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Sexual Assault On A Child Cases Prosecutions In Colorado – Child Hearsay – 13-25-129

By Colorado Sex Crimes Criminal Defense Lawyer – Attorney – H. Michael Steinberg

Sexual Assault On Child Cases – Child Hearsay – 13-25-129 – it may come as a surprise to find out that special evidentiary laws favoring the alleged victim of sexual assault will apply to the trial of these charges.. These laws can often be game changers as witness after witness testifies as to what the alleged child victim “told them.”

Understanding The Foundations Of The Law Of Evidence – Hearsay CRE 802.

Understanding child hearsay rules is not easy. Hearsay evidence is not admissible in ANY trial unless it falls within a recognized exception. The reason for this is that hearsay – someone testifying about what another person told them – is considered inherently unreliable.

Then you turn to a statute in Colorado – Section 13-25-129, C.R.S. – enacted by the Colorado State legislature – that has created an “exception” to the hearsay rule. This exception applies to statements made by a child victim of a sexual offense.

Basically this is the rule – If a child testifies at trial, that child’s hearsay statement is admissible if the trial judge conducts a hearing and then FINDS “that the time, content, and circumstances of the statement provide sufficient safeguards of reliability.” § 13-25-129(1)(a).

Here Is The Entire Law (all ONE Runon Sentence!)

13-25-129. Statements of child victim of unlawful sexual offense against a child or of child abuse – hearsay exception

(1) An out-of-court statement made by a child, as child is defined under the statutes which are the subject of the action, describing any act of sexual contact, intrusion, or penetration, as defined in section 18-3-401, C.R.S., performed with, by, on, or in the presence of the child declarant, not otherwise admissible by a statute or court rule which provides an exception to the objection of hearsay, is admissible in evidence in any criminal, delinquency, or civil proceedings in which a child is a victim of an unlawful sexual offense, as defined in section 18-3-411 (1), C.R.S., or is a victim of incest, as defined in section 18-6-301, C.R.S., when the victim was less than fifteen years of age at the time of the commission of the offense, or in which a child is the subject of a proceeding alleging that a child is neglected or dependent under section 19-1-104 (1) (b), C.R.S., and an out-of-court statement by a child, as child is defined under the statutes which are the subject of the action, describing any act of child abuse, as defined in section 18-6-401, C.R.S., to which the child declarant was subjected or which the child declarant witnessed, not otherwise admissible by a statute or court rule which provides an exception to the objection of hearsay, is admissible in evidence in any criminal, delinquency, or civil proceedings in which a child is a victim of child abuse or the subject of a proceeding alleging that a child is neglected or dependent under section 19-1-104 (1) (b), C.R.S., and an out-of-court statement made by a person under thirteen years of age describing all or part of an offense contained in part 1 of article 3 of title 18, C.R.S., or describing an act of domestic violence as defined in section 18-6-800.3(1), C.R.S., not otherwise admissible by statute or court rule which provides an exception to the objection of hearsay is admissible in evidence in any criminal, delinquency, or civil proceeding, if:

(HMS – These Are The “Factors” Applied By A Judge Considering The Admission Of Child Hearsay)

What follows are the factors a judge MUST CONSIDER to make the determination of whether to allow into evidence child hearsay.

The trial court may consider the following factors:

(1) Whether the statement was made spontaneously;

(2) whether the statement was made while the child was still upset or in pain from the alleged abuse;

(3) whether the language of the statement was likely to have been used by a child the age of the declarant;

(4) whether the allegation was made in response to a leading question;

(5) whether either the child or the hearsay witness had any bias against the defendant or any motive for lying;

(6) whether any other event occurred between the time of the abuse and the time of the statement which could account for the contents of the statement;

(7) whether more than one person heard the statement;

and

(8) the general character of the child.

Not ALL Of the factors must be shown of course,, they are not mandatory and the failure to establish all of them does will not stop a judge from still allowing the evidence in.

