Texas 2009 - 81st Regular

Texas Senate Bill SB260 Compare Versions

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

Old	New	Differences
1	1	81R1647 PEP-D
2	2	By: Ellis S.B. No. 260
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to the disclosure of certain information regarding, and
8	8	the admissibility and use of testimony by, a witness for the state
9	9	in a criminal case.
10	10	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
11	11	SECTION 1. Chapter 36, Code of Criminal Procedure, is
12	12	amended by adding Article 36.145 to read as follows:
13	13	Art. 36.145. STATEMENT REGARDING TESTIMONY OF IN-CUSTODY
14	14	WITNESS. (a) In this article, "in-custody witness" includes:
15	15	(1) a person detained by a peace officer or law
16	16	enforcement agency for the purposes of custodial interrogation; and
17	17	(2) a person confined in a correctional facility, as
18	18	defined by Section 1.07, Penal Code, after being arrested for,
19	19	charged with, or convicted of an offense.
20	20	(b) In any case in which the jury hears the testimony of an
21	21	in-custody witness, the judge shall include in the court's charge
22	22	under Article 36.14 a statement that the jury may subject the
23	23	testimony of an in-custody witness to higher scrutiny with regard
24	24	to reliability and that, in considering the reliability of the
25	25	witness, the jury may consider:
26	26	(1) whether the witness has received or has been
27	27	promised any inducement in exchange for testimony;
28	28	(2) whether the witness has ever recanted or otherwise
29	29	changed the witness's testimony during the investigation or
30	30	prosecution of the case;
31	31	(3) the general character of the witness;
32	32	(4) the nature of the relationship between the
33	33	defendant and the witness; and
34	34	(5) whether there is any evidence that tends to
35	35	independently corroborate the witness's testimony.
36	36	(c) The judge may not inform the jury that the court held an
37	37	admissibility hearing under Article 38.074 or that the court made
38	38	any pretrial determinations regarding the reliability of the
39	39	witness's testimony.
40	40	SECTION 2. Chapter 38, Code of Criminal Procedure, is
41	41	amended by adding Articles 38.061, 38.074, and 38.075 to read as
42	42	follows:
43	43	Art. 38.061. DISCLOSURE OF WITNESS INDUCEMENT. (a) Before
44	44	the trial of a criminal case, the state shall disclose in writing to
45	45	the defendant and to the defendant's counsel the following
46	46	information with respect to each witness for the state expected to
47	47	testify during the trial:
48	48	(1) whether the witness has received or has been
49	49	promised any inducement, including pay, immunity from or leniency
50	50	in prosecution, and personal advantage, in exchange for testimony;
51	51	(2) whether the witness has ever recanted or otherwise
52	52	changed the witness's testimony during the investigation or
53	53	prosecution of the case;
54	54	(3) identifying information regarding any other
55	55	criminal case in which the witness offered a statement against a
56	56	defendant but was not called to testify for the state, whether the
57	57	statement was admitted in the case, and whether the witness
58	58	received or was promised any inducement in exchange for the
59	59	statement; and
60	60	(4) the criminal history of the witness.
61	61	(b) The state shall supplement its written disclosure under
62	62	this section as necessary to include witnesses added to the witness
63	63	list of the state after the trial begins.
64	64	Art. 38.074. ADMISSIBILITY HEARING REGARDING TESTIMONY OF
65	65	IN-CUSTODY WITNESS. (a) In this article, "in-custody witness" has
66	66	the meaning assigned by Article 36.145.
67	67	(b) If the prosecuting attorney will offer testimony by an
68	68	in-custody witness in a criminal case, the judge shall hold a
69	69	hearing before the trial of the case, except as provided by
70	70	Subsection (e), to determine the reliability and admissibility of
71	71	the testimony at the guilt or innocence phase or the sentencing
72	72	phase of the trial or both.
73	73	(c) At the hearing, the prosecuting attorney must prove by a
74	74	preponderance of the evidence that the testimony of the in-custody
75	75	witness is reliable.
76	76	(d) The judge may consider the following factors in
77	77	determining the reliability of an in-custody witness:
78	78	(1) the alleged statements to which the witness will
79	79	testify and the date, time, place, and other circumstances
80	80	surrounding the statements;
81	81	(2) whether the witness has received or has been
82	82	promised any inducement, including pay, immunity from or leniency
83	83	in prosecution, and personal advantage, in exchange for the
84	84	testimony;
85	85	(3) the criminal history of the witness;
86	86	(4) whether the witness has ever recanted or otherwise
87	87	changed the witness's testimony during the investigation or
88	88	prosecution of the case;
89	89	(5) any other criminal case in which the witness
90	90	testified to alleged confessions or statements by others; and
91	91	(6) any other evidence that may attest to or diminish
92	92	the reliability of the witness, including the presence or absence
93	93	of any relationship between the defendant and the witness.
94	94	(e) If an in-custody witness is added to the witness list of
95	95	the state after the date the trial begins, the judge shall hold the
96	96	hearing required by this article as soon as practicable after the
97	97	date the witness is added.
98	98	Art. 38.075. USE OF IN-CUSTODY WITNESS TESTIMONY; POLICIES
99	99	AND PROCEDURES. (a) In this article, "in-custody witness" has the
100	100	meaning assigned by Article 36.145.
101	101	(b) A defendant may not be convicted of an offense on the
102	102	testimony of an in-custody witness unless the testimony is
103	103	corroborated by other evidence that tends to independently connect
104	104	the defendant with the offense committed. Corroboration that shows
105	105	only the commission of the offense is not sufficient for purposes of
106	106	this subsection.
107	107	(c) To ensure the reliability of testimony provided by an
108	108	in-custody witness, each district attorney, criminal district
109	109	attorney, or county attorney who represents the state in the
110	110	prosecution of criminal cases shall establish policies and
111	111	procedures governing the recording and use of that testimony.
112	112	SECTION 3. (a) The change in law made by this Act applies
113	113	only to a criminal case in which the voir dire examination begins on
114	114	or after the effective date of this Act. A criminal case in which
115	115	the voir dire examination begins before the effective date of this
116	116	Act is covered by the law in effect when the examination begins, and
117	117	the former law is continued in effect for that purpose.
118	118	(b) Each district attorney, criminal district attorney, or
119	119	county attorney who represents the state in the prosecution of
120	120	criminal cases shall establish the policies and procedures required
121	121	by Article 38.075, Code of Criminal Procedure, as added by this Act,
122	122	not later than January 1, 2010.
123	123	SECTION 4. This Act takes effect September 1, 2009.