Stephen G. Cobb - Florida Criminal Defense Lawyer

Does A Defendant Have To Plead Either Guilty Or Not Guilty Before Getting Discovery?


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.

Yes, and that is precisely why everyone charged with the criminal offense in the state of Florida or in the United States District Courts should enter a plea of not guilty unless the specific circumstances arise where it would be inadvisable to do so. Now, with federal cases, that is more likely to be the case than in state court. In state court, almost 100% of the time it’s best to plead not guilty and to do so in writing. Florida allows the filing of a written plea of not guilty and if someone is represented by competent legal counsel, their legal counsel can submit what is known as a waiver of arraignment. This means that the defendant does not have to appear in open court in front of 2 or 300 people to hear the judge bellow out their name followed by the prosecution reading out the charge and then someone standing there at the podium having to answer to that.

It’s far better to use a written plea of not guilty and a waiver of arraignment as a written pleading and I always follow this with what’s known as a Notice of Discovery. A notice of discovery puts the state on notice that the defense has elected to participate in the discovery process that is provided for by Florida constitutional law and the Florida rules of criminal procedure. Discovery is absolutely critical and in many cases continuances are necessary because without the motion to continue and in order setting the case off further, we would not be able to get all of the evidence. It is very common for the first round of evidence to come in the form of a discovery exhibit but sometimes officers don’t submit all of the information for the office of the state attorney yet the state attorney’s office is still liable for it and subject to what is known as a Richardson hearing whereby there can be tremendous sanctions imposed on the state’s ability to prosecute a case if its discovery obligations are not met.

How Does Someone Get Access To Discovery In A Criminal Case?

The first thing the defendant should do in order to get access to discovery is not to try and get it themselves and to hire a certified criminal law specialist first. By hiring a criminal law specialist, a client is not going to be liable for mistakes they may innocently make trying to gather evidence that results in something like a bond revocation for contact with the witness that they are prohibited from contacting. The classic example for this is in a domestic violence, whether a felony or a misdemeanor. When the complaining witness wants to recant, they talk to the defendant, the defendant then starts talking with the complaining witness, they go back and forth and before you know it, something happens and the defendant can find themselves arrested, charged with an additional offense and their bond is revoked on the first case. So it’s best to get that information to your attorney.

If you think that there are tax messages that might be helpful, get that information to your lawyer. If you think there might be video available but not in the client’s possession, not in your possession, then go ahead and let the attorney know about it. This is why we use what are called Fact Pattern Reports where we have people spend four days writing down what happened and three of those days are simply where someone is carrying the printout of what they’ve typed up as the fact pattern report so that they can put notes in the margin. On the fourth day, they go back and finish the report. We’ve found that that’s one of the most important ways to discover evidence in criminal cases.

In addition to rule 3.220(b) of the Florida Rules of Criminal Procedure, a lawyer can also use a technique known as a specific notice of discovery. I had one of the first Facebook private message data cases that came through northwest Florida several years ago. We had to jump through quite a number of hoops in order to get the evidence that we sought. However, the way we did it was to drop a specific notice of discovery on the prosecution and after a motion to compel discovery, the state was required to get the login data and other information necessary to produce several hundred pages of private messages by a complaining witness who had falsely accused her boss of a sexual battery.

After denying under oath during the pretrial depositions that she had any interest in obtaining money out of the sexual battery accusation, we found in her Facebook private messages four separate messages to people that she knew where she was bragging about how much money she was going to make, what she was going to buy, and her civil lawyers had assured her that she would make all of this money and never even have to appear in court. Unfortunately for her, I busted her right on the witness stand in open court and my client was acquitted. This was all made possible through what’s called a specific notice of discovery. The key to a specific notice of discovery is contained in the first word of the phrase, “Specific”. When asking for a particular type of evidence, you can’t always do it in blanket form with a notice of discovery and just assume the other side knows what you are looking for.

In the particular case I just mentioned, we knew that we were looking for private messages between parties who had gossiped about the case and we were able to show that something had to be going on behind the scenes by what was publicly posted on the Facebook pages of each of the two individuals. This enabled us to specifically ask for private messages. So when looking for evidence from blood spatter to fingerprints, to expert witnesses, the expert witness reports etc., it’s a good idea for your attorney to give serious thoughts to very, very, very tightly define specific notices of discovery which require the state of Florida to produce evidence that can help your case.

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 Pleading Before Getting Discovery, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (850) 466-1522 today.

Stephen G. Cobb, Esq.

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