F L O R I DA I N N O C E N C E C O M M I S S I O N

FINAL REPORT
TO THE
SUPREME COURT OF
FLORIDA
J U NE 2 5 , 2 0 1 2

The Florida Innocence Commission-Final Report

I.

BACKGROUND

5

II.

MEMBERS OF THE FLORIDA INNOCENCE COMMISSION

8

III. COMMISSION FUNDING

10

IV. ACKNOWLEDGEMENTS

11

V.

13

CHAIRMAN’S REMARKS

VI. EXECUTIVE SUMMARY

15

(a)

Eyewitness Identification

18

(b)

False Confessions

26

(c)

Law Enforcement Interrogation Techniques

41

(d)

Informants and Jailhouse Snitches

49

(e)

Improper/Invalid Scientific Evidence

93

(f)

Evidence Preservation

117

(g)

Professional Responsibility

123

(h)

Funding of the Criminal Justice System

137

VII. COMMISSION RECOMMENDATIONS
(a) Informant and Jailhouse Snitches
(b) Scientific Evidence
(c) Preservation of Evidence
(d) Professional Responsibility
(e) Funding of the Criminal Justice System

2

166
166
167
169
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The Florida Innocence Commission-Final Report
Appendix A
Commission Minutes and PowerPoint August 29, 2011
Appendix B
Commission Minutes and PowerPoint October 10, 2011
Appendix C
Commission Minutes and PowerPoint December 12, 2011
Appendix D
Commission Minutes and PowerPoint February 13, 2012
Appendix E
Commission Minutes and PowerPoint March 12, 2012
Appendix F
Commission Minutes and PowerPoint April 16, 2012
Appendix G
Commission Recommendation for Amendment to Florida Rule of Criminal
Procedure 3.220
Appendix H
Commission Minutes and PowerPoint May 21 and 22, 2012
Appendix I
Law Enforcement Agencies with Eyewitness Identification Protocols
Appendix J
Standards for Electronic Recording of Custodial Interrogations
Appendix K
Letter to the President of the Florida Senate and the Speaker of the House of
Representatives
Appendix L
Proposed Legislation on Recording of Suspect Statements

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The Florida Innocence Commission-Final Report
Appendix M
Proposed Jury Instruction on Failure to Electronically Record Suspect
Statement
Appendix N
Proposed Jury Instruction on Testimony of an Informant Witness
Appendix O
Federal and State Jury instructions on Informant Testimony
Appendix P
The Florida Senate Interim Report 2011-112. Evidence Preservation for
Postsentencing DNA Testing
Appendix Q
Commission Minutes and PowerPoint June 11, 2012
Appendix R
2006 Senate Bill 362 and 2006 House Bill 81
Appendix S
Comments of Commission Members

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The Florida Innocence Commission-Final Report
I.

Background
On December 11, 2009, a Petition for a Rule Establishing an Actual

Innocence Commission was filed with the Supreme Court of Florida by Talbot
D’Alemberte, Esquire, on behalf of sixty-eight petitioners. On July 2, 2010, Chief
Justice Charles T. Canady established, by Administrative Order AOSC10-39, the
Florida Innocence Commission. The Chief Justice appointed Chief Judge Belvin
Perry, Jr., of the Ninth Judicial Circuit, to chair the Commission. Administrative
support to the Commission has been provided by the Office of the State Courts
Administrator through an Executive Director, an OPS program attorney, and an
OPS Administrative Assistant II.
The Chief Justice entered two additional administrative orders since the date
the Commission was created. In AOSC11-21, dated July 1, 2011, two additional
members were added to the Commission: Mr. H. Scott Fingerhut, Esquire, and the
Honorable Paul F. Sireci, Chief of Police, Tampa International Airport Police
Department. In AOSC11-29, dated September 7, 2011, the Chief Justice appointed
the Honorable Charles McBurney, Florida House of Representatives, to replace the
Honorable William D. Snyder, Florida House of Representatives.
The Commission filed an Interim Report with the Court, as required by
AOSC10-39, on June 6, 2011. This Final Report of the Commission is filed

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The Florida Innocence Commission-Final Report
pursuant to the directive in AOSC10-39 to file a final report with the Court no later
than June 30, 2012.
Meetings were held in Tallahassee, Jacksonville, Tampa, and Orlando. In
addition, working groups within the Commission held several conference calls in
order to facilitate Commission business.
The Commission Mission Statement is set forth in the Interim Report. The
Commission was established to recommend to the Supreme Court of Florida
solutions to eliminate or significantly reduce the causes for wrongful convictions.
The solutions set forth by the Commission in the Interim Report and this Final
Report include suggested amendments to certain criminal rules, statutory changes,
new or amended jury instructions, and detailed funding requests.
The Commission has received a significant number of letters, e-mails, and
telephone calls from inmates, and families of inmates, requesting that the
Commission investigate their claims of actual innocence. The offenses have run
the gamut from third degree felonies to capital offenses. In addition, there have
been numerous contacts from citizens residing in Florida and other states who have
inquired about the role of the Commission. With all of these contacts, it has been
made clear that the role of the Commission is not to serve as an investigative body,
provide a method of exoneration for claims of innocence, or delve into the death
penalty process.
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The Florida Innocence Commission-Final Report
Whether Florida chooses to create a new commission modeled after the
North Carolina Innocence Inquiry Commission, or form another commission to
study criminal justice issues, is left to the sound discretion of the judicial,
executive, and legislative branches of government.

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The Florida Innocence Commission-Final Report
II.

Members of the Florida Innocence Commission

The Honorable Belvin Perry, Jr. (Chair), Chief Judge, Ninth Judicial Circuit
The Honorable Joe Negron, The Florida Senate, District 28
The Honorable Gary Siplin, The Florida Senate, District 19
The Honorable Charles McBurney, Florida House of Representatives, District 16
The Honorable Ari Porth, Florida House of Representatives, District 96
The Honorable Patricia Kelly, Appellate Judge, Second District Court of Appeal
The Honorable J. Preston Silvernail, Circuit Court Judge, Eighteenth Judicial
Circuit
The Honorable Brad E. King, State Attorney, Fifth Judicial Circuit
The Honorable Nancy Daniels, Public Defender, Second Judicial Circuit
The Honorable Gerald Bailey, Commissioner, Florida Department of Law
Enforcement
The Honorable Bill Cameron, Sheriff, Charlotte County
The Honorable Paul F. Sireci, Chief of Police, Tampa International Airport Police
Department
Mr. R. Alex Acosta, Dean, Florida International University College of Law
Ms. Martha Barnett, Esquire
Mr. Howard Coker, Esquire
Mr. Henry Coxe, Esquire
Mr. H. Scott Fingerhut, Esquire
Ms. Mary Barzee Flores, Esquire
Mr. Benjamin Hill, Esquire
Mr. Kenneth B. Nunn, Professor, University of Florida Levin College of Law
Ms. Tena Pate, Chair, Florida Parole Commission
Mr. Israel Reyes, Esquire
Mr. Rod Smith, Esquire
Ms. Carolyn Snurkowski, Assistant Deputy Attorney General, Florida Department
of Legal Affairs
Ms. Sylvia H. Walbolt, Esquire
Supreme Court Liaison to the Commission
The Honorable Peggy A. Quince, Justice, Florida Supreme Court

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The Florida Innocence Commission-Final Report
Special Requests
Upon request by a qualified individual with a disability, this document will be
made available in alternative formats. To order this document in an alternative
format, please contact Debra Howells, State Courts ADA Coordinator, Office of
the State Courts Administrator, 500 S. Duval Street, Tallahassee, FL 32399-1900;
telephone 850-922-4370; email: ada@flcourts.org.
Copies of the Final Report are available upon request by contacting the Office of
the State Courts Administrator, 500 S. Duval Street, Tallahassee, FL 32399-1900.

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The Florida Innocence Commission-Final Report
III. Commission Funding
The Commission expenditures are covered by two separate funding sources.
The 2011 Florida Legislature, through the Mediation Arbitration Trust Fund (cost
center 402), provided funding to the Commission in the sum of $246,620.00 for
fiscal year 2011-2012. As of June 20, 2012, the Commission had a balance of
$6,084.21 in that account. Because of a budget shortfall, $40,703.00 was taken
from the account on April 9, 2012. A grant application for $114,862.00 (cost
center 509) was approved on June 24, 2010, by The Florida Bar Foundation. This
grant provided for two semi-annual payments of $57,431.00. Although the grant
expired on June 30, 2011, the foundation was kind enough to extend the grant
period to July 14, 2012. As of June 25, 2012, the Commission had a balance of
$59,519.21 left from grant funds.
The total sum expended by the Commission from July 2, 2010 until June 25,
2012 is $376,862.10.
The Commission funds were managed by the Executive Director. The
funding was used to cover salaries, general expenses (including copying, mailing,
and meeting expenses), and hotel, travel and per diem costs of Commission
members. Funds were also expended for expert and speaker travel expenses and
contracted services for administrative or research needs.

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The Florida Innocence Commission-Final Report
IV.

Acknowledgements
The Commission wishes to express its gratitude to the President of the

Florida Senate, Senator Mike Haridopolos, for his continuing support of the
Commission during its two years of work. The Commission also expresses its
thanks to the Florida Legislature and The Florida Bar Foundation for providing
funding to the Commission for the past two years. The Commission would also
like to thank The FLORIDA Channel for its continuing coverage of the
Commission meetings.
The Commission wishes to acknowledge the invaluable assistance of
Executive Director Les Garringer, Ms. Cheryl Magnes, the Administrative
Assistant to the Executive Director, and Ms. Megan Long, Program Attorney to the
Commission. The Commission would also like to thank Ms. Jackie Bergen, the
former Director of Administration for the Scottish Criminal Cases Review
Commission, for providing research materials for use by the Commission members
and staff.
The Commission staff would like to thank Mr. Seth E. Miller, Esquire,
Executive Director of the Innocence Project of Florida, Inc., for his insight, and
Mr. Michael R. Ramage, Esquire, General Counsel for the Florida Department of
Law Enforcement, for his wisdom and assistance.

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The Florida Innocence Commission-Final Report
The extensive research necessary for the Commission to conduct its work,
could not have been accomplished without the assistance of the law students at
Stetson University College of Law and the University of Florida Fredric G. Levin
College of Law.
The following faculty members and law students have devoted an
extraordinary amount of time and energy assisting Commission members and staff
through their legal research, and when necessary, attending Commission meetings:
Professor Judith Scully, Amanda Kotula, Alexandra Menegakis, Gabe Neibergall,
Carmen Johnson, Olga Balderas, Caitlin Docherty, Kelly Dugan, Merise Jalali,
Lewis Kirvan, Gillian Leytham, Dominique McPherson, Samantha Newman,
David Rosenberg, Brandon Sapp, Vivian Seymour, Braja Spellman, Thao Tran,
Yvette Wiltshire, Ashley Goggins, Andrew M. Harrison, Meagan Foley, Elisabeth
A. Fontugne, Andrew Mitchell, Eric Martucci, Kayla Cash, Justin W. Phillips,
Jamie R. Combee, Melissa A. Foss, Laura Zegzdryn, Adlin M. Tuya, Andona R.
Zacks-Jordan, Aimée Tecla, Isabella Sobel, Ashley Rector, Alex Seaton, Benjamin
Hoffman, LeslieRae Newton, Charlie Lawrence, Lisa Scheibly, Daniel A. Heyman,
Kaylin M. Humerickhouse, Katherine W. Ramos and Juliane A. Murphy.

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The Florida Innocence Commission-Final Report
V.

Chairman’s Remarks
After two years the work of the Florida Innocence Commission has come to

an end. As is evident by an examination of the reports produced by the
Commission, a number of sound recommendations have been offered that if
implemented, could lessen the likelihood of individuals enduring wrongful
convictions in Florida. However, we cannot ignore the fact that if these
recommendations are not given serious consideration, thoroughly vetted and
implemented in some form, then the problems suffered in the past of wrongful
convictions and innocent people sentenced to prison will continue to occur.
Clearly, some of these recommendations will cost money and some may
even argue the price of justice is too high. But the consequence of inaction is
injustice, and injustice is not what this Country was founded upon. The foundation
of this Country, and this State, is based upon the Rule of Law. There can never be
an unreasonable price attached to a founding principle of this Country. Whenever
one individual has been wrongly convicted we as a society suffer. If wrongful
convictions continue, at some point in time it will cause the citizens to wonder
whether the system is fair and whether the judgments of our juries and courts
should be respected. It is that respect which strengthens the pillars of justice.
We cannot avoid the reality that a number of the problems in our system of
justice deal with the issue of adequate funding. Prosecutors, public defenders, and
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The Florida Innocence Commission-Final Report
the courts are overburdened and do not have adequate tools and resources to keep
pace with the volume and complexity of the cases before them. Conflict attorneys
are currently undercompensated which will eventually lead to serious problems in
ensuring that people who appear before the court have competent and adequate
representation.
If we are to uphold what I consider to be the goal of the justice system, that
is to protect the innocent and punish the guilty according to the law, then we must
be vigilant in ensuring that our system of justice is appropriately funded.
I would like to express my gratitude to the Chief Justice of the Florida
Supreme Court, The Honorable Charles T. Canady, for the opportunity and
privilege to serve as Chair of the Florida Innocence Commission. I would also like
to express my sincere gratitude to the members of the Commission for their time,
talent and service. Finally, I would be remiss if I did not thank our Executive
Director, Lester A. Garringer, Jr. and his administrative assistant, Cheryl Magnes
for a tremendous job well done. Without the tireless hard work and steady hand in
leadership consistently demonstrated by Mr. Garringer we would not have been
able to accomplish so much in just two short years.

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The Florida Innocence Commission-Final Report
VI.

Executive Summary
Introduction
This summary will not attempt to revisit the work of the Commission from

July 2, 2010, through June 6, 2011. The Commission work product for that time
period can be found in the Interim Report filed with the Court. This Final Report
will cover the work of the Commission from June 7, 2011, through June 25, 2012.
However, since the issue of eyewitness identification continued to be discussed by
the Commission subsequent to June 6, 2011, this topic will also be covered in the
Final Report.
An in-depth recitation of the presentations by certain witnesses who
appeared before the Commission is set forth below. The thought processes of the
members and conclusions reached by the Commission are also included. This
information is provided to the Court in order to follow the steps taken in evaluating
the issues before the Commission, and the recommendations included in this Final
Report.
At the conclusion of all the meetings, Commission members were afforded
the opportunity to submit comments regarding their service on the Commission.
Individual comments are attached at Appendix S.
Since its creation by Administrative Order SC10-39 on July 2, 2010, the
Commission has met thirteen times. In addition, working groups within the
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The Florida Innocence Commission-Final Report
Commission have held several conference calls in order to facilitate Commission
business.
At each meeting, the members were furnished with a notebook or a compact
disk that contained all of the research conducted by Commission staff. The
contents of the compact disks of the last eight Commission meetings from August
29, 2011 to June 11, 2012, are uniform in that they contain, but are not limited to,
the following information:
(1)

Treatises and articles by experts

(2)

Commission, task force, and bar association reports and
recommendations

(3)

Statutes from Florida and other jurisdictions

(4)

Court rules from Florida and other jurisdictions

(5)

Case law

(6)

Jury instructions from Florida and other jurisdictions

(7)

Law enforcement protocols

(8)

Commission minutes - Tabs A-F, H, and Q

(9)

PowerPoint presentations by the Chair of the Commission and guest
presenters

The Final Report of the Commission is available to any interested person in
hard copy and electronic format. In addition, all of the Commission notebooks,

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The Florida Innocence Commission-Final Report
including the research materials, have been stored on compact disks. This
information is also available upon request.
During the two years of its existence, the Commission identified five causes
for wrongful convictions: Eyewitness identification, false confessions, informants
and jailhouse snitches, improper/invalid scientific evidence, and professional
responsibility. While studying the topic of professional responsibility, it became
crystal clear to the Commission that a sixth significant cause exists that may lead
to wrongful convictions: The underfunding of the criminal justice system in
Florida. Because of the significance of this issue, subsection (h) has been included
in the Executive Summary. Many members expressed their concerns about
criminal justice system funding during discussions that occurred at the June 11,
2012 meeting. The following points raised by three Commission members are the
most salient and reflect the mindset of the Commission.
Judge Silvernail stated that without adequate counsel, due process is not
assured. If we do not provide adequate funding there is a loss of the due process
of law which will lead to wrongful convictions.
Dean Acosta commented that if one is serious about doing something about
wrongful convictions we must recognize that a lack of funding is the most serious
threat that implicates the state attorneys, public defenders, the Attorney General,
criminal conflict counsel, and the judiciary. All of the other recommendations of
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The Florida Innocence Commission-Final Report
the Commission are secondary. More funding is fundamental to our rights and the
system of law.
Mr. Coxe succinctly stated that inadequate funding leads to mistakes that are
a recipe for wrongful convictions.
Although the Commission has identified and studied these six causes of
wrongful convictions, one should not draw the assumption that the Commission, in
its two years of work, has been able to study every conceivable reason that leads to
the conviction of the innocent. As Judge Silvernail succinctly stated at the final
Commission meeting on June 11, 2012: Attorney misconduct, ineffective defense
counsel, prosecution errors, heavy judicial caseloads, and inadequate funding all
lead to wrongful convictions.
(a)

Eyewitness Identification
As eyewitness misidentification is the leading cause of wrongful

convictions, the Commission elected to study this issue first. According to the
Innocence Project, eyewitness misidentification has played a role in more than
75% of convictions subsequently overturned through DNA testing. The United
States Supreme Court early on recognized the power of eyewitness identification.

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The Florida Innocence Commission-Final Report
“There is almost nothing more convincing,” Justice William J. Brennan Jr. wrote in
a 1981 dissent, quoting from a leading study, “than a live human being who takes
the stand, points a finger at the defendant, and says, ‘That’s the one!’”
Eyewitness identification is powerful because a witness is often completely
convinced that he or she is correct about identifying a perpetrator. Additionally,
persuasive in-court identifications are the norm in American courtrooms.
However, groundbreaking social science studies over the past thirty years have
shown that confidence does not correlate with accuracy. Factors that can lead to
eyewitness misidentification include: cross-racial identifications, the presence of a
dangerous weapon during the crime, and the type of lineup that law enforcement
shows to witnesses. A leading social scientist in this field, Professor Gary Wells,
has advocated a certain type of lineup based on his research: A sequential
presentation of the photographs by a blind administrator (a person who does not
know who the suspect is).
While there is not unanimity of opinion among social scientists about the
merits of sequential vs. simultaneous lineup presentation and a blind administrator
vs. a person who is aware of the suspect’s identity, there is increasing recognition
by various commissions, courts, and nonprofit organizations that memory and the
human mind are more fallible than once thought. Since eyewitness

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The Florida Innocence Commission-Final Report
misidentification was given the highest priority, the Commission spent the most
time studying and making recommendations for this area.
The subject of eyewitness identification was first addressed by the
Commission as early as August of 2010. Appendices G and H of the Interim
Report contain the recommendations of the Commission as set forth in the
Standards for Florida State and Local Law Enforcement Agencies in Dealing with
Photographic or Live Lineups in Eyewitness Identification and the Commentary
and Instructions. This topic was addressed again at the August 29, October 10, and
December 12, 2011 meetings held in Orlando, Florida.
On or about June 15, 2011, the Florida Department of Law Enforcement
(FDLE), in conjunction with the Florida Sheriff’s Association, the Florida Police
Chiefs Association and the Florida Prosecuting Attorneys Association, sent to law
enforcement agencies a set of recommended standards that differed in some
respects from the recommendations of the Commission. A significant difference
between the two standards is that the law enforcement standard does not state a
preference for an independent administrator to administer lineups. The
Commission recommended that an independent administrator be utilized if
resources were available.
In order to ensure that law enforcement agencies were aware of the
recommendations of the Commission, staff for the Commission gathered a list of
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The Florida Innocence Commission-Final Report
every law enforcement agency that could be located in Florida and did a mass
mailing, with a cover letter, to 321 law enforcement agencies, explaining the work
of the Commission. The letter explained how to access the report on the Court
website, and included a hard copy of the Commission standards. Staff also
prepared a side-by-side comparison of the Commission work product and the law
enforcement June 15th work product, so that each agency could compare the two
sets of standards and adopt a policy that best fit its needs. The letter also asked
each law enforcement agency to respond to the Commission by November 1, 2011,
and to provide a copy of any standard adopted by the agency.
During the course of collecting law enforcement standards, State Attorney
Brad King contacted Commission staff on October 21, 2011. Mr. King advised
that the Florida Prosecuting Attorneys Association had met on October 18, 2011.
At that meeting, all of the state attorneys agreed to obtain copies of the protocols
from their respective law enforcement agencies and deliver them to Mr. King, so
they could be forwarded to the Commission.
On February 10, 2012, Mr. King furnished to Commission staff a compact
disk containing the protocols of 347 law enforcement agencies. The total number
of pages exceeds 2,800 pages. The compact disk was created by Mr. King using
links so that each protocol can be accessed by circuit and then by an agency within
the circuit, or by an alphabetical list. The complete list of law enforcement
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The Florida Innocence Commission-Final Report
agencies who have submitted a protocol (including agencies that responded
directly to the Commission) is attached at Appendix I.
As noted in the Interim Report filed with the Court, the Commission, in
approving the Standards for Florida State and Local Law Enforcement Agencies
Dealing with Photographic or Live Lineups in Eyewitness Identification and the
Commentary and Instructions did not take a stance with regard to choosing the
sequential method of administration over the simultaneous method. These
methods are defined as follows:
(1)

Sequentially: Presentation of photos in a photo group or individuals

in a lineup to a witness one at a time rather than all at once.
(2)

Simultaneously: Presentation of photos in a photo group or

individuals in a lineup to a witness all at once rather than one at a time.
The Commission’s position is set forth in Item F of the Standards (located in
Appendix G of the Interim Report): The Method(s) of Presenting the Photo Array
or Lineup.
(1) The investigator administering the array shall, in consultation with the
agency’s legal advisor and the local State Attorney’s Office, determine whether the
sequential or simultaneous method of conducting photo arrays is to be utilized.
Agency policy may allow one method, or both methods.

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The Florida Innocence Commission-Final Report
As mentioned in the Interim Report, the Commission did endorse Senate Bill
1206 sponsored by Senator Joe Negron. This bill called for the use of the
sequential method of administration. The vote to endorse the legislation was 12 to
8. Those opposing Senate Bill 1206 had several objections to the bill. One
objection was that there were no scientific studies that have shown that the
sequential method of administration is superior to the simultaneous method of
presentation.
On September 19, 2011, the American Judicature Society (AJS) released its
initial report of a field study conducted by scientists and law enforcement officers
comparing simultaneous and sequential photographic lineups. The report is
entitled: A Test of the Simultaneous vs. Sequential Lineup Methods. The report is
authored by Professor Wells, Dr. Nancy K. Steblay, and Dr. Jennifer E. Dysart.
Commission staff’s interpretation of the findings of the study concludes:
(1)

The results of the study are consistent with decades of laboratory

research showing that the sequential procedure reduces mistaken
identifications with little or no reduction in accurate identifications.
(2)

The sequential method is superior for reducing the frequency of a

witness selecting a filler photo.

