. State v. Alberts, 1969-NMCA-064, 80 N.M. 472, 457 P.2d 991. Extrajudicial statements excluded when offered to prove asserted matter's truth. - The prohibition of the hearsay rule does not apply to all out-of-court utterances or writings as such. Such extrajudicial statements or writings are subject to the exclusionary impact of the hearsay rule only when they are offered to prove the truth of the matter asserted therein. McCord v. Ashbaugh, 1960-NMSC-045, 67 N.M. 61, 352 P.2d 641. Documents offered as truth of assertions deemed hearsay. - In an action for breach of warranty in the sale of a trailer park, an engineer's report and an appraisal offered as evidence of the truth of assertions that a sewage plant needed repair or replacement and that the park had a certain value at a particular time were hearsay. Camino Real Mobile Home Park Partnership v. Wolfe, 1995-NMSC-013, 119 N.M. 436, 891 P.2d 1190. Independent medical examination report in workers' compensation case, as stand-alone evidence, deemed inadmissible hearsay. - In a workers' compensation case, an independent medical examination report (IME), offered by an employer as evidence of the truth of the assertion that worker had reached maximum medical improvement with an impairment rating of zero percent, constitutes hearsay subject to no exceptions in the rule, statutes or regulations. The workers' compensation judge erred in admitting the IME and relying on it as the basis for determining that worker reached maximum medical improvement with a zero percent impairment rating. Valenzuela v. A.S. Horner, Inc., 2016-NMCA-031, cert. denied. Handwritten note containing a name and address was hearsay. - Where defendant was charged with possession of methamphetamine based on evidence found in the home of defendant's parent; during the search of a bedroom, police officers found a handwritten note that contained defendant's name and the address of the home of defendant's parent; the note did not contain any indicia of authorship, ownership, association or purpose; and the State offered a photograph of the note as evidence to show that defendant exercised control over the bedroom where methamphetamine was found during the search, the note was hearsay because, standing alone, the note was insufficient to establish that it was the personal property of defendant or otherwise had a legitimate independent purpose or probative effect that extended beyond the truth of the matters asserted in the note. State v. Sedillo, 2014-NMCA-039, cert. denied, 2014-NMCERT-003. Statement that defendant said he was driving automobile deemed hearsay. - In a prosecution for driving under the influence, it was reversible error to admit, as a statement of identification, a police officer's testimony that defendant's wife told him on the night of the accident that defendant had been driving the vehicle. State v. Lopez, 1997-NMCA-075, 123 N.M. 599, 943 P.2d 1052. Rule inapplicable to probation revocation proceedings. - The Rules of Evidence do not apply to proceedings to revoke probation and, for the proper usage of hearsay in such proceedings, a court looks to the law not involving these rules. State v. Vigil, 1982-NMCA-058, 97 N.M. 749, 643 P.2d 618. Statements not hearsay when not offered for truth. - In a suit for temporary total disability benefits, claimant's testimony regarding statements made by defendant's employees, offered to establish that defendant refused to make light duty work available, was not hearsay, as the testimony was not offered for the truth of the out-of-court statements, but rather to prove that they were made, and any hearsay contained therein could nonetheless be admitted as proof of admissions by agents of a party opponent made in the course and scope of employment. Sanchez v. Molycorp, Inc., 1992-NMCA-007, 113 N.M. 375, 826 P.2d 971. Testimony of a witness as to a statement made by a murder victim to the witness over the telephone was not hearsay since it was not offered to prove its assertions. State v. Ross, 1996-NMSC-031, 122 N.M. 15, 919 P.2d 1080. Out of court statements by co-defendants were not hearsay because the statements were not being offered into evidence to prove the truth of the matter; rather, the statements were admitting to show that the statements were untrue. State v. Reyes, 2002-NMSC-024, 132 N.M. 576, 52 P.3d 948. Voice text received during the course of the crime was not hearsay. - Where defendant was convicted of conspiracy to commit drug trafficking by distribution, the trial court did not abuse its discretion in admitting into evidence a voice text that defendant received from the alleged co-conspirator during the attempted drug transaction, stating "You better not be f***ing me over, prim", because the statement was an implied expression of skepticism about defendant's intentions or actions, or it was an implied warning or an implied threat of an undefined consequence and was not offered to prove the truth of the matter asserted, but offered for the fact that it was made, and statements or conduct which are non-assertive are not hearsay. State v. Saiz, 2017-NMCA-072, cert. denied. Documents offered for non-hearsay purpose. - Where defendant was charged with possession of methamphetamine based on evidence found in the home of defendant's parent; during the search of a bedroom, police officers found two correspondence documents relating to telephone service; one document was part of a telephone bill that did not include any name or telephone number and which informed the customer that the customer had to pay forty dollars to avoid cancellation of telephone service; the other document stated "Congratulations Lawrence Sedillo! You are done! Turn off your headset and turn it back on . . . Information below. You can print this page to keep as a record of