RULE 3.220. DISCOVERY

(a) Notice of Discovery. After the filing of the charging
document, a defendant may elect to participate in the discovery
process provided by these rules, including the taking of discovery
depositions, by filing with the court and serving on the prosecuting
attorney a “Notice of Discovery” which binds both the prosecution
and defendant to all discovery procedures contained in these rules.
Participation by a defendant in the discovery process, including the
taking of any deposition by a defendant or the filing of a public
records request under chapter 119, Florida Statutes, for law
enforcement records relating to the defendant’s pending
prosecution, which are nonexempt as a result of a codefendant’s
participation in discovery, is an election to participate in discovery
and triggers a reciprocal discovery obligation for the defendant. If
any defendant knowingly or purposely shares in discovery obtained
by a codefendant, the defendant is deemed to have elected to
participate in discovery.
(b) Prosecutor’s Discovery Obligation.

(1) Within 15 days after service of the Notice of
Discovery, the prosecutor must serve a written Discovery Exhibit
which must 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,
constitutes generated child pornography, 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 must be clearly designated in the following categories:

(i) Category A. These witnesses must
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 must 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, (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) Category B. All witnesses not listed in
either Category A or Category C.

(iii) Category C. All witnesses who performed
only ministerial functions or whom the prosecutor does not intend
to call at trial and whose involvement with and knowledge of the
case is fully set out in a police report or other statement furnished
to the defense;

(B) the statement of any person whose name is
furnished in compliance with the preceding subdivision. The term
“statement” as used herein includes a written statement made by
the person and signed or otherwise adopted or approved by the
person and also includes any statement of any kind or manner
made by the person and written or recorded or summarized in any
writing or recording. The term “statement” is specifically intended to
include all police and investigative reports of any kind prepared for
or in connection with the case, but must not include the notes from
which those reports are compiled;

(C) any written or recorded statements and the
substance of any oral statements made by the defendant, including
a copy of any statements contained in police reports or report
summaries, together with the name and address of each witness to
the statements;

(D) any written or recorded statements and the
substance of any oral statements made by a codefendant;

(E) those portions of recorded grand jury minutes
that contain testimony of the defendant;

(F) any tangible papers or objects that were
obtained from or belonged to the defendant;

(G) whether the state has any material or
information that has been provided by a confidential informant;

(H) whether there has been any electronic
surveillance, including wiretapping, of the premises of the
defendant or of conversations to which the defendant was a party
and any documents relating thereto;

(I) whether there has been any search or seizure
and any documents relating thereto;
(J) reports or statements of experts made in
connection with the particular case, including results of physical or
mental examinations and of scientific tests, experiments, or
comparisons;

(K) any tangible papers or objects that the
prosecuting attorney intends to use in the hearing or trial and that
were not obtained from or that did not belong to the defendant;

(L) any tangible paper, objects, or substances in
the possession of law enforcement that could be tested for DNA;
and

(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’s prior history of
cooperation, in return for any benefit, as known to the prosecutor.

(2) If the court determines, in camera, that any police
or investigative report contains irrelevant, sensitive information or
information interrelated with other crimes or criminal activities and
the disclosure of the contents of the police report may seriously
impair law enforcement or jeopardize the investigation of those
other crimes or activities, the court may prohibit or partially restrict
the disclosure.

(3) The court may prohibit the state from introducing
into evidence any of the foregoing material not disclosed, so as to
secure and maintain fairness in the just determination of the cause.

(4) As soon as practicable after the filing of the
charging document the prosecutor must disclose to the defendant
any material information within the state’s possession or control
that tends to negate the guilt of the defendant as to any offense
charged, regardless of whether the defendant has incurred
reciprocal discovery obligations.

(c) Disclosure to Prosecution.

(1) After the filing of the charging document and
subject to constitutional limitations, the court may require a
defendant to:

(A) appear in a lineup;

(B) speak for identification by witnesses to an
offense;

(C) be fingerprinted;

(D) pose for photographs not involving re-
enactment of a scene;

(E) try on articles of clothing;

(F) permit the taking of specimens of material
under the defendant’s fingernails;

(G) permit the taking of samples of the defendant’s
blood, hair, and other materials of the defendant’s body that
involves no unreasonable intrusion thereof;

(H) provide specimens of the defendant’s
handwriting; and
(I) submit to a reasonable physical or medical
inspection of the defendant’s body.

(2) If the personal appearance of a defendant is
required for the foregoing purposes, reasonable notice of the time
and location of the appearance must be given by the prosecuting
attorney to the defendant and his or her counsel. Provisions may be
made for appearances for such purposes in an order admitting a
defendant to bail or providing for pretrial release.

(d) Defendant’s Obligation.

(1) If a defendant elects to participate in discovery,
either through filing the appropriate notice or by participating in
any discovery process, including the taking of a discovery
deposition, the following disclosures must be made:

(A) Within 15 days after receipt by the defendant
of the Discovery Exhibit furnished by the prosecutor under
subdivision (b)(1)(A) of this rule, the defendant must furnish to the
prosecutor a written list of the names and addresses of all
witnesses whom the defendant expects to call as witnesses at the
trial or hearing. When the prosecutor subpoenas a witness whose
name has been furnished by the defendant, except for trial
subpoenas, the rules applicable to the taking of depositions apply.

