Criminal Procedure

Witnesses Get Immunity In Criminal Cases When Forced to Testify in Florida

Published on: October 21, 2009 | by Lasnetski Gihon Law

What happens in a criminal case in Florida when a witness, who may have information that incriminates him/herself, is called to testify at a deposition? Most people are familiar with the Fifth Amendment of the U.S. Constitution which says that a person has a right not to incriminate him/herself. This means that a person can not be forced to make statements to the police or prosecutors that could be used against him/her in a criminal case. But there are times in Florida where the state will subpoena a person for a sworn statement or deposition and ask that person for information that could implicate the person in a crime. Does that person have to answer those questions?

The person may have to answer questions and provide information that would be incriminating, but the information cannot be used against the person in a criminal case. A person who is subpoenaed to testify will be given what is called use and derivative use immunity. This means that the state cannot use the statements provided by the witness or any information derived by those statements against the witness in a criminal case. For instance, suppose the witness said that he drove the defendant to a particular hotel after the robbery and hid the gun in room 100. The state could not use that statement against the witness in a prosecution against the witness as an accessory to the robbery crime. Additionally, the state could not go to the hotel and get the registration form signed by the witness for room 100 and use that against the witness if the only way they learned of this information was through the witness’s statement. However, if the state was aware of the information about the hotel from another independent source, they could still use that information against the witness based on that other source.

Corporate Executive’s Statements to His/Her Attorney May Not Remain Confidential

Published on: October 19, 2009 | by Lasnetski Gihon Law

Most people understand that when they have a private conversations with their lawyers about an existing or potential case, whether criminal or civil, those conversations are supposed to remain confidential. This is referred to as the attorney-client privilege, and it means that no one can compel the attorney or the client to disclose what was discussed between them.

However, in the context of a pending case or investigation involving a corporation and its executives or employees, it may not be clear who exactly the attorney represents. For instance, in a recent federal criminal case, the government was investigating a company and its chief financial officer for conspiracy and securities fraud. The company hired a lawyer to assist with an internal investigation and an audit. That lawyer interviewed the CFO who gave that lawyer important information critical to his own case. The CFO believed that the lawyer was his lawyer and all communication between the two was confidential and private. This particular attorney had even represented the CFO in the past in civil cases, which further led the CFO to believe that he was having confidential discussions with his personal lawyer.

Subsequent to those conversations with the CFO, the lawyer disclosed information from those conversations to other lawyers and accountants assisting in the internal investigation of the company and ultimately to the government. The government then intended to use that information against the CFO.

When Police Ask Questions, You Do Not Always Have To Answer

Published on: August 27, 2009 | by Lasnetski Gihon Law

We see countless criminal cases in the Jacksonville, Florida area where regular people or suspects talk and answer questions when police come to investigate a crime, and the result is the person talks him/herself into getting arrested and/or gives the police officer the evidence he/she needs (and did not have) to make a strong criminal case against the person.

The Fifth Amendment to the U.S. Constitution guarantees you the right to remain silent and not answer a question from a police officer when that answer may incriminate you. For example, consider a situation where a vehicle with four occupants gets pulled over, and the officer finds a bag of marijuana or cocaine in the center console area. The bag of illegal drugs is within arm’s reach of each of the four occupants. The police officer takes all four people out of the car and asks questions to find to whom the drugs belong. What should the four occupants do?

The police officer wants at least one person to take ownership of the drugs so a valid arrest can be made. Keep in mind that the police officer is going to say various things, from promises to threats, to make the people think they should, or have to, answer his/her questions. The police officer may say that he’ll arrest everyone and take them all to jail unless someone claims the drugs. The police officer may promise that the person who claims responsibility will get a better deal or a slap on the wrist if he/she claims the drugs. The police officer may say anything, but his/her purpose is clearly to get a statement from someone so he/she can make an arrest and make it stick.

What is the Entrapment Defense to a Drug Charge in Florida?

