RULE 8.060. DISCOVERY

(a) Notice of Discovery.

(1) After the filing of the petition, a child may elect to
utilize the discovery process provided by these rules, including the
taking of discovery depositions, by filing with the court and serving
upon the petitioner a “notice of discovery” which shall bind both the
petitioner and the child to all discovery procedures contained in
these rules. Participation by a child in the discovery process,
including the taking of any deposition by a child, shall be an
election to participate in discovery. If any child knowingly or
purposely shares in discovery obtained by a codefendant, the child
shall be deemed to have elected to participate in discovery.

(2) Within 5 days of service of the child’s notice of
discovery, the petitioner shall serve a written discovery exhibit
which shall disclose to the child or the child’s counsel and permit
the child or the child’s counsel to inspect, copy, test, and
photograph the following information and material within the
petitioner’s possession or control:

(A) A list of the names and addresses of all
persons known to the petitioner to have information that may be
relevant to the allegations, to any defense with respect thereto, or to
any similar fact evidence to be presented at trial under section
90.402(2), Florida Statutes. The names and addresses of persons
listed shall be clearly designated in the following categories:

(i) Category A. These witnesses shall
include:

a. eye witnesses;

b. alibi witnesses and rebuttal to alibi
witnesses;

c. witnesses who were present when a
recorded or unrecorded statement was taken from or made by the
child or codefendant, which shall be separately identified within
this category;

d. investigating officers;

e. witnesses known by the petitioner to
have any material information that tends to negate the guilt of the
child as to the petition’s allegations;

f. child hearsay witnesses;
g. expert witnesses who have not
provided a written report and a curriculum vitae or who are going to
testify; and

h. informant witnesses who will offer
testimony concerning the statements of a child charged with a
delinquent act about the issues for which the child 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 petitioner does not intend to
call at the hearing 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 paragraph. The term
“statement” as used herein means a written statement made by said
person and signed or otherwise adopted by him or her and also
includes any statement of any kind or manner made by such
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 shall not include the notes from
which such reports are compiled.

(C) Any written or recorded statements and the
substance of any oral statements made by the child and known to
the petitioner, including a copy of any statements contained in
police reports or 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 if the
hearing is to be a joint one.

(E) Those portions of recorded grand jury minutes
that contain testimony of the child.
(F) Any tangible papers or objects that were
obtained from or belonged to the child.

(G) Whether the petitioner 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 child, or
of conversations to which the child was a party, and any documents
relating thereto.

(I) Whether there has been any search or seizure
and any document 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
petitioner intends to use in the hearing and that were not obtained
from or belonged to the child.

(L) 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 child about which the informant may testify;

(ii) a summary of the criminal record of the
informant witness;

(iii) a summary of the delinquency record of
the informant witness, if court ordered;

(iv) the time and place under which the
child’s alleged statement was made;
(v) whether the informant witness has
received, or expects to receive, anything in exchange for his or her
testimony; and

(vi) the informant witness’s prior history of
cooperation, in return for any benefit, as known to the state.

(3) As soon as practicable after the filing of the petition,
the petitioner shall disclose to the child any material information
within the state’s possession or control which tends to negate the
guilt of the child as to the petition’s allegations.

(4) The petitioner shall perform the foregoing
obligations in any manner mutually agreeable to the petitioner and
the child or as ordered by the court.

(5) Upon a showing of materiality to the preparation of
the defense, the court may require such other discovery to the child
as justice may require.

(b) Required Disclosure to Petitioner.

(1) If a child elects to participate in discovery, within 5
days after receipt by the child of the discovery exhibit furnished by
the petitioner under this rule, the following disclosures shall be
made:

(A) The child shall furnish to the petitioner a
written list of names and addresses of all persons whom the child
expects to call as witnesses at the hearing. When the petitioner
subpoenas a witness whose name has been furnished by the child,
except for hearing subpoenas, reasonable notice shall be given to
the child as to the time and location of examination pursuant to the
subpoena. At such examination, the child through counsel shall
have the right to be present and to examine the witness. The
physical presence of the child shall be governed by rule 8.060(d)(6).

(B) The child shall serve a written discovery
exhibit which shall disclose to the petitioner and permit the
petitioner to inspect, copy, test, and photograph the following
information and material which is in the child’s possession or
control:

(i) The statement of any person whom the
child expects to call as a trial witness other than that of the child.

(ii) 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.

(iii) Any tangible papers or objects which the
child intends to use in the hearing.

(2) The child shall perform the foregoing obligations in
any manner mutually agreeable to the child and the petitioner or as
ordered by the court.

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

(c) Limitations on Disclosure.