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The Florida Innocence Commission-Final Report
(3)

The 2006 Illinois study which concluded that the simultaneous lineups

produced higher suspect identification rates and lower filler picks than
sequential lineups used flawed research methods.
The Commission was provided a copy of the AJS study at the October 10,
2011 Commission meeting. At that meeting, staff was directed to solicit the
comments of Professor Roy Malpass and report his conclusions regarding the study
at the December 12, 2011 meeting. Professor Malpass had presented his findings
on eyewitness identification at the January 11, 2011 meeting of the Commission
(See Appendix C of the Interim Report filed with the Court on June 6, 2011). Staff
contacted Professor Malpass, and the salient portion of his thoughts regarding the
AJS study is set forth below:
“Sequential presentation, especially as a mandated wholesale replacement
for simultaneous presentation, is certainly controversial, and for that reason it is
unwise for non-scientists to adopt a new procedure to the exclusion of others while
it is not well understood scientifically - while the scientific jury is still out.”
At the December 12, 2011 meeting, staff advised the Commission of the
comments of Professor Malpass. The question presented at this meeting was
whether the recommendation of the Commission should be changed in light of the
AJS study. Professor Nunn moved to change the Commission recommendation on
the method of conducting eyewitness identifications in the Interim Report.
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The Florida Innocence Commission-Final Report
Professor Nunn stated that Professor Malpass is the only expert holding to the view
that the sequential method is not superior. The Commission voted 14 to 7 to not
change the Commission recommendation.
On August 15, 2011, the Court requested that the Supreme Court Committee
on Standard Jury Instructions in Criminal Cases file a report with the Court no later
than January 3, 2012, proposing a new jury instruction to address eyewitness
identification. This request was based on a recommendation by the Commission
that is set forth in the Interim Report on pages 33 and 34. The jury instructions
committee filed its report with the Court on December 29, 2011 in Case No.
SC11-2517: In Re: Standard Jury Instructions in Criminal Cases - Report No.
2011-05. Appendix A of the committee report contains proposed jury instruction
3.9(f) on eyewitness identification. The proposal was published in The Florida Bar
News. Comments to the proposed instruction were to be filed with the Court no
later than April 2, 2012. Comments were received from Assistant State Attorney
Richard Mantei, the Florida Public Defender Association, and the Innocence
Project of Florida. The committee filed its response to the comments on April 20,
2012. As of the date of this Final Report, the case is pending before the Court.

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The Florida Innocence Commission-Final Report
(b)

False Confessions
Until DNA evidence conclusively proved that some people who had

confessed to a crime were innocent, popular opinion and many courts assumed that
an innocent person would never confess to a crime that he or she did not commit.
Research into the cases and psychological studies have shown that people are more
apt to confess to a crime when subjected to certain interrogation techniques, and
that some categories of people, such as juveniles and mentally incapacitated
individuals, are especially susceptible to making a false confession.
The United States Supreme Court and Florida case law precedent is clear:
Law enforcement may use deception as an interrogation technique, and deception
is not in itself inherently coercive. Florida follows the majority of jurisdictions
that have the courts assess the voluntariness and reliability of a confession under a
totality of the circumstances test. The court must look at all of the circumstances
on a case-by-case basis to make sure that the interrogation was not unduly coercive
and that the defendant freely and voluntarily waived his or her Miranda rights.
The court may assess factors such as the defendant’s age, education and
experience, as well as the length and type of questions used in the interrogation.
The most commonly advocated method to reduce false confessions is to
require that confessions be electronically recorded. One state, Indiana, requires law
enforcement to electronically record custodial interrogations through a Supreme
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The Florida Innocence Commission-Final Report
Court order amending the state’s rules of evidence. Still another state, Maryland,
provides rules about electronic recordation contained within its code of criminal
procedure. And finally, New Jersey requires the recording of custodial
interrogations in a place of detention as adopted by court rule.
The reported cases of wrongful convictions, based on DNA evidence,
demonstrate that twenty-five percent were the result of false confessions. Of the
eleven exonerations in the State of Florida, three were related to false confessions.
The Commission studied this issue at the August 29, 2011 and October 10, 2011
meetings.
At the May 16, 2011 Commission meeting, the members were presented an
overview of the subject of false confessions by Judge Perry. In order to facilitate a
thorough review of the causes for false confessions, and to bring meaningful
recommendations back to the Commission, an internal workgroup was formed by
the Commission on that date. The chair of the workgroup was Dean Alex Acosta.
Participating members were Sheriff Bill Cameron, Ms. Nancy Daniels, Ms. Mary
Barzee Flores, Judge Patricia Kelly, Mr. Brad King, and Professor Kenneth Nunn.
The workgroup was asked to report back to the Commission at the August 29,
2011 meeting.
The workgroup conducted four telephonic conferences on June 21, July 11,
July 25, and August 15, 2011. The final work product of the group titled Standards
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The Florida Innocence Commission-Final Report
for Electronic Recording of Custodial Interrogations (the standards) was presented
to the Commission at the August 29, 2011 meeting. The standards are attached to
this report at Appendix J. The central theme of the standards is that law
enforcement agencies should be required to electronically record suspect
statements when there is a custodial interrogation. Although these standards were
not adopted by the Commission as a recommendation, they served as the model for
the Commission to ultimately recommend to the Florida Legislature a statutory
enactment requiring law enforcement to electronically record suspect statements.
Dean Acosta educated the Commission on the efforts of the workgroup at
the August 29, 2011 meeting. He noted that the standards were meant to be a
broad policy document. The Commission spent a considerable amount of time
reviewing the work product of the workgroup and made modifications to the
original standards. A full discussion of the Commission’s action regarding the
standards is set forth in the August 29, 2011 minutes, located at Appendix A.
At the August 29, 2011 Commission meeting, the members were briefed on
how other jurisdictions handle the recording of a suspect statement in criminal
cases through legislative enactments.
(1)

Illinois: Non-recorded statements are inadmissible. The state can

overcome inadmissibility by a preponderance of the evidence.

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The Florida Innocence Commission-Final Report
(2)

North Carolina: The statute requiring recording applies to homicide

cases. The state can overcome inadmissibility by clear and convincing evidence.
(3)

Texas: A statement is inadmissible unless recorded. The entire

statement is to be recorded.
(4)

Maine: Written policies for recording are required.

(5)

Missouri: Serious crimes shall be recorded. There is no remedy for

non-compliance. The Governor can withhold state funding if there is a lack of
good faith by law enforcement agencies.
(6)

Montana: Custodial interrogations should be recorded in a place of

detention.
(7)

Nebraska: A jury instruction is given if there is a failure to record.

(8)

New Mexico: Recording of a statement in felony cases is required

when feasible, unless exceptions apply.
(9)

Ohio: Felony statements of suspects are presumed admissible if

recorded.
(10) Oregon: Jury instructions are given on the statutory requirements for
electronic recording.
(11) Wisconsin: There is a state policy to record statements taken in
felony cases.

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There are exceptions to the recording requirement and they vary from state
to state. Some exceptions are: Statements made before a grand jury; statements
made on the record in court; custodial interrogations in another state; federal law
enforcement interrogations; spontaneous statements; statements made during
arrest; and statements made during recording equipment failure.
A few states have addressed the issue of recording of suspect statements
through court rules:
(1)

Indiana: The rule requiring recording has been adopted by Supreme

Court order.
(2)

Maryland: Recording is required by the code of criminal procedure.

(3)

New Jersey: The rule requires recording of custodial interrogations.

Five states have addressed recording of suspect statements through case law:
(1)

Alaska: Unexcused failure to not record a custodial interrogation

violates the due process clause of the Alaska constitution.
(2)

Iowa: Videotaping should be encouraged.

(3)

Massachusetts: If a confession is not recorded, the defense is entitled

to a cautionary jury instruction.
(4)

Minnesota: A statement that is not recorded is inadmissible if the

violation is substantial.

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The Florida Innocence Commission-Final Report
(5)

New Hampshire: There is no requirement to record, but if recorded,

the entire interrogation proceeding must be recorded.
At the August 29, 2011 meeting, the Florida Association of Criminal
Defense Lawyers (FACDL), through Ms. Nellie King, Esquire, and Mr. Russell
Smith, Esquire, addressed the Commission. FACDL urged the Commission to
recommend the recording of suspect statements as a means to reduce false
confessions for the following reasons:
(1)

Electronic recording promotes reliability by standardizing

interrogation techniques, allowing for easier review of techniques, allowing for
independent review, and distinguishing between officers who interrogate well and
those who do not.
(2)

Recording promotes efficacy by ensuring constitutional rights,

reducing claims of misconduct against law enforcement, protecting against errors
caused by language/mental conditions/substance impairment, allowing consistent
appellate review, and improving interrogation techniques by review of recordings.
(3)

Recording ensures transparency by permitting defense counsel and the

defendant to review the recording, allowing prosecutors to evaluate the defendant’s
statements, protecting defendants who speak English as a second language
(particularly important in a state as diverse as Florida), allowing courts to

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The Florida Innocence Commission-Final Report
accurately evaluate claims of improper police conduct, and improving the jury’s
ability to determine the evidentiary value of the defendant’s statements.
(4)

Many prosecutors, based on survey results, say that recordings help

them assess the strengths/weaknesses of the state’s case and help them prepare for
trial.
(5)

Section 112.532(1)(g), Florida Statutes (2011): Law enforcement

officers’ and correctional officers” rights states that the formal interrogation of a
law enforcement officer or correctional officer, including all recess periods, must
be recorded on audio tape, or otherwise preserved in such a manner as to allow a
transcript to be prepared, and there shall be no unrecorded questions or statements.
FACDL also noted that there are arguments against electronic recordings of
custodial interrogations:
(1)

Law enforcement agencies believe they can self-police. Therefore,

legislation is not necessary.
(2)

The cost of electronic recording is costly. FACDL countered that

recording devices are a reasonable cost and there are virtually no storage costs for
digital media.
(3)

A recording policy should be determined at the local level. FACDL

commented that this would (A) create a patchwork of policies (B) encourage
defense counsel to say that a jurisdiction does not use “best practices” and
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The Florida Innocence Commission-Final Report
therefore request a jury instruction (C) cause justice to be administered differently
throughout the state, and (D) increase the likelihood that courts will decide the
issue.
Additional benefits of recording are less time between arrest and disposition
of a case, fewer suppression hearings, smaller likelihood of hung juries, fewer
frivolous appeals, less post-conviction litigation, and lower systemic costs.
As a centerpiece of criminal justice reform, recorded interrogations can help
reduce the need for the use of informants and in cases where recorded
interrogations result in inculpatory statements, they integrate with eyewitness
identifications to strengthen the prosecution’s case.
At the October 10, 2011 meeting, retired police detective James Trainum of
the Metropolitan Police Department, Washington, D.C., addressed the
Commission. Mr. Trainum is considered one of the leading experts on the use by
law enforcement of electronic or video recording of suspect interrogations.
Mr. Trainum gave a video and PowerPoint presentation to the Commission
on false confessions. His presentation and the minutes discussing the questions
and comments of Commission members are attached at Appendix B.
Mr. Trainum stated that recording is the gold standard in false confessions.
Videotaping will not eliminate false confessions, but the Reid technique (Criminal

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The Florida Innocence Commission-Final Report
Interrogation and Confessions, Inbau, Reid, Buckley and Jayne, 5th Edition) does
not suggest that recordings not be utilized.
Mr. Trainum covered three main topic areas before the Commission:
(1)

The interrogation, including any pre-interview, and Miranda, should

be videotaped in its entirety.
(2)

Videotaping needs to be mandatory.

(3)

There needs to be sanctions in place if videotaping does not take

place.
As explained by Mr. Trainum, the reasons for videotaping are:
(1)

Presentation of the best evidence

(2)

Increases public confidence and trust

(3)

More confessions

(4)

More incriminating evidence obtained

(5)

Detectives become better interrogators

(6)

Less time is spent in court

(7)

There are more guilty pleas

(8)

There are fewer lawsuits

Mr. Trainum noted the differences between unrecorded oral statements and
videotaping. There is no question regarding what the witness stated when there is
videotaping. Mr. Trainum has seen an increase in the number of incriminating
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The Florida Innocence Commission-Final Report
statements when videotaping was used. He commented that before he used
videotaping he had missed incriminating comments that can be picked up by the
recording. He believes that videotaping makes investigators better interrogators.
Videotaping is a great learning tool. In addition, videotaping helps to prevent
lawsuits for wrongful incarcerations.
Mr. Trainum made the following points regarding videotaping:
(1)

Videotaping will not prevent a false confession but may pick up subtle

information that may lead to an exoneration.
(2)

Good detectives may push the envelope when recording is not utilized

during an interrogation.
Mr. Trainum noted that a false confession is not easy to identify. At times
law enforcement unintentionally contaminates the interrogation. Investigators ask
a lot of leading questions. When witnesses guess when answering a question, the
investigator tends to remember the incriminating answers. By using techniques
that contaminate the interrogation, investigators help the suspect build the full
story. The Reid technique teaches that you have to go beyond “I did it.” The only
way to prove there was no contamination is to videotape from start to finish. Mr.
Trainum stated that he had two false confession cases, and he discovered the
second one because of what he had learned from the first one.

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The Florida Innocence Commission-Final Report
Mr. Trainum advised that there are law enforcement objections to
videotaping.
(1)

The suspect will never confess if the statement is recorded. His

response was that law enforcement officers are the best salesmen in the world. He
always felt he could get a suspect past any concerns regarding videotaping if he
could obtain a waiver of the Miranda warning. Most suspects assume they are
being videotaped anyway, so statements are not the problem. Investigators want a
controlled environment, not a statement on the street, so this is only a problem if
law enforcement tries to interrogate outside the room.
(2)

Videotaping will show the techniques that investigators use. That was

not a concern to Mr. Trainum, noting that suspects are already aware of
investigative techniques.
(3)

There is a cost factor for law enforcement. Mr. Trainum countered

that the equipment costs are going down, most agencies have recording capabilities
and agencies can obtain grants for funding. He stated that videotaping results in
more confessions not being challenged and therefore there is less court time for
investigators.
(4)

There are costs associated with transcribing the tapes. Mr. Trainum

commented that in Washington D.C., the investigators do not transcribe every
videotape.
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The Florida Innocence Commission-Final Report
According to Mr. Trainum, the problems with videotaping are no different
than other issues that law enforcement deal with. He believes that videotaping
must be mandatory and sanctions should be applied for failure to record. Mr.
Trainum stated that if videotaping was not legislated, the agencies would not do it.
He said it was much like seatbelt enforcement. People would not wear one unless
required to do so. He commented that there needs to be a policy in place to be sure
the equipment is available and properly maintained. In Washington D.C., there is a
rebuttable presumption that the confession was involuntary if it was not recorded.
Mr. Trainum said you could turn this around and make the statement
presumptively admissible if it were recorded.
At the October 10, 2011 Commission meeting, the Commission members
were briefed on what action or recommendations other states have taken with
regard to recording of suspect statements. The briefing included references to the
Pennsylvania Report on the Advisory Committee on Wrongful Convictions, and
New Jersey Court Rule 3.17. In addition, staff provided to the Commission two
proposed statutes and two proposed rules of evidence addressing the recording of
suspect statements. These four documents were drafted using the workgroup’s
Standards for Electronic Recordation of Custodial Interrogations. A full discussion
of the PowerPoint presentation and the thought processes of the Commission

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The Florida Innocence Commission-Final Report
members are contained in the minutes of the October 10, 2011 meeting at
Appendix B, Section VI, pages 11-19.
At the October 10, 2011 meeting, Mr. Hill made a motion to recommend to
the Florida Legislature that a statute under the Florida Evidence Code be enacted
making it clear that law enforcement shall record suspect statements during a
covered custodial interrogation. Included in the statutory language would be a
waiver of any civil liability for failure to comply with the provisions of the statute.
In addition, the specific offenses listed in section 775.084(1)(c)1, Florida Statutes,
(2011), would be listed. As part of the motion, Mr. Hill stated that there should be
an accompanying criminal jury instruction modeled after the New Jersey jury
instruction. This motion passed by a vote of 12 to 7. Commission members
Barnett, Barzee, Coxe, Daniels, Hill, Pate, Perry, Porth, Silvernail, Smith,
Snurkowski, and Walbolt voted yes. Commission members Bailey, Cameron,
Fingerhut, Negron, Nunn, Reyes, and Sireci voted no.
The proposed statute mandates that law enforcement agencies electronically
record suspect statements during a covered custodial interrogation. A recording
can be either an audio or video recording. The term “covered custodial
interrogation” is defined in the proposal. The proposed statute does not require
that a suspect statement be recorded for all criminal offenses. The offenses that
require recording are listed. The recording should include the requisite Miranda
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The Florida Innocence Commission-Final Report
warnings and any waiver of the rights afforded by those warnings. Law
enforcement may meet the requirements of the statute by covertly recording
suspect statements, since there is no prohibition in Florida against recording
without the knowledge of the suspect. The failure to electronically record a
suspect statement is a factor that the trial court can consider in determining the
admissibility of a suspect statement. A failure to record may also be considered by
the jury in determining whether the statement was made and what weight, if any, to
give to the statement. In the event law enforcement failed to record a suspect
statement, upon request from the defendant, a cautionary instruction would be
given to the jury. The proposed statute is attached to this report at Appendix L.
A proposed jury instruction is attached to this report at Appendix M. Since
the proposed statute mandates electronic recording, the instruction advises the jury
to weigh with great caution any non-recorded oral statement offered by the
prosecution.
The jury instruction and statute are tied together. In the event the Florida
Legislature was to adopt the Commission’s recommendation and enact a statute,
the proposed jury instruction would be submitted to the Court. The Court would
be asked to forward the proposed instruction to the Supreme Court Committee on
Standard Jury Instructions in Criminal Cases for its review and possible
submission to the Court via a petition. As of this date, no action on the
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The Florida Innocence Commission-Final Report
Commission recommendation that a statute be adopted has been taken by the
Florida Legislature. Therefore, the proposed jury instruction is submitted to the
Court for informational purposes only.
The members who cast a “no” vote expressed different reasons for not
voting for the proposal. Professor Nunn and Senator Negron did not believe the
proposal went far enough. Both of these members believed the statutory proposal
should be written is such a way that a non-recorded statement would be
inadmissible, absent the state being able to demonstrate that the non-recording met
a specific statutory exemption. Professor Nunn also felt that the proposed jury
instruction was not going to carry any weight with a jury. Mr. Fingerhut
commented that for the proposal to have any teeth there should be a presumption
of inadmissibility if a statement is not recorded. Sheriff Cameron, Commissioner
Bailey and Chief Sireci did not believe a statute mandating recording was
necessary. Sheriff Cameron noted that less than one-half of one percent of all
criminal cases involves a false confession. Sheriff Cameron was not opposed to a
jury instruction, but he thought the proposal was one that the prosecutors would
not accept. Mr. Reyes was opposed to using another jurisdiction’s jury instruction.
He felt it would be a better recommendation for the Commission to make a
modification to current criminal jury instruction 3.9(e), by referencing videotaping
or electronic recording.
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The Florida Innocence Commission-Final Report
On October 20, 2011, Judge Perry sent a letter to the Honorable Mike
Haridopolos, President of the Florida Senate, and to the Honorable Dean Cannon,
Speaker of the Florida House of Representatives, advising the Legislature of the
Commission’s action. The letter is attached at Appendix K. Attached to the letter
is the Commission’s proposed statute and proposed jury instruction.
(c)

Law Enforcement Interrogation Techniques
As part of the ongoing examination by the Commission of false confessions,

Professor Nunn asked the Commission to examine the practices of law
enforcement agencies when interrogating individuals suspected of committing
criminal offenses. Of particular concern to Professor Nunn is the law enforcement
practice of using deceptive techniques when questioning suspects.
At the December 12, 2011 meeting, Judge Perry used a PowerPoint
presentation to assist the Commission in examining the issue. The purpose of the
presentation was to educate the members on both federal and state case law
addressing the use of deceptive techniques by law enforcement in order to obtain a
confession from a suspect.
Although there are several United States Supreme Court opinions that
address law enforcement interrogation tactics, the leading case appears to be
Frazier v. Cupp, 394 U.S. 731 (1969). The issue in Frazier was whether the
deceptive tactic deployed by law enforcement produced an inherently unreliable
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The Florida Innocence Commission-Final Report
statement. In other words, were the misrepresentations so egregious to overcome
the defendant’s will so as to render the confession involuntary? In Frazier, the
police lied to the defendant by telling him that a partner to the crime had already
confessed. The court held that police deception is “not alone sufficient to render a
confession inadmissible.”
In Lynumn v. Illinois, 372 U.S. 528 (1963), the United States Supreme Court
considered this set of facts: The defendant was convicted of the unlawful
possession and sale of marijuana, and sentenced to imprisonment. Her conviction
was sustained by the Illinois Supreme Court, notwithstanding the admission in
evidence at her trial of an oral confession obtained by threats of police officers
that, if she did not "cooperate," she would be deprived of state financial aid for her
dependent children and that her children would be taken from her and she might
never see them again. The U.S. Supreme Court held that the confession was
coerced and its admission in evidence violated the Due Process Clause of the
Fourteenth Amendment of the United States Constitution.
Although various state and federal courts have approached the issue of
deceptive police tactics, the Hawaii Supreme Court published an opinion that is
often cited in the literature. In State v. Kelekolio, 849 P. 2d 58 (1993), the court
distinguished between permissible and impermissible police deception.
Falsehoods intrinsic to the alleged offense, such as a lie about the evidence, are
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The Florida Innocence Commission-Final Report
treated as one of the totality of the circumstances surrounding the confession.
Falsehoods extrinsic to the facts of the alleged offense, which are of a type that are
reasonably likely to procure an untrue statement regardless of guilt, are treated as
coercive per se.
In an early Florida Supreme Court case, Denmark v. State, 116 So. 757
(1928), the court stated that it is a fear of material or physical harm, or hope of
material reward, that makes a confession inadmissible. However, a confession
voluntarily made, but procured by artifice, falsehood, or deception, is admissible.
In Halliwell v. State, 323 So.2d 557 (1975), the Florida Supreme Court
stated that incorrect or misleading statements made to a defendant by law
enforcement do not necessarily invalidate a confession. This is especially true
when there is no doubt that the defendant was read his or her Miranda rights and
stated he or she understood them. In this case, law enforcement had advised the
defendant, after a waiver of rights had been obtained, that an accomplice had
confessed to the crime.
A Florida appellate case, State v. Cayward, 552 So.2d 971 (2nd DCA 1989),
has been cited by other state courts, in legal treatises, and law review articles.
In Cayward, the Second District Court of Appeal considered a case involving the
sexual assault and murder of a five-year-old girl. The police decided to create false
documents to aid them in their interview of the suspect. A letter from a state
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The Florida Innocence Commission-Final Report
agency and a private laboratory, on official letterheads, both reported that semen
stains on the victim’s underwear were from the suspect. During the interrogation,
the suspect was shown the false documents, which were offered as genuine. At the
end of the interview, he confessed.
The court upheld the suppression of the confession by the trial court. The
appellate court acknowledged that police deception is a factor that affects
voluntariness and does not render a confession involuntary per se. Nonetheless,
the appellate court found a qualitative difference between oral deceptions and the
use of fabricated documents or physical or tangible evidence. The use of these
documents violated due process. In addition, the court was concerned that a false
report might be retained in a police file and could potentially end up in court in a
later case cloaked with an aura of authenticity.
Brief synopses of other cases that discuss the use of deception by law
enforcement are attached as part of the December 12, 2011 Commission minutes,
located at Appendix C of this report.
Professor Nunn made a presentation to the Commission after the members
were briefed by Judge Perry. Professor Nunn was concerned that the Commission
had failed to suggest or recommend good practices for the control of police
conduct during a law enforcement interrogation of a suspect. He felt that the

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The Florida Innocence Commission-Final Report
conduct of law enforcement officers in conducting an interrogation could lead to
false confessions.
Professor Nunn used a PowerPoint presentation to cover the following
topics:
(1)

States have the power to regulate interrogation techniques

(2)

False confessions do happen

(3)

Not all false confessions are “involuntary” confessions

(4)

False confessions can be caused by interrogation techniques

(5)

Proposals to change interrogation techniques to prevent false
confessions

Professor Nunn told the Commission that there are two main areas to discuss
where the United States Supreme Court has addressed police interrogations:
Miranda and voluntary confessions. He noted that in these areas a state can
provide greater protections than those afforded under the U.S. Constitution. One
exception to this general rule is that Florida must conform its search and seizure
laws to the 4th Amendment of the U.S. Constitution as interpreted by the U.S.
Supreme Court. This is required under Article 1, Section 12, of the Florida
Constitution. There is no restriction on Florida courts in the Florida Constitution
regarding 5th Amendment matters.

