Proposed Bill to Prohibit Depositions in Certain Criminal Cases

March 14, 2023 Don Pumphrey, Jr. Criminal Defense, News & Announcements Social Share

A new bill has been introduced to the Florida Legislation regarding the prohibition of deposition in certain criminal cases. Depositions are used as a way to gather information prior to trial. The bill has resulted in mixed responses.

This article will explain the importance of depositions, cover the details of SB 1208, and provide responses to the proposed law.

What is a Deposition?

In the legal field, a deposition is a witness’s sworn out-of-court testimony that is used to gather information. In a criminal case, a deposition is a pre-trial discovery process in which a witness or party to the case provides a sworn testimony under oath. This is a formal session involving question-and-answers, which is led by the attorneys to gather relevant evidence in the case.

During the deposition process, the attorney representing the opposing party will ask the chosen witness a series of questions. It is the responsibility of the witness to answer all questions truthfully and to the best of their ability. There is typically a court reporter present, to record the testimony which is later used as evidence in the courtroom.

The reason for depositions in a criminal case can be for multiple reasons. This can include gathering evidence, obtaining case details, or impeaching the witness’ credibility during the trial.

Anyone but the criminal defendant can be deposed. Victims, police officers, and witnesses can be deposed. Criminal defendants are not deposed because they have the right to remain silent and the right against self-incrimination under the Fifth Amendment. Generally, depositions only occur in felony cases unless good cause is shown to allow for deposition in a misdemeanor case or traffic offense.  SB 1208

On February 27^th, 2023, Sen. Danny Burgess filed SB 1208 titled “Depositions of Witnesses in Criminal Proceedings.” The bill is set to prohibit the use of a deposition for victims and certain witnesses in proceedings without a showing of good cause.

SB 1208 adds several sections to Florida Statute Section 92.55. Currently, Florida Statute Section 92.55, the Court may limit the number of interviews and depositions of minors and people with intellectual disabilities who are victims of a sexual offense. The bill states that in any criminal action in which the defendant is charged with any of the following offenses:

• Any domestic violence offense defined under Section 741.28;
• Aggravated cyberstalking under Section 784.048;
• Custody offenses under Chapter 787;
• Human trafficking under Section 787.06;
• Human smuggling under 787.07;
• Sexual battery under Section 794.011;
• Lewd or lascivious offenses under Section 800.04;
• Child abuse or neglect of a child under Section 827.03;
• Promotion of or use of a child in a sexual performance under Section 827.071; and/or
• Computer pornography, prohibited computer usage, or traveling to meet a minor under Section 847.0135, the transmission of child pornography by electronic device or equipment under Section 847.0137, or transmission of material harmful to minors under Section 847.0138,

Depositions will not be allowed for any of the above offenses, absent of showing a good cause, of any victim or witness who is younger than 18, has an intellectual disability, or any person defined as a victim or witness.

Under SB 1208, a deposition can only take place for such criminal offenses if there is a written motion that states a deposition is necessary to assist in trial. It may also be requested if the evidence sought is not available through any other means, or if the probative value of the testimony outweighs the potential harm to the person to be deposed.

The court is able to authorize a deposition for any of the above instances; however, in ruling a motion filed for a deposition the court may consider the following:

• The mental and physical age and maturity of the victim or witness;
• The nature and duration of the criminal offense;
• The relationship of the victim or the witness to the defendant;
• The complexity of the issues involved;
• Whether the victim or witness would suffer moderate psychological harm as a consequence of providing a deposition testimony;
• The victim or witness’ functional capacity if they have an intellectual disability;
• The willingness of the victim or witness to testify at an examination, interview, or hearing; and/or
• Any other factor that the court deems relevant.

The written motion can be filed by the victim, witness, the witness or victim’s attorney, parent or legal guardian, the defendant, the defendant’s counsel, or the prosecutor in criminal proceedings.

Responses to the Proposed Bill

While the bill is meant to protect victims and witnesses from reliving a likely traumatic event again, some defense attorneys fear that SB 1208 will do more harm than good.

Depositions are commonly used by attorneys to gauge the case’s strength, and whether it should proceed to trial. Jude Faccidomo, the previous president of the Florida Association of Criminal Defense Lawyers (FACDL), claims that although the bill has good intentions, it is “counterintuitive.”

“[Depositions] are in a non-adversarial, very controlled environment, as opposed to being in an open courtroom, where there is a jury, and countless people,” Faccidomo said. “Depositions resolve cases and prevent the need to further traumatize witnesses.”

The current president of the FACDL, Earnest Chang, noted that there was a similar Legislature proposed last year which failed to get passed into law. The following is a statement by Chang:

“Although put forth as a way to ‘protect victims,’ this proposal would indeed do the opposite. Prosecutors and defense attorneys agree that prohibiting [depositions] is a bad idea because information learned in a deposition often leads to early resolution without the need for the public exposure of cross examination at trial, a prolonged case, and courtroom expenditures.”

Attorney General Ashley Moody provided a press release on March 1^st regarding the proposed bill, seeming in favor of SB 1208.

“This legislation will shield victims from unnecessarily reliving traumatic experiences, making it easier for them to come forward and help prosecute secure convictions for their perpetrators,” Moody said.

However, defense attorneys remain wary of the future of depositions in cases. When describing the purpose of depositions, Faccidomo said that they “help [attorneys] learn about their case, it makes strong state prosecutions resolve via plea, and it makes weak cases either resolve via plea or dismissal.”

The importance of Depositions in Criminal Cases

After a person in Florida has been accused of a criminal offense, they are advised to seek out the legal help of an attorney. Depositions are important to Florida defense attorneys for multiple reasons:

• Gathering information – Depositions allow defense attorneys to gather information on their client’s case, including the evidence details that the prosecution intends to present during the trial. This information helps to better build a defense strategy.
• Assessing witness credibility – During a deposition, the defense attorney will be granted the opportunity to question the witnesses under oath to assess credibility. Such information can be used to challenge the witness testimony during the trial.
• Preserving evidence – Depositions can be used to preserve evidence for trial. If there is any change or inconsistency in the witness’s deposition testimony, the information from the deposition can be used to impeach the witness during the trial.
• Preparing for trial – Defense attorneys can use the deposition to prepare for trial by identifying key witnesses, understanding the strengths and weaknesses of the prosecution’s case, and developing cross-examination strategies.

In the state of Florida, depositions are a commonly used tool for criminal cases. Depositions can help defense attorneys effectively represent their clients. If you or someone you know has been accused of a crime, we highly advise you to reach out to a skilled defense attorney in your area.

Finding a Defense Attorney in Tallahassee, Florida

Trying to navigate the legal landscape on your own is not an easy task. Dealing with an arrest, criminal charges, depositions, and trial are all much easier with the help of a Tallahassee criminal defense attorney. When looking for legal help, you want someone who is in your corner and ensuring none of your rights are violated.

Don Pumphrey and the team at Pumphrey Law Firm have years of experience representing those accused of a criminal offense in Florida. Our attorneys will fight for you and your case, and work towards earning your freedom. To receive a free consultation regarding your case, call us at (850) 681-7777 or leave an online message on our website.

Written by Karissa Key

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