Florida/Georgia Personal Injury & Workers Compensation

...The Department of Health and Rehabilitative Services then conducted an interview with the child and a medical doctor examined the child. Subsequently, charges were filed against Townsend. Before trial, the State and the defense stipulated that the child was incompetent to testify under section 90.603, Florida Statutes (1987), due to her age....

...Townsend appealed the conviction to the Fifth District Court of Appeal. The district court issued a divided en banc decision in which the majority receded from Townsend I, holding that its reliance on Perez in Townsend I was misplaced and that incompetency under section 90.603 does not render a witness unavailable for purposes of section 90.803(23)....

...In Perez, we specifically stated that a child need not be found competent to testify before that child's out-of-court statements could be found to bear sufficient safeguards of reliability to enable admission of that statement at trial. The fact that a child is incompetent to testify at trial according to section 90.603(2) does not necessarily mean that the child is unable to state the truth....

...ecause this evidence is an exception to the hearsay, the burden is on the party moving for its admission to clearly and convincingly demonstrate its reliability. I seriously doubt that the state can meet the required standard in this case. NOTES [1] Section 90.603, Florida Statutes (1987), which governs the disqualification of witnesses, provides as follows: A person is disqualified to testify as a witness when the court determines that he is: (1) Incapable of expressing himself concerning the m...

...Although in general, "every person is competent to be a witness," section 90.601, Florida Statutes (1989), a trial judge is permitted to exclude a witness when that witness is "[i]ncapable of expressing himself concerning the matter in such a manner as to be understood." § 90.603(1), Fla....

...Perez' admission of the offense to Officer Massie constitutes sufficient corroborative evidence of the offense. We reject the argument that the child must be found to be competent to testify before the child's out-of-court statements may be found to bear sufficient safeguards of reliability. Section 90.603(2), Florida Statutes (1985), provides that "[a] person is disqualified to testify as a witness when the court determines that he is ... [i]ncapable of understanding the duty of a witness to tell the truth." A young *211 child generally does not understand abstract concepts such as duty, truth, or lie. The fact that a child is incompetent to testify at trial according to section 90.603(2) does not necessarily mean that the child is unable to state the truth....

...[6] Illinois recently enacted a narrowly worded statute that creates a hearsay exception for "prosecution of a physical or sexual act perpetrated upon ... a person who was an institutionalized severely or profoundly mentally retarded person." Ill.Comp.Stat. 5/115-10 (West 1999). [7] Section 90.603, Florida Statutes (1997), governing the disqualification of witnesses provides: A person is disqualified to testify as a witness when the court determines that the person is: (1) Incapable of expressing himself or herself concerning th...

...e section 90.803(23) procedural safeguards. Reversed and remanded for proceedings consistent with this opinion. ERVIN and BARFIELD, JJ., concur. NOTES [1] The statutory provisions applicable to the competency issue raised in this appeal are sections 90.603(2) and 90.605(2), Florida Statutes (1985). Section 90.603(2) provides: A person is disqualified to testify as a witness when the court determines that he is: ........

...defendant. Although it is well-established that a trial court has broad discretion in making a determination of a child's competency to testify, see Kertell v. State, 649 So.2d 892 (Fla. 2d DCA 1995), competency is an issue of disqualification. See § 90.603(2), Fla....

...This Court has held that a witness is incompetent to testify if the witness is unable to communicate to the jury, unable to understand the duty to tell the truth, or is unable to perceive and remember events. Rutherford v. Moore, 774 So. 2d 637, 646 (Fla. 2000). Section 90.603, Florida Statutes (2007), provides that a person is disqualified as a witness if the person is incapable of expressing himself or herself concerning the matter or is incapable of understanding the duty to tell the truth....

...ror.” Id. (quoting Urbin v. State, 714 So. 2d 411, 418 n.8 (Fla. 1998)). A witness is presumed competent to testify until the contrary is established. Hawk v. State, 718 So. 2d 159, 162 (Fla. 1998); see also § 90.601, Fla. Stat. (2007). Section 90.603, Florida Statutes (2007), provides that a person is disqualified as a witness if the person is incapable of expressing himself or herself concerning the matter or is incapable of understanding the duty to tell the truth. Section 90....

...Reliability may be determined even though the declarant is unavailable. Reliability of a statement is judged as of the time of making the statement. By contrast, if a child is to testify in court, then a determination of competency to testify is made under section 90.603, Fla....

