West Palm Beach Criminal Lawyer Blog : Ronald Chapman: West Palm Beach Criminal Lawyer | Florida Criminal Attorney: DUI, Assault & Battery, Felonies | Criminal Law Firm

The Fall 2007 edition of the Florida Defender, a publication of the Florida Association of Criminal Defense Lawyers, contains an article entitled "False Allegations of Sexual Assault:  Why Do People Lie?" 

In that article, the authors make the insightful observation that "[c]ases of self-inflicted injury are particularly insidious because, except in suicide attempts, law enforcement officers are not accustomed to the phenomenon, and tend to presume the injuries are caused by others.  More important, persuading jurors that an apparent victim is capable of such bizarre behavior is difficult."

A few years ago, I represented a man whose wife claimed that he had attacked her with a box cutter outside the courthouse.  The police had taken the woman to their department where they photographed her injuries which consisted of some parallel cuts on one of her wrists. 

My client adamantly denied his wife's accusation, and there was reason to believe he was telling the truth.  His wife had a documented history of mental-health problems, and she and my client were currently going through a divorce.

I sent the photographs of the wife's injuries to a forensic pathologist who immediately concluded that they were self-inflicted.  When I told this to the prosecutor on the case (and to his boss), both dismissed the expert's conclusion.  The case proceeded to trial.

At trial the jury (aided by the forensic pathologist's testimony) concluded that my client was not guilty of any wrongdoing.  After the trial, several of the jurors asked me why the case had not been dismissed by the prosecutor since the woman's injuries were clearly self-inflicted. 

I have since wondered why experienced prosecutors could not see what was so obvious to those jurors who had no training in the law.

• Print
• Comments (1)
• Trackbacks
• Share Link

People frequently call my office asking whether they can get their criminal record sealed.  One of the first questions I ask them is whether they have ever been adjudicated guilty of any criminal offense (as opposed to adjudication having been withheld), even for something like reckless driving or DUI.  Many do not know the answer to this question. 

The reason why this is so important is because Florida law does not permit someone to have her criminal record sealed if she has ever been adjudicated guilty of a criminal offense, even for traffic offenses such as DUI or reckless driving.  See Florida statute section 943.059.

So, for example, if someone is trying to get her record for aggravated battery sealed but she was previously adjudicated guilty of reckless driving, then she is not eligible for a sealing.  In fact, the Florida Department of Law Enforcement website states that "[c]ertain driving violations are classified as criminal, such as DUI, reckless driving, and (with some exceptions) driving while license is suspended/canceled/revoked."

• Print
• Comments (246)
• Trackbacks
• Share Link

When the police search a car and find drugs such as marijuana or cocaine, the person located closest to the drugs is often arrested even though there were other people located in the automobile just before the car was searched.  In that situation, the person who was arrested may well have a good argument that he is not guilty of possessing the narcotics if the prosecutor is unable to prove that he was in "constructive possession" of the drugs.

In order to prove that someone is in constructive possession of narcotics, a prosecutor in Florida must show that the accused individual:

1.  Had dominion and control over the drugs;

2.  Knew of its presence;

3.  Had the ability to maintain control over the narcotics; and

4.  Had knowledge of its illicit nature.

When drugs are found in a car containing more than one person, a jury is not permitted to simply infer that the accused individual knew about the presence of the narcotics nor is it permitted to infer that he had the ability to maintain control over the drugs.  Instead, the prosecution is required to present independent evidence that the individual knew about the presence of the narcotics and that he had the ability to maintain control over them.  Such evidence might consist of statements made by the accused to the police or evidence that that individual's DNA or fingerprints were located on the drugs.  But unless such evidence is presented at trial, the accused individual should be found not guilty.

• Print
• Comments (2)
• Trackbacks
• Share Link

I frequently represent people who have been charged with committing traffic crimes that involved an accident (for example, DUI manslaughter or leaving the scene of an accident).  Often, the client's auto insurance company wants to take a tape-recorded statement regarding the details of the accident while the criminal case is still pending. 

Whenever this situation arises, I ask the insurance adjuster to wait until after the client's criminal case is concluded before taking the taped statement because I do not want the State Attorney's Office to subpoena the statement and then use it against my client at trial.  The adjusters whom I have dealt with always agree to this request because they are working on behalf of the client as am I.

