In child sexual or physical abuse case, the child is often interviewed by a forensic interviewer at the Children's Justice Center (the CJC interview). The interview is usually videotaped. At trial, the prosecution will attept to admit the video into evidence and play it for the jury. The video can be powerful evidence, although sometimes this hearsay evidence is unfairly prejudical.
In Utah, Rule 15.5 explains the conditions for the admissibility of an out-of-court statement by a child in an abuse case. In many of these cases, the criminal defense attorney will argue that the child hearsay testimony is not sufficiently reliable and trustworthy under Rule 15.5 of the Utah Rules of Criminal Procedure to be admitted at trial.
For cases involving a statement made by a child that has been audio or video recorded, it is important to talk to an experienced criminal defense attorney about how this evidence might impact your case. The attorneys at Brown, Bradshaw & Moffat, LLP are experienced in fighting allegations of crimes being committed against children.
We fight criminal cases throughout Salt Lake City and the surrounding areas in Utah. Contact us to find out more about how Rule 15.5 might impact your case. Call us at (801) 532-5297 today.
Utah Child Hearsay Information Center
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Rule 15.5 provides that “the oral statement of a victim ... younger than 14 years of age which was recorded prior to the filing of an information or indictment is ... admissible as evidence in any court proceeding regarding the offense if,” among other things, “the court views the recording before it is shown to the jury and determines that it is sufficiently reliable and trustworthy and that the interest of justice will best be served by admission of the statement into evidence.” Utah R. Crim. P. 15.5(a)(8).
Reliability in this context is a fact-intensive inquiry, requiring the trial court to undertake “an in-depth evaluation of the proposed testimony” and then enter findings and conclusions to explain its decision to admit or exclude the testimony. See State v. Snyder, 932 P.2d 120, 133 (Utah Ct. App. 1997) (citation and internal quotation marks omitted).
As a result, “[i]n reviewing the trial court's decision to admit, we defer to the trial court's fact-finding role by viewing the facts in the light most favorable to the trial court's decision to admit and by reversing its factual findings only if they are against the clear weight of the evidence.” See State v. Ramirez, 817 P.2d 774, 782 (Utah 1991).
Utah R. Civ. P. 52(a)(4) provides that “[f]indings of fact, whether based on oral or other evidence, must not be set aside unless clearly erroneous, and the reviewing court must give due regard to the trial court's opportunity to judge the credibility of the witnesses.”). The court on appeal reviews issues related to whether the facts are sufficient to demonstrate reliability, since this is a question of law.
In State v. Cruz, 2016 UT App 234, ¶ 16, 387 P.3d 618, the court held that “[w]hether the trial court correctly admitted the videotaped interviews into evidence pursuant to rule 15.5 is a question of law [is reviewed on appeal] for correctness.”
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In making its reliability determination, the trial court considered numerous factors and made extensive findings. The court will make factual findings to determine whether any interview of the child was reliable under rule 15.5 of the Utah Rules of Criminal Procedure.
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The courts in Utah have explained that a video recording of a child's police interview is recorded testimony. "A recording of a child's interview taken by police for the purpose of prosecuting crime, which is then introduced at trial and subjected to live cross-examination, constitutes, for purposes of this rule, testimony—or, at the very least, falls within the category of 'exhibits which are testimonial in nature" and thus "should not be given to the jury during its deliberations." State v. Cruz, 387 P.3d 618, 628 (Utah Ct. App. 2016)(citing State v. Carter, 888 P.2d 629, 643 (Utah 1995).
Therefore, the trial court errs in sending the video recordings of the child hearsay interviews into the jury room during deliberations. See State v. Cruz, 387 P.3d 618, 629 (Utah Ct. App. 2016).
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