CRIMINAL DISCOVERY IN FLORIDA

BY

JUDGE SCOTT J. SILVERMAN

DADE COUNTY COURT

TABLE OF CONTENTS

NEW RULES RELATING TO DISCOVERY (EFFECTIVE OCTOBER 1996)

New Rules Restricting Depositions…………………………………………………………… 4

New Rules on Deposing Law Enforcement Officers……………………………………….. 6

New Rules to Terminate or Limit Depositions……………………………………………….. 6

GENERAL DISCOVERY DUTIES AND OBLIGATIONS

Brady Violations…………………………………………………………………………………. 7

Purpose of Discovery…………………………………………………………………………… 8

Defendant's Mandatory Participation in Discovery………………………………………….. 8

State's Duty to Disclose Discovery……………………………………………………………. 9

Defendant's Duty to Disclose Discovery……………………………………………………… 9

Continuing Duty to Disclose………………………………………………………………….. 10

Restricting or Limiting Discovery ……………………………………………………………. 10

Omnibus Discovery……………………………………………………………………………. 11

DISCOVERY ISSUES

Compelling an Involuntary Examination of a Witness……………………………………. 12

Confidential Informants (Disclosure)………………………………………………………… 13

Constructive Knowledge of Law Enforcement Agencies…………………………………. 14

Correct Name of Witness in a Police Report, but Not on Discovery Response……… 14

Criminal Records of Witnesses……………………………………………………………… 15

Defendant Calling a Witness Listed by the State…………………………………………. 15

Defendant Obtains New Counsel……………………………………………………………. 15

Defendant Has Knowledge of Witness' Name…………………………………………….. 16

Effect of Invoking Discovery in a Parallel Administrative or Civil Hearing………………. 16

Expert Witness' Notes………………………………………………………………………… 16

Impeachment Witnesses and Documents………………………………………………….. 16

Law Enforcement Officer's Notes…………………………………………………………… 17

Oral Statements (Substance)………………………………………………………………… 17

Oral Statements (Expert Witness')………………………………………………………….. 18

Prosecutor or Officer Instructing a Witness Not to Speak……………………………….. 18

Prosecutor's Trial Preparation Notes……………………………………………………….. 18

Providing Inaccurate and Misleading Discovery…………………………………………… 18

Rebuttal Witnesses…………………………………………………………………………… 19


DEPOSITIONS

Constitutional Right to a Deposition………………………………………………………… 19

Depositions in Misdemeanor Cases………………………………………………………… 19

Restricting Depositions (Categories)……………………………………………………….. 20

Defendant's Physical Presence at Deposition…………………………………………….. 21

Depositions of Law Enforcement Officers…………………………………………………. 22

Failure of an Officer to Attend a Deposition……………………………………………….. 22

Terminating or Limiting Depositions………………………………………………………… 23

Prohibiting a Deposition………………………………………………………………………. 23

Depositions at Trial……………………………………………………………………………. 23

DISCOVERY VIOLATIONS (RICHARDSON HEARINGS)

Richardson Hearing Requirements…………………………………………………………. 24

Conducting an Adequate Richardson Hearing…………………………………………….. 25

Waiving a Richardson Hearing………………………………………………………………. 26

Remedies for a Discovery Violation…………………………………………………………. 27

No Discovery Violation

Excluding a Witness

Mistrial

Dismissal

Procedural Prejudice………………………………………………………………………….. 30

Defendant Calling a Witness Listed by the State…………………………………………. 31

Harmless Error (Failing to Conduct a Richardson Hearing)……………………………… 31

Appellate Review of Discovery Violations………………………………………………….. 32

 

 

CRIMINAL DISCOVERY IN FLORIDA

NEW RULES RELATING TO DISCOVERY (EFFECTIVE OCTOBER 1996)

I. NEW RULES RESTRICTING DEPOSITIONS

A. Effective October 1, 1996.

B. Affects adult and juvenile prosecutions

C. The Court may set a discovery schedule, including a discovery cut-off date. [Fla.R.Crim.P. 3.220(p)].

D. Places all state witnesses in one of three categories to be provided to the defense within 15 days after service of the defendant's "Notice of Discovery." The names and addresses of persons listed shall be clearly designated in the following categories: [Fla.R.Crim.P. 3.220(b)(1)(A).]

1. Category A - Unlimited option to depose.

2. Category B - May be deposed only upon court approval.

3. Category C - Not subject to deposition.

E. Category A - The same as depositions before the Rule Change. The defendant my depose, without prior court approval:

1. Eyewitnesses;

2. Alibi witnesses and rebuttal to alibi witnesses;

3. Witnesses present during the making of the defendant's or co-defendant's recorded or unrecorded statement (they must be separately identified within this category);

4. Investigating officers [defined as "an officer who has directed the collection of evidence, interviewed material witnesses, or who was assigned as the case investigator;"

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" (i.e. hearsay witnesses in cases involving a child victim); and

7. Expert witnesses who have not provided a written report and a curriculum vitae or who are going to testify to test results or give opinions that will have to meet the "Frye Test."

F. Category B - The defendant may depose the following only upon leave of court and upon a showing of "good cause shown."

All those witnesses not listed as either Category A or C witnesses.

To assist the trial court in determining whether to allow the deposing of a Category B witness, the court "should consider the consequences to the defendant, the complexities of the issues involved, the complexity of the testimony of the witness, and the other opportunities available to the defendant to discover the information sought by deposition."

[The commentary to the Rule indicates that Category B witnesses include those whose only connection to the case are as owners or property; transporting officers, booking officers, records or evidence custodians, and experts who have filed a report and curriculum vitae who will not offer opinions subject to the "Frye Test."]

G. Category C - The defendant may not depose any of the following witnesses:

1. Witnesses who perform only ministerial functions; or

2. Witnesses who the prosecution does not intend to call and whose involvement with, and knowledge of the case is fully set out in a police report or other statement furnished to the defense.

3. A witness listed by the prosecution in Category C shall not be subject to deposition, unless the witness should be listed in another category.

H. Any problems? The prosecution may depose, at will, any witnesses to be called at a trial or hearing listed by the defense [Fla.R.Crim.P. 3.220 (h)(1)(A)], but the defense may only take depositions as allowed by the categories.

II. NEW RULES ON DEPOSING LAW ENFORCEMENT OFFICERS

A. Subpoenas are no longer necessary for law enforcement officers. The are to appear for deposition, without subpoena, upon:

1. written notice of taking of deposition;

2. delivered to the law enforcement agency or place designated location; and

3. five days prior to the deposition.

