(a) Notice of Discovery. After the filing of the
charging document, a defendant may elect to participate
in the discovery process provided by these rules,
including the taking of discovery depositions,
with the court and serving on the prosecuting
attorney a “Notice of Discovery” which shall bind
both the prosecution and defendant to all discovery
procedures contained in these rules. Participation
by a defendant in the discovery process, including
the taking of any deposition by a defendant or the
filing of a public records request under chapter 119,
Florida Statutes, for law enforcement
to the defendant’s pending prosecution, which are
as a result of a codefendant’s participation
in discovery, shall be an election to participate
discovery and triggers a reciprocal discovery obligation
for the defendant. If any defendant knowingly or
purposely shares in discovery obtained by a codefendant,
the defendant shall be deemed to have elected
to participate in discovery.
(b) Prosecutor’s Discovery Obligation.
(1) Within 15 days after service of the Notice of
Discovery, the prosecutor shall serve a written Discovery
Exhibit which shall disclose to the defendant
and permit the defendant to inspect, copy, test, and
photograph the following information
within the state’s possession or control:
(A) a list of the names and addresses of all persons
known to the prosecutor to have information
may be relevant to any offense charged or any defense
thereto, or to any similar fact evidence to be presented
at trial under section 90.404(2), Florida Statutes. The
names and addresses of persons listed shall be clearly
designated in the following categories:
(i) Category A. These witnesses shall include
(1) eye witnesses, (2) alibi witnesses and rebuttal to
alibi witnesses, (3) witnesses who were present when
a recorded or unrecorded statement was taken from
or made by a defendant or codefendant,
be separately identified within this category, (4) investigating
officers, (5) witnesses known by the prosecutor
to have any material information
to negate the guilt of the defendant as to any offense
charged, (6) child hearsay witnesses, and (7) expert
witnesses who have not provided a written report and
a curriculum vitae or who are going to testify.
(ii) Category B. All witnesses not listed in
either Category A or Category C.
(iii) Category C. All witnesses who performed
only ministerial functions or whom the prosecutor does
not intend to call at trial and whose involvement
and knowledge of the case is fully set out in a police
report or other statement furnished to the defense;
(B) the statement of any person whose name is
furnished in compliance with the preceding subdivision.
The term “statement” as used herein includes a
written statement made by the person and signed or
otherwise adopted or approved by the person and also
includes any statement of any kind or manner made by
the person and written or recorded
or summarized in
any writing or recording. The term “statement” is specifically
intended to include all police and investigative
reports of any kind prepared for or in connection with
the case, but shall not include the notes from which
those reports are compiled;
(C) any written or recorded statements and the
substance of any oral statements made by the defendant,
including a copy of any statements contained
police reports or report summaries, together with the
name and address of each witness to the statements;
(D) any written or recorded statements and the
substance of any oral statements made by a codefendant;
(E) those portions of recorded grand jury minutes
that contain testimony of the defendant;
(F) any tangible papers or objects that were
obtained from or belonged to the defendant;
(G) whether the state has any material or
information that has been provided by a confidential
(H) whether there has been any electronic surveillance,
including wiretapping, of the premises of
the defendant or of conversations to which the defendant
was a party and any documents relating thereto;
(I) whether there has been any search or seizure
and any documents relating thereto;
(J) reports or statements of experts made in
connection with the particular case, including results
of physical or mental examinations and of scientific
tests, experiments, or comparisons; and
(K) any tangible papers or objects that the prosecuting
attorney intends to use in the hearing or trial
and that were not obtained from or that did not belong
to the defendant.
(L) any tangible paper, objects or substances in
the possession of law enforcement that could be tested
(2) If the court determines, in camera, that any
police or investigative report contains irrelevant, sensitive
information or information interrelated with other
crimes or criminal activities and the disclosure of the
contents of the police report may seriously impair law
enforcement or jeopardize the investigation
other crimes or activities, the court may prohibit or
partially restrict the disclosure.
(3) The court may prohibit the state from introducing
into evidence any of the foregoing material not
disclosed, so as to secure and maintain fairness in the
just determination of the cause.
(4) As soon as practicable after the filing of the
charging document the prosecutor shall disclose to the
defendant any material information within the state’s
possession or control that tends to negate the guilt of
the defendant as to any offense charged, regardless
of whether the defendant
has incurred reciprocal discovery
(c) Disclosure to Prosecution.
(1) After the filing of the charging document and
subject to constitutional limitations, the court may
require a defendant to:
(A) appear in a lineup;
(B) speak for identification by witnesses to an
(C) be fingerprinted;
(D) pose for photographs not involving reenactment
of a scene;
(E) try on articles of clothing;
(F) permit the taking of specimens of material
under the defendant’s fingernails;
(G) permit the taking of samples of the defendant’s
blood, hair, and other materials of the defendant’s
body that involves no unreasonable intrusion
(H) provide specimens of the defendant’s handwriting;
(I) submit to a reasonable physical or medical
inspection of the defendant’s body.
(2) If the personal appearance of a defendant is
required for the foregoing purposes, reasonable notice
of the time and location of the appearance shall be
given by the prosecuting attorney to the defendant
and his or her counsel. Provisions may be made for
for such purposes in an order admitting a
defendant to bail or providing for pretrial release.
