Section 38-6-8 - Witnesses with mental retardation; competency evaluation. - New Mexico Statutes

38-6-8. Witnesses with mental retardation; competency evaluation.

A.     As used in this section:   

(1)     "witness with mental retardation" means a witness in a proceeding whom the court has found after hearing, as provided in Subsection B of this section, to have mental retardation; and   

(2)     "mental retardation" means substantial limitations in present functioning characterized by significantly subaverage intellectual functioning, existing concurrently with related limitations in two or more of the following applicable skill areas:  communication, self-care, home living, social skills, community use, self-direction, health and safety, functional academics, leisure and work.   

B.     In any judicial proceeding wherein a witness with mental retardation may or will testify, the court on its own motion or on motion of the proponent of the witness with mental retardation, and after hearing, may order the use of one of the alternative procedures for determining competency to testify or for taking the testimony of the witness with mental retardation described below, provided that the court finds at the time of the order, by a preponderance of the evidence in the case, that the witness with mental retardation is likely, as a result of submitting to usual procedures for determining competency or as a result of testifying in open court:   

(1)     to suffer unreasonable and unnecessary mental or emotional harm; or   

(2)     to suffer a temporary loss of or regression in cognitive or behavioral functioning or communicative abilities such that his ability to testify will be significantly impaired.   

C.     If the court orders the use of an alternative procedure pursuant to this section, the court shall make and enter specific findings on the record describing the reasons for such order.   

D.     A court that makes findings in accordance with Subsection B of this section may order any of the following suitable alternative procedures for determining the competency to testify or for taking the testimony of the witness with mental retardation:   

(1)     taking the testimony of the witness with mental retardation while permitting a person familiar to the witness such as a family member, clinician, counselor, social worker or friend to sit near or next to him;   

(2)     taking the testimony of the witness with mental retardation in court but off the witness stand;   

(3)     if the proceeding is a bench proceeding, taking the testimony of the witness with mental retardation in a setting familiar to the witness;   

(4)     if the proceeding is a jury trial, videotaping of testimony, out of the presence of the jury or in a location chosen by the court or by agreement of the parties; or   

(5)     the procedure set forth in Paragraph (1) in combination with Paragraph (2), (3) or (4) of this subsection.   

E.     Testimony taken by a videotape pursuant to an order under Subsection B of this section shall be taken in the presence of the judge, counsel for all parties and such other persons as the court may allow. Counsel shall be given the opportunity to examine, confront or cross-examine the witness with mental retardation to the same extent as would be permitted if ordinary procedures had been followed, subject to such protection of the mentally retarded witness as the judge deems necessary.   

F.     An order issued under Subsection B of this section that the testimony of the witness with mental retardation be videotaped out of the presence of the jury shall provide that the videotape be shown in court to the jury in the presence of the judge, the parties and the parties' counsel.  At such courtroom showing, the audio portion of the video shall be entered into the record as would any oral testimony and shall be treated in all respects as oral testimony to the jury.   

G.     The videotape or giving of testimony taken by an alternative procedure pursuant to an order issued under Subsection B of this section shall be admissible as substantive evidence to the same extent as and in lieu of live testimony by the witness in any proceeding for which the order is issued or in any related proceeding against the same party when consistent with the interests of justice, provided that such an order is entered or re-entered based on current findings at the time when, or within a reasonable time before, the videotape or testimony is offered into evidence, and provided, in the case of a related criminal proceeding, that the requirements of Subsection E of this section were satisfied when the videotape was recorded or the alternative procedure was used.   

H.     Whenever, pursuant to an order issued under Subsection B of this section, testimony is recorded on videotape, the court shall ensure that:   

(1)     the recording equipment is capable of making an accurate recording and is operated by a competent operator;   

(2)     the recording is in color and is taken in well-lit conditions;   

(3)     the presence of the presiding judge, the attorneys, the defendant or parties, if in the room, and all other persons present is stated on the recording;   

(4)     the witness with mental retardation is visible at all times and, to the extent reasonably possible, the recording shows all persons present in the room as a jury would perceive them in open court;   

(5)     every voice on the recording is audible and identifiable;   

(6)     the recording is accurate, undistorted in picture or sound quality and has not been altered except as ordered by the court; and   

(7)     each party is afforded the opportunity to view the recording before it is shown in the courtroom.   

I.     The fact that the witness with mental retardation has been found in a court proceeding to be incompetent to make informed decisions of a personal, medical or financial nature, or is under a guardianship or conservatorship shall not preclude the witness from testifying if found competent to testify and, further, shall not preclude a determination of competency to testify.   

J.     The use of alternative procedures shall not be denied because they may take significantly more time than conventional procedures.   

K.     Expert opinion shall be admissible at any hearing held pursuant to this section, including hearings to determine the competency of a witness with mental retardation to testify.   

L.     Nothing in this section shall be deemed to prohibit the court from using other appropriate means, consistent with this section and other laws and with the defendant's rights, to protect a witness with mental retardation from trauma during a court proceeding.