Years ago, a wise judge used to pose the following question to defendants who demanded their constitutional right to represent themselves in trial. He would ask politely, “sir, as you stand here right now, if your appendix burst, would you operate on yourself?” The question was rhetorical and barely escapes its own statement as to is ridiculousness. Yet, many individuals simply are their own worst enemies.
It is unacceptable in a criminal investigation to create evidence. Period. It should not even be up for discussion.
When an assistant, paralegal, or subordinate attorney makes a mistake – you as the attorney needs to own it. Own it as your own because you are the attorney, and it is your own mistake. It is your bar number on the pleading or motion. It is your signature on the document. It is your responsibility. Period. End of sentence. It is non-negotiable. Even if your assistance does something unforgivable like faxing a picture of his butt to the court with “kiss it” written on it – – you as the attorney must own it because you are the attorney, and it is your mistake.
My advice is simple – treat all the court report personnel with the utmost respect and you will get the same treatment from them. While the judge might not rule in your favor, the court room personnel will not think you are a jerk. This kind of respect works both ways and you will thank me down the road. You are forewarded. Plus, over the years some of my best friends I have ever made are the court personnel.
The defendant has entered a plea of not guilty. This means you must presume or believe the defendant is innocent. The presumption stays with the defendant as to each material allegation in the charging document through each stage of the trial unless it has been overcome by the evidence to the exclusion of and beyond a reasonable doubt. To overcome the defendant’s presumption of innocence, the State has the burden of proving the crime with which the defendant is charged was committed and the defendant is the person who committed the crime. The defendant is not required to present evidence or prove anything.
Nobody (and I mean nobody) wants to think about their death or what should happen when to their assets when they die. The obvious problem is simple – once you are dead, you cannot do anything to help your family because you are gone. So, the only way to assist them is to do the planning while you are alive and make an estate plan. Find an attorney. Start with a will. It is money well spent. Remember, “There is no dollar sign on a piece of mind…” “Chicken Fried.” Home Grown. Zac Brown Band. (2005)
Abstractly, almost anyone understands the point, but when your life or liberty are at stake – -testifying goes from an uncomfortable idea to being flat terrifying. Think public speaking being considered scarer than death. Now turn that public speaking fear “up to 11,” and you have testifying to save yourself or clear your name.
In Florida, a defendant may challenge the charging document via a (c)(4) motion to dismiss. Florida Rule of Criminal Procedure 3.190(c)(4) defines the nature of the motion.[i] The motion is like a summary judgment in civil court but does not carry the same authority as a “judgment” does in civil or criminal court.[ii] Nonetheless, theContinue reading “That Does Not Sound Like A Crime: How to Strategically Use a Motion to Dismiss”
The established test to determine whether consent was voluntary (versus involuntary and, therefore, acquiescence to police authority) is for the court to consider the “totality of the circumstances.” Analyzing the actions of the accused from the reasonable person standard, the trial courts are to look at three factors to determine whether the consent to search was voluntary: (1) the time and place of the encounter, (2) the number of officers present, and (3) the officers’ words and actions; a court analyzes these factors from the perspective of a reasonable person, untrained in the law, deciding whether he or she is free to end the encounter.[
Inevitably, discovery disputes arise in these criminal cases. These types of errors are too numerous to list, but usually take the form of an updated report that is inadvertently not produced to the defense or a new witness is added or substituted into a witness list at the last minute or a witness offers new testimony at trial that was not part of their report or deposition testimony. When a discovery violation is alleged, it is the duty of the trial court to conduct a hearing to determine “whether the state’s violation was trivial or substantial, and most importantly, what effect, if any did the violation have on the ability of the defendant to prepare properly for trial.” The violation and hearing on the matter is a referred to as a Richardson hearing.