Finally, Clarity on Defense Responsibility to Disclose Statements or Reports from Experts

Florida Rule of Criminal Procedure 3.220 is clear that both the State and Defense must disclose statements or reports of experts that the party intends to use at trial or hearing.  (See the Rules here)  

What has not been clear - to both practitioners and appellate courts alike- is whether the Defense is required to disclose to the State those statements and reports of experts that it does not intend to use at trial or hearing.  Most of this ambiguity comes from the Second District Court of Appeals' decision in Kidder v. State, 117 So.3d 1166 (Fla. 2d DCA 2013).  In Kidder, the Second District ruled that, based upon the plain language of the rule, Kidder was required to disclose to the State the results of a blood alcohol test performed by an expert retained by the Defense, even though the defense did not intend to use the report, nor call the expert as a witness, at trial. Read full opinion here

Prior to today's Amendment, a defendant's obligation to disclose statements or reports of experts (found in Fla. R. Crim. P. 3.220(d)(1)(B)(ii) ) required the defense to disclose

"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." 

A decision issued last week by the Florida Supreme Court, however, changed this.  By accepting and approving The Florida Bar’s Criminal Procedure Rules Committee's proposal to amend Florida Rule of Criminal Procedure Rule 3.220, the Florida Supreme Court is making it clear that the defense must only disclose to the State those statements or reports that it intends to use at trial or hearing. 

The amended Rule reads as follows:

"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."

This Amendment is effective immediately upon its release. 

In practice, this change may assist a defense attorney in his/her analysis of possible expert consultations, without fear that a disadvantageous report or finding will irreparably harm a client's defense.