By: Shapiro S.B. No. 873
A BILL TO BE ENTITLED
AN ACT
1-1 relating to the manner in which the testimony of a child who is the
1-2 victim of or witness to an alleged offense may be taken in certain
1-3 criminal proceedings.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Article 38.071, Code of Criminal Procedure, is
1-6 amended to read as follows:
1-7 Art. 38.071. TESTIMONY OF CHILD [WHO IS] VICTIM OR WITNESS
1-8 [OF OFFENSE]
1-9 Sec. 1. This article applies only to the statements or
1-10 testimony of a child 12 years of age or younger in a proceeding in
1-11 the prosecution of an offense [defined by any of the following
1-12 sections of the Penal Code if the offense is] alleged to have been
1-13 committed against a child 12 years of age or younger or to a
1-14 proceeding in the prosecution of an offense in which a child 12
1-15 years of age or younger is a witness, and only if the trial court
1-16 finds that the child is unavailable to testify in the courtroom [at
1-17 the trial of the offense, and applies only to the statements or
1-18 testimony of that child:]
1-19 [(1) Section 21.11 (Indecency with a Child);]
1-20 [(2) Section 22.011 (Sexual Assault);]
1-21 [(3) Section 22.02 (Aggravated Assault);]
1-22 [(4) Section 22.021 (Aggravated Sexual Assault);]
1-23 [(5) Section 22.04(e) (Injury to a Child, Elderly
2-1 Individual, or Disabled Individual);]
2-2 [(6) Section 22.04(f) (Injury to a Child, Elderly
2-3 Individual, or Disabled Individual), if the conduct is committed
2-4 intentionally or knowingly;]
2-5 [(7) Section 25.02 (Prohibited Sexual Conduct); or]
2-6 [(8) Section 43.25 (Sexual Performance by a Child)].
2-7 Sec. 2. (a) In making a determination of unavailability
2-8 under this article, the court shall consider relevant factors
2-9 including the relationship of the defendant to the child, the
2-10 character and duration of the alleged offense, the age, maturity,
2-11 and emotional stability of the child, and the time elapsed since
2-12 the alleged offense and whether the child is more likely than not
2-13 to be unavailable to testify because:
2-14 (1) of emotional or physical causes, including the
2-15 confrontation with the defendant, as opposed to the ordinary
2-16 involvement as complainant or witness in the courtroom trial; or
2-17 (2) the child would suffer undue psychological or
2-18 physical harm through the child's testimony in the courtroom such
2-19 that the child cannot effectively communicate.
2-20 (b) A determination of unavailability under this article can
2-21 be made after an earlier determination of availability. A
2-22 determination of availability under this article can be made after
2-23 an earlier determination of unavailability. [The recording of an
2-24 oral statement of the child made before the indictment is returned
2-25 or the complaint has been filed is admissible into evidence if the
3-1 court makes a determination that the factual issues of identity or
3-2 actual occurrence were fully and fairly inquired into in a detached
3-3 manner by a neutral individual experienced in child abuse cases
3-4 that seeks to find the truth of the matter.]
3-5 [(b) If a recording is made under Subsection (a) of this
3-6 section and after an indictment is returned or a complaint has been
3-7 filed, by motion of the attorney representing the state or the
3-8 attorney representing the defendant and on the approval of the
3-9 court, both attorneys may propound written interrogatories that
3-10 shall be presented by the same neutral individual who made the
3-11 initial inquiries, if possible, and recorded under the same or
3-12 similar circumstances of the original recording with the time and
3-13 date of the inquiry clearly indicated in the recording.]
3-14 [(c) A recording made under Subsection (a) of this section
3-15 is not admissible into evidence unless a recording made under
3-16 Subsection (b) is admitted at the same time if a recording under
3-17 Subsection (b) was requested prior to time of trial.]
3-18 Sec. 3. (a) On its own motion or on the motion of the
3-19 attorney representing the state or the attorney representing the
3-20 defendant, the court on a finding of good cause may order that the
3-21 testimony of the child be taken during the trial in a room other
3-22 than the courtroom and be televised by closed circuit equipment in
3-23 the courtroom to be viewed by the court and the trier [finder] of
3-24 fact. Before authorizing the use of a closed circuit system to
3-25 transmit a child's testimony, a trial court must hear evidence and
4-1 make specific findings on the record that:
4-2 (1) the system is necessary to protect the child;
4-3 (2) the child would be traumatized by the defendant's
4-4 physical presence, not merely by being in the courtroom generally;
4-5 and
4-6 (3) the child would suffer undue psychological or
4-7 physical harm through the child's testimony in the courtroom such
4-8 that the child cannot effectively communicate.
