STATE OF FLORIDA, PETITIONER,
v.
RICHARD SYLVESTER JAMES, RESPONDENT
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The Florida Supreme Court held that discovery depositions taken under Florida Rules of Criminal Procedure 3.220(d) are not admissible as substantive evidence at trial, even when the witness has died or become unavailable, because the rules expressly limit their use to impeachment and contradiction of witness testimony.
No. Discovery depositions may not be used as substantive evidence in a criminal trial. The rule plainly limits their use to contradicting or impeaching the testimony of the deponent as a witness, and this limitation is dispositive regardless of whether a confrontation clause violation occurs.
[1] Discovery depositions taken under Florida Rule of Criminal Procedure 3.220(d) may not be used as substantive evidence in a criminal trial.
[2] The purpose of discovery depositions under Florida Rule of Criminal Procedure 3.220(d) is limited to contradicting or impeaching the testimony of the deponent as a witnes…
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Join FLexlaw to unlock all legal intelligence“discovery depositions "may be used by any party for the purpose of contradicting or impeaching the testimony of the deponent as a witness."”
Establishes the plain language limitation on use of discovery depositions in criminal procedure rules
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Join FLexlaw to unlock all legal intelligenceJames was charged with burglary, attempted sexual battery, and robbery. The defendant's counsel took a discovery deposition of the victim under Florid…
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McDonald, justice.
The Fifth District Court of Appeal has certified the following question as being of great public importance:1
Is a discovery deposition taken under Florida Rules of Criminal Procedure 3.220(d) by defendant’s counsel, with defendant present or with his presence waived, admissible in evidence against defendant at the trial of the criminal charge against him when the witness has died or is otherwise unavailable for trial, in the light of the decision of the United States Supreme Court in Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980).
The answer is no.
James was convicted of burglary, attempted sexual battery, and robbery. Defense counsel deposed the victim under Florida Rule of Criminal Procedure 3.220(d). The victim died before trial, and the state sought to introduce her discovery deposition at trial. The trial court allowed introduction of the deposition. The district court, relying on State v. Basiliere, 353 So. 2d 820 (Fla.1977), reversed, but, upon consideration of Ohio v. Roberts,
certified the present question.
Basiliere also involved the use of a discovery deposition in a trial before which the victim died. Basiliere was incarcerated and was not present at the deposition. We held under those conditions that use of the deposition at trial violated the United States Constitution’s Sixth Amendment Confrontation Clause and the Florida Rules of Criminal Procedure.
The state contends that Basiliere does not control the present case. First, it argues that Basiliere’s right of confrontation was violated because he was incarcerated and was not allowed to attend the deposition. James, on the other hand, was not incarcerated, and, under Roberts, his right of confrontation was not otherwise violated. Second, the state argues that Basiliere’s holding that the rules of criminal procedure do not allow discovery depositions to be used substantively at trial was based on the facts of Basiliere, which constituted a confrontation clause violation. Here, it is argued, such an interpretation need not be applied, because there has been no confron tation clause violation. Therefore, the rules should be construed to permit the instant use of a discovery deposition.
Under the present rules of criminal procedure, the deposition was used for an improper purpose. The rule plainly states that discovery depositions “may be used by any party for the purpose of contradicting or impeaching the testimony of the deponent as a witness.” (Emphasis supplied.) Compare Fla.R.Crim.P. 3.220(d) (discovery depositions) and 3.190(j) (depositions to perpetuate testimony) with Fla.R. Civ.P. 1.330 (depositions in a civil trial). We hold that discovery depositions may not be used as substantive evidence in a criminal trial. Since this holding is dispositive of this case, we decline to rule on the assertion that the use of the deposition in this case violates the confrontation provision of the sixth amendment.
The certified question is answered in the negative, and this case is remanded to the district court for proceedings consistent with our holding.
It is so ordered.
SUNDBERG, C. J., and ADKINS, BOYD and OVERTON, JJ., concur. ENGLAND and ALDERMAN, JJ., dissent.
. James v. State, 400 So. 2d 571 (Fla. 5th DCA 1980).
. 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980). Roberts sustained an Ohio statute authorizing the use of preliminary hearing testimony at trial under limited conditions. The testimony so used in Roberts was for rebuttal only.
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Citator
Cited By (19 total)
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Rodriguez v. State, 609 So. 2d 493 (Fla. 1992)…tion or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination is excluded from the definition of hearsay. Relying on this Court’s decision in State v. James, 402 So. 2d 1169 (Fla.1981), wherein we held that discovery depositions were not admissible as substantive evidence in criminal cases absent compliance with Florida Rule of Criminal Procedure 3.190(j) which governs the taking of depositions to perpetuate testimony,…1 / 2
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State v. Green, 667 So. 2d 756 (Fla. 1995)…timony can be used substantively at trial may have a chilling effect on a lawyer’s questioning of such a witness. We have previously concluded that “discovery depositions may not be used as substantive evidence in a criminal trial.” State v. James, 402 So. 2d 1169, 1171 (Fla.1981). We reached that holding based on the fact that rule 3.220 “plainly states that discovery depositions ‘may be used by any party for the purpose of contradicting or impeaching the testimony of the deponent as a witness,’ ” id. (quoti…
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Smith v. State, 606 So. 2d 641 (Fla. 1st DCA 1992)…f discovery is improper under the Florida Rules of Criminal Procedure. Terrell v. State, 407 So. 2d 1039 (Fla. 1st DCA 1981) (discovery deposition erroneously admitted at trial when court determined witness was unavailable). See also State v. James, 402 So. 2d 1169, 1171 (Fla.1981) (holding that discovery depositions may not be used as substantive evidence in criminal trials). And see Barnett v. State, 444 So. 2d 967 (Fla. 1st DCA 1983); Clark v. State, 572 So. 2d 929 (Fla. 5th DCA 1990); Campos v. State, 489…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Ohio v. Roberts, 448 U.S. 56 (U.S. 1980)
- State v. Basiliere, 353 So. 2d 820 (Fla. 1977)
- James v. State, 400 So. 2d 571 (Fla. 5th DCA 1980)