IN THE SUPREME COURT OF FLORIDA

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1 Filing # E-Filed 03/27/ :48:58 PM IN THE SUPREME COURT OF FLORIDA IN RE: AMENDMENTS TO THE FLORIDA RULES OF CRIMINAL PROCEDURE CASE NO.: SC / RECEIVED, 03/27/ :53:38 PM, Clerk, Supreme Court COMMENTS OF THE FLORIDA PROSECUTING ATTORNEYS ASSOCIATION ON PROPOSED AMENDMENTS TO FLORIDA RULE OF CRIMINAL PROCEDURE 3.220(h)(1) The Florida Prosecuting Attorneys Association ( FPAA ), comprised of the State Attorneys of the Twenty Florida Judicial Circuits, submits the following comments regarding the proposed amendment to Rule 3.220(h)(1), Florida Rules of Criminal Procedure. In pertinent, Rule 3.220(h)(1) presently provides that: 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. As proposed, the amendment would eliminate the exception for subpoenas duces tecum from Rule 3.220(h)(1). The FPAA opposes the proposed amendments based on the reasons outlined below. I. Criminal Prosecutions and Judicial Gate-keeping Presently, the Defendant in a criminal prosecution has the ability to issue subpoenas duces tecum with the Court acting as a gatekeeper. Florida Rule of 1

2 Criminal Procedure 3.220(f) currently allows additional discovery in criminal cases on a showing of materiality. The Court may require such other discovery to the parties as justice may require. Therefore, the Defendant already has the ability to request additional discovery, including subpoenas duces tecum of the victim, witnesses or third party records custodians. Under the present form of the rule, the Court acts as a gatekeeper and the Defendant has the burden of showing the relevance and materiality of these records. The current process ensures that the Court makes a finding that the Defendant s request is reasonably calculated to lead to the discovery of admissible evidence. II. Differences between Civil and Criminal Discovery Obligations Unlike parties in civil cases, the State has a threefold obligation to provide exculpatory information to the Defendant. This applies to information that can be used both substantively and for impeachment purposes. First, Florida Rule of Criminal Procedure 3.220(b)(4) requires the prosecutor to 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 obligations. Second, Brady v. Maryland, 373 U.S. 83 (1963) and its progeny require the prosecutor to disclose any evidence favorable to an accused where the evidence is 2

3 material either to guilt or punishment, irrespective of the good faith or bad faith of the prosecution. Lastly, Rule 4-3.8, Rules Regulating the Florida Bar, expands the responsibility of a prosecutor to make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense... III. The Unique Position of Victims in Criminal Cases Victims and witnesses in criminal cases enter the system reluctantly. In fact, victims of crime occupy a unique status. Crime victims have rights imbedded in Article I, section 16(b) of the Florida Constitution. Victims are entitled to the right to be informed, to be present, and to be heard when relevant, at all crucial stages of criminal proceedings, to the extent that these rights do not interfere with the constitutional rights of the accused. Crime victims are not represented by the prosecuting attorney, as is the case with litigants in a civil matter. As an example, the prosecutor may not advise a criminal defense attorney not to speak with a victim, nor can the state attorney advise the victim not to speak with the defense attorney. That is why in some cases a victim may retain a private attorney to represent his or her interests. 3

4 IV. Victim s Rights and Invasion of Privacy Removing the requirement that criminal defense attorneys seek leave of the Court for the issuance of a subpoena duces tecum will encourage the unwarranted invasion of a crime victim s privacy. If the rule is amended as proposed, criminal defense attorneys will have the ability, without affirmatively obtaining leave of the court, to issue subpoenas duces tecum to victims, as well as third-party entities who maintain records of a victim s activities. This could include banking records, phone records, employment records, personal computer records, personal logs, journals, social media records, financial records, to name a few. With the court removed as initial gatekeeper, there will likely be a proliferation of subpoenas duces tecum that constitute nothing more than fishing expeditions or, worse, attempts to harass or discourage victims of crime. Insofar as the rules governing civil depositions, Florida Rule of Civil Procedure 1.310(b)(5) permits notification to a party deponent accompanied by a Request for Production in accordance with Rule The procedures set forth in Rule apply to the production of documents and things by parties to a civil suit. A victim is not a party to a criminal prosecution. The procedure includes a written response time of 30 days. 4

5 This raises several questions, such as: Is it the obligation of the State to respond? Is this procedure more efficient than having the criminal defendant ask the Court for permission to do additional discovery on a showing of materiality and as justice may require? Florida Rule of Civil Procedure allows a party to issue a subpoena directing the production of documents or things from third-parties. A party may object to the production under this rule within 10 days of service. This also raises several questions, including: Is the victim a third party? Can the victim object? Is the state obligated to treat the victim as a client for purposes of discovery? The concern regarding the privacy rights of victims, in light of the volume of criminal cases within our criminal justice system should be carefully considered when expanding wholesale the issuance of defense subpoenas duces tecum. The proposed rule change, which removes the Court as a gatekeeper, may encourage criminal defense attorneys to issue subpoenas for records that are onerous, irrelevant and unduly harass or discourage crime victims from cooperating with the state prosecution. 5

