Presented by:  Judge Mark A. Speiser



}Original
}Amendments
}First 10 amendments called "Bill of Rights" the most important source of limitations on the
federal government's power
}Not all constitutional amendments are applicable to Criminal Law
}
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}Guaranteed by the SIXTH AMENDMENT
}Only for "serious offenses"
}Means imprisonment for more than six months
}Not for petty offenses less than six months
}Not for juvenile cases
}No constitutional right to jury of 12
}Must be at least six jurors
}Six or twelve person jury vote has to be unanimous
}
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}Sixth and 14th amendment guarantee right to a Public Trial
}Press and public have a right to attend trial. Judge can't exclude without initial finding closure
is necessary for a fair trial
}Right to unbiased judge: can't have actual malice or financial interest
}State can't compel accused be tried in prison clothing (accused needs to make timely objection)
}Right to have jury free from conflict or undue influence.
}
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}Guaranteed by the fifth and sixth amendment
}Fifth Amendment applies to custodial interrogations
}Sixth amendment applies to all critical stages of prosecution after formal proceedings have begun
}Defendant has the right to be represented by privately retained counsel or, to have state
appointed if he is indigent
}
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}Custodial police interrogation  - Fifth Amendment
}Post-indictment interrogation - custodial or not -- fifth and sixth amendment
}Preliminary hearings to determine probable cause to prosecute
}Arraignment
}Post-charge lineups
}Guilty pleas and sentencing
}Felony trials
}Misdemeanor trials-where jail is imposed
}Overnight recesses during trial
}Appeals  (as a matter of right)
}Appeals of guilty and nolo contendre pleas
}
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}Blood samples
}Breath samples  - DUI investigations
}Handwriting or voice exemplars
}Investigative (pre-charge) lineups
}Photo identifications
}Preliminary hearings to determine probable cause to detain
}Discretionary appeals
}Parole and probation revocation hearings
}

}Waiver of counsel must be knowing and intelligent
}
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}Guaranteed by sixth amendment
}
}To ensure the following:
}Finder of fact and defendant observe the DEMEANOR of the witness
}Defendant has opportunity to cross-examine the witness
}Exception: to insulate a child victim from trauma, but must ensure reliability of witness’s
testimony
}
}Codefendant's confession implicating codefendant:
}When two defendants tried together for committing the crime together, a confession is prohibited
for admission in trial unless the codefendant takes the stand and subjects himself to cross
examination
}BRUTON PROBLEM

}Fifth and 14th amendments
}Before an admission made during custodial interrogation by an accused can be used against him, he
must have the proper warnings and the appropriate waiver.
}

}From this Supreme Court decision the Fifth Amendment privilege against compelled
self-incrimination became the basis for ruling on the admissibility of a confession
}A person in custody, arrested, must be advised that BEFORE any questioning
–He has the right to remain silent
–Anything he says can be used against him in court
–He has the right to an attorney
–If he can't afford an attorney one will be provided for him if he wants
}What constitutes "custody" can be an issue
}Traffic stop is generally not custodial
}Doesn't apply to "spontaneous statements": statements made by a suspect not in response to
questioning but simply volunteered
}

}Accused can waive his Miranda rights
}It is the state's burden to show by a preponderance of evidence that the accused did so knowingly,
voluntarily and intelligently
}

}Guaranteed by the fourth amendment
}Evidentiary searches and seizures must be reasonable to be valid
}SEARCH : government intrusion into an area where a person has a justifiable expectation of privacy
}SEIZURE : exercise of government control over person or thing
}REASONABLE: depends on circumstances
}"Reasonable" usually means police should have obtained a warrant before the search
}

}Physically: a warrant is a document that specifies what is to be searched and specifically gives a
police agency authority to conduct the search. It bears the signature of a judge.
}What makes a warrant VALID?
}A warrant must be issued by an impartial judge
}A warrant must be based on "probable cause"
}A warrant must be based upon facts that are sworn to and submitted in a separate affidavit to the
judge by the officer
}The affidavit can't simply be conclusions of the police officer but must articulate (specifically
state) reliable facts and circumstances for the judge to make an independent evaluation as to
whether or not probable cause exists
}

}A set of reasonably trustworthy facts and circumstances sufficient to allow a reasonable person to
believe that a crime is or about to be committed.
}A warrant must specifically and accurately describe the place to be searched and the items to be
seized
}A warrant can be defective on its face if the description of the premises to be searched is not
accurate
}

}1.  Search incident to lawful arrest: if an arrest is based upon probable cause, a search upon
that arrest is permissible
} Example: suspect arrested for DUI -- entire vehicle can be searched, including its contents -
closed containers etc..
}
}2.    Automobile exception:  if police have probable cause to believe a car contains evidence of a
crime it can be searched
}
}

}3. Plainview:
}Police must legitimately be on the premises
}Discover evidence of a crime or contraband
}See such evidence in plain view
}It must be immediately apparent items are evidence of a crime or contraband
}4. Consent:
}If police are given consent voluntarily and intelligently
}Scope of consent can limit the scope of the search
} Example: threats by police to suspect can negate voluntariness of consent
}
}

}
}5. Stop and Frisk:
}A police officer can stop someone without probable cause if he has a specific and reasonable
suspicion of criminal activity
}Likewise if officer has reasonable belief someone is armed and dangerous he may conduct a
protective Frisk
}"Pat down“- officer may reach into suspects clothing and seize an item he reasonably believes is a
weapon or contraband
}
}6. Hot pursuit:
}Officers chasing a fleeing felon can search as much as reasonably necessary to prevent the suspect
from resisting or escaping
}Officers also can seize evidence of a crime if the evidence is likely to disappear before a
warrant can be obtained
} Example: blood sample containing alcohol or fingernail scraping
}

}This is a judicicially created doctrine that prohibits the use in a criminal trial of any evidence
obtained by the government (police, prosecutors, etc.) in violation of an individual's
constitutional rights under the fourth, fifth and sixth amendments of the Constitution.  This
includes not only tangible evidence but confessions as well.
}The purpose of this doctrine is to discourage law-enforcement from violating an individual's
constitutional rights
}

}If the government isn't permitted the use of such improperly obtained evidence police will be less
likely to violate those rights to begin with
}Not only is illegally obtained evidence excluded but any evidence that is derived from the
illegally obtained evidence is also excluded. This is known as the "tainted fruit of the poisonous
tree”
}
}How is the exclusionary rule enforced?
}

}A motion to suppress evidence is normally a pre-trial hearing held before a judge before a jury is
empaneled
}The judge listens to the facts surrounding the search/seizure of the evidence or the obtaining of
a confession through the presentation of state and defense witnesses.
}The state has the burden to establish the legal admissibility of the evidence or confession
}The defendant has the right to testify without his testimony being subsequently used against him
in a trial
}At the conclusion of the testimony presented both the state and the defense have an opportunity to
present the appropriate case law to argue their respective positions on the motion.
}

}If the judge rules that the evidence or confession is obtained in violation of the defendant's
rights he can "exclude" it’s use at trial. (This is why this is referred to as the EXCLUSIONARY
RULE)
}By eliminating the ability of the state to introduce evidence at trial or the defendant's
confession, the result may effectively prevent the state from being able to successfully prosecute
its case.
}This is why the "exclusionary rule" can be used as a powerful tool in defending a case where an
individual's rights have been violated by law enforcement.
}If judge excludes the evidence or confession, State can appeal that decision to an intermediate
court of appeal, prior to the initiation of the trial
}
}

}Useful analysis of the law of "SEARCH AND SEIZURE" asks:
}Does the defendant have a fourth amendment right ?
}Was there governmental (versus private) conduct ?
}Did the defendant have a reasonable expectation of privacy (example: his home or apartment) ?
}Did the police have a valid warrant ?
}

}If no warrant was there a valid exception?
}It is easy to see, with an infinite number of unique factual situations, subject to legal
interpretation and the applicable legal principles, why search and seizure law is so complex. There
are volumes and volumes written about it in thousands of cases rendering legal opinions
}It can literally “make or break” the case for the defendant and is a hotly and frequently
litigated issue
}

