By: Wise H.B. No. 83
A BILL TO BE ENTITLED
AN ACT
relating to the manner in which the videotaping of or the
broadcasting by closed circuit television of the testimony of a
child who is the victim of or witness to an alleged offense is
conducted.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 1, Article 38.071, Code of Criminal
Procedure, is amended to read as follows:
Sec. 1. This article applies only to a hearing or proceeding
in the prosecution of an offense defined by any of the following
sections of the Penal Code if the offense is alleged to have been
committed against a child 14 [12] years of age or younger and if the
[trial] court finds that the child is unavailable to testify in the
presence of the defendant [at the trial of the offense, and applies
only to the statements or testimony of that child]:
(1) Section 21.11 (Indecency with a Child);
(2) Section 22.011 (Sexual Assault);
(3) Section 22.02 (Aggravated Assault);
(4) Section 22.021 (Aggravated Sexual Assault);
(5) Section 22.04(e) (Injury to a Child, Elderly
Individual, or Disabled Individual);
(6) Section 22.04(f) (Injury to a Child, Elderly
Individual, or Disabled Individual), if the conduct is committed
intentionally or knowingly;
(7) Section 25.02 (Prohibited Sexual Conduct); or
(8) Section 43.25 (Sexual Performance by a Child).
SECTION 2. Section 2(c), Article 38.071, Code of Criminal
Procedure, is amended to read as follows:
(c) A recording made under Subsection (a) of this section is
not admissible into evidence unless a recording made under
Subsection (b) is admitted at the same time if a recording under
Subsection (b) was requested prior to the time of the hearing or
proceeding [trial].
SECTION 3. Section 3(a), Article 38.071, Code of Criminal
Procedure, is amended to read as follows:
(a) On its own motion or on the motion of the attorney
representing the state or the attorney representing the defendant,
the court may order that the testimony of the child be taken [during
the trial] in a room other than the courtroom and be televised by
closed circuit equipment in the courtroom to be viewed by the court
and the finder of fact. To the extent practicable, only the judge,
the court reporter, the attorneys for the defendant and for the
state, persons necessary to operate the equipment, and any person
whose presence would contribute to the welfare and well-being of
the child may be present in the room with the child during his
testimony. Only the attorneys and the judge may question the child.
To the extent practicable, the persons necessary to operate the
equipment shall be confined to an adjacent room or behind a screen
or mirror that permits them to see and hear the child during his
testimony, but does not permit the child to see or hear them. The
court shall permit the defendant to observe and hear the testimony
of the child and to communicate contemporaneously with his attorney
during periods of recess or by audio contact, but the court shall
attempt to ensure that the child cannot hear or see the defendant.
The court shall permit the attorney for the defendant adequate
opportunity to confer with the defendant during cross-examination
of the child. On application of the attorney for the defendant, the
court may recess the proceeding before or during cross-examination
of the child for a reasonable time to allow the attorney for the
defendant to confer with the defendant.
SECTION 4. Section 4(b), Article 38.071, Code of Criminal
Procedure, is amended to read as follows:
(b) The court may set any other conditions and limitations
on the taking of the testimony that it finds just and appropriate,
taking into consideration the interests of the child, the rights of
the defendant, and any other relevant factors. The court shall also
ensure that:
(1) the recording is both visual and aural and is
recorded on film or videotape or by other electronic means;
(2) the recording equipment was capable of making an
accurate recording, the operator was competent, the quality of the
recording is sufficient to allow the court and the finder of fact to
assess the demeanor of the child and the interviewer, and the
recording is accurate and is not altered;
(3) each voice on the recording is identified;
(4) the defendant, the attorneys for each party, and
the expert witnesses for each party are afforded an opportunity to
view the recording before it is shown in the courtroom;
(5) before giving his testimony, the child was placed
under oath or was otherwise admonished in a manner appropriate to
the child's age and maturity to testify truthfully;
(6) the court finds from the recording or through an in
camera examination of the child that the child was competent to
testify at the time the recording was made; and
(7) only one continuous recording of the child was
made or the necessity for pauses in the recordings or for multiple
recordings is established at the hearing or proceeding [trial].
