Florida’s Version of Marsy’s Law
Florida’s version of Marsy’s Law caused unintended consequences impacting speedy trial rights, plea negotiations, criminal appeals, post-conviction motions, and how public records are distributed.
Amendment 6 removed the constitutional language that victims’ rights exist “to the extent that these rights do not interfere with the constitutional rights of the accused” that had previously been contained in Art. I, § 16(b), Fla. Const. Prior to the passage of Marsy’s Law, that language ensured that when rights collide, the rights of the accused prevail.
Florida’s version of Marsy’s Law clarifies the victim’s right to hire an attorney to represent the victim and appear in court for important court dates from the initial bond hearing through trial. Marsy’s Law specifically provides that the victim’s attorney can seek to enforce the victim’s rights under Marsy’s law or any other rights otherwise provided by Florida law.
For example, if the victim seeks to enforce their rights, Marsy’s law requires the court or other authority over the case to:
- act promptly such a request;
- affording a remedy by due course of law for the violation of any right; and
- clearly state on the record the reasons for any decision regarding the disposition of a victim’s right.
Florida’s version of Marsy’s Law gives the victim the following rights related to retaining their own attorney:
11) The right to be informed of these rights, and to be informed that victims can seek the advice of an attorney with respect to their rights. This information shall be made available to the general public and provided to all crime victims in the form of a card or by other means intended to effectively advise the victim of their rights under this section.
(c) The victim, the retained attorney of the victim, a lawful representative of the victim, or the office of the state attorney upon request of the victim, may assert and seek enforcement of the rights enumerated in this section and any other right afforded to a victim by law in any trial or appellate court, or before any other authority with jurisdiction over the case, as a matter of right. The court or other authority with jurisdiction shall act promptly on such a request, affording a remedy by due course of law for the violation of any right. The reasons for any decision regarding the disposition of a victim’s right shall be clearly stated on the record.
(d) The granting of the rights enumerated in this section to victims may not be construed to deny or impair any other rights possessed by victims. The provisions of this section apply throughout criminal and juvenile justice processes, are self- executing, and do not require implementing legislation. This section may not be construed to create any cause of action for damages against the state or a political subdivision of the state, or any officer, employee, or agent of the state or its political subdivisions.
Amendment 6 superseded many of the existing constitutional and statutory schemes without explaining the accompanying protection of an accused’s rights to due process.
Furthermore, Marsy’s Law expands the definition of “victim” because it fails to limit the definition to natural persons and might include companies or corporations. Under Florida law, the term “person” includes “individuals, children, firms, associations, joint adventures, partnerships, estates, trusts, business trusts, syndicates, fiduciaries, corporations, and all other groups or combinations.” § 1.01, Fla. Stat. (2018).
The criminal defense attorney might file a Motion for Protective Order allowing the alleged victim’s counsel to be present at a deposition, but prohibiting that attorney from speaking, making objections, or instructing their client on how to answer questions.
The fact that the victim has hired their own attorney might open the door for the defendant’s attorney to explore that relationship in order to show motive or bias.
Unanswered questions include:
- How the victim’s right to participate in plea negotiations might impact law enforcement’s ability to negotiate plea deals for cooperation or useful information; and
- Whether prosecutors might lose absolute immunity in favor of qualified immunity because of the participation of the victim’s attorney.
To learn more, read another article by an attorney explaining the rights of the victim in a criminal case in Florida.
How to Invoke Your Rights under Marsy’s Law in Florida
After Marsy’s Law took effect in Florida, law enforcement agencies started preparing the “rights form” for witnesses and alleged victims. The form will often list the date of the alleged offense, the case number, and the report number. The form might provide:
IF YOU ARE THE VICTIM / WITNESS OF A CRIME OR THE NEXT OF KIN OF A HOMICIDE VICTIM, YOU HAVE CERTAIN RIGHTS (FLORIDA STATUTE CHAPTER 960 and Article I, Section 16, Florida Constitution).
THESE RIGHTS ARE EXPLAINED IN THE RIGHTS OF VICTIMS / WITNESSES BROCHURE YOU WILL RECEIVE FROM THE PERSON YOU ARE REPORTING YOUR CASE TO. PLEASE READ AND ANSWER THE FOLLOWING QUESTIONS AND SIGN BELOW THAT YOU HAVE DONE SO.
- On Scene Arrest Notification: I have been notified that a suspect was arrested in reference to this case, and I have been informed that I may attend the First Appearance Hearing, and to call 352-521-4333 or 727-847-8158 for information regarding the hearing.
- Please Answer The Following:
- I want to be notified if an arrest is made at a later date in reference this case. o Yes o No o N/A
- I want to be notified if a defendant is released in reference to this case. o Yes o No
- I have received a Rights of Victims and Witnesses Brochure. o Yes o No
- I understand the rights afforded to me as a victim of sexual battery (FSS 794.052) o Yes o No o N/A
- I understand the rights afforded to me in Article I, Section 16, Fl. Constitution o Yes o No
- Public Records Exemption:
- If you are the victim of certain sex crimes or child abuse, your name, address, and other identifying information is exempt from public records release per Florida State Statute 119.071(2)(h)1.
- As a victim, you have the right to prevent the disclosure of information or records that could be used to locate or harass you or your family, or which could disclose confidential or privileged information about you. Article I, Section 16, Fl. Constitution.
