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Florida Bar Journal

Deposition Reform: Is the Cure Worse than the Problem?

Criminal Law

On October 1, 1996, the ability of a criminal defendant to engage in pretrial discovery was substantially modified by the Florida Supreme Court.1 The amend-ments to Rule 3.220, Florida Rules of Criminal Procedure, adopted by the court may well render Florida’s entire pretrial procedure in criminal cases unconstitutional.

Under the first criminal procedure rules in this state, as amended in 1968, defense discovery deposi-tions were authorized only “on showing that the testimony of the witness may be material or relevant on the trial,” and “on showing that the witness will not cooperate in giving a voluntary, signed, written state-ment to the person charged or his attorney.”2 This rule was substantially modified in 1972 to authorize unlimited discover-y depositions without leave of court.3 D uring this same period of time, a class action suit by criminal defendants against the state attorney for the 11th Judicial Circuit of Florida, was working its way through the federal court system.

Defendant Pugh was arrested in Dade County in March 1971 and charged by information with several felony offenses. The Rules of Criminal Procedure as amended in 1968 were in effect in his case. The constitutionality of Florida’s pretrial procedures under these rules was challenged. The U.S. District Court found these rules to be constitutionally infirm and ordered that a plan be submitted which would provide preliminary hearings in all cases charged by information.4 As the case progressed through the federal appellate courts, the 1972 amendments to the rules of procedure were adopted.

The U.S. Supreme Court reviewed the 1972 rules and held in Gerstein v. Pugh, 420 U.S. 103 (1974), that while a judicial hearing is not a prerequisite to prosecution by information, the Fourth Amendment requires a judicial determination of probable cause as a prerequisite to extended restraint of liberty following arrest. The Court made clear that the constitutionality of any particular method of determining probable cause can be properly decided only by evaluating a state’s pretrial procedures as a whole, not by isolating a particular part of its total system. One of Florid-a’s pretrial procedures at that time was a defendant’s right to discovery depositions without prior leave of court. With that unbridled right to depositions in existence, the Court upheld the constitutionality of Florida’s pretrial procedures.

Despite this clear warning that modification of any component of Florida’s pretrial procedures might result in rendering the procedures unconstitutional in their entirety, assaults on a defendant’s right to discovery depositions began in earnest in 1987.

In November of 1987, the Florida Department of Law Enforcement (FDLE) published a report entitled, “Discovering the Injus-tice: Criminal Depositions in Florida.” This FDLE report, without making any reference to Gerstein, noted that depositions are not specifi-cally required by the federal Constitution. The report further contended that depositions lead to abuse of witnesses and that the cost of depositions, both in terms of dollars and manpower hours, outweighed their usefulness. FDLE recommended the complete abolition of discovery depositions in criminal cases.

In response to FDLE’s report, the Florida Legislature addressed the deposition question during the 1988 session. Ultimately, the legislature recommended that the Supreme Court appoint a commission to “consider various issues related to the use of discovery depositions in criminal proceedings,” specifically:

(1) Protection for victims and other witnesses.

(2) Limiting depositions to only essential witnesses.

(3) Prohibiting the defendant from attending depositions unless good cause is shown.

(4) Use of technological advances to reduce costs and scheduling problems.

(5) Potential savings of public funds and the time of law enforcement, witnesses, prosecutors, defense counsel, and court personnel that may be derived by employing alterna-tive discovery techniques.

(6) Any other appropriate issues.5

Pursuant to the legislature’s request, the Supreme Court appointed a blue-ribbon commission comprised of 14 attorneys, judges, and law professors.6 The commission was not provided a budget to conduct investigations but proceeded to gather records, receive comments from interested parties, and conduct three full-day hearings in various locations throughout Florida. The commission gathered reams of material and submitted an exhaustive 95-page report on February 1, 1989, less than seven months after it was created.7

