Affirmative Defenses for Criminal Cases

                         AFFIRMATIVE DEFENSES FOR CRIMINAL CASES 

BY: Dr. Peter A. Barone, Esq. 

Most Common Defenses and Affirmative Defenses

In some criminal cases the defendant admits committing a criminal act and a legal excuse or justification may exist which is known as an Affirmative Defense. When a defendant uses or puts forth an Affirmative Defense they are admitting to doing the action; however, they are presenting a “justified reason” for what they did and should be excused for taking that action based upon the Affirmative Defense. The defendant has to prove the requirements amounting to the affirmative defense. The Law Enforcement Official needs to understand what the defense needs to prove the claimed affirmative defense so they can look into the situation to located information and evidence to either prove it correct or to disprove it. If the law enforcement official does not know or understand what comprises each of the most common Affirmative Defenses, then they cannot know what to look for or where to look for it. For a person to be guilty of a crime, there are two things that must exist. The person must perform an action that is prohibited by law, and do so with an intent or mental state that is described by law. These two things taking place at the same time give rise to criminal liability. The law recognizes that there are times when criminal liability can be proven, but society believes it is not proper to punish the accused. When a defendant admits that he has done a prohibited act, and he intended to do that act, but puts forward as a reason that it was done under a recognized exception to punishment, he is claiming an affirmative defense (Garland and Stuckey, 2000).  

Circumstances Where the Burden Shifts to the Defense

In a criminal case there are various types of defenses which can be put forth by a defendant and one of those categories of defenses is that of an “affirmative defense.” When a defendant puts forth an affirmative defense what they are saying is “I did it.”  However, they are also saying that I did it; however, this is the reason that I did it and I want to explain it because it is recognized at law to be a defense for me to not be found guilty of this action. Now, if the defendant can prove this undeniably to the prosecutor the prosecutor may even refuse to file the case and the defendant would be free of the charges originally filed against them in the affidavit by the law enforcement officer. If the prosecutor is not convinced that the defendant is being forthright with their explanation they can file, the charges and then it would go to trial and the defendant could do a pre-trial motion or go to trial and present evidence demonstrating the substantive argument of their affirmative defense. The prosecutor would still have the burden of proving their case and either the decision would be made on a motion for a JOA or by the jury after deliberation (Garland and Stuckey, 2000).   

Requirements of the Generally Accepted Affirmative Defenses

To claim an affirmative defense a defendant typically must meet several requirements. First, he must admit that he did the act that he is accused of doing, and second evidence of the legally recognized exception to holding him responsible must be introduced.  This evidence may be part of the state’s case, or the defendant may introduce such evidence himself. Throughout the United States, each state has rules that may differ in the details of when a situation qualifies for a particular affirmative defense, but the principals involved are universal. 

Types of Affirmative Defenses

A defendant accused of assault may claim to have been intoxicated or insane, to have struck out in self-defense, or to have had an alibi for the night in question. Any one of these affirmative defenses must be asserted by showing that there are facts in addition to the ones in the indictment or information charging the defendant and that those additional facts are legally sufficient to excuse the defendant. There are several affirmative defenses which can be used by a defendant in a criminal trial.  An affirmative defense is a justification for the defendant having committed the accused crime. It differs from other defenses because the defendant admits that he did, in fact, break the law. He is simply arguing that he has a good reason for having done so, and therefore should be excused from all criminal liability (Garland and Stuckey, 2000).  

The typically recognized affirmative defenses are:

·         Self-Defense or Defense of Others

·         Necessity Defense

·         Insanity Defense

·         Duress

·         Involuntary Intoxication Defense

·         Entrapment Defense

Requirements for a Defendant to Claim an Affirmative Defense

To claim an affirmative defense a defendant typically must meet several requirements. First, he must admit that he did the act that he is accused of doing, and second evidence of the legally recognized exception to holding him responsible must be introduced.  This evidence may be part of the state’s case, or the defendant may introduce such evidence himself. Throughout the United States, each state has rules that may differ in the details of when a situation qualifies for a particular affirmative defense, but the principals involved are universal. The rules that govern pleading in most courts require a defendant to raise all affirmative defenses when first responding to the civil claim or criminal charges against him or her. Failure to do so may preclude assertion of that kind of defense later in the trial. In criminal trials, the most common affirmative defenses include:

