A Word About “Pocket Warrants”: Unicorns Are More Real

It is contrary to the Fourth Amendment for a law enforcement officer (“LEO”) to arrest a suspect based upon a “probable cause pickup request” (“PCPR”). The PCPR is referred to on the street as a “pocket warrant.” Anyone arrested based on a “pocket warrant” needs to seek immediate legal representation to investigate and determine if the arrest was constitutional.

Any analysis of an arrest begins with a review of the Fourth Amendment ratified in 1789, the Fourth Amendment states:

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. “For the Fourth Amendment protects people, not places.” Katz v. United States, 389 U.S. 347, 351-2, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (Emphasis added).

Regarding “routine felony arrests (without a warrant)”, the United States Supreme Court in Payton v. New York, explained:

It is thus perfectly clear that the evil the Amendment was designed to prevent was broader than the abuse of a general warrant. Unreasonable searches or seizures conducted without any warrant at all are condemned by the plain language of the first clause of the Amendment. Almost a century ago the Court stated in resounding terms that the principles reflected in the Amendment “reached farther than the concrete form” of the specific cases that gave it birth, and “apply to all invasions on the part of the government and its employees of the sanctity of a man’s home and the privacies of life.” (internal citation omitted)

Payton v. New York, 445 U.S. 573, 585, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). (emphasis added) “Seizures” in this context could very well mean an arrest (as the ultimate seizure of a person). The Payton case dealt with a routine, non-emergency, warrantless arrest of a suspect based upon probable cause at a person’s home. Id. Warrantless arrests are analyzed under a reasonableness standard and are typically assumed to be “unreasonable” unless and until the government can demonstrate probable cause and a valid exception to the warrant requirement.

But generally, warrantless arrests on the street are unconstitutional unless supported by probable cause. See Edwards v. Baer, 863 F.2d 606 (8th Cir. 1989); Hannah v. City of Overland, Mo., 795 F.2d 1385, 1389 (8th Cir. 1986); and United States v. Clark, 754 F.2d 789, 791 (8th Cir. 1985). There are many instances were a warrantless arrest is simply unreasonable.

The “pocket warrant” or PCPR is lazy law enforcement work at its finest. The idea is that the law enforcement believes that it has developed facts that establish “probable cause” to authorize and constitutionally justify an arrest. And instead of drafting a warrant, swearing to the information, and going before a judge, the LEO simply enters the information into a computer database and calls it a shift. Keep in mind, any LEO armed with the sworn affidavit can appear in front of the judge to get the arrest warrant.[i] There is no real reason other than pure laziness to not follow the constitutional procedure.

The creation of the Fourth Amendment was no accident. It was a necessary government concession at the time of our country’s founding. And for good reason. Scholars presume that ratification of the Bill of Rights was in direct result to British troops unfair treatment of the American colonists. Although the historical references are scant, it appears that these troops would simply show up at the home of a colonist, enter the residence without permission, and search for contraband without any reason or justification for the search; thus, the phrase “probable cause” was born.

In its most basic sense, “probable cause” (or “PC” as it is called) simply means that there is some constitutionally objective justification to believe that a crime is, has, or is about to occur. After America won its war for her independence, the new citizens struggled and grappled with these issues while adopting our new government.

Fast forward approximately 230 years from the ratification of the Fourth Amendment and thousands upon thousands of court cases interpreting the amendment later, and we find ourselves in a nearly identical posture as those colonists did back in Eighteenth Century. The constitutional struggle to balance personal freedoms and liberties, and the government’s right to maintain law and order.

Under a strict Fourth Amendment analysis, a law enforcement officer may not make an arrest or search a house without a warrant. The warrant must be issued by a “neutral and detached” magistrate. It must be based upon “probable cause.” The “probable cause” facts must be sworn to under oath and the person or place must be described with particularity.

As indicated above, the Payton case was dealing with a routine, non-emergency, warrantless arrest at a person’s home. The Court concluded that the government was not allowed to make a warrantless arrest at a person’s home without some “exigent circumstances.” “Exigent circumstances” is a term of art that typically refers to some type of emergency. For instance, “exigent circumstances” could be that the accused is going to destroy evidence, or that the officers are “in fresh pursuit” and the suspect ducks into a residence to hide. Although not exhaustive, those examples might be considered “exigent circumstances” which would relieve law enforcement from the requirement of obtaining an arrest warrant before entering the house to arrest the suspect (but the constitution will still require (regardless of the exigencies or not) that the LEO have already established “probable cause” for the arrest). “Probable cause” cannot be later developed after the arrest, but must be fully present at the time of the arrest for the arrest to be constitutional.

In Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971),[ii] the Court explained that “probable cause” determination in the warrant context must be made by “neutral and detached” Article 3 judges and magistrates based upon sworn allegations. The Court absolutely rejected the idea that prosecutors and law enforcement officers could constitutionally issue their own warrants and forbid that non-judical practice. Coolidge, supra.

The long and short of it is this: unless there is some situation that instantly creates “probable cause” which the officer personally witnesses that crime occur, and attempts to make a contemporaneous arrest, then an arrest warrant authorized under the Fourth Amendment is most likely required. As Coolidge explained, LEO’s and prosecutors are not “neutral and detached magistrates” and are incapable of issuing warrants.

Additionally, the Court has been reluctant to ease the warrant restriction without some fantastic reason (and lack of resources or expediency are not acceptable). Take for instance the case of Birchfield v. North Dakota, 579 U.S. —, 136 S.Ct. 2160, 195 L.Ed.2d 560 (2016). Birchfield dealt with, inter alia, blood draw evidence[iii] preservation to be tested and used in possible driving under the influence prosecutions.

At the 20 April 2016 oral arguments,[iv] the justices were thoroughly unimpressed with the arguments from the different states regarding the excuses offered as to why the states could not get search warrants to draw blood. In fact, the justices flat rejected the idea of not getting a warrant under those circumstances.

How is a non-judicially supervised PCPR or “pocket warrant” (which is not a warrant) constitutionally valid? If a blood draw warrant can be obtained anywhere between 20 minutes and an hour, why cannot law enforcement get a real, bona fide arrest warrant based upon supposed facts that establish “probable cause?” And in Birchfield, nearly all the justices agreed on the blood draw warrant requirement (while some differed regarding a field breath test for alcohol). Id.

The answer is two-fold. First, getting a warrant requires a little amount of work and is not tedious or overburdensome. In fact, the justices marveled that in today’s day-and-age, warrants could be secured in seconds electronically in some jurisdictions (with rotating judges on duty 24 hours a day). Second, with the warrant process, there is always the possibility that the judge/magistrate might not issue the warrant, but if the arrest warrant is issued – then it is presumed that there is valid probable cause to arrest the suspect. The arrest will be presumed “reasonable.” A PCPR or “pocket warrant” has none of those protections, is illegal and unconstitutional under a Coolidge, supra, analysis.

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 has been arrested on a PCPR or “pocket warrant,” 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.

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 click 

Image source: pexels.com

No. 20-009


[i]  Many states have some version of the “fellow officer” rule. Florida recognizes the legal principal called the “Fellow-Officer” rule. See §901.18, Fla. Stat.; Voorhees v. State, 699 So.2d 602 (Fla. 1990). Under the “Fellow-Officer” doctrine, a probable cause determination (and only a probable cause determination) can transfer from one officer to another to make an arrest within a reasonable amount of time. This rule only applies for immediate “probable cause” determinations. Otherwise, a warrant is required.

[ii] See also Collins v. Virginia, — U.S. —, 138 S.Ct. (2018).

[iii] “Blood draw evidence” refers to the procedure where law enforcement takes a potentially intoxicated driver from the scene of a suspected driving under the influence offense and forces the accused to submit to a blood draw to preserve any evidence of wrong doing.

[iv] https://www.oyez.org/cases/2015/14-1468  (The link to listen to the oral arguments at the United States Supreme Court from Birchfield v. North Dakota case.)

Justified or Excused? The Basics of “Affirmative Defenses” in Criminal Cases in Florida

“I did it… but I was justified.” “I did it… but I was excused.”

There are more than a few affirmative defenses in Florida. An “affirmative defense” is a defense which admits the cause of action, but avoids liability, in whole or in part, by alleging an excuse, justification, or other matter negating or limiting liability.[i] In layman’s terms, “I did it, but my act is justified or excused.” If the defense is accepted by the jury, then the verdict must be “not guilty” because the entire criminal act is excused or justified (and, therefore, legally negated). If the defense is not accepted, the accused has admitted to all the elements of the offense (and usually convicted him or herself).

An “affirmative defense” in a criminal case with limited exceptions requires a defense case-in-chief and the accused to testify as a witness in his or her own defense. Almost all “affirmative defenses” in the criminal sense require some evidence to present the defense.

