27.1 COMPETENCY OF A MINOR TO TESTIFY

27.1.1 THE LAW
Statute. §32A-6-5: “The fact that a child has been accepted at or admitted to a hospital or institutional facility or has received mental health or developmental disability treatment services shall not constitute a sufficient basis for a finding of incompetence or the denial of a right or benefit of any nature that the child would have otherwise.”

Rule. Rule 11-601 of the Rules of Evidence: “Every person is competent to be a witness except as otherwise provided in these rules.”

Case Law. Children have been accepted as competent witnesses in federal court, see Wheeler v. U.S., 159 U.S. 523, 524-25 (1895), and New Mexico courts for over 100 years. In Territory v. DeGutman, 8 N.M. 92, 97-98 (1895), a ten-year-old child was declared competent to testify. The court observed that trial judges should inquire into the “degree of understanding possessed [by the child], and if it then appears that the child has sufficient natural intelligence, and understands the nature and effect of an oath, he [should] be permitted to testify, whatever his age may be.”

The statement in DeGutman essentially summarizes the rule as it remains today. To testify, a witness must possess all of the following:

• Capacity to observe.
• Sufficient intelligence.
• Adequate memory.
• Ability to communicate.
• Awareness of the difference between truth and falsehood.
• Appreciation of the obligation to tell the truth in court.

These requirements apply to all witnesses, including children. Myers, Evidence in Child Abuse and Neglect Cases, 3.1. All persons are presumed competent to testify, absent a showing to the contrary. No modern rule defines any particular age as conclusive of competency. See Wigmore, Evidence in Trials at Common Law, v.2, §505. In State v. Hunsaker, 693 P.2d 724 (Wash. 1984), a 3-year old child was found competent to testify about what had happened to her when she was age 2.

New Mexico Cases. The following New Mexico cases address this issue:

• State v. Armijo, 18 N.M. 262 (1913). A 15-year old "apparently ignorant and illiterate" child was permitted to testify. The court will not review the discretion of the trial court in permitting a child of tender years to testify, except in a clear case of abuse of discretion.
• State v. Ybarra, 24 N.M. 413 (1918). A child of "tender years" was permitted to testify. The court held that although the child stated that he did not understand the nature of an oath, that "is not of itself sufficient ground for his exclusion as a witness, where it clearly appears that the child has sufficient intelligence to understand the nature of an oath and to narrate the facts accurately, and knows that it is wrong to tell an untruth and right to tell the truth, and that if he told an untruth he would be punished, and, from other facts, that he is competent."
• State v. Manlove, 79 N.M. 189 (Ct. App. 1968). A 6-year old girl victim of sexual assault was permitted to testify. The court stated there is no rule of law setting a birth date for presumed competency, and the burden of showing incompetency is on the party asserting it. The court held that "the trial court must determine from inquiries the child's capacities of observation, recollection and communication, and also the child's appreciation or consciousness of a duty to speak the truth."
• State v. Barnes, 83 N.M. 566 (Ct. App. 1972). Two boys ages 10 and 11 were held competent to testify. The issue of competence was within the discretion of the trial court.
• State v. Estrada, 86 N.M. 286 (Ct. App. 1974). The trial court did not abuse its discretion in finding a child witness competent to testify who had just turned 8 and stated that to tell a lie meant you were not telling the truth and that he would get into trouble if he told a lie.
• State v. Noble, 90 N.M. 360 (1977). A 7-year old eyewitness understood her duty to tell the truth and thus was competent to testify. The court can determine, after inquiring into the child's capacities of observation, recollection, and communication, and also the child's appreciation or consciousness of a duty to speak the truth, whether the witness's testimony is competent.
• State v. Macias, 110 N.M. 246 (Ct. App. 1990). "Competency means that the witness appreciates the duty to speak the truth and possesses the intelligence and the capacities to observe, recollect, and communicate." In order for the videotaped interviews of children aged 3 and 4 to fall within the Rule 11-804(B)(2) exception to the hearsay rule that requires witness to be unavailable, the children had to be declared incompetent to testify. The court concluded that the incompetency determination was inadequate because the children were not questioned about their ability to recall or the duty to tell the truth.
• State v. Fairweather, 116 N.M. 456 (1993). "A child witness, or any competent witness for that matter, need not know the consequences of perjurious testimony, or even what the term 'perjury' means; he or she need only know that lying is wrong." Thus, even though there were inconsistencies in one of the boys' testimony, this did not mean the boy was incompetent to testify.
• State v. Ruiz, 2007-NMCA-014,141 N.M. 53. The competency of a child victim was challenged based on a claim of non reliability due to suggestive questioning and interviewing techniques. “Although New Mexico's courts have recognized the dangers associated with suggestive interviewing techniques in cases of this nature, see In re Troy P., 114 N.M. 525, 528, 842 P.2d 742, 745 (Ct. App. 1992), neither this Court, nor the New Mexico Supreme Court, has adopted the novel Michaels approach, which places a heavy burden on the proponent of child victim testimony to establish its reliability.” “When an individual's competency to testify is challenged, the district courts are merely required to conduct an inquiry in order to ensure that he or she meets a minimum standard, such that a reasonable person could ‘put any credence in their testimony.’”

