Entering the Child’s Testimony into Evidence

A lawyer has a couple options when entering a child’s testimony into evidence without calling the child to the witness stand. The lawyer may call the child’s counselor to the witness stand, or the lawyer may videotape the child. To learn more about admitting the testimony of the child’s counselors, see our prior post here.

Videotaping the Child: Requirement of Administering an Oath

The Amarillo Appellate Court recently affirmed a trial court’s decision to strike from evidence a child’s videotaped testimony. Nichol v. Nichol, 07-12-00035-CV, 2014 WL 199652 (Tex. App.—Amarillo Jan. 15, 2014, no. pet. h.). Although the trial court granted the father’s “Motion to Prerecord Testimony of the Child,” the same court ruled the videotape to be “inadmissible hearsay because no oath was administered and no preliminary questions were asked of the child which would indicate he understood his testimony was to be truthful.”

Section 104.003(a) of the Texas Family Code states that “the court may, on the motion of a party to the proceeding, order that the testimony of the child be taken outside the courtroom and be recorded for showing in the courtroom before the court, the finder of fact, and the parties to the proceeding.” Implicit in the word “testimony” is the requirement that an oath be taken. This is seen in Rule 603 of the Texas Rules of Evidence: “before testifying, every witness is required to declare that he will testify truthfully, by oath or affirmation administered in a form calculated to awaken the witness’ conscience and impress the witness’ mind with the duty to do so.”

In the Nichol case, the father’s attorney questioned the child without first administering an oath or having a discussion “about the issue of truthfulness.” Because the child was not made aware of his duty to be truthful, the trial court did not err in excluding the videotaped testimony.