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Bill to limit depositions of alleged child sexual assault victims moves in the Senate

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Sen. Danny Burgess

Sen. Danny Burgess

A proposal to bar criminal defense attorneys from deposing alleged child sexual assault victims — without a showing of good cause — is gaining steam in the Florida Senate.

Sen. Danny Burgess, a Zephyrhills Republican and Army JAG officer, tacked the proposal onto SB 510, “Victim’s Right to Candor in Criminal Proceedings,” on April 19.

The Senate Rules Committee approved the amendment with a voice vote, despite critics who warned that it could harm more victims and witnesses than it would help. The committee voted 18-0 to send the combined measure to the Senate floor.

SB 510, as Burgess originally filed it, requires crime victims to be notified that a defense attorney is contacting them on behalf of the defendant. Most committee debate focused on the amendment.

Burgess acknowledged that the amendment would significantly impact a decades-old court procedure that sets Florida apart. Most states do not permit defense depositions in criminal matters.

“This is a change, and I respect that,” Burgess said.

However, Burgess said, the measure “does not take away a defense attorney’s ability to conduct that deposition, all they have to do is show good cause.”

The amendment would also prohibit criminal defense attorneys from deposing, without a showing of good cause, any victim or witness who has an intellectual disability.

Under the proposal, defense attorneys would have to show that the deposition is necessary, the evidence is not reasonably available by any other means, and that the probative value outweighs any potential harm to the person being deposed.

Judges would have to weigh such things as the mental and physical age and maturity of the alleged victim or witness, the “complexity” of the issues involved, and the willingness of the alleged victim or witness to be deposed.

Judges would also have to weigh whether the deposition would cause “moderate psychological harm.” Critics have pointed out that the psychiatric profession does not recognize the term, and the bill lacks a definition.

The measure is supported by the Florida Prosecutors Association and Attorney General Ashley Moody.

“This legislation will shield victims from unnecessarily reliving traumatic experiences, making it easier for them to come forward and help prosecutors secure convictions for their perpetrators,” Moody said in a statement when the standalone bills were filed in February.

The bills initially tied the prohibition to a host of other crimes but has since been narrowed.

The amendment is the substance of another Burgess bill, SB 1208, that is awaiting a hearing in Senate Judiciary.

Seventh Circuit Public Defender Matthew Metz, speaking on behalf of the Public Defender Association, stressed that depositions lead to swifter resolution of criminal cases.

“In cases involving child sexual abuse, they are especially important,” Metz said. “We learn whether or not to take those cases to trial at that time.”

All depositions are recorded and usually conducted in a small room with the help of a victim advocate, Metz said. That can be far less traumatizing than facing a defendant in open court, Metz said.

“I believe that if this amendment passes you will find that there will be more trials involving allegations of child sexual abuse,” he said.

Metz said a 1988 study by the Florida Supreme Court confirmed that criminal defense depositions conserve court resources.

Tallahassee attorney Natalie Kato told the panel she was speaking on behalf of the Criminal Law Section.

“As a section, we are opposed to this amendment, just as we are opposed to the standalone bill,” she said.

Kato stressed that the Criminal Law Section is comprised of defense attorneys, prosecutors, and judges.

Florida permits defense depositions in criminal matters because it is one of the only states that give prosecutors the authority to directly file felony charges — without convening a grand jury to weigh the evidence, Kato said.

She warned the measure would not withstand a legal challenge as the Florida Constitution gives the Supreme Court, not the Legislature, the authority to set court procedural rules.

Tallahassee attorney Aaron Wayt told the panel the Florida Association of Criminal Defense Lawyers is also opposed.

Addressing the several trial lawyers on the committee, Wayt noted that Florida does not prevent defense attorneys from deposing alleged victims in civil suits, where only money is at stake.

“We have civil attorneys on this panel, your depositions are not restricted,” he said. “Why are we restricting depositions when liberty is at stake?”

But Burgess and other proponents insisted that the measure is necessary to protect child victims from further psychological harm. Florida bars criminal defense depositions in misdemeanor cases, Burgess said. He said he was confident the Legislature has the authority to further limit depositions.

Sen. Lauren Book

Sen. Lauren Book

Senate Democratic Leader Lauren Book, a Rules Committee member, described the deposition she endured as a 16-year-old, after her parents discovered that she had been sexually abused by a nanny for seven years.

Book, who has publicly identified herself as a child sexual abuse survivor, founded the not-for-profit advocacy group, “Lauren’s Kids.”

Book said she will never forget the defense attorney’s lurid questions.

“You wanted it, didn’t you? You didn’t do anything to stop it,” Book recalled the attorney asking. “That’s what they do. That’s what they do. Emotional damage, that’s what they do.”

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