}Fifth and 14th amendments deal with concepts we hear throughout criminal law and put most simply,
due process is essentially a guarantee of fairness of the law, while equal protection guarantees
that similarly situated people shall be treated equally
}Example:  if a law prohibits use of gasoline lawnmowers on a Sunday this would be a due process
issue. The law could be argued to be unfair and arbitrary.
}If a law prohibits only unmarried persons from using the lawnmower that would be an equal
protection issue, because it would unfairly single out a specific group of people
}Both guarantees have their roots in principles of FAIRNESS.
}

}The DUE PROCESS clause requires in all criminal cases that the state (the prosecution who is
bringing the charges and making the accusation of a criminal offense) has the sole burden of
proving each and every element of the crime charged (all crimes have essential elements of proof)
beyond a reasonable doubt.
}PRESUMPTION OF INNOCENCE - Not mentioned in the Constitution but it is an essential component in a
fair trial
}

}Since Accused is presumed to be innocent of the crime charged, the Accused never has to prove
their innocence, the Government must prove the Defendant guilty beyond and to the exclusion of
every reasonable doubt
}Probable cause v. Reasonable doubt standards

}The fifth and 14th amendment guarantee that a defendant can't be tried for the same offense twice.
}
}Jeopardy attaches:
}When a jury is given the oath or "sworn in"
}If no jury, when the first witness is sworn in
}This applies only in a criminal case
}
}Retrial is permitted and not considered as Double Jeopardy:
}Hung jury
}Mistrial of necessity
}After a successful appeal
}Note: a defendant can be tried for a federal offense and a separate but similar state offense and
punished consecutively. This is not double jeopardy as they are actually different laws.
}

}No discussion of the criminal justice system would be complete without at least a basic concept of
what we define as a crime
}Today, STATE STATUTES, enacted by state legislatures are the primary source of what constitutes a
CRIMINAL ACT and therefore considered a violation of the law
}The FEDERAL SYSTEM has its own set of laws enacted by Congress, called US CODE, entirely
statutory, there are no common law crimes
}

}About 25 years ago there was a deliberate shift to designate criminal courts strictly as courts of
PUNISHMENT
}REHABILITATION was no longer to be a major factor in determining or imposing a sentence
}With the passage of time we have returned to a more enlightened approach of the criminal court
}The majority of dispositions in criminal court still dole out punishment, but alternative
considerations have become once again significant factors in an increasing number of cases.
}Potential rehabilitation and specialized treatment is no longer ignored or irrelevant
}
}

}Emergence of specialty or PROBLEM SOLVING COURTS
}The underlying concept is that punishing crime accomplishes several things for society as a whole:
}While imprisoned a criminal can't commit more crimes to hurt society
}Punishment deters criminals from committing future crimes
}Punishment may deter other people from committing similar crimes for fear of similar punishment
}Punishment is appropriate to satisfy society's need for revenge
}Rehabilitation to mold or reform the criminal to return to society and behave properly
}Each of these two theories could be discussed, challenged, and argued at length, but are generally
how our society justifies punishment for committing crimes
}

}Most states define:
}FELONY -- -- a crime for which punishment can be death or imprisonment for more than one year
}MISDEMEANOR -- -- a crime where punishment is less than one year or simply a fine
}

}Sometimes a confusing concept
}
}Example  a) -- -- delivery of cocaine
} Versus
}Example B.) -- -- conspiracy to deliver cocaine
}
}Both are punishable up to 15 years in prison
}What is the difference?
}Example a - delivery is the actual sale or distribution to another of a quantity of cocaine
whereas a conspiracy to deliver cocaine. is simply an agreement between two or more individuals to
sell or distribute cocaine to another
}Essentially in example A. the law punishes for the actual ACT
}Example B- the law punishes for the AGREEMENT to do the unlawful act whether it's completed or
carried out or not
}

}Today, the majority of states require some actual OVERT ACTS in furtherance of the conspiracy--
mere acts of preparation are sufficient
}CONSPIRACY is often easier for the government to prove when the actual deed fails to materialize
}Example:   DRY CONSPIRACY (no actual drugs)  more sweeping in who can be prosecuted
}Example:  wife who brings husband to the phone to speak with a co-conspirator to plan the delivery
of drugs
}This is why you will see in an INDICTMENT or INFORMATION  that the defendant is charged with
conspiracy to deliver cocaine AND a second count of delivery of cocaine
} This gives the government a second opportunity to obtain a conviction especially if the proof of
the actual crime is weak
}Conspiracy to commit a crime in most cases carries the same penalty as the crime itself.
}

}Let's take a case and examine the various stages of its progression to see the key elements of how
the system functions:
}Remember, every state has its own body of laws and procedure. Terms and procedure can vary. This
is why each state has its own bar admission exam requirements.
}Common type of state felony prosecution: the arrest of a defendant for criminal activity police
become aware of occurring or having just recently occurred
}
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}Ivan and Boris are drinking and socializing at the Hard Rock Lounge. There is music, alcohol, and
dancing. Throughout the course of the evening Big Pete and his buddy Curley seem to be drinking too
much and trying to provoke a fight with Ivan and Boris claiming they were staring at their women!
}Ivan and Boris repeatedly ignore engaging in any argument with Big Pete and Curley.
}Big Pete and Curley are significantly bigger than either Ivan or Boris and are clearly
intoxicated. As the evening comes to an end Ivan and Boris go outside to a seating area and are
engaged in conversation with the owner of the lounge.

}Big Pete and Curley are seen exiting the lounge and heading directly towards where Ivan and Boris
are seated.
}As Big Pete is approaching Ivan he is clearly heard to be swearing at Ivan and making threats.
}As big Pete continues towards Ivan and comes within arm's distance, he makes an aggressive move
with his fist seen by witnesses as an attempt to strike at Ivan.
}

}Before any blows connect Ivan rises out of his chair and meets Big Pete's attempted  strike with a
punch to Big Pete.
}Notwithstanding the significant difference in their size, blows are exchanged and Big Pete goes
down.
}While on the ground Ivan hits Big Pete several times in the head to  ensure that he doesn't get
back up to continue the fight.
}
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}Boris and Curley have engaged in a fistfight while Ivan was fighting with Big Pete
}Witnesses called the police. Upon their speedy response to the scene paramedics are called to
treat Big Pete who was still on the ground with a concussion.
}After a quick determination of what happened, the police arrest Ivan and charge him with
committing aggravated battery, a felony
}Ivan is transported to the County Jail and booked on one count of aggravated battery
}
}
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} Ivan is processed at the jail  (Booking): prints and photographs are taken to check the system to
ensure Ivan’s true identity
}Most crimes have a schedule or list of Standard Bonds to be posted for release.
}
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}A bond is essentially a guarantee made through money or property to ensure defendant's appearance
in court.
}Not all charges automatically have a bond
}First degree felony punishable by life:  no
bond
}Capital cases: no bond "Arthur Hearing"
}Domestic violence:     no immediate bond, must see a magistrate who will set bond
}If one is unable to "bond out" after arrest, they will see a judge (magistrate) within 24 hours of
their arrest.
}
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}The Magistrate System was created as a safeguard  to ensure a legitimate reason exists to have
someone held in custody.
}
}Magistrate must establish the amount of the bond, and further determines Probable Cause (the facts
and circumstances that lead one to reasonably believe the suspect has committed a crime). This is
not a terribly high standard of proof, but at least establishes some basic reason for someone to
have been arrested.
}
}If the magistrate can't reduce or set a bond as in a first-degree felony punishable by life, or a
drug trafficking case, the defense lawyer can apply for relief to the judge assigned to the case.
This usually takes a week or more to get the "motion for a bond reduction" on the judge's calendar.
}

}In our case, Ivan gets booked in on a standard bond for aggravated battery of $5000
}Ivan doesn't want to wait for magistrate court the next day. He has access to a phone in the jail
to call his family. Family contact a Bondsman, who for a fee will post the bond.
}Ivan is therefore released early the next morning on a $5000 bond and does not see the magistrate

