Florida Criminal Lawyer Blog

Most people are familiar with the standard of proof in a criminal trial, notes Broward criminal defense attorney William Moore. The state, represented by the prosecutor, must prove the defendant’s guilt “beyond a reasonable doubt” in order for the judge or jury to convict. What constitutes reasonable doubt depends. For instance, DNA or video evidence clearly showing that the defendant was present at the scene of the crime, or actually committed the crime, is quite compelling. Nonetheless, what constitutes proof beyond a reasonable doubt depends on the facts of each case, and the burden is always on the state to prove the defendant’s guilt -- not on the defendant to prove his own innocence. It is important to note that many or probably most criminal cases lack the highly definitive proof, like DNA, that many jurors like to see. Some criminal defendants are surprised to learn that they can be convicted based primarily on the credible testimony of other witnesses. In any case, the defendant is not required to testify, and if he chooses not to do so, that fact cannot be used against him. Jurors are specifically instructed that they are to draw no inferences, such as that the defendant must have a guilty conscience, from his choice not to testify.

Even though it is often said that the truth may be stranger than fiction, an off-the-wall explanation is not sufficient in most instances to create reasonable doubt. Just because the defendant or his defense attorney suggests that there is an alternative way that events could have unfolded that does not incriminate him does not believe that the suggestion will convince the jurors beyond a reasonable doubt. For example, in DUI cases, an implausible story regarding a second person who was the actual driver -- where that person cannot be located, the defendant cannot produce him as a witness, and the arresting law enforcement officer never saw another individual -- will probably not create reasonable doubt in the jurors’ minds, where the state has otherwise proven its case.

The notion that a criminal defendant is innocent until proven guilty is extremely important in American law, points out Fort Lauderdale criminal defense attorney Moore. As a matter of public sentiment, people often believe that a person must be guilty of the crime of which they are accused, or must have at least done something wrong, if they have been arrested at all. This is often an incorrect assumption based on their faith in law enforcement. Even the most dedicated and well-meaning police officers can still come to an incorrect conclusion regarding the commission of a crime.

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Florida has one of the toughest mandatory minimum sentencing laws in the country in terms of the use of firearms during the commission of a felony. The 10-20-life model requires that felons convicted of certain crimes, who are found to have used a gun while committing the crime, will receive harsh sentencing that judges have little discretion to downwardly depart from. During the past 15 years or so, there has been a national trend towards toughening sentences and reducing judges’ discretion, which proponents argue makes the system fairer by ensuring that similar crimes receive similar punishment, says Broward criminal lawyer Moore.

For defendants who are found to have used a firearm while committing a felony, the minimum sentence is 10 years in a state prison. If the defendant is found to have discharged the weapon during his commission of the offense, the mandatory minimum is 20 years. If a person is killed or injured, the sentence increases to 25 years to life imprisonment.

The program cracks down in other ways, too. Possession of a firearm by a convicted felon is a criminal act and, under this program, is now punishable by a mandatory minimum sentence of three years in prison. Additionally, the law now requires that the mandatory minimum sentences for these offenses committed with firearms be served consecutively -- never concurrently with other sentences. Frequently, criminal defendants who are convicted of offenses at trial or who take plea deals are permitted to serve sentences concurrently. For example, a person who is sentenced to ten years in jail for an aggravated battery and one year in prison for violating his DUI probation due to the new charge might be permitted to serve the one year at the same time as the clock is running for the 10 years -- an aggregate of 10 years, rather than 11.

Proponents of 10-20-life say that the solution to violent crime is to crack down on it and to deny judges’ discretion in sentencing for these offenses. Criminologists have studied crime deterrence, however, and perhaps the most important factor in deterring crime is the person’s perception of how likely it is he will be apprehended for committing, not how severe the consequences are. Mandatory minimum sentencing has also been enacted for numerous felony drug offenses in the state of Florida. Many criminal lawyers believe that imposition of these sentences in drug cases has contributed to the large prison population.

Florida was one of the first states to recognize the concept of victims’ rights, the notion that victims of a crime should be heard in the criminal justice system and their input taken into account, says Fort Lauderdale criminal lawyer Moore. In some jurisdictions, a prosecutor will always attempt to speak with victims of a crime prior to making a plea offer to a defendant. Although the victim is not a party to the proceeding -- it is the state versus the person accused of the crime -- the Florida criminal justice system tends to value the views of victims.

In some cases, victim contact is more valuable to the state than others. For example, domestic violence cases tend to have difficult victim issues. In some instances, the individual listed by the responding law enforcement agency was not the person who even called the police, and had no desire for law enforcement to become involved in the conflict. In other cases, because the victim decides he or she does not want to sever the relationship or for other reasons, the victim does not wish for the state to prosecute the alleged offense. Either way, the state sometimes moves forward with prosecuting cases without a victim-witness if the state attorney deems the prosecution appropriate even in light of the lack of cooperation. The state attorney’s office also employs victim advocates who may counsel domestic violence or other victims regarding resources available to them and other matters, notes Broward criminal lawyer Moore.

Victims can also be corporations, which is usually seen in theft or property crimes cases. For instance, if the defendant is accused of stealing an iPod from a chain store, the state attorney’s office may contact the assets protection unit to determine if the business has a preference regarding sentencing or if the corporation simply wanted to recover the merchandise.

Victims’ (or alleged victims’) cooperation is not always essential for the state to prosecute a case, and the notion that a victim “presses charges” is not entirely correct in the sense that they are not the ones who elect whether to prosecute the case or not. Nonetheless, they are involved in the justice system, and the prosecutors and courts make an effort for their voices to be heard. Some victims may just seek restitution, while others will be upset and want the defendant to go to jail. Still others may seek a compromise in which the defendant would attend anger management or domestic violence classes -- each case is different.

Miranda v. Arizona was a landmark Supreme Court case decided in 1966. It was arguably the most important development in criminal law in the twentieth century, and its value and how it should be used continues to be discussed today. The Miranda court voted 5-4 statements made by a defendant when he is being interrogated by law enforcement officials regarding a crime can only be used against him as evidence in court when he was advised of his rights prior to the interrogation. The defendant must have voluntarily waived those rights and agreed to speak to police, notes Fort Lauderdale criminal attorney William Moore. More than forty years later, Miranda remains integral to criminal defense in Broward County and throughout the United States.

Miranda rights include the right to counsel and the right to remain silent. Many police departments provide officers with cards from which officers can read the specific language of the Miranda warnings. Some even require defendants to sign the cards as proof of their intention to answer the questions posed by the police. The most common form of the Miranda warning reads as follows:

You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to speak to an attorney. If you cannot afford an attorney, one will be appointed to you. Do you understand each of these rights I have explained to you?

In Florida, and some other states, the warning should be followed by a second question: having in mind these rights, do you wish to talk to us now? Some states, mostly along the southwest border with Mexico, additionally notify individuals that if they are not citizens of the United States, they can elect to speak with representatives from their consulates. Other states, in conformity with local procedure, provide the additional information that if the person who is being interrogated cannot afford an attorney, one will be provided if and when he goes to court in relation to the case.

The Miranda warning only protects individuals who are actually in police custody and who are being interrogated with relation to the crime. Police are not required to give the warning when they arrest someone and they can conduct interviews without “Mirandizing” the suspect, although the statements will likely be inadmissible in court, says Broward criminal defense lawyer Moore.

Answers to routine questions asked during booking are also not covered by Miranda, and the police need not give the warning prior to asking basic questions like name, date of birth, the height and weight of the suspect, and the suspect’s home address.