Sexual Abuse Charges – Blog 7: The Confrontation Clause

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

I’m continuing my series of blogs today on sexual abuse charges.  I’ve broken down the categories into three:  the technical or legal components, the subjective nature of the evidence, and finally the advocacy related topics from the defense perspective.

Today I’m talking about the importance of the confrontation clause under the sixth amendment of the US Constitution to sexual abuse charges which is a common denominator in any sexual molestation charge.

What is the Confrontation Clause?

Your right to confront means the right to cross examine your accusers in open court.

I’m continually amazed by the depth of human intuition and understanding of the framers of our constitution.  Even back in 1789 they seemed to know not just the mob mentality of “the good guys” who prosecute or bring charges – but also some of the mental laziness which comes along with it.  What I mean is asking an accuser “what happened…” followed then by “and then what happened…” and “what happened after that…” doesn’t necessarily get you to the truth.

Cross examination allows the questioner to ask pointed, leading questions to state’s witnesses – questions the accused or witnesses from the state may not want to answer yet are required to do so.

One of my favorite quotes about cross examination:

Cross-examination is beyond any doubt the greatest legal engine ever invented for the discovery of truth … Cross-examination, not trial by jury, is the great and permanent contribution of the Anglo-American system of law to improved methods of trial-procedure.

– John Henry Wigmore

How Does the Right to Confront Impact Sexual Abuse Cases?

Your right to confront means the accuser likely has to testify in almost any case.  There are several rules in place in particular for cases involving child-witnesses.

  • The Testimony Has to Be Live

Courts have been clear:  the right to confront means the right to confront before a jury.  In fact, many of the opinions involving child sexual abuse cases where the prosecution has wanted to have a child testify via closed-circuit television are now particularly applicable as authority during the COVID-19 crisis.  Legally the consensus is a “Zoom” or virtual trial would violate these precedents set by child sexual abuse cases.

  • Outcry Laws

The prosecution is allowed to call witnesses known as “outcry” witnesses.  An outcry witness is any person over 18 years old who was the first adult to hear of the sexual abuse claim from a child.  Courts have construed outcry as a “process” so it’s not uncommon to have several outcry witnesses – some of whom are law enforcement interviewers – all come and testify in an effort to fortify the child’s claim.

An outcry witness can even contradict a child in cases where a child recants an outcry.

One important concept about an outcry witness is they can never replace a child witness altogether.  If the child witness does not or otherwise cannot legally testify – neither can the outcry witness.

  • A Child Witness Must be Competent to Testify

All witnesses have to be “legally competent” to testify.  Texas Rule of Evidence 601(a)(2) deals with children and the judge can examine them to see if they have “sufficient intellect” to testify concerning the matters at issue.  If the court determines the child does not have the ability to testify – then again – they are “unavailable” for confrontation rules and the outcry witnesses cannot replace them.

When is it Not Necessary for a Child Witness to Testify During a Sexual Abuse Case?

The prosecution is tasked with proving each element of a case beyond a reasonable doubt to the finder of fact (either a judge or a jury).  It would not be necessary for a child to testify where the elements of the case can be established through other witnesses with first-hand knowledge of the events – typically eye witnesses but also potentially medical experts if there is sufficient medical evidence in any particular case.

*Jeremy Rosenthal is certified in criminal law by the Texas Board of Legal Specialization.  He is recognized as a Texas Super Lawyer by Thomson Reuters.

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