You Have the Right to Remain Silent

February 18, 2017 by Michael Dye

You Have the Right to Remain Silent Fool!

YOU HAVE THE RIGHT TO REMAIN SILENT | USE IT

Most people view the fifth amendment as a shelter or haven for individuals who have committed a crime. Invoking your right to remain silent is typically viewed as an admission to criminal conduct. After all, if you have nothing to hide in you have nothing to worry about speaking to the police. Right? You couldn’t be more wrong.

10 REASONS TO NEVER SPEAK TO THE POLICE

If the police already have enough evidence to arrest you, they are going to arrest you no matter what you say. If they don’t have enough evidence, you will probably provide them with enough evidence to arrest you………. even if you are innocent.
There is a reason the United States Supreme Court makes police officers warn you that you have a right to remain silent before they ask you questions. It is because speaking to the police is a bad idea nearly 100% of the time………….. even if you are innocent.
The prosecution cannot introduce evidence at a trial concerning you exercising your right to remain silent. The prosecution will cherry pick your worst statements out of context and use them against you in court.
There is no way it can help. I have seen thousands of people talk their way into getting arrested. I have seen one (1) client give a statement and not end up arrested.
If you are guilty, or innocent, you may admit guilt with no benefit in return. If you admit guilt up front, you lose the ability to negotiate a more favorable plea.
Even if you are innocent and only tell the truth, you will always give the police some information that can be used to arrest and convict you.
Even if you are innocent, only tell the truth and say nothing incriminating, there is still a chance that you will be convicted if the police officers do not recall your statements with 100% accuracy.
Even if you are innocent, only tell the truth and say nothing incriminating, there is still a chance that you will be convicted if the police officers do not recall their questions with 100% accuracy.
Even if you are innocent, only tell the truth, say nothing incriminating and your statement is transcribed, audio or video recorded, you can still be convicted if the police have any evidence that any of the statements you made are false. Even the little white lies.
There are over 10,000 pages of federal criminal statutes and thousands of pages of state statutes. There are in an infinite number of factual scenarios where speaking to the police freely might implicate you in some sort of crime that you did not even know existed.

After all that, remember, you have the right to remain silent. Exercise that right.

WHY WAS THE FIFTH AMENDMENT CREATED?

The Fifth Amendment was created to protect the innocent, not the guilty. You don’t have to take my word for it, you can take the word of Justice Frankfurter, former associate justice United States Supreme Court. “Too many, even those who should be better advised, view this privilege as a shelter for wrongdoers. They too readily assume that those who invoke it are either guilty of crime or commit perjury in claiming the privilege.” Ullmann v. United States, 350 U.S. 422, 426(1956). “The Fifth Amendment’s basic function[s] … is to protect innocent men … who otherwise might be ensnared by ambiguous circumstances. ” See Ohio v. Reiner, 532 U.S. 17, 20(2001).

You Have the right to remain silent. Use it. Refuse to speak with the police without an attorney present. I was admitted to the Florida Bar in 2004. Over the length of my career, I have personally had one (1) client that I allowed to speak to the police during the investigation stage. A colleague of mine has also allowed (1) client to speak to law enforcement during the investigation stage. Our 2 cases are the only 2 that I am aware of where speaking to law enforcement prior to the filing of charges helped the situation. Those were once in a career cases. I know that I’ll never see another like it.

SOURCES

Please note that I stumbled across this topic while doing legal research for a case. I saw a YouTube video by Regent University Law Professor James Duane which is posted above. It was very informative and I would like to generally site to his video as my source for much of the above information contained herein. Although it has always been my opinion, and almost every criminal defense attorney’s position, that you have a right to remain silent and you should use it.