Self-Defense 

Self-defense is a defense to certain criminal charges as well as to some civil claims. Under both criminal law and tort law, self-defense is commonly asserted in cases of homicide, assault and battery, and other crimes involving the attempted use of violence against an individual. Statutory and case law governing self-defense is generally the same in tort and criminal law.A person claiming self-defense must prove at trial that the self-defense was justified. Generally, a person may use reasonable force when it appears reasonably necessary to prevent an impending injury. A person using force in self-defense should use only so much force as is required to repel the attack. Non-deadly force can be used to repel either a non-deadly attack or a deadly attack. Deadly force may be used to fend off an attacker who is using deadly force but may not be used to repel an attacker who is not using deadly force (Kotter, 2013).

In some cases, before using force that is likely to cause death or serious bodily harm to the aggressor, a person who is under attack should attempt to retreat or escape, but only if an exit is reasonably possible. Courts have held, however, that a person is not required to flee from his own home, the fenced ground surrounding the home, his place of business, or his automobile.A person who is the initial aggressor in a physical encounter may be able to claim self-defense if the tables turn in the course of the fight. Generally, a person who was the aggressor may use non-deadly force if the victim resumes fighting after the original fight ended. If the original aggressor attacked with non-deadly force and was met with deadly force in return, the aggressor may respond with deadly force. Courts and tribunals have historically accepted self-defense as a defense to a legal action. As a matter of public policy, the physical force or violence associated with self-defense is considered an acceptable response to aggression (Kotter, 2013).

When using the affirmative defense of Self-defense, it must be understood that this is an affirmative defense used by individuals charged with crimes against the person of another such as assault and battery, and in some cases murder. The actions are admitted but claimed to be legally justified by the danger presented by the alleged victim. There are typical elements to the successful use of self-defense to charges of a violent crime:

·         the belief of the threat was reasonable

·         there was no reasonable alternative

·         the force used was no greater than necessary to end the threat

Each jurisdiction varies a bit on the elements, or how they are measured. In most jurisdictions if there is some evidence of self-defense raised, it becomes the prosecution’s burden to prove beyond a reasonable doubt that the claim of self-defense is not justified. As a legal defense to criminal charges, self-defense is hundreds of years old.  John Locke called self-defense “the first law of nature”. The right of self-defense is called by Locke the first law of nature.  Each person owns his or her own life and no other person has a right to take that life.  Consequently, a person may resist aggressive attacks.  John Locke provide the philosophical basis for the American Revolution and the rights of the people proclaimed by that revolution. 

Defense of Others

When discussing the “Defense of Others” a person may use force to defend a third person from attack. If the defender is mistaken, however, and the third party does not need assistance, most jurisdictions hold that the defender may be held liable in civil court for injuries inflicted on the supposed attacker. In criminal cases a defendant would be relieved of liability if she proved she had made a reasonable mistake and this would be based on evidence demonstrating what the person saw, heard and created the perception in their mind that a person was a victim and they needed assistance against their attacker (Kotter 2013). 

EXAMPLE (Defense of Others)

If you are walking down the street and you see a person with a gun in their hand pointing it at someone and asking them for their money and they tell the person, they are going to shoot him if he does not give up his money and the man with the gun actually shoots the victim in the leg and say I am going to shoot you in the head if you do not give me your money. At this point you have a concealed weapons permit and you shoot the perpetrator who already shot the victim once. This is a case of defense of others. 

EXAMPLE (Mistaken Defense of Others)

If you are walking down the street and you see a person with a gun in their hand pointing it at someone and asking them for their money and they tell the person, they are going to shoot him if he does not give up his money and the man with the gun cocks the trigger and aims the gun at the victim and the person with the weapon then says that I am going to shoot you in the head if you do not give me your money. At this point you have a concealed weapons permit and you shoot the perpetrator who already shot the victim once. You find out that these are friends and they are practicing their roles for a play and because it was a really nice day they decided to practice this outside and not in doors. It would be hard pressed for the prosecutor to charge the individual whose “mens rea” was to provide defense of another because anyone who saw this would come to the same or similar conclusion.  

