Florida Senate - 2016                                    SB 1382
       
       
        
       By Senator Flores
       
       37-01400-16                                           20161382__
    1                        A bill to be entitled                      
    2         An act relating to victim and witness protection;
    3         amending ss. 92.53 and 92.54, F.S.; increasing the
    4         maximum age of victims and witnesses for whom the
    5         court may order the use of videotaped testimony and
    6         closed circuit television in court proceedings in lieu
    7         of testifying in open court; amending s. 92.55, F.S.;
    8         revising the definition of the term “sexual offense
    9         victim or witness”; increasing the maximum age of
   10         victims and witnesses for whom the court may enter
   11         protective orders; authorizing certain advocates to
   12         file motions for such orders on behalf of certain
   13         persons; amending s. 794.022, F.S.; revising the
   14         corroboration requirements for certain victim
   15         testimony and the admissibility of certain evidence in
   16         prosecutions to include specified human trafficking
   17         and lewd or lascivious offenses; reenacting s.
   18         90.404(1)(b), F.S., relating to character evidence, to
   19         incorporate the amendment made to s. 794.022, F.S., in
   20         a reference thereto; providing an effective date.
   21          
   22  Be It Enacted by the Legislature of the State of Florida:
   23  
   24         Section 1. Section 92.53, Florida Statutes, is amended to
   25  read:
   26         92.53 Videotaping the testimony of a victim or witness
   27  under age 18 16 or who has an intellectual disability.—
   28         (1) On motion and hearing in camera and a finding that
   29  there is a substantial likelihood that a victim or witness who
   30  is under the age of 18 16 or who has an intellectual disability
   31  as defined in s. 393.063 would suffer at least moderate
   32  emotional or mental harm due to the presence of the defendant if
   33  such victim or witness is required to testify in open court, or
   34  is unavailable as defined in s. 90.804(1), the trial court may
   35  order the videotaping of the testimony of the victim or witness
   36  in a case, whether civil or criminal in nature, in which
   37  videotaped testimony is to be used at trial in lieu of trial
   38  testimony in open court.
   39         (2) The motion may be filed by:
   40         (a) The victim or witness, or the victim’s or witness’s
   41  attorney, parent, legal guardian, or guardian ad litem;
   42         (b) A trial judge on his or her own motion;
   43         (c) Any party in a civil proceeding; or
   44         (d) The prosecuting attorney or the defendant, or the
   45  defendant’s counsel.
   46         (3) The judge shall preside, or shall appoint a special
   47  master to preside, at the videotaping unless:
   48         (a) The child or the person who has the intellectual
   49  disability is represented by a guardian ad litem or counsel;
   50         (b) The representative of the victim or witness and the
   51  counsel for each party stipulate that the requirement for the
   52  presence of the judge or special master may be waived; and
   53         (c) The court finds at a hearing on the motion that the
   54  presence of a judge or special master is not necessary to
   55  protect the victim or witness.
   56         (4) The defendant and the defendant’s counsel must be
   57  present at the videotaping unless the defendant has waived this
   58  right. The court may require the defendant to view the testimony
   59  from outside the presence of the child or the person who has an
   60  intellectual disability by means of a two-way mirror or another
   61  similar method that ensures that the defendant can observe and
   62  hear the testimony of the victim or witness in person, but the
   63  victim or witness cannot hear or see the defendant. The
   64  defendant and the attorney for the defendant may communicate by
   65  any appropriate private method.
   66         (5) Any party, or the court on its own motion, may request
   67  the aid of an interpreter, as provided in s. 90.606, to aid the
   68  parties in formulating methods of questioning the child or
   69  person who has the intellectual disability and in interpreting
   70  the answers of the child or person during proceedings conducted
   71  under this section.
   72         (6) The motion referred to in subsection (1) may be made at
   73  any time with reasonable notice to each party to the cause, and
   74  videotaping of testimony may be made any time after the court
   75  grants the motion. The videotaped testimony is admissible as
   76  evidence in the trial of the cause; however, such testimony is
   77  not admissible in any trial or proceeding in which such witness
   78  testifies by use of closed circuit television pursuant to s.
   79  92.54.
   80         (7) The court shall make specific findings of fact, on the
   81  record, as to the basis for its ruling under this section.
