No. 05-27545

THESTATE OF TEXAS, )      IN THE 5THCRIMINAL DISTRICT

                                           )      COURT

              Plaintiff,                )

                                           )      DALLAS COUNTY,TEXAS

v.                                         )

                                           )

ZZZZYYYY, )

                                           )

                      Defendant . )

)

MOTIONSIN LIMINE

Defendant, ZZZZ YYYY, moves this Court, in limine,to exclude any evidence related to the subjects set forth below and, in supportof this motion, she sets forth the following facts and argument:

A. Not to Move to Introduce Any Business Recordsin Front of the Jury that Contain Information from a Person who did not have aBusiness Duty to the Business

         Mr.YYYY is concerned that the state may attempt to introduce records such as counselingrecords or records maintained by the Dallas Children’s Advocacy Center intoevidence and put him in the position of having to object to the introduction ofsuch evidence before the jury. Tothe extent those records contain statements made to the business entity bypersons not having a business relationship with the business (e.g. the complainant or complainant’s family members),the records are not admissible in order to prove the truth of thosestatements.

         TheCourt of Criminal Appeals opinion in Garcia v. State, 126 S.W.3d 921(Tex. Crim. App. 2004) clearly demonstrates the point. In that case, the state offeredbusiness records from the Bexar County Battered Women’s Shelter, however, therecords also contained statements made to Shelter employees by appellant’swife. Id. at 925-26 The Court of Criminal Appeals held this to be error:

TheState laid a proper foundation for admission of the shelter's business recordsunder Rule 803(6). The records themselves were admissible, but that does notmean that all information, from whatever source or of whatever reliability,contained within those business records is necessarily admissible. When abusiness receives information from a person who is outside the business and whohas no business duty to report or to report accurately, those statements arenot covered by the business records exception.

Id. at 926 (emphasis added).[1]

B. Not to Attempt to Elicit Statements Made bythe Witness Out of Court

Oftenparties attempt to introduce statements during a witness’ testimony that thewitness made out of court for other than impeachment purposes and argue thatthis is not hearsay because it is the witness’ own statement.  This is not the law and such testimony isinadmissible as explained in Texas Rules of Evidence Manual § 801.02[5][c] at 861-62:

Rule801 (d) enunciates what is sometimes referred to as the “orthodox rule” that awitness’s prior out-of-court statements are still hearsay, even if the witnessis available for cross-examination. The rationale supporting this view is that, at the time the out-of-courtstatement was made, the witness-declarant was not subject to cross-examinationor under oath, and the fact finder had no opportunity to observe the witness’sdemeanor and assess his or her credibility.

Itmight be arguable that the language of Rule 801(d), “while testifying at thetrial or hearing,” can be interpreted to mean that the testimony of a witnessat trial or hearing concerning prior out-of court statements made by thewitness is not hearsay. This isnot a correct interpretation. Testimony concerning out-of-court statements offered for their truthconstitutes inadmissible hearsay even if the declarant of the statements is thewitness at trial, unless the out-of-court statements are admissible under anexemption or exception to the rule against hearsay. That interpretation is reinforced by the fact that Rule801(e) expressly specifies the limited circumstances in which a witness’s priorout -of court statements are admissible as nonhearsay.

C. Not to Attempt to Elicit Testimony Made bythe Witness’ Out of Court Statements that Explicitly or Implicitly Give aWitness’ Opinion that the Complainant is being Truthful

Itis well established that it is improper for a witness to offer a direct opinionthat a child complainant is being truthful. See Schutz v. State,957 S.W. 2d 52, 59 (Tex. Crim. App. 1997). Nevertheless, the state often attempts to offer suchopinions in indirect ways and it should be precluded before trial from doing soand its witnesses should be instructed accordingly.

Specifically,courts have found the following testimony to be inadmissible:

(1)Testimony that a complainant did not exhibit evidence of fantasizing. Id.

(2)Testimony that manipulation was less likely explanation for complainant’sallegations. Id.

(3)Testimony from an expert testifying about what percentage of children lie aboutbeing sexually assaulted. Wilsonv. State, 90 S.W.3d 391, 393 (Tex.App.--Dallas 2002).[2] See also, Yount v. State, 872 S.W.2d 707 (Tex. Crim. App. 1993) (Holding that Tex. R. Evid. 702“does not permit an expert to given an opinion that the complainant or class ofpersons to which the complaint belongs is truthful” and finding that questionasking witness how many child sexual abuse claims she “found to be unfounded”was improper.)

(4).Testimony that the complainant was, in fact, abused. Kirkpatrick v. State,747 S.W.2d 833 (Tex. App.--Dallas 1987) (“The only issue in this case waswhether the complainant's allegation of sexual abuse was true. The necessaryinference from the expert's testimony, "yes, [the complainant] wasabused," was that the expert believed that the complainant's version wastrue and that she had indeed been sexually abused. We hold that such testimonywas an improper comment on the complainant's credibility and was therefore,erroneously admitted.”)