Typically, the prosecution has the burden to proving the defendant’s “guilt beyond a reasonable doubt.” When an “affirmative defense” is presented, the defendant has the burden of proving the elements of the “affirmative defense” by a mere preponderance[ii] of the evidence (with a few notable exceptions).[iii] The exceptions are insanity (which requires “clear and convincing evidence”)[iv] and self-defense or justifiable use of force (which requires a mere showing which then shifts the burden back to the prosecution to disprove self-defense). “And when the facts are disputed on an affirmative defense raised by the defendant, the case should be submitted to the jury. (Citation omitted)”[v]

Most “affirmative defenses” to criminal cases in Florida do not require notice to be provided to the State except alibi (e.g., “I was not there.”)[vi] or insanity (e.g., “I did not know what I was doing was a crime because I am really mentally ill and do not understand right from wrong”).[vii] Apparently, the rule makers believe that an alibi defense presented to the prosecutor with time to investigate the matter might cause the case to be dismissed (if in fact the perpetrator can prove that his or her whereabouts was completely elsewhere from the location of the crime). As for insanity, the rules allow for the prosecutors to obtain a psychological evaluation of the accused for trial to counter the “affirmative defense.”[viii] In the light most favorable to the prosecution, these reasons for these rules seems fair.

The basic “affirmative defenses” in criminal cases in Florida are:

  • Consent;[ix]
  • Necessity;[x]
  • Advice/mis-advice of counsel;[xi]
  • Entrapment;[xii]
  • Duress;[xiii]
  • Renunciation (abandonment/withdrawal);[xiv]
  • Self-defense (justifiable use of force (deadly or non-deadly) which also includes defense of others or defense of property);[xv] and
  • Insanity.[xvi]

Alibi is an affirmative defense, but it is different from the above defenses because alibi does not require the defendant to admit the elements of the offense as proven to assert the defense. Alibi simply means that the defendant was elsewhere when the crime occurred and, therefore, could not be the perpetrator.

On the other hand, there is an inherent danger is proceeding with an affirmative defense if the defense is not fully supported by the facts or the defense is simply cockamamie under the circumstances. For instance, the defendant is charged with aggravated battery with a deadly weapon. At trial, the witnesses testify that the defendant walked over to the victim and struck him with a baseball bat for no reason because the victim was minding his own business. The prosecution also plays for the jury a recording from a security camera that captures the crime and completely corroborates the witnesses and victim’s testimony. Under these circumstances, it might be completely silly to attempt a self-defense defense at trial. If the “affirmative defense” is not fully supported by the evidence at trial, then the defendant is flat admitting to the jury “I committed the crime.”

Affirmative defenses require preparation and more preparation to be effectively used at trial and should not be undertaken lightly. An ill-conceived “affirmative defense” will get the accused nearly automatically convicted. These dangers must be discussed with the defendant prior to trial or filing the specific notices. “Affirmative defenses,” because the defendant is admitting to the crime, must be agreed upon and to by the defendant.[xvii] The best practice is to discuss the dangers and benefits of the specific “affirmative defense” and get written consent that (a) the matter was discussed and (b) the defendant is or is not in agreement with presenting the specific “affirmative defense.”

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

Please do not hesitate to contact www.candelalawfirm.com or Anthony Candela at (813) 417-3645 to discuss your trial or appeal. 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. I have successfully presented many of these “affirmative defenses” to a jury with more than satisfactory results and am absolutely familiar with how they work and when to use them.

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 click 

https://www.avvo.com/attorneys/33578-fl-anthony-candela-1291219.html

Image source: pexels.com

No. 20-008


[i] St. Paul Mercury Ins. Co. v. Coucher, 837 So.2d 483 (Fla. 5th DCA 2002).

[ii]  Also referred to as the “greater weight of the evidence.” If this were a scale, the proponent presenting the evidence must merely tip the scale ever so slightly in their direction 51% to 49%.

[iii] Harriman v. State, 174 So.3d 1044 (Fla. 1st DCA 2015) (The defense has to prove an affirmative defense by a preponderance of the evidence).

[iv]  Rodriguez v. State, 172 So.3d 540 (Fla. 5th DCA 2015)

[v] Oliver v. State, 293 So.3d 1102 (Fla. App. 2020) (citing Krupkin v. State, 119 So.3d 1267, 1270 (Fla. 1st DCA 2013).)

[vi] See Fla. R. Crim. P. 3.200.

[vii] See Fla. R. Crim. P. 3.216; and §775.027, Fla. Stat. (S. 1, Ch. 2000-315)

[viii]  Obviously, if the State’s doctors and professionals concur with the defense experts the defendant might be found “not guilty by reason of insanity” (“NGRI”)  (which is not the same as simply “not guilty.”) If a defendant is found and adjudicated NGRI, the defendant will be sent to a hospital for a period depending on the severity of the offense. NGRI does not automatically convey a person’s freedom and liberty to them because of the adjudication.

[ix] Hicks v. State, 407 So.2d 252 (Fla. 5th DCA 1981); Bolden v. State, 637 So.2d 337 (Fla. 2d DCA 1994) (consent is an affirmative defense to burglary).

[x]  Oliver, supra.; Knight v. State, 187 So.3d 307 (Fla. 5th DCA 2016) (necessity is an affirmative defense to felon in possession of a firearm).

[xi] Gause v. First Bank of Marianna, 457 So.2d 582 (Fla. 1st DCA 1984).

[xii] State v. Munro, 463 So.2d 484 (Fla. 5th DCA 1984).

[xiii] Franklin v. State, 275 So.3d 192 (Fla. 4th DCA 2019).

[xiv] Harriman, supra.

[xv] “Self-defense is an affirmative defense that must be disproven by the state. See Mosansky v. State, 33 So.3d 756, 758 (Fla. 1st DCA 2010) (“The defendant has the burden of presenting sufficient evidence that he acted in self-defense in order to be entitled to a jury instruction on the issue. But the presentation of such evidence … merely requires the state to present evidence that establishes beyond a reasonable doubt that the defendant did not act in self-defense.”).” Harriman, 174 at 1050 Fn. 2.

[xvi] Rodriguez, supra.

[xvii]  In 2018, the United States Supreme Court decided McCoy v. Louisiana, 584 U.S. —, 138 S.Ct 1500, 200 L.Ed.2d 821 (2018). The facts of McCoy are not necessary to this discussion, but the holding is- – a criminal defense attorney (even with the best intentions for the accused) may not admit a defendant’s guilt without his/her consent and, thus, deprive the defendant of his/her right to trial (and force the government to prove the case against him/her beyond a reasonable doubt). The constitution forbids it. There are types of cases (like death penalty cases) where the best strategy is to admit to the homicide (to win some credibility with the jury) and the focus all the attention on mitigation to influence a life versus a death recommendation. Logically, if the defense attorney cannot admit guilt without the defendant’s consent based upon McCoy, supra, then the defense attorney cannot present an “affirmative defense” (which admits guilt if the “affirmative defense”) without the defendant’s consent.

Acquittal, By Design

For whatever reason, too many people accused of a crime now-a-days choose to accept a plea bargain and forego their constitutional right to a jury trial.[i] There are so many theories and reasons why this might be the situation, but I am here to offer a contrary perspective on why there should be more jury trials. Juries were originally designed to acquit.

Contrary to popular belief, I am here to tell you that the purpose and function of a criminal jury is to acquit the accused. Justice Thurgood Marshall once wrote, “I begin from the fundamental premise, which hardly bears repeating, that ‘[t]he purpose of a trial is as much the acquittal of an innocent person as it is the conviction of a guilty one.’[ii] Think about Justice Marshall’s statement. As a society, we have forgotten that a criminal jury trial is just as much about clearing the accused’s name as it is obtaining a conviction. The other thing that people often fail to appreciate is this: as long as there are no constitutional errors that interfered with jury trial right and process, whatever verdict a criminal jury returns is justice because the system worked.[iii]

During jury selection, I talk with the potential jurors about this idea that this criminal trial is also about clearing my client’s name. It is my client’s chance to get their liberty, freedom, and peace of mind back as it is anything else. As we discuss this topic during the selection process, it is always interesting for me to see few light bulbs go off above potential juror’s heads as they have a Eureka moment. Many of them have never considered that a trial could be for that purpose. In all honesty, how many Americans think of a criminal trial as the mechanism to clear the accused’s name? Probably very, very few. The truth is Americans are incessantly bombarded by media accounts of criminal atrocities all day long.

