11/26/2018 11:42:00 AM

subpoena.
Florida Criminal Procedure

Arrest
A. What is Arrest?

California v. Hodari D
· Facts:
o Officers on patrol in high crime area
o Group of kids ran when they saw police
o Police chased them
o Hodari throws something away
o Hodari was tackled and police found crack rocks in the item thrown
away
· Issue:
o When was Hodari arrested?
· Rule:
o Scalia: Arrest requires either/or one of two things

§ Actual physical contact

§ Submission to authority

· Dissent:
o Stevens and Marshall: If a policeman shoots and hits him then that's an
arrest, but if he misses then there’s no arrest?

Florida Article 1 § 12
· Reprise of fourth amendment
· 1982: passed law/conformity amendment
o Courts of Florida have to interpret this particular section in conformity
with the US Supreme Court’s interpretation of the 4th amendment
· Could have just cut out the article of the constitution
· The effect of the amendment means that the Article can never be
applied
· Hodari D is then the law of Florida
· This is only at the constitutional level
· Florida retains the power to apply Florida Statutes which could provide
greater levels of protection (subconstitutional level)
· In state practice, arrests are made in the absence of warrant usually
B. Warrantless arrest

Fla. Stat. § 901.15

· When arrest in the absence of warrant is lawful
· Only care about sections 1, 2, 3, and 5
· 1, 2, and 3 codify distinctions in law of arrest between felonies and
misdemeanors
o Felonies are crimes punishable by more than 1 year in prison

§ Police can arrest you based on probable cause if you committed or are

committing a felony (without a warrant)

o Misdemeanors are crimes where you can get up to one year in a county
jail

§ To be arrested for misdemeanors, it must occur in the officers presence

(without a warrant)
C. “Stop and Frisk” (a/k/a Terry Stops)

Terry v. Ohio
· Facts:
o In shopping area and two men are standing in front of store and look in
and walk up and down street and repeat
o Police officer is watching and he gets suspicious
o He walks up to them and asks to account for their conduct
o He didn’t like their answer so he grabbed Terry and patted him down
and he feels a handgun
o He reaches in and takes the gun
· Issue:
o Admissibility of the gun based on search without a warrant and without
probable cause?
· Rule:
o Supreme court creates an intermediate standard lower than probable
cause but higher than nothing
§ Standard of reasonable suspicion was created retroactively

§ It needs to be articulable

o The court creates a two step process

§ Can briefly detain the suspect if there is articulable reasonable suspicion

§ The reasonable suspicion must extend to the notion that crime is afoot

and that the suspect is armed and dangerous and then the officer can frisk
· Basis of the frisk is the safety of the officer and others in the area
· Dissent:
o Douglas: Says that he cannot give an officer a warrant based on
reasonable suspicion but the court is saying that in the street an officer can
do whatever he wants when he can’t get a warrant

Fla. Stat. § 901.151

· Enacted in the wake of Terry
· Very faithful codification of Terry v. Ohio
· Paragraph 2, 3 and 4: this is the stop prong of stop and frisk
o Very limited detention
o Has to be brief in time and limited in scope
· Paragraph 5: this is the frisk prong
o Mistake: says probable cause
o The court didn’t use reasonable suspicion so the Florida legislature
didn’t say it
o Every time it comes to court they say they know they meant reasonable
suspicion
· Paragraph 6: statutory rule of evidentiary exclusion
o If supreme court throws out exclusionary rule, then at the constitutional
level Florida would have no provision
o But supreme court can do nothing about the statute
o Florida would retain its exclusionary rule
o Standing to move to suppress under 6: anyone

§ Rule of automatic standing

§ Very rare

Illinois v. Wardlow
· Facts:
o Wardlow is standing on street corner and sees police caravan
o Wardlow runs and he had an opaque paper bag
o They chase and catch him and stop and frisk and in the paper bag there
is something that he should not have had
o Their basis for chasing was because they were in a high crime area and
he ran away
· Issue:
o Were the officers justified in suspecting defendant because of the
combo of the high crime area and unprovoked flight?
· Rule:
o They adopt the position that reasonable suspicion has to be practical
o Did not want to give a hard and fast answer
o Question of fact on a case by case basis
o Basically they said that what they did was fine

