N.M. R. Evid. 11-804
But Paragraph A does not apply if the statement's proponent procured or wrongfully caused the declarant's unavailability in order to prevent the declarant from attending or testifying.
A statement offered against a party that wrongfully caused - or acquiesced in wrongfully causing - the declarant's unavailability as a witness, and did so intending that result.
N.M. R. Evid. 11-804
Committee commentary. - The language of Rule 11-804 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.
Paragraph (B)(3) was amended in 2010 to be consistent with amendments to federal Rule 804(b)(3), effective on December 1, 2010. These amendments require the state to show corroborating circumstances as a condition for admission of an unavailable declarant's statement against penal interest. The previous rule required only the defendant to make such a showing. A unitary approach to declarations against penal interest assures both the prosecution and the accused that the rule will not be abused and that only reliable hearsay statements will be admitted under this exception.
In 2007, the identical "catch-all" exception in Subparagraph (5) of Paragraph B of this rule and former Paragraph X of Rule 11-803 NMRA were eliminated and combined in new Rule 11-807 NMRA, consistent with the corresponding federal rules, with no intended change in meaning.
The new exception added to Subparagraph (6) of Paragraph B was taken verbatim from federal Rule 804(b)(6), which was adopted in 1997, and reflects a substantial body of state and federal case law. See, e.g., State v. Romero, 2007-NMSC-013, 141 N.M. 403, 156 P.3d 694; State v. Alvarez-Lopez, 2004-NMSC-030, 136 N.M. 309, 98 P.3d 699 (2004). It lessens a party's ability to benefit from intentionally making a witness unavailable.
[Amended by Supreme Court Order No. 10-8300-042, effective January 31, 2011; 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, effective June 16, 2012, rewrote the title of the rule and the rule to make stylistic changes. The 2010 amendment, approved by Supreme Court Order No. 10-8300-042, effective January 31, 2011, deleted the former language of Paragraph B(3) which excepted statements that are contrary to a declarant's pecuniary or proprietary interest, that subject a declarant to civil or criminal liability, or that render invalid a claim by a declarant against another which a declarant would not make unless the declarant believed the statements to be true and which provided that statements exposing a declarant to criminal liability and offered to exculpate the accused were not admissible unless they were corroborated by circumstances that indicated they were trustworthy; and added the current language. The 1995 amendment, effective January 1, 1995, added "(or in the case of a hearsay exception under Subparagraphs (2), (3) or (4) of Paragraph B, the declarant's attendance or testimony)" in Paragraph A(5), deleted former Subparagraph (2) of Paragraph B relating to statements of recent perception, and redesignated the remaining subparagraphs in Paragraph B accordingly. The 1993 amendment, effective December 1, 1993, made gender neutral changes throughout the rule. Compiler's notes. - This rule is similar to Rule 804 of the Federal Rules of Evidence. This rule is deemed to supersede, in part, former Rule 43(a), N.M.R. Civ. P. (now see Rule 1-043 NMRA). Those cases decided pursuant to former Rule 43(a), N.M.R. Civ. P., but applicable to this rule, have been noted below.
For privileges generally, see Rules 11-501 to 11-513 NMRA and Sections 38-6-6 and 38-6-7 NMSA 1978. For admissibility of land surveys upon death of surveyor, see Section 4-42-12 NMSA 1978. I. GENERAL CONSIDERATION. Crawford v. Washington, 124 S. Ct. 1354 (2004) interprets the federal constitution in a way that grants broader rights to criminal defendants. State v. Duarte, 2004-NMCA-117, 136 N.M. 404, 98 P.3d 1054. Crawford v. Washington, 124 S.Ct. 1354 (2004) should be applied in New Mexico. State v. Duarte, 2004-NMCA-117, 136 N.M. 404, 98 P.3d 1054. This rule of evidence is applicable in civil cases as well as criminal cases. Madrid v. Scholes, 1976-NMCA-007, 89 N.M. 15, 546 P.2d 863, cert. denied, 89 N.M. 206, 549 P.2d 284. Court's decision admitting evidence upheld where admissible under any theory. - Where evidence is admissible under any theory, the trial court's decision to admit it will be upheld. The same ruling will apply even more forcefully to evidence presented to the grand jury. State v. Ballinger, 1983-NMCA-034, 99 N.M. 707, 663 P.2d 366, rev'd on other grounds, 100 N.M. 583, 673 P.2d 1316. Rule not applicable 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. Hearsay testimony that is trustworthy stands on equal footing with direct testimony even though the prior statements made were not under oath, were not subject to cross-examination and the jury was not present to observe the declarant's demeanor as the statements were made. State v. Maestas, 1978-NMCA-084, 92 N.M. 135, 584 P.2d 182. II. UNAVAILABILITY. Impeachment of unavailable witness's testimony to introduce other inadmissible hearsay. - Where defendant was charged with the rape and murder of the victim; the trial court admitted the preliminary hearing testimony of an unavailable witness; at the preliminary hearing, the witness denied that the witness had told an acquaintance that the witness saw defendant choke and rape the victim; the trial court permitted the state to call the acquaintance to impeach the witness's denial; and the acquaintance testified that the witness told the acquaintance that the witness saw defendant choke and rape the victim, the trial court erred in admitting the otherwise inadmissible hearsay of the acquaintance under the auspices of the state's impeachment of the preliminary hearing testimony of the unavailable witness. State v. Lopez, 2011-NMSC-035, 150 N.M. 179, 258 P.3d 458. Admission of unavailable accomplice's custodial statements inculpating defendant under hearsay exception for statements against penal interest was not