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A bill to be entitled

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An act relating to the admissibility of statements of a

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criminal defendant in felony cases; amending s. 90.803,

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F.S.; requiring that hearsay statements made during

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certain custodial interrogations comply with specified

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requirements in order to be admissible; providing

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definitions; describing circumstances in which an oral,

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written, or sign-language statement made by an interrogee

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during a custodial interrogation is presumed inadmissible

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as evidence against such person; describing circumstances

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in which the prosecution may rebut such presumption;

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describing circumstances in which law enforcement officers

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may have good cause not to electronically record all or

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part of an interrogation; providing for the admissibility

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of certain statements of an interrogee when made in

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certain proceedings or when obtained by federal officers

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or officers from other jurisdictions; providing for the

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preservation of electronic recordings; providing for

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admissibility of certain statements of an interrogee;

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amending s. 90.804, F.S.; requiring that for a hearsay

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statement against interest made during certain custodial

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interrogations to be admissible when the declarant is

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unavailable specified requirements must have been complied

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with; providing a finding of important state interest;

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specifying the purpose of the act; providing an effective

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date.

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Be It Enacted by the Legislature of the State of Florida:

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     Section 1.  Subsection (18) of section 90.803, Florida

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Statutes, is amended to read:

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     90.803  Hearsay exceptions; availability of declarant

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immaterial.--The provision of s. 90.802 to the contrary

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notwithstanding, the following are not inadmissible as evidence,

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even though the declarant is available as a witness:

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     (18)  ADMISSIONS.--A statement that is offered against a

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party and is:

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     (a)  The party's own statement in either an individual or a

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representative capacity;

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     (b)  A statement of which the party has manifested an

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adoption or belief in its truth;

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     (c)  A statement by a person specifically authorized by the

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party to make a statement concerning the subject;

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     (d)  A statement by the party's agent or servant concerning

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a matter within the scope of the agency or employment thereof,

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made during the existence of the relationship; or

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     (e)  A statement by a person who was a coconspirator of the

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party during the course, and in furtherance, of the conspiracy.

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Upon request of counsel, the court shall instruct the jury that

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the conspiracy itself and each member's participation in it must

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be established by independent evidence, either before the

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introduction of any evidence or before evidence is admitted under

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this paragraph; or.

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     (f) The party's own statement that is the result of a

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custodial interrogation and the interrogation, if required to do

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so, complied with this paragraph.

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     1. As used in this paragraph, the term:

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     a. "Custodial interrogation" or "interrogation" means

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questioning of an interrogee in circumstances in which a

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reasonable person placed in the same position would believe that

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his or her freedom of action was curtailed to a degree associated

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with actual arrest.

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     b. "Electronic recording" means a true, complete, and

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accurate reproduction of a custodial interrogation. An electronic

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recording may be created by motion picture, videotape, audiotape,

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or digital or other media.

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     c. "Interrogation facility" means a law enforcement

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facility, correctional facility, community correctional center,

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detention facility, law enforcement vehicle, courthouse, or other

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secure environment.

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     d. "Interrogee" means a person who, at the time of the

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interrogation and concerning any topic of the interrogation, is:

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     (I) Charged with a felony; or

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     (II) Suspected by those conducting the interrogation of

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involvement in the felony.

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     e. "Involvement" means participation in a crime as a

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principal or an accessory.

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     2. An oral, written, or sign-language statement made by an

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interrogee during a custodial interrogation shall be inadmissible

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as evidence against such person in a criminal proceeding unless

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all of the following are complied with:

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     a. The interrogation is reproduced in its entirety by means

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of an electronic recording.

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     b. Immediately prior to the commencement of the

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interrogation, and as part of the electronic recording, the

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interrogee is given all constitutionally required warnings and

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the interrogee knowingly, intelligently, and voluntarily waives

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any rights set out in the warnings that would, absent such

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waiver, otherwise preclude the admission of the statement.

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     c. The electronic recording device was capable of making a

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true, complete, and accurate recording of the interrogation, the

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operator of such device was competent, and the electronic

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recording has not been altered.

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     d. All persons recorded on the electronic recording who are

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material to the custodial interrogation are identified on the

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electronic recording.

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     e. During discovery pursuant to Rule 3.220, Florida Rules

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of Criminal Procedure, but in no circumstances later than the

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20th day before the date of the proceeding in which the

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prosecution intends to offer the statement, the attorney

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representing an interrogee is provided with true, complete, and

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accurate copies of all electronic recordings of the interrogee

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that are made pursuant to this paragraph.

