Your Right to Remain Silent

In our practice Baker Legal hear from clients all the time that the police did not read them their rights, meaning Miranda rights, when they are arrested. Contrary to every television show and most people’s belief – the police don’t have to read you your rights in all arrests. The police only read you your rights when:

You are in custody – that means physically not free to leave, handcuffed, in an interrogation room, in the back of a police cruiser, etc.

AND – AND – AND – AND (not to be confused with OR)

  1. They ask you questions.

Therefore, if you are merely being arrested and no one asks you anything – Miranda rights do not apply. OR If you are not in custody and you volunteer information, or they ask you questions; Miranda rights do not apply.

So in sum – there must be two events present – CUSTODY and INTERROGATION.

So what happens if you remain silent through any police questioning whatever the circumstances – GOOD FOR YOU. That’s what you should do, according to Newport Beach personal injury lawyer.

If you are stopped by the police on the street, at your house, in your car – you must give the police your name and identification if you have it – BUT THAT’S IT. You are not required to do anything else.

In a recent first degree murder case out of Palm Beach County, Florida; a woman was on trial for shooting her husband. When the police arrived at the house, she was sitting in her son’s car and made no response to the officer’s questions of whether she needed anything or would like a bottle of water.  She was not yet under arrest (or in CUSTODY) nor were those questions likely to be confused with an interrogation. During her trial, she choose not to testify – yet the prosecutor said on several occasions, including closing argument, that because she said nothing, this concluded she was guilty since an innocent person would have protested their innocence. Ultimately she was convicted of murder and sentenced to life and currently resides in the Lowell Correctional Facility.

She appealed her conviction, arguing that the prosecutor could not comment on her PRE ARREST silence, since she never testified at trial. If she had, and had said something contrary to her pre or even post arrest statements, this could be used against her to “impeach” her trial testimony. But she didn’t testify and therefore any comment on her silence could not be used against her. (Some courts including the US Supreme Court have distinguished this from POST arrest testimony and the prosecutors ability to comment which is a blog for another day – )

The Fourth DCA overturned her conviction and said that the prosecutors comments on Mrs. Horwitz’s silence were improper and have remanded the case for a new trial. Note that just because there is error in a trial the appeallate courts do not have to grant a new trial – only when the error is “harmful” meaning that the error was so severe that it potentially caused the jurors to be swayed by the error.  In some cases, not this one, but some, the evidence is SO OVERWHELMING that regardless of the error, the courts do not grant a new trial. But in Mrs. Horwitz’s case, she’s getting a new trial – if she’s convicted again of murder, she’ll probably get the same sentence – Life. She has nothing to lose, so she might as well go for it again. Good luck Mrs. Horwitz!

Visitation during the Holidays

AVOID HOLIDAY STRESSES: PRE-PLANNING VISITATION SCHEDULES

If you are currently involved in, or are one of the recently divorced with minor children, the prospect of negotiating visitation during the holidays probably seems like a frightening task. While you may have a Court Order or a Temporary Order outlining just what visitation will be during the festive season, it is not uncommon for you to feel some anxiety about potential problems that could arise, especially if your ex-spouse is a jerk. Below are some tips you can try to help alleviate some of the pressure not only during the holidays, but throughout the year to help make visitation worry-free:

  1. Try to be nice:

It’s an old adage that has special meaning during the holidays. For the sake of the kids, try not to get excited if your ex brings the kids home a few minutes late. If you know your ex is the one who is unreasonable and often misinterprets what he or she is entitled to based on the visitation order, gently remind them. If that doesn’t work, use guilt–“Y’know, it’s the holidays, can’t we just try to work this out for the kid’s sake?” Remember that despite your current feelings, there was a time where you (hopefully) cared for this other person. Remind yourself (and them, if necessary) of those better times, and try to push ahead.

