New Mexico 2023 Regular Session Status: Passed House Bipartisan · 2 D · 1 R cosponsors

HB 173 — CHILD FORENSIC INTERVIEWS

Last action — Sent to Senate Judiciary Committee

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  1. ✓
    Introduced
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    In Committee
  3. 3
    Passed House
  4. 4
    Passed Senate
  5. 5
    To Executive
  6. 6
    Enacted

This bill died with 2023 Regular Session. It reached “Passed House” and never advanced before the session ended, so it can no longer move — a new version would have to be reintroduced in the current session.

This bill is no longer active — its legislative session has ended, so there is no live prognosis. It would have to be reintroduced in the current session to move again.

Bill Text

What changed in the latest version

206 added · 330 removed

Plain-language change summary

The bill has been amended to change its title from the "Uniform Child Witness Protective Measures Act" to the "Child and Adjudicated Incapacitated Adult Witness Protective Measures Act." This change expands the scope of the law to include protections for adjudicated incapacitated adults in addition to child witnesses. Additionally, the amendment allows victims the right to deny a pretrial statement or interview, which enhances their control and privacy in legal proceedings. This matters because it aims to make the legal process more considerate of vulnerable individuals while ensuring their voices are heard in a sensitive manner.

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HOUSE BILL 173 56TH LEGISLATURE -STATEOFNEWMEXICO- FIRST SESSION, 2023 INTRODUCED BY Tara Jaramillo and Meredith A.
HOUSE JUDICIARY COMMITTEE SUBSTITUTE FOR HOUSE BILL 173 56TH LEGISLATURE -STATEOFNEWMEXICO- FIRST SESSION, 2023 4 6 8 10 AN ACT RELATING TO TRIAL PROCEDURE;
Dixon and Jason C.
ALLOWING A VICTIM THE RIGHT TO DENY A PRETRIAL STATEMENT OR PRETRIAL INTERVIEW;
Harper and Andrea Reeb and Kristina Ortez 7 9 AN ACT RELATING TO TRIAL PROCEDURE;
PROVIDING FOR THE ADMISSIBILITY OF A CHILD'S FORENSIC INTERVIEW IN CERTAIN CIRCUMSTANCES;
CHANGING THE NAME OF THE UNIFORM CHILD WITNESS PROTECTIVE MEASURES ACT TO THE CHILD AND ADJUDICATED INCAPACITATED ADULT WITNESS PROTECTIVE MEASURES ACT;
AMENDING, REPEALING AND ENACTING SECTIONS OF THE NMSA 1978.
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;
e t 17 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
PROVIDING e t 17 FOR THE ADMISSIBILITY OF A CHILD'S OR ADJUDICATED INCAPACITATED w l n d 18 ADULT'S FORENSIC INTERVIEW IN CERTAIN CIRCUMSTANCES;
w l n d 18 SECTION 1.
AMENDING = = 19 a l THE UNIFORM CHILD WITNESS PROTECTIVE MEASURES ACT TO INCLUDE i a e r 20 ADJUDICATED INCAPACITATED ADULTS;
Section 38-6A-1 NMSA 1978 (being Laws 2011, = = 19 a l Chapter 98, Section 1) is amended to read:
AMENDING, REPEALING AND a t m m 21 ENACTING SECTIONS OF THE NMSA 1978.
i a e r 20 "38-6A-1.
d r e 22 c e s k 23 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
SHORT TITLE.--[This act] Chapter 38, Article 6A a t m m 21 NMSA 1978 may be cited as the "[Uniform] Child Witness d r e 22 Protective Measures Act"." c e s k 23 SECTION 2.
e a n b 24 SECTION 1.
Section 38-6A-2 NMSA 1978 (being Laws 2011, e a n b 24 Chapter 98, Section 2) is amended to read:
Section 38-6A-1 NMSA 1978 (being Laws 2011, u [ Chapter 98, Section 1) is amended to read:
u [ "38-6A-2.
.223102.5 "38-6A-1.
DEFINITIONS.--As used in the [Uniform] Child .225517.2 HJC/HB 173 Witness Protective Measures Act:
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:
"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 e t 17 criminal proceeding;
w l n d 18 [A.] B.
= = 19 a l (1) in a criminal proceeding in which a child i a e r 20 witness or an adjudicated incapacitated adult witness does not a t m m 21 give testimony in an open forum in full view of the finder of d r e 22 fact, a videotaped deposition of the child witness or c e s k 23 adjudicated incapacitated adult witness that complies with the e a n b 24 following requirements:
(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:
u [ (a) the deposition was presided over by .223102.5 - 2 - a district judge;
(a) the deposition was presided over by a district judge;
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;