At any proceeding with a child witness, the trial judge must decide whether the witness is competent to testify. Starting with the threshold assumption that any witness is competent unless shown otherwise, it has been unclear what methods and procedures the court should use for determining testimonial competency when a minor witness’s ability is questioned. Some basic rules, however, are applicable to this determination.

27.1.2 PROCEDURE FOR DETERMINING TESTIMONIAL COMPETENCE
Competency Examination. When testimonial competence is questioned and properly raised before the court, the judge may conduct a competency examination. The approach is similar to that used for voir dire of experts or other witnesses whose testimony must be evaluated under the balancing tests of Rules 11-401 and 11-403. In practice, most judges expect the proponent of a child’s testimony to establish competency as foundation for the child’s testimony.

Burden of Proof. The burden of proof in such proceedings is upon the party challenging the child witness’s competency. The party questioning competency must raise the issue to the court and must make an objection if the party believes that a particular procedure in making the inquiry is incorrect. State v. Manlove, 79 N.M. 189, 190 (Ct. App. 1968).

Application of Rules of Evidence. The Rules of Evidence do not apply to the court’s inquiry. Rule 11-104(A). Except for the rules relating to privilege, the evidence rules are not invoked in the court’s exploration into testimonial competence. That liberality, however, does not imply that the court should entertain any evidence offered. Objections to materiality or relevance and Rule 401 and 403 challenges are proper, and the court should its exercise discretion based upon the child witness’s responses to questions, as well as by observing the child’s overall demeanor and maturity. The court may rely upon extrinsic evidence such as testimony or reports from doctors, psychologists, therapists, evaluators, etc., if determined necessary. See 2 Wigmore §485. As with most other evidentiary issues, the court has broad discretion to admit or exclude the testimony of a child witness, and reversal is only upon a showing of abuse of discretion. State v. Macias, 110 N.M. 246 (Ct. App. 1990).

Continuing Duty. The court’s duty to determine competency does not end after a threshold decision is made to allow a child to testify. Throughout the child’s testimony, the court must continue observing and evaluating the child for competence, and after a child concludes his/her testimony, the court may properly consider a motion to reconsider its earlier decision to allow the testimony, and/or to strike the witness’s evidence. Kentucky v. Stincer, 482 U.S. 730 (1987).

Evaluation Format. The examination format should be governed by the needs of the child, and lies within the discretion of the trial judge. State v. Manlove, supra.; People v. Wood, 776 P.2d 1083, 1087 n.4 (Colo. 1989). During the competency evaluation, the court typically does not discuss with the child the facts or merits of the case, but has discretion to do so if the judge finds it an important area to explore with respect to the competency question. People v. Trujillo, 923 P.2d 277, 281 (Colo. App. 1996); but see State v. Scott, 501 N.W.2d 608, 613-615 (Minn. 1993). The accused need not be present during this voir dire of the child witness. Kentucky v. Stincer, 482 U.S. 730 (1987); see also 18 U.S.C. §3509(c)(5). Courts have been permitted to conduct voir dire of the child with or without the participation of counsel during or before trial. The judge may choose a setting other than the courtroom (such as chambers) for the competency evaluation. Leading questions are not prohibited in the court’s evaluation hearing. Burkett v. State, 439 So.2d 737 (Ala. Crim. App. 1983).

Child Development Considerations. Recent research has revealed that generally a majority of 5-year old children correctly identify truthful statements and lies and recognize that lying is bad. However, most children up to the age of 7 cannot define the terms “truth” or “lie” or explain the difference between them. Because children may be capable of testifying truthfully despite their limited vocabulary and linguistic immaturity, age appropriate and developmentally sensitive techniques should be used to elicit information useful to the court for determining competency. In their paper "Young Maltreated Children’s Competence to Take the Oath," Applied Developmental Science, Vol. 3, No. 1, 1999, Professors Lyon and Saywitz propose various strategies for the court to consider in determining whether a child is competent to testify and be placed under oath. All areas important to the court’s determination (capacity to observe, memory, differentiation of truth from falsehood, differentiating fact from fantasy, understanding of the duty to testify truthfully, etc.) can be effectively evaluated with age sensitive techniques yielding high confidence in the final determination.

27.1.3 USE OF PSYCHOLOGICAL TESTIMONY OR REPORTS REGARDING COMPETENCE
Parties to litigation (noncriminal cases) may seek a psychological evaluation of a child witness for the purpose of buttressing or attacking the witness’s credibility. The court has discretion to entertain such motions, although the Rules of Civil Procedure authorizing independent psychological evaluations do not directly apply. Rule 1-035 provides that “[w]hen the mental or physical condition . . . of a party, or of a person . . . is in controversy, the court in which the action is pending may order the party to submit to a physical or mental examination ....” Arguably, when a child witness’s competency is before the court, that subject is “in controversy.” Rule 1-035, however, is not designed to address competency, but addresses those situations when a person’s mental condition is relevant to a substantive fact at issue in the case, such as damages in personal injury litigation. Since testimonial competency is a preliminary issue of trial administration, the purpose for the rule is not directly implicated.

