1-1 By: Shapiro S.B. No. 873
1-2 (In the Senate - Filed March 3, 1997; March 5, 1997, read
1-3 first time and referred to Committee on Criminal Justice;
1-4 April 22, 1997, reported adversely, with favorable Committee
1-5 Substitute by the following vote: Yeas 7, Nays 0; April 22, 1997,
1-6 sent to printer.)
1-7 COMMITTEE SUBSTITUTE FOR S.B. No. 873 By: Shapiro
1-8 A BILL TO BE ENTITLED
1-9 AN ACT
1-10 relating to the manner in which the testimony of a child who is the
1-11 victim of or witness to an alleged offense may be taken in certain
1-12 criminal proceedings.
1-13 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-14 SECTION 1. Article 38.071, Code of Criminal Procedure, is
1-15 amended to read as follows:
1-16 Art. 38.071. TESTIMONY OF CHILD [WHO IS] VICTIM OR WITNESS
1-17 [OF OFFENSE]
1-18 Sec. 1. This article applies only to the statements or
1-19 testimony of a child 12 years of age or younger in a proceeding in
1-20 the prosecution of an offense [defined by any of the following
1-21 sections of the Penal Code if the offense is] alleged to have been
1-22 committed against a child 12 years of age or younger or to a
1-23 proceeding in the prosecution of an offense in which a child 12
1-24 years of age or younger is a witness, and only if the trial court
1-25 finds that the child is unavailable to testify in the courtroom [at
1-26 the trial of the offense, and applies only to the statements or
1-27 testimony of that child:]
1-28 [(1) Section 21.11 (Indecency with a Child);]
1-29 [(2) Section 22.011 (Sexual Assault);]
1-30 [(3) Section 22.02 (Aggravated Assault);]
1-31 [(4) Section 22.021 (Aggravated Sexual Assault);]
1-32 [(5) Section 22.04(e) (Injury to a Child, Elderly
1-33 Individual, or Disabled Individual);]
1-34 [(6) Section 22.04(f) (Injury to a Child, Elderly
1-35 Individual, or Disabled Individual), if the conduct is committed
1-36 intentionally or knowingly;]
1-37 [(7) Section 25.02 (Prohibited Sexual Conduct); or]
1-38 [(8) Section 43.25 (Sexual Performance by a Child)].
1-39 Sec. 2. (a) In making a determination of unavailability
1-40 under this article, the court shall consider relevant factors
1-41 including the relationship of the defendant to the child, the
1-42 character and duration of the alleged offense, the age, maturity,
1-43 and emotional stability of the child, and the time elapsed since
1-44 the alleged offense and whether the child is more likely than not
1-45 to be unavailable to testify because:
1-46 (1) of emotional or physical causes, including the
1-47 confrontation with the defendant, as opposed to the ordinary
1-48 involvement as complainant or witness in the courtroom trial; or
1-49 (2) the child would suffer undue psychological or
1-50 physical harm through the child's testimony in the courtroom such
1-51 that the child cannot effectively communicate.
1-52 (b) A determination of unavailability under this article can
1-53 be made after an earlier determination of availability. A
1-54 determination of availability under this article can be made after
1-55 an earlier determination of unavailability. [The recording of an
1-56 oral statement of the child made before the indictment is returned
1-57 or the complaint has been filed is admissible into evidence if the
1-58 court makes a determination that the factual issues of identity or
1-59 actual occurrence were fully and fairly inquired into in a detached
1-60 manner by a neutral individual experienced in child abuse cases
1-61 that seeks to find the truth of the matter.]
1-62 [(b) If a recording is made under Subsection (a) of this
1-63 section and after an indictment is returned or a complaint has been
1-64 filed, by motion of the attorney representing the state or the
2-1 attorney representing the defendant and on the approval of the
2-2 court, both attorneys may propound written interrogatories that
2-3 shall be presented by the same neutral individual who made the
2-4 initial inquiries, if possible, and recorded under the same or
2-5 similar circumstances of the original recording with the time and
2-6 date of the inquiry clearly indicated in the recording.]
2-7 [(c) A recording made under Subsection (a) of this section
2-8 is 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 time of trial.]
