Rule 3.220. DISCOVERY

RULE 3.220. DISCOVERY

(a)

Notice of Discovery. After the filing of the charging

document, a defendant may elect to participate in the discovery

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process provided by these rules, including the taking of discovery

depositions, by filing with the court and serving on the prosecuting

attorney a “Notice of Discovery” which binds both the prosecution

and defendant to all discovery procedures contained in these rules.

Participation by a defendant in the discovery process, including the

taking of any deposition by a defendant or the filing of a public

records request under chapter 119, Florida Statutes, for law

enforcement records relating to the defendant’s pending

prosecution, which are nonexempt as a result of a codefendant’s

participation in discovery, is an election to participate in discovery

and triggers a reciprocal discovery obligation for the defendant. If

any defendant knowingly or purposely shares in discovery obtained

by a codefendant, the defendant is deemed to have elected to

participate in discovery.

(b)

Prosecutor’s Discovery Obligation.

(1)

Within 15 days after service of the Notice of

Discovery, the prosecutor must serve a written Discovery Exhibit

which must disclose to the defendant and permit the defendant to

inspect, copy, test, and photograph the following information and

material within the state’s possession or control, except that any

property or material that portrays sexual performance by a child,

constitutes generated child pornography, or constitutes child

pornography may not be copied, photographed, duplicated, or

otherwise reproduced so long as the state attorney makes the

property or material reasonably available to the defendant or the

defendant’s attorney:

(A)

a list of the names and addresses of all

persons known to the prosecutor to have information that may be

relevant to any offense charged or any defense thereto, or to any

similar fact evidence to be presented at trial under section

90.404(2), Florida Statutes

produced so long as the state attorney makes the

property or material reasonably available to the defendant or the

defendant’s attorney:

(A)

a list of the names and addresses of all

persons known to the prosecutor to have information that may be

relevant to any offense charged or any defense thereto, or to any

similar fact evidence to be presented at trial under section

90.404(2), Florida Statutes. The names and addresses of persons

listed must be clearly designated in the following categories:

(i)

Category A. These witnesses must

include (1) eye witnesses, (2) alibi witnesses and rebuttal to alibi

witnesses, (3) witnesses who were present when a recorded or

unrecorded statement was taken from or made by a defendant or

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codefendant, which must be separately identified within this

category, (4) investigating officers, (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, (7) expert witnesses who have not provided a

written report and a curriculum vitae or who are going to testify,

and (8) informant witnesses, whether in custody, who offer

testimony concerning the statements of a defendant about the

issues for which the defendant is being tried.

(ii)

Category B. All witnesses not listed in

either Category A or Category C.

(iii) Category C. All witnesses who performed

only ministerial functions or whom the prosecutor does not intend

to call at trial and whose involvement with and knowledge of the

case is fully set out in a police report or other statement furnished

to the defense;

(B)

the statement of any person whose name is

furnished in compliance with the preceding subdivision

in

either Category A or Category C.

(iii) Category C. All witnesses who performed

only ministerial functions or whom the prosecutor does not intend

to call at trial and whose involvement with and knowledge of the

case is fully set out in a police report or other statement furnished

to the defense;

(B)

the statement of any person whose name is

furnished in compliance with the preceding subdivision. The term

“statement” as used herein includes a written statement made by

the person and signed or otherwise adopted or approved by the

person and also includes any statement of any kind or manner

made by the person and written or recorded or summarized in any

writing or recording. The term “statement” is specifically intended to

include all police and investigative reports of any kind prepared for

or in connection with the case, but must not include the notes from

which those reports are compiled;

(C)

any written or recorded statements and the

substance of any oral statements made by the defendant, including

a copy of any statements contained in police reports or report

summaries, together with the name and address of each witness to

the statements;

(D)

any written or recorded statements and the

substance of any oral statements made by a codefendant;

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(E)

those portions of recorded grand jury minutes

that contain testimony of the defendant;

(F)

any tangible papers or objects that were

obtained from or belonged to the defendant;

(G)

whether the state has any material or

information that has been provided by a confidential informant;

(H)

whether there has been any electronic

surveillance, including wiretapping, of the premises of the

defendant or of conversations to which the defendant was a party

and any documents relating thereto;

(I)

whether there has been any search or seizure

and any documents relating thereto;

(J)

reports or statements of experts made in

connection with the particular case, including results of physical or

mental examinations and of scientific

c

surveillance, including wiretapping, of the premises of the

defendant or of conversations to which the defendant was a party

and any documents relating thereto;

(I)

whether there has been any search or seizure

and any documents relating thereto;

(J)

reports or statements of experts made in

connection with the particular case, including results of physical or

mental examinations and of scientific tests, experiments, or

comparisons;

(K)

any tangible papers or objects that the

prosecuting attorney intends to use in the hearing or trial and that

were not obtained from or that did not belong to the defendant;

(L)

any tangible paper, objects, or substances in

the possession of law enforcement that could be tested for DNA;

and

(M) whether the state has any material or

information that has been provided by an informant witness,

including:

(i)

the substance of any statement allegedly

made by the defendant about which the informant witness may

testify;

(ii)

a summary of the criminal history record

of the informant witness;

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(iii) the time and place under which the

defendant’s alleged statement was made;

(iv)

whether the informant witness has

received, or expects to receive, anything in exchange for his or her

testimony;

(v)

the informant witness’s prior history of

cooperation, in return for any benefit, as known to the prosecutor.

(2)

If the court determines, in camera, that any police

or investigative report contains irrelevant, sensitive information or

information interrelated with other crimes or criminal activities and

the disclosure of the contents of the police report may seriously

impair law enforcement or jeopardize the investigation of those

other crimes or activities, the court may prohibit or partially restrict

the disclosure.

(3)

The court may prohibit the state from introducing

into evidence any of the foregoing material not disclosed, so as to

secure and maintain fairness in the just determination of the cause.

osure of the contents of the police report may seriously

impair law enforcement or jeopardize the investigation of those

other crimes or activities, the court may prohibit or partially restrict

the disclosure.

(3)

The court may prohibit the state from introducing

into evidence any of the foregoing material not disclosed, so as to

secure and maintain fairness in the just determination of the cause.

(4)

As soon as practicable after the filing of the

charging document the prosecutor must disclose to the defendant

any material information within the state’s possession or control

that tends to negate the guilt of the defendant as to any offense

charged, regardless of whether the defendant has incurred

reciprocal discovery obligations.

(c)

Disclosure to Prosecution.

(1)

After the filing of the charging document and

subject to constitutional limitations, the court may require a

defendant to:

(A)

appear in a lineup;

(B)

speak for identification by witnesses to an

offense;

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(C)

be fingerprinted;

(D)

pose for photographs not involving re-

enactment of a scene;

(E)

try on articles of clothing;

(F)

permit the taking of specimens of material

under the defendant’s fingernails;

(G)

permit the taking of samples of the defendant’s

blood, hair, and other materials of the defendant’s body that

involves no unreasonable intrusion thereof;

(H)

provide specimens of the defendant’s

handwriting; and

(I)

submit to a reasonable physical or medical

inspection of the defendant’s body.

(2)

If the personal appearance of a defendant is

required for the foregoing purposes, reasonable notice of the time

and location of the appearance must be given by the prosecuting

attorney to the defendant and his or her counsel. Provisions may be

made for appearances for such purposes in an order admitting a

defendant to bail or providing for pretrial release.

inspection of the defendant’s body.

(2)

If the personal appearance of a defendant is

required for the foregoing purposes, reasonable notice of the time

and location of the appearance must be given by the prosecuting

attorney to the defendant and his or her counsel. Provisions may be

made for appearances for such purposes in an order admitting a

defendant to bail or providing for pretrial release.