The court has discretion, however, to allow such an evaluation, or to order one itself, if in its discretion such information would be probative of the competency issue. New Mexico courts have not dealt with this issue directly, but in Anderson v. State, 749 P.2d 369, 371-372 (Alaska App. 1988), the court discusses the inherent authority of the trial judge to acquire information in this manner. In any case, expert testimony relating to the issue of competency can be admissible. State v. Ruiz, 2007-NMCA-014,141 N.M. 53.

27.2 METHODS OF PRESENTING CHILD TESTIMONY

27.2.1 VIDEOTAPE: CRIMINAL PROCEEDINGS
Constitution. In Maryland v. Craig, 497 U.S. 836, 856 (1990), the Supreme Court held that the confrontation clause of the federal Constitution does not guarantee criminal defendants an absolute right to a face-to-face meeting with the witness. In Craig, the defendant was completely deprived of his right to a face-to-face confrontation with the child witness as the child testified via television monitor out of the presence of the defendant. The Court stated that prior to the admission of such testimony, the trial court must find "that the child witness would be traumatized, not by the courtroom generally, but by the presence of the defendant." The Court discussed the reasoning of Coy v. Iowa, 487 U.S. 1012 (1988), which initially addressed this question for the federal bench.

Statute. §30-9-17: "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."

Rules. See Rule 10-217 (for children’s court cases) and Rule 5-504 (adult cases) for the procedure.

Case Law. New Mexico courts have discussed the principles in the following cases:

• State v. Messier, 101 N.M. 582 (Ct. App. 1984). Declaration of mistrial necessary in order to avoid double jeopardy where videotape of 11-year old alleged victim of criminal sexual penetration was inaudible at trial and child was unavailable to testify because of illness and possible emotional harm.
• State v. Vigil, 103 N.M. 583 (Ct. App. 1985). Use of videotaped deposition did not deny the defendant the right of confrontation.
• State v. Tafoya, 108 N.M. 1 (Ct. App. 1988). Videotaped depositions of victims taken while defendant was required to remain outside the room in which the testimony given was not a violation of Confrontation Clause and was consistent with §30-9-17.
• State v. Benny E., 110 N.M. 237 (Ct. App. 1990). Child defendant's confrontation rights were violated when the alleged child victim was permitted to testify at trial in judge's chambers with only counsel and judge present and the accused child watched on video monitor located in another room. The procedure was invalid because no particularized findings of special harm to victim, supported by substantial evidence, were made.
• State v. Fairweather, 116 N.M. 456 (1993). In a prosecution for sexual abuse, trial judge did not abuse discretion in allowing testimony of depositions taped outside presence of defendant and then shown to the jury. Judge had made requisite findings that the individualized harm which would otherwise result to the child victims outweighed the defendant's right to face-to-face confrontation with accusers.

27.2.2 VIDEOTAPE: CIVIL PROCEEDINGS
Rules. A properly noticed videotape deposition of a child witness can be used at trial, if the following rules are adhered to in the procedure:

• The party taking the deposition states in the notice that the testimony shall be recorded by videotape under Rule 1-030(B)(2). The notice must also state that the party taking the deposition intends to use it at trial.
• The videotaped deposition may be used in lieu of live testimony if the court upon motion so orders pursuant to Rule 1-032(A)(3)(c), (d) or (f). Admission of the deposition under paragraph (c) of the Rule requires the order be entered prior to the taking of the deposition. Paragraphs (d) and (f) do not require advance court order, but contain their own criteria for acceptance of the deposition, and the court must make findings that support the trial use of the deposition in place of in-court testimony.

Case Law. Depositions are not intended to substitute for live witnesses at trial, and are not intended to permit a deposed party to use her/his own deposition at trial. The party seeking to use the deposition instead of a live witness has the burden of showing one or more of the circumstances set forth in the rules. Niederstadt v. Ancho Rico Consolidated Mines, 88 N.M. 48 (Ct. App. 1975); Arenivas v. Continental Oil Co., 102 N.M. 106 (Ct. App. 1983); Reichert v. Atler, 117 N.M. 628 (Ct. App. 1992); Albuquerque National Bank v. Clifford, 91 N.M. 178 (1977).

See also State v. Macias, 110 N.M. 246 (Ct. App. 1990). Although this was a criminal case, the court addressed the issue of the admissibility of child's videotaped statements under Rule 11-804(B). The appellate court remanded the issue of admissibility for a competency hearing to determine if the child was unavailable for purposes of Rule 11-804(B). See new Rule 11-807, which creates a separate rule for the “catch-all” exception and where availability is no longer a factor.

