dissenting.
I respectfully dissent from part I of the majority's opinion.
In Frasco v. People, 165 P.3d 701 (Colo.2007), the supreme court directed trial courts to ensure that testimonial exhibits 1 not be so selected or used in such a manner as to create a "likelihood of ... being given undue weight or emphasis by the jury." Id. at 703 (quoting Settle v. People, 180 Colo. 262, 264, 504 P.2d 680, 680-81 (1972)).
The supreme court's concern, in this regard, echoes (though does not quite mirror) the rule in many other jurisdictions barring the jury's unrestricted and unsupervised review of testimonial exhibits. See generally 6 Wayne R. LaFave et al., Criminal Procedure § 24.9(c), at 515 (8d ed. 2007) ("In most jurisdictions, the trial judge has discretion to allow the jurors to take with them other materials, such as pertinent exhibits, which have been received in evidence. Where that practice is followed, an exception ordinarily is made for depositions that have been read into the record, as they are simply another form of testimony and should not be given any greater attention than other testimony." (footnote omitted)); see also, eg., Fuller v. United States, 878 AZd 1108, 1116 (D.C. 2005) ("[MJost [courts] consider that it is within the discretion of the judge to allow 'many types of tangible exhibits [and] written exhibits generally except for those that are testimonial in nature. ..." (quoting 2 McCormick on Evidence § 2174, at 80 (John William Strong, ed., 5th ed.1999) ) (emphasis added)); Wright v. Premier Elkhorn Coal Co., 16 S.W.3d 570, 572 (Ky.Ct.App.1999) ("In general, testimonial evidence (such as a copy of a deposition) is not allowed in a jury room."); State v. Williams, 247 S.W.3d 144, 155 (Mo.Ct.App.2008) ("The broad 'general rule is that exhibits that are testimonial in nature cannot be given to the jury during its deliberation.'" (quoting State v. Parker, 208 S.W.3d 331, 338 (Mo.Ct.App.2006)) ); State v. Dixon, 259 Neb. 976, 614 N.W.2d 288, 296 (2000) ("The traditional common-law rule is that a trial court has 'no discretion to submit depositions and other testimonial materials to the jury room for unsupervised review, even if properly admitted into evidence at trial."" (quoting Chambers v. State, 726 P.2d 1269, 1275 (Wyo.1986)) ); State v. Burr, 195 N.J. 119, 948 A.2d 627, 686 (2008) ("[Alny playback of the videotape must occur in open court, along with the readback of related testimony that the court shall require."); State v. Monroe, 107 Wash.App. 637, 27 P.3d *4031249, 1251 (2001) ("Traditionally under common law, the trial court had no discretion to submit depositions and other testimonial materials to the jury room for unsupervised review by the jury even if those materials had been properly admitted into evidence at trial.").
"Quite sensibly, courts have had some reluctance to permit the jury to take with it documents of a testimonial character, lest they 'act as a speaking, continuous witness . to the exclusion of the totality of the evidence taken at the trial which must be viewed in its entirety.'" Pino v. State, 849 P.2d 716, 719 (Wyo.1993) (quoting 3 David W. Louisell & Christopher B. Mueller, Federal Evidence § 390, at 688-84 (1979 & Supp.1992) ); see 1 Michael H. Graham, Handbook of Federal Evidence § 408:2 ("The fear ... is that [documents of testimonial character] present an unfair advantage to the proponent in having only this single segment of the entire trial testimony before the jury during deliberations."); see also Burkhart v. Commonwealth, 125 S.W.3d 848, 850 (Ky.2003) ("With [testimonial] exhibits, there is concern that jurors may accord great weight to testimony re-examined during deliberations, as compared to the 'live' evidence heard at trial, because the unre-viewed testimony 'can only be conjured up by memory."" (quoting Wright, 16 S.W.3d at 572); Monroe, 27 P.3d at 1251 ("'The purpose of [the rule barring unsupervised jury review of testimonial materials] was to prevent juries from overemphasizing the submitted testimony to the detriment of the testimony that was not submitted.").