(B) Within 15 days after receipt of the prosecutor’s
Discovery Exhibit the defendant must serve a written Discovery
Exhibit which must disclose to and permit the prosecutor to
inspect, copy, test, and photograph the following information and
material that is in the defendant’s possession or control:

(i) the statement of any person listed in
subdivision (d)(1)(A), other than that of the defendant;

(ii) reports or statements of experts, that the
defendant intends to use as a witness at a trial or hearing, made in
connection with the particular case, including results of physical or
mental examinations and of scientific tests, experiments, or
comparisons; and
(iii) any tangible papers or objects that the
defendant intends to use in the hearing or trial.

(2) The prosecutor and the defendant must perform
their obligations under this rule in a manner mutually agreeable or
as ordered by the court.

(3) The filing of a motion for protective order by the
prosecutor will automatically stay the times provided for in this
subdivision. If a protective order is granted, the defendant may,
within 2 days thereafter, or at any time before the prosecutor
furnishes the information or material that is the subject of the
motion for protective order, withdraw the defendant’s notice of
discovery and not be required to furnish reciprocal discovery.

(e) Restricting Disclosure. The court on its own initiative or
on motion of counsel must deny or partially restrict disclosures
authorized by this rule if it finds there is a substantial risk to any
person of physical harm, intimidation, bribery, economic reprisals,
or unnecessary annoyance or embarrassment resulting from the
disclosure, that outweighs any usefulness of the disclosure to either
party.

(f) Additional Discovery. On a showing of materiality, the
court may require such other discovery to the parties as justice may
require.

(g) Matters Not Subject to Disclosure.

(1) Work Product. Disclosure must not be required of
legal research or of records, correspondence, reports, or
memoranda to the extent that they contain the opinions, theories,
or conclusions of the prosecuting or defense attorney or members of
their legal staffs.

(2) Informants. Disclosure of a confidential informant
must not be required unless the confidential informant is to be
produced at a hearing or trial or a failure to disclose the informant’s
identity will infringe the constitutional rights of the defendant.
(h) Discovery Depositions.

(1) Generally. At any time after the filing of the charging
document any party may take the deposition on oral examination of
any person authorized by this rule. A party taking a deposition
must give reasonable written notice to each other party and must
make a good faith effort to coordinate the date, time, and location of
the deposition to accommodate the schedules of other parties and
the witness to be deposed. The notice must state the time and the
location where the deposition is to be taken, the name of each
person to be examined, and a certificate of counsel that a good faith
effort was made to coordinate the deposition schedule. Unless a
provision of this rule conflicts with the Florida Rules of Civil
Procedure, the procedure for taking the deposition, including the
scope of the examination, and the issuance of a subpoena for
deposition by an attorney of record in the action, is the same as
that provided in the Florida Rules of Civil Procedure and section
48.031, Florida Statutes. To protect deponents and the rights of the
parties and to ensure compliance with statutes, the court may enter
orders, including but not limited to the orders allowed by rule
3.220(e) and (l), on motion of a party, the deponent, or on its own
motion, for good cause shown. Any deposition taken under this rule
may be used by any party for the purpose of contradicting or
impeaching the testimony of the deponent as a witness. The trial
court or the clerk of the court may, upon application by a pro se
litigant or the attorney for any party, issue subpoenas for the
persons whose depositions are to be taken. In any case, including
multiple defendants or consolidated cases, no person may be
deposed more than once except by consent of the parties or by
order of the court issued on good cause shown. A witness who
refuses to obey a duly served subpoena may be adjudged in
contempt of the court from which the subpoena issued.

(A) The defendant may, without leave of court,
take the deposition of any witness listed by the prosecutor as a
Category A witness or listed by a co-defendant as a witness to be
called at a joint trial or hearing. After receipt by the defendant of
the Discovery Exhibit, the defendant may, without leave of court,
take the deposition of any unlisted witness who may have
information relevant to the offense charged. The prosecutor may,
without leave of court, take the deposition of any witness listed by
the defendant to be called at a trial or hearing.

(B) No party may take the deposition of a witness
listed by the prosecutor as a Category B witness except upon leave
of court with good cause shown. In determining whether to allow a
deposition, the court should consider the consequences to the
defendant, the complexities of the issues involved, the complexity of
the testimony of the witness (e.g., experts), and the other
opportunities available to the defendant to discover the information
sought by deposition.

(C) A witness listed by the prosecutor as a
Category C witness is not subject to deposition unless the court
determines that the witness should be listed in another category.

(D) No deposition may be taken in a case in which
the defendant is charged only with a misdemeanor or a criminal
traffic offense when all other discovery provided by this rule has
been complied with unless good cause can be shown to the trial
court. In determining whether to allow a deposition, the court
should consider the consequences to the defendant, the complexity
of the issues involved, the complexity of the witness’s testimony
(e.g., experts), and the other opportunities available to the
defendant to discover the information sought by deposition.
However, this prohibition against the taking of depositions does not
apply if following the furnishing of discovery by the defendant the
state then takes the statement of a listed defense witness under
section 27.04, Florida Statutes.

(2) Transcripts. No transcript of a deposition for which
the state may be obligated to expend funds may be ordered by a
party unless it is in compliance with general law.

