Criminal Process and Procedure in the State Of Florida

Criminal Process and Procedure in the State Of Florida

by Linda Smith

The United States Constitution, and its amendments (bill of rights) and the rules of statues and procedure are the main components that shape the criminal process .These laws evolved from English common law. The Constitution is comprised of the basic guarantees and rights of due process as well equal protection under the law. These rights and guarantees give inalienable rights to the citizens of the United State.

Crimes may be classified in numerous ways. Primary, they are classified as either mala in se or mala prohibita. Mala in se crimes are those acts that are not only crimes but are also considered morally wrong, such as, rape, murder, and robbery. Common law crimes are considered mala in se crimes. Mala prohibita crimes are not considered morally wrong even though they are crimes. Mala prohibita crimes are wrong because statutes prohibit them (Wallace, H. C & Roberson, and C. 2011. p. 6)

Crimes are also classified as crimes against the person, crimes against property, sex crimes, victimless crimes, professional or white-collar crimes, and crimes against public order. White-collar crimes are nonviolent crimes of personal or corporate gain committed by people while working, in occupation, or business or in defrauding other people or the government (Wallace, H. C & Roberson, and C.  2011. p. 6) Victimless crimes are those in which there are no direct victims, such as gambling, prostitution, and using drugs. Unlike murder, rape, or robbery, two or more people, all of whom readily participate in the crime, commit a victimless crime. In some cases, it is also called a “public order” (Wallace, H. C & Roberson, and C.  2011. p. 6).

The main purpose of the majority of trials whether they are criminal or civil, is to resolve a dispute(s) about facts. Both parties present evidence to the fact finder, (i.e. judge or jury), who examines evidences presented on both sides of the case and evaluates the evidence to try to resolve the controversy. “The rules of law guide the fact finder in evaluating the evidence “Underwood, B. D. & Sundby, S. E. (n.d.).

Criminal procedure deals with the set of rules governing the series of proceedings through which the government enforces substantive criminal law. Municipalities, States, and the Federal government each have their own criminal codes, defining types of conduct that constitutes crimes (Anonymous, 2000 CRS). “Title 18 of the U.S. Code outlines all federal crimes, typically, federal crimes deal with activities that extend either beyond state boundaries or that directly affect federal interests” (Anonymous, 2000 CRS).   Rule 3.850. , governs the procedure in all criminal proceedings in Florida state courts including proceedings involving direct and indirect criminal contempt, proceedings (Anonymous, n.d., p.1).

The Procedure, Statues And Rules Guide Criminal Process

Pre-Trial Proceedings

After an arrest, the case is given to a prosecutor, known as the State’s Attorney. As chief law enforcement officer of his county, the prosecutor’s  job is to take all evidence gathered by the police, examine the evidence and determine what, if any, specific charges to file against the accused, and after collecting the relevant evidence, prosecute the case at trial in order to secure the conviction of the accused (courtwatchflorida.org) .

Grand jury

Grand Jury is comprised of approximately 23 adult citizens selected by law to sit as a jury sworn to investigate criminal activity. They hear evidence by the prosecutor against parties accused of wrongdoing in order to determine whether there is sufficient evidence to bring such parties to trial. If there is sufficient evidence, the grand jury issues an indictment for felonies and misdemeanors. The rule that applies is the 5^th amendment in the United States constitution. “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger”(US.Const.5th amendment )

 Preliminary Hearing

The “Initial Appearance is the Federal government’s term for the first hearing.  At the defendants’ first appearance, the defendant is advised of charge(s) and Rights .At the defendant’s first appearance the judge is supposed to immediately inform the defendant of the charge and provide the defendant with a copy of the complaint and all affidavits file with it (Anonymous, n.d. , p.35).  The judge adequately advises the defendant that of his or her rights which are as follows; “(1) the defendant is not required to say anything, and anything the defendant says may be used against him or her,  (Miranda rights) based on the fifth amendment; (2) if unrepresented, the defendant has a right to counsel, and, if financially unable to afford counsel, that counsel will be appointed; and  with is the  6^th amendment, (assisted by council)(3) the defendant has a right to communicate with counsel, family, or friends, and if necessary, will be provided reasonable means to do so the aforementioned procedures are applied in both state and federal court also covered by the 6^th amendment  (Anonymous, n.d. , p.35)

 During preliminary hearing, the government is required to present evidence establishing probable cause the defendant committed the crime. The defendant is entitled to appear with his attorney to challenge the probable cause evidence. The government owns laboratory facilities, it hires forensic analysts, examines and test gathered materials and testify as expert witnesses at trial (Moses 2004). The defense gathers information to prepare for trial by obtaining formal and/or informal discovery of the information, upon which the prosecution bases the accusation (Moses R. 2004). This too is covered by the sixth amendment of the constitution. “and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence (const 6^th amendment).

