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.
The Texas Family Code states the following:
In a suit affecting the parent-child relationship, a statement made by a child 12 years of age or younger that describes alleged abuse against the child, without regard to whether the statement is otherwise inadmissible as hearsay, is admissible as evidence if, in a hearing conducted outside the presence of the jury, the court finds that the time, content, and circumstances of the statement provide sufficient indications of the statement’s reliability and:
(1) the child testifies or is available to at the proceeding in court or in any other manner provided for by law; or
(2) the court determines that the use of the statement in lieu of the child’s testimony is necessary to protect the welfare of the child.
Reliability of the Statement
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: (1) whether a child understood the difference between truth and lies, (2) whether children of a certain age would normally know about the matters they described, (3) whether statements could be corroborated by other evidence, (4) whether statements describe an event that a child of the victim’s age could not be expected to fabricate, (5) whether a child has a motive to fabricate a statement, and (6) whether the accused had the opportunity to commit the offense. In re M.R., 243 S.W.3d 807, 813 (Tex. App.—Fort Worth 2007, no pet.); In re P.E.W.,105 S.W.3d 771, 775 (Tex. App.-Amarillo 2003, no pet.).
Availability to Testify
In addition to determining whether or not statements describing abuse and are reliable, one of the following requirements must be met: (1) the child testifies or is available to testify at the proceeding in court or in any other manner provided for by law; or (2) the use of the statement in lieu of the child’s testimony is necessary to protect the welfare of the child.
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.