Who is the Most Important Person in a Criminal Courtroom? Psst. My Answer Might Surprise You.

When I used to mentor and teach younger criminal defense attorneys, I would pose the following question, “Who is the most important person in the court room?” It was not uncommon to get these answers in some variation: the judge, the accused, the prosecutor, or the defense attorney. While these seem like obvious choices, let me explain why these are all incorrect answers.

Make no mistake, I am not trying to diminish the prestige or academic achievements of the attorneys (who went to school for years, studied hard, and passed the bar exam to become attorneys), nor am I trying to discount the work that attorneys do in the court room, but this will all make sense when I am finished explaining. As for the accused (also known as the defendant), admittedly the criminal justice system cannot proceed forward without a defendant and may be the reason everyone is actually in the court room, but in many instances the defendant has little to do with the court room operation.

If you said the judge, then you might be surprised to learn that is not correct either. While the judge is important in any criminal court room, the answer is the court personnel, specifically, the court clerk, court reporter, and bailiff. The court clerk and court reporter are tied for the most important person in the courtroom. The court room bailiffs are not too far behind in terms of importance. The yeoman’s share of the labor done in any criminal courtroom is completed by these individuals.

I am sure that you are confused and asking yourself – – why are the court clerk and the court reporter so important? Let me explain. Without the court clerk and court reporter, nothing gets done in a criminal court room. Nothing.

In court rooms around America, court clerks ensure that the court room functions properly. Court often will not start without a clerk (and court reporter). The clerks are hard-working individuals that do everything to make sure that the files (whether paper or electronic) are up-to-date and that the judge’s docket runs smoothly. They do this every day. Judges will tell you if you ask that they probably could not run their docket without a competent court room clerk.

Keep in mind, the courtroom clerks bust their fannys to make things go in the courtroom. They also ensure that the record is complete. They are responsible for making sure that the all the court documents are correct – – including making the notes in the system about what the judge ordered and said in court. They confirm the judgment and sentences handed down from the judges are correct. During hearings, they collect and safeguard any physical evidence admitted. Essentially, anything that happens in a criminal courtroom happens because a courtroom clerk made it happen (even arrests on warrants or capiases). And now you know.

The same holds true for the court reporter. Whether the court reporter is a true stenographer or a digital report, it does not matter. It is their job to make sure that everything that is said during the docket, hearing, or trial is captured and accurately taken down. This is no easy task.

Think about it this way – it is their job to clearly record everything that is said no matter how fast or loud someone is speaking. And some people are next to impossible to understand because they speak too fast or mumble or are a “low talker”…etc. Convictions have been overturned on appeal because the transcript from the courtroom is unintelligible because the court reporter could not take down what is said for whatever reason. And there is no DeLorean to go back in time[i] and figure out what was said later on. Literally, it is that important.

In a criminal courtroom, the bailiffs are the next most important personnel. The bailiffs ensure that the accused and defendants (and sometimes the victims or other people) do not become aggressive or belligerent in the courtroom. People do crazy things and sometimes act out violently. The bailiffs make sure that everyone, including the defense attorneys, stay safe.

Why is all this important? Well, let me explain. Over my twenty-years of practice, I have seen younger and older attorneys (whether prosecutors or defense attorneys) make the serious mistake of mistreating and look down at the court personnel. For a myriad of reasons, this is wrong. I caution you it will only cost you in the end. It goes without saying that these are hard-working human being just trying to do their jobs to earn a living so that can support their families. They do not need your gruff or nonsense for whatever reason. So keep it to yourself. Your bad day could get a whole lot most hostile if you are disrespectful to these dividuals (not to mention potentially upset the judge who won’t take kindly to mistreating the staff).

To begin, it is just wrong to mistreat these individuals. Every day, the court personnel bust their butts to make the courtroom function. Additionally and equally important, when there is a break in the action or the docket is over, these personnel have the ear of the judge. If you are disrespectful, rude, or condescending to these personnel, then you can take it the bank that the judge will be hearing about it. This is not to say that the court personnel are tattling on the attorneys, but judge will ask or the personnel will tell. In any event, why put yourself in that position? The question scarcely escapes its own statement. And this is not to say that the judge won’t follow the law, but they are human beings too and usually will not tolerate mistreating the courtroom personnel.

I have seen with my own eyes how much control the court personnel have in terms of the day-to-day operation. In the days before everything was digital and stored on-line, if an attorney was rude and disrespectful to the court clerk, then it was not uncommon for the court file that attorney needed to go mysteriously missing. I am not accusing the court clerk of derogation of duty, but while the file was being located, the disrespectful attorney would simply have to sit (shamefully) and wait for the court file to be found and brought to the courtroom. This could take a few minutes, hours, or even a day or two.[ii] Sometimes, the attorney would be asked to come back later.

“I can’t hear you. Please speak up.” “Slow down.” “Judge, I can’t hear him.” It is not uncommon for an experienced court reporter to ask for the attorney or witness to “speak up” or “slow-down” or whatever command is necessary to ensure that the reporter was able to properly capture what was being said. That is their job and they usually do it exceptionally well.

On the other hand, it is entirely another thing when the attorney (who has been rude to the court reporter) “earns” the court reporter’s enthusiastic precision for their job. It usually does not ends well for the attorney. While legitimate interruptions are necessary, a court reporter does not always need a wide berth to hear and take down what is being said. They have been doing their job for years and are usually good at understanding what is being said in the courtroom. In many cases, the court reporter simply knows because they are a professional. But, if you bust their chops and are rude to them, then watch out because they will really do their job by calling out the attorney for not being able to hear them or speaking too fast.[iii] In most instances, they will be doing their job. Many witness examinations can be hobbled in a second by an interrupting court reporter doing their job.

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.

Anthony Candela is the Trial Dog and a Board-Certified 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

www.candelalawfirm.com

If can assist you with any criminal questions, then please do not hesitate to contact http://www.candelalawfirm.com or Anthony Candela at (813) 417-3645 to discuss your case.

The purpose of this blog is purely education/information and should not be viewed as creating any attorney-client privilege between the reader and author.

If you have any questions, comments, or concerns, then please feel free to leave me a comment below and thank you reading this blog article. You can also check out the author at his profile at AVVO.com (Candela)

Image source: pexels.com

No. 20-019


[i] Back to the Future. (1985)

[ii] I am not implying that the court clerks are interfering in the legal process. In the olden-days, court files did get lost, mislaid, or misplaced from time to time. It is human nature. I am just saying – – sometimes … it just happened to the rudest attorneys in the court room and no one could explain why. Who is to say what really happened, but it just seems odd that the most disrespectful attorneys ended up with missing files. On the other hand, all the nice, polite, and respectful attorneys never seem to have their court files misplaced.

[iii] These are legitimate concerns. I am by no means saying that court reporters are purposefully interfering with the attorney or the proceeding, but there are things that the court report might let slide will defintely be called out in terms of super-thoroughness instead of allowing the flow of questioning. Again, these type of hyper-thoroughism never seemed to happen to the polite attorneys, only the rude ones. Go figure?

Going “All In” on the Presumption of Innocence

In America, there are four main pillars that constitute our criminal justice system. While these pillars are most likely common knowledge, most Americans fail to recognize their true importance and relevance to our collective freedom. These pillars are the presumption of innocence, the government has the burden of proof, proof beyond a reasonable doubt, and that the accused has the right to remain silent. Each one of these judicial maxims is an institutional juggernaut.

While all these legal principles important, the presumption of innocence seems to be the glue that holds the system together. In terms of a criminal trial, the presumption is not some kitschy catchphrase, marking slogan, or colloquial motto. It is the basis of the American criminal justice system. Without the presumption of innocence framework, it is doubtful the other legal principles would have any real significance and would probably be rendered meaningless. As the keystone of the criminal justice system, it is incumbent upon all Americans to cherish, protect, and guard against any erosion of the presumption of innocence.

The presumption of innocence can trace its humble roots back to the Roman Empire.[i] Over the ages, many different civilizations including the Jews, Muslims, and Catholics have adopted some form of the principle. These civilizations coveted and revered the presumption of innocence making their justice systems legitimate. While our system of justice grew out of the British system, the presumption of innocence is much older than all of Britannia.[ii]

In evidence, there is a concept called a presumption. The idea is this: “a presumption is an assumption of fact which the law makes from the existence of another fact or group of facts found or otherwise established.”[iii] Because someone’s freedom and liberty are at stake, the “presumption of innocence” is recognized as a more powerful presumption called a “presumption of law.”[iv] The magnitude of this statement cannot be overstated for this reason– if the government cannot overcome the presumption beyond a reasonable doubt, then the accused is not guilty as a matter of law and acquitted of the charges.

In other words, the presumption of innocence is this all-powerful aura or cloak that surrounds the accused. It is the counterbalance to the all-powerful government. The government has nearly unlimited resources to prosecute an accused. So, to make the system as fair as possible to the accused (and all persons charged with a crime), the system was designed with a nearly insurmountable presumption – – the presumption of innocence. Any if the government misses the mark (even by an iota) and does not carry its burden beyond a reasonable doubt, the presumption is designed to acquit the accused of the charges.

In Florida, here is an excerpt from the jury instruction:

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.[v]

Remember, the presumption is not a criminal justice formality. Even as the jury listens to closing arguments after all the evidence is presented, the jury is required, mandated, and commanded to presume and believe the accused is innocent of the charges.

As a practioner, I sometimes wonder if jurors really and truly understand how awesome and powerful the presumption of innocence is. It demands an acquittal by design. It commands the jurors to find someone not guilty unless the case is proven beyond a reasonable doubt. That means – even if juror thinks or believes or just knows that the accused did what he was accused of the juror must acquit (otherwise there will have been a miscarriage of justice). Justice cannot be served if the jurors refuse to follow the law.

If a case is not proven beyond a reasonable doubt, do not blame the accused or the system. Blame the government for not doing a better job in terms of presenting the necessary quantum of evidence to conclusively prove the accused’s guilty beyond a reasonable doubt. Remember, the reasonable doubt standard is there to ensure that the juror does not have to guess, speculate, or hypothesize about guilt. The case was either proven beyond a reasonable doubt or not.

And if not, then let slip the presumption of innocence and free the accused because the case was not proven. Justice is served when the system operates as it was designed. Every case comes to the courthouse without any preconceived notions. Justice Thurgood Marshall reiterated that “the purpose of a criminal trial is as much about the acquittal of an innocent person as it is the conviction of a guilty one.”[vi] Contrary to popular belief, criminal trials are also about clearing one’s name and reputation, or making the government put up or shut up.

