Married life is grand. And among the various perks in Florida is that your spouse cannot be forced to testify against you in violation of your spousal privilege. Great! But what does that really mean?
Most important: Florida Statute 90.504 only covers conversations between the two of you that were intended to be in confidence. Pillow talk, clearly covered and you can prevent your spouse from testifying about that conversation – even if you are not longer together and they want to testify about that intimate conversation.
BUT, if you are talking at a party or even with other people present and involved in the conversation – easy to argue those words were not meant to be confidential to your spouse. There is no privilege it is an action between spouses, like a divorce or one is alleged to have battered the other. Also if the spouse who wants to introduce the statement is the defendant – their constitutional rights to defend themselves trump this right.
Some additional tidbits on the topic:
-cell phone records do not fall within this privilege
-this does not bar law enforcement from using information that they get from a spouse to gather information based on that information
-privileged communications can include written communication clearly directed to the spouse.
What will jury think of the evidence against George Zimmerman? No one can know, but I keep thinking about how they will perceive it. Jurors are NOT bloggers. For one thing they don’t care that much. I don’t mean they do not take their oath seriously – I mean they are not necessarily freaks about details. They are not the people who populate the social media (whom we need desperately, someone has to bring us all that stuff.)
Jurors are less likely to be detail people as big picture people. Themes matter, nuances not so much. Think about how they get evidence. They cannot sit down at their computer and dissect the 911 calls, compare to the interviews, rewind the tape six times…They get the evidence as the State introduces it through witnesses. This usually means chronologically, and always with testimony in between. It is unlikely that the jury will hear the 911 tape on the same day of testimony that they see George’s videotaped interview with cops, for example. They will get to listen/see/perceive each of those things once. Once. If they tell the truth during jury selection, it is likely to be the first time they have listened/seen/perceived them.
Lastly, jurors go into deliberations with physical evidence. If they want to hear or see a recording or witness testimony, they ask the Judge and everyone watches together in the courtroom. Jurors are like all people, they don’t like to rock the boat —most juries don’t ask. Most juries do not ever hear a single word over that they heard during the trial.
Not good or bad, just how it is…jurors don’t receive information the way we are so they cannot analyze evidence the way we might expect, and that can lead to surprises.
It is clear to me that not all “victims” are honest, and not all cops are honest either. It is not rare for an arrest to be made in a domestic violence situation and for the truth to come out that things were a bit more complicated than it looks like from the police report.
Sometimes, after the dust settles, the person who pressed charges, or who just said things that made the cops take action, does not want to continue being involved in the prosecution.
Usually the local State Attorney’s office will have a procedure for making allowing a victim in a domestic violence case to “drop” the charges, and may require a class on abuse and that is all. Sometimes, either because of a prior problem or other indication that there is a bigger problem, the prosecution will refuse to drop the case.
Ultimately, with a couple of rare exceptions, a case of battery cannot be proven at trial without the testimony of the “victim”. The prosecution may issue a subpoena to force the alleged victim to come to testify, and offer 911 tapes or other witnesses to attempt to prove an unwanted touching.
If a person making an allegation later wants to acknowledge that they may have exaggerated the circumstances they might want to have their own lawyer come to assist them. They may be able to take the 5th amendment and not answer questions if answering those questions may mean admitting to lying to the police.
While the ongoing conversation on this topic could be helpful..if we decided not to knee jerk and politicize this thing…that appears unlikely.
What gets lost in the discussion are a few points:
1)The Stand Your Ground law…is really a complete self defense law that just happens to have a “stand-your-ground” element to it. Most people successfully using self defense could not have gotten away without using violence..they do not use the stand your ground provision of the self defense statute.
2)The only part of the newer provisions to the self defense law that so far has impacted the George Zimmerman case is the part that dictates law enforcement cannot arrest if there is basis for self defense at the scene and that a Judge will need to sign a warrant in that case. If he was on the ground being beaten, unless he put an hand on Trayvon Martin first, would not be standing your ground – just old fashioned self defense.
