By: Shapiro, Zaffirini S.B. No. 24
Nelson, Van de Putte
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 the court determines that a child younger than 13 years of
1-10 age would be unavailable to testify in the presence of the
1-11 defendant about [the prosecution of] an offense defined by any of
1-12 the following sections of the Penal Code [if the offense is alleged
1-13 to have been committed against a child 12 years of age or younger
1-14 and if the trial court finds that the child is unavailable to
1-15 testify at the trial of the offense, and applies only to the
1-16 statements or testimony of that child]:
1-17 (1) Section 19.02 (Murder);
1-18 (2) Section 19.03 (Capital Murder);
1-19 (3) Section 19.04 (Manslaughter);
1-20 (4) Section 20.04 (Aggravated Kidnapping);
1-21 (5) Section 21.11 (Indecency with a Child);
1-22 (6) [(2)] Section 22.011 (Sexual Assault);
1-23 (7) [(3)] Section 22.02 (Aggravated Assault);
1-24 (8) [(4)] Section 22.021 (Aggravated Sexual Assault);
1-25 (9) [(5)] Section 22.04(e) (Injury to a Child, Elderly
2-1 Individual, or Disabled Individual);
2-2 (10) [(6)] Section 22.04(f) (Injury to a Child,
2-3 Elderly Individual, or Disabled Individual), if the conduct is
2-4 committed intentionally or knowingly;
2-5 (11) [(7)] Section 25.02 (Prohibited Sexual Conduct);
2-6 [or]
2-7 (12) Section 29.03 (Aggravated Robbery); or
2-8 (13) [(8)] Section 43.25 (Sexual Performance by a
2-9 Child).
2-10 SECTION 2. Subsection (c), Section 2, Article 38.071, Code
2-11 of Criminal Procedure, is amended to read as follows:
2-12 (c) A recording made under Subsection (a) of this section is
2-13 not admissible into evidence unless a recording made under
2-14 Subsection (b) is admitted at the same time if a recording under
2-15 Subsection (b) was requested prior to the time of the hearing or
2-16 proceeding [trial].
2-17 SECTION 3. Subsection (a), Section 3, Article 38.071, Code
2-18 of Criminal Procedure, is amended to read as follows:
2-19 (a) On its own motion or on the motion of the attorney
2-20 representing the state or the attorney representing the defendant,
2-21 the court may order that the testimony of the child be taken
2-22 [during the trial] in a room other than the courtroom and be
2-23 televised by closed circuit equipment in the courtroom to be viewed
2-24 by the court and the finder of fact. To the extent practicable,
2-25 only the judge, the court reporter, the attorneys for the defendant
2-26 and for the state, persons necessary to operate the equipment, and
3-1 any person whose presence would contribute to the welfare and
3-2 well-being of the child may be present in the room with the child
3-3 during his testimony. Only the attorneys and the judge may
3-4 question the child. To the extent practicable, the persons
3-5 necessary to operate the equipment shall be confined to an adjacent
3-6 room or behind a screen or mirror that permits them to see and hear
3-7 the child during his testimony, but does not permit the child to
3-8 see or hear them. The court shall permit the defendant to observe
3-9 and hear the testimony of the child and to communicate
3-10 contemporaneously with his attorney during periods of recess or by
3-11 audio contact, but the court shall attempt to ensure that the child
3-12 cannot hear or see the defendant. The court shall permit the
3-13 attorney for the defendant adequate opportunity to confer with the
3-14 defendant during cross-examination of the child. On application of
3-15 the attorney for the defendant, the court may recess the proceeding
3-16 before or during cross-examination of the child for a reasonable
3-17 time to allow the attorney for the defendant to confer with
3-18 defendant.
3-19 SECTION 4. Subsections (a) and (b), Section 4, Article
3-20 38.071, Code of Criminal Procedure, are amended to read as follows:
3-21 (a) After an indictment has been returned or a complaint
3-22 filed [charging the defendant with an offense to which this article
3-23 applies], on its own motion or on the motion of the attorney
3-24 representing the state or the attorney representing the defendant,
3-25 the court may order that the testimony of the child be taken
3-26 outside the courtroom and be recorded for showing in the courtroom
4-1 before the court and the finder of fact. To the extent
4-2 practicable, only those persons permitted to be present at the
4-3 taking of testimony under Section 3 of this article may be present
4-4 during the taking of the child's testimony, and the persons
4-5 operating the equipment shall be confined from the child's sight
4-6 and hearing as provided by Section 3. The court shall permit the
4-7 defendant to observe and hear the testimony of the child and to
4-8 communicate contemporaneously with his attorney during periods of
4-9 recess or by audio contact but shall attempt to ensure that the
4-10 child cannot hear or see the defendant.
