*1 5H of a was convicted crime under enumerated showing A
section 16-11-309. further that
the inmate was also sentenced under that required. is
statute not Once inmate requirements part
meets of either
(II)(A) (B), however, Department refer
must community inmate to a facility provided by
correctional as up
17-27-106. It is to the local communi-
ty’s and facility board whether decide place
not facility. inmate at pa- absence of of a establishment date, eligibility however,
role it cannot be McKinney presently
determined whether is and, not, to referral
entitled if he there is is
nothing suggest the director will him
not refer to a community correctional
facility when eligible.7 he becomes judgment district
reversed and the case is remanded with discharge
directions to writ habeas
corpus premature.
VOLLACK, J., does participate.
The PEOPLE of the State
Colorado, Petitioner, BOWERS,
Dwight Respondent. Allen
No. 89SC43. Colorado,
Supreme Court of
En Banc.
Nov. 1990.
Rehearing Denied Dec.
correct,
suggest, by
phrase
statutes also
of the statute
so
7. The
use of
construction
and if
preceding
designation
"up to”
of the times
scope
criteria
dis-
for exercise of such
placement, that the
discretion
cretion,
director has
are issues
should not be addressed
when the
made within
as to
referrals
to be
clearly presenting
deci-
absent facts
them for
statutory
periods.
sion.
17-27-106(4)(a) (II)(A), (B). Whether
this
§
*3
Gen.,
prosecution’s case was
Woodard,
B.
1985. The
Atty.
Charles
Duane
Howe,
Gen.,
by K.B. to sev-
Deputy Atty.
Richard H. For-
made
based
man,
Gen.,
Dailey, Deputy
John Daniel
K.B. described
persons,
Sol.
other
eral
Denver,
Gen.,
Atty.
petitioner.
for
against her.
acts committed
the sexual
Hostetler,
Deputy Public
Sp.
Richard A.
trial,
At the commencement
Defender, Denver,
respondent.
court,
presence
outside
district
hearing
purpose
for the
jury, conducted a
QUINN
Opinion
Justice
delivered
admissibility
K.B.’s
determining
Court.
prosecution of-
statements.
*4
People’s petition for cer-
granted
We
under the residual
such statements
fered
deci-
appeals’
review the court of
tiorari to
803(24)
exception
created
Bowers,
519 trial, light entire of the record at the child “able to or describe relate in error substantially did not influence the language appropriate for a child of that impair verdict or the fairness of the trial. age the events or respecting facts which 596, People, King v. 785 P.2d 605 the examined.” (Colo.1990); People v. Gaffney, 769 P.2d (1987 13-90-106(l)(b)(II), 6A C.R.S. & § (Colo.1989). If, course, a Supp.1990); People Court, see District v. party a contemporaneous fails to make ob (Colo.1990). statutory 791 P.2d This jection evidentiary ruling, then the course, requirement, of that the assumes plain applicable. error standard review is physiologically capable child was appre- Plain error is limited to circum those hending perceiving the facts or events court, appellate stances in “an after about which the be child is to examined. reviewing record, say the entire can holding that the trial court erred in fair assurance error so under failing identify specific to reason for mined the fundamental fairness trial of the incompetence, appeals K.B.’s the court of itself as to serious cast doubt on the relia remarked that incompetency “[i]f [K.B.’s] bility of judgment of conviction.” Wil upon inability, rested her the time at of the (Colo. People, son v. 743 P.2d act, alleged to just impressions receive 1987). fact, may inherently her statements but, any purpose,” for aside, unreliable on the preliminary With these matters we hand, “if incompetence other question turn to the was main before us—that [K.B.’s] is, only by caused her fear inhibition in whether the trial court admit- erred in ting setting, K.B.’s courtroom her out-of-court statements into evidence under state- appeals ments nevertheless 13-25-129. The court of have been inher- Bowers, trustworthy.” held that ently the trial erred in follow- 773 P.2d first, respects: failing speci- agree three We with these observations. fy finding the reason was not A for finding, example, very young K.B. second, competent; identify in failing incompetent testify child is because of specific factors on which it its questions based the child’s reluctance to answer finding that K.B.’s reli- statements were in a formal courtroom environment does able; third, by ruling use K.B.’s necessarily impair any particularized not gestures of anatomical dolls and in describ- guarantees reliability in- that otherwise ing the against sexual acts committed her child’s hearsay here statement. See constituted corroborative evidence People, Oldsen v. 732 P.2d 1135 n. 6 act in the We described child’s statement. (Colo.1986) incompetence (finding of to tes- aspect shall address each tify automatically render a child’s does separately. issue inadmissible, as long reliability is its ensured circumstances
III. it bringing exception); within a 448, 453-54, People, our to the Lancaster Colo. We direct attention (1980) (testimonial question incompetency. In a 723-24 K.B.’s offense, prosecution incapacity very young criminal for a sexual child did not af- years age applicability exception child under ten is considered fect gestae res *9 statement).6 competent testify long as a as We to witness as child’s further rule, unnecessary appeals 5. The court of also held that trial court renders it for us to aspect appeals’ opin- failing of fact-specific address this court erred to make find- court in ion. ings guaran- respect to the "circumstantial by required tees of trustworthiness” CRE passing Wright, 6. We in that in v. note Idaho 803(24) 804(b)(5). However, hold- our -, 110 S.Ct. L.Ed.2d U.S. IIA, supra, that in Part section 13-25-129 (1990), Supreme the United States Court ad admitting constitutes exclusive basis for problem ability dressed the of a child-witness’s child victim’s statement of a sexual act jury to to the time of trial communicate when, here, against the committed as such rights context and in the of the confrontation of statement is not otherwise admissible under “[ajlthough The Court that accused. noted exception other created statute or inability might be relevant to [the child's] that, agree appeals capacity perceive. with the in to or apprehend court of child’s keeping with section the trial We thus