this transaction" and which provided instructions for activating a handset; and the State offered the photographs in evidence to show that defendant exercised control over the bedroom where methamphetamine was found during the search, the telephone correspondence documents were relevant for a legitimate independent purpose that did not rely on the truth of the statements contained in the documents and were not hearsay. State v. Sedillo, 2014-NMCA-039, cert. denied, 2014-NMCERT-003. Facts possibly constituting basis for expert's opinions not hearsay. - Where information sought by the prosecutor's questions was the facts before polygraph examiner which the examiner could have considered in arriving at his opinion, such information was not elicited for its truth, and was not hearsay. State v. Hogervorst, 1977-NMCA-057, 90 N.M. 580, 566 P.2d 828, cert. denied, 90 N.M. 636, 567 P.2d 485. Statement not hearsay where not dependent on credibility of another. - Testimony of defendant-doctor in a malpractice suit as to the number of patients treated at two area hospitals for a certain complaint during the five years, as gleaned from his perusal of the hospital records was not hearsay because the doctor's statements were not dependent, in whole or in part, on the competency and credibility of some person other than himself. Sundberg v. Hurley, 1976-NMCA-081, 89 N.M. 511, 554 P.2d 673, cert. denied, 90 N.M. 9, 558 P.2d 621. Not hearsay when witness recognized defendant's voice on telephone. - Defendant's objection at trial that the testimony was hearsay because of witness' lack of positive identification of the defendant was without merit, as witness testified unequivocally that he recognized the defendant's voice over the telephone. State v. Wesson, 1972-NMCA-013, 83 N.M. 480, 493 P.2d 965. Out of court identification. - Testimony sought by defense counsel that the victim's brother, a witness to the offense, picked someone other than the defendant from a photo array, was plainly hearsay. State v. Mora, 2003-NMCA-072, 133 N.M. 746, 69 P.3d 256, cert. denied, 133 N.M. 727, 69 P.3d 237. Verbal conduct to which law attaches duties and liabilities. - Oral utterances by parties in a contract suit constituting offer and acceptance are not evidence of assertions offered testimonially, but rather of verbal conduct to which the law attaches duties and liabilities. Such utterances are not "hearsay" and are admissible to prove an oral contract. In re Estate of Bergman, 1988-NMCA-061, 107 N.M. 574, 761 P.2d 452. Statements which are mere directions or commands. - Words which are meant to be directions as to how to do something, and which are not assertions that would either be true or false, are not hearsay. Jim v. Budd, 1987-NMCA-079, 107 N.M. 489, 760 P.2d 782. Defendant's statement to an out-of-court declarant was not hearsay, where the statement was a directive or a command and was offered not for its truth but for the fact that it was made. State v. Toney, 2002-NMSC-003, 131 N.M. 558, 40 P.3d 1002. Statements which are mere directions or commands. - Where defendant's primary co-conspirator beat, drugged, and tied the victim to a bed in defendant's residence; while the primary co-conspirator was absent from the residence for a lengthy period of time, defendant watched the victim; and a secondary co-conspirator testified that the primary co-conspirator requested defendant to watch the victim and ensure that the victim was silent while the primary co-conspirator was absent from the residence, the primary co-conspirator's statement was a direction or command rather than an assertion from which truth or falsity could be discerned and was not hearsay. State v. Bahney, 2012-NMCA-039, 274 P.3d 134, cert. denied, 2012-NMCERT-003. Statements of co-conspirator. - Where defendant's primary co-conspirator beat, drugged, and tied the victim to a bed in defendant's residence; defendant purchased charcoal lighter fluid at the direction of the primary co-conspirator; defendant's co-conspirators later placed the victim in the trunk of the victims' car and burned the car; and a secondary co-conspirator testified that the primary co-conspirator, in defendant's presence, stated that the primary co-conspirator was going to torch the victim's car, the statement was offered, not to prove the veracity of the primary co-conspirator's intent to commit arson, but to demonstrate defendant's knowledge of the primary co-conspirator's plans for the purpose of establishing defendant's motive for purchasing the lighter fluid and, as a statement in furtherance of the conspiracy, the statement was not hearsay. State v. Bahney, 2012-NMCA-039, 274 P.3d 134, cert. denied, 2012-NMCERT-003. In self-defense or defense-of-others cases, evidence of the victim's character may be admissible to show either defendant's reasonable fear and response under the circumstances, or that the victim was the aggressor. The hearsay rule is no bar to the introduction of such testimony, at least where the testimony is offered not for the truth of the matter asserted, but to show the defendant's state of mind. State v. Salgado, 1991-NMCA-111, 112 N.M. 793, 819 P.2d 1351. Testimony as to statement of co-conspirator. - Trial court improperly admitted a landlady's testimony about an alleged co-conspirator statement offered to prove defendant was a co-tenant, where the trial court stated several times that it did not believe that the statement itself advanced an alleged narcotics conspiracy. State v. Calderon, 1991-NMCA-095, 112 N.M. 400, 815 P.2d 1190. Unvouched for third party written appraisals inadmissible as hearsay. - Written appraisals prepared for use in condemnation proceedings by third parties whom the city's urban renewal agency did not supervise, the accuracy of which the agency would not vouch for, and