We'll end the week with a little discovery refresher.
Scenario: You are hired to represent a defendant on a DUI Manslaughter case. You invoke discovery. Which rule have you invoked? A) 3.220 B) 3.xyz C) The Rule against perpetuities. (Answer below) *
Having invoked reciprocal discovery, you see that there was a blood sample taken from your client. You retain an ex parte expert, ask for some of the blood sample and your expert conducts tests.
The state: A) Quickly files a motion to compel the report of your expert; B) admires your hard work and shakes your hand after court; C) Asks whether your firm is hiring.
Lets assume the answer is A and the court grants the motion and you quickly file a writ of certiorari with the appellate court. The Appellate court A) Denies the writ and writes that when you invoke reciprocal discovery the report of your private experts must be disclosed; B) Laughs at the circuit court and quickly grants the writ and requires the circuit judge to show cause that s/he has graduated from an accredited law school; C) Discretely inquires during oral argument whether your firm is hiring.
As astounding as it sounds, and this is a warning bell to us as defense attorneys, the answer is A.
The reasoning behind the decision is as follows:
3.220(1)(A) requires the defense to disclose to the prosecution the witnesses who the defense reasonably expects to call at trial.
3.220(1)(B)(ii) requires the defense to disclose to the prosecution the names of experts and the results of tests.
Note that the section on experts is separate and distinct from the section that requires the disclosure of witnesses that the defense "reasonably expects to call" and the plain language of the rule doesn't exempt experts that the defense uses but doesn't expect to call.
The opinion recognizes the Hobson's choice the decision will create for defendants- if you want to use experts to conduct tests, don't invoke reciprocal discovery. The appellate court's response is "tough toenails". And just so you get prepared, here is the quote the state will use in their motions to compel, over and over:
Kidder is not constitutionally entitled to a discovery system that operates only to [her]
Suddenly arraignments became a little more dicey. Now you have some strategic decisions to make.
Enjoy your U.S. Open weekend and happy father's day.
See You In Court.
*If you have to check that the answer is A, it's high time for some CLE.
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