3) As soon as a judge determines that a defendant was the aggressor, any attempt at dismissing the case will fail, and a jury will be told at trial that if the defendant is the aggressor they may discount the stand your ground provision. It is more complicated than that, but ultimately this defense is failing in lots of cases where the defendant attacks first.
Let the conversation continue.
Everyone charged with a misdemeanor in Florida has a right to a jury trial within 90 days, a felony in just short of six months. It gets complicating determining when that clock starts ticking, but if you are arrested at the scene, that is when.
If the trial does not start in that time frame, the defense files a motion – and then the state has a recapture period of a few days to get the trial started. If no trial starts, another motion can get the case dismissed. BUT – none of this applies if the accused as waived his right to speedy trial.
The problem is that usually the first court date, or arraignment , is many weeks after arrest…and that starts the prosecution obligation to turn over evidence. This means the defense lawyer could be forced to go to trial without knowing everything – because the judge is going to keep the case on the docket if “speedy is not waived”. This is how most cases end up waiving speedy.
The trick is knowing enough about the case to make an intelligent decision about whether to waive this right…for example if you know a critical witness is out of country or has fled without the prosecution knowing. If there is some way to convince the Judge that the prosecution has not done what they were supposed to, not given discovery timely..well, then you can have your cake and eat it to – the continuance that does not waive speedy rights.
Even when speedy has been waived, as it usually is..filing a demand for speedy after the defense is ready for trial will give the prosecution just 60 days to get their act together and start the trial. This can be used anytime and give a way to get things on the fast track.
Injunctions are often filed after that “last fight”, the one that really means the end of the relationship, and unfortunately – not on a good note. Often the injunction process is used exactly the way it should be – but sometimes it is used for spite, or vengeance, or to get the upper hand in a divorce case.
If there is a temporary injunction against you and also criminal charges, call a lawyer. The biggest mistake people make is going to this injunction hearing alone and then having testimony during that hearing used in the criminal case. You are being recorded. You may not intend to say anything incriminating, but once the Judge starts talking it is easy to get flustered and end up saying too much.
Injunctions can be fought, even if you cannot say anything because criminal charges are against you, your lawyer can. This means they can question the person trying to get the injunction, and that can really help you fight the injunction and also maybe in your criminal case. The person asking for the injunction must prove the allegations, and often judges are not convinced if it is a he said / she said situation, especially if an impending divorce explains the reasons to lie.
If there will be a divorce or paternity case being opened, sometimes the injunction can be put off to deal with those issues in the other case. Not having an injunction protects you against false allegations of violation, and also makes child contact more practical.
Having any court order that may make you look bad in other proceedings is not what you want, and having a lawyer is the best way to protect your court room reputation.
Diana and Greta Vansusteren discuss Self Defense in Florida
There is a lot of discussion about whether Florida’s seven-year-old “Stand Your Ground” self-defense law will lead – or had led – to injustice in the Trayvon Martin / George Zimmerman case. The “stand your ground” part of the law says if Zimmerman was attacked by Martin, he had the right to meet force with force, including deadly force if that was reasonably necessary to avoid serious harm or death, without making any attempt to get away from the situation.
This does away with the old requirement that if you could turn tail and run – getting away from the attack, you needed to do that first. If George Zimmerman’s claims are proven true he was on his back on the ground at the time of the attack and retreating was not an option, the change to the law may have no effect in this case because he will argue he could not have retreated anyway.
No part of self defense applies if you are the aggressor, unless the force being used against you can reasonably lead to death or serious harm and you don’t have a way to escape…this provision may or may not apply in the Martin/Zimmerman case. Finally, the law states that law enforcement was not authorized to arrest in this situation, without specifically finding evidence against a self defense claim, which certainly seems to have come into play.