Anthony Candela is the Trial Dog and a Board-Certified 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

www.candelalawfirm.com

If can assist you with any criminal questions, then please do not hesitate to contact www.candelalawfirm.com or Anthony Candela at (813) 417-3645 to discuss your case.

The purpose of this blog is purely education/information and should not be viewed as creating any attorney-client privilege between the reader and author.

If you have any questions, comments, or concerns, then please feel free to leave me a comment below and thank you reading this blog article. You can also check out the author at his profile at AVVO.com (Candela

Image source: pexels.com

No. 20-018


[i] See Coffin v. United States, 156 U.S. 432, 15 S.Ct. 394, 39 L.Ed. 481 (1895).

[ii] William Wirt Howe, Studies in the Civil Law, and its Relation to the Law of England and America (Boston: Little, Brown, and Company, 1896), pg. 51. “In one of his elaborate orations in the United States Senate Mr. Charles Sumner spoke of ‘the generous presumption of the common law in favor of the innocence of an accused person;’ yet it must be admitted that such a presumption cannot be found in Anglo-Saxon law, where sometimes the presumption seems to have been the other way. And in a very recent case in the Supreme Court of the United States, the case of Coffin, 156 U. S. 432, it is pointed out that this presumption was fully established in the Roman law, and was preserved in the canon law.”

[iii] See §90.301(1), Fla. Stat.

[iv] “The fact that the presumption of innocence is recognized as a presumption of law, and is characterized by the civilians as a presumptio juris, demonstrates that it is evidence in favor of the accused. For, in all systems of law, legal presumptions are treated as evidence giving rise to resulting proof, to the full extent of their legal efficacy.” Coffin, 156 U.S. at 460.

[v] Florida Standard Jury Instruction, Criminal Jury Instruction 3.7 Plea of Not Guilty; Reasonable Doubt; and Burden of Proof.

[vi] United States v. Bagley, 473 U.S. 667, 692, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985).

What Makes a Will Valid in Florida

To begin, if you die without a will, then you die “intestate” and that is not a good way to leave your family. If you die “intestate,” then the bulk of your assets and property will be distributed to your heirs according to a harsh “formula fixed by law” by a trial court.[i] Since you are gone and have not left the court any specialized written instructions, the judge is bound to follow the rigid formula outlined in the statute. The court cannot consider what you may have wanted to do with your property before you died.

Only a validly executed, written will can avoid “intestacy” and protect your final wishes, assets, and property. In this instance, form absolutely matters over substance. For obvious reasons involving fraud, Florida does not recognize handwritten and/or unwitnessed wills.

Additionally, if you pass without any heirs (which is rare), then your property escheats (or is given) to the state.[ii]

On the other hand, if you die having created a valid will, then you die “testate” (or with a will). With limited rules, the creation of a valid will allows you to absolutely control how you want your property disposed of and to whom. Sadly, an estimated 60 percent or higher of people die without any estate plan which includes a will and have no say in the distribution of their property and assets, or who will be the guardian for their children.[iii] It does not have to be this way with a little planning and forethought.[iv]

There are a few simple requirements for a will to be valid in Florida.[v]

The person making the will is referred to as the testator (or testatrix if it is a woman). The testator must be 18 years old or older.[vi] The testator must be of sound mind.[vii] The will must be in writing.[viii] The will must be witnessed by two (2) people. The witnesses must also sign the will as witnesses.[ix] The will must be dated as to when it was created and signed. The name of the executor/executrix (otherwise referred to as the personal representative)[x] of your will. The PR is the person who will go before the court and probate the will. Probate the will means the court process of marshalling all your assets, paying your obligations and debts, and disposing of your property and assets according to your directions in the will. The final requirement is that you must list one substantive provision in the will.

These are all the necessary components of a valid will. Obviously, estate planning is much more involved that the basics. Plus, an estate plan is a living document that will change, grow, and evolve over time. It needs to be reviewed and revisited as life changes occur.

Anthony Candela is the Trial Dog and a Board-Certified 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

www.candelalawfirm.com

If you have estate planning questions, then please do not hesitate to contact www.candelalawfirm.com or Anthony Candela at (813) 417-3645 to discuss your estate plan.

The purpose of this blog is purely education/information and should not be viewed as creating any attorney-client privilege between the reader and author.

If you have any questions, comments, or concerns, then please feel free to leave me a comment below and thank you reading this blog article. You can also check out the author at his profile at AVVO.com (Candela

Image source: pexels.com

No. 20-017


[i]  See Chapter 732, Part I., Fla. Stat.

[ii]  See §732.107, Fla. Stat. Escheat.

[iii] Statistic comes from – Ashar, Linda C. Esquire. The Complete Guide to Planning Your Estate in Florida. Atlantic Publishing Group, Inc. 2001.

[iv] On this point, I get it. 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)

[v] See Chapter 732, Part V., Fla. Stat.

[vi]  See §732.501, Fla. Stat. (“Who may make a will.—Any person who is of sound mind and who is either 18 or more years of age or an emancipated minor may make a will.”)

[vii]  If there are questions about the capacity of the testator to make his will, then a medical professional can be consulted to examine and sign off on any competency concerns, but this is usually not a concern because Florida assumes that the testator is of sound mind, unless it can be conclusively demonstrated that the testator was not competent at the time the will was signed.

[viii] See §732.502, Fla. Stat. (“Execution of wills.—Every will must be in writing and executed as follows:

(1)(a) Testator’s signature.—

1. The testator must sign the will at the end; or

2. The testator’s name must be subscribed at the end of the will by some other person in the testator’s presence and by the testator’s direction.

(b) Witnesses.—The testator’s:

1. Signing, or

2. Acknowledgment:

a. That he or she has previously signed the will, or

b. That another person has subscribed the testator’s name to it,

must be in the presence of at least two attesting witnesses.

(c) Witnesses’ signatures.—The attesting witnesses must sign the will in the presence of the testator and in the presence of each other.

(2) Any will, other than a holographic or nuncupative will, executed by a nonresident of Florida, either before or after this law takes effect, is valid as a will in this state if valid under the laws of the state or country where the will was executed. A will in the testator’s handwriting that has been executed in accordance with subsection (1) shall not be considered a holographic will.

(3) Any will executed as a military testamentary instrument in accordance with 10 U.S.C. s. 1044d, Chapter 53, by a person who is eligible for military legal assistance is valid as a will in this state.

(4) No particular form of words is necessary to the validity of a will if it is executed with the formalities required by law.

(5) A codicil shall be executed with the same formalities as a will.

[ix] The witnesses must be legally competent which means 18 years of age or older and of sound mind. Disinterested witnesses are always a plus, but not required legally. See §732.504, Fla. Stat. Disinterested means that the witnesses have no financial or personal interest in the outcome of the will and are not otherwise beneficiaries.

[x] It is a good idea to have a backup plan in terms of one or two or even three successors in the even that the first or second named executor cannot serve for whatever reason. It is important to note that anyone adjudicated of a felony offense is legally disqualified from serving as an executor.

Take the Stand.

Scoffing at the situation, “They can’t prove this case. They don’t have any evidence.” My friend if that were only true.

Almost without fail, the prosecution has testimony and plenty of it to offer as evidence. Contrary to a popular misunderstanding, testimony is evidence. In fact, over 99 percent of all the evidence presented in courtrooms around our country is sworn testimony. Simple, he said, or she said, testimony given under oath. And make no mistake, testimony can be downright deadly or it can save your hide.

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,”[i] and you have testifying to save yourself or clear your name.

Most defense attorneys recognize that your average, ordinary person accused of a serious offense is probably not ready to be professional witness right off the bat. With their work cut out for them, the exceptional defense attorney sets aside as much time as possible to prepare the witness to testify. As the Legendary Basketball Coach John Wooden used to say, “Failing to prepare is preparing to fail.” And this is no exception to that rule.

The preparation usually includes working with the accused to tell their story (and keep them calm on the stand, and defend themselves on cross-examination). Putting aside the skills necessary to protection oneself on cross-examination, the focus is usually on the presentation of testimony. Their story.

Testifying is about the defendant and not about the attorney. It goes without saying that it is not for the attorney to concoct, devise, manufacture, or create a story or narrative for the accused. The attorney is there to work with and assist the client in conveying their story to the jury as authentically as they can. Usually, the more authentic the witness is, the more credible the jury will find their presentation.

With the above in mind, there are few common guidelines for testifying. First, when you are answering a question, please make sure you understand the question before you attempt to answer the question. If you do not understand the question, ask for clarification or for the questioner to rephrase the question.

You may even pause to think about what you might say before you verbalize your answer (provided the pause is natural, no more than is necessary, and is not contrived). On the other hand, there is nothing worse than answering the question, but appearing not to know what you are talking about. That kind of silliness is always credibility demerit for the jury.

Second, do not allow the prosecutor to “force” you into answering a question with only a “yes” or “no.” Sometimes, the question cannot be answered with a simple “yes” or “no.” For example, you take a flight from Boston to San Francisco. The flight lands at O’Hare Airport in Chicago, Illinois, and the question to you on the stand is this, “Ms. Accused, have you ever been in Chicago?” Additionally, you did not get off the plane (as the plane was merely refueling) and you had never Chicago otherwise. How should you answer the question? Correctly, you could answer the question either “yes” or “no.” The more accurate way to answer the question if pressed is to answer with “May I explain?” And then explain the above scenario. Remember, as the witness being questioned on the stand, you can answer the question any way you want so long as you answer. The prosecutor is not allowed to “force” an answer.

Third, when answering questions, do not volunteer information. Like Hagrid bemoans in the Harry Potter stories, “Shouldn’t have said that, should not have said that.”[ii] If the questioner wants to know something, then the questioner will ask. It is not up to the witness to decide to augment, add, supplement, or make addendums to the question asked. Usually, volunteering information backfires for the witness and creates new avenues of cross-examination for a skilled cross-examiner. Listen extremely carefully to the question and answer only the question being asked.

Fourth, do not ramble. “Just the facts.”[iii] Answer the question asked as succinctly and directly as possible. If the question is, “what color is the sky?” the answer should be blue (unless it was sunset, sunrise, or nighttime). If you start answering about the color of your SUV or dog or shirt, then jury is going sour on your credibility. If you can answer the question, then answer the question.

Also, do not be evasive in your answers. If you do not know something, then say so. There is nothing worse than answering a question without answering the question or making up an answer. As the defendant, you will suffer the ramifications, if the jury suspects you are not being 100 percent honest with them in your testimony.