(5)Testimony regarding how many complainants that witness had counselled over theyears that she did not believe were telling the truth. Simpson v. State, 1997 Tex. App. LEXIS 2548 (Tex. App.--Dallas May13, 1997).[3]

(6)Testimony regarding the factors for truthfulness observed by experts viz-a-vizthe complainant. Edwards v.State, 107 S.W.3d 107, 115-16 (Tex.App.--Texarkana 2003) (Question “I am asking are there factors that you seethere that indicate to you there’s some truthfulness to what she’s saying?” wasimproper); Sessmus v. State, 129S.W.3d 242, 247, 248 (Tex. App.--Texarkana 2004) (After describing the factorsfor truthfulness, the witness was asked how the complainant “fit into thosefactors.” Held improper).[4]

(7)The different steps taken if a witness who has interviewed the child does notbelieve the child or different steps taken if a witness who has interviewed thechild does believe the child. Cloudv. State, 2007 Tex. App. LEIXS 3299 (Tex.App.--Houst. [1st], Apr. 26, 2007). (Question asking an investigator from theChildren’s Assessment Center “What happens--what do you if you do not believethe child?” was improper.).[5]

8)Testimony from a witness that the complainant “did not exhibit behavior helooks for when determining whether or not a child is making up a story aboutsexual abuse.” Pena-Ruiz v.State, 2002 Tex. App. LEXIS 2100 (Tex.App.--Houst. [1st] March 21, 2002).

9)  Testimony from a witness that nothingin complainant “demeanor” indicated that she was not telling the truth.  224. S.W. 3d 823 (Tex. App.-Texarkana2007).

D. Not to Attempt to Elicit Statements Made bythe Witness Out of Court Which Are Implied Hearsay

Giventhat a complainant’s statement to another that she was abused is generallyprecluded as inadmissible hearsay, the state often gets creative in an effortto convey to the jury that the complainant did, in fact, made those statementsto others without directly eliciting the statement. For example, the state will ask a witness, “Did thecomplainant tell you something that was very upsetting?”  Such a back door attempt to introducehearsay before the jury makes a mockery of the hearsay prohibitions.

            Indeed,“[u]nder Texas Rule 801(c), a ‘matter asserted’ includes not only mattersexpressly asserted, but also matters that are implied.” Texas Rules of Evidence Manual§ 801.02[4][c] at 856. As noted by one court, ‘“[w]ere therule otherwise, the hearsay rule could easily be circumvented through cleverquestioning and coaching of witnesses, so that answers were framed as impliedrather than as direct assertions.” Park v. Huff, 493 F.2d 923(5th Cir. 1974).

E. Not to Attempt to Elicit Statements Made bythe Witness Out of Court Impact Testimony on Complainant Family Members

The state often asks a complainant’s family memberto describe the effect that a complainant’s outcry had on them in order tobuild sympathy with the jury. Victim impact evidence such as this is completely irrelevant in theguilt/innocence phase of a trial. See Miller-El v. State, 782 S.W.2d 892, 895 (Tex. Crim. App.1990); Garrett v. State, 815 S.W.2d 333,337-38 (Tex. App.--Houst. [1st Dist.] 1991). The state should be precluded from offering this evidence inlimine given that once such emotionalevidence is offered before the jury, it will be impossible for Mr. YYYY to‘unring the bell.’

WHEREFORE, ZZZZ YYYY respectfully requests thisCourt to grant his Motion In Limine in all parts and instruct thestate not to introduce evidence or testimony in violation of the motion and toinstruct its witnesses regarding the matters covered by this motion.

                                                      Respectfullysubmitted,

                                                      F.Clinton Broden

                                                      Tx.Bar 24001495

                                                      Broden& Mickelsen

                                                      2707Hibernia

                                                      Dallas,Texas 75204

                                                      214-720-9552

                                                      214-720-9594(facsimile)

                                                      Attorneyfor Defendant

                                                      ZZZZYYYY
CERTIFICATE OF SERVICE

            I,F. Clinton Broden, do hereby certify that, on this 12th day of OCTOBER, 2007, Icaused a copy of the foregoing document to be hand delivered to the DallasCounty District Attorney’s Office, 133 N. Industrial Blvd., Dallas, Texas75207.

F.Clinton Broden

---

[1] TheCourt of Criminal Appeals gave an example of this principle:

Forexample, a delusional person might call Crimestoppers to report that GeorgeWashington was cutting down a cherry tree on the Capitol grounds. AlthoughCrimestoppers has a business duty to accurately record all incoming calls andto keep the records as part of its business records, the caller had no businessduty to report accurately. His statements may be contained within a businessrecord, but they are not admissible to establish the fact that GeorgeWashington was, in fact, cutting down a cherry tree, although they would beadmissible to establish that the person did call and make a report of some typeon a given day.

[2] Theexpert in this case was Cindy Alexander who the state has given notice will bean expert in this case.

[3] Theexpert in this case was Cindy Alexander who the state has given notice will bean expert in this case.

[4] Itwas also held improper for the state to argue in its closing that thecomplainant was truthful “because he was able to convince all four of theseexperts he was telling the truth.” Sessmus, 129 S.W. 3d at 248.

[5] Thiswould preclude asking a witness from the Dallas Children’s Advocacy Center whatthe Center does if it finds an abuse complaint to be founded or unfounded.