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A BILL TO BE ENTITLED
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AN ACT
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relating to electronically recording certain interrogations and |
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the admissibility of certain statements made by a juvenile or a |
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criminal defendant. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Chapter 2, Code of Criminal Procedure, is |
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amended by adding Article 2.31 to read as follows: |
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Art. 2.31. ELECTRONIC RECORDING OF INTERROGATIONS. (a) |
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Each law enforcement agency in this state shall provide training |
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concerning the technological aspects of electronically recording |
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interrogations to peace officers and other employees of the law |
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enforcement agency who interrogate criminal defendants or |
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suspects, including juveniles. |
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(b) The Department of Public Safety shall adopt rules for |
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providing funds or electronic recording equipment to law |
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enforcement agencies in this state for the purpose of recording |
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interrogations of criminal defendants or suspects, including |
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juveniles. |
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SECTION 2. Section 2, Article 38.22, Code of Criminal |
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Procedure, is amended to read as follows: |
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Sec. 2. (a) No written statement made by an accused as a |
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result of custodial interrogation is admissible as evidence against |
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the accused [him] in any criminal proceeding unless: |
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(1) it is shown on the face of the statement that: |
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(A) [(a)] the accused, prior to making the |
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statement, either received from a magistrate the warning provided |
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in Article 15.17 of this code or received from the person to whom |
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the statement is made a warning that: |
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(i) the accused [(1) he] has the right to |
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remain silent and not make any statement at all and that any |
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statement the accused [he] makes may be used against the accused |
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[him] at [his] trial; |
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(ii) [(2)] any statement the accused [he] |
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makes may be used as evidence against the accused [him] in court; |
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(iii) the accused [(3) he] has the right to |
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have a lawyer present to advise the accused [him] prior to and |
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during any questioning; |
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(iv) [(4)] if the accused [he] is unable to |
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employ a lawyer, the accused [he] has the right to have a lawyer |
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appointed to advise the accused [him] prior to and during any |
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questioning; and |
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(v) the accused [(5) he] has the right to |
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terminate the interview at any time; and |
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(B) [(b)] the accused, prior to and during the |
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making of the statement, knowingly, intelligently, and voluntarily |
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waived the rights set out in the warning prescribed by Paragraph |
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(A); and |
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(2) in the case of a criminal proceeding in which the |
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accused is charged with a felony, an electronic recording that |
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complies with the requirements of Section 3(a) is made of the |
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custodial interrogation resulting in the statement [Subsection (a)
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of this section]. |
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(b) Every electronic recording of a custodial |
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interrogation, if any, resulting in a written statement must be |
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preserved until such time as: |
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(1) the defendant's conviction for any offense |
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relating to the statement is final, all direct appeals of the case |
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are exhausted, and the time to file a petition for a writ of habeas |
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corpus has expired; or |
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(2) the prosecution of the offense is barred by law. |
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(c) Notwithstanding Subsection (a)(2), a written statement |
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made by an accused as a result of a custodial interrogation is |
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admissible as evidence against the accused in a criminal proceeding |
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if the requirements of Subsection (a)(1) are satisfied with respect |
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to each portion of the written statement that is to be used as |
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evidence. This subsection expires September 1, 2012. |
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SECTION 3. Section 3, Article 38.22, Code of Criminal |
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Procedure, is amended by amending Subsections (a) and (b) and |
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adding Subsection (f) to read as follows: |
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(a) No oral or sign language statement of an accused made as |
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a result of custodial interrogation is [shall be] admissible |
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against the accused in a criminal proceeding unless: |
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(1) an electronic recording, which may include motion |
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picture, video tape, or other visual recording, is made of: |
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(A) the statement; and |
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(B) in the case of a criminal proceeding in which |
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the accused is charged with a felony, the custodial interrogation |
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resulting in the statement; |
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(2) prior to the statement but during the recording |
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the accused is given the warning in [Subsection (a) of] Section 2(a) |
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[2 above] and the accused knowingly, intelligently, and voluntarily |
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waives any rights set out in the warning; |
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(3) the recording device was capable of making an |
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accurate recording, the operator was competent, and the recording |
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is substantially accurate and has not been intentionally altered; |
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(4) all voices on the recording are identified; and |
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(5) not later than the 20th day before the date of the |
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proceeding, the attorney representing the defendant is provided |
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with a true, complete, and accurate copy of all recordings of the |
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defendant made under this article. |
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(b) Every electronic recording of a custodial interrogation |
