Witnesses and Their Competency

NMSA 1978 ch. 38, art. 6

in effect

NMSA 1978, § 38-6-4 Per diem and mileage for witnesses

38-6-4. Per diem and mileage for witnesses A. Witnesses shall be allowed no fees for services, but shall receive per diem expense and mileage at the rate specified for nonsalaried public officers as provided in the Per Diem and Mileage Act [10-8-1 to 10-8-8 NMSA 1978] for that time in which attendance is required, with certification of the clerk of the court. B. The district judge in any civil case pending in the district court may order the payment of a reasonable fee, to be taxed as costs, in addition to the per diem and mileage as provided for in Subsection A of this section, for any witness who qualifies as an expert and who testifies in the cause in person or by deposition. The additional compensation shall include a reasonable fee to compensate the witness for the time required in preparation or investigation prior to the giving of the witness's testimony. The expert witness fee which may be allowed by the court shall be limited to one expert regarding liability and one expert regarding damages unless the court finds that additional expert testimony was reasonably necessary to the prevailing party and the expert testimony was not cumulative. C. The provisions of this section shall apply only to cases filed on or after its effective date. Laws 1887, ch. 40, § 1; C.L. 1897, § 1810; Code 1915, § 5898; C.S. 1929, § 155-104; 1941 Comp., § 20-104; 1953 Comp., § 20-1-4; Laws 1959, ch. 62, § 1; 1971, ch. 139, § 1; 1975, ch. 105, § 1; 1983, ch. 189, § 1.

NMSA 1978, § 38-6-6 Privileged communications

38-6-6. Privileged communications A. No husband shall be compelled to disclose any communication made by his wife during the marriage, and no wife shall be compelled to disclose any communication made to her by her husband during the marriage. B. An attorney cannot, without the consent of his client, be examined as to any communication made by the client to him, or his advice given thereon in the course of professional employment; nor can an attorney's secretary, stenographer or clerk be examined, without the consent of his employer, concerning any fact the knowledge of which has been acquired in such capacity. C. In the courts of the state, no certified public accountant or public accountant shall be permitted to disclose information obtained in the conduct of any examination, audit or other investigation made in a professional capacity, or which may have been disclosed to said accountant by a client, without the consent in writing of such client or his, her or its successors or legal representatives. D. If a person offers himself as a witness and voluntarily testifies with reference to the communications specified in this section, that is a consent to the examination of the person to whom the communications were made as above provided. Laws 1880, ch. 12, § 7; C.L. 1884, § 2081; C.L. 1897, § 3020; Code 1915, § 2174; C.S. 1929, § 45-512; Laws 1933, ch. 33, § 1; 1939, ch. 235, § 1; 1941 Comp., § 20-112; 1953 Comp., § 20-1-12; Laws 1973, ch. 223, § 1.

NMSA 1978, § 38-6-7 News sources and information; mandatory disclosure prohibited; definitions; special procedure for prevention of injustice issue

38-6-7. News sources and information; mandatory disclosure prohibited; definitions; special procedure for prevention of injustice issue A. Unless disclosure be essential to prevent injustice, no journalist or newscaster, or working associates of a journalist or newscaster, shall be required to disclose before any proceeding or authority, either: (1) the source of any published or unpublished information obtained in the gathering, receiving or processing of information for any medium of communication to the public; or (2) any unpublished information obtained or prepared in gathering, receiving or processing of information for any medium of communication to the public. B. For the purpose of this act [this section]: (1) "proceeding or authority" includes any proceeding or investigation before, or by, any legislative, judicial, executive or administrative body or person; (2) "medium of communication" means any newspaper, magazine, press association, news service, wire service, news or feature syndicate, broadcast or television station or network, or cable television system; (3) "information" means any written, oral or pictorial news or other material; (4) "published information" means any information disseminated to the public by the person from whom disclosure is sought; (5) "unpublished information" includes information not disseminated to the public by the person from whom disclosure is sought, whether or not related information has been disseminated, and includes but is not limited to, all notes, news copy, outtakes, photographs, films, recording tapes or other data of whatever sort not disseminated to the public through a medium of communication; (6) "processing" includes compiling, storing and editing of information; (7) "journalist" means any person who, for gain is engaged in gathering, preparing, editing, analyzing or commenting on news for a newspaper, magazine, news agency, news or feature syndicate, press association or wire service, or who was so engaged at the time a source or information was procured; (8) "newscaster" means any person who, for gain is engaged in gathering, preparing, editing, analyzing, commenting on or broadcasting news for radio or television transmission, or who was so engaged at the time a source or information was procured; and (9) "working associates [associate]" means any person who works for the person, in his capacity as a journalist or newscaster, from whom a source or information is sought and who was so engaged at the time a source or information was procured, or any person employed by the same individual or entity that employs the person, in his capacity as a journalist or newscaster, from whom a source or information is sought, and who was so engaged at the time a source or information was procured. C. If the proceeding in which disclosure is sought is in the district court, that court will determine whether disclosure is essential to prevent injustice. In all other proceedings, application shall be made to the district court of the county in which the proceeding is being held for an order for disclosure. Disclosure shall, in no event, be ordered except upon written order of the district court stating the reasons why disclosure is essential to prevent injustice. Such an order is appealable to the supreme court if the appeal is docketed in that court within ten days after its entry. The matter shall be considered as an extraordinary proceeding and shall be heard de novo and within twenty days from date of docketing. The taking of an appeal shall operate to stay proceedings as to the prevention of injustice issue only in the district court. 1953 Comp., § 20-1-12.1, enacted by Laws 1973, ch. 31, § 1.

