What Happens if a Victim Recants in a Family Violence Case?

If you or someone you know are currently dealing with issues like expert testimony on victim recantation and excited utterances, it is important to understand what the State can and cannot use against you during the trial. The Houston Court of Appeals recently addressed these issues in SALINAS v. STATE.


In this case, Mr. Salinas was convicted of injury to an elderly person. Salinas allegedly struck and bit his grandfather during an argument at the grandfather’s apartment. When the police arrived, the grandfather appeared “visibly shocked” and was bleeding from a wound in his arm. The grandfather testified to the police that Mr. Salinas hit him and jumped on him. The grandfather later recanted all of his testimony and told the police that nothing happened. At trial, the State used an expert in family violence to testify that sometimes victims in family violence cases will “recant their testimony and minimize the assault.” Mr. Salinas argued that the State made a mistake allowing the family violence expert to testify and that the State erred when allowing the testimony from the grandfather immediately after the police arrived.

When is Expert Testimony Allowed if a Victim Withdraws Testimony?

Texas law says an expert needs to: 1) have knowledge, skill, experience, training, or education; 2) the witness must be familiar with the matter of the trial; and 3) the testimony must help the court decide the case. In the Salinas case, the expert witness worked twelve years in the DA’s office; worked in several group homes, a hospital, and a health care facility; obtained two degrees in social work; and finally, attended numerous conferences and seminars about family violence. The Court held that this more than qualified the witness to testify about why victims in family violence cases sometimes change their stories after the initial interview.

What is an Excited Utterance, and when can the State use it?

An excited utterance is a method for allowing statements made by excited witnesses in the immediate aftermath of crimes. Due to the shock of crimes, these statements are generally accepted as true as long as the statement was 1) a product of the exciting event; 2) the person who made the statement was dominated by the event; and 3) the statement actually related to what happened. In this case, the police officer at the scene testified that the victim was shocked, upset, sad, and suffering from arm wounds. The evidence tended to prove that the victim was still suffering from the shock of the situation when he made the statements in question. Because these statements fell under the excited utterance exception of the Texas Rules of Evidence, any statements made by the victim while he suffered from the effects of the altercation should be allowed in court.

If you believe you have an issue with possible inappropriate testimony, call Guest and Gray Law Firm’s defense team today. Guest and Gray Law Firm is a full service civil and criminal defense law firm serving the entire DFW Metroplex including Dallas, Kaufman, Rockwall and surrounding counties. Our main office is in Forney, Texas where we have served the community since 1967. We also have office locations in Rockwall and Kaufman, Texas. Our team of lawyers is ready to help with any concern you might have involving inappropriate testimony.

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