(1) Upon application, the court may deny or partially
restrict disclosure 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 such disclosure, which outweighs
any usefulness of the disclosure to the party requesting it.

(2) The following matters shall not be subject to
disclosure:

(A) Disclosure shall not be required of legal
research or of records, correspondence, or memoranda, to the
extent that they contain the opinion, theories, or conclusions of the
prosecuting or defense attorney or members of their legal staff.

(B) Disclosure of a confidential informant shall not
be required unless the confidential informant is to be produced at a
hearing or a failure to disclose the informant’s identity will infringe
upon the constitutional rights of the child.

(d) Depositions.

(1) Time and Location.

(A) At any time after the filing of the petition
alleging a child to be delinquent, any party may take the deposition
upon oral examination of any person authorized by this rule.

(B) Unless the deposition will be taken by
communication technology, depositions of witnesses residing:

(i) in the county in which the adjudicatory
hearing is to take place must be taken in the building in which the
adjudicatory hearing will be held, another location agreed on by the
parties, or a location designated by the court; or

(ii) outside the county in which the
adjudicatory hearing is to take place must take place in a court
reporter’s office in the county and state in which the witness
resides, another location agreed to by the parties, or a location
designated by the court.

(2) Procedure.

(A) The party taking the deposition shall give
reasonable written notice to each other party and shall 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 shall state the time and the
location of the deposition and the name of each person to be
examined, and include a certificate of counsel that a good faith
effort was made to coordinate the deposition schedule.
(B) Upon application, the court or the clerk of the
court may issue subpoenas for the persons whose depositions are
to be taken.

(C) 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
8.060(c), (j), (k), and (l), upon motion of a party, the deponent, or on
its own motion, for good cause shown.

(D) In any case, no person shall be deposed more
than once except by consent of the parties or by order of the court
issued on good cause shown.

(E) Unless a provision of this rule conflict 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 (except for a subpoena duces tecum) for
deposition by an attorney of record in the action shall be the same
as that provided in the Florida Rules of Civil Procedure.

(F) The child, without leave of court, may take the
deposition of any witness listed by the petitioner as a Category A
witness or listed by a codefendant as a witness to be called at a
joint hearing. After receipt by the child of the discovery exhibit, the
child, without leave of court, may take the deposition of any
unlisted witness who may have information relevant to the
petition’s allegations. The petitioner, without leave of court, may
take the deposition of any witness listed by the child to be called at
a hearing.

(G) No party may take the deposition of a witness
listed by the petitioner 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 child,
the complexities of the issues involved, the complexity of the
testimony of the witness (e.g., experts), and the other opportunities
available to the child to discover the information sought by
deposition.
(H) A witness listed by the petitioner as a Category
C witness shall not be subject to deposition unless the court
determines that the witness should be listed in another category.

(I) No deposition shall be taken in a case in which
a petition has been filed alleging that the child committed only 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 child,
the complexity of the issues involved, the complexity of the
witness’s testimony (e.g., experts), and the other opportunities
available to the child to discover the information sought by
deposition. However, this prohibition against the taking of
depositions shall not be applicable if following the furnishing of
discovery by the child the petitioner then takes the statement of a
listed defense witness pursuant to section 27.04, Florida Statutes.

(3) Use of Deposition. Any deposition taken pursuant to
this rule may be used at any hearing covered by these rules by any
party for the purpose of impeaching the testimony of the deponent
as a witness.

(4) Introduction of Part of Deposition. If only part of a
deposition is offered in evidence by a party, an adverse party may
require the introduction of any other part that in fairness ought to
be considered with the part introduced, and any party may
introduce any other parts.

(5) Sanctions. A witness who refuses to obey a duly
served subpoena for the taking of a deposition may be adjudged in
contempt of the court from which the subpoena issued.

(6) Physical Presence of Child. The child shall not be
physically present at a deposition except upon stipulation of the
parties or as provided by this rule.

The court may order the physical presence of the child upon a
showing of good cause. In ruling, the court may consider:
(A) the need for the physical presence of the child
to obtain effective discovery;

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

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

(D) any alternative electronic or audio-visual
means available to protect the child’s ability to participate in
discovery without the child’s physical presence.

(7) Depositions of Law Enforcement Officers. Subject to
the general provisions of this rule, law enforcement officers shall
appear for deposition, without subpoena, upon written notice of
taking deposition delivered at the address designated by the law
enforcement agency or department or, if no address has been
designated, to the address of the law enforcement agency or
department, 5 days prior to the date of the deposition. Law
enforcement officers who fail to appear for deposition after being
served notice are subject to contempt proceedings.

(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, shall be recorded and may be used for impeachment at
trial and as a prior inconsistent statement pursuant to the Florida
Evidence Code.

