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ARREST 3

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

PROBABLE CAUSE HEARINGS AND ADVERSARY PRELIMINARY HEARINGS 9


THE CHARGING DOCUMENT 9

INDICTMENT, INFORMATION, AND ARRAIGNMENT 10


A GRAND JURY 10
THE STATE ATTORNEY AS “ONE-MAN GRAND JURY” 10
ARRAIGNMENT 12
PLEA BARGAINING 12
RECEIVING THE PLEA 13
WITHDRAWING THE PLEA 14
EVIDENTIARY USE OF PLEA AGREEMENTS OR NEGATIONS 14

BAIL, PRETRIAL RELEASE, AND PRETRIAL DETENTION 14


WHAT IS THE PURPOSE OF BAIL? 14
WHAT IS BAIL? 14
RIGHT OF PRETRIAL RELEASE 16
PRETRIAL DETENTION 17
THE BAIL HEARING 17
CONDITIONS OF BAIL: APPEARANCE CONDITIONS AND PERFORMANCE CONDITIONS 17
SURETY’S RIGHT AND REMEDIES 18
INDEMNIFICATION 18
THE “COMMON-LAW BAIL AGENT’S PRIVILEGE” AND THE SURETY’S RIGHT OF SURRENDER 18
SET-ASIDE OF THE FORFEITURE 18
REMISSION 18

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

PROOF AND ARGUMENT 32


INVOKING “THE RULE” 32
THE PROSECUTION’S CASE IN CHIEF 32
THE REQUIREMENT OF CORPUS DELICTI 32
THE REQUIREMENT OF VENUE 33
THE REQUIREMENT OF IDENTIFICATION AND THE ADMISSIBILITY OF EXPERT EVIDENCE AS TO IT. 33
CONFESSIONS 33
MOTION FOR JUDGMENT OF ACQUITTAL 34
THE DEFENSE CASE 34
CLOSING ARGUMENT 35

JURY DELIBERATION, VERDICT, AND JUDGMENT 36


JURY DELIBERATIONS 36
RENDITION; REQUIREMENT OF UNANIMITY; INCONSISTENT VERDICTS 37
INQUIRY INTO THE VERDICT 37
JUDGMENT 37
TEST INFO
Don’t begin sentence with however
Bluebook citations
First thing defense attorney says is “do you have any money”
Judge is also called  conservator of the peace

Where is the defendant?


Judge traffic was very heavy on the 836 today, pass for a while
Judge the line at security downstairs is very long today, pass for a while
Judge “have you had recent contact?” “define recent”  not available.

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

In 1920 the U.S. created prohibition


 Searches and Seizure cases skyrocketed
 Statutes put into effect are still law today
Ashwander Rules  a case that represents a How To guide for how to do Constitutional
Litigation; says that we will not receive a case based on Constitutional grounds if it can
be resolved on Sub-constitutional grounds (under the statute).

FL § 933.19  we adopt the Carol case as statute law of Florida.


 No warrant for car because if you go to get a warrant they will be gone
o With respect to evanescent evidence (quickly go away) probable cause is
sufficient.
 Terry  articulable reasonable suspicious
 Michigan v. Wong
o Terry applies to cars

FL § 933.04  identical to the fourth amendment

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.

Terry Doctrine – Stop and Frisk


Terry v. Ohio
Facts:
 In Cleveland, an officer sees 2 men look into a store window, look up the street,
look down the street, and walk up and down. Then meet at the corner. Then
repeated.
 No probable cause, but cop is suspicious. And finally goes up to the two men and
asks them what they’re name is and what they’re doing.
 Cop grabs one guy, puts him against the wall and pats him down, and in one
pocket he feels a gun
Issue:
 Is this gun evidence
o No warrant, no probable cause.
Holding:
 STOP:
o J. Warren comes up with a new standard articulable reasonable suspicion a
person is armed and dangerous
 No gut reaction, it needs to be articulable
 The courts need to be able to review it. Objective things
police can point to and articulate so that the judge can
decide yay or nay
 The officer can make as top and demand that you make account for
yourself, but if based upon the encounter if the officer concludes
that crime is a foot that the person is armed and dangerous, he can
then move to the Frisk.
 FRISK:
o If based upon the encounter, the officer concludes crime is afoot, he may
frisk.
 May pat down
 Limited intrusion for the safety of those in the area (including but not limited to a
police officer). MUST BE reasonable suspicion a person is armed and dangerous.
 Siberian v. New York
Douglas Dissent:
 If an officer comes to a warrant for an arrest there must be probable cause, but if
an officer ignores a judge he can use less than probable cause.
o Giving the police office on the street more power than the judge.

