N.M. R. Evid. 11-901
N.M. R. Evid. 11-901
Committee commentary. - The language of Rule 11-901 NMRA was amended in 2012 to be consistent with the restyling of the Federal Rules of Evidence, effective December 1, 2011, to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. There is no intent to change any result in any ruling on admissibility.
[As amended by Supreme Court Order No. 12-8300-015, effective for all cases pending or filed on or after June 16, 2012.]
ANNOTATIONS The 2012 amendment, approved by Supreme Court Order No. 12-8300-015, effective for all cases pending or filed on or after June 16, 2012, rewrote the title of the rule and the rule to make stylistic changes. Compiler's notes. - This rule is similar to Rule 901 of the Federal Rules of Evidence. Chain of custody. - Where, during a search incident to arrest, the arresting police officer found on defendant a plastic "bindle" containing a white crystalline substance which the officer recognized as methamphetamine; the arresting officer observed another officer perform a presumptive field test on the substance; the arresting officer took the substance into evidence and transferred the substance to an evidence technician who sent the substance to the state laboratory; an analyst in the drug analysis unit obtained the evidence from the laboratory's evidence custodian; the analyst performed two tests on the evidence and concluded that the substance was methamphetamine; the analyst sealed the evidence so that it would be apparent if anyone tried to tamper with or alter it and returned the evidence to the evidence custodian, there was sufficient evidence to support the verdict that the substance seized from defendant was the same substance that was tested by the state laboratory and determined to be methamphetamine. State v. Rodriguez, 2009-NMCA-090, 146 N.M. 824, 215 P.3d 762. General rule requiring authentication of records. - Unless records fall within the narrow exception for self-authenticating documents (set out in Rule 11-902 NMRA), they must be authenticated. Thus, public records or reports admissible under Rule 11-803 NMRA (dealing with factual findings resulting from authorized investigations) must be authenticated. State v. Ramirez, 1976-NMCA-101, 89 N.M. 635, 556 P.2d 43, overruled on other grounds, City of Albuquerque v. Haywood, 1998-NMCA-029, 124 N.M. 661, 954 P.2d 93, cert. denied, 124 N.M. 589, 953 P.2d 1087. Methods of identifying real evidence. - In order to admit real or demonstrative evidence at trial, the item of evidence in question must be identified either visually or by establishing the custody of the object from the time it was seized to the time it is offered in evidence. For admission, it suffices if evidence establishes that it is more probable than not the object is the one connected with the case, and a preponderance of the evidence is sufficient to show this. State v. Chavez, 1973-NMCA-036, 84 N.M. 760, 508 P.2d 30. Guidelines for the admission into evidence of items identified, either visually or by establishing custody of them, are: (1) the item must be identified from the time it was obtained to the time it was offered in evidence (it suffices if the evidence established is more probable than not that the item is one connected with the case; a preponderance of the evidence is sufficient); (2) factors to be considered include (a) the nature of the item; (b) the circumstances surrounding the preservation and custody of it; and (c) the likelihood of intermeddlers tampering with it, and (3) if the trial judge is satisfied within a reasonable probability that the item has not been changed in important respects, he may permit its introduction into evidence. South v. Lucero, 1979-NMCA-046, 92 N.M. 798, 595 P.2d 768, cert. denied, 92 N.M. 675, 593 P.2d 1078. Foundation for admitting copy of letter. - Testimony by insured that he received carbon copy of letter sent by his attorney to insurer and that signature appeared to be his attorney's was adequate foundation for admitting carbon copy of letter. State Farm Fire & Cas. Co. v. Price, 1984-NMCA-036, 101 N.M. 438, 684 P.2d 524, overruled on other grounds, Ellingwood v. N.N. Investors Life Ins. Co., 1991 -NMSC-006, 111 N.M. 301, 805 P.2d 70. Foundation for admitting telephone conversations. - Facts support admissibility of telephone conversation between defendant and witness. State v. Garcia, 1990-NMCA-065, 110 N.M. 419, 796 P.2d 1115. 