BOBBY HUDSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Florida appellate court affirmed Hudson's criminal conviction while raising a procedural question about the applicability of the Johnson test to cross-examination regarding police report omissions in light of changed discovery rules since 1973.
The court affirmed the conviction, noting that under the Johnson test there was no error. However, the court observed that because discovery rules have changed dramatically since 1973 to require production of all police reports, the rationale underlying Johnson no longer exists, and objections to questions about report omissions should be analyzed under traditional relevancy and probative value rules rather than the Johnson test.
[1] Cross-examination on the absence of information in a police report is permissible only when the omitted information possesses singular importance to a material and critic…
[2] The rationale for limiting the production and use of police reports, based on the need to protect sensitive investigative information and encourage candid reporting, is u…
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Join FLexlaw to unlock all legal intelligence“cross-examination on the absence of something in a police report is appropriate only when there is "some singular importance attaching to the point in question, which goes to a material and critical fact in serious contention in the trial."”
Establishes the Johnson test standard limiting cross-examination on police report omissions
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceHudson was convicted after trial. The court does not specify the underlying crime or detailed facts, focusing instead on the procedural issue of wheth…
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PER CURIAM.
We affirm appellant’s conviction and write only to raise the question, albeit not addressed by the parties, as to the effect of Florida Rule of Criminal Procedure 3.220(b)(1)(B) (1996) upon the test in State v. Johnson, 284 So. 2d 198 (Fla.1973), which this court recently applied in Harper v. State, 677 So. 2d 72 (Fla. 4th DCA 1996).
Under Johnson, cross-examination on the absence of something in a police report is appropriate only when there is “some singular importance attaching to the point in question, which goes to a material and critical fact in serious contention in the trial.” Id. at 200. The standard in Johnson applies to “production and use.” Id. at 200 (emphasis added). The reason offered by the court in Johnson for limiting the production and use of police reports was the importance of limiting the availability of police reports. Id. at 200.
We must also bear in mind that police reports and documents often include leads to other cases and other suspects. This information must be protected in order to afford fair pursuit of such involvement by others and the solution of other offenses. These important objectives can be destroyed or defeated if police reports are made so readily available; the police would understandably be hesitant to enter freely in reports what might be of help later on if they were not generally protected.
Id at 200 (emphasis added). Further, the court stated the limited production and use was required to justify “breaching the normally protected police reports.” Id. at 200 (emphasis added).
However, the Florida Rules of Criminal Procedure regarding discovery have changed so dramatically since 1973 that the entire rationale upon which Johnson was based no longer exists. In 1973 the prosecutor’s discovery obligation with regard to statements was limited to “the defendant’s written or recorded statements” and “results and reports of physical or mental examinations, and of scientific tests, or experiments made in connection with the particular case.” Fla. R.Crim. P. 3.220(a)(1), (2) (1973). The prosecutor was not obligated to produce police reports in general. Thus it made sense for the Florida Supreme Court in Johnson to limit production and use of the police reports to situations involving critical facts in serious contention in the trial.
Since 1989, prosecutors are obligated to produce “all police and investigative reports of any kind prepared for or in connection with the case.” Fla. R.Crim. P. 3.220(b)(1)(B) (1996). The justification upon which Johnson is based (not breaching normally protected police reports) appears no longer to exist. Because the reports are no longer immune from production it seems more appropriate for objections to questions regarding omissions in the reports to be based on the traditional rules regarding relevancy and probative value. Under Johnson, there was no error in this ease. If we were free to apply a relevancy test, any error was harmless.
GLICKSTEIN and DELL, JJ., and OFTEDAL, Associate Judge, concur.
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Citator
Cited By
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Varas v. State, 815 So. 2d 637 (Fla. 3d DCA 2001)…iction be affirmed on a theory of harmless error. There was no evidentiary error. . In a never-subsequently-cited decision, the Fourth District stated that Johnson has been overruled by an amendment to the criminal discovery rules. Hudson v. State, 682 So. 2d 666, 667 (Fla. 4th DCA 1996). However, the Fourth District has since followed the Johnson decision as being controlling on the issue of negative impeachment. McBean v. State, 688 So. 2d 383 (Fla. 4th DCA 1997). The reasoning of the Hudson decision is u…
Authorities Cited
- State v. Johnson, 284 So. 2d 198 (Fla. 1973)
- Harper v. State, 677 So. 2d 72 (Fla. 4th DCA 1996)