Escolar Documentos
Profissional Documentos
Cultura Documentos
WHAT IS ARREST? 4
WARRANTLESS ARREST 4
TERRY DOCTRINE – STOP AND FRISK 5
KNOCK AND ANNOUNCE 6
HOT PURSUIT 7
ARREST PURSUANT TO WARRANT OR OTHER PROCESS 8
ARREST WARRANT 8
COPIAS, ALIAS, AND PLURIES 9
FIRST APPEARANCE 9
DISCOVERY 18
MISCELLANEOUS AUTHORITIES OTHER THAN RULE 3.220 THAT HAVE DISCOVERY IMPLICATIONS 18
DISCOVERY PURSUANT TO FLA. R. CRIM. P. 3.220 19
GENERALLY 20
AS TO CONFIDENTIAL INFORMANTS 20
DEPOSITIONS 20
RICHARDSON HEARINGS 21
PRETRIAL MOTIONS 21
GENERALLY 21
MOTIONS IN LIMINE 22
SWORN MOTIONS TO DISMISS 23
MOTIONS TO SUPPRESS: PHYSICAL AND TESTIMONIAL EVIDENCE 24
CODEFENDANT STATEMENTS 25
MOTIONS OF JOINDER OR SEVERANCE 25
MOTIONS TO DISQUALIFY THE TRIAL JUDGE 26
MOTION FOR CHANGE OF VENUE 26
SPEEDY TRIAL 27
THE CONSTITUTIONAL RIGHT 27
STATUTES OF LIMITATIONS 27
THE STATUTORY RIGHT 28
JURY SELECTION 29
VOIR DIRE EXAMINATION OF THE VENIRE 29
EXERCISING CHALLENGES/STRIKES 29
Arrest
After 1982, the Florida Constitution (Article I § 12) was amendment to say that Florida
Courts to provide the protections of the 4th Amendment of the Constitution.
The effect of the amendment was to take Article I § 12 out of the Constitution.
3 cases that have to do the 4th Amendment Exclusionary Rule that have changed
the landscape
o Michigan v. Hudson
Police had a warrant but didn’t knock and announce
Should evidence be excluded?
Scalia = Justice Voldemort
Writes should not be excluded and wants to get rid of the
exclusionary rule
o Herring v. United States
Mistaken arrest warrant
Chief Justice Roberts – hates exclusionary rule also
o United States v. Davis
Justice Alito also hates Exclusionary Rule and minimizes it
Common law – no exclusionary rule like today
Year 1914 - 1921 – 4 cases that revolutionize the exclusionary rule
U.S. v. Weeks
o 4th Amendment does not create a right but tells that if evidence has not
been received rightfully, it cannot be used by the court.
If the cops violate your rights, you can go to the court for remedy;
if the courts do, no where to go.
Amos
Guled
Silverthorne Lumber
o Judge likes Justice Holmes
What is Arrest?
California v. Hodari D.
Facts:
Police wearing police shirts patrolled in a high-crime area and saw youths around
a car.
Youths run away, Hodari is running down an ally and takes something out of his
pocket and throws it while he’s running.
Hodari is tackled. On him only cash and a pager
Find what he threw and it’s crack.
No probable cause if crack is the fruit of illegal arrest, it will have to be thrown
out; if the crack is not the fruit of an illegal arrest, then it is allowed in.
Issue:
When was he arrested
Defense – Arrest was when the chase occurred
Holding:
For there to be an arrest there needs to be either:
o Physical contact
o Or, submission to authority
Here, there was no submission of authority and physical contact happened after
the abandonment of crack.
Dissent:
If cops shoot at you and miss, no arrest; if they hit, it is physical contact, arrest
majority says yes.
Warrantless Arrest
In Florida the overwhelming majority of arrests are warrantless.
Florida § 901.15
Common law rule –
o If in an officer’s presence a misdemeanor is committed, he can arrest
o If an officer has probable cause to believe a felony is committed, he can
arrest
Reason –felony is a crime punishable by more than one year in
prison, a misdemeanor is punishable by up to one year in prison.
Because misdemeanors are less serious crimes, we are
reluctant to arrest for them unless in the presence.
