Typically, after the accused has been arrested, bonded out of jail, appeared at the arraignment, and plead “not guilty”[i] to the Information (or charging document), the prosecution moves into the discovery phase. Discovery (sometimes referred to as pre-trial discovery) refers to the formal process of exchanging information between the prosecution and defense concerning the evidence and witnesses the parties intend to present at trial. Discovery enables the parties to know before the trial begins what evidence will be presented.[ii] Newbies to the criminal justice system often have no idea what discovery means to the case. Discovery is also the process where the defense can investigate the prosecutions case through formal methods like depositions and crime scene investigation.[iii]
Florida Rule of Criminal Procedure 3.220 outlines what are the discovery obligations and duties of the various parties in this phase of the case. Since the inception of Fla. R. Crim. P.3.220, the various courts in Florida have wrestled with the inner workings of the rule, but not the concept of discovery. Over the years, the rule has been defined, tweaked, and re-defined as the notions and ideas of what is and is not discovery have evolved.
The rules of criminal discovery are designed in their most basic sense to prevent trial by ambush.[iv] Another purpose for pre-trial discovery is to assure a fair trial to a defendant charged with a crime. Discovery is not employed to require the state attorney to investigate or prepare the defendant’s case, or to disclose to the defendant information or documents which, by the exercise of due diligence, are readily available by subpoena or deposition.[v] The rule is designed to allow the parties to have a good understanding of the prosecution’s case against the defendant.
What if my attorney does not receive all the discovery from the prosecutors? As the case proceeds, the prosecutors have a duty to turn over discovery as it becomes available and continually update all the discovery.
Inevitably, discovery disputes arise in these criminal cases. These types of errors are too numerous to list, but usually take the form of an updated report that is inadvertently not produced to the defense or a new witness is added or substituted into a witness list at the last minute or a witness offers new testimony at trial that was not part of their report or deposition testimony.
When a discovery violation is alleged, it is the duty of the trial court to conduct a hearing to determine “whether the state’s violation was trivial or substantial, and most importantly, what effect, if any did the violation have on the ability of the defendant to prepare properly for trial.”[vi] The violation and hearing on the matter is a referred to as a Richardson hearing.
The rule of thumb (if there is such a thing) is that trial courts faced with objections requesting Richardson hearings should be willing to liberally grant the hearing. Being legally frugal, a quick fifteen-minute hearing early in the trial proceedings may help avoid hours of appellate practice and days of retrial (not to mention the cost to taxpayers).
Normally, when a discovery violation is brought to the attention of the trial court, the court must conduct a hearing as to the circumstances of the violation and its potential prejudice to the defendant. Carter v. State, 665 So.2d 1112 (Fla. 4th DCA 1996). When it has been alleged that the state has committed a discovery violation, the trial court pursuant to Richardson, and its progeny, has a duty to first make an adequate inquiry into all of the surrounding circumstances concerning the violation. Tarrant v. State, 668 So.2d 223 (Fla. 4th DCA 1996). A trial court’s failure to hold an adequate Richardson inquiry may be grounds for a new trial. Carter v. State, 665 So.2d 1112 (Fla. 4th DCA 1996) but is not reversible per se (meaning that error automatically reverses the case for a new trial).[vii]
The requirement to hold a Richardson hearing reinforces the discovery rules and encourages full compliance. It would be counterproductive to disregard the discovery violation. Donahue v. State, 464 So.2d 608 (Fla. 4th DCA 1985). “The purpose of a Richardson inquiry it to ferret out procedural, rather than substantive, prejudice. In deciding whether this type of prejudice exists in a given case, a trial judge must be cognizant of two separate but interrelated aspects. First, the trial judge must decide whether the discovery violation prevented the defendant from properly preparing for trial…. The second aspect of procedural prejudice deals with the proper sanction to invoke for a discovery violation.” [viii]
In determining procedural prejudice, the Florida Supreme Court in State v. Schopp, 653 So.2d 1016 (Fla. 1995), explained:
In determining whether a Richardson violation is harmless, the appellate court must consider whether there is a reasonable possibility that the discovery violation procedurally prejudiced the defense. As used in this context, the defense is procedurally prejudiced if there is a reasonable possibility that the defendant’s trial preparation or strategy would have been materially different had the violation not occurred. Trial preparation or strategy should be considered materially different if it reasonably could have benefitted the defendant. In making this determination every conceivable course of action must be considered. If the reviewing court finds that there is a reasonable possibility that the discovery violation prejudiced the defense or if the record is insufficient to determine that the defense was not materially affected, the error must be considered harmful. In other words, only if the appellate court can say beyond a reasonable doubt that the defense was not procedurally prejudiced by the discovery violation can the error be considered harmless.
Schopp, 653 So.2d at 1020-21 (Emphasis added). In Schopp, the State failed to include an officer on its original witness list. The Supreme Court of Florida held that in this instance based on the facts of this case the State’s failure could not have materially hindered the defense, and therefore the trial court’s failure to conduct a Richardson hearing to determine corrective measures was harmless beyond a reasonable doubt. Id.
