An important part of an effective criminal defense strategy occurs in the discovery phase of the process, when both sides take depositions of witnesses. Depositions are sworn testimony given by witnesses out-of-court. Both prosecutors and defense lawyers use them to gather pertinent information about the case. They are set up in a question-and-answer format, typically with the witness, prosecutor, defense lawyer, and court reporter present. Witnesses are subpoenaed by the court, meaning they must appear and testify even if they don’t want to (though they may plead the Fifth to avoid self-incrimination). Not all information gleaned from the depositions will be allowed to be presented at trial (if the case gets that far), but it gives both sides a good idea of how witnesses will testify.
The idea is to evaluate witnesses, gather information, gain admissions, solidify trial testimony (“lock-in” witnesses to a certain version of events), identify theories and themes, and authenticate documents (such as police records and medical paperwork).
Recently, the Florida attorney general voiced support for proposed legislation that would prevent alleged victims in certain types of cases being compelled to testify in depositions. Offenses to which the rule would apply would include:
- human trafficking
- domestic violence,
- aggravated cyberstalking
- child custody offenses
- human smuggling
- lewd/lascivious offenses
- child abuse
- child neglect
- traveling to meet a minor
According to a press release from the state attorney general’s office, SB 1208 and HB 1037 would “help prosecutors secure convictions” in human trafficking and other cases.
From the perspective of a Fort Lauderdale defense lawyer, this raises some alarm bells – specifically with regard to due process rights. Furthermore, the criminal justice system was not set up to make it easy to secure criminal convictions – for good reason. It was always intended that defendants would be presumed innocent until proven guilty by the highest proof standards. The Sixth Amendment guarantees those accused of a crime the right to confront witnesses against him/her in a criminal action. Shielding accusers in a criminal from lawful depositions by defense lawyers may potentially undercut this right.
What Does the Bill Propose?
To be clear, we recognize that human trafficking is a real and serious problem in Florida, and the state has a vested interest in doing what it can to prevent these crimes, punish the perpetrators, and protect the victimized. However, this cannot occur through the sacrifice of fundamental rights of the defendant.
What this legislation proposes is the prohibition of depositions of alleged victims in these types of cases. It aims to protect any witness/victim under the age of 18, anyone with an intellectual disability, or anyone who has been victimized.
If this bill passes, Fort Lauderdale defense lawyers would have to submit a written motion to the court explaining why the deposition is necessary and asking the court to make an exception to the automatic restrictions. They would need to show good cause. Courts could approve these requests if they feel the defense lawyer has met the burden of showing the information/evidence sought can’t reasonably be gleaned by any other measures. They must also show that the probative value (the probability that the evidence is relevant to a key fact at issue in the case) outweighs the possible harm that could be done to the person being asked to provide sworn testimony during the deposition. The court would need to consider whether the witness or victim would suffer a moderate-to-severe level of psychological harm if compelled to testify.
What is at Stake?
Prosecutors allege that depositions of underage human trafficking victims are needlessly retraumatizing. Of course, no one is in favor of imposing further harm to those who have been victimized.
That said, it’s imperative that we not accomplish this by sacrificing defendants’ rights to a fair trial through due process – especially given that we’re talking about serious criminal allegations with the potential to strip the accused of their freedom, voting rights, right to bear arms, child custody rights, and more. Our Broward defense attorneys are committed to tirelessly fighting to protect the rights and freedoms of our clients.
Call Fort Lauderdale Criminal Defense Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.
BILL WOULD PROVIDE GREATER PROTECTIONS IN JUDICIAL PROCEEDINGS FOR HUMAN TRAFFICKING VICTIMS, march 2, 2023, Florida Bar
More Blog Entries:
Fort Lauderdale Criminal Defense Lawyer Explains Upside of “Withholding Adjudication” in Florida, Feb. 27, 2023, Broward Criminal Defense Lawyer Blogs