[An officer's failure to appear after notice may subject the officer to contempt. [Fla.R.Crim.P. 3.220 (h)(5)]].

Any Problems with holding an officer in contempt under these circumstances?


III. NEW RULES TO TERMINATE OR LIMIT DEPOSITIONS

A. The court may terminate, limit, continue, or order that a deposition be taken in open court, upon a showing that the deposition is conducted in bad faith or in such a manner as to unreasonably annoy, embarrass, or oppress a deponent or party.

B. Under such circumstances, the court may impose any sanction authorized by the rule.

C. Should the court terminate the deposition, it shall only be resumed upon court order.

D. Any party may suspend a deposition for the time necessary to make a motion for an order under this rule. Fla.R.Crim.P. 3.220 (l)(2).

GENERAL DISCOVERY DUTIES AND OBLIGATIONS

IV. BRADY VIOLATIONS

A. In Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1197, 10 L.Ed.2d 215 (1963), the United States Supreme Court ruled that "the suppression by the prosecution of evidence favorable to an accused...violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Evidence is material "if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. Gorham v. State, 597 So.2d 782 (Fla. 1992). A 'reasonable probability' is a probability sufficient to undermine confidence in the outcome." United State v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3383, 87 L.Ed.2d 481 (1985). It is irrelevant whether the prosecutor or police is responsible for the nondisclosure; it is enough that the State itself fails to disclose. See, Williams v. Griswald, 743 F.2d 1533, 1542 (11th Cir. 1984); Scott v. State, 657 So.2d 1129 (Fla. 1995).

B. A Brady violation occurs where the state suppresses material which amounts to exculpatory information. Examples follow:

1. Prosecution failed to disclose to defendant that the victim has gone to the state attorney's office and filed an affidavit stating her desire not to prosecute and requesting that the charges be dismissed. Randall v. State, 604 So.2d 36 (Fla. 1st DCA 1992).

2. The state's failure to disclose the fingerprint technician's report which was material and favorable to the defendant. Duarte v. State, 598 So.2d 270 (Fla. 3rd DCA 1992); Moore v. Illinois, 408 US 786 (1972).

C. A Brady violation does not happen where the information is equally accessible to the defense and the prosecution or the defense either had the information or could have obtained it through the exercise of reasonable diligence. Provenzano v. State, 616 So.2d 428, 430 (Fla. 1993). An example follow:

The state's failure to produce photographs which might tend to exculpate defendant where the record does not establish that such photographs were in existence and available to the state. Demps v. State, 395 So.2d 501 (Fla. 1981); Sheppard v. State, 589 So.2d 1035 (Fla. 2d DCA 1991).

V. PURPOSE OF DISCOVERY

A. The purpose of discovery in criminal cases is "to avail the defense of evidence known to the state so that convictions [will] not be obtained by the suppression of evidence favorable to a defendant, or by surprise tactics in the courtroom." Cooper v. State, 336 So.2d 1133, 1138 (Fla. 1976), cert. denied, 431 U.S. 925 (1977).

B. Another purpose for pre-trial discovery is to assure a fair trial to a defendant charged with a crime. Discovery is not employed to require the state attorney to investigate or prepare the defendant's case, or to disclose to the defendant information or documents which, by the exercise of due diligence, are readily available by subpoena or deposition. State v. Coney, 272 So.2d 550, 553 (Fla. 1st DCA 1973).

C. Florida's Rules of Criminal Procedure are designed to prevent trial by ambush. Barrett v. State, 649 So.2d 219, 221 (Fla. 1994).

D. The basic philosophy underlying discovery is the prevention of surprise and the implementation of an improved fact finding process. Barrett v. State, 649 So.2d 219, 221 (Fla. 1994), citing, Kilpatrick v. State, 376 So.2d 386, 388 (Fla. 1979)

Criminal discovery is not intended to provide defendants with an opportunity to build their cases during the discovery process by "creating" evidence, i.e. misidentifications. State v. Kuntsman, 643 So.2d 1172 (Fla. 3d DCA 1994).


VI. DEFENDANT'S MANDATORY PARTICIPATION IN DISCOVERY

There is no requirement that a defendant participate in discovery. Landry v. State, 666 So.2d 121 (Fla. 1995); See, Fla.R.Crim.P. 3.220(a) (defendant may elect to participate in discovery).

VII. STATE'S DUTY TO DISCLOSE

The prosecutor is obligated to disclose and permit defense counsel to inspect information in the state's control. The applicable rule requires disclosure, as well as an opportunity to review. If the state fails to discharge its duty in this regard, the trial court must make an inquiry into the circumstances of the discovery violation. Carter v. State, 665 So.2d 1112 (Fla. 4th DCA 1996); Fla.R.Crim.P. 3.220(a).

VIII. DEFENDANT'S DUTY TO DISCLOSE

A. Rule 2.220(d)(1) requires a defendant to "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...." This is a continuing duty under Rule 2.220(j). Hernandez v. State, 572 So.2d 969, 971 (Fla. 3d DCA 1990).

Once a defendant has made a determination to issue the trial subpoena to a witness, that witness was one which the defendant "expects to call" within the meaning of the Rule, even if the subpoena is unserved. A failure to provide the name and address of the witness to the prosecution will constitute a violation of the disclosure obligation. The issuance of the trial subpoena demonstrates that the defense desired to call the witness. Id. at 972 footnote 1.

B. After opening statements and direct examination were completed, the defense sought to call two unlisted witnesses to testify that someone else confessed to the crime. The trial court excluded their testimony, because the evidence was of massive import and that the state would be substantially prejudiced by the introduction of the testimony without prior notice. The Fourth District Court of Appeal concluded that the trial court erred, and reversed and remanded for a new trial. Even though the trial court conducted a Richardson hearing, the appeals court noted that, "Since the testimony sought to be introduced by the witnesses in the instant case was exculpatory in nature, exclusion of the testimony would deny [the defendant] his fundamental right to defend himself in violation of the Sixth Amendment." The appeals court further noted that, "When exculpatory evidence is sought to be introduced in violation of the discovery rules, and remedies which would allow the trial to proceed are insufficient, the proper course of action is to declare a mistrial." By its decision, the appeals court specifically stated that it was not suggesting that under these circumstances the witnesses should have been allowed to testify. Rather, the appropriate remedy under such circumstances is a mistrial. Mattear v. State, 657 So.2d 46 (Fla. 4th DCA 1995).

C. The failure of a defendant to file a written discovery response under Rule 3.220 can prevent a defendant from exercising his constitutional right to present a defense, if the state can demonstrate that it was prejudiced by the defendant's failure to comply with the discovery requirements of the rule. Olson v. Blasco, 676 So.2d 481 (Fla. 4th DCA 1996).