(d) Defendant’s Obligation.
(1) If a defendant elects to participate in discovery,
either through filing the appropriate notice or by
participating in any discovery process, including the
taking of a discovery deposition, the following disclosures
shall be made:
(A) Within 15 days after receipt by the defendant
of the Discovery Exhibit furnished by the prosecutor
pursuant to subdivision (b)(1)(A) of this rule,
the defendant shall furnish to the prosecutor a written
list of the names and addresses of all witnesses whom
the defendant expects to call as witnesses at the trial
or hearing. When the prosecutor
subpoenas a witness
whose name has been furnished by the defendant,
except for trial subpoenas, the rules applicable to the
taking of depositions shall apply.
(B) Within 15 days after receipt of the prosecutor’s
Discovery Exhibit the defendant shall serve a
written Discovery Exhibit which shall disclose to and
permit the prosecutor to inspect, copy, test, and photograph
the following information
and material that is in
the defendant’s possession or control:
(i) the statement of any person listed in
subdivision (d)(1)(A), other than that of the defendant;
(ii) reports or statements of experts made in
connection with the particular case, including results
of physical or mental examinations
and of scientific
tests, experiments, or comparisons; and
(iii) any tangible papers or objects that the
defendant intends to use in the hearing or trial.
(2) The prosecutor and the defendant shall perform
their obligations under this rule in a manner
mutually agreeable or as ordered by the court.
(3) The filing of a motion for protective order by
the prosecutor will automatically stay the times provided
for in this subdivision. If a protective order is
granted, the defendant may, within 2 days thereafter,
or at any time before the prosecutor furnishes the information
or material that is the subject of the motion for
protective order, withdraw the defendant’s notice of
discovery and not be required to furnish reciprocal
(e) Restricting Disclosure. The court on its own
initiative or on motion of counsel shall deny or partially
restrict disclosures authorized by this rule if it
finds there is a substantial risk to any person of physical
harm, intimidation, bribery, economic reprisals,
unnecessary annoyance or embarrassment resulting
from the disclosure, that outweighs any usefulness of
the disclosure to either party.
(f) Additional Discovery. On a showing of materiality,
the court may require such other discovery
parties as justice may require.
(g) Matters Not Subject to Disclosure.
(1) Work Product. Disclosure shall not be
required of legal research or of records, correspondence,
reports, or memoranda to the extent that they
contain the opinions, theories, or conclusions of the
prosecuting or defense attorney or members of their
(2) Informants. Disclosure of a confidential
shall not be required unless the confidential
informant is to be produced at a hearing or trial or a
failure to disclose the informant’s identity will infringe
the constitutional rights of the defendant.
(h) Discovery Depositions.
(1) Generally. At any time after the filing of the
charging document any party may take the deposition
upon oral examination of any person authorized by this
rule. A party taking a deposition shall give reasonable
written notice to each other party and shall make a
good faith effort to coordinate
the date, time, and location
of the deposition to accommodate the schedules
of other parties and the witness to be deposed. The
notice shall state the time and the location where the
deposition is to be taken, the name of each person to
be examined, and a certificate of counsel that a good
faith effort was made to coordinate
schedule. After notice to the parties the court may, for
good cause shown, extend or shorten the time and may
change the location of the deposition.
Except as provided
herein, the procedure for taking the deposition,
including the scope of the examination, and the issuance
of a subpoena (except a subpoena duces tecum)
for deposition by an attorney of record in the action,
shall be the same as that provided in the Florida Rules
of Civil Procedure. Any deposition taken pursuant to
this rule may be used by any party for the purpose
of contradicting or impeaching the testimony of the
deponent as a witness. The trial court or the clerk of
the court may, upon application, issue subpoenas for
the persons whose depositions are to be taken. In any
case, including multiple defendants or consolidated
cases, no person shall be deposed more than once
except by consent of the parties or by order of the court
issued on good cause shown. A witness who refuses to
obey a duly served subpoena may be adjudged in contempt
of the court from which the subpoena issued.
(A) The defendant may, without leave of court,
take the deposition of any witness listed by the prosecutor
as a Category A witness or listed by a co-defendant
as a witness to be called at a joint trial or hearing. After
receipt by the defendant of the Discovery
defendant may, without leave of court, take the deposition
of any unlisted witness who may have information
relevant to the offense charged. The prosecutor may,
without leave of court, take the deposition of any witness
listed by the defendant to be called at a trial or hearing.
(B) No party may take the deposition of a witness
listed by the prosecutor as a Category B witness
except upon leave of court with good cause shown. In
determining whether to allow a deposition,
should consider the consequences to the defendant,
the complexities of the issues involved, the complexity
of the testimony of the witness (e.g., experts), and
the other opportunities available to the defendant to
discover the information
sought by deposition.
(C) A witness listed by the prosecutor as a
Category C witness shall not be subject to deposition
unless the court determines that the witness should be
listed in another category.
