2 DISCOVERY CASE PLANNING THEORY OF THE CASE INVESTIGATION GOAL: to seek as much information as possible
3 DISCOVERY DEPENDENCY DELIQUENCY Fla.R.Juv.P Largely Civil in natureFla.R.Juv.P 8.060
4 1 st PRIORITY CLIENT’S STORY PROSECUTION’S THEORY Speed is essential Meet early and oftenSubpoena documents at initial hearing
5 DAY OF INITIAL HEARINGSUBPEONA DOCUMENTS- always get school records and police reportsDIRECT INVESTIGATION- start tracking down and interviewing prosecution and defense witnessesRETAIN EXPERTSSET UP MEETING W/PROSECUTOR
7 THEORY OF CASEDrives all aspects of case preparation interview priority tasks in investigation identification of witnesses what questions to ask use of experts motions to file
8 CASE PLANNING PRIORITIZE ACTIONS PETITION CLIENT’S STORY PROSECUTION’S VERSIONExamine for deficienciesJurisdictional defectsDouble jeopardyNumber of incidentsNumber of participantsTangible evidenceStatementsIdentification testimony
9 Informal measuresFiling motions-requires prosecutor to respond with pleading that will reveal aspects of their caseConducting hearings such as probable cause and suppressionConversations with prosecutor
10 Pretrial INFORMAL FORMAL CONFERENCE DISCOVERY LETTER MOTIONS Bill of Particulars, List of Prosecution Witnesses
11 PRE-TRIAL MOTIONS MOTION TO DISMISS MOTION TO SEVER COUNTS MOTION FOR SEVERANCE
12 Why interview prosecution witnesses? Learn facts about the theory of caseFind unnamed witnessesPinpoint weaknessesDevelop rebuttalElicit statements before coachingTangible evidenceTimelines
13 DISCOVERYAt 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)
14 DUTY OF STATEWithin 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.
15 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 separatelyInvestigating officersKnown by the state to have material evidence that would negate the guilt of the childChild hearsay witnessesExpert 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.
16 CATEGORY Bwitnesses who are not listed in Category A or C
17 CATEGORY Cwitnesses 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.Rule 8.060(a)(2)(A)
18 RECIPROCAL DISCOVERYThis filing triggers reciprocal discovery provisions:Written list of all persons whom the child expects to call as witnesses at the hearingWritten 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:Further, if the child knowingly or purposely shares in discovery obtained by a codefendant or takes the deposition of any person, the child will be deemed to have elected to participate in discovery Rule 8.060(a)(1)
19 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 childReports or statements of experts made with the particular case, including results of physical or mental examinations and of scientific tests, experiments, or comparisonsAny tangible papers or objects which the child intends to use in the hearingThe filing of a motion for protective order by the petitioner will automatically stay the time provided for in this subdivision. If a protective order is granted, the child may, within 2 days thereafter, or at any time before the petitioner furnishes the information or material which is subject of the motion for protective order, withdraw the demand and not be required to furnish reciprocal discovery
20 NOTICE OF DEFENSE OF ALIBI UPON DEMAND OF STATE ATTORNEYChild 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 offenseThe names and addresses of such witnesses as may appear to testifyNot less than 10 days before the trial date
21 Rebuttal Witness ListThe 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
22 Use of DepositionMay 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)
23 DEPOSITIONSRULE 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.
24 Fla.R.Juv.P. 8.060(d) DEPOSITIONS Category A: may be deposed without leave of courtCategory B: only on a finding of good cause by the courtCategory C: cannot unless the court redesignates the witness as Cat. A or B Rule 8.060(d)(2)(F)-(d)(2)(H).
25 NO DEPOSITIONif petition alleges only a misdemeanor or a traffic offense, no depositions may be taken without leave of court for good cause shownRule 8.060(d)(2)(I)
26 LogisticsWritten notice of the intent to take discovery deposition must be given to each party: must includeTime & placeName of person to be examinedStatement 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 courtOutside 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.
27 PROCEDURESubpoenas 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).
28 LAW ENFORCEMENTNo 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)Deposition of a law enforcement officer may also be taken by telephone on stipulation of the parties and consent of the witness. Rule 8.060(d)(7)
29 WITNESS UNDER 16 YEARSMust 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)
30 SANCTIONSWillful 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.
31 SANCTIONS DEFENSE PROSECUTION 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)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)
32 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
33 Sanctions5. enter such order as it deems just under the circumstances
34 NO RIGHT TO BE PHYSICALLY PRESENT AT DEPOSITION Child’s PresenceNO RIGHT TO BE PHYSICALLY PRESENT AT DEPOSITIONNo 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 presenceRule 8.060(d)(6)(D)
35 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.
36 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 membersConfidential 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 child8.060(c)(2)(A)&(B)
37 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)
38 ONGOING DUTY TO DISCLOSE Both parties have an ongoing duty to share newly discovered information throughout the pre-trial process
43 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
44 SUPPORT FOR DISCOVERY REQUESTS Sixth Amendment Right to CounselIncorporated 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 confrontationAlthough 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.
45 …CONTINUED Right of Fair Notice Due process right against an unfair balance of advantage favoring the prosecution
46 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)A deposition may not be used when the attendance of the witness can be procured Rule 8.060(e)(3)
47 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).