Criminal Defense
Since 1993
Since 1993
Why “Getting It In Writing” Can Be a Trap in Criminal Defense
By: John Guidry
I know we lawyers are always saying, “Get It In Writing.” Sometimes, this can be a bad thing. Especially in a criminal case involving scientific evidence, we defense attorneys do not always want a paper trail.
In the State of Florida, a defendant can elect to “participate in discovery.” This means the defense demands the prosecutor hand over everything: police reports, witness lists, photos, videos, lab results—the works.
The Catch: Discovery is a two-way street. Once the defense asks for discovery, they must turn over almost every document they have as well. This reciprocal obligation is especially strict regarding experts.
Thinking about hiring an expert for your case?
Consult with an attorney before generating a paper trail. Call John today at (407) 423-1117.
The 1% Strategy: Opting Out of Discovery
In my experience, 99% of Florida criminal defense attorneys participate in discovery. However, about 1% opt out entirely.
- The Benefit: By not participating, the defense attorney is not obligated to list their witnesses or experts for the State. This preserves the element of surprise.
- The Trade-off: The defense cannot depose state witnesses and has to rely on public records requests to get information. It is a high-risk, high-reward strategy.
The Expert Trap: Kidder v. State
For the 99% who do participate in discovery, there is a dangerous grey area regarding expert reports.
In the case of Kidder v. State (Fla. 2nd DCA, 2013), Ms. Kidder was charged with DUI manslaughter. Her blood alcohol level was allegedly 0.196%. Distrusting the government lab (a smart move given the history of lab scandals), she hired her own expert to re-test the blood.
- The Mistake: She got the results in writing.
- The Ruling: Because she participated in discovery, the court ordered her to turn over that written report to the State, even though it wasn’t helpful to her defense.
The “Phone Call” Rule
Because of rulings like Kidder, experienced defense attorneys follow a specific protocol with experts:
- Two Prices: We ask for one price for a phone consultation and a separate (higher) price for a written report.
- Verbal First: We discuss the findings over the phone before anything is written down.
- If the news is bad (“Trust me, you don’t want this in writing”), we stop there. No report exists, so nothing has to be turned over.
- If the news is good, we pay for the report and list the expert for trial.
The court in Kidder suggested this practice is just “evading” discovery rules. I disagree. It saves money (written reports are expensive) and protects the client from having their own research used against them.
John’s Takeaways
- Be Careful What You Create: In criminal defense, a document once created often becomes evidence for the other side.
- The System is Flawed: The appellate court admitted that forcing the defense to turn over reports they don’t intend to use at trial is bad policy, but they enforced it anyway.
- Trust Experience: You need an attorney who knows when to ask for a report and when to just pick up the phone.
Call me at (407) 423-1117. Let’s build your defense strategically.
About John Guidry II
John Guidry II is a seasoned criminal defense attorney and founder of the Law Firm of John P. Guidry II, P.A., located in downtown Orlando next to the Orange County Courthouse, where he has practiced for over 30 years. With more than three decades of experience defending clients throughout Central Florida since 1993, Guidry has successfully defended thousands of cases in Orange, Seminole, Osceola, Brevard, Lake, and Volusia counties. He has built a reputation for his strategic approach to criminal defense, focusing on pretrial motions and case dismissals rather than jury trials.
Guidry earned both his Juris Doctorate and Master of Business Administration from St. Louis University in 1993. He is a member of the Florida Bar and the Florida Association of Criminal Defense Lawyers. His practice encompasses the full spectrum of Florida state criminal charges, with a particular emphasis on achieving favorable outcomes through thorough pretrial preparation and motion practice.
Beyond the courtroom, Guidry is a prolific legal educator who has authored over 400 articles on criminal defense topics. He shares his legal expertise through his popular YouTube channel, Instagram, and TikTok accounts, where he has built a substantial following of people eager to learn about the law. His educational content breaks down complex legal concepts into accessible information for the general public.
When not practicing law, Guidry enjoys tennis and pickleball, and loves to travel. Drawing from his background as a former recording studio owner and music video producer in the Orlando area, he brings a creative perspective to his legal practice and continues to apply his passion for video production to his educational content.