conclude the trial court while specified why ruling precise court should have the reason have been more in its should testify. nothing found K.B. not We of record competent competency, it to on K.B.’s satisfied, however, suggests incompetent record of that the that the child was hearing incapacity the trial to re- shows that reason of some inherent in-limine impressions just court’s determination that K.B. was not ceive of facts or events. competent, and hence was unavailable as a IV. witness, was based to on K.B.’s reluctance communicate in the set- formal courtroom the trial We next consider whether ting placed. in which child was failing specific identify court erred to finding it that factors on which based its hearing, pros At the in-limine The trial K.B.’s statements were reliable. ecuting attorney very asked K.B. basic court, conclusory fashion, that ruled name, questions concerning age, and her time, content, “the and circumstances parents. identify whether she could her statements as described [the [K.B.’s] respond ques initially K.B. did not attorney] prosecuting provide sufficient tions, neg affirmatively but then nodded court of guarantees reliability." atively questions asked when were ruling appeals invalidated the trial court’s again. appearance After K.B.’s on brief because, view, findings its “the stand, attorney the prosecuting the witness proof are meet the offer of insufficient to “in to the court that the child was asserted statutorily safeguards reliabil mandated foreign to her” an environment Bowers, P.2d ity for each statement.” questions. and thus was unable to answer taking the court of at 1097. issue with acquiesced prose Defense counsel in the analysis, People argue that the appeals’ attorney’s cuting of the wit assessment the trial proof adequately supports offer ness, Although the trial as did court. ruling reliability on court’s specific court should have more trial been agree Although statements. we identifying specific on the record the the trial appeals with the court finding incompetency, for its basis specif adequately identify did not court no suggestion record contains whatever content, “time, relating to ic factors incompetent the court found K.B. due that provided circumstances” sufficient inability just impressions to an receive guarantees reliability for each of K.B.’s contrary, On the what the record fact. statements, we nonetheless conclude suggests is K.B.’s reluctance strongly proof prosecuting attorney’s offer of due to orally respond questions was sufficiently specific cure the defi was fright occasioned the child’s nervousness ruling trial reliabili ciency in the court’s by the formal courtroom environment. ty- Moreover, opportuni the trial court had the K.B., Court, e.g., People 776 P.2d ty the demeanor of see v. District to view (Colo.1989), People, 175 1089-90 we stated that Colo. Mam factors, (1971) following (competence of child-witness while not intended “an immutable set of for the question addressed to sound discretion standards court), rather determining and we no reason to be trial court that the trial have pro indicia of amorphous that the trial court would have standard of ‘sufficient lieve met,” pro- reliability’ the reliabili has been nonetheless uphold to consider and ceeded guidance if the vide some and direction on ty of child’s reliability: any lingering question had doubt about *10 possessed evidence.'" 110 S.Ct. at The issues the earlier statement 3151-52. whether trustworthiness, course, guarantees case, a particularized of eviden- raised in the instant of per rule of exclusion would not frustrate se tiary directly nature and do involve con- in not truth-seeking purpose of the Confrontation the either the feder- stitutional confrontation under Clause, would hinder States in their but also state al or constitution. ‘enlightened development in the law of own (1) the Whether statement was made the coordinator drove young- K.B. and her spontaneously; home, er a brother to foster care K.B. (2) said, whether the spontaneously statement was made “I boneys.” don’t like upset while child pain the was still or in K.B., When the coordinator asked “What abuse; alleged from the are boneys?,” stated, K.B. “I don’t like (3) the language Daddy whether put boney state- to his on me.” likely ment was to have been used a proof The offer of further showed age declarant; child the although on one occasion K.B.’s statement (4) allegation whether the was made in response was made in questioning by to response to a leading question; police officer and several others were made (5) whether either the child or the hear- in response questions by family the ther- say any against witness had bias the apist counselor, or K.B. what can used any lying; defendant motive for age-appropriate terminology considered for (6) any whether other event occurred be- very young years. her In circum- some tween time of the abuse and the time stances terminology employed the sexual of the statement which could account for young describing child a sexual statement; the contents of the offense can some lend measure of reliabili- (7) person whether more than one heard ty also, to the child’s statement. K.B. statement; times, used anatomical describing dolls in (8) general character of the child.7 the against sexual acts committed her.8 prosecuting attorney’s offer proof of We also note that the counselor’s written statements, showed that two of K.B.’s each report, along discovery with other materi- damaging of which was most to the defen- als, was made available to defense counsel dant, spontaneously were made without prior sometime to the hearing, in-limine prompting suggesting. The first state- and that defense counsel not did contest “my daddy just has one like that ment— but it’s the factual contents the child’s state- bigger and he me hurts with it”— proof. ments described the offer Fi- babysitter April was made nally, nothing prosecution’s offer of K.B. babysitter while watched the proof suggested any that K.B. had bias change diapers younger on K.B.’s against the defendant or motive for days, brother. Within the next few K.B. lying, perhaps or that some other event had spontaneous also made a statement to the might occurred that have accounted for program foster care coordinator. The K.B.’s statements. prosecuting attorney informed the trial light prosecution’s offer of