harmless error because defendant had no prior opportunity to cross-examine accomplice, pursuant to U.S. Supreme Court's holding in Crawford v. Washington, 124 S.Ct. 1354 (2004). State v. Alvarez-Lopez, 2004-NMSC-030, 136 N.M. 309, 98 P.3d 699. Unavailability of testimony deemed crucial factor. - The crucial factor in the employment of this rule is not the unavailability of a witness, but rather the unavailability of his testimony. State v. Maestas, 1978-NMCA-084, 92 N.M. 135, 584 P.2d 182. Whether witness' testimony is unavailable rests within discretion of trial court. State v. Maestas, 1978-NMCA-084, 92 N.M. 135, 584 P.2d 182. A declarant cannot cause his own unavailability. - 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 district court properly rejected defendant's statement under this rule because defendant was not unavailable as contemplated by 11-804(A)(1) NMRA. Defendant chose not to testify at his trial, exercising his Fifth Amendment privilege against compulsory self-incrimination; a declarant cannot cause his own unavailability by invoking his Fifth Amendment privilege against self-incrimination. State v. King, 2015-NMSC-030. Witness exempted from testifying is unavailable. - Where the trial court has ruled that a witness is exempted from testifying concerning a statement made by him, then that person is unavailable within the meaning of Paragraph A(1), concerning unavailability for purposes of hearsay exceptions. State v. Self, 1975-NMCA-062, 88 N.M. 37, 536 P.2d 1093. Once witness is permitted to claim privilege against self-incrimination, he becomes unavailable as a witness under Subparagraph (1) of Paragraph A and his deposition would not be excluded at trial because of the hearsay rule; however, the fact that the deposition was not to be excluded as hearsay does not authorize its admission if it is excludable because of Rule 1-029 NMRA. McGuinness v. State, 1979-NMSC-006, 92 N.M. 441, 589 P.2d 1032. Admission of deposition of uncooperative unavailable witness. - Defendant's sixth amendment right of confrontation was not violated by the admission of the deposition of uncooperative unavailable witness. Ewing v. Winans, 749 F.2d 607 (10th Cir. 1984). Preliminary hearing testimony. - Where defendant was charged with the rape and murder of the victim; the trial court admitted the preliminary hearing testimony of an unavailable witness; defendant had the opportunity to cross-examine the witness at the preliminary hearing; and defendant had the same motive for cross-examining the witness at the preliminary hearing and at trial to show that defendant did not rape and murder the victim, the trial court did not abuse its discretion in admitting the witness's preliminary hearing testimony. State v. Lopez, 2011-NMSC-035, 150 N.M. 179, 258 P.3d 458. Trial court did not abuse its discretion in admitting preliminary hearing testimony of absent state witness based on unavailability even though prosecutor did not use subpoena pursuant to uniform act to secure attendance of witnesses from without a state in criminal proceedings until witness had already become a fugitive, where witness had made three previous voluntary appearances. State v. Martinez, 1984-NMCA-106, 102 N.M. 94, 691 P.2d 887. Failure to recall making statement. - When a witness testifies consistently with the substance of a prior written statement, but fails to recall writing the statement, the witness is not unavailable within the meaning of Paragraph A. State v. Varela, 1999-NMSC-045, 128 N.M. 454, 993 P.2d 1280. Inability to recall prior testimony deemed "inability to testify". - Where defendant was unable to recall much of the testimony that he gave at a hearing before a medical review commission panel, he was "unable to testify," as described in Subparagraph (4) of Paragraph A and the plaintiff could depose a panelist for the purpose of retrieving evidence lost as a result of the defendant' s lapse of memory. Salazare v. St. Vincent Hosp., 1980-NMCA-095, 96 N.M. 409, 631 P.2d 315, aff'd in part and rev'd in part, 1980-NMSC-124, 95 N.M. 147, 619 P.2d 823. Unavailability because of mental illness and infirmity. - Where the victim persisted in a refusal to identify the person who beat her, suffered mental illness and infirmity, certain psychological blocks and some loss of memory that affected the quality of her testimony the trial court did not abuse its discretion in its determination that the victim was an "unavailable witness." State v. Maestas, 1978-NMCA-084, 92 N.M. 135, 584 P.2d 182. Unavailability because of stress. - State successfully introduced into evidence transcript of doctor's testimony from the first trial on the basis of his unavailability, due to significant stress factors resulting from his participation in military operations overseas. State v. Aragon, 1993-NMCA-076, 116 N.M. 291, 861 P.2d 972. Unavailability because of advanced age. - Where a principal witness was unavailable because she was ill and infirm, it was not error for the trial judge to take the totality of the circumstances of the case into consideration, including the witness' advanced age and the condition of her health, to admit her deposition at trial. State v. Vialpando, 1979-NMCA-083, 93 N.M. 289, 599 P.2d 1086, cert. denied, 93 N.M. 172, 598 P.2d 215. Unavailability of child. - Where a defendant was charged with criminal sexual contact and sexual penetration of a child under the age of 13, and the determination of the child's competency by the district court was made without adequate inquiry into the elements of competency at a meaningful time, the appropriate remedy was to remand for a competency hearing. State v. Macias, 1990-NMCA-053, 110 N.M. 246, 794 P.2d 389. Party must show that he was unable to procure attendance of the witness by process or other reasonable means. Madrid v. Scholes, 1976-NMCA-007, 89 N.M. 15, 546 P.2d 863, cert. denied, 89 N.M. 206, 549 P.2d 284. Attempt to procure attendance required. - Absent evidence of an attempt to procure the attendance of the witness before trial the