Necessity

In some situations, a defendant will argue that while he knowingly engaged in the prohibited conduct, the purpose of his doing so was necessary to prevent a harm worse than the harm caused by his violation of law. This is the affirmative defense of necessity. To be successful in using the Necessity Defense, typically a defendant must produce evidence that: 

The harm to be avoided was greater than the danger posed by the prohibited conduct.

There was no reasonable alternative.

The prohibited conduct ceased as soon as the danger passed.

The defendant did not create the danger to be avoided (Hail 2014). 

Example

This may arise when there is a medical emergency such as a pregnant woman in labor, or a significant injury occurs. An individual may break traffic laws in an effort to get a distressed individual to proper services when it reasonably appears there is no alternative method to do so. There may be a decision to drive by someone whose license has been suspended to get help for another and no other reasonable means exist.

Insanity 

This is one of the most difficult and most non-used defense in the criminal law system because it is one of the most difficult for the defense to actually prove. The concept that it takes a particular mental state to commit a crime is at the heart of the Insanity and Intoxication defenses. The theory is that if someone was incapable of forming criminal intent then he is not guilty of criminal activity.  There are many variations on the Defense of Insanity from the possibility of not guilty to a finding of guilty but mentally ill. It is an incredibly complex area of law, as the human mind is a very complex entity. A finding of not guilty by reason of insanity does not necessarily mean freedom for a defendant (Hails 2014).

Duress 

In criminal law, actions may sometimes be excused if the actor is able to establish a defense called duress. The defense can arise when there’s a threat or actual use of physical force that drives the defendant—and would’ve driven a reasonable person—to commit a crime. A classic example is someone holding a gun to the defendant’s head to force the defendant to break the law. Some courts use the term “coercion” or “compulsion” for this defense. (U.S. v. Logan, 49 F.3d 352 (8^th Cir. 1995); State v. Baker, 197 P.3d 421.

Elements of Duress

The defense of duress typically has these elements: 

·         There is an immediate threat of death or serious bodily injury to the actor.

·         The actor has a well-grounded fear that someone will carry out the threat.

·         The actor has no reasonable opportunity for escape, except by committing the unlawful act.(U.S. v. Alzate, 47 F.3d 1103 (11^th Cir. 1995); U.S. v. Gonzalez, 407 F.3d 118 (2^nd Cir. 2005).

Involuntary Intoxication  

Intoxication by either drugs or alcohol may be a defense to certain actions; however, there are strict limits on its use. If the state of intoxication was self-induced, the defense is rarely effective, in that a person has diminished his own faculties and so is responsible for the actions that follow. Involuntary intoxication is another matter, and conduct that follows when a person has been drugged by another may be found to be legally excused. 

                                                             References

Garland, N.M. & Stuckey, G.B. (2000). Criminal Evidence for the Law Enforcement Officer 4^th Ed. Westerville, OH.: McGraw Hill.

Hails J., (2014). Criminal Evidence. Stamford, CT.: Cengage Publishing.

Kotter J. C., (2013). Criminal Evidence 10^th Ed. Cincinnati, OH.: Anderson Publishing.

State v. Baker, 197 P.3d 421 (Kan. 2008).

U.S. v. Alzate, 47 F.3d 1103 (11^th Cir. 1995).

U.S. v. Gonzalez, 407 F.3d 118 (2^nd Cir. 2005).

U.S. v. Logan, 49 F.3d 352 (8^th Cir. 1995).

 

The Affirmative Defense of Entrapment: Subjective and Objective Entrapment

THE AFFIRMATIVE DEFENSE OF ENTRAPMENT: SUBJECTIVE AND OBJECTIVE ENTRAPMENT

By: Dr. Peter A. Barone Esq.

The act of government agents or officials that induces a person to commit a crime he or she is not previously disposed to commit is the very simplistic and to the point definition of entrapment.

 What is entrapment used as and for in the criminal justice system it is presented and used as a defense to criminal charges when it is established that the agent or official originated the idea of the crime and induced the accused to engage in it. If the crime was promoted by a private person who has no connection to the government, it is not entrapment. A person induced by a friend to sell drugs has no legal excuse when police are informed that the person has agreed to make the sale unless there can be demonstrated a nexus or direct connection where the person is acting as an agent of the state.

