Forfeit Victory: Florida Adds Forfeiture By Wrongdoing Exception That Mirrors Federal Rule

Federal Rule of Evidence 804(b)(6) provides an exception to the rule against hearsay for

A statement offered against a party that wrongfully caused — or acquiesced in wrongfully causing — the declarant’s unavailability as a witness, and did so intending that result.

Until yesterday, Florida did not have a similar forfeiture by wrongdoing exception, but that all changed with the stroke of the pen by Governor Rick Scott.

As reported by the Bradenton Herald, yesterday Rick Scott signed House Bill 701 into law. House Bill 701 adds language to the Florida Code of Evidence that is identical to Federal Rule of Evidence 804(b)(6), as is made clear by the summary analysis:

Currently, a hearsay statement is not admissible in court, unless an exception applies. Under Florida law, exceptions fall into two categories: those where the availability of the person who made the statement is irrelevant, and those where the person who made the statement must be unavailable to testify in court.

The Federal Rules of Evidence provide an exception to the hearsay rule when the unavailability of a witness is caused by the opposing party‟s wrongful conduct. Florida law does not provide such an exception.

The bill creates a “forfeiture by wrongdoing” hearsay exception. The exception mirrors the language in the Federal Rules of Evidence. Under the exception, a hearsay statement would be admissible if the party against whom it is offered engaged in wrongdoing that caused the person who made the statement to be unavailable to testify.

The bill does not appear to have a fiscal impact on state or local governments.

The bill is effective upon becoming law.

-CM