Legal Memorandum: If safeguards are met, despite testimony constituting hearsay, testimony may be allowed

Issue: Under the New Mexico Rules of Evidence, when will a court find that evidence, otherwise characterized as hearsay, does not fall within the rule?

Under New Mexico Rule 11-803, testimony may not be subject to the rule governing hearsay if it meets certain safeguards.  The rule contains a listing of numerous situations the rules’ drafters considered sufficiently trustworthy that an inability to cross-examine would not prejudice the opponent of the evidence.  Specifically,

[t]he following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness:

(1)      Present sense impression. A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it;

(2)      Excited utterance. A statement relating to a startling event or condition, made while the declarant was under the stress or excitement that it caused;

(3)     Then-existing mental, emotional, or physical condition. A statement of the declarant’s then-existing state of mind (such as motive, intent, or plan) or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the validity or terms of the declarant’s will.

(4)     Statement made for medical diagnosis or treatment. A statement that

(a)        is made for—and is reasonably pertinent to—medical diagnosis or treatment, and

(b)        describes medical history, past or present symptoms, pain, […]

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