Category Archives: Trial

Is That 9-1-1 Call Going to Get Admitted into Evidence?

By: Adam L. Bantner, II

Board Certified Criminal Trial Attorney

You would think that the answer to this question would be a nice and simple yes or no. However, like most things in the law, it’s much more nuanced than a non-lawyer may initially believe. If you’re a lawyer reading this, you know that the answer is “it depends.”

9-1-1 Call Has Confrontation Issues

As an initial matter, the United States Constitution guarantees a criminal defendant the right to “confront” his or her accuser. This was interpreted by the U.S. Supreme Court to require a defendant to have the ability to cross-examine a person who makes testimonial statements. Crawford v. Washington, 541 U.S. 36 (2004). In other words, an out-of-court statement, which is testimonial in nature, is only admissible if the witness is unavailable to testify and the defendant had a prior opportunity to cross-examine the witness.

So what is a “testimonial” statement? Again, it’s not as simple as you may initially believe. The courts have developed a “primary purpose” test to determine whether an out-of-court statement is testimonial. If the primary purpose of the statements is to enable law enforcement to meet an ongoing emergency, the statements are not testimonial. 9-1-1 calls made for the purpose of summoning law enforcement to respond to a crime that already occurred or that is in progress are not testimonial by that definition. Davis v. Washington, 547 U.S. 813 (2006). On the other hand, statements taken by police officers in the course of interrogation are “testimonial” and subject to the Confrontation Clause when the circumstances indicate there is no ongoing emergency and the primary purpose of the interrogation is to establish or prove past events relevant for later prosecution.

As such, most 9-1-1 calls will be deemed non-testimonial and not subject to exclusion under Confrontation Clause analysis. Of course, some portions of any given call may be “testimonial” while others are not. Therefore, a careful analysis of all the statements made during a call should be scrutinized for confrontation issues.

But is the Call Hearsay?

Generally speaking, even if a statement passes Confrontation Clause analysis, it is still subject to exclusion if it is hearsay and does not satisfy any exceptions to the exclusion of hearsay. Fla. Stat. 90.802 holds that hearsay evidence is inadmissible.

Fla. Stat. 90.801 states, in relevant part:

(1) The following definitions apply under this chapter:

(a) A “statement” is:

1. An oral or written assertion; or

2. Nonverbal conduct of a person if it is intended by the person as an assertion.

(b) A “declarant” is a person who makes a statement.

(c) “Hearsay” is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.

With regards to hearsay evidence, the first determination a court must make is for what purpose is the evidence offered. If it’s offered for the truth of that statement, it is hearsay and inadmissible. If it’s offered for another purpose and the evidence remains relevant, it’s admissible. For example, if a 9-1-1 caller states, “the driver ran a red light before crashing into my vehicle,” that statement, when offered by the State to prove that the defendant ran a red light, is inadmissible unless it satisfies an exception to the exclusion of hearsay evidence. On the other hand, a 9-1-1 caller’s question about whether he needs to remain on scene is not hearsay because it’s not proof of anything relevant to a charge.

As can be seen just from the definitions of hearsay, most statements made to a 9-1-1 operator will be hearsay. Information such as the identity of the perpetrator, what he/she did, what he/she looked like, where the crime occurred, etc. would be offered by the State to prove the content of those statements.

But that doesn’t end our inquiry.

But is the 9-1-1 Call an Excited Utterance?

Fla. Stat. 90.803 defines an “excited utterance” as “A statement or excited utterance relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” This type of statement is not inadmissible into evidence even though the declarant is available to testify at trial.

The rationale behind this exception to the hearsay rule is that a person who is excited as a result of a startling event does not have the reflective capacity essential for conscious misrepresentation. Therefore, statements that are made by a person who is in a state of excitement and has not had the opportunity to engage in reflective thought are considered to be essentially spontaneous and have sufficient guarantees of truthfulness. As long as the excited state of mind is present when the statement is made and there has not been an opportunity to engage in reflective thought, the statement is admissible. Moreover, courts have held that this excited state may exist a significant length of time after the event though no bright line test has been established.

Florida’s appellate courts have offered guidance in determining whether the necessary mental state exists by identifying a host of relevant factors which bear on the determination: the length of time between the startling event and the statement; the age of the declarant; the physical and mental condition of the declarant; the characteristics of the event; and the subject matter of the statements. Of course, the burden of establishing that a subject statement sufficiently meets the conditions so as to be deemed an “excited utterance” is upon the proponent of the evidence. Moreover, if the time between the startling event and the statement is long enough to permit reflective thought by the declarant, the offering party has the burden of demonstrating that the declarant did not actually engage in reflective thought, presumably a difficult burden to meet.