court, during the proof, offer of proof, the factual contents of which were written describing coordinator’s during had controverted the in-limine K.B.’s statement been disclosed to de- prior hearing, that, although fense counsel hear- we are satisfied in-limine ing. According proof, specif- to the offer trial court when should have identified - -, Wright, In Idaho U.S. 110 S.Ct. 8. The use of anatomical dolls as an aid in inter- 3139, 3150, (1990), viewing legedly concerning a sexual assault al- L.Ed.2d 638 the United against committed is not the child with- following Supreme States Court offered list commentator, controversy. out knowledging One while ac- factors, nonexclusive, expressly intended careful use of anatomical determining for whether child’s state- appropriate procedure many dolls seems an cases particularized guarantees ment contained abuse, reported has observed spontaneity the statement; trustworthiness: consistent procedure "appears that such a be an ad hoc repetition mental state of play therapy" variant of or no crit- "little child-declarant; use of terminolo- testing possible suggestive ical attention or gy unexpected age; of a child of similar Christiansen, Testimony effects.” Child of motive to fabricate. child's lack addition Fact, Fantasy, Witnesses: and the Influence of emphasizing that these are not factors exclu- Interviews, Pretrial 62 Wash.L.Rev. 711 n. issue, Supreme sive of Court also men- (1987). Nothing in the record before us leeway tioned that courts "have considerable suggestive indicates that the dolls were used in a appropriate factors.” their consideration fashion in the course of the interviews. *11 “time, relating content, ic factors and A. provided circumstances” that sufficient 13-25-129(l)(b)(II) express Section guarantees reliability for each of K.B.’s where, here, ly provides that as the child- proof, disclosed the offer of victim of a sexual assault is unavailable as adequate
there nonetheless was an factual witness, find, the trial court must proof support in the offer of basis hearing presence conducted outside the trial court’s determination that K.B.’s jury, that “there is corroborative evi reliability require- statements satisfied the dence subject of the act which is the 13-25-129(l)(a). ment of subsection statement.” The “corroborative [child’s] requirement evidence” thus directed V. the sexual act in the described child’s state Reliability identity is not the condition of ment and perpe not at the admissibility required by section Although 13-25-129. trator. the statute de does not requires evidence, The statute also there recently be fine corroborative we general corroborative evidence of the act described considered the sense of that term hearsay (Colo. the child in the statement. In P.2d People, Stevens reversing 1990). judgment court, of conviction and In majority Stevens a of this trial, remanding the separate opinions, acknowledged case for a new that the appeals court of held that the trial court term “corroborative evidence” means evi dence, circumstantial, in ruling erred that K.B.’s use of anatomi- whether direct or gestures during cal dolls and her sought inter- that tends to establish the fact police family proved namely, views officer and the be the sexual offense de — therapist or counselor in the satisfied corrobo- scribed child’s statement —and that requirement quantum rative-evidence statute. of corroborative evidence conclusion, reaching support In this the court of needed to the admission of a child’s appeals reasoned that use enough K.B.’s statement “must be to in gestures person ordinary prudence dolls and her constituted duce a “nonver- and communicative,” conduct intended to conscientiously bal caution to entertain a rea 801(a),and thus sonable see CRE were inadmissible belief the sexual abuse that is hearsay in subject the absence of corroborative of the child’s Bowers, Vollack, J., (joined evidence. P.2d at 1097. occurred.” at 952-953 Rovira, C.J., J.); challenging part ap- by Mullarkey, this of the court of see also decision, Lohr, J., peals’ People (special alter- concurring opinion, raise two at 957 J.). arguments. People argue joined Quinn, Stevens, however, native first attempt precise the child’s use of the dolls and the we did not to determine the gestures during scope require child’s interviews with the of the corroborative-evidence ment, were police officer and counselor nor did we delineate the various might and hence satisfied the corrobora- forms of corroborative evidence that requirement satisfy statutory requirement. of the statute. tive-evidence We did People alternatively contend even not address these matters because the hearsay, the trial court none- if considered record demonstrated that there indeed was properly considered such corroborative evidence in the theless form of ex pert testimony establishing the act de- as corroborative the two statement, in the child’s since under child-victims of the sexual crimes had un scribed 104(a) 1101(d)(1) dergone significant changes a trial court and CRE behavioral subsequent not bound the formal rules of evi- to the offenses that such determining preliminary ques- changes post-traumat dence were consistent with concerning admissibility resulting of evi- ic stress from a sexual assault. analysis purpose An dence. of the text Because of the existence of this corrobora evidence, unnecessary 13-25-129 convinces us that the tive it was for us to of section appeals properly resolved this is- consider use of whether anatomi dolls, and, here, ges- sue. cal incidental *12 taring by the child in describing sexual gesturing the dolls and her were in assault, “may supply questions corroboration of a response by police to the officer child’s pursuant to concerning and the counselor the alleged 13-25-129(l)(b)(II).” J., Vollack, assault, at 955 § and that child’s the use of question, n. 8. It is that unanswered and gesturing dolls were intended to be Stevens, directly is that before in this us no less communicative than the child’s ver- case. responses. bal The child’s of the use dolls gesturing during
and the child’s the inter- views, therefore, clearly satisfied the defi- B. hearsay. nition of delay We will not over the long People’s that claim of ana child’s use C.