(D) No deposition shall be taken in a case in
which the defendant is charged only with a misdemeanor
or a criminal traffic offense when all other discovery
provided by this rule has been complied with
unless good cause can be shown to the trial court. In
determining whether to allow a deposition, the court
should consider the consequences
to the defendant,
the complexity of the issues involved, the complexity
of the witness’ testimony (e.g., experts), and the other
opportunities available to the defendant to discover
sought by deposition. However, this
against the taking of depositions shall not
be applicable if following the furnishing of discovery
by the defendant the state then takes the statement
of a listed defense witness pursuant to section 27.04,
(2) Transcripts. No transcript of a deposition for
which the state may be obligated to expend funds shall
be ordered by a party unless it is in compliance with
(3) Location of Deposition. Depositions of witnesses
residing in the county in which the trial is to
take place shall be taken in the building in which the
trial shall be held, such other location as is agreed on
by the parties, or a location designated by the court.
Depositions of witnesses residing outside
in which the trial is to take place shall be taken in a
court reporter’s office in the county or state in which
the witness resides, such other location as is agreed on
by the parties, or a location designated by the court.
(4) Depositions of Sensitive Witnesses. Depositions
of children under the age of 16 shall be videotaped
unless otherwise ordered by the court. The court
may order the videotaping of a deposition or the taking
of a deposition of a witness with fragile emotional
strength to be in the presence of the trial judge or a
(5) Depositions of Law Enforcement Officers.
Subject to the general provisions of subdivision (h)
(1), law enforcement officers shall appear for deposition,
without subpoena, upon written notice of taking
delivered at the address of the law enforcement
agency or department,
or an address designated
by the law enforcement
agency or department,
prior to the date of the deposition.
officers who fail to appear for deposition after being
served notice as required by the rule may be adjudged
in contempt of court.
(6) Witness Coordinating Office/Notice of
Taking Deposition. If a witness coordinating office
has been established in the jurisdiction pursuant to
applicable Florida Statutes, the deposition of any witness
should be coordinated through that office. The
witness coordinating office should attempt to schedule
the depositions of a witness at a time and location convenient
for the witness and acceptable to the parties.
(7) Defendant’s Physical Presence. A defendant
shall not be physically present at a deposition
on stipulation of the parties or as provided by this
rule. The court may order the physical presence of
the defendant on a showing of good cause. The court
may consider (A) the need for the physical presence
of the defendant to obtain effective
discovery, (B) the
intimidating effect of the defendant’s presence on the
witness, if any, (C) any cost or inconvenience which
may result, and (D) any alternative electronic or audio/
visual means available.
(8) Telephonic Statements. On stipulation of the
parties and the consent of the witness, the statement
of any witness may be taken by telephone in lieu of
the deposition of the witness. In such case, the witness
need not be under oath. The statement, however,
shall be recorded and may be used for impeachment
trial as a prior inconsistent statement pursuant to the
Florida Evidence Code.
(i) Investigations Not to Be Impeded. Except as
is otherwise provided as to matters not subject to disclosure
or restricted by protective orders, neither the
counsel for the parties nor other prosecution or defense
personnel shall advise persons having relevant
or information (except the defendant) to refrain
from discussing the case with opposing counsel or
showing opposing counsel any relevant material, nor
shall they otherwise impede opposing counsel’s investigation
of the case.
(j) Continuing Duty to Disclose. If, subsequent to
compliance with the rules, a party discovers additional
witnesses or material that the party would have been
under a duty to disclose or produce at the time of the
previous compliance, the party shall promptly disclose
or produce the witnesses or material in the same manner
as required under these rules for initial discovery.
(k) Court May Alter Times. The court may alter
the times for compliance with any discovery under
these rules on good cause shown.
(l) Protective Orders.
(1) Motion to Restrict Disclosure of Matters.
On a showing of good cause, the court shall at any time
order that specified disclosures be restricted, deferred,
or exempted from discovery, that certain matters not
be inquired into, that the scope of the deposition be
limited to certain matters, that a deposition be sealed
and after being sealed be opened only by order of
the court, or make such other order as is appropriate
to protect a witness from harassment,
or invasion of privacy, including prohibiting
the taking of a deposition. All material and
information to which a party is entitled, however, must
be disclosed in time to permit the party to make beneficial
use of it.
(2) Motion to Terminate or Limit Examination.
At any time during the taking of a deposition, on
motion of a party or of the deponent, and upon a showing
that the examination is being conducted in bad faith
or in such manner as to unreasonably annoy, embarrass,
or oppress the deponent or party, the court in which the
action is pending or the circuit court where the deposition
is being taken may (1) terminate the deposition, (2)
limit the scope and manner of the taking of the deposition,
(3) limit the time of the deposition, (4) continue
the deposition to a later time, (5) order the deposition to
be taken in open court, and, in addition,
may (6) impose
any sanction authorized by this rule. If the order terminates
the deposition, it shall be resumed thereafter
only upon the order of the court in which the action is
pending. Upon demand of any party or deponent, the
taking of the deposition shall be suspended for the time
necessary to make a motion for an order.
(m) In Camera and Ex Parte Proceedings.
(1) Any person may move for an order denying or
regulating disclosure of sensitive matters. The court may
consider the matters contained in the motion in camera.
(2) Upon request, the court shall allow the defendant
to make an ex parte showing of good cause for
taking the deposition of a Category B witness.