The use of videotaped depositions or admission of any other type of hearsay as to the child’s statements arises when the child is unable to testify or testimony in a traditional courtroom setting would be traumatic for the child. Although the stricter requirements of the Confrontation Clause, as discussed in Crawford v. Washington, 541 U.S. 36 (2004), do not apply in civil cases, due process considerations govern the determination of the fairness of the trial procedures. The New Mexico Supreme Court has indicated that in court testimony with confrontation is preferred and if there is a sufficient basis for in court testimony not to occur, “the trial court should explore alternatives for questioning the child…”, including videotaped depositions, in-camera testimony or other methods at the discretion of the trial court. In Re Pamela A. G., 2006-NMSC-019, ¶18, 139 N.M. 459.

27.3 RULES OF EVIDENCE AND APPLICATION TO CHILD WITNESSES

27.3.1 USE OF LEADING QUESTIONS ON DIRECT EXAMINATION
Rule. Rule 11-611(C): Leading questions should not be used on the direct examination of a witness except as may be necessary to develop the witness's testimony. Ordinarily leading questions should be permitted on cross-examination. When a party calls a hostile witness, an adverse party or a witness identified with an adverse party, interrogation may be by leading questions.

The committee commentary to Rule 11-611 states that paragraph C was changed in 1976 to conform to the federal rule. The Advisory Committee's Note to Fed. R. Evid. 611(c) states:

The rule continues the traditional view that the suggestive powers of the leading question are as a general proposition undesirable. Within this tradition, however, numerous exceptions have achieved recognition: The witness who is hostile, unwilling, or biased; the child witness or the adult with communication problems…. The matter clearly falls within the area of control by the judge over the mode and order of interrogation and presentation and accordingly is phrased in words of suggestion rather than command. 56 F.R.D. 183, 275.

New Mexico appellate courts have held that leading questions are often permissible when a witness is immature, timid or frightened, although the words of a prosecutor cannot be substituted for the testimony of the witness. State v. Orona, 92 N.M. 450, 453-454 (1979). In a child sexual abuse case, where the court drew a stick figure to help the victim testify, the drawing was relevant, and the court's leading questions to the victim tended to clarify the evidence. State v. Benny E., 110 N.M. 237, 244 (Ct. App. 1990).

27.3.2 HEARSAY
Rule. Rule 11-801(C): Hearsay is “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”

The hearsay rule and its exceptions are the subject of considerable litigation when the testimony of a child is offered in legal proceedings. Analysis of the Rule and interpretations of its exceptions in the context of child testimony are voluminous and varied in the jurisprudence of New Mexico and other jurisdictions.

Some of the most common uses of the rules for introduction of child testimony are set forth below.

Statements Offered NOT to Prove the Matter Asserted. As the rule states, only if the out of court statement is offered to prove the matter asserted is it excluded. There can be relevant purposes for a statement even when not directly offered to prove the truth of the statement itself. For example, a young child’s explicit and detailed out of court statements to police or interviewers about sexual activity the child has experienced may not be directly admissible to prove that he/she actually engaged in such acts with the accused, but may be relevant and admissible for another purpose, such as to prove that the child has sophisticated sexual knowledge and familiarity with various sexual activities or adult physical/anatomical sexual phenomena that is inconsistent with her/his age. In Re Jean Marie W., 559 A.2d 625, 629 (R.I. 1989); Drumbarger v. State, 716 P.2d 6, 10 (Alaska App. 1986).

Similarly, written or drawn assertions (such as pictures or a diary, written or drawn outside of the courtroom) may be admissible to prove knowledge inconsistent with age or fear of the accused, while the specific acts depicted in the writings and drawings, if offered to show that the child and the accused engaged in such conduct, may violate the hearsay rule.

Statements for Purposes of Medical Diagnosis or Treatment. Rule 11-803(D): “Statements made for the purposes of medical diagnosis or treatment and describing medical history, or past and present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment” are not excluded even though the declarant is available as a witness.

This exception to the hearsay rule is one of the most commonly used methods of introducing into evidence a child's statement of injury, abuse, etc. A party seeking introduction of the testimony has the burden of proving that all elements of the rule are satisfied. State v. Altgilbers, 109 N.M. 453 (Ct. App. 1989) (criminal case). The proponent of the testimony must show that the physician can testify that the out-of-court statement was elicited for purposes of diagnosis or treatment, and the statement assisted in reaching such goals. See also U. S. v. Tome (II), 61 F.3d 1446 (10th Cir. 1995). In sexual abuse cases particularly, the child’s statements admitted under this rule may be the only evidence of what happened.

State ex rel. CYFD in the Matter of Esperanza M., 1998-NMCA-039, 124 N.M. 735, contains extensive discussion of this rule. Esperanza M. was thirteen years old when she reported to a school counselor that her father had sexually abused her. The child was subsequently interviewed by a CYFD social worker, the staff of the Children’s Safe House, and a medical doctor. The child repeated her allegations to the pediatrician, but the physical examination was essentially normal, with no evidence of sexual abuse. The child later was interviewed by a psychologist and again repeated allegations of sexual abuse perpetrated by her father. At the trial, neither the child nor her parents testified. The court admitted the child’s statements implicating her father through the testimony of the pediatrician and the psychologist, finding that the child made the statements to each witness under the circumstances contemplated by Rule 11-803(D).