tomical and the gesturing dolls child’s describing during by sexual acts interviews People’s We next consider the ar the detective and the did not counselor gument notwithstanding Hearsay constitute evidence. evidence, of the character the child’s use of 801(c) defined in CRE as “a statement oth gestur anatomical dolls and the child’s by er than made one the declarant while during the interviews satisfied the cor testifying the trial hearing, at offered in requirement of roborative-evidence subsec prove evidence to the truth of the matter 25—129(l)(b)(II). acknowledge, We 13— asserted.” A “statement” includes not by People, as contended that the Colo only an oral written but also assertion rado that Rules Evidence state a trial person, if it “nonverbal conduct evidence, by court is not bound rules by person] intended to be communica [the except respect privileges, deter 801(a). tive.” CRE mining questions preliminary concerning prosecuting proof of evidence. See CRE attorney’s admissibility offer Where, 104(a); 1101(d)(1). however, leaves no doubt that anatomi- K.B.’s use of during by Assembly cal dolls the interviews detec- the General has enacted a statu counselor, tive and tory special as well that creates a rule scheme interviews, gesturing during particular category these for a of eases constituted a form of conduct nonverbal rule is not otherwise by Evidence, that was intended the child to be com- included in the Colorado Rules statutory K.B. first municative. made use and where scheme includes a procedural protocol determining dolls while she was the de- interviewed ad evening April missibility tective on the of evidence offered under the statute, response question detective’s about of Evidence to the Colorado Rules her, placed contemplate clearly questions relating how the defendant hurt K.B. top admissibility the male doll and of evidence under doll the female offered placed vaginal statute penis of the doll on the such should be determined area, stating statutory “had one with the scheme. defendant accordance 1101(e) (Rules apply in bigger” too” that “his was and that she CRE of Evidence but there,” only pointing special statutory proceeding to extent had been hurt “down “that matters of evidence are not provided vaginal her K.B.’s second area. use procedure during govern interviews for in statutes which dolls occurred several therein.”) added). family therapist (emphasis Section 13- with the or counselor Again, 25-129(1) only health states county mental center. response request exception applies counselor’s for a therein created when to the her, K.B. is “not description happened of what the child’s out-of-court statement admissible or court put together the male and female dolls statute otherwise exception boney provides an “put said the defendant his rule which requires here,” vaginal hearsay,” an right pointing again objection to her but also admissibility hearing and sets in-limine attorney’s offer of prosecuting area. The admissibility proof clearly explicit demonstrates that K.B.’s use forth conditions of *13 respect plice’s testimony may satisfied evi- with statement offered un- be We, therefore, dence, circumstantial, es- der the statute. must look direct or which 13-25-129, participation than the in to section rather Colo- tablishes the defendant’s Evidence, controlling may rado Rules of for the the commission of the crime and be admissibility. sources, in standards of or be “from outside accomplice corroborating an- form of one 25—129(l)(b)(II)requires Subsection 13— fashion, in In similar we held other.” “corroborative evidence of that there be 322, 319, People, Neighbors v. 168 Colo. subject the act is the which [child’s] 264, (1969), that the rule re- 451 P.2d statement.” The critical issue this case an quiring the corroboration of accused’s meaning centers on the of the term “corro satisfied “other and inde- confession is borative evidence” as used the statute. evidence,” “need pendent which statutory rule of construc “It is a cardinal “to convince slight” must be sufficient but are to be construed accord tion that words jury the crime is real and that usage’ that a ing to their ‘common and imaginary.” acquired a or term has technical which meaning, by legislative particular whether presume that the General As- We must otherwise, be con definition or should knowledge legal import sembly “has according acquired meaning.” strued to its statutory it uses” in a enact- of the words 1111, 1113 People, 716 P.2d Binkley v. 971, Guenther, 740 P.2d People ment. v. 2-4-101, (Colo.1986); 1B C.R.S. see section case, (Colo.1987). In the instant how- (1980). Assembly did not the General Since ever, our construction of we need not rest term evidence” define the “corroborative solely on term evidence” “corroborative look to its com we first presumption. The committee com- this consider monly accepted meaning and then legislators directly concerned ments of the par acquired a technical or it has whether incorporated that the “corrobo- with the bill meaning. ticular requirement into the stat- rative evidence” term utory clearly show that the strong make scheme means “to To “corroborate” carry meaning same intended to provide evidence of the was strengthen,” or “to certain,” commonly accepted definition of the of,” “make more truth or to meaning this court “serving means term “corroborative” the word prior in our deci- attributed to the term Webster’s tending to corroborate.” or (1986). was before the Senate Dictionary 512 sions. When bill Third International 1983, evidence, Judiciary one of the Committee corroborative In the context of voiced a concern that committee members corroborating means evidence evidence “very imaginative” given young children can be already “supplementary to that imagination or, he did not want “an it” and that strengthen or confirm tending to testimony to convict an a child to be differently, somewhat stated “[additional person.” response to this com- innocent different character to of a evidence ment, Soash, sponsor, re- Senator Dictionary 311 bill’s point.” Black’s Law same evidence” re- to the “corroborative 1979). term ferred (5th “corroborative ed. quirement for an unavailable child-witness evidence,” commonly accepted mean- in its indepen- and stated: therefore, evidence ing, connotes a fact and supplementary to dent of and ..., having requirement there bySo that or confirm that fact. tending strengthen evidence being other corroborative some place, that would the event took evidence” has term “corroborative problem you are concerned solve the in a technical sense var- used also been making up it just of someone contexts, the technical sense ied but it, that alone won’t be saying because substantially different from is not term present They had to be enough. either meaning. People commonly accepted 964, to be some other 413, 416, or there would have Martinez, 531 P.2d 187 Colo. just that state- besides held that the evidence (1975), example, [child’s] we ment. of an accom- requiring corroboration rule
Tape Recording
Lee,
Judiciary
People v.
(Colo.1985);
Senate
Com-
180 Colo.
Hearing
mittee
Senate Bill
54th Gen-
(1973).
Assembly,
Session, January
eral
First
areWe
convinced that
the term
legislative colloquy clearly
This
indicates
“corroborative evidence” in section 13-25-
sponsor
bill’s
was of
view that
129(l)(b)(II) was intended to mean what the
term
in-
“corroborative evidence” was
clearly
is, evidence,
term
denotes —that
di
independent
to mean
tended
circumstantial,
rect
independent
*14
supplementary
to
is
that which
corrob-
supplementary
of and
to the child’s
orated.
statement and that
tends to confirm that
We are not here
with the
concerned
con-
act described
the child’s statement
necessity
stitutional
of the corroborative-
actually
By way
occurred.
example,
of
requirement.
evidence
are we con-
Nor
limitation,
not of
corroborative evidence
cerned with the
require-
wisdom of such
any
following:
include
of the
testimo
ments, although the
for such
rationale
ny
eyewitness,
from an
other than the un
readily
rule is
discernible:
child-victim,
available
whose statement
is
It is a
evidence,
matter of
for
common sense
most
offered into
that
the offense oc
ways
curred;
that
people
one of the
to deter-
best
statements of other children who
mine whether
says
present
what
someone
is were
when the act was committed
victim;
trustworthy
against
is
to see if it
corroborated
medical or
is
scientific
indicating
other evidence.