C.E.L. v. Florida
First footnote is wrong. Should be Article 1 section 12
Youth in a high crime area sees police and he runs
Police says stop and he continues. Police find nothing
In Florida there is a lawful command of a failure to obey
Defense would say they had no basis to order him to stop in the name of the
law, it was really an unlawful command
State argues lawful because articulable reasonable suspicion. It was a high
crime area and he fled from the police
o Wardlow – merely factors to be considered but CEL says it wardlow says
its articulable reasonable suspicion.
o Dalbert – admissibility of scientific and expert cases
High crime area –is an opinion
What kind of crime, how do you know?
Illegal to not obey a LAWFUL police command
CEL has been criticizes, saying the citing to Wardlow is wrong because that is not
what Wardlow said.
State v. Cable
Facts
Identical to Hudson v. Michigan
Holding:
Florida Supreme Court said there are 2 statutes in Florida (Ashwander Rule) and
there is a common law with respect to knock and announce and a case called
benefield saying a violation in a knock and announce is remedied by suppression
Dissent:
Poleston who says because the majorities outcome is based on statutes and Florida
court interpretations of those statutes, the legislature is the court of last resort s, so
that if we misinterpret the legislature can change the statutes to bar exclusion of
evidence as a remedy for failure to knock and announce.
Everyday there is no change in the statute shows affirmation
Hot Pursuit
Common law- hot pursuit had to originate at the scene of the crime, and must maintain
continuous line of sight surveillance
Today in Florida,
FL. § 901.25 Fresh pursuit; arrest outside jurisdiction.
Porter v. State
Facts: Crime committed in pompano; car described as Cadillac with white description
heading south on i95. Cops on the side of 95 hear description on the radio and follows
car. At commercial Blvd., they decide to pull them over. Pompano officer is out of
jurisdiction in FLL.
Issue: Could officers make arrest?
Holding: 4th district said – in order for there to be hot pursuit:
The police acts without unnecessary delay
The pursuit is continuous is uninterrupted
Must be a close temporal relationship among:
o The commission of the offense
o The commencement of the pursuit
o The apprehension of the suspects
In common law this isn’t going to work, the police didn’t follow from the time
and place of the crime.
o Now you have to be realistic, its really one continuous urban sprawl on 95,
bonnie and Clyde common law not going to work.
State Legis. made Mutual Aid Acts, empowers local governments to enter into contracts.
Look at
Fl. § 23.1225
Intention of Contract
o Ex. Cops can do anything in any jurisdiction involved
Existence has all but eliminated hot pursuit litigation
First Appearance
Fl. Crim. Pr. 3.125 – notice to appear
A Grand Jury
Indictment comes from the grand jury
Grand jury – Used to be – prosecutor presents the case to the grand jury, only
prosecutor, witness are there, no judge or defense. – no longer done like this
Now it is a prosecutors tool to develop and prepare it’s case – all crimes must be
indicted
o In FL any crime can be charged by grand jury indictment (even
misdemeanors) but capital murder MUST be charged by grand jury
indictment
Fla. Stat § 905.17
Amended to say the witness may be represented in a grand jury by one attorney
Fla. Stat § 905.01
Arraignment
Public Defenders
1. Waive (formal) reading of charging document
2. Enter into plea
---------------- (Now is done for some strange reason)
3. Demand a trial by jury
4. Notice of participation in discovery
5. Time for motions
Santoni v. State
Cannot plead guilty to second degree murder and prevent the state to prosecute
for capital murder in this case.
o Because the worst the murder the more likely they would ever be
prosecuted for capital murder because they would always go for life in jail
with second degree murder
Plea Bargaining
Contractual negotiation in the criminal justice system
What can be given in a plea Fla.R.Crim.P. 3.171
Used to be that the judge would say prosecutor you make this offer and Defense you take
it – stopped with State v. Warner
Judges cannot initiate their own participation in plea bargaining, however, if
either of the parties asks the judge to help, the judge may choose to involve
himself. Judge cannot take away constitutional right by trying to enforce a plea
Wilson v. State
Court considered whether a sentence was vindicated because prior to trial the judge was
involved in the plea process and imposed a very harsh sentence after trial.
