Jacksonville Criminal Lawyer Blog

A couple from Fleming Island in Clay County, Florida was arrested for allegedly throwing a party with underaged kids and alcohol according to an article on Firstcoastnews.com. According to law enforcement, the Clay County couple threw a graduation party at their home at which underaged kids were drinking. Pictures of the party and the kids drinking were apparently posted on Facebook which helped lead to the arrests.

As litigation lawyers who handle all types of litigation cases including criminal defense, personal injury/wrongful death and business litigation, we have seen how people can get themselves into trouble by divulging information over the internet that is later used against them. People need to understand that an emails, a text messages and anything posted on a website are not private. If another person can access it, that can later be used against the person by police and in court by the other party. Whether it is a picture of a plaintiff in a personal injury case engaging in some activity that his/her injuries were supposed to preclude or a statement that incriminates the defendant in a criminal case, any such thing sent out over the internet can become critical evidence.

The best course of action is to consider whether you would want a police officer, an employer, a prosecutor, a judge or any other person(s) to see the information before sending it in an email or text or posting it on a website.

Quite often, a major part of the state's case is a statement or a confession from the defendant either admitting the crime or admitting to certain damaging facts that reflect negatively upon the defendant at the criminal trial. However, in Florida, a defendant's confession that was lawfully obtained is not always admissible to prove the state's case.

In a criminal case in Florida, the state cannot admit a defendant's statement or confession until the state has presented other proof that a crime was committed. Because of this rule, a defendant can never be convicted of a crime based on his/her statement alone. A defendant's statement can certainly be used against a defendant to prove the state's case, however the state must present evidence independent of the defendant's statement first before seeking to admit the defendant's statement into evidence. If the state does not have sufficient independent evidence to establish that a crime occurred, the defendant's statement will not come into evidence and the criminal case will likely be dismissed.

In Florida, many drug cases begin when a confidential informant, or CI, provides information to the police about another person using, selling, trafficking or manufacturing illegal drugs. This often occurs after the confidential informant is arrested on his/her own charges and wants to make a deal with the police or the state to reduce his charges or sentence. The CI will provide information to the state, or perhaps work for the state by making a controlled drug buy, allowing the state to make a case against someone else.

When a confidential informant gives information to the police or the state that they use to get a search warrant, search a house for illegal drugs and then arrest one of the residents of that house, that other person will have a pending criminal drug case. Normally, during that trial, that defendant will have a right to see all of the evidence and learn of all of the witnesses that the state believes proves his/her guilt and that the defendant needs to prepare his/her defense.

Can the defendant's criminal defense lawyer force the state to disclose the identity of the CI? It depends. While the state is obligated to give the criminal defense attorney all of the relevant evidence in the case, the state does have a limited right to withhold the identity of confidential informants in some situations. The purpose of this rule is to protect and encourage people who provide information about criminal activity to the police. However, a criminal defendant has a Constitutional right to know of any and all information that helps the defendant defend him/herself against criminal charges.

Those two principles are balanced out in Florida law by requiring the state to disclose the identity of a confidential informant in two situations. First, if the state plans to have the CI testify against the defendant in a trial or pretrial hearing, the state must alert the criminal defense lawyer and disclose the identity of the CI so the criminal defense attorney has the chance to talk to the CI and see what he/she has to say. Second, the state has to tell the criminal defense attorney about the CI if failure to disclose the CI would infringe on the defendant's Constitutional rights. In other words, if the criminal defense lawyer can show that the CI is necessary for the defendant to advance a particular defense in the case, the state will likely have to disclose the identity of the confidential informant so the criminal defense attorney can adequately prepare that defense for the defendant. To conceal the identity of the CI when the defendant needs to know about him/her to defend him/herself would violate the defendant's Constitution right to confront witnesses against him/her and the right to a fair trial.

If you are stopped for a DUI (aka driving under the influence of alcohol or drugs, DWI or drunk driving) and the officer has detained you for a DUI investigation, arrested you or read the Miranda warnings to you, you have a right to remain silent and not answer questions. Keep in mind that once the police officer has it in his/her mind that you may be impaired by alcohol or drugs, everything he/she does from that point on is to gather evidence to be used against you in a DUI case.