Time will tell what the actual evidence is. Did Zimmerman call of the “hunt”? Was he ambushed? Was that nose really broken? More questions than answers for the moment.
Posted in Criminal Law FAQ, Martin / Zimmerman, Murder Cases, Self Defense, Uncategorized
Tagged criminal defense, martin, murder, self defense, self-defense, Stand your ground, zimmerman
And by I, what I mean is “every single lawyer in this town who has fought racial inequality in the criminal justice system”. Some of us for many years. Decades for myself.
A lot of effort to put into ending the career of one police chief. When they swoop back out of town, what will have been accomplished really?
The real systemic bias will remain untouched..and by that I mean the actual Profiling ..the kind done by law enforcement every day. The actual targeting, over-charging, over- prosecuting, and over-sentencing that leads us to a situation in Florida where more than 50% of death row inmates are black men. Blacks make up about 16% of our population. This disparity points to a long standing, pernicious, and entrenched problem. Kicking one police chief out and railroading a ridiculously over-charged Hispanic is not going to change a thing.
We have REAL racial problems. You must get the attention of the entire community..and the current rhetoric is not playing in Lake Mary or most places that are not Eatonville…and it is not their fault that the voices are strident and oft times irrational. Get together the people in central Florida who have been fighting this for years, like the elected Public Defenders, criminal defense lawyers, juvenile justice workers; the front line that understands the result of our racial bias in a system that punishes, ostracizes, and labels for a life time.
I may not be black. but I would put my career in fighting racism in a meaningful way up against most of the local black lawyers who have taken to the bully-pulpit on the Martin/Zimmerman tragedy. Let’s see what they are doing in two years, five years, ten years. I will still be fighting racism in our criminal justice system.
The Stand Your Ground law may or may not apply to the self-defense claim in this case. It seems possible that mutual misunderstandings of intent may have gone on that night. Zimmerman, based on experience and a sense of over-zealous “heroism” thought Martin was doing something he was not. Although there are allegations that Zimmerman was actively pursuing Martin when the physical altercation started, I have not seen any actual evidence. If Martin misperceived Zimmerman’s intentions and reasonably decided to “attack” preemptively, leading to Zimmerman pulling his gun for the first time in fear of death..you could have a situation where both were technically permitted to take violent action. Martin because he had a right to stand his ground, and Zimmerman because he could not flee the more successful attack of Martin.
While it is true that the aggressor cannot take advantage of self defense, IF the aggression (following) had stopped OR if the physical aggression Martin used was the first physical aggression and beyond necessary to avoid harm, and if Zimmerman had not way to get away and was reasonably in fear he would die..well all of those facts will play out and have an effect.
Those few minutes after the dispatch call and prior to the shot will be critical, and every bit of evidence available important.
Who should you call as witnesses at your trial? There are two kinds of witnesses usually:
1)Fact witnesses, people who were there to tell your side of what happened, or who were with you across the county from where the crime took place. These witnesses from the beginning should be asked to write down everything they remember so they can use those notes to refresh themselves months later for trial. You will need to provide contact information to your lawyer also.
2)Reputation evidence. This one is tricky, and many lawyers don’t understand it very well. In Florida, you cannot call a witness to say you are a good person..but you can call a witness who knows you from a relevant “community” about your “reputation for honesty” if you have testified. They may be able to testify about your “reputation” for peacefulness or other characteristics that are relevant. A “community” can be a neighborhood, a place of employment, a church or school community or other defined group. “Reputation” means that they know you and other people who know you and that you have a reputation for this trait. These witnesses need to talk to your lawyer before they testify, because it is a strange way to talk about someone that will not come naturally to them.
Usually it is a good idea for your lawyer to talk to all witnesses before they are listed as witnesses, so that if they are deposed or the prosecutor calls them they understand the areas of testimony expected…the worst thing ever is calling a witness you assume is going to help your case and have them accidentally hurt it!