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The Florida Innocence Commission-Final Report
Professor Nunn stated that false confessions do indeed happen. They have
been uncovered through DNA testing or by a finding that another person has
committed the offense.
Professor Nunn commented that it is the task of the Commission to reduce
the number of wrongful convictions. He stated that fourteen percent of the
exonerations in Florida are the result of false confessions.
Professor Nunn noted that false confessions can arise as a result of police
interrogation techniques. Several techniques have been identified that can lead to
false confessions. These are:
(1)

Presentation of false evidence

(2)

Lengthy interrogations

(3)

Physical custody and isolation

(4)

Minimalization

(5)

Promises of leniency

(6)

Youth and mental deficiencies

Professor Nunn drew the Commission’s attention to an article written by
Professor Welsh S. White titled “False Confessions and the Constitution:
Safeguards against Untrustworthy Confessions,” 32 Harvard Civil Rights and
Civil Liberties Law Review 105 (1997). Professor White sets forth the following
safeguards against untrustworthy confessions:
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The Florida Innocence Commission-Final Report
(1)

Restricting police interrogations of especially vulnerable suspects

(2)

Limiting the length of police interrogations

(3)

Prohibiting trickery likely to induce a false confession

(4)

Prohibiting promises likely to induce a false confession

(5)

Videotaping interrogations of suspects

Professor Nunn, by way of a motion, asked the Commission to make the
following recommendations:
(1)

Interrogations should not last more than six hours. If a subject has

been interrogated or held in an interrogation room for longer than 5 and 1/2 hours,
he or she should be permitted to rest for at least three hours before being
interrogated again.
(2)

Subjects of interrogation should not be confronted with fabricated or

false scientific evidence of guilt. This prohibition would prohibit the fabrication of
scientific reports, tapes, photographs, and other scientific evidence, including false
DNA evidence, fingerprints and video recordings.
(3)

Police should be especially careful when dealing with juvenile,

immature, mentally incapacitated and mentally ill subjects. In such cases, it is
recommended that the police be required to follow the recommendations of the
Illinois Commission on Capital Punishment on interrogating the mentally
incapacitated.
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The Florida Innocence Commission-Final Report
(4)

Police should be required to make a reasonable attempt to determine a

suspect’s mental capacity (age and mental status) before interrogation, and if a
suspect is determined to be mentally incapacitated, (mentally ill or a juvenile under
the age of fifteen), the police should be limited to asking non-leading questions and
prohibited from implying that they believe the suspect is guilty. This
recommendation follows the Illinois Commission proposals.
The United Kingdom has already adopted proposals on how suspects should
be interrogated. They have rejected the Reid technique and there has not been a
rate of change in the number of confessions since the rules have been in place in
the 1990’s. Professor Nunn noted that these proposals were adopted in New
Zealand and in English-speaking common law countries. Professor Nunn said that
in relation to those processes and procedures, what he has suggested to the
Commission is quite conservative and limited and it would be an excellent idea for
the Commission to step forward and follow the scientific literature that is available.
Professor Nunn said that it is important that law enforcement not use manipulation
when obtaining a statement from the suspect.
A complete discussion and member comments regarding Professor Nunn’s
motion is contained in the December 12, 2011 minutes, at pages 9-17. The
minutes and PowerPoint presentations are attached at Appendix C.

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The Commission voted on Professor Nunn’s motion. His motion failed by a
vote of 17 to 4.
(d)

Informants and Jailhouse Snitches
According to the Innocence Project, an in-custody informant (“jailhouse

informant”) testified in over 15% of wrongful conviction cases later overturned
through DNA testing. Of the exonerees released from death row, 45.9% were
convicted, in part, due to false informant testimony. This makes fabricated
testimony a leading cause of wrongful convictions in capital cases. Further studies
have shown that informant perjury was a factor in nearly 50% of wrongful murder
convictions.
While the justice system trusts that jurors will be able to determine whether
a jailhouse informant is credible or not, an intriguing study conducted by social
scientists Paul Eckman and Maureen O’Sullivan tested accuracy rates of different
groups of people at detecting deception by actual inmates. The group with the
highest accuracy rate for detecting inmate deception, U.S. Secret Service agents,
was correct only 64% of the time.
Other states and national policy institutions have recognized the dangers of
false informant and jailhouse snitch testimony. The four main reforms that have
been advocated are: A testimony corroboration requirement, a pre-trial reliability

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The Florida Innocence Commission-Final Report
hearing, a cautionary jury instruction, and requirements for prosecutorial
disclosures.
The Commission has identified two distinct types of informant testimony.
One type is the individual who is confined in a location where he or she may have
direct or indirect contact with other inmates. The terms “in-custody informant,”
“jailhouse informant” or “jailhouse snitch” are used in several states to describe
this witness. The other type of witness is identified by the term “informant” or
“street informant” who provides information to law enforcement. All of the
studies and reports concerning these two types of witnesses agree that the vast
majority of informant cases involving wrongful convictions stem from the incustody or jailhouse snitch witness.
Numerous commission reports have advocated four main ways to reduce the
risks associated with jailhouse informant testimony.
(1)

Requiring that informant testimony be corroborated with independent

evidence (excluding the testimony of another informant) in order to be used at trial.
Eighteen states already require that accomplice testimony be corroborated.
(2)

Cautionary jury instructions that tell jurors to weigh the testimony of

an informant.
(3)

Pre-trial reliability hearings, similar to ones held for the admission of

expert testimony.
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The Florida Innocence Commission-Final Report
(4)

A requirement that the prosecution disclose information such as an

informant’s criminal history, testimony in other cases, financial compensation or
reduction in sentence, to the defense.
It is important to note that other state commissions have principally
addressed in-custody informant testimony. New York’s commission addressed
jailhouse snitches as a main problem, but the recommendations in the report cover
all informants. The commission recommended (A) corroboration (B) a jury
instruction (C) videotaping of informant statements and (D) best practices for
prosecutors.
The California commission recommended (A) best practices for district
attorneys (B) written disclosures and (C) a statute requiring corroboration of
informant testimony. California enacted Senate Bill 687 in 2011, to require
corroboration of in-custody informant testimony.
The Illinois commission recommended (A) written disclosures and (B) a
pretrial reliability hearing in capital cases. Illinois enacted a statute requiring a
pre-trial reliability hearing for in-custody informant testimony. If the state does
not prove reliability of the statement by a preponderance of the evidence, the
testimony is excluded. The hearing is confined to capital cases. Illinois is the only
state in the nation to enact such a requirement.

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The Florida Innocence Commission-Final Report
The recent report of the Pennsylvania Committee on Wrongful Convictions
has recommended (A) a cautionary jury instruction for jailhouse informants (B) a
pretrial reliability hearing (C) written disclosures and (D) law enforcement should
electronically record statements given to a jailhouse informant by a suspect.
In a 2005 resolution, the American Bar Association (ABA) recommended
prosecutorial screening of jailhouse informant testimony. In addition, the ABA has
recommended that jailhouse informant testimony be corroborated.
A full discussion of the topic of informants and jailhouse snitches took place
at the December 12, 2011 Commission meeting. The PowerPoint presentation by
Judge Perry and the full discussion of the topic by Commission members are
attached at Appendix C.
The Commission discussion condensed the topic area into the following
categories:
(1)

Statutory corroboration of an informant or jailhouse snitch testimony

(2)

Cautionary jury instructions

(3)

Pretrial reliability hearings

(4)

Pretrial disclosures by the state

Several Commission members offered various suggestions on the best
method or methods to address jailhouse snitches and informants. Judge Perry felt
that a jury instruction would be appropriate and directed the members’ attention to
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The Florida Innocence Commission-Final Report
the instruction used by the federal court in the Eleventh Circuit. Ms. Daniels also
expressed support for the Eleventh Circuit instruction and for a pretrial reliability
hearing. Mr. Coker also expressed support for such a hearing. Mr. Fingerhut
asked whether the Commission should consider a corroboration statute similar to
those in Texas and California. Sheriff Cameron supported the Oklahoma jury
instruction. Mr. Coxe noted that this was a serious problem and hoped that the
members would not just dispense with the issue by only recommending a jury
instruction.
Mr. Coxe favored the Illinois pretrial reliability hearing approach. Judge
Kelly agreed with Mr. Coxe that the Illinois model was the way to screen
informant testimony.
Mr. Reyes suggested that rule 3.220 of the Florida Rules of Criminal
Procedure could be amended to add references to an incarcerated witness or
informant. Professor Nunn pointed to the Illinois statute as being the most
comprehensive. He too was not satisfied that a jury instruction would solve the
problem. The professor also was in favor of requiring corroboration of any
informant testimony.
Mr. Coxe moved that Commission staff draft standards to be considered by
the trial judge at a pretrial hearing to determine the reliability of an informant’s
statement. The pretrial hearing would be conducted for a statement or statements
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The Florida Innocence Commission-Final Report
made by the defendant to a jailhouse snitch, informant, or any person who has a
pending criminal prosecution. No single factor would block the admissibility of
the statement (including lack of corroboration). However, even if the state has
other evidence, a hearing would be required. The motion was seconded by Ms.
Walbolt. The motion passed with Ms. Snurkowski dissenting.
Judge Perry directed staff to review the Eleventh Circuit’s jury instruction
and consider adding parts of the Connecticut and Oklahoma Instructions.
During the February 13, 2012 meeting, the members reviewed Commission
staff proposals for a statute requiring a pretrial admissibility hearing, and a model
Florida jury instruction. The minutes of the Commission meeting that set forth the
full discussion of the members is attached at Appendix D.
Mr. Smith noted that a statute requiring a pretrial admissibility hearing
would add to the expense of a case. Creating a statute would add great difficulty in
cases and is designed to take away the decision making from the finder of fact. He
said that Florida does not require an admissibility hearing with regard to
codefendant testimony. Mr. Smith said there was nothing out there that suggested
to him that we need to radically change the law in Florida. He commented that if
he wanted a judge to make a decision, he would waive the right to a jury trial. This
can be taken care of by a jury instruction. Having a hearing in all felony cases

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would be too expensive. It might be possible to hold such a hearing in a death
penalty case, but he still would not support any legislation creating such a hearing.
Dean Acosta felt that given the burden already on the court system, a statute
would place even greater stress on the courts even if the hearings were limited to a
small number of felony cases.
Ms. Barzee agreed with Mr. Smith’s stance. Juries need to know how to
evaluate witness testimony (such as expert witnesses). Therefore, there should be
an instruction on how to evaluate a witness. But, it is not in the court’s province to
pick and choose the witnesses, no matter how unreliable. Allowing this creates a
separation of powers problem.
Mr. Coxe felt that if the statute were confined to jailhouse statements there
would be no impact on court resources or court time. He said that he was not
talking about out-of-custody informants. Courts do determine prior to trial the
admissibility of expert witnesses. If it is important enough for an expert, it is
important enough for a court to decide if informant testimony is credible. He
reiterated that he was not talking about the broad spectrum of informants.
Mr. Hill said that in civil practice this is the equivalent of a Daubert hearing
and this can go on for days. He felt the Commission was building in some real
potential problems.

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Sheriff Cameron agreed with Mr. Smith that this is a jury issue and should
remain so.
Mr. King said he was concerned. If a jury is willing to listen to a witness
and convict the defendant based on a reasonable doubt standard, the court, using a
lower burden, would be deciding not to have the witness testify. This is turning the
system on its head. It is wrong to single out that one group.
Mr. Smith noted that the legal test is whether the science is reliable and
whether the witness has the requisite expertise. But the court does not decide
whether to believe the witness. In child hearsay cases it is a competency question,
not one of believability. He said the Commission was about to go to the very heart
of what a jury does – decide who to believe. The question of whether you believe
the witness is solely a jury question.
A motion was made by Sheriff Cameron not to recommend to the Florida
Legislature that a statute be enacted requiring a pretrial admissibility hearing. The
motion carried by a vote of 16 to 5. Judge Kelly, Mr. Fingerhut, Mr. Coxe, Ms.
Daniels, and Professor Nunn (via proxy) opposed the motion.
A motion was made and seconded to recommend that the Court adopt the
Eleventh Circuit jury instruction on informant testimony. The only change in the
instruction was to change the word “government” to “state.”

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Mr. Smith commented that institutionally there is a reason to have a jury
instruction. His concern is about how the jurors should weigh this. He noted that
the Eleventh Circuit instruction has been tested over time. History has shown that
cases in the Eleventh Circuit have not led to excessive acquittals. This instruction
tells the jury to weigh the testimony with more caution. The Eleventh Circuit
instruction is easy to adopt and it is workable.
Sheriff Cameron said he was a full supporter of a jury instruction, but it
needed to be neutral.
The Commission approved the motion to recommend to the Court that the
Eleventh Circuit instruction be adopted for use in Florida criminal cases. The vote
was 21 to 1. Since the Commission does not have the authority to petition the
Court for the adoption of a jury instruction, the Commission recommends that the
Florida Supreme Court ask the Supreme Court Committee on Standard Jury
Instructions in Criminal Cases to consider recommending to the Court an adoption
of an instruction that mirrors the Eleventh Circuit. Sheriff Cameron opposed the
motion. He took exception to the terms “must” and “should” in the current
instruction of the Eleventh Circuit, which reads in part: “You must consider some
witnesses’ testimony with more caution than others … So while a witness of that
kind may be entirely truthful when testifying, you should consider that testimony
with more caution than the testimony of other witnesses.” Sheriff Cameron
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believed the instruction should read, in part: “You may consider some witnesses’
testimony with more caution than others … So while a witness of that kind may be
entirely truthful when testifying, you could consider that testimony with more
caution than the testimony of other witnesses.”
In drafting a proposed jury instruction, Commission staff included nine
factors that may be considered by the jury when considering the testimony of an
informant witness. Judge Perry asked the members if they wanted to include any
of the factors in the Eleventh Circuit instruction.
Mr. King said those factors are all contained in the general instructions that
are given to the jury in standard jury instruction 3.9 (Weighing the Evidence). He
thought that giving to the jury a detailed list subjects that testimony to being overly
evaluated and almost is a comment on the evidence. He advised it was better to let
the lawyer argue the current cautionary instruction.
Mr. Hill agreed and said the laundry list in the staff instruction goes well
beyond what is needed. These factors can be argued by the lawyers to the jury.
Ms. Barzee and Mr. King informed the members that there is a current
standard jury instruction given to the jury in state court. That instruction and the
informant instruction would cover all that is needed to fully instruct the jury.
Dean Acosta noted that as the time to finish the Commission work ebbs,
getting things done on recommendations that have a chance of passing is where the
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Commission should go. There is a better chance of adoption if the Eleventh
Circuit instruction is presented to the Court as written.
Judge Perry asked if there was a motion to leave the Eleventh Circuit
instruction as is and not add any additional factors. A motion was made and
seconded to not make any substantive changes to the Eleventh Circuit instruction.
The motion passed by a unanimous vote. The proposed jury instruction to be
forwarded to the criminal jury instructions committee is attached at Appendix N.
Additional state and federal jury instructions that the Supreme Court Committee on
Standard Jury Instructions in Criminal Cases may wish to review are attached at
Appendix O.
At the December 12, 2011 meeting, the Commission began to consider any
possible amendments to Florida’s criminal procedure rules and how current rule
3.220 addresses the disclosure and testimony of jailhouse snitches and informants.
Judge Perry formed a pretrial disclosure workgroup to be chaired by Mr. Scott
Fingerhut. Members of the workgroup included Judge Silvernail, Ms. Daniels, Ms.
Walbolt, Mr. King, and Mr. Coxe. The workgroup was directed to focus on
amendments to rule 3.220 to require additional disclosures when the state was
going to introduce the testimony of a jailhouse snitch or informant regarding
statements made to, or overheard by, the snitch or informant while the witness was
incarcerated with a defendant in a criminal case.
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At the February 13, 2012 meeting in Orlando, Mr. Fingerhut briefed the
Commission members on the progress of the workgroup.
The workgroup agreed that given the troubling incidence of wrongful
convictions in cases involving "jailhouse informants,” two areas needed to be
addressed: (1) Disclosure of the existence of the jailhouse informant and (2)
highlighting the disclosure, despite any discovery rule redundancies.
The workgroup then addressed two predominant matters: First, the
workgroup discussed the independent identification of the "jailhouse informant" as
a Category A witness under Florida Rule of Criminal Procedure 3.220(b)(1)(A)(i).
The workgroup acknowledged that the rule requires the listing of a witness or
witnesses to any statement of the accused, provides for listing the address of the
witness, provides for disclosing the statement of the witness, provides disclosure of
the substance of any oral statement made by the accused, and sets forth sanctions
which can befall the prosecution for nondisclosure. However, the sentiment was
also expressed that, despite the apparent clarity of the rule, there nonetheless exists
considerable flux in the manner in which the rule is interpreted and implemented
by prosecutors’ offices across the state. Therefore, in order to improve on the
possibility of preventing wrongful convictions, more specific disclosure is
imperative.

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Second, the workgroup considered several ways in which to highlight and in
some instances supplement the prosecutor's discovery obligation under Rule
3.220(b). In doing so, the workgroup recognized Florida's liberal discovery rules,
generally (and the deposition process in particular), and remained sensitive neither
to task prosecutors with inordinately difficult, if not impossible, fact-finding, nor
unduly burden the prosecution with "doing the defendant's work" to prepare for
trial. The workgroup was reticent to create unnecessary or unwarranted litigation
for the trial and appellate courts.
Accordingly, the subcommittee thought it wise to preface some, if not all, of
any new and/or specifically-expressed discovery obligations with the following
language: "to the extent the prosecution has actual knowledge" of the information
requested, as well as encourage "substantial compliance" (and Richardson hearings
for noncompliance) as the benchmark.
The workgroup considered to the extent actually known by the prosecution,
the following criteria:
(1)

The substance of the statement allegedly made by the accused against

whom the informant witness may testify;
(2)

The time, place, and any other corroborative circumstances under

which the alleged statement by the accused was made;

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(3)

Whether the informant witness has received anything in exchange for,

or subsequent to, his or her testimony (including any deal, promise, inducement,
pay, leniency, immunity, personal advantage, vindication, or other benefit that the
prosecution, or any person acting on behalf of the prosecution, has knowingly
made or may make in the future);
(4)

The informant witness' prior history of cooperation, including the case

name, case number, and jurisdiction in which the informant witness has previously
testified;
(5)

The criminal history of the informant witness (subject, of course, to

any legitimate restrictions placed on the prosecution and FDLE to retrieve such
information); and
(6)

Any other evidence relevant to the informant witness' credibility.

The workgroup also discussed situations in which an informant witness has
offered statements against an accused but was either not called by the prosecution
to testify or whose testimony was otherwise not admitted in the case, as well as
situations in which an informant witness recants or materially changes his or her
testimony.
Mr. Fingerhut advised that the workgroup had not been able to finalize any
suggested amendments to rule 3.220 based on the above-listed criteria. Mr.
Fingerhut advised the Commission that continuing teleconferences with workgroup
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members would be needed. A full discussion of the briefing by Mr. Fingerhut, and
the Commission discussion, is included in the Commission minutes, pages 2-15.
The minutes are attached at Appendix D.
At the March 12, 2012 meeting, Mr. Fingerhut reported that the workgroup
was continuing its work on rule 3.220. The workgroup looked at materials
provided by staff, internal policies, best practices, training programs, and materials
from California, Pennsylvania, the Justice Project and the American Bar
Association.
Mr. Fingerhut told the members that critical input had been received from
the Florida Prosecuting Attorneys Association (FPAA), and the workgroup was
also considering comments from other members of the Commission. Mr.
Fingerhut told the members that there was some thought about recommending a
centralized database containing a list of informants. The workgroup was in
agreement as to the structure of the rule amendment. The group needed to add the
term “informant witness” to the rule and specify disclosure requirements. An
“informant witness” is defined as a person who is in custody and who offers to
testify against the defendant. The group was working on an introductory clause,
and a summary or criminal history statement. There were still some differences on
what disclosure should be made describing the circumstances under which a
statement was made. There also had been a discussion among the workgroup
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regarding disclosure of the jail cell location, and who was present when a
statement was made. Mr. Fingerhut advised there would be a full report at the next
meeting.
Judge Perry asked Mr. Fingerhut if there were any disagreements among the
members of the workgroup. Mr. Fingerhut said one issue was who is tasked with
the knowledge concerning the informant. Should knowledge be imputed to the
entire staff or to an individual prosecutor? Is the knowledge requirement one of
actual knowledge? The workgroup was attempting not to build in a Richardson
(Richardson v. State, 246 So. 2d 771 (Fla. 1971)) inquiry.
On April 16, 2012 and May 21, 2012, the Commission brought closure to
any recommended amendment to rule 3.220 of the Florida Rules of Criminal
Procedure. The minutes of the meetings set forth the full discussion of the
members, and the ultimate conclusions and recommendations reached by the
Commission. The minutes are attached at Appendix F and Appendix H.
The relevant parts of rule 3.220(b)(1) that were discussed by the workgroup
and the full Commission are set forth below.
(b) Prosecutor’s Discovery Obligation.
(1) Within 15 days after service of the Notice of Discovery, the prosecutor shall
serve a written Discovery Exhibit which shall disclose to the defendant and permit