(3) A record shall be made of proceedings authorized
under this subdivision. If the court enters an
order granting relief after an in camera inspection
ex parte showing, the entire record of the proceeding
shall be sealed and preserved and be made available to
the appellate court in the event of an appeal.
(1) If, at any time during the course of the proceedings,
it is brought to the attention of the court that
a party has failed to comply with an applicable discovery
rule or with an order issued pursuant to an applicable
discovery rule, the court may order the party to
comply with the discovery or inspection of materials
not previously disclosed or produced, grant a continuance,
grant a mistrial, prohibit the party from calling
a witness not disclosed
or introducing in evidence
material not disclosed, or enter such other order as it
deems just under the circumstances.
(2) Willful violation by counsel or a party not represented
by counsel of an applicable discovery
an order issued pursuant thereto, shall subject counsel
or the unrepresented party to appropriate sanctions
the court. The sanctions may include, but are not limited
to, contempt proceedings
against the attorney or
unrepresented party, as well as the assessment of costs
incurred by the opposing party, when appropriate.
(3) Every request for discovery or response or objection,
including a notice of deposition made by a party
represented by an attorney, shall be signed by at least
1 attorney of record in the attorney’s individual name,
whose address shall be stated. A party who is not represented
by an attorney shall sign the request, response,
or objection and list his or her address. The signature of
the attorney or party constitutes a certification
signer has read the request, response, or objection and
that to the best of the signer’s knowledge,
or belief formed after a reasonable inquiry it is:
(A) consistent with these rules and warranted
by existing law or a good faith argument for the extension,
modification, or reversal of existing law;
(B) not interposed for any improper purpose,
such as to harass or to cause unnecessary delay or
needless increase in the cost of litigation; and
(C) not unreasonable or unduly burdensome or
expensive, given the needs of the case and the importance
of the issues at stake in the litigation.
If a request, response, or objection is not signed, it
shall be stricken unless it is signed promptly after the
omission is called to the attention of the party making
the request, response, or objection, and a party shall
not be obligated to take any action with respect to it
until it is signed.
If a certification is made in violation of this rule, the
court, on motion or on its own initiative, shall impose
on the person who made the certification, the firm or
agency with which the person is affiliated,
on whose behalf the request, response, or objection is
made, or any or all of the above an appropriate sanction,
which may include an order to pay the amount of
the reasonable expenses incurred because of the violation,
including a reasonable attorney’s fee.
(o) Pretrial Conference.
(1) The trial court may hold 1 or more pretrial
conferences, with trial counsel present, to consider
such matters as will promote a fair and expeditious
trial. The defendant shall be present unless the defendant
waives this in writing.
(2) The court may set, and upon the request of
any party shall set, a discovery schedule, including
discovery cut-off date, at the pretrial conference.
(a)(1) This is substantially the same as section 925.05, Florida
(a)(2) This is new and allows a defendant rights which he did
not have, but must be considered in light of subdivision (c).
(a)(3) This is a slight enlargement upon the present practice;
however, from a practical standpoint, it is not an enlargement,
but merely a codification of section 925.05, Florida Statutes, with
respect to the defendant’s testimony before a grand jury.
(b) This is a restatement of section 925.04, Florida Statutes,
except for the change of the word “may” to “shall.”
(c) This is new and affords discovery to the state within the
trial judge’s discretion by allowing the trial judge to make discovery
under (a)(2) and (b) conditioned upon the defendant giving
the state some information if the defendant has it. This affords
the state some area of discovery which it did not previously have
with respect to (b). A question was raised concerning the effect
of (a)(2) on FBI reports and other reports which are submitted to
a prosecutor as “confidential” but it was agreed that the interests
of justice would be better served by allowing this rule and that,
after the appropriate governmental authorities are made aware of
the fact that their reports may be subject to compulsory disclosure,
no harm to the state will be done.
(d) and (e) This gives the defendant optional procedures. (d) is
simply a codification of section 906.29, Florida Statutes, except
for the addition of “addresses.” The defendant is allowed this procedure
in any event. (e) affords the defendant the additional practice
of obtaining all of the state’s witnesses, as distinguished from
merely those on whose evidence the information,
is based, but only if the defendant is willing to give the state a list
of all defense witnesses, which must be done to take advantage
of this rule. The confidential informant who is to be used as a
witness must be disclosed; but it was expressly viewed that this
should not otherwise overrule present case law on the subject of
disclosure of confidential informants, either where disclosure is
required or not required.
(f) This is new and is a compromise between the philosophy
that the defendant should be allowed unlimited discovery depositions
and the philosophy that the defendant should not be allowed
any discovery depositions at all. The purpose of the rule is to
afford the defendant relief from situations when witnesses refuse
to “cooperate” by making pretrial disclosures to the defense. It was
determined to be necessary that the written signed statement be a
criterion because this is the only way witnesses can be impeached
by prior contradictory statements. The word “cooperate” was intentionally
left in the rule, although the word is a loose one, so that it
can be given a liberal interpretation, i.e., a witness may claim to
be available and yet never actually submit to an interview. Some
express the view that the defendant is not being afforded adequate
protection because the cooperating witness will not have been under
oath, but the subcommittee felt that the only alternative would be
to make unlimited discovery depositions available to the defendant
which was a view not approved by a majority of the subcommittee.
