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A BILL TO BE ENTITLED
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AN ACT
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relating to the impact of the presence of certain peace officers on |
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the admissibility of certain statements made by children. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Section 5(a), Article 38.071, Code of Criminal |
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Procedure, is amended to read as follows: |
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(a) On the motion of the attorney representing the state or |
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the attorney representing the defendant and on a finding by the |
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court that the following requirements have been substantially |
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satisfied, the recording of an oral statement of the child made |
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before a complaint has been filed or an indictment returned is |
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admissible into evidence if: |
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(1) no attorney or active, appointed peace officer was |
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present when the statement was made; |
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(2) the recording is both visual and aural and is |
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recorded on film or videotape or by other electronic means; |
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(3) the recording equipment was capable of making an |
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accurate recording, the operator of the equipment was competent, |
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the quality of the recording is sufficient to allow the court and |
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the finder of fact to assess the demeanor of the child and the |
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interviewer, and the recording is accurate and has not been |
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altered; |
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(4) the statement was not made in response to |
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questioning calculated to lead the child to make a particular |
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statement; |
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(5) every voice on the recording is identified; |
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(6) the person conducting the interview of the child |
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in the recording is expert in the handling, treatment, and |
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investigation of child abuse cases, present at the hearing or |
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proceeding, called by the state, and subject to cross-examination; |
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(7) immediately after a complaint was filed or an |
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indictment returned, the attorney representing the state notified |
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the court, the defendant, and the attorney representing the |
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defendant of the existence of the recording; |
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(8) the defendant, the attorney for the defendant, and |
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the expert witnesses for the defendant were afforded an opportunity |
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to view the recording before it is offered into evidence and, if a |
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proceeding was requested as provided by Subsection (b) [of this
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section], in a proceeding conducted before a district court judge |
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but outside the presence of the jury were afforded an opportunity to |
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cross-examine the child as provided by Subsection (b) [of this
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section] from any time immediately following the filing of the |
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complaint or the returning of an indictment charging the defendant |
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until the date the hearing or proceeding begins; |
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(9) the recording of the cross-examination, if there |
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is one, is admissible under Subsection (b) [of this section]; |
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(10) before giving his testimony, the child was placed |
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under oath or was otherwise admonished in a manner appropriate to |
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the child's age and maturity to testify truthfully; |
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(11) the court finds from the recording or through an |
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in camera examination of the child that the child was competent to |
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testify at the time that the recording was made; and |
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(12) only one continuous recording of the child was |
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made or the necessity for pauses in the recordings or for multiple |
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recordings has been established at the hearing or proceeding. |
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SECTION 2. This Act applies only to the admissibility of a |
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recorded oral statement at a hearing or proceeding that commences |
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on or after the effective date of this Act, regardless of whether |
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the statement was made before, on, or after that date. |
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SECTION 3. This Act takes effect September 1, 2009. |