Prior False Allegations in Sex Crime Cases

There has been a long-standing conflict among Florida courts that the Fourth District Court of Appeals recently weighed in on.  In Harvey v. State, Case No. 4D08-3607 (decided September 22, 2010), the Fourth District held that when an alleged victim of sexual assault testifies at trial, the fact that she had previously falsely accused someone of sexual assault cannot be used to contradict her accusations.  This ruling is a disappointing blow to the individual liberties of criminal defendants.

Without the ability to prove or disprove the veracity of an alleged victim’s character, juries are at a loss to fulfill their primary function: finders of fact.  When the State’s case is based on nothing more than an alleged victim’s accusations, why shouldn’t the accused be allowed to delve into other instances of dishonesty in similar situations?

In Jaggers v. State, (decided in 1988) the Second District Court of Appeals held the opposite, that a prior false accusation of sexual abuse or assault can come in when the sole evidence against the accused is the alleged victim’s testimony.  The First District Court of Appeals later held in Pantoja v. State (decided in 2008) that such statements are not admissible in any circumstances.  And now, the Fourth District has come down on the side of the First.

Florida’s evidence code forbids use of “prior bad acts” as impeachment of a witness.  Generally speaking, when a witness is on the stand, an attorney cannot claim that the witness is being dishonest because the witness has lied about something else in the past or behaved in an immoral manner.  However, the facts in Harvey, Pantoja, and Jaggers did not deal with general accusations of misconduct, but rather very specific acts of dishonest: prior accusations of sexual abuse that the victim later admitted were false.

How is this not relevant to a trial where the sole evidence against the accused is the victim’s accusations?  This principle creates the potential for the greatest evil that criminal justice system can commit: a conviction of those not guilty.

The Florida Supreme Court has recently granted review of the cases dealing with this principle.  I can only hope that the Justices recognize the danger created by not allowing an alleged victim’s prior similar false accusations to be admitted to a jury.

If you are facing allegations of sexual abuse, don’t face it alone.  Visit my website at www.shafercriminallaw.com or call me at (904)350-9333 for a free consultation.

~Robert Shafer

A “Consensual Encounter”

Is a person surrounded by police officers asking him questions free to leave?  What if they take his identification?  What if they approached him by blocking him in with a patrol car and shining a light in his face?  What if they asked to search him?

The courts have long struggled with the application of the Fourth Amendment of our U.S. Constitution to the everyday activities of law enforcement officers.  In an attempt at some sort of consistency, the U.S. Supreme Court has laid out three types of encounters with law enforcement: consensual encounters, investigatory detentions, and arrests.  The level of constitutional rights a person has increases with the level of restriction, respectively.

So what type of encounter is described above?  According to a circuit judge in Monroe County, the above-described scenario is simply a consensual encounter from which any reasonable person would feel free to walk away.  This conclusion is contrary to common sense, and the Third District Court of Appeals (thankfully) reversed this judge’s classification of this encounter.

In Hill v. State (Case No. 3D09-1346, decided June 30, 2010) the Third District reversed the trial judge’s ruling: that a reasonable person who is menacingly surrounded by police officers who have taken his identification and have asked to search would feel perfectly comfortable walking away from the officers.  In this case, an anonymous tip told officers that a black man was sitting by a white woman at a particular location and selling drugs.  When the officers arrived, one of them pulled up directly in front of Hill ( black man) and directed his spotlight on him.  Another officer took Hill’s identification to check for outstanding warrants.  Four officers then approached from different directions and boxed him in, asking to search his person.  The police had no other indication that any sort of crime was being committed.

Thankfully, the Third District applied common sense to a real-life situation.  Holding a person’s identification is certainly one way of preventing them from leaving.  The fact that his identification was being held by armed officers who were asking to search increases the restrictiveness of this encounter.  While I am glad to see this simple principle applied, I am dismayed by the myriad of trial courts who do not believe that this is a form of detention.

Police do not always abide by the Fourth Amendment.  The law exists to protect society from both criminals and the police. Consensual encounters with law enforcement can quickly become investigative detentions or arrests.  If the police do not observe your constitutional protections, you may have a legal recourse.

If you are facing prosecution for a crime or are concerned that your rights have been violated, visit my website at www.shafercriminallaw.com or call me at (904)350-9333 for a free consultation.

The “Bad Neighborhood” Defense

When deciding whether or not self defense is a viable defense to murder, the Fourth District Court of Appeals recently held that testimony about the dangerous nature of a particular neighborhood is not relevant to a person’s state of mind at the time of the crime.  In other words, a defendant cannot claim that the dangerous nature of the area contributed to his decision to use force in defense of himself or another.

In Dowe v. State, Case No. 4D-08-616 (decided June 23, 2010), Dowe was prosecuted for second degree murder.  At trial, Dowe testified that he lived in a dangerous neighborhood and had been accused of being an informant for the police.  Dowe claimed that his accuser had earlier threatened him. Later, Dowe found his car tires slashed and the accuser standing in the road.  Dowe immediately armed himself with a gun and engaged in a physical fight with the accuser during which Dowe’s gun discharged and killed him.  Dowe claimed the discharge was accidental.  The jury disagreed.
During trial, Dowe claimed that because he lived in a very dangerous neighborhood and he had been previously threatened, he was entitled to an acquittal on the murder charge because he had a reasonable fear for his own safety.  When his attorney attempted to introduce testimony about the dangerousness of the area, the trial judge would not allow it.  The Fourth District Court of Appeals upheld this decision because evidence about the type of area in which the Defendant lived had nothing to do with the dangerousness of the actual victim of the crime.  In addition, the Court noted that testimony about the area could have prejudiced the State by implying that the victim was a bad or dangerous person when there was no other evidence to support that claim.

