Criminal Procedure - FL

Question 1

What is the difference between a felony, misdemeanor, and noncriminal violation? How do traffic violations fit into the mix?

Answer 1

A felony is any criminal offense punishable by death or imprisonment in a state correctional facility for more than one year. A misdemeanor is any criminal offense punishable by imprisonment in a county correctional facility for not more than one year. (However, violation of county or municipal ordinances are not misdemeanors even if punishable by imprisonment in a county facility.) Only felonies and misdemeanors are considered “crimes.” Noncriminal violations are offenses punishable by no more than a fine, forfeiture, or other civil penalty. Most traffic violations are noncriminal but some may be misdemeanors or felonies.

Question 2

In the criminal context, what does a county court have jurisdiction over

Answer 2

County courts have jurisdiction over misdemeanors (except those joined with felonies), violations of county and municipal ordinances, and first appearance proceedings.

Question 3

In the criminal context, what does a circuit court have jurisdiction over?

Answer 3

Circuit courts have jurisdiction over cases not triable in county court, including all felonies, misdemeanors joined with felonies, juvenile cases, and extraordinary writs

Question 4

What does the FL S Ct have appellate jurisdiction over in the criminal context

Answer 4

The s ct has appellate (either mandatory or discretionary review) jurisdiction over: death penalty cases; cases from lower courts initially construing the validity of a state or federal statute, treaty, or constitutional provision; district court decisions conflicting with other district court or supreme court decisions; extraordinary writs; and questions certified by district courts

Question 5

What is the scope of the right to counsel

Answer 5

The state must offer to provide counsel for indigent or partially indigent persons in cases where conviction is punishable by incarceration. Juvenile offenses and one appeal are included. The state may avoid providing counsel if the offense is not a felony and the judge agrees at least 15 days in advance that the defendant will not be incarcerated

Question 6

When may a defendant waive her right to counsel

Answer 6

Defendant may waive her right to counsel if done knowingly, intelligently, and voluntarily and defendant is mentally competent to conduct trial proceedings. Waiver must be made in court on the record or out of court in writing before two witnesses. Counsel must be offered again at each subsequent stage of the proceedings

Question 7

When is withdrawal of defense counsel permitted

Answer 7

The attorney of record for a defendant may not be relieved of any duties, nor permitted to withdraw, except with approval of the court for good cause

Question 8

What is the minimum standards for attorneys in felony cases

Answer 8

The FL S Ct has adopted minimum standards for attorneys in felony cases. Before an attorney may participate as counsel of record for any adult felony case, the attorney must complete a course approved by the Florida Bar covering the legal and ethical obligations of discovery in a criminal case

Question 9

What is the minimum standards for attorneys in capital cases

Answer 9

There are certain minimum standards for defense attorneys in capital cases. For example, lead counsel must have at least five years- experience in criminal litigation; have tried as lead counsel at least nine complex cases; have experience in using expert witnesses; and have attended at least 12 hours of continuing legal education programs dealing with the defense of capital cases.

Question 10

What are the three ways of compelling a defendant to appear in court and when is each method used.

Answer 10

Arrest warrant - any state or county judge may issue an arrest warrant for a felony or misdemeanor or may order the court clerk to issue a summons for a misdemeanor.
Capias - A judge may issue a capias (bench warrant) when a defendant has failed to appear as required, or when formal charges have been filed by information or indictment and the defendant is neither in custody nor out on bail.
Notice to appear - An arresting officer or booking officer generally may issue a notice to appear in lieu of physical arrest for misdemeanors and violations of municipal or county ordinances unless one of three situations arises

Question 11

What are the three situations in which an arresting officer or booking officer should not issue a notice to appear in lieu of a physical arrest

Answer 11

(i) the accused fails to identify himself or sign a notice to appear;
(ii) the officer reasonably believes the accused’s liberty presents an unreasonable risk of harm to himself or others; or
(iii) the accused is a flight risk, has previously failed to appear, or is suspected of being wanted for another crime

Question 12

What are the duties of the booking officer

Answer 12

If the police arrest the accused and bring him to jail, the booking officer advises the accused of his right to counsel. The booking officer may release the accused on a notice to appear if, after investigation, the officer determines that the accused will likely appear as required. The booking officer considers: the accused’s length of residence in the community, family ties, employment history, character and mental condition, past convictions, and history of appearance at trial

