Legal Practitioner Pointers

May 2019

January 8th, 2018. A first chair jury trial and… My first day of class at UCF.

In jury selection that morning I asked people about their views on the right to remain silent and presumption of innocence. The trial progressed well and we sent the case to the jury just before 5pm, barely enough time for me to make it across town in rush hour.Ten minutes before class starts I am in the classroom ready to go. Moments before class begins I finally take off my jacket, roll up my sleeves and see a text on my phone: NOT GUILTY. Bingo.

Class begins and I start my lesson in almost the same way I started that day: discussing the principles of our American republic.

Whenever I mention teaching to other lawyers I am almost always met with the question “How did you land THAT? I would love to teach.” My answer is almost always the same, “it’s complicated.” Typical lawyer response.

But really though, “how did you get here?” It boils down to three things:

REACH OUT
A few years ago I felt the need for something more than my practice as an Assistant Public Defender so I sent some cold emails to people I had never met, wanting to help the mock trial team at UCF. Emails led to coffee, which was followed by lunches, other meetings, and suddenly a classroom with ten UCF students asking me how to do an opening statement.

This experience began because I took a chance, albeit a small one. I sent an email to someone I had never met about something I was not so sure about. Then I just kept going. A later email led to teaching one, then two, now three classes.

On some level we all fear the nonresponse or even worse, the terse rebuff. If that seems like you, here is my advice: get over it.

People, especially educators, will almost always appreciate your offer for help even if there is not an immediate need. I would have never made it to that classroom on January 8 if I had not emailed a few people and taken that small chance of not hearing back.

At this point I have been to innumerable coffees and lunches just to talk to people and “pick their brains.” Almost every time that’s put me in a better position than before our chats.

While we each chart our own paths, many have been this way before and so many kind people are willing to help you along the way. Your cold emails could lead you to rich mentorship and friendship.

Don’t be afraid to send a nice note to a stranger. You might be opening up a whole new world.

ADD VALUE
Once you reach out, it is time to bring something to the table. At first, it is probably going to be a “loss” in terms of time and money. But, volunteering your time opens doors. Saying yes to a non-paying “job” as a trial team coach moved me from a lawyer to a professor.

Professors, mentors and volunteers invested their time and energy into expanding your knowledge. Your experience and practice are invaluable to a student who has never set foot in a courtroom. What may seem like a mundane story about a routine motion to dismiss might pique a student’s interest and open doors they never knew existed.

The time you spend working with students as a volunteer helps them and can help your practice. Teaching about hearsay and exceptions forced me to understand it precisely and clearly. It also gave me moments of real joy when my knowledge became their knowledge.

The best advice I received from my trial team coaches at UF: “There is no substitute for hard work and preparation.” You have to be willing to prepare, work hard and give it your all if it is going to work.

DO IT FOR THE KIDS
Three years, two competition trophies and many challenges later I am most inspired by the growth of students. What rewards more than plastic trophies is a student growing from a quiet witness to your best attorney over a few months. It is when a student goes from word-vomiting every question to confident, critical cross examinations. It is a moment when you ask why third party candidates struggle to succeed and a student lays out a brilliant, sound analysis.

The thank yous are few and far between and, believe me, I have read more than my fair share of emails that are not “kind.” However we owe it to the next generation of lawyers to make their practice better than we found it. This is through keeping calm with sometimes angsty undergraduates and being honest with our peers. Displaying honesty, fairness and integrity will set you apart from those who seek financial or other edification.

Your drive for the students will drive the students. The good ones will move heaven and earth if you tell them they can. Every time I stand in front of the class I remind myself that my role is that of a conduit, not a fount.

WHAT’S NEXT
Today I consider myself a part-time lawyer and a mostly full-time teacher. The journey that began several years ago is taking an exciting turn in the fall of 2019 as I pursue a PhD. at the University of Georgia. Every experience, from the first cold email to that thrilling January day has led me here.

If you want to share what’s been given with you, do not wait, reach out and being your journey. Franklin Delano Roosevelt said: “Take a method and try it. If it fails, admit it frankly, and try another. But by all means, try something.” Send that first email, give your time and, above all, do it for the kids.

-Matthew Baker, J.D., Esq.

April 2019
Many clients, in criminal cases, choose to exercise their right to remain silent at trial. For them, one of the benefits of not testifying is the jury will not learn of their prior convictions. However, defense counsel may inadvertently open the door to the admission of these convictions even without calling the client to the stand. Your strategy and preparation are essential to avoiding “opening the door” to your client’s record at trial. This strategy begins long before trial and requires the resolve to carry the argument through closing arguments.

