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Domestic Violence Sufferers Could Get Hearsay Exception

colonnaded courthouse atrium
Jessica Palombo

Domestic violence sufferers could soon have wider leeway to use statements made against their accusers during court proceedings. Under a pair of bills moving through the Legislature, the concept of hearsay could be amended in an effort to encourage more victims to name their abusers and bring them to trial.

First, a quick legal primer on hearsay. Merriam-Webster’s dictionary defines hearsay evidence as: evidence based not on a witness's personal knowledge but on another's statement not made under oath. In other words, someone can’t testify they heard a fact of a case from someone else – only the person with direct knowledge can do that. But for years, says Florida State University Professor Emeritus of Law Chuck Ehrhardt, courts had a hard time squaring hearsay rules with abuse cases.

“Fifty years ago, nobody was ever prosecuted for child abuse," Ehrhardt says. "Once that came to the fore, then there was a pretty widespread, unanimous judgment that we needed to recognize an exception to the hearsay rule for reliable statements of victims of child abuse.”

Florida law now recognizes 24 hearsay exceptions. A twenty-fifth would be added if Rep. Kathleen Passidomo’s (R-Naples) bill becomes law.

“House Bill 429 is narrowly tailored. It’s not over-broad," she says. "And it already passes constitutional muster, which is kind of different in this process. We’ve already got the U.S. Supreme Court telling us we can do this.”

Passidomo’s bill, and a companion from Sen. Nancy Detert (R-Venice), would allow law enforcement to accept statements from domestic violence victims as evidence that could be used to try their alleged abusers. Florida Prosecuting Attorneys Association lobbyist Buddy Jacobs says that’s as it should be, according to legal precedent.

“The Florida Supreme Court has ruled that a prior inconsistent statement cannot be the sole substantive evidence for a conviction," Jacobs says. "This rationale likely applies to any inconsistent statement that may be admitted under this bill. Under this rationale, the evidence of the prior statement could be used as some evidence, but could not be the sole source of evidence to convict an individual.”

But Florida Public Defenders Association lawyer Robert Trammell says it’s not that simple.

“Many, many years ago in handling domestic cases, I learned quickly that those types of situations lead to very, very emotional outbursts and that type of thing. So there is a real balancing act that we need to see," Trammell says.

Trammell cited Ehrhardt – the author of a book called Florida Evidence -- in his testimony before the House Judiciary Committee, claiming both the public defenders he presents and Ehrhardt believe the bill is too broad. Jacobs noted the irony of that statement.

“This is too easy for me, because what Mr. Trammell just did was use hearsay from Chuck Ehrhardt," Jacobs joked. "And I apologize. He threw me a soft one there and I couldn’t resist that.”

Ehrhardt says he had no idea he’d be invoked in the committee, but does agree the bill could use some changes.

“My suggestion was and is that if you’re going to do that for domestic violence victims, it ought to be something similar to what we do for child abuse victims," he says. "That is to say that these statements, although they’re hearsay, although they’re out of court, are admissible if the judge determines the surrounding circumstances indicates that statement is reliable.”

Trammell says his group has an amendment it plans to pitch to Passidomo, but he didn’t elaborate on its contents.