(d)

Defendant’s Obligation.

(1)

If a defendant elects to participate in discovery,

either through filing the appropriate notice or by participating in

any discovery process, including the taking of a discovery

deposition, the following disclosures must be made:

(A)

Within 15 days after receipt by the defendant

of the Discovery Exhibit furnished by the prosecutor under

subdivision (b)(1)(A) of this rule, the defendant must 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 or hearing. When the prosecutor subpoenas a witness whose

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name has been furnished by the defendant, except for trial

subpoenas, the rules applicable to the taking of depositions apply.

(B)

Within 15 days after receipt of the prosecutor’s

Discovery Exhibit the defendant must serve a written Discovery

Exhibit which must disclose to and permit the prosecutor to

inspect, copy, test, and photograph the following information and

material that is in the defendant’s possession or control:

the defendant, except for trial

subpoenas, the rules applicable to the taking of depositions apply.

(B)

Within 15 days after receipt of the prosecutor’s

Discovery Exhibit the defendant must serve a written Discovery

Exhibit which must disclose to and permit the prosecutor to

inspect, copy, test, and photograph the following information and

material that is in the defendant’s possession or control:

(i)

the statement of any person listed in

subdivision (d)(1)(A), other than that of the defendant;

(ii)

reports or statements of experts, that the

defendant intends to use as a witness at a trial or hearing, made in

connection with the particular case, including results of physical or

mental examinations and of scientific tests, experiments, or

comparisons; and

(iii) any tangible papers or objects that the

defendant intends to use in the hearing or trial.

(2)

The prosecutor and the defendant must perform

their obligations under this rule in a manner mutually agreeable or

as ordered by the court.

(3)

The filing of a motion for protective order by the

prosecutor will automatically stay the times provided for in this

subdivision. If a protective order is granted, the defendant may,

within 2 days thereafter, or at any time before the prosecutor

furnishes the information or material that is the subject of the

motion for protective order, withdraw the defendant’s notice of

discovery and not be required to furnish reciprocal discovery.

(e)

Restricting Disclosure. The court on its own initiative or

on motion of counsel must deny or partially restrict disclosures

authorized by this rule if it finds there is a substantial risk to any

person of physical harm, intimidation, bribery, economic reprisals,

or unnecessary annoyance or embarrassment resulting from the

disclosure, that outweighs any usefulness of the disclosure to either

party.

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(f)

Additional Discovery. On a showing of materiality, the

court may require such other discovery to the parties as justice may

require.

person of physical harm, intimidation, bribery, economic reprisals,

or unnecessary annoyance or embarrassment resulting from the

disclosure, that outweighs any usefulness of the disclosure to either

party.

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(f)

Additional Discovery. On a showing of materiality, the

court may require such other discovery to the parties as justice may

require.

(g)

Matters Not Subject to Disclosure.

(1)

Work Product. Disclosure must not be required of

legal research or of records, correspondence, reports, or

memoranda to the extent that they contain the opinions, theories,

or conclusions of the prosecuting or defense attorney or members of

their legal staffs.

(2)

Informants. Disclosure of a confidential informant

must not be required unless the confidential informant is to be

produced at a hearing or trial or a failure to disclose the informant’s

identity will infringe the constitutional rights of the defendant.

(h)

Discovery Depositions.

(1)

Generally. At any time after the filing of the charging

document any party may take the deposition on oral examination of

any person authorized by this rule. A party taking a deposition

must give reasonable written notice to each other party and must

make a good faith effort to coordinate the date, time, and location of

the deposition to accommodate the schedules of other parties and

the witness to be deposed. The notice must state the time and the

location where the deposition is to be taken, the name of each

person to be examined, and a certificate of counsel that a good faith

effort was made to coordinate the deposition schedule. Unless a

provision of this rule conflicts with the Florida Rules of Civil

Procedure, the procedure for taking the deposition, including the

scope of the examination, and the issuance of a subpoena for

deposition by an attorney of record in the action, is the same as

that provided in the Florida Rules of Civil Procedure and section

48.031, Florida Statutes

ade to coordinate the deposition schedule. Unless a

provision of this rule conflicts with the Florida Rules of Civil

Procedure, the procedure for taking the deposition, including the

scope of the examination, and the issuance of a subpoena for

deposition by an attorney of record in the action, is the same as

that provided in the Florida Rules of Civil Procedure and section

48.031, Florida Statutes. To protect deponents and the rights of the

parties and to ensure compliance with statutes, the court may enter

orders, including but not limited to the orders allowed by rule

3.220(e) and (l), on motion of a party, the deponent, or on its own

motion, for good cause shown. Any deposition taken under this rule

may be used by any party for the purpose of contradicting or

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impeaching the testimony of the deponent as a witness. The trial

court or the clerk of the court may, upon application by a pro se

litigant or the attorney for any party, issue subpoenas for the

persons whose depositions are to be taken. In any case, including

multiple defendants or consolidated cases, no person may be

deposed more than once except by consent of the parties or by

order of the court issued on good cause shown. A witness who

refuses to obey a duly served subpoena may be adjudged in

contempt of the court from which the subpoena issued.

(A)

The defendant may, without leave of court,

take the deposition of any witness listed by the prosecutor as a

Category A witness or listed by a co-defendant as a witness to be

called at a joint trial or hearing. After receipt by the defendant of

the Discovery Exhibit, the defendant may, without leave of court,

take the deposition of any unlisted witness who may have

information relevant to the offense charged. The prosecutor may,

without leave of court, take the deposition of any witness listed by

the defendant to be called at a trial or hearing

ndant as a witness to be

called at a joint trial or hearing. After receipt by the defendant of

the Discovery Exhibit, the defendant may, without leave of court,

take the deposition of any unlisted witness who may have

information relevant to the offense charged. The prosecutor may,

without leave of court, take the deposition of any witness listed by

the defendant to be called at a trial or hearing.

(B)

No party may take the deposition of a witness

listed by the prosecutor as a Category B witness except on leave of

court with good cause shown. In determining whether to allow a

deposition, the court should consider the consequences to the

defendant, the complexities of the issues involved, the complexity of

the testimony of the witness (e.g., experts), and the other

opportunities available to the defendant to discover the information

sought by deposition.

(C)

A witness listed by the prosecutor as a

Category C witness is not subject to deposition unless the court

determines that the witness should be listed in another category.

(D)

No deposition may be taken in a case in which

the defendant is charged only with a misdemeanor or a criminal

traffic offense when all other discovery provided by this rule has

been complied with unless good cause can be shown to the trial

court. In determining whether to allow a deposition, the court

should consider the consequences to the defendant, the complexity

of the issues involved, the complexity of the witness’s testimony

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(e.g., experts), and the other opportunities available to the

defendant to discover the information sought by deposition.

However, this prohibition against the taking of depositions does not

apply if following the furnishing of discovery by the defendant the

state then takes the statement of a listed defense witness under

section 27.04, Florida Statutes.

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(e.g., experts), and the other opportunities available to the

defendant to discover the information sought by deposition.

However, this prohibition against the taking of depositions does not

apply if following the furnishing of discovery by the defendant the

state then takes the statement of a listed defense witness under

section 27.04, Florida Statutes.

(2)

Transcripts. No transcript of a deposition for which

the state may be obligated to expend funds may be ordered by a

party unless it is in compliance with general law.

(3)

Location of Deposition. Unless the deposition will be

taken by communication technology, depositions of witnesses

residing:

(A)

in the county in which the trial is to take place

must be taken in the building in which the trial will be held, such

other location as is agreed on by the parties, or a location

designated by the court; or

(B)

outside the county in which the trial is to take

place must be taken in a court reporter’s office in the county or

state in which the witness resides, such other location as is agreed

on by the parties, or a location designated by the court.