  1. Notify, notify, notify

: if the ex is the forgetful type, be sure to give them a head’s up by phoning them about visitation. If talking one-on-one with your ex is uncomfortable or not advisable based on past relationship dynamics, use e-mail. E-mail is good because you don’t have to listen to them and you have a record of trying to contact in case holiday visitation becomes a legal matter. On a more practical level, if you anticipate trouble, giving your ex advance notice or a gentle reminder about holiday visitation can avoid trouble before the actual day arrives.

  1. Never alert your kids, especially small ones, if there is a problem

: This can be a bit more difficult with older kids, as they likely have enough sophistication, even if neither of you say anything, to realize that there are problems. No matter what, don’t shout, curse, or scream at your ex in front of your kids, and avoid bad-mouthing your ex to, or in front of, the children. Not only does this put the child in the unfortunate position of having to choose one parent over the other, it is quite selfish because it places your anger and frustration above the child’s welfare. Also, if you continually dis your ex in the child’s presence, your ex will likely have a strong case of parental alienation against you.

  1. Plan ahead:

Similar to notification, it is a good idea to make the other parent aware of where you and your child will be going during the holiday break. Be sure not to go outside the parameters of what the initial parenting plan and visitation schedule allow–if you cannot take the child out of state, don’t do it. Be aware that if you do go outside what the visitation schedule allows, you could be setting yourself up for some serious trouble–your ex could file a parental abduction charge against you, and the criminal and civil ramifications of that can be quite harsh and expensive for you.

These are just a few ideas to help ease the stress of coordinating visitation with a minor child.

The Right to an Attorney in Criminal Cases

Most people have watched enough television to know what Miranda rights are –

Although everyone has heard these rights, it is amazing to me, how many people waive them when the police come to “talk”.

First of all, unless you are sitting in the back of a police car, or in a police station and YOU ARE NOT FREE TO LEAVE, you are not entitled to these rights.

Secondly, just because you were arrested doesn’t mean the police have to read you your rights. If they’re not planning on talking to you, there’s no reason. I hear so many people say, “They never read me my rights.” Thinking that in itself will get them out of the crime.

Please note, even if you were in custody AND no one read you your rights AND they questioned you – you still might not get out of it. It all depends on the facts and circumstances of your case. And the lawyer you hire. Just because the police didn’t follow the rules, if your attorney doesn’t file a MOTION TO SUPPRESS, it doesn’t matter.

In a recent case out of Tampa, Florida – the police brought a man named Green into the station for questioning on several Dealing in Stolen Property charges. He was clearly in custody. They read him his rights and he said he wanted a lawyer. As happens more often than not – the cop told Green he couldn’t get him a lawyer right this minute – it just didn’t work that way. The cop continued to question Green who ultimately confessed. Although I realize this happens all the time, it’s rarely on video tape for the court to witness.

The fact that there was a videotape of the confession was lucky for Green, because the Second DCA said his confession should have been thrown out since he “unequivocally” asked for a lawyer during questioning. See Green v. State, 2nd DCA, 9/9/11

If the cops want to question you about ANYTHING – even if you know you’re completely innocent – ASK FOR A LAWYER – and stick to your guns. Don’t let them bully or confuse you. Eventually it will become your word against theirs – and who do you think the prosecutors and judges will believe?

Florida Divorce – Equitable Distribution

The recent public break-up of Arnold Schwarzeneggar and Maria Shriver raised some interesting questions about what spouses are entitled to at the time of divorce. Media sources stated that under California law, because the celebrity couple had been married since 1986, Ms. Shriver would be entitled to half of the marital estate under California’s “equitable distribution” principles. Those same sources speculated that the former Terminator star’s net worth to hover around $100 million.

Similar to the marital laws in California, Florida also has an equitable distribution scheme which provides that spouses are entitled to divvy up what they earned while married. Now, it’s easy to confuse equitable with “equal,” but that is not necessarily the case–“equitable” more closely means “what is most fair”. Often a husband or a wife who was primarily a homemaker during the marital relationship will feel as though they are not entitled to anything. WRONG!!! Courts view any kind of labor, even labor that primarily focused on maintaining the household, like childcare, doing the dishes, or paying the bills, as equal in value as going out and earning a living. Florida law also provides for spousal support and alimony. King Law can give you all the answer you need.

