I'm hoping better minds than mine have considered this new language and can help me out, I'm finding this section a little unclear.
It seems if you take the plain meaning, the requirement that a magistrate's finding of voluntariness of a child's statement be reduced to writing is only triggered if the magistrate, on the recording, requests that the officer return the juvenile and the recording to the magistrate post-questioning for a subsequent determination of voluntariness.
In other words, it seems to leave it to the judge's discretion whether a post-questioning determination of voluntariness of the statement is necessary at all.
However, I heard a speaker say in a leg update that the post-questioning determination is required, in writing, even if the juvenile consents to questioning on the recording prior to being questioned. Plus, section 5, which appears to govern procedures for taking recorded statements, begins with, "subject to subsection f"
Sooo, anyone have a definitive answer on this?
Thanks in advance.
Do a noncustodial interview and avoid the entire statute.
I believe that the Magistrate is required to determine that the custodial statement is voluntary. TFC 51.095(a)(1)(B)(ii). http://www.juvenilelaw.org/Articles/2006/Annual/GarzaPolice.pdf at 24
I think all 51.095(f) says is that the magistrate may ask that -- where a confession is electronically recorded -- the magistrate may insist that the tape be returned to the magistrate to listen to it (or view it) with the child.
Thanks, David, that was a good paper. It didn't have any case cites on this section, and my search didn't turn up any, so I guess it's recemt enough it hasn't been tested yet... Now for the awkward task of advising the presenter that he seems to have gotten it wrong.
So your argument is that the voluntariness determination required by 51.095(a)(1) applies only to *written* statements. I guess you may be right, 51.095(a)(5) doesn't seem to have the requirement that the magistrate determine that the statement is voluntary. See In re R.R.G., No. 08-01-00434-CV, 2002 WL 1397149 at *3(Tex.App.-El Paso June 27, 2002, no pet.) ("R.G.'s statement was an oral statement and was therefore not covered by section 51.095(a)(1)(A)(iii)")
http://www.juvenilelaw.org/Articles/JuvenileConfessions.pdf at 11-12
Isn't this mostly a question of what the Legislature required when they provided for the admission of oral statements in 1997 in 51.095(a)(5)? http://www.capitol.state.tx.us/BillLookup/Text.aspx?LegSess=75R&Bill=HB1550
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