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Supreme Court of Florida

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No. SC13-98

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IN RE: AMENDMENTS TO THE FLORIDA EVIDENCE CODE.

[July 10, 2014]

REVISED OPINION

PER CURIAM.

The case is before the Court upon the motion for rehearing filed by the 

Florida Bar Code and Rules of Evidence Committee. We grant the motion for 

rehearing, withdraw our prior opinion dated December 12, 2013, and substitute the 

following in its place:

We have for consideration the regular-cycle report filed by the Florida Bar 

Code and Rules of Evidence Committee (Committee) concerning recent legislative 

changes to the Florida Evidence Code (Code), see ch. 2011-183, § 1, Laws of Fla.; 

ch. 2012-152, § 1, Laws of Fla.; and to section 766.102(12) of the Florida Statutes, 

see ch. 2011-233, § 10, Laws of Fla. We have jurisdiction. See art. V, § 2(a), Fla. 

Const.
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The Committee recommends that the Court adopt the above provisions to the 

extent that they concern court procedure. The amendments at issue in this case are 

those enacted by the Florida Legislature since this Court last considered 

amendments to the Florida Evidence Code. See In re Amends. to the Fla. Evidence 

Code, 53 So. 3d 1019 (Fla. 2011). For the reasons discussed below, we decline to 

adopt two of the Committee’s three recommendations.

In chapter 2011-183, section 1, Laws of Florida, the Legislature enacted 

section 90.5021, Florida Statutes, which establishes a “fiduciary lawyer-client 

privilege.” According to the Committee, whether a fiduciary is entitled to the 

lawyer-client privilege when the fiduciary employs an attorney in connection with 

his or her fiduciary duties has been an issue in several cases; for example, the 

Committee cites Jacob v. Barton, 877 So. 2d 935 (Fla. 2d DCA 2004), and Tripp v. 

Salkovitz, 919 So. 2d 716 (Fla. 2d DCA 2006). We decline to follow the 

Committee’s recommendation to adopt the new provision of the Code because we 

question the need for the privilege to the extent that it is procedural.

In chapter 2012-152, section 1, Laws of Florida, the Legislature amended 

section 90.804 to include the hearsay exception of “Statement offered against a 

party that wrongfully caused the declarant’s unavailability.” See § 90.804(2)(f), 

Fla. Stat. (2012). According to the Committee, the provision is a codification of 

the common law rule that one who wrongfully procures the absence of a witness 
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from court cannot complain of the admission of the hearsay statement of the 

witness. See Reynolds v. United States, 98 U.S. 145, 158-59 (1878). We adopt 

chapter 2012-152, section 1, Laws of Florida, to the extent that the provision is 

procedural.

Finally, in chapter 2011-233, section 10, Laws of Florida, the Legislature 

created section 766.102(12), Florida Statutes, which provides as follows:

766.102 Medical negligence; standards of recovery; expert witness.

(12) If a physician licensed under chapter 458 or chapter 459 or a 

dentist licensed under chapter 466 is the party against whom, or on 

whose behalf, expert testimony about the prevailing professional 

standard of care is offered, the expert witness must be licensed under 

chapter 458, chapter 459, or chapter 466 or possess a valid expert 

witness certificate issued under s. 458.3175, s. 459.0066, or s. 

466.005.

§ 766.102(12), Fla. Stat. (2012). The Committee voted 14-13 to recommend that 

the statutory provision be adopted as a rule of procedure to the extent that it is 

procedural. The Board of Governors voted 34-5 to recommend that the Court 

reject the Committee’s proposal, on the grounds that the provision is 

unconstitutional, will have a chilling effect on the ability to obtain expert 

witnesses, and is prejudicial to the administration of justice. Numerous comments 

were filed with respect to this proposal, all in opposition to its adoption. After 

hearing oral argument and carefully considering the Committee’s recommendation
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in light of those comments, we decline to follow this recommendation due to the 

concerns raised.

Accordingly, the Court declines to adopt chapter 2011-183, section 1 or 

chapter 2011-233, section 10, Laws of Florida, to the extent they are procedural. 

The Court adopts chapter 2012-152, section 1, Laws of Florida, as provided in the 

appendix to this opinion to the extent that the provision is procedural. Our 

adoption of the amendment is effective retroactively to the date the amendment 

became law.1

It is so ordered.