Factors to look at to see if vindictive
o Who initiated involvement? If judge – evidence of vindictive sentence.
o Did judge say anything that prevents constitutional rights – take plea and
if we go to trial and he’s guilty he will get a worse sentence
o The disparity between the plea bargain and the sentence.
o Did the judge explain on the record why he imposed such a difference
sentence? – Didn’t know much about the case before trial started.
What is Bail?
903.011 – “bond include any and all forms of pre-trial release” – NOT TRUE
Bail is specific forms of pre-trial release based on
3.131(b)(1) – forms of pre-trial release from least stringent to most stringent. (non
exhaustive
Court is obliged to prefer the least stringent and non-monetary as necessary.
Don’t want it to be a privilege of the wealthy
Court is constitutionally obliged to prefer the least onerous form of release that
will serve the prupose, prefer non monetary terms, avoid equal protection
problems.
A. First form – release under the defendant’s own recognizance (naked promise to
appear)
B. Release on unsecured appearance Bond – IOU that will be voided if the
defendant shows up. Someone says I’ll give $x if the defendant shows up (no
money changes hands).
C. Placement of restrictions on the travel association, or place of abode – should
not be on the list! Its is a restriction/additional condition not a form of release
o Imposition of conditions – Hernandez v. Roth
o Nebbia condition (most common) – must tell where you got the
money from for the bond. – Reason court won’t take dirty money /
want to know its money you care about (mortgage money not
stolen)
The court doesn’t want to sully it’s hands with tainted
money.
o Drug testing
o Parrino v. Bradshaw ---- Don’t even say nebia in state court, just
talk about source of funds condition or source of funds hearing
o Passport is the property of the FL (State Dept.) Varela-Fernandez
v. Burgos – dicta says don’t mess with federal owned passports
Ordering the seizure of a passport is not a great idea
because it is the property of the government of the united
states
D. Placement of the defendant in the custody of Defendant or Organization –
organization – Pre-trial service to ensure you don’t skip out of town
E. Cash bond and corporate surety bond –
o Cash bond (pay price and get out, now you pay court costs out of bond)
Ellis v. Hunter – Ex father in law pays bail of $5,000 thinking he’ll
get the money back. Shows up and takes plea – he instead has to
pay court cost for this case and prior case. He got nothing back.
Before we return a cash bond, we take out what you owe
for court costs
o Corporate Surety Bond ---Bail Bondsman Bail
Surety ship – trilateral contractual arraignment
3 parts Obligee (State of Fl. for use and benefit of county),
Principal (Criminal defendant), and Surety (Insurance Company).
Bail bondman is a form of insurance – bondsman is an
insurance agent.
Premium is 10% is given to bondsman
o 5,000 – 500 is split three ways (not equal)
Bail bondsman keeps most
Small part is going to the bail bond company
B.U.F. – Billed up fund – piggy bank for
rainy day for when they won’t show up.
Conditions
Must say conditions at bail
o Must say no contact with victim and defendant must be told who the
victim
Documents for bail are conditions that defendant signs
One state (Florida) that does not interpret this like this^^
Define “Proof of guilt is evident or the presumption great” as a standard of proof
higher than proof beyond a reasonable doubt
State v. Rapoza – Hirsch wrote this
Bail hearing in a case where ∆ is subject to death or life in prison has an Arthur
Hearing.
To win trial you must prove beyond a reasonable doubt but in an Arthur hearing you must
prove HIGHER than that?
Defendant’s right is reasonable bail not bail in general
3.131(b)(3)
(b) Advice to Defendant. –At the defendant’s first appearance the judge shall
immediately inform the defendant of the charge, including an alleged violation of
probation or community control and provide the defendant with a copy of the
complaint. The judge shall also adequately advise the defendant that:
o (3) The defendant has a right to communicate with counsel, family, or
friends, and if necessary, will be provided reasonable means to do so.
Reasons for bail
Will he flee?
Will he be a danger to the community?
What is reasonable?
Factors of bail:
o Gravity of offense, ties to the community, etc.
Depending on which factors you look at you could argue bail is $1,000,000 or
reasonable bail is $500.
Can’t have pretrial detention if you don’t move for it
o Then you start to have this song and dance going on between the defense
attorney and the prosecutor.
