N.M. Stat. § 30-9-16 (2026)

A. As a matter of substantive right, in prosecutions pursuant to the provisions of
Sections 30-9-11 through 30-9-15 NMSA 1978, evidence of the victim's past sexual
conduct, opinion evidence of the victim's past sexual conduct or of reputation for past
sexual conduct, shall not be admitted unless, and only to the extent that the court finds
that, the evidence is material to the case and that its inflammatory or prejudicial nature
does not outweigh its probative value.

    B. As a matter of substantive right, in prosecutions pursuant to the provisions of
Sections 30-9-11 through 30-9-15 NMSA 1978, evidence of a patient's psychological
history, emotional condition or diagnosis obtained by an accused psychotherapist during
the course of psychotherapy shall not be admitted unless, and only to the extent that,
the court finds that the evidence is material and relevant to the case and that its
inflammatory or prejudicial nature does not outweigh its probative value.

     C. If the evidence referred to in Subsection A or B of this section is proposed to be
offered, the defendant shall file a written motion prior to trial. The court shall hear the
pretrial motion prior to trial at an in camera hearing to determine whether the evidence
is admissible pursuant to the provisions of Subsection A or B of this section. If new
information, which the defendant proposes to offer pursuant to the provisions of
Subsection A or B of this section, is discovered prior to or during the trial, the judge shall
order an in camera hearing to determine whether the proposed evidence is admissible.
If the proposed evidence is deemed admissible, the court shall issue a written order
stating what evidence may be introduced by the defendant and stating the specific
questions to be permitted.

History: 1953 Comp., § 40A-9-26, enacted by Laws 1975, ch. 109, § 7; 1993, ch. 177,
§ 4.

                                      ANNOTATIONS

The 1993 amendment, effective July 1, 1993, substituted "30-9-11 through 30-9-15
NMSA 1978" for "2 through 6 of this act" near the beginning of Subsection A; added
present Subsection B, redesignating former Subsection B as present Subsection C; in
Subsection C, inserted "referred to in Subsection A or B of this section" in the first
sentence, inserted "or B" in the second and third sentences, and deleted "under
Subsection A of this section" from the end of the third sentence; and made stylistic
changes throughout Subsections A and C.

Victim’s past allegations against a third party. — Where the trial court excluded
evidence of the victim’s past allegations against a third party which related to the
victim’s reputation for past sexual conduct, the victim made the allegations against the
third party in the past; the circumstances of the prior incident in no way resembled the
allegations that led to the charges against the defendant; the defendant did not show
that the circumstances of the prior allegations were clearly relevant to any material
issue in the defendant’s case other than propensity; and the defendant did not show
how the prior allegations related to the defendant’s defense, the trial court properly
excluded the evidence. State v. Casillas, 2009-NMCA-034, 145 N.M. 783, 205 P.3d
830, cert. denied, 2009-NMCERT-003, 146 N.M. 603, 213 P.3d 507.

Accused’s right of confrontation denied. — Where the defendant’s sole defense in
his rape trial was that the child victim consented to sexual intercourse with him and then
fabricated an allegation of rape because her parents, who were opposed to premarital
sex because of their deeply religious convictions, had previously punished the victim for
engaging in consensual sex with someone else, the defendant was denied his
constitutional right of confrontation when the trial court prohibited the defendant from
cross-examining the victim and her parents about the prior sexual encounter and the
punishment the victim had received from her parents as a result of that encounter and
the error was not harmless beyond a reasonable doubt. State v. Stephen F., 2008-
NMSC-037, 144 N.M. 360, 188 P.3d 84, aff’g, 2007-NMCA-025, 141 N.M. 199, 152
P.3d 842.

Prior sexual abuse of a child. — To rebut the natural assumption that a young victim
of sexual abuse is sexually naive and could only have learned about it because the
victim was victimized by the defendant, the defendant may introduce the fact that the
victim had been previously sexually abused to show an alternative source of sexual
knowledge. State v. Payton, 2007-NMCA-110, 142 N.M. 385, 165 P.3d 1161, cert.
denied, 2007-NMCERT-008, 142 N.M. 434, 166 P.3d 1088.

In order to present evidence of victim's alleged prostitution, defendant had to
establish that the evidence was material and that its prejudicial effect did not outweigh
its probative value. State v. Maestas, 2005-NMCA-062, 137 N.M. 477, 112 P.3d 1134,
rev'd on other grounds, 2007-NMSC-001, 140 N.M. 836, 149 P.3d 933.

