Pre-trial Motions and Defenses
Due Process and Your Right to a Trial
If you are accused of a crime, you cannot be punished unless you are found guilty or enter a plea of guilty or no contest to a charge. There are many things that may be done to put you into the best position to avoid a wrongful conviction or sentence. An accused is entitled to due process and has the right to an attorney and a jury trial. With a criminal attorney on your side, you can utilize all of the laws and the rules of procedure that are designed to give your rights real meaning, and to protect you against an unfair conviction. The experienced Orlando criminal attorneys at Longwell Lawyers know how to help you.
By having an Orlando criminal attorney enter a Not Guilty plea on your behalf, it may not be necessary for you to appear for your Arraignment. Your Orlando criminal attorney will request all of the government’s evidence and fully prepare your case for trial. Through the trial process, your Orlando criminal attorney may be able to challenge the admissibility of evidence, develop your defenses, and discover the weaknesses in the government’s case against you. You will be presumed innocent and have the right to remain silent, or to testify in your defense, while the government will be required to present any admissible evidence it has in an effort to prove the case beyond and to the exclusion of every reasonable doubt. These are powerful rights that are afforded to anyone accused of a crime. These rights are central to our notions of freedom and liberty. Failing to utilize your rights properly may result in your suffering the penalties and consequences of a criminal conviction
Discovery and Depositions
Your Orlando criminal attorney may request “discovery” from the government. This will require the government to disclose any witnesses, statements, physical evidence, any recordings or photographs, and any other evidence it intends to use. Additionally, your Orlando criminal attorney may be able to require the government’s witnesses to appear at a pre-trial deposition so that your attorney may ask questions of the witness while under oath.
The government’s evidence may be limited or excluded from trial, or the case may be dismissed altogether through the use of pre-trial motions. The following Motions are some that are available:
- Motions to Dismiss: A Motion to Dismiss a case or count may be filed for any defense properly asserted under the law, including when a defendant was previously pardoned, placed in jeopardy, granted immunity, or where there are no disputed facts in the case and those undisputed facts do not constitute a crime.
- Motions in Limine: An Orlando criminal attorney may file a Motion in Limine seeking pre-trial judicial determinations regarding anticipated objections to the State’s evidence and the admissibility of certain evidence at trial.
- Motions to Suppress: Where evidence has been collected unlawfully, an Orlando criminal attorney may seek to “suppress” the evidence prior to trial. Such evidence is excluded from being presented by the government as evidence at a trial. If evidence is suppressed it may lead to a better chance for a not guilty verdict or a dismissal of the case.
The following is a partial list of the many defenses available to an accused, whether raised in a pre-trial motion or at trial.
- Alibi: An accused may raise the defense that he or she was not present when the crime was committed. This may require proper notice to be filed, pursuant to [Rule 3.220, Florida Rules of Criminal Procedure]. If a juror has a reasonable doubt the accused was not present at the scene of the alleged crime, it is the duty of the juror to find the accused not guilty, according to [3.6(j), of Florida’s Jury Instructions].
- Corpus Delicti: This is a principle of law that establishes that a crime must be proven to have occurred before a person can be convicted of committing that crime. A person’s statements or admissions of a crime may not form the sole basis of a conviction, if the crime cannot be established to have been committed without those statements or admissions.
- Entrapment: There are two different types of entrapment in the State of Florida: subjective and objective. Subjective entrapment is codified in Section 777.201, Florida Statutes (2012), and focuses on inducement of the defendant by an agent of the government when the defendant did not have a predisposition to commit the crime. Objective entrapment arises in the presence of egregious law enforcement conduct and is to be objectively evaluated under the Due Process Clause of Article I, Section 9, of the Florida Constitution.
- Identification: Before an accused may be convicted of a crime, the government must present evidence identifying the accused as the perpetrator of the crime. Florida has jury instruction on [3.9(f)] on eyewitness identification that instructs jurors to consider the credibility of eyewitnesses, and other factors, such as the capacity and opportunity of the eyewitness to observe the offender based upon the length of time for observation and the conditions at the time of observation, including lighting and distance; whether the identification was the product of the eyewitness’s own recollection or was the result of influence or suggestiveness; the circumstances under which the defendant was presented to the eyewitness for identification; any inconsistent identifications made by the eyewitness; any instance in which the eyewitness did not make an identification when given the opportunity to do so; the witness’s familiarity with the subject identified; lapses of time between the event and the identification[s]; whether the eyewitness and the offender are of different races or ethnic groups, and whether this may have affected the accuracy of the identification; and the totality of circumstances surrounding the eyewitness’s identification.
