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Outcry Witness

Oct 15
Love1

Outcry Witness Statements Upheld by Fort Worth Court

By Sex Crimes

Hearsay Statements Admitted in Child Sexual Assault Trial. Affirmed on Appeal by Fort Worth Court.

Gonzales v. State – 2nd Court of Appeals (Fort Worth) 2015

Pablo Gonzales, Jr. was convicted on one count of aggravated sexual assault of a child and three counts of indecency with a child. He was sentenced to life in prison by the jury for the sexual assault case and twenty years imprisonment in each of the indecency cases.

The defendant lived in a house where drug use was rampant and people would come in, often leaving their children for him to watch.  One of the witnesses against him, given the pseudonym T.P., was the mother of two of the girls that claimed to be sexually abused by defendant. Generally, hearsay testimony, testimony from one person about what another person says, cannot be admitted into evidence against a defendant. Here, the trial court applied an exception to the hearsay rule for an “outcry witness.” An outcry witness is the first person a child tells about abuse that the child received and this testimony by the outcry witness can be admitted.

The defendant in this case argued that the outcry witness testimony should not be allowed into court because T.P. admitted that her memory was fuzzy as a result of her drug use. Defendant also argued that T.P.’s testimony satisfied few, if any, of the nonexclusive factors the court considers in determining the reliability of an outcry.

When Can an Outcry Witness Statement by Admitted Over Defense Objection?

Article 38.072 of the code of criminal procedure provides a mechanism that requires the trial court to determine on a case-by-case basis if outcry witness testimony reaches the level of reliability required to be admissible as an exception to the hearsay rule.

Indicia of reliability that the trial court may consider [under article 38.072] include (1) whether the child victim testifies at trial and admits making the out-of-court statement, (2) whether the child understands the need to tell the truth and has the ability to observe, recollect, and narrate, (3) whether other evidence corroborates the statement, (4) whether the child made the statement spontaneously in his own terminology or whether evidence exists of prior prompting or manipulation by adults, (5) whether the child’s statement is clear and unambiguous and rises to the needed level of certainty, (6) whether the statement is consistent with other evidence, (7) whether the statement describes an event that a child of the victim’s age could not be expected to fabricate, (8) whether the child behaves abnormally after the contact, (9) whether the child has a motive to fabricate the statement, (10) whether the child expects punishment because of reporting the conduct, and (11) whether the accused had the opportunity to commit the offense.

The defendant claimed that the outcry lacked reliability, specifically because of T.P.’s drug use and generally because it was short, lacked detail, and was uncorroborated. The 2nd Court of Appeals (Fort Worth) agreed that the statement was short, but pointed out that it was also very clear, specific, and unequivocal. A trial court’s decision to admit evidence will not be disturbed on appeal absent a clear abuse of discretion. A trial court has only abused its discretion if its decision falls outside the zone of reasonable disagreement.

The 2nd Court of Appeals went on explain that even if they concluded that the trial court abused its discretion in admitting the testimony, such error would not rise to the level of constitutional error and should only be reversed if the error affected the Defendant’s substantial rights. The Court noted the victim testified at trial, and her testimony both corroborated T.P.’s testimony regarding the outcry and provided greater detail.  For this reason, the Court held that even if the trial court abused its discretion by admitting the outcry witness testimony, the error would be harmless.

Even if someone admits to their memory not being completely accurate due to prominent drug use, their outcry testimony can still be brought into court if the person who made the statements to them originally, corroborates them. This may make it extremely hard to overturn a conviction with the Court of Appeals because even if outcry testimony may be weak or lacks reliability, the Court will likely not overrule the case so long as others corroborate the testimony. This may also make it extremely hard to keep out any outcry statements.

Dec 21
Love0
Outcry Witness Statement

Closing the Loophole on Outcry Witness

By Sex Crimes

The Right to Confrontation and the Outcry Witness

Sanchez v. State – Recently released and designated for publication, the Texas Court of Criminal Appeals considered the admissibility of outcry statements by alleged child sexual assault victims.

In this case, appellant was charged with sexually abusing his step-daughter. The step-daughter had made an outcry statement to a witness who ultimately became unavailable. The outcry witness was available at a pretrial hearing and testified as to the extent of the outcry and as to the statement made to her. At trial, after the State discovered that the outcry witness was unavailable to testify, the prosecutors moved the court to read the testimony that was taken during the pre-trial hearing to the jury. Over defense objections, the trial court allowed the testimony to be read to the jury. Appellant was convicted on multiple counts of sexual assault, and received concurrent sentences of 28, 15, 7, 5, and 5 years for his convictions.

The defense’s primary objection at trial was that by allowing the prior testimony to be read to the jury, the court violated Sanchez’s Sixth Amendment right to confrontation.

Article 38.072 of the Code of Criminal Procedure allows a victim’s out-of-court statement made to an outcry witness to be read into evidence so long as that statement is a description of the offense and is offered into evidence by the first adult the complainant told of the offense. The problem with the case against appellant was that, while the hearsay of the victim’s statement to the outcry witness would have been admissible under 38.072 of the Texas Code of Criminal Procedure, reading the testimony of the unavailable outcry witness to the jury at trial was hearsay within hearsay. The Court noted that “in order to introduce testimonial hearsay over a Sixth Amendment objection, the State must show that the declarant who made the out-of-court statement is unavailable, and that the defendant had a prior opportunity to cross-examine that declarant.”

The Court boiled the case down even further by concluding that the ultimate issue in this case was whether appellant had an adequate opportunity to cross-examine the outcry witness at the Article 38.072 hearing. The Court stated that the only relevant question at an Article 38.072 hearing is whether, based on time, content, and circumstances of the outcry, the outcry is reliable. Because an Article 38.072 hearing does not provide an adequate opportunity to cross-examine an outcry witness’s credibility, the Court held that admitting the testimony from the pre-trial hearing to be read to the jury violated appellant’s Sixth Amendment right to confrontation. The court reversed the case and remanded it to the Court of Appeals for an analysis of harm caused by the unconstitutional admission of the outcry witnesses’ pre-trial testimony.

With this holding, the CCA sent a message to the State that it won’t be allowed to “backdoor” hearsay if the outcry witness becomes unavailable at trial.