HOUSE BILL 143

55th legislature - STATE OF NEW MEXICO - first session, 2021

INTRODUCED BY

Meredith Dixon and Gay G. Kernan

and Linda M. Lopez and Leo Jaramillo

AN ACT

RELATING TO CRIMINAL PROCEDURE; ALLOWING A VICTIM THE RIGHT TO DENY AN INTERVIEW PURSUANT TO THE VICTIMS OF CRIME ACT; ALLOWING THE ADMISSION OF RECORDED STATEMENTS IN CERTAIN CIRCUMSTANCES.

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

     SECTION 1. A new section of the Victims of Crime Act is enacted to read:

     "[NEW MATERIAL] FINDINGS.--The legislature finds that:

          A. victims of violent crime often experience secondary trauma as a result of participating in the criminal justice system, which may cause psychological harm to victims that interferes with the ability to fully participate in the criminal justice system and may also increase anxiety, depression and posttraumatic stress disorder long after the criminal justice system has disposed of a case;

          B. the effects of trauma on victims have economic consequences for the state, and there is a need to mitigate the effects of retraumatization;

          C. providing more rigorous guidelines for pretrial interviews and trial testimony better preserves victims' health, privacy and dignity; and

          D. the public has a compelling interest in protecting the health, privacy and dignity of victims throughout the criminal justice process and in the development of a framework to provide complete, truthful and accurate information to the trier of fact while also balancing the due process rights of criminal defendants."

     SECTION 2. A new section of the Victims of Crime Act is enacted to read:

     "[NEW MATERIAL] RIGHT TO REFUSE INTERVIEW.--

          A. A victim that is a child or an adjudicated incapacitated adult who has previously given a statement regarding a criminal offense before the filing of an indictment or plea for the offense shall not be compelled to give an additional statement or interview that is conducted or initiated by the defendant.

          B. An adult victim shall have the right to refuse a pretrial interview conducted or initiated by the defendant. If an adult victim declines to be interviewed or places limits on the scope of questioning during an interview pursuant to Subsection D of this section, the defendant may petition the court for approval of written interrogatories that shall be asked of the victim by a law enforcement officer in a recorded interview in a neutral setting at which the defendant or either party's attorney shall not be present. The court shall deny interrogatories that are not material to the defense's preparation or that duplicate questions previously answered by the adult victim in a statement that has been made available to the defendant. The court may also modify interrogatories in a manner that protects the victim's health, safety and privacy, so long as the modification does not substantially diminish the defendant's access to material information that is not contained in a previous interview.

          C. The defendant shall not initiate contact with the victim, except through the prosecutor's office. The prosecutor's office shall promptly inform the victim of the defendant's request for an interview and shall advise the victim of the victim's right to refuse the interview. The prosecutor's office shall not notify the defendant of the victim's address, telephone number, location or any other personally identifiable information unless it is ordered by a court upon a showing of compelling need for the information.

          D. When an adult victim consents to an interview, the prosecutor's office shall inform the defendant of the time, place and manner the adult victim has selected for the interview. If the adult victim wishes to impose other conditions on the interview, the prosecutor's office shall inform the defendant of the conditions. The victim shall have the right to have an advocate present at the interview, to terminate the interview at any time or to refuse to answer any questions during the interview. At the request of the victim, the prosecutor shall have authority to protect the victim from harassment, intimidation or abuse during the interview and may seek a protective order. All parties participating in the interview shall respect the victim's health, privacy and dignity.

          E. Unless otherwise directed by the victim, the prosecutor may attend all interviews. If the prosecutor is not in attendance, the prosecutor may request a copy of an interview transcript at the prosecutor's expense.

          F. The defendant shall not comment on the victim's refusal to undergo an interview during trial. If such comment is made, the judge shall instruct the jury that the victim has the right to refuse an interview.

          G. Except for an acquittal or a case that was dismissed with prejudice, the right of a victim to refuse an interview, deposition or discovery request remains enforceable beyond the final disposition of the charges."

