Differences Between State and Federal Courts Part 2: The Discovery Process and Disclosure of Witnesses

Barry M. Wax

See Part 1: Can I Be Tried for the Same Crime in Both State and Federal Court?

In court cases in both state and federal court, “discovery” is a crucial component of fashioning a defense. At the beginning stages of a case, discovery requires the prosecution to disclose its evidence and the witnesses who possess information about the case. From the perspective of the defense, it will be used to determine what defenses to the charges are available and whether it is in the client’s best interests to proceed to trial or negotiate a resolution by way of a plea bargain. However, there are key differences between discovery at the state and federal levels, especially as they apply to witnesses.

Witness Disclosure and Interviews

The State and Federal Rules of Criminal Procedure govern the conduct of the discovery process. However, they differ significantly, especially when it comes to disclosure and interviewing witnesses. In Florida state court, the parties are required to disclose the names and addresses of their witnesses. Once the witnesses are revealed, depositions may be taken. A deposition is a sworn statement, under oath, which allows defense counsel to question the witness and learn exactly what information they possess. It is a very significant tool in preparing a defense, as it provides both a preview of the witness’ potential trial testimony and also locks them into their version of events so they cannot change their testimony at trial.

Contrastingly, in federal court, the parties are not required to disclose their witnesses prior to trial, and the rules of discovery do not permit witness depositions to be taken (except in rare circumstances). While attorneys and investigators are permitted to contact a potential witness, the witness is under no obligation to speak with them. Often, the first time a witness’ testimony is heard is in the courtroom. This gives the prosecution a significant advantage because they know what the witness has to say before they take the witness stand, while the defense’s knowledge is limited. That does not mean that defense counsel doesn’t know who the witnesses are or what their testimony will be. Through pretrial investigation, motion practice, and research, an experienced defense attorney will also know the scope of the witness’ testimony and be able to prepare an effective cross-examination.

The knowledge of the content of a witness’ testimony in both state and federal courts is a significant factor in pretrial and trial decisions. Damaging witness testimony revealed during discovery may result in a decision to engage in plea negotiations instead of going to trial. Conversely, favorable witness testimony can result in a dismissal of the charges, or a lenient resolution of the case.


In Florida state court, discovery rules are very liberal, and EVERY piece of evidence to be used by the prosecution and defense must be disclosed during the discovery process. Any new evidence revealed after discovery is closed must be disclosed, and the judge will rule whether or not this evidence is admissible.

In federal court, most of the evidence that will be used in the courtroom is disclosed in discovery, but there may be a significant amount that is not revealed until trial commences, or even during trial.

Having a defense attorney who understands the rules of discovery and knows how to properly use them to prepare a defense is crucial to the outcome of a criminal case. Attorney Barry M. Wax has decades of experience in both jurisdictions and gives people in trouble the ability to make the right choices to regain control of their lives. Contact us today.

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