WELCOME TO THE OFFICIAL RICHARD E GERSTEIN JUSTICE BUILDING BLOG. THIS BLOG IS DEDICATED TO JUSTICE BUILDING RUMOR, HUMOR, AND A DISCUSSION ABOUT AND BETWEEN THE JUDGES, LAWYERS AND THE DEDICATED SUPPORT STAFF, CLERKS, COURT REPORTERS, AND CORRECTIONAL OFFICERS WHO LABOR IN THE WORLD OF MIAMI'S CRIMINAL JUSTICE. THIS BLOG HAS BEEN CALLED "THE DEFINITIVE BLOG ON MIAMI CRIMINAL LAW" BY THE NY TIMES, THE WASHINGTON POST, THE POPE, AND DONALD TRUMP WHO ALSO ONCE SAID IT WAS "REALLY GREAT". POST YOUR COMMENTS, OR SEND RUMPOLE A PRIVATE EMAIL AT HOWARDROARK21@GMAIL.COM

Friday, June 14, 2013

DISCOVERY QUIZ

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:

"Ms. Kidder is not constitutionally entitled to a discovery system that operates only to [her] benefit."

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. 



22 comments:

Anonymous said...

Rump nailed it with that quote. The state will be using that and saying that trying to drumbeat it into the small brain of every judge that sits on the bench.

Anonymous said...

A day without a post about Milt is like a day without ....well I was going to use a term laden with sexual innuendo right out of the Clinton/Monica Lewinsky scandal, but then I remembered the new rules, so I will finish it with.... "Like a day without sunshine".

Anonymous said...

I could turn this truck around on the Jersey turnpike and be at the Taj in two hours.....

Anonymous said...

Maybe the lawyer should have asked for a court order making the blood test his secret before it was done.

The blood result must have been the same cuz the lawyer didn't want to use it so, what's the big deal.

I bet the crim rules committee changes the rule.

This opinion is not a big deal.

Anonymous said...

7:09 AM - Rounders. Great film, missed the Texas Hold 'Em craze by a few years. Would have been a blockbuster if released in the mid 2000s.

Anonymous said...


Rumpole. You will recall that I posted a comment after the Heat were blown out in game three. I told you I would be a fan, win or lose. I predicted a win in game four. And two more after that.

All I got to say is:

33
32
20
Equals. A big HEAT win.

HEAT FAN

Anonymous said...

Check raising tourists. Stacks and stacks of checks....

Anonymous said...

I;ve shumied it all day rump. Woke up late. Big cuban breakfast at a cafe. Got my hair cut. Picked up 8K in cash from the office safe for the weekend. Now 9 holes on the key, and then an evening sail on the boat. A few six packs are cooling. Who are these losers who want to be judges when you can have this life?

Anonymous said...


Rumpole. The least you could have done with this post is give a Hat Tip to FACDL List Serv as they were the first to point out the opinion at 7:33 am on Thursday.

Anonymous said...

I agree. I've shumied twice today.

Anonymous said...

to 9:45am.....you can't ask judge for blood sample to get secret test...you have to notify the state.

Rumpole said...

Yeah like I'm even on the listserv. I get listserv posts when people copy them and email them to me. I don't pay due.

Anonymous said...

Ive been waiting for an ofac license for 3 months and can not receive payment until the license arrives. Ive been working the case on the if come. Has anyone had the same problem? This seems to violate the 6th amendment.

Anonymous said...


You're not on the List Serv, AND

LEBRON wasn't the top scorer in Game Four,

AND

Judge Soto is not really Chief Judge

AND

The Fins didn't go undefeated in 1972 and win the SB 14-7

AND

Chief Justice Roberts isn't actually the CJ of SCOTUS

AND

Anonymous said...

Rumpole is lying when he says he is not on the listserve. He is an FACDL member.

Anonymous said...

I don't know why you are complaining Rump. You've probably taken depositions on a DUI Manslaughter when the rules of discovery do not give you permission to just go ahead and do so.

Raleigh v. State, 46 So.3d 1018 (Fla. 2nd DCA 2010).

Anonymous said...

What's worse- going to court and getting the ol'Huck-a-Buck, or not going and getting the ol'Shumie-doomie-do?

A drunken debate arose last night.

Anonymous said...

Are you kidding me? The ol'Huck-a-buck in federal court is a thousand times worse than the ol'shumie-doomie-do.

Anonymous said...

Whenever I watch the US Open I think of Old Tom Langingham, a criminal defense attorney from the 1950's and 1960's and inveterate golf hustler. He probably took more money from tourists and traveling pros on the courses around Miami in the 1960' than most pros made on the tour. I personally saw him hustle a 10,000 skin. And he lived off the 50-100 Nassau which back then was a lot of money. I am pretty sure he played as an amateur in a few us opens. Either at Olympic, Oak Hill, or Baltusrol in the late 1960's.

The guy hovered between 275 and 300 pounds but he was a trained athlete. He ran 15-20 miles a week, lifted weights (very rare for that time) and even did some stretching and yoga (extremely rare for those days) but boy could he drink. If he couldn't beat a golfer, out came the Johnny Walker and he would just drink the guy under the table. Sometimes literally.

Great memories. Great guy. Eventually cashed out a private pension and took up hustling golf in Hawaii.

Anonymous said...

I remember the guy as being rumored to being the first guy around to quote and collect on a million dollar fee. His second defense of (three) for one of the Quntinilla brothers in their drug/murder spree. He won all three. In one of them he had that famous move where he asked for five minutes of rebuttal closing argument and then sat quietly for about four minutes. Then he got up, ambled over to the jury box and drawled "folks, I didn't say nothin in rebuttal because y'all heard the closin of the prosecutor and I jus think rebuttal should be for cases where the prosecutor say somethin worthwhile."

Then he ambled back to his seat and plopped down and mopped his brow and nodded at the judge who chuckled and charged the jury. NG in about an hour. The prosecutor was steaming. His face was red.

Anonymous said...

Shumie sighting : BLT on the beach.

Anonymous said...

False and repeated shumie sightings are the first of the seven seals of the appocolypse.