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!

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