In
context
evidence
that the child
of
was sexu
assaulted;
abuse,
ally
expert opinion
child
example,
part
for
if
of the
evidence that
experienced post-traumatic
the child-victim
child’s
that
statement
is
the as-
perpetration
stress consistent with the
of
sailant tied her
a scar on
wrists or had
child;
described
abdomen,
offense
evi
physical
lower
his
and there is
dence
similar
of other
offenses committed
testimony
evidence or
to corroborate the
defendant;
by the
the defendant’s confes
statement,
child’s
which the
evidence
crime;
sion
independent
or other
fabricated,
child could not have
we are
evidence, including competent and relevant
likely
more
to believe that
what
expert opinion testimony, tending to estab
says
imag-
is true.
can
Conversely, one
lish the commission of the act
described
a situation in
ine
which a child makes a
the child’s statement.
spontaneous
which
or is oth-
statement
erwise made under
indicat-
circumstances
consequences
adopting
The
of
the alter-
reliable,
ing that
it is
but
also
proposed by
People
native
construction
undisputed
contains
inaccuracies
factual
Construing
are obvious.
subsection 13-25-
great
credibility
that the
of the child’s
so
129(l)(b)(II)
permit
as to
so
a child’s verbal
undermined.
substantially
during
assertions made
nonverbal
— U.S. -,
Wright,
Idaho v.
110
S.Ct.
course of a statement
to be used as corro-
3139, 3153-54,
(1990) (Ken
L.Ed.2d 638
borative evidence
the act described
J.,
nedy,
dissenting).
responsibility
Our
the statement would render
the child’s
apply
self-corroborating
this case is to construe and
stat
statement
and would
in a manner
the statu
thereby deprive
ute
consistent with
term “corroborative ev-
text,
tory
analysis
meaningful
for in
it is the
In
the last
idence” of
content.
ef-
fect,
statutory
proponent
text
is most reflective of
of the child’s statement
intent,
legislative
permitted
bootstrap
and it is
intent
legislative
would be
on the
polestar
statutory construc
of the
is the
assertive content
statement
order
Guenther,
E.g.,
975;
P.2d at
the act which is the
tion.
“corroborate”
sub-
Court,
People
v. District
ject
If
of the child’s statement.9
the Gen-
problem
evidentiary bootstrapping
propriately
determining
considered in
wheth-
variety
in a
In Idaho v.
er an
state-
arises
situations.
unavailable
3139, 3150-51,
-,
"particularized guarantees
Wright,
U.S.
110 S.Ct.
ment
satisfied
(1990),
purposes
L.Ed.2d 638
the United States Su-
trustworthiness”
of the Confronta-
not,
holding
problem in
it
preme Court addressed the
consider-
tion Clause.
could
ap-
corroborating
could
whether
evidence
Court stated:
description
of the
Assembly had intended such a con-
content
eral
struction,
drawing,
the ad-
it would have sanctioned
act.
inference
re-
Such
solely
missibility
the child’s statement
components,
anoth-
duced to its basic
is but
the basis of the trial court’s determina-
bootstrapping
on the
er form of
“time,
content and circum-
satisfy
in an effort to
the corro-
statement
provide sufficient
of the statement
stances
stat-
requirement
borative
regard
guarantees
reliability,”
without
effect,
proponent
of the state-
ute.
the existence of corroborative evidence.
ment relies on the truth of
part
infer a state of mind on the
sure,
might
any number
To be
one
draw
attempts to utilize the child’s
child and then
description
inferences from a child’s
the truth of
state of mind to corroborate
statement, for ex-
sexual act. The child’s
matter described in the statement.
ample, might possibly lead one to infer that
circularity implicit in that mode of
manifest
possesses
degree
of sexual
the child
*15
statutory
the
analysis is irreconcilable with
a
of that
knowledge unexpected of
ev-
requirement that there be corroborative
remains, how-
chronological age. The fact
is,
independent of
idence—that
evidence
ever,
plausibility
that the
of such an infer-
the child’s statement —of the act described
directly from the assertive
ence derives
short,
party
by co-conspirator
corroborating
a
a
evidence
the
and is
statement
In
the use of
hearsay
"particular-
during
support
party
statement's
of a
the course and
furtherance
guarantees
conspiracy.
trustworthiness” would
in deter-
ized
the
The Court held
permit
presumptively
mining
preliminary questions
of a
unrelia-
admission
of admissibili-
the
by bootstrapping on the trust-
relating
conspiracy
ble statement
ty
there
to whether
was
trial, a
other evidence at
result
worthiness of
involving the defendant and the declarant and
requirement
the
we think at odds with
declarant made the statement
whether the
hearsay evidence admitted under the Confron-
conspiracy,
may
a trial court
furtherance
trustworthy that cross-ex-
tation Clause be so
alleged co-conspirator’s
the
statement
consider
of the declarant would be of mar-
amination
important
It
to note that Federal Rule
itself.
Indeed,
utility.
although
plurality
ginal
801(d)(2)(E)
any
does not contain
of Evidence
74
in Dutton v. Evans
U.S.