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the defendant to inspect, copy, test, and photograph the following information and
material within the state’s possession or control:
(A) a list of the names and addresses of all persons known to the prosecutor to
have information that may be relevant to any offense charged or any defense
thereto, or to any similar fact evidence to be presented at trial under section
90.404(2), Florida Statutes. The names and addresses of persons listed shall be
clearly designated in the following categories:
(i) Category A. These witnesses shall include (1) eye witnesses, (2) alibi
witnesses and rebuttal to alibi witnesses, (3) witnesses who were present when a
recorded or unrecorded statement was taken from or made by a defendant or
codefendant, which shall be separately identified within this category, (4)
investigating officers, (5) witnesses known by the prosecutor to have any material
information that tends to negate the guilt of the defendant as to any offense
charged, (6) child hearsay witnesses, and (7) expert witnesses who have not
provided a written report and a curriculum vitae or who are going to testify.
(B) the statement of any person whose name is furnished in compliance with the
preceding subdivision. The term statement as used herein includes a written
statement made by the person and signed or otherwise adopted or approved by the
person and also includes any statement of any kind or manner made by the person
and written or recorded or summarized in any writing or recording. The term
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statement is specifically intended to include all police and investigative reports of
any kind prepared for or in connection with the case, but shall not include the notes
from which those reports are compiled;
(C) any written or recorded statements and the substance of any oral statements
made by the defendant, including a copy of any statements contained in police
reports or report summaries, together with the name and address of each witness to
the statements.
The Commission recognizes that the current rule requires, among other
things, that the state furnish to the defendant the name and address of any person
who has information relevant to the offense charged. In addition, the state is
obligated to furnish any statement of a person who has relevant information, and
any written or recorded statement, or the substance of any oral statement of the
defendant. Along with this obligation is the duty to disclose the name and address
of any witness to the statement.
Clearly, the state already has an affirmative obligation to disclose the
identity of any “informant witness.” The concern of the Commission is that the
identification of this person is not clearly and conspicuously set forth in the rule.
Because there have been a significant number of wrongful convictions obtained
through the false testimony of these types of witnesses, the Commission believes
that more detailed disclosure is warranted by amending rule 3.220.
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The workgroup developed an amended rule proposal during the months it
worked on this issue. However, the workgroup was not able to reach a consensus
on the language of the amendment. The inability to find total common ground
occurred because prosecution and defense members of the workgroup could not
agree on every aspect of the rule amendment. In addition to input from workgroup
members, the Florida Prosecuting Attorneys Association (FPAA) was solicited to
assist in the rule drafting process. Ultimately, two proposals were presented to the
full Commission for deliberation and possible acceptance. The two proposals are
set forth below. The workgroup proposal was approved by all of the members of
the workgroup with the exception of Mr. King. Mr. King was instrumental in
having the FPAA present its own suggested rule amendment.
Both the FPAA and workgroup proposals sought to add subdivision (8) to
3.220(b)(1)(A)(i) and add subdivision (M) to 3.220(b)(1).
FPAA Suggestions for Rule 3.220(b)(1)(A)(i)
(8) informant witnesses, whether in custody, who offer testimony
concerning the statements of a defendant concerning the crime for which the
defendant is being tried.
Workgroup Recommendation for Rule 3.220(b)(1)(A)(i)
(8) informant witnesses, whether in custody, who offer testimony against
the defendant.
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At the April 16th meeting, Mr. Coxe asked whether the amendment to the
rule would cover similar fact evidence. Mr. Reyes suggested changing the
wording to read: informant witnesses, whether in custody, who offer testimony
concerning the statements of a defendant relevant to the crime for which the
defendant is being tried. That way if statements are being used for the purpose of
impeachment, they would be covered by the rule. Mr. Coxe suggested the
following: informant witnesses, whether in custody, who offer testimony
concerning the issues for which the defendant is being tried. This change would
not do violence to what Mr. King thought was appropriate language.
At the May 21, 2012 meeting, the Commission, by a vote of 17 to 2, agreed
on the following language to amend 3.220(b)(1)(A)(i), by adding subdivision (8) to
the rule. The amendment reads as follows:
(8) informant witnesses, whether in custody, who offer testimony
concerning the statements of a defendant about the issues for which the defendant
is being tried.
After approving language to amend 3.220(b)(1)(A)(i) at the May 21, 2012
meeting, a question was raised as to whether the amendment to the rule could be
construed by the state to limit other discovery requirements contained in the rule.
Ms. Walbolt moved that the Commission recommend adding a comment to the
subdivision of the rule noting that this only addresses statements of the defendant
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offered by the informant witness, and does not supersede the general rule. Dean
Acosta said that he had reviewed the entire rule and was satisfied that the change to
the rule does not limit the effect of the rest of the rule. Mr. Coxe seconded the
motion to add a comment. Mr. King said he agreed with Dean Acosta. He said he
was familiar with rule 3.220 and the amendment to part of the rule did not limit full
disclosure required by the entire rule. He noted that there are seven subdivisions
that precede subdivision (8). Judge Perry asked how it could hurt to have a
comment. Mr. Coxe said the purpose of the comment is to make clear the intent of
the rule. Dean Acosta said it struck him as odd to have this comment in the rule.
Judge Perry thought a comment would make it clear that the amendment does not
alleviate the obligation of the state to full disclosure under the rule. Judge Perry
said he was concerned that if the informant witness did not offer a statement made
to him or her by the defendant, someone could read the rule to mean that there was
not a need to disclose the name of the informant witness under other sections of the
rule.
The Commission voted 16 to 3 to add a comment to rule 3.220 stating that
subdivision (8) of the rule is not intended to limit in any manner whatsoever the
discovery obligations under the other provisions of the rule.

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FPAA Suggestions for rule 3.220(b)(1)(M)
whether the state has any material or information that has been provided by
an informant witness, including:
(i) the substance of any statement allegedly made by the defendant about
which the informant witness may testify;
(ii) a summary of the criminal history record of the informant witness;
Workgroup Recommendation for rule 3.220(b)(1)(M)
whether the state has any material or information that has been provided by
an informant witness, including:
(i) the substance of any statement allegedly made by the defendant about
which the informant witness may testify;
(ii) a summary of the criminal history record of the informant witness;
The FPAA and the workgroup agreed with the preamble and these two
subdivisions of the rule. The proposals were approved by the Commission by a
unanimous vote.
FPAA Suggestions for rule 3.220(b)(1)(M)(iii-v)
(iii) the time and place under which the defendant’s alleged statement was
made;
(iv) whether the informant witness has received anything in exchange for
his or her testimony;
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(v) the informant witness’ prior history of cooperation, in return for any
benefit, actually known to the prosecuting authority.
Workgroup Recommendation for rule 3.220(b)(1)(M)(iii-vi)
(iii) the time, place, and any other corroborative circumstances under which
the defendant’s alleged statement was made;
(iv) whether the informant witness has received anything in exchange for, or
subsequent to, his or her testimony (including any deal, promise, inducement, pay
leniency, immunity, personal advantage, vindication, or other benefit that the
prosecution or any person acting on behalf of the prosecution has knowingly made
or may make in the future);
(v) the informant witness’ prior history of cooperation, including the case
name, number, and jurisdiction in which the informant witness has previously
testified;
(vi) any other evidence relevant to the informant witness’ credibility.
At the April 16, 2012 meeting, Mr. Fingerhut said the heart of the
Commission discussion should center on subdivision (M). An issue discussed at
length by the workgroup centered on what type of knowledge was needed by the
prosecution that would trigger the discovery response. In other words, the issue is
whether the discovery requirement should be limited to actual knowledge. Ms.
Barzee asked if the workgroup’s discussion on actual knowledge took into account
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the holding in Kyles v. Whitley, 514 U.S. 419 (1995). Mr. Fingerhut said the
workgroup did not specifically address if they were inadvertently narrowing
Supreme Court precedent. Ms. Barzee pointed out that the prosecuting authority
has the affirmative duty to disclose favorable evidence As noted in Kyles, this
means that the individual prosecutor has a duty to learn of any favorable evidence
known to others acting on the government's behalf in the case, including the police.
This goes beyond having knowledge of information in the possession of the law
enforcement officer working on the case. Mr. Fingerhut believed that Kyles would
require knowledge by the prosecutor in the circuit, but not require the prosecutor to
know what was in the possession of other prosecutors in the state. Ms. Barzee
noted that there already is a body of constitutional law requiring the prosecution to
turn over favorable evidence. Ms. Barzee cited Brady v. Maryland, 373 U.S. 83
(1963) and Giglio v. United States, 405 U.S. 150 (1972), as examples of court
opinions requiring disclosure by the prosecution.
Ms. Barzee was concerned that the proposed language by the workgroup
narrowed what is required by the case law. Ms. Barzee suggested that the
Commission look at the language in Kyles. She was concerned that a prosecutor
reading the rule would think that this is the law and not care what Kyles said. If the
language is part of a Florida Supreme Court rule, a trial judge may think it was
based on the holding in Kyles.
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Mr. Coxe commented that Mr. King had mentioned during the workgroup
sessions that there was a logistical inability to gather the information required by
the proposed rule amendment. Assistant state attorneys leave the office and take
the knowledge with them.
Mr. Fingerhut advised the Commission that the FPAA did not concur with
the workgroup recommendation for 3.220(b)(1)(M)(iii). The association felt the
term “corroborative circumstances” was an undefined term of art which is subject
to many varying interpretations and is subject to discovery through depositions and
other discovery tools.
Judge Perry asked why the workgroup wanted subdivision (iii) in the rule.
He said that there are depositions in Florida and the information can be disclosed
in that manner. Ms. Daniels said she was thinking of a case where the defendant
made a statement to a jailhouse companion. The state knew the date and time, the
cell number, and who the witnesses were that were present when the statement was
given. The name of the witness was buried in a list of 300 other witnesses. Her
office was unaware of the importance of the witness until late in the case, and there
was no time to take a deposition. It has occurred to her that if the state knows the
identity of the witness, the state should disclose what is known about the statement
even if only one or two details are known.

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Mr. Smith noted that Florida has widespread rights to discovery. He said the
language regarding any other corroborative evidence reeks of an additional
imposition on the state and the state does not have that obligation. Pursuant to
notice, the deposition will uncover what is needed. There is a difference between
the state doing its job and having to do more than what is required. The state’s
obligation is to disclose the name of the informant and the statement. The rest can
come from discovery.
Ms. Barzee said that if the defense gets the name and place then the burden
is on the defense to depose witnesses and find out who the cellmates are.
Mr. Fingerhut expressed his reasons for being in favor of the paragraph. He
said that if all the obligations under the case law and the rules were working as
intended, we would not have the number of wrongful convictions that have
occurred. More is required of the state, but not so much as to be unreasonable.
Corroborative circumstances do not mean the state has to prove more than it is
required to. It cannot hurt for the state to incorporate more into its disclosure.
Sheriff Cameron commented that when a statement is taken from a witness it
is delivered to the defense. The defense is going to know the circumstances of the
taking of the statement.
Judge Perry said the language in subdivision (iii) of the proposal places an
additional burden on the state. He could understand the need for the language if
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Florida did not have discovery depositions. But defense counsel has an obligation
to do discovery. The rules of discovery were not designed to eliminate
investigation by the defendant.
Mr. Hill felt that the proffered language by the workgroup using the term
“corroborative circumstances” could lead to litigation and varying interpretations.
Mr. Hill thought the language was too broad and put a burden on the state.
Mr. Smith moved to adopt subdivision (iii) as suggested by the FPAA. The
motion was seconded. The motion passed by a vote of 17 to 2, with Mr. Fingerhut
and Ms. Daniels voting no.
Mr. Fingerhut drew the Commission’s attention to 3.220(b)(1)(M)(iv). He
advised that the workgroup and the FPAA agreed on part of the language, but not
on the entire paragraph.
Ms. Daniels thought the language in the workgroup recommendation should
be broader. What should be disclosed is not only what the witness has been given
as an inducement, but what is implied that he or she will get. Even if the majority
of the members do not want to go with everything, there still should be something
included about promises and implied recommendations. Many times there are no
direct promises. If there is a promise of any kind it should be disclosed.
Mr. Coxe said to adopt the FPAA recommendation is to adopt the minimum
standards under the law. He said he did not know what is lost if we say to disclose
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everything that might be a benefit. This sends a message that when dealing with
these people everyone knows what the promises are. This recommendation does
not foster further litigation. It just says tell us now what the promise is.
Ms. Barzee suggested adding the words “or expects to receive” after the
words “informant witness has received.”
Sheriff Cameron expressed concern over the words “personal advantage”
that is set out in the workgroup proposal. He asked what does that mean. He
advised the members not to open the door on this.
Ms. Barzee asked what if an informant is offered an extra two hours of
exercise. This is not unheard of. There are quid pro quos. Sometimes it is a small
advantage that means something to the inmate. Even these small inducements that
are promises should be turned over to the defense.
Judge Perry noted that the proposed workgroup language includes the word
“received anything.” Would that not also include “personal advantage?”
Mr. Smith agreed with Ms. Barzee that the words “expect to receive” need to
be added to the proposal. An expectation may be what prison a witness gets
assigned to. An expectation may be that the Department of Corrections is going to
transfer the witness to another state to serve a sentence. The question to be
decided is whether the jury can trust the statement that the informant witness is
volunteering. The term “anything” is actually very broad. The state has an
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obligation to disclose anything the witness is promised or expects to receive. The
expectation is what affects the statement.
Representative McBurney had a question about the words “expects to
receive.” He asked if the expectation was to be viewed from the perspective of the
witness. Judge Perry commented that most smart prosecutors will tell the
defendant they will consider something after the witness testifies. If there is a
benefit beforehand, they may have to undo the plea. Some folks will testify in the
hope they will receive some sort of leniency.
Judge Perry noted that sometimes the Criminal Procedure Rules Committee
adds comments to a rule. He said the Commission could ask the committee to put
into the comment section the things the Commission is looking for. Adding
examples such as deals, promises, inducements, leniency, etc., would give the trial
court some guidance.
Mr. Coxe said that if we just use the term “anything” we have done nothing
more than discuss Brady. If the rules says “included but not limited to” it makes
the prosecutor think of what needs to be disclosed. This educates the prosecutors.
Judge Silvernail had a concern about situations where the witness would
allege a breach of an expectation in a postconviction relief proceeding. The
witness could raise this when the expectation that he or she had was not fulfilled by
the state. Judge Silvernail said he would worry about what happens when that
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expectation is not realized. Once you put it in the rule you will see it in a
postconviction proceeding. This just adds another line item to Florida’s
postconviction relief rule 3.850.
Mr. Fingerhut asked if adding the “expects to receive” language would take
care of the rest of the paragraph. Ms. Barzee said the remaining text could be
deleted. The paragraph would read: “Whether the informant witness has received,
or expects to receive, anything in exchange for his or her testimony.”
Mr. Smith moved to add “expects to receive” and to strike the term “or
subsequent to.” The motion passed by a unanimous vote.
Judge Perry asked the members if they wished to include the rest of the
language in the proposal as part of the rule or include the language in a comment to
the rule. Ms. Barzee moved to include it. Mr. Reyes said the language should say
“including but not limited to.” The members approved the amendment to the
sentence by a unanimous vote.
Ms. Daniels thought that in the comment section of the rule the committee
could include language stating that what needs to be disclosed is anything the
defendant has a reason to expect he or she will receive.
Representative McBurney asked how does the prosecution know what is in
the informant’s mind and how should that be disclosed. Ms. Barzee said that many
times the witness tells law enforcement exactly what he or she wants in exchange
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for the testimony. Examples could be things like “keep me from being deported,”
or “keep me from being transferred to another facility.” The investigator or
prosecutor knows or has a pretty good idea what the informant wants.
Mr. Fingerhut said there may be things in the mind of a witness that only he
or she has thought of. The rule amendment is not intended to try to cover that. If
an obligation is placed on the state, it has to be something the state is reasonably
charged to know.
Judge Perry noted that any defense attorney is going to want to know how
the statement was conveyed to law enforcement. He or she will depose the law
enforcement officer. He or she will ask if any promises have been made. Judge
Perry thought the Commission had taken a major step in identifying the witness
rather than hiding the person in the back of the pack of listed witnesses by adding
subdivision (8) to rule 3.220.
Mr. Hill said he shared Representative McBurney’s concern. When you put
in “expects to receive” this goes to what is in the mind of the informant. Mr. Hill
thought the best approach was to let the deposition answer what the witness
expected to receive.
Judge Perry commented that what you want to try to ascertain is what is in
the mind of the witness and the prosecutor as to what might be conferred in the
future.
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Mr. Coxe said the whole issue is what is in the informant’s mind. He did not
think that the Commission needed to address the prosecution’s obligation. The
issue is not the cross examination of the prosecutor, it is the cross examination of
the informant witness. Under Giglio the state already has the obligation to disclose
to the defense any agreements with the witness. The Commission should just
focus on the disclosure requirements.
Mr. Smith commented that what actually happens is someone at the jail, or a
lawyer, contacts the prosecution with an offer of information. An example would
be the witness telling the state that his family has to drive seven hours to see him.
The prosecutor will say we will talk about this after the case is over. The witness,
in his mind, has an expectation that his family won’t have to drive that far in the
future, but no promise has been made.
Mr. Hill asked if the informant does not say anything how does the
prosecutor know that the witness is thinking. The way the rule is written is too
great a burden on the state. Ms. Walbot opined that actual knowledge on the part
of the prosecutor is the key.
Sheriff Cameron noted that what a witness receives or expects to receive is
clear cut. You are going to get those things in discovery. However, there can be
wishes or requests from the witness that are not promised by the state. But, the
witness may still have an expectation that the wish or request will be granted. This
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can be ferreted out in a deposition. What we are trying to say is that the state must
disclose what a person receives or expects to receive, as offered by the state.
Dean Acosta said he understood the concerns of Mr. Hill and Representative
McBurney. The proffered language would hold the prosecutor to a standard that
makes him get into the witness’ mind. A prosecutor will rarely make a promise.
In his office, he would not allow a prosecutor to make promises. Both the witness
and the prosecutor have a sense as to what a witness expects to receive. However,
there is a third category. There is the question of what a witness hopes to receive.
An unarticulated hope cannot be disclosed since the prosecutor does not know it.
There is a difference between the unarticulated hope and the expectation.
Mr. Smith made a motion to amend the original motion by Ms. Barzee to
provide that the language in the workgroup proposal that begins “including any
deal, promise, inducement” be attached in the committee notes to the rule and not
in the body of the rule. The motion to amend passed by a vote of 10 to 9.
Mr. Smith then made a motion to include as a comment to the rule the
following language: “includes, but is not limited to, any deal, promise,
inducement, pay, leniency, immunity, personal advantage, vindication, or other
benefit that the prosecution or any person acting on behalf of the prosecution has
knowingly made or may make in the future.” The motion passed by a vote of 17 to
2 (Mr. Fingerhut and the proxy vote for Professor Nunn voting no).
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The actual language of subdivision (iv), as approved by the Commission,
reads:
(iv) whether the informant witness has received, or expects to receive,
anything in exchange for his or her testimony.
The Commission next turned its attention to subdivision (v) of
3.220(b)(1)(M). Mr. Fingerhut advised the FPAA and the workgroup were in
agreement on a portion of the language. The FPAA did not agree that the state had
the duty to include a case name, number, and jurisdiction with regard to the prior
record of cooperation of the informant witness, unless the prosecutor already had
that information. The FPAA opined that the case law is clear that the state is not
required to do the work of the defense in investigating its case. There is no reason
to shift the burden for the impeachment of a witness from the defense to the state.
Judge Perry felt that the FPAA proposal put the burden on the state to
disclose what they actually knew. He asked if the workgroup proposal required the
state to ferret out the information. Mr. Fingerhut thought the workgroup proposal
required the state to divulge the information within the state’s possession or control
only if the state had knowledge of the existence of the information. Judge Perry
expressed his concern that someone may interpret this language as an affirmative
obligation to send out a “facts net” to different offices to find out whether they

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have used the witness as an informant. Mr. Fingerhut replied that this was the
spirit of the workgroup’s language, but not the FPAA language.
Sheriff Cameron noted that the workgroup language does not limit it to
Florida. Mr. Fingerhut said the workgroup expected that the prosecutor would put
forth a good faith effort to gather the information by sending an email to other
prosecutors or make phone calls.
Sheriff Cameron reminded the members that there are two categories of
witnesses. There are jailhouse informants and regular informants. This portion of
the rule should come down to having to disclose what the prosecutor actually
knows regarding the jailhouse informant.
Dean Acosta pointed out that many of the Commission recommendations are
carefully calibrated to address resource concerns. The resources required to
implement an informant database to capture this type of information would be
huge, especially when you already have depositions. A deposition can be used to
gather this information.
Judge Barzee said she agreed with Dean Acosta. She suggested that the
term “known” be inserted after the word “informant’s” and before the word “prior”
in the workgroup proposal. The sentence would read: “The informant witness’
known prior history of cooperation, including the case name, number, and
jurisdiction in which the informant witness has previously testified.” Ms. Barzee
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said that as databases become available, what constitutes a known prior history will
develop. Ms. Barzee did not think the FPAA proposal was what the Commission
was looking for.
Ms. Daniels noted that some of these informant witnesses are regular
customers. With existing resources it is not onerous for a minimal inquiry to be
made within the office of the state attorney. She asked how difficult could it be for
prosecutors to send an email to their own office. She said she was not trying to
make the prosecution go on a hunt. It is not unreasonable to put in some minor
requirement that the office look to see if an informant witness was used.
A question arose as to why the FPAA suggestion contains the term
“prosecuting authority” rather than the word “prosecutor.” Mr. Coxe advised that
the term “prosecuting authority” was used because Mr. King did not have a
problem sending an email within his own office. Mr. Coxe said he did not know
what the cost of an informant database would be. He noted that FDLE had one.
He thought the Commission would be well served to recommend that law
enforcement explore creating a statewide database.
Mr. Michael Ramage, General Counsel for FDLE, told the Commission that
the FDLE database is a case management database solely for the use of FDLE.
The information regarding the testimony of an informant witness would not surface
on a query. The database is an investigative report database and not shared with
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other law enforcement agencies. Mr. Ramage noted that these types of databases
are quite expensive. He said databases have to be managed and be maintained with
personnel and equipment. For all the state law enforcement agencies to have a
database would be expensive. The FDLE database cannot be expanded for law
enforcement use because it was not created for that purpose.
Mr. Fingerhut pointed out that the FPAA suggestion states “actually known
to the prosecuting authority.” This differs from the workgroup recommendation.
Mr. Fingerhut asked if the consensus of the members was on the “informant’s prior
history of cooperation” as shown in the FPAA version.
Dean Acosta believed that if the Commission adopted the workgroup
proposal there would be hundreds of emails a week being sent by prosecutors.
These are large offices that are already overburdened. If there is a failure to
respond there would be a rule violation. This could create an onerous situation that
will tie up offices and stimulate litigation.
Sheriff Cameron noted that there would be a need for two databases. The
confidential informant database is not shared by anyone to protect the informant
and the integrity of the case. There are thousands of street level informants and
law enforcement does not want internal leaks. A jailhouse informant is different.
If there is a way to create a database that is one thing. But the two types of
informants in the proposal are not being clarified.
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Mr. Fingerhut said that the workgroup was sensitive to the issue of
confidential informants. The informant witness that the rule proposal addresses is
an informant in custody.
Ms. Barzee commented that there are reasons to protect a confidential
informant. There are times when law enforcement will not divulge the identity of
the informant. But once the informant is no longer confidential and the person is
listed as a witness we are in a different ball park. The street level informant might
be a resource that law enforcement never wants to reveal, but once you put that
person on the stand, there are rights that the criminal defendant has.
Judge Perry said the Commission was putting disclosure of the informant
witness on the front burner, not the back burner. Florida is one of the most liberal
states with regard to discovery that is given to defendants. The defense can take
that person’s deposition and take advantage of Florida’s public records law. There
are numerous opportunities to narrow the scope of the inquiry and find out
information. To require a database is just not realistic. The question before the
Commission is which of the two versions the Commission should recommend.
Mr. Fingerhut pointed out that the FPAA proposal is limited to the prior
history of the informant witness’ history of cooperation actually known to the
prosecuting authority. Mr. Fingerhut said that Mr. King was willing to accept on
behalf of the FPAA the use of the term “known.” Mr. Coxe asked known to
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whom? Dean Acosta asked whether the information was known to the individual
prosecutor or the entire office.
Mr. William Cervone, the State Attorney for the Eighth Judicial Circuit,
spoke on behalf of the FPAA. He said requiring an entire office to have imputed
knowledge of the information, or to attempt to ascertain if a witness had testified in
the past, would create an impossible situation. He noted that he could have an
assistant resign the day before an email might be sent out. On a daily basis, his
prosecutors are in court or otherwise out of the office.
Mr. Coxe asked what obligation the assistant state attorney had to find the
information. Mr. Cervone said the defense has the obligation to ask questions at a
deposition. Mr. Cervone said he could see where the individual prosecutor had an
obligation to find out. But circulating an email or making phone calls is too broad.
Dean Acosta said the prosecuting authority is the office, thus making any
employee aware of the disclosure requirement. If you say that you are imposing an
affirmative obligation this would extend even if a person has left the office. Mr.
Cervone said this is just not doable.
Judge Perry asked why this information could not be divulged during a
deposition of the witness. Ms. Daniels responded by saying the witness is not
always truthful. Judge Perry replied that the Commission was placing an
affirmative duty to have the prosecutor find out the information.
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Mr. Fingerhut wondered if there was a minimal consensus to use the term
“prosecutor” rather than “prosecuting authority.” He asked if that amendment
would affect other parts of the rule. He said he preferred keeping the language
“prosecuting authority.”
Judge Perry commented that in the future he strongly recommended that a
database be kept regarding informants who testify. But he recognized that getting
agencies to do this is something that might not occur.
Judge Perry reminded the members that the Commission discussion was
now centered on the informant’s prior history of cooperation. This history could
be something that is in the possession of the prosecutor, or the prosecutor’s office,
or even outside the office.
Dean Acosta asked Mr. Fingerhut if he was willing to change the language
in the proposal to substitute the term “prosecutor” for the term “prosecuting
authority.” Mr. Fingerhut felt more comfortable leaving the wording as is.
Dean Acosta moved to amend the words “prosecuting authority” to the word
“prosecutor.” The motion passed by a vote of 10 to 6.
The Commission then voted 16 to 2 to recommend the following language
for subdivision (v) of the rule:
(v) “the informant witness’ prior history of cooperation, in return for any
benefit, actually known to the prosecutor.” This language is identical to the FPAA
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suggestion except the substitution of the word “prosecutor” for the term
“prosecuting authority.”
At the May 21, 2012 meeting, the Commission, by a unanimous vote,
modified the language in subdivision (v) of the rule. The revision reads:
(v) “the informant witness’ prior history of cooperation, in return for any
benefit as known to the prosecutor.”
Mr. Fingerhut directed the Commission’s attention to the following language
contained in subdivision (vi) of the workgroup proposal: “Any other evidence
relevant to the informant witness’ credibility.” This proposal of the workgroup
was rejected by the FPAA. Mr. Fingerhut explained that the workgroup culled this
out of the thirty of more possibilities regarding the issue of an informant witness’
credibility. He said a majority of the workgroup did not think the language would
hurt.
Mr. Coxe asked if this sentence was rejected by the Commission when
approving the language in subdivision (iv) of the proposal which states: “Whether
the informant witness has received, or expects to receive, anything in exchange for
his or her testimony.” Judge Perry thought that Mr. Coxe made a good point.
Ms. Barzee said she understood the purpose of the language, but Brady and
Bagley (U.S. v. Bagley, 473 U.S. 667 (1985)), already require this. The state has to