The kind of business (song and dance) that was one of the moving force behind a
dramatic change in the law of bail
Mitchell justice department comes up with pretrial detention. Determine of he will
show up for trial but also if he will misbehave in the future
o A lot of pushback from lawyers, judges, etc.
o Conceptually troubling: not trained to predict the future behavior
o Became a part of the federal law, and went to the state’s system but it also
has the potential to put the end to hypocrisy (brings the truth into bail
proceedings) (judge won’t let out because he will be in the sun sentinel
etc.)
Pretrial Detention
907.041
Has a list of 22 crimes
(4)(c)
o Each number has slightly different rules for pre-trial detention.
o General idea: if ∆ is charged with a dangerous crime and there is some
evidence he did it, and there is a showing that if we let him out on bail
under no conditions there is a probability he will be a danger to the
community – reason for pretrial detention.
Appearance condition:
SHOW UP
Remedy for breach of appearance condition?
Forfeiture of bond
U.S. v. Feeling
Performance/Collateral conditions:
Must maintain curfew
Urine test
No contact with victim
Can’t leave county, tri-county
Limit-less as long as it relates to facts of the case.
Remedy for breach of performance condition?
Revocation – Jail
The “Common-law Bail Agent’s Privilege” and the surety’s right of surrender
Common law bail agent’s privilege
May use reasonable force to recover the bail if they don’t show up.
If state increases charges or adds new charges, surety’s bond goes away because it is
a break in contracts.
Remission
In 2 years within the forfeiture, if bondsman or police find ∆, they can ask for all or
part of their money back
Discovery
Miscellaneous authorities other than Rule 3.220 that have discovery
implications
Things Defense is entitled to:
Brady v. Maryland Brady Doctrine
o If prosecution has evidence that is exculpatory, upon a proper request
they must produce that evidence to the defense without doing anything to
reciprocate.
o Included but not limited to:
Witnesses with criminal records
Witnesses and statements that deny defendant did it
Witnesses are insane
Evidence showing defendant was insane at time of trial
Prosecutor cut a deal with witnesses
§ 925.05
Statements or confessions; availability to defendant.—On motion of the
defendant after an indictment, information, or affidavit has been filed, the court
shall order the prosecuting attorney to permit the defendant to photograph or copy
any written or recorded statements or confessions of the defendant, whether they
are signed or not. The order shall specify the time, place, and manner of taking the
photographs or copies and any other conditions.
Defense can file a motion to move for the production of any admissions or
statements
Generally
As to confidential informants
Whosarat.com
Positives
o You can make a lot of money, call FBI, police, Miami police, see who will
pay most.
o S visa – visa to get in to the country to snitch
o Moiety – contingent fee for being a snitch
Negatives
o No employment benefits
o Short career – retire or dead
Depositions
Typically does not happen in a court room but in the State Attorney’s Office or
Defense attorney’s office.
Richardson Hearings
An on the fly mini-trial in the middle of trial to address a problem
Requires 4 decisions
o Was there a discovery violation?
Didn’t list witness in discovery
Even if no discovery violation keep going
o Was the violation willful? Was it deliberate?
o Is it material? How much does it matter
o Is defense prejudice by discovery violation?
MOST IMPORTANT
What is procedural prejudice?
Defense attorney makes opening statement saying D
didn’t do it because he wasn’t there, new witness gives
ID at the location. Now the attorney is prejudice
because she said in her statements there was no ID but
now its ruined.
Strict rules of evidence don’t apply
Richardson v. State
Pretrial Motions
Generally
3.190(e)
Defense attorney asks to dismiss all charges during trial, and prosecutor asks
to continue to hold defendant in custody because someone else is going to
file another information not related to these charges. Judge may take him
into custody for a reasonable period of time. Reasonable will turn on the facts
ex. If it will take one day to file charges than 24 hours. If for war crimes than
maybe longer.
Motions in Limine
Motions in limine (i.e., “at the threshold”) are made out of the presence of the
jury to address the admissibility or not of evidence in circumstances in which mere
reference to the evidence in the presence of the jury would be so prejudicial that an
after-the-fact objection, even if sustained, would not purge the prejudice. Although
motions in limine are among the most common specimens of motion practice, there
is very little law regarding them.
