§ 13-25-129 — Statements of a child - hearsay exception

(1) An out-of-court
statement made by a person under thirteen years of age, not otherwise admissible
by a statute or court rule that provides an exception to the hearsay objection, is
admissible in any criminal, delinquency, or civil proceeding in which the person is
alleged to have been a victim if the conditions of subsection (5) of this section are
satisfied.

(2) An out-of-court statement made by a child, as child is defined under the
statutes that are the subject of the action, or a person under fifteen years of age if
child is undefined under the statutes that are the subject of the action, describing
all or part of an offense of unlawful sexual behavior, as defined in section 16-22-102
(9), performed or attempted to be performed with, by, on, or in the presence of the
child declarant, and that is not otherwise admissible by a statute or court rule that
provides an exception to the hearsay objection, is admissible in evidence in any
criminal, delinquency, or civil proceeding if the conditions of subsection (5) of this
section are satisfied.

(3) An out-of-court statement by a child, as child is defined under the
statutes that are the subject of the action, describing any act of child abuse, as
defined in section 18-6-401, to which the child declarant was subjected or that the
child declarant witnessed, and that is not otherwise admissible by a statute or court
rule that provides an exception to the hearsay objection, is admissible in evidence in
any criminal, delinquency, or civil proceeding in which a child is a victim of child
abuse or the subject of a proceeding alleging that a child is neglected or dependent
under section 19-1-104 (1)(b), if the conditions of subsection (5) of this section are
satisfied.

(4) An out-of-court statement made by a person under thirteen years of age
describing all or part of an offense contained in part 1 of article 3 of title 18, or
describing an act of domestic violence as defined in section 18-6-800.3 (1), and that
is not otherwise admissible by statute or court rule that provides an exception to
the hearsay objection, is admissible in evidence in any criminal, delinquency, or civil
proceeding if the conditions of subsection (5) of this section are satisfied.

(5) (a) The exceptions to the hearsay objection described in subsections (1) to
(4) of this section apply only if the court finds in a pretrial hearing conducted
outside the presence of the jury that the time, content, and circumstances of the
statement provide sufficient safeguards of reliability; and

(b) The child either:

(I) Testifies at the proceedings; or

(II) Is unavailable as a witness and there is corroborative evidence of the act
which is the subject of the statement.

(6) If a statement is admitted pursuant to this section, the court shall
instruct the jury in the final written instructions that during the proceeding the jury
heard evidence repeating a child's out-of-court statement and that it is for the jury
to determine the weight and credit to be given the statement and that, in making
the determination, the jury shall consider the age and maturity of the child, the
nature of the statement, the circumstances under which the statement was made,
and any other relevant factor.

(7) The proponent of the statement shall give the adverse party reasonable
notice of the proponent's intention to offer the statement and the particulars of the
statement.

Legislative History

Source: L. 83: Entire section added, p. 629, � 1, effective May 25. L. 85: IP(1) amended, p. 676, � 5, effective June 7; IP(1) amended, p. 714, � 1, effective June 7. L. 87: IP(1) amended, p. 558, � 1, effective April 16; IP(1) amended, p. 815, � 13, effective October 1. L. 93: (2) amended, p. 515, � 1, effective July 1. L. 2003: IP(1) amended, p. 973, � 5, effective April 17. L. 2006: IP(1) amended, p. 420, � 1, effective April 13. L. 2015: IP(1) amended, (HB 15-1183), ch. 96, p. 275, � 1, effective April 10. L. 2019: Entire section amended, (SB 19-071), ch. 42, p. 144, � 1, effective July 1.