Our founders realized that the criminal justice system needed to be fair (otherwise what was the point?) After the ratification of the new constitution, the citizens of the several states realized that the new government without institutional checks could perpetrate the same atrocities on the citizens as the British troops did prior to Independence. Out of this dilemma, the Bills of Rights was born.

Over time, the founders put in place a few major constitutional mechanisms to protect the integrity of the system of the criminal justice system. These included a speedy and public trial (i.e., no star chambers or drumhead trials), a trial in the jurisdiction where the crime had occurred, notice as to the charges (i.e., no more secret charges), to confront and cross-examine the witness against the defendant, the assistance of counsel for a defense, no more excessive fines, the right to remain silent, and reasonable terms of release on bail pending trial. All these rights grew directly out of the years of abuse by the Crown. Many of these factors have now come to define what a fair trial should include.

Additionally, the new citizens realized that the most important part of the new criminal justice system was the jury. In no specific order, these mechanisms are:

  • the burden of proof,
  • proof beyond a reasonable doubt,
  • the presumption of innocence,
  • the right to confront and cross-examine, and
  • the right to remain silent.

Each factor is a legal beast, but together these constitutional components complement each other to form the foundation of our system of justice.

And the backbone of the system are the wonderful citizens that give of their time to come and listen to the evidence presented by the government to determine an accused’s fate – – the jury. In every criminal trial, the jury is commanded that the accused is to be presumed “innocent” or “not guilty” unless and until the government proves otherwise to the exclusion of reasonable doubt. By design, it is the jury’s solemn responsibility to doubt everything and make the government satisfy the constitution’s extreme requirements. In this regard, a trial should be an exceedingly difficult proposition for the government regardless of its evidence; a good jury isn’t simply a “rubber stamp” for the government but an intense crucible challenging everything (because if the government is going to lock someone in a cage for a term of years – –  everyone must have extreme confidence that the charges have been proven beyond a reasonable doubt.)

Thinking of it in these terms, the following instruction is read verbatim to the jury in a Florida criminal case.

The defendant has entered a plea of not guilty. This means you must presume or believe the defendant is innocent. The presumption stays with the defendant as to each material allegation in the [charging document][iv] through each stage of the trial unless it has been overcome by the evidence to the exclusion of and beyond a reasonable doubt.

To overcome the defendant’s presumption of innocence, the State has the burden of proving the crime with which the defendant is charged was committed and the defendant is the person who committed the crime.

The defendant is not required to present evidence or prove anything.

Whenever the words “reasonable doubt” are used you must consider the following:

A reasonable doubt is not a mere possible doubt, a speculative, imaginary or forced doubt. Such a doubt must not influence you to return a verdict of not guilty if you have an abiding conviction of guilt. On the other hand, if, after carefully considering, comparing and weighing all the evidence, there is not an abiding conviction of guilt, or, if, having a conviction, it is one which is not stable but one which wavers and vacillates, then the charge is not proved beyond every reasonable doubt and you must find the defendant not guilty because the doubt is reasonable.

It is to the evidence introduced in this trial, and to it alone, that you are to look for that proof.

A reasonable doubt as to the guilt of the defendant may arise from the evidence, conflict in the evidence, or the lack of evidence.

If you have a reasonable doubt, you should find the defendant not guilty. If you have no reasonable doubt, you should find the defendant guilty.[v]

In federal court in Florida, the following similar instruction is provided to the jury.[vi] It reads:

As you know, this is a criminal case. There are three basic rules about a criminal case that you must keep in mind.

First, the defendant is presumed innocent until proven guilty. The indictment against the defendant brought by the government is only an accusation, nothing more. It is not proof of guilt or anything else. The defendant therefore starts out with a clean slate.

Second, the burden of proof is on the government until the very end of the case. The defendant has no burden to prove [his] [her] innocence or to present any evidence, or to testify. Since the defendant has the right to remain silent and may choose whether to testify, you cannot legally put any weight on a defendant’s choice not to testify. It is not evidence.

Third, the government must prove the defendant’s guilt beyond a reasonable doubt. I will give you further instructions on this point later, but bear in mind that the level of proof required is high.

These instructions reflect the importance of the concepts to the trial process. These are not simply formalities but should be considered in this fashion: if we, as a society, are going to take someone freedom and liberty based on an allegation, and if convicted, we are going to lock them in a hole or cage, then we must ensure that the government is held to abide by these constitutional requirements to endure that the process is fair and constitutional. Make no mistake, the government is a giant machine and often has no compunction for criminal defendants. The government is a behemoth without compassion. Most days in America, Goliath pummels David and his sling. And, if you think I am overstating the situation, how come there are so many individuals that have been exonerated over the past couple of decades? It is because the system did not work as it should. It is not important who is at fault, but it is up to all of us to require juries to scrupulously guard against cynicism in the justice system.

Criminal cases are vastly different from civil cases. In civil a case, the side bringing the action usually must just prove with a little more oomph than the other side something happened or did not happened, not so in criminal court. In criminal court, the constitutional criminal rights are front and center. In a criminal case, the government must remove the specter of reasonable doubts about the proof. As such, “beyond a reasonable doubt” is the highest standard of proof for a trial. There is a genius in its design.

On the one hand, it is the level of proof that the constitution requires be proven before the government can revoke a citizen’s liberty and freedom or impose and levy an outrageous tax, fee, or fine. On the other hand, “reasonable doubt” there to provide a sense of security to jurors who may be wondering or attempting to second guess their verdict because of the seriousness of endeavor. In this regard, the jury can take solace in the fact that either the case was proven “beyond a reasonable doubt” or it was not.[vii] If the case has not been proven “beyond a reasonable doubt,” then the jurors don’t have to wonder or guess, the verdict is simply “not guilty” and

Just as powerful, is the “presumption of innocence.” Some people pay lip service to the concept, but I assure you that the “presumption of innocence” is nearly all powerful in a criminal case. In our justice system, the government has all the resources, like prosecutors, law enforcement, and the crime labs …etc., at its disposal. It also has many specific laws on the books to assist in the prosecution. Many of these laws have become heavy handed in recent years. And it often has public sentiment on its side.

On the other side of this equation is the accused. Our founders recognized the complete inequity in the system and decided to create the “presumption of innocence” as the counterbalance to the government. It works in conjunction with the burden of proof. Think about it, if the government cannot meet its burden then the presumption of innocence commands the jury to acquit. Accusations are easy to make but are more difficult to prove.

Lastly, everyone accused of a crime has the right to remain silent. This is not some television slogan or punchline, but a bedrock of the system. The accused does not have to prove their innocence as they might have to do in some other countries. In America, the government must prove its case. Period. If the government does not, then the presumption of innocence controls and commands that the jury acquit the defendant. The accused does not have to say anything in this regard.

It is clear to any observer that the proper purpose of the jury is to acquit the accused unless and until the government can prove otherwise, beyond to the exclusion of a reasonable doubt, to overcome the presumption of innocence. Remember, Justice Marshall’s explanation, “[t]he purpose of a trial is as much the acquittal of an innocent person as it is the conviction of a guilty one.

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

www.candelalawfirm.com

Please do not hesitate to contact www.candelalawfirm.com or Anthony Candela at (813) 417-3645 to discuss your trial or appeal. As a three-time, board-certified criminal trial defense attorney, I have the experience to accurately represent you. Over my 20-years, I have handled countless criminal trials and appeals to thoroughly understand the issues involved. A good defense attorney does not let the government diminish the role of the jury in a criminal trial. A good defense attorney does not let the government diminish the presumption of innocence or proof beyond a reasonable doubt. When representing the accused, a good defense attorney makes for darn sure that government abides by these principles.

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 click  

https://www.avvo.com/attorneys/33578-fl-anthony-candela-1291219.html

Image source: pexels.com

No. 20-007


[i]  Despite what people think and you hear in the media, there is no constitutional right to a plea bargain, only a trial. It is surprising to most Americans who think of the trial as a rarity (because there are fewer cases that proceed to trial for whatever reason). In fact, most historians believe that that the plea bargain was inappropriate legal mechanism to resolve a criminal case until its wider acceptance in the criminal court system the 1960s. There are historical references to plea bargains going back to the Salem Witch Trials in 1692.  https://www.britannica.com/topic/plea-bargaining

[ii] See U.S. v. Bagley, 473 U.S. 667, 692, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985) (Justice Marshall dissent, “I begin from the fundamental premise, which hardly bears repeating, that “[t]he purpose of a trial is as much the acquittal of an innocent person as it is the conviction of a guilty one.” Application of Kapatos, 208 F.Supp. 883, 888 (SDNY 1962); see Giles v. Maryland, 386 U.S. 66, 98, (1967) (Fortas, J., concurring in judgment) (“The State’s obligation is not to convict, but to see that, so far as possible, truth emerges”).”