For a judge to grant a motion in limine, he must find: (1) that the evidence,
question, or statement sought to be excluded by the motion is, at least provisionally,
inadmissible; (2) that the mere offer or mention of the inadmissible material would
be so prejudicial that its rejection by the court, coupled with an admonitory
instruction, would not remedy the prejudice; and (3) that there is sufficient
likelihood that the inadmissible material will be offered to justify an order
determining its inadmissibility in advance of the fact – something that judges are
properly reluctant to do, because an issue of admissibility is almost always
dependent on context and can rarely be determined in a factual vacuum.
An order in limine is in some sense equitable in nature: it commands that something
shall, or (more commonly, but not exclusively) shall not, be done. It is, however, a
maxim of equity jurisprudence that equity will not enjoin that which the law already
prohibits. But an order in limine commanding an attorney, for example, not to offer
hearsay unless a recognized hearsay exception supports it; or not to lead on direct
unless the conditions prevenient to leading on direct are present, is an order
enjoining that which the law already prohibits. As a general rule, such an order in
limine should be neither sought nor granted.
The vexing problem in this area of the law, however, concerns the
demonstrably recalcitrant attorney. Suppose defense attorney Jones has a habit of
informing the jury in opening statement that his client has no prior criminal record.
Jones’s conduct is unlawful and results (upon an appropriate objection) in an
admonitory instruction and the striking of the offending remark. The law presumes
that jurors will follow instructions; but lawyers don’t.
Suppose, then, that Prosecutor Smith, who will start a trial against Jones the
first of next month, obtains the transcripts of the opening statements from the four
or five recent trials in which Jones engaged in the demised misconduct and appends
them to his motion in limine. In these circumstances, would the trial judge be well
advised to grant the motion? The comments that Jones habitually makes in his
opening are clearly inadmissible; it is at least arguable that the prejudice resulting
from the offending comments is not entirely remedied by sustaining an objection,
striking the comments, and giving an admonitory instruction; and, given the factual
predicate created by the transcripts from Jones’s prior trials, it is at least arguably
the case that there is sufficient likelihood the offending comments will be made to
justify an order determining their inadmissibility in advance of the fact. But this
factual predicate is rarely laid in support of motions in limine.
Codefendant statements
Rule 3.152(b)(2)
2 defendants in separate interrogations. D1 makes a statement saying “D2 and I did
it”. D2 says “fuck off”
Prosecutions have D1 on the witness stand and have him say they did it. Defense
says “objection hearsay and confrontation clause” (because the one offering
evidence is the other defendant).
§ 910.03 you must try to find a new venue, which is similar to the original one.
Ex. Tampa/Orlando. Miami/Palm Beach/Broward but might be too close
where people might be familiar with the case.
Speedy trial
The constitutional right
Florida’s constitutional right follows exactly federal law.
Statutes of limitations
775.15
A prosecution for a felony of the first degree must be commenced within 4
years after it is committed.
(b) A prosecution for any other felony must be commenced within 3 years
after it is committed.
(c) A prosecution for a misdemeanor of the first degree must be
commenced within 2 years after it is committed.
(d) A prosecution for a misdemeanor of the second degree or a noncriminal
violation must be commenced within 1 year after it is committed.
(15) SOL starts a year after the identify of the person is known or should
have been known with due diligence.
(16) SOL never expires for major crimes.
Fla. Stat. § 812.035(10); and NB that statute of limitation periods are extended to five
years for prosecutions involving securities transaction violations, Fla. Stat. Ch. 517;
Medicaid provider fraud, Fla. Stat. § 409.920; insurance fraud by an employer, Fla. Stat.
§ 440.105; filing a false insurance claim, Fla. Stat. § 817.234; felony abuse against
elderly persons or disabled adults, Fla. Stat. § 825.102; and prosecutions involving
environmental control felony violations, Fla. Stat. Ch. 403.
When the clock finishes the Defense will file a Notice of Expiration. Within 5 days
you must have a hearing to determine if the alarm went of because there are 3
things that could determine whether it went off or not.
