How A Criminal Lawyer Makes the State Play Ball: Motions to Compel
Each of our criminal defense attorneys has several tools in his or her arsenal to force the State’s Attorney to play ball in the discovery process.
Information regarding the allegations against a person accused of a crime is called discovery. Discovery includes citations, police reports, electronic surveillance, physical evidence, and more. Discovery is provided pursuant to Florida Rule of Criminal Procedure 3.220.
On most occasions, the State Attorney’s Office provides discovery to defense counsel that is sufficient. Other times, defense counsel can easily obtain needed documents and information without the assistance of the State Attorney’s Office. Perhaps there is a DUI video. Defense counsel can usually go to the arresting law enforcement agency and request the video.
However, on some occasions, the State Attorney’s Office will provide insufficient evidence to the defense. This hinders a defense attorney’s ability to examine potential defenses, prepare additional motions, and/or prepare for trial.
The first step is for defense counsel to contact the State Attorney’s Office in an attempt to gather more information or discovery. If the State still fails to provide the necessary discovery, the following two tools are available to defense attorneys.
A Motion To Compel: Asking The Judge To Force The State’s Hand
Florida Rule of Criminal Procedure 3.220 clearly outlines the duty of a prosecutor to disclose relevant discovery. It also allows the defense attorney the option of filing a Motion to Compel discovery that is missing.
A Motion to Compel should be filed when the prosecutor fails to disclose discovery that they have within their possession that they intend to use against the accused. For example, the defense attorney attempted to obtain a DUI video from the arresting agency and was unsuccessful. The prosecutor has the video but has not provided it to the defense despite a request to do so.
Upon filing a Motion to Compel, a hearing is set. During the hearing, a judge determines whether he or she will grant the defense’s Motion to Compel. A Motion to Compel can be granted in whole or in part. It can also be denied if what the defense attorney is requesting is not relevant to the case.
Motion For Statement Of Particulars: Making The State Explain The Charges More Thoroughly
Florida Rule of Criminal Procedure 3.140 allows a defense attorney to file a Motion for Statement of Particulars when the State’s allegations against the accused are unclear or vague. For example, the State alleges that the accused stole an item but failed to disclose what the item was and/or the location from which it was stolen.
In this motion, the defense attorney states the information he or she needs. The information is usually necessary to prepare a defense for the accused.
Upon filing a Motion for Statement of Particulars, a hearing is set. During the hearing, a judge will determine whether to grant the defense’s Motion for Statement of Particulars.
A Motion to Compel and a Motion for Statement of Particulars are very powerful tools. They allow a defense attorney the ability to gather the information needed to determine the best strategy for his or her client’s case. These motions often have an effect even before they are heard by a judge. The state may agree to resolve the issue and provide the requested discovery in lieu of the defense attorney moving forward with the motion.
Regardless of whether such motions are resolved before or after the hearing, the ultimate goal is generally reached, and the defense attorney now has the information that he or she needs.
