confrontation clause in New Mexico

2022Under the Confrontation Clause standard announced in Crawford, “‘witnesses’ . . . are those ‘who bear testimony,’ and [Crawford] defined ‘testimony’ as ‘a solemn declaration or affirmation made for the purpose of establishing or proving some fact.’” Clark, 576 U.S. at 243 (quoting Crawford, 541 U.S. at 51 ).

2022Under the Confrontation Clause standard announced in Crawford, “‘witnesses’ . . . are those ‘who bear testimony,’ and [Crawford] defined ‘testimony’ as ‘a solemn declaration or affirmation made for the purpose of establishing or proving some fact.’” Clark, 576 U.S. at 243 (quoting Crawford, 541 U.S. at 51 ).

2019See id. {4} Even if Defendant had preserved a Confrontation Clause claim, it would fail.

2019See id. {4} Even if Defendant had preserved a Confrontation Clause claim, it would fail.

2014Thus, his argument is grounded in the United States Supreme Court’s holding in Bullcoming v. New Mexico, 131 S. Ct. 2705, 2713 (2011), in which the Court held that “[a]s a rule, if an out-of-court statement is testimonial in nature, it may not be introduced against the accused at trial unless the witness who made the statement is unavailable and the accused has had a prior opportunity to confront that witness.” {27} As a preliminary matter, we address the State’s argument that Bullcoming does not apply here because it was “issued long after Defendant’s judgment of conviction became final.” We

2014Cf. State v. Sisneros, 2013-NMSC-049, ¶ 31 , 7 314 P.3d 665 (holding that a confrontation violation occurred where a substitute 8 pathologist used a diagram prepared by the autopsy pathologist to demonstrate bullet 9 trajectory instead of relying on raw data to express her independent opinion); 10 Bullcoming, ___ U.S. at ___, 131 S. Ct. at 2708 (holding that the admission of 11 laboratory report of a non-testifying analyst containing the defendant’s blood alcohol 12 content violated the defendant’s confrontation right, and rejecting the “surrogate 13 testimony” of an analysis who did not parti

2023See Rule 12-321(B)(2)(c), (d) NMRA (providing that appellate courts have discretion to review unpreserved questions involving fundamental error or fundamental rights); cf. State v. Martinez, 2007-NMSC-025, ¶ 25 , 141 N.M. 713 , 160 P.3d 894 (reviewing a defendant’s Confrontation Clause claim for fundamental error even though the issue was not preserved). {4} Even if we were to assume, without deciding, that the district court erred by admitting the hearsay testimony, we do not conclude that the error was fundamental.

2023See Rule 12-321(B)(2)(c), (d) NMRA (providing that appellate courts have discretion to review unpreserved questions involving fundamental error or fundamental rights); cf. State v. Martinez, 2007-NMSC-025, ¶ 25 , 141 N.M. 713 , 160 P.3d 894 (reviewing a defendant’s Confrontation Clause claim for fundamental error even though the issue was not preserved). {4} Even if we were to assume, without deciding, that the district court erred by admitting the hearsay testimony, we do not conclude that the error was fundamental.

2026See 2013-NMSC-003, ¶¶ 13-14 , 5 294 P.3d 435 (deriving from the fractured Williams opinion the principle “that an 6 out-of-court statement that is disclosed to the fact-finder as the basis for an expert’s 7 opinion is offered for the truth of the matter asserted”). 8 {42} The Sixth Amendment’s Confrontation Clause provides that “[i]n all criminal 9 prosecutions, the accused shall enjoy the right . . . to be confronted with the 11 Indeed, our Court of Appeals has taken disparate approaches to the effects of Smith, applying it without concern in some instances, see State v. Romanis- Beltran, 202

2025See Navarette, 2013-NMSC-003, ¶ 7 (deciding that the defendant’s Confrontation Clause claim rested on whether the testimony of the forensic pathologist who did not perform the autopsy relayed any testimonial statements by the pathologist who performed the autopsy). {4} Defendant also contends that Navarette is no longer good law following the United States Supreme Court’s opinion in Smith. [MIO 4-5] In Navarette, our Supreme Court held that the Confrontation Clause was not violated where a forensic pathologist who does not perform the autopsy offers an expert opinion, as long as the testifying

2013Once a 7 reviewing court has concluded that there has been a Confrontation Clause violation, 8 the constitutional standard of review, harmless beyond a reasonable doubt, applies. 9 State v. Tollardo, 2012-NMSC-008, ¶ 34 , 275 P.3d 110 ; Lopez, 2000-NMSC-003 , ¶ 10 20.