(4)

Visual Recording and Photographs. For deponents

18 years of age or older, a discovery deposition must not be visually

recorded unless ordered by the court for good cause shown or on

the consent of the parties and the deponent. For deponents less

than 18 years of age, a discovery deposition must be audio-visually

recorded unless otherwise ordered by the court. No deponent may

be photographed during a discovery deposition.

tographs. For deponents

18 years of age or older, a discovery deposition must not be visually

recorded unless ordered by the court for good cause shown or on

the consent of the parties and the deponent. For deponents less

than 18 years of age, a discovery deposition must be audio-visually

recorded unless otherwise ordered by the court. No deponent may

be photographed during a discovery deposition.

(5)

Depositions of Law Enforcement Officers. Subject to

the general provisions of subdivision (h)(1), law enforcement officers

must appear for deposition, without subpoena, on written notice of

taking deposition delivered at the physical address of the law

enforcement agency or department, or the e-mail or other address

designated by the law enforcement agency or department, 7 days

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before the date of the deposition. For the purposes of this

subdivision, if a law enforcement agency agrees to accept written

notice by e-mail, each law enforcement agency must designate e-

mail addresses for agency liaisons that will accept electronic service

of deposition notices on behalf of the agency’s employees. Any

physical address or e-mail address designated by a law enforcement

agency or department for service of notice of deposition must be

provided by the prosecuting attorney with discovery. Law

enforcement officers who fail to appear for deposition after being

served notice as required by the rule may be adjudged in contempt

of court.

(6)

Witness Coordinating Office/Notice of Taking

Deposition. If a witness coordinating office has been established in

the jurisdiction under applicable Florida Statutes, the deposition of

any witness should be coordinated through that office. The witness

coordinating office should attempt to schedule the depositions of a

witness at a time and location convenient for the witness and

acceptable to the parties.

Coordinating Office/Notice of Taking

Deposition. If a witness coordinating office has been established in

the jurisdiction under applicable Florida Statutes, the deposition of

any witness should be coordinated through that office. The witness

coordinating office should attempt to schedule the depositions of a

witness at a time and location convenient for the witness and

acceptable to the parties.

(7)

Defendant’s Physical Presence. A defendant may not

be physically present at a deposition except on stipulation of the

parties or as provided by this rule. The court may order the physical

presence of the defendant on a showing of good cause. The court

may consider:

(A)

the need for the physical presence of the

defendant to obtain effective discovery;

(B)

the intimidating effect of the defendant’s

presence on the witness, if any;

(C)

any cost or inconvenience which may result;

and

(D)

any alternative communication technology

available.

(8)

Telephonic Statements. On stipulation of the parties

and the consent of the witness, the statement of any witness may

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be taken by telephone in lieu of the deposition of the witness. In

such case, the witness need not be under oath. The statement,

however, must be recorded and may be used for impeachment at

trial as a prior inconsistent statement under the Florida Evidence

Code.

(9)

On motion of any party, parent, guardian, attorney,

guardian ad litem, or other advocate for a victim or witness under

the age of 18, a person who has an intellectual disability, or a

sexual offense victim or witness, or on the court’s own motion, the

court can limit interviewing or the conducting of depositions in the

presence of the defendant. The court must consider any fact the

court deems relevant, not limited to age, nature of the offense,

relationship to the defendant, and degree of emotional trauma that

could result as a consequence of the defendant’s presence.

ty, or a

sexual offense victim or witness, or on the court’s own motion, the

court can limit interviewing or the conducting of depositions in the

presence of the defendant. The court must consider any fact the

court deems relevant, not limited to age, nature of the offense,

relationship to the defendant, and degree of emotional trauma that

could result as a consequence of the defendant’s presence.

(10) Deposition of a victim of a sexual offense who is

under the age of 16. A party seeking to take a deposition under this

subdivision must file a written motion with the court. Within 30

days of the filing of the written motion unless agreed upon by the

parties or for good cause shown, the court must conduct a hearing

to determine whether to order the deposition to be conducted. In

determining whether to order the deposition to be conducted, the

court must consider:

(A)

the mental and physical age and maturity of

the victim;

(B)

the nature and duration of the offense;

(C)

the relationship of the victim to the defendant;

(D)

the complexity of the issues involved;

(E)

whether the evidence sought is reasonably

available by other means, including whether the victim was the

subject of a forensic interview related to the sexual offense; and

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(F)

any other factors the court deems relevant to

ensure the protection of the victim and the integrity of the judicial

process.

the complexity of the issues involved;

(E)

whether the evidence sought is reasonably

available by other means, including whether the victim was the

subject of a forensic interview related to the sexual offense; and

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(F)

any other factors the court deems relevant to

ensure the protection of the victim and the integrity of the judicial

process.

(11) Deposition of a victim of a sexual offense who is

under the age of 12. There is a presumption that the taking of a

deposition of a victim of a sexual offense who is under the age of 12

is inappropriate if the state has not filed a notice of intent to seek

the death penalty and a forensic interview of the sexual offense

victim is available to the defendant. In making that determination,

the court may consider the factors set forth in subdivision (h)(9) of

this rule. A party seeking to take a deposition under this

subdivision must file a written motion with the court. Within 30

days of the filing of the written motion unless agreed upon by the

parties or for good cause shown, the court must conduct a hearing

to determine whether to order the deposition to be conducted.

(12) Limitations or conditions on manner and scope of

deposition. If the court orders the deposition to be conducted

pursuant to subdivision (h)(10) or (11), the court may order

limitations or specific conditions such as:

(A)

requiring the defendant to submit proposed

deposition questions to the court for approval prior to commencing

the deposition;

(B)

setting the time and place of the deposition;

(C)

permitting or prohibiting any person from

attending the victim’s deposition;

(D)

limiting the duration of the deposition; or

(E)

any other conditions the court finds just and

appropriate.

specific conditions such as:

(A)

requiring the defendant to submit proposed

deposition questions to the court for approval prior to commencing

the deposition;

(B)

setting the time and place of the deposition;

(C)

permitting or prohibiting any person from

attending the victim’s deposition;

(D)

limiting the duration of the deposition; or

(E)

any other conditions the court finds just and

appropriate.

(13) Court order. The court must enter a written order

finding whether the taking of a deposition under subdivision (h)(10)

or (11) is authorized, and the written order must specify any

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limitations to the manner or scope of the taking of the victim’s

deposition.

(i)

Investigations Not to Be Impeded. Except as is

otherwise provided as to matters not subject to disclosure or

restricted by protective orders, neither the counsel for the parties

nor other prosecution or defense personnel may advise persons

having relevant material or information, except the defendant, to

refrain from discussing the case with opposing counsel or showing

opposing counsel any relevant material, nor may they otherwise

impede opposing counsel’s investigation of the case.

(j)

Continuing Duty to Disclose. If, subsequent to

compliance with the rules, a party discovers additional witnesses or

material that the party would have been under a duty to disclose or

produce at the time of the previous compliance, the party must

promptly disclose or produce the witnesses or material in the same

manner as required under these rules for initial discovery. This

duty includes any additional recorded or unrecorded statements of

any person disclosed under subdivisions (b)(1)(A) or (d)(1)(A) of this

rule that materially alter a written or recorded statement previously

provided under these rules.

(k)

Court May Alter Times. The court may alter the times

for compliance with any discovery under these rules on good cause

shown.

e rules for initial discovery. This

duty includes any additional recorded or unrecorded statements of

any person disclosed under subdivisions (b)(1)(A) or (d)(1)(A) of this

rule that materially alter a written or recorded statement previously

provided under these rules.

