Chapter 8 – Evidence
Evidentiary Issues
While the Texas Rules of Evidence apply to cases affecting the parent/child relationship as they would in all other civil proceedings,[1] there are certain practices and specific provisions of the Texas Family Code that affect the full implementation of the rule of evidence. Many proceedings, depending on their type, through the course of a particular case are more informal than a typical court proceeding. Courts often handle proceedings without sworn testimony or actual evidence being presented. Many courts want to develop a dialogue among participants in order to achieve results that will be in the best interest of the child. It is incumbent upon the advocate to request or insist on a more formal presentation before the court when a more formal proceeding would be in the best interest of his or her client. For example at the 14 day full adversarial hearing, the attorney may wish for a formal hearing while allowing a more informal hearing during a status hearing.
Chapter 104 of Texas Family Code contains evidentiary provisions allow for certain evidence and for the presentation of evidence in a manner that would ordinarily be precluded by the rules of evidence. These unique rules of evidence generally apply to children under the age of 12 years old and is intended to protect the child from being further traumatized by the trial or hearing while at the same time allowing for the presentation of evidence from them.
Methods of Testimony
Electronic Testimony by a Child
The Texas Family Code provides a special set of evidentiary rules that apply to suits affecting the parent-child relationship.[2] The Family Code provides for three types of electronic testimony in lieu of live in court testimony by a child under the age of 12.[3] The Code also provides that these methods can be used for a child of any age if the child is incapable of testifying in open court due to a medical condition.[4] The determination of whether alternative forms of testimony are necessary to protect child witnesses from the trauma of testify in court should be made on a case by case basis.[5] In making a determination of whether alternative forms of testimony are necessary to protect child witnesses from the trauma of testifying in court, courts should consider whether: (a) use of a video is necessary to protect the welfare of the child; (b) the trauma to the child comes from exposure to the abuse, rather than from the courtroom generally; and (c) the emotional distress to the child would be more than minimal.[6]
If the court permits testimony of a child to be taken as provided in Chapter 104, the child may not be compelled to testify in court during the proceeding.[7] The right to confront witnesses applies only to criminal proceedings and not to termination cases, and thus, challenges on confrontation grounds will not be successful.[8]
Prerecorded statement of a child
If a child 12 years of age or younger is alleged to have been abused, the recording of an oral statement of the child made prior to the proceeding may be admissible, if the following conditions are met.[9]
1) no attorney for a party was present at the time the recording was made;
2) the recording is both visual and aural and is recorded on film or videotape or by other electronic means;
3) the recording equipment was capable of making an accurate recording, the operator was competent, and the recording is accurate and has not been altered;
4) the statement was not made in response to questioning calculated to lead the child to make a particular statement;
5) each voice on the recording is identified;
6) the person conducting the interview of the child in the recording is present at the proceeding and available to testify or be cross-examined by either party; and
7) each party is afforded an opportunity to view the recording before it is offered into evidence.
Most importantly and the area that may create the greatest opportunity for challenge, the statements cannot be made in response to leading questions or an atmosphere that encourages certain answers.[10] Courts will exclude tapes that are made in violation of this provision.[11] It is permissible for a video to be edited to remove questions (and the corresponding answers) that have been determined to be impermissibly leading.[12] However, as the attorney, be mindful of the possibility that the leading nature of the questions influenced the responses to questions that followed that may have been worded in proper form. If this is the case, object that those later responses are also inadmissible as they were guided by the prior leading questions.
This provision can be used to admit into evidence videos made at Children’s Advocacy Centers. For more information on the requirements applying to Children’s Advocacy Centers, see Family Code Chapter 264, Subchapter E.
Prerecorded Videotaped Testimony of Child
The court may, on the motion of a party to the proceeding, order the testimony of the child be videotaped prior to a hearing or trial, so the child will not have to appear in court.[13] When testimony is being taken under this provision only one attorney for each party, the video operator and the attorney for the child or someone who would comfort and protect the child’s well-being can be present. [14] The person operating video equipment should not be seen by the child.[15] Only the attorneys for the parties may question in the child.[16] A parent acting pro se cannot question a child under this section. The court must ensure that:
1) the recording is both visual and aural and is recorded on film or videotape or by other electronic means;
2) the recording equipment was capable of making an accurate recording, the operator was competent, and the recording is accurate and is not altered;
3) each voice on the recording is identified; and
4) each party to the proceeding is afforded an opportunity to view the recording before it is shown in the courtroom.[17]
Remote Televised Broadcast of Testimony of Child
The third type of video presentation is live testimony via closed circuit television.[18] If a child 12 years of age or younger is alleged to have been abused, the court may, on the motion of a party to the proceeding, order that the testimony of the child be taken in a room other than the courtroom and be televised by closed-circuit equipment in the courtroom to be viewed by the court and the parties.[19] The procedures that apply to prerecorded videotaped testimony of a child[20] apply to the remote broadcast of testimony of a child.[21]
Electronic Testimony by a Professional
Video Conferencing by Professional
The Texas Family Code provides that the court may allow certain professionals to appear via video conferencing rather than appearing in person in abuse and neglect matter brought by DFPS.[22] The term professional is very broad and includes all those with a mandatory obligation to report abuse under § 261.101(b).[23] Professional includes teachers, nurses, doctors, day care employees, employees of a clinic or health care facility that provides reproductive services, juvenile probation officers, and juvenile detention or correctional officers.[24]
The court may order that testimony of the professional be taken by videoconference, on agreement by the state’s counsel and the defendant’s counsel.[25] It must be a true video conference where all involved at both locations can hear and see each other during the testimony.[26]
Hearsay
Hearsay is an out of court statement offered to prove the truth of the matter asserted.[27] The Texas Rules of Evidence provide that hearsay is not admissible except as provided by statute or these rules or by other rules prescribed pursuant to statutory authority.[28] Inadmissible hearsay admitted without objection shall not be denied probative value merely because it is hearsay.[29] Because hearsay is admitted if an objection is not timely made, it is vital that attorneys have a thorough understanding of the hearsay rule and are able to quickly recognize objectionable statements.