After a traffic stop where the police officer suspects you of driving under the influence of alcohol, he/she will ask you questions about where you have been, whether you have been drinking, and if so, how much. These questions are obviously designed to collect evidence to arrest you and charge you with DUI. The officer will also ask you to submit to field sobriety tests or exams. These are very difficult balancing exercises that are hard to perform under any circumstances. More importantly, whether or not you pass or fail is a completely subjective decision made by a police officer who obviously already thinks you are impaired or he/she would not have asked you to do them in the first place.

As criminal defense lawyers in the Jacksonville, Florida area who handle a lot of DUI cases, we read a lot of police reports where a person has made statements that help the police and the state prosecute them for DUI. When the U.S. Constitution affords you the right to remain silent and not incriminate yourself, consider why you would want to make a statement to the police in such a situation that is only going to be used against you in a criminal case.

What happens in a criminal case in Florida when a witness, who may have information that incriminates him/herself, is called to testify at a deposition? Most people are familiar with the Fifth Amendment of the U.S. Constitution which says that a person has a right not to incriminate him/herself. This means that a person can not be forced to make statements to the police or prosecutors that could be used against him/her in a criminal case. But there are times in Florida where the state will subpoena a person for a sworn statement or deposition and ask that person for information that could implicate the person in a crime. Does that person have to answer those questions?

The person may have to answer questions and provide information that would be incriminating, but the information cannot be used against the person in a criminal case. A person who is subpoenaed to testify will be given what is called use and derivative use immunity. This means that the state cannot use the statements provided by the witness or any information derived by those statements against the witness in a criminal case. For instance, suppose the witness said that he drove the defendant to a particular hotel after the robbery and hid the gun in room 100. The state could not use that statement against the witness in a prosecution against the witness as an accessory to the robbery crime. Additionally, the state could not go to the hotel and get the registration form signed by the witness for room 100 and use that against the witness if the only way they learned of this information was through the witness's statement. However, if the state was aware of the information about the hotel from another independent source, they could still use that information against the witness based on that other source.

Most people understand that when they have a private conversations with their lawyers about an existing or potential case, whether criminal or civil, those conversations are supposed to remain confidential. This is referred to as the attorney-client privilege, and it means that no one can compel the attorney or the client to disclose what was discussed between them.

However, in the context of a pending case or investigation involving a corporation and its executives or employees, it may not be clear who exactly the attorney represents. For instance, in a recent federal criminal case, the government was investigating a company and its chief financial officer for conspiracy and securities fraud. The company hired a lawyer to assist with an internal investigation and an audit. That lawyer interviewed the CFO who gave that lawyer important information critical to his own case. The CFO believed that the lawyer was his lawyer and all communication between the two was confidential and private. This particular attorney had even represented the CFO in the past in civil cases, which further led the CFO to believe that he was having confidential discussions with his personal lawyer.

Subsequent to those conversations with the CFO, the lawyer disclosed information from those conversations to other lawyers and accountants assisting in the internal investigation of the company and ultimately to the government. The government then intended to use that information against the CFO.

The CFO then hired his own criminal defense attorney. He argued that none of the information obtained by the government by the initial lawyer should be used against the CFO. To do so would violate the attorney-client privilege. However, the government argued that the CFO should have known that the information he provided to the lawyer would be shared with the accountants, auditors and others as part of the company's internal investigation. As a result, the CFO should have known that the lawyer was not his personal lawyer but a lawyer whose client was the company. And if the attorney's client was the company rather than the CFO personally, information provided by the CFO could be shared with others related to the company.

This issue has not been finally decided, and it may depend on what exactly the attorney told the CFO prior to their discussions regarding exactly whom the lawyer represented and what would be done with the information. In any case, where a company and an executive or employee of the company are facing criminal charges or an investigation, it is important to know the exact nature of the relationship with the attorney and what he/she intends to do with the information before making any statements. If the attorney-client relationship is later determined not to exist because the client is the company and not the individual, then any statements made to the attorney may be used against the individual.