Florida Statute §90.806(1) provides: “When a hearsay statement has been admitted into evidence, credibility of the declarant may be attacked, and if attacked, may be supported by any evidence that would be permissible for those purposes if the declarant had testified as a witness.” This permits the introduction of a defendant’s prior convictions when the defendant elicits his or her own exculpatory hearsay statement through another witness at trial.

The first step in addressing this issue is determining whether the defendant has made an exculpatory hearsay statement. Note, the threshold inquiry is not whether the statements are exculpatory, but whether they are hearsay. If the statement is not hearsay, the credibility of the declarant is not an issue. If credibility is not at issue, the defendant’s credibility cannot be attacked, and the defendant cannot be impeached with his or her prior record. In Gudmestad v. State, 209 So. 3d 602 (Fla. 2d DCA 2016) the defendant’s statements elicited by the defense were not offered to prove the truth of the matter asserted and therefore were not hearsay. The Second DCA found the lower court’s admission of prior convictions to be harmful error when used to attack the defendant’s credibility.

When a State witness testifies to hearsay statements of the defendant this does not open the door to admission of the defendant’s prior convictions. Rather, defense counsel may cross examine the State witness about other relevant statements made during that conversation without opening the door. In Foster v. State, 182 So. 3d 3 (Fla. 2d DCA 2015) the Second DCA held once the State presented a portion of Foster’s statement, Foster was entitled to have the jury hear the remainder of his statement without fear of placing his credibility at issue. The lower court erred in finding defense counsel’s cross examination opened the door to impeachment by prior convictions. The Second DCA reversed the conviction because the case turned on the credibility of the defendant. The court also found the jury’s knowledge of the defendant’s prior convictions could have contributed to the verdict. As a result of the case turning on Foster’s credibility, it could not be said beyond a reasonable doubt allowing the jury to learn of his prior criminal record did not contribute to the verdict. The conviction was therefore reversed.

The State also cannot engineer a cross examination of a defense witness to later lead to admission of the defendant’s convictions. In Huggins v. State, 889 So. 2d 743 (Fla. 2004), the State elicited an exculpatory hearsay statement of Mr. Huggins on cross examination of a defense witness. At the close of the defense case, the State requested the court take judicial notice of the defendant’s nine (9) prior felony convictions. The State also requested the court instruct the jury they could consider the convictions in assessing Huggins’ credibility. The trial court reasoned that the defense initially put on testimony from the witness attributing a hearsay statement to Huggins. The State objected to the statement coming in on hearsay grounds, the court sustained the objection, and defense counsel then indirectly elicited the same information by asking if the witness had knowledge of the hearsay statement. On cross examination the State asked, “So your answer to counsel’s question was based on what Mr. Huggins told you?” The court found the State’s question was designed to reveal the implication placed before the jury by the defense. Huggins had therefore opened the door to his own impeachment. The defense argued the defendant’s nine (9) felony convictions should have been excluded because the probative value was outweighed by the unfair prejudice. The court overruled that objection and informed the jury of the fact the defendant had nine prior felony convictions. However, in an effort to limit the danger of unfair prejudice the court did not inform the jury of the nature of the crimes and gave a limiting instruction regarding the jury’s use of the information. The Florida Supreme Court affirmed because the statement was elicited by the defense, not by the State.

Additionally, courts cannot admit unredacted certified copies of the defendant’s prior convictions when a defendant elects not to testify. In Mathis v. State, 135 So. 2d 484 (Fla. 2d DCA 2014), the appellate court found error in the admission of certified copies of the prior convictions. First, the defense had elicited testimony from a law enforcement officer that Mr. Mathis, in speaking with the officer, made no admissions. While the defense had opened the door to impeachment the court was found to have abused its discretion by admitting certified copies of the judgments and sentences. Had the defendant taken the stand the State would have been limited to asking of the existence and number of priors. Only if the defendant answered untruthfully would any of the details of the priors be admissible. Second, the court did not wait to find out if Mr. Mathis was going to testify. Finally, the court’s failure to give a limiting instruction also prejudiced the defense.

