In our last post, we discussed outcry witnesses and their roles in criminal trials. This post will continue the discussionand outline some defense strategies that have been useful when facing an outcry witness.
When there are allegations of sexual abuse or assault against a child, the Texas Criminal Code allows for the testimony of an outcry witness. In general, hearsay testimony, which in simple terms is testimony wherein a witness testifies about what he or she heard from someone else, is not admissible evidence. However, the Texas Criminal Code provides an exception when a child claims sexual or physical abuse and tells someone else. That first person to hear of the abuse can testify about what he or she heard in court as an outcry witness.
Note that a minor with respect to qualifying as an outcry witness is someone under the age of 17 or someone who is disabled.
Admitting Outcry Testimony
As mentioned, an outcry witness can be admitted only when he or she is the first person to hear of the abuse. If, for instance, a child tells his mother of the abuse and later tells a teacher and the teacher is called to testify, such testimony would be hearsay and would not fall under the outcry exception because the teacher was not the first person to be informed about the alleged abuse.
In such instances, the defense lawyer should object to the admissibility of that outcry witness. Where this can become grey is at what point was the child’s statement to the adult considered an outcry. Perhaps the child mentioned something to his or her mother, but it is not considered an outcry until the child told the teacher. The prosecutor will usually argue that the initial person who heard did not hear an outcry statement.
In the 1990 Texas Appellate case of Garza v. State, the court opined on this matter that the outcry statement must be one that “in some discernible manner describes the alleged offense.” In the above example, when the child discussed the abuse with his or her mother, did the child describe the abuse in a “discernible” manner? The prosecutor will claim that the statement was mumbo jumbo; the defense attorney will counter that the outcry existed before the teacher knew about it.
When an outcry witness testifies, there is usually an emotional aspect to the testimony. In fact, it is often very powerful testimony upon which the decision of innocent or guilty will hinge. Therefore, if the outcry witness has a hazy recollection of the child’s statement then, by law, the statement should not be admissible.
In circumstances in which the mother, who is an outcry witness against her ex-boyfriend for abusing her children, has a history of drug use and prostitution, she is likely to be a weak witness. Her drug abuse may cause her judgment to be obscured and connections to the sex industry may have been pushed on the child. This issue will usually come out during the course of a trial.
Accused of a sex crime against a minor? You need an aggressive defense. Contact the law firm of Christopher Abel, a Dallas-area defense attorney.
(image courtesy of Aaron Burden)