Does anyone know off hand what the section of the CCP is that automatically gets in a video of a child witness?

Kimberly Gonzalez

CCP 38.071?

There is no "automatic" admissibility of CAC interviews but they can be admitted if certian conditions are met. See CCP art. 38.071.

Watch out because 38.071 requires the witness to be "unavailable" while Crawford requires the witness to be "available." You may have to go under 38.072 and introduce the testimony and not the actual video unless the defense opens the door for you under Rule of Evidence 107 which can trump.

So if we have a victim of injury to a child, and can only use 38.071, how do we get a child's video interview in when she no longer remembers what happened, and is therefore unavailable.

Has there been an attempt to change 38.071 to make it more simple and consistent with the requirements of Crawford?

quote:

---

Originally posted by pkdyer:
So if we have a victim of injury to a child, and can only use 38.071, how do we get a child's video interview in when she no longer remembers what happened, and is therefore unavailable.

---

Is your child old enough to recall going to the CAC and making a statement?

If so, I wonder if you could have the child testify that he/she made a statement at the CAC, that they were telling the truth at the time, that they don't recall what they said,(but the forensic interviewer will under 38.071 or 38.072) and then offer the video on redirect via 801(e)(1)(b) as a prior consistent statement to rebut fabrication, improper influence or motive.

Would that work on your facts?