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 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:
(2) in a criminal proceeding in which a child e t 17 witness does not give testimony face-to-face with the w l n d 18 defendant, a videotaped deposition of the child witness that = = 19 complies with the following requirements:
(a) the deposition was presided over by e t 17 a district judge;
a l i a e r 20 (a) the deposition was presided over by a t m m 21 a district judge;
w l n d 18 (b) the defendant was represented by = = 19 a l counsel at the deposition or waived counsel;
d r e 22 (b) the defendant was represented by c e s k 23 counsel at the deposition or waived counsel;
i a e r 20 (c) the defendant was able to view the a t m m 21 deposition, including the child witness or adjudicated d r e 22 incapacitated adult witness, through closed-circuit television c e s k 23 or equivalent technology, and the defendant and counsel were e a n b 24 able to communicate with each other during the deposition u [ through headsets and microphones or equivalent technology;
e a n b 24 (c) the defendant was able to view the u [ deposition, including the child witness, through closed-circuit .225517.2 - 2 - HJC/HB 173 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 .223102.5 - 3 - (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;
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;
(a) having the child witness or adjudicated incapacitated adult witness testify in person in an open forum;
(a) having the child 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;
(b) having the child witness testify in the presence and full view of the finder of fact and presiding e t 17 officer;
and (c) allowing all of the parties to be e t 17 present, to participate and to view and be viewed by the child w l n d 18 witness or adjudicated incapacitated adult witness;
and w l n d 18 (c) allowing all of the parties to be = = 19 present, to participate and to view and be viewed by the child a l i a e r 20 witness;
= = 19 a l [B.] C.
a t m m 21 B.
i a e r 20 (1) an individual under the age of sixteen who a t m m 21 has been or will be called to testify in a noncriminal d r e 22 proceeding;
d r e 22 (1) an individual under the age of sixteen who c e s k 23 has been or will be called to testify in a noncriminal e a n b 24 proceeding;
or c e s k 23 (2) an alleged victim under the age of sixteen e a n b 24 who has been or will be called to testify in a criminal u [ proceeding;
or u [ (2) an alleged victim under the age of sixteen .225517.2 - 3 - HJC/HB 173 who has been or will be called to testify in a criminal proceeding;
.223102.5 - 4 - [C.] D.
C.
D.
"forensic interview" means a recorded interview conducted through a children's advocacy center pursuant to the Children's Advocacy Centers Act;
"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;
"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;
F.
and e t 17 [E.] 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 e t 17 case, an administrative proceeding or any other case or w l n d 18 proceeding other than a criminal proceeding;
"presiding officer" means the person under w l n d 18 whose supervision and jurisdiction the proceeding is being = = 19 conducted.
and = = 19 a l [E.] G.
"Presiding officer" includes a judge in whose court a l i a e r 20 a case is being heard, a quasi-judicial officer or an a t m m 21 administrative law judge or hearing officer." d r e 22 SECTION 3.
"presiding officer" means the person under i a e r 20 whose supervision and jurisdiction the proceeding is being a t m m 21 conducted.
A new section of the Child Witness Protective c e s k 23 Measures Act is enacted to read:
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"Presiding officer" includes a judge in whose court d r e 22 a case is being heard, a quasi-judicial officer or an c e s k 23 administrative law judge or hearing officer." e a n b 24 SECTION 3.
e a n b 24 "[NEW MATERIAL] RIGHT TO REFUSE INTERVIEW.--A victim who u [ is a child witness who has previously given a recorded .225517.2 - 4 - HJC/HB 173 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;
A new section of the Child and Adjudicated u [ Incapacitated Adult Witness Protective Measures Act is enacted .223102.5 - 5 - to read:
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.
