HB 721

1	A bill to be entitled
2	An act relating to the admissibility of statements of a
3	criminal defendant in felony cases; amending s. 90.803,
4	F.S.; requiring that hearsay statements made during
5	certain custodial interrogations comply with specified
6	requirements in order to be admissible; providing
7	definitions; describing circumstances in which an oral,
8	written, or sign-language statement made by an interrogee
9	during a custodial interrogation is presumed inadmissible
10	as evidence against such person; describing circumstances
11	in which the prosecution may rebut such presumption;
12	describing circumstances in which law enforcement officers
13	may have good cause not to electronically record all or
14	part of an interrogation; providing for the admissibility
15	of certain statements of an interrogee when made in
16	certain proceedings or when obtained by federal officers
17	or officers from other jurisdictions; providing for the
18	preservation of electronic recordings; providing for
19	admissibility of certain statements of an interrogee;
20	amending s. 90.804, F.S.; requiring that for a hearsay
21	statement against interest made during certain custodial
22	interrogations to be admissible when the declarant is
23	unavailable specified requirements must have been complied
24	with; providing a finding of important state interest;
25	specifying the purpose of the act; providing an effective
26	date.
27
28	Be It Enacted by the Legislature of the State of Florida:
29
30	Section 1.  Subsection (18) of section 90.803, Florida
31	Statutes, is amended to read:
32	90.803  Hearsay exceptions; availability of declarant
33	immaterial.--The provision of s. 90.802 to the contrary
34	notwithstanding, the following are not inadmissible as evidence,
35	even though the declarant is available as a witness:
36	(18)  ADMISSIONS.--A statement that is offered against a
37	party and is:
38	(a)  The party's own statement in either an individual or a
39	representative capacity;
40	(b)  A statement of which the party has manifested an
41	adoption or belief in its truth;
42	(c)  A statement by a person specifically authorized by the
43	party to make a statement concerning the subject;
44	(d)  A statement by the party's agent or servant concerning
45	a matter within the scope of the agency or employment thereof,
46	made during the existence of the relationship; or
47	(e)  A statement by a person who was a coconspirator of the
48	party during the course, and in furtherance, of the conspiracy.
49	Upon request of counsel, the court shall instruct the jury that
50	the conspiracy itself and each member's participation in it must
51	be established by independent evidence, either before the
52	introduction of any evidence or before evidence is admitted
53	under this paragraph; or.
54	(f)  The party's own statement that is the result of a
55	custodial interrogation and the interrogation, if required to do
56	so, complied with this paragraph.
57	1.  As used in this paragraph, the term:
58	a.  "Custodial interrogation" or "interrogation" means
59	questioning of an interrogee in circumstances in which a
60	reasonable person placed in the same position would believe that
61	his or her freedom of action was curtailed to a degree
62	associated with actual arrest.
63	b.  "Electronic recording" means a true, complete, and
64	accurate reproduction of a custodial interrogation. An
65	electronic recording may be created by motion picture,
66	videotape, audiotape, or digital or other media.
67	c.  "Interrogation facility" means a law enforcement
68	facility, correctional facility, community correctional center,
69	detention facility, law enforcement vehicle, courthouse, or
70	other secure environment.
71	d.  "Interrogee" means a person who, at the time of the
72	interrogation and concerning any topic of the interrogation, is:
73	(I)  Charged with a felony; or
74	(II)  Suspected by those conducting the interrogation of
75	involvement in the felony.
76	e.  "Involvement" means participation in a crime as a
77	principal or an accessory.
78	2.  An oral, written, or sign-language statement made by an
79	interrogee during a custodial interrogation shall be
80	inadmissible as evidence against such person in a criminal
81	proceeding unless all of the following are complied with:
82	a.  The interrogation is reproduced in its entirety by
83	means of an electronic recording.
84	b.  Immediately prior to the commencement of the
85	interrogation, and as part of the electronic recording, the
86	interrogee is given all constitutionally required warnings and
87	the interrogee knowingly, intelligently, and voluntarily waives
88	any rights set out in the warnings that would, absent such
89	waiver, otherwise preclude the admission of the statement.
90	c.  The electronic recording device was capable of making a
91	true, complete, and accurate recording of the interrogation, the
92	operator of such device was competent, and the electronic
93	recording has not been altered.
94	d.  All persons recorded on the electronic recording who
95	are material to the custodial interrogation are identified on
96	the electronic recording.
97	e.  During discovery pursuant to Rule 3.220, Florida Rules
98	of Criminal Procedure, but in no circumstances later than the
99	20th day before the date of the proceeding in which the
100	prosecution intends to offer the statement, the attorney
101	representing an interrogee is provided with true, complete, and
102	accurate copies of all electronic recordings of the interrogee
103	that are made pursuant to this paragraph.
