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; or
   46         (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.