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FAQs

Should a defendant’s statements be thrown out because he/she was not read their Miranda rights?

Answer:  Depends.  A defendant's Miranda rights only come into play when the defendant is considered "in custody" AND "is subject to interrogation."  Thus, if a law enforcement officer arrests you, but doesn’t ask you any questions that could elicit an incriminating statement, then 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 at the time would feel free to leave.  Thus, you could be in custody in your own home if law enforcement 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 confront you with drawn weapons, you probably wouldn’t feel free to simply walk away from them, even if they were in your home.

Furthermore, basic questions regarding someone’s identification are not considered questions that seek to elicit incriminating information.  On the other hand, an officer asking a suspect in custody what he was doing at the house he was just observed leaving, for example, may very well be an illegal question that’s subject to suppression, if Miranda hadn’t been read to the suspect.  


Can someone be convicted based on the testimony of just one witness?

Answer:  Yes.  While it may be true that in the Bible that there must be at least two witnesses to prove a crime (“ Any charge must be sustained by the evidence of two or three witnesses.”  2 Cor. 13:1; Deut: 19:15), that’s not the case under Florida law.  The fact of the matter is that one witness is all the state needs to prove their case.

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 advance their career and they certainly can't do that if they file charges only to nolle pros them at a later date.


Isn’t another person’s testimony simply hearsay, and therefore, not admissible?

Answer:  No.  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 that testimony would be hearsay.  Even still, such testimony, could be admissible under such hearsay exceptions as reflective of that person’s “then existing state of mind.”

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.


Is a defendant’s alleged confession automatically admissible?

Answer:  No.  A defendant’s confession (assuming it was voluntary and there were no Miranda violations) cannot be admitted as evidence in the state's case in chief, before the state first establishes by prima facie evidence what’s 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.     

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 in custody what they were doing at a house they were just observed leaving from, may very well be an illegal question, that’s subject to suppression, if Miranda hadn’t been read to the suspect.   
   


Should I let law enforcement into my house if they ring my doorbell?  

Answer:  No.  The only reason law enforcement want to enter your house is to search it.  Don’t open your door.  They need a warrant if they want to get in.


If law enforcement asks to search my vehicle pursuant to a traffic stop, should I consent if I know I have nothing to hide?

Answer: No. Consenting to a search of your vehicle is only asking for problems.  People will ask that if that person has nothing to hide, then why not simply consent and get it over with?  The problem with that is it happens over and over again where the driver consents to a vehicle search only to be arrested for some prescribed pill or some other contraband that was left lying around the vehicle by someone else, unbeknownst to the driver.  Be mindful, however, that during a traffic stop, law enforcement can have a drug detection dog do a “walk around” the vehicle during the course of time that it takes them to issue a citation, but not any longer.

Thus, if an officer intends to write you a citation for speeding, but simply sits around and waits 15 minutes for the dog to arrive before writing the citation, that is considered an impermissible detention and any illicit substance discovered will be suppressed (pursuant to the filing of a motion to suppress) as fruit of an illicit seizure.  A routine traffic stop, however, does consist law enforcement officers checking the driver license, the vehicle registration, the proof of insurance, and determining if there are any outstanding warrants. 

 


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.



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1751 Mound Street, Suite #105, Sarasota, FL 34236
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