Published on: August 13, 2009 | by Lasnetski Gihon Law

Criminal defense lawyers do not often assert the entrapment defense in criminal cases, particularly drug cases, because it does not apply in most cases. However, there are cases where the entrapment defense is a valid defense when a person is charged with a drug crime in Florida.

For instance, in a recent case, a defendant was charged with trafficking in cocaine after he set up a drug deal between a cocaine supplier and a buyer who turned out to be a confidential informant (CI) for the police. His criminal defense lawyer argued that the defendant was entrapped into committing the trafficking crime. The defendant testified that he was addicted to cocaine and also used other illegal drugs, such as marijuana and heroin. He could not afford his drug habit and needed a way to make some money. The CI approached him and asked him if he could arrange a deal for a large amount of cocaine. Several times, the defendant told the CI that he was not interested. However, the CI persisted and finally offered the defendant some of the cocaine if he would arrange the drug deal. The defendant agreed and was arrested by police for trafficking in cocaine right before the deal was done.

The standard for entrapment in Florida is as follows: it is not entrapment when the police intend to disrupt ongoing criminal activity and use reasonable means to do so. Alternatively, if the police are going out of their way to take advantage of someone who is not otherwise involved in drug trafficking or a related drug crime, and they use unreasonable methods to do it, the defense of entrapment can work. However, if the state can show that the defendant is predisposed to commit the drug crime, i.e. he/she has sold or been involved with illegal drugs before or was familiar with how drug deals work and the terminology, the entrapment defense is problematic, unless the defendant can show that the police’s conduct was particularly outrageous.

Driving With a Suspended License and DUI Charges Should Not Be Tried Together.

Published on: August 2, 2009 | by Lasnetski Gihon Law

It is not uncommon for a person to be arrested for driving under the influence of alcohol or drugs (also commonly referred to as DUI, DWI or drunk driving) and driving with a suspended or revoked license, or DWLS, in Florida. Under those circumstances the prosecutor will file at least two charges in the information, one for DUI and the other for DWLS. If the defendant decides to take the case to trial, those two charges should be separated, or severed. In other words, the jury that hears the evidence related to the DUI charge should not hear the evidence and decide the case related to the driving with a suspended license charge. A different jury at a new trial should decide the second charge.

The reason these charges should be severed is because the evidence pertaining the driver’s alleged suspended license, such as his driving history, is unrelated to the evidence related to the DUI, and vice versa. This relates to the idea that unduly prejudicial evidence should not be admissible in court. It is prejudicial for the state to present evidence of the defendant’s driving history and suspended license in his/her DUI trial because that evidence has nothing to do with the DUI and only paints the defendant in a bad light with irrelevant evidence. Likewise, when a jury is deciding whether the defendant was driving with a suspended license, it is prejudicial for the state to present evidence of the defendant’s intoxication because that is irrelevant to the DWLS charge.

Where a defendant has been charged with driving under the influence of alcohol or drugs and driving with a suspended or revoked license in the same case, it is important for the criminal defense lawyer to file a motion to sever those charges so the state is not permitted to admit unnecessary and prejudicial evidence against the defendant at the trial. The jury should only hear the specific evidence relevant to the particular charge.

I Entered a Plea of Guilty or No Contest in Criminal Court in Jacksonville, Florida, Can I Now Withdraw or Reverse That Plea and Fight My Charges?

Published on: July 18, 2009 | by Lasnetski Gihon Law

As a criminal defense law firm practicing in the Jacksonville, Florida area, we get this question quite often. Sometimes, a person pleads guilty or no contest to a crime in Jacksonville the morning after the arrest without really knowing the consequences of the guilty or no contest plea, without really understanding the nature of the charges and evidence against him/her and without any meaningful discussion with a criminal defense attorney. Later, they may contact us and ask if there is a way to withdraw or reverse the guilty or no contest plea to the criminal charge.

