Discovery – Generally

Attorney John Mark Frazier Jr.

By: John M. Frazier Jr.

Discovery is the legal process of information gathering. This process is fundamental to developing or defending a lawsuit or criminal charge. This process will differ slightly in the framework of how it is conducted between a civil and criminal case. This is because criminal cases are governed under the Florida Rules of Criminal Procedure while civil cases are governed under the Florida Rules of Civil Procedure. There are many differences between the two but for the purposes of discovery the same overarching concept applies – fact finding.

Discovery is a mechanism for obtaining facts that may be relevant to your case. The concept of relevancy has a much wider application in the discovery context than in the context of admissible evidence at trial. This is true for both civil and criminal cases. In criminal cases, the State has the burden of proof and will do the vast majority of fact-finding as they obtain police reports/narratives, any videos or photos, physical evidence, or recorded statements before they make a decision to file a criminal charge but will have to disclose any discovery that they obtain and may use against a citizen accused at trial to the defense. However, an important aspect of defending a criminal case involves taking depositions of all the witnesses in a felony case to check on inconsistencies in testimony or determine the credibility and strength of a witness. The issue of disclosure of confidential informants can also arise. In Florida, you are not permitted to take depositions in misdemeanor cases. For DUI cases (which are misdemeanor unless upgraded to felony under certain circumstances), a formal review hearing can simultaneously work as a deposition of officers involved as it is taken under oath and recorded. Additionally, in certain criminal cases, it can be beneficial to obtain mental examinations during the discovery phase which can assist in the overall outcome of the criminal case.

Civil cases work a bit differently with a handful of overlap. Discovery can be obtained by a number of ways: depositions upon oral examination or written questions; written interrogatories; production of documents or things or permission to enter upon land or other property for inspection and other purposes; physical and mental examinations; and requests for admission as noted in Fla.R.Civ.P. 1.280(a). Parties may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter of the pending action, whether it relates to the claim or defense of the party seeking discStack of filesovery or the claim or defense of any other party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. Fla.R.Civ.P. 1280(b)(1). It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence. Fla.R.Civ.P. 1280(b)(1).

The discovery process will differ between civil and criminal cases but the theme of discovery remains the exact same for both – fact-finding of information that may reasonably calculated to lead to the discovery of admissible evidence.

If you need assistance with a legal matter, feel free to contact me. You can also follow me on Twitter, LinkedIn and Facebook for even more information.

Due Process – What is it?

Attorney John Mark Frazier Jr.

By: John M. Frazier Jr., Esq.

Due process of law is one of the most fundamental aspects of our legal system in America. Due Process can trace its roots back to the Magna Carta. The Magna Carta was the first English document that limited the arbitrary power of government. Due Process affords citizens the right from the government in depriving anyone of life, liberty, or property without the opportunity to be heard at a meaningful time and in a meaningful manner. There exists two types of Due Process – Procedural and Substantive.

Procedural due process requires that each litigant be given proper notice and a full and fair opportunity to be heard. Carmona v. Wal-Mart Stores, East, LP, 81 So.3d 461, 463 (Fla. 2nd DCA 2011). Additionally, procedural due process serves as a vehicle to ensure fair treatment through the proper administration of justice where substantive rights are at issue. Id. As you may be aware, agencies such as the DMV, FWC, etc., often jokingly considered the fourth branch of government, are held to this standard as they are within the executive branch. As such, whenever you are having your license suspended by the DMV, for instance, because of a refusal in a breath test DUI case, you are afford the right for a formal review hearing before your license suspension can be upheld; unless you waive that right. Spoiler alert – hearing officers or those within agencies that preside over your hearing (giving you the constitutional bare minimum due process) are not trained in law and are just employees of the agency. It doesn’t take a brilliant mind to determine the typical outcome of these hearings.

Most often, there are no rules of evidence in these types of agency hearings, or the rules are barely adhered to, and it isn’t conducted in a manner which would be consistent with a court of law. The term most often used for these proceedings is a “kangaroo court.” Their rulings are suU.S. Constitutionbject to appeal but are rarely overturned. However, it does afford you the bare minimum due process of law as required by both the U.S. Constitution and the Florida Constitution. The great benefit of these hearings are in the vein of judicial economy. Courts have limited resources (namely, time) and the idea is to have certain matters heard by agencies as long as the agencies have the proper legal rules and principles – their authority must be consistent with constitutional constraints and legislative intent. However, a more detailed discussion on this topic would delve into the complex area of administrative law.

Substantive due process is distinguished from procedural due process. The substantive component of the Due Process Clause of law acts to limit state authority to enact measures that impinge on fundamental rights, even if enacted with appropriate procedural safeguards. Brandon-Thomas v. Brandon-Thomas, 163 So.3d 644, 646 (Fla. 2nd DCA 2015). Substantive due process protects the full panoply of individual rights from unwarranted encroachment by the government. Haire v. Florida Dept. of Agriculture and Consumer Services, 870 So.2d 774, 781 (Fla. 2004). Substantive due process prohibits the government from infringing on fundamental constitutional liberties. Where as, procedural due process applies to the manner in which law is administered, applied, or enforced. This means that procedural due process is connected to the hearings and right to be heard, i.e. formalities. Substantive due process concerns itself with acts that government must refrain from regardless of the fairness of the procedures used to implement them. This is best explained in that the government passes a statute which violates a fundamental right that no matter what procedural steps are taken to assure a fair hearing, the statute would not be a valid law. The key between the two is whether there is a formal shortcoming or because the substance of the law violates a fundamental right or fairness and as such cannot claim to be the law.

Due process of law can be a fairly complex legal issue and is most often litigated within the realm of administrative law. However, due process of law touches every corner of our legal system. Due process of law is vitally important to the goal of justice and fairness. This was first fleshed out in the Magna Carta but was then a foundational building block of the creation of our country and legal system.

If you need assistance with a legal matter, feel free to contact me. You can also follow me on Twitter, LinkedIn and Facebook for even more information.