When, as here, a videotaped interview of a child is introduced to prove sexual abuse, the videotape is self-serving to the extent that it is testimonial in nature and asserts the truth of the child's statements. Young v. State, 645 So.2d 965, 967 (Fla.1994); see Mathews v. State, 258 Ga.App. 29, 572 8.E.2d 719, 721 (2002) (testimonial exhibits (including videotapes) "contain their makers' assertion of purported truths [and] are ascribed eviden-tiary value only to the extent that their makers are credible" (quoting Sagemich v. State, 255 Ga.App. 668, 566 S.E.2d 827, 328 (2002) ); Burr, 948 A.2d at 685 ("The videotaped pretrial statement at issue in this appeal is, however, significantly different from a demonstrative exhibit. Although it is evidence, it is also testimony. It is, in effect, a hybrid of the two. Unlike a demonstrative exhibit, the videotape contains hearsay statements offered for the truth of the matter asserted.").
Many states recognize that "the nature of videotaped testimony increases the likelihood it will be given undue emphasis when replayed" during jury deliberations. See State v. Koontz, 145 Wash.2d 650, 41 P.3d 475, 479 (2002).
In essence, the witness is brought before the jury a second time, after completion of the defense case, to repeat exactly what was testified to in the State's case. The witness' words and all of the animation, passion, or sympathy originally conveyed are again presented to the jury. It is difficult to deny that there is an advantage that may be gained in such cireumstances.
State v. Michaels, 264 N.J.Super. 579, 625 A2d 489, 524 (App.Div.1998), aff'd, 186 N.J. 299, 642 A.2d 1872 (1994), and quoted with approval in Bury, 948 A.2d at 685-36 (recognizing that "allowing a jury unfettered access to videotaped witness statements could have much the same prejudicial effect as allowing a jury unrestricted access to videotaped testimony during deliberations"); see United States v. Binder, 769 F.2d 595, 600 (9th Cir.1985) ("Videotape testimony is unique. It enables the jury to observe the demeanor and to hear the testimony of the witness. It serves as the functional equivalent of a live witness [with the jury in the room|]."), overruled on other grounds by United States v. Morales, 108 F.3d 1031, 1035 n. 1 (9th Cir.1997) (en bance); Young, 645 So.2d at 967 ("By permitting the jurors to see the interview once again in the jury room, there is a real danger that the child's statements will be unfairly given more emphasis than other testimony. Furthermore, unlike testimony in open court or even deposition testimony, the interviews are conducted on an ex parte basis without the right of eross-examination."); Martin v. State, 747 P.2d 816, 319 (Okla.Crim.App.1987) ("[There is an important distinction between having parts of testi*404mony dispassionately read to a jury and allowing the jury to hear, and see, the entire testimony of an empathetic witness, such as a child describing a painful experience in his young life. The possibility for abuse is, we believe, substantially increased with video technology. This being so, a trial judge should carefully consider the alternatives before placing the video in the unrestrained hands of the jury during deliberation. We believe that the risk of prejudice is great in this situation.").
In Frasco, the supreme court did not prohibit jury access to testimonial videotapes during deliberations. 165 P.3d at 704. Nor did it mandate time limitations on jury access to exhibits or particular limiting instructions concerning the use of exhibits during deliberations. Id. It simply obliged trial courts to "to assure that juries are not permitted to use exhibits in a manner that is unfairly prejudicial to a party." Id.
The supreme court held that, under the cireumstances of that case, the trial court did not abuse its discretion in allowing jury access during deliberations to a videotaped statement of a child sexual assault victim. There, the trial court had "issued an instruction that the videotape not be given special weight, required the jury to make a request to see the evidence before allowing it into the jury room, and conferred with counsel before permitting it to be given to the jury." Id. at 706 (Martinez, J., specially concurring). Indeed, defense counsel "expressly represented to the court that he had no objection to [unimpeded jury] access" to the tape. Id. at 705.
Further, the supreme court noted,
Beyond asserting that the jury had an opportunity to view the exhibit repeatedly and give it undue weight, the defendant has alleged nothing [on appeal] about the particulars of the videotape that would likely render its review during deliberations unfairly prejudicial. In light of the prior inconsistent statements it contained and the tactical use made of them by defense counsel at trial ... it is not even clear that defense counsel considered granting the jury access to the videotape to be disadvantageous.
Id. at 705.
