When a defendant alleges the State violated its discovery obligations under Rule 3.220, the trial court must conduct a two-step inquiry.
First, the court must determine whether a discovery violation has actually taken place. Sinclair v. State, 657 So. 2d 1138, 1140 (Fla. 1995).
Suppose the court finds that a discovery violation has occurred. In that case, it must conduct a Richardson hearing to determine “whether the state’s violation was inadvertent or willful, trivial or substantial, and what effect, if any, the violation had on the defense’s ability to properly prepare for trial.” Whitfield v. State, 479 So. 2d 208, 215 (Fla. 4th DCA 1985).
The Richardson hearing is required upon finding a violation because “only after the court has made an inquiry into all of the surrounding circumstances” can the court properly exercise its discretion in determining the appropriate sanction. Richardson v. State, 246 So. 2d 771, 775 (Fla. 1971).
If, however, the court finds that there has been no discovery violation, there is no need to conduct a Richardson hearing. Whitfield, 479 So. 2d at 216; State v. McFadden, 50 So. 3d 1131, 1134 (Fla. 2010).
Failing to Designate a Witness as an Expert
Florida Rule of Criminal Procedure 3.220(b)(1)(A)(i) requires the State to disclose, as Category A witnesses, “expert witnesses who have not provided a written report and a curriculum vitae or who are going to testify.”
Florida courts have interpreted Rule 3.220(b)(1)(A)(i) to require that when a witness is going to testify as an expert, the witness list provided in discovery must specifically designate that person as an expert witness. E.g., Kipp v. State, 128 So. 3d 879, 881 (Fla. 4th DCA 2013).
As the Fourth District Court of Appeal stated in Kipp, “It is not enough to list such witnesses as Category A witnesses. Instead, the state is also required to indicate that the witness will testify as an expert.” Id.
Florida Rule of Criminal Procedure 3.220(j) further provides that “[i]f 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 shall promptly disclose or produce the witnesses or material . . . .”
In Thomas v. State, 63 So. 3d 55 (Fla. 4th DCA 2011), the Fourth District Court of Appeal found a discovery violation where a witness was listed as a Category A witness, but had not been designated as an expert, was permitted to testify at trial as an expert. Id. at 59.
In Luis v. State, the Second District Court of Appeal found the State’s attempt to qualify an officer as an expert witness at trial to be a discovery violation because the officer was only designated as a Category A witness during discovery. 851 So. 2d 773, 776 (Fla. 2d DCA 2003). Therefore, the State commits a discovery violation when it attempts to elicit expert testimony from a witness not previously designated as an expert on its witness list. Id.
For these reasons, if the State fails to designate the agency inspector as an expert witness on its Witness List, then that failure constitutes a discovery violation if the State attempts to elicit expert witness testimony of the witness at trial.
If the defense objects to that discovery violation, the trial court is obligated to conduct a Richardson hearing.
Whether the Failure to Conduct a Richardson Hearing is Harmless
If the court erred in failing to conduct a Richardson hearing, the appellate court must determine whether the trial court’s error was harmless.
The standard for finding that a discovery violation was harmless is “extremely high.” Cox v. State, 819 So. 2d 705, 712 (Fla. 2002)(quoting Pomeranz v. State, 703 So. 2d 465, 468 (Fla. 1997).
When a reviewing court determines that a trial court erred in failing to conduct a Richardson hearing, the appropriate inquiry is whether the error procedurally prejudiced the defense.
The Florida Supreme Court described this analysis in Scipio v. State, 928 So. 2d 1138 (Fla. 2006):
[W]hen reviewing a claim of error based upon a Richardson violation, the reviewing court’s focus should be on procedural and not substantive prejudice . . . .
“As used in this context, the defense is procedurally prejudiced if there is a reasonable possibility that the defendant’s trial preparation or strategy would have been materially different had the violation not occurred.
Trial preparation or strategy should be considered materially different if it reasonably could have benefitted the defendant.
In making this determination, every conceivable course of action should be considered. . . . [I]f the record is insufficient to determine that the defense was not materially affected, the error must be considered harmful.”
928 So. 2d at 1147 (quoting State v. Schopp, 653 So. 2d 1016 (Fla. 1995).
The Florida Supreme Court pronounced in Schopp that “[t]he question of ‘prejudice’ in a discovery context is not dependent upon the potential impact of the undisclosed evidence on the fact finder but rather upon its impact on the defendant’s ability to prepare for trial.” 653 So. 2d at 1019 (quoting Smith v. State, 500 So. 2d 125, 126 (Fla. 1986)).
When conducting this analysis, the Court should analyze whether the defense’s “trial preparation or strategy” would have been materially different had the defendant had the benefit of the missing discovery. Scipio, 928 So. 2d at 1147.
When a reviewing court is left only with the ability to speculate as to what different trial preparation or strategy a defendant would have employed, harmless error has not been shown beyond a reasonable doubt. Id. at 1150.
“Where no Richardson hearing is held, a criminal defendant may be deemed ‘procedurally prejudiced’ on theories the defense was not afforded an explicit opportunity to assert in the trial court . . . .” Hall v. State, 738 So. 2d 374, 379 (Fla. 1st DCA 1999).
The Florida courts have found harmful error where the State does not list a witness as an expert and the trial court fails to conduct a Richardson hearing. See e.g., Kipp, 128 So. 3d at 883 (“the vast majority of cases will not have a record sufficient to support a finding of harmless error”)
In Ward v. State, the Fourth District Court of Appeal found that the State’s failure to list a testifying officer as an expert witness procedurally prejudiced the defendant even though his testimony was brief, reasoning that “the state has an ‘extraordinarily high’ burden in establishing that a discovery violation is harmless.” 165 So. 3d 789, 793 (Fla. 4th DCA 2015).
Additionally, in Bess v. State, 208 So. 3d 1213, 1215 (Fla. 5th DCA 2017), the court held that the trial court’s failure to conduct a Richardson hearing procedurally prejudiced the defendant, where a nurse, who the State failed to designate as an expert, testified to an opinion that contradicted the defense counsel’s theory of the case.
When a discovery violation occurs, and the court does not conduct a Richardson hearing, a criminal defense attorney can raise that issue on the direct criminal appeal.
Attorneys on Discovery Violations in Florida
In a direct appeal after a criminal trial, your appellate attorney will read the entire transcript looking for errors made by the judge or prosecutor.
One of the most common errors that might lead to a new trial occurs when the defense attorney claims at trial that a discovery violation has occurred and the court neglected to conduct a Richardson hearing when it was required to do so.
Our attorneys can help you file a motion for a new trial, a direct appeal, or a motion for post-conviction relief. Contact us for a free and confidential consultation.
This article was last updated on Tuesday, July 7, 2020.