Kidder v. State, 38 Fla. L. Weekly D1274a (Fla. 2d DCA June 12, 2013): This is a scary decision. Nutshell: for the first time in Florida legal history, the Second DCA has ruled that a defendant who participates in discovery must disclose to the State the reports of experts hired to assist the defense – regardless of whether the expert is to be called at trial, and regardless of whether they are damning to the defense!!!!! Yes, you read it right. First case in Florida to make this finding.
The Second DCA relied on the “plain meaning” of Rule 3.220 (Discovery), stating that the rule mandates disclosure notwithstanding whether the expert will be called at trial or not. Therefore, even if the expert completely screws the defendant, the defendant has to disclose said screwage. Fifth Amendment right against self-incrimination? Does not apply, as the defendant chose to participate in discovery. Work product? Nah.
The concern of the judges seems to be the “damned if you do, damned if you don’t” theory: if defense counsel hires an expert that doesn’t help the defense, has to be disclosed, cest la vie; if defense counsel does not hire an expert to assist the defense, then defense counsel is ineffective and the Sixth Amendement right to effective counsel is violated (and defendant gets a new trial). The opinion calls for the Criminal rules committee to change the rule to mandate disclosure of expert reports only if the expert is going to be called at trial. Why now, Second DCA? We’ve all been in agreement for 40 years that experts only had to be disclosed if they were going to be called at trial. Apparently before today, that right against self-incrimination meant something.
This is a mess. Now, prosecutors are going on a fishing expedition to invade the attorney-client privilege and work product, no doubt to make inquiry if there was an expert retained (motions to compel? under-oath inquiries of defense attorneys?). This is a no-win scenario. The Florida Supreme Court cannot permit this highly unjust result to stand.
Click here for a pdf of the entire opinion: Kidder.