By Shapiro S.B. No. 873
75R7024 GWK-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the manner in which the testimony of a child who is the
1-3 victim of or witness to an alleged offense may be taken in certain
1-4 criminal proceedings.
1-5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-6 SECTION 1. Section 1, Article 38.071, Code of Criminal
1-7 Procedure, is amended to read as follows:
1-8 Sec. 1. This article applies only to a hearing or proceeding
1-9 in which:
1-10 (1) a child younger than 13 years of age testifies
1-11 about [the prosecution of] an offense; [defined by any of the
1-12 following sections of the Penal Code if the offense is alleged to
1-13 have been committed against a child 12 years of age or younger] and
1-14 (2) [if] the [trial] court finds that the child is
1-15 unavailable to testify in the presence of the defendant [at the
1-16 trial of the offense, and applies only to the statements or
1-17 testimony of that child:]
1-18 [(1) Section 21.11 (Indecency with a Child);]
1-19 [(2) Section 22.011 (Sexual Assault);]
1-20 [(3) Section 22.02 (Aggravated Assault);]
1-21 [(4) Section 22.021 (Aggravated Sexual Assault);]
1-22 [(5) Section 22.04(e) (Injury to a Child, Elderly
1-23 Individual, or Disabled Individual);]
1-24 [(6) Section 22.04(f) (Injury to a Child, Elderly
2-1 Individual, or Disabled Individual), if the conduct is committed
2-2 intentionally or knowingly;]
2-3 [(7) Section 25.02 (Prohibited Sexual Conduct); or]
2-4 [(8) Section 43.25 (Sexual Performance by a Child)].
2-5 SECTION 2. Section 2(c), Article 38.071, Code of Criminal
2-6 Procedure, is amended to read as follows:
2-7 (c) A recording made under Subsection (a) of this section is
2-8 not admissible into evidence unless a recording made under
2-9 Subsection (b) is admitted at the same time if a recording under
2-10 Subsection (b) was requested prior to the time of the hearing or
2-11 proceeding [trial].
2-12 SECTION 3. Section 3(a), Article 38.071, Code of Criminal
2-13 Procedure, is amended to read as follows:
2-14 (a) On its own motion or on the motion of the attorney
2-15 representing the state or the attorney representing the defendant,
2-16 the court may order that the testimony of the child be taken
2-17 [during the trial] in a room other than the courtroom and be
2-18 televised by closed circuit equipment in the courtroom to be viewed
2-19 by the court and the finder of fact. To the extent practicable,
2-20 only the judge, the court reporter, the attorneys for the defendant
2-21 and for the state, persons necessary to operate the equipment, and
2-22 any person whose presence would contribute to the welfare and
2-23 well-being of the child may be present in the room with the child
2-24 during his testimony. Only the attorneys and the judge may
2-25 question the child. To the extent practicable, the persons
2-26 necessary to operate the equipment shall be confined to an adjacent
2-27 room or behind a screen or mirror that permits them to see and hear
3-1 the child during his testimony, but does not permit the child to
3-2 see or hear them. The court shall permit the defendant to observe
3-3 and hear the testimony of the child and to communicate
3-4 contemporaneously with his attorney during periods of recess or by
3-5 audio contact, but the court shall attempt to ensure that the child
3-6 cannot hear or see the defendant. The court shall permit the
3-7 attorney for the defendant adequate opportunity to confer with the
3-8 defendant during cross-examination of the child. On application of
3-9 the attorney for the defendant, the court may recess the proceeding
3-10 before or during cross-examination of the child for a reasonable
3-11 time to allow the attorney for the defendant to confer with
3-12 defendant.
3-13 SECTION 4. Sections 4(a) and (b), Article 38.071, Code of
3-14 Criminal Procedure, are amended to read as follows:
3-15 (a) After an indictment has been returned or a complaint
3-16 filed [charging the defendant with an offense to which this article
3-17 applies], on its own motion or on the motion of the attorney
3-18 representing the state or the attorney representing the defendant,
3-19 the court may order that the testimony of the child be taken
3-20 outside the courtroom and be recorded for showing in the courtroom
3-21 before the court and the finder of fact. To the extent
3-22 practicable, only those persons permitted to be present at the
3-23 taking of testimony under Section 3 of this article may be present
3-24 during the taking of the child's testimony, and the persons
3-25 operating the equipment shall be confined from the child's sight
3-26 and hearing as provided by Section 3. The court shall permit the
3-27 defendant to observe and hear the testimony of the child and to
4-1 communicate contemporaneously with his attorney during periods of
4-2 recess or by audio contact but shall attempt to ensure that the
4-3 child cannot hear or see the defendant.
