THE RIGHT IN FLORIDA TO CONFRONT EXAMINING COMMITTEE MEMBERS IN A CONTESTED INCAPACITY GUARDIANSHIP PROCEEDING
The Fourteenth Amendment of the United States Constitution, and Article I, Section 9 of the Florida Constitution, provided that no person shall be deprived of their fundamental rights without due process of law. Procedural due process under the Florida Constitution guarantees to every citizen the right to have that course of legal procedure which has been established in Florida’s judicial system for the protection and enforcement of private rights applied in his or her case. For these reasons, the Florida Legislature has required that in the adjudicatory hearing on a petition alleging incapacity, the partial or total incapacity of the person must be established by clear and convincing evidence. The procedures to determine incapacity and the minimum requirements to comply with the due process have been codified by the Florida Legislature at Florida Statute §744.331. These include specific content of examining committee reports and strict time frames within which an examining committee shall be appointed by a court and within which the examining committee must complete their examinations and submit their reports to the court for consideration.
In almost every setting where important decisions turn on questions of fact, due process requires an opportunity to confront and cross-examine adverse witnesses. A Florida incapacity adjudicatory proceeding is not an exception to the constitutional requirements of due process. In fact, the Florida Guardianship Act requires that the adjudicatory hearing on incapacity be conducted “in a manner consistent with due process.” Florida Statute §744.331(5)(a)
As the (non-final) opinion Bishullang Shen v. Kathleen Parks, 2012 Fla. App. LEXIS 18965 (Fla. 4th DCA, 4D11-4271, October 31, 2012) illustrates, due process in the Florida Guardianship Code requires that in order for examining committee reports to be admitted, those reports have to meet the requirements of admissible evidence under the Florida Evidence Code. Currently, the Florida Evidence Code does not contain a hearsay exception for examining committee reports to be admitted into evidence.
In Shen, an adjudicatory hearing based upon a petition for incapacity was conducted wherein the examining committee reports were accepted by the trial court even though the alleged incapacitated person objected to the admission to those reports based upon hearsay. None of the committee members testified and there was no other testimony on which the court could base a finding on incapacity. The 4th District Court of Appeals reversed finding that because the Guardianship Act at Florida Statute §744.1095 provides that at any hearing under the guardianship law, the alleged incapacitated person has the right to remain silent, testify, present evidence, call witnesses, confront and cross-examine all witnesses and have a hearing, open or closed, the Rules of Evidence apply to those proceedings. The court stated that “even if it could be said that the Guardianship Statute permits the court to consider the comprehensive examination portion of the reports in the face of the hearsay objection, the statute does not reference the court’s consideration of the remainder of the report, which includes the diagnosis, prognosis, recommended treatment, evaluation of rights and finding of incapacity and need for a limited or plenary guardianship.”
What about the confrontation clause?
Interestingly, the Shen court refused to address Shen’s argument that the statute provides a right to confront witnesses, which requires the live testimony of the committee members. Typically, when someone’s liberty interest is at stake, the Sixth Amendment of the United States provides that the person “enjoy the right … to be confronted with the witnesses against him …” This right to confrontation is applicable to the states, including Florida, through the Fourteenth Amendment and is repeated in Article I, Section 16 of the Florida Constitution, which states in part, “but the person whose liberty is at stake, shall have the right … to confront at trial adverse witnesses …” It would appear from a cursory review of both State and Federal Constitutional law that the confrontation clause would apply to Florida guardianship proceedings to prohibit the same hearsay evidence contained in the examining committee reports that were prohibited in Shen from being admitted based upon the violation of the alleged incapacitated person’s rights under the confrontation clause. This is because the confrontation clause is concerned with testimonial hearsay. While the United States Supreme Court has declined to provide a complete definition of testimonial hearsay, various formulations of the definition of “testimonial” statements include materials such as affidavits, prior testimony when the party was unable to cross-examine, or similar pretrial statements that would reasonably be expected to be used in the prosecution of a legal proceeding involving a liberty or property right. It would also include extra-judicial statements contained in formalized testimonial materials such as depositions or prior testimony. The Supreme Court of the United States has stated previously that “Statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial” constitute testimonial hearsay and appear to be that the same subject that was addressed by the Shen court.
The Shen opinion creates an opportunity for the Bar, the public, and the Florida Legislature to address, consider, and balance the sensitive issues of an alleged incapacitated person’s constitutional rights under the Federal and State Constitution to have the ability to cross-examine witnesses who are testifying against him or her in a proceeding wherein his liberty interest is at stake, with the practical problem of requiring examining committee members to physically appear at multiple hearings (wherein they will most likely not be compensated) thereby creating an economic hardship on an already cash strapped mental health and judicial system.