Generally speaking, 9-1-1 calls made at the time of the crime or immediately thereafter will meet the requirements for the excited utterance exception to the bar on admission of hearsay evidence. However, when the call is delayed and the person is no longer under the stress and excitement of the call, it will be excluded.

State v. Gotschall

In State v. Gotschall, 27 Fla. L. Weekly Supp. 475a (Osceola Cty. Ct. July 15, 2019), the trial judge had to consider whether a 9-1-1 call, relaying the theft of a service dog, was admissible into evidence.

The call was made 30 minutes after the alleged crime and relayed information such as the location of the crime, the sex of the assailant, names of witnesses, locations of video cameras, and the victim’s personal identity information.

In an extremely well-reasoned opinion, the Court excluded the evidence. As an initial matter, the court found that the call was non-testimonial because the primary purpose of the call was to meet an on-going emergency and to summon law enforcement to the scene of the crime. However, the court found that the call was hearsay because the prosecutor wanted to use the statements made to prove that, in fact, the assailant was female, that the victim’s dog was stolen from her, and the location of the crime. It further held that the statements were not excited utterances because there was no evidence that the caller was still under the stress of the event and that the caller, in the 30 minutes before the call, did not engage in reflective thought relative to the crime.

Valrico Trial Attorney

Adam L. Bantner, II is a board certified criminal trial law attorney. He is conveniently located in the heart of Valrico and can handle your criminal defense matters in Hillsborough, Polk, and surrounding counties. Give him a call today at 813.397.3965 to set up your free consultation!

Don’t Post Evidence on Facebook!!!

By: Adam L. Bantner, II

Board Certified Criminal Trial Law Attorney

It should go without saying, but you can do your criminal defense attorney a huge “solid” by not posted evidence of a crime on your Facebook or other social media account. While it didn’t directly address social media posts, an opinion from the Third District Court of Appeal in Florida reveals how posts can be used against a criminal defendant.

Facebook Post Links Firearm to Defendant

In Barnes v. State, 44 Fla. L. Weekly D2283a (Fla. 3d DCA 2019), Barnes was convicted by a jury of three counts of attempted first-degree murder. The evidence against Barnes consisted of eyewitness testimony from each of the victims that Barnes was the person who shot them. Each of them also testified that the weapon used was a black, semi-automatic handgun with an extended clip. A similar weapon, and perhaps the same weapon, was recovered from another person, George Avila.

Without more, the weapon is likely not admissible in trial because there is nothing to link Barnes to the firearm. However, this is where Facebook comes into play.

The State, after having obtained a warrant to search his Facebook account, found pictures of Barnes with a similar weapon tucked into his pants. The State was also able to prove that the picture was posted relatively close in time to the alleged crimes. As such, the State now possessed evidence that Barnes possessed a similar, if not the same, firearm as the one used in the crime close in time to the alleged crime. That coupled with the eyewitness testimony was more than enough to convict Barnes.

Other Examples of Foolish Posts

A quick Google or DuckDuckGo search will reveal numerous other incidents of foolish posts by criminal defendants. Some of our favorites are:

Posting location and work schedule when you have a warrant out for arrest.

Siphoning gasoline from a police vehicle and sharing said crime on Facebook.

Any my personal favorites, don’t “Like” the police department’s Facebook page if you are fleeing from said law enforcement agency.

Call Us For Your Free Consultation

While we hope that neither you nor a loved one is on the wrong side of the law from an ill-fated social media post, if you are, give us a call at 813.397.3965 for your free consultation with an expert criminal defense lawyer. We serve all of Hillsborough County and will travel to Polk, Pasco, Manatee, and Pinellas counties as well.

The Bantner Firm

Valrico Law Group

The Risks of an Entrapment Defense

By: Adam L. Bantner, II

Board Certified Criminal Trial Law Attorney

A common defense (relatively speaking, that is) to charges of possession of controlled substances, dealing in controlled substances, and trafficking in controlled substances is that the person charged was entrapped by law enforcement into committing the crime. However, the defense is not without it’s risks.

How to Build an Entrapment Defense

There are two types of entrapment defenses. The first is objective entrapment. The second is subjective entrapment.

