Child May Testify and Still Obtain First-and-Last Closing: Florida Supreme Court Modernizes Juvenile Procedure and Harmonizes Rules Statewide

Child May Testify and Still Obtain First-and-Last Closing: Florida Supreme Court Modernizes Juvenile Procedure and Harmonizes Rules Statewide

Introduction

In a significant rules decision, the Supreme Court of Florida approved a suite of amendments to the Florida Rules of Juvenile Procedure, effective January 1, 2026, at 12:01 a.m. The amendments address service of process, discovery, prehearing motion practice, waiver of juvenile jurisdiction, adjudicatory hearings, supersedeas on appeal, and notice for out-of-state participants in dependency proceedings. The Juvenile Court Rules Committee proposed the changes, and the Florida Bar’s Board of Governors unanimously recommended approval. One comment from the Florida Public Defender Association led the Committee to withdraw a contemplated change to rule 8.104 (Testimony by Closed-Circuit Television or Audio-Video Communication Technology); no changes were adopted to that rule in this cycle.

The most consequential legal development is a clarification of the child’s right to closing argument in delinquency adjudications: under amended rule 8.110(e), when a child presents no defense evidence other than the child’s own testimony, the child is entitled to both the initial closing argument and the rebuttal closing argument. This juvenile-specific rule meaningfully recalibrates trial strategy by allowing the child to testify without forfeiting the tactical advantage of opening and closing last.

Summary of the Opinion

  • Rule 8.040 (Process): Clarifies that, upon filing a delinquency petition where the child is not detained, the clerk must issue a summons to the child, the child’s parents, and any legal custodians, and must include instructions for attending by audio-video communication technology where applicable.
  • Rule 8.060 (Discovery): Relocates motions to take depositions to perpetuate testimony from the discovery rule to the prehearing motions rule (now 8.085(a)(7)), aligning the procedure with litigation stages; otherwise maintains the existing discovery framework, with renumbering and stylistic clarifications.
  • Rule 8.085 (Prehearing Motions and Service):
    • Creates a dedicated subdivision for motions to perpetuate testimony (8.085(a)(7)).
    • Streamlines service practice by directing parties to the Florida Rules of General Practice and Judicial Administration (rather than repeating detailed service mechanics within the juvenile rules).
    • Requires that any attorney signing a pleading be duly licensed to practice law in Florida.
  • Rule 8.105 (Waiver of Jurisdiction): Clarifies that the bail provision in subdivision (c) applies only where the right to bail exists, aligning the juvenile rule with Florida Rule of Criminal Procedure 3.121(a)(7).
  • Rule 8.110 (Adjudicatory Hearings): Ensures that if the child offers no evidence other than the child’s own testimony, the child is entitled to both the first and last closing arguments.
  • Rule 8.145 (Supersedeas on Appeal): Deletes the “Preeminence of Rule” subdivision, acknowledging that in the event of conflict, the Florida Rules of Appellate Procedure govern (as reflected in rule 2.130).
  • Rule 8.225 (Process, Diligent Searches, and Service of Pleadings and Papers): For out-of-state persons in dependency proceedings, clarifies that if a hearing will be conducted remotely or via hybrid communication technology, notice need be provided at least 72 hours before the hearing (aligning with the 72-hour in-state notice standard), rather than 20 days applicable to in-person hearings.
  • Rule 8.104: No amendment adopted; the Committee withdrew the proposal in response to the Florida Public Defender Association’s comment.
  • Effective date: January 1, 2026. A motion for rehearing does not alter the effective date.

Analysis

Authorities and Precedents Cited

  • Constitutional and rulemaking authority: Article V, section 2(a), Florida Constitution; Florida Rule of General Practice and Judicial Administration 2.140(b) (procedures for amending rules).
  • Bail alignment: Florida Rule of Criminal Procedure 3.121(a)(7) (referenced by the Court for aligning juvenile bail language to circumstances “where the right to bail exists”). The substantive right to pretrial release is grounded in article I, section 14 of the Florida Constitution and implemented primarily through rule 3.131; the Court’s cross-reference signals alignment in terminology and scope across rule sets.
  • Appellate supremacy in conflicts: Florida Rules of Appellate Procedure govern where rules conflict; the Court cites rule 2.130 to emphasize hierarchy and conflict resolution.
  • Discovery cross-references:
    • Florida Rules of Civil Procedure (procedural mechanics for depositions where not in conflict).
    • Florida Evidence Code (including “similar fact evidence” reference in rule 8.060(a)(2)(A), which cites section 90.402(2)).
    • Section 27.04, Florida Statutes (state attorney’s authority to take statements of defense witnesses).
  • Communication technology: The juvenile rules now consistently reference appearance by audio-video communication technology and “communication technology,” dovetailing with statewide practice under the Rules of General Practice and Judicial Administration (e.g., rule 2.530).