For additional information, please contact us at:

The Law Offices of Michael A. Dye, PA, 1 East Broward Boulevard #700, Fort Lauderdale, FL 33301 (954)990-0525

Filed Under: 5th Amendment, Confession, Criminal Lawyer, Criminal Trial, Evidence, Probable Cause, Trial, United States Constitution Tagged With: 5th Amendment, Confession, Don't Talk to the Police, federal law, Fifth Amendment, fort lauderdale criminal attorney, Interrogation, Ohio v. Reiner, probable cause, Professor James Duane, Regent University School of Law, Ullmann v. United States, United States Supreme Court, Why was the Fifth Amendment Created, You Have the Right to Remain Silent

Circumstantial Evidence

April 4, 2016 by Michael Dye

Strong Circumstantial Evidence

What is Circumstantial Evidence

Evidence in a criminal trial can be either direct or circumstantial. Circumstantial evidence is dependent upon inference, logic and/or reasoning to reach a conclusion of fact. Direct evidence is a direct observation of fact that does not need any further thought to reach a factual conclusion. The difference between direct and circumstantial evidence is best shown by example.

Direct evidence – Witness “A” testifies that she saw her husband in bed with another woman.

Circumstantial evidence – Witness “A” testifies that she saw a three pack of condoms in her husband’s suitcase after he returned from a business trip and that there were only two condoms left.

In either instance, a reasonable person could arrive at the conclusion the husband is in a lot of trouble. Most criminal defendants try to avoid generating direct evidence. As such, criminal trials tend to have substantial amounts of circumstantial evidence.

Other general examples of circumstantial evidence include forensic evidence. A fingerprint at a crime scene can be very damaging evidence. DNA evidence in rape cases and murder cases. Odontological evidence was important in the trial of Ted Bundy. Odontological evidence has proven to be reliable in identifying dead bodies.

Use of Circumstantial Evidence

There is a widespread misconception in the general public that circumstantial evidence is somehow weaker than or less than direct evidence. This can actually work to the advantage of the defense when the State’s case is based entirely on or mostly on circumstantial evidence. Make no mistake about it, people can and do get convicted based on circumstantial evidence alone.

Due to this widespread misconception, a clear and concise jury instruction on circumstantial evidence tends to favor the prosecution. An example of a well drafted jury instruction on circumstantial evidence is found in North Carolina Pattern Jury Instruction 104.05 which states:

“The law makes no distinction between the weight to be given to either direct or circumstantial evidence. Nor is a greater degree of certainty required of circumstantial evidence than of direct evidence. You should weight all of the evidence in the case. After weighing all of the evidence, if you are not convinced of the guilt of the defendant beyond a reasonable doubt, you must find the defendant not guilty.”

This jury instruction is typically favorable to the prosecution because it brings the issue of circumstantial evidence to the attention of the jury and specifically instructs the jury that circumstantial evidence is no different than direct when it comes to reaching a verdict. It is my experience that most jurors are not comfortable convicting an individual based solely on circumstantial evidence unless the circumstantial evidence is overwhelming. Without the jury instruction on circumstantial evidence, jurors tend to give it less weight which typically works to the benefit of the defendant.

Florida Jury Instruction on Circumstantial Evidence

The Florida Supreme Court eliminated the circumstantial evidence jury instruction in 1981. The reason that the Florida Supreme Court eliminated the jury instruction on circumstantial evidence was because it suggested that the law treats circumstantial evidence differently than direct evidence. In order to justify the elimination of jury instruction on circumstantial evidence, The Florida Supreme Court cited to Holland v. United States, 348 U.S. 121, 75 S. Ct. 127, 99 L. Ed. 150 (1954). In Holland, the United States Supreme Court stated:

“Circumstantial evidence in this respect is intrinsically no different from testimonial evidence. Admittedly, circumstantial evidence may in some cases point to a wholly incorrect result. Yet this is equally true of testimonial evidence. In both instances, a jury is asked to weigh the chances that the evidence correctly points to guilt against the possibility of inaccuracy or ambiguous inference. In both the jury must use its experience with people and events in weighing the probabilities. “

Circumstantial Evidence in Criminal Trials

Circumstantial evidence is still evidence. It is treated no differently than direct evidence. A jury is required to consider all admissible evidence when deliberating. The amount of weight that the jury gives to each piece of evidence is for the jury to decide. The law does not require a jury to disregard or give less weight to circumstantial evidence. In fact, quite frequently, the circumstantial evidence in a case can be more convincing than the direct evidence.