As long as the child testifies at trial and is subject to cross examination (under a case called Crawford v.Washington) the child’s hearsay statements to others may be admissible.

Sexual Assault On A Child Cases Prosecutions In Colorado – Child Hearsay – 13-25-129

… How This Hearing On Child Hearsay Actually Unfolds In Court

The trial court has a great deal of discretion in making this decision and will almost never be overturned on appeal. The trial court is required however to make specific findings on which factors establish “sufficient safeguards of reliability,” before making it’s decision to admit the child’s hearsay statements. The record must show that there is an adequate factual basis to support the trial court’s determination.

The DA – well before trial – files a Motion to Admit Child Hearsay Statements. At the hearing on the motion witnesses who have heard the hearsay testify as to the conditions and the specifics that applied to their particular situation.

At times – the disclosure is described as an “outcry” statement.. This is where the child tells someone – for the first time – what she believes has happened to her.

At the end of the hearing – the defendant presents his or her objections to the admission of the statements, always arguing that they are unreliable. The DA is charged with supporting the motion and establishing for the judge that the “time, content and circumstances” of the statements provided sufficient safeguards of reliability.

Was the statement made following a nonleading question, did it meet the factors listed above? Why or why not? Were there and are there adequate factual findings after applying the on the factors in 13-25-129?

Conclusion – The Law Favors – Has Special Rules That Apply When It Comes To Child Witnesses

The belief that children “do not lie” is a dangerous proposition if you are the one targeted by them. Children – like all of us – can lie.

Colorado evidentiary rules like this one – that applies to out-of-court HEARSAY statements made by a child alleging some form of sexual contact may be admissible under 13-25-129. This law – 13-25-129 “relaxes” the otherwise gatekeeper function of keeping out hearsay. The law provides that if a child’s out of court statement isn’t otherwise admissible under the rules of evidence, a judge may admit the statements if the trial court is satisfied that the “time, content and circumstances of the statement provide certain safeguards”, AND the child either testifies or is unavailable as a witness and there is OTHER corroboration to the act which is the subject of the child’s statement.

It can be a game changer for the defense and the defense must aggressively defend against the admission of this kind of evidence.

Sexual Assault On A Child Cases Prosecutions In Colorado – Child Hearsay – 13-25-129

Denver Colorado Sex Crimes Criminal Defense Lawyer

ABOUT THE AUTHOR: H. Michael Steinberg – Email The Author [email protected] or call his office at 303-627-7777 during business hours – or call his cell if you cannot wait and need his immediate assistance – 720-227-7777.

If you are charged with A Colorado crime or you have questions about Sexual Assault on A Child, please call our office. The Law Offices of H. Michael Steinberg, in Denver, Colorado, provide criminal defense clients with effective, efficient, intelligent and strong legal advocacy. We can educate you and help you navigate the stressful and complex legal process related to your criminal defense issue.

H. Michael Steinberg, is a Denver, Colorado criminal defense lawyer with over 40 years of day to day courtroom experience – specializing only in Colorado Criminal Law along the Front Range. He will provide you with a free initial case consultation to evaluate your legal issues and to answer your questions with an honest assessment of your options. Remember, it costs NOTHING to discuss your case. So call now for an immediate free phone consultation.

Helping Clients To Make Informed Decisions In the Defense of Colorado Criminal Cases. Colorado Defense Lawyer H. Michael Steinberg provides solid criminal defenses for clients throughout the Front Range of Colorado – including the City and County courts of Adams County, Arapahoe County, City and County of Boulder, City and County of Broomfield, City and County of Denver, Douglas County, El Paso County – Colorado Springs, Gilpin County, Jefferson County, Larimer County, and Weld County,…. and all the other cities and counties of Colorado along the I-25 Corridor… on cases involving …Sexual Assault On A Child Cases Prosecutions In Colorado – Child Hearsay – 13-25-129.