Chapter 3 - §9. Exception—Child's corroboration of confession to sexual abuse

• Jurisdiction: United States

§9. Exception—Child's corroboration of confession to sexual abuse

A child victim's out-of-court statement may be admitted to corroborate a defendant's confession to sexual abuse of the child as an exception to the hearsay rule. Evid. C. §1228.

Federal Comparison The FREs have no comparable rule.

§9.1. Overview. In every criminal trial, the prosecution must prove the corpus delicti—that is, the fact of injury, loss, or harm and the existence of a criminal agency as its cause. People v. Alvarez (2002) 27 Cal.4th 1161, 1168. See "Corpus delicti," ch. 3-B, §5.4.1. Traditionally, one prong of the corpus delicti rule was that a defendant's out-of-court statements were inadmissible without some other independent evidence of the crime. Alvarez, 27 Cal.4th at 1170. Evid. C. §1228 was created to overcome the admissibility prong of the traditional corpus delicti rule. See Creutz v. Superior Ct. (4th Dist.1996) 49 Cal.App.4th 822, 829-30. Evid. C. §1228 provides a narrow exception to the corpus delicti rule by allowing the judge to consider certain statements by child victims only to aid the court's decision whether to allow the defendant's confession into evidence for jury consideration; the child's statement itself cannot be presented to the jury. See Creutz, 49 Cal.App.4th at 826. Only two published California cases have addressed Evid. C. §1228. See In re J.A. (2d Dist.2011) 198 Cal.App.4th 914, 916-17 (juvenile disciplinary proceeding); Creutz, 49 Cal.App.4th at 825 (preliminary hearing). Whether Evid. C. §1228 is still viable is questionable after the California Supreme Court concluded that the admissibility prong of the corpus delicti rule was abrogated by Proposition 8 (Victims' Bill of Rights). See Alvarez, 27 Cal.4th at 1180 ("there no longer exists a trial objection to the admission in evidence of the defendant's out-of-court statements on grounds that independent proof of the corpus delicti is lacking"). For a discussion of Proposition 8, see "Exceptions to admissibility," ch. 1, §3.2.

§9.2. Requirements for exception. For a child victim's hearsay statement about sexual abuse for the limited purpose of corroborating the defendant's confession to be admissible, the following criteria must be met:

1. Defendant confessed to sexual abuse. The defendant must have been accused of and made a confession to one of the crimes of sexual abuse listed under Evid. C. §1228, and the confession must have been memorialized in a trustworthy fashion by a law-enforcement...