Deposition Reform: Is the Cure Worse than the Problem?

In 1996, Florida changed the rules for criminal defendants to gather information before trial. These changes might make the entire pretrial process in Florida unconstitutional. Before the changes, defendants could only ask for depositions if they showed the testimony was important and the witness wouldn’t give a statement. In 1972, this rule was changed to allow unlimited depositions without permission. This change happened while a criminal defendant in Dade County was challenging the constitutionality of Florida’s pretrial procedures. The case made its way to the U.S. Supreme Court, which said that Florida’s pretrial procedures, including the right to depositions, were constitutional. In 1987, the Florida Department of Law Enforcement recommended getting rid of discovery depositions in criminal cases because they believed it led to abuse of witnesses and was too costly. In response, the Florida Legislature suggested that a commission be appointed to consider different issues related to discovery depositions in criminal cases, such as protecting victims and witnesses and finding ways to save money and time. The Supreme Court wanted to improve how legal depositions were done in Florida, so they asked a group of experts to look into it. After studying the issue, the group made a lot of recommendations to change the rules. The Supreme Court agreed with most of the recommendations and made new rules to protect witnesses and make the process fairer for everyone involved. However, some people think the new rules take away an important part of the legal process and might cause problems in court. During the 1996 legislative session, there was a push to get rid of defendants’ ability to take depositions. Prosecutors and law enforcement said it was to protect victims and witnesses, but defense lawyers said it helped make the criminal justice system more efficient. The Supreme Court supported keeping depositions. After the legislature didn’t approve the change, the Attorney General, state attorneys, U.S. attorneys, and others asked the Florida Supreme Court to consider getting rid of or changing the rules about depositions. They had to submit their proposed changes by June 1, 1996. The court was considering changing the rules for depositions in criminal cases. The petitioners wanted to limit depositions to only certain serious felony cases and only allow depositions for specific types of witnesses. A special committee studied the issue and suggested categorizing witnesses for deposition purposes, but their recommendation was rejected. Many groups, including public defenders, judges, and lawyers, opposed the proposed changes. In the end, the court decided not to make any changes to the deposition rules. The Criminal Procedure Rules Committee proposed changes to the deposition rule, but they were not fair. They said only the state had to classify witnesses, not the defense. This made it harder for the defense to depose witnesses. The Supreme Court approved these changes, so now the rules for depositions are not fair for both sides. The state has new rules for listing witnesses in a criminal case. They have to put each witness into one of three categories. Category A includes important witnesses like eyewitnesses and experts, and the defense can question them without permission. Category C includes witnesses who just did basic tasks or who the prosecutor doesn’t plan to call to testify. Category B includes everyone else. The defense needs a good reason to question category B witnesses, and they can’t question category C witnesses unless they prove they were put in the wrong category. The rule used to let both sides question the other’s witnesses, but now only the state can question the defense’s witnesses without permission, and that seems unfair. The U.S. Supreme Court ruled that the state cannot require the defendant to disclose their evidence while keeping their own evidence secret. The court said that both the defendant and the state must have the same chances to discover evidence before trial. The changes to Florida’s pretrial procedures may be challenged in court because they don’t treat the state and the defendant fairly. Supporters of the rule changes say that Florida is one of the few states that allows defense discovery depositions. But they don’t mention that Florida is also one of the few states that doesn’t require a fair determination of probable cause before pressing charges. If the rule changes are found to be unconstitutional, Florida may have to go back to having fair probable cause hearings or using grand juries for all serious cases. We should question if just a few examples of abuse of the deposition process are enough to risk Florida’s entire pretrial procedure.

Source: https://www.floridabar.org/the-florida-bar-journal/deposition-reform-is-the-cure-worse-than-the-problem/