one of which was based on an erroneous assumption about the age of the building, presented none of the circumstantial guarantees of trustworthiness which are normally required to justify an exception to the hearsay rule and were inadmissible as hearsay. Owen v. Burn Constr. Co., 1977 -NMSC-029, 90 N.M. 297, 563 P.2d 91. Recitals in deed not competent evidence. - Recitals that the parties to a deed are heirs of a record owner are, in the absence of statute, not competent evidence either of his death, or of their heirship. Caranta v. Pioneer Home Imps., Inc., 1970-NMSC-030, 81 N.M. 393, 467 P.2d 719. Heirship recitals in deed are mere hearsay. - Although there is no New Mexico authority pertaining to the evidentiary value of heirship recitals in a deed, the general rule is that such recitals are mere hearsay and are not competent evidence of the truth of the recitations against anyone other than the parties to the deed and persons in privity with them. Caranta v. Pioneer Home Imps., Inc., 1970-NMSC-030, 81 N.M. 393, 467 P.2d 719. See also Rule 11-803 NMRA. Heirship recitals in deed admissible when deed ancient and accompanied by possession. - Although the general rule is that recitals in a deed are mere hearsay and are inadmissible in evidence as against a third person who claims by a paramount title, there is an exception to this rule in the case of an ancient deed accompanied by possession and such a deed is admissible, even as against third persons, as prima facie evidence of the facts recited in it. Caranta v. Pioneer Home Imps., Inc., 1970-NMSC-030, 81 N.M. 393, 467 P.2d 719. See also Rule 11-803 NMRA. Heirship recitals become competent evidence when admitted by stipulation. - Recitals of heirship in a deed, although hearsay and incompetent evidence, can become competent evidence to prove the truth of the facts recited when admitted in evidence by stipulation or without objection. Caranta v. Pioneer Home Imps., Inc., 1970-NMSC-030, 81 N.M. 393, 467 P.2d 719. Earlier jury verdict hearsay. - The use of a judgment as evidence of a fact determined by the judgment constitutes hearsay evidence if it is offered to prove the truth of the matter asserted. State v. O'Kelley, 1994-NMCA-033, 118 N.M. 52, 878 P.2d 1001. Public record is admissible after authentication and proof of admissibility under hearsay exceptions. State v. Ellis, 1980-NMCA-187, 95 N.M. 427, 622 P.2d 1047. Wife's statement not spontaneous exclamation. - In a proceeding in which the defendant was accused of possession of marijuana, a statement by the defendant's wife to a police officer that she had been very concerned about the defendant's growing marijuana could best be described as a narrative of a past occurrence rather than a spontaneous exclamation produced by the stress of the moment; therefore, the trial court erred in allowing the officer to testify about this statement, which was inadmissible as hearsay. State v. Cozzens, 1979-NMCA-123, 93 N.M. 559, 603 P.2d 298. Testimony not hearsay notwithstanding witness' testimony before officer. - Where at hearing on a motion to quash the indictment, witness (a friend of defendant) testified that a police officer told her at the scene of the accident that "(t)hey (the victims) came over in her (defendant's) lane and hit her," witness stated that she attempted to testify to this before the grand jury but that the assistant district attorney would not let her testify to this statement because it was hearsay, the statement was not hearsay notwithstanding the fact that the witness testified before the officer. State v. Lampman, 1980-NMCA-166, 95 N.M. 279, 620 P.2d 1304, overruled on other grounds, Buzbee v. Donnelly, 1981-NMSC-097, 96 N.M. 692, 634 P.2d 1244. Conduct of unwitting informant not "assertion". - Although, under the Aguilar-Spinelli test, an affidavit based on an informant's hearsay will constitute probable cause for a search warrant only if the affidavit establishes both the credibility and the basis of knowledge of the informant, a detective's personal observations of an unwitting informant buying cocaine constituted sufficient facts and circumstance to satisfy probable cause for the issuance of the warrant. The Aguilar-Spinelli analysis applies only to hearsay. The unwitting informant, who did not realize that he or she was buying cocaine for a law enforcement officer, did not intend his or her conduct as an "assertion"; consequently, that conduct was not hearsay. State v. Lovato, 1993-NMCA-163, 117 N.M. 68, 868 P.2d 1293. Videotaped interviews. - Videotaped interview of six year old sexual contact victim was inadmissible since, to the extent she testified as to any substantive events at trial, there were several obvious inconsistencies between the trial testimony and her videotaped police interview; more importantly, she did not answer, or answered inconclusively, many of the prosecutor's critical questions at trial. State v. Sandate, 1994-NMCA-138, 119 N.M. 235, 889 P.2d 843. III. PRIOR STATEMENT BY WITNESS. Impeachment. - To impeach a witness by prior inconsistent statements, the attorney must first elicit in-court testimony about a matter. If the testimony is inconsistent with a witness's prior statement, the attorney confronts the witness with the prior statement. The attorney must provide the witness with an opportunity to explain and the opposite party an opportunity to examine on the statement. State v. Macias, 2009-NMSC-028, 146 N.M. 378, 210 P.3d 804. Prior inconsistent statement used for impeachment. - A prior inconsistent statement used for impeachment is not hearsay because it is not admitted for the truth of the matter asserted; rather, it is the fact of the inconsistency that is admissible, not the substantive truth or falsity of the prior statement; thus, extrinsic evidence of a prior