DISCOVERY
101
Londa Adkins
BARRY UNIVERSITY
JUVENILE JUSTICE CENTER
LUNCH & LEARN
April 30, 2010
DISCOVERY
 CASE PLANNING
 THEORY OF THE CASE
 INVESTIGATION
GOAL: to seek as much information as possible
DISCOVERY
DEPENDENCY
Fla.R.Juv.P.
8.245
Largely Civil in nature
DELIQUENCY
Fla.R.Juv.P 8.060
1 st PRIORITY
CLIENT’S STORY
 Speed is essential
 Meet early and often
PROSECUTION’S THEORY
• Subpoena documents at
initial hearing
DAY OF INITIAL HEARING
• SUBPEONA DOCUMENTS- always get school
records and police reports
• DIRECT INVESTIGATION- start tracking down
and interviewing prosecution and defense
witnesses
• RETAIN EXPERTS
• SET UP MEETING W/PROSECUTOR
PUBLIC DEFENDER CASELOADS
MAXIMIZE EFFICIENCY
1. Boiler plate motions
2. Recurrence of fact patterns
3. Colleagues- motion/brief banks
4. Investigators
THEORY OF CASE
Drives all aspects of case preparation
interview priority
tasks in investigation
identification of witnesses
what questions to ask
use of experts
motions to file
CASE PLANNING
PRIORITIZE ACTIONS
• CLIENT’S STORY
• PROSECUTION’S VERSION
PETITION
• Examine for deficiencies
• Jurisdictional defects
• Double jeopardy
• Number of incidents
• Number of participants
• Tangible evidence
• Statements
• Identification testimony
Informal measures
• Filing motions-requires prosecutor to respond
with pleading that will reveal aspects of their
case
• Conducting hearings such as probable cause
and suppression
• Conversations with prosecutor
Pretrial
INFORMAL
 CONFERENCE
 DISCOVERY LETTER
FORMAL
 MOTIONS
 Bill of Particulars, List of
Prosecution Witnesses
PRE-TRIAL MOTIONS
• MOTION TO DISMISS
• MOTION TO SEVER COUNTS
• MOTION FOR SEVERANCE
Why interview prosecution witnesses?
Learn facts about the theory of
case
• Pinpoint weaknesses
• Develop rebuttal
• Elicit statements before
coaching
Find unnamed witnesses
• Tangible evidence
• Timelines
DISCOVERY
• At any time after the filing
of a delinquency petition,
the child may file a notice
to participate in discovery
to gain access to written
statements, witness lists,
and other information in
the state’s possession
specified by Fla.R.Juv.P.
8.060(a)(2)
• Rule 8.060(a)(1) The
prosecutor must respond
within 5 days of the
notice and permit
discovery to be made
8.060(a)(2)
DUTY OF STATE
Within 5 days of service of the notice of
discovery, the state must serve a written
discovery exhibit on the child. 8.060(a)(2)
This exhibit categorizes witnesses. Categories
determine whether the witness may be
deposed.
CATEGORY A
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Eyewitnesses
Alibi and rebuttal to alibi witnesses
Persons who were present when a recorded or
unrecorded statement was taken from or made by the child
or a codefendant, who shall be identified separately
Investigating officers
Known by the state to have material evidence that
would negate the guilt of the child
Child hearsay witnesses
Expert witnesses who have not provided a written
report and a curriculum vitae or who will not testify to test
results or give opinions that will have to meet the test in
Frye v. United States, 293 F.1013.
CATEGORY B
witnesses who are not listed in Category A or C
CATEGORY C
witnesses who performed only ministerial
functions or whom the state does not intend
to call at the adjudicatory hearing and whose
involvement with and knowledge of the case
are fully set out in reports or other statements
furnished to the defense.
RECIPROCAL DISCOVERY
• This filing triggers reciprocal discovery
provisions:
– Written list of all persons whom the child expects
to call as witnesses at the hearing
– Written discovery exhibit which shall disclose to
the petitioner and permit inspection, copying,
testing, and photographing the following
information and material in the child’s possession
or control:
8.060(b)(B)(i-iii)
• The statement of any person whom the child
expects to call as a trial witness other than
that of the child
• Reports or statements of experts made with
the particular case, including results of
physical or mental examinations and of
scientific tests, experiments, or comparisons
• Any tangible papers or objects which the child
intends to use in the hearing
NOTICE OF DEFENSE OF ALIBI
• UPON DEMAND OF STATE ATTORNEY
– Child must provide state attorney with details of
the alibi as to time and place where the child
claims to have been at the time of the alleged
offense
– The names and addresses of such witnesses as
may appear to testify
– Not less than 10 days before the trial date
Rebuttal Witness List
• The state attorney shall, within 5 days of the
receipt of notice, provide the child with a list
of such witnesses to be called to rebut the
alibi testimony
Use of Deposition
May be used to impeach testimony of the
deponent at ANY hearing
If a party introduces only part of a deposition,
any other party may introduce or require
introduction of other parts that ought to be
considered.