• Pediatrician Testimony: The doctor testified on what the child said happened and who the child identified as the perpetrator. The parents argued that the statements made to the doctor shortly after the child first disclosed abuse were made in the context of an “investigation” of abuse, and were not genuine “treatment or diagnosis” statements. The court dismissed this objection, holding that it is “immaterial whether the examination was part of an investigation, so long as it was for diagnosis or treatment.”
  
  The parents also argued that the pediatrician’s testimony, including the child’s identification of her father as the perpetrator of sexual abuse, should not have been admitted because it invaded the fact finder’s function under the holding in State v. Alberico, 116 N.M. 156 (1993). Again, the court rejected any suggestion that testimony elicited through Rule 11-803(D) should be limited except as stated in the rule. The test for admissibility of “diagnosis and treatment” statements is whether the statements were “reasonably pertinent” to the physician’s diagnosis or treatment. The proponent of testimony through 11-803(D) witnesses must lay an adequate foundation that the witness indeed relied upon the statements in forming his or her opinions about the diagnosis and treatment of the patient. Examination of the record revealed that such a foundation was established and the testimony therefore was properly admitted.
• Psychologist Testimony: The parents challenged the trial court’s admission of the child’s statements to the psychologist identifying her father as the perpetrator of abuse. The psychologist testified that she did not need to know the identity of the alleged perpetrator to form her opinions or to provide treatment. Accordingly, the court should not have admitted the child’s statements implicating her father as the abuser. Absent the proper foundation – that the psychologist relied upon the statements to form a professional opinion – Rule 11-803(D) is unavailable as a method of introducing hearsay statements.
• Social Worker and School Counselor Testimony: The parents also sought reversal of the trial court’s admission of testimony elicited from the social worker and the school counselor who interviewed the child. The court reviewed each witness’s testimony and found the foundation inadequate in each situation to permit hearsay testimony to be introduced under Rule 11-803(D). The court did not rule out that such testimony may be admissible in other cases if a proper foundation under Rule 11-803(D) is laid.

These holdings in Esperanza M. are in accord with earlier Tenth Circuit decisions, which have held that statements attributing fault generally are not permitted under this exception. See Advisory Committee’s Note to Fed. R. Evid. 803(4). It may be proper, however, to allow the physician to testify who the child patient believed was the perpetrator of the injury or abuse, as the child’s statements identifying the perpetrator may be “pertinent” to the physician’s diagnosis or treatment and therefore admissible. U.S. v. Tome (II), 61 F.3d 1446, 1450 (10th Cir 1995).

In addition, statements made by a child “for the purpose of diagnosis or treatment” need not be made to a medical doctor. As one court held: “[t]hose who treat child abuse must be attentive to emotional and psychological injuries as well as physical harm. [citation omitted] We cannot conclude that therapy for sexual abuse, as an exercise in healing, differs materially from other medical treatment for the purposes of [the rule].” In the Dependency of M.P., 882 P.2d 1180, 1184 (Wash. App. Div. I 1994). The Esperanza court indicated (perhaps) its willingness to consider the applicability of Rule 11-803(D) to witnesses other than medical doctors and psychologists, stating “there is support for the broadening of this hearsay exception in child abuse cases to embrace statements identifying abusers and describing their acts because such cases involve abuse victims who talk to psychologists and social workers.” The court did not reach the issue, however, because inadequate foundation was laid for the evidence to be considered.

Excited Utterances. Rule 11-803(B): “A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition” is not excluded by the hearsay rule.

In State v. Apodaca, 80 N.M. 244 (Ct. App. 1969), a 4-year old child victim of sexual assault was crying and "looked scared" when she awakened the morning after she was allegedly sexually assaulted and made statements implicating the defendant. The court held that "the element of spontaneity [required under this exception] is not to be determined by time alone. It is sufficient for the statement to be substantially contemporaneous with the shocked condition, but not necessarily with the startling occurrence." 80 N.M. at 247.

For admissibility, the court must determine that there was some shock, startling enough to produce nervous excitement and render the utterance spontaneous and unreflecting; and that the utterance was made before there was time to contrive and misrepresent. State v. Maestas, 92 N.M. 135, 141 (Ct. App. 1978).

The holding that the timing of the statement by itself is not determinative of admissibility is of special importance in cases involving children. While the amount of time passing between the event and the statement is an important issue, no particular amount of time will render a statement inadmissible under this rule. The startled condition of the declarant and level of distress the declarant has suffered, together with all other evidence of the circumstances of the statement itself, are the determinative factors. State v. Robinson, 94 N.M. 693, 697-698 (1980); State v. Maestas, 92 N.M. 135, 140-141 (Ct. App. 1978); State v. Mares, 112 N.M. 193, 201 (Ct. App. 1991).

