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 toFlorida 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 make a request for 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 make content with the State Attorney’s Office in an attempt to gather more information or discovery. If the State still fails to provide necessary discovery, the following two tools are available to defense counsel:
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 attempted to obtain a DUI video from the arresting agency and has been 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 or not they will grant the defenses Motion to Compel. A motion to Compel can be granted in whole or in part. It can also be denied it what defense counsel is asking for is not at all 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 is alleging that the accused stole an item, but failed to disclose what the item or the location from which it was stolen.
In this Motion, the defense to states the requested information sought. The information is usually necessary in order to prepare a defense for the accused.
Upon filing a Motion for Statement of Particulars, a hearing is set. During the hearing, the judge will determines whether or not they will grant the defenses Motion for Statement of Particulars.
A Motion to Compel and Motion for Statement of Particulars are very powerful tools. They allow a defense attorney the ability to gather needed information to determine what the best strategy for an accused’s case is. Often times, these motions have an effect even before they are heard by a judge. The state may agree to resolve the issue and provide the requested discovery lieu of defense counsel moving forward on the motion.
Regardless of whether the Motions are resolved prior to or after the hearing, the ultimate goal is generally reached and defense counsel has gathered the information they need.