(k)

Court May Alter Times. The court may alter the times

for compliance with any discovery under these rules on good cause

shown.

(l)

Protective Orders.

(1)

Motion to Restrict Disclosure of Matters. On a

showing of good cause, the court must at any time order that

specified disclosures be restricted, deferred, or exempted from

discovery, that certain matters not be inquired into, that the scope

of the deposition be limited to certain matters, that a deposition be

sealed and after being sealed be opened only by order of the court,

or make such other order as is appropriate to protect a witness

from harassment, unnecessary inconvenience, or invasion of

privacy, including prohibiting the taking of a deposition. All

material and information to which a party is entitled, however,

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must be disclosed in time to permit the party to make beneficial use

of it.

(2)

Motion to Terminate or Limit Examination. At any

time during the taking of a deposition, on motion of a party or of the

deponent, and on a showing that the examination is being

conducted in bad faith or in such manner as to unreasonably

annoy, embarrass, or oppress the deponent or party, the court in

which the action is pending or the circuit court where the

deposition is being taken may:

(A)

terminate the deposition;

(B)

limit the scope and manner of the taking of the

deposition;

(C)

limit the time of the deposition;

(D) continue the deposition to a later time;

(E) order the deposition to be taken in open court;

and

(F)

impose any sanction authorized by this rule.

If the order terminates the deposition, it may be resumed

thereafter only on the order of the court in which the action is

pending

e the deposition;

(B)

limit the scope and manner of the taking of the

deposition;

(C)

limit the time of the deposition;

(D) continue the deposition to a later time;

(E) order the deposition to be taken in open court;

and

(F)

impose any sanction authorized by this rule.

If the order terminates the deposition, it may be resumed

thereafter only on the order of the court in which the action is

pending. On demand of any party or deponent, the taking of the

deposition must be suspended for the time necessary to make a

motion for an order.

(m) In Camera and Ex Parte Proceedings.

(1)

Any person may move for an order denying or

regulating disclosure of sensitive matters. The court may consider

the matters contained in the motion in camera.

(2)

On request, the court must allow the defendant to

make an ex parte showing of good cause for taking the deposition of

a Category B witness.

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(3)

A record must be made of proceedings authorized

under this subdivision. If the court enters an order granting relief

after an in camera inspection or ex parte showing, the entire record

of the proceeding must be sealed and preserved and be made

available to the appellate court in the event of an appeal.

(n)

Sanctions.

(1)

If, at any time during the course of the proceedings,

it is brought to the attention of the court that a party has failed to

comply with an applicable discovery rule or with an order issued

under an applicable discovery rule, the court may order the party to

comply with the discovery or inspection of materials not previously

disclosed or produced, grant a continuance, grant a mistrial,

prohibit the party from calling a witness not disclosed or

introducing in evidence the material not disclosed, or enter such

other order as it deems just under the circumstances.

r with an order issued

under an applicable discovery rule, the court may order the party to

comply with the discovery or inspection of materials not previously

disclosed or produced, grant a continuance, grant a mistrial,

prohibit the party from calling a witness not disclosed or

introducing in evidence the material not disclosed, or enter such

other order as it deems just under the circumstances.

(2)

Willful violation by counsel or a party not

represented by counsel of an applicable discovery rule, or an order

issued under an applicable discovery rules, subjects counsel or the

unrepresented party to appropriate sanctions by the court. The

sanctions may include, but are not limited to, contempt proceedings

against the attorney or unrepresented party, as well as the

assessment of costs incurred by the opposing party, when

appropriate.

(3)

Every request for discovery or response or objection,

including a notice of deposition made by a party represented by an

attorney, must be signed by at least 1 attorney of record, as defined

by Florida Rule of General Practice and Judicial Administration

2.505, in the attorney’s individual name, whose address must be

stated. A party who is not represented by an attorney must sign the

request, response, or objection and list his or her address. The

signature of the attorney constitutes a certification that the

document complies with Florida Rule of General Practice and

Judicial Administration 2.515

le of General Practice and Judicial Administration

2.505, in the attorney’s individual name, whose address must be

stated. A party who is not represented by an attorney must sign the

request, response, or objection and list his or her address. The

signature of the attorney constitutes a certification that the

document complies with Florida Rule of General Practice and

Judicial Administration 2.515. The signature of the attorney or

party constitutes a certification that the signer has read the

request, response, or objection and that to the best of the signer’s

Florida Rules of Criminal Procedure January 1, 2026

196

knowledge, information, or belief formed after a reasonable inquiry

it is:

(A)

consistent with these rules and warranted by

existing law or a good faith argument for the extension,

modification, or reversal of existing law;

(B)

not interposed for any improper purpose, such

as to harass or to cause unnecessary delay or needless increase in

the cost of litigation; and

(C)

not unreasonable or unduly burdensome or

expensive, given the needs of the case and the importance of the

issues at stake in the litigation.

If a request, response, or objection is not signed, it must be

stricken unless it is signed promptly after the omission is called to

the attention of the party making the request, response, or

objection, and a party may not be obligated to take any action with

respect to it until it is signed.

If a certification is made in violation of this rule, the court, on

motion or on its own initiative, must impose on the person who

made the certification, the firm or agency with which the person is

affiliated, the party on whose behalf the request, response, or

objection is made, or any or all of the above an appropriate

sanction, which may include an order to pay the amount of the

reasonable expenses incurred because of the violation, including a

reasonable attorney’s fee.

n its own initiative, must impose on the person who

made the certification, the firm or agency with which the person is

affiliated, the party on whose behalf the request, response, or

objection is made, or any or all of the above an appropriate

sanction, which may include an order to pay the amount of the

reasonable expenses incurred because of the violation, including a

reasonable attorney’s fee.

(o)

Pretrial Conference.

(1)

The trial court may hold 1 or more pretrial

conferences to consider such matters as will promote a fair and

expeditious trial. The defendant must be present at any pretrial

conference, unless the defendant’s presence is waived in writing or

on the record by the defendant or by the defendant’s counsel with

the defendant’s consent.

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197

(2)

The court may set, and on the request of any party

must set, a discovery schedule, including a discovery cut-off date,

at the pretrial conference.

Committee Notes

1968 Adoption.

(a)(1) This is substantially the same as section 925.05, Florida

Statutes.

(a)(2) This is new and allows a defendant rights which he did

not have, but must be considered in light of subdivision (c).

(a)(3) This is a slight enlargement upon the present practice;

however, from a practical standpoint, it is not an enlargement, but

merely a codification of section 925.05, Florida Statutes, with

respect to the defendant’s testimony before a grand jury.

(b)

This is a restatement of section 925.04, Florida Statutes,

except for the change of the word “may” to “shall.”

red in light of subdivision (c).

(a)(3) This is a slight enlargement upon the present practice;

however, from a practical standpoint, it is not an enlargement, but

merely a codification of section 925.05, Florida Statutes, with

respect to the defendant’s testimony before a grand jury.

(b)

This is a restatement of section 925.04, Florida Statutes,

except for the change of the word “may” to “shall.”

(c)

This is new and affords discovery to the state within the

trial judge’s discretion by allowing the trial judge to make discovery

under (a)(2) and (b) conditioned upon the defendant giving the state

some information if the defendant has it. This affords the state

some area of discovery which it did not previously have with respect

to (b). A question was raised concerning the effect of (a)(2) on FBI

reports and other reports which are submitted to a prosecutor as

“confidential” but it was agreed that the interests of justice would

be better served by allowing this rule and that, after the appropriate

governmental authorities are made aware of the fact that their

reports may be subject to compulsory disclosure, no harm to the

state will be done.