Prior Statement of a Witness. Rule 11-801(D)(1)(b): A prior statement by a witness is not hearsay if “[t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is … consistent with the declarant’s testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive.”

The rule further specifies that a “statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, the proponent's intention to offer the statement and the particulars of it, including the name and address of the declarant.”

Business Records Exception. Rule 11-803(F): Not excluded by the hearsay rule, even if the declarant is available, are a “memorandum, report, record or data compilation, in any form, of acts, events, conditions, opinions or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness.”

New Mexico’s mandatory reporting of child abuse statute (§32A-4-3) has resulted in hospitals, clinics, physicians, social workers, school teachers, school administrators, etc., developing business practices of recording and keeping writings that memorialize statements made alleging abuse. CYFD has formal procedures for receiving and recording reports of abuse and neglect and for creating investigative reports. If a proper foundation is laid, such materials may meet the tests for admissibility set forth in the rule. The rule, however, does not automatically imply admission of all the recorded information after the foundation is established. The hearsay exception applies to statements or information recorded by those who have a “business” duty to record/report the information. Other information contained in the business records may need to be scrutinized to determine whether it meets other exceptions to the hearsay rule, or is otherwise admissible. Hearsay within hearsay problems are common when lawyers invoke this exception. Note that the 2007 amendment to this rule allows for admission of records, in some circumstances, by certification methods, rather than the calling a custodian of the records as a witness.

"Catch All" Exception. Rule 11-807 (formerly Rule 11-803(X)): Not excluded by the hearsay rule, regardless of availability, is a “statement not specifically covered by any of the [other] exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that: (1) the statement is offered as evidence of a material fact; (2) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (3) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence.”

The rule further specifies that a "statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, the proponent's intention to offer the statement and the particulars of it, including the name and address of the declarant." 

The court in State ex rel. CYFD in the Matter of Esperanza M., 1998-NMCA-039, 124 N.M. 735, discussed the use of the catch-all hearsay exception in children’s court proceedings. The petitioner (CYFD) argued that various hearsay should be admitted under this exception, asserting that “the best interests of the child must be recognized and harmonized with the rules of evidence . . . when out-of-court statements are needed to establish that the child was sexually abused.” The court concluded that there should be no “best interests of the child” analysis where the court is considering whether particular evidence is or is not admissible under the rule. The court acknowledged its “strong tradition of protecting a child’s best interests,” but cautioned that the catch-all nature of this exception to the hearsay rule is not intended to permit admission of evidence which “almost, but not quite, fits another specific exception.” The rule “cannot be used to circumvent the strict requirements of the other hearsay exceptions . . . which are designed to promote guarantees of reliability and trustworthiness.” Id. ¶¶24-30.

In a criminal case decided in 2002, a divided New Mexico Supreme Court rejected as too narrow the view that the catch-all exception should not be used when the out-of-court statement is of a type expressly considered by other exceptions but which do not satisfy the rules for those exceptions. State v. Chris Trujillo, 2002-NMSC-5, ¶16, 131 N.M. 709, 717. In the majority’s opinion, the catch-all exception may be used to admit hearsay that otherwise bears indicia of trustworthiness equivalent to those other specific exceptions. Id.

In State v. Massengill, the Court of Appeals upheld the lower court’s decision in a criminal child abuse case to allow the admission of out-of-court statements made by a 2 1/2 year old child to a doctor and her parents. The statements to her parents were not sufficiently contemporaneous to warrant admission under the present sense impression exception but were properly admitted under the catch-all exception. 2003-NMCA-24, ¶¶10, 12, 133 N.M. 263. See Handbook §34.6.7 for a summary of the case.

The Court of Appeals affirmed the judgment of the children’s court in favor of CYFD (and in support of the amicus curiae brief filed by the National Association of Counsel for Children, or NACC) upholding admission of a child’s out-of-court statements under the residual and medical diagnosis or treatment hearsay exceptions. State ex rel. CYFD v. Frank G. and Pamela G., 2005-NMCA-026, 137 N.M. 137 (affirmed on due process grounds in the opinion described on the next page). The Court of Appeals held that the child’s hearsay statements were properly admitted through testimony by the foster mother, CYFD social worker, safe house interviewer, and program therapist under the catch-all exception to the hearsay rule. The court found that the record supported sufficient guarantees of trustworthiness and that: 1) each statement was offered as evidence of a material fact, 2) each statement was more probative on the point offered than any other reasonably obtained evidence, and 3) justice and the purpose of evidentiary rules would be served by admission of each statement. Id. ¶¶16-23. The court further held that the testimony of the program therapist, an LMSW, was properly admitted under the medical diagnosis or treatment exception, Rule 11-803(D). This testimony included identification of the defendant. The court distinguished In re Esperanza M., noting that in the case at hand the required foundation had been laid to establish that the identity of the perpetrator was “reasonably pertinent” to the therapist’s diagnosis or treatment. Id. ¶¶28-32. This expands the exception beyond medical doctors and psychiatrists, to include social workers.

