1751 Mound Street, Ste.105
Sarasota, FL, 34236

Contact Us

Call for your Free
Initial Consultation

Office 941.312.5608
Fax 941.388.7067
Cell 941.894.4314
Available 24/7

Share

Criminal Defense Myths

Criminal Defense Myths

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.

"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.

"Well, that person's testimony is 'hearsay,' and therefore, not admissible."  Wrong, once again.  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, however, 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.    

"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 may incriminate you, 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, in a couple of officers confront you with drawn weapons.

Furthermore, officers asking a suspect questions regarding their identification, would not be considered such questions that were asked to elicit incriminating information.  On the other hand, an officer asking a suspect what they were doing at the house they were just observed leaving from, may very well an illegal question, if in custody at the time.  

"The officer told me that if I told him who I got the drugs from, then he would let me go."        


Mr. Eisenberg is one of only a handful of criminal defense attorneys in all of Sarasota County who has been recognized by the Florida Bar as a Board Certified Criminal Trial Expert.



© 2018 The Law Firm of Richard Eisenberg, P.A. | Disclaimer
1751 Mound Street, Suite #105, Sarasota, FL 34236
| Phone: 941.312.5608

About | Criminal Defense | Verdicts | FAQs | Media

Law Firm Website Design by
Amicus Creative


LawPay Secure Payment