We see countless criminal cases in the Jacksonville, Florida area where regular people or suspects talk and answer questions when police come to investigate a crime, and the result is the person talks him/herself into getting arrested and/or gives the police officer the evidence he/she needs (and did not have) to make a strong criminal case against the person.

The Fifth Amendment to the U.S. Constitution guarantees you the right to remain silent and not answer a question from a police officer when that answer may incriminate you. For example, consider a situation where a vehicle with four occupants gets pulled over, and the officer finds a bag of marijuana or cocaine in the center console area. The bag of illegal drugs is within arm's reach of each of the four occupants. The police officer takes all four people out of the car and asks questions to find to whom the drugs belong. What should the four occupants do?

The police officer wants at least one person to take ownership of the drugs so a valid arrest can be made. Keep in mind that the police officer is going to say various things, from promises to threats, to make the people think they should, or have to, answer his/her questions. The police officer may say that he'll arrest everyone and take them all to jail unless someone claims the drugs. The police officer may promise that the person who claims responsibility will get a better deal or a slap on the wrist if he/she claims the drugs. The police officer may say anything, but his/her purpose is clearly to get a statement from someone so he/she can make an arrest and make it stick.

The four occupants do not have to say anything. The four occupants should not say anything. The officer may then get upset and arrest everyone. However, in this scenario, which is very common, this case will either get dropped by the prosecutor or can be beaten at trial because without an incriminating statement, there may be no way for the state to prove who in the vehicle owned or possessed the drugs. If the state cannot prove that, they cannot prove their case.

This happens often in the context of a DUI (driving under the influence of alcohol or drugs) case as well. If a police officer pulls you over and suspects that you have been drinking, he/she will likely ask you if you have been drinking, how much and where you have been. Why would you answer those questions if the answers will only serve to incriminate you? You can politely request to speak to a criminal defense lawyer and leave it at that.

The right to remain silent is one of the most important rights provided in the Constitution. Unfortunately, so many people being investigated for drug crimes and other criminal activity fail to exercise this right. When the police officer starts asking questions and makes threats or promises, although the police officer clearly just wants to make an arrest, for some reason people start talking and bury themselves. The Fifth Amendment guarantees that you do not have to do that.

If you have any questions about a police investigation into criminal activity and what your rights are, feel free to contact us for a free consultation. Even if you are the middle of a police encounter, you have a right to get on your cell phone or home phone and contact an attorney and ask questions, which may be a good option for you rather than say something that will be used against you in court at a later date.

Criminal defense lawyers do not often assert the entrapment defense in criminal cases, particularly drug cases, because it does not apply in most cases. However, there are cases where the entrapment defense is a valid defense when a person is charged with a drug crime in Florida.

For instance, in a recent case, a defendant was charged with trafficking in cocaine after he set up a drug deal between a cocaine supplier and a buyer who turned out to be a confidential informant (CI) for the police. His criminal defense lawyer argued that the defendant was entrapped into committing the trafficking crime. The defendant testified that he was addicted to cocaine and also used other illegal drugs, such as marijuana and heroin. He could not afford his drug habit and needed a way to make some money. The CI approached him and asked him if he could arrange a deal for a large amount of cocaine. Several times, the defendant told the CI that he was not interested. However, the CI persisted and finally offered the defendant some of the cocaine if he would arrange the drug deal. The defendant agreed and was arrested by police for trafficking in cocaine right before the deal was done.

The standard for entrapment in Florida is as follows: it is not entrapment when the police intend to disrupt ongoing criminal activity and use reasonable means to do so. Alternatively, if the police are going out of their way to take advantage of someone who is not otherwise involved in drug trafficking or a related drug crime, and they use unreasonable methods to do it, the defense of entrapment can work. However, if the state can show that the defendant is predisposed to commit the drug crime, i.e. he/she has sold or been involved with illegal drugs before or was familiar with how drug deals work and the terminology, the entrapment defense is problematic, unless the defendant can show that the police's conduct was particularly outrageous.

Criminal defense lawyers do not often use the entrapment defense in drug cases. However, the law does allow it, and there are circumstances where it may be applicable. If it is successful, the drug charges will be dismissed.

