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.
It can disrupt or absolutely destroy the prosecution as a case and I would say that in the cases I handle that easily somewhere between 20 and 40% of them depending upon which county, which law enforcement agencies are involved etc., are going to have some discovery that’s missing. For example, I just had a DUI case the other day that involved an allegation of driving under the influence without a blood alcohol level by breath testing or by blood and an accident. But in this particular case, the traffic crash report was missing. Traffic crash report is absolutely critical to the outcome in this case because I’ve had DUI cases where the traffic crash investigation was conducted, then a separate criminal investigation was conducted because you have to do the traffic crash investigation separately from the criminal investigation when you’re talking about motor vehicle accident cases.
The reason for that is Florida has a law that says you must provide a traffic crash report. However, the traffic crash report is privileged. In-between the conducting of the traffic crash report and, for example, a DUI investigation or a traffic homicide investigation, there has to be what’s called in lay terms a switching of the hat. This switching of the hat is where the officer says something to the effect of “I have now concluded my traffic crash investigation”, and it’s a good idea if they say this traffic crash investigation is privileged although they rarely do. “I am now conducting a criminal investigation”, is what they should say next. Yet in the reports that I get in a number of DUI cases, we will find that these reports are absolutely silent about the switching of the hat between the traffic crash investigation, which is privileged, and a DUI or manslaughter or vehicular homicide investigation of a criminal nature that is not privileged. And in one felony DUI with serious bodily injury case that happened on the Three-mile Bridge with Pensacola and Gulf Breeze, at the center of the bridge is the divided line between Escambia County and Santa Rosa County, the accident occurred on the Santa Rosa side. When the accident happened, the passenger was seriously injured, the driver actually was not at fault in the traffic crash because it was an older vehicle in the process of restoration and a tire rod broke.
When a tire rod breaks on 70s era vehicles, what happens is you can’t steer it. When someone is going 45 miles an hour on the Three-mile Bridge, that usually means they are going to collide with another vehicle or the side of the bridge. In this case, the vehicle collided with the side of the bridge and the passenger was seriously injured. So my client was looking at prison time as the bottom range of what was possible in terms of a plea bargain. So the floor was not probation or a diversion program of some kind; the floor was X number of state prison. When I reviewed the discovery in the case, I noticed the pattern that I have previously described that there was not a proper changing of the hat.
What happened during the litigation process and the negotiation process, which goes hand-in-hand, it’s not one or the other, is that the case went from a felony information of indictment for DUI with serious bodily injury to DUI with personal injury and then finally was substituted all the way down to reckless driving as a final offer before trial and although we had a pretty good legal motion that I thought could completely destroy the prosecution of that particular DUI case, my client decided to take the state’s final offer that was result of our negotiations for a reckless driving charge as a substitution. In my opinion, this was a wise decision because you never want to turn down certain offers in litigation of this nature when the outcome might be several years in prison before you went on appeal.
My client accepted that reckless driving and it was all because we didn’t have something in discovery, it was in that 20 to 30% range of cases where we don’t get all of the discovery. And when we did get what we were looking for, it produced something better than my client was realistically hoping for. That officer did not do the proper changing of the hats between the traffic crash investigation and a criminal investigation. So obtaining all of the discovery is critically important in any criminal case.
How Much Access Does The Defendant Have To The Discovery Evidence?
There are a couple of things that are off-limit and they jump to mind immediately. First, the identity of what’s called a Reliable Confidential Informant. The reason confidential informants are kept anonymous is because if their identity was disclosed, obviously that would place them at risk of great harm and even death. Despite defense lawyers attempting to ascertain the identities of confidential informants, generally, not always, but generally those types of motions to disclose are not granted. So that’s one you normally don’t get the identity of the confidential informants. Another one is what’s known as work product. If an expert witness produces a report or a police officer produces a report, then that’s discoverable. However, personal notes that are considered work product and personal notes of an attorney are considered work product and are not discoverable.
Those are two types of things that you cannot get a hold of. When it comes to evidence, I’ve found over the years that most people laser in on things like video, which is the new rave, they also focus on fingerprints, they focus on photographs, they focus on DNA, eye witnesses, this type of evidence. However, the one type of evidence that I’ve found that most criminal defendants overlook is testimony. The conversation usually goes something like this. A potential client or an actual client will say, “How can I be charged with X because there isn’t any evidence?” My reply is the same as it was when I began 27 years ago. Testimony is evidence.
Many people are shocked to find out that they can be arrested, taken to jail, forced to pay a very high bond if they can afford, and if they do get out, they might be kicked out of their house, they might have to ware an alcohol monitor, they might be subject to drug testing, they might have no contact provisions with certain witnesses or complaining witnesses, and they are absolutely astounded because in their mind, there is no evidence. There may not be physical evidence or photographic evidence or audio recording but there is still that type of evidence that goes right back to the foundation of the law itself in the western world, and that is testimony. So it’s always important to remember when it comes to types of evidence is testimony is 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.
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