C.E.L. v. State
· Facts:
o Juvenile that lives in the Tampa area (high crime area)
o Police come and he runs
o They yell at him to stop and he does not stop
o They chase him and they catch him and chase him and find nothing
o They arrest him for resisting an officer without violence

§ Florida statutory crime that requires you disobey a police officers lawful

command
· Issue:
o What’s the probable cause basis for the arrest?
· Rule:
o Florida court is obliged to interpret search and seizure as per the
Supreme Court at the constitutional level
o Majority comes close to saying that in Wardlow says that A+B=C
§ Supreme Court did not say that – it did not adopt any position

o Pariente:

§ High crime area – if officer is saying this then its his opinion

· If he says he knows because of his training and experience then he is an

expert
· You can voir dire him then
D. Knock and Announce

Fla. Stat. § 901.19

 if police have warrant, they must knock and announce purpose and
authority.
Fla. Stat. § 933.09
 basically same as above

-Conformity: we interpret the 4th amendment in conformity with the USSC

 Hudson: scalia found that a failure to knock and announce did not
trigger the exclusionary rule. Then Cable happened.

State v. Cable
 police had warrant but failed to knock and announce. They said that
this matter was sub-constitutional law, not constitutional law. so
not bound by the conformity clause.
o we’re going to continue to use the exclusionary rule for failure
to knock and announce
o dissent: said that if you think this is the florida court
interpreting florida statute, then the legislature can make a
law to stop using the exclusionary rule

E. Hot Pursuit

Porter:
 crime in Pompano Beach
 police get bolo, one sees the car and follows it without sirens/lights
  car pulls off highway onto random road, cops then stop the car
o its not hot pursuit, the cops weren’t present at the scene of
the crime
 court says 595 is one giant road, who cares if you reach the county
limit
 1. police must act without unnecessary delay
o they don’t have to be there at the minute the crime was
committed
 2. Pursuit must be continuous and uninterrupted
 3. close temporal relationship between
o commission of crime, commencement of pursuit,
apprehension of suspects

We do a lot less hot pursuit litigation in recent years b/c counties contract
together

901.02: arrest made via warrant. Unhelpful statute

 901.01:

3.121: Arrest Warrant

 a(2):

How much $ to arrest someone? $1200-1500

 Rule 3.125: Notice to Appear
o Certain people that get arrested for certain conduct and it
doesn’t pay to go through the whole arrest procedure

3.130: First appearance

 Entitled to be taken to judge within 24 hours of arrest

First Appearance = “5 C’s”

 Charge: judge must say the D’s charge
 Counsel: if D doesn’t have lawyer, PD is appointed
  Communicate: D must be informed that he has a right to
communicate with friends and family.
 Close his mouth (D has right to not say anything)
 Conditions (of pretrial release)

-Judge reads the arrest form and determines if there was PC for the arrest.
 if the judge thinks there was no PC, must release D.
o Grigland v. Ryan: judges continue to get this wrong; the
judge finds no PC and releases on own recognizance. D can
get fucked for getting arrested while out on bail. Rather, he
should be free and just have to deal with the new arrest like
anyone else.

21 Days = still in jail without formal charges being fired, D requests

adversary preliminary hearing
 particularized finding of PC.
 3.13b: this includes witnesses, cross, etc.
 if judge finds there was PC, D goes back to jail. If no PC, released
outright.
o state attorney can still file charges, this is only about whether
we can hold D in jail still.

Indictment, Information, Arraignment

Indictment: grand jury was originally implemented to stop a King from using
the prosecution to prosecute his enemies
 summoned like a jury
 Florida constitution: Capital crimes must utilize indictments
 they used to be very secretive, no judge present.
o 905.17: lawyer can go to grand jury room with defendant
 (2) The attorney for the witness shall not be permitted
to address the grand jurors, raise objections, make
arguments, or otherwise disrupt proceedings before the
grand jury.
  That is precisely what lawyers do…

Information: prosecutor’s discretion

 2704: one-man grand jury power. Power so vast it’s not found
anywhere else in the American system.
o subpoena: doesn’t need any approval to make people come in
and testify

What limits exist? It’s very front loaded.

