HOUSE BILL 173

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

INTRODUCED BY

Tara Jaramillo and Meredith A. Dixon and Jason C. Harper and Andrea Reeb and Kristina Ortez

 

 

 

 

AN ACT

RELATING TO TRIAL PROCEDURE; CHANGING THE NAME OF THE UNIFORM CHILD WITNESS PROTECTIVE MEASURES ACT TO THE CHILD AND ADJUDICATED INCAPACITATED ADULT WITNESS PROTECTIVE MEASURES ACT; ALLOWING A VICTIM THE RIGHT TO DENY A PRETRIAL STATEMENT OR PRETRIAL INTERVIEW PURSUANT TO THE CHILD AND ADJUDICATED INCAPACITATED ADULT WITNESS PROTECTIVE MEASURES ACT; PROVIDING FOR THE ADMISSIBILITY OF A CHILD'S OR ADJUDICATED INCAPACITATED ADULT'S FORENSIC INTERVIEW IN CERTAIN CIRCUMSTANCES; AMENDING THE UNIFORM CHILD WITNESS PROTECTIVE MEASURES ACT TO INCLUDE ADJUDICATED INCAPACITATED ADULTS; 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 and Adjudicated Incapacitated Adult 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 and Adjudicated Incapacitated Adult Witness Protective Measures Act:

          A. "adjudicated incapacitated adult witness" means a person sixteen years of age or older who 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 and who has been or will be called to testify in a noncriminal or criminal proceeding;

          [A.] B. "alternative method" means:

                (1) in a criminal proceeding in which a child witness or an adjudicated incapacitated adult witness does not give testimony in an open forum in full view of the finder of fact, a videotaped deposition of the child witness or adjudicated incapacitated adult 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 or adjudicated incapacitated adult witness, subject to such protection of the child witness or adjudicated incapacitated adult witness as the judge deemed necessary;

                (2) in a criminal proceeding in which a child witness or an adjudicated incapacitated adult witness does not give testimony face-to-face with the defendant, a videotaped deposition of the child witness or adjudicated incapacitated adult 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 or adjudicated incapacitated adult 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 or adjudicated incapacitated adult witness, subject to such protection of the child witness or adjudicated incapacitated adult 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 or adjudicated incapacitated adult witness testify in person in an open forum;

                     (b) having the child witness or adjudicated incapacitated adult 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 or adjudicated incapacitated adult witness;

          [B.] C. "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.] D. "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.] E. "forensic interview" means a developmentally sensitive and legally sound method of gathering factual information regarding allegations of abuse or exposure to violence that is conducted by a competently trained, neutral professional utilizing research and practice-informed techniques as part of a larger investigative process and that is recorded;

          F. "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.] G. "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 and Adjudicated Incapacitated Adult Witness Protective Measures Act is enacted to read:

     "[NEW MATERIAL] RIGHT TO REFUSE INTERVIEW.--A victim who is a child witness or an adjudicated incapacitated adult 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."

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

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

          A. When a child witness or an adjudicated incapacitated adult 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 or adjudicated incapacitated adult 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 and the context in which the forensic interview was conducted.

          B. A previous statement of material fact by a child witness or an adjudicated incapacitated adult 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 or an adjudicated incapacitated adult 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 and Adjudicated Incapacitated Adult Witness Protective Measures Act applies to the testimony, pretrial statement or pretrial interview of a child witness or an adjudicated incapacitated adult witness in a criminal or noncriminal proceeding. However, the [Uniform] Child and Adjudicated Incapacitated Adult Witness Protective Measures Act does not preclude, in a criminal or noncriminal proceeding, any other procedure permitted by law:

                (1) for a child witness or an adjudicated incapacitated adult 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 or an adjudicated incapacitated adult witness.

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

     SECTION 6. Section 38-6A-4 NMSA 1978 (being Laws 2011, Chapter 98, Section 4) is amended to read:

     "38-6A-4. HEARING WHETHER TO ALLOW TESTIMONY BY ALTERNATIVE METHOD.--

          A. The presiding officer in a criminal or noncriminal proceeding may order a hearing to determine whether to allow a child witness or an adjudicated incapacitated adult witness to testify by an alternative method. The presiding officer, for good cause shown, shall order the hearing upon motion of a party, a child witness or an adjudicated incapacitated adult witness or an individual determined by the presiding officer to have sufficient standing to act on behalf of the child witness or adjudicated incapacitated adult witness.