2-11 Sec. 3. (a) On its own motion or on the motion of the
2-12 attorney representing the state or the attorney representing the
2-13 defendant, the court on a finding of good cause may order that the
2-14 testimony of the child be taken during the trial in a room other
2-15 than the courtroom and be televised by closed circuit equipment in
2-16 the courtroom to be viewed by the court and the trier [finder] of
2-17 fact. Before authorizing the use of a closed circuit system to
2-18 transmit a child's testimony, a trial court must hear evidence and
2-19 make specific findings on the record that:
2-20 (1) the system is necessary to protect the child;
2-21 (2) the child would be traumatized by the defendant's
2-22 physical presence, not merely by being in the courtroom generally;
2-23 and
2-24 (3) the child would suffer undue psychological or
2-25 physical harm through the child's testimony in the courtroom such
2-26 that the child cannot effectively communicate.
2-27 (b) To the extent practicable, only the judge, the court
2-28 reporter, the attorneys for the defendant and for the state,
2-29 persons necessary to operate the equipment, and any person whose
2-30 presence would contribute to the welfare and well-being of the
2-31 child may be present in the room with the child during his
2-32 testimony. Only the attorneys and the judge may question the
2-33 child. If the closed circuit system used is a one-way system, the
2-34 [To the extent practicable, the persons necessary to operate the
2-35 equipment shall be confined to an adjacent room or behind a screen
2-36 or mirror that permits them to see and hear the child during his
2-37 testimony, but does not permit the child to see or hear them. The]
2-38 court shall permit the defendant to observe and hear the testimony
2-39 of the child and to communicate contemporaneously with his attorney
2-40 during periods of recess or by audio contact[, but the court shall
2-41 attempt to ensure that the child cannot hear or see the defendant].
2-42 The court shall permit the attorney for the defendant adequate
2-43 opportunity to confer with the defendant during cross-examination
2-44 of the child. On application of the attorney for the defendant,
2-45 the court may recess the proceeding before or during
2-46 cross-examination of the child for a reasonable time to allow the
2-47 attorney for the defendant to confer with defendant.
2-48 (c) [(b)] The court may set any other conditions and
2-49 limitations on the taking of the testimony that it finds just and
2-50 appropriate, taking into consideration the interests of the child,
2-51 the rights of the defendant, and any other relevant factors.
2-52 Sec. 4. [(a) After an indictment has been returned or a
2-53 complaint filed charging the defendant with an offense to which
2-54 this article applies, on its own motion or on the motion of the
2-55 attorney representing the state or the attorney representing the
2-56 defendant, the court may order that the testimony of the child be
2-57 taken outside the courtroom and be recorded for showing in the
2-58 courtroom before the court and the finder of fact. To the extent
2-59 practicable, only those persons permitted to be present at the
2-60 taking of testimony under Section 3 of this article may be present
2-61 during the taking of the child's testimony, and the persons
2-62 operating the equipment shall be confined from the child's sight
2-63 and hearing as provided by Section 3. The court shall permit the
2-64 defendant to observe and hear the testimony of the child and to
2-65 communicate contemporaneously with his attorney during periods of
2-66 recess or by audio contact but shall attempt to ensure that the
2-67 child cannot hear or see the defendant.]
2-68 [(b) The court may set any other conditions and limitations
2-69 on the taking of the testimony that it finds just and appropriate,
3-1 taking into consideration the interests of the child, the rights of
3-2 the defendant, and any other relevant factors. The court shall
3-3 also ensure that:]
3-4 [(1) the recording is both visual and aural and is
3-5 recorded on film or videotape or by other electronic means;]
3-6 [(2) the recording equipment was capable of making an
3-7 accurate recording, the operator was competent, the quality of the
3-8 recording is sufficient to allow the court and the finder of fact
3-9 to assess the demeanor of the child and the interviewer, and the
3-10 recording is accurate and is not altered;]
3-11 [(3) each voice on the recording is identified;]
3-12 [(4) the defendant, the attorneys for each party, and
3-13 the expert witnesses for each party are afforded an opportunity to
3-14 view the recording before it is shown in the courtroom;]
3-15 [(5) before giving his testimony, the child was placed
3-16 under oath or was otherwise admonished in a manner appropriate to
3-17 the child's age and maturity to testify truthfully;]
3-18 [(6) the court finds from the recording or through an
3-19 in camera examination of the child that the child was competent to
3-20 testify at the time the recording was made; and]
3-21 [(7) only one continuous recording of the child was
3-22 made or the necessity for pauses in the recordings or for multiple
3-23 recordings is established at trial.]
3-24 [(c) After a complaint has been filed or an indictment
3-25 returned charging the defendant, on the motion of the attorney
3-26 representing the state, the court may order that the deposition of
3-27 the child be taken outside of the courtroom in the same manner as a
3-28 deposition may be taken in a civil matter. A deposition taken
3-29 under this subsection is admissible into evidence.]