(d) and (e) This gives the defendant optional procedures. (d) is

simply a codification of section 906.29, Florida Statutes, except for

the addition of “addresses.” The defendant is allowed this procedure

in any event. (e) affords the defendant the additional practice of

obtaining all of the state’s witnesses, as distinguished from merely

those on whose evidence the information, or indictment, is based,

Florida Rules of Criminal Procedure January 1, 2026

198

but only if the defendant is willing to give the state a list of all

defense witnesses, which must be done to take advantage of this

rule. The confidential informant who is to be used as a witness

must be disclosed; but it was expressly viewed that this should not

otherwise overrule present case law on the subject of disclosure of

confidential informants, either where disclosure is required or not

required.

f the defendant is willing to give the state a list of all

defense witnesses, which must be done to take advantage of this

rule. The confidential informant who is to be used as a witness

must be disclosed; but it was expressly viewed that this should not

otherwise overrule present case law on the subject of disclosure of

confidential informants, either where disclosure is required or not

required.

(f)

This is new and is a compromise between the philosophy

that the defendant should be allowed unlimited discovery

depositions and the philosophy that the defendant should not be

allowed any discovery depositions at all. The purpose of the rule is

to afford the defendant relief from situations when witnesses refuse

to “cooperate” by making pretrial disclosures to the defense. It was

determined to be necessary that the written signed statement be a

criterion because this is the only way witnesses can be impeached

by prior contradictory statements. The word “cooperate” was

intentionally left in the rule, although the word is a loose one, so

that it can be given a liberal interpretation, i.e., a witness may claim

to be available and yet never actually submit to an interview. Some

express the view that the defendant is not being afforded adequate

protection because the cooperating witness will not have been

under oath, but the subcommittee felt that the only alternative

would be to make unlimited discovery depositions available to the

defendant which was a view not approved by a majority of the

subcommittee. Each minority is expressed by the following

alternative proposals:

Alternative Proposal (1): When a person is charged with an

offense, at any time after the filing of the indictment, information, or

affidavit upon which the defendant is to be tried, such person may

take the deposition of any person by deposition upon oral

examination for the purpose of discovery. The attendance of

witnesses may be compelled by the use of subpoenas as provided by

law

ve proposals:

Alternative Proposal (1): When a person is charged with an

offense, at any time after the filing of the indictment, information, or

affidavit upon which the defendant is to be tried, such person may

take the deposition of any person by deposition upon oral

examination for the purpose of discovery. The attendance of

witnesses may be compelled by the use of subpoenas as provided by

law. The deposition of a person confined in prison may be taken

only by leave of court on such terms as the court prescribes. The

scope of examination and the manner and method of taking such

deposition shall be as provided in the Florida Rules of Civil

Procedure and the deposition may be used for the purpose of

Florida Rules of Criminal Procedure January 1, 2026

199

contradicting or impeaching the testimony of a deponent as a

witness.

Alternative Proposal (2): If a defendant signs and files a written

waiver of his or her privilege against self-incrimination and submits

to interrogation under oath by the prosecuting attorney, then the

defendant shall be entitled to compulsory process for any or all

witnesses to enable the defendant to interrogate them under oath,

before trial, for discovery purposes.

A view was expressed that some limitation should be placed on

the state’s rights under sections 27.04 and 32.20, Florida Statutes,

which allow the prosecutor to take all depositions unilaterally at

any time. It was agreed by all members of the subcommittee that

this right should not be curtailed until some specific time after the

filing of an indictment, information, or affidavit, because

circumstances sometimes require the filing of the charge and a

studied marshalling of evidence thereafter. Criticism of the present

practice lies in the fact that any time up to and during the course of

the trial the prosecutor can subpoena any person to the privacy of

the prosecutor’s office without notice to the defense and there take

a statement of such person under oath

, or affidavit, because

circumstances sometimes require the filing of the charge and a

studied marshalling of evidence thereafter. Criticism of the present

practice lies in the fact that any time up to and during the course of

the trial the prosecutor can subpoena any person to the privacy of

the prosecutor’s office without notice to the defense and there take

a statement of such person under oath. The subcommittee was

divided, however, on the method of altering this situation and the

end result was that this subcommittee itself should not undertake

to change the existing practice, but should make the Supreme

Court aware of this apparent imbalance.

(g)

This is new and is required in order to make effective the

preceding rules.

(h)

This is new and, although it encompasses relief for both

the state and the defense, its primary purpose is to afford relief in

situations when witnesses may be intimidated and a prosecuting

attorney’s heavy docket might not allow compliance with discovery

within the time limitations set forth in the rules. The words,

“sufficient showing” were intentionally included in order to permit

the trial judge to have discretion in granting the protective relief. It

would be impossible to specify all possible grounds which can be

the basis of a protective order. This verbiage also permits a possible

abuse by a prosecution-minded trial judge, but the subcommittee

Florida Rules of Criminal Procedure January 1, 2026

200

felt that the appellate court would remedy any such abuse in the

course of making appellate decisions.

on in granting the protective relief. It

would be impossible to specify all possible grounds which can be

the basis of a protective order. This verbiage also permits a possible

abuse by a prosecution-minded trial judge, but the subcommittee

Florida Rules of Criminal Procedure January 1, 2026

200

felt that the appellate court would remedy any such abuse in the

course of making appellate decisions.

(i)

This is new and, although it will entail additional expense

to counties, it was determined that it was necessary in order to

comply with the recent trend of federal decisions which hold that

due process is violated when a person who has the money with

which to resist criminal prosecution gains an advantage over the

person who is not so endowed. Actually, there is serious doubt that

the intent of this subdivision can be accomplished by a rule of

procedure; a statute is needed. It is recognized that such a statute

may be unpopular with the legislature and not enacted. But, if this

subdivision has not given effect there is a likelihood that a

constitutional infirmity (equal protection of the law) will be found

and either the entire rule with all subdivisions will be held void or

confusion in application will result.

(j)

This provision is necessary since the prosecutor is

required to assume many responsibilities under the various

subdivisions under the rule. There are no prosecuting attorneys,

either elected or regularly assigned, in justice of the peace courts.

County judge’s courts, as distinguished from county courts, do not

have elected prosecutors. Prosecuting attorneys in such courts are

employed by county commissions and may be handicapped in

meeting the requirements of the rule due to the irregularity and

uncertainty of such employment. This subdivision is inserted as a

method of achieving as much uniformity as possible in all of the

courts of Florida having jurisdictions to try criminal cases.

1972 Amendment

not

have elected prosecutors. Prosecuting attorneys in such courts are

employed by county commissions and may be handicapped in

meeting the requirements of the rule due to the irregularity and

uncertainty of such employment. This subdivision is inserted as a

method of achieving as much uniformity as possible in all of the

courts of Florida having jurisdictions to try criminal cases.

1972 Amendment. The committee studied the ABA Standards

for Criminal Justice relating to discovery and procedure before trial.

Some of the standards are incorporated in the committee’s

proposal, others are not. Generally, the standards are divided into 5

parts:

Part I deals with policy and philosophy and, while the

committee approves the substance of Part I, it was determined that

specific rules setting out this policy and philosophy should not be

proposed.

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201

Part II provides for automatic disclosures (avoiding judicial

labor) by the prosecutor to the defense of almost everything within

the prosecutor’s knowledge, except for work product and the

identity of confidential informants. The committee adopted much of

Part II, but felt that the disclosure should not be automatic in every

case; the disclosure should be made only after request or demand

and within certain time limitations. The ABA Standards do not

recommend reciprocity of discovery, but the committee deemed that

a large degree of reciprocity is in order and made appropriate

recommendations.

Part III of the ABA Standards recommends some disclosure by

the defense (not reciprocal) to which the state was not previously

entitled. The committee adopted Part III and enlarged upon it.