 Because it’s so vast, it’s non-delegable. McCoy: power has to be
used by the ASA
 We should put a little speed bump in the road before ASA gets
intensely intimate/confidential information like hospital records.
o Fla. Stat. §§ 395.3025(4)(d) and 456.057(7)(a)3
o must give notice to D & more.
 ASA can’t do it just to annoy or irritate D, must show
good faith part of investigation.

Farrall: blood taken from DUI scene and sent to hospital

 did ASA have to do the whole thing and send notice?
 no, they apply for a search warrant to go and get the blood. There’s
no notice required now.
 court says that the statute isn’t the only way the state can get the
medical information. The state had to show PC to get the search
warrant.
 There was no NOTICE and no HEARING. that’s the basis of due
process, the adversarial system. The state got away with getting
around the system.

Rattray:
 Dr. was a drug dealer and you would give him some money for a
ton of scripts.
 Cops get a search warrant, get the patient files from his office,
don’t read them, write letters to all the patients.
  Told the patients if you want a hearing, come ask for it, otherwise
we’re looking at your records.
 The custodian of records is Rattray, if they send him a subpoena,
he’ll destroy the records. The privacy interests belong to the
patients, which differs from Farrall.

914.04
 Federal system: whole big procedure to give someone -
 Florida: government subpoenas carry self effectuating immunity.
o Transactional immunity, colloquially known as "blanket" or
"total" immunity, completely protects the witness from
future prosecution for crimes related to his or her testimony.
 prior to 1970, immunity meant “transactional immunity”
o beginning in Nixon era, federal gov was critical of
transactional immunity. They said it’s a BS doctrine b/c
someone can plead the 5th and that’s fine, we’ll still prosecute
him. If someone is subpoenaed, they should get protection
that is as good as the 5th amendment, but not more powerful.
Transactional immunity is dead now.
 Use Immunity: the statement that the person made can’t be
used against him. Can still prosecute the person but with
other evidence.
 Derivative-Use Immunity: can’t use evidence that is learned of from
immunized statement.
o if an independent source also tells government about
evidence without any knowledge deriving from immunized
testimony. The court can grant a Castigar hearing to make
this determination.

 Transactional Immunity: although gone in the 70’s, the stand-

your-ground law provides transactional immunity
o 3.190c(3): pretrial motion for stand your ground transactional
immunity. We’ll study this later.

Arraignment:
  used to be a big deal because
o 1. people couldn’t read, this was the first time you knew the
charges brought against you
o 2. say your plea
 Now it’s a formality, everyone can read and everyone has a lawyer.

Public Defenders say at arraignment:

 Waive Reading:
 Plead Not Guilty:
 Demand Trial by Jury: don’t really have to demand this
 Notice Participation in Discovery:
 Time for Motions:

When is the arraignment?

 we know you have to charge someone within 21 days of
detainment.
 3.134: on the 30th day if prosecutor can ask to give 3 more days, if
prosecutor has good cause, can delay til 40th. No in between.
o if limit expires, release on recognizance.
o 3.134 is concerned with the fact, not the price, of liberty.

Pleas: Guilty, Not Guilty, No Contest

 USSC said, if D makes the voluntary and intelligent choice to take a
plea, he can make that decision. He doesn’t need to swear that he’s
guilty. Thus, Alford plea.
 You need leave of court to plead no contest. You do not need leave
of court for an Alford Plea. (leave of court = judge’s permission)

Santoni: can prosecutor file a placeholder 2nd degree charge before he’s able
to get a grand jury?
 Judge was allowed to deny the guilty plea

Plea Bargaining:
  A circuit court judge can only do 3-4 dozen trials per year. But he
gets thousands of cases in his courtroom.
 contract negotiation in criminal justice negotiation
 3.171:
 Judges used to order prosecutors to offer certain pleas and defense
attorneys to take them. This is inconsistent with the conceptual
aspect of plea bargaining = contract negotiation
o constitutional problem as well. It’s for the executive to decide
what charges should be pursued
 State v. Warner: judge cannot himself volunteer his
involvement. At least one attorney must come forward
and ask for judge’s involvement in the negotiation.
 Judge cannot do anything that would have a
chilling affect on any constitutional right.
Particularly the fair trial right. Judge can’t
threaten defense to take a plea by saying he’ll
give a harsh punishment if convicted at trial.
 Wilson v. State: was is judicial vindictiveness? Was D
being punished for taking his case to trial and refusing
the plea? Was judge sending a message to potential
defendants?
 Court gave 4 factors
 1. whether the trial judge initiated his
involvement (in contrast with the warner
rule)
 2. Did judge do or say anything that
suggest he departed from his role as a
neutral magistrate? Essentially hinting
 3. Disparity from the plea offer vs. resulting
sentence
 4. Lack of any facts on the record that
explain the reason for the increased
sentence. Most judges can point to
something that happened during the trial.