Florida Legislature enacts 901.151 in regards to Terry v. Ohio


 (1) Called “Florida Stop and Frisk Law”
 (2)(3)(4) STOP
 (5) FRISK – Mistake probable cause instead of articulable reasonable suspicion –
courts ruled it as meaning reasonable suspicion
 (6) Violation of this is not admissible for any person in Florida. (automatic
standing to move to suppress).

What is articulable reasonable suspicion?


Illinois v. Wardlow
Facts:
 Wardlow is in a high-crime area
 Police see Wardlow holding a bag
 Wardlow runs and police chase and catch
 Defense says high- crime should not be considered because its socio-economic or
flight from cops because there could be many reasons
 Defense’s argument: you can’t consider those things because he lives there,
because he doesn't have any money to live anywhere else. You can't consider
headlong flight from the cops because it can be explained by many different
reasons (ex: prior bad experiences with cops, child support, who says he was even
running away from cops)
Issue:
 Is a high-crime area and flight enough for articulable reasonable suspicion?
Holding:
 Articulable reasonable suspicion is a practical guide in a heat of the moment for a
decision. In a given case its about facts and circumstances

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.

Knock and Announce


Police don’t want you to shoot them and they don’t want you to have to shoot you
933.98 f.s.
901.19 f.s.

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

Arrest pursuant to warrant or other process


Arrest Warrant
Fl. Crim. Pr. 3.121
 Issuance. An arrest warrant, when issued, shall:
o be in writing and in the name of the State of Florida;
o set forth substantially the nature of the offense;
o command that the person against whom the complaint was made be
arrested and brought before a judge;
o (4) specify the name of the person to be arrested or, if the name is un-
known to the judge, designate the person by any name or description by
which the person can be identified with reasonable certainty;
o (5) state the date when issued and the county where issued;
o (6) be signed by the judge with the title of the office; or, may be
electronically signed by the judge if the arrest warrant bears the affiant‘s
signature, or electronic signature, is supported by an oath or affirmation
administered by the judge, or other person authorized by law to administer
oaths, and, if submitted electronically, is submitted by reliable electronic
means; and
o (7) in all offenses bailable as of right be endorsed with the amount of bail
and the return date.
Fla. Stat §§ 901.01, 901.02
 901.01 Judicial officers have committing authority.—Each state judicial officer
is a conservator of the peace and has committing authority to issue warrants of
arrest, commit offenders to jail, and recognize them to appear to answer the
charge [let them out on bail]. He or she may require sureties of the peace when
the peace has been substantially threatened or disturbed [bound someone on a
peace bond].
 901.02 When warrant of arrest to be issued. —
o (1) A warrant may be issued for the arrest of the person complained
against if the trial court judge, from the examination of the complainant
and other witnesses, reasonably believes that the person complained
against has committed an offense within the trial court judge’s
jurisdiction. A warrant is issued at the time it is signed by the trial court
judge.
o (2) The court may issue a warrant for the defendant’s arrest when all of
the following circumstances apply:
o (a) A complaint has been filed charging the commission of a
misdemeanor only;
o (b) The summons issued to the defendant has been returned unserved;
and
o (c) The conditions of subsection (1) are met.
Copias, alias, and pluries

Just call it a bench warrant

1st bench warrant – Copias –refers to take


2nd bench warrant – Alias Copias – As we have on another occasion commanded
3rd bench warrant – Pluris Copias – As we have several times commanded

First Appearance
Fl. Crim. Pr. 3.125 – notice to appear

Fla. R. Crim. P. 3.130


 If someone is arrested, he is entitled to be taken in front of a judge within 24
hours
What happens at first appearance (5 C’s)
 Counsel (do you have counsel? Appoint Counsel if can’t afford)
 Charges (tell person what he is charged with)
 Communicate (person can communicate with friends/family)
 Close his mouth (right to remain silent)
 Conditions of pre-trial release (Can we let them out on bail, are there
reasonable conditions on pre-trial release etc.?)
Then the judge has to make a probable cause determination
 Judge reads A-form (arrest affidavit)
 Looking after the fact, assuming that this is correct does it make out probable
cause? If the answer is yes that is sufficient
o State attorney can still prosecute, but they will be let out if there is no
probable cause.