Notably, this rules opinion is not an adjudication of a dispute but a normative exercise of the Court’s rulemaking power. The “precedents” are therefore rule-based and statutory cross-references that ground and harmonize the amendments, rather than case holdings driving a merits decision.

Legal Reasoning

The Court’s reasoning is pragmatic and harmonizing:

  • Stage-appropriate procedure: Moving motions to perpetuate testimony from the discovery rule (formerly 8.060(e)) to the prehearing motions rule (8.085(a)(7)) recognizes that perpetuation is a distinct pretrial application, often tied to witness unavailability and preservation rather than ordinary discovery. This reorganization enhances clarity for litigants and judges, aids calendaring, and prevents confusion between discovery depositions and perpetuation depositions.
  • Rule harmonization and hierarchy:
    • Service mechanics are consolidated by reference to the Rules of General Practice and Judicial Administration. This avoids duplicative and potentially conflicting prescriptions spread across rule sets.
    • Eliminating 8.145(b)’s claim of “preeminence” aligns juvenile appellate supersedeas issues with the Florida Rules of Appellate Procedure in the event of conflict. By reaffirming the hierarchy (via rule 2.130), the Court reduces uncertainty and ensures that appellate procedure remains uniform across case types.
  • Substantive fairness in adjudication: The change to rule 8.110(e) expands a child’s ability to testify in their own defense without losing the strategic advantage of opening and closing last, provided the child presents no other evidence. This is a child-centered adjustment, reflecting the unique status of juveniles and the non-jury, rehabilitative aims of delinquency adjudications. It mitigates a prior dilemma: having to choose between testifying (potentially essential to credibility or intent) and preserving the tactical benefit of first-and-last closing arguments.
  • Doctrinal alignment on bail: By clarifying that rule 8.105(c)’s bail proviso applies only where the right to bail exists, the Court harmonizes juvenile waiver proceedings with criminal practice, avoiding any implication that juvenile transfer to adult court creates bail rights that the constitution and criminal rules otherwise withhold in non-bondable offenses.
  • Remote appearance and notice: In dependency cases, allowing 72-hour notice for out-of-state persons when hearings are remote or hybrid aligns notice periods across in-state and out-of-state participants for technology-enabled proceedings, facilitating more responsive and accessible participation.
  • Professional responsibility: The express requirement that a signing attorney be “duly licensed to practice law in Florida” underscores the Court’s insistence on proper licensure and curbs unauthorized practice in juvenile matters.

Impact

The amendments will have practical and strategic consequences across juvenile practice:

  • Trial strategy in delinquency adjudications:
    • Defense counsel can now advise children that they may testify without sacrificing the powerful advantage of opening and closing last—so long as no other defense evidence is presented. Expect more strategic use of brief, tightly focused child testimony in bench trials, particularly on intent, identification, or mitigation.
    • Prosecutors may adjust presentation anticipating defense rebuttal even where the defense calls only the child. Bench judges should ensure the order of closings reflects the amended rule.
  • Prehearing motion practice:
    • Requests to perpetuate testimony will be calendared and adjudicated like other prehearing motions, likely resulting in more structured showings of materiality and unavailability and earlier resolution of preservation issues.
    • Litigants should prepare verified applications or supporting affidavits detailing witness unavailability and materiality as now codified in 8.085(a)(7).
  • Appellate practice:
    • With 8.145(b) deleted, parties must look to the Florida Rules of Appellate Procedure for supersedeas details. Any reliance on juvenile-specific supremacy is no longer available where a conflict exists.
  • Remote participation:
    • Dependency courts and clerks can move more quickly to include out-of-state participants in remote or hybrid hearings with 72-hour notice, enhancing inclusion, reducing travel burdens, and promoting timely permanency planning.
  • Service and filing:
    • By referencing the Rules of General Practice and Judicial Administration for service, the juvenile rules reduce fragmentation. Practitioners should confirm compliance with rule 2.516 (e-service) and related provisions rather than relying on legacy juvenile rule text.
  • Bail after waiver:
    • Courts and counsel should be guided by constitutional and criminal-rule limits on pretrial release after waiver to adult court. The juvenile rule now clearly tracks those limits.

