Articles Posted in Criminal Procedure

As technology advances with computers and cell phones and newer forms of communication, old laws and cases do not always properly address how our privacy rights might be affected, and how the government can look at or seize our data in criminal cases. We have written previous articles about when and how the police can obtain data on cell phones before and after an arrest. In many cases, the state has broad authority to access this information because search and seizure case law does not properly characterize the data and the methods used to acquire the data.

Emails are another form of data that are often the coveted by police officers looking to investigate criminal activity quickly and without the checks and balances found in search and seizure law. However, the House of Representatives recently took steps to pass a law that would protect old emails. An old law that people probably are not aware of allowed the government to look at old, private emails if they are more than six months old with only a subpoena, which does not involve much, if any, judicial oversight. It’s hard to believe that the government practically had free reign to look at any of your old emails as long as a relatively short period of time has passed. This was an obsolete law that was written before emailing and texting became common forms of communication. However, this new law would require the government to get a warrant signed by a judge to see any emails, text messages, electronic photographs and instant messages no matter how old they are. The arbitrary six month waiting period to avoid the warrant requirement would be eliminated.

As much of a no brainer as this new law seems to be, keep in mind that this proposed law still needs to be voted on by the full House of Representatives and then move through the normal channels from there. So, while it seems like an obvious law to fix a blatant violation of the constitutional right to privacy, depending on this House of Representatives to do anything helpful is a shaky proposition. Hopefully, this will be an exception, and it will become the law quickly. In the meantime, the government can still read any of your emails and text messages whenever they want and without a warrant as long as they are more than six months old.

People in Florida may have seen news stories recently regarding Florida’s death penalty and a decision by the United States Supreme Court calling it into question. As an initial matter, Florida has the death penalty as an option for certain crimes. The recent United States Supreme Court case (Hurst v. Florida, 136 S. Ct. 616 (2016)) did not find the Florida death penalty unconstitutional, but it did find the death penalty “scheme” unconstitutional.

The Sixth Amendment to the Constitution guarantees, among other things, a criminal defendant the right to have a trial by jury. The problem with the Florida death penalty procedure is that the Florida statute allows a judge to make certain findings that a defendant is eligible for the death penalty. The Supreme Court held that the Sixth Amendment requires a jury to make those findings rather than a judge. A recommendation by the jury to the judge who ultimately makes the death penalty findings is not sufficient to satisfy the Sixth Amendment right to a trial by jury. The Court ruled that a jury, not a judge, must make each finding that is necessary to impose the death penalty in a Florida criminal case.

So, what that decision does is invalidate the process by which Florida imposes the death penalty. As stated, it does not mean Florida cannot impose the death penalty; it just means that Florida needs to get its death penalty procedure in line with the Constitution by relying on the jury rather than the judge. In the meantime, the Florida legislature has passed new laws that presumably bring the Florida death penalty procedure in conformity with the Constitution.

When both sides to a criminal case finish presenting evidence, questioning the other side’s witnesses and making their arguments, the jury goes into the jury room to deliberate and try to reach a verdict. They use their memories of and notes from the testimony, the law that is read to them by the judge and any exhibits that were entered during the criminal trial. Sometimes, a jury wants to re-hear specific testimony that was elicited during the trial. Is the judge allowed to get a transcript of the witness’ testimony and read it back to the jury or let the jury take the transcript with them into the jury room in a criminal case?

In a recent gun and drug case near Jacksonville, Florida, the jury asked the judge if he could read a transcript of a police witness’ testimony back to them. The criminal defense lawyer agreed as long as the judge read back all of the detective’s testimony including the parts where the criminal defense attorney was cross-examining the detective. The judge did it a different way. The judge allowed the jury to decide what parts of the detective’s testimony they wanted to hear. The jury was only interested in hearing the testimony elicited by the state without hearing some of the testimony that would likely be beneficial to the defendant. The criminal defense lawyer objected to reading just a part of the detective’s testimony, but he was overruled.

In Florida criminal cases, the judge is allowed to read back certain testimony of witnesses when the jury makes the request. The judge has discretion to make this determination. The judge is also allowed to read back just a part of the witness’ testimony if that is what the jury is requesting. However, the judge may not read back a part of a witness’ testimony if it would be misleading and the criminal defense lawyer’s cross-examination of the witness is within the scope of the jury’s request. The judge may not read back partial testimony to a jury that would bolster one side’s version of the case if there is relevant cross- examination on the matter.

It does not happen often, and I have only seen one case of a Jacksonville criminal defense lawyer being held in contempt, but a judge does have a right to hold a lawyer in contempt and send him/her to jail for a period of time for certain conduct in Florida. Of course, this does not just apply to criminal defense attorneys; it can apply to any lawyer that has to appear before a judge in any case.

