Articles Posted in Evidentiary Issues

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Over the last several years, there has been a lot of litigation over whether, how and to what extend the police and prosecutors can access a person’s cell phone data. As everyone is aware, cell phones can contain a wealth of information about a person, his/her activities and the people with whom he/she associates. This can provide the state with a lot of incriminating information that can be used to successfully prosecute defendant in a wide variety of cases. But because cell phones contain so much private information, courts in Florida have recognized a right of privacy with cell phone information such that the police cannot normally just take a person’s cell phone and search it for whatever they want.

Let’s say the state did obtain a defendant’s cell phone or similar electronic device. Can the state force the defendant to provide the passcode to the state so they can access and search it?

In a recent robbery case near Jacksonville, Florida, the police seized a passcode protected Iphone from the defendant when he was arrested. The state later filed a motion to compel the passcode from the defendant. In the motion, the state said it was looking for all communication information and photographs for a seven day period prior to the arrest. The motion did not reference any specific information the state believed was on the phone that was relevant to the case. The state just believed the defendant communicated with his co-defendant prior to the robbery and was looking for evidence of that. The criminal defense attorney objected based on the Fifth Amendment right against self-incrimination. The Fifth Amendment forbids the government from compelling testimonial communications or acts that might incriminate a suspect or defendant. Whether something is testimonial depends on whether the request requires the person to use the contents of his own mind to communicate some statement of fact. This court determine that disclosing a passcode known in the defendant’s mind would be a testimonial act.

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With the proliferation of social media, the state has an extra tool it can use to obtain evidence and prove cases in court. At this point, people should understand that posting information on the internet, whether pictures, conversations, documents, etc., does not come with a reasonable expectation of privacy. The police or prosecutors can subpoena information from internet service providers or simply go on a defendant’s social media page and print off or download incriminating information.  The bottom line, whether in relation to a criminal case, a civil case or just generally- do not post things on the internet that you would not want the police or the general public to see.

For example, in a case just south of Jacksonville, Florida, the police were investigating two auto thefts that happened in similar locations within an hour of each other. The police developed suspects for the two auto thefts and ultimately obtained one of the suspect’s cellphones. They obtained a search warrant for the phone and saw Facebook postings showing two defendants in the stolen cars. One of the defendants was wearing one of the victim’s watches.  The videos were posted on Facebook shortly after the second auto theft. The victims were able to identify the suspects through the Facebook videos.  Both defendants were convicted based on the Facebook videos.

This was a fairly extreme example of stupidity on the part of the defendants, but people do post things on the internet that implicate them in crimes or negatively affect civil cases.  It may not be as obvious and direct as this, but it does happen, and police, prosecutors and parties in lawsuits do check Facebook pages and other social media to try to find evidence that helps their cases. In Florida, as long as the internet evidence is legitimate and unaltered, it very likely may be used as evidence in court.

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In most DUI (driving under the influence of alcohol or drugs) cases in Florida, the police arrest a person they believe is driving while impaired. That DUI suspect is taken to the jail and booked. Only after the suspect is taken to the jail do the police ask the suspect to take a breathalyzer test to test the suspect’s blood alcohol level.  In some cases, where the breathalyzer test is not practical, often when there is an accident and the suspect is taken to the hospital, the police will request a blood draw to test that blood for alcohol content.

A DUI suspect may refuse a breath test or a blood test.  Due to the implied consent laws in Florida, a refusal may come with certain consequences (such as a longer driver’s license suspension and the state trying to use the refusal as evidence in court), but the suspect cannot be forced to submit to a breath, blood or urine test as a general rule.

However, if the DUI suspect refuses the breathalyzer or a blood or urine test, the police may try to get a subpoena for the blood that they can send to the lab to test for alcohol content.  Alternatively, the state can try to subpoena a person’s medical records in cases where a suspect went to the hospital after a crash, and the hospital tested the suspect’s blood for alcohol or drugs.  It’s not something we see often, but a subpoena is a tool the police and the state have to obtain evidence when it is otherwise difficult or impossible for the state to get that evidence. In a DUI case, that evidence can be the difference between a strong case and a weak case.

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One of the most misunderstood issues in criminal law is hearsay.  People often confuse he said/she said evidence with hearsay.  Many people believe that the State cannot prosecute a person based on he said/she said evidence.    This article seeks to clear up any misunderstandings regarding what hearsay is and isn’t and when the State can proceed on nothing but verbal testimony.


What is Hearsay?