Section is not unconstitutional on its face. State v. Herrera, 1978-NMCA-048, 92
N.M. 7, 582 P.2d 384, cert. denied, 91 N.M. 751, 580 P.2d 972.

The fact that this section attempts to regulate practice and procedure in district courts in
regard to a victim's past sexual conduct does not mean that the legislation is
unconstitutional in that it violates the provisions for separation of governmental power.
State v. Herrera, 1978-NMCA-048, 92 N.M. 7, 582 P.2d 384, cert. denied, 91 N.M. 751,
580 P.2d 972.
This section was intended to encourage reporting of rapes by minimizing intrusive
inquiry into the personal affairs of the victim. State v. Romero, 1980-NMCA-011, 94
N.M. 22, 606 P.2d 1116, overruled on other grounds by State v. Johnson, 1997-NMSC-
036, 123 N.M. 640, 944 P.2d 869.

Section protects victim against unwarranted invasions of her privacy. — In
addition to its effect in insulating the jury from prejudicial material, this section serves to
protect the victim of the crime against unwarranted invasions of her privacy. State v.
Romero, 1980-NMCA-011, 94 N.M. 22, 606 P.2d 1116, overruled on other grounds by
State v. Johnson, 1997-NMSC-036, 123 N.M. 640, 944 P.2d 869.

Purpose of statute. — The statute is designed to minimize intrusive inquiry into a rape
complainant's private life. State v. Ramos, 1993-NMCA-072, 115 N.M. 718, 858 P.2d
94, cert. denied, 115 N.M. 602, 856 P.2d 250.

Section not in conflict with rules. — The procedures in this section do not conflict, but
rather are consistent, with Rule 36, N.M.R. Crim. P. (now Rule 5-603 NMRA), regarding
pretrial hearings. State v. Herrera, 1978-NMCA-048, 92 N.M. 7, 582 P.2d 384, cert.
denied, 91 N.M. 751, 580 P.2d 972.

The balancing approach to be applied in admitting evidence concerning past sexual
conduct under this section does not conflict, but rather is consistent, with Rule 403,
N.M.R. Evid. (now Rule 11-403 NMRA). State v. Herrera, 1978-NMCA-048, 92 N.M. 7,
582 P.2d 384, cert. denied, 91 N.M. 751, 580 P.2d 972.

Once a showing sufficient to raise an issue as to relevancy of past sexual conduct is
made, the balancing test of this section and of Rule 403, N.M.R. Evid. (now Rule 11-403
NMRA) is to be applied in determining admissibility. State v. Herrera, 1978-NMCA-048,
92 N.M. 7, 582 P.2d 384, cert. denied, 91 N.M. 751, 580 P.2d 972.

There is no conflict between this section and Rule 405, N.M.R. Evid. (now Rule 11-405
NMRA), regarding methods of proving character, because the balancing approach of
Rule 403, N.M.R. Evid. (now Rule 11-403 NMRA) is also applicable to evidence
admissible under Rule 405, N.M.R. Evid. State v. Herrera, 1978-NMCA-048, 92 N.M. 7,
582 P.2d 384, cert. denied, 91 N.M. 751, 580 P.2d 972.

Section is not limited to sex by consent; rather, its unlimited wording applies to all
forms of past sexual conduct, so that a prior rape is past sexual conduct within the
meaning of this section. State v. Montoya, 1978-NMCA-052, 91 N.M. 752, 580 P.2d
973, cert. denied, 91 N.M. 751, 580 P.2d 972.

Section does not protect against waiver of privilege not to disclose medical
records. — In a prosecution for criminal sexual penetration, this section did not apply to
give the victim the right to release her medical and psychotherapy records to the police
and state's attorneys and then invoke an absolute privilege against in camera inspection
by the court or subsequent disclosure to other parties. State v. Gonzales, 1996-NMCA-
026, 121 N.M. 421, 912 P.2d 297.

Discretion of trial court. — In prosecution for indecent exposure before female child
under 18, where questions asked of prosecutrix on cross-examination relating to
specific acts of sexual misconduct were allowed by the court on theory that they were
an attack upon her credibility, the permitting or limiting of extent of such questioning was
well within discretion of the trial court. State v. McKinzie, 1963-NMSC-060, 72 N.M. 23,
380 P.2d 177.

