N.M. Admin. Code § 7.3.2.15
Current through Register Vol. 35, No. 23, December 10, 2024
A. Citations and Regulations: (1)24-11-8 NMSA 1978: The state or district medical investigator shall promptly report his findings, or the findings of a deputy medical investigator that has performed an investigation under his direction, to the district attorney in each death investigated. Upon request of the district attorney, the state or district medical investigator shall send a complete record of the medical investigation in any case, including a transcript of the testimony of witnesses examined at any inquest.(2) Memorandum #1790: 9/30/82 from department of finance and administration, budget division, subject: expert witness fee guidelines: Expert witness fees are all expenses charged by a witness who is called for court testimony as a direct result of that persons' expertise or specialized skill. An expert witness is not a character witness or witness-of-fact. In most cases, the prosecution or the defense will call the expert witnesses; however, a judge may also occasionally choose to call an expert witness for testimony. (a) The office of the medical investigator (OMI) is not to charge the state professional fees for consultation or testimony by its staff or faculty. However, it may charge mileage and per diem, or chartered plane costs as necessary. Therefore, the agency using OMI is responsible for notifying OMI immediately if a plea bargain or cancellation occurs to avoid unnecessary travel expenses to the state and inconvenience to OMI.(b) An OMI faculty forensic pathologist will participate in all autopsies and will sign the report along with the resident who assisted in the autopsy. Therefore, either the resident or the faculty member may be subpoenaed to testify. The OMI would prefer to have the resident testify if he/she is still available as part of his/her training in forensic pathology. When preparing the subpoena, please contact OMI to determine if the resident is still with OMI. If the resident has left OMI, the supervising faculty member is to be subpoenaed for court testimony. Use of former OMI staff or faculty should only occur as a last resort.(c) In general, the agency which calls the expert witness will be responsible for payment of the fees.(d) Criminal proceedings: (i) Criminal proceedings in district court: Whoever calls an expert witness shall pay the fees of that witness.(ii) Preliminary hearings and bond arraignments in magistrate court: Whoever calls an expert witness shall pay the fees of that witness. Since the purpose of a preliminary hearing is to determine probable cause, and not determine guilt or innocence, the need for expert witnesses in magistrate court should be minimal.(iii) Criminal grand jury proceedings: Whoever calls an expert witness shall pay the fees of that witness. The administrative office of the courts shall pay for any expert who is called specifically by the grand jury and who conducts an examination testimony at the direct request of the judge. Since the purpose of a grand jury is to determine probable cause, and not to determine guilt or innocence, the need for an expert witness in a Grand Jury proceeding should be minimal.B. Policy: (1) All representatives of the office of the medical investigator may be subpoenaed to a variety of legal hearings to provide information in a particular case.(2) Subpoenas may be issued by prosecution or defense; at times, the representative of the OMI can be subpoenaed by both for the same case.(3) The testimony of the representative of the OMI is based on the factual observations of that individual. As such, the testimony is neutral testimony. The supporting or refuting of an allegation is the responsibility of the counsels in the case, based on the hearing of the neutral testimony.(4) Failure to respond to a subpoena represents contempt of court, and a bench warrant may be issued for the subpoenaed person at the discretion of the judge.(5) ALL representatives of the OMI upon receiving subpoenaes must notify the central office. The only official file on any OMI case is at the central office. Any notes made by the DMI at the scene of a death are considered original source materials and may be used during court testimony.(6) Any representative receiving a subpoena duces tecum is to bring designated records or documents with him to the court appearance. Only records at the central office will be used in this matter, and they are to be reproduced and certified by central office personnel prior to the court appearance.(7) See also - Records, Section G [now 7.3.2.14 NMAC]N.M. Admin. Code § 7.3.2.15