- Insanity and Mental Health: A person is considered to be insane when he or she had a mental infirmity, disease, or defect and because of this condition he or she did not know what he or she was doing or its consequences or although he or she knew what he or she was doing and its consequences, he or she did not know it was wrong. A defendant who believed that what he or she was doing was morally right is not insane if the defendant knew that what he or she was doing violated societal standards or was against the law. All persons are presumed to be sane. The defendant has the burden of proving the defense of insanity by clear and convincing evidence. Clear and convincing evidence is evidence that is precise, explicit, lacking in confusion, and of such weight that it produces a firm belief, without hesitation, about the matter in issue. In determining the issue of insanity, the jury may consider the testimony of expert and non-expert witnesses. The question the jury must answer is not whether the defendant is insane today, or has ever been insane, but whether instead the defendant was insane at the time the crime allegedly was committed.
- Intent (Mens Rea): Unless the offense charged is a strict liability offense, the government must show either general or specific intent to commit a crime. In such instances, a lack of intent to commit a crime is a defense.
- Intoxication: The use of [alcohol] [drugs] to the extent that it merely arouses passions, diminishes perceptions, releases inhibitions, or clouds reason and judgment does not excuse the commission of a criminal act. However, where a certain mental state is an essential element of a crime, and a person was so intoxicated that [he] [she] was incapable of forming that mental state, the mental state would not exist and therefore the crime could not be committed. The intent to commit a crime is an essential element of only certain crimes. In such cases, if the defendant was so intoxicated from the voluntary use of [alcohol] [drugs] as to be incapable of forming the intent to commit that crime, or if there is a reasonable doubt about it, then a jury should find the defendant not guilty.
- Justifiable Use of Deadly Force (Castle Doctrine and Stand Your Ground): An issue may be raised as to whether the defendant acted in self-defense. Florida Jury Instruction 3.6(f) establishes: It is a defense to certain offenses if the [death of] [injury to] a victim resulted from the justifiable use of deadly force. Definition of “Deadly force” means force likely to cause death or great bodily harm. The use of deadly force is justifiable only if the defendant reasonably believes that the force is necessary to prevent imminent death or great bodily harm to [himself] [herself] while resisting either another’s attempt to murder [him] [her], or any attempt to commit a felony upon [him] [her], or any attempt to commit a felony upon or in any dwelling, residence, or vehicle occupied by [him] [her]. A person is justified in using deadly force if [he] [she] reasonably believes that such force is necessary to prevent imminent death or great bodily harm to [himself] [herself] or another, or the imminent commission of a forcible felony against [himself] [herself] or another. However, the use of deadly force is not justifiable if the defendant was attempting to commit, committing, or escaping after the commission of a forcible felony; or the Defendant initially provoked the use of force against [himself] [herself], unless the force asserted toward the defendant was so great that [he] [she] reasonably believed that [he] [she] was in imminent danger of death or great bodily harm and had exhausted every reasonable means to escape the danger, other than using deadly force on (assailant), in good faith, the defendant withdrew from physical contact with (assailant) and clearly indicated to (assailant) that [he] [she] wanted to withdraw and stop the use of deadly force, but (assailant) continued or resumed the use of force. A person is not justified in using force to resist an arrest by a law enforcement officer, or to resist a law enforcement officer who is engaged in the execution of a legal duty, if the law enforcement officer was acting in good faith and he or she is known, or reasonably appears, to be a law enforcement officer. However, if an officer uses excessive force to make an arrest, then a person is justified in the use of reasonable force to defend [himself] [herself] (or another), but only to the extent [he] [she] reasonably believes such force is necessary. In deciding whether defendant was justified in the use of deadly force, the jury must judge [him] [her] by the circumstances by