CDAC



HEARSAY, CONFRONTATION, AND CLOSED-CIRCUIT TV TESTIMONYPeople v. Phillips, 2012 COA 176 (Colo.App. 2012)Certain statements were made by the victim and his young sibling concerning child abuse that resulted in the starvation death of the victim. These statements made to individuals at the school, a therapist, and police were found to be admissible as either non-hearsay or an exception to hearsay and not in violation of the Confrontation Clause.General analysis:Is it hearsayIs it an out-of-court statement sought to be admitted for the truth of the matter?Is it not hearsay because of an exclusion in 801(d) – prior statements of the testifying witness or admissions by a party opponent?Is there an exception in 803, 804, 807 or statutes?Does it violate the Confrontation ClauseIs it offered by the prosecution in a criminal case?Is there or has there been an opportunity to cross-examine the declarant?Is it TESTIMONIAL?PRIMARY PURPOSE: It is testimonial if the statement was made for purpose of future prosecution. It is not admissible.It is not testimonial if the statement was made for an emergency purpose. It is admissible if it also meets the hearsay analysis.OBJECTIVE INQUIRESCircumstances of the statementStatements and actions of the parties to the statementIs it NON-TESTIMONIALProsecution must produce witness or show unavailability ANDHearsay statement must bear sufficient indicia of reliability. People v. Dement, 661 P.2d 675 (Colo. 1983); Ohio v. Roberts, 448 U.S. 56 (1980).The Court of Appeals utilizing the above analysis found the following:RELIABILITY ANALYSIS UNDER THE CHILD HEARSAY STATUTE – 13-25-129The reliability analysis in the statute requires that the trial court hold a hearing to determine (1) that the time, content, and circumstances of the statement provide sufficient safeguards of reliability; and (2) the child either testifies, or is unavailable and there is corroboration of the act. (The statute appears to adopt a CRE 807 and Roberts analysis). The Colorado Supreme Court provided a non-exclusive list of factors to help determine if the statement is reliable. People v. District Court, 776 P.2d 1083 (Colo. 1989). The eight factors the courts used was (1) spontaneity; (2) made while emotionally or physically upset from the abuse; (3) whether language was age appropriate; (4) whether leading questions were used; (5) whether bias or motive of the child or witness; (6) events occurring between abuse and statement; (7) whether more than one person heard the statement, and (8) the general character of the child. If the out-of-court statements are admissible under the hearsay rules, the statute does not apply.Statements to school personnel and police officers on welfare check: The Court found that certain statements made by the victim were either not hearsay, because not for its truth, or then existing conditions as an exception to the hearsay rule. The Court found that these statements were not testimonial because the statements were not made for the primary purpose of future prosecution, but rather for the welfare and decision on what steps needed to be taken to protect the child.Statements by other child to therapist and to police detective. The Court found that although hearsay, the statements met the child hearsay statute conditions and, therefore, were admissible. Because the child testified at trial and could be cross-examined concerning his statements, there was no confrontation issue.Voicemail involving multiple levels of hearsay analysis. A voicemail from Berry, the mother-figure in the household, and the defendant that reported a statement made by the victim to another child to Berry to the defendant. The statement included a request for something to drink coupled with a threat to kill Berry and the defendant. The statement from the victim to the other child was found not to be hearsay because there is no truth in an imperative statement. The statement from the other child to Berry was found to not be hearsay because it was admitted for the state of the mind of Berry. The statement between Berry and the defendant was found to not be hearsay because it was a statement by a coconspirator and, therefore, an admission by a party-opponent. Statements were non-testimonial.CLOSED CIRCUIT TELEVISION AND CONFRONTATION. On motion of the prosecutor under the authority of 16-10-402, another child who had been present in the home was permitted to testify from the judge’s chamber using closed circuit television. Present in chambers was the child witness, one of the child’s family members, defense counsel, and the prosecutor, The defendant had two way communication with the defense counsel during the child’s testimony. The trial court instructed the jury that the process was being used because of the young age of the witness and the possibility that the courtroom might be intimidating and cautioned the jury not to be swayed or influenced because of the procedure.The Appellate Court cited Maryland v. Craig, 497 U.S. 836 (1990) as establishing a three-prong test for procedures protecting child witnesses where the trial court must findThe procedure is necessary to protect the child witness’s welfare;The child witness would be traumatized specifically by the defendant’s presence;The child witness would suffer more than de minimis distress in the defendant’s presenceThe Appellate Court noted that the procedure was codified in 16-10-402. Noting that an inferior court is bound by the United States interpretation of the Confrontation Clause, the defendant’s argument that Crawford v. Washington overruled Craig was rejected. Further, the Court cited Compan v. People, 121 P.3d 876 (Colo. 2005) as the basis for rejecting a Colorado face-to-face argument.DE 10-26-12 ................
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