“Live streaming” is a popular way to share your life experiences with the world. It is a wonderful marketing tool. It makes the world a smaller place.
Long before smart phones that could “live stream,” people had to communicate in vastly different ways. Communication was more purposeful and less careless. People would write letters about their experiences. People would call people far away on the telephone and tell their story. Nowadays with the push of a button, people can share their experiences in “real time” for the world to see (and record).
“Live streaming” committing a crime sounds dumb. So why then did hundreds of people “live stream” and record their involvement in the insurrection? If you can answer that question, then you are smarter than me.
“Live streaming” can a be a useful tool for shedding light on injustices. It can also back-fire and create unwanted evidence against the live-streamer. It all depends on the context.
Putting aside whatever political persuasion one might believe in, committing a crime and broadcasting the evidence from their own phone might be one of the dumbest things an accused could ever do. Although some of the insurrectionists mistakenly believed that they were justified in their actions, what they failed to understand is that there is no defense to those open admissions of their crime.
The video evidence makes for an open and shut case. While the people may not have intended to behave a certain way or thought that they were committing crimes, the videos show various crimes. It is all the prosecutor needs to prove the case.
For instance, if the “live stream” shows the person entering a restricted room the in capitol, then the person has created the evidence to proves beyond a reasonable doubt that they trespassed. If the person “live streamed” them picking up and walking off with a lectern, then the person created the evidence that proves beyond a reasonable doubt that they committed some type of theft. If the person “live streamed” themselves fighting with capitol police, then the person created the evidence that proves beyond a reasonable doubt that they committed a battery. And so, on and so forth.
Let me explain. Hearsay is classically defined as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”[i] Typically, hearsay is inadmissible as evidence for various reasons.[ii] There are a couple dozen exceptions to the hearsay rule. These exceptions are traditionally accepted concepts that make the “out-of-court statement” reliable and, therefore, admissible in court as evidence.
The admission of the party opponent is one such exception.[iii] The scope of the exception can be massive. The admission or statement can have been made to anyone or anytime before, during, or after the litigation as long as it may prove an issue in the case.
Subsection (18) states:
(18) ADMISSIONS.—A statement that is offered against a party and is:
(a) The party’s own statement in either an individual or a representative capacity;
(b) A statement of which the party has manifested an adoption or belief in its truth;
(c) A statement by a person specifically authorized by the party to make a statement concerning the subject;
(d) A statement by the party’s agent or servant concerning a matter within the scope of the agency or employment thereof, made during the existence of the relationship; or
(e) A statement by a person who was a coconspirator of the party during the course, and in furtherance, of the conspiracy. Upon request of counsel, the court shall instruct the jury that the conspiracy itself and each member’s participation in it must be established by independent evidence, either before the introduction of any evidence or before evidence is admitted under this paragraph.
§90.803(18), Fla. Stat. The “live streamed” video is the statement and qualifies as an admission against the defendant.
The Miranda warnings are based upon an understanding that ordinary citizen need to be advised of their rights before they make a statement in custody.[iv] However, the warnings do not apply to Joe-citizen on the street committing a crime. By virtue of being an American citizen, one is warned, and it is understood (whether one actually understands) that anything you say or do can be used against you as an admission.
“Live streaming” one’s crimes is neither cool nor smart. In fact, it is one of the dumbest things a person can do. So, think twice before “live streaming” your participation something questionable. You have been warned.
Anthony Candela is the Trial Dog and a three-time Board-Certified criminal trial attorney. He opened the Candela Law Firm, P.A. in 2014 and handles criminal trials and appeals (as well as estate planning, wills, and trusts). He received his J.D. from Duquesne University School of Law in 2000 and his B.A. in Political Science from King’s College in 1996. As an expert in criminal law and procedure, he has tried over a hundred cases to verdict. Since 2008, he has been certified and recertified by the Florida Bar in Criminal Trial three times. He has also argued several dozen appeals. In the federal system, he is admitted to the Middle District of Florida and the Eleventh Circuit Court of Appeal. #candelalawfirm #thetrialdog @candelalawfirm @thetrialdog
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No. 21-010 Stop Live Streaming Your Crimes
[i] §90.801(1)(c), Fla. Stat.
[ii] §90.802, Fla. Sta. The idea is that hearsay evidence is inherently unreliable. Additionally, in a criminal trial, the declarant (or person that made the statement) is not present in court to be subject to (a) the oath and (b) cross-examination, and for both of these reasons its admission is closely regulated as to not run afoul of the Sixth Amendment.
[iii] §90.803(18), Fla. Stat.
[iv] Miranda v. Arizona, 385 U.S. 436 (1966)