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Expert Witness Controversy in Florida Criminal Trials

The Florida Appellate Courts and the Florida Supreme Court have tightened the screw on many Circuit and County Court judges, along with ill-advised Assistant State Attorneys, when the issue is brought to their attention that prosecutors are relying on expert witnesses that are neither listed in their discovery as experts nor do not qualify as experts. This issue of non-experts testifying falsely through their testimony at trial, with the Judge’s blessing who declared them as experts in the first place, allows in many instances the prosecutor to prove their case in chief that many times they would not otherwise be able to show. Again, the normal matriculation from Assistant State Attorney to judge is the major reason why these horrible errors occur; that allow a departure from the essential foundation of justice.

Through the last two years or so, the Florida criminal courtrooms have witnessed way-ward judges, allowing almost any person to be qualified as an expert. This type of witness boot strapping usually occurs over objection, by the criminal defense trial attorney, but like most objections by the criminal defendant in a trial setting, the judge denies and sides with the state. The criminal cases that are seeing the major influx of expert witnesses testifying wrongly, because of prosecutorial discovery violations and not properly qualifying as an expert witness are in: Sexual Battery; Sexual Assault and Sexual motivated crimes. The non- expert, allowed wrongly to testify as an expert, occurs often in Florida Sex crimes. Florida prosecutors in sex crimes have persistently relied on witnesses like: DCF workers; child care advocates; and law enforcement officers and deputy sheriffs; all of who are not properly trained schooled and therefore, do not qualify as an expert under the rules of evidence.

In a recent appellate decision, the Appellate court stated that the trial court “abused its discretion” in allowing the testimony of two undesignated experts testify as experts for the State. See Debord v. State, 39 Fla. L. Weekly D1979a (Fla. 1st DCA 2014). Under the Florida Rules of Criminal Procedure 3.220 the prosecutor must adhere to many rules of discovery and the one at issue here is the Prosecutor’s discovery obligation of providing within 15 days after service of the Defendant’s Notice to participate in Discovery, serving to the defendant and permitting 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 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. The names and addresses of persons listed shall be clearly designated in the following categories:
      • (i) Category A. These witnesses shall 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 codefendant, which shall 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.(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.

As the rule clearly states, the prosecutor must list the expert witnesses they intend to call at trial and further provide their curriculum vitae or resume. Additionally, the prosecutor is also ordered by the Florida Rules, to provide a copy of reports or statements of experts made in connection with the particular case. The harm to the criminal defendant or accused of not having this expert information, before trial, is that the State alongside with the Judge conducts a trial of ambush.

If the expert witness is known to the criminal defendant or criminal trial lawyer, then the lawyer can set a deposition of the expert witness; can check into the background of the State’s Expert witness to bring out biases on cross examination. Moreover, the criminal defendant may then elicit and pay for the testimony of his or her own “expert” witness in an attempt to balance the scales of testimony and justice. The Appellate court went on to reason in Debord, as many other Appellate courts have also said, that trial courts abuse their discretion and the errors are not harmless, when such violations of the Florida Criminal Rules of Procedure occur.

Criminal Defense Attorney, Andrew D. Stine, has been in the Florida courtrooms trying sexual crimes and all other serious felonies, along with filing Appeals to the State and Federal Appellate Courts for over a decade. West Palm Beach Criminal Appellate Attorney, Andrew D. Stine, has a proven track record in the trial courtrooms, appellate courtrooms and in filing emergency writs in both the State and Federal Courts. This appellate and writ knowledge has sharpened Palm Beach Criminal Defense Attorney, Andrew D. Stine’s trial skills, to a razors edge. Hire Stine or Do the Time.

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