court does not consider the witness unavailable and evidence of his testimony is inadmissible as hearsay. Trujillo v. Chavez, 1979-NMCA-138, 93 N.M. 626, 603 P.2d 736. Burden is upon state to prove unavailability of its witness. State v. Ewing, 1982-NMSC-003, 97 N.M. 235, 638 P.2d 1080. Court may consider totality of circumstances. - In determining whether the state was diligent in attempting to produce a witness for trial, the trial court may take into consideration the totality of the circumstances. State v. Ewing, 1982-NMSC-003, 97 N.M. 235, 638 P.2d 1080. Effort required to secure attendance of witness. - Before he may use the preliminary hearing testimony of an unavailable witness the proponent of evidence must meet the good faith and due diligence standards in determining whether process or other reasonable means has been employed in securing the attendance of the witness. State v. Waits, 1978-NMCA-116, 92 N.M. 275, 587 P.2d 53. "Process" means legal process. - Process, as used in Subparagraph (5) of Paragraph A must be defined as legal process; that is, it must not only be fair on its face but also valid. State v. Waits, 1978-NMCA-116, 92 N.M. 275, 587 P.2d 53. Showing of "due diligence" to produce witness must be made. - A party seeking the admission of former testimony of a witness must make a showing of "due diligence" by some evidence that the witness cannot be produced in person to testify. Madrid v. Scholes, 1976-NMCA-007, 89 N.M. 15, 546 P.2d 863, cert. denied, 89 N.M. 206, 549 P.2d 284. Evidence of diligence in effort to obtain attendance of witness is sufficient to support court's discretion to receive former testimony. State v. Trujillo, 1928-NMSC-016, 33 N.M. 370, 266 P. 922. Proof witness outside state unnecessary since only diligence required. - When the state reads in evidence the testimony of an absent witness, taken at a previous trial, it does not have the burden of showing affirmatively that witness was outside the state and out of reach of process; it is only necessary to show diligent, but unsuccessful, search for him. State v. Riddel, 1934-NMSC-082, 38 N.M. 550, 37 P.2d 802. Unavailability of witness must be supported by factual elaboration. - The district attorney's statements that the state attempted to subpoena a material witness and that he was out of state were no more than bare recitals unsupported by factual elaboration. Since the record contained no evidence as to the circumstances of the state's alleged attempt and inability to subpoena the witness, the court of appeals refused to hold that the witness was unavailable for trial, and under this rule his preliminary hearing testimony was not admissible in evidence. State v. Mann, 1975-NMCA-045, 87 N.M. 427, 535 P.2d 70. Former testimony excluded where insufficient showing of unavailability of witness. - Where a witness testified at the first trial and, pursuant to Subparagraph (1) of Paragraph B, defendant sought to introduce this first trial testimony at the second trial on the basis that the witness was "unavailable," the basis of the unavailability claim being, as prescribed in Subparagraph (5) of Paragraph A, that defendant had been unable to procure the attendance of this witness at the second trial by process or other reasonable means, there was no error in excluding the first trial testimony of this witness where the record showed that the witness was in the area, that defendant made no attempt to subpoena him and his efforts to secure the attendance of this witness were no more than two or three telephone calls during the three-day period prior to the second trial, with defendant never personally contacting the witness, as there was an insufficient showing of unavailability. State v. Brown, 1977-NMCA-125, 91 N.M. 320, 573 P.2d 675, cert. quashed, 91 N.M. 349, 573 P.2d 1204, cert. denied, 436 U.S. 928, 98 S. Ct. 2826, 56 L. Ed. 2d 772 (1978). In absence of immunity statute, state was unable to guarantee that witness would not be prosecuted; therefore, witness' claim of privilege was not due to the procurement of the proponent of his statement. State v. Self, 1975-NMCA-062, 88 N.M. 37, 536 P.2d 1093. Appellate issue is abuse of discretion. - The trial court has discretion to determine whether the burden of showing unavailability of a witness has been met and the ruling of the trial court will not be disturbed absent a showing of abuse of that discretion. State v. Smith, 1979-NMSC-020, 92 N.M. 533, 591 P.2d 664. III. EXCEPTIONS. A. IN GENERAL. In order for statement to qualify as an exception to hearsay rule, there must be a nexus between the assertion relevant to the issues in the given case and the circumstances which qualify the assertion as an exception to the hearsay rule. State v. Self, 1975-NMCA-062, 88 N.M. 37, 536 P.2d 1093. B. FORMER TESTIMONY. Witness claims lack of memory. - Where at defendant's third trial for murder, a witness for the state stated that the witness had no memory of the events on the day of the murders and that the witness felt threatened; the trial court permitted the witness's testimony from defendant's first trial to be played; at defendant's first trial, the witness voluntarily testified and was cross-examined; and the trial court permitted defendant to cross-examine the witness after the recording was played, the witness's prior testimony was admissible under the prior testimony exception to the hearsay rule. State v. Johnson, 2010-NMSC-016, 148 N.M. 50, 229 P.3d 523. Preliminary examination testimony may be presented to grand jury. - The transcript of the testimony at preliminary examination of witnesses may be presented to the grand jury next convened and introduced in evidence against the accused at his trial in the state district court for the offense with which he is charged. Pearce v. Cox, 354 F.2d 884 (10th Cir. 1965), cert. denied, 384 U.S. 976, 86 S. Ct. 1869, 16 L. Ed. 2d 685 (1966) (decided pursuant to former Rule 43(a) N.M.R. Civ. P.) Later use of preliminary hearing transcript constitutional. - Laws 1919, ch. 29, § 7 (§ 45-407, 