Question 13

What are the rules regarding a first appearance

Answer 13

An arrested person who is not released must be taken before a judicial officer within 24 hours. The state attorney and public defender (if no private counsel) must be given notice of the hearing and must attend. The judicial officer must advise defendant of the charges and her rights to remain silent, to have the assistance of counsel, and to communicate with counsel, family, and friends. The defendant may be advised of her rights by pre-recorded video if the judge affirms that she had the opportunity to view the video and understand the rights explained in it. The officer will appoint counsel or reschedule the appearance to permit defendant to obtain private counsel, as necessary. Right to counsel may be waived by a signed writing. Failure to comply with the 24-hour requirement entitles defendant to release but does not bar prosecution, nor does it affect admissibility of an otherwise lawfully obtained confession where there is no evidence that the delay induced the confession. (Similarly, a child in custody of juvenile authorities against whom an information or indictment is filed must be taken for a first appearance hearing within 24 hours.)

Question 14

What is the scope of right to pretrial release

Answer 14

An accused is entitled to pretrial release except where the offense is punishable by life imprisonment or death and the proof of guilt is evidence or the presumption of guilt is great, or where no conditions of release can reasonably assure defendant’s appearance and community safety

Question 15

What, exactly, is pretrial release

Answer 15

A defendant may be released on recognizance; on monetary bond; into the custody of a supervisory person or organization; under restrictions as to travel, associations, or residence; or on other conditions necessary to ensure appearance. Nonmonetary conditions are favored, except where the defendant’s history and present circumstances indicate that he will fail to appear

Question 16

When may a court order pretrial detention

Answer 16

If the court finds that the defendant poses a threat of harm to the community (e.g., has threatened jurors or witnesses, has been charged with trafficking controlled substances, has been charged with DUI manslaughter, has been sentenced as a violet felony offender, etc.); has previously violated conditions on release or parole; and no condition of release will reasonably assure the defendant’s appearance at subsequent proceedings–then pretrial detention may be motioned for and ordered

Question 17

What is the procedure surrounding pretrial detention

Answer 17

The state may move for pretrial detention when the statutory criteria are met. If defendant has been released and there are exigent circumstances, an arrest warrant will be issued. A hearing must be held in the trial court within five days of the motion or of defendant’s arrest pursuant to the motion (plus continuances of up to five days).

Question 18

What are the defendant’s rights at a detention hearing

Answer 18

At the detention hearing, defendant is entitled to counsel and may present and cross-examine witnesses. Strict rules of evidence do not apply, but a detention order may not be based solely on hearsay. The exclusionary rule applies, and defendant’s testimony may not be used substantively against him at trial. Pretrial detention orders are appealable

Question 19

What is the right to probable cause determination

Answer 19

Persons in custody or under significant restraints on their liberty are entitled to a neutral magistrate’s determination of probable cause. If a person was arrested pursuant to a valid warrant, no further determination is required

Question 20

What are the procedures surrounding a probable cause determination, including what happens when probable cause is not found

Answer 20

For a defendant in custody, a probable cause determination must be made within 48 hours of arrest (two 24-hour extensions are available for good cause), if an arrest warrant was not obtained prior to defendant’s arrest. If necessary proof is available at the time of first appearance, the probable cause determination is to be made at first appearance. A defendant not in custody may file within 21 days of arrest a motion for probable cause determination if her liberty is significantly restrained. The magistrate must make a determination within seven days of the motion. Defendant is released on recognizance if probable cause is not found or no hearing is held, but prosecution is not barred.

Question 21

What does a felony defendant have a right to if not charged within 21 days of arrest, and how does it work

Answer 21

A felony defendant not charged within 21 days of arrest has a right to an adversary preliminary hearing to determine whether probable cause exists to support the felony charges. Witnesses may be summoned and examined. Statements by the defendant may be used against him. If probable cause is found, defendant is held to answer charges. If probable cause is not found, defendant is released unless an information or indictment has been filed, in which case defendant is released on recognizance

Question 22

What happens if a defendant remains in custody and is not charged by information or indictment within 30 days of arrest?

Answer 22

He must be released by the 33rd day unless good cause is shown why a charge has not been filed, in which case he must be released by the 40th day unless formal charges are filed

Question 23

What is the rule for when indictment is used in crimes

Answer 23

Any crime may be, and all capital crimes must be, prosecuted by an indictment returned by a grand jury

Question 24

What is the rule for formally charging a crime by information

Answer 24

The state attorney’s office may prosecute any noncapital crime by filing an information. Misdemeanors and ordinance violations may be prosecuted in county court by information.