It is not uncommon for a person to be arrested for driving under the influence of alcohol or drugs (also commonly referred to as DUI, DWI or drunk driving) and driving with a suspended or revoked license, or DWLS, in Florida. Under those circumstances the prosecutor will file at least two charges in the information, one for DUI and the other for DWLS. If the defendant decides to take the case to trial, those two charges should be separated, or severed. In other words, the jury that hears the evidence related to the DUI charge should not hear the evidence and decide the case related to the driving with a suspended license charge. A different jury at a new trial should decide the second charge.

The reason these charges should be severed is because the evidence pertaining the driver's alleged suspended license, such as his driving history, is unrelated to the evidence related to the DUI, and vice versa. This relates to the idea that unduly prejudicial evidence should not be admissible in court. It is prejudicial for the state to present evidence of the defendant's driving history and suspended license in his/her DUI trial because that evidence has nothing to do with the DUI and only paints the defendant in a bad light with irrelevant evidence. Likewise, when a jury is deciding whether the defendant was driving with a suspended license, it is prejudicial for the state to present evidence of the defendant's intoxication because that is irrelevant to the DWLS charge.

Where a defendant has been charged with driving under the influence of alcohol or drugs and driving with a suspended or revoked license in the same case, it is important for the criminal defense lawyer to file a motion to sever those charges so the state is not permitted to admit unnecessary and prejudicial evidence against the defendant at the trial. The jury should only hear the specific evidence relevant to the particular charge.

As a criminal defense law firm practicing in the Jacksonville, Florida area, we get this question quite often. Sometimes, a person pleads guilty or no contest to a crime in Jacksonville the morning after the arrest without really knowing the consequences of the guilty or no contest plea, without really understanding the nature of the charges and evidence against him/her and without any meaningful discussion with a criminal defense attorney. Later, they may contact us and ask if there is a way to withdraw or reverse the guilty or no contest plea to the criminal charge.

There often is a way for a person who plead guilty or no contest to reverse or withdraw the plea. This is especially true for those people who plead guilty or no contest at their first appearance hearing the next day. In Jacksonville, Florida, the first appearance hearing takes place at J1, which is a courtroom attached to the jail. When a person gets arrested in Jacksonville, Florida, he/she will go in front of the judge the next morning or afternoon in J1. Many people plead guilty or no contest to their criminal charges in J1 on their own and later want to reconsider that decision or at least confer with a criminal defense attorney to find out if the guilty or no contest plea was the right thing to do.

In order for a plea of guilty or no contest to a charge to be legal and valid, the defendant must enter the plea voluntarily, knowingly and intelligently. At the first appearance hearing the next day, the defendant does not really have an opportunity to thoroughly go over the case, the charges, the evidence and the ramifications of the sentence with a criminal defense lawyer. The judge is supposed to ask each defendant who is pleading guilty about his/her age, education, mental and physical conditions and prior experience with the criminal justice systems. The purpose of these questions is to get some assurance that the defendant who is pleading guilty without having spoken to a criminal defense lawyer knows what he/she is doing and what effects that decision may have. If those questions are not asked of the defendant when he/she pleads guilty or no contest to a criminal charge, the plea may not be valid. In that case, the defendant may be able to file a motion to withdraw the plea and have a chance to fight the charges.

If you have been arrested for a crime in the Jacksonville, Florida area, entered a plea of guilty or no contest and think you entered the plea without all of the necessary information and advice of a criminal defense attorney, feel free to contact us for a free consultation and we can discuss your case and whether you are able to withdraw your plea and fight the charges.

Senator Jim Webb of Virginia published a short article on The Charlottesville Center for peace and Justice website about problems with the criminal justice system and some suggested reforms. He highlights some pretty disturbing figures which make it difficult to argue that the criminal justice system is functioning fairly and smoothly. In his article, he cites the following: 1 out of every 31 adults in the United States is either incarcerated or on parole or probation and the number of incarcerated drug offenders has increased by 1200% since 1980. Most of the people in the U.S. are incarcerated for non-violent offenses.