Ft. Lauderdale criminal attorney, Michael Dye, has extensive experience handling cases involving complex forensic evidence including. For more information concerning your specific situation, please contact us at:

The Law Offices of Michael A. Dye, PA, 1 East Broward Boulevard #700, Fort Lauderdale, FL 33301 (954)990-0525

Filed Under: Burden of Proof, Circumstantial Evidence, Criminal Lawyer, Direct Evidence, Evidence, Jury Instructions, Trial Tagged With: burden of proof, Criminal trials, difference between direct evidence and circumstantial evidence, DNA evidence, fingerprint, Florida Jury Instruction on Circumstantial Evidence, Florida Supreme Court, forensic evidence, ft lauderdale criminal attorney, Holland v. United States, North Carolina Pattern Jury Instruction 104.05, odontological evidence, rules of evidence, United States Supreme Court, what is circumstantial evidence, what is direct evidence

Violation of Probation

October 15, 2015 by Michael Dye

Florida Criminal Law

What Happens if I Violate Probation?

Violation of probation proceedings are expedited. Nevertheless, there are several Car Accident to a violation of probation proceeding. The proceedings typically go in the following order:

1) Charges & Report;
2) Custody and Terms of Release;
3) Discovery;
4) Hearing and Disposition.

What is a Violation of Probation?

If you were placed on probation, the sentencing court gave you a set of rules. Those rules are the terms of probation. There are certain standard rules, but the Trusted Wills Oxford can customize the terms for your particular case. You do not have to break the law to violate probation. All you have to do is break the rules. For example, the terms of probation for your case might give you a curfew of 10 o’clock. It is not illegal to be out past 10 PM, but it would be a violation of your probation.

I. Charges & Report

Affidavit of Violation of Probation

Your probation officer will file an affidavit of violation of probation if he has probable cause to believe that you violated the terms of your probation. If this is a felony violation of probation, the affidavit is called the “Florida Department of Correction Affidavit of Violation of Probation.” The affidavit will contain the allegations stating how you violated the terms of probation. The affidavit will typically be filed with the same judge that presided over the original sentencing.

Violations of probation are either technical or substantial.

What is a technical violation of probation? Breaking the rules. Examples would include a positive drug test, failure to pay costs of supervision or any failure to abide by the rules.

What is a substantial violation of probation? A new criminal charge.

Violation of Probation Report

Your probation officer will also file a report with the affidavit of violation. The report can request that the court issue a warrant for your arrest or that the court issue a notice to appear. The violation report will also contain significant information such as any statement that you made regarding the alleged violation. The violation report will also contain your history of supervision, the facts and circumstances surrounding the underlying case. Most importantly, the report contains the probation officer’s recommendation concerning the disposition of your case.

II. Custody and Terms of Release

The violation report filed by your probation officer will request that a warrant be issued for your arrest or that you be given a notice to appear. The judge will typically issue a “no bond” warrant if a warrant is requested. It is not uncommon for defendants to stay in jail for two(2) or three(3) months waiting for their violation of probation hearing. Quite often the fear of having no bond drives individuals to abscond or hide in order to avoid going to jail. This just makes the problem worse. Contacting a private attorney immediately is your best option as there are ways to minimize or eliminate the amount of time you spend in jail waiting for your final hearing.

III. Discovery

Discovery is typically limited in violation of probation cases. More often than not your attorney will have most of what they need to know based after reading the violation report. If the violation is a technical violation of probation, i.e., breaking the rules, then there is typically no need for extensive discovery. If the violation is a substantial violation, i.e., a new criminal charge, your attorney will get the discovery in the new case.

