Let me lay out what we have.

We have an indecency by contact case in which our CAC interviewer is also our outcry witness.

We want to be able to play the CAC interview at trial because of the spontaneity in which the child describes the abuse comes across in a powerful way (the child describes the abuse as something "normal" in their home)

BOTH our CAC interviewer (outcry witness) AND the victim are going to testify at trial (avoiding any "crawford" issue with playing the tape) However, we do have some possible recantation issues with the victim as she has started to back peddle on what she said in the CAC interview.

Three Issues:

1. If our victim is cooperative at trial and testifies substantially to what she said in the CAC interview, is there anyway for us to still play the tape? (overcoming a prior consistent statement objection? etc.)

2. The defense attorney has requested a certified copy of the transcript of the CAC for cross examination purposes. If he attempts to impeach the victim or questions about specific statements the victim made, does that open the flood gate for optional completeness to play the whole video, or rebutting recent fabrication under 801(e)(1)(B)?

3. Assuming the victim denies making the statement I believe I can play the video if she sticks to the "defendant never touched me recantation" However, I anticipate the testimony will be "yah i said that BUT...." and then try to minimize or show how she didn't really say what she meant, etc

My research into westlaw has yielded some okay cases, but not quite "on the nose" caselaw analogous to my facts and potential issues. Any help the community could provide would be greatly appreciated.

You might want to check out Bays v. State, 396 SW3d 580, a CCA opinion that came out in April.

In light of that case, I'd be pretty careful about trying to admit the video

Thank you for your response LT, however I think that case is a little distinguishable from our facts because in that case the Outcry witness DID NOT testify about the abuse at all.

The State called her as a witness and then sought to introduce the video tape through as a substitute for the live testimony of the outcry witness.

That is naked hearsay and won't suffice under the CCP because the "outcry statute is limited to live testimony of the outcry witness" and exactly the reason why the State lost the PDR to the CCA.

Playing the tape, regardless whether child testifies at trial or not, is naked hearsay. You need a recognized exception. Simply saying that the recording is a much better version of the story given through live testimony does not focus upon any of the recognized exceptions.

Well put JB, which is the exact purpose of this post. I am searching for an exception or caselaw that other seasoned prosecutors have used in cases similar to my facts and issues. I understand the law but any input is of course appreciated.

Does Graves v. State, 176 S.W.3d 422 (Tex. App. Houston [1st Dist.] 2004, pet. stricken) help you at all?

Also, I think if she admits to making the statement,but then tries to explain it away you don't get to put on extrinsic evidence of the statement. But if it's a partial denial then those portions contradicting that denial can be admitted. That's REALLY going to depend on how the testimony plays out so it might be hard to find a case directly on point for how you anticipate the testimony going.

Note, though, that in Willover v. State, 70 S.W.3d 841 (Tex. Crim. App. 2002) the Court upheld the trial court's exclusion of the entire videotapes where the defendant failed to limit his offer of evidence to only those portions that were applicable. Optional completeness works when you have to have the rest of the tape in to show the context of the statement, but given that your statement is only coming in to impeach rather than the truth, your ability to rely upon context to get the persuasive portions of the tape in may be limited. But this last part is just me going off the dome.

Good luck!

This message has been edited. Last edited by: David Newell,

David,

Thank you for you reply, the graves case is especially helpful.

Also, Rodarte v. State, 2006 WL 2201558 might be helpful (in spite of the fact that it's unpublished).
I introduced a CAC video in that case under the rule of optional completeness and it was upheld.