The question I have is whether the child's video taped interview with a child advocacy worker is admissible when the child testifies under 38.071. The rules of evidence 801(e)(1)(D) appears to make it admissible even if child testifies, yet caselaw I have read and 38.071 appears to only to allow admission of this tape if the child is unavailable to testify. Maybe I am misinterpreting something here, but it seems there is a conflict. Can you comply with 38.071 and 801(e)(1) at the same time?

I don't think 801(e)(1) applies to the situation. That rule would only make the prior statement admissible if it was inconsistent with the child's testimony at trial and was given under oath. This is a hearsay exception that only applies when the witness who made the statement testifies. Portions of the child's videotape might be admissible as impeachment under Rule 613 if the child's testimony during trial is inconsistent with the videotape, however, I don't know why the prosecutor would want to use it. The defense attorney is more likely to be the one utilizing this approach. Bottom line is that the child's videotape is hearsay and is not admissible unless 38.071 applies and is complied with. At least that's my opinion.

Sorry, I was looking at the wrong section.

If the child is called by the state, is cross examined and the tape would show a prior consistent statement it can be used.

I'll edit this with a case tomorrow. (The brief is at the office.)

Briggs v. State, 789 SW2d 923, the victim testified, was crossed, and the tape was tendered. The trial court did an in camera review and allowed the tape.

But there are dangers; Foty v. State, 755 SW2d 195. The victim's video was played over defense objections and then the victim was tendered for cross examination.

See also Chambers v.State, 755 SW2d 907 (overruled by Chambers v. State, 805 SW2d 459) and Mallory v. State, 752 SW2d 566

[This message was edited by Gordon LeMaire on 09-05-03 at .]

I have always believed that 38.071 is frought with confrontation issues. But see: Briggs v State, 789 SW2d 918, (Tex. Crim. App. 1990). The problem with Briggs is that the D lawyer was asleep at the switch and failed to object to the admission of the video taped forensic interview of the child victim. In Briggs, the court modified (?) its holding in Long v State, 742 SW2d 302, (Tex. Crim. App. 1987), that 38.071 Sec. 2 was facially unconstitutional but left open the question of whether, in a given case, the statute may operate to deprive a D of confrontation, due process and/or due course of law. I'm not aware of any cases on point other than these, but often the defense will make a mistake by going into a portion of the video without properly laying the predicate for impeachment with some minor inconsistency between the child's testimony and the video. The rule of optional completeness will usually allow you to put in the remainder of the interview.

While these cases are helpful they do not clearly answer the question in my case. Child testifies, basically covers all of the elements of the crime, is not impeached on the details of the crime although somewhat vague on the details. It still seems caselaw says the child must be delcared unavailable or there must be some necessity, i.e. child did not include all elements necessary for the conviction, that the tape is inadmissible. We didn't admit the tape in this case and got a guilty verdict anyway, but have another trial soon where we expect the defense attorney will hammer the witness and try to confuse so child recants, is impeached, or shows some type of improper motive, recent fabrication, etc (child is mentally retarded, but we expect will be found competent to testify and available).

If the things you mention occur in the upcoming case then your theory of admissibility will be seperate from 38.071. It will be a prior inconsistent/consistent statement or some other evidentiary theory. If you are worried about substantive evidence which you fear the child will not give you on the initial direct exam, consider using the outcry, excited utterance or statements made to a medical or mental health professional for the purpose of treatment and diagnisis. Some courts have ruled that statements made by the parent or guardian for the medical exception are admissible. Also consider the business record exception if you have medicals. Even though Briggs leaves open the possibility that 38.071 is still a viable statute, I think it is, in practice, a dead letter.

If your forensic interview qualifies as a 38.072 statement (1st statement the child made to an adult "that describes the offense") why couldn't you show the video of that statement?

The cases say that the outcry statement must be more than general allegations of sexual abuse. In my experience, many children make general statements of abuse to their mother or teacher, and they don't get down to brass tacks about the details--such that it qualifies as as a 38.072 statement--until they are interviewd by a cop or social worker who encourages the kid to give details of what happened. If this interview is declared by your trial court to be the 38.072 outcry, and it was video taped, it seems to me the video of the outcry statement should be admissible the same as a video of a bank robbery would be admissible, or the video of a crook's confession or the video of any piece of otherwise admissible evidence would be admissible.

Am I right?

Terry, I think the short answer is "yes." However, because most videos contain information extraneous to the outcry you would probably have some relevance and 403 problems.

Regardless of the legal possibilities of videotaped child testimony, prosecutors should be making a strong effort to provide live testimony by the child. The 6th Amendment is perhaps the defendant's strongest protection in trial and courts are loath to read it to mean that a defendant can't confront face-to-face his accuser.

I believe it to be the very rare case in which a child can't testify. Even then, there are alternatives, such as a screen or close-circuit video testimony, that should be pursued before trying to introduce a videotaped statement.

38.072 REQUIRES that the child be available to testify and the cases say "availability" means called to the stand by the state. Even in the rare case where the video comes in as an outcry statement you'll still have to call the child.