I have a 3 year old victim who made an outcry of sexual abuse. The 3 year old is obviously too young to testify. I want to present the Outcry Witness to testitfy to the jury about the outcry. Does anyone have a motion and order to do this?
Under CCP 38.072, you just need to file notice of your intent to introduce the outcry statement. I will email you one. However, your bigger issue/hurdle is, from what you've said, the fact that 38.072 Sec. 2(b)(3)also expressly states that the outcry statement is only admissible if "the child testifies or is available to testify at the proceedings in court or in any other manner provided by law." So I think in order to get it in, you're going to need to demonstrate to the court that even if you don't call the child to testify, the child could do so. I'd be worried that if the defense attorney detects that the child might not be able to testify, he might attempt to call the child outside the presence of the jury, have the poor kid clam up, then claim she's unavailable so the outcry doesn't come in....
Your bigger problem is Crawford! While the state law might help you get it in, you can't use it unless the child testifies or you are violating Crawford. Mere presence does not satisfy availability according to the last thing I have seen. Has anything changed that?
Posts: 127 | Location: TX | Registered: March 05, 2003
Depending on the nature of the outcry statement, it may not be "testimonial," under Crawford. For example, if the child runs crying to mommy and says "Daddy just did ___ to me!" it is unlikely that the statement was made in anticipation of a lawsuit. If the statement was made to a CPS worker or CAC interviewer investigating an allegation of some kind of abuse, then Crawford is a bigger problem.
Posts: 622 | Location: San Marcos | Registered: November 13, 2003
As long as your outcry witness is Mommy or Grandma or a neighbor, not the forensic interviewer, then you don't have a Crawford problem whether it's an excited utterance or not. The majority of the outcry I've seen is decidedly non-testimonial.
Posts: 1115 | Location: Waxahachie | Registered: December 09, 2004
I'm with you Andrea. I don't think I've ever had an outcry that would have been considered testimonial. But your biggest problem lies with your statement that the child is obviously too young to testify -- If she's too young to testify, then she's not available, and if she's not available, the outcry doesn't come in.
If you can't bluff out a good plea, rather than giving it up, you might see about your 3 year old testifying. Depending on your case and your child, the child could tell about what happens if you tell a lie or story, identify pictures of family members, including the defendant, identify body parts on the little kids diagram, etc. You might need a forensic interiewer to help you prepare the questions in terms the child could understand and respond to.
I don't have access to Westlaw right now to get the cite, but as far as I know, Haufler v. State, 04-97-00771-CR, decided 4/14/1999, pet denied would still be good law even under Crawford.
Posts: 130 | Location: Texas | Registered: October 12, 2006
and ask if he/she knows of someone with close circuit television capabilities. We had a 4 yo who clammed up on us on the stand. We predicted it would happen, even though she was very capable of telling what happened at our pre trial meetings. When it happened, we were ready. The DL was able to cross examine her, the D was able to sit outside and watch. The DL was able to confer with his client and follow up with more questions. D got his right to confront the W and W was spared having to look at him and 12 strangers. It wasn't easy, but it was possible, even in our small county.
Posts: 176 | Location: Hempstead, TX, USA | Registered: June 02, 2005