The commission found several problems with the deposition rule as it existed in 1988 and recommended numerous changes. Conse-quently, the Supreme Court reformed the deposition rule in 1989 to ensure that witnesses were adequately protected and that deposi-tions were scheduled in such a way as to minimize the cost and inconvenience to both witnesses and parties. Provisions were made for the establishment of witness coordination offices to help coordinate the taking of depositions of law enforcement officers; certain witnesses could be designated by the prosecu-tors as persons who could not be deposed without prior court authorization; the defendant was banned from attending depositions without authoriza-tion of the court; and depositions of young children and sensitive witnesses had to be videotaped or taken in front of a judge or special master in order to protect the witness from harassment or intimidation. Finally, depositions in misdemeanor and criminal traffic offenses were abolished except upon good cause shown. However, the court retained depositions in all felony cases finding, “[d]iscovery depositions are a necessary and valuable part of our criminal justice system, and they are clearly worth the risk of some minor abuse.”8

The current amendments to Rule 3.220, which were adopted “in hope of further curtailing abuse of the deposition process,” have unilaterally deprived a defendant of at least a portion of this “necessary and valuable part of our criminal justice system” and thereby have subjected all pretrial procedures in Florida to federal constitutional attack.

During the 1996 legisla-tive session there was an attempt to completely abolish a defend-ant’s ability to take depositions.9 Prosecutors and law en-force-ment officials contended that victims and witnesses were abused during depositions, while the defense bar argued that depositions made the criminal justice system more efficient by facilitating plea bargaining. The legislation died before reaching the floor after Jus-tice Overton, speak-ing on behalf of a unani-mous Su-preme Court, advo-cated retention of discovery deposi-tions.

Having failed in the legislature, advocates for a change in the deposition process launched an attack in the Florida Supreme Court. A petition was filed requesting the court “to consider abolishing or substan-tially modify Rule 3.220(h), Florida Rules of Criminal Procedure, and Rule 8.060(d), Florida Rules of Juvenile Proce-dure.” This petition was signed by the Attorney General of Florida, the 20 state attorneys, the three U.S. attorneys, the statewide prosecutor, general counsel for the Florida Prosecuting Attorneys Association, the Florida Department of Law Enforcement, the Florida Sheriff’s Association, the Florida Police Benevolent Association, and the attorney for the Florida Police Chief’s Association.10

In accordance with the Florida Rules of Judicial Administra-tion, the court ordered the petitioners to file their specific proposed amendments to the rules in question by June 1, 1996.11 The Criminal Procedure Rules Committee and the Juvenile Rules Committee were ordered to file responses with the court after the specific amendments were submitted.

Rather than challenge the already expressed opposition of the court to total abolition of depositions, the petitioners respond-ed to the court’s order by advocating that substantial limita-tions be placed on an adult defendant’s right to take discovery deposi-tions. Their proposed amendments to Florida Rule of Criminal Procedure 3.220(h) would have permitted depositions only in cases in which a defendant was charged with a first degree felony, life felony, or capital felony. Defendants would have been prohibited from taking any depositions when charged with second or third degree felonies. In the limited instances in which deposi-tions would have been permitted, the only persons who could have been deposed were: 1) eyewitnesses to an offense; 2) expert witness-es; and 3) alibi witnesses. Addi-tionally, all depositions would have been limited to a maximum of two hours unless there was prior authoriza-tion by the trial court; and a deponent would have been given the right to file a motion to quash a deposition subpoena on the grounds that the deponent would be “unduly burdened” if required to appear for a deposi-tion. Depositions in juvenile cases would have been totally abolished.12

A special subcommittee of the Criminal Procedure Rules Committee was empaneled to “analyze the history of depositions in criminal cases in Florida; to compare Florida’s discovery process with that of other states; to compare Florida’s discovery process with model codes; and to make recommendations to the full committee for purposes of responding to the Peti-tion.” While the special subcommittee found that time restraints precluded it from com-pleting its assignment, it did make certain recommendations that were “tentative and dependent upon further study.” The greatest change recom-mended by the special subcommittee was that “witnesses should be placed in three categories for discovery purposes.” The report of the special subcom-mittee did not distinguish between witnesses listed by the state and those listed by the defense.13

The recommendation of the special subcommittee was rejected by the Criminal Procedure Rules Committee. Instead, the commit-tee advised the court that no change should be made to the deposition rules “unless and until the propo-nents of such change meet the burden of providing a factual basis of the need for such changes.” Finding that no factual basis existed to justify the proposed changes, the commit-tee advised against making any changes to the existing rules.14

Opposition to the petitioners’ proposed amendments came from many other sources as well. During oral argu-ments before the Florida Supreme Court, the Florida Public Defenders Association, the Conference of Circuit Court Judges, The Florida Bar’s Criminal Law Section, the Juvenile Rules Commit-tee, the Florida Associa-tion of Criminal Defense Lawyers, as well as the Criminal Procedure Rules Committee all opposed the proposed rules changes.

