By Brandy Robinson
First Assistant District Attorney in Austin County
During my 3L evidence class at Baylor Law under the great Professor Gerald Powell, he made one thing perfectly clear: No student could pass his class without reciting the business records exception to the hearsay rule, from memory, on command. He considered the business records exception just about the most powerful hearsay exception that a lawyer could use in trial. He was largely right: Since graduation, I’ve used it countless times.
However, in child abuse prosecutions, a different hearsay exception steals the spotlight and merits the highest level of respect: the outcry witness exception. This exception provides that a child’s first statement to an adult over 18 describing an alleged offense of physical or sexual abuse is admissible in the State’s prosecution for the abuse.[1] This exception is particularly powerful because the outcry witness’s statement may be offered as substantive evidence of the abuse, and the defense is not entitled to any standard hearsay instruction limiting its use.[2] In cases that often rise and fall on the word of few witnesses, outcry testimony is indispensable.
Despite its long-standing usefulness, many judges and attorneys still struggle with the law and its application. Who really counts as the “first” adult? Can the State use only one outcry witness per trial? What hoops does the State have to jump through to secure admission? Much like the business records exception, trial attorneys should commit to learning the basics of how to use and apply this exception, by memory, on command.
Notice required
Outcry statements are useless if the prosecutor fails to properly notify the defense. The State must give the defense the name of the outcry witness and a written summary of what the child told the witness more than 14 days before trial.[3] However, our duty doesn’t stop there. Even if the defense decides not to object to the outcry testimony, a hearing still must be conducted outside the presence of the jury to determine the admissibility of the statement, and the court must find that the outcry testimony is reliable based on the time, content, and circumstances of the statement before it can be admitted.[4]
Who should be included in the notice to defense? It can be tempting to pick one outcry witness early in the process, send out notice, and forget about it completely until trial. Unfortunately, all too often the person whom you believe qualifies as an outcry witness during intake can change drastically during trial preparation. The safest bet is to provide notice to the defense for every person you can identify, adult or not, whom the child has told about the abuse.
Several people may appear, at first glance, not to qualify at all. For example, if a child only generally describes the sexual abuse to an adult, that adult does not qualify as the proper outcry witness at trial.[5] Instead, the proper outcry witness is the first person to whom the child described the details of the offense in a discernible manner.[6] However, it would be a mistake to omit a witness on the notice simply because the child’s statement seems vague. During trial prep, how many times have witnesses told us new details that they never told an investigator before? If we fail to provide timely notice of a possible outcry witness, the testimony will be inadmissible, even if that person turns out to be the only proper outcry witness.
If we notify the defense about every person that the child told, even those we think may not qualify, then we have accounted for the normal changes in details and witness availability that happen in trial prep. To avoid any defense claims that the State is attempting to mislead the defense about the outcry witness, I title my document as a notice of potential outcry witnesses and include a small disclaimer at the end: “By providing this notice, the State does not guarantee that all above witnesses will be placed under subpoena or present for trial.”[7] I also advise the defense in the notice that the law requires an outcry hearing and that all victim statements that the State possesses are available to the defense for inspection and copying in the State’s file.
The hearing
What should the hearing look like? Outcry hearings are limited to the very specific purpose of determining the reliability and admissibility of the outcry statement itself, not the credibility of the child or the outcry witness.[8] Some defense attorneys may view the outcry hearing as their shot at a mini-trial before the trial, but the Court of Criminal Appeals has explicitly disapproved of that idea. The Court has held that the time, content, and circumstances of the statement are the only relevant issues at the hearing, so the defense should not use it to attack the outcry witness’s potential bias, ability to remember, or credibility at the hearing.[9] Briefing the judge on this case before the hearing may prevent him or her from requiring prosecutors to call a vulnerable child victim to the stand during the outcry hearing, because the hearing should revolve around the outcry witness’s testimony alone.
There can be only one? No.
