House Bill 2139

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    Florida House of Representatives - 2000                HB 2139

        By Representatives Stafford, Wiles, Levine and Heyman






  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; providing

  7         an effective date.

  8

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

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

12  Statutes, is amended to read:

13         90.803  Hearsay exceptions; availability of declarant

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

15  notwithstanding, the following are not inadmissible as

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

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

18  MENTALLY DISABLED PERSON ADULT.--

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

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

21  older who suffers from the infirmities of aging as manifested

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

23  emotional dysfunctioning to the extent that the person's

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

25  protection is impaired.

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

27  suffers from a condition of mental or emotional incapacitation

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

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

30  the normal activities of daily living.

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    Florida House of Representatives - 2000                HB 2139

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

  2  substantial guarantees of its Unless the source of information

  3  or the method or circumstances by which the statement is

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

  5  statement made by an elderly person or mentally disabled

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

  7  abuse or neglect, any act of exploitation, or any act of

  8  violence, including a sexual offense, committed the offense of

  9  battery or aggravated battery or assault or aggravated assault

10  or sexual battery, or any other violent act on the declarant

11  elderly person or mentally disabled person which adult, not

12  otherwise admissible, is admissible in evidence in any civil

13  or criminal proceeding if:

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

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

16  of the statement provide such sufficient safeguards of

17  reliability that adversarial testing of the statement in court

18  would add little to its reliability.  In making its

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

20  capacity physical age and maturity of the declarant elderly

21  person or mentally disabled person adult, the nature and

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

23  declarant victim to the offender, the reliability of the

24  assertion under the totality of the circumstances, and the

25  reliability of the declarant. In addition the court may

26  consider elderly person or disabled adult, and any other

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

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

29  first available opportunity following the alleged incident,

30  whether the statement was elicited in response to questions,

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

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    Florida House of Representatives - 2000                HB 2139

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  1  when the incident was reported, whether the elderly or

  2  mentally disabled person used terminology unexpected of a

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

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

  5  the possibility of any improper influence on the elderly

  6  person or mentally disabled person, and contradictory

  7  statements; and

  8         2.  The elderly person or mentally disabled person

  9  adult either:

10         a.  Testifies; or

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

12  corroborative evidence of the abuse or offense. Unavailability

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

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

15  trial or proceeding would result in a substantial likelihood

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

17  findings pursuant to s. 90.804(1).

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

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

20  statement that which qualifies as a hearsay exception pursuant

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

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

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

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

25  circumstances surrounding the statement which indicate its

26  reliability, and such other particulars as necessary to

27  provide full disclosure of the statement.

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

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

30  subsection.

31         Section 2.  This act shall take effect July 1, 2000.

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    Florida House of Representatives - 2000                HB 2139

    289-235-00






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  2                          SENATE SUMMARY

  3    Modifies the conditions under which statements of elderly
      persons and mentally disabled persons, as defined, may be
  4    admitted into evidence as an exception to the hearsay
      rule.
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