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provide this about any witness. It might be misinterpreted to mean just informant
witness information, not everyone.
Mr. Fingerhut agreed with Ms. Barzee, but thought the Commission needed
to do more. He noted that Brady has not stopped discovery violations. He asked
how it could hurt to send this message. He noted that much of what the workgroup
had done could be said to be redundant, but the group was trying to highlight
things to reduce wrongful convictions.
Mr. Smith opined that this was an invitation to disaster. It is an impossible
standard. He moved to reject subdivision (vi) contained in the workgroup
proposal. The Commission voted 15 to 3 to delete subdivision (vi). Mr. Fingerhut,
Professor Nunn (proxy vote by Mr. Fingerhut) and Ms. Daniels voted in favor of
the workgroup proposal.
The final version of the recommended amendments to rule 3.220 is set forth
below and at Appendix G of this report.
3.220(b)(1)(A)(i)
(8) informant witnesses, whether in custody, who offer testimony concerning the
statements of a defendant about the issues for which the defendant is being tried.
3.220(b)(1)(M):
whether the state has any material or information that has been provided by
an informant witness, including:
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(i) the substance of any statement allegedly made by the defendant
about which the informant witness may testify;
(ii) a summary of the criminal history record of the informant
witness;
(iii) the time and place under which the defendant’s alleged statement
was made;
(iv) whether the informant witness has received, or expects to
receive, anything in exchange for his or her testimony;
(v) the informant witness’ prior history of cooperation, in return for
any benefit, as known to the prosecutor.
Committee Notes
2012 Amendment.
3.220(b)(1)(A)(i)(8) is not intended to limit in any manner whatsoever the
discovery obligations under the other provisions of the rule.
3.220(b)(1)(M)(iv) The committee recognizes the impossibility of listing in
the body of the rule every possible permutation expressing a benefit by the state to
the informant witness. Although the term “anything” is not defined in the rule, the
following are examples of benefits that may be considered by the trial court in
determining whether the state has complied with its discovery obligations. The
term “anything” includes, but is not limited to, any deal, promise, inducement, pay,
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leniency, immunity, personal advantage, vindication, or other benefit that the
prosecution, or any person acting on behalf of the prosecution, has knowingly
made or may make in the future.
The Commission discussed whether the proposed rule amendment should be
sent to the Court via a petition to amend the rule, or as a recommendation that the
Court direct The Florida Bar Criminal Procedure Rules Committee to study the
Commission proposal and determine if a rule amendment was in order. The
Commission recognizes that any amendment to rule 3.220 has far reaching
implications, both for current and future cases and cases that are not final but are
on appeal.
The Commission is of the opinion that the Bar committee, comprised of
judges, prosecutors, and defense attorneys who are experts in criminal law, is best
suited to determine if the Commission proposal is workable, and has merit. In
addition, the Commission members expressed a concern that there is no
mechanism in place for any staff at the Office of the State Courts Administrator to
follow-up on a rule petition filed by the Commission. The Commission will be
disbanded on July 1, 2012. There will be no staff institutional knowledge available
to file any response to comments filed in the event a case is created by the filing of
a petition.

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(e)

Improper/Invalid Scientific Evidence
The impetus behind many states forming innocence commissions was that

exonerees were proven to be innocent using the latest scientific technology: DNA
testing. Starting in the late 1980s, for the first time in history, conclusive test
results showed that despite other evidence and a trial by jury, people were
convicted and imprisoned for crimes that they did not commit. The advent of
DNA testing also showed the law enforcement, legal, and scientific communities
that other types of scientific evidence were not as accurate or reliable as previously
thought.
Examples of improper scientific evidence include: Bite mark analysis, dog
sniffing, and comparative bullet lead analysis. In some past wrongful conviction
cases, experts testified that a bite mark on a victim’s body could be individualized
to a particular defendant, or that a dog could sniff a defendant’s scent at a crime
scene long after the fact. Some scientific disciplines, such as serology and
hair/fiber analysis, are generally accepted as valid. Yet, there is still the potential
for improper analyst testimony. Many exonerees’ cases had scientifically valid
testing done by crime analysts, but the analysts testified to false, incomplete, or
misleading conclusions in court.
Access to DNA testing, both before and after trial, maintaining quality
forensic laboratories and evidence preservation are the key issues for scientific
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evidence. In addition to looking at the science, the Commission looked at funding
concerns, which will only likely increase as DNA testing becomes more common
and the techniques become more sophisticated.
The subject of improper or invalid scientific evidence was first discussed at
the February 13, 2012 Commission meeting. At the meeting, the members were
educated on what recommendations have been made regarding this topic by the
following entities:
(1)

California Commission on the Fair Administration of Justice

(2)

Illinois Governor’s Commission on Capital Punishment

(3)

Massachusetts Boston Bar Association Task Force

(4)

New York State Justice Task Force

(5)

New York State Bar Association Task Force

(6)

Pennsylvania Advisory Committee on Wrongful Convictions

(7)

Texas Timothy Cole Panel on Wrongful Convictions

(8)

Innocence Commission of Virginia

(9)

Wisconsin Avery Task Force

(10) American Bar Association Recommendations
(11) The Justice Project
A description of the recommendations of each of these bodies is set forth in a
PowerPoint presentation located in this report at Appendix D.
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Several states require forensic laboratory accreditation. Mandatory
accreditation is not required in Florida. The Florida Department of Law
Enforcement (FDLE) requires that its laboratories be accredited by the non-profit
American Society of Crime Laboratory Directors /Laboratory Accreditation Board
(ASCLD/LAB). The ASCLD/LAB forensic lab accreditation process is rigorous,
with on-site annual inspections. In addition, Florida has five regional forensic
laboratories that have their own policies that are not overseen by FDLE. These
laboratories are also accredited by ASCLD/LAB.
Ms. Daniels explained that busy, stressed public defenders do not have the
knowledge, time, and resources to handle all of the forensic science issues. Public
defenders have a fund for experts, but it is very limited. Due process funds for
public defenders are falling short. Ms. Daniels has read through all of the
Innocence Project cases and of the 228 exonerations, 116 were due to improper
scientific evidence involved in the trial. Therefore, more than 50% of wrongful
convictions are due in part to bad scientific evidence. She noted that if a public
defender receives forensic evidence in discovery, he or she can’t ask FDLE to test
it without a judge’s order. Ms. Daniels explained that each public defender office
has access to a due process fund which covers court reporting, DNA testing, and
expert witnesses. Half of her funding goes to court reporting, so little is left for
experts.
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Mr. King commented that his office has a different perspective. His budget
covers the overage for the public defender at the end of the year. To say that they
do not hire experts, in his opinion, is not correct. He closely regulates due process
money. He currently has a case where private conflict counsel has engaged seven
out-of-state experts and has kept secret the ones who gave information that he
doesn’t like. They not only hire experts, they typically hire the most expensive
experts. There are at least four different labs in Florida that do independent work;
there is no need to go outside of Florida. Mr. King suggested the Commission look
at regulating fees and people who are hired.
Ms. Daniels expressed support for preserving evidence, no matter what the
Commission recommends on the other issues.
Ms. Snurkowski said she would support a “best practices” recommendation
by the Commission for forensic evidence.
Judge Perry thought the major issues were: (1) the preservation of evidence
(2) better education for lawyers and (3) continuing education on how to handle
scientific evidence.
Sheriff Cameron said that he did not think the Commission should end
without recommending more money for funding. If the Commission does not
recommend more funding, it has not fulfilled part of its mission.

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A complete discussion of this topic is contained in the Commission minutes
of the meeting, located at Appendix D.
The Commission met on March 12, 2012, and continued its review of this
topic area. Since several states require mandatory accreditation of its crime
laboratories, the members desired to hear from an expert from FDLE regarding
how accreditation works in Florida. Ms. Amanda Julian, the Forensic Services
Quality Manager for the department, addressed the Commission.
Ms. Julian explained to the members that there is a difference between
accreditation and certification. Laboratories are accredited and examiners are
certified. Neither accreditation nor certification is mandatory in Florida.
The FDLE crime laboratories are located in Tallahassee, Pensacola, Tampa,
Jacksonville, Orlando, Fort Myers, and Daytona Beach. There are no FDLE
laboratories in the southeast portion of the state. If a service is needed and a local
laboratory cannot provide assistance, Fort Myers or Tampa laboratories can
provide the service. Local laboratories, which are also accredited, exist in Broward
County, Indian River County, Miami-Dade County, Palm Beach County, and
Pinellas County. In addition, there are accredited government forensic laboratories
in Seminole County, Manatee County, the State Fire Marshal, and the Drug
Enforcement Agency in Miami.

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FDLE crime laboratories offer forensic disciplines in the following areas:
Biology (DNA), chemistry, crime scene processing, digital evidence, DNA
database, firearms and toolmarks, impression evidence, latent print processing and
comparison, questioned documents, toxicology and trace evidence.
The American Society of Crime Laboratory Directors/Laboratory
Accreditation Board (ASCLD/LAB) and the Forensic Quality Services, Inc. (FQS)
are the two main accrediting bodies in the United States. ASCLD/LAB first began
accrediting laboratories in 1982. ISO 17025 is an international set of standards for
testing laboratories. Over 400 standards are required to be met. The program
requires full scope on-site visits by assessors every five years, annual reduced
scope on-site visits, and an annual report to be filed by the laboratory. Corrective
action requests are issued by ASCLD/LAB when compliance with a standard does
not occur. Laboratories must come into compliance or face sanctions. FDLE was
first accredited in 1990 before any federal requirements existed.
Laboratories pursue accreditation for the following reasons:
(1) Accreditation provides a minimum standard for how to operate a forensic
laboratory (2) accreditation instills confidence in law enforcement and the court
system (3) federal grant monies are available and (4) accreditation permits
participation in the Combined DNA Identification System (CODIS). Reasons that
some laboratories are not accredited include financial considerations, not being
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receptive to oversight, and the time and effort it takes to maintain the accreditation.
Accreditation requires maintaining a multi-part quality system. As part of
the quality system, FDLE has the following in place: (1) personnel qualifications
(2) training (3) competency testing (4) policies and procedures (5) validation and
performance checks (6) proficiency testing (7) case file review (8) testimony
review (9) technical leaders (10) internal and external audits (11) corrective and
preventive action (12) safety program and (13) proper facilities and equipment.
There are certain qualifications needed to become a laboratory analyst.
Science based degrees are becoming the norm in all disciplines. Specific classes
are required for DNA analysts that are tied to federal standards, such as (1)
genetics (2) molecular biology (3) biochemistry and (4) statistics.
ASCLD/LAB requires FDLE to have a documented training program.
Crime laboratories in Florida tend to train specialists, not generalists. Components
must include general knowledge of forensic science, ethical practices in forensic
science, and applicable criminal/civil law and procedures. There are readings,
practical exercises, and oral/written tests. The average length of an analyst training
program is eleven months.
Competency testing is required before an analyst can handle casework
independently. Practical tests (oral board and mock trial) are given so the analyst

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can demonstrate the understanding of the scientific principles being applied.
Practical exercises demonstrate the ability to perform tests.
FDLE developed forensic manuals long before accreditation required them.
The manuals give the framework for what needs to be done and how to do it.
Manuals ensure consistent application of scientific processes and interpretation of
results. They give guidance on handling unusual circumstances.
FDLE requires proficiency testing for each analyst. Annual testing is
required of each member. There are three types of tests (1) external – which test
the laboratory’s quality system (2) internal – which tests the individual’s skills and
(3) blind testing – which test both the quality system and individual skills.
ASCLD/LAB requires administrative review on all cases and technical
review on a sampling of cases. FDLE conducts a 100% technical and
administrative case file review. In 2011, FDLE released 74,650 laboratory
submissions.
ASCLD/LAB requires that testimony of analysts be reviewed at least once a
year. This review is typically handled by a prosecutor or laboratory supervisor.
Technical leaders are also part of the accreditation process. These leaders
provide technical expertise and guidance for forensic disciplines. They are
required for accredited laboratories that do not have supervisors technically
competent in areas they manage. Technical leaders are required for accredited
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DNA laboratories. The leader must have an advanced degree. A DNA technical
leader has the authority to suspend casework in a laboratory for technical issues.
The accrediting bodies (ASCLD/LAB and FQS) and federal standards all
require internal and external audits. At a minimum, FDLE must perform an annual
internal audit. External audits are required once every two years for DNA.
Corrective and preventive action plays a crucial role in accreditation.
Having a system in place to review and correct issues is crucial. Within FDLE, the
quality manager, laboratory chief, section supervisor and technical leader are all
involved. Documentation is reviewed specific to the incident and from the time
frame the incident occurred. Corrective actions are tailored to address specific
issues and may include, but not be limited to (1) amended reports (2) notifications
(3) retesting (4) retraining and (5) procedural changes.
Having in place a safety program is an accreditation requirement. There are
laboratory safety concerns with regard to (1) chemical hazards (2) biological
hazards (3) firearms and (4) compressed gases.
Ms. Daniels asked if there were states that require mandatory accreditation.
Ms. Julian responded by advising that five states have mandatory accreditation. Of
those states, three also require certification. A couple of states made it mandatory
from commission recommendations. She noted that there is usually a driving force

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behind mandatory accreditation such as a criminal case. New York and Texas
accreditations were driven from commission action.
Following the presentation by Ms. Julian, the Commission members
engaged in a lengthy question and answer session. The dialogue between Ms.
Julian and the Commission is set forth in the Commission minutes located at
Appendix E of this report.
Based on the materials reviewed by the Commission, and the presentation of
Ms. Julian, the Commission is satisfied that there is no need to recommend a
mandatory accreditation requirement for Florida laboratories.
At the March 12, 2012 meeting, the Commission was educated regarding the
statutory requirements for DNA testing in Florida. Assistant FDLE Commissioner
Jim Madden presented information to the Commission.
Mr. Madden advised the Commission that DNA testing is very expensive
and fiscally impactful. He provided the Commission members with a handout
addressing DNA database expansion, laboratory equipment, laboratory analysts for
CODIS administration, and DNA case work capacity.
Mr. Madden noted that through the next fiscal year budget, FDLE has a
$500,000 grant to buy kits for DNA database expansion. Because of FDLE’s
accreditation, it gets federal grants and the use of rapid identification devices that
can look at fingerprints to determine whether that person’s profile is in a DNA
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database. This is much easier than taking swabs from everybody and it does not
cost the State of Florida anything.
Mr. Madden said that DNA has had the biggest impact on crime reduction in
Florida. In order to keep up with submissions, there are case acceptance policies.
FDLE has reduced the number of incoming chemistry cases and put them into
biology/DNA. FDLE needs ten more analysts just to remain where it is now. He
said that FDLE was proud of its training programs and what it does as an agency,
specifically in biology. He commented that in the end of a three-year period, the
analysts are free agents. The military will recruit them without having to train
them, thus saving an enormous amount of money. The loss of analysts by FDLE
means that the agency has to put people through another year of training. FDLE
continues to strive to implement retention programs. It is an important tool for the
agency to be able to pay the biologists a competitive salary.
Mr. Madden covered the following areas with the Commission members.
DNA Database Expansion
In 2010, the Florida Legislature expanded DNA collection to include arrestbased collection and established a 10-year implementation period.
On July 1, 2011 FDLE began accepting submissions of DNA samples
collected from persons arrested for felony crimes set forth in Chapters 782

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(murder), 784 (assault and battery), 794 (sexual battery), and 800 (lewd or
lascivious acts).
Florida’s Legislature provided funding for additional DNA kits needed to
process the increased volume of submissions resulting from expanded collections;
however funding was not provided for purchase and deployment of equipment
needed to automate the collection process. This equipment is critical to FDLE’s
ability to process more sample volume without increasing database staff or creating
a backlog of DNA samples waiting to be analyzed and entered into the DNA
database.
Initial efforts by FDLE to address the added workload resulted in identifying
grant funding to purchase Rapid Identification (RID) devices to begin automated
DNA collection. The technology will reduce collection documentation errors and
prevent duplicate DNA sample collections. FDLE is in the final stages of
deploying approximately 200 RID devices, giving all counties RID capability by
June 2012.
Assessments and follow-ups are being conducted, and FDLE anticipates that
an additional 50 RID devices should be purchased at a cost of $3,969 per device
for a total of $198,450.
The second phase of arrest-based DNA collection begins January 1, 2013,
for Chapters 810 (burglary) and 812 (theft and robbery). FDLE anticipates this
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expansion phase will again increase the volume of submissions to the DNA
Database by an estimated 21,184 additional samples in 2013, requiring an
additional $593,152 for DNA kits used for collection and other laboratory supplies
that are consumed in the analysis process. ($28 x 21,184 = $593,152).
Laboratory Equipment
FDLE labs currently use the AB 3130 Genetic Analyzer instruments with
GeneMapper software for DNA analysis. The AB 3130 instruments and software
are reaching their end-of-life cycle and will not be produced or supported within
the next three years. FDLE must replace these instruments with the more current
model AB 3500. Replacing the current 13 instruments will cost $160,000 per
instrument for a total of $2,080,000. In addition FDLE will need 130 licenses for
the GeneMapper software at $8,000 per license for a total of $1,040,000. Total
funding for the Genetic Analyzer replacement and accompanying software licenses
requires $3,120,000.
Crime Laboratory Analysts For CODIS Administration
The increased volume of submissions to the DNA Database will generate an
increase in the number of DNA profiles submitted to the Combined DNA Index
System (CODIS), and generate a corresponding increase in the number of CODIS
matches. The increase in the number of CODIS matches will increase the

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workload for regional crime laboratory analysts assigned as CODIS
Administrators.
Currently, CODIS Administrator duties are assigned to regional case
working crime laboratory analysts, which reduces time available for case work.
Increasing the CODIS workload will further divert existing crime laboratory
analysts to full-time CODIS Administrator duties, and negatively impact FDLE’s
biology case work backlog and turnaround time, thereby delaying the upload of
new DNA profiles to the national database.
To accommodate the increased workload associated with increased CODIS
hits, FDLE has proposed adding a new crime laboratory analyst position to serve
as regional CODIS Administrator in each region. This initiative will cost an
estimated $470,547 for six new crime laboratory analysts dedicated to handling the
additional CODIS workload generated by arrest-based collections and help to
avoid diverting additional case working analysts to CODIS administration.
DNA Case Work Capacity
Demand for DNA services continues to increase. Improvements in
instrumentation have made it possible to analyze evidence when even a small
amount of genetic material is available. Also improved methodologies such as
YSTR and Mini-filer technology make it possible to analyze evidence that
previously would not have provided usable profiles. Awareness of DNA
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capabilities has also contributed to demand, which resulted in more than 20,600
requests for DNA services in 2011.
FDLE prides itself on the success of its biology training program; this
success creates an extraordinary benefit for FDLE but also an opportunity for other
entities to recruit trained biologists without expending training dollars or time.
FDLE strives to retain its members, but without financial incentives, this at times
proves difficult. FDLE continues to explore the reinstatement of a retention
program to reward those trained analysts and remain competitive in the biology
laboratory environment.
FDLE has 85 biologists working in six crime laboratories throughout the
state. These analysts can handle about 18,400 service requests each year. To keep
pace with current demand for service, FDLE needs to add 10 biology case working
analysts to current staff, in order to avoid increasing backlogs and lengthening
turnaround times for law enforcement contributors. Total funding for 10 new
crime lab analyst positions requires $784,245.
The interplay between Mr. Madden and the Commission members is set
forth in the March 12, 2012 minutes located at Appendix E.
Based upon the presentation of Assistant Commissioner Madden, the
Commission makes the following recommendations to the Florida Legislature:

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(1) Funding to purchase 50 rapid identification devices at a cost of $3,969
per device for a total of $198,450.
(2) Funding to purchase 21,184 DNA kits used for collection and other
laboratory supplies that are consumed in the analysis process, in the amount of
$593,152.
(3) Funding to purchase 13 AB 3500 Genetic Analyzers at a cost of
$160,000 per instrument for a total of $2,080,000. In addition, funding is needed
to purchase 130 licenses for the GeneMapper software at $8,000 per license for a
total of $1,040,000. Total funding for the Genetic Analyzer replacement and
accompanying software licenses requires $3,120,000.
(4) Funding of $470,547 for six new crime laboratory analysts dedicated to
handling the additional CODIS workload generated by arrest-based collections to
help avoid diverting additional case working analysts to CODIS administration.
(5) Funding of $784,245 for 10 new crime laboratory analyst positions to
keep pace with current demands for service.
At the conclusion of the presentation by Ms. Julian, the Commission turned
its attention to crime scene investigations. Mr. Tim Whitfield, the Director of
Scientific Investigations Section for the Hernando County Sheriff’s Office
appeared before the Commission.

