Texas 2017 - 85th Regular

Texas Senate Bill SB1577 Compare Versions

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

Old	New	Differences
1	1	85R8377 AJZ-D
2	2	By: Perry S.B. No. 1577
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to measures to prevent wrongful convictions.
8	8	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
9	9	SECTION 1. Chapter 2, Code of Criminal Procedure, is
10	10	amended by adding Article 2.023 to read as follows:
11	11	Art. 2.023. POLICY REGARDING USE OF CERTAIN TESTIMONY. (a)
12	12	In this article:
13	13	(1) "Attorney representing the state" means a district
14	14	attorney, criminal district attorney, or county attorney
15	15	performing the duties of a district attorney.
16	16	(2) "Correctional facility" has the meaning assigned
17	17	by Section 1.07, Penal Code.
18	18	(b) An attorney representing the state shall adopt a written
19	19	policy regarding the testimony of a person to whom a defendant made
20	20	a statement against the defendant's interest while the person was
21	21	imprisoned or confined in the same correctional facility as the
22	22	defendant and regarding how that testimony may be used at the
23	23	defendant's trial. The policy must require the attorney
24	24	representing the state to:
25	25	(1) implement a system to track the use of, and
26	26	benefits offered or provided in exchange for, testimony described
27	27	by this article; and
28	28	(2) promptly disclose information regarding the
29	29	testifying person as required by Article 39.14(h-1).
30	30	SECTION 2. Chapter 2, Code of Criminal Procedure, is
31	31	amended by adding Article 2.32 to read as follows:
32	32	Art. 2.32. ELECTRONIC RECORDING OF CUSTODIAL
33	33	INTERROGATIONS. (a) In this article:
34	34	(1) "Custodial interrogation" means any investigative
35	35	questioning, other than routine questions associated with booking,
36	36	by a peace officer during which:
37	37	(A) a reasonable person in the position of the
38	38	person being interrogated would consider himself or herself to be
39	39	in custody; and
40	40	(B) a question is asked that is reasonably likely
41	41	to elicit an incriminating response.
42	42	(2) "Electronic recording" means an audio or
43	43	audiovisual electronic recording that begins at the time the person
44	44	being interrogated enters the area of the place of detention in
45	45	which the custodial interrogation will take place and that
46	46	continues until the time the interrogation ceases.
47	47	(3) "Place of detention" means a police station or
48	48	other building that is a place of operation for a law enforcement
49	49	agency, including a municipal police department or county sheriff's
50	50	department, and is owned or operated by the law enforcement agency
51	51	for the purpose of detaining individuals in connection with the
52	52	suspected violation of a penal law. The term does not include a
53	53	courthouse.
54	54	(b) A law enforcement agency shall make an electronic
55	55	recording of any custodial interrogation that is of a person
56	56	suspected of committing or charged with the commission of a felony
57	57	offense and that the law enforcement agency conducts in a place of
58	58	detention.
59	59	(c) An electronic recording of a custodial interrogation
60	60	that complies with this article is exempt from public disclosure
61	61	except as provided by Section 552.108, Government Code.
62	62	SECTION 3. Article 38.075, Code of Criminal Procedure, is
63	63	amended by adding Subsection (c) to read as follows:
64	64	(c) Notwithstanding Rules 404 and 405, Texas Rules of
65	65	Evidence, evidence of other crimes, wrongs, or acts committed by,
66	66	and information described by Article 39.14(h-1) regarding, a
67	67	person who gives testimony described by Subsection (a) shall be
68	68	admitted for its bearing on relevant matters, including the
69	69	character of the person.
70	70	SECTION 4. Sections 3(a) and (c), Article 38.20, Code of
71	71	Criminal Procedure, are amended to read as follows:
72	72	(a) Each law enforcement agency shall adopt and [,]
73	73	implement [, and as necessary amend a detailed written policy
74	74	regarding the administration of photograph and live lineup
75	75	identification procedures in accordance with this article. A law
76	76	enforcement agency may adopt:
77	77	[(1)] the model policy adopted under Subsection (b)[;
78	78	or
79	79	[(2) the agency's own policy that, at a minimum,
80	80	conforms to the requirements of Subsection (c)].
