Texas 2009 - 81st Regular

Texas Senate Bill SB1957 Compare Versions

Only one version of the bill is available at this time.

Old	New	Differences
1	1	81R9315 KEL-D
2	2	By: Hinojosa S.B. No. 1957
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to the electronic recording of custodial interrogations
8	8	and certain statements and the admissibility of statements
9	9	resulting from those interrogations.
10	10	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
11	11	SECTION 1. Section 2, Article 38.22, Code of Criminal
12	12	Procedure, is amended to read as follows:
13	13	Sec. 2. No written statement made by an accused as a result
14	14	of custodial interrogation is admissible as evidence against him in
15	15	any criminal proceeding unless the interrogation was recorded
16	16	according to the requirements of Section 3 and unless it is shown on
17	17	the face of the statement that:
18	18	(a) the accused, prior to making the statement, either
19	19	received from a magistrate the warning provided in Article 15.17
20	20	[of this code] or received from the person to whom the statement is
21	21	made a warning that:
22	22	(1) he has the right to remain silent and not make
23	23	any statement at all and that any statement he makes may be used
24	24	against him at his trial;
25	25	(2) any statement he makes may be used as
26	26	evidence against him in court;
27	27	(3) he has the right to have a lawyer present to
28	28	advise him prior to and during any questioning;
29	29	(4) if he is unable to employ a lawyer, he has the
30	30	right to have a lawyer appointed to advise him prior to and during
31	31	any questioning; and
32	32	(5) he has the right to terminate the interview
33	33	at any time; and
34	34	(b) the accused, prior to and during the making of the
35	35	statement, knowingly, intelligently, and voluntarily signed a
36	36	written waiver of [waived] the rights set out in the warning
37	37	prescribed by Subsection (a) [of this section].
38	38	SECTION 2. Sections 3(a), (c), and (e), Article 38.22, Code
39	39	of Criminal Procedure, are amended to read as follows:
40	40	(a) No oral or sign language statement of an accused made as
41	41	a result of custodial interrogation is [shall be] admissible
42	42	against the accused in a criminal proceeding unless:
43	43	(1) at least two [an] electronic recordings are made
44	44	of the interrogation and the statement, in the form of a [recording,
45	45	which may include] motion picture, video tape, audio tape, or other
46	46	means appropriate for the recording [visual recording, is made] of
47	47	the interrogation and the statement;
48	48	(2) prior to the statement but during the recording
49	49	the accused is given the warning in Subsection (a) of Section 2
50	50	[above] and the accused knowingly, intelligently, and voluntarily
51	51	signs a written waiver of [waives] any rights set out in the
52	52	warning;
53	53	(3) the recording device was capable of making an
54	54	accurate recording, the operator was competent, and the recording
55	55	is accurate and has not been altered;
56	56	(4) all voices on the recording that are material to
57	57	the custodial interrogation or the making of the statement are
58	58	identified; and
59	59	(5) not later than the 20th day before the date of the
60	60	proceeding, the attorney representing the defendant is provided
61	61	with a true, complete, and accurate copy of all recordings of the
62	62	defendant made under this article.
63	63	(c) The electronic recording requirements of this article
64	64	do [Subsection (a) of this section shall] not apply to any statement
65	65	which contains assertions of facts or circumstances that are found
66	66	to be true and which conduce to establish the guilt of the accused,
67	67	such as the finding of secreted or stolen property or the instrument
68	68	with which he states the offense was committed.
69	69	(e) The courts of this state shall strictly construe the
70	70	electronic recording requirements [Subsection (a)] of this article
71	71	[section] and may not interpret those requirements [Subsection (a)]
72	72	as making admissible a statement unless all requirements of
73	73	Subsection (a) [the subsection] have been satisfied by the state,
74	74	except that [:
75	75	[(1) only voices that are material are identified; and
76	76	[(2)] the accused was given the warning in Subsection
77	77	(a) of Section 2 [above] or its fully effective equivalent.
78	78	SECTION 3. Article 38.22, Code of Criminal Procedure, is
79	79	amended by adding Section 3A to read as follows:
80	80	Sec. 3A. Notwithstanding the electronic recording
81	81	requirements of this article, a statement is not inadmissible
82	82	because of a failure to make an electronic recording if it is shown
83	83	by clear and convincing evidence that the statement was voluntary
84	84	and reliable and that the law enforcement officers conducting the
85	85	interrogation or taking the statement, as applicable, had good
86	86	cause not to comply with those requirements. Good cause may be
87	87	established by showing that the failure to record an interrogation
88	88	or an oral or sign language statement was the result of:
89	89	(1) an accident or unintentional mistake by a law
90	90	enforcement officer conducting the interrogation or taking the
91	91	statement;
92	92	(2) a failure of the recording equipment that was not
93	93	caused by the negligence of a law enforcement officer conducting
94	94	the interrogation or taking the statement; or
95	95	(3) the occurrence or imminent threat of a disaster,
96	96	as defined by Section 418.004, Government Code.
97	97	SECTION 4. The change in law made by this Act applies only
98	98	to the admissibility of a statement made on or after the effective
99	99	date of this Act. The admissibility of a statement made before the
100	100	effective date of this Act is covered by the law in effect when the
101	101	statement was made, and the former law is continued in effect for
102	102	that purpose.
103	103	SECTION 5. This Act takes effect September 1, 2009.