2013Once a 7 reviewing court has concluded that there has been a Confrontation Clause violation, 8 the constitutional standard of review, harmless beyond a reasonable doubt, applies. 9 State v. Tollardo, 2012-NMSC-008, ¶ 34 , 275 P.3d 110 ; Lopez, 2000-NMSC-003 , ¶ 10 20.

2014Cf. State v. Sisneros, 2013-NMSC-049, ¶ 31 , 7 314 P.3d 665 (holding that a confrontation violation occurred where a substitute 8 pathologist used a diagram prepared by the autopsy pathologist to demonstrate bullet 9 trajectory instead of relying on raw data to express her independent opinion); 10 Bullcoming, ___ U.S. at ___, 131 S. Ct. at 2708 (holding that the admission of 11 laboratory report of a non-testifying analyst containing the defendant’s blood alcohol 12 content violated the defendant’s confrontation right, and rejecting the “surrogate 13 testimony” of an analysis who did not parti

2013See David Mills, Ph.D, Spread Thin: SLD Struggles With Shifts in DWI Environment, Scientific Laboratory Division News, Vol. 7, Issue 1, at 2-3 (Fall/Winter2010) (detailing the increased burdens of statewide travel for analysts after the Confrontation Clause-based decision in Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2532 (2009), noting that “SLD has [four] individuals who have been trained and are qualified to serve as expert witnesses in alcohol-related DWI cases and [six] who are qualified as experts in drug-related D WI/DUID cases”); see also Bullcoming, 131 S. Ct. at 2713 (noting th

2020We have recognized that a violation of the Confrontation Clause occurs where “defense counsel should have been permitted to expose to the jury the facts from which jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness.” Id. ¶ 49 (quoting Davis v. Alaska, 415 U.S. 308, 318 (1974)); see also Sanders, 1994-NMSC-043 , ¶ 26 (“[The] test for Confrontation Clause violation[s] is whether [a] reasonable jury might have received [a] significantly different impression of the witness’s credibility had counsel pursued [the] propos

2004If, at the end of that examination, we conclude there is a reasonable possibility the evidence complained of might have contributed to the conviction, we must reverse. {11} In the specific context of a Confrontation Clause violation, as we are faced with in this case, the Supreme Court in Delaware v. Van Arsdall, 475 U.S. 673, 684 , 106 S.Ct. 1431 , 89 L.Ed.2d 674 (1986), stated that the reviewing court must examine various factors in conducting its harmless-error inquiry: These factors include the importance of the witness' testimony in the prosecution's *1004 case, whether the testimony was

2012See State v. Romero, 2006-NMCA-045, ¶ 46 , 139 N.M. 386 , 133 P.3d 842 (stating that the confrontation clause applies only to testimonial statements including “(1) ex parte in-court testimony or its functional equivalent. . .; (2) extrajudicial statements . . . contained in formalized testimonial materials . . .; and (3) statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial” (internal quotation marks and citation omitted)). {13} Defendant further argues that the district court’s f

2012See State v. Romero, 2006-NMCA-045, ¶ 46 , 139 N.M. 386 , 133 P.3d 842 (stating that the confrontation clause applies only to testimonial statements including “(1) ex parte in-court testimony or its functional equivalent. . .; (2) extrajudicial statements . . . contained in formalized testimonial materials . . .; and (3) statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial” (internal quotation marks and citation omitted)). {13} Defendant further argues that the district court’s f

2021State v. Silva, 2008- NMSC-051, ¶ 10, 144 N.M. 815 , 192 P.3d 1192 (holding that the claimed Confrontation Clause error in the denial of a request for cross-examination about a specific issue is reviewed for fundamental error when a defendant does not alert the district court to a constitutional basis for the request), unrelated holding clarified by State v. Guerra, 2012- NMSC-027, ¶ 15, 284 P.3d 1076 .