Despite agreeing with the Criminal Procedure Rules Committee that “there is insufficient data from which to determine if the substantial limitation of discovery depositions requested. . . is warranted,” on December 21, 1995, the Supreme Court direct-ed the Criminal Procedure Rules Committee to draft amendments to the deposition rule. The Supreme Court directed that the special subcommittee recommendations that had been rejected by the committee as a whole be used as the basis for drafting amend-ments to the deposition rule.15

The Criminal Procedure Rules Committee, instead of proposing an amendment in accordance with the special subcommittee’s recommen-dation, proposed that only the state be required to classify witnesses into three categories. Under the proposed amendments, the defense was not required to make similar classifi-ca-tions when it supplied a list of potential witnesses as required by Florida Rule of Criminal Procedure 3.220(-d).16

Simply requiring the state to categorize its list of witnesses without placing a similar requirement on the defense would be wholly without significance except that the categorization of witnesses also affects their availability for deposition. The amendments proposed by the committee provided that category A witnesses “would be subject to the present deposition rule”; category B witnesses would be subject to deposition “only upon leave of court upon a showing of good cause”; and category C witnesses “would not be subject to deposition.” proposing an amendment that did not require the defense to also categorize its list of witnesses, a rule was created that abolished reci-procity in the discovery process. The amendments proposed by the committee were adopted without significant modification by the Supreme Court on September 12, 1996.

Under the newly amended rule, when the state files its “discovery exhibit” listing the names and addresses of all persons having information relevant to the offense charged, it must now classify each witness into one of three categories. Category A witnesses are:

1) eyewitnesses;

2) alibi and rebuttal to alibi witnesses;

3) witnesses who were present when a record-ed or unrecorded statement was taken from or made by a defendant or codefen-dant;

4) investigating officers;

5) Brady witnesses;

6) child hearsay witnesses; and

7) certain expert witnesses.17

Category C witnesses are those witnesses who either performed only ministerial functions or who the prosecutor does not intend to call at trial and who have fully set forth their involvement in the case in a written report.18 Category B witnesses are all persons who are not listed in either categories A or C.19

Only category A witnesses may be deposed by the defense without leave of court.20 The defense must show “good cause” before category B witnesses may be deposed.21 And, while in the past persons who will now be classified as category C witnesses could be deposed upon a showing of good cause, henceforth category C witnesses may not be deposed at all unless the defense can show that they have been improperly classified.22 Rule 3.220(h)(1)(A), as amended, provides that the state may take the deposi-tion of all witnesses listed by the defense without leave of court. It is this abandon-ment of reciproci-ty which raises serious due process questions.

The U.S. Supreme Court has had the opportunity to review pretrial procedures that did not provide for reciproci-ty. In Wardius v. Oregon, 412 U.S. 470 (1973), the Court reviewed Oregon’s notice-of-alibi rule which required a defendant to provide the state with notice of intent to rely on the defense of alibi together with the names and addresses of each alibi witness. There was no provision for reciprocal discovery of alibi rebuttal witnesses in the Oregon rule. In finding the Oregon rule unconstitutional, the Court found that “although the Due Process Clause has little to say regarding the amount of discovery which the parties must be afforded, it does speak to the balance of forces between the accused and his accuser.”23 The Court specifically held that “in the absence of a strong showing of state interest to the contrary, discovery must be a two-way street.”24

Although the amendments to Rule 3.220 comply with the specific holding in Wardius by providing that not only alibi but also alibi rebuttal witnesses are subject to deposition without leave of court, the underlying legal principle of Wardius is violated by the rule as amended. The U.S. Supreme Court ruled:

The state may not insist that trials be run as a “search for truth” so far as defense witnesses are concerned, while maintaining “poker game” secrecy for its own witnesses. It is fundamentally unfair to require a defendant to divulge the details of the defendant’s own case while at the same time subjecting him or her to the hazard of surprise concerning refutation of the very pieces of evidence which he or she disclosed to the state.25

The failure of the amendments to the deposition rule to treat the state and the defense equally, at the very least, will subject the new rule to federal constitutional challenge. A successful challenge to this particular part of Florida’s pretrial procedure will necessitate a review of all of Florida’s pretrial procedures.

