Florida Senate - 2020 SB 258 By Senator Bracy 11-00089-20 2020258__ 1 A bill to be entitled 2 An act relating to statements made by a criminal 3 defendant; amending s. 90.803, F.S.; requiring that 4 hearsay statements made during certain custodial 5 interrogations comply with specified requirements in 6 order to be admissible; defining terms; specifying 7 that an oral, written, or sign-language statement made 8 by an interrogee during a custodial interrogation is 9 inadmissible as evidence against such person unless 10 certain requirements are met; authorizing the 11 prosecution to rebut a presumption of inadmissibility 12 under certain circumstances; defining the term “good 13 cause”; providing for the admissibility of certain 14 statements of an interrogee when obtained by federal 15 officers or investigative personnel from other 16 jurisdictions; requiring the preservation of 17 electronic recordings until certain requirements are 18 met; providing that admissibility is not precluded for 19 certain statements of an interrogee; amending s. 20 90.804, F.S.; requiring that any statements made 21 during a custodial interrogation comply with certain 22 requirements in order for the statement to be 23 admissible; providing a legislative finding of 24 important state interest; specifying the purpose of 25 the act; providing an effective date. 26 27 Be It Enacted by the Legislature of the State of Florida: 28 29 Section 1. Subsection (18) of section 90.803, Florida 30 Statutes, is amended to read: 31 90.803 Hearsay exceptions; availability of declarant 32 immaterial.—The provision of s. 90.802 to the contrary 33 notwithstanding, the following are not inadmissible as evidence, 34 even though the declarant is available as a witness: 35 (18) ADMISSIONS.—A statement that is offered against a 36 party and is: 37 (a) The party’s own statement in either an individual or a 38 representative capacity; 39 (b) A statement of which the party has manifested an 40 adoption or belief in its truth; 41 (c) A statement by a person specifically authorized by the 42 party to make a statement concerning the subject; 43 (d) A statement by the party’s agent or servant concerning 44 a matter within the scope of the agency or employment thereof, 45 made during the existence of the relationship;or46 (e) A statement by a person who was a coconspirator of the 47 party during the course, and in furtherance, of the conspiracy. 48 Upon request of counsel, the court shall instruct the jury that 49 the conspiracy itself and each member’s participation in it must 50 be established by independent evidence, either before the 51 introduction of any evidence or before evidence is admitted 52 under this paragraph; or 53 (f) The party’s own statement that is the result of a 54 custodial interrogation conducted in compliance with this 55 paragraph. 56 1. As used in this paragraph, the term: 57 a. “Custodial interrogation” or “interrogation” means 58 questioning of an interrogee in circumstances in which a 59 reasonable person placed in the same position would believe that 60 his or her freedom of action was curtailed to a degree 61 associated with actual arrest. 62 b. “Electronic recording” means a true, complete, and 63 accurate reproduction of a custodial interrogation created 64 through the use of videotape, audiotape, or digital or other 65 media. 66 c. “Interrogation facility” means a law enforcement 67 facility, correctional facility, community correctional center, 68 detention facility, law enforcement vehicle, courthouse, or 69 other secure environment. 70 d. “Interrogee” means a person who, at the time of the 71 interrogation and concerning any topic of the interrogation, is: 72 (I) Charged with a felony; or 73 (II) Suspected by those conducting the interrogation of 74 involvement in a felony. 75 e. “Involvement” means participation in a crime as a 76 principal or an accessory. 77 2. An oral, written, or sign-language statement made by an 78 interrogee during a custodial interrogation is inadmissible as 79 evidence against such person in a criminal proceeding unless all 80 of the following requirements are met: 81 a. The interrogation is reproduced in its entirety by means 82 of an electronic recording. 83 b. Immediately before the interrogation begins, and as part 84 of the electronic recording, the interrogee is given all 85 constitutionally required warnings and the interrogee knowingly, 86 intelligently, and voluntarily waives any rights set out in the 87 warnings that would, absent such waiver, otherwise preclude the 88 admission of the statement. 89 c. The electronic recording device was capable of making a 90 true, complete, and accurate recording of the interrogation, the 91 operator of such device was competent, and the electronic 92 recording has not been altered. 93 d. All persons recorded on the electronic recording who are 94 material to the custodial interrogation are identified on the 95 electronic recording. 