[iii] Please do not misunderstand me because I care deeply about this topic, but if law enforcement, the prosecution, and the judge all abide by the constitution and the law, and the jury returns a verdict after deliberations based on the evidence presented in the courtroom and the law, and there aren’t any appellate errors, then justice has been served. Period. I might not like the verdict for personal or professional reasons, but justice has been served. The verdict must truly a product of a trial that was constitutionally copasetic. Under these circumstances, I do not have a problem with a client going to prison if he/she was proved guilty beyond a reasonable doubt in a constitutionally fair trial. Whether the sentence is fair might be a discussion for another time and place, but as discussed above, the system worked. As Americans, I think that is all we can ask for in this regard.

[iv] In Florida, the charging document can be a citation, an information, an indictment (first degree homicide only), or a juvenile petition.

[v] Florida Standard Jury Instruction for Criminal Cases, 3.7 Plea of Not Guilty; Reasonable Doubt; and Burden of Proof. http://www.floridasupremecourt.org/jury_instructions/instructions-ch3.shtml

[vi] http://www.ca11.uscourts.gov/sites/default/files/courtdocs/clk/FormCriminalPatternJuryInstructions2016Rev.pdf

[vii] Gerry Spence, voir dire on reasonable doubt.

You don’t say … or maybe you did. A brief explanation of witness impeachment by prior inconsistent statement.

In a criminal trial, a jury must determine credibility. Who to believe? One of the jury’s most important tasks is evaluating and weighing the evidence that was presented in court. The evidence can come in the form of sworn testimony or physical evidence. In making its determination, there is no set calculus, mathematical formula, or mechanical application as to how the jury is supposed to accomplish this task; jurors are simply left to their common sense, life experiences, and the jury instructions provided by the court.

Although jury deliberations are completely private, the general understanding is that during jury deliberations, the jurors are supposed to carefully consider the testimony and evidence that was presented to them during the trial to determine if the prosecution proved its case beyond and to the exclusion of a reasonable doubt. Before the jurors retire to deliberate, the jurors are instructed that “it is up to [them] to decide what evidence is reliable.” The jurors are provided with basic jury instructions that outline general propositions for “weighing” the evidence.

There are few reasons offered to the jurors in the instructions as to why a jury might not want to believe a specific witness. One of the possible reasons no to believe a specific witness is that witness been impeached. In this sense, “impeached” means that it has been demonstrated that the jury should not believe this witness for whatever reason. In fact, impeachment is a potential reason for a juror or the jury (as a whole) to find a witness less reliable or completely unbelievable. It is completely up to the juror.

Generally, witness impeachment refers to the process for calling into question the credibility of the witness.[i] There are several different acceptable impeachment reasons that a juror may use to believe or not believe a witness.[ii] For instance, the witness is biased, or has been convicted of a felony, or crime of dishonesty, or has an interest in the outcome of the case, or was paid to testify. Any of these reasons might tip the scales into drawing into question the truth and veracity of a witness’s testimony or claims, or not. Keep in mind, all witnesses called to the stand to testify under oath put their credibility at issue in a trial.[iii] All witnesses have their credibility evaluated by the jury.

In Florida, the jury is specifically instructed in a criminal case as follows, “It is up to you to decide what evidence is reliable. You should use your common sense in deciding which is the best evidence and which evidence should not be relied upon in considering your verdict. You may find some of the evidence not reliable, or less reliable than other evidence. … You should consider how the witnesses acted, as well as what they said. … You may rely upon your own conclusion about the credibility of any witness. A juror may believe or disbelieve all or any part of the evidence or the testimony of any witness.”[iv]

Impeachment by prior inconsistent statement can be a powerful way to discredit a witness’s testimony. For instance, a witness was interviewed at the crime scene by officers and states, “I saw the light and the light was green.” Now fast forward a several months and the witness is now on the stand, on direct examination, under oath, and testifies to the jury in response to the prosecutor’s questions, “I saw the light and the light was red.” The jury has heard that the “light was red” and has no idea that the witness has previous on the night in question said the “light was green.” On cross-examination, the defense attorney can offer the other statement to the witness to demonstrate that the witness made another statement at another time.

The theory is this: the purpose of allowing the use of a prior inconsistent statement is not to prove the truth of the prior statement, but to merely show that the witness may not be credible because the witness has made a different statement from the one that the witness has just testified to in court.[v] The prior statement could be evidence of fabrication or deceit, improper influence or motive, or simply faulty memory. In any event, the jurors need this information to accurately evaluate the testimony. A witness’s ability to recall the testimony and tell the truth are always questions for the jury to decide.

For instance, in the above example, the introduction of the “the light was green” is not offered to prove that the light was actually green on the night in question. It is offered to pose a credibility question to the jury that goes something like this: if the witness is now testifying that the light was red, but previously said that the light was green then when he was first interviewed, then which is it? Was the light red or was the light was green? And how do you decide which to believe? How do you know which is the truth?

At trial, if the witness is confronted with the prior inconsistent statement and admits to making it, then the impeachment is accomplished, and no further evidence is required. Use the above example, the questioning may go something like this in its basic form:

Q.  “Mr. Witness you testified on direct that the ‘light was red,’ is that correct?”

A.  “That’s correct.”

Q.  “You were questioned by law enforcement officers at the crime scene on the night in question, right?”

A.  “Yes.”

Q. “At that time, you said that the ‘light was green,’ did you not?”

A. “Yes, I did.”

No further questioning is required because the witness has admitted to the prior inconsistent statement. It would now be up to the attorney to argue to the jury during closing arguments that the jury should not believe so-and-so because he made two different statements about the incident and can’t be trusted.

There are some technical aspects of the impeachment.[vi] Any prior inconsistent statement may be offered to impeach a witness and demonstrate the inconsistency. The prior statements do not have to be under oath. There is a common misconception that the prior inconsistent statement must have been made in a deposition or under oath; this is simply not true.

The witness must “distinctly admit” to making the prior inconsistent statement to impeach. If the witness does not remember or recall making the prior statement, extrinsic evidence may be offered to prove the prior statement. Extrinsic evidence refers to another witness who heard the statement or a document like a letter, email, or a sworn statement like a deposition which contains the statement. If the witness denies making the statement, then to impeach the witness the opponent must introduce the prior inconsistent statement through the extrinsic evidence (otherwise the witness has not been impeached).

For instance, the witness on the stand absolutely denies making a statement. Another witness may be called for the sole purpose of demonstrating (a) that the statement was made and (b) the prior witness said it. The questioning may go like this if the witness has denied making the statement:

Q.  “Mr. Jones, were you present at the crime scene on the night in question?”

A.  “Yes, I was.”

Q.  “Were you in a position to hear Mr. Smith speaking with the officers?”

A.  “Yes.”

Q.  “Did Mr. Smith say the light was green?”

A.  “Yes.”

In the above scenario, the extrinsic evidence of what the other witness heard[vii] was offered to demonstrate that the witness has made a different statement about the incident at another time.

The ability to impeach a witness is a trial skill that is perfected over time. It should not be undertaken lightly because a butchered impeachment of a key witness at trial can spectacularly backfire and unintentionally bolster the credibility of the witness. Although the principles of impeachment can be easily learned through studying caselaw, impeachment is better understood in practice and requires years to master. Watching an attorney perform a skillful impeachment is like watching a master craftsman carve a magnificent statute out of a single block of granite. It is akin to an artform. As with many trial skills, the more trial experience an attorney has, the better the attorney usually is at impeaching a witness. In this regard, there are no substitutes for trial experience and trial preparation.  

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

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 (Attorney Candela) at his profile at avvo.com.

www.candelalawfirm.com

If you or a loved one has been arrested and/or charged in state or federal court, then please call the Candela Law Firm (813) 417-3645  24 hours a day/7 days a week/365 days a year for a short, free consultation about the case or visit on the web www.candelalawfirm.com for further information.

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.

Image source: pexels.com

No. 20-006


[i] In this sense, witness impeachment is very different from the process outlined in our constitution to remove an elected official from office.

[ii] On the other hand, it is faux pas for a juror to simply disbelieve a witness because of their nationality, religion, or gender. Reasons such as nationality or religion or gender not to be considered. Also, jurors are not supposed to give witnesses greater believability or credibility because of their given profession like law enforcement officers.

[iii] “At issue” in this sense means simply that the witness’s credibility is completely placed in front of the jury for the jury to make its determination. During deliberations, whether or not a juror believes or disbelieves a witness is entirely up the juror. Jurors are instructed that, “You may rely upon your own conclusion about the credibility of any witness. A juror may believe or disbelieve all or any part of the evidence or the testimony of any witness.” Instruction 3.9 – Florida Standard Jury Instruction in a Criminal Case.

