When was the last time you received a Brady Notice?
Many believe that prosecutors will start to take a different approach to disclosing Brady material as a result of the recent amendments to Rule 3.113. The courses are intended to teach defense attorneys to learn how to hold the prosecutor's feet to the fire.
Criminal defense attorneys in felony cases now have less than one year (until May 16, 2016) to complete a course covering the legal and ethical obligations of discovery in a criminal case, including the requirements of rule 3.220, and the principles established in Brady v. Maryland, 373 U.S. 83 (1963) and Giglio v. United States, 405 U.S. 150 (1972).
The amendment to Rule 3.113 is relatively short so I cut and paste it below.
You can find several videos intended to meet this requirement on The Florida Bar’s website, the Florida Prosecuting Attorneys Association’s website, and/or the Florida Public Defender Association’s website.
The Florida Public Defender Association's Website has a lot of valuable information on this topic including:
As a criminal defense attorney, you are not obligated to say that you already have it. You might get a question from the judge about whether you already have the material or not. But that misses the point.
The prosecutor must disclose the Brady material. The defense attorney does not have to hunt down that which is not properly disclosed. Why? Because sometimes the defense attorney will miss it. The obligation is on the prosecutor to locate the information and provide it to the defense attorney without being asked for it.
Occasionally, I've frustrated by the fact that I find information on an officer's pending "separation" from his job for serious misconduct or a pending internal affairs investigation and I disclose it to the prosecutor and they tell me that they do not consider it Brady and are not distributing it to the Public Defender's Office or to private criminal defense attorneys with open cases involving that same officer.
Instead of getting frustrated, I should just file the motion to force them to disclose it to me (even through I might already have it). It might also lead to the discovery of related information that I do not have in my possession and have no way to obtain otherwise. That will also clarify their obligations in their other cases where the disclosure has not been made. If defense attorneys did that every time - it would start to change the way prosecutors think about their obligations.
Then we will all start to see those Brady Notices more often.
Videos on the Florida Public Defender Association's Website:
The Florida Public Defender Association's Website provides that "for viewing the CLE Brady v. Maryland courses produced by the FPDA, it is respectfully requested that attorneys make a minimum $25 donation to the Florida Innocence Project or the Exoneree Support Fund of the Innocence Project of Florida. Please visit www.FLORIDAINNOCENCE.ORG to make your donation on-line, or send a check to: the Innocence Project of Florida, 1100 East Park Avenue, Tallahassee, FL 32301. All contributions are tax deductible to the fullest extent of the law, as IPF is certified as a nonprofit organization under the Internal Revenue Service Act Section 501(c)(3); federal tax ID 20-0210812."
Various live CLE courses are also being offered to fulfill this requirement.
So when was the last time you received a Brady Notice? What did you learn from watching any of the videos or attending a live CLE course on this topic?
This matter is before the Court for consideration of proposed amendments to the Florida Rules of Criminal Procedure. We have jurisdiction. See art. V, § 2(a), Fla. Const.
At the Court’s request, the Supreme Court’s Criminal Court Steering Committee (Steering Committee) filed its petition in this case, proposing adoption of a new rule of criminal procedure, rule 3.113 (Minimum Standards for Attorneys in Felony Cases). The Steering Committee unanimously proposes the rule amendment. Following publication of the proposed new rule by the Court, comments were filed by the Criminal Procedure Rules Committee and the Florida Public Defender Association. As discussed below, having considered the Steering Committee’s petition and the comments filed, we adopt Florida Rule of Criminal Procedure 3.113, as proposed by the Steering Committee.
Rule 3.113 is intended to implement the Florida Innocence Commission’s recommendation that the criminal rules be amended to require that any attorney who is practicing law in a felony case complete at least a two-hour course regarding the law of discovery and Brady v. Maryland, 373 U.S. 83 (1963) responsibilities. The new rule provides as follows:
Before an attorney may participate as counsel of record in the circuit court for any adult felony case, including postconviction proceedings before the trial court, the attorney must complete a course . . . of at least 100 minutes and covering the legal and ethical obligations of discovery in a criminal case, including the requirements of rule 3.220, and the principles established in Brady v. Maryland, 373 U.S. 83 (1963) and Giglio v. United States, 405 U.S. 150 (1972).Trial judges, based upon their inherent authority to uphold the rules of procedure, are authorized to give effect to the rule by not appointing counsel, or removing counsel, in the event that counsel is not in compliance with the rule.
Additionally, to ensure that qualified counsel will be available at the time this rule goes into effect, we provide that the rule will take effect two years from the date of this opinion.
Accordingly, Florida Rule of Criminal Procedure 3.113 is hereby adopted as reflected in the appendix to this opinion. The amendment shall become effective May 16, 2016, at 12:01 a.m.
It is so ordered.
POLSTON, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, LABARGA, and PERRY, JJ., concur.
THE FILING OF A MOTION FOR RE HEARING SHALL NOT ALTER THE EFFECTIVE DATE OF THESE AMENDMENTS.
Original Proceedings–Florida Rules of Criminal Procedure
Hon. Kevin Emas, Chair, Criminal Court Steering Committee, Miami, Florida for Petitioner Melanie L. Casper, Chair, Criminal Procedure Rules Committee, West Palm
Beach, Florida; John F. Harkness, Jr., Executive Director, The Florida Bar, Tallahassee, Florida; and Paul E. Petillo, The Florida Public Defender Association, West Palm Beach, Florida,
Responding with comments
RULE 3.113. MINIMUM STANDARDS FOR ATTORNEYS IN FELONY CASES
Before an attorney may participate as counsel of record in the circuit court for any adult felony case, including postconviction proceedings before the trial court, the attorney must complete a course, approved by The Florida Bar for continuing legal education credits, of at least 100 minutes and covering the legal and ethical obligations of discovery in a criminal case, including the requirements of rule 3.220, and the principles established in Brady v. Maryland, 373 U.S. 83 (1963) and Giglio v. United States, 405 U.S. 150 (1972).
2014 Adoption. The Supreme Court has exclusive jurisdiction under Article V, section 15 of the Florida Constitution to “regulate the admission of persons to the practice of law and the discipline of persons admitted.” Implied in this grant of authority is the power to set minimum requirements for the admission to practice law, see In re Florida Board of Bar Examiners, 353 So. 2d 98 (Fla. 1977), as well as minimum requirements for certain kinds of specialized legal work. The Supreme Court has adopted minimum educational and experience requirements for attorneys in capital cases, see, e.g., rule 3.112, and for board certification in other specialized fields of law.
The concept of a two-hour continuing legal education (CLE) requirement was proposed in the 2012 Final Report of the Florida Innocence Commission.
The CLE requirement is not intended to establish any independent legal rights. Any claim of ineffective assistance of counsel will be controlled by Strickland v. Washington, 466 U.S. 668 (1984).
It is intended that The Florida Prosecuting Attorneys Association and The Florida Public Defender Association will develop a seminar that will be approved for CLE credit by The Florida Bar. It is also intended that attorneys will be able to electronically access that seminar, at no cost, via The Florida Bar’s website, the Florida Prosecuting Attorneys Association’s website, and/or the Florida Public Defender Association’s website.
The rule is not intended to apply to counsel of record in direct or collateral adult felony appeals.