Article 38.072 of the Texas Code of Criminal Procedure—more commonly known as the “outcry” statute—is thorny legal terrain in child sex cases.
The statute was enacted in 1985 as an exception to the longstanding prohibition against hearsay testimony in a criminal trial. It allows the first adult to whom a child 14 years of age or younger “outcries” about allegations of sexual abuse to testify about the statements the child made to the adult concerning the abuse.
Rule 801(d), Texas Rules of Evidence, defines hearsay as an out-of-court statement “offered in evidence to prove the truth of the matter asserted.” Texas jurisprudence prohibits the use of hearsay unless it falls into one of the designated exceptions set forth in Rules 803 or 804. Texas Code of Criminal Procedure Art. 38.072 specifically creates a special exception to the hearsay rule in child sexual abuse cases regarding outcry testimony.
Whether such testimony is admissible at a criminal trial is determined by the Texas Rules of Evidence and the Sixth Amendment to the United States Constitution.
Requirements of 38.072 Outcry Statute
Under Article 38.072, the State is required, at least 14 days before the trial begins, to provide notice to the defendant of its intention to call an outcry witness. In addition, the State must identify the witness and give a summary of the outcry statement it intends to offer into evidence. The defendant can request, and the trial court must conduct, a hearing prior to the admission of outcry testimony to determine: 1) who is the correct outcry witness and 2)whether the outcry statement is reliable based on the time, content, and circumstances of the statement.”
Whether Article 38.072 allows a person to testify is determined by the trial judge, who must decide, after a hearing outside the jury’s presence, if the outcry witness satisfies the statute and is reliable.
In determining reliability, the court should consider whether there is evidence of prior prompting or manipulation by an adult (influenced, for example, by bias the outcry witness may have against the defendant). Another indicator of reliability is whether the outcry witness can describe the alleged offense in a discernible manner and recall the outcry’s time, content, and circumstances. The defendant has an indisputable procedural right under Art. 38.072 to explore these issues in a hearing outside the presence of the jury.
Qualifying the Outcry Witness
Article 38.072 lays out other specific procedures governing the admissibility of statements made by an outcry witness.
There are four parts to qualifying a witness as an outcry witness. First, the declarant child must be under the age of fourteen or have a disability. Second, the crime must be a specific sexual offense or an assaultive offense described in 38.072, Sec. 2(a)(2). Third, the child must have told the “outcry witness” facts that describe the alleged offense. Fourth, the outcry witness is the first person over the age of 18 the child made a statement about the offense or extraneous act. Finally, the child must be available to testify at trial.
If the State qualifies a person as an outcry witness, they can use the adult to testify to the child’s hearsay statements at trial. The “outcry witness” can testify or repeat the statement of the child to the jury. Whether this “outcry witness” can testify is crucial to your case because the jury will often hear repetitive testimony that State will use to bolster their case. The “outcry witness” could be multiple people, usually either a family member or a law enforcement professional trained to testify for law enforcement. So, defense counsel needs to be prepared to ascertain and argue for the correct witness to be designated.
Judges Have the Discretion to Hear Facts and Make Determination
It is a reversible legal error for the judge to fail to allow testimony without requiring the proper mandatory legal predicate. However, the judge’s designation of a witness as an “outcry witness” will be reviewed by appellate courts under the “abuse-of-discretion standard.” This standard permits a finding of abuse when the judge’s ruling is outside of what is known as “the zone of reasonable disagreement.” Therefore, the trial court’s decision to allow outcry testimony will not be disturbed absent a showing that there was a clear abuse of discretion in that decision.
With 38.072 and other legislatively created rules, the deck is often stacked against the defense going into a trial in a child sex abuse case. In addition, most prospective jurors have preconceived biases of guilt towards a defendant in such cases—and many of these jurors will admit to such bias during voir dire. One of the prosecution’s first witnesses will be the adult outcry witness whose admissible hearsay testimony will effectively bolster the child sexual assault allegations.
