NCDD Journal Case Highlights from San Francisco DUI Attorney Paul Burglin

 Posted on April 28, 2014 in DUI

Participation in Florida’s Discovery Scheme Mandates Defense Disclosure of Independent Blood Analysis Even If Expert Not On Witness List

Kidder v. State , 117 So.3d 1166 (2013) (No. 2D12-3535)

Florida District Court of Appeal (2 ^nd District)

In Florida, a defendant’s election to participate in statutory discovery (which includes depositions) triggers a reciprocal requirement of disclosure. This includes the blood-alcohol report of a defense expert even if the defense does not intend to call him or her as witness. If the defense does not elect to participate, the only discovery that must be disclosed by the prosecution is Brady material (i.e., exculpatory discovery). In that circumstance, the prosecution does not have to send a blood split to a defense expert for independent analysis. Yet the Florida Court, while recognizing that this presents a Hobson’s Choice to the defense (have the blood sample retested, but disclose any incriminating result to the prosecution), finds no Fifth or Sixth Amendment problem with the mandatory disclosure and rejects the contention that it’s work product.

NOTE: Federal Rule of Criminal Procedure 16(b)(1)(B), and most state discovery statutes, only require disclosure of such a report if the defense intends to call the expert as a witness.