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     3.a. In the absence of a true, complete, and accurate

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electronic recording, the prosecution may rebut a presumption of

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inadmissibility only by offering clear and convincing evidence

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that:

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     (I) The statement was both voluntary and reliable, made

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after the interrogee was fully advised of all constitutionally

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required warnings; and

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     (II) Law enforcement officers had good cause not to

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electronically record all or part of the interrogation.

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     b. For purposes of sub-subparagraph a., the term "good

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cause" includes, but is not limited to, the following:

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     (I) The interrogation occurred in a location other than an

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interrogation facility under exigent circumstances where the

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requisite recording equipment was not readily available and there

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was no reasonable opportunity to move the interrogee to an

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interrogation facility or to another location at which the

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requisite recording equipment was readily available;

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     (II) The interrogee refused to have the interrogation

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electronically recorded, and such refusal was electronically

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recorded;

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     (III) The failure to electronically record an entire

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interrogation was the result of equipment failure, and obtaining

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replacement equipment was not feasible; or

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     (IV) The statement of the interrogee was obtained in the

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course of electronic eavesdropping that was being conducted

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pursuant to a properly obtained and issued warrant or that

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required no warrant and was otherwise legally conducted.

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     4. Notwithstanding any other provision of this paragraph, a

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written, oral, or sign-language statement of the interrogee that

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was made as a result of a custodial interrogation is admissible

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in a criminal proceeding against the interrogee in this state if:

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     a. The statement was obtained in another jurisdiction by

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investigative personnel of such jurisdiction, acting

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independently of law enforcement personnel of this state, in

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compliance with the laws of such jurisdiction; or

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     b. The statement was obtained by a federal officer in this

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state or another jurisdiction during a lawful federal

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investigation and was obtained in compliance with the laws of the

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United States.

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     5. Every electronic recording of a custodial interrogation

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made pursuant to this paragraph must be preserved until the

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interrogee's conviction for any offense relating to the

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interrogation is final and all direct appeals and collateral

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challenges are exhausted, the prosecution of such offenses is

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barred by law, or the state irrevocably waives in writing any

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future prosecution of the interrogee for any offense relating to

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the interrogation.

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     6. This paragraph does not preclude the admission into

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evidence of a statement made by the interrogee:

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     a. At his or her trial or other hearing held in open court;

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     b. Before a grand jury;

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     c. That is the res gestae of the arrest or the offense; or

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     d. That does not arise from a custodial interrogation or

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that is a spontaneous statement.

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     Section 2.  Paragraph (c) of subsection (2) of section

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90.804, Florida Statutes, is amended to read:

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     90.804  Hearsay exceptions; declarant unavailable.--

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     (2)  HEARSAY EXCEPTIONS.--The following are not excluded

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under s. 90.802, provided that the declarant is unavailable as a

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witness:

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     (c)  Statement against interest.--A statement which, at the

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time of its making, was so far contrary to the declarant's

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pecuniary or proprietary interest or tended to subject the

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declarant to liability or to render invalid a claim by the

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declarant against another, so that a person in the declarant's

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position would not have made the statement unless he or she

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believed it to be true. A statement tending to expose the

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declarant to criminal liability and offered to exculpate the

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accused is inadmissible, unless corroborating circumstances show

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the trustworthiness of the statement. However, any statement made

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during a custodial interrogation of an interrogee as defined in

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s. 90.803(18)(f) must comply with the requirements of that

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paragraph when required to do so to be admissible under this

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paragraph.

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     Section 3. (1) The Legislature finds that the reputations

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of countless hard-working law enforcement officers are needlessly

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attacked by criminal suspects who falsely claim the officers have

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violated the suspects' constitutional rights, that limited trial

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court resources are squandered in hearings on motions seeking to

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suppress statements made by criminal suspects who are given the

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opportunity to make such claims because no recordings of their

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interrogations exist, and, further, that judicial resources are

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squandered when criminal suspects, after having been convicted of

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their crimes, file frivolous and unnecessary appeals. This

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process costs the taxpayers of this state untold dollars each

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year, dollars that could be better spent enhancing the

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administration of the criminal justice system. Low-cost

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technology is now available in every jurisdiction to record each

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custodial interrogation of a criminal suspect, eliminating this

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gross waste of resources and enhancing the reliability and

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reputation of law enforcement officers. Therefore, the

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Legislature determines and declares that this act fulfills an

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important state interest.

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     (2) The purpose of this act is to require the creation of

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an electronic record of an entire custodial interrogation in

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order to eliminate disputes about interrogations, thereby

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improving prosecution of the guilty while affording protection to

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the innocent and increasing court efficiency.

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     Section 4.  This act shall take effect July 1, 2008.