Rule 8.060(d)(4)
DEPOSITIONS
RULE 8.060(d)(2)(E) provides that the Florida
Rules of Civil Procedure govern how a
deposition proceeds in the absence of a
provision in the juvenile rules.
Fla.R.Juv.P. 8.060(d)
DEPOSITIONS
• Category A: may be deposed without leave of
court
• Category B: only on a finding of good cause by
the court
• Category C: cannot unless the court
redesignates the witness as Cat. A or B Rule
8.060(d)(2)(F)-(d)(2)(H).
NO DEPOSITION
if petition alleges only a misdemeanor or a traffic
offense, no depositions may be taken without
leave of court for good cause shown
Rule 8.060(d)(2)(I)
Logistics
Written notice of the intent to take discovery deposition must be given to
each party: must include
• Time & place
• Name of person to be examined
• Statement of good faith effort was made to coordinate the deposition
schedule Rule8.060(d)(2)(A)
• Inside of county of adjudication-must take place at the building in which
the hearing is to be held, agreed upon location or location designated by
the court
• Outside of county- must take place at the court reporter’s office in the
county and state of witness’s residence, another agreed upon location, or
designated by the court.
PROCEDURE
• Subpoenas may be issued by the clerk or court in
accordance with Rule 8.060(d)(2)(B)
• Rule 8.060(d)(2)(E) allows the child’s attorney of
record to issue the subpoena for a deposition,
but not a subpoena duces tecum.
• Limit of 1 deposition per person without the
consent of the parties or order of the court. Rule
8.060(d)(2)(D).
• Failure to obey a subpoena for taking a
deposition subjects a person to contempt of
court. Rule 8.060(d)(5).
LAW ENFORCEMENT
No subpoena necessary for deposition of law
enforcement officer. Officer must appear for
deposition when :
Written notice is delivered to an address
designated by the law enforcement agency OR
department OR if no address has been
designated, to the address of the law
enforcement agency or department, 5 days
before the deposition.
Rule 8.060(d)(8)
WITNESS UNDER 16 YEARS
Must be videotaped on demand of a parties
unless otherwise ordered by the court. The
court may also order videotaping of a
deposition in the presence of the Judge or a
special magistrate for a witness with “ fragile
emotional strength”
Rule 8.060(d)(9)
SANCTIONS
Willful violations by counsel or a party not
represented by counsel of an applicable discovery
rule or an order issued pursuant thereto may
subject counsel or party not represented by
counsel to appropriate sanction by the court.
Sanctions may include, but are not limited to,
contempt proceedings against the attorney or
party not represented by counsel as well as the
assessment of costs incurred by the opposing
party, when appropriate.
SANCTIONS
DEFENSE
Defense counsel should ensure
that any delays caused by
the state are charged to the
state, without extension of
the speedy trial provisions.
State v. T.G., 990 S.2d 1183(Fla.
3d DCA 2008)
PROSECUTION
The state may seek an extension
of the speedy trial time if the
defense has caused the delay.
Rule 8.090(f)(2)(F)
The state may also be compelled
to provide a statement of
particulars if the court finds
that the delinquency petition
is so vague, indistinct, or
indefinite as to mislead pr
prejudice the child in
preparation of a defense.
Rule 8.035(d)
Sanctions and Limitations
8.060(m) If at any time during the course of the proceedings it is
brought to the attention of the court that a party has failed to
comply with an applicable discovery rule or with an order issued
pursuant to an applicable discovery rule the court may:
1. order such party to comply with the discovery or
inspection of materials not previously disclosed or
produced
2. grant a continuance
3. grant a mistrial
4. prohibit the party from calling a witness not disclosed or
introducing in evidence the material not disclosed
Sanctions
• 5. enter such order as it deems just under the
circumstances
Child’s Presence
No right to be physically present at a
deposition except on stipulation of the
parties or a court order.
Rule 8.060(d)(6)
MUST be showing of good cause or
parties agree.
Balance test: child’s presence need VS.
intimidating effect of presence plus
any cost or inconvenience.