Probable Cause Hearings and Adversary Preliminary Hearings


The Charging Document
Person sits in jail until prosecutor charges formal charging document
Fla. R. Crim. P. 3.133
 If 21 days goes by and person is still in jail and prosecutor hasn’t filed a formal
charging document, the person is entitled to have an Adversary Preliminary
Hearing
o Prosecution hates this because they must show their case, and it can’t be
different than from trial because
 If judge finds probable cause – guy goes back to jail
 If judge finds no probable cause – the defendant shall be released
on his own recognizance (Should be he shall be released outright
according to new case)
Indictment, Information, and Arraignment
2 kinds of formal charges
 Indictment and prosecutors information
o Almost exactly alike. Only different because
 Technical language
 Path they follow to the courtroom.

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

The State Attorney as “One-Man Grand Jury”


Florida ASA’s are vested with power that exists no where else in the American system

§27.04 – Summoning and examining witnesses for state

The One-Man Grand Jury Power


The state attorney shall have summoned all witnesses required on behalf of the state; and he or she is
allowed the process of his or her court to summon witnesses from throughout the state to appear before the
state attorney in or out of term time at such convenient places in the state attorney’s judicial circuit and at
such convenient times as may be designated in the summons, to testify before him or her as to any violation
of the law upon which they may be interrogated, and he or she is empowered to administer oaths to all
witnesses summoned to testify by the process of his or her court or who may voluntarily appear before the
state attorney to testify as to any violation or violations of the law.
 Only Florida attorneys
 Limits on power
o Only able to deploy during the stages in which the grand jury exists (the
investigation, preparation and filing of charges).
 Franqui v. State
 Prosecutor issues a one man grand jury subpoena to old
trial lawyer, in connection with a post-conviction appeal
 Can’t do it after filing all the charges
o Non-delegable power
o Limitation on medical and hospital records
 Fla. Stat §§ 395. 3025(4)(d) & 456.057(7)(a)(3)
 Allowed but must give notice to the person whose records
they are.
o Person whose records they are is entitled to (very
little) due process. BECAUSE OF FARRALL
 Farrall v. State
 FBI agent driving on 95 through Broward (literally) on the
wrong side of the highway and there is a serious accident.
Police show up and initially make it out the people who
were injured were the ones driving on the wrong side. But
that ended up impossible. Blood was drawn from Farrall
and was sent to the hospital to detect BAC. Farrall hires
great lawyer and Broward SAO decides they can’t just
subpoena the records analyzing the blood (b/c of hospital
records) they have to give notice to Farrall with great
lawyer and then duke it out in court. INSTEAD, they go to
the judge with a search warrant application to seize the
hospital records. Defense lawyer learns of this and is
enraged. 4th district says it doesn’t say in statutes this is
the only way to get the records and you should count
yourself lucky because you have a higher standard of proof
than you are entitled to. To get a search warrant you need
probable cause, instead of a balancing test.
o However, you don’t get the adversary process with
a defense lawyer.
o Since Farrall case, nobody does it anymore;
everyone does a search warrant instead.
o In Farrall the target was Farrall, not the custodian of
the records (the hospital)
 State v. Rattray
 Dr. suspected of running a pill mill. Detectives get a search
warrant of his patient files and business records (he is both
the target and the custodian of the records). They take all
the patient files. BUT the privacy interest in this case is to
the patients of his. They tape the boxes closed and put them
in the corner. They write a letter to the clients. Nobody
complained and wanted an adversary hearing. It’s ok
because the state offered due process before they read his
files. (Easier case to decide than Farrall)
Difference between FL law and USA law in regards to subpoenas
 § 914.04
o Florida SA – Self-executing immunity (don't need to go in front of the
judge like in the federal system to give immunity for one man jury AND
trial).
o 3 types of immunity
 Transactional Immunity – prior to ~1970’s –– immune from ever
being prosecuted for anything you are being subpoenaed for.
(Doesn’t exist anymore except for one exception)
 Motions to dismiss – we will see the last vestige of
transactional immunity 3.190(c)(3) MOTIONS
 Use Immunity – cannot USE the statement against you, BUT can
then prosecute you for the statement by finding other evidence
against you.
 Derivative Immunity – cannot use statements or evidence that was
derived from the statement.
o Use and Derivative Immunity is used.
o Exception –
 If the witness who is subpoenas perjuries himself, the prosecutor
can use that against the witness.
 Cannot impeach a statement made after a different sworn
statement– use immunity.

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

Fla. R. Crim. P. 3.170

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 of No Contest v. Alferd guilty Plea


 Alferd – wants to take guilty plea but is not guilty --- plead guilty without
acknowledging guilt. IT IS STILL A GUILTY PLEA

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.