4-4 (b) The court may set any other conditions and limitations
4-5 on the taking of the testimony that it finds just and appropriate,
4-6 taking into consideration the interests of the child, the rights of
4-7 the defendant, and any other relevant factors. The court shall
4-8 also ensure that:
4-9 (1) the recording is both visual and aural and is
4-10 recorded on film or videotape or by other electronic means;
4-11 (2) the recording equipment was capable of making an
4-12 accurate recording, the operator was competent, the quality of the
4-13 recording is sufficient to allow the court and the finder of fact
4-14 to assess the demeanor of the child and the interviewer, and the
4-15 recording is accurate and is not altered;
4-16 (3) each voice on the recording is identified;
4-17 (4) the defendant, the attorneys for each party, and
4-18 the expert witnesses for each party are afforded an opportunity to
4-19 view the recording before it is shown in the courtroom;
4-20 (5) before giving his testimony, the child was placed
4-21 under oath or was otherwise admonished in a manner appropriate to
4-22 the child's age and maturity to testify truthfully;
4-23 (6) the court finds from the recording or through an
4-24 in camera examination of the child that the child was competent to
4-25 testify at the time the recording was made; and
4-26 (7) only one continuous recording of the child was
4-27 made or the necessity for pauses in the recordings or for multiple
5-1 recordings is established at the hearing or proceeding [trial].
5-2 SECTION 5. Subsections (a) and (b), Section 5, Article
5-3 38.071, Code of Criminal Procedure, are amended to read as follows:
5-4 (a) On the motion of the attorney representing the state or
5-5 the attorney representing the defendant and on a finding by the
5-6 [trial] court that the following requirements have been
5-7 substantially satisfied, the recording of an oral statement of the
5-8 child made before a complaint has been filed or an indictment
5-9 returned [charging any person with an offense to which this article
5-10 applies] is admissible into evidence if:
5-11 (1) no attorney or peace officer was present when the
5-12 statement was made;
5-13 (2) the recording is both visual and aural and is
5-14 recorded on film or videotape or by other electronic means;
5-15 (3) the recording equipment was capable of making an
5-16 accurate recording, the operator of the equipment was competent,
5-17 the quality of the recording is sufficient to allow the court and
5-18 the finder of fact to assess the demeanor of the child and the
5-19 interviewer, and the recording is accurate and has not been
5-20 altered;
5-21 (4) the statement was not made in response to
5-22 questioning calculated to lead the child to make a particular
5-23 statement;
5-24 (5) every voice on the recording is identified;
5-25 (6) the person conducting the interview of the child
5-26 in the recording is expert in the handling, treatment, and
5-27 investigation of child abuse cases, present at the hearing or
6-1 proceeding, called by the state [as part of the state's case in
6-2 chief to testify at trial], and subject to cross-examination;
6-3 (7) immediately after a complaint was filed or an
6-4 indictment returned [charging the defendant with an offense to
6-5 which this article applies], the attorney representing the state
6-6 notified the court, the defendant, and the attorney representing
6-7 the defendant of the existence of the recording [and that the
6-8 recording may be used at the trial of the offense];
6-9 (8) the defendant, the attorney for the defendant, and
6-10 the expert witnesses for the defendant were afforded an opportunity
6-11 to view the recording before it is offered into evidence and, if a
6-12 proceeding was requested as provided by Subsection (b) of this
6-13 section, in a proceeding conducted before a district court judge
6-14 but outside the presence of the jury were afforded an opportunity
6-15 to cross-examine the child as provided by Subsection (b) of this
6-16 section from any time immediately following the filing of the
6-17 complaint or the returning of an indictment charging the defendant
6-18 [with an offense to which this article applies] until the date the
6-19 hearing or proceeding [trial] begins;
6-20 (9) the recording of the cross-examination, if there
6-21 is one, is admissible under Subsection (b) of this section;
6-22 (10) before giving his testimony, the child was placed
6-23 under oath or was otherwise admonished in a manner appropriate to
6-24 the child's age and maturity to testify truthfully;
6-25 (11) the court finds from the recording or through an
6-26 in camera examination of the child that the child was competent to
6-27 testify at the time that the recording was made; and
7-1 (12) only one continuous recording of the child was
7-2 made or the necessity for pauses in the recordings or for multiple
7-3 recordings has been established at the hearing or proceeding
7-4 [trial].