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 without requiring the state to first lay a proper foundation for their admission, the trial court did not abuse its discretion in admitting the text messages, because the state's evidence linking defendant to the phones from where the text messages came and evidence tying the phones to the circumstances giving rise to defendant's human trafficking and prostitution-related charges was adequate to authenticate the exhibit. State v. Jackson, 2018-NMCA-066, cert. denied. Foundation for identifying voices on an audio recording. - In defendant's trial for racketeering and conspiracy to commit racketeering, where defendant claimed that the district court improperly admitted the transcript of an audio recording in which a detective identified four distinct voices, including defendant's voice, the State's evidence that the detective became familiar with the individual voices by speaking with defendant on two separate occasions on the day of his arrest, by monitoring between six and eight of defendant's telephone conversations during defendant's pre-trial incarceration, and by interviewing or monitoring telephone conversations involving the other three individuals on the audio recording, the in-person conversations and monitoring activities provided sufficient foundation for the detective to identify the voices on the audio recording. State v. Loza, 2016-NMCA-088, cert. denied. Foundation for admitting surveillance video. - Where defendant was charged with forgery and identity theft based on allegations of check fraud at Wal-Mart, the trial court did not abuse its discretion in admitting Wal-Mart surveillance videos which included computer-generated graphics indicating the date and time of the transactions, because the State offered sufficient evidence to authenticate the surveillance video based on testimony by a Wal-Mart asset protection associate who testified that the images on the surveillance video were from the Wal-Mart location at which she works, the date and time information is programmed remotely, local employees do not have the ability to manipulate that information, and she is able to download surveillance video from specific dates and times for up to ninety days, and the investigating detective testified that the surveillance video was downloaded in response to his request for records of specific dates and times where defendant attempted to cash checks; the State produced foundational evidence to support a finding that the evidence at issue, the surveillance videos and the computer generated graphics, is what the State purports it to be. State v. Imperial, 2017-NMCA-040, cert. denied. Prison files kept in course of business authenticated. - Where a handwriting expert testifies that the writing on two notes allegedly written by the defendant inmate is the same as the handwriting which appears on documents in the inmate's file, evidence that the files are kept in the regular course of penitentiary business provides proper authentication; therefore, the notes are admissible. State v. Stephens, 1979-NMSC-074, 93 N.M. 368, 600 P.2d 820. 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. State's exhibit copy of document in penitentiary's central file properly authenticated. - Where custodian of inmate records at state penitentiary testified he maintains all inmate files and that the judgment and sentence was a document which routinely accompanies a prisoner when he is admitted to the facility, that state's exhibit was a copy of the document in the penitentiary's central file, that that document is also a copy and that he had no reason to question the document's authenticity, the document, under the facts of this case, was properly authenticated. State v. Ellis, 1980-NMCA-187, 95 N.M. 427, 622 P.2d 1047. Chain of custody of tires established. - Where the record discloses that the defendant obtained tires from a wholesale and retail tire company by representing that he was a "tire broker," that the tires were picked up by the defendant's son on September 17, 1971, that defendant had orders from some customers who operated trading posts on the Navajo reservation, that on September 20, 1971, the defendant sold the tires, that the tires remained continuously in the purchaser's store until January 14, 1972, when he turned them over to a police detective, and that the officer identified the tires by his initials and the date he had placed on each tire at the time he received them from proprietor and that the officer had then checked them into the evidence room of the police department where they had remained until he brought them to the courthouse, then the chain of custody was clearly established and the tires are admissible in evidence. State v. Seifried, 1973-NMCA-007, 84 N.M. 581, 505 P.2d 1257. Conflicting testimony as to chain of custody does not render evidence inadmissible. State v. Chavez, 