IN THE SUPREME COURT OF FLORIDA

Transcription

1 Filing # E-Filed 04/01/ :47:39 AM IN THE SUPREME COURT OF FLORIDA IN RE: AMENDMENTS TO THE FLORIDA RULES OF CRIMINAL PROCEDURE CASE NO.: SC COMMENTS OF THE FLORIDA PUBLIC DEFENDER ASSOCIATION ON PROPOSED AMENDMENTS TO FLORIDA RULE OF CRIMINAL PROCEDURE 3.220(h)(1) RECEIVED, 04/01/ :48:47 AM, Clerk, Supreme Court The Florida Public Defender Association ( FPDA ), comprised of Public Defenders, attorneys, and support staff of nineteen judicial circuits, submits the following comments regarding the proposed amendment to Rule 3.220(h)(1), Florida Rules of Criminal Procedure. Rule 3.220(h)(1) currently provides the procedures to be employed in depositions in criminal cases. It states in pertinent part 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. The proposed amendment to the rule would eliminate the bolded language, allowing for subpoenas duces tecum to issue in criminal cases in the same manner outlined by the Rules of Civil Procedure. The FPDA supports this proposed amendment because it: (1) promotes efficiency, limits unnecessary court hearings, and streamlines the discovery process; (2) helps the defense gather vital evidence when it is not in the care, custody, or control of the State; (3) eliminates the

2 unfairness of treating criminal defense attorneys differently than their civil counterparts; and (4) is unlikely to be abused given that the trial court retains supervision of the discovery process, and all attorneys are bound by the Rules of Professional Conduct. The existing procedure for obtaining subpoenas duces tecum in criminal cases is inefficient. Currently, the defense must burden the trial court with a hearing any time it seeks the issuance of such a subpoena. This is the case even when the materiality of the items sought by the defense is uncontested. For example, in a situation where surveillance footage of the incident exists but is in the hands of a third party, the relevance of such a video is beyond question. As it stands, however, the defense would nevertheless have to bring this matter to the trial court s attention. This would serve only to waste valuable judicial resources (and risk the evidence being lost if the third party taped over it before the defense could obtain leave of court). Our court system is already overburdened. There is no need to clog dockets by requiring the defense to obtain leave of court for subpoenas duces tecum in each and every case, especially where the evidence s materiality is not in dispute. The proposed amendment to Rule 3.220(h)(1) would end this inefficiency. Rule 3.220(h)(1) currently provides that deposition procedure in criminal cases is controlled by the Rules of Civil Procedure, with the exception of subpoenas duces 2

3 tecum. The amendment would eliminate this exception and also have subpoenas duces tecum in criminal cases governed by civil procedure. Consequently, the defense would no longer be forced to obtain leave of court for every single subpoena duces tecum. This change would streamline discovery in criminal cases and reduce congestion in trial court dockets. Every actor in the criminal justice system should support a rule that increases judicial economy. In addition to furthering efficiency, the proposed amendment fixes the inequity of treating criminal defense attorneys differently than civil attorneys. Any civil attorney can issue a subpoena duces tecum without leave of court. This is a power they have had for decades. We trust those attorneys to file subpoenas duces tecum only in good faith in a quest for relevant evidence. We trust them not to harass witnesses. When they fall short of these expectations, the witness may object to the request, and the trial court or the Bar can intervene. There is no principled reason why the process for subpoenas duces tecum in criminal cases should be any different. If anything, the high stakes of a criminal prosecution show that there is greater reason to give criminal defense attorneys easier access to these subpoenas. In most civil proceedings only money is on the line. Liberty, the most precious thing of all, is at stake in a criminal case. A discovery procedure that streamlines 3

