I know we lawyers are always saying, "Get It In Writing". Sometimes, this can be a bad thing. Especially in a criminal case, when it comes to scientific evidence, we defense attorneys do not want everything in writing. Why, you ask?
In the State of Florida, someone accused of a crime may elect to "participate in discovery". This is a fancy term meaning that the defense attorney files something with the prosecutor saying "show me everything you got". Once a defense attorney files a demand for discovery, the prosecution turns over everything they've got. Every police report. Every written statement. Every lab report. The names and addresses of every witness. Every picture taken in the case. Every video. Every fingerprint card. Every photo line-up. Everything. But, the problem with electing to participate in discovery is that it's a two way street--now the defense must also turn over every document they have as well.
In my experience, 99% of all Florida criminal defense attorneys "participate in discovery". I know one local guy who never has, and never will. That means, he has never conducted a deposition of a state witness (because doing a deposition counts as "participating in discovery"). The reason he doesn't participate is: (1) he must then turn over everything he has to the state, and (2) he can usually obtain documents regarding the case from a public records request. Remember also, when a defense attorney opts out of discovery, he is not obligated to list the witnesses he will call at trial. So, the state has no idea what witnesses he may have, or what experts he may have because providing witness names is only required as part of discovery participation. Ah yes, the sweet element of surprise.
So, now you know how 1% of the criminal defense attorneys out there do not participate in discovery, let's get back to the 99% who do participate in discovery.
I know we lawyers are always saying, "Get It In Writing". Sometimes, this can be a bad thing. Especially in a criminal case, when it comes to scientific evidence, we defense attorneys do not want everything in writing. Why, you ask?
In the State of Florida, someone accused of a crime may elect to "participate in discovery". This is a fancy term meaning that the defense attorney files something with the prosecutor saying "show me everything you got". Once a defense attorney files a demand for discovery, the prosecution turns over everything they've got. Every police report. Every written statement. Every lab report. The names and addresses of every witness. Every picture taken in the case. Every video. Every fingerprint card. Every photo line-up. Everything. But, the problem with electing to participate in discovery is that it's a two way street--now the defense must also turn over every document they have as well.
In my experience, 99% of all Florida criminal defense attorneys "participate in discovery". I know one local guy who never has, and never will. That means, he has never conducted a deposition of a state witness (because doing a deposition counts as "participating in discovery"). The reason he doesn't participate is: (1) he must then turn over everything he has to the state, and (2) he can usually obtain documents regarding the case from a public records request. Remember also, when a defense attorney opts out of discovery, he is not obligated to list the witnesses he will call at trial. So, the state has no idea what witnesses he may have, or what experts he may have because providing witness names is only required as part of discovery participation. Ah yes, the sweet element of surprise.
So, now you know how 1% of the criminal defense attorneys out there do not participate in discovery, let's get back to the 99% who do participate in discovery.