}If Ivan didn't have money for a bond, the next day the magistrate could have reduced the bond:
}Placed him on pretrial reporting - on his own recognizance
}Require an electronic monitor -a device  placed on his ankle, or a GPS,  and require him confined
to his home other than for work and necessities.
}Require any additional conditions or requirements the court deems appropriate, such as- random
alcohol or drug testing, no victim contact, psychological evaluation and recommended treatment.
}

}There are two main considerations for a magistrate or any judge regarding a bond reduction and
conditions of release:
}Is the defendant in a danger to the community?
}Is the defendant a flight risk?
}If the magistrate refused to reduce Ivan’s bond or consider any other conditions of release Ivan
would remain in custody pending the conclusion of this case. Three months to a year or longer,
there is no time limit.
}

}Once Ivan is released or if it determined he must remain in jail, what is the first thing that he
should do?
}Of course, hire a lawyer. (If he could not afford one, a public defender would be appointed)
}It is generally agreed that the services of a private lawyer will be of better quality than from a
public defender.
}

}In the state of Florida we have prosecutors who are called "State Attorneys". There is one for
each judicial circuit generally. They are elected officials and have numerous assistant state
attorney's hired to help prosecute cases.
}Broward County has in excess of 250 assistant State attorneys working in juvenile misdemeanor and
felony courts.
}Special assistant state attorney's work in "Intake Unit"
}It is their responsibility to analyze the new cases sent to them by the various police agencies in
the county.
}

}The Intake Unit of the Prosecutor’s office serves as an intermediary between the police and the
court system. They decide which defendants the police arrest, merit prosecution and which do not
due to:
◦Lack of evidence
◦Illegality of arrest:
–Physical evidence illegally seized
–Confession unlawfully obtained

}They review police reports, witness statements, lab reports, photos, and any and all evidence
submitted to them by the arresting police agency.
}Once they examine and evaluate all of this information it is within their sole discretion as to
what charges, if any, to file against the defendant. This is a very critical and powerful position
}These prosecutors are completely independent from the police agencies. They are not bound to nor
are they obligated in any way to agree with or follow the police agency’s evaluation of the case.
}

}The criteria they follow as to what charges to file is essentially whether they can reasonably
expect to successfully obtain convictions.
}In Ivan's case the prosecutor believes from the facts that have been submitted to him through the
police reports, that one count of aggravated battery would be the appropriate charge.
}This intake process usually requires several weeks to proceed. During this time there is a window
of opportunity prior to a formal filing decision, that a defense attorney can, on occasion use to
his client's advantage.
}

}Facts not included in the police report or otherwise not known to the prosecutor can be presented
to the prosecutor by defense counsel, that may alter his opinion as to what charges to file.
}Example: the fact that Big Pete's dad was a police detective and that Big Pete had a severe
drinking problem and extensive history for violence.
}On occasion, facts such as this can be very effective in persuading an assistant state attorney to
file a less serious charge or decline the filing of criminal charges altogether.
}

}Ivan however was not so fortunate. In this case despite Big Pete's history, there existed a video
from a surveillance camera that showed Ivan kicking Big Pete several times after he was down. These
were facts that the intake prosecutor would not ignore.
}It was the conclusion of the Assistant State Attorney that Ivan should have retreated once the
victim was on the ground. He therefore filed one count of aggravated battery, a second-degree
felony with a maximum penalty of 15 years  in Florida State prison.
}Based upon the filing of charges, Ivan's lawyer sent to the court a Notice of Appearance, which
officially stated that he was to be the "attorney of record" defending Ivan.
}The prosecutor had already filed a formal document with the court which set forth the fact that
Ivan was being charged with the crime of aggravated battery.
}

}This document is called an "Information", and officially describes what Ivan is charged with by
the State of Florida. This document is simply an accusation and  carries no more evidentiary
significance than a speeding ticket.
} Remember, regardless of the allegation, there is a presumption of innocence that remains with
Ivan throughout this case until such time as he either is found guilty or pleads guilty to the
charge.
}The Clerk of Court sent Ivan's lawyer a "Notice of Arraignment".  This informs Ivan and his
attorney where and when Ivan is to appear in court to be formally advised by the presiding judge of
the criminal charge.
}

}Ivan appears in court with his attorney before a Circuit Court Judge to be formally advised by
reading of the " information" that accuses him of his crimes.
}At that time Ivan's attorney will ask the judge to enter a plea on behalf of his client of "Not
Guilty" and will demand a "Trial by Jury".
}This does not mean that the case will actually be tried by a jury, but preserves Ivan’s right in
the event he elects to proceed to trial
}

}Ivan's attorney will also file at that time a "Demand for Discovery"
}This demand requires the prosecutor to provide to defense counsel, within 14 days, a witness list,
police reports, witness statements, reports of experts, lab reports, DNA or fingerprint analysis,
video or audio recordings, exculpatory evidence known as "Brady Material", essentially everything
the prosecutor has in his case file that he plans to use in the prosecution. Nothing can be hidden,
the state has a continuing obligation to disclose any new information it discovers.
}

}Defense counsel has a similar obligation to advise the prosecutor as to any witnesses, experts,
and tangible evidence he expects to use in the defense of the case.
}
}Both the defense and the state as a result of reciprocal discovery have the right to examine each
other's evidence: including but not limited to, reports of expert's, tangible evidence, and to
interview each other's witnesses, by way of "deposition“.
}
}Deposition : taking the sworn statement of a witness by opposing counsel: broad area of inquiry
allowed. Can later be used in trial to show inconsistent statement of the witness.
}
}Not all jurisdictions allow the taking of depositions. The Federal System does NOT allow
depositions.  “TRIAL BY AMBUSH”
}

}It is also the obligation of the defense to place the state on notice if they plan to allege an
Alibi.
}An alibi is essentially a claim that the defendant did not commit the crime charged because he was
in a different place when the crime was committed. Names and addresses of witnesses who will
testify as to the defendant's location must be disclosed to the state.
}

}Motion to suppress
}Motion to dismiss
}Motion to disclose confidential informant
}
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}An effective defense attorney will evaluate his case at the conclusion of the discovery process in
order to properly advise his client of his options. (A defense attorney needs to be careful when
asked by his client for recommendations as to how to proceed.) The decision to go to trial must be
the defendant’s and NOT the attorney’s.
}Frequently asked question:  What would you do?
}Considerations: Plea versus Trial
}

}Plea offer: supervision or incarceration     (“Plea Negotiation”: an offer by the state to resolve
the case prior to trial or sometimes prior to a motion to suppress that secures the defendant a
plea of a punishment usually, significantly less than his possible punishment after trial)
}Strengths and weaknesses of the case
}Defendant's personal situation//risks to defendant in terms of the plea versus trial.

}Negotiated versus Open
}Guilty versus No Contest
}Alford plea:  "plea of convenience "
}If a plea is not an acceptable option and there are no successful pretrial motions to dismiss or
otherwise resolve the case, TRIAL is the only remaining option.
}90% of criminal cases result in a Negotiated Plea because of cost, and more importantly, risk of
Conviction
}

}Some cases, just need to be tried:
}Ivan’s attorney meets with him and thoroughly reviews the case and Ivan’s options. It is the
attorney's opinion that they have a solid defense and the case is worth trying before a jury. The
state has offered Ivan in exchange for his plea of guilty, a five-year prison sentence and $25,000
in restitution to the victim.
}After thorough discussion and understanding of his options, Ivan rejects the plea offer and elects
to go to trial.
}

} Acquittal or Conviction- Hung Jury- Lesser Included Offense
}If convicted, the probability of a prison sentence
}
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}Not meant to be arguments of persuasion, but can set forth the defense's position in the case, so
the jury understands what the defense's case is about.
}"Road map" of the case    "the evidence will show......"
}Can be waived by either side
}

}In jury selection it was explained that the burden of proving the charge against the defendant is
the sole responsibility of the prosecution. Since the state filed the charge, under the law, it is
their responsibility to prove it.
}
}This burden never shifts to the defense and essentially the defense has no obligation to present
any evidence whatsoever.
}
}Further, the burden of proving the case requires the prosecutor to establish “Proof Beyond Every
Reasonable Doubt" that the defendant committed the charge he is accused of.
}

