New Mexico Administrative Code
Title 7 - HEALTH
Chapter 3 - STATE MEDICAL INVESTIGATOR'S OFFICE
Part 2 - POLICIES OF THE OFFICE OF THE MEDICAL INVESTIGATOR
Section 7.3.2.15 - COURT
Universal Citation: 7 NM Admin Code 7.3.2.15
Current through Register Vol. 35, No. 18, September 24, 2024
A. Citations and Regulations:
(1)
24-11-8
NMSA 1978: The state or district medical investigator shall promptly report his
findings, or the findings of a deputy medical investigator that has performed
an investigation under his direction, to the district attorney in each death
investigated. Upon request of the district attorney, the state or district
medical investigator shall send a complete record of the medical investigation
in any case, including a transcript of the testimony of witnesses examined at
any inquest.
(2) Memorandum #1790:
9/30/82 from department of finance and administration, budget division,
subject: expert witness fee guidelines: Expert witness fees are all expenses
charged by a witness who is called for court testimony as a direct result of
that persons' expertise or specialized skill. An expert witness is not a
character witness or witness-of-fact. In most cases, the prosecution or the
defense will call the expert witnesses; however, a judge may also occasionally
choose to call an expert witness for testimony.
(a) The office of the medical investigator
(OMI) is not to charge the state professional fees for consultation or
testimony by its staff or faculty. However, it may charge mileage and per diem,
or chartered plane costs as necessary. Therefore, the agency using OMI is
responsible for notifying OMI immediately if a plea bargain or cancellation
occurs to avoid unnecessary travel expenses to the state and inconvenience to
OMI.
(b) An OMI faculty forensic
pathologist will participate in all autopsies and will sign the report along
with the resident who assisted in the autopsy. Therefore, either the resident
or the faculty member may be subpoenaed to testify. The OMI would prefer to
have the resident testify if he/she is still available as part of his/her
training in forensic pathology. When preparing the subpoena, please contact OMI
to determine if the resident is still with OMI. If the resident has left OMI,
the supervising faculty member is to be subpoenaed for court testimony. Use of
former OMI staff or faculty should only occur as a last resort.
(c) In general, the agency which calls the
expert witness will be responsible for payment of the fees.
(d) Criminal proceedings:
(i) Criminal proceedings in district court:
Whoever calls an expert witness shall pay the fees of that witness.
(ii) Preliminary hearings and bond
arraignments in magistrate court: Whoever calls an expert witness shall pay the
fees of that witness. Since the purpose of a preliminary hearing is to
determine probable cause, and not determine guilt or innocence, the need for
expert witnesses in magistrate court should be minimal.
(iii) Criminal grand jury proceedings:
Whoever calls an expert witness shall pay the fees of that witness. The
administrative office of the courts shall pay for any expert who is called
specifically by the grand jury and who conducts an examination testimony at the
direct request of the judge. Since the purpose of a grand jury is to determine
probable cause, and not to determine guilt or innocence, the need for an expert
witness in a Grand Jury proceeding should be minimal.
B. Policy:
(1) All representatives of the office of the
medical investigator may be subpoenaed to a variety of legal hearings to
provide information in a particular case.
(2) Subpoenas may be issued by prosecution or
defense; at times, the representative of the OMI can be subpoenaed by both for
the same case.
(3) The testimony of
the representative of the OMI is based on the factual observations of that
individual. As such, the testimony is neutral testimony. The supporting or
refuting of an allegation is the responsibility of the counsels in the case,
based on the hearing of the neutral testimony.
(4) Failure to respond to a subpoena
represents contempt of court, and a bench warrant may be issued for the
subpoenaed person at the discretion of the judge.
(5) ALL representatives of the OMI upon
receiving subpoenaes must notify the central office. The only official file on
any OMI case is at the central office. Any notes made by the DMI at the scene
of a death are considered original source materials and may be used during
court testimony.
(6) Any
representative receiving a subpoena duces tecum is to bring designated records
or documents with him to the court appearance. Only records at the central
office will be used in this matter, and they are to be reproduced and certified
by central office personnel prior to the court appearance.
(7) See also - Records, Section G [now
7.3.2.14 NMAC]
Disclaimer: These regulations may not be the most recent version. New Mexico may have more current or accurate information. We make no warranties or guarantees about the accuracy, completeness, or adequacy of the information contained on this site or the information linked to on the state site. Please check official sources.
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