 When examining entrapment, it becomes obvious that the rationale underlying the defense is to deter law enforcement officers from engaging in reprehensible conduct by inducing persons not disposed to commit crimes to engage in criminal activity. In their efforts to obtain evidence and combat crime, however, officers are permitted to use some deception. For example, an officer may pretend to be a drug addict in order to apprehend a person suspected of selling drugs. On the other hand, an officer cannot use chicanery or fraud to lure a person to commit a crime the person is not previously willing to commit. This is the main crux of the issue of entrapment in that the person must not be predisposed to committing the crime and the law enforcement officer is the one that pushes them to commit the crime. Generally, the defense is not available if the officer merely created an opportunity for the commission of the crime by a person already planning or willing to commit it there has to be some pressuring of the person by the law enforcement official to commit the crime.

The defense of entrapment frequently arises when crimes are committed against willing victims. It is likely to be asserted to counter such charges as illegal sales of liquor or narcotics, bribery and sec offenses, and gambling. A person who commits these types of crimes are most easily apprehended when officers disguise themselves as willing victims. Most states require a defendant who raises the defense of entrapment to prove he or she did not have a previous intent to commit the crime. Courts determine whether a defendant had a predisposition to commit a crime by examining the person's behavior prior to the commission of the crime and by inquiring into the person's past criminal record if one exists. Usually, a predisposition is found if a defendant was previously involved in criminal conduct similar to the crime with which he or she is charged. It is hard to claim no predisposition to burglary or possession of narcotics when you have several arrests and convictions for burglary and possession of illegal narcotics.

When an officer supplies an accused with a tool or a means necessary to commit the crime, the defense is not automatically established. Although this factor may be considered as evidence of entrapment, it is not conclusive and is rebuttable by the state. The more important determination in the case of entrapment is whether the official planted the criminal idea in the mind of the accused or whether the idea was already there; was the person predisposed to act in this manner.

Entrapment is not a constitutionally required defense, and, consequently, not all states are bound to provide it as a defense in their criminal codes. Some states have excluded it as a defense, reasoning that anyone who can be talked into a criminal act cannot be free from guilt.

 Historically, no legal limit was placed on the government’s ability to induce individuals to commit crimes. The Constitution does not expressly prohibit this governmental action. Currently, however, all states and the federal government provide the defense of entrapment to a criminal defendant. This is a defense that asserts the requisite intent for the crime originated with the government or law enforcement, not the defendant. The entrapment defense is based on the government’s use of inappropriately persuasive tactics when apprehending criminals. Entrapment is generally a perfect affirmative statutory or common-law defense.

Entrapment focuses on the origin of criminal intent. If the criminal intent originates with the government or law enforcement, the defendant is entrapped and can assert the defense. If the criminal intent originates with the defendant, then the defendant is acting independently and can be convicted of the offense. The two tests of entrapment are subjective entrapment where law enforcement pressures the defendant to commit a crime against his or her will and objective entrapment where law enforcement uses tactics that would induce a reasonable, law-abiding person to commit a crime. The federal government and the majority of the states recognize the subjective entrapment defense. Other states and the Model Penal Code have adopted the objective entrapment defense. 1

Subjective Entrapment

It is seen to be a case of entrapment pursuant to the subjective entrapment defense when law enforcement pressures the defendant to commit the crime against his or her will or something they would not normally do or want to do. When seeking to determine if subjective entrapment was at play in a case there must be assessment of the actions using a test. The actual subjective entrapment test that is used to make this determination focuses on the Defendant’s individual characteristics more than on law enforcement’s behavior. After making an assessment of the issues and fact of the case the person making the assessment must look to see if the facts indicate that the defendant is or was Predisposed to commit the crime alleged without law enforcement pressure, the defendant will not prevail on the defense of Subjective Entrapment as an affirmative defense. 

The defendant’s criminal record is admissible if relevant to prove the defendant’s criminal nature and predisposition. Generally, law enforcement can furnish criminal opportunities and use decoys and feigned accomplices without crossing the line into subjective entrapment. However, if it is clear that the requisite intent for the offense (originated) with law enforcement, not the defendant, the defendant can assert subjective entrapment as a defense.