          B. A hearing to determine whether to allow a child witness or an adjudicated incapacitated adult witness to testify by an alternative method shall be conducted [on the record] after reasonable notice to all parties, to any nonparty movant and to any other person the presiding officer specifies. The [child's] child witness's or adjudicated incapacitated adult witness's presence is not required at the hearing unless ordered by the presiding officer."

     SECTION 7. Section 38-6A-5 NMSA 1978 (being Laws 2011, Chapter 98, Section 5) is amended to read:

     "38-6A-5. STANDARDS FOR DETERMINING WHETHER A CHILD WITNESS OR ADJUDICATED INCAPACITATED ADULT WITNESS MAY TESTIFY BY ALTERNATIVE METHOD.--

          A. In a criminal proceeding, the presiding officer may allow a child witness or an adjudicated incapacitated adult witness to testify by an alternative method in the following situations:

                (1) the child witness or adjudicated incapacitated adult witness may testify otherwise than in an open forum in the presence and full view of the finder of fact upon a showing that the child witness or adjudicated incapacitated adult witness may be unable to testify without suffering unreasonable and unnecessary mental or emotional harm; and

                (2) the child witness or adjudicated incapacitated adult witness may testify other than face-to-face with the defendant if the presiding officer makes specific findings that the child witness or adjudicated incapacitated adult witness would be unable to testify face-to-face with the defendant without suffering unreasonable and unnecessary mental or emotional harm.

          B. In a noncriminal proceeding, the presiding officer may allow a child witness or an adjudicated incapacitated adult witness to testify by an alternative method if the presiding officer finds that allowing the child witness or adjudicated incapacitated adult witness to testify by an alternative method is necessary to serve the best interests of the child witness or adjudicated incapacitated adult witness or enable the child witness or adjudicated incapacitated adult witness to communicate with the finder of fact. In making this finding, the presiding officer shall consider:

                (1) the nature of the proceeding;

                (2) the age and maturity of the child witness or adjudicated incapacitated adult witness;

                (3) the relationship of the child witness or adjudicated incapacitated adult witness to the parties in the proceeding;

                (4) the nature and degree of mental or emotional harm that the child witness or adjudicated incapacitated adult witness may suffer in testifying; and

                (5) any other relevant factor."

     SECTION 8. 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 or an adjudicated incapacitated adult 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 9. Section 38-6A-7 NMSA 1978 (being Laws 2011, Chapter 98, Section 7) is amended to read:

     "38-6A-7. ORDER REGARDING TESTIMONY BY ALTERNATIVE METHOD.--

          A. An order allowing or disallowing a child witness or an adjudicated incapacitated adult witness to testify by an alternative method shall state the findings of fact and conclusions of law that support the presiding officer's determination.

          B. An order allowing a child witness or an adjudicated incapacitated adult witness to testify by an alternative method shall:

                (1) state the method by which the child witness or adjudicated incapacitated adult witness is to testify;

                (2) list any individual or category of individuals allowed to be in, or required to be excluded from, the presence of the child witness or adjudicated incapacitated adult witness during the testimony;

                (3) state any special conditions necessary to facilitate a party's right to examine or cross-examine the child witness or adjudicated incapacitated adult witness;

                (4) state any condition or limitation upon the participation of individuals present during the testimony of the child witness or adjudicated incapacitated adult witness; and

                (5) state any other condition necessary for taking or presenting the testimony.

          C. The alternative method ordered by the presiding officer shall be no more restrictive of the rights of the parties than is necessary under the circumstances to serve the purposes of the order and shall be subject to the other provisions of the [Uniform] Child and Adjudicated Incapacitated Adult Witness Protective Measures Act."

     SECTION 10. Section 38-6A-8 NMSA 1978 (being Laws 2011, Chapter 98, Section 8) is amended to read:

     "38-6A-8. RIGHT OF PARTY TO EXAMINE CHILD WITNESS OR ADJUDICATED INCAPACITATED ADULT WITNESS.--An alternative method ordered by the presiding officer shall permit a full and fair opportunity for examination or cross-examination of the child witness or adjudicated incapacitated adult witness by each party, subject to such protection of the child witness or adjudicated incapacitated adult witness as the presiding officer deems necessary."

     SECTION 11. REPEAL.--Section 38-6A-9 NMSA 1978 (being Laws 2011, Chapter 98, Section 9) is repealed.

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