Category Archives: Evidence

That Admission Might Not Be Used Against You

The Corpus Delecti Rule

Florida is one of a few jurisdictions where the “corpus delecti” rule still applies to the benefit of criminal defendants. In a nutshell, “The rule provides that before an admission may be allowed into evidence, the State has the burden of offering direct or circumstantial evidence independent of the admission that establishes the corpus delicti of the crime charged.” State v. Allen, 335 So. 2d 823, 825 (Fla. 1976). The corpus delecti is substantial evidence tending to show the commission of the charged crime. This standard does not require the proof to be uncontradicted or overwhelming, but it must at least show the existence of each element of the crime.

As Applied to Juvenile Possession of a Firearm

The Second DCA has applied this rule to a juvenile’s possession of a firearm. Essentially, it is illegal for a juvenile to simply possess a firearm, with a few exceptions, and entirely illegal for a person under 24-years-old to possess a firearm if they have been previously adjudicated delinquent to a charge that would have been a felony if charged as an adult. An element of either charge is actual possession of the firearm.

In A.P. v. State, 43 Fla. L. Weekly D1508a (Fla. 2d DCA 2018), the defendant was charged with such possession. However, the weapon was found on the floor of a car that was jointly occupied by A.P. and at least one other individual. As such, it was your classic constructive possession scenario. The State failed to produce any evidence of possession by any of the individuals such as fingerprints, DNA, or statements by a co-defendant. However, A.P. did admit to ownership of the firearm.

The Court (Hillsborough Judge Twine Thomas) allowed the admission into evidence. The Second DCA indicated that this was in error:

“The evidence here showed that A.P. and two passengers were together in the car, and A.P. was driving. The gun was hidden from sight under the floor mat of the front passenger seat. We have repeatedly held that mere proximity to contraband in a jointly occupied car is not sufficient to sustain a conviction based on constructive possession. See K.A.K, 885 So. 2d at 407-08. Thus, the only independent proof remaining to support any of the inferences necessary to establish constructive possession is A.P.’s admission. This brings us full circle to Ras, which, as stated above, teaches us that this will not do. See Ras, 610 So. 2d at 25; see also Harrison v. State, 483 So. 2d 757, 758 (Fla. 2d DCA 1986) (holding that the corpus delicti doctrine prohibited the appellant’s conviction for possession of a firearm where there was no proof of actual or constructive possession of the firearm apart from the appellant’s confession).”

As such, while it is certainly best to simply abide by the law and, should you fail there, to not say anything without an attorney present, it is possible to avoid a conviction by properly excluding from evidence an admission using the corpus delecti rule to your advantage.

Call Us Today!

If you, a friend, or family member has been charged with a crime, give your board certified attorney a call at 813.397.3965 to see how we can help!

Use of Video and Surveillance Video in Trial

By: Adam L. Bantner, II, Board Certified Criminal Trial Attorney

             In modern society, it is not uncommon for people’s actions to be recorded either with or without their knowledge. License plate readers, red light cameras, public space cameras purchased by local, state and federal agencies, bus and taxi cab videos, police body cameras, and the cell phones of millions of individuals all have the capability to record portions of our lives. As such, criminal practitioners (and trial attorneys in general) must be familiar with the foundational requirements for admission of such evidence. This article will attempt to cover the basics of video evidence admissibility.

            As an initial consideration, the recording must be relevant. Fla. Stat. § 90.401 defines relevant evidence as “evidence tending to prove or disprove a material fact.” [1] In order to meet this burden, the proponent of the evidence must simply identify the fact for which it is offered to prove and that fact must be relevant to the litigation. For example, a convenience store video depicting the commission of a robbery may be relevant because it tends to prove the identity of the perpetrator as the defendant. This is the simple part and, in my experience, is usually not challenged.

            Second, videos are admissible on the same basis as still photographs.[2] In other words, the proponent of the video must lay a foundation that the video fairly and accurately represents a material fact or issue. A common misconception is that the person who took the video must testify in order for it to be admissible; this is simply incorrect. While the person that took the video will certainly have the ability to testify that it fairly and accurately depicts the events that were captured, anyone who witnessed the events recorded have the competency to lay the foundation for the recordings admission into evidence. In H.A. v. State[3], the drugstore employee authenticated the surveillance video. This method of introducing such evidence is known as the “pictorial testimony” theory of admissibility.[4]

            Additionally, video evidence may be admissible under the “silent witness” theory.[5] Under this theory, the evidence may be admitted when the trial court finds it reliable, after having considered the following:

(1) evidence establishing the time and date of the photographic evidence;

(2) any evidence of editing or tampering;

(3) the operating condition and capability of the equipment producing the photographic evidence as it relates to the accuracy and reliability of the photographic product;

(4) the procedure employed as it relates to the preparation, testing, operation, and security of the equipment used to produce the photographic product, including the security of the product itself; and

(5) testimony identifying the relevant participants depicted in the photographic evidence.[6]

In Lerner v. Halegua,[7] the proponent of video failed to meet its burden under either theory. In Lerner, Mr. Halegua argued that surveillance video depicting Mr. Lerner spreading bullets outside of the door to a Mr. Winston’s[8] condominium should be admitted under either theory. However, the court found and held:

Mr. Winston did not personally observe the events depicted on the surveillance videos or the photos. The record here reflects that Mr. Winston had no responsibility for the operation, placement, or maintenance of the videocamera in question, and he had no direct knowledge regarding the procedure for retrieving or copying those portions of a video record that might be pertinent to the investigation at issue here.

 

In the absence of the photos admitted over Mr. Lerner’s objection, the evidence at the hearing in the civil case fell short of the “clear and convincing” showing necessary to support the dismissal of Lerner’s claims and defenses for fraudulent or unconscionable litigation misconduct.[9]

 

            In conclusion, the admission of video evidence is relatively simple. If there is a witness that observed the events recorded, simply lay the foundation through that witness. If there is not such an eyewitness, you can still admit the evidence under the “silent witness” theory by establishing the relevance and reliability of the video using the factors indicated in Wagner.[10]

[1] Fla. Stat. § 90.401 (2016)

[2] Charles W. Ehrhardt, Florida Evidence (2009), Section 401.3

[3] H.A. v. State, 24 So.3d 752 (Fla. 3d DCA 2009)

[4] Wagner v. State, 707 So.2d 827, 829 (Fla. 1st DCA 1998)

[5] Id. at 831

[6] Id.

[7] Lerner v. Halegua, 154 So.3d 445 (Fla. 3d DCA 2014)

[8] Winston was not directly involved with the litigation between Mr. Lerner and Mr. Halegua.

[9] Id. at 447-48.

[10] Wagner v. State, 707 So.2d 827, 831 (Fla. 1st DCA 1998)