HB 701

A bill to be entitled
2An act relating to the Florida Evidence Code; amending
3s. 90.803, F.S.; providing that certain specified
4spontaneous statements relating to a call to an
5emergency operations center, such as police, fire, or
6emergency rescue personnel, are admissible as evidence
7if the call is for the immediate dispatch of personnel
8for emergency purposes; providing that an excited
9utterance made by a victim to an emergency responder,
10including police, fire, or emergency personnel, is
11admissible if the victim or witness is under the
12stress or excitement of the event while the statement
13is being made; providing an exception to the
14inadmissibility of a hearsay statement of the victim
15of domestic violence in a proceeding relating to
16criminal domestic violence; requiring that the court
17consider certain matters and make specific findings of
18fact to support the court's decision to admit the
19victim's statement into evidence; requiring that, in a
20criminal case, the defendant be notified of the
21victim's statement at least 10 days before the
22criminal trial or proceeding; providing for the
23content of the notice; amending s. 90.804, F.S.;
24providing that, in a criminal case, upon proof by a
25preponderance of the evidence that the accused, at any
26time, assaulted an unavailable witness, or threatened
27to inflict physical harm upon an unavailable witness
28or any member of the witness's immediate family, the
29court may presume forfeiture of any objection under
30the hearsay rule or the confrontation clause of the
31State Constitution; creating s. 90.807, F.S.;
32providing that a statement not specifically covered by
33any other hearsay exception, but having equivalent
34circumstantial guarantees of trustworthiness, is not
35excluded by the hearsay rule if the court determines
36that the interests of justice will be best served by
37admitting the statement into evidence; requiring a
38certain procedure be followed before that statement
39may be admitted; providing an effective date.
41Be It Enacted by the Legislature of the State of Florida:
43     Section 1.  Subsections (1) and (2) of section 90.803,
44Florida Statutes, are amended, and subsection (25) is added to
45that section, to read:
46     90.803  Hearsay exceptions; availability of declarant
47immaterial.-The provision of s. 90.802 to the contrary
48notwithstanding, the following are not inadmissible as evidence,
49even though the declarant is available as a witness:
50     (1)  SPONTANEOUS STATEMENT.-A spontaneous statement
51describing or explaining an event or condition made while the
52declarant was perceiving the event or condition, or immediately
53thereafter, except when such statement is made under
54circumstances that indicate its lack of trustworthiness. A call
55to an emergency operations center, such as police, fire, or
56emergency rescue personnel, is admissible if the purpose of the
57call is for the immediate dispatch of personnel for emergency
58purposes and is not merely to report a crime or event or a call
59for assistance regarding an event occurring a substantial period
60of time in the past.
61     (2)  EXCITED UTTERANCE.-A statement or excited utterance
62relating to a startling event or condition made while the
63declarant was under the stress of excitement caused by the event
64or condition. In a criminal case, a statement made by the victim
65to an emergency responder, including police, fire, or emergency
66personnel, is admissible if, while the statement is made, the
67victim or witness is under the stress or excitement of the
71     (a)  Unless the source of information or the method or
72circumstances by which the statement is reported indicates a
73lack of trustworthiness, an out-of-court statement made by a
74victim of domestic violence, as defined in s. 741.28, describing
75any act of domestic violence not otherwise admissible, is
76admissible in evidence in any criminal proceeding if:
77     1.  The court finds in a hearing conducted outside the
78presence of the jury that the time, content, and circumstances
79of the statement provide sufficient safeguards of reliability.
80In making its determination, the court may consider the mental
81and physical age and maturity of the victim of domestic
82violence, the nature and duration of the act of domestic
83violence, the relationship of the victim to the offender, the
84reliability of the assertion, the reliability of the victim of
85domestic violence, and any other factor deemed appropriate; and
86     2.  The victim of domestic violence:
87     a.  Testifies; or
88     b.  Is unavailable as a witness and there is corroborative
89evidence of the offense. Unavailability includes a finding by
90the court that the victim's participation in the criminal trial
91or proceeding would result in a substantial likelihood of severe
92emotional, mental, or physical harm, in addition to findings
93pursuant to s. 90.804(1).
94     (b)  In a criminal action, the defendant shall be notified
95at least 10 days before the trial that a statement that
96qualifies as a hearsay exception pursuant to this subsection
97will be offered as evidence at trial. The notice must include a
98written statement of the content of the victim's statement, the
99time at which the statement was made, the circumstances
100surrounding the statement which indicate its reliability, and
101such other particulars as necessary to provide full disclosure
102of the statement.
103     (c)  The court shall make specific findings of fact, on the
104record, as to the basis for its ruling under this subsection.
105     Section 2.  Paragraph (f) is added to subsection (2) of
106section 90.804, Florida Statutes, to read:
107     90.804  Hearsay exceptions; declarant unavailable.-
108     (2)  HEARSAY EXCEPTIONS.-The following are not excluded
109under s. 90.802, provided that the declarant is unavailable as a
111     (f)  Forfeiture by wrongdoing.-A statement offered against
112a party that has engaged or acquiesced in wrongdoing that was
113intended to, and did, procure the unavailability of the
114declarant as a witness. In a criminal case, upon proof by a
115preponderance of the evidence that the accused, at any time,
116assaulted an unavailable witness, or threatened to inflict
117physical harm upon an unavailable witness or any member of the
118witness's immediate family, the court may presume forfeiture of
119any objection under the hearsay rule or the confrontation clause
120of the State Constitution. This presumption may be rebutted by
121proof by a preponderance of the evidence that the accused did
122not engage in, and did not acquiesce in, the wrongdoing intended
123to cause the witness not to testify.
124     Section 3.  Section 90.807, Florida Statutes, is created to
126     90.807  Residual exception.-A statement that is not
127specifically covered by s. 90.803 or s. 90.804 but that has
128equivalent circumstantial guarantees of trustworthiness is not
129excluded by the hearsay rule if the court determines that the
130statement is offered as evidence of a material fact, the
131statement is more probative on the point for which it is offered
132than any other evidence that the proponent can procure through
133reasonable efforts, and the general purposes of these rules and
134the interests of justice will best be served by admission of the
135statement into evidence. However, a statement may not be
136admitted under this exception unless the party seeking admission
137makes known such intention, including the particulars of the
138statement and the declarant's name and address, to the adverse
139party sufficiently in advance of the trial or hearing to provide
140the adverse party with a fair opportunity to deny or explain the
142     Section 4.  This act shall take effect July 1, 2012.

CODING: Words stricken are deletions; words underlined are additions.