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 on 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 on 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 the e-mail or other address designated by the law enforcement agency or department, 7 days before the date of the deposition. For the purposes of this subdivision, if a law enforcement agency agrees to accept written notice by e-mail, each law enforcement agency must designate e-mail addresses for agency liaisons that will accept electronic service of deposition notices on behalf of the agency’s employees. 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.

(9) On motion of any party, parent, guardian, attorney, guardian ad litem, or other advocate for a victim or witness under the age of 18, a person who has an intellectual disability, or a sexual offense victim or witness, or on the court’s own motion, the court can limit interviewing or the conducting of depositions in the presence of the defendant. The court must consider any fact the court deems relevant, not limited to age, nature of the offense, relationship to the defendant, and degree of emotional trauma that could result as a consequence of the defendant’s presence.

(10) Deposition of a victim of a sexual offense who is under the age of 16. A party seeking to take a deposition under this subdivision must file a written motion with the court. Within 30 days of the filing of the written motion unless agreed upon by the parties or for good cause shown, the court must conduct a hearing to determine whether to order the deposition to be conducted. In determining whether to order the deposition to be conducted, the court must consider:

(A) the mental and physical age and maturity of the victim;

(B) the nature and duration of the offense;

(C) the relationship of the victim to the defendant;

(D) the complexity of the issues involved;

(E) whether the evidence sought is reasonably available by other means, including whether the victim was the subject of a forensic interview related to the sexual offense; and

(F) any other factors the court deems relevant to ensure the protection of the victim and the integrity of the judicial process.

(11) Deposition of a victim of a sexual offense who is under the age of 12. There is a presumption that the taking of a deposition of a victim of a sexual offense who is under the age of 12 is inappropriate if the state has not filed a notice of intent to seek the death penalty and a forensic interview of the sexual offense victim is available to the defendant. In making that determination, the court may consider the factors set forth in subdivision (h)(9) of this rule. A party seeking to take a deposition under this subdivision must file a written motion with the court. Within 30 days of the filing of the written motion unless agreed upon by the parties or for good cause shown, the court must conduct a hearing to determine whether to order the deposition to be conducted.

(12) Limitations or conditions on manner and scope of deposition. If the court orders the deposition to be conducted pursuant to subdivision (h)(10) or (11), the court may order limitations or specific conditions such as:

(A) requiring the defendant to submit proposed deposition questions to the court for approval prior to commencing the deposition;

(B) setting the time and place of the deposition;

(C) permitting or prohibiting any person from attending the victim’s deposition;

(D) limiting the duration of the deposition; or

(E) any other conditions the court finds just and appropriate.

(13) Court order. The court must enter a written order finding whether the taking of a deposition under subdivision (h)(10) or (11) is authorized, and the written order must specify any limitations to the manner or scope of the taking of the victim’s deposition.

(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 rule, 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.