[iv] Instruction 3.9 – Florida Standard Jury Instruction in a Criminal Case.

[v]  In some other jurisdictions (like the Commonwealth of Pennsylvania), if a witness provides an inconsistent statement and is impeached, a special jury instruction on crimen falsi (or providing false statements to the jury) can be requested.

[vi] See §90.614, Fla. Stat. Prior statements of witnesses.—

(1) When a witness is examined concerning the witness’s prior written statement or concerning an oral statement that has been reduced to writing, the court, on motion of the adverse party, shall order the statement to be shown to the witness or its contents disclosed to him or her.

(2) Extrinsic evidence of a prior inconsistent statement by a witness is inadmissible unless the witness is first afforded an opportunity to explain or deny the prior statement and the opposing party is afforded an opportunity to interrogate the witness on it, or the interests of justice otherwise require. If a witness denies making or does not distinctly admit making the prior inconsistent statement, extrinsic evidence of such statement is admissible. This subsection is not applicable to admissions of a party-opponent as defined in s. 90.803(18).

History.—s. 1, ch. 76-237; s. 1, ch. 77-77; ss. 17, 22, ch. 78-361; ss. 1, 2, ch. 78-379; s. 492, ch. 95-147.

[vii] The statement is not hearsay for two reasons. First, the “light was green” was not being offered to prove the truth of the matter asserted (or in other words, the statement is not being presented to demonstrate the light was in fact green). Lastly, §90.801(2)(a), Fla. Stat., states, “(2) A statement is not hearsay if the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement and the statement is: (a) Inconsistent with the declarant’s testimony and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding or in a deposition;” because it is being offered to impeach.

Fair Trials Require Fair Dealings: a Brief Primer on Brady v. Maryland and Exculpatory Evidence

In all criminal prosecutions, the government has a responsibility to turn over all favorable evidence to the defense. This is not a suggestion, aspiration, or negotiable but is an ironclad rule that is absolutely required under the United States and Florida constitutions, case law, and rules of procedure to ensure a fair trial and prosecution. As recently as 21 October 2020, the president signed the “Due Process Protections Act” which provides additional protections to criminal defendants regarding exculpatory evidence.

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.”[i]  If this the purpose, then the role of the prosecutor must be to seek truth and justice, and not simply attempt to get a conviction. With that being the constitutional goal, if the government is allowed to bury, hide, or otherwise restrict favorable evidence within its control, even the tiniest piece of a favorable evidence, then the quest for the truth becomes a farce, the trial unconstitutional, and the conviction bogus. When the government fails to disclose or provide that favorable piece of evidence to the defense, it unfairly precludes and restricts the jury as the trier of fact from gaining access to all the pertinent evidence to render its verdict. In this regard, the government’s nondisclosure “undermines the reliability of the verdict.”[ii]

In 1963, the Supreme Court in Brady v. Maryland grappled with the State of Maryland suppressing favorable evidence in a murder case. The Brady Court concluded in a 7-2 decision that the prosecution’s suppression of the favorable evidence violated the “due process clause” of the Fourteenth Amendment.[iii] Twenty or so years later, the Supreme Court revisiting the issue limited the disclosure of Brady material to evidence only evidence that was “exculpatory” (or tending to show that the accused did not commit the offense in some fashion) and “material.”[iv]

Brady violations are a big deal because the violation undermines any confidence in the conviction. To establish a Brady violation in court, the defendant[v] has the burden to show (1) that favorable evidence, either exculpatory or impeaching,[vi] (2) was willfully or inadvertently suppressed by the State, and (3) because the evidence was material, the defendant was prejudiced.[vii] Further, the prosecutor has a responsibility to learn about any favorable evidence and to disclose it to the defense.[viii]

In Wearry v. Cain, 577 US —, 136 S.Ct. 1002, 194 L.Ed.2d 78 (2012), the Supreme Court recapped the law regarding Brady claims and stated:

“[T]he suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Brady, supra, at 87, 83 S.Ct. 1194. See also Giglio v. United States, 405 U.S. 150, 153–154, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972) (clarifying that the rule stated in Brady applies to evidence undermining witness credibility). Evidence qualifies as material when there is “ ‘any reasonable likelihood’ ” it could have “ ‘affected the judgment of the jury.’ ” Giglio, supra, at 154, 92 S.Ct. 763 (quoting Napue v. Illinois, 360 U.S. 264, 271, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959)). To prevail on his Brady claim, [petitioner] need not show that he “more likely than not” would have been acquitted had the new evidence been admitted. Smith v. Cain, 565 U.S. 73, 132 S.Ct. 627, 629–631, 181 L.Ed.2d 571 (2012) (internal quotation marks and brackets omitted). He must show only that the new evidence is sufficient to “undermine confidence” in the verdict. Ibid. (footnote omitted).

Wearry, at 1006. (emphasis added)

In Florida, prosecutors are held to a higher ethical standard.[ix] It is not enough to simply prosecute defendants. “A prosecutor has the responsibility of a minister of justice and not simply that of an advocate.” Id. The state has an ethical obligation to turn over Brady evidence to the accused. Rule 4-3.8 (c) states:

(c) make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal.

Id. The Brady rule is also embodied in Florida Rule of Criminal Procedure Rule 3.220(b)(1)(A)(i)(5) which clearly states, “(5) witnesses known by the prosecutor to have any material information that tends to negate the guilt of the defendant as to any offense charged…” There is also a section in that rule that requires that the prosecutor turn over certain information concerning cooperating witnesses (i.e., snitches).

Although there are many different scenarios where Brady materials are suppressed. These scenarios range from the prosecutor innocently overlooking a document or item to the truly nefarious situation where either law enforcement, prosecutor, or both conspire to hide or fail to disclose the favorable evidence. For instance, during an investigation, the police learn that there were five eyewitnesses to the shooting. During questioning, two witnesses identify the defendant as the shooter, one is not sure, and two identify someone completely different as the shooter. For the purposes of this discussion, let us further say that the shooter is not arrested on the scene but rather arrested a few days later. Does the prosecution in its discovery disclosure have to provide the names of the two witnesses that identified another person other than the defendant as the shooter? Does the prosecution have to provide the name of the person who wasn’t sure and could not identify anyone? The answer to both questions is yes and if the government fails to provide the names of the three people who did not identify the defendant then that would constitute a Brady violation. It is just one example but fairly illustrates the point.

Brady violations are as serious as a heart attack. These types of constitutional errors rattle the foundation of any prosecution and/or conviction because the system cannot trust that the prosecution or conviction was constitutionally fair. And that is unacceptable.

Each potential Brady violation must be evaluated on a case-by-case basis to determine the extent of the violation and the potential remedy to rectify the violation. Depending on the severity of the Brady violation, the remedy could be dismissal of the case. If you think that the prosecution is hiding or suppressing favorable evidence in yours or a loved one’s case, please do not hesitate to contact the us at (813) 417-3645 to discuss the matter. The suppression of favorable evidence is a serious constitutional violation and must be handled appropriately.

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.

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

www.candelalawfirm.com

Image source: pexels.com

No. 20-005


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

[ii] Id., at 693.

[iii] Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

[iv] United States v. Bagley, supra.

[v]  Procedurally, it seems nonsensical that the defense needs to prove that the government covered up or hide favorable evidence. On the contrary, the burden should be on the prosecution to prove beyond a reasonable doubt that it did not hide evidence when the issue is properly raised and demonstrate beyond a reasonable doubt that the error did not contribute to the verdict.

[vi]  In this sense, impeaching means offering certain credibility evidence to demonstrate that the witness on the stand has a bias or is prejudice, has memory problems, is a felon, or has an inability to tell the truth.

[vii] See Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); Rivera v. State, 995 So.2d 191, 197 (Fla. 2008); Hurst v. State, 18 So.3d 975 (Fla. 2009).

[viii] Mordenti v. State, 894 So.2d 161, 170 (Fla. 2004), rehearing denied (2005). See Kyles v. Whitley, 514 U.S. 419, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995). In other words, the prosecution cannot bury its head in the sand and ignore favorable evidence merely because that evidence does not fit into its prosecution narrative. Many Brady violations are simply because the government ignores certain evidence because it does not neatly fit into its theory of prosecution. Often, the government offers further suppression as the one-size-fits-all remedy to correct the problem which is exactly the wrong remedy based upon a reading of Brady and its progeny.

[ix] “Special Responsibilities of a Prosecutor.” See Rules Reg. Fla. Bar. Rule 4-3.8 Special Responsibilities of a Prosecutor.

Five Simple Reasons You Need A Will

There are many people who operate under the misunderstanding that only the very wealthy or those with complicated assets and property need wills when they die. The truth is everyone needs one.

