By: Smithee, et al. (Senate Sponsor - Perry) H.B. No. 34
(In the Senate - Received from the House May 3, 2017;
May 18, 2017, read first time and referred to Committee on Criminal
Justice; May 21, 2017, reported adversely, with favorable
Committee Substitute by the following vote: Yeas 7, Nays 0;
May 21, 2017, sent to printer.)
Click here to see the committee vote
COMMITTEE SUBSTITUTE FOR H.B. No. 34 By: Whitmire
A BILL TO BE ENTITLED
AN ACT
relating to measures to prevent wrongful convictions.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Chapter 2, Code of Criminal Procedure, is
amended by adding Articles 2.023 and 2.32 to read as follows:
Art. 2.023. TRACKING USE OF CERTAIN TESTIMONY. (a) In this
article:
(1) "Attorney representing the state" means a district
attorney, a criminal district attorney, or a county attorney with
criminal jurisdiction.
(2) "Correctional facility" has the meaning assigned
by Section 1.07, Penal Code.
(b) An attorney representing the state shall track:
(1) the use of testimony of a person to whom a
defendant made a statement against the defendant's interest while
the person was imprisoned or confined in the same correctional
facility as the defendant, regardless of whether the testimony is
presented at trial; and
(2) any benefits offered or provided to a person in
exchange for testimony described by Subdivision (1).
Art. 2.32. ELECTRONIC RECORDING OF CUSTODIAL
INTERROGATIONS. (a) In this article:
(1) "Electronic recording" means an audiovisual
electronic recording, or an audio recording if an audiovisual
electronic recording is unavailable, that is authentic, accurate,
and unaltered.
(2) "Law enforcement agency" means an agency of the
state, or of a county, municipality, or other political subdivision
of this state, that employs peace officers who, in the routine
performance of the officers' duties, conduct custodial
interrogations of persons suspected of committing criminal
offenses.
(3) "Place of detention" means a police station or
other building that is a place of operation for a law enforcement
agency, including a municipal police department or county sheriff's
department, and is owned or operated by the law enforcement agency
for the purpose of detaining persons in connection with the
suspected violation of a penal law. The term does not include a
courthouse.
(b) Unless good cause exists that makes electronic
recording infeasible, a law enforcement agency shall make a
complete and contemporaneous electronic recording of any custodial
interrogation that occurs in a place of detention and is of a person
suspected of committing or charged with the commission of an
offense under:
(1) Section 19.02, Penal Code (murder);
(2) Section 19.03, Penal Code (capital murder);
(3) Section 20.03, Penal Code (kidnapping);
(4) Section 20.04, Penal Code (aggravated
kidnapping);
(5) Section 20A.02, Penal Code (trafficking of
persons);
(6) Section 20A.03, Penal Code (continuous
trafficking of persons);
(7) Section 21.02, Penal Code (continuous sexual abuse
of young child or children);
(8) Section 21.11, Penal Code (indecency with a
child);
(9) Section 21.12, Penal Code (improper relationship
between educator and student);
(10) Section 22.011, Penal Code (sexual assault);
(11) Section 22.021, Penal Code (aggravated sexual
assault); or
(12) Section 43.25, Penal Code (sexual performance by
a child).
(c) For purposes of Subsection (b), an electronic recording
of a custodial interrogation is complete only if the recording:
(1) begins at or before the time the person being
interrogated enters the area of the place of detention in which the
custodial interrogation will take place or receives a warning
described by Section 2(a), Article 38.22, whichever is earlier; and
(2) continues until the time the interrogation ceases.
(d) For purposes of Subsection (b), good cause that makes
electronic recording infeasible includes the following:
(1) the person being interrogated refused to respond
or cooperate in a custodial interrogation at which an electronic
recording was being made, provided that:
(A) a contemporaneous recording of the refusal
was made; or
(B) the peace officer or agent of the law
enforcement agency conducting the interrogation attempted, in good
faith, to record the person's refusal but the person was unwilling
to have the refusal recorded, and the peace officer or agent
contemporaneously, in writing, documented the refusal;
(2) the statement was not made as the result of a
custodial interrogation, including a statement that was made
spontaneously by the accused and not in response to a question by a
peace officer;
(3) the peace officer or agent of the law enforcement
agency conducting the interrogation attempted, in good faith, to
record the interrogation but the recording equipment did not
function, the officer or agent inadvertently operated the equipment
incorrectly, or the equipment malfunctioned or stopped operating
without the knowledge of the officer or agent;
(4) exigent public safety concerns prevented or
rendered infeasible the making of an electronic recording of the
statement; or
(5) the peace officer or agent of the law enforcement
agency conducting the interrogation reasonably believed at the time
the interrogation commenced that the person being interrogated was
not taken into custody for or being interrogated concerning the
commission of an offense listed in Subsection (b).