Change of plea colloquy

  judge has to explain what the defendant is doing when he says he
wants to plead guilty
 3.172:
3 essential categories
 1. Original constitutional core from Boykin v. Alabama. Need to
make sure D knows what he’s doing. 3.172(c) 1-7.
 2. Florida Add-ons: we have added some over the years in response
to people claiming they didn’t know the real effects of pleading
guilty. “Nobody told me I would be deported!”
o Pedia v. Kentucky: applied paragraph 8 to every state!
DEPORTATION
o 3.172(d): OJ case caused DNA identification evidence to
explode into national understanding. Lead to innocence
project. Lead to the inclusion of this in the colloquy. Asked to
lawyers, not defendant. Doesn’t matter what the lawyers say.
 3. Things that should be part of plea colloquy, but aren’t yet. These
are things that defense attorneys need to tell their clients. “You’re
going to lose your right to vote, own guns, etc.”
o 3.171(c)(2)(B)

Change of heart:
 3.170(f): If there is good cause, or even at judge’s discretion, D is
allowed to take back plea. Resolution on merits is preferred.
o “The fact that a defendant may have entered a plea of guilty
or no contest and later withdrawn the plea may not be used
against the defendant in a trial of that cause.”
 (L): Sentencing changes everything. Now, we are concerned
with finality.
 A reader of these subjections would understand them to mean that
the D has time to reflect after pleading. But in real life, D’s get
sentenced right after they announce their guilty plea.

Nothing said can ever be used from plea bargaining negotiations:

 Even if he pleads guilty then withdraws plea, his admission cannot
be used against him.
Bail, Pretrial Release, Pretrial Detention

Bail: used to be used to make sure D would show up at court when we need
him. Any attempt to add other purposes was resisted until about the 1970’s.
 Started using it to ensure that D doesn’t commit crimes during
pretrial release.
 Ellis v. Hunter: D accused of a minor crime; bail set at $5,000. D’s
ex father-in-law posted cash bail. Case ends with a plea.
Government says that the law changed, we can take court costs out
of cash bond.
o Bail also funds the criminal justice system
 28 USC 6050(I)(g): any transaction with more than $10,000 cash
needs to be reported.
o 4th purpose of bail, criminal investigation
o Printz: Anti-commandeering principle. Federal gov cannot
commandeer state officers. Seems like (G) violates this.
 903.011: dumb statute defining bail
 3.131(b)(1): non-exhaustive list of forms of pretrial release.
o (A)Release on own recognizance. No surety-ship involved
o (B)Unsecured appearance bond. Not used in Miami.
 essentially an I.O.U., D only pays if he doesn’t show up
at trial.
o (C) placement of …travel (not like the rest)
o Nebia conditions (“Source of Funds”): 2 reasons
 1. Court wont take tainted money.. yeah right
 2. We want D to have some skin in the game, make him
put forward legit money.
o Placement of Defendant

903.31: “The original appearance bond shall expire 36 months after such
bond has been posted for the release of the defendant from custody.”
 Foreman Case:
The right to pretrial release:
 no right in Federal System. But due process says that if bail is going
to be set, it must be fair.
Florida: Fla. Const. Art. I §14

Darnell’s Case, 5 knights that refused to pay King Charles:

 wanted to get out on bail, the jailer said the knights are being held
by special order of our king.
o suspended the writ of habeas corpus
 1641: As a reaction to this case, the Massachusetts colony passed a
law providing that unless charged with an offense punishable by
death, etc. (phrase from Fla. Const. Art. I §14)
o first American law!
o Back then, there was a huge distinction between direct and
circumstantial evidence.
 they called it an inference back then, but they
considered it a presumption.
 Translation:
o proof of guilt is evident : good direct evidence
o Presumption great: adequate circumstantial

Russell Florida Case: interpreted that old pretrial release language, but not
historical interpretation.
 Looked it up in the dictionary. Concluded that the standard is not
merely clear & convincing like the other states. It’s higher than
beyond a reasonable doubt.

