EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Thursday, December 15, 2011

The Weight Of The Evidence, Take 2: Court Of Criminal Appeals Of Texas Reverses Conviction In Rule 804(b)(1) Case

Last year, I posted an entry about Sanchez v. State, 2010 WL 4336169 (Tex.App.-San Antonio 2010). As I noted at the time,

In Sanchez, Ivan William Sanchez was convicted of three counts of indecency with a child by sexual contact and one count of aggravated sexual assault of a child. Before Sanchez's trial, there was a pretrial hearing during which Angelica Newsome testified about a statement the complainant made to her regarding alleged acts of abuse committed against her by Sanchez. The purpose of this testimony was to determine whether the complainant's statement qualified for admission under Texas Code of Criminal Procedure article 38.072 Section 2(a)(3), which provides an an exception to the rule against hearsay for "outcry testimony" if, among other conditions, the statement describing the alleged offense was "made to the first person, 18 years of age or older, other than the defendant, to whom the child...made a statement about the offense or extraneous crime, wrong, or act." The trial court deemed the statement admissible. At trial, however, Newsome was unavailable, prompting the State to read  into evidence the testimony Newsome gave at the pretrial hearing.

After he was convicted, Sanchez appealed, claiming that the admission of this testimony was improper under Texas Rule of Evidence 804(b)(1) and violated his rights under the Confrontation Clause because his motive to develop the testimony of Newsome at the pretrial hearing was not the same as his motive would have been at trial.

The Court of Appeals of Texas, San Antonio, disagreed, but yesterday the Court of Criminal Appeals of Texas reversed in Sanchez v. State, 2011 WL 6183607 (Tex.Crim.App. 2011). Why?

In rejecting Sanchez's Confrontation Clause argument, the Court of Appeals of Texas, San Antonio, had found that

In Texas, there is no bright-line rule that states pretrial hearings do not provide an adequate opportunity to cross-examine sufficient to satisfy confrontation clause requirements. Rule 804(b)(1) does not require that in order for prior testimony to be admitted as an exception to the hearsay rule the opponent of the evidence have had an identical motive to challenge the testimony at the prior proceeding as he now has at trial....Instead, the rule requires only that he have had a similar motive....Neither the form of the proceeding, the theory of the case, nor the nature of the relief sought need be the same....Only the particular issue about which the testimony was first offered must be substantially similar to the issue offered in the current action....

On appeal, appellant contends he was not given the opportunity at trial to "flesh out" any potential bias Newsome may have had, to question Newsome's ability to adequately recall events, or to expand on Newsome's admission at the pretrial hearing that she had "seizures and certain things [were] kind of foggy." The purpose of a hearing conducted pursuant to article 38.072 is to determine whether the outcry "statement is reliable based on the time, content, and circumstances of the statement."...Appellant contends the purpose of the pretrial hearing is different from cross-examination for purposes of the guilt/innocence stage of trial. Therefore, appellant concludes, he had no motive at the pretrial hearing to question Newsome about her bias, her recall, or her seizures.

One indicia of whether the child's outcry is reliable is whether evidence exists of prior prompting or manipulation by adults....Therefore, at the pretrial hearing, appellant had a basis for exploring whether Newsome held any bias against him that would have caused her to prompt or manipulate the complainant. Also, because the outcry statement must be one that in some discernible manner describes the alleged offense, appellant had a basis for exploring Newsome's ability to recall the time, content, and circumstances of the outcry. In fact, at the pretrial hearing, appellant's counsel conducted an extensive cross-examination of Newsome about the timing of the outcry and the specific words the complainant used in describing the offense, and Newsome's pretrial testimony was read at trial in its entirety, including counsel's cross-examination. We conclude appellant's motive to cross-examine Newsome at the pretrial hearing was similar to his stated motive for cross-examining her at trial. Therefore, appellant was not denied his constitutional right to confront a witness at trial.

At the time, I strongly criticized the court's conclusion, asserting that

In determining whether a statement is admissible under an exception to the rule against hearsay, a trial court merely has to determine whether the proponent of the evidence has established all of the elements of the hearsay exception by a preponderance of the evidence. This isn't a terribly difficult standard to satisfy. As long as a witness is willing to take the stand and testify that all of the elements were satisfied, the court will likely deem the statement admissible, with any questions about the witness' issues with perception, memory, credibility, contradictions, etc. going to the weight of the evidence rather than its admissibility. As an example, in Cagle v. State, 976 S.W.2d 879, 882 (Tex.App.-Tyler 1998), the Court of Appeals of Texas, Tyler, found that an inconsistency between the testimony of the victim and the testimony of her mother regarding an "outcry statement" under Texas Code of Criminal Procedure article 38.072 Section 2(a)(3) went to the weight of the evidence and not the admissibility of the statement.

In other words, it seems clear to me that Sanchez knew that Newsome's testimony would be deemed admissible at the pretrial hearing. And sure, his attorney did engage in a somewhat extensive cross-examination of Newsome, but it seems to me that the purpose of this interrogation was to set things up for an even more extensive interrogation of Newsome at trial, the purpose of which would have been to call into question her credibility before the jury and not simply to call into question whether the elements of a hearsay exception had been established by a preponderance of the evidence.

Yesterday, the Court of Criminal Appeals of Texas agreed with me. And in doing so, the court created a bright-line rule that testimony elicited at an article 38.072 hearing never satisfies the Confrontation Clause. Why? Well, the court noted that such a hearing is concerned only with the reliability of the outcry and has nothing to do with the witness' credibility. Instead, if the court at an article 38.072 hearing determines that the witness' statement is reliable, the statement is deemed admissible, and the credibility of the outcry witness is a matter for the jury at trial; It can't be impeached by the opposing party during the hearing. Accordingly, the court found that

the narrow range of discretion that Article 38.072 allows a trial court means that the credibility of the outcry witness is not a relevant issue at a hearing to determine admissibility of an outcry. A hearing in which the sought-after cross-examination would be necessarily irrelevant does not provide an adequate opportunity for cross-examination such that testimony from the hearing is admissible at a trial on the merits.

Trial courts have great discretion in how they manage their Article 38.072 hearings. However, we do not wish to encourage parties to attempt to elicit irrelevant testimony in order to get impeachment evidence for trial. Our ruling today is meant not only to vindicate defendants' Sixth Amendment rights, but also to ensure that trial courts decide the reliability of an outcry based only on the time, content, and circumstances of the statement, leaving the determination of the outcry witness's credibility to the fact finder at trial.

(Hat tip to Chris Osborn for the link)



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