Criminal Law Topics

Your comments are always welcome. Please let me know which topics you would like discussed. Also visit us at or on our facebook page.

Thursday, February 23, 2012

It was him!!!! Identification of a suspect.

It was him!! Witnesses are often shown photo line-ups (or locally referred to as 6-packs) so they may attempt an identification of a perpetrator following a crime. The multiple photos with similiar characteristics is designed to provide a reliable identification consistent with an accused's due process. However, such carefully presented picture identifications do not always occur.

The US Supreme Court decided a case last month where police went into a witness's apartment to ask her who she saw committing a crime. She looked out her window, saw a man and pointed at him claiming he was the one. Based on her identification, he was arrested and convicted. The defendant argued that the court should have held a hearing before trial so he could argue that it was unreliable and that the identification should be suppressed (thrown out).

Legally, the Court held that the "Due Process Clause does not require a preliminary judicial inquiry into the reliability of an eyewitness identification when the identification was not procured under unnecessarily suggestive circumstances arranged by law enforcement".
Perry V. New Hampshire.

In other words, there may not always be the fairest (or most credible) identification of the suspect, but if police were not attempting to wrongfully influence the witness, than there is no need for the courts to debate the identification before trial, it will be up to the jury during trial to give it the credibility they want.

Rights to Privacy at work?

Do you have a right to privacy regarding items in your desk at work? No. Court reaffirms NO 4th Amendment protection (privacy right). Kelly v State

Juvenile life sentences

The US Supreme Court has ruled that a "life sentence" for Juveniles is Cruel and Unusual Punishment for non-homicide offenses (Graham v Florida). However, lower courts are sentencing Juveniles to prison (for non-homicide offenses) for terms of years instead that are well in excess of their natural lives. (Henry v State) Fair?

Monday, November 21, 2011

What is Diversion?

Diversion programs usually have the effect of "diverting" the case away from the typical Criminal Court process and penalties. It allows the candidate to be monitored (usually by a probation department) for the purpose of enrolling in and completing classes or performing community service hours, or both. These obligations are available for offenders who in the discretion of the State Attorney's Office do not need the full resources of the Criminal Justice System to hold them accountable for the alleged crimes.

Diversion can be a great outcome as it can have the effect of being "dismissed" and removed from your "record". Once the candidate completes the Diversion program, the administrators notify the State Attorney's Office, and they in turn nolle prosse (dismiss) the case. When the case is nolle prossed, it may be eligible for expungement (destruction of the court file and law enforcement arrest records).

If you do not successfully complete the program, the case is returned to the normal Criminal Court docket where the defendant faces the normal case resolutions such as a trial or plea bargaining.

The State of Florida and Collier County offer Diversion programs to some of the people charged with crimes. They are created by statute and some are individually created by the State Attorney's Office.

In Naples, Collier County, there are diversion programs available for general Misdemeanor, Domestic Violence and less serious Felony cases. One may also be able to receive Diversion through Drug Court and Mental Health Court. However, the fact the programs exist does not mean everyone’s case is eligible to be diverted. The Diversion programs are an executive function and the State Attorney's Office has discretion as to who they wish to offer the programs. The State Attorney's office will look at the facts of the case, prior offenses a defendant may have and consult any victims there may be in the case. If you have been charged with a crime and want to consider Diversion, ask your attorney to explore the this option. They can discuss the circumstances that justify you receiving a Diversion offer.

Friday, October 14, 2011

How to hire a Criminal Defense Attorney

When you have been arrested and charged with a crime, perhaps the most important decision you make is who you choose to represent you through the process. There are things you should avoid, or at least be aware of, and there are some positive steps you can take to find the right attorney.

First, don't be fooled by advertisements alone. Some attorneys will spend a lot of money attempting to get your attention through advertisements. However, an attorney who excessively advertises is not necessarily the best choice for helping you. Reputation and skill say a lot more about an attorney than the advertisement.

Be wary if an attorney is promising you an outcome based upon your intial meeting with him/her. There is no way to guarentee a result. Every case is different, and the prosecutors and judges handling the cases will likely be different too. There is nothing wrong with drawing upon experiences to help illustrate how the attorney can create a plan for their case. But promising an outcome is negligent and irresponsible.

A lot of attorneys boast that they previously worked as prosecutors. Having that experience can be valuable, but there are varying degrees of experience an attorney can gain from working at a prosecutor's office. If an attorney worked for a year or two at a prosecutor's office s/he may have some trial experience and possess the ability to analyze the elements of a case from a prosecutor's perspective. Others with more experience may offer more insight into decision making, etc. Ask what benefit they received from being a prosecutor and how will that help you in your case?

