Prosecution's obligation to turn over discovery to the defense.

[cashmere]

Hi -- IANAL....  I have been under the assumption that the prosecution is required to turn over all discovery to the defense.  However, on a thread at Huffington Post, someone claimed the prosecution does not have to turn over any evidence they have that might benefit the defense.  Can someone clear this up for me?  Thanks.

[MJW]

Hi -- IANAL....  I have been under the assumption that the prosecution is required to turn over all discovery to the defense.  However, on a thread at Huffington Post, someone claimed the prosecution does not have to turn over any evidence they have that might benefit the defense.  Can someone clear this up for me?  Thanks.

That's completely mixed up. The defense in the Zimmerman case has entered into a reciprocal discovery agreement that provides them with access to prosecution evidence they wouldn't otherwise receive; but even if they hadn't agreed to reciprocal discovery, the prosecution would still have to turn over any evidence favorable to the defense under the Supreme Court decision Brady v. Maryland.

[MJW]

For your reading pleasure: Brady v. Maryland, 373 US 83 (1963).

We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.

[cashmere]

Actually, I mistated above... I meant to say that the Huffington Poster claimed the prosecution does not have to disclose discovery to the defense that may imply that the defendant is guilty.  Thanks -- I will read your link, but if anyone can enlighten me on this, much appreciated. 

[MJW]

Actually, I mistated above... I meant to say that the Huffington Poster claimed the prosecution does not have to disclose discovery to the defense that may imply that the defendant is guilty.

That's a more complex question. As I mentioned, the defense entered into a reciprocal discovery agreement under Florida's Rules of Criminal Procedure. The state must provide the defense with:

1. A list of all people who have information about the case.
2. Any written statement by any of the listed witnesses, including police and investigative reports, but not including the notes from which the reports are compiled.
3. Any written or recorded statements by the defendant, and any reports containing the statements, along with a list of witnesses to the statements.
4. Any written or recorded statements and the substance of any oral statements made by any codefendants.
5. Any grand jury testimony by the defendant.
6. Papers or objects obtained from the defendant.
7. Whether any information has been obtained from confidential informants.
8. Whether any information was obtained by electronic surveillance.
9. Whether there has been any search and seizure, and any documents obtained.
10. Reports and statements obtained from experts, including results of scientific tests.
11. Any papers or objects, not obtained from the defendant, that the prosecutor intends to use in a hearing or trial.
12. Any papers, objects, or substances in the possession of law enforcement that could be tested for DNA.

Besides that, most of the important witnesses in item 1 can be deposed by the defense. I don't know what inculpatory evidence the Huffington Poster had in mind, but note that most cell phone evidence is covered by item 10, and experts who did not prepare reports are included in item 1, and can be deposed.

[cashmere]

Thanks SO much for this clarification. 

[TalkLeft]

I didn't read the HuffPo piece, but from Cashmere's description, what it might be saying is that while the State has to turn over evidence (such as witness interviews) that contain exculpatory or impeaching information, it does not have disclose  every interview of its witnesses, such as subsequent interviews  that don't contain exculpatory or impeaching information.

For example, while the state turned over witness 8's first sworn recorded interview with the prosecutor in April, it has not turned over any report of her later interview in August. The state might say it doesn't have to, because she didn't say anything exculpatory at that meeting, they didn't take a written statement from her, or record the interview, and didn't prepare a report of the interview. Prosecutors often meet with witnesses multiple times. Does it have to write a report for each interview or disclose the details of each conversation?

What if the meeting was not for evidence gathering purposes, but to reassure the witness about some concern the witness had about the proceedings in general? Or, what if the witness just affirmed what she said in prior interviews? The state might well claim it doesn't have to write a report or disclose the details to the defense.