which [he] [she] was surrounded at the time the force was used. The danger facing the defendant need not have been actual; however, to justify the use of deadly force, the appearance of danger must have been so real that a reasonably cautious and prudent person under the same circumstances would have believed that the danger could be avoided only through the use of that force. Based upon appearances, the defendant must have actually believed that the danger was real. There is no duty to retreat where the defendant was not engaged in any unlawful activity other than the crime(s) for which the defendant asserts the justification. If the defendant [was not engaged in an unlawful activity and] was attacked in any place where [he] [she] had a right to be, [he] [she] had no duty to retreat and had the right to stand [his] [her] ground and meet force with force, including deadly force, if [he] [she] reasonably believed that it was necessary to do so to prevent death or great bodily harm to [himself] [herself] [another] or to prevent the commission of a forcible felony. This is known as the “Stand Your Ground” doctrine. If the defendant was in a(n)[dwelling] [residence] [occupied vehicle] where [he] [she] had a right to be, [he] [she] is presumed to have had a reasonable fear of imminent death or great bodily harm to [himself] [herself] [another] if (victim) had [unlawfully and forcibly entered] [removed or attempted to remove another person against that person’s will from] that [dwelling] [residence] [occupied vehicle] and the defendant had reason to believe that had occurred. The defendant had no duty to retreat under such circumstances. This is known as the “Castle Doctrine”. The presumption of reasonable fear of imminent death or great bodily harm does not apply if the person against whom the defensive force is used has the right to be in [or is a lawful resident of the [dwelling] [residence]] [the vehicle], such as an owner, lessee, or titleholder, and there is not an injunction for protection from domestic violence or a written pretrial supervision order of no contact against that person; or the person or persons sought to be removed is a child or grandchild, or is otherwise in the lawful custody or under the lawful guardianship of, the person against whom the defensive force is used; or the person who uses defensive force is engaged in an unlawful activity or is using the [dwelling] [residence] [occupied vehicle] to further an unlawful activity; or the person against whom the defensive force is used is a law enforcement officer, who enters or attempts to enter a [dwelling] [residence] [vehicle] in the performance of [his] [her] official duties and the officer identified [himself] [herself] in accordance with any applicable law or the person using the force knew or reasonably should have known that the person entering or attempting to enter was a law enforcement officer. A person who unlawfully and by force enters or attempts to enter another’s [dwelling] [residence] [occupied vehicle] is presumed to be doing so with the intent to commit an unlawful act involving force or violence. If the jury find that the defendant who because of threats or prior difficulties with (victim) had reasonable grounds to believe that [he] [she] was in danger of death or great bodily harm at the hands of (victim), then the defendant had the right to arm [himself] [herself]. However, the defendant cannot justify the use of deadly force, if after arming [himself] [herself] [he] [she] renewed [his] [her] difficulty with (victim) when [he] [she] could have avoided the difficulty, although as previously explained if the defendant was not engaged in an unlawful activity and was attacked in any place where [he] [she] had a right to be, [he] [she] had no duty to retreat. If the jury finds that (victim) had a reputation of being a violent and dangerous person and that [his] [her] reputation was known to the defendant, the jury may consider this fact in determining whether the actions of the defendant were those of a reasonable person in dealing with an individual of that reputation. In considering the issue of self-defense, the jury may take into account the relative physical abilities and capacities of the defendant and (victim). If in consideration of the issue of self-defense the jury has a reasonable doubt on the question of whether the defendant was justified in the use of deadly force, the jury should find the defendant not guilty. However, if from the evidence the jury is convinced that the defendant was not justified in the use of deadly force, the jury should find [him] [her] guilty if all the elements of the charge have been proved.