There often is a way for a person who plead guilty or no contest to reverse or withdraw the plea. This is especially true for those people who plead guilty or no contest at their first appearance hearing the next day. In Jacksonville, Florida, the first appearance hearing takes place at J1, which is a courtroom attached to the jail. When a person gets arrested in Jacksonville, Florida, he/she will go in front of the judge the next morning or afternoon in J1. Many people plead guilty or no contest to their criminal charges in J1 on their own and later want to reconsider that decision or at least confer with a criminal defense attorney to find out if the guilty or no contest plea was the right thing to do.

In order for a plea of guilty or no contest to a charge to be legal and valid, the defendant must enter the plea voluntarily, knowingly and intelligently. At the first appearance hearing the next day, the defendant does not really have an opportunity to thoroughly go over the case, the charges, the evidence and the ramifications of the sentence with a criminal defense lawyer. The judge is supposed to ask each defendant who is pleading guilty about his/her age, education, mental and physical conditions and prior experience with the criminal justice systems. The purpose of these questions is to get some assurance that the defendant who is pleading guilty without having spoken to a criminal defense lawyer knows what he/she is doing and what effects that decision may have. If those questions are not asked of the defendant when he/she pleads guilty or no contest to a criminal charge, the plea may not be valid. In that case, the defendant may be able to file a motion to withdraw the plea and have a chance to fight the charges.

Senator Jim Webb Discusses Needed Changes to Our Criminal Justice System

Published on: July 4, 2009 | by Lasnetski Gihon Law

Senator Jim Webb of Virginia published a short article on The Charlottesville Center for peace and Justice website about problems with the criminal justice system and some suggested reforms. He highlights some pretty disturbing figures which make it difficult to argue that the criminal justice system is functioning fairly and smoothly. In his article, he cites the following: 1 out of every 31 adults in the United States is either incarcerated or on parole or probation and the number of incarcerated drug offenders has increased by 1200% since 1980. Most of the people in the U.S. are incarcerated for non-violent offenses.

When we consider the level of violence that pervades cities in the United States, including Jacksonville, Florida, one obvious implication is that criminal justice resources are not being allocated towards violent offenders to the extent they should be. Something is clearly wrong when the jails and prisons are full on drug and other nonviolent offenders at an increasing rate, yet violent crimes are more and more prevalent. Senator Webb points to reforms which would direct law enforcement attention more towards violent offenders while also developing rehabilitory strategies for drug and other nonvioolent offenders who can use the help to get back on their feet once through the criminal justice system.

Children in Court

Published on: June 18, 2009 | by Lasnetski Gihon Law

A times, people contact Lasnetski Gihon Law to offer to submit a post or article for our Jacksonville Criminal Lawyer Blog. The following article was submitted by Kimberly Peterson who writes about online criminal justice degrees. She invites you to send your feedback to her at KimPeterson2006@gmail.com.

The establishment of juvenile courts was founded upon the belief that minors are unaware of their original intent in committing a crime. A five-year old who has committed a robbery or has stabbed someone does not yet have the moral capacity to understand that what he/she has done is not only ethically wrong, but also against the law. The ethics of children hardens by the time they are 18, although many states have deemed it necessary to try juveniles convicted of capital murder in adult courts, thereby exposing them to sentences in adult prisons. With the prison system the way it is, we are simply sending these children to a breeding ground of crime where they will be exposed to atrocities which they would otherwise have avoided in a juvenile detention center.

Juvenile centers were put into place in order to dissuade courts from sending minors to prison facilities, but also to keep an eye on offenders in an attempt to rehabilitate them before they reach the age of 18. The use of these centers is essential to swaying many teens from a life of crime, with over half of the teens admitted never returning to court. The goal is to get this number up closer to 100 percent. Many states have concluded that trying children in adult courts is more effective to deter them from returning to these courtrooms later in life; however, it has also been proven that by sending them to adult detention centers, this may only increase their odds of becoming a repeat criminal offender. The political decision in the mid-1990’s to combat what many thought was a rise in juvenile crime has turned out to be counter-productive and has instead led to an influx of adult prisoners who were sent to adult centers as minors.

