Supreme Court of Colorado Embraces an “Objectively Reasonable Child” Analysis in Determining Whether A Statement Is Testimonial Under Crawford v. Washington.
People v. Vigil, No. 04SC532, 2006 Colo. Lexis 65 (Colo. January 23, 2006) (en banc)
Crawford v. Washington, 541 U.S. 36 (2204), prohibits the admissibility of testimonial hearsay statements of non-testifying witnesses. While the Supreme Court declined to precisely define “testimonial hearsay,” it did include, inter alia, interrogation by a government agent and statements “that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use later at trial.” Id. at 51-52. It is this component of testimonial hearsay statements the Colorado Supreme Court clarifies by further defining the term “objective witness.” To determine whether the hearsay statements of a seven year old sexual assault victim were testimonial, the Colorado Supreme Court analyzed the circumstances around the boy’s statements and adopted an “objectively reasonable child in the declarant’s position” test.
At trial the jury heard evidence from Brett Brown concerning the sexual assault of his seven year old son. Mr. Brown testified that upon entering a room in his home, he observed the defendant in a state of partial undress over Mr. Brown’s partially undressed son. The defendant immediately fled the home, pulling on his clothes. The victim told both his father and a second witness that the defendant “stuck his winkie in my butt” and his “butt hurt.” The child, who was tearful and appeared in pain during all his statements, further told a second witness several times that his “butt hurt.” Police stopped the defendant who stated he had “done bad” and stabbed himself in the chest and throat. The defendant repeated these statements in the hospital. The police then escorted both the victim and his mother to the hospital where the police requested a doctor to perform a forensic exam on the child. During said exam the child made further disclosures and a few days later the child was interviewed by the officer. Said interview was videotaped and portions were played to the jury at trial under Colorado’s hearsay exception for statements of a child victim of child abuse. The child did not testify at trial.
The intermediate appellate court reversed the defendant’s conviction because the videotaped statement to the police constituted testimonial hearsay. The appellate court further ruled that the trial court erred in admitting the child’s statements to the doctor.
The Colorado Supreme Court reversed the appellate court’s analysis on several grounds. With regard to the child’s statement to the doctor, the Colorado Supreme Court concluded that his questioning of the victim was not the equivalent of police interrogation. Specifically, “the fact that the doctor was a member of the child abuse protection team does not in and of itself, make him a government official. . . .” Moreover, the Colorado Supreme Court rejected defendant’s request that Crawford’s “objective witness” be defined as the “objectively reasonable adult observer educated in the law.” Rather, the court held that “the ‘objective witness’ language in Crawford refers to an objectively reasonable person in the declarant’s position.” The Court concluded that the age of the witness is a relevant circumstance to include in determining the reasonable expectation of the declarant. In so doing, the Court concluded that the child could not have had a reasonable expectation his statements would be used in court but, rather, that he simply spoke with the doctor with the expectation that the doctor would help him “stop hurting.”
After adopting this reasonable child test, the court further held that these non-testimonial statements were made for the purpose of medical diagnosis and, therefore, did not violate either the federal or state confrontation clauses. The court made a similar conclusion regarding the child’s statements to the father and the father’s friend, finding them to be both non-testimonial and the product of an excited utterance. Finally, although finding it error to admit the videotaped police questioning of the child, in light of the overwhelming evidence against the defendant, the court concluded it was not plain error requiring reversal.