At the appellate level, when determining whether a Richardson violation is harmless, the question is whether there is a reasonable possibility that the discovery violation procedurally prejudiced the defense. For the discovery violation to be considered harmless, the appellate courts must find beyond a reasonable doubt that the defense was not prejudiced by the discovery violation.[ix]
In its analysis, the Florida Supreme Court stated:
…we determine that the State committed a discovery violation in this case by withholding from the defense the fact that Green had changed her original police statement to such an extent that she transformed from a witness who “didn’t see anything” into an eyewitness– indeed, apparently the only eyewitness– to the shooting. “Florida’s criminal discovery rules are designed to prevent surprise by either the prosecution or the defense. Their purpose is to facilitate a truthful fact-finding process.” Kilpatrick v. State, 376 So.2d 386, 388 (Fla. 1979). In essence, the State’s nondisclosure of the changes in Green’s testimony from her original police statement was tantamount to failing to name a witness at all. Accord Mobley v. State, 705 So.2d 609, 611 (Fla. 4th DCA 1997) (“The State’s disclosure of an eyewitness on the morning of trial can hardly be considered trivial in light of the significance of eyewitness testimony in a case… where the defendant claims that she acted in self-defense and the case essentially boiled down to conflicting versions of what occurred.”); McArthur v. State, 671 So.2d 867, 870 (Fla. 4th DCA 1996) (“Furnishing misleading or inaccurate discovery is tantamount to providing no discovery at all and may constitute a violation of the discovery rules.”)…
State v. Evans, 770 So.2d 1174, 1182 (Fla. 2000). (Emphasis added) In other words, incomplete, misleading, or inaccurate discovery is a discovery violation and tantamount to providing no discovery at all. Id. It is important to recognize that the State must furnish discovery within sufficient time to allow a defendant to prepare for trial without forfeiting the right to a speedy trial, and if the State fails to do so, the court may charge a continuance against the State, even if it results in dismissal of the charges for speedy trial violation. Pura v. State, 789 So.2d 436 (Fla. 5th DCA 2001).
The prosecutors only must turn over evidence it has either actually or constructively within its own possession or the possession of a government agency. Materno v. State, 766 So.2d 358 (Fla. 3d DCA 2000). None of the Florida rules of criminal procedure relating to discovery require the State to disclose information which is not within the State’s actual or constructive possession.
Discovery issues can make or break a case in terms of knowledge. The more the attorney knows about the case, the more informed decisions he or she can make and provide better advice. There is nothing worse that being at trial and learning something completely unexpected because of a discovery violation.
Anthony Candela is the Trial Dog and a Board-Certified attorney. He opened the Candela Law Firm, P.A. in 2014 and handles criminal trials and appeals (as well as estate planning, wills, and trusts). He received his J.D. from Duquesne University School of Law in 2000 and his B.A. in Political Science from King’s College in 1996. As an expert in criminal law and procedure, he has tried over a hundred cases to verdict. Since 2008, he has been certified and recertified by the Florida Bar in Criminal Trial three times. He has also argued several dozen appeals. In the federal system, he is admitted to the Middle District of Florida and the Eleventh Circuit Court of Appeal. #candelalawfirm #thetrialdog
Criminal discovery issues invariably arise in many criminal prosecutions and only the most skilled and experienced attorneys successfully defuse and properly handle these issues. If you think that you or your loved one’s case might have a discovery issue, please do not hesitate to contact www.candelalawfirm.com or Anthony Candela at (813) 417-3645 to discuss the matter.
The purpose of this blog is purely education/information and should not be viewed as creating any attorney-client privilege between the reader and author.
If you have any questions, comments, or concerns, then please feel free to leave me a comment below and thank you reading this blog article. You can also check out the author at his profile at AVVO.com Anthony Candela
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[i] Contrary to popular reporting in the media, it is not newsworthy or shocking that a defendant has plead “not guilty” at the arraignment. This is how the legal proceeding starts. It would be like saying, “Breaking news! The hockey game started with puck being dropped!” or “The basketball game started with a jump ball!” Or “Batter up!” That is how a hockey or basketball game starts. On the other hand, it would be newsworthy the other way around (if a defendant plead “guilty” at the arraignment and would probably initiate a psychological evaluation of the defendant by the court).
[iii] Fla. R. Crim. P. 3.220; and Fla. R. Juv. P. 8.060.
[iv] Barrett v. State, 649 So.2d 219, 221 (Fla. 1994). (See Cuciak v. State, 410 So.2d 916, 917 (Fla. 1982) (“A basic philosophy underlying discovery is the prevention of surprise and the implementation of an improved fact finding process.”); Kilpatrick v. State, 376 So.2d 386, 388 (Fla. 1979).)
[v] State v. Coney, 272 So.2d 550, 553 (Fla. 1st DCA 1973).
[vi] Richardson v. State, 246 So.2d 771, 775 (1971). The “guts” of a Richardson hearing are as follows: 1) Was there a discovery violation? 2) Was the violation willful or inadvertent? 3) Was the violation trivial or substantial? And 4) What effect did the violation have on the ability of the other side to prepare for trial? Id. The final step is what is the appropriate remedy.
[vii] Had a judge conducted an adequate inquiry, he could have chosen from a “panoply of remedies…including, if the evidence warrants, finding not prejudice or ‘harmless error’ and proceeding with the trial.” Barrett v. State, 649 So.2d 219, 222 (Fla. 1994), citing Smith v. State, 500 So.2d 125, 126 (Fla. 1986), overruled by State v. Schopp, 653 So.2d 1016 (Fla. 1995). These remedies could include, inter alia, any of the following: 1. Grant a continuance; 2. Grant a mistrial; 3. Excluding the witness or evidence; 4. Contempt proceedings; or 5. Costs to opposing counsel, among other things. Remember exclusion of evidence or a witness is the “most Draconian” penalty and other alternatives must be sought first, considered, and deemed insufficient to remedy the situation. Id.
[viii] State v. Schopp, 653 So.2d 1016 (Fla. 1995).
[ix] The Florida Supreme Court recognizes a three-pronged inquiry when Richardson issues are presented on appeal: 1. Did a discovery violation occur? 2. Was a Richardson hearing requested? And 3. Did the trial judge satisfy the dictates of Richardson? Suggs v. State, 644 So.2d 64 (Fla. 1994).