If you are facing the possibility of divorce, it is important to educate yourself. If you are served with a divorce petition by your spouse, be aware that you have to file a response within a certain time frame. What often happens is the spouse who files the divorce tries to convince the other that they don’t need a lawyer or that they just need to sign a piece of paper and the lawyer will take care of it. This is horrible advice. You likely are signing away your rights to significant amounts of money. Understand that the lawyer your soon-to-be former spouse is not looking out for your best interest, but your ex’s. Don’t let this happen! Eric Ratinoff Law Corp would be more than happy to help guide you through the maze of law and help you protect what is rightfully yours.

Attorney’s Fees in Family Law Cases – How do I get someone to pay for my divorce?

When people are getting a divorce there are so many heated emotions but none more so than money.

When I see a new client one of the first things we talk about is money. How much they get or how much the former spouse can take away from them. Then we talk about my fees. Inevitably the question is – “can’t the other side pay for it?” Like all things legal, the answer is “it depends”.

When you file for divorce or you answer a divorce petition, you can and should always ask for attorney fees. You can ask for them in child support, child custody, and paternity cases too. The only family law case where you will not be awarded attorney fees is in a domestic violence injunctions.

Whether or not you are actually awarded attorney fees and in what amount entirely depends on the other party’s ability to pay, your circumstances, and the judge.

If you have a question about attorney fees in injury law cases, call KCNS Law Monterey Park workplace accident lawyers. As of today – our initial consultations are free (which is subject to change).

Violation of Probation

When someone is convicted of a crime, especially a misdemeanor crime, they often think probation is the way to go. In the recent case of Chad “Ochocinco” Johnson, perhaps it wasn’t the best idea.  As you have probably read about in all of the papers, TMZ, ESPN, and countless other places, Chad Johnson was placed on probation in Broward County for Domestic Battery against his now ex wife Evelyn Lozada and given the standard 12 months of probation to include anger management classes.  (It did not help his lawyer or his case when his wife went on to release statements through her publicist about not tolerating domestic violence and shared her story with most major talk shows. For those of you unfamiliar with her, she was on the VH1 reality TV show Basketball Wives and was quite violent herself. And yes, I’m admitting I’ve watched it, once.)

The former NFL star violated his probation by not showing up to meetings with his probation officer, among other things, and his lawyer worked out a deal to keep him out of jail and get him reinstated on probation with the addition of more community service hours. Looks like a good deal, until he slaps, or pats, his lawyer on the rear and the courtroom breaks out in laughter. (For why this is inappropriate please look at the past few blogs called “How not to act in court” and “What not to wear in court”) The judge then rejects his plea deal and sentences him to 30 days in jail. While in jail he tweets “Love me through the good and the bad . . . .see  you in 30.” This is NOT going to help when his lawyer asks for a resentencing. If he’s so concerned about his 30 days, why is he tweeting? It’s like a Lindsay Lohan train wreck.

When anyone violates their probation, it is ultimately up to the judge as to whether or not they serve jail time or are reinstated on probation. Judges consider many factors when making their decision, such as remorse or the ability to take things seriously, and Johnson’s actions didn’t show either of those things. Anytime I go into court with my clients, I am very clear of what is expected of them and how to dress and act. If it looks like you take things seriously and are remorseful, you will have a much better outcome with the judge if you violate Probation. Sometimes, it doesn’t matter how good your lawyer is, if you do or say something that offends the judge in court, you are most likely going to jail. And if you tweet or Facebook about it later, no one can help you.

What may help his cause is the former Hillsborough County Prosecutor, turned Florida Attorney General, Pam Bondi, has entered in the mix on his side. She apparently told TMZ that “this event seems to be an issue of judicial temperament.” Why the Florida Attorney General is talking to TMZ of all media outlets just blows up the insanity surrounding this entire media circus. But she’s clearly on his side and thinks the judge is wrong. It will be interesting to see what sort of pull she has with the judges in Broward County. If only my clients could get this kind of backing.