[400
[91
the Court
express
requirement
evi-
of "corroborative
210,
(1970)
looked to
10. Some
held that the so-called
factor to consider
whether
knowledge"
safeguards
sexual
in
cocious
manifested
child's statement contains “sufficient
purposes
reliability”
child-victim's
statement is nonassertive
for
of subsection 13-25-
IV,
129(l)(a),
nature and thus admissible
Part
for reasons
to corroborate
see
stated in
Swan,
E.g.,
opinion
reject
statement.
text
we
child's
State
of our
notion that
(1990);
knowledge
might possibly
Wash.2d
ple proposition
justify
majori-
does not
104(a)
A
ty’s conclusion that CRE
CRE
1101(d)(1)
inapplicable
13-25-
are
to section
majority begins
analysis
its
of sec-
application
proceedings.
Nor does its
re-
tion 13-25-129’s corroborative-evidence
People’s argument
meet
under
“acknowledging]
quirement by
...
104(a)
1101(d)(1),
trial
CRE
and CRE
Rules of Evidence state that a
the Colorado
is not
the rules of evidence
bound
by the rules of
is not bound
trial court
evidence,
may
includ-
and thus
consider
evidence, except
respect
privileges,
evidence,
ing hearsay
in the determination
questions
determining preliminary
con-
“preliminary
questions concerning
...
evidence,”
admissibility
maj.
cerning the
evidence,”
104(a)
admissibility
CRE
104(a);
(citing CRE
CRE
op. at 523
(emphasis supplied).
1101(d)(1)).
reaching
its conclusion
admitting
into evidence
provide
do not
The standard
the rules of evidence
statements,
pro-
as
evidentiary standards of ad-
a child-victim’s
“controlling
13-25-129, comprises two
vided in section
missibility,”
majority
adds:
antecedents,”
“evidentiary
People
104(a),
v. Mon CRE
and that a trial court in an-
toya,
(Colo.1988): first,
753 P.2d
swering these preliminary questions was
proponent
of the hearsay state
not bound
the rules of evidence and
ments demonstrate that
the statements
could
“any
consider
other evidence” in ad-
contain
safeguards
“sufficient
of reliabili dition to the co-conspirator’s hearsay state-
ty,”
13-25-129(l)(a); and, second, that if
§
ment.
Id. at 736.
the child-victim
witness,
is unavailable as a
The majority mistakenly construes the
“there is corroborative evidence of the act
evidentiary antecedent of corroborative evi-
which is the subject
statement,”
dence in
13-25-129(l)(b)(II)
subsection
as
13-25-129(l)(b)(II).
522;
maj. op.
See
at
§
an
question
ultimate
admissibility
People,
(Colo.
Stevens v.
child-victim’s
statements. How-
1990) (plurality opinion); People v. Diefen
ever, by its
pro-
terms section 13-25-129
derfer,
(Colo.1989).
P.2d
748-51
question
vides that'the ultimate
of the ad-
Each of
evidentiary
these
antecedents to missibility of a
child-victim’s
state-
admissibility
reliability requirement
—the
ments
cannot be answered
satisfying
requirement
corroboration
—raises
reliability requirement
alone or the cor-
a “preliminary question[
concerning
...
]
requirement
Rather,
roboration
alone.
admissibility
evidence,”
104(a)
CRE
majority
recognizes, maj. op.
(emphasis supplied).
statements become admissible
The majority implicitly acknowledges
only upon
satisfaction of both
that the reliability requirement
concerns
antecedents.
“preliminary question”
admissibility.
Section 13-25-129
specify
does not
how
maj. op.
See
at 520-522. In reviewing the
trial court should determine preliminary
findings
trial court’s
concerning the relia-
questions concerning
admissibility
bility
statements,
of K.B.’s
majority
hearsay statements of
Be-
child-victims.
recognizes that
a trial court
consider a
cause determining preliminary questions of
statements,
though
even
they
admissibility is a
of evidence
“matter[]
hearsay,
are
in making the determination
provided
for in the
[that is]
statute[]
of whether
the statements are reliable.
governfs] procedure therein,”
maj. op.
at 520-522.
1101(e),
104(a)
Colorado Rules of Evidence
requirement,
The corroboration
like the'
1101(d)(1)
applicable
in determining
reliability requirement,
“evidentiary
is an
preliminary questions of admissibility in
antecedent”
admissibility
under section
proceedings.
*18
13-25-129
According-
“preliminary ques-
13-25-129 and raises a
ly,
making
a trial court in
its determination
admissibility,
tion” of
contemplated by
as
preliminary
on the
question of whether
104(a)
is,
question
CRE
of wheth-
—that
“there is corroborative evidence” is not
er “there is corroborative evidence of the
by
evidence,
bound
the rules of
including
subject
act which is the
of the statement”
evidentiary
prohibiting hearsay,
rule
must be answered before a child-victim’s
104(a);
1101(d)(1),
see CRE
CRE
may
and it
hearsay
admitted into
consider a
state-
People Montoya,
evidence.
v.
and CRE
B
nary questions
admissibility
in section
1101(e);
proceedings.
13-25-129
majority
The
also asserts
that CRE
(Colo.
Barry,
Pruett v.
696 P.2d
104(a)
1101(d)(1)
inapplicable
and CRE
1985) (“rules
apply
‘special
evidence
13-25-129(1)
only
because “[s]ection
statutory proceedings[
...
to the extent
]’
hearsay exception
states that the
therein
they
are not in
with statu-
conflict
only
out-of-
applies
created
when the child’s
”)
requirements
proceedings
such
tory
statement
is ‘not otherwise admissi-
(emphasis supplied).
by
pro-
ble
a statute or court rule which
exception
objection
an
of hear-
vides
II
requires
say,’ but also
an in-limine admis-
hearing
explicit con-
sibility
and sets forth
(Colo.
People,
531
(1989), upon
part
9A.44.120
which
because
Colorado’s
of the lack of evidence
§
corro
Stevens,
statute was based.