Defense counsel may learn of exculpatory hearsay statements when questioning witnesses at deposition. It may require filing a Brady1 or Giglio2 motion to obtain a court order requiring the State to provide said statements. There are a number of questions the defense should answer to prepare to address this issue: who were the statements made to; who else was present; will the statements be elicited on cross examination of a state witness, and will a defense witness be testifying to the statements? If a defense witness will be testifying to the statements, the witness’ name and address must be provided to the State in discovery. Defense counsel must know about all of the client’s prior convictions. The State, under the rules of discovery, has the obligation to give notice of prior convictions, and the State must provide certified copies of the judgments and sentences if they intend to use the convictions at trial.

Be prepared to object to the judgments and sentences being admitted and sent back to the jury. The initial argument to be made to the court is the statements are not hearsay. Should the court overrule that objection, object on the grounds that the prejudicial value outweighs the probative value. Ask that the Court defer ruling on the State’s request to admit your client’s prior convictions until the defendant decides whether to take the stand or not. Until your client makes that pivotal decision the court should not admit the prior convictions. The Defendant may choose to testify and render the issue moot. Be prepared to provide the Court with a proposed instruction informing the jury of the prior convictions and prepare a limiting instruction on the purpose of this evidence for the Court to read. In addition, you may want to ask for a special jury instruction to be included in the instructions for deliberations. Do not forget to address this issue in closing argument because prior convictions must not be considered proof of guilt.

In conclusion, it is important for the defense to make a strategic decision about opening the door to a client’s prior convictions coming into evidence. First, determine whether your client made any exculpatory hearsay statements. Second, know whether your client has any prior convictions. If the State may argue for the admission of prior convictions know what objections should be made. Be familiar with the proper procedure for the court to admit the convictions. Without proper preparation and zealous advocacy your client’s record could make or break a victory at trial.

1Brady v. Maryland, 373 U.S. 83 (1963)
2Giglio v. United States, 405 U.S. 150 (1972)

-Patricia A. Cashman, J.D., Esq.

March 2019
We all know that going through the divorce process is not easy or enjoyable. Divorces tend to create family discord and cause issues for children and those within the family nucleus.

When a divorce is imminent, the anxiety and stress affecting your client can make it difficult for you to do your job. The emotional aspects of litigation are just as important as the tactical approach you decide to use in Court to justify your client's position. Typically, a divorce is pursued so that both sides feel that they had an equitable result, that sentiment is not always shared by the parties involved. That leads to feelings of culpability, psychological detriment, and remorse. As a practitioner, it is beneficial to provide clients with a road map of the divorce process. This will help reduce the turmoil involved with filing dissolution of marriage.

Even when a divorce is done by mutual agreement, parties may still harbor emotional scars and ill will towards the other party. For many, happiness fades and it seems almost impossible to rediscover. However, like countless circumstances in life, with the right tools your client's will be able to find a renewed sense of freedom and move on with their lives.

That's why, as an attorney, it is helpful to give the client's positive affirmations and words of encouragement. Not every client will appreciate this exercise, but for the right client, these words will speak volumes.

