If you or a loved one had the misfortune of being wrongly accused of a
crime, how would you want the criminal justice system to treat you or
your loved one? Would you want the accusation presumed to be true? Or
would you want it to be presumed not to be true? Would you want relaxed
evidentiary rules and summary proceedings that make it easier to convict
you? Or would you want stringent rules of evidence designed to assure
fairness at a trial, where the accuser would have the sole burden of proof,
subject to confrontation and scrutiny? Would you want a low burden of
proof, where the presumption of innocence was easily overcome? Or would
you want a high enough standard to ensure that innocent people do not
get wrongly convicted (such as beyond a reasonable doubt)? Presumably,
you would want all the protections that our Constitution provides for
an accused. Those protections are designed to protect freedom and liberty
and to prevent wrongful convictions.
At a certain point, we, as a country, must reconcile our growing appetite
for, and the acceptance of, the subrogation of an accused’s rights
in favor of the rights of an accuser. Intuitively appealing legislation
proclaiming to ostensibly minimize victim trauma and maximize court efficiency
is frequently proposed. Recently,
HB 465 and
SB 1328 have both been introduced at the behest of Florida’s State Attorneys
- and endorsed by the Florida Prosecuting Attorneys Association. These
bills prohibit depositions of victims or witnesses who are under 18, who
suffer intellectual disabilities, or who are the alleged victims of certain
enumerated
sexualor violent crimes (murder, sexual battery, lewd and lascivious offenses
under F.S. §800.04, human trafficking, kidnapping, domestic violence,
child abuse, and aggravated cyberstalking), except for upon a showing
of “good cause.”
Many proponents of these bills claim that the “good cause”
language contained in the bills allows for depositions to be taken when
appropriate. However, “good cause” language is similarly provided
in the context of the already existing laws prohibiting depositions in
misdemeanor cases. Florida Rule of Criminal Procedure 3.220 (h)(1)(D), states:
In determining whether to allow a deposition, the court should consider
the consequences to the defendant, the complexity of the issues involved,
the complexity of the witness’ testimony (e.g., experts), and the
other opportunities available to the defendant to discover the information
sought by deposition…
The current bills propose that:
-
[u]pon written motion and written findings that a deposition is necessary
to assist a trial, that the evidence sought is not reasonably available
by any other
means, and that the probative value of the testimony outweighs the potential
detriment to the person to be deposed…
Interestingly, despite the “good cause” language in 3.220
(h)(1)(D), depositions are rarely granted in misdemeanor cases. It is
a well-founded concern that the same result may occur in these serious
cases, should the legislation be enacted.
HB 465 and
SB 1328 should not be enacted for the following reasons:
1. The serious crimes enumerated in the proposed legislation inherently
involve extremely serious potential consequences to a defendant, complex
issues, and complex/expert testimony. As such, according to the “good
cause” language already contained in the law, “good cause”
for a deposition inherently exists in every such case. Unfortunately,
courts may be overly restrictive in finding “good cause” based
on the reality experienced relating to misdemeanor depositions.
2. Furthermore, in cases involving vulnerable witnesses, there are already
numerous safeguards and protections in place that address the stated concerns
of the legislation, while relaxing the standards of evidence and admissibility
that otherwise protect an accused. The opportunity to confront minor accusers/witnesses
is already very restricted and regulated. Here are a few examples of such
protections:
-
F.S § 914.16 Child abuse and sexual abuse of victims under age 16
or who have an intellectual disability; limits on interviews.—The chief judge of each judicial circuit, after consultation with
the state attorney and the public defender for the judicial circuit, the
appropriate chief law enforcement officer, and any other person deemed
appropriate by the chief judge, shall order reasonable limits on the number
of interviews which a victim of a violation of s.
794.011, s.
800.04, s.
827.03, or s.
847.0135(5) who is under 16 years of age or a victim of a violation of s.
794.011, s.
800.02, s.
800.03, or s.
825.102 who has an intellectual disability as defined in s.
393.063 must submit to for law enforcement or discovery purposes. To the extent
possible,
the order must protect the victim from the psychological damage of repeated
interrogations while preserving the rights of the public, the victim,
and the person charged with the violation.
-
Florida Rule of Criminal Procedure 3.220 (h)(4) - Depositions of Sensitive Witnesses. Depositions of children under the age of 18 shall be videotaped unless
otherwise ordered by the court. The court may order the videotaping of
a deposition or the taking of a deposition of a witness with fragile emotional
strength, or an intellectual disability as defined in section 393.063,
Florida Statutes, to be in the presence of the trial judge or a special
magistrate.