3-30 [Sec. 5. (a) On the motion of the attorney representing the
3-31 state or the attorney representing the defendant and on a finding
3-32 by the trial court that the following requirements have been
3-33 substantially satisfied, the recording of an oral statement of the
3-34 child made before a complaint has been filed or an indictment
3-35 returned charging any person with an offense to which this article
3-36 applies is admissible into evidence if:]
3-37 [(1) no attorney or peace officer was present when the
3-38 statement was made;]
3-39 [(2) the recording is both visual and aural and is
3-40 recorded on film or videotape or by other electronic means;]
3-41 [(3) the recording equipment was capable of making an
3-42 accurate recording, the operator of the equipment was competent,
3-43 the quality of the recording is sufficient to allow the court and
3-44 the finder of fact to assess the demeanor of the child and the
3-45 interviewer, and the recording is accurate and has not been
3-46 altered;]
3-47 [(4) the statement was not made in response to
3-48 questioning calculated to lead the child to make a particular
3-49 statement;]
3-50 [(5) every voice on the recording is identified;]
3-51 [(6) the person conducting the interview of the child
3-52 in the recording is expert in the handling, treatment, and
3-53 investigation of child abuse cases, present at the proceeding,
3-54 called by the state as part of the state's case in chief to testify
3-55 at trial, and subject to cross-examination;]
3-56 [(7) immediately after a complaint was filed or an
3-57 indictment returned charging the defendant with an offense to which
3-58 this article applies, the attorney representing the state notified
3-59 the court, the defendant, and the attorney representing the
3-60 defendant of the existence of the recording and that the recording
3-61 may be used at the trial of the offense;]
3-62 [(8) the defendant, the attorney for the defendant,
3-63 and the expert witnesses for the defendant were afforded an
3-64 opportunity to view the recording before it is offered into
3-65 evidence and, if a proceeding was requested as provided by
3-66 Subsection (b) of this section, in a proceeding conducted before a
3-67 district court judge but outside the presence of the jury were
3-68 afforded an opportunity to cross-examine the child as provided by
3-69 Subsection (b) of this section from any time immediately following
4-1 the filing of the complaint or the returning of an indictment
4-2 charging the defendant with an offense to which this article
4-3 applies until the date the trial begins;]
4-4 [(9) the recording of the cross-examination, if there
4-5 is one, is admissible under Subsection (b) of this section;]
4-6 [(10) before giving his testimony, the child was
4-7 placed under oath or was otherwise admonished in a manner
4-8 appropriate to the child's age and maturity to testify truthfully;]
4-9 [(11) the court finds from the recording or through an
4-10 in camera examination of the child that the child was competent to
4-11 testify at the time that the recording was made; and]
4-12 [(12) only one continuous recording of the child was
4-13 made or the necessity for pauses in the recordings or for multiple
4-14 recordings has been established at trial.]
4-15 [(b) On the motion of the attorney representing the
4-16 defendant, a district court may order that the cross-examination of
4-17 the child be taken and be recorded before the judge of that court
4-18 at any time until a recording made in accordance with Subsection
4-19 (a) of this section has been introduced into evidence at the trial.
4-20 On a finding by the trial court that the following requirements
4-21 were satisfied, the recording of the cross-examination of the child
4-22 is admissible into evidence and shall be viewed by the finder of
4-23 fact only after the finder of fact has viewed the recording
4-24 authorized by Subsection (a) of this section if:]
4-25 [(1) the recording is both visual and aural and is
4-26 recorded on film or videotape or by other electronic means;]
4-27 [(2) the recording equipment was capable of making an
4-28 accurate recording, the operator of the equipment was competent,
4-29 the quality of the recording is sufficient to allow the court and
4-30 the finder of fact to assess the demeanor of the child and the
4-31 attorney representing the defendant, and the recording is accurate
4-32 and has not been altered;]
4-33 [(3) every voice on the recording is identified;]
4-34 [(4) the defendant, the attorney representing the
4-35 defendant, the attorney representing the state, and the expert
4-36 witnesses for the defendant and the state were afforded an
4-37 opportunity to view the recording before the trial began;]
4-38 [(5) the child was placed under oath before the
4-39 cross-examination began or was otherwise admonished in a manner
4-40 appropriate to the child's age and maturity to testify truthfully;
4-41 and]
4-42 [(6) only one continuous recording of the child was
4-43 made or the necessity for pauses in the recordings or for multiple
4-44 recordings was established at trial.]