Fifth, always be polite and respectful when answering a question. Always. It should be “yes, sir,” “no, ma’am,” or “yes, Your Honor.” There is no excuse for not being polite and respectful. The jury will respect you for your politeness.

Sixth, if the prosecutor is attempting to provoke, badger, or disrespect you while you are on the stand, then you must remain cool, calm, and collected. In the same vein, do not argue or bicker with the prosecutor. It looks awful and hurts your credibility with the jury. Let your attorney deal with any inappropriate questions.

Look at it this way, prosecutors do not cross-examine witnesses on a regular basis (or as much as defense attorneys do in hearings or trials). In our system, cross-examination is akin to a fine art and is the greatest legal mechanism to getting to the truth.[iv] It is a skill that takes years of practice to perfect. Imperfect cross-examinations often come off nasty, cumbersome, embarrassing, and usually reflect poorly on the cross-examiner (and not the poor soul trying to answer the questions). Remaining polite and respectful is one of the best ways to completely disarm a prosecutor’s inartful cross-examination. In many instances, the prosecutor will become frustrated because you are not taking the bait and engaging in an argument with them.

Seventh, while you are testifying, maintain eye contact with the jury. These are the people that you are trying to convince. The members of the jury are the most important people in the trial.

It takes a lot of practice to maintain eye contact with the jury correctly. When you sit in the witness stand, angle your chair to face towards the jury best you can and look directly at them. Eye contact is the key. When answering the question, speak directly to the jurors. When you are finished answering the question, look back to the questioner for the next question and then look back to the jury to answer the question. And so on and so forth. Again, this takes a lot of practice, but it pays huge dividends because it includes the jury.[v]

Eighth, if you are caught in an apparent inconsistent statement, then stop and think. If you can explain the inconsistent statement, then super; if you cannot, then move on. For example, on direct examination, you testified that the “light was green.” At the time of the accident, the told the police officer making the report that the “light was red.” A good cross-examiner will confront you with the change in your testimony and make it seem like you are lying or have a bad memory or cannot be trusted. If you can explain the change, then do so; if you cannot, then move on. Sometimes, things happen and if it cannot be explained, then it best to keep pushing forward.

Nineth, if the witness has prior convictions, then the witness will most likely have to own up to the convictions. Admit to what you need to admit to but do not make it seem like you are proud of your convictions. There are special rules for how prior convictions are addressed before the jury regarding a witness’s testimony. These issues will be addressed in a subsequent blog.

Tenth, you should understand that the objections and specific rulings are are so that you know how to act. Again, the various objections will be addressed in subsequent blog because there are so many to discuss.

Eleventh, after cross-examination, your attorney will have a chance for redirect examination. Redirect examination comes after cross-examination. This second set of direct questioning allows your attorney to ask you questions to clarify some of your answers from cross-examination. Remember, if the cross-examiner made some cheap points by asking a misleading question or two and did not allow you to clarify, then your attorney can ask for you to fully explain whatever needs to be explained to clean up those answers. In some instances, redirect allows the jury to get a better understanding of what you were talking about at the time.

Twelfth, if you are going to introduce certain other evidence (like photographs or physical objections), then your attorney should go over the predicate or foundational questions that allow the court to admit the evidence. Predicate questions are time honored questions that establish knowledge and authentication so that rules of evidence are satisfied, and the evidence can be admitted into evidence.

Lastly, if you are being questioned, do not look to me as your counsel for the answers or confirmation that your answer is correct or that you are doing a good job on the stand. I cannot participate in your testimony in that way. You are the witness, act like you belong on the stand telling your story, and the jury should want to hear what you have to say. Additionally, if the prosecutor stands directly between you and your attorney, then you will not be deterred and can continue to answer the questions.[vi]

Like anything, these seem like common sense. I can tell you from my experience, the above information is anything but common.  These guidelines can make or break your testimony at a trial. Like anything in life, the best prepared witnesses who practice with their attorneys tend to do better on the stand. Unfortunately, great testimony sometimes cannot cure terrible facts.

Anthony Candela is the Trial Dog and a Board-Certified 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

www.candelalawfirm.com

If you are looking for someone to guide you through the criminal justice system or to prepare to testify,[vii] then please do not hesitate to contact www.candelalawfirm.com or Anthony Candela at (813) 417-3645 to discuss this matter and any other criminal justice matter.

The purpose of this blog is purely education/information and should not be viewed as creating any attorney-client privilege between the reader and author.

If you have any questions, comments, or concerns, then please feel free to leave me a comment below and thank you reading this blog article. You can also check out the author at his profile at AVVO.com (Candela) 

Image source: pexels.com

No. 20-016


[i]  This is Spinal Tap. Directed by Rob Reiner. Embassy Pictures. 1984.

[ii]  Harry Potter (books). J.K. Rowling. Scholastic Press. (1997-2007)

[iii]  Detective Joe Friday. Dragnet. (1949)

[iv] 5 J. Wigmore, Evidence § 1367, p. 32 (J. Chadbourn rev. 1974). ([cross-examination] “beyond any doubt the greatest legal engine ever invented for the discovery of truth”).

[v] Attorneys often do not understand and appreciate that a great exchange between the witness and examiner is usually lost on the jury if they are merely spectators to the scrum because the jury is not participating. On the other hand, when the witness ignores the questioner and looks directly at the jury while making direct eye contact with them, he transforms the situation and takes the jury from being mere spectators to engaged participants (hanging on each answer). It usually makes the jurors want to hear what is next.

[vi] Practioner’s point. I learned from an extremely talented defense attorney when I first started to position myself between the witness and the prosecutors. To stand directly in the eye line of the witness and the prosecutors. The reason this is done during cross-examination is to command the situation. Additionally, the purpose was to disrupt any signals (whether subtle or overt) between the witness and prosecutors. Many times, the witness is simply looking for a head nod, wink, eye roll, raised eyebrow, or some type of affirmation that their answers are acceptable or good or bad and stay away from that topic. Ethically, attorney should not be signaling a witness on their answers (but it happens quite a bit). Also, standing between the witness and prosecutors makes the witness focus on me (and not look at the jury) and answer my questions. In a way, the cross-examiner is defining the questioning both with the leading questions and the witness’s undivided attention. If done correctly, the questions of the cross-examination become an after thought.

[vii] Checklist for Preparing a Witness to Testify.

1.  Make sure you understand the question before you attempt to answer it.

2.  Do not allow the prosecutor to “force” you into answering only “yes” or “no” to a question if an answer requires more explanation.  (Example: The “flight to Chicago” question).

3.  Do not volunteer information.  (If we want to know, we will ask you.)

4.  Do not ramble.  Answer the question asked directly.  This means do not be evasive in your answer.

5.  Be polite and respectful– “Yes, sir,” and “no, sir” are to be used when answering questions.

6.  Do not argue with the prosecutor— YOU WILL ALWAYS LOSE!  Be polite and respectful, even if you are provoked (or disrespected).

7.  Maintain eye contact with the jury.  (They are the ones you have to convince). 

8.  If you are caught in an apparent prior inconsistent statement— think, then try and explain the inconsistent statement if you can.  (If you cannot, then do not.)

9.  Regarding your prior convictions: Admit them, but do not sound proud of them.

10.  Do not let the prosecutor annoy or intimidate you– stay cool!  (This is easier said than done.)

11.  Understand what the objections are– what “sustained” and “overruled” mean.

12.  Understand the purpose of re-direct examination.

13.  Understand the predicate questions required for the admission of any exhibits that are to be introduced.  (E.g., is this photograph a “fair and accurate” representation…etc.).

This checklist was adapted from an inhouse seminar presented by J. Kenneth Littman. Public Defender’s Office (Tampa).

That Does Not Sound Like A Crime: How to Strategically Use a Motion to Dismiss

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, the purpose of the rule is simple: no case should unnecessarily expend scarce judicial resources once the court has determined that there are no material facts in dispute, and that the undisputed facts do not establish a prima facie case of guilty against the defendant.[iii]

Unlike many jurisdictions, Florida has a very liberal pre-trial discovery practice which allows for unearthing all the facts surrounding an incident. Like anything in life, one just has to know where to look or what rocks to turn over. Any defense attorney worth his or her salt has a solid understanding of the facts of the case by the end of discovery.

Understanding the facts and the law is only half the battle in any defense. The defense attorney must know how to use the procedural rules to the client’s benefit whenever possible. One of those instances is when to deploy a motion to dismiss if the opportunity presents itself.

In general, there are not a lot of good reasons why an accused should not attempt to make the requisite showing that the Information (also known as the charging document) should be dismissed. If the defendant succeeds, then justice has been served; if the defendant fails, then all the parties (including the court) and the system is no worse off than before the attempt. “You miss 100% of the shots you don’t take.” Wayne Gretzky, “the Great One,” Hall of Fame, Canadian Hockey Player.

There are a few technical components to a motion to suppress (outside of the caption, “wherefore” clause, certificate of service, and signature block). A motion pursuant to this rule should state specifically state all the known facts. The motion also needs to move on the grounds that there are no material disputed facts, and the undisputed facts do not establish a prima facie case of guilt against the defendant or do establish a complete defense. State v. Reese, 774 So.2d 948, 949 (Fla. 5th DCA 2001) (“the burden [is on the movant] to allege that the material facts of the case [a]re undisputed, describe what the material facts [a]re, and demonstrate that the undisputed facts either (1) fail [ … ] to establish a prima facie case, or (2) establish [ … ] a valid defense”); and State v. Anderson, 536 So.2d 1166 (Fla. 2d DCA 1988). The (c)(4) motion also works with affirmative defenses that are apparent on the face of the record (for instance, consent, self-defense, duress…etc.)