1929 Comp.), which was merely declaratory of the common law, permitted the transcript of the testimony of a witness taken at a preliminary hearing to be read in the criminal prosecution; it did not contravene the constitutional right of accused to be confronted by witnesses. State v. Moore, 1936-NMSC-044, 40 N.M. 344, 59 P.2d 902. Preliminary hearing testimony of a witness unavailable for trial was admissible even though defendant claimed his motive for questioning her had changed by the time of the trial, because defendant was given the opportunity to cross-examine the witness at the preliminary hearing and his failure to due so because of a tactical decision does not operate to remove the testimony from this hearsay exception. State v. Gonzales, 1992-NMSC-003, 113 N.M. 221, 824 P.2d 1023. Motive, as used in Subparagraph (1) of Paragraph B, is used in its ordinary sense as something that prompts a person to act in a certain way. State v. Massengill, 1983-NMCA-001, 99 N.M. 283, 657 P.2d 139. Where the issues involved at a preliminary hearing were whether a particular crime had been committed and whether the magistrate had probable cause to believe that the defendant had committed the crime, the defendant had a "similar motive" to cross-examine a witness at the preliminary hearing as he would have had to cross-examine such witness at trial; the fact that defendant did not choose to cross-examine the witness at the preliminary hearing did not go to motive but was a matter of tactics. Accordingly, the taped preliminary hearing testimony of the witness was properly admitted at trial. State v. Massengill, 1983-NMCA-001, 99 N.M. 283, 657 P.2d 139. Opportunity and similar motive to cross-examine. - Where defendant was freely allowed to cross-examine prosecution witness without any restrictions at the preliminary hearing about whether any crime was committed and whether defendant was involved, defendant had an opportunity and similar motive to cross-examine the witness at the preliminary hearing as defendant would have at trial, there were no circumstances showing a real difference in defendant's motive to cross-examine the witness differently at the preliminary hearing than at trial, and the witness later became unavailable to testify at trial, defendant's recorded preliminary hearing testimony was admissible as an exception to the hearsay rule. State v. Henderson, 2006-NMCA-059, 139 N.M. 595, 136 P.3d 1005, cert. denied, 2006-NMCERT-005. Good-faith effort to obtain witness' presence required before preliminary hearing testimony admissible. - Where the defendant's counsel cross-examined a material witness at the preliminary hearing, the trial court's admission into evidence of the tape recording of the testimony of the witness taken at the preliminary hearing denied the defendant's right of confrontation of the witness unless there was a showing that the prosecution had made a good-faith effort to obtain the witness' presence at the trial; after the likelihood of the witness' nonappearance became known, a simple statement by the prosecutor that the state had issued a subpoena and bench warrant and "had been looking for the witness" was not enough. Valenzuela v. Griffin, 654 F.2d 707 (10th Cir. 1981). Grand jury testimony held not admissible. - Even though a witness was unavailable, her grand jury testimony that was in conflict with the testimony of a state's witness was not admissible under the former testimony exception, since the state did not examine her at the grand jury hearing as it would have at the trial, and the exclusion of the testimony did not prejudice defendant. State v. Baca, 1997-NMSC-045, 124 N.M. 55, 946 P.2d 1066. Transcript of bail bond hearing admissible. - Where the trial court admitted a transcript of the prior testimony of a witness given at a bail bond hearing and the witness was dead at the time of the trial of the cause, the admission of such transcript was not hearsay and did not constitute a denial of defendant's right to confront the witness against him. State v. Tijerina, 1972-NMCA-169, 84 N.M. 432, 504 P.2d 642, opinion of Hernandez, J. adopted by supreme court, State v. Tijerina, 1973-NMSC-105, 86 N.M. 31, 519 P.2d 127, cert. denied, 417 U.S. 956, 94 S. Ct. 3085, 41 L. Ed. 2d 674 (1974) (decided pursuant to Rule 1-043 NMRA.) Answers to interrogatories cannot be subsequently used by answering party. - Answers to written interrogatories may be used by a party against the party who made the answers, or admissions in those answers may be used against the party answering; however, the answers cannot be used by the party making them to establish an affirmative claim or defense because they are not subject to cross-examination, and confrontation and cross-examination are basic ingredients of a fair trial. Crabtree v. Measday, 1973-NMCA-017, 85 N.M. 20, 508 P.2d 1317, cert. denied, 85 N.M. 5, 508 P.2d 1302. Deposition giving details declarant no longer remembers. - The witness's lack of memory made him unavailable to testify. A review of the witness's testimony supports this ruling - the witness repeatedly stated he could not remember events and details about which he previously testified during the deposition. Accordingly, the deposition was properly admitted as former testimony of a declarant who is unavailable as a witness under Subparagraph (1) of Paragraph B of Rule 11-804 NMRA. State v. Gonzales, 1991-NMSC-075,112 N.M. 544, 817 P.2d 1186. Admission in another case's deposition revives debt barred by limitations. - Debt barred by the statute of limitations is revived by an admission that it is unpaid, made in writing and signed by the person to be charged, even though made in a deposition taken for use in another case. Joyce-Pruit Co. v. Meadows, 1925-NMSC-052, 31 N.M. 336, 244 P. 889. Objection waived. - Where defense counsel made the tactical decision that, in the absence of live testimony by a defendant's wife, the prior testimony of his wife would be advantageous to the defendant, there was neither plain error nor fundamental error in