Husband – Wife Marital Privilege in Florida

Do I have to testify against my spouse? Like all things legal the answer is – IT DEPENDS.

The Florida Evidence Code governs which evidence is allowed in at trial. Most of the evidence code is written to prevent prejudice before a jury. The Marital privilege is one of those. The law says that a spouse can refuse to disclose commuications “which were intended to be made in confidence between the spouses while they were married. ” (the key here is while they were married, I have many people ask, what happens if I marry him now? meaning after he’s been charged with the crime – the answer is: too bad. The communications must occur within the marriage.)

However, the law goes on to say that if one spouse is charged with a crime against the other – the privilege doesn’t apply. Domestic Battery is a good example. The Husband – Wife privilege does not apply if one spouse is charged with a crime against a child of either spouse. Also if you have any problem about your estate after getting divorced, contact Traverse City real estate lawyer.

Another exception is if the defendant spouse is the one who offers the evidence. For example: One spouse is charged with murder. He/She offers testimony that he had a conversation with his wife three weeks earlier about how someone else was going to kill the victim, or that he was going to be out of town on the day the murder occured. That is called an EXCULPATORY statement, and someone charged with murder would want his or her spouse to testify to something like that. They certainly would not invoke the privilege if the communication could potentially help him or her.

A recent Florida Supreme Court case out of Jacksonville, FL discusses the Husband- Wife privilege in detail. It seems the Husband, who was charged with murdering his father’s girlfriend after an evening of drinking and cocaine use and then burning down the house; told his wife of his plans to frame another man for the murder. While he was in jail, he befriended his cellmate, who helped him find someone on the outside to plant the evidence. He told his wife to give another man $300 to help him plant evidence on the other guy. The wife met up with the man, gave him the money, and discussed the cover-up with him. Unbeknownst to the wife – the man helping with the cover-up was an undercover cop. (This is a perfect example of why not to befriend cellmates – this guys cellmate went right to the cops!) The wife was subsequently charged with a crime for her help and pled guilty.  During the penalty phase of the trial, she was called to testify about her actions by the State.  Obviously, the defense attorney objected that the wife’s testimony was privileged. But the Supreme Court said she was merely testifying about her own ACTIONS, not the communications she had with her husband and therefore the testimony was admissible.

The wife was also called to testify about a phone call she received from her husband telling her not to go home because the house was on fire.

The Court said that although this was privileged communication between a Husband and Wife, there were so many other witnesses at trial who testified that the house was on fire, that even if the jury had not heard her testimony, they would not have changed their minds about his guilt on the arson charge. The Court calls this “harmless error,” meaning with or without the Wife’s testimony, a reasonable jury would have convicted him of arson anyway.

In review: If you are the victim of your spouse’s crime, the Husband Wife privilege doesn’t apply. If the testimony is about the defendant’s actions – rather than what he said – the privilege doesn’t apply. The only time the Husband Wife privilege applies is when the parties have a reasonable expectation of privacy while speaking to each other. And most importantly, don’t befriend your cell mate!

Pasco County Domestic Violence Injunctions

How much evidence is enough evidence for a judge to grant a domestic violence injunction?

Domestic Violence Injunctions (DVI) appear to be the most abused pleading of the Court these days.  First, in order to file a domestic violence injunction, there must be a DOMESTIC relationship – like boyfriend and girlfriend who live together or have a child in common, husband and wife, or other people who live in the same household. Domestic Violence Injunctions do not apply to your neighbor, your spouse’s ex, your significant other’s ex, or someone you work with. Those are called  Repeat Violence Injunctions and require at lease two acts of violence or threats of imminent harm. If you have a question about that, please call me.