If you ask attorneys vaguely familiar with the outcry rule to describe it, they may tell you it means that the first adult whom the child tells about the abuse gets to testify about it at trial. Many still don’t realize that the State can admit several outcry witnesses in the same trial, depending on the charge and the evidence. Multiple outcry witnesses may testify, so long as each witness describes a distinct event of sexual abuse.[10] The two most common ways this comes up are when the State alleges either multiple abusive acts or multiple victims in the indictment.
Multiple acts. If a victim told one person about one incident of abuse first and later told a different person about another incident, the State may properly offer a different outcry witness for each act of abuse charged in the indictment.
For example, Victim 1, an 11-year-old girl, tells Mom that the defendant exposed his penis to her on a camping trip. Victim 1 tells the Children’s Advocacy Center (CAC) interviewer that the defendant exposed his penis at home and made Victim 1 touch it. Later, Victim 1 tells Grandma that the defendant made her touch and lick his penis, and that this happened from second through fourth grades.
In this case, prosecutors need to provide an outcry notice to the defense that describes Victim 1’s outcry to Mom for Indecency by Exposure; Victim 1’s outcry to the CAC interviewer for Indecency by Exposure and Indecency by Contact; and Victim 1’s outcry to Grandma for Indecency by Exposure, Aggravated Sexual Assault, and Continuous Sexual Abuse.
Before the outcry hearing, it is crucial to interview all witnesses to pin down exactly to which statements and events of abuse they can testify. Based on those pretrial interviews, select the first person over 18 whom the complainant told about each event, then offer only those outcry witnesses at pretrial and trial. Just be careful to meticulously avoid duplicative testimony, as outcry witnesses cannot repeat an outcry about the same event.[11]
Multiple victims. Since the creation of the Continuous Sexual Abuse statute, presenting multiple victims in the same trial has become much more common. To support a conviction for Continuous Sexual Abuse of a Young Child under Penal Code §21.02, the State need not prove the exact dates of the abuse, only that there were two or more acts of sexual abuse that occurred during a period that was 30 or more days in duration, against one or more children.[12] This allows the State to make its case by alleging multiple victims with multiple acts of abuse, where appropriate, in a single indictment.
The determination of a proper outcry witness is event-specific rather than person-specific; therefore, one outcry witness could testify for one victim and event at trial, while a different outcry witness may be proper for a different victim and event.[13] That means that if prosecutors indict on a Continuous Sexual Abuse case alleging multiple acts against more than one victim, then they can provide testimony from multiple witnesses, where appropriate, about each outcry statement that each child has given about each separate event or act charged.
For example, as part of the investigation on Victim 1, the CAC interviewer questions the child’s best friend, Victim 2, who tells the interviewer that the defendant also showed her his penis, had her touch it, and had her lick it several times. Victim 2 also said that when she was younger, she told her cousin that the defendant touched Victim 2’s genitals, and she thinks her cousin was 17 when she told him.
Here, prosecutors would provide outcry notice to the defense that describes Victim 2’s outcry to the interviewer for Indecency by Exposure, Indecency by Contact, and Aggravated Sexual Assault. It would also be useful to provide notice for an outcry of Continuous Sexual Abuse because the victim describes several acts that may have occurred more than 30 days apart (as long as there is some indication the defendant had contact with Victim 2 more than twice in a period of more than 30 days). Even though Victim 2’s cousin was supposedly under 18 when she told him, it would be prudent to provide an outcry notice that describes Victim 2’s outcry to her cousin, just in case Victim 2 told the cousin anything about the abuse after the cousin turned 18.
In a Continuous Sexual Abuse example with two victims and multiple abusive events, the prosecution could conceivably call Mother, Grandma, and the CAC interviewer as outcry witnesses for Victim 1, plus the CAC interviewer to testify as an outcry witness for Victim 2. If Mother testifies at trial to a very specific incident involving one Indecency with a Child by Exposure, then the CAC interviewer cannot testify to that same event, as that would be duplicative. However, the CAC interviewer can testify to any other Indecency by Exposure event—for example, another exposure at a different location and time.
