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 sexual or 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.
- 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.
- 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.