When we consider the level of violence that pervades cities in the United States, including Jacksonville, Florida, one obvious implication is that criminal justice resources are not being allocated towards violent offenders to the extent they should be. Something is clearly wrong when the jails and prisons are full on drug and other nonviolent offenders at an increasing rate, yet violent crimes are more and more prevalent. Senator Webb points to reforms which would direct law enforcement attention more towards violent offenders while also developing rehabilitory strategies for drug and other nonvioolent offenders who can use the help to get back on their feet once through the criminal justice system.

A times, people contact Shorstein & Lasnetski, LLC to offer to submit a post or article for our Jacksonville Criminal Lawyer Blog. The following article was submitted by Kimberly Peterson who writes about online criminal justice degrees. She invites you to send your feedback to her at KimPeterson2006@gmail.com.

The establishment of juvenile courts was founded upon the belief that minors are unaware of their original intent in committing a crime. A five-year old who has committed a robbery or has stabbed someone does not yet have the moral capacity to understand that what he/she has done is not only ethically wrong, but also against the law. The ethics of children hardens by the time they are 18, although many states have deemed it necessary to try juveniles convicted of capital murder in adult courts, thereby exposing them to sentences in adult prisons. With the prison system the way it is, we are simply sending these children to a breeding ground of crime where they will be exposed to atrocities which they would otherwise have avoided in a juvenile detention center.

Juvenile centers were put into place in order to dissuade courts from sending minors to prison facilities, but also to keep an eye on offenders in an attempt to rehabilitate them before they reach the age of 18. The use of these centers is essential to swaying many teens from a life of crime, with over half of the teens admitted never returning to court. The goal is to get this number up closer to 100 percent. Many states have concluded that trying children in adult courts is more effective to deter them from returning to these courtrooms later in life; however, it has also been proven that by sending them to adult detention centers, this may only increase their odds of becoming a repeat criminal offender. The political decision in the mid-1990’s to combat what many thought was a rise in juvenile crime has turned out to be counter-productive and has instead led to an influx of adult prisoners who were sent to adult centers as minors.

This was a quick fix of a deeper problem which politicians did not delve into at the time. It has now become necessary to develop a more comprehensive method that involves more rehabilitation and counseling, rather than the growth of criminal masterminds. Children have no place in an adult courtroom, regardless of the gravity of their crimes. This may be a bold statement when compared to extreme cases such as the two boys at Columbine, but Progressive Era reformists believed it to be true, amidst evidence of other types of child-killers.

Revamping the juvenile systems in the U.S. is one of the first steps toward securing a better future for children who commit crimes. Placing kids who have frequently been late or absent from school with kids who have violently attacked someone is never a good blend, and can only lead to increased amounts of crime from both groups. The system needs to be reconditioned so that kids who have minor offenses are properly punished and kept away from the influence of kids who commit violent crimes; the kids who have committed minor offenses should have a separate system in which to receive rehabilitation and counseling. Juvenile centers have increasingly become structured to resemble prisons, but feature many other amenities and programs which help kids address issues that may have driven them to commit certain crimes. It is up to politicians to determine what can be amended to juvenile centers to make them more efficient towards both deterring future criminals and not producing new ones, without forcing minors to be sent to state prisons around the country.

In Florida, a person who has been arrested for a crime of violence, such as aggravated assault, cannot be prosecuted for that crime if he/she was justified in using force, i.e. committed the act in self-defense. In other words, Florida law provides that a person can use force against another person if he/she reasonably believes such force is necessary to defend him/herself against another's imminent use of force. A person can use deadly force if he/she reasonably believes that deadly force is necessary to prevent imminent death or great bodily harm to him/herself or another or to prevent the imminent commission of a forcible felony. (There are additional laws regarding use of deadly force in one's home which can be found here.) A person does not have to wait for the other person to use force or commit the forcible felony. If it reasonably appears that the other person is about to use force or commit a forcible felony, a person can preemptively use force to prevent the attack or forcible felony.