2021State v. Silva, 2008- NMSC-051, ¶ 10, 144 N.M. 815 , 192 P.3d 1192 (holding that the claimed Confrontation Clause error in the denial of a request for cross-examination about a specific issue is reviewed for fundamental error when a defendant does not alert the district court to a constitutional basis for the request), unrelated holding clarified by State v. Guerra, 2012- NMSC-027, ¶ 15, 284 P.3d 1076 .

2026The Confrontation Clause challenge 6 {40} Defendant argues that his confrontation right under the Sixth Amendment to 7 the United States Constitution was violated because he was unable to confront the 8 medical examiner, Dr. Edelman, who prepared Victim’s autopsy report. 9 {41} In adjudicating these challenges, we for the first time recognize Smith v. 10 Arizona, 602 U.S. 779 (2024), United States Supreme Court precedent addressing 11 the application of the Confrontation Clause to expert testimony.

2026The Confrontation Clause challenge 6 {40} Defendant argues that his confrontation right under the Sixth Amendment to 7 the United States Constitution was violated because he was unable to confront the 8 medical examiner, Dr. Edelman, who prepared Victim’s autopsy report. 9 {41} In adjudicating these challenges, we for the first time recognize Smith v. 10 Arizona, 602 U.S. 779 (2024), United States Supreme Court precedent addressing 11 the application of the Confrontation Clause to expert testimony.

2014We disagree that the letter alone is sufficient to demonstrate a compelling need to protect the witness as required to outweigh Defendant’s rights under the confrontation clause. {13} “[A]ny exceptions to the general rule providing for face-to-face confrontation [must be] narrowly tailored.” Chung, 2012-NMCA-049, ¶ 11 (internal quotation marks and citation omitted); see Smith, 2013-NMCA-081, ¶ 9 (stating that “[c]ourts define [policy concerns that outweigh the defendant’s confrontation rights] narrowly”).

2014We disagree that the letter alone is sufficient to demonstrate a compelling need to protect the witness as required to outweigh Defendant’s rights under the confrontation clause. {13} “[A]ny exceptions to the general rule providing for face-to-face confrontation [must be] narrowly tailored.” Chung, 2012-NMCA-049, ¶ 11 (internal quotation marks and citation omitted); see Smith, 2013-NMCA-081, ¶ 9 (stating that “[c]ourts define [policy concerns that outweigh the defendant’s confrontation rights] narrowly”).

2013See Rivera, 2008-NMSC-056, ¶ 22 (concluding that the Confrontation Clause does not bar the use of hearsay to demonstrate probable cause and that “the Hensel opinion does not reflect current confrontation clause jurisprudence and is of no current value to our courts”). {23} Before reconsidering our own precedent and overcoming the legal stability principles of stare decisis, we must consider “such common-sense factors as whether the precedent is a remnant of abandoned doctrine, whether the precedent has proved to be unworkable, whether changing circumstances have deprived the precedent of its o

2013See Rivera, 2008-NMSC-056, ¶ 22 (concluding that the Confrontation Clause does not bar the use of hearsay to demonstrate probable cause and that “the Hensel opinion does not reflect current confrontation clause jurisprudence and is of no current value to our courts”). {22} Before reconsidering our own precedent and overcoming the legal stability principles of stare decisis, we must consider “such common-sense factors as whether the precedent is a remnant of abandoned doctrine, whether the precedent has proved to be unworkable, whether changing circumstances have deprived the precedent of its o

