N.M. Stat. » N.M. Stat. / Chapter 31 / Article 8
New Mexico Statutes

N.M. Stat. § 31-8-3 (2026)

Witness from another state summoned to testify in this

✓ current as of May 2026
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   If a person in any state, which by its laws has made provision for commanding
persons within its borders to attend and testify in criminal prosecutions, or grand jury
investigations commenced or about to commence, in this state, is a material witness in
a prosecution pending in a court of record in this state, or in a grand jury investigation
which has commenced or is about to commence, a judge of such court may issue a
certificate under the seal of the court stating these facts and specifying the number of
days the witness will be required. Said certificate may include a recommendation that
the witness be taken into immediate custody and delivered to an officer of this state to
assure his attendance in this state. This certificate shall be presented to a judge of a
court of record in the county in which the witness is found.

    If the witness is summoned to attend and testify in this state he shall be tendered the
sum of five cents [($.05)] a mile for each mile by the ordinary traveled route to and from
the court where the prosecution is pending, and two dollars [($2.00)] for each day that
he is required to travel and attend as a witness. A witness who has appeared in
accordance with the provisions of the summons shall not be required to remain within
this state a longer period of time than the period mentioned in the certificate, unless
otherwise ordered by the court. If such witness, after coming into this state, fails without
good cause to attend and testify as directed in the summons, he shall be punished in
the manner provided for the punishment of any witness who disobeys a summons
issued from a court of record in this state. Expenses as herein provided shall be paid
from the fund from which all other witnesses are usually paid.

History: Laws 1937, ch. 66, § 3; 1941 Comp., § 42-1215; 1953 Comp., § 41-12-15.

                                     ANNOTATIONS

Preliminary hearing testimony may be used after diligent attempt to obtain
witness. — Trial court did not abuse its discretion in admitting preliminary hearing
testimony of absent state witness based on unavailability after prosecutor had exercised
due diligence in obtaining the witness, even though prosecutor did not use a subpoena
pursuant to this article to secure attendance of the witness from out of state until the
witness had already become a fugitive, where the witness had made three previous
voluntary appearances. State v. Martinez, 1984-NMCA-106, 102 N.M. 94, 691 P.2d
887, cert. denied, 102 N.M. 88, 691 P.2d 881.

Party summoning witness must act diligently. — Where no action was taken to
require presence of out-of-state witness until some ten days before trial, no subpoena
was issued for the witness and his presence at some future time appeared extremely
doubtful, defendant had failed to show that diligence which the discretion of the court
would be entitled to require. State v. Fernandez, 1952-NMSC-087, 56 N.M. 689, 248
P.2d 679.

In seeking a continuance to secure the appearance of an absent witness, a party must
show that it has used due diligence to obtain the witness' testimony. State v. Hall, 1987-
NMCA-145, 107 N.M. 17, 751 P.2d 701, cert. denied, 107 N.M. 16, 751 P.2d 700.

Compliance with section deemed due diligence. — If the state wanted to guarantee
the witness' attendance once it had located him in Kentucky but was unable to contact
him directly, it should have used the procedures outlined in this section. These steps
would not have guaranteed the witness' attendance at the trial; however, on the day trial
was to commence, if the state had been able to show that it had used this section, it
could have made a stronger argument to the court to grant a continuance based on its
due diligence and good faith efforts. Because the state could rely only on efforts that
had no legal effect and did not constitute due diligence, resulting in its crucial witness
being absent, the court did not err in denying the state's motion for continuance and in
dismissing the action. State v. Graham, 1993-NMCA-054, 115 N.M. 745, 858 P.2d 412.

Due diligence found. — Where the court admitted the preliminary hearing testimony of
a state witness at defendant’s murder trial on that ground that the witness was
unavailable; the New Mexico prosecution served the witness with a subpoena through
the witness’ Oklahoma parole officer; the witness had twice responded to similar
subpoenas; the New Mexico prosecution purchased an airplane ticket to New Mexico
and mailed the ticket to the witness; the New Mexico prosecution telephoned the
witness twice and the witness confirmed that the witness would appear at defendant’s
trial; unknown to the New Mexico prosecution, the witness’ criminal trial began in
Oklahoma on the day the witness was scheduled to appear at defendant’s trial; and
when the New Mexico prosecution learned that the witness had disappeared during the
witness’ trial in Oklahoma, the New Mexico prosecution obtained a subpoena pursuant
to Section 31-8-3 NMSA 1978 and sent the subpoena to Oklahoma, the New Mexico
prosecution acted with due diligence in seeking to bring the witness to New Mexico and
the trial court’s admission of the witness’ preliminary testimony did not violate
defendant’s sixth amendment rights. Martinez v. Sullivan, 881 F.2d 921 (10th Cir. 1989).

Inability of witness to attend trial. — Where what out-of-state witness would testify to
was pure speculation but witness was offered money for transportation and expenses,
his inability to attend on day of trial did not make denial of defendant's motion for
continuance until such time as witness could be produced erroneous, since required
statement of facts it was believed witness would prove, as is necessary to support
motion for continuance made on first day of trial, was not produced. State v. Fernandez,
1952-NMSC-087, 56 N.M. 689, 248 P.2d 679.

