Notwithstanding any other provision of law, for the purpose of establishing the elements of the crime in order to admit as evidence the confession of a person accused of violating Section 261, 264.1, 285, 286, 287, 288, 289, or 647a of, or former Section 288a of, the Penal Code, a court, in its discretion, may determine that a statement of the complaining witness is not made inadmissible by the hearsay rule if it finds all of the following:
(a)The statement was made by a minor child under the age of 12,
and the contents of the statement were included in a written report of a law enforcement official or an employee of a county welfare department.
(b)The statement describes the minor child as a victim of sexual abuse.
(c)The statement was made prior to the defendant’s confession. The court shall view with caution the testimony of a person recounting hearsay where there is evidence of personal bias or prejudice.
(d)There are no circumstances, such as significant inconsistencies between the confession and the statement concerning material facts establishing any element of the crime or the identification of the defendant, that would render the statement unreliable.
(e)The minor child is found to be unavailable pursuant to paragraph (2) or (3) of subdivision (a) of Section 240 or refuses to testify.
(f)The confession was memorialized in a trustworthy fashion by a law enforcement official.
If the prosecution intends to offer a statement of the complaining witness pursuant to this section, the prosecution shall serve a written notice upon the defendant at least 10 days prior to the hearing or trial at which the prosecution intends to offer the statement.
If the statement is offered during trial, the court’s determination shall be made out of the presence of the jury. If the statement is found to be admissible pursuant to this section, it shall be admitted out of the presence of the jury and solely for the
purpose of determining the admissibility of the confession of the defendant.
Notes of Decisions
Cited in
14
cases (
2 in the last 5 years), 1987–2021 · leading case:
People v. Jones, 949 P.2d 890 (Cal. 1998).
People v. Jones, 949 P.2d 890 (Cal. 1998).
· cites it 4× “Evidence Code section 1228 provides that if the court finds the hearsay statement of a child under age 12 sufficiently trustworthy in certain respects, it may admit the statement "for the purpose of establishing the elements of the crime in order to admit as evidence the…”
Idaho v. Wright, 497 U.S. 805 (1990).
· cites it 2× “803(25)(A); Cal. Evid. Code Ann. § 1228 (West 1990); Colo.”
Creutz v. Superior Court, 96 Cal. Daily Op. Serv. 7204 (Cal. Ct. App. 1996).
· cites it 10× “” (Evid. Code, § 1228.) The statute further provides that at trial, the statement of the minor is, if found admissible, not to be given to the jury, but is to be used solely to determine the admissibility of the confession.”
Snowden v. State, 846 A.2d 36 (Md. Ct. Spec. App. 2004).
“§ 13-1416 (2003); Cal Evid.Code § 1228 (2003); Colo.Rev.Stat.”
Schmidt v. State, 401 P.3d 868 (Wyo. 2017).
“110 (West 2017) Hearsay evidence in prosecutions for sexual offenses', Cal. Evid. Code § 1228 (West 2017) Admissibility of certain out-of-court statements of minors under the age of 12; establishing elements of certain sexually oriented crimes; notice to defendant; Cal.”
Stevens v. People, 796 P.2d 946 (Colo. 1990).
“803(25)(A); Cal.Evid.Code § 1228 (West 1990); Fla.Stat.”
Matter of ADB, 778 P.2d 945 (Okla. Civ. App. 1989).
“§ 16-41-101 (1987); Cal.Evid.Code § 1228 (West Supp. 1988); Fla.”
State v. Bates, 778 P.2d 945 (Okla. Civ. App. 1989).
“§ 16-41-101 (1987); Cal.Evid.Code § 1228 (West Supp.1988); Fla.”
P.K.A. v. J.E.A., 725 S.W.2d 78 (Mo. Ct. App. 1987).
“29, 1986) (West); Cal.Evid.Code § 1228 (Cum.Supp.West 1986); Colo.”
In Re Marriage of PKA, 725 S.W.2d 78 (Mo. Ct. App. 1987).
“Law (1984) Code Ann. § 9-101 (Cum.Supp.1986); Minn.”
S.B. v. B.J. Ca5 (Cal. Ct. App. 2021).
· cites it 2× “He argues that the trial court wrongfully dismissed certain statements made by his minor children to police officers as hearsay under Evidence Code section 1228. For the court to admit, in its discretion, hearsay attributable to a minor, Evidence Code section 1228 lays out six…”
People v. Lewis CA3 (Cal. Ct. App. 2015).
· cites it 2× “’s Statements, Defendant’s Statements Were Nevertheless Admissible Evidence Code section 1228 purports to allow courts to admit into evidence the out-of-court statement of an alleged child victim, even though the statement may otherwise be hearsay, “for the purpose of…”
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