LABARGA, C.J., and LEWIS, QUINCE, POLSTON, and PERRY, JJ., concur.

PARIENTE, J., concurs in part and dissents in part with an opinion.

CANADY, J., concurs in part and dissents in part with an opinion.

THE FILING OF A MOTION FOR REHEARING SHALL NOT ALTER THE 

EFFECTIVE DATE OF THESE AMENDMENTS. 

PARIENTE, J., concurring in part and dissenting in part.

I concur in the majority’s decision to decline to adopt chapter 2011-183, 

section 1, and chapter 2011-233, section 10, Laws of Florida, to the extent they are 

procedural, for the reasons stated in the majority opinion. I dissent, however, from 

the majority’s decision on rehearing to adopt chapter 2012-152, section 1, Laws of 

 

1. Chapter 2012-152, section 1, Laws of Florida, became effective on April 

27, 2012.
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Florida, in light of my continued concerns as to the constitutional implications of 

this provision as it is applied.2 

Specifically, chapter 2012-152, section 1, which added a new hearsay 

exception to section 90.804(2), Florida Statutes, entitled “Statement offered against 

a party that wrongfully caused the declarant’s unavailability,” raises potential Sixth 

Amendment issues. Clearly, the constitutionality of the amended statute is not 

currently before us, and a determination of its constitutionality will require the 

consideration of this doctrine as applied in an actual case or controversy, where the 

statement of an unavailable declarant is admitted pursuant to this newly added 

hearsay exception and the issue is raised and argued by the parties. When this 

Court previously has had significant constitutional concerns regarding a new 

provision in the Florida Evidence Code, however, the Court has declined to adopt 

the statutory amendment as a rule. See In re Amends. to the Fla. Evidence Code, 

782 So. 2d 339, 341 (Fla. 2000) (declining to adopt the former testimony exception 

to the hearsay rule because of constitutional concerns and awaiting a “case or 

controversy” in order to pass on the constitutionality of the legislation itself). 

 

2. In the past, and in the absence of significant concerns, this Court has 

generally approved of amendments to the Florida Evidence Code based on statutes 

passed by the Legislature, with the proviso that we were adopting the provisions as 

rules “to the extent they are procedural.” In re Amends. to the Fla. Evidence Code, 

782 So. 2d 339, 342 (Fla. 2000). Recognizing that “the Florida Evidence Code is 

both substantive and procedural in nature, this Court has adopted the Evidence 

Code as originally enacted as well as later amended by the Legislature.” Id.
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In support of the amendment, the Florida Bar Code and Rules of Evidence 

Committee asserts that chapter 2012-152, section 1, is merely a codification of the 

common law, and that Giles v. California, 554 U.S. 353 (2008), “confirms” that 

this provision is constitutional. In adopting the Committee’s proposal to the extent 

it is procedural, the majority simply cites to the Committee’s reliance on Reynolds 

v. United States, 98 U.S. 145, 158-59 (1878), as support for its position that 

chapter 2012-152, section 1, codifies the common law. While not itself an 

endorsement of the statute’s constitutionality, the majority’s failure to refer to the 

more recent pronouncement of the United States Supreme Court on this issue in 

Giles, also cited by the Committee, leaves this Court’s analysis and approval of the 

proposal incomplete. A thorough review of Giles demonstrates that this issue is 

more nuanced and complex than the Committee contends. 

In Giles, the Supreme Court addressed “whether a defendant forfeits his 

Sixth Amendment right to confront a witness against him when a judge determines 

that a wrongful act by the defendant made the witness unavailable to testify at 

trial.” 554 U.S. at 355. Reviewing the doctrine of “forfeiture by wrongdoing,” 

which at common law permitted the introduction of statements of a witness who 

was “detained” or “kept away” by the “means or procurement” of the defendant, 

the Supreme Court explained that the forfeiture exception “applied only when the 

defendant engaged in conduct designed to prevent the witness from testifying.” Id.
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at 359. The Supreme Court stated that the “manner in which the rule was applied 

[at common law] makes plain that unconfronted testimony would not be admitted 

without a showing that the defendant intended to prevent a witness from 

testifying.” Id. at 361. 

As further articulated by the Supreme Court:

In cases where the evidence suggested that the defendant had caused a 

person to be absent, but had not done so to prevent the person from 

testifying—as in the typical murder case involving accusatorial 

statements by the victim—the testimony was excluded unless it was 

confronted or fell within the dying-declarations exception. 

