Texas Code of Criminal Procedure - Article 38.071. Testimony Of Child Who Is Victim Of Offense
Legal Research Home >
Texas Lawyer > Code of Criminal Procedure > Texas Code of Criminal Procedure - Article 38.071. Testimony Of Child Who Is Victim Of Offense
Art. 38.071. TESTIMONY OF CHILD WHO IS VICTIM OF
OFFENSE. Sec. 1. This article applies only to a hearing or
proceeding in which the court determines that a child younger than
13 years of age would be unavailable to testify in the presence of
the defendant about an offense defined by any of the following
sections of the Penal Code:
(1) Section 19.02 (Murder);
(2) Section 19.03 (Capital Murder);
(3) Section 19.04 (Manslaughter);
(4) Section 20.04 (Aggravated Kidnapping);
(5) Section 21.11 (Indecency with a Child);
(6) Section 22.011 (Sexual Assault);
(7) Section 22.02 (Aggravated Assault);
(8) Section 22.021 (Aggravated Sexual Assault);
(9) Section 22.04(e) (Injury to a Child, Elderly
Individual, or Disabled Individual);
(10) Section 22.04(f) (Injury to a Child, Elderly
Individual, or Disabled Individual), if the conduct is committed
intentionally or knowingly;
(11) Section 25.02 (Prohibited Sexual Conduct);
(12) Section 29.03 (Aggravated Robbery); or
(13) Section 43.25 (Sexual Performance by a Child).
Sec. 2. (a) The recording of an oral statement of the child
made before the indictment is returned or the complaint has been
filed is admissible into evidence if the court makes a
determination that the factual issues of identity or actual
occurrence were fully and fairly inquired into in a detached manner
by a neutral individual experienced in child abuse cases that seeks
to find the truth of the matter.
(b) If a recording is made under Subsection (a) of this
section and after an indictment is returned or a complaint has been
filed, by motion of the attorney representing the state or the
attorney representing the defendant and on the approval of the
court, both attorneys may propound written interrogatories that
shall be presented by the same neutral individual who made the
initial inquiries, if possible, and recorded under the same or
similar circumstances of the original recording with the time and
date of the inquiry clearly indicated in the recording.
(c) A recording made under Subsection (a) of this section is
not admissible into evidence unless a recording made under
Subsection (b) is admitted at the same time if a recording under
Subsection (b) was requested prior to the time of the hearing or
proceeding.
Sec. 3. (a) On its own motion or on the motion of the attorney
representing the state or the attorney representing the defendant,
the court may order that the testimony of the child be taken in a
room other than the courtroom and be televised by closed circuit
equipment in the courtroom to be viewed by the court and the finder
of fact. To the extent practicable, only the judge, the court
reporter, the attorneys for the defendant and for the state,
persons necessary to operate the equipment, and any person whose
presence would contribute to the welfare and well-being of the
child may be present in the room with the child during his
testimony. Only the attorneys and the judge may question the child.
To the extent practicable, the persons necessary to operate the
equipment shall be confined to an adjacent room or behind a screen
or mirror that permits them to see and hear the child during his
testimony, but does not permit the child to see or hear them. The
court shall permit the defendant to observe and hear the testimony
of the child and to communicate contemporaneously with his attorney
during periods of recess or by audio contact, but the court shall
attempt to ensure that the child cannot hear or see the defendant.
The court shall permit the attorney for the defendant adequate
opportunity to confer with the defendant during cross-examination
of the child. On application of the attorney for the defendant, the
court may recess the proceeding before or during cross-examination
of the child for a reasonable time to allow the attorney for the
defendant to confer with defendant.
(b) The court may set any other conditions and limitations
on the taking of the testimony that it finds just and appropriate,
taking into consideration the interests of the child, the rights of
the defendant, and any other relevant factors.
Sec. 4. (a) After an indictment has been returned or a
complaint filed, on its own motion or on the motion of the attorney
representing the state or the attorney representing the defendant,
the court may order that the testimony of the child be taken outside
the courtroom and be recorded for showing in the courtroom before
the court and the finder of fact. To the extent practicable, only
those persons permitted to be present at the taking of testimony
under Section 3 of this article may be present during the taking of
the child's testimony, and the persons operating the equipment
shall be confined from the child's sight and hearing as provided by
Section 3. The court shall permit the defendant to observe and hear
the testimony of the child and to communicate contemporaneously
with his attorney during periods of recess or by audio contact but
shall attempt to ensure that the child cannot hear or see the
defendant.