Each minority is expressed by the following alternative proposals:
Alternative Proposal (1): When a person is charged with an
offense, at any time after the filing of the indictment, information,
or affidavit upon which the defendant is to be tried, such person
may take the deposition of any person by deposition upon oral
examination for the purpose of discovery. The attendance of witnesses
may be compelled by the use of subpoenas as provided by
law. The deposition of a person confined in prison may be taken
only by leave of court on such terms as the court prescribes. The
scope of examination and the manner and method of taking such
deposition shall be as provided in the Florida Rules of Civil Procedure
and the deposition may be used for the purpose of contradicting
or impeaching the testimony of a deponent as a witness.
Alternative Proposal (2): If a defendant signs and files a written
waiver of his or her privilege against self-incrimination and submits
to interrogation under oath by the prosecuting attorney, then
the defendant shall be entitled to compulsory process for any or all
witnesses to enable the defendant to interrogate them under oath,
before trial, for discovery purposes.
A view was expressed that some limitation should be placed on
the state’s rights under sections 27.04 and 32.20, Florida Statutes,
which allow the prosecutor to take all depositions unilaterally at
any time. It was agreed by all members of the subcommittee
this right should not be curtailed until some specific time after the
filing of an indictment, information, or affidavit, because circumstances
require the filing of the charge and a studied
marshalling of evidence thereafter. Criticism of the present practice
lies in the fact that any time up to and during the course of
the trial the prosecutor can subpoena any person to the privacy
of the prosecutor’s
office without notice to the defense and there
take a statement of such person under oath. The subcommittee was
divided, however, on the method of altering this situation and the
end result was that this subcommittee itself should not undertake
to change the existing practice, but should make the Supreme Court
aware of this apparent imbalance.
(g) This is new and is required in order to make effective the
(h) This is new and, although it encompasses relief for both
the state and the defense, its primary purpose is to afford relief in
situations when witnesses may be intimidated and a prosecuting
attorney’s heavy docket might not allow compliance with discovery
within the time limitations set forth in the rules. The words,
“sufficient showing” were intentionally included in order to permit
the trial judge to have discretion in granting the protective relief. It
would be impossible to specify all possible grounds which can be
the basis of a protective order. This verbiage also permits a possible
abuse by a prosecution-minded trial judge, but the subcommittee
felt that the appellate court would remedy any such abuse in the
course of making appellate decisions.
(i) This is new and, although it will entail additional expense
to counties, it was determined that it was necessary in order to comply
with the recent trend of federal decisions which hold that due
process is violated when a person who has the money with which to
resist criminal prosecution gains an advantage
over the person who
is not so endowed. Actually, there is serious doubt that the intent of
this subdivision can be accomplished by a rule of procedure;
is needed. It is recognized that such a statute may be unpopular
with the legislature
and not enacted. But, if this subdivision has
not given effect there is a likelihood that a constitutional
(equal protection of the law) will be found and either the entire rule
with all subdivisions will be held void or confusion in application
(j) This provision is necessary since the prosecutor is required
to assume many responsibilities under the various subdivisions
under the rule. There are no prosecuting attorneys, either elected
or regularly assigned, in justice of the peace courts. County judge’s
courts, as distinguished from county courts, do not have elected
prosecutors. Prosecuting attorneys in such courts are employed
by county commissions and may be handicapped
in meeting the
of the rule due to the irregularity and uncertainty
of such employment. This subdivision
is inserted as a method of
achieving as much uniformity as possible in all of the courts of
Florida having jurisdictions to try criminal cases.
1972 Amendment. The committee studied the ABA Standards
for Criminal Justice relating to discovery and procedure before
trial. Some of the standards are incorporated in the committee’s
proposal, others are not. Generally, the standards are divided into
Part I deals with policy and philosophy and, while the committee
approves the substance of Part I, it was determined that
specific rules setting out this policy and philosophy should not be
Part II provides for automatic disclosures (avoiding judicial
labor) by the prosecutor to the defense of almost everything within
the prosecutor’s knowledge, except for work product and the identity
of confidential informants. The committee adopted much of
Part II, but felt that the disclosure should not be automatic in every
case; the disclosure should be made only after request or demand
and within certain time limitations. The ABA Standards do not
of discovery, but the committee deemed
that a large degree of reciprocity is in order and made appropriate
Part III of the ABA Standards recommends some disclosure by
the defense (not reciprocal) to which the state was not previously
entitled. The committee adopted Part III and enlarged upon it.
Part IV of the Standards sets forth methods of regulation of
discovery by the court. Under the Standards the discovery mentioned
in Parts II and III would have been automatic and without
the necessity of court orders or court intervention. Part III provides
for procedures of protection of the parties and was generally incorporated
in the recommendations of the committee.