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Mr. Whitfield advised the Commission that he has been involved with law
enforcement for 37 years, and 35 of them have been in crime scene analysis. He
commented that in Florida, not all agencies go about crime scene investigations in
the same way.
Mr. Whitfield noted that law enforcement agencies in Florida have different
requirements for crime scene investigators. Some require just a high school
diploma and a drug screen. Some agencies do not have crime scene specific units
at all. Some may request the services of FDLE for major cases. Most agencies
recognize the need to have experts. Some do in-house training. Pinellas County
has approximately forty-five crime scene investigators. They require a crime scene
degree and an applicant has to pass a mock crime scene examination.
Training and certification of crime scene investigators is provided through
formal education at St. Petersburg Junior College, St. Leo University, Keiser
University, Kaplan University, Palm Beach State College, the University of South
Florida, Florida International University, the University of Florida, and Stevenson
University. There also is an Institute of Police Technology and Management
through the University of North Florida.
Mr. Whitfield told the members that there are in-house field training
programs provided by local law enforcement agencies. Most agencies require
practical exams and annual testing. But not all law enforcement agencies do this.
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Mr. Whitfield noted that private institutions offer crime scene certifications.
But he was not sure what the term “certification” actually means. Does it mean a
person is qualified to do crime scene investigations, or is the person an expert in
doing crime scene investigations? He commented that some certifications require
no examinations.
Mr. Whitfield told the Commission that the International Association of
Identification (IAI) offers three levels of certification as (1) a crime scene
investigator (2) a crime scene analyst, or (3) a senior crime scene analyst. The
problem with establishing three levels is that the defense can argue that the lowest
level is not as good as the two upper levels. This creates a problem in testifying.
Other types of certifications that are available through the IAI are blood
splatter, forensic art, latent print examiner, forensic photography and crime scene
reconstruction.
Mr. Whitfield briefed the Commission members on the collection, storage
and preservation of crime scene evidence. All the colleges and universities
mentioned by Mr. Whitfield have courses for this subject area. He educated the
members on certain principles such as the Associative Triangle (linking the victim
to the subject to the crime scene) and the Locard Exchange Principle (whenever
you enter an environment, you add to it and detract from it). Collection, storage
and preservation of evidence include the sequential processing method (visual
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examination, light energy scan, photography and video), and evidence collection
using sterile instruments (scalpels, razors, water, swabs). The FDLE submission
manual is referenced when packaging and submitting crime scene evidence to
laboratories for testing. Examples of items submitted are biological (organic),
weapons, casings, projectiles, and latent print evidence. After crime scene
evidence is collected, an agency has to make a determination regarding the
selection of a crime laboratory (state, federal, or private). This selection process is
driven by the type of evidence that is secured at the crime scene.
Mr. Whitfield advised the Commission members that certain databases are
available to assist agencies. Examples are (1) Automated Fingerprint Identification
System (2) Combined DNA Index System (3) National Integrated Ballistics
Information Network and (4) National Missing and Unidentified Persons System.
The last component of collection and preservation of crime scene evidence is
the courtroom testimony of the expert witness. Mr. Whitfield noted that several
colleges and universities offering training and certification of crime scene
investigators include courses on courtroom testimony.
Mr. Whitfield advocated statewide standards for crime scene technicians.
He recommended that all crime scene investigators be required to take a
proficiency examination. In addition, he would like to see a formal academy
established similar to what is offered by the Criminal Justice Standards and
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Training Commission. Right now, crime scene investigators may be certified or
they may not be. He has visited law enforcement agencies where no person in the
department is certified in any discipline.
Mr. Whitfield noted that some departments don’t require formal training or
education, but they do give entrance exams. He commented that at the Hernando
County Sheriff’s Office they hire investigators with a two year degree, but prefer a
four year degree along with an examination.
At the conclusion of Mr. Whitfield’s presentation, the Commission
discussed possible recommendations. Judge Perry thought there needed to be
uniform certification for crime scene technicians. Ms. Daniels voiced her support
for this suggestion. She commented that you can have certification programs and
degrees, but unless you’ve been tested, a critical part is missing. Professor Nunn
noted that the issue is not so much training, but rather testing and continuing
professional education.
There was consensus among the Commissioners to recommend a
certification program for crime scene technicians so that they must pass a test. The
testing would be conducted by the Criminal Justice Standards and Training
Commission. Judge Perry restated the recommendation as: “The Commission
recommends that the Criminal Justice Standards and Training Commission
establish a program for crime scene technicians to be certified by written
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examination, and further continuing testing be performed, in order to retain a
certification.” Commissioner Bailey reminded the Commission that this will have
a fiscal impact on the training centers whose funds are about to be cut again. There
is a cost associated with validating the test being administered. He suggested that
the Commission recommend that funds be appropriated by the Legislature.
The Commission next considered another possible recommendation that
FDLE crime laboratories be made more readily available to the public defenders
for forensic examinations. Ms. Daniels stated that she had consulted with FDLE
and this could increase FDLE’s workload.
Professor Nunn was concerned about a constitutional issue. When a
defendant utilizes the services of a private laboratory, the results of any
examination are not disclosed to the state. There is no obligation on the part of the
defense to turn over to the prosecution evidence that is incriminating. However, if
the defense uses the services of an FDLE crime laboratory, state law requires that
the results of the examination be furnished to the state. If a defendant is in the
position of being forced to disclose information that would be incriminatory, then
the issue is whether or not to take that risk. A person will waive the right against
self incrimination to see if there is a valid claim. Professor Nunn thought a better
way is to simply say that defense attorneys, both public and private, should be

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entitled to expert assistance when reasonably necessary, and funding should be
provided for it.
Professor Nunn was also concerned that not enough judges are granting
access to laboratory testing. Judge Perry commented that in Orlando, if the
defense files a motion that is more than a fishing expedition, the court funds it if
the defendant is indigent. Availability is there if a legal basis can be stated. The
cost of the examination comes out of due process funds.
Based on Commission discussion at the March 12, 2012, April 16, 2012, and
May 21, 2012 meetings, the Commission voted unanimously to recommend that
the Florida Legislature provide more funding to public defenders, criminal conflict
and civil regional counsel, and conflict counsel to use FDLE crime laboratories, or
increase funding for public defenders for private testing.
At the March 12, 2012 Commission meeting, the members acknowledged
that forensic science is becoming more common in criminal investigations and in
the courtroom. Prosecutors and defense attorneys are confronted with challenges
over the introduction of scientific and extremely technical evidence. The trial
courts must evaluate the relevance, reliability and admissibility of the evidence
being proffered. The Commission noted that a bill filed during the 2012 legislative
session would have changed the standard of admissibility of expert witness
testimony in Florida from the Frye test to the Daubert standard. See Daubert v.
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Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993). In Daubert, the United States
Supreme Court held that the Federal Rules of Evidence superseded Frye as the
standard for admissibility of expert evidence in federal courts. The bill to change
the standard in Florida failed in the Legislature.
Judge Perry cited the Marsh v. Valyou opinion (977 So. 2d 543 (Fla. 2007)).
Judge Perry noted that Florida adheres to the Frye test but only where the expert
opinion is based on new or novel scientific techniques. Judge Perry noted that
most expert opinion testimony is not subject to Frye, such as an opinion based only
on the expert’s experience and training. Judge Silvernail opined that if Florida had
strictly applied the Frye standard, the courts might not have accepted
mitochondrial DNA. He advised the Commission to be very careful when
considering changing the standard for admissibility. Mr. Smith concurred. He said
the beauty of Frye is that it does have some flexibility and allows for other tests. It
is not perfect, but it is better than some of the alternatives. Mr. Smith noted that
there will always be alchemy and quackery when it comes to “scientific” evidence.
He suggested that the Commission had done the best that it can, and we have to
trust the system.
The Commission elected to not make any recommendation with regard to
changing the standard of admissibility in Florida.

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Judge Perry asked if there were any other suggestions regarding scientific
evidence. Ms. Daniels thought there should be a presumption of some kind that if
there is evidence that has not gone through an accredited crime laboratory it should
be not be admissible. The Commission took no action on this recommendation.
At the April 16, 2012 Commission meeting in Orlando, the Commission
again discussed the topic of scientific evidence. A complete discussion of the
subject is contained in the minutes of the April 16, 2012 meeting. The minutes are
attached at Appendix F.
Judge Perry pointed out that the members also discussed other possible
recommendations at the March meeting, but did not vote on the proposals. These
proposals are:
(1) Education for judges on the admissibility of expert testimony regarding
scientific evidence.
(2) State Attorneys should notify FDLE if a case is dismissed or ends in a
plea agreement so evidence is not unnecessarily tested at their laboratories.
Judge Perry said there was no disagreement that judges should be educated.
Judge Silvernail noted that scientific evidence was not part of the curricula for the
new judges. It is part of the annual education conference for circuit judges. Judge
Perry moved that the Commission recommend that the New Judges College
provide education on the admissibility of expert testimony. The language of the
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proposal reads: “The Florida Judicial College program annually provide education
at the New Judges College on the admissibility of expert testimony.” The motion
passed by a unanimous vote of the Commission.
The Commission was unanimous in recommending that the FDLE crime
laboratories be notified by the state attorney when a criminal case is closed. The
recommendation reads: “State Attorneys should notify FDLE if a case is
dismissed or ends in a plea agreement so evidence is not unnecessarily tested at the
laboratories.”
(f)

Evidence Preservation
The issue of preserving evidence collected by law enforcement during the

investigation of a crime was discussed by the Commission at the April 16, 2012
meeting. The focus of the discussion centered on the preservation of any evidence
that may be suitable for DNA testing that could lead to exonerations of innocent
persons. See pages 23-29 of the Commission minutes attached at Appendix F for
the full discussion on this topic.
Governmental entities and law enforcement agencies are accumulating more
physical evidence and storing it for longer periods of time. This is causing fiscal
issues due to storage costs and the hiring of additional personnel to inventory and
manage the ever-growing inventory. Because of the advancements in the science

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of DNA, the Commission recognizes that potentially any physical evidence that is
collected now, or in the future, may be suitable to DNA testing.
To address physical evidence accumulation, the 2010 Florida Legislature
considered Senate Bill 2522. The bill redefined current statutory requirements for
governmental entities’ preservation of evidence that may contain DNA. The bill
contained the following language:
Governmental entities shall preserve physical evidence
potentially containing biological evidence on which a post-sentencing
testing of DNA may be requested if that evidence is secured in
relation to an investigation or prosecution of:
a serious crime for the period of time that the serious
crime remains unsolved; or
a serious crime for the period of time that an individual
is incarcerated based on a conviction for that serious crime
and is in the custody of an evidence-holding agency in this
state on July 1, 2010.
In a case in which the death penalty is imposed,
the evidence shall be maintained for 60 days after execution
of the sentence. In all other cases, a governmental entity
may dispose of the physical evidence if;
the term of the sentence imposed in the case has
expired and no other provision of law or rule requires that
the physical evidence be preserved or retained; or
the physical evidence is of such a size, bulk, or physical
character as to render retention impracticable. When
such retention is impracticable, the governmental entity shall
remove and preserve portions of the material evidence
likely to contain biological evidence related to the serious
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crime in a quantity sufficient to permit future DNA testing
before returning or disposing of the physical evidence.
Upon written request by the defendant in a case of a
serious crime, a governmental entity shall prepare an
inventory of biological evidence that has been preserved
in connection with that case.
Senate Bill 2522 was not enacted by the Florida Legislature. The Senate
Interim Report discussing the bill points out that the original bill filed in the
Legislature was a collaborative effort between the Florida Police Chiefs
Association and the Innocence Project of Florida. However, amendments to the
bill resulted in the Innocence Project of Florida and the Florida Public Defender
Association not supporting the final version.
Defendants who have been convicted or who have entered a plea of guilty or
nolo contendere after 2006 may petition for post-sentencing DNA testing under the
Florida statutes and the Florida Rules of Criminal Procedure.
Sections 925.11 and 925.12 Florida Statutes (2011), address DNA testing in
Florida. Subsection (4) of section 925.11 covers the preservation of evidence. In
2006, the Florida Legislature eliminated the time limitations in which a person can
file a petition seeking postconviction DNA testing. It now appears that the
government must preserve evidence until the end of a defendant’s sentence,
because a defendant could potentially petition for the testing at any time. It is also
important to note that in 2006, the Legislature allowed people who entered a plea
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of guilty or nolo contendere to felony charges to also seek postconviction testing.
Together, these amendments have led to more physical evidence being retained for
the possibility of DNA testing. Subsection (4) of section 925.11 states:
(a) Governmental entities that may be in possession
of any physical evidence in the case, including, but not limited
to, any investigating law enforcement agency, the clerk of the
court, the prosecuting authority, or the Department of Law
Enforcement shall maintain any physical evidence collected
at the time of the crime for which a post-sentencing testing
of DNA may be requested.
(b) In a case in which the death penalty is imposed,
the evidence shall be maintained for 60 days after execution
of the sentence. In all other cases, a governmental entity may
dispose of the physical evidence if the term of the sentence
imposed in the case has expired and no other provision of law
or rule requires that the physical evidence be preserved or retained.
In October 2010, The Florida Senate’s Committee on Criminal Justice issued
Interim Report 2011-112. As part of the report, Senate staff recommended
amendments to s. 925.12, Florida Statutes. The Senate Interim Report is included
in this report at Appendix P.
Section 925.12 was enacted in 2006, and sets forth the requirements for a
defendant to request DNA testing when he or she has entered a plea of guilty or
nolo contendere in a felony case. Subsection (3) of section 925.12 expresses the
legislative intent that the Florida Supreme Court enact a rule of criminal procedure

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requiring an inquiry by the trial court regarding DNA testing before accepting a
plea in a criminal case.
Subdivision (d) of Florida Rule of Criminal Procedure 3.172 was adopted by
the Florida Supreme Court in response to the legislative intent set forth in section
925.12, Florida Statutes. Subdivision (d) of the rule states:
“Before accepting a defendant’s plea of guilty or
nolo contendere to a felony, the judge must inquire whether
counsel for the defense has reviewed the discovery disclosed
by the state, whether such discovery included a listing or
description of physical items of evidence, and whether
counsel has reviewed the nature of the evidence with
the defendant. The judge must then inquire of the defendant
and counsel for the defendant and the state whether physical
evidence containing DNA is known to exist that could
exonerate the defendant. If no such physical evidence is
known to exist, the court may accept the defendant’s plea
and impose sentence. If such physical evidence is known
to exist, upon defendant’s motion specifying the physical
evidence to be tested, the court may postpone the proceeding
and order DNA testing.”
Inquiries by the trial courts vary from circuit to circuit. In the Ninth Judicial
Circuit, a standardized form is signed by the state and defense covering the
requirements of the rule. In addition, judges make a specific inquiry at the time a
plea is entered. Some circuits rely on the form but the trial judges do not engage in
an in-court inquiry.
The Commission discussed the possibility of recommending to the Florida
Legislature that a central depository be created to store potential DNA evidence
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taken from a crime scene. As an alternative, a central depository could be created
to handle only evidence that is stored, or could be stored, in postconviction relief
proceedings. Law enforcement agencies statewide could submit the evidence to
the depository. This method of storage would result in significant cost savings to
local agencies.
However, the members recognized that there would be a significant cost
factor involved in such an undertaking. Considering that DNA science is ever
evolving, it would be extremely difficult, if not impossible, to draft proposed
legislation at this point in time. There also was a concern among the members that
attempting to change the way physical evidence is now handled by law
enforcement agencies could possibly lead to the destruction of evidence that might
be invaluable at a later date.
Law enforcement members of the Commission noted that evidence
preservation is always an issue with law enforcement. However, there is no push
by agencies to change existing policies with regard to evidence retention.
At the conclusion of the discussion, the Commission by a unanimous vote,
recommended that the Florida Legislature continues its work in evidence
preservation for DNA testing under section 925.11 and section 925.12, Florida
Statutes (2011), which could lead to the exoneration of innocent defendants.

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(g)

Professional Responsibility
When one thinks of wrongful convictions, an incompetent defense attorney

or an overzealous prosecutor may spring to mind. One study has shown that the
single most definitive factor in whether a defendant receives a capital sentence is
the quality of their defense attorney’s representation. Robert H. Jackson, later a
U.S. Supreme Court Justice and the lead prosecutor of the Nazi war criminals at
the Nuremberg trials, said in 1940 as U.S. Attorney General in a speech to federal
prosecutors: "The prosecutor has more control over life, liberty, and reputation
than any other person in America."
The Innocence Commission chose to focus its study of professional
responsibility solely on defense attorneys and prosecutors due to the central role
that both play in the criminal justice system. Professional responsibility issues for
both sides of the adversarial system have played a role in wrongful convictions.
According to research conducted by the Innocence Project, 54% of the first 255
DNA exonerees raised claims of ineffective assistance of counsel. Further analysis
by the Innocence Project shows that appellate courts rejected the overwhelming
majority of these claims (81%).
In 2009, The Justice Project determined that prosecutorial misconduct was a
factor in dismissed charges, reversed convictions, or reduced sentences in at least

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2,012 cases since 1970, thirty-two of which involved the wrongful convictions of
innocent individuals.
Innocence commissions and task forces in other states have made numerous
recommendations for defense attorneys and prosecutors relating to professional
responsibility. Common recommendations for defense attorneys include increased
educational and training requirements, especially for public defenders, as well as
better compensation to retain experienced attorneys and to provide for trial
expenses such as expert witness testimony. For prosecutors, common
recommendations include requiring policies for exculpatory material (Brady)
disclosures, open discovery rules, and “best practices” manuals for training new
lawyers. Many of these states have also recommended increased funding for the
judiciary.
Because attorney malpractice or misconduct may go undiscovered or
unreported, addressing steps to increase professional responsibility amongst
criminal practitioners is of the utmost importance.
The Commission met on May 21st and May 22nd in Tampa, Florida, to
discuss the topic of professional responsibility. Sheriff Bill Cameron, Mr. Todd
Doss, Esquire, Mr. Ed Kelly, Esquire, State Attorney Brad King, Public Defender
Julianne Holt, and Assistant Public Defender Rory Stein addressed the
Commission. The complete presentations and Commission discussion with the
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speakers are contained in the Commission minutes, attached at Appendix H. The
presentations of Mr. King, Ms. Holt, Mr. Doss, Mr. Kelly, and Mr. Stein are
relevant to both the issue of professional responsibility and the issue of funding of
the criminal justice system. However, the main thrust of their discussions with the
Commission centered on funding and the continuing attempt to provide
experienced attorneys to represent both the state and defense in criminal cases.
Therefore, their presentations are addressed in section VI (h) of this report.
Sheriff Cameron addressed the Commission with regard to his thoughts on
professional responsibility. He listed four topic areas that he thought could be
discussed by the members that were brushed over by the Commission at earlier
meetings.
(1)

Suspect Identifications.

Sheriff Cameron noted that the Commission spent a great deal of time
discussing photo arrays used by witnesses during criminal investigations and the
use of independent photo line-ups. There also was discussion amongst the
Commission members about in-court identifications. Sheriff Cameron asked if the
Commission should recommend that there be no in-court identification of the
defendant. The only identification evidence that would be admitted is the
identification made during the investigation of the crime. He noted that he was
amazed that witnesses could identify a suspect in court when a great deal of time
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had passed and the defendant had changed his or her appearance. Sheriff Cameron
said it made little sense to him that there is an in-court identification of the suspect.
This raises a lot of questions about the validity of the identification.
(2)

Ineffective Assistance of Counsel

Sheriff Cameron noted that the Commission had listened to the testimony of
four exonerees who appeared before the Commission. The issue of the quality of
the representation of these individuals was raised during the discussions. He
commented that the members had discussed the underfunding and the
understaffing of the public defender’s office and the inexperience of some
assistants. He asked if the Commission should recommend that in at least capital
and life cases, more experienced private counsel be required to be assigned to the
case and that the state fund this counsel for the indigent defendant. Sheriff
Cameron said there is clearly a difference in the quality of representation between
highly paid counsel and other attorneys.
(3)

New Technology Evidence Testing

Sheriff Cameron reminded the Commission that there had been discussions
in some of the exoneration cases regarding continued requests to have old evidence
tested with new DNA technology, but those requests were repeatedly denied by the
courts. It took Mr. James Bain, an exoneree, five years to get testing under the
new science. When new science appears on the market how do we address this in
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the future? Can we take discretion away from the trial court? Do we recommend
certain guidelines that the court must follow? As science changes, this could
become a greater issue of concern.
(4)

