Discovery is a general term used by lawyers to encompass a vast range of methods to obtain information from the opposing party. In Florida State criminal cases, once the defendant makes a demand, the State is required to turn over all documents and evidence that will be used at trial. The State is also required to turn over all discovery that consists of exculpatory or impeaching information and evidence that is material to the guilt or innocence or to the punishment of a defendant (this evidence is also referred to as “Brady” evidence).
Once the State provides the discovery, the defense attorney the provides a copy of this evidence to the defendant in order to review the status of the case. The defense attorney will also be able to better prepare a defense after receiving the evidence.
Examples of common discovery material include:
- Police reports, written or oral statements from witnesses, booking reports, toxicology results, photographs, and DNA evidence
- Copies of arrest and search warrants
- Names and addresses of all intended witnesses
- Any expert witness reports intended to be used during trial
- Virtually any other form of “raw” evidence obtained by the prosecutor’s office
TIP: It is vital that you receive as much discovery as early as possible in the case. If you have not received at least some discovery within sixty days of your arraignment, this is a sign that there may be problems! Don’t settle for excuses such as “I haven’t received it yet.” If you have not had a meeting to discuss the discovery in your case and it is been more than 120 days since the start of your case, please call me immediately for a consultation.
Florida’s Discovery Rules
Florida has some of the most liberal discovery rules in the country. The intent is to better the criminal justice process by avoiding trial by ambush and giving the defendant an opportunity for a fair trial. In some states, such as Georgia, Kentucky, and Alabama, the defendant does not have a right to take the deposition of state’s witnesses before trial. Those states, like the Federal system, are trial by ambush.
Of the commonly provided discovery, some examples of routinely overlooked discoverable items are:
- Maintenance logs or reports for breath test instruments and speed detection devices
- Witnesses criminal histories
- Disciplinary reports and training logs of officers in the case
- Use of Force reports
- 911 calls and Jail videos
TIP: The discovery process relies heavily on the competence of the prosecutor assigned to the case. If the prosecutor did not request an item, the item may be destroyed by procedure. Thus, many items that may contain exculpatory information are lost or destroyed after a very short period. ENSURE THAT YOU HAVE DISCUSSED ANY POTENTIAL EVIDENCE WITH YOUR ATTORNEY. For example, in some jurisdictions, jail videos may be destroyed after 30 days!
What do I do if I am in jail?
Being incarcerated during this process can be frightening! If you are incarcerated during the discovery process, it is important that you maintain communication with your attorney. WARNING: DO NOT DISCUSS YOUR CASE ON THE TELEPHONE WITH ANYONE AND DO NOT DISCUSS THE CASE WITH ANY VISITORS OTHER THAN YOUR ATTORNEY!Most, if not every, jail calls are recorded. The prosecutor has computer access to the jail call system and he or she can listen to every jail call that you make. They can and do use information obtained in the jail calls against clients. I have personally seen dozens of cases resulting in convictions because of evidence obtained during jail calls.
What do I need to turn over to the State?
Due to reciprocal discovery laws, the defense is required to share certain information with the State. This information may be restricted successfully through Fifth Amendment claims, but the Defendant is required to turn over any witnesses or documents it has obtained and will use at trial. A request to produce an defense alibi to the state means that the names of persons corroborating this alibi must be provided. Make sure you have discussed any potential witnesses with your attorney.
FEDERAL DISCOVERY RULES
Unlike Florida State Courts, the federal rules are dramatically different in almost every respect. The government is not required to provide the witnesses for deposition. The federal system allows trial by ambush. Unlike Florida, the federal government has an infinite amount of resources to transport witnesses and obtain experts. Without an aggressive attorney, the federal government could, and does, literally financially crush defendants into submission. It is critical that you obtain an attorney who has criminal experience in dealing with the federal government.
The rules related to discovery in federal criminal cases are set forth in Rule 16, of the Federal Rules of Criminal Procedure. If the Defendant specifically requests, the Defendant is entitled to receive inspect, copy or photograph:
- Any statements he may have made, whether written or recorded, that are in the possession of the government
- The Defendant’s prior record as known or available to the government
- Documents and tangible objects that are material to either the prosecution’s case or the Defendant’s defense
- The results of any tests or reports of examination that are material to either the prosecution’s case or the Defendant’s defense
TIP: The Defendant must bear in mind that initiating the request for documents, test results, tangible objects and so forth obligates him to reciprocate.
Generally speaking, in addition to the foregoing, there are three categories of information to which the defense is entitled in a federal case.
- Exculpatory material; see Brady v. Maryland, 373 U.S. 83 (1963)
- Impeachment material; see Giglio v. United States, 405 U.S. 150 (1972)
- Prior statements of witnesses; see the Jencks Act, Title 18, §3500
In response to the clearly established affirmative obligation to provide the Defense with these materials, the Office of the United States Attorney typically relies upon the boilerplate such as “we are aware of our obligations.” There is a substantial difference between awareness and compliance. In fact, many cases have been reversed because of the United States Attorney’s Office failure to comply with these basic rights. See United States v. Vozzella, 124 F.3d 389.
JENCKS ACT As if the federal government didn’t have enough of an advantage, the legislature enacted the Jencks Act, entitled Demands for Production of Statements and Reports of Witnesses which states in pertinent part:
(a) In any criminal prosecution brought by the United States, no statement or report in the possession of the United States which was made by a Government witness or prospective Government witness (other than the defendant) shall be the subject of subpoena, discovery, or inspection until said witness has testified on direct examination in the trial of the case.
(b) After a witness called by the United States has testified on direct examination, the court shall, on motion of the defendant, order the United States to produce any statement of the witness in the possession of the United States which relates to the subject matter as to which the witness has testified
(c) If the United States claims that any statement ordered to be produced under this section contains matter which does not relate to the subject matter of the testimony of the witness, the court shall order the United States to deliver such statement for the inspection of the court in camera . . .
(d) If the United States elects not to comply with an order of the court under subsection (b) or (c) hereof to deliver to the defendant any such statement, or such portion thereof as the court may direct, the court shall strike from the record the testimony of the witness, and the trial shall proceed unless the court in its discretion shall determine that the interests of justice require that a mistrial be declared.
(e) The term ”statement”, as used in subsections (b), (c), and (d) of this section in relation to any witness called by the United States, means –
(1) a written statement made by said witness and signed or otherwise adopted or approved by him;
(2) a stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement made by said witness and recorded contemporaneously with the making of such oral statement; or
(3) a statement, however taken or recorded, or a transcription thereof, if any, made by said witness to a grand jury.
Instead of leveling the playing field, the Jencks Act actually makes it more difficult for defendants to obtain witnesses statements.
EXAMPLE: Suppose you wake up this morning to be greeted by the Marshal Service executing a warrant for your arrest. The government contends that you were involved in narcotics trafficking as well as the associated conspiracies to import, possess with intent to distribute and launder the proceeds thereof. You could be looking at spending the rest of your life in jail. If the indictment was based solely upon the testimony of three inmates who currently reside at a federal correctional facility due to narcotics charges of their own, you will have no idea who is saying what and won’t find out until trial. Why? Because they have not testified!