Part IV of the Standards sets forth methods of regulation of

discovery by the court. Under the Standards the discovery

mentioned in Parts II and III would have been automatic and

without the necessity of court orders or court intervention

s recommends some disclosure by

the defense (not reciprocal) to which the state was not previously

entitled. The committee adopted Part III and enlarged upon it.

Part IV of the Standards sets forth methods of regulation of

discovery by the court. Under the Standards the discovery

mentioned in Parts II and III would have been automatic and

without the necessity of court orders or court intervention. Part III

provides for procedures of protection of the parties and was

generally incorporated in the recommendations of the committee.

Part V of the ABA Standards deals with omnibus hearings and

pretrial conferences. The committee rejected part of the Standards

dealing with omnibus hearings because it felt that it was

superfluous under Florida procedure. The Florida committee

determined that a trial court may, at its discretion, schedule a

hearing for the purposes enumerated in the ABA Omnibus Hearing

and that a rule authorizing it is not necessary. Some of the

provisions of the ABA Omnibus Hearing were rejected by the Florida

committee, i.e., stipulations as to issues, waivers by defendant, etc.

A modified form of pretrial conference was provided in the proposals

by the Florida committee.

(a)(1)(i)

Same as ABA Standard 2.1(a)(i) and substance of

Standard 2.1(e). Formerly Florida Rule of Criminal Procedure

3.220(e) authorized exchange of witness lists. When considered with

proposal 3.220(a)(3), it is seen that the proposal represents no

significant change.

Florida Rules of Criminal Procedure January 1, 2026

202

rial conference was provided in the proposals

by the Florida committee.

(a)(1)(i)

Same as ABA Standard 2.1(a)(i) and substance of

Standard 2.1(e). Formerly Florida Rule of Criminal Procedure

3.220(e) authorized exchange of witness lists. When considered with

proposal 3.220(a)(3), it is seen that the proposal represents no

significant change.

Florida Rules of Criminal Procedure January 1, 2026

202

(ii)

This rule is a modification of Standard 2.1(a)(ii) and is

new in Florida, although some such statements might have been

discoverable under rule 3.220(f). Definition of “statement” is derived

from 18 U.S.C. § 3500.

Requiring law enforcement officers to include irrelevant or

sensitive material in their disclosures to the defense would not

serve justice. Many investigations overlap and information

developed as a byproduct of one investigation may form the basis

and starting point for a new and entirely separate one. Also, the

disclosure of any information obtained from computerized records

of the Florida Crime Information Center and the National Crime

Information Center should be subject to the regulations prescribing

the confidentiality of such information so as to safeguard the right

of the innocent to privacy.

(iii) Same as Standard 2.1(a)(ii) relating to statements of

accused; words “known to the prosecutor, together with the name

and address of each witness to the statement” added and is new in

Florida.

(iv)

From Standard 2.1(a)(ii). New in Florida.

n Center should be subject to the regulations prescribing

the confidentiality of such information so as to safeguard the right

of the innocent to privacy.

(iii) Same as Standard 2.1(a)(ii) relating to statements of

accused; words “known to the prosecutor, together with the name

and address of each witness to the statement” added and is new in

Florida.

(iv)

From Standard 2.1(a)(ii). New in Florida.

(v)

From Standard 2.1(a)(iii) except for addition of words,

“that have been recorded” which were inserted to avoid any

inference that the proposed rule makes recording of grand jury

testimony mandatory. This discovery was formerly available under

rule 3.220(a)(3).

(vi)

From Standard 2.1(a)(v). Words, “books, papers,

documents, photographs” were condensed to “papers or objects”

without intending to change their meaning. This was previously

available under rule 3.220(b).

(vii) From Standard 2.1(b)(i) except word “confidential” was

added to clarify meaning. This is new in this form.

(viii) From Standard 2.1(b)(iii) and is new in Florida in this

form. Previously this was disclosed upon motion and order.

Florida Rules of Criminal Procedure January 1, 2026

203

(ix) From Standard 2.3(a), but also requiring production of

“documents relating thereto” such as search warrants and

affidavits. Previously this was disclosed upon motion and order.

(x)

From Standard 2.1(a)(iv). Previously available under rule

3.220(a)(2). Defendant must reciprocate under proposed rule

3.220(b)(4).

(xi) Same committee note as (b) under this subdivision.

(2)

From Standard 2.1(c) except omission of words “or would

tend to reduce his punishment therefore” which should be included

in sentencing.

(3)

Based upon Standard 2.2(a) and (b) except Standards

required prosecutor to furnish voluntarily and without demand

while this proposal requires defendant to make demand and

permits prosecutor 15 days in which to respond.

(4)

From Standards 2.5(b) and 4.4. Substance of this

proposal previously available under rule 3.220(h).

reduce his punishment therefore” which should be included

in sentencing.

(3)

Based upon Standard 2.2(a) and (b) except Standards

required prosecutor to furnish voluntarily and without demand

while this proposal requires defendant to make demand and

permits prosecutor 15 days in which to respond.

(4)

From Standards 2.5(b) and 4.4. Substance of this

proposal previously available under rule 3.220(h).

(5)

From Standard 2.5. New in Florida.

(b)(1) From Standard 3.1(a). New in Florida.

(2)

From Standard 3.1(b). New in Florida.

(3)

Standards did not recommend that defendant furnish

prosecution with reciprocal witness list; however, formerly, rule

3.220(e) did make such provision. The committee recommended

continuation of reciprocity.

(4)

Standards did not recommend reciprocity of discovery.

Previously, Florida rules required some reciprocity. The committee

recommended continuation of former reciprocity and addition of

exchanging witness’ statement other than defendants’.

(c)

From Standard 2.6. New in Florida, but generally

recognized in decisions.

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204

(d)

Not recommended by Standards. Previously permitted

under rule 3.220(f) except for change limiting the place of taking the

deposition and eliminating requirement that witness refuse to give

voluntary signed statement.

(e)

From Standard 4.1. New in Florida.

(f)

Same as rule 3.220(g).

(g)

From Standard 4.4 and rule 3.220(h).

(h)

From Standard 4.4 and rule 3.220(h).

(i)

From Standard 4.6. Not previously covered by rule in

Florida, but permitted by decisions.

(j)(1) From Standard 4.7(a). New in Florida except court

discretion permitted by rule 3.220(g).

(2)

From Standard 4.7(b). New in Florida.

(k)

Same as prior rule.

From Standard 4.1. New in Florida.

(f)

Same as rule 3.220(g).

(g)

From Standard 4.4 and rule 3.220(h).

(h)

From Standard 4.4 and rule 3.220(h).

(i)

From Standard 4.6. Not previously covered by rule in

Florida, but permitted by decisions.

(j)(1) From Standard 4.7(a). New in Florida except court

discretion permitted by rule 3.220(g).

(2)

From Standard 4.7(b). New in Florida.

(k)

Same as prior rule.

(l)

Modified Standard 5.4. New in Florida.

1977 Amendment. The proposed change only removes the

comma which currently appears after (a)(1).

1980 Amendment. The intent of the rule change is to

guarantee that the accused will receive those portions of police

reports or report summaries which contain any written, recorded,

or oral statements made by the accused.

1986 Amendment. The showing of good cause under (d)(2) of

this rule may be presented ex parte or in camera to the court.

1989 Amendment. 3.220(a). The purpose of this change is to

ensure reciprocity of discovery. Under the previous rule, the

defendant could tailor discovery, demanding only certain items of

discovery with no requirement to reciprocate items other than those

demanded. A defendant could avoid reciprocal discovery by taking

depositions, thereby learning of witnesses through the deposition

Florida Rules of Criminal Procedure January 1, 2026

205

process, and then deposing those witnesses without filing a demand

for discovery. With this change, once a defendant opts to use any

discovery device, the defendant is required to produce all items

designated under the discovery rule, whether or not the defendant

has specifically requested production of those items.