(b) The court may set any other conditions and limitations
on the taking of the testimony that it finds just and appropriate,
taking into consideration the interests of the child, the rights of
the defendant, and any other relevant factors. The court shall also
ensure that:
(1) the recording is both visual and aural and is recorded
on film or videotape or by other electronic means;
(2) the recording equipment was capable of making an
accurate recording, the operator was competent, the quality of the
recording is sufficient to allow the court and the finder of fact to
assess the demeanor of the child and the interviewer, and the
recording is accurate and is not altered;
(3) each voice on the recording is identified;
(4) the defendant, the attorneys for each party, and the
expert witnesses for each party are afforded an opportunity to view
the recording before it is shown in the courtroom;
(5) before giving his testimony, the child was placed under
oath or was otherwise admonished in a manner appropriate to the
child's age and maturity to testify truthfully;
(6) the court finds from the recording or through an in
camera examination of the child that the child was competent to
testify at the time the recording was made; and
(7) only one continuous recording of the child was made or
the necessity for pauses in the recordings or for multiple
recordings is established at the hearing or proceeding.
(c) After a complaint has been filed or an indictment
returned charging the defendant, on the motion of the attorney
representing the state, the court may order that the deposition of
the child be taken outside of the courtroom in the same manner as a
deposition may be taken in a civil matter. A deposition taken under
this subsection is admissible into evidence.
Sec. 5. (a) On the motion of the attorney representing the
state or the attorney representing the defendant and on a finding by
the court that the following requirements have been substantially
satisfied, the recording of an oral statement of the child made
before a complaint has been filed or an indictment returned is
admissible into evidence if:
(1) no attorney or peace officer was present when the
statement was made;
(2) the recording is both visual and aural and is recorded
on film or videotape or by other electronic means;
(3) the recording equipment was capable of making an
accurate recording, the operator of the equipment was competent,
the quality of the recording is sufficient to allow the court and
the finder of fact to assess the demeanor of the child and the
interviewer, and the recording is accurate and has not been
altered;
(4) the statement was not made in response to questioning
calculated to lead the child to make a particular statement;
(5) every voice on the recording is identified;
(6) the person conducting the interview of the child in the
recording is expert in the handling, treatment, and investigation
of child abuse cases, present at the hearing or proceeding, called
by the state, and subject to cross-examination;
(7) immediately after a complaint was filed or an indictment
returned, the attorney representing the state notified the court,
the defendant, and the attorney representing the defendant of the
existence of the recording;
(8) the defendant, the attorney for the defendant, and the
expert witnesses for the defendant were afforded an opportunity to
view the recording before it is offered into evidence and, if a
proceeding was requested as provided by Subsection (b) of this
section, in a proceeding conducted before a district court judge
but outside the presence of the jury were afforded an opportunity to
cross-examine the child as provided by Subsection (b) of this
section from any time immediately following the filing of the
complaint or the returning of an indictment charging the defendant
until the date the hearing or proceeding begins;
(9) the recording of the cross-examination, if there is one,
is admissible under Subsection (b) of this section;
(10) before giving his testimony, the child was placed under
oath or was otherwise admonished in a manner appropriate to the
child's age and maturity to testify truthfully;
(11) the court finds from the recording or through an in
camera examination of the child that the child was competent to
testify at the time that the recording was made; and
(12) only one continuous recording of the child was made or
the necessity for pauses in the recordings or for multiple
recordings has been established at the hearing or proceeding.
(b) On the motion of the attorney representing the
defendant, a district court may order that the cross-examination of
the child be taken and be recorded before the judge of that court at
any time until a recording made in accordance with Subsection (a) of
this section has been introduced into evidence at the hearing or
proceeding. On a finding by the court that the following
requirements were satisfied, the recording of the
cross-examination of the child is admissible into evidence and
shall be viewed by the finder of fact only after the finder of fact
has viewed the recording authorized by Subsection (a) of this
section if:
(1) the recording is both visual and aural and is recorded
on film or videotape or by other electronic means;
(2) the recording equipment was capable of making an
accurate recording, the operator of the equipment was competent,
the quality of the recording is sufficient to allow the court and
the finder of fact to assess the demeanor of the child and the
attorney representing the defendant, and the recording is accurate
and has not been altered;
(3) every voice on the recording is identified;
(4) the defendant, the attorney representing the defendant,
the attorney representing the state, and the expert witnesses for
the defendant and the state were afforded an opportunity to view the
recording before the hearing or proceeding began;
(5) the child was placed under oath before the
cross-examination began or was otherwise admonished in a manner
appropriate to the child's age and maturity to testify truthfully;
and
(6) only one continuous recording of the child was made or
the necessity for pauses in the recordings or for multiple
recordings was established at the hearing or proceeding.