4-45 [(c) During cross-examination under Subsection (b) of this
4-46 section, to the extent practicable, only a district court judge,
4-47 the attorney representing the defendant, the attorney representing
4-48 the state, persons necessary to operate the equipment, and any
4-49 other person whose presence would contribute to the welfare and
4-50 well-being of the child may be present in the room with the child
4-51 during his testimony. Only the attorneys and the judge may
4-52 question the child. To the extent practicable, the persons
4-53 operating the equipment shall be confined to an adjacent room or
4-54 behind a screen or mirror that permits them to see and hear the
4-55 child during his testimony but does not permit the child to see or
4-56 hear them. The court shall permit the defendant to observe and
4-57 hear the testimony of the child and to communicate
4-58 contemporaneously with his attorney during periods of recess or by
4-59 audio contact, but shall attempt to ensure that the child cannot
4-60 hear or see the defendant.]
4-61 [(d) Under Subsection (b) of this section the district court
4-62 may set any other conditions and limitations on the taking of the
4-63 cross-examination of a child that it finds just and appropriate,
4-64 taking into consideration the interests of the child, the rights of
4-65 the defendant, and any other relevant factors.]
4-66 [Sec. 6. If the court orders the testimony of a child to be
4-67 taken under Section 3 or 4 of this article or if the court finds
4-68 the testimony of the child taken under Section 2 or 5 of this
4-69 article is admissible into evidence, the child may not be required
5-1 to testify in court at the proceeding for which the testimony was
5-2 taken, unless the court finds there is good cause.]
5-3 [Sec. 7.] In making any determination of good cause under
5-4 this article, the court shall consider the rights of the defendant,
5-5 the interests of the child, the relationship of the defendant to
5-6 the child, the character and duration of the alleged offense, any
5-7 court finding related to the availability of the child to testify,
5-8 the age, maturity, and emotional stability of the child, the time
5-9 elapsed since the alleged offense, and any other relevant factors.
5-10 [Sec. 8. (a) In making a determination of unavailability
5-11 under this article, the court shall consider relevant factors
5-12 including the relationship of the defendant to the child, the
5-13 character and duration of the alleged offense, the age, maturity,
5-14 and emotional stability of the child, and the time elapsed since
5-15 the alleged offense, and whether the child is more likely than not
5-16 to be unavailable to testify because:]
5-17 [(1) of emotional or physical causes, including the
5-18 confrontation with the defendant or the ordinary involvement as
5-19 complainant in the courtroom trial; or]
5-20 [(2) the child would suffer undue psychological or
5-21 physical harm through his involvement at trial.]
5-22 [(b) A determination of unavailability under this article
5-23 can be made after an earlier determination of availability. A
5-24 determination of availability under this article can be made after
5-25 an earlier determination of unavailability.]
5-26 [Sec. 9. If the court finds the testimony taken under
5-27 Section 2 or 5 of this article is admissible into evidence or if
5-28 the court orders the testimony to be taken under Section 3 or 4 of
5-29 this article and if the identity of the perpetrator is a contested
5-30 issue, the child additionally must make an in-person identification
5-31 of the defendant either at or before trial.]
5-32 [Sec. 10. In ordering a child to testify under this article,
5-33 the court shall take all reasonable steps necessary and available
5-34 to minimize undue psychological trauma to the child and to minimize
5-35 the emotional and physical stress to the child caused by relevant
5-36 factors, including the confrontation with the defendant and the
5-37 ordinary participation of the complainant in the courtroom.]
5-38 [Sec. 11. In a proceeding under Section 2, 3, or 4 or
5-39 Subsection (b) of Section 5 of this article, if the defendant is
5-40 not represented by counsel and the court finds that the defendant
5-41 is not able to obtain counsel for the purposes of the proceeding,
5-42 the court shall appoint counsel to represent the defendant at the
5-43 proceeding.]
5-44 [Sec. 12. In this article, "cross-examination" has the same
5-45 meaning as in other legal proceedings in the state.]
5-46 [Sec. 13. The attorney representing the state shall
5-47 determine whether to use the procedure provided in Section 2 of
5-48 this article or the procedure provided in Section 5 of this
5-49 article.]
5-50 SECTION 2. This Act takes effect September 1, 1997.
5-51 SECTION 3. The importance of this legislation and the
5-52 crowded condition of the calendars in both houses create an
5-53 emergency and an imperative public necessity that the
5-54 constitutional rule requiring bills to be read on three several
5-55 days in each house be suspended, and this rule is hereby suspended.
5-56 * * * * *