Special Protections for Victim Depositions

When the Defendant is charged with a sex crime against a child sexual offense victim or person with intellectual disability, the defense attorney might wishes to take the deposition of the alleged victim.

The State might oppose the deposition of the alleged victim pursuant to Section 92.55(6), Florida Statutes, which became effective July 1, 2023. The defense might also file a motion attacking the constitutionality of the new statute.

The State will argue that the purpose of the statute is to create substantive rights for those minors 16 and younger who are the alleged victims of sexual crimes. When enacting the legislation, the Florida Legislature sought to further a legitimate public policy objective by protecting young victims of sexual abuse from giving a deposition about facts concerning their abuse.

Defense attorneys have argued that Section 92.55(6) is unconstitutional because it encroaches upon the Florida Supreme Court’s exclusive authority to promulgate rules regulating the practice of law and procedure. Since the statute is not substantive but rather procedural, the Florida Legislature usurped the Florida Supreme Court’s rulemaking authority by imposing limitations on the discovery and deposition process in criminal cases, which are otherwise governed by Rule 3.220 of the Florida Rules of Criminal Procedure.

The courts have found that Section 92.55(6) is a substantive addition of rights that apply within a procedural process. The amended statute not only declares the rights of a select group of individuals, but it also places conditions on those rights and would permit depositions under limited circumstances. Courts have found that while discovery process for criminal cases is largely procedural, some rights to individuals within that process can be conveyed by legislative enactment without infringing upon the Florida Supreme Court’s rulemaking authority.

In Section (s.) 92.55, Florida Statutes (F.S.), the Florida Legislature enacted special protections in criminal and civil proceedings involving victims or witnesses under 18, person with intellectual disability, and sexual offense victims.  For purposes of the special protections in Section 92.55, the term “sexual offense victim or witness” means a person who was under the age of 18 when he or she was the victim of or a witness to a sexual offense. See Section 92.55(1)(a).

The term “sexual offense” means any offense specified in:

• Section 775.21(4)(a)1. or Section 943.0435(1)(h)1.a.(I) including any capital, life, or first degree felony violation, or any attempt thereof, where the victim is a minor, of:
  • Section 787.01 (kidnapping);
  • Section 787.02 (false imprisonment):
  • Section 794.011 (sexual battery);
  • Section 800.04 (lewd or lascivious offenses committed upon or in the presence of persons less than 16 years of age);
  • Section 847.0145 (selling or buying of minors); or
  • a violation of a similar law of another jurisdiction.

Under Section 775.21(2), the court may enter any order necessary to protect specified victims or witnesses in any judicial proceeding or other official proceeding from severe emotional or mental harm due to the presence of the defendant if the victim or witness is required to testify in open court. Such orders must relate to the taking of testimony and include, but are not limited to:

• Interviewing or the taking of depositions as part of a civil or criminal proceeding.
• Examination and cross-examination for the purpose of qualifying as a witness or testifying in any proceeding.
• The use of testimony taken outside of the courtroom, including proceedings under ss. 92.53 and 92.54.

Under Section 775.21(6)(a), in any criminal proceeding, before the defendant may take a discovery deposition of a victim of a sexual offense who is under the age of 16, the court must conduct a hearing to determine whether it is appropriate to take a deposition of the victim and, if so, whether to order any limitations or other specific conditions under which the victim’s deposition may be conducted.

Under Section 775.21(6)(c), if the victim of a sexual offense is under the age of 12, there is a presumption that the taking of the victim’s deposition is not appropriate if:

• The state has not filed a notice of intent to seek the death penalty; and
• A forensic interview of the sexual offense victim is available to the defendant.

Under Section 775.21(d), if the court determines the taking of the victim’s deposition is appropriate, in addition to any other condition required by law, the court may order limitations or other specific conditions including, but not limited to:

• Requiring the defendant to submit questions to the court before the victim’s deposition.
• Setting the appropriate place and conditions under which the victim’s deposition may be conducted.
• Permitting or prohibiting the attendance of any person at the victim’s deposition.
• Limiting the duration of the victim’s deposition.
• Any other condition the court finds just and appropriate.

In all other cases, when determining whether it is appropriate to take a deposition of a victim of a sexual offense who is under the age of 16, the court must consider:

• The mental and physical age and maturity of the victim.
• The nature and duration of the offense.
• The relationship of the victim to the defendant.
• The complexity of the issues involved.
• Whether the evidence sought is reasonably available by other means, including whether the victim was the subject of a forensic interview related to the sexual offense.
• Any other factors the court deems relevant to ensure the protection of the victim and the integrity of the judicial process.

The attorneys at Sammis Law Firm are familiar with the rules regarding the rights of victims in Florida.

This article was last updated on Monday, May 20, 2024.