Many times, I see people in court who are not victims of violence, but rather victims of horribly annoying behavior by the other party. In order for a judge to grant a domestic violence injunction, the behavior needs to be more than “mere uncivil behavior that causes distress or annoyance.” See Power v. Boyle, 60 So. 3d 496 (Fla. 1st DCA 2011), but rather must place a person in fear of imminent harm. In a recent DCA case out of the First District, a circuit court judge granted a domestic violence injunction against a wife who used her husband’s email password to access his account, then used the personal information found in those emails to further her cause in a divorce case. She also changed his password so he could no longer access his own email. But the District Court said that behavior did not rise to the level of “stalking” or “cyberstalking” because it wasn’t the wife’s “own words” used to harass the soon to be ex-husband. In other words, had she written him harassing or threatening emails, or used his account and sent emails pretending to be him – it may have been enough. But merely changing the password and using his own emails against him was not enough to meet the threshold of evidence required for a domestic violence injunction.

So back to the original question, what is enough? Often, it depends on the judge who hears the case.  The judge is the ultimate fact finder and unless clearly wrong, an appellate court usually will not overturn the trial judge’s decision. (Note there are many legal standards on appeal, and they vary depending on circumstances and whether the case is civil or criminal) Acts of physical violence are usually enough. Threats to harm a person, that could reasonably be carried out, are usually enough. Harming a family pet, threats with weapons, abuse to a child who lives in the home – are all usually enough. Harassing and annoying behavior, sometimes is not enough.

The best thing to do if you are planning to file a DVI is to either hire a lawyer to represent you, and/or talk to an advocate in your local domestic violence shelter. The advocates are in court every day and sometimes they have better insight into a particular judge or set of facts than many of the lawyers. If someone has filed a DVI against you, you definitely need representation by a lawyer.

Pinellas Domestic Battery with Sex Toy

Last Wednesday the Treasure Island police arrested a woman for domestic battery.  That’s not the strangest part, because plenty of women are arrested for domestic battery, whether they are the aggressor or not.

This woman was arrested for “poking” her live in boyfriend with a sex toy.   According to the St. Petersburg Times article from Saturday, July 11, 2009; there was no allegation of injury or real threat of violence.  I guess, technically speaking, “poking” is a battery, which is any unwanted touching. But was this touching unwanted?  With a sex toy?

Apparently, he was the one who called the police.  And they arrested her.  Must of have been a slow night in the Treasure Island Police Department.  If this arrest isn’t a cry for why that agency needs to be consolidated into Pinellas County Sheriff’s Office, I’m not sure what is.

What this arrest shows is how “seriously” the police take domestic battery complaints.  Especially if someone is drunk.  In most instances, if the police are called to a domestic battery incident, someone gets arrested.   Especially if someone is drunk. So unless you are the victim of a crime or in fear for you safety, don’t call the police.  Their job isn’t to monitor your sex life.

Clearwater, Florida: Domestic Violence Injunctions

Is spanking a child enough reason for a judge to grant a domestic violence injunction?

NO.

In order to legally get a domestic violence injunction, it must be proven by the Petitioner, or on behalf of the Petitioner in the case of a child, that there is an immediate threat of harm or fear.

Florida law says that spanking is a reasonable form of punishment when it does not harm the child. In fact, spanking is a defense to a criminal charge of child abuse or a charge of child abuse under Florida Statute 39 which is the Dependency statute.

In this particular case, a divorced father spanked his 14 year old daughter one time for being disrespectful. The daughter testified that she was being sarcastic. While my personal opinion is generally against spanking, when every other form of discipline, such as taking things away, grounding, and time outs don’t work, spanking may be appropriate in some instances. G.C. v. R.S. and K.C., 1st DCA, 9/16/11

A parent or legal guardian of a child can file for a domestic violence injunction on behalf of the child, even if they themselves are not a victim. If your child is the victim of abuse, or someone is saying that you are an abuser – call Blackstonepc.com. Domestic Violence injunctions, although civil in nature, have the ability to cause criminal charges and take away various liberties such as one’s ability to own or purchase guns.