Articles Posted in Evidentiary Issues

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Most people in Florida enjoy the Constitutional protections that prevent the police from searching a person’s home, vehicle or other belongings without probable cause, a search warrant and/or consent. In other words, police cannot just go and enter a person’s home or search something that belongs to a person without respecting certain Constitutional safeguards, which generally require a search warrant or an agreement from the owner of what is being searched.

However, people on probation in Florida do not necessarily get the full protection of these Constitutional provisions. When a defendant pleads guilty or no contest to a criminal charge or is found guilty after a trial, the judge will sentence the defendant. That sentence often includes probation, either by itself or after a term of incarceration. When a defendant goes on probation, there are certain conditions that must be followed. There may be specific conditions in certain cases, such as paying a certain amount for restitution in a fraud case, and general conditions that apply to most or all cases. One of the general conditions of probation that is often ordered in Florida is one that allows a probation officer to enter the probationer’s home to search it for drugs, weapons or other indicia of criminal activity. While a probation officer or law enforcement officer would not normally be allowed to enter a person’s home and look around without a search warrant or permission in advance, a person on probation does not have that same protection if a random search was included as a condition of probation. If the probation officer randomly searches a probationer’s home and finds anything illegal, that probationer could face new charges and a violation of probation charge without being able to successfully challenge the search and get the evidence thrown out.

In a recent case near Jacksonville, Florida, a defendant was sentenced to probation after being convicted of a violent crime. A general condition of probation allowed the probation officer to enter his home any time to search it. These general conditions of probation are often not disclosed to the defendant in court during the sentencing hearing. A defendant may have to carefully read his/her sentencing paperwork to see that the condition exists. Many do not bother to do that.

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Most people are aware that the United States Constitution affords people the right to remain silent. This means that a person does not have to give any statement to police that might be incriminating, and a defendant cannot be compelled to testify at his/her own trial. If a person chooses not to speak with police and/or chooses not to testify at trial, the state cannot use that choice against the person. For instance, a prosecutor could never tell the jury to infer that the defendant is guilty because he/she did not testify and defend him/herself at trial.

When a person is arrested in Florida, he/she should be read Miranda warnings. The Miranda warnings inform a person of certain rights, including the right to remain silent and the warning that if the suspect does make a statement, it can be used against him/her in court. That is fairly well known at this point. If a person is arrested and decides not to make a statement, he/she is exercising his/her constitutional rights, and the state cannot mention that silence at the defendant’s trial to try and use it against him.

However, there are times when a police officer is investigating a crime and is not sure whether a person is a suspect. In those early stages, before any arrest, if the police officer asks a person questions and the person remains silent, can that silence be used against him/her at trial? Technically, before an arrest or a detention where the person is not free to leave, Miranda warnings and the constitutional right to remain silent are not implicated. What if a police officer arrives at a crime scene, has no idea who the suspect might be, asks a person some questions, that person remains silent and then is later developed as a suspect? Can the state use that silence against him/her?

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When a defendant in Florida is arrested and charged with a crime and then decides to enter a guilty or no contest plea, or has a trial and is found guilty, he/she will be sentenced by the judge. The judge will likely have a few options when sentencing the defendant. The judge can sentence the defendant to incarceration, probation, both or neither (time served). If the defendant is sentenced to a term of probation, there will be certain conditions that the defendant must follow. If the defendant fails to comply with one or more of the conditions of his/her probation, the judge may issue an arrest warrant for a violation of probation. If it is determined that the probationer violated his/her probation, the judge will likely sentence him/her again to incarceration and/or more time on probation.

There are a few conditions that are fairly standard for anyone on probation. For instance, a person on probation will likely be required to avoid possessing or using any drugs, except those prescribed by a doctor. If the original charge was a drug related charge, the probationer might have to have to take random drug tests. If the probationer is found with an illegal drug like cocaine or marijuana in his/her system, a violation of probation warrant is likely. If the probationer is found with a drug like Hydrocodone or Xanax in his/her system, the probationer should be safe as long as he/she can show that he/she has a valid prescription for the drug. Normally, the probationer will inform the probation officer of all of his/her prescription drugs at the beginning of the probation. However, if the probationer cannot produce a valid prescription, it will likely be treated as if the probationer is using any other illegal drug.