Question 25

What is the rule for formally charging a crime by affidavit, docket entry, or notice to appear

Answer 25

Misdemeanors and ordinance violations may be prosecuted in county court by affidavit, docket entry, or notice to appear

Question 26

What are the technical requirements of formally charging a crime (which is often tested on the bar exam)

Answer 26

An indictment or information must allege the essential facts of the offense and recite the law violated. It may use the defendant’s real name or a fictitious name, or a description of the defendant, but must include the defendant’s name, race, gender, and birth date, when known. It also must state that prosecution is brought in the name, and by the authority, of the state of Florida. Formal defects may be amended on motion any time before trial. No count of an indictment or information will be dismissed unless it is so vague and indefinite as to mislead the defendant or expose him after conviction or acquittal to substantial danger of a new prosecution for the same offense. The defendant has a right to a copy of the instrument at least 24 hours before required to plead, and may move for a statement of particulars. However, any error caused by failure to provide a copy is cured by the defendant’s entering a plea

Question 27

When is joinder of offenses allowed

Answer 27

Offenses may be joined in one indictment or information if based on the same act or transaction

Question 28

When is joinder of defendants permitted

Answer 28

An indictment or information may charge two or more defendants if each defendant is charged in each count. If each defendant is not charged in each count, there must at least be a common count of conspiracy or an allegation that the various offenses are part of a common plan

Question 29

When is joint representation permitted

Answer 29

If two or more defendants have been joined for trial and are represented by the same attorney or firm, the court must advise each of the right to separate representation

Question 30

When is consolidation of offenses permitted

Answer 30

Offenses that could have been joined in one indictment or information may be consolidated for trial upon motion of either side. Defendant may move before trial to consolidate all state charges against him and may move for dismissal of charges unreasonably not consolidated

Question 31

When is severance of offenses permitted

Answer 31

Defendant has a right to sever charges improperly joined. Properly joined charges must also be severed on motion from either side if necessary to fairly determine guilt

Question 32

When is severance of defendants permitted

Answer 32

Defendant or the state may move for severance of defendants if proper to achieve a fair determination for each or to ensure a speedy trial. In situations where one defendant’s admissible statement implicates a co-defendant, Florida’s codification of Bruton requires the state to choose beforehand among not using the statement at a joint trial, removing references to the co-defendant, and severing the trials. A motion to sever is timely if filed before trial. Under certain circumstances, it may also be made during trial

Question 33

What happens at an arraignment

Answer 33

Arraignment is the defendant’s formal response in open court to the formal charges. It may be waived by entering a written plea of not guilty. If the defendant does not have counsel, the court must advise him of his right to counsel of choice or appoint counsel at the arraignment and all subsequent proceedings. Objections to irregularities in the arraignment are waived by entering a plea

Question 34

What are the three types of pleas and when are they entered

Answer 34

There are three types of pleas: guilty, not guilty, and nolo contendere. If defendant stands mute or is evasive, a plea of not guilty is entered. Defendant may plead guilty or nolo contendere to any other charges against him in the state over which the court has jurisdiction and may plead to any lesser offense. The prosecutors in the other cases must consent.

Question 35

What is the responsibility of the court during the entering of a plea

Answer 35

The judge must ensure that a plea is voluntary and fully understood, and that a factual basis for it exists. The defendant must be given a reasonable time in which to deliberate. If defendant pleads guilty but maintains his innocence, it is sufficient that he acknowledges that the plea is in his best interest

Question 36

What is the rule regarding withdrawal of a guilty plea

Answer 36

The court may permit, and for good cause must permit, withdrawal of guilty plea before sentencing. Thereafter, a court may permit a not guilty plea or, with consent of the prosecutor, plea of a lessor offense. Evidence of a withdrawn guilty plea may not be used at trial. A defendant who pleads guilty or nolo contendere without reserving the right to appeal a legally dispositive issue may file a motion to withdraw the plea within 30 days after rendition of sentence only on limited grounds (e.g., lack of subject matter jurisdiction, violation of a plea agreement, involuntary plea, or sentencing error). A defendant who files a plea of guilty or nolo contendere for the purpose of participating in a drug court treatment program may withdraw the plea after successful completion of the program

Question 37

What are the rules surrounding plea bargaining

Answer 37

Negotiated pleas are encouraged, but the ultiamte sentencing decision rests with the judge. If the judge refuses to go along with the negotiated plea, the defendant may withdraw his plea. In return for a guilty or nolo contendere plea, the prosecutor may drop other charges or recommend or agree to a specific sentence. The prosecutor must inform the judge of all material facts, including any DNA evidence that might exonerate the defendant. She must also record plea discussions with unrepresented defendants and furnish the record to the judge. The defense attorney must review the physical evidence against the defendant, communicate all plea offers to the defendant, and not enter a plea without the defendant’s consent. Breach of a plea agreement by the prosecution entitles defendant to a new trial or sentencing hearing. If the defendant breaches a plea agreement, the state may move to vacate the plea within 60 days of the breach.

