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F I S C A L I M P A C T R E P O R T

SPONSOR Lujan, B.

ORIGINAL DATE

LAST UPDATED

1/24/08

2/8/08 HB 337/aHCPAC/aHJC

SHORT TITLE Sex Offense Victim Polygraph

SB

ANALYST Peery-Galon

REVENUE (dollars in thousands)

Estimated Revenue

Recurring

or Non-Rec

Fund

Affected

FY08

FY09

FY10

$0.1

$0.1 Recurring Federal Fund

(Parenthesis ( ) Indicate Revenue Decreases)

SOURCES OF INFORMATION

LFC Files

Responses Received From

Administrative Office of the Courts (AOC)

Children, Youth and Families Department (CYFD)

Administrative Offices of the District Attorneys (AODA)

Public Defender Department (PDD)

New Mexico Sentencing Commission (NMSC)

No Response Received From

Department of Public Safety

SUMMARY

Synopsis of HJC Amendment

The House Judiciary Committee amendment to House Bill 337 strikes the House Consumer and

Public Affairs Committee amendment.

Synopsis of HCPAC Amendment

The House Consumer and Public Affairs Committee amendment to House Bill 337 on page 1,

line 21, strikes “ask or".

Synopsis of Original Bill

House Bill 337 adds a new section to Section 30-9 NMSA 1978 stating that a law enforcement

House Bill 337/aHCPAC/aHJC – Page

2

officer, prosecuting attorney or other government official is not to ask or require an adult, youth

or childe victim of sexual offense to submit to a polygraph examination or other truth-telling

device as a condition for proceeding with the investigation, charging or prosecution of the

offense. The victim’s refusal to submit to the polygraph examination or other truth-telling

device is not to prevent the investigation, charging or prosecution of the offense.

FISCAL IMPLICATIONS

AODA states the proposed legislation is necessary to comply with federal requirements to be

eligible for the Violence Against Women Act (VAWA) grant. New Mexico currently receives

around $3 million in federal funding from the Violence Against Women Act grant. AODA states

failure to make these changes will potentially result in loss of federal funding, thus drastically

reducing services to victims of both domestic violence and sexual offenses.

SIGNIFICANT ISSUES

AODA states it previously recommended taking out the words “ask or" from page 1, line 21.

This recommendation was adopted by the House Consumer and Public Affairs Committee.

AODA reports after checking with the federal grant administrators at the Department of Justice it

was discovered that by making this change to the proposed legislation they would not consider

the language to be in compliance with federal requirements to be eligible for the Violence

Against Women Act (VAWA) grant. New Mexico currently receives around $3 million in

VAWA monies. AODA states failure to make these changes will potentially result in loss of

federal funding which would drastically reduce services to victims of both domestic violence and

sexual offenses. AODA notes the language as amended by the House Judiciary Committee is the

language necessary in order for New Mexico to remain eligible for the VAWA grant.

PDD states the House Consumer and Public Affairs Committee amendment was a good ideal,

and the House Judiciary Committee amendment restoring the proposed legislation to its original

form raises issues.

AODA states the House Consumer and Public Affairs Committee amendment to House Bill 337

will still prohibit sex offense victims form being required to submit to a polygraph to comply

with federal requirements, but leaves the flexibility necessary to be able to offer victims the

option of taking a polygraph in those cases where a defendant has passed a polygraph. AODA

reports this is significant and important due to New Mexico being the only jurisdiction in the

United States where polygraphs are admissible.

AOC states in regards to the House Consumer and Public Affairs Committee amendment to

House Bill 337 that presumably, conflicting polygraphs between defendant and victim would

enable a prosecutor to continue the prosecution of the offense and would require judicial

resources to be expended.

CYFD reports sexual offenses are widely considered to be underreported, in part due to the

perceptions on the part of the victim that they will not be believed. Requiring a polygraph or

other electronic test of a victim simply support those perceptions, particularly since polygraphs

and other electronic devices for determining an individual’s truthfulness are not considered

admissible evidence in a court of law. CYFD states the proposed legislation is intended to

encourage victims to come forward by removing the possibility of an increased burden of

evidence not born by victims of other crimes.

House Bill 337/aHCPAC/aHJC – Page

3

CYFD reports that the New Mexico Children’s Code requires the department to conduct civil

investigations when there is a “reasonable suspicion" of child sexual abuse, and doe not require

the alleged victim to submit to a polygraph examination or other truth-telling device as a

condition of investigation. CYFD notes the department does not have the authority to criminally

charge or prosecute, but does use civil proceedings to provide protection to the child victim and

remedial services to the family.

AODA states that it has no knowledge of any law enforcement agency or prosecutors office in

New Mexico that requires victims of sexual offenses to submit to a polygraph exam as a

prerequisite to proceed with the investigation, charging or prosecution of a case.

AODA states it believes the proposed legislation as worded would prevent a prosecutor from

even offering a victim of a sex offense the option of taking a polygraph. AODA reports this is a

significant issue in New Mexico as it is the only jurisdiction in the United States that allows

polygraph results to be introduced into evidence at trial. AODA states if a defendant in a sexual

offense has taken and passed a polygraph the prosecutor need to have the ability to offer the

victim the option of taking a polygraph to rebut the defendant’s polygraph results at trial.

AODA reports to ban polygraphs entirely in these types of cases in New Mexico would result in

tying the prosecutor’s hands by not being able to respond in those circumstances where the

defendant has passed a polygraph potentially resulting in more cases being dismissed and fewer

convictions.

PDD states that polygraphs are admissible in trial in New Mexico and references Lee v.

Martinez, 2004-NMSC-027, 136 N.M. 166, 96 P. 3d 291. PDD notes no other alleged victim or

alleged perpetrator is statutorily precluded from polygraphs, and this could possible raise equal

protection problems.

NMSC reports at least several other states (California, Colorado, Connecticut, Illinois, Iowa,

Oregon and Texas) have passed laws prohibiting law enforcement from requiring alleged victims

of sexual offense to submit to a polygraph examination. NMSC also notes the Violence Against

Women Act of 2005 prohibits law enforcement officers from asking or requiring a victim of an

alleged sex offense to submit to a polygraph examination as a condition for proceeding with the

investigation of such an offense.

ALTERNATIVES

AODA recommends taking out the words “ask or" from page 1, line 21. AODA notes this

would allow prosecutors the ability to offer victims the option of taking a polygraph in those

cases where a defendant on a sex offense has passed a polygraph.

RPG/mt