inconsistent statement admitted under Subparagraph (D)(1)(a) of this Rule is always admissible for impeachment purposes, subject to the requirements of Rule 11-613 NMRA and to the general rules governing relevance. State v. Astorga, 2015-NMSC-007. In first-degree murder case where a witness testified at trial that he saw the caliber stamp on the murder weapon, the trial testimony was inconsistent with the witness's prior statement to the investigator that he did not actually see the caliber stamp on the handgun; defense counsel sought to admit evidence of the witness's prior inconsistent statement for the purpose of impeaching the witness and not for the truth of the prior statement; the trial court erred in relying on Subparagraph (D)(1)(a) of this Rule to exclude extrinsic evidence of the prior inconsistent statement based on the fact that the prior statement had not been given under penalty of perjury. State v. Astorga, 2015-NMSC-007. Hearsay statements not used for impeachment purposes. - Where the prosecutor asked the witness whether the witness remembered calling a friend of the defendant; when the witness testified that the witness did not remember the telephone call and was uncertain about what was discussed, the prosecutor distributed a transcript to the jury and played the recording of the telephone call in its entirety; the prosecutor then proceeded to have the witness attempt to interpret the friend's statements; and the telephone call contained statements by the friend incriminating the defendant in the murder of the victim, the prosecutor did not use the friend's statements to impeach the witness because the witness testified about a lack of memory and did not make a statement that could be impeached by the statements made in the telephone call and the statements made by the friend constituted inadmissible hearsay. State v. Macias, 2009-NMSC-028, 146 N.M. 378, 210 P.3d 804. Prior consistent statement exception not applicable. - Where defense counsel attempted to impeach a witness with the minor inconsistencies between the witness's in-court testimony and the witness's videotaped statement to police officers and where the videotaped statement was made after the police had contacted the witness about evidence that implicated the witness in the murder of the victim, the videotaped statement was not admissible as a prior consistent statement. State v. Barr, 2009-NMSC-024, 146 N.M. 301, 210 P.3d 198. Police officer's statement was not hearsay where the conversation was not introduced to support its truth, but only to demonstrate that such a conversation had occurred for the purposes of establishing probable cause. Southern Farm Bureau Cas. Co. v. Hiner, 2005-NMCA-104, 138 N.M. 154, 117 P.3d 960, cert. denied, 2005-NMCERT-008. Evidence amounting to hearsay available to rebut. - If the mere fact that statements were made on a particular date is relevant, then they are not hearsay, and, where testimony was relevant to show that defendant's blackmail defense was not of recent fabrication, and that true or not, it was asserted prior to any knowledge of charges being brought, the fact that it may have been inadmissible to establish the truth thereof did not render it inadmissible to rebut the implied charge of recent fabrication. State v. Foster, 1974-NMCA-150, 87 N.M. 155, 530 P.2d 949. Use of prior statement to fill in memory gaps. - The use of a prior out-of-court statement to fill in the gaps left by the faulty memory of a witness who actually testifies at trial is precluded. State v. Sandate, 1994-NMCA-138, 119 N.M. 235, 889 P.2d 843. Only portion of statement used to impeach admissible. - Where a statement is made available to the defendant for impeachment, the state, generally, may then introduce into evidence only that portion of the statement used to impeach the witness or which explains and clarifies the same subject. State v. Manus, 1979-NMSC-035, 93 N.M. 95, 597 P.2d 280. Where prosecutor introduced a hearsay statement that served not only to impeach, but offered an admission by defendant on whether or not he fired a gun, the State improperly introduced hearsay evidence and defendant was entitled to a new trial. State v. McClaugherty, 2003-NMSC-006, 133 N.M. 459, 64 P.3d 486. Prior statement substantive evidence. - The language of Paragraph D(1)(a) of this rule omits the restrictive limitations imposed by its federal rule counterpart on the use of a witness's prior inconsistent statements offered as substantive evidence; unless excluded on other grounds, a prior inconsistent statement may be introduced as substantive evidence. State v. Lancaster, 1993-NMCA-098, 116 N.M. 41, 859 P.2d 1068. There are two basic reasons for giving substantive effect to prior inconsistent statements: (1) since juries may consider these statements for purposes of impeachment it is realistic to assume that, despite limiting instructions, the jury will decide which statement is true instead of concluding solely that the witness' credibility is impaired, and (2) statements made closer in time to the event in question and before the exertion of external pressures may be more trustworthy than testimony at trial and should not be excluded. State v. Maestas, 1978-NMCA-084, 92 N.M. 135, 584 P.2d 182. For purpose of impeachment, evidence is not barred because it is hearsay. A prior statement by a witness is not hearsay when the statement is inconsistent with his testimony. Weiland v. Vigil, 1977-NMCA-003, 90 N.M. 148, 560 P.2d 939, cert. denied, 90 N.M. 255, 561 P.2d 1348. Impeachment testimony must be relevant to an issue in case. Weiland v. Vigil, 1977-NMCA-003, 90 N.M. 148, 560 P.2d 939, cert. denied, 90 N.M. 255, 561 P.2d 1348. Determination of relevancy and probativeness. - If there is a charge of recent fabrication or improper influence or