1. Court ordered extension of time
a. Ex. only witness is serving in Afghanistan and won’t be back, please
hold speedy trial. Judge grants
2. Failure to commence trial within time period is attributable to defense
(attorney).
a. Defense continuation
3. Defendant (actual defendant) was not continuously ready for trial
If any of the factors are present the speedy trial is smashed and it will never exist
again.
If none of the factors are met, Defendant does yet get a speedy trial discharge
(forever).
Prosecution has 10 days to get defendant to trial. (window period, capture
period, grace period)
AT MOST 15 DAYS. Could be 11, whenever the hearing is 10 days after.
What does get him to trial mean?
Trial (in this ONLY) is to bring down the all the people (vionire?) to be sworn
in to pick a jury. You can swear them and tell them to come back next month.
What if the prosecution is late in giving discovery and now you have to waive
speedy trial. Tough luck, these are not constitutional rights, Florida rule based
State v. TG – if there is a delay they have to take a continuance and you lose your
speedy trial, but if the delay is inexcusable
If the delay is inexcusable they will have a prosecution continuance.
o Nothing tells us what constitutes an inexcusable delay.
o If the failure to make discovery was willful that would be inexcusable.
Facts: after trial had been set and during the 10-day grace period, discovery
was sent to defense, and was substantial in quantity and performance, and
defense could not make use in time for trial.
o Some things identified for what goes to inexcusability of untimely
discovery.
Jury Selection
This and jury instructions are the two most important parts of the trial.
Differs from every other phase of trial. Everything else includes a single function.
The law of Florida emphasizes attorney conducted Jury Vior Dire. In federal they
just choose.
Exercising challenges/strikes
Crossing off people to get them to the jury.
Do not pick a jury alone, have a trial partner, paralegal, cousin, mom
(preferably a non-lawyer) sitting at the table taking notes for you.
Try to memorize jurors names and address by names
Alternate asking questions to the whole and individual questions. Never do it
in order hop around.
Don’t fear the bad answer.
o Talk about prior conviction then because it will come up later
Exploit the good answer
o You know you’ll lose the person who smokes marijuana so keep going
with it. Then jury will think its not like he killed someone, just mere
marijuana.
When you first get up to begin you are entitled to 2-3 sentences (unwritten
rules). If your case has a theme, say it. My name is Joseph Feldman and I’m
going to ask you some questions about __________. It’s the first words out of
your mouth the jury will hear. Be forceful.
o If you can memorize their names, when you’re done with everything
and you ask each person BY NAME a stupid question.
2 types of challenges
Challenges for cause
Peremptory Challenges
Peremptory Challenges
Original idea was for a few times, for no reason, I don’t want that guy on the jury
because he gives me a bad feeling.
In the Mid-1980’s limitations were made by the US and Florida Supreme Court:
Melbourne v. State – Melbourne Test: (Hirsch thinks its unsatisfactory)
o If Defense (or prosecution doesn’t matter) wants to prove the
peremptory challenge is being used wrong there are 3 steps they must
prove
(1) Party opposing the peremptory jury removal:
(a) Must Object
(b) Identify saying he belongs to a
racial/gender/ethic/religious etc. group
(c) Remedy the situation
(2) Burden shifts to peremptory challenged party for a non-
race/gender/etc. reason for the removal
(3) Judge decides if the reason is/is not pre-textual
(1) Unsatisfactory because when saying objection hearsay you only say
objection not, objection hearsay because this statement is out of court and
given for it’s truth.
o As long as jones is human, there is no way to get the first step wrong
A test you cannot fail is not correct
(2) The point is you don’t have to give a reason for the challenge
o the court says it doesn’t need to be a good reason so long as it’s
neutral. It can be idiotic even as long it its neutral.
Ex. He has tattoos I don’t trust people with tattoos because
they always acquit.
(3) must decide if (2) is lying. Judge decides by looking at factors:
o did he ask no/too many question to strike them
o did the person give the same answers as other jurors
o did he not dismiss other jurors with tattoos?
Giving the finger, dirty look – non-verbal conduct for peremptory challenges, unless
the judge says yes I saw it, that doesn’t satisfy step 2.