A will is a legal document that sets forth your wishes regarding the distribution of your assets and property, and outlines the care for any minor children (e.g., who will accept the children as guardian of person and property). If you die without a will, those wishes may not be carried out. Further, your heirs may be forced to spend additional time, money, and emotional energy to settle your affairs after you are gone.

Here are five super reasons why you should have a will.

  1. You get to be crystal clear about who gets your assets or property. You decide who gets what and how much. If you do not have a will, then the courts decide based on a fixed formula outlined in a statute. See Chapter 732, Fla. Stat.
  2. You also get to decide who should not get any of your assets or property.
  3. You get to identify who should care for your minor children. Without a will, the courts will decide. And during this time, your children might sit in some government agency foster care system until the probate court has resolved this issue. (Also, in Florida you cannot leave property or assets to minors without establishing a trust for their protection).
  4. Your heirs will be able to have a more efficient and faster access to your assets and property.
  5. You can plan to save your estate money on taxes, fees, and costs. You can also make gifts and charitable donations to offset the estate tax.

The legal term if you die without having made a valid will is called being “intestate.” If you die “intestate” (or without a will), 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. See Chapter 732, Fla. Stat. 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. For obvious reasons involving fraud, Florida does not recognize handwritten and unwitnessed wills.

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

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. It does not have to be this way.

Wills are a legal document filled with legal ease, specialized terminology, and technical jargon. While you might be able to muddle through the process on your own, it is a better idea that your will is drafted by a knowledgeable attorney. A good attorney will sit down with you and gather the requisite information to understand your assets, property, and wishes to properly draft your will to reflect your wishes after you have gone. If mistakes are made and not promptly assessed and corrected, these “mistakes” often cannot be corrected later when the testator (i.e., the will-maker) is deceased. Simple errors cannot be fixed by agreement of the beneficiaries. Once you are gone, you cannot correct these errors.

Often, the court becomes involved in these “will contests,” and the litigation can be ongoing, costly, and trying for the family. Further, simple mistakes can cost the estate thousands of dollars in taxes, fees, and costs.
Be very warry of the internet document production companies that claim that they can help you create an estate plan or a will on your own for some nominal amount of money. These companies usually do not offer advice or guidance, but rather claim that they provide “‘self-help’ at your direction” (whatever that tag line means). Think of it this way: if you are sitting where you are right now and your appendix burst, would you operate on yourself to conduct an emergency appendectomy? Or would you call for help? The question scarcely escapes its own statement. The creation of the will is one of those documents that requires a professional with the technical skills, drafting experience, and knowhow to create the correct document with the proper language for to accomplish the testator’s wishes. In this instance, you get what you pay for. The peace of mind that comes from a properly drafted will is priceless.

In Florida, a will has a few requirements. These requirements are:

• A person over 18.
• The testator (person making the will) must be of sound mind. If there are questions about this a medical professional can be consulted to sign off on competency issues, but this is not usually a concern. Florida assumes a person is of sound mind, unless it is shown otherwise by a high level of proof that testator is not competent.
• You must have two (2) witnesses sign your will at the same time you sign your will. The witnesses must be competent (18 years old and of sound mind). Disinterested persons are always a plus. In this context, disinterested meaning that the witnesses have no interest in the outcome of the will and are not named beneficiaries.
• The will must be dated as to when the will was created and signed.
• The name of a person to be the executor/executrix of your will. It is also a good idea to name any successor/backup executors/executrixes as contingencies if someone cannot serve as the executor/executrix for whatever reason.
• You must list at least one substantive provision in the will.

An estate plan is a living document that changes and grows as you do throughout your life. As your life moves forward, your plan can provide for various life changes. By getting your wishes down on paper now, you can take care of everyone who is important to you. No matter what happens to you, these people, or organizations (or even pets) can have the funds they need to live without you.

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

www.candelalawfirm.com

If you need assistance with your estate plan, including wills, trusts, living wills, health care surrogates, probate issues, power of attorneys …etc., please call the Candela Law Firm (813) 417-3645 24 hours a day/7 days a week/365 days a year for a short, free consultation or visit on the web www.candelalawfirm.com for further information.

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.

Image source: pexels.com

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.

No. 20-004

Appellate Bonds in Florida – You Have to Ask

The question comes up often enough, “do I have to go to prison while my direct criminal appeal is pending?” Shockingly, the answer is “not necessarily, it depends.” This type of release is often overlooked as many attorneys have no idea that their clients qualify for an “appellate bond” or how to ask for an “appellate bond” pending the appeal. Florida Rule of Criminal Rule 3.691 applies only to direct criminal appeals.

Pursuant to Fla. R. Crim. P. 3.691(a) and Younghans v. State, 90. So.2d 308 (Fla. 1956), the decision to release a person pending an appeal is entirely within the sound discretion of the court to set a supersedes bond (i.e., an appellate bond). There is no statutory calculus or formula for setting this specific bond and the court may, in its decision, look at several factors: (1) whether the defendant has ever been convicted of a previous felony; (2) the habits of the individual as to respect for the law; (3) his local attachments to the community, by way of family ties, businesses, or investments; (4) the severity of the punishment imposed for the offense; and (5) any other circumstances relevant to the question of whether the person would be tempted to remove himself from the jurisdiction of the court. If the defendant has a prior felony conviction, he or she is ineligible for an appellate bond.

To obtain an appellate bond, the attorney must file a motion with the court. In turn, the court must conduct an evidentiary hearing. At the hearing, the attorney must put evidence on to satisfy the above criteria in the form of testimony, affidavits, …etc. If the court grants the motion, then the defendant is released on bond like any person who is at liberty on pretrial release. If the court denies the motion, then the defendant can seek review with the appellate court to determine if the trial court abused its discretion.

The bond remains in effect throughout the pendency of the appeal subject to the terms and conditions of the bond. At the end of the appeal, the bond terminates. If the appeal was unsuccessful, then and only then (provided the person has not violated the terms and conditions of bond) the defendant must turn themselves to serve their sentence.

If you or a loved one has been convicted and is appealing or about to appeal a felony conviction, seek legal counsel to determine if you qualify for an appellate bond. Keep in mind – -“You miss 100 percent of the shots you never take.” Wayne Gretzky. In other words, if you otherwise qualify and you do not ask the trial court, then you cannot be released on an appellate bond. If you qualify, there is no harm in asking for an appellate bond if you otherwise qualify.

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

www.candelalawfirm.com

For this bond/bail issue or anything criminal, please call the Candela Law Firm (813) 417-3645 24 hours a day/7 days a week/365 days a year for a short, free consultation or visit on the web www.candelalawfirm.com for further information.

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.

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No. 20-003

the Strickland Standard: a Primer for Ineffective Assistance of Counsel Claims

Anyone charged with a crime in America is entitled “to have the Assistance of Counsel for his defence.”[i] Our brief American history is riddled with anecdotes of citizens being tried and convicted without an attorney; the right to an attorney in a criminal prosecution has not always been the case. Looking at our history, the American colonists were subjected to harsh and nasty summary justice by the agents of Crown. These British officers were swift in meeting out injustice. Without any counsel to defend the accused, the accused was universally convicted and punished.

After the new constitution was ratified by the several states, the new Americans, remembering their treatment in this regard by the British officers, wanted some guarantees that the newly formed government would not be able to mistreat its citizens in criminal prosecutions in the same fashion as the Crown did years before. Thus, the Sixth Amendment (as well as the rest of the Bill of Rights) came into being and was ratified by the several states. Ultimately, this constant government injustice sparked a legal revolution that culminated with this new protective framework- – individual rights retained by the citizens.

How does the right to counsel work in this regard? If an accused is guaranteed “to have the Assistance of Counsel for [their] defence,” what happens if the attorney representing the accused makes a mistake?[ii] Does the mistake have to be significant? Or can it be trival? Does the mistake have to affect the outcome of the trial? What if the mistake had no objective affect on the outcome of the trial, but was simply silly and embarassing?  

For over 40 years, the Supreme Court has wrestled with the question what mistakes by counsel might constitute “ineffective assistance” of counsel. Several different legal standards to evaluate an “ineffective assistance” of counsel claim developed around the country over the years as the various courts struggled to make sense of the right. In 1984, the Supreme Court, in a case titled Strickland v. Washington,[iii] provided the current legal standard to evaluate whether counsel’s mistake during the entire trial process constitutes “ineffective assistance” of counsel. And, if it does constitute “ineffective assistance,” then did counsel’s mistake vitiate, spoil, or so impair the accused’s right to a fair trial as to render the right null and void under the Sixth Amendment. Over time, the Sixth Amendment has come to stand, amongst other things, the right to a fair trial.[iv]

The Strickland Court established a two-part test for evaluating an ineffective assistance of counsel claim and a convicted, criminal defendant must show two things: (1) counsel’s performance fell below an objective standard of reasonableness (in that counsel’s performance was “deficient,” such that counsel’s error or errors were “so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment”); and (2) counsel’s “deficient” performance gives rise to a reasonable probability that if counsel had performed adequately, the result would have been different. In other words, counsel’s deficient performance must be so serious that it deprived this defendant of a fair trial.