Florida Objective Entrapment

Objective entrapment is a defense based solely on the conduct of law enforcement. The defendant’s state of mind simply does not matter. Courts have held that objective entrapment occurs when law enforcement’s conduct is so egregious that the Due Process Clauses of the Florida and United States constitutions are violated. The defense is generally raised by a motion to dismiss filed and heard pretrial.

This type of entrapment is best explained by the use of examples. Objective entrapment can occur where law enforcement itself violates laws in order to get another person to break the law. This can occur, for example, when law enforcement uses drugs in an attempt to get another person to purchase and use the drugs in their presence. Another example that has been held to be objective entrapment is using a law enforcement officer to pose as a homeless individual passed out on the street. While supposedly passed out, they make it plainly visible that there are multiple hundreds of dollars in the person’s pocket. This induced someone to steal the money from the pocket.

This type of conduct should result in dismissal of the criminal charges.

Florida Subjective Entrapment

Subjective entrapment not only involves the conduct of law enforcement, but also involves the subjective state of mind of the defendant. In Munoz v. State, 629 So. 2d 90 (Fla. 1993), the Florida Supreme Court established that in asserting the defense of subjective entrapment, the defendant has the burden of showing that a government agent induced him to commit the charged offense and that he was not predisposed to commit it. If the defendant presents evidence of his lack of predisposition, the burden shifts to the State to rebut that evidence beyond a reasonable doubt.

In other words, the defendant must prove that the crime would not have occurred but for the conduct of law enforcement and that he was not otherwise inclined to commit such a crime. This is where the risk of the entrapment defense comes into play.

The Risk of the Entrapment Defense

In most criminal prosecutions, the State cannot introduce evidence of prior crimes. The most common exception occurs when the defendant testifies and the prior crime(s) was a crime of dishonesty and/or a felony. Actions that did not result in convictions do not come into evidence under this exception.

The other common exception is when Williams Rule evidence is introduced to prove (1) motive; (2) opportunity; (3) intent; (4) preparation; (5) plan; (6) knowledge; (7) identity; or (8) absence of mistake. With this exception, the prior conduct did not have to result in a conviction. This evidence is inadmissible when it is introduced solely to prove a defendant’s propensity to commit criminal acts.

However, when an entrapment defense is used, the prior bad acts are introduced to prove propensity. The State is allowed to make a searching inquiry into prior acts to rebut the defense’s proof that they were not predisposed to commit such a crime. Depending on the defendant, this may not be a road they want to travel.

In Harris v. State, 44 Fla. L. Weekly D2155b, (Fla. 5th DCA 2019), Harris tried to prevent, by motion in limine, the State from introducing prior allegations of drug dealing in a trial for trafficking in hydrocodone and methamphetamine. He argued that the prior acts should not be admitted because those charges were ultimately dismissed by the court. The trial court disagreed and Harris was convicted after trial. He decided not to testify and, therefore, not to present an entrapment defense, because of the ruling, and took the issue up on appeal.

However, the Fifth District Court of Appeal agreed with the trial court and held that the prior acts would have been admissible should Harris have testified that he was not predisposed to commit the crimes. It stated “evidence of prior crimes to rebut an entrapment defense is not limited to events resulting in a conviction. The state may prove predisposition with evidence of ‘the defendant’s prior criminal activities, his reputation for such activities, reasonable suspicion of his involvement in such activity, or his ready acquiescence in the commission of the crime. Here, the State was prepared to present testimony of a witness who had allegedly witnessed Harris’ participation in illegal drug sales in 2009. This evidence would have been relevant to the issue of whether Harris was predisposed to commit the instant offenses.

Get Expert Legal Help Today!

Before you enter a plea of guilty or simply accept the help of a public defender, give us a call at 813.397.3965 to set up your free consultation. We’ve tried over 30 cases and have represented hundreds (if not thousands) of individuals since 2006 with successful resolutions of their cases. Put our expertise to work for you today!

You Can’t Say That!

Atticus Finch knew how to make an effective argument. This is a scene from the legendary movie, To Kill A Mockingbird.

Impermissible Arguments by Prosecutors Lead to Reversed Convictions

By: Adam L. Bantner, II

Because the U.S. Constitution requires a criminal defendant to be presumed innocent, that a defendant receive a fair trial, and that a defendant does not have to any burden to prove his own innocence, prosecutors have to be very careful in making their arguments to the jury.