IV. Hearing & Disposition

In a violation of probation proceeding, you do not enter a plea of guilty or not guilty. Rather, you either admit responsibility or deny responsibility. If you deny responsibility, there is a hearing. A violation of probation hearing is heard by a judge. You do not have a right to a jury trial. The rules of evidence are relaxed. Hearsay is generally permitted. Also, the burden of proof is lower. The state does not have to prove the violation “beyond a reasonable doubt,” rather, the state must present evidence “sufficient to satisfy the conscious of the court.” That is a long way of saying “by the preponderance of the evidence.” If the state meets the burden of proof the judge will find you responsible for the violation of probation.

Sentencing

The judge has three options when faced with a violation of probation. The judge can revoke probation and sentence you to any sentence which could have been legally imposed on the original criminal charges. For example, if you are on probation for a third degree felony, the judge can sentence you to five(5) years for a violation of probation. The judge can modify the terms of probation. The court can add conditions such as drug rehab, counseling or an ankle monitor. Alternatively, the judge can reinstate your probation on the exact same terms as before.

Getting a private attorney involved early can have a substantial impact on the disposition of your probation case. Typically, a private attorney can talk to the probation officer, prosecutor and set the hearing on a calendar quickly to get a resolution. Additionally, a private attorney can file a motion for an in court surrender and/or get a bond hearing quickly. The advantage of hiring a private attorney over a public defender is that a private attorney can get to work on your case before you are charged with a probation violation. A public defender can only be appointed and get to work once you have been charged. It is a matter of being proactive vs reactive.

In addition to the procedural aspects, a private attorney can help you gather the documents and/or evidence necessary to establish your defense in the event that you proceed to a final violation of probation hearing. It is much easier to obtain evidence before you go into custody.

Fort Lauderdale criminal defense attorney, Michael Dye, has extensive experience handling misdemeanor and felony violations of probation. For more information concerning probation violation proceedings, please contact us at:

The Law Offices of Michael A. Dye, PA, 1 East Broward Boulevard #700, Fort Lauderdale, FL 33301 (954)990-0525 or
The Law Offices of Michael A. Dye, PA, 2 S Biscayne Blvd, Miami, FL 33131 (305)459-3286

DUI Manslaughter Defense

September 15, 2015 by Michael Dye

Analysis of Postmortem Specimens

Strict Liability vs Causation

Florida had a strict liability DUI manslaughter statute until 1986. All the state needed to prove was that the defendant was driving while impaired, was involved in a car accident and somebody died as a result of the car accident. It did not matter if the defendant was at fault for the accident. The legislature amended the DUI manslaughter statute in 1986 to include the element of causation.

Constitutional Issue with Strict Liability

The problem with the strict liability DUI manslaughter statute, in my opinion, was that the criminal culpability for a misdemeanor DUI and the criminal culpability for a DUI manslaughter was equal. A good argument could be made that the strictly at liability DUI manslaughter statute violated the 8th Amendment of the United States Constitution as a cruel and unusual punishment. The current DUI manslaughter statute requires the state to prove the following: 1) driving under the influence; 2) an accident resulting in death and 3) and that the defendant was somehow at fault for the accident. The causation element must be proved independent of impairment.

Not My Fault Defense

Defending DUI manslaughter cases is difficult under any circumstances. It is human nature to look for somebody to blame when somebody dies before their time. It is also human nature to not speak ill of the dead. However, a legally viable defense to DUI manslaughter is that the decedent was at fault for the accident even though the defendant was driving drunk. The defendant would be guilty of DUI, but not DUI manslaughter in that scenario. The “not my fault defense” is a particularly difficult proposition to sell to a jury. In essence, you are saying to the jury “Yes, my client was driving drunk. Yes, my client was involved in a fatal car accident. However, the car accident was the dead guy’s fault.”