Receiving the Plea


3 Categories
Constitutionally compelling  same in any court
 3.172(C)
o What the judge says during plea
o (8)
 If you are not a US citizen and you take a plea you will be
deported
 So when pleading guilty we ask if they are a U.S. citizen
 Pedilla v. Kentucky
o Guy was convicted and entered into a plea and no
one told him he would be deported
 Used to be ONLY Florida but now its not!
Florida things we’ve added over years
 3.172(C)
o (9) – Jimmy Rice Act  if you are a sexual predator you will be civilly
committed and will be put away indefinitely (forever).
o (10) – If you plead to a DUI offense or a drug offense you lose your
drivers license
 3.172(d) Should be 3.172(C)(11) – [History] – OJ Simpson trial first trial of
interest where they used DNA evidence. Defense brought in 2 law professors
from Cardozo Law and giving DNA defense. OJ was acquitted and 2 law
professors are buried with letters saying person should have been acquitted with
DNA evidence. They looked for the best case and 4 make it through from Florida.
o Wilton Dedge – movie (after innocence)
o Now when pleading guilty they ask the prosecutor and the defense
attorney did they reviewed the DNA
o Should be taken out because there used to be a time limit but now there
isn’t so it doesn’t need to be spoken about during the plea, can be used
years after
Stuff that we should ask in plea colloquy but we don’t
 They don’t tell you, you lose your right to vote, right to own a firearm
o Because they are not rights that appear in the criminal justice system but
rights that appear elsewhere in the world
 Enhanced penalties for future crimes – State v. Fox
o Not supposed to commit more crimes
 775.13 – must notify within 48 hours you must go to sheriffs office and register as
a convicted felon – failure to register is a misdemeanor
 Cannot have federal funded benefits (student loans, housing loans)
o Williams v. Houston (11th Circ.)(2008)– county received money from
feds and if you made your house hurricane resistant they would loan your
money. Guy can’t sign up because he has a prior felony conviction.

------Cannot defend himself later in court ---------


 772.14 – Starr Tyme, Inc. v. Cohen
o Property type crime (stole something). If he pleads guilty in a criminal
case, the victim can go to court sue civilly and move for summary
judgment, the defendant cannot defend.
 775.089 (8)
o If part of your plea says I will pay restitution, the victim can sue and
defendant is estopped from defending.

Withdrawing the Plea


Evidentiary Use of Plea Agreements or Negations
 90.410
o No use can ever be made in the content of plea discussion, or plea bargain
– cannot be used as evidence

Bail, Pretrial Release, and Pretrial Detention


What is the Purpose of Bail?
Old reason – reasonable assurance defendant would appear for trial
Starting in the 1970’s – 903.046 – to protect the community from danger
 Also financing criminal justice system
26 USC 6050I(g) – Criminal Investigation
 Every clerk of a Federal or State criminal court who receives more than $10,000
in cash as bail for any individual charged with a specified criminal offense shall
make a return described in paragraph (2) (at such time as the Secretary may by
regulations prescribe) with respect to the receipt of such bail.
903.31 – return bond within 36 months (3 years)
 Can impose additional conditions/bond.

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

Right of Pretrial Release


“Proof of guilt is evident or the presumption great”
 No one knows what this means. The federal and state definitions are different.
 Federal: direct evidence of guilt is substantial or the inference from circumstalial
evidence is substantial. Even in a terrible case you are still entitled to bail unless
there is a considerable showing of guilt.

Common law  Proof = Direct evidence


Common law  Presumption/inference = circumstantial evidence
 Direct (gives rise to proof)– I see its raining
 Circumstantial (gives rise to inference) – this person walked in wet. It must be
raining
The direct evidence of guilt is substantial, and the inference of evidence is substantial.
You are always entitled to bail unless there is a considerable reason not to.
 Clear and convincing evidence to deny you you’re right to bail, even if you are
charged with a crime resulting in death or life in jail.

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.

The Bail Hearing

Conditions of Bail: appearance conditions and performance conditions


All conditions can be divided in 2 categories

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

Surety’s Right and Remedies


Indemnification

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.

