N.M. R. Crim. P. Dist. Ct. 5-504

As amended through November 15, 2023
Rule 5-504 - Videotaped depositions; testimony of certain minors who are victims of sexual offenses
A.When allowed. Upon motion, and after notice to opposing counsel, at any time after the filing of the indictment, information or complaint in district court charging a criminal sexual penetration or criminal sexual contact on a child under sixteen (16) years of age, the district court may order the taking of a videotaped deposition of the victim, upon a showing that the child may be unable to testify without suffering unreasonable and unnecessary mental or emotional harm. The district judge must attend any deposition taken pursuant to this paragraph and shall provide such protection of the child as the judge deems necessary.
B.Use at trial. At the trial of a defendant charged with criminal sexual penetration or criminal sexual contact on a child under sixteen (16) years of age, any part or all of the videotaped deposition of a child under sixteen (16) years of age taken pursuant to Paragraph A of this rule, may be shown to the trial judge or the jury and admitted as evidence as an additional exception to the hearsay rule of the Rules of Evidence if:
(1) the child is unable to testify before the court without suffering unreasonable and unnecessary mental or emotional harm;
(2) the deposition was presided over by a district judge and the defendant was present and was represented by counsel or waived counsel; and
(3) the defendant was given an adequate opportunity to cross-examine the child, subject to such protection of the child as the judge deems necessary.
C.Additional use at trial. In addition to the use of a videotaped deposition as permitted by Paragraph B of this rule, a videotaped deposition may be used for any of the reasons set forth in Paragraph N of Rule 5-503.

N.M. R. Crim. P. Dist. Ct. 5-504

As amended, effective July 1, 1988.

Committee commentary. - This rule was drafted by the rules committee in response to House Memorial 26, Second Session of the Thirty-Third Legislature, 1978 and Section 30-9-17 NMSA 1978. The purpose of 30-9-17, supra, is to protect a child who has been allegedly sexually abused from further mental stress. The committee explored several alternatives prior to preparing this draft.

First of all, the committee explored the possibility of removing all spectators from the courtroom during the child's testimony. This was rejected as it may not be constitutionally permissible to bar wholly the public and the press from the courtroom without the concurrence of the defendant under either the New Mexico Constitution or the United States Constitution. See Gannett Co. v. DePasquale, 99 S. Ct. 2898 (1979); Estes v. Texas, 381 U.S. 532, 587, 85 S. Ct. 1628, 1662, 14 L. Ed. 2d 543, 583 (1965). Prior to the Gannett decision, it was generally recognized that the right to a public trial under the United States Constitution could not even be waived by the defendant. See Constitution of the United States, congressional research service, 1973. There is also a right to a public trial under the New Mexico Constitution; however, there are no decisions relating to the waiver of this right.

Next, the committee considered further protections which could be afforded to the child. It was noted that the present rules already provide for the court to protect the child during discovery. See Rule 5-507 NMRA.

Several members of the committee had grave concerns about the constitutionality of not requiring an available witness to confront the accused. Section 30-9-17 NMSA 1978 provides only that good cause must be shown for the taking of the videotaped deposition. The rule sets forth specifically what is required to make a showing of good cause for a deposition of an alleged rape victim. Under the rule, the child must be under the age of sixteen and unable to testify without suffering unreasonable and unnecessary mental or emotional harm.

In 1988, the committee was requested to consider proposing amendments to Rule 5-504 NMRA which would further protect the child from unnecessary psychological harm. The committee was advised that in order to show good cause, some children have been subjected to two or three psychological evaluations. These evaluations in themselves have, in some cases, created unnecessary psychological harm to the child defeating the purpose of the statute and court rule. Since the present rule does not require a psychological examination, the committee did not believe that further amendments were necessary. Further, the committee is of the opinion that in the rare case that a psychological examination is necessary to show good cause, the trial judge should appoint an independent psychiatrist or psychologist to examine the child and the report to the court. No other examination should be required. The court's determination that psychological harm may result should be made outside the adversarial process.

The committee is of the opinion that the court should consider the following factors in determining whether a videotaped deposition should be taken to avoid a victim child from suffering unreasonable and unnecessary mental or emotional harm:

(1) the child is unable to testify because of fear;

(2) there is a substantial likelihood, established by expert testimony, that the child would suffer emotional trauma from testifying;

(3) the child suffers a mental or other infirmity; or

(4) conduct by defendant or defense counsel causes the child to be unable to continue testifying.

[Revised, effective May 1, 2002.]

