Legal Memorandum: Exceptions allow an unavailable declarant’s statements into evidence

Issue: Under the New Mexico Rules of Evidence, what exceptions to the hearsay rule will allow the introduction of evidence otherwise characterized as hearsay, if the declarant is not available to testify?

Area of Law: Litigation & Procedure, Uncategorized
Keywords: ; Evidence; Hearsay; Declarant; Unavailable; Exception; Criminal
Jurisdiction: New Mexico
Cited Cases: 129 P.2d 640; 445 P.2d 393; 233 P. 49; 546 P.2d 863; 30 N.M. 309; 89 N.M. 15; 704 P.2d 443; 5 N.M. 365; 38 N.M. 550; 23 P. 175; 37 P.2d 802
Cited Statutes: None
Date: 11/01/2015

Rule 11-804 provides exceptions for the use of hearsay evidence provided the declarant is not available to testify.  The rule sets forth the situations under which a declarant will be deemed to be unavailable to testify.

"Unavailability as a witness" includes situations in which the declarant


(1)       is exempted from testifying about the subject matter of the declarant’s statement because the court rules that a privilege applies,


(2)        refuses to testify about the subject matter despite a court order to do so,


(3)        testifies to not remembering the subject matter,


(4)        cannot be present to testify at the trial or hearing because of death or a then-existing infirmity, physical illness, or mental illness, or


(5)        is absent from the trial or hearing and the statement’s proponent has not been able, by process or other reasonable means, to procure


(a)         the declarant’s attendance, in the case of a hearsay exception under Rule 11-804(B)(1) or (5) NMRA, or


(b)        the declarant’s attendance or testimony, in the case of a hearsay exception under Rule 11-804(B)(2), (3), or (4) NMRA.


Rule 11-804(A) (2015). 

A practitioner may not simply take advantage of the rule by declaring […]

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