     SECTION 3. A new section of the Victims of Crime Act is enacted to read:

     "[NEW MATERIAL] ADMISSIBILITY OF A CHILD'S OR ADJUDICATED INCAPACITATED ADULT'S PREVIOUS STATEMENTS.--

          A. When a child or an adjudicated incapacitated adult testifies at a court proceeding as a victim of a criminal offense and is subject to cross-examination, a previously recorded statement of material fact by the child or adjudicated adult may be admitted if the court finds that the recorded statement bears adequate circumstantial guarantees of trustworthiness. In determining the trustworthiness of the statement, the court shall consider the timing of the recorded statement, the content of the statement, the context in which the statement was made and any corroborating evidence.

          B. A previous statement of material fact by a child or adjudicated incapacitated adult 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 or is corroborated by other evidence.

          C. Absent a showing of good cause, a proponent seeking admission of a statement of a child or an adjudicated incapacitated adult shall provide notice of intent to introduce such statement 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 4. Section 31-26-3 NMSA 1978 (being Laws 1994, Chapter 144, Section 3, as amended) is amended to read:

     "31-26-3. DEFINITIONS.--As used in the Victims of Crime Act:

          A. "adjudicated incapacitated adult" means a person eighteen years or older that has been determined by a court to have demonstrated partial or complete impairment by reason of mental illness, mental deficiency, physical illness or disability or chronic use of drugs or alcohol, to the extent that the person is unable to manage personal or financial affairs or unable to manage the person's estate;

          B. "child" means a person who is less than eighteen years of age;

          [A.] C. "court" means magistrate court, metropolitan court, children's court, district court, the court of appeals or the supreme court;

          [B.] D. "criminal offense" means:

                (1) negligent arson resulting in death or bodily injury, as provided in Paragraph (1) of Subsection [B] G of Section 30-17-5 NMSA 1978;

                (2) aggravated arson, as provided in Section

30-17-6 NMSA 1978;

                (3) aggravated assault, as provided in Section 30-3-2 NMSA 1978;

                (4) aggravated battery, as provided in Section 30-3-5 NMSA 1978;

                (5) dangerous use of explosives, as provided in Section 30-7-5 NMSA 1978;

                (6) negligent use of a deadly weapon, as provided in Section 30-7-4 NMSA 1978;

                (7) murder, as provided in Section 30-2-1 NMSA 1978;

                (8) voluntary manslaughter, as provided in Section 30-2-3 NMSA 1978;

                (9) involuntary manslaughter, as provided in Section 30-2-3 NMSA 1978;

                (10) kidnapping, as provided in Section 30-4-1 NMSA 1978;

                (11) criminal sexual penetration, as provided in Section 30-9-11 NMSA 1978;

                (12) criminal sexual contact of a minor, as provided in Section 30-9-13 NMSA 1978;

                (13) armed robbery, as provided in Section 30-16-2 NMSA 1978;

                (14) homicide by vehicle, as provided in Section 66-8-101 NMSA 1978;

                (15) great bodily [injury] harm by vehicle, as provided in Section 66-8-101 NMSA 1978;

                (16) abandonment or abuse of a child, as provided in Section 30-6-1 NMSA 1978;

                (17) stalking or aggravated stalking, as provided in the Harassment and Stalking Act;

                (18) aggravated assault against a household member, as provided in Section 30-3-13 NMSA 1978;

                (19) assault against a household member with intent to commit a violent felony, as provided in Section 30-3-14 NMSA 1978;

                (20) battery against a household member, as provided in Section 30-3-15 NMSA 1978; or

                (21) aggravated battery against a household member, as provided in Section 30-3-16 NMSA 1978;

          [C.] E. "court proceeding" means a hearing, argument or other action scheduled by and held before a court;

          F. "defendant" means the defendant, the defendant's attorney or an agent of the defendant;

          [D.] G. "family member" means a spouse, child, sibling, parent or grandparent;

          [E.] H. "formally charged" means the filing of an indictment, the filing of a criminal information pursuant to a bind-over order, the filing of a petition or the setting of a preliminary hearing;

          [F.] I. "victim" means an individual against whom a criminal offense is committed. "Victim" also means a family member or a victim's representative when the individual against whom a criminal offense was committed is a minor, is incompetent or is a homicide victim; and

          [G.] J. "victim's representative" means an individual designated by a victim or appointed by the court to act in the best interests of the victim."

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