New Colorado hearsay exception leads to sexual assault conviction.
The Fifth Amendment to the Constitution generally requires witnesses to testify in person at a sexual assault or any other sort of criminal trial. The provision is important because it allows defendants to confront their accusers in court and have the chance to cross-examine them. Out-of-court testimony is called “hearsay” and is mostly kept out of court.
However, there are exceptions to the hearsay rule. A new exception in Colorado allows prosecutors to show the jury a video of an interview with an alleged victim of sexual assault if the accuser is developmentally disabled. In those cases, the accuser will not testify in person or be available for questioning by the defense.
Under the new statute, developmentally disabled adults will be interviewed by a trained professional. A tape of the interview is then shown to the judge out of the jury’s view. If the judge decides that the testimony is reliable and consistent with other evidence presented by the prosecution, the tape will be allowed at trial.
One justification for the new hearsay exception is that mentally disabled people may not clearly remember the details of an incident months after it happened. That was not the case in the recent conviction of a Denver man for sexual assault. The accuser in that case gave detailed testimony in her taped interview. It appears that the judge allowed the hearsay testimony for other reasons. The case was the first in Colorado to involve the new exception. It remains to be seen how criminal courts will apply it in the future.
Source: The Denver Post, “Hearsay evidence gets first Colorado trial in Down victim’s rape case,” Jessica Fender, Nov. 20, 2012
The Law Center PC