(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.
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.
Editor's note: (1) Senate Bill 85-042 superseded by House Bill 85-1327.
(2) Amendments to the introductory portion to subsection (1) by House Bill 87-1256 and Senate Bill 87-144 were harmonized.
13-25-129.5. Statements of persons with intellectual and developmental disabilities - hearsay exception. (1) An out-of-court statement made by a person with an intellectual and developmental disability, as defined in section 25.5-10-202 (26)(a), C.R.S., not otherwise admissible by a statute or court rule that provides an exception to the objection of hearsay is admissible in any criminal or delinquency proceeding in which the person is alleged to have been a victim if the conditions of subsection (5) of this section are satisfied.
(2) (a) An out-of-court statement made by a person with an intellectual and developmental disability, as defined in section 25.5-10-202 (26)(a), C.R.S., that describes all or part of an offense described in paragraph (b) of this subsection (2) performed with, by, on, or in the presence of the declarant, and that is not otherwise admissible by a statute or court rule that provides an exception to the objection of hearsay, is admissible in any criminal, delinquency, or civil proceeding if the conditions of subsection (5) of this section are satisfied.
(b) The exception described in subsection (2)(a) of this section applies to an out-of-court statement made by a person with an intellectual and developmental disability, which statement describes all or part of any of the following offenses:
(I) Sexual assault, as described in section 18-3-402 or 18-6.5-103;
(II) Unlawful sexual contact, as described in section 18-3-404 or 18-6.5-103;
(III) Sexual assault on a child, as described in section 18-3-405 or 18-6.5-103;
(IV) Sexual assault on a child by one in a position of trust, as described in section 18-3-405.3 or 18-6.5-103;
(V) Internet sexual exploitation of a child, as described in section 18-3-405.4;
(VI) Sexual assault on a client by a psychotherapist, as described in section 18-3-405.5 or 18-6.5-103;
(VII) Incest, as described in section 18-6-301;
(VIII) Aggravated incest, as described in section 18-6-302;
(IX) Human trafficking of a minor for involuntary servitude, as described in section 18-3-503, or human trafficking of a minor for sexual servitude, as described in section 18-3-504 (2);
(X) Sexual exploitation of a child, as described in section 18-6-403;
(XI) Indecent exposure, as described in section 18-7-302;
(XI.5) An offense contained in article 6.5 of title 18; or
(XII) Criminal attempt to commit any of the acts specified in this subsection (2)(b).
(3) An out-of-court statement by a person with an intellectual and developmental disability, as defined in section 25.5-10-202 (26)(a), C.R.S., that describes any act of child abuse, as defined in section 18-6-401, C.R.S., to which the declarant was subjected or which the declarant witnessed, and that is not otherwise admissible by a statute or court rule that provides an exception to the objection of hearsay, is admissible in evidence in any criminal, delinquency, or civil proceeding in which a child is alleged to be 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), C.R.S., if the conditions of subsection (5) of this section are satisfied.
(4) An out-of-court statement made by a person with an intellectual and developmental disability, as defined in section 25.5-10-202 (26)(a), that describes all or part of an offense contained in part 1 of article 3 of title 18 or article 6.5 of title 18, or that describes an act of domestic violence as defined in section 18-6-800.3 (1), not otherwise admissible by statute or court rule that provides an exception to the objection of hearsay, is admissible in evidence in any criminal, delinquency, or civil proceeding if the conditions of subsection (5) of this section are satisfied.
(5) The exceptions to the objection of hearsay described in subsections (1), (2), (3), and (4) of this section shall apply only if the court finds in a hearing conducted outside the presence of the jury that the time, content, and circumstances of the statement provide sufficient safeguards of reliability; and either:
(a) The statement is a nontestimonial statement; or
(b) (I) The declarant testifies at the proceedings; or
(II) If the declarant is unavailable to testify, the defendant has had an opportunity to cross-examine the declarant in a previous proceeding 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 person's out-of-court statement, 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 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 his or her intention to offer the statement and the particulars of the statement.
Source: L. 2012: Entire section added, (HB 12-1085), ch. 75, p. 253, � 1, effective August 8. L. 2013: (1), (2)(a), (3), and (4) amended, (HB 13-1314), ch. 323, p. 1802, � 24, effective March 1, 2014. L. 2014: (2)(b)(IX) amended, (HB 14-1273), ch. 282, p. 1152, � 8, effective July 1. L. 2017: (2)(b) and (4) amended, (SB 17-024), ch. 83, p. 257, � 1, effective July 1.