Here, unlike in Frasco, the trial court did not (1) give a limiting instruction with respect to the victim's videotaped statement; (2) wait for a jury request to review the videotape; or (8) obtain counsel's agreement to allow the jury to have access to the tape. Indeed, with respect to the videotape of the second interview, the trial court here did not exercise any discretion to the end identified in Frasco: without even considering whether the jury might give undue weight to that videotape, the court allowed the jury access to it, without even so much as providing the jury with a cautionary or limiting instruction. See United States v. Smith, 419 F.3d 521, 527-29 (6th Cir.2005) (court erred in failing to give a proper cautionary instruction before providing the deliberating jury with a copy of witness's grand jury testimony).
The trial court, then, was not, as the majority here seems to think, "sensitive to the specific cireumstances" of the case.2 While the trial court's lack of concern for unfair prejudice was understandable in light of the precedent that existed at the time of trial, it nonetheless constituted an abuse of discretion, and, thus error, under Frasco. See People v. Robinson, 187 P.3d 1166, 1177 (Colo.App.2008) ("A trial court necessarily abuses its discretion where it misconstrues or misapplies the law."); see also People v. Darlington, 105 P.8d 230, 232 (Colo.2005) (the "failure to exercise discretion is itself an abuse of discretion").
Further, I think the court's error was prejudicial to defendant. As recounted above, in Frasco, the supreme court indicated that, to show prejudice, the defendant must go beyond merely asserting that the jury had an opportunity to repeatedly view the exhibit and give it undue weight. Rather, the defen*405dant must allege something about the particulars of the videotape that would render its unsupervised review during deliberations unfairly prejudicial because of the likelihood that the jury would give it undue weight or emphasis. Frasco, 165 P.3d at 705; see Settle, 180 Colo. at 264, 504 P.2d at 680 (reversal is warranted if there is a likelihood that the submitted evidence was used in such a manner that it was given undue weight or emphasis by the jury).
I am persuaded that defendant has made the requisite showing of prejudice in this case.
Pointing out that in the second videotaped interview the victim describes the alleged sexual assaults in much greater detail than he did during trial, defendant asserts that giving the jury unrestricted and unsupervised access to that videotape diluted the value of evidence impeaching the victim. This follows, he says, because the jury was allowed to repeatedly review what he characterizes as the prosecution's strongest evidence, but not any contradictory testimony. I agree.
From my review of the record, the victim, D.W., was vague and equivocal in his trial testimony. Although he described the basics of two sexual assaults, as well as two additional grooming incidents, he frequently responded to questions eliciting details of those events with "I don't know" or "I don't remember."
On the videotape, D.W. explains the same four instances, but in much greater detail. Specifically, D.W. provided greater detail (1) about the fellatio in the cemetery, including its duration, that this was only the "most recent time" it had occurred, and the physical changes that occurred to defendant's genitals during the fellatio; (2) about the sexual assault in the shower, including how defendant not only anally penetrated him, but forced him to penetrate defendant, how defendant moaned and cursed during the incident, how defendant took pictures of D.W.'s genitals, and how defendant ejaculated on him; (8) about a grooming incident that occurred on New Year's Eve, including that defendant told D.W. to pull down his pants so that defendant could photograph his genitals; and (4) about another grooming incident, including how defendant picked him up, took him for a ride, and showed him nude pictures of a young teenage girl. In addition, the videotape shows a very introverted and emotionally wrecked D.W.
During trial, defendant elicited admissions from D.W. that were meant to attack his credibility and support the defense theory that D.W. had fabricated the incident. For example, D.W. admitted that he had lied (1) to his parents about secing defendant in a bookstore (while a restraining order was in place); (2) to his parents when he said defendant had talked to him at the bookstore; (8) to a detective about the same incident; and (4) to the police when he called 911 to report that someone was throwing rocks at the window while his parents were not home. Defendant tried to establish, through specific examples, that D.W. would lie to avoid getting in trouble or being disciplined.
I cannot tell (nor, under CRE 606(b), could we inquire about) the extent to which the jury relied on the videotape of the second interview to the exclusion of evidence that impeached D.W.'s credibility. The majority asserts that because the jury did not specifically request the videotape, we can only speculate as to whether the jury actually reviewed the tape at all. However, courts have engaged in extensive analysis of the dangers attending unrestricted and unsupervised jury access to testimonial exhibits, regardless of whether the jury has requested to review the exhibit. See Martin, 747 P.2d at 319; see also State v. Bales, 297 Mont. 402, 994 P.2d 17, 21 (1999) (specifically noting that jury did not request the videotape, but analyzing the issue in-depth and resolving on a harmless error analysis); see also Janson v. State, 730 So.2d 734, 785 (Fla.Dist.Ct.App.1999) (where no indication that jury requested the material, analyzing the issue in-depth and resolving on harmless error grounds). In cases like this, we are called upon only to determine the likelihood that an exhibit was given undue weight or emphasis by the jury.
