Outcry Witness Testimony in Sexual Assault Trials

When you are being tried for a criminal offense in Texas, the State is generally required to present the witnesses who will testify about the allegedly criminal acts. The right to confront the witnesses against you is guaranteed by Article 1, Section 10 of the Texas Constitution and the Sixth Amendment to the United States Constitution. The right of confrontation guarantees that you or your attorney can challenge the veracity and truthfulness of every witness. However, where, how, and when your attorney can examine the State’s witnesses varies depending on the facts of your case.

If you are charged with a sexual offense or an assault-type offense and the victim of the offense is under the age of fourteen or is a person with a disability then the law allows for a type of witness called an “outcry” witness to testify.

There are four parts to qualifying a witness as an outcry witness. The witness must be under the age of fourteen or have a disability. The crime must be a sexual offense or assault type offense. The witness must have told the person the State is calling to testify the facts used to prove the criminal act. And the person the State is calling to testify must be the first person the outcry witness told. The Texas Code of Criminal Procedure section 38.072 will allow a person to testify depends on two factors. The two factors are whether the facts meet the requirements of CCP Rule 38.072 and whether the judge determines that the outcry witness is truthful at a hearing outside the presence of the jury.

The Texas Code of Criminal Procedure Rule 38.072, lays out special procedures governing the admissibility of statements made by an outcry witness. If the State can qualify a witness as an outcry witness then the State can use someone other than the complaining witness (“victim”) to testify at trial. The outcry witness can tell the jury the facts that the complaining witness told him to prove the criminal act. Whether this “outcry witness” can testify is crucial to your case because the jury will not hear the facts used to prove the criminal act from the person who experienced or witnessed those facts.

Your attorney has an opportunity to protect your rights and challenge outcry witness testimony. A witness who meets the criteria for an outcry witness must testify at a hearing. The purpose of this hearing is to permit your attorney to cross-examine the outcry witness to determine whether his or her testimony is credible. If the judge determines that the outcry witness is credible, then the outcry witness’s statements to the “other person” may be admitted at the trial. This is important because if the outcry witness’s hearsay statements are admitted at trial that means a third party will tell the jury what the outcry witness said.

Your attorney’s responsibilities don’t end with examining witnesses. In addition to examining the witness to determine whether the outcry witness meets the statutory requirements, your attorney must also know how to preserve the record. Preservation of the record is paramount. In Elred v. The State of Texas, defense counsel failed to preserve the record. The Sixth Appellate District Court of Appeals stated that any errors in the hearing to determine whether the witness should be classified as an outcry witness were irrelevant because there was not any error preserved for them to rule on. The trial court’s errors were overlooked at because defense counsel failed to preserver the error. The Appellate Court won’t reconsider the trial court’s determination of who is an outcry witness without having that issue before it. That means you need a lawyer with the experience it takes in an outcry witness situation.

You should consider carefully your choice of lawyer because there are special rules governing the how, what, when, and where of an outcry witness’s testimony. Of equal importance to knowing the special rules surrounding outcry witness testimony are the procedures that must be followed in order to preserve any error for appeal. The attorneys at Guest and Gray Law Firm have the experience to identify when the State may use an outcry witness. In addition to that experience, the attorneys at Guest and Gray Law Firm have the knowledge and skill required to zealously represent you during every phase of a trial. Whether the witnesses against your are outcry witnesses or offering testimony in open court, the attorneys at Guest and Gray Law Firm want your representation to be the best in the State of Texas. If the State of Texas has brought charges against you and you want attorneys who know the law, contact Guest and Gray Law Firm for a consultation.