Example of Subjective Entrapment

Listed here is one of many possible scenarios that can illustrated and demonstrated what is mean by Subjective Entrapment as an Affirmative Defense by a Defendant. Harry Smyth regularly attends Narcotics Anonymous (NA) for his heroin addiction. All the NA attendees know that Winifred is a dedicated member who has been clean for ten years, Marcus, a law enforcement decoy, meets Smyth at one of the meetings and begs him to “hook him up” with some heroin. Smyth refuses. Marcus attends the next meeting, and follows Smyth out to her car pleading with her to get him some heroin. After listening to Marcus explain his physical symptoms of withdrawal in detail, Smyth feels pity and promises to help Marcus out. She agrees to meet Marcus in two hours with the heroin. When Smyth and Marcus meet at the designated location, Marcus arrests Smyth for sale of narcotics. Smyth may be able to assert entrapment as a defense if her state recognizes the subjective entrapment defense. Smyth has not used drugs for ten years and did not initiate contact with law enforcement. It is unlikely that the intent to sell heroin originated with Winifred because she has been a dedicated member of NA, and she actually met Marcus at an NA meeting while trying to maintain her sobriety. Thus it appears that Marcus pressured Smyth to sell heroin against a natural predisposition, and the entrapment defense may excuse her conduct.

Objective Entrapment

The objective entrapment defense focuses on the behavior of law enforcement, rather than the individual defendant. If law enforcement uses tactics that would induce a reasonable, law-abiding person to commit the crime, the defendant can successfully assert the entrapment defense in an objective entrapment jurisdiction. The objective entrapment defense focuses on a reasonable person, not the actual defendant, so the defendant’s predisposition to commit the crime is not relevant. Thus in states that recognize the objective entrapment defense, the defendant’s criminal record is not admissible to disprove the defense its main focus is on the officers behavior.

Example of Objective Entrapment

Smyth has a criminal record for prostitution. A law enforcement decoy offers Smyth $10,000 to engage in sexual intercourse. Smyth promptly accepts the lucrative offer. If Smyth’s jurisdiction recognizes the objective entrapment defense, Smyth may be able to successfully claim entrapment as a defense to prostitution. A reasonable, law-abiding person could be tempted into committing prostitution for a substantial sum of money like $10,000. The objective entrapment defense focuses on law enforcement tactics, rather than the predisposition of the defendant, so Winifred’s criminal record is irrelevant and is not admissible as evidence. Thus it appears that law enforcement used an excessive inducement, and entrapment may excuse Smyth’s conduct in this case.

 

Law Enforcement personnel must be knowledgeable of the laws in their state as relates to entrapment and which of these types of entrapment does their state have as their  entrapment law.

 * Information provided for this writing was mostly provide from the knowledge and experience of 41.5 years in the Criminal Justice Field and 24 years as a Licensed Attorney. A few specifics were taken from the following text book.

 

                                                                  Reference

Hails J. (2014). Criminal Evidence. Stamford CT. Cengage Learning.

 

 

 

 

 

 

  An Explanation of Summary Judgment and Qualified Immunity

 

By: Dr. Peter A. Barone Esq.

Ø Whenever there is a lawsuit based upon an allegation that an officer has committed a Constitutional Violation such as excessive force as an unreasonable seizure of the person under the 4th Amendment, two legal strategies are used to defend the officer and have the case thrown out before it ever gets to trial.

Ø The first strategy is Summary Judgment. In a summary judgment motion, the attorney for the officer asserts that even if the court takes the story of the person suing the officer as true, [though the officer may not agree with that story], the officer did not do anything unconstitutional and the officer is entitled to summary judgment. I sometimes refer to summary judgment as a green light as it is the court’s agreement that the officer’s actions were constitutional.

Ø In some cases, a court will disagree and say that the officer’s actions under plaintiff’s story would be unconstitutional. The officer’s lawyer then proceeds to the second strategy, Qualified Immunity. Essentially, qualified immunity means that even if the officer’s actions are unconstitutional no court that has jurisdiction over the officer has considered a similar case and therefore the law was not clearly established, thus an officer would not know that he or she was acting unconstitutionally. In cases where the law is not clearly established, the officer gets Qualified Immunity and the case against the officer is dismissed.