"[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 Witness Protective Measures Act is enacted to read:
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 PREVIOUS STATEMENTS.-- A.
"[NEW MATERIAL] ADMISSIBILITY OF A CHILD WITNESS'S OR ADJUDICATED INCAPACITATED ADULT 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 e t 17 the child witness may be admitted as evidence if the court w l n d 18 finds that the forensic interview bears adequate circumstantial = = 19 guarantees of trustworthiness.
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 e t 17 to cross-examination, a forensic interview by the child witness w l n d 18 or adjudicated incapacitated adult witness may be admitted as = = 19 a l evidence if the court finds that the forensic interview bears i a e r 20 adequate circumstantial guarantees of trustworthiness.
In determining the a l i a e r 20 trustworthiness of the forensic interview, the court shall a t m m 21 consider the timing of the forensic interview, the content of d r e 22 the forensic interview, the thoroughness of the forensic c e s k 23 interview and the context in which the forensic interview was e a n b 24 conducted.
In a t m m 21 determining the trustworthiness of the forensic interview, the d r e 22 court shall consider the timing of the forensic interview, the c e s k 23 content of the forensic interview and the context in which the e a n b 24 forensic interview was conducted.
A previous statement of material fact by a child .223102.5 - 6 - 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.
A previous statement of material fact by a child .225517.2 - 5 - HJC/HB 173 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.
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.
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.
APPLICABILITY.-- e t 17 A.
APPLICABILITY.-- A.
The [Uniform] Child and Adjudicated w l n d 18 Incapacitated Adult Witness Protective Measures Act applies to = = 19 a l the testimony, pretrial statement or pretrial interview of a i a e r 20 child witness or an adjudicated incapacitated adult witness in a t m m 21 a criminal or noncriminal proceeding.
The [Uniform] Child Witness Protective Measures Act applies to the testimony, pretrial statement or pretrial e t 17 interview of a child witness in a criminal or noncriminal w l n d 18 proceeding.
However, the [Uniform] d r e 22 Child and Adjudicated Incapacitated Adult Witness Protective c e s k 23 Measures Act does not preclude, in a criminal or noncriminal e a n b 24 proceeding, any other procedure permitted by law:
However, the [Uniform] Child Witness Protective = = 19 Measures Act does not preclude, in a criminal or noncriminal a l i a e r 20 proceeding, any other procedure permitted by law:
u [ (1) for a child witness or an adjudicated .223102.5 - 7 - incapacitated adult witness to testify by an alternative method, however denominated;
a t m m 21 (1) for a child witness to testify by an d r e 22 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.
or c e s k 23 (2) for protecting the interests of or e a n b 24 reducing mental or emotional harm to a child witness.
B.
u [ 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.
The supreme court may adopt rules of procedure .225517.2 - 6 - HJC/HB 173 and evidence to implement the provisions of the [Uniform] Child Witness Protective Measures Act." SECTION 6.
Section 38-6A-4 NMSA 1978 (being Laws 2011, Chapter 98, Section 4) is amended to read:
Section 38-6A-6 NMSA 1978 (being Laws 2011, Chapter 98, Section 6) 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 e t 17 witness to testify by an alternative method.
The presiding w l n d 18 officer, for good cause shown, shall order the hearing upon = = 19 a l motion of a party, a child witness or an adjudicated i a e r 20 incapacitated adult witness or an individual determined by the a t m m 21 presiding officer to have sufficient standing to act on behalf d r e 22 of the child witness or adjudicated incapacitated adult c e s k 23 witness.
e a n b 24 B.
A hearing to determine whether to allow a child u [ witness or an adjudicated incapacitated adult witness to .223102.5 - 8 - 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 e t 17 incapacitated adult witness may testify otherwise than in an w l n d 18 open forum in the presence and full view of the finder of fact = = 19 a l upon a showing that the child witness or adjudicated i a e r 20 incapacitated adult witness may be unable to testify without a t m m 21 suffering unreasonable and unnecessary mental or emotional d r e 22 harm;