Arthur Hearing: bail hearing when the D is charged with a crime punishable
by death or life in prison.
 happens soon after arrest, how does prosecutor come in with proof
before lab results or witnesses have been interviewed?
 hearsay and other evidence is admissible.
o still required to prove this by a higher burden than a
reasonable doubt. nuts.
 prosecutor will cross move for pretrial detention. Don’t have to go
into the ridiculously high standard from Russell.
Pretrial Detention:

Fla. Stat. § 907.041 (4)(c):

 “substantial probability,” not the other ridiculously high standard
 this isn’t concerned with risk of flight, its all about protecting the
public from letting a violent person out before his trial.

Williamson v. United States

 Jackson releases communists on bail. Great moment for American
justice system.

Bail Hearing
 appearance condition
 performance / collateral condition

Consequences for failing to show up:

 issue capias (bench warrant)
 forfeit of bond
 bail bondsman only contracted to produce D at trial

Consequences for breaching a performance / collateral condition:

 revocation of bond: throw D in jail

Surety’s Rights and Remedies:

Money paid to bail bondsman gets (unequally split up into 3 places)

 bondsman’s pocket
 BUF: build up fund. Piggy bank for Bondsmen.
 Insurance:
Bondsmen: while some D’s don’t show, huge majority show up. Risk built
into the business

Anything prosecution does that increases the surety’s (bondsman) risk will
result in a constructive discharge.

Grace period of 2 years with decreasing scale for which bondsman can seek
remission.
 After bondsman loses his money for D failing to show up, bondsman
can still recover some money for bringing in D.

3/1

VI. Discovery

-Good lawyers should always visit the scene of the crime.

 same time of day and same day of the week. lighting, traffic,
circumstances will be as close as possible to the time when crime
was allegedly committed.
 take client with you if possible
 investigator with camera and draw diagrams
 tape measure
 photometer: measures light

-Even if you don’t find anything to win the case, ask a couple of super
detailed questions on cross. Sends the message to witness that you know
the scene backwards and forwards. Witness will be more cooperative during
the cross.

Brady: material information that’s exculpatory to either guilt or sentencing,

must turn over to defense. Violation is violation of due process.
  Witness criminal history, witness mental history, deal details, prior
inconsistent ID,
 if prosecutor fails to provide something, D will win on appeal.
 Brady is included in 3.220

Ch. 119 Request:

 send me your guidelines under rachel’s law.

3220(b) prosecutor to turn over:

 Potential witnesses: EVERYONE, good or bad. (A & B & C witnesses)
 Witness statements:
 D’s statements:
 Codefendant statements: doesn’t have to be charged, if they could
be charged as codefendants, have to turn over.
 Grand jury testimony of D:
 Evidence or property of a tangible nature obtained from defendant:
 Confidential informant, the existence of:
 Electronic surveillance documents:
 Search and seizure-related documents:
 Expert reports or statements:
 Other tangible evidence the prosecution intends to offer at a trial or
hearing:
 DNA materials:

3220(d) Defense must turn over:

 list of names: only the good ones, not all of them. Only the ones D
wants to call.
 Witness statements from anyone on the list. Reason not to take a
statement from star witness.
 (B)iii: Kidder case. D has to turn over any scientific test done even
if it has an unfavorable result.
o D’s now ask to hear the results before getting a written
finding sheet.
3.220(c): should not be in this rule. Has nothing to do with discovery.
 after arrest, ongoing case.

Confidential informants in 3.220(b)

 general rule is nondisclosure.
 certain procedures to compel disclosure of confidential informant.
o Bailey case:
o in camera hearing: judge questions informant behind closed
doors.