13-25-130. Criminal actions - use of photographs, video tapes, or films of property. (1) Photographs, video tapes, or films of property over which a person is alleged to have exerted unauthorized control or otherwise to have obtained unlawfully are competent evidence if the photographs, video tapes, or films are admissible into evidence under the rules of law governing the admissibility of photographs, video tapes, or films into evidence. Any photographic, video tape, or film record, when satisfactorily identified and authenticated, is as admissible in evidence as the property itself.
(2) (a) Any photograph may bear a written description of the property alleged to have been wrongfully taken, the name of the owner of the property taken, the name of the accused, the name of the arresting law enforcement officer, the date of the photograph, and the signature of the photographer.
(b) Any video tape or film may include, as a segment of the tape or film, a written description of the property alleged to have been wrongfully taken, the name of the owner of the property taken, the name of the accused, the name of the arresting law enforcement officer, the date the tape or film was produced, and a segment showing the signature of the photographer.
(3) A law enforcement agency which is holding property over which a person is alleged to have exerted unauthorized control or otherwise to have obtained unlawfully may return that property to its owner if:
(a) The appropriately identified photographs, video tapes, or films are filed and retained by the law enforcement agency;
(b) Satisfactory proof of ownership of the property is shown by the owner;
(c) A declaration of ownership is signed under penalty of perjury;
(d) The defendant, if a defendant has been filed upon, has been notified that such photographs, video tapes, or films have been taken, recorded, or produced; and
(e) A receipt for the property is obtained from the owner upon delivery by the law enforcement agency.
Source: L. 85: Entire section added, p. 576, � 1, effective July 1.
Cross references: For provisions in the criminal code concerning the use of photographs, video tapes, or films of property, see �� 18-4-305, 18-4-415, and 18-4-514.
13-25-131. Civil actions - sexual assault - certain evidence presumed irrelevant. (1) In any civil action for damages by an alleged victim which alleges damages resulting from a sexual assault on a client by any person who enters into a professional-client relationship that permits professional physical access to the client's person or the opportunity to affect or influence the thought processes or emotions of such client, including, but not limited to, actions for professional malpractice or assault and battery, evidence of specific instances of the victim's prior or subsequent sexual conduct, opinion evidence of the victim's sexual conduct, and reputation evidence of the victim's sexual conduct shall be presumed to be irrelevant, except as provided in subsections (2) and (4) of this section. The persons to whom this subsection (1) applies in a civil action against such persons shall include any psychotherapist as defined in section 18-3-405.5, C.R.S., any medical professional, any member of the clergy, or any person acting under the color of a religious organization. This subsection (1) shall also apply in a civil action against a parent or other person in a position of trust, power, or authority over any child or other person, in a civil action by or on behalf of such child or such other person.
(2) Subsection (1) of this section notwithstanding, in any of the civil actions described in such subsection (1), evidence of the following shall be presumed to be relevant:
(a) Evidence of the victim's prior or subsequent sexual conduct with the defendant in such civil action;
(b) Evidence of specific instances of sexual activity showing the source or origin of semen, pregnancy, disease, or any similar evidence of sexual intercourse, including, but not limited to, genetic testing pursuant to section 13-25-126, offered for the purpose of showing that the act or acts alleged were or were not committed by the defendant in such civil action.
(3) In any civil action described in subsection (1) of this section, evidence of specific instances of the alleged victim's prior or subsequent sexual conduct is not subject to discovery.
(4) Notwithstanding subsections (1) and (3) of this section, evidence of specific instances of the alleged victim's prior or subsequent sexual conduct may be determined to be subject to discovery or offered as evidence, if the defendant or plaintiff requests a hearing prior to conducting discovery or attempting to admit such evidence and makes an offer of proof of the relevancy of such evidence and the court finds that the evidence is relevant and the probative value of such evidence outweighs its prejudicial effect. Such hearing shall be held no later than thirty days prior to trial. In making an order that such evidence is relevant, the court shall detail the information or conduct that is subject to discovery or which may be admitted into evidence.
Source: L. 91: Entire section added, p. 352, � 1, effective July 1. L. 97: (2)(b) amended, p. 560, � 3, effective July 1.