Articles Posted in Criminal Procedure

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In Florida, and likely in all of the other states as well, it is illegal for a person to prevent another from reporting a crime or otherwise providing information about criminal activity to the police or in court.  This is part of a more inclusive statute dealing with witness tampering.  The Florida law makes it illegal for a person to use force, intimidation or threats to cause another person to avoid testifying or providing evidence in a case, damage or alter evidence, avoid a subpoena or testify falsely.  It is also illegal to hinder a person from reporting a crime.  This is a felony crime in Florida, and it becomes a more serious felony the more serious the underlying issue is.  For instance, a person can be charged with a life felony of tampering with a witness if the person is obstructing a witness relating to certain serious first degree felony crimes.

This situation can come up in almost any case, but it comes up more frequently in domestic violence cases.  Since the parties know each other in domestic battery cases, the dynamic is one where it is more likely that the suspect will takes steps to try and prevent the victim from calling the police, giving a statement to the state or coming to court to testify.  If force, threats or intimidation are used, this could be a separate crime.

A person can be guilty of tampering with a witness even if the witness or victim has not taken any steps to contact the police or report a crime.  In a recent case near Jacksonville, Florida, the defendant was being abusive to his daughter.  The kid’s mother and sister observed the incident.  After some yelling, the defendant took the cell phones from the older sister and mother and broke one of them.  He kept the other.  He told them they could not call the police on him for his abuse.  No one had attempted to call the police and report the abuse before the defendant took the cell phones.  The defendant was charged with tampering with the two witnesses for preventing them from calling the police.

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As most people know, when a person is arrested or otherwise taken into custody, they have certain rights about which the police must inform that suspect.  That person has a right to remain silent and consult a lawyer without ever speaking to the police.  People always have this right, but it is only once they are in some sort of custody and under interrogation when the police must inform the suspect of those rights before moving forward with an interrogation.

Few things damage a suspect’s criminal case more than speaking to police, particularly in the early stages of the case when the suspect does not know all of the details and the police have much more information about the case.  It is almost always more beneficial for a suspect to remain silent at this point.

When the police want to get a statement from a suspect, it is normally because the police feel like they can make their case against the suspect stronger with the statements the suspect makes.  In almost every situation, the police are correct.  So, when deciding whether to speak to the police at an early stage with limited information, it is important to understand the police are seeking a statement for a reason and that reason is not favorable to the suspect.

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While it is one of the more misunderstood amendments, just about everyone has some familiarity with the First Amendment.  The First Amendment covers a few general areas, but most people recognize it as giving people a right to free speech.  One area where it is commonly misunderstood is when speech has negative consequences in the private sector, i.e. a person loses a job or a company gets boycotted based on speech.  The First Amendment does not apply in these contexts.  Private companies and private citizens can punish people or take action based on someone else’s speech.  The First Amendment does apply to the government.  In other words, the government, or any subdivision, department or employee thereof, is restricted in actions it can take based on the speech of a person.  As a general matter, the police cannot arrest a person based on speech.  The government cannot generally make laws prohibiting speech.  Of course, there are exceptions.  Some speech is not protected.  Specific threats of violence or plans to commit crimes are not necessarily protected under the First Amendment, and the government can take action in certain of those situations.

Another area where the First Amendment may have limitations is in regard to criminal cases.  The police, the prosecutor, the other lawyers, the judge and other parties involved in a criminal trial do not have free reign to say anything publicly about a pending criminal case, particularly a criminal case that is in the news.  Like every other right, the First Amendment right to free speech can be limited if it conflicts with another Constitutional right.  In the case of a criminal trial, that conflicting right may be the Sixth Amendment right to a fair trial and an impartial jury.  If comments by the police or the prosecution might improperly persuade the jury, or a potential jury, the judge might issue what is called a gag order.  Of course, this goes both ways.  The defendant has a right to a fair trial and an impartial jury, but the defense attorney cannot make statements outside of court that might improperly persuade the potential jury towards his/her side either.