and c e s k 23 (2) the child witness or adjudicated e a n b 24 incapacitated adult witness may testify other than face-to-face u [ with the defendant if the presiding officer makes specific .223102.5 - 9 - 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 e t 17 or adjudicated incapacitated adult witness;
w l n d 18 (3) the relationship of the child witness or = = 19 a l adjudicated incapacitated adult witness to the parties in the i a e r 20 proceeding;
a t m m 21 (4) the nature and degree of mental or d r e 22 emotional harm that the child witness or adjudicated c e s k 23 incapacitated adult witness may suffer in testifying;
and e a n b 24 (5) any other relevant factor." u [ SECTION 8.
Section 38-6A-6 NMSA 1978 (being Laws 2011, .223102.5 - 10 - Chapter 98, Section 6) is amended to read:
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:
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:
available means for protecting the interests of or reducing mental or emotional harm to the child without resort to an alternative method;
available means for protecting the interests of or reducing mental or emotional harm to the child without e t 17 resort to an alternative method;
C.
w l n d 18 C.
e t 17 D.
= = 19 D.
w l n d 18 E.
a l i a e r 20 E.
the importance of the proposed testimony of the = = 19 a l child;
the importance of the proposed testimony of the a t m m 21 child;
i a e r 20 F.
d r e 22 F.
the nature and degree of mental or emotional a t m m 21 harm that the child may suffer if an alternative method is not d r e 22 used;
the nature and degree of mental or emotional c e s k 23 harm that the child may suffer if an alternative method is not e a n b 24 used;
and c e s k 23 G.
and u [ G.
any other relevant factor]." e a n b 24 SECTION 9.
any other relevant factor]." .225517.2 - 7 - HJC/HB 173 SECTION 7.
Section 38-6A-7 NMSA 1978 (being Laws 2011, u [ Chapter 98, Section 7) is amended to read:
REPEAL.--Section 38-6A-9 NMSA 1978 (being Laws 2011, Chapter 98, Section 9) is repealed.
.223102.5 - 11 - "38-6A-7.
- 8 - 5 7 9 11 13 15 e t 17 w l n d 18 = = 19 a l i a e r 20 a t m m 21 d r e 22 c e s k 23 e a n b 24 u [ .225517.2
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 e t 17 adult witness during the testimony;
w l n d 18 (3) state any special conditions necessary to = = 19 a l facilitate a party's right to examine or cross-examine the i a e r 20 child witness or adjudicated incapacitated adult witness;
a t m m 21 (4) state any condition or limitation upon the d r e 22 participation of individuals present during the testimony of c e s k 23 the child witness or adjudicated incapacitated adult witness;
e a n b 24 and u [ (5) state any other condition necessary for .223102.5 - 12 - 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 e t 17 officer deems necessary." w l n d 18 SECTION 11.
REPEAL.--Section 38-6A-9 NMSA 1978 (being = = 19 a l Laws 2011, Chapter 98, Section 9) is repealed.
i a e r 20 - 13 - a t m m 21 d r e 22 c e s k 23 e a n b 24 u [ .223102.5
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Action History

  1. Sent to Senate Judiciary Committee

  2. passed House

  3. DO NOT PASS, replaced with committee substitute

  4. DO PASS committee report adopted

  5. Sent to House Health & Human Services Committee & House Judiciary Committee

Sponsors

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5 sponsors · 0 co-sponsors · 107 not signed on

Sponsors (5)

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None.

Not signed on (107)

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Frequently asked questions

Who sponsors HB 173?
HB 173 is sponsored by Harper, Jason C., Jaramillo, Tara, Meredith A. Dixon (Democrat), Andrea Reeb (Republican), and Kristina Ortez (Democrat).
What is the current status of HB 173?
This bill died with 2023 Regular Session. It reached “Passed House” and never advanced before the session ended, so it can no longer move — a new version would have to be reintroduced in the current session.
Where can I track HB 173?
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