A new law passed earlier this year, allowing prosecutors to utilize out of court statements by a developmentally challenged victim against a defendant in a jury trial, is currently being used for the first time in a Denver rape case.
Hearsay evidence (a statement, other than one made by a witness testifying at a trial, offered to prove the truth of the matter asserted) typically is inadmissible in a court unless a hearsay exception is met. The rational behind this is that hearsay evidence is by its very nature unreliable.
House Bill 12-1085 allows prosecutors to get around hearsay by deeming admissible statements by developmentally challenged victims or witnesses where the statement is in reference to one of the following offenses: sexual assault, unlawful sexual contact, sexual assault on a child, Internet exploration of a child, incest, and trafficking in children. Additionally, an evidentiary threshold must be met by the prosecution. Prior to using the statements, they must show that the circumstances surrounding the statement ensure its reliability and either the statement is non-testimonial or the declarant testifies at the trial, or if the declarant doesn’t testify the defendant had some prior opportunity to cross examine the declarant.
The rationale behind the bill is the prevalence of sexual assault against the developmentally challenged, and the difficulty of successfully prosecuting such cases. How this law will play out remains to be seen due to how very new it is.