An “Outcry” statement is often a critical part of the State’s case in the prosecution of alleged child sexual abuse. This is where the State calls an adult witness to tell the jury about what a child (younger than 14) allegedly said to the adult about a sex crime. This hearsay relaying a child-witness’s description of child sexual abuse allegations is commonly known as an “outcry.” This testifying adult is commonly known as an “outcry witness.”
In Texas, the Code of Criminal Procedure allows for the admission (use as evidence) of hearsay statements of certain alleged abuse victims. Generally, “hearsay” is any statement made outside of court offered into evidence to prove the truth of the contents of the out-of-court statement. A “statement” is communication by speaking, writing, or nonverbal conduct. Hearsay is not allowed as evidence at trial except in situations where specific laws or rules allow for it. If very specific requirements are met, a Child Outcry Statement is allowed into evidence by Texas Code of Criminal Procedure Article 38.072.
For a statement to qualify, it must:
- Describe the alleged sexual or assaultive offense (Art. 38.072, Sec. 2(a)(1)(A));
- Have been made by the child against whom the charged offense was allegedly committed (Art. 38.072, Sec. 2(a)(2)); and
- Have been made to the first adult to whom the child made a statement about the offense (Art. 38.072, Sec. 2(a)(3)).
If the “outcry” meets those requirements, then the statement is exempt from the rule against hearsay only if:
- The party (usually the State) intending to offer the out-of-court statement provides notice to the other party (usually the Defense) of its intention to do so (Art. 38.072, Sec. 2(b)(1)(A));
- The notice contains the name of the witness through whom it intends to offer the statement (Art. 38.072, Sec. 2(b)(1)(B));
- The notice contains a written summary of the statement (Art. 38.072, Sec. 2(b)(1)(C));
- The notice is served at least 14 days before trial (Art. 38.072, Sec. 2(b)(1));
- After a hearing, the trial court finds that the out-of-court statement is reliable based on the time, content, and circumstances of the statement (Art. 38.072, Sec. 2(b)(2)); and
- The declarant child is available to testify at trial (Art. 38.072, Sec. 2(b)(3)).
Multiple Statements or Rolling Outcry
In cases where the State claims a child has been victim of more than one instance of sexual assault, it is possible to have more than one proper outcry witness. When the State wants to offer this evidence through the testimony of multiple witnesses, the State must establish a predicate that is event-specific rather than person-specific. Lopez v. State, 343 S.W.3d 137, 140 (Tex. Crim. App. 2011). Hearsay testimony from more than one “outcry witness” is admissible under Article 38.072 only if the State established by a preponderance of evidence that the witnesses are testifying about different events. There may be only one outcry witness per event.
A “rolling outcry” is where a child describes only part of an instance of sexual abuse, then later describes another part of the incident. Sometimes these descriptions are made to multiple people. Importantly, a “rolling outcry” is not just the retelling of the same episode with greater detail.
A trial court cannot admit an “outcry” unless the State meets its burden to comply with the mandatory Article 38.072 predicate.
The requirements of Article 38.072 are mandatory. Long v. State, 800 S.W.2d 545, 546 (Tex. Crim. App. 1990). The State is required to lay the proper predicate for the admissibility of evidence under Article 38.072. Garcia v. State, 792 S.W.2d 88, 95 (Tex. Crim. App. 1990). The defense should be filing a motion to suppress this evidence, and try to get the court to allow a pretrial evidentiary hearing.
Preliminary questions of the admissibility of evidence are for the trial court to determine. TEX. R. EVID. 104(a). The State, as the proponent of hearsay evidence, has the burden of proving to the trial court, by a preponderance of the evidence, that testimony qualifies as an exception. Alvarado v. State, 912 S.W.2d 199, 215 (Tex. Crim. App. 1995) (Citing Rule 104(a) and Rule 801(e)(2)(b)); Bourjaily v. United States, 483 U.S. 171, 175 (1987); Vinson v. State, 252 S.W.3d 336, 340 (Tex. Crim. App. 2008). When a defense lawyer properly objects, it is a legal error for the the trial court to admit an “outcry” for which the State failed to lay the proper mandatory predicate for admissibility. Dorado v. State, 843 S.W.2d 37, 38 (Tex. Crim. App. 1992).
Unfortunately, the State and many courts often play fast-and-lose with these rules.
If a child has made statements to multiple adults, often the State will evaluate which of those adults will make the best witness and call their “best” witness as the outcry witness. This practice ignores the legal requirement of first adult. This may put a criminal defense attorney into a difficult position, because to make a record (solidify an issue for appeal) the lawyer may have to present to the judge the testimony of multiple witnesses. This is difficult because judges often become agitated when the defense lawyer wants to take the time to put on evidence. Also, the necessary witnesses may be State’s witnesses and not friendly to the defense. It is important that a lawyer try to have this hearing in advance of trial and have all witnesses served with a subpoena.
The State can offer multiple hearsay witnesses to testify about the same episode of alleged abuse if there was a “rolling outcry.” However, when the State wants to just parade multiple witnesses in front of the jury to tell the same story, then there is a problem. This is another issue that a defense attorney may have difficulty confronting. The judge doesn’t know the facts of the case. So, the judge doesn’t know off-hand whether a witness is talking about the same thing as another witness. A defense lawyer needs to educate the judge on the relevant facts, and this is often best accomplished by filing detailed written pleadings before the hearing.
Why is it important?
The rules against hearsay protect against impermissible bolstering. “Bolstering” evidence is offered solely to convince the jury that a particular witness or source of evidence is worthy of credit. This evidence is offered without independently and substantively helping answer the question of whether a fact of consequence is more or less probable. Usually, prior consistent statements of a witness offered as substantive evidence are bolstering and objectionable as hearsay.
In most child sex crime cases, especially Indecency with a Child, the only real issue at trial is the credibility of the child that is accusing the defendant. The State will do everything within its power to bolster that testimony.
Sometimes the child witness has credibility issues. Maybe the child is a teen that is resentful of a stepparent and using the allegation to get the stepparent out of the house. Sometimes a child is coached by a parent to get leverage in a family law case. Regardless of the credibility issues, when the State can present more than one witness to tell the same story, regardless of whether the source of information is the same, a jury is more likely to find the story believable.
Also, hearsay by its nature limits the defense’s ability to cross-examine. When a witness is testifying about what someone else (declarant) said, the witness does not have personal knowledge of what the declarant was thinking, feeling, or remembering. The witness telling the jury about the hearsay may believe what they were told by the declarant, and so the witness comes across as credible. That perceived credibility rubs off on the declarant from the witness.
A lawyer cannot be scared to irritate the judge when litigating these issues. Attention to detail can often make all of the difference. The State’s use of an outcry witness should be challenged in every child sexual abuse case.