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F.S. §90.803(23) - HEARSAY EXCEPTION; STATEMENT OF CHILD VICTIM. —
(a) Unless the source of information or the method or circumstances by
which the statement is reported indicates a lack of trustworthiness, an
out-of-court statement made by a child victim with a physical, mental,
emotional, or developmental age of 16 or less describing any act of child
abuse or neglect, any act of sexual abuse against a child, the offense
of child abuse, the offense of aggravated child abuse, or any offense
involving an unlawful sexual act, contact, intrusion, or penetration performed
in the presence of, with, by, or on the declarant child, not otherwise
admissible, is admissible in evidence in any civil or criminal proceeding if:
1. The court finds in a hearing conducted outside the presence of the jury
that the time, content, and circumstances of the statement provide sufficient
safeguards of reliability. In making its determination, the court may
consider the mental and physical age and maturity of the child, the nature
and duration of the abuse or offense, the relationship of the child to
the offender, the reliability of the assertion, the reliability of the
child victim, and any other factor deemed appropriate; and
2. The child either:
a. Testifies; or
b. Is unavailable as a witness, provided that there is other corroborative
evidence of the abuse or offense. Unavailability shall include a finding
by the court that the child’s participation in the trial or proceeding
would result in a substantial likelihood of severe emotional or mental
harm, in addition to findings pursuant to s.
90.804(1).
(b) In a criminal action, the defendant shall be notified no later than
10 days before trial that a statement which qualifies as a hearsay exception
pursuant to this subsection will be offered as evidence at trial. The
notice shall include a written statement of the content of the child’s
statement, the time at which the statement was made, the circumstances
surrounding the statement which indicate its reliability, and such other
particulars as necessary to provide full disclosure of the statement.
(c) The court shall make specific findings of fact, on the record, as to
the basis for its ruling under this subsection.
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F.S. 90.404 (2)(b) - In a criminal case in which the defendant is charged with a crime involving
child molestation, evidence of the defendant’s commission of other
crimes, wrongs, or acts of child molestation is admissible and may be
considered for its bearing on any matter to which it is relevant.
3. The stated rationale for the proposed legislation is to spare a sensitive
witness the stress of reliving a traumatic event. However, those concerns
do not seem to be given much weight when the government is investigating
a case involving a sensitive witness. A sensitive witness, who may be
particularly vulnerable to suggestive and manipulative questioning, is
subjected to multiple rounds of rigorous questioning by parents/guardians,
law enforcement officers, first responders, medical personnel, investigators,
child protective personnel, forensic interviewers, victim advocates, counselors,
witness coordinators, and prosecutors. Given this reality, there seems
to be a bit of a double standard and disingenuous concerns being raised
only when the accused needs to talk to the witness.
Furthermore, one of the chief proponents of the legislation, 11th Circuit
State Attorney Katherine Fernandez Rundle, cites “neuroscience research”
that indicates reliving traumatic events can cause harm in the young.
In fact, there is abundant research supporting the premise that testifying
in an adversarial setting is stressful for adults and children. However,
prosecutors seem to have very little reservation about subjecting a sensitive
witness to the rigors of the adversarial process when deciding to zealously
prosecute a case. Perhaps greater weight should be given to concerns about
sensitive witnesses when prosecutors are deciding whether to prosecute
or whether to extend a reasonable plea offer. Instead, prosecutors prefer
to strip the rights of an accused to make it easier on sensitive witnesses.
Importantly, in a system that rightfully presumes innocence, let us not
forget that prohibiting depositions is simply making it easier for potentially
deceptive witnesses. Deceptive witnesses also exhibit stress when confronted
about their deception. Any adult who has ever confronted a child about
not telling the truth is familiar with the cues of dishonesty (protesting,
deflecting, complaining, getting upset, squirming, getting nervous…)
that a child may exhibit when challenged about a false or exaggerated
story. These signs of stress should not be confused with the type of stress
associated with recounting actual trauma.
4. Finally, it is well known to anyone who has litigated a criminal defense
matter that the strengths and weaknesses of a case are often realized
during a deposition. Being able to assess the true strengths and weaknesses
of a case allows both sides to make an informed decision as to an appropriate
resolution of the case before the time and money is spent figuring that
out during a jury trial. If a government case is confirmed to be strong,
the defendant is motivated to accept a plea offer without further litigation.
If a case is exposed to be weak, a prosecutor may be compelled to drop
the case or offer a better plea offer. Either way, a deposition leads
to a more efficient and fairer outcome, reducing the overall stress on
an alleged victim (who may otherwise have had to testify at several hearings
and a trial).
In conclusion,
HB 465 and
SB 1328 should not be enacted, as they will detrimentally affect an accused person’s
right to due process without providing any clear benefit. When balancing
the rights of an accused against the right of the government to streamline
the adversarial process to minimize stress on an accuser, we must consider
whether there are better ways to protect alleged victims, without stripping
away the protections afforded to each one of us.