motive, only those statements made before the motive originated are nonhearsay and therefore admissible. State v. Casaus, 1996-NMCA-031, 121 N.M. 481, 913 P.2d 669. When prior inconsistent statement is uncorroborated. - Prior inconsistent statements of a witness are, of course, admissible as substantive evidence. However, where the trustworthiness of the prior statements is uncorroborated, they may, as a matter of due process, be insufficient as the sole basis for a conviction. State v. Orosco, 1992-NMSC-006, 113 N.M. 780, 833 P.2d 1146. When prior inconsistent statement not hearsay. - Where the victim was the declarant, and her testimony at trial was inconsistent with prior statements made to her sister-in-law and mother, testimony of her sister-in-law and mother at the trial as to those statements was not hearsay under Subparagraph (1)(a) of Paragraph D. State v. Maestas, 1978-NMCA-084, 92 N.M. 135, 584 P.2d 182. Where a substantial portion of defendant's cross-examination of a witness implied that the witness' trial testimony was a recent fabrication, the admission of the witness' prior written statement, consistent with her trial testimony, was proper under Subparagraph (1)(b) of Paragraph D. State v. Lovato, 1978-NMCA-030, 91 N.M. 712, 580 P.2d 138, cert. denied, 91 N.M. 751, 580 P.2d 972. Extrajudicial inconsistent statement by a witness concerning an admission made by the defendant is not hearsay if the declarant testifies at trial and is subject to cross-examination concerning the statement, and the statement is inconsistent with the testimony of the declarant at trial. State v. Vigil, 1990-NMSC-066, 110 N.M. 254, 794 P.2d 728; State v. Woodward, 1995-NMSC-074, 121 N.M. 1, 908 P.2d 231. A statement of the codefendant made to other prisoners while he was in jail that he had gotten away with a prior murder and would get away with this one as well should have been admitted as a prior inconsistent statement under the former version of Subparagraph D(1)(a); further, the former version of the rule would apply to the case on remand. State v. Baca, 1995-NMSC-045, 120 N.M. 383, 902 P.2d 65. Tape recording of accomplice's statement to police. - Where the court specifically instructed the jury that the tape recording of accomplice's statement to police was only being played as a prior inconsistent statement going to the accomplice's credibility, as the prior statement is not substantive evidence, it cannot be used to support defendant's conviction. State v. Armijo, 2005-NMCA-010, 136 N.M. 723, 104 P.3d 1114. Prior consistent statements. - In order for a prior consistent statement to be admitted, the prior statement must be consistent with testimony given by the declarant at trial and the statement must be admitted to rebut an express or implied charge of recent fabrication or improper influence or motive. State v. Sandate, 1994-NMCA-138, 119 N.M. 235, 889 P.2d 843. Paragraph D(1)(b) should apply only when there is some suggestion, if only slight, that the witness consciously altered his present testimony after making the inconsistent statement by which he has been impeached. State v. Sandate, 1994-NMCA-138, 119 N.M. 235, 889 P.2d 843. In a prosecution for murder, the trial court did not err in admitting videotaped statements of boys who were riding in the victim's vehicle at the time of the shooting as prior consistent statements offered to rebut a charge of recent fabrication or improper influence. State v. Salazar, 1997-NMSC-044, 123 N.M. 778, 945 P.2d 996. Pretrial statements admissible to show consistency. - Admission of the complete pretrial statements of two witnesses to show the high degree of consistency those statements had with the witness' trial testimony was not an abuse of discretion where there was an express or implied charge of recent fabrication or improper influence. State v. Manus, 1979-NMSC-035, 93 N.M. 95, 597 P.2d 280. Trial court did not abuse its discretion in admitting prior statements regarding oral sexual contact that were "substantially similar" to victim's trial testimony as it is not necessary that the statements be consistent as to every detail. State v. Nichols, 2006-NMCA-017, 139 N.M. 72, 128 P.3d 500. Prior consistent statements admissible where victim's credibility to be attacked. - In a prosecution for criminal sexual contact with a minor, the court may allow the victim's prior consistent statements to be presented prior to the defendant's testimony, but after the trial court has been alerted, by way of opening statements, that the victim's credibility will be attacked. State v. Vigil, 1985-NMCA-103, 103 N.M. 583, 711 P.2d 28. Prior consistent statement by witness was admissible, where defendant had attacked the witness' credibility at trial by suggesting that the witness' testimony was inconsistent with his prior statements. State v. Brown, 1998-NMSC-037, 126 N.M. 338, 969 P.2d 313; State v. Harrison, 2000-NMSC-022, 129 N.M. 328, 7 P.3d 478. Out-of-court identifications. - The proviso that a declarant be subject to cross-examination is the fundamental safeguard in admitting evidence of out-of-court identifications under Subparagraph (1)(c) of Paragraph D. State v. Barela, 1982-NMCA-054, 97 N.M. 723, 643 P.2d 287. Prior consistent statement admissible to rebut improper influence charge. - Where defendant on cross-examination declared that the victim had been "coached" in her oral testimony and implied that she was testifying from memory of the written statement, a prior consistent statement was properly admitted to rebut this implicit charge of improper influence. State v. Bell, 1977-NMSC-013, 90 N.M. 134, 560 P.2d 925. Defendant waived any claim he had that witnesses were not subject to cross-examination about their prior statements, where he raised no specific objection that Subparagraph (1)(b) of