Set-aside of the forfeiture

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

Federal Freedom Information Act – Florida has it’s own at §119


 Anyone should be able to oversee what other government workers involved are
doing
 Used by press or any Floridian

§ 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

Discovery Pursuant to Fla. R. Crim. P. 3.220

Prosecutions discovery obligations


To remember the prosecution’s discovery obligation under Rule 3.220(b), use the
following pneumonic device: “Please Write Down Carefully, Great Evidence Can
Escape Scrutiny Even On Discovery.” The bolded letters stand for:
 Potential witnesses, with addresses
 Witness statements

 Defendant’s statements
 Codefendant statements
 Grand jury testimony of defendant

 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
----------------------- Added
In Re: Amendments to Florida Rule of Criminal Procedure 3.220
 Must specifically identify any “informants” (but should have said jail house
snitches), what they will say, and more information

Rule 3.220(d)  Defense Obligation


 (i) Only must give witness list for the people they are calling. Must divide into 3
categories A,B,C
 (iii) Any tangible papers or obligations that the defendant intends to use in the
hearing or trial
 (ii) Reports or statements of experts made in connection with the
particular case, including results of physical or mental examinations and of
scientific tests, experiments, or comparisons; and
o Kidder – car accident. Draw blood send to lab and send to defense
counsel. Defense sends it to private lab and reports says she had a blood
alcohol level of 1.9. SAO says we should get that report. Defense says no
because we don’t plan on calling them as a witness.
 2nd district says they must give over files
Rule 3.220(c) – misplaced because 3.220 should be the reciprocal discovery rule
 (c) Is about orders to compel the defendant to do specific tasks TO CREATE
DISCOVERY. Ex. Fingerprints, appear in a lineup, etc.
 The law is, if the prosecutor moves to order, the judge must grant so long as there
is a connection.
o If they found fingerprints at the scene, order fingerprints.

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

How to compel prosecution to turn over informant. Baily v. state


 Asserting specificity stating the full defense saying it would violate defendants
right because he will not have his constitutional rights to a fair trial without it.
o Defendant will have to disclose a sworn statement to the facts. But this
would be entrapment because he is confessing to the crime.
o If it is sufficient the judge will bring the informant in and decide by a
balance to see if the defense’s full and fair defense or the informant’s
ability to get information. Roviera
o Prosecutor can then either disclose informant or drop the charges against
the defendant because the informant is too good.

914.28 – Rachel’s law


 Provides for accountability of police to the people to oversee informants.
 Subsections (4-6)
 Story  Rachel in school in Tallahassee gets arrested and is forced to be an
informant and eventually gets killed.

Depositions
Typically does not happen in a court room but in the State Attorney’s Office or
Defense attorney’s office.

Court reporter, witness, attorney are present.

Rules for depositions


 You can object, but the rule is the answer will be given objection or no.
o Only 1 objection the witness must not answer the question 
PRIVILEGE. You advise not to answer because once answer it is
waived.
o What happens if witness refuses to answer either saying he wont
answer or fuck you– your right is perfected by his non-answer – You
can afterwards seek judicial remedy to compel him to answer.
 Whose deposition can you take?
o A – witnesses (material to the case, ex. eye witness)
o B – witnesses (Not A or C)
o C- witness (has nothing to say, ex. Cop who was just there and does
nothing)
o B you need leave of court, A you can take without leave, C you can’t
take. You can take a deposition of someone who isn’t listed at all.

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

914.13 – Commitment for perjury.


 When a court [doesn’t specify which court so it could be any] of record has
reason to believe that a witness or party who has been legally sworn and
examined or has made an affidavit in a proceeding has committed perjury,
the court may immediately commit the person or take a recognizance with
sureties for the person’s appearance to answer the charge of perjury.
Witnesses who are present may be recognized to the proper court, and the
state attorney shall be given notice of the proceedings.

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.

