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Miami Evidence In Federal Courts Attorney

The Federal Rules of Evidence were designed to make federal trials fair. Unfortunately, it hasn’t worked as intended. You’ve probably heard that hearsay is not admissible; that evidence must be relevant; that the “best evidence rule” applies; that certain prior convictions are admissible as evidence and others are not; that expert testimony can be presented to jurors, but only after certain requirements have been met, and on and on. The idea is that evidence should allow testimony, documents, photographs, postings on Internet social sites, etc., to be presented to the jury with the goal of being of help to the triers of fact. Contact our Miami federal crimes attorney for more information.

What you need to know is that, these days, as opposed to when I began my career as a criminal defense lawyer in 1974, most federal judges permit all sorts of evidence that is unfairly prejudicial to the defendant to come before the jury. In other words, the rules of evidence, which, at one time, were very technical, have become so relaxed that the trial judge has wide discretion as to the admissibility of evidence and that discretion is rarely overturned on appeal.

If you are facing trial, it is essential that you discuss evidentiary issues with your lawyer, such as: who will be called as witnesses by the prosecution; what evidence will the prosecution attempt to present to the jurors; what will be the defense strategy; and what will you ask the government witnesses on cross examination? What witnesses, if any, will be called for the defense? What evidence will we present to the jury? What demonstrative evidence such as photographs, maps, taped recordings, etc., will we use to convince the jury that there is at least a reasonable doubt? It is extremely important that you have a good relationship with your lawyer, so that all these issues may be discussed to your satisfaction, well before your trial begins or before a guilty plea is entered into. You may well have helpful evidence, which you must disclose to your criminal defense attorney. It will help whether your case is resolved by a plea (as over 90% of criminal cases are), or by a trial.

There is a rule of evidence that you will often hear discussed. It is Rule 403 of the Federal Rules of Evidence. The rule allows the trial judge to “exclude relevant evidence if its probative value is substantially outweighed by a danger of….unfair prejudice…”

Of course, all evidence presented by the government in a criminal case should be assumed to be prejudicial to the defendant. Nevertheless, the trial judge in federal court, a district judge, must balance the probative value of the evidence in question against a risk of unfair prejudice. The rule states that the court may exclude otherwise relevant evidence if it confuses the issues, misleads the jury, causes undue delay, wastes time, or needlessly presents cumulative evidence. As an easy way to explain the rule, I will use an example from every homicide case. The murder scene photographs and autopsy photos are always gruesome. The prosecution always wants to introduce as many of these photographs as possible in order to repulse the jurors and induce them to abhor and convict the defendant. If they could get away with it, they would probably have every photo enlarged to 3×5 feet, or larger, to show the jurors, and to leave those photographs in front of the jurors for as long as possible during the trial. The defense would argue that while certain photographs may be properly admitted as relevant, an unnecessarily large number of photographs would be unfairly prejudicial to the defendant and should not be permitted under Rule 403 or the state equivalent, since most states have their own rules of evidence, which are very similar to the federal rules of evidence.

Another rule, which prosecutors love to use to prejudice the defendant in the eyes of the jurors, is Rule 404(b). This rule allows evidence often devastating to the defense, even though in many instances, the evidence the government wishes to present to the jurors should not be admitted.

Under Rule 404(b), evidence of a crime, wrongdoing or other act may be presented to the jury after the judge tells them that the evidence in question is not admissible to prove a person’s character in order to show that on a particular occasion, the person acted in accordance with the character. But, such evidence is admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. This is the way that the prosecution prejudices the jurors against the defendant for acts not charged but which hurt the defendant’s character in the eyes of the jurors.

The rules of evidence interplay with each other. So, even when evidence is admissible under Rule 404(b), the trial judge has the authority to exclude the otherwise admissible evidence as unfairly prejudicial under Rule 403.

The law of evidence is fascinating, and a good and experienced criminal defense lawyer will have a working knowledge of the rules of evidence and how to use them to your best advantage.

