Stay Away from Stipulations in Criminal Court

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Recently, I briefed several appellate cases where the defense attorney inexplicably stipulated to pertinent facts that ultimately assisted in convicting their clients. For the life of me, I cannot understand how or why this occurred. The defense attorney’s main objective is to force the state to prove its case. “Due process requires that the State prove an accused guilty beyond a reasonable doubt as to all the essential elements of guilt.”[i] Not the other way around.

While stipulations are very useful in civil cases, these should be rarely used in criminal case. The reason is because the stipulation relieves the state of its burden as to proving a piece of evidence that it needs to prove in the trial or hearing to prove the charge (or an enhanced penalty (like the predicate offenses, fingerprints, no pardon/clemency, and penitentiary pack to prove up for the enhanced sentence under the prison releasee reoffender (“PRR”) statute)).[ii]

Why would the defense attorney want to make the state’s job easier? If you can answer this, then you are way smarter than me. All kidding aside, this is why the general rule concerning stipulations in criminal court is this: a defense attorney should not be stipulating to any evidence unless there is some fantastic reason for that stipulation. The application of the exceptions is often on a case-by-case basis.

For instance, an element of homicide is the legal identity of the victim. In many instances, the prosecution will introduce a photograph of the decedent via a family member or friend. The testimony is very emotional. As a way of deflating or de-escalating the situation, a seasoned defense attorney will stipulate to the identity of the decedent to avoid the emotion testimony attempting to save some of the jury’s ire. This is a sound strategy as the defense is getting something from the stipulation (and not simply making the prosecution’s case easier). A quid pro quo and not a free give away.

Remember, the defense attorney role is not to simply go along to get along. While the defense attorney does not need to be disagreeable to be disagreeable, the attorney does have a professional responsibility to the client, to the system, and to American justice to force the State to prove the case. Stipulating for no purpose or because it is easier on the state, defense attorney, judge, or jury, or because the judge wants things to move along faster is not a valid reason. It is lazy and a complete abrogation of the defense attorney’s responsibilities.

Another example concerns prior criminal convictions where the prior conviction is an element of the offense. A common example is the charge felon in possession of firearm. In these instances, the defense attorney may want to stipulate to the criminal offense to avoid the jury hearing that the client is convicted of armed robbery.[iii] Keeping the fact that the defendant is a convicted of armed robbery might help in the long run or maybe not, but it is far better to have the jury wonder what the felony offense was than to hear that the guy who should not have a gun was once a robber with a gun.

While there are some extremely limited instances where stipulation may be advantageous to the defense in a quid pro quo, the general rule must be that stipulations should be mostly rejected. Otherwise, what is the purpose of the jury trial? And no, the question is not rhetorical. If the purpose of the jury trial is to make the government prove its case beyond a reasonable doubt, then how can any defense attorney be providing “effective assistance of counsel” under the Sixth Amendment if that attorney is stipulating to the evidence that will be used to convict their client? The question scarcely escapes its own statement. In criminal court, defense attorneys should rarely stipulate to the introduction of evidence.

Make no mistake, I have seen defense attorneys stipulate to major facts in cases like (1) that the substance was cocaine; (2) that the defendant was present at the time of murder; (3) that the defendant qualifies for an enhanced sentencing under a complicated sentencing enhancement statute; (4) that the defendant was under the influence at the time he was driving; (5) that the finger prints on the firearm belong to the defendant… and on and on. In my humble opinion, these are major errors in the attorneys’ professional judgment, demonstrate a severe lack of skill, knowledge, and/or experience, possibly demonstrate an apathy for their client, and most likely constitute “ineffective assistance of counsel” requiring intervention by a post-conviction court. It is that serious.

As a practice point, the other major reason why stipulations to evidence should be thoughtfully entered into is that a stipulation to evidence usually waives any objections and/or fundamental error arguments on appeal. Think about it this way: if the criminal defense attorney and defendant agree to stipulate to a specific piece of evidence, then the defendant will not be able to challenge the admission of that evidence on appeal and most likely will not be able to collaterally attack the admission of that evidence by stipulation in a post-conviction motion.[iv] In other words, stipulations to evidence give up any future challenges to the evidence stipulated to for admission. It is a double whammy to the unsuspecting defendant (who is relying on his/her attorney to provide competent counsel.)

It is not fair nor professional. I used the same example a lot to explain how ridiculous this sounds. For instance, if you went to the local emergency room with a loved one and the ER doctor came out and said, “hey, I think so-and-so has appendicitis and needs surgery, but I have never done surgery on an appendix that has burst, but what the hey – I am going to go poke around and give it the old college try” – – – I am fairly certain that most people would not allow that to occur, would take their loved one elsewhere, or find someone with a clue. Stipulating to evidence (without a sound purpose as explained above) is akin that type of absurd error. The real problem is it happens way too often to unsuspecting defendants who have no way of correcting the problem.

As stated above, there are limited exceptions where stipulations are acceptable in trial for a criminal defense attorney to employ (like where there is some quid pro quo exchange between the state and defense which provides some benefit to the defendant). Otherwise, there is no value for stipulation because it damns the defendant down the road forever on that issue and relieves the state of its burden to prove the charge beyond a reasonable doubt.

The defense attorney is not supposed to put his client on the Viking burial ship, push it out towards the middle of the lake, and then fire the flaming arrow at it. Stipulating to evidence to make things easier in a criminal trial is just like sending your client out on the Viking burial ship (just they are not dead yet).

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. 21-019 Stipulations


[i] See In re Winship, 397 U.S. 358, 361, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), cited in State v. Cohen, 568 So.2d 49, 51 (Fla.1990). Burnette v. State, 901 So.2d 925, 927 (Fla. 2d DCA 2005).

[ii] See §775.082(2), Fla. Stat.

[iii] See Old Chief v. United States, 519 U.S. 172, 117 S.Ct. 644, 136 L.Ed.2d 574 (1996) (Held: Where the prior conviction is an element of the crime charged, evidence of a defendant’s prior conviction may not be admitted if the defendant is willing to concede to the fact of the conviction.).

[iv] A stipulation to the evidence under the case law would have waived the fundamental error argument. In this case there was no stipulation; the fundamental error argument can be raised. Louidor v. State, 162 So.3d 305 (Fla. 3d DCA 2015), rehearing denied (at trial inadmissible DVD admitted via stipulation waived the fundamental error argument).

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