admitting the testimony, even though the evidence would have been inadmissible if either party had objected. State v. Crislip, 1990-NMCA-054, 110 N.M. 412, 796 P.2d 1108, overruled on other grounds, Santillanes v. State, 1993-NMSC-012, 115 N.M. 215, 849 P.2d 358. C. STATEMENT OF RECENT PERCEPTION. Paragraph B(2) will operate sparingly in criminal cases because of the defendant's constitutional right to confront his accuser and his inability to test the reliability of the declarant's statement by cross-examination. State v. Barela, 1982-NMCA-054, 97 N.M. 723, 643 P.2d 287. Admissible statement of recent perception. - Where statements made by the victim to her sister and sister-in-law were that defendant beat her, hit her with a pipe and a fire log, kicked her and threw her outside the house, the assertions were made within 24 hours of the time the events occurred and the record established that the statements were made in good faith and while the victim's recollection was clear, the statements were admissible under Subparagraph (2) of Paragraph B. State v. Maestas, 1978-NMCA-084, 92 N.M. 135, 584 P.2d 182. Statement made at instigation of officer. - Where an officer goes to a victim's hospital room for the purpose of obtaining a statement and an identification of her assailant, unmistakably, the identification is made at the instigation of the officer; the hearsay exception of Subparagraph (2) of Paragraph B is inapplicable. State v. Barela, 1982-NMCA-054, 97 N.M. 723, 643 P.2d 287. Reliability, to support recent perception exception to hearsay rule, should obviate objection to admissibility of a statement so clothed with circumstances showing veracity. State v. Robinson, 1980-NMSC-049, 94 N.M. 693, 616 P.2d 406. D. STATEMENT UNDER BELIEF OF IMPENDING DEATH. Victim's statements to 911 operator and police officer were admissible as a dying declaration. - Where an altercation occurred between defendant and the victim and defendant shot the victim; the victim told the 911 operator that defendant shot the victim; the victim also told a police officer that defendant shot the victim; the victim was shot multiple times and was lying in a fetal position, bleeding, complaining of pain in the abdominal area, and experiencing shallow breaths; there was blood in the victim's urine; the victim tried to hold the victim's torso up but was unable to do so; the victim expressed concern for the victim's children and called out for the victim's mother; and the victim died six hours later, the victim's statements were admissible as a dying declaration. State v. Largo, 2012-NMSC-015, 278 P.3d 532. Prerequisites for dying declaration. - When a dying declaration is made, the declarant must be conscious and the realization of approaching death must exist. State v. Quintana, 1982-NMSC-054, 98 N.M. 17, 644 P.2d 531. Fear or even the belief that the illness will end in death is not enough for a dying declaration. There must be a settled hopeless expectation that death is near, and what is said must have been spoken in the hush of impending death. State v. Quintana, 1982-NMSC-054, 98 N.M. 17, 644 P.2d 531. In determining "impending death," one is to look to the state of mind of the victim. State v. Quintana, 1982-NMSC-054, 98 N.M. 17, 644 P.2d 531. If it can reasonably be inferred from the state of the wound or the state of the illness that the dying person was aware of his danger, then the requirement of impending death is met. State v. Quintana, 1982-NMSC-054, 98 N.M. 17, 644 P.2d 531. Dying declaration impeachable. - A dying declaration by no means implies absolute verity. It can be impeached. State v. Quintana, 1982-NMSC-054, 98 N.M. 17, 644 P.2d 531. E. STATEMENT AGAINST INTEREST. Statements against penal interest. - A co-defendant's hearsay statements to a friend that the co-defendant murdered the decedent and that defendant told him to shoot the decedent were admissible as statements against the co-defendant's penal interest. State v. Silva, 2007-NMCA-117, 142 N.M. 686, 168 P.3d 1110, cert. granted, 2007-NMCERT-008. Rule satisfies Confrontation Clause. - The penal interest exception within the meaning of Paragraph (B)(3) is firmly rooted hearsay exception for purposes of satistfying the indicia of reliability requirement of the Confrontation Clause, U.S. Const. amend. VI. State v. Martinez-Rodriguez, 2001-NMSC-029, 131 N.M. 47, 33 P.3d 267, cert. denied, 535 U.S. 937, 152 L. Ed. 2d 225, 122 S. Ct. 1317 (2002). Confrontation rights under U.S. Const. amend. VI are not violated by the penal interest exception to the hearsay rule, as it is a firmly rooted hearsay exception for purposes of satisfying the indicia of reliability requirement of the Confrontation Clause. State v. Reyes, 2002-NMSC-024, 132 N.M. 576, 52 P.3d 948. Rationale underlying Paragraph B(3) of this rule is that a statement of fact distinctly against one's interest is unlikely to be false, and is therefore admissible even without oath and cross-examination. State v. Duarte, 2004-NMCA-117, 136 N.M. 404, 98 P.3d 1054. Statements against penal interest admissible. - If the statements were assertedly against witness' penal interest in that they tended to subject him to criminal liability, then such statements would be admissible under Subparagraph B(4). State v. Self, 1975-NMCA-062, 88 N.M. 37, 536 P.2d 1093. In determining whether statement is against penal interest, consideration is given whether the statement is offered in exchange for leniency, and whether it shift blame to another. State v. Duarte, 2004-NMCA-117, 136 N.M. 404, 98 P.3d 1054 Not against penal interest when statement motivated by a desire to curry favor with the authorities. - 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 district court properly rejected defendant's statement under 11-804(B)(3) NMRA, because defendant's statement could have been motivated by a desire to curry favor with the authorities; defendant's statement was not so far contrary to his penal interest that a reasonable person in defendant's position would not have made the statement