In closing argument, the attorney’s role is to “assist the jury in analyzing, evaluating and applying the evidence.” Cardona v. State, 185 So. 3d 514, 519 (Fla. 2016) (quoting U.S. v. Morris, 568 F. 2d 396, 401 (5th Cir. 1978)). Comments made during closing argument that are intended to inject emotion and fear into the jury are outside the scope of a proper closing argument. Lewis v. State, 780 So. 2d 125, 129 (Fla. 3d DCA 2001); Garron v. State, 528 So. 2d 353, 359 (Fla. 1988). It is improper for an attorney to express a personal opinion about the credibility of a witness during closing argument. Johnson v. State, 801 So. 2d 141, 142 (Fla. 4th DCA 2001) (“It is equally improper for the state to vouch for the credibility of a police officer by arguing that the jury should believe police officers solely because they are police officers.”). “It is the responsibility of the prosecutor to seek a verdict based on the evidence without indulging in appeals to sympathy, bias, passion or prejudice.” Brinson v. State, 153 So. 3d 972 (Fla. 5th DCA 2015) (quoting Edwards v. State, 428 So. 2d 357, 359 (Fla. 3d DCA 1983).

Should a prosecutor make such an argument, Courts apply the “Lopez Test” when determining whether prosecutorial comments merit a new trial. To warrant a new trial, the comments must either 1) deprive the defendant of a fair and impartial trial; 2) materially contribute to the conviction; 3) be so harmful or fundamentally tainted as to require a new trial; or 4) be so inflammatory that they might have influenced the jury to reach a more severe verdict than it would have otherwise. Spencer v. State, 645 So. 2d 377, 383 (Fla. 1994) (citing Lopez v. State, 555 So. 2d 1298, 1299 (Fla. 3d DCA 1990)).

Morell v. State, Improper Burden Shifting

In Morell v. State, 26 Fla. L. Weekly Supp. 883a (Fla. 17th Cir. Ct., 2018), Morell was charged with driving under the influence. He performed one field sobriety exercise, horizontal gaze nystagmus, but refused the other exercises and refused to provide a sample of his breath for testing.

In closing arguments, the prosecutor focused her attention almost solely on the defendant’s failure to provide the jury with additional evidence of his guilt. Her statements included:

  • … defendant failed to provide what would be the best evidence in this case.
  • … the defendant said, fine, I will choose not to give the ladies and gentlemen of the jury today the best evidence in this case, which would be his breath.
  • … the State has proven that the only lack of evidence in this case comes from the defendant refusing to provide the breath sample to you all today.

The court held that each of these statements improperly shifted the burden upon the defendant to provide evidence to the jury. As such, it amounted to fundamental error to require reversal of the conviction even without proper preservation of the errors by defense counsel.

Alou v. State, Improper Vouching and Appeal to Passions of the Jury

In another DUI case, the court reversed a conviction because a prosecutor made arguments that effected the defendant’s ability to receive a fair trial. In Alou v. State, 26 Fla. L. Weekly Supp. 869a (Fla. 11th Cir. Ct., 2018), the prosecutor improperly vouched for the credibility of a law enforcement witness and improperly appealed to the sympathies and passions of the jury.

The statements were:

  • Officer Franco is not going to misrepresent the words of this Defendant.
  • Then he almost hit a bus, a bright colored bus. Then he almost hit that bus, again. Members of the jury, what if he didn’t miss?

In this case, unlike in Morell, the defense attorney did his job by properly objecting to the offending statements and moving for a mistrial. While the court did sustain the objections, it never gave a curative instruction to the jury and it denied the motion for a mistrial.

The Circuit Court, sitting in its appellate capacity, ruled that the trial court abused its discretion in denying the motion for a mistrial. As such, the verdict was reversed and the case was remanded to the trial court for a new trial.

There’s a Right Way to Preserve a Juror Challenge

By: Adam L. Bantner, II, B.C.S.

Jury selection is the beginning of your trial. Some believe that a case can be won or lost at jury selection. While I don’t necessarily believe that a trial can be won at this stage, I certainly believe that it can be lost before the first word of testimony is delivered.

As such, if someone is taking their case to trial, whether a criminal or personal injury matter, you need an attorney skilled in trial practice and jury selection. With over 30 trials under my belt, I’ve honed my trial skills more than most attorneys.

In jury selection, we are trying to accomplish two things: 1) get rid of jurors predisposed to rule against your client, and 2) start planting the seeds of persuasion for your case. Successfully fulfilling both of these objectives is more art than science and the scope of this article is not expansive enough to cover the “how-to” on accomplishing these goals. Suffice to say, at this point, a necessary skill to get this done is getting your jurors to speak. Getting a person, who probably doesn’t want to be there in the first place, to open up about who they are, their beliefs, and their life in general, is difficult. However, it is possible and completely necessary to getting a good jury.But what do you do if you find a juror who, to you, is undesirable for service on your jury?