(3) Location of Deposition. Unless the deposition will be
taken by communication technology, depositions of witnesses
residing:
(A) in the county in which the trial is to take place
must be taken in the building in which the trial will be held, such
other location as is agreed on by the parties, or a location
designated by the court; or

(B) outside the county in which the trial is to take
place must be taken in a court reporter’s office in the county or
state in which the witness resides, such other location as is agreed
on by the parties, or a location designated by the court.

(4) Visual Recording and Photographs. For deponents
18 years of age or older, a discovery deposition must not be visually
recorded unless ordered by the court for good cause shown or upon
the consent of the parties and the deponent. For deponents less
than 18 years of age, a discovery deposition must be audio-visually
recorded unless otherwise ordered by the court. No deponent may
be photographed during a discovery deposition.

(5) Depositions of Law Enforcement Officers. Subject to
the general provisions of subdivision (h)(1), law enforcement officers
must appear for deposition, without subpoena, on written notice of
taking deposition delivered at the physical address of the law
enforcement agency or department, or an e-mail or other address
designated by the law enforcement agency or department, 5 days
before the date of the deposition. Any physical address or e-mail
address designated by a law enforcement agency or department for
service of notice of deposition must be provided by the prosecuting
attorney with discovery. Law enforcement officers who fail to appear
for deposition after being served notice as required by the rule may
be adjudged in contempt of court.

(6) Witness Coordinating Office/Notice of Taking
Deposition. If a witness coordinating office has been established in
the jurisdiction under applicable Florida Statutes, the deposition of
any witness should be coordinated through that office. The witness
coordinating office should attempt to schedule the depositions of a
witness at a time and location convenient for the witness and
acceptable to the parties.
(7) Defendant’s Physical Presence. A defendant may not
be physically present at a deposition except on stipulation of the
parties or as provided by this rule. The court may order the physical
presence of the defendant on a showing of good cause. The court
may consider:

(A) the need for the physical presence of the
defendant to obtain effective discovery;

(B) the intimidating effect of the defendant’s
presence on the witness, if any;

(C) any cost or inconvenience which may result;
and

(D) any alternative communication technology
available.

(8) Telephonic Statements. On stipulation of the parties
and the consent of the witness, the statement of any witness may
be taken by telephone in lieu of the deposition of the witness. In
such case, the witness need not be under oath. The statement,
however, must be recorded and may be used for impeachment at
trial as a prior inconsistent statement under the Florida Evidence
Code.

(i) Investigations Not to Be Impeded. Except as is
otherwise provided as to matters not subject to disclosure or
restricted by protective orders, neither the counsel for the parties
nor other prosecution or defense personnel may advise persons
having relevant material or information, except the defendant, to
refrain from discussing the case with opposing counsel or showing
opposing counsel any relevant material, nor may they otherwise
impede opposing counsel’s investigation of the case.

(j) Continuing Duty to Disclose. If, subsequent to
compliance with the rules, a party discovers additional witnesses or
material that the party would have been under a duty to disclose or
produce at the time of the previous compliance, the party must
promptly disclose or produce the witnesses or material in the same
manner as required under these rules for initial discovery. This
duty includes any additional recorded or unrecorded statements of
any person disclosed under subdivisions (b)(1)(A) or (d)(1)(A) of this
rule that materially alter a written or recorded statement previously
provided under these rules.

(k) Court May Alter Times. The court may alter the times
for compliance with any discovery under these rules on good cause
shown.

(l) Protective Orders.

(1) Motion to Restrict Disclosure of Matters. On a
showing of good cause, the court must at any time order that
specified disclosures be restricted, deferred, or exempted from
discovery, that certain matters not be inquired into, that the scope
of the deposition be limited to certain matters, that a deposition be
sealed and after being sealed be opened only by order of the court,
or make such other order as is appropriate to protect a witness
from harassment, unnecessary inconvenience, or invasion of
privacy, including prohibiting the taking of a deposition. All
material and information to which a party is entitled, however,
must be disclosed in time to permit the party to make beneficial use
of it.

(2) Motion to Terminate or Limit Examination. At any
time during the taking of a deposition, on motion of a party or of the
deponent, and on a showing that the examination is being
conducted in bad faith or in such manner as to unreasonably
annoy, embarrass, or oppress the deponent or party, the court in
which the action is pending or the circuit court where the
deposition is being taken may:

(A) terminate the deposition;

(B) limit the scope and manner of the taking of the
deposition;

(C) limit the time of the deposition;
(D) continue the deposition to a later time;

(E) order the deposition to be taken in open court;
and

(F) impose any sanction authorized by this rule.

If the order terminates the deposition, it may be resumed
thereafter only on the order of the court in which the action is
pending. On demand of any party or deponent, the taking of the
deposition must be suspended for the time necessary to make a
motion for an order.

(m) In Camera and Ex Parte Proceedings.

(1) Any person may move for an order denying or
regulating disclosure of sensitive matters. The court may consider
the matters contained in the motion in camera.

(2) On request, the court must allow the defendant to
make an ex parte showing of good cause for taking the deposition of
a Category B witness.

(3) A record must be made of proceedings authorized
under this subdivision. If the court enters an order granting relief
after an in camera inspection or ex parte showing, the entire record
of the proceeding must be sealed and preserved and be made
available to the appellate court in the event of an appeal.

(n) Sanctions.

