How to Survive Your Criminal Case in Florida
(part 6 of a 9 part series)
By: Carlton “Duke” Fagan, Esq.
101 Century 21 Drive
Jacksonville, Florida 32216
(904) 733-1234 – Telephone
After Arraignment, Pre-Trial Hearings and Motion Hearings are the next court events in your case. In Florida, the Rules of Criminal Procedure allow the court to set pre-trial hearings as necessary so as to be updated on the progress of the case, set hearing dates for motions that have been filed by your lawyer or by the State, and finally, to set a date for jury selection and trial. The number of pre-trial hearings in your case will depend on the nature of your case and the progress of the discovery process.”
Discovery and Investigation of Your Case
Florida law is unique from almost all other states in that it provides for a process of formal “Discovery” between the State and the Defendant. Formal Discovery is the exchange of information about the case between the State and the Defendant that is provided for in the Florida Rules of Criminal Procedure. Participation in Formal Discovery DOES NOT waive lawyer/client privilege or the Fifth Amendment rights of a Defendant.
One of the benefits of Formal Discovery is that it gives the Defendant the right to take depositions in a felony case. A deposition is a formal proceeding where a lawyer brings in a witness, usually by subpoena, to sit down in front a court reporter and answer questions under oath. A skilled lawyer can gain valuable information from deposition testimony that may help his client. It is very important that your lawyer is skilled in planning, preparing for, and taking depositions. Absent some very exceptional circumstances, he will only get one opportunity to depose each witness. The formal discovery process also provides your lawyer an opportunity to obtain documents and tests results, and to inspect, photograph, and test tangible objects such as, clothing, weapons and other personal items. Effective use of formal discovery is critical to the outcome of your case.
Informal Discovery is the investigation of the case that is performed by the defense lawyer on behalf of the Defendant outside of the methods provided for by the Florida Rules of Criminal Procedure. This investigation is of the utmost importance to your defense because in most cases your lawyer cannot obtain all the information he needs to defend you from the formal discovery process alone. In fact, it is so important the United States Supreme Court, in a case named Strickland v. Washington, held that “In other words, counsel has a duty to make reasonable investigations or a reasonable decision that makes particular investigations unnecessary”.
In our experience, we often find key pieces of evidence as a result of our own investigation. The success of your defense often turns on the results of your lawyer’s investigation, accordingly, it is vital that your lawyer be creative and skilled in this area of practice.
Be sure to ask your lawyer to copy you on all information he receives through the formal discovery process as this information is already known to the State. You may want to save for face-to-face discussion only, the results your lawyer obtains from his own investigation.