Lonnie Starr said in response to shannoninmiami this morning at 8:22 am in the comment thread to Tempest in a Teapot:
“In any event, anything that amounts to the work product of the attorneys is not discoverable. Which is why we can’t really know where this case is. We have a lot of the raw materials, but we can’t know how they are treating it, because much of what they’re working on, is held in related materials or work product of other actors they’ve enlisted. So their work lines are off our scopes.”
As he so often is, Lonnie is correct.
The attorney-client work product privilege generally protects from disclosure an attorney’s notes, musings, research, drafts, communications with experts, and strategizing about a case. Therefore, we will never know for certain all of the identities of the investigators and experts with whom the defense and prosecution lawyers consulted, what they discussed, and the conclusions they reached. Their identities, discussions and any notes memorializing those discussions are protected by the attorney-client work product privilege and not discoverable.
The big exception, of course, is all of the materials in the discovery that have been provided by the State to the defense pursuant to the criminal rules of discovery and released to the public pursuant to Florida’s Sunshine Law with civilian witness identities and contact information redacted. Regrettably, phone records and subscriber information also has been withheld from the public for privacy reasons thereby preventing us from identifying who called the defendant and whom he called before and after he killed Trayvon Martin.
Note that the discovery materials only reveal the evidence the State has in its custody, possession and control. The materials do not include the prosecution’s theory of the case or strategy for presenting the evidence at trial. That information is not in the discovery because it is exempted from disclosure by the attorney’s work product privilege. In this instance, I am referring to the prosecutor’s work product privilege and it extends to protect the same information from disclosure that is in the possession, custody and control of its agents; namely, investigators and experts.
When a lawyer decides to call an expert to testify at the trial, the expert’s report and the basis for his or her opinion are discoverable. This usually consists of benchnotes and possibly a machine printout depending on the nature of the analysis conducted, if the expert is a laboratory analyst. If psychological testing is involved, the tests and scores are discoverable. The lawyer’s and the expert’s theory regarding how the expert’s opinion fits into the overall theory and strategy of the case remains protected and is not discoverable.
There are two important exceptions to the work product rule.
(1) If a prosecution expert has performed a test and obtained an exculpatory result, the prosecution must disclose the result and the expert’s identity to the defense. This rule is based on the Due Process Clause of the Fifth and Fourteenth Amendments and Brady v. Maryland, 373 US 83 (1963), that require the prosecution to disclose all exculpatory evidence within its custody, possession or control because the defense generally lacks the resources and ability to compete with the prosecution and discover the evidence on its own. For example, the defense does not have its own police department and a crime lab available to independently investigate and test evidence.
(2) If the defendant is asserting an insanity or diminished capacity defense, defense counsel must disclose any unfavorable opinion held by an expert employed by the defense and the expert’s identity to the prosecution. This is a fundamental fairness rule to prevent the defense from concealing inculpatory evidence regarding a mental health defense in which the only evidence available, so to speak, is locked inside the defendant’s head.
We can make reasonably accurate guesses regarding the concerns and strategies of counsel for the defense and prosecution and I suspect we have thought of some possibilities that have not occurred to them. However, we will have to wait until trial when the box is unwrapped, opened, and we finally get to see what is inside.
For more information on the work product rule, please go here.
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