DNA Funding

Sheriff Cameron commented that the single most current and relevant issue
in trying to ensure fewer wrongful convictions is the funding of DNA sampling at
the time of arrest and DNA evidence testing. Sheriff Cameron noted that the
Florida Legislature had passed a law permitting the taking of a DNA sample from
a person who is arrested. This legislation was an unfunded mandate. He suggested
that there is no greater thing the state can do than to provide adequate funding for
laboratory funding for DNA testing of persons arrested for the commission of a
crime.
After the presentation by Sheriff Cameron, the Commission turned its
attention to the need for adequate training for prosecution and defense counsel.
The Commission recognizes that inexperienced attorneys are deficient in the taking
of depositions, filing and responding to suppression motions, and completely
understanding the requirements of Florida’s rules of criminal procedure, including
discovery.
Sheriff Cameron noted that all attorneys are members of The Florida Bar.
He asked why state attorneys and public defenders could not have requirements set
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by The Florida Bar to be continually educated in the field of criminal law and have
the courses set by the Florida Prosecuting Attorneys Association and the Florida
Public Defender Association.
Mr. Michael Ramage, General Counsel for FDLE, thought that there was
room for law schools to focus on practical training for attorneys who desired to
become assistant state attorneys or assistant public defenders. Mr. Ramage said it
is clear that law schools do not teach law students how to be assistant state
attorneys or assistant public defenders. Students receive very little practical
experience. Instead, they are taught legal theory.
Judge Perry asked why simulated training could not be provided so that
attorneys get the basics without having to wait for a full training class. Judge Perry
suggested that one way to handle the issue was through on-line courses.
Ms. Barzee raised the issue of staffing in public defender and state attorney
offices. There is a question of whether you should have a young attorney handling
a third degree felony, when the penalty could be thirty years, not five.
Ms. Daniels noted that the professionalism course required by The Florida
Bar is not well suited for state attorneys and public defenders. There are topics
such as setting fees that are not relevant to what prosecutors and defense counsel
do. Ms. Daniels commented that her office has to pay for assistants to attend the
course. The attorneys have reported back saying they lose a half-day of work and
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it is a waste of time. Ms. Daniels recommended that public defenders, state
attorneys and attorneys who do criminal appellate work for the Department of
Legal Affairs have a separate professionalism program.
Ms. Snurkowski noted that there has not been any success in getting the Bar
to change the curriculum. The Bar does not acknowledge that there is a body of
graduates who come out of law school and go to state offices.
Mr. Coxe commented that taking the professionalism course for new lawyers
does not even require that an attorney leave his or her office to obtain the
continuing education training. He said one problem that has been identified is that
attorneys do not recognize what Brady requires. Rule 3.112 of the Florida Rules of
Criminal Procedure requires that an attorney have twelve hours of special
education on the defense of capital cases. The rule does not say you take the
course only if you can afford it. For all lawyers it is not unreasonable to have a
two hour program on Brady delivered on DVD or compact disk. In the event an
attorney fails to certify that the course has been completed, the attorney would be
prohibited from representing any defendant in a felony case.
Mr. King advised that many years ago, a prosecutor could opt out of the
professionalism training until such time as the person left the state attorney’s
office. The course is now mandatory for all attorneys who practice in Florida. Ms.
Daniels suggested that the previous requirement that the course be taken after the
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attorney leaves the service of the public defender or state attorney be reinstituted.
This would help in two ways. First, the state attorneys and public defenders would
not have to bear the $160.00 cost of the program. The attorney could pay for the
cost of the course when he or she leaves the office. Second, have The Florida Bar
approve a course for prosecutors and defense attorneys. Brady and discovery
obligations would be included in the professionalism program.
Mr. Coxe said the problem with exempting out one class of lawyers is that
other lawyers would argue they should not have to take the course either. The Bar
has said that the basics of professionalism need to be taught to all attorneys.
Training on professionalism works if it is uniform for everyone.
Mr. Hill said it made a lot of sense to offer a professionalism program for
new attorneys. He did not think the Commission could mandate what a law school
does. He said the Commission should encourage the law schools to offer a course
in being a public defender or state attorney.
Dean Acosta thought perhaps this should go a little further. Law schools
have externship programs with public defender and state attorney offices. It
includes a component of what it means to be a state attorney or public defender.
He said the law schools should shift to an apprentice model and not an externship
model. He suggested a student should actually spend his or her final semester in a
public defender or state attorney office. This gives the student a set of skills that
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you can’t get in the classroom. He suggested recommending that law schools be
encouraged to work with state attorneys and public defenders and imbed students
in those offices during the final semester by serving as assistant state attorneys or
assistant public defenders.
Judge Perry drew the Commission’s attention to a report by the Justice
Project. Judge Perry pointed out that according to the report; the most common
form of misconduct is the failure of prosecutors to provide favorable evidence to
the defense. He asked if someone would like to offer a motion that the FPAA
develop training programs that can be remotely delivered dealing with discovery,
Brady, Giglio, and other cases setting forth the prosecutions’ obligations. In
addition, any motion should include recommending that the Legislature provide
funding in this area.
Mr. King moved to recommend to the Florida Supreme Court that Florida
Rule of Criminal Procedure 3.112 be amended to require that any attorney who is
practicing law in a felony case must have completed at least a two hour course
regarding the law of discovery and Brady responsibilities. The motion was
seconded, and passed the Commission by a unanimous vote.
Staff advised the Commission that two choices were available with regard to
the recommendation. The Commission could file a petition with the Court seeking
an amendment to rule 3.112. The problem with this procedure is that the
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Commission will no longer exist after June 30, 2012. In addition, the Commission
staff will terminate their employment with the Office of the State Courts
Administrator, and no staff member will be available to follow through with the
rule proposal. As an alternative, the Commission could recommend that the Court
forward the recommendation for a rule amendment to The Florida Bar Criminal
Procedure Rules Committee. Ms. Snurkowski asked if the Commission could
recommend to the Court that the rules committee handle this within a certain
period of time. The members were advised that the Commission could make that
recommendation, but it is within the discretion of the Court to set any time limits.
Commission members discussed the possibility of recommending to the
Court that the Supreme Court Criminal Court Steering Committee be tasked with
proposing a rule amendment to the Court because it is more streamlined than the
rules committee. Florida Supreme Court Administrative Order AOSC10-34 sets
forth the authority of the Criminal Court Steering Committee. The committee is
not specifically authorized to propose a rule amendment to rule 3.112. However,
the committee shall perform any task in furtherance of justice in criminal cases as
may be requested by the Chief Justice. In addition, the committee is authorized to
pursue a proposed rule amendment jointly with the appropriate Florida Bar
procedural rules committee and jointly review any amendments or proposals and
indicate whether the Bar committee concurs, disagrees, or recommends
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modifications, further study, or other action with regard to the proposed rule
amendments, and thereafter file any proposed amendments and comments in
petition form with the Clerk of the Florida Supreme Court.
Therefore, the Commission recommends that the Court issue an
administrative order authorizing the Criminal Court Steering Committee to jointly
review with the Criminal Procedure Rules Committee the recommendation of the
Commission, and consider filing a petition to amend rule 3.112, or create a new
rule of criminal procedure to address the education requirement proposed by the
Commission.
Mr. Hill moved that the Commission approve a resolution to have the FPAA
and the FPDA work together to develop a course to meet the two hour requirement.
The motion passed by a unanimous vote.
Mr. King moved that the Commission recommend to The Florida Bar that it
suspend the Practicing with Professionalism requirement for assistant state
attorneys and assistant public defenders until they leave their employment as
government attorneys. However, the assistant state attorney and assistant public
defender would be required to take a professionalism course offered by the FPAA
or FPDA. The motion failed by a vote of 10 to 9.
Dean Acosta suggested there be more on-line courses for prosecutors and
public defenders. He moved that the Commission recommend that the Florida
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Legislature fund the FPAA and FPDA, the Department of Legal Affairs, and the
office of criminal conflict and civil regional counsel, to set up a series of on-line
training courses that are available to all government attorneys practicing in the
criminal law area. The motion passed by a vote of 18 to 1.
Commissioner Bailey asked the Commission to consider recommending that
the Florida Legislature increase funding for FDLE to retain crime laboratory
technicians and that all felony offenses be included in the DNA database in order
to remove repeat offenders from the street. A complete discussion of the subject
matter is included in the Commission minutes at Appendix H. The Commission
approved this recommendation by a unanimous vote. The recommendation is set
forth in section VII of this report.
Ms. Barnett made a motion to have the Commission recommend to the
Florida Legislature to increase funding for the Florida Department of Law
Enforcement DNA laboratories to increase the DNA profile database and
accelerate its full implementation no later than 2015. The motion passed by a vote
of 18 to 1. This recommendation is set forth in section VII of this report.
Commissioner Bailey moved that the Commission recommend that the
Florida Legislature reevaluate the salaries and staffing of the biology section of the
FDLE crime laboratories in order for FDLE to be more competitive and able to

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hire and retain trained personnel. The motion passed by a unanimous vote. This
recommendation is set forth in section VII of this report.
Mr. Coxe and Ms. Walbolt both recommended that in the event a criminal
case is reversed because of attorney misconduct, the name of the attorney who has
engaged in such misconduct should be identified by name in any opinion issued by
the trial or appellate court. In addition, Ms. Walbolt recommended that the
attorney found to have engaged in misconduct should be referred to The Florida
Bar for disciplinary action.
Judge Perry suggested that the Commission recommend to the Florida
Legislature that a study of the caseloads of the state attorneys, public defenders,
and the office of criminal conflict and civil regional counsel, be done by the Office
of Program Policy Analysis and Government Accountability (OPPAGA).
The Commission held its last meeting on June 11, 2012 in Orlando, Florida.
At the meeting, the members considered whether to adopt as recommendations the
proposals of Ms. Walbolt and Mr. Coxe. The full discussion of the members is set
forth in the June 11, 2012 Commission minutes at Appendix Q. All of the
members agreed that misconduct on the part of the attorneys is a very serious
matter that deserves the full attention of The Florida Bar. As a general proposition,
the members agreed that the publication in a court opinion of the name of an
attorney engaged in serious misconduct might serve as a deterrent. However, Mr.
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King was concerned that the publication of the name would tend to be one-sided,
since the state has no ability to appeal an acquittal in a criminal case. The name of
a prosecutor could be published when there was an appeal of a conviction.
However, the conduct of any defense attorney in cases of acquittal would never be
disclosed. Ms. Snurkowski was concerned that in the event an attorney was cited
for misconduct, and the allegations were false, it would be difficult to purge the
name of the innocent attorney from the court opinion.
Upon the conclusion of the discussion regarding the recommendations of
Ms. Walbot and Mr. Coxe, Mr. Coxe moved that the appellate courts consider the
identification of the lawyer who engages in serious misconduct, whether defense or
prosecution, that results in a reversal of a conviction. The motion was seconded by
Judge Silvernail. The motion passed by a vote of 18 to 1, with Mr. King casting a
no vote.
Mr. Hill moved that The Florida Bar carefully review the decisions of the
trial or appellate courts which result in a reversal because of attorney misconduct.
The motion was seconded by Ms. Daniels. The motion passed by a vote of 18-1
vote, with Mr. King casting a no vote.
The Commission considered the recommendation of Judge Perry that a study
of the caseloads of state attorneys, public defenders, and the office of criminal
conflict and civil regional counsel be conducted by the Office of Program Policy
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Analysis and Government Accountability (OPPAGA). Although the members of
the Commission are in full agreement that the criminal justice system in Florida is
grossly underfunded, and that the Florida Legislature is fully aware of the issue,
the members could not reach a consensus on what type of study should be
conducted by the Legislature.
(h)

Funding of the Criminal Justice System
Over the course of several meetings, the Commission heard presentations

from several speakers who addressed the inadequate funding of the criminal justice
system. These presentations, along with materials contained in Commission
notebooks, and the independent knowledge of the twenty-five Commission
members, has led the Commission to issue this statement:
Inadequate funding leads to mistakes that may cause wrongful
convictions.
The following presentations before the Commission highlight the seriousness of
the problem in Florida:
Mr. Todd Doss, Esquire, and Mr. Ed Kelly, Esquire
Mr. Doss and Mr. Kelly spoke on behalf of the Florida Association of
Criminal Defense Lawyers (FACDL), as well as expressing their personal views
on the topic of professional responsibility.

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Mr. Doss explained to the Commission that the Legislature has created a
system where conflict cases go from the public defender to regional counsel, and
then if necessary, to conflict counsel. He noted that the legislatively mandated fee
schedule affects the quality of representation. He commented that section 27.40,
Florida Statutes (2011) was amended by the 2012 Legislature. The statute now
permits the court to establish a registry of attorneys agreeing not to exceed the cap.
The caps set forth in s. 27.5304, Florida Statutes (2011), are $15,000 for a capital
case, $3,000 for a life felony, $2,500 for a non-capital felony, and $1,000 for a
misdemeanor or juvenile case. Mr. Doss noted that some of these cases take
hundreds of hours to complete. Some have multiple defendants or co-defendants.
Some cases involve multiple jurisdictions and have sentencing enhancements.
Other cases involve prison releasees or habitual offenders. These types of cases
raise the questions of whether the case should be pled, or go to trial. In addition,
consideration has to be given to what investigative techniques should be used prior
to trial.
Mr. Doss drew the attention of the members to rule 4-6.2(b) of The Rules
Regulating The Florida Bar. A portion of the rule states:
“A lawyer shall not seek to avoid appointment by a tribunal to represent a
person except for good cause, such as when:

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(b) representing the client is likely to result in an unreasonable financial
burden on the lawyer.”
Mr. Doss explained that this rule creates tension for what the attorneys are
asked to do. As an example, in one case, the court assigned attorneys outside the
list because no registry attorney would take the case. The case took five hundred
hours of preparation before even going to trial. These attorneys were sole
practitioners and have an overhead of ten to twelve thousand dollars a month to
keep their practices going. Under the Justice Administrative Commission (JAC)
rules you get no interim payments. A person does not get paid until the case is
over. Mr. Doss said there are situations where the JAC has refused to authorize
payment of expert witness fees and the attorneys were stuck with paying the fee to
the expert. The pay in these cases does not even cover the overhead of the
attorneys appointed to represent the client.
In the event an attorney seeks a fee in excess of the statutory maximum, it is
necessary to set the matter for a hearing. If the court orders payment in excess of
the fees set by statute, and the JAC appeals, the attorney does not get paid until the
appeal is final. Mr. Doss explained that an attorney may ask for compensation
above the flat fee based on the number of hours put into a case. He said the court
may order compensation to be paid to the attorney at a percentage above the flat
fee rate. However, the percentage may not exceed 200 percent of the established
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flat fee, absent a specific finding that 200 percent of the flat fee in the case would
be confiscatory. Mr. Doss said some of the fees come out to fifteen dollars an
hour.
Mr. Doss said that in order to pay the fees for an expert, a motion is filed
with the court. He said the court usually sets a fee and if the attorney needs
additional money to cover the cost of an expert, he or she comes back to the court.
He noted that one issue is that the JAC will not appeal until the attorney asks that
the expert be compensated. There is no compensation for the expert until the
appeal is over.
Mr. Coxe asked Mr. Doss to comment regarding those situations where an
attorney agrees to the statutory fee, but the case turns out to be extremely time
intensive. What are the ethical considerations when the case has not even been
investigated? Mr. Doss said this puts the attorney at risk of violating the rules of
The Florida Bar and creates an ethical dilemma. The attorney either has to be
wealthy or the client is going to get short shrift. Mr. Doss said the American Bar
Association notes that there are fee structures set so low that there are incompetent
or inexperience lawyers handling the cases.
Mr. Doss said there needs to be better funding for conflict cases. There are
an inordinate number of attorneys on the list who are inexperienced and get their

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experience at the expense of the defendant. He said that there are good attorneys
on the lists who look at it as performing a pro bono service.
Mr. Ed Kelly, Esquire, addressed the Commission. He advised the
Commission that he is on the registry list and had a case that went to trial twice.
He has a law practice that has both civil and criminal components to it. He
commented that he is not wealthy, but can pick and choose the cases he wishes to
handle. In one particular case, he put in 272 hours in one year, including the
investigation. Based on all the work done, he desired to exceed the statutory cap.
He said he filed a motion with the court and a hearing was held. Mr. Kelly advised
the Commission that if the judge is going to double the fee, there has to be a
showing that the case was extraordinary and unusual. In this case, the judge
doubled the fee. The judge has to make a finding that the fee is not confiscatory,
but failed to do that in his order. Mr. Kelly commented that based on the number
of hours dedicated to the case, his hourly fee came out to $14.00 an hour. Mr.
Kelly said his office expenses are $40 an hour to pay salaries and pay the rent. Mr.
Kelly opined that the fee schedules are going to affect the quality of representation.
Mr. Brad King, State Attorney, 5th Judicial Circuit
Mr. King gave a presentation on behalf of the Florida Prosecuting Attorneys
Association (FPAA). A PowerPoint presentation outlining the work of the state
attorneys in the twenty judicial circuits is attached at Appendix H.
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Florida has 20 judicial circuits and they are all different in composition and
population and the way the cases are handled and how budgets are administered.
The following is a list of state attorney output measures for the twenty
judicial circuits serviced by the state attorneys in 2011.
(1) Criminal Allegations: 1,228, 394
(2) Reopened Cases: 255, 627
(3) Civil Cases: 34, 261
(4) Cases Referred to State Attorneys: 1,628,282
The following is a breakdown of the total number of cases handled by the
state attorneys in 2011.
(1) 1.628 million case referrals
(2) 1809 assistant state attorneys
(3) 900 case referrals per assistant state attorney annually
1,169 assistant state attorneys handled 430,484 felony referrals in 2011.
This means that on average, each assistant state attorney was responsible for 368
case referrals in 2011.
470 assistant state attorneys who handle misdemeanor cases were referred
1.027 million cases in 2011. This averages out to 2,185 case referrals per assistant
in 2011.

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171 assistant state attorneys assigned to juvenile cases in 2011 were
responsible for 136,383 juvenile case referrals. This averages out to 798 case
referrals per assistant for the year 2011.
An assistant state attorney who has three years or less experience in an office
is approximately 29 years of age. His or her average student loan is $80,000 to
$100,000. The average starting salary is $40,000. The average salary is $47,000.
Fifty-six percent of the assistant state attorneys have less than 5 years
experience. Nineteen percent have 6 to 10 years experience. Nine percent have
11to 15 years experience. Five percent have 16 to 20 years experience. Eleven
percent have 21or more years of experience.
The turnover rate for assistant state attorneys in fiscal year 2009-2010 was
14.71%. The turnover for fiscal year 2010-2011 was 15.38%. Two benefits for
working as an assistant state attorney are health insurance and retirement benefits.
However, the Legislature has eroded both of these benefits by requiring payment
into the retirement fund and increasing the cost of health care coverage. Mr. King
noted that a study showed that most private entities don’t give the same benefits.
The salary of an assistant state attorney always ranks at the low end of the salary
scale. Mr. King noted that county attorneys, city attorneys, and their assistants,
make considerably more than assistant state attorneys.

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Ms. Snurkowski stated that there are 119 attorneys handling criminal appeals
statewide in the Department of Legal Affairs. She noted that the requirement to
pay into the retirement fund, along with a reduction in insurance coverage and
increase in premium payment has affected the ability to retain attorneys.
Ms. Barzee asked if it would be helpful if the assistants could defer
payments for student loans. Mr. King said the state attorneys have lobbied for
student loan deferment. In 1992 the state attorneys asked for 15 million dollars for
salaries to hire new assistants. The Legislature appropriated just over three million
dollars.
Judge Silvernail said he was concerned with the lack of adequate funding.
Mr. King said the concern was somewhat alleviated this year because the state
attorneys did not get the same cuts as other agencies. He said if cuts had occurred,
county court cases would not have been prosecuted in order to take care of the
felony cases. He said the state attorneys view the problem from a public safety
perspective. In his office, staff brainstormed what cases to prosecute and what
cases to let go. In certain types of cases he advises law enforcement via a letter
that the cases cannot be handled by his office.
Ms. Julianne Holt, Public Defender, 13th Judicial Circuit
Ms. Holt said that the criminal justice system is only as good as the people
that are in it. The question is can we do everything we can to stop wrongful
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convictions. For public defenders in Florida, no matter how underfunded, they
have the responsibility to minimize wrongful convictions. Ms. Holt noted that in
her circuit, two weeks of orientation training is offered to new assistants. Other
offices have been required to put very experienced and highly paid attorneys in the
juvenile system because these juveniles are placed in the state prison system. Ms.
Holt noted that errors are being made at sentencing because of the convoluted
sentencing system.
Ms. Holt said there is a continuing attempt to raise the quality of
representation. There are 1,500 assistant public defenders in the State of Florida.
In Hillsborough County, it takes two hours to go through the process to see and
interview a client. It is an emotional and taxing job to be an assistant public
defender. Ms. Holt commented that the career assistants are there because it is a
calling. The average salary for over twenty-one years of experience is $90,000.
These attorneys handle capital homicide and capital sexual battery cases. All of
the experienced attorneys serve as mentors, coaches, trainers, etc. The adequacy of
funding or proper funding needs to be addressed.
Ms. Holt advised the Commission that the Florida Public Defender
Association has urged that the Legislature conduct a weighted caseload study.
This should include regional counsel and the Department of Legal Affairs.

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Ms. Holt noted that in the private sector, an entry level attorney makes
$75,000 to $125,000 with a firm. Included in the salary package is an investment
plan and health insurance. When people say the state provides equal pay and
benefits to the private sector that just is not true. Ms. Holt said she would like to
have additional funds available to reward those attorneys who go above and
beyond the call of duty. She noted that attorneys take college courses just to defer
payments on their student loans. Many public defenders do not allow their
assistants to take second jobs. In the private sector, you can always find something
else to do to make money. The assistant public defenders cannot do criminal
defense work outside their practice of criminal law.
Ms. Holt said she had suggestions with regard to workload and attorney
competency. There must be full and adequate funding of due process costs. That
amount has been reduced over the years.
Ms. Holt said there is no doubt that sentencing reform is something that
should be looked at as well as decriminalization of certain criminal offenses. The
types of cases that are in the system should be those that impact public safety.
Ms. Holt commented that there is no doubt that a lack of funding has
affected representation. The lack of funding has made for more triages, and more
motions for postconviction relief are being filed in her circuit than ever before.
There is a problem with not calling witnesses to testify. She thought that open
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discussions with defendants in court with regard to maximum sentences would
help reduce the number of postconviction relief motions.
Mr. Coxe asked how the lack of funding has affected Ms. Holt’s office. She
said there are not sufficient funds to investigate whether there are eyewitnesses to a
crime, or whether the stop by law enforcement is lawful. Ms. Holt commented that
the majority of her cases are robberies and homicides. Mr. Coxe asked what is not
being done other than the need for more people. Ms. Holt said that in a perfect
world every juvenile should be evaluated for competency with regard to waiver of
Miranda. She said the inability to have a competency evaluation means that
Miranda stands and the statement is admitted into evidence.
Judge Perry said the Commission should consider other issues besides a lack
of funding. He noted that motions are not being filed to attack lineups;
investigations are not being conducted regarding alibis; and there is little or no
training for lawyers on how to attack junk science. He said he has spent time
researching some cases that were not read by the state or the defense. He asked
what is it we can do in the realm of training the prosecutors and defense counsel.
Ms. Daniels said she had been thinking along the lines expressed by Judge
Perry. She noted that both the Florida Prosecuting Attorneys Association and the
Florida Public Defender Association hold conferences where training is conducted.
A well attended conference might have two hundred assistants present.
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Ms. Holt agreed that more training was needed. As an example, training is
needed on filing motions to suppress and how to properly depose medical
examiners. Ms. Holt noted that except for board certification, attorneys can earn
the required continuing legal education hours by taking any course on any subject
that is offered.
Ms. Barzee commented that if you have a caseload of six hundred cases and
two hours available to conduct one interview, there has to be a lack of
communication. People must be going months without seeing an attorney. Ms.
Holt said her office has a policy to interview the client once between court dates.
Ms. Holt reiterated that certain cases need to be taken out of the system and
decriminalized. A beginning lawyer needs at least one hour to conduct a case
conference. In addition, he or she has to be able to read police reports and
recognize there is going to be a supplemental report. You don’t learn any of this
from law school. She noted that managing a case takes away the time with a
client. It takes three years of training to become a felony attorney in any public
defender office.
Mr. Rory Stein, Assistant Public Defender, 11th Judicial Circuit
Mr. Stein said there was no doubt that the workload of the public defenders
has an impact on wrongful convictions. Everyone can agree that ferreting out

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innocence requires a competent attorney to investigate the evidence. The attorney
needs to be both ethical and diligent.
Mr. Stein said public defenders have back-loaded their resources and
concentrate on cases that survive arraignment. That is where the resources are
used. Now with ever increasing caseloads, defendants are offered a plea at
arraignment. Twenty-five to thirty percent of the cases are disposed of at the
arraignment. If these cases were not disposed of, it would be impossible for the
courts to handle all the cases on the criminal dockets.
Mr. Stein covered three main points during his presentation:
(1) Not every defendant who pleads guilty at arraignment is guilty. Those
in jail need to get out, get to a job, or feed a family.
(2) At the time of arraignment, the lawyer is not in a position to adequately
advise the defendant if he or she should enter a plea. All the attorney has available
is the arrest warrant and five to ten minutes to talk to the client. There is no
opportunity to do a meaningful investigation. In 34 years of practice, Mr. Stein has
never seen enough information in the arrest form to properly advise a client how to
proceed. Therefore, it is not possible to be sure the plea is willfully, freely, or
knowingly entered. Mr. Stein said if a client is in custody, there is a non-attorney
paralegal who will see the client. It is a usual practice to seek review of the
defendant’s bond status. Many clients will resolve a case just to get out of custody.
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Getting out of jail has an impact on how a case is resolved. Mr. Stein said there is
never a thorough client intake session, along with any crime scene investigation.
He said that up to three years ago, there was no contact until the time of
arraignment. There now is a unit in place to review the arrest warrant and try to
interview clients, but this does not occur 100% of the time. The first time a client
is seeing an attorney is at arraignment.
(3) There is not enough time, especially for young attorneys, to know if the
client is suffering from a mental condition. Clients who do not understand the case
or the nature of the proceeding make decisions based on three to five minute
conversations with the assistant public defender.
Mr. Stein noted that in a line of cases, the United States Supreme Court has
placed the onus on defense counsel to properly advise the client under the Sixth
Amendment. This can only be done when there is adequate time to investigate the
crime. The problem with wrongful convictions is that they are discovered years
after the offense is committed. At arraignment, there has been no testing of
evidence and no investigation. People are being asked to plead guilty without
much assistance from the attorneys.
Mr. Stein advised the Commission regarding the Padilla decision. Padilla v.
Kentucky, 130 S. Ct. 1473 (2010), is a case in which the United States Supreme
Court decided that criminal defense attorneys must advise non-citizen clients about
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the deportation risks of a guilty plea. The case extended the Supreme Court's prior
decisions on criminal defendants' Sixth Amendment right to counsel to
immigration consequences. Mr. Stein pointed out that defense counsel must know
immigration law and advise a client as to the consequences. At arraignment, there
is not an opportunity to learn what all the consequences might be for each
defendant.
A few years ago a study was done showing that the caseload for assistant
public defenders handling non-capital cases was 500 felony cases a year. At
today’s levels, the caseloads are deeply concerning.
Mr. Stein pointed out that since the 1970’s, technological advancements,
such as the Internet and the use of Skype have made lawyers more efficient.
However, there are thousands of non-English speaking clients. There are not
enough interpreters in the system. In the Eleventh Judicial Circuit, if a nonEnglish speaking witness needs to be deposed, an assistant public defender has to
wait until the afternoon when the interpreters are finished with court work that is
handled during the morning sessions. In Miami, traveling to the pretrial detention
facility takes one-half to two-thirds of a day. At the facility there are workforce
restrictions and fewer personnel available. All this reduces the time available to
ferret out innocent clients.