Research the attorney. Speak to people who may have been in a similar position as you. Who do they recommend and why? Review articles on the internet. Read their bios. Have they received any relevant training? Recognition?Awards? Interview the attorney. Ask about experience. With the economic downturn, there are attorneys handling criminal cases that would not have done so years ago. Ask them if they will be the attorney handling the case from start to finish. Can they contact you when you have a question? What is their plan for your case?

All these issues should be considered when you hire an attorney. It is an important decision but if you understand your priorities, you will make a wise decision and have a competent attorney help you though your important legal days ahead.

Daniel Cavanaugh
Naples, Fort Myers

Wednesday, May 25, 2011

Character Evidence in Criminal and Civil Cases

When Character Evidence is admissible in Civil and Criminal cases

This article will address the admissibility of character evidence for parties in civil and criminal cases.  While rule 90.404 of the Florida Rules of Evidence restricts the admissibility of character evidence, there are limited instances where character evidence is allowed.

Can Character Evidence be admitted in a Civil Case? Generally No

Character evidence is only permitted in civil cases when “character” is an essential element of the case.[i] Reputation evidence for this proof can be used but admitting specific instances of conduct is a far more logical way of presenting the evidence.  That being said, it is the very rare cause where character is an essential element of the case.  Defamation, Libel, Negligent Entrustment of a Motor Vehicle are all examples of causes of action that put character in issue.[ii]  For example, Mr. Jones accuses Mr. Smith of being a thief. Mr. Smith sues Mr. Jones for defamation.  If Mr. Jones claims truth as a defense to an action in defamation, then he is entitled to introduce evidence of Mr. Jones’ character as a thief.  When defending against the elements of the instant case, specific instances are admissible to justify the defense (or the allegations of him being a thief).[iii]

Is Character Evidence allowed in Criminal Cases?  Sometimes

In criminal actions, the Defendant can introduce character evidence when it is directed at a trait relevant to the crime. On the other hand, the prosecution cannot introduce evidence meant to prove the bad character of Defendant (or anyone else).  The prosecutor can, however, rebut the Defendant’s evidence.  For example, if a Defendant has been charged with a theft, it would be relevant for him/her to show that s/he has a reputation for honesty because it is inconsistent with the Defendant’s character to commit a theft crime.[iv]  The character trait has to be relevant to the charge. Mere introduction of good character in general is not allowed. [v]

A Defendant can also introduce evidence regarding a relevant trait of the victim (with some exceptions) and the prosecutor can rebut that evidence. [vi]  Evidence of victim’s character can be proven by both reputation evidence and by specific instances of conduct.[vii]

The prosecution is permitted to offer evidence of other crimes, wrongs or acts to prove motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, [viii] because it is probative of a material issue and is not directed at bad character or propensity.[ix]  While this evidence may prove bad character, it cannot be offered solely for this purpose.[x]  This evidence is subject to several conditions including a time sensitive notice to the defense, a requirement for the proof to be clear and convincing and is subject to a Fla. Stat. §90.403 analysis.

A Defendant can offer specific acts of conduct of the victim to show the reasonableness of Defendant’s actions in a self-defense case, but it cannot be offered to show bad character, as it is not really character evidence at all.  These specific acts are offered to show reasonableness of Defendant’s apprehension.[xi]

“Crossover” Civil cases can provide an exception to prohibition of Character Evidence in Civil Cases.

Some courts including the Second DCA have allowed reputation evidence reserved for criminal cases to be admitted in civil cases where the civil case is akin to a criminal case, such as assault, battery or sexual battery. [xii] “When evidence would be admissible under rule 404(a) in a criminal case, we think it should also be admissible in a civil case where the focus in on essentially criminal aspects, and the evidence is relevant, probative and not unduly prejudicial.” [xiii]

How do we prove Character?  Specific Acts of Conduct or Reputation Evidence

It is well settled that in Florida, one cannot offer an opinion of another’s character in court. “Opinion testimony concerning a person’s character has traditionally been inadmissible on the basis that it is too unreliable.” [xiv]

Instead the Florida Evidence Code only allows specific instances of conduct and reputation evidence to prove character and the opportunities to use both are limited. As illustrated above, the limitations are greater in civil cases than in criminal cases. [xv]

Can anyone testify to one’s Reputation in the Community? No

To offer reputation testimony, “[i]t must be established that the witness is familiar with the general reputation in the community of the individual at issue and the trait in question.” [xvi]