How is a Self Defense Argument Presented in a Criminal Case in Florida?

Published on: June 11, 2009 | by Lasnetski Gihon Law

In Florida, a person who has been arrested for a crime of violence, such as aggravated assault, cannot be prosecuted for that crime if he/she was justified in using force, i.e. committed the act in self-defense. In other words, Florida law provides that a person can use force against another person if he/she reasonably believes such force is necessary to defend him/herself against another’s imminent use of force. A person can use deadly force if he/she reasonably believes that deadly force is necessary to prevent imminent death or great bodily harm to him/herself or another or to prevent the imminent commission of a forcible felony. (There are additional laws regarding use of deadly force in one’s home which can be found here.) A person does not have to wait for the other person to use force or commit the forcible felony. If it reasonably appears that the other person is about to use force or commit a forcible felony, a person can preemptively use force to prevent the attack or forcible felony.

How exactly does this defense play out when a person is charged with a violent crime when that person believes he/she had a right to use the force that he/she used? In Jacksonville, Florida and other locations in the First District, the criminal procedure allows a defendant to file a motion to have the judge dismiss the charges against him/her. That motion, which is filed by the criminal defense attorney, does not technically characterize the defendant’s justifiable use of force as a defense to the charges. The criminal defense lawyer’s motion will properly indicate that his/her client’s use of force renders the defendant immune from prosecution on the charges. Because the justifiable use of force defense is an assertion of immunity rather than what is referred to as an affirmative defense, the motion is made prior to the trial, and the judge will weigh the relevant evidence to determine if the defendant was justified in using such force. The defendant has the burden of proof, but the standard is by a preponderance of the evidence (i.e. greater than 50%) rather than the typical beyond a reasonable doubt standard the State has in a criminal case.

The judge cannot refuse to grant the defendant’s motion to dismiss the charge(s) based on justifiable use of force on the basis that the evidence on each side conflicts. The judge is supposed to weigh the evidence and grant the defense motion to dismiss if the defense establishes the force used by the defendant was justified by a preponderance of the evidence. If the judge makes such a determination, the judge must then dismiss the charge(s) against the defendant without the case ever going to a trial before a jury.

GBI Firearms Expert Resigns After Testifying Falsely in Gun Cases

Published on: May 26, 2009 | by Lasnetski Gihon Law

A Georgia Bureau of Investigation (GBI) firearms examiner who routinely testified for the State in gun cases resigned from the GBI after it was learned that she gave false testimony in numerous cases, according to an article on AJC.com. The article indicates that the GBI firearms examiner mischaracterized in her sworn testimony the number of times she tested the guns about which she testified. This, of course, calls into question the reliability of her testimony in trials and her integrity as a firearms expert.

In a variety of criminal cases involving firearms, the State may elect to have an expert testify about the gun that was allegedly used by the defendant. In Florida, this person may be a firearms examiner from the Florida Department of Law Enforcement. In Georgia, it is often a firearms examiner from the GBI. The State will put on the examiner and ask questions about his/her education, training and experience with firearms generally, and the specific firearm(s) in question, as well as the number of times that person has testified as an expert in similar trials. All of this questioning is done to show the judge and the jury that the witness is an expert in firearms or the particular area about which he/she will be testifying. If the judge is satisfied that the witness has sufficient expertise in that area, the judge will officially qualify the witness as an expert and instruct the jury accordingly.

Juries in criminal (and other) cases often put extra emphasis on a witness’s testimony after the judge has proclaimed that he/she is qualified to testify as an expert. If that “expert” witness’s testimony later turns out to be flawed, it calls into question the legitimacy of any conviction in any trial in which that witness testified. Even if the problem with the testimony did not necessarily relate to material evidence affecting the defendant’s guilt, when a witness the State and the judge indicate to a jury is an expert witness is found to have lied about his/her expertise or testing methods, it raises serious doubts about the integrity of the criminal justice system that needs to be closely examined. Convictions in trials where this witness testified may need to be challenged.