IX. CONTINUING DUTY TO DISCLOSE

A. Under the continuing discovery obligation, it is incumbent on the State to disclose newly discovered evidence to the defense. Absent such disclosure, when the violation is brought to the judge's attention, the court is required to conduct a complete Richardson hearing and provide a full record for appellate review. Barrett v. State, 649 So.2d 219, 222 (Fla. 1994).

B. The state has a continuing duty to disclose witnesses, regardless or whether the defendant was able to obtain the information by another means. Hahn v. State, 626 So.2d 1056, 1058 (Fla. 4th DCA 1993).

C. The state has an affirmative and continuing duty to disclose to the defense certain information within the state's possession, including the results of scientific tests and any tangible evidence that the state intends to introduce at trial. McArthur v. State, 671 So.2d 867 (Fla. 4th DCA 1996).

D. Although the prosecution has no general duty to seek out information as to which the defense has reasonable access, it cannot deliberately avoid the acquisition of information. See, State v. Counce, 392 So.2d 1029 (Fla. 4th DCA 1991).

X. RESTRICTING OR LIMITING DISCOVERY

A. The trial court shall deny or partially restrict disclosure of discovery, pursuant to Fla.R.Crim.P. 3.220(e), on its own initiative or on motion, if it finds:

1. There is substantial risk of to any person of physical harm;

2. Intimidation;

3. Bribery;

4. Economic reprisals; or

5. Unnecessary annoyance or embarrassment resulting from the disclosure, that outweighs any usefulness of the disclosure to either party.

B. An actual threat to personal safety of witnesses, and not an implied threat, must be shown in order to withhold the present address and place of employment of a witness. The defendant must be given an opportunity to show any special need for the requested information. Holmes v. State, 557 So.2d 933 (Fla. 5th DCA 1990).

XI. OMNIBUS DISCOVERY

A. Fla.R.Crim.P. 3.220(f) provides, "On a showing of materiality, the court may require such other discovery to the parties as justice may require."

B. The defense sought to take interior photographs of the victim's home. The police had already taken interior and exterior photographs. The victim objected, claiming that additional photos would facilitate another attempted brake-in. The trial court ordered that the photos be taken but their location be limited. The appeals court found that the trial court did not depart from the essential requirements of law, and stated, "Although we respect this victim's right to privacy in her home, we conclude that it is outweighed by the defendant's right to due process here. We also conclude that were good cause has been shown for inspection of the crime scene residence, such an order would generally not constitute a departure from the essential requirements of law." State v. Gonsalves, 661 So.2d 1281 (Fla. 4th DCA 1995).

C. The trial court, upon a showing of materiality, may require such other discovery to the parties as justice may require. Fla.R.Crim.P. 3.220 (f).

DISCOVERY ISSUES

XII. COMPELLING AN INVOLUNTARY EXAMINATION OF A WITNESS

Only in "rare instance[s]" does a trial judge have the authority to order the involuntary examination of a witness. State v. Smith, 260 So.2d 489, 490 (Fla. 1972). The trial judge's authority extends only to instances where there are strong and compelling reasons. See, State v. Camego, 641 So.2d 109 (Fla. 5th DCA 1994).

The following are instances in which the trial court abused its discretion. Note that these cases primarily involve the objecting person's body or mind:

1. Compelling a victim of a sexual battery to undergo a psychological evaluation by a psychiatrist. State v. Camego, 641 So.2d 109 (Fla. 5th DCA 1994).

2. Compelling a prosecution witness to submit to an optical examination to test visual acuity. State v. Smith, 260 So.2d 489 (Fla. 1972).

3. Compelling a child witness to submit to a gynecological examination by the defendant's expert gynecologist. State v. Diamond, 553 So.2d. 1185 (Fla. 1st DCA 1988).

4. Compelling a victim to undergo an involuntary psychological examination absent strong and compelling evidence of the victim's veracity, or mental or emotional instability. State v. LeBlanc, 558 So.2d 507 (Fla. 3d DCA 1990).

5. Compelling a psychiatric examination on mere allegations that the victim is unable to appreciate the duty to tell the truth, might have psychological problems, or might suffer from alcoholism. State v. Coe, 521 So.2d 373 (Fla. 2d DCA 1988).

6. Compelling an eyewitness to attend a pre-trial line up. State v. Cobb, 619 So.2d 1056 (Fla. 5th DCA 1993); See also, State v. Ray, 694 So.2d 1249 (Fla. 4th DCA 1992)(Absent a showing by the defense of a strong or compelling reason, it is error for the court to enter an order compelling the victim to appear at a line-up and identify the person who committed the offenses.).

7. Compelling an eyewitness during a pre-trial deposition to view and answer questions concerning a photo array consisting of 38 photos of which 4 are the defendant, absent strong or compelling circumstances. State v. Kuntsman, 643 So.2d 1172 (Fla. 3d DCA 1994).

8. Compelling a prosecution witness to have hair samples extracted from her body for testing by the defendant. Bartlett v. Hamwi, 626 So.2d 1040 (Fla. 4th DCA 1993).

9. Compelling a victim to submit to HIV testing. State v. Brewster, 601 So.2d 1289 (Fla. 5th DCA 1992).

XIII. CONFIDENTIAL INFORMANTS

A. Under the Florida Rule of Criminal Procedure 3.220(g)(2), disclosure of the identity of a "confidential informant" is generally not required unless the state plans to call the informant as a witness, or if the failure to disclose the informant's identity will infringe upon the constitutional rights of the accused. State v. Natson, 661 So.2d 926 (Fla. 4th DCA 1995).

B. Under Rule 3.220(g)(2) which pertains to the disclosure of the identity of a confidential informants, there is no distinction between a so-called "anonymous tipster" and the commonly-thought-of "confidential informant." State v. Natson, 661 So.2d 926 (Fla. 4th DCA 1995). See, Hinson v. State, 595 So.2d 301 (Fla. 3d DCA 1992).

C. The trial court is required to conduct a balancing test to determine whether a defendant's interest in obtaining an "anonymous tipster's" identity outweighs the state's privilege of nondisclosure. The trial court should consider doing this in camera. State v. Natson, 661 So.2d 926 (Fla. 4th DCA 1995). See, State v. Harklerode, 567 So.2d 982, 985 (Fla. 5th DCA 1990).

D. To invade the privilege of nondisclosure of a confidential informant's true identity, the defense must allege a specific defense, supported by sworn proof, sought to be established through the confidential informant. A bare allegation that a defendant is unable to prepare the case without disclosure is insufficient. Nor is mere speculation that the confidential informant's testimony will be useful.

