By: Patterson S.B. No. 600
A BILL TO BE ENTITLED
AN ACT
1-1 relating to the admissibility into evidence of a recording of an
1-2 oral statement of a child who is the victim of certain crimes.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Subsection (a), Section 5, Article 38.071, Code
1-5 of Criminal Procedure, is amended to read as follows:
1-6 (a) On the motion of the attorney representing the state or
1-7 the attorney representing the defendant and on a finding by the
1-8 trial court that the following requirements have been substantially
1-9 satisfied, the recording of an oral statement of the child made
1-10 before a complaint has been filed or an indictment returned
1-11 charging any person with an offense to which this article applies
1-12 is admissible into evidence if:
1-13 (1) no attorney or uniformed peace officer was present
1-14 when the statement was made;
1-15 (2) the recording is both visual and aural and is
1-16 recorded on film or videotape or by other electronic means;
1-17 (3) the recording equipment was capable of making an
1-18 accurate recording, the operator of the equipment was competent,
1-19 the quality of the recording is sufficient to allow the court and
1-20 the finder of fact to assess the demeanor of the child and the
1-21 interviewer, and the recording is accurate and has not been
1-22 altered;
1-23 (4) the statement was not made in response to
1-24 questioning calculated to lead the child to make a particular
2-1 statement;
2-2 (5) every voice on the recording is identified;
2-3 (6) the person conducting the interview of the child
2-4 in the recording is expert in the handling, treatment, or <and>
2-5 investigation of child abuse cases, present at the proceeding,
2-6 called by the state as part of the state's case in chief to testify
2-7 at trial, and subject to cross-examination;
2-8 (7) immediately after a complaint was filed or an
2-9 indictment returned charging the defendant with an offense to which
2-10 this article applies, the attorney representing the state notified
2-11 the court, the defendant, and the attorney representing the
2-12 defendant of the existence of the recording and that the recording
2-13 may be used at the trial of the offense;
2-14 (8) the defendant, the attorney for the defendant, and
2-15 the expert witnesses for the defendant were afforded an opportunity
2-16 to view the recording before it is offered into evidence and, if a
2-17 proceeding was requested as provided by Subsection (b) of this
2-18 section, in a proceeding conducted before a district court judge
2-19 but outside the presence of the jury were afforded an opportunity
2-20 to cross-examine the child as provided by Subsection (b) of this
2-21 section from any time immediately following the filing of the
2-22 complaint or the returning of an indictment charging the defendant
2-23 with an offense to which this article applies until the date the
2-24 trial begins;
2-25 (9) the recording of the cross-examination, if there
2-26 is one, is admissible under Subsection (b) of this section;
2-27 (10) before giving his testimony, the child was placed
3-1 under oath or was otherwise admonished in a manner appropriate to
3-2 the child's age and maturity to testify truthfully;
3-3 (11) the court finds from the recording or through an
3-4 in camera examination of the child that the child was competent to
3-5 testify at the time that the recording was made; and
3-6 (12) only one continuous recording of the child was
3-7 made or the necessity for pauses in the recordings or for multiple
3-8 recordings has been established at trial.
3-9 SECTION 2. This Act takes effect September 1, 1993, and
3-10 applies only to the recording of an oral statement made on or after
3-11 that date. An oral statement recorded before the effective date of
3-12 this Act is governed by the law in effect at the time the statement
3-13 was recorded and that law is continued in effect for that purpose.
3-14 SECTION 3. The importance of this legislation and the
3-15 crowded condition of the calendars in both houses create an
3-16 emergency and an imperative public necessity that the
3-17 constitutional rule requiring bills to be read on three several
3-18 days in each house be suspended, and this rule is hereby suspended.