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resulting in an oral or sign language statement, if any, and any |
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statement made by an accused during a custodial interrogation must |
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be preserved until such time as: |
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(1) the defendant's conviction for any offense |
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relating to the statement [thereto] is final, all direct appeals of |
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the case [therefrom] are exhausted, and the time to file a petition |
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requesting a writ of habeas corpus has expired; or |
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(2) the prosecution of the offense [such offenses] is |
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barred by law. |
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(f) Notwithstanding the requirement of Subsection (a)(1)(B) |
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that in felony cases a recording be made of the custodial |
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interrogation resulting in the statement, an oral or sign language |
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statement made by an accused as a result of a custodial |
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interrogation is admissible as evidence against the accused in a |
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criminal proceeding if the requirements of Subsection (a) are |
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otherwise satisfied with respect to each portion of the oral or sign |
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language statement that is to be used as evidence. This subsection |
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expires September 1, 2012. |
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SECTION 4. Article 38.22, Code of Criminal Procedure, is |
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amended by adding Section 9 to read as follows: |
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Sec. 9. A recording of a custodial interrogation made under |
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Section 2(a)(2) or 3(a) is exempt from required public disclosure |
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under Chapter 552, Government Code. |
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SECTION 5. Section 51.095, Family Code, is amended by |
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amending Subsections (a), (c), and (f) and adding Subsections (g), |
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(h), and (i) to read as follows: |
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(a) Notwithstanding Section 51.09, the statement of a child |
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is admissible in evidence in any future proceeding concerning the |
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matter about which the statement was given if: |
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(1) the statement is made in writing under a |
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circumstance described by Subsection (d) and: |
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(A) the statement shows that the child has at |
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some time before the making of the statement received from a |
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magistrate a warning that: |
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(i) the child may remain silent and not make |
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any statement at all and that any statement that the child makes may |
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be used in evidence against the child; |
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(ii) the child has the right to have an |
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attorney present to advise the child either prior to any |
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questioning or during the questioning; |
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(iii) if the child is unable to employ an |
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attorney, the child has the right to have an attorney appointed to |
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counsel with the child before or during any interviews with peace |
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officers or attorneys representing the state; and |
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(iv) the child has the right to terminate |
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the interview at any time; |
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(B) and: |
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(i) the statement must be signed in the |
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presence of a magistrate by the child with no law enforcement |
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officer or prosecuting attorney present, except that a magistrate |
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may require a bailiff or a law enforcement officer if a bailiff is |
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not available to be present if the magistrate determines that the |
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presence of the bailiff or law enforcement officer is necessary for |
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the personal safety of the magistrate or other court personnel, |
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provided that the bailiff or law enforcement officer may not carry a |
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weapon in the presence of the child; and |
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(ii) the magistrate must be fully convinced |
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that the child understands the nature and contents of the statement |
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and that the child is signing the same voluntarily, and if a |
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statement is taken, the magistrate must sign a written statement |
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verifying the foregoing requisites have been met; |
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(C) the child knowingly, intelligently, and |
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voluntarily waives these rights before and during the making of the |
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statement and signs the statement in the presence of a magistrate; |
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[and] |
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(D) the magistrate certifies that the magistrate |
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has had the opportunity to view any recording made under Paragraph |
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(E), has examined the child independent of any law enforcement |
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officer or prosecuting attorney, except as required to ensure the |
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personal safety of the magistrate or other court personnel, and has |
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determined that the child understands the nature and contents of |
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the statement and has knowingly, intelligently, and voluntarily |
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waived these rights; and |
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(E) in the case of a proceeding in which it is |
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alleged that the child engaged in conduct violating a penal law of |
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the grade of felony, the interrogation, if any, of the child |
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resulting in the statement is recorded by an electronic recording |
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device, including a device that records images, and: |
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(i) the recording device is capable of |
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making an accurate recording, the operator of the device is |
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competent to use the device, the recording is substantially |
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accurate, and the recording has not been intentionally altered; |
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(ii) each voice on the recording is |
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identified; and |
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(iii) not later than the 20th day before the |
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date of the proceeding, the attorney representing the child is |
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given a complete and accurate copy of each recording of the child |
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made under this subdivision; |
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(2) the statement is made orally and the child makes a |
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statement of facts or circumstances that are found to be true and |
