Generally, a child’s statement which is later presented in court as evidence for the truth of a claim, will be considered hearsay. For example, if a child returns from her mother’s house and claims, “my mother was not home the entire weekend,” this statement would be considered hearsay, and therefore inadmissible. However, there are exceptions to the hearsay rules of the Texas Rules of Evidence. Judges are typically well versed in these exceptions. However, less experienced lawyers often overlook important hearsay exceptions, particularly for cases surrounding abuse.
In order to allow testimony under section 104.006, the court must determine whether or not statements by the children are reliable.
Some factors courts have considered are:
In addition to determining whether or not statements describing abuse and are reliable, one of the following requirements must be met:
If a child is available to testify, then the court need not determine whether or not the welfare of the child needs to be protected. The child need not actually be called; rather, it is sufficient that the child simply be available to testify.
If the child is determined to be unavailable, then the Court must find that the use of the out of court statements is necessary to protect the welfare of the child. The Court must consider evidence that the use of the out of court statements in spite of the witness’s unavailability is necessary to protect the welfare of the child.
It is very important that lawyers understand all hearsay exceptions contained within both the Rules of Evidence and Family Code. The outcome of a case may rest on a lawyer’s knowledge surrounding these crucial topics. To ensure you are given the best advice, speak with a licensed attorney today.
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