}Each and every element of the charge must be proven beyond and to the exclusion of every
reasonable doubt in order for the state to meet its burden to obtain a conviction. If any juror has
a reasonable doubt as to any of the ELEMENTS of the crime for which the defendant is accused then
by law they will be instructed to return a verdict of Not Guilty.
}
}If the state fails to meet its burden successfully, the presumption of innocence remains and the
defendant is Not Guilty.
}

}Some cases have issues that assist the defense in defending the accused and must be raised by the
defense (though the burden to prove the charges never shifts away from the prosecution)
}These are called "Affirmative Defenses"
}Insanity
}Entrapment
}Self-defense
}Insanity:  this relates to the mental state of the defendant AT THE TIME of the commission of the
crime, and if established would compel a verdict of “Not Guilty by Reason of Insanity"
}

}The traditional standard is called "The McNaughton Rule” and requires: 1- disease of the mind  2-
caused a defect of reason 3 - To the extent that the defendant, at the time of the offense, lacked
the ability to
}   know the wrongfulness of his actions: (couldn't distinguish right from wrong) or
} understand the nature and quality of his actions
}Many jurisdictions exclude from the insanity defense, the psycho or sociopath.
} Example: a serial killer-- one who continues to commit crimes with no remorse
}

}The burden of proof of insanity varies from state to state:
}Some jurisdictions, once raised by the defense, requires the state to prove beyond a reasonable
doubt that the defendant was sane
}In other jurisdictions the defendant must prove by the weight of the evidence that he was not sane
}Federal jurisdiction requires proof of insanity by clear and convincing evidence
}In Florida, if the defendant is found not guilty by reason of insanity he can be institutionalized
in a forensic psychological hosptial if dangerous or placed in a community-based facility, if not a
danger to self or others.
}

}If institutionalized, a defendant found N.G.I. could actually spend more time in custody in a
forensic hospital than would be the case if he were sane, found guilty, and sent to prison, if the
defendant remains a danger to himself or others

}Mental incompetency is not a defense to a criminal charge, but relates to a defendant's mental
state and can affect his ability to be tried for the alleged offense, or if convicted his ability
to proceed to  sentencing.
}
}There is a completely different criteria in the law for a legal determination of competency.
}
}Under The Due Process Clause of the U.S. Constitution:
} A defendant can't be tried, convicted or sentenced if, as a result of a mental disease or defect:
} He is unable to understand the nature of the proceedings against him
} He is unable to assist his lawyer in the preparation of his defense
}
}

}In Florida the determination of competency is subject to a psychological evaluation by two doctors
appointed by the court -- in the event of a tie, a third doctor is appointed.
}The state or the defense is entitled to a hearing on this issue if requested.
}Note that in the State of Florida incompetence does not automatically require commitment to an
institution-- it must first be established by clear and convincing evidence that the defendant
meets the criteria for involuntary hospitalization meaning, essentially that he is a danger to
himself or the community or at risk of self-neglect.
}If the defendant doesn't meet the standard he can be placed for competency restoration in a
community-based facility or under some circumstances allowed to live with his family.
}In Florida if incompetency due to mental illness lasts for five years, the court will entertain a
motion to dismiss the charges without prejudice.
}Incompetency can be due to mental illness or mental retardation
}

}This is an issue that is argued extensively in drug trafficking cases as well as prostitution
cases.
}The defense of entrapment argues that the intent to commit a crime did not originate with
defendant but rather through the actions and effort of law enforcement.
}Essentially, the crime was MANUFACTURED by law enforcement where one would not have otherwise
existed.
}The concept is that police are supposed to DETECT ongoing crime not create it.
}Where law enforcement simply create an opportunity for crime to occur where one already has the
PREDISPOSITION to commit the crime-- not considered entrapment.
}

} Example 1
}undercover narcotics detective poses as a street dealer
} addict approaches and says "I needed a “20, hard“-
} detective sells a $20 piece of crack cocaine
}This is not considered entrapment as the addict was ready and willing to purchase illegal drugs
}
} Example 2
} detective uses a confidential informant to relentlessly persuade his best friend (who has no
prior criminal history) to go out to buy drugs for him because he is too ill.
}The best friend only agrees after incessant begging, pleading and pressure and the confidential
informant exploiting his friendship to get him to do what he had no intention or interest in doing.
}This would be considered entrapment because the criminal act would not have occurred except for
the agent of the police forcing this to happen.
}

}Florida Statute
}Subjective Entrapment is a jury question the defense raises to show the defendant was coerced or
induced to commit a crime he would have otherwise not committed.
}The defense must show by the greater weight of the evidence that he was induced or encouraged by
law enforcement (an undercover officer or a confidential informant)to commit the crime charged.
}If the defendant does so the state must, in order to obtain a conviction, prove beyond a
reasonable doubt, that the defendant was predisposed to commit the crime before, and independent,
of the police inducement or encouragement.
}

}Due Process
}Objective entrapment is raised by the defense pretrial by a "motion to dismiss based on entrapment
as a matter of law".
}This motion is argued before the judge who, under Florida law, if defense's argument is
successful, has the power to dismiss the case without trial.
}The basis of this motion ignores predisposition of the defendant which is irrelevant and attacks
the actions of law enforcement.
}If the conduct of law enforcement in the case is considered EGREGIOUS, then the defendant's right
to due process (fairness) is considered violated.
}

}Egregious Behavior, is police activity that is :
}Reasonably likely to cause an innocent person to commit a crime.
}
} Example: where police have as an undercover agent, an alluring woman who uses promises of sexual
favors to induce the defendant to get drugs for her.
}
}This would be considered outrageous police conduct and the case would be dismissed based on
entrapment is a matter of law.
}This would be an example of where the police manufactured the crime, rather than detecting ongoing
criminal activity.
}If the court refuses to grant the motion to dismiss the defense can argue this same issue in trial
before the jury.    This is known as "two bites at the apple".
}

}Entrapment as a practical matter is a difficult and risky defense.
}Defendant has to admit he did the deed of which he is accused
}You are essentially asking a jury to forgive your illegal activity
}You are trusting that they will understand the law of entrapment and follow it.
}Entrapment can only exist IF the  unlawful inducement comes from law enforcement or someone acting
on their behalf such as a confidential informant; it cannot evolve from a private citizen.
}

}NON-DEADLY FORCE
}Generally an individual who is without fault may use force as reasonably appears necessary to
protect himself from the imminent use of unlawful force against himself.
}
}DEADLY FORCE
}One is without fault
}One is confronted with unlawful force
}One is threatened with or reasonably believes they are threatened with imminent death or great
bodily harm
}Florida law now does not require one to retreat in this situation.
}Defense of one's home against an intruder using deadly force is considered as justifiable.
}
}
}

}In our case at the conclusion of the trial, the jury will be instructed by the judge that- in
considering the defense of Self-Defense  if there is a reasonable doubt the defendant was justified
in the use of force he should be found not guilty; conversely, if the jury has no doubt the
defendant was not justified in the use of force than he should be found guilty
}
}It is with this instruction in mind that Ivan's attorney will focus on developing facts to
persuade the jury that Ivan was justified in the use of force.
}
}
}
}After jury selection and  the swearing in of the jury, the trial will begin giving both the state
and the defense an opportunity to make an “Opening Statement.”
}
}
}    An opening statement is not argument or persuasive language with regard to the facts of the
case but rather an opportunity for the defense and the state to outline for the jury “what they
expect the evidence will show” and to frame the issues that the jury may be asked to consider.

