MOTION TO DECLARE FLORIDA
STATUTE 90.803(23) UNCONSTITUTIONAL

Defendant, by and through the undersigned attorney, and moves this honorable court to enter its order declaring Section 90.803(23) of the Florida Statutes unconstitutional on its face and as applied in this case, and says:
1. Defendant is charged by amended information with three counts of sexual battery and one count of lewd or lascivious molestation, offenses which are punishable by thirty years each.
2. The state has filed its notice to introduce at the trial of this cause hearsay evidence of child testimony pursuant to Florida Statute Section 90.803(23).
3. Said statutes provides:
(a) Unless the source of information or the method or circumstances by which the statement is reported indicates a lack of trustworthiness, an out-of-court statement made by a child victim with a physical, mental, emotional, or developmental age of 11 or less describing any act of child abuse or neglect, any act of sexual abuse against a child, the offense of child abuse, the offense of aggravated child abuse, or any offense involving an unlawful sexual act, contact, intrusion, or penetration performed in the presence of, with, by, or on the declarant child, not otherwise admissible, is admissible in evidence in any civil or criminal proceeding if:

1. The court finds in a hearing conducted outside the presence of the jury that the time, content, and circumstances of the statement provide sufficient safeguards of reliability. In making its determination, the court may consider the mental and physical age and maturity of the child, the nature and duration of the abuse or offense, the relationship of the child to the offender, the reliability of the assertion, the reliability of the child victim, and any other factor deemed appropriate; and

2. The child either: a. Testifies; or b. Is unavailable as a witness, provided that there is other corroborative evidence of the abuse or offense. Unavailability shall include a finding by the court that the child's participation in the trial or proceeding would result in a substantial likelihood of severe emotional or mental harm, in addition to findings pursuant to s. 90.804(1).

(b) In a criminal action, the defendant shall be notified no later than 10 days before trial that a statement which qualifies as a hearsay exception pursuant to this subsection will be offered as evidence at trial. The notice shall include a written statement of the content of the child's statement, the time at which the statement was made, the circumstances surrounding the statement which indicate its reliability, and such other particulars as necessary to provide full disclosure of the statement.

(c) The court shall make specific findings of fact, on the record, as to the basis for its ruling under this subsection.

(emphasis supplied).

4. The provisions of said statute violate defendant’s right to confrontation of the witnesses against him as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and by Article I, Section 16 of the Florida Constitution, and by the doctrine of Crawford v. Washington, 541 U.S. ____, 124 S. Ct. 1354, 158 (Ed. 2d 177 (2004).
5. The Sixth Amendment to the United States Constitution provides:
In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him . . . .

6. In Crawford, the United States Supreme Court rejected the prior threshold of "reliability" as a basis for admissibility of hearsay testimony, and in so doing has overruled the prior doctrine of Ohio v. Roberts, 448 U.S. 56, 100 S. Ct. 2531 L.Ed. 597 (1980).
7. Florida Statute Section 90.803(23) fails to meet constitutional muster because it permits hearsay testimony to be admitted against an accused based on "reliability," rather than on whether the hearsay testimony has been tested by cross-examination as now required by Crawford. The Crawford holding in pertinent part provides:
Where testimonial statements are involved, we do not think the Framers meant to leave the Sixth Amendment’s protection to the vagaries of the rules of evidence, much less to amorphous notions of "reliability." . . . Admitting statements deemed reliable by a judge is fundamentally at odds with the right of confrontation. To be sure, the Clause’s ultimate goal is to ensure reliability of evidence, but it is a procedural rather than a substantive guarantee. It commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination.

124. S. Ct. at 1370. (emphasis supplied).
WHEREFORE, the defendant prays this honorable court grant said motion and enter its order declaring Florida Statute Section 90.803(23) unconstitutional both on its face and as applied to this case.