Colorado Jury’s Unrestricted Access to Child Interview Videotape Results in Reversal

A Colorado appellate court has reversed a man’s conviction for sexual assault on a child after the trial judge allowed the jury unrestricted access to a videotaped interview of the child.

The videotape contained the child’s out-of-court statements to a forensic interviewer, detailing the alleged sexual contact. The defendant did not object to the admission of the videotaped interview but objected to the jury’s unrestricted possession of it during deliberations.

The trial judge allowed the jury to use the DVD of the interview during deliberations. The trial judge reasoned that the jury would not place undue weight on a tape that was already played in open court during trial and that merely corroborated testimony. The trial judge also reasoned that the jury took notes on the interview, and that allowing the jury to review the interview again would be similar to the jurors’ reviewing their notes.

As a general rule, a jury is permitted to take all exhibits admitted as evidence into the jury room. Nonetheless, the trial judge has a duty to restrict evidence that may be given undue weight including trial testimony. The test for restriction weighs the aid to the jury by having the exhibit against the prejudice to a defendant by the jury’s use of the exhibit.

Here, the appellate court held that the trial judge abused his discretion in allowing the jury unrestricted access to the videotaped interview. The court noted that videotaped interviews are important prosecution evidence, particularly in this case, where the interviewed occurred two days after the alleged assault, and it explained details that the child was unable to recall two years later at trial.

The appellate court then responded to the trial judge’s reasoning by stating that “the nature of videotaped testimony increases the likelihood it will be given undue emphasis when replayed.” The appellate court also noted that such evidence is equivalent to having a live witness in the jury room.

The appellate court emphasized the persuasiveness of videotaped interviews by stating that “a juror’s note cannot replicate the animation, passion, or vulnerability of the witness whose statements are captured on a videotaped exhibit.”

As the jury likely gave undue weight to the videotaped interview, the appellate court found the trial judge made a prejudicial error, and reversed the conviction.