Along the lines of releasing discovery, I too was wondering if the defense can "throw away" incriminating evidence that they won't be using for trial.
Also, does the defense have to turn over depositions to the state? And if so, are those released under the sunshine law? And if so, how come none of Jose's depositions of witnesses have not been released?
Several have asked questions about the Florida "Sunshine Laws," criminal discovery procedures and civil discovery procedures. Okay. It appears there is some confusion here.
Sunshine Laws, also known as Public Records Acts, are a way a private citizen can access public records
held by a governmental agency.
Right off the bat, we see that "Sunshine Laws" do not apply to information held by the criminal defense lawyers. Sunshine laws also do not apply to Mr. John Morgan's deposition records. Mr. John Morgan is representing ZG in the civil discovery. Mr. Morgan is releasing the depositions to the news as a courtesy with the consent of his client. Of course, by releasing them to the media, the records become available to the prosecution.
There is an exception to the sunshine laws in that some records held by governmental agencies are not public. They are specifically defined exclusions to the sunshine laws. The exclusions are defined by statute.
One of these exclusions is records held by a law enforcement agency during the course of the investigation and prior to disclosure either in a court hearing, trial or in pre-trial distribution to the defense attorneys.
The media in Orlando has been requesting public records from the State's Attorney Office. The SA office has been providing them to the media when they become public records; at or near the time the records are provided to defense counsel. However, it is not that the SA is unwilling to give it to media. The information people think they are missing might be expensive items to reproduce such as court transcriptions or transcriptions of deposition tapes. The media may not want to put out that kind of money for everything unless there is high public interest; which appears to be waning.
Criminal defense lawyers do not generally have an obligation to turn over incriminating evidence to the prosecution. However, deliberate destruction of evidence that exists independent of their representation of their client may not be deliberately destroyed. Such deliberate and willful destruction of evidence might violate obstruction of justice laws and be a criminal offense. Say, for example, the criminal defense knew where a gun that was used in a murder was. It is not in the possession of the defense. They don't have to tell the SA about it. However, if that gun comes into their possession, they do have to turn it over to the LE. They may not destroy the gun. Now for a different example. Their client, KC, tells them she murdered Caylee. That would be evidence and admissible as a statement of a party opponent. However, due to the attorney client privilege, the defense does not have to tell the SA about it. However, they cannot thereafter represent in court that she says she is innocent. (They can lie to the media all they want, apparently, if it doesn't violate a State Bar ethical rule.) A final example: The defense obtains a sample of body fluids and tests it for presence of chloroform. They find stunning proof that the deceased person was killed by an overdose of chloroform. They do not have to turn that evidence over to the SA. However, there is a mistake in the report prepared and it says exactly the opposite -- that there was no chloroform in the body fluids. They also cannot use the favorable but false report even if it is disclosed before trial.
Discovery laws and procedure are to assist both the state and the defense to have a fair trial. The idea is a search for the truth, if possible and resolution at some point through the trial system. Trial by ambush is discouraged and could get an attorney who tries that tactic sanctioned. Attorneys exchange all the information they are going to use about the case at trial before the trial. Prosecution has a special duty to give all exculpatory information to the defense even if the SA is not going to use it at trial. (If it is really good exculpatory information it will be carefully evaluated to determine whether or not they will even continue to go forward with the trial.) Defense does not have a duty to share anything (because the burden is on the prosecution to prove the case). That being said, however, there are certain "affirmative defenses" that require disclosure by defense before trial -- these include an alibi defense. There are others. Defense also needs to share their witness list and disclose the expert qualifications and a summary of what the expert witness will testify about.
If an attorney tries to surprise the other side so they can't prepare for it, the remedy is generally a delay until the other side can have the time to prepare to meet the evidence. This is difficult when a jury is in the box. The Judge presides over his or her courtroom and has to make the decision. If it is critical to the defense, the prosecution will be given time. If it is not critical but just voluminous repetition of the same thing in other evidence it might be excluded. The defense counsel might be punished or fined by the court. Needless to say, most good lawyers err on the side of sharing all information in a timely manner.
All of the above just discusses the hard evidence and witness opinions. In addition to this, most lawyers have briefs at the ready on various issues they believe will come up in trial. They research the law in their own state and several other comparable jurisdictions trying to find the majority view, the minority view and the trend in the law. Most lawyers share these ahead of time or the other counsel has seen then before and expects them. They might even discuss their various views in meetings before trial called case management conferences. A judge might even be present.
In addition to all of these duties of discovery and preparing witnesses, then the whole trial has to be orchestrated so that all the subpoenas are issued at the right time so witnesses know when to show up. It is like putting on a huge theater production and everybody has to know their part. No surprises. Neither side wants to look like a bumbling novice in front of the jury.
Someone asked about the timing of the "doc dumps." The media has to pay for the reproduction of the evidence at a cost per page plus transcription and for the staff time to do it. The labor cost is substantial. At this point, the media budget for this story is probably stretched.
