Legal Question in Criminal Law in Texas

The DA is correct.

The defendant has a constitutional right to confront and cross examine witnesses against him.

The defense may bring in the DVD on cross examination if any of his answers conflict with his answers on the stand..

In court, the lawyers should be using extra care to be nice to your grandson. They believe that the jury will take it out on them if they are mean to him.

You may want to contact an attorney to represent your grandson's interests. He or she might be able to arrange alternative means of testifying such as via closed circuit television.

Here is the link to the old statute, which I do not think has changes which are relevant to your situation: http://www.fastlaws.com/index.php?id=txcr38_071

It is entitled Testimony of Child Who is A Victim of Offense but then lists murder and capital murder among others making me think (without excess research) that it could apply to your grandson. They cannot simply use his prior recorded statement as the defendant is entitled to cross examination. But, it is possible to have the court require that his testimony be by closed circuit t.v. Talk to the prosecutor about this. It takes some work to get this arranged including an evaluation by a professional mental health person. In addition to the statute, below are some case excerpts just to give you a little more understanding:

Provided there is an adequate showing of necessity, the state interest in protecting a child from the trauma of testifying in a child abuse case is sufficiently important to justify the use of a procedure that permits the child to testify in the absence of face-to-face confrontation with the defendant. Maryland v. Craig, 497 U.S. 836, 855 (1990). Craig involved testimony via closed-circuit television by the victim in a child sexual abuse case. One year later, the *****Court of Criminal Appeals, citing Craig, held that neither the Sixth Amendment nor article I, section 10 of the Texas Constitution were violated when a child witness who was not the victim of the charged offense was permitted to testify by means of closed-circuit television. Gonzales v. State, 818 S.W.2d 756, 761-66 (Tex. Crim. App. 1991). In Gonzales, the child witnessed the sexual assault and fatal beating of her younger sister by the defendant.***** The requisite showing of necessity must be made on a case-by-case basis.

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The issue of whether closed circuit testimony against a defendant by a child victim of abuse is permissible was first addressed by the Supreme Court in Maryland v. Craig, and then decided under the Texas Constitution in Gonzales v. State. Craig, 497 U.S. at 836; Gonzales, 818 S.W.2d at 756.

The constitutional right embodied in the Sixth Amendment is a right to face-to-face confrontation. Coy v. Iowa, 487 U.S. 1012, 1016 (1988); Gonzales, 818 S.W.2d at 762. The Supreme Court held that even though face-to-face confrontation was the core of the Sixth Amendment, a defendant's right may be satisfied by something less than "physical, face-to-face confrontation at trial only where denial of such confrontation is necessary to further an important public policy and only where the reliability of the testimony is otherwise assured." Craig, 497 U.S. at 850. The Confrontation Clause requires "rigorous adversarial testing" to secure the reliability of evidence. Id. at 846.

In Craig, the Supreme Court defined the test for finding a necessity that a child testify outside the presence of the defendant. Id. at 855. The Court stated that it must be a case-specific finding. Id. "The trial court must also find that the child witness would be traumatized, not by the courtroom generally, but by the presence of the defendant." Id. at 856. "Finally the trial court must find that the emotional distress suffered by the child witness in the presence of the defendant is more than de minimis, i.e., more than 'mere nervousness or excitement or some reluctance to testify.'" Id. (quoting Wildermuth v. State, 530 A.2d 275, 289 (Md. 1987)).

In Gonzales, the Texas Court of Criminal Appeals declined to define the scope of the Confrontation Clause under the Texas Constitution more broadly than under the United States Constitution. 818 S.W.2d at 763-64. Instead, it concluded that since there was cross-examination of the child witness, that "there was compliance with Article I, section 10 of the Texas Constitution." Id. at 762. The court chose to use "the same analysis applied in Craig to determine if the State constitution has been violated." Id. at 764.

It is definitely understandable that your afraid and / or concerned. If for whatever reason they cannot get this procedure approved, you should have your in therapy and you should reassure him that he has done nothing wrong, and that he is just relaying what he say and heard - period. Tell him not to look at the step-father. (And, the DA's office should have a victim witness person in the courtroom with him to give him reassurance. I'm surprised to hear that the prosecutor is taking such a hard line approach but perhaps it is because of the case against the mother.)

The lawyers will not be aggressive to your grandson. This would NOT be in their favor in front of a jury.