Office of Sen.

Mike Johnston
Colorado General Assembly | 200 E. Colfax Avenue | Denver, CO 80203 | 303.866.4864

FACT SHEET MEMORANDUM

HB 12-1085 Hearsay Exception for Developmentally Disabled Sen. Carroll, Sen. Hudak & Rep. Fields Staff Name: Kayla Smith What the Bill Does: Colorado Rule of Evidence 802 provides that hearsay is generally inadmissible as evidence during a trial, hearing, or other court proceeding. Any out-of-court statement offered to prove the truth of the matter asserted constitutes hearsay, with the exception of some statements made by a defendant. The ban on hearsay stems from a criminal defendants Sixth Amendment right to confront witnesses testifying against them, a right which generally mandates the presentation of evidence through live testimony and the opportunity to cross-examine witnesses.1 Despite the general ban on hearsay, there are several exceptions. The purpose of HB 12-1085 is to create another exception for statements made by a person with developmental disabilities. Developmental disability is defined as a disability that is manifested before the person reaches twentytwo years of age, that constitutes a substantial disability to the affected individual, and that is attributable to mental retardation or related conditions which include cerebral palsy, epilepsy, autism, or other neurological conditions when those conditions result in impairment of general intellectual functioning or adaptive behavior similar to that of a person with mental retardation.2 The bill provides four scenarios in which statements made by a person with a developmental disability will be admissible: (1) In any criminal or delinquency proceeding in which the disabled person is an alleged victim; (2) Any out-of-court statement in which the disabled person describes the commission of certain sexual crimes which were allegedly performed with, by, on or in the presence of the disabled person will be admissible in any criminal, civil, or delinquency proceeding; (3) Any out-of-court statement in which the disabled person describes an act of child abuse when the disabled person either witnessed or was the victim of the alleged abuse will be admissible in any criminal, delinquency, or civil proceeding in which a child is alleged to be a victim of abuse or neglect; (4) Any out-of-court statement in which the disabled person describes a homicide or related crime of violence, or an act of domestic violence will be admissible in any criminal, delinquency, or civil proceeding. Beyond fitting into one of the above categories, the bill imposes additional requirements as a threshold matter for admissibility of the hearsay evidence. The exception can only be used if the court finds in a hearing conducted outside of the presence of the jury that the time, content, and circumstances of the
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Stephen Hess & Sheila Hyatt, Rule 802 Hearsay Rule, 22 Colo. Prac., Handbook on Evidence ER 802 (2011-12). HB 12-1085 utilizes a pre-existing definition of developmental disability which currently can be found at C.R.S. 27-10.5-102(11)(a).

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hearsay statement provide sufficient safeguards of reliability. Additionally, the court must find that the statement is a nontestimonial statement, or the disabled person must actually testify at some point during the proceeding. If they cannot testify, and the statement is not considered nontestimonial, then the defendant must have had the opportunity to cross-examine the disabled person in a prior proceeding and there must be corroborative evidence of the act that is the subject of the statement. Finally, the bill mandates a limiting instruction for the jury when evidence is admitted under this exception. The instruction should state that the jury heard an out-of-court statement, and instruct the jury that they should determine the weight and credibility of this evidence. It should further provide that in determining weight and credibility of the statement, the jury should consider the nature of the statement, the circumstances under which the statement was made, and any other relevant information. Colorado Context: Previously, C.R.S. 13-25-129 provided a similar hearsay exception for statements made by children related to sexual abuse performed with, by, on, or in the presence of the child. These statements were admissible in any criminal, civil, or delinquency proceeding where a child was the victim of sexual abuse. However, the Colorado Supreme Court held this statute unconstitutional in 2007 on the grounds that it violated a defendants Sixth Amendment right of confrontation, because in some instances it did not allow for the defendant to have the opportunity to cross-examine the child declarant.3 National Context: Some states provide an exception to the hearsay rule for developmentally disabled persons: Minnesota: MINN. STAT. 595.02(3) Oregon: OR. REV. STAT. 40.446(18a) Illinois: ILL. COMP. STAT. 115-10.3 Additionally, many other states create a similar exception that may be utilized when a child is the victim in a sexual abuse case.4 Florida previously had a hearsay exception for elderly and disabled adults, however, the Florida Supreme Court held the statute unconstitutional on confrontation clause grounds.5 In 2010, persons with developmental disabilities were victimized in violent crimes at almost twice the rate of persons who are not disabled. Of these violent victimizations, 50% consisted of serious crimes, such as rape or sexual assault, robbery, or aggravated assault.6 Bill Provisions: Creates an exception to the general ban on hearsay evidence where a developmentally disabled person is the speaker in four scenarios:
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See People v. Moreno, 160 P.3d 242, 243 (Colo. 2007). The Courts ruling was based on Crawford v. Washington, in which the United States Supreme Court held that the confrontation clause prohibited the introduction of testimonial statements, even in the form of hearsay, when the defendant was denied any opportunity for confrontation through cross-examination. Crawford v. Washington, 541 U.S. 36, 69 (2004). 4 See David F. Binder, Exception 37 Assertion by Child in Child Abuse Case (Tender Years Exception), Hearsay Handbook 4th 44:2 (2011).
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See Connor v. State, 748 So.2d 950, 954 (Fla. 1999). Erika Harrell, Department of Justice, Crime Against Persons with Disabilities, 2008-2010 Statistical Tables, 3 (2011).

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For a complete list of fact sheets, visit www.mikejohnston.org/in-the-legislature.

(1) A criminal or delinquency proceeding in which the disabled person is an alleged victim; o (2) Any criminal, civil, or delinquency proceeding when the disabled persons statement describes the commission of certain sexual crimes which were allegedly performed with, by, on or in the presence of the disabled person; o (3) Any criminal, delinquency, or civil proceeding in which a child is alleged to be a victim of abuse or neglect when the disabled persons statement describes an act of child abuse that the disabled person either witnessed or was the victim of; and o (4) Any criminal, delinquency, or civil proceeding when the disabled persons statement describes a homicide or related crime of violence, or an act of domestic violence. Mandates a hearing outside of the presence of the jury prior to the admission of the hearsay evidence. The hearsay evidence is admissible only if during the hearing the court finds that: o (1) The time, content, and circumstances of the hearsay statement provide sufficient safeguards of reliability; and o (2) One of the following: The statement is considered a nontestimonial statement; The disabled person will testify at the proceedings; or If the disabled person is unavailable to testify, the defendant has previously had an opportunity to cross-examine the disabled person in a prior proceeding, and there is some corroborating evidence of the act that is the subject of the disabled persons statement. Requires the use of a limiting instruction when evidence is admitted pursuant to this exception.

Fiscal Impact: The fiscal note associated with this legislation anticipates a minimal increase in state expenditures. However, the increase is not expected to result in the need for increased appropriations in any area.7

Jessika Shipley, Fiscal Note: HB 12-1085 (Feb. 13, 2012), http://www.leg.state.co.us/clics/clics2012a/csl.nsf/fsbillcont3/6BEE869F0F4F77A287257981007E0B74?Open&file =HB1085_00.pdf.

DRAFT 3/12/2012 8:13 AM

For a complete list of fact sheets, visit www.mikejohnston.org/in-the-legislature.