- Justifiable Use of Non-Deadly Force (Castle Doctrine and Stand Your Ground): It is a defense to certain offenses if the [death of] [injury to] (victim) resulted from the justifiable use of non-deadly force. “Non-deadly” force means force not likely to cause death or great bodily harm. (Defendant) would be justified in using non-deadly force against (victim) if the (Defendant) reasonably believed that such conduct was necessary to defend [himself] [herself] [another] against (victim’s) imminent use of unlawful force against the [defendant] [another person] and the use of unlawful force by (victim) appeared to (defendant) to be ready to take place. (Defendant) would be justified in using non-deadly force against (victim) if (Victim) has been trespassing or otherwise wrongfully interfering with land or personal property. The land or personal property must have lawfully been in (defendant’s) possession, or in the possession of a member of [his] [her] immediate family or household, or in the possession of some person whose property [he] [she] was under a legal duty to protect. (Defendant) must have reasonably believed that [his] [her] use of force was necessary to prevent or terminate (victim’s) wrongful behavior. If the defendant is in [his] [her] [dwelling] [residence] [occupied vehicle] [he] [she] is presumed to have held a reasonable fear of imminent peril of death or bodily injury to [himself] [herself] [another] if (victim) has [unlawfully and forcibly entered] [has removed or attempted to remove another person against that person’s will from] that [dwelling] [residence] [occupied vehicle] and the defendant had reason to believe that had occurred. The defendant had no duty to retreat under such circumstances. A person who unlawfully and by force enters or attempts to enter another’s [dwelling] [residence] [occupied vehicle] is presumed to be doing so with the intent to commit an unlawful act involving force or violence. There is no duty to retreat where the defendant was not engaged in any unlawful activity other than the crime(s) for which the defendant asserts the justification. This is known as the “Castle Doctrine”. If the defendant [was not engaged in an unlawful activity and] was attacked in any place where [he] [she] had a right to be, [he] [she] had no duty to retreat and had the right to stand [his] [her] ground and meet force with force, including deadly force, if [he] [she] reasonably believed that it was necessary to do so to prevent death or great bodily harm to [himself] [herself] [another] or to prevent the commission of a forcible felony. This is known as the “Stand Your Ground” doctrine.
- Scientific Evidence: Blood, breath, urine, DNA, and other types of scientific evidence may all be challenged by our Orlando Criminal attorneys by pre-trial motion or at trial.
- Search and Seizure: Evidence collected by law enforcement during a stop of the defendant or of his or her motor vehicle is subject to scrutiny. Other than mere encounters between law enforcement and citizens (which require no legal justification), a person may only be subject only to a brief detention by law enforcement if there is a reasonable, articulable suspicion of a law violation, or in other limited circumstances. To constrain someone further constitutes an arrest that must be based on probable cause. A search and seizure by the government of a person or his property when there is a reasonable expectation of privacy, that results in evidence being collected, generally requires a warrant. The timeliness and manner of the execution of the warrant are issues commonly subject to challenge through a pre-trial motion to suppress. If there is no warrant, the burden is on the government to overcome any challenges raised by the defense to show that a valid exception to the requirement of a warrant existed. Such exceptions include voluntary consent having been given, the evidence being in plain view, a search which is incident to a lawful arrest, when probable cause exists (sometimes based on a “K9” search or the odor of cannabis), inevitable discovery, and in exigent circumstances.
- Statements: Evidence of a defendant’s admissions, confessions and statements are subject to scrutiny, as well. “Miranda Warnings” are required only when a person is subject to a “custodial interrogation.” Confessions are frequently challenged if there are coercive tactics used by law enforcement. .
- Time Limitations (statute of limitations): In Florida, there are time limitations for when a person may be prosecuted for an alleged crime. These time limitations are established in [chapter 775.15, Florida Statutes]. This is commonly referred to as the Statute of Limitations. Generally, the most serious felonies (such as murder, Lewd and Lascivious Molestation of a child…) are known as capital, life felonies, or first degree felonies. There is no time limitation for these charges. A second degree felony has a four year limitation. A third degree felony has a three year limitation. A first degree misdemeanor is two years. A second degree misdemeanor is one year. There are many offenses that have different limitations, such as some Theft/Fraud charges that carry a five year limitation. Of important note, the courts will not likely dismiss a case on a “limitations” grounds if the defendant has been absent from the State or absconded. There are many other things to consider when dealing with a time limitations issue, such as when the courts consider a prosecution to have commenced for purposes of calculating the time. These issues are complex, subject to interpretation, and require the attention of a skilled Orlando criminal attorney.
- Venue: It must be proved, only to a reasonable certainty, that the alleged crime was committed in the county or within the areas of the counties named in the charge.
For any type of criminal charge you may face in Orlando and all of Central Florida, including Orange, Osceola, Seminole, Lake, Brevard and Volusia county, the attorneys at Longwell Lawyers know how to help you. We have attorneys and staff available who are fluent in Spanish, Portuguese, Greek and English. Please contact Longwell Lawyers for a free consultation, at 800-426-5758.