Pretrial Witness Quizzing is Under Fire Taking Statements is Harassing, Causes Court Delays, Dempsey Says

By Al Truesdell | Sentinel Staff Writer
Posted December 12, 1987

Attorneys are using their right to question possible witnesses in criminal cases before trial to harass victims and delay court proceedings, Florida Department of Law Enforcement Commissioner Robert Dempsey said.

Dempsey is asking state officials to abolish a rule that gives attorneys in Florida the authority to obtain sworn statements from potential witnesses before trial.

" It is making a mockery out of justice in our state," said Dempsey, an attorney.

Defense attorneys, however, say that Florida has taken extraordinary steps to protect the rights of the accused and to give attorneys the opportunity to arrive at the truth in criminal cases.

Dempsey's idea would be a step backward, said Orlando attorney Mark NeJame. Any system has a potential for abuse, he said, but the solution should not be to take away the constitutional rights of thousands of people.

Dempsey said the rule allowing depositions can be repealed by the Florida Supreme Court or by a two-thirds vote of the Legislature.

The process, he said, is time-consuming for police officers, who must spend hours or days giving statements to attorneys.

The pretrial procedure is costing Florida taxpayers millions of dollars in time spent by prosecutors, public defenders, police and other court personnel. In a 31-page report compiled by the FDLE, Dempsey estimated court officials spent 1.6 million hours in depositions, a practice that cost taxpayers more than $37 million last year.

The procedure, he said, has been used as a ploy to delay justice. Time is the ally of the defendant because it increases the likelihood that witnesses will disappear or their memories will dim.

However, Orlando attorney William Sheaffer said prosecutors and police spend a small amount of time at depositions, which often are conducted only by defense lawyers.

He said the procedure speeds the resolution of cases. Witness statements allow defense lawyers a chance to assess the strength of the state's case and often persuade them to enter a plea instead of going to trial.

Florida is one of seven states that allow attorneys to question as many witnesses as they choose before the start of a trial. The witnesses are questioned again during the trial by defense attorneys, who often try to discredit them by pointing out differences between the depositions and trial statements.

Dempsey said the system used in Florida is too liberal toward the accused criminal and does not go far enough in protecting crime victims and other witnesses.

He proposed that Florida adopt the system used by the federal government, which allows a defendant access to documents that will be used against him, but does not allow attorneys to question the witnesses before trial except in unusual circumstances.

" There are adequate procedures to protect the rights of criminal defendants," Dempsey said.

Source: Orlando Sentinel