Former subdivision (c) is relettered (b)

f Criminal Procedure January 1, 2026

205

process, and then deposing those witnesses without filing a demand

for discovery. With this change, once a defendant opts to use any

discovery device, the defendant is required to produce all items

designated under the discovery rule, whether or not the defendant

has specifically requested production of those items.

Former subdivision (c) is relettered (b). Under (b)(1) the

prosecutor’s obligation to furnish a witness list is conditioned upon

the defendant filing a “Notice of Discovery.”

Former subdivision (a)(1)(i) is renumbered (b)(1)(i) and, as

amended, limits the ability of the defense to take depositions of

those persons designated by the prosecutor as witnesses who

should not be deposed because of their tangential relationship to

the case. This does not preclude the defense attorney or a defense

investigator from interviewing any witness, including a police

witness, about the witness’s knowledge of the case.

This change is intended to meet a primary complaint of law

enforcement agencies that depositions are frequently taken of

persons who have no knowledge of the events leading to the charge,

but whose names are disclosed on the witness list. Examples of

these persons are transport officers, evidence technicians, etc.

In order to permit the defense to evaluate the potential

testimony of those individuals designated by the prosecutor, their

testimony must be fully set forth in some document, generally a

police report.

of

persons who have no knowledge of the events leading to the charge,

but whose names are disclosed on the witness list. Examples of

these persons are transport officers, evidence technicians, etc.

In order to permit the defense to evaluate the potential

testimony of those individuals designated by the prosecutor, their

testimony must be fully set forth in some document, generally a

police report.

(a)(1)(ii) is renumbered (b)(1)(ii). This subdivision is amended to

require full production of all police incident and investigative

reports, of any kind, that are discoverable, provided there is no

independent reason for restricting their disclosure. The term

“statement” is intended to include summaries of statements of

witnesses made by investigating officers as well as statements

adopted by the witnesses themselves.

The protection against disclosure of sensitive information, or

information that otherwise should not be disclosed, formerly set

forth in (a)(1)(i), is retained, but transferred to subdivision (b)(1)(xii).

Florida Rules of Criminal Procedure January 1, 2026

206

The prohibition sanction is not eliminated, but is transferred

to subdivision (b)(1)(xiii). “Shall” has been changed to “may” in order

to reflect the procedure for imposition of sanctions specified in

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

The last phrase of renumbered subdivision (b)(2) is added to

emphasize that constitutionally required Brady material must be

produced regardless of the defendant’s election to participate in the

discovery process.

Former subdivision (b) is relettered (c).

Former subdivisions (b)(3) and (4) are now included in new

subdivision (d). An introductory phrase has been added to

subdivision (d). Subdivision (d) reflects the change in nomenclature

from a “Demand for Discovery” to the filing of a “Notice of

Discovery.”

As used in subdivision (d), the word “defendant” is intended to

refer to the party rather than to the person

ubdivision (b) is relettered (c).

Former subdivisions (b)(3) and (4) are now included in new

subdivision (d). An introductory phrase has been added to

subdivision (d). Subdivision (d) reflects the change in nomenclature

from a “Demand for Discovery” to the filing of a “Notice of

Discovery.”

As used in subdivision (d), the word “defendant” is intended to

refer to the party rather than to the person. Any obligations

incurred by the “defendant” are incurred by the defendant’s

attorney if the defendant is represented by counsel and by the

defendant personally if the defendant is not represented.

The right of the defendant to be present and to examine

witnesses, set forth in renumbered subdivision (d)(1), refers to the

right of the defense, as party to the action. The term refers to the

attorney for the defendant if the defendant is represented by

counsel. The right of the defendant to be physically present at the

deposition is controlled by new subdivision (h)(6).

Renumbered subdivision (d)(2), as amended, reflects the new

notice of discovery procedure. If the defendant elects to participate

in discovery, the defendant is obligated to furnish full reciprocal

disclosure.

Subdivision (e) was previously numbered (a)(4). This

subdivision has been modified to permit the remedy to be sought by

either prosecution or defense.

Florida Rules of Criminal Procedure January 1, 2026

207

Subdivision (f) was previously numbered (a)(5) and has been

modified to permit the prosecutor, as well as the defense attorney,

to seek additional discovery.

Former subdivision (c) is relettered (g).

Former subdivision (d) is relettered (h). Renumbered

subdivision (h)(1) has been amended to reflect the restrictions on

deposing a witness designated by the prosecution under (b)(1)(i)

(designation of a witness performing ministerial duties only or one

who will not be called at trial).

secutor, as well as the defense attorney,

to seek additional discovery.

Former subdivision (c) is relettered (g).

Former subdivision (d) is relettered (h). Renumbered

subdivision (h)(1) has been amended to reflect the restrictions on

deposing a witness designated by the prosecution under (b)(1)(i)

(designation of a witness performing ministerial duties only or one

who will not be called at trial).

(h)(1)(i) is added to provide that a deposition of a witness

designated by the prosecutor under (b)(1)(i) may be taken only upon

good cause shown by the defendant to the court.

(h)(1)(ii) is added to provide that abuses by attorneys of the

provisions of (b)(1)(i) are subject to stringent sanctions.

New subdivision (h)(1)(iii) abolishes depositions in

misdemeanor cases except when good cause is shown.

A portion of former subdivision (d)(1) is renumbered (h)(3).

This subdivision now permits the administrative judge or chief

judge, in addition to the trial judge, to designate the place for taking

the deposition.

New subdivision (h)(4) recognizes that children and some

adults are especially vulnerable to intimidation tactics. Although it

has been shown that such tactics are infrequent, they should not

be tolerated because of the traumatic effect on the witness. The

videotaping of the deposition will enable the trial judge to control

such tactics. Provision is also made to protect witnesses of fragile

emotional strength because of their vulnerability to intimidation

tactics.

New subdivision (h)(5) emphasizes the necessity for the

establishment, in each jurisdiction, of an effective witness

coordinating office. The Florida Legislature has authorized the

establishment of such office through section 43.35, Florida

Statutes. This subdivision is intended to make depositions of

Florida Rules of Criminal Procedure January 1, 2026

208

witnesses and law enforcement officers as convenient as possible

for the witnesses and with minimal disruption of law enforcement

officers’ official duties

s

coordinating office. The Florida Legislature has authorized the

establishment of such office through section 43.35, Florida

Statutes. This subdivision is intended to make depositions of

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witnesses and law enforcement officers as convenient as possible

for the witnesses and with minimal disruption of law enforcement

officers’ official duties.

New subdivision (h)(6) recognizes that one of the most frequent

complaints from child protection workers and from rape victim

counselors is that the presence of the defendant intimidates the

witnesses. The trauma to the victim surpasses the benefit to the

defense of having the defendant present at the deposition. Since

there is no right, other than that given by the rules of procedure, for

a defendant to attend a deposition, the Florida Supreme Court

Commission on Criminal Discovery believes that no such right

should exist in those cases. The “defense,” of course, as a party to

the action, has a right to be present through counsel at the

deposition. In this subdivision, the word “defendant” is meant to

refer to the person of the defendant, not to the defense as a party.

See comments to rules 3.220(d) and 3.220(d)(1).

Although defendants have no right to be present at depositions

and generally there is no legitimate reason for their presence, their

presence is appropriate in certain cases. An example is a complex

white collar fraud prosecution in which the defendant must explain

the meaning of technical documents or terms. Cases requiring the

defendant’s presence are the exception rather than the rule.