4-11 (b) The court may set any other conditions and limitations
4-12 on the taking of the testimony that it finds just and appropriate,
4-13 taking into consideration the interests of the child, the rights of
4-14 the defendant, and any other relevant factors. The court shall
4-15 also ensure that:
4-16 (1) the recording is both visual and aural and is
4-17 recorded on film or videotape or by other electronic means;
4-18 (2) the recording equipment was capable of making an
4-19 accurate recording, the operator was competent, the quality of the
4-20 recording is sufficient to allow the court and the finder of fact
4-21 to assess the demeanor of the child and the interviewer, and the
4-22 recording is accurate and is not altered;
4-23 (3) each voice on the recording is identified;
4-24 (4) the defendant, the attorneys for each party, and
4-25 the expert witnesses for each party are afforded an opportunity to
4-26 view the recording before it is shown in the courtroom;
5-1 (5) before giving his testimony, the child was placed
5-2 under oath or was otherwise admonished in a manner appropriate to
5-3 the child's age and maturity to testify truthfully;
5-4 (6) the court finds from the recording or through an
5-5 in camera examination of the child that the child was competent to
5-6 testify at the time the recording was made; and
5-7 (7) only one continuous recording of the child was
5-8 made or the necessity for pauses in the recordings or for multiple
5-9 recordings is established at the hearing or proceeding [trial].
5-10 SECTION 5. Subsections (a) and (b), Section 5, Article
5-11 38.071, Code of Criminal Procedure, are amended to read as follows:
5-12 (a) On the motion of the attorney representing the state or
5-13 the attorney representing the defendant and on a finding by the
5-14 [trial] court that the following requirements have been
5-15 substantially satisfied, the recording of an oral statement of the
5-16 child made before a complaint has been filed or an indictment
5-17 returned [charging any person with an offense to which this article
5-18 applies] is admissible into evidence if:
5-19 (1) no attorney or peace officer was present when the
5-20 statement was made;
5-21 (2) the recording is both visual and aural and is
5-22 recorded on film or videotape or by other electronic means;
5-23 (3) the recording equipment was capable of making an
5-24 accurate recording, the operator of the equipment was competent,
5-25 the quality of the recording is sufficient to allow the court and
5-26 the finder of fact to assess the demeanor of the child and the
6-1 interviewer, and the recording is accurate and has not been
6-2 altered;
6-3 (4) the statement was not made in response to
6-4 questioning calculated to lead the child to make a particular
6-5 statement;
6-6 (5) every voice on the recording is identified;
6-7 (6) the person conducting the interview of the child
6-8 in the recording is expert in the handling, treatment, and
6-9 investigation of child abuse cases, present at the hearing or
6-10 proceeding, called by the state [as part of the state's case in
6-11 chief to testify at trial], and subject to cross-examination;
6-12 (7) immediately after a complaint was filed or an
6-13 indictment returned [charging the defendant with an offense to
6-14 which this article applies], the attorney representing the state
6-15 notified the court, the defendant, and the attorney representing
6-16 the defendant of the existence of the recording [and that the
6-17 recording may be used at the trial of the offense];
6-18 (8) the defendant, the attorney for the defendant, and
6-19 the expert witnesses for the defendant were afforded an opportunity
6-20 to view the recording before it is offered into evidence and, if a
6-21 proceeding was requested as provided by Subsection (b) of this
6-22 section, in a proceeding conducted before a district court judge
6-23 but outside the presence of the jury were afforded an opportunity
6-24 to cross-examine the child as provided by Subsection (b) of this
6-25 section from any time immediately following the filing of the
6-26 complaint or the returning of an indictment charging the defendant
7-1 [with an offense to which this article applies] until the date the
7-2 hearing or proceeding [trial] begins;
7-3 (9) the recording of the cross-examination, if there
7-4 is one, is admissible under Subsection (b) of this section;
7-5 (10) before giving his testimony, the child was placed
7-6 under oath or was otherwise admonished in a manner appropriate to
7-7 the child's age and maturity to testify truthfully;
7-8 (11) the court finds from the recording or through an
7-9 in camera examination of the child that the child was competent to
7-10 testify at the time that the recording was made; and
7-11 (12) only one continuous recording of the child was
7-12 made or the necessity for pauses in the recordings or for multiple
7-13 recordings has been established at the hearing or proceeding
7-14 [trial].
