N.M. R. Child. Ct. 10-340

As amended through August 23, 2024

Rule 10-340 - Testimony of a child in an abuse or neglect proceeding

A.Request to permit testimony by alternative method. The court may permit a child witness to testify by an alternative method upon request of a party, a child witness, or an individual determined by the court to have a sufficient connection to the child to act on behalf of the child. hearing on the request must be concluded on the record after reasonable notice to all parties, any non-party requestor, and any other person the court specifies. The child's presence is not required at the hearing unless ordered by the court. In conducting the hearing, the court is not bound by the Rules of Evidence except the rules of privilege.

B.lternative method. The court may allow a child witness to testify by an alternative method if the court finds by a preponderance of the evidence that allowing the child to testify by an alternative method is necessary to serve the best interests of the child or enable the child to communicate with the court. In making this finding, the court shall consider the following:

(1) the nature of the hearing;

(2) the age and maturity of the child;

(3) the relationship of the child to the parties in the proceeding;

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

(5) any other relevant factor.

C.Further considerations. If the court finds that the requirements of Paragraph B of this rule have been met, the court shall consider

(1) alternative methods reasonably available for protecting the interests of or reducing mental or emotional harm to the child;

(2) available means for protecting the interests of or reducing mental or emotional harm to the child without resort to an alternative method;

(3) the nature of the case;

(4) the relative rights of the parties;

(5) the importance of the proposed testimony of the child;

(6) the nature and degree of mental or emotional harm that the child may suffer if an alternative method is not used; and

(7) any other relevant factor.

D.Ruling regarding testimony by alternative method. The alternative method ordered by the court shall be no more restrictive of the rights of the parties than is necessary under the circumstances to serve the purposes of the order. n order allowing a child witness to testify by an alternative method shall set forth the court's findings and conclusions that support allowing the child to testify by an alternative method, including findings that demonstrate that an alternative method is necessary to serve the best interests of the child or enable the child to communicate with the court and that the alternative method allowed by the court protects the rights of the parties in light of the nature of the proceedings. n order allowing a child witness to testify by an alternative method also shall

(1) state the method by which the child 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 during the testimony;

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

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

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

[Approved by Supreme Court Order No. 16-8300-017, effective for all cases pending or filed on or after December 31, 2016.]

N.M. R. Child. Ct. 10-340

Committee commentary. - This rule is intended to supplement the Uniform Child Witness Protective Measures ct, NMS 1978, §§38-6-1 to -9. The rule provides standards for requesting and permitting an alternative method for a child to testify in an abuse and neglect proceeding. In considering the request, the court must balance the needs of the child ("to serve the best interests of the child or enable the child to communicate with the court") with the due process rights of the parties ("no more restrictive of the rights of the parties than is necessary under the circumstances to serve the purposes of the order"). See also In re Pamela .G., 2006-NMSC-018, & 18, 139 N.M. 459, 134 P.3d 746 ("[T]rial judges should explore alternatives for the questioning of a child in order to help the fact-finder test the reliability of the child's statements while also protecting the child's emotional state.").

[Approved by Supreme Court Order No. 16-8300-017, effective for all cases filed and pending on or after December 31 2016.]