Prosecutors do not appear to have even argued that the judge could 

admit the unconfronted statements because the defendant committed 

the murder for which he was on trial. 

Id. at 361-62 (emphasis added). In other words, “American courts never—prior to 

1985—invoked forfeiture outside the context of deliberate witness tampering.” Id.

at 366. 

Although the Supreme Court acknowledged in Giles that it had previously 

approved a Federal Rule of Evidence for “forfeiture by wrongdoing,” which the 

state version enacted by the Florida Legislature in 2012 tracks, the Supreme Court 

emphasized that the requirement of intent in the rule is critical and has been 

interpreted narrowly by commentators and treatises to mean “that the exception 

applies only if the defendant has in mind the particular purpose of making the 

witness unavailable.” Id. at 367 (quoting 5 C. Mueller & L. Kirkpatrick, Federal 

Evidence § 8:134, p. 235 (3d ed. 2007)). Thus, as Giles makes clear, the specific 
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intent of the defendant to deliberately prevent the witness from testifying through 

bribery, intimidation, or other means is of constitutional significance in any 

analysis of the “forfeiture by wrongdoing” rule:

The absence of a forfeiture rule covering [conduct designed to prevent 

a witness from testifying] would create an intolerable incentive for 

defendants to bribe, intimidate, or even kill witnesses against them. 

There is nothing mysterious about courts’ refusal to carry the rationale 

further. The notion that judges may strip the defendant of a right that 

the Constitution deems essential to a fair trial, on the basis of a prior 

judicial assessment that the defendant is guilty as charged, does not sit 

well with the right to trial by jury. It is akin, one might say, to 

“dispensing with jury trial because a defendant is obviously guilty.” 

Crawford, 541 U.S., at 62.

Id. at 365. 

The Supreme Court also noted that, at common law, the doctrine of 

“forfeiture by wrongdoing” was “never” invoked in murder prosecutions like 

Giles, where the victim’s prior statements inculpated the defendant. Id. at 367. 

Moreover, in rejecting a broader interpretation of the “forfeiture by wrongdoing” 

doctrine, which was advanced by the dissenting opinion in that case, the Supreme 

Court stated that its narrow interpretation of the intent requirement in the commonlaw forfeiture rule was supported by “the common law’s uniform exclusion of 

unconfronted inculpatory testimony by murder victims (except testimony given 

with awareness of impending death) in the innumerable cases in which the 

defendant was on trial for killing the victim, but was not shown to have done so for 

the purpose of preventing testimony.” Id. at 368. 
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The problem and possible constitutional implications of the doctrine of 

“forfeiture by wrongdoing,” now included in the Florida Evidence Code, are thus 

not with the concept itself, but with the way it may be applied—that is, what will 

be the predicate for admissibility? Although agreeing in Giles with the Supreme 

Court’s historical analysis of the narrow “forfeiture by wrongdoing” doctrine, 

Justice Souter, joined by Justice Ginsburg, still remained concerned about the 

constitutional implications of this doctrine if not applied in a limited way, stating 

as follows in a separate concurring-in-part opinion: 

As the Court demonstrates, the confrontation right as understood at 

the framing and ratification of the Sixth Amendment was subject to 

exception on equitable grounds for an absent witness’s prior relevant, 

testimonial statement, when the defendant brought about the absence 

with intent to prevent testimony. It was, and is, reasonable to place 

the risk of untruth in an unconfronted, out-of-court statement on a 

defendant who meant to preclude the testing that confrontation 

provides. The importance of that intent in assessing the fairness of 

placing the risk on the defendant is most obvious when a defendant is 

prosecuted for the very act that causes the witness’s absence, 

homicide being the extreme example. If the victim’s prior statement 

were admissible solely because the defendant kept the witness out of 

court by committing homicide, admissibility of the victim’s statement 

to prove guilt would turn on finding the defendant guilty of the 

homicidal act causing the absence; evidence that the defendant killed 

would come in because the defendant probably killed. The only thing 

saving admissibility and liability determinations from question 

begging would be (in a jury case) the distinct functions of judge and 

jury: judges would find by a preponderance of evidence that the 

defendant killed (and so would admit the testimonial statement), while 

the jury could so find only on proof beyond a reasonable doubt. 

Equity demands something more than this near circularity before the 

right to confrontation is forfeited, and more is supplied by showing 
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intent to prevent the witness from testifying. Cf. Davis v. 

