Article 38.072 of the Texas Code of Criminal Procedure allows the admission of a hearsay statement made to an outcry witness by certain abuse victims, including child victims of a sexual offense.

The outcry witness is the first person over the age of 18, other than the defendant, to whom the child spoke about the offense.

The statement must be made in some discernible manner and is event-specific rather than person specific.

Hearsay testimony from more than one outcry witness may be admissible under article 38.072 only if the witnesses testify about different events.

There may be only one outcry witness per event.

The party intending to offer the statement, most often the State, must notify the Defendant of the names of the outcry witnesses and a summary of their testimonies.

The trial court must conduct a reliability hearing of the witnesses outside the presence of the jury, and the child victim must testify or be available to testify at the proceeding.

The phrase "time, content, and circumstances" refers to the time the child's statement was made to the outcry witness, the content of the child's statement, and the circumstances surrounding the making of that statement.

Article 38.072 of the Texas Code of Criminal Procedure gives the trial court the responsibility to determine the reliability of the statement based on the time, content and circumstances of the statement. The credibility of the outcry witness is not an issue during the reliability hearing.

The outcry witness's biases may be such that a fact-finder, such as a jury, would not believe the outcry statement as relayed by the witness, but that is not a matter that the legislature has given to the trial court's discretion.

The trial court would be within its discretion at an Article 38.072 hearing to disallow as irrelevant a line of questioning that addressed the biases or memory of the outcry witness but not the time, content and circumstances of the outcry. 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 the admissibility of the outcry.

The determination of the outcry witness's credibility is a fact issue for the jury.

Timothy M. Donahue
Attorney at Law
SBN 24079764
1515 Heights Blvd
Houston, TX 77008
832.336.7003