81	81	(c) The model policy [or any other policy adopted by a law
82	82	enforcement agency] under Subsection (b) [(a)] must:
83	83	(1) be based on:
84	84	(A) credible field, academic, or laboratory
85	85	research on eyewitness memory;
86	86	(B) relevant policies, guidelines, and best
87	87	practices designed to reduce erroneous eyewitness identifications
88	88	and to enhance the reliability and objectivity of eyewitness
89	89	identifications; and
90	90	(C) other relevant information as appropriate;
91	91	and
92	92	(2) address the following topics:
93	93	(A) the selection of photograph and live lineup
94	94	filler photographs or participants;
95	95	(B) instructions given to a witness before
96	96	conducting a photograph or live lineup identification procedure;
97	97	(C) the documentation and preservation of
98	98	results of a photograph or live lineup identification procedure,
99	99	including the documentation of witness statements, regardless of
100	100	the outcome of the procedure;
101	101	(D) procedures for administering a photograph or
102	102	live lineup identification procedure to an illiterate person or a
103	103	person with limited English language proficiency;
104	104	(E) for a live lineup identification procedure,
105	105	if practicable, procedures for assigning an administrator who is
106	106	unaware of which member of the live lineup is the suspect in the
107	107	case or alternative procedures designed to prevent opportunities to
108	108	influence the witness;
109	109	(F) for a photograph identification procedure,
110	110	procedures for assigning an administrator who is capable of
111	111	administering a photograph array in a blind manner or in a manner
112	112	consistent with other proven or supported best practices designed
113	113	to prevent opportunities to influence the witness; and
114	114	(G) any other procedures or best practices
115	115	supported by credible research or commonly accepted as a means to
116	116	reduce erroneous eyewitness identifications and to enhance the
117	117	objectivity and reliability of eyewitness identifications.
118	118	SECTION 5. Section 4(b), Article 38.20, Code of Criminal
119	119	Procedure, is amended to read as follows:
120	120	(b) Not later than September 1 of each even-numbered year,
121	121	each law enforcement agency shall adopt the updated model policy as
122	122	modified by the institute under Subsection (a) in the preceding
123	123	year [review its policy adopted under this article and shall modify
124	124	that policy as appropriate].
125	125	SECTION 6. Section 5, Article 38.20, Code of Criminal
126	126	Procedure, is amended to read as follows:
127	127	Sec. 5. (a) Any evidence or expert testimony presented by
128	128	the state or the defendant on the subject of eyewitness
129	129	identification is admissible only subject to compliance with the
130	130	Texas Rules of Evidence. Except as provided by Subsection (c),
131	131	evidence [Evidence] of compliance with the model policy [or any
132	132	other policy] adopted under this article [or with the minimum
133	133	requirements of this article] is not a condition precedent to the
134	134	admissibility of an out-of-court eyewitness identification.
135	135	(b) Notwithstanding Article 38.23 as that article relates
136	136	to a violation of a state statute and except as provided by
137	137	Subsection (c), a failure to conduct a photograph or live lineup
138	138	identification procedure in substantial compliance with the model
139	139	policy [or any other policy] adopted under this article [or with the
140	140	minimum requirements of this article] does not bar the admission of
141	141	eyewitness identification testimony in the courts of this state.
142	142	(c) If a witness makes an in-court identification of the
143	143	accused, the eyewitness identification is admissible into evidence
144	144	against the accused only if the evidence is accompanied by:
145	145	(1) the details of any prior identification made of
146	146	the accused by the witness, including the manner in which that
147	147	identification procedure was conducted; and
148	148	(2) evidence showing the witness's confidence level as
149	149	described by the witness at the time of the prior identification.
150	150	SECTION 7. Section 1, Article 38.22, Code of Criminal
151	151	Procedure, is amended to read as follows:
152	152	Sec. 1. In this article:
153	153	(1) "Electronic recording" has the meaning assigned by
154	154	Article 2.32.
155	155	(2) "Written [, a written] statement" [of an accused]
156	156	means:
157	157	(A) [(1)] a statement made by the accused in the
158	158	accused's [his] own handwriting; or
159	159	(B) [(2)] a statement made in a language the
160	160	accused can read or understand that:
161	161	(i) [(A)] is signed by the accused; or
162	162	(ii) [(B)] bears the mark of the accused,
163	163	if the accused is unable to write and the mark is witnessed by a
164	164	person other than a peace officer.
165	165	SECTION 8. Sections 3(a) and (b), Article 38.22, Code of
166	166	Criminal Procedure, are amended to read as follows:
167	167	(a) Except as provided by Section 9, no oral, sign language,
168	168	or written statement made as a result of a custodial interrogation
169	169	of a person accused of a felony offense is admissible against the
170	170	accused in a criminal proceeding, and no [No] oral or sign language
171	171	statement made as a result of a custodial interrogation of a person
172	172	[of an] accused of any other offense is [made as a result of
173	173	custodial interrogation shall be] admissible against the accused in
174	174	a criminal proceeding, unless:
175	175	(1) an electronic recording [, which may include
176	176	motion picture, video tape, or other visual recording,] is made of
177	177	the custodial interrogation [statement];
178	178	(2) after being [prior to the statement but during the
179	179	recording the accused is] given the warning described by Section
180	180	2(a), [in Subsection (a) of Section 2 above and] the accused
181	181	knowingly, intelligently, and voluntarily waives any rights set out
182	182	in the warning;
183	183	(3) the recording device was capable of making an
184	184	accurate recording, the operator was competent, and the recording
185	185	is accurate and has not been altered;
186	186	(4) all voices on the recording are identified; and
187	187	(5) not later than the 20th day before the date of the
188	188	proceeding, the attorney representing the defendant is provided
189	189	with a true, complete, and accurate copy of all recordings of the
190	190	defendant made under this article.