In any trial, counsel has unlimited “cause” challenges. A cause challenge can be utilized whenever a juror has indicated that they can’t do the job as instructed by the court and according to the law. For example, if a juror says that he/she would need to hear testimony from a criminal defendant and he/she would hold it against the defendant should he/she desire to exercise his or her right to remain silent, that juror should be stricken for cause by the court upon motion by counsel. These types of challenges are unlimited because you can’t have an unqualified juror serving on a case.

The other type is “peremptory” challenges. These can be used for any reason not forbidden by law. For example, you can’t use a peremptory against someone for simply being black, for being a woman, for being old, etc. However, if you believe that the court improperly denied a cause challenge, you can use one of your peremptory challenges on that person. Peremptory challenges are limited in number. The number is set by law depending on the type of case being tried.

However, if a judge denies both a cause and peremptory challenge to a juror, certain steps must be taken to ensure that the issue is preserved for appeal. They are relatively simple, but necessary.

First, make the challenge. You can’t appeal a denial if you never asked for the juror to be excused. If the cause challenge was denied but the court allowed you to use a peremptory challenge on that person, you must ask for an additional peremptory challenge. If you don’t, the denial of the cause challenge will not be appealable. The theory is that if the court gives you an extra peremptory to use, no harm no foul because the litigant essentially got what he or she desired anyway.

Finally, if the court denies both the cause and peremptory challenges (or just the peremptory if no cause challenge was made), you must renew the objection before the jury, as a whole, is sworn in to hear the case. Failure to renew the objection will act as a waiver of any previous objections to denials by the court for cause.

In Hernandez v. State, the Second DCA indicated that it would have reversed and remanded for a new trial had the trial lawyer properly preserved the denial of a peremptory challenge. In that case, Hernandez’s lawyer moved to remove a juror for cause because a juror had stated he would have a problem if Hernandez failed to testify. The juror later stated that he would not have a problem. As such, the Court denied the cause challenge.

The Court, improperly, also denied the peremptory challenge made by counsel. The Court unfortunately applied the “cause” standard to a “peremptory” challenge. This was error. However, counsel failed to renew the objection prior to the swearing in of the jury. As such, the District Court of Appeal had to affirm the judgment and sentence of the trial court and did not grant Hernandez a new trial.

As you can see, having a skilled trial attorney is essential to having a fair trial while also preserving any appellate issues that may arise during the trial. Adam Bantner is a board certified criminal trial law attorney in Hillsborough County. Call us today to see how we can help!

Judges Get This One Wrong All The Time!

An Excited Utterance Can Be Admissible Even When Self-Serving

By Adam L. Bantner, II

During the course of a criminal trial it is not unfamiliar for a judge to sustain an hearsay objection whenever the hearsay statement is that of the person on trial. This is true even when the statement qualifies for admission under an exception to the hearsay rule. The common refrain from the prosecutor is, “But judge, it’s self-serving. Self-serving hearsay is inadmissible.” This can be enough to persuade the judge. 

However, criminal defense attorneys have a new case with which to arm themselves against this wrong line of thinking. The Fourth District Court of Appeal in Hinck v. State, 43 Fla. L. Weekly D2681c (Fla. 4th DCA 2018) held that so long as the particular requirements of the exception are met, in this case it was an excited utterance, the self-serving nature of the statement will not automatically preclude its admission into evidence; it is but one consideration.

The Excited Utterance Hearsay Exception

Fla. Stat. 90.803(2) allows for the admission of an “excited utterance” when the following criteria is met: [T]he statement must be made: (1) regarding an event startling enough to cause nervous excitement; (2) before there was time to contrive or misrepresent; and (3) while the person was under the stress or excitement caused by the event. Hayward v. State, 24 So.3d 17 (Fla. 2009). Conspicuously absent is any requirement that the statement not benefit the defendant if the statement is his. 

The confusion comes from the courts’ ability to blend the requirements for the admission of a spontaneous statement and excited utterance. It shouldn’t be done, but an element for the admission of a spontaneous statement is it not be made under circumstances which indicate its lack of trustworthiness. Obviously, you don’t want unreliable evidence to be admitted; but the fact that a person is under the stress or excitement of a startling event is exactly what gives an excited utterance its trustworthiness. If the statement is fabricated, then its not being made under stress or excitement. As such, this requirement is unnecessary for an excited utterance to be admitted. 