Refusal of appellate court to hold witness unavailable. — The district attorney's
statements that the state attempted to subpoena a material witness and that he was
out-of-state were no more than bare recitals unsupported by factual elaboration. Since
the record contained no evidence as to the circumstances of the state's alleged attempt
and inability to subpoena the witness, the court of appeals refused to hold that the
witness was unavailable for trial, and under Rule 11-804 NMRA his preliminary hearing
testimony was not admissible in evidence. State v. Mann, 1975-NMCA-045, 87 N.M.
427, 535 P.2d 70.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 81 Am. Jur. 2d Witnesses §§ 34, 35, 39,
68 to 74.

Right of witness detained in custody for future appearance to fees for such detention, 50
A.L.R.2d 1439.

Allowance of mileage or witness fees with respect to witnesses who were not called to
testify or not permitted to do so when called, 22 A.L.R.3d 675.

Sufficiency of evidence to support or require finding that out-of-state witness in criminal
case is "material witness" justifying certificate to secure attendance under Uniform Act
to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings,
12 A.L.R.4th 742.

97 C.J.S. Witnesses §§ 2 to 48.
Notes of Decisions
Cited in 13 cases, 1958–1993 · leading case: Houston v. Young, 610 P.2d 195 (N.M. 1980).
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Houston v. Young, 610 P.2d 195 (N.M. 1980). · cites it 18× “Defendants are attorneys at law who represented plaintiff in the probate of her husband’s estate, and plaintiff contends that defendants failed to file a claim against the estate on her behalf, based originally upon Section 29-1-9, but eventually upon Section 31-8-3, N.M.S.A.…”
Matter of Hamilton, 637 P.2d 542 (N.M. 1981). · cites it 6× “In addition, he did not even advise the objectors of the fact that all of the claims that he purportedly had against the estate were barred by Section 31-8-3, N.M. S.A.1953, because they had not been filed in time.”
State v. Hall, 751 P.2d 701 (N.M. Ct. App. 1987). · cites it 4× “Also, defendant has not claimed that he advised the trial court, during trial, either that his subpoenaed witnesses were unable or unwilling to appear or that a continuance would have enabled him to secure their appearance.”
In Re Est. of Tarlton, 500 P.2d 180 (N.M. 1972). · cites it 7× “See § 31-8-3, N.M.S.A., 1953. (Earlier, appellant properly filed — but later withdrew — a timely claim for utility charges allegedly due on the property.”
In Re Will of Skarda, 537 P.2d 1392 (N.M. 1975). · cites it 2× “Points 2, 3 and 4 asserted by appellant relate to the manner in which the executor handled and discharged the debts of the decedent.”
State v. Graham, 858 P.2d 412 (N.M. Ct. App. 1993). · cites it 23× “In making such a determination, the trial court can consider whether the procedures under NMSA 1978, Section 31-8-3 (Repl.Pamp.1984), were used or whether the facts were such that due diligence and good faith were shown without resort to that statutory provision.”
Springer Corp. v. Welch, 457 P.2d 380 (N.M. 1969). · cites it 2× “” Section 31-8-3 supra, states: “All claims against the estates of deceased persons not filed and notice giv- _ en, as provided in the preceding section, within six [6] months from the date of the first publication of notice of the appointment of the executor or administrator,…”
In Re Bogert's Will, 329 P.2d 1023 (N.M. 1958). · cites it 2× “§ 31-8-3 et seq. And, as a second proposition they assert, even if it be assumed the probate court had jurisdiction over the subject matter the claim of the sovereign was timely filed and should have been allowed, since the non-claim statute does not run against the sovereign.”
Bd. of Educ., Sch. Dist. 16 v. Standhardt, 458 P.2d 795 (N.M. 1969). “2d 1023 (1958), we held that the non-claim statute, § 31-8-3, N.M.S.A. 1953, could not be pled against the directors of the State Insane Asylum, citing Directors of the Insane Asylum of New Mexico v.”
Rush v. Strickland, 500 P.2d 180 (N.M. 1972). · cites it 7× “See § 31-8-3, N.M.S.A., 1953. (Earlier, appellant properly filed — but later withdrew — a timely claim for utility charges allegedly due on the property.”
Bd. of Directors of the New Mexico Insane Asylum v. Runkel, 329 P.2d 1023 (N.M. 1958). · cites it 2× “§ 31-8-3 et seq. And, as a second proposition they assert, even if it be assumed the probate court had jurisdiction over the subject matter the claim of the sovereign was timely filed and should have been allowed, since the non-claim statute does not run against the sovereign.”
Garcia v. City of Albuquerque, 500 P.2d 453 (N.M. Ct. App. 1972). “It is concerned with § 31-8-2 and § 31-8-3, N.M.S.A. (1953). The titles are not set forth.”
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