unless believing it to be true. State v. King, 2015-NMSC-030. Foundation. - The foundation required for the admission of statements against penal interest is: (1) the declarant is unavailable as a witness; (2) the statement must so far tend to subject the declarant to criminal liability that a reasonable person in the declarant's position would not have made the statement unless he believed it to be true; and (3) corroborating circumstances indicate the trustworthiness of the statement. State v. Huerta, 1986-NMCA-057, 104 N.M. 340, 721 P.2d 408. Although the circumstances surrounding the making of the statement are certainly relevant in determining whether a reasonable person would falsely make the statement, other types of evidence corroborating and contradicting the hearsay statement are irrelevant to the admissibility of a statement incriminating the accused. State v. Gutierrez, 1995-NMCA-013, 119 N.M. 658, 894 P.2d 1014. Evaluation. - Declarations against interest must be evaluated on a statement-by-statement basis. State v. Torres, 1998-NMSC-052, 126 N.M. 477, 971 P.2d 1267. In addition to conducting a statement-by-statement review, a trial court should also examine the statement in light of all surrounding circumstances. State v. Martinez-Rodriguez, 2001-NMSC-029, 131 N.M. 47, 33 P.3d 267, cert. denied, 535 U.S. 937, 152 L. Ed. 2d 225, 122 S. Ct. 1317 (2002). Standard of review. - The appropriate inquiry for an admission of evidence under Paragraph B(3) is to determine whether the trial court's ruling constitutes an abuse of discretion. State v. Benavidez, 1999-NMSC-041, 128 N.M. 261, 992 P.2d 274. Self-exculpatory statements. - Collateral and self-exculpatory statements of the declarant are inadmissible. State v. Torres, 1998-NMSC-052, 126 N.M. 477, 971 P.2d 1267. Collateral portion of conversation being against interest insufficient. - In order to circumvent the usual requirement that testimony be given under oath and subject to cross-examination and the penalties of perjury, the precise matter offered for its truth ought to be against the interest of the declarant, and it is not enough that some collateral portion of the conversation is against the interest of the declarant; otherwise the circumstantial indicia of truthworthiness are not present to guarantee the reliability of the very matter being offered. State v. Self, 1975-NMCA-062, 88 N.M. 37, 536 P.2d 1093. Statements made by co-defendant. - Trial court correctly ruled exculpatory statements made by co-defendant inadmissible as hearsay, where the only corroborating circumstance under Paragraph B(3) was the defendant's confirmation of his statements. State v. Urias, 1999-NMCA-042, 127 N.M. 75, 976 P.2d 1027. Because the trial court could reasonably have determined that co-defendant's statements incriminated both co-defendant and defendant, and the statements were not made in an attempt to curry favor with the authorities, the trial court did not err in holding that the statements were admissible as statements against penal interest. State v. Alvarez-Lopez, 2003-NMCA-039, 133 N.M. 404, 62 P.3d 1286. Statement of co-conspirator. - A co-conspirator's declaration that defendant paid him for the killings qualified as a statement against penal interest because it implicated him for the crime of first degree murder and exposed him to liability for other crimes and, in context, provided a motive and supported an inference that he killed the victims. State v. Gonzales, 1999-NMSC-033, 128 N.M. 44, 989 P.2d 419, cert. denied, 529 U.S. 1025, 120 S. Ct. 1434, 146 L. Ed. 2d 323 (2000). The first paragraph of a note written by a co-conspirator which discussed the need for the four co-conspirator's to develop a consistent cover story was against the declarant's interest in that it revealed knowledge of the crimes and a consciousness of guilt. State v. Martinez-Rodriguez, 2001-NMSC-029, 131 N.M. 47, 33 P.3d 267, cert. denied, 535 U.S. 937, 152 L. Ed. 2d 225, 122 S. Ct. 1317 (2002). Statement of accomplice. - An out-of-court statement made by defendant's accomplice, implicating defendant, was not admissible when the accomplice did not testify and was not subject to cross-examination. State v. Duarte, 2004-NMCA-117, 136 N.M. 404, 98 P.3d 1054. Where the accomplice admitted attempting to sell marijuana to an undercover police officer, but claimed that defendant had given him directions about how to complete the sale, the statement was inadmissible. State v. Duarte, 2004-NMCA-117, 136 N.M. 404, 98 P.3d 1054. Statement made to friend of declarant. - Statement by a declarant to a friend in whom she often confided implicating herself, along with the defendant and two others in an armed robbery, was admissible as a statement against penal interest. State v. Gutierrez, 1995-NMCA-013, 119 N.M. 658, 894 P.2d 1014. Where a witness testified that her good friend, and accused's girlfriend, told the witness that she had been with the accused, had planned the robbery, and had driven to the service station where the robbery took place with the accused and others, and the girlfriend told the witness that she stayed in the car while the accused went into the station and that he had a knife, the trial court had not abused its discretion in admitting the statement under Paragraph B(4) of this rule. Gutierrez v. Dorsey, 105 Fed. Appx. 229 (10th Cir. 2004). Statements of fellow employees. - In a proceeding for termination of a city employee, non-self-inculpatory statements of absent coemployees of the employee were not admissible under Subparagraph (4) of Paragraph B. Chavez v. City of Albuquerque, 1997-NMCA-111, 124 N.M. 239, 947 P.2d 1059. Statements to law enforcement officer. - Deceased witness's statements to a law enforcement officer containing both self-inculpatory and nonself-inculpatory declarations were not admissible under Subparagraph (3) of Paragraph B. State v. Benavidez, 1999-NMCA-053, 127 N.M. 189, 979 P.2d 234. Exclusion of uncorroborated testimony of a defense witness who would have testified that a third party, prior