1-1 By: Shapiro S.B. No. 24
1-2 (In the Senate - Filed November 13, 2000; January 10, 2001,
1-3 read first time and referred to Committee on Criminal Justice;
1-4 February 5, 2001, reported adversely, with favorable Committee
1-5 Substitute by the following vote: Yeas 4, Nays 1;
1-6 February 5, 2001, sent to printer.)
1-7 COMMITTEE SUBSTITUTE FOR S.B. No. 24 By: Moncrief
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. Section 1, Article 38.071, Code of Criminal
1-15 Procedure, is amended to read as follows:
1-16 Sec. 1. This article applies only to a hearing or proceeding
1-17 in which the court determines that a child younger than 13 years of
1-18 age would be unavailable to testify in the presence of the
1-19 defendant about [the prosecution of] an offense defined by any of
1-20 the following sections of the Penal Code [if the offense is alleged
1-21 to have been committed against a child 12 years of age or younger
1-22 and if the trial court finds that the child is unavailable to
1-23 testify at the trial of the offense, and applies only to the
1-24 statements or testimony of that child]:
1-25 (1) Section 19.02 (Murder);
1-26 (2) Section 19.03 (Capital Murder);
1-27 (3) Section 19.04 (Manslaughter);
1-28 (4) Section 20.04 (Aggravated Kidnapping);
1-29 (5) Section 21.11 (Indecency with a Child);
1-30 (6) [(2)] Section 22.011 (Sexual Assault);
1-31 (7) [(3)] Section 22.02 (Aggravated Assault);
1-32 (8) [(4)] Section 22.021 (Aggravated Sexual Assault);
1-33 (9) [(5)] Section 22.04(e) (Injury to a Child, Elderly
1-34 Individual, or Disabled Individual);
1-35 (10) [(6)] Section 22.04(f) (Injury to a Child,
1-36 Elderly Individual, or Disabled Individual), if the conduct is
1-37 committed intentionally or knowingly;
1-38 (11) [(7)] Section 25.02 (Prohibited Sexual Conduct);
1-39 [or]
1-40 (12) Section 29.03 (Aggravated Robbery); or
1-41 (13) [(8)] Section 43.25 (Sexual Performance by a
1-42 Child).
1-43 SECTION 2. Subsection (c), Section 2, Article 38.071, Code
1-44 of Criminal Procedure, is amended to read as follows:
1-45 (c) A recording made under Subsection (a) of this section is
1-46 not admissible into evidence unless a recording made under
1-47 Subsection (b) is admitted at the same time if a recording under
1-48 Subsection (b) was requested prior to the time of the hearing or
1-49 proceeding [trial].
1-50 SECTION 3. Subsection (a), Section 3, Article 38.071, Code
1-51 of Criminal Procedure, is amended to read as follows:
1-52 (a) On its own motion or on the motion of the attorney
1-53 representing the state or the attorney representing the defendant,
1-54 the court may order that the testimony of the child be taken
1-55 [during the trial] in a room other than the courtroom and be
1-56 televised by closed circuit equipment in the courtroom to be viewed
1-57 by the court and the finder of fact. To the extent practicable,
1-58 only the judge, the court reporter, the attorneys for the defendant
1-59 and for the state, persons necessary to operate the equipment, and
1-60 any person whose presence would contribute to the welfare and
1-61 well-being of the child may be present in the room with the child
1-62 during his testimony. Only the attorneys and the judge may
1-63 question the child. To the extent practicable, the persons
1-64 necessary to operate the equipment shall be confined to an adjacent
2-1 room or behind a screen or mirror that permits them to see and hear
2-2 the child during his testimony, but does not permit the child to
2-3 see or hear them. The court shall permit the defendant to observe
2-4 and hear the testimony of the child and to communicate
2-5 contemporaneously with his attorney during periods of recess or by
2-6 audio contact, but the court shall attempt to ensure that the child
2-7 cannot hear or see the defendant. The court shall permit the
2-8 attorney for the defendant adequate opportunity to confer with the
2-9 defendant during cross-examination of the child. On application of
2-10 the attorney for the defendant, the court may recess the proceeding
2-11 before or during cross-examination of the child for a reasonable
2-12 time to allow the attorney for the defendant to confer with
2-13 defendant.