SECTION 5. Sections 5(a) and (b), Article 38.071, Code of
Criminal Procedure, are amended to read as follows:
(a) On the motion of the attorney representing the state or
the attorney representing the defendant and on a finding by the
[trial] court that the following requirements have been
substantially satisfied, the recording of an oral statement of the
child made before a complaint has been filed or an indictment
returned charging any person with an offense to which this article
applies is admissible into evidence if:
(1) no attorney or peace officer was present when the
statement was made;
(2) the recording is both visual and aural and is
recorded on film or videotape or by other electronic means;
(3) the recording equipment was capable of making an
accurate recording, the operator of the equipment was competent,
the quality of the recording is sufficient to allow the court and
the finder of fact to assess the demeanor of the child and the
interviewer, and the recording is accurate and has not been
altered;
(4) the statement was not made in response to
questioning calculated to lead the child to make a particular
statement;
(5) every voice on the recording is identified;
(6) the person conducting the interview of the child
in the recording is expert in the handling, treatment, and
investigation of child abuse cases, present at the hearing or
proceeding, called by the state [as part of the state's case in
chief to testify at trial], and subject to cross-examination;
(7) immediately after a complaint was filed or an
indictment returned charging the defendant with an offense to which
this article applies, the attorney representing the state notified
the court, the defendant, and the attorney representing the
defendant of the existence of the recording [and that the recording
may be used at the trial of the offense];
(8) the defendant, the attorney for the defendant, and
the expert witnesses for the defendant were afforded an opportunity
to view the recording before it is offered into evidence and, if a
proceeding was requested as provided by Subsection (b) of this
section, in a proceeding conducted before a district court judge
but outside the presence of the jury were afforded an opportunity to
cross-examine the child as provided by Subsection (b) of this
section from any time immediately following the filing of the
complaint or the returning of an indictment charging the defendant
with an offense to which this article applies until the date the
hearing or proceeding [trial] begins;
(9) the recording of the cross-examination, if there
is one, is admissible under Subsection (b) of this section;
(10) before giving his testimony, the child was placed
under oath or was otherwise admonished in a manner appropriate to
the child's age and maturity to testify truthfully;
(11) the court finds from the recording or through an
in camera examination of the child that the child was competent to
testify at the time that the recording was made; and
(12) only one continuous recording of the child was
made or the necessity for pauses in the recordings or for multiple
recordings has been established at the hearing or proceeding
[trial].
(b) On the motion of the attorney representing the
defendant, a district court may order that the cross-examination of
the child be taken and be recorded before the judge of that court at
any time until a recording made in accordance with Subsection (a) of
this section has been introduced into evidence at the hearing or
proceeding [trial]. On a finding by the [trial] court that the
following requirements were satisfied, the recording of the
cross-examination of the child is admissible into evidence and
shall be viewed by the finder of fact only after the finder of fact
has viewed the recording authorized by Subsection (a) of this
section if:
(1) the recording is both visual and aural and is
recorded on film or videotape or by other electronic means;
(2) the recording equipment was capable of making an
accurate recording, the operator of the equipment was competent,
the quality of the recording is sufficient to allow the court and
the finder of fact to assess the demeanor of the child and the
attorney representing the defendant, and the recording is accurate
and has not been altered;
(3) every voice on the recording is identified;
(4) the defendant, the attorney representing the
defendant, the attorney representing the state, and the expert
witnesses for the defendant and the state were afforded an
opportunity to view the recording before the hearing or proceeding
[trial] began;
(5) the child was placed under oath before the
cross-examination began or was otherwise admonished in a manner
appropriate to the child's age and maturity to testify truthfully;
and
(6) only one continuous recording of the child was
made or the necessity for pauses in the recordings or for multiple
recordings was established at the hearing or proceeding [trial].
SECTION 6. Section 8(a), Article 38.071, Code of Criminal
Procedure, is amended to read as follows:
(a) In making a determination of unavailability under this
article, the court shall consider relevant factors including the
relationship of the defendant to the child, the character and
duration of the alleged offense, the age, maturity, and emotional
stability of the child, and the time elapsed since the alleged
offense, and whether the child is more likely than not to be
unavailable to testify because:
(1) of emotional or physical causes, including the
confrontation with the defendant [or the ordinary involvement as
complainant in the courtroom trial]; or
(2) the child would suffer undue psychological or
physical harm through his involvement at the hearing or proceeding
[trial].
SECTION 7. Section 9, Article 38.071, Code of Criminal
Procedure, is amended to read as follows:
Sec. 9. If the court finds the testimony taken under
Section 2 or 5 of this article is admissible into evidence or if the
court orders the testimony to be taken under Section 3 or 4 of this
article and if the identity of the perpetrator is a contested issue,
the child additionally must make an in-person identification of the
defendant either at or before the hearing or proceeding [trial].
SECTION 8. Section 10, Article 38.071, Code of Criminal
Procedure, is amended to read as follows:
Sec. 10. In ordering a child to testify under this article,
the court shall take all reasonable steps necessary and available
to minimize undue psychological trauma to the child and to minimize
the emotional and physical stress to the child caused by relevant
factors, including the confrontation with the defendant and the
ordinary participation of the witness [complainant] in the
courtroom.
SECTION 9. This Act takes effect September 1, 2003.