People v. Vigil
People v. Vigil, 104 P.3d 258 (Colo. Ct. App. 2004), cert. granted (Dec. 20, 2004), the defendant in Vigil was convicted for sexually assaulting a seven-year-old boy.
At trial, the State showed portions of a videotaped police interview of the child.
The boy did not testify at trial, and the defendant argued that admission of the videotape violated his rights under the Confrontation Clause.
In finding the videotape was testimonial, the Vigil court rejected the People's argument that the statement was not testimonial because "it was not made during the course of a police interrogation and because a seven-year-old child would not reasonably expect his statements to be used prosecutorially." Id. at 262.
The court explained that "although the interview in this case was conducted in a relaxed atmosphere, with open-ended, nonleading questions, and although no oath was administered at the outset, it nevertheless amounted to interrogation under Crawford." Id.
The court noted that the interviewing officer "told [the child] he needed to tell the truth," and when officer asked the child what should happen to the defendant, "the child replied that defendant should go to jail." Id.
Therefore, while the Vigil court did not expressly state the objective witness test should consider the age of the actual witness, the court did apply such a test under the facts before it.