Florida Rule of Criminal Procedure 3.116
RULE 3.116. USE OF COMMUNICATION TECHNOLOGY
(a) Definitions. The definitions for the terms “audio
communication technology,” “audio-video communication
technology,” and “communication technology” in Florida Rule of
General Practice and Judicial Administration 2.530(a) apply to this
rule and to other rules in the Florida Rules of Criminal Procedure
that use those terms.
(b) Generally. Use of communication technology in
proceedings subject to the Florida Rules of Criminal Procedure is
governed by this rule, except that rules 3.130(a), 3.132(j), 3.160(a),
3.180(b), 3.220(h), and 3.851(f) govern the use of audio-video
communication technology in the manner authorized by those
rules.
(c) Pretrial Conferences. A judge may, upon the court’s
own motion or upon the written request of a party, direct that
communication technology be used by one or more parties for
attendance at a pretrial conference, except that, before a judge may
direct that the defendant participate in the pretrial conference using
communication technology, the defendant or the defendant’s
counsel must waive the defendant’s physical attendance at the
pretrial conference pursuant to rules 3.180(a)(3) and 3.220(o)(1). A
judge must give notice to the parties and consider any objections
they may have to the use of communication technology before
directing that communication technology be used. The decision to
use communication technology over the objection of parties will be
in the discretion of the trial court, except as noted below.
(1) Non-Evidentiary Pretrial Conferences. A judge must
grant a request to use communication technology for a non-
evidentiary pretrial conference scheduled for 30 minutes or less
unless the judge determines that good cause exists to deny the
request.
(d) Testimony.
(1) Generally. A judge may allow testimony to be taken
through communication technology if all parties consent.
(2) Procedure. Any party desiring to present testimony
through communication technology must, prior to the hearing or
trial at which the testimony is to be presented, contact all parties to
determine whether each party consents to this form of testimony.
The party seeking to present the testimony must move for
permission to present testimony through communication
technology, which motion must set forth good cause as to why the
testimony should be allowed in this form.
(3) Oath. The oath must be administered for testimony
taken through communication technology in the manner provided
by Florida Rule of General Practice and Judicial Administration
2.530(b)(2)(B).
(4) Confrontation Rights. The defendant must make an
informed waiver of any otherwise applicable confrontation rights.
(e) Burden of Expense. The cost for the use of the
communication technology is the responsibility of the requesting
party unless otherwise directed by the court.
Workgroup on the Continuity of Court Operations and
Proceedings During and After COVID-19 Note
2022 Adoption. This rule is created to authorize the use of
communication technology for criminal proceedings while
safeguarding the rights of the accused. It is based on Florida Rule of
General Practice and Judicial Administration 2.530, as amended by
In re Amends. to Fla. Rules of Jud. Admin., 73 So. 3d 210, 211 (Fla.
2011), but updates and revises the text of that version of the rule
to: (1) use the terms “audio communication technology,” “audio-
video communication technology,” and “communication
technology”; (2) identify other rules in the Florida Rules of Criminal
Procedure that will continue to govern the use of audio-video
communication technology under specified circumstances; (3)
consolidate subdivisions (b) and (c) of rule 2.530, as amended in
2011, to recognize proposed amended rules 3.180(a)(3) and
3.220(o)(1) and provide that a court may, on its own motion or the
written request of a party, direct the use of communication
technology by one or more parties for attendance at a pretrial
conference, except that, before a judge may direct that the
defendant participate in the pretrial conference using
communication technology, a waiver of the defendant’s physical
attendance must be obtained pursuant to rules 3.180(a)(3) and
3.220(o)(1); (4) substitute the term “a pretrial conference” for the
phrase “a motion hearing, pretrial conference, or a status
conference” used in subdivision (b) of rule 2.530, as amended in
2011, because case law has construed the term in the context of
rules 3.180(a)(3) and 3.220(o)(1) as including a motion hearing and
a status conference; and (5) add authority for the oath to be
administered to a witness who is testifying through audio-video
communication technology by an authorized person who is not
physically present with the witness subject to specified
requirements.
