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F I S C A L I M P A C T R E P O R T

SPONSOR HJC

DATE TYPED 3/15/05

HB 347/HJCS

SHORT TITLE Electronic Depositions in Certain Cases

SB

ANALYST Wilson

APPROPRIATION

Appropriation Contained Estimated Additional Impact Recurring

or Non-Rec

Fund

Affected

FY05

FY06

FY05

FY06

$0.1

General Fund

SOURCES OF INFORMATION

LFC Files

SUMMARY

Synopsis of Bill

The House Judiciary Committee substitute for House Bill 347 creates the Crimes Against

Household Members Act.

The bill updates existing state law permitting the recording and use of videotaped depositions for

victims under the age of 16 years in proceedings involving a domestic violence incident or a

prosecution for criminal sexual penetration or criminal sexual contact of a minor,. The updated

language is broader, taking into account advancements in technology by using terms such as

“electronic recording” rather than “videotaped”.

In a prosecution for a crime arising from a domestic violence incident or a prosecution for crimi-

nal sexual penetration or criminal sexual contact of a minor, upon motion of the district attorney

and after notice to the opposing counsel, the district court may, for good cause shown, order the

electronic recording of a deposition of any alleged victim of or witness to a domestic violence

incident who is under sixteen years of age.

Good cause shall include a finding of unreasonable and unnecessary mental harm to the victim or

witness. The deposition shall be taken before the judge in chambers, under oath, in the presence

of the district attorney and the defendant's attorneys. The defendant must be able to hear the tes-

timony and communicate with defense counsel during the deposition. Examination and cross-

examination shall proceed in the same manner as permitted at trial pursuant to the New Mexico

Rules of Evidence.

House Bill 347/HJCS -- Page 2

An electronically recorded deposition taken under the provisions of this bill shall be viewed and

heard at the trial and entered into the record in lieu of the direct testimony of the alleged victim

or witness.

The supreme court may adopt rules of procedure and evidence to govern and implement the pro-

visions of this section.

The cost of the electronic recording shall be paid by the state.

Electronic recordings that are part of the court record are subject to a protective order of the

court for the purpose of protecting the privacy of the victim or witness.

As used in this bill electronic recording means a complete and authentic visual and audio re-

cording created by motion picture, videotape or digital media.

Significant Issues

Electronic depositions allow a broader medium that may be used rather than a video tape for re-

cording purposes. The definition for “electronic recording” includes digital media which is be-

coming a more frequent technology used today for video recording.

In crimes of domestic violence many times child witnesses are reluctant to testify against a par-

ent or an adult, as they are in child abuse cases. Often, children are in the home and are the only

witnesses to the violence reported. In instances where children are traumatized and too fragile to

testify in front of the defendant, the electronic recording method is a good alternative for prose-

cutors to obtain the witness’s testimony.

The PDD states that in current

law, in cases involving criminal sexual penetration of a minor or

criminal sexual contact of a minor, the victim may testify in a videotaped proceeding. Special

protection is afforded to minor victims of these crimes that is not afforded to other victims in

cases where the child may not be able to testify without suffering unreasonable and unnecessary

mental or emotional harm. This protection need not be afforded to other witnesses or adult vic-

tims and may run afoul of the constitutional right to confront witnesses.

CYFD does not believe electronic depositions to create a constitutional issue. Opponents of al-

lowing electronic depositions such as Public Defenders and criminal defense trial lawyers often

attempt to argue that denying a defendant the opportunity to “confront” his accuser or witness,

face-to-face, at the time of obtaining deposition testimony compromises the defendant’s constitu-

tional rights. While such constitutional arguments are still raised, they have largely been set

aside by the courts with the creation of electronic deposition statutes.

FISCAL IMPLICATIONS

The existing law provides the State to pay for depositions. The expanded scope in this bill will

increase the use of electronic depositions and therefore, increase costs.

House Bill 347/HJCS -- Page 3

The PDD believes the bill will substantially increase the cost of these cases as both the state and

the defense have the right to present expert testimony on whether the witnesses would suffer un-

reasonable and unnecessary mental or emotional harm if recorded testimony is not used.

ADMINISTRATIVE IMPLICATIONS

Expanded access to electronic depositions may result in more victims or witnesses being willing

to come forward and to pursue matters further. It may mean more reliable testimony and in-

creased law enforcement and judicial activities. This should translate into fewer repeat and new

victims, a positive for CYFD’s protective services efforts.

DW/lg:yr