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Criminal Conviction Reversed in Florida When Prosecutor Elicits Testimony Regarding a Defendant’s Failure to Produce Evidence

In Florida, defendants in criminal cases have certain Constitutional rights that stay with them from the time they are arrested until their trial, if they choose to have one. One of those rights is the right to be considered innocent unless and until the state proves the defendant’s guilt beyond a reasonable doubt. Many people are familiar with that right as it is one of the few things the TV shows get right, and it is a primary right that most people hear about along the way. But what does it mean?

When a person is charged with a crime in Florida, that person is entitled to a trial whereby a jury or judge decides whether the defendant is guilty or not guilty. At that trial, the defendant is presumed innocent. Only after the state presents sufficient evidence of the defendant’s guilt, if the state ever does, does that presumption of innocent disappear. Because a defendant is presumed innocent and the state has the burden of proving the defendant’s guilt beyond a reasonable doubt, the defendant and the criminal defense lawyer do not have have to present any evidence or provide any testimony to ensure a not guilty verdict. Of course the criminal defense attorney can put on as much evidence and testimony as he/she wants to support the defense, but he/she does not have to. If the defense puts on no evidence and merely decides to attack the state’s evidence, the defendant must be found not guilty if the state never meets its burden of proof.

In conjunction with these rights and procedures, the state cannot state or imply to a jury that the defendant is supposed to present evidence proving he/she is not guilty. The state cannot make any comments about a defendant who either did not testify in court or refused to talk to police before the trial. The state cannot argue to the jury that the criminal defense lawyer failed to present evidence showing the defendant is not guilty.
For instance, in a recent felony theft case near Jacksonville, Florida, the state presented a detective to testify that he questioned the defendant before his arrest. The detective testified that he went to speak to the defendant to give him an opportunity to refute the theft allegations. The detective testified that the defendant did not make any statements or produce any documentation that sufficiently refuted the allegations so the detective arrested the defendant. The defendant’s theft conviction was reversed. This is called improper burden shifting. As we discussed, the state has the burden of proof to establish the defendant’s guilt beyond a reasonable doubt. The defendant does not have to say anything or produce any documentation showing he/she is not guilty. The state cannot elicit testimony at trial that discusses the failure of a defendant to produce evidence proving he/she is not guilty. That impermissibly shifts the burden to the defendant to show he/she is not guilty. If the state does that and the defendant is convicted, the conviction should be reversed.