If the state does not intend to call the confidential informant as a witness, the court cannot compel the confidential informant's name absent an infringement of the defendant's constitutional rights.

Where a confidential informant supplied police with only information establishing probable cause for a search, disclosure is not required. State v. Mashke, 577 So.2d 610 (Fla. 2nd DCA 1991).

XIV. CONSTRUCTIVE KNOWLEDGE OF LAW ENFORCEMENT AGENCIES

A. The knowledge of law enforcement agencies as to the names, addresses, and statements of all persons who have information which may be relevant to the offense charged is imputed to the state for purposes of the discovery rules. Griffin v. State, 598 So.2d 254 (Fla. 1st DCA 1992).

B. None of the rules of criminal procedure relating to discovery require the state to disclose information which is not with in the state's actual or constructive possession. Sinclair v. State, 657 So.2d 1138 (Fla. 1995), citing, Fla.R.Crim.P. 3220(b)(1).

C. The state is charged with constructive knowledge and possession of evidence withheld by state agents, including law enforcement officers. The mere fact that the prosecutor has no actual knowledge of the existence of evidence does not relieve the state of its obligation to properly respond to the defendant's discovery request. Tarrant v. State, 668 So.2d 223 (Fla. 4th DCA 1996).

XV. CORRECT NAME OF WITNESS IN POLICE REPORT, BUT NOT ON DISCOVERY RESPONSE

Discovery provided by the state incorrectly listed the witness. Even though the witness was correctly referred to in the police report, the appeals court found this to be a discovery violation. In re N.P.C., 610 So.2d 744 (Fla. 4th DCA 1993).

XVI. CRIMINAL RECORDS OF WITNESSES

A defendant is properly allowed discovery as to the criminal records of the state's witnesses to the extent that the information is within the constructive or actual possession of the state. This ruling is not limited to those records in the physical possession of the State Attorney. It also includes data obtainable from the FBI. Yanetta v. State, 320 So.2d 23, 24 (Fla. 3d DCA 1975). See also, State v. Coney, 272 So.2d 550. 553-554 (Fla. 1st DCA 1973) (The state is required to disclose to the defendant the criminal records of all state witnesses which are in the possession of the State, its agents, or the FBI, when the records are wholly unavailable to the defendant by the exercise of due diligence through deposition, subpoena, or other means, but are readily available to the State and are within the actual or constructive possession of the state attorney. It seems that the court will look to see whether there is a working relationship between the state attorney and the other state governmental agency as to whether an obligation exists to provide the information requested by the defendant, when the material sought is not otherwise available to the defendant by the exercise of due diligence.).

XVII. DEFENDANT CALLING WITNESS LISTED BY THE STATE

The defense called as its own witness a police officer listed by the state, but not by the defense. The appellate court concluded that by listing the officer as its own witness, the state was in a position to expect the defense to call him. Therefore, excluding the officer without ascertaining what procedural prejudice would have resulted by his testimony was an error requiring a reversal and remand. McDugle v. State, 591 So.2d 660, 661 (Fla. 3d DCA 1991).

XVIII. DEFENDANT OBTAINS NEW COUNSEL

A. Where the record shows that the state provided timely discovery to the original defense team within the applicable time limits, the Florida Supreme Court did not find a discovery violation. Wuornos v. State, 644 So.2d 1000 (Fla.1994).

B. Once discovery is invoked by prior counsel, a defendant cannot avoid the reciprocal obligation imposed under the Rules of Criminal Procedure by obtaining new counsel. State v. Meggison, 556 So.2d 816 (Fla. 5th DCA 1990).

C. The initial notice is binding upon all subsequent defense attorneys. Hughes v. State, 542 So.2d 1027 (Fla. 3d DCA 1989).

XIX. DEFENDANT HAS KNOWLEDGE OF WITNESS' NAME

Where defendant knew the witness' name and failed to depose him, the state is still obligated to disclose the witness' statements. See, Rainey v. State, 596 So.2d 1295 (Fla. 2d DCA 1992); Mason v. State, 654 So.2d 1225, 1226 (Fla. 2d DCA 1995).

XX. EFFECT OF INVOKING DISCOVERY IN A PARALLEL ADMINISTRATIVE OR CIVIL HEARING

The Rules of Criminal Procedure have no application to discovery taken by a defendant in a parallel administrative or civil proceeding. Therefore, a defendant who obtains discovery at such a hearing is not be deemed to have invoked criminal discovery. Consequently, the defendant is not obligated to engage in reciprocal discovery under the Rules of Criminal Procedure. Llanes v. State, 603 So.2d 1294, 1298 (Fla. 3d DCA 1992).

XXI. DISCOVERY OF EXPERT WITNESS' NOTES

Fla.R.Crim.P. 3.220 requires the defense to disclose "reports or statements of experts made in connection with the particular case, including results of physical or mental examinations...." However, handwritten notes of a defense-witness psychologist which are merely the working materials from which a report or statement may later be made are not discoverable. Snow v. Fowler, 662 So.2d 1295 (Fla. 3d DCA 1995).

XXII. IMPEACHMENT WITNESSES AND DOCUMENTS

A. The Richardson rule applies to impeachment evidence, as well as direct and rebuttal evidence. Smith v. State, 500 So.2d 125, 127 (Fla. 1986).

B. The defense is entitled to the defendant's record of prior felony convictions which the state attempted to use to impeach defendant at trial. Davis v. State, 564 So.2d 606 (Fla. 3d DCA 1990).

XXIII. DISCOVERY OF LAW ENFORCEMENT OFFICER'S NOTES

A. Law enforcement witnesses brought notes to the witness stand outlining their recollection of the events surrounding the subject murder. The defendant's attorney was given the opportunity to review the notes immediately prior to the witnesses' testimony. The Florida Supreme Court concluded that these type of notes are not "reports" or "summaries" as mentioned in State v. Gillespie, 227 So.2d 550, 556 (Fla. 2d DCA 1969). Accordingly, the Court found no discovery violation. It concluded that the officers' notes were not discoverable unless and until they were actually used at trial to refresh the witnesses' memories. Wuornos v. State, 644 So.2d 1000 (Fla. 1994).

B. Police and investigative reports are discoverable, but notes from which such reports are compiled are not discoverable. Rule. 3.220(b)(1)(ii); See, Terry v. State, 668 So.2d 954 (Fla. 1996) (notes by a law enforcement analyst written in a lab); Geralds v. State, 601 So.2d 1157. 1160 (Fla. 1992) (field notes by a crime laboratory analyst and crime scene coordinator from which a police or investigative report was compiled).