A gag order is an order from the judge preventing the attorneys and perhaps others involved in a case from making statements outside of court about the case.  A gag order will normally prevent the affected parties from talking about the facts of the case, the various theories, the legal issues, sentencing issues and other matters that might influence jurors.  Gag orders are rare because people generally have a right to talk about whatever they want.  But, if one side can show that statements from the other side are likely to impact the right to a fair trial, the judge may issue an order limiting statements.  If the judge does so, that order needs to be as specific and limited as possible so it is only designed to restrict statements and topics that are likely to affect a fair trial and influence a jury.

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When a person is arrested for a new criminal charge in Florida, that person is entitled to a hearing to have a reasonable bond set for the case.  Not everyone will get a bond.  For instance, some charges are so serious that a judge might set no bond for a person.  A person’s criminal history, ties to the community and other factors help determine what a reasonable bond should be for each case.  Once a bond is set, the person can either pay the full bond amount to the jail or go to a bonding company and pay a fee (usually 10% of the bond amount) to be released from jail while the case is pending.  As long as the person does not flee the jurisdiction and attends the required court dates, the person who put up the bond will get the money back at the end of the case (although sometimes the clerk will take out fines and costs if they are ordered as part of a sentence).

The rules are different for violation of probation cases.  People with new cases have certain due process rights that allow those defendants to take positions and have hearings on issues related to probable cause for arrests and bonds.  However, people who are on probation at the time of a new arrest do not have all of the same protections.  For instance, if a person is on probation and is arrested for a new case, that person’s bond may be revoked based solely on that new arrest.  The new arrest must be a “qualifying offense” under the Florida statute (generally any serious felony offense), but only the arrest is necessary for a revocation of the bond.  Of course, an arrest is not evidence of guilt and everyone is innocent until proven guilty at that point.  However, because people on probation in Florida do not have the same rights as others, an arrest for many felony crimes is all it takes for a prosecutor to file a motion to revoke bond and a judge to grant it.

Practically, it is a very bad idea to get arrested while on probation. Some judges will revoke a person’s bond based on just about any new arrest while on probation.  Additionally, not only will the person have a new case to deal with, but will have a separate probation violation case.  The new case has a higher standard of proof the state must meet- beyond a reasonable doubt.  However, the probation violation case has a much lower standard- preponderance of the evidence, which basically means more likely than not.  Prosecutors know that a new case may be weak from an evidentiary standpoint, but if the person is on probation, the state is much more likely to win at a probation violation hearing in front of a judge rather than a trial in front of a jury.  This gives the state a lot of leverage, even with weaker new cases.

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In Florida and elsewhere, when a suspect is arrested, he/she has a constitutional right to remain silent and consult a lawyer before making any statements or making any important decisions about the case.  In fact, for just about every defendant in a criminal case, this is exactly what a suspect or defendant should do.  It is exceedingly rare for a person to make a statement to the police at that early stage, with such limited information and without the advice of a criminal defense lawyer, and it doesn’t do anything but hurt the defendant’s case.

As part of this right to remain silent and consult a criminal defense attorney, the police are required to read the Miranda warnings to a suspect who is in custody before any request to speak with him/her about the case.  These warnings inform the suspect that he/she has a right to remain silent and a right to a criminal defense lawyer.  If the suspect invokes those rights, the police cannot question the suspect about the case.

However, even when a suspect exercises his/her right to remain silent and requests a criminal defense attorney, the police can still ask certain questions about the suspect as part of the arrest and booking process.  The police are still permitted to ask biographical and routine booking questions.  For example, when the police arrest someone, they fill out reports and enter the suspect’s information into their system.  They can ask questions relating to physical characteristics, age, address, date of birth, place of employment and similar identifying characteristics.  The police cannot ask questions that are designed to elicit information about the case.

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Whether through books or TV shows or movies, most people in Florida have heard the Miranda warnings and understand that the police are supposed to read them to a suspect after he/she has been arrested.  It is important that the police inform people of their constitutional rights upon their arrest.  Of course, this includes the right to always remain silent when police want to ask questions or take a statement and the right to consult with a lawyer before a suspect makes any statement or makes any decisions about his/her case.