State v. Hinck

In this case, Hinck had stabbed a man with whom he met online for a casual sexual encounter. Hinck claimed that he had a change of heart about going through with the act and that the victim of the stabbing had tried to force himself upon Hinck. Hinck claimed to have responded in self defense by using his knife.

Upon coming down the stairs from the hotel room, Hinck stated to the hotel attendant, “I’ve been attacked; I stabbed someone.” This is the statement to which the state objected. The trial court sustained that objected and Hinck was ultimately convicted. 

However, the appellate court reversed the conviction because the statement should have been admitted and such error was not harmless.

Call The Bantner Firm

If you find yourself or someone you love facing a serious felony allegation, you need an attorney who knows his way around the courtroom. Adam Bantner is a board certified criminal trial law attorney helping the accused in Hillsborough County. Call us today for your free consultation. 813.397.3965.

Will a Discovery Violation Earn a New Trial?

What Happens When the State Hides the Ball?

Sometimes intentionally, sometimes inadvertently, the Office of the State Attorney and its prosecutors will fail to provide discovery (evidence that it intends to use at trial), to the defense. When this occurs, we have a discovery violation. The Rules of Criminal Procedure require that the State provides a myriad of evidence within 15 days of the defense’s election to participate in the discovery process. 

The Process

First, you must have a skilled trial attorney who will be able to recognize when a violation has occurred. Adam Bantner is board certified in criminal trial law and has extensive trial experience. He will catch such a violation. 

Typically, a violation is not caught until trial when the Assistant State Attorney, through its witness, introduces evidence (a statement by the defendant, an observation of the witness, etc.) that has not been disclosed to the defense. When this happens, defense counsel must object and request that the statement be stricken and, I would recommend, request a mistrial. Should the court do neither, your attorney should request a Richardson hearing. It’s also important to note that it doesn’t matter whether the ASA was aware of the evidence. They are charged with constructive knowledge of the evidence possessed by their agents, i.e., law enforcement. Rojas v. State, 904 So.2d 598 (Fla. 5th DCA 2005).

Richardson Hearing

At this hearing, which will occur outside of the presence of the jury, the Court will first determine whether the evidence was not disclosed to the defense. Assuming this finding is made, the Court will next determine whether violation was harmless to the defense. This determinate is obviously the more complicated of the two findings that must be made. 

Recently, 15th Circuit Court Judge Harper summarized the determination as follows:

In State v. Schopp, 653 So. 2d 1016, 1019 (Fla. 1995) [20 Fla. L. Weekly S136a], the Florida Supreme Court made clear that “[t]he question of ‘prejudice’ in a discovery context is not dependent upon the potential impact of the undisclosed evidence on the fact finder but rather upon its impact on the defendant’s ability to prepare for trial.” (quoting Smith v. State, 500 So. 2d 125, 126 (Fla. 1986)). In conducting this analysis, the court should analyze whether the defense’s “trial preparation or strategy” would have been materially different had the defendant the benefit of the missing discovery. Scipio v. State, 928 So. 2d 1138, 1147 (Fla. 2006) [31 Fla. L. Weekly S114a]. “Trial preparation or strategy should be considered materially different if it reasonably could have benefitted the defendant.” Id. (quoting Schopp, 653 So. 2d at 1020). Only when the reviewing court “can say beyond a reasonable doubt that the defense was not procedurally prejudiced by the discovery violation can the error be considered harmless.” Id. (quoting Schopp, 653 So. 2d at 1021). 

Shannon v. State, FLWSUPP 2606SHAN (Fla. 15th Cir. Ct. 2018).

Will I Get a New Trial

This is the million dollar question. However, it is very fact specific. In Shannon, a new trial was not granted where evidence of defendant’s statement that “I’m going to fucking kill him” was not disclosed. The Court held that this statement was sufficiently similar to the properly admitted statement of “I’m going to go get my gun” so that the defense was not prejudiced in its preparation. Additionally, the defense was able to cross-examine the detective regarding the undisclosed statement and its strategy would not have changed had the undisclosed statement been disclosed. 

Expert Criminal Trial Representation Matters!

As you can see, trial work can be complicated. If you or your friends/family ever find yourself on the wrong side of a criminal allegation, don’t put your freedom in the hands of an inexperienced practitioner. Call The Bantner Firm today at 813.397.3965 to set up your free consultation!

Trust Your Community Lawyer!