to his death, told the witness that the heroin was his and that it was not defendant's was not plain error since the policy behind Subparagraph (4) of Paragraph B is to require corroboration in order to circumvent fabrication. State v. Anaya, 1976-NMCA-055, 89 N.M. 302, 551 P.2d 992. No error in finding no exception in statement not clearly against penal interest. - Where a witness' statements to his attorneys were not clearly against his penal interest and there was no corroborating evidence, it was not error for the court to find that the testimony did not fall within the exception to Subparagraph (4) of Paragraph B. State v. McGee, 1980-NMCA-180, 95 N.M. 317, 621 P.2d 1129. F. OTHER EXCEPTIONS. Notice required. - Paragraph X of Rule 11-803 NMRA and Paragraph B(5) of this rule, the two catchall exceptions to the hearsay rule, require prior notice to an adverse party. State v. Frank G., 2005-NMCA-026, 137 N.M. 137, 108 P.3d 534, cert. granted, 2005-NMCERT-002. Construction of "other exceptions" provision. - Subparagraph (6) of Paragraph B of this rule, like Rule 11-803X NMRA, cannot be read to mean that hearsay which almost, but not quite, fits another specific exception may be admitted under the "other exceptions" subsection of either rule. State v. Barela, 1982-NMCA-054, 97 N.M. 723, 643 P.2d 287. Statements offered under the New Mexico catch-all exception are presumptively unreliable and inadmissible under the confrontation clause unless they possess sufficient guarantees of trustworthiness to permit their admission into evidence. State v. Lopez, 2000-NMSC-003, 128 N.M. 410, 993 P.2d 727. A catch-all exception should not be used as a fall-back for second rate evidence that does not pass muster under other exceptions; it should be a method by which evidence that is of equal reliability but does not fall under a "firmly rooted" exception is admitted. State v. Gurule, 2004-NMCA-008, 134 N.M. 804, 82 P.3d 975. In determining the existence of "particularized guarantees of trustworthiness" required to admit hearsay when the established and named hearsay exceptions fail, corroborating evidence may not be considered; the court must look to see if the totality if circumstances surrounding the hearsay statements provide the required guarantees. State v. Gurule, 2004-NMCA-008, 134 N.M. 804, 82 P.3d 975. In criminal cases. - The "other" hearsay exceptions of Rules 11-803 and 11-804 NMRA must be far more stringently employed in criminal cases, particularly because of the confrontation clause of the sixth amendment, than in civil matters. State v. Barela, 1982-NMCA-054, 97 N.M. 723, 643 P.2d 287; State v. Taylor, 1985-NMCA-063, 103 N.M. 189, 704 P.2d 443. Testimony of deceased witness admissible. - The admission of hearsay testimony of a deceased witness was proper in a murder prosecution where it was offered to show the actions of the defendant during a relevant time frame, it was more probative on that point than any other evidence that could be produced, and its probative value was not outweighed by its prejudicial effect. State v. Mora, 1997-NMSC-060, 124 N.M. 346, 950 P.2d 789. Use of Subparagraph (6) of Paragraph B is an effective method of avoiding the exclusion of hearsay testimony that is clothed with special assurances or guarantees of trustworthiness. State v. Maestas, 1978-NMCA-084, 92 N.M. 135, 584 P.2d 182. Testimony of deceased witness not admissible. - Statement to an investigator by a witness who died approximately a month before trial was properly excluded where the trial court found that it was unreliable. State v. Coffin, 1999-NMSC-038, 128 N.M. 192, 991 P.2d 477. Murdered victim's opinion on sexual act. - In a prosecution for murder and criminal sexual penetration in which the defendant was accused of forcing the victim to have anal sexual intercourse after she had refused to do so willingly, testimony by the victim's cousin and close friend that the victim had stated she thought anal sex was disgusting and not intended by God was admissible. State v. Williams, 1994-NMSC-050, 117 N.M. 551, 874 P.2d 12. Error found. - Where defendants were charged with kidnapping and rape, the trial court's decision to allow an out-of-court alibi statement into evidence was error because it lacked any circumstantial guarantees of trustworthiness, and because it lacked sufficient indicia of reliability to satisfy confrontation concerns. Thus, admission of the out-of-court statement denied defendants their constitutional right to confront the person making the statement. State v. Pacheco, 1990-NMCA-071, 110 N.M. 599, 798 P.2d 200. Even though admission of the hearsay statement of a witness was error, it was harmless beyond a reasonable doubt because the testimony of other witnesses, in addition to physical evidence, provided substantial evidence to support the conviction without reference to that statement. State v. Lopez, 2000-NMSC-003, 128 N.M. 410, 993 P.2d 727. Law reviews. - For comment, "McGuinness v. State: Limiting the Use of Depositions at Trial," see 10 N.M.L. Rev. 207 (1979-80). 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 criminal procedure, see 12 N.M.L. Rev. 271 (1982). For annual survey of New Mexico law relating to evidence, see 12 N.M.L. Rev. 379 (1982). For article, "Survey of New Mexico Law, 1982-83: Evidence," see 14 N.M.L. Rev. 161 (1984). For annual survey of New Mexico law of evidence, 19 N.M.L. Rev. 679 (1990). Am. Jur. 2d, A.L.R. and C.J.S. references. - 29 Am. Jur. 2d Evidence § 690 et seq.; 29A Am. Jur. 2d Evidence § 906 et seq.; 31A Am. Jur. 2d Expert and Opinion Evidence § 5 et seq. Admissibility of declaration of persons other than members of family as to pedigree, 15 A.L.R.2d 1412. Admissibility, on issue of child's legitimacy or parentage, of declarations of parents, relatives, or the child, deceased or unavailable, 31 A.L.R.2d 989. Admissibility of advertisements, brochures, catalogs, and the like as containing admissions by a litigant contrary to a position taken by him, 44 A.L.R.2d 1027. Claim of privilege by a witness as justifying