Paragraph D was not satisfied because of the failure of the witnesses to be examined at their depositions concerning their prior statements. State v. Altgilbers, 1989-NMCA-106, 109 N.M. 453, 786 P.2d 680. Introduction of prior inconsistent statements not harmless error. - In a prosecution for negligent use of a firearm, the introduction of witnesses' prior inconsistent statements suggesting that defendant had been in possession of and had fired the weapon could not be said to be harmless error, where the statements were the only substantive evidence of defendant's guilt. State v. Gutierrez, 1998-NMCA-172, 126 N.M. 366, 969 P.2d 970. IV. ADMISSION BY PARTY-OPPONENT. Statements about past events and present thoughts were not admissible. - Where defendant was charged with first-degree murder; defendant claimed the defendant was acting in self-defense; to support its theory of deliberate murder, the state introduced the victim's diary into evidence to show that defendant was increasingly violent and controlling towards the victim, including specific acts of domestic violence against the victim; the diary contained the statement that "he said when he hit me he was thinking bout David and Leroy an thought I was cheating on him but he said he dident mean 2 do dat", the statement was not admissible as a statement by a party opponent. State v. Leyba, 2012-NMSC-037, 289 P.3d 1215. Letters written in jail. - Where defendant was charged with murdering the victim and the court admitted into evidence three letters that defendant wrote while in custody in which defendant admitted attacking and killing the victim without remorse, the letters were admissible as admissions of a party-opponent. State v. Guerra, 2012-NMSC-014, 278 P.3d 1031. Recordings of telephone calls from jail. - Where defendant made telephone calls from jail requesting that defendant's friends be present at defendant's trial ostensibly to influence the testimony of the state's witnesses; and when a call was placed at the jail, a digital message informed both parties to the call that the call may be recorded and monitored, the statements of defendant in the recording of the call were admissible as non-hearsay statements of a party opponent. State v. Johnson, 2010-NMSC-016, 148 N.M. 50, 229 P.3d 523. Admission of defendant's jail telephone call. - In defendant's murder trial for the killing of a police officer, where the trial court admitted the recording of a jail telephone call that the state presented as evidence implicating defendant in the officer's murder, there was sufficient authentication evidence to justify the trial court decision to admit the recording into evidence where the inmate in the recording self-identified, used the PIN assigned to defendant to make the telephone call, and asked about defendant's cousin who was arrested with defendant, and where the investigating officer identified defendant's voice as the same voice on the recorded jail telephone call. State v. Romero, 2019-NMSC-007. Trial court did not err in admitting into evidence written confession of the defendant. Defendant, before giving the confession, was twice advised of his right to make no statement and his right to consult with counsel, by two different officers, and at the suppression hearing the trial court made full inquiry into the voluntariness of the confession and determined that the defendant had knowingly and intelligently waived his right to remain silent. State v. Baros, 1974-NMCA-127, 87 N.M. 49, 529 P.2d 275, cert. denied, 87 N.M. 47, 529 P.2d 273. Transcript admissible as admission against interest. - Where the transcript of a prior trial was admittedly correct and complete, it was fully proper, and, if admissible for no other reason, it was certainly admissible as an admission by a party against his interest and therefore competent evidence. In re Nelson, 1969-NMSC-012, 79 N.M. 779, 450 P.2d 188. Admissions in docketing statement are not hearsay. State v. Lynn C., 1987-NMCA-146, 106 N.M. 681, 748 P.2d 978. Proof of loss claim from later accident admission against interest. - Evidence that plaintiffs in a personal injury case had filed a proof of loss with an insurer resulting from a later accident was admissible as an admission against interest, since the proof of loss, if inconsistent with the plaintiffs' claims at trial, might cast doubts upon plaintiffs' claims of damages. Selgado v. Commercial Whse. Co., 1974 -NMCA-093, 86 N.M. 633, 526 P.2d 430. Testimony by witness mentioning defendant's references to prior armed robbery, made in conversations shortly after the shooting, was admissible as an admission by the defendant that he had just participated in an armed robbery, an offense relevant to the murder and aggravated battery charges or as a statement of the defendant's then existing mental condition which was relevant to the defendant's state of mind at the time of the shooting a short time before the conversations; however, it would have been improper for the state to have introduced separately evidence of this prior armed robbery. State v. Ortiz, 1975-NMCA-112, 88 N.M. 370, 540 P.2d 850. Single sentence properly excluded when entire writing not offered. - The trial court properly excluded admission of one sentence out of one paragraph of a two-page written statement dictated by defendant-doctor in a malpractice suit since plaintiff did not offer into evidence all relevant parts of the written statement, nor did she offer the written statement in evidence. Sundberg v. Hurley, 1976-NMCA-081, 89 N.M. 511, 554 P.2d 673, cert. denied, 90 N.M. 9, 558 P.2d 621. Sum total of writing required to be admitted to present whole effect. - When part of a statement in any written form is offered against a party, it must be accompanied by all other relevant parts, and all parts possibly