2-14 SECTION 4. Subsections (a) and (b), Section 4, Article
2-15 38.071, Code of Criminal Procedure, are amended to read as follows:
2-16 (a) After an indictment has been returned or a complaint
2-17 filed [charging the defendant with an offense to which this article
2-18 applies], on its own motion or on the motion of the attorney
2-19 representing the state or the attorney representing the defendant,
2-20 the court may order that the testimony of the child be taken
2-21 outside the courtroom and be recorded for showing in the courtroom
2-22 before the court and the finder of fact. To the extent
2-23 practicable, only those persons permitted to be present at the
2-24 taking of testimony under Section 3 of this article may be present
2-25 during the taking of the child's testimony, and the persons
2-26 operating the equipment shall be confined from the child's sight
2-27 and hearing as provided by Section 3. The court shall permit the
2-28 defendant to observe and hear the testimony of the child and to
2-29 communicate contemporaneously with his attorney during periods of
2-30 recess or by audio contact but shall attempt to ensure that the
2-31 child cannot hear or see the defendant.
2-32 (b) The court may set any other conditions and limitations
2-33 on the taking of the testimony that it finds just and appropriate,
2-34 taking into consideration the interests of the child, the rights of
2-35 the defendant, and any other relevant factors. The court shall
2-36 also ensure that:
2-37 (1) the recording is both visual and aural and is
2-38 recorded on film or videotape or by other electronic means;
2-39 (2) the recording equipment was capable of making an
2-40 accurate recording, the operator was competent, the quality of the
2-41 recording is sufficient to allow the court and the finder of fact
2-42 to assess the demeanor of the child and the interviewer, and the
2-43 recording is accurate and is not altered;
2-44 (3) each voice on the recording is identified;
2-45 (4) the defendant, the attorneys for each party, and
2-46 the expert witnesses for each party are afforded an opportunity to
2-47 view the recording before it is shown in the courtroom;
2-48 (5) before giving his testimony, the child was placed
2-49 under oath or was otherwise admonished in a manner appropriate to
2-50 the child's age and maturity to testify truthfully;
2-51 (6) the court finds from the recording or through an
2-52 in camera examination of the child that the child was competent to
2-53 testify at the time the recording was made; and
2-54 (7) only one continuous recording of the child was
2-55 made or the necessity for pauses in the recordings or for multiple
2-56 recordings is established at the hearing or proceeding [trial].
2-57 SECTION 5. Subsections (a) and (b), Section 5, Article
2-58 38.071, Code of Criminal Procedure, are amended to read as follows:
2-59 (a) On the motion of the attorney representing the state or
2-60 the attorney representing the defendant and on a finding by the
2-61 [trial] court that the following requirements have been
2-62 substantially satisfied, the recording of an oral statement of the
2-63 child made before a complaint has been filed or an indictment
2-64 returned [charging any person with an offense to which this article
2-65 applies] is admissible into evidence if:
2-66 (1) no attorney or peace officer was present when the
2-67 statement was made;
2-68 (2) the recording is both visual and aural and is
2-69 recorded on film or videotape or by other electronic means;
3-1 (3) the recording equipment was capable of making an
3-2 accurate recording, the operator of the equipment was competent,
3-3 the quality of the recording is sufficient to allow the court and
3-4 the finder of fact to assess the demeanor of the child and the
3-5 interviewer, and the recording is accurate and has not been
3-6 altered;
3-7 (4) the statement was not made in response to
3-8 questioning calculated to lead the child to make a particular
3-9 statement;
3-10 (5) every voice on the recording is identified;
3-11 (6) the person conducting the interview of the child
3-12 in the recording is expert in the handling, treatment, and
3-13 investigation of child abuse cases, present at the hearing or
3-14 proceeding, called by the state [as part of the state's case in
3-15 chief to testify at trial], and subject to cross-examination;
3-16 (7) immediately after a complaint was filed or an
3-17 indictment returned [charging the defendant with an offense to
3-18 which this article applies], the attorney representing the state
3-19 notified the court, the defendant, and the attorney representing
3-20 the defendant of the existence of the recording [and that the
3-21 recording may be used at the trial of the offense];
3-22 (8) the defendant, the attorney for the defendant, and
3-23 the expert witnesses for the defendant were afforded an opportunity
3-24 to view the recording before it is offered into evidence and, if a
3-25 proceeding was requested as provided by Subsection (b) of this
3-26 section, in a proceeding conducted before a district court judge
3-27 but outside the presence of the jury were afforded an opportunity
3-28 to cross-examine the child as provided by Subsection (b) of this
3-29 section from any time immediately following the filing of the
3-30 complaint or the returning of an indictment charging the defendant
3-31 [with an offense to which this article applies] until the date the
3-32 hearing or proceeding [trial] begins;
3-33 (9) the recording of the cross-examination, if there
3-34 is one, is admissible under Subsection (b) of this section;
3-35 (10) before giving his testimony, the child was placed
3-36 under oath or was otherwise admonished in a manner appropriate to
3-37 the child's age and maturity to testify truthfully;
3-38 (11) the court finds from the recording or through an
3-39 in camera examination of the child that the child was competent to
3-40 testify at the time that the recording was made; and
3-41 (12) only one continuous recording of the child was
3-42 made or the necessity for pauses in the recordings or for multiple
3-43 recordings has been established at the hearing or proceeding
3-44 [trial].