 If the judge determines that there is insufficient evidence of probable cause, the case is dismissed with no further proceedings. After a dismissal at the preliminary hearing stage, the government may continue to investigate and may re-file charges against the defendant later, if it believes that newly discovered evidence is sufficient to meet the probable cause standard (Lawson, p.176)

During the preliminary hearing the Bail is set .The defendant has a right to pretrial release, unless charged with a capital offense or an offense punishable by life imprisonment and the proof of guilt is evident or the presumption is great (Florida Bar, p.36). Whether such release is by surety bail bond or recognizance bond or some other form, in a condition of pretrial release, the defendant must avoid any contact of any type with the victim, except through pretrial discovery pursuant to the Florida Rules of Criminal Procedure (Anonymous, n.d. , p.35).  A date is now set for Arraignment.  In Accordance with The Constitution; “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted” (US.Const.Amendment VIII)

Arraignment

In the arraignment phase of the trial, once the indictment or information has been issued or filed, the defendant is brought before the court to be formally charged with the crime. During the arraignment, the charges are read in detail to the defendant, the defendant is advised of his rights and asked to formally enter a plea to the charges (Anonymous, n.d.).The court will insures that counsel represents the defendant. The court may hear arguments for and against setting or reducing bail for the defendant’s release pending trial. “If the defendant pleads guilty at the arraignment, the court will carefully question the defendant to determine whether the guilty plea is being made knowingly and voluntarily. The court is essentially seeking to ensure that no one has improperly coerced the defendant to enter a guilty plea” (Florida Bar). The defendant is protected by the sixth amendment of the constitution “compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence” (US const. 6^th amendment).The court instructs the defendant that by pleading guilty, they are waiving their rights to a trial and choosing to proceed immediately to the penalty phase of the criminal process (Lawson, p 177). The plea is entered and bail may allow to be re-examined. If the court is satisfied that the defendant is voluntarily entering a plea of guilty, a date will be set for sentencing. Defendants not choosing to plead guilty at arraignment have their case scheduled for trial (Lawson, p 177). The bail rule apply to Amendment VIII of the constitution: Excessive bail shall not be required, nor excessive fines imposed (const.8^th amendment).

Plea bargaining can conclude a criminal case without a trial. Plea bargaining is extensively used in the criminal justice system, but is not popular, because plea agreements are less than a victory for all involved. Prosecutors find it disconcerting to offer admitted criminals lighter sentences than those authorized by law. Similarly, most criminal defendants are not ecstatic about admitting criminal behavior without benefit of a trial.  Despite the reservations, plea agreements are used resolve roughly nine out of every ten criminal cases.  Many legal observers question the propriety of widespread plea-bargaining occurring (Florida Bar). In "Utah v. Casey," the Utah Supreme Court ruled that victims of crime have the right to tell judges when they object to plea bargains and should expect state prosecutors to help them be heard" ( Anonymous, 2002, March).

Pre-Trial Motions

In pretrial Motions, both the prosecution and defense begin to plan their strategies, once a case is scheduled for trial .A motion is a tool of writing that attempts to maneuver the court in the moving parties favor. Both prosecution and defense utilize this strategy, presenting evidence in writing and asking for the court to move on the evidence or rule.  The defense motion may attack the sufficiency of the charge(s) or to suppress evidence. There may be motions regarding mental condition of the defendant, or asking for conditions of pretrial release to be modified, or a motion to dismiss may be filed.  Motions in limine are very important strategies used to raise objections to evidence before trial. They are also important because if the prosecution’s evidence is found untrue or inaccurate, the case may be dismissed (Bergman, N.P. & Berman, S.J. n.d.).

