Step 4: Review The Discovery Exhibit And Write Out A Second Fact Pattern Report

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.

Whining and complaining are not the same as rolling up your sleeves and getting to work. However, most people derive a much greater level of pleasure from whining and complaining than from engaging in the hard labor required to for a proper defense. If you or someone you love has been arrested, it is critically important that you get to work. You may be thinking, “Why do I need to work? That’s why I hired a criminal defense lawyer, and that’s why I hired this law firm.” This is true. However, that lawyer was not there when the incident happened (or was alleged to have happened). And since they were not there, they have to rely on third-party information.

There is no better source of information than the client. When we file a Notice of Discovery (rule 3.220B) in the state of Florida, we are going to get a discovery exhibit response within 15 days. Now, since there are weekends involved, it may actually take three weeks. In some counties, you will get a very basic, barebones discovery that essentially says, “You can gather actual reports and other evidence by digging a trench with a spoon.” In other counties, they quickly give you copies of reports and video evidence without too much trouble. So, local rules are going to be very important for your attorney to know. However, in my view, it is critical for every criminal defendant to review the discovery exhibit.

What is the discovery exhibit? To begin with, it’s going to have a caption that lists the state name, the defendant’s name and the case number. It’s also going to say “Discovery Exhibit” in the center of the page. What follows from there will be a list of witnesses in one of three categories: A, B or C. After that, there is often a notice of demand for alibi, or alternatively, that may come after what we call the state attorney’s checkoff list. The state attorney’s checkoff list has the types of evidence that they check “yes” or “no” to. Then there will most likely be a probable cause statement, an arrest report and a citation of some kind. If it’s a DUI case, then you’ll have a Florida uniformed DUI packet, an Intoxilyzer print out card and other specific evidence related to DUI. If it’s a sex offense case, you may have reports from experts involving DNA. If it’s a drug offense case, you may have things involving lab tests for the presence or absence of chemical substances.

Whatever is in your particular discovery exhibit, you need to go over it. You need to go over it with a fine-tooth comb and point out any errors that you find. I require every client to review a copy of the discovery exhibit and report back on two things. Number one, I want to know what book and/or audio and/or video they watched that day. This is the first question I ask in writing because coping with stress during criminal prosecution is so important. If you are not reading, listening and watching these materials, then you are off track. Make it your immediate goal to ditch any excuses as to why you are not reading, listening or watching and do it immediately.

The second thing that I will ask in writing is whether or not there was anything in the discovery exhibit that was not accurate, and if so, what it was. The second fact pattern report is not nearly as intense as the initial fact pattern report. The technical name for it is a discovery review report. It’s very similar to a fact pattern report except that it’s not as rigid in terms of the timeframe and completing specific things on specific days. With the discovery review report, you can spend whatever amount of time you need in order to review the reports and let your legal team know what’s accurate and what is not accurate. When it comes to your discovery exhibit, Florida is very unique in that you have access to information that most people do not get until faced with an actual trial.

In federal court, it’s not uncommon for the presiding federal circuit judge or district court judge to ask the United States attorney if they are ready. They will often say, “Just a moment, your Honor,” drop a truckload of information on the defense table, and then say, “Yes, your Honor, we are ready.” The district judge will also ask the defense attorney if they’re ready, and the reply will be, “Well, Judge, I just had an 18-wheeler of information dropped on my desk. I need some time.” Many veteran criminal defense attorneys will tell you that on numerous occasions, they’ve had judges say, “Okay, I’ll give you 20 minutes and we’ll take a recess.” That’s a very un-level and unfair playing field since the defendant has been arrested and prosecuted by the state of Florida as opposed to the US Federal Government or some other state.

Take advantage of Florida’s discovery rules and review the discovery in your case. Let your legal team know about what you find. If you find nothing that stands out, let them know. If you find something- even if you don’t think it’s important- it may be of tremendous legal importance. Make sure that you write it down and get it to your legal team as fast as you possibly can.

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 Second Fact Pattern Report, 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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