2013See Rivera, 2008-NMSC-056, ¶ 22 (concluding that the Confrontation Clause does not bar the use of hearsay to demonstrate probable cause and that “the Hensel opinion does not reflect current confrontation clause jurisprudence and is of no current value to our courts”). {23} Before reconsidering our own precedent and overcoming the legal stability principles of stare decisis, we must consider “such common-sense factors as whether the precedent is a remnant of abandoned doctrine, whether the precedent has proved to be unworkable, whether changing circumstances have deprived the precedent of its o

2013See Rivera, 2008-NMSC-056, ¶ 22 (concluding that the Confrontation Clause does not bar the use of hearsay to demonstrate probable cause and that “the Hensel opinion does not reflect current confrontation clause jurisprudence and is of no current value to our courts”). {22} Before reconsidering our own precedent and overcoming the legal stability principles of stare decisis, we must consider “such common-sense factors as whether the precedent is a remnant of abandoned doctrine, whether the precedent has proved to be unworkable, whether changing circumstances have deprived the precedent of its o

2012See, e.g., Stephen F., 2008-NMSC-037, ¶ 31 (finding a confrontation violation when the district court prevented cross-examination necessary to show a witness’s motivation to lie); State v. Martinez, 1996-NMCA-109 , ¶ 17, 122 N.M. 476 , 927 P.2d 31 (finding a confrontation violation when a defendant was restricted from cross-examining a witness regarding bias towards the state); accord Sanders, 117 N.M. at460, 872 P.2d at 878 (holding thatthere was no confrontation violation when the excluded evidence did not reflect the witness’s bias, motivation to lie, or credibility).

2012See, e.g., Stephen F., 2008-NMSC-037, ¶ 31 (finding a confrontation violation when the district court prevented cross-examination necessary to show a witness’s motivation to lie); State v. Martinez, 1996-NMCA-109 , ¶ 17, 122 N.M. 476 , 927 P.2d 31 (finding a confrontation violation when a defendant was restricted from cross-examining a witness regarding bias towards the state); accord Sanders, 117 N.M. at 460 , 872 P.2d at 878 (holding that there was no confrontation violation when the excluded evidence did not reflect the witness’s bias, motivation to lie, or credibility).

2019See Henderson, 2006-NMCA-059, ¶ 13 (acknowledging abandonment of the United States Supreme Court’s reliability test in Ohio v. Roberts, 448 U.S. 56 , (1980), in favor of the confrontation test articulated in Crawford, 541 U.S. 36 ); Henderson, 2006-NMCA-059,¶ 16 (setting out the standard for admission of a testimonial statement in a preliminary hearing).

2019See Henderson, 2006-NMCA-059, ¶ 13 (acknowledging abandonment of the United States Supreme Court’s reliability test in Ohio v. Roberts, 448 U.S. 56 , (1980), in favor of the confrontation test articulated in Crawford, 541 U.S. 36 ); Henderson, 2006-NMCA-059,¶ 16 (setting out the standard for admission of a testimonial statement in a preliminary hearing).

2019See Henderson, 2006-NMCA-059, ¶ 13 (acknowledging abandonment of the United States Supreme Court’s reliability test in Ohio v. Roberts, 448 U.S. 56 , (1980), in favor of the confrontation test articulated in Crawford, 541 U.S. 36 ); Henderson, 2006-NMCA-059,¶ 16 (setting out the standard for admission of a testimonial statement in a preliminary hearing).

1995In Ohio v. Roberts, 448 U.S. 56, 65-66 , 100 S.Ct. 2531, 2538-39 , 65 L.Ed.2d 597 (1980), the United States Supreme Court established a two-part Confrontation Clause test for hearsay evidence.

2013“The [Confrontation] Clause 7 also does not bar the use of testimonial statements for purposes other than establishing 8 the truth of the matter asserted.” Id. (internal quotation marks and citation omitted). 9 Defendant does not challenge this ruling by the district court, nor does Defendant 10 argue that admission of the statement was improper under any other rule of evidence. 11 See id. (“Once it has been established that the Confrontation Clause does not bar 12 admission of the statement, the rules of evidence govern whether the statement is 13 admissible.”).