Trial

        Trier of Facts (Judge or Jury)

The defendant may opt to have his case tried before a judge or a jury. If the defendant chooses to have the case tried by a Judge, the Judge hears all factual evidence, decides evidentiary rulings, rendering the verdict at the finish of the case. If, however, the defendant chooses to have the case tried before a jury, the jury selection process will be the first phase of the criminal trial. Additionally, both prosecution and defense have the right to demand a jury trial, in some jurisdictions (Lawson p.178).Jury rights come from Amendment VII of the US constitution.

Jury selection (voir dire)

The process of selecting and questioning the jurors is called “voir dire”. In Federal and numerous state courts, the judge carries out this process using questions suggest by the attorneys as well as questions the judge decides to ask (Bergman, P. and Berman, S.J., n.d.).

Juries in most cases consist of 12 people during serious felony cases, although some states allow for six people juries in less serious misdemeanor cases.  If the defendant chooses to have the case tried before a jury, the jury selection process is the first phase of the criminal trial (Bergman, P. & Berman, S.J. n.d.).

In most jurisdictions, potential jurors are chosen from voter or license registration lists. Both defense and prosecution endeavor to identify jurors who can listen to the evidence in an objective manner and render a verdict based exclusively on the evidence submitted at trial (Lawson, p.178).

Opening statements

After the jury selection is completed, the trial begins with opening statements by the government prosecutor.  Lawson states, “In the beginning of the trial, the defendant has the presumption of innocence, and the government has the burden of proving each of the material elements of the crime beyond a reasonable doubt” (Lawson, 1995 p. 179).]

The prosecution presents its main case through direct examination of prosecution witnesses by the prosecutor (Bergman, P. & Berman, S.J. n.d.). In opening statements, usually the prosecutor begins by explaining the government’s theory of the case to the jury and how the government’s evidence will establish that; that there was a crime committed and it will prove that the defendant is responsible for the crime, (Lawson, p.199). Following the governments’ opening statement, the defense presents its opening statement and theory of the case. This is the first opportunity the defendant has to refute the government’s theory of the case, and set the stage for alibi or other types of defenses (e.g., self-defense, insanity). No evidence is introduced, during the opening statements, and each side explains its hypothesis of the case (Lawson, p.179). If the parties will be making opening statements, it should be explained that those statements are not evidence, but merely a brief overview of the evidence that the jury will hear. Before a defendant may possibly be found guilty in a criminal trial, the prosecution must establish beyond a reasonable doubt the required actus reus and the required mens rea (Wallace, & Roberson p.42). The easiest way to understand mens rea is the form of mental states that qualify as mens rea: g general intent, specific intent, transferred intent, and constructive intent. Constructive intent includes situations in which recklessness or negligence is sufficient to establish mens rea. Transferred intent refers to the situation in which one intends to harm one person and instead harms another (Wallace& Roberson p. 49).

State’s Case

There is no crime if Actus Reus and Mens Rea cannot be proven. Both parties present evidence to the fact finders (judge and jury), who evaluates the evidence. A number of rules of law guide the fact finder in evaluating the evidence; the evidence must be weighed to see which party should have the benefit of the doubt.  “In criminal cases, the prosecution has the burden of proof, to prove guilt "beyond a reasonable doubt."  

Defendant’s Case

Except for strict liability crimes, all crimes contain an Actus Reus and a mens rea. The term defense is used to indicate those matters that, if successfully presented by the defense, will negate the existence of either actus reus or mens rea. Even if the government can prove the essential elements of the offense, the defense may raise one or more defenses to the criminal prosecution that could result in acquittal, if he can prove lack of mens rea. Defenses to criminal conduct can be grouped into three categories: criminal responsibility, justification and excuse, and procedural defenses (Wallace & Roberson p.124).

Most defenses raise issues involving the defendant’s emotional state. In addition, certain criminal responsibility defenses occur from the defendant’s mental state.  “Defenses that go to the mental capacity of the accused are categorized as; infancy, insanity, diminished capacity, and intoxication” Wallace & Roberson p.2011. pp. 83& 94).

