Tag Archives: Evidence

There is not a “logical sequence of events” exception to hearsay

By: Adam L. Bantner, II

Board Certified Criminal Trial Attorney

Contrary to what many prosecutors, and a few judges, believe, there is not an exception to the prohibition to the introduction of hearsay (an out-of-court statement entered into evidence for the truth of the matter asserted) when that hearsay statement is offered to prove a logical sequence of events. A common response to an objection to its introduction is that it is not offered for the truth of the matter asserted, i.e., it is offered to prove the effect on the listener. Or, in other words, it’s offered to explain why someone took a certain action.

However, when that’s the case and depending on the type of statement offered, it can be greatly more prejudicial than probative and, therefore, inadmissible under Fla. Stat. 90.403, or simply irrelevant and immaterial and, therefore, inadmissible under Fla. Stat. 90.401.

Case Law Support for Exclusion

Fortunately for trial lawyers like myself, we have some recent support from the 4th DCA that we can use to educate courts when arguing for the exclusion of this type of evidence. In Conyers v. State, 44 Fla. L. Weekly D1844b (Fla. 4th DCA 2019), the Court reversed Conyers’ conviction for trafficking by purchase of oxycodone for the improper introduction of such evidence. Here are the relevant facts from the case:

At trial, the undercover officer who conducted the drug buy testified that before the sting operation, a confidential informant told the officer that a six-foot-tall, heavy-set black male known as Angel, who drove a two-door red Ford F-150 pickup truck, was “interested in purchasing large quantities of prescription pills in the City of Hollywood.” The officer testified that the informant also gave him Angel’s phone number. With the description and phone number provided by the informant, the officer identified appellant as Angel and began his investigation.
Appellant objected to the officer’s testimony and moved for a mistrial. He argued that the officer’s testimony about the confidential informant’s comments about appellant was hearsay and improperly suggested that appellant had a propensity to purchase large amounts of opiates. The State argued that the statements were not hearsay because they were not offered for the truth of their content but were intended to show the effect on the listener, i.e., the police officer, who then opened an investigation.

As is clear from just these facts, the State doesn’t really want the jury to learn why the officer targeted Mr. Conyers, they want the jury to know that there is a person out there who wants to purchase drugs and that person is “Angel,” who is identified as Mr. Conyers. The statement is highly prejudicial and from someone whom the defense cannot cross-examine because he is not in court. Furthermore, it’s immaterial because why the officer targeted Mr. Conyers is irrelevant to the facts they must prove in order to garner a conviction. The better practice is for the testifying officer to simply say that he was acting on a tip or information received. State v. Baird, 572 So. 2d 904, 905 (Fla. 1990).

Fortunately for Mr. Conyers, the Fourth DCA followed Baird and vacated Mr. Conyers conviction and sentence (7 years Florida State Prison followed by three years of probation) and remanded his case for a new trial. The Court held:

In this case, the trial court erred in allowing the officer to give inherently prejudicial hearsay testimony regarding appellant’s alleged drug activity in the community. The State’s contention that this testimony was not hearsay is simply wrong. Even if the informant’s statements were not offered for their truth, they were irrelevant, because the police officer’s reason for investigating appellant was immaterial. See Baird, 572 So. 2d at 908. Moreover, the risk of unfair prejudice outweighed any probative value. The error was not harmless, see State v. DiGuilio, 491 So. 2d 1129 (Fla. 1986). Accordingly, we reverse the judgment of conviction and remand for a new trial.

Experienced Tampa Trial Lawyer

Adam Bantner can help you and/or your family if you’ve been charged with a crime. It’s important to have a trial lawyer on your side when doing batter in a court of law. Give us a call today for your free consultation. 813.397.3965.

Improper Bolstering by State Causes Conviction to Be Overturned

 

If a person is serious about taking their case to trial, they need to be represented by an attorney with trial experience and a depth of knowledge of the evidence code. As a recent case demonstrates, it can be critical to the success or failure of any particular action.

Improper Bolstering

In Lazarro v. State, 43 Fla. L. Weekly D2265h (Fla. 5th DCA 2018), Lazarro was accused of taking a former landlords property and selling it to make up for the landlord’s failure to return a security deposit. Obviously, the case came down to the credibility of the witnesses. Was the jury going to believe the landlord’s testimony that Lazarro stole the property and sold it without permission or Lazarro’s testimony that the property was given to him by the landlord?

Lazarro had going against him the fact that he was a five-time convicted felon. Because he took the stand to testify on his behalf, this fact properly became known to the jury. The was no evidence that the landlord possessed any convictions that would be admissible to the jury. In its holding, the Court essentially stated that while it was proper to comment on Lazarro’s convictions as relevant to his ability to tell the truth (i.e., his credibility), it was improper for the prosecutor to bolster the landlord’s credibility by commenting on his lack of convictions. Because the credibility of the witnesses was central to the decision by the jury, the Court held that Lazarro deserved a new trial.

Why The Right Attorney Matters

Had Lazarro’s attorney failed to object, the conviction most likely would have stood. Errors in evidence admission or argument, generally speaking, only warrant a reversal in cases of fundamental error. Most evidence/argument errors are not fundamental. A person should not trust their freedom to an attorney that cannot recognize when an improper argument is being made or inadmissible evidence is about to be proffered. The Bantner Firm and board certified attorney Adam Bantner possess the necessary education, training and experience to make sure that your case is given the best chance of success!

Call us today at 813.397.3965 to schedule your free consultation!

 

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)