At What Point In My Case Does My Attorney Have Access To The Evidence?

Disclaimer: This article is in response to questions frequently asked of Mr. Cobb and is an unedited dictation transcript. Just like talk to text on your smartphone, there may be misspelled words or sentence fragments.

Whether someone is located in the first judicial circuit, which is the Escambia, Santa Rosa, Okaloosa and Walton County, the 14th judicial circuit such as Bay County, Jefferson or Jackson or anywhere else in the state, Miami Dade, Madison, Orange County, it doesn’t really matter because the rules of discovery under rule 3.220(b) indicate how you ask for discoverable information and that’s not the total rule of discovery as I’ll go into later on. But basically the first set of evidence we have access to is when someone is released from jail assuming they make bond and they are given a copy of a citation or a probable cause statement. It’s important to remember that a citation for a DUI, for example, or anything else is not all of the evidence available.

Additionally, I talk to people frequently who have an arrest report with the probable cause statement and they think that constitutes all of the evidence. This is not true. There are all types of evidence that may be available. The first thing we look for is what’s called the Discovery Exhibit. We file a rule 3.220(b) Notice of Recovery in state court and in federal court, the rules of discovery are vastly different beyond the scope of today’s interview. But either way, what happens is once that notice of discovery is filed, the prosecutor has 21 days to get that information in the form of a discovery exhibit to the defense. Now, when I say 21 days, of course someone is going to look at the rules of criminal procedure and go, “Hey, it actually says that you have 15 days as a prosecutor to get that material to the defense”. This is true but you have to factor in weekends as well.

In an abundance of caution, I tell people it’s going to be approximately three weeks before discovery information will be provided. Now, another form of evidence is testimony and Florida has the rule of criminal procedure which allows pre-trial definitions in virtually all felony cases and if the defense files a motion asking the court to order depositions, then you can get depositions for misdemeanor cases as well. However, in the case of misdemeanor cases, the depositions are not by right whereas in a felony case, you have a right to a deposition. It’s important to understand that just because you can depose a witness, which is a fancy way of saying pop somebody with a subpoena and make them appear at a certain place at a certain time in order to take their testimony under oath, that doesn’t mean you should depose a particular witness. For example, if you think a complaining witness might be having second thoughts, sometimes an off-the-record conversation will be more valuable than questioning under oath. At the same time, there are situations where you definitely want that briefly and witness who is having second thoughts to be under oath. So it’s a judgment call that should be made by the legal defense team with the final responsibility resting with lead counsel.

Other types of evidence have come into vogue in the last few years and exist in the form of digital evidence and especially video evidence. When I say “Digital evidence”, I mean things such as Facebook posts, private messages, emails, text messages, and when I say “Video evidence”, it can be a video that’s taken by someone’s cell phone who just happens to witness something, or it can be a dash-cam in a law enforcement’s motor vehicle or it can be a bodycam that’s been worn by the officer. You have a right to review the evidence before trial in state court and you have a right to confront and cross-examine evidence at trial in federal court. The distinction between the two is very, very stark. In federal court, it’s much more difficult to get discovery than it is in state court.

More than one defense lawyer can tell you a story of how they were at a trial, a jury had been picked, the judge asked the United States attorney if they were ready for trial and the US attorney said, “Just a moment, your Honor”, and then proceeded to drop essentially a truckload of evidence on the defense, then the judge, after the prosecutor, would say, “Yes, I’m ready now”, the defense would say, “Judge, I just got a truckload of evidence, I’d like some time to review it”, to which the judge might require, “You get 20 minutes, we’ll take a recess”. So when you go into federal court, you have a much less level playing field than you do in state court but with criminal cases, it’s really important to understand from the defense perspective that it’s really not a level playing field in either court because legislature on the state, local and federal level have done everything possible to give the prosecution the advantage when it comes to a criminal jury trial.

Disclaimer: This article is in response to questions frequently asked of Mr. Cobb and is an unedited dictation transcript. Just like talk to text on your smartphone, there may be misspelled words or sentence fragments.

For more information on Having Access To Evidence In a Case, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (850) 669-5882 today.

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