(1) If, at any time during the course of the proceedings,
it is brought to the attention of the court that a party has failed to
comply with an applicable discovery rule or with an order issued
under an applicable discovery rule, the court may order the party to
comply with the discovery or inspection of materials not previously
disclosed or produced, grant a continuance, grant a mistrial,
prohibit the party from calling a witness not disclosed or
introducing in evidence the material not disclosed, or enter such
other order as it deems just under the circumstances.
(2) Willful violation by counsel or a party not
represented by counsel of an applicable discovery rule, or an order
issued under an applicable discovery rules, subjects counsel or the
unrepresented party to appropriate sanctions by the court. The
sanctions may include, but are not limited to, contempt proceedings
against the attorney or unrepresented party, as well as the
assessment of costs incurred by the opposing party, when
appropriate.

(3) Every request for discovery or response or objection,
including a notice of deposition made by a party represented by an
attorney, must be signed by at least 1 attorney of record, as defined
by Florida Rule of General Practice and Judicial Administration
2.505, in the attorney’s individual name, whose address must be
stated. A party who is not represented by an attorney must sign the
request, response, or objection and list his or her address. The
signature of the attorney constitutes a certification that the
document complies with Florida Rule of General Practice and
Judicial Administration 2.515. The signature of the attorney or
party constitutes a certification that the signer has read the
request, response, or objection and that to the best of the signer’s
knowledge, information, or belief formed after a reasonable inquiry
it is:

(A) consistent with these rules and warranted by
existing law or a good faith argument for the extension,
modification, or reversal of existing law;

(B) not interposed for any improper purpose, such
as to harass or to cause unnecessary delay or needless increase in
the cost of litigation; and

(C) not unreasonable or unduly burdensome or
expensive, given the needs of the case and the importance of the
issues at stake in the litigation.

If a request, response, or objection is not signed, it must be
stricken unless it is signed promptly after the omission is called to
the attention of the party making the request, response, or
objection, and a party may not be obligated to take any action with
respect to it until it is signed.

If a certification is made in violation of this rule, the court, on
motion or on its own initiative, must impose on the person who
made the certification, the firm or agency with which the person is
affiliated, the party on whose behalf the request, response, or
objection is made, or any or all of the above an appropriate
sanction, which may include an order to pay the amount of the
reasonable expenses incurred because of the violation, including a
reasonable attorney’s fee.

(o) Pretrial Conference.

(1) The trial court may hold 1 or more pretrial
conferences to consider such matters as will promote a fair and
expeditious trial. The defendant must be present at any pretrial
conference, unless the defendant’s presence is waived in writing or
on the record by the defendant or by the defendant’s counsel with
the defendant’s consent.

(2) The court may set, and on the request of any party
must set, a discovery schedule, including a discovery cut-off date,
at the pretrial conference.

Committee Notes

1968 Adoption.

(a)(1) This is substantially the same as section 925.05, Florida
Statutes.

(a)(2) This is new and allows a defendant rights which he did
not have, but must be considered in light of subdivision (c).

(a)(3) This is a slight enlargement upon the present practice;
however, from a practical standpoint, it is not an enlargement, but
merely a codification of section 925.05, Florida Statutes, with
respect to the defendant’s testimony before a grand jury.
(b) This is a restatement of section 925.04, Florida Statutes,
except for the change of the word “may” to “shall.”

(c) This is new and affords discovery to the state within the
trial judge’s discretion by allowing the trial judge to make discovery
under (a)(2) and (b) conditioned upon the defendant giving the state
some information if the defendant has it. This affords the state
some area of discovery which it did not previously have with respect
to (b). A question was raised concerning the effect of (a)(2) on FBI
reports and other reports which are submitted to a prosecutor as
“confidential” but it was agreed that the interests of justice would
be better served by allowing this rule and that, after the appropriate
governmental authorities are made aware of the fact that their
reports may be subject to compulsory disclosure, no harm to the
state will be done.

(d) and (e) This gives the defendant optional procedures. (d) is
simply a codification of section 906.29, Florida Statutes, except for
the addition of “addresses.” The defendant is allowed this procedure
in any event. (e) affords the defendant the additional practice of
obtaining all of the state’s witnesses, as distinguished from merely
those on whose evidence the information, or indictment, is based,
but only if the defendant is willing to give the state a list of all
defense witnesses, which must be done to take advantage of this
rule. The confidential informant who is to be used as a witness
must be disclosed; but it was expressly viewed that this should not
otherwise overrule present case law on the subject of disclosure of
confidential informants, either where disclosure is required or not
required.

(f) This is new and is a compromise between the philosophy
that the defendant should be allowed unlimited discovery
depositions and the philosophy that the defendant should not be
allowed any discovery depositions at all. The purpose of the rule is
to afford the defendant relief from situations when witnesses refuse
to “cooperate” by making pretrial disclosures to the defense. It was
determined to be necessary that the written signed statement be a
criterion because this is the only way witnesses can be impeached
by prior contradictory statements. The word “cooperate” was
intentionally left in the rule, although the word is a loose one, so
that it can be given a liberal interpretation, i.e., a witness may claim
to be available and yet never actually submit to an interview. Some
express the view that the defendant is not being afforded adequate
protection because the cooperating witness will not have been
under oath, but the subcommittee felt that the only alternative
would be to make unlimited discovery depositions available to the
defendant which was a view not approved by a majority of the
subcommittee. Each minority is expressed by the following
alternative proposals:

Alternative Proposal (1): When a person is charged with an
offense, at any time after the filing of the indictment, information, or
affidavit upon which the defendant is to be tried, such person may
take the deposition of any person by deposition upon oral
examination for the purpose of discovery. The attendance of
witnesses may be compelled by the use of subpoenas as provided by
law. The deposition of a person confined in prison may be taken
only by leave of court on such terms as the court prescribes. The
scope of examination and the manner and method of taking such
deposition shall be as provided in the Florida Rules of Civil
Procedure and the deposition may be used for the purpose of
contradicting or impeaching the testimony of a deponent as a
witness.