The facts on which the (c)(4) is based should be specifically alleged, preferably in numbered paragraphs with no more than one material averment (i.e., facts) to a paragraph. Where appropriate, the pleader should cite to sworn statements, deposition transcripts, police reports, and the like. Statements made in such documents are admissions by agents of the state, binding against the state; and their citation in the motion lends credence to the pleader’s claim that “there are no material disputed facts.”[iv]

The (c)(4) motion to dismiss must be sworn to be valid. Unsworn statements of attorneys are not evidence.[v] A motion sworn to by defense counsel is subject to summary dismissal;[vi] as is a motion in which the affiant swears that the facts averred are true “to the best of my knowledge and belief.”[vii] The jurat (the place on the document where the person swears the facts are true) must reflect that the affiant has been placed under oath, and that the facts to which he swears in the motion are true.[viii]

Courts sometimes believe that the (c)(4) must be sworn by the accused. This is not true. The motion can be sworn by anyone who has “first-hand knowledge.” For instance, an eyewitness to the entire robbery watches the event and sees that the accused was not involved. The eyewitness can swear to the facts that the identity of the true perpetrator in a motion to dismiss.[ix]

In certain instances, an accused will assert that there was no intent to commit a crime and that the facts do not establish the intent. Intent refers to mens rea which is Latin for “criminal intent.” On these occasions when the accused asserts a defense based on lack of knowledge or intent, courts are generally unwilling to resolve the case via a (c)(4) motion dismiss. The idea is this: whether the accused did or did not have requisite mens rea or criminal intent to commit the crime is almost always a matter for the trier of fact.[x]

A facially insufficient (both legally and factually) motion should be struck by the court without further ado. In response to the filing of a (c)(4), the state may file either a traverse or a demurer. A traverse says, in effect, “the movant’s factual recitation is false or incomplete; there remain issues of fact whether he committed the crime” and adds those facts for the court’s consideration. Essentially, a dispute remains. On the other hand, a demurrer says assume arguendo that if the movant’s factual recitation is true and complete, then he is not entitled to dismissal as a matter of law. The court must review the facts in the light most favorable to the non-moving party.[xi] Contrary to popular usage, there is no such thing as a “Traverse-Demurrer.”[xii]

Fla. R. Crim. P. Rule 3.190(d) is somewhat unclear. The subsection states:

The state may traverse or demur to a motion to dismiss that alleges factual matters. Factual matters alleged in a motion to dismiss under subdivision (c)(4) of this rule shall be considered admitted unless specifically denied by the state in such traverse. The court may receive evidence on any issue of fact necessary to the decision on the motion. A motion to dismiss under subdivision (c)(4) of this rule shall be denied if the state files a traverse that, with specificity, denies under oath the material fact or facts alleged in the motion to dismiss. The demurrer or traverse shall be filed a reasonable time before the hearing on the motion to dismiss.[xiii]

Although there is language above, the court should not “receive evidence on any issue of fact necessary” to resolve a (c)(4) motion for two reasons. First, “a motion to dismiss under subdivision (c)(4) of this rule shall be denied if the state files a traverse that, with specificity, denies under oath the material fact or facts alleged in the motion to dismiss.” Factfinding is usually the exclusive function of the jury; the ruling on a motion to dismiss is a ruling as a matter of law.[xiv] The distinction between the two is important.

Sometimes the motion to dismiss will not result in an outright dismissal, but a reduction of charges.[xv] The prima facie evidence is does not establish aggravated battery, but simple battery.

Lastly, if a (c)(4) motion is granted, the state can refile the charges because the dismissal does not have the effect of an adjudication on the merits like a judgment of acquittal or a summary judgment.[xvi] In other words, there is no Fifth Amendment “Double Jeopardy” problem.

Anthony Candela is the Trial Dog and a Board-Certified 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

www.candelalawfirm.com

If you are looking for someone to guide you through the criminal justice system, then please do not hesitate to contact www.candelalawfirm.com or Anthony Candela at (813) 417-3645 to discuss this matter and any other criminal justice matter.

The purpose of this blog is purely education/information and should not be viewed as creating any attorney-client privilege between the reader and author.

If you have any questions, comments, or concerns, then please feel free to leave me a comment below and thank you reading this blog article. You can also check out the author at his profile at AVVO.com (Candela

Image source: Photo by Tingey Injury Law Firm on Unsplash

No. 20-015


[i] See State v. Kalogeropolous, 758 So.2d 110, 111 (Fla. 2000) (“The procedure is similar to summary judgment proceedings in civil cases, but a dismissal under this rule is not a bar to subsequent prosecutions”); State v. Reese, 774 So.2d 948, 950 (Fla. 5th DCA 2001) (“A motion to dismiss in a criminal case is analogous to a motion made for summary judgment in civil cases”); State v. J.T.S., 373 So.2d 418 (Fla. 2d DCA 1979); State v. Snyder, 635 So.2d 1057, 1059 (Fla. 2d DCA 1994) (Schoonover, J., dissenting on other grounds); and State v. Diaz, 627 So.2d 1314 (Fla. 2d DCA 1993). 

[ii] See Florida Rule of Civil Procedure Rule 1.510 (Summary Judgment). (“The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”)

[iii] Fla. R. Crim. P. 3.190(c)(4).

[iv] State v. McIntyre, 303 So.2d 675 (Fla. 4th DCA 1974).

[v] Unsworn statements of attorneys are not evidence and may not be considered as evidence in Florida by either trial or appellate courts. There are five (5) types of acceptable evidence forms in Florida: admissions, stipulations, testimony (or affidavits), judicial notice, and/or self-authenticating documents. See generally Ehrhardt, Florida Evidence §605.1 (Oath or Affirmation). See also Smith v. Smith, 64 So.3d 169 (Fla. 4th DCA 2011); H.K. Development, LLC. V. Greer, 32 So.3d 178 (Fla. 1st DCA 2010); Faircloth v. Bliss, 917 So.2d 1005 (Fla. 4th DCA 2006); Arnold v. Arnold, 889 So.2d 215 (Fla. 2d DCA 2004);  Brown v. School Bd. of Palm Beach County, 855 So.2d 1267 (Fla. 4th DCA 2003); Arroyo-Munoz v. State, 744 So.2d 536, 537 (Fla. 2d DCA 1999)(“A prosecutor may not give unsworn testimony regarding facts outside the record”); Lewis v. State, 653 So.2d 1107, 1108 (Fla. 3d DCA 1995) (Trial court erred in relying on unsworn testimony in direct criminal contempt conviction); Murphy v. State, 667 So.2d 375 (Fla. 1st DCA 1995) (Permitting attorneys to testify without taking an oath was error); Sabina v. Dahlia Corp., 650 So.2d 96 (Fla. 2d DCA 1995); Blimpie Capital Venture, Inc. v. Palms Plaza Patners, Ltd., 636 So.2d 1994 (Fla. 2d DCA 1994); Bartholomew v. Bartholomew, 611 So.2d 85 (Fla. 2d DCA 1992); State v. Brugman, 588 So.2d 279 (Fla. 2d DCA 1991)(Counsel’s representations as to the facts at a hearing on a motion to dismiss could not establish the underlying facts “An attorney’s unsworn statement does not establish a fact in the absence of a stipulation”); Schneider v. Currey, 584 So.2d 86, 87 (Fla. 2d DCA 1991) (Unsworn factual allegations contained in a memorandum of law presented to the trial court “are not facts that a trial court or this court can acknowledge.”); Houck v. State, 421 So.2d 1113 (Fla. 1st DCA 1982) (Unsworn testimony by Assistant State Attorney during suppression hearing was not competent); and Leon Shaffer Golnick Advertising, Inc. v. Cedar, 423 So.2d 1015, 1016-17 (Fla. 4th DCA 1982) (Improper for attorney to make unsworn statements of fact at hearing to vacate default: “[T]he practice we wish to see terminated is that of attorneys making unsworn statements of fact which trial courts may consider as establishing facts. It is essential that attorneys conduct themselves as officers of the court; but their unsworn statements do not establish facts in the absence of stipulation. Trial judges cannot rely upon these unsworn statements as the basis for making factual determinations; and this court cannot so consider them on review of the record. If an advocate wishes to establish a fact, he must provide sworn testimony through witnesses other than himself or a stipulation to which his opponent agrees.”)

[vi]  State v. Lewis, 463 So.2d 561 (Fla. 2d DCA 1985).

[vii]  State v. Justo, 555 So.2d 893 (Fla. 3d DCA 1990).

[viii] It is common misconception that the motion must be sworn to before a notary. Although that is the preferable method, the judge can swear the client in court for the purpose of swearing to the facts contained within the motion. See Styron v. State, 662 So.2d 965 (Fla. 1st DCA 1995).

[ix] See, e.g., State v. Betancourt, 616 So. 2d 82 (Fla. 3d DCA 1993) (motion sworn to by father/victim of defendant).

[x] There is the rare case where the defendant is accused of a specific intent crime (meaning that the defendant must have had a fully formed intent to commit this crime) where a (c)(4) motion to dismiss may be useful. See State v. Shorette, 404 So.2d 816 (Fla. 2d DCA 1981); and State v. Stenza, 453 So.2d 169 (Fla. 2d DCA 1984). See, e.g., State v. Jones, 642 So.2d 804 (Fla. 5th DCA 1994); State v. Garantiva, 603 So.2d 135 (Fla. 3d DCA 1992); State v. Duran, 550 So.2d 45 (Fla. 3d DCA 1989); State v. Atkinson, 490 So.2d 1363 (Fla. 5th DCA 1986); State v. Hricik, 445 So.2d 1119 (Fla. 2d DCA 1984). 

[xi] State v. Randolph, 287 So.3d 686 (Fla. 5th DCA 2019). See also State v. Velez, 555 So.2d 1251 (Fla. 3d DCA 1989).

[xii] Like a leprechaun or a unicorn, there is no such legal entity as the “traverse-demurrer.” It appears that the “traverse-demurrer” is a lazy concoction created because a prosecutor failed to select one of the two options concerning the document he or she was going to file in response to the (c)(4). Mutually exclusive, the two responses are completely different and cannot occupy the same space at the same time. It would be like crossing the streams in Ghostbusters.

[xiii] It is important to note that a traverse or a demurrer must be in writing. It is a pleading an cannot be orally done in open court. See Fla. R. Crim. P. Rule 3.190 (d). The failure to object to an oral traverse is an error attributable to the defense attorney (and possibly subject to Fla. R. Crim. P. Rule 3.850). See State v. Teehan, 557 So.2d 89 (Fla. 3d DCA 1990). The State must specifically deny a material fact. General denials are not legally acceptable and the motion to dismiss should be granted. See State v. Kemp, 305 So.2d 833 (Fla. 3d DCA 1974); and Camp v. State, 293 So.2d 114 (Fla. 4th DCA 1974). Conversely, if the State does not specifically deny a fact, the fact is deemed admitted.  (And therefore, the State cannot go back and argue around it later or go with a different theory of prosecution).  Homicides have been dismissed because the state did not properly plead a traverse and facts were deemed admitted. See State v. Kalogeropolous, 758 So.2d 110 (Fla. 2000). Further, if the trial court learns later on at trial that the traverse was filed in bad faith, the court can impose sanctions. “If the State files a traverse, it must, under oath and in good faith, either specifically dispute the defendant’s material facts or allege additional material facts that are sufficient to establish a prima facie case. Id. at 112; State v. Dickerson, 811 So.2d 744, 746 (Fla. 2d DCA 2002); see also State v. Gutierrez, 649 So.2d 926, 927 (Fla. 3d DCA 1995) (noting that any denial of the material facts by the State in a traverse must be made in good faith and not based on speculation, conjecture, presumption, or assumption).”