How exactly does this defense play out when a person is charged with a violent crime when that person believes he/she had a right to use the force that he/she used? In Jacksonville, Florida and other locations in the First District, the criminal procedure allows a defendant to file a motion to have the judge dismiss the charges against him/her. That motion, which is filed by the criminal defense attorney, does not technically characterize the defendant's justifiable use of force as a defense to the charges. The criminal defense lawyer's motion will properly indicate that his/her client's use of force renders the defendant immune from prosecution on the charges. Because the justifiable use of force defense is an assertion of immunity rather than what is referred to as an affirmative defense, the motion is made prior to the trial, and the judge will weigh the relevant evidence to determine if the defendant was justified in using such force. The defendant has the burden of proof, but the standard is by a preponderance of the evidence (i.e. greater than 50%) rather than the typical beyond a reasonable doubt standard the State has in a criminal case.

The judge cannot refuse to grant the defendant's motion to dismiss the charge(s) based on justifiable use of force on the basis that the evidence on each side conflicts. The judge is supposed to weigh the evidence and grant the defense motion to dismiss if the defense establishes the force used by the defendant was justified by a preponderance of the evidence. If the judge makes such a determination, the judge must then dismiss the charge(s) against the defendant without the case ever going to a trial before a jury.

A Georgia Bureau of Investigation (GBI) firearms examiner who routinely testified for the State in gun cases resigned from the GBI after it was learned that she gave false testimony in numerous cases, according to an article on AJC.com. The article indicates that the GBI firearms examiner mischaracterized in her sworn testimony the number of times she tested the guns about which she testified. This, of course, calls into question the reliability of her testimony in trials and her integrity as a firearms expert.

In a variety of criminal cases involving firearms, the State may elect to have an expert testify about the gun that was allegedly used by the defendant. In Florida, this person may be a firearms examiner from the Florida Department of Law Enforcement. In Georgia, it is often a firearms examiner from the GBI. The State will put on the examiner and ask questions about his/her education, training and experience with firearms generally, and the specific firearm(s) in question, as well as the number of times that person has testified as an expert in similar trials. All of this questioning is done to show the judge and the jury that the witness is an expert in firearms or the particular area about which he/she will be testifying. If the judge is satisfied that the witness has sufficient expertise in that area, the judge will officially qualify the witness as an expert and instruct the jury accordingly.

Juries in criminal (and other) cases often put extra emphasis on a witness's testimony after the judge has proclaimed that he/she is qualified to testify as an expert. If that "expert" witness's testimony later turns out to be flawed, it calls into question the legitimacy of any conviction in any trial in which that witness testified. Even if the problem with the testimony did not necessarily relate to material evidence affecting the defendant's guilt, when a witness the State and the judge indicate to a jury is an expert witness is found to have lied about his/her expertise or testing methods, it raises serious doubts about the integrity of the criminal justice system that needs to be closely examined. Convictions in trials where this witness testified may need to be challenged.

When the police in Jacksonville, Florida and other cities throughout the country find what they suspect to be illegal drugs, whether it is marijuana, cocaine, GHB or the many other narcotics, they will often use what is referred to as a field test kit to quickly test whether the substance is the drug they think it is. These tests are called field tests because they can be performed "out in the field" presumably allowing the police officer to determine whether a substance is an illegal drug without having to bring the substance back to the lab. When field tests results are positive, the police use those results as a basis for further searches and seizures, arrests and as evidence in a criminal case to obtain a conviction.

The problem is that these field tests are significantly flawed according to many articles and studies. A recent report issued by a forensic expert and a former scientist for the FBI found that the field tests commonly used by police give false positives more often than not when testing non-narcotic substances. For instance, they administered the field tests on non-marijuana substances, such as oregano, and found that the field tests resulted in false positives approximately 70% of the time. The field tests were similarly inaccurate when testing non-cocaine substances.

Police use field tests for a variety of purposes, i.e. to obtain search warrants, to search vehicles and homes, to seize evidence, to charge people with drug crimes and as evidence in a criminal trial. The United States Supreme Court has prohibited the use of inaccurate tests to prosecute someone for a drug crime, or any other crime, for that matter. These reports call into question the Constitutionality of using drug field test kit results against any defendant charged with a drug crime in a criminal case.