Limited psychiatric examination of victim permissible. — Insofar as a psychiatric
examination probes the past sexual behavior of the victim, it is within the terms of this
section. State v. Romero, 1980-NMCA-011, 94 N.M. 22, 606 P.2d 1116, overruled on
other grounds by State v. Johnson, 1997-NMSC-036, 123 N.M. 640, 944 P.2d 869.

Prior accusations of sexual misconduct. — In a prosecution for sexual misconduct,
the trial court did not err in denying the defendant's request to call the victim's stepfather
and the defendant's wife to testify that the victim had previously falsely accused the
stepfather of sexual misconduct. State v. Scott, 1991-NMCA-081, 113 N.M. 525, 828
P.2d 958, cert. quashed, sub nom. Gibson v. State, 113 N.M. 524, 828 P.2d 957 (1992).

Victim's past sexual conduct not admissible. — Even though evidence of a victim's
prior sexual conduct may be admissible to show bias, motive to fabricate or for other
purposes consistent with the constitutional right of confrontation, the trial court did not
err in rejecting such evidence where defendant failed to show that it was material and
relevant, and that its probative value equaled or outweighed its inflammatory nature.
State v. Johnson, 1997-NMSC-036, 123 N.M. 640, 944 P.2d 869.

Victim's past sexual conduct in itself indicates nothing concerning consent in
particular case. State v. Herrera, 1978-NMCA-048, 92 N.M. 7, 582 P.2d 384, cert.
denied, 91 N.M. 751, 580 P.2d 972; see State v. Romero, 1980-NMCA-011, 94 N.M. 22,
606 P.2d 1116, overruled on other grounds by, State v. Johnson, 1997-NMSC-036, 123
N.M. 640, 944 P.2d 869.

Victim's virginity relevant if consent at issue. — Evidence of a victim's virginity is
relevant in cases involving alleged forcible criminal sexual penetration where the
consent of the victim is at issue. State v. Singleton, 1984-NMCA-110, 102 N.M. 66, 691
P.2d 67.

Previous chastity immaterial. — Ordinarily the previous chastity of prosecuting
witness is immaterial in a statutory rape case. State v. Armijo, 1958-NMSC-108, 64
N.M. 431, 329 P.2d 785.

Probative value of evidence of victim's past sexual activity must be weighed
against its prejudicial effect, and its prejudicial effect is great. State v. Romero, 1980-
NMCA-011, 94 N.M. 22, 606 P.2d 1116, overruled on other grounds by State v.
Johnson, 1997-NMSC-036, 123 N.M. 640, 944 P.2d 869.

Confrontation of witness. — The discretion of the trial court to exclude evidence of
sexual conduct must be weighed against a criminal defendant's constitutional right to
confront witnesses. Manlove v. Sullivan, 1989-NMSC-029, 108 N.M. 471, 775 P.2d 237.

Victim's past sexual history. — Evidence of a minor's past sexual history was
properly excluded since that evidence was not relevant to the charge of contributing to
the delinquency of a minor. State v. Lucero, 1994-NMCA-129, 118 N.M. 696, 884 P.2d
1175, cert. denied, 118 N.M. 731, 885 P.2d 1325.

Past conduct negativing defendant's paternity. — Exception to the rule that previous
chastity of victim is immaterial might be where her pregnancy is shown and testimony
given that defendant was father of the child, as there the testimony of prior sexual acts
might be pertinent on rebuttal as tending to show that another might have been the
cause of such condition. State v. Armijo, 1958-NMSC-108, 64 N.M. 431, 329 P.2d 785.

Issue of penetration. — Trial court did not err in refusing to permit cross-examination
of prosecuting witness in prosecution for statutory rape concerning prior acts of
intercourse with other men, where sole reason advanced by defendant's counsel for
admissibility was on the issue of penetration, an issue about which there was no
genuine controversy. State v. Armijo, 1958-NMSC-108, 64 N.M. 431, 329 P.2d 785.

De novo review is the proper standard of review for analyzing cases implicating both
the rape shield rule and the Confrontation Clause. State v. Montoya, 2014-NMSC-032,
rev'g 2013-NMCA-076, 306 P.3d 470.

Analysis of cases implicating both the rape shield rule and the Confrontation
Clause. — When a defendant makes a claim that the rape shield law bars evidence
implicating the defendant’s confrontation rights, the district court must first identify a
theory of relevance implicating the defendant’s constitutional right to confrontation and
then weigh whether evidence elicited under that theory would be more prejudicial than
probative. State v. Montoya, 2014-NMSC-032, rev'g 2013-NMCA-076, 306 P.3d 470.

