81R1647 PEP-D
By: Ellis S.B. No. 260
A BILL TO BE ENTITLED
AN ACT
relating to the disclosure of certain information regarding, and
the admissibility and use of testimony by, a witness for the state
in a criminal case.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Chapter 36, Code of Criminal Procedure, is
amended by adding Article 36.145 to read as follows:
Art. 36.145. STATEMENT REGARDING TESTIMONY OF IN-CUSTODY
WITNESS. (a) In this article, "in-custody witness" includes:
(1) a person detained by a peace officer or law
enforcement agency for the purposes of custodial interrogation; and
(2) a person confined in a correctional facility, as
defined by Section 1.07, Penal Code, after being arrested for,
charged with, or convicted of an offense.
(b) In any case in which the jury hears the testimony of an
in-custody witness, the judge shall include in the court's charge
under Article 36.14 a statement that the jury may subject the
testimony of an in-custody witness to higher scrutiny with regard
to reliability and that, in considering the reliability of the
witness, the jury may consider:
(1) whether the witness has received or has been
promised any inducement in exchange for testimony;
(2) whether the witness has ever recanted or otherwise
changed the witness's testimony during the investigation or
prosecution of the case;
(3) the general character of the witness;
(4) the nature of the relationship between the
defendant and the witness; and
(5) whether there is any evidence that tends to
independently corroborate the witness's testimony.
(c) The judge may not inform the jury that the court held an
admissibility hearing under Article 38.074 or that the court made
any pretrial determinations regarding the reliability of the
witness's testimony.
SECTION 2. Chapter 38, Code of Criminal Procedure, is
amended by adding Articles 38.061, 38.074, and 38.075 to read as
follows:
Art. 38.061. DISCLOSURE OF WITNESS INDUCEMENT. (a) Before
the trial of a criminal case, the state shall disclose in writing to
the defendant and to the defendant's counsel the following
information with respect to each witness for the state expected to
testify during the trial:
(1) whether the witness has received or has been
promised any inducement, including pay, immunity from or leniency
in prosecution, and personal advantage, in exchange for testimony;
(2) whether the witness has ever recanted or otherwise
changed the witness's testimony during the investigation or
prosecution of the case;
(3) identifying information regarding any other
criminal case in which the witness offered a statement against a
defendant but was not called to testify for the state, whether the
statement was admitted in the case, and whether the witness
received or was promised any inducement in exchange for the
statement; and
(4) the criminal history of the witness.
(b) The state shall supplement its written disclosure under
this section as necessary to include witnesses added to the witness
list of the state after the trial begins.
Art. 38.074. ADMISSIBILITY HEARING REGARDING TESTIMONY OF
IN-CUSTODY WITNESS. (a) In this article, "in-custody witness" has
the meaning assigned by Article 36.145.
(b) If the prosecuting attorney will offer testimony by an
in-custody witness in a criminal case, the judge shall hold a
hearing before the trial of the case, except as provided by
Subsection (e), to determine the reliability and admissibility of
the testimony at the guilt or innocence phase or the sentencing
phase of the trial or both.
(c) At the hearing, the prosecuting attorney must prove by a
preponderance of the evidence that the testimony of the in-custody
witness is reliable.
(d) The judge may consider the following factors in
determining the reliability of an in-custody witness:
(1) the alleged statements to which the witness will
testify and the date, time, place, and other circumstances
surrounding the statements;
(2) whether the witness has received or has been
promised any inducement, including pay, immunity from or leniency
in prosecution, and personal advantage, in exchange for the
testimony;
(3) the criminal history of the witness;
(4) whether the witness has ever recanted or otherwise
changed the witness's testimony during the investigation or
prosecution of the case;
(5) any other criminal case in which the witness
testified to alleged confessions or statements by others; and
(6) any other evidence that may attest to or diminish
the reliability of the witness, including the presence or absence
of any relationship between the defendant and the witness.
(e) If an in-custody witness is added to the witness list of
the state after the date the trial begins, the judge shall hold the
hearing required by this article as soon as practicable after the
date the witness is added.
Art. 38.075. USE OF IN-CUSTODY WITNESS TESTIMONY; POLICIES
AND PROCEDURES. (a) In this article, "in-custody witness" has the
meaning assigned by Article 36.145.
(b) A defendant may not be convicted of an offense on the
testimony of an in-custody witness unless the testimony is
corroborated by other evidence that tends to independently connect
the defendant with the offense committed. Corroboration that shows
only the commission of the offense is not sufficient for purposes of
this subsection.
(c) To ensure the reliability of testimony provided by an
in-custody witness, each district attorney, criminal district
attorney, or county attorney who represents the state in the
prosecution of criminal cases shall establish policies and
procedures governing the recording and use of that testimony.
SECTION 3. (a) The change in law made by this Act applies
only to a criminal case in which the voir dire examination begins on
or after the effective date of this Act. A criminal case in which
the voir dire examination begins before the effective date of this
Act is covered by the law in effect when the examination begins, and
the former law is continued in effect for that purpose.
(b) Each district attorney, criminal district attorney, or
county attorney who represents the state in the prosecution of
criminal cases shall establish the policies and procedures required
by Article 38.075, Code of Criminal Procedure, as added by this Act,
not later than January 1, 2010.
SECTION 4. This Act takes effect September 1, 2009.