Hearsay is defined as an out of court statement offered to prove the truth of the matter asserted.  Plainly speaking, it typically means that a witness is testifying in court to what someone else said out of court.  For example, if witness John Smith takes the witness stand in a DUI case against Mike Adams and says, “Ms. Jones told me that Mike Adams was driving recklessly,” that would be hearsay.  The statement, “Mike Adams was driving recklessly,” is being offered to prove that Mike Adams was driving recklessly.  This also was an out of court statement made by Ms. Jones.  So, this statement should not be admissible unless it fits into one of the statutory hearsay exceptions, as discussed below.

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In Florida and other states, DNA can be a useful tool for the police and the prosecutors to use to determine who committed a crime.  It is not used nearly as often as one might expect from watching TV shows, but it certainly does come in to play in some cases.  The police might respond to the scene of a crime and collect samples of tissue in the hopes that they can compare the DNA of that tissue to a suspect, find a match and prove that the suspect either committed the crime or at least was present at the scene of the crime.

However, in order to make this comparison, the crime scene officers need to find usable tissue at the scene.  Secondly, the state needs to be able to collect DNA from a suspect to make the comparison with the evidence.  In the past, collecting DNA was more intrusive upon defendants and suspects.  More recently, a quick, simple and painless cotton swab of the inside of a person’s mouth can secure the DNA necessary for a comparison.  Because collecting DNA from a person is much less involved and intrusive than it used to be, courts are more likely to allow it since it is such a minor and unobtrusive procedure.

However, that does not mean the police or the state can just obtain a person’s DNA whenever they want or for whatever reason they want.  In a recent armed robbery case south of Jacksonville, Florida, the police collected a gun and a backpack that was apparently possessed by the armed robber.  They found a suspect and arrested him.  During the case, the state sought to obtain the defendant’s DNA by doing a cheek swab so his DNA could be compared to any DNA found on the gun or backpack.  However, due to the Florida crime lab procedures, probably based on budgetary concerns, the state could not say whether they had any DNA from the evidence to compare to the defendant’s DNA.  Apparently, the policy is to only determine if there is evidentiary DNA once they have DNA from a suspect.

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In a recent DUI case in Massachusetts, the state sought to prove that the defendant was impaired from marijuana while driving, thereby rendering him guilty of driving under the influence under that state’s DUI laws.  At the trial, the prosecutor had the arresting police officer testify that based on his observations of the defendant and the field sobriety exercises, the defendant was high on marijuana.  The defendant was convicted of DUI, and the criminal defense lawyer appealed.

The appeal was successful, and the DUI conviction was reversed.  The Massachusetts Supreme Judicial Court ruled that a police officer cannot legally testify that a defendant was high on marijuana based on observations and a field sobriety test.  The court noted that marijuana can have different effects on different people.  Also, the police officer was not an expert on marijuana and its varying effects on people (very few, if any, are; most seem to think they are).  As a result, the police officer’s testimony on that issue was improper to support a DUI conviction.

In just about every DUI case, the police officer is going to ask the suspect to submit to field sobriety exercises.  These are difficult balancing and related exercises performed under adverse circumstances.  The directions for each test can be confusing, and if a suspect says he/she does not understand them or needs for them to be repeated, the police officer will likely suggest that is evidence of impairment rather than the officer’s poor communication or explanation.  The tests are completely subjective, and the judge is a police officer who likely already believes the suspect is impaired, otherwise that judge would not have asked the suspect to perform them in the first place.  Sometimes the suspect’s performance is recorded on a police officer’s camera in his/her vehicle, but often it is not because many police officers do not have video cameras in their vehicles.  If the arrest is not recorded, whether the defendant did well on the field sobriety exercises or completely failed them is a matter of the police officer’s word against the defendant’s word.  However, because the effects of excessive alcohol intake are well known and fairly consistent among different people, police officers are allowed to testify that a defendant who allegedly failed the field sobriety tests was too impaired from alcohol to drive.  That is not the case with regard to marijuana, according to this recent Massachusetts case.

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In Florida, we have a law commonly known as the accident report privilege.  In all crashes that involve an injury or significant property damage, the police officer responding to the crash must prepare a crash report that documents information about the crash and the people involved.  When a person is involved in an auto accident in Florida, that person must remain at the scene and provide certain information to the responding officer.  One can see how a duty to remain at the scene of the crash and provide information to the police might conflict with a person’s right to remain silent if there might be criminal implications to the crash.  Some crashes obviously involve criminal activity, such as driving under the influence of alcohol or drugs, hit and run and/or driving with a suspended license.  People have a right to remain silent rather than make incriminating statements to the police.

