Stephen G. Cobb - Florida Criminal Defense Lawyer

False Capital Sexual Battery Offense Accusations Examples


Disclaimer: This article is in response to questions frequently asked of Mr. Cobb and is an unedited dictation transcript. Just like talk to text on your smartphone, there may be misspelled words or sentence fragments.

Welcome back to Florida Criminal Law TV. I am your host, Attorney Stephen G. Cobb. We have been talking today about sex offense cases and different types of defenses as well as one warning of how not to rely on a single defense and think to yourself everything is okay. The way people underestimate risk is absolutely mind-blowing in sex offense cases. It really is after all this time. It reminds me of people who are terribly afraid to fly. They will not fly for any reason and we are talking like the odds of dying due to an accident with a plane or a crash or anything like that is measured in thousands of a percent. In other words, it is more than 99.99 that you are going to make it there okay. Yet people will overestimate the risk of death or injury in a plane while they are driving without a seatbelt at high speed through school zones. One is more dangerous than the other but people will often mis-weigh risk.

Now, with criminal cases, I want to relate to you something that actually happened to someone. They had a relationship and the relationship ended. They had two small children. And after the relationship ended, both of the parties started seeing different people. One of them actually married someone else, the other one started seeing someone somewhat seriously. And the parties kept communicating because they have kids in common. That is kind of normal. You have friends who are in that situation or you are in that situation or you know somebody who is in that situation. In other words, it is very common and we all know about it. What happened was the two parties started to rekindle an interest in each other. And one of the parties decided that they would end the relationship with their current spouse in order to rekindle and get back with the other party. They discussed this for a while and then the other party decided “I want to do that”. Well, this caused the first party to become thermonuclear angry. I mean just in a blind rage. And then, amazingly, suddenly there is an allegation that the party that did not want to reconcile had molested not one but both of the children who are under 12.

Now, if you remember our discussion earlier with 794.0114A and 4B, capital sexual battery, specifically in this case 4B, person in familial authority, child is under 12. What the party who wanted to reconcile but blew up a marriage and did not get to reconcile and became angry did was encourage the children to falsify a sexual complaint against the other party who was a parent. Not only that, the cops bought it. It gets worse. What happened was a controlled phone call was made. What is the controlled phone call? Now, many people believe that if you record a phone conversation, it is illegal unless both parties consent. If you are in Florida and the other party is in Alabama across the stateliness, that is illegal. If you are in Florida and they are in Florida, only one party needs to consent so the cops have this nice little form, they have you sign it if you are a complaining witness and that was done here. And they record the phone call. And it always goes something like this, “I would like to put this behind us either for a person or for the child. And if you would just say that you are sorry, that will do it”, and they go on and on and on and on. And guess what? The person not wishing to make waves and certainly not wanting the law enforcement investigation, the processing goes like this. “Oh my God, I will say anything not to have to go through that”.

And so what they usually end up saying is something like, “Gosh I am sorry if there was any offense. Nothing like that ever happened but gosh, I am sorry if there was a misunderstanding”. On a recorded phone call, the defendant admitted – the defendant did not admit at all but notice how it is translated. If you get a call from someone saying that you or someone you love has victimized them or a child or someone else and if gosh, you or the person who is accused would just say they are sorry, do not fall for that trap. That is a recorded phone call. The thing you do, the moment you hear of the word sex and any form of offense in the same sentence is you immediately contact a skilled criminal defense lawyer preferably a Florida Bar board-certified specialist. And one of the first things they should do is they should have you sign a Notice of Intent To Invoke Rights and demand to notify counsel. That should be signed by the person investigated, your lawyer should have a copy of it, it should be gated, your lawyer cannot sign it for you; it is something the person who is on the receiving end of the accusation must sign. And what my practice is I immediately contact the law enforcement officer and that is usually not something I delegate to co-counsel on the case. That is something I usually do myself. And we absolutely make sure that their agency, department or sheriff’s office gets a copy of that because controlled phone calls illustrate a critical point about criminal law and this is how I am going to conclude this first series of defenses and sex offense cases special edition of Florida Criminal Law TV and it is simply this and it is not right, it is not fair, it is just true, which is a problem. The truth in criminal court does not matter.

So, we have covered a lot of ground today and I want to leave you with one thought as we finish up this first section of Florida Criminal Law TV on Sex Offense Defenses and it is simply this. It is somewhat shocking and then will make sense. In criminal court, the truth does not matter. It never has, it never will. Witnesses are sworn to tell the truth, defendants are sworn to tell the truth if they testify or enter a plea of no contest, members of the venire panel are sworn to tell the truth before a jury selection, and jurors are sworn as well. But the reality is the truth is subjective. This is why the truth does not matter in criminal court. The truth does not matter simply because if you take an atheist, a fundamentalist Christian minister and a hardcore conservative Islamic cleric, you can hook them up to the most advanced lie-detector test in the history of the world with a 100% accuracy and ask them the same question, “What happens when you die”, and all three are going to be truthful, yet they are going to give three completely different responses. So, how is that possible? It is because in their mind, that is the truth.

When we are cross-examining witnesses on the stand, they might say something like, “I remember the eyes”, another witness might say, “I remember the clothing, I could not tell you a thing about the eyes”, third witness, “I remember the gun, I could not look at anything but the gun, I could not tell you what the person look like, male or female, eyes, eye color, clothing, nothing, I just remember the gun”. And because of how the brain processes information, it is important to understand in criminal court that the objective real truth does not matter; what matters is what the police officer believes. That determines whether they believe there is probable cause to believe a crime has been committed. What matters is what the judge believes the law is, that determines how the judge rules. It also affects whether the prosecutor votes to indict by signing an information of indictment or jury votes, and I man literally votes with the chairperson to convict or acquit. So, a lot of what we do has to do with beliefs. One of the most important beliefs of the beliefs that you carry inside of your own head consist only one of the biggest problems, as I have mentioned before, is people underestimating risk in criminal cases.

If you or someone you love is being investigated, even if it is one of those scenarios where you are being told, “Well, we got this information, we are not sure we believe it, we would like to know your side of the story, there should be a big fat red light blinking above the person’s head who is telling you that if they are a law enforcement officer, you should hear a siren as well as 9 or 10 other things that say, “Warning, contact a criminal defense lawyer”. My name is Stephen G. Cobb. I have been practicing criminal law since 1990. I truly enjoy educating people about the law through Florida Criminal Law TV. I hope this segment and this entire series on sex offenses has been helpful. If I can answer questions and you or someone you love has an investigation or a case pending, feel free to give me a call. I will be happy to talk with you.

Disclaimer: This article is in response to questions frequently asked of Mr. Cobb and is an unedited dictation transcript. Just like talk to text on your smartphone, there may be misspelled words or sentence fragments.

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Stephen G. Cobb, Esq.

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