XXIV. DISCLOSURE OF THE SUBSTANCE OF ORAL STATEMENTS

A. Pursuant to Rule 3.220(b)(1)(iii) the state is obligated to reveal to the defense, amongst other things, "the substance of any oral statements made by the accused." The state is under no obligation to provide a verbatim transcript of such oral statements. Moreover, an appeals court is not inclined to find the state committed a discovery violation where the defense was obliged to indulge reasonable inferences and could have made further inquiry to determine the extent of the defendant's disclosure. Banks v. State, 590 So.2d 465, 467 (Fla. 1st DCA 1991).

  1. The state is not required to disclose to the defense an oral, unrecorded statement of a state witness made to the prosecuting attorney. Johnson v. State, 545 So.2d 411, 412 (Fla. 3d DCA 1989).

XXV. ORAL STATEMENTS BY EXPERTS

An expert's oral statements are not discoverable. The reference to "statements" as set forth in Rules 3.220(a)(1)(ii) and 3.220(a)(1)(x) are limited to written statements or contemporaneously recorded oral statements. Watson v. State, 651 So.2d 1159 (Fla. 1994).

XXVI. PROSECUTOR or OFFICER INSTRUCTING A WITNESS NOT TO SPEAK OUTSIDE OF THEIR PRESENCE

It is a discovery violation if a prosecutor or a police officer instructs a confidential informant not to speak to anyone outside of their presence. If a prosecutor acts in this fashion, the court should impose sanctions against him or her or institute grievance proceedings consistent with the Bar Rules of Ethics. Gilbert v. State, 547 So.2d 246, 249 (Fla. 4th DCA 1989).

XXVII. PROSECUTOR'S TRIAL PREPARATION NOTES

Where the prosecutor's notes did not reflect the verbatim statements of any witness interviewed and had not been signed, adopted, or approved by the persons to whom they were attributed; and contained trial strategy notions by the prosecutor and his personal interpretation of remarks made by witnesses, such material was not subject to disclosure. Williamson v. Dugger, 651 So.2d 84 (Fla. 1994); See, also, Fla.R.Crim.P. 3220(g)(1) (disclosure not required of legal research or of records, correspondence, reports, or memoranda to the extent that they contain the opinions, theories, or conclusions of the attorneys or their legal staffs).

XXVIII. PROVIDING INACCURATE AND MISLEADING DISCOVERY

The furnishing or misleading and inaccurate discovery is tantamount to providing no discovery at all and may constitute a violation of the discovery rules. A defendant is entitled to rely on the accuracy of the information disclosed by the prosecution pursuant to a discovery request. McArthur v. State, 671 So.2d 867 (Fla. 4th DCA 1996).

XXIX. REBUTTAL WITNESSES

A. Rule 3.220(b) and (f) compel discovery of rebuttal witnesses for which there is a continuing obligation under the rule to "promptly disclose or produce such witnesses." Kilpatrick v. State, 376 So.2d 386, 388 (Fla. 1979). "Prompt disclosure" means immediate disclosure. Cooper v. State, 336 So.2d 1133, 1138 (Fla. 1976).

B. The Richardson rule applies to evidence submitted during rebuttal. Barrett v. State, 649 So.2d 219, 222 (Fla. 1994), citing, Smith v. State, 500 So.2d 125, 126-127 (Fla. 1986).

DEPOSITIONS

XXX. CONSTITUTIONAL RIGHT TO A DEPOSITION

A defendant in a criminal proceeding does not have a constitutional right to take the deposition of any of the prosecution's witnesses. State v. Kuntsman, 643 So.2d 1172 (Fla. 3d DCA 1994), citing, Weatherford v. Bursey, 429 U.S. 545 (1977).

XXXI. DEPOSITIONS IN MISDEMEANOR CASES

In the absence of good cause, depositions in misdemeanor and criminal traffic cases are prohibited. However, if the rules relating to discovery have not been complied with by the state, good cause need not be demonstrated.

To determine good cause, the trial court should consider:

1. the consequences to the defendant;

2. the complexity of the issues involved;

3. the complexity of the witness' testimony (e.g. experts);

4. the other opportunities available to the defendant to discover the information sought by deposition.

The restriction on depositions does not apply if, after furnishing discovery to the defense, the state takes the statement of a listed defense witness pursuant to F.S. 27.04.

XXXII. RESTRICTING DEPOSITIONS

A. Effective October 1, 1996.

B. Affects adult and juvenile prosecutions

C. The Court may set a discovery schedule, including a discovery cut-off date. [Fla.R.Crim.P. 3.220(p)].

D. Places all state witnesses in one of three categories to be provided to the defense within 15 days after service of the defendant's "Notice of Discovery." The names and addresses of persons listed shall be clearly designated in the following categories: [Fla.R.Crim.P. 3.220(b)(1)(A).]

1. Category A - Unlimited option to depose.

2. Category B - May be deposed only upon court approval.

3. Category C - Not subject to deposition.

E. Category A - The same as depositions before the Rule Change. The defendant my depose, without prior court approval:

1. Eyewitnesses;

2. Alibi witnesses and rebuttal to alibi witnesses;

3. Witnesses present during the making of the defendant's or co-defendant's recorded or unrecorded statement (they must be separately identified within this category);

4. Investigating officers [defined as "an officer who has directed the collection of evidence, interviewed material witnesses, or who was assigned as the case investigator;"

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" (i.e. hearsay witnesses in cases involving a child victim); and

7. Expert witnesses who have not provided a written report and a curriculum vitae or who are going to testify to test results or give opinions that will have to meet the "Frye Test."

F. Category B - The defendant may depose the following only upon leave of court and upon a showing of "good cause shown."

All those witnesses not listed as either Category A or C witnesses.

To assist the trial court in determining whether to allow the deposing of a Category B witness, the court "should consider the consequences to the defendant, the complexities of the issues involved, the complexity of the testimony of the witness, and the other opportunities available to the defendant to discover the information sought by deposition.

[The commentary to the Rule indicates that Category B witnesses include those whose only connection to the case are as owners or property; transporting officers, booking officers, records or evidence custodians, and experts who have filed a report and curriculum vitae who will not offer opinions subject to the "Frye Test."]

G. Category C - The defendant may not depose any of the following witnesses:

1. Witnesses who perform only ministerial functions; or

2. Witnesses who the prosecution does not intend to call and whose involvement with, and knowledge of the case is fully set out in a police report or other statement furnished to the defense.

3. A witness listed by the prosecution in Category C shall not be subject to deposition, unless the witness should be listed in another category.