Alternative Proposal (2): If a defendant signs and files a written
waiver of his or her privilege against self-incrimination and submits
to interrogation under oath by the prosecuting attorney, then the
defendant shall be entitled to compulsory process for any or all
witnesses to enable the defendant to interrogate them under oath,
before trial, for discovery purposes.

A view was expressed that some limitation should be placed on
the state’s rights under sections 27.04 and 32.20, Florida Statutes,
which allow the prosecutor to take all depositions unilaterally at
any time. It was agreed by all members of the subcommittee that
this right should not be curtailed until some specific time after the
filing of an indictment, information, or affidavit, because
circumstances sometimes require the filing of the charge and a
studied marshalling of evidence thereafter. Criticism of the present
practice lies in the fact that any time up to and during the course of
the trial the prosecutor can subpoena any person to the privacy of
the prosecutor’s office without notice to the defense and there take
a statement of such person under oath. The subcommittee was
divided, however, on the method of altering this situation and the
end result was that this subcommittee itself should not undertake
to change the existing practice, but should make the Supreme
Court aware of this apparent imbalance.

(g) This is new and is required in order to make effective the
preceding rules.

(h) This is new and, although it encompasses relief for both
the state and the defense, its primary purpose is to afford relief in
situations when witnesses may be intimidated and a prosecuting
attorney’s heavy docket might not allow compliance with discovery
within the time limitations set forth in the rules. The words,
“sufficient showing” were intentionally included in order to permit
the trial judge to have discretion in granting the protective relief. It
would be impossible to specify all possible grounds which can be
the basis of a protective order. This verbiage also permits a possible
abuse by a prosecution-minded trial judge, but the subcommittee
felt that the appellate court would remedy any such abuse in the
course of making appellate decisions.

(i) This is new and, although it will entail additional expense
to counties, it was determined that it was necessary in order to
comply with the recent trend of federal decisions which hold that
due process is violated when a person who has the money with
which to resist criminal prosecution gains an advantage over the
person who is not so endowed. Actually, there is serious doubt that
the intent of this subdivision can be accomplished by a rule of
procedure; a statute is needed. It is recognized that such a statute
may be unpopular with the legislature and not enacted. But, if this
subdivision has not given effect there is a likelihood that a
constitutional infirmity (equal protection of the law) will be found
and either the entire rule with all subdivisions will be held void or
confusion in application will result.

(j) This provision is necessary since the prosecutor is
required to assume many responsibilities under the various
subdivisions under the rule. There are no prosecuting attorneys,
either elected or regularly assigned, in justice of the peace courts.
County judge’s courts, as distinguished from county courts, do not
have elected prosecutors. Prosecuting attorneys in such courts are
employed by county commissions and may be handicapped in
meeting the requirements of the rule due to the irregularity and
uncertainty of such employment. This subdivision is inserted as a
method of achieving as much uniformity as possible in all of the
courts of Florida having jurisdictions to try criminal cases.

1972 Amendment. The committee studied the ABA Standards
for Criminal Justice relating to discovery and procedure before trial.
Some of the standards are incorporated in the committee’s
proposal, others are not. Generally, the standards are divided into 5
parts:

Part I deals with policy and philosophy and, while the
committee approves the substance of Part I, it was determined that
specific rules setting out this policy and philosophy should not be
proposed.

Part II provides for automatic disclosures (avoiding judicial
labor) by the prosecutor to the defense of almost everything within
the prosecutor’s knowledge, except for work product and the
identity of confidential informants. The committee adopted much of
Part II, but felt that the disclosure should not be automatic in every
case; the disclosure should be made only after request or demand
and within certain time limitations. The ABA Standards do not
recommend reciprocity of discovery, but the committee deemed that
a large degree of reciprocity is in order and made appropriate
recommendations.

Part III of the ABA Standards recommends some disclosure by
the defense (not reciprocal) to which the state was not previously
entitled. The committee adopted Part III and enlarged upon it.

Part IV of the Standards sets forth methods of regulation of
discovery by the court. Under the Standards the discovery
mentioned in Parts II and III would have been automatic and
without the necessity of court orders or court intervention. Part III
provides for procedures of protection of the parties and was
generally incorporated in the recommendations of the committee.

Part V of the ABA Standards deals with omnibus hearings and
pretrial conferences. The committee rejected part of the Standards
dealing with omnibus hearings because it felt that it was
superfluous under Florida procedure. The Florida committee
determined that a trial court may, at its discretion, schedule a
hearing for the purposes enumerated in the ABA Omnibus Hearing
and that a rule authorizing it is not necessary. Some of the
provisions of the ABA Omnibus Hearing were rejected by the Florida
committee, i.e., stipulations as to issues, waivers by defendant, etc.
A modified form of pretrial conference was provided in the proposals
by the Florida committee.