Application of rape shield rule violated Confrontation Clause. — Where defendant
and the victim, who had a sexual relationship for two years, began arguing about a
telephone call that defendant had received; during the argument, defendant indicated to
the victim that defendant wanted sex; defendant and the victim went into defendant’s
bedroom where defendant got on top of the victim and tried to remove the victim’s
clothes; the victim told the defendant "no" several times and pushed and kicked
defendant until defendant stopped making sexual advances; defendant was indicted for
kidnapping with intent to commit a sexual offense; the district court refused to allow
defendant on cross-examination to ask the victim whether the victim and defendant had
a long-standing sexual relationship and whether they had a history of engaging in sex
after an argument as "make-up sex" to resolve disputes for the purpose of showing that
defendant never intended to sexually assault the victim but was pursuing consensual
"make-up sex" as defendant and the victim had done after arguments in the past; the
victim was the sole material witness against defendant and the only witness who could
provide testimony necessary for defendant’s theory of the case; and the evidence was
relevant to defendant’s defense and would not have had a prejudicial impact on the
victim, the district court’s ruling violated defendant’s confrontation right because it
denied defendant an opportunity to present a full and fair defense. State v. Montoya,
2014-NMSC-032, rev'g 2013-NMCA-076, 306 P.3d 470.

Standard of review for cases involving the rape shield rule and the Confrontation
Clause. — There are three steps and three standards of review that relate to the
application of the rape shield rule. First, the court reviews de novo whether a defendant
has presented a theory of admissibility that implicates the defendant’s confrontation
rights. If the defendant has, the court undertakes a de novo balancing of the state’s
interest in excluding the evidence against the defendant’s constitutional rights to
determine if the district court acted within the wide scope of its discretion to limit cross-
examination. If the Confrontation Clause is not implicated or if there has been no
Confrontation Clause violation, the court examines whether the district court has abused
its discretion in its application of the rule itself. State v. Montoya, 2013-NMCA-076, rev’d
by 2014-NMSC-032.

Application of the rape shield rule did not implicate the Confrontation Clause. —
Where defendant and the victim had been arguing; defendant wanted to have sex with
the victim, but the victim refused; defendant got on top of the victim and attempted to
remove the victim’s clothing; the victim pushed and kicked defendant until defendant
stopped; defendant did not force the victim to have sex; defendant was charged with
kidnapping and attempt to commit criminal sexual penetration; to show that defendant
did not have specific intent to commit the crimes, defendant sought to introduce
evidence of the sexual history of the victim and defendant to show that the defendant’s
intent and the victim’s belief was that defendant was trying to have sex to "make-up"
just as they had done in the past; the district court precluded defendant from inquiring
into the party’s sexual history; at trial, the victim testified that defendant and the victim
had been friends for two years, the victim believed that defendant would not penetrate
the victim unless the victim consented, and the victim perceived defendant’s actions as
an attempt to obtain the victim’s consent to have sex; defendant claimed that
defendant’s confrontation rights had been violated because defendant was unable to
challenge an opposing version of the facts, the district court’s exclusion of the evidence
did not implicate or violate the Confrontation Clause, because defendant sought not to
confront the victim, but to use the victim’s testimony as evidence unrelated to the truth
or accuracy of the victim’s testimony and the district court did not abuse its discretion in
excluding of evidence of the history of victim’s and defendant’s sexual relationship.
State v. Montoya, 2013-NMCA-076, rev’d by 2014-NMSC-032.

Prior acts with defendant. — Admission into evidence of prior sexual acts between
defendant and prosecuting witness similar to those charged in prosecution for indecent
handling and touching of girl under age of 16 was not an abuse of trial court's discretion
as matter of law. State v. Minns, 1969-NMCA-035, 80 N.M. 269, 454 P.2d 355, cert.
denied, 80 N.M. 234, 453 P.2d 597.

Trial court did not err in allowing a child-victim to testify about his sexual conduct with
defendant while in California and before moving to New Mexico, where the California
episodes were relevant to the episodes in New Mexico. State v. Gillette, 1985-NMCA-
037, 102 N.M. 695, 699 P.2d 626.

