Deposition reform; is the cure worse than the problem?

AuthorDimmig, Howard
PositionFlorida

The failure of deposition rule Amendments to treat the state and the defense equally, at the very least, will subject the new rule to federal constitutional challenges

On October 1, 1996, the ability of a criminal defendant to engage in pretrial discovery was substantially modified by the Florida Supreme Court.[1] The amendments to Rule 3.220, Florida Rules of Criminal Procedure, adopted by the court may well render Florida's entire pretrial procedure in criminal cases unconstitutional.

Under the first criminal procedure rules in this state, as amended in 1968, defense discovery depositions were authorized only "on showing that the testimony of the witness may be material or relevant on the trial," and "on showing that the witness will not cooperate in giving a voluntary, signed, written statement to the person charged or his attorney."[2] This rule was substantially modified in 1972 to authorize unlimited discovery depositions without leave of court.[3] During this same period of time, a class action suit by criminal defendants against the state attorney for the 11th Judicial Circuit of Florida, was working its way through the federal court system.

Defendant Pugh was arrested in Dade County in March 1971 and charged by information with several felony offenses. The Rules of Criminal Procedure as amended in 1968 were in effect in his case. The constitutionality of Florida's pretrial procedures under these rules was challenged. The U.S. District Court found these rules to be constitutionally infirm and ordered that a plan be submitted which would provide preliminary hearings in all cases charged by information.[4] As the case progressed through the federal appellate courts, the 1972 amendments to the rules of procedure were adopted.

The U.S. Supreme Court reviewed the 1972 rules and held in Gerstein v. Pugh 420 U.S. 103 (1974), a judicial hearing is not a prerequisite to prosecution by information, the Fourth Amendment requires a judicial determination of probable cause as

prerequisite to extended restraint of liberty following arrest. The Court made clear that the constitutionality of any particular method of determining probable cause can be properly decide only by evaluating a state's pretrial procedures as a whole, not by isolating particular part of its total system. On of Florida's pretrial procedures at that time was a defendant's right to discovery depositions without prior leave of court. With that unbridled right to depositions in existence, the Court up held the constitutionality of Florida's pretrial procedures.

Despite this clear warning that modification Of any component of Florida's pretrial procedures might result in rendering the procedures unconstitutional in their entirety, assaults on a defendant's right to discovery depositions began in earnest in 1987.

In November of 1987, the Florida Department of Law Enforcement (FDLE) published a report entitled, "Discovering the Injustice: Criminal Depositions in Florida." This FDLE report, without making any reference to Gerstein, noted that depositions are not specifically required by the federal Constitution. The report further contended that depositions lead to abuse of witnesses and that the cost of depositions, both in terms of dollars and manpower hours, outweighed their usefulness. FDLE recommended the complete abolition of discovery depositions in criminal cases.

In response to FDLE's report, the Florida Legislature addressed the deposition question during the 1988 session. Ultimately, the legislature recommended that the Supreme Court appoint a commission to "consider various issues related to the use of discovery depositions in criminal proceedings," specifically:

(1) Protection for victims and other witnesses.

(2) Limiting depositions to only essential witnesses.

(3) Prohibiting the defendant from attending depositions unless good cause is shown.

(4) Use of technological advances to reduce costs and scheduling problems.

(5) Potential savings of public funds and the time of law enforcement, witnesses, prosecutors, defense counsel, and court personnel that may be derived by employing alternative discovery techniques.

(6) Any other appropriate issues.[5]

Pursuant to the legislature's request, the Supreme Court appointed a blue-ribbon commission comprised of 14...

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