There are two types of contempt proceedings: direct contempt and indirect contempt. Direct contempt involves improper conduct by a lawyer that is done in the presence of the judge so that the judge sees or hears it. An obvious example would be if the judge orders the lawyer to do something in court and the lawyer refuses to do it in court. Disruptive behavior in court can also be the basis for direct contempt. The other kind of contempt is indirect contempt. That involves the violation of a court order outside of the presence of the judge. For instance, if the judge orders the attorney to file a pleading and the lawyer intentionally fails to do so, that could be indirect contempt. A lawyer can go to jail for a contempt violation.

In a recent case near Jacksonville, Florida, a criminal defense lawyer was found in direct contempt and ordered to go to jail for a period of time. However, the judge abused his power over the criminal defense attorney. Apparently, the criminal defense lawyer thought she was finished for the day and had a couple of drinks at lunch. As it turned out, she had a plea hearing later that day. She went to the plea hearing, and someone told the judge that the criminal defense attorney smelled of alcohol. The judge ordered her to submit to a breathalyzer, and she blew a 0.085, which is over the legal limit for a DUI in Florida. The judge ordered her to be placed in jail until she blew under a 0.08 on the breathalyzer. Ultimately, a direct contempt hearing was scheduled, and the judge found her in contempt for appearing in court while impaired from alcohol and sentenced her to six months on probation.

In a criminal case in Florida, if the state has a full, valid confession of a crime from a suspect, can they use that alone to convict the person of the crime? No. The state must have evidence independent of a confession to prove the crime occurred before it can use a confession against a defendant. Most of the time, this is not an issue, but there are cases where the state tries to rely on a confession without much, if any, independent evidence that a crime occurred and that the suspect committed the crime. The state does not need to prove the crime beyond a reasonable doubt independent of the confession, but the state does need to have substantial evidence of the crime outside of the confession. The state can use direct or circumstantial evidence to independently establish the crime. However, independent evidence of the identity of the suspect is not a requirement for a confession to be admissible, unless it is necessary to prove a crime occurred.

This may seem obvious. The police must have some evidence that the suspect committed the crime or they would not likely bring the suspect in for a confession. However, there are cases where the identify of the suspect is critical to the issue of whether a crime occurred. For instance, if three people are in a vehicle, it crashes and when police arrive, all three people are outside of the vehicle. When the police arrive, it is not clear which was the driver at the time of the crash. Only one of the three is impaired from alcohol. This is only a crime (a DUI) if the impaired person was driving. If that person confesses that he was driving, that may be the only evidence that a crime occurred as it would not be a crime if one of the other two was driving. In that case, if the state had no other independent evidence the impaired person was driving, the confession alone would not be enough to prosecute the driver for DUI.

Consider another DUI case where a person crashes into another vehicle and causes an injury or death and leaves the scene. The police track the vehicle and determine that it was the vehicle involved in the crash based on paint transfer and location of the damage. Inside the vehicle, the police find items linking the vehicle to the suspect, such as a house key and documentation. If the suspect later confesses, that confession could be used against the defendant since there was independent evidence that a crime occurred and that the suspect was the driver.

In Florida, there are a lot of drug cases and gun cases that involve the concept of constructive possession. Actual possession is when the police find a gun or drugs on a person i.e. in his pocket, in his hand, in his waistband, sees him throw the drugs on the ground. Constructive possession is a lot more vague. The state can convict a person of a possession of drugs or gun charge based on constructive possession. However, it can be more difficult.

In layman’s terms, constructive possession means the illegal item(s) is in a place where it is sufficiently clear the suspect knew it was there and had some control over it. In other words, the state needs to present sufficient evidence for a jury to believe the defendant knew about the item(s) and either put it there or had the ability to remove it. The state does not, however, have to prove the defendant actually did place the item there or intended to take it away at some point.

Again, it is vague, but some examples might help clarify it. Of course, ultimately, it is up to a judge or jury to decide.

There has been a lot of publicity about grand juries due to the recent decisions involving police officers and homicides where the grand juries have decided not to move forward with indictments. Along with the publicity, there has been a lot of confusion about what grand juries do, how they do it and what they are actually deciding.

Grand juries are very different from the regular juries that participate in criminal trials. First, the few similarities. The people who make up grand juries and criminal juries generally come from the same pool in the community. They are both sworn to do their jobs, and they both listen to evidence. After that, there are significant differences. In a criminal trial, the jury gets to hear both sides, and each witness can be cross-examined by the other side’s attorney. As a result, if a witness is not credible or changes his/her story, the other side’s attorney will have an opportunity to question the witness, attack him/her with prior inconsistent statements and ask questions and present evidence that calls that witness’s testimony into question. That is a key component to criminal trials. Both sides get to question the other side’s witnesses to attack any areas the attorney believes is questionable, or an outright lie.

That does not really happen in grand juries. Both sides are not present in grand juries. Only the prosecutor is present to ask questions of witnesses in a grand jury proceedings, and he/she can be hard or easy on a witness depending on how that prosecutor wants the proceedings to go. The grand jurors can ask questions of witnesses, but they rarely do. Even if they want to, they are not likely to be experienced in cross-examination and do not have a full grasp of the evidence and the case to do a proper job of questioning a witness’s credibility.