the use in criminal case of his testimony given on a former trial or preliminary examination, 45 A.L.R.2d 1354. Admissibility of dying declaration in civil case, 47 A.L.R.2d 526. Opinion of doctor or other attendant as to declarant's consciousness of imminent death so as to qualify his statement as dying declaration, 48 A.L.R.2d 733. Admissibility in evidence of withdrawn, superseded, amended, or abandoned pleading as containing admissions against interest, 52 A.L.R.2d 516. Admissibility and conclusiveness, as against insured, of statements in proof of loss, 58 A.L.R.2d 429. Admissibility of pleading as evidence against pleader, on behalf of stranger to proceedings in which pleading was filed, 63 A.L.R.2d 412. Admissibility, in action on employee fidelity bond or policy, of confessions or declarations of such employee no longer available as witness, 65 A.L.R.2d 631. Identity of subject matter or of issues as condition of admissibility in civil case of testimony or deposition in former proceeding of witness not now available, 70 A.L.R.2d 494. Admissibility of evidence of party's silence, as implied or tacit admission, when a statement is made by another in his presence regarding circumstances of an accident, 70 A.L.R.2d 1099. Use in civil case of testimony given in criminal case by witness no longer accessible, 70 A.L.R.2d 1179. Admissibility, on behalf of one of multiple defendants in accident case, of admission against interest made out of plaintiff's presence by another defendant to a fourth person, 73 A.L.R.2d 1180. Binding effect, upon party litigant, of testimony of his witnesses at a former trial, 74 A.L.R.2d 521. Propriety and prejudicial effect of showing, in criminal case, withdrawn guilty plea, 86 A.L.R.2d 326. Admissibility in criminal trial of dying declarations involving an asserted opinion or conclusion, 86 A.L.R.2d 905. Admissibility of homicide victim's statements exculpating the accused, 95 A.L.R.2d 637. Admissibility of statements of coconspirators made after termination of conspiracy and outside accused's presence, 4 A.L.R.3d 671. Admissibility in evidence of deposition as against one not a party at time of its taking, 4 A.L.R.3d 1075. Admissibility, in civil case, of expert or opinion evidence as to proposed witness' inability to testify, 11 A.L.R.3d 1360. Party's right to use, as evidence in civil trial, his own testimony given upon interrogatories or depositions taken by opponent, 13 A.L.R.3d 1312. Admissibility, in civil action, of confession or admission which could not be used against party in criminal prosecution because obtained by improper police methods, 43 A.L.R.3d 1375. 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: statements of declarant as sufficiently showing consciousness of impending death to justify admission of dying declaration, 53 A.L.R.3d 785. Comment note: sufficiency of showing of consciousness of impending death, by circumstances other than statements of declarant, to justify admission of dying declaration, 53 A.L.R.3d 1196. Admissibility of former testimony of nonparty witness, present in jurisdiction, who refuses to testify at subsequent trial without making claim of privilege, 92 A.L.R.3d 1138. Admissibility, as against interest, in criminal case of declaration of commission of criminal act, 92 A.L.R.3d 1164. Denial of recollection as inconsistent with prior statement so as to render statement admissible, 99 A.L.R.3d 934. Sufficiency of efforts to procure missing witness' attendance to justify admission of his former testimony - state cases, 3 A.L.R.4th 87. Admissibility of evidence concerning words spoken while declarant was asleep or unconscious, 14 A.L.R.4th 802. Admissibility of testimony regarding spontaneous declarations made by one incompetent to testify at trial, 15 A.L.R.4th 1043. Admissibility or use in criminal trial of testimony given at preliminary proceeding by witness not available at trial, 38 A.L.R.4th 378. Former testimony used at subsequent trial as subject to ordinary objections and exceptions, 40 A.L.R.4th 514. Dead man's statutes as affected by Rule 601 of the Uniform Rules of Evidence and similar state rules, 50 A.L.R.4th 1238. Residual hearsay exception where declarant unavailable: Uniform Evidence Rule 804B(5), 75 A.L.R.4th 199. Construction and application of provision of Rule 803(8)(B), Federal Rules of Evidence, excluding from exception to hearsay rule in criminal cases matters observed by law enforcement officers, 37 A.L.R. Fed. 831. Who is "predecessor in interest" for purposes of Rule 804(b)(1) of Federal Rules of Evidence, 47 A.L.R. Fed. 895. Admissibility of testimony before grand jury of unavailable witness under Rule 804(b)(5), Federal Rules of Evidence, providing for admission of hearsay statement not covered by any specific exception but having equivalent circumstantial guaranties of trustworthiness, 50 A.L.R. Fed. 848. Effect on federal criminal proceeding of unavailability to defendant of alien witness through deportation or other government action, 56 A.L.R. Fed. 698. Admissibility of statement made to government agent by unavailable witness, under Rule 804(b)(5) of Federal Rules of Evidence, providing for admissibility of hearsay statement not covered by any specific exception but having equivalent circumstantial guaranties of trustworthiness, 61 A.L.R. Fed. 915. Admissibility of depositions under Federal Evidence Rule 804(b)(1), 84 A.L.R. Fed. 668. When do corroborating circumstances clearly indicate trustworthiness of hearsay statement tending to expose declarant to criminal liability and offered to exculpate accused, so as to permit admission of statement under Rule 804(b)(3) of Federal Rules of Evidence (28 USCS Appx), 125 A.L.R. Fed. 477. When is witness "unavailable" for purposes of admission of evidence under Rule 804 of Federal Rules of Evidence, providing hearsay exception where declarant is unavailable, 174 A.L.R. Fed. 1 23 C.J.S. Criminal Law §§ 867 et seq., 951, 960; 31A C.J.S. Evidence §§ 265, 269, 273 et seq.; 32 C.J.S. Evidence §§ 349 et seq., 478.