Working an appeal in a child sex case. Multiple victims and all testified. This was a Bench trial. The CAC videos of the children were admitted into evidence and defenses objection was to leading questions being asked during the interview. Objections were overruled and no other objection raised. On appeal - defense is claiming Crawford violation.

Is it waived because defense didn't raise it at trial? (Case tried post Crawford)

Does Crawford really matter when the children _did_ testify, thus an opportunity to cross-examine was given?

You are right. Crawford deals with a hearsay statement - an out of court statement - and the accused person's right to confront the witness that made the statement. Since the victim's testified, it is not hearsay, and the accused had his confrontation right. But one has to wonder why the prosecutor admitted the videos. Also, he failed to preserve error by not lodging that specific objection; since his only objection was leading. Has he made the argument that his confrontation right was violated because he did not get to cross-examine the interviewer or the victim?

It's still hearsay even if the children testified. (I'll assume the prosecutor had a valid exception, or at least from the question that the appellant isn't objecting to that.) It's just not a confrontation violation.

I'd be interested to know, as would many other child abuse prosecutors, as to what the theory of admissibility was in that case.

On the writ that follows your appeal, I suspect the issue will be ineffective assistance relating to the admission of the interview.

And why the bench trial? Please tell us more.

Me too, Greg.
It's a rare day when I've actually gotten the videotape into evidence (only once actually, and it was under Rule 107 b/c the defense expert talked at length about the substance of the interview during her direct), so I'm always interested in other prosecutors' theories of admissibility for them.

Lots of quetions! I will try my best to answer.

Defendant requested a Bench trial. Defendant had prior conviction for Sx.aslt. of Child and had little to lose as we were dealing w/ multiple children as victims. Defense was looking at legal arguments which might sell better to the court than a jury.

Theory of admissiblity. There was none given, I know we have been successful at admitting these tapes after the victims have testifed and been cross examined under TRE 801(e)(1)(b) improper influence, motive and/or fabrication. It is kind of hard for the defense to cross a child victim like this w/o raising the spector of improper influence by someone (law enforcement, CAC, parents, etc.) or that they are making the whole thing up and their stories have changed.

This was never addressed at trial as defense's only objection was that the videos had leading questions in violation of art. 38.071. The Court over-ruled said objections after reviewing the tapes. Same objection for each child's video. Again each child did testify and the interviewer testified as well. It was through the interviewer that the tapes were offered.

Defense is raising inadmissible hearsay and Crawford. I wanted to deal w/ the Crawford as a red herring before attacking inadmissable hearsay.

Absent a hearsay objection I think it is waived. If his 38.071 objection is enough (and the interviewer was listed as an outcry witness) then I am thinking Harmless error.

As far as the hearsay objection you have two answers.

One the information (presumably) came in from the victim's testimony.

Two the trial court is presumed to only consider evidence that is proper

quote:

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Originally posted by Gordon LeMaire:
As far as the hearsay objection you have two answers.

One the information (presumably) came in from the victim's testimony.

Two the trial court is presumed to only consider evidence that is proper

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Yes, those are areas I intended to go. The videos did provide some information that the child did not testify to, however, so I am unsure as to that.

As to the trial court is presumed to only consider evidence that is proper - do you know of a good site for that. I have always heard that as a sort of legal maxim - never had to defend the statement.

One thing I would note is that since your tape was not being offered under 38.071 sec. 5, subsection 5 (a)(4) provided no basis for an objection. The objection would have to have been based on Rule 611(c). Interestingly, that rule applies only to the direct examination of a witness (which was not the context of the tape recording). In any event, a violation of Rule 611(c) rarely, if ever, leads to reversible error (maybe particularly this true with respect to a bench trial). The other issues may crop up again after the appeal, but have not been preserved for review on direct appeal. Some criminal defense attorneys should probably daily say a prayer of thanks for the holding in Peeler and Golden, 78 S.W.3d 488.

Careful! The maxim that the appellate court presumes the judge disregarded any improper evidence was overruled. See Gipson v. State, 844 S.W.2d 738 (Tex. Crim. App. 1992). It's still a civil rule, as far as I know, so it gets confused. (There are a few more recent cases where the judge specifically says he's disregarding improper evidence, but there isn't a general presumption anymore.)

Thanks for that heads up. I know I saw that maxim quoted in a court's opinion and I thought it was recent. I will treat that as no longer being appropriate (except for the civil briefs.)

I have dealt with video tape admissibility issues on a lot of appeals from child abuse convictions. Email me at martin.braddy@verizon.net, there are some cases that you need to be aware of, but private would be better.

Since you brought it up. I would be interested to know how many prosecutors would be in favor of admending the "Outcry Statute" to allow for the admissibility of the forensic interview video from the CAC's. I plan on working with the Child Advocacy Centers of Texas to accomplish this next session (never too early to start working on next session).

Martin, as a member of the board of directors for CACTX, I would be glad to listen to your idea on video admissibility. CACTX does pick issues to support during a leg session and is always on the lookout for anything that would help the kids.

Martin I will email you, but on the other topic I certainly could provide some concrete examples of why CAC outcry tapes should be admissible under the outcry statute.

I have seen cases involving assaults of children who are very young, where an outcry was made but at the trial sometime later it was difficult for these very young children to recall due to the effect of post traumatic stress syndrome. Thank goodness for excellent police and SANE work that led to convictions in those cases, but this is an area that needs some legislative attention.

Dr. Lee Carter, a fantastic expert HQ'd in Waco who has been recognized time and time again by CAC Texas, would be a good person to present data to the Leg on this issue. He's worked with me on several cases, at least one of which involved a defense expert attacking the "suggestive nature" of the interview of the child.

Making the CAC video admissible would be a giant step in making these case more prosecutable and would lead to more convictions. I am highly in favor of it.

I have a case that has been retruned on appeal, the children were 3 and 5 at the time of the offense, now it is 4 years later and they are having a hard time remembering. Can I play the tapes for the jury, and under what theories of admissibility?

I don't think you can get around a hearsay objection to the tapes. See Scott v. State, 222 S.W.3d 820, 830 (Tex.App. -- Houston [14th Dist.] 2007, no pet.).

If the children testified in the prior trial and cannot now remember, you might be able to get their prior testimony in under TRE 804(a)(3), & (b)(1).

The Scott case dealt with the videotape actually being the outcry "witness" and the defendant failed to object. I think I can get around hearsay (see above about 801(e)(1)(B) - statement that rebuts claim of fabrication or improper influence).

Any other ideas?

If your victim testifies about what happened and the defense opens the door with questions implying recent fabrication, then sure, TRE 801(e)(1)B) would work great. See Cathy Cochran, Texas Rules of Evidence Handbook at 787-88 (5th ed 2003) (discussing three-pronged predicate for admission under 801(e)(1)(B)). I thought the problem was that your victim didn't remember.

If you're asking about a confrontation issue, I think you're ok:

A close reading of Crawford reveals that its holding applies only when the extrajudicial testimonial statements of a witness who does not testify at trial are sought to be admitted. Id. at 59, 124 S.Ct. at 1369. In Crawford, the Supreme Court stated that �when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements.� Id. at 59 n. 9, 124 S.Ct. at 1369, n. 9. At trial, Lopez testified and Appellant had the opportunity to and, in fact, did cross-examine her; therefore, the reasoning of Crawford does not apply. See Crawford v. State, 139 S.W.3d 462, 465 (Tex.App.-Dallas 2004, pet. ref'd) (holding that testimonial hearsay was admissible when declarant testified at trial and was subject to cross-examination). (from unpublished FW case)