The Strickland Court explained:

The benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction … has two components. First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense … [T]he proper standard for attorney performance is of reasonably effective assistance.[v]

The Court was attempting to synthesize the various standards adopted by the different circuit courts. In the end, the Court announced this as the standard for determining ineffective assistance of counsel after a defendant has been found guilty at trial.[vi]

The deficient performance prong of the test seems pretty straight forward. The case law prohibits Monday morning quarterbacking the case and second-guessing various decisions by counsel. The Florida Supreme Court takes the position that:

Counsel cannot be deemed ineffective merely because current counsel disagrees with trial counsel’s strategic decisions. See Strickland, 466 U.S. at 689, 104 S.Ct. 2052 (“A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight….”); Cherry v. State, 659 So.2d 1069, 1073 (Fla.1995) (“The standard is not how present counsel would have proceeded, in hindsight….”). Moreover, strategic decisions do not constitute ineffective assistance of counsel if alternative courses have been considered and rejected and counsel’s decision was reasonable under the norms of professional conduct. See Rutherford [v. State], 727 So.2d [216 (Fla. 1998)] at 223; State v. Bolender, 503 So.2d 1247, 1250 (Fla.1987).[vii] (Emphasis added).

Objectively, the review looks at the decision-making process to evaluate if the process was sound and does not simply review what the outcome might have been (i.e., what is referred to in other academic disciplines as resulting). If the process was sound, but the outcome poor, then it is highly unlikely that attorney’s performance would be deemed deficient; on the other hand, if the process was flawed because the attorney failed to recognize any alternatives and the decision was unreasonable, then the attorney’s performance might be considered “deficient.”

If the first prong is not established, the second prong regarding prejudice becomes irrelevant. Regarding “prejudice,” the Florida Supreme Court explained that when reviewing a claim of “ineffective assistance” of counsel, that the convicted defendant must prove prejudice affirmatively.[viii] When courts use the term “affirmatively,” the court means that the convicted, criminal defendant must conclusively demonstrate that he or she was prejudiced by counsel’s deficient performance. In other words, the convicted, criminal defendant must show something that did not happen (either an acquittal or conviction on a lessor charge) would have happened “but for” counsel’s deficient performance.[ix] This is next to impossible and is the reason that many reasonable and/or debatable “ineffective assistance” of counsel claims are denied.

Although the concept of “effective assistance of counsel” is easy enough to for anyone to grasp and understand, the actual application of the Strickland standard its evolving case law to any specific case can become both infuriating and mind numbing. The review process requires an attorney with expertise in the following areas: trial, appeals, and the post-conviction case law. The reviewer needs adequate time to comb through the record to carefully review the case to determine if there are any viable issues for review. Keep in mind, the reviewer must have sufficient trial and appellate experience to spot these types of issues. Inexperienced attorneys are what caused the problem in the first place. The mistake could be something as simple as not objecting properly at trial, or neglecting to interview and/or call a witness at trial, or failing to recognize an improper closing argument…etc.

This type of legal review is not an easy process and should not be undertaken lightly. As a cusory analysis has shown, there are many people in prison around this country that were denied “effective assistance” of counsel, but many of these defendants took it upon themselves to assess and diagnose their own cases for whatever reason. Self-representation is always a bad idea. A wise judge explained it this way in his court – – Mr. Accused, “If your appendix burst, would you operate on yourself?” The question scarcely escapes its own statement.

The point is obvious. Just like self-medical diagnosis is never a good idea, only a trained criminal defense attorney, a professional, with the proper background, experience, and skill in constitutional law, evidence, criminal law, and trial and appellate procedure should be reviewing and analyzing these types of ineffective assistance of counsel cases for the specific constitutional problems to best assist these defendants.

Over the coming months, the Trial Dog that will attempt to further explain what may or may not constitute “ineffective assistance” of counsel through different examples. If you believe that you or a loved one has been denied of “effective assistance” of counsel, please contact my firm at (813) 417-3645 for a review of your case or go to www.candelalawfirm.com for more information on how to contact us.

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

www.candelalawfirm.com

No. 20-002

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[i] The Sixth Amendment reads, “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.” (1789). The protections guaranteed by the Sixth Amendment deals exclusively with aspects of a criminal prosecution. Many of these rights that we take for granted today were not always afforded our ancestors at or before the ratification of the constitution. 

[ii]  Justice Antonin Scalia on what constitutes ‘ineffective assistance of counsel’ in an oral argument. Justice Scalia: “Well, now, wait a minute. I – – you know, I have – – we – – don’t evaluate whether you had a good counsel or bad counsel. You may have Clarence Darrow and still be denied effective assistance of counsel if Clarence Darrow makes one mistake. I mean, when – – when we find that there has been ineffective assistance of counsel, I think that means counsel failed to do one thing that he should have done. But there’s – – there’s no such general finding that counsel was – – was, in gross, ineffective. You’re – – you’re – – you’re describing it as though – – as though that’s what the finding is. That – – that’s not what we hold when we find this particular counsel made this mistake. That’s it.” Jennings v. Stephens, 13-7211, transcript of oral argument, 15 October 2014,   (Pg. 4, L. 20-25, Pg. 5, L. 1-9) and “No, no, no, no. The – – the right to a trial that did not have this – – this failure of counsel, this particular failure. You’re not entitled to – – to competent counsel. You’re – you’re entitled to counsel who doesn’t make a mistake. He could be the dumbest counsel around so long as he doesn’t make a mistake. And he could be the smartest around, and if he does make a mistake, that’s ineffective assistance of counsel,” Jennings v. Stephens, 13-7211, transcript of oral argument, 15 October 2014, (Pg. 11, L. 24-25, Pg. 12, L.1-7).

[iii] Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The case comes out of Florida. Justice O’Conner delivered the majority opinion; Justice Thurgood Marshall dissented. In his dissent, he foresaw that this standard would end up being useless to evaluate whether or not a defense attorney’s performance was reasonable (and he was not wrong in this author’s humble opinion).

[iv] Interestingly enough, the Supreme Court settled on a judge supervised, non-jury system to determine if the criminal defense attorney has provided “ineffective assistance of counsel.” This is remarkably different from the jury system typically employed for all other types of professional malpractice which includes legal malpractice.

[v] Strickland, 466 U.S. 668, 686-687 (1984).

[vi] Again, it seems strange that a simple negligence standard was not settled on with a jury deciding if the attorney fell below the acceptable standard and that the mistake effected the outcome of the case.

[vii] Occhicone v. State, 768 So. 2d 1037, 1048-9  (Fla. 2000),

[viii] Downs v. State, 453 So. 2d 1102 (Fla. 1984)

[ix] See also Harrington v. Richter, 561 U.S. 86, 112-3, 131 S.Ct 770, 178 L.Ed.2d 624 (2011) (“In assessing prejudice under Strickland, the question is not whether a court can be certain counsel’s performance had no effect on the outcome or whether it is possible a reasonable doubt might have been established if counsel acted differently. (citation omitted) Instead, Strickland asks whether it is ‘reasonably likely’ the result would have been different. (citation omitted) This does not require a showing that counsel’s actions ‘more likely than not altered the outcome,’ but the difference between Strickland’s prejudice standard and a more-probable-than-not standard is slight and matters ‘only in the rarest case.’ (citation omitted) The likelihood of a different result must be substantial, not just conceivable.”)

Huh? There’s No “Form” Objection???

“For the record, Your Honor.” As an appellate attorney, I read plenty of appellate records. In this context, the record refers to all the court documents which includes the trial and hearing transcripts transmitted to the appellate court for review. The appellate attorney’s usual job is to read and review the entire record to see if there are any legal errors. Sometimes the court errors are actionable; sometimes they are not.

There is one that comes up often and is a common misconception. The misconception is that an “objection to the form of the question” is the catch-all objection that will preserve a potential error for later judicial review. Many seasoned Florida practitioners are surprised to learn that the often standard, non-specific, “objection to the form of the question” or simply, “objection, form,” is legally insufficient to preserve an evidentiary objection for trial or review, and, therefore, useless.

