Juvenile is charged with indecency with a child and prohibited sexual conduct (25.02). Victim is the sister of the juvenile.

Prior to charges being filed, when the outcry is initially made, CPS arranges a forensic interview for the juvenile and victim. The parents bring the two to the interview together. The parents sign a release to have both children interviewed. They are interviewed separately. Victim is interviewed regarding the outcry. Juvenile is interviewed with the intention to determine if he has also been abused. The interview is videotaped. The juvenile confesses to the crime on video.

We have not been able to find any caselaw allowing the video in, or keeping the video out. Does anyone have any insight?

You say they were interviewed separately, so the issue for the juvenile is whether he was in custody and whether the CPS worker was an agent for the police. TFC 51.095(d); Moore v. State, 233 S.W.3d 32, 38-43 (Tex.App.-Houston [1st Dist.] 2007, no pet.). Unless, the juvenile can show BOTH then his statements should be admissible. TRE 801(e)(2)(A).

The victim's statements are likely to be held to be testimonial -- thus triggering Crawford. See Rangel v. State, --- S.W.3d ----, 2008 WL 375446 (Tex. Crim. App. February 13, 2008). If the victim's statements are testimonial, Crawford will require the victim to testify before her out-of-court statements can come in. If you can get around Crawford, the victim's statement may be admissible. TFC 54.031

We use these interviews routinely. Make sure and take the time to prove up the facts surrounding the taping to show the voluntariness and non-custodial nature of the interview, including:

1. Who made the request for the interview;
2. The purpose of the interview (not law enforcement related, but CPS);
3. How the juvenile got to the place of the interview;
4. Was the juvenile told that he was not in custody and could leave at any time;
5. That the juvenile was afforded any amenities he requested, if any;
6. And perhaps most importantly--that after the jvuenile admitted to sexually assaulting/touching a child he was allowed to leave with a parent.

And watch for TDCAA training this summer on Noncustodial interviews, the best way to get a confession and avoid litigation.