HB 701

1	A bill to be entitled
2	An act relating to the Florida Evidence Code; amending
3	s. 90.803, F.S.; providing that certain specified
4	spontaneous statements relating to a call to an
5	emergency operations center, such as police, fire, or
6	emergency rescue personnel, are admissible as evidence
7	if the call is for the immediate dispatch of personnel
8	for emergency purposes; providing that an excited
9	utterance made by a victim to an emergency responder,
10	including police, fire, or emergency personnel, is
11	admissible if the victim or witness is under the
12	stress or excitement of the event while the statement
13	is being made; providing an exception to the
14	inadmissibility of a hearsay statement of the victim
15	of domestic violence in a proceeding relating to
16	criminal domestic violence; requiring that the court
17	consider certain matters and make specific findings of
18	fact to support the court's decision to admit the
19	victim's statement into evidence; requiring that, in a
20	criminal case, the defendant be notified of the
21	victim's statement at least 10 days before the
22	criminal trial or proceeding; providing for the
23	content of the notice; amending s. 90.804, F.S.;
24	providing that, in a criminal case, upon proof by a
25	preponderance of the evidence that the accused, at any
26	time, assaulted an unavailable witness, or threatened
27	to inflict physical harm upon an unavailable witness
28	or any member of the witness's immediate family, the
29	court may presume forfeiture of any objection under
30	the hearsay rule or the confrontation clause of the
31	State Constitution; creating s. 90.807, F.S.;
32	providing that a statement not specifically covered by
33	any other hearsay exception, but having equivalent
34	circumstantial guarantees of trustworthiness, is not
35	excluded by the hearsay rule if the court determines
36	that the interests of justice will be best served by
37	admitting the statement into evidence; requiring a
38	certain procedure be followed before that statement
39	may be admitted; providing an effective date.
40
41	Be It Enacted by the Legislature of the State of Florida:
42
43	Section 1.  Subsections (1) and (2) of section 90.803,
44	Florida Statutes, are amended, and subsection (25) is added to
45	that section, to read:
46	90.803  Hearsay exceptions; availability of declarant
47	immaterial.-The provision of s. 90.802 to the contrary
48	notwithstanding, the following are not inadmissible as evidence,
49	even though the declarant is available as a witness:
50	(1)  SPONTANEOUS STATEMENT.-A spontaneous statement
51	describing or explaining an event or condition made while the
52	declarant was perceiving the event or condition, or immediately
53	thereafter, except when such statement is made under
54	circumstances that indicate its lack of trustworthiness. A call
55	to an emergency operations center, such as police, fire, or
56	emergency rescue personnel, is admissible if the purpose of the
57	call is for the immediate dispatch of personnel for emergency
58	purposes and is not merely to report a crime or event or a call
59	for assistance regarding an event occurring a substantial period
60	of time in the past.
61	(2)  EXCITED UTTERANCE.-A statement or excited utterance
62	relating to a startling event or condition made while the
63	declarant was under the stress of excitement caused by the event
64	or condition. In a criminal case, a statement made by the victim
65	to an emergency responder, including police, fire, or emergency
66	personnel, is admissible if, while the statement is made, the
67	victim or witness is under the stress or excitement of the
68	event.
69	(25)  STATEMENT OF A VICTIM OF DOMESTIC VIOLENCE IN A
70	CRIMINAL PROCEEDING.-
71	(a)  Unless the source of information or the method or
72	circumstances by which the statement is reported indicates a
73	lack of trustworthiness, an out-of-court statement made by a
74	victim of domestic violence, as defined in s. 741.28, describing
75	any act of domestic violence not otherwise admissible, is
76	admissible in evidence in any criminal proceeding if:
77	1.  The court finds in a hearing conducted outside the
78	presence of the jury that the time, content, and circumstances
79	of the statement provide sufficient safeguards of reliability.
80	In making its determination, the court may consider the mental
81	and physical age and maturity of the victim of domestic
82	violence, the nature and duration of the act of domestic
83	violence, the relationship of the victim to the offender, the
84	reliability of the assertion, the reliability of the victim of
85	domestic violence, and any other factor deemed appropriate; and
86	2.  The victim of domestic violence:
87	a.  Testifies; or
88	b.  Is unavailable as a witness and there is corroborative
89	evidence of the offense. Unavailability includes a finding by
90	the court that the victim's participation in the criminal trial
91	or proceeding would result in a substantial likelihood of severe
92	emotional, mental, or physical harm, in addition to findings
93	pursuant to s. 90.804(1).
94	(b)  In a criminal action, the defendant shall be notified
95	at least 10 days before the trial that a statement that
96	qualifies as a hearsay exception pursuant to this subsection
97	will be offered as evidence at trial. The notice must include a
98	written statement of the content of the victim's statement, the
99	time at which the statement was made, the circumstances
100	surrounding the statement which indicate its reliability, and
101	such other particulars as necessary to provide full disclosure
102	of the statement.
103	(c)  The court shall make specific findings of fact, on the
104	record, as to the basis for its ruling under this subsection.
105	Section 2.  Paragraph (f) is added to subsection (2) of
106	section 90.804, Florida Statutes, to read:
107	90.804  Hearsay exceptions; declarant unavailable.-
108	(2)  HEARSAY EXCEPTIONS.-The following are not excluded
109	under s. 90.802, provided that the declarant is unavailable as a
110	witness:
111	(f)  Forfeiture by wrongdoing.-A statement offered against
112	a party that has engaged or acquiesced in wrongdoing that was
113	intended to, and did, procure the unavailability of the
114	declarant as a witness. In a criminal case, upon proof by a
115	preponderance of the evidence that the accused, at any time,
116	assaulted an unavailable witness, or threatened to inflict
117	physical harm upon an unavailable witness or any member of the
118	witness's immediate family, the court may presume forfeiture of
119	any objection under the hearsay rule or the confrontation clause
120	of the State Constitution. This presumption may be rebutted by
121	proof by a preponderance of the evidence that the accused did
122	not engage in, and did not acquiesce in, the wrongdoing intended
123	to cause the witness not to testify.
124	Section 3.  Section 90.807, Florida Statutes, is created to
125	read:
126	90.807  Residual exception.-A statement that is not
127	specifically covered by s. 90.803 or s. 90.804 but that has
128	equivalent circumstantial guarantees of trustworthiness is not
129	excluded by the hearsay rule if the court determines that the
130	statement is offered as evidence of a material fact, the
131	statement is more probative on the point for which it is offered
132	than any other evidence that the proponent can procure through
133	reasonable efforts, and the general purposes of these rules and
134	the interests of justice will best be served by admission of the
135	statement into evidence. However, a statement may not be
136	admitted under this exception unless the party seeking admission
137	makes known such intention, including the particulars of the
138	statement and the declarant's name and address, to the adverse
139	party sufficiently in advance of the trial or hearing to provide
140	the adverse party with a fair opportunity to deny or explain the
141	statement.
142	Section 4.  This act shall take effect July 1, 2012.

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