Texas 2009 - 81st Regular

Texas Senate Bill SB116 Compare Versions

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1	1	81R168 KCR-F
2	2	By: Ellis S.B. No. 116
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to electronically recording certain interrogations and
8	8	the admissibility of certain statements made by a juvenile or a
9	9	criminal defendant.
10	10	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
11	11	SECTION 1. Chapter 2, Code of Criminal Procedure, is
12	12	amended by adding Article 2.31 to read as follows:
13	13	Art. 2.31. ELECTRONIC RECORDING OF INTERROGATIONS. (a)
14	14	Each law enforcement agency in this state shall provide training
15	15	concerning the technological aspects of electronically recording
16	16	interrogations to peace officers and other employees of the law
17	17	enforcement agency who interrogate criminal defendants or
18	18	suspects, including juveniles.
19	19	(b) The Department of Public Safety shall adopt rules for
20	20	providing funds or electronic recording equipment to law
21	21	enforcement agencies in this state for the purpose of recording
22	22	interrogations of criminal defendants or suspects, including
23	23	juveniles.
24	24	SECTION 2. Section 2, Article 38.22, Code of Criminal
25	25	Procedure, is amended to read as follows:
26	26	Sec. 2. (a) No written statement made by an accused as a
27	27	result of custodial interrogation is admissible as evidence against
28	28	the accused [him] in any criminal proceeding unless:
29	29	(1) it is shown on the face of the statement that:
30	30	(A) [(a)] the accused, prior to making the
31	31	statement, either received from a magistrate the warning provided
32	32	in Article 15.17 of this code or received from the person to whom
33	33	the statement is made a warning that:
34	34	(i) the accused [(1) he] has the right to
35	35	remain silent and not make any statement at all and that any
36	36	statement the accused [he] makes may be used against the accused
37	37	[him] at [his] trial;
38	38	(ii) [(2)] any statement the accused [he]
39	39	makes may be used as evidence against the accused [him] in court;
40	40	(iii) the accused [(3) he] has the right to
41	41	have a lawyer present to advise the accused [him] prior to and
42	42	during any questioning;
43	43	(iv) [(4)] if the accused [he] is unable to
44	44	employ a lawyer, the accused [he] has the right to have a lawyer
45	45	appointed to advise the accused [him] prior to and during any
46	46	questioning; and
47	47	(v) the accused [(5) he] has the right to
48	48	terminate the interview at any time; and
49	49	(B) [(b)] the accused, prior to and during the
50	50	making of the statement, knowingly, intelligently, and voluntarily
51	51	waived the rights set out in the warning prescribed by Paragraph
52	52	(A); and
53	53	(2) in the case of a criminal proceeding in which the
54	54	accused is charged with a felony, an electronic recording that
55	55	complies with the requirements of Section 3(a) is made of the
56	56	custodial interrogation resulting in the statement [Subsection (a)
57	57	of this section].
58	58	(b) Every electronic recording of a custodial
59	59	interrogation, if any, resulting in a written statement must be
60	60	preserved until such time as:
61	61	(1) the defendant's conviction for any offense
62	62	relating to the statement is final, all direct appeals of the case
63	63	are exhausted, and the time to file a petition for a writ of habeas
64	64	corpus has expired; or
65	65	(2) the prosecution of the offense is barred by law.
66	66	(c) Notwithstanding Subsection (a)(2), a written statement
67	67	made by an accused as a result of a custodial interrogation is
68	68	admissible as evidence against the accused in a criminal proceeding
69	69	if the requirements of Subsection (a)(1) are satisfied with respect
70	70	to each portion of the written statement that is to be used as
71	71	evidence. This subsection expires September 1, 2012.
72	72	SECTION 3. Section 3, Article 38.22, Code of Criminal
73	73	Procedure, is amended by amending Subsections (a) and (b) and
74	74	adding Subsection (f) to read as follows:
75	75	(a) No oral or sign language statement of an accused made as
76	76	a result of custodial interrogation is [shall be] admissible
77	77	against the accused in a criminal proceeding unless:
78	78	(1) an electronic recording, which may include motion
79	79	picture, video tape, or other visual recording, is made of:
80	80	(A) the statement; and
81	81	(B) in the case of a criminal proceeding in which
82	82	the accused is charged with a felony, the custodial interrogation
83	83	resulting in the statement;
84	84	(2) prior to the statement but during the recording
85	85	the accused is given the warning in [Subsection (a) of] Section 2(a)
86	86	[2 above] and the accused knowingly, intelligently, and voluntarily
87	87	waives any rights set out in the warning;
88	88	(3) the recording device was capable of making an
89	89	accurate recording, the operator was competent, and the recording
90	90	is substantially accurate and has not been intentionally altered;
91	91	(4) all voices on the recording are identified; and
92	92	(5) not later than the 20th day before the date of the
93	93	proceeding, the attorney representing the defendant is provided
94	94	with a true, complete, and accurate copy of all recordings of the
95	95	defendant made under this article.