XXXIII. DEFENDANT'S PHYSICAL PRESENCE AT DEPOSITION

A. The defendant, absent a stipulation of the parties, shall not be physically present at a deposition.

B. The court may order the physical presence of a defendant at a deposition upon a showing of good cause. In determining whether good cause exists, the court may consider:

1. the need for the physical presence of the defendant to obtain effective discovery;

2. the intimidating effect of the defendant's presence on the witness, if any;

3. any cost or inconvenience which may result; and

4. any alternative electronic or audio/visual means available. [Fla.R.Crim.P. 3.220 (h)(7)]

XXXIV. DEPOSING LAW ENFORCEMENT OFFICERS

A. Subpoenas are no longer necessary for law enforcement officers. The are to appear for deposition, without subpoena, upon:

1. written notice of taking of deposition;

2. delivered to the law enforcement agency or place designated location; and

3. five days prior to the deposition.

[An officer's failure to appear after notice may subject the officer to contempt. [Fla.R.Crim.P. 3.220 (h)(5)]].

B. Any Problems with holding an officer in contempt under these circumstances?

XXXV. FAILURE OF AN OFFICER TO ATTEND A DEPOSITION

A. The failure of an officer to appear for a deposition does not constitute prosecutorial misconduct, nor does it amount to a discovery violation. State v. Hill, 532 So.2d 1303 (Fla. 2d DCA 1988).

B. The state has no duty to produce a witness for deposition even when ordered by the court. State v. Brown, 527 So.2d 209 (Fla. 3d DCA 1988).

XXXVI. TERMINATE OR LIMIT DEPOSITIONS

A. The court may terminate, limit, continue, or order that a deposition be taken in open court, upon a showing that the deposition is conducted in bad faith or in such a manner as to unreasonably annoy, embarrass, or oppress a deponent or party.

B. Under such circumstances, the court may impose any sanction authorized by the rule.

C. Should the court terminate the deposition, it shall only be resumed upon court order.

D. Any party may suspend a deposition for the time necessary to make a motion for an order under this rule. Fla.R.Crim.P. 3.220 (l)(2).

XXXVII. PROHIBITING A DEPOSITION

A defendant may be precluded from deposing a person the prosecutor does not, in good faith, intend to call at trial, and whose involvement with the case and knowledge of the case is fully set out in a police report or other statement furnished to the defense. Washington v. State, 653 So.2d 362, 365 (Fla. 1994) (The prospective deponent was a DNA technician who the state did not intend to call as a witness. In addition, the technician submitted an affidavit with stating the number of DNA tests she previously performed, that she had no specific recollection of the defendant's test, and that she would have to rely on lab notes to discuss the testing procedure.)

XXXVIII. DEPOSITIONS AT TRIAL

A. Discovery depositions, take pursuant to Fla.R.Crim.P. 3.220, may not be used as substantive evidence in a criminal trial. However, they my be used by any party for the purpose of contradicting or impeaching the testimony of the deponent as a witness. State v. Green, 667 So.2d 756 (Fla. 1995).

B. Only depositions taken to perpetuate testimony pursuant to Fla.R.Crim.P. 3.190(j) may be used as substantive evidence. State v. Green, 667 So.2d 756 (Fla. 1995).

C. Discovery depositions may not be used as substantive evidence in criminal trials. State v. James, 402 So.2d 1169, 1171 (Fla. 1981).

D. However, a defendant has a right to be present at a deposition taken by the state to be used against him at trial. Confrontation clause mandates presence of defendant where deposition will be admitted as substantive evidence against him at trial. State v. Basiliere, 353 So.2d 820 (Fla. 1977); Gore v. State, 599 So.2d 978 (Fla. 1992); Fla.R.Crim.P. 3.190(j)(3).

E. Depositions not used as substantive evidence do not implicate the same concerns as trial testimony. While it is crucial for a defendant to be able to consult with his attorney at trial in order to aid him in conducting the examination of a witness, the same is not true of a deposition. Francis v. State, 413 So.2d 1175, 1177 (Fla. 1982).

F. "Any deposition taken pursuant to [3.220] may be used by any party for the purpose of contradicting or impeaching the testimony of the deponent as a witness." Fla.R.Crim.P. 3.220 (h)(1).

Discovery Violations (Richardson Hearings)

XXXIX. RICHARDSON HEARING REQUIREMENTS

A. When a discovery violation is brought to the attention of the trial court, the court must conduct a hearing as to the circumstances of the violation and its potential prejudice to the defendant. Carter v. State, 665 So.2d 1112 (Fla. 4th DCA 1996).

B. When it has been alleged that the state has committed a discovery violation, the trial court pursuant to Richardson, and its progeny, has a duty to first make an adequate inquiry into all of the surrounding circumstances concerning the violation. Tarrant v. State, 668 So.2d 223 (Fla. 4th DCA 1996).

C. A trial court's failure to hod an adequate Richardson inquiry may be grounds for a new trial. Carter v. State, 665 So.2d 1112 (Fla. 4th DCA 1996).

D. The "guts" of a Richardson hearing:

The Richardson Inquiry follows:

1. Was there a discovery violation?

2. Was the violation willful or inadvertent?

3. Was the violation trivial or substantial?

4. What effect did the violation have on the ability of the other side to prepare for trial?

Richardson v. State, 246 So.2d 771 (Fla. 1971).

E. The requirement to hold a Richardson hearing reinforces the discovery rules and encourages full compliance. It would be counterproductive to disregard the cause of a discovery violation. Donahue v. State, 464 So.2d 608 (Fla. 4th DCA 1985).

F. "The purpose of a Richardson inquiry it so ferret out procedural, rather than substantive, prejudice. In deciding whether this type of prejudice exists in a given case, a trial judge must be cognizant of two separate but interrelated aspects. First, the trial judge must decide whether the discovery violation prevented the defendant from properly preparing for trial.... The second aspect of procedural prejudice deals with the proper sanction to invoke for a discovery violation." State v. Schopp, 653 So.2d 1016 (Fla. 1995).

G. A trial court's failure to conduct a proper Richardson hearing does not constitute per se reversible error. However, the failure to make a full Richardson inquiry may be deemed harmless only where the state proves beyond a reasonable doubt that the defendant was not procedurally prejudiced by the violation. State v. Schopp, 653 So.2d 1016 (Fla. 1995).

XL. CONDUCTING AN ADEQUATE RICHARDSON HEARING

A. The defendant requested a Richardson hearing when the State called a witness who was not previously listed in discovery. The record indicated that the trial judge thought the State's violation was insubstantial and nonprejudicial. The trial judge extended an opportunity to the defense attorney to talk to the witness before his testimony. The appellate court was satisfied under these facts the Richardson requirements were met. Wilder v. State, 587 So.2d 543, 548 (Fla. 1st DCA 1991).