(9) Videotaped Depositions of Sensitive Witnesses.

(A) Depositions of children under the age of 18
shall be videotaped upon demand of any party unless
otherwise ordered by the court.

(B) The court may order videotaping of a
deposition of a witness with fragile emotional strength or an
intellectual disability as defined in section 393.063, Florida
Statutes.
(C) The court may order the taking of a deposition
of a witness with fragile emotional strength or an intellectual
disability as defined in section 393.063, Florida Statutes, to be
in the presence of the trial judge or a special magistrate.

(e) Perpetuating Testimony.

(1) After the filing of the petition and upon reasonable
notice, any party may apply for an order to perpetuate testimony of
a witness. The application shall be verified or supported by the
affidavits of credible persons, and shall state that the prospective
witness resides beyond the territorial jurisdiction of the court or
may be unable to attend or be prevented from attending the
subsequent court proceedings, or that grounds exist to believe that
the witness will absent himself or herself from the jurisdiction of the
court, that the testimony is material, and that it is necessary to
take the deposition to prevent a failure of justice.

(2) If the application is well founded and timely made,
the court shall order a commission to be issued to take the
deposition of the witness to be used in subsequent court
proceedings and that any designated books, papers, documents, or
tangible objects, not privileged, be produced at the same time and
place. The commission may be issued to any official court reporter,
whether the witness be within or without the state, transcribed by
the reporter, and filed in the court. The commission shall state the
time and place of the deposition and be served on all parties.

(3) No deposition shall be used or read in evidence
when the attendance of the witness can be procured. If it shall
appear to the court that any person whose deposition has been
taken has absented himself or herself by procurement,
inducements, or threats by or on behalf of any party, the deposition
shall not be read in evidence on behalf of that party.

(f) Nontestimonial Discovery. After the filing of the
petition, upon application, and subject to constitutional limitations,
the court may with directions as to time, place, and method, and
upon conditions that are just, require:
(1) the child in all proceedings to:

(A) appear in a lineup;

(B) speak for identification by a witness to an
offense;

(C) be fingerprinted;

(D) pose for photographs not involving
reenactment of a scene;

(E) try on articles of clothing;

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

(G) permit the taking of samples of blood, hair,
and other materials of the body which involve no unreasonable
intrusion thereof;

(H) provide specimens of handwriting; or

(I) submit to a reasonable physical or medical
inspection of his or her body; and

(2) such other discovery as justice may require upon a
showing that such would be relevant or material.

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

(h) Supplemental Discovery. If, subsequent to compliance
with these rules, a party discovers additional witnesses, evidence,
or material that the party would have been under a duty to disclose
or produce at the time of such previous compliance, the party shall
promptly disclose or produce such witnesses, evidence, or material
in the same manner as required under these rules for initial
discovery.
(i) Investigations Not to Be Impeded. Except as otherwise
provided for matters not subject to disclosure or restricted by
protective orders, neither the counsel for the parties nor other
prosecution or defense personnel shall advise persons having
relevant material or information, except for the child, to refrain from
discussing the case with opposing counsel or showing opposing
counsel any relevant material, nor shall they otherwise impede
opposing counsel’s investigation of the case.

(j) Protective Orders. Upon a showing of good cause, the
court shall at any time order that specified disclosures be
restricted, deferred, or exempted from discovery, that certain
matters are not to be inquired into or 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 such party to make beneficial use of it.

(k) 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 upon 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:

(1) terminate the deposition;

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

(3) limit the time of the deposition;

(4) continue the deposition to a later time;

(5) order the deposition to be taken in open court and, in
addition;
(6) may impose any sanction authorized by this rule.

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

(l) 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) Upon request, the court shall allow the child to
make an ex parte showing of good cause for taking the deposition of
a Category B witness.

(3) A record shall 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 shall be sealed and preserved in the records of the
court, to be made available to the appellate court in the event of an
appeal.

(m) 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
pursuant to an applicable discovery rule, the court may:

(A) order such party to comply with the discovery
or inspection of materials not previously disclosed or produced;

(B) grant a continuance;

(C) grant a mistrial;
(D) prohibit the party from calling a witness not
disclosed or introducing in evidence the material not disclosed; or

(E) enter such 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 pursuant thereto may subject counsel or a party not
represented by counsel to appropriate sanction by the court. The
sanctions may include, but are not limited to, contempt proceedings
against the attorney or party not represented by counsel, as well as
the assessment of costs incurred by the opposing party, when
appropriate.

Court Commentary
1996 Amendment. This amendment generally conforms the
rule to the 1996 amendment to Florida Rule of Criminal Procedure
3.220.