Although there is no way to pinpoint the beginning of this now-accepted-practice, it appears that the “objection to the form of the question” grew up over time as a way to avoid from making the taboo, faux pas, and frowned upon “speaking objection.” Basically, a speaking objection sounds exactly like what it is, and it is an objection where the objector offers a factual or legal explanation far beyond the necessary grounds to establish the objection. For example, “Objection, hearsay,” is sufficient to alert the trial court that the question and/or witness’s answer will call for a hearsay answer. On the other hand, “Objection, hearsay, this witness is testifying to what the other unnamed witness told them and this witness could not possibly know that answer” may draw the ire of the trial court as a “speaking objection.” Speaking objections are strictly verboten because the attorney is improperly introducing evidence into the trial that is not coming from the witness off the witness stand. Speaking objections may also taint a witness’s answers or impermissibly alert the jury to inadmissible evidence. In most cases, if the trial court needs further explanation, the trial court will invite the attorneys to the bench for an in camera (out of the earshot of the jury) conference to hear the objector out and make a ruling.

The same holds true for a deposition where the point of the inquiry is usually to find out what the witness may or may not know about the case. Improper, speaking objections, can improperly suggest answers to witnesses and taint the deposition. For instance, “Objection, hearsay,” sufficiently places the objection on the record, preserves the complaint, and ordinarily does not influence the witness’s testimony; however, “Objection, the witness cannot possibly know that answer” or “Objection, he does not know that” is usually followed by the witness who has picked up on the attorney’s objection now stating, “I don’t know” instead of answering the question. It is improper.

There are a few problems with the “form” objection. First, the “form” objection is trite, overused, misunderstood, and accomplishes nothing legally. From an error preservation point of view, the problem with the “form” objection is obvious: the speaking objection goes too far; the “bare-bones” objection to “the form of the question” does not go far enough. To preserve an objection during a deposition, the objection must be specific in its nature, and clearly and concisely state the grounds. Otherwise, the objecting party runs the risk of waiving the objection for further review (whether at the trial or appellate level).

At trial, 90.104, Fla. Stat., controls the introduction of evidence. It reads:

90.104 Rulings on evidence.
(1) A court may predicate error, set aside or reverse a judgment, or grant a new trial on the basis of admitted or excluded evidence when a substantial right of the party is adversely affected and:
(a) When the ruling is one admitting evidence, a timely objection or motion to strike appears on the record, stating the specific ground of objection if the specific ground was not apparent from the context; or
(b) When the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer of proof or was apparent from the context within which the questions were asked.
If the court has made a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal.
(2) In cases tried by a jury, a court shall conduct proceedings, to the maximum extent practicable, in such a manner as to prevent inadmissible evidence from being suggested to the jury by any means.
(3) Nothing in this section shall preclude a court from taking notice of fundamental errors affecting substantial rights, even though such errors were not brought to the attention of the trial judge.

Id. (Emphasis added). In general, Fla. R. Civil P. 1.310 plainly establishes the protocols and procedures for taking depositions. Subsection (c) clearly outlines the objection procedure. It reads:

(c) Examination and Cross-Examination; Record of Examination; Oath; Objections.

Examination and cross-examination of witnesses may proceed as permitted at the trial. The officer before whom the deposition is to be taken shall put the witness on oath and shall personally, or by someone acting under the officer’s direction and in the officer’s presence, record the testimony of the witness, except that when a deposition is being taken by telephone, the witness shall be sworn by a person present with the witness who is qualified to administer an oath in that location. The testimony shall be taken stenographically or recorded by any other means ordered in accordance with subdivision (b)(4) of this rule. If requested by one of the parties, the testimony shall be transcribed at the initial cost of the requesting party and prompt notice of the request shall be given to all other parties. All objections made at time of the examination to the qualifications of the officer taking the deposition, the manner of taking it, the evidence presented, or the conduct of any party, and any other objection to the proceedings shall be noted by the officer upon the deposition. Any objection during a deposition shall be stated concisely and in a nonargumentative and nonsuggestive manner. A party may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation on evidence directed by the court, or to present a motion under subdivision (d). Otherwise, evidence objected to shall be taken subject to the objections. Instead of participating in the oral examination, parties may serve written questions in a sealed envelope on the party taking the deposition and that party shall transmit them to the officer, who shall propound them to the witness and record the answers verbatim.

Id. (Emphasis added). This rule also applies to criminal depositions taken under Fla. R. Crim. P. 3.220. By way of further example, the Fifth District explained in Moyer v. Reynolds, 780 So.2d 205, 207-8 (Fla. 5th DCA 2001), that:

Just as Moyer contends, the record reveals that the trial court and counsel for both parties knew that the videotaped testimony of Dr. Slysh was trial testimony. Therefore, any objections should have been made at the time the question was asked and the grounds therefor should have been specifically stated. See § 90.104(1), Fla. Stat. (1999); Hoffman v. Jackson’s Minit Mkts., Inc., 327 So.2d 48 (Fla. 4th DCA 1976); Nat Harrison Assocs., Inc. v. Byrd, 256 So.2d 50 (Fla. 4th DCA 1971). Moyer further argues that Dr. Reynolds waived any objection not specifically made at the time the testimony was elicited. Although we agree with Moyer’s argument, we conclude that even if proper objections had been made, the trial court erred in not allowing the testimony regarding breach of the hospital’s policy and procedures.

Id., at 208. The above holding dealt with a sub-issue different from the general rule. Further, Rule 1.310 (d) explains:

(d) Motion to Terminate or Limit Examination. At any time during the taking of the deposition, on motion of a party or of the deponent and upon a showing that the examination is being conducted in bad faith or in such manner as unreasonably to annoy, embarrass, or oppress the deponent or party, or that objection and instruction to a deponent not to answer are being made in violation of rule 1.310(c), the court in which the action is pending or the circuit court where the deposition is being taken may order the officer conducting the examination to cease forthwith from taking the deposition or may limit the scope and manner of the taking of the deposition under rule 1.280(c). If the order terminates the examination, it shall be resumed thereafter only upon the order of the court in which the action is pending. Upon demand of any party or the deponent, the taking of the deposition shall be suspended for the time necessary to make a motion for an order. The provisions of rule 1.380(a) apply to the award of expenses incurred in relation to the motion.

Id. Logically, there would be no need for the trial court to oversee the deposition process, unless the process was subject to the trial court’s jurisdiction. Rule 1.310 deals with depositions in general. Similarly, Rule 1.330 deals with using depositions at trial. There are several other discovery rules that contribute in various ways to the administration and/or use of depositions.

Rule 1.330 (a) reads:

(a) Use of Depositions. At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition may be used against any party who was present or represented at the taking of the deposition or who had reasonable notice of it so far as admissible under the rules of evidence applied as though the witness were then present and testifying in accordance with any of the following provisions:
(b) Objections to Admissibility. Subject to the provisions of rule 1.300(b) and subdivision (d)(3) of this rule, objection may be made at the trial or hearing to receiving in evidence any deposition or part of it for any reason that would require the exclusion of the evidence if the witness were then present and testifying.
(c) Effect of Taking or Using Depositions. A party does not make a person the party’s own witness for any purpose by taking the person’s deposition. The introduction in evidence of the deposition or any part of it for any purpose other than that of contradicting or impeaching the deponent makes the deponent the witness of the party introducing the deposition, but this shall not apply to the use by an adverse party of a deposition under subdivision (a)(2) of this rule. At the trial or hearing any party may rebut any relevant evidence contained in a deposition whether introduced by that party or by any other party.

Id. (Emphasis added)

Although there are not a lot of cases the objection procedure at deposition, the case law interpreting and policing depositions continually focuses itself on the specific language “as permitted at trial.” The phrase strongly suggests that the deposition, whether noticed or not for use at trial, proceeds as if the witness were actually on the witness stand in open court. Based on the rules and case law, the testimony and/or evidence is subject to the rules of evidence. As with all trial testimony, a general objection, without stated grounds and/or specificity, almost universally fails to preserve an error for appellate review (unless the error is fundamental). See generally Jones v. Seaboard Coast Line R. Co., 297 So.2d 861 (Fla. App. 1974); Smith v. Gardy, 569 So.2d 504 (Fla. 4th DCA 1990), review denied, 581 So.2d 1310 (improper examination must be ruled on by the court “as permitted at trial.”); and Moyer, supra; But see David v. City of Jacksonville, 534 So.2d 784, 785-6 (Fla. 1st DCA 1988).

The conclusion is simple: to preserve an objection for the appellate court to review, the objection must be specific, concise, and timely (i.e., contemporaneously) to the trial court (or at deposition). Objections that do not state that actual grounds for the objection fail to meet the criteria for error preservation and are useless to preserve the perceived error for judicial or appellate review.

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

www.candelalawfirm.com

No. 20-001

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