B. Where express findings on the issues raised in Richardson are not made by the trial judge, an appellate court may still find that a "minimally adequate Richardson hearing" was conducted. It is helpful for appellate purposes for the trial court to make express findings for the record in a clear fashion. Banks v. State, 590 So.2d 465, 467 (Fla. 1st DCA 1991).

C. A Richardson hearing is satisfied when the trial court, based upon a review of the record, makes an adequate inquiry into the surrounding facts and circumstances of the alleged discovery violation to support its conclusions. Stone v. State, 547 So.2d 657 (Fla. 2d DCA 1989).

D. The trial court's inquiry was inadequate under Richardson. The trial judge made no determinations, implicit or explicit as to the prejudice, if any, suffered by the defendant as a result of the state's failure to produce the evidence. Without any determination as to the threshold issue, the appeals court found that the inquiry was inadequate to satisfy the requirements of Richardson. Tarrant v. State, 668 So.2d 223 (Fla. 4th DCA 1996).

XLI. WAIVING A RICHARDSON HEARING

A. Even though defendant's counsel requested a Richardson hearing, it is was deemed waived where the defendant stated that a the hearing would not cure the discovery violation. Suggs v. State, 644 So.2d 64 (Fla. 1994).

B. In a first degree murder trial the state introduced an undisclosed grand jury report during re-direct examination of a witness. Upon disclosure of the report, the defense counsel asked for and was given the opportunity to examine it. The defense counsel did not make any further objection nor did he request a Richardson inquiry. The Florida Supreme Court concluded that there was no error, and that the defendant's claim on appeal that the trial court failed to conduct a Richardson hearing was without merit. Parker v. State, 641 So.2d 349, 374 (Fla. 1994).

C. A Richardson hearing was waived when after the state's discovery violation was raised the defendant never requested a hearing, nor did defense counsel object later or request a Richardson hearing when the previously undisclosed witness was called to testify by the state. Taylor v. State, 589 So.2d 918, 919 (Fla. 4th DCA 1991); Cf. Shariff v. State, 589 So.2d 960, 961 (Fla. 2d DCA 1991)("[E]ven in the absence of a timely objection, a per se basis for reversal arises from failure to fulfill the Richardson requirement." citing, Lee v. State, 538 So.2d 63 (Fla. 2d DCA 1989)).

XLII. REMEDIES FOR A DISCOVERY VIOLATION

Had a judge conducted an adequate inquiry, he could have chosen from a "panoply of remedies...including, if the evidence warrants, finding not prejudice or 'harmless error' and proceeding with the trial." Barrett v. State, 649 So.2d 219, 222 (Fla. 1994), citing, Smith v. State, 500 So.2d 125, 126 (Fla. 1986), overruled by State v. Schopp, 653 So.2d 1016 (Fla. 1995).

These remedies could include:

1. Grant a continuance;

2. Grant a mistrial;

3. Excluding the witness or evidence;

4. Contempt proceedings; and

5. Costs to opposing counsel, among other things.

A. NO DISCOVERY VIOLATION

1. The Court concluded there was not a discovery violation at trial when the state two weeks prior to trial disclosed the names of two minor witnesses to the defense. The defense counsel declared he was satisfied with discovery after deposing them and did not object to them when they testified. Parker v. State, 641 So.2d 369, 374 (Fla. 1994).

2. Where the record shows that the state provided timely discovery to original defense team within the applicable time limits, the Florida Supreme Court did not find a discovery violation. Wuornos v. State, 644 So.2d 1000 (Fla. 1994).

3. There is no discovery violation if the state does not disclose to the defense an oral, unrecorded statement of a state witness made to the prosecuting attorney. The Rules do not provide for such a disclosure. Johnson v. State, 545 So.2d 411, 412 (Fla. 3d DCA 1989).

B. EXCLUDING A WITNESS

1. To impose the severe remedy of excluding a witness due to a discovery violation, the trial judge must determine whether the violation resulted in substantial prejudice to the opposing party. Fedd v. State, 461 So.2d 1384, 1385 (Fla. 1st DCA 1984).

2. The exclusion of a witness is a drastic remedy which should only be used upon the showing of a willful, substantial disregard of discovery rules which results in prejudice. State v. Tascarella, 580 So.2d 154 (Fla. 1991).

3. While a trial judge has the discretion to exclude a witness, exclusion is the most extreme sanction and should only be imposed in the most extreme cases, such as when a violation is purposeful, prejudicial, and with the intent of thwart justice. O'Brian v. State, 454 So.2d 675 So.2d 677 (Fla. 5th DCA 1984). It is generally considered an abuse of discretion for a trial judge to exclude a witness from testifying instead of granting a recess and allowing the aggrieved party to interview the witness to ascertain whether they would be prejudiced by allowing the witness to testify. See, Streeter v. State, 323 So.2d 16, 17 (Fla. 3d DCA 1975).

4. Where the state called two previously undisclosed rebuttal witnesses changing the theory of the state's case after the defendant testified, procedural prejudice was unavoidable unless the rebuttal witnesses were excluded from testifying. The trial judge's failure to exclude the testimony of the rebuttal witnesses under these circumstances resulted in a reversal. Hatcher v. State, 568 So.2d 472, 474-5 (Fla. 1st DCA 1990).

5. After opening statements and direct examination were completed, the defense sought to call two undisclosed witnesses to testify that someone else confessed to the crime. The trial court excluded their testimony, because the evidence was of massive import and that the state would be substantially prejudiced by the introduction of the testimony without prior notice. The Fourth District Court of Appeal concluded that the trial court erred, and reversed and remanded for a new trial. Even though the trial court conducted a Richardson hearing, the appeals court noted that, "Since the testimony sought to be introduced by the witnesses in the instant case was exculpatory in nature, exclusion of the testimony would deny [the defendant] his fundamental right to defend himself in violation of the Sixth Amendment." The appeals court further noted that, "When exculpatory evidence is sought to be introduced in violation of the discovery rules, and remedies which would allow the trial to proceed are insufficient, the proper course of action is to declare a mistrial." By its decision, the appeals court specifically stated that it was not suggesting that under these circumstances the witnesses should have been allowed to testify. Rather, the appropriate remedy under such circumstances is a mistrial. Mattear v. State, 657 So.2d 46 (Fla. 4th DCA 1995). Cf. Hatcher v. State, 568 So.2d 472, 474-5 (Fla. 1st DCA 1990) (The state sought to present the testimony of an undisclosed witness, and exclusion of the testimony was determined by the appeals court to be the appropriate remedy.) - Query: A double standard - one for the state and one for the defense?