191	191	(b) Every electronic recording of [any statement made by an
192	192	accused during] a custodial interrogation must be preserved until
193	193	such time as the defendant's conviction for any offense relating
194	194	thereto is final, all direct appeals therefrom are exhausted, or
195	195	the prosecution of such offenses is barred by law.
196	196	SECTION 9. Article 38.22, Code of Criminal Procedure, is
197	197	amended by adding Section 9 to read as follows:
198	198	Sec. 9. An oral, sign language, or written statement of an
199	199	accused made as a result of a custodial interrogation is admissible
200	200	without an electronic recording otherwise required by Section 3(a)
201	201	if the attorney introducing the statement shows good cause for the
202	202	lack of the recording. For purposes of this section, "good cause"
203	203	includes:
204	204	(1) the accused refused to respond to questioning or
205	205	cooperate in a custodial interrogation of which an electronic
206	206	recording was made, provided that:
207	207	(A) a contemporaneous recording of the refusal
208	208	was made; or
209	209	(B) the peace officer or agent of the law
210	210	enforcement agency conducting the interrogation attempted, in good
211	211	faith, to record the accused's refusal but the accused was
212	212	unwilling to have the refusal recorded, and the peace officer or
213	213	agent contemporaneously, in writing, documented the refusal;
214	214	(2) the statement was not made exclusively as the
215	215	result of a custodial interrogation, including a statement that was
216	216	made spontaneously by the accused and not in response to a question
217	217	by a peace officer;
218	218	(3) the peace officer or agent of the law enforcement
219	219	agency conducting the interrogation attempted, in good faith, to
220	220	record the interrogation but the recording equipment did not
221	221	function, the officer or agent inadvertently operated the equipment
222	222	incorrectly, or the equipment malfunctioned or stopped operating
223	223	without the knowledge of the officer or agent;
224	224	(4) exigent public safety concerns prevented or
225	225	rendered infeasible the making of an electronic recording of the
226	226	custodial interrogation; or
227	227	(5) the peace officer or agent of the law enforcement
228	228	agency conducting the interrogation reasonably believed at the time
229	229	the interrogation began that the accused interrogated was not taken
230	230	into custody for or being interrogated concerning the commission of
231	231	a felony offense.
232	232	SECTION 10. Article 39.14, Code of Criminal Procedure, is
233	233	amended by adding Subsection (h-1) to read as follows:
234	234	(h-1) In this subsection, "correctional facility" has the
235	235	meaning assigned by Section 1.07, Penal Code. Notwithstanding any
236	236	other provision of this article, if the state intends to use at a
237	237	defendant's trial testimony of a person to whom the defendant made a
238	238	statement against the defendant's interest while the person was
239	239	imprisoned or confined in the same correctional facility as the
240	240	defendant, the state shall disclose to the defendant:
241	241	(1) the person's complete criminal history, including
242	242	any charges that were dismissed or reduced as part of a plea
243	243	bargain;
244	244	(2) any grant, promise, or offer of immunity from
245	245	prosecution, reduction of sentence, or other leniency or special
246	246	treatment, given by the state in exchange for the person's
247	247	testimony;
248	248	(3) information concerning other criminal cases in
249	249	which the person has testified, or offered to testify, against a
250	250	defendant with whom the person was imprisoned or confined,
251	251	including any grant, promise, or offer as described by Subdivision
252	252	(2) given by the state in exchange for the testimony; and
253	253	(4) other information in the possession, custody, or
254	254	control of the state that is relevant to the person's credibility.
255	255	SECTION 11. Section 1701.253, Occupations Code, is amended
256	256	by adding Subsection (n) to read as follows:
257	257	(n) As part of the minimum curriculum requirements, the
258	258	commission shall establish a statewide comprehensive education and
259	259	training program on eyewitness identification, including the
260	260	variables that affect a witness's vision and memory, practices for
261	261	minimizing contamination, and effective eyewitness identification
262	262	protocols.
263	263	SECTION 12. STUDY REGARDING USE OF DRUG FIELD TEST KITS.