796 P.2d at
borative of sexual
As we
abuse.
have not
see
Comment,
Con-
(plurality opinion);
951
ed, “[sjeldom
can
of sexual
acts
abuse be
Child Victim-Witnesses:
corroborated,
physically
and usually the
frontation
Trauma, Unavailability, and Colorado’s
only evidence directly implicating the at
Hearsay Exceptions
Statements De-
tacker
is the child’s
statements.”
Abuse,
scribing
Sexual
60
U. of Colo.L. Stevens,
(plurality opinion)
Child Abuse: (K. 1982). very “would be difficult” for a child-victim 27 Oates “particularly
to describe certain sexual acts
given
they
Hearings
the terms that
use.”
B
11,
Moreover,
legis-
at hr. 14.
on S.B.
agree
I
majority’s
with the
assertion
any procedure to
lature’s decision to omit
proponent
hearsay
a
of a child-victim’s
determining prelimi-
in
guide
judge
a trial
satisfy
statements cannot
section 13-25-
admissibility strongly
nary questions of
requirement merely by
129’s corroboration
suggests that
it intended that
the trial
offering
hearsay
a
state-
104(a), would con-
judge, pursuant to CRE
for the truth of the matters assert-
ments
hearsay
a child-victim’s
statements
sider
“
notes,
majority
ed. As the
this would ren-
as revealed
‘for their
worth
meaningless
der
section 13-25-129’s cor- by
particular
circumstances of the
”
requirement.3
maj. op. at
roboration
See
729,
case,’ People Montoya, 753 P.2d
v.
525.
(Colo.1988) (quoting Bourjaily
735-36
v.
States,
171, 180, 107
483 U.S.
S.Ct.
United
However,
recognition
that a child-vic-
2775,
(1987)).
2781,
533
precocious knowledge
particularly sexual reactions—
child victim’s
of sex-
abuse —
are more
Swan,
likely
activity_”
to have been abused
ual
McCormick Evidence § at 741-42 haviors and medical evidence 1984); decrease (Cleary 801(c) 3d ed. see also proportion nonsexual behaviors. (hearsay is statement “other than one When the consists of by the testifying made declarant while at ambiguous, number of nonsexual behav- hearing, or trial offered in evidence to iors, may lack any probative the evidence asserted”); prove the truth of the matter value, probative or worth out- Sommers, may be Prudential Ins. Co. Am. v. potential weighed by preju- unfair (1961) Colo. P.2d jury dice or confusion. (out-of-court statement for some offered purpose other than proving the truth of the child When a demonstrates no sexual hearsay). behaviors, matter asserted is not signs but does evidence of ser- anxiety posttraumatic or ious dis- stress Psychologists special- and social workers order, expert testimony may still be rele- agreed child izing psychology have scenario, however, vant. In this testimo- precocious a child’s knowledge of sexual ny only to serves establish that the child anatomy, acts and sexual more so even experienced type have some of trau- posttraumatic symptoms, than stress spe- testimony matic event. Such is not strongly suggests that the child has been cific to abuse. sexual sexually abused. Litigation Child Abuse Sexual at 62-64 some of the observed While behaviors omitted). (emphasis supplied; footnotes sexually abused children are consist- Conte, professor Dr. Jon an associate at with a problems, ent number of others the School of Social Service Administration strongly more per- are associated with University Chicago, at the has stated: experience. or sonal vicarious sexual Behaviors sometimes Examples sexu- great- exhibited behaviors that have ally rarely children are abused caused specificity er sexual include abuse any event other than sexual abuse. Sex- age-inappropriate knowledge sexual animals; peers, toys, ual with behavior or anatomy, or acts play sexualization of language knowledge children, young ap- behavior in child; atypical given for a new or pearance genitalia young children’s genitals all physical trauma to the drawings, sexually play explicit with likely most be caused sexual abuse. anatomically detailed dolls. Only severely cases in rare disturbed presence in a young be- likely it children would to find such commonly sexually haviors observed behaviors in absence of actual sexual children probative abused can be contact the child and someone between Evidence is rel- behaviors abuse. else. tendency evant because it has prove that abuse Children A Look Child Sexual Abuse 25-26 occurred. behaviors Prob- (1986); associated with sexual accord Schetky, Benedek & *22 534 story relating Validating Allegations lems in Sexual necessary to concoct false Affecting Percep- 1:
Abuse. Part Factors experience implicating to a bizarre sexual Events, 26 J. of the tion and Recall State, 737 mother.”); Bodine v. the child’s Psychia- Am.Acad. of Child and Adolescent 1072, (Alaska (court App.1987) P.2d 1075 reprinted in Annual (1987), try, at 912-15 that, given age of five concluded Progress Psychiatry Child and Devel- assault, years at the time of old opment Psychiatry ”], “Child [hereinafter maturity accuracy “the of the detail in and (S. Chess, Hertzig A. Thomas & M. at 629 in- description provided her offense 1988) (“Although presumed are adolescents reliability her trinsic assurance knowledgeable and to be about erections State, Murray cited in v. statement”), 770 words, and use those such ejaculations 1131, (Alaska Ct.App.1989); P.2d 1138 3-year-old descriptions coming from Robinson, 202, 191, State v. 153 Ariz. 735 Walker, B. flag.”); wave a red C. should 801, (1987) (“Without ma- parental P.2d 812 Bonner, Kaufman, Physically & K. acts, nipulation exposure to adult sexual Sexually and Abused Child: Evaluation alleged in this neither of which even was 115, (1988); and Treatment Sgroi, 142 S. case, knowledge girls five-year-old lack Handbook Intervention Clinical experience necessary