81R9315 KEL-D
By: Hinojosa S.B. No. 1957
A BILL TO BE ENTITLED
AN ACT
relating to the electronic recording of custodial interrogations
and certain statements and the admissibility of statements
resulting from those interrogations.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 2, Article 38.22, Code of Criminal
Procedure, is amended to read as follows:
Sec. 2. No written statement made by an accused as a result
of custodial interrogation is admissible as evidence against him in
any criminal proceeding unless the interrogation was recorded
according to the requirements of Section 3 and unless it is shown on
the face of the statement that:
(a) the accused, prior to making the statement, either
received from a magistrate the warning provided in Article 15.17
[of this code] or received from the person to whom the statement is
made a warning that:
(1) he has the right to remain silent and not make
any statement at all and that any statement he makes may be used
against him at his trial;
(2) any statement he makes may be used as
evidence against him in court;
(3) he has the right to have a lawyer present to
advise him prior to and during any questioning;
(4) if he is unable to employ a lawyer, he has the
right to have a lawyer appointed to advise him prior to and during
any questioning; and
(5) he has the right to terminate the interview
at any time; and
(b) the accused, prior to and during the making of the
statement, knowingly, intelligently, and voluntarily signed a
written waiver of [waived] the rights set out in the warning
prescribed by Subsection (a) [of this section].
SECTION 2. Sections 3(a), (c), and (e), Article 38.22, Code
of Criminal Procedure, are amended to read as follows:
(a) No oral or sign language statement of an accused made as
a result of custodial interrogation is [shall be] admissible
against the accused in a criminal proceeding unless:
(1) at least two [an] electronic recordings are made
of the interrogation and the statement, in the form of a [recording,
which may include] motion picture, video tape, audio tape, or other
means appropriate for the recording [visual recording, is made] of
the interrogation and the statement;
(2) prior to the statement but during the recording
the accused is given the warning in Subsection (a) of Section 2
[above] and the accused knowingly, intelligently, and voluntarily
signs a written waiver of [waives] any rights set out in the
warning;
(3) the recording device was capable of making an
accurate recording, the operator was competent, and the recording
is accurate and has not been altered;
(4) all voices on the recording that are material to
the custodial interrogation or the making of the statement are
identified; and
(5) not later than the 20th day before the date of the
proceeding, the attorney representing the defendant is provided
with a true, complete, and accurate copy of all recordings of the
defendant made under this article.
(c) The electronic recording requirements of this article
do [Subsection (a) of this section shall] not apply to any statement
which contains assertions of facts or circumstances that are found
to be true and which conduce to establish the guilt of the accused,
such as the finding of secreted or stolen property or the instrument
with which he states the offense was committed.
(e) The courts of this state shall strictly construe the
electronic recording requirements [Subsection (a)] of this article
[section] and may not interpret those requirements [Subsection (a)]
as making admissible a statement unless all requirements of
Subsection (a) [the subsection] have been satisfied by the state,
except that [:
[(1) only voices that are material are identified; and
[(2)] the accused was given the warning in Subsection
(a) of Section 2 [above] or its fully effective equivalent.
SECTION 3. Article 38.22, Code of Criminal Procedure, is
amended by adding Section 3A to read as follows:
Sec. 3A. Notwithstanding the electronic recording
requirements of this article, a statement is not inadmissible
because of a failure to make an electronic recording if it is shown
by clear and convincing evidence that the statement was voluntary
and reliable and that the law enforcement officers conducting the
interrogation or taking the statement, as applicable, had good
cause not to comply with those requirements. Good cause may be
established by showing that the failure to record an interrogation
or an oral or sign language statement was the result of:
(1) an accident or unintentional mistake by a law
enforcement officer conducting the interrogation or taking the
statement;
(2) a failure of the recording equipment that was not
caused by the negligence of a law enforcement officer conducting
the interrogation or taking the statement; or
(3) the occurrence or imminent threat of a disaster,
as defined by Section 418.004, Government Code.
SECTION 4. The change in law made by this Act applies only
to the admissibility of a statement made on or after the effective
date of this Act. The admissibility of a statement made before the
effective date of this Act is covered by the law in effect when the
statement was made, and the former law is continued in effect for
that purpose.
SECTION 5. This Act takes effect September 1, 2009.