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Domestic Violence: Evidence (March 2017)

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Domestic Violence: Evidence (March 2017) DOMESTIC VIOLENCE: EVIDENCE (MARCH 2017) A. PRIVILEGES APPLICABLE TO DOMESTIC VIOLENCE: 1. Domestic Violence Advocate-Victim Privileges; § 90.5036. a. Section 90.5036(1)(d) - A communication between a domestic violence advocate and a victim is “confidential” if it is related to the incident of domestic violence for which the victim is seeking assistance and if it is not intended to be disclosed to third persons other than: (i) Those persons present to further the interest of the victim in the consultation, assessment, or interview. (ii) Those persons to whom disclosure is reasonably necessary to accomplish the purpose for which the domestic violence advocate is consulted. b. Section 90.5036(2) - A victim has a privilege to refuse to disclose and to prevent any other person from disclosing, a confidential communication made by the victim to a domestic violence advocate or any record made in the course of advising, counseling, or assisting the victim. 2. Clergy-parishioner privilege; § 90.505. a. A communication between a member of the clergy and a person is “confidential” if made privately for the purpose of seeking spiritual counsel and advice from the member of the clergy in the usual course of his or her practice or discipline and not intended for further disclosure except to other persons present in furtherance of the communication. § 90.505. b. Nussbaumer v. State, 882 So. 2d 1067 (Fla. 2d DCA 2004). The court held that the clergy communication privilege statute contains no exceptions. i. Further, the 2d DCA held that courts must be careful when examining the nature of the communication – specifically whether the clergy person is engaging in “spiritual counsel” – so as not to run afoul of the ecclesiastical abstention doctrine. Pursuant to the ecclesiastical abstention doctrine, courts do not interpret religious doctrine or otherwise inquire into matters involving religious dogma. See Southeastern Conference Ass'n of Seventh-Day Adventists, Inc. v. Dennis, 862 So. 2d 842, (Fla. 4th DCA 2003). 5-1 3. Attorney-Client Privilege; § 90.502. Attorney-client privilege is relatively limited in scope, and thus does not require exclusion of evidence voluntarily submitted by an attorney in violation of that privilege. State v. Sandini, 395 So. 2d 1178 (Fla. 4th DCA 1981). 4. Spouse Privilege; § 90.504. a. No privilege “prevents the Government from enlisting one spouse to give information concerning the other or to aid in the other’s apprehension. It is only the spouse’s testimony in the courtroom that is prohibited” Trammel v. U.S., 445 U.S. 40 (1980); State v. Grady, 811 So. 2d 829 (Fla. 2d DCA 2002). b. Statements of spouse that would be privileged at trial can be used to establish cause to obtain a search warrant or to investigate a suspect based on those statements. State v. Grady, 811 So. 2d 829 (Fla. 2d DCA 2002). c. Husband-wife evidentiary privilege does not apply to criminal acts by one spouse. (i) A spouse has a privilege during and after the marital relationship to refuse to disclose, and to prevent another from disclosing, communications which were intended to be made in confidence between the spouses while they were husband and wife. (ii) Section 90.504(3)(b). There is no privilege in a criminal proceeding in which one spouse is charged with a crime committed at any time against the person or property of the other spouse or the person or property of a child of either. (iii) Valentine v. State, 688 So. 2d 313 (Fla. 1996). B. ALLOCATION OF DECISION MAKING/FINDER OF FACT: Question of Fact for the Trier: 1. Emotional Distress: D.L.D., Jr. v. State, 815 So. 2d 746 (Fla. 5th DCA 2002). The court looked to the 1st District Court of Appeal in McMath v. Biernacki, 776 So. 2d 1039 (Fla. 1st DCA 2001), agreeing with the First DCA’s finding that in deciding whether an incident or series of incidents creates substantial emotional distress that distress should be judged on an objective, not subjective, standard and even if a subjective standard is used, a person does not need to be reduced to “tears or hysteria in order to be considered substantially emotionally distressed.” 5-2 2. Stalking: Biggs v. Elliot, 707 So. 2d 1202 (Fla. 4th DCA 1998). The court’s finding that whether following and repeatedly telephoning the victim fell within the statutory definition of stalking under the domestic violence statute so as to permit the issuance of an injunction was a question of fact for the trier of fact and was not clearly erroneous. The stalking statute (§ 784.048) was found not to be unconstitutionally vague or overbroad. C. CONFIDENTIAL RECORDS: 1. A Petitioner’s Place of Residence May Be Kept Confidential for Safety Reasons. § 741.30(6)(a)(7). See also Family Law Form 12.980(h), Request for Confidential Filing of Address, and § 119.071(2)(j)1. 