Ø In some cases, the courts skip the first question (Summary Judgment) and do not decide whether the officer’s actions were constitutional or not. The court simply proceeds to the second question and determines that the law is not clearly established and dismisses the constitutional claim brought against the officer.

          Qualified Immunity Defense

•      Courts have often grappled with whether a defense of qualified immunity is available to officers confronted with making a split-second decision as to whether or not to use deadly force in response to what reasonably appears to them at the time to be a deadly threat from a moving vehicle. 

•      In a case involving the roadside killing of a man by an Alaska State trooper while investigating a suspicious car parked along a highway, a federal appeals court ruled that acting with deliberate indifference is not an adequate standard to constitute conduct "shocking to the conscience" for purposes of stripping the trooper of the defense of qualified immunity on due process claims by the decedent's family. Porter v. Osborn(9th Cir. 2008). 

•      Instead, the court stated, it must be shown that the trooper acted for the purpose of causing harm, which is unrelated to law enforcement objectives. 

•      The officers found the decedent asleep inside what they thought was an abandoned vehicle, and woke him with demands that he exit the vehicle, pepper spraying him, in response to which he reacted in pain, driving his vehicle slowly towards the patrol vehicle, whereupon a trooper fired five shots and killed him. 

•      Because the trial court, in denying a motion for qualified immunity, used the deliberate indifference standard rather than the more demanding measure of culpability of whether the trooper "acted with a purpose to harm" the man "without regard to legitimate law enforcement objectives," further proceedings were required.      

•      In Green v. Taylor(Unpub. 6th Cir.), the court reasoned that if a vehicle had come to a stop with the engine running, and suspects in the car had their hands in the air or on the steering wheel when officers approached, then an officer who shot and killed a 16-year-old in the vehicle would not have acted reasonably. 

•      If, on the other hand, as the officer claimed, the car was backing up, and threatened the safety of the officers or others, the result could be different. Genuine issues of disputed material fact, therefore, barred qualified immunity for the officers.

 

 

 

 

  

 

WITHHOLDING OF ADJUDICATION IN CRIMINAL CASES

UNDERSTANDING THE CONCEPT OF WITHHOLDING OF ADJUDICATION IN A CRIMINAL CASE

By: Dr. Peter A. Barone Esq.

Most people do not fully understand what is mean by the concept of ‘withholding of adjudication” in a criminal case. There are statutes which directly address this issue and some attorneys are not fully aware of exactly the guidelines are when discussing the issue of “Withholding of Adjudication” in a criminal case.

When examining the Florida Statutes, it is demonstrated that Florida judges have a special authority which has been vested upon them by the legislature to “withhold adjudication” in a criminal matter pursuant to F.S. §948.01. This particular statute provides the court with the ability to withhold adjudication after the imposition of a probation sentence without imposing upon the defendant a conviction and also addressed the collateral consequences that accompany a conviction.¹ This judicial election can have far-reaching implications not only in the criminal arena, but also in civil matters due to the affect an adjudication of a conviction can have on an individual’s profession and ultimately their life.

A good number of Criminal Law practitioners have traditionally viewed a withhold of adjudication as a logical compromise for the amicable resolution of criminal cases which usually result from a plea bargain. In those cases, the defendant consents to the payment of fines and a term of probation in exchange for the state’s acquiescence of a withhold of adjudication. Once the term of probation is successfully completed, the court is divested of jurisdiction and there is no adjudication of guilt.²

An examination of F.S. §948.04 (2) provides that upon the termination of the period of probation, the probationer shall be released from probation and cannot be sentenced for the offense which probation was allowed. In these cases, withholds of adjudication have promoted judicial economy and leniency for uncharacteristic behavior by removing the conviction from the adjudicatory process to wit plea bargaining.

