Articles Posted in Evidentiary Issues

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.

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.

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.

With cell phones that have the capability to record audio and video, people record other people’s communications all of the time. However, that may not be legal in Florida. There is a statute that addresses this issue, but its interpretation is not clear. The Florida statute basically says it is illegal to record another person’s conversation without that other person’s knowledge and consent. This means you cannot call someone on the phone and record the conversation without telling the other person you are recording the conversation and getting his/her agreement. There are exceptions to the rule, and it is not exactly clear how the exceptions apply.

Of course, as indicated, knowledge and consent of the other party makes recording legal. Also, there is a legal exception for law enforcement officers to intercept an oral communication when the officer is a party to the conversation and for law enforcement to record a conversation involving other people if one of the parties agrees and it is for the purpose of obtaining evidence for a criminal case.

Based on this, it is clear that the police are permitted to record a conversation between Person A and Person B if Person A knows about the recording and agrees to it and the purpose is to discover evidence for a criminal case. This is what is commonly known as a controlled call. The police often use this technique to have a trusted friend or family member who is working with the police call a suspect and try to get the suspect to make incriminating statements while they record the call. As long as the suspect’s friend agrees to the recording, it is legal even though the suspect obviously will not be told of the recording or the police involvement.

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.

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.

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.

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.