Question 38

For what must the defendant be present

Answer 38

The defendant must be present for the first appearance (either physically or by electronic audio visual device), arraignment (unless a written not guilty plea has been filed), pretrial conferences (unless waived), beginning of trial and jury selection, all proceedings in front of the jury, evidentiary proceedings outside the jury, viewings by the jury, rendition of the verdict, and sentencing. However, if the defendant voluntarily leaves at any time, the trial may continue, and a disruptive defendant may be removed. Also, when charged with a misdemeanor, the defendant may seek leave not to appear at any proceeding.

Question 39

For a pretrial motion to dismiss–what does it raise, when and how must it be filed, and what is the result

Answer 39

A motion to dismiss raises legal defenses. (Factual defenses are raised by a not guilty plea.) It must generally be filed at or before arraignment, but if it raises a defense of former jeopardy, immunity, or pardon, or asserts that no facts are in dispute and that the facts do not constitute a prima facie case, it may be filed at any time. Except for fundamental grounds (e.g., statute void) or jurisdictional objections, defenses not raised are waived. If defendant alleges that no facts are in dispute, he must recite and swear to the facts; the state may then reply with a traverse denying them. If a charge is dismissed, the state may refile it.

Question 40

For a pretrial motion to suppress evidence, confession, or admission–when must it be filed, what must be included, and what does it mean

Answer 40

Defendant may move to suppress illegally obtained evidence, confessions, or admissions. This motion must normally be filed before trial, and a hearing may be held at which both sides may present evidence. The motion must state the particular evidence to be suppressed, reasons for suppression, and a statement of facts on which it is based. There are five grounds to suppress illegally obtained evidence: (i) the evidence was illegally seized without a warrant; (ii) the warrant is insufficient on its face; (iii) the property seized was not described in the warrant; (iv) the warrant was obtained without probable cause; and (v) the warrant was illegally executed.
Note that in Florida, the exlusionary rule applies to violations of the knock and announce rule. If a motion to suppress is legally sufficient, the court holds a hearing where both sides can present evidence. Note that when a trial court grants a motion to suppress evidence during trial, jeopardy has already attached; thus, the court might want to withhold ruling on the merits of the motion to avoid double jeopardy implications that would result if a mistrial were declared.

Question 41

What must be included with a motion to continuance and when must it be filed

Answer 41

A motion for continuance must be accompanied by a certificate of good faith signed by counsel. It must be filed before trial unless excused for good cause

Question 42

What is a motion to perpetuate testimony used for and when must it be filed by

Answer 42

If a witness resides out of state or may be unable to attend a trial or hearing, her testimony may, upon verified motion supported by affidavits of credible witnesses, be perpetuated by deposition. The motion to depose to perpetuate testimony must be made after indictment or information and must be filed more than 10 days before trial. If the witness is able to attend the trial or hearing, the deposition may not be used. If her absence is caused by a party, that party may not use her deposition

Question 43

What are the grounds for a motion to change venue

Answer 43

Either side may move for a change of venue if, for any reason other than a complaint about the trial judge, the defendant cannot get an impartial trial in the county where the case is pending.
Note: pretrial publicity standing alone is an insufficient reason for change of venue; prejudice or inability to obtain an impartial jury must be established

Question 44

What is the procedure for a motion to change venue and what is the effect if the motion is granted

Answer 44

A motion for a change of venue must be made at least 10 days before trial, unless good cause is shown for the delay. The motion must be in writing and accompanied by a certificate of good faith signed by the moving party’s counsel and affidavits of at least two other person setting out the factual basis for the motion.
If the motion is granted, the moving defendant’s trial will be transferred to any other convenient county where a fair trial can be held. If there are multiple defendants, only the moving defendant is tried in the new venue.

Question 45

A motion to disqualify a judge alleges one of what three things?