2. See Also in this outline section II.,M.(2), Confidentiality of Information. D. DISCOVERY 1. The court may not bar the opportunity for discovery, but may limit the time in which a party may engage in discovery. a. Nettles v Hoyos, 138 So. 3d 593 (Fla. 5th DCA 2014). “The court must balance the need to expedite the hearing and the need to ensure that the parties' due process rights are not violated. The trial court is imbued with discretion to limit the time frame and nature of discovery in such cases and can do so by examining individual discovery requests on a case by case basis.” E. JUDICIAL NOTICE: 1. Improper for Court to Take Judicial Notice of Service which is an Essential Element that the State is Required to Prove. a. Cordova v. State, 675 So. 2d 632 (Fla. 3d DCA 1996). (i) Notice of injunction is an essential element of charge of violating its provisions. (ii) Return of service, while hearsay, was admissible in evidence under public records exception. (iii) Trial court may not take judicial notice of fact that defendant was served with an injunction. 5-3 (a) Fact that the defendant was served is not generally known within territorial jurisdiction of the court. (b) And it was not type of fact that was not subject to dispute because it was capable of being determined by a source whose accuracy could not be questioned. (iv) However: Trial court may allow State to use “permissive inference” to establish that the defendant was served with an injunction. (a) Permissive inference allows, but does not require, the trier of fact to infer elemental fact upon proof of a basic fact and places no burden on the defendant. (b) Such inference passes the rational connection test, as fact of service more likely than not flowed from the return of service. b. Hernandez v. State, 713 So. 2d 1120 (Fla. 3d DCA 1998). The District Court of Appeal held that the defendant was entitled to judgment of acquittal on charge of violating a domestic violence injunction, as the trial court could not properly take judicial notice of an essential element that the State was required but failed to prove for conviction. 2. Court Records - The Court Can Take Judicial Notice of a Record from any Florida or U.S. Court when imminent danger to persons or property has been alleged and it is impractical to give prior notice to the parties of the intent to take judicial notice. An opportunity to present evidence relevant to the propriety of taking judicial notice may be deferred until after judicial action has been taken. If judicial notice is taken, the court shall file a notice in the pending case of the matters judicially noticed within 2 business days. § 90.204(4). F. BATTERED SPOUSE SYNDROME (BSS) or (BWS): 1. Admissible Against Batterers to Bolster Credibility of Victim: a. Commonwealth v. Goetzendanner, 679 N.E. 2d 240 (1997). “Where relevant, evidence of BWS may be admitted through a qualified expert to enlighten jurors about behavioral or emotional characteristics common to most victims of battering and to show that an individual or victim witness has exhibited similar characteristics.” b. State v. Griffin, 564 N.W.2d 370 (Iowa 1997). 5-4 (i) Iowa Supreme Court allowed the use of expert testimony on BWS with respect to the victim’s recantation. (ii) Expert did not offer opinion on the specific victim’s credibility, but instead testified concerning the medical and psychological syndrome present in battered woman generally. c. People v. Morgan, 58 Cal.App.4th 1210 (Cal. Ct. App.1997). BWS is admissible to bolster the credibility of a victim who recants her story. d. Gonzalez-Valdes v. State, 834 So. 2d 933 (Fla. 3d DCA 2003). Defendant was convicted in a jury trial in the circuit court, Miami-Dade County, of second- degree murder of her live-in boyfriend. Defendant appealed. On motion for rehearing, the District Court of Appeal held that the testimony of victim's ex-wife, that victim never abused her in 29 years of marriage, was relevant to battered woman's syndrome defense. 2. BSS is Admissible as a Defense by Those Suffering from the Condition: a. State v. Hickson, 630 So. 2d 172 (Fla. 1993). b. But see Trice v. State, 719 So. 2d 17 (Fla. 2d DCA 1998). No error in prohibiting BSS relating to the victim where the expert could not testify that the victim was suffering from such at the time of the homicide. G. STATEMENTS BY WITNESSES: FLORIDA RULE OF CRIMINAL PROCEDURE 3.220(B)(1)(B): 1. State Must Disclose Prior Statements of Prosecution Witness. a. Roman v. State, 528 So.
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