914.28: Rachel’s law

Depositions: most state’s don’t allow them.

 no objections.
 civil cases there are objections b/c the transcripts can be admissible
in evidence. In criminal cases, doesn’t go into evidence.
o in civil cases, if you don’t object you run the risk of forfeiting
your objections.
 exception: objection on the ground of privilege –
witness may refuse to answer. If objection isn’t made
and witness answers, can never get that
objection/privilege back.
 if witness refuses to answer: examining attorney always says
“certify the question.” Dumb & doesn’t mean anything.
 Whose depo can you take?
o A (material witnesses): you can take their depo, just work out
logisitics with the other side
o B (everything in between A & C): must have court’s
permission to get deposition.
o C (nothing material to say, doesn’t know anything about the
case): cannot take his deposition
Richardson Hearing: 4 steps, jury leaves
 1. judge determines if there was a discovery violation. get record
from the clerk to make sure everything was included.
 2. Was it willful? Ask prosecutor how did it get left out?
 3. Is it material? or was it trivial?
 4. Is it prejudicial? procedural prejudice. In the sense that we’re in
a point in the trial that we can’t fix what happened. In terms of
what has come before this point.
o most important
-Tailor the most narrow possible remedy if there was a richardson hearing.

VII. Pretrial Motions: pleadings should be very readable to encourage the

judge to read them.

3.190(c): Time for Moving to Dismiss

 (4): no material disputed facts and the undisputed facts do not
establish a prima facie case of guilt
o This is a throwback to common law.
 similar to: purpose of trial is to resolve issues of fact. If
there are no issues of fact to dispute, no reason to have
trial. The judge decides issues of law. In civil procedure,
if there is only a legal issue, one side can move for
summary judgment for judge to decide it as a matter of
law.
o numbered paragraphs. one fact per paragraph?
o must be signed by a witness with personal knowledge that
the above facts are actually true. ocular witness. (not to the
best of his knowledge.)
 Defense never wants to make defendant write his
story because if the motion loses, it can be used
against him at trial.
-Prosecutor can concede to the motion, prosecutor can traverse, or
prosecutor can demurrer.
  Traverse: yes there are material disputes of fact, here is one!!
o prosecutor must also swear that the facts are true.
o once traverse shows that there is a dispute of fact, must
immediately deny the motion to dismiss. Material facts =
jury.
 Demurrer: memo of law in opposition.

914.13: Perry Mason moment, get witness taken away for perjury.
 not limited to criminal law.
 old statute that should be gone

3.190(e): after charges dropped, court may keep custody of D for a

reasonable period of time in order for new charges to be brought.
 reasonable time depends on the type of new charge

3.190(g): Motion to Suppress Evidence in Unlawful Search

 mimics the 4th amendment
 procedure is a little weird.
(3) Hearing: either party can have burden of proof:
 if search warrant, burden is on defendant
o makes sense b/c some judge has already approved search.
 if no warrant, burden of persuasion is on prosecution

3.190(h): Motion to Suppress a Confession or Admission Illegally Obtained

Motion for return of property:

 Scott: a facially sufficient motion for return of property alleges that
prop is movants personal property (nothing illegal), property is not
the fruit of criminal activity, property is not being held as evidence,
identifies the property.
 705.105: 60 days after case closes, it becomes police property
3.152(b)(2): Severance of Offenses and Defendants: Co defendants, one
confessed but neither wants to testify in trial. Hearsay and confrontation
clause objection to the non-confessing D. 3 solutions:
 Redact codefendant’s statement to only say “me and another
person did it.” It will still be obvious of who the other person is.
 Exclude the entire co defendant’s statement. No thanks.
 Mis-try the case, sever the defendants and do it again. Judges hate
to do it.

3.150(c): basically if both codefendants knowingly and intelligently waive,

they can both be represented by the same attorney. court must notify
defendants that they can get separate counsel.
 but you shouldn’t represent both parties as a lawyer. a conflict will
always arise.

Byrd Severance: get cases separated and other guy charged first. If hes
convicted or acquitted, that D can now testify about our D. (he has
knowledge or alibi that exculpates our D.)
 Byrd affidavit:
o 1. We need the testimony, he’s the only one that can tell the
exculpatory info
o 2. substance of testimony
o 3. exculpatory nature
o 4. other guy will testify only if he’s charged first and case
finishes
-Very hard to get this affidavit that’s satisfactory to both sides. It’s one step
below getting D to confess.

