Zimmerman v. State, 38 Fla. L. Weekly D1204a (Fla. 5th DCA June 3, 2013):  The attorney for the Martin family, Benjamin Crump, will be deposed in the criminal case.  Crump interviewed a witness over the phone and recorded it.  That witness apparently was on the phone with Martin moments before his death.

george zimmerman, trayvon martin
Benjamin Crump

When subpoenaed for deposition, Crump failed to appear but instead submitted a15-page affidavit of his involvement.  The trial court would not compel Crump to testify at deposition, finding that he was an “opposing counsel.”  REVERSED.  Come on in and have a seat at the depo table, Counselor.

The Florida criminal appeal court found that protection for “opposing counsel”only applies to counsel actually within the same case, and is designed to prevent the disclosure of litigation strategy.  Crump in not an attorney in the criminal case, so he is not protected.  Further, because Crump himself disclosed the recorded phone call to the media, there is no attorney-client confidentiality that he can claim.  The Fifth District Court of Appeal held that

any deposition of Crump is to be limited to inquiry of circumstances surrounding the interview of Witness 8 and the contents of such interview. Defense counsel may not inquire into Crump’s mental impressions regarding Witness 8, nor may counsel inquire as to the reasons why Crump conducted the interview in the manner in which he did. Additionally, we believe the work product privilege precludes defense counsel from making inquiry as to the reason(s) Crump attempted to locate Witness 8 and the methods employed to do so.

This seems like a no-brainer to me.  Crump has made himself a witness by injecting himself into the criminal investigation so early, and has shot himself in the foot by trying to grab some airtime and disclosing work product information to the media.

For more on criminal discovery depositions, see Fla. R. Crim. P. 3.220.

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