Articles Posted in Evidentiary Issues

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.

In any driving under the influence of alcohol or drugs (DUI) case in Florida, the state has to prove that the defendant was actually driving, or in actual physical control of, the vehicle. That seems obvious, but it may be problematic for the state in situations where the police respond to an accident and the drivers and others are out of the vehicles at the time. Accidents happen quickly, and sometimes, no one actually sees who is driving. Then, one may think it is as simple as the police officer asking who was driving. However, the initial discussion between the police officer and the driver about the accident is often inadmissible in a criminal case for DUI.

This is referred to as the Florida accident report privilege. This Florida law says that a driver is required to tell the police what happened after an accident. However, because this requirement affects a person’s right to remain silent if there is possibly criminal activity involved, any statements the driver makes about the accident during the accident investigation phase are not admissible in a criminal case. When the state cannot use the statement by the driver that he/she was driving the vehicle, the state may have a very hard time actually proving the suspect was driving a vehicle.

Even where the statement that a suspect was driving is not protected by the accident report privilege, the statement is still not admissible in a DUI trial unless and until the state can prove that a crime was committed by substantial evidence independent of the statement. In other words, if there is insufficient evidence to prove that the suspect may have committed a DUI and the suspect then makes incriminating statements about committing a DUI, that statement will not be admissible in a DUI trial. So, before such a statement can be used against a defendant in a DUI trial, the state must have other evidence that he/she committed the crime. Going back to the original point, when an accident occurs and the police show up after the fact, a suspect’s statement may be thrown out of a criminal trial if there are no solid witnesses or other evidence establishing that a DUI was committed.

Consider a situation where a crime occurs and the police believe they know who committed the crime. They obtain an arrest warrant, but they are not able to locate the suspect for some time. When they do find the suspect, the suspect runs from the police. At the defendant’s trial for the original crime, is evidence that the defendant ran from the police admissible at the trial for the original crime in Florida? It depends.

When a person runs from the police when the police are arresting that person for a crime that previously occurred, the prosecutor may not be allowed to introduce evidence of the defendant’s flight from police at the trial. It largely depends on how much longer the arrest, and the running from the police, occurred after the initial crime because the key question is whether it can be shown that the defendant ran from police due to consciousness of guilt for this particular crime. In other words, if the police are looking for person X for a robbery that occurred previously, can it be shown that person X ran from the police because he knew he was guilty of that robbery?

Obviously, one of the factors is how much time elapsed between the crime and the flight from police. The more time between those two events, the harder it is for the prosecutor to establish that the defendant had a reason to believe the police were looking for him for that particular crime. If the flight occurs a couple of days after the crime, it is more likely that evidence of the defendant running from police will be admitted at the trial. However, if it is months or years later, such evidence should not be admissible at the trial absent other facts suggesting the defendant knew the police were after him/her for that particular crime.

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