96	96	(b) Every electronic recording of a custodial interrogation
97	97	resulting in an oral or sign language statement, if any, and any
98	98	statement made by an accused during a custodial interrogation must
99	99	be preserved until such time as:
100	100	(1) the defendant's conviction for any offense
101	101	relating to the statement [thereto] is final, all direct appeals of
102	102	the case [therefrom] are exhausted, and the time to file a petition
103	103	requesting a writ of habeas corpus has expired; or
104	104	(2) the prosecution of the offense [such offenses] is
105	105	barred by law.
106	106	(f) Notwithstanding the requirement of Subsection (a)(1)(B)
107	107	that in felony cases a recording be made of the custodial
108	108	interrogation resulting in the statement, an oral or sign language
109	109	statement made by an accused as a result of a custodial
110	110	interrogation is admissible as evidence against the accused in a
111	111	criminal proceeding if the requirements of Subsection (a) are
112	112	otherwise satisfied with respect to each portion of the oral or sign
113	113	language statement that is to be used as evidence. This subsection
114	114	expires September 1, 2012.
115	115	SECTION 4. Article 38.22, Code of Criminal Procedure, is
116	116	amended by adding Section 9 to read as follows:
117	117	Sec. 9. A recording of a custodial interrogation made under
118	118	Section 2(a)(2) or 3(a) is exempt from required public disclosure
119	119	under Chapter 552, Government Code.
120	120	SECTION 5. Section 51.095, Family Code, is amended by
121	121	amending Subsections (a), (c), and (f) and adding Subsections (g),
122	122	(h), and (i) to read as follows:
123	123	(a) Notwithstanding Section 51.09, the statement of a child
124	124	is admissible in evidence in any future proceeding concerning the
125	125	matter about which the statement was given if:
126	126	(1) the statement is made in writing under a
127	127	circumstance described by Subsection (d) and:
128	128	(A) the statement shows that the child has at
129	129	some time before the making of the statement received from a
130	130	magistrate a warning that:
131	131	(i) the child may remain silent and not make
132	132	any statement at all and that any statement that the child makes may
133	133	be used in evidence against the child;
134	134	(ii) the child has the right to have an
135	135	attorney present to advise the child either prior to any
136	136	questioning or during the questioning;
137	137	(iii) if the child is unable to employ an
138	138	attorney, the child has the right to have an attorney appointed to
139	139	counsel with the child before or during any interviews with peace
140	140	officers or attorneys representing the state; and
141	141	(iv) the child has the right to terminate
142	142	the interview at any time;
143	143	(B) and:
144	144	(i) the statement must be signed in the
145	145	presence of a magistrate by the child with no law enforcement
146	146	officer or prosecuting attorney present, except that a magistrate
147	147	may require a bailiff or a law enforcement officer if a bailiff is
148	148	not available to be present if the magistrate determines that the
149	149	presence of the bailiff or law enforcement officer is necessary for
150	150	the personal safety of the magistrate or other court personnel,
151	151	provided that the bailiff or law enforcement officer may not carry a
152	152	weapon in the presence of the child; and
153	153	(ii) the magistrate must be fully convinced
154	154	that the child understands the nature and contents of the statement
155	155	and that the child is signing the same voluntarily, and if a
156	156	statement is taken, the magistrate must sign a written statement
157	157	verifying the foregoing requisites have been met;
158	158	(C) the child knowingly, intelligently, and
159	159	voluntarily waives these rights before and during the making of the
160	160	statement and signs the statement in the presence of a magistrate;
161	161	[and]
162	162	(D) the magistrate certifies that the magistrate
163	163	has had the opportunity to view any recording made under Paragraph
164	164	(E), has examined the child independent of any law enforcement
165	165	officer or prosecuting attorney, except as required to ensure the
166	166	personal safety of the magistrate or other court personnel, and has
167	167	determined that the child understands the nature and contents of
168	168	the statement and has knowingly, intelligently, and voluntarily
169	169	waived these rights; and
170	170	(E) in the case of a proceeding in which it is
171	171	alleged that the child engaged in conduct violating a penal law of
172	172	the grade of felony, the interrogation, if any, of the child
173	173	resulting in the statement is recorded by an electronic recording
174	174	device, including a device that records images, and:
175	175	(i) the recording device is capable of
176	176	making an accurate recording, the operator of the device is
177	177	competent to use the device, the recording is substantially
178	178	accurate, and the recording has not been intentionally altered;
179	179	(ii) each voice on the recording is
180	180	identified; and
181	181	(iii) not later than the 20th day before the
182	182	date of the proceeding, the attorney representing the child is
183	183	given a complete and accurate copy of each recording of the child
184	184	made under this subdivision;
185	185	(2) the statement is made orally and the child makes a
186	186	statement of facts or circumstances that are found to be true and