In a recent case near Jacksonville, Florida, a defendant received a probationary sentence and was required to avoid possessing or using any drugs, except a prescription drug with the appropriate prescription from a doctor. After a random drug test, the probationer’s sample tested positive for opiates and Oxycodone, according to his probation officer. A warrant for a violation of probation was issued. At the probation violation hearing, the state’s only witness was the probation officer. He testified that he performed an informal field test on the probationer’s urine sample that resulted in the positive results. The sample was then sent off to a drug testing lab for more formal testing. At the hearing, the probation officer brought the more thorough lab test result document that also indicated the probationer provided a urine sample positive for opiates. Finally, he testified that he received an anonymous call indicated he should drug test the probationer because he was using drugs he bought off the street.

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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.

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In some of the bigger trafficking in drugs and other drug cases, one major component of the state’s case may be phone calls of the defendant that were intercepted and recorded. These phone calls intercepted without the defendant’s knowledge are often critical pieces of evidence as they may involve the defendant discussing drug deals in his/her own voice, or at least discussing logistical issues with other co-defendants or confidential informants.

When the intercepted phone calls are in English, the state will normally just play the recordings at the trial for the jury to hear and draw their own conclusions as to what was said and what was meant on the calls. How is that information conveyed to a jury when the phone calls are in another language?

In a recent trafficking in heroin case south of Jacksonville, Florida, the police had recorded many phone calls involving the defendant and his co-conspirators where various drug transactions were discussed. The police used their detectives to transcribe the calls and used those transcripts their police officers prepared as evidence of the phone calls at the trial. The criminal defense lawyer objected to using the police officers’ transcriptions of the phone calls arguing that they were not objective. As one might expect, transcripts of phone calls involving the defendant with his co-conspirators can be very damaging evidence at a trafficking trial. If the police officer, who obviously believes the defendant to be a drug trafficker, interprets some vague aspects of the recordings against the defendant, it could be the difference between a conviction and an acquittal. Many of these recordings are of good quality, but some are not and even the good ones will have periods where it is difficult to hear what is being said.

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In Florida, there are certain privileges a defendant has in a criminal case that preclude the prosecution from presenting evidence to the jury. For example, private conversations between a defendant and his/her attorney, doctor, psychologist or psychiatrist and other specified individuals are privileged and cannot be discovered or admitted into evidence by the state. These conversations must generally be kept private at the time they take place. For instance, if you see your psychologist at a party and have a conversation with him/her in front of other people, that conversation may lose its privileged status. On the other hand, if you have a regular private appointment with a psychologist, it is highly unlikely the state could ever learn what was said during that meeting or be able to use anything said against the defendant in a criminal case.

These privileges remain intact even if someone overhears the discussion as long as the defendant had a reasonable expectation that the conversation was private. In a recent assault case near Jacksonville, Florida, the defendant was taken to the hospital after he was arrested. In the emergency room, doctors approached him and asked him a variety of questions about his condition and the incident that led to his arrest. Because the defendant was under arrest at the time, a police officer was nearby guarding him. The defendant made some incriminating statements to the doctors that the police officer overheard and conveyed to the prosecutors. The prosecutors sought to have the police officer testify to those statements at the trial.

The criminal defense lawyer filed a motion to exclude the statements at trial arguing that they were privileged statements between the defendant and his doctors. The state argued that the privilege did not apply because the defendant made the statements in the presence of the police officer.

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In Florida, the a defendant may use the defense of duress, or coercion, to just about any crime except homicide. As a result, a defendant cannot argue to a jury that someone forced him/her to kill another person, but it can be used in most other situations, where it applies. The defense of duress or coercion is not used often, and is rarely successful, but in order to assert such a defense, the defendant has to establish that he she was reasonably in danger that he/she did not cause, the danger involved significant harm to him/her or someone else, the danger must be imminent, the defendant had no way of avoiding the danger other than committing the crime, the crime was committed to avoid the danger and the harm the defendant avoided outweighed the harm caused by committing the crime.