104	3.a.  In the absence of a true, complete, and accurate
105	electronic recording, the prosecution may rebut a presumption of
106	inadmissibility only by offering clear and convincing evidence
107	that:
108	(I)  The statement was both voluntary and reliable, made
109	after the interrogee was fully advised of all constitutionally
110	required warnings; and
111	(II)  Law enforcement officers had good cause not to
112	electronically record all or part of the interrogation.
113	b.  For purposes of sub-subparagraph a., the term "good
114	cause" includes, but is not limited to, the following:
115	(I)  The interrogation occurred in a location other than an
116	interrogation facility under exigent circumstances where the
117	requisite recording equipment was not readily available and
118	there was no reasonable opportunity to move the interrogee to an
119	interrogation facility or to another location at which the
120	requisite recording equipment was readily available;
121	(II)  The interrogee refused to have the interrogation
122	electronically recorded, and such refusal was electronically
123	recorded;
124	(III)  The failure to electronically record an entire
125	interrogation was the result of equipment failure, and obtaining
126	replacement equipment was not feasible; or
127	(IV)  The statement of the interrogee was obtained in the
128	course of electronic eavesdropping that was being conducted
129	pursuant to a properly obtained and issued warrant or that
130	required no warrant and was otherwise legally conducted.
131	4.  Notwithstanding any other provision of this paragraph,
132	a written, oral, or sign-language statement of the interrogee
133	that was made as a result of a custodial interrogation is
134	admissible in a criminal proceeding against the interrogee in
135	this state if:
136	a.  The statement was obtained in another jurisdiction by
137	investigative personnel of such jurisdiction, acting
138	independently of law enforcement personnel of this state, in
139	compliance with the laws of such jurisdiction; or
140	b.  The statement was obtained by a federal officer in this
141	state or another jurisdiction during a lawful federal
142	investigation and was obtained in compliance with the laws of
143	the United States.
144	5.  Every electronic recording of a custodial interrogation
145	made pursuant to this paragraph must be preserved until the
146	interrogee's conviction for any offense relating to the
147	interrogation is final and all direct appeals and collateral
148	challenges are exhausted, the prosecution of such offenses is
149	barred by law, or the state irrevocably waives in writing any
150	future prosecution of the interrogee for any offense relating to
151	the interrogation.
152	6.  This paragraph does not preclude the admission into
153	evidence of a statement made by the interrogee:
154	a.  At his or her trial or other hearing held in open
155	court;
156	b.  Before a grand jury;
157	c.  That is the res gestae of the arrest or the offense; or
158	d.  That does not arise from a custodial interrogation or
159	that is a spontaneous statement.
160	Section 2.  Paragraph (c) of subsection (2) of section
161	90.804, Florida Statutes, is amended to read:
162	90.804  Hearsay exceptions; declarant unavailable.--
163	(2)  HEARSAY EXCEPTIONS.--The following are not excluded
164	under s. 90.802, provided that the declarant is unavailable as a
165	witness:
166	(c)  Statement against interest.--A statement which, at the
167	time of its making, was so far contrary to the declarant's
168	pecuniary or proprietary interest or tended to subject the
169	declarant to liability or to render invalid a claim by the
170	declarant against another, so that a person in the declarant's
171	position would not have made the statement unless he or she
172	believed it to be true. A statement tending to expose the
173	declarant to criminal liability and offered to exculpate the
174	accused is inadmissible, unless corroborating circumstances show
175	the trustworthiness of the statement. However, any statement
176	made during a custodial interrogation of an interrogee as
177	defined in s. 90.803(18)(f) must comply with the requirements of
178	that paragraph when required to do so to be admissible under
179	this paragraph.
180	Section 3.  (1)  The Legislature finds that the reputations
181	of countless hard-working law enforcement officers are
182	needlessly attacked by criminal suspects who falsely claim the
183	officers have violated the suspects' constitutional rights, that
184	limited trial court resources are squandered in hearings on
185	motions seeking to suppress statements made by criminal suspects
186	who are given the opportunity to make such claims because no
187	recordings of their interrogations exist, and, further, that
188	judicial resources are squandered when criminal suspects, after
189	having been convicted of their crimes, file frivolous and
190	unnecessary appeals. This process costs the taxpayers of this
191	state untold dollars each year, dollars that could be better
192	spent enhancing the administration of the criminal justice
193	system. Low-cost technology is now available in every
194	jurisdiction to record each custodial interrogation of a
195	criminal suspect, eliminating this gross waste of resources and
196	enhancing the reliability and reputation of law enforcement
197	officers. Therefore, the Legislature determines and declares
198	that this act fulfills an important state interest.
199	(2)  The purpose of this act is to require the creation of
200	an electronic record of an entire custodial interrogation in
201	order to eliminate disputes about interrogations, thereby
202	improving prosecution of the guilty while affording protection
203	to the innocent and increasing court efficiency.
204	Section 4.  This act shall take effect July 1, 2008.

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