The Court of Appeals held that the trial court did not need to find the child competent in order to admit her hearsay statements. 2005-NMCA-026, ¶¶24-27. The court also held that the parents’ due process rights were not violated by admission of the hearsay statements, applying the Mathews v. Eldridge balancing test and noting that the Confrontation Clause does not guarantee face to face cross-examination in civil proceedings.

In its opinion on certiorari, In the Matter of Pamela A.G., 2006-NMSC-019, 139 N.M. 459, the Supreme Court reiterated that procedural due process is a “flexible right” and the amount of due process afforded a party depends on the particular circumstances of each case. The Court restated the parents’ important constitutional rights that the law shields from unnecessary intrusion, and the government’s significant (and sometimes competing) interest in the safety of children. Balancing this tension requires that parents be given reasonable opportunities to cross-examine and confront an accusing witness. Invoking Matthews v. Eldridge, the Court summarized the analysis as an inquiry into whether the procedures used by the trial court increased the risk of erroneous deprivation of the private interest, namely, the parents’ fundamental right to maintain their relationship with the child. Id. ¶¶12-13.

The Court focused on what the parents did not do in the trial court to insure they obtained a fair trial. The parents never tried to call the child as a witness, they did not ask to question her, and did not indicate what questions either at the trial court or on appeal they would have asked. The parents sought the exclusion of the statements, but did not challenge any part of the statements themselves. They were given the opportunity to cross-examine the witnesses who repeated the child’s statements in trial, and to challenge the methods used to obtain the incriminating out-of-court statements.

Relying on Maria C., 2004-NMCA-083, ¶50, 136 N.M. 53, the Court acknowledged that cross-examination almost always enhances “the integrity of the fact-finding process,” it also recognized that there are circumstances when other procedural safeguards must supply the “scrupulous fairness” required when the State “interferes with a parent’s right to raise their children.” Pamela A.G., 2006-NMSC-019, ¶18. Examining all of the factors in the record, the Court concluded the test was met in this case because the trial judge established an adequate procedure and utilized adequate safeguards of fairness based upon the child’s age, the nature of the relationship between child and accused, and the emotional state of the child.

27.4 PRIVILEGES AND EVIDENTIARY IMMUNITIES

27.4.1 PRIVILEGES
Rule 11-509(B): “A child alleged to be delinquent or in need of supervision and a parent, guardian or custodian who allegedly neglected a child has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications, either oral or written, between the child, parent, guardian or custodian and a probation officer or a social services worker which are made during the course of a preliminary inquiry.”

This privilege has not been discussed by the New Mexico appellate courts, nor is its purpose, use and meaning clear from the text. While for parents, guardians and custodians it applies only to those who have been accused of neglect (and not abuse), and only to statements that the party intended to be “confidential,” there is little guidance in the rule itself as to when the privilege is appropriate. The rule refers to a “preliminary inquiry,” which is not defined in the Children’s Code or Children’s Court Rules in the abuse/neglect context, although preliminary inquiries are a part of delinquency proceedings (Rule 10-204). CYFD policies for investigation of neglect allegations include the procedure for informing parents of certain procedures that implicate their rights. At the outset of the investigation, CYFD is to inform the parents that i) prior to any legal proceeding, the parents’ interactions with CYFD are voluntary, ii) CYFD will work confidentially with them, except when it becomes necessary to work with law enforcement and a number of other factors as to the investigation. There is no other specific procedure for informing parents that they have a right to remain silent. There is likewise no mechanism in the proceedings for an investigating social worker to withhold “privileged” communications from disclosure if the privilege is invoked. 8.10.3.12 NMAC.

The committee commentary acknowledges that this rule is not part of the federal rules and states that its purpose is “to facilitate informal settlement of juvenile matters at the preliminary inquiry stage.” Perhaps the most accurate and effective interpretation of the rule’s purpose is to view it as an adjunct to Rule 11-408 (compromise and offers to compromise) that promotes open communications targeted toward efficient resolution of the case. Similarly, relying on Rule 11-408, the pre-hearing settlement conference, mandated by Rule 10-325(D) and §32A-4-25.1(A), is generally treated by CYFD as a forum where statements made are not admissible against a party in court, although neither the rule nor the statute create that privilege.

Rule 11-504: Physician-patient and psychotherapist-patient privilege.

Generally, statements made by persons to their physicians, therapists or other health/mental health care providers are done with the expectation of confidentiality and this privilege supports that expectation. The communications must be intended to be confidential and must be for the purpose of diagnosis and treatment. The communications can include family members if they are participating in the diagnosis and treatment. Rule 11-504(B).

There is an exception for this privilege relating to any statutory duty to report. Rule 11-504(D)(4). The duty to report child abuse or neglect is found at §32A-4-3 and extends to all persons, and delineates physicians, residents, nurses and social workers among others. In addition, §32A-4-5(A) provides for the admissibility of such reports of suspected child abuse or neglect, notwithstanding the physician-patient privilege or any similar privilege or rule. State ex rel. CYFD v. Candice Y. 2000-NMCA-035, ¶¶35-36, 128 N.M. 813 (upholding admission of mother’s counseling records and testimony related to the records as to matters about which the counselor was required to make a report of child abuse or neglect.)