(a)(1)(i) Same as ABA Standard 2.1(a)(i) and substance of
Standard 2.1(e). Formerly Florida Rule of Criminal Procedure
3.220(e) authorized exchange of witness lists. When considered with
proposal 3.220(a)(3), it is seen that the proposal represents no
significant change.

(ii) This rule is a modification of Standard 2.1(a)(ii) and is
new in Florida, although some such statements might have been
discoverable under rule 3.220(f). Definition of “statement” is derived
from 18 U.S.C. § 3500.

Requiring law enforcement officers to include irrelevant or
sensitive material in their disclosures to the defense would not
serve justice. Many investigations overlap and information
developed as a byproduct of one investigation may form the basis
and starting point for a new and entirely separate one. Also, the
disclosure of any information obtained from computerized records
of the Florida Crime Information Center and the National Crime
Information Center should be subject to the regulations prescribing
the confidentiality of such information so as to safeguard the right
of the innocent to privacy.

(iii) Same as Standard 2.1(a)(ii) relating to statements of
accused; words “known to the prosecutor, together with the name
and address of each witness to the statement” added and is new in
Florida.

(iv) From Standard 2.1(a)(ii). New in Florida.

(v) From Standard 2.1(a)(iii) except for addition of words,
“that have been recorded” which were inserted to avoid any
inference that the proposed rule makes recording of grand jury
testimony mandatory. This discovery was formerly available under
rule 3.220(a)(3).

(vi) From Standard 2.1(a)(v). Words, “books, papers,
documents, photographs” were condensed to “papers or objects”
without intending to change their meaning. This was previously
available under rule 3.220(b).

(vii) From Standard 2.1(b)(i) except word “confidential” was
added to clarify meaning. This is new in this form.

(viii) From Standard 2.1(b)(iii) and is new in Florida in this
form. Previously this was disclosed upon motion and order.

(ix) From Standard 2.3(a), but also requiring production of
“documents relating thereto” such as search warrants and
affidavits. Previously this was disclosed upon motion and order.

(x) From Standard 2.1(a)(iv). Previously available under rule
3.220(a)(2). Defendant must reciprocate under proposed rule
3.220(b)(4).

(xi) Same committee note as (b) under this subdivision.

(2) From Standard 2.1(c) except omission of words “or would
tend to reduce his punishment therefore” which should be included
in sentencing.

(3) Based upon Standard 2.2(a) and (b) except Standards
required prosecutor to furnish voluntarily and without demand
while this proposal requires defendant to make demand and
permits prosecutor 15 days in which to respond.
(4) From Standards 2.5(b) and 4.4. Substance of this
proposal previously available under rule 3.220(h).

(5) From Standard 2.5. New in Florida.

(b)(1) From Standard 3.1(a). New in Florida.

(2) From Standard 3.1(b). New in Florida.

(3) Standards did not recommend that defendant furnish
prosecution with reciprocal witness list; however, formerly, rule
3.220(e) did make such provision. The committee recommended
continuation of reciprocity.

(4) Standards did not recommend reciprocity of discovery.
Previously, Florida rules required some reciprocity. The committee
recommended continuation of former reciprocity and addition of
exchanging witness’ statement other than defendants’.

(c) From Standard 2.6. New in Florida, but generally
recognized in decisions.

(d) Not recommended by Standards. Previously permitted
under rule 3.220(f) except for change limiting the place of taking the
deposition and eliminating requirement that witness refuse to give
voluntary signed statement.

(e) From Standard 4.1. New in Florida.

(f) Same as rule 3.220(g).

(g) From Standard 4.4 and rule 3.220(h).

(h) From Standard 4.4 and rule 3.220(h).

(i) From Standard 4.6. Not previously covered by rule in
Florida, but permitted by decisions.

(j)(1) From Standard 4.7(a). New in Florida except court
discretion permitted by rule 3.220(g).

(2) From Standard 4.7(b). New in Florida.
(k) Same as prior rule.

(l) Modified Standard 5.4. New in Florida.

1977 Amendment. The proposed change only removes the
comma which currently appears after (a)(1).

1980 Amendment. The intent of the rule change is to
guarantee that the accused will receive those portions of police
reports or report summaries which contain any written, recorded,
or oral statements made by the accused.

1986 Amendment. The showing of good cause under (d)(2) of
this rule may be presented ex parte or in camera to the court.

1989 Amendment. 3.220(a). The purpose of this change is to
ensure reciprocity of discovery. Under the previous rule, the
defendant could tailor discovery, demanding only certain items of
discovery with no requirement to reciprocate items other than those
demanded. A defendant could avoid reciprocal discovery by taking
depositions, thereby learning of witnesses through the deposition
process, and then deposing those witnesses without filing a demand
for discovery. With this change, once a defendant opts to use any
discovery device, the defendant is required to produce all items
designated under the discovery rule, whether or not the defendant
has specifically requested production of those items.

Former subdivision (c) is relettered (b). Under (b)(1) the
prosecutor’s obligation to furnish a witness list is conditioned upon
the defendant filing a “Notice of Discovery.”

Former subdivision (a)(1)(i) is renumbered (b)(1)(i) and, as
amended, limits the ability of the defense to take depositions of
those persons designated by the prosecutor as witnesses who
should not be deposed because of their tangential relationship to
the case. This does not preclude the defense attorney or a defense
investigator from interviewing any witness, including a police
witness, about the witness’s knowledge of the case.