Theory vs. Reality

Nobody ever gets screwed by the law in a bar exam essay question. However, this is not a law school exam question. Defense attorneys need to stop thinking about legal theory and focus on where the rubber meets the road. Technically, the defense bears no burden of proof, but if this is your defense, you are going to need to show some solid evidence. The jury is looking to blame somebody and there is a good chance that it is going to be the defendant and also you could get a Dui Lawyer Orlando to help you rest your case, so everything is easier. Personally, I wouldn’t want to use this defense if it did not have a strong factual basis. The risk of alienating the judge and jury by blaming the victim without any serious basis is too great.

Where to Find the Evidence

The autopsy report from the County Medical Examiner’s Office is a valuable source of information for the defense. Please note that the Medical Examiner’s Office may be called something different in another state. Biological specimens, such as blood and urine, are preserved during the course of an autopsy. Toxicology testing is performed on the specimens. The results of the toxicology tests may show that the was under the influence of some sort of drug or alcohol at the time of the accident.

It should be relatively easy to establish whether the decedent was under the influence of a drug at the time of the accident. The postmortem blood sample will identify the drugs in his or her system at the time of death. Postmortem quantitative analysis of controlled substances in a decedent’s blood is another topic for another time. The biggest problem that defense attorneys run into when trying to evaluate the culpability of the decedent is the quantitative analysis of ethyl alcohol in the decedent’s blood.

No matter what methods are used, using the BAC at the time of autopsy in order to determine the decedent’s impairment at the time of the accident is an educated guess at best and gross speculation at worst. The reason for the uncertainty is because alcohol can be produced or destroyed in between the time of death in the time of the autopsy. Autolysis is defined as the self digestion or destruction of an organism’s own cells through the action of its own enzymes. This begins to occur within hours of an individual’s death and his present throughout the vast majority of the vascular system within hours. The result is an environment which supports the endogenous production of alcohol. Multiple environmental factors contribute in determining if endogenous alcohol is produced or the extent of the endogenous production. The two most significant are typically time and temperature.

Postmortem BAC Testing is Never Ideal

We obviously want the BAC to be as accurate as possible. In an ideal world we would like to have a blood sample taken from the decedent as soon as possible after the accident and a second blood sample taken 45 minutes to an hour after the first blood sample with both being prior to death. If that is the case, we would probably not need to use the postmortem sample.

If possible, the first thing that the defense attorney should do is check the decedents medical records in order to determine if a BAC screen was ordered by a doctor at the hospital. You may have to request a subpoena duces tecum if the medical evidence from the hospital is not provided in discovery. Sometimes individuals die on the scene or on their way to the hospital so this is not always available. If there is no antemortem sample, the defense attorney has to be able to assess the reliability of the autopsy sample.

Additional Reading

Postmortem analysis of biological specimens for ethyl alcohol is very complicated. Try as I might, I cannot say it any better than it is said on this website: BAC Analysis in Postmortem Specimens. Another good website for forensic science in general is The Truth About Forensic Science

Remember that it is the State’s burden to prove that the defendant was at fault for the accident. If you can put on strong evidence that the decedent was impaired it is up to the State to rebut that. There are simply too many variables for the toxicologist to credibly testify as to a definitive state of impairment at the time of the accident.

For more information, please contact us at:

Filed Under: 8th Amendment, Autopsy, Blood Test, Criminal Lawyer, Cruel and Unusual Punishment, Discovery, Drugged Driving, DUI, DUI Drug, DUI Drug, DUI Lawyer, DUI Legislation, DUI Manslaughter, Evidence, Florida Statute 316.193, Medical Records, Strict Liability Statute, Subpoena Duces Tecum, United States Constitution, Urinalysis Tagged With: 8th Amendment, autopsy, BAC, biological specimens, burden of proof, controlled substance, criminal attorney, criminal defense attorney, Criminal Lawyer, Cruel and Unusual Punishment, drugged driving, DUI Manslaughter, ethyl alcohol, evidence, fort lauderdale criminal attorney, fort lauderdale dui attorney, impairment, medical examiner, medical records, miami criminal attorney, miami dui attorney, postmortem BAC testing, subpoena duces tecum, subpoena for medical records, toxicology, United States Constitution