Articles Posted in Evidentiary Issues

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.

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.

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.

When criminal defense attorneys handle bond hearings, they may not call witnesses on their own, and the state may not call witnesses for the criminal defense lawyer to cross-examine. At bond hearings, the issue to be decided is the bond amount the defendant needs to post in order to be released from jail while his/her case is pending. The judge is supposed to consider whether the defendant is a risk of fleeing the jurisdiction and/or missing court, is a danger to the community, is a risk to influence witnesses and other factors. At many bond hearings, the criminal defense lawyer and the prosecutor will state their respective positions to the judge and ask for the bond amounts they believe are appropriate. These bond hearings are often done without any witnesses. However, each side can call witnesses to testify at a bond hearing. They can be witnesses who know nothing about the case but know the defendant, or they can be witnesses who do not know the defendant but are familiar with the facts of the case.

When witnesses do testify, the lawyers typically do not consider the fact that the transcript of their testimony may be read at the actual trial. Some criminal defense lawyers may just focus on the bond issues which are not necessarily related to the facts of the case itself and the guilt or innocence of the defendant. Other criminal defense attorneys may use a bond hearing as an opportunity to cross-examine a witness on the other side with the idea that he/she can lock that witness in to a statement favorable to his/her client’s side to be used as impeachment in case that witness tries to testify differently later at trial.

However, it is possible, when a witness is testifying about key aspects of the case at a bond hearing, that the bond hearing testimony is the only testimony that will ever come from that witness and it will be read back to the jury at the trial without that witness showing up. In a recent murder case south of Jacksonville, Florida, the state had a witness to the murder testify at the bond hearing to key facts about the murder which incriminated the defendant. When the trial was scheduled many months later, that witness was gone. He had been threatened after testifying at the bond hearing and told the state he was too scared to testify at the trial. The state attempted to locate him, but they were unsuccessful. Since they could not locate the defendant and bring him to trial, the state moved the court to read the transcript of his testimony from the bond hearing.

In Florida, communications between a lawyer and his/her client are general privileged. This means that neither the state, the judge, the jury, the other party nor anyone else has a right to discover what has been said or otherwise communicated between a client and his/her attorney.

This is obviously crucial in criminal cases as the client often relates critical, and sometimes very damaging, information to the lawyer. Of course, the attorney-client privilege also applies to personal injury, civil, divorce and other legal cases where important, confidential information is routinely discussed.

This attorney-client privilege applies even before the client actually retains the lawyer or if the prospective client decides not to retain a lawyer at all. Most often, before a person decides to hire an attorney, he/she will schedule a meeting to discuss the case and get familiar with each other. Important matters about the case that the client wishes to remain confidential are often discussed. The person may decide not to hire that lawyer. The person may speak with several lawyers before deciding upon one of them or none of them. In these instances, the attorney-client privilege remains intact, and the lawyers are not permitted to disclose what was discussed with the person even if the person never retains that attorney for any reason.

In Florida, a police officer may have a recording device in his/her vehicle. This obviously becomes important if the defendant makes statements after an arrest while sitting in the police car, whether to the officer, to another person detained in the vehicle or in any other context. Can the state use the secretly recorded conversations of a defendant in a police car at the trial?

In a recent robbery case south of Jacksonville, Florida, the defendant and his friend were stopped by a police officer who suspected them of committing a robbery nearby. The police officer put both of them in the back of his police car. In the back of the police car, the defendant made incriminating statements about the robbery in a conversation with his friend. These statements were recorded and used by the State against the defendant at the robbery trial.

The criminal defense lawyer tried to prevent the statements from being admitted at trial. He argued that the statements were hearsay and testimonial as they were obviously recorded to be used against a defendant at trial.

In criminal cases, the state may try and speak with the defendant’s spouse to obtain critical evidence against the defendant. However, in Florida there is a spousal privilege which limits the state’s ability to obtain testimony from one spouse against another spouse who is charged with a crime. However, this spousal privilege has limitations. There are instances where a spouse can testify against his/her spouse in a criminal case.

What is protected are confidential communications between the spouses. Even if the spouse/witness wants to testify to what the defendant/spouse told him/her, the defendant can prevent the spouse from testifying to any confidential discussions and communications between the two. For instance, if a defendant is charged with robbery and before the alleged incident, the defendant tells his wife in the privacy of their home that he really needs money and he’s going to go out and get some, that would be a confidential communication that the state could not use against the defendant.

The spousal privilege is a well-recognized privilege in Florida, but it is not absolute. The communication must be confidential for it to be protected. If a spouse admits to incriminating information to his wife but also in front of a third party, the statement is not confidential and it is not privileged. If the defendant makes an incriminating statement to his wife and tells her she can share it with another person, or the defendant shares it with another person, the statement is no longer confidential and is unprotected.