We have a murder case where we had an extraneous of the Defendant engaging in pervy behavior with a twelve year old. Trial starts next monday.

We bring the girl in to meet with us to discuss the pervy behavior. She makes an outcry to us of full-on sexual assault. Her intent is to testify at trial and no 38.072 notice will be given or is required.

Defense counsel has now moved to disqualify my trial partner and I (as well as our entire office) from the case as we are "outcry witnesses".

Does anyone have any cases relating to the prosecutors being outcry witnesses and its effect on disqualification. I know it has happened to us in the past where we are prosecuting one sexual assault and learn in the course of interviewing the victim that it happened multiple times.

Did you have an investigator or any support staff present when the victim made her additional outcry?

You might take a look at the TDCAA ethics book by Chip Wilkinson. I'm missing my copy, but I believe it addresses disqualification issues.

[This message was edited by John A. Stride on 07-19-10 at .]

Unfortunately not--that would make it far too easy.

We've been on the phone with Chip this morning.

There are very limited grounds that allow a judge to actually disqualify a DA's office from prosecuting a case. We have constitutional authority and obligation to prosecute cases. They have to have equal authority to disqualify us. If it's just a situation where we should've recused ourselves and didn't, then their remedy is to raise it on appeal. I've handled this issue a few times recently, though none on the outcry issue specifically. I've emailed you a few samples.

You don't intend to call yourself or your partner to testify, right? I venture to say there are tons of things witnesses who tell us that may not be in an offense report, and we will get that witness on the stand and testify about it. The only time there is a disqualification issue is if you, the prosecutor, intends to call yourself to the stand on a material issue, and if you may be called by the defense as a witness adverse to the state -- that is, your testimony would hurt your case and the state, and there may be an issue there.

Doesn't sound like that is the case here. This may or may not be helpful, but check out some cases in which the prosecutor DID end up testifying. Brown is a good one, because it is one in which the defense essentially forced the prosecutor to take the stand and deny that any deal with a witness had been struck:


House v. State, 909 S.W.2d 214 (Tex. App.�Houston [14th Dist.] 1995) aff'd, 947 S.W.2d 251 (Tex. Crim. App. 1997)

Brown v. State, 921 S.W.2d 227 (Tex. Crim. App. 1996)

Stanley v. State, 880 S.W.2d 219, 221 (Tex. App.�Fort Worth 1994, pet. ref'd)

Powers v. State, 165 S.W.3d 357 (Tex. Crim. App. 2005)

Ramon v. State, 159 S.W.3d 927 (Tex. Crim. App. 2004)

First of all--thanks to everyone who posted suggestions and e-mailed documents, briefs and cases regarding this issue. That support is what makes this forum great.

Judge denied the disqualification. Trial Monday.