Part V of the ABA Standards deals with omnibus hearings and
pretrial conferences. The committee rejected part of the Standards
dealing with omnibus hearings because it felt that it was superfluous
under Florida procedure. The Florida committee determined
that a trial court may, at its discretion, schedule a hearing for the
purposes enumerated in the ABA Omnibus Hearing and that a
it is not necessary. Some of the provisions of the
ABA Omnibus Hearing were rejected by the Florida committee,
i.e., stipulations as to issues, waivers by defendant, etc. A modified
form of pretrial conference was provided in the proposals by the
(a)(1)(i) Same as ABA Standard 2.1(a)(i) and substance of
Standard 2.1(e). Formerly Florida Rule of Criminal Procedure
3.220(e) authorized exchange of witness lists. When considered
with proposal 3.220(a)(3), it is seen that the proposal represents no
(ii) This rule is a modification of Standard 2.1(a)(ii) and
is new in Florida, although some such statements might have been
discoverable under rule 3.220(f). Definition of “statement” is
derived from 18 U.S.C. § 3500.
Requiring law enforcement officers to include irrelevant or sensitive
material in their disclosures to the defense would not serve
justice. Many investigations overlap and information developed as
a byproduct of one investigation may form the basis and starting
point for a new and entirely separate one. Also, the disclosure of
any information obtained from computerized
records of the Florida
Crime Information Center and the National Crime Information
Center should be subject to the regulations prescribing the confidentiality
of such information so as to safeguard the right of the
innocent to privacy.
(iii) Same as Standard 2.1(a)(ii) relating to statements of
accused; words “known to the prosecutor, together with the name
and address of each witness to the statement” added and is new in
(iv) From Standard 2.1(a)(ii). New in Florida.
(v) From Standard 2.1(a)(iii) except for addition of words,
“that have been recorded” which were inserted to avoid any inference
that the proposed rule makes recording of grand jury testimony
mandatory. This discovery was formerly available under rule
(vi) From Standard 2.1(a)(v). Words, “books, papers,
documents, photographs” were condensed to “papers or objects”
without intending to change their meaning. This was previously
available under rule 3.220(b).
(vii) From Standard 2.1(b)(i) except word “confidential”
was added to clarify meaning. This is new in this form.
(viii) From Standard 2.1(b)(iii) and is new in Florida in this
form. Previously this was disclosed upon motion and order.
(ix) From Standard 2.3(a), but also requiring production
of “documents relating thereto” such as search warrants and affidavits.
Previously this was disclosed upon motion and order.
(x) From Standard 2.1(a)(iv). Previously available under
rule 3.220(a)(2). Defendant must reciprocate under proposed rule
(xi) Same committee note as (b) under this subdivision.
(2) From Standard 2.1(c) except omission of words “or would
tend to reduce his punishment therefor” which should be included
(3) Based upon Standard 2.2(a) and (b) except Standards
required prosecutor to furnish voluntarily and without demand
while this proposal requires defendant to make demand and permits
prosecutor 15 days in which to respond.
(4) From Standards 2.5(b) and 4.4. Substance of this proposal
previously available under rule 3.220(h).
(5) From Standard 2.5. New in Florida.
(b)(1) From Standard 3.1(a). New in Florida.
(2) From Standard 3.1(b). New in Florida.
(3) Standards did not recommend that defendant furnish
prosecution with reciprocal witness list; however, formerly, rule
3.220(e) did make such provision. The committee recommended
(4) Standards did not recommend reciprocity of discovery.
Previously, Florida rules required some reciprocity. The committee
recommended continuation of former reciprocity and addition of
exchanging witness’ statement other than defendants’.
(c) From Standard 2.6. New in Florida, but generally recognized
(d) Not recommended by Standards. Previously permitted
under rule 3.220(f) except for change limiting the place of taking
the deposition and eliminating requirement that witness refuse to
give voluntary signed statement.
(e) From Standard 4.1. New in Florida.
(f) Same as rule 3.220(g).
(g) From Standard 4.4 and rule 3.220(h).
(h) From Standard 4.4 and rule 3.220(h).
(i) From Standard 4.6. Not previously covered by rule in Florida,
but permitted by decisions.
(j)(1) From Standard 4.7(a). New in Florida except court discretion
permitted by rule 3.220(g).
(2) From Standard 4.7(b). New in Florida.
(k) Same as prior rule.
(l) Modified Standard 5.4. New in Florida.
1977 Amendment. The proposed change only removes the
comma which currently appears after (a)(1).
1980 Amendment. The intent of the rule change is to guarantee
that the accused will receive those portions of police reports
or report summaries which contain any written, recorded, or oral
statements made by the accused.
1986 Amendment. The showing of good cause under (d)(2) of
this rule may be presented ex parte or in camera to the court.
1989 Amendment. 3.220(a). The purpose of this change is to
ensure reciprocity of discovery. Under the previous rule, the defendant
could tailor discovery, demanding only certain items of discovery
with no requirement to reciprocate items other than those
demanded. A defendant could avoid reciprocal discovery by taking
depositions, thereby learning of witnesses through the deposition
process, and then deposing those witnesses without filing a demand
for discovery. With this change, once a defendant opts to use any
discovery device, the defendant is required to produce all items
designated under the discovery rule, whether or not the defendant
has specifically requested production of those items.
Former subdivision (c) is relettered (b). Under (b)(1) the prosecutor’s
obligation to furnish a witness list is conditioned upon the
defendant filing a “Notice of Discovery.”
