Will a Discovery Violation Earn a New Trial?

What Happens When the State Hides the Ball?

Sometimes intentionally, sometimes inadvertently, the Office of the State Attorney and its prosecutors will fail to provide discovery (evidence that it intends to use at trial), to the defense. When this occurs, we have a discovery violation. The Rules of Criminal Procedure require that the State provides a myriad of evidence within 15 days of the defense’s election to participate in the discovery process. 

The Process

First, you must have a skilled trial attorney who will be able to recognize when a violation has occurred. Adam Bantner is board certified in criminal trial law and has extensive trial experience. He will catch such a violation. 

Typically, a violation is not caught until trial when the Assistant State Attorney, through its witness, introduces evidence (a statement by the defendant, an observation of the witness, etc.) that has not been disclosed to the defense. When this happens, defense counsel must object and request that the statement be stricken and, I would recommend, request a mistrial. Should the court do neither, your attorney should request a Richardson hearing. It’s also important to note that it doesn’t matter whether the ASA was aware of the evidence. They are charged with constructive knowledge of the evidence possessed by their agents, i.e., law enforcement. Rojas v. State, 904 So.2d 598 (Fla. 5th DCA 2005).

Richardson Hearing

At this hearing, which will occur outside of the presence of the jury, the Court will first determine whether the evidence was not disclosed to the defense. Assuming this finding is made, the Court will next determine whether violation was harmless to the defense. This determinate is obviously the more complicated of the two findings that must be made. 

Recently, 15th Circuit Court Judge Harper summarized the determination as follows:

In State v. Schopp, 653 So. 2d 1016, 1019 (Fla. 1995) [20 Fla. L. Weekly S136a], the Florida Supreme Court made clear that “[t]he question of ‘prejudice’ in a discovery context is not dependent upon the potential impact of the undisclosed evidence on the fact finder but rather upon its impact on the defendant’s ability to prepare for trial.” (quoting Smith v. State, 500 So. 2d 125, 126 (Fla. 1986)). In conducting this analysis, the court should analyze whether the defense’s “trial preparation or strategy” would have been materially different had the defendant the benefit of the missing discovery. Scipio v. State, 928 So. 2d 1138, 1147 (Fla. 2006) [31 Fla. L. Weekly S114a]. “Trial preparation or strategy should be considered materially different if it reasonably could have benefitted the defendant.” Id. (quoting Schopp, 653 So. 2d at 1020). Only when the reviewing court “can say beyond a reasonable doubt that the defense was not procedurally prejudiced by the discovery violation can the error be considered harmless.” Id. (quoting Schopp, 653 So. 2d at 1021). 

Shannon v. State, FLWSUPP 2606SHAN (Fla. 15th Cir. Ct. 2018).

Will I Get a New Trial

This is the million dollar question. However, it is very fact specific. In Shannon, a new trial was not granted where evidence of defendant’s statement that “I’m going to fucking kill him” was not disclosed. The Court held that this statement was sufficiently similar to the properly admitted statement of “I’m going to go get my gun” so that the defense was not prejudiced in its preparation. Additionally, the defense was able to cross-examine the detective regarding the undisclosed statement and its strategy would not have changed had the undisclosed statement been disclosed. 

Expert Criminal Trial Representation Matters!

As you can see, trial work can be complicated. If you or your friends/family ever find yourself on the wrong side of a criminal allegation, don’t put your freedom in the hands of an inexperienced practitioner. Call The Bantner Firm today at 813.397.3965 to set up your free consultation!

Trust Your Community Lawyer!

Improper Bolstering by State Causes Conviction to Be Overturned

 

If a person is serious about taking their case to trial, they need to be represented by an attorney with trial experience and a depth of knowledge of the evidence code. As a recent case demonstrates, it can be critical to the success or failure of any particular action.

Improper Bolstering

In Lazarro v. State, 43 Fla. L. Weekly D2265h (Fla. 5th DCA 2018), Lazarro was accused of taking a former landlords property and selling it to make up for the landlord’s failure to return a security deposit. Obviously, the case came down to the credibility of the witnesses. Was the jury going to believe the landlord’s testimony that Lazarro stole the property and sold it without permission or Lazarro’s testimony that the property was given to him by the landlord?

Lazarro had going against him the fact that he was a five-time convicted felon. Because he took the stand to testify on his behalf, this fact properly became known to the jury. The was no evidence that the landlord possessed any convictions that would be admissible to the jury. In its holding, the Court essentially stated that while it was proper to comment on Lazarro’s convictions as relevant to his ability to tell the truth (i.e., his credibility), it was improper for the prosecutor to bolster the landlord’s credibility by commenting on his lack of convictions. Because the credibility of the witnesses was central to the decision by the jury, the Court held that Lazarro deserved a new trial.

Why The Right Attorney Matters

Had Lazarro’s attorney failed to object, the conviction most likely would have stood. Errors in evidence admission or argument, generally speaking, only warrant a reversal in cases of fundamental error. Most evidence/argument errors are not fundamental. A person should not trust their freedom to an attorney that cannot recognize when an improper argument is being made or inadmissible evidence is about to be proffered. The Bantner Firm and board certified attorney Adam Bantner possess the necessary education, training and experience to make sure that your case is given the best chance of success!

Call us today at 813.397.3965 to schedule your free consultation!