2013“The [Confrontation] Clause 7 also does not bar the use of testimonial statements for purposes other than establishing 8 the truth of the matter asserted.” Id. (internal quotation marks and citation omitted). 9 Defendant does not challenge this ruling by the district court, nor does Defendant 10 argue that admission of the statement was improper under any other rule of evidence. 11 See id. (“Once it has been established that the Confrontation Clause does not bar 12 admission of the statement, the rules of evidence govern whether the statement is 13 admissible.”).

2013Chung, 2012-NMCA-049, ¶ 11 (disallowing video testimony for convenience as a Confrontation Clause violation); State v. Almanza, 2007-NMCA-073, ¶ 12 , 141 N.M. 751 , 160 P.3d 932 (stating that the use of telephonic testimony violates the Confrontation Clause when used for mere convenience).

2013Chung, 2012-NMCA-049, ¶ 11 (disallowing video testimony for convenience as a Confrontation Clause violation); State v. Almanza, 2007-NMCA-073, ¶ 12 , 141 N.M. 751 , 160 P.3d 932 (stating that the use of telephonic testimony violates the Confrontation Clause when used for mere convenience).

2013Additionally, the Court articulated a guiding principle to be used in identifying testimonial statements — that is, to what extent does the alleged confrontation violation resemble “the abuses at which the Confrontation Clause was directed.” Id. at 52, 68 (explaining that “}w]hatever else the term [“testimonial”] covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations [because t]hese are the modern practices with [the] closest kinship to the abuses at which the Confrontation Clause was directed”); see

2013The plurality explained that the testifying analyst did not “testify to anything that was done at [the outside laboratory;]” rather, in answering the prosecution’s question, she “simply assumed [the] premise [of the prosecutor’s question] to be true[.]” Id. at 2235-36 . {23} The plurality in Williams held that the outside laboratory’s DNA report was not admitted for the truth of the matter asserted therein; but, the plurality explained, even if it had been admitted for its truth, they “would nevertheless conclude that there was no Confrontation Clause violation.” Id. at 2239-40,2242 .

2013Once a 7 reviewing court has concluded that there has been a Confrontation Clause violation, 8 the constitutional standard of review, harmless beyond a reasonable doubt, applies. 9 State v. Tollardo, 2012-NMSC-008, ¶ 34 , 275 P.3d 110 ; Lopez, 2000-NMSC-003 , ¶ 10 20.

2013Once a 7 reviewing court has concluded that there has been a Confrontation Clause violation, 8 the constitutional standard of review, harmless beyond a reasonable doubt, applies. 9 State v. Tollardo, 2012-NMSC-008, ¶ 34 , 275 P.3d 110 ; Lopez, 2000-NMSC-003 , ¶ 10 20.

2003See State v. Lopez, 2000-NMSC-003, ¶ 18 , 128 N.M. 410 , 993 P.2d 727 (stating in a Confrontation Clause analysis that a custodial statement is not per se unreliable and that the Court is to look at whether circumstances indicating unreliability are present); Torres, 1998-NMSC-052, ¶ 18 , 126 N.M. 477 , 971 P.2d 1267 (relying on Miranda warnings and that police did not in any way offer leniency in exchange for declarant’s statement in concluding that it was not given to curry favor with police); State v. Sanchez, 112 N.M. 59, 64 , 811 P.2d 92, 97 (Ct.App.1991) (same). {17} We hold that the dis

2003See State v. Lopez, 2000-NMSC-003, ¶ 18 , 128 N.M. 410 , 993 P.2d 727 (stating in a Confrontation Clause analysis that a custodial statement is not per se unreliable and that the Court is to look at whether circumstances indicating unreliability are present); Torres, 1998-NMSC-052, ¶ 18 , 126 N.M. 477 , 971 P.2d 1267 (relying on Miranda warnings and that police did not in any way offer leniency in exchange for declarant’s statement in concluding that it was not given to curry favor with police); State v. Sanchez, 112 N.M. 59, 64 , 811 P.2d 92, 97 (Ct.App.1991) (same). {17} We hold that the dis