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Mr. Stein commented on the turnover that occurs at both the state attorney
and public defender offices. This turnover creates a situation where the new
attorney has to spend time with a supervisor, thus reducing the effectiveness of
both attorneys.
Mr. Stein recommended that the Florida Legislature conduct a case weighted
workload study. It is important to determine how much time it takes to handle a
caseload. One needs to take into account that triaging is not the goal. The goal is
proper representation to curtail wrongful convictions. We should not guess how
much work a lawyer should have. We need to know how much work a person can
handle.
Mr. Stein discussed the moral authority of the courts that is derived both
from the U.S. Constitution and the statutes. It is important that victims have
respect for the decisions reached by the courts. They have this respect because
there is a fair fight and only proper funding allows for this. When either side gains
an advantage, the cases are eroded, and it undermines the courts. What is critical is
that there be in place adequate funding for both sides in the workplace.
Mr. Stein noted that public defender offices train individuals to be trial
lawyers, but they are not trained to be psychologists. Attorneys are being asked to
determine the competency of a client in a very short period of time.

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Ms. Barzee raised the issue of staffing in public defender and state attorney
offices. She asked what recommendations Mr. Stein might have regarding staffing
needs. Mr. Stein said that over time he has observed that some attorneys coming to
the office are less equipped than in the past. Many public defender offices are
unable to provide mentoring. In the past, it usually took two years before an
attorney would handle a felony case. Now, it is a year to fifteen months. Mr. Stein
noted that there have been no raises to employees over the last several years and
the attorneys are getting younger. He said if the trend continues, there may not be
enough lawyers to meet the standards for capital cases. If there is no opportunity
for economic advancement, and no loan forgiveness programs, the young attorneys
will leave. Now, many attorneys stay only three or four years, even though they
are dedicated to the mission and love the work. You can only ask someone to be
poor for so long.
Judge Perry asked if there were factors Mr. Stein sees that leads to wrongful
convictions. Mr. Stein advised Judge Perry that the lawyers do not depose every
witness. It just is not possible. He said more investigators are needed to get out
into the street. He said the public defenders need to have the ability to forensically
test what evidence is found. Due process costs are provided, but one has to
constantly weigh the needs of one client against the needs of another. There is a
finite pot of money. Mr. Stein said the public defenders have learned to prioritize
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their caseloads. Their work is similar to a MASH unit. It is not unheard of to have
forty or fifty cases set for trial on a given day.
Ms. Nancy Daniels, Public Defender, 2nd Judicial Circuit
At the June 11, 2012 meeting, Ms. Daniels spoke on behalf of the Florida
Public Defender Association and as the Public Defender of the 2nd Judicial Circuit.
Ms. Daniels noted that there are public defender offices in all twenty
circuits, and the public defenders also handle cases in the five appellate districts.
In 1st, 2nd, and 4th circuits, the appellate backlog is substantial. If an appellate
record were to arrive on June 11, 2012, it would be September before someone
would look at it. This problem is the same for the Attorney General’s Office. The
lawyers have had to ask the chief judges for help in getting extensions of time for
filing pleadings in cases on appeal.
Ms. Daniels explained all the services the public defenders provide to the
criminal justice system. Statistics show that statewide there are 504 cases per
attorney. There are 1,511 assistant public defenders, statewide, to handle
approximately 761,689 cases. This means that one attorney has, on the average,
only two hours to devote to a case.
Ms. Daniels advised that the rate for a newly hired attorney at base is
$39,074. A salary this low does not permit her office to keep an attorney on staff
unless there is the ability to raise the base salary in later years.
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Ms. Daniels said that assistant public defenders have approximately $80,000
to $100,000 in student loans. This averages out to $1,100 a month in loan
payments, on a starting salary of $3,076 a month. She advised that there is the
John R. Justice Loan Forgiveness Program, but one has to stay in public service for
a specified number of years. A person has to make the loan payments for years
before there is loan forgiveness on the balance. She commented that she does not
have people staying that long just to pay off a student loan.
Ms. Daniels advised that in her office, and statewide, an attorney is moved
into a felony division to handle serious criminal offenses after about three years of
service.
Ms. Daniels stated that both the state attorney and public defender salary
structures are inadequate. The funding is also inadequate for the office of criminal
conflict and civil regional counsel. Government lawyers have suffered as a result
of being required to contribute to their retirement plan, as well as paying for
increases in health care premiums.
Ms. Daniels commented on the language in Senate Bill 1960 (2012-123,
Laws of Florida). The legislation states that if the chief judge of a circuit
establishes a limited registry that includes only those attorneys willing to waive
compensation in excess of the flat fee, the court shall appoint attorneys from that
registry unless there are no attorneys available to accept the appointment on the
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limited registry. Ms. Daniels found this legislation to be particularly troublesome
and felt it was unfair to require attorneys to waive asking for any fee above the
amount set by the Legislature, no matter how complex the case. The end result of
this legislation is that new attorneys, and attorneys who need clients, will agree to
the fee, while other attorneys will refuse to handle conflict cases.
Mr. Coxe said that Senate Bill 1960 is a repeal of Gideon v. Wainwright. It
is an economically driven issue, not a quality of representation issue and asked if
the Commission would take a stand on the legislation.
Judge Perry commented that if the State of Florida was serious about
wrongful convictions, Senate Bill 1960 may fly in the face of that. There will be
an increase in rule 3.850 motions that the criminal justice system will have to deal
with. There will be lawyers who may not have taken depositions, have not done
discovery, will see the client at a pretrial hearing, and then convince the defendant
to plead guilty so he or she can get out of jail. Later, there will be a probation
violation and the defendant will be sentenced to prison. At that time, the 3.850
motion will be filed and the defendant will claim he or she was not guilty of the
original offense.
Mr. Smith felt that eventually there will be a legal challenge to the flat fee
schedule.

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The Commission is convinced that the fees set by the Legislature to
privately appointed counsel under s. 27.5304(5), Florida Statutes (2011), are
completely inadequate. The Legislature has applied a dollar value to felony
offenses based on the degree of the felony. As an example, the fee paid to a
private attorney for representation at trial in any noncapital, nonlife felony is
$2,500. One attorney may be paid $2,500 for a third degree felony grand theft,
while another attorney receives exactly the same amount for a first degree felony
robbery with a weapon. It is illogical to set an identical fee based on the degree of
the felony. Instead, a fee schedule should be established based on the level of the
felony offense.
Section 921.0022, Florida Statutes (2011), sets forth the Criminal
Punishment Code. The Code applies to any felony offender whose offense was
committed on or after October 1, 1998. The Code establishes severity offense
rankings for most felony offenses in Florida. The rankings range from a score of 1
to 10. The least severe offense is rated a 1, while the most serious offense scores a
10. The list of offenses is set forth in s. 921.0022(3), Florida Statutes. Not every
felony offense is covered by this section. Until the Legislature specifically assigns
an offense to a severity level in the offense severity ranking chart, the severity
level is within the following parameters: A third degree felony is a level 1 offense.

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A second degree felony is a level 4 offense. A first degree felony is a level 7
offense. A first degree felony punishable by life is a level 10 offense.
The level of the offense, not the degree of the felony, is critical in
determining the possible sentence imposed on a felony offender. Although the
court may sentence any offender to the statutory maximum upon conviction, the
Criminal Punishment Code scoresheet is utilized to guide the trial court in
imposing a sentence that is somewhat uniform statewide. The state attorney shall
prepare the scoresheet for each defendant to determine the permissible range for
the sentence that the court may impose. For any defendant, the magic number to
be achieved is a score of 44 points or lower. 44 points or lower creates the
possibility of a non-state prison sanction, unless the court determines within its
discretion that a prison sanction (up to the statutory maximum) is appropriate.
For the most experienced assistant state attorney, a proper calculation of the
total number of sentencing points can be a significant challenge. Sentencing points
are applied for the primary offense, additional offenses at conviction, victim injury,
community sanction violations, prior criminal record, habitual violent offender,
and habitual offender, etc. In addition, sentencing multipliers are used for drug
traffickers, offenses against law enforcement officers, certain motor vehicle thefts,
criminal gang offenses, and certain types of domestic violence cases.

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A primary level 10 offense scores 116 points. A level 9 offense scores 92
points. It is not until a defendant reaches a level 6 offense (36 points), that the
possibility of a state prison sentence diminishes. The sentencing points continue to
drop as the severity level decreases until the bottom of the scale is reached. A
level 1 offense scores 4 points. In Florida it is not difficult at all to easily exceed
44 sentencing points, regardless of the degree of the primary offense.
The possible scoresheet scenarios to demonstrate the workings of the
Criminal Punishment Code are seemingly endless. But looking only at those
offenses that are a level 7 give some insight into why s. 27.5304, Florida Statutes,
is a misguided attempt to provide effective assistance of counsel at rock bottom
prices. A level 7 offense (with no other points assessed on the scoresheet) scores
the offender 56 points. Section 924.0024(2), Florida Statutes, requires that 28
points be subtracted from the total sentencing points when the total number of
points exceeds 44, and the remaining total is than reduced again by 25 percent.
The final number reflects the number of months that the offender is to serve in
prison. This number represents the lowest permissible sentence the court may
impose, absent certain circumstances set forth in s. 921.00241(1), Florida Statutes.
If the total score is 11 months or less, the offender cannot be sentenced to state
prison, but if a sentence of incarceration is imposed, shall serve the time in a
county jail facility. In the example set forth above, a score of 56 points is reduced
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to 28. That number is further reduced by 25% to leave the offender with a total
score of 21 points. In other words, assuming the court does not downwardly
depart, any felony offender convicted of a level 7 offense may easily be sentenced
to twenty-one months, or more, in the state prison. There are 115 felony offenses
listed as level 7 offenses in s. 921.0022(3)(g), Florida Statutes. 43 of these
offenses (37%) are third degree felony offenses. The remaining 72 offenses are
second degree felonies or higher.
Certain types of felony offenses are more likely than others to require the
trial courts to appoint private attorneys because of a conflict that has been
established in the case. Racketeer Influenced and Corrupt Organization (RICO)
cases are good examples of conflict cases because there are usually multiple
defendants. A RICO violation is a level 8 felony offense and scores 78 points at
conviction, assuming there are not other points included in the scoresheet. A
RICO conviction almost guarantees a person a sentence of imprisonment under the
Code since the scoresheet calculation comes out to 34.5 months. It is not
surprising that the Trial Court Budget Commission has determined that one of the
major reasons the trial courts have exceeded the fee cap set forth in s. 27.5304,
Florida Statutes, is because of the complexity of RICO cases.
A significant number of extremely serious felony offenses are assigned
offense levels 8, 9, and 10. The vast majority of these offenses in levels 8 and 9
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are first degree felony offenses punishable by a maximum sentence of thirty years
in the state prison. As an example, there are 45 level 9 felony offenses listed in the
Code. Of this number, 34 are first degree felonies. There are 8 felony offenses
listed in level 10, of which 3 are first degree felonies.
A review of the hundreds of felony offenses listed in s. 921.0022(3), Florida
Statutes, reveals that only ten of these offenses are either first degree felonies
punishable by life imprisonment, or life felonies. Yet the Florida Legislature has
determined that based on the degree of the offense, not the level of the felony
offense, the sum of $2,500 is adequate to secure effective assistance of counsel.
Whenever the likelihood of incarceration in the state prison is a significant
possibility, more time, effort, and expertise is needed in order to ensure effective
assistance of counsel. Any offender who scores 44 points or more falls into this
class. A flat fee of $2,500 for any non-capital, non life felony bears no rational
relation to the possible incarceration of the defendant in the state prison system.
The faulty logic of s. 27.5304, Florida Statutes, is even more apparent when
examining the fees for first degree felonies punishable by life, life felonies, and
capital cases. Only two felony offenses that are categorized as a first degree felony
punishable by life imprisonment are level 7 offenses. All of the remaining ones are
listed as felony levels 8, 9, or 10. All life felonies in Florida are either level 9 or
level 10 offenses. The Legislature has determined that these first degree felonies
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punishable by life, and life felonies, are valued at $3,000 when it comes to the fee
schedule. Common sense tells us that these cases are heavily litigated and rarely,
if ever, result in the imposition of a non-state prison sanction.
Last, but not least, is the flat fee schedule for capital cases. The Legislature
has asked an attorney to accept a flat fee of $15,000 to represent a defendant who
faces, at a minimum, a sentence of life imprisonment, or at most, a sentence of
death.
The Commission believes that the current funding process for private court
appointed counsel under section 27.5304(1), Florida Statutes, invites ineffective
assistance of counsel and wrongful convictions. Therefore, the Commission
recommends that the Florida Legislature immediately determine that the funding
for private court-appointed counsel be based on the level of the felony involved
and not a flat fee approach.
Excerpted below, in italics, is a summary of the comments from the Chair of
the Commission. There are few jurists better qualified to render an opinion
regarding the state of the criminal justice system in Florida. This excerpt is taken
from the Commission minutes of June 11, 2012, located at Appendix Q.

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Judge Perry said we have to think of the cost of injustice.
This is hard to quantify. Someone in jail who is wrongfully convicted,
or someone who is inexperienced, has to battle in court against
experienced attorneys. The only thing the criminal justice system has is the
confidence that people have in it. The underfunding
of this system in this state is going to lead us to a situation where
people will look at the system and have no faith or confidence in it.
We hear about the executive branch hiring out-of-state counsel
for three to four hundred dollars an hour. It would be one thing
if we start paying someone one hundred to one hundred
twenty-five dollars an hour to represent a person charged
with murder in the first degree, considering the state wants
to impose the ultimate sanction to forfeit that person’s life.
Now an attorney has to sign an agreement to take $15,000
for a case lasting more than a year. That is a mockery
in and of itself. When we have 10-20-life, we still have to
give the person a chance to come to court and require
the state to prove guilt. I challenge you to pull out
the Declaration of Independence and read what led to this
country breaking away from England. Read what the
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King of England did and ask if we are heading down
that path.
Mr. Reyes moved that the following recommendation be approved by the
Commission:
“The Commission believes that the current funding process for private courtappointed counsel under section 27.5304(1), Florida Statutes, invites ineffective
assistance of counsel and wrongful convictions. The Commission therefore
recommends that the Florida Legislature immediately determine that the funding
for private court-appointed counsel be based on the level of the felony involved
and not a flat fee approach.”
Judge Perry called for a vote on the recommendation. The Commission
passed the recommendation by a unanimous vote.
Mr. Hill offered a motion to address the student loan situation mentioned
both by Ms. Daniels and Mr. King. After Commission discussion, and input from
Judge Silvernail, the motion read:
“The Commission recognizes the experience and stability of staffing in the
state attorney, public defender, attorney general, and regional conflict counsel
reduces the likelihood of wrongful convictions and increases the likelihood of
effective assistance of counsel.

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Therefore, the Commission recommends that the Florida Legislature provide
supplemental funding to pay for student loans by enacting Senate Bill 362 and
House Bill 81.”
Mr. Hill’s motion passed the Commission by a unanimous vote.

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VII. Commission Recommendations
(a)

Informant and Jailhouse Snitches
(1)

The Commission recommends the adoption of a jury instruction

regarding the testimony of persons who have been labeled by the Commission as
an “informant witnesses.” The Commission does not have the authority to submit
to the Court a specific jury instruction via a petition. Therefore, the Commission
recommends that the Court request that the Supreme Court Committee on Standard
Jury Instructions in Criminal Cases review the proposed jury instruction dealing
with informant testimony for possible submission to the Court by way of petition.
The proposed instruction is set forth at Appendix N.
(2)

The Commission recommends that the Florida Legislature adopt a

statute mandating the electronic recording of statements of suspects during a
custodial interrogation, as set forth in Appendix L of this report. In the event the
Florida Legislature follows the recommendation of the Commission, it is
recommended that the Supreme Court Committee on Standard Jury Instructions in
Criminal Cases consider petitioning the Court to approve a companion jury
instruction as set forth in Appendix M of this report.
(3)

The Commission recommends that the Court refer the Commission’s

suggested amendments to Florida Rule of Criminal Procedure 3.220 to the
Supreme Court Criminal Court Steering Committee or The Florida Bar’s Criminal
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Procedure Rules Committee for review and possible filing of a rule petition with
the Court. A rule amendment would ensure that information regarding the possible
testimony of an informant witness is disclosed to the defense. The proposed rule
amendment is set forth at Appendix G of this report.
(b)

Scientific Evidence
(1)

The Commission recommends that the Criminal Justice Standards and

Training Commission establish a program for crime scene technicians to be
certified by written examination, and further continuing testing be performed, in
order to retain certification.
(2)

The Commission recommends that the Florida Legislature reevaluate

the salaries and staffing of the biology section of the FDLE crime laboratories in
order for FDLE to be more competitive and able to hire and retain trained
personnel.
(3)

The Commission recommends that the Florida Legislature increase

funding for the Florida Department of Law Enforcement DNA laboratories to
increase the DNA profile database and accelerate its full implementation no later
than 2015.
(4)

The Commission recommends that the Florida Legislature provide

more funding to the Florida Department of Law Enforcement for DNA testing as
recommended by the department, as follows:
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 funding to purchase 50 rapid identification devices at a cost of
$3,969 per device for a total of $198,450;
 funding to purchase 21,184 DNA kits used for collection and
other laboratory supplies that are consumed in the analysis
process, in the amount of $593,152;
 funding to purchase 13 AB 3500 Genetic Analyzers at a cost of
$160,000 per instrument for a total of $2,080,000;
 funding purchase 130 licenses for the GeneMapper software at
$8,000 per license for a total of $1,040,000;
 funding of $470,547 for six new crime laboratory analysts
dedicated to handling the additional CODIS workload
generated by arrest-based collections and help to avoid
diverting additional case working analysts to CODIS
administration;
 funding of $784,245 for ten new crime laboratory analyst
positions to keep pace with current demands for service.
(5)

The Commission recommends that the Florida Legislature provide

adequate funding for due process services to the public defenders, the office of
criminal conflict and civil regional counsel, and conflict counsel for the use of
FDLE crime laboratories or certified private laboratories.
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(6)

The Commission recommends that state attorneys notify the Florida

Department of Law Enforcement if a case is dismissed or ends in a plea agreement
so evidence is not unnecessarily tested at the laboratories.
(7)

The Commission recommends that the Florida Judicial College

program annually provide education at the New Judges College on the
admissibility of expert testimony.
(c)

Preservation of Evidence
The Commission recommends that the Florida Legislature continues its

work in evidence preservation for DNA testing under section 925.11 and section
925.12, Florida Statutes (2011), which could lead to the exoneration of innocent
defendants.
(d)

Professional Responsibility
(1)

The Commission recommends that the Florida Legislature fund the

Florida Prosecuting Attorneys Association, the Florida Public Defender
Association, the Department of Legal Affairs, and the office of criminal conflict
and civil regional counsel, to set up a series of on-line training courses that are
available to all government attorneys practicing in the criminal law area.
(2)

The Commission recommends to the Florida Supreme Court that

Florida Rule of Criminal Procedure 3.112 be amended, or a new rule created, to
require that any attorney who is practicing law in a felony case must have
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completed at least a two hour course regarding the law of discovery and Brady
responsibilities.
(3)

The Commission approves a resolution to have the Florida

Prosecuting Attorneys Association and the Florida Public Defender Association
work together to develop a course to meet the two-hour Brady and discovery
training requirement.
(4)

The Commission recommends that the appellate courts consider the

identification of the lawyer who engages in serious misconduct, whether defense or
prosecution, that results in a reversal of a conviction.
(5)

The Commission recommends that The Florida Bar carefully review

the decisions of the trial or appellate courts which result in a reversal because of
attorney misconduct.
(e)

Funding of the Criminal Justice System
(1)

The Commission recognizes the experience and stability of staffing in

the state attorney, public defender, attorney general, and regional conflict counsel
offices, reduce the likelihood of wrongful convictions and increase the likelihood
of effective assistance of counsel.
Therefore, the Commission recommends that the Florida Legislature provide
supplemental funding to pay for student loans by enacting 2006 Senate Bill 362
and 2006 House Bill 81. These bills are attached at Appendix R.
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(2)

The Commission believes that the current funding process for private

court appointed counsel under section 27.5304(1), Florida Statutes, invites
ineffective assistance of counsel and wrongful convictions.
Therefore, the Commission recommends that the Florida Legislature
immediately determine that the funding for private court-appointed counsel be
based on the level of the felony involved and not a flat fee approach.

Respectfully submitted this 25th day of June, 2012.

________________________________
The Honorable Belvin Perry, Jr.
Chief Judge, Ninth Judicial Circuit
Chair, Florida Innocence Commission
425 North Orange Avenue, Room 2010
Orlando, Florida 32801
Florida Bar Number 251445

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