27.4.2 IMMUNITY
§32A-4-11 (Use Immunity): This statute authorizes the children’s court attorney to apply for use immunity at any stage of an abuse and neglect proceeding for:

• Respondent's in-court testimony. The in-court testimony of a respondent who is granted use immunity “shall not be used against that respondent in a criminal prosecution,” although the respondent may be prosecuted for perjury. §32A-4-11(A).
• Records, documents and other physical objects produced by an immunized respondent under court order. §32A-4-11(B).
• Respondent's statements made in a court-ordered psychological evaluation or treatment program to a professional designated by CYFD in furtherance of the court order. Immunity attaches only to statements made during the course of the actual evaluation or treatment, and does not attach to statements made to CYFD employees, agents or representatives during investigation of alleged abuse or neglect. §32A-4-11(C). The statute prohibits immunity for any other information available to the CYFD-designated professional. §32A-4-11(D). Immunized statements that are in writing must be deleted before any report is released to law enforcement officers or district attorneys. §32A-4-11(E).

The children’s court attorney must request a hearing on the immunity application and give at least 48 hours notice to all parties and the district attorney for the county in which the abuse or neglect allegedly occurred. The district attorney has standing to object to the order of immunity. §32A-4-11(G). Use immunity orders cannot be entered nunc pro tunc. §32A-4-11(F).

Additionally, §32A-4-12 (Protective Orders) provides:

• At any stage of an abuse or neglect proceeding, the children’s court attorney may apply for a protective order restricting the release of immunized testimony, immunized verbal statements for the purpose of psychological evaluation or treatment, or records, documents or other physical objects produced by an immunized respondent under court order. A protective order applies to everyone, except as otherwise stated in the order. Its purpose is to allow respondents to engage in evaluation and treatment programs as ordered by the court and to ensure that their statement will remain confidential without disclosure to anyone, including law enforcement officers and district attorneys. §32A-4-12(A).
• The children's court attorney must request a hearing and give at least 48 hours notice to all parties and to the district attorney for the county in which the abuse or neglect allegedly occurred. The district attorney has standing to object to a protective order. §32A-4-12(B).
• After the hearing, the court may issue a protective order if doing so will reasonably assist in provision of diagnostic and therapeutic services to the respondent and the respondent is otherwise likely to refuse to make statements on the basis of the privilege against self-incrimination. §32A-4-12(C).

Rule 10-110: “If a person has been or may be called to testify or to produce a record, document or other object in an abuse or neglect, termination of parental rights or guardianship proceeding in the children’s court, the judge before whom the proceeding is pending may upon the written application for immunity by the children’s court attorney, issue a written order requiring the person to testify or to produce the record, document or other object notwithstanding the person’s privilege against self-incrimination.” To issue the order, the court must find that “(1) the testimony, or the record, document or other object may be necessary to the public interest; and (2) the person has refused or is likely to refuse to testify or to produce the record, document or other object on the basis of the person’s privilege against self-incrimination.” Evidence compelled under the order, or any information directly or indirectly derived from such evidence, may not be used against the person in a criminal case except as provided by Rule 11-412 of the Rules of Evidence. Rule 10-110(C).

Case Law. In State v. Olivas, 1998-NMCA-024, 124 N.M. 716, the court held that the U.S. Supreme Court analysis in Kastigar v. U.S., 406 U.S. 441 (1972), applied to criminal prosecutions of child abuse where the accused has provided testimony in companion children’s court proceedings alleging the same misconduct. Quoting earlier cases, the court stated that “[o]nce defendants have shown that they have testified under a grant of immunity, the prosecuting attorneys then ‘have the burden of showing that their evidence is not tainted [by exposure to prior immunized testimony] by establishing that they had an independent, legitimate source for the disputed evidence.’” 1998-NMCA-024, ¶6.

The issue of immunity most frequently arises when the children’s court attorney seeks an order at the custody hearing to compel respondent parents to undergo psychological evaluation. See Rule 10-306.1. The respondents, concerned that statements made during the evaluation could later be used against them in criminal proceedings, refuse to participate. The children’s court proceedings are then frustrated as information vital to determination of the respondents’ fitness to care for the child and/or their need for and amenability to treatment may be permanently unavailable to the parties and the court.

The Olivas case demonstrates that the specific language used in the order granting immunity and the timing of the order may be critical to later determinations of what evidence is subject to a Kastigar exclusion argument. The distinctions in §32A-4-11 for immunity for in-court statements, production of tangible things, and statements made to psychologists performing court-ordered evaluations and treatment are important to note. Because criminal proceedings arising from abuse and neglect allegations frequently are commenced months after the children’s court proceedings are underway, the potential impact the immunity order may have on subsequent litigation is difficult to foresee, and the actual wording of the order may be critical to the success or failure of the future prosecution.

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