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 In Colorado, the Child Hearsay Statute is designed to aid the prosecution of Sexual Assault on a Child and Child Abuse cases.

If you, or a loved one, or a friend are charged with Sexual Assault on a Child, Sex Assault on a Child – Position of Trust, Sex Assault on a Child- Pattern or Child Abuse, you will want an experienced and knowledgeable criminal defense attorney to represent you. Don’t wait. Call ATTORNEY PETER ALBANI at (303) 753-0900 to discuss your case.  ATTORNEY PETER ALBANI has successfully defended hundreds of Sex Assault charges and Child Abuse cases.

This web article looks briefly at Colorado’s Child Hearsay statute and some of the cases discussing the reach of the statute. This article is not intended to give any legal advice. The article is meant solely to foster a discussion between prospective clients and Attorney Peter B. Albani.

WHAT IS THE COLORADO CHILD HEARSAY STATUTE?

Colorado’s Child Hearsay Statute is found at Colorado Revised Statutes (“CRS”) Section 13-25-129.

The Child Hearsay Statute is a procedural rule that allows a child’s out-of-court hearsay statements to be admitted into evidence at trial.

WHAT TYPES OF CASES ARE COVERED BY THE STATUTE?

The Colorado Child Hearsay Statute is applicable in most Colorado Sex Assault prosecutions where there is a child victim, and in most Colorado Child Abuse Cases.

The Child Hearsay Statute is applicable in Colorado in Adult cases, Juvenile cases, Dependency and Neglect cases, and Civil Proceedings where a child is a victim of abuse or a witness to abuse.

WHAT DOES THE CHILD HEARSAY STATUTE ALLOW?

In a nutshell, where the Colorado Rules of Evidence would have otherwise served to block admission of a child’s out-of court statements detailing sexual and physical abuse, the Colorado Child Hearsay statute provides an avenue to allowing the child’s statements to be admitted into evidence.

This is an extremely powerful tool for prosecutors and quite often hurts a defendant charged with Sexual Assault on a Child and/or Child Abuse.

The Child Hearsay Statute specifically allows a child victim’s out-of-court statements related to unlawful sexual contact, intrusion, or penetration to be admitted at trial. Thus the following types of statements will often be allowed into evidence under the Child Hearsay Statute:

A Child’s outcry statements claiming the child suffered sexual abuse or physical abuse.

A Child’s statements made during a forensic interview with a trained child forensic interviewer.

A Child’s statements related to sex assault, sexual contact or child abuse made to a law enforcement officer.

A Child’s statements made to a parent detailing events or acts to which a child was subjected to.

WHAT PROCEDURES ARE APPLICABLE UNDER THE COLORAD CHILD HEARSAY STATUTE?

Child hearsay can be a rather complicated subject. A hearsay statement is an out-of-court statement offered in court to prove the truth of the matter asserted. Courts have long been concerned with the admission of such out-of-court hearsay statements.

The Law Favors Non-Hearsay Statements:

If a witness can come into court and simply repeat what somebody supposedly said outside of the court, the Court system can easily be manipulated by unscrupulous witnesses.  Most out-of-court statements weren’t made under oath. It is not always easy to determine if these out-of-court statements are truthful and reliable. The law therefore has a preference for non-hearsay statements.

Motion to Admit Child Hearsay Statements:

A child’s out-of-court statements are often the strongest evidence available in a Sex Assault on a Child or Child Abuse prosecution.

If the prosecution claims that a child has made a number of out-of-court statements relating to a sexual assault or to child abuse, the prosecutor can file a written motion with the Court to admit the statements at trial.

The Prosecution shall give the Defendant reasonable notice the intent to offer the statements and the particulars of the child’s out-of-court statements. The Defendant can file an objection to the Prosecutor’s motion.

The court may (but need not) hold a pre-trial hearing on whether or not to admit the child’s out-of-court statements into evidence at trial. If a hearing is held, the child may testify at the hearing. The child need not testify at the hearing if the prosecution will call the child to testify during the trail.

Statements must provide Sufficient Safeguards of Reliability.

The Prosecutor has the burden to show that “the time, content and circumstances of the out-of-court statements provide sufficient safeguards of reliability”.  