(e) A recording of a custodial interrogation that complies
with this article is exempt from public disclosure as provided by
Section 552.108, Government Code.
SECTION 2. Article 38.075, Code of Criminal Procedure, is
amended by adding Subsection (c) to read as follows:
(c) Evidence of a prior offense committed by a person who
gives testimony described by Subsection (a) may be admitted for the
purpose of impeachment if the person received a benefit described
by Article 39.14(h-1)(2) with respect to the offense, regardless of
whether the person was convicted of the offense.
SECTION 3. Section 3, Article 38.20, Code of Criminal
Procedure, is amended by amending Subsection (c) and adding
Subsection (d) to read as follows:
(c) The model policy or any other policy adopted by a law
enforcement agency under Subsection (a) must:
(1) be based on:
(A) credible field, academic, or laboratory
research on eyewitness memory;
(B) relevant policies, guidelines, and best
practices designed to reduce erroneous eyewitness identifications
and to enhance the reliability and objectivity of eyewitness
identifications; and
(C) other relevant information as appropriate;
and
(2) include [address] the following information
regarding evidence-based practices [topics]:
(A) procedures for selecting [the selection of]
photograph and live lineup filler photographs or participants to
ensure that the photographs or participants:
(i) are consistent in appearance with the
description of the alleged perpetrator that was provided by a
witness; and
(ii) do not make the suspect noticeably
stand out;
(B) instructions given to a witness before
conducting a photograph or live lineup identification procedure
that must include a statement that the person who committed the
offense may or may not be present in the procedure and that the
investigation will continue regardless of whether the witness
identifies a person in the procedure;
(C) procedures for documenting and preserving
the [documentation and preservation of] results of a photograph or
live lineup identification procedure, including the documentation
of witness statements, regardless of the outcome of the procedure;
(D) procedures for administering a photograph or
live lineup identification procedure to an illiterate person or a
person with limited English language proficiency;
(E) for a live lineup identification procedure,
[if practicable,] procedures for assigning an administrator who is
unaware of which member of the live lineup is the suspect in the
case [or alternative procedures designed to prevent opportunities
to influence the witness];
(F) for a photograph identification procedure,
procedures for assigning an administrator who is capable of
administering a photograph array in a blind manner or in a manner
consistent with other proven or supported best practices designed
to prevent opportunities to influence the witness; and
(G) any other procedures or best practices
supported by credible research or commonly accepted as a means to
reduce erroneous eyewitness identifications and to enhance the
objectivity and reliability of eyewitness identifications.
(d) A witness who makes an identification based on a
photograph or live lineup identification procedure shall be asked
immediately after the procedure to state, in the witness's own
words, the witness's level of confidence in making the
identification. A law enforcement agency shall document in
accordance with Subsection (c)(2)(C) any statement made under this
subsection.
SECTION 4. Section 5, Article 38.20, Code of Criminal
Procedure, is amended to read as follows:
Sec. 5. (a) Any evidence or expert testimony presented by
the state or the defendant on the subject of eyewitness
identification is admissible only subject to compliance with the
Texas Rules of Evidence. Except as provided by Subsection (c),
evidence [Evidence] of compliance with the model policy or any
other policy adopted under this article [or with the minimum
requirements of this article] is not a condition precedent to the
admissibility of an out-of-court eyewitness identification.
(b) Notwithstanding Article 38.23 as that article relates
to a violation of a state statute and except as provided by
Subsection (c), a failure to conduct a photograph or live lineup
identification procedure in substantial compliance with the model
policy or any other policy adopted under this article [or with the
minimum requirements of this article] does not bar the admission of
eyewitness identification testimony in the courts of this state.
(c) If a witness who has previously made an out-of-court
photograph or live lineup identification of the accused makes an
in-court identification of the accused, the eyewitness
identification is admissible into evidence against the accused only
if the evidence is accompanied by:
(1) the details of each prior photograph or live
lineup identification made of the accused by the witness, including
the manner in which the identification procedure was conducted; and
(2) evidence showing the witness's confidence level as
described by the witness at the time of a prior photograph or live
lineup identification specified under Subdivision (1).
SECTION 5. Article 38.22, Code of Criminal Procedure, is
amended by adding Section 9 to read as follows:
Sec. 9. Notwithstanding any other provision of this
article, no oral, sign language, or written statement that is made
by a person accused of an offense listed in Article 2.32(b) and made
as a result of a custodial interrogation occurring in a place of
detention, as that term is defined by Article 2.32, is admissible
against the accused in a criminal proceeding unless:
(1) an electronic recording was made of the statement,
as required by Article 2.32(b); or
(2) the attorney representing the state offers proof
satisfactory to the court that good cause, as described by Article
2.32(d), existed that made electronic recording of the custodial
interrogation infeasible.