Another example of Rule 403 coming into play is when one or more prior convictions are involved. For example, in a recent federal felony case, the district judge allowed the jury to hear that the defendant had a 22-year-old conviction for selling a tiny amount of marijuana. The defendant was on trial for driving a truck containing dozens of kilograms of cocaine. The prosecution used the prior marijuana conviction, which the judge allowed the jury to hear about, in his closing argument for one purpose: to prejudice the jurors against the defendant. It worked; the defendant was convicted. However, the Eleventh Circuit Court of Appeals (the federal appeals court that hears appeals from Florida) held that the trial court abused its discretion by allowing the jury to hear about the 22-year-old conviction, stating that the conviction was so remote that any probative value was slight. Unfortunately for the defendant, the appellate court did what most appellate courts do: they found that the error by the trial judge, i.e., allowing the jury to hear about the 22-year-old conviction was simply “harmless error.” In other words, the court said that even though the judge made a mistake that was unfair to the defendant, it was only a technical error in light of the overwhelming evidence of guilt against the defendant, and his conviction was upheld. The decision was unfair because there was no way that the three judges on the court of appeals could have known how much weight the jurors gave to that 22-year-old conviction when they ultimately found the defendant guilty of transporting the cocaine.

First, let me clarify. Trials in federal court are almost always jury trials. Twelve jurors comprise the jury, and verdicts must be unanimous, except in certain circumstances. Rarely, when both sides (the prosecution and the defense) agree, they may ask the judge to hear the case and to rule not only on the legal issues such as the admissibility of evidence, but also to be the trier of fact, a role usually reserved for the jury. So, there are jury trials and there are judge trials, which are commonly known as bench trials.

Now, let’s talk a little about the rules of evidence. Understand, first of all, that there are constitutional limitations on the use or “admissibility” of evidence in criminal trials. For example, a defendant is permitted to confront witnesses against him or her. The right of confrontation during a trial is guaranteed under the Sixth Amendment to the United States Constitution. That means that a defendant (the person on trial, i.e., the person being charged with a crime) has an almost absolute right to have his or her lawyer directly question witnesses during the cross examination of those witnesses. The way it works is as follows: a jury trial begins with the selection of a jury. This process is known as voir dire. The fairest and best way to select an impartial jury is to allow the attorneys to directly question the jurors. This is a right guaranteed in many state constitutions, such as Florida’s. Unfortunately, in federal courts, many judges (most of whom have never tried a case as a lawyer) limit the voir dire and ask a few questions of the potential jurors themselves. The better practice of allowing lawyers to ask questions of the potential jurors is almost extinct in many federal courtrooms. Sometimes a judge will allow lawyers to ask questions of potential jurors for a limit of time, for example, twenty minutes. Placing such a time limit is absurd since, during questioning, many issues and prejudices present themselves which need to be followed up on and cannot be when there is a limit of time placed on the lawyers when questioning potential jurors. I tried a case in the United States District Court for the Southern District of Florida, in Miami, in which the judge limited our ability to question the jurors. It was horrible for my client since, as I questioned the individuals who were ordered to court to possibly serve as jurors, many of them did not believe in the presumption of innocence and many of them stated that they did not believe my client was innocent, even after the judge told them that they must presume a defendant to be innocent unless and until proven guilty beyond a reasonable doubt. What was obvious was that jurors will answer “correctly” when questioned by a federal judge, but the answers are often not truthful. It is therefore up to the lawyers trying the case to do everything possible to select an impartial jury – without interference from the trial judge. I am sad to say that this doesn’t often happen in federal court, where the presumption of innocence is often an empty phrase. In spite of the judge’s restriction and declination to permit further and proper questioning of the potential jurors, my client was found not guilty of all charges, which had been brought against him by the United States Attorney’s Office. That not guilty verdict was in spite of the judge’s restriction on meaningful and intelligent questioning during the jury selection process.

After the jury is selected, the prosecutor gives the opening statement for the government. Then, if the defense attorney wishes to give an opening statement, he or she proceeds after the prosecutor’s statement is concluded. Sometimes, the defense will waive an opening statement, or ask to give an opening statement at the beginning of the defense case (i.e., after the prosecution concludes or “rests” their case).

