Stephen G. Cobb - Florida Criminal Defense Lawyer

Trial Defenses, Procedure And Evidence With 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.

Now, in our last segment, we discussed pretrial defenses and now it is time to discuss trial defenses. Obviously, for a specific charge, you are going to have specific types of defenses. For example, in sexual battery, consent is a defense. If certain things are present such as the age of the complaining witness is of lawful age for sexual intercourse. Now, another example of consent defense that would be done at trial because it is a fact defense. Anything that is a legal issue is decided by the judge. Anything that is a fact or not is decided by a jury. If you are thinking so and so was lying, trial defense. That is not a pre-trial defense. An allegation that a witness is being untruthful is absolutely a trial defense.

So, trial defenses are different than pretrial defenses and you have consent for things like battery and sexual battery but consent would never apply in a case, for example, like driving under the influence or a BUI (Boating Under the Influence). Likewise, another defense, which is far rarer in battery cases, is mutual combat. Mutual combat presumes both parties are wrongful so the loser of the fight cannot run to the cops and get the other one arrested because I lost a fight. However, if it is an aggravated battery case, there are some legal rules that basically say, “You cannot use a consent defense”. So, a lot of defenses are specific to that particular charge. So, let’s go over the types of trial defenses that are more broad and common. Now, when it comes to a trial, one of the first things you have when ready for trial is declared at a legal proceeding known as a docket day, sometimes in misdemeanor cases, it might be called “Plea Day” or “Jury Trial Review”.

Usually, the following Monday or a week later on a Monday, you have jury selection. Believe it or not, you have types of defenses related to jury instructions and picking of juries. For example, if you have a juror as a defense lawyer in a defendant that you want on the jury because they gave answers that you think make them a fair juror or even biased in your favor for that matter. What happens is the other side has two types of reasons they can exclude a juror. One is for cause, something the juror said gave rise legally that they can have that perspective juror kicked off of the panel and they cannot sit on the jury. That is known as a Strike For Cause. The defense has strikes for cause as well. You also have something known as a preemptory challenge. That means basically you can kick any juror off for any reason because you just do not like them.

Maybe you do not like the look on their face, maybe you do not like the way they answered a question, maybe you feel like when jury selection was going on, they were not paying attention, they were distracted or maybe they were in a profession that you think makes them conviction prone, whatever, the defense and the prosecution can use a preemptory challenge. Now, there are some limits to that. For example, let’s say the state uses a preemptory challenge to strike someone and that person is female or that person is of a minority race and you look around the jury penal and the room you have, the entire courtroom filled with perspective jurors and there is like one woman, which just never happens, just use an example.

Then, one side tries to strike that one woman. The other side can state we object and the state or the defense has not provided a gender neutral reason for that strike. In a race case where you are using a preemptory challenge and race is an issue, you can say essentially the same thing, “Objection, this is a protected class” and the other side has to give a race neutral logical reason. Now, sometimes you get very logical reasons from the other side and sometimes you get answers that are laugh out of court answers. That is very rare but it does happen. This is a type of defense that people do not normally think about that. It happens on the fly in the moment during jury selection before you actually have the trial but because you are picking a jury that is known as a trial defense.

Another example of a defense that can be used during a jury trial is a motion during the trial or after the presentation of evidence to have an acquittal because of something that happens. Another type of defense that can happen during a trial is a motion for a mistrial. Once I had a major sex offense case go to trial against my advice, and by the way, this is by someone whose family absolutely refused to use coping with stress during the criminal prosecution and fell compelled to tell co-counsel and I know how to do our jobs. They had never tried a case in their life but because some of the family members had law enforcement experience, of course, they knew more than we did. We are just dumb lawyers who have lots of years of experience handling these kinds of cases. That trial did not go very well, the client listened to them, ignored our advice, was convicted, was sentenced to 15 years in prison.