-Nobody can place a burden on D, not even a codefendant.

 nobody can make adverse comments on D’s choice not to put on
evidence or make a case.
o this is tough under 6th amendment b/c the codefendant’s
lawyer should be arguing everything on behalf of their client.
 o if you foresee this problem, should ask the judge to sever the
cases. If the problem occurs, mistrial and retry them.
(separately?)

Motion for change of venue:

 Fla. Const. Art. I §16(a): fair trial in the county where crime was
committed. Fla. Stat. § 910.03
o state or D can motion for change in venue.
 If you can’t get this in the county, Fla.R.Crim.P. 3.240, change
venue.
o requires avadavat from moving party AND 2 or more other
persons.
o certificate from movant’s counsel that the motion is made in
good faith
 Judge holds the motion and attempts a jury selection. If it appears
that we wont get an unbiased jury, the judge will grant the motion
 Fla. Stat. § 910.03(2):
o everyone has to travel with the case. Judge too. Judges hate
that. Federal judges might have to go to other states.
o (2): if a court orders a change, must move some place that’s
close demographically, not geographically. Hard if you’re in
Miami.

Motions v. Notices
 Motion prays for relief. Suppress evidence, change venue,
severance, etc. Can’t be an exhaustive list
o Can make a motion for pretty much anything as long as
there's a basis in law and fact.
 Notice is given because a rule or statute requires it as a condition
for you to be able to do something else.
o rules say that you must give notice to do certain things. Like
affirmative defenses. No prayer for relief.
 there is an exhaustive list for notices
  shouldn’t send a “notice of vacation,” send a
motion to refrain from setting trials or hearings in
my cases during these dates.

VIII. SPEEDY TRIAL

Statute of Limitations:
 Fla. Stat. § 775.15 (1) & (2): used to be exhaustive list. DNA
changed that.
 Example: someone leaves a drop of blood at crime scene 25 years
ago.
o (15) & (16): the statute of limitations reopens when DNA
evidence connects someone to the crime for a year. In (16),
statute of limitations never die?
3.191:
 Misdemeanor clock: 90 days
 Felony clock: 175 days
o everything else is the same.
-This time starts at the time of arrest
-Must file notice of expiration. (NOE). It will have expired unless 1/3
conditions are met. 3.191(j)
 1. Court order to extend time that hasn’t expired.
 2. defense continuance?
 3. Defense was not continuously available for trial

Speedy trial on demand has nothing to do when D was arrested.

 Speedy trial on demand can be created as many times as you want

-Speedy trial on demand: set more than 5, no more than 45?

-If speedy expires, there's a 5 / 10 day period

 hearing to determine if clock ran within 5 days. If it did, 10 days to
start trial.
o If this doesn’t happen through no fault of his, case will be
dismissed. However, what does it mean to “commence trial?”
  if you swear in a jury, this counts. Can swear in jury
then tell them to come back in 6 months. We want
cases to be determined on the merits as much as
possible and avoid discharges due to speedy violations
Statutory speedy trial vs. discovery: can make someone take a defense
continuance if prosecution hasn’t given you all of the discovery they owe
you. Doesn’t conflict with doctrine of unconstitutional conditions b/c it
only applies to Florida statutory speedy trial…?
 statutory right and to speedy trial and discovery, not constitutional
right
 defense can’t get a prosecution charged continuance even though
prosecution hasn’t turned over discovery obligations

When can defense get a prosecution charged continuance? Not often.

 factors: prejudice? time close to trial? How big is the discovery
violation? Will defense need a lot of time to make use of this
evidence when they receive it? Did the defense in any way
contribute to the tardiness of discovery? Is defendant in custody?

918.015 & 960.0015: give prosecution a right to speedy trial

 terrible b/c what’s prosecution’s remedy if defense violates speedy
trial?

IX. Jury Selection: most important part of trial, jury instructions are 2nd
 we don’t actually “select” a jury, we get to unselect some from the
venire.
 different from every other phase of trial because it has more than
one function.
o 1. Voir dire (vwore deer): to ID the jury members that will be
most and least likely to return a verdict in our favor, to earn
their respect, to dispose them favorably to us,
o 2. Challenges/ Strikes: unselect the people that will be least
likely to rule in our favor
Never pick a jury alone
 other person, preferably non-lawyer sitting at counsel table helping
you by taking notes
 try to memorize jurors names
o if you cant memorize everyone’s name, memorize a few in
random places so it looks like you know everyone’s name
 alternate between asking questions of entire venire and individual
people
 Never question them in the order they’re seated in. 2 or 3 is ok.
 Don’t fear the bad answer. Better to hear it now then to read it in
the verdict.
 if someone is really good for you, he’ll probably be stricken by the
other side. But get him to talk about his position to get the rest of
the jury thinking like him.
 supposed to be about questions, but you can have one or two
sentences at first. your theme or phrase or idea.