1973-NMCA-036, 84 N.M. 760, 508 P.2d 30. Identical condition and absence of tampering need not be shown. - It is not necessary that article offered in evidence be identically the same as at time in controversy, and it is also unnecessary to show absence of tampering on part of every person through whose hands article has passed since as long as article can be identified it is immaterial in how many or in whose hands it has been. State v. Chavez, 1973-NMCA-036, 84 N.M. 760, 508 P.2d 30. Facts which authenticate a reply letter are that letter discloses knowledge that only purported signer would be likely to have, that letter purports to be written by addressee of prior letter and purports to be a reply thereto (either refers to it or is responsive to its terms) and that letter has been received without unusual delay. Ballard v. Miller, 1974-NMSC-091, 87 N.M. 86, 529 P.2d 752. Where defendant, a franchisee, wrote checks provided by franchisor payable to herself and co-defendant, neither of whom was authorized to receive these funds, in amounts totaling over $200,000, and where defendant was charged with forgery, conspiracy to commit forgery, fraud, conspiracy to commit fraud and embezzlement, and co-defendant was charged with forgery, conspiracy to commit forgery, fraud (between $2,500 and $20,000) and fraud (over $20,000), the district court did not err in admitting a letter containing certain admissions purportedly written by co-defendant while in jail, where the letter had been sufficiently authenticated by a jail administrator. State v. Candelaria, 2019-NMCA-032, cert. denied. Failure to lay foundation for admission of possible bullet. - Where defendant, who was charged with the murder of the victim, claimed that the victim shot at defendant and defendant shot the victim is self-defense; defendant sought to introduce into evidence an unidentified hard fragment found in the lining of the jacket defendant wore at the time of the shooting in an attempt to bolster defendant's claim that the victim shot defendant in the shoulder; and defendant did not offer any evidence that the unidentified fragment might have been a bullet, defendant failed to lay a foundation for the admissibility of the unidentified fragment that would show how the unidentified fragment would be relevant to the claim of self-defense. State v. Arrendondo, 2012-NMSC-013, 278 P.3d 517. Authentication or verification of photographs prerequisite to their admission into evidence may be made by photographer or by any witness whose familiarity with subject matter represented qualifies him to testify as to correctness of representation of objects or scenes portrayed in photographs. State ex rel. State Hwy. Dep't v. Kistler-Collister Co., 1975-NMSC-039, 88 N.M. 221, 539 P.2d 611. In a habitual offender proceeding where witness identified photograph of defendant showing defendant as he appeared when admitted to penitentiary in December of 1974, this was a sufficient basis for admission of photograph; fact that witness had not personally taken photograph nor seen photograph taken was not grounds for its exclusion. State v. Gallegos, 1977-NMCA-113, 91 N.M. 107, 570 P.2d 938. Authentication by witness with knowledge. - Entries on a ledger copied from original invoices were admissible if person keeping books was present and testified as to their correctness. Anderson, Clayton & Co. v. Swallows, 1973-NMSC-007, 84 N.M. 486, 505 P.2d 431. The affidavit of the state penitentiary's medical records director, stating that attached exhibits represented an accurate summary of the medical records maintained by the penitentiary, sufficiently demonstrated personal knowledge and that the records were what they purported to be, and were properly considered by the court in ruling upon the defendant's motion for summary judgment in an inmate's civil rights action. Archuleta v. Goldman, 1987-NMCA-049, 107 N.M. 547, 761 P.2d 425. Where witness identified fingerprint records taken from penitentiary records of defendant and testified that he was custodian of said records and that processing upon admission of an inmate to penitentiary included obtaining identifying data including fingerprints and photographs, this evidence authenticated fingerprint records. State v. Gallegos, 1977-NMCA-113, 91 N.M. 107, 570 P.2d 938. Proper foundation for admission of exhibits in form of plats or diagrams showing proposed redesign of parking spaces on property affected by condemnation proceedings was laid where, despite fact that they were not physically prepared by witness who identified them, exhibits were prepared at his request and he participated in their preparation and no question was raised