   82         Section 2. Section 92.54, Florida Statutes, is amended to
   83  read:
   84         92.54 Use of closed circuit television in proceedings
   85  involving a victim or witness under the age of 18 16 or who has
   86  an intellectual disability.—
   87         (1) Upon motion and hearing in camera and upon a finding
   88  that there is a substantial likelihood that a victim or witness
   89  under the age of 18 16 or who has an intellectual disability
   90  will suffer at least moderate emotional or mental harm due to
   91  the presence of the defendant if such victim or witness is
   92  required to testify in open court, or is unavailable as defined
   93  in s. 90.804(1), the trial court may order that the testimony of
   94  the victim or witness be taken outside of the courtroom and
   95  shown by means of closed circuit television.
   96         (2) The motion may be filed by the victim or witness; the
   97  attorney, parent, legal guardian, or guardian ad litem of the
   98  victim or witness; the prosecutor; the defendant or the
   99  defendant’s counsel; or the trial judge on his or her own
  100  motion.
  101         (3) Only the judge, the prosecutor, the defendant, the
  102  attorney for the defendant, the operators of the videotape
  103  equipment, an interpreter, and some other person who, in the
  104  opinion of the court, contributes to the well-being of the child
  105  or the person who has an intellectual disability and who will
  106  not be a witness in the case may be in the room during the
  107  recording of the testimony.
  108         (4) During the victim’s or witness’s testimony by closed
  109  circuit television, the court may require the defendant to view
  110  the testimony from the courtroom. In such a case, the court
  111  shall permit the defendant to observe and hear the testimony of
  112  the victim or witness, but must ensure that the victim or
  113  witness cannot hear or see the defendant. The defendant’s right
  114  to assistance of counsel, which includes the right to immediate
  115  and direct communication with counsel conducting cross
  116  examination, must be protected and, upon the defendant’s
  117  request, such communication must be provided by any appropriate
  118  electronic method.
  119         (5) The court shall make specific findings of fact, on the
  120  record, as to the basis for its ruling under this section.
  121         Section 3. Section 92.55, Florida Statutes, is amended to
  122  read:
  123         92.55 Judicial or other proceedings involving victim or
  124  witness under the age of 18 16, a person who has an intellectual
  125  disability, or a sexual offense victim or witness; special
  126  protections; use of registered service or therapy animals.—
  127         (1) For purposes of this section, the term:
  128         (a) “Sexual offense victim or witness” means a person who
  129  was under the age of 18 16 when he or she was the victim of or a
  130  witness to a sexual offense.
  131         (b) “Sexual offense” means any offense specified in s.
  132  775.21(4)(a)1. or s. 943.0435(1)(a)1.a.(I).
  133         (2) Upon motion of any party, upon motion of a parent,
  134  guardian, attorney, or guardian ad litem, or other advocate
  135  appointed by the court under s. 914.17 for a victim or witness
  136  under the age of 18 16, a person who has an intellectual
  137  disability, or a sexual offense victim or witness, or upon its
  138  own motion, the court may enter any order necessary to protect
  139  the victim or witness in any judicial proceeding or other
  140  official proceeding from severe emotional or mental harm due to
  141  the presence of the defendant if the victim or witness is
  142  required to testify in open court. Such orders must relate to
  143  the taking of testimony and include, but are not limited to:
  144         (a) Interviewing or the taking of depositions as part of a
  145  civil or criminal proceeding.
  146         (b) Examination and cross-examination for the purpose of
  147  qualifying as a witness or testifying in any proceeding.
  148         (c) The use of testimony taken outside of the courtroom,
  149  including proceedings under ss. 92.53 and 92.54.
  150         (3) In ruling upon the motion, the court shall consider:
  151         (a) The age of the child, the nature of the offense or act,
  152  the relationship of the child to the parties in the case or to
  153  the defendant in a criminal action, the degree of emotional
  154  trauma that will result to the child as a consequence of the
  155  defendant’s presence, and any other fact that the court deems
  156  relevant;
  157         (b) The age of the person who has an intellectual
  158  disability, the functional capacity of such person, the nature
  159  of the offenses or act, the relationship of the person to the
  160  parties in the case or to the defendant in a criminal action,
  161  the degree of emotional trauma that will result to the person as
  162  a consequence of the defendant’s presence, and any other fact
  163  that the court deems relevant; or
  164         (c) The age of the sexual offense victim or witness when
  165  the sexual offense occurred, the relationship of the sexual
  166  offense victim or witness to the parties in the case or to the
  167  defendant in a criminal action, the degree of emotional trauma
  168  that will result to the sexual offense victim or witness as a
  169  consequence of the defendant’s presence, and any other fact that
  170  the court deems relevant.
  171         (4) In addition to such other relief provided by law, the
  172  court may enter orders limiting the number of times that a
  173  child, a person who has an intellectual disability, or a sexual
  174  offense victim or witness may be interviewed, prohibiting
  175  depositions of the victim or witness, requiring the submission
  176  of questions before the examination of the victim or witness,
  177  setting the place and conditions for interviewing the victim or
  178  witness or for conducting any other proceeding, or permitting or
  179  prohibiting the attendance of any person at any proceeding. The
  180  court shall enter any order necessary to protect the rights of
  181  all parties, including the defendant in any criminal action.
  182         (5) The court may set any other conditions it finds just
  183  and appropriate when taking the testimony of a child victim or
  184  witness or a sexual offense victim or witness, including the use
  185  of a service or therapy animal that has been evaluated and
  186  registered according to national standards, in any proceeding
  187  involving a sexual offense. When deciding whether to permit a
  188  child victim or witness or sexual offense victim or witness to
  189  testify with the assistance of a registered service or therapy
  190  animal, the court shall consider the age of the child victim or
  191  witness, the age of the sexual offense victim or witness at the
  192  time the sexual offense occurred, the interests of the child
  193  victim or witness or sexual offense victim or witness, the
  194  rights of the parties to the litigation, and any other relevant
  195  factor that would facilitate the testimony by the child victim
  196  or witness or sexual offense victim or witness.
  197         Section 4. Subsections (1) through (4) of section 794.022,
  198  Florida Statutes, are amended to read:
  199         794.022 Rules of evidence.—
  200         (1) The testimony of the victim need not be corroborated in
  201  a prosecution under s. 787.06, s. 794.011, or s. 800.04.
  202         (2) Specific instances of prior consensual sexual activity
  203  between the victim and any person other than the offender shall
  204  not be admitted into evidence in a prosecution under s. 787.06,
  205  s. 794.011, or s. 800.04. However, such evidence may be admitted
  206  if it is first established to the court in a proceeding in
  207  camera that such evidence may prove that the defendant was not
  208  the source of the semen, pregnancy, injury, or disease; or, when
  209  consent by the victim is at issue, such evidence may be admitted
  210  if it is first established to the court in a proceeding in
  211  camera that such evidence tends to establish a pattern of
  212  conduct or behavior on the part of the victim which is so
  213  similar to the conduct or behavior in the case that it is
  214  relevant to the issue of consent.
  215         (3) Notwithstanding any other provision of law, reputation
  216  evidence relating to a victim’s prior sexual conduct or evidence
  217  presented for the purpose of showing that manner of dress of the
  218  victim at the time of the offense incited the offense sexual
  219  battery shall not be admitted into evidence in a prosecution
  220  under s. 787.06, s. 794.011, or s. 800.04.
  221         (4) When consent of the victim is a defense to prosecution
  222  under s. 787.06, s. 794.011, or s. 800.04, evidence of the
  223  victim’s mental incapacity or defect is admissible to prove that
  224  the consent was not intelligent, knowing, or voluntary; and the
  225  court shall instruct the jury accordingly.
  226         Section 5. For the purpose of incorporating the amendment
  227  made by this act to section 794.022, Florida Statutes, in a
  228  reference thereto, paragraph (b) of subsection (1) of section
  229  90.404, Florida Statutes, is reenacted to read:
  230         90.404 Character evidence; when admissible.—
  231         (1) CHARACTER EVIDENCE GENERALLY.—Evidence of a person’s
  232  character or a trait of character is inadmissible to prove
  233  action in conformity with it on a particular occasion, except:
  234         (b) Character of victim.—
  235         1. Except as provided in s. 794.022, evidence of a
  236  pertinent trait of character of the victim of the crime offered
  237  by an accused, or by the prosecution to rebut the trait; or
  238         2. Evidence of a character trait of peacefulness of the
  239  victim offered by the prosecution in a homicide case to rebut
  240  evidence that the victim was the aggressor.
  241         Section 6. This act shall take effect July 1, 2016.