In a 2007 Florida case called Reynolds v. State of Florida, a person who was being charged with a crime gave a statement to his insurance company while his criminal case was still pending.  When the prosecutor learned of this statement, he sent a subpoena to the insurance company demanding a copy of the statement.  The insurance company refused to comply with the demand based, in part, on the attorney-client privilege.

A Florida appeals court ultimately agreed with the insurance company stating that because the individual's statement did indeed fall within the attorney-client privilege, the insurance company was not required to provide it to the prosecutor.

Although the Reynolds case protects statements that are made by someone to her own insurance company because of the attorney-client privilege, it would seem to provide no protection at all to statements made by an individual to the other  party's insurance company. 

That being the case, I think the safest course of action is to have a client wait until after her criminal case is completely finished before giving a statement either to her own insurance company or to the opposing party's insurance company.

• Print
• Comments
• Trackbacks
• Share Link

On December 8, 2007, I posted a blog entitled "Police Interrogations Should Always Be Tape Recorded."  Around that same time, an article appeared in the "Florida Defender" (a publication of the Florida Association of Criminal Defense Lawyers (FACDL)) which stated that FACDL had been trying for several years to get the Florida legislature to pass a law requiring the mandatory recording of police interrogations.  Finally, in 2006, FACDL's bill was calendared for hearing.  However, it was subsequently withdrawn from the calendar when more than twenty Florida sheriffs showed up in Tallahassee to speak against the bill.

In arguing for the mandatory recording of police interrogations, the author of the article (A. Russell Smith), concluded by stating:

"The FBI recommends that local law enforcement agencies record all felony interrogations.  More than 5,000 state and local jurisdictions now require felony interrogations to be recorded.  As best we can determine, no jurisdiction that has adopted a compulsory recording policy has ever rescinded that policy or abandoned the practice.  Sheriffs, police chiefs, prosecutors and judges in jurisdictions where recording is required uniformly praise it.  It is time for Florida to adopt the practice."

• Print
• Comments (1)
• Trackbacks
• Share Link

Entrapment occurs when the police, or someone working for the police, cause a person to commit a crime using methods that create a substantial risk that the crime was committed by someone who was not ready to commit such a crime but for the improper methods employed by the police.

In order to better understand the concept of entrapment, it is helpful to look at some actual cases in which Florida courts have ruled that the person charged with a crime was entrapped by the police.

In one such case, an informant promised the accused individual that she would become romantically involved with him if he helped her to get drugs, the informant told the accused that she needed the drugs to help cope with cancer, and the accused had no criminal history.

In another case, entrapment was found where the police created videos that contained child pornography, and the accused had never previously been involved in any known criminal activity.

In two other cases, entrapment was found where an informant entered into an agreement with the police in which the informant helped set up drug deals in exchange for a reduced sentence.

If you have been charged with a crime in Florida and the facts in your case are similar to the facts in the cases just mentioned, you may have an argument that you were entrapped by the police and are, therefore, not guilty.

• Print
• Comments (1)
• Trackbacks
• Share Link

The answer is yes, the police are allowed to lie to you to get you to confess.  The law in Florida is that the use of tricks or factual misstatements by the police do not by themselves make a confession involuntary. 

For instance, in one Florida Supreme Court case called Burch versus State of Florida, an individual accused of murder was questioned by the police for more than five hours.  During those several hours, the police presented false evidence to Mr. Burch in order to get him to confess.  He was also given a false polygraph test and then told that he had failed that test.  Eventually Burch confessed to the murder. 

Burch later tried to get his confession thrown out by arguing that the tricks used by the police were illegal and that such tricks caused him to confess involuntarily.

In rejecting Burch's argument, the Florida Supreme Court pointed out that Burch was fully advised of his Miranda rights, he never asked to leave the sheriff's office, he never asked for a lawyer, he never asked the police to stop questioning him, and he was not physically coerced by the police.

It is because of cases like this that I almost always advise people not to speak with the police but to instead have their lawyer do their talking for them.

• Print
• Comments
• Trackbacks
• Share Link