ANNOTATIONS Use of victim's depositions constitutional. - In a prosecution for criminal sexual contact with a minor, use of the victim's videotaped deposition did not deny the defendant the right of confrontation. The defendant was not deprived of his right to fairly and fully cross-examine the child during the deposition, and the jury, which heard the child's testimony and viewed the child, via videotape, while she testified, had an adequate opportunity to observe the child's demeanor. State v. Vigil, 1985-NMCA-103, 103 N.M. 583, 711 P.2d 28. In a prosecution for sexual abuse, trial judge did not abuse his discretion in allowing the children to testify by way of depositions that were videotaped outside the presence of the defendant and then shown to the jury, since the judge made the requisite findings that the individualized harm which would otherwise result in the child victims outweighed the defendant's right to a face-to-face confrontation with his accusers. State v. Fairweather, 1993-NMSC-065, 116 N.M. 456, 863 P.2d 1077. Videotaped testimony of deceased witness held admissible. - Where no prejudice was shown by the defendant in indicating which portions of a videotape were objectionable even though Rule 29 (see now Rule 5-503 NMRA) was not complied with, a videotape of the testimony of the state's eyewitness, who died prior to trial, was admissible. State v. Martinez, 1981-NMSC-005, 95 N.M. 445, 623 P.2d 565, overruled on other grounds by Fuson v. State, 1987-NMSC-034, 105 N.M. 632, 735 P.2d 1138 (decided prior to adoption of rule). Record insufficient to justify denial of right to confront victim. - Where a child was charged with criminal sexual contact with his sister, and, at trial, the victim testified in chambers with only counsel and the judge present and the accused child observed the victim testify on a video monitor located in another room, the procedure was invalid without particularized findings of special harm to the particular child witness which were supported by substantial evidence, because the child's right of confrontation required that he be permitted to confront each of the witnesses against him, including the child victim. State v. Benny E., 1990-NMCA-052, 110 N.M. 237, 794 P.2d 380. Defendant absent from trial voluntarily. - Since the factors articulated in State v. Clements, 1988-NMCA-094, 108 N.M. 13, 765 P.2d 1195, for courts to consider in determining when the public interest is clearly persuasive so that the court may proceed in absentia, are to be applied only when the defendant is absent from trial voluntarily, exclusion of defendant, accused of criminal sexual penetration of a minor, from the courtroom during the child's testimony, because of emotional distress it would have caused the child, was reversible error. State v. Rodriguez, 1992-NMCA-088, 114 N.M. 265, 837 P.2d 459. Child unavailable due to trauma. - Showing a traumatic effect to the child is sufficient to render the child unavailable to testify. Vigil v. Tansy, 917 F.2d 1277 (10th Cir. 1990), cert. denied, 498 U.S. 1100, 111 S. Ct. 995, 112 L. Ed. 2d 1078 (1991). Second deposition allowed. - While it appears that the procedure outlined in Section 30-9-17 NMSA 1978 and this rule contemplates only one deposition, at which defense counsel should be on notice that this is his chance to confront the victim, where the defendant never alerted the trial court why, following a deposition, a new video deposition was necessary and where he never specifically informed the appellate court, with references to the record, why a new video deposition was necessary, it could not be said that the trial court erred in allowing defendant to take a second deposition and then allowing both the first and second videotaped depositions into evidence. State v. Larson, 1988-NMCA-019, 107 N.M. 85, 752 P.2d 1101. Inaudible videotape resulting in mistrial. - Where videotape of testimony of 11-year-old victim of alleged criminal sexual penetration was inaudible at trial and child was unavailable to testify in person because of illness and possible emotional harm, there existed a "manifest necessity" for declaring a mistrial, so that double jeopardy did not bar defendant's retrial. State v. Messier, 1984-NMCA-085, 101 N.M. 582, 686 P.2d 272. Charging paper not required. - There is nothing in this rule requiring the deposition to be taken pursuant to the charging paper upon which the defendant is ultimately tried. The deposition may be taken pursuant to a complaint and then introduced at a trial on an indictment or information. State v. Larson, 1988-NMCA-019, 107 N.M. 85, 752 P.2d 1101. Waiver of required state showing. - In a prosecution for criminal sexual penetration of a minor, since, in order to gain a continuance, the defendant had agreed to allow the admission of videotaped depositions at trial, he could not complain on appeal that the state failed to make the requisite showing for admissibility of the depositions. State v. Trujillo, 1995-NMCA-008, 119 N.M. 772, 895 P.2d 672. Implicit waiver of right to confrontation. - Where defendant at trial did not file a response to the state's motion for a videotaped deposition, nor did he object at the time of the taking of the deposition or at the time that the district court admitted the deposition tape as evidence, but, to the contrary, defendant relied on both the deposition tape and the interview tape in his opening and closing arguments, defendant's actions indicate that he implicitly waived his right to face-to-face confrontation by conduct. State v. Herrera, 2004 NMCA-015, 135 N.M. 79, 84 P.3d 696, cert. denied, 2004-NMCERT-004. Law reviews. - For annual survey of New Mexico criminal procedure, see 16 N.M.L. Rev. 25 (1986). For annual survey of criminal procedure in New Mexico, see 18 N.M.L. Rev. 345 (1988). Am. Jur. 2d, A.L.R. and C.J.S. references. - Necessity or permissibility of mental examination to determine competency or credibility of complainant in sexual offense prosecution, 45 A.L.R.4th 310.