...t the hearing and was not appointed a guardian does not imply competency of the claimant. There is no authority to deny an incompetent individual the right to testify so long as he is capable of being understood and capable of testifying truthfully. § 90.603, Fla....

...denied, 368 U.S. 1003, 82 S.Ct. 637, 7 L.Ed.2d 542 (1962), overruled in part on other grounds, People v. Kurth, 34 Ill.2d 387, 216 N.E.2d 154 (1966). Monroy's sworn confession has only to meet the requirements laid down for all witnesses' testimony. Section 90.603, Florida Statutes (1985), states that a person is disqualified from testifying when he is incapable of expressing himself or incapable of understanding his duty to tell the truth....

...tween the truth and a lie, and never made the required findings. In fact, the court concluded that "[w]hat she said today was . . . by itself non [sic] descriptive. She's a five year old." The child should have been disqualified from testifying. See § 90.603(2), Fla....

...Findings and Inquiry Inadequate "Every person is competent to be a witness, except as otherwise provided by statute." § 90.601, Fla.Stat. (1995). But a "person is disqualified to testify as a witness when the court determines that he is: ... (2) Incapable of understanding the duty of a witness to tell the truth." § 90.603, Fla.Stat....

...case. Nothing indicates any attempt to disqualify her testimony by demonstrating her to be "incapable of expressing [her]self concerning the matter in such a way as to be understood" or of "understanding the duty of a witness to tell the truth." See Section 90.603, Florida Statutes (1983)....

...[1] As to competence generally, a witness is qualified to testify if he is capable "... of expressing himself concerning the matter in such a manner as to be understood ..." and is "... capable of understanding the duty of a witness to tell the truth." § 90.603, Fla....

...imately four and a half years old at the present time, was capable of observing and recalling facts, narrating those facts to the court or to a jury, and whether or not the witness had the moral sense and not only obligation to tell the truth. Under 90.603 and 90.605 this determination must be made before the court can allow a witness to proceed....

...testify at trial. The defense filed a motion for recusal, or in the alternative, a motion to allow the witness to testify. At the hearing on the motion, the judge said that after "years of watching Doctor Gervin testify," he had concluded that under section 90.603(2), Florida Statutes (2001), Gervin was a witness "incapable of understanding the duty of a witness to tell the truth." During the hearing, the judge made a number of statements characterizing Gervin as a "liar": He wouldn't know the truth if it leap [sic] up and bit him in the ass....

...* * * I'm not going to allow a perjurer to come into my courtroom. I'm clear and convinced that he's a perjurer. Gervin alleged that the judge's statements about his truthfulness are "completely and utterly false," that they were made without a hearing under section 90.603(2), that they invaded the province of the jury, and that they were made under color of state law....

...“[i]ncapable of expressing himself or herself concerning the matter in such a manner as to be understood, either directly or through interpretation by one who can understand him or her,” or “[i]ncapable of understanding the duty of a witness to tell the truth.” § 90.603, Fla....

...Nothing indicates any attempt to disqualify her testimony by demonstrating her to be “incapable of expressing [herjself concerning the matter in such a way as to be understood” or of “understanding the duty of a witness to tell the truth.” See Section 90.603, Florida Statutes (1983)....

...t made at trial. We affirm. In its motion for new trial, American Employers contended that the court had erroneously excluded the testimony of a key witness on the ground that he did not have the ability to understand his duty to tell the truth. See § 90.603(2), Fla....

...The evidence admitted at trial included K.M.’s trial testimony and her partially redacted pre-trial interview. We reject Appellant’s argument on appeal that the trial court abused its discretion in admitting K.M.’s redacted pre-trial statement under section 90.603(23), Florida Statutes (2015)....

incompetent to testify at trial according to section 90.-603(2) does not necessarily mean that the child

incapable of understanding the duty to tell the truth. § 90.603, Fla. Stat. (2011). In order to avoid discovery

...ualified to testify as a witness if he or she lacks the capacity (i) to communicate in such a manner as to be understood, (ii) to understand the duty of a witness to tell the truth, or (iii) to perceive and recollect the facts when testifying. See §§ 90.603 and 90.604, Fla. Stat. (1997); see generally C. Ehrhardt, Florida Evidence, (1999), § 603.1' at 391 (“Section 90.603 requires that a witness have the capacity to communicate and to understand the duty to tell the truth....

...e of counsel. The trial court denied Evans’ motion, finding that there was nothing in the record to indicate that the six-year-old’s competency was at issue. Evans appeals that ruling. An incompetent witness must be disqualified from testifying. § 90.603(2), Fla....