4-9 (b) To the extent practicable, only the judge, the court
4-10 reporter, the attorneys for the defendant and for the state,
4-11 persons necessary to operate the equipment, and any person whose
4-12 presence would contribute to the welfare and well-being of the
4-13 child may be present in the room with the child during his
4-14 testimony. Only the attorneys and the judge may question the
4-15 child. If the closed circuit system used is a one-way system, the
4-16 [To the extent practicable, the persons necessary to operate the
4-17 equipment shall be confined to an adjacent room or behind a screen
4-18 or mirror that permits them to see and hear the child during his
4-19 testimony, but does not permit the child to see or hear them. The]
4-20 court shall permit the defendant to observe and hear the testimony
4-21 of the child and to communicate contemporaneously with his attorney
4-22 during periods of recess or by audio contact[, but the court shall
4-23 attempt to ensure that the child cannot hear or see the defendant].
4-24 The court shall permit the attorney for the defendant adequate
4-25 opportunity to confer with the defendant during cross-examination
5-1 of the child. On application of the attorney for the defendant,
5-2 the court may recess the proceeding before or during
5-3 cross-examination of the child for a reasonable time to allow the
5-4 attorney for the defendant to confer with defendant.
5-5 (c) [(b)] The court may set any other conditions and
5-6 limitations on the taking of the testimony that it finds just and
5-7 appropriate, taking into consideration the interests of the child,
5-8 the rights of the defendant, and any other relevant factors.
5-9 Sec. 4. [(a) After an indictment has been returned or a
5-10 complaint filed charging the defendant with an offense to which
5-11 this article applies, on its own motion or on the motion of the
5-12 attorney representing the state or the attorney representing the
5-13 defendant, the court may order that the testimony of the child be
5-14 taken outside the courtroom and be recorded for showing in the
5-15 courtroom before the court and the finder of fact. To the extent
5-16 practicable, only those persons permitted to be present at the
5-17 taking of testimony under Section 3 of this article may be present
5-18 during the taking of the child's testimony, and the persons
5-19 operating the equipment shall be confined from the child's sight
5-20 and hearing as provided by Section 3. The court shall permit the
5-21 defendant to observe and hear the testimony of the child and to
5-22 communicate contemporaneously with his attorney during periods of
5-23 recess or by audio contact but shall attempt to ensure that the
5-24 child cannot hear or see the defendant.]
5-25 [(b) The court may set any other conditions and limitations
6-1 on the taking of the testimony that it finds just and appropriate,
6-2 taking into consideration the interests of the child, the rights of
6-3 the defendant, and any other relevant factors. The court shall
6-4 also ensure that:]
6-5 [(1) the recording is both visual and aural and is
6-6 recorded on film or videotape or by other electronic means;]
6-7 [(2) the recording equipment was capable of making an
6-8 accurate recording, the operator was competent, the quality of the
6-9 recording is sufficient to allow the court and the finder of fact
6-10 to assess the demeanor of the child and the interviewer, and the
6-11 recording is accurate and is not altered;]
6-12 [(3) each voice on the recording is identified;]
6-13 [(4) the defendant, the attorneys for each party, and
6-14 the expert witnesses for each party are afforded an opportunity to
6-15 view the recording before it is shown in the courtroom;]
6-16 [(5) before giving his testimony, the child was placed
6-17 under oath or was otherwise admonished in a manner appropriate to
6-18 the child's age and maturity to testify truthfully;]
6-19 [(6) the court finds from the recording or through an
6-20 in camera examination of the child that the child was competent to
6-21 testify at the time the recording was made; and]
6-22 [(7) only one continuous recording of the child was
6-23 made or the necessity for pauses in the recordings or for multiple
6-24 recordings is established at trial.]
6-25 [(c) After a complaint has been filed or an indictment
7-1 returned charging the defendant, on the motion of the attorney
7-2 representing the state, the court may order that the deposition of
7-3 the child be taken outside of the courtroom in the same manner as a
7-4 deposition may be taken in a civil matter. A deposition taken
7-5 under this subsection is admissible into evidence.]