2018Defendant did not seek 15 to have the jury instructed that Nurse Belinski and Ms. Wood’s testimony 16 concerning HG’s statements to them should not be considered for the truth of the 17 matter asserted. 18 {9} A “defendant can waive fundamental rights,” including confrontation clause 19 rights, which “may include an implied waiver by conduct.” State v. Herrera, 2004- 20 NMCA-015, ¶ 8, 135 N.M. 79 , 84 P.3d 696 ; see State v. Lucero, 1986-NMCA- 21 085, ¶¶ 12-17, 104 N.M. 587 , 725 P.2d 266 (determining that by failing to object 22 to challenged testimony on the basis of the confrontation clause

2018Defendant did not seek 15 to have the jury instructed that Nurse Belinski and Ms. Wood’s testimony 16 concerning HG’s statements to them should not be considered for the truth of the 17 matter asserted. 18 {9} A “defendant can waive fundamental rights,” including confrontation clause 19 rights, which “may include an implied waiver by conduct.” State v. Herrera, 2004- 20 NMCA-015, ¶ 8, 135 N.M. 79 , 84 P.3d 696 ; see State v. Lucero, 1986-NMCA- 21 085, ¶¶ 12-17, 104 N.M. 587 , 725 P.2d 266 (determining that by failing to object 22 to challenged testimony on the basis of the confrontation clause

2023Because we conclude there has been no Confrontation Clause violation, we need not address the preservation issue. 6 1 confronted with the witnesses against him.” Davis v. Alaska, 415 U.S. 308 , 315 2 (1974) (internal quotation marks and citation omitted). “[A] primary interest secured 3 by [the Sixth Amendment] is the right of cross-examination.” Id. (internal quotation 4 marks and citation omitted).

2023Because we conclude there has been no Confrontation Clause violation, we need not address the preservation issue. 6 1 confronted with the witnesses against him.” Davis v. Alaska, 415 U.S. 308 , 315 2 (1974) (internal quotation marks and citation omitted). “[A] primary interest secured 3 by [the Sixth Amendment] is the right of cross-examination.” Id. (internal quotation 4 marks and citation omitted).

2014See Tollardo, 2012-NMSC-008, ¶ 45 (“When a statement is admitted in violation of the Confrontation Clause, we next inquire into whether the error was harmless, and [t]o preclude reversal, the error must be harmless beyond a reasonable doubt.” (alteration in original) (internal quotation marks and citation omitted)). {20} Harmless errors are “constitutional errors which in the setting of a particular case are so unimportant and insignificant that they may . . . be deemed harmless, not requiring the automatic reversal of the conviction.” Johnson, 2004-NMSC-029, ¶ 8 (internal quotation marks and

2014See Tollardo, 2012-NMSC-008, ¶ 45 (“When a statement is admitted in violation of the Confrontation Clause, we next inquire into whether the error was harmless, and [t]o preclude reversal, the error must be harmless beyond a reasonable doubt.” (alteration in original) (internal quotation marks and citation omitted)). {20} Harmless errors are “constitutional errors which in the setting of a particular case are so unimportant and insignificant that they may ... be deemed harmless, not requiring the automatic reversal of the conviction.” Johnson, 2004-NMSC-029, ¶ 8 (internal quotation marks and ci

2014We will refer to the clause in both constitutions as “the confrontation clause.” {6} “[T]he [cjonffontation [cjlause guarantees the defendant a face-to-face meeting with witnesses appearing before the trier of fact.” Coy v. Iowa, 487 U.S. 1012, 1016 (1988).

2014We will refer to the clause in both constitutions as “the confrontation clause.” {6} “[T]he [c]onfrontation [c]lause guarantees the defendant a face-to-face meeting with witnesses appearing before the trier of fact.” Coy v. Iowa, 487 U.S. 1012, 1016 (1988).