 In (IPV) intimate partner violence cases, quite often women allege that they suffered from battered woman syndrome in an attempt to use self-defense to justify their acts (Wallace & Roberson p.2011. pp. 83& 94). “Excuse defenses often include; stealing under duress or necessity. Justification and excuse defenses includes self-defense, protecting others, defense of property, duress, necessity, use of force in making arrests, resisting unlawful arrests, mistake, consent, and entrapment, in other words lack of mens rea “( Wallace & Roberson 2011. pp. 97 - 98)

 Testimony

Various witnesses, including the victim, testify by answering questions asked by the prosecutor, defense attorney and even the judge, as they relate to the criminal acts, which were committed, throughout the trial (Berger and Berman, n.d.).

Closing Arguments

The closing argument is the final statement by both opposing sides to the jury or court .Its purpose is to summarize the evidence each as brought forth and evidence that each side has failed to establish”( Black’s Law Dictionary,1991 p.255). The defense makes its closing argument, summarizing the evidence as the defense sees it, explaining why the jury should render a not guilty verdict, or allow a guilty verdict on a lesser charge (Bergman, P. & Berman, S.J. n.d.).  Black’s law dictionary states, “such does not constitute evidence and maybe limited by time or rule” (Black, H.C., Nolan, J.R. e.d and Nolan-Haily, J.M. eds. 1991.p.255).

Jury Deliberation

In order to convict a defendant, the verdict must be unanimous. If all jurors find the defendant “not guilty,” the accused is immediately released. If the jury is unable to make up its mind either way that is a “hung jury” In the hung jury situation the prosecutor is entitled to try the case again before a different jury, if the prosecutor decides the case is not worth retrying, the accused is set free (Anonymous, n.d)

Verdict

 At the conclusion of the deliberation process, if the jury has reached a unanimous verdict, they will advise the judge. The judge will then call all of the parties back to the courtroom to hear the jury’s verdict. Once the verdict is announced, each juror is polled to assure that the verdict is unanimous. If the verdict is acquittal, the defendant is free to go and, pursuant to constitutional double jeopardy standards (Const.Amendment V), and cannot be tried again.  Conversely, if the verdict is guilty, the defendant may be taken into custody and, in some cases, will have to await sentencing (Anonymous, n.d.).

At times, after extensive deliberation, the jury is cannot reach a unanimous verdict thus deadlocked or “hung.” at that time, they will usually advise the judge, who will encourage them to continue the deliberations in hopes of reaching a unanimous verdict. Some juries are just unable to arrive at a unanimous verdict, even after prolonged deliberations. Under those circumstances, the judge declares a mistrial, and the jury is excused.  When there is a mistrial because of juror deadlock, the government has the option to re-prosecute the case again with a new jury. A mistrial due to a hung jury does not raise double jeopardy concerns because the original trial did not result in final determination of the defendant’s guilt or innocence; trying the defendant again is considered a continuation of the previous trial (Lawson, 1999 p183)

Sentencing

In some jurisdictions, the same jury that convicted the defendant will take part in the sentencing phase and determine a suitable punishment. In other cases, after verdict, the jury members are thanked for their service and excused, at a later date the judge will determine an appropriate punishment for the defendant (Lawson, 1999 p.183)

Indeterminate sentencing: is still an accepted practice in many states, though, by the early 1970s, indeterminate sentencing was under attack by criminologists, law enforcement groups, and legislatures. The wide difference between sentences and concerns about whether   rehabilitation was attainable, led to the reform movements that established determinate sentence laws (Wallace & Roberson 2011. p. 308).

Determinate sentences: To assure a specific term the offender will serve in prison. An example of determinate sentencing is the Federal Sentencing Reform Act of 1984, established the U.S. Sentencing Commission to develop guidelines that scale punishment to the gravity of the offense and the defendant’s criminal background (Wallace, H. & Roberson, 2011. p. 308).

