A. In any prosecution for criminal sexual penetration or criminal sexual contact of a minor, upon motion of the district attorney and after notice to the opposing counsel, the district court may, for a good cause shown, order the taking of a videotaped deposition of any alleged victim under the age of sixteen years. The videotaped deposition shall be taken before the judge in chambers in the presence of the district attorney, the defendant and his attorneys. Examination and cross-examination of the alleged victim shall proceed at the taking of the videotaped deposition in the same manner as permitted at trial under the provisions of Rule 611 of the New Mexico Rules of Evidence [Rule 11-611 NMRA]. Any videotaped deposition taken under the provisions of this act [this section] shall be viewed and heard at the trial and entered into the record in lieu of the direct testimony of the alleged victim.

B. For the purposes of this section, "videotaped deposition" means the visual recording on a magnetic tape, together with the associated sound, of a witness testifying under oath in the course of a judicial proceeding, upon oral examination and where an opportunity is given for cross-examination in the presence of the defendant and intended to be played back upon the trial of the action in court.

C. The supreme court may adopt rules of procedure and evidence to govern and implement the provisions of this act.

D. The cost of such videotaping shall be paid by the state.

E. Videotapes which are a part of the court record are subject to a protective order of the court for the purpose of protecting the privacy of the victim.

History: 1953 Comp., § 40A-9-27, enacted by Laws 1978, ch. 98, § 1.

Bracketed material. — The bracketed material was inserted by the compiler and is not part of the law.

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-001, 135 N.M. 160, 85 P.3d 802.

Defendant absent from trial voluntarily. Factors articulated in State v. Clements, 1988-NMCA-094, 108 N.M. 13, 765 P.2d 1195, cert. denied, 107 N.M. 785, 765 P.2d 758, as to waiver of right to be present being occasioned by the voluntary absence of an accused, were to be applied only when the defendant was absent from trial voluntarily. State v. Rodriguez, 1992-NMCA-088, 114 N.M. 265, 837 P.2d 459.

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 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 are supported by substantial evidence, because the accused child's right of confrontation requires 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.

Right of confrontation not denied. — 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.

Videotaping depositions of victims of sex crimes, while defendant was required to remain in a control room instead of the room in which the testimony was given, was consistent with this section and Rule 5-504 NMRA, and no violation of defendant's right to confrontation occurred. State v. Tafoya, 1988-NMCA-082, 108 N.M. 1, 765 P.2d 1183, cert. denied, 107 N.M. 785, 765 P.2d 758, cert. denied, 489 U.S. 1097, 109 S. Ct. 1572, 103 L. Ed. 2d 938 (1989).

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, as he 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.

Showing of traumatic effect. — Showing a traumatic effect upon 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).

Deposition need not be taken to charging paper on which defendant ultimately tried. — There is nothing in Rule 5-504 NMRA requiring a deposition to be taken pursuant to the charging paper upon which defendant is ultimately tried. A 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, cert. denied, 107 N.M. 74, 752 P.2d 789.

Second deposition admitted into evidence. — While it appears that the procedure outlined in this section and Rule 5-504 NMRA contemplates only one deposition, at which defense counsel should be on notice that this is his chance to confront the victim, although defendant never alerted the trial court why, following a deposition, a new video deposition was necessary, and 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, cert. denied, 107 N.M. 74, 752 P.2d 789.

Mistrial declared where tape inaudible at trial. — 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.

Consideration of whether evidence subject to public inspection. — Any determination of whether items of evidence are properly subject to public inspection and copying must necessarily consider the likelihood of injury to parties not involved in the particular case at bar. State ex rel. Bingaman v. Brennan, 1982-NMSC-059, 98 N.M. 109, 645 P.2d 982.

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, cert. quashed, 120 N.M. 394, 902 P.2d 76.

On appeal from a prosecution for criminal sexual contact of a minor, where defendant argued that the district court was constitutionally required to make specific findings justifying its substitution of videotaped testimony for face-to face confrontation, even though defendant never objected to the substitution, defendant waived his confrontation clause claim by failing to raise the confrontation issue at trial and there is no fundamental error. State v. Herrera, 2004-NMCA-015, 135 N.M. 79, 84 P.3d 696, cert. denied, 2004-NMCERT-001, 135 N.M. 160, 85 P.3d 802.

Law reviews. — For annual survey of criminal procedure in New Mexico, see 18 N.M.L. Rev. 345 (1988).

For article, "The Interpretation of the Confrontation Clause: Desire to Promote Perceived Societal Benefits and Denial of the Resulting Difficulties Produces Dichotomy in the Law," see 26 N.M. L. Rev. 353 (1996).

Am. Jur. 2d, A.L.R. and C.J.S. references. — Closed-circuit television witness examination, 61 A.L.R.4th 1155.