Now, this goes into why we have a system of more than one lawyer on a case. I was doing the presentation and objections and did the closing argument. And when the jury went out, co-counsel leaned over and said, “Stephen, the judge sent back the alternate and dismissed one of the jurors”. We had two alternates on a 6-person jury and you have 6 or 12 depending on whether or not a case is a capital. This was not capital although it was serious and there were only 6. We had two alternates and one of the alternates was setback. I promptly stood up and objected. The judge called that person out, asked if they had begun deliberations and this person said, “Well, we had just started. We were about 2 minutes into it” and judge said, “Okay, no problem” and sent back the juror after the alternate had been back there.

I immediately did a motion for mistrial because the case law on this is blisteringly clear but this was a retired judge who had basically spent entire week yelling at me, yelling at co-counsel, yelling at my client who did not say a word, yelling at the court reporter, yelling at everybody, he even yelled at the jurors. It is a good thing he is retired and too bad, frankly, he was brought out for this case because the rust showed. This person was sentenced to the maximum for the main charge, which is 15 years. But when it went to the first District Court of Appeals, it was reversed. So, one of the key defenses during an actual jury trial with 6 or 12 jurors are objections. What an objection is it’s a lawyer saying something improper and illegal is going on, we are asking the court to cure it. And the format is an objection, and then the judge will either sustain the objection than normally a lawyer will ask for cautionary instruction if it is a serious issue, sometimes now. And if the judge overrules the objection, which the trial judge, in this case, I was just describing, then you have an appellate issue.

Now, the goal is to have an appeal free, error-free trial. And the reality is this does not always happen, so this is why we have objections. So, during a jury trial, you are going to hear both sides objecting. And one of the things you see in movies, media and pop culture is absolutely improper in Florida and this is also why I do not watch movies with lawyers, cops and robbers kinds of things involved because it is always so inaccurate. And you will see a lawyer stand up and go, “Objection, your Honor”, and then they go blah, blah, blah as to all the reasons why they are objecting. Then, you see the other actor representing the other side, jump up and go, “No, your Honor, blah, blah, blah”. Let me tell you how that would work in Florida. With counsel approach, with court security take the jury out, the judge would say, “Members of the jury, we are going to take a short break”, and then, the judge would be saying, “You are both in trouble”. Why? That is known as a speaking objection. You do not do a speaking objection in Florida.

If you have an issue that you need to preserve the record, in other words, you have said objection as a legal counsel but you have to protect the record for appellate purposes, then what happens is the judge may ask you to approach or one or both sides may say, “Your Honor, may we approach”. Well, what happens is the judge will push a button and then an annoying sound will fill the courtroom so that nobody can hear what we are saying at the bench. The court reporter will either move over to the bench in some courts, or if they have a speaker where all parties can be heard, which is usually the case in the modern era, then the court report will have a set of headsets on and be listening very carefully while no one else can hear what is said because that is improper for the jury to hear and then both sides will make their legal arguments about that particular objection. So, that is the type of defense that not only applies to the trial but also can apply to appeal in a criminal case.

Now, in addition to jury trials, you also have bench trials. And when you have bench trials, in my experience, the rules of evidence are somewhat relaxed. Why are they somewhat relaxed? Well, because the judge is making rulings of law as well as rulings on evidence that can be presented before the finder of fact, which is mostly a jury but in the case of a bench trial, is the judge. And the judge is factoring in, they have got experience, they know the law, they know how to filter out what is appropriate and what is not, where a member of the jury does not do it. I once was in a disaster of a trial where co-counsel had failed to file a pre-trial motion to suppress along with failing to send me a copy of discovery; how happy was I, not at all.

So, we go into this and I hear the defendant stating things about asking for a lawyer popped up and objected, it ultimately was sustained after the jury had heard an hour long statement. The judge gave a 60-second curative instruction. This is one of the things we often ask for if an objection is sustained. In this particular case, the judge’s curative instruction obviously did not cure the case and this person was convicted. And I suspect that sooner or later, lead counsel is going to have to answer to that in effective assistance of counsel hearing. I was just sitting in as co-counsel because quite frankly, you do not get to go to trial very often in criminal law and I am a trial expert so I kind of like to go. I like to coach people, I like to be a lead counsel and I did this pro bono. Well, it is important that cases are handled correctly so the lawyers should do a very thorough job with systems instead of making themselves the system pretrial and the same is true during the trial. Now, bench trials, when you do not have a jury present, that same case would have been handled pretty much the same way, I think, by this particular judge but the outcome might have been affected differently because how a judge would disregard that information versus a jury is completely different because one has an experience base that is deep in criminal law, the other, this may be the only time they have ever set foot in a criminal courthouse and they are called upon to find facts.

