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HOUSE BILL 173
56
TH LEGISLATURE
-
STATE
OF
NEW
MEXICO
-
FIRST SESSION
,
2023
INTRODUCED BY
Tara Jaramillo and Meredith A. Dixon and Jason C. Harper
and Andrea Reeb
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:
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"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
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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
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(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;
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[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
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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
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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
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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
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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
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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,
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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:
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"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
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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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