April 25, 2011

Prior False Accusation in Sexual Battery Case May Not Be Admissible at Trial

In Florida, in a lewd or lascivious molestation or battery case, or a sexual battery case, the credibility of the victim's testimony is often the most critical factor in the case. In many of these cases, the victims are children who may be less predictable in the things they say and may not appreciate the importance of telling the complete truth in a legal proceeding. In any case, but particularly in lewd or lascivious molestation or battery cases, the criminal defense lawyer's job is to question the victim to determine the accuracy of the victim's statement incriminating the defendant.

However, the criminal defense lawyer does not have free reign to ask the victim any questions and bring out bad things the victim may have done in the past. One area that would seem to be critical to determine the credibility of the victim would be prior, similar false accusations. For instance, if the victim is saying the defendant in the present case sexually assaulted her, should the criminal defense attorney have the right to inform the jury that the victim made a similar accusation of sexual assault against the defendant's brother two years earlier that proved to be false? It would seem like this would be important information for a jury to know about the victim. However, a recent Florida Supreme Court case said that such information would likely be inadmissible at a trial. The general rule is that the criminal defense lawyer may not bring out evidence about the victim's prior bad acts, including similar but false accusations about another person.

The criminal defense lawyer can attack the credibility of the victim, but he/she is limited in his/her methods. The criminal defense attorney can bring out the fact that the victim has a prior conviction(s) for a felony or a misdemeanor crime that involved dishonesty. For instance, if a person made a similar, false accusation of a sexual assault about someone else and was arrested and convicted for false report of a crime, the criminal defense lawyer would be able to inform the jury that the victim has a prior conviction. However, that is rare when dealing with young victims. The criminal defense lawyer also has the right to bring out any facts that tend to show the victim's testimony is biased or the victim has a motive to be untruthful. Therefore, if the victim has multiple false accusations against other people or one prior, false accusation against this defendant, that evidence should be admissible at the trial to show the victim is biased towards the defendant or has a motive for lying in this context.

March 19, 2011

It is Not Clear What Constitutes the Crime of Child Abuse in Florida

The definition of "child abuse", whether used as a legal term or in regular conversation, is not exactly clear. What passed for good, appropriate discipline in the old days could subject someone to serious felony charges and prison time today. Under Florida law, there are different levels of child abuse and some conduct that is close to child abuse but is not considered a crime at all.

In Florida, a parent, or someone assuming the role of the child's parent, has a right to administer reasonable and non-excessive physical punishment to a child. If the discipline falls into this category, the parent is not guilty of any crime in Florida. So, what does "reasonable and non-excessive" punishment mean? It is hard to say. It may be a decision made first by the prosecutor and then by a judge or jury. When a parent's conduct towards a child goes beyond "reasonable and non-excessive" punishment, it becomes a crime. The first level of criminal activity when a parent physically punishes a child is the misdemeanor crime of contributing to the dependency of a child. This crime is committed by causing an act that causes the child to be dependent or in need of services and subjects a person to up to a year in jail. A "child" is considered anyone under the age of 18. "Services" could certainly include medical services or the Department of Children and Families.

At the next level, physically punishing or abusing a child can constitute the crime of child abuse which is defined as intentionally causing physical or mental injury to the child or doing something that can reasonably be expected to cause physical or mental injury to the child. When this crime is committed without causing serious injury to the child, it is a third degree felony punishable by up to five years in prison. When the crime of child abuse is committed and the child is tortured or seriously injured, it becomes aggravated child abuse which is a first degree felony punishable by up to thirty years in prison.

There is obviously a huge difference between the misdemeanor crime and the two felony child abuse crimes. However, it is not clear what conduct differentiates the three crimes or what may not be a crime at all. Should the trier of fact focus more on the conduct or the results? What if the child is injured badly, but the conduct was fairly harmless, i.e. where the parent pushes the child but the child trips and hits her head on something and has a serious head injury? What if the conduct seems bad, but the child is not injured at all?

There are a few issues with the crime of child abuse in Florida. First, conduct that used to be considered acceptable can be a serious, although ambiguous, crime today. Second, it is very difficult to tell from reading the various laws what is acceptable punishment versus a low level crime versus a very serious crime with the potential for a lengthy prison sentence.