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
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 (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 (a)(2) This exhibit categorizes witnesses. Categories determine whether the witness may be deposed.
CATEGORY A 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 (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 DEPOSITION 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)
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 ….. 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
ADDITIONAL RECORDS Alibi records – Weather conditions – News media files/photos – School records – Business contacts – Library records
…continued 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 cross- examination.
…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 (f).