Complex Concepts Simplified

  • First-and-last closing arguments: In Florida practice, the party with the burden (the State) typically has the last word. Historically, a defendant could obtain the last closing only by offering no defense evidence at all. Under the amended juvenile rule, a child who offers no evidence other than their own testimony is still entitled to (1) the initial closing argument and (2) a rebuttal closing after the State’s closing. This balances fairness when a juvenile’s credibility is central but the defense elects not to call other witnesses.
  • Waiver of jurisdiction: A process by which a juvenile court waives its jurisdiction so a child can be tried as an adult. It can be demanded by the child (voluntary waiver) or requested by the state (involuntary waiver), subject to statutory criteria and a hearing. The amendment clarifies bail’s availability is limited to offenses where bail is permitted by law.
  • Deposition to perpetuate testimony: A deposition taken not for ordinary discovery but to preserve a witness’s testimony for later use at trial when there is a risk the witness may be unavailable. The rule now requires a verified or affidavit-supported application showing unavailability and materiality, and it is housed in the prehearing motions rule.
  • Supersedeas: A stay of the lower court’s order pending appeal. The juvenile rules no longer purport to take precedence over other court rules in this domain; the Florida Rules of Appellate Procedure control in case of conflict.
  • Communication technology and remote hearings: Proceedings may be conducted using audio-video communication technology. The rules now expressly contemplate summons and notices containing instructions for remote attendance, and permit shortened 72-hour notice for remote/hybrid dependency hearings involving out-of-state recipients.
  • Service and e-service: Service of pleadings and papers in juvenile cases is governed generally by the Rules of General Practice and Judicial Administration (notably rule 2.516 on service by e-mail), promoting uniform, statewide electronic service practices.
  • “Similar fact evidence”: The discovery rule references disclosure of potential “similar fact evidence.” Practitioners commonly associate this concept with section 90.404(2), Florida Statutes (often called “Williams rule” evidence). The rule text references section 90.402(2); practitioners should consult the Evidence Code and current caselaw when analyzing disclosure obligations for similar fact evidence.

Rule-by-Rule Highlights and Practitioner Notes

Rule 8.040 (Process)

  • Summons must issue to the child, the parents, and any legal custodians, with at least 24 hours’ notice before the hearing; if remote appearance is contemplated, the summons must include attendance instructions.
  • If the child is detained, process follows the arraignment rule for detained children.
  • Service by mail to out-of-state parents/custodians if address known; service may be waived.

Rule 8.060 (Discovery)

  • Motions to perpetuate testimony are removed to rule 8.085(a)(7). Discovery depositions remain governed by 8.060(d) and the Florida Rules of Civil Procedure where not in conflict.
  • Depositions of Category C witnesses are restricted; depositions in misdemeanor-only or criminal traffic delinquency cases are presumptively disallowed absent good cause (subject to the exception when the State takes statements of defense witnesses under section 27.04).
  • Obligations to disclose any information tending to negate guilt remain robust; protective orders and in camera/ex parte mechanisms are preserved.

Rule 8.085 (Prehearing Motions and Service)

  • New 8.085(a)(7) codifies the requirements for motions to perpetuate testimony, including verification or affidavit support and a showing of unavailability, materiality, and necessity to prevent a failure of justice.
  • Service and filing are governed by the Rules of General Practice and Judicial Administration (e.g., rule 2.516 e-service), consolidating service practice statewide.
  • Pleadings signed by an attorney must be signed by one duly licensed to practice in Florida; unrepresented parties must sign and include contact information.

Rule 8.105 (Waiver of Jurisdiction)

  • Changes clarify that bail may be set only “where the right to bail exists,” aligning with criminal rules and constitutional constraints on non-bondable offenses.
  • Procedural clarity on issuance of orders, service, and delivery to the sheriff is maintained.