[xiv] See generally State v. Miller, 710 So.2d 686 (Fla. 2d DCA 1998); and State v. Presume, 710 So.2d 604 (Fla. 4th DCA 1998).

[xv] State v. Smulowitz, 482 So.2d 1388 (Fla. 3d DCA 1986). See also State v. Hankerson, 482 So.2d 1386 (Fla. 3d DCA 1986); and Simmons v. State, 551 So.2d 607 (Fla. 5th DCA 1989).

[xvi] State v. Lindemuth, 193 So.3d 55 (Fla. 3d DCA 2016).

No, You May Not Search

“May I search your trunk?” “Would it be okay if I searched your car?” “May I look around?” “I need you to step out of the car so that I… do you mind I look around? I just want to make sure that you don’t have anything you’re not supposed to have. Would that be okay?” These are all requests to search and require consent to make the warrantless search constitutional.

Consent is commonly defined as “to permit, to approve, or to agree.”[i] In terms of the Fourth Amendment, consent has been understood to be an exception to the warrant requirement. Consent allows the police officers to search a person or place without a warrant. The key to making this extra-judicial, warrantless search constitutional is that the suspect has to approve of the search.[ii]

The United States Supreme Court in Schneckloth v. Bustamonte[iii] defined how the lower courts would analyze consent exceptions to warrantless searches. The Court explained:

It is well settled under the Fourth and Fourteenth Amendments that a search conducted without a warrant issued upon probable cause is ‘per se unreasonable . . . subject only to a few specifically established and well-delineated exceptions.’ (Internal citations omitted) It is equally well settled that one of the specifically established exceptions to the requirements of both a warrant and probable cause is a search that is conducted pursuant to consent. (Internal citations omitted) The constitutional question in the present case concerns the definition of ‘consent’ in this Fourth and Fourteenth Amendment context.

In Florida, when the prosecution asserts consent as a justification for a warrantless search, the prosecution bears the heavy burden of showing that the consent was given voluntarily and not merely acquiescence to police authority. “Acquiescence to police authority” is a legal concept that means that the person confronted with the request to search merely capitulated and agreed to the search because law enforcement coercion.

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.[iv] 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.[v]

Many people simply do not understand that in America they have the constitutional right to terminate a citizen encounter, go about their business, and refuse to allow law enforcement to search their automobile, bags, or person. It is only when the officer has a reasonable suspicion of criminal activity can an officer detain a person; it is only when the officer has probable cause to believe that a crime is, has, or is about to occur, can the officer arrest and/or search a person. The standards of suspicion are different, and the differences are important to prosecutors, defense attorneys, and judges. On the other hand, most people are not lawyers and have no idea (nor should they) understanding the different levels of suspicion (e.g., a hunch, reasonable suspicion, or probable cause). Most people simply cannot fathom simply ignoring the officer’s request- so they stay and obey.

And let’s face it – when confronted with a law enforcement officer in the above situation – it becomes nearly impossible for the average citizen to resist the officer’s requests to search. People become scared of being arrested and believe that if they comply with the officer’s request that that will somehow inoculate them from an arrest. Please understand, if the officer believes (rightly or wrongly) that someone has committed a crime, the person will most likely be arrested. It is not up for a “street” debate; the matter should be litigated, however, in court.

Over the years, the problem with the consent analysis has become obvious – – – most citizens believe that they are required to cooperate with law enforcement. Appellate Judge Casanueva (Second District), in Smith v. State,[vi] outlined the concern:

We fear that similar situations will arise in the future, perhaps because most citizens hold it to be their duty to cooperate with law enforcement, a belief with which we join. But once engaged in the process, few citizens know the boundaries that law enforcement may not legally exceed or the means to stop conduct they may perceive to be unduly intrusive. The Supreme Court of the United States has held that police officers are not required to inform citizens of their right to refuse consent to a search. (citation omitted). Thus, ignorance of one’s rights may lead to a denial of those rights. To avoid similar occurrences and to define rules for determining “whether an invasion of privacy is justified in the interest of law enforcement,” (citation omitted) we would suggest that our supreme court consider adopting a bright line rule that requires clear verbal consent before the search of any body orifice. (footnote omitted) The rule, to insure an individual’s right to privacy, should impose a duty upon law enforcement to inform a person of the right to refuse consent as well as the concomitant right to withdraw previously given consent.

In the same opinion,[vii] Chief Judge Altenbernd (Second District) in his concurring opinion expressed equal concern and stated:

I realize that the case law is beginning to develop distinctions based upon an officer’s rhetoric. (citation omitted). I am not entirely convinced that a reasonable person stopped by an officer believes that he is free to leave if the officer says, “May I look in your mouth?” but has a different understanding if the officer says, “Open your mouth.” Neither am I convinced that a reasonable person fully appreciates the proper scope of a search during an encounter depending upon whether the officer says “search” or “look around” or “look into.” All people, including police officers, communicate the level of their authority to control others both verbally and non-verbally. We expect, and even demand, that our police officers will be polite and courteous. They are trained to assert their authority while remaining courteous. Beginning in pre-school, citizens are taught to respect the police and to cooperate with them. As a result, a polite and courteous request to search from a uniformed officer, emerging from a police car while armed with a gun and nightstick, conveys a completely different degree of authority, for instance, than a brusk order from an ice cream vendor to buy a Good Humor bar. Given that we must examine the question of an officer’s show of authority and a citizen’s consent from the perspective of a reasonable citizen, and given that the State has the burden of proving the citizen’s consent to the search, I do not believe the State met its burden in this case.

Many persons stopped and searched by law enforcement complain that the police did not give them a real opportunity to “consent.” They complain that they felt pressured or forced into consenting. It is a common theme amongst persons arrested on narcotics or contraband charges.

Over the past couple of years via high profile court cases, the media has been able to shine a massive spotlight on this problem. The solution – body cameras. The proper use of body cameras on police officers has significantly shown that police behave more appropriately in terms of stopping and searching individuals.[viii] [ix] [x]

As my old football coach used to use when we watched taped game films to account for our performances in the previous game, “the eye in the sky don’t lie.” Which means there is no manipulating, spinning, or wiggling out of what we were seeing on the film. We either made the block, or we did not. We lined up correctly, or we did not. We made the play, or we did not. There were no “foggy memories,” or “I remember it differently…” from what the tape showed. It was what it was.

The same holds true for a properly worn and used body camera. The recording either corroborates what the officer says, or it corroborates what the accused says. The recording is objective, has no agenda, and is infallible in terms of truth-telling. It is what it is.

And in terms of consent and the “totality of the circumstances,” it is the opinion of this author that as law enforcement body cameras become more and more prevalent, I believe that consent issues will become clearer for the trial and appellate courts to pin down because it will not be dependent on the credibility of the law enforcement officer versus the accused (which is always a tough situation with most judges).

Anthony Candela is the Trial Dog and a Board-Certified 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

www.candelalawfirm.com

If you or your family member has been stopped, searched, and arrested for contraband, and the police claim you or your family member consented to the search, then please do not hesitate to contact www.candelalawfirm.com or Anthony Candela at (813) 417-3645 to discuss the matter. As a three-time, board-certified criminal defense attorney (in both State and federal court), I have seen and litigated a lot of warrantless consent searches. While I cannot say that I won them all at the trial level, I have had some decent success on getting some of these matters suppressed.

The purpose of this blog is purely education/information and should not be viewed as creating any attorney-client privilege between the reader and author.

If you have any questions, comments, or concerns, then please feel free to leave me a comment below and thank you reading this blog article. You can also check out the author at his profile at AVVO.com (Candela) 

Image source: pexels.com

No. 20-014


[i] https://www.dictionary.com/browse/consent?s=t

[ii] A common tactic employed by certain defendants is to apply some sort of chopped logic to the matter and concoct a strange gambit. The ploy goes something like this: the suspect agrees to the search with the officers, claiming, “I have nothing to hide” (when they, in fact, had drugs on their person). The ruse never works with law enforcement who are going to search one way or another. The best policy is to stand fast and deny the request to search. The officers may threaten to arrest you, or call for a canine to sniff you, or arrest you anyways for something else. The best policy (and it may be very, very difficult, is to not consent to search and request an attorney).

[iii] 412 U.S. 218, 221, 93 S.Ct. 2401, 36 L.Ed.2d 854 (1973)

[iv] See Schneckloth, supra.

[v] See Hardin v. State, 18 So.3d 1246 (Fla. 2d DCA 2009).

[vi]  See Smith, 753 So.2d 713, 716 (Fla. 2d DCA 2000).

[vii] See Smith, 753 So.2d 713, 717 (Fla. 2d DCA 2000).

[viii] https://www.nydailynews.com/new-york/ny-nypd-body-cameras-20201130-4s36ea46lfdwnl73xm2scmydji-story.html

[ix] https://www.nytimes.com/2020/11/30/nyregion/nypd-body-cameras.html

[x] https://www.cnn.com/2020/12/02/us/nypd-body-cameras-report/index.html

What is Discovery? A Brief Explanation of How Florida Rule of Criminal Procedure 3.220 Works

Typically, after the accused has been arrested, bonded out of jail, appeared at the arraignment, and plead “not guilty”[i] to the Information (or charging document), the prosecution moves into the discovery phase. Discovery (sometimes referred to as pre-trial discovery) refers to the formal process of exchanging information between the prosecution and defense concerning the evidence and witnesses the parties intend to present at trial. Discovery enables the parties to know before the trial begins what evidence will be presented.[ii] Newbies to the criminal justice system often have no idea what discovery means to the case. Discovery is also the process where the defense can investigate the prosecutions case through formal methods like depositions and crime scene investigation.[iii]

Florida Rule of Criminal Procedure 3.220 outlines what are the discovery obligations and duties of the various parties in this phase of the case. Since the inception of Fla. R. Crim. P.3.220, the various courts in Florida have wrestled with the inner workings of the rule, but not the concept of discovery. Over the years, the rule has been defined, tweaked, and re-defined as the notions and ideas of what is and is not discovery have evolved.