(c) During cross-examination under Subsection (b) of this
section, to the extent practicable, only a district court judge,
the attorney representing the defendant, the attorney representing
the state, persons necessary to operate the equipment, and any
other person whose presence would contribute to the welfare and
well-being of the child may be present in the room with the child
during his testimony. Only the attorneys and the judge may question
the child. To the extent practicable, the persons operating the
equipment shall be confined to an adjacent room or behind a screen
or mirror that permits them to see and hear the child during his
testimony but does not permit the child to see or hear them. The
court shall permit the defendant to observe and hear the testimony
of the child and to communicate contemporaneously with his attorney
during periods of recess or by audio contact, but shall attempt to
ensure that the child cannot hear or see the defendant.
(d) Under Subsection (b) of this section the district court
may set any other conditions and limitations on the taking of the
cross-examination of a child that it finds just and appropriate,
taking into consideration the interests of the child, the rights of
the defendant, and any other relevant factors.
Sec. 6. If the court orders the testimony of a child to be
taken under Section 3 or 4 of this article or if the court finds the
testimony of the child taken under Section 2 or 5 of this article is
admissible into evidence, the child may not be required to testify
in court at the proceeding for which the testimony was taken, unless
the court finds there is good cause.
Sec. 7. In making any determination of good cause under this
article, the court shall consider the rights of the defendant, the
interests of the child, the relationship of the defendant to the
child, the character and duration of the alleged offense, any court
finding related to the availability of the child to testify, the
age, maturity, and emotional stability of the child, the time
elapsed since the alleged offense, and any other relevant factors.
Sec. 8. (a) In making a determination of unavailability under
this article, the court shall consider relevant factors including
the relationship of the defendant to the child, the character and
duration of the alleged offense, the age, maturity, and emotional
stability of the child, and the time elapsed since the alleged
offense, and whether the child is more likely than not to be
unavailable to testify because:
(1) of emotional or physical causes, including the
confrontation with the defendant; or
(2) the child would suffer undue psychological or physical
harm through his involvement at the hearing or proceeding.
(b) A determination of unavailability under this article
can be made after an earlier determination of availability. A
determination of availability under this article can be made after
an earlier determination of unavailability.
Sec. 9. If the court finds the testimony taken under Section 2
or 5 of this article is admissible into evidence or if the court
orders the testimony to be taken under Section 3 or 4 of this
article and if the identity of the perpetrator is a contested issue,
the child additionally must make an in-person identification of the
defendant either at or before the hearing or proceeding.
Sec. 10. In ordering a child to testify under this article,
the court shall take all reasonable steps necessary and available
to minimize undue psychological trauma to the child and to minimize
the emotional and physical stress to the child caused by relevant
factors, including the confrontation with the defendant and the
ordinary participation of the witness in the courtroom.
Sec. 11. In a proceeding under Section 2, 3, or 4 or
Subsection (b) of Section 5 of this article, if the defendant is not
represented by counsel and the court finds that the defendant is not
able to obtain counsel for the purposes of the proceeding, the court
shall appoint counsel to represent the defendant at the proceeding.
Sec. 12. In this article, "cross-examination" has the same
meaning as in other legal proceedings in the state.
Sec. 13. The attorney representing the state shall determine
whether to use the procedure provided in Section 2 of this article
or the procedure provided in Section 5 of this article.
Added by Acts 1983, 68th Leg., p. 3828, ch. 599, Sec. 1, eff. Aug.
29, 1983. Amended by Acts 1987, 70th Leg., ch. 998, Sec. 1, eff.
Aug. 31, 1987; Acts 1987, 70th Leg., 2nd C.S., ch. 55, Sec. 1, eff.
Oct. 20, 1987; Acts 1991, 72nd Leg., ch. 266, Sec. 1, eff. Sept. 1,
1991; Acts 1995, 74th Leg., ch. 76, Sec. 14.24, eff. Sept. 1, 1995;
Acts 2001, 77th Leg., ch. 338, Sec. 1 to 8, eff. Sept. 1, 2001.
Article: 37.13 37.14 38.01 38.03 38.04 38.05 38.07 38.071 38.072 38.073 38.08 38.10 38.101 38.12 38.14
Last modified: August 10, 2007
|