If you are a victim of one or more of the crimes specified in Florida State Statute 119.071(2)(j)1, you may request an exemption prohibiting the disclosure of information to the general public that reveals your home and work telephone numbers, home and work addresses, and personal assets not otherwise held confidential or exempt from the provisions of the “Public Records Law”, F.S.S. 119.07(1).
Those crimes listed in Florida State Statute 119.071(2)(j)1 include:
- sexual battery
- aggravated child abuse
- aggravated battery
- aggravated stalking
- harassment – harassing/obscene telephone calls
- domestic violence
Please note this exemption may not be used to exempt the identity or name of the victim [although other statutory provisions may, for certain more limited offenses, render the identity of the victim exempt or confidential without the need for a request].
Do you wish to exercise this additional exemption? (Please check one) o Yes o No o N/A
I CERTIFY THAT I HAVE RECEIVED A “RIGHTS OF VICTIMS / WITNESSES IN THE CRIMINAL JUSTICE SYSTEM” BROCHURE AND THAT I HAVE READ, UNDERSTAND, AND ANSWERED THE ABOVE QUESTIONS AND INFORMATION.
VICTIM / WITNESS (SIGNATURE):
REPORTING OFFICER / PST (SIGNATURE): ID#:
Submit This Form To
Pasco Sheriff’s Office
Marsy’s Law Exemption from Public Inspection
Amendment 6 (Marcy’s Law) of the Florida Constitution Section 16, Article 1, broadens those exempt from disclosure of personal information to all victims of crime as listed under Florida Constitutional Victim’s Rights:
- The right to prevent the disclosure of information or records that could be used to locate or harass the victim or the victim’s family, or which could disclose confidential or privileged information of the victim.
To exercise the victim’s Constitutional Rights, the victim must complete an exemption form, if not done so at the time of the report.
Florida Statue 119.071(2)j states any information which reveals the home or employment address and telephone number or personal assets of a person who is/has been the victim of sexual battery, aggravated child abuse, stalking/aggravated stalking, harassment, aggravated battery, or simple/aggravated domestic violence is exempt from public inspection and examination.
Any information that is not exempt or confidential, but that reveals home or employment address or telephone number, or personal assets of a person who is/has been the victim of sexual battery, aggravated child abuse, stalking/aggravated stalking, harassment, aggravated battery, or simple/aggravated domestic violence is exempt upon written request by the victim to the custodian of records, which must include official verification that an applicable crime has occurred.
Such information shall remain exempt for 5 years, after which it will become available to the public. This exemption also applies to current and former U.S. military personnel, as well as their spouses and dependents who served after 9-11-2001.
The exemption is for home address, telephone numbers, dates of birth, and place of employment. The service member must submit, to the agency which has custody of the information, a written request to exempt the information, along with a written statement that the service member has made reasonable efforts to protect the information from being accessible through other means available to the public.
The names, addresses, and telephone numbers of victims of misdemeanor and aggravated stalking are exempt. Any and all information regarding the identity of a human trafficking victim under the age of 18 is included in this exemption.
Notice of Invocation of Marcy’s Law in Hillsborough County, FL
At least in Hillsborough County, FL, ANDREW H. WARREN, STATE ATTORNEY of the Thirteenth Judicial Circuit of Florida, in and for Hillsborough County, by and through the undersigned Assistant State Attorney, might file a NOTICE OF INVOCATION OF MARSY’S LAW.
Pursuant to the 2018 amendment of Article I, Section 16, Florida Constitution, referred to as “Marsy’s Law”, the filing provides Notice of Victim’s Invocation of Marsy’s Law:
- Pursuant to the above Florida constitutional amendment known as Marsy’s Law, confidential crime victim information is determined to be confidential on the grounds that confidentiality is required to comply with the Florida Constitution.
- Therefore, the State of Florida, at the specific request of the victim in this case, indicates the existence of confidential crime victim information, and requests that the clerk of court shall designate and maintain the confidentiality of any such information contained within the initial charging document including, but not limited to, name, date of birth, address, phone number, and any other potential identifying information.
- Therefore, allowing the victim to exercise his or her right to prevent the disclosure of information or records that could be used to locate or harass the victim or the victim’s family, or which could disclose confidential or privileged information of the victim pursuant to the Florida Constitution Article I, § 16.
Practical Effect of Marsy’s Law
One of the attorneys in the firm, Leslie Sammis was recently invited to speak in a panel discussion on Marsy’s Law at The Bruce R. Jacob-Chris W. Altenbernd Criminal Appellate American Inn of Court meeting on November 21, 2019. The panel included Laura Roe, the Police Legal Counsel for the St. Petersburg Police Department, and Mary Beth Kuenzel, the Clerk of Court for the Second DCA.
The Bruce R. Jacob Criminal Appellate American Inn of Court promotes professionalism and civility among the lawyers who practice criminal appellate law in Florida’s Second District Court of Appeal. The masters and barristers include assistant public defenders, assistant attorneys general, staff attorneys, and judges of the Second District.
The discussion was titled “Marsy’s Law: Protecting Victims’ Rights: The Practical Effect of Florida’s Adoption of Amendment 6 on Criminal Practice.” The panel discussed the practical impact of Amendment 6 or Florida’s version of Marsy’s Law including the greatest benefits and burdens, unexpected impacts, and how resources have been diverted to deal with Marsy’s Law.
The participants on the panel discussed how the provisions of Marsy’s Law might impact criminal cases at both the trial or appellate level.
This article was last updated on Tuesday, October 5, 2021.