In this case, defendant did not testify, no other testimonial evidence was sent with the jury into deliberations, and the People heavi*406ly emphasized the videotape and its graphic details in their closing arguments. The jury would have had to rely upon its collective memory for the remainder of the testimony, including the evidence impeaching D.W.'s credibility; and, no cautionary or limiting instruction was given the jury with respect to the videotape.
The prosecution presented a strong, but not overwhelming, case of defendant's guilt.3 Under these circumstances, I believe that there is a strong likelihood that the jury gave the videotape undue weight or emphasis during deliberations.
Unlike the majority, I am not persuaded that any concern for unfair prejudice was alleviated here simply because the videotape was first played for the jury in open court. Whether a jury will give undue weight to, or place undue emphasis on, a testimonial exhibit cannot be equated with whether the exhibit was admissible (or admitted) in the first place. It is the jury's ability to access (and particularly, to have unrestricted and unsupervised access to) an exhibit ofter it has been admitted and used before the jury in open court that creates the danger of its being given undue weight or emphasis, within the meaning of Frasco and Settle.
Nor am I persuaded that the danger of a jury's giving undue weight or emphasis to a testimonial exhibit during deliberations is, in reality, little different from the danger that the jury would place emphasis on trial testimony as preserved in the notes of individual jurors. Unlike a videotaped exhibit, juror notes are not evidence, are not superior to independent recollections of the jurors, and do not prevail over the evidence presented at trial.4 In contrast, the videotaped exhibit is evidence; it is not subject to correction by an individual juror's recollection, and, is, as I explained earlier, the equivalent of allowing a witness (not, as in the case of a juror, an impartial decision maker) into the jury room.
Further, a juror's note cannot replicate the animation, passion, or sympathy of the witness whose statements are captured on a videotaped exhibit.
Finally, I reject any suggestion that any error here was rendered harmless when defendant referred to the videotape during closing argument. From my review of the record, defendant made only a generic reference to inconsistencies between D.W.'s videotaped statements and his trial testimony. He did not otherwise mention, much less emphasize, the contents of the videotape. Defendant's attempt to simply neutralize the impact of the tape cannot, in my view, be characterized as having put it to an advantageous use.
Because I believe that a strong likelihood exists that the jury gave the videotape undue weight or emphasis, I believe reversible error occurred. See Barnes v. State, 970 So.2d 332, 389-41 (Fla.2007) (reversible error to submit to jury without cautionary instruction tape that was inculpatory, contained inconsistent statement on important issue, and was emphasized and referred to in closing argument as "critical" by the prosecution); ef. Bales, 994 P.2d at 22 (not reversible error to submit to jury tape that was merely cumulative of trial testimony and that defendant had not claimed was critical to state's case).
Consequently, I would reverse defendant's conviction and remand the case for a new trial.
. Testimonial exhibits are transcripts of testimony or exhibits substituting for trial testimony.
. The majority's reliance on State v. Parker, 208 S.W.3d 331, 339 (Mo.Ct.App.2006), as an example of how a court could be "sensitive to the specific circumstances," is illustrative. In Parker, the court did not allow the fury unrestricted and unsupervised access to a videotape during deliberations, but only allowed the jury to view the tape again in open court. That did not occur here.
. To the extent that the majority suggests that the jury's access to the videotape during deliberations may not have had much significance, given defendant's admissions to two witnesses, I would note that: (1) in the first instance, defendant's statement, "I'm so sorry, I didn't mean it," as D.W.'s mother was chasing and hitting him, was not, under the circumstances, unambiguous in import; and (2) the evidence of defendant's other admission was subject to a significant attack on its credibility, inasmuch as the witness who testified to such had numerous felony convictions and a history of working as a confidential informant.
. See United States v. Maclean, 578 F.2d 64, 66 (3d Cir.1978); People v. Hues, 92 N.Y.2d 413, 681 NY.S.2d 779, 704 NE2d 546, 549-50 (1998).