Two caveats to keep in mind: First, remember that the best practice is to provide notice to the defense about all possible outcries, even if they seem redundant or you believe they will ultimately be inadmissible. Next, make sure you offer an outcry witness at trial to testify only to the offenses you have actually charged. If the indictment alleges only one count of Indecency with a Child by Exposure, then it would not be proper to offer an outcry witness to testify about Indecency with a Child by Contact, as that would be an extraneous offense. Likewise, if you have indicted the defendant for Aggravated Sexual Assault with one victim, you may not prove up extraneous acts with a different victim using outcry testimony. The outcry witness exception applies only to the crime charged in the indictment.[14] So, even though you may be able to present evidence of the defendant’s extraneous, uncharged acts of abuse in guilt/innocence under CCP Art. 38.37, you should not use an outcry witness to help prove those extraneous acts.
The uncooperative witness
While Continuous Sexual Abuse cases can present the State with the dilemma of choosing proper outcry witnesses from a plethora of possibilities, a comparatively simple one-count Indecency or Aggravated Sexual Assault case often poses the opposite problem: It can be hard to identify any outcry witness at all.
Anyone who tries child abuse cases either already has, or likely will, run into one inevitable and panic-inducing problem: The star outcry witness either cannot or will not testify to the outcry at trial. So, what do you do when a child insists that she told one witness first, but that witness either refuses to testify about the child’s statement or doesn’t remember it? Can you still use an outcry statement?
Yes, you can. But you might have to do some digging to find the next person in line whom the child told. Texas appellate courts have found that the proper outcry witness under CCP Art. 38.072 is the first adult who can both remember what the victim said and also relate it at trial.[15] Under the appellate courts’ reasoning, if one potential outcry witness is unwilling or unable to testify to the child’s statement at trial, the proper outcry witness would be the next adult whom the child told about the offense who is able to both remember and relate the details.
If a judge is hesitant to get on board with that law, it may be helpful to brief him or her before the outcry hearing on the facts in Carty and Foreman, as well as addressing the legislative intent behind the outcry statute. In Carty, a victim’s mother initially appeared to be the proper outcry witness, but she was under indictment for failure to report the abuse. In Foreman, the victim stated she had told her mother and father about the abuse, but both the mother and father stated they had no memory of it. In both cases, the courts found that the outcry exception to hearsay would be rendered toothless unless it allowed the first witness who could actually remember what the child said and relate it at trial to testify.
The Carty court found the legislative intent to curb child sexual abuse was particularly persuasive.[16] If the statute required the State to offer the very first adult told, without regard to whether that adult would actually testify to the outcry, then the legislative goal of curbing child abuse would be unmet, particularly in cases where a victim’s first confidants are unprotective.
In our example, imagine that Victim 1’s Mother has started dating the defendant again before trial, and Mother now claims Victim 1 never told her about the abuse. Victim 1’s Grandma has dementia and cannot remember what Victim 1 told her. In this example, the CAC interviewer would stand alone as the sole witness who could testify to an outcry statement that Victim 1 made about abuse.
You can see how easily an outcry witness can slip through our fingers and how useful it is to notify the defense about everyone whom a child may have talked to about the abuse, regardless of how much the child disclosed or when. If you lose the star outcry witness before trial, you can pursue appropriate alternatives, as long as you have given timely notice to the defense.
The unavailable witness
What if a witness would have been a perfect outcry witness, had he not been deported? A physically unavailable witness poses a novel problem not expressly addressed by Texas courts yet, but the general reasoning of the appellate courts should apply in the same way. Cases such as Carty and Foreman do not define what constitutes an inability to relate testimony at trial, as their facts address only witnesses who would be excluded due to the content of their testimony rather than physical absence. However, because both cases contemplate witnesses who could have been subpoenaed, they clearly do not require the State to prove total witness unavailability, such as the high standard required by the hearsay exception in Texas Rule of Evidence (TRE) 804.
