AEZ C.S.S.B. 873 75(R) BILL ANALYSIS CRIMINAL JURISPRUDENCE C.S.S.B. 873 By: Shapiro (Allen) 5-20-97 Committee Report (Substituted) BACKGROUND Currently, the statute allowing closed circuit testimony for children limits its use by restricting testimony to a child under the age of 12 who is the victim of one of several enumerated offenses, including child abuse and child sex abuse crimes. This legislation would allow the trial court to determine when it is appropriate for a child to testify by closed circuit equipment, based on the court's finding that a child is unavailable to testify in the courtroom, and would apply only to the statements or testimony of a child in a court proceeding, or to a court proceeding in which a child is a witness. PURPOSE As proposed, C.S.S.B. 873 establishes the manner in which the testimony of a child who is the victim of, or witness to, an alleged offense may be taken in certain criminal proceedings. RULEMAKING AUTHORITY It is the committee's opinion that this bill does not expressly grant any additional rulemaking authority to a state officer, department, agency or institution. SECTION BY SECTION ANALYSIS SECTION 1. Amends Article 38.071, Code of Criminal Procedure, as follows: Provides that this article applies only to a hearing or proceeding in which a child younger than 13 years of age testifies about an offense and the court finds that the child is unavailable to testify in the presence of the defendant. Deletes existing provisions making this article apply to a proceeding in the prosecution of certain offenses committed by a child 12 years of age or younger if the trial court finds that the child is unavailable to testify. SECTION 2. Amends Section 2(c), Article 38.071, Code of Criminal Procedure, to provide that a recording made under Subsection (a) is not admissible into evidence unless a recording made under Subsection (b) is admitted at the same time, if a recording was requested prior to the time of the hearing or proceeding, rather than prior to time of trial. SECTION 3. Amends Section 3(a), Article 38.071, Code of Criminal Procedure to set forth the terms by which the court is authorized to order that the testimony of the child be taken in certain rooms and televised by closed circuit equipment, rather than being taken during the trial under the same circumstances. SECTION 4. Makes conforming changes. SECTION 5. Amends Sections 5(a) and (b), Article 38.071, Code of Criminal Procedure, to set forth the terms by which the recording of an oral statement of the child made before a complaint has been filed or an indictment returned is admissible into evidence if the person conducting the interview of the child in the recording is called by the state, rather than called by the state as part of the state's case in chief to testify at trial; and the attorney representing the state notified the attorney representing the defendant of the existence of the recording, rather than notifying the same that the recording may be used at the trial of the offense. Makes conforming changes. SECTION 6. Amends Section 8(a), Article 38.071, Code of Criminal Procedure, by deleting the requirement that the court, in making a determination of unavailability, consider the ordinary involvement as complainant in the courtroom. Makes conforming changes. SECTION 7. Amends Section 9, Article 38.071, Code of Criminal Procedure by making conforming changes. SECTION 8. Amends Section 10, Article 38.071, Code of Criminal Procedure, to require the court, in ordering a child to testify, to take reasonable steps necessary to minimize psychological trauma to the child caused by factors such as the ordinary participation of the witness, rather than complainant, in the courtroom. SECTION 9. Effective date: September 1, 1997. SECTION 10. Emergency Clause. COMPARISON OF ORIGINAL TO SUBSTITUTE The original bill amended the hearing for Article 38.071, the substitute does not. The original applied to the testimony of a child 12 years of younger, the substitute applies to a child younger than 13 years of age. The original bill required the court to consider certain relevant factors in making a determination of unavailability and deleted existing text regarding the recording of an oral statement of a child. The substitute does not. The substitute sets forth the terms by which the court is authorized to order that the testimony of the child be taken in certain rooms and televised by closed circuit equipment, rather than being taken during the trial under the same circumstances. The original bill deleted language regarding the persons necessary to operate the equipment and the court's responsibility to ensure that the child cannot hear or see the defendant. The original bill deleted former Sections 4-6, and 8-13. The substitute does not.