Impeachment evidence did not violate rape shield statute. — Where defendant was
charged with kidnapping in the first degree, and where, at trial, defendant sought to elicit
testimony from the complaining witness about her delay in reporting a sexual assault
that allegedly occurred during the kidnapping, and also attempted to impeach her
credibility by asking about her failure to disclose to law enforcement and medical
personnel her ongoing, consensual sexual relationship with defendant, and where the
state objected on relevancy grounds, the district court abused its discretion in limiting
cross-examination of the complaining witness under the rape shield statute, because
defense counsel’s questions were not about the witness’s sexual conduct or reputation
for past sexual conduct, the cross-examination was designed to impeach the witness’s
credibility for truthfulness, not to establish her propensity to have consensual sex with
him or for some other purpose generally prohibited by the rape shield statute.
Moreover, the error was not harmless, because given the importance of the complaining
witness’s credibility to the state’s case, defendant was prejudiced by the district court’s
ruling. State v. Salazar, 2023-NMCA-026.

Evidence of past sexual encounter of victim and third party. — Trial court acted
within its discretion in suppressing evidence of a past sexual encounter of the victim and
a third party during which the victim allegedly affixed the ropes found on the bed to
restrain the third party in the course of consensual sexual activity, where such evidence
was irrelevant to defendant's culpability for the crimes charged, advanced no legitimate
defense, excuse, or justification for the crimes charged, and were likely to inject false
issues and confuse the jury. State v. Swafford, 1989-NMCA-069, 109 N.M. 132, 782
P.2d 385, cert. denied, 109 N.M. 54, 781 P.2d 782.

Testimony offered for fabrication defense. — Testimony that the prosecutrix made
up stories of rape and abduction in the past that resembled the facts alleged in the
case, that prosecutrix had once recanted such a story, and that prosecutrix was the sort
of person who would willingly see an innocent person put in jail, was not evidence of
sexual conduct precluded by the Rape Shield Law but rather went to the prosecutrix's
proclivity for truthfulness and was relevant both to impeach the prosecutrix's credibility
and as direct evidence in the petitioner's fabrication defense. The testimony was closely
enough related to sexual conduct to be barred by this section, but the court's discretion
to exclude such evidence must be weighed against a defendant's constitutional right to
confront witnesses. Manlove v. Tansy, 981 F.2d 473 (10th Cir. 1992).

Law reviews. — For article, "Survey of New Mexico Law, 1979-80: Evidence," see 11
N.M.L. Rev. 159 (1981).
For annual survey of New Mexico law relating to criminal procedure, see 12 N.M.L. Rev.
271 (1982).

For note, "Striking the Right Balance in New Mexico's Rape Shield Law - State v.
Johnson," see 28 N.M.L. Rev. 611 (1998).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 50 Am. Jur. 2d Lewdness, Indecency
and Obscenity § 34 et seq.; 65 Am. Jur. 2d Rape §§ 82 to 87; 70A Am. Jur. 2d Sodomy
§§ 54 to 57.

Evidence of complaint by victim of rape who is not a witness, 157 A.L.R. 1359.

Validity and construction of constitution on statute authorizing exclusion of public in sex
offense cases, 39 A.L.R.3d 852.

Modern status of admissibility, in forcible rape prosecution, of complainant's prior sexual
acts, 94 A.L.R.3d 257.

Modern status of admissibility, in forcible rape prosecution, of complainant's general
reputation for unchastity, 95 A.L.R.3d 1181.

Admissibility of evidence of character or reputation of party in civil action for sexual
assault on issues other than impeachment, 100 A.L.R.3d 569.

Constitutionality of "rape shield" statute restricting use of evidence of victim's sexual
experiences, 1 A.L.R.4th 283.

Constitutionality, with respect to accused's rights to information or confrontation, of
statute according confidentiality to sex crime victim's communications to sexual
counselor, 43 A.L.R.4th 395.

Impeachment or cross-examination of prosecuting witness in sexual offense trial by
showing that prosecuting witness threatened to make similar charges against other
persons, 71 A.L.R.4th 448.

Impeachment or cross-examination of prosecuting witness in sexual offense trial by
showing that similar charges were made against other persons, 71 A.L.R.4th 469.

Admissibility in prosecution for sex offense of evidence of victim's sexual activity after
the offense, 81 A.L.R.4th 1076.

Admissibility of evidence that juvenile prosecuting witness in sex offense case had prior
sexual experience for purposes of showing alternative source of child's ability to
describe sex acts, 83 A.L.R.4th 685.

75 C.J.S. Rape §§ 63; 81 C.J.S. Sodomy § 10.
30-9-17. Videotaped depositions of alleged victims who are under
sixteen years of age; procedure; use in lieu of direct testimony.
    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.

                                     ANNOTATIONS

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.