Evidence Code section 1228

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.

Source: Section 1228, https://leginfo.­legislature.­ca.­gov/faces/codes_displaySection.­xhtml?lawCode=EVID§ionNum=1228.­ (accessed Apr. 24, 2025).

Last Updated

Apr. 24, 2025

§ 1228’s source at ca​.gov