Mr. Hornsby,
I am very confused about the first motion heard this morning concerning Dominic Casey. Can you explain in layman's terms the difference between a deposition and an investigative hearing?
It is my understanding that Baez cannot attend an investigative hearing (if SA serves subpoena), but if Baez places DC on the defense witness list, he will be able to attend??
I am not sure I understand how either scenario will play out?
Thanks
Actually, you have it 100% correct. Even while a criminal prosecution is pending, the State Attorney is free to continue to "investigate" the case just like the defense is.
However, while a defendant cannot compel a "potential" witness to talk to them, the state can. So if the state knows of a "potential" witness, and that witness does not want to voluntarily cooperate, the state can issue an "investigative" subpoena.
If the witness appears pursuant to the investigative subpoena, but knows nothing; the state is not required to list the person as a potential witness. However, if they end up knowing something, then they are required to list the person as a potential witness.
At this point under Florida Rule of Criminal Procedure, the defense is then entitled to question the witness. If the person does not want to "voluntarily cooperate" with the defense, then the defense can subpoena the person for deposition. Because a deposition by definition is an interview by compulsion of court order (subpoena). However, the State has the right to attend the deposition - whereas the defense did not for the investigative subpoena.
On the flip side, if a defendant lists a witness, the State can issue a deposition subpoena, but not an investigative subpoena. The logic being that if the state could subpoena witnesses listed by the defense without the defense present, the State could threaten or intimidate the witness into changing their story - thus the right for the defense to be present.
So if Baez wanted to guaranty his right to be present, he would only need to list DC as a potential witness.