The stringent hearsay exception in TRE 804 requires the State to prove unavailability by showing that a witness could not appear despite the State’s subpoena and the State’s good faith efforts to obtain the witness. In both Carty and Foreman, the outcry witnesses could have been compelled by subpoena but either refused to cooperate or failed to remember at trial.[17] This implies that the State is not required to prove total unavailability as contemplated elsewhere in the Rules of Evidence. Nevertheless, if you’re facing a deported (or perhaps even deceased) witness, the safest tactic would be to prove up the highest standard of unavailability possible.
Proving a witness has died would likely be as simple as offering a certified copy of a death certificate; however, in the case of a deported foreign citizen, the matter can become complicated. The State cannot compel subpoena process under CCP Art. 24.28 because a deported witness does not reside within U.S. borders or the District of Columbia anymore. Further, the State could not compel process under 28 U.S. Code §1783 because that subpoena power applies only to U.S. citizens or nationals in a foreign country and cannot be used to compel foreign nationals in a foreign country.
Moreover, even if you have good contact information for the witness and the witness wishes to appear, the State cannot request a deported defendant to voluntarily enter the United States without compulsory process because the State cannot (and should not) induce a witness to break federal immigration law. It is a federal misdemeanor to enter the United States illegally, and it is a felony in many instances to reenter, or attempt to reenter, the United States after being removed or deported.[18]
If the trial court is concerned that the State may not have tried hard enough to secure the outcry witness’s testimony, Loun v. State has useful language addressing unavailability. The Loun court held that the State “is not required to engage in clearly futile activities before a trial court can, in its discretion, determine that the State made good-faith efforts to produce a witness at trial.”[19]
Back to our example. Before trial, you learn that the cousin was actually 18, not 17, when Victim 2 told him the details of abuse. However, the cousin has since been deported to Mexico. Can you call the CAC interviewer to testify to offenses that Victim 2 told the cousin about first?
Yes, you likely can. Under Foreman and Carty, the State can show the trial court that a witness cannot appear to relate the victim’s statement at trial. However, be cautious in trying to over-extend this concept. If an outcry witness is merely in another state, he could be compelled to testify via the Interstate Compact, or if he could voluntarily appear, then the prosecution may be required to call him. The same may be true if an outcry witness is a United States citizen in a foreign country who could voluntarily appear or feasibly be compelled to testify under federal law.
Finally, to avoid the problem entirely, if a case heavily relies on an outcry witness whose citizenship is questionable, consider whether a U-visa application would be appropriate to ensure that the witness remains in the country and available to testify.
Conclusion
Remember that when it comes to outcry law, the “first” adult does not always mean first, and it certainly does not mean “only.” Although you may not be able to recite every applicable case from memory, there are a few key lessons that all child abuse prosecutors should know by heart:
1) Notify the defense of every potential outcry witness’s statement more than 14 days before trial, and secure admission through a pretrial hearing.
2) A proper outcry witness must be able to describe the offense in a discernible manner, rather than making a general allusion to abuse.
3) The State can call multiple outcry witnesses, as long as each witness testifies to a separate criminal act charged in the indictment.
4) If the primary outcry witness can no longer remember and relate the victim’s statement at trial, prosecutors may call the next adult who can.
Remembering the basics of the outcry witness law not only provides us with a great hearsay exception, but it also gives us confident command of one of the strongest tools against child abuse in a prosecutor’s arsenal. In cases where every word counts, make sure you have exhausted every possibility to allow the victims’ words to be heard.
Endnotes
[1] Tex. Crim. Proc. Art. 38.07 §2(a)(1), (2); Bargas v. State, 252 S.W.3d 876, 894 (Tex. App.—Houston [14th Dist.] 2008, no pet.).