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tend to establish the child's guilt, such as the finding of secreted |
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or stolen property, or the instrument with which the child states |
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the offense was committed; |
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(3) the statement was res gestae of the delinquent |
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conduct or the conduct indicating a need for supervision or of the |
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arrest; |
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(4) the statement is made: |
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(A) in open court at the child's adjudication |
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hearing; |
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(B) before a grand jury considering a petition, |
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under Section 53.045, that the child engaged in delinquent conduct; |
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or |
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(C) at a preliminary hearing concerning the child |
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held in compliance with this code, other than at a detention hearing |
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under Section 54.01; or |
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(5) subject to Subsection (f), the statement is made |
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orally under a circumstance described by Subsection (d) and the |
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statement and, in the case of a proceeding in which it is alleged |
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that the child engaged in conduct violating a penal law of the grade |
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of felony, the interrogation, if any, of the child resulting in the |
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statement are [is] recorded by an electronic recording device, |
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including a device that records images, and: |
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(A) before making the statement, the child is |
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given the warning described by Subdivision (1)(A) by a magistrate, |
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the warning is a part of the recording, and the child knowingly, |
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intelligently, and voluntarily waives each right stated in the |
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warning; |
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(B) the recording device is capable of making an |
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accurate recording, the operator of the device is competent to use |
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the device, the recording is substantially accurate, and the |
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recording has not been intentionally altered; |
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(C) each voice on the recording is identified; |
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and |
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(D) not later than the 20th day before the date of |
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the proceeding, the attorney representing the child is given a |
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complete and accurate copy of each recording of the child made under |
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this subdivision. |
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(c) An electronic recording [of a child's statement] made |
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under Subsection (a)(1) or (a)(5) shall be preserved until all |
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juvenile or criminal matters relating to any conduct referred to in |
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the recording [statement] are final, including the exhaustion of |
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all appeals, or barred from prosecution. |
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(f) A magistrate who provides the warnings required by |
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Subsection (a)(5) for a recorded oral statement may, at the time the |
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warnings are provided, request by speaking on the recording that |
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the officer return [the child and the recording] to the magistrate |
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at the conclusion of the process of questioning the child and the |
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recording and, in the case of a proceeding in which it is alleged |
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that the child engaged in conduct violating a penal law of the grade |
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of felony, any recording of any other interrogation of the child |
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resulting in the oral statement being recorded. The magistrate may |
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then view the recording or recordings with the child or have the |
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child view the recording or recordings to enable the magistrate to |
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determine whether the child's oral statements were given |
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voluntarily. The magistrate's determination of voluntariness |
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shall be reduced to writing and signed and dated by the magistrate. |
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If a magistrate uses the procedure described by this subsection, a |
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child's oral statement is not admissible unless the magistrate |
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determines that the statement was given voluntarily. |
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(g) A recording of an interrogation made under Subsection |
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(a)(1) or (a)(5) is exempt from required public disclosure under |
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Chapter 552, Government Code. |
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(h) Notwithstanding the requirements of Subsections |
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(a)(1)(E) and (a)(5) that a recording be made of the interrogation |
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resulting in the statement, a statement that is made in writing or |
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made orally under a circumstance described by Subsection (d) is |
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admissible in any future proceeding concerning the matter about |
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which the statement was given if: |
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(1) concerning a statement made in writing, the |
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requirements of Subsections (a)(1)(A)-(D) are satisfied with |
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respect to each portion of the statement that is to be used as |
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evidence; or |
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(2) concerning a statement made orally, the |
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requirements of Subsection (a)(5) are otherwise satisfied with |
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respect to each portion of the statement that is to be used as |
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evidence. |
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(i) Subsection (h) and this subsection expire September 1, |
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2012. |
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SECTION 6. The Department of Public Safety shall begin |
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adopting rules under Article 2.31(b), Code of Criminal Procedure, |
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as added by this Act, not later than March 1, 2010. |
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SECTION 7. Article 38.22, Code of Criminal Procedure, as |
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amended by this Act, and Section 51.095, Family Code, as amended by |
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this Act, apply to the admissibility of a written, oral, or sign |
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language statement that is made on or after the effective date of |
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this Act. A written, oral, or sign language statement that is made |
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before the effective date of this Act is governed by the law in |
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effect at the time that the statement was made, and that law is |
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continued in effect for that purpose. |
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SECTION 8. This Act takes effect September 1, 2009. |