If you have been arrested and charged with a crime in Jacksonville, Duval County, Florida and entered a plea of guilty or no contest to the charge, there may be a way to withdraw that plea and proceed with your defense to the criminal charge. After a defendant in a criminal case has been sentenced for the crime, the judge must let the defendant withdraw the plea if there is good cause, and the judge has discretion to allow a defendant to withdraw the plea if good cause cannot be shown

If a criminal defendant has already been sentenced for the crime, he/she still may be allowed to withdraw the guilty or no contest plea. After the sentence has been entered, the defendant must show that the plea resulted in a "manifest injustice" and that the defendant would not have entered the guilty or no contest plea absent the manifest injustice. In order for a plea of guilty or no contest to a criminal charge to be valid, the defendant must enter the plea freely, voluntarily, knowingly and intelligently. If some fact or circumstance prevented the defendant from entering such a plea, he/she may have right to withdraw that plea. Examples of valid reasons to withdraw a plea after sentencing include: the plea was not voluntary, the plea violated a plea agreement with the prosecutor or there was a legal error with the sentence.

Another circumstance where a defendant who pleads guilty or no contest to a criminal charge may be able to withdraw that plea is where he/she was not fully advised of his/her rights and defenses by the criminal defense lawyer. For instance, where the facts of the criminal case suggest that the defendant had a valid defense such as self-defense or duress and the defendant entered a guilty plea without knowing that he/she had a right to assert that defense, that defendant may be able to withdraw the plea even after he/she has been sentenced. It may be a manifest injustice for that defendant to plead guilty to a crime when he/she had a legitimate defense that would have exonerated the defendant.

If you have been charged with a crime in the Jacksonville, Florida or South Georgia area, it is important to contact a law firm whose lawyers understand the various issues involved in a criminal case. If you have plead guilty or no contest to a criminal charge and think that you were not fully advised of your rights and defenses, feel free to contact us to discuss your potential right to withdraw your plea.

Most people are familiar with Miranda warnings which warn a suspect that, among other things, he/she has a right to remain silent and a right to an attorney before the police ask him/her questions about suspected criminal activity. If the police are required to give those Miranda warnings and do not and then ask questions of a suspect, the suspect's answers will likely be inadmissible at the criminal trial. However, it is not always clear when the police are required to give Miranda warnings. For instance, are the police required to give the Miranda warnings to a suspect during a routine traffic stop before the officer asks the suspect questions about a possible crime? It depends on the circumstances.

For instance, consider a situation that occurred near Jacksonville, Florida that involved two people racing their vehicles, which is a misdemeanor crime in Florida. A police officer observed the race and pulled both vehicles over. He questioned both drivers, and they both admitted to racing. Both drivers were then given notices to appear in court to answer to criminal charges for racing. The police officer did not give the Miranda warnings to the drivers before asking them questions about the suspected racing crime.

The criminal defense lawyers tried to have those statements thrown out of court because the defendants were not given their Miranda warnings before being asked about the racing. The criminal defense lawyers were not successful. Whether a police officer needs to give Miranda warnings before asking investigative questions of a suspect depends on the nature of the encounter between the police officer and suspect. If it reasonably appears to the suspect that he/she is in custody or is under such pressure that his/her right to remain silent seems compromised, the police officer must give Miranda warnings before questioning the suspect about a crime. However, this is a fairly gray area. Some of the factors that determine whether a suspect is "in custody" are: the length of time of the questioning, the number of police officers involved in the encounter, whether the suspect is handcuffed, placed in the police car or otherwise moved to a different location and whether the suspect was searched. If some of these factors are present, the defendant likely has a good argument that he/she should have been given Miranda warnings prior to questioning and any answers he gave about any criminal activity are inadmissible in court. If, as in the racing case referenced above, the police encounter is more consistent with a normal traffic stop that is fairly brief and involves only a few questions while the suspect has not been constrained in any way, there is a good possibility that any answers he/she gives to police questioning could be used against him/her in court even if no Miranda warnings were given.

Most people in Jacksonville and throughout Florida know that it is against the law to drive a vehicle without wearing a seat belt. A violation of this law typically results in a traffic ticket and a fine. It is also fairly common knowledge that many criminal investigations and arrests are initiated after a Jacksonville police officer pulls a car over for a traffic violation and then suspects that a crime is being committed by the driver such as a DUI (aka driving under the influence or DWI) or some type of drug possession.