Accordingly, (h)(6)(i)–(ii) preclude the presence of defendants at

depositions unless agreed to by the parties or ordered by the court.

These subdivisions set forth factors that a court should take into

account in considering motions to allow a defendant’s presence.

New subdivision (h)(7) permits the defense to obtain needed

factual information from law enforcement officers by informal

telephone deposition

ly, (h)(6)(i)–(ii) preclude the presence of defendants at

depositions unless agreed to by the parties or ordered by the court.

These subdivisions set forth factors that a court should take into

account in considering motions to allow a defendant’s presence.

New subdivision (h)(7) permits the defense to obtain needed

factual information from law enforcement officers by informal

telephone deposition. Recognizing that the formal deposition of a

law enforcement officer is often unnecessary, this procedure will

permit such discovery at a significant reduction of costs.

Former subdivisions (e), (f), and (g) are relettered (i), (j), and

(k), respectively.

Former subdivision (h) is relettered (l) and is modified to

emphasize the use of protective orders to protect witnesses from

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harassment or intimidation and to provide for limiting the scope of

the deposition as to certain matters.

Former subdivision (i) is relettered (m).

Former subdivision (j) is relettered (n).

Renumbered (n)(2) is amended to provide that sanctions are

mandatory if the court finds willful abuse of discovery. Although the

amount of sanction is discretionary, some sanction must be

imposed.

(n)(3) is new and tracks the certification provisions of federal

procedure. The very fact of signing such a certification will make

counsel cognizant of the effect of that action.

Subdivision (k) is relettered (o).

Subdivision (l) is relettered (p).

1992 Amendment. The proposed amendments change the

references to “indictment or information” in subdivisions (b)(1),

y, some sanction must be

imposed.

(n)(3) is new and tracks the certification provisions of federal

procedure. The very fact of signing such a certification will make

counsel cognizant of the effect of that action.

Subdivision (k) is relettered (o).

Subdivision (l) is relettered (p).

1992 Amendment. The proposed amendments change the

references to “indictment or information” in subdivisions (b)(1),

(b)(2), (c)(1), and (h)(1) to “charging document.” This amendment is

proposed in conjunction with amendments to rule 3.125 to provide

that all individuals charged with a criminal violation would be

entitled to the same discovery regardless of the nature of the

charging document (i.e., indictment, information, or notice to

appear).

1996 Amendment. This is a substantial rewording of the rule

as it pertains to depositions and pretrial case management. The

amendment was in response to allegations of discovery abuse and a

call for a more cost conscious approach to discovery by the Florida

Supreme Court. In felony cases, the rule requires prosecutors to list

witnesses in categories A, B, and C. Category A witnesses are

subject to deposition as under the former rule. Category B

witnesses are subject to deposition only upon leave of court.

Category B witnesses include, but are not limited to, witnesses

whose only connection to the case is the fact that they are the

owners of property; transporting officers; booking officers; records

and evidence custodians; and experts who have filed a report and

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210

curriculum vitae and who will not offer opinions subject to the Frye

test. Category C witnesses may not be deposed. The trial courts are

given more responsibility to regulate discovery by pretrial

conference and by determining which category B witnesses should

be deposed in a given case.

The rule was not amended for the purpose of prohibiting

discovery

es of Criminal Procedure January 1, 2026

210

curriculum vitae and who will not offer opinions subject to the Frye

test. Category C witnesses may not be deposed. The trial courts are

given more responsibility to regulate discovery by pretrial

conference and by determining which category B witnesses should

be deposed in a given case.

The rule was not amended for the purpose of prohibiting

discovery. Instead, the rule recognized that many circuits now have

“early resolution” or “rocket dockets” in which “open file discovery”

is used to resolve a substantial percentage of cases at or before

arraignment. The committee encourages that procedure. If a case

cannot be resolved early, the committee believes that resolution of

typical cases will occur after the depositions of the most essential

witnesses (category A) are taken. Cases which do not resolve after

the depositions of category A, may resolve if one or more category B

witnesses are deposed. If the case is still unresolved, it is probably

going to be a case that needs to be tried. In that event, judges may

determine which additional depositions, if any, are necessary for

pretrial preparation. A method for making that determination is

provided in the rule.

Additionally, trial judges may regulate the taking of

depositions in a number of ways to both facilitate resolution of a

case and protect a witness from unnecessary inconvenience or

harassment. There is a provision for setting a discovery schedule,

including a discovery cut-off date as is common in civil practice.

Also, a specific method is provided for application for protective

orders.

One feature of the new rule relates to the deposition of law

enforcement officers. Subpoenas are no longer required.

The rule has standardized the time for serving papers relating

to discovery at fifteen days.

Discovery in misdemeanor cases has not been changed.

uding a discovery cut-off date as is common in civil practice.

Also, a specific method is provided for application for protective

orders.

One feature of the new rule relates to the deposition of law

enforcement officers. Subpoenas are no longer required.

The rule has standardized the time for serving papers relating

to discovery at fifteen days.

Discovery in misdemeanor cases has not been changed.

(b)(1)(A)(i) An investigating officer is an officer who has

directed the collection of evidence, interviewed material witnesses,

or who was assigned as the case investigator.

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(h)(1) The prosecutor and defense counsel are encouraged to be

present for the depositions of essential witnesses, and judges are

encouraged to provide calendar time for the taking of depositions so

that counsel for all parties can attend. This will 1) diminish the

potential for the abuse of witnesses, 2) place the parties in a

position to timely and effectively avail themselves of the remedies

and sanctions established in this rule, 3) promote an expeditious

and timely resolution of the cause, and 4) diminish the need to

order transcripts of the deposition, thereby reducing costs.

1998 Amendment. This rule governs only the location of

depositions. The procedure for procuring out-of-state witnesses for

depositions is governed by statute.

2018 Amendment. The amendments to subdivision (j) are a

clarification of the rule based on Scipio v. State, 928 So. 2d 1138

(Fla. 2006), and Washington v. State, 151 So. 3d 544 (Fla. 1st DCA

2014).

Court Commentary

1996 Amendment. The designation of a witness who will

present similar fact evidence will be dependent upon the witness’s

relationship to the similar crime, wrong, or act about which

testimony will be given rather than the witness’s relationship to the

crime with which the defendant is currently charged.

1999/2000 Amendment

d Washington v. State, 151 So. 3d 544 (Fla. 1st DCA

2014).

Court Commentary

1996 Amendment. The designation of a witness who will

present similar fact evidence will be dependent upon the witness’s

relationship to the similar crime, wrong, or act about which

testimony will be given rather than the witness’s relationship to the

crime with which the defendant is currently charged.

1999/2000 Amendment. This rule does not affect requests

for nonexempt law enforcement records as provided in chapter 119,

Florida Statutes, other than those that are nonexempt as a result of

a codefendant’s participation in discovery. See Henderson v. State,

745 So. 2d 319 (Fla. Feb. 18, 1999).

2014 Amendment. The amendment to subdivision

(b)(1)(A)(i)(8) is not intended to limit in any manner whatsoever the

discovery obligations under the other provisions of the rule. With

respect to subdivision (b)(l)(M)(iv), the Florida Innocence

Commission recognized the impossibility of listing in the body of the

rule every possible permutation expressing a benefit by the state to

the informant witness. Although the term “anything” is not defined

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in the rule, the following are examples of benefits that may be

considered by the trial court in determining whether the state has

complied with its discovery obligations. The term “anything”

includes, but is not limited to, any deal, promise, inducement, pay,

leniency, immunity, personal advantage, vindication, or other

benefit that the prosecution, or any person acting on behalf of the

prosecution, has knowingly made or may make in the future.

VII. SUBSTITUTION OF JUDGE