Sworn motions to dismiss


3.190(c) – Worst written rule.
 Motions directed to the sufficiency of the charging document (moving to
dismiss)
o First sentence – doesn’t make sense how can you do it before.
o Third sentence – absurd how can you waive.
o Fourth sentence
 (3) Immunity – Read Wyche He wrote
 Denied stand your ground motion
 Stand your ground created real true immunity. Lets you
take the Castle doctrine out of the castle and let you
take the castle with you.
o Not a defense but immunity by moving to
dismiss.
o True immunity relates to status (Congressmen,
foreign diplomats), immune by virtue of who you
are, same as here immune because you stood
you’re ground.
 Prior to stand your ground 3.190(c)(3) was worthless
because nothing covered it. When stand your ground
was enacted (Wyche footnote quoting Holmes)
 (4) it is analogous to a civil motion for summary judgment, but
it must be pleaded exactly according to the rules, every slip is
fatal.
 It must begin by saying “defendant makes this his sworn
motion to dismiss on the grounds that there is no
material disputed facts and the undisputed facts to not
establish a prima facie case of [guilt against the
defendant (name of crime)].” then followed by a series
of numbered paragraphs. MUST PLEAD IN NUMBERED
PARAGRAPHS. One material averment of fact per
paragraph. Must be sworn to and even the language of
the oath is prescribed by saying the defendant has read
the facts and that they are true. Must also be sworn to
by a witness with first hand knowledge.
 A defendant is the affiant but it is not a requirement,
what is required is a witness that was there and can say
they saw and they know.
 Prosecutors have 3 choices after:
o Conceive the motion (motion is correct)
o Traverse the motion
 Traverse – prosecution response where
the prosecutor is saying there are
material disputed facts and here is at least
one of them. FACTS
 Defense said no disputed facts
light was green. Prosecution
writes traverse saying light was
red
o Demurrer the motion
 Demurrer - there are no material
disputed facts, but defendant is not
entitled to judgment as a matter of law.
LAW
 If traverse, it goes to trial because now there is a
materially disputed fact and only the trier of fact can
decide the disputed facts. IT IS AN END GAME.
 If demurrer is a memorandum of law in opposition,
Judge decides.
 Why they usually don't use defendant as the sworn
statement. Because when defendant swears everything
is true, and prosecutors show its not true it has the
potential for bad stuff.

Motions to suppress: physical and testimonial evidence


 Everyone has the burden of proof in a motion to suppress because there are
2 different things
o Burden of production/burden of going forward
 Who has to go and do something
o Burden of persuasion
 Who will lose if he doesn’t win
Rule 3.190(g)(3)
 It's the defendant’s motion, he must go and do something, and burden of
production is on the movant party (defense).
 Burden of persuasion: if the search was pursuant to warrant then the burden
of persuasion is one of the defendant, if absent a warrant then the burden is
on the prosecution.
 If the witness is associated with the adverse party, you can lead on direct.

Rule 3.190(h) motion to suppress a confession or Admission Illegally Obtained


 Miran v. burbine US Supreme Court Case – all police is obliged to tell
defendant is of rights, no need to tell him the lawyer is waiting for him
outside. In Florida (because of Halibuton v. State), the police need to tell the
defendant the attorney is outside. Failing to tell him that is to render the
waiver of right of counsel incomplete and ineffective.

Regarding Motions for return of Property


Scott v. State – a facially sufficient motion for return property
1. Alleges the property is the movant’s personal property
2. Alleges that the property was not the fruit of criminal activity
3. Alleges that the property was not held as evidence
4. Specifically identifies the property – is it part of 1? How can you allege the
property without identifying the property?

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).

Bruton problem. 3 solutions non is perfect


1. Have D1 not say D2 did it with me, says someone else and me did it.
a. PROBLEM. Inferential hearsay (never embraced by defendant)
2. Prosecution says my case is so powerful I don’t need this statement, I have
eyewitnesses, videotapes, fingerprints, DNA etc. won’t ask D1.
a. PROBLEM. You don’t want to give up a confession.
3. We need the statement in; lets retry the case, sever the defendants, and have
2 separate trials.
a. PROBLEM. Judge doesn't like it
b. D2 wants to be tried first, because D1’s statement won’t go in unless
he testifies and his lawyer doesn’t want it to go.

Motions of joinder or severance


3.150(c) Joint Representation
 2 defendants show up with the same lawyer and are informed of and
understand the consequences.
 NO!!
o There will be a conflict of interest and they will complain about you
and make bar complaints.
o Instead have one of the defendants go to another attorney.

Regarding severance to obtain exculpatory testimony of a codefendant


Byrd v. Wainwright
Followed by Taylor v. State
 Byrd affidavit/severance
o Severance of defense
o To obtain a severed trial based on a defendant's desire to offer a co-
defendant's potentially exculpatory testimony, the defendant must
show:
1. A bona fide need for the testimony,
2. The substance of the testimony,
3. Its exculpatory nature and effect, and
4. That the co-defendant will in fact testify if the cases are
severed.

Regarding the “DeLuna dilemma”


Compare Deluna v. US & Sublette v. State – no solution.
 In closing statements where there are 2 defendants. When the first (who
testified in trial about their innocence) in their closing states I am innocence
that's why I testified, the other defense attorney objects because their client
did not testify and does not want that backlash. Both are correct and the case
must be a mistrial and severed.