4 the discovery of exculpatory evidence strengthens the constitutional guarantees that protect us all. 1 Importantly, the Rules of Civil Procedure regulate the issuance of subpoenas duces tecum on third parties. In a civil suit, a party wishing to serve such a subpoena on a third party must satisfy numerous preliminary steps designed to prevent abuse. First, the party must serve notice on every other party of its intent to serve a subpoena duces tecum at least 10 days before the subpoena is issued. Fla. R. Civ. P (b). The proposed subpoena must be attached to the notice and include: (1) the time, place, and method for production of the documents or things; (2) the name and address of the person who is to produce the documents or things, if known, and if not known, a general description sufficient to identify the person or the particular class or group to which the person belongs; (3) a designation of the items to be produced; and (4) a statement that the person who will be asked to produce the documents or things has the right to object to the production. Id. A party receiving the above notice can object within ten days of service. If such an objection is made, the documents or things will not be produced until the trial court resolves the objection. Id. 1 In its final report to this Court, the Florida Innocence Commission noted the relationship between wrongful convictions and the failure to ensure that all exculpatory evidence is brought to light. See Florida Innocence Commission, Final Report to the Supreme Court of Florida (2012). 4

5 The above requirements protect the rights of parties and non-parties alike. A third party receiving a subpoena duces tecum must be informed with particularity of what is being sought and advised of its right to object. The opposing party must be advised of the proposed subpoena before it is issued and has the right to object to it. The trial court only gets involved where there is an actual dispute about the materiality of evidence sought. This process is fair and efficient. It prevents needlessly wasting the court s time when the defense seeks evidence from a third party it is clearly entitled to. This Court should import it into the criminal arena. The Florida Prosecuting Attorneys Association ( FPAA ) has filed a comment with this Court opposing the adoption of the amendment to Rule 3.220(h)(1). This comment addresses the concerns raised by the FPAA in turn. The FPAA first notes that the defense already has the power to request subpoenas duces tecum under Rule 3.220(f), which allows for further discovery upon a showing of materiality. The FPAA argues that the status quo, where the Defendant has the burden of showing the relevance and materiality of the documents before the subpoena issues, should be preserved. FPAA Comment at 2. The only reason why a defendant would ever seek documentary production, however, is out of the belief that the documents or items sought undermine the State s case; support an affirmative defense; or otherwise exonerate the defendant. Evidence that does not serve any of these ends would be useless to the defense. 5

6 This Court should reject a discovery regime that places a threshold burden on the defendant seeking exculpatory evidence held by third parties. There is unfairness in placing this burden on the defense. Unlike civil litigants, a defendant who needs a subpoena duces tecum must first secure leave of court. This in turn requires not only disclosing to the State what documents are sought, but also requires establishing why the defense believes this evidence is relevant and material. Rule 3.220(h) in its current form uniquely disadvantages criminal defense attorneys by mandating that they to reveal their defense theory or strategy as a condition precedent to obtaining a subpoena duces tecum. The FPAA also suggests that the proposed amendment is unnecessary in light of the State s threefold obligation to provide exculpatory information to the Defendant. FPAA comment at 2. This obligation stems from the Florida Rules of Criminal Procedure; the State s due process obligations under Brady v. Maryland, 373 U.S. 83 (1963); and the Rules Regulating the Florida Bar. But the State s positive discovery and Brady obligations are only triggered by evidence in its care, custody, or control. Likewise, the prosecutor s duty under the Bar Rules only extends to exculpatory evidence known to the prosecutor. Any exculpatory evidence outside of the State s possession and unknown to the prosecutor will never reach the defense by way of the State. For example, a video held by Wal-Mart in a retail theft case may exonerate the defendant. 6

7 However, if that video is not in the State s possession and unknown to the prosecutor, it will only be discovered by the defense attorney executing his or her Sixth Amendment duty to investigate the case. A subpoena duces tecum is the proper procedural vehicle to accomplish this. The FPDA applauds any change to the rules of procedure that increases the likelihood of exculpatory evidence being brought to light. The FPAA next suggests that utilizing the Rules of Civil Procedure for subpoenas duces tecum in criminal cases will cause confusion, because it is unclear whether a victim is a third party. FPAA Comment at 5. The FPDA respectfully submits that there is no confusion. As the FPAA itself recognizes, a victim is not a party to a criminal prosecution. FPAA Comment at 4. Victims are non-parties falling within the scope of Florida Rule of Civil Procedure As described above, the Rules of Civil Procedure have been carefully crafted to avoid the unscrupulous use of subpoenas duces tecum. A victim (or any other third party) receiving a subpoena duces tecum would have to be advised of his or her right to object. Fla. R. Civ. P (b). The State in turn would have the power to object to a proposed subpoena within 10 days of service of the notice of the proposed subpoena. An actual examination of the Rules of Civil Procedure shows that neither the State nor third parties will be injured by the adoption of these rules. 7

