Giving Victims of Crime Choice – Judge Frank A. Shepherd
As a former judge, I support Marsy’s Law for Florida.
This measure would ensure Florida victims and their families have certain rights and protections that are clearly spelled out in our state’s most powerful legal document.
One of the most important protections Marsy’s Law would provide victims is the right to choose whether they will consent to a deposition by the defendant’s criminal defense attorney. Right now, defendants are entitled to extensive discovery rights by rule. They can receive and review all police reports, all witness statements including the victim’s, all exhibits, all expert reports and they are permitted to take sworn deposition testimony of anyone on the state’s witness list, which typically includes the victim.
Unfortunately, taking a victim’s deposition, or in some cases multiple depositions, has become an intimidation and harassment tactic. Frequently, a State Attorney will make a plea offer with a reduced punishment if the defendant will agree not to take the deposition of the victim in order to shield the victim from additional trauma. Justice is not fully served in an effort to protect the victim.
Under Marsy’s Law for Florida, defendants would continue to have extensive discovery rights. They would still receive all police reports, all statements including the victim’s, all exhibits, all expert reports and the same deposition rights except the right to take the victim’s deposition. Victims would be able to choose to agree to a deposition and would make that decision in consultation with the State Attorney, but it would their choice and not a legal requirement.
Providing victims with a choice on defendant depositions would also bring Florida in line with the federal government and nearly every other state in the union. The federal government does not allow victim depositions. Florida is one of only five states that permit criminal defense discovery depositions. In Florida, New Hampshire, North Dakota and Vermont, the defense has the right to take discovery depositions from the victim. In Texas, the defense may take depositions, but they first must seek court approval.
We need a more enlightened approach to victim depositions and victims’ rights in general. Marsy’s Law for Florida is the path toward that enlightenment.
Frank A. Shepherd is a retired judge who served on the Florida Third District Court of Appeal until January 2017.