After opening statements are concluded, the prosecution calls their first witness. When the prosecutor questions his or her witness, it is known as direct examination. When the prosecutor has no more questions for the witness, the defense begins the cross examination and the process continues until the government rests its case. At that point, the defense makes certain motions arguing, among other things, that the government has not proven each element of each offense charged sufficiently to allow the case to go to the jury. If those motions are denied, and they typically are, the defense goes forward with its case if it chooses to do so. It is not uncommon for the defense to immediately “rest” after the prosecution concludes its case. This is done when the defense attorneys and the defendant feel that the prosecution has not proved their case beyond a reasonable doubt.

There have been many occasions when I have had a defense case with civilian and expert witnesses fully prepared and ready to go. However, when I felt that the government’s case was not strong, and that I had conducted effective cross examination of the government witnesses, discrediting much of their testimony, I then concluded that my client would be best off by simply “resting.” I would then be able to argue to the jury that they must follow their oaths and acquit my client because the government had not met its burden of proof, since the evidence did not prove my client’s guilt beyond a reasonable doubt. In almost every instance, such a strategy was successful. Being represented by a criminal defense lawyer with extensive experience in federal court almost always makes a crucial difference in the outcome of a case.

I was in court earlier today before I came back to my law firm to dictate this section of my website. The judge commented while in her chambers that she had recently tried a case in which a lawyer with two years’ experience was trying a felony with a maximum punishment of up to life imprisonment. She indicated that the defendant was found guilty and that, if he had been represented by a more experienced and seasoned defense attorney, the verdict might well have been not guilty. She said she hated presiding over the trial since she anticipated the guilty verdict and was not happy with the minimally adequate performance of the defense lawyer. Nevertheless, she told me that it was not her place to intervene. I hate hearing stories like that because a lawyer must know when a case is beyond their level of experience or their expertise. My point is simply that anyone who is accused of a crime has so much at stake that they should make every effort to secure the services of the best criminal defense lawyer for them and their case.

After both sides have rested their cases and presented the evidence they wish to present, the lawyers give closing statements to the jury. Once the closing statements are concluded, the judge instructs the jury on the law and the criminal statutes under which the defendant was charged. At the conclusion of the judge’s instructions, the jury is excused from the courtroom and led to the jury room, where they will begin their deliberations. When the jury is out, both sides wait with anticipation. Finally comes the knock on the door, as the foreperson of the jury informs the bailiff that the jury has reached a verdict. Everyone’s hearts begin to beat faster with anticipation. The jury returns to the courtroom, and the verdict is returned. If the verdict is not guilty, the defendant will be free to leave the courtroom. Sometimes judges say to a defendant who has been found not guilty, “Go hence without day”. That means that the defendant is free and that the case is over and the defendant, under the principles of double jeopardy, can never be tried again for that offense.

If the defendant is found guilty, he or she may be taken into custody or ordered to return for sentencing in approximately 60 days after the verdict. The judge will order a pre-sentence investigation report to be prepared so that both sides and the court may review it prior to sentencing. At the beginning of the sentencing hearing, the prosecution and the defense will have an opportunity to raise any objections they wish. Then, both sides will argue to the court as to what the appropriate sentence should be and the defendant will have the opportunity to speak to the judge, if he or she wishes to do so. The judge will then impose sentence. After the sentence is imposed, the defendant will be advised as to his or her right to appeal. There are many motions that may be made by the defense, and there are many issues that are presented to the court and ruled upon.

If there was a plea agreement and no trial, there are usually restrictions on the defendant’s ability to appeal. It is impossible to go into detail about the law of sentencing, plea bargains and appeals in this brief website post. I hope that the above explanation has been helpful to you, but we are always here to provide more information and assistance in Miami and Florida federal crimes cases. Contact our firm today for more information or assistance on your federal crimes case.

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Jeffrey S. Weiner, P.A., Criminal Defense Attorneys, is located in Miami, Florida and serves the following communities: Alachua County, Gainesville, Orlando, Broward County, Fort Lauderdale, Hollywood, Pembroke Pines, Pompano Beach, Collier County, Naples, Hillsborough County, Tampa, Indian River County, Vero Beach, Lee County, Cape Coral, Fort Myers, North Fort Myers, Manatee County, Sarasota, Marion County, Ocala, Ocklawaha, Miami-Dade County, Hialeah, Homestead, Key Biscayne, Miami, Miami Beach, and North Miami Beach.
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