Florida Senate - 2012                                     SB 782
       
       
       
       By Senator Bennett
       
       
       
       
       21-00433-12                                            2012782__
    1                        A bill to be entitled                      
    2         An act relating to the Florida Evidence Code; amending
    3         s. 90.803, F.S.; providing that certain specified
    4         spontaneous statements relating to a call to an
    5         emergency operations center, such as police, fire, or
    6         emergency rescue personnel, is admissible as evidence
    7         if the call is for the immediate dispatch of personnel
    8         for emergency purposes; providing that an excited
    9         utterance made by a victim to an emergency responder,
   10         including police, fire, or emergency personnel, is
   11         admissible if the victim or witness is under the
   12         stress or excitement of the event while the statement
   13         is being made; providing an exception to the
   14         inadmissibility of a hearsay statement of the victim
   15         of domestic violence in a proceeding relating to
   16         criminal domestic violence; requiring that the court
   17         consider certain matters and make specific findings of
   18         fact to support the court’s decision to admit the
   19         victim’s statement into evidence; requiring that, in a
   20         criminal case, the defendant be notified of the
   21         victim’s statement at least 10 days before the
   22         criminal trial or proceeding; providing for the
   23         content of the notice; amending s. 90.804, F.S.;
   24         providing that, in a criminal case, upon proof by a
   25         preponderance of the evidence that the accused, at any
   26         time, assaulted an unavailable witness, or threatened
   27         to inflict physical harm upon an unavailable witness
   28         or any member of the witness’s immediate family, the
   29         court may presume forfeiture of any objection under
   30         the hearsay rule or the confrontation clause of the
   31         State Constitution; creating s. 90.807, F.S.;
   32         providing that a statement not specifically covered by
   33         any other hearsay exception, but having equivalent
   34         circumstantial guarantees of trustworthiness, is not
   35         excluded by the hearsay rule if the court determines
   36         that the interests of justice will be best served by
   37         admitting the statement into evidence; requiring a
   38         certain procedure be followed before that statement
   39         may be admitted; providing an effective date.
   40  
   41  Be It Enacted by the Legislature of the State of Florida:
   42  
   43         Section 1. Subsections (1) and (2) of section 90.803,
   44  Florida Statutes, are amended, and subsection (25) is added to
   45  that section, to read:
   46         90.803 Hearsay exceptions; availability of declarant
   47  immaterial.—The provision of s. 90.802 to the contrary
   48  notwithstanding, the following are not inadmissible as evidence,
   49  even though the declarant is available as a witness:
   50         (1) SPONTANEOUS STATEMENT.—A spontaneous statement
   51  describing or explaining an event or condition made while the
   52  declarant was perceiving the event or condition, or immediately
   53  thereafter, except when such statement is made under
   54  circumstances that indicate its lack of trustworthiness. A call
   55  to an emergency operations center, such as police, fire, or
   56  emergency rescue personnel, is admissible if the purpose of the
   57  call is for the immediate dispatch of personnel for emergency
   58  purposes and is not merely to report a crime or event or a call
   59  for assistance regarding an event occurring a substantial period
   60  of time in the past.
   61         (2) EXCITED UTTERANCE.—A statement or excited utterance
   62  relating to a startling event or condition made while the
   63  declarant was under the stress of excitement caused by the event
   64  or condition. In a criminal case, a statement made by the victim
   65  to an emergency responder, including police, fire, or emergency
   66  personnel, is admissible if, while the statement is made, the
   67  victim or witness is under the stress or excitement of the
   68  event.
   69         (25) HEARSAY EXCEPTION; STATEMENT OF A VICTIM OF DOMESTIC
   70  VIOLENCE IN A CRIMINAL PROCEEDING.—
   71         (a) Unless the source of information or the method or
   72  circumstances by which the statement is reported indicates a
   73  lack of trustworthiness, an out-of-court statement made by a
   74  victim of domestic violence, as defined in s. 741.28, describing
   75  any act of domestic violence not otherwise admissible, is
   76  admissible in evidence in any criminal proceeding if:
   77         1. The court finds in a hearing conducted outside the
   78  presence of the jury that the time, content, and circumstances
   79  of the statement provide sufficient safeguards of reliability.
   80  In making its determination, the court may consider the mental
   81  and physical age and maturity of the victim of domestic
   82  violence, the nature and duration of the act of domestic
   83  violence, the relationship of the victim to the offender, the
   84  reliability of the assertion, the reliability of the victim of
   85  domestic 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
   89  evidence of the offense. Unavailability includes a finding by
   90  the court that the victim’s participation in the criminal trial
   91  or proceeding would result in a substantial likelihood of severe
   92  emotional, mental, or physical harm, in addition to findings
   93  pursuant to s. 90.804(1).
   94         (b) In a criminal action, the defendant shall be notified
   95  at least 10 days before the trial that a statement that
   96  qualifies as a hearsay exception pursuant to this subsection
   97  will be offered as evidence at trial. The notice must include a
   98  written statement of the content of the victim’s statement, the
   99  time at which the statement was made, the circumstances
  100  surrounding the statement which indicate its reliability, and
  101  such other particulars as necessary to provide full disclosure
  102  of the statement.
  103         (c) The court shall make specific findings of fact, on the
  104  record, as to the basis for its ruling under this subsection.
  105         Section 2. Paragraph (f) is added to subsection (2) of
  106  section 90.804, Florida Statutes, to read:
  107         90.804 Hearsay exceptions; declarant unavailable.—
  108         (2) HEARSAY EXCEPTIONS.—The following are not excluded
  109  under s. 90.802, provided that the declarant is unavailable as a
  110  witness:
  111         (f) Forfeiture by wrongdoing.—A statement offered against a
  112  party that has engaged or acquiesced in wrongdoing that was
  113  intended to, and did, procure the unavailability of the
  114  declarant as a witness. In a criminal case, upon proof by a
  115  preponderance of the evidence that the accused, at any time,
  116  assaulted an unavailable witness, or threatened to inflict
  117  physical harm upon an unavailable witness or any member of the
  118  witness’s immediate family, the court may presume forfeiture of
  119  any objection under the hearsay rule or the confrontation clause
  120  of the State Constitution. This presumption may be rebutted by
  121  proof by a preponderance of the evidence that the accused did
  122  not engage in, and did not acquiesce in, the wrongdoing intended
  123  to cause the witness not to testify.
  124         Section 3. Section 90.807, Florida Statutes, is created to
  125  read:
  126         90.807 Residual exception.—A statement that is not
  127  specifically covered by s. 90.803 or s. 90.804 but that has
  128  equivalent circumstantial guarantees of trustworthiness is not
  129  excluded by the hearsay rule if the court determines that the
  130  statement is offered as evidence of a material fact, the
  131  statement is more probative on the point for which it is offered
  132  than any other evidence that the proponent can procure through
  133  reasonable efforts, and the general purposes of these rules and
  134  the interests of justice will best be served by admission of the
  135  statement into evidence. However, a statement may not be
  136  admitted under this exception unless the party seeking admission
  137  makes known such intention, including the particulars of the
  138  statement and the declarant’s name and address, to the adverse
  139  party sufficiently in advance of the trial or hearing to provide
  140  the adverse party with a fair opportunity to deny or explain the
  141  statement.
  142         Section 4. This act shall take effect July 1, 2012.