Whether or not the child’s out-of-court statements bear safeguards of reliability is determined by the Court.

Common considerations:  

A court may consider the following factors in determining whether the child’s out-of-court statements are reliable or bear safeguards of reliability:

the age and maturity of the child;

whether the child’s statements were made spontaneously;

whether the child used age-appropriate language;

whether more than one person heard the statements;

whether the child was still in pain from the abuse, or still upset about the abuse, when the statements were made;

whether the child has a bias against the defendant and a motive to lie;

whether leading questions or open-ended questions were used;

whether another event occurred after the claimed abuse that may explain why the statements were made; and

the general character of the child?

See e.g. People v. District Court of El Paso County, 776 P.2d 1083 (Colo. 1989).

Child must testify or be unavailable.

Furthermore, the child either has to testify at the proceedings or be unavailable to testify at the proceedings. If the child is unavailable, the statements must be supported by corroborative evidence.

Court’s instruction to the Jury

If the Court admits a child’s out-of-court statements, the court shall instruct the jury in the final written instructions that during the trial, the jury heard evidence repeating a child’s out-of-court statements, and that it is up to the jury to determine the weight and credit to be given the statements and that in making such determination, the jury shall consider the age and maturity of the child, the nature of the statements, and the circumstances under which the statements were made, and any other relevant factor.

Some Key Cases discussing Colorado’s Child Hearsay Statement.

Here a few of the many cases that have looked at the Colorado Child Hearsay law. The defendant should be aware that the vast majority of Colorado cases are determined in favor of the State.

People v. District Court of El Paso County, 776 P.2d 1083 (Colo. 1989). Where a child’s out-of court statements are not admissible under any recognized hearsay exception to the Colorado Rules of Evidence, the out-of-court statements may still be admitted into evidence under the Colorado Child Hearsay statute.  A trial judge may consider any number of factors in determining whether to admit a child’s statements under the statute.

Pena v. People, 173 P.3d 1107 (Colo. 2007). In order to admit a child’s out-of-court statements at a jury trial, the Court must first find that the time, content and circumstances of the contested statements provide sufficient safeguards of reliability and that there exists sufficient corroborative evidence of the charged acts for the statements of unavailable witnesses to be admitted under the Child Hearsay statute.

People v. Bowers, 801 P.2d 511 (Colo. 1990). The idea of corroborative evidence required to admit a child’s out-of-court statements is evidence which is direct or circumstantial and is independent of and supplementary to the statements that tends to confirm the acts described in the child’s statements did occur.

People v. Whitman, 205 P.3d 371 (Colo. App. 2007). The admission into evidence at trial of a child’s prior out-of-court statements does not violate the defendant’s right to confront or cross-examine a child if the child is not absent but is present to testify about the statements and is subject to cross-examination.

People v. Trujillo, 923 P.2d 277 (Colo. App. 1996). The trial judge did not err when she allowed a child’s out-of-court statements into evidence at trial where the statements were made spontaneously, were made in response to open-ended questions, and not in response to leading questions, and the child used age appropriate language to describe the acts of abuse.

People v. Underwood, 53 P.3d 765 (Colo. App. 2002). A judge’s decision to admit a child’s out of court statements into evidence at trial will not be overturned on appeal unless the judge abused his discretion.

People v. Moreno, 160 P.3d 242 (Colo. 2007). The Colorado Child Hearsay statute is unconstitutional to the extent that it would allow the admission of a child’s out-of-court testimonial statements into evidence without giving the defendant an opportunity to cross-examine the child declarant.

Attorneys Note: This web article contains the thoughts and impressions of Attorney Peter Albani. This web page does not provide any specific legal advice or create any Attorney-Client relationship. Criminal law is complicated and the law is subject to change. The article does not provide any promises or guarantees of any kind whatsoever. This article may contain inaccuracies and may become outdated. This article was provided for advertising purposes and to assist with any discussion between a perspective client and Mr. Albani. Every criminal case is unique. If you are charged with a crime, you should speak with an attorney immediately. CALL ATTORNEY PETER ALBANI at (303) 753-0900