When dealing with cases involving charging of misdemeanors, withholds have allowed defendants to escape collateral consequences such as mandatory driver license revocations for drug convictions or points associated with traffic infractions which are all very costly to the defendant. In the case of qualifying felonies, defendants escape the forfeiture of civil rights such as the right to vote, hold public office, and serve on a jury which have a life-long negative affect upon the individual and their lives; this can also have a negative effect on their families.³

When discussing this specific topic, it has to be understood that the effect of a withhold of adjudication has also had far reaching effect in practical application. For example, a person who has had the benefit of a withhold of adjudication could traditionally deny having a conviction, even when subject to deposition or while testifying in court.⁴ In addition, defendants could safely check the “no” box on job applications when asked if they had ever been convicted of a criminal offense. This is extremely important in today’s society where one single negative issue on an application can result in the person not even being possibly considered for needed employment.

The benefit of the withhold has been the focus of attack in recent times. Specifically, limiting language has been written into a number of statutes that voids the advantage of the withhold provision. The most dramatic is the language in the DUI statute which expressly prohibits the court from withholding adjudication which has been defended by many of the existing groups against drunk driving.⁵

When examining the sealing and expunction statutes they also preclude the removal from the public record of a number of offenses regardless of the withholding of adjudication. The most notable offenses are those that involve acts of domestic violence. Other disqualifying charges include arson, aggravated assault and battery, illegal use of explosives, child and elderly abuse, hijacking and car-jacking, kidnaping, homicide and manslaughter, sexual offenses, communications fraud, offenses by public officers or employees, robbery, burglary of a dwelling, stalking, and attempts or conspiracies to commit the underlying offenses.⁶

It is important for the practitioner and also anyone charged with a crime to review the statutes involving the “Withholding of Adjudication” so you are knowledgeable regarding what you can and cannot have happen if you enter into a plea bargain.

In 2004, the legislature promulgated F.S. §775.08435,⁷ which precludes courts from applying withholds in capital, life, or first degree felonies and limits the application of withholds for second degree felonies by requiring either a written motion from the state attorney or express judicial findings made pursuant to F.S. §921.0026. This statute is in effect for all noncapital felony offenses committed after October 1, 1998. Under F.S. §921.0026, the court may consider mitigation to include the terms of a plea bargain, the defendant’s minor role in the offense, the incapacity of the defendant to appreciate the criminal nature of his or her conduct; the defendant’s need and amenability for specialized treatment for a mental disorder, the need for the payment of restitution, the victim’s role in the incident; duress of domination over the defendant; the compensation of the victim prior to the identification of the defendant; the defendant’s cooperation with the investigation, the unsophisticated manner of the isolated incident; and the youth of the defendant and the inability to understand the consequences of his or her actions. Interestingly, the statute specifically precludes the consideration of the defendant’s intoxication and substance abuse or addictions.

If both the practitioner and the individual being charged with a criminal offense review and understand what the statute says regarding the “Withholding of Adjudication” this allows for less of a chance of any misunderstandings which may occur during sentencing which was a result of a plea bargain. It also assists in the person charged with understanding what they may need to provide the attorney who in turn provides the judge with that would meet the level of mitigating circumstances so that the court can fully assess the facts presented and make the determination if it may be a second degree felony as to whether they feel there is a justification to provide a written explanation to have deviated from the statute pertaining to the sentencing and granting of a “Withhold of Adjudication” in the instant case.

                                                 References

 1. Fla. R. Crim. P. 3.670.
 2.See Thomas v. State, 356 So. 2d 846, 847 (Fla. 4th D.C.A. 1978), cert. denied, 361 So. 2d 835 (Fla. 1978).

3. Snyder v. State, 673 So. 2d 9 (Fla. 1996).

4 Brown v. State, 787 So. 2d 136 (Fla. 4th D.C.A. 2001)

5. Fla. Stat. §§316.656, 784.07, and 893.135(3).

6 Fla. Stat. §806.01 (arson); Fla. Stat. §784.021 (aggravated assault); Fla. Stat. §784.045 (aggravated battery); Fla. Stat. §790.001(5) (illegal use of explosives); Fla. Stat. §827 (child abuse); Fla. Stat. §860.16 (hijacking); Fla. Stat. §787 (kidnapping); Fla. Stat. §782 (homicide and manslaughter); Fla. Stat. §§794, 800.04, 827.071, 787.025, 796.03, 825.1025, 847 (sexual offenses); Fla. Stat. §817.034 (communications fraud); Fla. Stat. §839 (offenses by public officers or employees); Fla. Stat. §812 (robbery and ca-jacking); Fla. Stat. §810.02 (burglary of a dwelling); Fla. Stat. §784 (stalking).

