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December 15, 2013
Amendments to the Rules of Criminal Procedure

The Florida Innocence Commission (Commission) has recommended amending Florida Rule of Criminal Procedure 3.220(b), Prosecutor’s Discovery Obligation, to provide for more detailed disclosure in the case of informant witnesses. See Florida Innocence Commission Final Report to the Supreme Court of Florida, June 25, 2012 (http://www.flcourts.org/gen_public/finalreport2012.rtf), at 49-92, 166-67, and Appendix G (http://www.flcourts.org/gen_public/FinalReportAppendicesCombined.pdf). Following a referral by the Florida Supreme Court (Court), the Court’s Criminal Court Steering Committee submitted a report recommending that the Court not amend rule 3.220, as recommended by the Commission. The Court, on its own motion, is considering amending rule 3.220 based upon the recommendations of the Commission. The proposed amendments pertain to the prosecutor’s duty to disclose certain information concerning informant witnesses. The Court is concerned about the Commission’s findings regarding the incidence of wrongful convictions involving “jailhouse informants.” The proposed amendments under consideration are aimed at reducing the risks associated with “jailhouse informant” testimony.

The Court invites all interested persons to comment on the amendments under consideration, which are reproduced in full below, as well as online at http://www.floridasupremecourt.org/decisions/proposed.shtml. All comments must be filed with the Court on or before January 14, 2014. If filed by an attorney in good standing with The Florida Bar, the comment must be electronically filed via the Portal in accordance with In re: Electronic Filing in the Supreme Court of Florida via the Florida Courts E-Filing Portal, Fla. Admin. Order No. AOSC13-7 (Feb 18, 2013). If filed by a non-lawyer or a lawyer not licensed to practice in Florida, the comment must be electronically filed via e-mail in accordance with In re Mandatory Submission of Electronic Copies of Documents, Fla. Admin. Order No. AOSC04-84 (Sept. 13, 2004). Electronically filed documents must be submitted in Microsoft Word 97 or higher. Any person unable to submit a comment electronically must mail or hand-deliver the originally signed comment to the Florida Supreme Court, Office of the Clerk, 500 South Duval Street, Tallahassee, Florida 32399-1927; no additional copies are required or will be accepted.

IN THE SUPREME COURT OF FLORIDA

IN RE: AMENDMENTS TO FLORIDA RULE OF CRIMINAL PROCEDURE 3.220, CASE NO. SC13-1541

RULE 3.220. DISCOVERY

(a) [No changes]

(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 and material within the state’s possession or control, except that any property or material that portrays sexual performance by a child or constitutes child pornography may not be copied, photographed, duplicated, or otherwise reproduced so long as the state attorney makes the property or material reasonably available to the defendant or the defendant’s attorney:

(A) a list of the names and addresses of all persons known to the prosecutor to have information that 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, which shall be separately identified within this category, (4) investigating officers, (5) witnesses known by the prosecutor to have any material information that tends 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., and (8) informant witnesses, whether in custody, who offer testimony concerning the statements of a defendant about the issues for which the defendant is being tried.

(ii)-(iii) [No changes]

(B)-(L) [No changes]

(M) whether the state has any material or information that has been provided by an informant witness, including:

(i) the substance of any statement allegedly made by the defendant about which the informant witness may testify;

(ii) a summary of the criminal history record of the informant witness;

(iii) the time and place under which the defendant’s alleged statement was made;

(iv) whether the informant witness has received, or expects to receive, anything in exchange for his or her testimony;

(v) the informant witness’ prior history of cooperation, in return for any benefit, as known to the prosecutor.

(c)-(o) [No changes]

Committee Notes

1968 Adoption – 1998 Amendment. [No changes]

Court Commentary

2013 Amendment. The amendment to subdivision (b)(1)(A)(i)(8) is not intended to limit in any manner whatsoever the discovery obligations under the other provisions of the rule. With respect to subdivision (b)(l )(M)(iv), the Court recognizes the impossibility of listing in the body of the rule every possible permutation expressing a benefit by the state to the informant witness. Although the term “anything” is not defined in the rule, the following are examples of benefits that may be considered by the trial court in determining whether the state has complied with its discovery obligations. The term “anything” includes, but is not limited to, any deal, promise, inducement, pay, leniency, immunity, personal advantage, vindication, or other benefit that the prosecution, or any person acting on behalf of the prosecution, has knowingly made or may make in the future.

1996 Amendment – 1999/2000 Amendment. [No changes]

[Revised: 08-19-2014]