187	187	tend to establish the child's guilt, such as the finding of secreted
188	188	or stolen property, or the instrument with which the child states
189	189	the offense was committed;
190	190	(3) the statement was res gestae of the delinquent
191	191	conduct or the conduct indicating a need for supervision or of the
192	192	arrest;
193	193	(4) the statement is made:
194	194	(A) in open court at the child's adjudication
195	195	hearing;
196	196	(B) before a grand jury considering a petition,
197	197	under Section 53.045, that the child engaged in delinquent conduct;
198	198	or
199	199	(C) at a preliminary hearing concerning the child
200	200	held in compliance with this code, other than at a detention hearing
201	201	under Section 54.01; or
202	202	(5) subject to Subsection (f), the statement is made
203	203	orally under a circumstance described by Subsection (d) and the
204	204	statement and, in the case of a proceeding in which it is alleged
205	205	that the child engaged in conduct violating a penal law of the grade
206	206	of felony, the interrogation, if any, of the child resulting in the
207	207	statement are [is] recorded by an electronic recording device,
208	208	including a device that records images, and:
209	209	(A) before making the statement, the child is
210	210	given the warning described by Subdivision (1)(A) by a magistrate,
211	211	the warning is a part of the recording, and the child knowingly,
212	212	intelligently, and voluntarily waives each right stated in the
213	213	warning;
214	214	(B) the recording device is capable of making an
215	215	accurate recording, the operator of the device is competent to use
216	216	the device, the recording is substantially accurate, and the
217	217	recording has not been intentionally altered;
218	218	(C) each voice on the recording is identified;
219	219	and
220	220	(D) not later than the 20th day before the date of
221	221	the proceeding, the attorney representing the child is given a
222	222	complete and accurate copy of each recording of the child made under
223	223	this subdivision.
224	224	(c) An electronic recording [of a child's statement] made
225	225	under Subsection (a)(1) or (a)(5) shall be preserved until all
226	226	juvenile or criminal matters relating to any conduct referred to in
227	227	the recording [statement] are final, including the exhaustion of
228	228	all appeals, or barred from prosecution.
229	229	(f) A magistrate who provides the warnings required by
230	230	Subsection (a)(5) for a recorded oral statement may, at the time the
231	231	warnings are provided, request by speaking on the recording that
232	232	the officer return [the child and the recording] to the magistrate
233	233	at the conclusion of the process of questioning the child and the
234	234	recording and, in the case of a proceeding in which it is alleged
235	235	that the child engaged in conduct violating a penal law of the grade
236	236	of felony, any recording of any other interrogation of the child
237	237	resulting in the oral statement being recorded. The magistrate may
238	238	then view the recording or recordings with the child or have the
239	239	child view the recording or recordings to enable the magistrate to
240	240	determine whether the child's oral statements were given
241	241	voluntarily. The magistrate's determination of voluntariness
242	242	shall be reduced to writing and signed and dated by the magistrate.
243	243	If a magistrate uses the procedure described by this subsection, a
244	244	child's oral statement is not admissible unless the magistrate
245	245	determines that the statement was given voluntarily.
246	246	(g) A recording of an interrogation made under Subsection
247	247	(a)(1) or (a)(5) is exempt from required public disclosure under
248	248	Chapter 552, Government Code.
249	249	(h) Notwithstanding the requirements of Subsections
250	250	(a)(1)(E) and (a)(5) that a recording be made of the interrogation
251	251	resulting in the statement, a statement that is made in writing or
252	252	made orally under a circumstance described by Subsection (d) is
253	253	admissible in any future proceeding concerning the matter about
254	254	which the statement was given if:
255	255	(1) concerning a statement made in writing, the
256	256	requirements of Subsections (a)(1)(A)-(D) are satisfied with
257	257	respect to each portion of the statement that is to be used as
258	258	evidence; or
259	259	(2) concerning a statement made orally, the
260	260	requirements of Subsection (a)(5) are otherwise satisfied with
261	261	respect to each portion of the statement that is to be used as
262	262	evidence.
263	263	(i) Subsection (h) and this subsection expire September 1,
264	264	2012.
265	265	SECTION 6. The Department of Public Safety shall begin
266	266	adopting rules under Article 2.31(b), Code of Criminal Procedure,
267	267	as added by this Act, not later than March 1, 2010.
268	268	SECTION 7. Article 38.22, Code of Criminal Procedure, as
269	269	amended by this Act, and Section 51.095, Family Code, as amended by
270	270	this Act, apply to the admissibility of a written, oral, or sign
271	271	language statement that is made on or after the effective date of
272	272	this Act. A written, oral, or sign language statement that is made
273	273	before the effective date of this Act is governed by the law in
274	274	effect at the time that the statement was made, and that law is
275	275	continued in effect for that purpose.
276	276	SECTION 8. This Act takes effect September 1, 2009.