Rule 8.110 (Adjudicatory Hearings)

  • In delinquency bench trials, if the defense presents no evidence other than the child’s own testimony, the child is entitled to make the initial closing argument and a rebuttal closing after the State—restating and expanding the child’s closing-argument rights in a way tailored to juvenile practice.
  • The rule maintains safeguards on the child’s right against self-incrimination and prohibits prosecutorial comment on the child’s decision not to testify.

Rule 8.145 (Supersedeas on Appeal)

  • Deletion of the “Preeminence of Rule” provision reduces conflict; parties must follow the Florida Rules of Appellate Procedure for stays pending appeal.

Rule 8.225 (Process, Diligent Searches, and Service in Dependency)

  • Out-of-state notice: 20 days for in-person hearings; 72 hours when the hearing is remote or hybrid with communication-technology instructions provided—harmonizing with the 72-hour in-state standard for remote participation.
  • E-service mechanics align with the Rules of General Practice and Judicial Administration, including the requirement that attorneys designate primary e-mail addresses upon appearing.

Practical Guidance and Implementation

  • Effective date and transition: The amendments take effect January 1, 2026. A motion for rehearing does not delay the effective date. Courts should update standing orders, forms, and calendaring protocols in late 2025 to ensure compliance at the turn of the year.
  • For defense counsel:
    • Integrate the new closing-argument rule into trial strategy. Consider narrowly tailored child testimony to preserve the first-and-last closing advantage while minimizing exposure on cross-examination.
    • When seeking to perpetuate testimony, file verified or affidavit-supported motions early, with concrete facts on unavailability and materiality.
  • For prosecutors:
    • Anticipate defense retention of first-and-last closing even when the child testifies; plan the State’s closing to address potential defense rebuttal.
    • Where appropriate, oppose depositions in misdemeanor-only matters absent good cause; ensure disclosures relating to similar fact evidence are timely and complete.
  • For clerks and courts:
    • Ensure summons and notices for remote hearings include attendance instructions and reflect the 72-hour notice standard where applicable.
    • Route service questions to the Rules of General Practice and Judicial Administration; purge obsolete local practices inconsistent with statewide e-service requirements.
  • Licensing compliance: Verify that all pleadings are signed by Florida-licensed attorneys of record, particularly where multijurisdictional or pro hac vice participation may be contemplated.

Conclusion

The Court’s October 16, 2025 opinion accomplishes three broad objectives. First, it modernizes and clarifies juvenile procedure to reflect contemporary practice—especially around remote hearings, e-service, and the staging of prehearing motions. Second, it harmonizes juvenile rules with the broader Florida procedural ecosystem, expressly yielding to the Florida Rules of Appellate Procedure where conflicts arise and aligning bail terminology with criminal rules. Third, and most importantly for trial advocacy, it establishes a juvenile-specific closing-argument rule: a child may testify and still retain both the opening and concluding closings so long as the defense offers no other evidence.

Collectively, these changes improve clarity, fairness, and uniformity in juvenile proceedings. They will shape how lawyers prepare and try delinquency cases, how courts schedule and conduct remote and hybrid hearings, and how appellate stays are pursued. Practitioners should update their forms, checklists, and strategies in advance of the January 1, 2026 effective date.

Key Takeaways

  • Juvenile closing-argument rights expanded: a child who testifies but offers no other defense evidence gets first-and-last closing (rule 8.110(e)).
  • Perpetuation of testimony is now a prehearing motion with specific verification and necessity showings (rule 8.085(a)(7)).
  • Service practices point to the Rules of General Practice and Judicial Administration; ensure e-service compliance.
  • Bail after waiver clarified to apply only where the right to bail exists (rule 8.105(c)).
  • Appellate supersedeas conflicts resolved in favor of the Florida Rules of Appellate Procedure; juvenile rule no longer claims preeminence (rule 8.145).
  • Out-of-state dependency participants need only 72-hour notice for remote/hybrid hearings with communication-technology instructions (rule 8.225(a)(4)(B)).
  • Effective January 1, 2026; rehearing does not delay effectiveness.

Case Details

Year: 2025
Court: Supreme Court of Florida

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