However, the police do not have to read a person the Miranda warnings in every encounter they have with suspects.  The general rule is that the police are required to read Miranda warnings before any custodial interrogation.  In other words, a suspect has to be in custody to trigger this requirement.  Custody is generally defined as a situation where the suspect is not free to leave.  Obviously, if a person is being handcuffed and arrested, he/she is in custody.  However, it is less clear when the police confront a suspect to ask questions or bring the suspect to the police department to ask questions.  The other requirement is that the police are conducting an interrogation.  If the police approach a person and the person starts making statements on his/her own, that is obviously not a custodial interrogation that requires Miranda warnings.  If a suspect voluntarily goes to the police station and starts talking to the police, that likely is not a custodial interrogation either.  However, if any force or involuntary confinement is used and/or it is clear that the suspect cannot just stop and leave, that would be a custodial interrogation.

It is important to note that, whether an encounter with police is a custodial interrogation or obviously a consensual and casual interaction or something in between that is not so clear, a suspect or defendant always has the right to remain silent and request a lawyer before anything critical to the case happens.  And in just about every situation, that is exactly what a suspect or defendant should do.  Many, many cases get a whole lot worse for suspects and defendants when they make the decision to talk to the police without knowing all of the facts and issues about their case.

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After a person is convicted of a crime in Florida, whether as a result of a guilty or no contest plea or a jury trial, it is up to the judge to determine the defendant’s sentence.  Of course, if the criminal defense lawyer and the prosecutor work out a deal as part of a guilty or no contest plea, the judge still has to agree to accept the deal, but judges will normally go along with a deal worked out by the two sides.  Minimum mandatory penalties for some crimes in Florida can limit a judge’s discretion in sentencing.  However, if a defendant enters a plea without a deal with the state or a person is found guilty at a trial, the judge will usually be the one to decide the defendant’s sentence without any limitations.

The sentence in such cases is usually determined at a sentencing hearing.  This is a hearing at which both sides can present witnesses, evidence and arguments to convince the judge to sentence the defendant as they see fit.  The parties can present a wide variety of information in aggravation or in mitigation to convince the judge of their position.  The judge is permitted to consider many different facts and opinions when determining a defendant’s sentence.

However, some facts are not appropriate for consideration at sentencing.  It is not uncommon for a sentencing hearing to take place several weeks, or even months, after a defendant enters a guilty or no contest plea or loses a trial.  Events that occur in between can be considered by the judge, for better or worse.  Examples of positive developments in between a plea and sentencing might be that the defendant obtained a new job or started a rehabilitation program.  On the other hand, if a defendant fails to appear at his/her sentencing hearing, that will almost always result in a higher sentence once the defendant is arrested on a warrant.

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Jury-Room-300x225Most people have heard through school, interaction with the judicial system, television shows or otherwise that there is a constitutional right to  jury trial for people charged with a crime.  This is usually true, but it is not true in every case.  There is an exception for certain minor crimes where a defendant does not have a right to a jury trial and the judge decides whether or not the defendant is guilty of the crime.  That exception involves crimes where the defendant cannot be sentenced to jail or prison for more than six months.  In other words, if a defendant is charged with a minor crime and the maximum penalty is six months or less in jail, the defendant is not entitled to a jury trial.  The parties might agree to a jury trial or the judge might insist on a jury trial, but the law does not give the defendant a right to a jury trial if he/she wants one and the judge will not allow it.  Of course, this would only apply to minor misdemeanors, and it would never apply to felonies.  However, some people can be seriously impacted by any criminal conviction no matter how minor the charge or by any time in jail and may want a jury trial to protect his/her rights.

It is important to understand that a defendant is always entitled to a jury trial in a criminal case if the potential penalty for a conviction of the crime is more than six months.  It does not matter if the judge is not likely to sentence the defendant to more than six months in jail or even if the judge says he/she will not do it.  As long as the law allows for a sentence of more than six months in jail, the defendant can have a jury trial.