Courts may consider alternative
electronic or AV means to allow the
child to participate in the deposition
w/o physical presence
Rule 8.060(d)(6)(D)
NO RIGHT TO BE PHYSICALLY
PRESENT AT DEPOSITION
LIMITATIONS ON DISCLOSURE
Upon application, the court may deny or
partially restrict disclosure authorized by this
rule if it finds there is a “substantial risk to any
person of physical harm, intimidation, bribery,
economic reprisals, or unnecessary annoyance
or embarrassment” resulting from such
disclosure, which outweighs any usefulness of
the disclosure to the party requesting it.
NOT SUBJECT TO DISCLOSURE
• Legal research or of records, correspondence,
or memoranda, to the extent that they
contain opinions, theories, or conclusions of
the prosecuting or defense attorney or staff
members
• Confidential informant unless CI will be
produced at or hearing or failure to disclose
the informant’s identity will infringe upon the
constitutional rights of the child
Limitations …..
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Protective orders may be issued
In camera and ex parte proceedings are governed by Rule 8.060(l)
Further limitations may be approved on a showing of good cause.
At any time during the taking of a deposition, a party or deponent
may move to terminate or limit the examination if there is a
showing that the deposition is being “conducted in bad faith or in
such a manner as to unreasonably annoy, embarrass, or oppress
the deponent or party.” Rule 8.060(k)
• The Richardson rule requires an inquiry into alleged discovery
violations is applicable to juveniles. State v. R.R., 502 So.2d
1244(Fla.1987)
ONGOING DUTY TO DISCLOSE
Both parties have an ongoing duty to share
newly discovered information throughout the
pre-trial process
INVESTIGATIONS ESSENTIALS
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COMPLAINT REPORTS
ARREST WARRANTS
911 TAPES /RADIO COMMUNICATIONS
IN-CAR VIDEO
SURVEILLANCE VIDEO/SECURITY CAMERAS
ARREST PHOTOS
EYEWITNESS IDENTIFICATION REPORTS
…continued
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CONFESSION FORMS
BUY REPORTS
FIREARM/ BALLISTIC REPORTS
EVIDENCE TECHNICIAN REPORTS
PHYSICAL EXAMINATIONS/SEROLOGY
PARAFIN TESTS
EMT LOGS/REPORTS
AUTOPSY REPORTS
ADDITIONAL RECORDS
• Alibi records
– Weather conditions
– News media files/photos
– School records
– Business contacts
– Library records
…continued
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PROPERTY REPORTS
POLICE PHOTOGRAPHS/DIAGRAMS
POLICE SOP’S
POLIC Y STATEMENTS
JUVENILE PROCESSING FORMS
TRANSCRIPTS
SEARCH WARRANTS
PSYCHOLOGICAL EXAMINATIONS
CONSTITUTIONAL SUPPORT FOR
DEFENSE DISCOVERY
Brady v. Maryland, 373 U.S. 83(1963) require the
prosecution to disclose, upon defense request,
evidence in the prosecutor’s possession that is
material and potentially helpful to the defense.
The Court ruled that “suppression by the
prosecution of evidence favorable to an accused
upon request violates due process where the
evidence is material either to guilt or
punishment, irrespective of the good faith or bad
faith of the prosecution.” Id. at 87
SUPPORT FOR DISCOVERY REQUESTS
• Sixth Amendment Right to Counsel
Incorporated into the Fourteenth Amendment by Gideon v. Wainwright,
372 U.S. 335 (1963) assures “ effective aid in the preparation and trial of
the case”. Pretrial gathering of information is a vital part of the effective
assistance of counsel that the Constitution commands.
• Right to confrontation
Although in Pennsylvania v. Ritchie, 480 U.S. 39 (1987) concluded that the
right of confrontation is a trial right, the dissent stated that the
Confrontation Clause does confer upon the defense a constitutional right
to discovery of information that would facilitate effective crossexamination.
…CONTINUED
• Right of Fair Notice
• Due process
right against an unfair balance of advantage
favoring the prosecution
PERPETUATING TESTIMONY
• A motion to depose a witness to perpetuate
his/her testimony may be made by any party at
any time after filing of the delinquency petition.
The motion must be verified or accompanied by
affidavits showing why the deposition is
necessary. Rule 8.060(e)(1) The court may then
issue a commission to take the deposition,
specifying the time and place and any documents
or papers to be produced, which is served on all
parties.
Rule 8.060(e)(2)
NONTESTIMONIAL DISCOVERY
The court may order a child to submit to various
procedures: participation in a line-up,
fingerprints, specimens of blood, hair or other
materials. 8.060(f).