Senate Bill 2048c1

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



    Florida Senate - 2000                           CS for SB 2048

    By the Committee on Judiciary and Senator Klein





    308-2073-00

  1                      A bill to be entitled

  2         An act relating to evidence; amending s.

  3         90.803, F.S.; modifying conditions under which

  4         statements of elderly persons or mentally

  5         disabled persons, as defined, may be admitted

  6         into evidence as a hearsay exception; amending

  7         s. 90.502, F.S.; providing that discussion or

  8         activity that is not a meeting under s.

  9         286.011, F.S., shall not waive the

10         attorney-client privilege; providing that such

11         privilege does not constitute an exemption to

12         s. 119.07 or s. 286.011, F.S.; providing an

13         effective date.

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

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17         Section 1.  Subsection (24) of section 90.803, Florida

18  Statutes, is amended to read:

19         90.803  Hearsay exceptions; availability of declarant

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

21  notwithstanding, the following are not inadmissible as

22  evidence, even though the declarant is available as a witness:

23         (24)  HEARSAY EXCEPTION; STATEMENT OF ELDERLY PERSON OR

24  MENTALLY DISABLED PERSON ADULT.--

25         (a)  As used in this subsection, the term:

26         1.  "Elderly person" means a person 60 years of age or

27  older who suffers from the infirmities of aging as manifested

28  by advanced age, organic brain damage, or other mental or

29  emotional dysfunctioning to the extent that the person's

30  ability to provide adequately for his or her own care or

31  protection is impaired.

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    Florida Senate - 2000                           CS for SB 2048
    308-2073-00




  1         2.  "Mentally disabled person" means a person who

  2  suffers from a condition of mental or emotional incapacitation

  3  due to a developmental disability, organic brain damage, or

  4  mental illness which restricts the person's ability to perform

  5  the normal activities of daily living.

  6         (b)(a)  When made in a context that provides

  7  substantial guarantees of its Unless the source of information

  8  or the method or circumstances by which the statement is

  9  reported indicates a lack of trustworthiness, an out-of-court

10  statement made by an elderly person or mentally disabled

11  person adult, as defined in s. 825.101, describing any act of

12  abuse or neglect, any act of exploitation, or any sexual

13  offense, committed the offense of battery or aggravated

14  battery or assault or aggravated assault or sexual battery, or

15  any other violent act on the declarant elderly person or

16  mentally disabled person which adult, not otherwise

17  admissible, is admissible in evidence in any civil or criminal

18  proceeding if:

19         1.  The court finds in a hearing conducted outside the

20  presence of the jury that the time, content, and circumstances

21  of the statement provide such sufficient safeguards of

22  reliability that adversarial testing of the statement in court

23  would add little to its reliability.  In making its

24  determination, the court must may consider the mental age and

25  capacity physical age and maturity of the declarant elderly

26  person or mentally disabled person adult, the nature and

27  duration of the abuse or offense, the relationship of the

28  declarant victim to the offender, the reliability of the

29  assertion under the totality of the circumstances, and the

30  reliability of the declarant. In addition the court may

31  consider elderly person or disabled adult, and any other

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    Florida Senate - 2000                           CS for SB 2048
    308-2073-00




  1  factor deemed appropriate, including, but not limited to, the

  2  statement's spontaneity, whether the statement was made at the

  3  first available opportunity following the alleged incident,

  4  whether the statement was elicited in response to questions,

  5  the mental state of the elderly or mentally disabled person,

  6  when the incident was reported, whether the elderly or

  7  mentally disabled person used terminology unexpected of a

  8  person with his or her disability, the motive or lack thereof

  9  to fabricate the statement, the vagueness of the accusations,

10  the possibility of any improper influence on the elderly

11  person or mentally disabled person, and contradictory

12  statements; and

13         2.  The elderly person or mentally disabled person

14  adult either:

15         a.  Testifies; or

16         b.  Is unavailable as a witness, provided that there is

17  corroborative evidence of the abuse or offense. Unavailability

18  shall include a finding by the court that the elderly person's

19  or mentally disabled person's adult's participation in the

20  trial or proceeding would result in a substantial likelihood

21  of severe emotional, mental, or physical harm, in addition to

22  findings pursuant to s. 90.804(1).

23         (c)(b)  In a criminal action, the defendant shall be

24  notified no later than 10 days before the trial that a

25  statement that which qualifies as a hearsay exception pursuant

26  to this subsection will be offered as evidence at trial. The

27  notice shall include a written statement of the content of the

28  elderly person's or mentally disabled person's adult's

29  statement, the time at which the statement was made, the

30  circumstances surrounding the statement which indicate its

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    Florida Senate - 2000                           CS for SB 2048
    308-2073-00




  1  reliability, and such other particulars as necessary to

  2  provide full disclosure of the statement.

  3         (d)(c)  The court shall make specific findings of fact,

  4  on the record, as to the basis for its ruling under this

  5  subsection.

  6         Section 2.  Subsection (6) is added to section 90.502,

  7  Florida Statutes, to read:

  8         90.502  Lawyer-client privilege.--

  9         (6)  A discussion or activity that is not a meeting for

10  purposes of s. 286.011 shall not be construed to waive the

11  attorney-client privilege established in this section. This

12  shall not be construed to constitute an exemption or alter an

13  existing exemption to s. 119.07 or s. 286.011.

14         Section 3.  This act shall take effect July 1, 2000.

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16          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
17                             SB 2048

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19  Removes hearsay statements about "any act of violence"
    committed on an elderly person or mentally disabled adult from
20  the list of hearsay statements that will be admissible in
    evidence in a criminal or civil proceeding pursuant to this
21  section.

22  Adds a new section to the bill which amends s. 90.502, F.S.
    This section of the Florida Evidence Code contains the
23  lawyer-client privilege. A new subsection is added to provide
    that a discussion or activity that is not a meeting for
24  purposes of s. 286.011, F.S., shall not be construed as
    waiving the attorney-client privilege. Additionally, this
25  subsection shall not be construed as an exemption to ss.
    119.07 or 286.011, F.S., which pertain to public records and
26  meetings under the Government in the Sunshine Act.

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