  1. Divorce is not the end! It is the beginning of a new life with different circumstances involving emotional, physical and environmental adaptations. Fear can certainly cripple your client under these trying times, but embolden them not to let fear win. Tell them to look at this as an opportunity to draw new goals, erase the past and make new memories.
  2. Feelings and emotions after a divorce are similar to a seesaw. The ebb and flow of emotions linger for quite some time. However, tell them not to forget who controls their feelings. Help them recognize when they are being manipulated so that they are able to stop this vicious cycle. If your client feels as if they are unable to control their feelings, ask them to seek professional help. Counseling can aid them to shed the past and instill new skills for tackling the future.
  3. Now that your client's new life has begun. Help them map out new goals and dreams for themselves and their family. I like to think of it as creating a new bucket list. Remind them that they can now do activities with their children they've always wanted to do, but never had the opportunity to.
  4. There is a saying that: "One nail, can remove another nail," Tell your client's not to be in a hurry to find another partner. Remind them to keep calm and focus on having a peaceful mind and heart. Your client's need time for themselves, they also need space to reflect, heal and to assimilate what just happened. Generally, it is always exciting to have a new romance, but that can quickly wear off. If your client takes time to focus on self-healing, they will ultimately be a better partner, friend, and parent. Practice visual imagery with them. Remind your client what it feels like to get your hair done, buy a new outfit, or get a new car. Use those warm and fuzzy feelings to help them envision a lifetime of happiness. For your client, it may seem impossible when they are in the crux of this pain, but remind them that there is light at the end of the tunnel.
  5. There is no doubt that the process of divorce is painful for your client. However, they should understand that divorce has a beginning and an end. Once it is over, convey to them to try not to feel guilty. It will be challenging for your client to reject feelings of culpability. Reminding them that the future has yet to be written may help with some of these negative associations.
  6. Remind your client to keep their mind, their body and their soul brimming with activity. They can volunteer, rekindle old friendships, or get a massage. The list of opportunities goes on and on, but ideally, as their lawyer you are able to help them see life from a different perspective.
  7. A client needs time to recover, but that endeavor depends on the person and their circumstances. It is impossible to give a client a finite number of years or months that it will take for them to heal. Every person and situation is different, so what works for you, may not work for them. It may take them a few months; it may take them a few years. Pertinently, they should keep their expectations low, and not anticipate that they will have overnight results. Rome was not built in a day, and neither will their new life. Clients may need to take baby steps towards this fresh vision and engage in opportunities that will move them closer to their goals at a turtle's pace.
  8. As a practitioner, it can be easy to forget what our clients are experiencing because of the routine of the job. We have to remind ourselves that not only are they seeking legal advice, but some client also needs a compassionate advocate. Some visual awareness exercises may help them develop more positive outlooks during the divorce process. Some clients may have difficulty sleeping perhaps they can try meditating before bed or thinking of something positive in their lives: an experience that they enjoyed with someone (who is not their ex); something that they liked in the past; something that they enjoy with their children, etc. They can try to do similar exercises in the morning.
  9. What may seem like common sense to a Divorce Attorney is all too muddled for our client's eyes. They may need simple reminders to avoid going to places or seeing people that elicit negative feelings from their past. If they continue to put salt in their wounds, they may not close or heal properly. The same advice applies to social media, encourage them to stay off social media, stop looking at their ex's profile or checking out their Instagram or Twitter posts. Perhaps ask them to take a social media break or block offending contacts from their profiles while the case is pending. If they have children, consider having them use parenting apps such as Two Houses or Talking Parents to communicate instead of texting or calling.
  10. Encourage them to look for new activities and relationships that are part of their newfangled life. Surround themselves with individuals that lift them up and support their efforts to redefine their individuality. Give them the tools to embrace change, and resist the temptation to fall into old habits.
  11. Provide guidance about avoiding drastic changes while their case is pending. Remind them that their emotions are still fragile and they may want to think before they act.
  12. Finally: encourage them to lean on friends and seek only those who can listen with understanding and patience; respect their opinions and emotions and support their sincerity and heart. Feeling isolated may have devastating consequences for your clients. Knowing that they are not alone in this endeavor and that you empathize with their position may lead to a more positive resolution in your cases.

-Irene Pons, J.D, Esq.

February 2019
It is well settled precedent that in criminal trials an accused’s prior criminal history has limited value.  In fact, for years, the type of inquiry regarding this topic has been limited to three questions:  Have you ever been convicted of a felony?  Have you ever been convicted of a crime involving dishonesty or untruthfulness?  And if the answer to either of these questions is yes, then how many times have you been convicted of these crimes?  These questions were rarely even reached unless the Defendant took the stand.  Yet, despite Florida’s constantly evolving self-defense statute, it was always thought that going beyond these three questions was taboo.  However, this belief has recently been called into question under Florida’s Stand Your Ground law.

As most practitioners know under Florida Statutes Sections 776.012 and 776.013, Florida retreated from the Castle Doctrine in favor of a less restrictive standard.  Under Stand Your Ground, there are two scenarios where an individual is justified in the use of deadly force.  The first is if the person reasonably believes that deadly force is necessary to prevent imminent death or great bodily harm to himself or herself, or another, or to prevent the imminent commission of a forcible felony.  See Fla. Stat. Sect. 776.012 (2018).  The second circumstance is where the person acts under and with a reasonable belief as to the necessity of force in the context of dwellings, residences, or vehicles.  See Fla. Stat. Sect. 776.013 (2018).  In both cases, it is no longer necessary for the individual to be within the confines of his or her home nor is there any duty to retreat.  See Fla. Stat. Sect. 776.012(2) (2018).

