18-3-413. Video tape depositions - children - victims of sexual offenses.

Statute text

(1) When a defendant has been charged with an unlawful sexual offense, as defined in section 18-3-411 (1), or incest, as defined in section 18-6-301, and when the victim at the time of the commission of the act is a child less than fifteen years of age, the prosecution may apply to the court for an order that a deposition be taken of the victim's testimony and that the deposition be recorded and preserved on video tape.

(2) The prosecution shall apply for the order in writing at least three days prior to the taking of the deposition. The defendant shall receive reasonable notice of the taking of the deposition.

(3) Upon timely receipt of the application, the court shall make a preliminary finding regarding whether, at the time of trial, the victim is likely to be medically unavailable or otherwise unavailable within the meaning of rule 804 (a) of the Colorado rules of evidence. Such finding shall be based on, but not be limited to, recommendations from the child's therapist or any other person having direct contact with the child, whose recommendations are based on specific behavioral indicators exhibited by the child. If the court so finds, it shall order that the deposition be taken, pursuant to rule 15 (d) of the Colorado rules of criminal procedure, and preserved on video tape. The prosecution shall transmit the video tape to the clerk of the court in which the action is pending.

(4) If at the time of trial the court finds that further testimony would cause the victim emotional trauma so that the victim is medically unavailable or otherwise unavailable within the meaning of rule 804 (a) of the Colorado rules of evidence, the court may admit the video tape of the victim's deposition as former testimony under rule 804 (b)(1) of the Colorado rules of evidence.

(5) Nothing in this section shall prevent the admission into evidence of any videotaped statements of children which would qualify for admission pursuant to section 13-25-129, C.R.S., or any other statute or rule of evidence.

History

Source: L. 83: Entire section added, p. 694, 4, effective June 15. L. 91: (5) added, p. 406, 12, effective June 6. L. 2003: (1) amended, p. 974, 6, effective April 17.

Annotations

Cross references: For provisions concerning video tape depositions of victims of child abuse that are similar to the provisions of this section, see 18-6-401.3.

Annotations

 

ANNOTATION

Annotations

Law reviews. For article, "The Child Sex Abuse Case in the Courtroom", see 15 Colo. Law. 807 (1986). For comment, "Confrontation of Child Victim-Witnesses: Trauma, Unavailability, and Colorado's Hearsay Exceptions for Statements Describing Sexual Abuse", see 60 Colo. L. Rev. 659 (1989). For article, "Children as Witnesses", see 31 Colo. Law. 15 (Oct. 2002).

Constitutionality. Implementation of this statute in a manner which preserves other aspects of the right to confrontation is not violative of the defendant's constitutional rights even though witness does not look directly upon the defendant or testify in the defendant's direct physical presence. People v. Thomas, 770 P.2d 1324 (Colo. App. 1988), rev'd on other grounds, 803 P.2d 144 (Colo. 1990).

As subsection (5), enacted in 1991, did not apply to offenses committed before June 6, 1991, this subsection was not applicable to offenses committed between June 1, 1989, and April 10, 1990. People v. Carter, 919 P.2d 862 (Colo. App. 1996).

Medical unavailability includes a situation in which testifying in front of the defendant would cause the child substantial and long term emotional or psychological harm. Thomas v. People, 803 P.2d 144 (Colo. 1990); People v. Newbrough, 803 P.2d 155 (Colo. 1990).

Specific findings required. Testimony about the likely impact of the child's age and emotional inability to testify must be related to the particular child witness. The mere unwillingness, nervousness, excitement, or reluctance to testify are not sufficient to render the child medically unavailable. People v. Thomas, 770 P.2d 1324 (Colo. App. 1988).

Children's videotaped depositions were admitted at sexual abuse trial where evidence established that both victims were medically unavailable and would be severely traumatized by the defendant's presence during their testimony. Thomas v. Guenther, 754 F. Supp. 833 (D. Colo. 1990), aff'd, 962 F.2d 1477 (10th Cir. 1992).

This section governs all videotaped statements obtained from child sexual abuse victims. People v. Newbrough, 803 P.2d 155 (Colo. 1990).