Over the years, I’ve had clients who would say things about what they perceived the law to be, but were, in fact, clearly a myth, or just plain incorrect. Below are some of those comments that would be expressed by my clients:
1. “They Can’t Convict Me because they only have one witness and they need at least two.” Well, that may be true in the Bible, but not under Florida law. The fact of the matter is that one witness is all the state needs to prove their case, based of course, on the weight and credibility of that person’s testimony. Bottom line: Never Underestimate The Strength of the State’s Case!
A prosecutor is ethically obligated to file an information (formal filing of charges) only when they believe they can prove that charge beyond a reasonable doubt. Thus, if the prosecutor has filed an information, one can’t assume that the state will simply nolle pros or drop the charge at a later date. While that could certainly happen based on the circumstances, a prosecutor will typically try to squeeze a plea out of a defendant, if they can. While a prosecutor is ethically bound to seek and do justice, that doesn’t mean that they also aren’t looking to “get ahead,” and they certainly can’t do that if they file charges only to nolle pros them at a later date.
2. “Well, that person’s testimony is ‘hearsay,’ and therefore, not admissible.” Wrong. A witness can testify to what they observed. While they typically are not allowed to speculate, their observations are not hearsay. However, if they were to testify to what another person supposedly told them, then we would be dealing with a hearsay issue. Additionally, a witness is allowed to testify to what the defendant said or told them, even though that is classic hearsay. A defendant’s statements are an exception to the hearsay rule.
Note: A defendant’s statements or confession cannot be admitted as evidence in the state’s case in chief, before the state first establishes by prima facie evidence what is called the “corpus delicti” or the facts and circumstances constituting a breach of a law. Thus, if a witness can only establish evidence of a crime based only on what that witness heard (including the defendant’s statements), and not on what that witness saw then the state has not established the corpus delicti and the defendant’s statements are inadmissible. Thus, a defendant’s confession cannot be used against him/her without the state first establishing by prima facie evidence that a crime occurred.
3. “The officer didn’t read me my Miranda Rights, therefore my statements should get thrown out”: Not so fast. A defendant’s Miranda Rights only come into play when the defendant is considered “in custody” and “is subject to interrogation.” Thus, if the cops take you into custody, but don’t ask you any questions that could elicit an incriminating response, they don’t have to read you your Miranda Rights. However, you don’t have to be officially in handcuffs, to be considered “in custody.” The test here is whether a reasonable person in your shoes at the time would not feel free to leave. Thus, you could be in custody in your own home if the cops act in way, that no reasonable person would feel like they were free to leave at the time. For instance, if a couple of officers with drawn weapons question you while in your house, you obviously wouldn’t feel free to leave your house.
However, officers asking a suspect questions regarding his/her identification, would not be considered violative of Miranda, as answers regarding one’s identification, are not considered incriminating. On the other hand, an officer asking a suspect in custody what they were doing, for example, at the house they were just observed leaving from, would be an illegal question, if not preceded by Miranda, as that questioned was designed to elicit an incriminating response.