tending to qualify the admissions or to present the whole effect of what was said or written on that point must be given to the jury for it is to the sum total that the speaker has committed himself. Sundberg v. Hurley, 1976-NMCA-081, 89 N.M. 511, 554 P.2d 673 (Ct. App.), cert. denied, 90 N.M. 9, 558 P.2d 621. Mere failure to contest assertion not enough. - The requirements of this rule have not been met if the party does no more than fail to contest an assertion. The evidence rule requires more; something not obscure, but obvious. State v. Doe, 1977-NMCA-078, 91 N.M. 92, 570 P.2d 923. Failure to contest is acquiescence only if objection natural. - An accused would be more likely than not to dispute an untrue accusation. Failure to contest an assertion, however, is considered evidence of acquiescence only if it would have been natural under the circumstances to object to the assertion in question. State v. Doe, 1977-NMCA-078, 91 N.M. 92, 570 P.2d 923. Improperly obtained statements ineffective in satisfying manifestation requirement. - Where the statements of the defendant, a child, were inadmissible under former 32-1-5 NMSA 1978, because made after being taken into custody and without the advice of an attorney, any testimony under Subparagraph (2)(b) of Paragraph D of this rule which relies on it as the manifestation requirement was inadmissible. State v. Doe, 1977-NMCA-078, 91 N.M. 92, 570 P.2d 923. Silence combined with admitting large part of statement manifests adoption thereof. - Father's statement that his sons, at the time of apprehending the defendant, said that "they caught him trying to rip off the CB in the truck" was not hearsay and was admitted where the defendant at the same time admitted that they had caught him and that he had been in the truck. This was not an admission by silence, but was a manifestation of defendant's adoption of the statement or his belief in the statement of the sons. State v. Doe, 1977-NMCA-078, 91 N.M. 92, 570 P.2d 923. Admission of party-opponent's deceased agent not hearsay. - An oral statement of a declarant, now deceased, concerning disability payments was not hearsay where it was an admission of the agent of a party-opponent under Subparagraph (2)(d) of Paragraph D. Segura v. Molycorp, Inc., 1981-NMSC-116, 97 N.M. 13, 636 P.2d 284. Declarations of coconspirators admissible once sufficient foundation laid. - When a sufficient foundation is laid by the evidence to establish the existence of a conspiracy, the acts and declarations of coconspirators in pursuance of the common purpose are admissible, whether conspiracy is directly charged or not. State v. Farris, 1970-NMCA-067, 81 N.M. 589, 470 P.2d 561. Prima facie case must be shown. - Out-of-court statements made by a coconspirator about matters relating to the conspiracy are not admissible unless and until a prima facie case of conspiracy is shown by other independent evidence. State v. Harge, 1979-NMCA-120, 94 N.M. 11, 606 P.2d 1105, overruled on other grounds, Buzbee v. Donnelly, 1981-NMSC-097, 96 N.M. 692, 634 P.2d 1244; State v. Sheets, 1981-NMCA-064, 96 N.M. 75, 628 P.2d 320. In a prosecution for conspiracy and attempt to commit murder, items which are statements are not admissible unless there is prima facie proof of the conspiracy independent of the items. State v. Sheets, 1981-NMCA-064, 96 N.M. 75, 628 P.2d 320. Coconspirator's statement allowable before prima facie case shown. - Under New Mexico law there must be prima facie proof of the conspiracy independent of testimony before out-of-court statements made by a coconspirator about matters relating to the conspiracy are admissible under the coconspirator rule, but the trial court has wide discretion regarding the order of proof, and the coconspirator statement may be admitted prior to the submission of prima facie proof of conspiracy. Trujillo v. Sullivan, 815 F.2d 597 (10th Cir.), cert. denied, 484 U.S. 929, 108 S. Ct. 296, 98 L. Ed. 2d 256 (1987). The foundational requirement of proof of a conspiracy by independent evidence does not need to be shown when the state offers a co-conspirator's testimony; instead, the court may rule "conditionally." Also, the statements themselves can establish a prima facie case of conspiracy. State v. Olguin, 1994-NMCA-050, 118 N.M. 91, 879 P.2d 92, aff'd in part, 1995-NMSC-077, 120 N.M. 740, 906 P.2d 731. Coconspiracy statements must occur during conspiracy's existence. - The acts and declarations of a conspirator to be admissible against his coconspirator must occur during the existence of the conspiracy. The problem arising from this rule is one involving the duration of the conspiracy, and the determination of its beginning and end. As for the inception of a conspiracy, the question arises as to when the persons as a matter of fact began to act in pursuance of the common design. This is ordinarily not the subject of direct proof, and circumstances must be relied on to establish the fact. State v. Farris, 1970-NMCA-067, 81 N.M. 589, 470 P.2d 561. While the acts and declarations of one conspirator during the existence of a conspiracy are competent evidence against his coconspirators, no act or declaration made before the inception of the conspiracy may be binding, or given in evidence against the coconspirator on trial. State v. Farris, 1970-NMCA-067, 81 N.M. 589, 470 P.2d 561. Defendant's statements in a tape recorded conversation made by him in an effort to have evidence implicating a coconspirator were admissible since whatever he said during the conversation was admissible as an admission by a party-opponent. State v. Castillo-Sanchez, 1999-NMCA-085, 127 N.M. 540, 984 P.2d 787, cert. denied, 127 N.M. 390, 981 P.2d 1208. Admission of text messages in human trafficking trial. - Where defendant was convicted of human trafficking, promoting