Typically have 1 alternate juror who sits but does not decide unless one of the jurors
gets sick or doesn’t show up.
peremptory
Capital Case- 10
Felony – 6
Misdemeanor – 3
If there are multiple defendants each defendant gets that number. Prosecution gets
the number how many total defendant’s get. 3 defendants for felony – 18.
Proof and Argument
Invoking “the rule”
After opening statement –
90.616 – if one witness in the case is testifying, no other witness in the courtroom
should be in the room.
Other witnesses remain in the hallway.
Does not apply to opening statements because this is not testimony – but
some judges (not Hirsch) exclude witnesses during opening statements.
Common law created this rule because people confess out of delusion, to protect
others, because mental disorder, cops beat them up. And although it can be valuable
probative evidence there needs to have a filtering device.
ON FINAL!!!!!
Williams v. State, 689 So.2d 393 (Fla. 3d DCA 1997).
Fla. Stat. §§ 92.565; 560.123; 560.125; 655.50; and 896.101.
Hobbs v. State, 999 So.2d 1025 (Fla. 2008)
Not simple anymore:
Florida legislature: Change for only for sex crimes and money laundering crimes
Prosecution does not have to prove corpus delicti if 2 conditions are met:
o Prosecution can’t prove corpus delicti
o Judge determines the confession is trustworthy
Hobbs – teenage girl goes to cops saying dad touched her inappropriately. Dad
confesses and then daughter goes back and recanted saying she made it up. State
only has a confession. If confession goes in he’s convicted if not he’s free no case
against him.
Friend’s case – Witness asked if she could walk to the person because eye sight is
bad.
90.105 – judge makes preliminary findings of fact – you’re honor may you it put on
the record that the defendant was pointed to. Unless the judge says, “I so find . . . ”
On appeal you have nothing.
Confessions
Can the prosecution cross-examine about a failure to tell the information after
arrest and before Miranda rights were given.
State v. Hoggins
Federal Court – Fair game
Florida Court – its true he wasn’t informed of his Miranda rights after arrest,
he had the rights.
Argument taking all the facts in a light most favorable to the prosecution, have
the prosecutors established a prima facie case? Some evidence for each of the
elements of the crime.
Prosecution will not have a deposition to impeach the defendant. But he is like any
other witness
If he has prior convictions it will get in (in Florida)
o Usually it will be said during direct so it won’t make him look bad on
cross.
Common law circumstantial evidence rule – part of the law in Florida today
Harrell v. State (he wrote) (perry mason tv show quote) recognizes
circumstantial evidence is always susceptible to more than one interpretation.
Lawyers used to tell a story why circumstantial evidence is more susceptible
to more than one interpretation.
o Old man is driving and stops by a barnyard fence and on the side of
the barn there are small chalk circles. At the center of each circle is a
bullet hole. The man sees 8 boys playing in the barnyard. Asks whom
shot, and boy says he did. The guy says I’ll give you a dollar if you can
do it again. Boy takes out a gun shoots and circles the shots.
In a states case the evidence against the defendant the prosecutor needs to
not only prove the case beyond a reasonable doubt, they need to eliminate all
innocence.
If it’s all circumstantial and there are 2 explanations one innocent one guilty
then judge must tell the jury to decide whether there is a reasonable
hypothesis of innocence.
o If there is direct evidence by the prosecution – then the common law
circumstantial evidence rule does not apply.
o If there is none – the judge must find, and defense says they want jury
instruction ruling.
Defense wants to know whether it will apply because she
wants to argue a reasonable hypothesis of innocence. An
explanation of the facts that leads to no guilt.
Because then they MUST ACQUIT.
QUOTE FROM JOHN MARSHALL
Closing argument
Structure:
Prosecution Summation
Defense Summation
Prosecution Rebuttal closing
Fryer v. State
Bailiff sits outside jury room to make sure no one gets in or out
Send out notes and judge does not respond, lawyers must be called and read the
note. They then decide what response is being sent back. The jury note and the
response note become part of the jury record
Reversible error – cannot ask a jury what thy think they will decide or what split
they are.
Once a verdict is accepted, the clerk returns to the judge saying the jury has
succeeded their verdict and then discharged.
Judgment