People v. Miller , 15 Brief Times Rptr. 1061 ( 1991 )

Judge JONES

dissenting.

I respectfully dissent.

In § 13-25-129(2), C.R.S. (1987 Repl.Vol. 6A), the policy of the Colorado General Assembly is revealed to be that, when a child’s hearsay statement is admitted in a sexual assault prosecution, the court must give a cautionary instruction to the jury. The Colorado Supreme Court has held that such instruction must be given contemporaneously with- the admission of the hearsay evidence. People v. McClure, 779 P.2d 864 (Colo.1989). See People v. Mathes, 703 P.2d 608 (Colo.App.1985).

I believe that the General Assembly meant what it said in requiring contemporaneous cautionary instruction and would not have this court deviate from the plain intent of the statute. I believe that this is also the lesson of the McClure case.

And, here, even to the extent that the failure to instruct contemporaneously with the testimony of the victim’s schoolmate may be excused by the rubric of People v. Wood, 743 P.2d 422 (Colo.1987), that rule cannot apply to the circumstances of the expert testimony by the psychotherapist. See People v. Flysaway, 807 P.2d 1179 (Colo.App.1990) (Plank, J. dissenting).

It matters not that the hearsay admitted through the psychotherapist amounted to little more than a few sentences. Coming as it did from one having the aura of a learned expert, the testimony raises the danger that the jury will accept the hearsay statements as true without critically evaluating the credibility of the declarant. And, because the credibility of the hearsay statements or their source cannot be challenged when the declarant is under oath and subject to cross-examination, and independent indices of reliability are not always obvious from the presentation of the hearsay by an expert, a defendant’s right of confrontation and his or her due process right to a fair trial are prejudicially implicated. Thus, I cannot conceive of how “the outcome of this trial was unaffected by the trial court’s failure to give the cautionary instruction.” People v. McClure, supra.

Therefore, I conclude that under the circumstances here, the trial court committed plain error, requiring reversal of defendant’s conviction.