7-6 [Sec. 5. (a) On the motion of the attorney representing the
7-7 state or the attorney representing the defendant and on a finding
7-8 by the trial court that the following requirements have been
7-9 substantially satisfied, the recording of an oral statement of the
7-10 child made before a complaint has been filed or an indictment
7-11 returned charging any person with an offense to which this article
7-12 applies is admissible into evidence if:]
7-13 [(1) no attorney or peace officer was present when the
7-14 statement was made;]
7-15 [(2) the recording is both visual and aural and is
7-16 recorded on film or videotape or by other electronic means;]
7-17 [(3) the recording equipment was capable of making an
7-18 accurate recording, the operator of the equipment was competent,
7-19 the quality of the recording is sufficient to allow the court and
7-20 the finder of fact to assess the demeanor of the child and the
7-21 interviewer, and the recording is accurate and has not been
7-22 altered;]
7-23 [(4) the statement was not made in response to
7-24 questioning calculated to lead the child to make a particular
7-25 statement;]
8-1 [(5) every voice on the recording is identified;]
8-2 [(6) the person conducting the interview of the child
8-3 in the recording is expert in the handling, treatment, and
8-4 investigation of child abuse cases, present at the proceeding,
8-5 called by the state as part of the state's case in chief to testify
8-6 at trial, and subject to cross-examination;]
8-7 [(7) immediately after a complaint was filed or an
8-8 indictment returned charging the defendant with an offense to which
8-9 this article applies, the attorney representing the state notified
8-10 the court, the defendant, and the attorney representing the
8-11 defendant of the existence of the recording and that the recording
8-12 may be used at the trial of the offense;]
8-13 [(8) the defendant, the attorney for the defendant,
8-14 and the expert witnesses for the defendant were afforded an
8-15 opportunity to view the recording before it is offered into
8-16 evidence and, if a proceeding was requested as provided by
8-17 Subsection (b) of this section, in a proceeding conducted before a
8-18 district court judge but outside the presence of the jury were
8-19 afforded an opportunity to cross-examine the child as provided by
8-20 Subsection (b) of this section from any time immediately following
8-21 the filing of the complaint or the returning of an indictment
8-22 charging the defendant with an offense to which this article
8-23 applies until the date the trial begins;]
8-24 [(9) the recording of the cross-examination, if there
8-25 is one, is admissible under Subsection (b) of this section;]
9-1 [(10) before giving his testimony, the child was
9-2 placed under oath or was otherwise admonished in a manner
9-3 appropriate to the child's age and maturity to testify truthfully;]
9-4 [(11) the court finds from the recording or through an
9-5 in camera examination of the child that the child was competent to
9-6 testify at the time that the recording was made; and]
9-7 [(12) only one continuous recording of the child was
9-8 made or the necessity for pauses in the recordings or for multiple
9-9 recordings has been established at trial.]
9-10 [(b) On the motion of the attorney representing the
9-11 defendant, a district court may order that the cross-examination of
9-12 the child be taken and be recorded before the judge of that court
9-13 at any time until a recording made in accordance with Subsection
9-14 (a) of this section has been introduced into evidence at the trial.
9-15 On a finding by the trial court that the following requirements
9-16 were satisfied, the recording of the cross-examination of the child
9-17 is admissible into evidence and shall be viewed by the finder of
9-18 fact only after the finder of fact has viewed the recording
9-19 authorized by Subsection (a) of this section if:]
9-20 [(1) the recording is both visual and aural and is
9-21 recorded on film or videotape or by other electronic means;]
9-22 [(2) the recording equipment was capable of making an
9-23 accurate recording, the operator of the equipment was competent,
9-24 the quality of the recording is sufficient to allow the court and
9-25 the finder of fact to assess the demeanor of the child and the
10-1 attorney representing the defendant, and the recording is accurate
10-2 and has not been altered;]
10-3 [(3) every voice on the recording is identified;]
10-4 [(4) the defendant, the attorney representing the
10-5 defendant, the attorney representing the state, and the expert
10-6 witnesses for the defendant and the state were afforded an
10-7 opportunity to view the recording before the trial began;]
10-8 [(5) the child was placed under oath before the
10-9 cross-examination began or was otherwise admonished in a manner
10-10 appropriate to the child's age and maturity to testify truthfully;
10-11 and]
10-12 [(6) only one continuous recording of the child was
10-13 made or the necessity for pauses in the recordings or for multiple
10-14 recordings was established at trial.]