Washington, 547 U.S. 813, 833 (2006).

Id. at 379 (Souter, J., concurring in part) (emphasis added). 

With the adoption of the “forfeiture by wrongdoing” doctrine as narrowly set 

forth in section 90.804(2), the critical question, as demonstrated by Giles, will be 

the establishment of the procedure for how the unavailable declarant’s out-of-court 

statement could be admitted into evidence in a manner consistent with the 

Confrontation Clause, which considerably restricts the scope of this hearsay 

exception. Although the Supreme Court’s opinion in Giles may be read to prevent 

the use of unconfronted statements in the circumstance of a murder prosecution 

where the victim’s prior statements inculpated the defendant—by limiting the 

admissibility of statements to cases of deliberate witness tampering, id. at 361-62 

(majority op.)—the key question for trial courts, as they apply this new hearsay 

exception in practice, will be to determine the predicate for admissibility. While 

the Committee asserts that Giles “confirms” the constitutionality of the new 

exception, Giles explains that a Confrontation Clause violation can be avoided 

only if the “forfeiture by wrongdoing” doctrine is applied in a narrow manner. 

By simply adopting this proposal to the extent it is procedural but not 

explaining the procedures for admissibility that are at the heart of this exception 

and its constitutional implications, I am concerned that we are neither promoting 

the administration of justice nor furthering the goals of the Florida Evidence Code, 
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which is designed to ensure and increase the reliability and quality of evidence 

admitted in Florida courts. Because of the nuances connected with this issue, I 

would await a case or controversy to consider this statute, determine its 

constitutionality, and, if constitutional, ensure that the procedures for the predicate 

for admissibility are clearly set forth. 

CANADY, J., concurring in part and dissenting in part.

I concur with the majority’s decision to adopt the rule proposal based on 

chapter 2012-152. I would, however, also adopt the two other rule amendments 

recommended by the Code and Rules of Evidence Committee. I therefore dissent 

from the rejection of those two proposals.

Original Proceedings – Florida Bar Code and Rules of Evidence Committee 

Thomas Charles Allison, Chair, Code and Rules of Evidence Committee, Fox 

Rothschild LLP, West Palm Beach, Florida; Thomas D. Shults, Past Chair, Code 

and Rules of Evidence Committee, Kirk-Pinkerton, P.A., Sarasota, Florida; John 

Harkness, Executive Director, and Ellen Sloyer, Bar Staff Liaison, The Florida 

Bar, Tallahassee, Florida, 

for Petitioner 

Wayne Lawrence Helsby, Winter Park, Florida, Theodore C. Eastmoore, Sarasota, 

Florida, and Hector Antonio Moré, Orlando, Florida, on behalf of The Trial 

Lawyers Section of the Florida Bar; Jay Cohen of the Law Office of Jay Cohen, 

P.A., Ft. Lauderdale, Florida; Scott Ramsey McMillen of McMillen Law Firm, 

Orlando, Florida; Stuart Z. Grossman, Neal Allan Roth, Andrew B. Yaffa, Seth 

Eric Miles, Brett Elliott Von Borke, Natasha Santiago Cortes, Susan C. Odess, 
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David Marc Buckner, and Robert Cecil Gilbert of Grossman Roth, P.A., Coral 

Gables, Florida; Gary M. Cohen of Grossman Roth, P.A., Boca Raton, Florida; 

William E. Partridge and Patrick Stephen McArdle of Grossman Roth and 

Partridge, Sarasota, Florida; Sean C. Domnick of Domnick and Shevin PL, Palm 

Beach Gardens, Florida; James William Gustafson, Jr. of Searcy Denney Scarola 

Barnhart & Shipley, P.A., Tallahassee, Florida; Larry Scott Stewart of Stewart 

Tilghman Fox Bianchi & Gain, P.A., Miami, Florida; and Lee Delton Gunn, IV of 

the Gunn Law Group, Tampa Florida, 

Responding with comments
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APPENDIX

Chapter 2012-152, § 1:

90.804 Hearsay exceptions; declarant unavailable

(1) [No Change] 

(2) HEARSAY EXCEPTIONS. —The following are not excluded under 

s. 90.802, provided that the declarant is unavailable as a witness:

(a)-(e) [No Change]

(f) Statement offered against a party that wrongfully caused the 

declarant’s unavailability 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.