The rules of criminal discovery are designed in their most basic sense to prevent trial by ambush.[iv] Another purpose for pre-trial discovery is to assure a fair trial to a defendant charged with a crime. Discovery is not employed to require the state attorney to investigate or prepare the defendant’s case, or to disclose to the defendant information or documents which, by the exercise of due diligence, are readily available by subpoena or deposition.[v] The rule is designed to allow the parties to have a good understanding of the prosecution’s case against the defendant.

What if my attorney does not receive all the discovery from the prosecutors? As the case proceeds, the prosecutors have a duty to turn over discovery as it becomes available and continually update all the discovery.

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.”[vi] The violation and hearing on the matter is a referred to as a Richardson hearing.

The rule of thumb (if there is such a thing) is that trial courts faced with objections requesting Richardson hearings should be willing to liberally grant the hearing. Being legally frugal, a quick fifteen-minute hearing early in the trial proceedings may help avoid hours of appellate practice and days of retrial (not to mention the cost to taxpayers).

Normally, when a discovery violation is brought to the attention of the trial court, the court must conduct a hearing as to the circumstances of the violation and its potential prejudice to the defendant. Carter v. State, 665 So.2d 1112 (Fla. 4th DCA 1996). When it has been alleged that the state has committed a discovery violation, the trial court pursuant to Richardson, and its progeny, has a duty to first make an adequate inquiry into all of the surrounding circumstances concerning the violation. Tarrant v. State, 668 So.2d 223 (Fla. 4th DCA 1996). A trial court’s failure to hold an adequate Richardson inquiry may be grounds for a new trial. Carter v. State, 665 So.2d 1112 (Fla. 4th DCA 1996) but is not reversible per se (meaning that error automatically reverses the case for a new trial).[vii]

The requirement to hold a Richardson hearing reinforces the discovery rules and encourages full compliance. It would be counterproductive to disregard the discovery violation. Donahue v. State, 464 So.2d 608 (Fla. 4th DCA 1985). “The purpose of a Richardson inquiry it to ferret out procedural, rather than substantive, prejudice. In deciding whether this type of prejudice exists in a given case, a trial judge must be cognizant of two separate but interrelated aspects. First, the trial judge must decide whether the discovery violation prevented the defendant from properly preparing for trial…. The second aspect of procedural prejudice deals with the proper sanction to invoke for a discovery violation.” [viii]

In determining procedural prejudice, the Florida Supreme Court in State v. Schopp, 653 So.2d 1016 (Fla. 1995), explained:

In determining whether a Richardson violation is harmless, the appellate court must consider whether there is a reasonable possibility that the discovery violation procedurally prejudiced the defense. As used in this context, the defense is procedurally prejudiced if there is a reasonable possibility that the defendant’s trial preparation or strategy would have been materially different had the violation not occurred. Trial preparation or strategy should be considered materially different if it reasonably could have benefitted the defendant. In making this determination every conceivable course of action must be considered. If the reviewing court finds that there is a reasonable possibility that the discovery violation prejudiced the defense or if the record is insufficient to determine that the defense was not materially affected, the error must be considered harmful. In other words, only if the appellate court can say beyond a reasonable doubt that the defense was not procedurally prejudiced by the discovery violation can the error be considered harmless.

Schopp, 653 So.2d at 1020-21 (Emphasis added). In Schopp, the State failed to include an officer on its original witness list. The Supreme Court of Florida held that in this instance based on the facts of this case the State’s failure could not have materially hindered the defense, and therefore the trial court’s failure to conduct a Richardson hearing to determine corrective measures was harmless beyond a reasonable doubt. Id.

At the appellate level, when determining whether a Richardson violation is harmless, the question is whether there is a reasonable possibility that the discovery violation procedurally prejudiced the defense. For the discovery violation to be considered harmless, the appellate courts must find beyond a reasonable doubt that the defense was not prejudiced by the discovery violation.[ix]

In its analysis, the Florida Supreme Court stated:

…we determine that the State committed a discovery violation in this case by withholding from the defense the fact that Green had changed her original police statement to such an extent that she transformed from a witness who “didn’t see anything” into an eyewitness– indeed, apparently the only eyewitness– to the shooting. “Florida’s criminal discovery rules are designed to prevent surprise by either the prosecution or the defense. Their purpose is to facilitate a truthful fact-finding process.” Kilpatrick v. State, 376 So.2d 386, 388 (Fla. 1979). In essence, the State’s nondisclosure of the changes in Green’s testimony from her original police statement was tantamount to failing to name a witness at all.  Accord Mobley v. State, 705 So.2d 609, 611 (Fla. 4th DCA 1997) (“The State’s disclosure of an eyewitness on the morning of trial can hardly be considered trivial in light of the significance of eyewitness testimony in a case… where the defendant claims that she acted in self-defense and the case essentially boiled down to conflicting versions of what occurred.”); McArthur v. State, 671 So.2d 867, 870 (Fla. 4th DCA 1996) (“Furnishing misleading or inaccurate discovery is tantamount to providing no discovery at all and may constitute a violation of the discovery rules.”)…

State v. Evans, 770 So.2d 1174, 1182 (Fla. 2000). (Emphasis added) In other words, incomplete, misleading, or inaccurate discovery is a discovery violation and tantamount to providing no discovery at all. Id. It is important to recognize that the State must furnish discovery within sufficient time to allow a defendant to prepare for trial without forfeiting the right to a speedy trial, and if the State fails to do so, the court may charge a continuance against the State, even if it results in dismissal of the charges for speedy trial violation. Pura v. State, 789 So.2d 436 (Fla. 5th DCA 2001). 

The prosecutors only must turn over evidence it has either actually or constructively within its own possession or the possession of a government agency. Materno v. State, 766 So.2d 358 (Fla. 3d DCA 2000). None of the Florida rules of criminal procedure relating to discovery require the State to disclose information which is not within the State’s actual or constructive possession.

Discovery issues can make or break a case in terms of knowledge. The more the attorney knows about the case, the more informed decisions he or she can make and provide better advice. There is nothing worse that being at trial and learning something completely unexpected because of a discovery violation.

Anthony Candela is the Trial Dog and a Board-Certified 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

www.candelalawfirm.com

Criminal discovery issues invariably arise in many criminal prosecutions and only the most skilled and experienced attorneys successfully defuse and properly handle these issues. If you think that you or your loved one’s case might have a discovery issue, please do not hesitate to contact www.candelalawfirm.com or Anthony Candela at (813) 417-3645 to discuss the matter.

The purpose of this blog is purely education/information and should not be viewed as creating any attorney-client privilege between the reader and author.

If you have any questions, comments, or concerns, then please feel free to leave me a comment below and thank you reading this blog article. You can also check out the author at his profile at AVVO.com Anthony Candela 

Image source: pexels.com

No. 20-013


[i] Contrary to popular reporting in the media, it is not newsworthy or shocking that a defendant has plead “not guilty” at the arraignment. This is how the legal proceeding starts. It would be like saying, “Breaking news! The hockey game started with puck being dropped!” or “The basketball game started with a jump ball!” Or “Batter up!” That is how a hockey or basketball game starts. On the other hand, it would be newsworthy the other way around (if a defendant plead “guilty” at the arraignment and would probably initiate a psychological evaluation of the defendant by the court).

[ii] https://www.americanbar.org/groups/public_education/resources/law_related_education_network/how_courts_work/discovery/#:~:text=This%20is%20the%20formal%20process,what%20evidence%20may%20be%20presented.&text=One%20of%20the%20most%20common%20methods%20of%20discovery%20is%20to%20take%20depositions.

[iii] Fla. R. Crim. P. 3.220; and Fla. R. Juv. P. 8.060.

[iv]  Barrett v. State, 649 So.2d 219, 221 (Fla. 1994). (See Cuciak v. State, 410 So.2d 916, 917 (Fla. 1982) (“A basic philosophy underlying discovery is the prevention of surprise and the implementation of an improved fact finding process.”); Kilpatrick v. State, 376 So.2d 386, 388 (Fla. 1979).)

[v] State v. Coney, 272 So.2d 550, 553 (Fla. 1st DCA 1973).

[vi] Richardson v. State, 246 So.2d 771, 775 (1971). The “guts” of a Richardson hearing are as follows: 1) Was there a discovery violation? 2) Was the violation willful or inadvertent? 3) Was the violation trivial or substantial? And 4) What effect did the violation have on the ability of the other side to prepare for trial? Id. The final step is what is the appropriate remedy.

[vii] Had a judge conducted an adequate inquiry, he could have chosen from a “panoply of remedies…including, if the evidence warrants, finding not prejudice or ‘harmless error’ and proceeding with the trial.” Barrett v. State, 649 So.2d 219, 222 (Fla. 1994), citing Smith v. State, 500 So.2d 125, 126 (Fla. 1986), overruled by State v. Schopp, 653 So.2d 1016 (Fla. 1995). These remedies could include, inter alia, any of the following: 1. Grant a continuance; 2. Grant a mistrial; 3. Excluding the witness or evidence; 4. Contempt proceedings; or 5. Costs to opposing counsel, among other things. Remember exclusion of evidence or a witness is the “most Draconian” penalty and other alternatives must be sought first, considered, and deemed insufficient to remedy the situation. Id.

[viii] State v. Schopp, 653 So.2d 1016 (Fla. 1995).

[ix] The Florida Supreme Court recognizes a three-pronged inquiry when Richardson issues are presented on appeal: 1. Did a discovery violation occur? 2. Was a Richardson hearing requested? And 3. Did the trial judge satisfy the dictates of Richardson? Suggs v. State, 644 So.2d 64 (Fla. 1994).

Corpus Delicti: What Do I Need to Know?

Corpus delicti is a legal rule which refers to the proposition that the prosecution must prove all the elements of an offense (and, thus a crime) before the accused’s out-of-court statements can be introduced as evidence to demonstrate that the accused was the perpetrator. This principle is widely accepted in criminal prosecutions. The purpose of the rule is to ensure that crazy people are not convicted of crimes simply because they made some admission that they committed the crime without further proof.