 

 

Constitutionality of Law Enforcement Obtaining Cell Site Location Information from cellular Providers (United States v. Graham 2016).

                    United States v. Graham (5ht Cir. 2016).

This is important and necessary information pertaining to the use of cellular telephone companies to obtain necessary information during an investigation to determine if you can place an individual in an area close to a crime scene due to their phone using a tower to send and receive phone calls and text messages.  It provides a definitive answer as to whether or not there is a Reasonable Expectation to Privacy as relates to this information being held by the Cellular Company.

Constitutionality of Police Obtaining Cell Site Location Information (CSLI) from cellular providers without obtaining a Search Warrant. The CSLI provides indicates which cell tower transmitted the cellular signal that a particular cell phone used to make or receive calls of text messages.

Ø  The government obtained the CSLI information regarding the defendant’s phone in accordance wit the Stored Communications Act (CSA) which states that in order to obtain non-content records the government must demonstrate either 1. Probable Cause for a warrant or 2. Specific and articulable facts showing that there are Reasonable grounds to believe that the records are Relevant and Material to an on-going criminal investigation for a court order 18 U.S.C. S2703(c) (d) (2012).

 

Ø  In this case the government used the Second Method based on Reasonable Grounds that the records are relevant to a ongoing criminal investigation. The records were obtained from Spring/Nextel and used by the government to place the defendant in the area of certain (Armed Robberies) at the time the robberies occurred. Graham filed a Motion to Suppress and the District Court’s decision was appealed to a panel for the 4^th Circuit Court of Appeals. The Panel Held: that the Probable Cause and warrant are required to obtain such information because the government acted in good faith relying on the CSA the evidence should NOT be suppressed.

 

Ø  The government appealed the ruling and asked the 4^th Circuit for a Hearing en Banc (all judges on the court of appeal to be present) based on the belief that (a warrant should NOT be required because a person has NO Reasonable Expectation of Privacy) in CSLI and the 4^thCircuit agreed.

 

Ø  ISSUE: Whether the government invades a person’s reasonable expectation of privacy when it obtains from a third party the third party’s records which permit the government to deduce location information.

 

 

Ø  COURT’S ASSESSMENT: Since the government did not surreptitiously view or listen to or record or engage in any direct surveillance of the defendant then  the case law that concerns Electronic Surveillance of individuals is NOT applicable. There must be an examination precedent concerning the (Third Party Doctrine.)

Ø  In Smith v. Maryland (1979) the Court noted that it has long held that an individual enjoys NO Fourth Amendment Protection in information he voluntarily turns over to a third party. In United States v. Miller (1976) The (Third Party Doctrine) applies even when “the information is revealed” to a third party as it assertedly was here “on the assumption tat it will be used only for the limited purpose and the confidence placed in the third party will not be betrayed.

Ø  The Court noted that when a person places a cellular phone call they voluntarily convey this CSLI to cellular provide and that information is (obtained and retained in the ordinary course of business) rather than for investigatory purposes.

Ø  The Court then referred back to both Smith and Miller and stated that in Smith Under the Third Part Doctrine an individual can claim “no legitimate expectation to privacy” in information that he has voluntarily turned over to a third party. Under Miller The Supreme Court has reasoned that by revealing his affairs to another “an individual takes the risk that the information will be conveyed b that person to the Government. Under Smith The 4^th Amendment does NOT protect information voluntarily disclosed to a third party because even a subjective expectation of privacy in such information is “not one that society is prepared to recognize as Reasonable.” The government does NOT engage in a 4^th Amendment “Search “when it acquires such information from a third party. In aa reasonable addition they advised that other Circuits such as the Fifth and Sixth and Eleventh have ALL held that “a person does NOT have a Reasonable Expectation of Privacy” in their CSLI that is captured and stored by a cellular provider.

Ø  COURT’S HOLDING: Defendant’s did NOT have a (Reasonable Expectation of Privacy) in the CSLI and as such NO SEARCH WARRANT IS NEEDED to obtain information; the Court Order provided for in the CSA was SUFFICIENT to lawfully obtain such information.