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A BILL TO BE ENTITLED
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AN ACT
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relating to the disclosure of certain information regarding, and |
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the admissibility and use of testimony by, a witness for the state |
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in a criminal case. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Chapter 36, Code of Criminal Procedure, is |
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amended by adding Article 36.145 to read as follows: |
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Art. 36.145. STATEMENT REGARDING TESTIMONY OF IN-CUSTODY |
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WITNESS. (a) In this article, "in-custody witness" includes: |
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(1) a person detained by a peace officer or law |
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enforcement agency for the purposes of custodial interrogation; and |
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(2) a person confined in a correctional facility, as |
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defined by Section 1.07, Penal Code, after being arrested for, |
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charged with, or convicted of an offense. |
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(b) In any case in which the jury hears the testimony of an |
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in-custody witness, the judge shall include in the court's charge |
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under Article 36.14 a statement that the jury may subject the |
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testimony of an in-custody witness to higher scrutiny with regard |
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to reliability and that, in considering the reliability of the |
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witness, the jury may consider: |
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(1) whether the witness has received or has been |
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promised any inducement in exchange for testimony; |
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(2) whether the witness has ever recanted or otherwise |
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changed the witness's testimony during the investigation or |
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prosecution of the case; |
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(3) the general character of the witness; |
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(4) the nature of the relationship between the |
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defendant and the witness; and |
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(5) whether there is any evidence that tends to |
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independently corroborate the witness's testimony. |
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(c) The judge may not inform the jury that the court held an |
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admissibility hearing under Article 38.074 or that the court made |
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any pretrial determinations regarding the reliability of the |
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witness's testimony. |
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SECTION 2. Chapter 38, Code of Criminal Procedure, is |
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amended by adding Articles 38.061, 38.074, and 38.075 to read as |
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follows: |
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Art. 38.061. DISCLOSURE OF WITNESS INDUCEMENT. (a) Before |
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the trial of a criminal case, the state shall disclose in writing to |
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the defendant and to the defendant's counsel the following |
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information with respect to each witness for the state expected to |
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testify during the trial: |
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(1) whether the witness has received or has been |
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promised any inducement, including pay, immunity from or leniency |
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in prosecution, and personal advantage, in exchange for testimony; |
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(2) whether the witness has ever recanted or otherwise |
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changed the witness's testimony during the investigation or |
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prosecution of the case; |
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(3) identifying information regarding any other |
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criminal case in which the witness offered a statement against a |
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defendant but was not called to testify for the state, whether the |
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statement was admitted in the case, and whether the witness |
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received or was promised any inducement in exchange for the |
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statement; and |
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(4) the criminal history of the witness. |
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(b) The state shall supplement its written disclosure under |
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this section as necessary to include witnesses added to the witness |
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list of the state after the trial begins. |
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Art. 38.074. ADMISSIBILITY HEARING REGARDING TESTIMONY OF |
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IN-CUSTODY WITNESS. (a) In this article, "in-custody witness" has |
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the meaning assigned by Article 36.145. |
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(b) If the prosecuting attorney will offer testimony by an |
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in-custody witness in a criminal case, the judge shall hold a |
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hearing before the trial of the case, except as provided by |
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Subsection (e), to determine the reliability and admissibility of |
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the testimony at the guilt or innocence phase or the sentencing |
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phase of the trial or both. |
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(c) At the hearing, the prosecuting attorney must prove by a |
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preponderance of the evidence that the testimony of the in-custody |
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witness is reliable. |
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(d) The judge may consider the following factors in |
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determining the reliability of an in-custody witness: |
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(1) the alleged statements to which the witness will |
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testify and the date, time, place, and other circumstances |
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surrounding the statements; |
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(2) whether the witness has received or has been |
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promised any inducement, including pay, immunity from or leniency |
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in prosecution, and personal advantage, in exchange for the |
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testimony; |
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(3) the criminal history of the witness; |
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(4) whether the witness has ever recanted or otherwise |
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changed the witness's testimony during the investigation or |
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prosecution of the case; |
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(5) any other criminal case in which the witness |
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testified to alleged confessions or statements by others; and |
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(6) any other evidence that may attest to or diminish |
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the reliability of the witness, including the presence or absence |
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of any relationship between the defendant and the witness. |
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(e) If an in-custody witness is added to the witness list of |
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the state after the date the trial begins, the judge shall hold the |
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hearing required by this article as soon as practicable after the |
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date the witness is added. |
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Art. 38.075. USE OF IN-CUSTODY WITNESS TESTIMONY; POLICIES |
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AND PROCEDURES. (a) In this article, "in-custody witness" has the |
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meaning assigned by Article 36.145. |
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(b) A defendant may not be convicted of an offense on the |
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testimony of an in-custody witness unless the testimony is |
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corroborated by other evidence that tends to independently connect |
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the defendant with the offense committed. Corroboration that shows |
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only the commission of the offense is not sufficient for purposes of |
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this subsection. |
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(c) To ensure the reliability of testimony provided by an |
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in-custody witness, each district attorney, criminal district |
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attorney, or county attorney who represents the state in the |
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prosecution of criminal cases shall establish policies and |
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procedures governing the recording and use of that testimony. |
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SECTION 3. (a) The change in law made by this Act applies |
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only to a criminal case in which the voir dire examination begins on |
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or after the effective date of this Act. A criminal case in which |
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the voir dire examination begins before the effective date of this |
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Act is covered by the law in effect when the examination begins, and |
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the former law is continued in effect for that purpose. |
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(b) Each district attorney, criminal district attorney, or |
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county attorney who represents the state in the prosecution of |
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criminal cases shall establish the policies and procedures required |
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by Article 38.075, Code of Criminal Procedure, as added by this Act, |
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not later than January 1, 2010. |
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SECTION 4. This Act takes effect September 1, 2009. |