NMSA 1978, § 38-6-8 Witnesses with developmental or intellectual disability; competency evaluation

38-6-8. Witnesses with developmental or intellectual disability; competency evaluation A. As used in this section: (1) "witness with a developmental or intellectual disability" means a witness in a proceeding whom the court has found after hearing, as provided in Subsection B of this section, to have a developmental or intellectual disability; and (2) "developmental or intellectual disability" means a substantial limitation in present functioning characterized by significantly subaverage intellectual functioning, existing concurrently with related limitations in two or more of the following applicable skill areas: communication, self-care, home living, social skills, community use, self-direction, health and safety, functional academics, leisure and work. B. In any judicial proceeding wherein a witness with a developmental or intellectual disability may or will testify, the court on its own motion or on motion of the proponent of the witness with a developmental or intellectual disability, and after hearing, may order the use of one of the alternative procedures for determining competency to testify or for taking the testimony of the witness with a developmental or intellectual disability described below, provided that the court finds at the time of the order, by a preponderance of the evidence in the case, that the witness with a developmental or intellectual disability is likely, as a result of submitting to usual procedures for determining competency or as a result of testifying in open court: (1) to suffer unreasonable and unnecessary mental or emotional harm; or (2) to suffer a temporary loss of or regression in cognitive or behavioral functioning or communicative abilities such that the witness's ability to testify will be significantly impaired. C. If the court orders the use of an alternative procedure pursuant to this section, the court shall make and enter specific findings on the record describing the reasons for such order. D. A court that makes findings in accordance with Subsection B of this section may order any of the following suitable alternative procedures for determining the competency to testify or for taking the testimony of the witness with a developmental or intellectual disability: (1) taking the testimony of the witness with a developmental or intellectual disability while permitting a person familiar to the witness such as a family member, clinician, counselor, social worker or friend to sit near or next to the witness; (2) taking the testimony of the witness with a developmental or intellectual disability in court but off the witness stand; (3) if the proceeding is a bench proceeding, taking the testimony of the witness with a developmental or intellectual disability in a setting familiar to the witness; (4) if the proceeding is a jury trial, videotaping of testimony, out of the presence of the jury or in a location chosen by the court or by agreement of the parties; or (5) the procedure set forth in Paragraph (1) in combination with Paragraph (2), (3) or (4) of this subsection. E. Testimony taken by a videotape pursuant to an order issued as provided in Subsection B of this section shall be taken in the presence of the judge, counsel for all parties and such other persons as the court may allow. Counsel shall be given the opportunity to examine, confront or cross-examine the witness with a developmental or intellectual disability to the same extent as would be permitted if ordinary procedures had been followed, subject to such protection of the witness as the judge deems necessary. F. An order issued pursuant to provisions of Subsection B of this section that the testimony of the witness with a developmental or intellectual disability be videotaped out of the presence of the jury shall provide that the videotape be shown in court to the jury in the presence of the judge, the parties and the parties' counsel. At such courtroom showing, the audio portion of the video shall be entered into the record as would any oral testimony and shall be treated in all respects as oral testimony to the jury. G. The videotape or giving of testimony taken by an alternative procedure pursuant to an order issued as provided in Subsection B of this section shall be admissible as substantive evidence to the same extent as and in lieu of live testimony by the witness in any proceeding for which the order is issued or in any related proceeding against the same party when consistent with the interests of justice; provided that such an order is entered or re-entered based on current findings at the time when, or within a reasonable time before, the videotape or testimony is offered into evidence, and provided, in the case of a related criminal proceeding, that the requirements of Subsection E of this section were satisfied when the videotape was recorded or the alternative procedure was used. H. Whenever, pursuant to an order issued as provided in Subsection B of this section, testimony is recorded on videotape, the court shall ensure that: (1) the recording equipment is capable of making an accurate recording and is operated by a competent operator; (2) the recording is in color and is taken in well-lit conditions; (3) the presence of the presiding judge, the attorneys, the defendant or parties, if in the room, and all other persons present is stated on the recording; (4) the witness with a developmental or intellectual disability is visible at all times and, to the extent reasonably possible, the recording shows all persons present in the room as a jury would perceive them in open court; (5) every voice on the recording is audible and identifiable; (6) the recording is accurate, undistorted in picture or sound quality and has not been altered except as ordered by the court; and (7) each party is afforded the opportunity to view the recording before it is shown in the courtroom. I. The fact that the witness with a developmental or intellectual disability has been found in a court proceeding to be incompetent to make informed decisions of a personal, medical or financial nature or is under a guardianship or conservatorship shall not preclude the witness from testifying if found competent to testify and, further, shall not preclude a determination of competency to testify. J. The use of alternative procedures shall not be denied because they may take significantly more time than conventional procedures. K. Expert opinion shall be admissible at any hearing held pursuant to this section, including hearings to determine the competency of a witness with a developmental or intellectual disability to testify. L. Nothing in this section shall be deemed to prohibit the court from using other appropriate means, consistent with this section and other laws and with the defendant's rights, to protect a witness with a developmental or intellectual disability from trauma during a court proceeding. Laws 1993, ch. 333, § 1; 2023, ch. 113, § 11.

Source: New Mexico Compilation Commission (nmonesource.com)URL: https://nmonesource.com/nmos/nmsa-unanno/en/item/18538/index.doFetched: 10/20/2026