By: Schechter H.B. No. 1295
73R1613 DAK-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the admissibility into evidence of a recording of an
1-3 oral statement of a child who is the victim of certain crimes.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Section 5(a), Article 38.071, Code of Criminal
1-6 Procedure, is amended to read as follows:
1-7 (a) On the motion of the attorney representing the state or
1-8 the attorney representing the defendant and on a finding by the
1-9 trial court that the following requirements have been substantially
1-10 satisfied, the recording of an oral statement of the child made
1-11 before a complaint has been filed or an indictment returned
1-12 charging any person with an offense to which this article applies
1-13 is admissible into evidence if:
1-14 (1) no attorney <or peace officer> was present when
1-15 the statement was made;
1-16 (2) the recording is both visual and aural and is
1-17 recorded on film or videotape or by other electronic means;
1-18 (3) the recording equipment was capable of making an
1-19 accurate recording, the operator of the equipment was competent,
1-20 the quality of the recording is sufficient to allow the court and
1-21 the finder of fact to assess the demeanor of the child and the
1-22 interviewer, and the recording is accurate and has not been
1-23 altered;
1-24 (4) the statement was not made in response to
2-1 questioning calculated to lead the child to make a particular
2-2 statement;
2-3 (5) every voice on the recording is identified;
2-4 (6) the person conducting the interview of the child
2-5 in the recording is expert in the handling, treatment, or <and>
2-6 investigation of child abuse cases, present at the proceeding,
2-7 called by the state as part of the state's case in chief to testify
2-8 at trial, and subject to cross-examination;
2-9 (7) immediately after a complaint was filed or an
2-10 indictment returned charging the defendant with an offense to which
2-11 this article applies, the attorney representing the state notified
2-12 the court, the defendant, and the attorney representing the
2-13 defendant of the existence of the recording and that the recording
2-14 may be used at the trial of the offense;
2-15 (8) the defendant, the attorney for the defendant, and
2-16 the expert witnesses for the defendant were afforded an opportunity
2-17 to view the recording before it is offered into evidence and, if a
2-18 proceeding was requested as provided by Subsection (b) of this
2-19 section, in a proceeding conducted before a district court judge
2-20 but outside the presence of the jury were afforded an opportunity
2-21 to cross-examine the child as provided by Subsection (b) of this
2-22 section from any time immediately following the filing of the
2-23 complaint or the returning of an indictment charging the defendant
2-24 with an offense to which this article applies until the date the
2-25 trial begins;
2-26 (9) the recording of the cross-examination, if there
2-27 is one, is admissible under Subsection (b) of this section;
3-1 (10) before giving his testimony, the child was placed
3-2 under oath or was otherwise admonished in a manner appropriate to
3-3 the child's age and maturity to testify truthfully;
3-4 (11) the court finds from the recording or through an
3-5 in camera examination of the child that the child was competent to
3-6 testify at the time that the recording was made; and
3-7 (12) only one continuous recording of the child was
3-8 made or the necessity for pauses in the recordings or for multiple
3-9 recordings has been established at trial.
3-10 SECTION 2. This Act takes effect September 1, 1993, and
3-11 applies only to the recording of an oral statement made on or after
3-12 that date. An oral statement recorded before the effective date of
3-13 this Act is governed by the law in effect at the time the statement
3-14 was recorded and that law is continued in effect for that purpose.
3-15 SECTION 3. The importance of this legislation and the
3-16 crowded condition of the calendars in both houses create an
3-17 emergency and an imperative public necessity that the
3-18 constitutional rule requiring bills to be read on three several
3-19 days in each house be suspended, and this rule is hereby suspended.