96 e. During discovery pursuant to Rule 3.220, Florida Rules 97 of Criminal Procedure, but under no circumstances later than the 98 20th day before the date of the proceeding in which the 99 prosecution intends to offer the statement, the attorney 100 representing an interrogee is provided with true, complete, and 101 accurate copies of all electronic recordings of the interrogee 102 made pursuant to this paragraph. 103 3.a. In the absence of a true, complete, and accurate 104 electronic recording, the prosecution may rebut a presumption of 105 inadmissibility only by offering clear and convincing evidence 106 that: 107 (I) The statement was both voluntary and reliable, made 108 after the interrogee was fully advised of all constitutionally 109 required warnings; and 110 (II) Law enforcement officers had good cause not to 111 electronically record all or part of the interrogation. 112 b. For purposes of sub-subparagraph a., the term “good 113 cause” includes, but is not limited to, the following: 114 (I) The interrogation occurred in a location other than an 115 interrogation facility under exigent circumstances where the 116 requisite recording equipment was not readily available and 117 there was no reasonable opportunity to move the interrogee to an 118 interrogation facility or to another location where the 119 requisite recording equipment was readily available; 120 (II) The interrogee refused to have the interrogation 121 electronically recorded, and such refusal was electronically 122 recorded; 123 (III) The failure to electronically record an entire 124 interrogation was the result of equipment failure, and obtaining 125 replacement equipment was not feasible; or 126 (IV) The statement of the interrogee was obtained in the 127 course of intercepting wire, oral, or electronic communication 128 which was being conducted pursuant to a properly obtained and 129 issued warrant or which required no warrant and was otherwise 130 legally conducted. 131 4. Notwithstanding any other provision of this paragraph, a 132 written, oral, or sign-language statement of the interrogee 133 which 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 that jurisdiction, acting 138 independently of law enforcement personnel of this state, in 139 compliance with the laws of that 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 court; 155 b. Before a grand jury; 156 c. Which is the res gestae of the arrest or the offense; or 157 d. Which does not arise from a custodial interrogation or 158 which is a spontaneous statement. 159 Section 2. Paragraph (c) of subsection (2) of section 160 90.804, Florida Statutes, is amended to read: 161 90.804 Hearsay exceptions; declarant unavailable.— 162 (2) HEARSAY EXCEPTIONS.—The following are not excluded 163 under s. 90.802, provided that the declarant is unavailable as a 164 witness: 165 (c) Statement against interest.—A statement which, at the 166 time of its making, was so far contrary to the declarant’s 167 pecuniary or proprietary interest or tended to subject the 168 declarant to liability or to render invalid a claim by the 169 declarant against another, so that a person in the declarant’s 170 position would not have made the statement unless he or she 171 believed it to be true. A statement tending to expose the 172 declarant to criminal liability and offered to exculpate the 173 accused is inadmissible, unless corroborating circumstances show 174 the trustworthiness of the statement. However, any statement 175 made during a custodial interrogation of an interrogee as 176 defined in s. 90.803(18)(f) must comply with that paragraph when 177 required in order for the statement to be admissible under this 178 paragraph. 179 Section 3. (1) The Legislature finds that the reputations 180 of countless hard-working law enforcement officers are 181 needlessly attacked by criminal suspects who falsely claim the 182 officers violated the suspects’ constitutional rights, that 183 limited trial court resources are squandered in hearings on 184 motions to suppress statements made by criminal suspects who are 185 able to make such claims because no recordings of their 186 interrogations exist, and, further, that judicial resources are 187 squandered when criminal suspects, after having been convicted 188 of their crimes, file frivolous and unnecessary appeals. This 189 process costs the taxpayers of this state untold dollars each 190 year, dollars that could be better spent enhancing the 191 administration of the criminal justice system. Low-cost 192 technology is now available in every jurisdiction to record each 193 custodial interrogation of a criminal suspect, eliminating this 194 gross waste of resources and enhancing the reliability and 195 reputation of law enforcement officers. Therefore, the 196 Legislature determines and declares that this act fulfills an 197 important state interest. 198 (2) The purpose of this act is to require the creation of 199 an electronic record of an entire custodial interrogation in 200 order to eliminate disputes about interrogations, thereby 201 improving prosecution of the guilty while affording protection 202 to the innocent and increasing court efficiency. 203 Section 4. This act shall take effect July 1, 2020.