Here's the latest version of the rule (Dec. 2012)

 The rule doesn't say every discussion with a witness has to be disclosed. It defines a witness statement for the purpose of disclosure as:

    The term "statement" as used herein includes a written statement made by the person and signed or otherwise adopted or approved by the person and also includes any statement of any kind or manner made by the person and written or recorded or summarized in any writing or recording. The term "statement" is specifically intended to include all police and investigative reports of any kind prepared for or in connection with the case, but shall not include the notes from which those reports are compiled;

I don't practice in Florida, but I assume that means only a witness' written statements have to be disclosed. In the first instance, it's a written statement that the witness has signed or otherwise approved, and in the second, it's any statement by the witness which was written or recorded, or  is summarized in a writing or recording. In other words, an oral statement of a witness that is not reduced to writing,  recorded or summarized in a report or recording, does not fall with the ambit of the rule. Such oral statements would only have to be turned over if they were otherwise discoverable, such as if they contained information that could be interpreted as exculpatory or impeaching.

By contrast, when discussing which statements of a defendant must be disclosed, the rule defines statement as:
 
 

  any written or recorded statements and the substance of any oral statements made by the defendant, including a copy of any statements contained in police reports or report summaries

I think it's a ridiculous rule because it encourages police not to write reports, to avoid disclosure to the defense, but that seems to me what it says. 

[MJW]

Such oral statements would only have to be turned over if they were otherwise discoverable, such as if they contained information that could be interpreted as exculpatory or impeaching.

Under Florida law, there's one more category that must be disclosed, and that's when "the oral statement materially alters a prior written or recorded statement previously provided by the State to the defendant." That's according to State v. Evans, 770 So. 2d 1174 (Fla. 2000). Basically, the defense can't be led by the discovery to believe a witness will testify one way when the prosecution knows the witness will say something quite different.

[MJW]

On the off chance that the comment cashmere refers to is regarding a supposed recording on Martin's phone, and the claim that the defense isn't entitled to it because it's not exculpatory, I'll cite Joubert v. State, 847 So. 2d 1056 (Fla. 3rd DCA 2003), where a conviction was reversed because a video recording used in the trial had not been given to the defense.

[nomatter_nevermind]

My understanding was that, regardless of other discovery rules, the prosecution has to turn over anything they intend to use at trial. Anything not given to the defense before the trial date, the prosecution can't introduce in the trial. Is that wrong?

[RickyJim]

It would help if somebody could contrast, for Florida, the defense's obligations to the prosecution, with respect to discovery, with the prosecution's to the defense.  The cited revision (page 2) just talks about the latter.  It beats me why there shouldn't be symmetry.  Some defendants have deep pockets.

[annoyedbeyond]

It would help if somebody could contrast, for Florida, the defense's obligations to the prosecution, with respect to discovery, with the prosecution's to the defense.  The cited revision (page 2) just talks about the latter.  It beats me why there shouldn't be symmetry.  Some defendants have deep pockets.

Because people are innocent until proven guilty and it's the state's job to so prove.

[RickyJim]

Because people are innocent until proven guilty and it's the state's job to so prove.

I once researched "innocent until proven guilty" and the best I could find out is that it is a substitute catch phrase for the burden of proof in a criminal case.  There is some, but not a huge connection between it and discovery rules in an adversarial legal system where the prosecution and defense have separate files, forcing a trial to be closer to a sporting event than a truth finding mission.  But I think many, if not most states have some sort of rules which obligate both sides to show each other what they plan to introduce at trial, ahead of the event.

[Evil Chinchilla]

Because people are innocent until proven guilty and it's the state's job to so prove.

To paraphrase Morticia Addams, "But try telling that to an angry HuffPo poster."

[MJW]

It would help if somebody could contrast, for Florida, the defense's obligations to the prosecution, with respect to discovery, with the prosecution's to the defense.  The cited revision (page 2) just talks about the latter.

The biggest difference is prosecution has to list everyone it knows of who has information in the case, while the defense only has to list witnesses it intends to call. There are also a number of categories, such as items obtained through search and seizure, that can only apply to the state.