| 1 | 1 | | By: Brown of Kaufman H.B. No. 2076 |
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| 2 | 2 | | |
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| 3 | 3 | | |
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| 4 | 4 | | A BILL TO BE ENTITLED |
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| 5 | 5 | | AN ACT |
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| 6 | 6 | | relating to the impact of the presence of certain peace officers on |
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| 7 | 7 | | the admissibility of certain statements made by children. |
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| 8 | 8 | | BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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| 9 | 9 | | SECTION 1. Section 5(a), Article 38.071, Code of Criminal |
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| 10 | 10 | | Procedure, is amended to read as follows: |
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| 11 | 11 | | (a) On the motion of the attorney representing the state or |
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| 12 | 12 | | the attorney representing the defendant and on a finding by the |
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| 13 | 13 | | court that the following requirements have been substantially |
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| 14 | 14 | | satisfied, the recording of an oral statement of the child made |
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| 15 | 15 | | before a complaint has been filed or an indictment returned is |
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| 16 | 16 | | admissible into evidence if: |
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| 17 | 17 | | (1) no attorney or active, appointed peace officer was |
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| 18 | 18 | | present when the statement was made; |
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| 19 | 19 | | (2) the recording is both visual and aural and is |
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| 20 | 20 | | recorded on film or videotape or by other electronic means; |
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| 21 | 21 | | (3) the recording equipment was capable of making an |
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| 22 | 22 | | accurate recording, the operator of the equipment was competent, |
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| 23 | 23 | | the quality of the recording is sufficient to allow the court and |
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| 24 | 24 | | the finder of fact to assess the demeanor of the child and the |
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| 25 | 25 | | interviewer, and the recording is accurate and has not been |
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| 26 | 26 | | altered; |
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| 27 | 27 | | (4) the statement was not made in response to |
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| 28 | 28 | | questioning calculated to lead the child to make a particular |
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| 29 | 29 | | statement; |
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| 30 | 30 | | (5) every voice on the recording is identified; |
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| 31 | 31 | | (6) the person conducting the interview of the child |
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| 32 | 32 | | in the recording is expert in the handling, treatment, and |
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| 33 | 33 | | investigation of child abuse cases, present at the hearing or |
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| 34 | 34 | | proceeding, called by the state, and subject to cross-examination; |
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| 35 | 35 | | (7) immediately after a complaint was filed or an |
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| 36 | 36 | | indictment returned, the attorney representing the state notified |
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| 37 | 37 | | the court, the defendant, and the attorney representing the |
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| 38 | 38 | | defendant of the existence of the recording; |
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| 39 | 39 | | (8) the defendant, the attorney for the defendant, and |
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| 40 | 40 | | the expert witnesses for the defendant were afforded an opportunity |
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| 41 | 41 | | to view the recording before it is offered into evidence and, if a |
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| 42 | 42 | | proceeding was requested as provided by Subsection (b) [of this |
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| 43 | 43 | | section], in a proceeding conducted before a district court judge |
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| 44 | 44 | | but outside the presence of the jury were afforded an opportunity to |
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| 45 | 45 | | cross-examine the child as provided by Subsection (b) [of this |
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| 46 | 46 | | section] from any time immediately following the filing of the |
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| 47 | 47 | | complaint or the returning of an indictment charging the defendant |
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| 48 | 48 | | until the date the hearing or proceeding begins; |
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| 49 | 49 | | (9) the recording of the cross-examination, if there |
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| 50 | 50 | | is one, is admissible under Subsection (b) [of this section]; |
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| 51 | 51 | | (10) before giving his testimony, the child was placed |
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| 52 | 52 | | under oath or was otherwise admonished in a manner appropriate to |
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| 53 | 53 | | the child's age and maturity to testify truthfully; |
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| 54 | 54 | | (11) the court finds from the recording or through an |
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| 55 | 55 | | in camera examination of the child that the child was competent to |
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| 56 | 56 | | testify at the time that the recording was made; and |
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| 57 | 57 | | (12) only one continuous recording of the child was |
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| 58 | 58 | | made or the necessity for pauses in the recordings or for multiple |
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| 59 | 59 | | recordings has been established at the hearing or proceeding. |
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| 60 | 60 | | SECTION 2. This Act applies only to the admissibility of a |
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| 61 | 61 | | recorded oral statement at a hearing or proceeding that commences |
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| 62 | 62 | | on or after the effective date of this Act, regardless of whether |
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| 63 | 63 | | the statement was made before, on, or after that date. |
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| 64 | 64 | | SECTION 3. This Act takes effect September 1, 2009. |
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