So, this is important to consider, the difference between a bench trial and the jury trial. Very rarely do you come out of the box with your initial pleadings and set a case for a bench trial. Bench trials are fairly uncommon in non-misdemeanor cases, like felony cases. In juvenile cases, you always have a bench trial and it is not even called a bench trial; it is called a disposition hearing. Juvenile cases are covered under rule 8; criminal cases for adults rule 3. So, there is a lot of terminology difference, there are a lot of time limit differences and other factors. But in adult felony court, you rarely have a bench trial in misdemeanor court more frequently than in adult felony court.

And then, finally, I want to touch on the issue of not guilty by reason of insanity because you can present that kind of a case in front of a jury and take days of testimony because these cases take a while if you do it in front of a jury, or you can do the 60-second bench trial. What the heck is that? Let’s say that we get a case where the defense has a diagnostic evaluation done and somebody is incompetent to proceed, then they become competent because of medication and treatment and then they are evaluated for insanity at the time of the offense, which is very difficult to prove in Florida but it can be done if the people doing the evaluation know what they are doing and usually are looking for experts, people who know what they are doing. So, the defense might get an evaluation. The prosecution may accept it, they may not. They probably, in most cases, are going to want their own evaluator and let’s say that that evaluator disagrees, then the court can appoint a third expert and it does not mean it is going to be 2 to 1 and that is how the judge will rule. It may be 3 and 0, all three of them find that the person is insane at the time of the offense.

Whether it is two or whether it is three or even one, one of the most effective ways to handle that kind of case is with the bench trial and here is a little bit of the procedure. First, the prosecution enters the police reports, the defense does not object and the prosecution closes their case. We discussed this all beforehand, everybody knows what is going to happen because it is obvious. The defense then enters the medical reports, they do not present argument, the defense closes and there is nothing more. The judge then makes a finding of not guilty by a reason of insanity.

So, where does the defense come in? Well, the judge has three things that the judge can do when someone is found not guilty by reason of insanity. Option one, nothing, just let them go. I have never seen that happen. I do not think it happens. I guess it does somewhere; I have never seen it. I have never even heard of it, so although it is in the law, forget it, it is not going to happen. So, the defense comes in because of the other two options. Of the other two options, one is if the person is already in an outpatient treatment program that has defined parameters. They are competent, they are responding to treatment and it is a less restrictive alternative to sending them to a facility in Florida where they are kept involuntarily, then the judge can do that. And that is where the defense comes in. We want to have our client competent, even if they are found insane at the time of the offense because that is the time you are looking at for that type of defense. We want to have an outpatient treatment plan ready with the competent client who is doing well. And then, the court is going to order that they be followed up by the court for 5 years.

The other option is the court can send that person to the state hospital and the treatment there is not going to be cutting edge. I mean it is not even going to be butter knife, I mean it is not even close to cutting edge. If you are trying to cut wood with the plastic fork, it is not the best outcome. So, unless the person is really seriously ill and cannot be released because it is not safe for them or the community, then the judge will order that they are held in the state hospital and are basically words of the state and they will try and get the person competent. And then, once the person attains competency, there will be a hearing, then they can be released into the community and the court follows up with them for 5 years, again, to make sure that they are going to be okay and not be a danger to themselves or others. So, what we want to do in those kinds of cases is we want to get that person competent so that if they are found not guilty by reason of insanity, we can do a real quick 60-second bench trial on the NGI issue and have an option for the court that is safe for our client as the community.

So, here are the basics of trial defenses. We have covered bench trials including not guilty by reason of insanity, we have covered jury trials but again, I cannot add this enough time or with enough intensity, each charge, depending on the charge, will have trial defenses specific to that charge. For more information, of course, ask your legal team about what defenses apply and we will be more than happy to share that 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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Florida Criminal Defense Legal Group
Stephen G. Cobb, Esq.

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