}Ivan's attorney will introduce to the jury the concept that Ivan did nothing more than protect
himself from an imminent attack by an intoxicated bully with a history of violence, he'll outline
the facts, by explaining to the jury what he anticipates the evidence introduced in the trial will
show.
}Arguments and conclusions as to what the evidence established is reserved to the end of the case
in what is called "closing argument".
}Because it is the state's burden to prosecute the case, the state proceeds with its first witness
in presenting the evidence to support the charges
}

}Evidence can come from witnesses in the form of testimony
}Evidence can also consist of physical documents or tangible items admitted into the trial record.
}
C:\Documents and Settings\Christie\Local Settings\Temporary Internet
Files\Content.IE5\BI1VUGME\MCj02876260000[1].wmf

}Direct Evidence; actual facts presented into the record from testimony or physical evidence to
describe the events and actions surrounding the alleged crime.
}Circumstantial Evidence ;a series of circumstances that can lead to reasonable conclusions as to
what occurred regarding the alleged crime.
}

}Example I :
}There exists a room with one door and no windows, you are outside, hear a scream, and immediately
see a person running out of the door with a knife and blood dripping from it.. You run into the
room immediately and see  a body bleeding on the floor face down, with obvious cuts and stabbings
on their back. There is no one else around and there are no other entrances or exits from the room.
}This set of circumstances or "circumstantial evidence" could lead to proof beyond a reasonable
doubt since the only logical conclusion is that the individual seen fleeing, committed a stabbing,
,
}

}Example II :
}The defendant is pulled over by the police while driving . The police search the vehicle and
locate a bag of cocaine within a duffel bag in the trunk of the car. The car is determined to be
owned by someone other than the defendant although he is alone in the vehicle.
}A duffel bag is dusted for fingerprints and the defendant's fingerprints are identified on the
outside of the duffel bag
}The defendant is charged with possession of cocaine
}Is this proof beyond a reasonable doubt or is there a possible reasonable interpretation of what
occurred that it would be inconsistent with defendant's guilt.
}

}The state proceeds with the first witness  -Big Pete - the victim.
}Big Pete testifies upon direct questioning by the prosecutor that he was "all talk", and never
intended to become physical with Ivan.
}Direct Questions  can't suggest the answer
}Example
}What occurred that night Sir?
}Were you drinking alcohol?
} How long were you in the bar?
} Did you speak with anybody and if so with whom?
} Are you accompanied by anyone?
}
}Leading Questions can be used on cross examination
}Example
} Isn't it true sir that you drank five vodka tonics that night?
}

}Big Pete testifies on direct examination by the prosecutor that he had never been involved in any
violence or fights in his life.
}He further states that he had only been at the lounge that night for about an hour and drank only
one light beer
}The prosecutor has Big Pete answer questions as to the facts surrounding the incident that night.
}The prosecutor concludes his questioning and turns over his witness to Ivan's attorney for "Cross
Examination":
}

}Ivan's counsel is not limited to direct questioning and fires off his line of challenges to Big
Pete's direct testimony
}Counsel: Mr. Pete you just testified under oath that you've never been involved in any acts of
violence or fights in your life
}Big Pete: yes sir
}Counsel:  isn't it a fact sir that on May 25 of 2008 you were actually involved in a fistfight and
sent Igor Brown to the hospital as a result of injuries that you inflicted
}Big Pete: yes, but I was never charged for that
}Counsel: isn't it a fact that you were never charged for that because your father is a Broward
Sheriff Detective who managed to quash the arrest and prosecution
}Big Pete: I don't know
}Counsel: you don't know ??  you never discussed that with your father ??!!
}Big Pete: No,   the subject never came up
}
}

}If the defense attorneys cross examination is effective it will bring out issues to create doubt
in the witnesses believability or it will raise questions as to the state's interpretation of the
facts of the case.
}Since the state has the burden of proof to establish each element of the crime beyond every
reasonable doubt, if the defense attorney creates doubts in the minds of the jury as to any
significant part of the state’s presentation of the case, the state may not obtain a conviction]
}
}
}Note: defense counsel can continue to cross-examine Big Pete  and  challenge every detail of his
testimony.    An experienced defense attorney will not nitpick and challenge insignificant
details,  such as what color was the chandelier in the lounge or what kind of clothes was Ivan
wearing, but will raise conflicts of significant issues or challenge major aspects of the witness’s
credibility.
}

}After cross examination the state can renew the questioning of its witness to clarify points made
on the cross examination;   this is called REDIRECT
}The defense can RECROSS any new issues raised in REDIRECT
}After each witness testifies, and all the physical evidence is introduced into the record, the
state RESTS its case
}The jury is then removed from the courtroom
}

}The defense must now make a MOTION for DIRECTED VERDICT for JUDGMENT of ACQUITTAL
}This is essentially an argument to the judge outside the presence of the jury that if one were to
take all of the facts in the light most favorable to the state there is not even the basic elements
from the facts that could support a conviction.
}It is unusual for a judge to grant this motion, but on occasion the state fails to establish even
the basic elements that would allow the case to go to a jury for a determination on the facts.
}If the judge denies the motion the defense has opportunity to proceed, if they wish to present any
evidence.
}Does the defendant have to present any evidence?
} Does the defendant have to testify?
}

}CONSIDERATIONS: DEFENDANT TO TESTIFY OR NOT ?
}Does the jury need to hear from the defendant?
}Is the defendant a convicted felon that you do not wish the jury to know about because it may
affect his credibility?
}Evaluation of defendant's demeanor (will he be able to effectively express himself and deal with
cross examination without losing his temper)
}

}Are there specific questions that will raise areas you do not want him to have to answer or
explain that he may become exposed to on cross examination?
}Will his testimony open doors to raise issues for the state that you do not wish the jury to know
about?
}Is the defendant's testimony essential to present facts you want the jury to be able to consider?
}In our case the defense of Self-Defense cannot be explained without Ivan testifying to the jury as
to what his perception was and what was happening at the moment he struck Big Pete.   Ivan's
testimony is therefore essential to argue this defense in this case.
}

}If there is need for lengthy explanation or argument regarding an objection the jury may be
excused and taken outside of the During trial.
}OBJECTIONS  can be made as to the admissibility of testimonial or physical evidence
}
}During trial if either state or defense ask any improper questions of a witness or attempts to
introduce improper evidence, it is the responsibility of the opposing side to announce to the court
"OBJECTION! "  and without lengthy dialogue, the legal basis for the objection
}
}In the State of Florida as in many other states as well as in the federal system, there is an
EVIDENCE CODE  that describes what evidence is admissible and what evidence should be considered
inadmissible.

}Studying and discussing the EVIDENCE CODE is the topic for a completely separate course as there
are many issues to be learned and discussed. Any competent trial attorney must become well versed
and familiar with the evidence code in order to properly represent his client whether it be a
defendant or the state, in trial.
}
}If there is need for explanation of an objection, the parties can go "SIDE BAR" out of the hearing
of the jury.
}
}

}Name a major objection to the admissibility of physical evidence or the defendant's statement
already discussed……
}The motion to suppress illegally seized evidence or an illegally obtained confession is usually
done PRETRIAL so as not to delay the trial.
}Exception: the defendant's statement must be determined by the court to be voluntarily made before
it can be introduced to the jury. If this has not been done pretrial, the court must make inquiry
during the trial.
}
} Other objections to the admissibility of the illegally seized evidence might be waived if they
are not timely made prior to trial.
}Once made, the judge will rule on the objection and declare it be "SUSTAINED" or "OVERRULED"
}
}

}Inadmissible-- may be relevant but not admissible
}Immaterial-- not relevant at all
}Question too vague or general or calls for speculation
}Calls for an opinion    (exception: EXPERT WITNESS)
}
}Leading --meaning the question is suggesting the answer (this is not permissible on direct
examination)
}
}Argumentative
}
}Asked and answered
}
}Calls for privileged testimony :  husband-and-wife, Doctor-patient, Attorney-client
}

}The prejudicial effect outweighs the probative value  (graphic photos common)
}Hearsay  =   " and out-of-court statement presented for the truth of it's  assertion"
}A large body of law on this in the evidence code, because there are many exceptions. The theory of
this objection is that evidence submitted cannot be established to be reliable.
}Example: Big Pete in his direct testimony may try to state "while I was at the bar Svetlana told
me that........... OBJECTION HEARSAY!
}Reliability is the issue because there is no way to cross examine Svetlana or reliably determine
what she said.
}