This harsh reality causes some defense attorneys to make critical strategic errors, or blunders, in these kinds of cases.
This problem was documented in a March 18, 2021 decision, Saunders v. State, issued by the Third District Court of Appeal in Austin. Germaine Saunders was found guilty of aggravated sexual assault of a child in Bell County. The victim, the defendant’s eight-year-old stepdaughter, first told a school classmate about the stepfather’s abuse. Next, the classmate told her mother, who, in turn, reported the allegation to a school teacher. The stepdaughter’s teacher then spoke to the child, who disclosed details of the alleged.
The teacher informed the school’s social worker about the alleged sexual abuse. The social worker also interviewed the child before reporting the allegations to Child Protective Services.
School officials informed the victim’s mother about the abuse. The mother then took the child to a local children’s advocacy center, where a certified “forensic interviewer” interviewed the child.
The prosecution designated the teacher as its “outcry witness” under the procedures outlined in Article 38.072. The prosecution also called the social worker and forensic interviewer, both of whom conveyed to the jury what the victim had told them about the defendant’s alleged abuse.
In effect, with the trial judge’s blessing, the prosecution was permitted to have three outcry witnesses who prejudicially bolstered each other’s testimony with essentially the same statements the child victim had given to them.
Defense Counsel Failed to Object to Hearsay or 38.072
The defendant argued on appeal that the testimony of the social worker and forensic interviewer should not have been admitted since the trial judge did not conduct an Article 38.072 hearing to determine the reliability of these two witnesses. The problem, however, is that defense counsel did not make a timely and proper objection to the prosecution’s use of these two witnesses. The appeals court explained:
“To preserve a complaint for appellate review, a defendant must lodge a timely and specific request, objection, or motion with the trial court and obtain an adverse ruling … ‘While no ‘hyper-technical or formalistic use of words or phrases’ is required in order to preserve error, the proffering party must ‘let the trial judge know what he wants, why he thinks he is entitled to it, and to do so clearly enough for the judge to understand him at a time when the judge is in the proper position to do something about it.’
“At trial, appellant neither objected generally to the testimony of either the school social worker or the forensic interviewer before their testimony nor did he object specifically to their testimony about A.T.’s statements to them concerning the sexual abuse that appellant perpetrated against her. Appellant never asserted in the trial court that the testimony of either of these two witnesses was improper outcry testimony, that its admission violated article 38.072, or even that it was inadmissible hearsay. Likewise, he never complained about the trial court’s failure to conduct a hearing pursuant to article 38.072 as to these two witnesses. Consequently, appellant failed to preserve error, if any, in the trial court’s admission of the testimony of either the school social worker or the forensic interviewer for appellate review.”
It has become a common occurrence in child sex cases for the prosecution to use more than the one outcry witness contemplated in Article 38.072. Trial courts are increasingly giving perfunctory approval to this prosecutorial abuse of Article 38.072 or looking for legal precedent to allow its admission. But this issue will not be heard, much less addressed, on appeal when defense counsel fails to timely and properly object.
Two months after the Third District Court of Appeals handed down Saunders, on May 21, 2021, the court decided Montiel v. State. In Montiel, the court held that even if the use of more than one outcry witness is an error, the error is harmless when there is sufficient independent evidence to sustain a conviction.
As we said in our opening, the Texas “outcry statute” is thorny legal terrain that defense counsel must navigate with extensive pretrial investigation and preparation that allows them to make proper and timely objections. The outcry statute currently being used in Texas was specifically designed to appeal to a juror’s preconceived bias against anyone charged in a child sex case by bolstering the testimony of a child complainant. The statute’s purpose was evident when it was enacted. Unfortunately, 38.072 has continued to do precisely what it was designed to do, make it easier to obtain convictions on child sex cases. Something easy enough for the prosecution before stacking the deck.