10-15 [(c) During cross-examination under Subsection (b) of this
10-16 section, to the extent practicable, only a district court judge,
10-17 the attorney representing the defendant, the attorney representing
10-18 the state, persons necessary to operate the equipment, and any
10-19 other person whose presence would contribute to the welfare and
10-20 well-being of the child may be present in the room with the child
10-21 during his testimony. Only the attorneys and the judge may
10-22 question the child. To the extent practicable, the persons
10-23 operating the equipment shall be confined to an adjacent room or
10-24 behind a screen or mirror that permits them to see and hear the
10-25 child during his testimony but does not permit the child to see or
11-1 hear them. The court shall permit the defendant to observe and
11-2 hear the testimony of the child and to communicate
11-3 contemporaneously with his attorney during periods of recess or by
11-4 audio contact, but shall attempt to ensure that the child cannot
11-5 hear or see the defendant.]
11-6 [(d) Under Subsection (b) of this section the district court
11-7 may set any other conditions and limitations on the taking of the
11-8 cross-examination of a child that it finds just and appropriate,
11-9 taking into consideration the interests of the child, the rights of
11-10 the defendant, and any other relevant factors.]
11-11 [Sec. 6. If the court orders the testimony of a child to be
11-12 taken under Section 3 or 4 of this article or if the court finds
11-13 the testimony of the child taken under Section 2 or 5 of this
11-14 article is admissible into evidence, the child may not be required
11-15 to testify in court at the proceeding for which the testimony was
11-16 taken, unless the court finds there is good cause.]
11-17 [Sec. 7.] In making any determination of good cause under
11-18 this article, the court shall consider the rights of the defendant,
11-19 the interests of the child, the relationship of the defendant to
11-20 the child, the character and duration of the alleged offense, any
11-21 court finding related to the availability of the child to testify,
11-22 the age, maturity, and emotional stability of the child, the time
11-23 elapsed since the alleged offense, and any other relevant factors.
11-24 [Sec. 8. (a) In making a determination of unavailability
11-25 under this article, the court shall consider relevant factors
12-1 including the relationship of the defendant to the child, the
12-2 character and duration of the alleged offense, the age, maturity,
12-3 and emotional stability of the child, and the time elapsed since
12-4 the alleged offense, and whether the child is more likely than not
12-5 to be unavailable to testify because:]
12-6 [(1) of emotional or physical causes, including the
12-7 confrontation with the defendant or the ordinary involvement as
12-8 complainant in the courtroom trial; or]
12-9 [(2) the child would suffer undue psychological or
12-10 physical harm through his involvement at trial.]
12-11 [(b) A determination of unavailability under this article
12-12 can be made after an earlier determination of availability. A
12-13 determination of availability under this article can be made after
12-14 an earlier determination of unavailability.]
12-15 [Sec. 9. If the court finds the testimony taken under
12-16 Section 2 or 5 of this article is admissible into evidence or if
12-17 the court orders the testimony to be taken under Section 3 or 4 of
12-18 this article and if the identity of the perpetrator is a contested
12-19 issue, the child additionally must make an in-person identification
12-20 of the defendant either at or before trial.]
12-21 [Sec. 10. In ordering a child to testify under this article,
12-22 the court shall take all reasonable steps necessary and available
12-23 to minimize undue psychological trauma to the child and to minimize
12-24 the emotional and physical stress to the child caused by relevant
12-25 factors, including the confrontation with the defendant and the
13-1 ordinary participation of the complainant in the courtroom.]
13-2 [Sec. 11. In a proceeding under Section 2, 3, or 4 or
13-3 Subsection (b) of Section 5 of this article, if the defendant is
13-4 not represented by counsel and the court finds that the defendant
13-5 is not able to obtain counsel for the purposes of the proceeding,
13-6 the court shall appoint counsel to represent the defendant at the
13-7 proceeding.]
13-8 [Sec. 12. In this article, "cross-examination" has the same
13-9 meaning as in other legal proceedings in the state.]
13-10 [Sec. 13. The attorney representing the state shall
13-11 determine whether to use the procedure provided in Section 2 of
13-12 this article or the procedure provided in Section 5 of this
13-13 article.]
13-14 SECTION 2. This Act takes effect September 1, 1997.
13-15 SECTION 3. The importance of this legislation and the
13-16 crowded condition of the calendars in both houses create an
13-17 emergency and an imperative public necessity that the
13-18 constitutional rule requiring bills to be read on three several
13-19 days in each house be suspended, and this rule is hereby suspended.