to fabricate and (1982); also Sexual Abuse 39-79 see Child graphically types describe the of sexual 112, 122, V, In re Nicole 524 71 N.Y.2d here.”); Jones, 112 alleged abuse Wash.2d 914, 19, 23, (1987) N.Y.S.2d 518 N.E.2d 918 497, (“[Child-victim] at P.2d at 500-01 772 (citing testimony therapist as corrobora- par- has described and demonstrated with it significant found tive evidence: “She ticularity gratification acts of sexual repeated Nicole her claims to various imaginative might even the most adult in a period over a of time consistent people personal experi- conceive in a vacuum of children ‘do not have manner because ... ence.”). lying at that adults do’ and thus the skill lying] for a ‘cannot be consistent [about case, In K.B.’s indicate this to several differ- period of several months possessed knowledge of sexual that K.B. ”) (brackets original). people.’ ent anatomy that three-and-a- acts and sexual states, majority one the con- As half-year-old children not have ob- could “ Judiciary raised in Com- cerns the Senate experi- personal tained ‘in a vacuum of creating the bill sec- mittee’s discussion of ” ence,’ Swan, 114 631-32, at Wash.2d “ ‘very imagina- that a tion 13-25-129 was Jones, at (quoting P.2d 112 Wash.2d at 620 ” permitted to con- tive’ should not 497, 500). watching her 772 P.2d at While Maj. op. at 524 person. an innocent vict being diaper changed, K.B. stated brother’s 11, supra note (quoting Hearings on S.B. penis had like her the defendant Hunt, 840, 1; Wash.App. see State brother’s, bigger hurts me “but it’s and he (1987) (corrobora- 847-48, repeated K.B. with it.” this against requirement protects fabricat- babysitter’s Officer When her Schroer. imagined allegations when defendant ed father hurt mother asked her where her child-victim). unable to cross-examine her, area. pointed vaginal to her K.B. However, Judiciary Committee Senate K.B. two an- presence, undressed Schroer’s Hearings aware, see made also was dolls, the man atomically placed correct hr. the available infor- S.B. man top girl with the doll on doll is that most regarding children mation penis girl vagina. More doll’s on the doll’s children, especially children young therapist Freeman’s than month later case, K.B., this young as the victim the identical presence, K.B. demonstrated “imagine” or fabricate stories of unable of anatomi- sexual act with a different set having explicit sexual activities without cally indicated correct dolls. K.B. activities, see, e.g., exposed such been his “ho- placed Schroer that the defendant O.E.P., P.2d Interest mouth, in her ney” “peed” (“A in her years hard- (Colo.1982) child of three mouth. adept type at the of reasoned reflection ly
535
All
may
used,
against
of these
K.B.,
statements
satisfied section 13-25-129’s
independent
requirement.
of the truth of the
corroboration
matters
assert,
they
to
precocious
show K.B.’s
sex
Ill
knowledge.
ual
knowledge,
This
which is a
abuse,”
symptom
Swan,
majority’s approach
“classic
construing
child
to
633,
section
620,
require-
114
at
13-25-129’s
Wash.2d
790 P.2d at
corroboration
ac
recognize
ment
V.,
probative
fails to
121,
cord Nicole
N.Y.2d at
N.Y.
of sexual
that
hearsay.
abuse
is not
In
918,
so
S.2d at
strongly
N.E.2d at
doing,
majority
unnecessary
creates
suggests
sexually
that K.B. was
abused.
limitations in
prosecutions.
sexual-abuse
precocious
knowledge,
K.B.’s
sexual
com
bined with the corroborative evidence that
First, although the majority
unwilling
opportunities
defendant had numerous
accept
to
as corroborative
a
evidence child’s
against
commit the sexual abuse
K.B. in precocious
knowledge,
willing
sexual
it is
see,
eyewitnesses,
the absence of
e.g., Ida
accept
posttrau-
corroborative evidence—
— U.S. -,
ho v. Wright,
110 S.Ct.
proba-
matic-stress evidence—that
is less
(1990),
reasonable belief” that
the sexual abuse
ple of corroborative evidence is “medical or
subject
that
was the
of K.B.'s
op.
scientific
maj.
evidence.” See
at 525.
Stevens,
statements occurred. See
796 However,
majority
unwilling
to ac-
(plurality opinion);
P.2d at 953
at
id.
957 cept well-known medical and/or scientific
(Lohr
JJ.,
Quinn,
concurring).
The Su
evidence that children are unable to fabri-
preme
of Washington
Court
and other
cate details of sexual acts or sexual anato-
have
courts that
considered this issue have my.
majority explain
Nor does the
how
held
precocious
knowledge
that
sexual
K.B.,
child,
three-and-a-half-year-old
—ob
tained from child’s
statements—
sustain,
consistently
period
could
over a
See,
constitutes corroborative evidence.
months, allegations
six
against her father
Swan,
631-33,
e.g.,
lature’s intentions section 13- COMPANY, REGO 25-129, evi- and has misconstrued what evi- dence constitute corroborative *24 McKOWN-KATY, Katy, Marcy Peter view, Contrary majority’s dence. Exchange, and Farmers Insurance judge consider K.B.’s permitting a trial Respondents. permitting the use knowledge precocious K.B.’s of sexual No. 89SC189. anatomy as corroborative acts and Colorado, Supreme Court diminish, the promote, rather than En Banc. intention to ensure that a legislature’s allegations product Nov. 1990. imagination. her experiences her and not Rehearing Denied Dec. respectfully part Accordingly, I concur in part.
and dissent to state that Justice
I am authorized joins in this concurrence and
VOLLACK
dissent. BOARD OF COLORADO EXAMINERS,
MEDICAL
Petitioner, RAEMER, D.D.S., Respondent.
W.M.
No. 90SC289.
Supreme Court Colorado. 16, 1990.
Nov.
ORDER OF COURT Suggestion of
Upon consideration
Death, Response, Reply, premises, sufficiently advised
being this cause is DIS-
IT IS ORDERED as MOOT.
MISSED