You Have the Right to Remain Silent

February 18, 2017 by
You Have the Right to Remain Silent

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

  1. 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.
  2. 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.
  3. 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.
  4. 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.
  5. 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.
  6. 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.
  7. 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.
  8. 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.
  9. 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.
  10. 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: , , , , , , , , , , , , , ,

Aggressive Criminal Lawyer or Intelligent Criminal Lawyer

October 20, 2016 by
Aggressive Criminal Lawyer

Aggressive Criminal Lawyer and Street Certified Bad Ass*

Searching for an Aggressive Criminal Lawyer

A Google search for “aggressive criminal lawyer” returns 9,780,000 results.  A Google search for “intelligent criminal lawyer” returns 651,000 results. Clearly, people associate the term “aggressive” with “good.”  Let’s rephrase that.  People confuse the term “good criminal lawyer” with “aggressive criminal lawyer.”  The two are not always the same.  Take a moment to think about this.  Would you rather have an aggressive criminal defense attorney or an intelligent criminal defense attorney? An intelligent criminal defense attorney knows when to be aggressive and also knows when to lay off.  An aggressive criminal defense attorney who is not intelligent is just a jerk.

Aggressive Marketing

Why do so many criminal defense attorneys call themselves aggressive?  It all comes down to money. Law firms are businesses.  Attorneys who run the law firms are businessmen.  Businessmen want to make money.  Businesses advertise using the keywords that people search.  More clicks, more clients. More clients, more money.

This post is a pretty good example.  The keyword, or phrase, I choose is “aggressive criminal lawyer.” I did not choose “intelligent criminal lawyer” because the word aggressive will get more clicks.   That is also why I repeat the phrase “aggressive criminal lawyer.”  The search engines will see this post as relevant to “aggressive criminal lawyer” and I will get more clicks.  However, while you are here, I figure I should tell you the truth.

Why People Want an Aggressive Lawyer

I’ve tried a lot of cases.  However, the majority of my cases do not go to trial.  It is that way for every criminal defense attorney. In the cases that go to trial, it is likely my client’s first and last trial experience.  Most of my clients have never seen a criminal trial outside of watching a 20-minute murder trial on Law & Order.  A lot of people form their opinions based on a fictional television show.

The media typical portrays effective criminal defense attorneys in a negative light.  The characters are rude, condescending, abrasive and otherwise jerks.  People have been taught that this is effective.  They want and even expect to see an attorney verbally pound on a state’s witness.  They think that an aggressive criminal lawyer will verbally beat on a witness until they get a “Perry Mason Moment.”  A “Perry Mason Moment” is when the defense attorney gives such a horrific verbal beatdown that the witness breaks down and confesses that he is the real culprit rather than continuing with the mental torment of the questioning.  It seems pretty cool on TV, but it doesn’t work.

How to Lose a Criminal Trial

The easiest way to lose a criminal trial is to make the jury hate you. The easiest way to make a jury hate you is to unnecessarily “beat up” on witnesses. You want the jury to see me as the most reasonable person in the room.

Some people are going to want an aggressive criminal lawyer no matter what I say.  I’ll give you the good news first.  There are plenty of attorneys who will give you what you want.  Now the bad news. Some of the worst cross-examinations I have ever witnessed ended with the client telling his lawyer “great job!”  Usually, the client heard the word “guilty” at the end of the trial.  Why did the client say “great job?”  Because the attorney was aggressive.  That is the same reason he was found guilty.  The jury hated the attorney because he was aggressive.  He was rude, condescending, abrasive, demeaning, belittling, sarcastic and otherwise a jerk.

Aggressive, Persuasive and Effective

There is a difference between aggressive and effective.  Persuasive is effective, aggressive is not.  An intelligent attorney knows the difference. Just because an attorney is not aggressive, in the traditional sense, doesn’t mean that he or she is going to roll over and play dead.    A persuasive attorney will win more cases than an aggressive attorney.

I am not alone in my thoughts.  While doing some research for this post, I came across a blog called Defending People.  We seem to have a similar opinion concerning the phrase “aggressive criminal lawyer.”   It is better for advertising than the courtroom.

Changing Your Approach

Any attorney who is looking to improve their cross-examination skills needs to read MacCarthy on Cross-Examination.  The author, Terence MacCarthy, teaches a simple, extremely effective method of cross-examination that can be used in any type of case and on any type of witness.  Mr. MacCarthy is widely regarded as one of the foremost experts on cross-examination and his book explains exactly why aggressive fails and persuasive wins.

Fort Lauderdale criminal attorney, Michael Dye, likes to think of himself as a reasonable and persuasive attorney.  Please note that his ex-wife’s opinion may differ.  Mr. Dye represents individuals charged with criminal offenses ranging from DUI to murder. 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.

* Credit for Picture: Miami Criminal Attorney Michael A. Haber, Esq.

Filed Under: Aggressive Criminal Lawyer, Criminal Trial, Intelligent Criminal Lawyer, Trial Tagged With: , , , , , , , , , ,

Circumstantial Evidence

April 4, 2016 by
Circumstantial Evidence

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: , , , , , , , , , , , , , , ,

Violation of Probation

October 15, 2015 by
Violation of Probation

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

Filed Under: Burden of Proof, Criminal Lawyer, Discovery, Evidence, Hearsay, Probable Cause, Probation, Right to Bail, Sentencing, Substantial Violation of Probation, Technical Violation of Probation, Trial, Violation of Probation, Violation of Probation, Violation of Probation Hearing, Willful and Substantial Violation of Probation Tagged With: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , ,