Criminal Defense Attorneys throughout the State of Florida are cautioning against a proposed bill that seeks to prohibit depositions of children and other vulnerable witnesses in criminal cases, arguing that it would have more negative consequences than positive outcomes.
A past president of the Florida Association of Criminal Defense Lawyers, believes that while the intent behind the legislation may be good, it is ultimately "counterintuitive." He explains that depositions are a valuable tool used by defense attorneys and prosecutors to assess the strength of a case and determine its viability for trial. He highlights that depositions take place in a non-adversarial and controlled environment, unlike open courtrooms with juries and numerous individuals present. They play a crucial role in resolving cases and sparing witnesses from further trauma.
On February 27, Senator Danny Burgess, R-Zephyrhills, introduced SB 1208, while Representative Taylor Yarkosky, R-Clermont, filed a companion bill, HB 1037, on the same day. Attorney General Ashley Moody issued a joint press release on March 1, 2023 supporting the proposal.
Moody stated, "This legislation will shield victims from unnecessarily reliving traumatic experiences, making it easier for them to come forward and help prosecutors secure convictions for their perpetrators." Both lawmakers expressed pride in joining Moody's fight against human trafficking.
The bills would apply to victims or witnesses under 18 years old, individuals with intellectual disabilities, and victims or witnesses in specific criminal cases. Offenses covered by the proposal include domestic violence, cyberstalking, human trafficking, human smuggling, sexual battery, and child abuse.
According to the bills, any motion requesting a deposition must be submitted in writing. It must demonstrate that the evidence cannot be reasonably obtained through other means and that the value of the testimony outweighs the potential harm to the person involved.
The court would be required to consider various factors, such as the mental and physical age and maturity of the witness or victim, as well as the potential moderate psychological harm they may experience.
In response to the proposed legislation, FACDL President Ernest Chang issued a statement on March 6, noting that a similar proposal failed to gain approval last year. Chang urged the Legislature to reject the proposal, emphasizing that both prosecutors and defense attorneys agree that prohibiting depositions is ill-advised. Depositions often lead to early case resolutions, avoiding the need for cross-examinations at trial and saving time and expenses.
Three years ago, the committee rejected a proposed rule amendment that sought to ban all depositions in criminal cases. He points out that the committee is evenly divided between defense attorneys, prosecutors, and judges.