...2d DCA 1998) ("[S]ome testimony about an adult witness's mental inability to understand the concept of an oath to tell the truth, as opposed to his character flaw of having a proclivity to lie, is necessary before a court may completely disqualify a witness under... section [90.603(2) of the Florida Evidence Code]."); Katz v....

...This statement of the law, which we now suggest is erroneous, 3 is based upon the following language contained in Perez : We reject the argument that the child must be found to be competent to testify before the child’s out-of-court statements may be found to bear sufficient safeguards of reliability. Section 90.603(2), Florida Statutes (1985), provides that “[a] person is disqualified to testify as a witness when the court determines that he is ... [i]ncapable of understanding the duty of a witness to tell the truth.” A young child generally does not understand abstract concepts such as duty, truth or lie. The fact that a child is incompetent to testify at trial according to section 90.603(2) does not necessarily mean that the child is unable to state the truth....

...nd made more believable (and therefore judicially determined to be admissible) by filtering it through hearsay testimony (often of biased and hostile witnesses). This inconsistency of logic can be resolved by recognizing as an “exception” to the section 90.603(2) exclusion any judicially determined credible testimony which does not depend on the witness’s ability to understand the obligation to tell the truth. Perez presents another problem. The Perez analysis of the effect of the child’s incompetence under section 90.603(2) as it applies to the introduction of the child’s testimony under section 90.803(23), because it was not an issue in Perez , did not discuss the fact that the legislature mandated that a condition precedent to the introduction of the testimony is that the child testify or be unavailable. The court therefore did not indicate where section 90.603(2) incompetency fits into the 90.804(1) definitions of unavailability....

...Or is he merely indicating that if the hearsay statement is admissible under some recognized exception which does not require that the witness have the ability to perceive the concept of "truth", then there is no obligation for the court to make a determination of competency under section 90.603(2)? It appears to be the latter because "time, content *537 and circumstances” is the legislative language chosen for section 90.803(23); however, this standard to determine credibility in this exception only applies if the child testifies or is unavailable. The legislature in the same section seems to exclude those disqualified under section 90.603(2) from being considered "unavailable”....

...is unable to be present because of death or a then existing physical or mental illness or infirmity, or 6. is absent and the proponent of the testimony is unable to procure such witness's presence. We find the fact that a witness has been declared incompetent under section 90.603(2) meets none of the listed reasons for a determination of unavailability....

...cause Ms. Roberts is, to some degree, legally incapacitated. The trial court granted the protective order without an evidentiary hearing and without making a factual determination that Ms. Roberts should be disqualified to testify as a witness under section 90.603, Florida Statutes (2000)....

...Apparently, the trial court assumed that Ms. Roberts’ incapacity for purposes of a guardianship proceeding rendered her disqualified to testify as a matter of law. Florida law, however, only disqualifies a witness under specific circumstances. See § 90.603....

...Roberts’ advanced age and deteriorating mental status render this a case in which review on appeal cannot provide an adequate remedy. Accordingly, we quash the protective order *423 and remand to the trial court to conduct a hearing to determine whether Ms. Roberts should be disqualified from testifying pursuant to section 90.603....

...d what the truth is. The victim stated that she did not know what the truth is and she did not know that she must tell things the way they really are. Upon request of defense counsel, the trial judge ruled that the victim was incompetent to testify, § 90.603(2), Fla.Stat....

...victim’s inability to understand the duty to tell the truth met the then existing physical illness or infirmity definition of unavailability. In Townsend II, the Fifth District found that the fact that a witness has been declared incompetent under section 90.603(2) meets none of the listed reasons for a determination of unavailability....

...e right to cross examination can be constitutionally ignored. Id. at 537 n. 5. 1 We agree with the Fifth District that there is good reason that the legislature did not define unavailable as a witness to include being disqualified as a witness under section 90.603(2)....

...3253 , 106 L.Ed.2d 599 (1989), as dictum, noted that it could be read to suggest that the supreme court is of a contrary belief: *988 We reject the argument that the child must be found to be competent to testify before the child’s out-of-court statements may be found to bear sufficient safeguards of reliability. Section 90.603(2), Florida Statutes (1985), provides that ‘[a] person is disqualified to testify as a witness when the court determines that he is ... [ijncapable of understanding the duty of a witness to tell the truth.’ A young child generally does not understand abstract concepts such as duty, truth or lie. The fact that a child is incompetent to testify at trial according to section 90.603(2) does not necessarily mean that the child is unable to state the truth....