This change is intended to meet a primary complaint of law
enforcement agencies that depositions are frequently taken of
persons who have no knowledge of the events leading to the charge,
but whose names are disclosed on the witness list. Examples of
these persons are transport officers, evidence technicians, etc.

In order to permit the defense to evaluate the potential
testimony of those individuals designated by the prosecutor, their
testimony must be fully set forth in some document, generally a
police report.

(a)(1)(ii) is renumbered (b)(1)(ii). This subdivision is amended to
require full production of all police incident and investigative
reports, of any kind, that are discoverable, provided there is no
independent reason for restricting their disclosure. The term
“statement” is intended to include summaries of statements of
witnesses made by investigating officers as well as statements
adopted by the witnesses themselves.

The protection against disclosure of sensitive information, or
information that otherwise should not be disclosed, formerly set
forth in (a)(1)(i), is retained, but transferred to subdivision (b)(1)(xii).

The prohibition sanction is not eliminated, but is transferred
to subdivision (b)(1)(xiii). “Shall” has been changed to “may” in order
to reflect the procedure for imposition of sanctions specified in
Richardson v. State, 246 So. 2d 771 (Fla. 1971).

The last phrase of renumbered subdivision (b)(2) is added to
emphasize that constitutionally required Brady material must be
produced regardless of the defendant’s election to participate in the
discovery process.

Former subdivision (b) is relettered (c).

Former subdivisions (b)(3) and (4) are now included in new
subdivision (d). An introductory phrase has been added to
subdivision (d). Subdivision (d) reflects the change in nomenclature
from a “Demand for Discovery” to the filing of a “Notice of
Discovery.”

As used in subdivision (d), the word “defendant” is intended to
refer to the party rather than to the person. Any obligations
incurred by the “defendant” are incurred by the defendant’s
attorney if the defendant is represented by counsel and by the
defendant personally if the defendant is not represented.

The right of the defendant to be present and to examine
witnesses, set forth in renumbered subdivision (d)(1), refers to the
right of the defense, as party to the action. The term refers to the
attorney for the defendant if the defendant is represented by
counsel. The right of the defendant to be physically present at the
deposition is controlled by new subdivision (h)(6).

Renumbered subdivision (d)(2), as amended, reflects the new
notice of discovery procedure. If the defendant elects to participate
in discovery, the defendant is obligated to furnish full reciprocal
disclosure.

Subdivision (e) was previously numbered (a)(4). This
subdivision has been modified to permit the remedy to be sought by
either prosecution or defense.

Subdivision (f) was previously numbered (a)(5) and has been
modified to permit the prosecutor, as well as the defense attorney,
to seek additional discovery.

Former subdivision (c) is relettered (g).

Former subdivision (d) is relettered (h). Renumbered
subdivision (h)(1) has been amended to reflect the restrictions on
deposing a witness designated by the prosecution under (b)(1)(i)
(designation of a witness performing ministerial duties only or one
who will not be called at trial).

(h)(1)(i) is added to provide that a deposition of a witness
designated by the prosecutor under (b)(1)(i) may be taken only upon
good cause shown by the defendant to the court.

(h)(1)(ii) is added to provide that abuses by attorneys of the
provisions of (b)(1)(i) are subject to stringent sanctions.

New subdivision (h)(1)(iii) abolishes depositions in
misdemeanor cases except when good cause is shown.
A portion of former subdivision (d)(1) is renumbered (h)(3).
This subdivision now permits the administrative judge or chief
judge, in addition to the trial judge, to designate the place for taking
the deposition.

New subdivision (h)(4) recognizes that children and some
adults are especially vulnerable to intimidation tactics. Although it
has been shown that such tactics are infrequent, they should not
be tolerated because of the traumatic effect on the witness. The
videotaping of the deposition will enable the trial judge to control
such tactics. Provision is also made to protect witnesses of fragile
emotional strength because of their vulnerability to intimidation
tactics.

New subdivision (h)(5) emphasizes the necessity for the
establishment, in each jurisdiction, of an effective witness
coordinating office. The Florida Legislature has authorized the
establishment of such office through section 43.35, Florida
Statutes. This subdivision is intended to make depositions of
witnesses and law enforcement officers as convenient as possible
for the witnesses and with minimal disruption of law enforcement
officers’ official duties.

New subdivision (h)(6) recognizes that one of the most frequent
complaints from child protection workers and from rape victim
counselors is that the presence of the defendant intimidates the
witnesses. The trauma to the victim surpasses the benefit to the
defense of having the defendant present at the deposition. Since
there is no right, other than that given by the rules of procedure, for
a defendant to attend a deposition, the Florida Supreme Court
Commission on Criminal Discovery believes that no such right
should exist in those cases. The “defense,” of course, as a party to
the action, has a right to be present through counsel at the
deposition. In this subdivision, the word “defendant” is meant to
refer to the person of the defendant, not to the defense as a party.
See comments to rules 3.220(d) and 3.220(d)(1).

Although defendants have no right to be present at depositions
and generally there is no legitimate reason for their presence, their
presence is appropriate in certain cases. An example is a complex
white collar fraud prosecution in which the defendant must explain
the meaning of technical documents or terms. Cases requiring the
defendant’s presence are the exception rather than the rule.
Accordingly, (h)(6)(i)–(ii) preclude the presence of defendants at
depositions unless agreed to by the parties or ordered by the court.
These subdivisions set forth factors that a court should take into
account in considering motions to allow a defendant’s presence.

