Florida Senate - 2023                                     SB 134
       
       
        
       By Senator Osgood
       
       
       
       
       
       32-00413-23                                            2023134__
    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 at the time of the request for a deposition
   16         and who is a victim in a prosecution of human
   17         trafficking or specified sexual offenses is considered
   18         a sensitive witness; providing requirements that must
   19         be met before taking the deposition of a sensitive
   20         witness; providing procedures if certain matters
   21         pertaining to the deposition cannot be resolved;
   22         authorizing a victim to have counsel and a victim
   23         advocate present at the deposition; requiring that the
   24         victim be treated as a party at hearings on motions
   25         pertaining to the deposition; authorizing the victim
   26         to apply to the court for a protective order;
   27         requiring that a subpoena or other notice of the
   28         deposition given to the victim include specified
   29         information; authorizing a court to issue protective
   30         orders, which may include specified conditions;
   31         authorizing the court to consider any factor it deems
   32         relevant in ruling on the protective order;
   33         prohibiting certain self-represented defendants from
   34         directly deposing a victim; requiring the court to
   35         appoint counsel for the defendant for such
   36         depositions; providing an effective date.
   37          
   38  Be It Enacted by the Legislature of the State of Florida:
   39  
   40         Section 1. Section 787.301, Florida Statutes, is created to
   41  read:
   42         787.301 Deposing victims of human trafficking or specified
   43  sexual offenses.—
   44         (1)(a)An individual who is 17 years of age or younger at
   45  the time of a request for a deposition and who is a victim of
   46  any of the following offenses may not be deposed, except by
   47  agreement of the parties or after approval of the court pursuant
   48  to paragraph (b):
   49         1.Section 787.06, relating to human trafficking.
   50         2.Section 794.011, relating to sexual battery.
   51         3.Section 800.04, relating to lewd or lascivious offenses
   52  committed upon or in the presence of persons younger than 16
   53  years of age.
   54         (bA court may not approve a deposition under this
   55  subsection unless the court finds that the testimony of the
   56  victim is necessary to assist the trial, that the evidence
   57  sought is not reasonably available by other means, and that the
   58  probative value of the testimony outweighs the potential
   59  detriment to the victim of being deposed. In determining whether
   60  to approve a deposition under this subsection, the court must
   61  consider the availability of recorded statements of the victim
   62  and the complexity of the issues involved.
   63         (c) If a deposition is approved under this subsection, the
   64  court must issue a protective order to protect the victim from
   65  emotional harm, annoyance, embarrassment, oppression, invasion
   66  of privacy, undue burden of expense, or waste of time. If a
   67  deposition is approved, the court must appoint an attorney to
   68  represent the victim at the deposition. The defendant may not be
   69  physically present at the deposition, unless agreed to by the
   70  parties or upon entry of an order by the court for good cause
   71  shown.
   72         (d)The protective order may include, but need not be
   73  limited to, any of the following conditions, that the
   74  deposition:
   75         1. Be taken only on specified terms and conditions,
   76  including a designation of the time, place, and manner of the
   77  deposition;
   78         2. Be taken only by written questions;
   79         3. Specifically include, exclude, or be limited to inquiry
   80  into certain matters;
   81         4. Be conducted with only such persons present as the court
   82  may designate; or
   83         5. Be sealed after it has been taken, whether a tape or
   84  transcript, until further order of the court.
   85         (2)(a)An individual who is 17 years of age or younger at
   86  the time of a request for a deposition and who is a victim in a
   87  prosecution for any of the following offenses is considered a
   88  sensitive witness:
   89         1.Section 787.06, relating to human trafficking.
   90         2.Section 794.011, relating to sexual battery.
   91         3.Section 800.04, relating to lewd or lascivious offenses
   92  committed upon or in the presence of persons younger than 16
   93  years of age.
   94         (b)Before taking the deposition of a sensitive witness,
   95  the party seeking to take the deposition must consult with the
   96  other parties and the victim in an effort to reach an agreement
   97  on the time, place, manner, and scope of the deposition. If an
   98  agreement cannot be reached, the party seeking to take the
   99  deposition must so advise the court and specify the matters that
  100  are in dispute. The court then shall issue an order regulating
  101  the taking of the deposition, including, in its discretion, a
  102  requirement that the deposition be taken in the presence of a
  103  judge or special master.
  104         (c)A victim may have counsel present at the deposition and
  105  may make legal objections to questions. The victim must be
  106  treated as a party at hearings on motions pertaining to the
  107  deposition. A victim may have a victim advocate present during
  108  the deposition. The victim may apply to the court for a
  109  protective order if he or she believes that he or she is being
  110  subjected to harassment or intimidation. A subpoena issued, or
  111  any other notice of the deposition given to the victim, must
  112  include notice that the victim may have the assistance of
  113  counsel for the deposition, may have a victim advocate present
  114  for the deposition, and may seek a protective order.
  115         (d)1.At the request of a party or the victim, for good
  116  cause shown, the court may issue any protective order that
  117  justice requires to protect a party or the victim from emotional
  118  harm, annoyance, embarrassment, oppression, invasion of privacy,
  119  undue burden of expense, or waste of time. A protective order
  120  may include, but need not be limited to, any of the following
  121  conditions, that the deposition:
  122         a. Be taken only on specified terms and conditions,
  123  including a designation of the time, place, and manner of the
  124  deposition;
  125         b. Be taken only by written questions;
  126         c. Specifically include, exclude, or be limited to inquiry
  127  into certain matters;
  128         d. Be conducted with only such persons present as the court
  129  may designate;
  130         e. Be sealed after it has been taken, whether a tape or
  131  transcript, until further order of the court; or
  132         f. Not be taken.
  133         2.In ruling on such protective order, the court may
  134  consider any factor it deems relevant, including, but not
  135  limited to:
  136         a.The age, health, level of intellectual function, and
  137  emotional condition of the victim;
  138         b.Whether the victim has knowledge material to the proof
  139  of or defense to any essential element of the crime;
  140         c.Whether the victim has provided a full written, taped,
  141  or transcribed account of his or her proposed testimony at
  142  trial;
  143         d.Whether the victim’s testimony will relate only to a
  144  peripheral issue in the case; or
  145         e.Whether an informal interview or telephone conference
  146  with the victim will suffice for the purposes of discovery in
  147  the case.
  148         (3)A self-represented defendant in a prosecution for an
  149  offense specified in subsection (1) or subsection (2) may not
  150  depose the victim directly. In such a case, the court must
  151  appoint counsel for the defendant for the purpose of such
  152  deposition.
  153         Section 2. This act shall take effect July 1, 2023.