Presumptive Sentences is a form of determinate sentencing, but it allows for establishing a minimum and maximum sentence and a fixed point, within that range. The sentencing judge can vary from that presumptive sentence depending on the facts of each case, while remaining within the range provided by the statute. Most presumptive sentencings allow the judge to set either the lower or the higher sentence within the range (Wallace & Roberson, 2011 pp308-309)

Mandatory sentencing is a criminal sentence put in place by a legislature that establishes the minimum length of prison time for specific crimes and consequently limits the amount of discretion a judge can have, when sentencing a defendant. Sentences can include incarceration probations or supervised released orders for rehabilitation, drug treatment, mental therapy, community service and retribution the offender can be sentenced. The state of Florida has increased the minimum mandatory sentences for serious felonies that are committed with a firearm. If a person commits offenses while simply possessing a regular firearm, the person must serve a minimum mandatory sentence of 10 years. Offenses while possessing a more dangerous firearm, is a minimum mandatory sentence of 15 years. Committing offenses and if during the offense, discharges any firearm, offender must serve a minimum mandatory sentence of 20 years. If an offender commits offenses and, during the offense, the person discharges any firearm and actually shoots someone inflicting great bodily harm or death, the person must serve a minimum mandatory sentence of 25 years up to life (McCollum, B., 2008).

Appeal

The purpose of an appeal is to review decisions of the trial court or lower tribunal to determine if a harmful legal error has occurred, because it can be harmful if it affects the outcome of the case. Appeals are not trials; they are not intended to give a litigant a second opportunity to reargue the case. In Florida, Criminal appeals are heard in The Fourth District. In federal cases, appeals are heard in Supreme Court. When convicted of a crime in circuit court, that person can file a direct appeal of the conviction and sentence to the District Court of Appeal. The prosecution may appeal certain orders suppressing evidence or dismissing charges before trial. After trial, the State can appeal orders granting a new trial or a judgment of acquittal, after a guilty verdict Amendment VII gives rights to appeal (Anonymous, n.d.).

The Constitution is comprised of the guarantees and rights, which are applied to due process.  The Bill of rights are to meant to guarantees all citizen in United States the right to a trial and right to a speedy trial, the right have legal counsel present, the right to confront witnesses, the right to a jury of our own peers, not to be forced to testify against one’s self .The constitution and rules of statues and procedure are the components that shape the criminal process through the precedence of laws.  This process is continuously evolving and shaping criminal law and procedure.

Reference

 Anonymous, (n.d.) Understanding the appellate process in the fourth district court of appeal retrieved May 15, 2011 from http://www.4dca.org/ information/ appellateprocess.pdf

Anonymous (2000) (CRS) Congressional Research Service (1992 -2000). LII/Legal Information Institute; retrieved From on May 15, 2011 from    http://www.law.cornell.edu  /anncon/html/index.html     

Anonymous (2002, March). Utah: Victims have right to block plea bargains. Crime Control Digest, 36(11), 4. Retrieved March 26, 2011, from Research Library. (Document ID: 111715476.

Anonymous, (n.d.) Florida Rules of Criminal Procedure Retrieved May 15, 2011, from http://www.floridabar.org / Criminal.pdf

Underwood, B. D. & Sundby, S. E. (n.d.). Burden of Proof - The Reasonable Doubt Rule, Reasons For The Rule, Issues That Should Be Governed By The Rule; Retrieved March 28, 2011from http://law.jrank.org/pages/584/Burden-Proof.html#ixzz1HwJk2nk0

Bergman, P. and Berman, S.J. (n.d.) Criminal Trial Procedures: An Overview Retrieved Sunday, May 15, 2011 from http://www.nolo.com/legal-encyclopedia/criminal-trial-procedures-overview-29509.html

Black, H.C., Nolan, J.R. e.d and Nolan-Haily,J.M. eds. (1991).Black’s Law Dictionary 6th ed; West publishing company, Saint Paul. Minnesota.

Criminal Justice Process: Court watch. www.courtwatchflorida.org/ Training_ CriminalJusticeProcess.pdf

McCollum, B. (2008). Victim Advocate Reference Guide: Synopsis of Florida Statutes, Office of Attorney General Retrieved May 15, 2011 Retrieved from myfloridalegal.com/webfiles/ Victim AdvocateReferenceGuide.pdf

 Moses, R. (2004). Pretrial practice; development of the criminal case Retrieved May 15, 2011 Retrieved from http://criminaldefense.homestead.com/Pretrial.html

The Constitution of the United States: A Transcription; retrieved May 15, 2011 from http://www.archives.gov/exhibits/charters/constitution_transcript.html

Wallace, H. & Roberson, C. (2011). Principles of Criminal Law (5th Ed.).  Boston: Pearson Allyn & Bacon.