In order to reconcile this conflict, the Florida accident report privilege provides that the state cannot use in court as evidence a person’s statement made to the police for the purpose of completing the crash report.  In other words, if a driver makes an incriminating statement to the police officer while he/she is conducting a crash investigation, the state cannot call the police officer to repeat that statement in court in the state’s case.

However, there are exceptions.  First, the state might be able to use a statement made by the driver for the purpose of completing the crash report as impeachment.  If at trial the defendant waives his/her right to remain silent and testifies in court about the crash, the state or the opposing party may use the statement made to the police at the time of the crash against the driver if it is inconsistent with what the driver is saying in court.  Another exception to the Florida accident report privilege exists where the driver does not follow the law after the crash.  For instance, if the driver is involved in a crash and the flees the scene, he/she loses the benefit of the accident report privilege.  Florida cases have ruled that where a driver is involved in an accident that results in a death and then leaves the scene of the crash (which is a serious felony crime in Florida), the driver loses the benefit of the accident report privilege if he/she gives a statement to the police once they locate the driver.

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The Constitution provides that no person can be compelled to make any incriminating statements against him/herself.  This means that when the police believe a person was involved in a crime and want to ask him/her questions about it, that person has a right to refuse to talk to the police.  Usually, that is the smart thing to do.  If that person is later arrested and charged with a crime, the state cannot use the fact that the person decided to remain silent against him/her in court.

This Fifth Amendment right to remain silent also means that a defendant does not have any obligation to testify at a criminal trial.  The defendant can always remain silent at the trial, and the state cannot make any negative comment about the defendant failing to provide his/her side of the story in court.

The Fifth Amendment does not protect a defendant in all situations when it comes to a person’s silence or comments about a potential crime.  For instances, the state can comment about a defendant’s silence after the defendant has waived his/her right to remain silent.

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In Florida, most people know that their Fifth Amendment right to remain silent means that the state cannot normally use a person’s silence in response to police questioning against them in court. However, does this same principle extend to a refusal to provide DNA?

In a recent murder case south of Jacksonville, Florida, the police responded to an apartment where they saw signs that the victim had been attacked. The police were able to collect DNA from the apartment which they believed came from the attacker. They went to question the defendant who was the ex-boyfriend of the victim. The police asked if they could take a DNA sample from the defendant (now done with a simple swab inside a person’s mouth) to compare it to what they found in the apartment. The defendant refused to give a DNA sample.

The defendant was ultimately arrested for murder. The state tried to admit the evidence that the defendant refused to provide a DNA sample. They argued that the defendant’s refusal was evidence of his consciousness of guilt. The trial court let the state admit the evidence. However, the case was reversed on appeal. The appellate court found it was particularly important that the police did not tell the defendant that if he refused to provide a DNA sample, that could be used against him in court, similar to Miranda warnings that are given. The defendant was given the impression that giving the DNA sample was optional, and if he refused, there would be no adverse consequences. Had the police made the proper disclosure to the defendant and he still refused, then the state would likely have been able to admit evidence of his refusal at the trial.

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States have different laws dealing with whether you can record a person’s oral communications and disclose it to the police or use it as evidence in court. Some states allow such a recording as long as just one party to the discussion agrees, even if the consenting party is also the party recording the conversation. In Florida, it is illegal to record an oral communication unless the people communicating know of the recording and consent. Therefore, in Florida, you cannot secretly record a private conversation with another person and then disclose it or use it in court.

There are exceptions to this rule. As discussed, consent is one of them. It is not uncommon to have a phone conversation with a business and be told that they are recording the conversation. In that case, the recording is legal, and the conversation could be used later in court. The rule about recording private communications would seem to be more important these days as just about every cell phone now can also be used as a recording device. People need to be aware that the things they say could be recorded and later used against them. Of course, this Florida law is supposed to offer some protection by requiring someone who wants to record a conversation to notify the other person and get the proper consent.

However, not all oral communications are subject to this legal protection. Under Florida law, an “oral communication” is considered a communication that is made with the expectation that it would remain private and not be recorded or heard publicly. In other words, if you are having a conversation on a crowded bus, it can be recorded without your knowledge and consent because it is obviously not a private conversation. On the other hand, if you are having a conversation with another person in your home or office, without other people around, it would likely be considered private and could not be recorded without your consent.