}The defense must make a renewed motion for A DIRECTED VERDICT OF JUDGMENT OF ACQUITTAL
}The standard now changes slightly: the argument presented to the judge on this motion is that in
consideration of all of the facts now presented that reasonable people could not differ in finding
that the facts established in trial could not possibly sustain a conviction.
}As with the first motion, this motion is also usually denied and the case will be submitted to the
jury for a decision as to guilt
}As a practical matter most judges do not like to take the decision of guilt away from the jury
once the case has been completely presented.
}

} Most trial attorneys regard this as the most enjoyable part of the trial for it is an opportunity
for each party to sum up their case and argue to the jury what they believe the evidence proved or
didn't prove.
}
}The State will argue it proved beyond a reasonable doubt all the elements of the crime charged,
and will examine all the testimony and evidence to support its position
}
}The defense will then have an opportunity to rebut the State’s argument and attempt to persuade
the jury it should have legitimate doubts as to the State's interpretation of the case based on
careful analysis of the testimony and physical evidence, and the logical conclusions that can be
drawn from such analysis.
}The State that has an opportunity to readdress the jury to comment on the defenses closing
argument.
}

}Once closing arguments are concluded, the jury doesn't simply retire to the jury room to
deliberate to reach a decision as to guilt or innocence.
}
}They must first be instructed by the judge . He is to advise them as to the law applicable in the
case. Remember the jury are the judges of the FACTS while the judge is the giver of the LAW.
Essentially jury instructions are the "ground rules" for the jury's deliberations in addition to
the applicable law of the case.
}
}The court will define the elements of the crime of aggravated battery consistent with the Florida
law.
}
}The court will not advise the jury of the possible punishment for a conviction of aggravated
battery. The jury is told it has no interest in the sentence if there is a conviction
}

}The court will define "PROOF BEYOND REASONABLE DOUBT"
}And highlight with an additional instruction, that it is the State’s sole burden to establish this
proof
}The court will define and ensure that the jury knows that the defendant has a PRESUMPTION OF
INNOCENCE with regard to the crime charged
}The court will explain criteria to evaluate a witness and their testimony with regard to
credibility--did the witness have an interest in the outcome of the case?--Did the witness make
inconsistent statements?--Did the witness answer the questions directly?
}The court will emphasize the defendant's RIGHT TO REMAIN SILENT and not testify in his own behalf.
That the law commands a jury to draw no inference of guilt on behalf of the defendant if he does
not testify in his own behalf
}That the arguments and statements of the attorneys are not evidence
}

}There may be SPECIAL INSTRUCTION regarding the law of a particular case (discussed earlier)
}In our case, self-defense known as “Justifiable Force" requires the reading of the applicable
Florida law on the use of force to defend yourself.
}The court will explain LESSER INCLUDED OFFENSES that may be requested by the defense or the state
} There will be host of other instructions to assist and guide the jurors in their deliberations
}
}Once jurors begin deliberating no one but the court deputy has any communication with them.
}

}If there is a QUESTION, it is written down and the court deputy receives the paper delivers it to
the judge where he will then read it to the defense and the state to discuss it.
}The jury as a whole may be called back into the courtroom in response to their question
}By the end of the day, usually around five or six o'clock in the evening, if no verdict is reached
(unless "sequestered" usually only CAPITAL CRIMES) jurors are allowed to go home to return the next
morning to court with firm instruction to discuss the case with no one
}Jurors are told not to read or watch any media coverage and to avoid all outside influences
regarding the case
}Jurors are told that if they meet one of the lawyers in the hall on the way to court that they
should not be offended if the attorneys did not say hello and completely ignored them. This is
their ethical responsibility and the jurors should not be offended by this.
}Jurors can not take anything back with them in to the jury room (cell phones, books, newspapers)
}

}Any UNDUE INFLUENCE or attempt to contact a juror is to be reported to the court immediately
}Example: a juror having dinner at a restaurant overhears a police officer who testified in the
case earlier that day discussing the case at the next table and learns  facts about the case that
were not brought out in the trial.
}In the event of a significant breach like this, the court may be compelled to grant a MISTRIAL
(this means the case has to be tried all over again)
}The same result can happen if the jury is DEADLOCKED or HUNG,  meaning that they cannot reach a
unanimous decision.
}In this event the court might read the ALLEN CHARGE
}This is an instruction that essentially encourages the jurors to try one last time to reach a
unanimous verdict to determine the case before the court is compelled to grant a mistrial.
}There is no time limit to a jury's deliberations as long as they are still discussing the case and
attempting  to reach a verdict.
}

}Once a decision is reached the court is informed.
}All assemble in the courtroom. The defense and the state stand as the foreperson of the jury hands
the signed VERDICT FORM to the court deputy who then hands it to the judge. The judge will review
the verdict form, and hand it to the CLERK to read out loud. This is known as PUBLISHING THE
VERDICT. (A heart stopping moment!)
}If acquitted, meaning the defendant is found not guilty, he is discharged and free to leave the
courtroom.
}If the defendant is convicted,  meaning that he is found guilty as accused or of a lesser included
crime, most courts will REMAND the defendant. This means that the defendant is taken into custody
if he has been out on bond and there will be a court date set for SENTENCING.
}

}Sentencing is another important and distinct part of the criminal process.
}It is the judge's responsibility to impose a legal and fair sentence, but before this can happen
numerous factors that need to be considered.
}A few decades ago a judge had no specific sentencing guidelines and had almost complete discretion
as to what sentence to impose in a particular case
}Legislatures passed sentencing laws known as a CRIMINAL PUNISHMENT CODE or SENTENCING GUIDELINES
in an effort to infuse uniformity from one judge to the next with regard to sentencing.
}The theory was that defendants similarly convicted should receive similar punishments. Too often
there was great disparity in sentences in similar cases, from one court to the next, simply because
of the difference in philosophies of the particular judges.
}

}A set of rules as to how to assign number values, taking into consideration numerous factors, to
be calculated and used in determining a legal sentence for a particular crime.
}Factors:
}Level of crime (assigned a number value by statute)
}Level of victim injury if any
}Defendant's prior criminal history
}Was defendant on probation
}Number of counts upon conviction
}

}After a series of calculations,  the points add up to a number that represents a range of months
of prison for the particular case for the particular defendant
}The higher the point value the greater amount of prison.
}In Florida under our guidelines, under 42 points the court can use discretion and prison is not
required.  Over 42 points prison is required
}The judge must first know the applicable GUIDELINE RANGE,  before he can take anything else into
consideration in determining an appropriate sentence.
}

}If the defendant has no prior criminal convictions he is entitled to have the court order:
}a Pre Sentence Investigation (PSI), a report prepared by a corrections probation officer that is
designed to reflect the defendant's background, including:
◦The defendant's work history.
◦The defendant's medical history.
◦Family situation.
◦Criminal history.
◦Substance abuse issues.
◦Mental health issues.
}The PSI  will also advise the court as to where the defendant falls in the guidelines and will
make a sentencing recommendation (not binding on the court).
}

}The PSI will have been made available to all parties prior to sentencing, where any objections to
the findings of the PSI may be raised.
}The PSI recommendation and the guidelines score are not absolute.
}At the time of the SENTENCING HEARING, both the state and the defense may  address the court,
present witnesses, and argue as to what they feel is fair sentence.
}The victim of a crime has the constitutional right to testify at the sentencing hearing and to
inform the court as to what they feel is an appropriate sentence.