New subdivision (h)(7) permits the defense to obtain needed
factual information from law enforcement officers by informal
telephone deposition. Recognizing that the formal deposition of a
law enforcement officer is often unnecessary, this procedure will
permit such discovery at a significant reduction of costs.

Former subdivisions (e), (f), and (g) are relettered (i), (j), and
(k), respectively.

Former subdivision (h) is relettered (l) and is modified to
emphasize the use of protective orders to protect witnesses from
harassment or intimidation and to provide for limiting the scope of
the deposition as to certain matters.

Former subdivision (i) is relettered (m).

Former subdivision (j) is relettered (n).

Renumbered (n)(2) is amended to provide that sanctions are
mandatory if the court finds willful abuse of discovery. Although the
amount of sanction is discretionary, some sanction must be
imposed.

(n)(3) is new and tracks the certification provisions of federal
procedure. The very fact of signing such a certification will make
counsel cognizant of the effect of that action.

Subdivision (k) is relettered (o).

Subdivision (l) is relettered (p).

1992 Amendment. The proposed amendments change the
references to “indictment or information” in subdivisions (b)(1),
(b)(2), (c)(1), and (h)(1) to “charging document.” This amendment is
proposed in conjunction with amendments to rule 3.125 to provide
that all individuals charged with a criminal violation would be
entitled to the same discovery regardless of the nature of the
charging document (i.e., indictment, information, or notice to
appear).

1996 Amendment. This is a substantial rewording of the rule
as it pertains to depositions and pretrial case management. The
amendment was in response to allegations of discovery abuse and a
call for a more cost conscious approach to discovery by the Florida
Supreme Court. In felony cases, the rule requires prosecutors to list
witnesses in categories A, B, and C. Category A witnesses are
subject to deposition as under the former rule. Category B
witnesses are subject to deposition only upon leave of court.
Category B witnesses include, but are not limited to, witnesses
whose only connection to the case is the fact that they are the
owners of property; transporting officers; booking officers; records
and evidence custodians; and experts who have filed a report and
curriculum vitae and who will not offer opinions subject to the Frye
test. Category C witnesses may not be deposed. The trial courts are
given more responsibility to regulate discovery by pretrial
conference and by determining which category B witnesses should
be deposed in a given case.

The rule was not amended for the purpose of prohibiting
discovery. Instead, the rule recognized that many circuits now have
“early resolution” or “rocket dockets” in which “open file discovery”
is used to resolve a substantial percentage of cases at or before
arraignment. The committee encourages that procedure. If a case
cannot be resolved early, the committee believes that resolution of
typical cases will occur after the depositions of the most essential
witnesses (category A) are taken. Cases which do not resolve after
the depositions of category A, may resolve if one or more category B
witnesses are deposed. If the case is still unresolved, it is probably
going to be a case that needs to be tried. In that event, judges may
determine which additional depositions, if any, are necessary for
pretrial preparation. A method for making that determination is
provided in the rule.
Additionally, trial judges may regulate the taking of
depositions in a number of ways to both facilitate resolution of a
case and protect a witness from unnecessary inconvenience or
harassment. There is a provision for setting a discovery schedule,
including a discovery cut-off date as is common in civil practice.
Also, a specific method is provided for application for protective
orders.

One feature of the new rule relates to the deposition of law
enforcement officers. Subpoenas are no longer required.

The rule has standardized the time for serving papers relating
to discovery at fifteen days.

Discovery in misdemeanor cases has not been changed.

(b)(1)(A)(i) An investigating officer is an officer who has
directed the collection of evidence, interviewed material witnesses,
or who was assigned as the case investigator.

(h)(1) The prosecutor and defense counsel are encouraged to be
present for the depositions of essential witnesses, and judges are
encouraged to provide calendar time for the taking of depositions so
that counsel for all parties can attend. This will 1) diminish the
potential for the abuse of witnesses, 2) place the parties in a
position to timely and effectively avail themselves of the remedies
and sanctions established in this rule, 3) promote an expeditious
and timely resolution of the cause, and 4) diminish the need to
order transcripts of the deposition, thereby reducing costs.

1998 Amendment. This rule governs only the location of
depositions. The procedure for procuring out-of-state witnesses for
depositions is governed by statute.

2018 Amendment. The amendments to subdivision (j) are a
clarification of the rule based on Scipio v. State, 928 So. 2d 1138
(Fla. 2006), and Washington v. State, 151 So. 3d 544 (Fla. 1st DCA
2014).

Court Commentary
1996 Amendment. The designation of a witness who will
present similar fact evidence will be dependent upon the witness’s
relationship to the similar crime, wrong, or act about which
testimony will be given rather than the witness’s relationship to the
crime with which the defendant is currently charged.

1999/2000 Amendment. This rule does not affect requests
for nonexempt law enforcement records as provided in chapter 119,
Florida Statutes, other than those that are nonexempt as a result of
a codefendant’s participation in discovery. See Henderson v. State,
745 So. 2d 319 (Fla. Feb. 18, 1999).

2014 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 Florida Innocence
Commission recognized 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.

VII. SUBSTITUTION OF JUDGE