The rule deals exclusively with the necessary level of proof before an accused’s out-of-court statement can be offered in evidence. “Corpus delicti” is Latin for “body of the crime.”[i] Corpus delicti comes from the common law and is grounded in the principle that a trial is a search for the truth. The rule was designed out of a matter of fairness to protect a person from being convicted merely out of “derangement, mistake, or official fabrication” in the real posibility that defendant confesses to a crime he did not commit. The corpus delicti rule requires the prosecution to present “substantial evidence” of all the elements of a crime before a defendant’s confession can be admitted into evidence.[ii]

False confessions? Well, yes… it happens.[iii] Maybe more than we would like to admit as a society, but it happens and make no mistake, throughout our history as a nation many people have falsely confessed to criminal offenses for whatever reason. Take for instance the high-profile unsolved case known as the Black Dahlia homicide which was from January 1947 in Los Angeles, California. The crime was never solved, but that did not stop many people from coming forward to confess to the offense.[iv] Most of the confessors were deranged persons looking for attention.

The corpus delicti idea is simple: before a confession or admission of guilt may be introduced at trial as evidence to prove the identity of the perpetrator, the government must prove by substantial evidence that a crime was committed independently of the statement. The proof of the crime can be circumstantial.[v]

Here is what this means in practice. Assume arguendo that the government wants to prove that Bob Victim was murdered, and that government also believes that Joe Defendant committed the crime but has no evidence directly linking Joe Defendant to the murder. Additionally, Joe Defendant was not arrested at the scene but after an investigation ultimately led his arrest.

Joe Defendant, during post-Miranda questioning, admits to police that he, in fact, murdered Bob Victim. The case is now at trial. Before the government can admit at trial Joe Defendant’s admission to the murder, the government must show by substantial evidence that:

(a) the Bob Victim is dead, and

(b) that Bob Victim died because of some criminal action or inaction by someone.

The actual identity of the someone does not have to be proven to the jury to introduce the statement. Once these two elements are demonstrated by substantial evidence, then and only then, can the government introduce for the jury that post-Miranda Joe Defendant admitted that he murdered Bob Victim. At that point, it is up to the jury to decide if the jury wants to believe Joe Defendant or not.

In Burks, the Florida Supreme Court explained:

We held, in State v. Allen, 335 So.2d 823, 824 (Fla.1976), that “the state has the burden of proving by substantial evidence that a crime was committed, and that such proof may be in the form of circumstantial evidence.” “This standard does not require the proof to be uncontradicted or overwhelming, but it must at least show the existence of each element of the crime.” Id. at 825. We also determined that the identity of the defendant as the guilty party is not a necessary predicate for the admission of a confession. We explained the policy reasons for the corpus delicti rule: “The judicial quest for truth requires that no person be convicted out of derangement, mistake or official fabrication.” Id. at 825.

Federal court abides by a similar construction when confronted with a corpus delicti issue. The United States Supreme Court in Wong Sun v. United States, explained:

It is a settled principle of the administration of criminal justice in the federal courts that a conviction must rest upon firmer ground than the uncorroborated admission or confession of the accused. (footnote omitted) We observed in Smith v. United States, 348 U.S. 147, 153, 75 S.Ct. 194, 197, 99 L.Ed. 192, that the requirement of corroboration is rooted in ‘a long history of judicial experience with confessions and in the realization that sound law enforcement requires police investigations which extend beyond the words of the accused.’ In Opper v. United States, 348 U.S. 84, 89-90, 75 S.Ct. 158, 162-163, 99 L.Ed. 101, we elaborated the reasons for the requirement:

‘In our country the doubt persists that the zeal of the agencies of prosecution to protect the peace, the self-interest of the accomplice, the maliciousness of an enemy or the aberration or weakness of the accused under the strain of suspicion may tinge or warp the facts of the confession. Admissions, retold at a trial, are much like hearsay, that is, statements not made at the pending trial. They had neither the compulsion of the oath nor the test of cross-examination.’[vi]

The idea is that confessions or admission can be manipulated when the out-of-court statement is recounted. It is referred to as an “out-of-court statement” because the statement is not made in front of the judge and jury, sworn, under penalty of perjury. Being the case, the law requires some sort of corroboration before the out-of-court statement can be admitted. As to what “corroboration” means in terms of evidence, that is another question for another day. At the very least, there must be some other, independent evidence other than the statement to prove the crime.

Corpus delicti is an issue that comes up from time to time in various types of prosecutions. For instance, a prosecution for driving under the influence where there is no witness that can place the accused behind the wheel of the car driving. If the state cannot prove that the accused was driving the vehicle or in actual physical control at the time of the offense independently of the accused’s statement, then the state cannot prove corpus delicti and the case must be dismissed, and the accused discharged.[vii] Another example is conspiracy to traffic in cocaine. “[T]hus, in order to establish the corpus delicti of conspiracy, the State must present “substantial evidence that the defendant and a coconspirator agreed to commit a crime and that the defendant intended to commit the offense.” State v. Allen, 335 So.2d 823, 835 (Fla. 1976). Corpus delicti may not be established solely by a confession, but confessions and admissions are properly considered in connection with other evidence to establish corpus delicti. Hodges v. State, 176 So.2d 91, 92 (Fla.1965); (further citations omitted).[viii] If the prosecution’s theory is that the statement itself is the conspiracy and the crime (without some overt act), then the crime of conspiracy is not proven. Another example is child abuse and/or lewd or lascivious molestation where there is no independent direct or circumstantial evidence to prove the crime. In other words, if the alleged victim of the offense does not testify that the offense occurred, the defendant’s confession is inadmissible to prove the crime.[ix]

Anthony Candela is the Trial Dog and a Board-Certified 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

www.candelalawfirm.com

Corpus delicti is a simple concept that is often overlooked in many prosecutions. If you think that you or your loved one’s case might have a corpus delicti issue, please do not hesitate to contact www.candelalawfirm.com or Anthony Candela at (813) 417-3645 to discuss the matter.

The purpose of this blog is purely education/information and should not be viewed as creating any attorney-client privilege between the reader and author.

If you have any questions, comments, or concerns, then please feel free to leave me a comment below and thank you reading this blog article. You can also check out the author at his profile at AVVO.com (Candela) 

Image source: pexels.com

No. 20-012


[i] https://www.dictionary.com/browse/corpus-delicti?s=t

[ii] See State v. Allen, 335 So.2d 823, 824 (Fla. 1976); and Burks v. State, 613 So.2d 441 (Fla. 1993).

[iii] https://innocenceproject.org/false-confessions-recording-interrogations/ (Innocence Project- False Confessions) or https://www.sciencemag.org/news/2019/06/psychologist-explains-why-people-confess-crimes-they-didn-t-commit

[iv] https://www.wired.com/2016/05/false-confessions/ Why People Confess to Crimes They Didn’t Commit. Jennifer Chaussee. Science. 05.24.16. See also 1932 Lindbergh kidnapping/homicide and 1996 JobBenét Ramsey homicide.

[v] See State v. Allen, 335 So.2d 823, 824 (Fla. 1976); and Burks v. State, 613 So.2d 441 (Fla. 1993).

[vi] Wong Sun v. United States, 371 U.S. 471, 488-9, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

[vii] Elser v. State, 915 So.2d 637 (Fla. 2d DCA 2005).

[viii] Chaparro v. State, 873 So.2d 631 (Fla. 2d DCA 2004).

[ix] State v. Tumlinson, 224 So.3d 766 (Fla. 2d DCA 2016).

Digital Estate Planning is for Everyone

Nowadays, estate planning must necessarily include a digital estate plan too. It is estimated that 60% of people will die without a will or any type of estate plan.[i] Additionally, most people will end up taking their passwords and usernames to their grave. While this might be acceptable if the person was a spy and keeping state secrets safe, it is a nightmare scenario for the next of kin, partner, spouse, or personal representative trying to windup and close your estate so that they can take care of your heirs and beneficiaries.

Keep in mind, once you are gone you cannot text them to tell them that the list is in a file on a “c” drive of your laptop or the list is written down a piece of paper in the junk drawer by the Keurig.

Most people nowadays have several online accounts, a computer or two, a smart phone or two, a few email accounts, several social media accounts, and a Disney+ or HULU or Netflix or Amazon account. People may also have tablets, smart refrigerators, thermostats, internet routers, or smart cars. Make no mistake, all these technological advances are fantastic and make our lives more enjoyable for the most part. It truly is the World of Tomorrow, but there is a downside.

The downside is this – – all these accounts also come with digital profiles, which include usernames, passwords, secret questions, two-step authentication, and other biometric security features to keep the bad guys out. Well, what happens if you die? How does anyone, including the good guys, get access to these accounts to close up your business or estate? Thus, the digital estate plan was born. And if you have not had the forethought to plan ahead, your estate could end up in a pickle trying to unwind a series of missing usernames and passwords.

Elsie Moreau writes in What to Do With Someone’s Online Accounts After They Die, “Social networking profiles represent a part of our lives. When a person passes away, families must often deal with the grim task of figuring out what to do with all their social profiles. If a deceased user kept their login and password credentials completely private, then getting into any of their social networking accounts to obtain information or delete the account can be a tricky process. When ignored, these online accounts tend to appear active well after the user’s death.”[ii]

It is one thing for any account to simply go dormant or inactive. It is entirely another thing for a recurring charge to continue to debit from an account long after the decedent is gone. In many instances, the personal representative has no idea that there is a random SiriusXM radio account or a local newspaper still debiting from an account. Or the reverse, the personal representative needs to change the account the mortgage payment is drawn from but cannot access the actual account because they do not know the username, password, and email account linked to the mortgage account. Insane.

There is a simple solution. Everyone should create a digital estate plan. If you were to pass today, would your significant other, business partner, personal representative, or estate attorney know how to access your smart phone, laptop or desktop computer, tablet, thermostat, smart refrigerator, email accounts, social media accounts, bank accounts, business accounts, subscriptions (like Microsoft 365, Adobe, Netflix, Amazon Prime …etc.), and other personal online accounts (like mortgage, water, gas, electric, cable, internet …etc.) Everything is online today and without the correct username and password, your estate may be stuck in neutral as the personal representative is stuck weeding through unnecessary red tape. And while all of this is occurring, your heirs and beneficiaries may be stuck waiting as well.

For instance, there is a growing body of work out explaining how to close a Gmail account after the user passes or how to retrieve certain information and data from a decedent’s smart phone.[iii] These resources cover a wide range of topics from how to close a Gmail account after someone has passed to how to retrieve data from a decedent’s smart phone. None of this was necessary twenty or twenty-five years ago when the Motorola flip-phone was all the rage and cutting edge, but it is now.

The digital estate plan should be updated at least once a year with as many account types, usernames, passwords, and email account associated with that account. The list should be as exhaustive and comprehensive as possible. While it might be unrealistic to keep the list updated monthly, a yearly review should be to save your estate any headaches down the road. “A stitch in time saves nine.”[iv]

At the very least, the personal representative should have access to the following information upon your death:

  1. Smart phone with any PIN information to access the phone.
  2. All computers or tablets used to access your accounts.
  3. All username and passwords for your email accounts.