Former subdivision (a)(1)(i) is renumbered (b)(1)(i) and, as
amended, limits the ability of the defense to take depositions
of those persons designated by the prosecutor as witnesses who
should not be deposed because of their tangential relationship to
the case. This does not preclude the defense attorney or a defense
investigator from interviewing any witness, including a police witness,
about the witness’s knowledge of the case.
This change is intended to meet a primary complaint of law
enforcement agencies that depositions are frequently taken of persons
who have no knowledge of the events leading to the charge,
but whose names are disclosed on the witness list. Examples of
these persons are transport officers, evidence technicians, etc.
In order to permit the defense to evaluate the potential testimony
of those individuals designated by the prosecutor, their testimony
must be fully set forth in some document, generally a police
(a)(1)(ii) is renumbered (b)(1)(ii). This subdivision is amended
to require full production of all police incident and investigative
reports, of any kind, that are discoverable, provided there is no
independent reason for restricting their disclosure. The term “statement”
is intended to include summaries of statements
made by investigating officers as well as statements adopted by the
The protection against disclosure of sensitive information, or
information that otherwise should not be disclosed, formerly set forth
in (a)(1)(i), is retained, but transferred to subdivision (b)(1)(xii).
The prohibition sanction is not eliminated, but is transferred
to subdivision (b)(1)(xiii). “Shall” has been changed to “may” in
order to reflect the procedure for imposition of sanctions specified
in Richardson v. State, 246 So.2d 771 (Fla. 1971).
The last phrase of renumbered subdivision (b)(2) is added to
emphasize that constitutionally required Brady material must be
produced regardless of the defendant’s election to participate in the
Former subdivision (b) is relettered (c).
Former subdivisions (b)(3) and (4) are now included in new subdivision
(d). An introductory phrase has been added to subdivision
(d). Subdivision (d) reflects the change in nomenclature from a
“Demand for Discovery” to the filing of a “Notice of Discovery.”
As used in subdivision (d), the word “defendant” is intended to
refer to the party rather than to the person. Any obligations incurred
by the “defendant” are incurred by the defendant’s attorney if the
defendant is represented by counsel and by the defendant personally
if the defendant is not represented.
The right of the defendant to be present and to examine witnesses,
set forth in renumbered subdivision (d)(1), refers to the right
of the defense, as party to the action. The term refers to the attorney
for the defendant if the defendant is represented by counsel. The
right of the defendant to be physically present at the deposition is
controlled by new subdivision (h)(6).
Renumbered subdivision (d)(2), as amended, reflects the new
notice of discovery procedure. If the defendant elects to participate
in discovery, the defendant is obligated to furnish full reciprocal
Subdivision (e) was previously numbered (a)(4). This subdivision
has been modified to permit the remedy to be sought by either prosecution
Subdivision (f) was previously numbered (a)(5) and has been
modified to permit the prosecutor, as well as the defense attorney,
to seek additional discovery.
Former subdivision (c) is relettered (g).
Former subdivision (d) is relettered (h). Renumbered subdivision
(h)(1) has been amended to reflect the restrictions on deposing a
witness designated by the prosecution under (b)(1)(i) (designation
of a witness performing ministerial duties only or one who will not
be called at trial).
(h)(1)(i) is added to provide that a deposition of a witness designated
by the prosecutor under (b)(1)(i) may be taken only upon
good cause shown by the defendant to the court.
(h)(1)(ii) is added to provide that abuses by attorneys of the provisions
of (b)(1)(i) are subject to stringent sanctions.
New subdivision (h)(1)(iii) abolishes depositions in misdemeanor
cases except when good cause is shown.
A portion of former subdivision (d)(1) is renumbered (h)(3). This
subdivision now permits the administrative judge or chief judge,
in addition to the trial judge, to designate the place for taking the
New subdivision (h)(4) recognizes that children and some
adults are especially vulnerable to intimidation tactics. Although
it has been shown that such tactics are infrequent, they should
not be tolerated because of the traumatic effect on the witness.
The videotaping of the deposition will enable the trial judge to
control such tactics. Provision is also made to protect witnesses
of fragile emotional strength because of their vulnerability to
New subdivision (h)(5) emphasizes the necessity for the establishment,
in each jurisdiction, of an effective witness coordinating
office. The Florida Legislature has authorized the establishment of
such office through section 43.35, Florida Statutes. This subdivision
is intended to make depositions of witnesses and law enforcement
officers as convenient as possible for the witnesses and with
minimal disruption of law enforcement
officers’ official duties.
New subdivision (h)(6) recognizes that one of the most frequent
complaints from child protection workers and from rape victim
counselors is that the presence of the defendant intimidates
witnesses. The trauma to the victim surpasses the benefit to the
defense of having the defendant present at the deposition. Since
there is no right, other than that given by the rules of procedure,
for a defendant to attend a deposition, the Florida Supreme Court
Commission on Criminal Discovery believes that no such right
should exist in those cases. The “defense,” of course, as a party to
the action, has a right to be present through counsel at the deposition.
In this subdivision, the word “defendant” is meant to refer
to the person of the defendant,
not to the defense as a party. See
comments to rules 3.220(d) and 3.220(d)(1).