Yet at the core of the Stand Your Ground defense is the belief that the person invoking the defense is not engaged in any illegal activity.  Indeed, evidence of illegal activity on the part of the accused can be entered into the record to negate the protection of Stand Your Ground forcing a trial on the merits.  Of course, this begs the question when presented with a client who possesses a criminal background, more specifically a convicted felon, is he or she prevented from raising stand your ground at all without the fact finder hearing something about a prior criminal history when a firearm is involved?  For a convicted felon to stand his ground with a gun doesn’t it require the commission of the crime of possession of a firearm by a convicted felon?

The defense attorney in this scenario is stuck in a metaphoric Catch-22.  Should she avail herself of this defense to help her client or will the mere knowledge that the individual is committing the crime of possession of a firearm by a convicted felon result in an unintended and unfavorable outcome?

Florida Statute Section 790.23 states in relevant part that it is unlawful for an individual to possess “any firearm” if they are a convicted felon.  Id.  Of further concern is that in many jurisdictions in Florida there is no exception to this crime for convicted felons acting in self-defense.  For instance, in Coleman v. State, the Fourth District Court of Appeal clearly ruled that under no circumstance should a convicted felon possess a firearm.  See Coleman v. State, 345 So.2d 1093, 1093 (Fla 4th DCA 1977).  Relying upon a decision out of the First District, the court held, “self-defense is not a viable defense to the offense of possession of a firearm by a convicted felon.”  Id. and see Dardy v. State, 324 So.2d 178, 178 (Fla 1st DCA 1975).

However, the First District later retreated slightly from Dardy in the case of Munigin v. StateSee Mungin v. State, 458 So.2d 293, 295 (Fla 1st DCA 1984).  There a trial court erred in excluding testimony of self-defense by a DOC inmate who had picked up a knife in a prisoner scuffle where he was not the aggressor.  See id.  Yet the Munigan case seemed to focus on a defendant’s time to reflect on his possession of a weapon more than on whether the action was necessitated by self-protection from harm.   See id.

The Third District Court of Appeal for Florida also seemed to veer marginally away from an all-out ban on convicted felons asserting self-defense claims through the case of Marrero v. State, 516 So.2d 1052, 1056 (3rd DCA 1987).  Here a convicted felon accidently shot a would be attacker after the firearm was wrestled from the aggressor.  See id. at 1053.  While there was a discrepancy between the defendant’s testimony and law enforcement’s recount of the events, the trial court failed to properly instruct the jury on self-defense.  See id. at 1054.  The issue focused again on time for self-reflection.  See id. at 1056.  Specifically, the DCA concluded that a jury could have found from the facts that enough time had passed between the necessity of protecting himself from his attacker and Marrero’s interaction with law enforcement.  See id. Nonetheless he was still entitled to a proper jury instruction requesting that the fact finder specifically determine he could have recognized the consequences of his continued possession.  See id.  “While Mungin does not expressly announce that the defendant's cognitive appreciation of the consequences of his possession is to be part of the required necessity instruction, we have no difficulty in concluding that the jury must be instructed that where the defendant retains the weapon after the necessity ends, he may not be convicted unless the jury finds that he continued to possess the weapon after he had sufficient time to reflect on the consequences of his possession.” Id.

Yet despite the Third DCA’s seemingly pro defense ruling in the previous cases, in 2012 this court ventured clearly into unchartered territory with its ruling in the Darling case. See Darling v. State, 81 So.3d 574, 579 (3rd DCA 2012).  Here the appeals court reviewed whether a trial court erred when it permitted evidence into the record that the defendant was a convicted felon.  See id.  The basis for the admission was the defendant’s assertion of a Stand Your Ground defense.  See id. at 576.  The court’s rationale focused on the language in the statute about a person not being “engaged in an unlawful activity.” Id. at 577.  Since the defendant was a convicted felon, he committed the crime of possession of a firearm by a convicted felon when he tried to stand his ground against his attacker with a gun.  See id. at 579.  This would be an “unlawful activity” under the statute and as such, the jury needed to know these facts to determine that Stand Your Ground was not a viable defense.  See id.  The trial court permitted the jury to know the defendant was a convicted felon because the door had been opened simply by asserting Stand Your Ground.  See id.

Therefore, moving forward, practitioners should be wary in raising Stand Your Ground when representing convicted felons who protected themselves with firearms.  A question exists if such a defense practically even exists for this population after the Darling ruling.  While the Florida Supreme Court has yet to weigh in, recognizing that this pitfall is out there will enable defense attorneys to ensure they are providing competent, legal representation.

-Marc Consalo, J.D., L.L.M., Esq.