Motions to disqualify the trial judge


Motion for change of venue
Filed by the defense because the defendant cannot get a fair trial
 Disfavored by judge because the judge goes with the trial.
 How to file?
o Must be an affidavit by the movant (typically defendant) and 2 or
more other persons (doesn’t specify who).
 If you have a client with money you call the head of the
psychology to do a venue survey and pay $10,000
 Venue survey – survey of people asking if you knew all
this information would it be more guilty or less guilty,
how about this more guilty or less guilty. This is to
determine how bias the area is.
 If you don’t have money you have to look for people who come
into contact with Miamians on a regular basis to say I talk to
hundreds of people in Miami everyday and they all said they
would convict this type of person.
 What do you do with it once filed
o Nothing, hold it in advance and while picking a jury. And if during jury
selection and get people to be impartial, then you can adjudicate
motion by denying.

§ 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.

What is the difference between a motion and a notice?


 Motion – At the end of the motion you say what kind of relief you want.
o Change of venue, suppress evidence
 Notice – at various points in the statute and rules you are ordered to give
notice to certain things.
o Ex. Prosecutors are prosecuting D and want to bring in evidence on
uncharged harms and bad acts they must give notice of doing so.
 No prayer for relief because rule or statute tells you
consequences of the notice.
 Ex. § 90.404, 3.200, 3.201, 3.216
o The only notices that can be given must be a statute or rule provided
because otherwise we wouldn’t know what to do with it.
 Example of mixing up: Notice of vacation, no rule or statute covering notice
of vacation. What they should have filed a motion requesting trial, deposition,
or whatever they want to not be scheduled that weekend.

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.

The statutory right


3.191 
 Creates 3 clocks (like in Looney Tunes where you wake up and smash it and
then it comes back)
o First clock – Felony clock, created when D is arrested. Goes off in 175
days.
o Second clock – Misdemeanor clock, identical to felony clock in
everyway except it goes off in 90 days.
o Third clock – speedy trial on demand. Nothing to do with arrest.
 Can be filed at any time. Demand for speedy trial.
 Starts from the filing of demand for speedy trial. Goes off in 45
days.
 Once the 45-day comes you file a notice of expiration.
 Within 5 days hearing.
o Same hearing with one additional factor

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.

In a speedy trial on demand the one additional factor is


4. Demand defective

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.

Speedy trial rights for prosecution – POINTLESS!!!!


 918.015, 960.0015

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.

Jury selection involves two different unrelated functions:

Voir dire examination of the venire


Vrai Dire – Speak the truth but it was messed up and pronounced Voir Dire (to see
and to say).

Venire – Jury (meaning I will come)


 Questioning potential jurors
 Purpose is to make your case to the jury. Identify who you want to get rid of
because they will give a verdict you don’t want. But to also, earn the juries
respect and to educate the jurors about you and your client and your
outcome of choice.

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

Challenges for cause


Standard for excusing a juror for failure of competence  LOW  Reasonable doubt
he cannot follow the cause of challenge.

Not allowed to rehabilitate  pressure the Juror by asking questions in a forceful


manner to get a yes or no question to ensure the juror is impartial (wither spoon
excludable).
 Only allowed to rehabilitate in a capital case (death sentence) because if NO
they cannot serve on that case.

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.

Problem was in the application  no pretext; everyone knew it was applied in a


racist bigoted fashion.

Orta (he wrote) quotes how to pick jury instructions


 Also cited Tokyo Rose in Second World War traitor. Government struck down
anyone who was Asian descent.

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.

How many Challenges


Cause – unlimited if you can show

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.

Once the rule is invoked:


 Exceptions to the rule:
o Defendant cannot be excluded to wait outside
 Suppose the defendant takes the witness stand
 Portuando v. Agard – Prosecutors can, in closing
argument, point out that the defendant was able to sit
through the entire trial and all other witnesses. They
said its all true, he was there unlike everyone there,
o Lead detectives who know the case well
 In federal court if the lead detective should be present to help
present the case because he was handling it the entire time, it
is allowed.
 In Florida, the test is, “ESSENTIAL” to the presentation of the
case. They cannot present the case without him
o The victim (or their family) should be permitted to remain, unless it’s
prejudicial
 Usually the victim is because they are crying

The prosecution’s case in chief


The requirement of corpus delicti
Corpus delicti – the body of the wrong (offense)
 Elements of the Crime

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.

Provides Defendant cannot be convicted unless there exists evidence aliunde


(apart from/independent of) confession.
 Ex. Defendant charged with running a red light while texting. Even if
confessed they must offer independent evidence that defendant was driving
a car, blew a red light, and was texting.