SECTION 6. Article 39.14, Code of Criminal Procedure, is
amended by adding Subsection (h-1) to read as follows:
(h-1) In this subsection, "correctional facility" has the
meaning assigned by Section 1.07, Penal Code. Notwithstanding any
other provision of this article, if the state intends to use at a
defendant's trial testimony of a person to whom the defendant made a
statement against the defendant's interest while the person was
imprisoned or confined in the same correctional facility as the
defendant, the state shall disclose to the defendant:
(1) the person's complete criminal history, including
any charges that were dismissed or reduced as part of a plea
bargain;
(2) any grant, promise, or offer of immunity from
prosecution, reduction of sentence, or other leniency or special
treatment, given by the state in exchange for the person's
testimony;
(3) information concerning other criminal cases in
which the person has testified, or offered to testify, against a
defendant with whom the person was imprisoned or confined,
including any grant, promise, or offer as described by Subdivision
(2) given by the state in exchange for the testimony; and
(4) other information in the possession, custody, or
control of the state that is relevant to the person's credibility.
SECTION 7. Section 1701.253, Occupations Code, is amended
by adding Subsection (n) to read as follows:
(n) As part of the minimum curriculum requirements, the
commission shall establish a statewide comprehensive education and
training program on eyewitness identification, including the
variables that affect a witness's vision and memory, practices for
minimizing contamination, and effective eyewitness identification
protocols.
SECTION 8. STUDY REGARDING USE OF DRUG FIELD TEST KITS. (a)
The Texas Forensic Science Commission shall conduct a study
regarding the use of drug field test kits by law enforcement
agencies in this state. The commission shall:
(1) evaluate the quality, accuracy, and reliability of
drug field test kits;
(2) identify any common problems with drug field test
kits;
(3) evaluate the availability and adequacy of training
for law enforcement officers regarding the use of drug field test
kits and the interpretation of the test results; and
(4) develop legislative recommendations regarding the
use of drug field test kits by law enforcement agencies and
regarding related training for law enforcement officers.
(b) Not later than December 1, 2018, the Texas Forensic
Science Commission shall submit to the governor, the lieutenant
governor, and each member of the legislature a written report that
summarizes the results of the study conducted under this section
and includes any legislative recommendations.
SECTION 9. CRIME SCENE INVESTIGATION STUDY. (a) The Texas
Forensic Science Commission shall conduct a study regarding the
manner in which crime scene investigations are conducted in this
state. The commission shall:
(1) evaluate the standard procedures used in
processing a crime scene and evaluate the quality of crime scene
investigations;
(2) evaluate the availability and adequacy of the
training or continuing education provided to crime scene
investigators; and
(3) develop legislative recommendations regarding
improvements to crime scene investigation procedures and training.
(b) Not later than December 1, 2018, the Texas Forensic
Science Commission shall submit to the governor, the lieutenant
governor, and each member of the legislature a written report that
summarizes the results of the study conducted under this section
and includes any legislative recommendations.
SECTION 10. Article 2.32 and Section 9, Article 38.22, Code
of Criminal Procedure, as added by this Act, apply to the use of a
statement resulting from a custodial interrogation that occurs on
or after March 1, 2018, regardless of whether the criminal offense
giving rise to that interrogation is committed before, on, or after
that date.
SECTION 11. Article 38.075(c), Code of Criminal Procedure,
as added by this Act, applies to the admissibility of evidence in a
criminal proceeding that commences on or after the effective date
of this Act. The admissibility of evidence in a criminal proceeding
that commences before the effective date of this Act is governed by
the law in effect on the date the proceeding commenced, and the
former law is continued in effect for that purpose.
SECTION 12. (a) Section 3(d), Article 38.20, Code of
Criminal Procedure, as added by this Act, applies only to a
photograph or live lineup identification procedure conducted on or
after the effective date of this Act, regardless of whether the
offense to which the procedure is related was committed before, on,
or after the effective date of this Act.
(b) Section 5, Article 38.20, Code of Criminal Procedure, as
amended by this Act, applies only to the trial of an offense with
respect to which a prior photograph or live lineup identification
of the accused occurred on or after the effective date of this Act,
regardless of whether the offense that is the subject of the trial
was committed before, on, or after the effective date of this Act.
SECTION 13. Article 39.14(h-1), Code of Criminal Procedure,
as added by this Act, applies to the prosecution of an offense
committed on or after the effective date of this Act. The
prosecution of an offense committed before the effective date of
this Act is governed by the law in effect on the date the offense was
committed, and the former law is continued in effect for that
purpose. For purposes of this section, an offense is committed
before the effective date of this Act if any element of the offense
occurs before the effective date.
SECTION 14. Not later than January 1, 2018, the Texas
Commission on Law Enforcement shall establish the eyewitness
identification education and training program as required by
Section 1701.253(n), Occupations Code, as added by this Act.
SECTION 15. This Act takes effect September 1, 2017.
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