6 V. Public Records Unlike in civil cases, once records are received by the State in a criminal case, notwithstanding admissibility or relevance to the prosecution or defense, they will ultimately become a public record. In some instances these revelations may have a negative impact on the private lives of those victims and witnesses who become the subject of what ultimately may be nothing more than a fishing expedition. This may in turn serve to further discourage victims from cooperating with criminal prosecutions. VI. Ability to Represent the Victim and the Potential for Increased Expenditure of Court Time and Resources The prosecutor does not represent the victim as would a private attorney in a civil matter. Prosecutors routinely maintain a case load that can easily exceed 200 felony cases per attorney. In felony prosecutions, each case may generate numerous defense subpoenas for the deposition of state witnesses, or unlisted witnesses who may have information relevant to the offense charged, as allowed in Florida Rule of Criminal Procedure 3.220(h)(A). The rule does not specify a threshold as to the degree of relevance or likelihood that these depositions ultimately would lead to the discovery of admissible evidence. A criminal defendant may list third-party entities who maintain documents relating to victims. 6

7 Opening the floodgates to the issuance of inappropriate or marginal subpoenas duces tecum, without requiring a showing of relevancy or materiality in advance, would likely result in unnecessary court time, including motions to quash, motions for protective order and other potential motions, or in the alternative, may result in no action being taken and the victim or witness being unduly burdened or harassed. At this time, and in light of the positive discovery obligations required of the State, the burden of showing relevance is appropriately on the Defendant to motion the Court for permission to issue a subpoena duces tecum. The rule change would enable defense attorneys to issue subpoenas duces tecum by right, and the State (the victim, witness or records keeper) would need to affirmatively object. In actuality, rather than creating efficiency, this rule change would encourage the issuance of more such un-vetted subpoenas and the likelihood of reactive hearings and proceedings. [Remainder of page left intentionally blank] 7

8 VII. Conclusion Based on the foregoing reasons, the Florida Prosecuting Attorneys Association respectfully requests that the proposed amendment to Florida Rule of Criminal Procedure 3.220(h)(1) be rejected. Respectfully Submitted, /s/ Arthur I. Jacobs Arthur I. Jacobs, General Counsel Florida Prosecuting Attorneys Association Gateway Blvd., Ste. 201I Fernandina Beach, FL (904) Florida Bar No and Alan S. Johnson Chief Assistant State Attorney Office of the State Attorney 15 th Judicial Circuit 401 North Dixie Highway West Palm Beach, FL (561) Florida Bar No

9 CERTIFICATE OF SERVICE I hereby certify that on this 27 th day of March, 2015, a copy of the foregoing was furnished by electronic mail to: The Honorable Samantha Ward, Chair Criminal Procedure Rules Committee George Edgecomb Courthouse, 800 E. Twiggs Street, Suite 421, Tampa, Florida , wardsl@fljud13.org; Heather Telfer, Staff Liason Criminal Procedure Rules Committee The Florida Bar 651 E. Jefferson Street Tallahassee, Florida htelfer@flabar.org John F. Harkness, Jr. Executive Director The Florida Bar 651 East Jefferson Street Tallahassee, FL jharkness@flabar.org Maria Aguila, Director Judicial Staff Attorneys Duval County Unified Courthouse 501 W. Adams Street #6130 Jacksonville, FL maguila@coj.net Julianne M. Holt, President Florida Public Defenders Association P.O. Box Tampa, FL jholt@pd13.state.fl.us 9

10 William R. Ponall, Co-Chair Florida Association of Criminal Defense Lawyers 425 W. New England Avenue, Ste. 200 Winter Park, FL Abraham Laeser 505 Stonemont Lane Weston, FL Blaise Trettis, Public Defender 18 th Judicial Circuit 2725 Judge Fran Jamieson Way, Bldg. E Viero, FL btrettis@pd18.net Carlos J. Martinez, Public Defender 11 th Judicial Circuit Bennett H. Brummer Building 1320 NW 14 th Street Miami, FL cmartinez@pdmiami.com Luke Newman, Co-Chair Florida Association of Criminal Defense Lawyers 908 Thomasville Road Tallahassee, FL luke@lukenewmanlaw.com Cheryl Little, Executive Director Americans for Immigrant Justice 3000 Biscayne Blvd., Ste. 400 Miami, FL clittle@aijustice.org 10

11 Randy McGrorty, CEO Catholic Legal Services, Archdiocese of Miami 25 SE 2 nd Avenue #220 Miami, FL rmcgrorty@cclsmiami.org Alexander Vernon, Acting Director Asylum Immigrant Rights Law Clinic Ave Maria School of Law 1025 Commons Circle Naples, FL avernon@avemarialaw.com Michael S. Vastine, Director Immigration Clinic St. Thomas University School of Law NW 37 th Avenue Miami Gardens, FL mvastine@stu.edu Honorable O.H. Eaton, Jr. 708 S. Oak Avenue Sanford, FL oheatonjr@live.com Jacob L. Ratzan, President American Immigration Lawyers Association South Florida Chapter 1450 Brickell Avenue, Ste Miami, FL Jacob@ratzanlaw.com Rebecca Sharpless, Director Immigration Clinic University of Miami Law School 1311 Miller Drive, E257 Coral Gables, FL rsharpless@law.miami.edu Honorable Mike Murphy 11

12 425 N. Orange Avenue, Ste Orlando, FL James Marion Moorman P.O. Box 24 Bartow, Florida Pamela Masters, Clerk Fifth District Court of Appeal 300 South Beach Street Daytona Beach, FL /s/ Arthur I. Jacobs Arthur I. Jacobs, General Counsel Florida Prosecuting Attorneys Association CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY that these Comments were prepared using Times New Roman, 14-point font, in compliance with Florida Rule of Appellate Procedure 9.210(a)(2). /s/ Arthur I. Jacobs Arthur I. Jacobs, General Counsel Florida Prosecuting Attorneys Association 12