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.

The requirement of venue


Venue is an element of every offense.
 At some point during prosecution’s case in chief he must ask if all the events
took place in this county.
 If venue is not asked and rests case – Defense removes justice of acquittal for
no venue, which is an element of every crime.
o Generally judges won’t do that – it was proved inferentially saying it
was on Flagler Street. Not good enough could be any street. To prove
venue inferentially it must be very specific.
 Ex. It happened at the Eifel tower it happened at the county of
Paris
o Prosecutor, may I reopen my case to prove venue
 Reason: for embarrassment and to not drop the case.

The requirement of identification and the admissibility of expert evidence as to it.


Can you point to the person who did this to you?

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.

Motion for judgment of acquittal


“The State Rests”
Tell the Jury to go to Jury room and defendant moves for judgment of acquittal.

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.

The Defense case


When the motion for judgment of acquittal is denied.

4 decisions that belong to the defendant and not the attorney


 Whether or not to testify
 Take a plea or not
 Waive jury
 Whether or not to take an appeal

How to begin direct examination:


 You understand you don’t have to testify?
 You understand that if you don’t the judge will tell the jury not to hold it
against him.
 Why do you want to testify
o Because I’m innocent
----OR----
 Do you know what the prosecutors accuse you of?
 Did you do it?
o Normally defense attorneys ask biographic questions saying its to
calm down defendant. But its garbage

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

What can you say? :


 Latitude for advocacy to show the facts they wish them to be for the
inferences and conclusions they want to show.
 Shared limitations
o Cannot abuse the opposing attorney, or as a prosecutor the defendant
 Real Examples  prosecutor refers to defendant as a madman
and violent animal. Attorneys refer to the other by saying the
other is trying to sell pink elephants. Refer to other attorney’s
argument at “bullshit”. Defense counsel would “make an
excellent armed robber”
o Prosecutor “claiming insanity is refusing to take ownership of your
actions”
 Reason conviction was reversed is because it's a law and the
legislature made the law
Golden rule argument in closing  No lawyer can argue that the jurors should put
themselves in the place of the victim or defendant. Not how would you feel if . . .
 Cannot point the gun at the jury
 References to punishment – neither lawyer can make an argument about
punishment. “Don’t convict this guy because bad things will happen in jail”
o One exception where you talk about punishment – capital punishment
(death sentence)
 Prosecutor can not want to make any reference to the defendant not
testifying.
o Can say he was able to listen to prior witness and was not subject to
sequestration.

Fla. R. Crim. P. 3.381

Fryer v. State

Jury Deliberation, Verdict, and Judgment


Jury Deliberations
Jury instructions of the law then sent to deliberate
3.400  Things they can take with them
 Copy of the charges and jury instructions
 Verdict form – of course they need to write down verdict
 All evidence
o Wrong – deposition transcripts don’t come in to evidence in criminal
except for impeachment purposes
o Wrong – everything else, you don’t send contraband or drugs, no
weapons.
o Sometimes they will request to see it, so they will be taken into the
courtroom and see the evidence like marijuana.

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.

Judge checks procedure


 Date it
 Sign it
 Make sure there is 1 charge per count

Judge gives it to the clerk to publish

Rendition; requirement of unanimity; inconsistent verdicts


After clerk reads the verdict, the judge instructs the clerk to pull the jury (not
mandatory but better practice) – tells the jury “you have hear the verdict, is this
your verdict, Juror 1 ___, Juror 2 ____.

Once a verdict is accepted, the clerk returns to the judge saying the jury has
succeeded their verdict and then discharged.

Inquiry into the verdict


The law has ensured that the jury is never to be questioned about deliberate
process.
 Cannot demand that the jury answer questions about deliberation.
 The lawyer who lost wants to know how they decided (always respectfully
ask)
o Historically – there can be no inquiry into something that inheres in
the verdict.
 What does the judge need to look into:
o Jury was bribed.
 If judge thinks he is obliged to do an inquiry
o Jury is using information that was not in trial
 12 angry men, switchblade from pawn shop.
o Jury doesn’t like race of someone in trial
 Traditionally – They are free to discuss anything they want
 More now – if it is made known then it’s worth the time to
ensure it doesn’t happen. If you’re going to have trial by jury
you can’t have that.
What happens when you find out something does not inhere in the verdict
 3.575 – if you get a call or letter of someone saying there was something that
does not adhere in the verdict, within 10 days (?), to the attention of the
court
 Bring people into the court room one at a time and the judge will conduct an
inquiry.

Judgment