264	264	(a) The Texas Forensic Science Commission shall conduct a study
265	265	regarding the use of drug field test kits by law enforcement
266	266	agencies in this state. The commission shall:
267	267	(1) evaluate the quality, accuracy, and reliability of
268	268	drug field test kits;
269	269	(2) identify any common problems with drug field test
270	270	kits;
271	271	(3) evaluate the availability and adequacy of training
272	272	for law enforcement officers regarding the use of drug field test
273	273	kits and the interpretation of the test results; and
274	274	(4) develop legislative recommendations regarding the
275	275	use of drug field test kits by law enforcement agencies and
276	276	regarding related training for law enforcement officers.
277	277	(b) Not later than December 1, 2018, the Texas Forensic
278	278	Science Commission shall submit to the governor, the lieutenant
279	279	governor, and each member of the legislature a written report that
280	280	summarizes the results of the study conducted under this section
281	281	and includes any legislative recommendations.
282	282	SECTION 13. CRIME SCENE INVESTIGATION STUDY. (a) The Texas
283	283	Forensic Science Commission shall conduct a study regarding the
284	284	manner in which crime scene investigations are conducted in this
285	285	state. The commission shall:
286	286	(1) evaluate the standard procedures used in
287	287	processing a crime scene and evaluate the quality of crime scene
288	288	investigations;
289	289	(2) evaluate the availability and adequacy of the
290	290	training or continuing education provided to crime scene
291	291	investigators; and
292	292	(3) develop legislative recommendations regarding
293	293	improvements to crime scene investigation procedures and training.
294	294	(b) Not later than December 1, 2018, the Texas Forensic
295	295	Science Commission shall submit to the governor, the lieutenant
296	296	governor, and each member of the legislature a written report that
297	297	summarizes the results of the study conducted under this section
298	298	and includes any legislative recommendations.
299	299	SECTION 14. Not later than December 1, 2017, each attorney
300	300	representing the state, as defined by Article 2.023, Code of
301	301	Criminal Procedure, as added by this Act, shall adopt the written
302	302	policy required by that article.
303	303	SECTION 15. Article 2.32 and Section 9, Article 38.22, Code
304	304	of Criminal Procedure, as added by this Act, and Sections 1 and 3,
305	305	Article 38.22, Code of Criminal Procedure, as amended by this Act,
306	306	apply to the use of a statement made as a result of a custodial
307	307	interrogation that occurs on or after the effective date of this
308	308	Act, regardless of whether the criminal offense giving rise to that
309	309	interrogation is committed before, on, or after that date.
310	310	SECTION 16. Article 38.075(c), Code of Criminal Procedure,
311	311	as added by this Act, applies to the admissibility of evidence in a
312	312	criminal proceeding that commences on or after the effective date
313	313	of this Act. The admissibility of evidence in a criminal proceeding
314	314	that commences before the effective date of this Act is governed by
315	315	the law in effect on the date the proceeding commenced, and the
316	316	former law is continued in effect for that purpose.
317	317	SECTION 17. (a) Not later than October 1, 2017, each law
318	318	enforcement agency to which Article 38.20, Code of Criminal
319	319	Procedure, as amended by this Act, applies shall adopt the model
320	320	policy as required by that article.
321	321	(b) Sections 5(a) and (b), Article 38.20, Code of Criminal
322	322	Procedure, as amended by this Act, apply only to a photograph or
323	323	live lineup identification procedure conducted on or after January
324	324	1, 2018, regardless of whether the offense to which the procedure is
325	325	related was committed before, on, or after January 1, 2018.
326	326	(c) Section 5(c), Article 38.20, Code of Criminal
327	327	Procedure, as added by this Act, applies only to the trial of an
328	328	offense with respect to which a prior identification of the accused
329	329	occurred on or after January 1, 2018, regardless of whether the
330	330	offense that is the subject of the trial was committed before, on,
331	331	or after January 1, 2018.
332	332	SECTION 18. Article 39.14(h-1), Code of Criminal Procedure,
333	333	as added by this Act, applies to the prosecution of an offense
334	334	committed on or after the effective date of this Act. The
335	335	prosecution of an offense committed before the effective date of
336	336	this Act is governed by the law in effect on the date the offense was
337	337	committed, and the former law is continued in effect for that
338	338	purpose. For purposes of this section, an offense is committed
339	339	before the effective date of this Act if any element of the offense
340	340	occurs before the effective date.
341	341	SECTION 19. Not later than January 1, 2018, the Texas
342	342	Commission on Law Enforcement shall establish the eyewitness
343	343	identification education and training program as required by
344	344	Section 1701.253(n), Occupations Code, as added by this Act.
345	345	SECTION 20. This Act takes effect September 1, 2017.