7-15 (b) On the motion of the attorney representing the
7-16 defendant, a district court may order that the cross-examination of
7-17 the child be taken and be recorded before the judge of that court
7-18 at any time until a recording made in accordance with Subsection
7-19 (a) of this section has been introduced into evidence at the
7-20 hearing or proceeding [trial]. On a finding by the [trial] court
7-21 that the following requirements were satisfied, the recording of
7-22 the cross-examination of the child is admissible into evidence and
7-23 shall be viewed by the finder of fact only after the finder of fact
7-24 has viewed the recording authorized by Subsection (a) of this
7-25 section if:
7-26 (1) the recording is both visual and aural and is
8-1 recorded on film or videotape or by other electronic means;
8-2 (2) the recording equipment was capable of making an
8-3 accurate recording, the operator of the equipment was competent,
8-4 the quality of the recording is sufficient to allow the court and
8-5 the finder of fact to assess the demeanor of the child and the
8-6 attorney representing the defendant, and the recording is accurate
8-7 and has not been altered;
8-8 (3) every voice on the recording is identified;
8-9 (4) the defendant, the attorney representing the
8-10 defendant, the attorney representing the state, and the expert
8-11 witnesses for the defendant and the state were afforded an
8-12 opportunity to view the recording before the hearing or proceeding
8-13 [trial] began;
8-14 (5) the child was placed under oath before the
8-15 cross-examination began or was otherwise admonished in a manner
8-16 appropriate to the child's age and maturity to testify truthfully;
8-17 and
8-18 (6) only one continuous recording of the child was
8-19 made or the necessity for pauses in the recordings or for multiple
8-20 recordings was established at the hearing or proceeding [trial].
8-21 SECTION 6. Subsection (a), Section 8, Article 38.071, Code
8-22 of Criminal Procedure, is amended to read as follows:
8-23 (a) In making a determination of unavailability under this
8-24 article, the court shall consider relevant factors including the
8-25 relationship of the defendant to the child, the character and
8-26 duration of the alleged offense, the age, maturity, and emotional
9-1 stability of the child, and the time elapsed since the alleged
9-2 offense, and whether the child is more likely than not to be
9-3 unavailable to testify because:
9-4 (1) of emotional or physical causes, including the
9-5 confrontation with the defendant [or the ordinary involvement as
9-6 complainant in the courtroom trial]; or
9-7 (2) the child would suffer undue psychological or
9-8 physical harm through his involvement at the hearing or proceeding
9-9 [trial].
9-10 SECTION 7. Section 9, Article 38.071, Code of Criminal
9-11 Procedure, is amended to read as follows:
9-12 Sec. 9. If the court finds the testimony taken under Section
9-13 2 or 5 of this article is admissible into evidence or if the court
9-14 orders the testimony to be taken under Section 3 or 4 of this
9-15 article and if the identity of the perpetrator is a contested
9-16 issue, the child additionally must make an in-person identification
9-17 of the defendant either at or before the hearing or proceeding
9-18 [trial].
9-19 SECTION 8. Section 10, Article 38.071, Code of Criminal
9-20 Procedure, is amended to read as follows:
9-21 Sec. 10. In ordering a child to testify under this article,
9-22 the court shall take all reasonable steps necessary and available
9-23 to minimize undue psychological trauma to the child and to minimize
9-24 the emotional and physical stress to the child caused by relevant
9-25 factors, including the confrontation with the defendant and the
9-26 ordinary participation of the witness [complainant] in the
10-1 courtroom.
10-2 SECTION 9. This Act takes effect September 1, 2001.