Although defendants have no right to be present at depositions
and generally there is no legitimate reason for their presence, their
presence is appropriate in certain cases. An example is a complex
white collar fraud prosecution in which the defendant must explain
the meaning of technical documents or terms. Cases requiring the
defendant’s presence are the exception rather than the rule. Accordingly,
(h)(6)(i)–(ii) preclude the presence of defendants at depositions
unless agreed to by the parties or ordered by the court. These
subdivisions set forth factors that a court should take into account
in considering motions to allow a defendant’s presence.
New subdivision (h)(7) permits the defense to obtain needed
factual information from law enforcement officers by informal
telephone deposition. Recognizing that the formal deposition of a
law enforcement officer is often unnecessary, this procedure will
permit such discovery at a significant reduction of costs.
Former subdivisions (e), (f), and (g) are relettered (i), (j), and
Former subdivision (h) is relettered (l) and is modified to emphasize
the use of protective orders to protect witnesses from harassment
or intimidation and to provide for limiting the scope of the
deposition as to certain matters.
Former subdivision (i) is relettered (m).
Former subdivision (j) is relettered (n).
Renumbered (n)(2) is amended to provide that sanctions are
mandatory if the court finds willful abuse of discovery. Although
the amount of sanction is discretionary, some sanction must be
(n)(3) is new and tracks the certification provisions of federal
procedure. The very fact of signing such a certification will make
counsel cognizant of the effect of that action.
Subdivision (k) is relettered (o).
Subdivision (l) is relettered (p).
1992 Amendment. The proposed amendments change the references
to “indictment or information” in subdivisions (b)(1), (b)(2),
(c)(1), and (h)(1) to “charging document.” This amendment
in conjunction with amendments to rule 3.125 to provide that
all individuals charged with a criminal violation would be entitled
to the same discovery regardless of the nature of the charging document
(i.e., indictment, information, or notice to appear).
1996 Amendment. This is a substantial rewording of the rule
as it pertains to depositions and pretrial case management. The
amendment was in response to allegations of discovery abuse and a
call for a more cost conscious approach to discovery by the Florida
Supreme Court. In felony cases, the rule requires prosecutors to list
witnesses in categories A, B, and C. Category A witnesses are subject
to deposition as under the former rule. Category B witnesses
are subject to deposition only upon leave of court. Category B witnesses
include, but are not limited to, witnesses whose only connection
to the case is the fact that they are the owners of property;
transporting officers; booking officers; records and evidence custodians;
and experts who have filed a report and curriculum vitae
and who will not offer opinions subject to the Frye test. Category
C witnesses may not be deposed. The trial courts are given more
responsibility to regulate discovery by pretrial conference and by
determining which category B witnesses should be deposed in a
The rule was not amended for the purpose of prohibiting discovery.
Instead, the rule recognized that many circuits now have
“early resolution” or “rocket dockets” in which “open file discovery”
is used to resolve a substantial percentage of cases at or
before arraignment. The committee encourages that procedure. If
a case cannot be resolved early, the committee believes that resolution
of typical cases will occur after the depositions of the most
essential witnesses (category A) are taken. Cases which do not
resolve after the depositions of category A, may resolve if one or
more category B witnesses are deposed. If the case is still unresolved,
it is probably going to be a case that needs to be tried. In
that event, judges may determine which additional depositions, if
any, are necessary for pretrial preparation. A method for making
is provided in the rule.
Additionally, trial judges may regulate the taking of depositions
in a number of ways to both facilitate resolution of a case and protect
a witness from unnecessary inconvenience or harassment.
a provision for setting a discovery schedule, including a discovery
cut-off date as is common in civil practice. Also, a specific method
is provided for application for protective orders.
One feature of the new rule relates to the deposition of law
enforcement officers. Subpoenas are no longer required.
The rule has standardized the time for serving papers relating to
discovery at fifteen days.
Discovery in misdemeanor cases has not been changed.
(b)(1)(A)(i) An investigating officer is an officer who has
directed the collection of evidence, interviewed material witnesses,
or who was assigned as the case investigator.
(h)(1) The prosecutor and defense counsel are encouraged to
be present for the depositions of essential witnesses, and judges are
encouraged to provide calendar time for the taking of depositions
so that counsel for all parties can attend. This will 1) diminish the
potential for the abuse of witnesses, 2) place the parties in a position
to timely and effectively avail themselves of the remedies and
sanctions established in this rule, 3) promote an expeditious and
timely resolution of the cause, and 4) diminish the need to order
transcripts of the deposition, thereby reducing costs.
1998 Amendment. This rule governs only the location of
The procedure for procuring out-of-state witnesses for
depositions is governed by statute.
1996 Amendment. The designation of a witness who will present
similar fact evidence will be dependent upon the witness’s relationship
to the similar crime, wrong, or act about which testimony
will be given rather than the witness’s relationship
to the crime
with which the defendant is currently charged.
1999/2000 Amendment. This rule does not affect requests for
nonexempt law enforcement records as provided in chapter 119,
Florida Statutes, other than those that are nonexempt as a result of
a codefendant’s participation in discovery. See Henderson v. State,
745 So.2d 319 (Fla. Feb. 18, 1999).