[2] Buentello v. State, 512 S.W.3d 508, 518 (Tex. App.—Houston [1st Dist.] 2016, pet. ref’d.); Duran v. State, 163 S.W.3d 253, 257 (Tex. App.—Fort Worth 2005, no pet.).
[3] Tex. Code Crim. Proc. Art. 38.072.
[4] Tex. Code Crim. Proc. 38.072 §2(b).
[5] Garcia v. State, 792 S.W.2d 88, 91-92 (Tex. Crim. App. 1990); Hayden v. State, 928 S.W.2d 229, 231 (Tex. App.—Houston [14th Dist.] 1996, pet. ref’d); Rodgers v. State, 442 S.W.3d 547, 552 (Tex. App.—Dallas 2014, pet. ref’d); Brown v. State, 381 S.W.3d 565, 571–72 (Tex. App.—Eastland 2012, no pet.).
[6] Garcia v. State, 792 S.W.2d 88, 91-92 (Tex. Crim. App. 1990).
[7] See Bargas v. State, 252 S.W.3d 876, 895 (Tex. App.—Houston [14th Dist.] pet. ref’d.)
[8] Sanchez v. State, 354 SW3d 476, 486-489 (Tex. Crim. App. 2011).
[9] Id.
[10] Lopez v. State, 343 S.W.3d 137, 140 (Tex. Crim. App. 2011); Cervantes v. State, 594 S.W.3d 667, 673-674 (Tex. App.—Waco 2019, no pet.); Rosales v. State, 548 S.W.3d 796, 806-808 (Tex. App.—Houston [14th Dist.] 2018, pet. ref’d., cert. den’d.); Robinette v. State, 383 S.W.3d 758 (Tex. App.—Amarillo 2012, no pet.); West v. State, 121 S.W.3d 95, 104 (Tex. App.—Fort Worth 2003, pet. ref’d); Broderick v. State, 35 S.W.3d 67, 73 (Tex. App.—Texarkana 2000, pet. ref’d).
[11] See Lopez v. State, 343 S.W.3d 137, 140 (Tex. Crim. App. 2011); Cervantes v. State, 594 S.W.3d 667, 673-674 (Tex. App.—Waco 2019, no pet.; Polk v. State, 367 S.W.3d 449, 453 (Tex. App.—Houston [14th Dist.] 2012, pet. ref’d); Broderick v. State, 35 S.W.3d 67, 73 (Tex. App.—Texarkana 2000, pet. ref’d).
[12] Buxton v. State, 526 S.W.3d 666, (Tex. App.—Houston [1st Dist.] 2017 pet. ref’d.).
[13] See Lopez v. State, 343 S.W.3d 137, 140 (Tex. Crim. App. 2011); Hines v. State, 551 S.W.3d 771, 780-781 (Tex. App.—Fort Worth 2017, no pet.).
[14] Beckley v. State, 827 S.W.2d 74, 78 (Tex. App.—Fort Worth, 1992 no pet.); Chapman v. State, 150 S.W.3d 809, 816-817 (Tex. App.—Houston [14th Dist.] 2004, pet. ref’d.).
[15] Carty v. State, 178 S.W.3d 297, 306 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d.); Foreman v. State, 995 S.W.2d 854, 858 (Tex. App.—Austin 1999, pet. ref’d).
[16] Carty, at 306; citing Garcia v. State, 792 S.W.2d 88, 91 (Tex. Crim. App. 1990).
[17] Carty, at 306; Foreman, at 858.
[18] 8 U.S.C. §1325; 8 U.S.C. §1326.
[19] Loun v. State, 273 S.W.3d 406, 420 (Tex. App.—Texarkana 2008, no pet.); Ledbetter v. State, 49 S.W.3d 588, 594 (Tex. App.—Amarillo 2001, pet. ref’d).