HOUSE JUDICIARY COMMITTEE SUBSTITUTE FOR

HOUSE BILL 173

56th legislature - STATE OF NEW MEXICO - first session, 2023

 

 

 

 

 

 

 

AN ACT

RELATING TO TRIAL PROCEDURE; ALLOWING A VICTIM THE RIGHT TO DENY A PRETRIAL STATEMENT OR PRETRIAL INTERVIEW; PROVIDING FOR THE ADMISSIBILITY OF A CHILD'S FORENSIC INTERVIEW IN CERTAIN CIRCUMSTANCES; AMENDING, REPEALING AND ENACTING SECTIONS OF THE NMSA 1978.

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

     SECTION 1. Section 38-6A-1 NMSA 1978 (being Laws 2011, Chapter 98, Section 1) is amended to read:

     "38-6A-1. SHORT TITLE.--[This act] Chapter 38, Article 6A NMSA 1978 may be cited as the "[Uniform] Child Witness Protective Measures Act"."

     SECTION 2. Section 38-6A-2 NMSA 1978 (being Laws 2011, Chapter 98, Section 2) is amended to read:

     "38-6A-2. DEFINITIONS.--As used in the [Uniform] Child Witness Protective Measures Act:

          A. "alternative method" means:

                (1) in a criminal proceeding in which a child witness does not give testimony in an open forum in full view of the finder of fact, a videotaped deposition of the child witness that complies with the following requirements:

                     (a) the deposition was presided over by a district judge;

                     (b) the defendant was represented by counsel at the deposition or waived counsel;

                     (c) the defendant was present at the deposition; and

                     (d) the defendant was given an adequate opportunity to cross-examine the child witness, subject to such protection of the child witness as the judge deemed necessary;

                (2) in a criminal proceeding in which a child witness does not give testimony face-to-face with the defendant, a videotaped deposition of the child witness that complies with the following requirements:

                     (a) the deposition was presided over by a district judge;

                     (b) the defendant was represented by counsel at the deposition or waived counsel;

                     (c) the defendant was able to view the deposition, including the child witness, through closed-circuit television or equivalent technology, and the defendant and counsel were able to communicate with each other during the deposition through headsets and microphones or equivalent technology; and

                     (d) the defendant was given an adequate opportunity to cross-examine the child witness, subject to such protection of the child witness as the judge deemed necessary; or

                (3) in a noncriminal proceeding, testimony by closed-circuit television, deposition, testimony in a closed forum or any other method of testimony that does not include one or more of the following:

                     (a) having the child witness testify in person in an open forum;

                     (b) having the child witness testify in the presence and full view of the finder of fact and presiding officer; and

                     (c) allowing all of the parties to be present, to participate and to view and be viewed by the child witness;

          B. "child witness" means:

                (1) an individual under the age of sixteen who has been or will be called to testify in a noncriminal proceeding; or

                (2) an alleged victim under the age of sixteen who has been or will be called to testify in a criminal proceeding;

          C. "criminal proceeding" means a trial or hearing before a court in a prosecution of a person charged with violating a criminal law of New Mexico or a delinquency proceeding pursuant to the Delinquency Act involving conduct that if engaged in by an adult would constitute a violation of a criminal law of New Mexico;

          D. "forensic interview" means a recorded interview conducted through a children's advocacy center pursuant to the Children's Advocacy Centers Act;

          [D.] E. "noncriminal proceeding" means a trial or hearing before a court or an administrative agency of New Mexico having judicial or quasi-judicial powers in a civil case, an administrative proceeding or any other case or proceeding other than a criminal proceeding; and

          [E.] F. "presiding officer" means the person under whose supervision and jurisdiction the proceeding is being conducted. "Presiding officer" includes a judge in whose court a case is being heard, a quasi-judicial officer or an administrative law judge or hearing officer."

     SECTION 3. A new section of the Child Witness Protective Measures Act is enacted to read:

     "[NEW MATERIAL] RIGHT TO REFUSE INTERVIEW.--A victim who is a child witness who has previously given a recorded statement as part of a forensic interview or in-court testimony regarding a criminal or noncriminal offense shall not be compelled to give a pretrial statement or pretrial interview; provided that a court may order an additional forensic interview, to be conducted in accordance with the standard procedures of the children's advocacy center, based on a finding that an existing forensic interview was not trustworthy or was not reasonably complete under the circumstances or that an additional interview is warranted by new information."

     SECTION 4. A new section of the Child Witness Protective Measures Act is enacted to read:

     "[NEW MATERIAL] ADMISSIBILITY OF A CHILD WITNESS'S PREVIOUS STATEMENTS.--

          A. When a child witness testifies at a court proceeding as a victim in a criminal or noncriminal proceeding and is subject to cross-examination, a forensic interview by the child witness may be admitted as evidence if the court finds that the forensic interview bears adequate circumstantial guarantees of trustworthiness. In determining the trustworthiness of the forensic interview, the court shall consider the timing of the forensic interview, the content of the forensic interview, the thoroughness of the forensic interview and the context in which the forensic interview was conducted.

          B. A previous statement of material fact by a child witness may be admitted as evidence at trial or a preliminary hearing if the court finds that the statement is nontestimonial and the statement bears adequate circumstantial guarantees of trustworthiness.

          C. Absent a showing of good cause, a proponent seeking admission of a previous statement or forensic interview of a child witness shall provide notice of intent to introduce such statement or forensic interview at least five days before a preliminary hearing or at least twenty days before trial.

          D. This section shall not be construed to limit the admissibility of evidence that is otherwise admissible."

     SECTION 5. Section 38-6A-3 NMSA 1978 (being Laws 2011, Chapter 98, Section 3) is amended to read:

     "38-6A-3. APPLICABILITY.--

          A. The [Uniform] Child Witness Protective Measures Act applies to the testimony, pretrial statement or pretrial interview of a child witness in a criminal or noncriminal proceeding. However, the [Uniform] Child Witness Protective Measures Act does not preclude, in a criminal or noncriminal proceeding, any other procedure permitted by law:

                (1) for a child witness to testify by an alternative method, however denominated; or

                (2) for protecting the interests of or reducing mental or emotional harm to a child witness.

          B. The supreme court may adopt rules of procedure and evidence to implement the provisions of the [Uniform] Child Witness Protective Measures Act."

     SECTION 6. Section 38-6A-6 NMSA 1978 (being Laws 2011, Chapter 98, Section 6) is amended to read:

     "38-6A-6. FACTORS FOR DETERMINING WHETHER TO PERMIT ALTERNATIVE METHOD.--If the presiding officer determines that a standard pursuant to Section [5 of the Uniform Child Witness Protective Measures Act] 38-6A-5 NMSA 1978 has been met, the presiding officer [shall determine whether to] may allow a child witness to testify by an alternative method [and in doing so shall consider:

          A. alternative methods reasonably available for protecting the interests of or reducing mental or emotional harm to the child;

          B. available means for protecting the interests of or reducing mental or emotional harm to the child without resort to an alternative method;

          C. the nature of the case;

          D. the relative rights of the parties;

          E. the importance of the proposed testimony of the child;

          F. the nature and degree of mental or emotional harm that the child may suffer if an alternative method is not used; and

          G. any other relevant factor]."

     SECTION 7. REPEAL.--Section 38-6A-9 NMSA 1978 (being Laws 2011, Chapter 98, Section 9) is repealed.

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