7-5 (b) On the motion of the attorney representing the
7-6 defendant, a district court may order that the cross-examination of
7-7 the child be taken and be recorded before the judge of that court
7-8 at any time until a recording made in accordance with Subsection
7-9 (a) of this section has been introduced into evidence at the
7-10 hearing or proceeding [trial]. On a finding by the [trial] court
7-11 that the following requirements were satisfied, the recording of
7-12 the cross-examination of the child is admissible into evidence and
7-13 shall be viewed by the finder of fact only after the finder of fact
7-14 has viewed the recording authorized by Subsection (a) of this
7-15 section if:
7-16 (1) the recording is both visual and aural and is
7-17 recorded on film or videotape or by other electronic means;
7-18 (2) the recording equipment was capable of making an
7-19 accurate recording, the operator of the equipment was competent,
7-20 the quality of the recording is sufficient to allow the court and
7-21 the finder of fact to assess the demeanor of the child and the
7-22 attorney representing the defendant, and the recording is accurate
7-23 and has not been altered;
7-24 (3) every voice on the recording is identified;
7-25 (4) the defendant, the attorney representing the
7-26 defendant, the attorney representing the state, and the expert
7-27 witnesses for the defendant and the state were afforded an
8-1 opportunity to view the recording before the hearing or proceeding
8-2 [trial] began;
8-3 (5) the child was placed under oath before the
8-4 cross-examination began or was otherwise admonished in a manner
8-5 appropriate to the child's age and maturity to testify truthfully;
8-6 and
8-7 (6) only one continuous recording of the child was
8-8 made or the necessity for pauses in the recordings or for multiple
8-9 recordings was established at the hearing or proceeding [trial].
8-10 SECTION 6. Section 8(a), Article 38.071, Code of Criminal
8-11 Procedure, is amended to read as follows:
8-12 (a) In making a determination of unavailability under this
8-13 article, the court shall consider relevant factors including the
8-14 relationship of the defendant to the child, the character and
8-15 duration of the alleged offense, the age, maturity, and emotional
8-16 stability of the child, and the time elapsed since the alleged
8-17 offense, and whether the child is more likely than not to be
8-18 unavailable to testify because:
8-19 (1) of emotional or physical causes, including the
8-20 confrontation with the defendant [or the ordinary involvement as
8-21 complainant in the courtroom trial]; or
8-22 (2) the child would suffer undue psychological or
8-23 physical harm through his involvement at the hearing or proceeding
8-24 [trial].
8-25 SECTION 7. Section 9, Article 38.071, Code of Criminal
8-26 Procedure, is amended to read as follows:
8-27 Sec. 9. If the court finds the testimony taken under
9-1 Section 2 or 5 of this article is admissible into evidence or if
9-2 the court orders the testimony to be taken under Section 3 or 4 of
9-3 this article and if the identity of the perpetrator is a contested
9-4 issue, the child additionally must make an in-person identification
9-5 of the defendant either at or before the hearing or proceeding
9-6 [trial].
9-7 SECTION 8. Section 10, Article 38.071, Code of Criminal
9-8 Procedure, is amended to read as follows:
9-9 Sec. 10. In ordering a child to testify under this article,
9-10 the court shall take all reasonable steps necessary and available
9-11 to minimize undue psychological trauma to the child and to minimize
9-12 the emotional and physical stress to the child caused by relevant
9-13 factors, including the confrontation with the defendant and the
9-14 ordinary participation of the witness [complainant] in the
9-15 courtroom.
9-16 SECTION 9. This Act takes effect September 1, 1997.
9-17 SECTION 10. The importance of this legislation and the
9-18 crowded condition of the calendars in both houses create an
9-19 emergency and an imperative public necessity that the
9-20 constitutional rule requiring bills to be read on three several
9-21 days in each house be suspended, and this rule is hereby suspended.