A ruling that Colorado prosecutors feared could hamper their ability to prosecute people accused of sexually assaulting children was overturned Monday by the Colorado Supreme Court.
In June 2004, the Colorado Court of Appeals threw out the conviction of a Boulder man, Joe E. Vigil, 41, who prosecutors said raped the 7-year-old son of a co-worker in February 2001.
During Vigil’s trial, the judge ruled that the boy was too young to testify, and prosecutors didn’t put him on the stand.
They relied instead on a videotaped statement made by the child to police and called as witnesses his father, a friend of the father and the doctor who treated the victim.
Steven Bernard, a prosecutor in the 19th Judicial District, said there is a presumption in Colorado law that children younger than 10 can’t testify.
Vigil’s defense claimed that the fact the child didn’t testify robbed them of the ability to cross-examine the boy and violated a March 2004 U.S. Supreme Court decision about a defendant’s right to confront witnesses.
Citing the 2004 ruling, the Court of Appeals said Vigil had been denied his constitutional rights because neither the police videotape nor the doctor’s testimony should have been admitted.
But the Colorado Supreme Court reversed the decision, saying that although the videotape shouldn’t have been admitted, it was a harmless error that would have had no impact on the ultimate verdict. The court said the doctor’s comments were permissible.
Colorado Attorney General John Suthers called the decision a “big victory.”
“If statements to a treating physician by a child were … inadmissable without any further analysis, I think that would have caused a lot of cases in the future to be unprosecutable,” Suthers said.
In saying the police videotape was harmless, Justice Nancy Rice said prosecutors presented ample evidence, apart from the videotaped statement, that gave the jury grounds for finding Vigil guilty.
The evidence included the child’s father seeing Vigil and the child in a position that strongly suggested a sexual assault; the child vividly describing to his father and the father’s friend how he was hurt by Vigil; and Vigil’s comments, when confronted by police, that he had “done a bad thing.” He then stabbed himself in the throat and chest.
Staff writer Howard Pankratz can be reached at 303-820-1939 or hpankratz@denverpost.com.