The reason for these two at the very least is this – if the personal representative can access your phone, then he or she can receive text messages from various companies or providers when they access your accounts if the account requires a 2-step authentication. Additionally, the email account is necessary because many companies send links to the various email accounts if the personal representative must recover or change a lost password.

A digital estate plan accounts for electronic identity by creating a document that outlines all the above information for your spouse, partner, personal representative, and/or attorney. Some version of the digital estate plan should be kept with your current will and traditional estate plan. This information is beyond invaluable because when you are gone (or incapacitated for that matter), no one can call you to ask, “hey, what’s the password to (insert account type)?”

Anthony Candela is the Trial Dog and a Board-Certified 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

www.candelalawfirm.com

If you have estate planning questions about a digital estate plan or any estate planning question, then please do not hesitate to contact www.candelalawfirm.com or Anthony Candela at (813) 417-3645 to discuss the matter.

The purpose of this blog is purely education/information and should not be viewed as creating any attorney-client privilege between the reader and author.

If you have any questions, comments, or concerns, then please feel free to leave me a comment below and thank you reading this blog article. You can also check out the author at his profile at AVVO.com (Candela) 

Image source: pexels.com

No. 20-011


[i] Ashar, Linda C. Esquire. The Complete Guide to Planning Your Estate in Florida. Atlantic Publishing Group, Inc. 2001.

[ii] https://www.lifewire.com/your-online-accounts-when-you-die-3486015

[iii] https://joyofandroid.com/retrieve-data-deceased-persons-android-phone/ 

https://www.theguardian.com/tv-and-radio/2019/jun/02/digital-legacy-control-online-identities-when-we-die

https://www.everplans.com/articles/what-happens-to-my-email-accounts-when-i-die

https://www.everplans.com/articles/digital-estate-planning-how-to-organize-all-your-digital-property-and-assets

https://www.androidcentral.com/how-prepare-your-google-account-when-you-pass-away

https://www.bloomberg.com/news/articles/2020-03-03/this-is-what-happens-to-your-emails-after-you-die

[iv] https://www.bbc.com/news/newsbeat-54262657#:~:text=It’s%20first%20recorded%20in%20a,%2C%20nine%20%2D%20stitches%20later%20on.

“Fruit of the Poisonous Tree” not so Tasty

The “fruit of the poisonous tree” is a legal catchphrase that refers to evidence or contraband seized in violation of the Fourth Amendment. When physical evidence is unconstitutionally obtained by the government in violation of the Fourth Amendment, the accused may have the remedy of excluding the seized evidence in court. The “exclusionary rule” disincentivizes law enforcement from violating citizen’s rights under the constitution. The “exclusionary rule” is basically the only legal mechanism that keeps law enforcement in check in this regard.

Prior to the ratification of the Constitution and the Bill of Rights, British Troops would harass the colonists in various ways. Some of the ways have remained common knowledge today like “No taxation without representation.” Others are now remnants of a time long past and are contained only within our founding documents like the protections grafted into the Bill of Rights. Remember, the Bill of Rights was in direct response to the tomfoolery of the Crown and its troops towards the colonists.

In colonial times, British Troops would march right into a person’s home, usually unannounced and without any suspicion of criminal wrongdoing, and search the residence for contraband. Sometimes it was for the fun of it. Sometimes it was to harass a local merchant, politician, or prominent person who had spoken out against the Crown. And sometimes it was done to simply remind the colonists who oversaw the colonies and was in charge.

During these unsanctioned searches, if contraband was recovered, then the colonist was taken into custody, jailed, and languished in custody awaiting a trial. Or, on the other hand, the colonist was tried on the spot in a secret trial, convicted, and sentenced unfairly. Like the rest of the Bill of Rights, the Fourth Amendment was a direct response to this type of nonsense, chicanery, and shenanigans.

Without the “exclusionary rule,” the Fourth Amendment has no teeth. The “exclusionary rule” is essentially a Sword of Damocles hanging over the government’s head to follow the law and to do the right thing. In this role, the “exclusionary rule” is a powerful remedy because it forbids the government from using that unconstitutionally seized evidence in the prosecution of the accused. In this regard, physical evidence may refer to a firearm, narcotics, wire intercepts, fingerprints, DNA, …etc. For instance in a possession of cocaine prosecution, if the evidence of narcotics (and any testimony about the narcotics evidence) is suppressed and excluded from the court proceedings due to an unconstitutional search and seizure, it is virtually impossible to prosecute an accused for possession of cocaine without the evidence of cocaine.

Keep in mind, however, the amendments to the constitution are not self-executing and require the aggrieved person to raise the issue in court with the judge prior to trial. To trigger the Fourth Amendment, there must be governmental action (as opposed to a private citizen finding evidence). Without governmental action, there is no Fourth Amendment violation. For example, the post office makes a huge mistake and delivers a package marked for your house to your neighbor’s house. Your neighbor ignores that the package is addressed to you and opens it. Inside the package, your neighbor learns that the package contains a kilogram of packaged cocaine and reports you to the police. The cocaine package is turned over to the police. There is no Fourth Amendment violation in that scenario because there was no unconstitutional seizure of evidence because there was no “governmental action” because a private citizen recovered the contraband.

Unconstitutionally seized evidence only has relevance in criminal or quasi-criminal prosecutions. If a defendant believes that law enforcement officers illegally seized evidence or arrested the defendant, the defendant must raise the issue in the trial court. This is almost certainly accomplished through a pretrial motion to suppress the illegally seized evidence.

The Fourth Amendment reads:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Id. (1789) When the Fourth Amendment was ratified, most Americans across the land vividly remembered the abuses and atrocities perpetrated by the British troops. In this regard, the colonists understood legal nuances of such behavior and did not need to spell out any further what needed to be protected other than what was actually written in the body of the Fourth Amendment.[i] Many of these sublet nuances in terms of thr language, syntax, and context have been lost to history and time. One thing was for certain, the people still want to be secure from indiscriminate, arbitrary, and capricious governmental harassment in the form of general warrants and writs of assistance.[ii] Clearly, Americans want to be free from “unreasonable” searches and seizures.

Coming full circle, the legal phrase “fruit of the poisonous tree”[iii] was first coined by Justice Felix Frankfurter describing evidence that had been unreasonably seized by the government. See Nardone v. U.S., 308 U.S. 338, 341, 60 S.Ct. 266, 84 L.Ed. 307 (1939). Over the next few years, the “fruit of the poisonous tree” became the working term of art referring to any unconstitutionally seized evidence and its court remedy, the Weeks Exclusionary Rule.[iv]

In 1920, Justice Oliver Wendell Holmes, Jr., explained in Silverthorne Lumber[v] that the Weeks Exclusionary Rule applied to Fourth Amendment violations in federal court.

Although based in the language of the Fourth Amendment, the exclusionary rule remedy grew out of an understanding of fairness and purpose. If the government could prosecute someone with illegally obtained evidence, then what exactly was the purpose of the Fourth Amendment? And how was that fair? What did the Fourth Amendment protect if it could not be enforced on its face? Obviously, the government could not/should not get a windfall by circumventing the requirements of the Fourth Amendment…thus, the exclusionary rule remedy.

As stated, however, the problem was that at that specific time the Weeks Exclusionary Rule only applied to federal court and was not selectively incorporated to the states. In America, there are 51 criminal jurisdictions – the fifty states and the federal system. After Weeks, the states were free to adopt whatever understanding each stated wanted to use – some allowed unconstitutionally seized evidence to be used in state prosecutions and some did not. It was chaos without any predictability for judges, lawyers, and law enforcment.

Ten years after Nardone, Justice Frankfurter, who had so eloquently coined the phrase “fruit of the poisonous tree” in Nardone, penned a strange majority opinion in Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782 (1949). In Wolf, Justice Frankfurter stated that the Weeks Exclusionary Rule did not apply to the states. It was a dark day for the Fourth Amendment; it would not be until 1961 and the Supreme Court’s decision in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961)[vi] that this mess would all get straightened out once-and-for-all. Mapp overruled Wolf and applied the Weeks Exclusionary Rule to the Fourth Amendment via the Fourteenth Amendment’s equal protection clause.[vii]

If the trial court determines that the seized evidence is “fruit of the poisonous tree,” then the government will most likely not be able to use that unconstitutionally seized evidence against the accused.[viii] The basics are relatively easy to grasp. On the other hand, what is and is not unconstitutionally seized evidence depends largely on the factual scenario before the court.

Anthony Candela is the Trial Dog and a Board-Certified 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

www.candelalawfirm.com

If you or a loved one believe that the police unconstitutionally seized evidence in your case, then please do not hesitate to contact www.candelalawfirm.com or Anthony Candela at (813) 417-3645 to discuss the matter. As a three-time, board-certified criminal trial defense attorney, I have the experience to represent you accurately and effectively. Over my 20-years, I have handled countless criminal trials and appeals so that I thoroughly understand the issues involved, especially unconstitutional searches and seizures.

The purpose of this blog is purely education/information and should not be viewed as creating any attorney-client privilege between the reader and author.

If you have any questions, comments, or concerns, then please feel free to leave me a comment below and thank you reading this blog article. You can also check out the author at his profile at AVVO.com (Candela) 

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No. 20-010


[i] Boyd v. U.S., 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886)

[ii] The general understanding of a writ of assistance is a court order to a law enforcement officer to perform some task. The abuses of the writ of assistance was one of a few sparks that led to the start of the Revolutionary War.

[iii] Nardone v. U.S., 308 U.S. 338, 341, 60 S.Ct. 266, 84 L.Ed. 307 (1939).

[iv] Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914)

[v] Silverthorn Lumber Co v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920)

[vi] Justice Frankfurter was one of three justices that dissented in Mapp.

[vii] See United States v. Ceccolini, 435 U.S. 268, 98 S.Ct. 1054, 55 L.Ed.2d 268 (1978); Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); Nardone v. United States, 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307 (1939); Silverthorn Lumber Co v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920); and Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, (1961) overruling Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782 (1949) (Applies the Weeks Exclusionary Rule to the States via the Fourteenth Amendment. The Weeks Exclusionary Rule is designed to prevent police misconduct and prohibits prosecuting attorneys from using illegally seized evidence. See Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914).)

[viii] Like any constitutional rule, there are very few limited exceptions.