Rule 1-043.Evidence

Last verified June 26, 2026

In one sentenceRule 1-043 requires testimony to be taken orally in open court, allows prior testimony to be used when a witness is unavailable, and permits motions to be heard on affidavits.

Full Text of Rule 1-043

Text sizeJump to: (A) (B) (C)

A. Taking of testimony. In all trials the testimony of witnesses shall be taken orally in open court unless otherwise provided by these or other rules.

B. When testimony at another trial can be used. The testimony of any witness taken in any court, state or federal, in this state may be used in any subsequent trial or hearing of the same issued between the same parties in the following cases:

(1) when the witness is dead or insane;

(2) when the witness is a nonresident of this state;

(3) when after diligent effort the whereabouts of witnesses cannot be ascertained. This rule is not intended to be exclusive and nothing herein contained shall be construed to require the courts to exclude evidence admissible under the New Mexico Rules of Evidence.

C. Evidence on motions. When a motion is based on facts not appearing of record the court may hear the matter on affidavits presented by the respective parties, but the court may direct that the matter be heard wholly or partly on oral testimony or depositions.

End

Plain-English Summary

This rule sets basic ground rules for evidence at trial. Testimony is taken orally in open court unless the rules provide otherwise. Testimony a witness gave in an earlier state or federal proceeding may be used in a later trial or hearing on the same issue between the same parties when the witness is dead or insane, is a nonresident, or cannot be located after diligent effort—and the rule is not exclusive of evidence admissible under the Rules of Evidence.

When a motion turns on facts not in the record, the court may hear it on affidavits, but it may also direct that the matter be heard wholly or partly on oral testimony or depositions.

Frequently Asked Questions

How is testimony taken at trial?

Orally in open court, unless these or other rules provide otherwise.

Can a motion be decided on affidavits?

Yes. When a motion is based on facts not in the record, the court may hear it on affidavits, or may direct that it be heard wholly or partly on oral testimony or depositions.

Source & verification. Rule text and Committee commentary reproduced verbatim from the New Mexico Rules of Civil Procedure for the District Courts (Rule 1-043 NMRA), published by the New Mexico Compilation Commission (NMOneSource). Promulgated by the Supreme Court of New Mexico. The plain-English summary is original and draws on the official annotations. Last verified June 26, 2026. · Official source

Also known as: taking of testimonytestimony in open courtevidence on motionsformer testimony