Controversy in Florida Courts Leads to Restrictions on Expert Witnesses

TALLAHASSEE, Fla. - Oct. 14, 2014 - PRLog -- A recent decision in the Florida Appellate Court has changed the way prosecutors and judges have long been using expert witnesses in criminal cases. The decision stated the court violated criminal code when allowing expert witnesses who do not qualify or those who were not cited in the discovery phase to take the stand.

The Florida Appellate Court reversed a sexual battery conviction and called for a retrial last month after it ruled the trial court "abused its discretion" by allowing two undesignated expert witnesses to testify on behalf of the state in the case.

The decision in the Debord v. State case will crack down on prosecutors and judges who allow expert witnesses who do not qualify as such or those who have not been listed as such in the discovery phase to testify for the state, said Tallahassee criminal defense attorney Donald Pumphrey Jr.

"People who do not qualify as experts long have testified in Florida courts," he said. "Hopefully this reversal will create stricter enforcements when allowing someone to testify in a criminal case. Their words could have a serious impact in deciding the fate of the accused."

According to the ruling, the state violated Florida Rule of Criminal Procedure 3.220 by not designating its expert witnesses in the discovery phase. The prosecutor, under the state's criminal procedure, must adhere to a series of rules during the discovery phase, including the obligation to provide within 15 days a written Discovery Exhibit to the defendant.

The exhibit outlines witnesses who could testify against the defendant, including those labeled as expert witnesses, Pumphrey said. The code states the prosecutor must list the expert witness he or she intends to call at trial in the discovery phase, according to the Florida criminal procedure. The prosecutor also must include the expert witness' curriculum vitae or resume.

"Having this information ahead of the trial allows the defendant and the attorney to plan accordingly," Pumphrey said. "The result of a criminal trial can have a serious impact on a defendant. That person should have the right to create the best possible defense."

Prosecutors use expert witnesses in a variety of cases, including DUI (http://www.donpumphrey.com/criminal-defense/drunk-driving...) and drug cases.

The appellate court decision said the error of failing to notify the defendant of the expert witness is not harmless. The ruling said there was a reasonable possibility the defendant would have changed his trial preparation or strategy if the state disclosed its plans to have expert testimony from those witnesses prior to the trial.

If the defendant and the attorney have knowledge of the expert witness before the trial, the attorney can set a deposition of the expert witness and evaluate his or her background, Pumphrey said. The defendant also would have had the opportunity to elicit and pay for the testimony of his or her own expert witness, which he likely would have done had he known, according to the appellate decision.

"Knowledge of an expert witness can change a defense tremendously," Pumphrey said. "The decision to call for a retrial is truly the best way to ensure the rights of the accused are represented."

Donald Pumphrey Jr. is a Tallahassee criminal defense lawyer (http://www.donpumphrey.com/) at Pumphrey & Prince in Tallahassee, Fla. He has been defending the rights of those facing various criminal charges including DUI, drug trafficking, domestic violence, assault, battery, theft and murder for more than a decade.

Pumphrey uses his experience as a former law enforcement officer and a prosecutor to understand all aspects of the law. He currently represents clients throughout the Florida panhandle, including Tallahassee, Woodville, Midway, Havana, Monticello and Bristol.