Proponents of the rule changes are quick to point out that Florida is one of only a handful of states that permits defense discovery depositions. What propo-nents of the rule changes are less quick to point out is that Florida is one of an even fewer number of states that does not require adversarial probable cause determinations. Florida permits prosecution to proceed based upon an information signed by a prosecutor.26 Neither an adversarial preliminary hearing nor a grand jury proceeding is required before the filing of charges except when death is a possible penalty.27 If the amend-ments to Rule 3.220 are found to be constitutionally infirm, Florida may well be forced to return to a system of adversarial probable cause hearings or require grand jury indict-ments in all felony cases.

One must question whether anecdotal evidence of abuse of the deposition process without empirical support should be sufficient to warrant jeopardizing Florida’s entire pretrial procedure.

1 In re: Amendment to Florida Rule of Criminal Procedure 3.220(h) and Florida Rule of Juvenile Procedure 8.060(d); In re: Amendment to Florida Rule of Criminal Procedure 3.220(h), 681 So. 2d 666 (Fla. 1996).
2 Fla. R. Crim. P. 1.220(f) (1968).
3 Fla. R. Crim. P. 3.220(d) (1972).
4 Pugh v. Rainwater, 332 F. Supp. 1107 (S.D. Fla. 1971).
5 H. Con. Res. No. 1679.
6 In re: Criminal Discovery Commission, Administrative Order of the Florida Supreme Court dated July 7, 1988.
7 Report of the Florida Supreme Court’s Commission on Criminal Discovery, February 1, 1989.
8 In re: Amendment to Florida Rule of Criminal Procedure 3.220 (Discovery), 550 So. 2d 1097 (Fla. 1989).
9 HB 675.
10 In re: Petition to Review Current Provisions of Rule 3.220(h), Florida Rules of Criminal Procedure, & Rule 8.060(d), Florida Rules of Juvenile Procedure, Case No. 85,585 (Fla. April 25, 1995).
11 In re: Amendments to Florida Rule of Criminal Procedure 3.220(h) and Florida Rule of Juvenile Procedure 8.060(d), Case No. 85,585, Administrative Order of the Florida Supreme Court dated May 12, 1995.
12 In re: Petitioner’s Proposed Amendments to Florida Rules of Criminal Procedure and Florida Rules of Juvenile Procedure, Case No. 85,585.
13 Florida Bar Rules of Criminal Procedure Committee, Report of the Special Subcommittee on Depositions dated July 14, 1996.
14 In re: Amendment to Florida Rule of Criminal Procedure 3.220(h), Report of the Criminal Procedure Rules Committee.
15 In re: Amendment to Florida Rule of Criminal Procedure 3.220(h) and Florida Rule of Juvenile Procedure 8.060(d); In re: Amendment to Florida Rule of Criminal Procedure 3.220(h), 668 So. 2d 951 (Fla. 1995).
16 In re: Amendment to Florida Rule of Criminal Procedure 3.220(h), Report of the Criminal Procedure Rules Committee dated February 19, 1996.
17 Fla. R. Crim. P. 3.220(b)(1)(A)(i).
18 Fla. R. Crim. P. 3.220(b)(1)(A)(iii).
19 Fla. R. Crim. P. 3.220(b)(1)(A)(ii).
20 Fla. R. Crim. P. 3.220(h)(1)(A).
21 Fla. R. Crim. P. 3.220(h)(1)(B).
22 Fla. R. Crim. P. 3.220(h)(1)(C).
23 Wardius, 412 U.S. at 474.
24 Id. at 475.
25 Id. at 475.
26 Fla. R. Crim. P. 3.140.
27 Fla. R. Crim. P. 3.140(a)(1).

Howard Dimmig graduated with honors from the Florida State University College of Law in 1977. He is an assistant with the Office of the Public Defender, 10th Judicial Circuit, Bartow, where he is currently assigned to the capital trial division. He is a member of the Bar’s Criminal Procedure Rules Committee.

This column is submitted on behalf of the Criminal Law Section, Judge Claire K. Luten, chair, and Randy Merrill, editor.

Criminal Law