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