}Occasionally police officers as well will testify for the state at the sentencing hearing.
}The defense can present CHARACTER WITNESSES, family members, members of the church etc.
}Anyone the defense feels has something positive to present to the court in an attempt to secure a
more reasonable or lenient sentence may be called
}Of course, the defendant always has the right to address the court, but is not required to do so.
}As a rule the court will sentence within the appropriate guideline range.
}Credit for time served
}
}

}Under certain special circumstances  the court may legally depart, DOWNWARD or UPWARD, and deviate
from the guidelines required by law
}An effective defense attorney will determine if there is any legal basis for a DOWNWARD DEPARTURE
}There are 12 enumerated reasons for a Downward Departure – MITIGATION:
}

}Legitimate, uncoerced plea bargain.
}Defendant was an accomplice to the offense and was a relatively minor participant in the criminal
conduct.
}The capacity of the defendant to appreciate the criminal nature of the conduct or to conform that
conduct to the requirements of law was substantially impaired.
}Defendant requires specialized treatment for a mental disorder that is unrelated to substance
abuse or addiction, or for a physical disability and the defendant is amenable to treatment.
}The need for payment of restitution to the victim outweighs the need for a prison sentence.

}The victim was an initiator, willing participant, aggressor, or provoker of the incident.
}The defendant acted under extreme duress or under the domination of another person.
}Before the identity of the defendant was determined, the victim was substantially compensated.
}Defendant cooperated with the State to resolve the current offense or any other offense.
}The offense was committed in an unsophisticated manner and was an isolated incident for which the
defendant has shown remorse.
}At the time of the offense the defendant was too young to appreciate the consequences of the
offense.
}Defendant to be sentenced as a youthful offender.
}

}Each is an important consideration as there are few other ways to persuade the court to deviate
from a guidelines sentence
}The defense pursuant to a "MOTION FOR DOWNWARD DEPARTURE" can present evidence and expert
testimony in support of the motion
}Obviously, a MOTION FOR DOWNWARD DEPARTURE can be an important element at sentencing for defense
counsel to properly represent his client.
}

}There are about 23 reasons cited in the Florida rules of criminal procedure were a judge may
depart UPWARD from the statutory required sentence, and actually render a sentence in the excess of
the guidelines.  These are called "AGGRAVATING CIRCUMSTANCES"
}Of course this motion for an UPWARD DEPARTURE can be argued by the state, or the judge on his own
can make such a determination
}In the event the court departs upward in a sentence he must state on the record specific reasons
for such a departure from the guidelines
}Florida has laws that create special punishments under certain circumstances in excess of the
guidelines:
}
}

}Legitimate, uncoerced, plea bargain.
}Offense was one of violence and was committed in a manner that was especially heinous, atrocious
or cruel.
}Offenses arose from separate episodes. Primary offense is at level 4 or higher and the defendant
has committed 5 or more offenses within a 180 day period that have resulted in convictions.
}Primary offense is scored at level 3 and the defendant has committed 8 or more offenses within a
180 day period that have resulted in convictions.
}Offense was committed within 6 months of defendant’s discharge from a release program or state
prison.
}Defendant occupied a leadership role in a criminal organization.

}Offense committed by a public official under color of office.
}Defendant knew victim to be a law enforcement officer at the time of the offense, the offense was
a violent offense; and that status is not an element of the primary offense.
}Offense created substantial risk of death or great bodily harm to many persons or to one or more
small children.
}Victim especially vulnerable due to age or physical or mental disability.
}Offense was motivated by prejudice based on race, color, ancestry, ethnicity, religion, sexual
orientation or national origin of the victim.
}Victim suffered extraordinary physical or emotional trauma or permanent physical injury, or was
treated with particular cruelty.
}
}

}Victim was physically attacked by the defendant in the presence of one or more members of the
victim’s family.
}Offense resulted in substantial economic hardship to a victim and consisted of an illegal act or
acts committed by means of concealment, guile or fraud to obtain money or property, to avoid
payment or loss of money or property or to obtain business or professional advantage
}Offense involved multiple victims or multiple incidents per victim.
}Offense involved a high degree of sophistication or planning or occurred over a lengthy period of
time;
}The defendant used position or status to facilitate the commission of the offense, including
positions of trust, confidence, or fiduciary relationship; or
}

}The defendant was in the past involved in other conduct similar to that involved in the current
offense.
}Offense committed in order to prevent or avoid arrest, to impede or prevent prosecution for the
conduct underlying the arrest, or to effect an escape from custody.
}Defendant is not amenable to rehabilitation or supervision, as evidenced by an escalating pattern
of criminal conduct as described in s. 921.001(8).
}Defendant induced a minor to participate in any of the offenses pending before the court for
disposition.
}Primary offense is scored at level 7 or higher and the defendant has been convicted of one or more
offense that scored, or would have scored, at an offense level 8 or higher.
}Defendant has an extensive unscoreable juvenile record.
}

}If you commit more than two of the qualifying crimes you may have double the exposure on
sentencing
}Five-year felony = 10 years Florida State prison
}15 year felony =  30 years Florida State prison
}

}If you commit a qualifying crime within two years of being released from prison you will do 100%
of your sentence with no time off for good behavior
}

}Certain classes of crimes have MANDATORY MINIMUM prison sentences that must be imposed upon
conviction regardless of the guidelines score
}The court cannot without specific agreement by the state prosecutor, deviate downward or sidestep
the minimum mandatory under any circumstances
}Examples: drug trafficking cases
}In the commission of a crime if you CARRY a FIREARM there is a mandatory minimum prison sentence
of 10 years
}If you FIRE the weapon there is a minimum mandatory of 20 years of a prison sentence
}If you INJURE someone with a firearm you are facing life imprisonment
}This is known as the "10 -- 20 -- life" law
}
}

}If a victim suffers a direct monetary loss (not consequential)
}Example: damage or loss of property, medical bills for injury sustained; not lost wages, pain and
suffering etc.
}The court can impose RESTITUTION as part of the sentence
}As a practical matter if the defendant is sent to prison for a lengthy period of time, he'll be
less likely to be able to pay restitution.
}Although rarely done, the Court may impose a separate  monetary fine in addition to imprisonment
and restitution
}

}If the calculation of the sentencing guidelines score falls below 42 points the court can impose
what is called a DISCRETIONARY SENTENCE, meaning that prison time is not compelled.  This makes
available to the court several options aside from incarceration in state prison.
}

}Not considered a conviction on one's record.  Defendant does not lose certain civil rights
}County jail -- -- maximum 364 days
}Probation -- -- up to the maximum time of possible in prison
}House arrest  [community control] -- -- can't exceed two years
}Or any combination of the three where the supervision following County jail does not exceed the
maximum sentence
}The court can also impose an electronic monitoring device  ELMO or a GPS tracking system to limit
the defendant's movement while on house arrest or probation
}

}PROBATION:  monthly reporting to probation officer
}Random drug testing
}Must be gainfully employed or in school
}Travel often restricted to local jurisdiction
}No new arrests
}Probation officer can visit one's home or work unannounced and search with NO WARRANT
}Costs for supervision
}
}

}Any additional special conditions the court deems is appropriate.  Example: psychological
evaluation and any required follow-up treatment, family counseling, special substance abuse
rehabilitation, anger management, batterers intervention program
}Upon violation of any of these conditions the probation officer will file an  AFFIDAVIT of
VIOLATION OF PROBATION,   to alert the judge who will then issue a warrant for arrest.
}An arrest for a violation of probation is accompanied with an order of NO BOND
}The defendant will remain in custody pending a special hearing before the judge that actually
placed him on probation.
}

}Work or school permitted, and any other approved activity presented weekly in a written schedule
request
}If the activity is not approved in advance on a weekly schedule it can't be done
}All other times the defendant is expected to remain in his house, is not permitted in his backyard
nor on his patio; his house is considered his Jail
}The COMMUNITY CONTROL OFFICER can check on the defendant at any time, day or night.  If the
defendant is not where he is scheduled to be, no excuses will be accepted.  It will be deemed a
violation of community control.
}As with a violation of probation, if the defendant violates any of the conditions of his community
control, the community control officer will prepare an affidavit of violation of community control
for the judge to sign.  The defendant will be arrested with no bond and remain in custody pending a
hearing before the judge
}

}The defendant who is accused of violating his probation or community control supervision is not
entitled to the same rights as an individual who is accused of committing a crime
}The defendant is entitled to a FIRST APPEARANCE HEARING within 10 days of his arrest
} The defendant has the option upon his initial appearance, to admit the violation without a formal
hearing.
} He can negotiate a plea with the prosecutor to present to the judge for his approval
}He can throw himself on the "mercy" of the court
} If the defendant wishes to deny the violation of probation or violation of community control he
can request the court set a FINAL HEARING where he will have the opportunity to defend the
accusation.
}The defendant will remain in jail until that FINAL HEARING which is usually set in several weeks
or possibly longer from the time of the FIRST APPEARANCE.
}