as to accuracy of their representation or portrayal. State ex rel. State Hwy. Dep't v. Kistler-Collister Co., 1975-NMSC-039, 88 N.M. 221, 539 P.2d 611. Police officer deemed witness with knowledge sufficient to provide required authentication of sales receipt for defendant's gun. State v. Mata y Rivera, 1993-NMCA-011, 115 N.M. 424, 853 P.2d 126. Authentication of public record by a witness of knowledge. - Where defendant was convicted of forgery, conspiracy to commit forgery, and perjury, and where the trial court admitted, over defendant's objection, an "Affidavit of New Mexico Residency by a Relative, Friend, Employer or Other", signed by defendant and provided to the Motor Vehicle Division (MVD) in connection with the driver's license application of a foreign national vouching for the residency of the foreign national, the affidavit was properly authenticated where the testimony of an MVD manager established that he was a person with knowledge of the policies and procedures at MVD and that the affidavit was a record from an MVD office in which documents such as the affidavit are kept; the testimony was sufficient to lay a foundation that the document was what it was purported to be. State v. Leong, 2017-NMCA-070, cert. denied. Where plaintiff conceded that the almost illegible document attached to defendant's motion exhibited the exact characteristics of the document that plaintiff stated he had signed, district court correctly concluded that the document attached to defendant's motion was what defendant claimed it was. Murken v. Deutsche Morgan Grenfell, Inc., 2006-NMCA-080, 140 N.M. 68, 139 P.3d 864. The New Mexico test for suppressing out-of-court identification does not rest entirely on whether the identification procedure was impermissibly suggestive. Rather, the totality of the circumstances leading to the reliability of the identification is to be weighed against the corrupting effect of the suggestive identification. State v. Padilla, 1982-NMCA-100, 98 N.M. 349, 648 P.2d 807. Court documents. - The testimony of an attorney who has participated in civil litigation and can adequately identify documents pertaining to that litigation should be sufficient to support admission of the documents. Spear v. McDermott, 1996-NMCA-048, 121 N.M. 609, 916 P.2d 228. Law reviews. - For article, "Evidence," see 12 N.M.L. Rev. 379 (1982). Am. Jur. 2d, A.L.R. and C.J.S. references. - 29A Am. Jur. 2d Evidence § 934 et seq.; 31A Am. Jur. 2d Expert and Opinion Evidence §§ 144 et seq., 278 to 309. Authentication or verification of photograph as basis for introduction in evidence, 9 A.L.R.2d 899, 41 A.L.R.4th 812, 41 A.L.R.4th 877. Admissibility of evidence of fact of making or receiving telephone calls, 13 A.L.R.2d 1409. Fingerprints, palm prints, or bare footprints as evidence, 28 A.L.R.2d 1115, 45 A.L.R.4th 1178. Mode and degree of proof required to establish genuineness of handwriting offered as standard or exemplar for comparison with a disputed writing or signature, 41 A.L.R.2d 575. Blood grouping tests, 46 A.L.R.2d 1000, 43 A.L.R.4th 579. Admissibility in civil action of electroencephalogram, electrocardiogram, or other record made by instrument used in medical test, or of report based upon such test, 66 A.L.R.2d 536. Identification of accused by his voice, 70 A.L.R.2d 995. Federal Civil Procedure Rule 44 and Federal Criminal Procedure Rule 27, relating to proof of official records, 70 A.L.R.2d 1227, 41 A.L.R. Fed. 784. Admissibility of evidence as to extrajudicial or pretrial identification of accused, 71 A.L.R.2d 449, 29 A.L.R.4th 104. Competency, as a standard of comparison to establish genuineness of handwriting, of writings made after controversy arose, 72 A.L.R.2d 1274. Proof of authorship or identity of sender of telegram as prerequisite of its admission in evidence, 5 A.L.R.3d 1018. Admissibility and weight of voiceprint evidence, 97 A.L.R.3d 294. Business records: authentication and verification of bills and invoices under Rule 803(6) of the Uniform Rules of Evidence, 1 A.L.R.4th 316. Cautionary instructions to jury as to reliability of, or factors to be considered in evaluating, voice identification testimony, 17 A.L.R.5th 851. Admissibility of evidence of voice identification of defendant as affected by allegedly suggestive voice lineup procedures, 55 A.L.R.5th 423. Authentication of bullets and other inorganic substances removed from human body for purposes of analysis, 79 A.L.R.5th 237. Admissibility in evidence of aerial photographs, 85 A.L.R.5th 671. 22A C.J.S. Criminal Law § 799 et seq.; 31A C.J.S. § 211; 32 C.J.S. Evidence § 528 et seq.; 32A C.J.S. Evidence §§ 801 et seq., 870 et seq., 982, 1010.