Basic Hearsay Analysis:
1) Is it a statement?
2) Was it made out of court?
3) Is it offered to prove the truth of the matter asserted?
i) What did the declarant assert to be true?
ii) What is the proponent trying to prove is true?
iii) Is the proponent offering the statement as the truth because the declarant said so?
A “statement” is (1) an oral or written verbal expression or (2) nonverbal conduct of a person, if it is intended by the person as a substitute for verbal expression.[30]
Note that “statement” includes nonverbal conduct. Whether or not the conduct is intended as a substitute for verbal expression will almost always be determined with circumstantial evidence. Key factors to the determination include proximity to a question asked and whether the conduct is customarily used to communicate.
The Texas definition differs somewhat from the Federal definition of a “statement,” as the Texas definition omits the word “assertion.” Under the Federal Rule, something is not a “statement” unless the declarant intended to assert.[31] The Texas Rule includes a definition for “matter asserted,” which is not included in the Federal Rules. Under the Texas rule, “matter asserted” includes express and implied assertions. The result of the slight variance in language is that the Texas hearsay rule has a broader application, which includes conduct by an actor intended as a substitute for words but not intended as an assertion.
A “declarant” is a person who makes a statement.[32]
If the statement is not one by a person, it is not hearsay. For instance, results produced by a machine, like an E.K.G. print outs, are not hearsay. While there may be other authenticity issues like reliability of the machine, system and process, results produced by a machine are not statements by a person and are not hearsay. The purpose of the hearsay rule is that human statements are effected by human misinterpretation, misperception, dishonesty, and human ambiguity, and the credibility should be tested by being present in court in front of the jury and subject to cross examination. With a machine, these concerns do not exist.
Availability of a person to testify, alone, has no affect on hearsay. It may be relevant to admissibility of the hearsay statement if it fits under one of the hearsay exceptions in Rule 804. It is a common misconception that if a witness is available in court to testify, out of court statements are not hearsay, but that is not the case.
“Matter asserted” includes any matter explicitly asserted, and any matter implied by a statement, if the probative value of the statement as offered flows from declarant's belief as to the matter.
As discussed above, this variation in the Texas rules broadens the scope of what is hearsay. In Texas, an assumed implied assertion (not trying to say something indirectly but that fact must be assumed based on what was said) is hearsay.
“Hearsay” is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.
When a statement is not offered to prove the truth of the matter asserted, it is not hearsay. There are some situations where the statement is relevant because it was said, and not because it was necessarily true. For instance, if two people make a verbal contract, the words said create a deal making it relevant. Also, if defamation is alleged, the words said have importance, not the truth of the words said; in most every defamation case the person offering the statement will be asserting that the statement is not true. These types of verbal acts or operative facts are often termed “res gestae” meaning “the things done.”
Similarly, an out-of-court statement that would normally be hearsay can be used to impeach the witness because it is not used for the truth of the matter asserted. For example, if a statement was made to a CPS investigator by witness A and at trial witness A says the opposite, the statement to the investigator (which would normally be hearsay) can be used because it is not offered to prove that the statement was true, but rather to show that witness A has changed his story. As a practical matter, an attorney should only offer a prior statement to impeach in-court testimony when the prior statement was more helpful to his case.
A statement can also be offered not for the truth of the matter, but to show state of mind.[33] State of mind can be relevant in two situations:
1) Law requires a showing of mental state (e.g. mens rea, knowledge requirement, reasonableness of behavior, misrepresentation, malice);
2) Law permits showing of mental state as circumstantial evidence of conduct (e.g. whether person acted in self defense because he was threatened).
For instance in Posner v. Dallas County Child Welfare Unit, a witness testified that, while observing her four-year-old son and a friend playing with dolls, she overheard the friend say, “[G]ive me your doll, and I'll show you with mine how daddies sex their little girls.”[34] The court held this testimony was not offered to prove the truth of the declarant's statement as to how daddies “sex their little girls;” Rather, it was offered to show that J. made the statement which was relevant to the issue of her emotional well-being and state of mind.[35]
When a statement is not offered to prove the truth of the matter asserted, it is being offered for a limited purpose. Thus, if a statement is admitted that is harmful for your client, ask for a limiting instruction by the judge that the jury should not take the statement as the truth but only for the specific purpose for which it was admitted.