}Not the same rights as at trial
}Judge determines if you've violated the terms of your supervision rather than a jury
}Reduced burden on behalf of the state to prove the allegation: burden of proof = satisfy the
"conscience of the court"
}This burden significantly less than proof beyond a reasonable doubt
} If the judge finds you guilty of violation of your supervision he can impose a prison sentence
up to the maximum allowable by law , or he can reinstate your supervision with additional
conditions or modify some, with a term of County jail  rather than imprisonment.
}

}Note: even if you were successful up until the last day of your supervision and then violated, the
court still has jurisdiction to punish you.
}Example: defendant is placed on a period of three years of probation.  After two years and 364
days he commits a crime,  the court can sentence him up to the maximum for the crime for which he
was placed on probation.  He gets no credit for the almost 3 years of successful probation.
} Violation of probation hearings rarely go to final hearing
}Too easy for the state to prove
}Punishment is almost always  more severe after a final hearing rather than as a result of plea
negotiations
}Difficult concept to explain to defendants as to how they can be punished for a violation of
probation in addition to a separate punishment if they have committed a new crime while on
probation
}

}These are courts that are specifically designed to deal with individuals who have committed crimes
that are under 18 years of age
}The state still has the burden of charging and proving the crime, and instead of seeking a
CONVICTION they seek an ADJUDICATION OF DELINQUENCY
}
}This adjudication does not go against a permanent adult record
}A juvenile judge has many options as to how to resolve a juvenile case -- -- there are many levels
of punishment before child is actually committed to a facility where his freedom is taken
}Many rehabilitation programs available
}Accused child is entitled to:
}Written notice of the charges and time to prepare a defense
}
}

}Assistance of counsel  (court appointed counsel if he is indigent)
}Opportunity to confront witnesses
}Right not to testify against himself
} Right to have guilt proven beyond a reasonable doubt
}There is no right to a trial by jury
} If a child is considered a SERIOUS RISK to society he can be DETAINED pretrial for a strictly
limited period of time   (28 days in Florida)
}If a child has a bad or violent record or is accused of a violent or serious crime, and he is over
14 years of age, the state can transfer him to adult court where he will be tried as an adult and
subject to adult punishment
}

}Most frequently asked "cocktail party" question:
}How can you defend someone you know is guilty?
}
}"Legal guilt" versus "moral guilt“
}
} Our founding fathers made a judgment call in forming our criminal justice system
}They made it purposefully difficult to convict -- -- society is better served in letting a guilty
person go free rather than having a system that makes it too easy to punish an innocent person for
something he did not do
}

}This criminal justice system does not work if either side fails to do its job
}If the system cannot establish your guilt pursuant to our laws with all of its protections then as
far as society is concerned unless you plead guilty you are not guilty.
}The ethical responsibility of a defense attorney is to ensure that his client receives DUE PROCESS
(treated fairly) and gets all of the protection he is afforded under our law
}

}As a practical matter most cases aren't an issue of simply "getting someone off" but more of
"damage control" -- -- taking a bad situation and trying to make it better
}Essentially attempting to keep the defendant out of jail or lessen his jail time and prevent a
conviction from going against their record
}Most defendants are not "heinous villains", but rather decent people that do stupid things, or get
caught up in drugs, or have relationship problems
} There are certainly an abundance of genuine criminals -- organized crime members -- thieves and
con-men -- drug dealers -- violent people -- pedophiles -- people that prey on the weak.
}Advantage of private practice = attorney can reject the case or client- regardless of how much
they're willing to pay if he doesn't wish to represent them
}

}2nd most popular "cocktail party" question: Is being a criminal lawyer dangerous?
}Remember a defense attorney doesn’t have to represent the worst of the worst- but usually if your
client knows you are fighting for them (they know what they've done) they are usually grateful for
your effort
}CAVEAT!!
}
}Be Fair = give people the hard work and attention they are paying you for and COMMUNICATE with
them about their cases.  A major complaint about attorneys is that once they take a fee their
clients can never reach them to talk about their case.
}Clients want to know, and they are entitled to know, about their cases.  Even if the news is bad.
It is important to be direct and honest about their situation rather than for them to be in the
dark and shocked when they get to court.
}NEVER, EVER  make promises about anything in the case unless you are 100% sure you can deliver on
the promise.
}

}It is a wrong for an attorney to promise great results in order to get retained and then greatly
disappoint his client with results that fall short of promised expectations.
}The easiest way to antagonize a client or his family is to make false promises and create
unreasonable expectations in your ability to handle their case.
}Example ; some attorneys learned this the hard way in the 1980s representing Colombian drug
cartels in Miami, Florida
}Encourage clients if they have questions, worries or complaints to communicate them to you so you
can ensure they are satisfied you are working in their best interest and they fully understand
their case, and what you are attempting to do about it.
}Occasionally you will have a client that you simply cannot communicate with, or completely fails
to meet his fee obligation
}

}A private attorney can petition the court for PERMISSION TO WITHDRAW FROM REPRESENTATION
}This request under most circumstances is usually granted
}The court does not want to have a claim later on that the defendant's attorney did not properly or
effectively represent him as a basis to set aside a sentence.
}Never take a case where you have a CONFLICT OF INTERESTS with multiple defendants
}Example: mother and son are charged with sale of cocaine.  Mother wants you to represent her and
her son.  Their defenses are not the same.
}
}

}In order to represent both of them you would have to compromise your effort for one to help the
other.  That is an unacceptable position for an attorney to place himself in .
} If you are fair and honest and work diligently for the people that hire you, risks of someone
becoming violent are significantly minimized
}Family law attorneys (divorce lawyers) usually deal with far more dangerous clients.  Passions and
emotions run out of control when it comes to jealousy and money issues and child custody
}

}Depends greatly on experience and the severity of the case
}Always discuss and come to an agreement with the client in the BEGINNING of your representation
with regard to fees.  Clients do not like to be surprised with the bill for unexpected attorneys
fees
}Criminal attorneys don't usually bill on an hourly rate, but a flat fee or a range of fees on a
case-by-case basis
}Private Criminial Defense attorneys usually get paid their fees before they file a court
appearance on behalf of the defendant
}Example:
}DUI - $3500-$10,000 for trial
}Aggravated battery - $5000-$15,000 for trial
}Drug trafficking - $10,000-$25,000 for trial
}Homicide - $25,000-$75,000 for trial
}
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}If someone cannot afford to hire a private attorney, they are guaranteed representation.  After an
inquiry by the court, if it is determined that you have insufficient funds to hire a private
attorney the court will appoint the PUBLIC DEFENDER to represent you
} As a rule (with exception) most PUBLIC DEFENDER representation is not considered by most as good
as private counsel
}Public defenders are often not as experienced (great place to start after law school if you want
to learn trial practice)
}Agenda for case outcome of a public defender is not the same as a private attorney.  A public
defender does not necessarily care if the clients he represents are pleased with the outcome of the
case . Their agenda is to resolve cases because they have to many cases in their caseload
}A private lawyer has an interest in doing his best for his client to ensure they are satisfied,
and to enhance or maintain his reputation for providing quality representation.
}

}Education:
}
}12 years grade school
}Four years college
}
}Three years of law school -- -- law school does not really prepare you to practice law but simply
gives you the basic tools to begin to learn about being a successful practicing lawyer
}
}A law school graduate usually applies to take a BAR EXAM
}
}The bar exam often lasts for a three days and has a multistate multiple choice section as well as
an essay section
}In preparation for a bar exam there are many bar exam preparation courses that can be taken, these
are called  BAR REVIEW COURSES.
}These can be quite helpful in ensuring that you only have to take the bar exam one time.  If you
fail the bar exam there is usually a waiting period before you can take a re-examination
}