In order for a witness to testify regarding a party’s reputation in the community s/he must prove "that the community from which the reputation testimony is drawn is sufficiently broad to provide the witness with adequate knowledge to give a reliable assessment."[xvii]  "Reputation evidence 'must be based on discussions among a broad group of people so that it accurately reflects the person's character, rather than the biased opinions or comments of . . . a narrow segment of the community.'"[xviii]

“Testimony that a witness had lived in defendant’s neighborhood over twenty years and has seen him interact with neighbors was a sufficient foundation to establish the witness’ knowledge of Defendant’s reputation even though the witness had never spoken to anyone concerning the Defendant’s peacefulness.” [xix]

Evidence of a party’s reputation must be confined to that party’s reputation at a time not too remote.[xx]

The court determines outside the presence of the jury whether the witness has the requisite foundation to testify to one’s reputation.  The trial court is afforded broad discretion in ruling on the admissibility of evidence and its ruling will not be disturbed absent a clear showing of an abuse of discretion. [xxi]

Social Networking – Another source for Character Evidence?

Social networking sites are increasingly becoming a place for people to communicate and keep in contact with each other. Additionally, Plaintiffs and Defendants are turning to these social networking sites to find evidence to use in their Civil and Criminal cases including photographs, biographical information and statements.

Can a witness testify about someone’s reputation based on what they have learned from a social networking site?  There are currently no court decisions that have explored this issue. With all the people on social networking sites, it is a community unto itself. But can it serve as a community for purposes of introducing character evidence? Arguably the online community is broad enough to allow a person to learn sufficient information about another’s reputation. The Florida Supreme Court has allowed reputation testimony to be based on the discussions at the place of employment.[xxii]  It seems logical that just as information gained at a place of employment is admissible, a witness could testify about one’s reputation through their knowledge of the written conversations amongst the online community and their viewing of relevant online pictures and videos.

[i] Fla Jur 2ndsection 236 (citing Law Revision Counsel Note to sec. 90.405, Fla. Stat.)
[ii] C. Ehrhardt, Florida Evidence section 404 (2009 Edition)
[iii] C. Ehrhardt, Florida Evidence section 404 (2009 Edition)
[iv] U.S. v.Hewitt, 634 F.2d 277 (5th Cir. 1981)
[v] C. Ehrhardt, Florida Evidence Section 404 (2009 Edition)
[vi] Fla. Stat. §904.404(1)(b)   
[vii] Smith v. State, 606 so.2d 641 (Fla. 1st DCA 1992)
[viii] Fla. Stat. §90.404(2)(a)
[ix] McLean v. State, 934 So.2d 1248 (Fla.2006)
[x] Fl. Stat. §90.404(2)(a) 
[xi] Grace v. State, 832 So. 2d 224 (Fla. 2nd DCA 2002)
[xii] C. Ehrhardt, Florida Evidence Section 404 (2009 Edition) citing Perrin v. Anderson, 784 F.2d 1040, 1044 (10th Circ. 1986); Crumpton v.   Confederation Life Ins. Co., 672 F.2d 1248, 1254 n.7 (5th Cir. 1982) and Pino v. Koelber, 389 So.2d 1191, 1195 (Fla. 2nd DCA 1980) 
[xiv] McCormick, Evidence section 43 (4th Ed. 1992)
[xv] Fla. Stat. §90.404
[xvi] Lewis v. State, 377 So. 2d 640 (Fla.1979)
[xvii] Larzelere v. State, 676 So.2d 394, 399 (Fla.1996)
[xix] Hoffman v. State, 953 So.2d 643 (Fla. 3rd DCA 2007)
[xx] Alford v. State, 485 So.2d 1992 (Fla. 4th DCA 1987)
[xxi] Muehleman v. State, 503 So.2d 310, 315 (Fla.1987)
[xxii] Hamilton v. State, 176 So. 89 (Fla.1937)

Tuesday, May 10, 2011

Do I need to go to my Arraignment?

In Southwest Florida State Courts (20th Circuit), you will not need to attend your Arraignment as long as you have retained an attorney and that attorney files a Notice of Appearence,  a Waiver of Arraignment and enters a Written Plea on your behalf.

In the Middle District Federal Court in Florida, written waivers are being accepted also.

The purpose of an Arraignment pursuant to rule 3.16 of the Florida Rules of Criminal Procedure is to advise the defendant as to the criminal charge and for the Defendant to then enter their plea to that charge. Since the attorney will be presenting the Court with all of this information for you, you are not required to attend. If your attorney has worked out a resolution for you s/he may then ask that you be present.

You have the right to attend this and all other hearings regardless if you are required to go or not.

If you choose to attend the Arraignment, the Information or Indictment (charging documents) will be read to you and you can verbally advise the Court if you would like to plead Not Guilty, Guilty or No Contest.