In Re AMENDMENTS TO FLORIDA RULE OF CRIMINAL PROCEDURE 3.220

Supreme Court of Florida
____________

No. SC13-1541
____________

IN RE: AMENDMENTS TO FLORIDA
RULE OF CRIMINAL PROCEDURE 3.220.

[May 29, 2014]

PER CURIAM.

This matter is before the Court, on the Court’s own motion, for

consideration of amendments to Florida Rule of Criminal Procedure 3.220

(Discovery). See Fla. R. Jud. Admin. 2.140(d). We have jurisdiction. See art. V,

§ 2(a), Fla. Const.

The Florida Innocence Commission (Commission),1 in its final report issued

on June 25, 2012, recommended that rule 3.220 be amended to include “informant

witnesses” in the category of witnesses that the prosecution must disclose to the

1. Following the filing of a “Petition for a Rule Establishing an Actual
Innocence Commission,” then-Chief Justice Canady established the Florida
Innocence Commission by Administrative Order AOSC10-39 on July 2, 2010.
The Commission was “established to conduct a comprehensive study of the causes
of wrongful conviction and of measures to prevent such convictions.” The
Commission is no longer active.
defense, as well as to require the State to disclose certain material or information

obtained from such witnesses. Florida Innocence Commission, Final Report to the

Supreme Court of Florida, at 90-92, 166-67, and Appendix G (June 25, 2012)

(Final Report). 2 The Court referred the matter to the Florida Supreme Court’s

Criminal Court Steering Committee (Steering Committee) for consideration. After

the Steering Committee recommended that amendments to rule 3.220 were not

needed, the Court, on its own motion, decided to consider amendments to rule

3.220 consistent with the Commission’s proposals. The Court published the

Commission’s proposed amendments for comment. One comment was received

from the Criminal Procedure Rules Committee (Rules Committee), which agreed

with the Steering Committee that the amendments were unnecessary.

We disagree with the Steering Committee and the Rules Committee. We

agree with the Commission that rule 3.220 should be amended to include more

detailed disclosure requirements with respect to informant witnesses, because

informant witnesses are not currently specifically treated under the rule and they

constitute the basis for many wrongful convictions. See Final Report, at 66.

First, we amend rule 3.220(b)(1)(A)(i) to include a new type of witness that

must be disclosed by the prosecution—i.e., informant witnesses, whether in

2. The Commission’s Final Report may be accessed online at
http://www.flcourts.org/core/fileparse.php/248/urlt/finalreport2012.rtf.

-2-
custody or not, who offer testimony concerning the statements of a defendant about

the issues for which the defendant is being tried. We also add court commentary to

rule 3.220 to clarify that new subdivision (b)(1)(A)(i)(8) is not intended to limit in

any manner the discovery obligations otherwise provided for under the rule.

In addition, under new subdivision (b)(1)(M), the State must disclose

whether it has “any material or information that has been provided by an informant

witness” which includes the following five types of material or information:

(i) the substance of any statement allegedly made by the
defendant about which the informant witness may testify;

(ii) a summary of the criminal history record of the informant
witness;

(iii) the time and place under which the defendant’s alleged
statement was made;

(iv) whether the informant witness has received, or expects to
receive, anything in exchange for his or her testimony;

(v) the informant witness’ prior history of cooperation, in
return for any benefit, as known to the prosecutor.

Finally, we add the following court commentary pertaining to new

subdivision (b)(1)(M):

[T]he Florida Innocence Commission recognized the impossibility of
listing in the body of the rule every possible permutation expressing a
benefit by the state to the informant witness. Although the term
“anything” is not defined in the rule, the following are examples of
benefits that may be considered by the trial court in determining
whether the state has complied with its discovery obligations. The
term “anything” includes, but is not limited to, any deal, promise,

-3-
 inducement, pay, leniency, immunity, personal advantage,
vindication, or other benefit that the prosecution, or any person acting
on behalf of the prosecution, has knowingly made or may make in the
future.

Given the incidence of wrongful convictions involving “jailhouse

informants” as stated by the Innocence Commission in its Final Report,3 the

amendments to rule 3.220 will provide for the disclosure of information

specifically relating to informant witnesses. This information is readily available

to the prosecution and will not be overly burdensome to disclose.

Accordingly, we amend rule 3.220 as reflected in the appendix to this

opinion. New language is indicated by underscoring; deletions are indicated by

struck-through type. The amendments shall take effect at 12:01 a.m. on July 1,

2014.

It is so ordered.

3. In its Final Report, the Innocence Commission states in pertinent part as
follows:
According to the Innocence Project, an in-custody informant
(“jailhouse informant”) testified in over 15% of wrongful conviction
cases later overturned through DNA testing. Of the exonerees
released from death row, 45.9% were convicted, in part, due to false
informant testimony. This makes fabricated testimony a leading cause
of wrongful convictions in capital cases. Further studies have shown
that informant perjury was a factor in nearly 50% of wrongful murder
convictions.

Final Report, at 49.

-4-
POLSTON, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, LABARGA,
and PERRY, JJ., concur.

THE FILING OF A MOTION FOR REHEARING SHALL NOT ALTER THE
EFFECTIVE DATE OF THESE AMENDMENTS.

Original Proceeding – Florida Rules of Criminal Procedure

Melanie L. Casper, Chair, Criminal Procedure Rules Committee, West Palm
Beach, Florida; John F. Harkness, Jr., Executive Director, and Heather S. Telfer,
Staff Liaison, The Florida Bar, Tallahassee, Florida,

Responding with comments

-5-
 APPENDIX

RULE 3.220. DISCOVERY

(a) [No changes]

(b) Prosecutor’s Discovery Obligation.

(1) Within 15 days after service of the Notice of Discovery, the prosecutor
shall serve a written Discovery Exhibit which shall disclose to the defendant and
permit 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, and (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)-(iii) [No changes]

(B)-(L) [No changes]

(M) whether the state has any material or information that has been
provided by an informant witness, including:

-6-
 (i) the substance of any statement allegedly made by the
defendant about which the informant witness may testify;

(ii) a summary of the criminal history record of the informant
witness;

(iii) the time and place under which the defendant’s alleged
statement was made;

(iv) whether the informant witness has received, or expects to
receive, anything in exchange for his or her testimony;

(v) the informant witness’ prior history of cooperation, in
return for any benefit, as known to the prosecutor.

(c)-(o) [No changes]

Committee Notes

1968 Adoption – 1998 Amendment. [No changes]

Court Commentary

2014 Amendment. The amendment to subdivision (b)(1)(A)(i)(8) is not intended
to limit in any manner whatsoever the discovery obligations under the other
provisions of the rule. With respect to subdivision (b)(l )(M)(iv), the Florida
Innocence Commission recognized the impossibility of listing in the body of the
rule every possible permutation expressing a benefit by the state to the informant
witness. Although the term “anything” is not defined in the rule, the following are
examples of benefits that may be considered by the trial court in determining
whether the state has complied with its discovery obligations. The term “anything”
includes, but is not limited to, any deal, promise, inducement, pay, leniency,
immunity, personal advantage, vindication, or other benefit that the prosecution, or
any person acting on behalf of the prosecution, has knowingly made or may make
in the future.

1996 Amendment – 1999/2000 Amendment. [No changes]

-7-