Answer 45

alleges that the judge is:

(i) prejudiced for or against a party,
(ii) related within the third degree to a defendant or lawyer in the case or to any judge who participated as a lower court judge in the case, or
(iii) a material witness in the case

Question 46

What are the procedures for a motion to disqualify a judge, when must it be filed, and what is the effect

Answer 46

The motion must be in writing, specifically allege the facts and reasons, be sworn to by the party under oath or by affidavit, and be accompanied by a separate statement of good faith made by counsel. It must be made in a reasonable time not to exceed 10 days after discovery of the facts constituting the grounds. If the motion is legally sufficient on its face, the first judge disqualifies herself automatically. If defendant seeks to disqualify a second judge as prejudiced, that judge is not automatically disqualified unless he admits the prejudice. Neither a judge’s “tough on crime” stance during his judicial campaign nor former employment as a prosecutor is legally sufficient to require disqualification

Question 47

What is a motion to protect identity of sexual assault victim and when should it be granted

Answer 47

The state or a victim in a sexual assault case may obtain an order to keep confidential any record that would reveal the victim’s name or address, or a photograph of the victim. The order must be granted if the victim’s identity is not already known to the community, the victim has not called public attention to the offense, disclosure would be offensive to a reasonable person, and disclosure would endanger the victim or make her unwilling to testify

Question 48

When may a motion to expedite be granted

Answer 48

The state may move to expedite cases involving abuse of a child, elderly person, or disabled adult

Question 49

What are the timing rules regarding a speedy trial

Answer 49

Trial must normally commence within 50 days of defendant’s demand for a speedy trial. Where no demand is made, misdemeanor trials must normally commence within 90 days of arrest/custody, felony trials within 175 days of arrest/custody, and retrials within 90 days of the mistrial order. When felony and misdemeanor charges have been joined or consolidated for trial, the felony speedy trial rules apply to both. Times may be extended by need for pretrial proceedings and in exceptional circumstances. Note that the speedy trial rule does not apply to defendants outside of Florida jurisdiction until the defendant returns to the jurisdiction of the Florida court where the charge is pending, and written notice of the defendant’s return is filed with the Florida court and the prosecutor

Question 50

What are the rules for demand for speedy trial

Answer 50

An accused may file a demand for trial within 60 days at any time after formal charges are filed. Defendant’s demand for a speedy trial imports that she is available and will be prepared for trial within five days. Failure by the state to bring the defendant to trial within 50 days after the demand entitles the defendant to file a notice of expiration of speedy trial time

Question 51

For purposes of the rules of speedy trial when does the commencement of trial being for 1) nonjury trials, and 2) jury trials

Answer 51

1) A nonjury trial commences when the proceedings begin before the judge.
2) A jury trial commences upon swearing of the jury panel for that specific trial for voir dire examination

Question 52

What are the rules for what happens after the speedy trial right is violated

Answer 52

If the speedy trial right is violated, upon defendant’s notice of expiration of the speedy trial time, the court holds a hearing within five days. It may order defendant tried within 10 days if no excuse is shown. If defendant is not tried within these 10 days, upon motion, defendant will be forever discharged unless: (i) a valid extension has been granted and has not expired; (ii) the failure to hold the trial is attributable to the accused, a co-defendant, or their counsel; (iii) the accused or his counsel were unavailable for a proceeding where their presence was required by the rules; or (iv) the demand for a speedy trial is invalid. (Violation of the five- and 10-day period has been held harmless if a defendant is actually brought to trial within 15 days of filing the notice of expiration).

Question 53

Every person being tried again or whose trial was delayed by appeal must be brought to trial within 90 days of whichever of the following occurred last in time (4)

Answer 53

(i) when a mistrial was declared,
(ii) when the order was entered granting a new trial,
(iii) when the court granted an arrest of judgment, or
(iv) when the trial court received the reviewing court’s mandate, order, or notice requiring a new trial

Question 54

When may an extension of time be granted for speedy trial

Answer 54

An extension for speedy trial may be granted for good cause, if necessary to hold other pretrial hearings or examinations, or in exceptional, unavoidable, and unforeseeable circumstances not including general congestion of the court calendar, but including unexpected unavailability of a necessary witness, unusual complexity of the case, accommodation of a co-defendant, or where defendant has caused major delay or disruption

Question 55

What are the three prerequisites to state attorney filing a demand for a speedy trial, and what are the time considerations involved

Answer 55

The state attorney may file a demand for a speedy trial if:

(i) the state has met its discovery obligations;
(ii) the court has granted at least three continuances on the defendant’s request over the state attorney’s objection; and (iii) in a felony case, it is not resolved within 125 days after the date that formal charges were filed and the defendant was arrested or the date that notice to appear in lieu of arrest was served on the defendant. The court must schedule a calendar call within five days. At the calendar call, the court must schedule the trial to commence within five to 45 days.

