When Is Hearsay Allowed in Sex Crime Cases?

In a criminal trial, hearsay evidence is typically inadmissible to establish the defendant’s guilt. A hearsay statement is one that is made out-of-court–i.e., not under oath or subject to cross-examination by the defendant–but used to support the truth of the matter asserted. So for example, if a witness testified that someone told her the defendant committed the crime in question, that would be inadmissible hearsay.

But Texas law allows an important exception to the hearsay rule when it comes to certain sex offenses and sex crimes. Under Section 38.072 of the Texas Code of Criminal Procedure, prosecutors may introduce the hearsay testimony of an “outcry witness” in sex crimes cases where the victim is a child under the age of 14 or a disabled individual. An outcry witness is legally defined as the “first person, 18 years of age or older, other than the defendant, to whom the child or person with a disability made a statement about the offense.”

An outcry witness must offer testimony about a specific act as opposed to a general suspicion that sexual abuse may have occurred. The trial judge must also conduct a separate hearing, outside the presence of the jury, to determine if the outcry witness’ proposed testimony is “is reliable based on the time, content, and circumstances.” And the outcry witness may only testify if the victim does as well, or he or she is at least available to testify.

Even If Court Identifies the Wrong “Outcry Witness,” Conviction May Still Stand

The distinction between general allegations of abuse and knowledge of specific acts is often key to determining who constitutes the outcry witness or witnesses in a given case. Indeed, it is possible for there to be multiple outcry witnesses if the accuser discloses allegations of separate illegal acts to different people. And even where trial judges take a more liberal approach to designating an outcry witnesses, appellate courts are often reluctant to reverse sex crimes convictions on that basis alone.

Consider this recent decision from the Texas 14th District Court of Appeals here in Houston. The defendant was charged with two counts of super-aggravated sexual assault of a child between the ages of 6 and 14. The accuser was the defendant’s former stepdaughter. The accuser’s aunt initially confronted the child’s mother about allegations of abuse. The aunt said the accuser told her that the defendant had “touched [her] the wrong way and told her to take her pants off.” When asked about this statement by the mother, the child denied the defendant had done anything to her.

Sometime later, the accuser separately disclosed to her mother that the defendant had placed his “middle part” in her mouth. The mother reported this allegation to Houston police, which proceeded to investigate the defendant. During the course of the investigation, the accuser made an additional disclosure to a forensic investigator working for the police.

At trial, the judge allowed the mother and forensic investigator to testify as outcry witnesses. The jury found the defendant guilty. On appeal, the defendant argued the proper outcry witness was the aunt–the first person the accuser told about the alleged abuse–and therefore the jury should never have heard the mother or investigator’s testimony.

The 14th District said the outcry witness designations were appropriate since “the record reflects that only general allusions of abuse were made to” the aunt, while the accuser provided specific details to the mother and investigator. But even if the testimony of the mother and investigator was improperly admitted, it was a “harmless error” that did not justify throwing out the defendant’s conviction.

Speak With a Houston Sex Crimes Attorney Today

Any sex crimes charge is serious, but when the alleged victim is a child, you can expect prosecutors and police to bring the full brunt of the law against you. The best chance at clearing your name is to hire an experienced Houston sex crimes defense lawyer. Call the Law Offices of Tad Nelson & Associates at (281) 280-0100 if you live in the Houston, Galveston, or League City areas and need immediate assistance.