So there are a lot of factors involved in presenting a proper duress defense, and those factors are very difficult to prove. The classic example would be where a drug user held a gun to a person or a family member and threatened violence if the person did not go to a pharmacy and fill out a fraudulent prescription for pain pills. If the defendant was arrested for trafficking in oxycodone and was able to establish that he/she got the pills to avoid violence, that could be a valid defense.

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Every now and then we hear of cases where the state obtains good evidence against a defendant because the defendant made statements that he/she thought were private but could be overheard by the police. The more obvious examples are the calls made by jail inmates to friends and relatives outside of the jail. Those calls are going to be recorded by the state, and anything incriminating said during those calls can be used against the defendant in court.

Less obvious situations occur when a suspect is brought to the police station and allowed to have a “private” conversation with a friend or relative. In two recent cases, the police brought a suspect to the police station to question him. The suspect had a relative present who asked to speak to the suspect privately. The police put them in a room by themselves. In both cases, the police officers recorded the conversations. When the suspect made incriminating statements to their family members, those statements were used to convict the suspects of crimes.

When their cases went to court, the criminal defense lawyers for the suspects filed motions to suppress the incriminating statements to have them thrown out of court. They argued that the defendants had a reasonable expectation of privacy during their “private” conversations with relatives. However, when these conversations take place in a police department, it is unlikely that a court will determine that a suspect or defendant has a reasonable expectation of privacy in any conversation with a police officer, friend or relative in that environment. In other words, if a suspect or defendant is in a police station, he/she has to assume anything he/she says will be recorded and used against him/her in court.

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At trials in criminal cases, the state will attempt to use whatever evidence it can to show that the defendant is guilty of the crime(s) with which he/she is charged. What such evidence consists of depends on the nature of the case. For example, in a recent case near Jacksonville, Florida, the defendant was charged with multiple counts of lewd or lascivious molestation, a very serious felony charge. After the allegations came out but before the arrest, the defendant apparently tried to commit suicide with pills. At the trial on the lewd or lascivious molestation charges, the state brought out that the defendant tried to commit suicide. The criminal defense lawyer objected to that evidence, but the court allowed it.

According to the court, the state is permitted to introduce evidence that a person is trying to evade prosecution for a crime(s). Under the Florida rules of evidence, acts of the defendant which tend to show his/her consciousness of guilt are normally admissible at trial. Common examples of this are when a person tries to run away from an arrest or conceal him/herself from being located by law enforcement. However, there have also been examples where a suspect or defendant has attempted suicide after learning of criminal allegations or being arrested. In those cases, the state may be permitted to tell the jury about the suicide attempt and basically argue that the defendant tried to commit suicide because he/she knew he/she was guilty and wanted to avoid prosecution. Vague comments about possibly committing suicide may not be admissible at trial if they are not serious, but an actual suicide attempt may very well be admissible in a criminal trial, and the state will use it to argue the suicide attempt was an attempt to avoid being prosecuted by someone who knows he/she is guilty.

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In criminal cases in Florida, hearsay evidence is defined as evidence of an out of court statement offered in court to establish the truth of what was stated. The general rule is that such hearsay evidence is not admissible in court. However, there are many exceptions to this general rule, and many lawyers confuse the hearsay rules by assuming that all out of court statements are hearsay. Even when hearsay statements are admissible, they are often admissible for certain purposes and cannot be used to establish key facts in a criminal case on their own.

As an example, in a felony battery case near Jacksonville, Florida, the defendant was charged with hitting the victim who did not testify at trial. The state presented a witnesses who said he saw the defendant hit the victim. The police officer also saw the defendant hitting a woman but was only able to identify her by the Florida driver’s license she showed him at the scene of the battery. As a result, the only identification of the victim was the hearsay statement of the police officer as to the information on the woman’s driver’s license. The statement of a person as to the identity of another not know to him/her is hearsay as it is based on a “statement” from an identification card.

Because the state could not prove the identity of the victim without this hearsay testimony, the battery conviction was reversed. In a battery case or any crime against a person, the identity of the victim is an essential element of the case and must be proven by the state beyond a reasonable doubt. If the state cannot prove this element with admissible evidence, the case should be dismissed.