Question 56

What are the rules regarding using insanity as a defense

Answer 56

Insanity is an affirmative defense that the defendant has the burden of proving by clear and convincing evidence. Defendant must notify the court within 15 days after arraignment or filing of a written not guilty plea of his intention to rely on an insanity defense, and must provide a statement of the nature of the insanity and a list of witnesses whom he expects will prove his insanity. The court must order defendant examined. If defendant is acquitted by reason of insanity, the court may order commitment to the DCF, outpatient treatment, or complete discharge. The court retains continuing jurisdiction over committed defendants.

Question 57

What is the standard for being declared incompetent to proceed or be sentenced and what is the procedure following such a declaration (and also in the determination of such a declaration)

Answer 57

To be competent, a defendant must be able to consult with his lawyer and understand the proceedings against him.
At any time before sentencing, the court may order a hearing to determine the defendant’s mental condition. If the defendant is not confined, the court may order him held pending determination. The court may order the defendant examined by up to three experts, and the attorneys for both sides may be present at any examination. At the hearing, both sides may present evidence. If a defendant is found incompetent, he may be involuntarily treated in a facility or as an outpatient for up to six months, after which periodic hearings may result in further involuntary treatment for up to a year at a time. If, after five years of the incompetence determination for felonies or one year for misdemeanors, it appears that eventual competence is unlikely and defendant cannot be involuntarily committed, the charges must be dropped without prejudice.

Question 58

What is considered an “intellectual disability,” what is the effect of being declared as such in a criminal case

Answer 58

A death sentence may not be imposed on a defendant with an intellectual disability (i.e., one with significantly sub-average general intellectual functioning–I.Q. of 70 or below–plus deficits in adaptive behavior shown during minority). In first degree murder cases in which the death penalty has not been waived by the state, a defendant may file a written motion raising intellectual disability as a bar to execution. If the court finds the defendant is intellectually disabled, it will enter a written order prohibiting the imposition of the death penalty and setting forth specific findings. The court must stay the proceedings for 30 days to allow the state the opportunity to appeal the order.

Question 59

What is the general rule regarding discovery–when does an obligation begin, what is that obligation, and what is the effect of noncompliance with that obligation

Answer 59

Once the defendant gives notice of an intent to participate in discovery, both parties have a continuing obligation to disclose. Failure to comply with discovery may result in an order to comply, a continuance, a mistrial, a ban on use of undisclosed matters, contempt, or other relief

Question 60

What is the full scope of a prosecutor’s obligation in discovery

Answer 60

The prosecutor is under an obligation to disclose any information tending to negate defendant’s guilt. Within 15 days of defendants’ demand, the prosecutor must in general disclose names and addresses of persons with relevant information and any materials and information he intends to use. The existence of wiretapping and confidential informants must be acknowledged, but informants need not be identified unless they will be witnesses. The court may prohibit disclosure of sensitive matter and may make other appropriate protective orders. Upon notice to the state, defendant may depose persons with information

Question 61

What is the full scope of a defendant’s obligation in discovery

Answer 61

Defendant must furnish the names and addresses of the witnesses he expects to call within 15 days of receiving the state’s list of witnesses, and disclose statements of expected defense witnesses, reports of experts, and papers or objects he intends to use. If using an alibi defense, and if demanded by the prosecution, defendant must provide a statement of the particulars of the alibi (his whereabouts at the time of the crime and the names and addresses of any witnesses he may offer to prove the alibi) at least 10 days before trial. The state then has five days in which to notify the defense of its rebuttal witnesses and their addresses. The court may order defendant to participate in line-ups, speak for voice identification, give physical specimens, be fingerprinted, pose for mug shots, try on particular clothing, and submit to examinations

Question 62

A party may take a discovery deposition of any witness, except in what four cases

Answer 62

(i) in most misdemeanor or criminal traffic cases;
(ii) prosecution witnesses who were only ministerially involved in the case;
(iii) prosecution witnesses whom the prosecution does not in good faith intend to call as a witness;
(iv) prosecution witnesses whose involvement in the case is fully set out in a police report or other statement furnished to the defendant
Note: depositions of children under 18 must be videotaped unless the court orders otherwise