However, what is not commonly known in Jacksonville and throughout Florida is that while it is illegal to drive without wearing the seat belt, a police officer may not pull a driver over for that reason alone. A seat belt violation is referred to as a secondary offense, which means that a police officer may only give a driver a ticket for that offense after the officer has stopped the driver for a different, primary offense, such as speeding or careless driving. As a result, under the current law, the fact that a driver is not wearing his/her seat belt cannot be used as a basis to pull a driver over and initiate a more serious criminal investigation into a crime such as a DUI or drug possession.

Florida lawmakers are proposing to change this law to make a seat belt violation a primary offense. If they are successful, police officers will have the authority to pull drivers who they have reason to believe are not wearing their seat belts. This would hopefully lead to fewer injuries and deaths resulting from accidents but would also likely lead to more DUI and drug arrests.

Consider a scenario where a Jacksonville police officer suspects a person is involved with illegal drugs (such as marijuana, cocaine, heroin, ecstasy or methamphetamine) and enlists the help of a confidential informant (aka a CI) to set up a drug deal with that person. For instance, the Jacksonville police officer may ask the CI to ask the suspect to deliver a container with drugs to another person who happens to be an undercover Jacksonville Sheriff's Office officer. The police officer may encourage the CI to do this by offering money or a good deal on criminal charges the CI is currently facing. So, the CI approaches the suspect and tells him that the CI will give the suspect some money if the suspect takes the container, delivers it to another person and returns with the money the other person gives him. When the suspect delivers the container, he is arrested by the undercover police officer.

The suspect is then charged with a drug possession and/or distribution crime. At the trial, the suspect's criminal defense lawyer wants to know who this CI is so the CI can be questioned about the suspect's role in this incident. In Florida, does the State have to reveal the identity of the CI to the criminal defense attorney?

Normally, in a criminal prosecution in Florida, the State has a limited right to withhold the identity of a CI. Of course, if the State intended to call the CI as a witness at the trial, the State would have to alert the defense to that fact and give the defense the information identifying the CI. But assuming the State does not intend to call the CI as a witness at trial because the State feels they can prove their case with the testimony of the undercover officer alone, the criminal defense lawyer could still force the State to reveal the identity of the CI if he/she can establish that the CI is relevant and helpful to the client's defense. For instance, in this case, the CI may be helpful to establish two possible defenses. The first would be the defense of entrapment which is further discussed here. The second defense would be that the suspect did not know that drugs were in the container he delivered. The testimony of the CI could be relevant and helpful for either defense. If so, the defense may be successful in learning the identity of the CI and using him/her as a witness for the defense at trial.

Where a company employee commits a federal crime while acting in the course and scope of his/her job duties and acts with the intent to benefit the company, the company will likely be criminally liable for the employee's actions along with that employee. This is called vicarious liability, where one person's or party's criminal act confers liability upon a second, related person or party.

The standard for vicarious criminal liability in the federal criminal system is quite low. Basically, where any employee commits a criminal act while working pursuant to his/her job duties and the criminal act was done to benefit the company, the company will also be criminally responsible no matter where the employee fits on the company hierarchy and no matter what efforts the company undertook to prevent the criminal act. In other words, the employee who commits the criminal act can be the lowest level employee and the company can have a variety of strict and thorough policies and procedures in place to deter the criminal conduct, and the company can still face severe financial penalties for the employee's criminal act.

In the Second Circuit (New York), federal criminal attorneys are arguing to change this low standard which basically amounts to automatic criminal liability for a company if the the factors mentioned above are met. Pursuant to the case United States v. Ionia Management where a large commercial oil tanker company's employees dumped waste into the sea while shipping oil for the company in violation of federal criminal law, criminal defense attorneys are arguing that the standard for vicariously attributing criminal liability to a company for the conduct of its employee(s) should be raised to apply only where the employee(s) is a higher level, managerial employee and should take into account whether and to what extent the company had policies and procedures in place to try and prevent such criminal acts from occurring. This would not only allow for a more reasonable and considered application of corporate liability for the actions of employees but also encourage corporations to proactively deter employees from committing criminal acts.