Florida Senate - 2021 SB 1178 By Senator Baxley 12-00846B-21 20211178__ 1 A bill to be entitled 2 An act relating to deposing victims of certain 3 offenses; creating s. 787.301, F.S.; prohibiting the 4 deposing of an individual who, at the time of the 5 request for the deposition, is 17 years of age or 6 younger and has been a victim of human trafficking or 7 specified sexual offenses; providing exceptions; 8 prohibiting a court from approving such depositions 9 unless it makes certain findings; requiring a court to 10 issue a protective order for the victim if the court 11 approves a deposition of the victim; providing 12 requirements for such depositions; authorizing the 13 protective order to include specified conditions; 14 providing that an individual who is 17 years of age or 15 younger and who is a victim in a prosecution of human 16 trafficking or specified sexual offenses is considered 17 a sensitive witness; providing requirements that must 18 be met before taking the deposition of a sensitive 19 witness; providing procedures if matters pertaining to 20 the deposition cannot be resolved; authorizing a 21 victim to have counsel and a victim advocate present 22 at the deposition; requiring that the victim be 23 treated as a party at hearings on motions pertaining 24 to the deposition; authorizing the victim to apply to 25 the court for a protective order; requiring that a 26 subpoena or other notice of the deposition given to 27 the victim include specified information; authorizing 28 a court to issue protective orders, which may include 29 specified conditions; authorizing the court to 30 consider any factor it deems relevant in ruling on the 31 protective order; prohibiting certain self-represented 32 defendants from directly deposing a victim; requiring 33 the court to appoint counsel for the defendant for 34 such depositions; providing an effective date. 35 36 Be It Enacted by the Legislature of the State of Florida: 37 38 Section 1. Section 787.301, Florida Statutes, is created to 39 read: 40 787.301 Deposing victims of human trafficking or specified 41 sexual offenses.— 42 (1)(a) An individual who is 17 years of age or younger at 43 the time of a request for a deposition and who is a victim of 44 any of the following offenses may not be deposed, except by 45 agreement of the parties or after approval of the court pursuant 46 to paragraph (b): 47 1. Section 787.06, relating to human trafficking. 48 2. Section 794.011, relating to sexual battery. 49 3. Section 800.04, relating to lewd or lascivious offenses 50 committed upon or in the presence of persons younger than 16 51 years of age. 52 (b) A court may not approve a deposition under this 53 subsection unless the court finds that the testimony of the 54 victim is necessary to assist the trial, that the evidence 55 sought is not reasonably available by any other means, and that 56 the probative value of the testimony outweighs the potential 57 detriment to the victim of being deposed. In determining whether 58 to approve a deposition under this subsection, the court must 59 consider the availability of recorded statements of the victim 60 and the complexity of the issues involved. 61 (c) If a deposition is approved under this subsection, the 62 court must issue a protective order to protect the victim from 63 emotional harm, unnecessary annoyance, embarrassment, 64 oppression, invasion of privacy, or undue burden of expense or 65 waste of time. If a deposition is approved, the court must 66 appoint an attorney to represent the victim at the deposition. 67 The defendant may not be physically present at the deposition, 68 unless agreed to by the parties or upon entry of an order by the 69 court for good cause shown. 70 (d) The protective order may include, but need not be 71 limited to, any of the following conditions: 72 1. That the deposition be taken only on specified terms and 73 conditions, including a designation of the time, place, and 74 manner of the deposition; 75 2. That the deposition be taken only by written questions; 76 3. That the deposition specifically include, exclude, or be 77 limited to inquiry into certain matters; 78 4. That the deposition be conducted with only such persons 79 present as the court may designate; or 80 5. That after the deposition has been taken, the tape or 81 transcript be sealed until further order of the court. 82 (2)(a) An individual who is 17 years of age or younger at 83 the time of a request for a deposition and who is a victim in a 84 prosecution for any of the following offenses is considered a 85 sensitive witness: 86 1. Section 787.06, relating to human trafficking. 87 2. Section 794.011, relating to sexual battery. 88 3. Section 800.04, relating to lewd or lascivious offenses 89 committed upon or in the presence of persons younger than 16 90 years of age. 91 (b) Before taking the deposition of a sensitive witness, 92 the party seeking to take the deposition must consult with the 93 other parties and the victim in an effort to reach an agreement 94 on the time, place, manner, and scope of the deposition. If an 95 agreement cannot be reached, the party seeking to take the 96 deposition must so advise the court and specify the matters that 97 are in dispute. The court then shall issue an order regulating 98 the taking of the deposition, including, in its discretion, a 99 requirement that the deposition be taken in the presence of a 100 judge or special master. 101 (c) A victim may have counsel present at the deposition and 102 may make legal objections to questions. The victim must be 103 treated as a party at hearings on motions pertaining to the 104 deposition. A victim may have a victim advocate present during 105 the deposition. The victim may apply to the court for a 106 protective order if he or she believes that he or she is being 107 subjected to harassment or intimidation. A subpoena issued, or 108 any other notice of the deposition given to the victim, must 109 include notice that the victim may have the assistance of 110 counsel for the deposition, may have a victim advocate present 111 for the deposition, and may seek a protective order. 112 (d)1. At the request of a party or the victim, for good 113 cause shown, the court may issue any protective order that 114 justice requires to protect a party or the victim from emotional 115 harm, unnecessary annoyance, embarrassment, oppression, invasion 116 of privacy, undue burden of expense, or waste of time. A 117 protective order may include, but need not be limited to, any of 118 the following conditions: 119 a. That the deposition be taken only on specified terms and 120 conditions, including a designation of the time, place, and 121 manner of the deposition; 122 b. That the deposition be taken only by written questions; 123 c. That the deposition specifically include, exclude, or be 124 limited to inquiry into certain matters; 125 d. That the deposition be conducted with only such persons 126 present as the court may designate; 127 e. That after the deposition has been taken, the tape or 128 transcript be sealed until further order of the court; or 129 f. That the deposition not be taken. 130 2. In ruling on such protective order, the court may 131 consider any factor it deems relevant, including, but not 132 limited to: 133 a. The age, health, level of intellectual function, and 134 emotional condition of the victim; 135 b. Whether the victim has knowledge material to the proof 136 of or defense to any essential element of the crime; 137 c. Whether the victim has provided a full written, taped, 138 or transcribed account of his or her proposed testimony at 139 trial; 140 d. Whether the victim’s testimony will relate only to a 141 peripheral issue in the case; or 142 e. Whether an informal interview or telephone conference 143 with the victim will suffice for the purposes of discovery in 144 the case. 145 (3) A self-represented defendant in a prosecution for an 146 offense specified in subsection (1) or subsection (2) may not 147 depose the victim directly. In such a case, the court must 148 appoint counsel for the defendant for the purpose of such 149 deposition. 150 Section 2. This act shall take effect July 1, 2021.