2016 COA 183
Colo. Ct. App.2016Background
- In May 2015 a 12-year-old stepdaughter (J.O-E.) told a therapist that her stepfather (G.S.) touched her inappropriately; she later recanted to police. The police closed their criminal investigation.
- The Arapahoe County Department of Human Services opened a child-protection assessment, required a psychosexual evaluation and recommended a polygraph; father completed the psychosexual evaluation but initially declined the polygraph and later took a private polygraph whose results he did not provide to the department.
- The department filed a dependency and neglect petition as to the infant child (G.E.S.), alleging prospective risk based on father’s alleged sexual abuse of the stepdaughter and his lack of cooperation with the department.
- At trial the jury was presented with recorded interviews (the child’s initial disclosure and later recantation), testimony about the psychosexual evaluation and polygraph requests, and expert testimony characterizing the child’s initial outcry as credible. The jury found in favor of dependency on several statutory grounds.
- The district court admitted testimony that father refused/failed to provide a polygraph (and that he had done a psychosexual evaluation) over father’s motion in limine, but excluded any actual polygraph results. The court also admitted the child’s out-of-court statements under the child-hearsay statute after finding the child unavailable to testify.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of psychosexual evaluation and references to polygraph | Admissible as part of department’s evaluative process and relevant to safety assessment and father’s lack of cooperation | Inadmissible or unduly prejudicial; polygraph evidence is unreliable and refusal creates impermissible inference of guilt | Court of Appeals: admission was error; polygraph references were unduly prejudicial and inseparable from other evidence, requiring reversal |
| Whether implied polygraph results (by testimony about refusal/private polygraph) are admissible | Department: impeachment/assessment relevance; need to finish investigation | Father: inference that refusal or nonproduction implies guilt; polygraph evidence per se unreliable | Held: Implication that father feared/failed polygraph is tantamount to admitting results — inadmissible and prejudicial |
| Use of refusal to cooperate with voluntary evaluation as evidence of neglect | Department: refusal shows lack of cooperation and risk to child | Father: participation was voluntary; using refusal punishes exercise of right to decline and is unfairly prejudicial | Held: Error to use refusal to complete voluntary evaluative steps as evidence of neglect; places parent in untenable choice |
| Admissibility of child’s out-of-court statements without child testifying | Department: allowed under child-hearsay statute with corroboration and finding of unavailability | Father: Confrontation concerns | Held: Admission affirmed — court properly found child unavailable and statutory reliability/corroboration satisfied; Sixth Amendment confrontation right not extended to dependency/neglect proceedings |
Key Cases Cited
- People in Interest of M.M., 215 P.3d 1237 (Colo. App. 2009) (polygraph evidence and expert opinions based on polygraphs are inadmissible as unreliable)
- People v. Anderson, 637 P.2d 354 (Colo. 1981) (polygraph evidence presents serious risk of unfair prejudice and jury overreliance)
- Bloom v. People, 185 P.3d 797 (Colo. 2008) (brief references to polygraph testing do not always require reversal)
- People in Interest of D.L.R., 638 P.2d 39 (Colo. 1981) (dependency and neglect adjudication may rest on prospective harm)
- People in Interest of S.G.L., 214 P.3d 580 (Colo. App. 2009) (purpose of adjudicatory trial is to determine whether petition’s allegations support state intervention)
- People v. Diefenderfer, 784 P.2d 741 (Colo. 1989) (child’s testimony may be excused as unavailable where testifying would gravely harm mental health)
- People v. Eppens, 979 P.2d 14 (Colo. 1999) (witnesses may not vouch for another’s credibility on a particular occasion)
- People in Interest of L.B., 254 P.3d 1203 (Colo. App. 2011) (voluntary family cooperation mechanisms under Children’s Code)
- Martin v. People, 738 P.2d 789 (Colo. 1987) (assessing probative value and need for evidence under CRE 403)