6. Where the failure to provide photographs was, at most, negligent, and not a willful or malicious violation, and there was no claim of the defendant's constitutional rights being violated, the sanction of excluding all the testimony relating to the photographs was excessive. State v. Kerr, 562 So.2d 840 (Fla. 4th DCA 1990).

C. MISTRIAL

After conducting a Richardson hearing, the trial court incorrectly found that the defendant violated the discovery rules by failing to provide the state with handwritten notes of its defense-witness psychologist (such notes are exempt from discovery, as they are merely working materials from which a report or statement may be made). The trial court, sua sponte, declared a mistrial because the state was deprived of an opportunity of obtaining and calling a rebuttal psychologist witness to refute the defense expert. Since the trial court's underlying decision finding a discovery violation was in error, there was no manifest necessity for the declaration of a mistrial, and the defendant did not consent to the mistrial, double jeopardy bars the defendant's retrial. Snow v. Fowler, 662 So.2d 1295 (Fla. 3d DCA 1995).

D. DISMISSAL

A dismissal of charges was an excessive sanction for the state's failure to comply with the defendant's discovery request. The defendant was not significantly prejudiced and the speedy trial period had not yet run. State v. Powell, 566 So.2d 588 (Fla. 3d DCA 1990).

XLIII. PROCEDURAL PREJUDICE

A. The purpose of a Richardson hearing is to determine if procedural prejudice, rather than substantive prejudice, has occurred. Wilcox v. State, 367 So.2d 1020, 1023 (Fla. 1979); Lee v. State, 538 So.2d 63 (Fla. 2d DCA 1989). An examination of procedural prejudice focuses on two aspects:

1. The court must determine whether the violation impaired the defendant's ability to prepare for trial.

2. The court must consider the nature of the violation in fixing a sanction. Thompson v. State, 565 So.2d 1311, 1317 (Fla. 1990).

B. Procedural prejudice may result if the violation deprives the aggrieved party time to gather rebuttal evidence. Wilcox v. State, 367 So.2d 1020, 1023 (Fla. 1979).

C. The distinction between substantive and procedural prejudice in the context of discovery violations continues to be valid. State v. Schopp, 653 So.2d 1016, 1019 (Fla. 1995).

D. "Procedural Prejudice" for appellate purposes occurs if there is a reasonable possibility that the defendant's trial preparation or strategy would have been materially different had the violation not occurred. Trial preparation or strategy should be considered materially different if it reasonably could have benefited the defendant. In making this determination every conceivable course of action must be considered. State v. Schopp, 653 So.2d 1016, 1020 (Fla. 1995) (receding from per se reversal rule of Smith v. State, 500 So.2d 124 (Fla. 1986), and adopting a modified harmless error analysis, as set forth therein, to be applied to Richardson violations).

XLIV. DEFENDANT CALLING WITNESS LISTED BY THE STATE

The defense called as its own witness a police officer listed by the state, but not by the defense. The appellate court concluded that by listing the officer as its own witness, the state was in a position to expect the defense to call him. Therefore, excluding the officer without ascertaining what procedural prejudice would have resulted by his testimony was an error requiring a reversal and remand. McDugle v. State, 591 So.2d 660, 661 (Fla. 3d DCA 1991).


XLV. HARMLESS ERROR (Failure to Conduct a Richardson Hearing)

A. The Florida Supreme Court states that it "never held that the failure to conduct a Richardson hearing always results in an unfair trial. Rather, [it] established the per se reversal rule based on [the Court's] assumption that 'no appellate court can be certain that errors of this type are harmless.'" State v. Schopp, 653 So.2d 1016, 1020 (Fla. 1995)(receding from per se reversal rule of Smith v. State, 500 So.2d 124 (Fla. 1986), and adopting a modified harmless error analysis, as set forth therein, to be applied to Richardson violations).

B. In determining whether a Richardson violation is harmless, the appellate court must consider whether there is a reasonable possibility that the discovery violation procedurally prejudiced the defense. Only if an appellate court can say beyond a reasonable doubt that the defense was not procedurally prejudiced by the discovery violation can the error be considered harmless. State v. Schopp, 653 So.2d 1016, 1020 (Fla. 1995) (receding from per se reversal rule of Smith v. State, 500 So.2d 124 (Fla. 1986), and adopting a modified harmless error analysis, as set forth therein, to be applied to Richardson violations).

C. The failure to conduct a Richardson hearing is reversible error unless the appellate court concludes beyond a reasonable doubt that the defense was not prejudiced procedurally. Mason v. State, 654 So.2d 1225, 1227 (Fla. 2d DCA 1995).

D. Harmless error was not found after the defendant constructed his opening statement based upon erroneous discovery provided by the prosecution. The appellate court could not say beyond a reasonable doubt that the defense was not procedurally prejudiced by the discovery violation, even though the trial court conducted a Richardson inquiry. Either the erroneous evidence should have been excluded or the defendant's Motion for a Mistrial should have been granted. McArthur v. State, 671 So.2d 867 (Fla. 4th DCA 1996), applying the guidance provided by the Court in State v. Schopp, 653 So.2d 1016 (Fla. 1995).

XLVI. APPELLATE REVIEW of DISCOVERY VIOLATIONS

A. The Florida Supreme Court recognizes a three pronged inquiry when Richardson issues are presented on appeal:

1. Did a discovery violation occur?

2. Was a Richardson hearing requested?

3. Did the trial judge satisfy the dictates of Richardson?

Suggs v. State, 644 So.2d 64 (Fla. 1994).

B. Additionally, the Florida Supreme Court directs the appellate courts in determining whether a Richardson violation is harmless to consider whether there is a reasonable possibility that the discovery violation procedurally prejudiced the defense. As used in this context, the defense is procedurally prejudiced if there is a reasonable possibility that the defendant's trial preparation or strategy would have been materially different had the violation not occurred. Trial preparation or strategy should be considered materially different if it could have reasonably benefited the defendant. In making this determination, every conceivable course of action must be considered. If the reviewing court finds that the violation prejudiced the defense or if the record is insufficient to determine that the defense was not materially affected, the error must be considered harmful. Only if an appellate court can say beyond a reasonable doubt that the defense was not procedurally prejudiced by the discovery violation can the error be considered harmless. State v. Schopp, 653 So.2d 1016, 1020 (Fla. 1995) (receding from per se reversal rule of Smith v. State, 500 So.2d 124 (Fla. 1986), and adopting a modified harmless error analysis, as set forth therein, to be applied to Richardson violations).