While I do not necessarily disagree with the Fourth District’s reasoning, this ruling does raise some serious concerns about a defendant’s ability to argue self defense at trial.  The tricky part about self defense is that it requires a rather subjective determination: a jury must find that a person reasonably believed that force was necessary to prevent great bodily harm to himself or another.  This determination requires the jury to first determine if the person was actually in fear, and, if they were, whether that fear was reasonable.

A defendant’s state of mind is the critical component to this defense, and the notion that being in a “rough” area has no effect on a person’s perceived fear of harm is contrary to common sense.  For example, a person walking down a dark alley at night in a high-crime area on their way home will naturally be a bit more nervous about their surroundings than one walking through a park in the middle of the day.  A person aware of the fact that they are in a dangerous area is much more likely to perceive a threat when a stranger approaches them or a shadowed figure jumps out at them.  Why shouldn’t awareness of dangerous surroundings be uniformly admissible when such a subjective determination is required?

I am not saying that Dowe was justified in his actions – the undisputed facts elicited at trial appeared to be that Dowe attacked and killed an unarmed man.  However, I am concerned that the Fourth District’s limitation on this kind of evidence will chip away at the cornerstone of self defense – the defendant’s mental state at the time of the crime.  Awareness of surroundings can be integral to such a determination.  Was Dowe actually in fear when he attacked the victim?  Was this fear reasonable?  Why not give the jury all of the information about the Defendant’s state of mind before that determination is made?

If you are facing prosecution for defending yourself or another, don’t face it alone.  Visit my website at www.shafercriminallaw.com or call me at (904)350-9333 for a free consultation.

~Robert Shafer

An Impartial Jury

In Florida, most jury trials are conducted with six jurors.  How do those six get picked?  From a large group of people who are asked a lot of questions.  How do you ensure that those six will be fair and impartial?  You make sure they are judging the facts of the case before them, not the character of the defendant.

The Fourth District Court of Appeals recently held that when a potential juror is informed that the defendant in a criminal case may potentially have a prior criminal record, that potential juror is no longer permitted to serve on the jury.  The exception would obviously be in cases where a defendant’s criminal record is an element of the offense charged, such as possession of a firearm by a convicted felon.

In Evans v. State (35 Fla. L. Weekly D1291), a corrections officer found his way onto a potential jury panel.  Responding to an inquiry as to whether or not he had ever met either of the defendants before, he told the attorney that he had been in contact with the defendants “quite a bit already.” Even though the defense attorney objected to this statement and asked for a new jury panel, the trial judge refused to provide one.

In reversing the trial judge’s decision, the District noted the long line of cases that stand for the proposition that a jury is to decide the facts of a case, not the character of a person.  Cases such as Richardson v. State, 666 So. 2d 223 (Fla. 2d DCA 1995), Jackson v. State, 729 So. 2d 947 (Fla. 1st DCA 1998), and Holt v. State, 987 So. 2d 237 (Fla. 1st DCA 2008) have long stood for a defendant’s right to fair, impartial, and untainted jury.  The problem with allowing juries to know about any other crime than the case before them is the common tendency to assume that because a person has done wrong in the past, they are more likely to do so again.

Jury trials are about fairness.  They are about due process and ensuring that everyone who has any decision-making authority, be it judge or jury, is utterly unbiased.  Is this lofty goal always met?  Sadly, no.  But I am glad to see that the Fourth District has decided that even the slightest indication of a criminal background or bad character requires the introduction of a new jury panel.

If you are facing the prospect of a criminal trial, don’t face it alone.  Visit my website at www.shafercriminallaw.com or call me at (904)350-9333 for a free consultation.

~Robert Shafer

Victory in DUI trial

Trials are a very important part of representation.  Whether you are facing a misdemeanor DUI or felony drug, weapon, or white collar charges, having the right trial lawyer by your side can be the difference between jail or freedom.

We recently went to trial in a case where our client was charged with Driving Under the Influence.  Without violating the attorney-client privilege, I will only say that at first glance, the charges against my client were serious and there was a lot of evidence against him.  We spent weeks in preparation and sifted through the testimony of every witness, expert, and officer.  The trial lasted nearly seven hours, and after two and a half hours of deliberation, the jury returned a verdict of not guilty on all counts.  My client was not even found guilty of speeding, the reason he was pulled over in the first place.

I say that to only say that when you are charged with a crime, the government will throw everything they have at you.  Even though Florida’s budget is stressed more now than at any point in history, our State Attorney continues to feel the need to exhaust Florida’s resources by taking as many cases to trial as possible. Being a former prosecutor, I know that each trial costs the taxpayers an exorbitant amount of money.  Paying for jurors to be brought in, expert witnesses for the State, courtroom personnel, after-hours staff, even keeping the lights and air conditioning on when jury deliberations go well into the night: all of these things cost you. Greatly.  At my firm, we often try to resolve cases without a trial, in the hope that we can convince a prosecutor to drop charges or a judge to throw out the case.  However, there are times that prosecutors feel the need to make a statement and try even the most frivolous of cases, despite strained budgets.

That’s fine for us, we’ll be ready.  If you are facing a trial in a criminal case, you need an experienced criminal trial attorney at your side.  At my firm, we only do criminal defense.  Visit my website at www.shafercriminallaw.com or call me at (904)350-9333 for a free consultation.

Regards,

Robert Shafer