8 The FPAA raises the specter of unwarranted invasion[s] of a crime victim s privacy. FPAA Comment at 4. The FPAA warns that the proposed rule would 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. FPAA Comment at 5. In other words, the FPAA argues that criminal defense attorneys do not deserve to have the same subpoena powers civil attorneys have, because they will abuse those powers unless the court supervises each and every case. These concerns fail to take into account (1) the ethical rules that defense attorneys follow and are bound by; and (2) the trial court s broad supervisory powers over the discovery process. First, defense attorneys have one goal and one goal alone: to zealously represent their clients within the bounds of professionalism. They seek the best possible outcome for each client while respecting the law. They do not seek to harass the victims of crime with disingenuous discovery requests designed solely to intimidate. This Court should not adopt a presumption that criminal defense attorneys, unlike their civil counterparts, will not abide by their ethical obligations. Using discovery as a harassment tool is not only reprehensible but also punishable by the Florida Bar. The Preamble to the Rules of Professional Conduct caution that a lawyer should use the law s procedures only for legitimate purposes and not to harass or intimidate others. The Rules preclude an attorney from 8

9 mak[ing] a frivolous discovery request Rule 4-3.4(d). Although there is no record evidence before this Court indicating that criminal defense attorneys cannot be trusted with a procedure civil attorneys have used for decades, the Bar is more than capable of disciplining any attorney who crosses the line. Second, trial courts retain ample control over the discovery process. Pursuant to Florida Rule of Criminal Procedure 3.220(l)(1), 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, unnecessary inconvenience, or invasion of privacy. Similarly, pursuant to Florida Rule of Criminal Procedure 3.220(m)(1), [a]ny person may move for an order denying or regulating disclosure of sensitive matters. Finally, the protections of Rule can be invoked by the trial court even without a motion by the State or a third party: 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, or unnecessary annoyance or embarrassment resulting from the disclosure, that outweighs any usefulness of the disclosure to either party. Fla. R. Crim. P (e). The protections afforded by the discovery rules to third parties are significant. The trial court s oversight of the discovery process further underscores that the concerns raised by the FPAA will not come to pass. 9

10 Finally, the FPAA asserts that records received by the State in a criminal case ultimately become public record, which could discourage victims from cooperating with the prosecution. FPAA Comment at 6. Of course, if the defense subpoenas third party documents and decides not to use them at trial, those documents will not be turned over to the State. The defense is only required to turn over documents it anticipates actually using. Fla. R. Crim. P (d). If documents uncovered by a defendant s subpoena duces tecum make their way into the State s possession, it is only because the defense has decided it will be using them at trial. Evidence the defense intends to introduce at trial is indeed a matter of public record. For the above reasons, the FPDA supports the adoption of the proposed change to Rule 3.220(h). The proposed amendment would increase judicial efficiency and reduce the burden imposed on trial courts by the discovery process. These changes will not only save time and reduce costs, but will also promote fairness. It will be easier for the defense to obtain key evidence held by third parties. No longer will criminal defense attorneys be singled out for judicial handholding. Criminal defense attorneys have the lives of their clients in their hands. We entrust them with awesome responsibilities. We can entrust them with modernized subpoena powers. 10

11 CERTIFICATES I HEREBY CERTIFY that a copy of the foregoing was furnished by , on April 1, 2015, to: Honorable Samantha L. Ward Chair, Criminal Procedure Rules Committee George Edgecomb Courthouse 800 E. Twiggs Street, Suite 421 Tampa, FL / wardsl@fljud13.org Heather S. Telfer Staff Liaison Criminal Procedure Rules Committee The Florida Bar 651 East Jefferson Street Tallahassee, FL htelfer@flabar.org I HEREBY CERTIFY that these comments were formatted in 14-point Times New Roman. /s/ Julianne M. Holt President, Florida Public Defender Association, Inc. Public Defender, 13 th Judicial Circuit Florida Bar No E. Twiggs Street Tampa, FL Jholt@pd13.state.fl.us 11