III. PRELIMINARY PROCEEDINGS
(a) Definitions. The definitions for the terms “audio
communication technology,” “audio-video communication
technology,” and “communication technology” in Florida Rule of
General Practice and Judicial Administration 2.530(a) apply to this
rule and to other rules in the Florida Rules of Criminal Procedure
that use those terms.
(b) Generally. Use of communication technology in
proceedings subject to the Florida Rules of Criminal Procedure is
governed by this rule, except that rules 3.130(a), 3.132(j), 3.160(a),
3.180(b), 3.220(h), and 3.851(f) govern the use of audio-video
communication technology in the manner authorized by those
rules.
(c) Pretrial Conferences. A judge may, upon the court’s
own motion or upon the written request of a party, direct that
communication technology be used by one or more parties for
attendance at a pretrial conference, except that, before a judge may
direct that the defendant participate in the pretrial conference using
communication technology, the defendant or the defendant’s
counsel must waive the defendant’s physical attendance at the
pretrial conference pursuant to rules 3.180(a)(3) and 3.220(o)(1). A
judge must give notice to the parties and consider any objections
they may have to the use of communication technology before
directing that communication technology be used. The decision to
use communication technology over the objection of parties will be
in the discretion of the trial court, except as noted below.
(1) Non-Evidentiary Pretrial Conferences. A judge must
grant a request to use communication technology for a non-
evidentiary pretrial conference scheduled for 30 minutes or less
unless the judge determines that good cause exists to deny the
request.
(d) Testimony.
(1) Generally. A judge may allow testimony to be taken
through communication technology if all parties consent.
(2) Procedure. Any party desiring to present testimony
through communication technology must, prior to the hearing or
trial at which the testimony is to be presented, contact all parties to
determine whether each party consents to this form of testimony.
The party seeking to present the testimony must move for
permission to present testimony through communication
technology, which motion must set forth good cause as to why the
testimony should be allowed in this form.
(3) Oath. The oath must be administered for testimony
taken through communication technology in the manner provided
by Florida Rule of General Practice and Judicial Administration
2.530(b)(2)(B).
(4) Confrontation Rights. The defendant must make an
informed waiver of any otherwise applicable confrontation rights.
(e) Burden of Expense. The cost for the use of the
communication technology is the responsibility of the requesting
party unless otherwise directed by the court.
Workgroup on the Continuity of Court Operations and
Proceedings During and After COVID-19 Note
2022 Adoption. This rule is created to authorize the use of
communication technology for criminal proceedings while
safeguarding the rights of the accused. It is based on Florida Rule of
General Practice and Judicial Administration 2.530, as amended by
In re Amends. to Fla. Rules of Jud. Admin., 73 So. 3d 210, 211 (Fla.
2011), but updates and revises the text of that version of the rule
to: (1) use the terms “audio communication technology,” “audio-
video communication technology,” and “communication
technology”; (2) identify other rules in the Florida Rules of Criminal
Procedure that will continue to govern the use of audio-video
communication technology under specified circumstances; (3)
consolidate subdivisions (b) and (c) of rule 2.530, as amended in
2011, to recognize proposed amended rules 3.180(a)(3) and
3.220(o)(1) and provide that a court may, on its own motion or the
written request of a party, direct the use of communication
technology by one or more parties for attendance at a pretrial
conference, except that, before a judge may direct that the
defendant participate in the pretrial conference using
communication technology, a waiver of the defendant’s physical
attendance must be obtained pursuant to rules 3.180(a)(3) and
3.220(o)(1); (4) substitute the term “a pretrial conference” for the
phrase “a motion hearing, pretrial conference, or a status
conference” used in subdivision (b) of rule 2.530, as amended in
2011, because case law has construed the term in the context of
rules 3.180(a)(3) and 3.220(o)(1) as including a motion hearing and
a status conference; and (5) add authority for the oath to be
administered to a witness who is testifying through audio-video
communication technology by an authorized person who is not
physically present with the witness subject to specified
requirements.
III. PRELIMINARY PROCEEDINGS