Once both sides have finished, exercise of strikes

 strike for cause: “I’m not sure I can be impartial”
o unlimited amount of cause challenges
o can’t “rehabilitate” jurors. After he gives his answer that’s it.
Only exception is in death penalty cases: witherspoon
excludables. (people that say they could never impose the
death penalty. Defense attorneys are obliged to rehabilitate
those jurors.)
 Peremptory Challenges (10 (death or life), 6 (felony), or 3
(misdemeanors)): used to be used on racist basis. Can’t do that
anymore. Any reason aside from strict scrutiny classes. Remedy if
you think opposing counsel is violating rule:
o 1. (a) Object
o 1. (b) Category
o 1. (c) Remedy
o 2. Provide a neutral reason as to the category identified by
the objecting attorney
o 3. Judge decides if the reason is non-pretextual. Basically is
the objecting attorney lying about his reason from (2).
 o (a) and (c) are repetitive. No other evidence rule makes you
say this shit.
o (b) category is dumb too because everyone fits into one
category or another.

X. Proof and Argument

A. Invoking the rule of witness sequestration

 witness’s testimony will be contaminated by hearing other
testimony. Can be invoked by other side
 Does not apply to Defendant
o Fla. Stat. § 90.616
o Prosecutor can argue in closing that jury shouldn’t believe
defendant’s testimony because he wasn’t sequestered
 Portuondo

B. The prosecution’s case in chief

 1. Requirement of corpus delicti (goes back way before Miranda):
requires evidence independent of the confession. otherwise
confession is inadmissible
o trying to protect against false confessions.
o conviction should not be based on confessions alone

-FRE 404(b): uncharged crimes. comes in to show M.O. or others.

- 92.565
 if prosecutor can prove corpus, you must do so (sex cases) another
rule for money laundering cases. Judge decides if its trust worthy?

-If judge makes determination that confession is ok, he can let it in.

2. The requirement of venue

90.105: When the witness ID’s the defendant “your honor, may the record
reflect that the witness has identified the defendant, Spencer Hennings.”

3. The requirement of identification, and the admissibility of expert evidence

as to it.
 Jones:

4. Confessions: when can you question defendant on his silence?

 post arrest – pre Miranda: federal court you may, in Florida, you
may not.

D. Motion for judgment of acquittal: if prosecution has failed to assert a

prima facie case, for each element. (taking evidence in light most favorable
to prosecution)
 made when prosecution closes case and after defense finishes.

E. The defense case

 4 decisions made by defendant: whether to testify, plea, jury trial,
appeal.
 Defendant direct examination: usually starts with biography.
o bad. this is when the jurors are most attentive. get defendant
to say he’s not guilty.

Circumstantial Evidence – common law circumstantial evidence rule

 exclude every reasonable hypothesis of innocence

Closing Argument & Rebuttal:

 can’t express your personal opinion during. Can express the same
thoughts with reference to the evidence.
  Golden Rule: can’t ask jury to put themselves in the place of
someone like victim, defendant, etc.
 Name calling:
 Can’t really reference punishment or sentencing
o exception is death penalty case. even in jury selection need to
make sure we pick a jury that is able to impose the death
penalty appropriately

XI. Jury Deliberation, Verdict, and Judgment

What do we send back with the jury?

 3.400: a3: we don’t send drugs or weapons back there

Generally can’t inquire into the verdict. Impropriety.

 exceptions:
o 3/6/17: Pena Rodriguez: if we learned that a jury decided a
case based on race or discrimination, that is deemed
extraneous. Even though its technically not extraneous.

-If an inquiry is conducted and found impropriety

 3.575:
 Lawyer’s responsibility to bring it to court’s attention. Court takes
the lead in investigating.
 judge can set aside a conviction not acquittal
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milt.hirsch.@gmail.com
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