In a pair of rulings addressing out-of-court statements from child victims, the Colorado Supreme Court on Monday made it easier for prosecutors to introduce hearsay evidence against defendants accused of sexually assaulting minors.

Out-of-court testimony aimed at proving the truth is generally inadmissible at trial, as defendants cannot cross-examine the witness in front of jurors. However, Colorado law permits hearsay in instances where a child witness is testifying about a sex offense.

Unlike other states, which have a specific age cutoff for hearsay testimony, Colorado law pegs the threshold to whatever age is written in the “subject of the action.”

But what does that mean?

The court determined that prosecutors may use out-of-court testimony from older child victims, even if the defendant is accused of assaulting the victim when they were younger than the age cutoff.

Colorado’s law allowing for child hearsay ensures prosecutors can have the evidence they need in sex crimes, but also protects criminal defendants against out-of-court testimony they cannot challenge. A further goal of the law is to avoid retraumatizing younger victims by sparing them the ordeal of having to answer questions in front of a jury.

Two men, Dennis R. Chirinos-Raudales and Jose Leonel Orellana-Leon, were both convicted of sexual assault on a child in Denver and Boulder County, respectively. Both men’s victims reported their abuse at age 15, and forensic interviewers spoke to each one. 

Colorado law deems sexual assault on a child by someone in a position of trust – the specific crime at issue – a class 4 felony. But it becomes a more serious offense if the victim is under 15. At Chirinos-Raudales and Orellana-Leon’s trials, the prosecution played videos of the victims’ forensic interviews in lieu of the children’s in-court testimony. On appeal, the men challenged that evidence.

The defendants pointed to Colorado’s child hearsay law that indexes the cutoff age to the number listed in the “subject of the action.” Because they were sentenced more severely for assaulting a child under 15, their victims’ interviews – recorded at age 15 – did not make the cutoff for use at trial, they argued. 

The Colorado Criminal Defense Bar weighed in on their behalf, contending that even if the video evidence were barred, the prosecution would “merely have to prove its case like any other – without the use of inadmissible hearsay and by submitting it to cross-examination.”

The government countered that the defendants were charged with sexually assaulting a child, meaning someone under 18. The provision enhancing their sentences if their victims were younger than 15 was not the “subject of the action.” By choosing the lower age as the cutoff for hearsay, it could become harder to secure more serious sentences for offenses against younger children.

“I think we are also likely to get some cases where the prosecution makes the decision not to charge the sentence enhancers so they can get in this evidence,” warned Senior Assistant Attorney General Brock J. Swanson during oral arguments. “And we’re doing it for procedural reasons rather than for the defendant’s actual, substantive guilt.”

Alternatively, the government suggested that when multiple age cutoffs are listed, every age is fair game.

“It’s maximalist, right?” said Justice William W. Hood III. “You look at any opportunity to admit child hearsay under the statute and you go to the highest age.”

While the Supreme Court did not explicitly endorse the “maximalist” position, it ultimately agreed the victims in Chirinos-Raudales and Orellana-Leon’s cases were allowed to testify out of court. Chief Justice Brian D. Boatright, in the June 12 opinion, explained the men were charged with sexual assault on a child, which was the real “subject of the action.”

Without that charge, “there would be no judicial proceeding,” he wrote. Therefore, the higher age cutoff of 18 applied.

The cases are Chirinos-Raudales v. People and Orellana-Leon v. People.