Court amends evidence code.

An expansion of the hearsay rule to allow depositions and former testimony to be used even when a witness is available has been rejected by the Florida Supreme Court, which however declined to address the constitutionality of the legislation.

The court acted October 26 in In Re: Amendments to the Florida Evidence Code, case no. SC00-607.

The court followed the recommendations of the Bar Code and Rules of Evidence Committee in adopting as rules of the court several laws passed by the legislature in the last four years as part of the evidence code. But, adhering to the committee's advice, it did not adopt Chapter 98-2, Section 1, which amended F.S. [sections]90.803(22).

In a per curiam opinion, the justices noted that former Gov. Lawton Chiles had initially vetoed the bill, but the legislature had overridden the veto in 1998. The committee and other opponents cited many of the same concerns as Chiles in his veto message, including, "(1) the amendment violates a defendant's constitutional right to confront adverse witnesses; (2) this expanded former-testimony hearsay exception would result in 'trial by deposition,' thereby precluding the fact-finder from evaluating witness credibility; (3) the amendment simply strips the section 904.804(2)(a) former-testimony exception of its 'unavailability' requirement, thereby making the section 90.804 obsolete; (4) the amendment is inconsistent with several rules of procedure, thereby causing confusion as to which rule should control and (5) the expanded hearsay exception will shift expense burdens relating to the introduction of evidence from the proponent of the testimony to the party against whom the testimony is being offered who wil l have to call witnesses in order to challenge the testimony."

Most of those filing comments on that law urged the court to declare it procedural and refuse to adopt it. (The Florida Constitution gives the court, not the legislature, say over procedural issues, while the legislature controls substantive issues.)

The court agreed not to adopt the law as a rule of court, but declined to say whether it was substantive or procedural "until such time as the issue comes before the court in a true 'case or controversy,' because to do otherwise would effectively pass on the constitutionality of the legislation itself."

As drafted, the court noted the law appears to apply to both civil and criminal cases and "is an unacceptable change to a long-standing rule of evidence." The change is based neither on established law nor modeled after the Federal Rules of Evidence and no other jurisdiction has such a broad exception, the court said.

Chief Justice Charles Wells and Justices Leander Shaw, Barbara Pariente and Peggy Quince concurred in the opinion. Justice Major Harding concurred in the result only. Justice Fred Lewis specially concurred with an opinion, in which Justice Shaw also concurred.

Lewis wrote that to avoid unnecessary litigation and confusion in the courts, he would have declared the legislation "an unacceptable 'rule of procedure' and make clear that is, in its entirety, ineffectual."

Recognizing the concerns over the issue, he also called for a joint cooperative effort with legislative leaders "rather than permitting an atmosphere to exist in which unnecessary conflict may arise."