3-45 (b) On the motion of the attorney representing the
3-46 defendant, a district court may order that the cross-examination of
3-47 the child be taken and be recorded before the judge of that court
3-48 at any time until a recording made in accordance with Subsection
3-49 (a) of this section has been introduced into evidence at the
3-50 hearing or proceeding [trial]. On a finding by the [trial] court
3-51 that the following requirements were satisfied, the recording of
3-52 the cross-examination of the child is admissible into evidence and
3-53 shall be viewed by the finder of fact only after the finder of fact
3-54 has viewed the recording authorized by Subsection (a) of this
3-55 section if:
3-56 (1) the recording is both visual and aural and is
3-57 recorded on film or videotape or by other electronic means;
3-58 (2) the recording equipment was capable of making an
3-59 accurate recording, the operator of the equipment was competent,
3-60 the quality of the recording is sufficient to allow the court and
3-61 the finder of fact to assess the demeanor of the child and the
3-62 attorney representing the defendant, and the recording is accurate
3-63 and has not been altered;
3-64 (3) every voice on the recording is identified;
3-65 (4) the defendant, the attorney representing the
3-66 defendant, the attorney representing the state, and the expert
3-67 witnesses for the defendant and the state were afforded an
3-68 opportunity to view the recording before the hearing or proceeding
3-69 [trial] began;
4-1 (5) the child was placed under oath before the
4-2 cross-examination began or was otherwise admonished in a manner
4-3 appropriate to the child's age and maturity to testify truthfully;
4-4 and
4-5 (6) only one continuous recording of the child was
4-6 made or the necessity for pauses in the recordings or for multiple
4-7 recordings was established at the hearing or proceeding [trial].
4-8 SECTION 6. Subsection (a), Section 8, Article 38.071, Code
4-9 of Criminal Procedure, is amended to read as follows:
4-10 (a) In making a determination of unavailability under this
4-11 article, the court shall consider relevant factors including the
4-12 relationship of the defendant to the child, the character and
4-13 duration of the alleged offense, the age, maturity, and emotional
4-14 stability of the child, and the time elapsed since the alleged
4-15 offense, and whether the child is more likely than not to be
4-16 unavailable to testify because:
4-17 (1) of emotional or physical causes, including the
4-18 confrontation with the defendant [or the ordinary involvement as
4-19 complainant in the courtroom trial]; or
4-20 (2) the child would suffer undue psychological or
4-21 physical harm through his involvement at the hearing or proceeding
4-22 [trial].
4-23 SECTION 7. Section 9, Article 38.071, Code of Criminal
4-24 Procedure, is amended to read as follows:
4-25 Sec. 9. If the court finds the testimony taken under Section
4-26 2 or 5 of this article is admissible into evidence or if the court
4-27 orders the testimony to be taken under Section 3 or 4 of this
4-28 article and if the identity of the perpetrator is a contested
4-29 issue, the child additionally must make an in-person identification
4-30 of the defendant either at or before the hearing or proceeding
4-31 [trial].
4-32 SECTION 8. Section 10, Article 38.071, Code of Criminal
4-33 Procedure, is amended to read as follows:
4-34 Sec. 10. In ordering a child to testify under this article,
4-35 the court shall take all reasonable steps necessary and available
4-36 to minimize undue psychological trauma to the child and to minimize
4-37 the emotional and physical stress to the child caused by relevant
4-38 factors, including the confrontation with the defendant and the
4-39 ordinary participation of the witness [complainant] in the
4-40 courtroom.
4-41 SECTION 9. This Act takes effect September 1, 2001.
4-42 * * * * *