For instance, there was a case just south of Jacksonville, Duval County, Florida where a defendant was charged with possession of less than an ounce of marijuana.  This is a misdemeanor crime, but as ridiculous as it may seem, it carries a potential penalty of a year in jail.  The defendant wanted a jury trial, but the judge denied the request because he said he had no intention of sentencing the defendant to jail time if he was convicted of the crime.  The defendant had his trial with the judge as the decision maker (referred to as a bench trial), the judge found him guilty and the judge sentenced him to no time in jail.

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Mans-SIlhouette-300x218As most people are aware in Florida and elsewhere, when the police arrest a suspect or take a suspect into custody, the police are required to read the suspect the Miranda warnings before attempting to take a statement from the suspect.  The Miranda warnings discuss a variety of rights, but a primary right that must be disclosed to the suspect is that he/she has a right to remain silent.  This means that the suspect can refuse to speak with the police at any time, and the state cannot use the defendant’s silence against the suspect in court.  In order for a defendant to assume the protection of the Fifth Amendment right to remain silent, the suspect must clearly state that he/she would like to remain silent or that he/she would like to speak with an attorney before talking to the police.  Vague or unclear statements about the right to remain silent and the right to an attorney are not generally held up in court.  Additionally, the police want to talk to suspects for a reason- to get evidence they can use to convict them.  Therefore, the police may disregard anything but a clear and confident declaration of the right to remain silent and the right to talk to an attorney.  If the police think the suspect’s position leaves room for interpretation, the police will often move forward with trying to take a statement.

However, once the suspect is clear that he/she does not want to talk to the police or wants to speak with a lawyer, the police are required to shut down any attempts to take a statement from the suspect.  In other words, once a suspect or defendant invokes the right to remain silent, that remains in effect for the remainder of that case.  The defendant can always change his/her mind and make contact with the police or the state, but the state is not supposed to try to take a statement from the defendant on their own initiative.

This applies to the police directly trying to speak to the defendant, but it also applies to the police trying to get a statement from the defendant using more indirect methods.  In a recent sexual battery case south of Jacksonville, Florida, the defendant was arrested for sexual battery and the police tried to take a statement from the defendant after his arrest.  After he was read his Miranda warnings, the defendant requested a lawyer and refused to give any statements.  The defendant was taken to jail and remained there as he was unable to bond out.  While in jail, the defendant started talking about his case to one of the inmates in his cell.  That inmate went to the police and told the police that the defendant was talking about his case.

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In Florida, the state has a certain period of time from the date a crime has occurred to prosecute the defendant.  Like other states, Florida has statutes of limitation which set out a number of years within which the state must prosecute a person for committing certain crimes.  The period of time provided in the statute of limitations depends on the nature of the crime.  Two years is common for misdemeanor crimes in Florida, and four to five years is more common for felony crimes.  For instance, for a felony, if the state does not prosecute a defendant within five years of the date of the crime, the criminal defense lawyer can file a motion to dismiss the case because the statute of limitations has run.  This situation commonly occurs when the police believe a suspect has committed a crime and issue a warrant or capias for that person.  However, the suspect is not caught and brought to court for several years, beyond the time period indicated in the statute of limitations.  In that case, the criminal defense attorney may be able to have the case dismissed.

However, there are exceptions to the statute of limitations.  The Florida statute itself is fairly ambiguous, but a recent Florida Supreme Court case attempted to clarify one of the confusing parts of the statute.  In this case, the defendant allegedly committed the crime in 2009, and a warrant was issued for his arrest.  The statute of limitations for the crime was three years.  The state did not arrest and charge the defendant until later in 2012, more than three years after the crime was committed.  The criminal defense lawyer filed a motion to dismiss the case because the state was attempting to prosecute the defendant more than three years after the crime occurred.

The state argued that the statue of limitations was tolled, or delayed, because the suspect was continuously out of state for part of those three years, as the statue specifically mentions a defendant being out of state as an exception to the running of the limitation period.  The criminal defense attorney argued that the state has to show that they diligently searched for the defendant in order to avail itself of the benefit of the tolling of the statute.  The statute is not clear as to how these two factors interact with each other.  The question is whether the state merely has to show that the defendant was out of state for a continuous period, which tolls the statute of limitations during that time, or whether the state also has to prove they diligently searched for the defendant and his/her absence thwarted their prosecution of the defendant.