Evidentiary Issues

“Private” Conversations at the Police Department Can Be Recorded and Used Against the Defendant

Published on: February 20, 2013 | by Lasnetski Gihon Law

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.

Defendant’s Suicide Attempt Used Against Him at Trial in Florida

Published on: January 13, 2013 | by Lasnetski Gihon Law

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.

Public Records/Hearsay Not Sufficient to Establish Identity of Victim in Criminal Case

Published on: December 7, 2012 | by Lasnetski Gihon Law

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.

Witness Testimony at Bond Hearing May Be Used at the Trial

Published on: May 28, 2012 | by Lasnetski Gihon Law

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.

The Attorney-Client Privilege in Florida

Published on: May 10, 2012 | by Lasnetski Gihon Law

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, Recorded Conversation in Police Car Can Be Used At Trial

Published on: February 18, 2012 | by Lasnetski Gihon Law

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.

The State Cannot Force Spouse to Testify About Conversations With Defendant in Criminal Case

Published on: October 12, 2011 | by Lasnetski Gihon Law

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.

Statement of Dying Victim May Be Admissible in Criminal Trial

Published on: October 6, 2011 | by Lasnetski Gihon Law

Most people are familiar with the word hearsay as they have heard the term on TV shows and other places. The evidentiary rules regarding hearsay are often misunderstood, not just by the general public, but also by lawyers. Basically, hearsay is a statement by a person not in court that one side is attempting to use in court to prove the truth of the matter referenced in the statement. As a simple example, if Bob comes in to court and tells the jury that Steve told Bob that Defendant committed the robbery, Bob’s testimony is hearsay. As a general rule, hearsay is not admissible in court because the Defendant has a right to question Steve about what he saw, and he cannot do that if Steve is unavailable and the jury only hears what Steve allegedly saw through Bob’s testimony. However, there are exceptions to the hearsay rule.

One exception is called the dying declaration. In a recent murder and armed robbery case south of Jacksonville, Florida, shortly after the incident, the police saw the victim in the hospital. The police officers showed the victim a photo lineup which included the defendant’s picture. The victim could not speak, but he was apparently able to blink signifying an affirmative response when the police officers showed the victim the picture of the defendant. The victim later died, and the police officer came to court during the defendant’s trial and testified the victim blinked while looking at the defendant’s picture in the photo lineup to indicate the defendant was the person who robbed and shot him.

The criminal defense attorney argued to keep the evidence of this identification out of court claiming it was inadmissible hearsay. Inadmissible hearsay does not have to be an actual statement; it can also be an assertion like a gesture, pointing or blinking. However, the court disagreed. Under the dying declaration hearsay exception, if a person makes a statement or assertion while he/she reasonably believes his/her death is imminent and certain and the statement is concerning the cause of that death, that statement may be admissible hearsay in court. The witness does not need to expressly state that he/she knows death is imminent and certain if it is apparent from the circumstances that the witness would reasonably believe he/she is about to die.

Prior False Accusation in Sexual Battery Case May Not Be Admissible at Trial

Published on: April 25, 2011 | by Lasnetski Gihon Law

In Florida, in a lewd or lascivious molestation or battery case, or a sexual battery case, the credibility of the victim’s testimony is often the most critical factor in the case. In many of these cases, the victims are children who may be less predictable in the things they say and may not appreciate the importance of telling the complete truth in a legal proceeding. In any case, but particularly in lewd or lascivious molestation or battery cases, the criminal defense lawyer’s job is to question the victim to determine the accuracy of the victim’s statement incriminating the defendant.

However, the criminal defense lawyer does not have free reign to ask the victim any questions and bring out bad things the victim may have done in the past. One area that would seem to be critical to determine the credibility of the victim would be prior, similar false accusations. For instance, if the victim is saying the defendant in the present case sexually assaulted her, should the criminal defense attorney have the right to inform the jury that the victim made a similar accusation of sexual assault against the defendant’s brother two years earlier that proved to be false? It would seem like this would be important information for a jury to know about the victim. However, a recent Florida Supreme Court case said that such information would likely be inadmissible at a trial. The general rule is that the criminal defense lawyer may not bring out evidence about the victim’s prior bad acts, including similar but false accusations about another person.

The criminal defense lawyer can attack the credibility of the victim, but he/she is limited in his/her methods. The criminal defense attorney can bring out the fact that the victim has a prior conviction(s) for a felony or a misdemeanor crime that involved dishonesty. For instance, if a person made a similar, false accusation of a sexual assault about someone else and was arrested and convicted for false report of a crime, the criminal defense lawyer would be able to inform the jury that the victim has a prior conviction. However, that is rare when dealing with young victims. The criminal defense lawyer also has the right to bring out any facts that tend to show the victim’s testimony is biased or the victim has a motive to be untruthful. Therefore, if the victim has multiple false accusations against other people or one prior, false accusation against this defendant, that evidence should be admissible at the trial to show the victim is biased towards the defendant or has a motive for lying in this context.

Can the Prosecutor Use a Defendant’s Attorney to Testify Against the Defendant in a Criminal Case?

Published on: April 19, 2011 | by Lasnetski Gihon Law

Most people even marginally familiar with criminal law and evidentiary issues understand that there is a special relationship and privilege between a lawyer and his/her client and that a defendant’s lawyer would never be able to testify against the client in a criminal trial. However, that seemingly obvious conclusion may not always be so clear. It is fundamental that the prosecutor is not allowed to have a defendant’s lawyer testify against the client in a criminal case. However, whether the lawyer is actually that defendant’s lawyer leaves room for interpretation.

This ambiguity most often comes up in a case where a company and an employee(s) of the company are being investigated. A question may arise as to whether the defense lawyer represents the company or the employee. For the employee, it may be difficult to tell. The employee may believe the lawyer is his/her lawyer, but that lawyer may actually represent the company instead. In many cases, their company’s and the employee’s interests are the same making it difficult to distinguish the actual client. If that is the case, the communications between the employee and the company lawyer may not be privileged and confidential and may be accessible by the prosecutor.

In a pending criminal case out of Philadelphia, a CEO of a company was convicted of obstruction of justice and sentenced to 18 months in federal prison. During the trial, the prosecutor was allowed to call the CEO’s former lawyer to testify as to certain communications between the two that the CEO thought were privileged and confidential at the time. According to the CEO, he felt that he engaged the defense lawyer to be his individual lawyer, in which case all communications between the two should be privileged and confidential. However, the government alleged that the lawyer represented the company and was not the CEO’s individual lawyer in which case the lawyer-client privilege should not apply. The defense countered that the CEO reasonably believed that the lawyer was his individual attorney and the client’s/defendant’s belief controls whether the attorney-client privilege is in effect.