prostitution, accepting earnings from a prostitute, contributing to the delinquency of a minor, and conspiracy, and where defendant argued that the trial court erred in admitting text messages that did not satisfy the requirements of a hearsay exception, the trial court did not abuse its discretion in admitting the text messages where the state presented sufficient evidence identifying that defendant and his co-conspirator as the authors of the text messages, and this section provides that an opposing party's statement is not hearsay if the statement is offered against an opposing party and the statement was made by the party in an individual or representative capacity. State v. Jackson, 2018-NMCA-066, cert. denied. Unavailability of nontestifying co-conspirator need not be shown. - There is no requirement under the confrontation clause for the prosecution to show that a nontestifying co-conspirator is unavailable to testify when his out-of-court statement is offered into evidence against the defendant - co-conspirator. State v. Zinn, 1987-NMSC-115, 106 N.M. 544, 746 P.2d 650. Nonverbal conduct intended as assertion within definition of "statement" by coconspirator. - Where the acts of furnishing photographs and a payroll stub were nonverbal conduct, intended to show the identity of the defendant's wife and the existence of insurance, and, thus, were intended as assertions, these acts came within the definition of "statement" and were subject to Subparagraph (2)(e) of Paragraph D. State v. Sheets, 1981-NMCA-064, 96 N.M. 75, 628 P.2d 320. Hearsay evidence of a coconspirator's or codefendant's guilty plea may not be admitted when the witness himself does not testify, nor when that evidence is offered solely to prove the defendant's guilt. State v. Gilbert, 1982-NMCA-081, 98 N.M. 77, 644 P.2d 1066. Evidence sufficient to prove conspiracy so that statements were admissible. State v. Martinez, 1984-NMCA-106, 102 N.M. 94, 691 P.2d 887; Trujillo v. Sullivan, 815 F.2d 597 (10th Cir.), cert. denied, 484 U.S. 929, 108 S. Ct. 296, 98 L. Ed. 2d 256 (1987); State v. Zinn, 1987-NMSC-115, 106 N.M. 544, 746 P.2d 650. Circumstantial evidence must exclude every reasonable hypothesis other than guilt of the defendants. State v. Malouff, 1970-NMCA-069, 81 N.M. 619, 471 P.2d 189. Law reviews. - For article, "Survey of New Mexico Law, 1979-80: Evidence," see 11 N.M.L. Rev. 159 (1981). For annual survey of New Mexico law relating to Evidence, see 12 N.M.L. Rev. 379 (1982). For annual survey of New Mexico law relating to evidence, see 13 N.M.L. Rev. 407 (1983). For annual survey of New Mexico law of evidence, 19 N.M.L. Rev. 679 (1990). For survey of 1990-91 criminal procedure and evidence, see 22 N.M.L. Rev. 713 (1992). Am. Jur. 2d, A.L.R. and C.J.S. references. - 29 Am. Jur. 2d Evidence § 658 et seq.; 29A Am. Jur. 2d Evidence §§ 754 et seq., 831 et seq. Admissibility of statements of coconspirators made after termination of conspiracy and outside accused's presence, 4 A.L.R.3d 671. Admissibility as evidence in civil cases of admissions by infants, 12 A.L.R.3d 1051. Party's right to use, as evidence in civil trial, its own testimony given upon interrogatories or depositions taken by opponent, 13 A.L.R.3d 1312. Admissibility and probative value of admissions of fault by agent on issue of principal's secondary liability, where both are sued, 27 A.L.R.3d 966. 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. Comment note: necessity and sufficiency of independent evidence of conspiracy to allow admission of extrajudicial statements of coconspirators, 46 A.L.R.3d 1148. Admissibility of defense communications made in connection with plea bargaining, 59 A.L.R.3d 441. Nonverbal reaction to accusation, other than silence alone, as constituting adoptive admission under hearsay rule, 87 A.L.R.3d 706. Denial of recollection as inconsistent with prior statement so as to render statement admissible, 99 A.L.R.3d 934. Admissibility of testimony concerning extrajudicial statements made to, or in presence of, witness through an interpreter, 12 A.L.R.4th 1016. Admissibility of hearsay evidence in student disciplinary proceedings, 30 A.L.R.4th 935. Admissibility of impeached witness' prior consistent statement - modern state criminal cases, 58 A.L.R.4th 1014. Admissibility in evidence of composite picture or sketch produced by police to identify offender, 23 A.L.R.5th 672. What is "other proceeding" under Rule 801(d)(1)(A) of Federal Rules of Evidence, excepting from hearsay rule prior inconsistent statement given "at a trial, hearing, or other proceeding," 37 A.L.R. Fed. 855. Admissibility of statement by coconspirator under Rule 801(d)(2)(E) of Federal Rules of Evidence, 44 A.L.R. Fed. 627. Effect of Rule 801(d)(1)(B) of the Federal Rules of Evidence upon the admissibility of a witness' prior consistent statement, 47 A.L.R. Fed. 639. Admissibility of statement under Rule 801(d)(2)(B) of Federal Rules of Evidence, providing that statement is not hearsay if party-opponent has manifested his adoption or belief in its truth, 48 A.L.R. Fed. 721. Admissibility of party's own statement under Rule 801(d)(2)(A) of the Federal Rules of Evidence, 48 A.L.R. Fed. 922. Admissibility as "not hearsay" of statement by party's attorney under Federal Rules of Evidence 801(d)(2)(C) or 801(d)(2)(D), 117 A.L.R. Fed. 599. Interpreter or translator as party's agent for purposes of "admission by party-opponent" exception to hearsay rule (Federal Rules of Evidence, Rules 801(d)(2)(C), 801(d)(2)(D) ), 121 A.L.R. Fed. 611. Admissibility of statement under Rule 801(d)(2)(B) of Federal Rules of Evidence, providing that statement is not hearsay if party-opponent has manifested adoption or belief in its truth, 156 A.L.R. Fed. 217. 23 C.J.S. Criminal Law § 856 et seq.; 31A C.J.S. Evidence § 259.